P.K. Mohanram vs B.N. Ananthachary & Ors

3. Shri K. Perumal Iyer died on 4.12.1972. After his death, the appellant filed a suit (O.S. No.626/1972) for appointment of receiver to carry out the directions mentioned in the `Settlement Deed'. The trial Court decreed the suit, but on appeal, the High Court reversed the decree of the trial Court and dismissed the suit with an observation that the same shall not operate as res judicata against the fresh suit which may be filed by the plaintiff (appellant herein). After disposal of the appeal, the appellant filed O.S. No.858 of 4 1979 for partition of his 1/17th share in the suit property and for grant of a declaration that in view of the negative covenant contained in the `Settlement Deed', the settlor had no right to execute Revocation Deed dated 27.2.1970 or Will dated 30.7.1972. In the written statement filed by defendant Nos.1 and 2 (respondent Nos.1 and 2 herein), it was claimed that the appellant and his brothers and sisters obtained the `Settlement Deed' by playing fraud and on discovery thereof, Shri K. Perumal Iyer executed `Revocation Deed' and then executed the `Will' whereby he bequeathed the property in their favour. They also pleaded that the suit filed by the plaintiff (appellant herein) is barred by Order II Rule 2 of the Code of Civil Procedure (CPC) because the earlier suit filed by him for appointment of receiver for carrying out the directions contained in the `Settlement Deed' was dismissed by the High Court in A.S. No. 374/1974.

5. After considering the pleadings and evidence of the parties and hearing their advocates, the trial Court vide its judgment dated 24.4.1982 held that document marked Ex.A-2 was `Settlement Deed' and not `Will' and that the same was not executed as a result of fraud or misrepresentation and that the settlor did not have the right to execute `Revocation Deed' Ex.B-2 and `Will' Ex.B-3. The trial Court further held that the second suit filed by the plaintiff is not barred by res judicata or Order II Rule 2 CPC. In the end, the trial Court declared that the plaintiff is entitled to partition of the suit property and accordingly passed a preliminary decree in his favour.

12. In Usha Subbarao v. B.N. Vishveswaraiah (1996) 5 SCC 201, a two-Judge Bench was called upon to consider whether the appellant is entitled to share of her husband in the properties left by her father-in-law, 15 Dr. N.S. Nanjundiah on the basis of a Will executed by him. The appellant pleaded that the respective shares of the sons of the testator including her husband vested in them as per the Will and after the death of her husband, she is entitled to the share of her husband. The trial Court held that the succession opened on the death of the testator by virtue of which all his sons became entitled to equal shares in the properties and the recital in the Will that the partition should take place amongst the surviving children after the death of Smt.Nadiga Nanjamma is really intended to refer to the children surviving the testator. This view of the trial Court was reversed by the High Court and the suit was dismissed. This Court referred to Sections 19 and 21 of the 1882 Act, Sections 119 and 120 of the Indian Succession Act and reiterated one of the propositions laid down in Rajes Kanta Roy v. Santi Devi (supra) by making the following observations:

2. Shri K. Perumal Iyer, who owned the suit property, executed Settlement Deed dated 27.3.1969 in favour of the appellant, respondent Nos.1 and 2 and 13 others and declared that from the date of execution he and the beneficiaries shall enjoy the land and house etc. without creating any encumbrance or making any alienation whatsoever. He further declared that during his life, he will collect the rental income from the land and house and after paying the municipal taxes, remaining income would be spent by him according to his choice; that after his death, the property shall be sold at the prevailing market price by all 16 beneficiaries and out of the sale proceeds, a religious trust should be created by paying Rs.4,000/- to Devasthanam of Sri Prasanna Venkatesa Perumal in the office of the Saurashtra Sabha at Madurai for the purpose of taking out annual procession of Perumal in the sacred streets on Amavasai day in the month of Margazhi; that the honors of the temple should be bestowed upon beneficiary Nos.1 and 2 and, after them, upon their heirs; that from the sale proceeds, the beneficiaries shall purchase an immoveable property of Rs.4,000/- in the name of Balu G. Perumal Iyer Feeding Charities and all 16 trustees shall provide for feeding of his relatives on the day of the procession of the deity (Perumal) and that if there is delay in purchasing the immovable property, the beneficiaries shall be free to advance the money on interest for the purpose of generating income which could be used for feeding; that his last rites shall be performed 3 by beneficiary Nos.1 and 2 and all 16 persons shall together spend Rs.2000/- from their personal funds for that purpose. The settlor also indicated that he had mortgaged the land and house to Ramaseshan and Co. vide Mortgage Deed dated 24.3.1969 for a sum of Rs.1500/- which shall be redeemed by him and in the event of death before redemption, all 16 beneficiaries shall discharge the debt. The settlor further ordained that after deducting Rs.8,000/- from the sale price, the balance amount should be divided into 17 shares of which beneficiary Nos.1 and 2 shall take three shares and beneficiary Nos.3 to 16 shall take one share each. If any one of 16 beneficiaries was to die before sale of the property, the remaining persons were to get absolute right to sell the property. The settlor finally recorded that he shall have no right whatsoever to cancel the `Settlement Deed' for any reason whatsoever or alter the terms thereof.

Since then I have been in uninterrupted possession and enjoyment of the same on payment of municipal taxes and so on. You 16 persons being my relatives and considering your welfare and mine and out of my love and affection for you, I settle this property on you 16 persons by executing this settlement deed. From this day onwards I and you shall enjoy the under mentioned land and house etc. without creating any encumbrance or making any alienation whatsoever. During my lifetime I shall collect the rental income from the under mentioned land and house etc. and after paying the municipal taxes, with the remaining income I shall spend my life as I wish till the end of my days. After my death, you 16 persons shall 9 become eligible and have absolute right to sell the under mentioned land and house at the prevalent market price. Out of the sale proceeds thus received, you should create a religious trust by paying Rs.4,000/- to the Devasthanam of Sri Prasanna Venkatesa Perumal in the office of the Saurashtra Sabha at Madurai for the purpose of taking out annual procession of Perumal in the sacred streets on Amavasai day in the month of Margazhi. The honors at the temple should be bestowed upon persons 1 and 2 among you and after them upon their heirs. Further, from the sale proceeds, you should purchase an immoveable property for Rs.4,000/- in the name of Balu G. Perumal Iyer Feeding Charities and you 16 persons as trustees should provide for feeding of my relations on the day of the procession of the deity (Perumal). Should there be any delay in purchasing the immovable property, you 16 persons would be fully entitled to advance money on interest or by mortgage to generate income for the feeding. Upon my death, whoever among 1 and 2 of you is present shall perform my last rites and all you 16 persons shall together spend upto Rs.2,000/-from your personal funds for that purpose. During my life time, I myself shall redeem the mortgage of the undermentioned land and house which I had mortgaged to Rameseshan & Co. of Madurai by a mortgage deed dated 24.3.1969 for a sum of Rs.1500/-. In the event I die before redeeming the mortgage, you 16 persons shall discharge that debt. As mentioned above, after deducting Rs.8,000/- from the sale price, the balance amount should be divided into seventeen shares. 1 and 2 among you shall take three shares, 3 to 16 among you shall take one share each. 1 and 2 among you shall divide the three shares equally between you. If anyone of you 16 persons dies before the sale of the property, the remaining persons excluding the deceased shall have the absolute right to sell the property. I shall have no right whatever to cancel this settlement deed for any reason whatsoever or to alter these terms. I execute this settlement deed of my own free will."

(emphasis supplied)

(emphasis supplied)

(emphasis supplied)

24. In the result, the appeal is allowed. The impugned judgment is set aside and those of the trial Court and the lower appellate Court are restored. The parties are left to bear their own costs.