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Thimma.V.Saradha Ammal (Died) vs M.N.Kumareshbabu on 5 September, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 05.09.2018

Reserved on : 16.08.2018

Pronounced on : 05.09.2018

Coram

The Hon’ble Mr. Justice C.V.KARTHIKEYAN

Appeal Suit(MD)No.60 of 2010

1. Thimma.V.Saradha Ammal (Died)
2. T.V.Viswanath
3. T.V.Sivanath
4. T.V.Premnath, … Appellants/Plaintiffs

Vs

1. M.N.Kumareshbabu

2. The Collector of Madurai
Having its office at Collector Office Buildings,
Madurai-20
… Respondents/Defendants

Prayer: Appeal Suit is filed under Order 41 Rule 1 and Section 96 of the
Civil Procedure Code, praying against the Judgment and Decree dated
18.11.2009 in O.S.No.36 of 2008 on the file of the Learned Fast Track Judge
No.II, Madurai.

!For Appellants : Mr.AR.L.Sundaresan,
Senior Counsel
for M/s.M.S.Suresh Kumar
for 2nd appellant

Mr.R.Ragavendran
For 3rd appellant

^For Respondents : Mr.M.N.Sankaran
for R-1

: Mr.J.Gunaseelan Muthiah,
Additional Government Pleader
for R-2

:JUDGMENT

This appeal had been filed by the plaintiff in O.S.No.36 of 2008 on the
file of the Fast Track Court No.II, Madurai. By Judgement dated 18.11.2009,
the said suit was dismissed.

2.The plaintiff, Thimma.V.Saradha Ammal, had filed the suit against
M.N.Kumareshbabu, who was the son of her brother M.K.Nagasamy and against the
Collector of Madurai. The second defendant was impleaded, since she had
originally filed the suit in forma pauperis. However she was directed to pay
necessary Court fees and she also paid the Court fees. The second defendant,
subsequent to the order refusing permission to sue as in forma pauperis has
become an unnecessary party to the proceedings. However in the first appeal,
the second defendant who is shown as second respondent still participated in
the proceedings and Mr.J.Gunaseelan Muthiah, Additional Government Pleader
was also present during the arguments.

3.The suit in O.S.No.36 of 2008 had been filed for a declaration that
the plaintiff was the absolute owner of the suit property and for costs of
the suit. The suit property was land and building at door no.41-A,
T.S.No.1298/3, Block No.16, Ward No.28, Mahal Vadampokki Street, Madurai. The
plaintiff’s father was Kuppusamy Iyer and her mother was Rajammal. She had
two brothers, M.K.Krishnamoorthy, and M.K.Nagasamy, the father of the first
defendant.

4.The plaintiff married at the age of 13 years to T.K.Varadhachary. She
gave birth to four sons. Her husband died in the year 1955. At that time,
she was aged only about 25 years. Her first son Gopinath was aged 8 years.
The second son Viswanath was aged 6 years. The third son Sivanath was aged 4
years and the fourth son Premnath was aged 8 months. It had been stated in
the plaint that considering her very young age and that she was left a widow
with four young children including one infant, her father permitted her to
take possession of the suit property from the date of the death of her
husband in 1955. She was then maintained by her parents.

5.Thereafter, a partition deed was entered into on 29.06.1969 among her
father and two brothers, and the suit property was allotted to her father.
She continued to stay in the suit property. He executed a registered Will on
23.04.1975. He gave a life-interest to the plaintiff and her mother and
further permitted them to enjoy the income from the property. He then stated
that after their death, his grand son, the first defendant would get the
property. It was stated in the plaint that in lieu of pre-existing right of
maintenance she was given the right of possession, she was also permitted to
collect the rental income. She claimed that she had been in continues
possession from 1955 till the date of institution of suit for over 51 years.
Her mother died on 25.08.1997. She claimed absolute title under Section 14(1)
of the Hindu Succession Act. The first defendant through his father
M.K.Nagasamy who acted as power agent filed O.S.No.713 of 2002 on the file of
Principal District Munsif Court, Madurai Town. The suit was dismissed by
Judgment dated 09.10.2006. The first defendant claimed a vested remainder
interest in the property. Claiming that her life-interest had enlarged to
absolute ownership in view of Section 14(1) of the Hindu Succession Act, the
plaintiff had filed the suit seeking declaration of title.

6.The first defendant in his written statement admitted the
relationship between the plaintiff and himself. He stated that the plaintiff
was given in marriage to a wealthy family. Her husband’s family owned
properties near Meenakshiamman Temple and in East Chithrai Street and another
in Mynatheppakulam in East Veli Street, Madurai. He claimed that the
plaintiff did not require any help from anybody, since her husband’s family
were owning properties. There was no liability or necessity to maintain the
plaintiff. She did not have pre-existing right of maintenance. The Will
cannot be misinterpreted as if the property was given in lieu of maintenance.
The property was given as life-estate to both the plaintiffs and her mother
and the plaintiff cannot claim absolute title. The plaintiff’s father and her
brothers had settled valuable property at Door No.121, Chinnakadai Street as
life-estate to be later vested after her life on her four sons. Under the
same settlement deed, dated 05.05.1955, another property measuring 1.22 acres
of agricultural land was also settled in favour of the plaintiff. She had in-
turn settled the same in favour of two sons namely Viswanath and Sivanath. It
was specifically denied that the plaintiff was maintained by her parents at
the time when she became a widow. The allegation that under Section 14(1) of
the Hindu Succession Act she became entitled to the suit property was denied.
It had been stated that the suit was frivolous and an unnecessary litigation.
It was claimed that the suit should be dismissed.

7.The learned Additional District Judge/Fast Track Court No.II Madurai
had examined the pleadings and had framed the following issues for
consideration.

(i) Whether the plaintiff was given the suit property in lieu of pre-existing
right for maintenance?

(ii) Whether the suit property belongs to the plaintiff absolutely?

(iii) Whether the relief of declaration is available to the plaintiff?

(iv) What other reliefs?

8.The second defendant had been set ex-parte by the Court by order
dated 30.07.2008.

9.During trial the plaintiff examined herself as PW-1. She marked the
certified copy of partition deed dated 29.06.1969 as Ex.A1 and the certified
copy of the Will dated 23.04.1975 as Ex.A2. She also marked other documents
including death certificate of her father and mother and copy of Judgment and
Decree in O.S.No.713 of 2002. She totally marked Exs. A1 to A9. On the side
of the first defendant, his father M.K.Nagasamy was examined as DW-1. He
marked the certified copy of settlement deed dated 05.05.1955 as Ex.B1 and
certified copy of order passed in POP.No.5/2007 as Ex.B2 and certified copy
of Decree passed in O.S.403 of 2004 as Ex.B3.

10.On consideration of the oral and documentary evidence, the learned
Judge dismissed the suit with costs by judgment dated 18.11.2009. He held
that the plaintiff’s father who died on 30.06.1989 was in enjoyment of the
suit property and that the plaintiff was not in possession of the suit
property and that she was not a destitute widow and was not a dependent under
Section 21 of the Hindu Adoptions and Maintenance Act 1956. The clauses in
the Will would have a play as per Section 14(2) of the Hindu Succession Act
and consequently, held that she cannot seek a declaratory right and dismissed
the suit.

11.As against such Judgment and Decree, the plaintiff filed the present
appeal. During the pendency of the appeal, the plaintiff, who was the
appellant, died and her legal representatives T.V.Viswanath, T.V.Sivanath and
T.V.Premnath have been brought on record as second to fourth appellants. It
must be mentioned that her other son Gopinath died a bachelor.

12. The points to be decided in the appeal are:-

1)Whether a widowed daughter can be termed as a dependent of her father?

2) Whether a property bequeathed as life-interest in a Will would blossom
into full ownership?

3)Whether in the instant case the claim of the plaintiff is covered under
Section 14(1) of the Hindu Succession Act or under Section 14(2) of the Hindu
Succession Act?

4)Whether the Judgment and Decree of the Trial Court requires interference??

13.Heard arguments advanced by Mr.A.R.L.Sundaresan, learned Senior
counsel for the second appellant and Mr.Ragavendran, learned counsel for the
third appellant and Mr.M.N.Sankaran, learned counsel for the first respondent
and Mr.J.Gunaseelan Muthiah, learned Additional Government Pleader for the
second respondent.

14.The parties shall be referred as plaintiffs and defendants. The term
plaintiff would include the legal heirs of the plaintiff. The issues framed
and dealt with together, since the facts overlap and the legal issues are
also intertwined

15.The points answered: The plaintiff, Thimma.V.Saradhammal, was
married to T.K.Varadhachary when she was 13 years old. He died in the year
1955, when she was about 25 years. At the time of the death of
T.K.Varadhachary, she had four children, the first son Gopinath was aged 8
years. The second son Viswanath was aged 6 years. The third son Sivanath was
aged 4 years. The fourth son Premnath was aged 8 months. At that point of
time, the plaintiff was a widow, who needed shelter. She sought shelter.
There is no evidence let in particularly by the first defendant that
immediately on her widowhood, she was given protection and shelter by the
family of her late husband. It had been repeatedly pointed out by the learned
counsel for the first defendant that the family of the late husband possessed
several properties. However, possessing property on paper is entirely
different from granting physical possession to a widowed daughter-in-law to
such property. The evidence on this aspect clearly reveals that she was
granted shelter only by her parents.

16. On the side of the first defendant, the defendant being a very busy
person did not tender evidence. He did not subject himself for cross
examination. His father gave evidence as DW-1. In his chief examination, DW-1
stated as follows:-

?/////vdJ jfg;gdhh; M.A.N. Fg;g[rhkp ma;ah; 30/06/1986 njjpapy; fhykhdhh;/
mjd;gpwF Ex.A2-d;go jhth brhj;jpd; K:yk; tUk; tUkhd’;fis vdJ jhahh;
uh$k;khSk;. thjpa[k; bgw;Wf; bfhz;L mDgtpj;J te;jhh;fs;/ vdJ jhahh; uh$k;khs;
25.08.1997-y; fhykhd gpd;dh; thjp kl;Lk; jhth brhj;jpypUe;J tUk; vy;yh
tUkhd’;fisa[k; mDgtpj;J tUfpwhh;/ vdJ jfg;gdhhplk;. jhahUld; ,Uf;fpnwd; vd;W
thjp nfl;Lf; bfhz;ljhy; vdJ jfg;gdhUk;. thjpiaa[k;. mtuJ kfd;fisa[k; jhth
tPl;oy; jhahUld; nrh;e;J ,Ue;J tUtjw;F rk;kjpj;jhh;/////?
The evidence is clear admission in chief examination that the plaintiff was
permitted to stay in suit property and also permitted to enjoy the rental
income. The parents understood her plight better than her brother, DW-1.

17. In cross examination he stated as follows:-

?/////thjp vdJ K:j;jrnfhjhpahthh;/ thjpf;F 13 taJ ,Uf;Fk;nghJ
jpUkzk; Mfptpl;lJ/ mtUf;F 1944k; tUlk; jpUkzk; Rkhuhf MfpapUf;Fk;/ thjpapd;
fzth; bgah; tujhr;rhhp/ thjp mthpd; fztUld; Rkhh; 11 tUlk; kl;Lk;
thH;e;Js;shh; vd;why; mJrhp/ mt;thW 11 tUlk; FLk;gk; elj;jpa rkaj;jpy;
mtUf;F 4 Mz;gps;isfs; gpwe;jJ vd;why; mJrhp/////?

?/////thjpapd; fzth; tujhr;rhhp 1955k; Mz;L ,we;Jtpl;lhh;/ mthpd;
fzth; ,wf;Fk;nghJ thjpf;F taJ 25/ mt;thW mthpd; fzth; ,wf;Fk;nghJ
tp!;thehj;f;F 6 taJ. Rptehj; 4 taJ vd;Wk;. gpnuk;ehj; ifkhj FHe;ij vd;why;
mJrhpjhd;/ mthpd; fzth; ,we;jgpd;g[ thjp mtUila jha;a[ld; ,Uf;fntz;Lbkd;Wk;
brhd;djpdhy; mtiua[k; mthpd; FHe;ija[k; vd; bgw;nwhh;fs; jhth tPl;ow;F
miHj;Jte;jhh;fs; vd;why; mJrhp/ 1955k; tUlj;jpy; ,Ue;J thjpa[k; mthpd; 4
FHe;ijfSk; trpj;J te;jhh;fs; (jhthtPl;oy;)/////?

?/////thjpf;F thjpapd; fzth; FLk;gj;jpy; ,Ue;J brhj;Jf;fs; vJt[k;
bfhLf;fg;gltpy;iy/ 1955k; tUlj;jpy; ,Ue;J thjpf;Fk; mthpd; FHe;ijfSf;Fk; vd;
bgw;nwhh;fs; ,Uf;f ,lk;. czt[. cil. bfhLj;jhh;fs;/////?
DW-1 has admitted in cross examination that the necessity to maintain the
plaintiff and her four young children. He further admitted that she was not
given any property from her in-laws side on the death of her husband. He
clearly stated that it was her parents, who provided her with food, cloths
and shelter.

18.It has been contended by the learned Counsel for the defendants that
a widowed daughter cannot be termed as a ?dependent? in view of Section 21 of
the Hindu Adoption and Maintenance Act, 1956 (Act 78 of 1956). The said Act
came into effect on 21.12.1956. In the instant case, the plaintiff was
widowed in the year 1955. On and from that date, there was an obligation of
either her parents and her in-laws to provide shelter, food and cloths.
Evidence reveals that her parents stepped in and provided her shelter. They
did so since she had to be maintained. Possession and permission to enjoy
possession was granted in lieu of maintenance. I therefore hold that a
widowed daughter can be termed as a dependent of her father depending upon
the surrounding circumstances. The plaintiff cannot be non-suited on the
basis of an Act which was not in force in 1955, when she was widowed.

19.He further stated that money was given to her by her in-laws, but
admitted that this fact was not stated in the written statement or in his
proof affidavit and was also not put during cross examination to the
plaintiff. The statement is rejected by me. The evidence of DW-1, when read
as a whole, clearly reveals that at the time of death of her husband when she
was left to cater to four small children, the plaintiff required shelter and
that shelter was provided only by her father. It must also be mentioned that
she had been in continuous possession of the suit schedule property.
Thereafter, in confirmation of grant of such shelter the father of the
plaintiff had also bequeathed to her the very same property in his Will Ex-
A2, dated 23.04.1975 by granting life-interest together with right to collect
the income from the property.

20. DW-1 during his cross examination admitted that by the Will, the
father bequeathed life interest in the property to the plaintiff and her
mother. They were entitled to collect the rents. They also did so.

?/////23/04/1975 md;W vd; je;ij gjpt[ bra;j capy; thrh M/2
vGjpitj;jhh; vd;why; mJrhp/ vd; jfg;gdhh; capy; vGjpitj;j rkaj;jpy; mthpd;
taJ 64 vd;why; mJrhp/ mjd;gpd;g[ vd; je;ij 14 mz;Lfs; capUld; ,Ue;jhh;
vd;why; mJrhp/ ,e;j capypy; vd; jhahh; vd; rnfhjhpahd thjpa[k; fjt[ vz;/41y;
trpj;;J tUtjhf brhy;yg;gl;Ls;sJ vd;why; mJrhpjhd;/ me;j capypy; vd; jfg;gdhh;
,we;jgpd;g[ ,e;j brhj;jpy; thjpa[k;. vd; jhahUk; mth;fs; capUld; ,Uf;Fk; tiu
mDgtpj;J tuntz;oaJ vd;W fz;Ls;sJ vd;why; mJrhp/ nkYk; ,e;j capypy; nkw;go
brhj;jpy; ,Ue;J tUk; tUkhd’;fis mile;Jbfhs;sntz;oaJ vd;W brhy;yg;gl;Ls;sJ
vd;why; mJrhp/ vdnt vd; je;ij ,Ue;j fhyj;jpy; ,e;j fjt[,yf;fk; 41/V gFjp
thliff;F tplg;gl;L ,Ue;jJ vd;why; mJrhp/ vd; je;ij capUld; ,Ue;j fhyj;jpy;
thlif tUkhd’;fis mth; mDgtpj;J te;jhh; vd;why; mJrhp/ vd; je;ij ,we;jgpd;g[
vd; jhahUk; thjpa[k; nrh;e;J me;jthlifia bgw;W mDgtpj;J te;jhh;fs; vd;why;
mJrhp/////?

21. The evidence in this case clearly points out that the plaintiff was
put in possession for her survival. She was put in possession with right to
collect the rent for expenses to maintain herself and her four children.
Incidentally the family of her husband also had properties but she was not
granted either possession or was ownership transferred to her at any point of
time. There is also no evidence that she acquired property from her husband’s
side.

22. In the Will, Ex-A2, it had been further stated very clearly that
his wife and daughter can reside and enjoy the rental income till their life
time:

?/////vd; Ma[Rf;Fg; gpd; ,jd; V bc{oa{ypy; fz;l nlhh; 41-V kid tPl;il
kJiu khefh; khy;tlk; nghf;fpj; bjU. nlhh; 41-V ek;gh; tPl;oy; trpf;Fk; vdJ
kidtp khdpf;fh F/uh$k;khs;-1/ nlhh; ek;ghpy; trpf;Fk; vdJ Fkhuj;jp
jpk;kh/t/rhujk;khs-2 ,uz;L ngh;fSk; Life Interest Mf mile;J ahbjhU ge;jf
guhjPdk; bra;ahky; brhj;jpypUe;J fpilf;f Toa tUk;gofis kl;Lk; mDgtpj;Jf;
bfhz;L///////?? ?

23. It is clear that her father wanted to provide security for the
plaintiff. It must also noted that in the partition effected between the
father and his two sons the property in possession of the plaintiff was
allotted to the father. This is very significant since, all the three namely,
father and the two brothers though it fit that the plaintiff’s possession
must continue and her right to collect rents for her own maintenance and for
expenses for herself and for her four minor children should not be disturbed.

24. Section 14 of the Hindu Succession Act as follows:-
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 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
restriction estate in such property.

25. In Punithavalli Vs Ramalingam(AIR 1970 SC 1730), it had been held
as follows:-

? The estate taken by a female Hindu under sub-s (1) is an absolute one, and
is not defeasible and its ambit cannot be cut down by any text or rule of
Hindu law or by any presumption or any fiction under that law?.

26. In Eramma Vs Veerupana(AIR 1966 SC 1879), it had been held as
follows:-

?The property possessed by a female Hindu, as contemplated in the Section, is
clearly property to which she has acquired some kind of title, whether before
or after the commencement of the Act. It may be noticed that the Explanation
to Section.14(1) sets out the various modes of acquisition of the property by
a female Hindu and indicates that the Section applies only to property to
which the female Hindu ha acquired some kind of title, however restricted the
nature of her interest may be. The words ‘as full owner thereof and not as a
limited owner’ in the last portion of sub-s(1) of the section clearly suggest
that the legislature intended that the limited ownership of a Hindu female
should be changed into full ownership. In other words, Section 14(1) of the
Act contemplates that a Hindu female, who in the absence of this provision,
would have been limited owner of the property, will now become full owner of
the same by virtue of this section. The object of the section is to
extinguish the estate called ‘limited estate’ or ‘widow’s estate’ in Hindu
law and to make a Hindu woman, who under the old law would have been only a
limited owner, a full owner of the property with all powers of disposition
and to make the estate heritable by her own heirs and not revertible to the
heirs of the last male holder.?

27. In Vaddeboyina Tulasamma Vs Seshi Reddi(AIR 1977 SC 1944), it had
been held as follows:-

?The approach of giving ‘a most expansive interpretation’ to the sub-section
is with a view to advance the social purpose of the legislation which is to
bring about a change in the social and economic position of women?.

28. It was further held that:

?This sub-Section (2) must be read only as a provision or exception to sub-
s(1) and its operation must be confined to cases where property is acquired
for the first time as a grant without any pre-existing right under a gift,
Will, instrument, decree, order or award, the term of which prescribed a
restricted estate in the property?.

29. In Tulasamma Vs Seshi Reddi (AIR 1977 SC 1944), it had been held
as follows:-

? In the Supreme Court held that when specific property is allotted to a
widow in lieu of her claim for maintenance under an instrument which
prescribes a restricted estate, question has arisen as to whether she becomes
absolute owner of the same by operation of sub-s(1) read with the Explanation
or does she remain entitled only to a restricted estate as visualised in sub-
s(2). There was no difficulty as to the effect of any instrument giving
specified property for maintenance to a Hindu widow where the instrument was
executed after the death of her husband after the Hindu Women’s Right to
Property Act, 937 came into operation; because in any such case the
subsequent instrument could be regarded as merely declaring the pre-existing
title in the widow. And although the instrument spoke of limited interest the
case did fall under sub-s (1) read with the Explanation.?.

30.The contentions raised by the learned counsel for the respondent are
not acceptable as they are in conflict with the position of law laid down by
the Supreme Court and stated above. Both Sub-Sections (1) and (2) of Section
14 have to be given their full play without rendering either as otiose or
aids as means of evidence. The Parliament has enacted the Hindu Succession
Act, 1956, containing Section 14 with the clear intention of removing the
pre-existing disabilities fastened on the Hindu female limiting her right to
property without full ownership thereof. The discrimination is sought to be
remedied by Section 14(1) of the Act, enlarging the scope of acquisition of
the property by a Hindu female. In such view of the matter, there can be no
doubt that Section 14(1) of the Hindu Succession Act, 1956, is intended to
enlarge the limited interest vested in a female Hindu into an absolute
estates when she has been given a property in recognition of her pre-existing
right to maintenance.

31. The points framed for consideration are answered in view of the
above discussion. That, in the present case the right of the plaintiffs is
covered under Section 14(1) of the Hindu Succession Act and a limited right
of possession in the year 1955 had been recognized by DW-1 himself by
permitting that very property to be allotted to the father in the partition
deed and further reinforced by the terms of the Will executed by the father.
Further, she was put in possession of the suit schedule property in lieu of
maintenance and by the terms of the Will granting her limited life interest.
This right was granted in lieu of maintenance and had enlarged to absolute
right. I therefore, differ from the views expressed by the learned Trial
Judge and I hold that Judgment under appeal requires interference.

32. For the reasons stated above, the appeal is allowed with costs, and
the suit in O.S.No.36 of 2008 on the file of the Fast Track Court No.II, the
Additional District Munsif, Madurai is decreed with costs.

To

1.The Fast Track Judge No.II, Madurai.

2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.

.

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