Madras High Court
Thiruvengadam vs Hilda on 4 March, 2025
Author: V.Sivagnanam
Bench: V.Sivagnanam
A.S.No.286 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 17.02.2025
PRONOUNCED ON : 04.03.2025
CORAM
THE HONOURABLE MR. JUSTICE V.SIVAGNANAM
A.S.No. 286 of 2013
and
CMP No.12716 of 2024
1. Thiruvengadam
2. V. Devakumar ... Appellants
(Amended vide order of Court
dated 30.08.2023 made in
CMP No.18919 of 2023 in
A.S.No.286 of 2013)
Vs.
1. Hilda
2. R.Rajendra Kani Ammal
3. R. Sivabalan
4. Mani ... Respondents
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1/22
A.S.No.286 of 2013
Prayer: First Appeal has been filed under Section 96 of the Civil Procedure
Code to set aside the judgment and decree of the III Additional District Judge,
Tiruvallur @ Poonamallee in O.S.No.29 of 2010 dated 31.01.2013.
For Appellants : Mr. M.S. Subramanian
For Respondents : Mr.V. Manohar,
for R2 & R3
: R1 dismissed
vide order dated 10.02.2023
: R4- set exparte
vide order dated 17.02.2025
JUDGMENT
Aggrieved over the judgment and decree dated 31.01.2013 passed in
O.S.No.29 of 2010 on the file of the III Additional District Court, Tiruvallur @
Poonamallee, the plaintiffs have preferred the first appeal.
2. On 17.02.2025, though the name of the 4th respondent was printed in
the cause list, none appeared on behalf of the 4th respondent either in person or
through his counsel and hence, the 4th respondent was called absent and set
exparte.
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3. For the sake of convenience, the parties are referred to as per their
rankings in the trial Court.
4. The plaintiffs filed the suit for declaration of plaintiffs' title over the
suit property, recovery of possession and for mesne profit and for cost.
5. The appellants/plaintiffs case is as follows:
Originally, Tmt.Muniammal and others owned the suit property as a plot
and she sold the same to Thiru.Balasingam under sale deed dated 5.12.1981.
The said Balasingam, who was an employee in A.G.S. Office, had availed a
housing loan by mortgaging the suit property and constructed a house therein
and he was in possession of the suit building. Balasingam died on 11.03.1985
and hence, the legal heirs of his wife Tmt.Manickavalli Suseela and daughter
Tmt.Mary Suba Rathina, inherited the suit property and discharged the
mortgaged debt and obtained deed of re-conveyance dated 20.09.2002 from the
Government. Tmt.Manickkavalli Suseela leased out the suit property to their
family friend Ramachandran as per lease agreement dated 7.12.1987.
Tmt.Mary Suba Rathina obtained a General Power of Attorney Deed dated
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21.04.2008 from her mother Tmt.Manickkavalli Suseela and entered into a
registered agreement of sale dated 25.04.2008 with one Thiru.Gopi and
subsequently cancelled the said sale agreement by executing a cancellation
deed dated 18.09.2008. Thereafter, Tmt.Mary Suba Rathina sold the suit
property to the plaintiff as per sale deed dated 18.09.2008 and handed over
possession. The plaintiffs are in actual possession and enjoyment of the suit
property from the date of purchase and they have obtained necessary
permission from the authority for demolition of the existing super structure in
the suit property.
6. That being so, first defendant Tmt.Hilda, claimed to be the wife of
Late Balasingham, opposed Tmt.Manicka Valli Suseela and Tmt.Merry Suba
Rathina (Wife and daughter of Late. Thiru. Balasingham), from receiving
certain money due to late Thiru. Balasingham. Hence, Tmt.Manickka Valli
Suseela and Tmt.Mary Suba Rathina had filed petition S.C.O.P.No.30/2000 on
the file of Sub-Court, Tuticorin by arraying Tmt.Hilda as the respondent. The
said Succession O.P. was allowed by conclusively decided that first defendant
Hilda is not the wife of deceased Balasingham and Tmt.Manickkavalli Suseela
is the wife and Tmt.Mary Suba Rathina is the daughter of Late. Balasingham. It
is falsely claimed by the defendants that the first defendant had executed an
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agreement to sell the suit property to second defendant and consequently the
second defendant was put in possession of the suit property and the second
defendant has settled the suit property in favour of her son the third defendant.
The claim of the defendants over the suit property is absolutely false and
vexatious. The fourth defendant has filed a suit in O.S.383/2008 on the file of
District Munsif Court, Poonamallee against the plaintiffs for permanent
injunction that he should not be evicted except under due process of law.
Further the third defendant filed a suit in O.S.392/2009 on the file of District
Munsif Court, Poonamallee against the plaintiffs and others for a declaration
that a settlement deed created by them is true and valid and the sale deed in
favour of the plaintiffs is invalid and consequential relief of permanent
injunction. So the plaintiffs are constrained to file the suit for declaration of
their title over the suit property and consequentially for the relief of permanent
injunction. If the court holds that the plaintiffs are ousted from possession and
the defendants are in actual possession the plaintiffs alternatively seeking the
relief of declaration and title and consequently for recovery of possession of
the suit property. Hence the suit is filed for declaration declaring the plaintiffs
title over the suit property and recovery of possession of the suit property and
also directing the defendants to pay mesne profits at the rate of Rs.10,000/-
p.m. from the date of plaint till the delivery of possession and for costs.
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7. The first defendant not contested the suit. The defendants 2 to 4 alone
contested the suit.
8. The contentions in the written statement filed by the 3rd defendant
and adopted by the defendants 2 and 4 in brief are as follows:-
Except the facts, which are admitted herein, all other allegations in the
plaint are denied. The power agent of the plaintiffs is not competent to file the
suit. Requisite permission is not obtained from the court. The suit is bad for
non joinder of necessary parties. Plaintiffs' alleged predecessors are proper and
necessary parties. First defendant's husband is Thiru Balasingham and he is
known to the plaintiffs. Second defendant's husband entered into a sale
agreement with first defendant in respect of the suit property. In pursuance of
the said agreement, possession was delivered to the second defendant and it
was ratified by the first defendant. Second defendant is the mother of 3rd
defendant. The 3rd defendant, his father and mother made improvements in the
suit property by investing huge moneys.
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9. As entire sale consideration was paid to the first defendant, the second
defendant became the ostensible owner in possession. In that capacity, the
second defendant settled the suit property in favour of the 3rd defendant and
delivered possession. Now, the entire superstructure available in the suit
property belongs to the 3rd defendant. It is true that originally Balasingham
purchased the suit property under sale deed dated 05.12.1981. It is false to say
that Balasingham was in possession and enjoyment of the suit property till his
demise. The claim made by the plaintiffs that Tmt.Manickka Valli Suseela and
the Tmt. Mary Suba Rathina are the legal heirs of deceased Balasingham is
specifically denied as false. It is false to state that Tmt.Manickkavalli Suseela
leased out the suit property to Ramachandran, the father of 3rd defendant on
07.12.1987. Despite the plaintiffs not being in possession, they have alleged
that they obtained permission to demolish the superstructure in the suit plot.
The sale deed in favour of the plaintiffs dated 18.09.2008 is a sham and
nominal document and it is not valid in law. The Succession Original Petition
No.30/2000, which was filed after 15 years of death of Balasingham, is not
maintainable. The plaintiffs are not bonafide purchasers of the suit property for
consideration. The suit claim is barred by limitation for the relief of declaration
and also for recovery of possession. The suit claim is under valued. There is no
cause of action for the suit. The plaintiffs are not entitled for the relief claimed
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in the suit and the suit is liable to be dismissed.
10. On the basis of the abovesaid pleas set out by the respective parties,
the trial Court framed the following issues for consideration:-
1. Whether the plaintiffs are entitled for declaration and recovery of
possession of the suit property as prayed for in the suit?
2. Whether the suit is barred by limitation?
3. Whether the suit is properly valued?
4. Whether the plaintiffs are entitled for mesne profits as prayed for in
the suit?
5. To what other relief the plaintiffs are entitled to?
11. Before the trial Court, the power of attorney of the plaintiffs, one
Mr.S.Ravi has been examined as PW1 and fourteen documents were marked as
Ex.A1 to A14. The 2nd defendant Tmt. Rajendra Kani and her son 3rd
defendant Tr.Sivabalan have been examined as DW1 and DW2 respectively
and fifteen documents were marked as Ex.B1 to B15.
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12. The Trial Court, upon considering the evidence on record, dismissed
the suit with cost. Aggrieved by this judgment and decree of the Trial Court,
the plaintiffs have preferred this First Appeal before this Court.
13. The points for consideration before this Court are as follows:-
1. Whether the plaintiffs are entitled for declaration of title over the
plaint schedule properties and to recover the possession of the suit properties
as prayed for in the suit and also for mesne profit as claimed?
2. Whether the suit is barred by limitation ?
3. Whether the Trial Court is right in not accepting the plaintiffs' title on
the ground that first defendant Hilda is the second wife of Balasingam and her
son and daughter as illegitimate children of deceased Balasingam, are entitled
for a share as legal heirs and the plaintiffs' vendor are not absolute owner of the
entire property ?
4. To what other relief?
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14. The learned counsel for the appellants/plaintiffs would submit that
the judgment and decree of the Trial Court is contrary to law, against the
weight of evidence and probabilities of the case. The learned counsel further
contended that the Trial Court failed to appreciate that the plaintiffs have
clearly pleaded as to his right over the property and let evidence in support of
such pleadings. The first defendant is not the wife of Balasingam and she
remained exparte. They have not filed any written statement. The Trial Court
overlooked the document Ex.B.3. It reflects that Mrs.Manickavalli Suseela is
wife of Balasingam in the records. The Trial Court overlooked the fact of
succession certificate issued by the competent Court. Mrs.Manickavalli
Suseela is the only legally wedded wife of Mr.Balasingam. Without any
evidence and materials, the Trial Court found that the first defendant is also the
wife of Balasingam. The said findings runs contrarily to the legal principles.
Parties being Christians, second wife is not recognised and illegitimate
children are also not entitled to have any share over the properties. The
Christians law of succession is governed by the Indian Succession Act. In the
Indian Succession Act, there is no reference to illegitimate child gaining any
right. Therefore, the finding of the Trial Court that illegitimate children will be
entitled to a share in the property is contrary to the provisions of Indian
Succession Act. When Mrs.Manickavalli Suseela and her daughter are legal
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heirs of deceased Balasingam, they are entitled to the property. It is admitted
fact that the Balasingam is the original owner of the plaint schedule property.
Under these circumstances, claiming title through first defendant Mrs.Hilda is
unsustainable one. The Trial Court overlooked the facts and documents,
dismissed the suit contrary to the evidence on records and legal principles and
hence, the judgment and decree of the Trial Court is unsustainable one and the
learned counsel reiterated the other grounds raised in the grounds of appeal and
thus, pleaded to set aside the judgment and decree of the Trial Court and allow
the appeal.
15. The learned counsel for the respondents 2 and 3/defendants 2 and 3
supported the judgment and decree of the Trial Court. Further contended that
the defendants are in possession and enjoyment of the suit property from the
year 1987. The plaintiffs' vendor is never in possession and enjoyment of the
suit property. Admittedly, the possession of property was not handed over to
the plaintiffs in pursuance of the sale deed Ex.A.7 dated 18.09.2008. There is
no illegality in finding of the Trial Court and no merit in the appeal and thus,
pleaded to dismiss the appeal as it has no merit.
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16. I have considered the matter in the light of the submissions made by
the learned counsel for the parties and perused the materials available on
records carefully.
The appellants filed this petition to receive the following documents as
additional evidence on the side of the appellants in the above appeal:-
1. Legal Heirship Certificate of Balasingh, marked as
Ex.R9 in O.S.No.383 of 2008, District Munsif Court,
Poonamallee, dated 15.05.1985.
2. Registration copy of General Power of Attorney
executed by Muniammal wife of Vijayaraghavalu Naidu in
favour of Jayaraman Son of Janardhanam, dated 02.06.1986.
3. Registration copy of General Power of Attorney
executed by Hilda wife of Balasingh in favour of Rajendrakani
Wife of late Ramachandran, dated 03.01.1991.
4. Original Petition in Succession O.P.No.30 of 2000
Subordinate Judge, Tuitorin, dated 13.03.2000.
5. Certified copy of plaint in O.S.No.383 of 2008 ,Disrict
Munsif Court, Poonamallee, dated 16.12.2008.
6. Written statement of defendants 3 and 4 in O.S.No.383
of 2008, D.M.C., Poonamallee, dated 16.12.2008.
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7. Fair order in I.A.No.1716 of 2008 in O.S.No.383of
2008, DMC, Poonamallee, dated 24.06.2009.
8. Certified copy of plaint in O.S.No.392 of 2009, District
Munsif Court, Poonamallee, dated 13.11.2009.
9. Certified copy of judgment in O.S.No.383 of 2008,
District Munsif Court,Poonamallee, dated 04.02.2013.
10. Certified copy of decree in O.S.No.383 of 2008,
District Munsif Court, Poonamallee, dated 04.02.2013.
11. Certified copy of judgment in O.S.No.392 of 2009
District Munsif Court, Poonamallee, dated 08.07.2014.
12. Certified copy of decree in O.S.No.392 of 2009
District Munsif Court, Poonamallee, dated 08.07.2014.
13. Online copy of property tax receipt in the joint names
of B.Thiruvengatam and V.Devakumaran for hte period II/2022-
2023, 1/2023-2024 and II/2023-2024, dated 23.11.2023.
14. Patta in favour of B. Thiruvengatam and V.
Devakumarn in Patta No.5824 in respect of Survey No.6A1A1B,
Valasaravakkam VIllage, Maduravoyal Taluk, dated 30.11.2023
18. I have heard the counsel for the petitioner and gone through the
additional documents filed as additional evidences. All these additional
documents 1 to 14 were not filed during the time of trial. For non filing of the
documents before the Trial Court has not been satisfactorily explained. Further
these documents are not important to decide the issue on hand, and therefore,
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this petition is liable to be dismissed as it has no merits. Accordingly, CMP
No.12716 of 2024 is dismissed.
Point No.3
On perusal of records, the facts reveal that the suit property was
originally purchased by one Mr. Balasingam and he constructed building
thereon. It is evidenced by Ex.A.1 sale deed dated 05.12.1981. The said
Mr.Balasingam died on 06.03.1985, which is evidenced by Ex.A2 the death
certificate of Balasingam and there is no dispute with regard to this. According
to the plaintiffs, the suit property was leased out to Ramachandran, father of
the third defendant and the date of lease is stated as 07.12.1987. For these
allegations, there is no material on records.
20. According to the plaintiffs, Mr.Balasingam's wife is
Mrs.Manickavalli Suseela and his daughter is Mrs.Mary Shuba Ratna. They
are only the legal heirs to the deceased Mr.Balasingam. According to the
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defendants, the first defendant Mrs.Hilda is the second wife of the deceased
Mr.Balasingam. She entered into a sale agreement with the second defendant,
Mrs.Rajendra Kani in respect of the suit property agreeing to convey the suit
property. In pursuance of sale agreement, the possession was delivered to the
second defendant and it was ratified by the first defendant. The third defendant
made improvement and constructed a house in the suit property and enjoying
the same.
21. On perusal of evidence, it reveals that admittedly the deceased
Balasingam was the owner of the suit property, which is a house and land
situated in survey no.1/6, bearing plot no.47 in Sri Balaji Nagar, Alwar
Thirunagar, Valasaravakkam, Chennai 87 to an extent of 2418 sq.ft.
Mr.Balasingam purchased the property from Muniammal, which is evidenced
by Ex.A1 sale deed 05.02.1981. The copy of the same is marked as Ex.B.6.
He got the permission from the Valasarvakkam Town Panchayat for
constructing the building in the suit property, which is evidenced by document
Ex.A.12 proceedings of the Executive Officer dated 25.01.1982. Further
evidence reveals that the Balasingam availed housing loan by executing a
mortgage deed dated 08.04.1982, which is evidenced by Ex.A.13.
Subsequently, he died on 06.03.1985, which is evidenced by death extract
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Ex.A.2.
22. The evidence reveals that the parties are Christians. Deceased
Mr.Balasingam was survived with his wife Mrs.Manickavalli Suseela and
Mrs.Mary Subha Ratna. Though the first defendant is projected as widow of
deceased Balasingam, it is not supported by any evidence or materials on
records. The order copy of the Succession O.P.No.30 of 2010, Ex.A8 revealed
that Manickavalli Suseela and her daughter Mrs.Mary Subha Ratna are the
legal heirs of deceased Mr.Balasingam and they were permitted to receive the
death benefit of deceased Mr.Balasingam from the Accountant General Office,
Chennai and they have also got certificate for family pension. Therefore, the
claim of the defendants that the first defendant Mrs.Hilda is the widow of
deceased Balasingam is not supported by any material evidence on record. The
Trial Court overlooked the fact and held that Mrs.Hilda is the second wife of
deceased Balasingam and her son and daughter are illegitimate children of
deceased Balasingam and they have also got certificate for family pension and
they are entitled for share in the suit property is legally unsustainable in view
of the fact that the parties being a Christian, they are governed by the Indian
Succession Act. In the Indian Succession Act, illegitimate children never
recognised for a share of a deceased Christian and second marriage is also not
recognised. Therefore, the finding of the Trial Court that the vendors of the
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plaintiffs are not absolute owners of the entire suit property, since Mrs.Hilda,
second wife of mr.Balasingam has the son and daughter, they being the
illegitimate children had share over the properties, are unsustainable in law
since the parties are governed by Indian Succession Act as Christian. In view
of the above, finding of the Trial Court is against the evidence on record and
on fact and on law. Therefore, liable to be set aside and the point no.3 is
answered in favour of the plaintiffs.
On perusal of the records, further reveal that the plaintiffs' vendor i.e.
Manickavalli Suseela and Mrs.Mary Subha Reddy, after paying housing loan
availed by the deceased Balasingam, got a re-conveyance from the Tamilnadu
Housing Board. This fact is revealed by the Ex.A.3(Ex.B.7). Further evidence
reveals that Mrs.Manickavalli Suseela had executed a general power of
attorney dated 21.04.2008 and thereby nominating her daughter Mrs.Mary
Subha Ratna as her power agent to deal with the property. On 25.04.2008,
she entered into a sale agreement with one Gopi to sell the property, which is
evidenced by Ex.A.5. Subsequently, it was cancelled by a cancellation deed
18.09.2008 evidenced by Ex.A.6. Further the revenue document, viz.,patta for
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the suit property stands in the name of Manickavalli Suseela and her daughter
Mrs. Mary Subha Ratna, which is evidenced by Ex.A.9 and permission for
demolition of old super structure in the suit property was obtained by the
plaintiffs' vendor in the name of Mrs.Mary Subha Ratna. It is evidenced by
Ex.A.11. It reveals that the suit property has been dealt with by the plaintiffs'
vendor. The plaintiffs purchased the property by way of sale deed dated
18.09.2008, which is evidenced by Ex.A.7. It reveals the plaintiffs' valid title
over the plaint schedule properties.
24. The contention of the defendants that the first defendant Mrs.Hilda is
the widow of deceased Balasingam and she entered into sale agreement with
respect to the suit property with the second defendant is not supported by any
material evidence on records. This contention in the written statement is only a
bald allegation and they did not mention the date of sale agreement. They not
even mentioned with whom, he entered into the sale agreement and paragraph
7 of the written statement is reproduced here for better appreciation:-
" 7. The 2nd defendant's husband entered into a sale
agreement in respect of the suit property agreeing to
convey the suit property. In pursuant thereto, possession
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was delivered to the 2nd defendant, the mother of the 2nd
defendant and ratified by the 1st defendant. "
25. This contention is not proved by the defendants. Further on perusal
of the records, it reveals that the defendants relied upon the settlement deed
dated 19.09.2008 executed in favour of R.Sivabalan(Ex.B.14) . On perusal of
the contention of the settlement deed dated 19.09.2008(Ex.B.14), in which, it is
stated that settlor had purchased the suit property by way of document no.4 of
1991 dated 03.01.1991, Ex.B.13. On perusal of Ex.B.13, it reveals that it is
only a General Power of Attorney executed by Hilda. Therefore, the
contention in the settlement deed, Ex.B.14 that settlor has purchased the
property from Hilda is erroneous one. Though the defendants are in
possession, they failed to prove a better title than the plaintiffs over the plaint
schedule property. Under these circumstances, the plaintiffs are entitled for
declaration of title over the plaint schedule property. The Trial Court
overlooked the facts and failed to considered the documents filed by the parties
properly and therefore, the findings of the trial Court in this regard is liable to
be setaside.
26. Now, considering whether the suit is barred by limitation and
recovery of possession. Admittedly there is no evidence on record as to when
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the defendants came into possession. Article 65 of the limitation Act prescribes
the period of limitation for possession of immovable property or any interest
therein based on title as 12 years and the period begins to run when the
possession of the defendant become adverse to the plaintiff. In this case, there
is no clear evidence on record to show when the defendants 2 and 3 came into
possession. Under these circumstances, I find that the suit is not barred by
limitation and for recovery of possession of immovable property based on
title. Accordingly, the plaintiffs are entitled for declaration of title over the
plaint schedule property and entitled for recovery of possession and not
entitled for mesne profit in the absence of any specific evidence for income
from the property and the suit is not barred by limitation.
27. The finding of the Trial Court that the vendors of the plaintiffs are
not absolute owners of the entire suit property. Since Mrs.Hilda, second wife
of mr.Balasingam has the son and daughter, they being the illegitimate children
had share over the properties, are unsustainable in law since the parties are
governed by Indian Succession Act as Christian. In view of the above, finding
of the Trial Court is against the evidence on record and on fact and on law.
Therefore, liable to be set aside.
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28. In the result, the judgment and decree of the Trial Court is hereby
setaside and the appeal is allowed with cost. With regard to the prayer for
mesne profit, the suit is dismissed. The plaintiffs are entitled for declaration of
title over the plaint schedule and they are entitled for possession. The
defendants are directed to hand over the possession within 3 months.
04.03.2025
Index : Yes / No
Speaking order: Yes/No
mrp
To
1. The III Additional District Court, Thiruvallur @ Poonamallee.
2. The Section Officer, VR Section High Court, Madras.
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K.KALYANASUNDARAM, J.
and
V.SIVAGNANAM, J.
mrp
Pre-delivery judgment made
in
04.03.2025
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