Madras High Court
Latvian Evangelical Lutheran Church vs Chitra on 6 December, 2023
S.A.No.455 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 06.12.2023
CORAM
THE HONOURABLE MR. JUSTICE S.SOUNTHAR
S.A.No.455 of 2017
and
CMP.No.11412 of 2017
Latvian Evangelical Lutheran Church
Rep.by its Vice President
Kazhuthur Village
Tittakudic Taluk ...Appellant
Vs.
Chitra ... Respondent
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, aggrieved by the judgment and decree dated 15.12.2015 made in
A.S.No.4 of 2015 on the file of the Additional Sub-Judge, Viruthachalam,
reversing the judgment and decree dated 17.12.2014 made in OS.No.171 of
2003 on the file of the District Munsif Cum Judicial Magistrate, Tittakudi.
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1/18
S.A.No.455 of 2017
For Appellant : Mr.J.R.K.Bhavanandam
for Mr.R.Mubarak Basha
For Respondent : Mrs.Hema Sampath
Senior Counsel
for Mrs.R.Meenal
JUDGMENT
The defendant in the suit is the appellant. The respondent herein
filed a suit for declaration of title, recovery of possession of vacant site and
mandatory injunction to remove the superstructure found in the suit property.
The suit was dismissed by the trial Court. Aggrieved by the same, the
appellant preferred an appeal in A.S.No.4 of 2015 on the file of the Additional
Sub-Court, Viruthachalam. The First Appellate Court reversed the findings of
the trial Court and allowed the appeal granting decree as prayed for. Aggrieved
by the same, the defendant is before this Court.
2. According to the respondent/plaintiff, the suit property
originally belonged to the father of the plaintiff Ramanathan. He executed a
settlement deed on 04.07.1977 in favour of the plaintiff's mother
Marudhambal. The said settlement deed was executed at the time of
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Ramanathan marrying with Marudhambal. Since Ramanathan's wife
Marudhambal was minor at that point of time, in the settlement deed
Marudhambal was represented by her father Periyasamy. On the date of
settlement deed the possession of suit property and other properties were
handed over to Periyasamy on behalf of Marudhambal. As per the terms of
settlement, the suit property was settled in favour of unborn children of
Marudhambal and Ramanathan with life estate in favour of Marudhambal.
Being the daughter of Marudhambal the plaintiff was entitled to the suit
property under the terms of settlement deed. It was also stated in the
settlement deed that during the life time of Marudhambal, she was not entitled
to alienate the property to the third parties. Violating the terms of settlement
the settlor namely Ramanathan sold the property in favour of the third parties
and now the defendant had been in possession and enjoyment of the suit
property. It was claimed that the plaintiff was born on 03.06.1983 and the suit
was filed within three years from the date of attaining majority.
3. The appellant/defendant filed a written statement raising a plea
that the settlement deed dated 04.07.1977 executed by Ramanathan was not
acted upon and the possession was not given to Marudhambal or her father
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Periyasamy. The appellant also disputed the paternity of the plaintiff. In the
additional written statement it was pleaded by the appellant that document
dated 04.07.1977 was only a Will not settlement and therefore, during his lift
time Ramanathan was entitled to alienate as per his wish.
4. The appellant/defendant also raised a plea of non joinder of
necessary party viz., Ramanathan and Marudhambal. It was also averred by
the appellant that Ramanathan sold the suit property to one Samikannu on
29.08.1980 and from that person the appellant purchased the property under
documents dated 18.02.1986, 11.08.1987 and 19.09.1990. After purchase the
appellant had put up a church, school and memorial in the suit property by
spending amount and the appellant had been in possession and enjoyment of
the suit property for several years. It is also averred by the appellant that it was
a bonafide purchaser of the suit property. On these pleadings the appellant
sought for dismissal of the suit.
5. Before the trial Court, the respondent/plaintiff was examined as
PW1 and her mother Marudhambal was examined as PW2. The attestor to the
settlement deed Ex.A1 was examined as PW3. On behalf of the
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respondent/plaintiff 13 documents were marked as Ex.A1 to Ex.A13. On
behalf of the appellant/defendant, Victor Deva Sagayam (Vice President of
Latvin Evangelical Lutheran Church) was also examined as DW1 and witness
to Ex.B3 sale deed in favour of the appellant was examined as DW2. The
father of the respondent/plaintiff was examined as DW3. On behalf of the
appellant 4 documents were marked as Ex.B1 to Ex.B4.
6. On appreciation of oral and documentary evidence available on
record, the trial Court came to the conclusion that Ex.A1 was a settlement
deed and the same was acted upon. The trial Court also found that the
respondent was born to Marudhambal and Ramanathan. However, the trial
Court dismissed the suit on the ground that during the life time of
Marudhambal and Ramanathan, the respondent/plaintiff was not entitled to file
a suit claiming title over the same.
7. Aggrieved by the same, the respondent preferred an appeal in
A.S.No.4 of 2015 on the file of the Additional Sub-Court, Virudhachalam. The
first Appellate Court also concurred with the findings of the trial Court that
Ex.A1 was a valid settlement deed and the same was acted upon. The first
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Appellate Court also came to the conclusion that paternity of the respondent
was proved and she was born to Marudhambal and Ramanathan.
8. On consideration of Ex.A1 settlement deed the First Appellate
Court came to the conclusion that as per the terms of settlement deed
Ramanathan could not alienate the suit property on his own and therefore, the
alienation made by him in favour of Samikannu and subsequent alienation in
favour of the appellant were not sustainable. Therefore, the First Appellate
Court came to the conclusion that the respondent proved her title under Ex.A1
and consequently entitled to declaration of title, recovery of possession of
vacant site as prayed for. Aggrieved by the said judgment and decree, the
unsuccessful defendant has come up with this Second Appeal.
9. At the time of admission, this Court formulated the following
substantial questions of law:
“i) Whether the Lower Appellate Court is
right in granting declaration of title in favour of plaintiff
while her mother is alive and no transfer of title was
made by her?
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ii) Whether the Courts below are justified in
holding that Ex.A1 is a valid settlement and the same is
acted upon?”
10. The learned counsel for the appellant submitted that reading
of Ex.A1 document makes it clear there was no transfer of interest inpresaenti.
Therefore, both the Courts below committed an error in coming to the
conclusion that Ex.A1 was settlement deed. The learned counsel for the
appellant further submitted that as per terms of Ex.A1 Ramanathan during his
life time, was entitled to sell the suit property to third parties as per his wish.
Therefore, the appellant acquired title under the documents executed by
Ramanathan infavour of Samikannu and subsequent sale deeds.
11. The learned counsel for the appellant further submitted that
even assuming Ex.A1 can be treated as settlement deed it confers only a life
estate in favour of the plaintiff/respondent's mother and hence, during life time
of mother, the respondent could not maintain the suit.
12. In support of his contention, the learned counsel for the
appellant relied on the judgment of the Hon'ble Apex Court in Vishwambhar
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and others, Vs. Laxminarayan (Dead) through LRs and another, reported in
(2001) 6 SCC 163.
13. The learned Senior Counsel for the respondent/plaintiff
submitted that reading of Ex.A1 document clearly establish that the transfer of
interest had taken place under the document and therefore, it should be treated
as settlement deed. The learned Senior Counsel for the respondent further
submitted that both the Courts below on appreciation of recitals found in
Ex.A1 and other evidence available on record came to the conclusion Ex.A1
was settlement deed and the same had been acted upon.
14. The learned Senior Counsel for the respondent further
submitted that under Ex.A1 the life estate is created in favour of mother of the
respondent with absolute estate in favour of the respondent/plaintiff. In such
circumstances, the declaration of absolute title cannot be granted in favour of
respondent and however Court can declare lesser right of vested remainder in
favour of respondent. When a question was posed to the learned Senior
Counsel for the respondent whether the respondent could maintain a suit for
relief of recovery of possession when life estate holder is alive, the learned
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Senior Counsel for the respondent submitted that the recovery of possession
can be enforced after the life time of estate holder to that extent the relief
prayed for can be moulded by the Court.
15. In support of her contention, the learned Senior Counsel for
the respondent relied on the judgment of the Hon'ble Apex Court in
Rukhamanbai Vs. Shivram, reported in AIR 1981 SC 1881.
16. It is not disputed that the property originally belonged to
Ramanathan and at the time of marrying Marudhambal, the mother of the
respondent, he executed a document dated 04.07.1977 marked as Ex.A1. Since
Marudhambal was minor at that point of time, she was represented by her
father.
17. The relevant recital in Ex.A1 document reads thus:
“ehd; cd;id jpUkzk; bra;J bfhs;s cd;
bgw;nwhh;fs; bgz; nfl;ljw;F cd; bgw;nwhh;fs; cd; bgaUf;F
brhj;J Mjut[ bra;J itf;f ntz;Lk; vd;W brhd;djpd; nghpy;
ehDk; mjw;F rk;kjpjJ
; cd; bgaUf;F rpy brhj;J Mjut[ bra;J
itf;f vz;zpa[k; ehDk; cd;id jpUkzk; bra;J ,y;ywJ
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Jiztpahf Vw;Wf;bfhs;sg;nghFk; cd;nghpy;
vdf;Fs;s????????????P.Ramanathan3????????????md;gpYk;
gphpaj;jhYk; vdf;F ghj;jpakhd ,jdoapy; fz;l U:gha; 21000/00
,Ugj;jp xd;whapuk; bghUkhdKs;s brhj;Jf;fs; ,e;j brl;oy;
bkz;L gj;jpuk; K:yk; cd;dplk; xg;g[fb; fhLj;Jtpl;nld;/ ,jdoapy;
fz;l brhj;Jf;fisa[k; eP jdpjJ ; ve;jtpjkhd bge;jfguhjPdk;
bra;ahky; mDgtpj;J vd;Dld;????????????P.Ramanathan
4?????????????xw;Wikahf ,Uf;fntz;oaJ ek;Kila thH;ehspy;
ekf;Fs; Vw;gLk; re;jjpfs; ,jdoapy; fz;l brhj;Jf;fs; rh;t
Rje;jpukha; rkghfkha; mile;J bfhs;s ntz;oaJ mg;go
xUf;fhy; re;jjpfs; ,y;yhtpoy; ek; ,Uth;fs; Ma[Sf;F gpwF
vd;Dila thh;Rjhuhh;fs; milantz;oaJ ,jdoapy; fz;l
brhj;Jf;fspy; guhjPdk; bra;jhYk; ehk; ,UtUk; xw;Wikahf
tpdpnahf bra;a ntz;oaJ ek;kpy; jdpjJ ; xUth;fb; fhUth;
bra;ag;TlhJ mg;go bra;;jhYk;
mJ??????????????P.Ramanathan
5?????????????bry;yj;jFe;jjy;y ,dp ,e;j brl;oy; bkz;L
gj;jpuj;ij vt;tpjfhuzj;ij Kd;dplL; khw;wt[k; uj;J bra;at[k;
vdf;F mjpfhuk; ,y;iy mg;go bra;jhYk; mJ bry;yj;jFe;jjy;y/”
18. A perusal of Ex.A1 would suggest that the document was
styled as settlement deed. It was also clearly recited on the date of document
the possession of the property was given to the settlee. It was further recited
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that the settlement deed was irrevocable. Under the document life estate had
been created in favour of Marudhambal with absolute estate in favour of
unborn children of Marudhambal and Ramanathan. The settlee has been
prohibited from encumbering the property during her life time. The learned
counsel for the appellant by reading the recitals in the document stated that the
settelor and settlee can alienate the property jointly. He further submitted that
the said recital in the document proves settlor retained his right over the
property and hence, the same cannot be treated as a gift deed. However, a
perusal of Ex.A1 would suggest that the settlor created life estate in favour of
settlee with absolute estate in favour of unborn children of both Marudhambal
and Ramanathan. Therefore, once the property is settled in favour of settlee
and her unborn children, the settlor divested of his right over the property
under earlier clause in the deed. Any subsequent clause enabling the settlor
and settlee to jointly encumber the property is repugnant to the gift already
made under earlier clause. It is settled law in case of non testamentary
document, in case of conflict between earlier clause and later clause, the
earlier clause will prevail over the later clause. (Radha Sundar Dutta Vs.
Mohd. Jahadur Rahim & Ors, reported in AIR 1959 SC 24 and Uma Devi
and Ors., Vs. T.C. Sidhan (Dead, reported in MANU/SC/1026/2003). In
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Radha Sundar Dutta Vs. Mohd. Jahadur Rahim & Ors, the Hon'ble Apex
Court observed as follows:
“16...If, in fact, there is a conflict between the
earlier clause and the later clauses and it is not possible to give
effect to all of them, then the rule of construction is well
established that it is the earlier clause that must override the
later clauses and not vice versa. In Forbes v. Git (1922) 1 A.C.
256, Lord Wrenbury stated the rule in the following terms:
“If in a deed an earlier clause is followed by
a later clause which destroys altogether the
obligation created by the earlier clause, the later
clause is to be rejected s repugnant and the earlier
clause prevails. In this case the two clauses cannot
be reconciled and the earlier provision in the deed
prevails over the later.”
Even otherwise, the clause in the document enabling settlor and settlee to
jointly encumber the property is repugnant to the gift made under the
document and therefore, the same is not valid.
19. In view of the discussions made earlier, this Court comes to
the conclusion that Ex.A1 document is only a settlement deed in favour of the
plaintiff's mother Maruthammal creating life interest in her favour with
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absolute estate in favour of unborn child namely the plaintiff. Therefore, the
said document creates contingent right in favour of the plaintiff. The right
acquired by the respondent/plaintiff under Ex.A1 is contingent on the death of
Marudhambal. In this regard it should be appropriate to refer the judgment of
the Hon'ble Apex Court in Rukhamanbai Vs. Shivram, reported in AIR 1981
SC 1881. The relevant portion of the Hon'ble Apex Court judgment reads thus:
“19...It was next contended that in any event the
appellant having been given a life estate with the vested
remainder in her children, she had no vested interest in the
property during her lifetime but her interest would be
contingent interest and therefore even during her lifetime,
the children would be the owners and as they were minors
the date of statutory purchase would be postponed under
section 32 F. Looking to the terms of the deed of settlement,
subject to the limitations therein prescribed the appellant
had a vested interest with a right to take over management
on attaining majority and to deal with the property in her
own way. Assuming without deciding that she had no right to
will, gift, sell or encumber the property yet assuming she did
deal with it in the manner prohibited it would nonetheless be
binding during her lifetime. The property would devolve on
the heirs named in the deed and the devolution would take
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place on her death. Therefore, upon a pure literal
construction of deed coupled with intendment of the
settlement it is difficult to accept Mr. Sanghi's submission
that her interest in the property during her life time was
contingent interest. This will further be borne out by the
provision contained in section 13 of the Transfer of Property
Act inasmuch as she was given life or limited interest and the
remainder to her children none of whom was in existence at
the time of transfer. Even if transfer is in favour of unborn
person, at the date of transfer to be valid there has to be a
prior interest created by the very transfer. This prior interest
though limited would not be contingent but vested interest.
In fact the interest of future born children would be
contingent till the death of the appellant. The deed of
settlement cannot be construed as a transfer in favour of
unborn person, yet it settles property on trust and the
unborn children, under trust, may be beneficiaries but they
can claim interest only after the death of the appellant and
no interest in her life time. Under the deed of settlement an
interest is created in favour of the children of the appellant
and the interest would take effect on the happening of
specified uncertain event-uncertain as to time-namely, the
death of the appellant, then till the death of the appellant
the interest of the children would be contingent. It is
nothing short of spes successionis...
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20. Having examined the trust deed before us, we are
satisfied that the appellant had the vested interest in the
property during her life time and the children had only
contingent interest during that period.”
20. Therefore, this Court comes to the conclusion that the
respondent/plaintiff has contingent interest in the suit property till the death of
the respondent's mother Marudhambal to that extent the right of the
respondent over the suit property can be declared. However, the respondent is
not entitled to get declaration of absolute title over the suit property till the
death of Marudhambal.
21. Both the Courts below on appreciation of Ex.A2 and other
documents evidence available on record came to the conclusion that the
settlement deed executed under Ex.A1 was acted upon and the respondent is a
daughter born to Marudhambal and Ramanathan. The said factual findings
were based on proper appreciation of the evidence available on record and the
same requires no interference by this Court. Once this Court affirms the
findings of Courts below that settlement deed was valid, the alienation by
Ramanathan in favour of Samikannu and subsequent alienation in favour of
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appellant are all invalid and appellant has no right to remain in possession of
suit property as against the respondent who has got better right.
22. In view of discussion earlier, this Court has come to the
conclusion that the respondent is entitled to declaration of her contingent
interest over the suit property till death of Marudhambal. Marudhambal has
got vested interest in the suit property during her life time and the right of the
respondent is only a contingent on her death. The contingent event is a certain
one namely the death of Marudhambal, however the timing of event is
uncertain. In such circumstances, it is not depending on purely uncertain
event, therefore, the respondent is entitled to declaration of her contingent
interest over the suit property. When the respondent's mother has got vested
interest in the suit property, during her life time, it is not open to the
respondent to seek recovery of possession. However, the respondent is entitled
to recovery of possession based on her title after happening of the contingent
event namely the death of Marudhambal. Hence, it is clarified that the decree
for recovery of possession granted by the first Appellate Court cannot be
enforced during the life time of Marudhambal.
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23. It is settled law even if Court is not inclined to grant a larger
relief prayed for, it can grant lesser relief based on evidence. In the case on
hand even if respondent is not entitled to declaration of absolute title, this
Court is inclined to declare her contingent interest till death of Marudhambal.
In view of the discussions made earlier, the first question of law is partially
answered in favour of the respondent and the respondent is entitled to get
lesser relief of declaration of her contingent right over the suit property till the
death of her mother Marudhambal (namely, right to get absolute right on death
of Marudhambal). The substantial question of law No.2 is answered against
the appellant and in favour of the respondent that exhibit A1 is valid
settlement deed and the same was acted upon. In view of the matter, the
Second Appeal is partly allowed by modifying the judgment and decree passed
by the First Appellate Court as indicated above.
24. a) In the result, the Second Appeal is partly allowed. The
judgment and decree of the First Appellate Court is modified by declaring the
contingent right of the respondent/plaintiff over the suit property till the death
of Marudhambal and her absolute right on death of Marudhambal.
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S.SOUNTHAR, J.
dna
b) the respondent is entitled to recovery of vacant possession of
the suit property after removal of superstructure only after the life time of
Marudhambal.
c) In the facts and circumstances of the case, there shall be no
order as to costs. Consequently, connected Miscellaneous Petition is closed.
06.12.2023
Index : Yes
Internet : Yes
Neutral Citation Case : Yes
dna
To
1.The Additional Sub-Judge, Viruthachalam
2.The District Munsif Cum Judicial Magistrate, Tittakudi.
and
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