Kaliaperumal and Jayabal vs Kandasamy Padayachi

K. Mohan Ram, J.—The above second appeal has been filed by the defendants in O.S. No. 396 of 1995 on the file of the Additional

District Munsif Court, Ulundurpet, who succeeded before the Trial Court but lost before the First Appellate Court in A.S. No. 132 of 1997

where-under the learned Additional District Judge, Villupuram, reversed the judgment and decree of the Trial Court. The suit has been filed for

declaration of the plaintiff''s title to the suit property and for a consequential permanent injunction.

The case of the plaintiff is that the suit property originally belonged to one Krishna Pillai and from him one Ponnammal, W/o. Manicka

Padayachi purchased the same under a registered sale deed dated 05.05.1939; Ponnammal died intestate on 02.10.1942 leaving behind her only

daughter-Alamelu Ammal, who inherited the suit property and while she was in possession and enjoyment, sold the property to the plaintiff under a

registered sale deed dated 07.04.1980; from the date of purchase the plaintiff is in possession and enjoyment of the suit property covered by Patta

No. 90 and New Patta No. 82 was issued in his favour; plaintiff is paying the Kists; since the defendants tried to interfere with the possession of

the plaintiff he has filed the suit for declaration and for permanent injunction.

The defendants contested the suit inter-alia contending as follows:

The defendants admitted the title of Ponnammal but contended that Ponnammal has no separate source of income to purchase the suit property;

the suit property was purchased only from the funds and income derived from the Joint Family Properties of her husband-Manicka Padayachi. It is

contended that the suit property was purchased in the name of Ponnammal for the benefit of her minor sons-Rangasamy, Indi and Arumugam; after

her death, her sons inherited the suit property and they orally partitioned the same and in the partition the suit property was allotted to Rangasamy,

the elder son of Ponnammal and after his death, his only daughter inherited the same and on her death her husband-Chinasamy was in possession

and thereafter the said Chinnasamy and Arumugam, another son of Ponnammal, sold the same under a registered sale deed dated 03.03.1974 to

the second defendant who was a minor at that time and he was represented by his father the first defendant. It is the further case of the defendants

that the suit property was mortgaged by the defendants in favour of one Panduranga Asari and he is in possession as Bogyadar. It is further

contended that since the defendants are in possession for more than 20 years they have prescribed their title by adverse possession. On the

aforesaid pleadings they sought for dismissal of the suit.

The Trial Court has framed number of issues. During trial the plaintiff was examined as P.W.1 and one Venkatachalam has been examined as

P.W.2 and Masilamani, the attestor of Ex.A-3-sale deed has been examined as P.W.3, and on the side of the plaintiff Exs.A-1 to A-12 have been

marked. On the side of the defendants, the second defendant was examined as D.W.1, the first defendant has been examined as D.W.2 and

Arumugam, son of Ponnammal has been examined as D.W.3 and one Panduranga Asari has been examined as D.W.4 and on the side of the

defendants, Exs.B-1 to B-14 have been marked.

On a consideration of the oral and documentary evidence adduced in the case the Trial Court held that the suit property was purchased in the

name of Ponnammal, the female member of the family only, for the benefit of the minor sons and hence the vendor of the plaintiff had no valid title

to sell the suit property to the plaintiff and accordingly dismissed the suit with costs. Aggrieved by that, the plaintiff filed an appeal in A.S. No. 132

of 1997 before the Additional District Judge, Villupuram. The learned Additional District Judge, on an independent consideration of the oral and

documentary evidence adduced in the case, the findings and reasonings of the trial court, reversed the findings of the trial court and decreed the suit

as prayed for. Being aggrieved by that the above second respondent has been filed by the unsuccessful defendants.

While admitting the above second appeal the following substantial questions of law have been formulated:

(1) Whether the lower appellate Court is right in holding that Alamelu Ammal has succeeded to the suit property?

(2) Whether the plaintiff has established the possession of the vendor of the plaintiff and her title?

(3) Whether the suit is barred by limitation?

Mr. V. Raghavachari learned Counsel for the appellants submitted that Manicka Padayachi the husband of Ponnammal died four years prior to

the purchase under Ex.A-1 dated 05.05.1939 and Ponnammal was in management of the family; P.W.3-Arumugam, her son was a minor and

there is no evidence to show that Ponnammal had source of income and the lower appellate court has erred in shifting the burden of proof on the

defendants to prove the source of Ponnammal for purchasing the property when the burden is upon the plaintiff. He submitted that as evidenced by

Ex.A-2-death certificate Ponnammal died on 12.12.1942 and there is absolutely no documentary evidence available on record to show that

Alamelu Ammal was ever in enjoyment of the suit property from 1942 till the execution of the sale deed-Ex.A-3 dated 07.04.1980. He further

submitted that the plaintiff is admittedly a resident of Chemmankulam which is 15 Kms away from the suit property and Exs.A-4 to A-12 do not

establish the possession of either Alamelu Ammal or the plaintiff over the suit property. He further submitted that none of the persons connected

with Ex.A-3-sale deed have been examined but it is a misrepresentation of fact since P.W.3 Masilamani one of the attestors of Ex.A-3 has been

examined.

Learned Counsel for the appellants further submitted that when P.W.3 had proved his possession from 1942 onwards the lower appellate court

erred in holding that Alamelu Ammal had title to the suit property. He further submitted that in the absence of any evidence to show that either

Alamelu Ammal or the plaintiff was in possession right from 1939, the right if any of Alamelu Ammal had got extinguished u/s 27 of the Limitation

Act and the suit filed in the year 1995 is barred by limitation. He further submitted that when it has been specifically pleaded by the defendants that

Ex.A-3 sale deed had not been executed by Alamelu Ammal but the same has been executed by somebody else claiming herself to be Alamelu

Ammal, the plaintiff has not examined anybody connected with Ex.A-3-sale deed. He further submitted that to show that pursuant to Ex.B-1-sale

deed dated 03.03.1974 the defendants had been in continuous possession is evidenced from Exs.B-2 to B-13-Kist Receipts and Exs.B-14 and

B-15-Patta and Patta Passbook. In support of his contentions the learned Counsel relied upon the following decisions:

(i) Gnanasubramanian Vs. Subramaniaya Pillai and Others,

(ii) Ramiah Vs. N. Narayana Reddy (Dead) by LRs.,

(iii) Tej Narain and Another Vs. Shanti Swaroop Bohre and Another,

Countering the said submissions the learned Counsel for the plaintiff/respondent submitted that the trial court had not applied the correct legal

principles to the facts of the case and without understanding the correct legal principles and in the absence of any evidence to show that the joint

family of Manicka Padayachi and his sons owned any ancestral properties and such properties yielded any income and from that income the suit

property was purchased in the name of Ponnammal for the benefit of the joint family erroneously held that the suit property was purchased out of

the income derived from the joint family properties. He further submitted that the vendor had not described the suit property as ''Shridhana

Property'' of her mother-Ponnammal which had been relied upon by the trial court, but held that it is not the ''Shridhana'' property of her mother

Ponnammal. He further submitted that before coming into effect of the Hindu Succession Act 1956 if a property stood in the name of a female

member of a family the legal presumption was that it is her ''Shridhana Property'' and if any member of the co-parcenary claimed the same to be

joint family property and it was purchased in the name of the female member for the benefit of the joint family and from the income derived out of

the joint family properties, the burden is on the person who makes such a claim and the burden is not on the female member to show that the

property was not purchased from and out of the joint family nucleus. He further submitted that the well settled legal principle has been given a go-

by by the trial court which has resulted in the recording of an erroneous finding which necessitated the lower appellate court to interfere with the

findings. He further submitted that the reasonings recorded by the trial court have been considered and independent reasons have been recorded

by the lower appellate court for reversing the judgment of the trial court and hence no exception can be taken to the judgment of the lower

appellate court. He further submitted that the learned Counsel for the appellants have mis-represented as if none connected with Ex.A-3-sale deed

has been examined but infact P.W.3-Masilamani one of the attestors of Ex.A-3 has been examined who has testified that it was Alamelu Ammal

who had executed Ex.A-3. He further submitted that Ex.B-14-Patta has been issued in favour of the second defendant for the Fasli 1405 on

23.12.1996 that is about four years after the filing of the suit and in Ex.B-15-Patta Passbook issued in favour of Chinnasami no date whatsoever

has been mentioned but Patta No. 90 has been mentioned. He further submitted that after Ex.A-3-sale deed, the plaintiff was put in possession of

the suit property and he was in enjoyment of the same by paying Kists for Patta No. 90 for Faslis 1389 to 1393 as evidenced from Exs.A-5 and

A-6-Kist Receipts for Fasli 1393; Ex.A-4-Patta bearing No. 82 was issued in favour of the plaintiff and thereafter in respect of Patta No. 82 the

plaintiff had been paying the Kists for the suit property as evidenced by Exs.A-7 to A-12 up to Fasli 1403. He further submitted that the aforesaid

documents clearly establish the possession and enjoyment of the suit property by the plaintiff. He, by basing reliance on a decision of the Apex

Court reported in Karnataka Board of Wakf Vs. Government of India and Others, and more specifically the following observations contained in

paragraph 11 of the said decision, which reads as follows:

In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by

the owner even for a long time won''t affect his title. But the position will be altered when another person takes possession of the property and

asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. ...

submitted that Ponnammal being the true owner and on her death her sole family heir Alamelu Ammal having inherited the same is deemed to be in

possession of the property in the eye of law and after purchase from Alamelu Ammal the plaintiff is in continuous possession of the suit property is

evidenced by Exs.A-1 to A-12.

Learned Counsel for the respondent further submitted that none of the decisions referred to and relied upon by the learned Counsel for the

appellants are relevant for deciding the questions of law that arise for consideration in the above second appeal. He further submitted that in the

light of the following decisions of the Apex Court reported in, (i) Saroop Singh Vs. Banto and Others, , (ii) Gunwantbhai Mulchand Shah and

Others Vs. Anton Elis Farel and Others, , (iii) (2007) 4 MLJ 912 (SC) (P.T. Munichikkanna Reddy v. Revamma) and (iv) CDJ 2008 (SC) 1636

(Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Ors.), the submission of the learned Counsel for the appellants that the suit is barred

by limitation is liable to be rejected.

Learned Counsel for the respondent further submitted that when the defendants claimed that the suit property was subjected to usurfructory

mortgage in favour of D.W.4 and he was in possession of the suit property it was incumbent on them to have produced the mortgage deed to

prove the same and in the absence of any documentary evidence the said claim cannot be accepted.

I have carefully considered the aforesaid submissions made by the learned Counsel on either side, perused the materials available on record

and the decisions relied upon by the learned Counsel on either side.

The undisputed facts are that Ponnammal and Manicka Padayachi had one daughter-Alamelu Ammal and three sons, Rangasamy, Indi and

Arumugam. The suit property had been purchased under Ex.A-1-sale deed dated 05.05.1939 in the name of Ponnammal from one Krishnapillai.

As evidenced by Ex.A-2-death certificate, Ponnammal died on 02.10.1942. It is not in dispute that Alamelu Ammal is the only female heir of

Ponnammal. It is the specific case of the plaintiff that the suit property was the ''Shridhana Property'' of Ponnammal and on her death on

02.10.1942 her only female heir is her daughter-Alamelu Ammal and she, as the lawful owner, had sold the suit property under Ex.A-3-dated

07.04.1980 for valuable consideration in favour of the plaintiff. It has been specifically pleaded in the written statement by the defendants that

Manicka Padayachi pre-deceased his wife Ponnammal. Manicka Padayachi and his sons possessed joint family ancestral properties. Since the

children were minors Ponnammal as their guardian was managing the joint family properties and from-and-out of the income derived from the joint

family property the suit property was purchased under the name of Ponnammal on 05.05.1939 and Ponnammal was not the real owner of the

property but the property belonged to the joint family and it is their further case that in the year 1970 there was an oral partition in the joint family

and in that partition the suit property was allotted to the share of Rangasamy but it is pertinent to point out that the aforesaid plea has not been

established by any acceptable evidence. D.W.3-Arumugam another son of Manicka Padayachi and Ponnammal has not spoken to anything in his

chief examination supporting the aforesaid pleadings contained in the written statement. In his chief examination D.W.3 has stated that he do not

know whether the plaintiff is in possession of the suit property pursuant to his purchase. In his cross-examination he has stated that he is not aware

of the survey number and the extent of the suit property. Suppressingly D.W.3 in his cross examination claims that he is in possession of the suit

property and he has candidly admitted that there is absolutely no evidence to show that the suit property belonged to Rangasamy. In the re-

examination he has stated that his mother was taking care of them by obtaining the ancestral property from his father and from the income derived

from the ancestral property the suit property was purchased in the name of his mother and his mother had no separate income of her own. In his

further cross-examination D.W.3 has admitted that there are no documents to show that there was ancestral property in the name of his father and

grand father. In his entire evidence D.W.3 has not stated the details of the alleged ancestral property belonging to the joint family like the extent,

survey number, etc., D.W.3 has not even whispered about the income that was derived by the joint family from the ancestral properties and he has

not even whispered that there was any surplus income at all and by using the surplus income derived from the joint family nucleus the suit property

was purchased in the name of the mother for the benefit of the joint family. These aspects have been fully considered by the lower appellate court

and the lower appellate court has pointed out that the non-consideration of these vital aspects by the trial court has vitiated its findings.

The lower appellate court by applying the legal principles enunciated in the decisions reported in C.K. Krishnan Vs. C.K. Shanmugham and

Others, and (1968) 81 L.W. 426 (Nagasamy Naidu v. Kochadai Naidu) to the facts of this case has observed that a vague plea has been made in

the written statement that Manicka Padayachi has ancestral properties and after his death his wife Ponnammal was managing the same out of the

funds and out of the income from these properties she purchased in her name for the benefit of the minors under a sale deed dated 05.05.1939 the

suit properties but there is no evidence to substantiate the same.

The lower appellate court on a consideration of the recitals relating to the passing of consideration under Ex.A-1-sale deed has held that the

entire sale consideration has been paid by Ponnammal for purchasing the suit property and has also pointed out that there is absolutely no evidence

to show that there was income yielding lands for the joint family and accordingly held that the defendants have not discharged the burden to prove

that the joint family either had ancestral properties or from the joint family properties sufficient income was realised and by using such funds the

property was purchased for the benefit of the minors in the name of Ponnammal. On such reasonings the lower appellate court has recorded a

finding that Ponnammal was the legal owner of the property and as such the plaintiff had derived valid title under Ex.A-1-sale deed. The lower

appellate court has also pointed out that the possession of the plaintiff has been proved from the issue of Ex.A-4-Patta in favour of the plaintiff and

the payment of Kists under Exs.A-5 to A-12. The lower appellate court has also pointed out that no patta has been produced by the defendants

and the patta-Ex.B-14 issued in the name of the second defendant is for the Fasli 1405 i.e. after four years from the date of filing of the suit and

hence no importance can be attached to Ex.B-14.

At this juncture it has to be pointed out that Ex.B-15-Patta Passbook pertaining to Patta No. 90 though stands in the name of Chinnasamy one

of the vendors of the defendants, there is no evidence to show that as to when the same was issued and not even a single Kist Receipt has been

produced to show that either Rangasamy or Arumugam or Chinnasamy paid the Kists for the suit property at any point of time.

It is pertinent to point out that in Ex.B-1 there is absolutely no mention about the alleged oral partition pleaded in the written statement.

Another vital aspect which has been pointed out by the lower appellate court is that in Ex.B-1-Sale deed though the market value of the property

has been mentioned as Rs. 2,300/- the sale deed has been executed for a sale consideration of Rs. 300/- only and has therefore pointed out that

the sale under Ex.B-1 cannot be considered to be a genuine sale. As rightly pointed out by the lower appellate court the vendors under Ex.B-1 has

not been established by any acceptable evidence that the vendors under Ex.B-1 had any title to convey the suit property in favour of the second

defendant.

The contention of the learned Counsel for the appellants that Exs.B-2 to B-15 will prove the possession of the defendant is concerned, it has

to be pointed out that Exs.B-2 to B-15-Kist Receipts stand in the name of Kalia Perumal the first defendant in respect of Patta No. 90 for the

Faslis 1385, 1387 to 1389. A perusal of Ex.B-6-Kist Receipt shows that the Kist has been paid for Faslis 1389 to 1391 in respect of Patta No.

90 and in respect of Ex.B-6 both the names of Kandasamy (plaintiff) and Jayapaul (D-1) have been mentioned. Likewise, a perusal of Exs.B-7

and B-8 shows that for Faslis 1395 and 1394 Kists has been paid in respect of Patta No. 82 in the name of Kandasamy and Jeyapaul and for

Fasli 1391 in respect of Patta No. 90 and Exs.B-9 to B-11 Kist Receipts stand in the name of Kaliaperumal in respect of Patta No. 82 and Ex.B-

12-Kist Receipt pertaining to Patta No. 82 for fasli 1401 stands in the name of Jeyapaul. It is pertinent to pint out that as per Ex.B-13 Kist

Receipt pertaining to Patta No. 82 for Fasli 1402 it is mentioned that the Kist has been paid on behalf of the Kandasamy (plaintiff) by Kalia

perumal.

The aforesaid kist receipts reveal that no patta has been issued in favour of either Kaliaperumal or Jeyapaul as rightly pointed out by the lower

appellate court; whereas kists has been paid in the joint name of the plaintiff and the defendants for some Faslis. A perusal of Ex.B-14-patta as

already pointed out shows that it has been issued for Fasli 1405 i.e., four years after the filing of the suit on 23.12.1996 and therefore no

importance can be attached to the same. As already pointed out that Ex.B-15-Patta Passbook standing in the name of Chinnasami Padayachi

bearing Patta No. 90 does not reveal as to when the same was issued and as already pointed out not even a single Kist Receipt has been

produced to show that Chinnasamy Padayachi was paying Kists in his name.

All these above aspects show that the finding of the lower appellate court that the plaintiff was in possession and enjoyment of the suit property

cannot be faulted with. Whereas the trial court has not properly considered all the aforesaid documentary evidence and the trial court has not

drawn proper inference from these documents. It has to be pointed out that the trial court has not applied the correct legal principles applicable to

the facts of this case and therefore the lower appellate court has rightly interfered with the findings and reasonings of the trial court.

It has to be pointed out that the 2nd and 3rd substantial questions of law goes together. Learned Counsel for the appellants by basing reliance

on Section 27 of the Limitation Act submitted that the right of Alamelu Ammal and the plaintiff got extinguished since they were not in possession

of the suit property right from 1942 onwards that is the date of death of Ponnammal. The aforesaid contention has to be rejected in the light of the

aforesaid discussion of mine and because of the finding of possession recorded in favour of the plaintiff.

Further it has to be pointed out that in the decision reported in AIR 2005 SC 4407 (referred to supra) in paragraph 26 the Apex Court has

laid down as under:

The Statutory provisions of the Limitation Act have undergone a change when compared to the terms of Article 142 and 144 of the schedule

appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his

possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of

Articles 64 and 65 of the Limitation Act, 1963. In the instant case, plaintiff-respondents have proved their title and, thus, it was for the first

defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-Appellant did not raise any plea of

adverse possession. In that view of the matter the suit was not barred.

The aforesaid legal principle has been reiterated in the decision reported in 2007 (4) MLJ 912 (SC) (referred to supra) and CDJ 2008 (SC) 1636

(referred to supra).

In Gunwantbhai Mulchand Shah and Others Vs. Anton Elis Farel and Others, the Hon''ble Apex Court while considering the question of

Limitation has pointed out that Section 27 of the Limitation Act provides for extinguishment of right to property only at the determination of the

period limited by the Limitation Act for instituting the suit for possession. In the said decision in paragraph 12 the Apex Court has observed as

under:

... We have noticed that the plaintiffs have pleaded that they are in possession of the suit property and since it is not a suit for possession as

such, the applicability of Section 27 of the Limitation Act also may not arise. ...

It has to be pointed out that the suit filed by the plaintiff is for declaration and permanent injunction and not for recovery of possession and as

such the above said principles laid down in Gunwantbhai Mulchand Shah and Others Vs. Anton Elis Farel and Others, squarely apply and

therefore the contention of the learned Counsel for the appellant basing reliance on Section 27 of the Limitation Act has to be rejected. Likewise in

the light of the law laid down in Saroop Singh Vs. Banto and Others, since the defendants have not proved acquisition of title by adverse

possession the suit is not barred by limitation.

For the aforesaid reasons the substantial questions of law are answered against the appellants and in favour of the respondent. Accordingly the

above second appeal fails and the same is dismissed with cost throughout.