IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19.01.2011 CORAM: THE HON'BLE MR. JUSTICE R.S. RAMANATHAN S.A. No.519 of 1997 K.Chinnathambi .. Appellant Vs. 1.S.Shanmugam 2.Chinnammal 3.Seeranga Gounder .. Respondents SECOND APPEAL filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 29.06.1993 made in O.S.No.241 of 1990 on the file of the Second Additional District Munsif Court, Erode as reversed the Judgment and Decree dated 23.11.1995 passed in A.S.No.169 of 1993 on the file of the Sub Court, Erode. For Appellant : Mr.R.Krishnan for Mr.A.Sivaji For Respondents : Mr.A.K.Kumarasamy for R1 (R2 and R3 died) JUDGMENT The second defendant in O.S.No.241 of 1990 is the appellant. The first respondent herein filed a suit for declaration and permanent injunction. 2. The case of the first respondent/plaintiff was that the property belonged to his father, the third defendant in the suit, and he had kept the first defendant as his concubine and thereafter he executed a settlement deed dated 05.06.1978 in favour of the first defendant, who was his concubine and under the settlement deed the first defendant was entitled to enjoy the property and after her life time, the property must go to the plaintiff and the first defendant has no manner of right to execute the sale deed and the third defendant also did not have any right over the property and after the execution of settlement deed in favour of the first defendant and the plaintiff, the first defendant and the second defendant have entered into an agreement of sale on 10.02.1990, whereby the first defendant agreed to sell the property to the second defendant and therefore the suit was filed for declaration and permanent injunction. 3. The first defendant filed a statement stating that the third defendant executed a settlement deed in her favour on 05.06.1978 and https://hcservices.ecourts.gov.in/hcservices/ as per the settlement she has to enjoy the property till her life time and thereafter the plaintiff should get the property and after the settlement the first respondent/plaintiff is enjoying the property by doing cultivation and the plaintiff is the absolute owner of the property and also denied entering into an agreement of sale with the second defendant. She further stated that she has no objection for granting the relief of declaration to the plaintiff. 4. The appellant/second defendant filed a statement stating that under the settlement deed, the first defendant became the absolute owner of the property and possession was handed over to the first defendant and the plaintiff cannot claim any title to the property, as the property was settled in favour of the first defendant by the third defendant and as the owner, the first defendant entered into an agreement of sale with the second defendant and therefore the agreement of sale is valid and the plaintiff cannot claim any title to the property. The third defendant filed a separate statement stating that he executed the settlement deed in favour of the first defendant and the plaintiff and as per the settlement deed the first defendant has to enjoy the property absolutely and after her life time the remaining property shall go to the plaintiff and the first defendant has no right of alienation and plaintiff is the absolute owner of the property. 5. The trial court dismissed the suit holding that as per the settlement the plaintiff cannot claim any right and after the life time of the first defendant, if any property is left by the first defendant the same can be enjoyed by the plaintiff and the first defendant was entitled to alienate the property and she is entitled to enter into an agreement of sale and that cannot be prevented. Aggrieved by the same, the first respondent/plaintiff filed an appeal in A.S.No.169 of 1993 on the file of the First Additional Sub-Court, Erode and the learned Sub-Judge allowed the appeal holding that as per Ex.A1 settlement deed, the first defendant was given only life interest and vested reminder was given to the first respondent/plaintiff herein and therefore the first respondent/plaintiff is entitled to the relief of declaration. Aggrieved by the same, the second appeal is filed by the second defendant. 6. At the time of admission, the following substantial question of law was framed:- "Whether the document Ex.A1 was properly interpreted by the appellate Court or whether the interpretation is opposed to law." 7. It is submitted by Mr.R.Krishnan, the learned counsel appearing for the appellant that the interpretation of Ex.A1 by the Lower Appellate Court is not correct and as per Ex.A1 the first https://hcservices.ecourts.gov.in/hcservices/ defendant was given absolute power over the property and being a settlement the property vested with the first defendant, on the date of execution itself and in the first part of the document it has been specifically stated that property has been given to the first defendant and the first defendant was given absolute right to enjoy the property and the same cannot be curtailed by the later clause and therefore in a case of settlement, the earlier part of disposition must be taken into consideration and as per Ex.A1 absolute right was given to the first defendant to enjoy the property as absolute owner and therefore the first defendant became the absolute owner of the property and the interpretation of the Lower Appellate Court that the first respondent/plaintiff is having vested interest and he is entitled to the property cannot be sustained. 8. On the other hand Mr.A.K.Kumarasamy, learned counsel appearing for the first respondent/plaintiff submitted that under the documents Ex.A1 vested reminder was given to the first respondent/plaintiff and the document must be read as a whole and if so read the first defendant was given right to enjoy the property including the right of alienation and whatever remains after the life of the first defendant, the same shall be inherited by the plaintiff and therefore any property alienated by the first defendant during her life time cannot be questioned by the plaintiff/first respondent. He further submitted that during the pendency of the second appeal, the first defendant and the third defendant died and the first respondent/plaintiff herein being the legal heir to them, became the absolute owner of the property and further contended that the appellant has no right to maintain the second appeal as he is only an agreement holder and an agreement of sale will not give any right over the property and his only right is to file suit for specific performance of contract on the basis of the agreement of sale and hence he cannot maintain the second appeal. 9. Heard the learned counsel for the appellant and the learned counsel for the first respondent/plaintiff. 10. To appreciate the contention of both the learned counsel the recitals in the settlement deed have to be considered and they are as follows: @,e;j jhdr; brl;oy;bkd;l; rhrdj;jpd; K:yk; ghj;jpag;gLj;jpf; bfhLj;Jr; brhj;Jf;fisa[k; ,d;nw cdJ !;thjPd mDgyj;jpYk; tpl;Ls;nsd; ,d;W Kjy; moapw; fz;l brhj;Jf;fis rh;t Rje;jpu ghj;jpakhf Mz;lDgtpj;Jf; bfhz;L tuntz;oaJ c';fs; Ma[Sf;Fg;gpd; kPjKs;s brhj;Jf;fis vdJ kfDk; c';fSila !;tPfhug; g[jy;tDkhd rz;Kfj;ij rh;t Rje;jpu ghj;jpakhfr; nruntz;oaJ ,dpnky; moapw;fz;l brhj;Jf;fspd; kPJ vdf;F ghj;jpankh c';fisj; jtpu ntW vd; ,ju thhpRfSf;nfh vt;tpj ghj;jpaKk; fpilahJ/@ 11. Under the above settlement in the first part, the third defendant gave an absolute right to the first defendant and https://hcservices.ecourts.gov.in/hcservices/ thereafter stated that if any property is left undisposed of by the first defendant, the same shall be taken by the first respondent/plaintiff herein absolutely. A combined reading of both the clauses would reveal that the executor wanted the first defendant to enjoy the property absolutely with all powers of alienation and if any properties are left undisposed of by the first defendant, the same shall be enjoyed by the plaintiff absolutely. Therefore both clauses can be read together and if so, the plaintiff will get absolute right in respect of the properties which are not disposed of by the first defendant. Therefore, there is no inconsistency between the first clause and second clause and as per the first clause the first defendant was given the absolute right of alienation over the property and if any property is undisposed of by the first defendant, after her life time the same shall be enjoyed by the first respondent/plaintiff. In this case, the first defendant had only entered into an agreement of sale with the appellant herein and by entering agreement of sale it cannot be contended and that she has disposed of the property. Therefore, the subject matter of the suit remains undisposed of by the first defendant and as per the settlement deed, the first respondent/ plaintiff became the absolute owner of the property as the first defendant also died during the pendency of the second appeal. Hence as per the interpretation given to the settlement deed Ex.A1, the first respondent/plaintiff became absolute owner of the property if any property is left undisposed of by the first defendant and the first defendant died without disposing of the suit property, the plaintiff became the absolute owner of the property and therefore the plaintiff is entitled to declaration. Further as rightly contended by the learned counsel appearing for the first respondent/plaintiff that the appellant is only an agreement holder and an agreement of sale will not confirm any right over the suit property and therefore he cannot maintain the second appeal in the capacity of an agreement holder. I therefore answer the substantial question of law against the appellant and the second appeal is liable to be dismissed and accordingly it is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar vs To 1.The Second Additional District Munsif Court, Erode. https://hcservices.ecourts.gov.in/hcservices/ 2.The Sub Court, Erode. 3.The Section Officer, V.R.Section, High Court, Madras 1 cc To M/s.A.Sivaji, Advocate, SR.4005 S.A. No.519 of 1997 VC(CO) SRA (13/05/2011) https://hcservices.ecourts.gov.in/hcservices/