Ethirajulu (died) v. Chokalingam

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 23.12.2009CoramTHE HONOURABLE MR.JUSTICE M.JEYAPAULS.A.No.508 of 19971.Ethirajulu (died)...1st Appellant/Plaintiff2.Gunammal @ Gunabooshnam Ammal3.K.Dhanalakshmi4.E.Radhakrishnan5.E.Babu6.E.Selvi ... Appellants 2 to 6 (Appellants 2 to 6 brought on record as legal representative of the deceased sole appellant vide order of Court dated 30.07.2003 made in C.M.P.No.9172 of 1997)Vs.1.Chokalingam2.Tulasi Ammal (Deceased)3.Mohan4.Viswanathan5.Dhanalakshmi6.Padmavathi 7.Mallika ... Respondents 1 to 6/Defendants 2 to 7 (R7 brought on record as legal representatives of the deceased second respondent and R3 recorded as legal representatives of the deceased second respondent vide order of Court dated 29.10.2009 made in C.M.P.Nos.3116 and 3117 of 2007 in S.A.No.508 of 1997) Second Appeal filed under Section 100 of Civil Procedure Codeof against the Judgment and Decree dated 29.11.1996 in A.S.No.42 of1994 on the file of Sub Court, Tiruvallur confirming the Decree andJudgment dated 20.09.1994 in O.S.No.156 of 1983 on the file ofDistrict Munsif, Ponneri. For Appellants : Mr.R.Subramania IyerFor Respondents : Mr.N.R.Gopalan for R.Munuswamy https://hcservices.ecourts.gov.in/hcservices/ JUDGMENTThe plaintiff who was non-suited before both the Courts belowhave preferred the present appeal.2.The suit was filed for declaration of title with respectto the 'A' Schedule property and for recovery of possession of the'B' and 'C' Schedule properties which formed part of the 'A'Schedule property from the defendants.3.The plaintiff has contended that the suit 'A' Scheduleproperty originally belonged to Thayarammal, the grand mother ofthe first plaintiff. She executed a settlement deed dated19.08.1948 creating a life estate in favour of daughterSundarammal, the mother of the plaintiff and vesting remainder infavour of the plaintiff in respect of the suit 'A' Scheduleproperty. The plaintiff has become the absolute owner of the suitproperty, after the demise of his mother Sundarammal. The first andthird defendants are the elder sisters of the plaintiff. The secondand fourth defendants are the sons of the first and thirddefendants respectively. The defendants came to occupy 'B' and 'C'Schedule properties with the leave and licence granted by theplaintiff and his mother Sundarammal. Alleging that the defendantsdid not positively respond to the demand made by the plaintiff toeffect the 'B' and 'C' Schedule property, the plaintiff has soughtfor the aforesaid reliefs. 4.The written statement filed by the first defendant wasadopted by the second defendant. He has contended that Thayarammalgave the suit property to her daughter Sundarammal by virtue of thedeed dated 19.08.1948 as a Sridhana. The first defendant isentitled to one-third share in the Sridhana property ofSundarammal, after her demise in the year 1979. The first defendantdenies the allegation that she came to occupy the suit property onthe basis of leave and licence granted by the plaintiff and hermother Sundarammal. It is contended that the first defendant hasbeen in possession and enjoyment of the suit property ever sinceher marriage. The first defendant is in possession of a portion ofthe suit property in her capacity as co-owner, having put a hutover there. She also perfected title by adverse possession of 15cents in her possession, she claims.5.The third defendant in her written statement hascontended that the suit property was given as a Sridhana toSundarammal by her mother. She claimed that she has been inpossession and enjoyment of a portion of the suit property for somedecades. She also claimed one-third share in the suit property andhas contended that she had perfected title to a portion of the suitproperty in her possession by adverse possession.6.The trial Court returned a finding that the disputeddocument Ex.A1 is only a Sridhana deed and therefore Sundarammalbecame the absolute owner of the suit property. The latter clausefound in the said document giving absolute right to the plaintiff https://hcservices.ecourts.gov.in/hcservices/ is found to be in direct conflict with the earlier clause andtherefore the same has to be ignored. The trial Court ultimatelydecided that the plaintiff, D1 and D3 are each entitled to one-third share in the suit 'A' Schedule property.7.In the appeal preferred by the plaintiff, the firstappellate Court returned a finding that though the plaintiff'smother was not given absolute right under the document under Ex.A1,by virtue of the operation of Section 14 (1) of the HinduSuccession Act, the limited estate given under Ex.A1 to Sundarammalblossomed into absolute right. By and large, the Judgment of thetrial Court was confirmed by the first appellate Court.8.At the time of the admission of the second appeal thefollowing substantial questions of law were formulated fordetermination:1. Whether the dis-position of theproperty through Ex.A1 – Sridhana Deed hadconferred any pre-existing right on the motherof the plaintiff so as to attract Section 14(1) of the Hindu Succession Act or Ex.A1 ispurely a gift deed which conferred a right onthe mother of the plaintiff for the first timein order to attract Section 14 (2) of the HinduSuccession Act.2. Whether the construction of Ex.A1Sridhana Deed confers any absolute right in itsearlier portion since the words written inthose portion were distinguished by subsequentconferment of absolute right to the plaintiffin the form of vested remainder.3. Whether Ex.A1 confers only a limitedestate to the mother of the plaintiff.9.The plaintiff would claim that the plaintiff was givenabsolute right and title over the suit property by the settlorThayarammal and only life interest in the form of Sridhana wasgiven to Sundarammal, the daughter of Thayarammal. Per contra, thedefendants would claim that the suit property was given as Sridhanato Sundarammal. Therefore, the plaintiff has got no absolute rightor title over the suit property.10.The learned counsel appearing for the plaintiff/appellantwould submit that Ex.A1 appears to be a Will executed byThayarammal giving life estate to Sundarammal and vesting theremainder on the plaintiff. He would submit that at any rate aharmonious reading of Ex.A1 would go to establish that Thayarammalthe executant under Ex.A1 had given the absolute right and titleover the suit property only to the plaintiff Ethirajulu. The latterclause found in Ex.A1 cannot be violently dissected from the formerclause to give a different meaning to the former clause found https://hcservices.ecourts.gov.in/hcservices/ therein. Even otherwise a right has been conferred under Ex.A1 toSundarammal for the first time. It does not speak about the pre-existing right of Sundarammal. As the pre-existing right ofSundarammal was not dealt under Ex.A1 and it was only for the firsttime the right has been created under Ex.A1, Section 14 (1) of theHindu Succession Act will have no application, but Section 14 (2)alone will have application to the facts and circumstances of thiscase. At any rate he would submit that the rival parties havecontended differently as to the nature of the document Ex.A1. It isthe duty of the Court to interpret the document Ex.A1 irrespectiveof the nomenclature assigned to the said document. Therefore, hewould submit that the Courts below have completely erred and as aresult of which a perverse finding have been rendered in this caseby both the Courts below.11.The learned counsel appearing for the respondents wouldsubmit that the theory of permissive occupation projected by theplaintiff has not been established by them. The documents producedon the side of the defendants would go to show that they have beenin possession and enjoyment of the suit property right from theyear 1967. No explanation was forthcoming from the plaintiff as tohow the defendants got into possession of part of the property wayback in the year 1967 itself. Describing Ex.A1 as a gift deed, thelearned counsel appearing for the defendants would submit that theabsolute right had been given to Sundarammal by Thayarammal underEx.A1 as per the initial clause found thereunder. A contradictorydisposition found in the latter clause will have to be ignored bythe Court of law. Referring to the memorandum of appeal, thelearned counsel appearing for the defendants would submit that theplaintiff completely forgetting the fact that the executant ofEx.A1 had not provided any clause thereunder to give effect to thedocument Ex.A1 after the demise of Thayarammal, projected a casethat Ex.A1 is a Will. Therefore, he would submit that both theCourts below have rightly determined properly interpreting Ex.A1that absolute right was given by Thayarammal only to Sundarammal,her daughter and not to Ethirajulu, the plaintiff herein who is hergrandson.12.Firstly, this Court will have to find whether the Courtsbelow have correctly interpreted the document Ex.A1. Ex.A1 has beendescribed as a Sridhana deed. Thayarammal having specificallyadverted to the fact that she had no male descendant had given thesuit property as Sridhana only for her life time. Even in the firstclause she had not provided that Sundarammal should have absoluteright and title over the suit property. Her intention to give thesuit property as Sridhana for the life time of Sundarammal has beenexpressed in the first clause found under Ex.A1. Even at the verybeginning she had been confronted with the unpleasant situationthat she had no male descendant while executing Ex.A1. The latterportion of Ex.A1 would clearly show that she had given vent to theaforesaid confrontation that she encountered on account of lack ofmale descendant. In a very unambiguous terms she has categoricallystated that she gives the absolute right and title over theproperty only to Ethirajulu, the plaintiff herein who happened to https://hcservices.ecourts.gov.in/hcservices/ be the son of her daughter Sundarammal. She had infact directed himto do all the obsequies on her demise. While giving absolute rightto the plaintiff after reserving life estate to her daughterSundarammal, Thayarammal mandated her daughter Sundarammal not toencumber the suit property either by executing mortgage or byalienating the property.13.As rightly pointed out by the learned counsel appearingfor the plaintiff, a harmonious reading will have to be given toEx.A1. A part of the deed cannot be dissected violently to give adifferent meaning. If we read the entire document in a harmoniousmanner, the only conclusion we can arrive at is that Thayarammalmeant to give only life estate to her daughter Sundarammal andabsolute right over the suit property to her grand son Ethirajulu,the plaintiff herein. On a careful reading of Ex.A1, I find thatthere is no conflicting provisions found under Ex.A1. Ex.A1 hasbeen very carefully drafted in such a way that the possession andenjoyment of the suit property as Sridhana till the life time ofSundarammal was given to Sundarammal and the absolute right on thedemise of Sundarammal was given to Ethirajulu. In the Sridhanaclause found under Ex.A1 she has not stated therein that absoluteright has been given to her daughter Sundarammal. She hasspecifically stated that Sundarammal shall enjoy the property whichwas given as Sridhana. While dealing with the absolute right givento her grandson, she has quite categorically stated that he shouldhave the property absolutely for generation with all rights andtitle attendant to it.14.The learned counsel appearing for the plaintiff cited thedecision of the Supreme Court in Ramkishorelal and another Vs.Kamalnarayan AIR 1963 SC 890 it appears the very same decision wascited by the other side before the Courts below. It is useful torefer to paragraph 12 of the aforesaid Judgment which reads asfollows:It is clear, however, that an attemptshould always be made to read the two parts ofthe document harmoniously, if possible; it isonly when this is not possible, e.g. Where anabsolute title is given in clear andunambiguous terms and the later provisionstrench on the same, that the later provisionshave to beheld to be void.The aforesaid ratio stresses the point that the intention of theparties to the instrument should be first ascertained by the Court.The words found in the document should be given first a naturalmeaning so as to ascertain the intention of the executant. It hasalso been stressed that the whole document should be adverted to bythe Court before giving interpretation to the document. By the wayit has been held that if the Court comes to a decision that thereis a clear conflict between one part of the document with theother, the latter conflicting clause found in the document shouldbe ignored. https://hcservices.ecourts.gov.in/hcservices/

15.On a careful perusal of Ex.A1, I have come to a decisionthat there is no conflicting clauses found in Ex.A1. The intentionof the executant is very clear that though she was pleased to giveSridhana right to her daughter till life time, she had intended togive absolute right and title to her grandson.16.The first appellate Court gained a wrong impression whileinterpreting the instrument of Ex.A1 that a pre-existing right wasdealt by Thayarammal under Ex.A1. Firstly, it is found thatThayarammal, the mother of Sundarammal makes some Sridhanaprovision for the first time under Ex.A1 to her daughter.Sundarammal, being the daughter of Thayarammal cannot have pre-existing right either of maintanence or of Sridhana right. If atall the husband of Sundarammmal had given limited right to his wifeSundarammal making provision for her maintenance, such a limitedright would blossom under the provision of 14 (1) of the HinduSuccession Act, into absolute right. The Sridhana right was for thefirst time created by mother in favour of her daughter under Ex.A1.Under such circumstances the provision under Section 14 (1) willhave no application and as rightly pointed out by the learnedcounsel appearing for the plaintiff Section 14 (2) alone will haveapplication. Section 14 (2) is found to be an exception to Section14 (1) which provides scope for a limited right to blossom intoabsolute right. Under the gift deed Ex.A1 it is found thatSundarammal has got right to enjoy the property till her life timefor the first time under Ex.A1. Such a right limited under Ex.A1would not get blossomed into absolute right as per the exceptionfound under Section 14 (2). It is held that the first appellateCourt was under the wrong impression that a pre-existing ofSundarammal was dealt under Ex.A1 to apply the provision underSection 14 (1) of the Hindu Succession Act.17.Admittedly, the first and third defendants have been inpossession and enjoyment of a portion of the suit property.Plaintiff would contend that they were inducted into possession onpermission given by the plaintiff and his mother about six yearsbefore filing of the suit, whereas the first and third defendantswould contend that they have been in possession and enjoyment ofthe property right from the date of their marriage. At any ratethey have produced document to show that they been in possessionand enjoyment of the property atleast from the year 1967.18.The first and third defendants claim right over the suitproperty only through their mother. Now it has been held that theirmother Sundarammal had no absolute right over the suit property andthat it is only the plaintiff who has got absolute right over thesuit property. It is true that the plaintiff have not produced anyconvincing evidence to establish that the plaintiff and his motherlet the first and third defendants into possession of a portion ofthe suit property on leave and licence basis. The plaintiff mightnot have established that the first and third defendants were https://hcservices.ecourts.gov.in/hcservices/ inducted on a leave and licence basis. After all, the first andthird defendants are not strangers to the plaintiff. The plaintiffis none other than the brother of the first and third defendantsand Sundarammal is their mother. It is quite natural for the familymembers to continue to occupy the property of the other familymembers. Claiming that their mother is the absolute owner of thesuit property, it appears that they continue to posses a part ofthe suit property.19.At best, the first and third defendants may claim adversepossession, but in this case it is found that the first and thirddefendants have categorically taken up a stand that they startedenjoying the suit property in their capacity as co-owner. The co-owner cannot set up a plea of adverse possession. Here is the casewhere the defendants set up a plea that they are entitled to one-third share in the suit property. Such being the contention, theycannot validly set up a plea for adverse possession.20.It is found that the Courts below have completely failedto find that the executant infact intended to give the property tohis daughter only for her life time and absolute right over thesuit property to the plaintiff. The Courts below have failed toread the document in its entirety to know what actually wasintended by the executant. The Courts below had not sat in the armchair of the executant to pierce through her intention whileexecuting the document Ex.A1.21.No absolute right was created in favour of Sundarammal inthe first portion of the document. The clause relating toconferment of absolute right has occurred only in the latterportion of the document Ex.A1. Therefore, Section 11 of theTransfer of Property Act, will have no application to the facts andcircumstances of this case. This Court has already held that theexecption provided under Section 14(2) of the Hindu Succession Act,would squarely apply to gift deed executed by Thayarammal underEx.A1, inasmuch as no pre-existing right of Sundarammal was dealtby Thayarammal under Ex.A1. As far as the applicability of theprovision under Section 88 of the Indian Succession Act, it is heldthat the aforesaid provision of law will not apply to the presentcase inasmuch as it has been categorically held by this Court thatEx.A1 is only a gift deed and not a Will. 22.In view of the above facts and circumstances theJudgments of the Courts below are set aside and the appeal isallowed granting a decree for declaration of title with respect to'A' Schedule property and recovery of possession with respect of'B' and 'C' Schedule properties to the plaintiff. The first andthird defendants and their legal representatives are directed todeliver possession of 'B' and 'C' Schedule properties to the https://hcservices.ecourts.gov.in/hcservices/ plaintiff within two months from the date of receipt of thisJudgment. Considering the relationship of the parties each party isdirected to bear the costs.Sd/-Asst. Registrar//true copy//Sub Asst.RegistrarpsTo1. The Sub Judge, Tiruvallur.2.The District Munsif,Ponneri.3.The Section Officer, V.R.Section, High Court, Madras.1 cc to Mr.R.Muniswamy, Advocate, Sr.No.718171 cc to Mr.R.Subramanian, Advocate, Sr.No.716601 cc to Mr.N.R.Anantharamakrishnan, Advocate, Sr.No.71329S.A.No.508 of 1997SSN {CO}TP/2.2.2010.