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IN THE HIGH COURT OF MADRAS
P. Rajamanickam, J.
Manickam and Ors. - Appellant
Versus
R.G. Ramasamy and Ors. - Respondent
Second Appeal No. 1776 of 2001
Decided On : 19-05-2020
Hindu Succession Act, 1956 – Section 14(2) - Sub-section (1),(2) – Civil Procedure Code,1908 - Order XX Rule 12 - Suit properties and other properties originally belonged to sale deed said is paternal uncle of plaintiffs - Said, in respect of aforesaid properties, had executed a registered settlement deed in favour of his wife by giving life interest and after her death properties shall devolve on plaintiffs and one who is brother of plaintiffs 2 -Plaintiffs properties as per settlement deed and died on -Thereafter, plaintiffs took possession of properties mentioned in said settlement deed, except suit property - Said had sold suit property on to first defendant - After death of first defendant had no right to enjoy said property - Plaintiffs were constrained to file above suit for declaration of their title and for recovery of possession and also for mesne profits - As first defendant entered into a sale agreement with second defendant in respect of 50 cents of suit properties, second defendant has also been added as a party to suit - Whether it be a limited or a pre-existing right to maintenance in lieu of which she was put in possession of property - Ratio cannot be applied ignoring requirement of female Hindu having to be in possession of property either directly or constructively as on of Act, though she may acquire a right to it even after Act - Whether acquired before or after commencement of Act, shall be held by her as full owner thereof and not as a limited owner – Held, that it is hereby declared that plaintiffs are absolute owners of suit properties - Court at time of admitting Second Appeal, has formulated following substantial questions of law - learned Subordinate Judge right in holding that Ex. A-1 settlement deed is only a Will after having given a finding that possession was given pursuant to settlement deed in favour of - learned Subordinate Judge right in holding that defendants have prescribed title by adverse possession when succession opened in favour of plaintiffs only on and suit is filed within 12 years - learned Senior counsel for first respondent-first defendant, in support of his contentions, relied upon following decisions Court held that life estate given to her under will cannot become an absolute estate under the provisions of Act - can only be on premise that widow had no pre-existing right in the self-acquired property of her husband - Judgments and decrees passed by Courts below are set aside suit is decreed as follows - that it is hereby declared that plaintiffs are absolute owners of suit properties - first defendant is directed to deliver vacant possession of suit properties to plaintiffs within three months from date of receipt of a copy of judgment - Appeal is allowed.
JUDGMENT :
P. Rajamanickam, J.
1. This Second Appeal has been filed by the plaintiffs against the judgment and decree passed by the Sub-Judge, Thirupattur, Vellore District in A.S. No. 10 of 1996, dated 03.02.1997 confirming the Judgment and decree passed by the District Munsif, Thirupattur, Vellore District in O.S. No. 1167 of 1985, dated 23.02.1996.
2. The appellant herein had filed a suit in O.S. No. 1167 of 1985 on the file of the District Munsif, Thirupattur, Vellore District for declaration of title and for recovery of possession of the suit properties and for mesne profits of Rs. 6,000/-.
3. The learned District Munsif, Thirupattur by the Judgment dated 23.02.1996 had dismissed the suit without costs. Aggrieved by the same, the plaintiffs had filed an appeal in A.S. No. 10 of 1996 on the file of the Sub-Judge, Thirupattur, Vellore District. The learned Sub-Judge, by the judgment dated 03.02.1997 had dismissed the said appeal with costs and thereby confirmed the Judgment and decree passed by the Trial Court.
4. Feeling aggrieved, the plaintiffs have filed the present Second Appeal.
5. For the sake of convenience, the parties are referred to as described before the Trial Court.
6. The averments made in the plaint are, in brief, as follows:-
The suit properties and other properties originally belonged to one J. Munisamy, by virtue of the sale deed dated 22.03.1930. The said J. Munisamy is the paternal uncle of the plaintiffs. The said Munisamy, in respect of the aforesaid properties, had executed a registered settlement deed dated 30.07.1962 in favour of his wife Mangaiammal by giving life interest and after her death the properties shall devolve on the plaintiffs and one Sampangi, who is the brother of the plaintiffs 1 & 2 and they have to enjoy the said properties as absolute owners. Subsequently, in the year 1964, the said Sampangi died as bachelor and his parents also died and hence the plaintiffs 1 & 2 are the only legal heirs of the said Sampangi. Mangaiammal had enjoyed the properties as per the settlement deed and died on 14.08.1981. Thereafter, the plaintiffs took possession of the properties mentioned in the said settlement deed, except the suit property. The said Managaimmal had. sold the suit property on 01.06.1968 to the first defendant. After the death of Mangaiammal, the first defendant had no right to enjoy the said property and hence the plaintiffs had issued a lawyer's notice dated 05.11.1984 calling upon the first defendant to hand over the possession of the suit property. Though the first defendant had received the said notice, he did not send any reply, hence, the plaintiffs were constrained to file the above suit for declaration of their title and for recovery of possession and also for mesne profits. As the first defendant entered into a sale agreement dated 11.02.1985 with the second defendant in respect of 50 cents of suit properties, the second defendant has also been added as a party to the suit.
7. The averments made in the written statement filed by the first defendant are in. brief as follows:-
It is true that by virtue of the sale deed dated 22.03.1930, the suit property originally belonged to J. Munisamy. It is false to allege that the said Munisamy had executed a settlement deed dated 30.07.1962 in favour of Mangaiammal by giving life interest and after her death, the property shall devolve on the plaintiffs and one Sampangi. To the knowledge of the first defendant, no such settlement deed was executed by the said J. Munisamy. The said Munisamy had bequeathed his properties under a registered Will dated 25.09.1967 in favour of his wife - Mangaiammal and others. As per the said Will, the said Mangaiammal. got the suit property. The said J. Munisamy died on 12.10.1967 and after the death of the said Munisamy, the Will came into force and Mangaiammal took possession of the suit property as an absolute owner and sold the same to the first defendant under a registered Sale Deed dated 01.06.1968 for valid
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