Varadappa Naicker vs Appavu alias Ramaswami Gaunder

The defendant is the appellant. The suit is for redemption, declaration and possession of the suit properties, with past and future mesne profits.

The plaintiff''s case is as follows: The suit properties, among others, belonged to one R. Sengoda Gounder, who died on 30-9-1932, leaving

behind him his only son Nattarayan and his junior wife Pappayyee alias Priya Kaliammal. The said Nattarayan is the son of the said junior wife.

Sengoda Gounder and his minor son usufructuarily mortgaged items 1 and 2 of the plaint schedule for Rs. 700 and Rs. 600 respectively on 21-9-

1932 (Exs. A-1 and A-2). After the death of Sengoda Gounder, his minor son also died on 16-5-1934. Thereafter, Pappayyee became entitled to

the properties. The plaintiff was the only nearest reversioner to the estate of the deceased minor Nattarayan. On 7-11-1944. Pappayee sold items

3 and 4 of the plaint schedule to the defendant under two sale deeds. Exs. A-3 and A-4. The plaintiff as reversioner filed O. S. 49 of 1945, Sub-

Court, Coimbatore for a declaration that the said sale deeds are not valid beyond the lifetime of Pappayee, and that they are not binding on him.

He obtained a decree declaring that the sale deeds are not valid beyond the lifetime of Pappayee. The said decree was confirmed by the High

Court in A. S. 512 of 1946. Pappyee died on 23-9-1965. The present suit is filed by the plaintiff, claiming to be the nearest reversioner of the

estate of late minor Nattarayan. Subsequent to the filing of the suit, the plaintiff on 24-11-1967, strengthened his title by obtaining a settlement

deed from Pavayee, the senior wife of Sengoda Gounder. The usufructury mortgage under Exs. A-1 and A-2 assigned his mortgage rights on 16-

5-1941 to one Venkitammal and the said assignee in her turn assigned the mortgage to the defendant on 10-2-1943 and the defendant is in

possession and enjoyment of the properties. The present suit for redemption, declaration of title and possession is filed. The case of the plaintiff is

that under the provisions of Madras Act IV of 1938, the two mortgages are liable to be scaled down and the entire principal having been wiped

out after the expiry of 30 years, the plaintiff is entitled to ask for the relief of declaration and possession of items 1 and 2; and items 2 and 3 of the

plaint schedule by virtue of the decree in O. S. 49 of 1945 and that on and from the date of death of Pappayee, the defendant is in wrongful

possession of the properties. The plaintiff has filed the present suit claiming the relief''s mentioned above.

The decree to the suit is that the plaintiff has no right to sue as Section 8 of the Hindu Succession Act. 1956, will apply even when a male to

whom succession is traceable dies before the Act and that Pavayee the senior wife of Sengoda Gounder takes precedence over the plaintiff in the

matter of succession. The further contention put forward is that the estate of Pappayee, which she inherited as a mother''s estate, became enlarged

u/s 14 of the Hindu Succession Act into an absolute estate and consequently the plaintiff is not entitled to maintain the suit. The defendant raised a

further contention that the suit as framed is not maintainable in view of the settlement deed executed by Pavayee, that he had effected

improvements on the properties and without payment of the mortgage amount and the cost of improvements effected, the suit for redemption is not

maintainable.

The trial Court held that the plaintiff is entitled to the suit properties that he s entitled to redeem the mortgages Exs. A-1and A-2 without

payment of the mortgage amount that the defendant is not entitled to the cost of improvements and that the suit is not barred by time and the

plaintiff is entitled to past profits as claimed by him.

The defendant filed A. S. 203 of 1969 before the Subordinate Judge, Erode. The learned Judge confirmed the decision of the trial Court and

dismissed the appeal. The defendant has filed the above second appeal.

R. Sengoda Gounder was the original owner of the suit properties. At the time of his death, he had two wives. viz., Pavayee and Pappayee, and

Nattaraya Gounder was the son by Pappayee. Shortly before his death, Sengoda Gounder and his minor son Nattaraya Gounder and his minor

son Nattaraya Gounder executed two usufructuary mortgages dated 21-9-1932 in favor of the defendant over items 1 and 2. The said mortgage

deeds are Exs. A-1 and A-2. On 16-5-1934, Nattaraya Gounder died. The result is that on the death of Nattaraya Gounder who was the last

male holder on 16-5-1934, Pappayee inherited the properties as his mother. Subsequent thereto on 7-11-1944 she sold the suit properties to the

defendant under two sale deeds Exs. A-3 and A-4. The plaintiff claiming to be the nearest reversioner, filed a declaratory suit questioning the

alienation''s made under Exs. A-3 and A-4 and obtained a decree to the effect that the said alienation''s are not valid beyond the lifetime of

Pappayee. Pappayee died on 23-9-1965 and long before here death on 7-11-1944 she had sold the suit properties to the defendant Act XXX of

1956 came into force on 17-6-1956. The contention of the learned counsel for the appellant is that the plaintiff has no right to sue as Section 8 of

the Act will apply even when the last male holder dies prior to the Act and that Pappayee being the step-mother of the minor Nattarayan (the last

male owner) would be the nearer heir. The question that arises is whether Section 8 of the Hindu Succession Act. 1956 is applicable when a male

Hindu dies intestate before the commencement of the Act.

The Supreme Court in Eramma Vs. Verrupanna and Others, held that Section 8 is not retrospective in operation and where a male Hindu dies

before the Act comes into force. Section 8 will have no application Again Supreme Court in Fateh Bibi v. Charandas, AIR 1970 SC 7899 in

dealing with the Hindu Law of Inheritance (Amendment) Act of 1929 held that the Act would be applicable even when a Hindu male dies intestate

before 21-2-1929, but is succeeded by a female heir who dies after coming into force of the Inheritance Act of 1929. The said principle was

applied by Ramanujam J. in Shanmughasundrathammal Vs. Narayana Konar and Others, to a case of the death of the last male holder before the

Hindu Succession Act. 1956 but his widow who succeeded to the estate dying after the coming into force of the Hindu Succession Act. It is seen

that the decision of the Supreme Court in Eramma Vs. Verrupanna and Others, is directly in point; but Ramanujam J. has applied in

Shanmughasundrathammal Vs. Narayana Konar and Others, the principle of the decision of the Supreme Court in Fateh Bibi etc. Vs. Charan

Dass, to a case u/s 8 of the Hindu Succession Act. If Section 8 of the Hindu Succession Act applies to the present case the first wife Pavayee

would exclude the plaintiff and by reason of Ex. B-1 the rights of Pavayee have passed to the plaintiff. If on the other hand. Section 8 does not

apply succession is traceable to the last male holder who under the fiction is deemed to die on the date of the death of the widow. In the present

case the plaintiff would be such an heir. It is unnecessary to pursue this matter in the view that I take on other matters arising in the appeal as in any

case the plaintiff will be entitled to maintain the suit. But, it is first contended that the decree in the suit filed by the plaintiff would preclude the

defendant from raising the question as to who is the nearest reversioner and the finding in O. S. 49 of 1945 that the plaintiff is the nearest

reversioner would operate as res judicata.

In Mullah''s Hindu Law, 13th Edn., page 234, the nature of the reversioner''s rights is stated as follows:

A reversionary heir, although having those contingent interests which can be differentiated little if at all from a spes successionis is recognized by

courts of law as having a right to demand that the estate be kept free from danger during its enjoyment by the widow or other limited owner. He

may, therefore, sue to restrain a widow or other limited heir from committing waste or injuring the property. The reason why such a suit by a

reversionary heir is allowed is that the suit is by him in a representative character and on behalf of all the reversioners, so that the corpus of the

estate may pass unimpaired to those entitled to the reversion. For the same reason he may bring a suit for a declaration that an alienation effected

by her is not binding on the reversion.......... The next reversioner for the time being to the estate of a deceased Hindu, expectant upon the widow''s

death is entitled to a declaration that he is the next reversioner, although in that capacity he has the right to sue on behalf of the reversioners for the

protection of the estate.

The result is that though the plaintiff filed the former suit, claiming to be the nearest reversioner, he exercised that right on behalf of the reversioners

for the protection of the estate. The declaratory suits by reversioners during the lifetime of the limited owner, claiming that the alienation made by

the limited owner is not binding beyond her lifetime are not brought for the personal benefit of the persons who seek the declaration; but the object

is only to remove a common apprehended injury to all the reversioners presumptive and contingent. The act complained of is to the common

detriment such as the relief sought for is for the common benefit. In O. S. 49 of 1945 both the limited owner as also the alienee were impleaded as

parties and a declaratory decree holding that the impugned transactions are void beyond the lifetime of the limited owner, was rendered. The said

decision will preclude the alienee (present defendants) from going behind the decision.

The plaintiff further safeguarded his interests by obtaining a settlement deed from Pavayee. Ex. B-1 dated 27-5-1966, subsequent to the filing of

the suit. The plaintiff will therefore be entitled to maintain this suit on this ground Pavayee, the senior widow filed I. A. 4184 of 1967 to get herself

impleaded as a party to the suit as second plaintiff, and that petition was allowed by the trial Court. There was a revision to this court against the

said order in C. R. P. 96 of 1962 and during the pendency of the said proceedings the executed a further settlement deed Ex. A-17 dated 24-11-

1967 in favor of the plaintiff. The High Court dismissed the civil revision petition with the observation that the settlement deed had the effect of

conferring the right on the plaintiff and would enable him to maintain the suit for redemption. Subsequent to the said order the plaintiff filed I. A.

2211 of 1968 for amendment of the plaint and that petition was dismissed. Against the said order of dismissal the plaintiff filed C. R. P. No. 1647

of 1968 in the High Court. That petition was allowed and the plaint was suitably amended. The result of these proceedings is that the plaintiff

strengthened his claim by obtaining the settlement deeds referred to above. Therefore, the question whether the plaintiff or Pavayee is entitled to

claim redemption pales into insignificance as Pavayee, who would normally displace the plaintiff, has relinquished her rights in favor of the plaintiff.

The next question arising for determination is whether the plaintiff is entitled to redeem the property, Exs. A-1 and A-2 are registration copies of

the usufructuary mortgage deeds. According to the plaintiff the mortgages debts are liable to be scaled down by virtue of Section 9-A of Madras

Act IV of 1938, and the entire debts have been wiped out by virtue of Section 9-A of the Act. The mortgage deeds were executed on 21-9-1932

and by the mortgagee being in possession for over 20 years the contention is that the entire debts became wiped out. The contention of the learned

counsel for the defendant is that so far as item 2 covered by Ex. A-2 is concerned the debt is not liable to be scaled down and that sub-clause

10(b) of Section 9-a will apply as the assignments were made in 1941 and 1943. This question was not specifically raised in the written statement

filed by the defendant and no argument was advanced in the trial Court. Even in the memorandum of appeal to the lower appellate Court this plea

was not specifically raised. It may further be noted that the assignment deeds dated 16-5-1941 and 10-2-1943 have not been filed into court. In

order to make sub-clause 10(b) of Section 9-A applicable, the defendant should prove that the transfer was made bona fide for valuable

consideration and no evidence was let in before the trial Court that the assignments were made bona fide and for valuable consideration. Under

these circumstances it is not open to the learned counsel for the defendant to raise the plea at this stage. The learned Subordinate Judge rightly

refused to allow him to raise the plea at the stage of arguments in the lower appellate Court. The usufructuary mortgages Exs. A-1 and A-2 were

executed on 21-9-1932 and the debts became wiped out on 21-9-1962. I am therefore of opinion that the plaintiff will be entitled to redeem the

mortgages without payment. The finding of the courts below on this question is confirmed.

The further contention of the learned counsel for the defendant is that the defendant is entitled to the cost of improvements effected by him. No

doubt, the defendant was the usufructuary mortgagee. His case is that he effected improvements at a cost of Rs. 1300 and therefore he would be

entitled to be paid the value before he is called upon to deliver possession of the properties to the plaintiff. The defendant''s case is not that he

effected improvements in order to preserve the properties. Further, the defendant did not effect improvements with the consent of the mortgagor.

His contention is that he had installed an oil engine in the suit property. It is certainly open to the defendant to remove the oil engine before

delivering vacant possession to the plaintiff. The plaintiff in his evidence has stated that he has no objection to allow the defendant to remove the oil

engine. The defendant''s further claim is that apart from the oil engine that he installed, he had planted coconut sapling''s in respect of which he had

spend Rs. 45. The coconut sapling''s were according to the defendant planted in 1961 long after the decision in O. S. 49 of 1945 on the file of the

Sub-Court Coimbatore. I cannot say that the defendant acted bona fide in planting the sapling''s and therefore the Court was right in negativing the

claim for improvements.

It is next contended for the plaintiff that the defendant''s possession must be held to be wrongful after the date of death of Pappayee on 23-9-

1963, by reason of the decree in O. S. 49 of 1945. The defendant''s possession is wrongful from 23-9-1965 from which date he is liable to pay

mesne profits to the plaintiff. Both the courts below rightly held that the plaintiff is entitled to past mesne profits as claimed by him, and that future

mesne profits from the date of plaint till delivery of possession would be determined in separate proceedings. There is no substance in any of the

contentions put forward by the learned counsel for the appellant.

The second appeal is dismissed. There will be no order as to costs. No leave.

Appeal dismissed.