2018 Supreme(Mad) 4415

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. KARTHIKEYAN, J.
Natarajan - Appellant
Versus
M. Ravi & Others - Respondents
Appeal Suit (MD) No. 47 of 2005
Decided On : 01-11-2018

Headnote:

Civil Procedure Code,1908- Section 96 - Hindu Succession Act, 1956 – Sections 14,14(1),14(2) - Challenge - Suit schedule property and for consequential relief of recovery of possession - Sale deed - Trichy measuring an extent of sq ft together building measuring an extent of sq ft This suit came up for consideration before Additional Subordinate Court Trichy and by judgment suit was decreed with costs - Challenging said judgment present first appeal had been filed - Even during pendency of suit second plaintiff had attained age of majority and was declared as major - Pending first appeal she died and her legal heirs were brought on record as respondents - Suit property in plot Ranganathar Cooperative Colony in Srirengam Trichy originally belonged - He had purchased plot and put up building from his self earnings - He was in exclusive possession and enjoyment as owner during his life time - He died - Executed a registered settlement deed in favour of his - It was provided in settlement deed that she can enjoy property during her life time and after that it was to be taken by his grandchildren born through his daughter Yamuna - Plaintiffs are grandchildren and claimed that Yamuna had no right in property - It was averred in plaint that from date of settlement deed was in possession of property - After death of one Kaliamoorthy claimed right through an othi and claimed it had been executed by and her daughter minor Yamuna in his favour - Had been filed in Subordinate Court Trichy by maternal uncle of Yamuna by name seeking a declaration that othi was a fraudulent document - After trial Court that alleged othi was not a valid document and was not binding on estate - Continued to be in possession of property - Whether plaintiffs are entitled for relief of declaration of title and recovery of possession? Whether plaintiffs are entitled to past and future mense profits? Whether power of attorney and sale deed are true and genuine documents? Whether release deed is a true and genuine document and whether it is valid? To what other relief’s are plaintiff is entitled to? Whether suit is pre-mature and whether plaintiffs have a right to seek possession? Whether life interest granted to under settlement deed had enlarged into absolute title under Section 14(1) of Hindu Succession Act? Whether Yamuna obtained a life interest under and whether such interest enlarged into absolute title? Whether suit is maintainable since Yamuna was alive on date of suit? Whether Yamuna had obtained right to execute power of attorney deed and whether sale deed executed by agent under are valid and enforceable document transferring legal right to vendee? Whether release deed under is a validly executed document or whether document is null and void? Whether suit is maintainable without seeking a relief to set aside release deed under? Whether plaintiffs are entitled for a declaration of title and consequential recovery of possession over suit property? Whether plaintiffs are entitled to past and future mesne profits? Whether judgment under appeal requires interference? - Whether acquired before or after commencement of this Act shall be by her as full owner thereof and not as a limited owner - Held, Property of a female Hindu to be her absolute property - Any property possessed by a female Hindu whether acquired before or after commencement of this Act shall be 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 by her as stridhana immediately before commencement of this Act - 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 of a civil court or under an award where terms of gift will or other instrument or decree order or award prescribe a restricted estate in such property - 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 by her as stridharas immediately before commencement of this Act - 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 terms of gift will or other instrument or decree order or award prescribe a restricted estate in such property - It is clear that ambit of Section 14(2) of Act must be confined to cases where property is acquired by a female Hindu for first time as a grant without any pre-existing right under a gift will instrument decree order or award terms of which prescribe a restricted estate in 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 scope and ambit of Section 14(2) of Act even if instrument decree order or award allotting property prescribes a restricted estate in property - In additional written statement a stand had been taken by defendant that since Yamuna was alive and since suit property will devolve to plaintiffs only on her death suit is pre-mature and not maintainable - Court disagree with this contention - Yamuna did not have any interest which would flower into absolute interest over property - She did not have any independent right over property - After death of property would automatically devolve to children of Yamuna - During life time of property would enlarge into full interest in so far as she alone was concerned - When she dies as a life interest holder succession as set out in has to follow and children of Yamuna namely plaintiffs get absolute title irrespective of fact whether Yamuna was alive or dead - Consequently Court hold that suit is maintainable and is not pre-mature even though Yamuna was alive on date of institution of suit - Trial Court that since issue was agreed to be left open parties are governed by registered settlement deed by deceased admitted owner - Trial Court that on a proper reading of settlement deed right of enjoyment for life has been given to plaintiff in respect of suit house as per settlement deed - Trial Court therefore that plaintiff is entitled to life estate in respect of suit house and is entitled solely to recover rent from defendants and that plaintiff is entitled to costs - So suit was decreed as prayed for with costs - At time of hearing of appeal Counsel for defendant / appellant wanted a finding on question whether registered general power of attorney alleged to have been executed by defendant in favour of defendant is forgery or not - But it is represented by counsel for plaintiff that defendant has filed in this court and it is pending trial on very same question - So when issue is left open in trial defendant is not entitled to ask for a finding regarding in this appeal - Such a finding cannot be given when parties had agreed at time of trial to leave issue open - When a document is valid no question arises of its cancellation - When a document is void ab initio a decree for setting aside same would not be necessary as same is non-est in eye of law as it would be a nullity - Court hold that release deed being a fraudulent document cannot be upheld by this Court - It is a void document - Its basis is not free consent - Basis is an agreement entered to defeat rights of plaintiffs and to grab property -Consequently Court hold that doubt being void ab initio need not be set aside neither should there be a prayer to set aside document - It is a non-est document in law - It is void - It is a null document - It does not give any right to release - Point is answered accordingly - Appeal Dismissed