Diraviyam Pillai vs Kamalam Ammal alias Deivanai Ammal and Others

Bellie, J.—The plaintiff who lost his case in the trial court is the appellant, His suit for declaration of his title and for recovery of possession of the suit properties and for mesne profits has been dismissed.

The eight items of suit properties originally belonged to one Piramanayagam Pillai. In respect of the suit properties he executed a registered settlement deed Ex. A-13 on 29.11.1943 in favour of his mother and wife giving them joint life-interest without any right of alienation or creating any mortgage or charge and enjoining on them to do certain poojas in his family temple by spending Rs. 25 every year out of the profits of the properties. These two ladies died during the life-time of Piramanayagam. After their lifetime the properties were to devolve as stated in the settlement deed. It appears Piramanayagam himself has executed sale deeds in favour of the defendants stating in the sale deeds themselves that the settlement deed executed by him is not valid, and in pursuance of those sale deeds the defendants are in possession. Piramanayagam had no right to execute such sale deeds. The plaintiffs paternal grandfather is the brother of the Piramanayagam Pillai''s father. Thus he is an agnate of Piramanayagam Pillai. He is the only male relation of Piramanayagam Pillai. As per the settlement deed only he will be entitled to the suit properties. The sale deeds executed by Piramanayagam are not valid since he had already under the settlement deed given up his right. The defendants are trespassers. On these grounds the '' suit has been filed for declaration of title and recovery of possession, and mesne profits.

The first defendant contended that the property in his occupation has been purchased by him from the settles and neither Piramanayagam nor the plaintiff has any right in that property. He denied the alleged relationship of the plaintiff with Piramanayagam. He also contended that in any way he has perfected title by adverse possession. The second and third defendants have, in respect of the properties in their possession, contended that the alleged settlement deed by Piramanayagam is not valid as it is opposed to the rule of perpectuity and it was not acted upon, and they purchased the properties from Piramanayagam Pillai. The plaintiff has no right in the properties. They also contended that the suit is barred by limitation. Defendants 4, 6 and 8 in their joint written statement would contend that the fourth defendant purchased the property in his possession from one Arunachalam Pillai on 25.10.74 and the sixth defendant has purchased the property in his occupation from one Paramasivam Pillai and two others on 10.5.1971 and these vendors had in their turn purchased the properties under court sales held on 18.7.1952. Eighth defendant has obtained an othi and is in possession under it. She has perfected title by adverse possession. Defendants 5 and 7 in their written statement would contend that the fifth defendant purchased a property from Piramanayagam Pillai for valuable consideration, and the Piramanayagam''s daughter is still alive and the plaintiff cannot claim any right. Seventh defendant has pleaded that he purchased the property in his occupation from Ponnammal-daughter of Piramanayagam on 16.1.1966 and in any event he has prefected title by adverse possession.

On the above pleadings and on consideration of the evidence the trial court held that the settlement deed Ex. A-13, dated 29.11.1943, executed by Piramanayagam Pillai is true and valid and acted upon, and a charge has been created for doing Pooja in the temple by spending a sum of Rs. 25 from the income of the properties. It further held that Piramanayagam Pillai had a daughter by name Ponnammal and as per the settlement deed after the life-time of his mother and wife the said daughter Ponnammal could be entitled to the properties and not the plaintiff. He further held that it is true that the plaintiff is an agnate of Piramanayagam Pillai as stated by him. He also held that in consideration of his finding that the plaintiff cannot have title to the suit properties, the question whether the defendants have perfected title by adverse possession against the plaintiff will not arise. On these findings the trial court, in the result, dismissed the suit but without costs. The plaintiff has filed the appeal.

The defendants have filed cross objection as against the findings of the trial court which are against them, and against the disallowance of costs.

Mr. K.v. Subramaniam, learned Counsel for pie appellant-plaintiff contends that the trial court has grievously erred in interpreting the settlement deed Ex. A-13 and holding that order after the lifetime of the mother and wife of the settlor only thesettlor''s daughter would be entitled to the property and not the plaintiff. While as Mr. M.N. Padmanabhan, learned Counsel for the respondent-defendants who are the cross objectors would contend that even if it is to be held that only the plaintiff would be entitled to the properties and not the daughter of the settlor as per the terms of the settlement deed, the defendants have perfected title to the properties by adverse possession and the before the plaintiff cannot claim any right. No other points were argued. The before the abovesaid two points raise by the learned Counsel fail for consideration in the appeal.

Now the relevant portion of the settlement deed which has been extracted in the plaint reads as follows:

It is clear from a reading of this that thesettlor Piramanayagam''s mother and wife will enjoy the suit properties during their life-time and they have been enjoined to spend Rs. 25 per annum for the temple described in the second schedule in the settlement deed. They have been inhibited not to in any way dispose of or encumber the properties.

The controversy arises only with regard to the subsequent recital as to the will succeed after thesettlor''s mother and wife. In this regard the word ''Puthirasanthanam'' is important. According to the plaintiff''Puthirasanthanam'' only means male issue but according to the defendants it includes female issue also. To my mind there is absolutely no difficulty in understanding this word because the word ''Puthiran'' means son and the before ''Puthirasanthanam'' means only male issues and it cannot, by any stretch of imagination, mean female issue also. As against the word ''puthiran'' meaning male issue the word ''puthiri'' is there meaning female issue. The before when it is stated ''Puthirasanthanam'' it only means male issue. The meaning given to ''Puthirasanthanam'' in the dictionary (Tamil Lexicon Vol. V, Part I, Published by the University of Madras) is male issue.

A careful reading of the recitals of the settlement deed would show that thesettlor was primarily interested in the performance of the ''Varushabdeeka'' Pooja in the month of Karthigai every year in the temple by spending Rs. 25 from the income, of the properties. From this it appears highly probable that thesettlor wanted the properties to be held by a male heir who will be in the village and do the pooja rather than a female heir who will on her marriage go to some other village and the before she might not be able to do the pooja and lose interest in doing pooja.

Another circumstance that has to be considered is that there is no dispute that the properties were held by Piramanayagam Pillai as his ancestral property, and that being the case, as argued by Mr. Subramaniam, in the year of settlement i.e., in 1943 the daughters had no right in the ancestral property and could be thinking of it thesettlor thought of writing only male issue. The further recital in the document is, if Piramanayagam Pillai had no heir his nearest male agnates will have the right to possess and enjoy the properties. It must be remembered here that from his mentioning of nearest male agnate in the event of his having no heir it would stand to reason that when he had said ''Puthirasanthanam'' he would have meant by that only a male heir. Thus it is manifest that thesettlor intended that only his male heirs would be entitled to the properties.

The learned trial Judge also would agree that the word ''Puthirasanthanam'' is a masculine word and this would mean only the male heir but however, stating that a female heir has not been expressly excluded in the document he would hold that the word ''Puthirasanthanam'' would include daughters also. I cannot at all agree with this reasoning of the learned trial Judge. When thesettlor has stated that his male heir would be entitled to the properties, to make his intention clear he need not state that his female heirs will not be entitled to it.

Now, it has been held by the trial court that the plaintiff is the nearest male agnate of Piramanayagam, and that is not disputed. The before as per the document only he will be entitled to the properties and not Ponnammal, daughter of Piramanayagam. The before disagreeing with the finding of the trial court I hold that under the document the plaintiff will be entitled to the properties.

Coming to the next question i.e., whether the defendants have perfected title by adverse possession, I am of the . view that the defendants would succeed on this point and the before the plaintiff cannot get declaration of title and possession. Now having executed Ex. A-13 settlement deed in 1943 Piramanayagam Pillai had no right whatsoever in the properties. The before he had no right to sell the properties. Now all the sale deeds executed in favour of some of the defendants are either by Piramanayagam Pillai, or by his mother Gomathiammal and his wife Gnanasoundariammal or by any one of them, and some are by Piramanayagam Pillai''s daughter Ponnammal. As stated above, Piramanayagam Pillai had no right whatsoever after the settlement deed. Gomathiammal and Gnanasoundariammal are prohibited by the settlement deed itself from selling or mortgaging the properties. We have held above that Ponnammal had no right. The before, the defendants have been in possession of the properties under invalid sale deeds or mortgage deeds. Gomathiammal died on 31.3.1960 and Gnanasoundariammal died on 23.10.1964. Until Gnanasoundariammal died on 23.10.1964 the plaintiff had no right to seek for possession from them, since his right accrues only then. From then on the possession of the defendants either under the invalid sale deeds or invalid mortgage deeds are adverse to the right of the plaintiff. The before u/s 65 of the Limitation Act he ought to have got possession of those properties within 12 years from 23.10.1964. The suit has been filed only on 6.1.1979, i.e., long after 12 years. The before it is clear that all the defendants have perfected title by adverse possession and by reason of that the plaintiff has lost his right entitled to under the settlement deed. Hence the suit is liable to be dismissed. The before, the dismissal of the suit by the trial court even though on some other reason has to be held to be correct. Thus there is no merit in the appeal.

Now in the cross objection the defendants have also raised a point that while dismissing the suit the trial court should have awarded costs to them, but it has wrongly disallowed costs. Considering the fact that the trial court has on a wrong finding that under the settlement deed the plaintiff has no right, dismissed the suit and now purely on the finding that the defendants have perfected title by adverse possession the appeal is dismissed, I am of the view that it would be just and proper not to allow any costs either in the trial court or here.

In the result, the appeal is dismissed without costs, and the cross objection with regard to the question of adverse possession is allowed, but with regard to the question of costs it is dismissed. There will be no order as to costs in the cross objection.