Judgment:
K. Gnanaprakasam, J.
1. The plaintiffs are the appellants herein. The plaintiffs have filed a suit for declaration that they are entitled to the first item of the suit property and for possession of the same, after the life time of Poongavanam Ammal, the 5th defendant.
2. It is the case of the plaintiffs that the suit property, originally, belonged to Agilandammal, the paternal grand mother of the plaintiffs. In and by the settlement deed, dated 19.1.1955, Agilandammal settled the suit properties in favour of Poongavannammal, the 5th defendant, giving life estate to her and the vested remainder to her sons. The said settlement deed was duly executed, attested and registered and it was also accepted by the settlee, Poongavannammal. Subsequently, Agilandammal and Poongavanammal, the 5th defendant jointly sold the suit first item to the defendants 3 and 4 under a sale deed dated 28.12.1963. In the said sale deed, there is a reference about the settlement deed dated 19.1.1955. Subsequently, the third defendant sold the first item to the second defendant under a sale deed dated 30.5.1967 and the second defendant sold the first item to the first defendant under a sale deed dated 2.7.1984. It is stated that as per the settlement deed dated 19.1.1955, Poongavanammal has got only a life interest and the vested remainder was given to her sons, who are the plaintiffs herein. According to the plaintiffs, the first defendant did not derive title under the sale deed dated 2.7.84, and he is only entitled to enjoy the property as long as the settlee Poongavanammal was alive.
3. The first defendant in his written statement has stated that Agilandammal was not the owner of the suit property, and she has no right to execute the settlement deed in favour of Poongavannamal, the fifth defendant. It is further stated that since the suit property is a joint family property, Agilandammal had no independent right to execute settlement deed in favour of the fifth defendant. It is further stated that even if Agilandammal is a heir to her husband's estate, the settlement deed was executed prior to coming into force of the Hindu Succession Act, and therefore, she had no right to execute the settlement deed in favour of the fifth defendant. It is further stated that the fifth defendant was minor at the time of execution of the settlement deed. The settlement deed in favour of the minor without guardian was not valid and it was a void transaction. It is further stated that Poongavannamal is the second wife of Thangavelu, and the settlement deed was executed for the purpose of marrying Poongavannamal to Thangavelu and the same is void and opposed to public policy. It is further stated that the first defendant purchased the property in the year 1984. In pursuance of the same, he has been in possession and enjoyment of the same. The suit has been filed only in the year 1996 only with a view to blackmail him.
4. Based upon the aforesaid pleadings, the trial court framed the following issues among other issues.
1. Whether the settlement deed dated 19.1.1955 was duly executed, and whether it is a valid one?
2. Whether the plaintiffs are entitled for a declaration and for possession after the death of Poongavannamal, the fifth defendant?
The first plaintiff was examined as P.W.1, and the plaintiffs' father Thangavelu was examined as P.W.2. The plaintiffs have filed documents, which are marked as Ex.A.1 to Ex.A.12. The first defendant was examined as D.W.1, and he has filed documents under Ex.B.1 to Ex.B.4.
5. The trial court, after considering the relevant facts and the materials, came to a conclusion that the settlement deed executed by Agilandammal in favour of the fifth defendant is valid, and also considered all other issues carefully and decreed the suit. As against the same, the first defendant preferred an appeal in A.S.No.42 of 2000 before the learned Principal District Judge, Tiruvannammalai. The lower appellate court had observed that the settlement deed is not a valid one and it was also not properly proved. It further held that the first defendant purchased the property in the year 1984 and the suit was filed in the year 1996. Therefore, the suit is barred by time, and thereby, allowed the appeal. Aggrieved by the same, the plaintiffs have preferred this second appeal.
6. When the appeal came up for admission, this Court ordered notice of motion. All the respondents were served and the first respondent is duly represented by his Advocate.
7. The learned Advocate for the appellants has raised the following substantial questions of law in this appeal:
1. Whether the Lower Appellate Court is correct in law in holding that Ex.A.1 has not been proved in accordance with law overlooking the fact that the same has been marked without any objection and has also been acted upon?
2. Whether the Lower Appellate Court is correct in holding that the suit is hit by limitation?
3. Whether the Lower Appellate Court is correct in law in holding Ex.A.1 is hit by Section 6(k) of the Transfer of Property Act, read with Section 23 of the Indian Contract Act as being opposed to public policy?
8. The learned Advocate for the appellants has submitted that the suit property originally belonged to Agilandammal as she had purchased the same under Ex.A.12, sale deed dated 21.2.1941, and therefore, Agilandammal was the absolute owner and she can deal with the property in any manner as she likes. As the absolute owner, Agilandammal had executed a settlement deed in favour of the fifth defendant on 19.1.1955 giving life estate to her and the vested remainder to her male issues. A plea was taken by the respondents that the fifth defendant was minor at the time of execution of settlement deed and the same was executed without any guardian, and hence, the same is not valid. A perusal of the settlement deed would go to show that the fifth defendant was not a minor, but, whereas she was major on the date when Agilandammal had executed the settlement deed on 19.1.1955, and therefore, the plea taken by the respondents that the fifth defendant was minor would fall to ground. The fifth defendant's husband Thangavelu was examined as P.W.2, who in his evidence had stated that the fifth defendant was aged at 19 years on the date of the settlement deed, and she had accepted the settlement deed. At the time of filing of the suit, there was an error in showing the age of the fifth defendant as 50 years. Subsequently, the same was amended as 60 years. The said amendment was objected to by the defendants. But, the same was allowed. In view of the fact that the suit property was purchased by Agilandammal under Ex.A.12, she had every right to execute a settlement deed and the same cannot be questioned. P.W.2 has spoken about the settlement deed and his evidence was an acceptable one. Only under the stated circumstances, the trial court came to the conclusion that the settlement deed was duly executed, attested and registered and it is also a valid document. But, however, the Lower Appellate Court was of the view that Ex.A.1, settlement deed was not properly proved as the fifth defendant, Poongavanammal was not examined. The Lower Appellate Court had also observed that the fifth defendant was aged at 9 years on the date of settlement deed, and also found fault with the non production of the original settlement deed. The said observation of the Lower Appellate Court is not correct in the teeth of the evidence given by P.W.2, Thangavelu, the husband of the fifth defendant, who had deposed that the fifth defendant was aged at 19 years at the time of settlement deed and the fifth defendant had also accepted the settlement deed, and there is no evidence contra to the same. Therefore, the Lower Appellate Court is not correct in coming to the conclusion that the settlement deed was not properly executed, attested and registered. The non production of the original settlement deed was not questioned by the defendants and the mere non production of the original settlement deed would not affect the case of the plaintiffs, unless the very settlement deed is challenged. But, on the other hand, the settlement deed has been accepted and the challenge is only to the extent that Agilandammal had no right to execute the settlement deed. In the said circumstances, the non production of the original settlement deed does not matter much and the observation of the Appellate Court that the non production of the original settlement deed also would go against the plaintiffs cannot be countenanced. In view of the same, the observation of the Lower Appellate court that Ex.A.1 has not been proved is hereby set aside.
9. The next question to be decided is whether the suit is barred by limitation? It is the case of the first defendant that he had purchased the suit property under Ex.A.4, a sale deed dated 2.7.84. But, the suit was filed only on 24.6.1996, i.e. within 12 years from 02.07.1984, i.e. the date on which the first defendant had purchased the property. Even otherwise the suit is not barred by time for a simple reason, as long as the fifth defendant is alive, the plaintiffs need not even file a suit. Admittedly, the fifth defendant is the owner of the life estate and the plaintiffs are entitled to the vested remainder, and therefore, there is no question of limitation in filing the suit as long as the fifth defendant is alive. The observation of the Lower Appellate Court that the suit is barred by time is not correct and the same is hereby set aside.
10. The next question to be decided is whether the settlement deed, Ex.A.1 is hit by Section 6 of the Transfer of Property Act read with Section 23 of the Indian Contract Act. Section 6 of the Transfer of Property Act deals with what kind of property may be transferred. Section 6(h) of the Transfer of Property Act reads as follows:
'No transfer can be made (1) insofar as it is opposed to the nature of the interest affected thereby or (2) [for an unlawful object, or consideration within the meaning of Section 23 of the Indian Contract Act, 1872 (IX of 1872)], or (3) to a person legally disqualified to be transferee.'
The Advocate for the respondents submitted that on the date when the settlement deed was executed in favour of the fifth defendant, her husband was having first wife and the fifth defendant was the second wife. The property was given to the fifth defendant to marry her as second wife, and the second marriage was opposed by law at that time, and therefore, the right given under Ex.A.1 to the fifth defendant was opposed to public policy. But the evidence of P.W.2, Thangavelu, the husband of the fifth defendant, would reveal that he had already divorced his first wife and married the fifth defendant. At that time, the marriage between P.W.2 and his first wife was not subsisting. Therefore, it cannot be said that the settlement deed executed as a consideration for the second marriage was opposed to public policy. Further settling property for the 2nd wife at or before the time of marriage, can not be said to oppose to public policy. Agreements in restraint of marriage is considered as opposed to Public Policy. Settlement is made only by way of security for the second wife and it is not forbidden under law.
11. Section 23 of the Indian Contract Act, 1872 speaks about the consideration and objects, which are lawful and unlawful, reads as under:
'The consideration or objects of an agreement is lawful, unless, it is forbidden by law or is of such a nature that if permitted, it would defeat the provision of any law; or is fraudulent; or involves or implies injury to the person or property of another; or the Court regards it as immoral, or opposed to public policy.
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful, is void.'
Even this section does not bar the settling of property in favour of the 2nd wife and that therefore the settlement deed in favour of the fifth defendant does not fall in any of the condition stipulated in the section, and therefore, it cannot be said that the settlement deed in favour of the fifth defendant is opposed to public policy. The Lower Appellate Court's observation to this effect is not correct.
12. In view of the findings arrived at above, I am of the considered view that the Lower Appellate Court is not correct in holding that Ex.A.1 was not proved, in accordance with law, the suit is barred by time and Ex.A.1 is also against the provisions of Section 23 of the Indian Contract Act. Therefore, the decree and judgment of the Lower Appellate Court are liable to be set aside. Accordingly, they are set aside.
13. In the result, the second appeal is allowed. The judgment and decree of the Lower Appellate Court is set aside. The decree and judgment of the trial court is restored. Consequently, connected CMP is closed.