Vasudevan v. M.Thirumudi2.M.Deenadayalan

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 14.06.2007CoramThe Hon’ble Mrs. Justice PRABHA SRIDEVANAppeal No.73 of 2007andM.P.Nos.1 and 2 of 2007Vasudevan..Appellant/Defendant.Vs1.M.Thirumudi2.M.Deenadayalan..Respondents/Plaintiff.Appeal preferred against the judgment and decree of the AdditionalDistrict Court, Pondicherry at Karaikal dated 31.08.2006 made in O.S.No.42of 2005.For Appellant .. Mr.K.Kannan for Mr.R.Sunil KumarFor Respondents.. Mr.AR.L.Sundaresan, Sr. Counsel for M/s.Sai, Bharath and IlanJUDGMENTWhen the applications for stay were stoutly objected to, the mainappeal is taken up for disposal, by consent.2.This appeal arises out of a suit for declaration that therespondents are life estate holders, entitled to be in possession and forrecovery of possession. The suit was decreed and the appeal is filed bythe sole defendant. The factual background of the case is as follows:There was one Sabapathy Nadar. He had three sons Narayanan, Arumugamand Muthusamy. Narayanan has no issues. He executed a Will on 16.06.1952,under which he bequeathed his properties to the sons of his two brothersArumugam and Muthusamy mentioned above for their life time, to be taken bytheir sons absolutely thereafter. Arumugam had two sons – Ayyenperumal andSrinivasan. Muthusamy had two sons – Thirumudi and Deenadayalan. These twoare the respondents herein, who have filed the suit. Ayyenperumal's sonVasudevan is the appellant. Earlier, Ayyenperumal, the father of the appellant filed a suit forpartition in O.S.No.11 of 1975 and also for a declaration that the clausein the Will prohibiting sale, mortgage and exchange is null and void. Thepreliminary decree for partition was granted and the clause prohibitingsale, mortgage or exchange was also declared as null and void. In thesuit, the respondents herein were defendants 2 and 3. The final decree https://hcservices.ecourts.gov.in/hcservices/ proceedings were initiated where the commissioner filed his report that itis not possible to divide the suit property by metes and bounds forpeaceful and convenient enjoyment of the parties. Thereafter, the propertywas brought to sale by public auction. The appellant herein purchased theproperty at the public auction. The second respondent herein obstructedthe execution proceedings and the appellant herein filed application forremoval of obstruction. This application was ordered by the learnedSubordinate Judge, Karaikal. These are all matters of record. The sons of the first respondent herein filed O.S.No.3 of 1977 for adeclaration that they and the other sons of the second respondent areentitled to possession. In O.S.No.3 of 1977, they have prayed forinjunction restraining the appellant herein from interfering with thepossession. The appellant resisted the suit by raising a preliminaryobjection of res judicata. This objection was ruled in favour of theappellant. Against that, appeal was filed, where the issue of res judicatawas held against the appellant and the matter was remanded to the trialCourt for a decision on merits. Thereafter, the suit was decreed. Theappeal filed by the appellant herein was also dismissed. Against that,S.A.No.1382 of 1987 was filed where it was contended by the appellantherein that the vested remainder holders viz., the sons of respondents 1and 2 are entitled to succeed to the suit house after the life time of thelast life estate holder and not before that. The sons of the respondentsherein claimed that they were entitled to be in possession right away asper the terms of the Will. It is relevant to note that the respondentsherein were party to the proceedings as well. Learned Judge held that the vested remainder holders can succeed tothe property only on the death of the life estate holder and that therecital in the Will that Ayyamperumal and his brothers have to enjoy thehouse till their life time along with their issues will not help the caseof the appellants to reach the conclusion that they are entitled to be injoint possession during the life time of the life estate holders and thejudgment and decree of the Courts below were modified to the extent thatthere will be a declaration in favour of the plaintiffs to the effectthat they are entitled to succeed to the suit house along with the othervested remainder holders, including the sixth defendant after the lifetime of the last life estate holder and the suit was decreed in respect ofthe declaration only as indicated above and dismissed in other respects.The sixth defendant/appellant shall not alienate, mortgage or encumber thesuit house in any manner and maintain the same as it is available atpresent, to be succeeded by all the vested remainder holders. It is ofcourse open to the sixth defendant/appellant to effect such repairs, ifabsolutely necessary to maintain the house in good order. This is, insubstance, the effect of the judgment in S.A.No.1382 of 1987.The observation in the second appeal appears to have emboldened therespondents herein to file a suit for declaration that they are lifeestate holders entitled to be in possession and enjoyment of the suitproperty. The trial Court came to the conclusion that the aboveobservations in second appeal would amount to declaration of the right ofthe life estate holders and decreed the suit. Aggrieved by this, thepresent appeal has been filed. https://hcservices.ecourts.gov.in/hcservices/

3.Learned counsel for the appellant submitted that the judgment in thesecond appeal is only in recognition of the right of the vested remainderholders viz., the sons of the respondents herein and that the judgment isnot to the effect that in spite of the Court auction purchase by theappellant, the respondents are entitled to a declaration that they shallbe in possession or to sue for recovery of possession. Learned counselsubmits that all the proceedings in the earlier suit in O.S.No.11 of 1975were in the presence of the respondents herein and they have taken part inthe execution proceedings and possession has been delivered and now theycannot try to revive a non-existing right. 4.Learned senior counsel for the respondents would submit that thesale in favour of the appellant is void since it is a transfer of theproperties hit by Section 6 of Transfer of Property Act. As per Section 6(d), all interest in property restricted in its enjoyment to the ownerpersonally cannot be transferred by him. For this purpose, learned counselrelied on Lachhmeshwar Vs. Moti Rani (AIR 1939 Privy Council 157).5.Neither the judgment in S.A.No.1382 of 1987 nor the above decisionnor Section 6 of the Transfer of Property Act will come to the aid of therespondents. Each of the life estate holders viz., the sons ofNarayanan's brothers were to take the life estate in the property equallyand for this purpose, the father of the appellant sued for partition andthere was a declaration of 1/4th share. The share that was declared by theCourt could have been only regarding the life estate, to which alone eachof the parties was entitled, and since this property, which was thesubject matter of the partition was, not capable of division, theproperty was brought to sale. The respondents herein were party to theproceedings through out. If they had any objections to the sale, that wasthe juncture when they could have raised their objection. The secondrespondent herein in fact raised obstructions and his obstruction wasdirected to be removed. This order has also become final. AIR 1939 PrivyCouncil 157 (cited supra) does not help the respondents. In that case, theparty who was granted the life interest, was granted a right to remain inpossession of the house and to take the rents. That was the right whichwas transferred in that case and it is in these circumstances, the PrivyCouncil held that right cannot be alienated. In fact, the devise underwhich the restricted interest holder derived her right to remain inpossession also restricted her right to sell or otherwise alienate theproperty. That cannot help the respondents herein. 6.The respondents are life estate holders, which life estate has beensold not by way of voluntary transfer, but by the Court auction sale towhich they were party to and which proceedings have become final withoutany challenge thereto. They cannot now claim that they are entitled to bein possession. In the judgment in the earlier second appeal, the sons ofthe respondents herein claimed that they were entitled to be in possessionand this claim was not countenanced by this Court. Their right waspostponed till the death of the last life estate holder. The reason whythis court did not accept the vested remainder holders' claim forpossession was because the right of the life estate holders to remain inpossession had been purchased by the appellant herein in Court auction andtherefore, this right he continues to have until the death of the lastlife estate holder, the life estate rights having been transferred to the https://hcservices.ecourts.gov.in/hcservices/ appellant herein under the Court auction. The vested remainders were toldthat they cannot claim to be in possession. Therefore, the reason forrejecting their claim to be in possession is only because the appellanthad purchased that property. Therefore, the judgment in the second appealin no way states that the life estate holders right still remainsuntouched for the respondents to make a claim afresh after nearly thirtyyears. The respondents herein are no doubt the life estate holders underthe Will of Narayanan but their interest has been purchased by theappellant. They are not entitled to be in possession and they are notentitled to recovery of possession. The appeal is therefore allowed andthe judgment and decree of the trial Court are set aside. No costs.Consequently, connected M.Ps are closed.Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.mmiTo1. The Additional District Court, Pondicherry at Karaikal. 2. The Record Keeper, VR Section, High Court, Madras.+ 1 CC To Mr.R.Sunil Kumar, Advocate SR NO.34791+ 1 CC To M/s.Sai, Bharath and Ilan, Advocate SR NO.34668Appeal No.73 of 2007sp[co]gp/20.7.