CIVIL APPEAL NOs. 7605-7606 of 2004
Venkataraja & Ors. … Appellants
Vidyane Doureradjaperumal (D) Thr.Lrs. & Ors … Respondents
J U D G M E N T
1. These appeals have been preferred against the impugned
judgment and order dated 12.12.2003 passed by the High Court of Madras
in Second Appeal Nos. 1536-1537 of 1991, by way of which the common
judgment and decree passed by the First Additional District Judge in
A.S. No. 198 of 1983 and A.S. No. 43 of 1988 were set aside, and the
suit O.S. No. 58 of 1982, was dismissed, holding that the suit filed
by the plaintiff, father of the appellant herein, is not maintainable.
2. Facts and circumstances giving rise to these appeals are
A. The suit property i.e. House No. 9/39, Savaripadayatchi
Street, Nellithope, Pondicherry, originally belonged to the deceased
appellant/great grandfather Vengadachala Naicker, son of Ayyamperumal
Naicker. He donated the above-mentioned suit property on 13.12.1896
in favour of his minor grandsons Radja Row and Kichnadji Row, both
sons of Ponnusamy Naicker, and the said donation deed was registered
on 18.1.1897. In the deed, it was provided that the donees/grandsons
would only have a life estate, and that after their death, only their
male legal heirs shall be entitled to the suit property, with the
right of alienation.
B. In view of the fact that the donees were minors at that
time, their father Ponnusamy Naicker was appointed as the guardian, in
the said deed.
C. The donee Kichandji Row died issueless and hence, the other
donee Radja Row became the full usufructuary owner of the suit
property. Radja Row also died leaving behind his wife Thayanayagy
Ammalle and his son Kannussamy Row. The said Kannussamy Row died
issueless leaving behind his mother Thayanayagy Ammalle and Kuppammal
his wife. After the death of Kuppammal, Thayanayagy Ammalle became
the sole inheritor of the property. Thayanayagy Ammalle subsequently
executed a sale deed dated 16.7.1959 in favour of Vedavalliammalle,
the first defendant.
D. As per the terms of the donation deed dated 13.12.1896,
after the death of Kannusamy Row, the suit property could only
devolve upon his male legal heirs. Since the deceased Radja Row did
not have any issue, the suit property had to go to the sole male
reversioner and surviving heir, i.e. Radja Row’s cousin brother
Ramaraja, being the grandson of the donor Vengadachala Naicker.
E. On the basis of the aforesaid plaints, the
appellant/plaintiff filed a suit against the said first defendant
Vedavalliammalle before the erstwhile French Court of the Tribunal of
First instance, for a direction that the plaintiff was in fact, the
heir of the deceased Radja Row, and also for a direction to the first
defendant to not waste the suit property.
F. Immediately, after filing the said suit, the French Colony
of Pondicherry was merged with the Union of India. The Hindu
Succession Act, 1956 (hereinafter referred to as the ‘Act 1956), had
been extended to the Union Territory of Pondicherry w.e.f. 1.10.1963.
G. The suit filed by the appellant/plaintiff was decided vide
judgment and decree dated 18.8.1965, wherein it was held that since
Thayanayagy Ammalle was still alive, the claim of the
appellant/plaintiff was premature. However, in the said suit, an
observation was made that the appellant/plaintiff was the legal heir
to the deceased Radja Row.
H. Aggrieved, Vedavalliammalle/first defendant preferred an
appeal against the said judgment. However, Thayanayagy Ammalle did not
press the appeal, with regard to the finding of the court as to
whether the appellant/plaintiff was a legal heir to the deceased Radja
Row, and contested only the appointment of the Commissioner, who had
been appointed to determine whether any repairs were necessary, in
respect of the suit property.
I. The appellate court allowed the appeal vide judgment dated
2.2.1970, only to the extent of holding that no repairs were necessary
for the suit property. The said Thayanayagy Ammalle died on
30.5.1978. It was at this juncture, that the claim of the appellant
over the suit property was not accepted by the opposite parties. The
first defendant Vedavalliammalle and her husband, the second
defendant, thereafter leased out the suit property in favour of the
3rd to 9th defendants on 30.5.1979, and were receiving rent for the
J. Defendant No.10 Jeyaraman, who was the husband and father
of respondent nos. 4 and 5 respectively, purchased the suit property
from defendant no.1 vide registered sale deed dated 26.4.1980.
K. The deceased-plaintiff i.e. father of the appellants, filed
suit O.S. No. 58 of 1982, in the Civil Court of Pondicherry for
declaration that he was the legal heir of the deceased Radja Row, and
thus had a proper title to the suit property and for declaration that
the sale deed dated 16.7.1959 executed by Thayanayagy Ammalle in
favour of Vedavalliammal, was null and void as she had only a life
estate and not an absolute title, to alienate the property.
L. The said suit was contested by respondents/defendants and
it was decided on 7.10.1983, by the Civil Court, which held that:
a) Since Kannussamy Row had died before the introduction of the
Hindu Succession Act, and considering the Hindu Law
applicable in the French Territory of Pondicherry, after the
death of the sole male heir to the suit property, the wife
and the mother of the legal heir would have only usufructuary
right over the suit property and not an absolute title.
b) As per the above customary Hindu Law applicable in 1959, the
vendor Thayanayagy Ammalle had only a usufructuary right over
the property, and not the absolute right to alienate the
c) Therefore, the reversionary male heir was entitled to inherit
the property, being the sole heir of the original donor.
d) The defendants/respondents had not acquired the title by way
e) The suit was not barred by res-judicata.
Though the court decided the question of title in favour of the
appellant/plaintiff, the trial court found that the
appellant/plaintiff had filed the suit only for declaration of his
right to the suit property, and since he had not asked for
consequential relief of delivery of possession, the suit was held to
be not maintainable and was dismissed.
M. Aggrieved, the appellant/plaintiff filed an appeal
challenging the said judgment and order dated 7.10.1983, before the
court of the District Judge, and the said appeal was allowed vide
judgment and decree dated 13.4.1989, observing that the sale deed had
been executed by Thayanayagy Ammalle in favour of defendant no. 1 on
16.7.1959, prior to the extension of the Hindu Succession Act to
Pondicherry on 1.10.1963. The result of the same was that she had sold
only her life estate in the suit property, as she was only a life
estate holder and upon her death, the property devolved on the sole
living reversionary. Further, it was held that, as the
appellant/plaintiff had filed a suit for declaration in respect of the
suit property in which there were tenants, it was not necessary for
the appellant to claim any consequential relief for the reason that
after obtaining such a declaration, appropriate relief could be
claimed under Pondicherry Non-Agricutural Kudiyiruppudars (Stay of
Eviction Proceedings) Act of 1980 (hereinafter referred to as the ‘Act
1980’). There was thus, no need for a separate prayer for recovery of
possession, as the same could be asked only under the Special
N. Being aggrieved, the respondents/defendants filed second appeals
before the High Court, and it was during the pendency of the said
appeals, that Vedavalliammal sold the suit property to respondent nos.
1 to 3 on 31.3.1993. In view thereof, they were also impleaded in
the appeal as respondents. The said appeals were decided by impugned
judgment and order dated 12.12.2003, wherein the High Court had held,
that Thayanayagy Ammalle had acquired the absolute title over the
property. As the first defendant Vedavalliammal had purchased the
suit property from the absolute owner Thayanayagy Ammalle vide sale
deed dated 11.7.1959, she had become the rightful owner, and the said
sale deed was not null and void. Also, in view of the fact that the
said Vedavalliammal had been in possession of the suit property for
over than 10 years, she had perfected the title to the suit property
by prescription, under the provisions of French Civil Code and as a
consequence thereof, the suit for declaration was not maintainable
without seeking the relief of possession.
Hence, these appeals.
3. Shri R. Venkataramani, learned senior counsel appearing for
the appellants has submitted that the High Court had committed an
error by holding that Thayanayagy Ammalle had acquired an absolute
title over the suit property, and that by selling the suit property to
Vedavalliammalle, who had purchased the suit property from her, vide
sale deed dated 16.7.1959, Vedavalliammalle, had become the absolute
owner of the suit property and that the sale deed (Ext. A-4) was not
null and void.
The courts below have recorded a finding that Thayanayagy
Ammalle was only a life estate holder and thus, had not acquired an
absolute title. The High Court has not given any reason whatsoever,
for reversing the said finding of fact. The said finding is perverse
being based on no evidence. In case such a finding goes, the sale deed
dated 16.7.1959 could not confer any title on the purchaser,
Vedavalliammalle. More so, the High Court had not correctly framed the
substantial question of law, rather it had framed entirely irrelevant
issues, such as, the prescription and issue of limitation. The High
Court had committed an error by holding that the suit for declaration
was not maintainable without seeking any consequential relief, when
the First Appellate Court has rightly held, that in a case where the
property had been in the possession of the tenants, and where there
were other means to recover the possession, there was no need for
seeking any consequential relief in that aspect. Thus, the appeals
deserve to be allowed.
4. Per contra, Shri R. Balasubramaniam, learned senior counsel
appearing for the respondents, has opposed the appeals contending that
seeking consequential relief was necessary in order to maintain the
suit for declaration as per the proviso to Section 34 of the Special
Relief Act, 1963 (hereinafter referred to as the ‘Act 1963’). The
pleadings taken by the parties suggest, that the respondents had been
in physical possession of the property alongwith their tenants. They
were in exclusive possession of the same. Therefore, as no
consequential relief had been sought, the suit was not maintainable.
More so, the question of limitation was very relevant and has rightly
been dealt with by the High Court. The appeals lack merit, and are
liable to be dismissed.
5. We have considered the rival submissions made by the
learned counsel for the parties and perused the record.
6. Ramaraja claiming himself to be the reversioner, had filed
a suit against the purchaser Vedavalliammalle, which was decided in
1965, and the issue of nature of title, with respect to whether the
interest of Thayanayagy Ammalle was merely usufructuary or absolute,
was considered. The court had then come to the conclusion vide
judgment and decree dated 29.11.1965, that the same was pre-mature, as
the suit could not have been filed during the life time of Thayanayagy
Ammalle. In the suit O.S. No. 58 of 1982, undoubtedly, the contesting
respondents had also been shown as the residents of the suit property,
and relief had been claimed only for declaration that the plaintiff
was the legal heir of the deceased Kannussamy Row, the great grandson
of Venkatachala Naicker, having title to the suit property, and
further, for declaration that the sale deed dated 16.7.1959 was null
In para 4 of the written statement, it has been mentioned
that the respondents/defendants were living in the suit property
alongwith defendant Nos. 3 to 9, their tenants. In view of the
pleadings taken by the parties, a large number of issues were framed
by the trial court, including whether the plaintiff was the legal heir
of the deceased Kannussamy Row; whether the sale deed dated 16.7.1959
was null and void; and whether the plaintiff was entitled for the
declaration, as prayed for.
7. The trial court held, that Thayanayagy Ammalle had not
acquired absolute right and that the plaintiff therein was thus, the
reversioner. The sale deed dated 16.7.1959 was void. However, as the
property was in the possession of the respondents/defendants, and
consequential relief of delivery of possession was not asked for, the
suit was not maintainable.
8. Being aggrieved, the parties filed cross appeal suit Nos.
198/83, 21/88 and 43/88. All the aforesaid appeal suits were disposed
by a common judgment of the First Appellate Court, and the said court
held, that Vedavalliammalle was not residing in the suit property as
she was residing somewhere, and had rented the house to three
different tenants, with a total strength of about 26 members.
Therefore, defendant no.1 was not in possession of the suit property
even as early as 1969, and therefore, defendant no.10 also did not
have possession of the suit property.
In view of the fact that the tenants could have been
evicted subsequently by the appellant/plaintiff, resorting to the
provisions of the Act 1980, which had been extended upto 31.3.1990,
the suit was maintainable, and the trial court ought not to have
dismissed the said suit on the ground that appellant/plaintiff had not
sought consequential relief of recovery of possession.
9. The High Court having considered various points involved
therein held, that as per Article 2265 of the French Civil Code 1908,
a person who had acquired an immovable property in good faith, and
under an instrument which was on the face of it capable of conferring
a title, would perfect his title by prescription to the land in ten
years, in the district of the Court of Appeal, when the owner lives in
the same district as that in which the land lies, and in twenty years
if the true owner lives outside such district.
Admittedly, the first defendant Vedavalliammalle had
purchased the suit property from the absolute owner Thayanayagy
Ammalle, as per sale deed dated 16.7.1959. Thus, she had become the
rightful owner, said sale deed being not null and void.
10. These appeals have raised the questions regarding the
interpretation of French Hindu Law, as to whether a Hindu widow having
only a life estate, can be considered the absolute owner of a
property, thus competent to transfer the said property; and secondly
whether the suit was maintainable as the appellant/plaintiff had not
sought any consequential relief.
11. So far as the issue no.1 is concerned, undoubtedly, the Act
1956 was extended to the Union Territory of Pondicherry only, at a
much later stage. Various judgments of the French courts and the
Madras High Court dealing with the issue have been cited before us,
but in view of the fact that Shri R. Bala Subramaniam, learned senior
counsel appearing on behalf of the respondents, has fairly conceded
that such a Hindu widow could not acquire the absolute title, there is
no occasion for us to enter into that controversy. Even otherwise,
the finding recorded by the High Court is not based on any evidence,
and no reason has been given by it to reverse the findings recorded by
the trial court as well as the First Appellate Court that Thayanayagy
Ammalle was only the life estate holder. We hold that the High Court
has erred in recording such a finding.
12. So far as the issue of adverse possession is concerned, in
our humble opinion, the High Court had no occasion to deal with the
same, in view of the earlier judgment of the trial court, wherein in
1965, it had been held that the suit filed by the appellant/plaintiff
was pre-mature, as he could not file the same during the life time of
13. Thus, the only relevant issue on which the judgment hinges
upon is, whether the suit was maintainable without seeking any
In Deo Kuer & Anr. v. Sheo Prasad Singh & Ors. AIR 1966 SC
359, this Court dealt with a similar issue, and considered the
provisions of Section 42 of the Specific Relief Act 1877, (analogous
to Section 34 of the Act 1963), and held, that where the defendant was
not in physical possession, and not in a position to deliver
possession to the plaintiff, it was not necessary for the plaintiff in
a suit for declaration of title to property, to claim the possession.
While laying down such a proposition, this Court placed reliance upon
the judgments of Privy Council in Sunder Singh Mallah Singh Sanatan
Dharam High School Trust v. Managing Committee, Sunder Singh Mullah
Singh Rajput High School, AIR 1938 PC 73; and Humayun Begam v. Shah
Mohammad Khan, AIR 1943 PC 94.
14. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993 SC 957,
this Court while dealing with a similar issue held:
“……It is also now evident that she was not in exclusive
possession because admittedly Keshav Chandra and Jagdish
Chandra were in possession. There were also other tenants
in occupation. In such an event the relief of possession
ought to have been asked for. The failure to do so
undoubtedly bars the discretion of the Court in granting
the decree for declaration.” (emphasis added)
15. The facts in the case of Deo Kuer (Supra) are quite
distinguishable from the facts of this case, as in that case, the
tenants were not before the court as parties. In the instant case,
respondent nos. 3 to 10 are tenants, residing in the suit property.
The said respondents were definitely in a position to deliver the
possession. Therefore, to say that the appellants would be entitled to
file an independent proceedings for their eviction under a different
statute, would amount to defeating the provisions of Order II Rule 2
CPC as well as the proviso to Section 34 of the Act 1963. Thus, the
First Appellate Court, as well as the High Court failed to consider
this question of paramount importance.
16. The very purpose of the proviso to Section 34 of the Act
1963, is to avoid the multiplicity of the proceedings, and also the
loss of revenue of court fees. When the Specific Relief Act, 1877 was
in force, the 9th Report of the Law Commission of India, 1958, had
suggested certain amendments in the proviso, according to which, the
plaintiff could seek declaratory relief without seeking any
consequential relief, if he sought permission of the court to make his
subsequent claim in another suit/proceedings. However, such an
amendment was not accepted. There is no provision analogous to such
suggestion in the Act 1963.
17. A mere declaratory decree remains non-executable in most
cases generally. However, there is no prohibition upon a party from
seeking an amendment in the plaint to include the unsought relief,
provided that it is saved by limitation. However, it is obligatory
on the part of the defendants to raise the issue at the earliest.
(Vide: Parkash Chand Khurana etc. v. Harnam Singh & Ors., AIR 1973 SC
2065; and State of M.P. v. Mangilal Sharma, AIR 1998 SC 743).
In Muni Lal v. The Oriental Fire & General Insurance Co.
Ltd. & Anr., AIR 1996 SC 642, this Court dealt with declaratory
decree, and observed that “mere declaration without consequential
relief does not provide the needed relief in the suit; it would be for
the plaintiff to seek both reliefs. The omission thereof mandates the
court to refuse the grant of declaratory relief.”
In Shakuntla Devi v. Kamla & Ors., (2005) 5 SCC 390, this
Court while dealing with the issue held:
“……a declaratory decree simpliciter does not attain
finality if it has to be used for obtaining any future
decree like possession. In such cases, if suit for
possession based on an earlier declaratory decree is filed,
it is open to the defendant to establish that the
declaratory decree on which the suit is based is not a
18. In view of the above, it is evident that the suit filed by
the appellants/plaintiffs was not maintainable, as they did not claim
consequential relief. The respondent nos. 3 and 10 being admittedly
in possession of the suit property, the appellants/plaintiffs had to
necessarily claim the consequential relief of possession of the
property. Such a plea was taken by the respondents/defendants while
filing the written statement. The appellants/plaintiffs did not make
any attempt to amend the plaint at this stage, or even at a later
stage. The declaration sought by the appellants/plaintiffs was not in
the nature of a relief. A worshipper may seek that a decree between
the two parties is not binding on the deity, as mere declaration can
protect the interest of the deity. The relief sought herein, was for
the benefit of the appellants/plaintiffs themselves.
As a consequence, the appeals lack merit and, are
accordingly dismissed. There is no order as to costs.
(Dr. B.S. CHAUHAN)
(FAKKIR MOHAMED IBRAHIM KALIFULLA)
April 10, 2013.
ITEM NO.1A COURT NO.7 SECTION XII
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
CIVIL APPEAL NO(s). 7605-7606 OF 2004
VENKATARAJA & ORS. Appellant (s)
VIDYANE DOURERADJAPERUMAL(D)THR.LRS& ORS Respondent(s)
Date: 10/04/2013 These Appeals were called on for pronouncement
of judgment today.
Mr. V.G. Pragasam,Adv.
For Respondent(s) Mr. Senthil Kumar, Adv.
Mr. M.A. Chinnasamy,Adv.
Mr. S. Muthukrishnan, Adv.
Mr. Senthil Jagadeesan,Adv.
Hon’ble Dr. Justice B.S. Chauhan pronounced the judgment of
the Bench comprising of His Lordship and Hon’ble Mr. Justice Fakkir
Mohamed Ibrahim Kalifulla.
The appeals are dismissed, in terms of the signed
| (DEEPAK MANSUKHANI) |(M.S. NEGI) |
| Court Master | Court Master |
(Signed reportable judgment is placed on the file)
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