ORDER
S. Sardar Zackria Hussain, J.
1. The appellant in both the appeals is the first defendant Vedavalliammale in O.S.No. 58 of 1982 on the file of the Second Additional District Munsif, Pondicherry.
2. The parties are referred to as per their rankings in the suit.
3. One Ramaraja filed the suit O.S.No. 58 of 1982 for declaration that he is the legal heir of the deceased Kannusamy Row, great grand son of Vengadasala Naicker to whom the suit property originally belonged to and also for declaration that the sale deed dated 11.7.1959 executed by Thayanayagy Ammal, the mother of Kannusamy Row, in favour of Vedavalliammale, the first defendant, is null and void, since she has no right legally to alienate. The suit property is a house situated at No. 9/35 Savaripadatchi Street, Nellithope, Pondicherry. It originally belonged to the plaintiff’s grand father Vengadasala Naicker. Vengadasala Naicker, as per the Notorial Donation Deed dated 15.12.1896, donated the suit property in favour of his minor grand sons Radja Row and Kichnadji Row, both are the sons of Ponnusamy Naicker. As per Notorial Donation Deed, Ponnusamy Naicker was appointed as guardian to his minor sons and the donees had no right to alienate the suit property and only their male legal heirs are entitled full right of the suit property. The donee Kichnadji Row died issueless and the other donee Radja Row became the full usufructuary owner of the suit property. Radja Row died leaving his wife Thayanayagy Ammal and only son Kannusamy Row. Kannusamy Row also died issueless leaving behind, his wife Kuppammal and his mother Thayanayagy Ammal. On the death of Kannusamy Row, the suit property should only devolve upon the male heirs. Since the deceased Radja Row died issueless, the suit property has to go to the male reversioner and the surviving heir, viz., Radja Row’s cousin brother, the plaintiff Ramaraja. When the plaintiff Ramaraja tried to enforce his right, Radja Row’s wife Thayanayagy Ammal objected to his status and in order to circumvent the legal right of the plaintiff, Thayanayagy Ammal without any right, sold the suit property to the first defendant Vedavalliammale on 11.7.1959. The plaintiff informed his legal status to the first defendant Vedavalliammale and she did not heed at all. Hence, the plaintiff filed the suit in the then French Court of Tribunal of First Instance against Vedavalliammale on 28.2.1962 for a direction that the plaintiff is the heir of the deceased Radja Row and also for a direction that the first defendant not to waste the suit property. The said Court as per judgment dated 18.8.1965 declared that since Thayanayagy Ammal still living, the claim of the plaintiff is premature, but, however, the Court appointed the Commissioner Mr. Ranganathan to inspect the suit property and to report about the condition of the building. In the appeal in A.S. No. 725 of 1965 filed by Vedavalliammale before the Third Additional District Judge, Pondicherry, Vedavalliammale did not press the finding of the Court as to whether the plaintiff is legal heir to the deceased Radja Row and resisted the appeal only with regard to the fact of appointment of commissioner to find out as to whether any repair is necessary for the suit building. The appeal in A.S.No. 725 of 1965 was allowed on 2.2.1970 that no repair is necessary for the suit building, but confirmed the judgment of the lower Court with regard to the legal status of the plaintiff. Thayanayagy Ammal died on 30.5.1978. The plaintiff informed the first defendant and her husband, the second defendant Codandabany alias Oulagaratchaga Naicker about his legal status as the surviving male legal heir of Kannusamy Row. But still the defendants 1 and 2 leased out the suit property to the defendants 3 to 9 and they are receiving the rents from the defendants 3 to 9. Hence, defendants 3 to 9 have been added as formal parties. The plaintiff caused a lawyer notice on 13.11.1979 to the first defendant and to her tenants. The first defendant replied denying the legal status of the plaintiff as owner of the suit property. So, the plaintiff filed the suit seeking the reliefs as stated above. During the pendency of the suit, 10th defendant has been added as party as per order in I.A.No. 6377 of 1982 in view of the purchase of the suit property from the first defendant as per sale deed dated 26.4.1980.
4. In the trial Court, defendants 6 to 8 remained ex parte.
5. In the trial Court, the suit was not pressed against the defendants 3 to 5 and 9.
6. The suit was resisted by the first defendant in the written statement admitting that Kannusamy Rao became the absolute owner of the suit property as the son of Raja Rao as per the conditions stipulated in the Notorial Donation Deed dated 15.12.1896 and by inheritance. Kannusamy Rao died leaving behind, his wife Kuppammal and mother Thayanayagy Ammal. On the death of Kuppammal, her mother-in-law Thayanayagy Ammal became the only surviving heir of Kuppammal and in turn got a Notorite Deed dated 4.7.1959 declaring that she is the legal heiress of the deceased Kuppammal, Thayanayagy Ammal executed sale deed dated 11.7.1959 in favour of the first defendant. After purchase, the first defendant had been in possession and enjoyment of the suit property. The second defendant is the husband of the first defendant and the defendants 3 to 9 are the past and present tenants of the first defendant in respect of the suit property. The first defendant acquired title to the suit property by prescription. The case of the plaintiff was rejected by the then French Court of Tribunal of First Instance and the Appellate Court and so, the suit is hit by the doctrine of res judicata. The plaintiff has no right to suit property and he cannot claim any reversionery right over the suit property.
7. In the written statement of the second defendant, the suit was resisted that as per the Notorial Deed dated 15.12.1896 Kannusamy Rao became the absolute owner of the suit property and on his death issueless, his mother Thayanagy Ammal and his wife Kuppammal became entitled to the suit property and on the death of Kuppammal in 1948, Thayanayagy Ammal inherited the suit property as heir of her son Kannusamy. The plaintiff Ramaraja is not a direct descendant to inherit the suit property or a member in the joint family of Kannusamy. In fact during the life time of Kannusamy, he along with his mother Thayanayagy Ammal sold some properties at Tamil Nadu to Ramaraja as per sale deed dated 25.11.1940 and there have been no joint family status to claim any right over the suit property. Kannusamy was brought up by Ulagaratchaga Naicker from the date of death of his father Raja Rao and from the age of 1-1/2 years till marriage he was brought up by Ulagaratchaga Naicker. Ulagaratchaga Naicker celebrated the marriage of Kannusamy with Kuppammal. On the death of Kannusamy, his funeral ceremonies and expenses were met by Ulagarachaga Naicker. Thayanayagy Ammal was also looked after by Ulagaratchaga Naicker and her funeral ceremonies and expenses were met by Ulagaratchaga Naicker. Ramaraja kept quit and acted as a third person to the family of Kannusamy. Vengadasala Naicker has not stated in the Notorial Deed that the property should devolve upon Ramaraja and so Ramaraja has no right of inheritance. The suit property is in possession and enjoyment of Ulagaratchaga Naicker till date and he is the grand son of Vengadasala Naicker and also nearest heir to succeed the property of Kannusamy left by him by way of reversionery right. The second defendant also perfected title to the suit property by prescription. The then French Court of Tribunal of First Instance, Pondicherry and the appellate Court in A.S.No. 725 of 1965 has not stated that Ramaraja has right to inherit the suit property as a reversioner Thayanayagy Ammal died on 30.5.1975. The suit is barred by limitation.
8. The 10th defendant who purchased the suit property during the pendency of the suit from the first defendant has filed written statement supporting the case of the first defendant that the plaintiff is not the legal heir and reversionar of the deceased Kannusamy.
9. Before the trial Court, the plaintiff Ramaraja examined himself as P.W.1 and marked Exs.A-1 to A-5. On the side the defendants, the first defendant Vedavalliammale examined herself as D.W.1 and her husband Ulagaratchaga Naicker as D.W.2 and the 10th defendant as D.W.3 and Exs.B-1 to B-5 were marked. The trial Court considering such evidence adduced on either side and on framing issues, found that the suit is not barred by res judicata and the Court has got jurisdiction and further found that the plaintiff Ramaraja is the reversionery heir and he is entitled to the suit property as the sole heir of Vengatasala Naicker and as such, the sale deed executed by Thayanayagy Ammal in favour of the first defendant is null and void and also found that the defendants 1 and 2 have not perfected title by prescription and though recorded finding as such, ultimately dismissed the suit that since consequential relief of delivery of possession was not sought for.
10. The first plaintiff Ramaraja filed appeal in A.S.No. 198 of 1983 challenging the dismissal of the suit and on his death during the pendency of the appeal his legal representatives of the first plaintiff have been added as per order in I.A.No. 229 of 1984 dated 19.7.1985.
11. The 10th defendant, who purchased the suit property during the pendency of the suit from the first defendant also filed the appeal in A.S.No. 21 of 1988.
12. The first defendant; though the suit O.S.No. 58 of 1982 was dismissed, filed the appeal in A.S.No. 43 of 1988, in view of the findings recorded by the trial Court that the plaintiff Ramaraja is a legal heir as the great grandson of Vengatasala Naicker having right in the suit property.
13. The appeal A.S.No. 198 of 1993 filed by the plaintiff Ramaraja was allowed and the other two appeals, viz., A.S.No. 43 of 1988 filed by the first defendant and A.S.No. 21 of 1988 filed by the 10th defendant were dismissed.
14. The first defendant has filed both the Second Appeals against the common judgment delivered in A.S.Nos. 198 of 1983 filed by the plaintiff Ramaraja which was allowed and 43 of 1988 filed by her which was dismissed, respectively.
15. At the time of admission, the following substantial questions of law have been framed for consideration:
“(1) “Whether the Court below was right in presuming that the first respondent was the nearest male reversioner without any evidence save that the plaintiff, and without any discussion and finding ?
(2) Whether the Court below was right in holding that the suit for mere declaration without any consequential relief was maintainable ?
(3) Whether the appellant had not obtained title to the suit property by prescription in ten years or twenty years from the date of sale in her favour, in view of the provisions contained under Article 2265 of the French Code of Civil when she had purchased the suit property in good faith under an instrument viz., Ex.A-4 sale deed dated 11.7.1959, the parties live in the same district and the present suit was filed only in the year 1982 i.e., after 24 years ?
(4) Whether the non consideration of the appellant’s contention that she had purchased the suit property under Ex.A-4, sale deed dated 11.7.1959 and hence she has acquired title over the same by her document and by prescription by the Court below in view of the provisions contained under Article 2265 of the French Code of Civil had not vitiated its judgment ?
(5) Whether the Court below was right in ignoring all the oral evidence and most of the documentary evidence on record ?
16. In both the appeals, the learned counsel appearing for the appellants contended that the suit as filed for declaration without seeking for consequential relief of possession is not maintainable, in that in paragraph 7 of the plaint it is set out that the plaintiff is not in possession of the suit property and in view of the fact the relief of declaration sought for on the basis of the donation deed Ex.A-1 dated 15.12.1896. The learned counsel also pointed out that the respondents 1 to 3 cannot claim coparcenery right as well the deceased plaintiff. The learned counsel argued that on the death of Kannusamy, who died issueless, his wife Kuppammal became entitled to the suit property and on the death of Kuppammal, the mother of Kannusamy, viz., Thayanayagy Ammal got absolute right in the suit property and by virtue of the purchase of the suit property under Ex.A-4 dated 11.7.1959 from Thayanayagy Ammal, the first defendant became entitled to the suit property. The learned counsel for the appellants also contended that in view of the purchase under Ex.A-4 dated 11.7.1959 from Thyanayagy Ammal, the first defendant Vedavalliammale admittedly having been put into possession of the suit property, she has perfected title to the suit property by prescription and also as per the said document, under Article 2265 of the French Code of Civil, in that she had purchased the suit property under Ex.A-4 in good faith and in view of the fact the parties are residing in the same district and the suit was filed only in the year 1982, 24 years after the purchase of the suit property under Ex.A-4 by the first defendant. So, according to the learned counsel for the appellants, the judgment of the first appellate Court is vitiated under Article 2265 of French Code of Civil. The learned counsel also pointed out that the evidence has not been discussed by the first appellate Court in the judgment. The learned counsel for the appellants further contended that as per the judgment dated 18.8.1965 of the erstwhile Tribunal of First Instance Pondicherry Ex.A-2, it has been found that the rights of the plaintiff Ramaraja, even if he is the present nearest relative of the late Kannusamy Naicker, are subject to his survival to the mother of the latter, and as such, the claim for declaration that Ramaraja is only heir of Kannusamy Naicker is premature and as such it cannot be said that the plaintiff Ramaraja had been declared as the reversionery heir of Kannusamy Naicker in the said suit.
17. Respondents 1 to 3 herein are the sons of the deceased plaintiff Ramaraja and the fourth respondent Jayaraman is the 10th defendant and on his death during the pendency of the Second Appeal, the respondents 5 and 6 herein have been brought on record as his legal representatives.
18. The learned counsel appearing for the respondents 1 to 3 vehemently contended that as per the judgment under Ex.A-2 dated 18.8.1965 and as per the judgment under Ex.A-3 dated 2.2.1970 in A.S.No. 725 of 1965, the deceased plaintiff Ramaraja has been recognised as reversioner to Kannusamy Row and on the death of Thayanayagy Ammal on 30.5.1978, the deceased plaintiff Ramaraja became reversioner to Kannusamy Row. So, on the death of Thayanayagy Ammal, the suit O.S.No. 58 of 1982 was filed on 30.4.1981. The learned counsel also argued that during the pendency of the suit, 10th defendant purchased the suit property from the first defendant/first appellant under the sale deeds which are marked as Exs.B-4 and B-5 dated 25.4.1980 (photostate copies) and though the 10th defendant filed the appeal in A.S.No. 21 of 1988 against the judgment in O.S.No. 58 of 1982, inasmuch as no Second Appeal has been filed by the 10th defendant and both the Second Appeals have been filed only by the first defendant and inasmuch as the 10th defendant also died during the pendency of both the Second Appeals, the Second Appeals filed by the first defendant are not maintainable.
19. As regards the purchase of the suit property by the 10th defendant under Exs.B-4 and B-5 dated 25.4.1980, the learned counsel for the respondents 1 to 3 pointed out that even before the filing of the suit on 30.4.1981, the 10th defendant purchased the suit property and inasmuch as the 10th defendant filed appeal in A.S.No. 21 of 1988 which was dismissed against which no Second Appeal has been filed by the 10th defendant and the appeal in A.S.No. 193 of 1983 filed by the plaintiff was allowed and the appeal in A.S.No. 43 of 1988 filed by the first defendant was dismissed as per the common judgment and both the Second Appeals are filed by the first defendant alone. The said appeals are not maintainable.
20. During the pendency of both the Second Appeals, the first defendant Vedavalliammale died and as per order in C.M.P.Nos. 16588 and 16589 of 2002, husband, wife and son of the deceased Vedavalliammale, the appellants 2 to 4 had been impleaded, in that they filed both the petitions claiming that they have right in the suit property in view of the purchase as per the sale deeds dated 31.3.1993.
21. It is not in dispute that the suit property originally belonged to Vengadasala Naicker. As per Donation Deed dated 15.12.1896, Vengadasala Naicker donated the property in favour of minor grandsons Radja Row and Kichnadji Row through his son Ponnusamy Naicker, who was appointed as a guardian to the minor sons. As per the donation deed, the donees had no right to alienate and only their male legal heirs are entitled to full right in the suit property. Kichnadji Row died issueless and his brother Radja Row also died leaving behind his son Kannusamy Row. By virtue of the Donation Deed Ex.A-1, the suit property devolved upon Kannusamy Row. Kannusamy Row also died leaving behind his wife Kuppammal and his mother Thayanayagy Ammal. Kuppammal also died leaving behind her mother-in-law Thayanayagy Ammal. Thayanayagy Ammal sold the suit property to the first defendant Vedavalliammale as per sale deed Ex.A-4 dated 11.7.1959 claiming that she is the only legal heir of her son Kannusamy Row.
22. The plaintiff Ramaraja on the death of Kannusamy Row claiming himself as the legal heir and male reversioner, filed the suit in the then French Court of Tribunal of First Instance against the first defendant Vedavalliammale on 28.2.1962. As per judgment Ex.A-2 dated 18.8.1965, though it was found that the plaintiff is a reversioner to Kannusamy, inasmuch as Kannusamy’s mother Thayanayagy Ammal alive, the suit was dismissed as premature, in that the plaintiff cannot seek such declaration. The appeal A.S.No. 725 of 1965 filed by the first defendant Vedavalliammale challenging the appointment of commissioner to find out as to whether any repair was necessary for the suit building, was allowed as per the judgment Ex.A-3 dated 2.2.1970. On the death of Thayanayagy Ammal on 30.5.1978, the plaintiff has filed the present suit.
23. It is claimed that the deceased plaintiff was a male reversioner and the surviving heir of Radja Row being the cousin of Radja Row. Further, according to the contesting respondents 1 to 3, who are legal representatives of the deceased plaintiff Ramaraja, such right of the deceased plaintiff Ramaraja was recognized in the French Court of Tribunal of First Instance under judgment Ex.A-2 dated 18.8.1965. In Ex.A-2, it has been pointed out that even if Ramaraja is the present close relative of the said Kannusamy Naicker, the rights of Ramaraja as reversioner to Kannusamy Naicker are subject to the survival to the mother of the latter and as much as the mother Thayanayagy Ammal was alive then, his claim was rejected as premature. Therefore, it cannot be said that the deceased plaintiff Ramaraja was recognized as the reversioner and legal heir of Kannusamy.
24. The fact remains that Vengadasala Naicker as per Donoation Deed Ex.A-1 gave usufructuary right to his grand sons born through his son Ponnusamy, viz., Radja Rao and Kichnadji Rao and on the death of Kichnadji Row issueless, Radja Row got absolute usufructuary right and on his death, the suit property vested with his only son Kannusamy. On the death of Kannusamy, his wife Kuppammal became entitled to the suit property and on her death, her mother-in-law and the mother of Kannusamy, viz., Thayanayagy Ammal became entitled to the suit property as per Article 2265 of French Code of Civil. On the death of Kannusamy Row, who died intestate and without leaving male issue his wife Kuppammal and on her death his mother Thayanayagy Ammal became entitled to the suit property.
25. Venkadasala Naicker had three sons, viz., Ponnusamy, Duraisamy Rayar and Narasinga Naicker. As per Donation Deed Ex.A-1 dated 15.12.1896 he donated the suit property giving life interest to his grand sons born through his son Ponnusamy and vested remainder to male issues of grand sons. The deceased plaintiff Ramaraja is the son of Duraisamy Rayar, who is the second son of Vengadasala Naicker. The contesting respondents 1 to 3 are the sons of Ramaraja. As rightly contended for the appellants, as per Donation Deed Ex.A-1 dated 15.12.1896, Kannusamy became the absolute owner and on his death his wife Kuppammal and his mother Thayanayagy Ammal inherited the property and on the death of Kuppammal leaving her mother-in-law Thayanayagy Ammal, she alone inherited the suit property.
26. In view of purchase from her sister Thayanayagy Ammal as per sale deed Ex.A-4 dated 11.7.1959, the first defendant Vedavalliammale became the owner of the suit property. Admittedly all along Kannusamy and on his death his wife Kuppammal and on her death Kannusamy’s mother Thayanayagy Ammal and after the sale made to the first defendant, Vadavalliammale and in view of the sale to the appellants 2 to 4, pending Second Appeal, they have been in possession of the suit property, as per sale* deeds dated 31.3.1993,
27. It is the evidence of D.W.1, Vedavalliammale that at the time of purchase of the suit property by her under the sale deed Ex.A-4, Kannusamy and his wife Kuppammal were not alive. Before such sale, Thayanayagy Ammal obtained an affidavit Ex.B-1 dated 4.7.1959 that she is the heir of her son Kannusamy. In Ex.B-1, it is mentioned that her son Kannusamy died and her daughter-in-law Kuppammal, the wife of Kannusamy also died at Vellapakkam on 14.4.1949. As per Article 2265 of the French Civil Code 1908 “A person who acquires an immovable in good faith, and under an instrument which is on the face of it (m) capable of giving a title, obtains a title by prescription to the land in ten years, if the district of the Court of Appeal, in which the owner lives is the same district as that in which the land lies, and in twenty years if the true owner lives outside such district”.
28. Admittedly, the plaintiff Ramaraja was not in possession of the suit property at the time of filing of the suit in the year 1982. As such, the suit filed by the plaintiff Ramaraja for declaration that he is the legal heir of the deceased Kannusamy, without seeking the relief of possession, is not maintainable. Inasmuch as, the first defendant Vedavalliammale purchased the suit property from the absolute owner Thayanayagy Ammal as per sale deed Ex.A-4 dated 11.7.1959, she became the rightful owner and as such, the said sale deed Ex.A-4 is not null and void.
29. Further, it is clear from Ex.B-1 that on the death of Kannusamy and his wife Kuppammal, Thayanayagy Ammal was in possession of the suit property for more than 10 years and in view of the purchase, under the sale deed Ex.A-4 dated 11.7.1959 by the first defendant Vedavalliammale and having been in possession of the suit property, she had perfected title to the suit property by prescription under Article 2265 of French Code of Civil. As per the said Article, the first defendant also acquired title to the suit property as per sale deed Ex.A-4 dated 11.7.1959. Since the first defendant/first appellant Vedavalliammale filed both the Second Appeals against the common judgment delivered in A.S.No. 198 of 1983 filed by the plaintiff Ramaraja which was allowed and A.S.No. 43 of 1988 filed by her which was dismissed and in view of purchase from the first defendant Vedavalliammale, by the appellants 2 to 4 during the pendency of the Second Appeals as per three sale deeds dated 31.3.1993, the appeals are maintainable. Therefore, the respondents 1 to 3 are not entitled to the relief sought for in the suit. It follows both the Second Appeals have to be allowed.
30. In the result, both the Second Appeals are allowed with costs. The common judgment and decrees delivered in A.S.Nos. 198 of 1983 and 43 of 1988 are set aside and the suit O.S.No. 58 of 1982 is dismissed.
