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Supreme Court of India
Vasantha (Dead) Thr. L.R. vs Rajalakshmi @ Rajam (Dead) Thr. Lrs. on 13 February, 2024
Author: Sanjay Karol
Bench: Sanjay Karol, Hrishikesh Roy
2024 INSC 109 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 3854 OF 2014
VASANTHA (DEAD) THR. LR. …APPELLANT(S)
Versus
RAJALAKSHMI @ RAJAM (DEAD) …RESPONDENT(S)
THR.LRs.
JUDGMENT
[
SANJAY KAROL, J.
1. The action that set in motion the instant dispute was in the year 1947, when
a mother transferred property inherited at the death of her husband, in one form
to her two sons and in another, to her daughter. Some forty-odd years later, the
daughter’s husband filed a suit in respect of such property, in 1993. The
Additional District Munsiff1 decided the matter in 1999. The Additional District
and Session Judge2 returned a decision on the First Appeal in 2002. The Second
Appeal was decided by the High Court3 in 2012. It is against this order and
Signature Not Verified
judgment in Second Appeal that the present civil appeal has been preferred.
Digitally signed by
Jayant Kumar Arora
Date: 2024.02.16
19:21:18 IST
Reason:
1
“Trial Court”
2
“First Appellate Court”
3
“Impugned judgment”
1| Civil Appeal No. 3854 of 2014
BACKGROUND FACTS
2. It would be necessary to advert to the facts underlying the present dispute.
3. On 10th July 1947, one Thayammal executed a settlement deed4 granting
rights in her property to her two sons namely Raghavulu Naidu and
Chinnakrishnan @ Munusamy Naidu5 for their lives and thereafter to the former’s
two daughters namely Saroja and Rajalakshmi (present Respondent now
represented through LRs). Saroja pre-deceased Thayammal as also her father and
uncle, in 1951.
3.1 Subsequently, Raghavulu and Munusamy executed a Settlement Deed
dated 31st July 19526 reverting the said interests in the properties back to their
mother.
3.2 Thayamma, soon thereafter, executed a further Settlement Deed7 dated 18th
August 1952, bequeathing absolute interest in such properties only in favour of
her two sons namely Raghavulu Naidu and Munusamy Naidu, with the
consequence of extinguishing the rights, if any, of Saroja and Gopalakrishnan.
3.3 Munusamy had no children. His wife Pavunammal enjoyed life interest in
the property bequeathed to her husband. They had an adopted daughter, Vasantha
(present Appellant, now represented through LRs).
3.4 In 1993, during the lifetime of Pavunammal, Gopalakrishnan (Husband of
Saroja) filed a suit, subject matter of the present lis, praying for a declaration as
4
“First Settlement Deed”
5
“Munusamy”
6
“Second Settlement Deed”
7
“Third Settlement Deed”
2| Civil Appeal No. 3854 of 2014
the owner of the properties since he was the sole heir of Saroja in terms of the
First Settlement Deed.
4. It is in this brief background of facts that the dispute entered the courts.
It would be useful to have a summary of family relations forming the backdrop
of, and parties to, the dispute by way of a chart, as immediately hereunder:-
• Pounamma is also referred to as Pavanuammal at some places, as was so
done by the Courts below.
PROCEEDING BEFORE THE TRIAL COURT
A. PLAINT
5. Plaintiff (Gopalakrishnan) filed a suit for declaration and to establish his
vested rights and interest in the property.
3| Civil Appeal No. 3854 of 2014
5.1 It was urged that only the First Settlement Deed had legal sanctity.
Accordingly, the wife of Munusamy is only entitled to possession and enjoyment
till her lifetime. There is no right of transfer in her favour.
5.2 The Second Settlement Deed is only for the lifetime of Thayammal, and
the same would not impact the vested right created in favour of deceased Saroja,
inherited by Gopalakrishnan, as her husband and sole heir.
5.3 The adoption of Vasantha is illegal. Also, the vested right in favour of
Saroja was created prior to such adoption and, therefore, would not affect the
rights of Gopalakrishnan.
B. WRITTEN STATEMENT
6. The written statement is of denial of all claims made by Gopalakrishnan.
6.1 It is incorrect to state that the two sons Raghavulu and Munasamy, were in
possession of suit properties according to the First Settlement Deed. No claim of
any vested rights can be accepted.
6.2 The claim that Gopalakrishnan is the sole legal heir of Saroja, cannot be
accepted as after her death in the year 1951, he has remarried and relocated to
Pondicherry.
6.3 Even if the First Settlement Deed is accepted as genuine, then
Pavanuammal alone would be the heir to such properties.
6.4 Munasamy had, during his lifetime, on 7th October, 1976 executed a
settlement deed in favour of Pavanuammal without any coercion. The patta of the
said property was also transferred in her name.
4| Civil Appeal No. 3854 of 2014
6.5 Since Munasamy and Pavanuammal did not have any children, they
adopted a child namely Vasantha. Pavanuammal of her own volition executed a
settlement deed in favour of Vasantha on 19th July, 1993. Any denial of the same
cannot be accepted.
6.6 On 18th August 1952, Thayammal had vide the Third Settlement Deed
given exclusively, the suit properties to her two sons who have made separate and
individual deeds in regards to their shares and sold portions thereof to other
parties. The suit suffers from non-joinder of necessary parties.
C. FINDINGS
7. The Learned Additional District Munsif framed four following issues to be
considered:
a) Whether the settlement deed suggested by the plaintiff is
genuine?
b) Whether the plaintiff cannot claim any right in the suit
property?
c) Whether the plaintiff is entitled to get the relief prayed in
the plaint?
d) What are the relief for which plaintiff is entitled to?
7.1 Placing reliance upon the deposition of PW1 (Gopalakrishnan), the first
issue was decided in favour of the plaintiff and the First Settlement Deed was
upheld as genuine. Also, DW1 (Vasantha) in her deposition had not completely
denied the execution and genuineness of First Settlement Deed. After considering
both, the First and the Second Settlement Deeds, it held that Raghavulu Naidu
and Munusamy Naidu must have executed the Second Settlement Deed in favour
5| Civil Appeal No. 3854 of 2014
of Thayammal as the Second Settlement Deed could not be executed without the
first deed having been in existence.
7.2 In regard to the second issue, it was observed that plaintiff himself has
admitted the execution of Second Settlement Deed and that possession was
handed over to Thayammal. Plaintiff has not taken any action in respect of the
document executed in the year 1974 and filed the suit in the year 1993 and held
that the suit is barred by Limitation and the rights of the plaintiff were abated.
7.3 The third and fourth issues were decided against the plaintiff since he
cannot claim any rights in the suit property, therefore, the declaration cannot be
made in respect of one-half of the defendant’s share in the suit property after her
lifetime would come to the plaintiff.
PROCEEDING BEFORE THE FIRST APPELLATE COURT
8. Two following questions were considered by the First Appellate Court:
a) Whether the plaintiff is the legal heir of Saroja Ammal?
b) Whether the plaintiff is entitled for the share in the suit
property?
8.1 It was held that the plaintiff has never taken any steps to revoke various
transactions that have taken place in regard to the suit properties. He was also
unaware about the real possession of the properties in question. Further, it was
observed that the plaintiff failed to prove dispossession within a period of twelve
years, i.e. the time period within which the claim of adverse possession has to be
made.
6| Civil Appeal No. 3854 of 2014
8.2 In the above terms, the judgment and decree of the Trial Court was
confirmed and the appeal was dismissed.
PROCEEDING BEFORE THE HIGH COURT
9. The High Court under Second Appeal framed the following substantial
questions of law:
a) Whether in law the courts below are right in failing to see that
under Section 19 of the Transfer of Property Act, a vested interest
is not defeated by the death of the transferee before the possession.
b) Whether in law the courts below are not wrong in omitting to
see that the matter in issue would be squarely covered by the
illustrations (i) and (iii) of Section 119 of the Indian Succession
Act?
c) Whether in law the courts below are right in failing to see that
a limited interest owner could not prescribe title by adverse
possession as held in AIR 1961 SCC 1442?
9.1 Having taken note of various decisions, the learned Single Judge held that
the interest vested in Saroja was full and not life interest. Therefore, upon her
death,, the interest does not revert to the settlor. In other words, that Saroja died
before her interest stood fructified, is an incorrect statement. It is only the right
of enjoyment that stood postponed till the life interest of Raghavulu Naidu and
Munusamy Naidu.
9.2 On the question of limitation, it was observed that the documents executed
between Thayammal, her sons and subsequently, Pavanummal and Vasantha,
were only in respect of life interest i.e. a limited right. The other two deeds of
7| Civil Appeal No. 3854 of 2014
settlement executed after the First Settlement Deed are against or beyond the
competency of the executants and therefore, not binding on the plaintiff. That
being the case the requirement of twelve years within which to initiate a suit, does
not arise. Further, it was held that since, in the suit, the life estate holder has been
impleaded in the suit and Gopalakrishnan had the option of filing the suit even
after her lifetime, the same is not barred by limitation.
9.3 It was in such terms that it was held that according to the First Settlement
Deed the plaintiff will be entitled to half share of the property after the lifetime
of Vasantha, a life estate holder.
SUBMISSIONS
10. We have heard at length, Mr. Dama Seshadri Naidu, learned senior counsel
for the Appellants and Mr. V. Ramasubramanian, learned counsel for the
Respondents. The main contentions urged have been recorded as under:-
A. APPELLANTS
(i) It is submitted that all questions raised in this Appeal are pure questions of
law and in accordance with Yeswant Deorao Deshmukh v. Walchand
Ramchand Kothari(3-Judge Bench)8 and National Textile Corporation Ltd. v.
Nareshkumar Badrikumar Jagad(2-Judge Bench)9, a question of law can be
raised at any stage.
8
1950 SCR 852
9
(2011) 12 SCC 695
8| Civil Appeal No. 3854 of 2014
(ii) It is urged that the original plaintiff (Gopalakrishnan) lacked a cause of
action. Since the suit was filed while Pounammal was alive, even if his right is
termed as ‘vested’, the same does not become enforceable till her death. In other
words, till 2004 no right stood accrued in favour of the plaintiff. Reference was
made to Fateh Bibi v. Char̥an Dass (3-Judge Bench)10. Further, upon such
rights having accrued, no application to amend the plaint was filed. Any which
way, if he had by amendment, sought the relief of possession, it would be as if an
entirely new cause of action is sought to be introduced amounting to substitution,
which ought not to be allowed. Reference was made to M/s Ganesh Trading Co.
v. Moji Ram(2-Judge Bench)11.
(iii) As per Section 34 of the Specific Relief Act, 196312 the declaration of a
right or status is a matter of discretion. However, the proviso restricts the
application of such discretion in terms that it is not to be exercised when the
complainant seeks only a declaration of title when he is able to seek further relief.
Reference is made to Ram Saran Anr. v. Ganga Devi (3-Judge Bench)13,
Vinay Krishna v. Keshav Chandra Anr. (3-Judge Bench)14 and UOI v.
Ibrahim Uddin (2-Judge Bench)15.
(iv) It is submitted that Article 65 Explanation (a) read with Section 27 of the
Limitation Act, 1963 hits the right of Gopalkrishnan. Succession to the estate only
10
(1970) 1 SCC 658
11
(1978) 2 SCC 91
12
“SRA, 1963”
13
(1973) 2 SCC 60
14
(1993) Supp 3 SCC 129
15
(2012) 8 SCC 148
9| Civil Appeal No. 3854 of 2014
accrues on the death of the life estate holder which was in 2004. Till date, no suit
stands filed. The learned senior counsel relied on Goplakrishna (Dead) Through
LRs v. Narayanagowda(Dead) Through LRs(2-Judge Bench) 16.
(v) It is argued that the right of Saroja created as per the First Settlement Deed
was in fact a contingent interest. It states that if Munusamy has a male heir then
one half will belong to him and Saroja will get the other half after the life of
Raghavulu and Munusamy. Therefore, on her death in 1951, her interest was spes
successionis i.e. it did not achieve concrete form and is only an expectation of
succeeding. The contingency upon which Saroja’s interest rests is two-fold;
Munusamy either having or not having children. If he does, they would get half
share; if he doesn’t then two eventualities exist: half of Munusamy’s share goes
to Saroja upon his death, and the other half after the life interest of Pavunammal
is exhausted, goes to Saroja, the remainder woman. Reliance is placed on
Harmath Kaur v. Inder Bahadur Singh17. Further, reliance is placed on
Mahadeo Prasad Singh18 to state that when there is an expectation simpliciter of
succession, neither a transfer nor a contract to transfer is permissible.
16
(2019) 4 SCC 592
17
AIR 1922 PC 403
18
AIR 1931 PC 1989
10| Civil Appeal No. 3854 of 2014
B. RESPONDENTS
(i) The fact that the First Settlement Deed was acted upon i.e. the rights given
to two sons of Thayammal were returned to her by a subsequent deed in 1952,
shows that the first one gave rights in presenti. Therefore, in Saroja rests a
‘vested’ right as per Section 19 of the Transfer of Property Act, 1882 19, a vested
right once accrued cannot be defeated by the death of the transferee prior to
possession. Reference is made to Sreenivasa Pai v. Saraswathi Ammal(2-
Judge Bench)20.
(ii) The Second Settlement Deed reverting the life interest awarded to the two
sons only gives Thayammal a life interest and therefore subsequent settlement
deeds were non est in law and thus need not be challenged.
(iii) So far as the non-seeking of relief within twelve years is concerned, it is
submitted that the possession of the property was only available to Gopalkrishnan
upon the death of Pavunammal (in 2004). Since a suit is pending, the limitation
for seeking possession is arrested. The plea of adverse possession will be
applicable only if the possession with the opposing party had become adverse on
the date of the plaint. The learned counsel relies on Tribhuvan Shankar v.
Amrutlal (2-Judge Bench)21.
19
“TPA”
20
(1985) 4 SCC 85
21
(2014) 2 SCC 788
11| Civil Appeal No. 3854 of 2014
(iv) The enjoyment of the property bequeathed on Raghavulu and Munusamy
was in the nature of life interest. The Second Settlement Deed, therefore, is hit by
Section 6(d) of TPA. They cannot convey a better title than they have received.
(v) None of the conditions mentioned in Section 126, TPA for
revocation/suspension of settlement are met in the present case, meaning thereby
that the settlement cannot be revoked.
(vi) Since the title to the properties stood vested in Saroja, Gopalakrishnan had
cause of action to file a suit for declaration. The reason for filing of the suit in
1993 is a settlement deed executed by Pavunammal in favour of Vasantha. Since
the former was alive the suit was filed without seeking the relief of possession. It
is submitted that the proviso uses the term ‘further relief’ which implies that such
relief had to be available on the date of filing the plaint which it was not as
possession rested with Pavunammal therefore, a suit only for declaration was
maintainable on the date of filing.
(vii) Reliance on Section 213 of the Indian Succession Act, 1925 is
misconceived as the same is only applicable to wills covered by Section 57 (a)
and (b) of the said Act i.e wills executed within the local limits of the civil
jurisdiction of the High Courts of Bombay and Madras.
QUESTIONS FOR OUR CONSIDERATION
11. Various contentions have been canvassed by either party to the dispute.
However, if this Court is to decide those issues, two questions must be considered
at the threshold. They are:-
12| Civil Appeal No. 3854 of 2014
(i) Whether Gopalakrishnan’s suit for declaration based on the First
Settlement Deed, eventually filed in the year 1993 barred by limitation?
(ii) Whether the suit for declaration simpliciter was maintainable in view of
Section 34 of the SRA, 1963?
To emphasise, we restate that if the answer to the aforementioned questions is in
the affirmative, we need not refer to the other contentions raised across the bar.
ANALYSIS CONSIDERATION
ISSUE 1
12. The provisions of the Limitation Act, 1963 relevant to the instant dispute,
i.e, Section 27 and Articles 58 and 65 of the First Schedule to the Act, are
reproduced hereinbelow for ready reference:-
“27. Extinguishment of right to property.—At the determination of
the period hereby limited to any person for instituting a suit for
possession of any property, his right to such property shall be
extinguished.
Art. Description of suit Period of Time from
limitation which period
begins to run
58. To obtain any other Three years When the
declaration. right to sue
first accrues.
65. For possession of Twelve years When the
immovable property or any possession of
interest therein based on the defendant
title. becomes
adverse to the
plaintiff.
Explanation.- For the purposes of this article–
(a) Where the suit is by a remainderman, a reversioner (other than a landlord)
or a devisee, the possession of the defendant shall be deemed to become
adverse only when the estate of the remainderman, reversioner or devisee,
as the case may be, falls into possession;…”
13| Civil Appeal No. 3854 of 2014
13. We notice that before us, are different interpretations of when the limitation
period would expire thereby making the possession of the suit property, hostile
to the rights supposedly vesting in Gopalakrishnan, as the heir of Saroja upon
whom, the First Settlement Deed vested a right in the property. The learned Trial
Court observed that, given the contention of the original plaintiff
(Gopalakrishnan) that the Second Settlement Deed was invalid, he ought to have
challenged the transfer caused thereby within 12 years of such date. Further, it
was observed that another possibility of challenge arose in 1974 when Munasamy
executed a settlement deed in favour of Vasantha and subsequently in 1976, when
another deed was executed in favour of his wife, Pavanuaamal, his daughter. On
both these occasions, the heir of the alleged vested interest of Saroja, was silent.
Therefore, on both counts the suit filed by Gopalakrishnan was barred by
limitation. The First Appellate Court agreed with this reasoning.
14. On the other hand, the learned senior counsel for the Appellants has
contended, if at all, Gopalakrishnan has a right in the disputed property, then the
period of limitation for establishing the adverse possession of Vasantha began in
the year 2004 upon the death of the life estate holder i.e, Pavanuaamal, then by
2016 Vasantha had perfected the title by adverse possession. Since no suit for
recovery of possession stands filed till date, Gopalakrishnan’s claim today is
barred by limitation.
15. The question before us is, from when will the period of limitation run, for
Gopalakrishnan to stake a claim on the properties?
14| Civil Appeal No. 3854 of 2014
16. If the period of limitation is to run from the date of the Second Settlement
Deed, then the rights should be extinguished in 1964. If the same were to run
from either 1974 or 1976, then after 1986 or 1988 respectively, Gopalakrishnan
had no right in the property on the plea of adverse possession.
17. We notice that this Court in Gopalakrishna (supra) had observed that a
reversioner ordinarily must file a suit for possession within 12 years from the
death of the limited heir or widow. That metric being applied to the instant facts,
it is after the death of Pavunammal, that the reversioner, or in this case the heir of
the reversioner (Gopalakrishnan) ought to have filed the suit. The suit, the subject
matter of appeal before us is a suit for declaration simpliciter and not possession.
So, the possession still rests with heir of Pavunammal. The twelve-year period
stood expired in 2016 (with the death of Pavanummal in the year 2004) therefore,
in our considered view, the suit is barred by limitation, which was filed in 1993.
18. The learned counsel for the respondents contended that since the suit stood
filed in respect of the property, the clock for adverse possession stopped ticking.
He relied on Tribhuvanshankar (supra) to buttress this claim.
19. A perusal of the said decision shows a reference has been made to Sultan
Khan v. State of MP22 to hold that if a suit for recovery of possession has been
filed then the time period for adverse possession is arrested. The instant decision
is distinguishable from the current set of facts on two grounds: one, that the
22
1991 MP LJ 81
15| Civil Appeal No. 3854 of 2014
holding of the Madhya Pradesh High Court was in respect of Section 248 of the
MP Land Revenue Code and had been referenced in an appeal arising from the
State of MP itself; two, in the present facts, Gopalakrishnan has filed only a suit
for declaration and not one for possession. The said declaration suit was filed in
the year 1993. It was after the death of Pavunammal (in 2004) that the relief of
possession became available to him. However, no such relief has been claimed.
This decision does not in any way support the claim of the respondents.
20. In Saroop Singh v. Banto (2-Judge Bench)23, this Court observed that
Article 65 states that the starting point of limitation does not commence from the
date when the right of ownership arises to the plaintiff but commences from the
date the defendant’s possession becomes adverse. Further relying on Karnataka
Board of Wakf v. Govt. of India (2-Judge Bench)24, it observed that the
physical fact of exclusive possession and the animus possidendi to hold as owner
in exclusion to the actual owner are the most important factors that are to be
accounted in cases related to adverse possession. Plea of adverse possession is
not a pure question of law but a blend of fact and law. Therefore, a person who
claims adverse possession should show : (a) on what date he came into
possession; (b) what was the nature of his possession; (c) whether the factum of
possession was known to the other party; (d) how long his possession has
continued; and (e) his possession was open and undisturbed. A person pleading
23
(2005) 8 SCC 330
24
(2004) 10 SCC 779
16| Civil Appeal No. 3854 of 2014
adverse possession has no equities in his favour. Since he is trying to defeat the
rights of the true owner, it is for him to clearly plead and establish all facts
necessary to prove his adverse possession.
21. This Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan
(2-Judge Bench)25, reiterating the observations made in P.T. Munichikkanna
Reddy v. Revamma (2-Judge Bench)26 in respect of the concept of adverse
possession observed that efficacy of adverse possession law in most jurisdictions
depends on strong limitation statutes by operation of which, right to access the
court expires through efflux of time. As against the rights of the paper-owner, in
the context of adverse possession, there evolves a set of competing rights in
favour of the adverse possessor who has, for a long period of time, cared for the
land, developed it, as against the owner of the property who has ignored the
property. Modern statutes of limitation operate, as a rule, not only to cut off one’s
right to bring an action for the recovery of property that has been in the adverse
possession of another for a specified time but also to vest the possessor with title.
The intention of such statutes is not to punish one who neglects to assert rights
but to protect those who have maintained the possession of property for the time
specified by the statute under a claim of right or colour of title.
22. In Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn.27, (2-Judge
Bench) while discussing the object of Limitation Act, this Court opined that:
25
(2009) 16 SCC 517
26
(2007) 6 SCC 59
27
(1971) 2 SCC 860
17| Civil Appeal No. 3854 of 2014
“ ….The law of limitation appertains to remedies because the rule is
that claims in respect of rights cannot be entertained if not
commenced within the time prescribed by the statute in respect of
that right. Apart from Legislative action prescribing the time, there
is no period of limitation recognised under the general law and
therefore any time fixed by the statute is necessarily to be arbitrary.
A statute prescribing limitation however does not confer a right of
action nor speaking generally does not confer on a person a right to
relief which has been barred by efflux of time prescribed by the law.
The necessity for enacting periods of limitation is to ensure that
actions are commenced within a particular period, firstly to assure
the availability of evidence documentary as well as oral to enable
the defendant to contest the claim against him; secondly to give
effect to the principle that law does not assist a person who is
inactive and sleeps over his rights by allowing them when
challenged or disputed to remain dormant without asseting them in
a court of law. The principle which forms the basis of this rule is
expressed in the maximum vigilantibus, non dermientibus, jura
subveniunt (the laws give help to those who are watchful and not to
those who sleep). Therefore the object of the statutes of limitations
is to compel a person to exercise his right of action within a
reasonable time as also to discourage and suppress stale, fake or
fraudulent claims While this is so there are two aspects of the
statutes of limitation the one concerns the extinguishment of the
right if a claim or action is not commenced with a particular time
and the other merely bare the claim without affecting the right which
either remains merely as a moral obligation or can be availed of to
furnish the consideration for a fresh enforceable obligation. Where
a statute, prescribing the limitation extinguishes the right, it affects
substantive rights while that which purely pertains to the
commencement of action without touching the right is said to be
procedural.…”
(Emphasis Supplied)
23. Part III of the Schedule to the Limitation Act details the time period within
which the declarations may be sought for: (a) declaration of forgery of an
instrument either issued or registered; (b) declaring an adoption to be invalid or
never having taken place; and (c) to obtain any other declaration. Point (c) or in
other words Article 58 governs the present dispute. This Court has in Shakti Bhog
Food Industries Ltd. v. Central Bank of India28, (3-Judge Bench) taken note
28
(2020) 17 SCC 260
18| Civil Appeal No. 3854 of 2014
of Article 58 of the Limitation Act 1963 vis-a-vis Article 113(Any suit for which
no period of limitation stands provided in the Schedule) and observed that the
right to sue accrues ‘from the date on which the cause of action arose first’. In
the present case, the suit for declaration was filed in 1993. This implies that the
cause of action to seek any other declaration i.e. a declaration of Gopalakrishnan
in the property, should have arisen only in the year 1990. There is nothing on
record to show any cause of action having arisen at this point in time. The possible
causes of action would be at the time of the Second Settlement Deed (1952) or
Munusamy’s deed of settlement in favour of Pavunammal(1976) or at the time of
Pavunammal’s vesting of the property in favour of Vasantha (1993) or at the
death of Pavunammal (2004) where apart from declaration, he ought to have
sought the relief of possession as well. It is clear from the record that on no such
possible occasion, a declaration was sought, much less within the stipulated
period of three years.
ISSUE II
24. We now proceed to examine whether the suit for declaration simpliciter
was maintainable in view of Section 34 of the SRA, 1963.
25. Section 34 reads as:
34. Discretion of Court as to declaration of status or right.-
Any person entitled to any legal character, or to any right as to
any property, may institute a suit against any person denying, or
interested to deny, his title to such character or right, and the
Court may in its discretion make therein a declaration that he is
so entitled, and the plaintiff need not in such suit ask for any
further relief:
19| Civil Appeal No. 3854 of 2014
Provided that no Court shall make any such declaration where
the plaintiff, being able to seek further relief than a mere
declaration of title, omits to do so.
(Emphasis Supplied)
26. The learned senior counsel for the appellant has contended that it has been
settled by the Courts below that the appellant has been in possession of the subject
property since 1976. In view of the proviso to Section 34, the suit of the plaintiff
could not have been decreed since the plaintiff sought for mere declaration
without the consequential relief of recovery of possession.
27. The learned counsel for the Respondent, in rebuttal, contended that since
at the time of filing of the suit, the life interest holder was alive, she was entitled
to be in possession of the property and therefore, the Plaintiff not being entitled
to possession at the time of institution of the suit, recovery of possession could
not have been sought.
28. We now proceed to examine the law on this issue. As submitted by the
learned senior counsel for the Appellant, in Vinay Krishna v. Keshav Chandra
(2-Judge Bench)29, this Court while considering Section 42 of the erstwhile
Specific Relief Act, 1877 to be pari materia with Section 34 of SRA, 1963
observed that the plaintiff’s not being in possession of the property in that case
ought to have amended the plaint for the relief of recovery of possession in view
of the bar included by the proviso.
29
1993 Supp (3) SCC 129
20| Civil Appeal No. 3854 of 2014
29. This position has been followed by this Court in Union of India v.
Ibrahim Uddin (2-Judge Bench)30, elaborated the position of a suit filed without
the consequential relief. It was observed:
“55. The section provides that courts have discretion as to
declaration of status or right, however, it carves out an exception that
a court shall not make any such declaration of status or right where
the complainant, being able to seek further relief than a mere
declaration of title, omits to do so.
56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60] this Court had
categorically held that the suit seeking for declaration of title of
ownership but where possession is not sought, is hit by the proviso
of Section 34 of the Specific Relief Act, 1963 and, thus, not
maintainable. In Vinay Krishna v. Keshav Chandra [1993 Supp (3)
SCC 129] this Court dealt with a similar issue where the plaintiff was
not in exclusive possession of property and had filed a suit seeking
declaration of title of ownership. Similar view has been reiterated
observing that the suit was not maintainable, if barred by the proviso
to Section 34 of the Specific Relief Act. (See also Gian Kaur v.
Raghubir Singh [(2011) 4 SCC 567)
57. In view of the above, the law becomes crystal clear that it is not
permissible to claim the relief of declaration without seeking
consequential relief.
58. In the instant case, the suit for declaration of title of ownership
had been filed, though Respondent 1-plaintiff was admittedly not in
possession of the suit property. Thus, the suit was barred by the
provisions of Section 34 of the Specific Relief Act and, therefore,
ought to have been dismissed solely on this ground. The High Court
though framed a substantial question on this point but for unknown
reasons did not consider it proper to decide the same.”
30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead) thr.
LRs (2-Judge Bench)31, the purpose behind Section 34 was elucidated by this
Court. It was observed that the purpose behind the inclusion of the proviso is to
prevent multiplicity of proceedings. It was further expounded that a mere
declaratory decree remains non-executable in most cases. This Court noted that
30
(2012) 8 SCC 148
31
(2014) 14 SCC 502
21| Civil Appeal No. 3854 of 2014
the suit was never amended, even at a later stage to seek the consequential relief
and therefore, it was held to be not maintainable. This position of law has been
reiterated recently in Akkamma and Ors. v. Vemavathi and Ors. (2-Judge
Bench)32.
31. This Court in Executive Officer, Arulmigu Chokkanatha Swamy Koil
Trust, Virudhunagar v. Chandran and Others (2-Judge Bench)33 while
reversing the High Court decree, observed that because of Section 34 of the SRA,
1963, the plaintiff not being in possession and claiming only declaratory relief,
ought to have claimed the relief of recovery of possession. It was held that the
Trial Court rightly dismissed the suit on the basis that the plaintiff has filed a suit
for a mere declaration without relief for recovery, which is clearly not
maintainable.
32. That apart, it is now well settled that the lapse of limitation bars only the
remedy but does not extinguish the title. Reference may be made to Section 27 of
the Limitation Act. This aspect was overlooked entirely by the High Court in
reversing the findings of the Courts below. It was not justified for it to have
overlooked the aspect of limitation, particularly when deciding a dispute purely
civil in nature.
33. Adverting to the facts of the present case, on a perusal of the plaint, it is
evident that the plaintiff was aware that the appellant herein was in possession of
32
2021 SCC Online SC 1146
33
(2017) 3 SCC 702
22| Civil Appeal No. 3854 of 2014
the suit property and therefore it was incumbent upon him to seek the relief which
follows. Plaintiff himself has stated that defendant no. 1 was in possession of the
subject property and had sought to transfer possession of the same to defendant
no.2, thereby establishing that he himself was not in possession of the subject
property. We are not inclined to accept the submission of the learned counsel for
the respondent on this issue. We note that after the death of the life-estate holder
in 2004, there was no attempt made by the original plaintiff to amend the plaint
to seek the relief of recovery of possession. It is settled law that amendment of a
plaint can be made at any stage of a suit34, even at the second appellate stage35.
34. In view of the above, the second issue is answered in the favour of the
Appellants herein and against the Respondent.
CONCLUSION
35. As evidenced from the discussion hereinabove, the judgment impugned
before us fails scrutiny at the threshold stage itself, i.e. on limitation as also
maintainability of the suit. This being the case, the judgment of the Trial Court in
O.S. No. 726 of 1993 as also the First Appellate Court in S.C. Appeal Suit 47/99
FTC-II Appeal Suit 113/2002 which dismissed the suit of Gopalkrishnan on the
grounds of limitation cannot be faulted with.
36. The impugned judgment in Second Appeal No. 1926 of 2004 dated 27th
September 2012 titled as Gopalakrishnan Anr. v. Vasantha Ors. is set
23| Civil Appeal No. 3854 of 2014
aside. The appeal is allowed in the above terms. Pending application(s) if any,
shall stand disposed of. The holding in the judgments of the Learned Trial Court
as also the First Appellate Court are restored.
……..…………………J.
(HRISHIKESH ROY)
……..…………………J.
(SANJAY KAROL)
NEW DELHI;
February 13, 2024.
24| Civil Appeal No. 3854 of 2014
