S KRISHNAMMAL DIED Vs. VEERAPUTHIRAN PILLAI

JUDGEMENT

(1.) THE unsuccessful defendants in O.S.No.609 of 1979 and the unsuccessful plaintiffs in O.S.No.224 of 1980 on the file of District Munsif's Court, Ambasamudram, have filed the Second Appeal Nos.2062 and 2063 of 1985 respectively.

(2.) THE case in brief is as follows: THE plaintiffs in O.S.No.609 of 1979 filed a suit for partition and separate possession and enjoyment of their half share in the plaint schedule properties, which were intended for joint enjoyment by plaintiffs defendants 1 and 4. Till the lifetime of the 1st defendant. THE schedule properties belonged to the 1st defendant and she executed a registered settlement deed on 23.1.1978 in favour of the plaintiffs and the 4th defendant. According to the document, the plaintiffs, and defendants 1 and 4 have joint life estate without any power for alienation. During the lifetime of the 1st defendant and after her death only the 4th defendant will have only life interest without any power of alienation. After the demise of the 4th defendant, the plaintiffs will have absolute right and ownership in the properties, THE settlement deed has come into force. In pursuance of the settlement. the plaintiffs. Who are residing in Kattupulli Palla Street, shifted the residence to door No.57 of the schedule property. THE 1st defendant has no right, whatsoever, to cancel the document. THE 1st defendant had no power to cancel the same and it finds a place in the document itself, THE 2nd defendant and her husband have sufficient property. Defendants 2 and 4 were married to one persons viz., Arumugham Pillai. He neglected the 4th defendant and she has been living with the 1st defendant for the past 20 years. THE 2nd plaintiff was brought up by the 1st defendant and was given in marriage. Defendants 1 and 4 are living in the house bearing door No.58. THE 2nd defendant is residing in her own house. THE shop bearing door No.207 was let out to third party for rent. As the 2nd defendant was not given any property she approached the first defendant with pretention of affection and induced her to execute a cancellation of the original settlement deed, THE cancellation deed is invalid under law. It will not affect the rights of the plaintiffs and the 4th defendant. It appears that the first defendant had executed a settlement deed in favour of defendants 2 and 3 subsequently and they were executed in fraudulent manner. THE plaintiffs also sent a notice to the defendants. Hence, the suit.

(3.) AT the time of admission of these second appeals, the following substantial questions of law were framed. (1) Whether the lower appellate court is right in holding that Ex.B-1 was true, when it is admitted by P.Ws.1 and 2 that Krishnammal was an old infirm, totally deaf and illiterate woman and that she did not have any independent advice and when the respondents did not discharge the burden of proving the execution of Ex.B-1 by Krishnammal voluntarily. (2) Whether Ex.B-1 is a document testamentary on a proper construction, when there are no clauses conveying or vesting title in praesenti.