SELLAMMAL Vs. SELLAKUMARASWAMI GOUNDER

JUDGEMENT

(1.) THE plaintiff, who lost before the Court below in a suit for partition of A schedule property with a claim for mesne profits or in the alternative, for a declaration of title in respect of B schedule property with a claim for mesne profits estimated at Rs.10,000/- per annum is before this Court in appeal. 2. Heard Ms.M.B.Dominique, learned counsel appearing for the appellant and Mr.S.V.Jayaraman, learned Senior Counsel appearing for respondents 1 to 6. Respondents 7 to 11, though served, have not chosen to enter any appearance through a lawyer. THEy are also not present in Court. 3. We summarise hereunder the plaintiff's case: "(a) Ganapathy Gounder and Karuppa Gounder are the sons of Marappa Gounder. THE plaintiff is the widow of Karuppa Gounder. Karuppa Gounder died in the year 1953 leaving the plaintiff alone as his legal heir. Ganapathy Gounder died in the year 1955 leaving behind his widow, the 6th defendant and their sons first defendant and second defendant. Defendants 3 to 5 are the sons of the first defendant. Ganapathy Gounder and Karuppa Gounder constituted a joint Hindu family. THE Hindu joint family possessed of a large number of properties in the villages called Ettimadai, Thirumalayampalayam, etc. THE joint family properties are described in Schedule 'A' to the plaint. Ganapathy Gounder is the elder brother of Karuppa Gounder. After the death of his younger brother, he executed a deed of maintenance dated 12.6.1954 in favour of the plaintiff. This maintenance deed covered 16 acres of the properties owned by the family. THE plaintiff was given a life interest in the said properties. THE plaintiff took possession of the properties given to her in lieu of maintenance, which in turn was leased out to Ganapathy Gounder for the purpose of cultivation on a return of Rs.700/- a year. After the death of Ganapathy Gounder, the first defendant continues to be in possession of those lands and was paying the plaintiff some amount towards her maintenance. On 29.5.1970, the defendants 1 and 2 entered into a deed of partition regarding the entire estate left behind by the two brothers. THE properties described in Schedule 'A' to the partition deed was allotted to the first defendant; properties described in Schedule 'B' to the partition deed was allotted to the second defendant and the properties described in Schedule 'C' to the partition deed was allotted to the sixth defendant for her life time to be succeeded by defendants 1 and 2 in equal share after her death. THE plaintiff is not a party to the said partition deed. (b) On the date of death of her husband, the plaintiff had a right in all the family properties belonging to the joint family under the Hindu Women's Rights to Property Act, XVIII of 1937 as subsequently amended. She has a right like that of a son in her husband's share. Since Karuppa Gounder died leaving behind the plaintiff alone as his only legal heir, she is entitled to half share in the joint family properties morefully described in Schedule 'A' to the plaint. THE plaintiff, by acting upon the maintenance deed dated 12.6.1954 did not surrender or relinquish her rights for a share in the joint family properties in which her husband had a half share. THErefore, the plaintiff is entitled to half share in the properties to which her husband is entitled to on the date of his death. After the partition deed in 1970, defendants 1 to 5 have alienated various properties described in Schedule 'C' to the plaint in favour of defendants 7 to 11 and those alienation are neither for necessity nor for any other legal purpose and therefore, not binding on the plaintiff. THE lands are fertile lands yielding a net annual income of Rs.50,000/-. THEre are eight wells in the lands fitted with motors and pumpsets. Several valuable crops had been raised. THE plaintiff therefore quantifies the mesne profits payable to her at Rs.25,000/- for three years prior to the filing of the suit. THEre are 30 yielding coconut trees and about 100 coconut saplings in the land covered under Ex.A1, the maintenance deed. THEre are totally 600 coconut trees in the family lands. THErefore, the defendants are jointly and severally liable to pay to the plaintiff her mesne profits. (c) If the Court finds that the plaintiff is not entitled to partition, then, in the alternative, the plaintiff prayed for declaration of her title to the properties covered under Ex.A1. She would also state that the life estate created under Ex.A1 in her favour would get enlarged under section 14(1) of the Hindu Succession Act. On that basis, she claims mesne profits at the rate of Rs.10,000/- per annum. THE plaintiff issued a notice dated 28.6.1984 to the defendants, which met with a reply notice dated 5.7.1984 containing false allegations. Hence the suit as referred above." 4. (i) THE first defendant has filed a written statement adopted by defendants 2 to 6 and the sum and substance of the defence is as follows: "(a) It is denied that Ganapathy Gounder agreed to cultivate the properties allotted for maintenance since the plaintiff is a woman. But however, under a different arrangement, Ganapathy Gounder cultivated the lands. Likewise the first defendant is also cultivating the lands under a different arrangement. THE suit is filed on a speculative basis. After the death of her husband, the plaintiff did not exercise any rights of ownership over any of the properties. It is denied that she had half share in the properties on the death of her husband under the Hindu Women's Rights to Property Act. It is denied that she has a right like a son and that she had inherited half share in the entire property on the death of her husband since he left no other heirs. THE plaintiff was never in possession of the properties in the eye of law. On the death of her husband, the plaintiff relinquished whatever rights she had in the property and she has only a life estate interest in the properties which are the subject matter of the maintenance deed dated 12.6.1954. Such rights under the maintenance deed would not get enlarged in the eye of law. Such enlargement of right never took place. No property was ever given to the plaintiff in lieu of maintenance. Till the year 1984, the plaintiff did not put forward any claim at any time. That shows she had no right over the properties. She has acquiesced in her relinquishment of whatever rights she had. By acting upon the maintenance deed, she has acquiesced her life-estate interest only. By executing a registered lease deed in favour of Ganapathy Gounder, she had acquiesced in her life-estate interest only. She had more than once confirmed that she had only a life-estate in the properties. After the death of Ganapathy Gounder, the first defendant became a cultivating tenant under the life-estate owner and the vested remainder vested with him. THE plaintiff is not entitled to claim partition as she is not entitled to any share. She is living separately in a different village. THE plaintiff is aware that after her husband's death, defendants 1 to 6 have been enjoying the property in their own right openly, continuously and uninterruptedly. THE plaintiff is fully conscious and aware of that fact. During that time, the plaintiff had not exercised any rights of ownership at all. (b) THE properties forming subject matter of the maintenance deed had been partitioned in the year 1970 between the defendants and those properties have fallen to the share of the first defendant. THE plaintiff is bound by the restrictions and the covenants in the maintenance deed. THE partition between the defendants is by a registered instrument. THE plaintiff never protested the partition and therefore, she is estopped from questioning the said partition. THE plaintiff, assuming she had any right, had lost it by law of limitation and adverse possession. THE defendants therefore have perfected their title by adverse possession. This plea is taken without prejudice to the defendants' contentions already taken. THE first and second defendants have improved the lands by spending more than Rs.2,00,000/- by digging wells and installing motor and pumpsets and for improving the soil. Section 14(1) of the Hindu Succession Act would not apply to the case on hand. THE alienations in favour of defendants 7 to 11 are valid and binding on the plaintiff. THE alienations are made for proper consideration and in good faith also. It is false to state that the annual return from the lands would be Rs.50,000/-. Expenses incurred by the defendants in cultivating the lands and improving the same have been omitted to be mentioned in the plaint. THE gross income from the lands would be only Rs.10,000/- per annum. THE plaintiff is not entitled to any mesne profits past or future. THE plaintiff is not entitled to the alternative relief as it is inconsistent with the right for partition." (ii) Defendants 7 to 11 filed a separate written statement contending that they are bonafide purchasers for valid consideration and without notice. It is their further contention that the plaintiff cannot question those sales as she was fully aware of those sales and did not make any protest at the time of alienation. THE plaintiff has acquiesced in the sales and therefore, she cannot question it now. Defendants 7 to 9 and father of defendants 10 and 11 purchased the lands from lawful owners. No relief is asked for by the plaintiff to set aside the sales and without asking for such a relief, the suit is not maintainable. THE plaintiff had not paid the necessary court fee to set aside the sales. After purchase, the defendants have made improvements on the property by spending huge amounts. Each of the defendants have spent not less than Rs.10,000/- and developed the lands. In any event, the defendants are entitled to equity and their right in the property should be safeguarded even if there is going to be partition decree in favour of the plaintiff. (iii)THE first defendant filed an additional written statement contending that items 9 to 13 described in Schedule 'A' to the plaint were separate properties of his father namely Ganapathy Gounder. According to him, Ganapathy Gounder purchased those properties along with Karuppa Gounder S/o Thulasi Gounder under a registered sale deed dated 7.6.1953 and therefore, they are the separate properties of Ganapathy Gounder. Those properties were sold under a registered sale deed dated 1.3.1973 in favour of the seventh defendant herein. THE above mentioned properties are not the joint family properties of Ganapathy Gounder and his brother Karuppa Gounder. THE plaintiff is therefore not entitled to seek any partition with reference to those properties. THE seventh defendant has made considerable improvements after the sale in his favour. THE plaintiff's claim is barred by limitation. (iv)THE first defendant filed another additional written statement contending that properties included in the 'A' schedule by amendment of the plaint are the separate properties of defendants 2 and 3 and they do not possess the character of joint family properties. Those properties were purchased out of their own income and they have been dealing with the same as their own. Those purchases were made by the second defendant under a sale deed dated 16.6.1981 from and out of his own sources. THEre was another sale deed dated 22.6.1989, in and by which the second defendant purchased the other property from and out of his own source. THE third defendant purchased another property under a registered sale deed dated 24.6.1981 from and out of his own source. THErefore, the properties included in the plaint by way of amendment are not available for partition. (v) THE plaintiff filed a reply statement contending that items 9 to 13 shown in 'A' schedule to the plaint are joint family properties. Karuppa Gounder and Ganapathy Gounder were agriculturists by profession and they did not have any other avocation or source of income. THE purchases made on 7.6.1953 are from the joint family funds. THErefore, those properties would also partake the character of joint family properties. 5. THE learned trial Judge on the pleadings, framed the following issues: "1.Whether the plaintiff has a right to ask for a partition of the properties described in Schedule 'A' and Schedule 'C' to the plaint" 2.Whether the plaintiff has absolute title over the property described in Schedule 'B' to the plaint" 3.Whether the plaintiff is entitled to maintenance" 4.What is the relief the parties are entitled" THE learned trial Judge also framed additional issues as hereunder: (a) Whether the 'A' schedule properties are joint family properties" (b) Whether the suit is barred by limitation" THE learned trial Judge again framed an additional issue as hereunder; "Whether defendants 1 to 6 have perfected the title by adverse possession"" 6. THE plaintiff examined herself as P.W.1 besides marking 20 documents as Exs.A1 to A20. THE first and second defendants examined themselves as D.Ws 1 and 2 and marked 34 documents as Exs.B1 to B34. Exs.C1 and C2 are the Commissioner's report and Commissioner's plan. On the entire materials placed on record, the learned trial Judge found on issue no.1 that the plaintiff is not entitled to claim partition in 'A' schedule property and 'C' schedule property. On issue no.2, the learned Judge found that the plaintiff is not entitled to the relief asked for in the suit. On issue no.3, the learned Judge found that the plaintiff is not entitled to life-time maintenance. On additional issue no.1, the learned Judge found that excluding the properties included by way of amendment in 'A' schedule property, the rest are joint family properties. On additional issue no.2, the learned Judge found that the suit is not barred by limitation. On the last additional issue framed, the learned Judge found that the defendants have not perfected their title by adverse possession. Ultimately, the suit was dismissed. 7. Ms.M.B.Dominique, learned counsel appearing for the appellant, relying upon section 3 of the Hindu Women's Rights to Property Act, 1937 and section 14(1) of the Hindu Succession Act, would contend that on the death of the plaintiff's husband, she had a limited interest known as a Hindu woman's estate and that she shall have the same right of claiming partition as a male owner. Such a limited right recognised under sub-section (3) of section 3 of the Hindu Women's Rights to Property Act (hereinafter referred to as "the Central Act of 1937") gets enlarged into an absolute estate under section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as "the Central Act of 1956"). She would further submit that though Ex.A1 " the maintenance deed was acted upon, yet, a restrictive life estate granted under that document to her would get enlarged into an absolute estate under section 14(1) of the Central Act of 1956. She would also add that despite her client accepting the maintenance deed, though it was not fully acted upon by the settlor and his legal representatives later on, yet, she is entitled to claim a share in the entire property belonging to the joint family. She would also submit that her client had a pre-existing claim of maintenance on the date of death of her husband in the year 1953 and whatever limited right she had on that day namely as a Hindu woman's estate, it got enlarged by the coming into force of section 14(1) of the Central Act of 1956. 8. Mr.S.V.Jayaraman, learned Senior Counsel appearing for respondents 1 to 6 did not fairly contest the position in law and in fact, the learned Senior Counsel took us through the provisions of the Central Act of 1937 and 1956 and explained the position in law. To a question put to the learned Senior Counsel as to whether the character of the properties forming subject matter of the 'A' schedule to the plaint can any way be questioned as not being that of joint family properties, the learned Senior Counsel would fairly state that such a stand was not taken by the contesting defendants before the Courts below and therefore, he would not be in a position to controvert the character of the properties as joint family properties. 9. On the submissions made by the learned counsel on either side and on going through the pleadings, in our opinion, the following issues alone arise for consideration in this appeal: "1) Are not the properties described in 'A' schedule (Schedule 'C' properties forming part of Schedule 'A') joint family properties belonging to the joint family consisting of Ganapathy Gounder and Karuppa Gounder" 2) If so, what is the legal right of the plaintiff in the said joint family properties on the date of death of her husband in the year 1953" 3) If she had any legal right would it get enlarged into an absolute right after coming into force of the Hindu Succession Act, 1956" 4) Would Ex.A1, the deed of maintenance executed in favour of the plaintiff any way curtail her rights to claim the relief of partition" 5) Have not the defendants 1 to 6 perfected the title by adverse possession" 6) Are not the alienations bad in law for want of any necessity"" 10. Let us now apply our mind to issue no.1. That Ganapathy Gounder and Karuppa Gounder are blood brothers is not disputed. Ex.A1 is the settlement deed dated 12.6.1954 executed by Ganapathy Gounder in favour of the plaintiff, thereby making a provision for her maintenance. THE recital in the maintenance deed is that as the plaintiff is the wife of his younger brother; as she has no issues; as she is not in possession of any property for her maintenance and as the settlor has a legal duty to provide maintenance to her, the deed has come to be executed. THEre is an admission in this settlement deed that the properties settled in favour of the plaintiff in lieu of maintenance is his ancestral property. We have already noted that Ganapathy Gounder and Karuppa Gounder are brothers and they are the sons of one Marappa Gounder. THErefore, this admission in Ex.A1 that the properties in possession of the settlor and settled in favour of the settlee / plaintiff are ancestral in nature, by itself would give us the platform to proceed further to decide the nature of the property in the hands of the two brothers. We perused the written statement of the contesting defendants. THEy have nowhere denied the character of the properties forming subject matter of the suit as joint family properties. THErefore, we find that there is no denial at all in the written statement of the character of the properties forming subject matter of the suit. Even in the evidence of the defendants, they have not taken any such defence. THE case of the plaintiff is that the properties forming subject matter of the suit are joint family properties belonging to her husband and his elder brother namely Ganapathy Gounder. THErefore, we have no hesitation at all to conclude on issue no.1 that the properties forming subject matter of the suit are joint family properties belonging to the two brothers referred above. 11. In our opinion, as our appreciation of issues 2, 3 and 4 framed by us separately would overlap each other, we have decided to consider issues 2, 3 and 4 together. THEre is no dispute that Karuppa Gounder " the plaintiff's husband died in the year 1953. Ganapathy Gounder, his elder brother died in the year 1955. THE Hindu Succession Act came into force in the year 1956. Rights of a woman / widow prior to the 1956 Act stood governed by the Hindu Women's Rights to Property Act " Act 18 of 1937. It appears, subsequently, in the year 1946, another Act namely Hindu Married Women's Right to Separate Maintenance and Residence Act - Act 19 of 1946 came to be brought into force. THE plaintiff's claim in this case is governed by the provisions of Central Act 18 of 1937. Sub-sections (2) and (3) of section 3 of that Act stands attracted to the case on hand. Under sub-section (2) of section 3 of the Act, when a Hindu governed by any school of Hindu law other than Dayabhaga School or by customary law, at the time of his death had interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. We also found that Karuppa Gounder and Ganapathy Gounder constituted a joint Hindu family, which possessed a large extent of properties. THErefore, there is no difficulty in holding that in the year 1953, when Karuppa Gounder died, he left behind an interest in Hindu joint family property. From a reading sub-section (2) of section 3 of the Central Act 18 of 1937, it is clear that the widow, namely the plaintiff, on the death of her husband, had acquired a right in the joint family property which her husband had just prior to his death. Proceeding on that basis, we applied our mind to sub-section (3) of section 3 of the above referred to Act. That sub-section provides that any interest devolving on a Hindu widow under the provisions of this section namely sub-section (2) of section 3 shall be the limited interest known as a Hindu woman's estate, provided however that she will have the same right of claiming partition as a male owner. In other words, in respect of her limited interest known as a Hindu Woman's estate, she can even claim for a partition as a male owner. It is no doubt true that under the maintenance deed of the year 1954 (Ex.A1), the plaintiff was given only a life interest. Right of maintenance to a widow was a pre-existing right in her on the date of death of her husband. Having regard to the above provisions in law, we perused section 14 of the Hindu Succession Act. It has been held that sub-section (2) of section 14 of the Hindu Succession Act is an exception to sub-section (1) of the same section. In other words, wherever section 14(2) gets into operation, section 14(1) would stand excluded. In this case, under Ex.A1, the plaintiff had been given only a limited right of life estate in lieu of maintenance. (i) THE Supreme Court of India in the judgment reported in AIR 1999 SC 1147 (BENI BAI -vs- RAGHUBIR PRASAD) held in construing section 14 of the Hindu Succession Act that whenever a right is created for the first time, then, section 14(2) gets attracted. On the other hand, if an instrument is executed in recognition of a pre-existing right, then section 14(1) of the Act would get attracted which means any limited interest given to a widow in lieu of maintenance would also get enlarged into an absolute estate under section 14(1). Ex.A1 had come to be executed in recognition of the plaintiff's pre-existing right to get maintenance. THErefore, Section 14(1) of the Hindu Succession Act alone would apply, which means that right gets enlarged into an absolute right on the coming into force of Section 14(1) of the Hindu Succession Act, 1956. (ii) Now, the question is, what is the impact of Ex.A1 on the right of the plaintiff to claim partition. THE joint family, on the date of death of Karuppa Gounder had 91.73 acres of property " all said to be very valuable. Under Ex.A1, the plaintiff was given a limited right over 16 acres of property and those lands also continued to be in the occupation of Ganapathy Gounder, to start with as a lessee under the plaintiff and later on under his eldest son namely the first defendant. THE case of the plaintiff is that though for some time, a nominal amount was paid by Ganapathy Gounder and after his death by the first defendant who continued to be in occupation, later on, the first defendant had not chosen even to pay a pie to the plaintiff. From 1954 till date of plaint it was Ganapathy Gounder and after him, the first defendant who are in possession and enjoyment of the properties covered under Ex.A1. As already noted, Ex.A1 is only with reference to a paltry extent of 16 acres out of the total extent of 91.73 acres. THE relief of partition is asked for in respect of the entire extent including the extent covered under Ex.A1. From a reading of the provisions of Act 18 of 1937 and the terms of Ex.A1, we are of the opinion that the plaintiff's right to claim partition had not been given up at all by her. Even before execution of Ex.A1, the plaintiff had acquired a limited estate called Hindu Woman's Estate in the joint family properties. THEre is nothing in Ex.A1 to show that the plaintiff had relinquished the right of a Hindu Woman's Estates which had already accrued to her. As already stated, the partition is asked not in respect of a large extent of property. THErefore, we hold on issues 2, 3 and 4 that the plaintiff has a legal right to maintain the suit for partition and the limited estate accrued to her under sub-section (2) of Section 3 of Act 18 of 1937 got enlarged into an absolute estate under section 14(1) of the Hindu Succession Act and that Ex.A1 would not affect her rights to claim partition. THE learned trial Judge relied upon the judgment reported in AIR 1987 SC 353 (K.SATHYANARAYANA -vs- G.SITHAYYA) to hold that when under an instrument of maintenance a limited interest is given section 14(2) of the Hindu Succession Act alone would apply and therefore, the settlee under such instrument would not get her rights enlarged into an absolute estate under section 14(1) of the Act. Though that judgment is also on the point, yet, in view of the fact that the Honourable Supreme Court of India in a later judgment reported in AIR 1999 SC 1147 as referred to supra had held in a similar situation that section 14(2) would not get attracted and only section 14(1) would get attracted, we are inclined to follow the latter judgment to hold that the restrictive estate given under Ex.A1 would not be governed by section 14(2) of the Act but only under Section 14(1) of the said Act. In any event, since we have held that the plaintiff is entitled to claim partition in the entire property, any decision of ours on Ex.A1 whether it gets enlarged into absolute estate or not cannot have a real bearing on the plaintiff's right to claim partition. THErefore, we hold that the plaintiff has a legal right to maintain her suit for partition. Consequently, we answer all the three issues namely issues 2, 3 and 4 in favour of the plaintiff on the lines indicated above. 12. Coming to issue no.5 namely adverse possession, there is nothing on record to show that the defendants continued to enjoy the properties forming subject matter of the suit in an open and hostile manner to the knowledge of the true owner. It must be remembered that the properties originally possessed the character of the joint family properties during the lifetime of the two brothers namely Ganapathy Gounder and Karuppa Gounder. THE younger brother died in the year 1953. Lands forming subject matter of Ex.A1 continued to be in the occupation and enjoyment of Ganapathy Gounder as a lessee under the plaintiff and thereafter by the first defendant. THEre is no evidence to show that contra to the terms of the lease deed, either Ganapathy Gounder or the first defendant had ever enjoyed the property hostile to the rights of the true owner namely the plaintiff. Even in respect of other properties, we find that the properties continue to possess the character of joint family properties. Till 1981, the plaintiff's right to have maintenance was recognised by Ganapathy Gounder during his lifetime and his son, the first defendant, after him by paying some nominal sum under the lease. It is a well settled position in law that if the property belongs to a joint family, then possession of one is possession for the other as well. THEre is no evidence to show that the plaintiff was ever ousted from her rights in the property forming subject matter of the suit. THE suit itself was filed in the year 1984 namely within three years from the denial of her right to get the amount under the lease arrangement. THErefore, we are in entire agreement with the finding rendered by the learned trial Judge that the defendants have not proved adverse possession and we answer issue no.5 in favour of the plaintiff. 13. As far as issue no.6 is concerned regarding the alienations made by defendants 1 and 2 of the various properties in favour of defendants 7 to 11, we find that as all the alienees have chosen not to enter the witness box to support their purchase though they have filed written statement contending that they are bonafide purchasers without notice, yet, there is no legal evidence before Court to support their case. Evidence of D.Ws 1 and 2 also do not show that the sales were for any binding family necessity. But however, there cannot be any doubt that the sales effected by the various defendants namely defendants 1 to 6 are definitely binding to the extent of their share. In other words, the sales effected in favour of defendants 7 to 11 and referred to in the plaint are not binding to the extent of plaintiff's share alone in those properties. It must be noticed here that the plaintiff, after the filing of the plaint brought in some more properties by way of amendment as available for partition. THEy are described as items 31 to 38 in schedule 'A' to the plaint. In this context, learned counsel Ms.Dominique would state, on instructions from her client, that she is confining the relief of partition with reference to items 1 to 30 alone shown in 'A' schedule when the plaint was filed. This concession she gives, taking into account the defence taken by the contesting defendants that the property other than items 1 to 30 have been purchased by them with their own funds long after the earlier partition in the year 1970. Accordingly, there shall be a judgment as hereunder: a) THEre shall be declaration that the plaintiff is entitled to half share over items 1 to 30 described in Schedule 'A' to the plaint; b) In respect of items 31 to 38 mentioned in the said schedule, the suit shall stand dismissed; c) Accordingly there shall be a preliminary decree for partition in respect of items mentioned in Clause (a) supra; d) THE enquiry into future mesne profits stands relegated to final decree proceedings. No costs.