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2023 DIGILAW 223 (MAD)

S. Saroja v. M. Balasubramanian

2023-01-12

K.MURALI SHANKAR

body2023
JUDGMENT : PRAYER :- Appeal Suit filed under Section 96 of the Code of Civil Procedure against the Judgment and Decree, passed in O.S.No.47 of 2012, dated 29.01.2014, on the file of II Additional District Judge, Trichy. The Appeal Suit is directed against the judgment and decree passed in O.S.No.47 of 2012, dated 29.01.2014, on the file of II Additional District Court, Trichy. 2. The gist of the plaintiff's case in short is as follows: (a) One Mariyayee and her husband Vadivelu had two sons viz., Chellamuthu and Muthukaruppan and a daughter by name Thangaponnammal. Chellamuthu had a son viz., Shanmugam and Muthukaruppan had two sons viz., Balasubramanian (plaintiff) and Ramachandran. The first defendant Saroja is the wife of the said Shanmugam and the second defendant Sasikala is the daughter and the third defendant Sathish Kumar is the said Shanmugam and Saroja. Mariyayee's daughter Thangaponnammal had no issues. There was a strained relationship between the first defendant and her husband and that resulted in a maintenance case in M.C.No.22 of 1988. (b) The said Mariyayee Ammal had executed a gift settlement deed in favour of her daughter Thangaponnammal, vide document dated 23.01.1961 settling the suit property in her name. It is evident from the recitals of the settlement deed that if any child is born to Thangaponnammal, her child will take one share and her other three grandsons will take two shares and in the absence of any legal heir to Thangaponnammal, the properties will devolve upon the said Shanmugam, Balasubramanian and Ramachandran. The said Ramachandran had died as a bachelor in or about 1978 leaving behind his brother – the plaintiff herein. Hence, the plaintiff is entitled to 2/3 shares and whereas the defendants are entitled to 1/3 share in the suit property. (c) The plaintiff has constructed a house on the western part of the property leaving space as pathway in between the portion in occupation of the plaintiff and the remaining area of the suit property. The plaintiff is entitled to 3200sqft. The defendants are occupying the area more than 1600sqft and they have also blocked the access of the plaintiff from his house towards Jeeva street by blocking the same by taking out a compound wall. The plaintiff's repeated demands for partition were of no avail. Hence, the plaintiff has sent a legal reply dated 01.03.2012 with untrue facts. The defendants are occupying the area more than 1600sqft and they have also blocked the access of the plaintiff from his house towards Jeeva street by blocking the same by taking out a compound wall. The plaintiff's repeated demands for partition were of no avail. Hence, the plaintiff has sent a legal reply dated 01.03.2012 with untrue facts. Meanwhile, the said Thangaponnammal along with Shanmugam have executed a settlement deed in favour of the defendants. But Thangaponnammal had no right to execute any document with respect to the property. Moreover the said settlement deed has been revoked by the said Thangaponnammal on 01.12.1987. Hence, the above suit for partition claiming 2/3 shares in the suit property. 3. The defence of the defendants 1 to 3 in short is as follows: The first defendant is the adopted daughter of Thangaponnammal. Thangaponnammal had executed a settlement deed in favour of the defendants and in that document, the first defendant has been referred as the adopted daughter of Thangaponnammal. The settlement deed executed by Thangaponnammal is true, valid and binding on the plaintiff. But the defendants have filed a suit in O.S.No.592 of 2003 against Thangaponnammal and the same was decreed on 05.12.2003. The defendants have come to know recently that Thangaponnammal had revoked the settlement deed. Even otherwise, such revocation is invalid and the settlement already made holds good. The plaintiff has come forward with the suit after several years and hence, the suit is barred by limitation. The plaintiff has undervalued the suit and there is no cause of action and the alleged one is false and hence, the suit is liable to be dismissed. 4. On the basis of the above pleadings, the trial Court has framed the following issues: (1) Whether the plaintiff is entitled for the relief of partition? (2) Whether the plaintiff is entitled for the relief of rendition of accounts? (3) Whether it is true that Thangaponnammal settled her property on 13.05.1993 in favour of the defendants? (4) Whether the suit is barred by limitation? (5) To what relief? 5. During trial, the plaintiff has examined himself as P.W.1 and exhibited 11 documents as Exs.A.1 to A.11. The defendants have examined the first defendant as D.W.1 and two other witnesses viz., Thiru.Balasubramanian and Thiru.Dhanabalan as D.W.2 D.W.3 respectively and exhibited 6 documents as Exs.B.1to B.6. (4) Whether the suit is barred by limitation? (5) To what relief? 5. During trial, the plaintiff has examined himself as P.W.1 and exhibited 11 documents as Exs.A.1 to A.11. The defendants have examined the first defendant as D.W.1 and two other witnesses viz., Thiru.Balasubramanian and Thiru.Dhanabalan as D.W.2 D.W.3 respectively and exhibited 6 documents as Exs.B.1to B.6. The trial Court has exhibited the judgment and decree passed in O.S.No.592 of 2003 as Exs.C.1 and C.2 respectively and whereas the witnesses have produced four documents as Exs.X.1 to X.4. The learned trial Judge, upon considering the evidence both oral and documentary and on hearing the arguments of both sides, has passed the impugned Judgment dated 29.01.2014, partly decreeing the suit and the plaintiff was granted with the relief of preliminary decree for dividing the suit property into three shares and the allotment of two shares in the plaintiff. Aggrieved by the said judgment and decree, the defendants 1 to 3 have come forward with the present Appeal Suit. 6. The appeal grounds in short are as follows: (1) The trial Court has failed to appreciate that the defendants have been in possession and enjoyment of their share of the property including pucca house from 1993 onwards by mutating revenue record and by paying tax and electricity bills etc. (2) The trial Court has failed to appreciate that the entire case of the plaintiff is based on the recitals in the settlement deed dated 23.01.1961, even assuming that the settlement deed is otherwise valid, the sale would become into effect upon the death of the settle Thangaponnammal, who died in the year 2000. (3) The trial Court has erred in considering the effect of Section 14 of Hindu Succession Act vis-a-vis the settlement deed dated 23.01.1961. (4) The trial Court has also failed to appreciate the fact that after the advent of Section 14 of the Hindu Succession Act, the property of a Hindu family, however acquired, is not an absolute property with all attendant powers of alienation. (5) The trial Court has failed to appreciate that after the advent of Hindu Succession Act more particularly Section 14, the settled norm is that a Hindu woman would enjoy the property standing in her name absolutely. (5) The trial Court has failed to appreciate that after the advent of Hindu Succession Act more particularly Section 14, the settled norm is that a Hindu woman would enjoy the property standing in her name absolutely. (6) The trial Court has also failed to appreciate that Thangaponnammal exercising her absolute right over the suit property has settled a portion of the same under Ex.A5, dated 13.05.1993. (7) The trial Court has also failed to appreciate that the property originally belonged to one Mariyayee Ammal, who had three children and as such, all the three children would have an equal share in the property of Mariyayee Ammal, who died intestate. (8) The trial Court has also failed to appreciate that Ex.A.2 sale deed which seeks to defeat the vested right of the children of Mariyayee Ammalmore particularly Thangaponnu would be hit by the operation of Section 14(1) of the Hindu Succession Act. (9) Even assuming that Ex.A.2, which grants Thangaponnammal a limited lifetime interest in the property is valid, the trial Court is erred in its interpretation of other recitals of the settlement deed and also failed to understand the intention of the settlor Mariyayee Ammal. (10) The trial Court erred in its interpretation that the intention of the settlor was to divide the property into four shares with one share each grandsons mentioned therein and one share to the children born to Thangaponnammal and such an interpretation is not borne out by the recitals of the settlement deed. (11) The trial Court has failed to appreciate that the rules of inheritance in operation at the time of execution of the settlement deed in Ex.A.2 and more particularly the provisions of Sections 15 and 16 of the Act. (12) The trial Court has failed to appreciate that the non-joinder of other heirs of Ramachandran is fatal and the suit is ought to be dismissed. 7. The points that arose for consideration are (1) Whether the trial Court erred in deciding that the first defendant is not the adopted daughter of Thangaponnammal despite showing that the said Thangaponnammal hereself had admitted in the settlement deed executed by her on 13.05.1993 that the first defendant was her adopted daughter and that the said factum was not disputed by the plaintiff specifically? (2) Whether the trial Court erred in interpretating the terms of the settlement deed dated 23.01.1961and gave a finding that the intention of the settlor was to divide the property into four shares and to allot one share each to the grandsons mentioned therein and one share to the child to be born to Thangaponnammal, despite showing that the intention of the settlor to give one share to the descendants through each of her children, which is clearly evident from the recitals of the settlement deed? (3) Whether the appeal suit is to be allowed? (4) To what reliefs the parties are entitled to? 8. The relationship between the parties which is not in dispute are as follows: * Mariyayee Ammal and her husband Vadivel had two sons viz., Chellamuthu and Muthukaruppan and a daughter viz.,Thangaponnammal; * Chellamuthu had a son by name Shanmugam; * The first defendant is the wife of the said Shanmugam and they had a daughter by name Sasikala - 2nd defendant and a son by name Sathishkumar - 3rd defendant; * Muthukaruppan and his wife Dhanakodi had two sons viz.,Balasubramanian – plaintiff herein and Ramachandran, at the time of the settlement executed by Mariyayee Ammal on 23.01.1961; * Thangaponnammal and her husband Maruthamuthu had no issues; * Muthukaruppan and Dhanakodi in addition to the two sons mentioned in the settlement deed, dated 23.01.1961, they had one more son Thusinamoorthy and two daughters viz., M.Saroja and M.Mahalakshmi. 9. Admittedly, the suit property was originally owned by Mariyayee Ammal. The said Mariyayee Ammal had executed a gift settlement deed dated 23.01.1961 under Ex.A.2 in favour of her daughter Thangaponnammal, whereunder absolute right over the property was not given to the said Thangaponnammal. But on the other hand, the said Mariyayee Ammal had settled her property in favour of her grandsons already born and to be born through her daughter Thangaponnammal. It is pertinent to note that the plaintiff as well as the defendants by relying on the recitals of Ex.A.2 settlement deed are claiming major share in their favour. 10. The main defence of the defendants is that though the said Thangaponnammal had no issues, she had adopted her brother's daughter-in-law Saroja – first defendant herein. It is pertinent to note that the plaintiff as well as the defendants by relying on the recitals of Ex.A.2 settlement deed are claiming major share in their favour. 10. The main defence of the defendants is that though the said Thangaponnammal had no issues, she had adopted her brother's daughter-in-law Saroja – first defendant herein. According to the defendants, Thangaponnamal along with her brother's son Shanmugam had executed a settlement deed dated 13.05.1993 under Ex.A.5 (Ex.B.1) in favour of the defendants and in the settlement deed, Thangaponnammal has referred the first defendant as her adopted daughter. But the learned Counsel for the plaintiff would strongly contend that the very recitals of Ex.A.2 Settlement deed would go to show that the settlor Mariyayee Ammal was only referring a natural son or daughter to be born to Thangaponnammaland and not to the adopted son or daughter. It is necessary to refer the recitals of Ex.A.2 Settlement deed herein for better appreciation: OTHER LANGUAGE 11. The learned Counsel for the defendants has relied on the judgment of the Hon'ble Supreme Court in Diyyala Gopala Krishna Murhty Vs.Pullagura Dhanalakshamma and Others reported in (2010)15 Supreme Court Cases 125, and argued that the adopted son is exactly on the same legal footing as a natural son and the relevant paragraphs are extracted hereunder: “4. During the pendency of the appeal filed by the defendants before the first appellate Court, Savitramma died and the appellant herein had filed a substitution application claiming to be her adopted son. The claim of the petitioner in the substitution application to be the adopted son of Savitramma was denied by the defendants. The first appellate Court by an order dated 16.11.1987 allowed the substitution application of the appellant but finally came to the conclusion that he was not entitled to manage the property or perform pooja because he was not the natural son of Savitramma. The first appellate court held that the word “issue” in the will would not include an adopted son. That view of the first appellate court has been upheld by the High Court. Hence, the present appeal. 5. The first appellate court held that the word “issue” in the will would not include an adopted son. That view of the first appellate court has been upheld by the High Court. Hence, the present appeal. 5. In Hindu Law, an adopted son is exactly on the same legal footing as a natural son but with one distinctions, namely, that for him the prohibited degrees of relationship for the purposes of marriage are on both sides, namely, his natural family as well as his adopted family. In all other respects an adopted son is exactly on the same footing as a natural son. Hence, we cannot agree with the view of the first appellate Court and the High Court that an adopted son cannot be treated to be the natural son or issue.” 12. In the above decision, it has been held that the word “issue” in the Will would also include the adopted son. But in the present case, as already pointed out, the settlor has specifically referred about the natural child to be born to Thangaponnammal by referring the words OTHER LANUAGE. Moreover, except the averments shown in Ex.B.1 settlement deed, the defendants have not produced any iota of evidence to prove their case of adoption. Even assuming for arguments sake, that the first defendant is the adopted daughter of Thangaponnammal, as per the specific intention of the settlor shown in the settlement deed, the first defendant cannot claim any share in the property, on the ground of being a adopted daughter. 13. The learned trial Judge, after referring to the recitals in Ex.A.2 settlement deed, has interpreted in such a way, has specifically observed that the intention of the testator is very much clear that she is intending to give one share to Shanmugam, one share to Balasubramanian and one share to Ramachandran even in the event of Thangaponnammal did not give birth to any child and in case if she delivers a baby, then that child will get one share and the other grandsons viz., Shanmugam, Balasubramanian and Ramachandran will get two shares and that the intention of the testator is to give a share each of her grandsons and the testator has not granted or divided the share in accordance to the number of sons born to her, but according to the number of grandsons born to her children. 14. 14. As rightly contended by the learned Counsel for the defendants, it is evident from the recitals of the settlement deed, above referred, that in the first portion, the settlor has specifically observed that the child to be born to Thangaponnammal will get one share and the minor sons Shanmugam and the sons of Muthukaruppan and Subramanian and the unnamed male child will get two shares, which would imply that the settlor was referring to three branches relating to his two sons and the third branch relating to her daughter Thangaponnammal. Moreoverin the next recitals, the settlor has specifically observed that in case, if Thangaponnammal is not having any child, then all the three minor sons referred above will get properties on the basis of inheritance. The inheritance referred would only mean that the descendants of her two sons named in the document will get the property. Considering the above, the finding of the trial Court that Shanmugam, son of Chellamuthu and Balasubramanian (plaintiff) and Ramachandran – sons of Muthukaruppan are entitled to 1/3 share each is not in tune with the recitals of the settlement deed and is not in accordance with law of inheritance. 15. As already pointed out, Thangaponnammal along with her brother's son Shanmugam have executed Ex.A.5(Ex.B.1) settlement deed dated 13.05.1993 and that subsequently she had cancelled the same vide document dated 01.12.1987 under Ex.A.4. The learned Counsel for the plaintiff would submit that Thangaponnammal being the life estate holder, has no right to execute the settlement deed in favour of the defendants. In Ex.A.2 settlement deed, the following recitals assume importance; OTHER LANGUAGE 16. The learned Counsel for the defendants have attempted to canvass an argument that the restricted right obtained under Ex.A.2 got enlarged and the said Thangaponnammal became the absolute owner of the property by virtue of Section 14(1) of the Hindu Succession Act. The main question arose is whether the provision of Section 14(1) or the provision of Section 14(2) of the Hindu Succession Act would apply to the settlement made in favour of Thangaponnammal and the same would depend upon the question whether the settle or a person who had received a right, whether the settle had any right to claim maintenance or whether he had any pre-existing right. In Hindu Law, a father is bound to maintain his unmarried daughters, but on the other hand, on the date of death of father, they are entitled to be maintained out of his estate and that after her marriage, her right is only against her husband and after his death, out of estate left by him. 17. The Hon'ble Supreme Court in Bhura and Others VS. Kashi Ram reported in 1994(2) L.W. 1, has held as follows: “The limited estate conferred upon Sarjabai by the will (WP-4) could not even be enlarged into an absolute estate under the Hindu Succession Act, 1956, even though she was possessed of that property at the time of the coming into force of the Hindu Succession Act, 1956. Section 14(2) of the Act mandates that nothing contained in sub-section (1) of Section 14 of the Hindu Succession Act, 1956 shall apply to any property acquired by way of gift or under a will or by any other instrument prescribing a restricted right in such property. In view of our finding that the will (Ex. P-4) itself prescribed a restricted right of life-estate in the property in favour of Sarjabai, that estate could not be enlarged into an absolute estate in view of the express provisions of the Hindu Succession Act, 1956.” 18. In Thota Sesharathamma and another Vs. Thota Manikyamma (dead) by LRs and Others reported in 1992(1) LW 601, the Hon'ble Apex Court has held as follows: “In a long series 'of cases, the Supreme Court has taken a consistent view that Sec. 14(2) of the Act is in the nature of a proviso or an exception to Sec. 14 and comes into operation only if acquisition in any of the methods indicated therein is made for the first time without there being any pre-existing right in the female Hindu to the property. If the case falls under the provisions of Sec. 14(1)of the Act then the female Hindu shall be held to be full owner of the property and subsection (2) of Section 14 will only apply where the property is acquired without there being any pre-existing right of the female Hindu in such property. Thus we affirm and reiterate that sub-section (2) of Sec. 14 will be construed more in the nature of a proviso or an exception to sub-s. (1) of Sec. 14 of the Act. Thus we affirm and reiterate that sub-section (2) of Sec. 14 will be construed more in the nature of a proviso or an exception to sub-s. (1) of Sec. 14 of the Act. This view lends support to the object of the section which was to remove the disability on women imposed by law to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society.” 19. In the case on hand, admittedly, Mariyayee Ammal had executed a settlement deed in favour of her daughter and whereunder one share was given to her child if any born subsequently and in case of not having any child, she was given life estate. Since Thangaponnammal had already married, the question of maintaining her by her mother does not arise. As rightly contended by the learned Counsel for the plaintiff, Ex.A.2 settlement deed does not recognize any pre-existing right in favour of Thangaponnammal. 20. Considering the above and also the legal position above referred, the question of invoking Section 14(1) of the Hindu Succession Act does not arise at all. Consequently, this Court has no hesitation to hold that Thangaponnammal is only having life estate interest and as such she has no right to execute the settlement deed settling the property in favour of the defendants. As already pointed out, Thangaponnammal herself had revoked settlement deed executed under Ex.B.1 21. It is pertinent to note that the plaintiff's brother Ramachandran had died while Thangaponnammal was very much alive. But at this juncture, it is necessary to refer the judgment of the Hon'ble Supreme Court in A.Sreenivasa Pai and another Vs.Saraswathi Ammalalias G.Kamala Bai reported in (1985)4 SCC 85 and the relevant passage is extracted hereunder: “The document read as a whole leaves no doubt in our mind that V.Sreenivasa Pai was given under it the absolute estate in the properties subject to the life estate created in favour of Padmavathi Ammal. The object of executing the settlement deed was obviously to confer the benefit on the family of V.Sreenivasa Pai which was in distress and not that Padmavathi Ammal should alone be benefited. The document conferred, as observed by the High Court, a vested interest in favour of V.Sreenivasa Pai but his right to enjoy the property only was however postponed to the death of Padmavathi Ammal. The document conferred, as observed by the High Court, a vested interest in favour of V.Sreenivasa Pai but his right to enjoy the property only was however postponed to the death of Padmavathi Ammal. Since V.Sreenivasa Pai had acquired a vested right in the properties on December 12, 1932, i.e., the date of the settlement deed it could not be defeated by his death before he obtained possession. His widow Saraswathi Ammal alias G.Kamala Bai being his sole heir was, therefore, entitled to the said properties on the termination of the life estate of Padmavathi Ammal. Our view is also in conformity with the rule of construction adopted by this Court in Ramachandra Shenoy & Anr. v. Mrs. Hilda Brite & Ors., [1964] 2 S.C.R. 722, at pages 735-736 where this Court has observed thus : "It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. It is for this reason that where there is a bequest to A even though it be in terms apparently absolute followed by a gift of the same to B absolutely "on" or "after" or "at" A's death, A is prima facie held to take a life interest and B an interest in remainder, the apparently absolute interest of A being cut down to accommodate the interest created in favour of B." 22. Considering the above, it is very much clear that Ramachandran had acquired a vested right in the properties on 23.01.1961, the date of settlement deed and his right to enjoy the property alone was postponed till the death of the life estate holder ie., Thangaponnammal and that therefore, the vested right already acquired by Ramachandran could not be defeated by his death before obtaining the possession, as the life estate holder was alive. Hence, after the death of Thangaponnammal, the vested right of Ramachandran would be taken by his legal heirs. Hence, after the death of Thangaponnammal, the vested right of Ramachandran would be taken by his legal heirs. As already pointed out, he died as a bachelor and he was survived by his mother and two brothers including the plaintiff and two sisters. But admittedly, the plaintiff has not impleaded his mother, brother and sisters. 23. Considering the above, the finding of the trial Court that the plaintiff, apart from his owning of 1/3rd share, is also entitled to succeed to the share of 1/3 belonging to his deceased brother Ramachandran, is not proper and not in accordance with law. In view of findings arrived at, Shanmugam is entitled to get ½ share and the defendants 1 to 3 being his wife and children are entitled to get the said ½ share in the suit properties and the plaintiff being named in the settlement deed is entitled to get 1/4th share and the dispute is now with respect to 1/4th share owned by the plaintiff's brother Ramachandran. It is not known as to whether the said Ramachandran had died intestate or had died leaving behind any testamentary instrument. 24. Considering the above, this Court is of the view that the matter is to be remitted back to the trial Court for the limited purpose of deciding the share belonging to the deceased Ramachandran and for that purpose, the plaintiff is directed to take steps for impleading his mother, brother and sisters – legal heirs of the deceased Ramachandran. If the mother of the plaintiff and Ramachandran is still alive, then she being the Class-I heir is entitled to get the share of Ramachandran and in case, if she is not alive and in the absence of any testamentary instrument, Ramachandran's share has to be devolved on his brothers and sisters including the plaintiff. 25. In view of the above, this Court concludes that the Appeal Suit is to be allowed partly and the case relating to the share of Ramachandran is to be remitted back to the trial Court. Considering the above facts and circumstances, the parties shall be directed to bear their own costs. 26. In the result, the Appeal Suit is partly allowed and the impugned Judgment and Decree granting preliminary decree for dividing the suit property into three shares and allotment of two shares to the plaintiff is set aside. Considering the above facts and circumstances, the parties shall be directed to bear their own costs. 26. In the result, the Appeal Suit is partly allowed and the impugned Judgment and Decree granting preliminary decree for dividing the suit property into three shares and allotment of two shares to the plaintiff is set aside. The preliminary decree is passed declaring that the plaintiff is entitled to get 1/4th share and the defendants 1 to 3 are entitled to get ½ share in the suit properties. The case relating to the share of the deceased Ramachandran is ordered to be remitted back to the trial Court. The plaintiff is directed to take necessary steps for the impleadment of the other legal heirs of the deceased Ramachandran within 15 days from the date of receipt of a copy of the judgment and in the case of plaintiff's failure to take steps, the defendants are at liberty to take necessary steps for impleadment and that in that event, the plaintiff is not entitled to apply for final decree without permission of this Court. After impleadment, the trial Court is directed to afford an opportunity to the newly impleaded parties to file their written statement and also the other parties to file their additional pleadings and to try the said issue relating to the 1/4 share of the deceased Ramachandran and dispose of the case within a period of one month, after the amendment of the plaint. The parties are directed to bear their own costs.