Sivaprakasam Mudaliar vs Selvaraj Padayachi and Others

Srinivasan, J.—Three questions are raised by learned Counsel for the appellant. The appellant is a purchaser of the suit property under

Ex.B.1, dated 31.7.1969 from one Parthasarathy Naicker, who in turn purchased the property from one Natesa Padayachi under Ex.B.3 dated

26.9.1958. Under Ex.B.2, Natesa Padayachi had purchased the property from one Kokilambal Ammal. The plaintiffs in the suit, who are the

respondents herein are the sons of Perumal Padayachi who was the son of Govindasamy. Govindasamy had a brother Manickam whose wife was

Kokilambal Ammal referred to above. Manicka Padayachi and Govindasami Padayachi had acquired properties by joint exertion and in a partition

in 1940 amongst themselves they divided these properties and the suit property along with some other properties were allotted to the share of

Manicka Padayachi. Manicka Padayachi died towards the end of 1940. Govindasami Padayachi filed a suit as the next friend of the first and

second plaintiffs herein on the file of Sub Court, Cuddalore for a declaration that a will dated 4.7.1940 left by Manicka Padayachi was true, valid

and binding on the defendants. Kokilambal Ammal was the first defendant and there were 3 other defendants with whom I am not concerned in

these proceedings. While Govindasami Padayachi put forward the Will dated 4.7.1940 as the last testament and Will of (Manicka Padayachi)

Manicka Padayachi''s last Will was dated 27.6.1937 which was registered on 30.6.1937 and the Will put forward by Govindasami Padayachi was

not genuine. In the course of the suit there was a compromise between the parties. The compromise decree is marked as Ex.A.1 in the present

proceedings.

Under Clause II of Ex.A.1, the Will dated 27.6.1937 executed by Manicka Padayachi and registered on 30.6.1937 was declared as the last

Will of Manicka Padayachi and both parties agreed that the said Will should be in force. Under Clause III, the property described in Schedule A

to the compromise decree which was the sixth item in the plaint, was to be enjoyed by Kokilambal Ammal without any encumbrance for her life

time and after her life to be taken by the plaintiffs and other brothers absolutely. It is not necessary for the purpose of this appeal to refer to any

other clause though Clause 13 of the compromise decree was very much under consideration in the Courts below. In my view that has no

relevance in this case.

Kokilambal Ammal alienated the property as referred to above under Ex.B.2. She died on 16.3.1964 and the present suit was filed on

11.4.1975 by the plaintiffs for declaration of their title to the suit property and for recovery of possession besides profits. The trial Court granted a

decree in favour of the plaintiffs which was affirmed by the appellate Court.

In this second appeal three questions are raised as stated in the beginning. The first point argued by learned Counsel for the appellant is that the

judgment of the lower appellate Court is vitiated for want of framing of a point for consideration by the appellate Judge. After setting out the

pleadings of both the parties and the conclusion of the trial Court, the appellate Judge proceeded to discuss the merits of the case and the evidence

on record. Ultimately he gave a finding that the plaintiffs had title to the property and the judgment of the trial Court had to be affirmed. Learned

Counsel for the appellant contends that under Order 41, to Rule 31 of the CPC it is the duty of the Court to frame the points for consideration and

to give finings thereon with reasons to support those findings. I am of the view that in the present case the judgment is not vitiated for want of

framing of such a point. Though a point has not been framed by the appellate Judge, he has considered the entire evidence on record and

discussed the same in detail and ultimately came to the conclusion. His findings are supported by his reasons. Hence there is substantial compliance

with the provisions of Order 41, Rule 31, CPC and the judgment is not in any manner vitiated by the absence of a point.

The second contention of learned Counsel for the appellant is that by virtue of Section 14 of the Hindu Succession Act 30 of 1956,

Kokilambal''s estate enlarged into an absolute one and she was entitled to alienate the same as she had done with the result that the plaintiffs had

lost whatever rights they had under Ex.A.1, the compromise decree. According to learned Counsel under Ex.A.1, a limited estate was given to

Kokilambal Ammal for life enjoyment and it was in recognition of her pre-existing right in the properties and consequently Section 14(1) of the

Hindu Succession Act was attracted to such properties. There is a fundamental fallacy in the contention put forward by learned Counsel for the

appellant. A reading of Ex.A.1 shows that no property was given to Kokilambal Ammal under that document. She got the properties under the

Will of her husband Manicka Padayachi dated 27.6.1937. Admittedly under the Will, she had absolute interest in the properties. Clause II of

Ex.A.1 affirms the Will and recognizes the validity thereof with the result that the absolute interest of Kokilambal Ammal under the said Will was

acknowledged by the parties to the compromise. Under Clause III of Ex. A.1 Kokilambal Ammal restricted her right to enjoyment for life and

conferred the vested remainder on the plaintiffs in that suit This is a case where Kokilambal Ammal gave certain properties under Ex.A.1, the

compromise decree, to the plaintiffs and this is not a case where Kokilambal Ammal obtained a limited interest in certain properties under the

compromise. If Kokilambal Ammal had got a limited interest under Ex.A.1, certainly it would have enlarged into an absolute estate u/s 14 of the

Hindu Succession Act. But as pointed out by me, it is clear from a reading of the document Ex.A.1 that the persons who got properties under the

said document were the other parties to the suit O.S.No.9 of 1941 and not Kokilambal Ammal. She got her properties under the Will of her

husband absolutely and she chose to create certain estate in favour of other parties to the suit.

Learned Counsel for the appellant places reliance on a judgment of mine in A. Pakkiathammal v. T. Ramasamy (1988) 2 L.W. 139. That was a

case in which disputes arose between one Vinayakathammal and her step mother with regard to the property left by Vinayakathammal''s father. By

a registered agreement dated 12.4.1956 the step mother agreed not to alienate the properties set apart for her enjoyment excepting a extent of one

acre and 20 cents and in the event of any absolute necessity, she could encumber the said extent of one acre and 20 cents. With regard to the

other properties it was agreed by her that she had no right to alienate under any circumstances. I construed the document and held that under the

document the step mother only declared what was the position in law and she did not in any manner restrict her interest in the properties. I took the

view that under law as it stood then, she had a woman''s estate and hence she had declared that she would not alienate. There was no restriction of

the estate which she had already under the law. In those circumstances, I held that the provisions of Section 14(1) of the Hindu Succession Act

were attracted. That judgment has no bearing whatever on the present case. This is not a case in which Kokilambal Ammal obtained any estate

under Ex.A.1. On the other hand her absolute estate obtained by her under the Will of her husband is restricted to one of life enjoyment by her

with a vested remainder in favour of the plaintiffs in O.S.No.9 of 1941. Hence Section 14 of the Hindu Succession Act has no application to the

present case. The rights obtained by the plaintiffs under Ex.A.1 would prevail even after the passing of the Hindu Succession Act 30 of 1956. In

exercise of those rights, the present suit has been filed and the alienation of the property during her life by Kokilambal Ammal would not enure

beyond her life time. Consequently the plaintiffs are entitled to get possession of the properties from the persons who are in occupation thereof.

The third contention urged by learned Counsel for the appellant is that the defendant and his predecessors in title had perfected title by adverse

possession. There is no substance in this contention as Kokilambal Ammal died only on 16.3.1964 and the present suit has been filed in April,

1975 within 12 years from the date of her death. Adverse possession could not run during the life time of Kokilambal Ammal as she was entitled to

be in possession till her death. If adverse possession had commenced on the date of her death it had not perfected into title on the date of present

suit. Hence the plea of adverse possession has to fail.

I find the second appeal has to suffer dismissal and accordingly it is dismissed. No costs.