Dismissed

Chidambaranathan v. Mohan

Madras HC4 Oct 2019SA/551/1995

Case brief

AI extract

What is this about?

A second appeal regarding ownership of suit properties was filed by defeated defendants challenging a decree declaring the plaintiff as the absolute owner via a will. The Court answered framed questions, finding the testator enjoyed the properties as full owner and the last owner had no male descendants, thus validly bequeathing the entire property.

What did the court decide?

Second Appeal dismissed; judgment and decree in favour of the plaintiff confirmed.

Chidambaranathan Vs Mohan — Succession and Inheritance | Madras HC (2019)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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[RESERVED ON : 21.06.2019]

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[PRONOUNCED ON : 04.10.2019]

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CORAM:

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THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

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S.A.No.551 of 1995

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Chidambaranathan
2. Aboorvam Ammal ... Appellants/Defendants 2 & 3
.. Vs ..
1. Mohan ... 1st Respondent/Plaintiff
2. Rasappan ... 2nd Respondent/1st Defendant

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Prayer : Appeal is filed under Section 100 of the Civil Procedure Code against the judgment and decree dated 28.10.1992 passed in A.S.No.29 of 1989 on the file of the learned Additional District Judge, Pondicherry, reversing the judgment and decree dated 29.11.1988 passed in O.S.No.78 of 1985 on the file of the learned Principal District Munsif, Karaikal.

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For Appellants : Mr.V.Virumandi
for Mr.Radha Gopalan
For R-1 : Mr.P.Srinivasan
For R-2 : Died
JUDGMENT

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The defeated defendant Nos.2 and 3 are the appellants herein challenging the judgment and decree dated 28.10.1992 passed by the learned Additional District Judge, Pondicherry, in A.S.No.29 of 1989, reversing the judgment and decree dated 29.11.1988 passed by the learned Principal District Munsif, Karaikal, in O.S.No.78 of 1985.

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The first respondent herein has filed a suit in O.S.No.78 of 1985 before the learned Principal District Munsif, Karaikal, seeking for declaration to declare that he is the absolute owner of the suit properties and for consequential relief of permanent injunction against the defendants.

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The plaint proceeds on the basis that the suit properties originally belonged to Ganapathiya Pillai, who died on

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26.10.1984. The defendants are the distance relatives of Ganapathiya Pillai, who had no issues and the plaintiff was brought up by him from his childhood and was treated as his adopted son. On 26.05.1971, the said Ganapathiya Pillai had executed a registered Will bequeathing all his house and the agricultural lands mentioned in the plaint schedule to the plaintiff. Even after the execution of the Will, Ganapathiya Pillai sold five mahs of agricultural land which was covered under the Will. Hence, the plaintiff has filed the suit for declaration and for consequential relief of injunction. The first defendant, who was the tenant, remained ex-parte.

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The third defendant has filed written statement resisting the relief of declaration inter alia contending that the suit properties originally belonged to one Sornathammal, who by a Will dated 24.12.1928, bequeathed the same in favour of Nadesa Pillai and his wife Rukmaniammal without any right of alienation and inheritable by their male children. The said Nadesa Pillai and his wife died leaving behind the third defendant and Ganapathiya Pillai as their heirs. As per the Will, Ganapathiya Pillai had no right to alienate the properties. Ganapathiya Pillai had no issues and the properties were leased out to the first defendant and he was paying rent to Ganapathiya Pillai and after his death to the third defendant. Ganapathiya Pillai or his brother Sowriraja Pillai had no right to alienate the properties. The alleged Will is not genuine and valid. Under the customary Hindu Law, a person cannot alienate more than 1/8th share and the remaining 7/8th share should go to the legal heirs.

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Before the trial Court, necessary issues were framed and the learned Principal District Munsif, Karaikal, by a judgment dated 29.11.1988, decreed the suit and also granted injunction and the defeated defendants have filed an appeal in A.S.No.29 of 1989. The learned Additional District Judge, Pondicherry, by judgment dated 28.10.1992, allowed the appeal and remitted the matter for re-consideration, in the light of certain observation made by the Lower Appellate Court. Thereafter, after remand, again the matter was taken up and additional evidence has been filed and the trial Court dismissed the suit and hence, the plaintiff has preferred an appeal. In the appeal, the Lower Appellate Court has considered the rival submissions and held that Ganapathiya Pillai had absolute right to bequeath the suit properties in favour of the plaintiff and the Will of Ganapathiya Pillai is proved in the manner known to law and hence, the same is true and valid. Aggrieved against the said judgment and decree passed in A.S.No.29 of 1989, the defeated defendants 2 and 3 have preferred the above Second Appeal before this Court.

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At the time of admission, the following substantial questions of law were framed for consideration:

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(1) Whether the lower appellate Court has erred in holding that the plaintiff/respondent herein has prescribed absolute right to the properties when it is not the case of the plaintiff that he perfected title over the suit properties by adverse possession and continuous enjoyment?

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Whether Ganapathia Pillai can dispose of more than 1/8 th on the principle of 'Quotite Disponsible'?

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Heard both sides and perused the records.

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The case of the first respondent herein/plaintiff solely rest upon two documents viz., Ex.B.7-Will executed by Sornathammal as required under the French Law dated 24.12.1929. The other document is Ex.A.1-Will said to have been executed by Ganapathia Pillai in favour of the plaintiff by name Mohan.

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Substantial Question of Law No.1:-

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The suit properties consisting of two schedule while schedule 'A' is Nanja land measuring 5 mahs, schedule 'B' is the residential house.

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The admitted factual matrix of the case is that the suit properties originally belonged to one Sornathammal, who by a Will dated 24.12.1929 bequeathed the same in favour of Nadesa Pillai and Rukmaniammal with a condition that they should not alienate the same and it would devolve only upon the male descendants and without any right of alienation, Ganapathiya Pillai got the properties from his father namely, Nadesa Pillai. He had no issues and was enjoying the suit properties. The third defendant is the sister of Ganapathiya Pillai. The plaintiff claims to be the adopted son of Ganapathiya Pillai and rests his claim on a Will dated 26.05.1975 wherein Ganapathiya Pillai has bequeathed the suit properties absolutely to him.

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Learned counsel appearing for the appellants/defendants 2 and 3 would contend that Sornathammal by her Will dated 24.12.1929, which is marked as Ex.B.1 and the translation of which is marked as Ex.B.2 and the original having been sent for from the registry and marked as Ex.B.7 bequeathed only the right of enjoyment to Nadesa Pillai and Rukmaniammal with a stipulation that they should not alienate it and it should devolve upon the male descendants who also should not alienate the same. It is contended by the third defendant that

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Ganapathiya Pillai had no right to bequeath the properties as per the Will of Sornathammal.

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This Court perused the documents Ex.B.1 and Ex.B.2. It appears that during the first round of litigation, in A.S.No.23 of 1986, the learned Additional District Judge, Pondicherry, has observed that Sornathammal herself has no right over the properties since it belonged to her deceased husband. With the said observation, the matter appears to have been remitted back to the Trial Court to investigate upon the said contention and also to find out whether Sornathmmal's husband had any reversioners and also to investigate whether Nadesa Pillai father of Ganapathiya Pillai could dispose of the entire property to Ganapathiya Pillai when he had two sons namely, one Ganapathiya Pillai and Woriraja Pillai and two daughters viz., the third defendant and Packiathammal and whether such disposition has exceeded the principle of 'quotite' disponsible.

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On a close scanning and scrutiny of Ex.B.7, the original Will executed by Sornathammal before the naotaire as per the French Law, it appears that this document is dated 24.12.1929. A reading of both the French and Tamil versions does not lead to any conclusion that Sornathammal has taken the properties from her husband. It is only written that she bequeathed the right for 'usufruit' in the properties to Nadesa Pillai and Rukmaniammal.

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It appears that the recitals in Ex.B.7-Will is that she bequeathed only the right of 'usufruit' of the properties in her possession. It is nowhere stated that she was in possession of her husband's property. How she got the properties is not mentioned in the Will. Merely because of the fact that she only bequeathed the right for 'usufruit' in the properties will not lead to the conclusion that the properties belonged to her husband. Under the Customary Hindu Law, a widow can have her own properties.

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At this juncture, it is useful to refer to relevant law under French Code of Civil.

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According to the French Law, a person can bequeath the right for 'usufruit' separately. 'Usufruit' itself means 'the right to enjoy a thing belonging to another without any properties' right and with a duty to conserve the substances'. The fact that the 'usufruit' was bequeathed in the year 1929 to Nadesa Pillai and after Nadesa Pillai, it was enjoyed by Ganapathiya Pillai for all these years is an important fact to be considered for interpreting the rights of the parties. As per the Customary Hindu Law, it would revert back to the heirs of her husband thereby the heirs of her

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husband ought to have taken possession of the right of his 'usufruit'. When once it is not done, Nadesa Pillai, who was enjoying the 'usufruit' would be enjoying the same exercising the right over the 'usufruit' and also the corpus of that property. If there is evidence to show that Nadesa Pillai enjoyed the property, both corpus ad 'usufruit' as owner, then the prescription will come into operation. For all these years Nadesa Pillai and subsequent to him Ganapathiya Pillai were enjoying the property absolutely as owners.

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Thus, on the given set of the case as borne out by the documentary evidence, this Court finds that the testator has enjoyed both corpus and 'usufruit' and both got merged and accordingly, these factors would clearly demonstrate that corpus and 'usufruit' got merged even at the time of Nadesa Pillai and they have been enjoyed as full owner.

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At this juncture, it remains to be stated that after remand by the Lower Appellate Court, as stated supra, no reversioners of Sornathammal was traced and it is also not possible as it is more than seventy years old. The only fact that no reversioners of Sornathammal's husband claimed the properties on the death of Sornathammal all these years has to be considered to hold that the properties have been enjoyed in absolute by Nadesa Pillai and Ganapathiya Pillai.

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Therefore, the contention of the learned counsel in support of the first substantial question of law does not holds to ground, since the finding arrived at by the Trial Court that in the absence of anything to indicate under Ex.B.7-Will, the said Sornathammal is the absolute owner of the suit properties and as such, the Will executed by Sornathammal is valid. Furthermore, it is to be stated that D.W.1, in her evidence, has specifically admitted that Nadesa Pillai also bequeathed certain properties to her. Those properties bequeathed to her by Nadesa Pillai were got by him from Sornathammal under the Will. She has stated that "me;j capy;gona vd; mz;zd ; fzgjpf;Fk ; hpf;Fk ; fPiHa{h; fpuhkj;jpy; epyKk; tPLk; bfhLf;fg ;gl ;lJ". She further says that she was given 2 mahs 75 kuzhies of land by Nadesa Pillai by means of the Will under which Ganapathiya Pillai also got the suit properties. She states that "vd; jfg;gdhhpd; capy;gojhd vdf;Fk ; vd; rnfhjhpf;Fk ; brhj;J te;jJ". This admission of D.W.1 clearly shows that Nadesa Pillai was exercising his rights over the suit properties and other properties which he got from Sornathammal as absolute owner.

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Thus, this Court finds that D.W.1, who is also beneficiary by a Will executed by Nadesa Pillai cannot blow hot and cold to challenge the competency of the Nadesa Pillai and to execute the Will in favour of the first respondent/plaintiff. In view of the admission of D.W.1 that she has taken some properties under a Will of Nadesa Pillai treating Nadesa Pillai as a full owner, she cannot challenge the title capacity and competency of Nadesa Pillai to bequeath some other property to Ganapathiya Pillai. As both the appellants/defendants 2 and 3 and Ganapathiya Pillai derived the title to the respective properties under the same Will and hence, the finding of the Courts below that the Ganapathiya Pillai has competency to execute the Will and he enjoyed the properties as a full owner is well considered and well merited. In view of the recital in the said Will coupled with the admission of D.W.1 in the crossexamination, a similar finding rendered by the Lower Appellate Court is well considered and well merited and the same does not warrant any interference and this Court finds that the substantial question of Law No.1 does not arise, on the factual circumstances of the case and especially when recital under Ex.B.7 is clear to the effect and both the plaintiff and the third defendant viz., first respondent herein and the second appellant have derived title from one and the same Will viz., Ex.B.7 and hence, substantial question of law No.1 is answered in negation against the appellants/defendants 2 and 3.

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Substantial Question of Law No.2:Learned counsel appearing for the second appellant/third defendant would contend that Ganapathiya Pillai cannot dispose of the properties more than 1/8th on the principle of 'quotite disponsible' 'Quotite disponsible' is the principle of French Law read into the Customary Hindu Law whereby a male who has male descendents shall not dispose of more than 1/8th estate to the detriment of his male heirs. This principle of legitim is enshrined in the ancient Hindu Law also. But the condition is to apply the principle of 'quotite disponsible' to a male persons that he shall have male descendants. Once he has no male descendants, the principle shall not apply and he can only enjoy it as the absolute owner. In the present case, admittedly, Ganapathiya Pillai has no male issues and the plaintiff is only his adopted son. Even the adopted son was not legally made. So, Ganapathiya Pillai becomes absolute owner of the suit properties.

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In view of the admitted position that Ganapathiya Pillai has no male issues, the substantial question of law No.2 does not arise for consideration for the reasons discussed supra. Accordingly, the second substantial question of law is also held in negation against the defendants 2 and 3/appellants.

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With regard to proving of the Will-Ex.A.1 in favour of the plaintiff, the scribe and attestor of the Will have been duly examined as P.Ws.1 to 4 and their evidence inspire the confidence of the Court and having satisfaction of Section 63 of the Indian Evidence Act and 68 of the Indian Succession Act, the Lower Appellate Court has clearly held that Ex.A.1-Will is clearly proved in the manner known to law and accordingly, the relief granted by the Lower Appellate Court does not call for any interference. Accordingly, the Second Appeal is devoid of merits and the same is liable to be dismissed.

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In the result, the Second Appeal is dismissed and the judgment and decree dated 28.10.1992 passed by the learned Additional District Judge, Pondicherry, in A.S.No.29 of 1989, reversing the judgment and decree dated 29.11.1988 passed by the learned Principal District Munsif, Karaikal, in O.S.No.78 of 1985, is confirmed. No costs.

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-s/d-
Assistant Registrar(CCC)
True Copy
Sub-Assistant Registrar
Jrl
To
1. The Additional District Judge,
Pondicherry.
2. The Principal District Munsif,
Karaikal.
S.A.No.551 of 1995

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VD(CO) SP(05/06/2020)

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Chidambaranathan v. Mohan

Case brief

What is this about?

What did the court decide?

Chidambaranathan v. Mohan

Case brief

What is this about?

What did the court decide?

What the court decided

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