A. Ganesan, Pappayee Ammal, Marimuthu and Ammasi Ammal vs Palaniyappa Gounder, Anbalagan, Thangaraju and Velu

S. Ashok Kumar, J.—The defendants are the appellants in this second appeal.

The plaintiff filed the suit for declaration of title and for permanent injunction. According to the plaintiffs, the suit properties have been purchased

by the first plaintiff''s father from Arya Gounder and from his minor son, the first defendant, represented by his father Arya Gounder as guardian on

18.9.1946 under Ex.A.1 sale deed for a valuable consideration and since then they have been in continuous possession and enjoyment. The patta,

chitta adangal are standing in the name of the plaintiffs. Since the defendants interfere with the peaceful possession and enjoyment of the plaintiffs,

they have filed the suit for the reliefs prayed for.

The defence put forward by the defendants is that the first three items of the suit properties have been settled on the defendants 1 and 2 by the

first defendant''s father and second defendant''s husband Arya Gounder and they have been in physical possession of the same. As regards the 4th

item of the suit property, it was originally an inam land and thereafter it was transferred in the name of Ramayi Ammal, the grand mother of the first

defendant and subsequently it was in the possession of the defendants 1 and 2. Later, the defendants 1 and 2 sold the same to the defendants 3

and 4 8 months prior to the suit and now it is in the possession of the defendants 3 and 4. After settling the suit item No. 5, the said Arya Gounder

alleged to be living a wavered life and there has been strained relationship wit his wife, and taking advantage of the same, the first defendant''s

husband Ilavancholai under Ex.A.1 for the name sake obtained a sale deed and the same has not been acted upon or possession has been taken.

On the contrary, the properties are in continuous possession of the defendants 1 and 2 s per the gift deed. The plaintiffs have no manner of right,

interest or title in the suit properties. The suit is liable to be dismissed.

On the above pleadings and on hearing the learned Counsel appeared on either side and on a perusal of the evidence both oral and

documentary, the trial court decreed the suit. On appeal, by the defendants, the first appellate court also concurred with the findings of the trial

court and dismissed the first appeal. As against the concurrent findings of the courts below, the defendants have preferred this Second Appeal.

The following substantial questions of law were framed at the time of admission of the Second Appeal:

(i) Whether the right created in pursuance of the Deed of Settlement can be nullified without setting aside the same under due process of law?

(ii) Whether limited estate under Ex.B.1 given to the second defendant which has been enlarged u/s 14 of the Hindu Succession Act, 1956 can be

taken away by the said law who especially when the said law does not have any right to deal with the property already settled?

Learned counsel for the appellants/defendants contended that Ex.A.1 sale deed is five years later to Ex.B.1 gift deed and the defendants are in

possession of the suit properties. He also referred to the judgment of this Court made in S.A.No.752 an 753 of 1994, dated 28.2.2006 in support

of his contention that the properties settled in the name of the first defendant''s mother for her life interest under the gift deed gets enlarged into

absolute estate as per Section 14(1) of the Hindu Succession Act, 1956.

On the other hand, learned Counsel for the respondents/plaintiffs would contend that the plaintiffs are in possession of the suit properties since

18.9.1946 and all the revenue documents are standing in the name of the plaintiffs and both the courts have rightly concluded that Ex.B.1 gift deed

is not valid, the same was not given effect to and even the defendants have not prescribed title by adverse possession.

The factual matrix as to the relationship between the parties, and nature of suit properties being ancestral and the oral partition between the

predecessors of parties and allotment of respective shares and in that partition Arya Gounder, who is the second defendant''s husband was allotted

with the suit properties. According to the plaintiffs, they have been in possession of the suit properties after purchase under Ex.A.1 since

18.9.1946 and they have produced Exs.A.2 to 7 which are kist receipts. Ex.A.8 and 9 are pattas issued in respect of the suit properties in the

name of the plaintiffs. After execution of Ex.A.12, sale deed, the defendants 3 and 4 were in possession of the S.No.200/8. But the defendant''s

case is that as per the gift deed, Ex.B.1, dated 24.1.1941, executed in favour of the first defendant and his mother, the defendants are in

possession of the suit properties and as regards S.No.200/8, patta has been issued in favour of the first defendant in Ex.B.2 and they have sold the

same to the defendants 3 and 4 and subsequently the patta changed to their name. In respect of other properties, the patta stands in the name of

the first defendant and his mother, the second defendant. When they came to know that patta stands in the name of the plaintiffs in respect of some

of the suit properties, they filed a petition before the R.D.O, Sangagiri and after enquiry with the Village Administrative Officer and the Revenue

Inspector, the patta which stood in the name of the plaintiffs have been cancelled, which are Exs.B.6,7 and 8. The appeal filed by the plaintiffs

challenging the same has also been dismissed. The defendants have also produced kist receipts issued under Exs.B.9 to B.20.

As rightly pointed out by the first appellate court, Arya Gounder for himself and on behalf of the minor son the first defendant sold the suit

properties under Ex.A.1 to the plaintiffs. D.W.5, who was working in the Post Office, in his evidence deposed that the suit properties are in

possession and cultivation by the plaintiffs and not with the defendants 1 and 2. As rightly held by the first appellate court, Ex.B.1 gift deed, dated

21.1.1941 is only a copy of the gift deed and not the original. No reason has been given for non production of the original gift deed. At the time of

execution of Ex.B.1, gift deed, the first defendant was only 5 months old baby and the only person who can speak about the gift and taking of

possession is the 2nd defendant, his mother. But, she has not been examined as a witness and no reason has been adduced for non examination of

the second defendant. The first appellate court also has not accepted the reason assigned in the recitals for execution of the gift deed as the reason

assigned are not of written in the normal course. The first appellate court also held that the suit properties being ancestral properties, the said Arya

Gounder cannot bequeath the same to the second defendant for her life and after her life time to reach the hands of the donor himself and his heirs.

Thus the first appellate court held that Arya Gounder cannot gift the properties to defendants 1 and 2 as a member of the joint family. The first

appellate court also rightly held that the kist receipts produced by the defendants re subsequent to 1987 and prepare for the purpose of the case

and no such documents have been produced between 1941 to 1986. Thus on a perusal of Exs.B.9 to B.20, it cannot be concluded that the

defendants 1 and 2 were in possession of the suit properties as per Ex.B.1 gift deed. The first defendant also has not taken any legal action to

cancel the sale under Ex.A.1 within three years of attaining his majority.

As per Ex.A.19, dated 21.2.1941, the said Arya Gounder also dealt with some of the properties settled under Ex.B.1 and sold under Ex.A.1.

The said sale under Ex.A.19 is executed one month later to Ex.B.1 gift deed. Thus from the above it is clear that the defendants 1 and 2 have not

proved the execution of gift deed B.1 validly and possession has been handed over to them. The first appellate court rightly held that Exs.B.6 to 8

cannot be taken into consideration as it is held in the said orders of the revenue authorities that since civil dispute is pending before the Court as to

the ownership of the suit properties, and after disposal of the civil case, either of the succeeding party can approach the revenue authorities in that

regard. No document has also been produced to show that Ramayi Ammal had been in possession of the land in S.No.200/8. Sine the defendants

1 and 2 have not produced any document to show their possession in respect of the land in S.No.200/8, the subsequent sale to defendants 3 and

4 cannot also be true.

The first appellate court rightly rejected the claim of title by adverse possessions by the defendants since they have not proved their possession

to the knowledge of the other party. Thus the first appellate court came to the conclusion that Ex.B.1 gift deed is not valid as per law, the same did

not come into effect, possession has not been handed over to the defendants, the defendants also did not prescribe title by adverse possession and

the plaintiffs are entitled to the reliefs of title and permanent injunction.

As regards the question of laws and also the reliance placed on the earlier judgment rendered by me in S.A.No:752 and 753 of 1994, it has to

be held that in the said judgment the widow had a pre-existing right over the joint family property towards maintenance and accordingly this Court

after referring to the various decisions of the Apex Court held that Section 14(1) of the Hindu Succession Act, 1956 is applicable to the said case.

Admittedly in the present case such a ground has not been raised before both the courts below and only at the stage of second appeal such a

ground has been raised as a question of law. But benefit under this Section may be invoked even in the appellate stage as has been held by the

Supreme Court in Mahesh Chand Sharema v. Raj Kumari Sharma, reported in 1996 SC 869.

According to the learned Counsel for the appellants/defendants, since the second defendant got the property under Ex.B.1 dated 24.1.1941

i.e., prior to coming into force of the Hindu Succession Act 1956 and died only during 1991, on the coming into force of the Act, 1956, in the

absence of Ex.A.1 sale to the plaintiffs, her limited life estate enlarges and she became the full owner of the suit properties on the application of

Section 14(1) of the Act. To attract Section 14(1) of the Act, the following three conditions must be fulfilled: (i) the property must be possessed by

a Hindu female; (ii) the property possessed by her must have been acquired; and (iii) she must have been a limited owner thereof. In the present

case even the first condition has not been fulfilled and thus Section 14(1) cannot be attracted, because the same suit properties which were settled

or gifted on the second defendant who is the mother of the first defendant under Ex.B.1 on 24.1.1941, had been again sold under Ex.A.1 on

18.9.1946 namely ten years prior to the coming into force of the Hindu Succession Act, 1956. To invoke the benefit of Section 14(1) it is

necessary that the Hindu female should be in possession of the property on the day the Act came into force and that it is the acquisition of the

property which may be before or after the Act as has been held in Sumer Chand v. Ram Kishan Kaura, reported in 1991 Punjab & Haryana 103.

Thus where the properties are sold before the enforcement of Hindu Succession Act, the sale having been made prior to the commencement of the

1956 Act, the widow could not be said to be in possession of the property u/s 14(1) as has been held by the Apex Court in Naresh Kumari v.

Shakshi Lal 1999 (1) HLR 192 (SC). Since in the instant case as already stated above, the suit properties were sold under Ex.A.1 on 18.9.1946

to the plaintiffs by Arya Gounder, and they have been in possession of the same since then as concurrently found by the courts below, it cannot be

said that the second defendant was in possession of the suit properties u/s 14(1) so as to get the benefits of the said Section. Even the first

appellate court held that the gift made under Ex.B.1 itself is not valid. Hence in any view of the matter, Section 14(1) of the Hindu Succession Act

cannot be invoked to the present case. When once it is held that it is invalid in the eye of law, the same need not be set aside by due process of

law by filing another suit. Both the questions of law are answered accordingly.

In the result, the Second Appeal is dismissed confirming the judgment and decree of the first appellate court. No costs.