Aggrieved by the judgment and decree dated 31.01.2011 made in A.S.No.39 of 2010 on the file of the Subordinate Judge, Sathyamangalam, reversing the judgment and decree dated 06.02.2009 made in O.S.No.180 of 2006 on the file of the District Munsif Court, Sathyamangalam, the minor plaintiffs, represented by their mother, are before this Court by way of the present Second Appeal.
2. The case of the minor plaintiffs before the Trial Court is that they are the children of the 2nd defendant, viz. Kalappa, son of one Lingappa through his first wife Minnammal. Since Lingappa's second wife, Mahadevamma did not have any issues, she executed a Settlement Deed dated 04.06.1981 in favour of Kalappa entitling him to enjoy the suit property throughout his lifetime without creating encumbrance over the same and that the suit property shall devolve upon the children of Kalappa. The grievance of the plaintiffs before the Trial Court is that their father Kalappa, without adhering to the conditions stipulated in the Settlement Deed, marked as Ex.A3, sold the suit property to one Chinnasami, the 1st defendant, on 02.07.1985 and the said Chinnasami is in possession and enjoyment of the suit property. Hence, the minor plaintiffs, represented by their mother, filed a suit in O.S.No.180 of 2006 seeking a decree of declaration and possessory reliefs.
3. The Trial Court, on examining the entire oral and documentary evidence, by a judgment dated 06.02.2009, decreed the suit in favour of the plaintiffs. Aggrieved by the same, the 1st defendant, Chinnasami, the purchaser of the suit property, filed A.S.No.39 of 2010 before the Subordinate Court, Sathyamangalam and the First Appellate Court by a judgment dated 06.02.2009, reversed the finding of the Trial Court holding that the suit is premature and that only after the demise of the 2nd defendant/Kalappa, the plaintiffs, i.e. his children have got right over the suit property. Aggrieved by the said finding, the plaintiffs have approached this Court.
4. The substantial question of law that arises for consideration in this appeal is:
Whether the First Appellate Court was right in holding that the suit is pre-mature, when the 2nd respondent/2nd defendant has no right to convey the suit property in favour of the 1st respondent/1st defendant, in the light of Ex.A3-Settlement Deed, dated 04.06.1981.
5. Learned counsel for the appellants/minor plaintiffs contended that the First Appellate Court failed to note that the purchase of the suit property on 02.07.1985 is sham and nominal and it is not valid under the eye of law. According to him, the First Appellate Court ought to have dismissed the Appeal Suit, while accepting that the 2nd respondent is the father of the appellants/minor plaintiffs and only life interest has been given to the 2nd respondent. It is also his contention that the First Appellate Court failed to note that the 2nd respondent has conveyed the absolute right over the suit property to the 1st respondent, which is not valid in law.
6. In support of his case, learned counsel for the appellant has relied on an Apex Court decision in the case of Vithalbhai Pvt. Ltd. vs. Union Bank of India reported in 2005 (2) CTC 582, relevant portion of which, reads as under:
A suit of a civil nature disclosing a cause of action even if filed before the date on which the plaintiff became actually entitled to sue and claim the relief founded on such cause of action is not to be necessarily dismissed for such reason. The question of suit being premature does not go to the root of jurisdiction of the court; the court entertaining such a suit and passing decree therein is not acting without jurisdiction but it is in the judicial discretion of the court to grant decree or not. The court would examine whether any irreparable prejudice was caused to the defendant on account of the suit having been filed a little before the date on which the plaintiffs entitlement to relief became due and whether by granting the relief in such suit a manifest injustice would be caused to the defendant. Taking into consideration the explanation offered by the plaintiff for filing the suit before the date of maturity of cause of action, the court may deny the plaintiff his costs or may make such other order adjusting equities and satisfying the ends of justice as it may deem fit in its discretion. The conduct of the parties and unmerited advantage to the plaintiff or disadvantage amounting to prejudice to the defendant, if any, would be relevant factors. A plea as to non-maintainability of the suit on the ground of its being premature should be promptly raised by the defendant and pressed for decision. It will equally be the responsibility of the court to examine and promptly dispose of such a plea. The plea may not be permitted to be raised at a belated stage of the suit. However, the court shall not exercise its discretion in favour of decreeing a premature suit in the following cases: (i) when there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event; (ii) when the institution of the suit before the lapse of a particular time or occurrence of a particular event would have the effect of defeating a public policy or public purpose; (iii) if such premature institution renders the presentation itself patently void and the invalidity is incurable such as when it goes to the root of the courts jurisdiction; and (iv) where the lis is not confined to parties alone and affects and involves persons other than those arrayed as parties, such as in an election petition which affects and involves the entire constituency. (See Samar Singh v. Kedar Nath.) One more category of suits which may be added to the above, is: where leave of the court or some authority is mandatorily required to be obtained before the institution of the suit and was not so obtained.
7. Learned counsel appearing for the respondents drew the attention of this Court to paragraph nos.15 and 16 of the First Appellate Court's judgment and contended that the 2nd respondent has every right to sell the property to the 1st respondent in view of Ex.A4 - Sale Deed, dated 02.07.1985 and that the finding of the First Appellate Court is perfectly valid.
8. Heard the learned counsel on either side, gave careful consideration to their submissions and perused the material documents available on record.
9. It is not in dispute that Lingappa had two wives, viz. Minnammal and Mahadevamma and that the 2nd respondent herein, i.e. Kalappa is the son of Lingappa through his first wife Minnammal. It is also not in dispute that the appellants herein are the children of the 2nd respondent. Admittedly, the 2nd respondent's step-mother Mahadevamma executed a Settlement Deed marked as Ex.A3 in favour of the 2nd respondent that he can enjoy the suit property during his lifetime without creating encumbrance over the same and that only his children have got the entire right over the same after his lifetime. But, the 2nd respondent sold the suit property to the 1st respondent vide Sale Deed marked as Ex.A4, aggrieved over which, the minor children of the 2nd respondent approached the Trial Court by way of a suit. Though the Trial Court held in favour of the appellants/plaintiffs, the First Appellate Court reversed the finding of the Trial Court holding that the appellants have got right over the suit property only after the demise of their father, i.e. the 2nd respondent.
10. Even though the First Appellate Court accepted the contention of the appellants/plaintiffs that they are entitled to the suit property, in paragraph 15 of its judgment, it has observed that the appellants cannot claim right over the suit property during the lifetime of the 2nd respondent and that the 2nd respondent has every right to deal with the suit property during his lifetime. As regards the sale of the suit property by the 2nd respondent to the 1st respondent, the First Appellate Court, in paragraph 16 of its judgment, has held that the appellants will have to institute a separate suit for taking possession of the suit property, only after the lifetime of the 2nd respondent.
11. For better understanding, relevant paragraphs of the judgment of the First Appellate Court are extracted hereunder:
16/ jhd brl;oy;bkz;l; gj;jpuj;jpy; jhth brhj;ij capUs;s tiu tpy;y';fj;jpw;F cl;gLj;jhky; Mz;L mDgtpj;J te;J ckJ tapw;wpy; gpwf;Fk; re;jjpfs; kl;Lk; jhdhjp tpf;fpu';fSf;F mUfuha; Mz;L mDgtpj;Jf; bfhs;sntz;oaJ vd;W t&uj;Jf; fz;Ls;sjhy; nkw;go Mtzj;jpd;go Ma[s; tiuapy; mDgtpf;Fk; chpik cs;sjhy;. Ma[s; tiua[s;s chpikia bfhLg;gjw;F 2k; gpujpthjpf;F chpik cs;sjhy;. Ma[s; tiua[s;s chpikia bfhLg;gjw;F 2k; gpujpthjpf;F chpik cs;sJ/ vdnt ,e;J thhpRhpik rl;lk; 8 kw;Wk; 34d; go 2k; gpujpthjp capUld; cs;s epiyapy; jhthr; brhj;jpy; thjpfs; ghj;jpak; vJt[k; nfhuKoahJ/ 16/ jhd brl;oy;bkd;l; t&uj;Jg;go capUs;s tiuapy; mDgtpf;Fk; chpikia 2k; gpujpthjp jf;f itj;Jf; bfhz;Ls;s epiyapy;. mth; jhthbrhj;ij 1k; gpujpthjpf;F fpuak; bra;J bfhLj;jpUe;jhYk;. 2k; gpujpthjp capUld; cs;s epiyapy;. jhth brhj;jpy; mtUf;Fz;lhd Ma[l;fhyk; tiu mDgtpf;Fk; chpik Fwpj;J ghuhjPdk; bra;a 2k; gpujpthjpf;F chpika[z;L/ vdnt 2k; gpujpthjpapd; Ma[l;fhyj;jpw;F gpd;dpl;Ljhd; thjpfspd; chpik Fwpj;J jdpahf tHf;Fj;jhf;fy; bra;J ghpfhuk; njof; bfhs;syhk;/
12. On a reading of the above portion of the judgment of the First Appellate Court, it is clear that as per the Settlement Deed vide Ex.A3, the 2nd respondent has right to enjoy the suit property during his lifetime, but he has no right to sell the property or create encumbrance, which is prejudicial to the interest of the minor appellants. The finding of the First Appellate Court that as long as the 2nd respondent is alive, his children, i.e. the appellants have no right to claim the suit property is not correct. If the said finding is accepted, it amounts to opening the pandora's box and there is no chance of arriving at a finality to this issue, as third parties right can be created by the 1st respondent, thereby completely depriving the benefit to the appellants, which is ultimately contrary to the clauses in the Settlement Deed, whereby, the 2nd respondent was given only the right of enjoyment of the suit property.
13. Thus, this Court is of the view that the finding of the First Appellate Court in reversing the judgment of the Trial Court that the suit is premature and that the 2nd respondent has every right over the suit property during his lifetime, is contrary to the clauses stipulated in Ex.A3-Settlement Deed and accordingly, the same is set aside and the judgment dated 06.02.2009 passed by the District Munsif Court, Sathyamangalam in O.S.No.180 of 2006 is restored. Accordingly, the substantial question of law framed in this appeal is answered in favour of the appellants/minor plaintiffs.
In fine, the Second Appeal is allowed. No costs. Consequently, connected M.P.No.1 of 2011 is closed.
22.03.2017 Index : Yes/No Internet : Yes/No aeb To:
1. The District Munsif Court, Sathyamangalam.
2. The Subordinate Court, Sathyamangalam.
3. The V.R. Section, High Court, Madras.
S.VAIDYANATHAN,J.
(aeb) Judgment in S.A.No.848 of 2011 22.03.2017 http://www.judis.nic.in