Marappa Gounder and Others vs Palaniammal and Others

S.S. Subramani, J.—Defendants 4, 5 and 6 in O.S. No. 996 of 1985 on the file of the District Munsif, Karur are the appellants before this

Court.

The parties herein will be referred to according to their rank in the suit.

Plaintiff in the above suit sought for a declaration of her title and possession over the plaint ''A'' sched-ule properties and consequently for a

grant of injunction restraining the defendants, their men, servants and agents from in any manner interfering with her possession of ''A'' schedule

properties.

Alternatively, it is claimed for a decree for partition of ''B'' schedule properties into 3 equal shares and 1/3 share be allotted to her. She also

prayed for mesne profits and costs. The material averments in the plaint may be summarised as follows.

Plaint A schedule properties are portions of B schedule property. It is averred that the B schedule properties are joint properties belonging to

plaintiff''s father Kaliappa Gounder and the predecessors of the defendants 1 or 3 and 4 to 6. Along with the plaint, the plaintiff filed a genealogical

table showing how she is related to the defendants. It is averred that the ''B'' Schedule properties which include ''A'' Schedule properties properties

which include A Schedule properties were not divided into metes and bounds. But the plaintiff''s father and other sharers namely 7th defendant,

father of defendants 1 to 3 and 4 to 6 were enjoying 1/3 of the share property. On the basis of such enjoyment, it is stated that the plaintiff''s father

was in possession of A schedule properties and the remaining 2/3 share was in possession of 7th defendant and the father of the defendants 1 to 3

and 4 to 6. It is stated that the kist for the property was also paid in the joint names. It is further averred that on 14.6.1928, the plaintiff''s father

executed a Registered Will in favour of the plaintiff when she was a minor. It is duly attested by the witnesses and during her minority, the property

was enjoyed by her mother and later she came into possession of the same. It is submitted by the plaintiff''s counsel that as a legal heir of her father

and a legatee of the Will, she is interested in ''A'' Schedule properties. The plaintiff married and was with her husband for some time. Later she got

re-married with another person belonging to a different community and was living in a different place and even during that time, she was paying kist

for the property due to her share. It is stated that the defendants, who are the sharers of the other two third shares in the ''B'' Schedule properties,

are now disputing the title of the plaintiff to the ''A'' Schedule property and they are attempting to alienate the properties. They claim title to

themselves. An attempt has been made by the plaintiff calling upon them not to include the ''A'' Schedule properties in the proposed alienation, but

a reply has been received disputing the right of the plaintiff over any portion schedule properties and they have also preferred a claim for the entire

''A'' Schedule properties. it is stated that the claim put forward by the defendants in the reply notice cannot legally stand and therefore, the present

suit is filed for declaration of her right over the ''A'' Schedule properties and for other relief for which mention has been made earlier.

In the written statement filed by the sixth defendant, it is admitted that the ''B'' Schedule properties originally belonged to the family of the

plaintiff''s father and also their predecessors. The contents of the Will is also disputed. According to them, no such Will has been executed by the

late Kaliappa Gounder. in the plaint, two properties are included. One is in Survey No. 374 and the other is in Survey No. 411. In regard to

Survey No. 374, it is of an extent of 7 acres and 81 cents situate in Thanthoni Village. The entire extent originally belonged the three brothers

namely, Sellappa Gounder, Kaliappa Gounder and Karuppanna Gounder, each entitled to 1/3 share over the same. It is stated that the brothers

divided the properties by metes and bounds and the share which belonged to Kaliappa Gounder was mortgaged by him in favour of Narikattiyur

Cooperative Credit Soci-ety for the dues to the society. The property mortgaged, that is the share of Kaliappa Gounder was brought to sale and

the same was purchased by the Society itself. Thereafter, the society sold that share to the father of the defendants 4 to 6, Sellappa Gounder on

11.6.1936. It is therefore contended that so far as the Survey No. 374 is concerned, whatever the right Kaliappa Gounder had is lost by the

auction and the subsequent sale in favour of the father of de-fendants 4 to 6.

So far as the Survey No. 411 is concerned, it is alleged that Kaliappa Gounder himself sold the property and from the purchaser, their father

purchased it on 7.6.1921 for valid consideration. Therefore, no properties are available for partition as claimed by the plaintiff. It is also contended

that the suit is barred by limitation and adverse possession.

The trial court as per decree dated 3.4.1989 came to the conclusion that the plaintiff is not entitled to any remedy. It further found that the

alleged Will executed by Kaliappa Gounder is not proved. Even if there is a Will, that will not confer any title on the plaintiff since her deceased

father was not having any right at the time when he died. The sale by the auction was found to be valid. Likewise, in so far as the Survey No. 412

is concerned, the sale deed of the year 1919 executed by the late Kaliappa Gounder was also found to be valid. The suit was therefore dismissed.

Aggrieved by the judgment, the plaintiff preferred A.S. No. 140 of 1990 on the file of the Subordinate Judge, Karur. The lower appellate court

received additional evidence and finally came to the conclusion that the plaintiff is entitled to the property and granted a decree declaring the title in

favour of the plaintiff. The lower appellate court held that the Will to be genuine, even though only a registration copy has been filed. It further came

to the conclusion that even though Kaliappa Gounder might have executed a sale deed in the year 1919, there is nothing to show that the sale came

into effect and the defendants are in possession of the same. It has further found that so far as Survey No. 374 is concerned, even though there

might have been a sale by the society, by the time, the sale took place, Kaliappa Gounder was dead and the plaintiff was only a minor represented

by her mother. The lower appellate court was of the view that since the plaintiff was only a minor at that time, she can ignore the sale. In that view,

it further found that the plaintiff is in possession of the ''A'' Schedule properties and granted decree declaring her title over the same. A-l have said,

before the lower appellate court, additional evidence was let in by marking Exs. A-7 to A-ll.

It is against that Judgment, the defendants 4 to 6 have filed this second appeal.

At the time of admission, the following substantial questions of law were raised:

(1) Whether in law, the plaintiff had proved the execution and attestation of Ex. A-l Will without examining the attestor or witness and without

producing the original?

(2) Whether in law, the plaintiff is entitled to claim plaint ''A'' Schedule properties either under Ex. A-1 or as heir of her father Kalianna alias

Kaliappa Gounder, when the title and possession have al-ready been lost by her father during his life time?

I will consider both the questions of law. Before the institution of the suit, the plaintiff issued a notice dated 2.6.1985. In that notice, there is no

reference to Survey No. 411. In that notice it is only stated in Survey No. 374, her father was entitled to 1/3 of the share and she wanted the

defendants not to include the same in their proposed alienation. There is no reference to the Will referred to by the plaintiff in the notice. A reply

was sent which is marked as Ex. A-5. In the reply, a specific reference has been made to the mortgage executed by Kaliappa Gounder in favour

of the Cooperative Society and the subsequent sale by the society in favour of Sellappa Gounder on 11.6.1936. In the reply, it is specifically stated

that the plaintiff is not entitled to any portion of the Survey No. 374.

In this connection, it has to be noted that since no mention has been made to Survey No. 411, in reply also no reference has been made to that

property. The trial court as well as lower appellate court has found that there was mortgage by Kaliappa Gounder in favour of the Cooperative

Society for the dues to the Society, and that 1/3 share belonging to Kaliappa Gounder in Survey No. 374 was brought to sale and purchased by

the Society as per Ex. B-4 and it sold the same to Sellappa Gounder, father of the defendants 4 to 6''herein. the trial court discarded the evidence

of the plaintiff in regard to to Survey No. 374 for the reason that at the time of Kaliappa Gounder''s death, he did not have any right over the

property in Survey No. 374. When the matter was taken on appeal, the lower appellate court also found that there is a sale by the society, but, it

was of the view that by the time the society sold the property in auction, the original debtor was dead and the plaintiff was only a minor. The lower

appellate court failed to note that the property was brought to sale after the plaintiff was impleaded in the case and the plaintiff''s mother was acting

as guardian. It was after notice that the property was brought for sale and the same is purchased by the society. Even though the property was sold

after informing the plaintiff no attempt was made by her to have the sale set aside. It is for a debt due from her father. When the property was sold,

while she was a minor. But, when she was properly represented by her guardian-mother, it is not a void sale which could be ignored and the same

cannot be ignored. The plaintiff has not taken any steps in that regard till date and on the date of the suit, she was more than 65 and both the courts

have found that there Was a sale by Kaliappa Gounder. The plaintiff can claim right over the same only if the said Kaliappa Gounder got right over

the property. Admittedly, Kaliappa Gounder died long before 1936.

Insofar as Survey No. 411 is concerned, I have already stated that no claim was made in the notice for that property. It is seen from Ex. B-2

dated 24.9.1919, Kaliappa Gounder himself sold the property in favour of Kalianna Gounder. There he says that he is selling 1/3 share in Survey

No. 411. It was thereafter purchased by Sellappa Gounder, father of the appellants, and it is evidenced by Ex. B-7 dated 7.6.1921. From these

documents, it is clear that even with regard to Survey No. 411, Kaliappa Gounder did not have any right at the time of his death.

The lower appellate court was of the view that in the sale deed, there is nothing to show that the same came into effect. If only the lower

appellate court has taken Ex. B-7 sale deed which is a sale by the purchaser, this finding would not have been entered. That apart, the continued

possession of the appellants and their father over the property was also not seriously considered by the lower appellate court. It is clear that the

lower appellate court relied on Ex. A-1 Will. Ex. A-1 is a registration copy of a Will alleged to have been executed by Kaliappa Gounder. At the

time of marking the document, the same was opposed by the appellants and in spite of their objection, the same was marked subject to proof.

The lower appellate court was of the opinion that Ex. B-2 might not have come into effect, if Kaliappa Gounder has already sold the property

since it is included in Ex. A-1. There is nothing in the case to show that Kaliappa Gounder executed a will except for the production of a

registration copy. The same is specifically denied in the written statement. In the notice issued by plaintiff, there is no reference to Ex. A-1. The

plaintiff also does not say as to what has happened to the original Will and how far the secondary evidence can be adduced. She also does not

think of adducing any evidence to prove Ex. A-1. Even in the proceedings before the trial court, Ex. A-1 is marked only subject of proof. That

proof was never adduced by the plaintiff. If that be so, reliance by the lower appellate court on Ex. A-1 was most most improper and illegal.

Apart from this, even though the date of Ex. A-1 is 30 years prior to the institution of the suit, being only a registration copy, presumption u/s

90 of the Evidence Act cannot be applied. In the decision in the case of AIR 1935 132 (Privy Council) , the learned Judge held thus:

Section 90, Evidence Act, clearly requires the production to the court of the particular document in regard to which the Court may make the

statutory presumption. If the document produced is a copy, admitted u/s 65, as secondary evidence, and it is produced from proper custody and is

over thirty years old, then the signatures authenticat ing the copy may be presumed to be genuine, but ''it is not sufficient to justify the presumption

of due execution of the original u/s 90....

In the decision in the case of Sital Das Vs. Sant Ram and Others, , it was held thus,

The language of Section 90 requires the production of the particular document in regard to which the court is invited to make the statutory

presumption. If the document produced is a copy, admissible as secondary evidence u/s 65 and is produced from proper custody and is over 30

years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the

presumption of the due execution of the original.

In the case of Shiv Lal and Ors. v. Chet Ram and Ors.; (1970) 2 S.C.W.R. 585, their Lordships have declared the law thus:

Prima facie the suit is barred by time but it is said that in view of the acknowledgment made by mortgagors under the original of Ex. P-5 dated

22.6.1906, the suit is within time. There is no satisfactory material to show that Ex. P-5 relates to the mortgage in question. It is not necessary to

go into that question in detail as it was impermissible for the Courts below to rely on Ex. P-5 for the purpose of acknowledgment. Ex. P-5 is a

certified copy of a statement said to have been made in a mutation proceeding. Its original has not been produced. No witness has been examined

to speak to the fact that the persons who are shown to have signed the original have in fact signed the same or those persons were the mortgagors

or their rep-resentatives. The signature oh the original cannot be proved by production of a certified Copy. Nor can the courts raise any

presumption u/s 90 of the Evidence Act in that regard. See Harihar Prasad Singh and Anr. v. Must of Munshi Nath Prasad and Ors.. The High

Court and the 1st appellate court erroneously though that they could presume that the persons mentioned as the executants in the copy have signed

the original, on the strength of Section 44 of the Punjab Land Revenue Act and Section 114(e) of the Evidence Act. Section 44 of the Punjab

Land Revenue Act deals with the presumption as regards an entry in the record of rights. This is not a case of an entry in the record of rights. It is

the genuineness of the signature in the original of Ex. P-5 and the identification of the person who signed it, that is important. Hence that section

affords no aid. Section 114(e) of the Evidence Act says that court may presume that judicial and official acts have been regularly, per-formed.

Herein there is no such thing as the regularity of the performance of any Official Act. The identification of an executant or genuineness of a signature

in a statement filed before an official has nothing to do with the regularity of his act unless it is shown that he had a duty to identify the person who

singed it and further to take the signature in his presence. Therefore, Ex. P-5, cannot serve as an acknowledgment of the mortgage. Therefore, Ex.

P-5 cannot serve as an acknowledgment of the mortgage. Hence, the plaintiff''s claim to redeem the mortgage in respect of item No. 2 of the plaint

must fail.

In view of these decisions, it cannot be doubted that in the present case, presumption u/s 90 of the Evidence Act will not apply. The plaintiff also

did not give any evidence to prove Ex. A-l. No secondary evidence is also adduced to prove the contents of Ex. A-1.

Under the above circumstances, reliance placed by the lower appellate court that the sale deed in so far as Survey No. 411 is concerned, has

not come into effect and the finding that the will was executed by deceased Kaliappa Gounder is based on no evidence.

The trial court rightly dismissed the suit holding that the plaintiff will not have any right and Kaliappa Gounder was not having any right over the

plaint schedule properties. It also rightly held that the Will is not proved. The lower appellate court did not approach the question in its proper

perspective. It decided the case without any material and it has based its conclusion on presumptions and assumptions.

In this connection, it may be noted that both the courts have come to the conclusion that the documents alleged by the appellants are true. If

that be so, without setting aside those documents, the plaintiff will not be entitled to any right. She cannot ignore those documents as void.

In the result, the Judgment of the lower appellate court, decreeing the suit in O.S. No. 996 of 1985, is set aside and the order of the trial court

is restored. O.S. No. 996 of 1985 is dismissed. The second appeal is allowed with costs. Consequently, C.M.P. No 14948 of 1995 is closed.