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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.

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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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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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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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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  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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(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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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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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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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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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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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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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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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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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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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:

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“……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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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  

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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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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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