Madras High Court
Thimma.V.Saradha Ammal (Died) vs M.N.Kumareshbabu on 5 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
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.
.