Madras High Court
Natarajan vs M.Ravi
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
MADURAI BENCH OF MADRAS HIGH COURT, MADURAI
RESERVED ON : 10.10.2018
PRONOUNCED ON : 0111.2018
CORAM
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
Appeal Suit (MD)No.47 of 2005
Natarajan ... Appellant / Defendant
Vs
1.M.Ravi
2.Jayashree (Died)
3.K.Manjula
4.K.Manikandan
5.K.Boopathi ... Respondents / Plaintiffs
(R3 to R5 were brought on record as legal heirs of the deceased
second respondent vide order dated 19.07.2018 in C.M.P.
(MD)Nos.6220 to 6222 of 2018)
Prayer: Appeal Suit is filed under Section 96 of Code of Civil
Procedure, to set aside the judgment and decree dated
15.09.2003 made in O.S.No.900 of 1995 passed by the learned II
Additional Subordinate Judge, Trichy.
For Appellant :Mrs.N.Krishnaveni
Senior Counsel
for Mr.P.Thiagarajan
For R1, R3 to R5 :Mr.K.K.Senthil
***
http://www.judis.nic.in
2
JUDGMENT
The defendant in O.S.No.900 of 1995 on the file of the II Additional Subordinate Court, Trichy, is the appellant herein.
2.O.S.No.900 of 1995 had been filed by two plaintiffs, M.Ravi and Jayashree, who are siblings. The second plaintiff was a minor, at the time of institution of the suit. They filed the suit against the defendant, Natarajan, seeking a judgment and decree declaring that they are the owners of the suit schedule property and for consequential relief of recovery of possession and also for a direction against him to pay Rs.18,000/- as past mesne profit for 3 years and for a further direction against him to pay future mesne profit till the delivery of possession and also for costs of the suit.
3.The suit was originally filed in forma pauperis. The suit property was plot No.C/12 in T.S.No.754, Ranganathar Cooperative Colony, Srirangam, Trichy measuring an extent of 4576 sq.ft together building measuring an extent of 600 sq.ft. This suit came up for consideration before the II Additional http://www.judis.nic.in 3 Subordinate Court, Trichy and by judgment dated 15.09.2003, the suit was decreed with costs. Challenging the said judgment, the present first appeal had been filed. Even during the pendency of the suit, the second plaintiff had attained the age of majority and was declared as major. Pending the first appeal, she died and her legal heirs were brought on record as 3rd to 5th respondents.
O.S.No.900 of 1995 (II Additional Subordinate Court, Trichy):-
4.The suit property in plot No.C/12, Ranganathar Cooperative Colony, in T.S.No.754, Srirengam, Trichy, originally belonged to Alwar Iyengar. He had purchased the plot and put up building from his self earnings. He was in exclusive possession and enjoyment as owner during his life time. He died on 15.07.1957. On 07.06.1956, Alwar Iyengar executed a registered settlement deed in favour of his gpuPjp ghh;ahs; - Prithi Baryal, Sivakamu Ammal. It was provided in the settlement deed that she can enjoy the property during her life time and after that, it was to be taken by his grandchildren, born through his daughter, Yamuna. The plaintiffs are the grandchildren and http://www.judis.nic.in 4 claimed that Yamuna had no right in the property.
5. It was averred in the plaint that from the date of the settlement deed, Sivakamu Ammal was in possession of the property. After the death of Alwar Iyengar, one Kaliamoorthy, claimed right through an othi, dated 15.10.1958, and claimed it had been executed by Sivakamu Ammal and her daughter minor Yamuna in his favour. O.S.No.105 of 1962 had been filed in the Subordinate Court, Trichy, by the maternal uncle of Yamuna, by name, Ramasamy Mudaliar seeking a declaration that the othi was a fraudulent document. After trial, the Court held that the alleged othi was not a valid document and was not binding on the estate. Sivakamu Ammal continued to be in possession of the property.
6. It was further stated that thereafter, one S.K.Samy Iyer of Thiruvanaikoil in collusion with Veeramalai Muthuraja, brought into existence a power of attorney, as if executed by Yamuna and a sale deed pursuant to the same in the name of Veeramalai Muthuraja. The power of attorney dated 05.04.1971 and the sale deed dated 01.09.191 are both claimed by the http://www.judis.nic.in 5 plaintiffs to be false and concocted documents. Sivakamu Ammal filed O.S.No.502 of 1972 on the file of the Principal District Munsif, Trichy, against S.K.Samy Iyer and Veeramalai Muthuraja and Yamuna and also against the Public Works Department, which had entered into the property and claimed to be a tenant. That suit was decreed after trial. It was held in the suit that Sivakamu Ammal was entitled for the reliefs of declaration and for recovery of rent from the 2nd to 4th defendants, namely, Veeramalai Muthuraja and Public Works Department. Veeramalai Muthuraja filed A.S.No.580 of 1974 in the Subordinate Court, Trichy. The Subordinate Judge dismissed the appeal and confirmed the judgment of the trial Court. The second appeal filed by Veeramalai Muthuraja was also dismissed.
7. It was claimed in the plaint that all the transactions relating to the property made by Yamuna were void. It had been stated that Yamuna, S.K.Samy Iyer and Veeramalai Muthuraja and also the father of the plaintiffs, Mahadevan, have acted adverse to the interest of the plaintiffs. Sivakamu Ammal died 5 years prior to the institution of the present suit. The plaintiffs have been abandoned without anybody to take care of them. The http://www.judis.nic.in 6 plaintiffs claimed that they were entitled to the suit property after the life time of Sivakamu Ammal. The plaintiffs further stated that the defendant was in possession of the property and they claimed that he was a trespasser without any right in the suit property. It was claimed that the defendant had created fraudulent documents in collusion with Veeramalai Muthuraja and S.K.Samy Iyer and others and had taken possession when the plaintiffs were minors. It is under these circumstances that the suit had been filed for the reliefs stated above.
8.The defendant filed his written statement. He claimed that the suit is vexatious and had been filed on the instigation of the mother Yamuna and her husband to extract money from the defendant. The defendant admitted that the suit property originally belonged to Alwar Iyengar and that Alwar Iyengar had put up a small construction. He also admitted that Alwar Iyengar executed a registered settlement deed dated 7.6.1956 in favour of his gpuPjp ghh;ahs; - Prithi Baryal, Sivakamu Ammal. The claim of the plaintiffs that Yamuna had no right over the property was disputed. It was stated that Yamuna was in joint possession with Sivakamu Ammal from the date of the settlement deed. http://www.judis.nic.in 7
9.The proceedings in O.S.No.105 of 1962 relating to the mortgage deed brought about by Kaliamoorthy had been admitted. It was stated that Sivakamu Ammal continued in possession, till 01.09.1971, that thereafter, the defendant's predecessor-in-interest, Veeramalai Muthuraja was in possession and enjoyment of the suit property. The averments, relating to S.K.Samy Iyer of Thiruvanaikoil and the allegations regarding forgery of power of attorney, as if executed by Yamuna had been denied. It was further denied that the power of attorney deed, dated 05.04.1971 and the sale deed, dated 01.09.1971, are concocted documents. The averments relating to O.S.No.502 of 1972 on the file of the District Munsif Court, Trichy was admitted. The proceedings in A.S.No.580 of 1974 and also the second appeal filed by Veeramalai Muthuraja were also admitted. It was however denied that Yamuna, S.K.Samy Iyer and Veeramalai Muthuraja and the father of the plaintiffs, Mahadevan, acted adverse to the interest of the plaintiffs. It was denied that the plaintiffs have been abandoned after the death of Sivakamu Ammal. It was denied that the plaintiffs became entitled as owners of the suit property, after the death of http://www.judis.nic.in 8 Sivakamu Ammal.
10.It was stated that the settlement deed, dated 07.06.1956, was executed by Alwar Iyenger in favour of both Sivakamu Ammal and Yamuna in lieu of maintenance. This contention had also been acknowledged in O.S.No.502 of 1972 on the file of the District Munsif Court, Trichy and in A.S.No.580 of 1974 on the file of the Subordinate Court, Trichy. The life estate in favour of Sivakamu Ammal and the joint possession of both Sivakamu Ammal and minor Yamuna was also acknowledged in O.S.No.105 of 1962. It had been stated that Sivakamu Ammal and Yamuna were consequently joint owners of the suit property and they were both entitled to enjoy the property. It was stated that in O.S.No.502 of 1972 the learned Counsel for both the plaintiffs and the defendants have endorsed on the plaint that no finding need be given with respect to the validity of the sale deed, dated 01.09.1971, and the validity of the power of attorney, dated 05.04.1971 and with respect to the issue of forgery. It was stated that there was yet another suit filed by Yamuna and Sivakamu Ammal in O.S.No.935 of 1994 on the file of the Subordinate Court, Trichy. In that suit, they had http://www.judis.nic.in 9 claimed the relief of declaration that the sale deed, dated 01.09.1971, executed by S.K.Samy Iyer in favour of Veeramalai Muthuraja and the power of attorney dated 13.04.1971 were both null and void. It was stated that a compromise was entered into in the said suit. Subsequently, a memo was filed by Yamuna and Sivakamu Ammal and their Counsel Mr.Kasthuri Iyenger in Court. In the memo, they stated that Yamuna and Sivakamu Ammal agreed to execute a release deed and to settle the issues between the parties out of Court. It was sought in the memo that the suit may be dismissed as settled out of Court and consequently, the Court also dismissed the suit as settled out of Court.
11.It was further stated that Yamuna and Sivakamu Ammal and the first plaintiff, Ravi represented by his father Mahadevan, executed a release deed in favour of Veeramalai Muthuraja, after receiving consideration from Veeramalai Muthuraja. It was stated that the plaintiffs and their parents are living jointly. It was stated that the suit had been filed only to extract money. In the release deed, it was stated that considering the future and welfare and for the benefit of the minors, the release deed was http://www.judis.nic.in 10 being executed in confirmation of the sale deed, dated 01.09.1971 executed by S.K.Samy Iyer, as power of agent of Yamuna. It was stated that a fixed deposit was also made in favour of the first plaintiff. It was stated that the present suit had been filed on the instigation of Yamuna and Mahadevan. It was stated that Sivakamu Ammal and Yamuna were competent to execute the sale deed in favour of Veermalai Muthuraja. It was further stated that the plaintiffs have no right whatsoever in the suit property. It was stated that the suit should be dismissed.
12.The defendant filed additional written statement. It had been stated that the plaintiffs have no manner of interest in the suit property, since their mother Yamuna was alive. It was stated that a suit for recovery of possession was not at all maintainable, since the plaintiffs would acquire a right only after the life estate holder. It was stated that the suit should be dismissed.
13.On the basis of the above pleadings, the following issues were framed for trial:
“1)Whether the plaintiffs are entitled for the relief of http://www.judis.nic.in 11 declaration of title and recovery of possession?
2)Whether the plaintiffs are entitled to past and future mense profits?
3)Whether the power of attorney, dated 05.04.1971, and the sale deed dated 01.09.1971, are true and genuine documents?
4)Whether the release deed dated 04.02.1978 is a true and genuine document and whether it is valid?
5)To what other reliefs are the plaintiff is entitled to?”
14.The following additional issue was also framed:
“Whether the suit is pre-mature and whether the plaintiffs have a right to seek possession?”
15.During trial, the first plaintiff, Ravi was examined as PW-1. The defendant N.Natarajan, was examined as DW-1. The plaintiffs marked Ex-A1 to Ex-A4. Ex-A1 was the certified copy of the settlement deed, dated 07.06.1956, executed by Alwar Iyengar. Ex-A2 was the certified copy of the judgment in O.S.No. 502 of 1974 (District Munsif Court, Trichy), dated 19.02.1974. Ex-A3 was the judgment in A.S.No.580 of 1974 (Subordinate Court, Trichy), dated 28.01.1976. Ex-A4 was the birth certificate of the first plaintiff, dated 25.07.1974. The defendant marked Ex- B1 to Ex-B9. Ex-B1 was the original settlement deed, dated 07.06.1956, executed by Alwar Iyengar. Ex-B2 was the printed http://www.judis.nic.in 12 copy of judgment in O.S.No.105 of 1962 (Subordinate Court, Trichy) dated 11.09.1963. Ex-B3 was the printed copy of judgment in O.S.No.502 of 1972 (District Munsif Court, Trichy), dated 19.02.1974. Ex-B4 was the printed copy of the judgment in A.S.No.580 of 1974 (Subordinate Court, Trichy), dated 28.01.1976. Ex-B5 was the judgment in S.A.No.1869 of 1979, dated 08.07.1977. Ex-B6 was the certified copy of the judgment in O.S.No.935 of 1974 on the file of the I Additional Subordinate Court, Trichy. Ex-B6 was the memo in O.S.No.935 of 1974, dated 09.03.1979. Ex-B8 was the release deed, dated 04.02.1978, executed by Sivakamu Ammal in favour of Veeramalai Muthuraja. Ex-B9 was the sale deed dated 1.9.1971 executed by S.K.Samy Iyyer, power agent of Yamuna in favour of Veeramalai Muthuraja.
16.The learned Additional Subordinate Judge, Trichy, by judgment dated 15.09.2003, examined the evidence on record and found that under the settlement deed dated 07.06.1956, marked as Ex-A1 / Ex-B1, Alwar Iyengar had granted life interest to his Prithi Baryal Sivakamu Ammal. It was a registered document. Alwar Iyengar died on 15.07.1957. She was given http://www.judis.nic.in 13 permission to enjoy the property till her life time. Thereafter, the property was to devolve onto the children of her daughter Yamuna. The learned Sub Judge determined that Yamuna did not have any right over the suit property. It was held that after Sivakamu Ammal, the property would devolve on her grandchildren born through Yamuna. The learned Sub Judge also considered the judgment in O.S.No.105 of 1962, in which, a mortgage said to have been executed by Sivakamu Ammal in favour of Kaliamoorthy was declared to be null and void. The judgment in the said case was produced as Ex-B2.
17.The learned Sub Judge also considered the judgment in O.S.No.502 of 1972 and determined that in the said suit and in the first appeal and in the second appeal, it was held that Sivakamu Ammal had a right over the property till her life time. The learned Sub Judge also considered the contention of the defendant that Yamuna also had a life interest, which also enlarged into a full interest. However, he rejected the said contention. The learned Sub Judge then considered the settlement reached between Sivakamu Ammal and Yamuna in O.S.No.935 of 1974 and the release deed executed by Sivakamu http://www.judis.nic.in 14 Ammal on receipt of consideration and the fixed deposit made in the name of the minor. He also considered the contention that both Sivakamu Ammal and Yamuna, had life interest under the settlement deed and subsequently both became entitled as owners of the property. However, the learned Sub Judge held that Yamuna did not get any right under the settlement deed. The learned Sub Judge also observed that DW-1, who claimed to have purchased the property from Veermalaim Muthuraja, had not filed the said sale deed in Court.
18.The learned Sub Judge held that the defendant had failed to prove that he had an existing right over the suit property. The learned Sub Judge held that the defendant cannot question the claim of the plaintiffs to seek recovery of possession. He rejected the contention that the life interest of Yamuna enlarged into full ownership under Section 14(1) of the Hindu Succession Act, 1956. He held that Section 14(2) of the Hindu Succession Act, 1956 alone will apply insofar as Yamuna was concerned. He further held that consequently the plaintiffs had an existing right to institute the suit. He also found that the defendant who claimed right through Veeramalai Muthuraja was http://www.judis.nic.in 15 also bound by the judgment in the earlier suits. He also held that the findings in the earlier suits would not bind the plaintiffs. It was also found that the power of attorney, dated 05.04.1971, and the sale deed dated 01.09.1971, and the release deed, dated 04.02.1978, are all not binding on the plaintiffs. Finally, the learned Judge decreed the suit as prayed for.
A.S.(MD)No.47 of 2005:-
19.The defendant then filed the present appeal, challenging the judgment in O.S.No.900 of 1995, dated 15.09.2003.
20.Heard arguments advanced by Mrs.N.Krishnaveni, learned Senior Counsel for Mr.P.Thiagarajan, learned Counsel for the appellant and Mr.K.K.Senthil, learned Counsel for the contesting respondents.
21.The second respondent died pending the appeal and her legal heirs have been impleaded as 3rd to 5th respondents. For the sake of convenience, the parties will be referred as plaintiffs and defendant. The appellant was the defendant in the suit and the respondents were the first plaintiff/ legal representatives of the http://www.judis.nic.in 16 second plaintiff.
22.Mrs.N.Krishnaveni, learned Senior Counsel for the appellant pointed out that the suit property originally belonged to Alwar Iyengar. It was his self acquired property. He executed a registered settlement deed in favour of his Prithi Baryal Sivakamu Ammal. It is admitted that they were not married.
They were presumably living together. The certified copy of the registered settlement deed had been produced as Ex-A1 and the original had been produced as Ex-B1. According to the learned Senior Counsel, under the settlement deed, life interest in the property was granted to Sivakamu Ammal. It was also pointed out that Sivakamu Ammal had a daughter, Yamuna. She was a minor. In the settlement deed, it had been stated that both Sivakamu Ammal and Yamuna had a right to reside in the property and thereafter, the property will devolve on to the children of Yamuna. It is the contention of the learned Senior Counsel that this life interest was granted only in lieu of maintenance. Consequently, it had been contended that the life interest would blossom into full ownership. Both Sivakamu Ammal and Yamuna's life interest enlarged into full ownership http://www.judis.nic.in 17 under Section 14(1) of the Hindu Succession Act, 1956.
23.The learned Senior Counsel then stated that other litigations filed primarily to protect the property from 3rd parties. Thereafter, Yamuna had executed a power of attorney, dated 05.04.1971, in favour of S.K.Samy Iyer. On the basis of the said power of attorney, S.K.Samy Iyer sold the property by sale deed dated 1.9.1971 to Veeramalai Muthuraja. This documents had been produced as Ex-B9. O.S.No.935 of 1974 had been filed by Yamuna and Sivakamu Ammal against Veeramalai Muthuraja for a declaration that the sale deed dated 01.09.1971 executed by S.K.Samy Iyer is null and void and also for a declaration that the power of attorney, dated 13.04.1971 is null and void. This suit was settled out of Court and consequently, learned I Additional Subordinate Judge, Trichy, dismissed the suit by judgment dated 01.02.1978, and the decree was produced as Ex-B6. Ex-B7 was a memo signed by Kasthuri Rangan, Advocate for the plaintiffs in the said suit. This memo was also signed by Yamuna, Mahadevan and also by Sivakamu Ammal, who affixed her left thumb impression.
http://www.judis.nic.in 18
24.It was pointed out by the learned Senior Counsel that the sale deed in favour of Veeramalai Muthuraja had not been set aside in manner known to law. It was the further contention of the learned Senior Counsel that subsequently a release deed had been executed, which had been produced as Ex-B8. This dated 04.02.1978. It had been stated that the first plaintiff had been joined as an eo-nominee party and the the plaintiffs should have sought for a declaration to cancel the said document. In the absence of such a relief, the release deed would be binding on the plaintiffs. It was, therefore, stated that the plaintiffs have no right to seek title and also to seek recovery of possession. The learned Senior Counsel further stated that the Judgment will have to be interfered with and the suit will have be dismissed.
25.Mr.K.K.Senthil, learned Counsel for the respondents / plaintiffs disputed the contentions advanced by the learned Senior Counsel. He stated that in the earlier proceedings, Sivakamu Ammal claimed life interest alone. He further stated that her successor in interest cannot claim a large right than that. It was also pointed out that the intention of Alwar Iyengar was to ensure that the property goes to the grandchildren alone. http://www.judis.nic.in 19 It was also pointed out that if the first plaintiff did not have any pre-existing right over the property, then there was no necessity to include him as a party in the release deed. It was also pointed out that the appellant, who was the defendant had not produced any documents to show that he had an existing right over the property. The appellant/defendant had stated that he had purchased the property from Veeramalai Muthuraja. The said document had not been produced before the Court. The learned Counsel finally stated that the judgment under appeal must be upheld and that the appeal has to be dismissed.
26.In view of the above arguments, the following points arise for determination:
“1)Whether the life interest granted to Sivakamu Ammal under Ex-A1/Ex-B1, settlement deed, dated 07.06.1956 had enlarged into absolute title under Section 14(1) of the Hindu Succession Act?
2)Whether Yamuna obtained a life interest under Ex- A2/Ex-B3 and whether such interest enlarged into absolute title?
3)Whether the suit is maintainable, since Yamuna was alive on the date of suit?
4)Whether Yamuna had obtained right to execute power of attorney deed dated 05.04.1971 and whether the sale deed executed by the agent dated 01.09.1971 under Ex-B9 are valid and enforceable document transferring legal right to vendee, Veeramalai Muthuraja?
5)Whether the release deed dated 04.02.1978 under Ex-B8 is a validly executed document or whether the document is null http://www.judis.nic.in 20 and void?
6)Whether the suit is maintainable without seeking a relief to set aside the release deed, dated 04.02.1978 under Ex- B8?
7)Whether the plaintiffs are entitled for a declaration of title and consequential recovery of possession over the suit property?
8)Whether the plaintiffs are entitled to past and future mesne profits?
9)Whether the judgment under appeal requires interference?” Points answered:-
Point Nos.1 and 2:-
27.Alwar Iyengar was a Pandaram in Srirangam. He purchased a plot by sale deed dated 18.06.1953, from the Srirangam Cooperative Building Society from his self earnings and constructed a building. The suit property was land to a total extent of 4576 sq.ft., with building of 600 sq.ft., bearing D.No.C/12, Ranganathar Cooperative Colony, Srirengam, Trichy. Alwar Iyengar was in exclusive possession of the property, as owner till his life time. On 07.06.1956, he executed a settlement deed, registered as document No.1019/1956 in the office of the Sub-Registrar, Srirangam. The certified copy was produced as Ex-A1 and the original was produced as Ex-B1. In the settlement deed, he described himself as son of Sundaraja Iyyanger, http://www.judis.nic.in 21 Brahimin, Pandaram. The settlement deed was executed in favour of “vd; gphpjp ghhpahs; br';Fe;jh; tFg;g[ tPl;Lf;Foj;jdk; rptfhK mk;khs;”/ The words extracted above are quite significant. The lady was not his wife, did not belong to his caste. This was an important factor in the year 1959. In the deed, explaining the relationship between himself and Sivakamu Ammal, he stated that “ehq;fs; ,UtUk; VNfhgpj;Jk; vt;tpj Ntw;Wikad;dpapYk; FLk;g jk;gjpahfNtapUe;Jk; vq;fSf;F n[dpj;jpUf;Fk; VfGj;jphpAkhd nrq;Fe;jh; tFg;G ikdh; Rkhh; 6 taJs;s aKdh vd;gtUlDk; ,Ue;J Rf[Ptpahf tho;e;JtUfpNwhk;.
.
28.The sentences extracted are a little self contradictory. He had stated that he and Sivakamu Ammal were not married, but had cohabitated as husband and wife. He also stated that they had a minor daughter, Yamuma. He categorised her as of Senguthar caste. That caste is of the mother Sivakamu Ammal and not his caste. It must be mentioned that there is an underlying expression of him not accepting of the daughter Yamuna, whole heartedly. In the settlement deed, he had further stated as follows:
http://www.judis.nic.in 22 “.....Mr;rhug;gb tpthfk; elj;jpf; nfhs;s Nghjpa trjpapy;yhJ Rkhh; 25 tu\fhykhf gpuk;kr;rhhpahfapUe;J te;Njd;. gpd;G \ rptfhK mk;khs; vd;gtis vd; gphpj;jp ghhpahshf;fp nfhz;L mts; kNdh mgpg;gpuhaj;jpw;F vt;tpj tpNuhjkhd;dpapYk; vdf;F Ntz;ba rfy rtul;rizfisAk; vd;id ghh;j;jhs; vd;w ....... mts;Nghpy; vdf;Fs;s mgpkhdj;jpdhYk; ....... rptfhK mk;khs; mth; Mas;fhyk; tiu \ nrhj;ij jhd; VfNjr ghj;jpakhf ....... rptfhK mk;khs; Mas;fhyk; tiu tiu ,r;nrhj;ij mDgtj;Jf; nfhz;L tuNtz;ba ghj;jpag;gb ...... tUkhdq;fisf; nfhz;L mth;fs; fhyl;Nrg trjpfis nra;Jf; nfhz;L te;jgpd; mth;fSf;F Vw;gLk; thhpRfs; rh;tRje;jpu ghj;jpaj;JlDk; Gj;jpungsj;jpu guk;giuahfTk; .......vdf;Fk; \ rptfhK mk;khSf;Fk; cs;s aKdh gpd; gpwf;Fk; Foe;ijfs; vq;fs; ,Uthh; fhyj;jpy; ,Ue;J.....”
29.The reading of the above, indicates the following:
a)Alwer Iyengar considered himself as a Brahmachen. He had not married Sivakamu Ammal;
b)They lived in cohabitation for a long period of time;
c)They had a minor daughter Yamuna;
d)In recognition of such cohabitation, he had specifically given right to reside with life interest to Sivakamu Ammal and after Yamauna, absolute title to the children born through Yamuna.
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e) He did not give the same rights as declared to Sivagamu Ammal to Yamuna.
30.Section 14 of the Hindu Succession Act, 1956, is as follows:-
“14. 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 pro- perty 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 restricted estate in such property.”
31.Section 14(1) of the Act refers to the property acquired by a Hindu female by inheritance, devise, partition or in lieu of maintenance or by gift from any person, whether relative or not. The scope of Section 14(1) is quite wide. Any property possessed http://www.judis.nic.in 24 by a Hindue female, it shall be held by her as full owner even if it had been given to her as a limited owner.
32.Section 14(2) of the Act is an exception of the above provision, which also relates to a property acquired by way of gift or under a will or any other instrument, but where the terms of gift, will or other instrument prescribes a restricted estate in the property. In the present case, Sivakamu Ammal had been given life interest till her death to enjoy the property. However, Yamuna had been given interest till children are born to her. When children are born, they get absolute title over the suit property.
33.A careful interpretation of the settlement deed, Ex- A1/Ex-B1, reveals that the only predominant intention of the settler was to provide only for Sivakamu Ammal. He was obliged to her for providing companionship. He was not similarly disposed towards Yamuna. He did not accept Yamuna, whole heartedly. He still mentioned her as belonging to 'Senguthuvar' caste. It was the caste of Sivakamu Ammal. He did not give her the privilege of being attached to his own caste. He had stated in http://www.judis.nic.in 25 the settlement deed that when children are born to her, they would get absolute rights. Consequently, Ex-A1 / Ex-B1 has to be interpreted in two different ways insofar the rights granted to Sivakamu Ammal and Yamuna are concerned. Sivakamu Ammal was the only object of the settlement deed. She was granted all rights to stay in the property and to live in the property till her life time. Her right enlarged into an absolute title under Section 14(1) of the Hindu Succession Act, 1956. But, this benefit will not accrue to Yamuna, who was granted only a restricted estate. On the birth of her children, they get priority as owners. This interpretation would mean that Sivakamu Ammal independently would have right to deal with the property. But, Yamuna would not have any right to deal with the property, if children are born to her. Her estate is a restricted estate.
34.It had been contended by the learned Senior Counsel for the appellant that Sivakamu Ammal did not have any pre-existing right. I disagree with that contention. Sivakamu Ammal was living in cohabitation with Alwar Iyengar. He had stated that she looked after him and they have been living together. He felt obliged to her companionship. Consequently in his view, she had http://www.judis.nic.in 26 an existing right. However, he did not place Yamuna on the same footing. He was not obliged to her. He did not consider her as having any pre-existing right for maintenance. On the other hand, he had stated that if children were born to Yamuna, they would get absolute title over the property. Consequently, the settlement deed should be broken down and examined from the view point of Alwar Iyanger. This would lead to the following inferences:
1)Sivakamu Ammal can enjoy the property and live in the property till her life time;
2)Yamuna can live in the property, enjoy the property with a small covenant that when children are born to her, they would get absolute title over the property;
3)That Yamuna can reside in the property till her death was not specifically mentioned in the settlement deed.
35.It can be interfered that she can reside till her death, if she did not be get any children. Alwar Iyengar did not visualise a situation that Yamuna would never marry and continuously reside in the place. In the year 1956, when this deed was http://www.judis.nic.in 27 executed, the natural presumption any person will have about his daughter was that she would marry and go to live in her marital house. It is also for that reason, the settlement in favour of Yamuna has to be held as only a restricted settlement. It was not an absolute settlement. Her interest cannot flower into absolute ownership. Her children would be get entitled to the property automatically on birth.
36.The learned Senior Counsel placed reliance on (1977) 3 SCC 99, (V.Tulasamma and others vs Sesha Reddy), wherein, the Honourable Supreme Court considered the scope and ambit of Section 14(1) and 14(2) of Hindu Succession Act, 1956. It was laid down that Section 14(1) applies to the properties granted to a female Hindu by virtue of a pre-existing right of maintenance. It was further held that Section 14(2) applies when property is granted to a female Hindu for the first time without any pre-existing right. It was also stated that Section 14(2), which is in the nature of proviso to Section 14(1) must be construed strictly without impinging on the amplitude of Section 14(1). In that case, Venkatasubba Reddy, the husband of the appellant, V.Tulasamma, died in the year 1931. He left http://www.judis.nic.in 28 behind V.Tulasamma, his widow and also a step brother, Sesha Reddy. In 1944, V.Tulasamma filed a petition for maintenance. This was registered as a suit and an ex parte decree was passed. Thereafter, Sesha Reddy filed an application to record a compromise said to have been reached by the parties out of Court. V.Tulasamma opposed this application. The application was dismissed. The appeal fled by Sesha Reddy was also dismissed. Thereafter, an Execution Petition had been filed by V.Tulasamma. At that stage, a compromise memo was effected out of Court. Under the compromise, V.Tulasamma was allotted the suit schedule property, but, with only a limited interest therein and with no power of alienation. She continued to remain in possession, even after coming into force of the Hindu Succession Act, 1956. She leased out a portion of the property and sold some portion. Thereafter, Sesha Reddy filed a suit for a declaration that the alienations were not binding on him and would remain in force only till the life time of V.Tulasamma. It was argued on his behalf that V.Tulasamma had only a limited estate and it cannot be enlarged, to an absolute interest in view of Section 14(2) of the Act. The matter reached the Supreme Court and in paragraphs 68 and 69, the Honourable Supreme http://www.judis.nic.in 29 court laid down the scope and ambit of Section 14(1) and 14(2) of Hindu Succession Act, 1956, as follows:
“68.Since the determination of the question in the appeal turns on the true interpretation to be placed on sub-section (2) read in the context of sub-section (1) of section 14 of the Hindu Succession Act, 1956, it would be convenient at this stage to set out both the sub-sections of that section which read as follows:
"14(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 device, 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 what-ever, and also any such property held by her as stridharas immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shah 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 restricted estate in such property."
Prior to the enactment of section 14, the Hindu law, as it was then in operation, restricted the nature of the interest of a Hindu female in property acquired by her and even as regards the nature of this restricted interest, there was great diversity of doctrine on the subject. The Legislature, by enacting sub- section (1) of section 14, intended, as pointed by this Court in S.S. Munna Lal v.S.S. Raikumar(1) "to convert the interest which a Hindu female has in property, however, restricted the nature of that interest under the Sastric Hindu law may be, into http://www.judis.nic.in 30 absolute estate". This Court pointed out that the Hindu Succession Act, 1956 is a codifying enactment and has made far- reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance (1) [1962] Supp. 3 S.C.R. 418. and sweeps away the traditional limitations on her powers of disposition which were regarded under the Hindu law as inherent in her estate". Sub-section (1) of section 14, is wide in its scope and ambit and uses language of great amplitude. It says that any property possessed by a female Hindu,. whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The words "any property" are, even without any amplification, large enough to cover any and every kind of property, but in order to expand the reach and ambit of the section and make it all-comprehensive, the Legislature has enacted an explanation which says that property would include "both movable and immovable property acquired by a female Hindu by inheritance or device, 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 whatever, and also any such property held by her as stridhana immediately before the commencement" of the Act. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by subsection (1) of section 14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Sastric law, to abridge the stringent provisions against proprietary rights which were often regarded as evidence of her perpetual tutelege and to recongnize her status as an independent and absolute owner of property. This Court has also in a series of decisions given a most expansive interpretation to the language of sub-section (1) of section 14 with a view to advancing the social purpose of the legislation and as part of that process, construed the words 'possessed of' also in a broad sense and in their widest connotation. It was pointed out by this Court in Gummalepura Taggina Matada Kotturuswami v. Setra Veeravva(1) that the words 'possessed of mean "the state of owning or having in one's hand or power". It need not be actual or physical possession or personal occupation http://www.judis.nic.in 31 of the property by the Hindu female, but may be possession in law. It may be actual or constructive or in any form recognized by law. Elaborating the concept, this Court pointed out in Mangal Singh v. Rattno(2) that the section covers all cases of property owned by a female Hindu al- though she may not be in actual, physical or constructive possession of the property, provided of course, that she has not parted with her rights and is capable of obtaining possession of the property. It will, therefore, be seen that sub-section (1) of section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was 'subsequently acquired and possessed, she would become the full owner of the property.
69.Now, sub-section (2) of section 14 provides that 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 (1) [1959] supp. 1 S.C.R. 968. (2) A.I.R. 1967 S.C. 1786.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 restricted estate in such property. This provision is more in the nature of a proviso or exception to sub-section (1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi(1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1 ). It cannot be interpreted in a manner which would rob sub-section (1 ) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1 ). The language of sub-section (2) is apparently wide to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award pre- scribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of http://www.judis.nic.in 32 maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property. But that would virtually emasculate sub-section (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in sub-section (1 ), since in, most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Sastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of sub-section (1). The Explanation to sub-section (1) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting sub-section (2). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with reference to the con- text and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute. Sub-section (2) must, therefore, be read in the context of sub-section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre- existing (1) [1970] 2 S.C.R. 95. right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. This constructional approach finds support in the decision in Badri Prasad's case (supra) where this Court observed that sub-section (2) "can come into operation only if acquisition in any of the methods enacted http://www.judis.nic.in 33 therein is made for the first time without there being any pre- existing right in the female Hindu who is in possession of the property". It' may also be noted that when the Hindu Succession Bill 1954, which ultimately culminated into the Act, was referred to a Joint Committee of the Rajya Sabha, clause 15(2) of the Draft Bill, corresponding to the present sub- section (2) of section 14, referred only to acquisition of property by a Hindu female under gift or will and it was subsequently that the other modes of acquisition were added so as to include acquisition of property under an instrument, decree, order or award. This circumstance would also seem to indicate that the legislative intendment was that sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right-a kind of acquisition akin to one under gift or will. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.
37.The underlying principles enunciated in the above portions are that Section 14(1) applies to a property granted to a female Hindu in view of a pre-existing right of maintenance and Section 14(2) applies when a property is granted for the first time without any pre-existing right.
38. In (2018) 12 SCC 1 (Ranvir Dewan vs Rashmi Khanna and another), it had been held as follows:
http://www.judis.nic.in 34 “40......it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property.”
39.In the present case, it has to determined that whether Sivakamu Ammal had a pre-existing right for maintenance and also whether Yamuna had a pre-existing right for maintenance or whether they were granted life interest over the suit schedule property without any pre-existing right.
40.A reading of Ex-A1/Ex-B1, reveals that Alwar Ayyangar was indebted to Sivakamu Ammal for the love and affection showered by her. He was a Brahmin by caste. She was a http://www.judis.nic.in 35 Senguthuvar. Still, he called her as his gpuPjp ghh;ahs; - Prithi Baryal. He recognised her status and with intention to grant her security, settled the property with life interest to her. Consequently, her right will flower into a large interest in view of Section 14(1) of the Act. She can claim a pre-existing right in view of the care, with which she had taken of Alwar Ayyangar. She can legitimately seek to be maintained by him or maintained by his estate, even after his death. On the other hand, these factors will not apply to her daughter, Yamuna. Yamuna was not recognized by Alwar Ayyangar whole heartily. For reasons best known to him, he categorised her as belongs to Senguthuvar caste and not to his Brahmin caste. He stated that after Sivakamu Ammal, the property will devolve to the children born to Yamuna. Independently, it was stated that since Yamuna was a minor, she can reside in the property. But, she did not get that benefit out of any pre-existing right. If she married, there was no obligation on her to continue to reside in the property. Her right therefore cannot blossom into full interest. In view of the above reasoning, I hold that with respect to the point Nos.1 & 2, the life interest of Sivakamu Ammal alone will blossom into full title, but the interest of Yamuna will not blossom into full title. She http://www.judis.nic.in 36 was only a step in the ladder for the property to ultimately devolve to her children, namely, the plaintiffs in the suit. Accordingly, the point Nos. 1 and 2 are answered that the life interest of Sivakamu Ammmal will blossom into full ownership, but, Yamuna had a right to live in the house and the minute, children were born to her, her right extinguished. Her right was a restricted estate. Her right fell under Section 14(2) of the Hindu Succession Act, 1956, whereas, the right of Sivakamu Ammal will fall under Section 14(1) of the Hindu Succession Act, 1956.
Point No.3:-
41.In the additional written statement, a stand had been taken by the defendant that since Yamuna was alive, and since the suit property will devolve to the plaintiffs only on her death, the suit is pre-mature and not maintainable. I disagree with this contention. Yamuna did not have any interest, which would flower into absolute interest over the property. She did not have any independent right over the property. After the death of Sivakamu Ammal, the property would automatically devolve to the children of Yamuna. During the life time of Sivakamu Ammal, http://www.judis.nic.in 37 the property would enlarge into full interest in so far as she alone was concerned. When she dies, as a life interest holder, the succession as set out in Ex-A1 has to follow and the children of Yamuna, namely, the plaintiffs get absolute title irrespective of the fact whether Yamuna was alive or dead. Consequently, I hold that the suit is maintainable and is not pre-mature, even though Yamuna was alive on the date of institution of the suit.
Point No.4:-
42.Ex-A2/Ex-B3 are both copies of judgments in O.S.No.502 of 1972 on the file of the District Munsif Court, Trichy. The suit had been filed by Sivakamu Ammal against Yamuna, S.K.Samy Iyyar, Veeramalai Muthuraja and the Executive Engineer, Public Works Department. In the said suit, after stating that the suit property had been settled in her name by granting life interest to her by Alwar Ayyangar, by a registered document under Ex- A1/Ex-B1, dated 07.06.1956, Sivakamu Ammal had stated that after the death of Alwar Ayyangar, on 15.07.1957, she had been in exclusive possession and enjoyment of the property. She had further stated that the second defendant, S.K.Samy Iyyar had played a fraud on her. On the pretext of helping her, he had http://www.judis.nic.in 38 brought about a forged power of attorney, as if executed by the first defendant, Yamuna, her daughter. That document was produced as Ex-B2 in the said suit. It must be stated that the document was not marked in the course of proceedings in the present suit. It had been further stated that on the basis of the said power of attorney, S.K.Samy Iyyar, had executed a sale deed in favour of the third defendant, Veeramalai Muthuraja with respect to the suit property. Sivakamu Ammal raised two points in the said suit. She first claimed that Yamuna did not execute power of attorney and that it was a forged document. She then claimed that Yamuna did not have any right over the property and consequently the power of attorney was null and void. It was also stated in the suit that S.K.Samy Iyyar and Veeramalai Muthuraja, forcibly took possession of the suit property and rented out the same to the fourth defendant, the Executive Engineer, Public Works Department, Trichy. She had filed the suit seeking a declaration regarding her life interest over the property to collect the rental income from the defendants. Among the issues framed in the said suit, issue No.2, was “whether the sale deed dated 01.09.1971 and the power of attorney dated 05.04.1971 are forged documents?”. This was http://www.judis.nic.in 39 taken up for consideration first and the following findings were given by the learned District Munsif, Trichy:
“Issue 2:- This issue relates to the allegation that the sale deed (Ex.B-1) and the original of ExB-2 power of attorney deed are forged documents. Counsel appearing on both sides have endorsed on the plaint that no findings need be given on this issue which is recorded.”
43.The above leads this Court to interfere that fraud had been played on the said District Munsif Court, Trichy, consciously and deliberately by the parties actively assisted by their advocates. Both the Counsels had made an endorsement that findings need not be given on the issue relating to the forgery of the documents. It is pitiable that the learned District Munsif had also accepted such endorsement and rescinded from giving a finding. An issue of forgery cannot be compromised between the parties, and such sham compromise should not have been given the seal of approval by the Court. In the course of the judgment, the learned District Munsif further recorded the contention of Yamuna that she had not executed any power of attorney or any sale deed through the power agent. This observation had also attained finality. Declaration as sought for http://www.judis.nic.in 40 was granted to Sivakamu Ammal in the said suit. Challenging that judgment, the third defendant, Veeramalai Muthuraja filed A.S.No.580 of 1974, which came up for consideration before the Subordinate Court, Trichy. The judgment pronounced therein was produced as Ex-A3/Ex-B4. The judgment is dated 28.01.1976. In the course of framing points for determination in the appeal, the learned Subordinate Judge observed as follows:
“9.The trial Court held that since issue No.2 was agreed to be left open, the parties are governed by Ex.A-4 registered settlement deed dated 7-6-56 by the deceased admitted owner Alwar Ieyngar. The trial Court held that on a proper reading of Ex.A-4 settlement deed, the right of enjoyment for life has been given to the plaintiff in respect of the suit house as per Ex.A-4 settlement deed. The trial Court therefore, held that the plaintiff is entitled to life estate in respect of the suit house and is entitled solely to recover the rent from the defendants 2 to 4 and that the plaintiff is entitled to costs. So the suit was decreed as prayed for with costs.
10. At the time of hearing of appeal the Counsel for the rd 3 defendant / appellant wanted a finding on the question whether Ex.b-2 registered general power of attorney alleged to have been executed on 13-4-71 by the 1st defendant in favour of the 2nd defendant is forgery or not. But it is represented by the counsel for the plaintiff, that the 1st defendant has filed O.S.No. 935/74 in this court and it is pending trial on 11-3-76 on the very same question. So when issue No.2 is left open in the trial the 1st defendant is not entitled to ask for a finding regarding Ex.B-2 in this appeal. Such a finding cannot be given, when parties had agreed at the time of the trial to leave issue No.2 open.” http://www.judis.nic.in 41
44.It is, thus, seen that the learned Counsels, who appeared once again prevailed upon the Court to refrain from giving a finding on the issue of forgery surrounding the power of attorney said to have been executed by Yamuna in favour of S.K.Samy Iyyar. The issue was left open and actually point for determination was not framed in the appeal regarding that aspect. The first appeal was dismissed with costs. Challenging that Judgment, S.A.No.1869 of 1979 had been filed and the judgment dated 08.07.1977, was marked as Ex-B5. In the course of said judgment, it was observed as follows:
“The first defendant contended that she did not execute any power of attorney in favour of the 2nd defendant that the document said to be the power of attorney is a forged one and that under the sale deed executed by the 2nd defendant to the 3rd defendant the latter did not got any title. There was an issue on this question namely, issue No.2, in the trial Court. But the parties made an endorsement that issue need not be decided in the present suit. It would appear that there is another litigation between Yamuna Ammal, the 1st defendant herein on the one side and defendants 2 and 3 herein on the other regarding the truth and validity of the power of attorney and the sale deed.”
45.The High Court was also led to believe that a finding regarding forgery would be delivered in the course of the other suit in O.S.No.935 of 1974, which had been referred in the http://www.judis.nic.in 42 judgment in O.S.No.580 of 1974 under Ex-A3/Ex-B4. The second appeal was dismissed confirming the right of Sivakamu Ammal.
The following are facts established till that stage:
1)Sivakamu Ammal's right over the property had been declared by successive judgments in O.S.No.502 of 1974, A.S.No. 580 of 1974 and S.A.No.1869 of 1976.
2)In O.S.No.502 of 1974, Sivakamu Ammal had necessity to seek such a declaration because her daughter, Yamuna had allegedly executed a power of attorney in favour of S.K.Samy Iyyar on 05.04.1971 and on the strength of that power of attorney, S.K.Samy Iyyar had sold the property to Veeramalai Muthuraja, on 01.09.1971. Those two documents were assailed by Sivakamu Ammal. The first defendant in the suit, Yamuna confirmed that she did not execute power or attorney.
3)In the course of trial in O.S.No.502 of 1974, both the Counsels for the plaintiffs and the defendants made an endorsement that though an issue had been framed whether the said documents were forged or not, the issue of forgery can be kept open. Consequently, findings were not given on the issue of forgery.
http://www.judis.nic.in 43
4)In A.S.No.580 of 1974, the learned Counsel made a further endorsement / statement that another suit in O.S.No.935 of 1974 had been subsequently filed with specific reference to the said two documents and since trial is to commence in the said suit, a finding need not be given in the first appeal regarding forgery of the two documents and accordingly, the learned Subordinate Judge did not give any finding regarding forgery.
5)In S.A.No.1869 of 1976, again, this Court noted the observation of the First Appellate Court and refrained from giving any finding with respect to alleged forgery of the documents.
46.The judgment in O.S.No.935 of 1974 had been produced as Ex-B6. It was dated 01.02.1978. The fraud played by the advocates continued and spilled over to this suit also. To reiterate, they prevented any judicial finding being given, when a specific issue was framed in O.S.No.502 of 1974 with respect to forgery of the power of attorney. Later in the first appeal, they stated that a separate suit in O.S.No.935 of 1974 had been filed and the first appellate Court need not give any finding regarding http://www.judis.nic.in 44 whether there was forgery in the execution of the power of attorney. This representation was also noted by this Court in the judgment in S.A.No.1869 of 1976 and again a judicial pronouncement was not made regarding forgery. When opportunity was presented to give a finding O.S.No.935 of 1974, the judgment, dated 01.02.1978, reveals that a further fraud had been played on Court, The decree in O.S.No. 935 of 1974 is as follows:
“Decree:This suit coming on this day before me for final hearing in the presence of Thiru.S.Kasthuri Rengan Iyengar, advocate for the plaintiff and of Thiru.N.Subramanian, advocate for the defendant. The Court doth order and decree that the suit be and the same is hereby dismissed, as settled out of Court.”
47.It is very unfortunate that successive Courts have not given a finding on forgery and have permitted the parties to settle that issue out of Court.
48.Ex-B7, is the memo, dated 01.02.1978 filed in the Subordinate Court, Trichy in O.S.No.935 of 1974. It is as follows:
http://www.judis.nic.in 45 “thjp gpujpthjpf;F jhthr;nrhj;ijg;nghUj;j tpLjiyg;gj;jpuk; vOjp hp[p];jh;nra;J nfhLf;fpwgbahy; jhthfprhk; U[pahfptpl;lJ. Rpytd;dpapy; js;Sgbnra;Jtplyhk;. rh;f;fhh; Nfhh;l;L gPrpy; ghjp Nfhh;l;L gPir gpujpthjp nfhLf;fNtz;baJ.
xk;. aKdh L.T.L.,e;jfPuy; ,lJifngUtpuy; Nuif rptfhK mk;khs; sd) Maharajan, s/o. Mani Iyer, Rama Nagar, Srirengam.
xk;) V.Re;juka;ah; tp];tehjma;ah; fh;zk; jp.jh. Cjk;kNrhp sd)S.Kasthuri Rengan Advocate for plaintiffs 1.2.78”
49.The entire proceedings is tainted with. The Advocates prevented the Court from giving a judicial finding on the issue of fraud and forgery with respect to the execution of the power of attorney, dated 05.04.1971. Thereafter, they stated that Sivakamu Ammal executed a release deed in favour of Veeramalai Muthuraja, against whom Sivakamu Ammal had instituted a suit stating that he had forcibly taken possession of the suit property.
50.The only material fact now available is an assertion by Yamuna that she did not execute the power of attorney. She had no right to execute any power of attorney. When Sivakamu http://www.judis.nic.in 46 Ammal was alive, Yamuna had no right or title or interest over the property. O.S.No.935 of 1974, had been filed for a declaration that the power of attorney is a fraudulent document. This version by the plaintiffs cannot be simply brushed away by a compromise among the parties. The plaintiffs herein have been deprived of their title over the property by systematic played fraud by the defendants in O.S.No.502 of 1974 and in O.S.No. 934 of 1974. Effectively, they prevented Courts of law to give judicial finding regarding forgery. The only material available are the assertions of Sivakamu Ammal and Yamuna that the power of attorney is a forged document. At this point of time, this assertion will have to be accepted as true, valid and binding, since, deliberately, the Counsels for S.K.Samy Iyyar and Veeramalai Muthuraja prevented the Court from giving any finding otherwise. In view of all these facts, I hold that the power of attorney, dated 05.04.1971 is a null and void document and the consequential sale deed dated 01.09.1971 is non-est in law. Yamuna, who had no right to execute power attorney, had stated that the power of attorney said to have been executed by her in favour of S.K.Samy Iyyar is a forged document and the Counsels prevented the Courts from giving any finding on her statement. http://www.judis.nic.in 47 Naturally then the assertion will have to be taken judicial note and the power of attorney dated 5.4.1971 has to be declared as a forged document. Then naturally, the sale deed also will have to be declared as a non est document. The issues answered as above.
Issue Nos.5 and 6:-
51.Ex-B8 Release deed dated 04.02.1978, executed by Sivakamu Ammal in favour of Veeramalai Muthuraja had come into existing on the basis of a fraudulent agreement among the parties. O.S.No.935 of 1974 had been filed for a specific relief that the power of attorney dated 05.04.1971 and the subsequent sale deed dated 01.09.1971 had both been obtained fraudulently and particularly the power of attorney is a forged document. In that suit, an agreement had been entered into by the Advocates that Sivakamu Ammal will execute a release deed in favour of Veeramalai Muthuraja, The release deed has therefore, as its basis a fraudulent agreement, among parties with sole object to deny the plaintiffs their lawful right over the suit property. It is argued by the learned Senior Counsel for the plaintiffs that the first plaintiff was represented by his father, Mahadevan in the http://www.judis.nic.in 48 Release Deed. A prayer to set aside the release deed had not been sought in this suit. It was urged that the deed is binding on the plaitniffs. The principles that when a minor is included as a eo-nominee party and later when he wants to assail the document, he should seek a declaration regarding the same is a settled principle of law. But when fraud is the basis of the document, then the document is void ab initio. More over, it is very strange that the release deed had been executed in favour of Veeramalai Muthuraja, who already had a sale deed in his name with respect to the suit property. It was claimed by Sivakamu Ammal that the sale deed is a fraudulent document.
She filed a suit against Veeramalai Muthuraja. The very same person, who stood charged for fraud and forgery, was the beneficiary of the property through the Release Deed.
52.In 2006 5 SCC 353 (Prem Singh and others vs Birbal and others), the Honourable Supreme Court, held as follows “16.When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is http://www.judis.nic.in 49 non-est in the eye of law, as it would be a nullity.”
53.I hold that the release deed being a fraudulent document cannot be upheld by this Court. It is a void document. Its basis is not free consent. The basis is an agreement entered to defeat the rights of the plaintiffs and to grab the property. Consequently, I hold that the doubt being void ab initio, need not be set aside neither should there be a prayer to set aside the document. It is a non-est document in law. It is void. It is a null document. It does not give any right to the releasee. The point is answered accordingly.
Point No.8:-
54.The above discussion clearly shows that the title of the plaintiffs to the suit property has to be upheld. Sivakamu Ammal was a life estate interest holder in the property by virtue of Ex- A1/Ex-B1, executed by Alwar Iyengar. Her life interest flowered into absolute ownership. Yamuna had only a restricted estate under the settlement deed. It had been held that her right would not flower into an absolute estate. Yamuna was said to have executed a power of attorney dated 05.04.1971 in favour of http://www.judis.nic.in 50 S.K.Samy Iyyar. She denied execution. The issue was left open and not decided by the Courts in view of representation made by the counsels. In A.S.No.580 of 1974, the counsel stated that another suit in O.S.No.935 of 1974 had been filed and that the issue of forgery could be decided in that suit. In O.S.No.935 of 1974, the Advocates entered into an agreement to execute a release deed by Sivakamu Ammal in favour of Veeramalai Muthuraja. The entire transactions are clothed with fraud played upon Sivakamu Ammal. The release deed is void ab initio. According to Ex-A1/Ex-B1, the Children of Yamuna, who are the plaintiffs, Ravi and Jeyashree would finally inherit the suit property. The second plaintiff died and her legal heirs have been brought on record. They are the absolute owners of the property as on date.
55.It must also be mentioned that the appellant had not produced a single piece of paper to show his entitlement in the suit property. He is a trespasser. He does not have right. Even if he had any right, that right flowed from Veeramalai Muthuraja and cannot be sustained, since Veeramalai Muthuraja obtained his rights through fraud. The appellant is Public Works http://www.judis.nic.in 51 Department Contractor. It was originally stated by Sivakamu Ammal that S.K.Samy Iyyar and Veeramalai Muthuraja forcibly entered into the property and had let out the suit property for rent to the Executive Engineer, Public Works Department, Trichy, A whole gang of thieves and land grabbers have taken over the property. This cannot be permitted by Court. This has to be prevented. Consequently, declaration of right for past and future mesne profits as claimed by the plaintiffs is also granted in favour of the plaintiffs in the suit who are the respondents herein. The point is answered accordingly.
56.In the result, the appeal suit is dismissed with costs. The judgment and decree dated 15.09.2003 made in O.S.No.900 of 1995 passed by the learned II Additional Subordinate Judge, Trichy, is confirmed.
01.11.2018
Index :Yes/No
Internet :Yes/No
cmr
http://www.judis.nic.in
52
C.V.KARTHIKEYAN, J.,
cmr
To
1.The II Additional Subordinate Judge, Trichy.
2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
Pre-Delivery Judgment made in Appeal Suit (MD)No.47 of 2005 01.11.2018 http://www.judis.nic.in