Madras High Court
Pitchaiammal vs Pappathi on 16 December, 2022
S.A(MD)No.871 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.12.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A(MD)No.871 of 2011
1.Pitchaiammal
2.Ramalakshmi
3.Ramalingam ...Appellants
-Vs-
1.Pappathi
2.Ramu Ammal
3.Subramaniam ... Respondents
(second respondent, insane person represented
through her Guardian/Mother, 1st respondent)
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 25.11.2003 in A.S.No.252
of 2001 on the file of the Sub Court, Arupukottai, confirming the judgment and
decree dated 27.02.2001, passed in O.S.No.329 of 1998, on the file of the District
Munsif Court, Aruppukottai.
1/10
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S.A(MD)No.871 of 2011
For Appellants : Ms.R.Pranavi
for Mr.K.S.Durai Pandian
For R3 : Mr.K.Sekar
R1 and R2 : died
JUDGMENT
The plaintiffs in the suit are the appellants. The appellants filed a suit
for declaration that the appellants and the second respondent are entitled to suit
property after the life time of the first respondent and for a consequential
injunction restraining the respondents from interfering with the possession of the
appellants. The said suit was dismissed by the trial Court and the appeal filed by
the appellants/plaintiffs was also dismissed and hence, the appellants are before
this Court.
2.According to the appellants/plaintiffs, the suit property originally
belongs to Ramanatha Thevar. The appellants claimed themselves as children of
Ramanatha Thevar through his second wife Irulayee. The first respondent is the
first wife of the said Ramanatha Thevar. The second respondent is the daughter
of Ramanatha Thevar through his first wife, namely, first respondent. The third
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S.A(MD)No.871 of 2011
respondent is the purchaser of the suit property from the respondents 1 and 2.
According to the plaint averments, the said Ramanatha Thevar, at the time of his
second marriage with the mother of the appellants, in order to make provision for
maintenance of his first wife, namely, first respondent, executed a settlement deed
dated 05.03.1963 in respect of the suit property giving life estate to the first
respondent with vested remainder to the heirs of Ramanatha Thevar and first
respondent. It is also averred in the plaint that as per the terms of said settlement
deed, the life estate holder, namely, first respondent is not entitled to make any
alienation. It is also stated in the plaint that in respect of his other properties,
Ramanatha Thevar executed a Will in favour of his second wife, Irulayee, namely,
the mother of the appellants. It is a specific claim of the appellants that after the
death of the first respondent, as per the terms of settlement deed, the heirs of
Ramanatha Thevar and the first respondent were entitled to the suit property.
Therefore, it is the case of the appellants that the appellants, namely, the children
of Ramanatha Thevar through his second wife and the second respondent, namely,
the daughter of Ramanatha Thevar through his first wife are entitled to suit
property after the life estate holder, namely, the first respondent.
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S.A(MD)No.871 of 2011
3.The respondents 1 and 2 filed a written statement and resisted the suit
on the grounds that as per the terms of settlement deed executed by Ramanatha
Thevar, only the heirs of Ramanatha Thevar and the first respondent were entitled
to absolute estate. It was specifically averred that the heirs of Ramanatha Thevar
through his second wife, namely, Irulayee were not entitled to any vested
remainder under the terms of settlement. It was also specifically averred by the
respondents 1 and 2 that after the death of Ramanatha Thevar, the first respondent
enjoyed the suit property, namely, the subject matter of the settlement deed, dated
05.03.1963, as its absolute owner. It was also averred that the respondents 1 and
2 jointly executed a sale deed in favour of the third respondent on 19.08.1998. On
these grounds, the respondents 1 and 2 sought for dismissal of the suit.
4.Before the trial Court, the first appellant was examined as P.W.1 and
six exhibits were marked on behalf of the appellants/plaintiffs as Ex.A.1 to
Ex.A.6. The second respondent was examined as D.W.1 and sixteen documents
were marked through her as Ex.B.1 to Ex.B.16.
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S.A(MD)No.871 of 2011
5.The trial Court, on appreciation of oral and documentary evidence
especially on consideration of terms of settlement deed, dated 05.03.1963, which
was marked as Ex.A.1, came to the conclusion that on death of the first
respondent, the suit property shall go to the second respondent, who is the only
heir of Ramanatha Thevar and first respondent and consequently, dismissed the
suit. Aggrieved by the same, the appellants herein filed the first appeal in A.S.No.
252 of 2001, on the file of the Sub Court, Aruppukkottai. The learned First
Appellate Judge also concurred with the findings of the trial Court and hence, the
appellants have come up by way of this second appeal.
6.The learned counsel for the appellants by drawing the attention of this
Court to the recitals found in Ex.A.1-settlement deed submitted that only life
estate was given to first respondent and on her death the property shall go the
heirs of both Ramanatha Thevar and first respondent. In other words, it is the
submission of the learned counsel for the appellants that since the appellants,
who are all heirs of Ramanatha Thevar, as they are the children of his second
wife, they are also entitled to right over the suit property in their capacity as heirs
of Ramanatha Thevar. The learned counsel for the appellants by drawing the
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S.A(MD)No.871 of 2011
attention of this Court to the deposition of D.W.1, submitted that D.W.1 herself
admitted that after death of first respondent, the appellants and the second
respondent are entitled to the suit property.
7.A perusal of Ex.A1-settlement deed executed by the Ramanatha
Thevar would show that it was styled as settlement in lieu of maintenance. The
recitals found in Ex.A.1-settlement deed also would make it clear that the said
document was executed by Ramanatha Thevar in contemplation of his second
marriage. There is a clear recitals in Ex.A1 that in order to make certain
provision for maintenance of his first wife, namely, the first respondent herein,
the settlement deed was executed. Under the terms of settlement deed, a life
estate was given to the first respondent with vested remainder to the heirs of
Ramanatha Thevar and first respondent. First of all, the life estate given to the
first respondent is in lieu of her right of maintenance. Therefore, by operation of
Section 14(1) of Hindu Succession Act, the life estate conferred on first
respondent, would blossom into an absolute estate. Therefore, after the death of
the first respondent, the property will go to her Class-I heir, namely, the second
respondent alone. The appellants are not entitled to claim any right over the
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S.A(MD)No.871 of 2011
property. Even otherwise, as per the recitals found in Ex.A.1, after the death of
first respondent, the property shall go to the heirs of Ramanatha Thevar and his
wife, namely, the first respondent. As I mentioned earlier, Ex.A.1 was executed
in contemplation of second marriage of Ramanatha Thevar. On the date of
execution of Ex.A.1, there were only two heirs to the Ramanatha Thevar, namely,
Thannammal, deceased sister of second respondent and the second respondent
herself. Therefore, by virtue of clear recitals found in Ex.A1, on the death of first
respondent, namely, Pappathi, the only heir of Ramanatha Thevar and Pappathi,
namely, Ramu Ammal, the second respondent herein is entitled to the suit
property. The appellants/plaintiffs were not even born on the date of execution of
Ex.A.1. There cannot be a gift of immovable property in favour of a person, who
is not in existence. Therefore, the contention made by the learned counsel for the
appellants that on the basis of recitals found in Ex.A.1, the appellants are also
entitled to the suit property along with second respondent, cannot be accepted.
Both the Courts below by rightly appreciating the recitals found in Ex.A.1 held
that the appellants are not entitled any right over the suit property. The said
finding requires no interference by this Court.
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S.A(MD)No.871 of 2011
8.Though the learned counsel for the appellants submitted that the
second respondent herself as D.W.1 admitted the rights of the appellants over the
suit property in her evidence, a perusal of evidence of D.W.1 circulated by the
learned counsel for the appellants, makes it clear that there is no such admission.
D.W.1 only says that after the death of her mother, namely, the first respondent,
her heirs were entitled to the suit property. Even assuming that there is an
admission, an erroneous admission will never confer title on the appellants. In
such circumstances, I do not find any question of law muchless the substantial
question of law in this appeal and consequently, the second Appeal is dismissed
by confirming the concurrent judgments and decrees passed by the Courts below.
However, there will be no order as to costs.
16.12.2022
Index : Yes / No
Internet : Yes / No
cp
To
1. The Subordinate Judge,
Arupukottai.
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S.A(MD)No.871 of 2011
2.The District Munsif,
Aruppukottai.
3.The Section Officer, VR Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.871 of 2011
S.SOUNTHAR, J.
CP
S.A(MD)No.871 of 2011
16.12.2022
https://www.mhc.tn.gov.in/judis
