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Srimathi Kamalambal Vs. Srinivasa Odayar (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1968)2MLJ487
AppellantSrimathi Kamalambal
RespondentSrinivasa Odayar (Died) and ors.
Cases ReferredRamakotayya v. Viraraghavayya
Excerpt:
.....suit of the plaintiff has to fail and it is-really unnecessary to go into the next question whether by virtue of section 14 (1) of the hindu succession act, 1956, kamalathammal had acquired an absolute title to the property. however, since the learned counsel on both sides argued this point, i would like to record my conclusion in this behalf as well......and her daughter kamalathammal jointly executed a settlement deed in respect of the suit property in favour of kamalambal, the sister's daughter of soundarathammal. soundarathammal herself died in 1957 and kamalathammal died later. the first respondent herein instituted o.s. no. 367 of 1960 on the file of the court of the district munsif of valangiman at kumbakonam for recovery of possession of the suit property with future profits. before the suit, kamalambal had alienated the property to rathanavelu odayar and one ratnaswamy odayar was in possession of the property as lessee under rathanavelu odayar. therefore, in the suit he impleaded kamalambal as the first defendant, rathanavelu odayar as the 2nd defendant and ratnaswamy odayar as the 3rd defendant. the case of the.....
Judgment:

M.M. Ismail, J.

1. One Kumaraswamy Odayar died in about 1930 unmarried survived by his mother Soundarathammal and his sister Kamalathammal. On the death of Kumaraswamy Odayar, Soundarathammal succeeded to the property as his mother. On 25th November. 1955 Soundarathammal and her daughter Kamalathammal jointly executed a settlement deed in respect of the suit property in favour of Kamalambal, the sister's daughter of Soundarathammal. Soundarathammal herself died in 1957 and Kamalathammal died later. The first respondent herein instituted O.S. No. 367 of 1960 on the file of the Court of the District Munsif of Valangiman at Kumbakonam for recovery of possession of the suit property with future profits. Before the suit, Kamalambal had alienated the property to Rathanavelu Odayar and one Ratnaswamy Odayar was in possession of the property as lessee under Rathanavelu Odayar. Therefore, in the suit he impleaded Kamalambal as the first defendant, Rathanavelu Odayar as the 2nd defendant and Ratnaswamy Odayar as the 3rd defendant. The case of the plaintiff was that his grandfather and Kumaraswamy's grandfather were brothers and therefore he was the nearest male reversioner after the death of Kamalathammal to the suit property. According to the plaintiff, the common ancestor was one Pethaperumal Odayar and he had two sons, Arunachala Odayar and Muthuswami Odayar. Arunachala Odayar had four sons, Periasami, Uthandi, Sellaperumal and Ramaswami, who are no more. The plaintiff claimed to be the son of Sellaperumal who died about 45 years ago. Muthuswami Odayar, the brother of Arunachala Odayar, had a son Chinnayya Odayar whose wife was Soundarathammal. Thus, according to the case of the plaintiff, Kumarasamy Odayar was the last male holder and he is the nearest reversioner to him. The defendants put forward principally two contentions, that the plaintiff was not the nearest reversioner at all and secondly, in any event, by virtue of the provisions contained in Section 14 (1) of the Hindu Succession Act, 1956, Kamalathammal became the absolute owner of the property and therefore the settlement effected by Kamalathammal and Soundarathammal in favour of Kamalambal was a valid one. In support of the case of the plaintiff, in addition to examining himself as P.W. 1, he examined an old man aged 85, living in the next street, as P.W. 2 and one purohit as P.W. 3. The admitted case of the parties is that there was no documentary evidence to establish the case of the plaintiff that his grandfather and Kumaraswamy Odayar's grandfather were Arunachala Odayar and Muthuswami Odayar, the sons of Pethaperumal Odayar. The plaintiff sought to establish his case only on the strength of his own evidence and the evidence of P.Ws. 2 and 3. The learned District Munsif, by his-judgment and decree dated 7th August, 1961, dismissed the suit. He accepted the contention of the defendants with regard to the effect of Section 14 of the Hindu Succession Act and held that since Kamalathammal became the absolute owner of the property, there was no question of any reversioner subsequent to that stage. With regard to the claim of the plaintiff that his grandfather and Kumaraswamy Odayar's grandfather were brothers, after discussing the evidence of P.Ws. 1, 2 and 3, he came to the conclusion that the case of the plaintiff was not established. As against this judgment and decree, the plaintiff preferred A.S. No. 115 of 1961 on the file of the Court of the Subordinate Judge of Kumbakonam. The learned Subordinate Judge by his judgment and decree dated 29th June, 1962, reversed the conclusion of the learned District Munsif and decreed the suit of the plaintiff. He came to the conclusion that the plaintiff had established that he was the nearest reversioner. He also came to the conclusion that Section 14 (1) (b) of the Hindu Succession Act, 1956, did not have the effect of enlarging any absolute estate in favour of Kamalathammal. It is against this judgment and decree the first defendant in the suit has preferred the present second appeal.

2. The principal contention of Mr. A. Sundaram Iyer, the learned Counsel for the appellant, is that the finding of the learned Subordinate Judge that the plaintiff had established his claim that he was the nearest reversioner to Kumaraswarm Odayar was based on inadmissible evidence and consequently that finding cannot stand. As I pointed out already, the evidence consisted of the oral evidence of P.W. I, namely, the plaintiff himself and two other persons P.Ws. 2 and 3. Both the Courts proceeded on the basis that the plaintiff being aged only 45, could not. Have had any personal knowledge of the ancestors. Therefore his evidence could not be accepted. As far as P.Ws. 2 and 3 are concerned, the learned District Munsif pointed out the confusion and the contradiction in the evidence of P.W. 2 and the excessive interest and zeal evidenced by P.W. 3 and held that their evidence could not be accepted. Naturally the evidence of P.W. 1 it self, being the evidence of interested person, could not have furnished the basis for a conclusion in his favour. The learned Subordinate Judge also referred to the evidence of P.W. 2 and finally wound up by saying 'So even on the basis of the evidence of P.Ws. 1 and 2, I am satisfied that the plaintiff has established the relationship he has shown in the pedigree appended to the plaint and has proved that he is the nearest reversioner entitled to the estate of the deceased Kumaraswami'. The learned Subordinate Judge was of the view that the statement of the plaintiff that his mother gave the names in the pedigree and the relationship of the persons shown in the pedigree has to be accepted in evidence under Section 32 (5) of the Evidence Act. In my opinion, the learned Subordinate Judge fell into an error in this behalf. All that Section 32 (5) of the Evidence Act states is that when the statement of deceased person relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption, the person making the statement had special means of knowledge, and. when the statement was made before the question in dispute was raised, such statement would be a relevant fact. Here, P.W. 1 in his evidence had stated that his mother Gnanambal gave him the names in the pedigree and relationship for performing the ceremony. If it was proved independently of the evidence of P.W. 1 that the mother of the plaintiff had made such a statement in respect of the relationship, that statement may come within the scope of Section 32 (5) of the Evidence Act, but not the evidence of P.W. 1 as such. Consequently, P.W.1's evidence being purely hearsay cannot constitute legal evidence. As far as P.W. 2 is concerned, all that he says in. the evidence is:

It used to be said that the father of Arunachala and Muthuswami is Pethaperumal.

This is the only piece of evidence in the deposition of P.W. 2 so as to connect Arunachala said to be the grandfather of the plaintiff, with Muthuswami, the grandfather of Kumaraswamy, as brothers. The statement given in the passive voice without indicating who told the witness about the relationship and as to when it was said to him,, will not be admissible in evidence. This will constitute only a hearsay. Therefore,, the evidence of P.W. 1 and P.W. 2 in this behalf is not admissible. If so, the conclusion of the learned Subordinate judge based on the evidence of P.Ws. 1 and 2, that the plaintiff had established his case that he is the nearest reversioner of Kumaraswamy Odayar, cannot be sustained.

3. In view of this conclusion it follows that the suit of the plaintiff has to fail and it is-really unnecessary to go into the next question whether by virtue of Section 14 (1) of the Hindu Succession Act, 1956, Kamalathammal had acquired an absolute title to the property. However, since the learned Counsel on both sides argued this point, I would like to record my conclusion in this behalf as well. I have already mentioned the fact that in the settlement deed dated 25th November, 1955 Kamalathammal also joined Soundarathammal in execution. It must be remembered that after the death of Soundarathammal, Kamalathammal would be the next heir to succeed to the property of Kumaraswamy Odayar as his sister. Consequently, on the date when the settlement deed was executed, Kamalathammal had a right of expectation in respect of the property of Kumaraswamy. What exactly is the legal effect of Kamalathammal's joining in the execution of the settlement deed in favour of Kamalambal is to be gathered from the principle of law contained in paragraph 191 of the Mulla's Hindu Law, Thirteenth Edn. That paragraph states:

A reversioner, whether a male or female, who consents to an alienation by a widow or other limited heir made without legal necessity, or to an invalid surrender, and transferees from him, are precluded from disputing the Validity of the alienation, though he may have received no consideration for his consent. It is immaterial that the alienation is by way of gift.

4. Therefore, in so far as Kamalathammal joined the execution of the settlement in favour of Kamalambal, she was precluded from disputing the validity of the alienation and putting forward the contention that the settlement would enure only for the life of Soundarathammal and on her death she would get the property. I may point out here that the settlement deed was executed in 1955 before the Hindu Succession Act came into force. Therefore, on the date when the Hindu Succession Act came into force, Soundarathammal had already alienated the property and Kamalathammal who had not yet become entitled to the property had joined the alienation already effected. With the result, on that date she had neither possession nor title to the property. All that she could be said to have had if she had not joined in the execution of that deed, was a right to file a suit and recover possession of the property on the death of Soundarathammal. The legal position is that she has lost that right by joining in the execution of the deed of settlement. If that be the case, Section 14 of the Hindu Succession Act did not have any effect on the settlement executed in favour of Kamalambal. The legal position stated above is really based on a Full Bench decision of this Court in Ramakottayyav. Viraraghavayya1, Mr. K. S. Naidu, appearing for the 2nd defendant, the alienee, sought to contend that the proposition of law as laid down in Mulla's Hindu Law and in the decision m Ramakotayya v. Viraraghavayya : (1929)56MLJ755 has no application where it is a female heir who joined the execution and not a male reversioner. Mr. Naidu however was not able to produce any direct authority in support of his contention. But, in my opinion, this contention has no substance either on principle or on logic. If a male reversioner who would have acquired an absolute title to the property can be precluded from impugning the validity of an alienation because of his consent, the case must be a fortiori in relation to a female heir who would have had only a limited estate once the reversion opened. Therefore, I am unable to accept the contention of the learned Counsel. Under these circumstances the second appeal is allowed and the judgment and decree of the learned Subordinate Judge is set aside and the judgment of the learned District Munsif is restored. There will be no order as to costs in this appeal. No leave.


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