K.S. Subramania Pillai and Others vs E.S.R. Packirisami Pillai

Nainar Sundaram, J.—The decision in this appeal turns on the answer to the question as to whether Section 14(1) of the Hindu Succession

Act 30 of 1955, hereinafter referred to as the Act, or Section 14(2) of the Act, should be applied to the facts of the case. The plaintiff in the suit

O.S. 47 of 1977, on the file of the subordinate Judge, Nagapattinam, preferred this appeal, against the judgment and decree in the suit. During the

pendency of the appeal, the plaintiff died and his legal representatives have been brought on record. The defendant in the suit is the respondent

herein. To arrive at the decision, necessary facts have got to be set out. The suit property takes in a site of an extent of 32-1/2 cents and the

superstructures standing thereon. The suit property admittedly belonged to one Sundaram Pillai, who died on 18-7-1942. His wife was one

Soundarathammal. The couple had no issue. The plaintiff was the son of the elder brother of Sundaram Pillai. The defendant is the son of the

brother of Soundarathammal. Soundarathammal died on 5-3-1975. On 14-4-1937 as per Ex. B-1, Sundarm Pillai executed a Will, disposing of

his properties including the suit property. The suit property is admittedly Item 8 of A schedule in Ex. B-1. The disposition of A Schedule Ex. B-1

which takes in the suit property, as Item 8 thereof, has been done in the following manner--(Matter in vernacular omitted -- Ed.)

According to the defendant, the present superstructures were constructed by Soundarathammal. As we could see from the above recitals,

Soundarathammal was given a life interest with no power of alienation, and after her lifetime, the suit property was directed to go absolutely to the

plaintiff alone. Soundarathammal executed a will on 3-1-1951 as per the original of Ex. B-2 and on 25-11-1974, as per Ex. B-3,

Soundarathammal left a codicil; the combined effect of Exs. B-2 and B-3 being the suit property should devolve on the defendants after the demise

of Soundarathammal. The conflicting claims to the suit property arose obviously after the demise of Soundarathammal. The plaintiff laid the suit for

declaration of title and recovery of possession on the basis of Ex. B-1. The defendant would take cover under Exs. B-2 and B-3 and resist the

claims of the plaintiff. It is true that the Court below on the pleadings put forth by the parties raised a number of issues. The Court below ultimately

held that the estate given to Soundarathammal under Ex. B-1, enlarged itself into an absolute estate on the coming into force of the Act and the will

of Sundaram Pillai Ex. B-1 could not be availed of by the plaintiff to seek the reliefs as he did. As a result, the suit of the plaintiff was dismissed

with costs.

Mr. B. Kumar, learned counsel appearing for the present appellants legal representatives of the plaintiff, would submit that the recitals in Ex. B1

are unambiguous and specific and they have not countenanced any pre-existing right against property in Soundarathammal, and the recitals must

alone govern her rights, and if so governed she got only a restricted estate within the meaning of Section 14(1) of the Act, and hence the estate

could not be held to have got enlarged as per Section 14(1) of the Act. As against this Mr. R.G. Rajan, learned counsel for the defendant-

respondent, herein would submit that Soundarathammal had a right to maintenance not only from her husband Sundaram Pillai, during his lifetime,

but also from the successors in interest to his estate and that right was a tangible right against property and when Sundaram Pillai executed Ex. B1

and gave the suit property to Sundarathammal, that was done only in reiteration and confirmation of the preexisting right of Soundarathammal

against the property and Section 14(2) of the Act could not come in the way of Section 14(1) of the Act taking the field and making the estate

acquired by Soundarathammal enlarging itself into an absolute estate.

There are certain features, which have to speak, and if I take note of them I find that the stand expressed by the learned counsel for the

defendant cannot be accepted. The first feature is, the, recitals in Ex. B1 do not refer to any pre-existing right of Soundarathammal against

property, such as her right to maintenance, so as to say, that it was only in recognition, thereof, or in confirmation and reiteration thereof, the suit

property was given to her in the manner done under Ex. B 1. If we go by the express recitals of in Ex. B 1 it is not possible to spell out a theory

that the disposition under Ex. B 1 of the suit property in favour of Soundarathammal, was done to confirm, endorse, declare or recognise any pre-

existing right of Soundarathammal against property. It will be proper and safer to go by the express recitals found in the document itself to find out

as to whether only in recognition of any pre-existing right against property the disposition could be stated to have been made. Another feature,

which speaks against the case of the defendant is that there is no pleading at all that only in recognition or confirmation or declaration of any pre-

existing right of Soundarathammal against property, the suit site was given to her under Ex. B1. While deciding this question, the parties are bound

by their pleadings, unless the express recitals in the deed do support their cases one way or the other. Here, the express recitals do not in any way

indicate that the disposition was in confirmation or reiteration or declaration of any pre-existing right of Soundarathammal, against property, such as

her right to maintenance. In my view, the recitals being unambiguous and there being no pleading on the part of the defendant that the disposition

under Ex. B 1 was only in confirmation, reiteration and declaration of any pre-existing right of Soundarathammal against property, there is no

scope for invoking the aid of Section 14( 1) of the Act and on the facts of the case, the rigor of Section 14(2) alone must rule. The third feature is

that even assuming that without pleadings, evidence could be let in, which proposition will certainly offend the well accepted norm in this behalf, I

find that the defendant has not placed any evidence at all that the disposition of the suit site under Ex. B 1, was intended to reiterate, declare and

confirm any pre-existing right of Soundarathammal against property, such as her right to maintenance. It is only in this connection Mr. B. Kumar

learned counsel for the present appellants, would point out that Soundarathammal by herself owned properties and there could have had been no

intention on the part of Sundaram Pillai and no necessity at all to reiterate a provision for maintenance for Sundarathammal.

Mr. R.G. Rajan, learned counsel for the respondent defendant, would submit that the absence of express recitals need not be conclusive and

this court has taken note of circumstances also to uphold the plea that life interest given to a woman under a document could be in reiteration,

confirmation and declaration of her preexisting, right against property. In this connection Mr. R.G. Rajan, learned counsel for the defendant, would

place reliance on a pronouncement of a Bench of this court in Sri Mahaliamman Temple and Vigneswaran Koil and Another Vs. Vijayammal, .

There the facts of the case were entirely different. There was in fact, a claim for maintenance by the daughter-in-law and that was recognised by

the father-in-law, who had earlier executed the will, giving the daughter-in-law a life estate only in the properties concerned. Taking note of that

factor, the Bench opined that the father-in-law must be deemed to have given the properties concerned only as provision for maintenance. The law

on the subject has been settled with clarity and in detail in Tulasamma v. Sesha Reddi AIR 1977 SC 1944, and on the facts of that case, which

took in a compromise arrived at between the parties, allotting the properties in question to the woman for her maintenance and giving her limited

interest in such properties, the Supreme Court held that such allotment in lieu of her maintenance was in recognition of her right to maintenance,

which was a preexisting right, and therefore, the case of the women would be taken out of the ambit of Section 14(2), and would fall squarery

within Section 14(1) read with the explanation thereto. Such is not the case here. No material has been exposed in the case by the defendant to

demonstrate that the suit property was given to Soundarathammal in reiteration, confirmation or in declaration of any preexisting right of hers

against property. Neither the recitals in Ex. B 1 nor the pleadings put forth by the defendant nor the evidence placed by him supports such a

theory. This being the case, I am not able to appreciate and sustain the line of thinking by the court below when it upheld the claims of the

defendant that by virtue of Section 14 (1) of the Act, the estate derived by Soundarathammal, under Ex. B 1 enlarged itself into an absolute estate

so as to upheld the title of the defendant under Exs. B 1 an B 3. The result is the plaintiff has to succeed.

However, learnd counsel for the defendant would submit that the finding of the court below is that the present superstructure was put up by

Soundarathammal alone and the claims of the defendant at least over the same must be upheld. Learned counsel would plead that in any event the

plaintiff must be called upon to pay the value of such superstructures before he obtains possession. Soundarathammal from the inception had only a

life interest. If she had done any improvements including putting up of new superstructure, demolishing the old, she must be deemed to have done it

only as a holder of life interest, and the improvement must pass on the reversioner or remainderman at the expiration of the life interest, without any

liability on his part to make compensation therefor, to those claiming under Soundarathammal. It is not claimed by the defendant even in the

alternative that Soundarathammal made the improvements believing in good faith that she was absolutely entitled to the suit property. The

defendant could not claim a better right than that of Soundarathammal as a successor to the estate of Soundarathammal, even as per Exs. B 2 and

B 3. The defendant must be presumed to know the nature of the title, of Soundarathammal. The putting up of superstructures by

Soundarathammal, in my view, could not be taken note of to deny the plaintiff the relief of possession of the suit property as a whole as asked for

by him. Accordingly, this appeal is allowed, setting aside the judgment and decree of the trial court, Mr. B. Kumar learned counsel for the present

appellants, has today made an endorsement on the memorandum of grounds of appeal with regard to the claim of the plaintiff for mesne profits,

past and future, in the following terms :--

The plaintiff gives up the past and future mesne profits as no evidence has been let in, in that regard.

This is recorded In the peculiar facts and circumstances of the case, and taking note of the relationship between the parties, I deem it just and

proper to direct them to bear their costs throughtout. As a result, there will be a decree in favour of the plaintiff in the suit, declaring the plaintiff to

be the owner of the suit property and consequentially the defendant is directed to put the plaintiff in possession of the same. As already stated the

parties are directed to bear their respective costs, both in the suit as well as in this appeal.