Madras High Court
Karuppayee Ammal vs Pasupathi Ammal on 27 October, 2006
Equivalent citations: AIR 2007 (NOC) 531 (MAD.), 2007 (2) AJHAR (NOC) 671 (MAD.) 2007 (3) AKAR (NOC) 233 (MAD.), 2007 (3) AKAR (NOC) 233 (MAD.), 2007 (3) AKAR (NOC) 233 (MAD.) 2007 (2) AJHAR (NOC) 671 (MAD.), 2007 (2) AJHAR (NOC) 671 (MAD.)
Author: S.Tamilvanan
Bench: S.Tamilvanan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 27/10/2006 CORAM : THE HONOURABLE MR. JUSTICE S.TAMILVANAN Second Appeal No. 1502 of 1994 Second Appeal No. 1532 of 1994 S.A.No.1502 of 1994 1. Karuppayee Ammal 2. R.Palanisamy ... Appellants Vs. 1. Pasupathi Ammal 2. Shanmugavel ... Respondents S.A.No.1532 of 1994 1. Karuppayee Ammal 2. R.Palanisamy ... Appellants Vs. Pasupathi Ammal ... Respondent Prayer in S.A.No.1502 of 1994 : Second Appeal is filed against the Judgment and Decree of the learned Additional Subordinate Judge, Dindigul, dated 03.11.1993 made in A.S.No.237 of 1993 and as confirmed the Judgment and Decree of the District Munsif of Palani, dated 30.07.1992 made in O.S.No.238 of 1988. Prayer in S.A.No.1532 of 1994 : Second Appeal is filed against the Judgment and Decree of the learned Additional Subordinate Judge, Dindigul, dated 03.11.1993 made in A.S.No.238 of 1993 and as confirmed the Judgment and Decree of the District Munsif of Palani, dated 30.07.1992 made in O.S.No.432 of 1988. !For Appellants .. Mr.R.Vijayakumar for M/s. N.Damodaran ^For Respondents .. Mr.K.Periasamy :COMMON JUDGMENT
S.A.No.1502 of 1994 is directed against the Common Judgment and Decree, dated 03.11.1993 made in A.S.No.237 of 1993 on the file of the Additional Subordinate Judge, Dindigul, confirming the Judgment and Decree dated 30.07.1992, made in O.S.No.238 of 1988 on the file of the District Munsif, Palani.
2. S.A.No.1532 of 1994 is directed against the Common Judgment and Decree, dated 03.11.1993 made in A.S.No.238 of 1993 on the file of the Additional Subordinate Judge, Dindigul, confirming the Judgment and Decree dated 30.07.1992, made in O.S.No.432 of 1988 on the file of the District Munsif, Palani.
3. The appellants in S.A.No.1502 of 1994 are the plaintiffs in the suit in O.S.No.238 of 1988. They filed the suit against the respondents Pasupathi Ammal and Shanmugavel, seeking declaration of title and for consequential injunction against the defendants in the said suit, which was dismissed by the trial court.
4. The appellants in S.A.No.1532 of 1994 are the defendants in the suit in O.S.No.432 of 1988 and also the plaintiffs in the aforesaid suit in O.S.No.238 of 1988. The suit filed by the respondent / plaintiff, Papathi Ammal in O.S.No.238 of 1988 was decreed as prayed for by the trial court.
5. The appellants in S.A.No.1502 of 1994, namely Karuppayee Ammal and Palanisamy are respectively the wife and son of late Ramasamy Gounder. One Nachiammal was widow of Chellappa Gounder, son of Ramasamy Gounder. For the purpose of convenience, the term appellants, plaintiffs have to be construed as the appellants and plaintiffs in S.A.No.1502 of 1994 and O.S.No.238 of 1988. Similarly, the respondents, defendants shall denote the respondents and defendants in the aforesaid S.A.No.1502 of 1994 and O.S.No.238 of 1988.
6. The appellants / plaintiffs have stated that the suit property originally belonged to Ramasamy Gounder, husband of Karuppayee Ammal and father of Palanisamy, that Ramasamy Gounder's first wife had predeceased him and hence he married the appellant Karuppayee Ammal. Late Chellappa Gounder was his son born through his first wife, who had married Nachiammal and died in the year 1934. On 07.09.1935, Ramasamy Gounder, the father of Chellappa Gounder and father-in-law of Nachiammal, executed a document, original of Ex.A1, whereby he gave the suit property for her enjoyment till her life time, towards her maintenance. The said document reads as "Jeevanamsa Pathiram". As per this averments of the said document, after life time of Nachiammal, the said Ramasamy Gounder or his legal heirs would get absolute right in the property.
7. According to the appellants, the said Nachiammal was given only life estate, before the Hindu Women's Right to property Act came into force in the year 1956 and that the right was given to Nachiammal, under the original of Ex.A1, to enjoy the property till her life time and as per Ex.A1, Nachiammal had no right of alienation of the suit property. It is not in dispute that Nachiammal died on 22.02.1988. The first respondent Pasupathi Ammal is the brother's daughter of Nachiammal and the second respondent Shanmugavel is her husband. The suit in O.S.No.238 of 1988 was filed by the appellants / plaintiffs against the said respondents, claiming declaration of title and consequential injunction. The written statement filed by the first respondent Pasupathiammal was adopted by her husband, the second defendant. In the written statement and in the suit filed by the first respondent against the appellant herein in O.S.No.432 of 1988, she has stated that Nachiammal had been a minor, when her marriage with Chellappa Gounder was performed and nearly six months after the marriage, Chellappa Gounder died. The suit property and other properties were given for the maintenance of Nachiammal by Rangasamy Gounder, her father-in-law, on 07.09.1995, as pre existing right. According to her, as per the Hindu Succession Act,1956, (Act 39 of 1956) the limited right is extended as absolute right and the respondent / defendant being her brother's daughter, Nachiammal was under the care and protection of the first respondent till the date of her death. Hence, on 05.01.1988, Nachiammal executed a Registered Will bequeathing the property in favour of the first respondent, Pasupathiammal and after the death of Nachiammal, the aforesaid will came into effect and the first respondent / first defendant was in possession and enjoyment of the property as absolute owner of the same. On the aforesaid pleadings, the respondent has prayed for dismissal of the suit filed by the appellants in O.S.No.238 of 1988 and to decree the suit filed by her in O.S.No.432 of 1988. After considering the oral and documentary evidence adduced by both sides and after hearing the arguments advanced by both sides, the trial court dismissed the suit filed by Karuppayee Ammal and Palanisamy, the appellants herein and decreed the suit filed by the first respondent Pasupathi Ammal, aggrieved by which two separate appeals were filed by the appellants. The first appellate court confirmed the Judgment and Decree passed by the trial court and dismissed the appeal by a common judgment. Against which the Second Appeals have been preferred by the appellants.
8. These Second Appeals have been admitted on the following Substantial Questions of Law :
" Whether the sale deed executed in favour of the testator of the respondents by Ramasamy Gounder confers only to restrict the right in the property falling under Section 14 (2) of the Hindu Succession Act ?"
9. The learned counsel appearing for the appellants contented that as per section 14 (1) of the Hindu Succession Act, 1956, there was no pre existing right enjoyed by Nachiammal. It was only a right given for her maintenance under Ex.A1 till her life time, by Ramasamy Gounder and therefore, according to the learned counsel for the appellants, the right given to Nachiammal, under Ex.A1, by Ramasamy Gounder would not become an absolute right to the property, so as to execute the will in favour of the first respondent Pasupathi Ammal. The learned counsel further contended that after the death of Nachiammal , on 22.02.1988 being the legal heirs of Ramasamy Gounder, the appellants herein became the absolute owners of the property and that the Will Ex.B32, executed by Nachiammal in favour of the first respondent would not confer any right on the first respondent.
10. In order to enlighten this Court on the legal aspect, the following decisions were relied on by both the learned counsel.
(1) 2004 (9) SCC 302 (Ram Vishal v. Jagannath) (2) 1997 (5) SCC 460 (Venkamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma) (3) AIR 2004 (AP) 117 (P.Rameswara Rao v. I.Sanjeeva Rao)
11. The Honourable Supreme Court of India has held in the decision reported in 2004 (9) SCC 302 (Ram Vishal v. Jagannath) as follows at page number 307 :
" 16...As has been held by this Court, a pre-existing right is a sine qua non for conferment of a full ownership under Section 14 of the Hindu Succession Act. The Hindu female must not only be possessed of the property but she must have acquired the property. Such acquisition must be either by way of inheritance or devise, or at a partition or "in lieu of maintenance or arrears of maintenance" or by gift or by her own skill or exertion, or by purchase or by prescription..."
12. Section 14 of the Hindu Succession Act reads as follows :
"14. Property of a female Hindu to be her absolute property - (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation - In this sub-section, 'property' included 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 restricted estate in such property"
13. In the decision reported in 1997 (5) SCC 460 (Venkamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranganayakamma), the Honourable Supreme Court, has held that it is a well settled legal proposition that the right of a Hindu woman, under any instrument, if it is a recognition of pre existing right, though it is a limited right prescribed under an instrument, subsequently the same gets engaged into an absolute right as per Section 14 (1) of the Hindu Succession Act, 1956. On the other hand, if a right is acquired for the first time under a document, then, sub-section (2) of Section 14 of the Act is applicable and as such the right so acquired under the instrument by operation of sub section (2) of Section 14 does not get enlarged.
14. In the Judgment reported in 1996 (8) SCC 525 (C.Masilamani Mudaliar v. Idol of Sri Swaminathaswami Swaminathaswami Thirukoil) at page 538 this court has held as follows :
" As held by this Court, if the acquisition of the property attracts sub-section (1) of Section 14, sub-section (2) does not come into play. If the acquisition is for the first time, without any vestige of pre-existing right under the instrument, document or device etc, then sub-section (2) of Section 14 gets attracted. Sub-section (2) being in the nature of an exception, it does not engulf and wipe out the operation of sub-section (1). Sub-section (2) of Section 14 independently operates in its own sphere. The right to disposition of property by a Hindu under Section 30 is required to be understood tin this perspective and if any attempt is made to put restriction upon the property possessed by a Hindu female under an instrument, document or device, though executed after the Act had come into force, it must be interpreted in the light of the facts and circumstances in each case and to construe whether Hindu female acquired or possessed the property in recognition of her pre-existing right or she gets the rights for the first time under the instrument without any vestige of pre-existing right. If the answer is in the positive, sub-section (1) of Section 14 gets attracted..."
15. In the light of the decisions referred above, it is clear that after the commencement of Hindu Succession Act, 1956, any property possessed by a Hindu woman, with restricted right, whether acquired before or after the commencement of the Act, shall be held as absolute right, provided that it must be a pre existing right, as per Sub-Section (1) of Section 14 of the said Act and that the same has to be decided on the facts and circumstances of each case.
16. The learned counsel appearing for the appellants would contend that Ramasamy Gounder had given the property under Ex.A1 to Nachiammal, only for her maintenance till her life time and therefore, Section 14 (1) of the Hindu Succession Act is not attracted in view of the commencement of the Hindu Succession Act, 1956, and according to him, Nachiammal had never become the absolute owner of the property. The learned counsel for the appellant further contended that the courts below have not considered the genuineness of the Will Ex.B32, was not established by the first respondent.
17. The first appellant, who was examined as P.W.1 has admitted in her cross examination that the suit property was the ancestral property of Ramasamy Gounder. Therefore, late Chellappa Gounder, husband of Nachiammal had right in the property by birth, along with his father Ramasamy Gounder, as a member of the Hindu joint family. After the demise of Chellappa Gounder, his wife Nachiammal was the legal heir of the said Chellappa Gounder. Therefore, in the property given to her towards maintenance under Ex.A1, with the restricted right of life estate, she had pre existing right, as contended by the learned counsel for the respondent. There is no evidence available on record to show that the property given to Nachiammal, under Ex.A1 ,was more than the share of her husband, late Chellappa Gounder. Further, it has been admitted by P.W.1 and P.W.2 that there were other properties belonged to the joint family of Ramasamy Gounder nand his son Chellappa Gounder. The first appellant has admitted in her evidence that the suit property was the ancestral property of Ramasamy Gounder. Therefore, as found by the court below, Nachiammal had pre-existing right in the property, being the widow of Chellappa Gounder.
18. In order to prove Ex.B32 , the original registered will was produced and marked as a document and to prove the execution and genuineness, the attestors of the Will, namely S.Arumugam and Eswara Rajendran were examined as D.W.4 and D.W.5. As found by the courts below, D.W.4 and D.W.5 have categorically deposed that while executing the Will, Ex.B32, Nachiammal was in a sound state of mind to execute the same and that the said Nachiammal had affixed her thumb impression in Ex.B32 in the presence of the said witnesses.
19. The trial court after considering the evidence of the attestors to Ex.B32, will, and the other documents marked on the side of the first respondent, has held that the genuineness of the will has been proved by the first respondent and the possession of the property was also with the first respondent, pursuant to the registered will, Ex.B32.
20. As the first respondent Pasupathi Ammal has established her case by oral and documentary evidence, that Nachiammal had pre existing right in the property and that Ex.B32, registered will, as a genuine document executed by the Testatrix Nachiammal, that attracts Section 14 (1) of Hindu Succession Act, 1956, whereby Nachiammal had absolute right. I, therefore, answer the Substantial Question of Law framed in this Second Appeal in favour of the first respondent Pasupathi Ammal and against the appellants Karuppayee Ammal and Palanisamy.
21. As I could find no illegality or infirmity to interfere with the Judgment and Decree rendered by the courts below, the appeal fails and hence, I am of the view confirming the common Judgment and Decree, dated 03.11.1993, passed in A.S.No.237 of 1993 and A.S.No.238 of 1993, by the court below and dismiss the appeals.
22. In the result, confirming the common Judgment and Decree, dated 03.11.1993, passed in A.S.No.237 of 1993 and A.S.No.238 of 1993 by the court below, the Second Appeals are dismissed. However, there is no order as to costs.
tsvn To
1. The Additional Subordinate Judge, Dindigul.
2. The District Munsif Palani.