?BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT %Dated: 02.11.2018 Reserved on : 25.10.2018 Delivered on : 02 .11.2018 *CORAM THE HONOURABLE MR. JUSTICE C.V.KARTHIKEYAN +A.S.No.1070 of 1995 and C.M.P.No.14521 of 1995 #1.Radha(died) 2.Chandra(died) 3.U.Balasubramaniam 4.B.Rajesh 5.K.Sambandam 6.S.Ramesh .. Appellants (appellants 3 and 4 brought on record as legal heirs of the deceased second appellants vide order dated 29.12.2003 made in C.M.P.No.19348 of 2002) (appellants 5 and 6 are impleaded as legal heirs of the deceased first appellant vide order dated 02.02.2010 and made in M.P(MD).No.1 and 2 of 2002 in A.S.No.1070 of 1995) Vs. $1.Shantha Ammal(died) 2.Panneerselvam 3.Pasupathi 4.Rajam 5.Chidambaram Pillai (died) 6.Narayani Ammal 7.Raja 8.Selvamani 9.Sasikala 10.Rathinakumar 11.Kunjammal(died) 12.R.Indhirani .. Respondents (respondents 8 to 11 brought on record as legal heirs of deceased R5 as per order dated 25.03.1998 in CMP.No.13418 of 1997) (respondents 3,4,8 to 10 are recorded as legal heirs of the deceased R11 vide order dated 22.08.2014 and made in M.P(MD).No.1 of 2011 in A.S.No.1070 of 1995) (memo filed in OSR.440 dated 24.01.2017 to the effect that R1 died is recorded and R2 is recognized as legal heir of deceased R1 vide order dated 12.04.2017 made in A.S.No.1070 of 1995) Prayer : Appeal is filed under Section 96 of the Civil Procedure Code, against the judgment and decree of the learned Subordinate Judge of Kumbakonam dated 21.07.1995 made in O.S.No.14 of 1988. !For Appellants : Mr.M.P.Senthil ^For R~2 : Mr.T.Antony Arulraj For R~3 : No appearance For R4, R6 to R10 and R12 : No appearance For R1, R5 and R11 : Died :JUDGMENT The plaintiffs in O.S.No.14 of 1988 on the file of the Subordinate Court, Kumbakonam, are the appellants herein. 2. O.S.No.14 of 1988 had been filed by two plaintiffs, Radha and Chandra who are both sisters. The suit had been filed seeking a declaration that the plaintiffs are the absolute owners of the suit properties and for consequential relief directing the first defendant to put the plaintiffs in possession of the suit -A- schedule properties, directing the second defendant to put the plaintiffs in possession of the suit -B- schedule properties, directing the defendants 3 and 6 to put the plaintiffs in possession of the -C- schedule properties and directing the defendants 3, 4, 9 and 10 to put the plaintiffs in possession of the -D- schedule properties and also grant past and future profits and also costs of the suit. 3. This suit came up for consideration before the learned Subordinate Judge, Kumbakonam. By judgment dated 21.07.1995, the suit was dismissed. Challenging the same, the plaintiffs have filed the present First Appeal. 4. Pending the appeal, both the plaintiffs died and their legal representatives were brought on record as appellants 3 to 6. Pending the appeal, the fifth respondent died and his legal representatives were brought on record as respondents 8 to 11. Thereafter, the 11th respondent also died and a memo was filed that her legal representatives were already on record as respondents 3, 4, 8 to 10. The 12th respondent was also brought on record also as another legal heir of the 11th respondent. 5. The said suit had been filed by two plaintiffs/sisters, Radha and Chandra seeking as stated above the declaration of title and recovery of possession of the suit ?A? to ?D? schedule properties. They were daughters of Late Chinnappa Pillai. He was the absolute owner of the suit properties. He died intestate on 16.04.1976 at Panthanalloor Village, Kumbakonam. His wife had predeceased him. The first defendant Shantha Ammal was his concubine. The second defendant Panneerselvam was her son. The defendants 3 and 4 were children of Mani Pillai the first cousin of Chinnappa Pillai. He died before the filing of this suit. The fifth defendant was a satellite to the family of Mani Pillai. The sixth defendant was the brother~in~law of Mani Pillai. The plaintiffs claimed that the defendants 1 to 6 set up a will, as if it had been executed by Chinnappa Pillai on 30.03.1976. In the plaint, they claimed that Chinnappa Pillai was suffering physically and mentally at the time of his death. He was under the complete control of the first defendant. He was not in a position to understand anything. It was stated that taking advantage of his physical and mental condition, the defendants 1 to 6 had brought about the will, dated 30.03.1976. The plaintiffs denied that the will was a true and genuine document. After the death of the Chinnappa Pillai, the plaintiffs and one Sambandam Pillai filed O.S.No.57 of 1976 before the Subordinate Court, Kumbakonam, against the same defendants seeking accounts of the properties left behind by Chinnappa Pillai. That said suit was dismissed as not maintainable. Thereafter, the plaintiffs and the said Sambandam Pillai filed A.S.No.1127 of 1980 before the High Court, Madras. In the said first appeal, by order dated 02.03.1987 in C.M.P.No.2838 of 1987, the plaintiffs were given liberty to withdraw O.S.No.57 of 1976 and file a fresh suit seeking appropriate reliefs. It was under these circumstances that the suit had been filed seeking declaration of title and recovery of possession as stated above and also for payment of past and future profits. 6. The first defendant filed written statement. This written statement was adopted by the defendants 2 to 6. In the written statement, it was stated that the properties had been bequeathed to the defendants 2, 3 and 4 by a will and they claimed that the will was true, valid and binding on the plaintiffs. They claimed that the said Chinnappa Pillai was in complete control of his mental senses. It was also stated that the plaintiffs had filed several suits against him and he had contested those suits. It was stated that he was therefore opposed to the conduct of his daughters, who are the plaintiffs herein. They further stated that the plaintiffs had been settled with properties and therefore they cannot challenge the will. It was stated that the first defendant was the concubine of Chinnappa Pillai and the second defendant Panneerselvam was born to them. It was stated that the will had been executed in accordance with due procedure and was also attested. It was stated that the suit is not maintainable. It was also stated that the suit is barred by the law of limitation and also barred by res judicata. It was, therefore, stated that the suit should be dismissed. 7. This suit came up for consideration before the learned Subordinate Judge, Kumbakonam and on the basis of the pleadings, the learned Subordinate Judge framed the following issues for consideration:~ 1.Whether the plaintiffs are the owners of the suit properties and whether declaration of title can be granted in their favour? 2.Whether the Will executed by Chinnappa Pillai was executed when he was in disposing sound and deposing state of mind? 3.Whether the Will was brought about by undue influence? 4.Whether the deceased Chinnappa Pillai had right to deal with the Dharmam properties. 5.Whether the suit is barred by limitation? 6.Whether the suit is barred by res judicata? 7.Whether the suit had been correctly valued and whether the proper Court fees had been paid? 8.Whether the defendants are liable to pay past and future profits to the plaintiffs? 9.To what other reliefs of the plaintiffs are entitled to? Thereafter, the following two additional issues were framed:~ 1. Whether the suit properties in item Nos.34 and 66 have been properly described in the plaint? 2. Whether the item Nos.34 and 66 absolutely belonged to the first defendant? The learned Subordinate Judge framed the following further additional issue:~ Whether the suit is maintainable as framed? 8. During trial, the plaintiffs examined three witnesses. P.W.1, K.Sambandam, was the husband of the first plaintiff. P.W.2 was V.Govindasamy one of the witness to the will and P.W.3 was Dr.S.Ganesan, who treated Chinnappa Pillai. On the side of the defendants, three witnesses were examined. D.W.1, Santha, the first defendant, D.W.2 C.Panneer Selvam, the second defendant and D.W.3 K.Thiagaraja Pillai the other witness to the will. The plaintiffs marked Exs.A~1 to A~46 and the defendants marked Exs.B~1 to B~ 38. Among the documents marked by the plaintiffs, Ex.A1 is the birth certificate of the second defendant. Ex.A.2, Ex.A.3 and Ex.A.4 are the birth certificates of the other children of the first defendant. Ex.A5 is the judgment is O.S.No.57 of 1976 and Ex.A.6 is the order of the Madras High Court in CMP.No.2838 of 1987 in A.S.No.1127 of 1980. Ex.A.7 and Ex.A.8 and Ex.A.9 are sale deeds in the name of the first defendant executed by Chinnappa Pillai. Ex.A~10 is the settlement deed in favour of the second defendant executed by Chinnappa Pillai. Ex.A~36 is the settlement deed in favour of Savithri Ammal executed by Chinnappa Pillai. The other documents were the certified copies of the Judgments/decrees and related documents the earlier suits in O.S.No.38 of 1974, O.S.No.55 of 1974, O.S.No.56 of 1974 and O.S.No.453 of 1985. On the side of the defendants, Ex.B.8 is the marriage invitation of the first plaintiff, Ex.B.9 and Ex.B.14 are the letters written by the husband of the first plaintiff to Mani Pillai, Ex.B.29 is the gift deed in favour of the first defendant/Santha Ammal executed by Chinnappa Pillai and Ex.B.37 is the will dated 30.03.1976 executed by Chinnappa Pillai. The other documents also related to the Judgments/decrees and related documents in the suits in O.S.No.55 of 1974, O.S.No.56 of 1974 and O.S.No.38 of 1974. 9. By Judgment dated 21.07.1995, the learned Subordinate Judge first took up for consideration the issue of limitation. The learned Judge considered the order of the Madras High Court in C.M.P.No.2838 of 1987 in A.S.No.1127 of 1980, wherein the earlier suit filed by the plaintiffs in O.S.No.57 of 1976 was permitted to be withdrawn and liberty was granted to institute a fresh suit for such reliefs as considered proper. It was then observed that Chinnappa Pillai died on 16.04.1976. The will executed by him came into effect on his death. The learned Judge determined that any suit filed for properties which were the subject matter of the will should have been filed within a period of twelve years under Article 65 of the Limitation Act. The learned Judge also considered Article 58 of the Limitation Act, which provided three years time to file a suit for declaration. The learned Judge then considered the rival arguments put forth by both sides. The plaintiffs had contended that the suit will be covered by Article 65 of the Limitation Act. The defendants had contended that the suit will be governed under Article 58 of the Limitation Act. The learned Judge then examined the provision under Order 23 Rule 2 of C.P.C. He further examined whether Section 14 of the Limitation Act would be applicable. The learned Judge finally found that the suit was barred by limitation. The learned Judge then took up the issue of Court fees and the valuation of the suit. The plaintiffs had valued the suit under Sections 25~A, 44 and 22 of Tamil Nadu Court Fees and Suits Valuation Act, 1955. The learned Judge again found that the suit had not been properly valued. The learned Judge then took up the additional issue, namely, whether the suit was maintainable as framed. The learned Judge examined the evidence and the pleadings and finally stated that the suit is not maintainable. The learned Judge did not examine any other issue and dismissed the suit. Challenging that judgment, the plaintiffs had filed the present appeal. 10. As stated above, pending the appeal, both the appellants/plaintiffs died and their legal representatives had been brought on record. The first respondent/first defendant and the 11th respondent also died and 5th respondent also died and his legal representatives had also been brought on record. 11. Heard arguments advanced by Mr.M.P.Senthil, the learned counsel for the appellants and Mr.T.Antony Arulraj, learned counsel for the contesting second respondent, who was the second defendant in the suit. 12. The parties will be referred as plaintiffs and defendants for the sake of convenience. 13. Mr.M.P.Senthil, learned counsel for the plaintiffs pointed that the suit had been dismissed on the grounds of limitation, improper valuation of the suit and maintainability. It had been held that the suit should have been filed for partition and separate possession. The learned counsel stated that the suit had been filed well within the period of limitation and it would fall under Article 65 of the Limitation Act. This Court had granted permission to institute a fresh suit and that the suit had been filed immediately. The learned counsel also stated that Ex.B.37~will dated 30.03.1976 was shrouded with suspicion. It was stated that according to the evidence of P.W.3~Doctor, Chinnappa Pillai was not in good mental and physical health. The learned counsel pointed out Ex.A.2~ birth certificate of the second defendant/ Panneer Selvam, which showed the name of his father as a different person. The learned counsel stated that the first defendant /Santha Ammal exercised extreme control over Chinnappa Pillai and also stated that the will had been obtained by coercion and undue influence. It was also pointed out that under the will, the plaintiffs, who are the only children/daughters of Chinnappa Pillai, had been completely excluded. They had been allotted only 8 acres by an earlier settlement deed. Chinnappa Pillai had executed sale deeds and settlement deeds in favour of the first, second defendants. The learned counsel stated that the learned Subordinate Judge had not given findings on other substantial issues, particularly, on the proof of the will. He, therefore, stated that the judgment under appeal should be reversed. 14. On the other hand, Mr.T.Antony Arulraj, learned counsel for the contesting second respondent stated that Article 65 will be attracted only when declaration is sought on the basis of the title. In the present case, in view of the will, the plaintiffs do not have any title over the properties and consequently only Article 58 would apply. The learned counsel also stated that under Order 23 Rule 2 CPC, application of Section 14 of Limitation Act is not possible. The learned counsel stated that the suit is barred by limitation. The learned counsel also pointed out that Chinnappa Pillai had settled properties in favour of both the plaintiffs. The plaintiffs had filed three suits against Chinnappa Pillai. They also filed Execution Petitions. These proceedings ended just one month before he died. It was stated that he did not live with plaintiffs. They also did not attend his funeral. It was stated that under the strained background between the plaintiffs and Chinnappa Pillai the will had been executed out of free consent and the learned counsel, further, stated that no influence was applied on Chinnappa Pillai for executing the will. The learned counsel stated that the suit is barred by limitation and consequently, urged the Court to dismiss the appeal. 15. The following points arise for determination in the appeal:~ 1.Whether the suit in O.S.No.14 of 1988 is barred by limitation? 2.Whether the period of limitation in instituting the suit is to be determined by Article 58 or by Article 65 of the Limitation Act? 3.Whether the suit had been properly valid and proper Court fees paid? 4.Whether the suit as framed is maintainable? 5.Whether the Will dated 30.03.1976 marked as Ex.B.37 was executed by Chinnappa Pillai out of free consent and when in sound state of mind? 6.Whether the will was obtained through undue influence? 7.Whether the will had been proved in manner known to law? 8.Whether the plaintiffs are entitled for the relief of declaration and recovery of possession? 9.Whether the judgment under appeal requires interference? 16. Point Nos.1 and 2:~ 1.These points relate to whether the suit is barred under the law of limitation:~ (i) It is the contention of the learned counsel for the plaintiffs that the suit reliefs fall under Article 65 of the Limitation Act. On the other hand, it is the contention of the learned counsel for the defendants that the suit reliefs are covered under Article 58 of the Limitation Act. Under Article 65 of the Limitation Act, the period of limitation is 12 years and it relates to possession of immovable property or any interest therein based on title. It is contention of the learned counsel for the defendants that since Chinnappa Pillai had executed a will and had died prior to the institution of the suit, the plaintiffs do not have title over the properties. (ii) The learned counsel, therefore, stated that Article 58 alone is attracted which is the Article to obtain a relief of declaration and the period fixed therein is three years. It is seen that the plaintiffs had filed O.S.No.57 of 1976 seeking accounts of the income of the properties left behind by Chinnappa Pillai. The judgment in that suit was marked as Ex.A.5. It was dated 29.08.1980. The said suit was dismissed on the ground of maintainability. Thereafter, the plaintiffs filed A.S.No.1127 of 1980 before the High Court. They filed C.M.P.No.2838 of 1987. Orders were passed in the said Civil Miscellaneous Petition on 02.03.1987. This was produced as Ex.A.6. In Ex.A6, the High Court had granted leave to withdraw O.S.No.57 of 1976 and file a fresh suit for such reliefs, as though just and proper. After that, the present suit in O.S.No.14 of 1988 had been filed on 20.01.1988. In the light of these background facts, the learned counsel for the plaintiffs stated that the period of the pendency of O.S.No.57 of 1976 has to be excluded and if it is so done, the suit would be very much within the period of limitation. It is seen that Chinnappa Pillai died on 16.04.1976. The cause of action arose on that date. The learned counsel for the defendants however pointed out Order 23 Rule 2 CPC, wherein it had been provided that if a fresh suit is instituted, then the plaintiffs shall be bound by the law of limitation, as if the first suit had not been filed. The learned Subordinate Judge had held that Article 58 of the Limitation Act would apply to the present case. (iii) I disagree with the said contention. The claim of the plaintiffs is based on title. Title will pass to the defendants, not by execution of the will but only when the will is proved in manner known to law. The defendants have not filed any application for probate of the will. Unless the will is proved, they also cannot claim title over the properties. If the will was not in existence then the plaintiffs, as daughters, would inherit the properties. Consequently, I hold that the suit will be covered only under Article 65 and not under Article 58. (iv) In AIR 2000 SC 1099 (State of Maharashtra Vs. Pravin Jethalal Kamdar), the scope of both Articles 58 and 65 of the Limitation Act had been examined:~ ?Article 58 of the Limitation Act, 1963, prescribes limitation of three years from the date when the right to sue first accrues to obtain a declaration. Under Article 65, the period of limitation prescribed for filing a suit for possession of immovable property or any interest therein based on title is 12 years from the date when possession of the defendants becomes adverse to the plaintiff. The contention urged on behalf of the State Government was that Article 58 of the Limitation Act was applicable as the plaintiff had sought declaration about the invalidity of the order dated 26th May, 1976 and sale deed dated 23rd August, 1976 and that the period of limitation of three years had to be computed from 26th May, 1976 and, therefore, the suit filed on 22nd August, 1988 was hopelessly barred by time. This contention was rejected by the High Court as also by the trial court. The contention urged on behalf of the plaintiff and which has been accepted is that the suit is basically for possession of the property based upon title and the sale deed dated 23rd August, 1976 and the order dated 26th May, 1976 and the order dated 26th May, 1976 being void ab inito and without jurisdcition, a plea about its invlidity can be reaised in any proceedings and it is not necessary to claim any declaration and thus Article 65 which deals with suit for possession based on title would be applicable from the date, the possession of the defendant becomes adverse to the plaintiff.? ?The fact of plaintiff having sought such a declaration is of no consequence. When possession has been taken by the appellants pursuant to void documents, Article 65 of the Limitation Act will apply and the limitation to file the suit would be 12 years. When these documents are null and void, ignoring them a suit for possession simpliciter could be filed and in the course of the suit it could be contended that these documents are nullity. In Ajudh Raj and Ors. v. Moti S/o Mussadi [(1991) 3 SCC 136] this Court said that if the order has been passed without jurisdiction, the same can be ignored as nullity, that is, non~existent in the eyes of law and is not necessary to set it aside; and such a suit will be governed by Article 65 of the Limitation Act. The contention that the suit was time barred has no merit. The suit has been rightly held to have been filed within the period prescribed by the Limitation Act. ? (v) In 2015 7 SCC 58,(M.P.Steel Corporation Vs. Commissioner of Central Excise), the ingredients of Section 14 of Limitation Act had been discussed:~ 7.Section 14 of the Limitation Act reads as follows: 14. Exclusion of time of proceeding bona fide in court without jurisdiction.? (1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub~section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under Rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature. Explanation.?For the purposes of this section,? (a) in excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted; (b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; (c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.? 8. Shri A.K. Sanghi, learned senior counsel appearing on behalf of the Department has stated that at no point of time has the appellant taken up a plea based on Section 14. Neither has the appellant met with any of the five conditions set out in paragraph 21 of Consolidated Engg. Enterprises v. Principal secy., Irrigation Deptt., (2008) 7 SCC 169, which reads as follows:~ ?21. Section 14 of the Limitation Act deals with exclusion of time of