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Varadappa Naicker Vs. Appavu Alias Ramaswami Gounder - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1973)1MLJ346
AppellantVaradappa Naicker
RespondentAppavu Alias Ramaswami Gounder
Cases ReferredFateh Bibi v. Charan Das
Excerpt:
- .....j.1. the defendant is the appellant. the suit is for redemption, declaration and possession of the suit properties with past and future mesne profits. the plaintiff's case is as follows : the suit properties, among others, belonged to one r. sengoda gounder, who died on 30th september, 1932, leaving behind him his only minor son nattarayan and his junior wife pappayee alias priya kaliammal. the said nattarayan is the son of the said junior wife. sengoda gounder and his minor son usufructuarily mortgaged items 1 and 2 of the plaint schedule for rs. 700 and rs. 600 respectively on 21st september, 1932 (exhibits a-1 and a-2). after the death of sengoda gounder, his minor son also died on 16th may, 1934. thereafter, pappayee became entitled to the properties. the plaintiff was the only.....
Judgment:

V.V. Raghavan, J.

1. The defendant is the appellant. The suit is for redemption, declaration and possession of the suit properties with past and future mesne profits. The plaintiff's case is as follows : The suit properties, among others, belonged to one R. Sengoda Gounder, who died on 30th September, 1932, leaving behind him his only minor son Nattarayan and his junior wife Pappayee alias Priya Kaliammal. The said Nattarayan is the son of the said junior wife. Sengoda Gounder and his minor son usufructuarily mortgaged items 1 and 2 of the plaint schedule for Rs. 700 and Rs. 600 respectively on 21st September, 1932 (Exhibits A-1 and A-2). After the death of Sengoda Gounder, his minor son also died on 16th May, 1934. Thereafter, Pappayee became entitled to the properties. The plaintiff was the only nearest reversioner to the estate of the deceased minor Nattarayan. On 7th November, 1944 Pappayee sold items 3 and 4 of the plaint schedule to the defendant under two sale deeds (Exhibits A-3 and A-4). The plaintiff as reversion filed O.S. No. 49 of 1945, Subordinate Judge's Court, Coimbatore, for a declaration that the said sale deeds are not valid beyond the lifetime of Pappayee, and that they are not binding on him. He obtained a decree declaring that the sale deeds are not valid beyond the lifetime of Pappayee. The said decree was confirmed by the High Court in A.S. No. 512 of 1946. Pappayee died on 23rd September, 1965. The present suit is filed by the plaintiff, claiming to be the nearest reversioner of the estate of late minor Nattarayan. Subsequently to the filing of the suit, the plaintiff on 24th November, 1967, strengthened his title by obtaining a settlement deed from Pavayee, the senior wife of Sengoda Gounder. The usufructuary mortgagee under Exhibits A-1 and A-2 assigned his mortgage rights on 16th May, 1941 to one Venkttammal and the said assignee in her turn assigned the mortgage to the defendant on 10th February, 1943 and the defendant is in possession and enjoyment of the properties. The present suit for redemption, declaration of title and possession is filed. The case of the plaintiff is that under the provisions of Madras Act IV of 1938, the two mortgages are liable to be scaled down and the entire principal having been wiped out after the expiry of 30 years, the plaintiff is entitled to ask for the relief of declaration and possession of items 1 to 3 of the plaint schedule by virtue of the decree in O.S. No. 49 of 1945 and that on and from the date of death of Pappayee, the defendant is in wrongful possession of the properties. The plaintiff had filed the present suit claiming the reliefs mentioned above.

2. The defence to the suit is that the plaintiff has no right to sue as Section 8 of the Hindu Succession Act, 1956, will apply even when a male to whom succession is traceable dies before the Act and that Pavayee, the senior wife of Sengoda Gounder, takes Precedence over the plaintiff in the matter of succession. The further contention put forward is that the estate of Pappayee, which she inherited as a mother's estate, became enlarged under Section 14 of the Hindu Succession Act into an absolute estate and consequently the plaintiff is not entitled to maintain the suit. The defendant raised a further contention that the suit as framed is not maintainable in view of the settlement deed executed by Pavayee, that he had effected, improvements on the properties and without payment of the mortgage amount and the cost of improvements effected, the suit for redemption is not maintainable.

3. The trial Court held that the plaintiff is entitled to the suit properties, that he is entitled to redeem the mortgages Exhibits A-1 and A-2 without payment of the mortgage amount, that the defendant is not entitled to the cost of improvements and that the suit is not barred by time and the plaintiff is entitled to past profits as claimed by him.

4. The defend ant filed A.S. No. 203 of 1969 before the Subordinate Judge, Erode. The learned Judge confirmed the decision of the trial Court and dismissed the appeal. The defendant has filed the above second appeal.

5. R. Sengoda Gounder was the original owner of the suit properties. At the time of his death, he had two wives, viz. Pavayee and Pappayee, and Nattaraya Gounder was the son by Pappayee. Shortly before his death, Sengoda Gounder and his minor son Nattaraya Gounder executed two usufructuary mortgages dated 21st September, 1932, in favour of the defendant over items 1 and 2. The said mortgage deeds are Exhibits A-1 and A-2. On 16th May, 1934, Nattaraya Gounder died. The result is that on the death of Nattaraya Gounder who was the last male holder on 16th May, 1934, Pappayee inherited, the properties as his mother. Subsequent thereto, on 7th November, 1944, she sold the suit properties to the defendant under two sale deeds Exhibits A-3, and A-4. The plaintiff, claiming to be the nearest : reversion, filed a declaratory suit questioning the alienations made under Exhibits A-3 and A-4 and obtained a decree to the effect that the said alienations are not valid beyond the lifetime of Pappayee. Pappayee died on 23rd August, 1965 and long before her death, on 7th November, 1944 she had sold the suit properties to the defendant. Act XXX of 1956 came into force on 17th June, 1956. The contention of the learned Counsel for the appellant is that the plaintiff has no right to sue as Section 8 of the Act will apply even when the last male holder dies prior to the Act, and that Pavayee, being the stepmother of the minor Nattaraya (the last male owner) would be the nearer heir. The question that arises is whether Section 8 of the Hindu Succession Act, 1956, is applicable when a male Hindu dies intestate before the commencement of the Act.

6. The Supreme Court in Eramma v. Veerupanna and Ors. : [1966]2SCR626 , held that Section 8 is not retrospective in operation and where a male Hindu died before the Act came into force, Section 8 will have no application. Again, the Supreme Court in Fateh Bibi v. Charon Dass : [1970]3SCR953 , in dealing with the Hindu Law of Inheritance (Amendment) Act of 1929 held that the Act would be applicable even when a Hindu male dies intestate before 21st February, 1929, but is succeeded by a female heir who dies after coming into force of the Inheritance Act of 1929. The said principle was applied by Ramanujam, J., in Shanmugha Sundarathammal v. Narayana Konar and Ors. (1972) 85 L.W. 678, to a case of the death of the last male holder before the Hindu Succession Act, 1956, but his widow who succeeded to the estate dying after the coming into force of the Hindu Succession Act. It is seen that the decision of the Supreme Court in Eramma v. Veerupana : [1966]2SCR626 , is directly in. point; but Ramanujam, J., has applied in Shinmuga Sundarathammal v. Narayana Konar (1972) 85 L.W. 678, the principle of the decision of the Supreme Court in Fateh Bibi v. Charan Das : [1970]3SCR953 , to a case under Section 8 of the Succession Act. If Section 8 of the Hindu Succession Act applies to the present case, the first wife Pavayee would exclude the plaintiff and by rear on of Exhibit B-i, the rights of Pavayee have passed to the plaintiff. If on the other hand Section 8 does not apply, succession is traceable to the last male holder, who Under the fiction is deemed to die on the date of the death of the widow. In the present case, the plaintiff would be such an heir. It is unnecessary to pursue this matter in the view that I take on other matters arising in the appeal as in any case the plaintiff will be entitled to maintain the suit. But, it is firstly contended that the decree in the suit filed by the plaintiff would preclude the defendant from raising the question as to who is the nearest reversioner and the finding in O.S. No. 49 of 1945 that the plaintiff is the nearest reversioner would operate as res judicata.

7. In Mulla's Hindu Law, 13th Edition, at page 234, the nature of the reversioner's rights is stated as follows:

A reversionary heir, although having those contingent interests which can be differentiated little, if at all, from a spes, successions is recognised by Courts of law as having a right to demand that the estate be kept free from danger during its enjoyment by the widow or other limited heir. He may, therefore, sue to restrain a widow or other limited heir from committing waste or injuring the property. The reason why such a suit by a reversionary heir is allowed is that the suit is by him in a representative character and on behalf of all the reversioners, so that the corpus of the estate may pass unimpaired to those entitled to the reversion. For the same reason, he may bring a suit for a declaration that an alienation effected by her is not binding on the reversion.

The next reversioner for the time being to the estate of a deceased Hindu, expectant upon the widow's death is entitled to a declaration that he is the next reversioner, although in that capacity he has the right to sue on behalf of the reversioners for the protection of the estate.

The result is that though the plaintiff filed the former suit, claiming to be the nearest reversioner, he exercised that right on behalf of the reversioners for the protection of the estate. The declaratory suits by reversioners during the life time of the limited owner, claiming that the alienation made by the limited owner is not binding beyond her lifetime are not brought for the personal benefit of the persons who seek the declaration; but the object is only to remove a common apprehended injury to all the reversioners, presumptive and contingent. The act complained of is to the common detriment, as such the relief sought, for is for the common benefit. In O.S. No. 49 of 1945, both the limited owner as also the alienee were impleaded as parties, and a declaratory decree, holding that the impugned transactions are void beyond the lifetime of the limited owner, was rendered. The said decision will preclude the alienee (present defendants) from going behind the decision.

8. The plaintiff further safeguarded his interests by obtaining a settlement deed from Pavayee, Exhibit B-1, dated 27th May, 1966, subsequent to the filing of the suit. The plaintiff will therefore be entitled to maintain this suit on this ground. Pavayee, the senior widow, filed I.A. No. 4184 of 1967 to get herself impleaded as a party to the suit as second plaintiff, and that petition was allowed by the trial Court. There was a revision to this Court against the said order, in C.R. P. No. 96 of 1968, and during the pendency of the said proceedings, she executed a further settlement deed Exhibit A-17 dated 24th November, 1967 in favour of the plaintiff. The High Court dismissed the civil revision petition, with the observation that the settlement deed had the effect of conferring the right on the plaintiff and would enable him to maintain the suit for redemption. Subsequent to the said order, the plaintiff filed I.A. No. 2211 of 1968 for amendment of the plaint and that petition was dismissed. Against the said order of dismissal, the plaintiff filed C.R.P. No. 1547 of 1968 in the High Court. That petition was allowed and the plaint was suitably amended. The result of these proceedings is that the plaintiff strengthened his claim by obtaining the settlement deeds referred to above. Therefore, the question whether the plaintiff or Pavayee is entitled to claim redemption pales into insignificance as Pavayee, who normally displaces the plaintiff, has relinquished her rights in favour of the plaintiff.

9. The next question arising for determination is whether the plaintiff is entitled to redeem the property. Exhibits A-1 and A-2 are registration copies of the usufructuary mortgage deeds. According to the plaintiff, the mortgage debts are liable to be sealed down by virtue of Section 9-A of Madras Act IV of 1936, and the entire debts have been wiped out by virtue of Section 9-A of the Act. The mortgage deeds were executed on 21st September, 1932 and by the mortgagee being in possession for over 30 years, the contention is that the entire debts became wiped out. The contention of the learned Counsel for the defendant is that so far as item 2 covered by Exhibit A-2 is concerned, the debt is not liable to be scaled down and that Sub-clause 10 (b) of Section 9-A will apply as the assignments were made in 1941 and 1943. This question was not specifically raised in the written statement filed by the defendant and no argument was advanced in the trial Court. Even in the memorandum of appeal to the lower appellate Court, this plea was not specifically raised. It may further be noted that the assignment deeds dated 16th May, 1941 and 10th February, 1943, have not been filed into Court. In order to make Sub-clause 10 (b) of Section 9-A applicable, the defendant should prove that the transfer was made bona fide and for valuable consideration a and no evidence was let in before the trial Court that the assignments were made bona fide and for valuable consideration. Under these circumstances, it is not open to the learned Counsel for the defendant to raise the plea at this stage. The learned Subordinate Judge rightly refused to allow him to raise the plea at the stage of arguments in the lower appellate Court. The usufructuary mortgages Exhibits A-1 and A-2 were executed on 21st September, 1932 and the debts became wiped out on 21st September, 1962. I am therefore of opinion that the plaintiff will be entitled to redeem the mortgages without payment. The finding of the Courts below on this question is confirmed.

10. The further contention of the learned Counsel for the defendant is that the defendant is entitled to the cost of improvements effected by him. No doubt, the defendant was the usufructuary mortgagee. His case is that he effected improvements at a cost of Rs. 1,300 and therefore he would be entitled to be paid the value before he is called upon the deliver possession of the properties to the plaintiff. The defendant's case is not that he effected improvements in order to preserve the properties. Further, the defendant did not effect improvements with the consent of the mortgagor. His contention is that he had installed an oil engine in the suit property. It is certainly open to the defendant to remove the oil engine before delivering vacant possession to the plaintiff. The plaintiff in his evidence has stated that he has no objection to allow the defendant to remove the oil engine. The defendant's further claim is that apart from the oil engine that he had installed, he had planted cocoanut saplings in respect of which he had spent Rs. 45. The cocoanut saplings were according to the defendant planted in 1961, long after the decision in O.S. No. 40 of 1945 on the file of Sub-Court, Coimbatore. I cannot say that the defendant acted bona fide in planting the saplings and therefore the Court was right in negativing the claim for improvements.

11. It is next contended for the plaintiff that the defendant's possession must be held to be wrongful after the date of death of Pappayee on 23rd 'September, 1965, by reason of the decree on O.S. No. 49 of 1945. The defendant's possession is wrongful from 23rd September, 1965, from which date he is liable to pay mesne profits to the plaintiff. Both the Courts below rightly held that the plaintiff is entitled to past mesne profits as claimed by him, and that future mesne profits from the date of plaint till delivery of possession would be determined in separate proceedings. There is no substance in any of the contentions put forward by the learned Counsel for the appellant.

12. The second appeal is dismissed. There will be no order as to costs. No leave.


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