Madras High Court
Madhavan vs Kannammal And Ors. on 25 November, 1987
Equivalent citations: (1989)1MLJ136
JUDGMENT Srinivasan, J.
1. The properties involved in both the suits, out of which these appeals arise, belonged originally to one Vazhithunai Mudaliar. Though there was a controversy in the Court below whether the properties belonged to him absolutely as his self acquired properties or his joint family properties, that controversy is not present in this Court. It is now admitted on all hands that the properties belonged absolutely to Vazhithunai Mudaliar. He died on 18.12.1948 leaving a will dated 15.3.1944 marked as Ex.B.43. He had a wife by name Kanniammal, four daughters, namely, Nagarathinammal, Kanakavalli Ammal, Indirani Ammal and Kanakammal and a son by name kanniappa. Kanniappa died on 3.4.1963 leaving a widow by name Muniammal. Nagarathinammal had two sons, Madhavan and Vasudevan. The appellant in both the appeals is the said Madhavan. It is not necessary to refer to the other members of the family for the purpose of these two appeals.
2. Kanniammal, the wife of Vazhithunai Mudaliar, filed a suit in O.S. No. 4 of 1969 for partition and separate possession of her 3/4th share in the properties left by her husband claiming that she was entitled to one half share on the death of her husband and got another one fourth share on the death of her son. That suit was contested by her daughter-in-law, Muniammal. That ended in a compromise where-by certain properties were allotted to Kanniammal and certain other properties were allotted to Muniammal. Thereafter, Muniammal filed O.S. No. 10 of 1965 for a declaration of title of herself and that of her mother-in-law Kanniammal to the plaint-schedule properties and for an injunction restraining defendants 2 to 6 from interfering with their possession. The second defendant was Nagarathinammal. The third defendant was her husband. Defendants 4 to 6 were her sons. When that suit was pending, Kanniammal filed O.S. No. 62 of 1971 for a declaration of her title to the suit properties and for an injunction restraining the defendants from interferring with her possession. The defendants in that suit were Nagarathinammal and her sons and alieness from them. Muniammal filed another, suit in O.S. No. 63 of 1971 against Nagarathinammal, her sons and two other for a declaration of her right to the suit properties and for an injunction. In O.S.62 of 1971, Kanniammal, had claimed damages on the ground that the defendants had unlawfully removed, the produce from the land. In O.S. No. 63 of 1971, Muniammal had claimed damages in a sum of Rs. 7,000 on the ground that the 4th and 5th defendants had cut and carried away trees worth Rs. 2,000 and the other defendants had removed the produce from the land worth about Rs. 5,000.
3. All the three suits and a fourth suit filed by a lessee were tried together. The trial Court held that the will executed by Vazhithunai Mudaliar was genuine and valid. However, the trial Court held that the plaintiffs were not entitled to any relief in the suit as they had traced their title not to the will of Vazhithunai Mudaliar, but to a partition effected by kanniappa during his lifetime on 25.2.1963. It has to be pointed out at this stage that the plaintiffs claimed in the plaint that the properties were joint family properties of Vazhithunai Mudaliar and Kanniappa and after the death of Vazhithunai Mudaliar, Kanniappa had effected a partition between himself and his mother on 25.2.1963 and the suit properties were allotted to the mother in that partition. It was also claimed by Muniammal that she became one of the heirs of kanniappa and obtained the suit properties. The Trial Court took the view that the plaintiffs could not get a decree because they had made a claim only on the footing that the properties were joint family properties and that the properties were allotted to them in the partition dated 25.2.1963 effected by Kanniappa.
4. There were three appeals to the District Court, Chengalpattu. The learned District Judge confirmed the finding of the trial Court that Ex.B.43 will, executed by Vazhithunai Mudaliar was genuine and valid. The learned Judge, however, differed from the trial Court with regard to the grant of relief. He took the view that just because of the plaintiffs have traced their title to the partition effected by Kanniappa and claimed wrongly in the plaint that the properties were joint family properties of Vazhithunai Mudaliar, they could not be denied the relief when it was found that under Ex.B.43 the properties were allotted to Kanniappa Mudaliar, son of Vazhithunai Mudaliar and that his mother and wife namely, Kanniammal and Muniammal were the only heirs of Kanniappa Mudaliar. Consequently, the learned District Judge granted decrees, as prayed for, by the Plaintiffs and also found that they were entitled to damages as claimed by them. With regard to the suit O.S. No. 10 of 1365 the learned District Judge held that there was no need to pass a decree in that suit as the matter was covered by the decrees in the other two suits, namely O.S.Nos. 62 and 63 of 1971.
5. In these two second appeals, the decrees granted in O.S.Nos. 62 and 63 of 1971 are challenged. Mr. N. Sivamani, learned Counsel appearing for the appellants puts forward the following contentions: (1) The plaintiffs having come to Court with a specific case that the properties were joint family properties of Vazhithunai Mudaliar and that after his death they were divided by Kanniappa Mudaliar in a partition dated 25.2.1963 and that they were entitled to the properties by virtue of the said partition, were not entitled to abandon that case and claim relief on the basis of the ease set up by the defendants, viz., the properties were the self-acquired properties of Vazhithunai Mudaliar and that he bequeathed the same under Ex.B.43 to his son Kanniappa and his daughter Nagarathinammal, (2) On a construction of Ex.B.43 it has to be held that the properties bequeathed to kanniappa would pass on to Nagarathinammal's heirs when Kanniappa Mudaliar died without an issue. Hence, neither Kanniammal, the mother of Kanniappa, nor Muniammal, wife of Kanniappa is entitled to claim the suit properties. (3) As regards the damages claimed by the plaintiffs in both the suits, there is absolutely no evidence on record in support of the said claim. While the trial Court did not find it necessary to consider the question of damages as it proceeded to dismiss the suits, the lower appellate Court without proper discussion of the matter proceeded to grant a decree as prayed for, by the plaintiffs and hence the judgment and decree of the lower appellate Court with regard to damages are wholly unsustainable. (4) Kanniammal died during the pendency of the suit and her daughters Kanakavalli Indirani and Kanakammal came on record as her legal representatives claiming that Kanniammal had bequeathed her properties to them under a will dated 20.10.1970 marked as Ex.A.16. Though the genuineness of the will has been upheld, in the application to bring the legal representatives on record, it should be observed by this Court that the conclusion arrived at by the trial Court in the proceedings to bring the legal representatives on record is not final and that the question whether the will of Kanniammal is genuine or not should be left open to the decided in future proceedings that may be instituted by Nagarathinammal's heirs who will be entitled to a share in the properties as the grand children of Kanniammal in the event of her intestacy.
6. I will proceed to consider the above four contentions seriatim. As regards the first contention that the plaintiffs cannot abandon their case and rely upon the case set up by the defendants in order to get a decree, a learned Counsel places, reliance upon a judgment of mine in Pravin Kumar v. P. Rajeswaran (1987)2 M.L.J.481 : 100 L.W.895 and the two cases referred to the in viz., Govindaraj v. Kandasami Gounder and Subramania Mudaliar Ammapet Co-operative Weavers' Production and Sales Society . Learned Counsel also drew my attention to the decisions in Kandaswami Udayar v. T.S. Karuppudayar 82 L.W.99 and L Balamukanddas v. K. Kothandapani, 84 L.W. 172 In all those cases, it has been laid down that it is not open to a plaintiff to abandon his own case and claim relief on the basis of the defendant's case. In my view the said proposition will not apply to the facts of the present case. That principle can be invoked only in cases where the plaintiff having failed to prove the case with which he approached the Court seeks to rely on the pleading of the defendant to secure a relief and not to cases like the present one where the plaintiff prays for relief on the basis of facts established by the record in the case even though they are at variance with his pleading.
7. In the present case, the question relates to title to the suit properties. Admittedly, the properties belonged originally to Vazhithunai Mudaliar and on his death his son Kanniappa Mudaliar became entitled to the same. Vazhithunai Mudaliar had admittedly executed the will, Ex.B.43 by which he bequeathed the present suit properties to his son Kanniappa Mudaliar. He bequeathed another set of properties to his daughter, Nagarathinammal. The properties which were bequeathed to Nagarathinammal are not the subject matter of these suits. When the plaintiffs are entitled to the properties by virtue of the will. Ex.B.43, and by succession to Kanniappa Mudaliar on his death they would not lose their title by wrongly tracing their title to a different source, viz., partition effected by Kanniappa. This is not a case in which they had to depend upon the factum of partition effected by Kanniappa Mudaliar for obtaining title to the properties. They had title to the properties otherwise than by the said partition. The fact that there was a partition effected by Kanniappa Mudaliar is not in dispute. The only question is, whether that partition, effected by Kanniappa Mudaliar is valid or not. That does not really matter in this case because so far as the suit properties are concerned, they did belong to kanniappa Mudaliar. Kanniappa Mudaliar got those properties by virtue of the will executed by his father, Vazhithunai Mudaliar. Even if there had not been a will by Vazhithunai Mudaliar, Kanniappa Mudaliar would have got the properties as the son of Vazhithunai Mudaliar. Even if there had not been a will by Vazhithunai Mudaliar, Kanniappa Mudaliar would have got the properties as the son of Vazhithunai Mudaliar. It is only a mistake in tracing the history of title to the properties that was committed by the plaintiffs. Such a mistake cannot deprive them of their title to the properties. When the Court finds on the facts that title to the properties vested in Kanniappa Mudaliar and thereafter devolved on his wife and mother by virtue of the provisions of the Hindu Succession Act, then it will not be proper for the Court to refuse relief on a technical ground that they had not set out the correct root of title their plaints. It cannot be disputed that the Courts of law have power to grant decrees which would be warranted by the facts of the case when such facts have been established by indisputable records even if they were not exactly pleaded by the parties. It will be unjust to dismiss the suits on a technicality and drive the plaintiffs to fresh suits.
8. When both the Courts have found that Ex.B.43 is genuine and valid, then the title of Kanniappa Mudaliar to the suit properties cannot be denied by the defendants. It cannot be disputed that Kanniappa Mudaliar's title to the properties could devolve only on his mother and wife. The defendants were not the heirs of kanniappa Mudaliar by any means. Hence, the lower appellate Court has acted in accordance with principles of justice equity and good conscience and has not in any way transgressed any provision of law in granting a decree in favour of the plaintiffs on the basis of Ex.N.43, the will of Vazhithunai Mudaliar, Hence, I reject the first contention put forward by learned Counsel for the appellant.
9. In Firm Srinivas Ram v. Mahabir Prasad , it has been held that it will not be proper to drive the plaintiff to a separate suit when he seeks a decree upon the case which the defendant himself makes out and when no injustice can possibly result to the defendant. It is not necessary to multiply the authorities on this aspect of the matter.
10. The second contention advanced by the learned Counsel for the appellant turns on the construction of Ex.B.43. The relevant clauses in Ex.B.43 read as follows.
11. Learned Counsel submits that these words are redundant. It is not proper for the Court to adopt a construction which would lead to redundancy of certain words used by the testator. Any construction of a document must be in such a manner that it would give meaning to all the words used by the testator. The entire document must be taken into consideration and the language used by the testator has to be considered before the interpretation is given. There is no doubt in my mind that the testator intended only that his sons' heirs, whoever they may be in law, would take all the properties in the event of Nagarathinammal's sons dying without any issue and his son dying without any issue. It is not possible to accept the construction sought to be placed by learned Counsel for the appellant.
12. As regards the third contention learned Counsel is perfectly justified in his criticism of the Judgment of the lower appellate Court, in that there is no reasoning given by the learned District Judge while granting a decree for damages. The learned District Judge has proceeded on the footing that the claim for damages was very small and that was made as early as in 1971 and at the time when he passed the decree on 1985, the value of the amount claimed had gone down very much and, therefore, there was no harm in granting a decree in favour of the plaintiffs. There is no doubt that the reasoning is wholly fallacious. The learned appellate Judge ought to have considered the evidence on record and come to conclusion whether the plaintiffs have proved their claim for damages. As the learned appellate Judge, has failed to do his duty. I am obliged to consider the evidence on record under Section 103 of the Civil Procedure Code and decide, the question of damages.
13. P.W.1. has in her chief-examination stated that the crops raised by her were cut and carried away by Madhavan, Vasudevan and the men of Nagarathinammal. She estimated the yield at 125 bags of paddy. She has deposed that the price of one bag of paddy was Rs. 50 She has also stated that the defendants have cut and carried away the trees, weighing about 40 tonnes. The price of one tonne of tree was stated to be Rs. 40 In cross examination, she has not only reiterated what she has stated in chief-examination but has gone one step further and stated that she would be getting 150 bags of paddy, but she claimed only 120 bags. Of course, she has stated that she could not state the number of trees cut by the defendants. P.W.2 has supported the evidence of P.W.1 by stating that the defendants have cut about 40 tonnes of trees with the help of about 200 persons. He has also stated that the price of paddy was Rs. 50 per bag. In cross-examination, he has stated that the defendants had claimed that they had purchased the trees and that he did not know for how much they sold the trees. No doubt, he admits that he was fined in a sum of Rs. 50 in a criminal case. That would not, however prevent the Court from accepting his evidence which corroborates the evidence of P.W.1, P.W.3 who is the sister of P.W.1, has also stated that the yield would have been 130 bags of paddy and that the price was Rs. 40 per bag. She has also stated that trees weighing 40 tonnes were cut and the price was Rs. 50 10 Rs. 55 per tonne. She repeats the same in cross-examination. D.W.1 who is the grandson of Kanniammal has supported the evidence of P.W.1. He has stated that Madhavan harvested the crops and took them away. He stated that palmyrah leaves worth Rs. 2,000 were cut by Madhavan. He has also given evidence that the price of paddy was Rs. 40 per bag. As against this evidence in support of the plaintiffs, there is nothing the contrary on the side of the defendants. At any rate, my attention has not been drawn to any contrary evidence let in by the defendants. I do not find any infirmity in the evidence of P.W.1 to 3 and D.W.1 so as to reject the same. Accepting the evidence given by them. I hold that the decree granted by the learned District Judge for damages is correct and cannot be interfered with.
14. The last contention urged by learned Counsel for the appellant relates to Ex. 16. It is seen that the order passed by the trial Court in the application to bring the legal representatives on record was challenged by way of revision on petitions in this Court in Madhavan v. Muniammal and Ors. 1976 : Cr.R.P.Nos. 3507 and 3508 of 1976. While confirming the order passed by the trial Court, Ismail, J., as he then was considered the evidence let in by the legal representatives to prove the genuineness of the will of Kanniammal. Learned Counsel for the appellant submits that the finding given in a proceeding to bring the legal representatives on record is not conclusive in the question whether they are the legal representatives or not and that such a finding is rendered only for the purpose of the proceeding in which they are brought on record. Learned Counsel invites me to make an observation to the effect that the finding given in C.R.P.Nos 3507 and 3508 of 1976 is not conclusive. I am unable to persuade myself to make any such observation. Whatever is the effect in law of the finding given by this Court in the above Civil revision petitions, such effect will be there in future proceeding that may be instituted by the parties. I do hope that the parties herein will not resort to Courts again litigating their title particularly in view of the fact that this litigation which started in 1965 has lasted nearly 22 years. I wonder whether the matter will be taken to the Supreme Court and kept alive for some more years. Suffice it to say that is not possible for this Court to make any observation as regards the effect of the finding given in the above civil revision petitions as desired by learned Counsel for the appellant.
15. As I have rejected all the contentions urged by learned Counsel for the appellant, the second appeals fail and they are dismissed with costs.
16. It is brought to my notice by learned Counsel for the respondents that a Receiver was appointed to manage the properties during the pendency of the suit in the trial Court and that in C.M.P.Nos. 11613 and 11619 of 1985, this Court directed the continuance of the Receiver during the pendency of the second appeals. Now that the second appeals are dismissed, the Receiver is directed to hand over possession to the respective plaintiffs. The accounts of the Receiver would be checked by the trial Court and appropriate orders will be passed. As regards the amount deposited by the Receiver in the trial Court, the parties are at liberty to apply to the trial Court for directions regarding payment out.