Madras High Court
T.K.Thiyagarajan vs Lakshmana Chettiar on 8 February, 2013
Author: M.Duraiswamy
Bench: M.Duraiswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 08.02.2013 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.251 of 2005 1.T.K.Thiyagarajan 2.Parivallal 3.T.S.Elango .. Appellants Vs. 1.Lakshmana Chettiar 2.Ethiraju Chettiar 3.Thirumalai Srinivasan 4.T.S.Sampath Kumar 5.T.S.Natarajan 6.T.S.Shanmugham 7.Malliga 8.Thamarai 9.Saraswathi 10.C.Arasu 11.C.Umarani 12.C.Vijaya .. Respondents Prayer : Second Appeal filed against the Judgment and Decree made in A.S.No.33 of 1997 on the file of the Principal District Judge, Vellore dated 06.01.2003 in erroneously reversing the well considered judgment and decree in O.S.No.22/1986 on the file of the Subordinate Judge, Tirupattur dated 05.11.1996. For Appellants : Mr.V.Raghavachari For Respondents : Mr.T.R.Rajaraman JUDGMENT
The above Second Appeal arises against the judgment and decree in A.S.No.33 of 1997 on the file of the Principal District Court, Vellore reversing the judgment and decree in O.S.No.21/1986 on the file of the Sub Court, Tirupattur.
2.The defendants 1, 4 and 5 are the appellants, the respondents 1 to 3 were the plaintiffs and the respondents 4 to 12 were the defendants 6 to 14 in the suit.
3.The plaintiff filed the suit in O.S.No.22 of 1986 for recovery of possession from the defendants 2 to 12.
4. The brief case of the plaintiffs are as follows:-
According to the plaintiffs the suit property originally belonged to one Ramanuja Chettiyar by virtue of his purchase by sale deed dated 21.04.1914. He was in possession and enjoyment since the date of his purchase. The said Ramanuja Chettiyar had two other brothers by name Alagiya Manavala Ramanujam and Ethiraj. The fourth defendant is the grand daughter of Ramanuja Chettiar through his son Kannan. Ramanuja Chettiar died in the year 1955 and Kannan died in the year 1957 leaving behind his only daughter, the fourth defendant. Alagiya Manavala Ramanujam died in the year 1969 leaving behind his son Nathamuni. He also died in the year 1974. The plaintiffs are the legal heirs of the said Nathamuni. Ramanuja Chettiar's brother Ethiraj died on 23.05.1917 leaving behind his wife Rajammal. The said Rajammal died on 25.12.1978. Ethiraj died issueless. After the death of Ethiraj, his widow Rajammal joined Kuppusami Mudaliar through whom she gave birth to defendants 1 and 2 and three daughters. The third defendant is the husband of Saroja, one of the daughters of Rajammal. The said Saroja died about a year prior to the filing of the suit. Ramanuja Chettiar executed a settlement deed in favour of Rajammal on 07.07.1917 by which she was given the right to reside in the suit house and utilise the rents and profits of the lands without any power of alienation. Further it was recited in the settlement deed that after the death of Rajammal, the property should revert back to the settlor Ramanuja Chettiar and Alagiya Manavala Ramanujam or to their heirs. Rajammal tried to alienate the suit property by changing the name in the revenue records. In order to avert the alienation, Ramanuja Chettiar and Alagiya Manavala Ramanuam jointly issued a notice on 22.03.1955 to Rajammal and the first defendant. Thereafter they filed a suit in O.S.No.657/1955 against them. The said suit was decreed on 30.01.1960. Rajammal, the limited owner had died on 25.12.1978 and by her death the suit property reverted back to the heirs of Ramanuja Chettiar and Alagiya Manavala Ramanujam since the plaintiffs in O.S.No.657/1955 died before the death of Rajammal. On 14.04.1979 the plaintiffs issued a notice to the defendants 1 and 2 and the defendants 1 and 2 sent a reply on 16.06.1979. In the reply notice it was alleged that Ethiraj, husband of Rajammal had 1/3rd share in the suit house and other properties. After the death of Ethiraj on 23.05.1917 his wife got only the right of maintenance over the ancestral property. Such a right was given under the settlement deed dated 07.07.1917. The decree in O.S.No.657/1955 bars the contention of the defendants 1 and 2 and others not only be estoppel but also by resjudicata. The defendants are bound to deliver possession of the suit properties to the plaintiffs and the fourth defendant. The defendants 5 to 12 are the legal representatives of the deceased first defendant who died pending suit. In these circumstances, the plaintiffs filed the suit.
5.The brief case of the second defendant is as follows:
According to the second defendant, he does not know that Ramanuja Chettiar died in the year 1955 and Kannan died in the year 1957 leaving behind his daughter, 4th defendant as his surviving legal heir. On attaining majority, Rajammal took possession and was in possession and enjoyment of the property covered under the settlement deed dated 07.07.1917. There is no recital in the settlement deed that after the death of Rajammal the property should revert to the settlor Ramanuja Chettiar and Alagiya Manavala Ramanujam or to their heirs. After the issuance of notice the matter was referred to one Thatha Chetty and all the parties have given power to him and the understanding was that all the properties have to be sold and profits have to be divided equally by the plaintiffs and the defendants. The decree in O.S.No.657/1955 is not a bar to the contentions of the defendants 1 and 2. The plaintiffs are not entitled to any reliefs. In these circumstances, the second defendant prayed for dismissal of the suit.
6.Before the Trial Court on the side of the plaintiff, two witnesses were examined and 11 documents Ex.A1 to Ex.A11 were marked and on the side of the defendants, two witnesses were examined and 3 documents Ex.B1 to Ex.B3 were marked. The Trial Court after taking into consideration the original and documentary evidence of both sides dismissed the suit.
7.Aggrieved over the judgment and decree of the Trial Court, the plaintiffs preferred an appeal in A.S.No.33 of 1997 and the Lower Appellate Court after taking into consideration the case of both parties reversed the judgment and decree of the Trial Court and allowed the appeal. Aggrieved over the judgments and decree of the Lower Appellate Court, the defendants 1, 4 and 5 have filed the above second appeal.
8.Heard Mr.V.Raghavachari, learned counsel appearing for the appellants and Mr.T.R.Rajaraman, learned counsel appearing for the respondents.
9.At the time of the admission of the above second appeal, the following substantial question of law arose for consideration:
1.Whether the Lower Appellate Court is correct in decreeing the suit on the basis of Resjudicata?
2.Whether the lower court had not erred in decreeing the suit in the absence of the legal heirs of the 4th respondent?
10.On a careful consideration of the materials available on record and the submissions made by both the counsel, it could be seen that there is no dispute that Thirupathi Chettiyar had three sons, namely, Ramanuja Chettiar, Alagiya Manavala Chettiyar and Ethiraj. Ethiraj died on 23.05.1917 within ten days after his marriage. At the time of his death his wife was a minor aged about 14 years. Ramanuja Chettiyar and his brother Alagiya Manavala Chettiyar settled the suit property in favour of Rajammal and she was leading a family life with one Kuppusami Mudaliar. Thereafter Ramanuja Chettiyar filed a suit in O.S.No.657/1955 against Rajammal and another. On appeal from the decree in the said suit, the First Appellate Court remanded the matter back to the trial court for fresh disposal and after remand declared that the first defendant, Rajammal has no more than a life interest in the suit property without any powers of alienation and the plaintiffs, i.e., T.Ramanuja Chettiyar and Alagiya Manavala Ramanujam are the reminder-men thereof and the second defendant has got no interest whatsoever in it and the transfer of registry in the municipal house property tax registry in the name of the second defendant will not in any way affect the plaintiffs right in the suit property. The judgment and decree in O.S.No.657/1955 were marked as A3 and A4.
11.The learned counsel appearing for the appellants contended that in the earlier suit in O.S.No.657/1955 was filed prior to coming into force of Hindu Succession Act, 1956, therefore, the issue was not decided, hence, the appellants are entitled to claim right under Hindu Succession Act, 1956.
12.In support of his contention, the learned counsel appearing for the appellants relied upon the following judgments:
(1) In 2010 (10) SCC 235 (Subhan Rao and others vs. Parvathi Bai and others), wherein the Hon'ble Supreme Court held as follows:
"We have considered the respective arguments and submissions. The nature of the right created in favour of Hindu female by Section 14 of the Act was considered by a three-Judge Bench of this Court in V.Tulasamma v. Sesha Reddy. Fazal Ali, J. analysed Section 14, referred to the views of several jurists and judicial precedents and recorded the following conclusions:
"(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre-existing right so that any transfer declaring or recognising such a right does not confer any new title but merely endorses or confirms the pre-existing rights.
(2) Section 14(1) and the Explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 Act and promote the socio-economic ends sought to be achieved by this long needed legislation.
(3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistent with the main provision.
(4) Sub-section (2) of Section 14 applies to instruments, decrees, awards, gifts, etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored. Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like `property acquired by a female Hindu at a partition', `or in lieu of maintenance', `or arrears of maintenance', etc. in the Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub- section (2).
(6) The words `possessed by' used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) That the words `restricted estate' used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee."
(2) In 2002 (3) SCC 316 (V.Muthusamy (dead) By LRs. vs. Angammal and others), wherein the Hon'ble Apex Court has held that Sub-section (2) of Section 14 of the Hindu Succession Act is in the nature of a proviso or exception to sub-section (1) and being in the nature of an exception it must be construed strictly so as to impinge as little as possible on the border weep of the ameliorative provision contained in the sub-section (1) and sub-section (2) therefore be interpreted in a manner, which would rob sub-section (1) of its efficacy and deprive a Hindu female by sub-section (1).
(3) In 2006 (3) LW 86 (Saraswathi Ammal vs. Ponninatha Nainar), wherein this Court held that the properties acquired by a female towards maintenance under the partition deed will become her absolute property by virtue of Section 14(1).
(4) In 2006 (8) SCC 75 (Sadhu Singh vs. Gurdwara Sahib Narike and others), wherein the Hon'ble Supreme Court held that essential ingredients for determining whether Section 14(1) of Hindu Succession Act would come into play are the antecedents of the property, the possession of the property as on the date of the Act and the existence of a right in the female over it, however limited it may be. Any acquisition of property by a female after coming into force of the Act, cannot normally attract Section 14(1) of the Act.
(5) In 1989 LW 355 (Corporation of Madras, represented by its Commissioner vs. P.R.Ramachandran and others), wherein a Division Bench of this Court held as follows:
"It is by now well-settled by high authority that a party not aggrieved by a decree was not competent to appeal against the decree on the ground that an issue was found against him. A party in whose favour a decree is passed could not appeal against the decree on the ground that the findings on one of the issues was against the party. It, therefore, follows that the decision rendered by the court below on issues other than issues 2 will not bind the Corporation of Madras."
13.Countering the submissions made by the learned counsel appearing for the appellants, the learned counsel appearing for the respondents in support of his contention relied on by the judgment reported in AIR 1985 MADRAS 154 (N.V.Panchapagasan vs. K.Swaminathan), wherein this Court held that when a formal decision was not given without jurisdiction, such decision would operate as res judicata inter parties not withstanding the fact that it was not followed in subsequent decision.
14.There is no dispute with regard to the principles laid down in the above referred judgments relied upon by the learned counsel appearing for the appellants and respondents.
15.In the earlier suit, O.S.No.657/1955 the first re-casted issue reads as follows:
"Whether in view of the fact that the first defendant is not entitled to widow's estate in the suit property, the plaintiffs are entitled to the declaration prayed for by them"
16.Though the suit was filed in the year 1955, i.e., prior to coming to force of the Hindu Succession Act, 1956 on the earlier occasion the suit was decided and on appeal the first appellate court remanded the matter back to the trial court for fresh disposal. After remand the issues were re-casted and the above issue was included for consideration. After remand the suit was decided on 30.01.1960 i.e., after coming into force of Hindu Succession Act, 1956. The said issue was taken into consideration in O.S.No.657/1955 and the trial court held as follows:
"From Ex.B1 it is apparent that the first defendant was given no more than a right of residence in the suit property during her lifetime and accordingly this right could not become enlarged into an absolute estate. Further the appellate court has found that by reason of Section 14 of the Hindu Succession act no enlargement of the interest of the first defendant in the suit property can taken place and that she is entitled only to a right of residence during her lifetime and this finding of the appellate court is binding on her and on the parties. It has become final and it is no longer open to the defendants to contend contra."
17.Therefore from the judgment passed in O.S.No.657/1955 dated 30.01.1960 it is clear that the provisions of Hindu Succession Act was taken into consideration not only by the trial court but also by the first appellate court. In O.S.No.657/1955, the trial court had clearly held that Rajammal is entitled only to a right of residence during her lifetime and her right would not enlarged into an absolute right under the provisions of Hindu Succession Act. The trial court passed a decree in favour of the plaintiffs therein declaring that the first defendant therein, Rajammal has no more than a life interest in the suit property without any power of alienation and the plaintiffs therein are not reminder-men thereof and the second defendant therein has got no interest whatsoever in it and the transfer of registry in the Municipal House Property Tax Register in the name of the second defendant will not in any way affect the plaintiffs right in the suit property. Therefore from the above, it is clear that the trial court while deciding the suit in O.S.No.657/1955 had taken into consideration the provisions of Hindu Succession Act, 1956 and therefore the appellants cannot now contend that since the suit was filed in the year 1955 the provisions of Hindu Succession Act was not taken into consideration.
18.The fourth defendant in the suit is the legal heir of Alagiya Manavala Chettiyar. The fourth defendant was set exparte in the trial court. The fourth defendant died pending suit and with the leave of the Court, the legal representatives of the deceased fourth respondent were not served with notice. Therefore the lower appellate court has rightly held that decreeing the suit in the absence of legal heirs of the fourth defendant was not wrong. The lower appellate court has rightly held that the judgment and decree passed in O.S.No.657/1955 is binding on the parties and therefore rightly reversed the judgment and decree of the trial court and decreed the suit.
19.In these circumstances, I find no ground much less any substantial question of law to interfere with the judgment and decree of the Lower Appellate Court. The second appeal is liable to be dismissed. Accordingly the second appeal is dismissed. However, there shall be no order as to cost.
cse To
1.The Principal District Judge Vellore.
2.The Subordinate Judge, Tirupattur