Veluswami Thevar vs Ganesa Thevar and Others

V. Sethuraman, J.—The first defendant is the appellant. The suit was filed by the plaintiff for declaration of his title and for recovery of

possession. The suit property was purchased by one Angammal as guardian for her minor son Muniyandi on 29tfa May, 1907. Muniyandi

predeceased his mother and she executed a gift deed over the property on 25th April, 1952 in favour of her daughter-in-law Nachiarammal. In the

gift deed there is a reference to a daughter having been born through Muniandi and Nachiyarammal. This daughter is named Rajammal, who was

the third defendant in the suit. There can be no dispute about the fact that Nachiyarammal had only a widow''s estate in the said land until the

coming into force of the Hindu Succession Act, as the gift document by Angammal, who had no rights in the property, could not enlarge Nachiyar

Ammal''s interest until it was enlarged by the statute. Nachiarammal executed a settlement dfed on 1st June, 1956 in favour of one Veluswami

Thevar, who was the first defendant in the suit, and who is the appellant herein and also one minor daughter, Rajammal. This Veluswami Thevar is

a cousin of Nachiyarammal who, after her husband''s death sometime in or about 1952, had bsen looking after the family consisting of

Nachiyarammal and her daughter Rajammal. It is stated in the document that Veluswami should marry Rajammal and that they should take the

properties without any power of alienation. The male issue of the two persons would have absolute right over the property. If Veluswami did not

look after the minor properly or did no t marry her after Rajammal attained puberty, then thereafter he had no interest in the suit properties. She

had also made it a condition that Velusami should not alienate the properties and that if any necessity arose therefore the properties would be

alienated only by Veluswami and Nachiyarammal. The settlor-had declared that she had no right to cancel the settlement.

On 23rd October, 1957 Nechiyarammal purported to cancel the said deed and thereafter executed a sale deed in favour of Ganesa Thevar on

24th November, 1958. The purchaser, Ganesa Thevar, filed a suit for declaration of his title and possession of the property and impleaded in the

said suit Veluswarri Thevar and another person. This suit ultimately reached this Court in S.A. No. 1589 of 1963. By a judgment dated 18th July,

1967, construing the settlement of 1st Jure, 1956, this Court held that there was a transfer in presenti of the suit property in favour of Veluswami

and Rajammal,''that the cancellation by Nachiyarammal of the said setlement deed on 23rd October, 1957 was invalid and that Nachiyarammal

still retained some interest in he property because Veluswami could not by himself alienate this property. In the course of the judgment the learned

Judge pointed out the following:

The whole of this tangle would be solved within a fairly short time; The second plaintiff''s daughter (Rajammal) is aged about 15, and if she

indicates that she is not willing to marry which I take it can happen only after she attains majority or if she marries somebody else which I take it

she can do so after she completes 16, because the second plaintiff would be her guardian and she can certainly arrange for her marriage, then this

problem will be solved in one way. If, on the other hand, the second plaintiff''s daughter marries the first defendant the problem will be solved in.

another way.

Rajammal attained puberty ard she is said to have married one Dharmar Thevar on 1st November, 1968, and not Veluswami. The purchaser

from Nachiyarammal, Ganesa Thevar, who was the first plaintiff in the earlier proceedings which came to this Court in S.A. No 1589 of 1963 has

come forward with this suit for declaration of his title and recovery of possession of the suit property. He claimed that defendants 1 arid 2 had

trespassed on the property and that the property belonged to him by tire sale Defendants 1 and 2 resisted the suit saying tha.t Rajammal had

notmairied Dharmar Thevar, that she had married the first defendant and that the sale deed dated 24th November, 1958 was not valid and true, as

Nachiyarammal had no right or title to the suit property on that date. The third defendant, Rajammal, then a minor through her guardian, filed a

written statement saying that she had married Dharmar Thevar and that the first defendant had forfeited his right in the suit property as there was no

marriage between her and the first defendant.

The trial Court decreed the suit as prayed for by the plaintiff. On appeal the learned Subordinate Judge confirmed the judgment of the trial

Court.

In the present appeal filed by the first defendant in the suit, the first question raised is as to whether the third defendant Rajammal was married to

the first defendant as claimed by him or whether, she was married to the fourth defendant as claimed by them. In support of the claim that the said

Rajammal had married the first defendant the learned Counsel for the appellant relied on a marriage invitation Exhibit B-1 to show that the marriage

between him and the said Rajammal took place on 9th September, 1968. There were Exhibits B-4 and B-5 produced by the printer, to show that

100 invitations were printed. Exhibits B-4 and B-5 were in the name of one Sivanu Thevar. This Sivanu Thevar was not examined. D.W. 3, a

former M.L.A. was said to have fixed the muhurtham. He brought the invitation Exhibit B-1 and he claimed to have attended the marriage. The trial

Court has discussed the above evidence in paragraphs 18 to 21 of its judgment and has disbelieved the case of the first defendant in this behalf. In

paragraphs 22 and 23 the trial Court has discussed the oral evidence of D.W. 1 and also considered Exhibit B-2 which is a registered marriage

agreement dated 1st November, 1968. The question as to whether Rajammal was a major at the time of the marriage has ajso been gone into and

it was held agreeing with the submission of the fourth defendant that Rajammal was married to the fourth defendant and that she was married after

she attained majority.

It was the correctness of this finding which was canvassed before me. The question as to whether the third defendant was married to the fourth

defendant or not ii to be determined on the appreciation of evidence in this case. The two Courts have concurrently taken the view that the

marriage between defendants 3 and 4 took place. I see no reason to differ from the concurrent findings of fact of the Courts below.

The learned Counsel for the appellant then submitted that Rajammal had not attained majority at the time when she is said to have married the

fourth defendant on 9th September. 1968. The learned Counsel for the respondents relied on Exhibits A-7 and A-8 to show that a child was born

to Rajammal on or about 1st October, 1969 where her age was described as 20 and th at Rajammal died on 7th October, 1969 when again her

age was declared as 20. It was submitted that entries in the register of births and deaths could not or would not be positive evidence. Reliance is

placed on the decision in Hemanta Kumar Das Vs. Alliantz Und Stuttgarter Life Insurance Co. Ltd., . The proposition laid down in that case was

that entries in the names of persons in a register of births or deaths or marriages could not be positive evidence of the birth, death or marriage of

such persons useless their identity was fully proved. In this case th-jrc is no difficulty about the identity of Rajammal as the birth and death

recorded in Exhibits A-7 and A-8 has not been disputed till this date. It is too late in the day now to say that the entries m Exhibits A-7 and A-8

cannot be given evidentiary value. The lower Court has referred to the fact in Exhibit A-11 that Rajammal had been described as being 10 years

old. Exhibit A-11 is a copy of the plaint in O.S. No. 125 of 1961. If she was 10 years old then, then by the time she got married she would have

been 18 so as to have attained majority. I consider that there is enough material to support, the conclusion of the Court below on this point. In.

fact, the question as to whether Rajammal had attained the majority does not appear to have been taken in the Couits below. However, it is

unnecessary to pursue this point further in view of my conclusion that there are enough materials to show that she had attained the majority.

When once the third defendant is proved to have married the fourth defendant, the question that arises is whether the first defendant has any title

to the suit property. In a way this m atter h as been decided by this Court on the earlier occasion in S.A. No. 1589 of 1963. It has been held that if

Rajammal indicated that she was not willing to marry Veluswami, then the defeasance clause would operate, that Veluswami would be divested of

his estate. In view of the said judgment it follows that the first defendant cannot claim any right in the property under the settlement deed of the 1st

June, 1956.

It was then contended on behalf of the defendants that the plaintiff had no right in the suit property because Nachi-yarammal had no title to the

property at the time when she sold it. The answer of the plaintiff was that as a result of the defeasance clause operating the settlement in favour of

Veluswami and Rajammal failed and Nachiyarammal became entitled to the property by reason of a reversion. The contention urged on behalf of

the appellant was that the right which Nachiarammal had was only spes successions so that any alienation thereof was prohibited by Section 6 of

the Transfer of Property Act. Ihe learned Counsel for the appellant relied in this connection on a decision of this Court in the The Official Assignee

of Madras and Another Vs. Sampath Naidu, . In that case a Hindu reversioner executed a mortgage in respect of the property while it was in the

possession of a limited owner. On the death of the limited owner he became entitled to the property. The question was whether Section 43 of the

Transfer of Property Act would apply. A Bench of this Court held that the alienation by a reversioner had been prohibited by Section 6(a) of the

Transfer of Property Act and that Section 43 did not apply in such Section case to save the transaction.

Unfortunately for the appellant this decision has been directly Overruled by a subsequent Full Bench of this Court in Jamma Masjid, Marcara v.

Deviah (1953) 1 M.L.J. 388 : 66 L.W. 215 ; 1 L.R. (1953) Mad. 427 : AIR 1953 Mad. 637 and this decision of :he Full Bench has been

affirmed by the Supreme Court in the The Jumma Masjid, Mercara Vs. Kodimaniandra Deviah, . Considering this very argument as to the

interaction of Section 6(a) on Section 43 of the Transfer of Property Act the Supreme Court observed at page 562 as follows:

The two provisions operate on different fields, and under different conditions, and we see no ground for reading a conflict between them or for

cutting, down the ambit of the one by reference to the other. Its our opinion, both of them be given full effect on their own terms, in their respective

spheres. To hold that transfers by persons who have only a spes successions at the date of trarsfer are not within the protection afforded by

Section 43 would destory its utility to a large extent.

Again at page 563 it was observed as follows while noticing a contention that there could be no estoppel against a statute:

But here the matter does not rest only on Section 6(a). We have in addition Section 43, which enacts a special provision for the protection of

transferees for consideratiori from persons who represent that they have a present title, which, in fact, they have not; And the point for decision is

simply whether on the facts the respondents are entitled to the benefit of this Section. If they are, as found by the Courts below, then the plea, of

estoppel raised by them on the terms of the Section is one pleaded under, and not against the statute.

At page 568 the learned Judges observed as follows:

The decision in the The Official Assignee of Madras and Another Vs. Sampath Naidu, is in our view, erroneous and was rightly overruled in the

decision now under appeals.

Unfortunately Section 43 of the Transfer of Property Act does not appear to have been specifically referred to in the Courts below. That

Section provides as follows:

Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer

such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such

property at any time during which the contract of transfer subsists.

Nothing in this Section shall impair the fright of transferees in good faith for consideration without notice of the existence of the said option.

In the present case there was an erroneous representation that Nachiyarammal was authorised to transfer certain immovable property. She

professed to transfer it to the plaintiff for consideration. In such a case the transfer shall, at the option of the transferee, operate on any interest

which the transferor, Naehiyarammal, later on acquired at any time during which the contract of transfer subsisted. It is now well settled that the

contract of transfee would subsist so long as the transferer had not rescinded the contract and had not elected to seek a remedy in damagess

Therefore, the present case squarely fallt within the scope of Section 43 of the Act awd the learned Counsel for the appellant was not in a position

to say how, apar) from the inconsistency with Section 6(A) which has already been disposed of, Section 43 had no scope for application here. in.

The last point that was urged on behalf of the appellant was that the present suit was barred by res judicata because the plaintiff himself

featured in the earlier suit and that the proceedings in that suit had ended against him. It was also submitted that the right of Nachiyarammal to

alienate the property had been found against in those proceedings. The submission was that the point as to whether Nachiayarammal could alienate

the property was thus barred by the principle of res judicata. The Courts below have pointed out that the bar of res judicata does not operate here

because the present suit has arisen on account of changed circumstances. The changed circumstances are the marriage of Rajaramal with a third

party and not with the first defendant, so that the defeasance clause operated. The present cause of action is thus wholly on different facts and,

therefore, the plea of res judicata has no scope for application. This plea was rightly rejected by the Courts below.

The second appeal fails and it is dismissed. No order as to costs. No leave.