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2019 Supreme(Mad) 1466
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
R. HEMALATHA, J.
Nagaiyasamy - Appellant
Versus
Thangam and Ors. - Respondents
S.A. (MD) No. 1082 of 2007 and C.M.P. (MD) No. 2551 of 2018
Decided On : 04-03-2019
Advocate Appeared:
For the Appellant :V. Meenakshisundaram, Advocate
For the Respondents:V. Maharajan, Advocate
Headnote:
Transfer Property Act,1882 - Section 54 - Hindu Succession Act,1956 - Section 26 - Suit for mortgage property - Oral Sale and possession - Sale of immovable property - Contract Sale - Suit property originally belonged to Plaintiffs father who died intestate and Plaintiff became entitled to Suit property - He has also been paying tax for Suit property - First Defendant was a Tenant in Suit property in Ground Floor portion on a Monthly Rental basis - Tenancy was oral - Though Plaintiff requested First Defendant to vacate Suit premises First Defendant did not vacate same but promised to pay per mensem - Since First Defendant did not keep up his promise Plaintiff issued a Notice to him and First Defendant in spite of receipt of said Notice did not come forward to pay arrears of Rent or vacate Suit premises - Therefore Plaintiff issued another Legal Notice demanding First Defendant to pay arrears of Rent and also to vacate Suit premises - First Defendant received said Notice and sent a Reply which according to Plaintiff contained false allegations - In Reply Notice First Defendant denied relationship of Landlord Tenant between Plaintiff and First Defendant and in fact set up a title in favour of Second Defendant - Specific contention of Defendants is that Second Defendant purchased Suit property from Plaintiffs father in year - Whether Courts below have committed an error in holding that Appellant is not entitled to succeed to his father who was a Hindu on account of conversion of Appellant to Christianity? - Whether Courts below have committed an error in non-suiting Appellant/Plaintiff for simple reason that he has not chosen to examine himself as a Witness and was content with examination of his Power Agent? - Held, Transfer in case of an immovable property when value of which is and upwards it can be made only by registered instruments and in instant case admittedly value of Suit property is more than - Therefore alleged Oral Sale claimed by Defendants cannot be accepted especially when there is no evidence to substantiate sale - Section 26 of Hindu Succession Act children bom to converted Christian or his descendants alone would be disqualified from inheriting property and not converter himself - In any event since Defendants have not proved that they got Suit property by way of an Oral Sale their possession in Suit property at most can be construed only as a Tenant/Mortgagee and therefore they cannot be heard to say that since Plaintiff converted as a Christian he cannot inherit property of his father - Legal Heirs have not questioned Plaintiffs inheritance to Suit property and Defendants who are only Tenants in Suit property cannot raise such a plea against Plaintiff - Both Courts below have completely committed an error in dismissing Suit filed by Plaintiff and observations of both Courts below are perverse - Therefore an interference is called for in instant Appeal - Appeal Allowed
JUDGMENT :
R. Hemalatha, J.
1. The unsuccessful Plaintiff before both the Courts below has filed the present Appeal.
2. For the sake of convenience, the parties are referred to as per the ranking in the Trial Court and at appropriate places their ranking in the Second Appeal will also be indicated if necessary.
3. The brief facts of the Appellant/Plaintiff is as follows:
3(i). The Suit property originally belonged to the Plaintiff's father, who died intestate on 19.10.1996 and the Plaintiff became entitled to the Suit property. He has also been paying tax for the Suit property. The First Defendant was a Tenant in the Suit property in the Ground Floor portion on a Monthly Rental basis. The tenancy was oral. Though the Plaintiff requested the First Defendant to vacate the Suit premises, the First Defendant did not vacate the same, but promised to pay Rs. 200 per mensem. Since the First Defendant did not keep up his promise, the Plaintiff issued a Notice to him and the First Defendant, in spite of receipt of the said Notice, did not come forward to the pay arrears of Rent or vacate the Suit premises. Therefore, the Plaintiff issued another Legal Notice dated 6.3.1998, (a copy of receipt is marked as Ex. A10), demanding the First Defendant to pay arrears of Rent and also to vacate the Suit premises. The First Defendant received the said Notice and sent a Reply dated 23.3.1998 (Ex. A11), which according to the Plaintiff contained false allegations. In the Reply Notice, the First Defendant denied the relationship of Landlord Tenant between the Plaintiff and the First Defendant and in fact set up a title in favour of the Second Defendant. The specific contention of the Defendants is that the Second Defendant purchased the Suit property from the Plaintiff's father in the year 1993.
4. Therefore, the Plaintiff filed a Suit for declaration of his title to the Suit property and also directing the Defendants to vacate and hand over the Suit property to the Plaintiff and for Costs.
5. The Suit was resisted by the Defendants on the following grounds:
(a) The Suit property though originally belonged to the father of the Plaintiff, the Defendants were in possession of the Suit property as a Mortgagee (Usufructuary Mortgage)
(b) On 16.11.1993, the father of the Plaintiff alienated the Suit property in favour of the Second Defendant through an Oral Sale and possession was also handed over to the Defendants.
(c) Since the Plaintiff converted himself to Christianity, he is not entitled to claim any right over the Suit property.
6. The learned District Munsif, Tirumangalam after framing necessary issues dismissed the Suit filed by the Plaintiff.
7. Aggrieved over the Decree and Judgment passed by the learned District Munsif, Thirumangalam, the Plaintiff filed an Appeal in A.S. No. 180 of 2016, before the learned I Additional Subordinate Judge, Madurai.
8. After analysing the oral and documentary evidence adduced on both sides, the learned I Additional Subordinate Judge, Madurai, dismissed the Appeal filed by the Plaintiff.
9. Aggrieved over the same, the Appellant filed the present Appeal on the following Substantial Questions of Law:
“(1) Whether the Courts below have committed an error in holding that the Appellant is not entitled to succeed to his father who was a Hindu, on account of the conversion of the Appellant to Christianity?
(2) Whether the Courts below have committed an error in non-suiting the Appellant/Plaintiff for the simple reason that he has not chosen to examine himself as a Witness and was content with the examination of his Power Agent?”
10. Mr. V. Meenakshisundaram, learned Counsel appearing for the Appellant/Plaintiff would contend that merely because the Power of Attorney-holder of the Plaintiff deposed before the Trial Court as PW 1, the case of the Appellant/Plaintiff cannot be thrown out and that when the Defendants contend that the Suit property was alienated through an Oral Sale by the Plaintiff's father, the burden of proof is only on
