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2023 DIGILAW 1536 (MAD)

Thayarammal (Died) v. Palaniyappa Gounder (Died)

2023-04-03

P.VELMURUGAN

body2023
JUDGMENT : P. VELMURUGAN, J. Prayer: Second Appeal filed under Section 100 Code of Civil Procedure, against the Judgment and Decree dated 08.11.1994 and made in A.S.No. 62 of 1992 on the file of the Sub-Court, Karur, reversing the Judgment and decree dated 26.02.1990 in O.S.No. 279 of 1986 on the file of the Principal District Munsif, Kulithalai. 1. Originally, one Palaniyappa Gounder filed a suit in O.S.No. 279 of 1986 before the District Munsif, Kulithalai, against one Thayarammal for declaration and consequential relief of recovery of possession, mesne profits and cost of the suit. After trial, the said suit was dismissed by the trial Court by Judgment and Decree dated 26.02.1990. Challenging the said dismissal of the suit, the plaintiff Palaniyappa Gounder filed an appeal before the Sub-Court, Karur in A.S.No. 62 of 1992. After hearing, the learned Sub Judge allowed the appeal suit and decreed the original suit. Challenging the said Judgment and Decree passed by the learned Sub Judge, Karur, dated 08.11.1994, the defendant in the said suit has filed the present second appeal raising the following substantial questions of law: “(i) Is the learned Subordinate Judge right in invoking Section 14(2) of the Hindu Succession Act, when it is an admitted fact that the suit property was given to deceased Pappathi Ammal in lieu of her maintenance right as she had a pre-existing right of maintenance when her right got enlarged as per the provisions of Section 14(1) of Act 30 of 1956? (ii) Is the learned Subordinate Judge right in reversing the decision without properly serving notice on the defendant? (iii) When there is no evidence to indicate that the defendant trespassed is the learned Subordinate Judge right in granting a decree for possession? (iv) When there is no evidence regarding division of the suit property viz., the division of 8 acres 19 cents as 4.10 acres and 4.09 acres respectively is the present suit for possession without seeking for partition is maintainable in law? (v) When the documents produced by the defendant establish her possession over the suit property, is the learned Subordinate Judge right in holding that the plaintiff was dispossessed by the defendant after filing the suit? (v) When the documents produced by the defendant establish her possession over the suit property, is the learned Subordinate Judge right in holding that the plaintiff was dispossessed by the defendant after filing the suit? (vi) Is not the present suit is barred by principles of res judicata in view of the decision rendered earlier in O.S.No. 528 of 1978 wherein the vendor of the plaintiff suit for injunction against Pappathi Ammal was dismissed holding that Pappathi Ammal had right to be in possession?” 2. At the time of admission, this Court, considering the facts and circumstances of the case, formulated the following substantial questions of law: “(i) Is the learned Subordinate Judge is right in invoking Section 14(2) of the Hindu Succession Act when it is an admitted fact that the suit property was given to deceased Pappathi Ammal in lieu of her maintenance right as she had pre-existing right of maintenance when her right got enlarged as per the provisions of Section 14(1) of Act 30/56? (ii) Is not the present suit is barred by principles of res judicata in view of the decision rendered earlier in O.S.No. 528 of 1978 wherein the vendor of the plaintiff suit for injunction against Pappathi Ammal was dismissed holding that Pappathi Ammal had right to be in possession?” 3. The learned counsel for the appellant/defendant would submit that the mother of the defendant, by name, Pappathi Ammal is the first wife of one Aruvappu Reddiar and subsequent to the suit in O.S.No. 425 of 1928, there was a panchayat and subsequent to the said panchayat, the suit property and also adjacent property of the extent totally 8 acres 19 cents were given to the said Pappathi Ammal towards maintenance and she was continued to be in possession till the defendant derived her title. Even thereafter, the vendor of the plaintiff, namely, one Ramamurthy filed a suit against the said Pappathi Ammal in O.S.No. 528 of 1978 for injunction and the said suit was dismissed upholding the rights and possession of the said Pappathi Ammal. The present plaintiff is none other than the purchaser from the said Ramamurthy, who filed the suit in O.S.No. 528 of 1978, wherein the right of the Papathi Ammal was uphold and denied the rights and title of the vendor of the plaintiff. 4. The present plaintiff is none other than the purchaser from the said Ramamurthy, who filed the suit in O.S.No. 528 of 1978, wherein the right of the Papathi Ammal was uphold and denied the rights and title of the vendor of the plaintiff. 4. Further, the learned counsel would submit that the deceased Pappathi Ammal had obtained an absolute right immediately after passing the Act 30 of 1956. Therefore, the alleged settlement deed executed by the deceased Aruvappu Reddiar in favour of his son Ramamurthy is in valid and subsequently, the sale made by the said Ramamurthy in favour of the plaintiff in the suit, will not give any right and title. The person cannot convey the title, which he has not having and therefore, the subsequent purchaser cannot get a better title than his vendor. Therefore, once the property was given to the said Pappathi Ammal in lieu of maintenance even prior to the Act 30 of 1956 came into force and when she was in possession on the date of enactment, the limited interest enlarged into absolute her right and therefore, the subsequent alienation with reference to this property by the original owner will not convey any title and the learned Sub Judge failed to consider the said Act 30 of 1956. On the date of the Act, the said Pappathi Ammal was in possession in the property and she was having maintenance right and the subsequent enactment has given her the absolute right in the said properties total extent of 8 acres 19 cents which include the suit property and therefore, the present second appeal has been filed by the defendant. 5. He would further submit that since the defendant died during the pendency of the second appeal, her legal heirs have been impleaded. Hence, the learned counsel prays that the second appeal may be allowed and the Judgement and Decree passed by the learned Sub Judge, Karur, may be set aside. In support of his submission, the learned counsel for the appellant produced a Judgment of the Hon'ble Supreme Court of India reported in V. Tulasamma and Others vs. Sesha Reddy, (1977) 3 SCC 99 . 6. The learned counsel for the respondent/plaintiff would submit that the property with the larger extent originally belonged to one Aruvappu Reddiar. In support of his submission, the learned counsel for the appellant produced a Judgment of the Hon'ble Supreme Court of India reported in V. Tulasamma and Others vs. Sesha Reddy, (1977) 3 SCC 99 . 6. The learned counsel for the respondent/plaintiff would submit that the property with the larger extent originally belonged to one Aruvappu Reddiar. He executed the settlement deed dated 30.12.1965 in favour of his son Ramamurthy, who is the son through the second wife of the said Aruvappu Reddiar. Thereafter, he was enjoying the said extent of 4 acres 10 cents. Subsequently, the said Ramamurthy executed a sale deed in favour of the original plaintiff in the suit and he was in possession and enjoyment of the said property. Neither the appellant/defendant nor her mother was having any right and interest over the property. He would further submit that Section 14(1) of the Act would not apply to the present case on hand and Section 14(2) alone would apply, hence, the first appellate Court has rightly, appreciated the evidence and allowed the appeal suit and declared the title of the plaintiff and also the consequential relief. Therefore, there is no substantial question of law involved in this case and there is no perversity in appreciating the evidence by the first appellate Court and the first appellate Court has rightly found that the suit property originally belonged to Aruvappa Reddiar and the said Aruvappa Reddiar executed the settlement deed dated 30.12.1965 in favour of his son Ramamurthy born through his second wife and he was enjoying the property and sold the property to the original plaintiff. Therefore, the learned counsel submitted that there is no merit in the second appeal and he prayed for dismissal of this second appeal. 7. Heard the learned counsel appearing on either side and perused the materials available on records. 8. The appellant raised the substantial questions of law as stated above. However, considering the materials, this Court, while admitting the second appeal, formulated the substantial questions of law as stated above. Question No. 1 9. It is an admitted fact that the suit property along with the larger extent of the property 8 acres 19 cents originally belonged to Aruvappa Reddiar. He got a second wife, who is the mother of Ramamurthy. Question No. 1 9. It is an admitted fact that the suit property along with the larger extent of the property 8 acres 19 cents originally belonged to Aruvappa Reddiar. He got a second wife, who is the mother of Ramamurthy. Therefore, there is a dispute between Aruvappu Reddiar and the first wife Pappathi Ammal and there was a suit in O.S.No. 425 of 1928 for maintenance and pending the said suit, there was a panchayat, and in that panchayat, the said Aruvappu Reddiar has given total extent of 8 acres 19 cents to his first wife Pappathi Ammal towards maintenance and from the said date, Pappathi Ammal was in continuous possession of the suit property with the larger extent of totally 8 acres 19 cents. While she was in possession of the property, the second wife's son of Aruvappu Reddiar, namely, Ramamurthy filed a suit against the first wife Pappathi Ammal in O.S.No. 528 of 1978 stating that the said Aruvappu Reddiar has executed settlement deed in favour of him under registered settlement deed dated 30.12.1965 and based on the said settlement deed, he filed the suit for injunction. However, the said suit was dismissed and decided in favour of the said Pappathi Ammal holding that she was in possession of the suit property pursuant to the arrangement entered in the Panchayat to retain the suit property towards her maintenance rights. Therefore, when the Act 30 of 1956 came into force, the said Pappathi Ammal was in possession of the property in lieu of the maintenance right. 10. As per Section 14 of the Hindu Succession Act, the said Pappathi Ammal was having a limited interest as a maintenance. When the Act came into force, she was in possession of the property. Therefore, the limited interest enlarged into absolute interest and therefore, Pappathi Ammal was having right and title over the entire extent of 8 acres and 19 cents which includes the suit property to the extent of 4 acres and 10 cents. Therefore, subsequent to the enactment of the Act 30 of 1956, except Pappathi Ammal, no one has any right and interest over the property including Aruvappu Reddiar, who is the husband of Pappathi Ammal. Therefore, the settlement deed dated 30.12.1965 said to have been executed in favour the second wife's son Ramamurthy, is not valid in law. Therefore, subsequent to the enactment of the Act 30 of 1956, except Pappathi Ammal, no one has any right and interest over the property including Aruvappu Reddiar, who is the husband of Pappathi Ammal. Therefore, the settlement deed dated 30.12.1965 said to have been executed in favour the second wife's son Ramamurthy, is not valid in law. On the date of execution of the settlement deed, even Aruvappu Reddiar has no right and title over the suit property. He lost his right on the date of enactment of Act 30 of 1956, since the limited interest of the said property enlarged into the absolute right of the said Pappathi Ammal. Therefore, since the Pappathi Ammal was in possession and enjoyment of the property in lieu of the maintenance right on and after the Act 30 of 1956 came into force, she is having absolute right and interest over the property. Section 14(1) of Hindu Succession Act only would apply and Section 14(2) of the Act would not apply. Therefore, the Trial Court has rightly dismissed the said suit stating that the settlement deed, dated 30.12.1965, is not valid and therefore, the respondent/plaintiff is not having any interest and title over the property. Since neither the Aruvappu Reddiar nor his son Ramamurthy was having right and title over the property, the sale in favour of the original plaintiff in the suit by the said Ramamurthy is not valid. Since the settlement in favour of the Ramamurthy itself is not valid, he has no better title to convey the property to the original plaintiff in the suit. Therefore, the plaintiff has no right and title over the suit property. However, the first appellate Court reversed the finding and misinterpreted that Section 14(1) of the Act would not apply and Section 14(2) would apply. However, the legal heirs of the Pappathi Ammal, who is the defendant in the original suit, filed the second appeal. 11. There is no dispute with reference to the relationship that the Pappathi Ammal was the first wife of the Aruvappu Reddiar and even before the Act 30 of 1956 came into force, the Aruvappu Reddiar has given the property to the Pappathi Ammal for her maintenance. 11. There is no dispute with reference to the relationship that the Pappathi Ammal was the first wife of the Aruvappu Reddiar and even before the Act 30 of 1956 came into force, the Aruvappu Reddiar has given the property to the Pappathi Ammal for her maintenance. When the Act, 30 of 1956 came into force, the said Pappathi Ammal alone was in possession and enjoyment of the property and therefore, the limited interest of the maintenance right enlarged into absolute right and hence, Section 14(1) only would apply and not 14(2) of the Act. Therefore, substantial question of law No. 1 is answered accordingly in favour of the appellant. Question No. 2: 12. As already stated, the suit property originally belonged to Aruvappu Reddiar and Pappathi Ammal is his first wife. Even in the year 1928, Pappathi Ammal filed a suit against Aruvappu Reddiar for maintenance and there was a panchayat and during panchayat, the suit property to the larger extent of totally 8 acres 19 cents was given to the Pappathi Ammal through panchayat and Pappathi Ammal was in possession and enjoyment of the property in lieu of maintenance. In the meanwhile, 1956, Hindu Succession Act has come into force. Section 14 of the Act 30 of 1956 reads as follows: “14. (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. Properly of a female Hindu to be her absolute property. 648 THE GAZETTE OF INDIA EXTRAORDINARY [PAHT II 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 her 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. Thereafter, Aruvappu Reddiar said to have executed settlement deed in favour of his second wife's son Ramamurthy under registered settlement deed dated 13.12.1965. Based on the said settlement, the said Ramamurthy filed a suit in O.S.No. 528 of 1978 against Pappathi Ammal only for injunction. The said suit was dismissed and the right and title of the said Pappathi Ammal was upheld. Thereafter, the said Pappathi Ammal was in possession and enjoyment of the property. After her death, her daughter had inherited the property from the said Pappathi Ammal and she was in possession. Neither Aruvappu Reddiar nor his son through his second wife, are not having any right and interest over the property after the Act 30 of 1956 came into force. Therefore, the settlement deed itself is not valid and based on the settlement deed, he filed O.S.No. 525 of 1978 and he lost the suit and subsequently, he sold the property to the original plaintiff. The suit filed by Ramamurthy in O.S.No. 528 of 1978 on the file of the District Munsif, Karur ended finality and therefore, neither Ramamurthy nor his successor or the subsequent purchaser from the property has no right in the property. Since the right of the parties was decided in the earlier suit in O.S.No. 528 of 1978, the present suit in O.S.No. 279 of 1986 on the file of the District Munsif, Kulithalai is barred by res judicata. Even otherwise, in view of the Hindu Succession Act 1956 came into force, the plaintiff is not entitled to get any decree as sought for in the plaint. Hence, the second substantial question of law No. 2 is answered accordingly. 14. The suit property with larger extent given to Pappathi Ammal in the Panchayat for maintenance was not in dispute and there was no dispute in respect of the possession and enjoyment of the said Pappathi Ammal. Hence, the second substantial question of law No. 2 is answered accordingly. 14. The suit property with larger extent given to Pappathi Ammal in the Panchayat for maintenance was not in dispute and there was no dispute in respect of the possession and enjoyment of the said Pappathi Ammal. Though the contention of the respondent is that Section 14(2) would only apply and Section 14(1) would not apply, admittedly, on the date of enactment of the Act 30 of 1956, the Pappathi Ammal was in possession and enjoyment of the property in lieu of the maintenance. Therefore, since on the date of the Act 30 of 1956 came into force, if the Pappathi Ammal was in possession of the property in lieu of the maintenance, that limited interest would enlarge into absolute and the suit property is absolute property of Pappathi Ammal. Therefore, the Judgment relied on by the learned counsel for the appellant reported in (1977) 3 SCC 99 (cited supra) is squarely applicable to the present case on hand. In view of the above, both the substantial questions of law are decided in favour of the appellant. Hence, the second appeal is liable to be allowed. 15. In the result, the Second Appeal is allowed. No costs.