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2002 DIGILAW 92 (MAD)

Apparasu Pillai v. Patchaiammal

2002-02-11

K.SAMPATH

body2002
Judgment : 1. The plaintiff in O.S.No.199 of 1973 on the file of the Principal Subordinate Judge, Pondicherry is the appellant in the second appeal. 2. He filed the suit against his three sisters and one Pakkiri, husband of one of the sisters Vijayam for declaration that he was the exclusive and absolute owner of the suit property, to evict the third defendant from the portion of the suit property in her occupation and deliver possession of the same, for permanent injunction restraining the defendants from interfering with his possession, to direct the defendants to pay mesne profits at Rs.20/-per month from 17.10.1972 till delivery of possession, and to recover the uncollected rent from the defendants at the rate of Rs.36 per month on the following averments: The suit property belonged to one Murugesa Pillai, who died about 33 years prior to the suit, leaving behind his wife Thayanayagi, son/plaintiff, and three daughters/defendants 1 to 3. The plaintiff became entitled to the suit property on the death of Murugesa Pillai as his only son and the sole heir. On 12.6.1967, he mortgaged the suit property to one Gunasekaran for Rs.1,500/-for repairing the suit house and constructing tiled roofs in the place of thatched roof. He allowed the third defendant to reside in a portion of the suit property since she came away from her husband's house on account of misunderstanding. He was maintaining his mother, and, out of pity, his sister/third defendant also. Mother died in 1971. On 17.10.1972, the fourth defendant issued a lawyer notice alleging that he and the other defendants had inherited the suit property. He also claimed that he got transfer of the mortgage amount and demanded the plaintiff and the defendants to pay interest and redeem the mortgage. The plaintiff sent a reply stating that defendants 1 to 3 had no right in the suit property. On 1.2.1973, he asked the third defendant to vacate the portion of the suit property occupied by her and set out in 'B' schedule. As defendants 1 to 3 were interfering with the possession and enjoyment of the remaining portion and preventing the tenants, occupying another portion, from paying the rent to the plaintiff, the third defendant was liable to pay rent at the rate of Rs.20 per month. They were also liable to pay the rent, uncollected by the plaintiff, and collected by them. 3. They were also liable to pay the rent, uncollected by the plaintiff, and collected by them. 3. Defendants 2, 3 and 4 filed a written statement contending inter alia as follows: The third defendant was forced to leave the conjugal home of her husband 18 years before suit and take asylum in her paternal home. The mother of the parties was living in the house. The third defendant was entitled to protection and maintenance from her mother and her brother. She was in possession and enjoyment of the suit property for over 18 years in lieu of her maintenance, and she had become the absolute owner of the suit property along with her brother/plaintiff. The mother resided in the suit pr operty till her death in 1971. She was in possession and enjoyment in lieu of her maintenance, and her limited estate got enlarged into an absolute one. Thus, the plaintiff’s mother as well as the third defendant became absolute owners of the suit property along with the plaintiff, and each taking 1?3rd share. On the death of the plaintiff’s mother, her 1?3rd share devolved on plaintiff and defendants 1 to 3, in equal share and each became entitled to 1?12 share in addition to his/her 1?3 share. Defenda nts 2 and 3 were entitled to 5?12th share each. Since the suit property originally belonged to Akilandammal, the grand mother of the parties, her daughter should inherit as per the then existing law. Since she had no female issue, her son inherited the suit property from her mother and therefore the male and female heirs of Akilandammal's son were entitled to inherit the suit property in equal share. The plaintiff was not entitled to injunction against the third defendant residing as co-owner. He was not entitled to any mesne profits. The defendants were not liable for uncollected rents. 4. On the pleadings, the trial Court framed the following issues: "1. Whether the plaintiff is absolute owner of the suit property? 2. Whether the defendant are entitled to any share in the suit property? 3. Whether the plaintiff is entitled to mandatory injunction against the defendants? 4. Whether the defendants are liable to pay any mesne profit? 5. To what relief are the parties entitled? 5. On the side of the plaintiff, he examined himself as P.W.1. Documents - Exs.A.1 to A.7 were marked. 3. Whether the plaintiff is entitled to mandatory injunction against the defendants? 4. Whether the defendants are liable to pay any mesne profit? 5. To what relief are the parties entitled? 5. On the side of the plaintiff, he examined himself as P.W.1. Documents - Exs.A.1 to A.7 were marked. Exs.A.1 to A.5 being the copies of lawyer's notices and Ex.A.6-series being the three acknowledgments with receipts, and Ex.A.7 being the receipts for payment of house tax for the period 1.4.80 to 31.3.81 and 1.4.82 to 31.3.84. On the side of the defendants, the third defendant examined herself as D.W.1 and marked Ex.B.1, dt.12.6.1967 being the Mortgage deed executed by the plaintiff in favour of Gunasekaran. 6. On issue No.1, the learned Subordinate Judge held that the plaintiff is the sole proprietor of the property subject to finding relating to the rights of the third defendant to occupy the property to be decided under the relevant issue. 7. Onissue No.2, the learned Subordinate Judge held that the third defendant was receiving Rs.100 per month as pension from her husband's office, that there was no justification for her to claim a right of maintenance in the suit property as contended by her, and that it would be reasonable to allow her to continue her possession till her life time without any other liability from the plaintiff. 8. On issue No.3, the learned Subordinate Judge held that the plaintiff is not entitled for an injunction against the third defendant in respect of her right or residence occupied by her in the suit property. 9. On issue No.4, the learned Subordinate Judge held that the plaintiff is not entitled to any mesne profits from the third defendant, but entitled to receive and collect rent arrears if any from the tenants according to law. On issue No.4, the learned Judge further held that the plaintiff was liable to pay Rs. 1,500 being the mortgage amount under Ex.B.1 for redemption of property by defendants 2 and 4 within three months from the date of the judgment and the fourth defendant was entitled to recover only this amount by way of execution if the plaintiff failed to pay the amount. By judgment and decree dt. 1,500 being the mortgage amount under Ex.B.1 for redemption of property by defendants 2 and 4 within three months from the date of the judgment and the fourth defendant was entitled to recover only this amount by way of execution if the plaintiff failed to pay the amount. By judgment and decree dt. 15.4.1987, the learned Subordinate Judge held that the plaintiff is the absolute owner of the suit property, subject to the right of residence and enjoyment of the 'B' Schedule property by the third defendant till her life time, and that the plaintiff was entitled to injunction against defendants 1, 2 and 4 from interfering with the peaceful possession and enjoyment of the suit property including right to collect rents from other tenants, and that the plaintiff was to redeem the mortgage by paying Rs. 1,500 to the fourth defendant. 10. However, on appeal by the third defendant in A.S.No.177 of 1987, the learned II Additional District Judge, by judgment and decree, dt.4.7.1989 allowed the appeal and dismissed the suit filed by the plaintiff, however, giving him liberty to file a separate suit for partition if he so desired. While coming to such a conclusion, the learned Judge rejected the plaintiff’s case that he was the absolute owner of the suit property, that the third defendant would be a sharer and she would be entitled to 5? 12 sh are in the suit property, and that she would also be entitled to be paid the mortgage money of Rs. 1,500 with interest. It is as against this, the present second appeal has been filed. 11. At the time of admission, the following substantial questions of law were raised for decision: "Whether there has been a proper appreciation and application of the provisions of Sec. 14(1) of the Hindu succession Act to the facts of the case by the lower appellate Court? 2. Whether the lower appellate Court has properly appreciated and applied the provisions of the Hindu Adoptions and Maintenance Act to the facts of the present case? 3. Whether there has been a misconstruction and omission to construe the material evidence on record when the lower appellate Court chose to reverse the judgment and decree of the first Court? 12. 2. Whether the lower appellate Court has properly appreciated and applied the provisions of the Hindu Adoptions and Maintenance Act to the facts of the present case? 3. Whether there has been a misconstruction and omission to construe the material evidence on record when the lower appellate Court chose to reverse the judgment and decree of the first Court? 12. After hearing both counsel and after going through the judgments of the Courts below, I am of the view that both the Courts have not properly appreciated the questions arising for decision and the proper law applicable to the facts of the present case. 13. As regards the legal position, both counsel are practically agreed on what follows in this judgment. The facts not disputed are, the suit property belonged to one Akilandammal having been purchased by her on 31.12.1904. She died in 1920 or 1921 leaving behind an only heir her son Murugesa Pillai. Murugesa Pillai died in 1940 leaving behind his wife Thaiyanayagi, son/plaintiff and daughters/defendants 1 to 3. The fourth defendant is the husband of the second defendant Vijayam. Vijayam died pending the proceedings. Murugesa Pillai was the sole surviving heir of his mother Akilandammal. He became the absolute owner of the suit property on the death of Akilandammal in 1970 or 1971. Murugesa Pillai's wife Thaiyanayagi would be entitled to a half share. That appears to be the correct legal position. In Amos & Walton's Introduction to French Law, III Edition, dealing with Intestate Succession, when it comes to the surviving spouse, it is stated in page 299 as follows: (E) THE SURVIVING SPOUSE The rights of succession of the surviving spouse (conjoint survivant) have been steadily enlarged by legislation since the Code. The code, following the earlier law, was content to call the spouse to the succession only in default of collaterals within the twelfth degree. It must be remembered, however, that the spouse had, and has still, the rights secured to him or her by the matrimonial regime; and one spouse can always make express provision for the other by will or gift. By the laws of 1891 and 1925 the surviving spouse secured a usufruct in competition with heirs of any order, although the fraction of the usufruct varied according to the order of heirs. By the laws of 1891 and 1925 the surviving spouse secured a usufruct in competition with heirs of any order, although the fraction of the usufruct varied according to the order of heirs. In 1930 the system of the fente was utilized to give to the spouse in full ownership the half of the estate where there was a complete failure of heirs in only one line. In 1957 the spouse was raised above the ordinary collaterals in the order of devolution. Finally, in 1958 the spouse lost the character of an irregular successor by being endowed with saisine. In one important respect, however, the surviving spouse lacks the quality of heir: the spouse has not yet been given any reserved share in the succession of which the spouse cannot be deprived by will or gift. 14. When Murugesa Pillai died in 1940, the position was that she became entitled to one half of his estate and the plaintiff became entitled to the other half. The daughters were not heirs to Murugesa Pillai. Thaiyanayagi died in 1971 and her share would be taken equally by the plaintiff and defendants 1 to 3 by each getting 1?8. The plaintiff would be getting 1?2+ 15. The lower appellate Court has, by a strange reasoning, held that the third defendant would be entitled to a right of maintenance by the estate of her deceased father and admittedly she having been in possession of a portion of the suit property, after the Hindu Succession Act, her right would get enlarged and she would get her share, which had been quantified by the learned District Judge at 1?3 exclusively. Apart from that, according to the learned District Judge, as heir to her mother, she would be entitled to of 1?3 in all 5?12. 16. In French Civil Code, dealing with MAINTENANCE RIGHT, Articles 203 to 208 run as follows: 203. By the act itself of marrying, parties mutually bind themselves to feed, support and educate their children (C.208 and following; 349,384 and following; 762, 852, 1409, 1448,1556, 1558). 204. A child has no right of action for a settlement on marriage or other wise against his father and mother. 205. (Law, 9th March, 1891, Art.2) - Children are bound to support their father and mother and other ascendants, who are in want. 204. A child has no right of action for a settlement on marriage or other wise against his father and mother. 205. (Law, 9th March, 1891, Art.2) - Children are bound to support their father and mother and other ascendants, who are in want. Under such circumstances the succession of a deceased husband or wife is liable to support the surviving wife or husband. Such support must be claimed within one year from the death, and the right to claim support continues in case there is a partition until the termination of the same. The aliment allowance is a first charge on the inheritance. It must be borne by all the heirs, and if there is no sufficient property, by each legatee in proportion to what he receives. If, however, the deceased has expressly declared that a certain legacy shall be paid in priority to the rest, Art.927. C. Civ., shall be applied. (C.203,207 and following; 349,955, 1558). Under the same circumstances sons and daughters in law are also bound to support their father and mother in-law; but this duty ceases (1) when the mother-in-law marries again; (2) when both the husband (or wife) through whom there is affinity, and the children, which the surviving party had by his or her marriage with such deceased husband or wife, are dead. (C.205,207 and following; 1558). 207. The duties arising from these provisions are reciprocal. (C. And following). 208. An alimentary allowance is only granted according to the needs of the person who claims it and the means of the person who is liable to pay. (C.209 and following; 1202). 17. It is in evidence that the third defendant got alimony from her husband's employer and there was really no obligation on the part of her parents' family to support her. Claim by her that in lieu of maintenance, she occupied a portion of the property and by virtue of Sec. 14(1) of the Hindu Succession Act her right would get enlarged, is to say the least, erroneous and improper appreciation of the legal position. The lower appellate Court has made a very wrong approach in dismissing the suit holding that the third defendant would be entitled to 5?12 share. Her share if at all, as worked out above, will be 1?8. However, in view of the fact that she is a sharer, her occupation of the property cannot be interfered with. The lower appellate Court has made a very wrong approach in dismissing the suit holding that the third defendant would be entitled to 5?12 share. Her share if at all, as worked out above, will be 1?8. However, in view of the fact that she is a sharer, her occupation of the property cannot be interfered with. The other daughters' branches would each be entitled to % share. The lower appellate Court has failed to draw proper inference from proved facts and to apply law in proper perspective. There has been gross misappreciation of the materials on record. This court is entitled to interfere. Accordingly, the judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored, subject to modification stated above. The Second Appeal will stand allowed. No costs.