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2016 DIGILAW 4008 (MAD)

Thirunavukkarasu v. Rajavel

2016-11-23

G.JAYACHANDRAN

body2016
JUDGMENT : G. Jayachandran, J. The long journey of this litigation instituted in the year 1982 by the plaintiff as indigent is capsulised and narrated below :- 2. The suit properties belong to one Narayanasami Mudaliar. He died leaving his wife, son and two daughters. Kadirvelu Mudaliar, who is the son of Narayanasami Mudaliar later, died issueless leaving behind his wife Thailammal. On 9.12.1949, a partition was effected between Manikammal w/o deceased Narayanasami and her daughter-in-law Thailammal w/o Kadirvelu. As per the terms of the partition deed, marked as Ex A-1, the Plaint 'A' schedule properties were taken by Manikammal and 'B' schedule properties were taken by Thailammal and 'C' schedule properties were earmarked to a charity for conducting "Naalvar Poojai" at Kurnchipadikuppam Shri Kumbaeswarar Temple and the same was entrusted to one Adhanamozhi Mudaliar who was none other than the brother's son of Late. Naryananasami Mudaliar. Adhanamozhi Mudaliar was also, at that time, the Dharmakartha of 'Naalvar Thirunatchatra Annadhanam'. The partition deed reads that after the demise of Manickammal and Thailammal, 'A' and 'B' schedule properties shall go to Adhanamozhi Mudaliar. He shall conduct the 'Thiruvillaku poojai' and 'Shivarathi poojai' of Shri Kumbaeshwara Temple at Kurnichipadikuppam Village. After his life time, his heirs has to continue the charity out of the income from that properties. 3. The properties entrusted to Adhanamozhi Mudaliar and his heirs with an obligation to perform the specified poojas and to run the charity, is the subject matter of the dispute. Adhanamozhi Mudaliar is said to have been died issueless in the year 1975. The plaintiff claiming himself as the nearest heir of Adhanamozhi Mudaliar, filed the suit for recovery of possession and mense profit from the defendant. According to the plaintiff, the defendant who is also related to Adhanamozhi Mudaliar came into possession of the suit property, few years before Adhanamozhi Mudaliar died. He was assisting Adhanamozhi Mudaliar, in doing poojas to the Temple. Between the Plaintiff and the defendant, the plaintiff is the nearest relation to Adhanamozhi Mudaliar and hence, the plaintiff is entitle for the suit properties. 4. Admitting the case of the plaintiff regarding the relationship and the partition deed Ex A-1, the defendant contested the suit on the ground that, the heir referred in the partition deed dated 09.12.1949 marked as EX.A-1 refers to male descendants only. 4. Admitting the case of the plaintiff regarding the relationship and the partition deed Ex A-1, the defendant contested the suit on the ground that, the heir referred in the partition deed dated 09.12.1949 marked as EX.A-1 refers to male descendants only. During the year 1950 Adanamozhi Mudaliar was unable to perform the poojas and to run the charity, so he entrusted the properties to Manikasami. Till his life time, Manikasami and thereafer, the defendant who is the son of Manikasami is in possession of the properties and carrying on the charity work. 5. In respect of other two items of the suit schedule properties, the defendant pleaded that they are, his self acquired properties. Further, he sought for dismissal of the suit for recovery of possession, on the ground that the properties are trust properties. Without seeking a declaration against the office of trusteeship, the relief sought for by the plaintiff in the suit is not maintainable. 6. Based on the above pleadings, the trial Court framed the following issues :- "(1) Whether the plaintiff is entitled for recovery of possession ? (2) Whether the plaintiff is the descendant of the trustee Adhanamohzi Mudaliar ? (3) Whether the suit is maintainable ? (4) Whether the suit is barred by limitation ? (5) Whether the trial court has jurisdiction to entertain the suit ? (6) What relief the plaintiff is entitle for ?" 7. The trial Court examined the plaintiff as PW-1 and Defendant as DW-1. Apart from the parties to the suit, the paternal uncle of the Defendant one Palaniandi was examined on behalf of the defendant as DW-2. Three exhibits were marked as Exs.A-1 to A-3. They are the partition deed dated 9.12.1949, Lawyer's notice to the defendant dated 21.9.1975 and the reply notice to the plaintiff dated 7.10.1975 respectively. 8. Based on these evidence, the trial Court upholding the defendant's plea that even during the life time of Adhanamohzi Mudaliar, the defendant and his father were in possession of the suit properties and carrying on the charity work as mentioned in Ex.A-1, dismissed the suit. The trial Court observed that, Thailammal, who is one of the executant of Ex.A-1 was alive at the time of filing the suit. But, she had no complaint of non-performance of charity work by the defendant. The trial Court observed that, Thailammal, who is one of the executant of Ex.A-1 was alive at the time of filing the suit. But, she had no complaint of non-performance of charity work by the defendant. In the absence of independant witness to support the claim of the plaintiff that charity work not done, as ordained in the partition deed, such a plea is held to be not proved. 9. Regarding the proximity of relationship of the defendant with Adhanamohzi Mudaliar, the trial Court held that in Ex A-1, it is mentioned that after Adhanamohzi Mudaliar his decendants should take the property and continue the charity. There was no heir apparent to Adhanamohzi Mudaliar, who died issueless. When the executant of the document was very much alive even after Adhanamohzi Mudaliar's life time and admittedly, the properties were in possession and management of the defendant's father and thereafter, with the defendant ever since 1950, if it was contrary to the intention of the executant Thaialammal, the plaintiff should have enquired her to clarify her intention of whom she meant by 'decendants of Adhanamohzi Mudaliar'. After tracing the genealogy of the rival parties, the trial Court has concluded that both are decendants of Adhanamohzi Mudaliar. Having admitted that the defendant is in possession of the property as Trustee, the plaintiff ought to have sought a declaratory relief, to declare him as the Trustee of the plaint schedule mentioned properties as per Ex A-1. In the absence of such prayer, the relief of recovery of possession cannot be granted. 10. On appeal by the plaintiff, the First Appellate Court, framed the following points for consideration :- "(1) Whether the plaintiff is entitle for possession of plaint property ? (2) Whether the plaintiff is entitle for mense profit ? (3) Whether the suit is valued properly ? (4) Whether the suit is barred by limitation ? (5) Whether the suit is maintainable ? (6) What other relief the plaintiff is entitle for ? 11. Confirming the trial Court decree, the First Appellate Court also held that the suit is barred by limitation and also dismissed the appeal. 12. The aggrieved plaintiff has preferred the present Second Appeal before this court. (5) Whether the suit is maintainable ? (6) What other relief the plaintiff is entitle for ? 11. Confirming the trial Court decree, the First Appellate Court also held that the suit is barred by limitation and also dismissed the appeal. 12. The aggrieved plaintiff has preferred the present Second Appeal before this court. While admitting the Second Appeal, this Court formulated the following sole substantial question of law :- "Whether the lower appellate court was right in holding that the suit was barred by limitation contrary to provisions of section 10 of Limitation Act ? " 13. The Learned Judge who heard the Second Appeal has reversed the findings of the Courts below and allowed the Second Appeal. The reasons stated in that judgment for allowing the Second Appeal are extracted below :- "16. Courts below have not approached the question on the above lines. Before the Courts below, the approach was that it is a trust property and the claim of the plaintiff was taken as one by a Trustee and that approach of the Courts below is not correct. There can be any question of dismissal of the suit as is done. 17. The finding that the suit is barred by limitation has to be set aside. Both on the question of right to recover the property and also as a relation of the original owner, namely, on the view that he is more closely relted to the deceased Adhanamozhi Mudaliar, plaintiff is entitled to succeed. 18. In the result, the Second Appeal is allowed. There will be a decree as prayed for, permitting the plaintiff to recover possession of the property from the defendant. The question of profits will be decided in execution proceedings under Order 20, Rule 12 C.P.C. There will be no order as to costs." 14. The defendant took up the matter to the Apex Court in Civil Appeal No. 3399/2000. The Hon'ble Supreme Court after going through the pleadings and findings of the Courts below including this Court, held that, " In our view, the High court had not framed proper substantial question of law, while deciding the Second Appeal. It is true that the issue relating to limitation was involved but the other substantial questions of law, which were required to be framed by the High Court, were not framed. It is true that the issue relating to limitation was involved but the other substantial questions of law, which were required to be framed by the High Court, were not framed. We are, therefore, of the opinion that, as noted herein above, the second appeal should be sent back to the High Court for a fresh decision after framing the substantial questions of law and thereafter it should decide the appeal afresh on the questions framed thereof. Accordingly, the following substantial questions of law are hereby formulated by us: "1. Whether the suit filed by the plaintiff merely seeking relief of possession of trust property without claiming the relief of declaration of trusteeship was maintainable ? 2. Whether the claim of the plaintiff to trusteeship on the ground of propinquity with the deceased trustee is contrary to the rules of succession under law, accordingly priority to an agnate as against a cognate and the defendant as agnate is a nearer relative of the deceased trustee ? 3. Whether the defendant would be an "heir" of the deceased trustee, for the purposes of the partition deed making the dedication and hence entitled to continue as a trustee to the exclusion of all others? 4. Whether at any rate, the right of hereditary trusteeship devolves upon the defendant by reason of his recognition as such by the deceased trustee and/or on account of de facto/constructive trusteeship exercised for a long period ?" 15. In the above said back ground, the appeal was heard again on remand. The learned Senior Counsel appearing for the appellant submitted that, the genealogy tree clearly shows that the plaintiff and defendant are from different branches of the original owner of the plaint properties, Narayanasami Mudaliar. It is admitted fact that Adanamohzi Mudaliar died issueless. In Ex.A-1 the 'C' schedule properties are not dedicated to Temple. The ownership is retained by it executants namely Manickammal and Thailammal. Only the duty to carry out the charity work and to do poojas, from the income of 'C' schedule properties, the property was entrusted to Adhanamozhi Mudaliar and his decendants. Since, the ownership is with Manickammal and Thailammal and the right of Adhanamozhi Mudaliar was only to perform charity work, out of the income, the property should devolve according to the law of succession. 16. The common ancester is one Alakappa Mudaliar. Since, the ownership is with Manickammal and Thailammal and the right of Adhanamozhi Mudaliar was only to perform charity work, out of the income, the property should devolve according to the law of succession. 16. The common ancester is one Alakappa Mudaliar. He had two sons by name Ramasami Mudaliar and Muruga Mudaliar. Muruga Mudaliar had two sons namely Veerappa Mudaliar and Narayanasami Mudaliar. Veerappa Mudaliar had a son by name Adanamohzi Mudaliar. Narayanasami Mudaliar had one son by name Kadirvelu Mudaliar and two daughters by name Unnamalai and Dhanabakkiam. The plaintiff is son of Dhanabakkiam. The said Dhanabakkiam's mother is Manikkammal. Thailammal is wife of Kadirvelu Mudaliar. Thus, the plaintiff is daughter's son of Narayanasami Mudaliar (the original owner of the suit properties). For Adhanamozhi Mudaliar, Narayanasami Mudaliar is his father's brother that is, paternal Uncle. Thus, Adanamohzi Mudaliar and the plaintiff are the decendants of Muruga Mudaliar, so, they both come under one branch. Whereas, the defendant is the great grand son of Ramasami Mudaliar, which is entirely a different branch. Therefore, being nearer in relationship with Adanamohzi Mudaliar, the plaintiff has right over the property. Having better title than the defendant, suit for recovery of possession without declaratory relief is maintainable. Question of law No: 1 "Whether the lower appellate court was right in holding that the suit was barred by limitation contrary to provisions of section 10 of Limitation Act ? " 17. Regarding the point on limitation, the learned Senior Counsel for the appellant contented that, as per Ex.A-1, Adanamohzi Mudaliar was entitled to be in possession of the property during his life time. The defendant was put into possession of the property by Adanamohzi Mudaliar as permissive occupant with an obligation to continue the pooja and charity. Even after the death of Adanamohzi Mudaliar, the possession of the defendant is only on the basis of entrustment. The defendant's possession is only permissive and not adverse, therefore, the plaintiff being the legal heir of Adhanamozhi Mudliar, can any time claim recovery of possession. 18. Very strangely, though both the parties claim their right through Adanamohzi Mudaliar as his decendants, none of them have furnished particulars about the date on which Adanamohzi Mudaliar died. Neither in the pre-suit notice; nor in the reply notice; nor in the plaint; nor in the written statement, this Court is able to find the exact date of Adanamohzi Mudaliar's death. Neither in the pre-suit notice; nor in the reply notice; nor in the plaint; nor in the written statement, this Court is able to find the exact date of Adanamohzi Mudaliar's death. Even assuming that the defendant was in possession of the suit properties during the life time of Adanamohzi Mudaliar, it could be only a permissive occupation. Only on the death of Adanamohzi Mudaliar, the question of title and possession gets open. Therefore, when there is no evidence to show when the limitation commenced, the plaintiff cannot be de-suited on the ground that the suit is barred by limitation. The trial Court finding in this regard is correct. Whereas, the First Appellate Court had gone wrong on this point. 19. Additional substantial question of law formulated by the Supreme Court: 1. Whether the suit filed by the plaintiff merely seeking relief of possession of trust property without claiming the relief of declaration of trusteeship was maintainable ? 20. The learned Senior Counsel for the appellant, submitted that, as far as the title over the suit properties is concerned, there can be no dispute. The plaintiff is the nearer decendant of both Adanamohzi Mudaliar as well Narayanasami Mudaliar, the original owner of the plaint schedule properties. Hence, he has better title over the plaint properties than the defendant. Whereas, the defendant who born in the different branch has no title over the property. Therefore, the suit for recovery of possession is maintainable without a prayer for declaration. 21. In support of his submission, the learned Senior Counsel appearing for the appellant relied upon the following judgments of this court. "(1) S.K. Balaguru Pandian v. S.K. Murugesa Nadar and others 2010 (6) CTC 279; (2) V.N. Krishnasamy and others v. E.S. Vasudevan and (3) Jayanthi and others v. Dr. K. Selvaraj and others 2014 (4) CTC 618 ." 22. Going through the facts of the cases cited above, it all arising out of bare injunction suits. The Courts have held that when the issue of title is clear, simple and straight forward deciding the same in a suit for injunction is permissible. Further, it is said that, the plaintiff who having a clear title and possession, suing for injunction, should not be driven to costlier and more cumbersome remedy of suit for declaration. 23. The Courts have held that when the issue of title is clear, simple and straight forward deciding the same in a suit for injunction is permissible. Further, it is said that, the plaintiff who having a clear title and possession, suing for injunction, should not be driven to costlier and more cumbersome remedy of suit for declaration. 23. In all the above cases cited, the leading judgment of the Hon'ble Supreme Court in Ananthula Sudhakar v. Buchi Reddy and others 2008 (6) CTC 237 has been invariably referred. The cases cited by the Learned Counsel are all decided based on the parameters laid down by the Hon'ble Supreme Court in the Ananthula Sudhakar case (cited supra). In paragraph No.17 of the said judgment, summarising the position in respect of suits for prohibitory injunction relating to immovable property, the Apex Court has held as follows :- "Where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter." 24. The case in hand is for recovery of possession and the consequential relief. Thus, admittedly possession is not with the plaintiff. The title claimed is also not clear and simple or straight forward. In one hand, plaintiff claims right through inheritance and on the other hand, he claims right as worshipper. His pleading and evidence is not even consistent about the nature of the property whether it is the property of the individual attached with charitable obligation or a Trust property exclusive for charitable obligation. Therefore, in such circumstances, the first part of the parameter namely, "where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without consequential injunction, is the remedy", applies. Therefore, it goes without saying, that the plaintiff ought to have filed the suit for declaration and possession. 25. Therefore, in such circumstances, the first part of the parameter namely, "where a cloud is raised over plaintiff's title and he does not have possession, a suit for declaration and possession, with or without consequential injunction, is the remedy", applies. Therefore, it goes without saying, that the plaintiff ought to have filed the suit for declaration and possession. 25. Looked at any angle, whether the plaintiff wants the property as decendant of Adanamohzi Mudaliar or the Trusteeship along with the property as a worshipper, he should have first sought declaratory relief and then the relief of possession. Since, he had no definite title over the property, when the title is under cloud and admittedly plaintiff is not in possession, without a prayer for positive declaration of his status, the recovery of possession in isolation could not be granted. "(2) Whether the claim of the plaintiff to trusteeship on the ground of propinquity with the deceased trustee is contrary to the rules of succession under law, accordingly priority to an agnate as against a cognate and the defendant as agnate is a nearer relative of the deceased trustee ? And (3) Whether the defendant would be an "heir" of the deceased trustee, for the purposes of the partition deed making the dedication and hence entitled to continue as a trustee to the exclusion of all others ?" 26. Referring the commentaries on "Hindu Law" by Mulla, in respect of the parties propinquity with the deceased trustee and prioritization between the Agnate and the Cognate, the learned Senior Counsel for the appellant submitted that, admittedly the plaintiff and defendant are persons of common descent but, through different branch. Hence, being collaterals, recokoning the plaintiff's relationship from the intestate (Adanamohzi Mudaliar), the plaintiff being Adanamohzi Mudaliar's father's brother's grand son, he is nearer in decree compared to the defendant, who is Adanamohzi Mudaliar's grand father's brother's grand son. 27. To understand the decree of relationship and its relevance, in Hindu Law of inheritence, it is necessary to read Sections 8, 12 and 13 of Hindu Succession Act together. These provisions were drafted into the Act taking into consideration of the concept of Gothraja sapindas and Bhinna gotra sapindas or otherwise known as Bandhus followed under Mitakshara School of law where right to inherit arises from propinquity. 28. These provisions were drafted into the Act taking into consideration of the concept of Gothraja sapindas and Bhinna gotra sapindas or otherwise known as Bandhus followed under Mitakshara School of law where right to inherit arises from propinquity. 28. Section 8 of the Hindu Successions Act, 1956 groups the heirs of a male intestate into four categories. Firstly, upon the heirs specified in class I. All the 12 heirs enumerated in this list will get equal share simultaneously. On failure of any such heir specified in Class I, the property develoves upon the enumerated heirs specified in Class II, an heir in the first entry in class II being preferred to one in the second entry and so on in succession. If there is no heir belonging to Class I or even Class II, the property devolves upon the agnates of the deceased. A person is said to be an 'agnate' of another if the two are related by blood or adoption wholly through males. Lastly, if there is no agnate of the deceased in existence at the time of his death the property devolves upon his cognates. A person is said to be a 'cognate' of another if the two are related by blood or adoption but not wholly through males. 29. The succession among agnates and cognates is dealt under section 12 and 13 of the Hindu Succession Act. While section 12 deals with order of succession among agnates and cognates, under rules of this section preference is given to one who is fewer in decree. As per Section 13, for computation of decree, the relationship shall be reckoned from the intestate to the heirs. 30. Thus, the Hindu Succession Act has very clearly prioritized the heirs for succession of the four groups of heirs. While enumerating the relations in Class I and Class II, for the 3rd and 4th group of heirs namely agnates and cognates, no list of relations provided. In the light of the above provisions of law, if we look into the facts of the case, we find that admittedly, the defendant is related to Adanamohzi Mudaliar wholly through male heirs both by ascent and decent. Whereas the plaintiff trace his relationship to Adanamohzi Mudaliar through his mother Dhanabakkiam. Thus, while defendant is an 'agnate' to the intestate Adanamohzi Mudaliar, the plaintiff is a 'cognate' to him. No doubt decree-wise the plaintiff is closer. Whereas the plaintiff trace his relationship to Adanamohzi Mudaliar through his mother Dhanabakkiam. Thus, while defendant is an 'agnate' to the intestate Adanamohzi Mudaliar, the plaintiff is a 'cognate' to him. No doubt decree-wise the plaintiff is closer. However, under section 8 of Hindu Succession Act, only if no agnates exist, cognates will get property. Thus, agnate excludes cognate. Therefore, the defendant being the agnate though farer in decree, he is the heir of the deceased trustee. (4) Whether at any rate, the right of hereditory trusteeship devolves upon the defendant by reason of his recognition as such by the deceased trustee and/or on account of de facto/constructive trusteeship exercised for a long period ? 31. This question of law has become superfluous in view of the conclusion arrived at in respect of the previous two substantial questions of law. Since, the Hon'ble Supreme Court having formulated this question as one of the substantial questions of law, with reverence to the Apex Court, this court gives its finding as below:- (i) The recital of Ex A-1 clearly indicates the intention of its authors. The properties were divided under schedules 'A', 'B' and 'C' certain charities are attached to all the properties. While 'C 'schedule property been given to Adanamohzi Mudaliar in presenti with an obligation to perform the "Naalvar Guru pooja" every year. The 'A' and 'B' schedule properties are to be devolved upon Adanamohzi Mudaliar after the life time of the authors with the obligation to perform "Thiruvillaku" and "Sivarathiri pooja" at Shri Kumbaeswara swami temple. As per Ex A-1 The decendants of Adanamohzi Mudaliar are supposed to discharge the charitable obligations mentioned in the deed Ex A-1 from the income out of those properties. In Ex A-2 notice, the plaintiff Admits that the possession of the properties are with the defendant. The allegation made against the defendant that he is not carrying out the charities found to be baseless and not proved. (ii) It is an admitted fact that even during the life time of Adanamohzi Mudaliar, the possession of the plaint properties were with the father of the defendant. The allegation made against the defendant that he is not carrying out the charities found to be baseless and not proved. (ii) It is an admitted fact that even during the life time of Adanamohzi Mudaliar, the possession of the plaint properties were with the father of the defendant. While so, the plaintiff plea of recovery of possession on the ground that plaint properties are trust property endowed for charity alone not seems to be correct because in the recital of Ex A-1 say, Adanamohzi Mudaliar shall get the property and carry out the charity from the income out of it. Therefore it should be construed that the property was given to Adanamohzi Mudaliar absolutely with a obligations to carry out the charities mentioned and after the life time of Adanamohzi Mudaliar, it is his decendants to inherit the properties and carry out the charity. In fact, it is proved through evidence that even before Adanamohzi Mudaliar demise, the property has gone to the possession of the defendant and his father. (Emphasis applied) (iii) The trial court has held that Adanamohzi Mudaliar died in the year 1975. Suit notice Ex A-2 is issued on 21.09.1975. The plaintiff has filed the suit as indegient on 15.2.1982. In Ex A-2, pre-suit notice, the plaintiff has said that, 'in the year 1949 through Ex A-1 Adanamohzi Mudaliar was entrusted with the obligation of carrying on the charity. According to the deed he was carrying on all the work. While he was doing the work he put a helper (mastry). After six months Adanamohzi Mudaliar died'. 32. Thus, from the reading of Ex A-2, it is found that the defendant's possession and his involvement in the charity is accepted by the plaintiff. The defendant in his reply notice had stated that even during the life time of Adanamohzi Mudaliar his father Manikasami Mudaliar was in possession of the property and carrying on the charities as per the instruction of Thailammal and consent of Adanamohzi Mudaliar. (Emphasis applied) 33. Thailammal who created the trust of the property which she got under the partition deed Ex A-1, was alive at the time of filing the suit. She was neither made a party or examined to disprove the above categorical claim of the defendant made in his reply. (Emphasis applied) 33. Thailammal who created the trust of the property which she got under the partition deed Ex A-1, was alive at the time of filing the suit. She was neither made a party or examined to disprove the above categorical claim of the defendant made in his reply. Since, the plaintiff has failed to disprove the ascertion of the defendant made in his notice, the said ascertion ought to be taken as proved. The non participation of Thailammal in the litigation, impliedly shows that she has recognised the defendant as the defacto trustee even during the life time of the dejury trustee Adanamohzi Mudaliar. 34. For the aforesaid reasons, except on the point of limitation, all the other substantial questions of law are held against the plaintiff. Accordingly, the judgment of the First Appellate Court and the decree passed by the trial Court are hereby confirmed. 35. In the result, the Second Appeal is dismissed. No order as to costs.