Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOs. 7605-7606 of 2004

Venkataraja & Ors. … Appellants

Versus

Vidyane Doureradjaperumal (D) Thr.Lrs. & Ors. … Respondents

J U D G M E N T

Dr.B.S.Chauhan, J.

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.

Page 2 2.Facts and circumstances giving rise to these appeals are that:

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

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Page 3 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

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Page 4 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

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Page 5 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 3

rd

to 9

th

defendants on 30.5.1979, and were receiving rent for the same

henceforth.

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:

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Page 6 (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

same.

(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 of

possession/prescription.

(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

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Page 7 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 Enactment.

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Page 8 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

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Page 9 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

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Page 10 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,

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Page 11 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 and void.

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.

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Page 12 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

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Page 13 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

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Page 14 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

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Page 15 pre-mature, as he could not file the same during the life time of

Thayanayagy Ammalle.

13.Thus, the only relevant issue on which the judgment hinges

upon is, whether the suit was maintainable without seeking any

consequential relief.

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:

15

Page 16 “……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

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Page 17 force, the 9

th

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

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Page 18 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 lawful decree.”

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

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Page 19 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.

….……………………………...................................J.

(Dr. B.S. CHAUHAN)

…..……………………………...................................J.

(FAKKIR MOHAMED IBRAHIM KALIFULLA)

NEW DELHI;

April 10, 2013.

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