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T. Velu Servai Vs. Srinivasa Iyengar and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai High Court
Decided On
Reported in(1956)2MLJ60
AppellantT. Velu Servai
RespondentSrinivasa Iyengar and anr.
Cases ReferredIn Vithoba Bava v. Hariba Bava
Excerpt:
.....lease of 1885 to the said sundararajachar was effected under unavoidable necessity and in the best interests of the mutt itself and was therefore binding on it, and pleading in paragraph 8 that her husband, srinivasa ayyangar, purchased the site in her possession, on which the present house was built, from the said sundararajachar for rs. the suit ended in a compromise, exhibit a-4, and the decree, exhibit a-3, which provided that so far as the suit site was concerned defendant 21, that is lakshmi ammal, shall enjoy the property 'absolutely, with full powers of alienation by way of sale, mortgage or gift or otherwise without any manner of interference by plaintiff and his successor in title',but she was to pay into court rs. it was clearly on the foundation of the purchase made..........of rs. 20 per annum on 14th february, 1885. thereafter he sold the site to various persons, the suit site to one srinivasa ayyangar for a sum of rs. 88 under a registered sale-deed, dated 6th august, 1897. some time later, srinivasa ayyangar died issueless, leaving only his widow, lakshmi ammal. she is said to have put up the present house on the suit site and was in. enjoyment thereof till her death in 1937. treating this house as her absolute property, she executed a will, exhibit a-11, in favour of her sister, kothai ammal. the latter died in 1945, leaving an adopted son, sundararaja ayyangar, from, whom the plaintiff purchased the suit property under exhibit a-6, dated 7th march, 1948, for rs. 5,000. it will therefore be seen that the plaintiff claims title through srinivasa.....
Judgment:

Ramaswami Gounder, J.

1. The plaintiff, who is the present appellant, filed the suit to recover possession of a house-property in Madurai Town. The site on which the house is constructed together with adjacent sites, which formed a block of vacant site., originally belonged to Vyasarayamatam of Mysore. One Sundararajachar was the agent or Karwar under the Matathipathis from 1872 till his death in 1904. He was able to induce the then Matathipathi to grant him in perpetuity a lease of the said property at a nominial rent of Rs. 20 per annum on 14th February, 1885. Thereafter he sold the site to various persons, the suit site to one Srinivasa Ayyangar for a sum of Rs. 88 under a registered sale-deed, dated 6th August, 1897. Some time later, Srinivasa Ayyangar died issueless, leaving only his widow, Lakshmi Ammal. She is said to have put up the present house on the suit site and was in. enjoyment thereof till her death in 1937. Treating this house as her absolute property, she executed a will, Exhibit A-11, in favour of her sister, Kothai Ammal. The latter died in 1945, leaving an adopted son, Sundararaja Ayyangar, from, whom the plaintiff purchased the suit property under Exhibit A-6, dated 7th March, 1948, for Rs. 5,000. It will therefore be seen that the plaintiff claims title through Srinivasa Ayyangar's widow, Lakshmi Ammal. But he had three hurdles to get over : (1) that his vendor, Sundararaja Ayyangar, should be proved to be the adopted son of Kothai Ammal and her husband, Aravamuda Ayyangar, (2) that the will executed in favour of Kothai Ammal by her sister, Lakshmi Ammal, was genuine and was executed in a sound disposing state of mind, and (3) that Lakshmi Ammal had absolute power of disposition over the property. As regards points 1 and 2, the learned trial Judge found in plaintiff's favour, and they were not controverted in this appeal. The contention in the present appeal was confined only to the question whether the suit property belonged in absolute ownership to Srinivasa Ayyangar's widow, Lakshmi Ammal. It may be mentioned that Srinivasa Ayyangar died issueless some time after 1897, but leaving a brother, one Tirumalai Ayyangar. The latter died in 1939, leaving a son, who is the present first defendant, and his widow, the present second defendant. The third defendant had obtained a usufructuary mortgage of the suit house from Lakshmi Ammal under the document, Exhibit B-1, dated 1st October, 1933, but that mortgage is said to have been redeemed by defendants 1 and 2, and so, the third defendant claimed no further interest in the property. Thus, the contesting defendants 1 and 2 claimed title to the property as reversioners to the estate of Srinivasa Ayyangar after the death of his widow, Lakshmi Ammal. Therefore, the question is whether the suit house belonged to Srinivasa Ayyangar and whether Lakshmi Ammal had only a limited interest or whether it was her absolute property.

2. The origin of Srinivasa Ayyangar's title to the property was not very much in controversy. The site admittedly belonged to Vyasarayamatam. It is stated that the site was leased in perpetuity to the Matam's then Karwar, Sundararajachar, at a nominal rent of Rs. 20 per annum on 14th February, 1885. That document is not available. Then, it was alleged that the said Sundararajachar sold his interest in the site, namely, the lease-hold interest, to Srinivasa Ayyangar by a sale-deed, dated 6th August, 1897. That document too is not available. We are therefore left without any direct evidence as to Srinivasa Ayyangar's title. Indeed, one would have been compelled to hold against it but for the fact that Lakshmi Ammal, through whom the plaintiff claims title, had made certain admissions in her written statement, Exhibit A-2, in O.S. No. 112 of 1927. Thai was a suit filed by the then Matathipathi of the said Matam against the sons of Sundararajachar who was then dead and against his various alienees, of whom Lakshmi Ammal was one and was impleaded in that suit as defendant 21. It was alleged in the plaint in that suit, Exhibit A-1, that the said Sundararajachar was able to induce the then Matathipathi to grant in perpetuity a lease of the site at a nominal rent of Rs. 20 per annum on 14th February, 1885, but that the said lease was for no consideration binding on the Matam and was also beyond the powers of the Matathipathi. It was therefore prayed that the suit site and other sites should be put into the possession of the Matam free of the obstruction of the various alienees. It was further alleged in the plaint, that, though the alienees had put up structures thereon, their rights could not enure beyond the lifetime of the Matathipathi who granted the lease and that they were bound to return the property in its original condition after removing all the structures put up by them. To that suit, Lakshmi Ammal who was defendant 21 filed her written statement, Exhibit A-2, contending that the permanent lease of 1885 to the said Sundararajachar was effected under unavoidable necessity and in the best interests of the Mutt itself and was therefore binding on it, and pleading in paragraph 8 that her husband, Srinivasa Ayyangar, purchased the site in her possession, on which the present house was built, from the said Sundararajachar for Rs. 88 under a registered sale-deed, dated 6th August, 1897. There is therefore the admission of Lakshmi Ammal herself that the purchase of the suit site was made by her husband in 1897 from the said Sundararajachar. That purchase must have been only of the leasehold interest, because, Sundararajachar himself held only a lease-hold interest in perpetuity. It was further alleged by Lakshmi Ammal in the same paragraph of her written statement that her husband built a house thereon at a cost of Rs. 600, but that the house fell down twice on account of floods in the Vaigai river, and that thereafter, she built the present house at a cost of Rs. 500. She therefore prayed that in case the Court found that the Matam was entitled to recover possession of the site, it should not be granted such relief without payment of the above-mentioned sum of Rs. 1,100 being the cost of construction, together with Rs. 88 the sale price for the site. The suit ended in a compromise, 'Exhibit A-4, and the decree, Exhibit A-3, which provided that so far as the suit site was concerned defendant 21, that is Lakshmi Ammal, shall enjoy the property 'absolutely, with full powers of alienation by way of sale, mortgage or gift or otherwise without any manner of interference by plaintiff and his successor in title', but she was to pay into Court Rs. 290 per ground made up of Rs. 240 being the capitalised value for 20 years at a monthly rental of one rupee per ground and Rs. 50 premium within six months from the date of the decree in proportion to the area of the house-site. The capitalised value and the premium which she was liable to pay for the extent in her possession came to Rs. 181-4-0. The fact that subsequently she dealt with it as her absolute property is by itself enough to show that she must have deposited that amount and fulfilled her obligations under the compromise.

3. In these circumstances, learned Counsel for the plaintiff appellant contended that what was purchased by Srinivasa Ayyangar was only a lease-hold interest and that what Lakshmi Ammal got under the compromise was absolute title by reason of the fact that she paid out of her funds a sum of Rs. 181-4-9. The evidence of the second defendant herself shows that her husband, Tirumalai Ayyangar, and Srinivasa Ayyangar had no joint properties and that Srinivasa Ayyangar had no profession and led a hard life and did not live long and was sickly. It is therefore clear that except this property which could not have yielded any income as a large portion of it was in the occupation of Lakshmi Ammal herself, she got no other source of income from her husband. It is therefore possible that out of her own funds, she paid the said sum of Rs. 181-4-0 under the compromise decree. But the question is whether that alone is sufficient to show that the property was acquired by her absolutely with the said sum of Rs. 181-4-0. The admitted fact was that the site had been purchased by her husband from Sundararajachar. As we have not got the sale deed, it is difficult to say that what was in fact purchased by him was only the leasehold interest and not full title. It may be that the title was defective, and so, the suit was filed by the Matam to recover possession of the property. It was because of the sale in favour of Srinivasa Ayyangar, his widow, Lakshmi Ammal, was added as a defendant to that suit. She only represented her husband's estate in that suit. It was clearly on the foundation of the purchase made by her husband, whatever that purchase really meant, she was able to secure absolute title. The basic right on which the absolute ownership was acquired was that of the husband. If, therefore, the imperfect title of the husband was converted into full ownership by the efforts and funds of the widow, clearly, the benefit must belong to the estate and not to her. I therefore agree with the learned trial Judge that the acquisition of full ownership under the compromise decree enured only for the benefit of the estate, and that, in any case, the vacant site of the suit property must be held to belong to the estate, and, therefore, to the reversioners, defendants 1 and 2.

4. As regards the superstructure, the contention for the defendants is that the husband, Srinivasa Ayyangar, himself had put up the contruction. It is true that Lakshmi, in her written statement in the previous suit, admitted that her husband built a house on the site at a cost of Rs. 600; but she alleged that that house fell down on account of the floods in the Vaigai river and that thereafter she built the present house at a cost of Rs. 500. Her statement that her husband put up the construction at a cost of Rs. 600 but that the house was washed away in the floods must be taken together as one piece of admission. It cannot be dissected and the admission in regard to the construction by her husband alone taken, leaving aside the other part of the same admission, namely, that her husband's construction was washed away by the river. There is no acceptable evidence on the side of the defendants that the house constructed by Srinivasa Ayyangar continued to exist and that that is the present house. On that point, we have only the evidence of D.Ws. 1 and 2, of whom D.W. 1 is the second defendant herself. She is aged 60 years and is said to have been married into this family when she was 12. According to her, from the date of her marriage, the house was in the same condition and it was not true that it fell down or that it was reconstructed by Lakshmi Animal. Her evidence is thoroughly interested and not much weight-can be given to it. D.W. 2 is a neighbour but he came into that street only 15, or 16 years ago; and so, his evidence that during the last 40 years, he had not known that the suit house was destroyed or that Lakshmi Ammal rebuilt it does not carry much weight. That apart we have no idea as to when Lakshmi Ammal reconstructed the house. In any case, it was earlier than 1927. It may be that the house which D.Ws. 1 and 2 say they have always been seeing is the house constructed by Lakshmi Ammal and not by her husband. We must therefore take it that the house constructed by Srinivasa Ayyangar was washed away in the floods, so that the present house must have been the one constructed by Lakshmi Ammal. That is what she says in her written statement. It is difficult to find any reason why she should have made a false statement in her written statement. She could not get any extra compensation for the house of the husband which was washed away. She did not gain anything by stating that the house then in existence was constructed by her at a lesser cost than the one constructed by her husband. I therefore think that the proper inference to be drawn, in the circumstances, is that the present house was the one constructed by Lakshmi Ammal out of her funds. As stated above, her husband left no other property capable of yielding any income, from out of which she could be stated to have constructed this house.

5. But it was contended by the learned Counsel for the defendants that even so, if a widow spends her moneys and constructs a house on a site belonging to her husband, it must be construed as sufficient evidence of an intention to renounce her right to the superstructure and treat it as part of the husband's estate. In support of that contention, he relied on the decision reported in Rajah Venkatti Narasimha Appa Rao v. Rajah Sureneni Venkata Purushothama Jagannatha Gopala Rao : (1908)18MLJ409 , there is no doubt this observation:

Moreover, the buildings being, to large part, on land belonging to the estate, would go with the estate, apart from any intention of Chinnayya to treat them as part of the estate.

6. But, in that case, there was more than a mere construction of the house on the husband's estate, for, in the gift deed in favour of Chinnayya, it was stated that the vacant site and house shall vest in her along with the estate, that is, part and parcel of the estate. In fact, in Periakaruppan Chetty v. Arunachalam Chetty (1926) 52 M.L.J. 571 : I.L.R.Mad. 582, where a Hindu, who had no coparceners built a house worth about Rs. 40,000 with his self-acquisitions on an ancestral site worth a few rupees, and, several years later, adopted a son and lived with him in the house, it was held that the mere fact that the superstructure which was built out of self-acquired funds was raised on the ancestral site, did not render it joint family property. At page 587, Kumaraswami Sastri, J., observed thus:

I do not think that, by building with self-acquired funds on the ancestral site worth a few rupees a superstructure costing several thousands, the house became joint family property.

Reilly, J., put the matter thus at page 593.-

Mr. Varadachariyar contends that the mere building of the house on joint family land is such a physical mingling of it with the land that the characteristics of the land must attach to it. But the owning of a house by one man and of the land on which it stands by another is a matter of such ordinary occurrence that we cannot ignore it when trying to ascertain the intention of the builder in such a case. In Vithoba Bava v. Hariba Bava (1869) 6 Bom. H.C.R. 54, the principle that a member of a joint family building a house with his own funds on joint family land may retain the house as his separate property was recognised and was the basis of the decision. No case to the contrary has been quoted before us. The fact that a house, is built by one member of a joint family on joint family land cannot therefore be regarded as sufficient by itself to show that he intended to waive his right to the house as his. separate property if he built it with his separate funds.

It is therefore clear that mere construction of the house by a widow with her funds on a vacant site belonging to her husband's estate would not by itself apart from other circumstances, be sufficient to show that she intended to renounce her rights to the house and to treat it as part of her husband's estate. In this case, apart from mere Construction of the house, we have no other evidence or circumstances, from which any such intention could be gathered. On the other hand, in 1933, she executed a mortgage with possession in favour of the third defendant, describing the property as belonging to her. Then, in 1937, she executed a will in favour of her sister on the footing that it was her absolute property. It must also be remembered that what her husband could have purchased was only a leasehold interest for a small sum of Rs. 88. On that, she spent a comparatively large sum of Rs. 500 and put up this construction. It cannot therefore be stated that in those circumstances, the widow intended to give up her right to the superstructure for the benefit of her husband's estate.

7. The result is that the vacant site of the suit property would belong to the reversioners, defendants 1 and 2, and the superstructure to the plaintiff. The appeal is therefore allowed only to the extent of the superstructure of the suit property, and dismissed in other respects. The plaintiff will be at liberty to dismantle and remove the superstructure at his own cost within six months from this date, or, at his option to be exercised within the said period of six months, be entitled to recover the value thereof from defendants 1 and 2 on ascertainment by the trial Court on his application. In default of the plaintiff either removing the superstructure or exercising the option aforesaid within the said period, the defendants 1 and 2 will be at liberty to demolish it and recover the costs thereof from the plaintiff.

8. In the circumstances, the parties will bear their own costs in both the Courts.


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