Madras High Court
Rajendran vs Deivassigamani on 3 July, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 14.06.2018
PRONOUNCED ON : 03.07.2018
CORAM
THE HONOURABLE MR. JUSTICE T.RAVINDRAN
S. A.No.1862 of 2004
Rajendran ... Appellant
Vs.
1. Deivassigamani
2. Rangasami
3. Lakshmi
4. Patturose ... Respondents
(Respondent 4 is given up
as she remained ex-parte)
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 29.03.2004 in A.S.78/2003 on the file of the Principal Sub Court, Villupuram, reversing the judgment and decree of the Principal District Munsif Court, Tirukoilur dated 20.07.2001 in O.S.No.532/95.
For Appellant : Ms.A.Nilaphar
M/s.R.Subramanian
For R1 : Mr.C.Munusamy
For R2 to R4 : No appearance/ Set ex-parte
vide order dated 14.06.2018
*****
JUDGMENT
In this second appeal, challenge is made to the judgment and decree dated 29.03.2004, passed in A.S.78/2003, on the file of the Principal Subordinate Court, Villupuram, reversing the judgment and decree dated 20.07.2001, passed in O.S.No.532/95, on the file of the Principal District Munsif Court, Tirukoilur.
2. The second appeal has been admitted on the following substantial questions of law:
1. Whether in the law the lower appellate Court was right in holding the sale under Ex.A3 invalid during he life time of the settlee life estate holder when under Section 27 of the Transfer of Property Act, the subsequent interest of her daughters was accelerated?
2. Whether in law the lower appellate Court was not wrong in finding that the 3rd respondent was allotted the suit property when as a female member, she had no share in the property alleged to be co-parcenary property?
3. The plaintiff who has laid the suit and succeeded in the trial Court, but lost in the first appellate Court is the appellant in the second appeal. The suit has been laid for the reliefs of declaration and permanent injunction. Briefly stated, according to the plaintiff's case the property located in Survey No.8/6, measuring 0.86 cents originally belonged to Vadivel kounder, the husband of the fourth defendant and according to the plaintiff on 29.01.88, Vadivel kounder had executed a settlement deed in respect of the abovesaid property in favour of the fourth defendant, his wife, granting the life enjoyment in respect of the abovesaid property in favour of the fourth defendant and the remainder interest in favour of his daughters, namely, Malliga, Indira and Amirtha and according to the plaintiff, the fourth defendant, on account of her old age and in order to avoid any dispute amongst her daughters, immediately after the execution of the abovesaid execution deed, divided the abovesaid property into three equal shares in favour of her daughters and accordingly, it is stated by the plaintiff that the three daughters had been enjoying their respective shares allotted to them in the abovesaid property and also the daughters had been maintaining the fourth defendant as such and accordingly, the fourth defendant had not disputed the claim of title of the daughters in respect of the abovesaid property at any point of time and it is stated that Malliga after retaining the two cents in the southern portion, according to the plaintiff, the two sisters namely Malliga and Indira had alienated the suit property in favour of the plaintiff by way of a sale deed dated 04.09.95 for a valid consideration and pursuant to the same, it is only the plaintiff, who has been in possession and enjoyment of the suit property. Whileso, the defendants without any authority, attempted to interfere with the plaintiff's possession and enjoyment of the suit property and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs.
4. The defendants have taken various pleas in the written statement, disputing the claim of title of the plaintiff in respect of the suit property and also denied the abovesaid case of the plaintiff that the two daughters of the fourth defendant had alienated the suit property in favour of the plaintiff and contended that the daughters of the fourth defendant would not be entitled to lay any claim of title to the suit property during the life time of the fourth defendant and accordingly, impugned the title document projected by the plaintiff for claiming title to the suit property and also disputed the claim of possession and enjoyment of the suit property by the plaintiff and accordingly, prayed for the dismissal of the plaintiff's suit.
5. In support of the plaintiff's case, PWs 1 to 3 had been examined, Exs.A1 to A17 were marked. On the side of the defendants, DWs 1 and 2 had been examined, Exs.B1 to B26 were marked. As aboveseen, the trial Court was pleased to decree the suit as prayed for. On appeal, the first appellate Court, on a re-appreciation of the materials placed on record, set-aside the judgment and decree of the trial Court and dismissed the suit laid by the plaintiff. Challenging the same, the present second appeal has been preferred.
6. At the outset, we have to see whether the claim of title to the suit property as projected by the plaintiff is valid in law. According to the plaintiff, the extent of 0.86 cents in the suit survey number originally belonged to Vadivel kounder. It is found that Vadivel kounder had settled the abovesaid property in favour of the fourth defendant granting her life enjoyment and the vested interest had been granted in favour of his daughters, namely, Malliga, Indira and Amirtha and thus, it is found that the fourth defendant is entitled to enjoy the property settled on her till her life time and only after her demise, her daughters would be entitled to lay a claim of title to the property settled in equal shares. However, as per the case of the plaintiff, immediately after the execution of the settlement deed, the fourth defendant, in order to avoid dispute amongst her daughters and also on account of her old age, divided the settled property amongst the three daughters equally. As per the averments projected in the plaint, it is found that the alleged partition said to have been effected by the fourth defendant in favour of her daughters had taken place during 1988 itself i.e., a few days after the execution of Ex.A2 settlement deed dated 29.01.88. From Ex.A1 sale deed dated 19.08.1952, it is found that the suit property had been acquired in the name of Vadivel kounder. The plaintiff claims title to the suit property on the strength of his purchase of the same from Malliga and Indira by way of a sale deed dated 04.09.95, which document has come to be marked as Ex.A3. However, in Ex.A3, there is no reference as to how the alleged vendors namely, Malliga and Indira had acquired title to the property comprised therein. If really, the partition had been effected by the fourth defendant in favour of her three daughters in respect of the property comprised in Ex.A2 and thereafter, the three daughters had been enjoying their respective shares, necessary recitals with reference to the same would have been incorporated in Ex.A3 sale deed. However, nothing has been whispered as to how the title to the property sold had been acquired. If really, the fourth defendant had intended to permit her daughters to enjoy the settled property even during her life time, there would have been a clear effacement of her interest in respect of the settled property in favour of the three daughters. The alleged partition said to have been made by the fourth defendant is stated to be orally effected. However, there is no material placed on the part of the plaintiff that after the alleged partition, the three daughters had been enjoying their respective shares as projected in the plaint. Even in the plaint, there is no clear averment as to how the abovesaid property had been divided amongst the three daughters, whether in equal shares or otherwise. Be that as it may, when as per the plaint averments, it is found that the alleged partition took place in 1988 and thereafter, the two daughters, namely, Malliga and Indira had alienated the suit property in favour of the plaintiff during 1995, at least to show that the three daughters had been enjoying their respective shares in the suit survey number as allotted to them, there is no material forthcoming on the part of the plaintiff to evidence the same. Thus, it is found that as regards the alleged oral partition said to have been made by the fourth defendant in favour of the daughters and the alleged enjoyment of the daughters in respect of the shares allotted to them, the plaintiff has not placed any acceptable material to buttress the abovesaid case and to cap it all, further when Ex.A3 sale deed does not disclose as to how the vendors had acquired the title to the property comprised therein, it is found that the abovesaid version projected by the plaintiff seems to be only on paper without any foundation placed to buttress the same.
7. Coming to the legal position, the main contention projected by the plaintiff's counsel is that on the doctrine of acceleration, the plaintiff's vendors had acquired title to the suit property even during the life time of the fourth defendant and therefore, they are competent to alienate the suit property to the plaintiff under Ex.A3 sale deed and further, according to her, when the said sale deed had not been challenged by the fourth defendant, who had remained ex-parte in the proceedings, it is her contention that the defendants cannot throw any challenge to the plaintiff's title to the suit property and hence, it is argued by her that the first appellate Court erred in disbelieving the claim of title projected by the plaintiff and therefore, the judgment and decree of the first appellate Court needs reversal. In this connection, reliance is placed upon the decision of this Court dated 04.12.17 passed in S.A.Nos.1600 and 1601 of 2001 as well as the decision reported in 1979 SCC online madras 313 (V.S.Mani Vs. Commissioner of Gift-Tax, Madras). In other words, according to the plaintiff's counsel, the vendors of the plaintiff had acquired title to the suit property on the principles of law enunciated under Section 27 of the Transfer of Property Act, during the life time of the fourth defendant itself and the same cannot be challenged by the other defendants and hence, the plaintiff's title to the suit property should have been upheld by the first appellate Court.
8. Section 27 of the Transfer of Property Act reads as follows:
27. Conditional transfer to one person coupled with transfer to another on failure of prior disposition- Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.
But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.
9. On a perusal of the abovesaid provisions, it is found that as per the principles enunciated therein, no doubt the ulterior disposition may take effect upon the failure of the prior disposition, although the failure of the prior disposition may not have occurred in the manner contemplated by the transferor. On that footing, it is argued that when the fourth defendant has not challenged the entitlement of her daughters to alienate the suit property in favour of the plaintiff, the first appellate Court should have accepted the plaintiff's case in toto. However, as seen from the latter part of the abovesaid Section, it is found that where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner. Applying the same to the case at hand, when it is found that as per the recitals contained in the settlement deed marked as Ex.A2, Vadivel kounder had granted life enjoyment to his wife, namely, the fourth defendant to enjoy the suit property till her demise and only thereafter had directed his daughters to take the suit property in equal moieties, such being the position, it is found that the plaintiff cannot be allowed to contend that the fourth defendant had immediately after the execution of the settlement deed Ex.A2 i.e., a few days thereafter, had chosen to divide the settled property in favour of her daughters and allotted them various shares. On a reading of the recitals found in Ex.A2, in my considered opinion, that would not have been the intention of the settlor Vadivel kounder while executing the settlement deed Ex.A2. Accordingly, when it is found that the purposive and conscious intention of the settlor in particular, as found from the recitals contained in the settlement deed, in granting the fourth defendant the life enjoyment of the property settled without the power of alienation, and only thereafter to his daughters would have been only to ensure that the fourth defendant enjoys the property till her life time for her maintenance and accordingly, directed the daughters to take the settled property in equal moieties after the demise of his wife, the fourth defendant. Accordingly, it is found that when the intention of the settlor Vadivel kounder is that the disposition he had made with reference to the settled property should take effect only in the manner as adumbrated and indicated by him, accordingly, it is found that applying latter part of Section 27 of the Transfer of Property Act, it is found that the fourth defendant, even assuming that she is a consenting party, would not be competent as such to divide the property in favour of his daughters as projected by the plaintiff. Accordingly, it is found that the plaintiff is also unable to aver clearly as to when the oral partition effected by the fourth defendant in favour of her daughters had taken place, except stating that it was a few days after the execution of the settlement deed. If really any such inclination had been there on the part of the fourth defendant to effect a valid partition amongst her daughters immediately after Ex.A2 settlement deed, particularly, when it is pleaded that the fourth defendant had chosen to effect the partition in order to avoid dispute amongst her daughters, she would have endeavoured to effect the partition by way of written statement. However, conveniently, the plaintiff has projected the case, as if the fourth defendant had chosen to effect an oral partition in favour of the daughters in order to avoid any conflict of interest in the family over the enjoyment of the suit property. That apart, the alleged conflict of interest among the daughters has also not been made clear in the plaint. When the settlor himself has clearly mentioned in the settlement deed that the three daughters should take in equal moieties after the demise of the fourth defendant, there could not be any conflict of interest amongst the daughters as to how the settled property should be divided amongst themselves after the demise of their mother. Such being the position, to say that the fourth defendant had chosen to effect partition amongst the daughters immediately after the execution of the settlement deed in order to avoid dispute amongst the daughters as such cannot be believed and accepted as such. Accordingly it is found that the plaintiff is unable to place acceptable and reliable materials to establish the plea of oral partition as projected in the plaint. That apart, as aboveseen there is no material placed to show that after the alleged partition, the three daughters had been in possession and enjoyment of their allotted shares without any conflict. No acceptable material is placed to show that the fourth defendant, after the alleged partition, has been maintained by the daughters, for the purpose of which, the life enjoyment had been given to the fourth defendant by the settlor. Though it is claimed by the plaintiff that after the alleged partition, the daughters had been maintaining the fourth defendant, their mother, if that be so, it does not stand to reason as to why the fourth defendant remained ex-parte in the suit proceedings. If really the fourth defendant is a willing party to the alleged partition projected in the plaint and if she had been maintained by her daughters as claimed in the plaint, nothing prevented the vendors of the plaintiff to apprise the fourth defendant about the institution of the suit requesting her to appear in the suit to give her approval to the alleged sale deed executed by the two daughters in favour of the plaintiff. Accordingly, it is found that the claim made by the plaintiff that the fourth defendant had been maintained by the daughters cannot be accepted and accordingly, it is found that the very case of the plaintiff that the fourth defendant had chosen to effect the partition amongst the daughters immediately after the settlement deed, is found to be highly improbable and if the same is to be accepted without any proof, it is found that it would amount to dishonouring and stifling the intention of the settlor in providing the life enjoyment in favour of the fourth defendant, his wife by settling the property for the purpose of her maintenance. Accordingly, it is found that even the alleged vendors of the plaintiff had not averred as to how they had traced their title to the suit property and accordingly, it is seen that the alleged claim of title of the plaintiff's vendors in respect of the suit property, not having been established in the light of the principles of law governing the Doctrine of Acceleration as discussed above, the plaintiff has to be non suited on his failure to establish the alleged claim of title of his vendors to the suit property.
10. On a perusal of the decisions relied upon by the plaintiff's counsel, it is found that the Doctrine of Acceleration could be accepted, provided it does not run counter to the interest of the parties to the transaction and does not militate against the benefits of the beneficiaries of the prior disposition in the said transaction. More so, it is found that the party seeking claim of title to the property on the basis of the Doctrine of Acceleration to succeed, there should be clear and concrete evidence as to the effacement of the interest by the beneficiaries of the prior disposition and the effacement of such prior disposition should be bonafide, voluntary, real and there should be total renunciation of interest by the beneficiaries of the prior disposition and the alleged surrender of interest of the beneficiaries of the prior disposition should not be a mere device to divide the interest amongst the reversioners so as to deprive the advantage of the estate to the beneficiaries of the prior disposition. When the abovesaid parameters are not shown to be covering the alleged partition said to have been effected by the fourth defendant in favour of her daughters and the resultant enjoyment of the daughters of their allotted shares and further, when there is no material to hold that even thereafter, the fourth defendant had been maintained by the daughters and if the position had been otherwise, as seen supra, the fourth defendant would not have remained ex-parte and would have entered appearance and expressed her approval of the alleged renunciation on her part in respect of the settled property, all these facts being completely absent in the present case, in my considered opinion, the plaintiff cannot be allowed to lay any claim of title to the suit property. As above discussed when the alleged partition by way of which the vendors of the plaintiff are shown to have acquired title to the suit property is found to be not in accordance with law and runs counter to the intention of the settlor Vadivel kounder and when the alleged partition and the subsequent enjoyment having not been established as claimed in the plaint, merely because the fourth defendant has remained ex-parte in the suit proceedings, which is also found to be unnatural, as rightly determined by the first appellate Court, the plaintiff has miserably failed to establish his vendors' title to the suit property on the principles of law governing the Doctrine of Acceleration and such being the position, no interference is called for in the judgment and decree of the first appellate Court declining the reliefs sought for by the plaintiff.
11. In view of the abovesaid factors, the first appellate Court is justified in holding that Ex.A3 sale deed is invalid as the vendors therein had not acquired a valid title to sell the property comprised therein during the life time of the fourth defendant. As above discussed, the vendors are found to be not entitled to invoke section 27 of the Transfer of Property Act for claiming title to the suit property on the basis of the Doctrine of Acceleration. The first substantial question of law formulated in the second appeal is accordingly answered against the plaintiff considering the failure of the plaintiff to establish his vendors' title to the suit property as such. The second substantial question of law formulated in the second appeal is found to be not required to be answered, as such, for disposing the second appeal.
12. In the light of the abovesaid discussions, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
03.07.2018 Index : Yes/No Internet:Yes/No sli To
1. The Principal Subordinate Court, Villupuram
2. The Principal District Munsif Court, Tirukoilur.
3. The Section Officer, V.R.Section, High Court, Madras.
T.RAVINDRAN,J.
sli Pre-delivery Judgment in S. A.No.1862 of 2004 03.07.2018