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2019 DIGILAW 1019 (MAD)

R. Thangaraju (Died) v. A. Devamurthy

2019-04-09

T.RAVINDRAN

body2019
JUDGMENT : 1. Challenge in this Second Appeal is made to the judgment and decree dated 09.02.2005 passed in A.S.No.54 of 2004 on the file of the District Sessions Court, Fast Track Court, Kallakuruchi, reversing the judgment and decree dated 17.10.2001 passed in O.S.No.137 of 1995 on the file of the Principal District Munsif Court, Kallakuruchi. 2. For the sake of convenience, the parties are referred to as per the rankings in the trial court. 3. Suit for declaration and possession. 4. The case of the plaintiff in brief is that the suit properties originally belonged to Thavayee Ammal, the paternal grandmother of the plaintiff and Thavayee Ammal became entitled to the suit properties on the death of Karupayee ammal/Maintenance holder by the virtue of the judgment and decree passed in O.S.No.330 of 1946 on the file of the District Munsif Court, Kallakurichi. Karupayee ammal had died on 20.12.1994 and Thavayee ammal predeceased Karupayee ammal on 21.06.1975 and on the death of Thavayee ammal, her son Rayapillai became entitled to the suit properties and on the death of Rayapillai on 31.10.1990, his son namely the plaintiff has become entitled to the suit properties. The defendants have no right or title to the suit properties and had fraudulently obtained patta for the items 1 and 2 in the suit properties under the UDR scheme without the knowledge of the plaintiff and his father Rayapillai and the second defendant claimed that he has purchased the items 3 to 5 from Karupayee ammal in the year 1994, however, Karupayee ammal has no right to alienate the suit properties and therefore the second defendant cannot claim any valid title on the basis of the sale alleged to have been made in his favour by Karupayee ammal. The defendants are in the illegal possession and enjoyment of the suit properties and the plaintiff demanded them to surrender the possession of the suit properties. Inasmuch as, the defendants refused to deliver the possession of the suit properties, it is stated that the plaintiff has been necessitated to lay the suit for appropriate relief’s. 5. The defendants are in the illegal possession and enjoyment of the suit properties and the plaintiff demanded them to surrender the possession of the suit properties. Inasmuch as, the defendants refused to deliver the possession of the suit properties, it is stated that the plaintiff has been necessitated to lay the suit for appropriate relief’s. 5. The defendants 1 and 2 have filed separate written statement and both the defendants resisted the plaintiff's case contending that the suit properties do not belong to the plaintiff as put forth in the plaint and also denied that the suit properties belonged to Thavayee ammal, the paternal grandmother of the plaintiff after the demise of Karupayee ammal and it is false to state that Karuapayee ammal derived title to the suit properties based on the decree passed in O.S.No.330 of 1946 on the file of the District Munsif Court, Kallakurichi and on her demise, Thavayee ammal became entitled to the same and on the demise of Thavayee ammal, her son Rayapillai became entitled to the same and after the demise of Rayapillai, the plaintiff became the owner of the suit properties and the same are not admitted and the suit properties and other properties were obtained by Karupayee ammal in lieu of the maintenance as per the decree passed in O.S.No.330 of 1946 on the file of the District Munsif Court, Kallakurichi and Karupayee ammal had enjoyed the above said properties as the owner of the same and died on 19.12.1994 and during her life time, she had bequeathed the suit properties in favour of the first defendant, her brother's son on 04.11.1992 by way of a registered Will and enjoyed the suit properties along with the first defendant till her death and she had alienated the items 3 to 5 of the suit properties to the second defendant by way of a sale deed dated 26.05.1994 for a valid consideration and on her demise, the Will executed by her came into force and as per the terms of the Will, the first defendant is enjoying the properties not covered under the sale deed dated 26.05.1994 as the absolute owner thereof by obtaining patta and by paying Kists and the second defendant is enjoying the properties alienated to him by Karupayee ammal by obtaining patta, paying Kists etc., and therefore the defendants are in the possession and enjoyment of the suit properties as the absolute owners thereof and the plaintiff is not entitled to the same and therefore the claim of the plaintiff that he has title to the suit properties and thereby entitled to recover the possession of the suit properties from the defendants is false and the suit is not maintainable and hence the suit is liable to the dismissed. 6. In support of the plaintiff's case, P.W.1 was examined. Exs.A1 and A2 were marked. On the side of the defendants', D.Ws 1 and 2 were examined. Exs.B1 to B15 were marked. On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial court was pleased to decree the suit in favour of the plaintiff as prayed for. Aggrieved over the same, the defendants preferred the first appeal. The first appellate court on an appreciation of the materials placed on record and the submissions made, was pleased to setaside the judgment and decree of the trial court and by way of allowing the appeal preferred by the defendants dismissed the suit laid by the plaintiff. Impugning the same, the present second appeal has been laid. 7. At the time of admission of the second appeal the following substantial question of law was formulated for consideration. Whether the findings of the lower appellate court in dismissing the suit filed by the appellant without considering the effect of Ex.A2 in the light of Section 14 (2) of the Hindu Succession Act, 1956 are correct in law? 8. The short point that arises for consideration in this second appeal is as regards the nature of the right obtained by Karupayee ammal in respect of the suit properties by virtue of the decree dated 07.11.1947 passed in O.S.No.330 of 1946 on the file of the District Munsif Court, Kallakurichi and the document dated 05.05.1931 executed in favour of Karupayee ammal conveying the suit properties to her in lieu of maintenance for her enjoyment during her lifetime. 9. As per the materials placed on record, it is found that the suit properties and other properties originally belonged to Kumarapillai. Thavayee ammal is the sister of Kumarapillai. Kumarapillai is found to have died even prior to 1930. Kumarapillai had two wives and thorough his first wife, he had one son by name Palanniya pillai. His second wife is Karupayee ammal. As regards the above said relationship between the abovesaid parties, there is no dispute. As could be seen from the compromise decree dated 07.11.1947 passed in O.S.No.330 of 1946 on the file of the District Munsif Court, Kallakurichi, in the above said suit laid by Thavayee ammal against Muthusamy Pillai, S/o Palaniyaa pillai, Karupayee Ammal, W/o,Kumarapillai. As regards the above said relationship between the abovesaid parties, there is no dispute. As could be seen from the compromise decree dated 07.11.1947 passed in O.S.No.330 of 1946 on the file of the District Munsif Court, Kallakurichi, in the above said suit laid by Thavayee ammal against Muthusamy Pillai, S/o Palaniyaa pillai, Karupayee Ammal, W/o,Kumarapillai. Angammal, W/o Pavadai pillai, Thailammal W/o Muthaiya pillai claiming her title to the plaint schedule B and C schedule properties described therein and for recovery of possession thereof from the defendants, it is found that the defendants 2 to 4 above stated, not having contested the suit and remaining exparte, the plaintiff Thavayee ammal and Muthusamy Pillai, S/o Palaniyaa pillai had entered into a compromise with reference to the properties belonging to them and accordingly based on the deed of compromise placed by them for consideration and they having accepted the terms of the compromise as contained in the deed of compromise, the Court having held that the plaintiff has established her claim against the defendants who have been set exparte, accordingly decreed the suit in the abovesaid matter in the terms of the compromise against all the defendants. On a perusal of the compromise decree passed in the abovesaid suit marked as Ex.A1, it is seen that as per the terms of the compromise, the parties had agreed that Karupayee ammal, the second wife of Kumarapillai should be given certain properties in lieu of her maintenance and after her demise, the said properties should come to the plaintiff (Thavayee Ammal) and her son Rayapillai absolutely. The present plaintiff is the grandson of Thavayee ammal who had laid the abovesaid suit in O.S.No.330 of 1946. The present plaintiff is the grandson of Thavayee ammal who had laid the abovesaid suit in O.S.No.330 of 1946. Inasmuch as, Karupayee ammal is admittedly the second wife of Kumarapillai, the suit properties and other properties originally belonged to Kumarapillai as admitted by the plaintiff examined as P.W.1 and the plaintiff having further admitted that recognizing her entitlement to obtain maintenance for her livelihood, the document dated 05.06.1931 had come to be executed in favour of Karupayee ammal, on behalf of Palaniyaa pillai, the son of Kumarapillai, by his guardians namely Muthusamy pillai and Poomalai pillai entrusting or allotting the suit properties in favour of Karupayee ammal in lieu of her maintenance and the abovesaid document marked as Ex.A2 clearly recites that the properties comprised therein namely the suit properties had been entrusted to Karupayee ammal by the abovesaid persons in lieu of her maintenance and accordingly, Karupayee ammal had been granted the right to enjoy the said properties till her life time, however without any power or alienation, by paying Kists etc., to the Government and also entitled to reside in the house property comprised therein and enjoy the same and the document further recites that after the lifetime of Karupayee ammal, the same should go to the heirs of Palalniyappa pillai and accordingly it is found that as admitted by both the parties, a combined reading of the compromise decree marked as Ex.A1 and the maintenance deed executed in favour of Karupayee ammal as above stated, marked as Ex.A2 would go to show without any ambiguity that recognizing her claim of maintenance as the second wife of Kumara pillai, on behalf of the son of Kumara pillai, Ex.A2, maintenance deed had come to be executed in favour of Karupayee ammal entrusting the suit properties to her to be enjoyed by her absolutely by paying Kists etc., during her life time, however without any power or alienation and only on her demise, the properties are directed to be taken by the legal heirs of Palalniyaa Pillai as recited therein. 10. 10. In the light of the above said factual matrix, the plaintiff has laid the present suit putting forth the case that as per the terms of Ex.A1 compromise decree and the maintenance deed marked as Ex.A2, Karupayee ammal had been given only life enjoyment in respect of the suit properties and after her demise, the suit properties are directed to be devolved upon the legal heirs of Palaniyaa Pillai, accordingly it is contended that Thavayee ammal would be entitled to succeed to the properties and inasmuch as, Thavayee ammal had died even before the demise of Karupayee ammal, on the demise of Karupayee ammal, Thavayee ammal's son Raya pillai succeeded to the suit properties and after the death of Raya pillai, his son namely the plaintiff inherited the suit properties and thus it is only the plaintiff who has absolute title over the suit properties and on the other hand, inasmuch as the defendants claim title to the suit properties based on certain documents fraudulently created by them and occupied the suit properties illegally without any authority and refused to hand over the same to the plaintiff, hence according to the plaintiff, he has been necessitated to lay the suit against the defendants for appropriate relief’s. 11. Per contra, according to the defendants, the right given to Karupayee ammal based on Ex.A1 compromise decree and the maintenance deed marked as Ex.A2 is the absolute right and therefore when by way of the above said documents, Karupayee ammal had been given full ownership over the suit properties, she is entitled to convey the same and accordingly it is put forth by the defendants that Karupayee ammal during her life time had bequeathed the suit properties in favour of the first defendant, her brother's son by way of a Will dated 04.11.1992 marked as Ex.B1 and thereafter she had also alienated the items 3 to 5 of the plaint schedule properties in favour of the second defendant by way of the sale deed dated 26.05.1994 marked as Ex.B15 and therefore according to the defendants by virtue of the above said conveyances executed by Karupayee ammal, the first defendant became entitled to the items 1 and 2 of the suit properties on the demise of Karuapayee ammal, by virtue of Ex.B1 Will and the second defendant became entitled to the items 3 to 5 of the plaint schedule properties by virture of the sale deed marked as Ex.B15 and accordingly enjoying the same as the absolute owners thereof and therefore the plaintiff is not entitled to putforth any claim of title to the suit properties and hence not entitled to seek the recovery of the same from the defendants and thereby contended that the suit laid by the plaintiff is without any basis, liable to be dismissed. 12. As above pointed out, Karupayee Ammal is the second wife of Kumarapillai. Therefore Kumara pillai as the husband of Karupayee ammal, has a duty to maintain her i.e., the same is his personal obligation. However, it is found that he had predeceased Karupayee ammal. Kumara Pillai owned various properties including the suit properties. 12. As above pointed out, Karupayee Ammal is the second wife of Kumarapillai. Therefore Kumara pillai as the husband of Karupayee ammal, has a duty to maintain her i.e., the same is his personal obligation. However, it is found that he had predeceased Karupayee ammal. Kumara Pillai owned various properties including the suit properties. Accordingly, it is seen that when the Hindu woman's right to maintenance is a personal obligation of the husband and it is his duty to maintain her, even if he has no property and as for as the present case is concerned, when Kumarapillai had various properties, acccordingly it is found that the right of Karupayee ammal to maintenance becomes an equitable charge on the properties belonging to Kumara pillai and in such view of the matter, any person who succeeds to the properties of Kumarapillai, carry with it the legal obligation to maintain Karupayee ammal, the widow. Accordingly, it is seen that the right of Karupayee ammal to maintenance, is a pre existing right, and the same is to be safeguarded by the husband and also in the absence of the husband, on his death, the legal heirs who succeed to the properties of the husband and when the right of maintenance to be granted to a widow being a pre existing right which existed in the Hindu law prior to the passing of Act of 1937 or the Act of 1946 and the same being a pre existing right, in such view of the matter, realising the above said position and the entitlement of Karupayee ammal to seek the right to maintenance, even as against the properties belonging to her husband, accepting the above position of law, while the parties entered into a compromise in O.S.No.330 of 1946 on the file of the District Munsif Court, Kallakurichi, accepting the same, had also agreed to provide maintenance to Karupayee ammal by allotting certain properties to her, however also stated that the same would devolve upon the legal heirs of Palaniyaa pillai, S/o, Kumara pillai on the demise of Karuapayee ammal. The said view has also given effect to by the parties concerned and accordingly on behalf of Palaniya pillai, S/o, Kumara pillai the maintenance deed Ex.A2 had already been executed in favour of Karupayee ammal giving the properties comprised therein, in lieu of her maintenance right to be enjoyed by her absolutely by paying Kists etc., till her lifetime, however without any power or alienation and no doubt the abovesaid document also recites that after the life time of Karupayee ammal, the properties comprised therein would devolve upon the legal heirs of Palaniya pillai. In such view of the matter, it has to be seen whether the limited right granted to Karupayee ammal under Ex.A1 compromise decree read in conjunction with the maintenance deed Ex.A2, considering the import of section 14(1) of the Hindu Succession Act 1956, it is found that the property held by a female Hindu, in lieu of her maintenance claim, would be covered under section 14(1) of the above said Act and thereby when the properties given to Karupayee ammal both by way of Exs.A1 and A2 read together, in all, it is found that when admittedly, Karupayee ammal had been enjoying the said properties i.e., the suit properties during her life time and till her demise, in the light of the provisions contained in section 14(1) of the Hindu Succession Act, 1956, the limited right she had with reference to the suit properties after the advent of the Hindu Succession Act 1956, shall be held by her as the full owner thereof and not as the limited owner. Section 14 of the Hindu Succession Act 1956, reads as follows: 14. Property of a female Hindu to be her absolute property. (1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Section 14 of the Hindu Succession Act 1956, reads as follows: 14. Property of a female Hindu to be her absolute property. (1)Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation: In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after the marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property. 13. 13. When the essential conditions set out under section 14(1) of Hindu Succession Act, 1956 had been satisfied in the present case, i.e., Karupayee ammal had been given the suit properties in lieu of her maintenance right and she had been given only a limited right to enjoy the suit properties during her lifetime and the said properties had been enjoyed by Karupayee ammal till her demise, in such view of the matter, the ingredients of section 14(1) of the Hindu Succession Act 1956 being fully satisfied to the facts and circumstances of the present case, in such view of the matter, the first appellate court is found to be fully justified in holding that the limited right granted to Karupayee ammal as abovestated had blossomed into an absolute right as per the provisions contained in section 14(1) of the Hindu Succession Act 1956 and in such view of the matter, the plaintiff cannot be allowed to claim right to the suit properties on the footing that Karupayee ammal had been given only a limited right and therefore she is not entitled to transfer the suit property in favour of third parties in any manner and hence the plaintiff should be declared as the owner of the suit property. However with the advent of Hindu Succession Act, 1956, the limited right granted to Karupayee ammal having blossomed into absolute right, there is no question of the plaintiff seeking to assert his title to the suit properties on the footing that Karupayee ammall had been given only a limited right in respect of the suit properties without any power of alienation. 14. In the decision reported in 1997 (9) SCC 613 [Ram Kali Vs. Choudhri Ajith Shankar and others] and following the decision of the Apex Court reported in 1977 (3) SCC 99 [ V.Tulasamma Vs. 14. In the decision reported in 1997 (9) SCC 613 [Ram Kali Vs. Choudhri Ajith Shankar and others] and following the decision of the Apex Court reported in 1977 (3) SCC 99 [ V.Tulasamma Vs. Sesha Reddy], the Apex Court has held that the property given to a widow in recognition of pre-existing right to maintenance, by way of a limited estate, would enlarge into a absolute estate with the advent of section 14(1) of the Hindu Succession Act, 1956 and the reversioner namely the plaintiff would not be entitled to claim right to the suit properties on the footing that Karupayee ammal had been provided only limited right without any power or alienation and consequently, it is seen that limited right given to Karupayee ammal would enlarge into an absolute right and merely because by way of Exs.A1 and A2, Karupayee ammal had been given limited right to the properties without any power or alienation that would not in any manner hinder her right to acquire the full ownership to the same by virtue of section 14(1) of the Hindu Succession Act, 1956, as held in the above said decision. It is found that a liberal approach should be made while construing section 14(1) of the Hindu Succession Act, 1956 keeping in mind the object of the above said Act and therefore we should accept and agree with the determination of the first appellate court in holding that the limited right granted to Karuapayee ammal by way of Exs.A1 and A2 had blossomed into an absolute right under section 14(1) of the Hindu Succession Act, 1956. 15. The plaintiff's counsel contended that by way of Exs.A1 and A2, Karupayee ammal had been granted independent right of maintenance for the first time and in such view of the matter, according to him, section 14(1) of the Hindu Succession Act would not apply and on the other hand section 14(2) of the above said Act would apply and in this connection, he placed reliance upon the decision reported in 2019 (1) MWN (Civil) 301 [Rukmani Ammal Vs. Govindaraj and others] and 2013 (2) CTC 587 [Shivdev Kaur (D) By Lrs & Others Vs. R.S.Grewal]. However, the above said decisions would not apply to the facts and circumstances of the case at hand. In the decision reported in 2019 (1) MWN (Civil) 301 [Rukmani Ammal Vs. Govindaraj and others] and 2013 (2) CTC 587 [Shivdev Kaur (D) By Lrs & Others Vs. R.S.Grewal]. However, the above said decisions would not apply to the facts and circumstances of the case at hand. In the decision reported in 2019 (1) MWN (Civil) 301 [Rukmani Ammal Vs. Govindaraj and others], it is found that the limited right given to the widow is found to be made by the settlor in respect of the suit properties covered in the said case, on the insistence of the parents of the settlee that he should settle certain properties in favour of the settlee as a pre-condition for marrying her and on that scenario, as it is found that the settlement deed had come to be executed by the setttlor in favour of the settlee creating the limited right in respect of the suit properties covered there under, in such view of the matter, in the above said decision, it has been held that the as the above said settlement deed had not been executed in recognition of the pre existing right of the settlee and on the other hand, the settlement deed had been executed only as per the insistence of the parents of the settlee and thereby granted the right to the settlee under the said document for the first time and in such view of the matter, in the above said decision, it has been held that the limited right granted to the settlee under the settlement deed would not enlarge into an absolute estate by relying upon section 14 (2) of the Hindu Succession Act, 1956 as well as following the decision reported in 2013 (2) CTC 587 [Shivdev Kaur (D) by LRs and Others Vs. R.S.Grewal. Even in the case covered under the decision reported in 2013 (2) CTC 587 , inasmuch as, the limited right granted therein had been made for the first time under the Will, in the said decision, it has been held that the limited right granted thereby would not stand crystallized into an absolute right and therefore, section 14 (1) of the Hindu Succession Act, 1956 would not apply and only section 14 (2) of the Hindu Succession Act, 1956 would apply. 16. 16. However, insofar as the present case is concerned, as above noted, when Karupayee ammal had been given the suit properties in recognition of her pre-existing right of maintenance and when she is entitled to enforce the said claim as against the properties of her husband and accepting the said position, she had been conveyed the maintenance deed Ex.A2 r/w the compromise decree marked as Ex.A1, in such view of the matter, when the above said transaction would not fall under section 14(2) of the Hindu Succession Act, 1956 and on the other hand, would squarely would fall under section 14(1) of the Hindu Succession Act, 1956, in such view of the matter, as rightly put forth by the defendants' counsel, the above said decisions relied upon by the plaintiff's counsel, would not be applicable to the case at hand. 17. 17. Inasmuch as, the limited right granted to Karupayee ammal had blossomed into absolute right, it is found that she would be entitled to covey the said properties and accordingly it is found that Karupayee ammal had bequeathed the suit properties in favour of the first defendant by way of Ex.B1 Will and thereafter alienated the items 3 to 5 of the suit properties in favour of the second defendant by way of the sale deed marked as Ex.B15 and when evidence has been adduced on the part of the defendants regarding the truth and validity of Ex.B1 Will by D.W.2, the attestor and when the evidence of the attestor satisfied all the requirements of law and not shown to be unacceptable or untrustworthy, in such view of the matter, it is found that when Karupayee ammal had the entitlement as per law to convey the suit properties by way of Exs.B1 and B15 on the strength of Exs.A1 and A2, in all, it is found that as rightly determined by the first appellate court, it is found that the plaintiff could not be allowed to claim the title to the suit properties on the footing that only a limited right had been granted to Karupayee ammal whereas, as per the march of law, as above discussed, the limited right granted to Karupayee ammal had enlarged into the absolute right and in such view of the matter, the plaintiff is not entitled to obtain the reliefs sought for and the first appellate court is found to be justified and correct in setting aside the judgment and decree of the trial court and dismissing the plaintiff's suit and therefore no interference is called for to the judgment and decree of the first appellate court in any manner. 18. The substantial question of law formulated in the second appeal is answered against the plaintiff and in favour of the defendants. 19. In conclusion, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.