Research › Search › Judgment

Madras High Court · body

2020 DIGILAW 177 (MAD)

Thirugnanasambandamoorthy v. Sithalakshmi Ammal

2020-01-24

N.SATHISH KUMAR

body2020
JUDGMENT : N. Sathish Kumar, J. 1. The Second Appeal in S.A. No. 795 of 1993 is filed against the concurrent finding of the Courts below, decreeing the suit filed for recovery of possession and for past profits. 2. The Second Appeal in S.A.(MD) No. 447 of 2008 is filed as against the concurrent finding of the Courts below against the decree and judgment passed for granting partition. 3. The revision in C.R.P.(PD)(MD) No. 1299 of 2016 is filed to strike off the interlocutory application filed in I.A. No. 271 of 2011 in O.S. No. 128 of 1981 on the file of the District Munsif Court, Thiruvaiyaru. 4. Since the parties in both the appeals and the revision are one and the same and the issue relates to the settlement deed dated 26.02.1972, this Court is of the view that in order to give quietus to the litigation, both the appeals and the revision are being disposed of in this common judgment. 5. The brief facts leading to the filing of both the suits and the revision are as follows: The suit properties comprised in both the suits originally owned by one T.M. Anna Pillai. He had five daughters, namely Kalyanasundari Ammal, Vimala Devi, Senthilkumari, Parimala Gandhi and Pankajavalli. The plaintiff in O.S. No. 128 of 1981 [originally, numbered as O.S. No. 171 of 1978 on the file of the learned Subordinate Judge, Thanjavur] is the grandson of the said T.M. Anna Pillai and son of one of the daughters, namely Kalyanasundari Ammal. The suit in O.S. No. 128 of 1981 was filed by the grandson, on the basis of the settlement deed dated 26.02.1972 for recovery of possession of the properties more fully mentioned in the fourth item in the settlement deed. It is stated in the plaint in O.S. No. 128 of 1981 that the property was settled in favour of the grandson. Subsequently, settlement deed was cancelled by T.M. Anna Pillai. Therefore, he has filed a suit challenging the said cancellation. 6. The above suit was resisted by the other legal heirs mainly on the ground that the deed referred as a settlement is not a settlement deed, but, it is only a Will. The same is also revoked by T.M. Anna Pillai. Therefore, the suit has to be dismissed. 7. On the side of the plaintiff, P.W. 1 and P.W. 2 were examined and Exs. The same is also revoked by T.M. Anna Pillai. Therefore, the suit has to be dismissed. 7. On the side of the plaintiff, P.W. 1 and P.W. 2 were examined and Exs. A.1 to A.3 were marked. On the side of the defendants, D.W. 1 and D.W. 2 were examined and Exs. B.1 to B.15 were marked. 8. The Trial Court has held that the settlement deed dated 26.02.1972 is only a Will and not a settlement. The first Appellate Court has also confirmed the finding of the Trial Court, as against which, the present Second Appeal in S.A. No. 795 of 1993 came to be filed. 9. While admitting the Second Appeal, the following substantial question of law was framed: "Whether the revocation of the deed Exhibit A.8 is enforceable under law, where the settlor under Exhibit A1 binds himself by a voluntary deed and does not reserve a liberty to himself with a power to revoke the said deed?". 10. It is also relevant to note that the suit in O.S. No. 106 of 1992, which was the subject matter of S.A. (MD) No. 447 of 2008, was filed by the mother of the plaintiff in O.S. No. 128 of 1981 as against her sisters and mother, claiming partition in respect of item Nos. 1 to 3 more fully mentioned in the settlement deed. The suit was contested by the first and second defendants therein. 11. On the side of the plaintiff, the plaintiff herself was examined as P.W. 1 and Exs. A.1 to A.7 were marked. On the side of the defendants, D.W. 1 was examined and Ex. B.1 was marked. 12. The said suit was decreed by passing a preliminary decree. On appeal, the first Appellate Court has also confirmed the decree and judgment of the Trial Court, as against which, the present Second Appeal in S.A.(MD) No. 447 of 2008 is filed. 13. While admitting the Second Appeal, the following substantial question of law was framed: "Whether the judgment and decree of the Court below is perverse on account of its misconstruction of document in Ex. A.1?" 14. Subsequently, this Court, by order dated 12.03.2015, framed the following additional substantial questions of law for consideration: "(i) Whether the judgment dated 02.08.1988 made in S.A. No. 845 of 1988, holding that Ex. A.1?" 14. Subsequently, this Court, by order dated 12.03.2015, framed the following additional substantial questions of law for consideration: "(i) Whether the judgment dated 02.08.1988 made in S.A. No. 845 of 1988, holding that Ex. B.1 is only the Settlement Deed and not a Will; would have a bearing on the decision to be rendered in this second appeal? (ii) Whether a mere suit for recovery of possession without a prayer for declaration, is maintainable in law?" 15. During the pendency of the proceedings, the Second Appeal in S.A. No. 795 of 1993 was allowed by this Court in the absence of respondents, by judgment dated 13.06.2007 and the suit originally filed in O.S. No. 128 of 1981 is decreed. Therefore, the plaintiff in the above suit has filed an application in I.A. No. 271 of 2011 for appointment of Commissioner to ascertain the mesne profits. Thereafter, on the application filed by the respondents in S.A. No. 795 of 1993, the judgment dated 13.06.2007 was recalled and the Second Appeal has been restored to file for re-hearing and to dispose of the appeal on merits. At that stage, Civil Revision Petition has been filed for striking off the application filed for appointment of Commissioner. This is the background on which two appeals and the Civil Revision Petition are filed. 16. It is also relevant to record the following undisputed facts: T.M. Anna Pillai and his wife Sitalakshmi Ammal had five daughters, namely Kalyanasundari Ammal, Vimala Devi, Senthilkumari, Parimala Gandhi and Pankajavalli. The said T.M. Anna Pillai had extensive properties covered under Ex. A.1-settlement deed dated 26.02.1972 marked in both the suits. In the settlement deed, after his life time, life interest was given to his wife Sitalakshmi Ammal. As per the settlement, the residential house, in which they were residing, should be given to the eldest daughter Kalyanasundari Ammal and after discharge of the loans, if any, the remaining properties should equally be divided between all the five daughters. The residential house should be enjoyed by the first daughter during her life time and after her life time, it should be given to the eldest son Thirugnanasambanda Moorthy and it is also referred in the latter clause that Item No. 4 in the settlement deed should be given to his grandson Thirugnanasambanda Moorthy. The residential house should be enjoyed by the first daughter during her life time and after her life time, it should be given to the eldest son Thirugnanasambanda Moorthy and it is also referred in the latter clause that Item No. 4 in the settlement deed should be given to his grandson Thirugnanasambanda Moorthy. Based on the above document, the plaintiff in O.S. No. 128 of 1981, which is the subject matter in the appeal in S.A. No. 795 of 1993, filed a suit originally on the file of the learned Subordinate Judge, Thanjavur, against his grandparents T.M. Anna Pillai and Sitalakshmi Ammal as defendants 1 and 2 and one Neelambal and Senthamarai Ammal as defendants 3 and 4 for recovery of possession of item No. 4 of the properties mentioned in the settlement deed and for mesne profits. The above suit was transferred to the District Munsif Court, Thiruvaiyaru, on the ground of pecuniary jurisdiction and re-numbered as O.S. No. 128 of 1981. 17. At the same time, the plaintiff in O.S. No. 128 of 1981 and his mother, namely the eldest daughter of T.M. Anna Pillai and Sitalakshmi Ammal, filed a suit in O.S. No. 172 of 1978 against the remaining four daughters of T.M. Anna Pillai, her parents and one Jameela Beevi for declaration that they were entitled to the residential house after the life time of Sitalakshmi Ammal and for consequential permanent injunction to restrain the defendants from alienating the said property. 18. In the meanwhile, O.S. No. 128 of 1981 was tried by the District Munsif Court, Thiruvaiyaru. In the above suit, the main issue was as to whether the document dated 26.02.1972 executed by T.M. Anna Pillai is a Will or settlement and whether T.M. Anna Pillai had any right to revoke the deed dated 26.02.1972 by another document dated 27.03.1975. The Trial Court dismissed the suit by judgment dated 13.02.1982 holding that the above document is only a Will and the first defendant therein had a right to revoke the same at any time and the same being revoked under Ex. B.8 dated 27.03.1975 and the plaintiff cannot claim any right over the suit properties. The Trial Court dismissed the suit by judgment dated 13.02.1982 holding that the above document is only a Will and the first defendant therein had a right to revoke the same at any time and the same being revoked under Ex. B.8 dated 27.03.1975 and the plaintiff cannot claim any right over the suit properties. Aggrieved by the dismissal of the suit, Thirugnanasambanda Moorthy preferred an appeal in A.S. No. 36 of 1982 on the file of the learned Subordinate Judge, Thanjavur, in whose file, the other suit filed by Kalyanasundari Ammal and Thirugnanasambantha Moorthy in O.S. No. 172 of 1978 was also pending. Pending the suit and appeal before the learned Subordinate Judge, Thanjavur, T.M. Anna Pillai died on 04.04.1984 and all his four other daughters were brought on record as his legal heirs and representatives. Both the suit in O.S. No. 172 of 1978 as well as A.S. No. 36 of 1982 filed against the decree and judgment in O.S. No. 128 of 1981 were taken up together and the learned Subordinate Judge disposed of both the appeal and the suit in his common judgment dated 31.12.1984. In the above common judgment, the decree and judgment passed by the Trial Court in O.S. No. 128 of 1981 was confirmed. The other suit filed by the plaintiffs in O.S. No. 172 of 1978 is also dismissed by the learned Subordinate Judge. As against the dismissal of the appeal in A.S. No. 36 of 1982, the plaintiff in O.S. No. 128 of 1981 has filed the present Second Appeal in S.A. No. 795 of 1993. As against the dismissal of the suit in O.S. No. 172 of 1978, in a common judgment by the learned Subordinate Judge, Thanjavur, Kalyanasundari Ammal and the appellant in S.A. No. 795 of 1993 preferred a separate appeal in A.S. No. 59 of 1986 on the file of the learned District Judge, West Thanjavur. The learned District Judge reversed the finding of the Trial Court holding that the document dated 26.02.1972 is not a Will and held that the same is a settlement deed. As such, it is irrevocable by T.M. Anna Pillai. The above appeal was allowed on 28.10.1987. The learned District Judge reversed the finding of the Trial Court holding that the document dated 26.02.1972 is not a Will and held that the same is a settlement deed. As such, it is irrevocable by T.M. Anna Pillai. The above appeal was allowed on 28.10.1987. As against the above judgment and decree of the appellate Court, Sitalakshmi Ammal and her two daughters filed a Second Appeal before this Court in S.A. No. 845 of 1988 and during the admission stage itself, this Court dismissed the said Second Appeal by confirming the finding of the first Appellate Court and held that the document is only a settlement. The judgment and decree of this Court in S.A. No. 845 of 1988 were filed as Exs. A.3 and A.4 in O.S. No. 106 of 1992. 19. After the death of T.M. Anna Pillai, his eldest daughter Kalyanasundari Ammal filed a suit in O.S. No. 106 of 1992 against her other four sisters and her mother, claiming partition. The said suit was decreed by passing a preliminary decree, against which, appeal was preferred in A.S. No. 33 of 2006 before the learned Principal District Judge, Thanjavur and the same was dismissed, by judgment dated 13.07.2007, which is the subject matter of S.A.(MD) No. 447 of 2008. This is the background of both the suits. 20. The learned counsel for the appellant in S.A. No. 795 of 1993 submitted that the document in Ex. A.1 filed in both the suits held to be a settlement deed by this Court in S.A. No. 845 of 1988 and the above finding is reached finality between the parties and all the legal heirs are parties in the Second Appeal. Such being the position, once this Court has already held that the document in question, namely Ex. A.1 is a settlement deed, S.A. No. 795 of 1993 has to be allowed. It is his contention that though the earlier clause in the settlement indicates that after the life time of Sitalakshmi Ammal, except the residential house, all the properties would equally go to all the daughters of settlor, in the latter clause, the settlor made a provision in respect of the fourth item of properties for the plaintiff. Hence, his contention is that the plaintiff in O.S. No. 128 of 1981 is certainly entitled to recovery of possession in respect of the fourth item of properties. Hence, his contention is that the plaintiff in O.S. No. 128 of 1981 is certainly entitled to recovery of possession in respect of the fourth item of properties. Admittedly, S.A. No. 845 of 1988 was already decided in respect of the residential house, which is more fully mentioned in item No. 5. Therefore, his contention is that only the remaining properties found in the settlement deed, namely item Nos. 1 to 3 alone are liable to be partitioned, which was also rightly decreed by the Trial Court in O.S. No. 106 of 1992. The appeal against the suit was also dismissed. Therefore, S.A.(MD) No. 447 of 2008 is liable to be dismissed. 21. Whereas, the learned Senior Counsel appearing for the contesting respondents in S.A. No. 795 of 1993 and the appellants in S.A.(MD) No. 447 of 2008 has fairly conceded that the document in question was held to be a settlement by this Court in S.A. No. 845 of 1988. The above judgment and decree, which were marked as Exs. A.3 and A.4 in O.S. No. 106 of 1992, are binding on all the parties, since all the legal heirs were already arrayed as parties in the above suit and the matter has reached finality. Now, his only contention is that in so far as the partition is concerned, the Courts below wrongly interpreted the document that only one of the eldest sisters alone filed a suit for partition in respect of three items, namely item Nos. 1 to 3. The plaintiff has conveniently omitted to include other item. The construction of the document has not been properly done by the first Appellate Court. Hence, it is his contention that as per the settlement deed, the residential house alone should be given to the plaintiff in O.S. No. 128 of 1981. Whereas, the former clause in the settlement clearly indicates that after the life time of mother, the remaining property should be divided equally among all the daughters. In the latter clause, it is stated that the fourth item in the settlement should go to grandson. Hence, it is his contention that as far as the Will is concerned, the latter clause will prevail over. Whereas, in the settlement, transfer has been effected and the former clause will prevail over. If there is any ambiguity, two views are possible. Hence, it is his contention that as far as the Will is concerned, the latter clause will prevail over. Whereas, in the settlement, transfer has been effected and the former clause will prevail over. If there is any ambiguity, two views are possible. The former clause, which will give effect to all the clauses, will prevail over the latter clause. Hence, it is his contention that there is a conflict between the earlier clause and the latter clause and it is not possible to give effect to all of them. Only the former clause must prevail over, which will override the latter clause. In support of his submissions, he has relied upon the judgment in Radha Sundar v. Mohd. Jahadur Rahim [ AIR 1959 SC 24 ]. 22. In reply, the learned counsel appearing of the appellant in S.A. No. 795 of 1993 fairly conceded that if the Court comes to the conclusion that only the former clause will prevail over, then he has no objection for partition. 23. Now, the controversy is in respect of Ex. A.1 filed in both the suits. Though different suits were filed by the parties, it is to be noted that the plaintiff, who is the appellant in S.A. No. 795 of 1993 and the plaintiffs in O.S. No. 172 of 1978 have filed a suit based on the settlement deed before their rights actually get crystallised. The right of the plaintiff would get crystallised only after the life time of life interest holder. However, the suits have been filed inter alia contending that the document is a settlement and its revocation is not valid and the defendants, namely the other daughters of T.M. Anna Pillai took a stand that the document is a Will. However, in the earlier round of litigation in O.S. No. 172 of 1978 filed based on the above document seeking declaration in respect of the residential house, which is shown as fifth item in the settlement, the main issue was whether the document is a Will or settlement. The first Appellate Court found that it is only a settlement which was also confirmed by this Court in S.A. No. 845 of 1988. This Court, while dismissing the Second Appeal at the admission stage itself, has clearly recorded a finding that the document is only a settlement and not a Will. The first Appellate Court found that it is only a settlement which was also confirmed by this Court in S.A. No. 845 of 1988. This Court, while dismissing the Second Appeal at the admission stage itself, has clearly recorded a finding that the document is only a settlement and not a Will. In view of such finding and the same reached finality, the parties are certainly bound by the decision. This Court has also granted a decree, whether or not, rights have been crystallised at the time of filing suit, and the same is not a germane for consideration at this stage, since all of them have contested the suit and after contest, the matter reached finality. This Court has categorically recorded that Ex. A.1 is a settlement deed. In view of the fact that the matter has already reached finality, as far as construction of the document is concerned, it is binding on the parties. Accordingly, this Court has to necessarily hold that the findings of the Trial Court and the first appellate Court in O.S. No. 128 of 1981 that the document is only a Will has to be necessarily set aside. 24. In the above background, now, it has to be seen whether the decree and judgment of the Trial Court in O.S. No. 106 of 1992 is valid in the eye of law and the plaintiff in that case has omitted to include other properties. It is relevant to note that, as already stated, T.M. Anna Pillai had five daughters, namely Kalyanasundari Ammal, Vimala Devi, Senthilkumari, Parimala Gandhi and Pankajavalli. Kalyanasundari Ammal is the eldest daughter, who is the mother of Thirugnanasambanda Moorthy, who filed two suits originally, one suit namely O.S. No. 128 of 1981 is the subject matter of the present Second Appeal in S.A. No. 795 of 1993. The other suit, namely O.S. No. 172 of 1978 filed along with his mother Kalyanasundari Ammal in respect of the residential house alone, which is more fully mentioned as fifth item in the settlement deed, is also reached finality. The said Kalyanasundari Ammal, the eldest daughter, has filed a suit in O.S. No. 106 of 1992 claiming one fifth share only in respect of item Nos. 1 to 3 mentioned in the settlement deed. The said Kalyanasundari Ammal, the eldest daughter, has filed a suit in O.S. No. 106 of 1992 claiming one fifth share only in respect of item Nos. 1 to 3 mentioned in the settlement deed. Whereas, she has omitted to include item No. 4, since the same was the subject matter in O.S. No. 128 of 1981, which was filed by her son. Similarly, she has not included the residential house, since the matter is already reached finality in S.A. No. 845 of 1988. 25. The Trial Court has decreed the suit and the first Appellate Court also decreed the suit only in respect of item Nos. 1 to 3 contained in the settlement deed. The main contention of the other daughters is that they are entitled to share in the fourth item mentioned in the settlement deed, which is the subject matter of the appeal in S.A. No. 795 of 1993. The main contention is that without proper construction of the document, the Courts below have decreed the suit and they are also entitled to equal share in the fourth item of properties. 26. Now, the question is as to whether the document is a settlement deed or not. In view of the above background, Ex. A.1 has to be seen only as a settlement deed. Now, in the light of the above findings, it has to be seen that what are the nature of properties settled in favour of all the legal heirs of T.M. Anna Pillai. 27. A reading of the recitals in the settlement deed makes it clear that T.M. Anna Pillai had executed a settlement originally in favour of his wife Sitalakshmi Ammal creating certain obligations on her to perform the marriage of unmarried daughters and the residential house mentioned as item No. 5 of the settlement, should be given to the eldest daughter Kalyanasundari Ammal till her life time. After her life time, it should go to her eldest son Thirugnanasambanda Moorthy. In the settlement, it is specifically stated in the former clause as follows :- OTHER LANGUAGE 28. In the latter clause, it is stated that the property situated in Athoor Village should be given to the plaintiff's grandson Thirugnanasambanda Moorthy and the residential house should also be given to him. In the settlement, it is specifically stated in the former clause as follows :- OTHER LANGUAGE 28. In the latter clause, it is stated that the property situated in Athoor Village should be given to the plaintiff's grandson Thirugnanasambanda Moorthy and the residential house should also be given to him. It is to be noted that once the document is held to be a settlement, transfer of right to enjoyment or future right to enjoyment was created in praesenti. Former clause makes it very clear that after defraying expenses, property should be divided among all the legal heirs and the residential house is given for the first daughter till her life time and, thereafter, to his grandson. In respect of the residential house, decree is already reached finality in S.A. No. 845 of 1988 in favour of the plaintiff/appellant in S.A. No. 795 of 1993. The fact remains that the former clause contained in the settlement indicating that the remaining property should be divided among all the legal heirs shall prevail over. Therefore, the Courts below have not properly considered the document and granted partition only in respect of item Nos. 1 to 3 in the settlement deed. The Courts below ought to have included item No. 4 and granted partition declaring the rights in respect of one fifth share in the property as per their entitlement. Accordingly, this Court is of the view that though item No. 4 was not included in the suit property, this Court set right the controversy once for all between the parties, who are all legal heirs of T.M. Anna Pillai, who is the settlor, declaring that each daughter is entitled to one fifth share in item Nos. 1 to 4 mentioned in the settlement deed. Though the above item No. 4 was not included in the suit property, there is no bar in law to pass a preliminary decree even in the appeal stage in respect of the property, which was omitted to be included in the schedule. But, admittedly, the property is available on the basis of Ex. A.1 and the parties are at liberty to seek amendment to correct the preliminary decree and also file a necessary application for final decree proceedings including the above fourth item mentioned in the settlement deed for dividing the property as per their entitlement and each daughter is entitled to one fifth share. A.1 and the parties are at liberty to seek amendment to correct the preliminary decree and also file a necessary application for final decree proceedings including the above fourth item mentioned in the settlement deed for dividing the property as per their entitlement and each daughter is entitled to one fifth share. As any of the daughters died, the legal heirs together are entitled to respective shares of their mothers. Accordingly, this Court declared the rights of all the daughters of T.M. Anna Pillai in item Nos. 1 to 4 mentioned in Ex. A.1 that each daughter is entitled to one fifth share. 29. In view of the above finding, though the settlement was held to be valid and the finding of the Courts below in O.S. No. 128 of 1981 and the first appellate Court finding that the document is a Will is set aside, which is the subject matter of the above suit for recovery of possession of the fourth item mentioned in the settlement, since this Court has held that the fourth item is also liable for partition by all the daughters of the said T.M. Anna Pillai, the plaintiff in O.S. No. 128 of 1981 is not entitled to recovery of possession and mesne profits. Accordingly, the suit filed for recovery of possession is dismissed and the finding of the Trial Court and the first Appellate Court that the document in question is not a settlement and a Will alone is set aside. All the substantial questions of law are answered accordingly. 30. In fine, (i) S.A. No. 795 of 1993 is partly allowed. No costs. (ii) S.A.(MD) No. 447 of 2008 is allowed in part. No costs. Consequently, the connected miscellaneous petition is closed. 31. Civil Revision Petition is filed challenging the interlocutory application filed for appointment of an Advocate Commissioner to ascertain the mesne profits and such application is filed on the basis of the exparte order passed by this Court allowing S.A. No. 795 of 1993 and later, it was restored. Now S.A. No. 795 of 1993 is disposed of on merits holding that the plaintiff in O.S. No. 128 of 1981 is not entitled for recovery of possession. Thus, the Civil Revision Petition has to be allowed and accordingly, the same stands allowed and the interlocutory application in I.A. No. 271 of 2011 in O.S. No. 128 of 1981 is struck off. Thus, the Civil Revision Petition has to be allowed and accordingly, the same stands allowed and the interlocutory application in I.A. No. 271 of 2011 in O.S. No. 128 of 1981 is struck off. No costs. Consequently, the connected miscellaneous petition is closed.