Madhava Achar vs Ayyakannu Pillai

Challenge in this second appeal is made to the judgment and decree dated 06.11.2002, passed in A.S. No.15/2002, on the file of the Additional Sessions Judge, (Fast Track Court), Kallakurichi, confirming the judgment and decree dated 30.03.98, passed in O.S. No.788/90, on the file of the I Additional District Munsif Court, Kallakurichi.

Parties are referred to as per their rankings in the trial Court.

Suit for declaration and permanent injunction.

The case of the plaintiff, in brief, is that the suit property and other properties originally belonged to one Velayudha achari and Velayudha achari, by way of a Will dated 25.02.52 bequeathed the suit property in his favour and in favour of his brother Subbaraya achari, giving life enjoyment to their aunt Sivagami ammal and as per the terms of the Will, the plaintiff and his brother are entitled to obtain the equal share in the property bequeathed by the abovesaid Will after the life time of Sivagami ammal and as per the terms of the Will, the plaintiff and his brother had been maintaining Sivagami ammal and after the demise of the plaintiff's brother, it is only the plaintiff who had been maintaining Sivagami ammal till her demise and performed her last rites and on the demise of Velayudha achari, the property bequeathed by way of the abovesaid Will became vested in favour of the plaintiff and his brother and the plaintiff's brother died in 1961 without marriage and the plaintiff is the only legal heir to his brother and the plaintiff's brother also executed a Will dated 05.11.61 during his life time bequeathing the property to which he is entitled to in favour of the plaintiff and accordingly, on the demise of Sivagami ammal, it is only the plaintiff who has been in possession and enjoyment of the suit property as well as the other properties, the defendant has no manner of right, title or interest in the suit property, however, the defendant claims right in respect of the suit property on the basis of the document alleged to have been executed by Sivagami ammal and Sivagami ammal has no right to convey the suit property to any one as per the terms of the Will as she has been given only life time enjoyment and therefore, even if Sivagami ammal had executed a document, the same is not binding upon any one and hence, according to the plaintiff, as the defendant attempted to interfere with his possession and enjoyment, he has been necessitated to lay the suit for appropriate reliefs.

The case of the defendant, in brief, is that the suit laid by the plaintiff is not maintainable either in law or on facts. As per the terms of the Will dated 25.02.52, neither the plaintiff nor his brother Subbaraya achari had maintained Sivagami ammal and Sivagami amma acquired the title to the suit property absolutely and accordingly, Sivagami ammal alienated the suit property in favour of the defendant for a valid consideration by way of a sale deed dated 05.10.84 and since then, it is only the defendant who has title, possession and enjoyment of the suit property. It is false to state that Sivagami ammal was maintained the plaintiff and his brother and that her last rites were performed by the plaintiff. The sale effected by Sivagami ammal in favour of the defendant is a valid sale and binding upon the plaintiff. To the notice issued by the plaintiff, the defendant has sent a reply containing true facts and admitting the sale deed executed in favour of the defendant, Sivagami ammal sent a notice to the plaintiff on 25.01.85 and therefore, the plaintiff is not entitled to challenge the sale deed in favour of the defendant executed by Sivagami ammal. Further, Sivagami ammal has also laid the suit against the plaintiff and Subbaraya achari in O.S. No.50/1954 and obtained a decree on 23.10.54 and therefore, the plaintiff is estopped from claiming title to the suit property in view of the abovesaid facts and it is false to state that the plaintiff is in possession and enjoyment of the suit property and that the defendant attempted to interfere with his possession and enjoyment. The defendant does not admit the Will dated 05.11.61 said to have been executed by Subbaraya achari in favour of the plaintiff and the plaintiff has to prove the same and hence, the suit laid by the plaintiff is liable to be dismissed.

In support of the plaintiff's case, PWs 1 to 3 were examined, Exs.A1 to A4 were marked. On the side of the defendant, DWs 1 to 3 were examined, Exs.B1 to B6 were marked.

On a consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the Courts below were pleased to dismiss the suit laid by the plaintiff. Impugning the same, the present second appeal has been laid.

At the time of admission of the second appeal, the following substantial question of law was formulated for consideration:

"Whether in law the lower appellate Court was right in not moulding the relief on the facts and the evidence as set out in 1992 (2) MLJ 152?"

It is not in dispute that the suit property originally belonged to Velayudha achari. It is also not in dispute that Velayudha achari had executed a Will dated 25.02.52, bequeathing the suit property in favour of the plaintiff and his brother Subbaraya achari giving life enjoyment in respect of the suit property in favour of Sivagami ammal. The abovesaid Will has come to be marked as Ex.A1. As per the terms of Ex.A1 Will, it is found that the testator has specifically determined and directed that the plaintiff and his brother Subbaraya achari have to maintain Sivagami ammal till her life time and only after her life time, the plaintiff and his brother would be entitled to the property bequeathed by way of the Will and further, the testator has also recited and stipulated that in the event of the failure of the plaintiff and his brother to maintain Sivagami ammal, she is entitled to alienate the suit property. Thus, it is seen that as per the terms of Ex.A1 Will, Sivagami ammal has been given the full and absolute title to the suit property in the event of the failure of the plaintiff and his brother to maintain her during her life time. Though it is claimed by the plaintiff that he and his brother were looking after and maintaining Sivagami ammal during her life time and it is only the plaintiff who had performed her last rites etc., with reference to the above case of the plaintiff, there is no acceptable and reliable material forthcoming. The same has been vehemently disputed by the defendant. Despite the same, the plaintiff has not come forward with acceptable materials to sustain his case that he and his brother had been maintaining Sivagami ammal during the life time as per the terms of Ex.A1 Will. However, evidence has been tendered on behalf of the plaintiff as if Sivagami ammal is possessed of adequate properties and therefore, there is no need to maintain her as such. But when as per the terms of Ex.A1 Will, the plaintiff and his brother are bound to maintain Sivagami ammal during her life time and in the event of the failure of the same, the suit property in particular would be taken by Sivagami ammal absolutely and when the defendant has disputed the claim of the plaintiff that he has been maintaining Sivagami ammal during her life time etc., it is for the plaintiff to establish the same. In such view of the matter, the plaintiff cannot be allowed to plead as if Sivagami ammal is possessed of other properties and hence there is no need for providing sustenance to her during her life time. That apart, alleging that the plaintiff and his brother had failed to maintain her as per the terms of the Will dated 25.02.52 and thereby, claiming title to the suit property, it is found that Sivagami ammal has laid the suit against the plaintiff and his brother in O.S. No.50/1954, on the file of the District Munsif Court, Kallakurichi and the same could be evidenced from the abovesaid suit register extract marked as Ex.B2. Further, it is found that the said suit has come to be decreed in terms of the joint endorsement made by the parties concerned and accordingly, it is seen that the Court had upheld that the entitlement of the suit property in favour of Sivagami ammal and accordingly, granted the decree in favour of Sivagami ammal. The copy of the judgment passed in O.S.No.50/1954 has been marked as Ex.A4. On a conjoint reading of Exs.A4 and B2, it is found that the title of Sivagami ammal in respect of the suit property has been upheld by the Civil Court and further, she has also been granted the right to recover the possession of the suit property. The plaintiff has not disputed the abovesaid civil action initiated by Sivagami ammal against him and his brother. Thus, it is found that from the abovesaid documents also, Sivagami ammal has not been maintained by the plaintiff and his brother in terms of the recitals found in Ex.A1. Hence asserting her title, Sivagami ammal has preferred the abovesaid suit and based on the endorsement made by the parties concerned, the right of Sivagami ammal in respect of the suit property has come to be upheld by the Court. Thus, it is found that Exs.A4 and B2 plus the recitals found in Ex.A1 Will and the failure of the plaintiff to establish that he and his brother had maintained Sivagami ammal during her life time and accordingly, it is found that Sivagami ammal had acquired title to the suit property as per the terms of Ex.A1 Will and the same is also fortified by the Court by granting the decree in favour of Sivagami ammal in O.S. No.50/1954, as above noted.

In view of the abovesaid facts, the suit laid by the plaintiff claiming right under Ex.A1 Will does not merit acceptance. As per the terms of Ex.A1 Will, the plaintiff and his brother would be entitled to obtain the suit property only on their maintaining Sivagami ammal as directed thereunder. When even as per Sivagami ammal, the plaintiff and his brother had failed to maintain her and also there is no proof placed by the plaintiff to evidence that he and his brother had maintained her during her life time and on the other hand, materials placed prove otherwise, it is seen that as rightly determined by the Courts below, the plaintiff cannot lay any claim of title in respect of the suit property.

That apart, materials placed on record go to show that it is only the defendant who has been maintaining Sivagami ammal during her life time and the same could be evidenced from the medical assistance provided by the defendant to Sivagami ammal, which could be gathered from the letter sent by Sivagami ammal marked as Ex.B3 as well as the other documents placed on the side of the defendant. Accordingly, when it is found that Sivagami ammal has acquired a valid title to the suit property by way of Ex.A1 and as per the decree granted in O.S.No.50/1954, it is found that the defendant has acquired a valid title to the suit property by way of Ex.B1 sale deed and accordingly, it is found that it is only the defendant who has title, possession and enjoyment of the suit property. The position being as above, it is found that the plaintiff is unable to place any material to hold that he has been in possession and enjoyment of the suit property at any point of time after the decree had been passed in favour of Sivagami ammal in O.S.No.50/1954.

In the light of the above discussions, when the plaintiff claims title to the suit property based on Ex.A1 Will and when it is found that the plaintiff has lost his claim of title to the suit property under the said Will and further, when it is seen that Sivagami ammal had been confirmed right in respect of the suit property as above discussed under the terms of the Will and when the title of Sivagami ammal has been upheld in O.S.No.50/1954 and accordingly, it is further seen that, as absolute owner Sivagami ammal had also alienated to the suit property by way of Ex.B1 sale deed in favour of the defendant, it is found that the plaintiff has no title, possession and enjoyment in respect of the suit property and accordingly, it is found that the Courts below had rightly considered the various materials placed on record in the matter in the right perspective and dismissed the plaintiff's case. No interference is called for in the judgment and decree of the Courts below in negativing the plaintiff's suit.

In the light of the abovesaid discussions, the contentions putforth by the plaintiff's counsel that the first appellate Court has erred in not modifying the reliefs sought for by the plaintiff as per the materials placed on record is found to be untenable when it is noted and rightly held by the first appellate Court that the plaintiff is not entitled to the grant of the reliefs sought for. The substantial question of law formulated in this second appeal is accordingly answered against the plaintiff and in favour of the defendant.

Resultantly, the second appeal fails and is accordingly dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.