* Author
[2024] 2 S.C.R. 326 : 2024 INSC 109
Vasantha (Dead) Thr. Lr.
v.
Rajalakshmi @ Rajam (Dead) Thr.Lrs.
(Civil Appeal No. 3854 of 2014)
13 February 2024
[Hrishikesh Roy and Sanjay Karol*, JJ.]
Issue for Consideration
The action that set in motion the instant dispute was in the year
1947, when a mother ‘T’ transferred property by executing First
Settlement Deed in one form to her two sons and in another, to her
daughter. Some forty-odd years later, the daughter’s husband ‘G’
filed a suit in respect of such property, in 1993. The issues arise
for consideration are (i) Whether G’s suit for declaration based on
the First Settlement Deed, eventually filed in the year 1993 barred
by limitation; (ii) Whether the suit for declaration simpliciter was
maintainable in view of s.34 of the SRA, 1963.
Headnotes
Limitation Act, 1963 – s.27, Arts.58 and 65 – Specific Relief
Act, 1963 – s.34 – After First Settlement Deed, two sons
of T executed a second settlement deed dated 31.07.1952
reverting the interest in properties back to their mother-T
– Thereafter, T executed a third Settlement Deed dated
18.08.1952 bequeathing absolute interest in such properties
only in favour of two sons – G filed a suit praying for a
declaration as owner of the property as sole heir of T’s
daughter in terms of First Settlement Deed – Trial Court
held that G admitted execution of Second Settlement Deed
and possession was handed over to T – The suit filed was
barred by limitation – First Appellate Court confirmed the
trial Court judgment – However, the High Court held that G
was entitled to half share a property according to the First
Settlement Deed – Propriety:
Held: If the period of limitation is to run from the date of the Second
Settlement Deed, then the rights should be extinguished in 1964
– If the same were to run from either 1974 (when M, younger son
[2024] 2 S.C.R. 327
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
of T executed settlement deed in favour of his adopted daughter
V) or 1976 (when another deed was executed by M in favour of
his wife P), then after 1986 or 1988 respectively, G had no right
in the property on the plea of adverse possession – It is settled
that a reversioner ordinarily must file a suit for possession within
12 years from the death of the limited heir or widow – That metric
being applied to the instant facts, it is after the death of P, that the
reversioner, or in this case the heir of the reversioner G ought to
have filed the suit – The suit, the subject matter of appeal before
this Court is a suit for declaration simpliciter and not possession
– So, the possession still rests with heir of P – The 12 year period
expired in 2016 with death of P in the year 2004 – Therefore,
the suit filed in 1993 is barred by limitation – Also, Part III of the
Schedule to the Limitation Act details the time period within which the
declarations may be sought for – Art.58 of the Limitation Act governs
the present dispute – In the instant case, the suit for declaration
was filed in 1993 – This implies that the cause of action to seek
any other declaration i.e. a declaration of G in the property, should
have arisen only in the year 1990 – There is nothing on record
to show any cause of action having arisen at this point in time,
much less within the stipulated period of three years – As far as
the maintainability of suit for declaration simpliciter in view of s.34
of SRA is concerned, in view of the proviso to s.34, the suit of the
plaintiff-G could not have been decreed since the plaintiff sought
for mere declaration without the consequential relief of recovery
of possession – On a perusal of the plaint, it is evident that the
plaintiff was aware that the appellant-V herein was in possession
of the suit property and therefore it was incumbent upon him to
seek the relief which follows – It is also noted that after the death
of the life-estate holder-P in 2004, there was no attempt made
by the original plaintiff to amend the plaint to seek the relief of
recovery of possession – Thus, the impugned judgment fails on
both limitation and maintainability of suit – Judgment of the trial
Court and First Appellate Court restored. [Paras 16, 17, 23, 26, 33]
Adverse Possession – Claim of:
Held: Person who claims adverse possession should show : (a)
on what date he came into possession; (b) what was the nature of
his possession; (c) whether the factum of possession was known
to the other party; (d) how long his possession has continued;
328 [2024] 2 S.C.R.
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and (e) his possession was open and undisturbed – A person
pleading adverse possession has no equities in his favour – Since
he is trying to defeat the rights of the true owner, it is for him to
clearly plead and establish all facts necessary to prove his adverse
possession. [Para 20]
Limitation – Adverse Possession – Dependence on limitation:
Held: Modern statutes of limitation operate, as a rule, not only to
cut off one’s right to bring an action for the recovery of property
that has been in the adverse possession of another for a specified
time but also to vest the possessor with title – The intention of such
statutes is not to punish one who neglects to assert rights but to
protect those who have maintained the possession of property for
the time specified by the statute under a claim of right or colour
of title. [Para 21]
Case Law Cited
Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn.,
[1972] 1 SCR 867 : (1971) 2 SCC 860; Union of India
v. Ibrahim Uddin, [2012] 8 SCR 35 : (2012) 8 SCC
148 – relied on.
Sultan Khan v. State of MP, 1991 MP LJ 81 –
distinguished.
Yeswant Deorao Deshmukh v. Walchand Ramchand
Kothari, [1950] 1 SCR 852; National Textile Corporation
Ltd. v. Nareshkumar Badrikumar Jagad, [2011] 14 SCR
472 : (2011) 12 SCC 695; Fateh Bibi v. Charan Dass,
[1970] 3 SCR 953 : (1970) 1 SCC 658; M/s Ganesh
Trading Co. v. Moji Ram, [1978] 2 SCR 614 : (1978) 2
SCC 91; Ram Saran & Anr. v. Ganga Devi, (1973) 2 SCC
60; Vinay Krishna v. Keshav Chandra & Anr., (1993) Supp
3 SCC 129; UOI v. Ibrahim Uddin, [2012] 8 SCR 35 :
(2012) 8 SCC 148; Goplakrishna (Dead) Through LRs
v. Narayanagowda(Dead) Through Lrs., [2019] 6 SCR
382 : (2019) 4 SCC 592; Harmath Kaur v. Inder Bahadur
Singh, AIR 1922 PC 403; Mahadeo Prasad Singh, AIR
1931 PC 1989; Sreenivasa Pai v. Saraswathi Ammal,
[1985] Supp. 2 SCR 122 : (1985) 4 SCC 85; Tribhuvan
Shankar v. Amrutlal, [2013] 12 SCR 368 : (2014) 2 SCC
[2024] 2 S.C.R. 329
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
788; In Saroop Singh v. Banto, [2005] Suppl. 4 SCR
253 : (2005) 8 SCC 330; Karnataka Board of Wakf v.
Govt. of India, [2004] Suppl. 1 SCR 255 : (2004) 10
SCC 779; Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai
Harijan, [2008] 13 SCR 818 : (2009) 16 SCC 517; P.T.
Munichikkanna Reddy v. Revamma, [2007] 5 SCR
491 : (2007) 6 SCC 59; Shakti Bhog Food Industries
Ltd. v. Central Bank of India, [2020] 6 SCR 538 : (2020)
17 SCC 260; Vinay Krishna v. Keshav Chandra, 1993
Supp (3) SCC 129; Venkataraja and Ors. v. Vidyane
Doureradjaperumal (Dead) thr. Lrs., [2013] 5 SCR 814 :
(2014) 14 SCC 502; Akkamma and Ors. v. Vemavathi
and Ors., 2021 SCC Online SC 1146; Executive Officer,
Arulmigu Chokkanatha Swamy Koil Trust, Virudhunagar
v. Chandran and Others, [2017] 5 SCR 473 : (2017) 3
SCC 702; Harcharan v. State of Haryana, (1982) 3 SCC
408; Rajender Prasad v. Kayastha Pathshala, (1981)
Supp 1 SCC 56 – referred to.
List of Acts
Limitation Act, 1963; Specific Relief Act, 1963.
List of Keywords
Limitation; Extinguishment of right to property; Adverse possession;
Title by adverse possession; Establishment of adverse possession;
Claim of adverse possession; Adverse possession dependency on
limitation; Modern statutes of limitation; Suit for declaration; Relief of
possession; Discretion of Court as to declaration of status or right;
Suit for mere declaration without consequential relief; Amendment
of plaint for recovery of possession.
Case Arising From
CIVIL APPELLATE JURISDICTION : Civil Appeal No.3854 of 2014
From the Judgment and Order dated 27.09.2012 of the High Court
of Madras in SA No.1926 of 2004
Appearances for Parties
Dama Seshadri Naidu, Sr. Adv., G. Balaji, Advs. for the Appellant.
V. Ramasubramanian, Adv. for the Respondents.
330 [2024] 2 S.C.R.
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Judgment / Order of the Supreme Court
Judgment
Sanjay Karol, J.
1. 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
Munsiff1
decided the matter in 1999. The Additional District and
Session Judge2
returned a decision on the First Appeal in 2002.
The Second Appeal was decided by the High Court3
in 2012. It is
against this order and judgment in Second Appeal that the present
civil appeal has been preferred.
BACKGROUND FACTS
2. It would be necessary to advert to the facts underlying the present
dispute.
3. On 10th July 1947, one Thayammal executed a settlement deed4
granting rights in her property to her two sons namely Raghavulu
Naidu and Chinnakrishnan @ Munusamy Naidu5 for their lives
and thereafter to the former’s two daughters namely Saroja and
Rajalakshmi (present Respondent now represented through LRs).
Saroja pre-deceased Thayammal as also her father and uncle, in
1951.
3.1 Subsequently, Raghavulu and Munusamy executed a Settlement
Deed dated 31st July 19526
reverting the said interests in the
properties back to their mother.
3.2 Thayamma, soon thereafter, executed a further Settlement
Deed7
dated 18th August 1952, bequeathing absolute interest
1 “Trial Court”
2 “First Appellate Court”
3 “Impugned judgment”
4 “First Settlement Deed”
5 “Munusamy”
6 “Second Settlement Deed”
7 “Third Settlement Deed”
[2024] 2 S.C.R. 331
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
in such properties only in favour of her two sons namely
Raghavulu Naidu and Munusamy Naidu, with the consequence
of extinguishing the rights, if any, of Saroja and Gopalakrishnan.
3.3 Munusamy had no children. His wife Pavunammal enjoyed
life interest in the property bequeathed to her husband. They
had an adopted daughter, Vasantha (present Appellant, now
represented through LRs).
3.4 In 1993, during the lifetime of Pavunammal, Gopalakrishnan
(Husband of Saroja) filed a suit, subject matter of the present
lis, praying for a declaration as the owner of the properties since
he was the sole heir of Saroja in terms of the First Settlement
Deed.
4. It is in this brief background of facts that the dispute entered the
courts.
It would be useful to have a summary of family relations forming
the backdrop of, and parties to, the dispute by way of a chart, as
immediately hereunder:-
● Pounamma is also referred to as Pavanuammal at some places,
as was so done by the Courts below.
332 [2024] 2 S.C.R.
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PROCEEDING BEFORE THE TRIAL COURT
A. PLAINT
5. Plaintiff (Gopalakrishnan) filed a suit for declaration and to establish
his vested rights and interest in the property.
5.1 It was urged that only the First Settlement Deed had legal
sanctity. Accordingly, the wife of Munusamy is only entitled to
possession and enjoyment till her lifetime. There is no right of
transfer in her favour.
5.2 The Second Settlement Deed is only for the lifetime of
Thayammal, and the same would not impact the vested
right created in favour of deceased Saroja, inherited by
Gopalakrishnan, as her husband and sole heir.
5.3 The adoption of Vasantha is illegal. Also, the vested right in favour
of Saroja was created prior to such adoption and, therefore,
would not affect the rights of Gopalakrishnan.
B. WRITTEN STATEMENT
6. The written statement is of denial of all claims made by Gopalakrishnan.
6.1 It is incorrect to state that the two sons Raghavulu and
Munasamy, were in possession of suit properties according to
the First Settlement Deed. No claim of any vested rights can
be accepted.
6.2 The claim that Gopalakrishnan is the sole legal heir of Saroja,
cannot be accepted as after her death in the year 1951, he
has remarried and relocated to Pondicherry.
6.3 Even if the First Settlement Deed is accepted as genuine, then
Pavanuammal alone would be the heir to such properties.
6.4 Munasamy had, during his lifetime, on 7th October, 1976
executed a settlement deed in favour of Pavanuammal without
any coercion. The patta of the said property was also transferred
in her name.
6.5 Since Munasamy and Pavanuammal did not have any children,
they adopted a child namely Vasantha. Pavanuammal of her
own volition executed a settlement deed in favour of Vasantha
on 19th July, 1993. Any denial of the same cannot be accepted.
[2024] 2 S.C.R. 333
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
6.6 On 18th August 1952, Thayammal had vide the Third Settlement
Deed given exclusively, the suit properties to her two sons
who have made separate and individual deeds in regards to
their shares and sold portions thereof to other parties. The suit
suffers from non-joinder of necessary parties.
C. FINDINGS
7. The Learned Additional District Munsif framed four following issues
to be considered:
a) Whether the settlement deed suggested by the
plaintiff is genuine?
b) Whether the plaintiff cannot claim any right in the
suit property?
c) Whether the plaintiff is entitled to get the relief prayed
in the plaint?
d) What are the relief for which plaintiff is entitled to?
7.1 Placing reliance upon the deposition of PW1 (Gopalakrishnan),
the first issue was decided in favour of the plaintiff and the First
Settlement Deed was upheld as genuine. Also, DW1 (Vasantha)
in her deposition had not completely denied the execution
and genuineness of First Settlement Deed. After considering
both, the First and the Second Settlement Deeds, it held that
Raghavulu Naidu and Munusamy Naidu must have executed
the Second Settlement Deed in favour of Thayammal as the
Second Settlement Deed could not be executed without the
first deed having been in existence.
7.2 In regard to the second issue, it was observed that plaintiff himself
has admitted the execution of Second Settlement Deed and that
possession was handed over to Thayammal. Plaintiff has not
taken any action in respect of the document executed in the year
1974 and filed the suit in the year 1993 and held that the suit is
barred by Limitation and the rights of the plaintiff were abated.
7.3 The third and fourth issues were decided against the plaintiff
since he cannot claim any rights in the suit property, therefore,
the declaration cannot be made in respect of one-half of the
defendant’s share in the suit property after her lifetime would
come to the plaintiff.
334 [2024] 2 S.C.R.
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PROCEEDING BEFORE THE FIRST APPELLATE COURT
8. Two following questions were considered by the First Appellate Court:
a) Whether the plaintiff is the legal heir of Saroja Ammal?
b) Whether the plaintiff is entitled for the share in the
suit property?
8.1 It was held that the plaintiff has never taken any steps to revoke
various transactions that have taken place in regard to the suit
properties. He was also unaware about the real possession of
the properties in question. Further, it was observed that the
plaintiff failed to prove dispossession within a period of twelve
years, i.e. the time period within which the claim of adverse
possession has to be made.
8.2 In the above terms, the judgment and decree of the Trial Court
was confirmed and the appeal was dismissed.
PROCEEDING BEFORE THE HIGH COURT
9. The High Court under Second Appeal framed the following substantial
questions of law:
a) Whether in law the courts below are right in failing to
see that under Section 19 of the Transfer of Property
Act, a vested interest is not defeated by the death of
the transferee before the possession.
b) Whether in law the courts below are not wrong in
omitting to see that the matter in issue would be
squarely covered by the illustrations (i) and (iii) of
Section 119 of the Indian Succession Act?
c) Whether in law the courts below are right in failing to
see that a limited interest owner could not prescribe
title by adverse possession as held in AIR 1961
SCC 1442?
9.1 Having taken note of various decisions, the learned Single
Judge held that the interest vested in Saroja was full and not
life interest. Therefore, upon her death,, the interest does not
revert to the settlor. In other words, that Saroja died before her
interest stood fructified, is an incorrect statement. It is only the
[2024] 2 S.C.R. 335
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
right of enjoyment that stood postponed till the life interest of
Raghavulu Naidu and Munusamy Naidu.
9.2 On the question of limitation, it was observed that the documents
executed between Thayammal, her sons and subsequently,
Pavanummal and Vasantha, were only in respect of life interest
i.e. a limited right. The other two deeds of settlement executed
after the First Settlement Deed are against or beyond the
competency of the executants and therefore, not binding on the
plaintiff. That being the case the requirement of twelve years
within which to initiate a suit, does not arise. Further, it was held
that since, in the suit, the life estate holder has been impleaded
in the suit and Gopalakrishnan had the option of filing the suit
even after her lifetime, the same is not barred by limitation.
9.3 It was in such terms that it was held that according to the First
Settlement Deed the plaintiff will be entitled to half share of
the property after the lifetime of Vasantha, a life estate holder.
SUBMISSIONS
10. We have heard at length, Mr. Dama Seshadri Naidu, learned senior
counsel for the Appellants and Mr. V. Ramasubramanian, learned
counsel for the Respondents. The main contentions urged have
been recorded as under:-
A. APPELLANTS
(i) 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 Kothari
(3-Judge Bench)8 and National Textile Corporation Ltd.
v. Nareshkumar Badrikumar Jagad (2-Judge Bench)9
, a
question of law can be raised at any stage.
(ii) 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
8 [1950] 1 SCR 852
9 [2011] 14 SCR 472 : (2011) 12 SCC 695
336 [2024] 2 S.C.R.
Digital Supreme Court Reports
was made to Fateh Bibi v. Char̥an Dass (3-Judge Bench)10.
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 (2-Judge Bench)11.
(iii) 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. Reference is made
to Ram Saran & Anr. v. Ganga Devi (3-Judge Bench)13, Vinay
Krishna v. Keshav Chandra & Anr. (3-Judge Bench)14 and
UOI v. Ibrahim Uddin (2-Judge Bench)15.
(iv) It is submitted that Article 65 Explanation (a) read with Section
27 of the Limitation Act, 1963 hits the right of Gopalkrishnan.
Succession to the estate only accrues on the death of the life
estate holder which was in 2004. Till date, no suit stands filed.
The learned senior counsel relied on Goplakrishna (Dead)
Through LRs v. Narayanagowda(Dead) Through LRs(2-
Judge Bench)16.
(v) It is argued that the right of Saroja created as per the First
Settlement Deed was in fact a contingent interest. It states that
if Munusamy has a male heir then one half will belong to him
and Saroja will get the other half after the life of Raghavulu
and Munusamy. Therefore, on her death in 1951, her interest
was spes successionis i.e. it did not achieve concrete form
and is only an expectation of succeeding. The contingency
10 [1970] 3 SCR 953 : (1970) 1 SCC 658
11 [1978] 2 SCR 614 : (1978) 2 SCC 91
12 “SRA, 1963”
13 (1973) 2 SCC 60
14 (1993) Supp 3 SCC 129
15 [2012] 8 SCR 35 : (2012) 8 SCC 148
16 [2019] 6 SCR 382 : (2019) 4 SCC 592
[2024] 2 S.C.R. 337
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
upon which Saroja’s interest rests is two-fold; Munusamy
either having or not having children. If he does, they would
get half share; if he doesn’t then two eventualities exist: half
of Munusamy’s share goes to Saroja upon his death, and the
other half after the life interest of Pavunammal is exhausted,
goes to Saroja, the remainder woman. Reliance is placed on
Harmath Kaur v. Inder Bahadur Singh17. Further, reliance is
placed on Mahadeo Prasad Singh18 to state that when there
is an expectation simpliciter of succession, neither a transfer
nor a contract to transfer is permissible.
B. RESPONDENTS
(i) 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, 188219,
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 (2-Judge Bench)20.
(ii) 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.
(iii) 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 (2-Judge Bench) 21.
17 AIR 1922 PC 403
18 AIR 1931 PC 1989
19 “TPA”
20 [1985] Supp. 2 SCR 122 : (1985) 4 SCC 85
21 [2013] 12 SCR 368 : (2014) 2 SCC 788
338 [2024] 2 S.C.R.
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(iv) The enjoyment of the property bequeathed on Raghavulu
and Munusamy was in the nature of life interest. The Second
Settlement Deed, therefore, is hit by Section 6(d) of TPA. They
cannot convey a better title than they have received.
(v) None of the conditions mentioned in Section 126, TPA for
revocation/suspension of settlement are met in the present
case, meaning thereby that the settlement cannot be revoked.
(vi) Since the title to the properties stood vested in Saroja,
Gopalakrishnan had cause of action to file a suit for declaration.
The reason for filing of the suit in 1993 is a settlement deed
executed by Pavunammal in favour of Vasantha. Since the
former was alive the suit was filed without seeking the relief
of possession. It is submitted that the proviso uses the term
‘further relief’ which implies that such relief had to be available
on the date of filing the plaint which it was not as possession
rested with Pavunammal therefore, a suit only for declaration
was maintainable on the date of filing.
(vii) Reliance on Section 213 of the Indian Succession Act, 1925 is
misconceived as the same is only applicable to wills covered
by Section 57 (a) and (b) of the said Act i.e wills executed
within the local limits of the civil jurisdiction of the High Courts
of Bombay and Madras.
QUESTIONS FOR OUR CONSIDERATION
11. Various contentions have been canvassed by either party to the
dispute. However, if this Court is to decide those issues, two questions
must be considered at the threshold. They are:-
(i) Whether Gopalakrishnan’s suit for declaration based on the
First Settlement Deed, eventually filed in the year 1993 barred
by limitation?
(ii) Whether the suit for declaration simpliciter was maintainable
in view of Section 34 of the SRA, 1963?
To emphasise, we restate that if the answer to the aforementioned
questions is in the affirmative, we need not refer to the other
contentions raised across the bar.
[2024] 2 S.C.R. 339
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
ANALYSIS & CONSIDERATION
ISSUE 1
12. The provisions of the Limitation Act, 1963 relevant to the instant
dispute, i.e, Section 27 and Articles 58 and 65 of the First Schedule
to the Act, are reproduced hereinbelow for ready reference:-
“27. Extinguishment of right to property.—At the
determination of the period hereby limited to any person
for instituting a suit for possession of any property, his
right to such property shall be extinguished.
Art. Description
of suit
Period
of
limitation
Time from
which period
begins to run
58. To obtain any other
declaration.
Three
years
When the right
to sue first
accrues.
65. For possession of
immovable property
or any interest
therein based on
title.
Twelve
years
When the
possession of
the defendant
becomes
adverse to the
plaintiff.
Explanation.- For the purposes of this article--
(a) Where the suit is by a remainderman, a
reversioner (other than a landlord) or a
devisee, the possession of the defendant
shall be deemed to become adverse only
when the estate of the remainderman,
reversioner or devisee, as the case may be,
falls into possession;…”
13. We notice that before us, are different interpretations of when the
limitation period would expire thereby making the possession of the suit
property, hostile to the rights supposedly vesting in Gopalakrishnan,
as the heir of Saroja upon whom, the First Settlement Deed vested
a right in the property. The learned Trial Court observed that, given
the contention of the original plaintiff (Gopalakrishnan) that the
340 [2024] 2 S.C.R.
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Second Settlement Deed was invalid, he ought to have challenged
the transfer caused thereby within 12 years of such date. Further, it
was observed that another possibility of challenge arose in 1974 when
Munasamy executed a settlement deed in favour of Vasantha and
subsequently in 1976, when another deed was executed in favour of
his wife, Pavanuaamal, his daughter. On both these occasions, the
heir of the alleged vested interest of Saroja, was silent. Therefore, on
both counts the suit filed by Gopalakrishnan was barred by limitation.
The First Appellate Court agreed with this reasoning.
14. On the other hand, the learned senior counsel for the Appellants
has contended, if at all, Gopalakrishnan has a right in the disputed
property, then the period of limitation for establishing the adverse
possession of Vasantha began in the year 2004 upon the death of
the life estate holder i.e, Pavanuaamal, then by 2016 Vasantha had
perfected the title by adverse possession. Since no suit for recovery
of possession stands filed till date, Gopalakrishnan’s claim today is
barred by limitation.
15. The question before us is, from when will the period of limitation run,
for Gopalakrishnan to stake a claim on the properties?
16. If the period of limitation is to run from the date of the Second
Settlement Deed, then the rights should be extinguished in 1964. If
the same were to run from either 1974 or 1976, then after 1986 or
1988 respectively, Gopalakrishnan had no right in the property on
the plea of adverse possession.
17. We notice that this Court in Gopalakrishna (supra) had observed
that a reversioner ordinarily must file a suit for possession within 12
years from the death of the limited heir or widow. That metric being
applied to the instant facts, it is after the death of Pavunammal,
that the reversioner, or in this case the heir of the reversioner
(Gopalakrishnan) ought to have filed the suit. The suit, the subject
matter of appeal before us is a suit for declaration simpliciter and not
possession. So, the possession still rests with heir of Pavunammal.
The twelve-year period stood expired in 2016 (with the death of
Pavanummal in the year 2004) therefore, in our considered view,
the suit is barred by limitation, which was filed in 1993.
18. The learned counsel for the respondents contended that since the
suit stood filed in respect of the property, the clock for adverse
[2024] 2 S.C.R. 341
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
possession stopped ticking. He relied on Tribhuvanshankar (supra)
to buttress this claim.
19. A perusal of the said decision shows a reference has been made
to Sultan Khan v. State of MP22 to hold that if a suit for recovery of
possession has been filed then the time period for adverse possession
is arrested. The instant decision is distinguishable from the current
set of facts on two grounds: one, that the holding of the Madhya
Pradesh High Court was in respect of Section 248 of the MP Land
Revenue Code and had been referenced in an appeal arising from
the State of MP itself; two, in the present facts, Gopalakrishnan has
filed only a suit for declaration and not one for possession. The said
declaration suit was filed in the year 1993. It was after the death of
Pavunammal (in 2004) that the relief of possession became available
to him. However, no such relief has been claimed. This decision does
not in any way support the claim of the respondents.
20. In Saroop Singh v. Banto (2-Judge Bench)23, this Court observed
that Article 65 states that the starting point of limitation does not
commence from the date when the right of ownership arises to the
plaintiff but commences from the date the defendant’s possession
becomes adverse. Further relying on Karnataka Board of Wakf
v. Govt. of India (2-Judge Bench)24, it observed that the physical
fact of exclusive possession and the animus possidendi to hold
as owner in exclusion to the actual owner are the most important
factors that are to be accounted in cases related to adverse
possession. Plea of adverse possession is not a pure question of
law but a blend of fact and law. Therefore, a person who claims
adverse possession should show : (a) on what date he came into
possession; (b) what was the nature of his possession; (c) whether
the factum of possession was known to the other party; (d) how
long his possession has continued; and (e) his possession was
open and undisturbed. A person pleading adverse possession has
no equities in his favour. Since he is trying to defeat the rights of
the true owner, it is for him to clearly plead and establish all facts
necessary to prove his adverse possession.
22 1991 MP LJ 81
23 [2005] Supp. (4) SCR 253 : (2005) 8 SCC 330
24 [2004] Supp. (1) SCR 255 : (2004) 10 SCC 779
342 [2024] 2 S.C.R.
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21. This Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai
Harijan (2-Judge Bench)25, reiterating the observations made in
P.T. Munichikkanna Reddy v. Revamma (2-Judge Bench)26 in
respect of the concept of adverse possession observed that efficacy
of adverse possession law in most jurisdictions depends on strong
limitation statutes by operation of which, right to access the court
expires through efflux of time. As against the rights of the paperowner, in the context of adverse possession, there evolves a set of
competing rights in favour of the adverse possessor who has, for
a long period of time, cared for the land, developed it, as against
the owner of the property who has ignored the property. Modern
statutes of limitation operate, as a rule, not only to cut off one’s
right to bring an action for the recovery of property that has been in
the adverse possession of another for a specified time but also to
vest the possessor with title. The intention of such statutes is not to
punish one who neglects to assert rights but to protect those who
have maintained the possession of property for the time specified
by the statute under a claim of right or colour of title.
22. In Bharat Barrel and Drum Mfg. Co. Ltd. v. ESI Corpn.27, (2-Judge
Bench) while discussing the object of Limitation Act, this Court
opined that:
“ ….The law of limitation appertains to remedies because
the rule is that claims in respect of rights cannot be
entertained if not commenced within the time prescribed
by the statute in respect of that right. Apart from Legislative
action prescribing the time, there is no period of limitation
recognised under the general law and therefore any time
fixed by the statute is necessarily to be arbitrary. A statute
prescribing limitation however does not confer a right of
action nor speaking generally does not confer on a person
a right to relief which has been barred by efflux of time
prescribed by the law. The necessity for enacting periods
of limitation is to ensure that actions are commenced
within a particular period, firstly to assure the availability
25 [2008] 13 SCR 818 : (2009) 16 SCC 517
26 [2007] 5 SCR 491 : (2007) 6 SCC 59
27 [1972] 1 SCR 867 : (1971) 2 SCC 860
[2024] 2 S.C.R. 343
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
of evidence documentary as well as oral to enable the
defendant to contest the claim against him; secondly to
give effect to the principle that law does not assist a person
who is inactive and sleeps over his rights by allowing
them when challenged or disputed to remain dormant
without asseting them in a court of law. The principle which
forms the basis of this rule is expressed in the maximum
vigilantibus, non dermientibus, jura subveniunt (the laws
give help to those who are watchful and not to those who
sleep). Therefore the object of the statutes of limitations
is to compel a person to exercise his right of action within
a reasonable time as also to discourage and suppress
stale, fake or fraudulent claims While this is so there are
two aspects of the statutes of limitation the one concerns
the extinguishment of the right if a claim or action is not
commenced with a particular time and the other merely bare
the claim without affecting the right which either remains
merely as a moral obligation or can be availed of to furnish
the consideration for a fresh enforceable obligation. Where
a statute, prescribing the limitation extinguishes the right,
it affects substantive rights while that which purely pertains
to the commencement of action without touching the right
is said to be procedural.…”
(Emphasis Supplied)
23. Part III of the Schedule to the Limitation Act details the time period
within which the declarations may be sought for: (a) declaration of
forgery of an instrument either issued or registered; (b) declaring
an adoption to be invalid or never having taken place; and (c) to
obtain any other declaration. Point (c) or in other words Article 58
governs the present dispute. This Court has in Shakti Bhog Food
Industries Ltd. v. Central Bank of India28, (3-Judge Bench)
taken note of Article 58 of the Limitation Act 1963 vis-a-vis Article
113(Any suit for which no period of limitation stands provided in
the Schedule) and observed that the right to sue accrues ‘from
the date on which the cause of action arose first’. In the present
case, the suit for declaration was filed in 1993. This implies that the
28 [2020] 6 SCR 538 : (2020) 17 SCC 260
344 [2024] 2 S.C.R.
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cause of action to seek any other declaration i.e. a declaration of
Gopalakrishnan in the property, should have arisen only in the year
1990. There is nothing on record to show any cause of action having
arisen at this point in time. The possible causes of action would be
at the time of the Second Settlement Deed (1952) or Munusamy’s
deed of settlement in favour of Pavunammal(1976) or at the time of
Pavunammal’s vesting of the property in favour of Vasantha (1993)
or at the death of Pavunammal (2004) where apart from declaration,
he ought to have sought the relief of possession as well. It is clear
from the record that on no such possible occasion, a declaration
was sought, much less within the stipulated period of three years.
ISSUE II
24. We now proceed to examine whether the suit for declaration simpliciter
was maintainable in view of Section 34 of the SRA, 1963.
25. Section 34 reads as:
34. Discretion of Court as to declaration of status or
right.-
Any person entitled to any legal character, or to any right
as to any property, may institute a suit against any person
denying, or interested to deny, his title to such character
or right, and the Court may in its discretion make therein
a declaration that he is so entitled, and the plaintiff need
not in such suit ask for any further relief:
Provided that no Court shall make any such declaration
where the plaintiff, being able to seek further relief than
a mere declaration of title, omits to do so.
(Emphasis Supplied)
26. The learned senior counsel for the appellant has contended that it
has been settled by the Courts below that the appellant has been
in possession of the subject property since 1976. In view of the
proviso to Section 34, the suit of the plaintiff could not have been
decreed since the plaintiff sought for mere declaration without the
consequential relief of recovery of possession.
27. The learned counsel for the Respondent, in rebuttal, contended that
since at the time of filing of the suit, the life interest holder was alive,
she was entitled to be in possession of the property and therefore,
[2024] 2 S.C.R. 345
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
the Plaintiff not being entitled to possession at the time of institution
of the suit, recovery of possession could not have been sought.
28. We now proceed to examine the law on this issue. As submitted by
the learned senior counsel for the Appellant, in Vinay Krishna v.
Keshav Chandra (2-Judge Bench)29, this Court while considering
Section 42 of the erstwhile Specific Relief Act, 1877 to be pari materia
with Section 34 of SRA, 1963 observed that the plaintiff’s not being
in possession of the property in that case ought to have amended
the plaint for the relief of recovery of possession in view of the bar
included by the proviso.
29. This position has been followed by this Court in Union of India v.
Ibrahim Uddin (2-Judge Bench)30, elaborated the position of a suit
filed without the consequential relief. It was observed:
“55. The section provides that courts have discretion as
to declaration of status or right, however, it carves out an
exception that a court shall not make any such declaration
of status or right where the complainant, being able to seek
further relief than a mere declaration of title, omits to do so.
56. In Ram Saran v. Ganga Devi [(1973) 2 SCC 60] this
Court had categorically held that the suit seeking for
declaration of title of ownership but where possession
is not sought, is hit by the proviso of Section 34 of the
Specific Relief Act, 1963 and, thus, not maintainable. In
Vinay Krishna v. Keshav Chandra [1993 Supp (3) SCC
129] this Court dealt with a similar issue where the plaintiff
was not in exclusive possession of property and had filed
a suit seeking declaration of title of ownership. Similar
view has been reiterated observing that the suit was not
maintainable, if barred by the proviso to Section 34 of the
Specific Relief Act. (See also Gian Kaur v. Raghubir Singh
[(2011) 4 SCC 567)
57. In view of the above, the law becomes crystal clear
that it is not permissible to claim the relief of declaration
without seeking consequential relief.
29 1993 Supp (3) SCC 129
30 [2012] 8 SCR 35 : (2012) 8 SCC 148
346 [2024] 2 S.C.R.
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58. In the instant case, the suit for declaration of title of
ownership had been filed, though Respondent 1-plaintiff
was admittedly not in possession of the suit property. Thus,
the suit was barred by the provisions of Section 34 of the
Specific Relief Act and, therefore, ought to have been
dismissed solely on this ground. The High Court though
framed a substantial question on this point but for unknown
reasons did not consider it proper to decide the same.”
30. In Venkataraja and Ors. v. Vidyane Doureradjaperumal (Dead)
thr. LRs (2-Judge Bench)31, the purpose behind Section 34 was
elucidated by this Court. It was observed that the purpose behind
the inclusion of the proviso is to prevent multiplicity of proceedings.
It was further expounded that a mere declaratory decree remains
non-executable in most cases. This Court noted that the suit was
never amended, even at a later stage to seek the consequential relief
and therefore, it was held to be not maintainable. This position of law
has been reiterated recently in Akkamma and Ors. v. Vemavathi
and Ors. (2-Judge Bench)32.
31. This Court in Executive Officer, Arulmigu Chokkanatha Swamy
Koil Trust, Virudhunagar v. Chandran and Others (2-Judge
Bench)33 while reversing the High Court decree, observed that
because of Section 34 of the SRA, 1963, the plaintiff not being in
possession and claiming only declaratory relief, ought to have claimed
the relief of recovery of possession. It was held that the Trial Court
rightly dismissed the suit on the basis that the plaintiff has filed a
suit for a mere declaration without relief for recovery, which is clearly
not maintainable.
32. That apart, it is now well settled that the lapse of limitation bars
only the remedy but does not extinguish the title. Reference may be
made to Section 27 of the Limitation Act. This aspect was overlooked
entirely by the High Court in reversing the findings of the Courts
below. It was not justified for it to have overlooked the aspect of
limitation, particularly when deciding a dispute purely civil in nature.
31 [2013] 5 SCR 814 : (2014) 14 SCC 502
32 [2021] 10 SCR 1187 : 2021 SCC Online SC 1146
33 [2017] 5 SCR 473 : (2017) 3 SCC 702
[2024] 2 S.C.R. 347
Vasantha (Dead) Thr. Lr. v. Rajalakshmi @ Rajam (Dead) Thr.Lrs.
33. 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 suit34, even at the second appellate
stage35.
34. In view of the above, the second issue is answered in the favour of
the Appellants herein and against the Respondent.
CONCLUSION
35. As evidenced from the discussion hereinabove, the judgment
impugned before us fails scrutiny at the threshold stage itself, i.e.
on limitation as also maintainability of the suit. This being the case,
the judgment of the Trial Court in O.S. No. 726 of 1993 as also the
First Appellate Court in S.C. Appeal Suit 47/99 FTC-II Appeal Suit
113/2002 which dismissed the suit of Gopalkrishnan on the grounds
of limitation cannot be faulted with.
36. The impugned judgment in Second Appeal No. 1926 of 2004 dated
27th September 2012 titled as Gopalakrishnan & Anr. v. Vasantha
& Ors. is set aside. The appeal is allowed in the above terms.
Pending application(s) if any, shall stand disposed of. The holding in
the judgments of the Learned Trial Court as also the First Appellate
Court are restored.
Headnotes prepared by: Ankit Gyan Result of the case:
Appeal allowed.
34 Harcharan v. State of Haryana, (1982) 3 SCC 408 (2-Judge Bench)
35 Rajender Prasad v. Kayastha Pathshala, (1981) Supp 1 SCC 56 (2-Judge Bench)
