Madras High Court P. Balasubramaniam vs Smt. Pachaiyammal on 20 December, 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 20 12 2013

Coram

The Hon’ble TMT. JUSTICE PUSHPA SATHYANARAYANA

Second Appeal No. 480 of 2006

1. P. Balasubramaniam

2. P. Kothandam

3. Unnamalai … Appellants/Defendants

vs.

1. Smt. Pachaiyammal

2. Smt. Janaki Ammal

3. Smt. Saradha Ammal … Respondents/Plaintiffs

Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 05.04.2002 and made in A.S. and Cross Appeal No. 105 of 1998 on the file of the Additional District Judge, Kanchipuram, confirming the judgment and decree dated 25.08.1998 passed in O.S. No. 415 of 1996 on the file of the Principal District Munsif, Kanchipuram.

For Appellants : Mr. K. Ramu

For Respondents : Mr. M. Christopher

JUDGMENT

Aggrieved by the concurrent finding of the Courts below, the defendants have preferred this Second Appeal.

2. The plaintiffs / respondents herein, daughters of one Ellammal and Parasurama Nattar, filed suit in O.S. No. 415 of 1996 on the file of the District Munsif, Kancheepuram, for declaration of title to the plaint schedule lands and for recovery of possession of the same from the defendants, for an account of income till delivery of possession, for preliminary decree for partition and separate possession of the plaintiffs’ = share in the plaint schedule and for a decree against the defendants for the recovery of Rs.5000/- for damages for cutting the trees in the backyard of the plaint schedule II.

3. The plaintiffs’ father Parasurama Nattar, who had no male issues through his first wife Ellammal, married one Chinnammal as his second wife and the defendants / appellants are the children born through the said Chinnammal. Before the second marriage, since Parasurama Nattar wanted to settle and make some provision for his first wife and children, viz., plaintiffs, he executed a Registered Settlement Deed dated 17.01.1944 which is marked as Ex.A.1. Similarly, he also executed another Settlement Deed under Ex. B.1 dated 24.01.1944 settling certain properties in the name of the second wife Chinnammal. The intention of the settlor was to make separate provision for both his wives and children born to them separately. The Settlement Deed was accepted and acted upon by the plaintiffs and their mother. One of the items given under the Settlement Deed is a share in the house property schedule as Item No. 2 in the plaint schedule, which is the tiled house in Survey No. 796/94. In the said house, the Settlor had retained 1/3 for himself and settled 1/3 each to the first and second wives. The first wife Ellammal died on 10.7.1994. The father of the plaintiffs’ Parasuma Nattar died on 04.01.1961 and on the death of the plaintiffs’ mother on 10.7.1994, the defendants have taken unlawful possession of the plaint schedule mentioned lands in item No. 1 and their share in the second item of the property. The plaintiffs have also claimed damages for cutting the trees in the backyard of the plaint schedule.

4. Resisting the suit, the defendants filed written statement stating that the plaintiffs are not entitled to any share in the suit property. According to the defendants, as per the Settlement Deed dated 17.01.1944, the Settlor had given only a limited right of enjoyment to the first wife Ellammal and thereafter, the property was to vest with the male heirs of the deceased Parasurama Nattar. Therefore, it is contended by the defendants that the plaintiffs cannot get any share in the suit item No. 1.

5. The trial Court, considering the facts and circumstances of the case as well as the evidence adduced before it, by judgment dated 25.8.1998, decreed the suit with respect to declaration of title and possession and for partition of half share in the second item. Insofar as the mesne profits and damages are concerned, the suit was dismissed. Aggrieved by the same, the defendants preferred appeal in A.S. No. 105 of 1998. The plaintiffs who were not satisfied with the finding with regard to mesne profits, filed Cross Objection. The first Appellant, viz., Additional District Judge, Fast Track Court, Kancheepuram, on consideration of the evidence adduced and the arguments advanced by the learned counsel for the parties, by judgment dated 05.4.2002, dismissed both the Appeal and the Cross Objection confirming the judgment and decree of the trial Court. Hence, the present Second Appeal by the defendants.

6. At the time of admitting the Second Appeal on 20.4.2006, this Court formulated the following substantial questions of law for consideration:-

(i) Whether the lower Court was correct in ignoring Ex.A.1?

(ii) Whether the lower Court was right in holding that the defendants are not entitled for any partition and mesne profits?

(iii) Whether the Courts below have erred in not truly and properly interpreting the recitals in Exs. A.1 to A.12 with regard to the objects and true intention of the settlor?

7. Heard Mr. K. Ramu, learned counsel appearing for the appellants/defendants and Mr. M. Christopher, learned counsel for the respondents / plaintiffs and perused the records.

8. It is not in dispute that Parasurama Nattar executed Settlement Deed under Ex. A.1 dated 17.01.1944 in favour of his first wife Ellammal and another Settlement Deed under Ex. B.1 dated 24.01.1944 in favour of his second wife Chinnammal. It is to be noted that both Exs. A.1 and B.1 were written within a period of one week. At this instance, it will be useful to extract the recitals of Ex.A.1 and the relevant passage reads as follows: “guRuhk ehl;lhd; kidtp vy;yk;khSf;F vGjp itj;j brl;oy;bkz;L gj;jpuk; ehd; cd;idf; fy;ahzk; bra;J bfhz;L ,J tiuapy; FLk;gk; bra;J te;j tifapy; ehd;F bgz; Fhe;ijfs; khj;jpuk; Vw;gl;oUf;fpd;wd/ Mz; re;jjp xd;Wkpy;iy/ Mz; re;jjp ,y;yhjjhy; ntW xU bgz;izf; fy;ahzk; bra;J bfhs;syhbkd ehd; epidf;fpnwd;. ehd; ntW xU bgz;izf; fy;ahzk; bra;J bfhz;lhy; ehd; turtuT&iz bra;ahJ bfLjp bra;thndh vd;w vz;zk; cdf;Fj; njhd;wjpUg;gjw;fhft[k; cd; kPJ vdf;Fs;s g;hpjpia bfhz;Lk;. cd; $Ptpaj;Jf;F ahbjhU Fiwghoy;yhj gof;Fk; ,jdoapw; fz;l brhj;Jf;fis cd; $Ptpaj;jpd; bghUl;L ,e;j brl;oy; bkz;L j!;jhnt$% K:yk; Vw;ghL bra;jpUf;fpnwd;. ehd; ntW xU bgz;izf; fy;ahzk; bra;J bfhz;lt[ld; eP vd;Dld; Tl ,Ue;J xw;Wikaha;;f; FLk;gk; bra;a Koahj fhyj;jpy; moapw;fz;l brhj;J tifauhit eP if gw;wp rhFgo bra;J mjpy; tUk; khN:iy khj;jpuk; cd;rtuizf;fhf mDgtpj;Jf; bfhs;s ntz;oaJ cdf;F ,dp Mz; re;jjp njhd;Wk; gc&j;jpy; tpF/ guRuhk ehlhh; vd; brhj;Jf;fs; g{uht[f;Fk; g[j;jpu ghfg;go mila ghj;jpa!;jiftJkd;wp ,e;j brl;oy;bkz;L brhj;Jf;Fk; g[j;jpughfg;go ghj;jpa!;jdhthd;/ ,e;j j!;jhnt$py; fz;l brhj;Jf;fis eP ve;j tifapYk; ahbjhU J}tpdpnahfkhtJ tpy;y’;fkhtJ bra;af; TlhJ/ mg;go bfl;l vz;z’;bfhz;L bra;jhYk; bry;yj;jf;fpdjy;y/ cd; $Ptpaj;Jf;F nghJkhd brhj;jhf kj;jpa!;jh;fs; K:yk; Vw;ghL bra;jpUg;gjhy; ve;jtpj Jh;tpdpnahfKk; eP bra;af; TlhJ/ cd; $Ptpa fhyk; tiuapy; moapy; fz;l brhj;Jf;fspy; tUk; gyid khj;jpuk; eP mDgtpj;J te;J cd; fhyhde;juk; vd; thh;Rfd; g[j;jpu ghfg;go mila ntz;oaJ/”

9. From a perusal of Exs. A.1 and B.1, it can be seen that in Survey No. 726/3, out of the total of extent of 6 Acres, 3 Acres was written in favour of Ellammal, first wife of Parasurama Nattar under Ex.A.1 and the balance 3 Acres was written in favour of Chinnammal, the second wife of Parasurama Nattar. Similarly, in the house situate in Survey No. 796/94, both the wives were given 1/3rd share each and the balance 1/3rd share was retained by the said Parasurama Nattar by himself.

10. After the death of the said Parasurama Nattar on 14.6.1961, the plaintiffs are claiming half share in the 1/3rd share retained by him. The interpretation of the defendants that under Ex.A.1, the Settlee Ellammal was given only the right of enjoyment till her lifetime after which, the properties should devolve only on the male heirs born to Parasurama Nattar through Chinnammal. It was further contended by the learned counsel for the defendants / appellants that since the said Ellammal had no male issues during her lifetime, the deceased Parasurama Nattar only intended to benefit the male heirs born to him through his second wife Chinnammal. Therefore, according to the learned counsel, the plaintiffs being the female heirs of the deceased Parasurama Nattar are not entitled to any share in the property under Ex.A.1.

11. At this juncture, it will not be out of place to mention that though the suit has been decreed, the Courts below have lost sight of the fact that Section 14 of the Hindu Succession Act is applicable to the case on hand. It would be appropriate to extract Section 14 of the Hindu Succession Act. S.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. 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 of 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.”

12. It can be seen that there was restriction in Ex.A.1 that the Settlee Ellammal cannot deal with the property and she can only enjoy the same during her lifetime and thereafter, it will devolve on the male heirs born to the Settlor Parasurama Nattar. However, after coming into force of the Hindu Succession Act, 1956, the pre-existing right of Ellammal in the suit properties stand crystalized into an absolute title.

13. Applying the principles of Section 14(1) of the Hindu Succession Act stated supra, the property set out in Ex. A.1 becomes the absolute property of Ellammal and after her death, it devolves upon her legal heirs, viz., the plaintiffs.

14. In this regard, learned counsel for the appellants / defendants argued that the respondents / plaintiffs have not raised such a plea and hence, the same cannot be taken by this Court. Though the plaintiffs have failed to project the same in their pleadings before the Courts below as well as before this Court, it, being a substantial question of law, dealing appeal under Section 100 CPC, it is open for this Court to decide the same at this stage.

15. It can be seen from the findings of the First Appellate Court that the plaintiffs’ mother Ellammal had been in possession till her death in 1994. Ex.A.6 is the notice and Ex.A.7 is Patta No. 680 in the name of Ellammal. A.8 is notice for re-survey and A.9 is Patta. Further, all the documents, including A.10 kist receipt and other tax receipts, stand in the name of Ellammal.

16. A perusal of the above documents clearly go to prove that the plaintiffs’ and their mother were enjoying the properties till her death and after her death, the defendants have trespassed and dispossessed them. Therefore, it is clear that Ellammal who got the property under Ex.A.1 was in possession of the property on the date of commencement of the Act.

17. In this regard, reliance is placed on the decision of the Hon’ble Supreme Court in Sadhu Singh Vs. Gurdwara Sahib Narike and others [2006 (4) CTC 773] and the relevant passages found in paragraph 6 and paragraphs 7 and 8 are extracted below:- Para 6: “…. Thus, she was a Hindu female who possessed the property at the commencement of the Act but with a restricted right under a compromise. It was therefore a case where a female Hindu possessed the property on the date of the Act in which she had a pre-existing right though limited and in such circumstances Section 14(1) had operation to convert her limited estate into an absolute one and Section 14(2) could not be relied on for taking the case out of Section 14(1) of the Act on the basis that the property was put in her possession on the basis of a compromise.

Para 7: Now, it is clear from the section and implicit from the decisions of this Court, that for Section 14(1) of the Act to get attracted, the property must be possessed by a female Hindu on the coming into force of the Hindu Succession Act. In Mayne on Hindu Law, 15th Edn., p. 1171, it is stated: On a reading of sub-section (1) with Explanation, it is clear that wherever the property was possessed by a female Hindu as a limited estate, it would become on and from the date of commencement of the Act her absolute property. However, if she acquires property after the Act with a restricted estate, sub-section (2) applies. Such acquisition may be under the terms of a gift, will or other instrument or a decree or order or award. Para 8: In Gummalapura Taggina Matada Kotturuswami v. Setra Veeravva and others,1959 Supp. (1) SCR 968, this Court quoted with approval the following words of Justice P.N.Mookherjee, in Gostha Behari Bera v. Haridas Samanta (AIR at p. 559, para 12): The opening words any property possessed by a female Hindu obviously mean that, to come within the purview of the section, the property must be in possession of the female concerned at the date of commencement of the Act. They clearly contemplate the females possession when the Act came into force. That possession might have been either actual or constructive or in any form, recognised by law, but, unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word possession in its widest connotation, when the Act came into force, the section would not apply. and added: (SCR p. 978)

In our opinion, the view expressed above is the correct view as to how the words any property possessed by a female Hindu should be interpreted.

18. Learned counsel appearing for the appellants / defendants pressed into service the decision of the Hon’ble Court in Shivdev Kaur (D) by LRs. and others vs. R.S. Grewal [2013 (2) CTC 587]. Considering the facts and circumstances involved in this issue, the judgment relied on by the learned counsel has got no application to the present case.

19. In view of the above legal position and in the absence of any dispute with regard to the execution of Ex.A.1 and the same having been acted upon by the mother of the respondents / plaintiffs during her lifetime, this Court has no hesitation to hold that the property under Ex.A.1 becomes the absolute property of Ellammal, first wife of the deceased Parasurama Nattar and that the respondents / plaintiffs, being her legal heirs, are entitled to get the same.

20. Insofar as the second item of the property is concerned, which is a house site, only 1/3rd right was given to Ellammal under Ex.A.1. Admittedly, 1/3rd share in the said property retained by Parasurama Nattar, the father of the respondents / plaintiffs and the appellants / defendants, who died in 1961, will devolve equally on all his children, viz., the three plaintiffs and the three defendants, children of the deceased through his first wife and second wife, respectively. Therefore, each of them is entitled to 1/18 share or in other words, the plaintiffs and the defendants are entitled to 1/6 share.

In view of the foregoing reasons, question Nos. 1 to 3 are answered in favour of the respondents / plaintiffs and the Second Appeal is dismissed confirming the concurrent finding of the Courts below. No costs. 20 12 2013

Index : Yes

Internet : Yes

gri

PUSHPA SATHYANARAYANA, J.

gri

To

1. Additional District Judge

Kanchipuram

2. Principal District Munsif

Kanchipuram

3. The Record Keeper

V.R. Section

High Court

Madras.

Pre- Delivery Judgment in

S.A. No. 480 of 2006

Delivered on

20 12 2013