- (1.) These appeals have been preferred against the impugned judgment and order dated 12.12.2003 passed by the High Court of Madras in Second Appeal Nos. 1536-1537 of 1991, by way of which the common judgment and decree passed by the First Additional District Judge in A.S. No. 198 of 1983 and A.S. No. 43 of 1988 were set aside, and the suit O.S. No. 58 of 1982, was dismissed, holding that the suit filed by the plaintiff, father of the appellant herein, is not maintainable.
(2.) Facts and circumstances giving rise to these appeals are that: A. The suit property i.e. House No. 9/39, Savaripadayatchi Street, Nellithope, Pondicherry, originally belonged to the deceased appellant/great grandfather Vengadachala Naicker, son of Ayyamperumal Naicker. He donated the above-mentioned suit property on 13.12.1896 in favour of his minor grandsons Radja Row and Kichnadji Row, both sons of Ponnusamy Naicker, and the said donation deed was registered on 18.1.1897. In the deed, it was provided that the donees/grandsons would only have a life estate, and that after their death, only their male legal heirs shall be entitled to the suit property, with the right of alienation. B. In view of the fact that the donees were minors at that time, their father Ponnusamy Naicker was appointed as the guardian, in the said deed. C. The donee Kichandji Row died issueless and hence, the other donee Radja Row became the full usufructuary owner of the suit property. Radja Row also died leaving behind his wife Thayanayagy Ammalle and his son Kannussamy Row. The said Kannussamy Row died issueless leaving behind his mother Thayanayagy Ammalle and Kuppammal his wife. After the death of Kuppammal, Thayanayagy Ammalle became the sole inheritor of the property. Thayanayagy Ammalle subsequently executed a sale deed dated 16.7.1959 in favour of Vedavalliammalle, the first defendant. D. As per the terms of the donation deed dated 13.12.1896, after the death of Kannusamy Row, the suit property could only devolve upon his male legal heirs. Since the deceased Radja Row did not have any issue, the suit property had to go to the sole male reversioner and surviving heir, i.e. Radja Row's cousin brother Ramaraja, being the grandson of the donor Vengadachala Naicker. E. On the basis of the aforesaid plaints, the appellant/plaintiff filed a suit against the said first defendant Vedavalliammalle before the erstwhile French Court of the Tribunal of First instance, for a direction that the plaintiff was in fact, the heir of the deceased Radja Row, and also for a direction to the first defendant to not waste the suit property. F. Immediately, after filing the said suit, the French Colony of Pondicherry was merged with the Union of India. The Hindu Succession Act, 1956 (hereinafter referred to as the 'Act 1956), had been extended to the Union Territory of Pondicherry w.e.f. 1.10.1963. G. The suit filed by the appellant/plaintiff was decided vide judgment and decree dated 18.8.1965, wherein it was held that since Thayanayagy Ammalle was still alive, the claim of the appellant/plaintiff was premature. However, in the said suit, an observation was made that the appellant/plaintiff was the legal heir to the deceased Radja Row. H. Aggrieved, Vedavalliammalle/first defendant preferred an appeal against the said judgment. However, Thayanayagy Ammalle did not press the appeal, with regard to the finding of the court as to whether the appellant/plaintiff was a legal heir to the deceased Radja Row, and contested only the appointment of the Commissioner, who had been appointed to determine whether any repairs were necessary, in respect of the suit property. I. The appellate court allowed the appeal vide judgment dated 2.2.1970, only to the extent of holding that no repairs were necessary for the suit property. The said Thayanayagy Ammalle died on 30.5.1978. It was at this juncture, that the claim of the appellant over the suit property was not accepted by the opposite parties. The first defendant Vedavalliammalle and her husband, the second defendant, thereafter leased out the suit property in favour of the 3rd to 9th defendants on 30.5.1979, and were receiving rent for the same henceforth. J. Defendant No.10 Jeyaraman, who was the husband and father of respondent nos. 4 and 5 respectively, purchased the suit property from defendant no.1 vide registered sale deed dated 26.4.1980. K. The deceased-plaintiff i.e. father of the appellants, filed suit O.S. No. 58 of 1982, in the Civil Court of Pondicherry for declaration that he was the legal heir of the deceased Radja Row, and thus had a proper title to the suit property and for declaration that the sale deed dated 16.7.1959 executed by Thayanayagy Ammalle in favour of Vedavalliammal, was null and void as she had only a life estate and not an absolute title, to alienate the property. L. The said suit was contested by respondents/defendants and it was decided on 7.10.1983, by the Civil Court, which held that: a) Since Kannussamy Row had died before the introduction of the Hindu Succession Act, and considering the Hindu Law applicable in the French Territory of Pondicherry, after the death of the sole male heir to the suit property, the wife and the mother of the legal heir would have only usufructuary right over the suit property and not an absolute title. b) As per the above customary Hindu Law applicable in 1959, the vendor Thayanayagy Ammalle had only a usufructuary right over the property, and not the absolute right to alienate the same. c) Therefore, the reversionary male heir was entitled to inherit the property, being the sole heir of the original donor. d) The defendants/respondents had not acquired the title by way of possession/prescription. e) The suit was not barred by res-judicata. Though the court decided the question of title in favour of the appellant/plaintiff, the trial court found that the appellant/plaintiff had filed the suit only for declaration of his right to the suit property, and since he had not asked for consequential relief of delivery of possession, the suit was held to be not maintainable and was dismissed. M. Aggrieved, the appellant/plaintiff filed an appeal challenging the said judgment and order dated 7.10.1983, before the court of the District Judge, and the said appeal was allowed vide judgment and decree dated 13.4.1989, observing that the sale deed had been executed by Thayanayagy Ammalle in favour of defendant no. 1 on 16.7.1959, prior to the extension of the Hindu Succession Act to Pondicherry on 1.10.1963. The result of the same was that she had sold only her life estate in the suit property, as she was only a life estate holder and upon her death, the property devolved on the sole living reversionary. Further, it was held that, as the appellant/plaintiff had filed a suit for declaration in respect of the suit property in which there were tenants, it was not necessary for the appellant to claim any consequential relief for the reason that after obtaining such a declaration, appropriate relief could be claimed under Pondicherry Non- Agricutural Kudiyiruppudars (Stay of Eviction Proceedings) Act of 1980 (hereinafter referred to as the 'Act 1980'). There was thus, no need for a separate prayer for recovery of possession, as the same could be asked only under the Special Enactment. N. Being aggrieved, the respondents/defendants filed second appeals before the High Court, and it was during the pendency of the said appeals, that Vedavalliammal sold the suit property to respondent nos. 1 to 3 on 31.3.1993. In view thereof, they were also impleaded in the appeal as respondents. The said appeals were decided by impugned judgment and order dated 12.12.2003, wherein the High Court had held, that Thayanayagy Ammalle had acquired the absolute title over the property. As the first defendant Vedavalliammal had purchased the suit property from the absolute owner Thayanayagy Ammalle vide sale deed dated 11.7.1959, she had become the rightful owner, and the said sale deed was not null and void. Also, in view of the fact that the said Vedavalliammal had been in possession of the suit property for over than 10 years, she had perfected the title to the suit property by prescription, under the provisions of French Civil Code and as a consequence thereof, the suit for declaration was not maintainable without seeking the relief of possession. Hence, these appeals.
(3.) Shri R. Venkataramani, learned senior counsel appearing for the appellants has submitted that the High Court had committed an error by holding that Thayanayagy Ammalle had acquired an absolute title over the suit property, and that by selling the suit property to Vedavalliammalle, who had purchased the suit property from her, vide sale deed dated 16.7.1959, Vedavalliammalle, had become the absolute owner of the suit property and that the sale deed (Ext. A-4) was not null and void. The courts below have recorded a finding that Thayanayagy Ammalle was only a life estate holder and thus, had not acquired an absolute title. The High Court has not given any reason whatsoever, for reversing the said finding of fact. The said finding is perverse being based on no evidence. In case such a finding goes, the sale deed dated 16.7.1959 could not confer any title on the purchaser, Vedavalliammalle. More so, the High Court had not correctly framed the substantial question of law, rather it had framed entirely irrelevant issues, such as, the prescription and issue of limitation. The High Court had committed an error by holding that the suit for declaration was not maintainable without seeking any consequential relief, when the First Appellate Court has rightly held, that in a case where the property had been in the possession of the tenants, and where there were other means to recover the possession, there was no need for seeking any consequential relief in that aspect. Thus, the appeals deserve to be allowed.;