In the High Court of Judicature at Madras Dated: 06.06.2011 Coram: The Honourable Mr. Justice R.SUBBIAH Second Appeal No.829 of 1997 Kadirvel ..Appellant/Plaintiff ..vs.. 1. Krishnaswamy 2. Meenakshi 3. Arulprakasham 4. Kandasamy (died) 5. Sellamuthu 6. Nallusamy 7. Muthulakshmi 8. Thirunavukkarasu (Respondents 6 to 8 brought on record as LRs.of the deceased R4 vide order of Court dated 06.04.2011 made in CMP.No. 38 of 2011) ..Respondents/Defendants Second Appeal under section 100 of Civil Procedure Code filed, against the judgment and decree dated 11.11.1994 made in A.S.No.129 of 1993 on the file of II Additional District Court, Trichy, confirming the judgment and decree dated 30.03.1993 made in O.S.No.17 of 1989 on the file of Sub Court, Ariyalur. For Appellant : Mr.S.Parthasarathy, Senior Counsel for M/s.Sarvabhauman Associates For Respondents : Mr.M.V.Krishnan JUDGMENT The unsuccessful plaintiff before the courts below has filed the second appeal aggrieved over the judgment and decree passed by the learned II Additional District Judge, Trichirapalli in A.S.No.129 of 1993, whereby the dismissal of the suit was confirmed. 2. The case of the appellant, in brief, is as follows: https://hcservices.ecourts.gov.in/hcservices/ The appellant is the plaintiff and respondents 1 to 5 are the defendants before the trial court. The plaintiff, Kadirvel filed a suit in O.S.No.17 of 1989 on the file of Sub Court, Ariyalur, for a declaration of his right and title over the suit properties and for recovery of possession of the same from the defendants and also for future mesne profits. The parties are related as under: Nallappa Udayar = Chellammal | | -------------------------------------------------------------------- | | | | | | | | | | Karuppu Udayar Muthammal Son died Sivabakkiam Thangam (son) (daughter) unmarried (daughter) (daughter) = = Meenakshi Ammal Nallathambi | | Manickathammal=Duraisamy=2nd wife (died) | | Sellamuthu (D5) The suit properties originally belonged to one Nallappa Udayar and his wife Chellammal and they have two sons and three daughters, viz., Karuppu Udayar, Muthammal (mother of the plaintiff), another son (died unmarried), Sivabakkiam and Thangam. Karuppu Udayar and his wife Meenakshi Ammal had one daughter, by name, Manickathammal. One Nallathambi is the husband of Muthammal and they had one son Kadirvel (the plaintiff). Nallappa Udayar executed a Will on 25.01.1940 in favour of the plaintiff and the said Manickathammal, bequeathing the properties mentioned as item No.1 in the said Will and as per the terms of the Will, the plaintiff's mother Muthammal and Meenakshi Ammal (the mother of Manickathammal) were appointed as guardians of their respective children and were directed to perform the marriage between the plaintiff and Manickathammal and to enjoy the properties mentioned as first item in the Will till the minors attain majority and hand over the properties to them after attaining majority and in the event of Meenakshi Ammal refusing to give her daughter in marriage to the plaintiff, Manickathammal should lose the properties bequeathed under the Will. On the contrary to the wishes of Nallappa Udayar, Manickathammal did not marry the plaintiff and she married another person, by name, Duraisamy Udayar and as such, under the Will, Manickathammal did not get any benefit. In the meantime Nallappa Udayar died in 1942. Hence, the plaintiff, through his mother Muthammal as guardian, filed a suit in O.S.No.321 of 1946 before the District Munsif Court, Ariyalur for declaration of his right over the suit properties, for recovery of possession and future mesne profits; but the same was dismissed on 15.12.1947. Aggrieved over the same, the https://hcservices.ecourts.gov.in/hcservices/ plaintiff filed an appeal in A.S.No.661 of 1948 before the Sub Court, Trichirapalli and the appeal was also dismissed. 3. It is the further case of the plaintiff that during the pendency of the appeal, the said Manickathammal died and her husband Duraisamy was added as a party. The plaintiff filed a second appeal in S.A.No.205 of 1951 before this Court and this Court gave a finding that the mother of the plaintiff Muthammal and Meenakshi Ammal, the mother of Manickathammal, should enjoy the properties till their lifetime and thereafter, the properties should revert back to the heirs of the original testator. Accordingly, Muthammal and Meenakshi Ammal were enjoying their respective share of the properties and on 12.10.1985 the said Meenakshi Ammal died. Thereafter, Muthammal acquired all the properties and obtained absolute right and title over the same as heir at law to the original testator and she took possession of the suit properties. Muthammal executed a registered settlement deed in favour of the plaintiff in respect of the suit properties on 10.01.1986 and in pursuance of the same, except the plaintiff, no other person has right over the suit properties. During the life time of Meenakshi Ammal, she sold certain portions of the suit properties to defendants 1 to 4 and executed a Will in favour of the 5th defendant, her grandson. When Meenakshi Ammal had no right and title to the suit properties, she cannot execute any sale deed or Will in respect of the suit properties in favour of the defendants and they were not valid and binding on the plaintiff, but defendants 1 to 4 (the purchasers of certain parts of properties from Meenakshi Ammal) and the 5th defendant took possession of the suit properties from him forcibly on 10.12.1986. Hence, the plaintiff filed the suit. 4. Defendants 1 to 4 contested the suit by filing a written statement and contended that Meenakshi Ammal is the absolute owner of the suit properties and the sale deedss executed by her in favour of these defendants are valid under law and even in the judgment dated 08.02.1955 in S.A.No.205 of 1951, it has been stated that the mother of the plaintiff Muthammal and Meenakshi Ammal divided the properties among themselves and enjoying their respective shares. Therefore, the suit properties were allotted to the share of Meenakshi Ammal. Further, after the Hindu Succession Act came into force, Meenakshi Ammal had become the absolute owner of the suit properties. Even Muthammal had sold some properties allotted to her share. The mother of the plaintiff has no right to execute any settlement deed in respect of the properties enjoyed by Meenakshi Ammal. 5. The 5th defendant, the grandson of Meenakshi Ammal, filed a written statement supporting the averments made in the written statement filed by defendants 1 to 4. 6. On the said pleadings, the trial court framed necessary issues and on the side of the plaintiff, he examined himself as P.W.1 besides https://hcservices.ecourts.gov.in/hcservices/ examining one Raju as P.W.2 and marked Exs.A-1 to A-5 and on the side of the defendants, D.Ws.1 to 5 were examined and Exs.B-1 to B-13 were marked. The trial court, after considering the entire evidence on record, both oral and documentary, had dismissed the suit. Against which, the plaintiff filed A.S.No.129 of 1993 on the file of II Additional District Court, Trichirapalli, wherein the appeal was dismissed by confirming the judgment and decree of the trial court. Being aggrieved, the plaintiff has filed the present second appeal. During the pendency of the second appeal, the 4th defendant died and his legal representatives were brought on record as respondents 6 to 8. 7. At the time of admission of the second appeal, this Court has framed the following substantial questions of law for consideration: Whether, in law, the courts below have correctly construed Ex.A-1 Will giving due regard to the intention of the testator ? 8. Heard the learned counsel for the parties and perused the materials available on record. 9. It is the submission of the learned Senior Counsel appearing on behalf of the appellant/plaintiff that under the Will dated 25.01.1940, only the limited interest was given to Meenakshi Ammal and Muthammal in respect of the properties mentioned as item No.1 in the said Will. It is the specific condition in the said Will that the appellant and Manickathammal should marry each other and on such marriage, the said item No.1 properties should go to them. In the event of failure of marriage as per the Will, the said Manickathammal could not get any property and the property should revert back to the heirs of the original testator. In the instant case, the marriage between Manickathammal and the appellant did not take place and hence, the mother of the appellant Muthammal, as the legal heir of testator, was entitled to the same. Hence, in the year 1946 itself, the plaintiff filed the suit in O.S.321 of 1946, but the same was dismissed and the appeal filed against which was also dismissed. However, in the second appeal in S.A.No.205 of 1951, this Court has observed that since Muthammal and Meenakshi Ammal have partitioned and enjoyed the properties, both of them are entitled to enjoy their respective share of the properties till their death. Hence, after the death of Meenakshi Ammal, the present suit has been filed by the plaintiff as per the judgment dated 08.02.1955 delivered in S.A.205 of 1951 stating that after the death of Meenakshi Ammal, the property should go to Muthammal, the legal heir of Nallappa Udayar; but Meenakshi Ammal, contrary to the observation made in the said judgment, sold the properties to defendants 1 to 4 and also executed a Will in favour of the 5th defendant, her grandson. The courts below, without looking into these aspects, came to the conclusion that as per section 14(1) of the Hindu Succession Act, the limited right of Meenakshi Ammal over the suit https://hcservices.ecourts.gov.in/hcservices/ properties, enlarged as absolute right since she was in possession of the property at the time of enforcement of the said Act. 10. In this regard, by inviting the attention of this Court to the provisions of the Hindu Succession Act, the learned senior counsel for the appellant submitted that if the property acquired by way of gift under the Will or by any instrument, then the right of the female Hindu will not enlarge as absolute right, as per section 14(2) of the Hindu Succession Act; but, in the instant case, Meenakshi Ammal and Muthammal got their respective shares through the Will executed by Nallappa Udayar dated 25.01.1940 Ex.A-1 and even in the judgment rendered in the second appeal, this Court has observed that Muthammal and Meenakshi Ammal were in enjoyment of their respective shares by dividing the properties and they are entitled to enjoy the same till their death. The said observation was made only interpreting the Will dated 25.01.1940. Since Meenakshi Ammal acquired the property through the Will, section 14(1) of the said Act cannot be made applicable to the facts of the case. Therefore, it is apparent that the enjoyment of Meenakshi Ammal is only pursuant to the Will Ex.A-1 and after her death, naturally the legal heir of Nallappa Udayar was entitled to the property. In support of his contentions, the learned senior counsel has relied upon the judgment reported in SADHU SINGH ..vs.. GURDWARA SAHIB NARIKE AND OTHERS ((2006) 8 SCC 75). 11. Countering the said submissions, the learned counsel for the respondents submitted that only under the Will Ex.A-1, limited interest was given to Meenakshi Ammal and Muthammal till Manickathammal and the appellant attain majority and the performance of their marriage. But the marriage did not take place. Therefore, they lost the interest over the suit properties as early as on the date of marriage of Manickathammal to another person, by name, Duraisamy Udayar. But, Meenakshi Ammal allowed to continue in the properties from 1940 till 1985 and, therefore, she prescribed title by way of adverse possession. Moreover, the judgment in S.A.No.205 of 1951 was delivered on 08.02.1955 i.e. before the Hindu Succession Act came into force. Under such circumstances, the submission made by the learned senior counsel for the appellant that section 14(1) is not applicable to the case cannot be accepted. The learned counsel further submitted that the suit properties were sold by Meenakshi Ammal between 1983 and 1985, but no prayer was made by the appellant to set aside the sale deeds as well as the Will executed by her in favour of defendants 1 to 4 and the 5th defendant, her grandson. It is further submitted that Muthammal, who was in enjoyment of her share, had also sold some properties in her share to third parties. Therefore, her son, the appellant/plaintiff is estopped from questioning the sale made by Meenakshi Ammal. Under such circumstances, the appellant is not entitled to the reliefs asked for and the second appeal is liable to be set aside. In support of the contentions, the learned counsel has relied upon the judgment reported in SRI RAMAKRISHNA MUTT REP.BY MANAGER ..vs..MAHESWARAN AND OTHERS ((2011) 1 SCC 68. https://hcservices.ecourts.gov.in/hcservices/ 12. In view of the said submissions by both parties, the only question that arise for consideration is, whether the interest of Meenakshi Ammal over the suit properties enlarged as absolute right, as per section 14(1) of the Hindu Succession Act ? 13. It is the submission of the learned senior counsel for the appellant that since Meenakshi Ammal was in enjoyment of the properties pursuant to the Will Ex.A-1 executed by her father-in-law Nallappa Udayar dated 25.01.1940, section 14(1) of the Hindu Succession Act cannot be made applicable to this case. It would be appropriate to extract section 14(1), which 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". 14. It is, no doubt, the appellant's mother Muthammal and Meenakshi Ammal were enjoying the properties pursuant to the Will dated 25.01.1940. In the year 1955, this Court in S.A.No.205 of 1951, which has arisen out of the suit filed by the appellant, has observed that Muthammal and Meenakshi Ammal have partitioned the properties and both parties were enjoying their respective shares, they are entitled to enjoy the same till their death. The relevant portion of the judgment reads as follows: "As I read the Will, it seems to me that the intention of the testator was that his daughter and daughter-in-law should enjoy the property until their children become majors and get married. If by the happening of a supervening contingency that becomes impossible then the two ladies will be entitled to a life estate. I am told that between themselves they have partitioned the property, and such being the case, each one of them is entitled to enjoy her share of the property till she dies. Then the property will revert back to the heirs of the original testator". from the said judgment, it could be understood that even in the year 1955, by dividing the properties, Meenakshi Ammal and Muthammal were enjoying the same as their separate properties. It is to be noted that the judgment in the second appeal was delivered in the year 1955 and the Hindu Succession Act came into force in the year 1956. On the date when the Act came into force, Meenakshi Ammal was enjoying the suit properties separately. Moreover, it was admitted by P.W.1 in his cross examination that his mother had sold her share of the property to third parties, as follows: @//// th/rh/M/1f;F 2 tUlk; fHpj;J Kj;jk;khSk; kPdhl;rpak;khSk; brhj;ij gphpj;J mDgtpj;J te;jhh;fs;/ kPdhl;rpak;khs; jhd; mDgtpj;j brhj;Jf;F jPh;it https://hcservices.ecourts.gov.in/hcservices/ brYj;jp te;jhh;/ Kj;jk;khs; jd; ghf brhj;ij tpw;W tpl;lhh;///@/ Therefore, it is evident that the recitals mentioned in the Will were not acted upon by either of the parties and they were enjoying their respective share of the properties as their separate and independent properties and that is why, Muthammal had sold her share of the properties to third parties. Therefore, it is clear that the Will has not been acted upon. Meenakshi Ammal, even on the date of which the Act came into force, was enjoying her share of the properties as her separate and independent properties. Therefore, I am of the opinion that as per section 14(1), the right over the suit properties of Meenakshi Ammal enlarged as her absolute right. Therefore, the judgment relied on by the appellant reported in (2006)8 SCC 75 is not applicable to the facts of this case. 15. An useful reference could be placed on the judgment relied on by the respondents in (2011) 1 SCC 68 and the relevant paragraphs read thus: "10. The position thus becomes clear that Kumudammal was given the possession of this property and was also given the right to enjoy the property by collecting rents of the same right from 4.3.1939 even during the lifetime of her husband Kannabiran Pillai who was only managing the properties on her behalf. Thus, these documents will clearly go to prove the possession of Kumudammal right from 4.3.1939 and therefore, the subsequent death of her husband Kannabiran on 31.12.1956 would be of no consequence. In short, Kumudammal was in possession of the property in pursuance of her pre-existing right of maintenance on 17.6.1956, the date on which the Hindu Succession Act came into force. That would clearly clinch the issue in favour of the original defendants, whose case is that thereby, Kumudammal's right of life interest ripened into full ownership. 11. Shri Sanghi, leanred Senior Counsel appearing on behalf of the appellant, in his usual persuasive style, pointed out that the law laid down in V.Tulasamma v. Sesha Reddy ((1977) 3 SCC 99) has been further explained in Sadhu Singh .vs. Gurdwara Sahib Narike ((2006) 8 SCC 75), where this Court has held to apply the law laid down in V.Tulasamma v. Sesha Reddy ((1977) 3 SCC 99), it must be shown that the widow or the lady concerned, as the case may be, should be in possession of the property on the date when the Hindu Succession Act came into force without going into the controversy as to whether the rule in V.Tulasamma v. Sesha Reddy ((1977) 3 SCC 99) depends upon such possession on the date when the said Act came into force. It is clear in this case that Kumudammal was in such possession of the property on the date when the Hindu Succession Act came into force". https://hcservices.ecourts.gov.in/hcservices/ The principles enunciated in the said decision are applicable to the case on hand in all fours. Therefore, in my opinion, Meenakshi Ammal's right of life interest had enlarged into full ownership as early as 1956. The Will executed by Nallappa Udayar has never been acted upon by either of the parties and even in the Will, there is no provision as to who should take the properties in case of non-performance of marriage between the appellant and Manickathammal. Further more, as submitted by the learned counsel for the respondents, when Meenakshi Ammal had sold the properties to third parties, no prayer was made by the appellant to set aside the sale deeds as well as the Will and on this ground also, the appellant is not entitled to get the reliefs asked for. The courts below by deeply analysing the facts and evidence both oral and documentary, have dismissed the suit and I see no infirmity in the said concurrent finding and under such circumstances, I am of the view that no substantial question of law is involved in the appeal and the second appeal is liable to be dismissed. For the reasons stated above, the second appeal fails and is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar gl To 1. The II Additional District Judge, Trichirapalli. 2. The Subordinate Judge, Ariyalur. Copy to: The Section Officer, V.R.Section, High Court,Madras. +1cc to M/s. Sarvabhauman Associates Sr 32082 +1cc to Mr.M.V.Krishnan, Advocate Sr 32015 TS(CO) km/21.6. S.A.No.829 of 1997 https://hcservices.ecourts.gov.in/hcservices/