TMI Blog2013 (4) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9th 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: (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsequential 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 and Ors. AIR 1973 SC 2065; and State of M.P. v. Mangilal Sharma AIR 1998 SC 743). In Muni Lal v. The Oriental Fire and General Insurance Co. Ltd. and 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 and Ors. (2005) 5 SCC 390, this Court while dealing with the issue held: a declaratory dec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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