VASANTHA (DEAD) THR. LR.   [APPELLANT(S)]  Vs.  RAJALAKSHMI @ RAJAM (DEAD)  [RESPONDENT(S)]

(CIVIL APPEAL NO. 3854 OF 2014)

(2JB, HRISHIKESH ROY and SANJAY KAROL JJ., delivered by SANJAY KAROL, J.)

Facts: The action that set in motion the instant dispute was in the year 1947, when a mother transferred property inherited at the death of her husband, in one form to her two sons and in another, to her daughter. Some forty-odd years later, the daughter’s husband filed a suit in respect of such property, in 1993. The Additional District Munsiff decided the matter in 1999. The Additional District and Session Judge returned a decision on the First Appeal in 2002. The Second Appeal was decided by the High Court in 2012. It is against this order and judgment in Second Appeal that the present civil appeal has been preferred.

Issue:Whether the suit for declaration simpliciter was maintainable in view of Section 34 of the SRA, 1963?

Arguments on behalf of counsel for appellants:

It is submitted that all questions raised in this Appeal are pure questions of law and in accordance with Yeswant Deorao Deshmukh v. Walchand Ramchand Kothariand National Textile Corporation Ltd. v. Nareshkumar Badrikumar, a question of law can be raised at any stage. It is urged that the original plaintiff (Gopalakrishnan) lacked a cause of action. Since the suit was filed while Pounammal was alive, even if his right is termed as ‘vested’, the same does not become enforceable till her death. In other words, till 2004 no right stood accrued in favour of the plaintiff. Reference was made to Fateh Bibi v. Char̥an Dass. Further, upon such rights having accrued, no application to amend the plaint was filed. Any which way, if he had by amendment, sought the relief of possession, it would be as if an entirely new cause of action is sought to be introduced amounting to substitution, which ought not to be allowed. Reference was made to M/s Ganesh Trading Co. v. Moji Ram. As per Section 34 of the Specific Relief Act, 196312 the declaration of a right or status is a matter of discretion. However, the proviso restricts the application of such discretion in terms that it is not to be exercised when the complainant seeks only a declaration of title when he is able to seek further relief.

Arguments on behalf of counsel for respondents:

The fact that the First Settlement Deed was acted upon i.e. the rights given to two sons of Thayammal were returned to her by a subsequent deed in 1952, shows that the first one gave rights in presenti. Therefore, in Saroja rests a ‘vested’ right as per Section 19 of the Transfer of Property Act, 1882, a vested right once accrued cannot be defeated by the death of the transferee prior to possession. Reference is made to Sreenivasa Pai v. Saraswathi Ammal. The Second Settlement Deed reverting the life interest awarded to the two sons only gives Thayammal a life interest and therefore subsequent settlement deeds were non est in law and thus need not be challenged. So far as the non-seeking of relief within twelve years is concerned, it is submitted that the possession of the property was only available to Gopalkrishnan upon the death of Pavunammal (in 2004). Since a suit is pending, the limitation for seeking possession is arrested. The plea of adverse possession will be applicable only if the possession with the opposing party had become adverse on the date of the plaint. The learned counsel relies on Tribhuvan Shankar v. Amrutlal.

Held: The court allowed the present appeal and held that, “Adverting to the facts of the present case, on a perusal of the plaint, it is evident that the plaintiff was aware that the appellant herein was in possession of the suit property and therefore it was incumbent upon him to seek the relief which follows. Plaintiff himself has stated that defendant no. 1 was in possession of the subject property and had sought to transfer possession of the same to defendant no.2, thereby establishing that he himself was not in possession of the subject property. We are not inclined to accept the submission of the learned counsel for the respondent on this issue. We note that after the death of the life-estate holder in 2004, there was no attempt made by the original plaintiff to amend the plaint to seek the relief of recovery of possession. It is settled law that amendment of a plaint can be made at any stage of a suit, even at the second appellate stage.”