Madras High Court
Laskhmana Pillai (Died) vs Alankaravel on 24 October, 2016
S.A.No.306 of 1995
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 19.01.2022
JUDGMENT PRONOUNDED ON :08.04.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.306 of 1995
1.Laskhmana Pillai (died)
2.sundaram (died)
3.Thiruvu Konar ....Appellants/Respondents 1, 3 & 7
/ Defendants 1,3 & 7
4.L.Ramasamy
5.Balasubramanian
6.Arasappan
7.Muppidathi ...Appellants/--/----
(The 4th appellant brought on record as legal heir of
the deceased 1st appellant vide order dated 24.10.2016)
(Appellants 5 to 7 brought on record as legal heirs of
the deceased 2nd appellant vide order dated 05.10.2015)
Vs
1.Alankaravel
2.Subbumanickavasagam
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3.Parameswaran
4.Arunachalam
5.Minor Umaya Parvathi
6.Kutralam
7.Mupidathi Ammal
8.Saraswathi
9.Munthiah Konar
10.Subbu Konar .....Respondents/Appellants(4 to 6) &
Respondents 4 to 6, 8 and 9
/Plaintiffs (4 to 6) &
Defendants 4 to 6, 8 and 9
(Minor 5th respondent is represented by her brother &
guardian Alankaravel-1st respondent)
(Respondents 6 to 10 joined as respondents as they are
not available readily to join the vakalth)
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, against the judgment and decree dated 03.03.1994
made in A.S.No.23 of 1992 on the file of the
Subordinate Court, Tenkasi preferred against the
judgment and decree dated 17.09.1991 made in O.S.No.371
of 1985 on the file of the District Munsif Court,
Tenkasi.
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For Appellants : Mr.G.Sridharan
For Mr.T.M.Hariharan
For Respondents : Mr.S.Meenakshi Sundaram
Senior Counsel
For Mr.N.GA.Nataraj
JUDGMENT
The defendants 1, 3 and 7 are the appellants herein.
2.The plaintiffs filed O.S.No.371 of 1985 before the District Munsif Court, Tenkasi for declaration of title over the first schedule property and for a declaration that the defendants are not entitled to execute a decree in O.S.No.88 of 1975 on the file of the District Munsif Court, Tenkasi. The plaintiffs further prayed for declaration of title over item Nos.2 to 5 of the suit schedule properties and for recovery of possession from the defendants. The trial Court decreed the suit with regard to item Nos.1 and 5 as prayed for. As against the disallowed portion of the decree, the plaintiffs filed A.S.No.23 of 1992 before 3/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 the Subordinate Court, Tenkasi. As against the decree over item No.1, the first defendant filed a cross appeal. The First Appellate Court confirmed the decree with regard to the second and fourth items of the suit schedule properties, in which, no decree was granted by the trial Court. However, with regard to the third item, the First Appellate Court reversed the judgment and decree of the trial Court and granted a decree in favour of the plaintiffs. As far as the cross appeal filed by the first defendant for item No.1 is concerned, the same was dismissed by the First Appellate Court. To summarise, the decree granted by the trial Court in favour of the plaintiffs for first item was confirmed by the First Appellate Court and dismissal of the suit by the trial Court for item nos. 2 and 4 were also confirmed by the First Appellate Court. The First Appellate Court reversed the dismissal of the suit with regard to the third item and granted a decree in favour of the plaintiffs. The decree granted by the trial Court for the fifth item is concerned, since there was no appeal by the concerned defendant 4/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 namely the third defendant, the said decree of the trial Court has become final. As against the said judgment and decree of the First Appellate Court, the present second appeal has been filed by the defendants 1, 3 and 7. The seventh defendant is none other than one of the legal heirs of the second defendant.
3.The plaintiffs have contended that the suit schedule properties consisting of five items and other properties originally belonged to one Gomathinayagam Pillai. The said Gomathinayagam Pillai had executed a registered settlement deed on 12.10.1941 under Exhibit A1. Under the said settlement deed, all the suit items are mentioned as first schedule. As per recital in the first schedule, the said Gomathinayagam Pillai has granted life interest in favour of his mother Thangammal and after her life time, the second life interest is created in favour of his wife Arunachalathammal and thereafter, the said property would devolve upon the legal heirs of the Gomathinayagam Pillai and Arunachalathammal. 5/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995
4.According to the plaintiffs, only after the death of the second life estate holder namely Arunachalathammal, his daughter Chellammal would be entitled to have any right, title or possession over the suit schedule property. During the life time of Arunachalathammal, (who is the wife of Gomathinayagam Pillai), Chellammal does not have any right or title to deal with the suit schedule property. However, the said Chellammal had proceeded to execute a mortgage deed in favour of the first defendant under Exhibit A2 on 23.07.1971 for the first item of the suit schedule property. The said Chellammal has also executed a sale deed for the second item of the suit schedule property in favour of the first defendant on 23.07.1971 under Exhibit A3. Chellammal has also proceeded to execute a sale deed in favour of the second defendant for item Nos.3 and 4 under Exhibit A4 dated 11.11.1970. Chellammal has also sold the fifth item of the suit schedule property in favour of the third defendant under Exhibit A5 on 03.01.1979. The plaintiffs are the children of the said Chellammal.
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5.Admittedly, the said Chellammal had died in the year 1980 and only in the year 1985, Arunachalathammal, namely the second life estate holder had passed away. In other words, Chellammal had predeceased the second life estate holder.
6.The plaintiffs further contended that the mortgages and the sale deeds said to have been executed by Chellammal during the life time of Arunachalathammal are invalid. Though Chellammal is said to have executed these documents for herself and on behalf of her minor children(plaintiffs in the present suit), the said transactions are not legally valid. According to the plaintiffs, the purchasers are not the bona fide purchasers for valuable consideration.
7.The plaintiffs further contended that pursuant to Exhibit A2 mortgage with regard to the first item of the suit schedule property, the first defendant had filed O.S.No.88 of 1975 before the District Munsif Court, Tenkasi for foreclosure of the mortgage. A 7/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 preliminary decree was granted in the said suit on 12.09.1990. Based upon the said preliminary decree, the first item was brought to Court auction. Hence, the plaintiffs have prayed that the decree is in-executable and the same is not binding upon the plaintiffs.
8.The plaintiffs have further contended that the said Chellammal had predeceased the second life estate holder and hence, the property is not vested with the Chellammal. That apart during the life estate holder namely Arunachalathammal, Chellammal did not have any right or title to deal with the suit schedule property. That apart, as per Exhibit A1 settlement deed, after the life estate of Arunachalathammal, the suit schedule properties have to be enjoyed by all the legal heirs of the Gomathinayagam Pillai and Arunachalathammal. It means that not only the Chellammal but also her children namely the plaintiffs are entitled to the share of the suit schedule property. In such circumstances, the said Chellammal was not entitled to exclusively deal with the properties against the interest of her children namely the plaintiffs. 8/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995
9.The plaintiffs have further contended that they are minors at the time when Exhibits A2 to A5 were executed by their mother Chellammal. That apart, their father namely Avudaiya Konar was alive and hence, when the natural guardian was alive, the mother was not entitled to represent her children. In the transaction, when the minors are entitled to a share in the suit schedule property without obtaining any permission from the Court, the mother who is not the natural guardian cannot deal with the property and it is in violation of statutory provision.
10.The first defendant filed a written statement contending that as per Exhibit A1 settlement deed, a vested right has been created in favour of Chellammal on her birth. Hence, even during the life time of her mother Arunachalathammal, Chellammal is entitled to deal with the properties. According to the first defendant, only the possession is postponed, but not the title or interest over the suit schedule property. 9/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 The first defendant further contended that the mortgage under Exhibit A2 and the sale deed under Exhibit A3 were created for the purpose of satisfying the loan amount borrowed by the plaintiffs's father which culminated in a decree in O.S.No.489 of 1997. The first defendant further contended that the plaintiffs' father also borrowed another loan which culminated in E.P.No. 82 of 1985. Only for satisfying these loans and the decree, the mortgage deed under Exhibits A2 and sale deed under A3 were executed.
11.The first defendant further contended that the plaintiffs are eo-nominee parties to Exhibits A2 and A3. According to the first defendant, the plaintiffs were also parties to O.S.No.88 of 1975 and hence, they cannot contend that the decree is not executable. When the father of the plaintiffs is alive, without impleading the father, the present suit is not bad for non-joinder of necessary party. The second item of the suit schedule property is not found in Exhibit A1 and hence, the plaintiffs are not entitled to a 10/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 decree for declaration of title for the said item of the suit schedule property.
12.The defendants 2 and 3 jointly filed a written statement contending that the father of the plaintiffs is alive and he has attested all the documents in Exhibits A2 to A5 and he is a necessary party to the suit. According to the defendants 2 and 3, who have dealt with item Nos.3 to 5 in the suit schedule properties, are the bona fide purchasers for the valuable consideration. According to the defendants 2 and 3, Exhibits A4 and A5 sale deeds in their favour were executed by Chellammal in which the plaintiffs are eo-nominee parties and the plaintiffs' father had attested the same. Hence, the defendants 2 and 3 prayed for dismissal of the suit.
13.The third defendant who has purchased the suit schedule property under Exhibit A5 has filed an independent written statement contending that there was a registered othi under Exhibit B3 in his favour and it 11/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 was followed by a sale agreement under Exhibit B7 dated 22.11.1978 which culminated in a sale deed in his favour under Exhibit B8 dated 03.01.1979 and hence, the suit as regards the fifth item of the suit schedule property should be dismissed.
14.The trial court after perusal of Exhibit A1 settlement deed, arrived at a finding that while life interest holder namely Arunachalathammal was alive, the vested interest holder namely Chellammal has sold away the suit schedule property in favour of the defendants 1 to 3. Hence, the transactions are not valid in the eye of law. The said Chellammal did not have any power to either mortgage the property or alienate the same when her mother Arunachalathammal (the second life estate holder) is alive. However, the trial Court found that item Nos. 2, 3 and 5 of the suit schedule properties did not form part of Exhibit A1 settlement deed. When these items are not found in Exhibit A1 settlement deed, the plaintiffs are not entitled to a decree as prayed for. The plaintiffs have established 12/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 the fact that the mortgage deed executed by their mother Chellammal in favour of the first defendant under Exhibit A2 is invalid and hence, the decree obtained by the first defendant in O.S.No.88 of 1975 as against the plaintiffs is not executable. The trial Court also found that the fifth item is mentioned in Exhibit A1 settlement deed. Since Chellammal did not have any right or title during the life time of the life estate holder, the sale deed executed by the said Chellammal in favour of the third defendant for the fifth item under Exhibit A5 is not valid. Based upon the said findings, the trial Court granted a decree as prayed for only with regard to item Nos.1 and 5. The suit prayed for item Nos.2 to 4 were rejected.
15.The First Appellate Court concurred with the findings of the trial Court with regard to interpretation of Exhibit A1 settlement deed. The First Appellate court also found that while the life interest holder was alive, the vested remainder namely Chellammal did not have any right or title to alienate 13/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 the suit schedule property that too under Exhibit A1 in which has been specifically recited that after the life time of Arunachalathammal, the suit schedule properties have to be enjoyed hereditarily. The said recital would mean including the grand-children of Gomathinayagam Pillai, who are the plaintiffs in the present suit. When the plaintiffs are also entitled to a share in the suit property, but dealing of the property by their mother namely Chellammal during her life time is not valid.
16.The First Appellate Court found that the third item of the suit schedule property found a place under Exhibit A1 settlement deed. Hence, the First Appellate Court proceeded to grant a decree with regard to the third item. However, the decree with regard to item Nos. 2 and 4 rejecting the plaintiffs' prayer was confirmed by the First Appellate Court. The first defendant has filed a cross appeal challenging a decree granted in favour of the plaintiffs for the first item. The First Appellate Court has also dismissed the cross 14/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 appeal. To summarise, there was a decree in favour of the plaintiffs for item Nos.1, 3 and 5. The prayer of the plaintiffs with regard to the second and fourth items were rejected by the First Appellate Court also. As against the same, the defendants 1, 3 and 7 have filed the above second.
17.The second appeal was admitted on the following substantial question of law originally framed at the time of filing of the second appeal and the additional substantial questions of law that was framed on 06.12.2021.
“1.Whether the alienations/encumbrances made by Chellammal, the holder of the vested remainder are not legally valid and binding and will not take effect on the death of Arunachalathammal?
2.Whether the suit is not barred under Section 47 C.P.C with regard to item no.1 of the suit schedule properties?
3.When the present plaintiffs were eo-nominee parties in Exhibit A4 sale deed, whether the present suit for declaration of title is maintainable without seeking the prayer to set aside Exhibit A4 sale deed? “ 15/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995
18.The learned counsel for the appellants contended that the Courts below have erroneously interpreted Exhibit A1 settlement deed. According to the learned counsel for the appellants, as regards the suit items, the said Gomathinayagam Pillai has granted life interest in favour of his mother Thangammal and after her life time, the second life interest was granted in favour of his wife Arunachalathammal and thereafter, the absolute interest in favour of legal heirs to be born through the said Gomathinayagam Pillai and his wife Arunachalathammal. Hence, according to the learned counsel for the appellants, Chellammal is the only daughter of the Gomathinayagam Pillai and Arunachalathammal. When Chellamal is the only daughter, the interest get vested in her favour on her birth. Only possession and enjoyment are postponed during the life time of both the life estate holders namely Thangammal and Arunachalathammal. Hence, according to the learned counsel for the appellants, the said Chellammal being the vested remainder, she is entitled 16/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 to deal with the properties and the purchaser will get title over the suit schedule property and their possession alone will be postponed. But, in the present case, the life estate holder namely Arunachalathammal who was alive on the date of transaction has not chosen to challenge the same. Even as per the plaint averments, Arunachalathammal and Chellammal namely the mother and daughter have collusively dealt with the properties. Hence, when the life estate holder and the vested remainder have joined hands in dealing with the properties, the purchaser will get title over the same. The learned counsel for the appellants further contended that in all the mortgage deeds and the sale deeds, the plaintiffs who are the children of Chellammal are eo-nominee parties. When they are eo- nominee parties to a document, without challenging the same, within a period of three years from the date of attaining majority, they cannot file the present suit for declaration of title over the said property. He further contended that the plaintiffs were also parties to O.S.No.88 of 1975 in which, a preliminary decree 17/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 has been passed as against the said Chellammal and the present plaintiffs. When the plaintiffs were parties to O.S.No.88 of 1975, the present suit for declaration of title and for declaration that the decree in O.S.No.88 of 1975 is in-executable and it is not maintainable. He further contended that when the plaintiffs are parties to a suit and they raised an objection with regard to executability of the decree, the same has to be done under Section 47 of C.P.C. Any suit with regard to the first item of the suit schedule property covered in O.S.No.88 of 1975 is clearly barred under Section 47 of C.P.C.
19.The learned counsel for the appellants relied upon (1971) 2 MLJ 35 to impress upon the Court that where a life interest is created without a power of alienation, thereafter vested remainder is granted to another person, the property is said to vest in possession of life interest holder and the vested remainder in favour of the ultimate donee on the date of the document itself. While the life interest holder 18/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 has no power to alienate, the vested remainder can deal with the same subject to the right of the life interest holder. He further contended that when the property is vested, the legatee can deal with it by sale, gift or Will as he pleases irrespective of the fact whether or not he had received the same. Hence, the learned counsel for the appellants contended that on the date when Chellammal was born, she gets vested interest in all the five items of the suit schedule properties, her possession and enjoyment alone is postponed till the life of the both life estate holders. When she is the absolute owner of the suit schedule property, she is entitled to mortgage the same or alienate the same. Hence, the document executed by Chellammal in favour of the defendants 1 to 3 under Exhibits A2 to A5 are valid documents.
20.According to the learned counsel for the appellants, the Courts below have not appreciated Section 20 of Transfer of Property Act. The learned counsel had contended that the mortgage deeds and the 19/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 sale deeds referred certain previous loan transaction and decree of the Courts below and only for satisfaction of the same, mortgage deeds and the sale deeds said to have been executed by Chellammal. He further contended that the father of the plaintiffs was alive when the suit was filed. However, he was not impleaded as one of the parties to the suit. Even though the defendants have taken a specific stand in the written statement that the suit is bad for non-joinder of father of the plaintiffs, the plaintiffs have not chosen to implead their father. Hence, the suit is bad for non-joinder of necessary party.
21.The learned counsel for the appellants had further contended that as regards the suit fifth item, the trial Court has granted a decree, the third defendant has not filed any appeal and hence, the decree in favour of the plaintiffs with regard to the fifth item of the suit schedule property has become final. The trial court as well as the First Appellate Court have dismissed the claim of the plaintiffs with 20/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 regard to item Nos.2 and 4 of the suit schedule properties and the plaintiffs have not chosen to file a second appeal and hence, the decree with regard to 2nd and 4th items of the suit schedule properties have also become final. Hence, the scope of the present second appeal is restricted only to item Nos.1 and 3 of the suit schedule properties. The defendants 1 and 2 alone are interested in the present second appeal. The seventh defendant who is the third appellant in the present second appeal is the legal heir of the second defendant.
22.The learned counsel for the appellants further contended that when Chellammal is having absolute right over the suit schedule properties, during her life time, her children namely the plaintiffs do not have any right or title over the suit schedule properties. Hence, alienation made by Chellammal cannot be questioned by her children. He further contended that the Courts below have erroneously interpreted Exhibit A1 settlement deed and 21/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 arrived at a finding that the children of the Chellammal are also entitled to a share in the suit schedule properties and proceeded to grant erroneous decree in favour of the plaintiffs.
23.The learned counsel for the appellants had further contended that since Chellammal was the absolute owner of the suit schedule properties by way of vested interest, any alienation made by her are not void. The First Appellate Court has erroneously found that the transaction entered into by Chellammal in favour of the defendants 1 to 3 are void and hence, they need not be a period of three years from the date of attaining majority. Hence, he prayed for allowing the second appeal and dismissing the suit with regard to item nos.1 and 3 also.
24.Per contra, the learned Senior Counsel appearing for the respondents/plaintiffs contended that a careful perusal of Exhibit A1 settlement deed will clearly indicate that Chellammal is not the exclusive 22/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 vested remainder. As per recital under Exhibit A1, the property has to be enjoyed by all the legal heirs of Gomathinayagam Pillai and Arunachalathammal jointly. Hence, the plaintiffs are also entitled to a share in the suit schedule property. He further contended that the Courts below have properly interpreted Exhibit A1 settlement deed and arrived at a finding that the sale deed executed by Chellammal in favour of the defendants 1 and 3 are void documents on the ground that minor's property has been dealt with by Chellammal.
25.The learned Senior Counsel appearing for the respondents further contended that two life estates have been created by Gomathinayagam Pillai under Exhibit A1 settlement deed. Chellammal had passed away in the year 1980, but Arunachalathammal, her mother had passed away only in the year 1985. To put it shortly, the vested remainder had predeceased the life estate holder. He further contended that when the life estate holder namely Arunachalathammal was alive, the vested remainder namely Chellammal will not have any right to 23/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 deal with the property. He further contended that on the date of death of Arunachalathammal, the property got devolved upon only on the plaintiffs, since she had already passed away in the year 1980. Hence, the plaintiffs alone are the owners of the suit schedule properties. Since the plaintiffs alone are the owners of the suit schedule properties, any transaction made by their mother Chellammal in favour of the defendants 1 to 3 during her life time is not legally sustainable and the documents are completely void.
26.The learned counsel for the respondents further contended that the fifth plaintiff was not a party to the suit in O.S.No.88 of 1975 and hence, the bar under Section 47 of C.P.C is not applicable to the fifth plaintiff and the present suit is perfectly maintainable.
27.According to the learned counsel for the respondents, as per recital in Exhibit A1 settlement deed, the property would get vested with Chellammal 24/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 only after the death of Arunachalathammal. In the present case, Chellammal had predeceased the Arunachalathammal. On the date of termination of the life estate holder, the plaintiffs alone were alive. Hence, the property got vested only in the hands of the plaintiffs. Hence, Chellammal did not have any right or title over the suit schedule property at any point of time. He further contended that since Chellammal did not have any right, title or possession at any point of time during her life time, transaction entered into by the said chellammal are all void documents. When Exhibits A2 to A5 are void documents just because the plaintiffs are made as eo-nominee parties, there is no necessity for them to challenge the said document. Hence, he prayed for confirming the judgment and decree of the First Appellate Court.
28.I have considered the submissions made on either side.
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29.The present second appeal is restricted to the consideration of the interpretation of Exhibit A1 settlement deed with regard to item Nos.1 and 3 alone. The entire case rests upon the interpretation of Exhibit A1 sale deed and what would be the right of Chellammal (vested remainder) during the life time of Arunachalathammal (life estate holder), the relevant recitals under Exhibit A1 settlement deed are as follows:
“mjhtJ ,jd; 1tJ jgrpy; fz;l nrhj;ij ehsJ Njjp Kjy; vd; jhahh;
jq;fk;khs; jd; MapRtiu ahnjhU ghuhjPdk; nra;ahkYk; rh;f;fhh; jPh;it nrYj;jpf; nfhz;L mDgtpj;Jf;nfhz;L mtshapRf;Fg;gpd;dhy; nrhj;ij vd; ];jphpahfpa 2tJ egh; mUzryjk;khs; jd;Dila RthjPdj;ij ahnjhU ghuhjPdKk; nra;ahky; mDgtpj;Jf;nfhz;L> mg;ghy; vq;fSf;FNaw;gLk;
thhPRfs; guk;giuaha; mDgtpj;Jtu Ntz;baJ 2tJ jgrpy; nrhj;J”
30.A reading of the recital in Exhibit A1 settlement will indicate that the life interest was granted to the mother of the Gomathinayagam Pillai and the wife of Gomathinayagam Pillai. After the 26/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 termination of both life estates, the vested remainder will devolve upon the legal heirs to be born to Gomathinayagam Pillai and Arunachalathammal.
31.The word “ vq;fSf;F Vw;gLfpw thhpRfs;” will only mean that the legal heirs who are born to Gomathinayagam Pillai and Arunachalathammal. The only legal heir born through Gomathinayagam Pillai and Arunachathammal is admittedly Chellammal. The word 'legal heirs' could only be construed to mean the children of Gomathinayagam Pillai and Arunachalathammal and it can never be interpreted to mean the grand-
children of Gomathinayagam Pillai and Arunachalathammal. Hence, it is clear that the vested remainder has devolved upon Chellammal who will be the absolute owner of the suit schedule properties.
32.The contention of learned Senior Counsel appearing for the respondents that the word 'legal heir' would also mean and include the grand-children is not legally sustainable. In case, any interpretation is 27/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 given to the recital in Exhibit A1 to the effect that the legal heirs mentioned under Exhibit A1 would also mean the grand-children born through Gomathinayagam Pillai and Arunachalathammal, it will be clearly in violation of Section 13 of Transfer of Property Act. Any interpretation which would ultimately result in voidness of the document, especially when there is no scope for interpretation, cannot be accepted. The said Chellammal was an unborn person at the time of execution of Exhibit A1 settlement deed. If the arguments of the learned Senior Counsel are accepted, on her birth she will also get only a life interest, till she grows, get married and children are born to her. Such an interpretation would clearly in violation of Sections 13 and 14 of Transfer of Property Act.
33. The learned Senior Counsel appearing for the respondents has relied upon the judgment of the Hon'ble Supreme Court reported in (2004) 1 MLJ Page 180 to impress upon the Court that the settlement made under Exhibit A1 was intended to be a joint benefit in favour 28/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 of the children and grand-children of Gomathinayagam Pillai and Arunachalathammal. As found by this Court in previous paragraph, a reading of the recital under Exhibit A1 does not provide a scope for such an interpretation. Hence, the said judgment is not of much help to the learned counsel for the respondents.
34.The learned Senior Counsel also relied upon a judgment reported in (2012) ILR (Karnataka) 4780 to contend that the purchasers under the sale deed executed by Chellammal cannot have any right over the same since Chellammal herself did not have title to the suit schedule property.
35.In view of the above said discussion that the Chellammal was the only legal heirs of the Gomathinayagam Pillai and Arunachalathamml and the vested interest devolved upon her, the contention of the learned Senior Counsel for the respondents that the said Chellammal is not the absolute owner of the property is not legally acceptable.
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36.The learned Senior Counsel further relied upon a judgment reported in (1993)4 SCC 38 to impress upon the Court that that father alone was the natural guardian of the plaintiffs and not their mother namely Chellammal. That apart, the plaintiffs had also got a right by birth in the suit schedule properties which are to be treated as minors' estate. Since the minors' property has been dealt with by the said Chellammal, without obtaining prior permission from the Court, the said transaction have to be treated as void transaction which does not warrant setting aside. Since this Court has already come to the conclusion that the Chellammal alone is the absolute owner of the suit schedule property, the contention of the learned Senior Counsel that the plaintiffs who are the children of the Chellammal would also be co-owners on par with their mother is not legally sustainable.
37.The mortgage deed has been executed by the Chellammal for the first item of the suit schedule property in favour of the first defendant under Exhibit 30/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 A2 on 23.07.1971. In the said document, except fifth plaintiff, all other plaintiffs are eo-nominee parties. The said Chellammal has executed a registered sale deed in favour of the second defendant under Exhibit A4 for the third item of the suit schedule property on 11.11.1970. Even in the said sale deed, except fifth plaintiff, all other plaintiffs are eo-nominee parties.
38.The learned counsel for the appellants had contended that since the plaintiffs 1 to 4 are eo-nominee parties under Exhibits A2 and A4, without seeking a prayer to set aside the document, the present suit for declaration of title over the said property is not maintainable. The learned counsel for the appellants relied upon a Division Bench Judgment of our High Court reported in 1996 1 CTC Page 661, in which paragraph No.17 of the said judgment reads as follows:
“17.In the former case, namely, Ramaswami Iyengar v.Rangachari 1940 (1) MLJ 32: I.L.R.1940 Madras 259, the Full Bench has gone one step 31/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 further and held that in a case where possession has passed to the alienee, there should be a prayer for setting aside the transactions before the plaintiff could recover possession from the said alienee with regard to the decrees passed against the minor children in which they had been eo nominee impleaded as parties, the Full Bench held that they should pay prescribed court-fees under Section 7(iv-A) of the Court-Fees Act as amended in Madras and they must be held to have impliedly asked for their cancellation and must accordingly stamp and plaint ad-valorem. Thus, the propositions laid down by the Full Bench do not go to the extent of saying that if an alienation is made by a father-Manager describing himself as guardian of the minor children who are members of the joint family, there is no necessity to pray for setting aside the transactions”
39.Admittedly, the plaintiffs 1 to 4 were the parties to the mortgage deed and the sale deed executed by their mother Chellammal. The plaintiffs 1 to 4 were also parties in O.S.No.88 of 1975. When the plaintiffs 1 to 4 are eo-nominee parties to a document, as rightly contended by the learned counsel for the appellants, 32/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 the present suit for declaration that the decree is not binding upon them or declaration of title, is not maintainable without a prayer for setting aside the said document namely Exhibits A2 and A4.
40.The plaintiffs 1 to 4 are defendants 2 to 5 in O.S.No.88 of 1975 in which a preliminary decree for purchaser was passed on 23.12.1978. The plaintiffs 1 to 4 were parties to a suit and they have also suffered a decree. The present suit has been filed by the plaintiffs 1 to 4 contending that the decree passed in O.S.No.88 of 1975 is not executable and binding upon them. The plaintiffs 1 to 4 are parties to O.S.No.88 of of 1975. Any challenge with regard to the executability of the decree, has to be made only by way of an application under Section 47 of C.P.C and not by a separate suit. Section 47 of C.P.C provides for determination of question arising between the parties to a suit in which a decree has been passed. When an issue relates to the execution of the decree, the same has to be determined by the Court executing the decree 33/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 and not by separate suit. Since the plaintiffs being parties (defendants 2 to 5 in O.S.No.88 of 1975) and they are challenging the executability and binding nature of decree therein, the present separate suit for declaration that the said decree is not executable is not maintainable.
41.Sections 19 and 20 of Transfer of Property Act , 1882 read as follows:
“19. Vested interest.—Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.
20. When unborn person acquires vested interest on transfer for his benefit.—Where, on a transfer of property, an interest therein is created 34/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth”.
42.A perusal of the above said provisions will clearly indicate that where the ultimate beneficiary is an unborn person, immediately on his birth, he acquires right, unless a contrary intention appears from the terms of the transfer. A reading of Section 20 also indicates that the said unborn person acquires a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth. In the present case, on the date of birth of Chellammal, she has acquired a vested interest in the suit schedule property, though her right of enjoyment has been postponed during the life of Thangammal and Arunachalathammal.
43.The learned counsel for the appellants relied upon a judgment of our High Court reported in 35/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 AIR 1971 Madras 458, in which, paragraph No.7, the learned Single Judge of this Court has held as follows:
“7...When a property has been given to a person to be enjoyed for life without any power of alienation, leaving the remaindermen to take over the property absolutely after the intermittent life interest, can it be said that the life interest holder becomes the owner during his lifetime?. In such a case, the property vests in the ultimate donee to whom the absolute estate has been given after the life interest and he has a present right of future enjoyment. If the interest given is in the nature of woman's estate as understood in Hindu Law, then the remainderman takes only a contingent interest. Section 119 of the Indian Succession Act, 1925 says that where by the terms of a bequest the legatee is not entitled to immediate possession of the thing banqueted, a right to receive it at the proper time shall normally become vested in the legatee on the testator's death and such interest is made heritable. Section 19 of the Transfer of Property Act also lays down that where, on a transfer of property, an interest therein is created in favour of a person specifying that it is to take effect after the termination of a prior interest in the same property give to some other person, such 36/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 interest vests on the date of the transfer and such vested interest is made heritable. In cases of vested interests, the gift is complete and immediate but only the enjoyment is postponed. It is well known that a vested interest is both transferable and heritable.....”.
44.Hence, it is clear that the said Chellammal had acquired vested interests on her birth and gift in her favour is complete and immediate, but only the enjoyment is postponed. The vested interest is transferable and also heritable. While Arunachalathammal (life estate holder) was alive, Chellammal (vested interest) had chosen to deal with the properties by way of mortgage and sale deeds. The mortgagee as well as the purchaser would not be entitled to get possession till the termination of life interest of Arunachalathammal but the title will get conveyed in favour of the purchasers. In the present case, though vested interest had chosen to create encumbrance over the suit schedule property during the life time of the life interest holder, the life estate 37/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 holder has never chosen to challenge the same. The plaintiffs in the present suit are the children of Chellammal who have no right whatsoever during the life time of Chellammal.
45.In view of the provisions of Section 20 of Transfer of Property Act, 1882, Chellammal had acquired vested interest on her birth. Hence, the contention of the learned Senior Counsel appearing for the respondents that only after termination of life estate in favour of Arunachalathammal, Chellammal would be entitled to have any interest in the suit schedule property is not legally sustainable. Since the property gets vested on her birth, Chellammal will be the absolute owner right from the date of her birth. Hence, the contention that only those who are alive after the death of life estate holder will be entitled to vested interest is also not legally sustainable.
46.Hence, viewed from any angle, Chellammal is the absolute owner right from her date birth and the 38/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995 encumbrances created by her during her life time are legally valid and the same cannot be questioned by the present plaintiffs.
47.The learned counsel for the respondents further contended that the fifth plaintiff was neither a party to the mortgage deed and the sale deed nor a party to O.S.No.88 of 1975. Since the fifth plaintiff was not a eo-nomine party to the document or in the suit, the bar under Section 47 of C.P.C.,cannot be invoked as against the fifth plaintiff. He further contended that the fifth plaintiff was not an eo-nomine party to Exhibits A2 and A4 and hence, she need not challenge the said transaction. When this Court has already arrived at a finding that only Chellammal is the absolute owner of the property, the fifth plaintiff whether she was an eo-nomine party or not to any one of the transactions, is not going to affect the title of Chellammal. Hence, his contention is liable to be rejected.
39/42 https://www.mhc.tn.gov.in/judis S.A.No.306 of 1995
48. In view of the above said discussions, the substantial questions of law are answered as follows:
(1).Alienation/encumbrance made by Chellammal namely vested remainder are legally valid and binding.
(2).The present suit filed by the plaintiffs who are the defendants 2 to 5 in O.S.No.88 of 1975 is barred under Section 47 of C.P.C., with regard to item No.1 of the suit schedule properties.
(3).The plaintiffs were eo-nominee parties to Exhibit A2 mortgage deed and A4 sale deed and hence, the present suit for declaration of title is not maintainable without seeking a prayer to set aside these documents.
49.In view of the above said discussions, all the substantial questions of law are answered in favour of the appellants. The second appeal is allowed. No costs.
08.04.2022
Index : Yes / No
Internet : Yes / No
msa
40/42
https://www.mhc.tn.gov.in/judis
S.A.No.306 of 1995
To
1.The District Munsif, Tenkasi.
2.The Subordinate Judge, Tenkasi
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
41/42
https://www.mhc.tn.gov.in/judis
S.A.No.306 of 1995
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.No.306 of 1995
08.04.2022
42/42
https://www.mhc.tn.gov.in/judis