Kerala High Court
Rajalakshmi Ammal vs V.Ramanathan on 8 June, 2012
Author: Thomas P.Joseph
Bench: Thomas P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH
FRIDAY, THE 8TH DAY OF JUNE 2012/18TH JYAISHTA 1934
RSA.No. 524 of 2012 (D)
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AS.192/2009 of DISTRICT COURT,THIRUVANANTHAPURAM
OS.54/2005 of PRINCIPAL SUB COURT,ATTINGAL
APPELLANT/2ND APPELLANT/2ND DEFENDANT :
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RAJALAKSHMI AMMAL
W/O. L.A.SUBRAHMANI, RESIDING AT THENKANJI MATOM
NAVAIKULAM, THIRUVANANTHAPURAM.
BY ADVS.SRI.R.S.KALKURA
SRI.M.S.KALESH
SMT.A.V.PRIYA
SRI.HARISH GOPINATH
SRI.V.VINAY MENON
RESPONDENTS/RESPONDENTS/PLAINTIFF & DEFENDANTS 3 AND 4 :
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1. V.RAMANATHAN, AGED 58 YEARS
S/O. VENKATA KRISHNA IYER, NO.7, RAJAMBAL STREET
2ND FLOOR, FLAT 8E, JAINE APARAJITHA
T.NAGAR, CHENNAI-600 017.
2. MANIYAN
S/O. GEORGE, PADINJAREMADAM, NAVAIKULAM.
3. SWAMI JAYENDRA SARASWATHY
KANCHI KAMAKODI PEEDAM, KANCHIPURAM, TAMIL NADU.
BY ADV. SRI.T.RAMPRASAD UNNI(CAVEATOR)
BY ADV. SRI.K.RAMAKUMAR (SR.)
BY ADV. SRI.S.M.PRASANTH
BY ADV. SMT.SMITHA GEORGE
THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON
08-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
THOMAS P. JOSEPH, J.
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R.S.A.No.524 of 2012
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Dated this 08th day of June, 2012
JUDGMENT
Heard. Admit.
2. The following substantial question of law is framed for a decision:
(i) Whether, in the light of the finding the trial court has entered as to the construction of the residential building in the suit property, courts below went wrong in either not directing the first respondent to pay off the appellant/second defendant or, not allowing the appellant to remove the structure she has put up in the suit property?
3. The second appeal arises from the judgment and decree of learned Sub Judge, Attingal in O.S.No.54 of 2005 as confirmed by the learned District Judge, Thiruvananthapuram in A.S.No.192 of 2009.
4. First respondent claimed that himself and his aunt, Parvathy Ammal belonged to Padinjare Madom family. The suit property belonged to the late Parvathy Ammal as sole legal heir of her father. Parvathy Ammal and her husband, Ramaswamy Iyer jointly executed Ext.A1, Will No.16 of 1982 dated 03.03.1982 bequeathing the suit property in favour of the first respondent. R.S.A.No.524 of 2012 -: 2 :- Parvathy Ammal and late Ramaswamy Iyer died issueless on 20.01.1995 and 18.08.2004, respectively. First respondent became the absolute owner in possession of the suit property. He could come to the suit property only on 27.02.2005 as he was looking after his ailing mother who died on 09.02.2005. First respondent learned that Ramaswamy Iyer executed Ext.B2, Will No.35 of 1995 which according to the first respondent, is invalid and cancelled Ext.A1, Will No.16 of 1982. Ramaswamy Iyer executed document No.2798 of 2003 (Ext.B31) transferring 14 cents to the second appellant. According to the first respondent, Exts.B2 and B31 are void and hence he prayed for a declaration of his title and possession of the suit property and for prohibitory injunction against appellants and other defendants (respondents 2 and 3) creating documents with respect to the said property or making construction in the suit property. Alternatively, first respondent prayed for recovery of possession of the suit property.
5. Appellant and the first defendant (who died pending the first appeal) contended that Ramaswamy Iyer got title and possession of the suit property as per Ext.A1, Will No.16 of 1982 and that the said Will could take effect only after his death. While so, Ramaswamy Iyer executed Ext.B2, Will No.35 of 1995 R.S.A.No.524 of 2012 -: 3 :- cancelling Ext.A1 (Will No.16 of 1982). Ramaswamy Iyer allotted 24 cents to the first respondent for enjoyment till his death and thereafter it devolved on Kanchi Kamakodi Madom (respondent/third defendant represented that Madom). It is the further case that Ramaswamy Iyer sold 14 cents to the appellant as per Ext.B31, assignment deed No.2798 of 2003 and thus appellant is in possession of the said property.
6. Trial court held that in Ext.A1, Will Ramaswamy Iyer did not get title over the property so that he could execute Ext.B2, Will No.35 of 1995 and hence Ext.B31, assignment deed No.2798 of 2003 executed by Ramaswamy Iyer is void. Consequently, first respondent was found to have title over the suit property. First respondent was allowed to recover possession of the suit property from the appellant and respondents 2 and 3 through Court disregarding the constructions or improvements, if any made by the appellant and others in the said property. Decree for prohibitory injunction was also granted against appellant and others. That judgment and decree are confirmed by the learned District Judge in A.S.No.192 of 2009. Hence this second appeal.
7. Learned counsel for appellant has argued that the finding of the trial and first appellate courts as to the devolution R.S.A.No.524 of 2012 -: 4 :- of title on Ramaswamy Iyer consequent to Ext.A1, Will No.16 of 1982 is not correct. According to the learned counsel, Ext.A1 would show that on the death of Parvathy Ammal, title to the property was to vest with Ramaswamy Iyer and hence he was competent to cancel Ext.A1, Will and execute Ext.B2, Will No.35 of 1995. If that be so, Ext.B31, assignment deed executed by Ramaswamy Iyer in favour of appellant is valid, it is argued.
8. The learned Senior Advocate who appeared for the first respondent on whose behalf a caveat was filed, argued that having regard to the recitals in Ext.A1, there is no scope for an interpretation that the property was to vest with Ramaswamy Iyer on the death of Parvathy Ammal.
9. So far as the said contention is concerned, I have perused the copy of Ext.A1 given to me by the learned counsel for appellant. I am invited to the relevant recitals in Ext.A1 which according to the appellant revealed that the property was to devolve on Ramaswamy Iyer on the death of Parvathy Ammal. But, on going through the recitals in Ext.A1, I find myself unable to accept that contention. It is seen from Ext.A1 that apart from the management Ramaswamy Iyer had over the property, no better right or title was conferred on him by Parvathy Ammal who admittedly was the absolute owner of the property. The R.S.A.No.524 of 2012 -: 5 :- right which Ramaswamy Iyer had in the property after the death of Parvathy Ammal was only a bare right for management of the property. That should end with the death of Ramaswamy Iyer. If that be so, Ramaswamy Iyer was not competent or entitled to cancel Ext.A1 or, execute Ext.B2, Will No.35 of 1995 as if the property devolved on him on the death of Parvathy Ammal. The finding of the trial and first appellate courts that Ramaswamy Iyer did not have any title over the property to execute Ext.B2, Will as regards the suit property requires no interference and as it involves no substantial question of law. It follows that Ext.B31, assignment deed executed by Ramaswamy Iyer in favour of the appellant as regards the suit property is void in law.
10. The substantial question of law framed for a decision is whether in the above circumstance, appellant is entitled to be paid off for the building she allegedly has constructed in the suit property or, is entitled to remove the said building without causing any damage to the suit property?.
11. Learned counsel for appellant has contended that appellant is a bonafide purchaser of the property or atleast has a bonafide claim over the property pursuant to Exts.B2 and B31 and hence is entitled either to be paid off for the building constructed by the appellant or to remove the same from the suit R.S.A.No.524 of 2012 -: 6 :- property at the option of the first respondent. It is further contended that even if it is assumed that appellant is a trespasser, she is entitled to remove the structure she has put up in the suit property since if the structure is allowed to remain in the suit property, it will amount to unlawful enrichment by the first respondent.
12. Learned Senior Advocate has pointed out from Ext.A1 that even at the time that Will was executed, there was an old structure in the suit property over which appellant can have no claim. Learned Senior Advocate on getting instruction has submitted that if appellant has put up any new structure (which did not exist at the time Ext.A1, Will was executed), it is open to the appellant to remove the said structure without causing damage to the suit property.
13. The law on the point, unlike in England is that the principle, "Quicquid plantatur solo, solo cedit" (whatever is annexed to the freehold becomes part of the realty) has no application in India (See Thankamma Kunjamma & Ors. Vs. Gopalakrishnan Unnithan & Ors (1992(1) KLJ 415 (paragraph 23)) and Commissioner of Central Excise, Ahammedabad Vs. Solid & Correct Engineering Works & R.S.A.No.524 of 2012 -: 7 :- Ors. ((2010)5 SCC 122). In Mohammed Abdul Kadar and Ors. Vs. The District Collector of Kanyakumari and Ors. (AIR 1972 Madras 56), the observation of Sir Barnes Peacock in Thakoor Chander Poramanick Vs. Ramdhone Bhattacharjee ((1866) 6 Suth WR 228) is quoted with approval which is to the effect that a person in possession under a bonafide title or claim of title, is entitled either to remove the materials, restoring the land to the state in which it was before the improvement was made."
14. In the present case it is based on an interpretation of Ext.A1, Will that Ext.B2, Will was executed. Appellant purchased 14 cents as per Ext.B31, assignment deed. Appellant had a bonafide claim of title to the property which of course failed as her assignor did not have title to the property. Even if appellant was a trespasser she should be allowed, at the option of the first respondent be allowed to remove the structure he has put up. (See Chellappan Nadar Vs. Krishnan Nair (1963 KLT 750)).
15. The next question is whether appellant has put up any structure in the suit property?. Learned Senior Advocate points out from Ext.A1 that even at the time of execution of that Will there was an old structure in the suit property bearing door No.2/319 (with its new number if any). The learned counsel for R.S.A.No.524 of 2012 -: 8 :- appellant has invited my attention to paragraph 9 of the judgment of the trial court where it is held:
"it has come in evidence that the first and second defendants are in possession of the plaint schedule property and the second defendant has constructed a house in the property after the execution of Ext.B31, sale deed in her favour by deceased Ramaswamy Iyer. The construction of the house is noted in Ext.C1, report of the Advocate Commissioner who visited the place on 21.10.2005."
(second defendant is the appellant herein). Thus, it is clear that appellant has put up a residential building in the suit property after Ext.B31.
16. Learned Senior Advocate on getting instruction has in fairness submitted that though first respondent is not interested in paying off the appellant for the building the latter has constructed, first respondent has no objection in appellant removing the said building.
17. In the light of the option exercised by the first respondent, appellant is entitled to remove the building she has put up in the suit property without causing damage to the suit property.
18. The substantial question of law framed is answered as above.
R.S.A.No.524 of 2012 -: 9 :-
19. In the light of the above, it follows that judgment and decree of the learned Sub Judge, Attingal in O.S.No.54 of 2005 and of the learned District Judge, Thiruvananthapuram in A.S.No.192 of 2009 require modification to the extent that appellant can remove the building she has constructed in the suit property and reported by the Advocate Commissioner in Ext.C1 without causing damage to the suit property or the old structure bearing door No.2/319 (with its new number, if any) situated in the said property. If the appellant does not remove the building within the time granted, she shall cease to have any claim over it.
Resultantly the second appeal is allowed in part as under:
(i) The judgment and decree of learned Sub Judge, Attingal in O.S.No.54 of 2005 as confirmed by the learned District Judge, Thiruvananthapuram in A.S.No.192 of 2009 is modified to the extent that appellant is allowed to remove the building she has put up in the suit property after Ext.B1 and reported by the Advocate Commissioner in Ext.C1 without causing damage to the suit property or the old structure bearing door No.2/319 (with its new number, if any) at her cost. On appellant removing the foundation and basement of the building, she shall restore that portion to its original position.
(ii) If necessary, appellant may move the executing court for removal of the building as aforesaid, under the supervision of an Advocate R.S.A.No.524 of 2012 -: 10 :- Commissioner, at her expense.
(iii) Appellant is granted six (6) months' time from this day to remove the said building. She shall not in any manner alienate, encumber or induct others into possession of the said building.
(iv) It is made clear that the option granted to the appellant will not stand in the way of the first respondent getting delivery of the suit property except the building appellant has put up and allowed to be removed by him.
(v) In case first respondent takes delivery of the suit property (other than the building which the appellant is allowed to remove) first respondent shall permit the appellant and her men to have access to the suit property for removal of the building and if necessary taking vehicles into the suit property but, without causing damage to the suit property.
(vi) In case appellant does not remove the building within the time aforesaid, it will be open to the first respondent to remove the building through Court and realise the expense from the appellant.
(vii) In all other respects the judgment and decree of the courts below will remain intact.
(THOMAS P. JOSEPH, JUDGE) Sbna/-