The defendants in the suit are the appellants before this Court. This appeal is directed against the reversing judgment of the first appellate Court in the suit filed for declaration, title and possession. Whiel the trial Court dismissed the suit, the first appeal was allowed and the suit was decreed by the first appellate Court.
2. The parties are described as per their rank and status shown in the original suit.
3. The brief facts leading to the second appeal are as follows: As per plaint, the plaintiff has purchased the suit property on 28.08.1962 from one T.R.Rajaraman and he is in possession and enjoyment of the same. While so, the defendants are trying to tresspass in to the suit property and claiming right over the suit property. The second defendant is brother of the plaintiff's vendor. The plaintiff permitted the second defendant to celebrate his daughter's marriage in the suit property. Taking advantage of that, he is claiming right over the suit property. Hence, the suit for declaration, title and possession.
4. The suit was contested by the defendants on the ground that the vendor of the plaintiff has no right to alienate the property. The suit property was allotted to the plaintiff's vendor in the partition deed executed on 16.10.1953. In the said partition deed, the suit property has to be enjoyed by the mother of the plaintiff's vendor Ramalakshmi Ammal till her life time and only after her death, the property will devolve upon the plaintiff's vendor. In the said partition deed, a pre-emptive right of purchase is given to the co-sharers. If any one of the co-sharers wants to alienate the property, the pre-emptive right is vests with the co-sharers. Contrary to this condition, during the life time of his mother Ramalakshmi ammal, the vendor of the plaintiff has executed the sale deed without offering it to the co-sharer, therefore the sale is non est in law. The plaintiff had never been in possession of the property. Till the lifetime of Ramalakshmi ammal i.e. 25.12.1976, the suit property was occupied by the vendor's mother Ramalakshmi ammal and thereafter, by the defendants. On the similar line, the second defendant has also filed written statement claiming adverse possession.
5. The trial Court, on the basis of the pleadings made by either side, has framed the following issues:-
“(1)Whether the pslaintiff has got subsisting title to the suit properties?
(2) Whether the plaintiff has acquired any title to the properties by virtue of sale deed dated 28.08.1962 contrary to the terms and conditions imposed in the partition deed dated 16.10.53?
(3) Whether the plaintiff is in possession of the suit property?
(4) Whether the defendnt is in possession of the suit property with the consent of the plaintiffs?
(5) Whether the husband of the defendant is necessary party?
(6) Whether the plaintiff is entitled to declaration and injunction?
(7) To what relief?
Additional issued were framed on 25.06.1985:
(8) Whether the plaintiff was in possession of the suit property on the date of the suit?
(9) Whether the plaintiff is entitled to claim relief against the 2nd defendant? Whether the reliefs are barred by limitation?
(10) Whether the 2nd defendant has acquired title by adverse possession?
6. The trial Court on considering the pleadings of the parties and Exs.A1 to A31, Exs.B1 to B7, PW1 and PW2 and DW1 and DW2, held that the pre-emptive right given in Ex.B2 has been waived by the other co-sharers by alienating their shares without giving the option of pre-emptive purchase to the other co-sharers. However, held that the vendor Rajaraman had no right to alienate the property during his mother's lifetime, so, the sale deed-Ex.A1 is non est in law. After considering the evidence let in by the plaintiff, the trial Court has observed that though the plaintiff has paid tax to the suit property, there is no evidence to show that he was in possession of the property. It is an admitted fact that the vendor's mother Ramalakshmi ammal was in possession of the property till her life time i.e. on 25.12.1976 and thereafter, in occupation of the first defendant. Therefore, the trial Court held that the defendants have perfected title by adverse possession and dismissed the suit.
7. Aggrieved by that judgment, the plaintifff preferred the first appeal in A.S.No.2 of 1986 wherein, the first appellate Court has framed the following points for determination:-
(1) Whether the plaintiff has got title to the suit property?
(2) Whether the defendant has acquired tilte to the suit property by adverse possession?
(3) Whether the plaintiffs are entitled to declaration and possession?
8. The first appellate Court on considering the oral and documentary evidence and also taking note of the submissions made by either side, held that till the death of Ramalakhsmi ammal, the question of adverse possession does not arise and the suit is filed within 12 years from the date of death of Ramalakshmi ammal. Therefore, the limitation for adverse possession starts only from the date of death of Ramalakshmi ammal. So, it cannot be said that the second defendant acquired title by adverse possession. It was further held by the first appellate Court that under the partition deed Ex.B2, the suit property was allotted to the plaintiff's vendor Rajaraman and only the enjoyment was deferred till the death of Ramalakshmi ammal. Therefore, the sale deed made by Rajaraman in favour of the plaintiff's vendor is valid in law. Hence, the first appellant Court set aside the judgment of the trial Court and allowed the appeal. Thereby the suit for declaration and possession was decreed as prayed for. Aggrieved by the reversing judgment, the defendants have preferrred the second appeal.
9. At the time of admission, this Court has formulated the following Substantial Questions of law for consideration:-
(1) Whether the legal plea relating to Section 14(1) of the Hindu Succession Act, 1956 must have been gone into on merits by the lower Appellate Court even in the absence of pleading to that effect in the suit?
(2) Whether the lower appellate Court ought to have held that Section 14(1) of the Hindu Succession Act applies to the facts of the case in the light of Exhibit.B2 partition deed which made provision in the property in lieu of her pre existing right to maintenance which enlarged itself to an absolute estate under Section 14(1)?
(3) Whether the lower Appellate Court erred in not framing any point for consideration on the right of pre emption given under Ex.B2?
10. The learned counsel appearing for the appellants/defendants submitted that under the partition deed-Ex.B2, dated 16.10.53 the mother of the plaintiff's vendor was given life interest. After the Hindu Succession Act, 1956 under Section 14(1), the limited interest of Ramalakshmi ammal has enlarged in to an absolute interest. Therefore, the vendor of the plaintiff had no title over the property at the time of alienation under Ex.A1 dated 28.08.1962. When this point was canvassed before the first appellate Court, the first appellate Court earlier agreed and remanded the matter for fresh consideration and permitted the parties to raise additional plea and evidence. However, against the said remand order, the defendants have preferrred an appeal in A.A.O.No.711 of 1987 before this Court and this Court has allowed the appeal with the observation that the first appellate Court has suo moto directed the parties to file additional pleading, which is not in accordance with the provision of under Order 41, Rule 23 of the Civil Procedure Code. So, the order of remand is liable to be set aside and remitted back the matter to the first appellate Court to decide the appeal on the basis of the available pleadings and evidence.
11. When this point was later agitated before the first appellate Court, the first appellate Court held that in the absence of specific pleadings, it is not open to the respondents now to raise the contention that the rights of Ramalakshmi Ammal restricted under Ex.B2 is enlarged into absolute interest, as per Section 14(1) of the Hindu Succession Act, 1956.
12. The learned counsel submitted that since the application of Section 14(1) of the Hindu Succession Act, 1956 or otherwise is purely a substantial question of law, it can be agitated at any point of time. The suit property being the joint family property, it got divided as per Ex.B2 dated 16.10.1953. After advent the Hindu Succession Act, 1956, the limited interest of woman for life in lieu of her maintenance gets enlarged under Section 14(1) of the Hindu Succession Act, 1956. The first appellate Court while discussing the point, declined to look further for want of pleadings, thus, the first appellate Court erred in not appreciating the vital point for determination.
13. To support of his contention, the learned counsel appearing for the appellants/defendants relied upon the judgment of the Hon'ble Supreme Court in Dr.Mahesh Chand Sharma vs. Raj kumari Sharma(Smt) and others reported in (1996) 8 SCC 128 wherein it is held in para 29, which reads as under:-
“29......Learned counsel submitted that neither in the plaint nor at at any time during the arugments in the Courts below was this contention urged by the plaintiff. Counsel also submitted that had the plaintiff raised this contention in the plaint, the defendant- appellant would have had an opportunity of establishing that Section 14 has no application for the reason that she was not 'possessed' of the said first floor on the date of coming into force of the Act. Counsel submitted that Satyawati was never living in the first floor; she was either living with the first defendant or with other relatives. We have given our anxious consideration to the said submission but are unable to agree with it. In the plaint, it is repeatedly stated that the plaintiff is claiming the suit property both through Ram Nath and Satyawati. It is true that there is no specific reference to Section 14 of the Hindu Succession Act, but we are of the opinion, having regard to the law applicable to pleadings (Order 6 Rule 2 of the Civil Procedure Code) and the decisions of this Court in that behalf – (see Kedar Lal Seal v. Hari Lal Seal) that it would not be just and property not to give effect to the said highly salutary provision on the above ground which, in the facts and circumstancs of the case, is a mere technicality. Section 14 operates on its own force once the facts requisite for attracting its application are established ”
14. Further, the learned counsel appearing for the appellants/defendants relied upon the judgment of the Hon'ble Supreme Court in Mangat Mal (dead) and another v.Smt. Punni Devi (dead) and others reported in AIR 1996 SC 172, wherein para 10 reads as under:-
“10. In the leading case on the subject of Section 14, V.Tulasamma and Ors. v. V.Sesha Reddi (dead) by LRs, it was held that under the Sastric Hindu Law, a Hindu widow had a right to be maintained out of joint family property and this right ripened into a charge if the widow took the necessary steps for having her maintenance ascertained and specifically charged on the joint family property. Even if no specific charge were created, this right was enforceable against joint family property in the hands of a volunteer or a purchaser taking it with notice of her claim. When Specific property was allotted to the widow in lieu of her claim for maintenance, the allotment was in satisfaction of her right to be maintained out of the joint family property. It was not a grant for the first time without any pre-existing right in the widow. The widow got the property by virtue of her pre-existing right, the instrument giving the property being merely a document effectuating such pre- existing right. Section 14(1) was large in its amplitude and covered every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance. Where such property was possessed by her at the date of commencement of the Act, she became its full owner. The words "any property" were large enough to cover any and every kind of property but in order to expend the reach and ambit of the Section and make it all comprehensive the Explanation thereto had been enacted. Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by Section 14(1). The object of the Legislature was to wipe out the disabilities from which a Hindu woman suffered in regard to the ownership of property under the old Sastric Law and to recognise her status as an independent and absolute owner of property. Sub-section (2) of Section 14 was in the nature of a proviso to Sub-section (1). It had to be read in the context of Sub-section (1) to leave as large a scope for the operation of Sub-section (1) as possible. So read, sub- section (2) had to be confined to cases where property was acquired by a Hindu woman without any pre-existing right for the first time under a gift, will, instrument, decree, order or award, the terms of which prescribed a restricted estate in the property. Where property was acquired by a Hindu woman in lieu of her right to maintenance it was by virtue of a pre-existing right and such acquisition was not within the scope and ambit of Sub-section (2) even if the instrument allotting the property prescribed a restricted estate in it. Where property was acquired by a Hindu woman under an instrument by virtue of a pre-existing right to maintenance and, under the law as it stood prior to the enactment of the Act, she would have had no more than a limited interest in the property, a provision in the instrument giving her limited interest in the property was merely by way of recognition of the legal position as it existing and the restriction on her interest, being a disability imposed by law, was wiped out and her limited interest enlarged under Sub-section (1).”
15. Per contra, the learned counsel appearing for the respondents/plaintiff submitted that under Ex.B2, Ramalakshmi ammal mother of the vendor was not assigned the limited interest in lieu of maintenance or arrears of maintenance, or by gift from any person or sridhana, but it was through the partition deed, where the right of residence given to her, which falls under Section 14(2) of the Hindu Succession Act, 1956 and not under Section 14(1) of the Hindu Succession Act, 1956.
16. Further, the learned counsel appearing for the respondents/plaintiff submitted that though the vendor of the plaintiff sold away his right to the plaintiff before the right vested on him and during the life time of his mother, but as soon as the demise of his mother, the defect in alienation cured by applying the rule of “feeding the estoppel”. Immediately, on the demise of Ramalakshmi ammal, the sale deed Ex.A1 became valid and the defendants have no right to claim over the property. In support of his submission, he referred the judgment of the Hon'ble Surpeme Court in C.Rameswaran & others v. N.Sambandam & others reported in CDJ 2009 MHC 711, wherein paras 19 and 20 read as follows:-
“19. Coming to the contention advanced on the strength of Sections 41 and 43 of the Transfer of Property Act, it is seen that while Section 41 is a deduction from the law of estoppel, Section 43 is based upon the doctrine of “feeding the estoppel”. Section 41 applies to cases where there is an ostensible owner, as against a real owner and such ostensible owner transfers the property with the express or implied consent of the real owner, for a consideration. In the case on hand, that question does not arise, since there is no ostensible owner and a real owner. The case on hand is one where the plaintiffs filed a suit seeking in the reliefs of declaration, mandatory injunction, permanent injunction and recovery of possession. The suit was dismissed after trial. Thereafter, the plaintiffs and one of the defendants who remained expaarte, sold the property to the present petitioners and the petitioners directed to file an appeal against the dismissal of the suit. Therefore, the necessary ingredients of Section 41 are not present in the case on hand, since there is no ostensible owner and a real owner.
20.In so far as Section 43 is concerned, it is based on the common law doctrine of “feeding the grant by estoppel”. It is a doctrine of equity, which treats that as done, which ought to be done. Even in the case on hand, Section 43 could have arisen for application, if the plaintiffs had filed an appeal against the dismissal of their suit and succeeded in getting a decree even after selling their property to the present petitioners. But the plaintiffs did not file an appeal against the dismissal of their suit. The suit filed by the plaintiffs in O.S.No.2549 of 1991, was dismissed by a judgment and decree dated 25.02.2004. The plaintiffs did not file an appeal against the said judgment. But, they sold the property in April 2006 to the present petitioners. Thus on the date of the sale, the plaintiffs' title to the property was only as found by the judgment. However, if the plaintiffs had filed an appeal and succeeded in getting a decree, even after the sale, the petitioners as purchasers, would have been entitled to the benefits of Section 43. But, unfortunately for the petitioners, their vendors viz., the plaintiffs allowed the decree to attain finality. Therefore, the occasion for invoking Section 43 has not arisen in this case.”
17. On cumulative reading of Section 14 of the Hindu Succession Act, 1956 and the judgment rendered in this case, it is clear that even if there is no pleading of enlargment of estate, as per the judgment of the Hon'ble Supreme Court rendered in Dr.Makesh Chandra Sharma v. Rajkumari Sharma(1996(8) SCC 128) cited supra, the Court is bound to look into the right of woman, in the light of Section 14 of the Hindu Succession Act, 1956. The spirit of Section 14(1) of the Hindu Succession Act, 1956 cannot be dampened by unpragmatic interpretation.
18. In this case, it is the admitted fact that the suit property was owned by T.R.Ramasubramania Iyer and on his death intestate, it devolved upon his wife and three sons. However, by virtue of the partition deed dated 16.10.1953, except in respect of the suit property, all other properties were divided among three sons. Ramalakshmi ammal, w/o Ramasubramania Iyer was only given life interest over the suit property being a residential house. Further, it is admitted by the plaintiff himself that Ramalakshmi ammal was in occupation of the suit property, till her life time. To attract Section 14(1) of the Hindu Succession Act, 1956, three essential conditions must exist viz., (1)The property must be possessed by Hindu Female; (2)The property possessed by her must have acquired and (3)She must have been limited owner thereof.
19. As seen from the evidence, Ramalakshmi ammal had an existing right over the property, and she also factually in possession of the property till her life time. Therefore, any partition, which has taken place prior to the enactment of the Hindu Succession Act, 1956, is subject to Section 14 of the Hindu Succession Act, 1956 and in this case, though there was no pleading, this point was canvassed before the first appellate Court and infact, the first appellate Court accepted the pleading and remanded the matter back to the trial Court for fresh consideration. Later, on intervention of this Court, on its appellate jurisdiction first appellate Court was prevented from entertaining additional plea and evidence on this point. Thus, in the appeal, the opportunity of canvassing the point was taken away by the order passed in A.A.O.No.711 of 1987, dated 13.12.1994. From the appellate Court judgment it could be seen that the first appellate Court while considering the applicability of Section 14 of the Hindu Succession Act, 1956, has restrained from discussing further in view of the order passed in A.A.O.No.711 of 1987 dated 13.12.1994.
20. Yet another error committed by the first appellate Court is that the continuous possession by Ramalakshmi ammal till her death and subsequently by the defendants has not been properly considered. While the trial court has held that the defendants have perfected the title by uninterrupted possession for more than 12 years, the first appellate Court has erred in computing the period of limitation, after the death of Ramalakshmi ammal i.e. 25.12.1976. Ignoring Ex.B1 dated 11.08.1964 where the animus of adverse possession against the plaintiff has been made known explicitly by the 2nd defendant.
21. In fact, the first appellate Court has referred Ex.B1 wherein the defendants have issued notice to the plaintiff alleging tresspass and destruction of the suit house property. Also, in Ex.B3 dated 20.10.1975 the plaintiff himself has admitted that the property is in possession and enjoyment of the defendants, even after his purchase in the year 1962. The plaintiff hs sought for vacant possession through Ex.B3 dated 20.10.1978. In that notice, the plaintiff has expressely admitted the possession of the defendants all through out even after his purchase of the suit property.
22. Despite these facts, the first appellate Court has reversed the trial Court judgment and has come to an erroneous conclusion that though the plaintiff has purchased the property in the year 1962 since Ramalakshmi Ammal had right of residents in the suit property till her life time, the possession of the defendants will not amount to adverse possession in the eye of law.
23. On cumulative assessment of the evidence of P.W.2, who admits in the cross examination that the suit property is in possession and enjoyment of the defendants and the own admission of the plaintiff in Ex.B3 legal notice as well as in Ex.B1 notice of the defendants alleging trespass against the plaintiff will show that the defendants are in possession of the suit property openly without any concealment and continuously. Even after the notice Ex.B1 dated 11.08.1964 the plaintiff has not taken any action for getting back the possession based on the sale deed till the date of suit on 09.09.1980.
24. The first appellate Court has observed that the plaintiff cannot get possession on the date of Ex.A1 and his right to get possession of the property is postponed till life time of Ramalakshmi ammal the mother of the vendor. This point which is stressed by the first appellate Court, in its judgment has no basis. There is no such recital found in Ex.A1. While so, the first appellate Court has erroneously held that the limitation for adverse possession should be reckoned only from the date of Ramalakshmi ammal demise and not prior to that. This is quite contrary to Article 65 of the Limitation Act. In this case, the knowledge of denial of the right of the plaintiff starts from the dated of Ex.B1, thus limitation for adverse possession should be reckoned from 11.08.1964. The plaintiff for 12 yerars has not sought for possession. After Ex.B1 dated 11.8.1964, the plaintiff has issued Ex.B3 only on 20.10.78. By that time itself, his right to seek possession of suit property has got extinguished. When the suit was presented on 09.09.1980, it was beyond the period of limitation as per Section 27 of the Limitation Act.
25. At this juncture, it is also relevant to point that enlargment of woman estate under Section 14 of the Hindu Succession Act, 1956 is not a question of fact as held by the first appellate Court. It is a mixed question of fact and law. In this case, admittdly, the suit property was owned by Ramasubramania Iyer and he died intestate leaving behind his wife and three sons. The partition deed-Ex.B2 came into existence in 1953 vesting the life interest on Ramalakshmi ammal being the wife of the Ramasubramaia Iyer. Ramalakshmi ammal on her own had an existing right over the suit property, being the residential house and admittedly she had been living in the suit house till her lifetime. Her existing right of enjoyment has been re-inforced and affirmed through the partition deed. By virtue of Section 14(1) of the Hindu Succession Act, 1956 her limited right of residents gets enlarged. The first appellate Court ought not to have rejected the claim of the appellant on the ground that there was no pleading to that effect.Accordingly, the substantial questions of law are answered in favour of the appellants/defendants
26. For the above said reasons, the judgment of the first appellate Court is liable to be interfered.
27. In the result, the Second appeal is allowed and the judgment of the trial Court in O.S.No.40 of 1983, dated 31.10.1985 is restored. No costs.
09.01.2017 Index:Yes/No Internet:Yes/No ari To
1. The Principal District Judge of Periyar District at Erode
2. The Subordiante Judge, Dharapuram.
Dr.G.JAYACHANDRAN,J.
ari Judgment made in S.A.No.21 of 1997 09.01.2017 http://www.judis.nic.in