Madras High Court
Jayamariammal (Died) vs Maria Pushpam (Died) on 22 December, 2022
2023/MHC/100
S.A.No.1274 of 1997
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.12.2022
CORAM
THE HON'BLE MR.JUSTICE S.SOUNTHAR
S.A.No.1274 of 1997
1.Jayamariammal (Died) ... Appellant/
3rd Respondent/
3rd Defendant
2.Chinnappan (Died)
3.Mariya Savari Raj
4.Lillimery Dasher
5.Mariya Lawrence
6.Mariya Jayapaul ... Appellants
(Appellants 2 to 6 are brought on record as legal representatives of
deceased sole appellant, vide Court order, dated 03.10.2017, made in
M.P(MD)Nos.1 to 3 of 2012 in S.A.No.1274 of 1997)
(Memo, dated 14.12.2022 (filed on 15.12.2022) in USR No.36064 is
recorded, as second appellant died, and the appellants 3 to 6, who are
already on record, are recorded as legal representatives of the deceased
second appellant vide Court order, dated 19.12.2022, made in S.A.No.
1274 of 1997)
Vs.
1.Maria Pushpam (Died)
2.Francis Servai (Given up)
3.Velanganni
4.Selvaraj (Died)
5.Sesu
6.Antony Ammal
7.Christina Esthar
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S.A.No.1274 of 1997
8.Earnest Raja ... Respondents
(Respondents 4 & 5 are brought on record as legal representatives of the
deceased first respondent vide order, dated 25.03.2009, made in
C.M.P.No.8141 of 2001 in S.A.No.1274 of 1997)
(Respondents 6 to 8 are brought on record as legal representatives of
the deceased fourth respondent vide Court order, dated 06.01.2022,
made in C.M.P(MD)Nos.11456 to 11458 of 2017 in S.A.No.1274 of
1997)
PRAYER : Second Appeal filed under Section 100 of the Civil
Procedure Code, against the judgment and decree of the learned Principal
District Judge, Dindigul, Anna District, dated 31.01.1997, made in
A.S.No.50 of 1995, reversing the judgement and decree of the learned
Additional District Munsif, Dindigul, dated 24.06.1994 in O.S.No.1075
of 1989.
For Appellants : Mr.M.P.Senthil
For R-1 & R-4 : Died
For R-2 : Given up
For R-3 : No appearance
For R-5 to R-8 : Mr.H.Lakshmi Shankar
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S.A.No.1274 of 1997
JUDGMENT
The third defendant in the suit is the appellant herein.
2. The first respondent / plaintiff had filed O.S.No.1075 of 1989 on the file of the Additional District Munsif, Dindigul, for declaration of possessory title and for recovery of possession. The suit was dismissed by the trial Court and on appeal filed by the first respondent, it was allowed. Aggrieved by the same, the third defendant is before this Court.
3. According to the first respondent / plaintiff, the suit property originally belonged to mother-in-law of the first respondent and mother of the second respondent, namely, Seshaliammal and she executed a settlement deed, dated 08.02.1962, marked as Exhibit A1, giving life estate in favour of the first and second respondents with absolute estate to their legal heirs. The said settlement deed was executed in contemplation of marriage between the first and second respondents. After some time, there was a strain in the matrimonial relationship between the first and second respondents and consequently, it ended in a 3/14 https://www.mhc.tn.gov.in/judis S.A.No.1274 of 1997 divorce. At the time of separation, the first respondent executed a release deed releasing her right in the suit property in favour of the second respondent under Exhibit B14, dated 17.09.1965. It was specifically pleaded by the first respondent in her plaint that, at the time of separation, she was made to sign certain documents and details of the same was not known to her. It is the specific case of the first respondent that even after separation, she had been living in the house that situated in the suit property for some time. Since the building in the suit property got dilapidated, the first respondent vacated the same and moved to a rented house. When the first respondent attempted to raise crops in the first item of the suit property, it was resisted by third respondent and appellant. The appellant claimed that she purchased the property from the third respondent and resisted the attempts of the first respondent / plaintiff to cultivate the first item of the suit property. Therefore, the first respondent was constrained to file a suit, seeking declaration of her possessory title over the suit property and for a consequential relief of recovery of possession.
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4. The suit was resisted by the appellant / third defendant by filing a written statement, wherein she admitted execution of settlement deed in favour of the first and second respondents. The appellant had raised a specific plea that first respondent / plaintiff released her entire right over the suit property in favour of second respondent under Exhibit B14, dated 17.09.1965 and hence, she had no right over the suit property. It was further claimed by the appellant that subsequently, second respondent sold the suit property to his brother, third respondent under Exhibit B12, dated 20.06.1966. The third respondent in turn sold the suit property in favour of the appellant under Exhibit B13, dated 20.06.1974. It was the case of the appellant that from the date of her purchase, she had been in possession and enjoyment of the suit property. Thus, the appellant denied the title of the first respondent and prayed for dismissal of the suit.
5. The trial Court after consideration of oral and documentary evidence came to the conclusion that the release deed executed by the first respondent was a valid document and hence, the first respondent after having released her right under Exhibit B14, dated 17.09.1965, not entitled to maintain the suit and consequently dismissed the suit. 5/14 https://www.mhc.tn.gov.in/judis S.A.No.1274 of 1997 Aggrieved by the same, the first respondent had filed the appeal in A.S.No.50 of 1995 on the file of the Principal District Court, Dindigul. The appellant herein filed a Cross Objection questioning the adverse finding against her that sale deed executed by the third respondent in favour of the appellant was not valid.
6. The First Appellate Court reversed the findings of the trial Court and held Exhibit B14 release deed executed by the first respondent was not valid. The First Appellate Court also held that the sale executed by third respondent in favour of the first appellant was not valid to the extent of half share over which life interest was created in favour of first and second respondents. In view of the findings arrived at by the First Appellate Court, the appeal filed by the first respondent / plaintiff was allowed by granting a decree in favour of the first respondent as prayed for in the suit. Aggrieved by the same, the third defendant in the suit filed the present second appeal.
7. At the time of admission, this Court formulated the following substantial questions of law:
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https://www.mhc.tn.gov.in/judis S.A.No.1274 of 1997 "(a) Are not the findings of the Lower Appellate Court that the release deed - Exhibit B14 is not valid contrary to the well settled principles of law under Section 90 of the Evidence Act and Law of Limitation?
(b) Are not the reasoning of the Lower Appellate Court in holding Exhibit B14 as invalid document by relying upon the judgment reported in AIR 1989 AP 34 contrary to the well settled principles of law when once a party executed a registered document, no oral evidence contrary to the terms of that deed is allowed?
(c) Have not the Courts below failed to consider the Appellant's plea of adverse possession, continuous enjoyment of the property for a period of more than 12 years?
(d) Are not the absolute restrictions on alienation under the settlement deed hit by the provisions -- Section 10, 11 and 13 and other provisions of the Transfer of Property Act and Succession Act?"
8. When the matter is taken up for hearing, it is brought to the notice of the Court that pending second appeal, the first respondent / plaintiff died and therefore, her legal representatives were brought on 7/14 https://www.mhc.tn.gov.in/judis S.A.No.1274 of 1997 record as respondents 4 and 5. Subsequently, fourth respondent also died and hence, his legal representatives were brought on record as respondents 6 to 8.
9. The present suit has been filed by the deceased first respondent, seeking declaration of her possessory title and for a recovery of possession. The said declaratory prayer was made based on the life estate conferred on her under Exhibit A1 settlement deed. As per the terms of settlement deed, after death of first and second respondents, who are the life estate holders, the absolute right shall go to their heirs. The possessory title sought for by the deceased first respondent was available only during her life time. On her death, her legal representatives are not entitled to claim any possessory title. On the other hand, by virtue of the vested reminder created under Exhibit A1, they are entitled to claim absolute right. In this second appeal, the respondents 4 to 8 were brought on record only in their capacity as legal representatives of the first respondent, life estate holder. It is not open to the legal representatives to fall back on their own title and continue the present suit. However, it is always open to them to file a fresh suit for appropriate relief based on the right they derive under Exhibit A1.
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10. The First Appellate Court held that deceased first respondent's husband (deceased second respondent) sold half share of suit property to third respondent under Exhibit B12 without mentioning any family necessity and hence, the same was not valid. A perusal of Exhibit B12 make it clear, there is a clear recital in Exhibit B12 to the effect that second respondent's share in suit property was sold to third respondent for meeting family expenses, to discharge family debts and to meet expenses of upbringing minor children. Therefore, observation made by First Appellate Court as if nothing was mentioned in Exhibit B12 is clear misreading of material evidence available on record. Therefore, the finding rendered by First Appellate Court that sale made by second respondent in favour of third respondent under Exhibit B12 was not valid and consequently sale by third respondent in favour of first respondent was also not valid to the extent of half share over which life estate was given to respondents 1 and 2 as it is not based on evidence available on record. The same is liable to be set aside.
11. The learned Counsel for the respondents by relying upon the judgment of the Hon'ble Apex Court reported in 1974 (1) SCC 675 9/14 https://www.mhc.tn.gov.in/judis S.A.No.1274 of 1997 (Shikharchand Jain Vs. Digamber Jain Praband Karini Sabha and Ors.) submitted that the Court can take into consideration the subsequent events and mould the relief in order to do complete justice between the parties. The relevant observation of the Hon'ble Apex Court in paragraph Nos.10 and 11 are as follows:
"10. We now pass on to another aspect of the case. During pendency of this appeal Smt.Rajrani died on December 5, 1965. The appellant first filed C.M.P.No.1377 of 1969 for his substitution in place of Smt.Rajrani, the fifth respondent, as her legal representative. No order has yet been made on this application. Now he has made another application in the course of hearing. By this application he seeks to amend his written statement. He wants to make this addition to the written statement:
12(a) that the gift deed, dated 18.01.1954 was executed by Smt.Rajrani who was a limited owner having a widow's estate on the date of the execution of the gift deed. Assuming though not admitting the said gift deed was valid it is submitted that the above gift could at most enure for the life of the defendant No.5. The plaintiff cannot have any rights in the suit lands after the death of 10/14 https://www.mhc.tn.gov.in/judis S.A.No.1274 of 1997 Smt.Rajrani and the defendant as the sole surviving reversioner becomes the owner of the lands and resist the claim of the plaintiff.
(b) that the genealogy of the family is as under:
Genealogy (omitted) 12(c) that the deceased Smt.Rajrani could not transfer the suit property even for the religious and charitable par-poses as it was the entire property she had and such a transfer is not binding on the defendant after her death.
11. He also prays for the renumbering of present paragraph 12 as paragraph 13 of the written statement. Sri Tarkunde has submitted that if the assertions made in the new paragraph 12 are accepted by the Court, the respondent's suit will have to be dismissed. It is also said that the new situation arising on the death of Smt.Rajrani during pendency of the appeal can be considered by the Court in order to mould the decree in the suit out of which this appeal has arisen. In our view, Mr.Tarkunde, is right in this submission. Ordinarily, a suit is tried in all its stages on the cause of action as it existed on the date of its institution. But it is open to a Court (including a Court of appeal) to take notice of events which have happened after the institution of the suit and afford relief to the parties in the changed circumstances where it is 11/14 https://www.mhc.tn.gov.in/judis S.A.No.1274 of 1997 shown that the relief claimed originally has (1) by reason of subsequent change of circumstances become inappropriate, or (2) where it is necessary to take notice of the changed circumstances in order to shorten the litigation, or (3) to do complete justice between the parties."
12. Therefore, instead of driving the party to a fresh litigation, this Court feels it would be appropriate to set aside the findings of lower Appellate Court and remand the matter back to the file of the trial Court to enable the respondents 5 to 8 to amend the plaint, seeking appropriate relief, if so advised. If any amendment application is filed by the legal representatives of deceased first respondent, the contesting defendants including the appellant are entitled to file counter to the amendment application. In case the amendment application is allowed, they are also entitled to file additional written statement. When scope of suit is enlarged by impleadment of respondents 5 to 8 and in case they choose to amend the prayer in the suit based on their absolute title, it would be appropriate to permit both the parties to lead further evidence. Hence, the parties are at liberty to lead fresh evidence and the trial Court has to decide the suit afresh in the light of the amended pleadings, if any, the evidence available on record and also the evidence to be let in by the 12/14 https://www.mhc.tn.gov.in/judis S.A.No.1274 of 1997 parties after remand. Taking into consideration, the suit is of the year 1989, it is appropriate to direct the trial Court to dispose of the suit within a period of six (6) months from the date of receipt of records from this Court.
13. In view of the discussions made earlier, the judgment and decree passed by the Courts below are set aside and the second appeal stands allowed by remanding the matter back to the file of the Additional District Munsif Court, Dindigul for fresh disposal as indicated above.
There shall be no order as to costs.
22.12.2022
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
btr
To
1.The Additional District Munsif,
Dindigul.
2.The Principal District Judge,
Dindigul, Anna District.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.1274 of 1997
S.SOUNTHAR, J.
btr
Judgment made in
S.A.No.1274 of 1997
Dated:
22.12.2022
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