Madras High Court
K. Narasimhan (Decd.), K. ... vs K. Rajagopal on 22 July, 2002
Equivalent citations: (2002)3MLJ404
JUDGMENT K. Govindarajan, J.
1. The plaintiffs having aggrieved by the judgments and decrees of the Courts below have filed this Second Appeal.
2. The suit property originally belonged to one C.A.Narayana Rao. He bequeathed life interest in the property mentioned in 'A' schedule to the will annexed to Ex.A5 in favour of his first daughter Rukmani Ammal, and thereafter absolutely to his grandsons born to Rukmani Ammal. The said will was probated in O.P.No.118/1961. The respondent claiming that he is the tenant with respect to the vacant land bearing Plot No.107, Door No.29, Deenadayalu Street, T.Nagar, Madras.17, measuring an extent of 1124 sq.ft., filed a petition under Sec.9(1)(a)(ii) of the Madras City Tenants Protection Act, 1921, (hereinafter called 'the act') in Eject.O.P.No.63/1973 on the file of the Small Causes Court, Madras, to direct Rukmani Ammal, the respondent therein to sell the said property to him at a price to be fixed by the Court.
3. The said Rukmani Ammal contested the petition contending inter alia that the petitioner in that O.P. was not a tenant to claim benefit under the provisions of the Madras City Tennats Protection Act, as he was let into possession in December 1956. It is also specifically stated that Rukmani Ammal was only a life estate holder, and she has got no right to alienate the said property. In the order dated 20.7.1978, without considering whether Rukmani Ammal was having any right to sell the property, the learned Trial Judge allowed that petition. Subsequently, in the order dated 28.4.1982, the IV Judge, Court of Small Causes, Chennai, on the basis of the report of the Commissioner held that the tenant is entitled to purchase 999 sq. ft. alone in the petition mentioned property from Rukmani Ammal. Subsequently, in the order dated 31.8.83, the IV Judge, Court of Small Causes, Chennai quantified the price to be paid by the tenant to Rukmani Ammal at Rs.23,750/-.
4. Meanwhile, Rukmani Ammal died on 5.8.85 and the appellants started to exercise their right as absolute owners of the property. Thereafter, tenant/respondent herein filed M.P.No.1791/84 to direct the appellants herein to execute the sale deed in his favour in respect of the said land. The said application was filed stating that "further, now I understand that the respondent (Rukmani Ammal) is only a life interest holder and the absolute right vests with the 2nd and 3rd respondents, I am able to obtain their name and address only now. Since this Hon'ble Court held that I am entitled to purchase the interest in the land as a city tenant under Sec.9 of the said Act, the respondents' family are liable to execute the sale deed in my favour." The same was contested by the appellants stating that the orders were obtained only against limited owner, namely, Rukmani Ammal, and she was not entitled to convey the property and so the tenant cannot ask the appellants to execute the sale deed.
5. In spite of the specific defence and the averments made in the affidavit, the lower court while disposing of the said M.P.No.1791/84 proceeded as if D.W.1, Rukmani Ammal's son has not given any evidence that her mother was only a life estate holder, and she had also not raised any such objections in the counter. Furthermore, it is specifically stated that the order passed against the deceased Rukmani Ammal is binding upon her heirs.
6. Meanwhile, the appellants filed suit in O.S.No.2129/87 on the file of City Civil Court, Madras seeking a decree to declare that the orders dated 20.7.1978 and 31.8.83 in O.P.No.63/1973 obtained by the respondent herein against Rukmani Ammal were not binding on the plaintiffs, and for consequential injunction restraining the defendants from proceeding with the ejectment O.P.No.63/1973 to get the sale executed through Court order. That M.P.No.1791/84 was allowed. Aggrieved against that order, the appellants filed an Appeal in Ejectment Appeal No. 7/86.
7. In the Appeal in Eject.Appeal No.7/86, the learned District Judge, appreciating the pendency of the said suit, has found that any decision in the Appeal could be only subject to the result of O.S.No.2129/87, but ultimately dismissed the Appeal. So, the appellants herein filed a Revision in C.R.P.No.1503/91. The learned Judge of this Court though rejected the Revision, the same was done on the basis that the dispute is pending before the civil court, and the appellants have obtained an order of status-quo by which the rights of the parties are sufficiently safeguarded and so the Revision need not be entertained.
8. In the said suit in O.S.No.2129/87, the tenant filed a written statement stating that he was the tenant with respect to the suit property and he got an order in O.P.No.63/73 to get the sale executed in respect of the suit property. It is stated that the tenant had deposited the entire amount into court. Since the order in O.P.No.63/73 has become final, the appellants/plaintiffs as legal representatives of Rukmani Ammal are bound to obey the said order. It is also stated that the civil court has no jurisdiction to try the suit. On that basis the tenant prayed for dismissal of the said suit.
9. The trial court has found that the plaintiffs cannot sustain the suit to set aside the order passed by the Small Causes Court, and that the suit is barred by limitation as it was not filed within three years, which can be filed on or before 31.8.86. Unfortunately, the trial court has found that Rukmani Ammal had absolute right in the suit property at the time of passing orders by the Small Causes Court. On the basis of the above said findings, the trial Court dismissed the suit. So the appellants filed Appeal in A.S.No.112/91. The same Presiding Officer, who dealt with the O.P.No.63/73 and passed the order dated 28.4.1982 had also decided the Appeal and ultimately accepted the findings of the trial court and dismissed the Appeal, confirming the judgment and decree of the trial court. Hence this Second Appeal.
10. The substantial question of law that was framed in this Second Appeal is:-
"Whether the property given under Ex.A5 to the mother of the appellants got enlarged into an absolute share under Section 14 of the Hindu Succession Act?"
11. The respondent/petitioner claiming as a tenant under the Act, filed a petition under Sec.9(1)(a)(ii) of the Act to direct the respondent therein, Rukmani Ammal, the mother of the appellants to sell the property in favour of the tenant at the price fixed by the court. It is relevant to mention here that though the said Rukmani Ammal has raised specific defence that she was only life interest holder and she did not have any right of alienation, without considering the said defence, the lower court ordered the said O.P.No.63/1973 filed by the tenant, and under the subsequent orders, as stated above, quantified the extent to be sold and also the amount to be paid by the tenant.
12. To declare that the said orders passed in O.P.No.63/1973 as not binding on them, the present suit was filed by the appellants. Both the Courts have rejected the case of the plaintiffs/appellants on the basis of the following findings:-
(1) The plaintiffs cannot sustain the suit in the civil Court as the orders passed in O.P.No.63/1973 had become final.
(2) Suit is barred by limitation as the suit was not filed within three years from the date of order dated 31.8.1983.
(3) The limited estate given to Rukmani Ammal had enlarged in view of Section 14(1) of the Hindu Succession Act, 1956 and so the order obtained in O.P.No.63/1973 directing the respondent therein to sell the property is valid in law and cannot be set aside, and the appellants as her Legal Representatives have to comply with the direction given in O.P.No.63/1973.
13. Before dealing with the other findings of the Courts below, I would like to appreciate whether the courts below are correct in coming to the conclusion that Rukmani Ammal's right had been enlarged under Section 14(1) of the Hindu Succession Act, 1956 and thereby she became absolute owner of the property. Unfortunately, no such plea was raised and no issue was framed to that effect. In spite of that, the courts below have dealt with the same and found that the life interest of Rukmani Ammal had enlarged and thereby she became absolute owner of the property. Such a finding cannot be sustained for want of pleading and evidence.
14. Even on merits, life estate was not given to Rukmani Ammal in lieu of any maintenance. Even the tenant had admitted in the affidavit filed in support of M.P.No.1761/1984 that the appellants are the absolute owners of the property. On reading of the will annexed to Ex.A5, dated 15.4.1942, in no stretch of imagination it can be concluded that the life interest of Rukmani Ammal had enlarged. Merely because Rukmani Ammal was in possession on the basis of limited right given under the said will, it cannot be said that Section 14(1) of the said Act can be applied automatically and that she had become absolute owner of the property. Both the Courts below have not properly appreciated the scope of Section 14(1) of the said Act and so the findings given by the Courts below cannot be sustained.
15. The appellants have filed the suit only on the basis that any order passed against Rukmani Ammal, their mother will not bind on them and so they cannot be compelled to convey their right in the suit property to the tenant on the basis of the said order in O.P.No.63/1973. It cannot be denied that the appellants are not claiming any right through their mother. They are claiming independent right under the will annexed to Ex.A5 under which absolute right has been given to the appellants, which was even admitted by the tenant, as stated above. So the courts below are not correct in holding that the order passed in O.P.No.63/1973 had become final and so as legal representatives of Rukmani Ammal, the said orders are binding on them and thereby they have to execute the sale deed. As already stated, the rights claimed by the appellants in the property is not as legal heirs of Rukmani Ammal, but as an independent right given under the will annexed to Ex.A5. The fact remains that Rukmani Ammal had only life interest in the property.
16. The general rule is that all rights of action and all demands whatsoever existing in favour of or against a person at the time of his/her death survive to or against his Legal Representatives. So, whatever right which could be enforced against the party against whom such orders were obtained, can alone be enforced against the Legal Representatives. The Legal Representatives have merely the right to continue the defence in the same lis. In the present case, the respondent/tenant got an order in O.P.No.63/1973 to sell the property to him by Rukmani Ammal, though she had only life interest. If at all, the respondent can enforce the orders only against her life interest. That right also does not survive on her death. Even if Rukmani Ammal is alive, by executing the orders passed in O.P.No.63/1973, the respondent won't get the absolute right in the property, even Rukmani Ammal executes the sale deed pursuant to the said orders. So, on her death, the respondent cannot claim more right by substituting the appellants. Therefore, merely on the basis that the appellants were substituted as legal heirs of Rukmani Ammal, on her death, it cannot be urged that the orders passed against Rukmani Ammal can be enforced on the appellants' independent right got under the said will.
17. So it cannot be said that the orders passed in O.P.No.63/1973 do bind on the appellants as no order was passed directing the appellants to sell the property. The orders were passed only against Rukmani Ammal. Though she claimed that she had only life interest and had no right to alienate the property, the said issue was not decided, but wrongly proceeded by the Courts below as if she had right to execute the sale deed in favour of the respondent/tenant. Since the appellants were not parties to the said orders, they cannot bind on the appellants.
18. Learned Senior Counsel appearing for the respondent-tenant has submitted that since the appellants have been impleaded as legal representatives in the execution proceedings, viz., M.P.No.1791/1984 on the death of Rukmani Ammal, they should have raised all the defence, and since they failed to do so, the orders passed are binding on them. In support of his submission, the learned Senior Counsel has relied on the decision in Chokkalingam v. Raman Chettiar, AIR 1946 Madras 209 and in Thiruvalloor Pillai v. Ramasami Naidu, (1971) II M.L.J. -2.
19. In my opinion, the principles laid down in the said decisions have no application to the facts of the present case. It is not in dispute that the appellants had been impleaded only as legal heirs of Rukmani Ammal in the execution stage and not on the basis that they got absolute right under the will. They have also specifically raised a defence by filing a counter stating that Rukmani Ammal had no right to sell the property as she had only life interest and they got absolute right in the property, and any order passed in the said O.P. against the Rukmani Ammal cannot be enforced against them. The learned trial Judge while disposing of M.P.No.1791/1984, unfortunately, contrary to the facts and defence raised, proceeded as if no defence was raised even by Rukmai Ammal stating that she had only life interest in the property and she has no right to execute the sale deed by alienating the property. On that basis, the learned trial Judge found that the appellants herein are bound to execute the sale deed as per the orders passed in the said O.P. But the trial court has not decided the dispute raised by the appellants regarding their independent right. The trial court failed to appreciate even the affidavit filed by the tenant regarding the rights of the parties. In the said affidavit, the tenant had specifically admitted that Rukmani Ammal had only life estate. Aggrieved against that order the appellants filed an Appeal in Eject. Appeal No.7/1986. In the said appeal, the learned Appellate Judge had taken note of the pendency of the civil proceedings in O.S.No.2129/87 and also found that any order in the Appeal would be subject to the result of the suit. But unfortunately he had dismissed the Appeal. Hence C.R.P.No.1503/91 was filed. The learned Judge of this Court, in view of the pendency of the civil suit and order of status-quo passed in the suit, found that he need not entertain the Revision as the rights of the parties have to be decided in the civil forum. The above said orders will clearly establish that the orders passed against the appellants who were impleaded as Legal Representatives of Rukmani Ammal are only subject to the result of the civil suit which is the subject matter in this Second Appeal. So, the contention that the proceedings, after impleading the appellants as legal representatives, have become final and so those orders passed in O.P.No.63/1973 are binding on the appellants cannot be countenanced.
20. In the decision in AIR 1946 Mad. 209 (supra), the creditors filed a suit against the testators. After his death, the executor under the will was brought on record as his legal representative. The executor also claimed to be a legatee with respect to the assets which were to be held by him in trust for charity. Ultimately, the decree was passed. In execution, the said properties were attached. The executor who was impleaded as legal representative objected to the attachment on the ground that the property was held by him as a trust for charity. While dealing with the said fact,the Division Bench of this Court has held as follows:-
"Here the appellant was a party to the suit and to the decree made therein, and, being the executor as well as a satisfied legatee as he claims to be, must be deemed to have litigated in both capacities, and, his title in either case having been derived under the same will, whatever pleas were available to him in the one capacity or the other must be deemed to have been concluded by the decree. It is to be noted that the will does not nominate the appellant as the trustee of the charities but charges him as executor to carryout all the directions contained therein including those relating to the conduct of the charities. In such circumstances, it would, as it seems to us, be carrying technicality to the verge of absurdity to hold that the respondent must bring another suit against the appellant to enforce his right under S. 361, Succession Act. There seems to be no warrant in the section for the view suggested for the appellant that the right under it can be enforced only by means of a general administration action."
21. This judgment cannot be made applicable to the facts of the present case. In the said case, the decree itself was obtained against the executor and on the basis that the claim with respect to the other capacity was not raised and so it must be deemed to have been concluded by a decree. But in the present case there is no such decree obtained against the appellants. Even the order passed in M.P.No.179/84 has not become final but it was concluded stating that it is subject to the result of civil proceedings.
22. Similarly, in the decision in (1971) II M.L.J. -2 (supra), the learned Judge has held that the appellant was brought on record as legal representative of the deceased mother and had clear notice that the property in dispute was attached and brought to sale as it belongs to the estate of the judgment-debtor, his deceased mother. The appellant should asserted his title to the property sought to be attached and sold at that stage. The said decision was given on the basis of the principles of constructive res judicata. It is also held that where the judgment debtor or his legal representative was served only with a notice under Order 21, Rule 66 of the C.P.C. and nothing more is alleged, the principle of constructive res judicata cannot be invoked for the purpose of defeating them from setting up their own title in subsequent proceedings. For the reasons set out above in paragraph 19, the above cited judgments cannot be put against the appellants. In the present case, factually the appellants raised the defence regarding their right and the same was not decided finally. So the courts below are not correct in holding that the judgment in O.P.No.63/1973 passed against Rukmani Ammal binds on the appellants also and it can be enforced against the appellants.
23. The next issue that has to be decided is regarding limitation. Since the appellants had become the absolute owner only on the death of Rukmani Ammal, namely, on 5.8.85, they filed the suit on 16.3.87 to assert their rights in the property and it is well within time. Even under Sec. 44 of the Indian Evidence Act, even the party to the suit may show that any judgment, order or decree delivered by a court is not competent to deliver it. So the courts below are not correct in holding that the suit is filed beyond the period of three years from the date of order in O.P.No.63/1973, namely, 31.8.83, as the said order was not passed against the appellants.
24. While deciding similar issue in Tribeni Mishra v. Rampujan, , it is held as follows:-
"13.It may be mentioned here that Shri Kailash Roy, appearing for the defendant-respondents, has contended that the question as to whether there was any fraud in connection with the compromise could not be gone into in the present litigation in view of the fact that the previous suit had been decreed on basis of the compromise and the defendants had not brought any suit for setting aside the decree within the prescribed time limit under Art.95 of the Limitation Act, 1908, the prescribed period of time limit for institution of a suit for setting aside a decree obtained by fraud or for other relief on the ground of fraud, was three years from the date when the fraud became known to the party and the same period of limitation has ;been prescribed under Art.59 of the new Litigation Act also. Hence, there cannot be any doubt that a suit by the defendants for setting aside the decree on basis of the compromise on the ground of fraud would have been barred by limitation unless filed within the prescribed time limit of three years from the date of knowledge of the fraud. Section 44 of the Evidence Act, however, provides as follows:-
"Any party to a suit or other proceeding may show that any judgment, order or decree, which is relevant under Section 40, 41 or 42 and which has been proved by adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion."
The question as to whether in view of these provisions, a decree or order can be challenged on the ground of fraud in a collateral proceeding without any suit for setting aside the decree came up for consideration before a Division Bench of this Court in the case of Bishnunath Tewari v. Mst.Mirchi, . In this case, there was a divergence of opinion between the two Judges of this Court, namely, Lashmikanata Jha, C.J. and Reuben, J., who initially heard the case, on which there was a reference to a third Judge, namely, Ramaswami, J., (as he then was)and he latter agreed with the views expressed by Lakshmikanata Jha, C.J. And observed as follows:-
"It is important to remember that fraud does not make a judicial act or transaction void but only voidable at the instance of the party defrauded. The judicial act maybe impeached on the ground of fraud or collusion in an active proceeding for rescission by way of suit. The defrauded party may also amply for review of the judgment to the Court which pronounced it. But the judgment may also be impeached in a collateral proceeding in which fraud may be set up as a defence to an action on the judgment or as an answer to a plea of estoppel or res judicata found upon the judgment."
It was further held in this case that the provision relating to limitation as provided in Art.95 of the Limitation Act has no bearing in relation to S. 44 of the Evidence Act. As would appear from the terms of Section 44 of the Evidence Act, already quoted above, this section lays down that any party to a suit or other proceeding may show that judgment, order or decree referred to in the section,which has been proved by the adverse party,was delivered by a Court and competent to deliver it or was obtained by fraud or collusion. The right as given by this section has not been fettered by any limitation whatsoever and it is manifest that such a right is quite independent of the right to get a judgment or decree etc. set aside by bringing regular suit for the purpose. I, therefore, fully agree with the views expressed in the earlier decision of this Court referred to above and hold that such a plea can be raised under Section 44 of the Evidence Act in a collateral proceeding irrespective of the time when the judgment was delivered or decree or order was passed. The aforesaid contention of Shri Kailash Roy is accordingly rejected as being quite untenable. This, however,makes no difference so far as the result of this appeal is concerned in view of the findings above that there was no fraud in connection with the compromise in question."
25. Moreover, as rightly submitted by the learned counsel appearing for the appellants, the order passed in O.P.No.63/1973 at the instance of the tenant to sell the property itself was without jurisdiction, as the tenant has no right to file such a petition, without even the landlord filing any petition for ejectment.
26. The Division Bench of this Court in the decision Balakrishnaraja, P.S.& others, v. S.K.Alagar Raja and others, 1994-1-L.W. 582, decided the said issue and held as follows:-
"23.In the result, we hold that S.9(1)(a)(ii) of the Tamil Nadu City Tenants' Protection Act introduced by the Tamil Nadu Act 24 of 1973 is unconstitutional in so far as it relates to tenants against whom a suit for ejectment has not been instituted or a proceeding under S. 41 of the Presidency Small Cause Courts Act, 1882 (Central Act 15 of 1882) has not been taken by the landlord. In these cases, no suit for ejectment has been filed by the landlord. Hence, the Original Petition filed by the tenants in the Court of District munsif, Srivalliputhur, are unsustainable and are liable to be dismissed."
27. In this case since Small Causes Court had entertained O.P.No.63/1973 without having any jurisdiction that order passed in the said O.P. has to be held as a nullity. This view of mine is supported by the decision in Kiran Singh v. Chaman Paswan, , in which it is held as follows;-
"...It is contended that even if the decree and judgment of the District court on appeal are not to be treated as a nullity and the matter is to be dealt with under Section 11 of the Suits Valuation Act,the appellants had suffered "prejudice" within the meaning of that section,in that their appeal against the judgment of the Subordinate Judge was heard not by the High Court but by a Court of inferior jurisdiction, viz. the District Court of Menghys and that its decree was was therefore liable to be set aside,and the appeal heard by the High Court on the merits as a first appeal.
(6)The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction and what the effect of section 11 of the Suits valuation Act is on that position. It is a fundamental principle well established that a decree passed by a Court without jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it is sought to be suffered or relied upon even at the stage of execution and even in collateral proceedings. A defect of jurisdiction, whether it is pecuniary or territorial, or whether, it is in respect of the subject-matter of the action strikes at the very authority of the Court to pass any decree, and such a decree cannot be cured down by consent of parties...."
28. So it is clear that if a Court has no jurisdiction over the subject matter, its judgments and orders are mere nullity, and may be set aside at anytime by the court. Moreover, an order passed without jurisdiction is a nullity and so it need not be set aside. Apart from this, those orders got against Rukmani Ammal do not bind the appellants, for the reasons stated above.
29. The learned Senior Counsel appearing for the respondent has submitted that the plaintiffs' right to claim the property under the provisions of the Act has to be protected in these proceedings while deciding the other issues. I am not able to accept the said submission. In the present case, we are not concerned about the right of the respondent/defendant under the provisions of the Act. If the appellants are entitled to such right under those provisions, they can always invoke and enforce such right whenever occasion arises.
30. In view of the above, the judgments and decrees of the courts below cannot be sustained. Hence they are set aside. The suit filed by the plaintiffs is decreed as prayed for. Consequently, this Second appeal is allowed. No costs.