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2019 DIGILAW 589 (MAD)

Nagaiyasamy v. Thangam

2019-03-04

R.HEMALATHA

body2019
JUDGMENT : R. Hemalatha, J. 1. The unsuccessful Plaintiff before both the Courts below has filed the present Appeal. 2. For the sake of convenience, the parties are referred to as per the ranking in the Trial Court and at appropriate places their ranking in the Second Appeal will also be indicated if necessary. 3. The brief facts of the Appellant/Plaintiff is as follows: 3(i). The Suit property originally belonged to the Plaintiff's father, who died intestate on 19.10.1996 and the Plaintiff became entitled to the Suit property. He has also been paying tax for the Suit property. The First Defendant was a Tenant in the Suit property in the Ground Floor portion on a Monthly Rental basis. The tenancy was oral. Though the Plaintiff requested the First Defendant to vacate the Suit premises, the First Defendant did not vacate the same, but promised to pay Rs. 200 per mensem. Since the First Defendant did not keep up his promise, the Plaintiff issued a Notice to him and the First Defendant, in spite of receipt of the said Notice, did not come forward to the pay arrears of Rent or vacate the Suit premises. Therefore, the Plaintiff issued another Legal Notice dated 6.3.1998, (a copy of receipt is marked as Ex. A10), demanding the First Defendant to pay arrears of Rent and also to vacate the Suit premises. The First Defendant received the said Notice and sent a Reply dated 23.3.1998 (Ex. A11), which according to the Plaintiff contained false allegations. In the Reply Notice, the First Defendant denied the relationship of Landlord Tenant between the Plaintiff and the First Defendant and in fact set up a title in favour of the Second Defendant. The specific contention of the Defendants is that the Second Defendant purchased the Suit property from the Plaintiff's father in the year 1993. 4. Therefore, the Plaintiff filed a Suit for declaration of his title to the Suit property and also directing the Defendants to vacate and hand over the Suit property to the Plaintiff and for Costs. 5. The specific contention of the Defendants is that the Second Defendant purchased the Suit property from the Plaintiff's father in the year 1993. 4. Therefore, the Plaintiff filed a Suit for declaration of his title to the Suit property and also directing the Defendants to vacate and hand over the Suit property to the Plaintiff and for Costs. 5. The Suit was resisted by the Defendants on the following grounds: (a) The Suit property though originally belonged to the father of the Plaintiff, the Defendants were in possession of the Suit property as a Mortgagee (Usufructuary Mortgage) (b) On 16.11.1993, the father of the Plaintiff alienated the Suit property in favour of the Second Defendant through an Oral Sale and possession was also handed over to the Defendants. (c) Since the Plaintiff converted himself to Christianity, he is not entitled to claim any right over the Suit property. 6. The learned District Munsif, Tirumangalam after framing necessary issues dismissed the Suit filed by the Plaintiff. 7. Aggrieved over the Decree and Judgment passed by the learned District Munsif, Thirumangalam, the Plaintiff filed an Appeal in A.S. No. 180 of 2016, before the learned I Additional Subordinate Judge, Madurai. 8. After analysing the oral and documentary evidence adduced on both sides, the learned I Additional Subordinate Judge, Madurai, dismissed the Appeal filed by the Plaintiff. 9. Aggrieved over the same, the Appellant filed the present Appeal on the following Substantial Questions of Law: “(1) Whether the Courts below have committed an error in holding that the Appellant is not entitled to succeed to his father who was a Hindu, on account of the conversion of the Appellant to Christianity? (2) Whether the Courts below have committed an error in non-suiting the Appellant/Plaintiff for the simple reason that he has not chosen to examine himself as a Witness and was content with the examination of his Power Agent?” 10. Mr. V. Meenakshisundaram, learned Counsel appearing for the Appellant/Plaintiff would contend that merely because the Power of Attorney-holder of the Plaintiff deposed before the Trial Court as PW 1, the case of the Appellant/Plaintiff cannot be thrown out and that when the Defendants contend that the Suit property was alienated through an Oral Sale by the Plaintiff's father, the burden of proof is only on the Defendants to show that the property was sold in their favour. He would further contend that since the Defendants have not discharged their burden by adducing acceptable evidence, both the Courts below were wrong in dismissing the Suit filed by the Plaintiff. He would further contend that since the Suit property is worth more than Rs. 100 the alleged Oral Sale contended by the Defendants cannot be sustained in view of the provisions of Section 54 of Transfer Property Act. It is also contended by him that though it is true that the Plaintiff had converted to Christianity, he would not be disentitled to inherit the property of his father as per Section 26 of the Hindu Succession Act, 1956. It is relevant to extract Section 26 of the Hindu Succession Act, 1956: “Where before or after the commencement of this Act, a Hindu by conversion to another religion, children to him or her after such conversion and their descendants shall be disqualified from inheriting the property of any of their Hindu relatives, unless such children or descendants are Hindus at the time when the succession opens.” 11. The learned Counsel for the Plaintiff relied upon the decision of the Hon'ble Supreme Court in P. Rajini and another v. E. Ramesh and others, 2000 (2) MLJ 26 , and contended that no disqualification would be attached to a Hindu, who has ceased to be a Hindu and who has converted to another religion and that only the descendants alone would be prohibited from inheriting the properties of any of the Hindu relatives, as per Section 26 of the Hindu Succession Act. 12. Per contra, the learned Counsel appearing for the Respondents/Defendants contended that since the Suit was filed by the Power of Attorney-holder of the Plaintiff and the Plaintiff did not enter into the box, the Suit is liable to be dismissed. In this regard, he relied on the decision of the Hon'ble Supreme Court in Kandavel and others v. Chidambara Padayachi (died), 2005 (3) CTC 344. 13. At the out set, it may be observed that the Defendants admitted that the Suit property originally belonged to the Plaintiff's father, who died on 19.10.1996. It is also not in dispute that the present Plaintiff is his only Legal Heir. 14. 13. At the out set, it may be observed that the Defendants admitted that the Suit property originally belonged to the Plaintiff's father, who died on 19.10.1996. It is also not in dispute that the present Plaintiff is his only Legal Heir. 14. The specific contention of the Defendants is that in the year 1983, they got the possession of the Suit property after paying certain amount to the Plaintiff's father and their contention is that they were Mortgagees in the Suit property. They say it is an othi. It is almost an Usufructuary Mortgage, where the possession of the Suit property would be handed over to the Mortgagee. In the Written Statement, the period of “othi” is not clearly indicated. However, the learned Counsel for the Respondents/Defendants contended that the period of othi was for 10 years commencing from 1983 and that the Plaintiffs father sold the Suit property in favour of the Second Defendant orally. At this juncture, it is relevant to extract Section 54 of the Transfer of Property Act, which reads as follows: “54. “Sale” defined.- “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument. In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property. Contract of sale: A Contractor for the sale of immovable property is a contract that a sale of such property shall take place or terms settled between the parties. It does not, of itself, create any interest in or charge on such property.” 15. Therefore, it is clear that the transfer in the case of an immovable property when the value of which is Rs. 100 and upwards, it can be made only by registered instruments and in the instant case admittedly the value of Suit property is more than Rs. 100. Therefore, it is clear that the transfer in the case of an immovable property when the value of which is Rs. 100 and upwards, it can be made only by registered instruments and in the instant case admittedly the value of Suit property is more than Rs. 100. Therefore, the alleged Oral Sale claimed by the Defendants cannot be accepted especially when there is no evidence to substantiate the sale. 16. As per Section 26 of the Hindu Succession Act, the children bom to converted Christian or his descendants alone would be disqualified from inheriting the property and not the converter himself. In any event since the Defendants have not proved that they got the Suit property by way of an Oral Sale, their possession in the Suit property at the most can be construed only as a Tenant/Mortgagee and therefore, they cannot be heard to say that since the Plaintiff converted as a Christian, he cannot inherit the property of his father. 17. At this juncture, it is relevant to point out the other Legal Heirs have not questioned the Plaintiff's inheritance to the Suit property and the Defendants, who are only the Tenants in the Suit property cannot raise such a plea against the Plaintiff. Both the Courts below have completely committed an error in dismissing the Suit filed by the Plaintiff and the observations of both the Courts below are perverse. Therefore, an interference is called for in the instant Appeal. 18. The Second Appeal is allowed and the Decree and Judgment passed in A.S. No. 180 of 2006, dated 23.1.2007, on the file of the I Additional Sub-Court, Madurai, is set aside and the Defendants are directed to vacate the Suit premises and hand over the same to the Plaintiff within a period of two months from the date of receipt of a copy of this Judgment. No Costs. Consequently, connected Miscellaneous Petition is closed.