1. This Civil Suit has been filed by the plaintiff for seeking relief of declaration that the plaintiff is the absolute owner of the suit schedule properties and to direct the 1st defendant to hand over the original title deeds and vacant possession of the suit schedule properties hereunder, and to direct the 1st defendant to pay a sum of Rs.40,000/- (rupees forty thousand only) per month towards past mesne profits from 01.03.2015 until the filing of the suit, i.e. 02.03.2018, and to appoint an advocate commissioner to conduct an enquiry in respect of future mesne profit of the suit schedule property and to pay the cost of this suit.

2. The plaintiff is alleged that he is the owner of the suit property. By virtue of a family partition deed dated 27.04.1890 among the five sharers, one share fell jointly to late T.Aiyakannu Pillai and late T.Ratnasabapathy Pillai. The above share is described as under:

(i) House and ground at No.5, Chandrabanu Street, Komaleeswarpet, Chennai 600 002.

(ii) Land and building situated at R.S.No.755/7, old no.12/13, New No.14, Devaraj Mudali Street, Triplicane, Chennai 600 005.

2.1. The plaintiff's grandfather T.Aiyakannu Pillai and grandmother Roopavathi Ammal had two daughters and five sons. Out of five sons, one son by name Subramanian died at younger age and another son by name T.Natanasabai separated from the family and executed a registered release deed dated 02.07.1915. Out of the remaining 3 sons namely T.Kanakasabai Pillai, T.Rajasabai Pillai and T.Panchachara Pillai, T.Rajassabai Pillai alone got married to one Ranjitha Booshani and had two sons and eight daughters. At present only one daughter Chitra, the second defendant herein and one son who is the plaintiff herein are alive.

2.2. After the sudden demise of late T.Aiyakannu Pillai, his wife Roopavathi Ammal took possession of both the properties and arrived at a valuation of Rs.10,000/- for the property situated at No.5, Chandranbanu Street, Chennai-600 002 and Rs.3,000/- being half share for the property situated at Devaraj Mudali Street, Triplicane, Chennai-600 005, totalling to Rs.13,000/-. The said amount of Rs.3,000/- was borrowed from T.Rathnasabapathy Pilliai by selling half share of the property at Devaraj Mudali Street, Triplicane, Chennai600 005 to him through a registered sale deed under document No.560/1924 and a registered partition deed among sons and wife of T.Aiyakannu Pillai under document No.911/1924 on the file of the Sub Registrar Office, Triplicane.

2.3. T.Rathnasabapathy Pillai remained as a bachelor and his brothers sons were living away and hence the 1 st defendant herein had utilized the prevailing situation and thereby illegally took possession of the premises situated at R.S.No.755/7, old NO.12/13, New No.14, Devaraj Mudali Street, Triplicane, Chennai 600 005 which is the first item herein. They installed name board in the name of 'Rathnasabapathy Pillai Home for Girls' and claimed that it is a Trust for charity. After due verification, the plaintiff came to understand that there is no such Trust in existence. Because the said premises was under lock and key for more than five decades. As on date the said building is in dilapidated condition.

2.4. The plaintiff's grandfather T.Rathnassabapathy Pillai had self acquired property namely Item II of the suit schedule property situated at R.S.No.3044 at Door No.2/60 and 4/59, Arunachalam Street, Triplicane, Chennai 600 005 and the 1 st defendant had taken possession of the said properties also. The building thereon in the Item II of the suit schedule properties are also in a dilapidated condition. The defendant had let out the said premises and he is enjoying rent derived from it. The 1 st defendant is not paying any rent to the plaintiff till date. The 1 st defendant have no right or authority to be in continuing possession of the said premises under lock and key. Since the building is in dilapidated condition it is threat to the neighbours around there.

2.5. The plaintiff issued a legal notice dated 07.12.2017 calling upon the 1 st defendant to handover the vacant possession of the suit properties within a period of 15 days from the date of receipt of this notice. The 1 st defendant had given an evasive reply notice dated 27.12.2017 that the suit properties are self acquired properties of Rao Shahib T.Rathnasabapathy Pillai in his name through a registered document and he established a Trust as early as on 1928 and that the 1 st defendant is one of the Trustees of the said Trust. The plaintiff gave a fitting rejoinder notice by stating that the contentions of the reply notice are all false.

2.6. The plaintiff submitted that he is the owner of the suit properties who inherited the same from T.Rathnasabapathy Pillai, the 1 st defendant had high-handedly trespassed into the suit property 10 years back. During the life time of T.Rathnasabapathy Pillai, the grandfather of the 1 st defendant Nataraja Pillai some how managed to get all the original title deeds of the suit properties from him and now the same is with the 1 st defendant and hence, the 1 st defendant is liable to return the same to the plaintiff and handover the vacant possession of the suit properties. Hence the plaintiff has filed this suit to declare that the plaintiff is the absolute owner of the suit property and direct the 1st defendant to hand over the original title deeds and vacant possession of the suit schedule properties hereunder, and to direct the 1 st defendant to pay a sum of Rs.40,000/- (rupees forty thousand only) per month towards past mesne profits from 01.03.2015 until the filing of the suit, i.e. 02.03.2018, and to appoint an Advocate Commissioner to conduct an enquiry in respect of future mesne profit of the suit schedule property along with costs.

3. At present the plaintiff and his sister Chitra alone are the legal heirs that are alive and they are the legal heirs of Rathnasapathi Pillai. The 2 nd defendant remained ex-parte. During the pendency of the suit the 1 st defendant died and his legal heir is impleaded as 3 rd defendant herein.

4. The 1 st defendant is the brother of the 3 rd defendant who died on 23.06.2018. The 3 rd defendant is a complete stranger to this suit and as against the 3 rd defendant, there is no cause of action. The plaintiff and the 2 nd defendant do not have any connection with the suit scheduled properties. Half share in the suit schedule properties devolved on late T.Aiyakannu Pillai and half share to late T.Rathnasabapathy Pillai by way of a Partition deed alleged to have been made on 27.04.1890. The said partition document was not filed along with the plaint.

4.1. As per the averments of the plaintiff, the father of T.Aiyakannu Pillai namely Periya Thambi naickar and the father of T.Rathnasabapathy Pillai namely Ponnu Samy Naickar are born through the same father and they were brothers. No documentary proof has been produced to show that T.Kanakasabai Pillai, T.Rajasabai Pillai and T.Panchachara Pillai are the sons of T.Aiyakannu Pillai. There is no proof or document filed by the plaintiff and the 2 nd defendant are the children of late T.Rajasabai Pillai. The death certificate of T.Rajasabai Pillai does not contain the name of the father and mother of late T.Rajasabai Pilai. So it is not known whether the T.Rajasabai is the son of late T.Aiyakannu Pillai. Even if Rajasabai Pillai is admitted for the sake of argument that he was the son of the Aiyakannupillai, the date and age shown in the death certificate would make it impossible for the 1 st respondent/ plaintiff to claim that he is the son of late T.Rajasabai Pillai.

4.2. Because the death certificate would show that T.Rajasabai Pillai died on 16.01.1967 at the age of 79 years. The 2 nd defendant was aged at 73 years and the plaintiff was aged 69 years as on March 2018. In such case, T.Rajasabai Pillai was 61 years old when the plaintiff was born. The plaintiff has stated that his father had two sons and eight daughters. But the plaintiff did not implead all the other children of T.Rajasabai Pillai as parties to the suit. The entire plaint is a figment of imagination tainted with clever drafting to create an illusion of a relationship between the 1 st respondent/plaintiff with the suit property to make vexatious claim of ownership over the suit property. When all the legal heirs of late Aiyakannu Pillai who were alive and available as on 1924, have relinquished their rights over the half share of the suit scheduled property in favour of late T.Rathnasabapathy Pillai as early as on 1924 itself.

4.3. The plaintiff and the 2 nd defendant who claim to be the legal heirs of late T.Aiyakannu Pillai, were not at all born in 1924. In such case, they cannot have any right in the scheduled mentioned properties which was available in that time when they were born subsequently. The plaintiff had made contradictory statements in his plaint. The plaintiff did not produce any proof to show that T.Rathnasabapathy Pillai was the grandfather of the 1 st respondent / plaintiff because even as per the averments of the plaintiff, Rathnasabapathy was a bachelor. The plaintiff has got no cause of action for the suit and this suit ought to have been rejected at the threshold stage itself.

4.4. It is the submission of the plaintiff that the 1 st defendant and thereafter the 3 rd defendant as his legal heir, were in possession of the suit scheduled properties. He has no knowledge about the existence of the Trust and home for girls in the name of 'Rathnasabapathy Pillai Home for Girls'. He himself has produced Document No.17 which is a corporation tax receipt of the Item No.1 of the suit scheduled property which stood in the name of 'Rathnasabapathy Pillai Home for Girls'. The 'Rathnasabapathy Pillai Home for Girls' came into existence through a Will of late T.Rathnasabapathy Pillai in the year 1929.The Board of Trustees are governing the affairs of the property and the 1 st defendant was one of the trustees of the Trust. The 3 rd defendant who is the sister of the 1 st defendant and the sole legal heir of the 1 st defendant remains away from the above said Trust till date. The suit does not even include the Trust as a party. The 1 st defendant or the 3 rd defendant had never claimed any individual right over the suit property and hence the entire suit is a vexatious one. Since the cause of action is said to have been arisen in the year 1924, the suit is barred by limitation. No explanation is given in the plaint as how the suit is filed nearly after 94 years.

5. On the basis of the above pleadings and materials available on record, this Court has framed the following issues:

“(i) Whether the plaintiff is the absolute owner of the suit properties

(ii) Whether the first defendant is liable to hand over the original title deeds to vacate the vacant possession of the suit schedule properties to the plaintiff

(iii) whether the first defendant is liable to pay a sum of Rs.40,000/- [Rupees forty thousand only] per month towards mesne profits from 0103.2015 till the date of handing over the possession

(iv) Whether the plaintiff is entitled for the costs of the suit

(v) To what other relief the plaintiff is entitled to

6. During the course of the trial, on the side of the plaintiff, the plaintiff examined himself as PW.1 and Ex.P.1 to Ex P.30 were marked. On the side of the defendants, no evidence was marked.

7. The plaintiff is said to be the son of one T.Rajasabai Pillai. Rajasabai Pillai is one of the sons of T.Aiaykannu Pillai. As per the case of the plaintiff, T.Aiyakannu Pillai and T.Rathnasabapathy Pillai have entered into a Partition deed in the year 1890 with other members of the family and the suit scheduled properties were jointly allotted to their sharers. But the half share of Aiyakannu Pillai have already been sold in favour of other sharer T.Rathnasabapathy Pillai himself in the year 1924. So the plaintiff's ancestor Aiyakannu Pillai had lost his right in the suit property even before the plaintiff was born.

8. It is a strange case where even the 1 st defendant and thereafter his legal heir, third defendant did not claim any right or title in the suit property. The one and only submission made by the 3 rd defendant is that a Trust was already there and it was constituted by Rathanasabapathy Pillai while he was alive and there are board of trustees available to manage the properties of the Trust. The suit property is said to be the properties belonged to the trust and on which the plaintiff cannot claim any right or title. The plaintiff's documents did not show any continuity of enjoyment of the plaintiff's father and thereafter by the plaintiff or by his other brother and sisters.

9. As rightly stated by the 3 rd defendant in his written statement the plaintiff has not chosen to include all the legal heirs of T.Rajasabai Pillai as parties to the suit. The plaintiff who did not have any connection with the suit property, all of a sudden claims title over the suit property. From the death certificate of Rajasabai Pillai, it can only be presumed that the plaintiff was born when the Rajasabai Pillai was 61 years old. More than the above fact it is difficult to connect the plaintiff's father with the alleged ancestors and the branch of Rathnasabhapathy Pillai and the plaintiff's document do not establish any connectivity to the genealogy drawn by the plaintiff.

10. When the plaintiff was examined as PW.1, he was not able to say the fathers name of Rathnasabhapathhy Pillai. Hence no reliance can be placed on the genealogy attached to the plaint through which the plaintiff tries to trace his relationship with the Rathanasabhapathy Pillai with some other alleged ancestors. Ex.P3 is a sale deed through which the plaintiff's ancestor has sold the alleged share in the suit property in favour of Rathnasabhapathy Pillai. The plaintiff himself claims as a grandson of the Rathinasabhapathy Pillai and he also says that Rathnasabhapathy Pillai did not have any children and remained bachelor. The plaintiff has given explanation for this conflict by stating that the father of his grandfather Aiyakannu Pillai and the father of Rathnasabhapathy Pillai were brothers. He claims that he is the descendant of the Aiyakannu Pillai branch and he treats Rathanasabhapathy Pillai as his grand father. But in his evidence he could not say even the father’s name of Rathnasabapathy Pillai.

11. It is interesting to note that the answers given by the plaintiff to the questions posed to him about his knowledge about the property in the year 2018. The plaintiff gave the following answers to the questions No.46 to 50 and they are extracted as under:

“Q46: How did you become aware of the property in 2018

A: i came to know through my close relative who is also a resident of Triplicane and he just asked me where are you now and whether you are at Chandrabanu street or in Triplicane. Then he said about the suit property.

Q47.Can you tell his name

A:V.B.Balasoundara Rajan

Q48. Can you produce him as a witness

A:He is no more.

Q49.When did he die

A:6 or 7 years back. I am not sure about the date.

Q50.Is this the same person who told you that the 1 st defendant took possession of the suit property & title documents

A:I do not know.

Q51.Did you visit the property after you got information of that person

A:Yes.

Q52: What was going on in the suit property when you visited that

A:1 st item of the property was locked and it was in dilapidated condition the 2 nd item of the suit property was rented out to working staffs of Kings restaurant.

Q53:In para 5 of your poof affidavit you stated that there was name board of Rathina Sabapathy pillai home for girls

A:Yes.

Q54: In your proof affidavit you state that after due verification I come to understand that there is no such trust is in existence in the name of Rathina Sabapathy Pillai home for girls. In what verification did you say

A:I verified with District Registrar, Triplicane whether there is any registered trust in the name of Rathina Sabapathy Pillai Home for girls, they answered No.

Q55:Was everything oral

A:No, I gave a written representation I got a written reply from District Registrar.

Q56: Have you produced into court

A.No.”

12. The defendant claimed that the Trust was created in respect of the suit property by the original owner Rathnasabhapathy and he is one of the board of Trustees. Even the defendant did not produce any documents to show that Rathnasabhapathy Pillai has created the Trust and that he sold the trusteeship in the same. Just because the defendants were able to produce any documents to show their interest in the suit property a decree in favour of the plaintiff cannot be granted that the plaintiff is the owner of the suit property.

13. If the 3 rd defendant has got no connection to the suit property, but he is in enjoyment of the suit property in some manner or other, the plaintiff has got every right to inform the matter to the government that the suit property is heirless property and it should be taken by the government. Without producing any concrete document to sustain the claim of the plaintiff and without producing any document to show that the suit property was at any point of time in the enjoyment of the plaintiff's father or the other siblings to the plaintiff in their alleged capacity as the legal heirs of Rathnasabhapathy Pillai, the plaintiff can not claim any title over the property. The plaintiff's claim over the suit property is not based on any continuity of title or any strong foundation for his title. Just because the plaintiff who was prompted by someone that the suit property belongs to his ancestors, he cannot come up with a suit and claim that he is the legal heir of Rathanasabhapathy Pillai and that he is the original owner of the suit property. As already pointed out if the 3 rd defendant is in unlawful enjoyment of the suit property without any authority, the plaintiff is always at liberty to report the matter to the government for taking action by the Government for managing the property or the trust by taking recourse to sec. 29 of the Hindu Succession Act (Escheat) read with sec.296 of the Constitution of India.

14. In this regard it is relevant to refer the judgement of this bench held in OP.No.108 of 2019 dated 23.08.2023 reported in 2023 (4) LW 342. In the said case it is held as under:

„ 12. The one and only course open to the first petitioner is to transfer the asset to the Administrator-General by an instrument in writing under his hand and under gazette notification in accordance with Sec.22 of the Administrator General Act. Sec.22 of the said Act prescribes as under:

Sec. 22. Transfer by private executor or administrator of interest under probate or letters.—

(1) Any private executor or administrator may, with the previous consent of the Administrator-General of the State in which any of the assets of the estate, in respect of which such executor or administrator has obtained probate or letters of administration, are situate, by an instrument in writing under his hand notified in the Official Gazette, transfer the assets of the estate, vested in him by virtue of such probate or letters to the Administrator-General by that name or any other sufficient description.

(2) As from the date of such transfer, the transferor shall be exempt from all liability as such executor or administrator, as the case may be, except in respect of acts done before the date of such transfer, and the Administrator-General shall have the rights which he would have had, and be subject to the liabilities to which he would have been subject, if the probate or letters of administration, as the case may be, had been granted to him by that name at the date of such transfer.

13. In case the Administrator General does not give his consent for getting the transfer of the property and its Administration upon him, then the property has to be treated as a heirless property. Even though the owner of the property had executed the Will on 30. 03.1967, the Will does not state anything about how the inheritance in respect of the property has to take place. In the said Will the first petitioner’s father and after him his eldest male legal heir has been just given with the responsibility of administering the properties for the purpose of fulfilling certain objectives.

14. If the first petitioner is not able to continue the administration or the property itself has become dilapidated and lost its potential to rear any income, without considerable investment towards repair or reconstruction and the eldest male legal heirs of the executor also finds it not possible to do so, then the trust will come to a halt by itself and the property will become an abandoned property or a property left without any heir.

15. At the risk of repetition it is reiterated that the first petitioner’s father or his eldest male legal heirs were not given with any absolute right to deal with the property. In fact the so called Will explicitly injuncts the first petitioner’s father or his male legal heirs from assuming any right to sell or encumber the properties.

16. In such case, Sec.29 of the Hindu Succession Act read with Article 296 of Constitution of India can be invoked. Sec.29 speaks about Escheat. The provision of Sec.29 of the Hindu Succession Act reads as below:

Escheat Sec.29 of the Hidu Succession Act 1956

Failure of heirs.-If an intestate has left no heir qualified to succeed to his or her property in accordance with the provisions of this Act, such property shall devolve on the Government; and the Government shall take the property subject to all the obligations and liabilities to which an heir would have been subject.

17. Even though the testator had made a testamentary disposition, that is for the limited purpose of carrying out certain functions set out in the Will by appointing an Executor/Trustee and giving the right of inheritance of the trusteeship to the eldest male descendants of the Executor /Trustee. In the absence of any other trustee mentioned in the Will and the named trustee is incapable of managing and fulfilling the objects, the property has to be considered as a property falling under Escheat only. As per Article 296 of Constitution of India, property left without any legal heir to succeed would be vested in the State. So it is the Government which will exercise right over the properties of the owner, if it is abandoned due to the inability of the first petitioner or his male legal heirs. For the sake of completion Article 296 of the Constitution of India is reproduced herewith:

Article 296 of the Constitution Of India

296. Property accruing by escheat or lapse or as bona vacantia Subject as hereinafter provided any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall, if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union: Provided that any property which at the date when it would have so accrued to His Majesty or to the Ruler of an Indian State was in the possession or under the control of the Government of India or the Government of a State shall, according as the purposes for which it was then used or held were purposes of the Union or a State, vest in the Union or in that State Explanation In the article, the expressions Ruler and Indian State have the same meanings as in Article 363.

18. So in all probabilities neither the first petitioner nor any one else has got any right either in their individual capacity they assume upon themselves including the capacity of the Administrator to sell away the properties. The value fixed for the property also very meagre and it can not in any way match the market value of the property, which is situated in a potential area at Chennai. The permission sought by the first petitioner to sell the property is against the wishes of the testator and hence such a permission can not be granted.

15. So it is upto the plaintiff to report the matter to the Government if there is no bonafide legal heir for the owner of the property or if the property is in occupation and enjoyment of some third party due to the inaction on the part of the Government. When any action is initiated by the Government in respect of the suit property or any alleged trust in respect of the property, the interested parties can make their submission before the Appropriate Authority or surrender the possession of the suit property to the government through the AG & OT or any other lawful means, if the Government comes to the conclusion that the suit property is fit to be considered as bona vacantia.

16. In the result, this suit is dismissed with out cost. And a Copy of this judgement is ordered to be marked to the Appropriate Authority of the Government for initiating appropriate action.