P.N. Vembu Pillai vs Seshammal and Others

Sadasivam, J.—Appellant Vembu Pillai filed the suit Original Suit No. 34 of 1959, on the file, of the Court of the Subordinate Judge. Tiruchirappalli, for a declaration that the settlement deed, dated 12th February 1959 executed by the first Defendant Seshammal (exhibit A-11) is not binding on him and the estate of Ramasami Pillai, that none of the properties described in the plaint schedule is liable to be sold in execution of the decree in Original Suit No. 56 of 1956, on the file of the Court of the Subordinate Judge, Tiruchirappalli, or the personal decree that may be passed thereon, for a permanent injunction restraining Defendants 1 to 6 from interfering with his possession of the suit properties, by bringing the properties to sale in execution of the decree in Original Suit No. 56 of 1956, on the file of the Court of the Subordinate Judge, Tiruchirappalli, or the personal decree that may be passed therein, for partition and possession of half share of items 1 to 11 and 33 of the plaint schedule of three-fourth share of item 12, for declaration of the right of the Appellant-Plaintiff to recover possession of the remaining half share in items 1 to 11 and 33 and the remaining one-fourth of item 12 after the life-time of the first Defendant, for recovery of possession of items 13, 15, 18, 23 to 25, 31, 32 and 34 to 46, and for mesne profits. The trial Court gave a decree declaring that the settlement deed, dated 12th February 1959, executed by Seshammal (original of exhibit A-11) is not valid and binding on the Plaintiff so far as it related to the items of properties that were allotted to Sivabagyathammal (Appellant�s maternal grandmother) in the partition, as they were not in the possession of Seshammal on the date of the Hindu Succession Act coming into force, but that the settlement deed is valid so far as the properties that were allotted to Seshammal which were in her possession on the date of the coming into force of the said Act. In other respects, it dismissed the suit and directed the Appellant-Plaintiff and the first Defendant to bear their respective costs, but directed the Appellant-Plaintiff to pay the costs of the other contesting Defendants.

It is necessary to state the facts of this case for appreciating the contentions put forward in the suit and for disposing of the appeal. The suit properties originally belonged to one Ramasami Pillai, the maternal grandfather of the Appellant-Plaintiff, who died on 8th August 1935, leaving his two widows Sivabagyathammal and the first Defendant Seshammal. His only daughter Pichaiammal through Sivabagyathammal, the mother of the Appellant-Plaintiff, predeceased him. The two widows Sivabagyathammal and Seshammal entered into a registered partition deed, the original of exhibit A-1, dated 15th July 1936. The lower Court has found that it is an absolute partition and a perusal of the same clearly supports the said findings; and in fact, the learned Advocate for the Appellant-Plaintiff did not dispute it. Sivabagyathammal and the 1st Defendant Seshammal alienated some of the properties belonging to their husband under the sale deed exhibit B-6, dated 16th July 1936, that is the day after the partition in favour of Periaswamy , the brother of Sivabagyathammal. These properties are not covered by the partition deed. Defendants 7 and 8 are now interested in the said properties by right of purchase. On 20th November 1948, Sivabagyathammal executed the pettlement deed exhibit A-2 in favour of the Appellant-Plaintiff in respect of items 14, 16, 17, 19 to 22, 26 to 30 and half of 33. On 12th February 1959, Seshammal executed the settlement deed the original of exhibit A-11, in favour of her sister''s sons, Defendants 2 to 5. Apart from the joint alienation under exhibit B-6 and the settlement deed referred to above, each of the widows Sivabagyathammal and Seshammal has made several alienations. Thus Sivabagyathammal has executed the original of exhibit A-35, dated 19th August 1936, in respect of items 32 and 40, exhibit B-14, dated 19th August 1936, in respect of item 31, exhibit B-22, dated 30th November 1936 in respect of items 13, 18 and 24, the original of exhibit A-37, dated 20th August 1939, in respect of part of item 15, the original of exhibit A-38, dated 20th August 1939, usufructuary mortgage in respect of items 23 and 25, and the original of exhibit A-36, dated 20th August 1939 in respect of the remaining part of item 15. The 1st Defendant Seshammal has executed exhibit B-33, dated 20th June 1937, in respect of item 41 exhibit B-41, 20th June 1937, in respect of item 42, exhibit B-21, dated 8th August 1937, in respect of item 43, exhibit B-44, dated 13th November 1910, in respect of items 44 to 46, the original of exhibit A-4, dated 19th November 1942, in respect of items 34 and 35, and exhibit B-5 (original of exhibit A-5), dated 30th March 1944 in respect of item 36.

In respect of the alienation under the original of exhibit A-4 concerning items 34 and 35, the Appellant-Plaintiff instituted Original Suit No. 189 of 1945, on the file of the Court of the Subordinate Judge of Tiruchirappaili, as ''the nearest reversioner to the estate of Ramasami Pillai and got a decree that this sale is not binding on the estate of Ramasami Pillai, and the decree and judgment was confirmed by this Court in exhibit A-10.

So far as the 6th Defendant, the Kulitalai Bank, is concerned, it is clear from paragraph 23 of the judgment of the trial Court that the Advocate representing the Bank has filed a memo, that the mortgage debt due to the Bank has been fully paid and that the Bank is not at all interested in any of the suit properties. The trial Court has rightly held that the Appellant-Plaintiff''s prayer for injunction restraining Defendants 1 to 6 bring some of the properties to sale had become infructuous.

So far as the settlement deeds executed by Sivabagyathammal and Seshammal are concerned, the Appellant-Plaintiff claimed rights under the settlement deed executed by Sivabagyathammal and questioned the settlement deed executed by the 1st Defendant Seshammal. In this litigation we are not concerned with the validity of the settlement deed in favour of the Appellant-Plaintiff and it is unnecessary to consider the question whether in the unlikely event of the Appellant-Plaintiff not being the actual reversioner to the estate of Ramaswamy Pillai, the settlement deed is liable to be attacked. So far as the settlement) deed the original of exhibit A-11 is concerned, it came into existence on 12th February 1050, after the Hindu Succession Act came into force. Seshammal has given evidence that she had executed that Settlement deed. u/s 14 of the Hindu Succession Act, she will be entitled to an absolute right in respect of the properties in her possession. It is in this view the trial Court has upheld the validity of the settlement deed executed by Seshammal in respect of the properties in her possession, hut held that it is not valid or binding in respect of the properties dealt with by the co-widow Sivabagyathammal under exhibit A-2.

A reading of the plaint clearly shows that this is not a suit by a presumptive reversioner for declaring the alienations made by the limited owner are not binding on the estate of the last owner Ramaswami Pillai. We have already referred to the prayer in the plaint. The basis for the claim made by the Appellant-Plaintiff is found in paragraphs 18 to 20 of the plaint. It is stated in paragraph 18 that as succession had not opened after Ramasami Pillai''s death without leaving male issues, leaving widows, and the estate had not vested in a male heir at the commencement of the Hindu Succession Act, Section 8 immediately applied and opened the succession, and vested the properties in the Plaintiff, 1st Defendant the co-widow though alive at the commencement of the said Act, and one of the heirs mentioned in class I of the said schedule to the Act, cannot take the properties, because she was not possessed of the properties at the commencement of the Act, and had alienated the properties under the partition, dated 15th July 1936, in favour of her co-widow the said Sivabhagyathammal who in her turn had alienated the same under powers expressly conferred by the document. It is stated at the end of that paragraph that by her (first Defendant''s) conduct the first Defendant has precluded herself totally and for even getting back the properties alienated by her under the partition deed aforesaid.

In paragraph 19 of the plaint, it is stated that the Plaintiff is entitled to partition and possession of one half share of the properties in the possession of the first Defendant at the commencement of the Hindu Succession Act with mesne profits by virtue of Section 8 of the said Act as heir of Ramasami Pillai.

In Karpagathachi and Others Vs. Nagarathinathachi, . It WAS held:

Under the Hindu law as it stood in 1924, two widows inheriting their husband''s properties took together one estate as joint tenants with rights of survivorship and equal beneficial enjoyment. They were entitled to enforce a partition of those properties so that each could separately possess and enjoy the portion allotted to her.

It was held in that decision:

Neither could, without the consent of the other, enforce an absolute partition of the estate so as to destroy the right of survivorship.

The Supreme Court relied on the decision of this Court in Ramakkal v. Ramaswami Naicken (1899) ILR Mad. 522 and held:

But by mutual consent they could enter into any arrangement regarding their respective rights in the properties during the continuance of the Widow''s estate, and could absolutely divide the properties so as to preclude the right of survivorship of each to the portion allotted to the other.

The partition effected by the two widows Sivabagyathammal and Seshammal under the original of exhibit A-1 is an absolute partition of that character destroying the right of survivorship inter se between the two widows. The principles enunciated at page 108 of Mulla''s Hindu Law, thirteenth edition are applicable in such a case. It is clearly stated therein:

...It is possible for two co-widows, by an agreement among themselves to mane an absolute partition of their joint estate so as to extinguish the right of survivorship-inter se. But any alienation on the strength of such arrangement will not affect the rights of the reversioners in any way.

It is seen from page 108 of Mulla''s Hindu Law thirteenth edition that:

Two or more widows succeeding as co-heirs to the estate of their deceased husband take as joint tenants with rights of survivorship and equal beneficial enjoyment.

It is clear from page 109 of the same book that on the same principle, daughters who are entitled to succeed after the widows do not inherit until all the widows are, 4eed. In Nagamma v. Ponnuchinnayyan ILR (1969) Mad. 507 Natesan, J., had to consider the nature of the estate taken by two widows after the coming into force of the Hindu Sucession Act. At page 520 of the decision he has pointed out that the estate of two widwos who took their husband''s property by inheritance is one estate and that the rule of survivorship which existed between co-widows really follows from or is the practical result of the fact that on the coming to the end of the life estate of one widow take the property. Section 19 of the Hindu Succession Act which deals with mode of succession of two or more heirs, provides for co-heirs taking the property as tenants in common and not as joint tenants; but it is only prospective and not retrospective. It is true that having regard to Sections 14, 15 and 16 of the Hindu Succession Act, the right of survivorship cannot exist if the widows are alive after coming into force of the Hindu Succession Act. In fact, the decision of Natesan J. in Nagama v. Ponnuchinnayyan ILR (1969) mad. 507 related to such a case. It was held in that decision that the rule of survivorship among co-widows, though not expressly taken away by the Act, cannot operate as it is incompatible with the absolute heritable estate conferred under the Act and that such a view is inevitable on a proper interpretation of Sections 14, 15 and 16 and in the light of the provisions contained in Section 4(1) of the Act. But in the present case Sivibagyathammal died before the Hindu Succession Act came into force and but for the absolute partition under the original of exhibit A-1, the properties got by her under the partition would have devolved on the 1st Defendant Seshammal. It is on account of the fact that it is an absolute partition that he could convey whatever rights she had in some of the suit properties to the Appellant Plaintiff under exhibit A-2.

The contention of the learned Advocate for the Appellant-Plaintiff that the Appellant-Plaintiff is entitled to half share in the estate of Ramaswamy Pillai or that he can succeed to the rights of Sivabagyathammal by virtue of Section 8 of the Hindu Succession Act is hardly tenable. In Sampathkumari v. Lakshmi Ammal ILR (1962) Mad. 832 a similar contention was put forward before a Bench of this Court and it was negatived as seen from the following passage at page 838:

The argument of Mr. Gopalaswami Ayyangar that on the coming into force of the Hindu Succession Act Section 8 must be applied and, in this case, the daughter (Plaintiff) also should get a half share in the properties of Muthuswami Chettiar along with his two widows is really based upon two assumptions: First, that the operation of Section 8 is really retrospective and Section 14 can be given effect to only in cases where the propositus dies after the Act came into force. The second assumption can be readily, seen to be a fallacy because Section 14 in terms applies not only to estates held by widows by reason of inheritance by the death of the male owner after the Act came into force, but it also applies to estates held by widows in the case of death of male owners having taken place already. This dual application of Section 14 would be nullified if we accept the argument of Mr. Gopalaswami Ayyangar and hold that even though the widows in this case had inherited the properties of their husbands even before the Act came into force they would have to give up a half share in the properties to the daughter because under the Hindu Succession Act the daughter takes simultaneously with the widows.

It is clear from this decision that the contention of the learned Advocate for the Appellant-Plaintiff in that case proceeded on the basis that Section 8 was intended to be retrospective in operation and reliance was also placed on the words a male dying intestate. It is clearly pointed out in that decision that:

It is only for the limited purpose of ascertaining the reversionary heirs that a fiction has been created by which the deceased person is deemed to have lived up to the date of the death of the female heir who immediately succeeds him. It if well known that a fiction in law cannot be relied upon for any purpose other than the limited purpose for which law has sanctioned the creation of such fiction.

In the decision in Eramma Vs. Verrupanna and Others, it has been held by the Supreme Court that Section 8 of the Hindu Succession Act is not retrospective and that is must be construed in the light of the words used in Section 6 of the Act. For the foregoing reasons the Appellant-Plaintiff cannot claim to succeed to the estate of his maternal grandfather Ramasami Pillai till the reversion opens after the death of the 1st Defendant Seshammal, the surviving widow. He cannot inherit the share of his maternal grandmother fivabagyathammal by invoking Section 8 of the Hindu Succession Act, which is not retrospective in its operation.

We have already pointed out that the suit is not by a presumptive reversioner for declaration that the alienations made by the limited owners are not binding on the estate of Ramasami Piilai. We have rejected the contention of the Appellant-Plaintiff that he is entitled to succeed to the share of his maternal grandfather''s estate so far as the share of Sivabagyathammal as representing the moiety of the estate of Ramaswamy Piilai is concerned by virtue of Section 8 of the Hindu Succession Act. Hence the suit has to be dismissed as not maintainable. It is true that the Plaintiff has got some rights under exhibit A-2 and the trial Court has proceeded on the footing that it is valid. But there is no appeal against it. We have already pointed out that in case the Appellant-Plaintiff does not happen to be the actual reversioner there might be litigation about it but we are not concerned with it in this appeal.

Even assuming the suit is one by a presumptive reversioner for declaring the alienations by the widows as not binding on the estate of Ramasami Pillai, the suit has to be filed within twelve years of the date of alienation both under Article 125 of the Indian Limitation Act, 1908, and under Article 108 of the Limitation Act, 1963. The present suit is governed by the Indian Limitation Act (IX of 1908). It is clear from what we have already stated that the alienations in this case, except the settlement deed executed by the 1st Defendant in favour of Defendants 2 to 5 under the original of exhibit A-11, are all beyond twelve years prior to suit. Hence such a suit would be clearly barred by limitation. So far as the settlement deed under the original of exhibit A-11 is concerned, we have given reasons for concurring with the finding of the trial Court that Seshammal became absolutely entitled to the properties covered by it as they fell to her share under the partition deed, original of exhibit A-1, and she remained in possession of the said properties after the Hindu Succession Act came into force. But it is clear from what we have already stated that the suit is not by the presumptive reversioner for declaration that the alienations made by the limited owners are not binding on the ultimate reversioners. Hence it is unnecessary to go into the correctness of the findings of the trial Court as to whether the several alienations made by Sivabagyathammal and Seshammal referred to in the earlier part of the judgment are really binding on the estate of Ramasami Pillai. It is open to the ultimate reversioner, if any, to agitate the same, if so advised. The finding of the learned Principal Subordinate Judge at the end of paragraph 29, at page 14 of the printed judgment, that the alienees have acquired title by adverse possession to such of the suit properties as are in their possession can hardly be supported. If the alienations are invalid and not binding on the estate of Ramasami Pillai, it is open to the ultimate reversioners to question them and such a suit could be filed within twelve years from the date of death of the 1st Defendant Seshammal. It is needless for us to state that having regard to the nature of the suit filed by the Appellant-Plaintiff, it was unnecessary for the trial Court to have given findings about the validity of alienations.

In the result, the appeal fails and it is dismissed with costs, one set.