N. Selvaradjalou Chetty Trust vs Sarvothaman and Others

S.R. Singharavelu, J.—Plaintiff filed the suit for a declaration that the sale deed executed by the 2nd defendant as power agent of 1st

defendant in favour of defendants 3 to 6 are void in law, permanent injunction and for vacant possession of the suit property.

The averments made in the plaint are as follows:

The 7th defendant is a proforma party.

Mrs. Padmini Chandrasekaran purchased the suit property by a registered sale deed dated 26.09.1963 executed by the Advocate Commissioner

in pursuance of a court auction sale. The purchaser was in sole, uninterrupted and exclusive possession till her demise on 07.06.1980; she left

behind her a Will dated 30.09.1975, under which she appointed Sri Sri R. Krishnamoorthy, Advocate and Dr. H.B.N. Shetty, I,A.S., as

Executors for administering the estate in accordance with the terms set out in the Will. The testator vested the property in the plaintiff Trust and

also mentioned in the Will about the names of trustees. The Will was sought to be probated in 0.P. No. 117 of 1981, which was converted as

T.O.S. No. 28 of 1982 and on 28.10.1995 this Court granted probate in favour of the Executor. The suit property and other properties vested

with the plaintiff Trust are continued in plaintiff''s possession.

Plaintiff came to know that the 1st defendant though a party to the above mentioned sale deed dated 26.09.1963, claimed rights under the Will

of Somasundaram Chettiar and attempted to deal with the property. The suit property was sold by the 1st defendant through his Power of

Attorney, the 2nd defendant to defendants 3 to 6. Such vendor had no right to sell. Therefore, defendants 3 to 6 may not have any right, but they

are attempting to alienate the property. The 1st defendant while making the sale in favour of defendants 3 to 6 had suppressed the proceedings of

auction and the earlier sale deed dated 26.09.1963, wherein 1st defendant Sarvothaman and others were parties. The plaintiff Trust alone is the

absolute owner of the property. So, the suit is to be decreed for declaration that the sale deeds dated 26.02.1992 executed by 2nd defendant as

power agent of 1st defendant in favour of defendants 3 to 6 relating to suit property are void and cannot confer any right upon defendants 3 to 6

and for possession from defendants 1 to 6 and for permanent injunction restraining the defendants from dealing with the property and also from

putting up any construction thereon.

Defendants 1 and 2 remained set ex parte.

Defendants 3 to 6 filed a written statement, in which the following averments were made:

The suit property originally belonged to Somasundaram Chettiar by right of purchase under a registered sale deed bearing document No. 323 of

1929. He was in enjoyment of the property during his lifetime and had executed a Will dated 30.05.1962 bequeathing the suit property in favour of

the 1st defendant. The said Somasundaram Chettiar died on 14.06.1962 and his last Will dated 30.05.1962 came into operation after being

probated before this Court in 0.P. No. 131 of 1992. The 1st defendant took possession and was in enjoyment of the same. Defendants 3 to 6 are

bona fide purchasers of value without notice of alleged encumbrance over the suit properties. The sale deed in their favour is dated 24.02.1992.

The defendants became in possession and continued to enjoy the same from the date of their purchase. Prior to the purchase, the 1st defendant

was in possession and enjoyment of the property. The allegation that Mrs. Padmini Chandrasekaran became the owner of property by virtue of a

sale deed dated 26.09.1963 executed by the Advocate Commissioner is incorrect. The said sale will not convey any right. That sale deed was in

pursuance of a sale conducted for recovery of amount under a money decree in favour of Mrs. Padmini Chandrasekaran in C.S. 329 of 1952

against the estate of late Dakshinamurthy Chettiar and Krishnarajulu Chettiar. in the hands of Somasundaram Chettiar, Kuppiah Ammal, Anusuya

and Ramanathan Chettiar. The suit property never belonged to said Dakshinamurthy or Krishnarajulu and was never a part of their estate. On the

other hand, the property belonged to Somasundaram Chattiar as he had purchased it under a registered sale deed bearing document No. 323 of

1929 and he was in absolute enjoyment thereof. The court auction sale may not have any warranty of title and thus, there is an inherent defect in

title claimed by Mrs. Padmini Chandrasekaran. The suit property was not vested with the plaintiff Trust. Neither the 1st defendant nor

Somasundaram Chettiar was ever a party to the sale deed dated 26.09.1963. In fact, Somasundaram Chettiar died as early as on 14.06.1962.

Somasundaram, to whom the suit property belonged, executed a Will on 30.05.1962 and the same was probated in 0.P.131 of 1992 and

according to the terms of which, the 1st defendant became entitled to the same and had rightly sold it to defendants 3 to 6, who came into

possession and continue to enjoy. The power of attorney in favour of ​ for execution of the above sale deed by 1st defendant is valid. Neither Mrs.

Padmini Chandrasekaran nor the plaintiff Trust was at any point of time in possession of suit property. There was assessment of urban land tax in

respect of suit property only in the name of defendants 3 to 6. They were in continuous, open and uninterrupted possession to the knowledge of

the entire world. The same is for more than statutory period and as such, defendants 3 to 6 and their predecessors-in-title have prescribed title to

the suit property and the suit is liable to be dismissed.

The Reply statement filed by plaintiff contained the following averments:

The plaintiff purchased the suit property to an extent of 0.77 cents out of an extent of 5.15 acres. Suit property could not have come into the hands

of 1st defendant since he himself was a signatory to the above said sale deed in favour of Mrs. Padmini Chandrasekaran. Jayammal, wife of late

Somasundaram Chettiar, Ramanathan Chettiar, Sarvothaman were all parties to the said sale deed as they were represented by T.T. Srinivasan,

Advocate. Defendants 3 to 6 are not bona fide purchasers without notice. Their encumbrance certificate would indicate the earlier sale in favour of

Mrs. Padmini Chandrasekaran, the founder of the plaintiff trust. The transfer of patta in favour of defendants 3 to 6 is fraudulent and was later

cancelled. To say that the earlier encumbrance certificate did not mention the sale in favour of Padmini Chandrasekaran is also false. Apart from

putting up compound wall, defendants 3 to 6 could not secure possession of suit property. It is borne out on record that all the legal heirs and the

executor of Will of late Somasundaram have executed the sale deed in favour of Mrs.Padmini Chandrasekaran, who in turn bequeathed the

property to the plaintiff Trust. To say that, defendants 3 to 6 acquired adverse title is false, 1st defendant was also not in possession.

The following issues are framed for consideration.

(1) Whether Padmini Chandrasekaran has got title to the suit property ?

(2) Whether the 1st defendant had inherited the property in accordance with law ?

(3) Whether the 1st defendant''s forefather has got any title to the suit property ?

(4) Whether the Trust is entitled to the property in order to have the relief asked for ?

(5) Whether the plaintiff is entitled to the relief prayed for ?

The earlier history of the case is relevant in understanding the facts before us. Such history can be gathered from (i) the judgment dated

11.12.1963 in O.S.A.49 of 1960 and 40 of 1969 (Ex.P-6) respectively preferred by Padmini Chandrasekaran and Somasundaram, who are

espectively plaintiff and one of the defendants in C.S. No. 329 of 1952; and (ii) from the judgment dated 20.03.2002 of a Division Bench of this

Court in O.S.A. No. 299 of 1995 (Ex.P-13) which arose against the decree passed in C.S. No. 149 of 1980 and T.O.S. No. 28 of 1982 filed by

one Vinod Babu claiming under Sarvothaman and Sathya, his parents, to set aside a compromise decree dated 20.04.1970 arrived at in O.S. No.

6 of 1968. That suit was filed by one Anusuya claiming partition (it was a parallel proceeding to C.S. No. 329 of 1952).

The end result of the judgment dated 20.03.2002 in O.S.A. No. 299 of 1996 (Ex.P-13) was to the effect that Padmini was entitled to ''A''

schedule and Somasundaram was entitled to ''B'' schedule (excluding the property of Selvarajalou) as found in the compromise decree dated

20.04.1970 in O.S.No,6 of 1968. That compromise decree was upheld and Padmini Chandrasekaran is Will was also probated. The O.S.A. No.

299 of 1996 confirmed the finding of O.S. No. 149 of 1980 in dismissing the claim of Vinod Babu.

It is in the above said proceedings the genealogy of the family and other dates and events connected to this family were at length discussed and

the following are some of such factors.

Chinnathambi

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Rathinavel Nandagopal Vijayaraghavam Dakshinamurthy

| (died issueless) died in 1951 x

| Kuppammal died

Durairaj in 1958

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Kasthurithilagam Selvarajalou Krishnarajulu Jayalakshmi

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Padmini x Anusuya x

(wife) Somasundram (Husband)

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Anusuya 2nd daughter (Ramanathan)

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Sarvothaman

(D 1)

One Chinnathambi had four sons, namely, Rathnavelu, Nandagopal, Vijayarangam and Dakshinamoorthy. Rathnavelu''s son was Durairaj.

Nandagopal had two sons and two daughters, viz., Selvarajalou, Krishnarajulu and Jayalakshmi and Kasthuri Thilagam. Selvarajalou''s daughter is

Padmini Chandrasekaran, Jayalakshmi''s husband is Somasundaram. Dakshinamoorthy'' s widow is Kuppammal and he died in 1951. His three

brothers predeceased him. Dakshinamoorthy and Krishnarajulu died issuless. Kuppammal died in 1958 executing a Will dated 16.08.1956. In the

said Will, Somasundaram was the legatee. His daughter and adopted son are respectively Anusuya and Sarvothaman, the lst defendant.

Ramanathan, who married the second daughter of Somasundaram, was the natural father of Sarvothaman.

Selvarajalou at the time of his death was a member of a Hindu joint family consisting of himself, his younger brother Krishnarajulu and paternal

uncle Dakshinamoorthy Chetty. Rathnavelu died in the year 1907. Two years later, his three brothers and his son Durairaj started a business under

the name of Rathnavelu Brotthers, as exporters, ship- chandlers, stevedores etc. Later, Sam Joseph, a native of Ceylon, was taken in employment

as the Accountant of the firm. Due to the First World War, the business sustained heavy loss and was stopped in the year 1915. Sam Joseph was

terminated and he also went back to Colombo.

Vijayarangan embarked upon a separate business, which venture was a failure. There was a family arrangement in 1918. Parties contemplated

to live as Hindu Undivided Family. Durairaj was a Dubash of Ralli Brothers till the date of his death in the year 1925. Dakshinamoorthy was struck

with paralysis in the year 1914 and till the end, he was crippled, which however did not prevent him from doing business. However, Selvarajalou

was accomplished by all the members of the family in the matter of dealing with business people. He was proficient in French and English. Four

years after his father''s death, he started a business in his own name, first at Pondicherry and later at other places. Sam Joseph, the tried and

trusted accountant of the family joined that business as Manager in the Madras Office in the year 1929. The business was prosperous.

Krishnarajulu had no business and he died in the year 1943. In the year 1918, Selvarajalou''s sister Jayalakshmi was married to Somaasundaram,

who started his business in the name of his wife at Madras. It did not prosper and was closed in 1944. Kuppammal, the wife of Dakshinamoorthy

was his cousin. Anusuya, the daughter of Somasundaram was given in marriage to her maternal uncle Krishnarajulu. Somasundaram''s second

daughter was married to Ramanathan, a near relative of Kuppammal. Therefore, the position of Somasundaram and his family was secured.

Selvarajalou was undoubtedly in exclusive control of the various branches of his office. He had insured his life for the sum of Rs. one lakh in

various insurance companies. Selvarajalou was prominent in political activities at Pondicherry and unfortunately he was shot dead in the year 1938.

After the death of Selvarajalou, Dakshinamoorthy and Krishnarajulu took over the business claiming that they had succeeded to the business

carried on by the deceased according to Hindu Law by survivorship.

There were amounts due to Selvarajalou from the Imperial Bank of India as well as from the Indochina Bank at Pondicherry. There were other

amounts due to the deceased from the post office, public and private institutions. Dakshinamoorthy was able to obtain a succession certificate on

21.12.1938 within five days of the death of Selvarajalou from the French authorities. The existence of the minor daughter Padmini was suppressed

in the application for the Succession Certificate. This omission was deliberate. At that time, Dakshinamoorthy had considerable affection for

Padmini, who was about 11 years old by then, and was taken custody of himself and his wife Kuppammal. Five years after, Padmini reached the

age of majority, Dakshinamoorthy converted the business as a partnership concern. Out of 100 shares therein, he took himself 51 shares,

Somasundaram, Padmini and Ramanathan were respectively given 21, 20 and 4 shares and one Ramachandran was given the remaining 4 shares.

The Partnership Agreement is dated 27.10.1948. By a further document dated 26.03.1951, it was agreed that the partnership was not to be

dissolved by the death of any partner. Dakshinamoorthy died on 26.06.1951. Even before the dead body of Dakshminamoorthy was removed,

disputes started between Padmini on one hand and Somasundaram and Kuppammal on other hand. Mediations took place. Somasundaram

agreed to treat Padmini, the plaintiff as owner provided he was permitted to perform the funeral ceremonies. Padmini was permitted to carry on the

business of her father, which was still then carried on by Dakshinamoorthy, as sole proprietrix. Somasundaram grave some trouble. Mr. Salzani,

the Agent in India of Messagerie Maritimes, took interest in her and helped her. Somasundaram tried to discredit Salzani by complaining against

him. In December 1951, some arrangement was entered into between Padmini in one hand and Somasundaram and Kuppammal on other hand.

Sam Joseph, the loyal servant of Selvarajalou was also not satisfied with the way in which Padmini was treated by Somasundaram. During the

months of July and August 1951, he conveyed information to Padmini about two matters; (i) that the business done in the name of her father was

during his lifetime his own and that she would be entitled to do the same as his legal heir and (ii) that her father had insured his life for a

considerable sum of money and that she would be entitled to recover those moneys which had been collected by Dakshinamoorthy and

Krishnarajulu. He also induced Padmini to insist upon her rights as the sole proprietrix of Selvarajalou Chetty and Company. Due to

Somasundaram''s intervention, Sam Joseph got separated from Padmini. Then, Padmini filed the suit in 1952 in C.S. No. 329 of 1952. The prayer

in that suit was that Padmini was the absolute owner of the business of her father Selvarajalou Chetty and other reliefs. There was a decree in the

said suit, in which Padmini obtained a declaration that the business carried on in the name of her father Selvarajalou, the jewellery, which was the

subject matter of the suit and the amounts in certain insurance policies belonged to her absolutely and that Dakshinamoorthy or his widow

Kuppammal as also her step brother Sarvothaman had no rights in those assets. The decree was challenged in the aforesaid appeal unsuccessfully.

There was an appeal preferred by both Padmini, the plaintiff as well as Somasundaram, one of the defendants respectively in O.S.A. No. 49

of 1960 and 60 of 1959. There was a judgment passed on 11.12.1963 in both O.S.As., confirming the decree with some modification.

Parallel to this litigation, a suit was instituted by Anusuya, daughter of somasundaram in 1968 when she filed O.S. No. 6 of 1968 in the District

Court in. Pondicherry, seeking partition of what she alleged to be family properties. In that suit, her father and Padmini were parties besides

Anusuya''s mother Jayalakshmi and the younger brother of Padmini''s father and also one Ramanathan, who was the natural father of Sarvothaman.

That suit ended in a compromise on 29.04.1970. Sarvothaman and other defendants as also the plaintiff Anusuya entered into an Agreement for

compromise, which in fact is, in essence, a division between Padmini and Somasunclaram. Excluding those properties in ''B'' schedule, which stood

in the name of Selvarajaloa, the other ''B'' schedule properties were allotted to Somasundaram while ''A'' schedule property in the compromise

was allotted to Padmini.

This compromise decree was sought to be set aside in C.S. No. 149 of 1980 filed by one Vinod Babu. That went against Vinod Babu, who

filed an appeal in O.S.A. No. 299 of 1996, wherein judgment dated 20.03.2002 was pronounced by the Division Bench holding that the

compromise decree is enforceable.

Thus, as per the result of the judgment dated 11.12.1963 in O.S.A.49 of 1960 and 60 of 1959, the decree passed in favour of C.S. No. 329

of 1952 regarding her absolute right in her father''s business, jewellery and insurance policies of her father was upheld. Even in O.S. No. 6 of

1968, there was a compromise decree, which in fact on one hand Padmini was given ''A'' schedule property mentioned therein; and

Somasundaram, on other hand, was given ''B'' schedule property excepting that items found in the name of Selvarajalou.

Wow it is in between these events, there was an application filed in C.M.P. No. 4210 of 1962, which was a sale of the properties, in which

there was a sale notice, wherein the purpose of the sale was mentioned as follows in para 7.

The properties are being offered for sale in pursuance of the order of the Hon''ble the High Court on C.M.P. No. 4210 of 1962 in O.S.A. No. 60

of 1959 dated the 4thday of May 1962 with a view to satisfy the claim under the Security Bond dated the 24thday of August 1960 in CS. No.

329 of 1952, High Court, Madras and the claim under the 2nd mortgage dated the 1stday of Oct., 1960 in favour of Mrs. Jameela Begum.

Thus, while Somasundaram Chettiar was very much alive, there was an order passed by this Court on 04.05.1962 in C.M.P. No. 4210 of

1962 in O.S.A. No. 60 of 1959, which was preferred by Somasundaram Chettiar against the decree in CS. No. 329 of 1952; in such

C.M.P.4210 of 1962, this Court appointed an Advocate Commissioner Sri S.S. Ramachandra Iyer to bring the properties offered as security to

sale by public auction. That was done because the estate of Somasundaram Chettiar including suit property in question were shown in the security

bond that was furnished to this Court earlier. Permission was also obtained from M/s. Jameela Begum, the second mortgagee therein and that she

has released the suit property in favour of the Advocate Commissioner. A sum of Rs. 17,000/-was paid as charges to the security bond and

eventually the suit property was brought to auction in which it was purchased by Padmini Chandrasekaran and the sale was confirmed by this

Court by an order dated 06.03.1963 and a registered sale deed was also executed in favour of Padmini Chandrasekaran on 25,09.1963. It is in

the meantime, Somasundaram Chettiar died on 14.06.1962 with a Will executed by him on 30.05.1962.

According to the said Will of Somasundaram, one Mr. T.T. Srinivasan was appointed as Executor,

(1) to pay all the debts of Somasundaram Chettiar and to defray the medical and testamentary expenses; the executor was also given power to sell

any of the property of the testator for discharging the debts and meeting the above expenses;

(2) to pay the probate duty of the Will dated 16.08.1956 of Kuppammal, wherein the testator was a legatee/executor; after the death of the

testator, the executor in the Will of Somasundaram was directed to administer the estate of Kuppammal, upon payment of probate duty of the said

Will;

(3) the executor Mr. T.T. Srinivasan was also directed to settle the debts of testator due to A.Manoharan, son of Appiah Chetty and Velayudha

Pathar;

(4) the executor was also directed to discharge the debt of testator of Rs. 60,000/- due to Ramanathan which was borrowed to pay of the decree

debt due to Padmini Chandrasekaran by testator in C.S. No. 329 of 1952;

(5) that the said Ramanathan was also therefore bequeathed a sum of Rs. 65,000/- on condition that he repays entire debt and free his properties;

and

(6) as the testator was the Managing Partner in M/s. N.Selvarajalou Chetty and Company and under the partnership deed as he was entitled to

21% of the share and also entitled to Kuppammal''s share with capital contribution of Rs. 25,000/-, it was mentioned in the Will that 1/10thshare

will go to testator''s cousin brother Munusamy Chetty and that the rest will be taken by Sarvothaman, the adopted son of Somasundaram subject

to the latter''s payment of Rs. 500/- per month to Jayalakshmi, the widow and Anusuya, the daughter of the testator.

Thus, under the Will, Somasundaram had directed the executor to clear the debt of Ramanathan and to administer the estate of Kuppammal

and also directed Sarvothaman to pay certain sums to Jayalakshmi and Anusuya upon enjoying the shares due to the testator as Managing Partner

in M/s. N. Selvarajalou Chetty and Company. Thus, according to Somasundaram''s Will, the executor T.T. Srinivasan was obliged to pay all the

debts of Somasundaram Chettiar and to discharge the same even by selling any of his property in order to meet the said expenses towards

repayment of debt, testamentary and medical expenses. That debt included borrowals of Somasundaram from A. Mahendran, son of Appiah

Chetty and also Velayudha Pathar.

Mention was also made in the Will of Somasundaram that there was a borrowal made by him from Ramanathan to an extent of 60,000/- and

so, Ramanathan was bequeathed to a sum of Rs. 65,000/- on condition that he shall repay the debt and free the liabilities upon the property of

testator Somasundaram. He was also directed to discharge the decree debt of Padmini Chandrasekaranin C.S. No. 329 of 1952. As the above

said Will was not in dispute, it is an admitted portion found in the Will that there shall be a discharge of the decree debt obtained by Padmini

Chandrasekaran against Somasundaram in C.S. No. 329 of 1952. As seen earlier, there was a decree in C.S. No. 329 of 1952 that Padmini

Chandrasekaran''s dues from Somasundaram Chettiar have to be discharged with a charge on the estate of Kuppammal and Dakshinamoorthy in

the hands of Somasundaram Chettiar. It is under such circumstances, as mentioned supra, the property was brought to auction, in which Padmini

Chandrasekaran purchased.

Mrs. Padmini Chandrasekaran, who had become the absolute owner in pursuance of the court auction sale in respect of suit property, was

said to be in possession of the said property till her demise on 07.06.1980. In the meantime, she had founded a Trust in the name of

M/s.N.Selvarajalou Chetty Trust and appointed herself to be the Managing Trustee and after her life time, Dr. H.B.N. Shetty, I.A.S., Mr. N.C.

Ragavachari, Mr. R. Krishnamoorthy, Senior Counsel and Mr. N. Ramachandran as Trustees. Padmini executed a Will dated 30.09.1975,

appointing Mr. H.B.N. Shetty and Mr. R. Krishnamurthy as Executors. Subsequently, Mr. R. Krishnamoorthy, Senior Counsel resigned and Mr.

Ramachandran died.

In the meantime, the 1st defendant even though being a party to the sale deed dated 25.09.1963, had illegally sold the property by way of four

sale deeds to defendants 3 to 6, which are under dispute. On the strength of the above said illegal sale deeds, defendants 3 to 6 encroached upon

the property and constructed a compound wall around the suit property. The said sale deeds were shown to have been executed by 1st defendant

through his power agent 2nd defendant. 1st defendant still remains ex parte. The signature of 1st defendant in the power of attorney has been sent

for Forensic Science Laboratory, Madras, on certain allegations and suspicion about its correctness.

It is under such circumstances, the ex parte order already passed against defendants 3 to 6 was set aside. These defendants agitated that the

suit property never belonged to Dakshinamoorthy Chettiar or Krishnarajulu ""Chettiar, who were parties in C.S. No. 329 of 1952; and that

property was not part of the estate of the above in the hands of Somasundaram, Kuppammal, Anusuya and Ramanathan Chettiar, the defendants

in that suit. The further contention is that the suit property could not have been brought for sale and could not have transferred title in favour of

Padmini Chandrasekaran by the Advocate Commissioner, who, according to defendants 3 to 6, had no authority to represent Somasundaram

Chettiar in making a sale deed. Defendants 3 to 6 also claimed adverse possession.

Now, the question arises as to whether as on the date of death of Somasundaram Chettiar on 14.06.1962 and before ever the confirmation of

sale in favour of Padmini Chandrasekaran, whether the mere order of court auction sale in favour of the latter would transfer title or not. In other

words, subsequent to the death of Somasundaram Chettiar on 14.06.1962, whether the legatee Sarvothaman, the first defendant would get an

overwhelming right in suit properties to dispose of the same through the impugned sale deeds in favour of defendants 3 to 6.

In this connection, in a case law Jagannatha Rao v. Surya Rao reported in AIR 1936 PC 206. the following was observed:

It is obvious that, after the expiry of the statutory period for setting aside the sale, there was no person who could question the title of the auction-

purchaser, and a certificate of sale granted by the Court would in such a case be a. formal document of title. In the absence of an order setting

aside the sale the Court is bound to confirm it, and the law does not prescribe any special period for an application for an order of confirmation

This was followed in a later case S. Ramaswami Iyer Vs. Komalavalli Ammal, and the following observation was made.

After the expiry of the period for an application to set aside an auction sale, the auction-purchaser can effectively sell the property purchased even

in the absence of a confirmation of the auction sale by the Court and therefore the judgment debtor cannot be said to have a saleable interest in the

same property in the absence of a question of subordinate interests carved out of the property being owned by different persons.

The case law Janak Raj Vs. Gurdial Singh and Another, also dealt with the above situation, by quoting the following case laws,

(1) S. Chokalingam Asari Vs. N.S. Krishna Iyer and Others,

(2) Lalji Sah and Others Vs. Sat Narain Bhagat and Others,

(3) Mani Lal Vs. Ganga Prasad and Another,

(4)Adbul Rahim v. Abdul Haq. AIR 1936 LAH 191

(5) Baburam Lal and Another Vs. Debdas Lala,

(6) Ariatullah v. Seshi Bhusan AIR 1920 CAL.99 and observed as follows:

...It must be held that the appellant-auction ; purchaser was entitled to a confirmation of the sale, notwithstanding the fact that after the holding of

the sale the decree had been set aside. The policy of the Legislature seems to be that, unless a stranger auction ''purchaser is protected against the

vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the

borrower and the creditor alike, if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. The CPC

of 1908 makes ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed

against him.

The decision Pradyut Natwarlal Shah Vs. Suryakant N. Sangani and Others, referring the above case in Janak Raj Vs. Gurdial Singh and

Another, and subsequent case law of Ramesh Himmatlal Shah Vs. Harsukh Jadhavji Joshi, made the following observation:

Section 65 of the CPC provides as follows:

Where immovable property is sold in execution of a decree and such sale has become absolute, the property shall be deemed to have vested in the

purchaser from the time when the property is sold and not from the time when the sale becomes absolute

In Janak Raj Vs. Gurdial Singh and Another, the Supreme Court had to consider the case of an auction purchaser in execution of a decree, which

decree subsequent to the auction has been reversed in appeal. In that case a house was sold in execution of an ex parte money decree. Thereafter

in appeal the said decree was reversed. After reversal of the decree the auction purchaser made an application for confirmation of the sale.

Reversing the decision of the Punjab High Court their Lordships of the Supreme Court held that notwithstanding the reversal of the decree, the

auction sale must be confirmed and that the title of the auction purchaser related back to the date of the sale and not to the date of its

confirmation...the decision of a Full Bench of the Lahore High Court in Sham Singh v. Vir Bhan AIR 1942 Lah 102 was that though a sale became

absolute only when an order confirming the sale was passed, by reason of the provisions of Section 65 of the Civil P.C. the property was deemed

to have vested in the purchaser, from the time when it was sold, and not from the time when the sale became absolute, and that in the interval

between the date of the sale and its confirmation the auction purchaser acquired substantial interest in the property. The Full Bench further held that

the right of the auction purchaser could not be defeated by a transfer made by the judgment debtor between the date of the sale and the

confirmation of the sale.

It was further held in that case that the fact that between the date of attachment and the date of confirmation of the sale, a Court had declared

the attachment void or ordered it, to be raised and it was thereafter that the private alienation was made, makes no difference if the attachment was

subsequently restored by a superior court. For this position, reliance was made in Annapurna Patrani and Others Vs. Lakshmana Kara and

Another, . where a Division Bench of the Madras High Court held that, where in execution of a decree property was attached but the petition for

execution was dismissed for default and on appeal the order of dismissal for default was set aside the effect of the appellate order was to restore

the order attaching property and the trial Court would have to proceed with the execution application from the stage at which it had interrupted it

by dismissing it for default. The Division Bench further held that the appellate order restoring attachment would relate back to the date when the

attachment was first levied and would render invalid any alienation in the interim period. The Division Bench referred to an old decision of the

Calcutta High Court in Patringa Koer v. Madhabanand Ram (1911) 14 CLJ 476 where it was held that there would be a revival of the attachment

automatically so far as the decree holder and the judgment debtor were concerned, but allowing the appeal would not have the effect of reviving

the attachment as against a third party. Dissenting from this view taken in (1911) 14 CLJ 476, the Madras High Court pointed out that it was not

possible to understand how an attachment could be revived against the judgment-debtor only.The Division Bench observed at p.742 of AIR:

If there is an attachment, then it must apply to everybody, for the very purpose of an attachment order is to prevent alienations by the judgment

debtors in favour of any person, whether he has knowledge of the attachment or not.

From the above discussion, it is made clear that the confirmation date bade to the order of sale.

Although in this case, confirmation of sale was made on 06.03.1963, it dates back to the sale order dated 04.05.1962 and therefore, any

subsequent sale made by Sarvothaman after the death of Somasundaram Chettiar under the guise that Sarvothaman became a legatee under the

Will, may not clothe the transferee (defendants 3 to 6) any valid title. Since the confirmation of the sale dated 06.03.1963, may date back to

04.05.1962, the actual order of sale in favour of Padmini, 1st defendant himself may not have title in suit property. This is so because, before death

of Somasundaram on 14.06.1962, Will cannot take effect to attribute title to 1st defendant; and by abovementioned dating back principle,

Somasundaram was divested of suit property on 04.05.1962 even before his Will takes effect. Moreover, there is no application to set aside the

sale ordered on 04.05.1962 and the limitation period is 30 days ending on 03.06.1962 and by that time, Somasundaram was very much alive. To

say that 1st defendant was not even a party to the Court auction sale and so Order 21 Rule 81 C.P.C., may not be invoked in unacceptable

because, 1st defendant was a party to such sale deed, as he was also represented by S.S. Ramachandra Iyer, Advocate by Power of Attorney

dated and that as legatee under Will of Somasundaram Chettiar, his prospective chance of inheriting by such Testament, goes away since the

corpus is divested of testator himself before ever the Will gets effectuated.

It was further argued that the sale deed was not signed by Sarvothaman. True it is that the sale deed was signed by S.E Ramachandra Iyer,

Advocate himself for Jayalakshmi Animal @ Jayammal under P/A dated 25.07.1963 S.S.Ramachandra Iyer, Advocate and Commissioner for and

on behalf of (i) Sri T.T. Srinivasan (ii) S. Sarvothaman (iii) N. Ramanathan Chettiar under P/A dated 06.09.1963. u/s 114(e) of the Indian

Evidence Act, all acts of judicial and official have to be presumed as regularly performed. As described in the sale certificate issued by court of

law, 1st defendant was represented besides others by Advocate who was holding Deed Power of Attorney dated 25.07.1963. It is for the other

side to rebut it and prove it otherwise, which has not been done.

The next argument of the learned senior counsel for defendants 3 to 6 is that defendants 3 to 6 have acquired title to the suit property by their

long, uninterrupted, continuous possession. It has further submitted that defendants, in this connection, besides claiming title by purchase can also

claim adverse possession. It was argued that one can claim title for himself and alternatively the same can claim adverse possession; since his

claiming title by himself may not disentitle him to later on plead adverse possession. In this connection, reliance was placed upon N.S. Spance Vs.

D.S. Kanagarajan and T.A. Dhayavathi, . in which the following observation was made:

As submitted by the learned Counsel for the respondents, it is for the person, who claims adverse possession, to prove that his possession had

became adverse to the real owner, as held in Naran Behera (died) and Another Vs. Mohan Jethi and Others, and mere possession over a

statutory period is not sufficient to succeed in the plea of adverse possession, unless it is accompanied by adverse animus as held in

Venkatachalaiah v. Nanjundaiah AIR 1992 Kar.270. It is also held in the above decision AIR 1992 Kar.270 that the alternative plea of adverse

possession set up by the plaintiff cannot, therefore, be accepted, which does not mean that alternative plea is not permissible, since adverse animus

has not been established in that case. The above decision may not come to the aid of the defendant in this case, in view of the hostile possession

established, that too to the knowledge of the first defendant. The contention of the learned Counsel for the respondents, that the possession must

be without title against a person with original title and then only adverse possession would arise, is not acceptable, since a person, who is in

possession of the property, is entitled to take alternative plea, as pointed out supra.

Assuming that defendants 3 to 6 may as well claim adverse possession even after their unsuccessful claim over the sale deeds dated

26.02.1992, the possession should be tangible, clear and supported by unequivocal ownership regarding duration, continuity and extent. It was so

found at page 142 of Mr. M Krishnaswami''s Law of Adverse Possession 13th Edition and that is as follows;

It is the very essence of adverse possession that it must be marked by clear and unequivocal acts of ownership and must be sufficiently definite as

regards duration, continuity and extent. The presumption of adverse possession extends only to the property, which is in the actual occupation of

the trespasser.

So far as the tangible aspect of the property, it was mentioned in the same book at page 13 as follows:

The law recognises property only so far as it is capable of standing in relation to the human will. It may be classified as:

(i) physical or corporeal, or material, or tangible which is capable of being perceived by external organs of sense. This may consist of

(a) animal objects,...

(b) inanimate objects, which may be either movable or immovables.

(ii) Non-Physical, or incorporeal, or intangible, or artificial, which cannot be perceived by the senses, but is recognised as property in the eye of

the law; as the goodwill of a business, or patent rights, or rights of trademark, or right of redemption, and all rights except personal rights. The law

of adverse possession, in its widest scope, applies to all kinds of tangible property, whether movable or immovable.

There is no satisfactory evidence for the continuity and long duration for which possession should be in order to make out a case of adverse

possession. Further the land is only a vacant one and there was no perceivable act of enjoyment by claiming ownership thereon which is sine qua

non for claiming adverse possession. Therefore although defendants had a right to claim adverse possession, they have not established it. Their

vendor had no title as found hereinbefore and so sale deed in favour of defendants 3 to 6 are void.

Wow the question arises as to whether Plaintiff Trust has got any title to the property. In case it it has got a title, then it should have filed a

declaratory suit and it need not try to set aside the sale deeds in favour of defendants 3 to 6; according to the plaintiff, it is void ab initio inasmuch

as the vendor to these sale deeds have no title. As and when the plaintiff is to file a declaratory suit, then Article 142 of Limitation Act may apply.

Suppose plaintiff has no basis to file a suit for declaration of title, then according to Section 31 of Specific Relief Act, they can file this suit to set

aside the sale deed as those sale deeds sought to be set aside create mischief.

Section 31 of the Specific Act reads as follows:

Section. 31 When cancellation may be ordered""- (1) Any person against whom a written instrument is void or voidable, and who has reasonable

apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court

may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the Court shall send a copy of its decree to the

officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the

fact of its cancellation.

The Principle and Scope of the provision mentioned is as follows:

The relief given under this Section is founded upon the administration of protective justice for fear (quia timer). The principle is that such document

though not necessary to be set aside may, if left outstanding, be a source of potential mischief.

In this connection, on the side of the defendants, reliance was made in Muppudathi Pillai Vs. Krishnaswami Pillai and Others, , wherein it was

held in para 15 therein that the remedy u/s 39 is to remove a cloud upon the title, by removing a potential danger; but it does not envisage an

adjudication between competing titles.

Therefore, if the plaintiff is found not entitled to suit property; then, the suit filed herein may be construed as one filed under new Section 31 of

Specific Relief Act, in order to ward off the potential danger due to the existence of the sale deeds sought to be set aside. If that be so, the

limitation provision applicable is Article 91 of old Limitation Act, which corresponds to new Article 59, wherein it is provided that limitation is three

years from the time when the facts entitling the plantiff to have a decree cancelled or set aside or the contract rescinded first become known to him.

The plaint is so drafted that the cause of action arose upon various dates including on the date of probate of the Will of Padmini

Chandrasekaran, namely, 28.10.1995 and also thereafter, on such enquiries the plaintiff became known to the existing sale deeds in favour of

defendants 3 to 6 sought: to be now set aside. The suit was filed on 22.07.1998. but the probate proceedings upon the Will of Padmini

Chandrasekaran was finally disposed of on 28.10.1995 as so mentioned in para 17 of the plaint. Therefore, if the suit is construed as that filed u/s

31 of Specific Relief Act, it is well within the time.

Now, coming to the title of plaintiff Trust, learned senior counsel for defendants 3 to 6 pointed out para 10 of the Will of Padmini and it reads

as follows:

I Sequeath to Sri Vinayagamur, son of Natesan Chettiar, residing at No. 122, P.V. Koli street, Rouapuram, Madras, land in Survey No. 170/2,

o.75 cents out of 5 Acres 15 cemts/As he has got children, I want my Executor to sell the said property viz., 75 cents and deposit the sale

proceeds into a long term Fixed Deposit and to pay interest alone to Vinayagamurthy and after his life time, the Fixed Deposit, the Principel

amount shall be taken by his children in equal shares.

Para 19 of the will reads thus:

This will shall come into force after my life time. I appoint Thiru R.Krishnamurthy and Thiru H.B.N. Shetty as Executors to apply for probate to

pay any tax arrears, Estate Duty and to incur other expenses. The executors shall take charge of the movables as well as immovables and hand

them over to the trustees. The trustees have discretion to sell such movable properties as may not be necessary and add the sale proceeds to from

part of the Trust.

The attempt made by the learned Counsel for the plaintiff that the last sentence in para 19 is an omnibus clause to include all sale proceeds into

the Trust, so as to include even the sale proceeds of the suit property is incorrect. This is so because the Will has given clear terms in respect of the

disposition of the suit property as well as that of trust properties. The trust properties were separately identified in the Will unconnected with the

suit property. Therefore, para 19 of the Will only be construed as a disposition of the trust properties and what is contained in para 10 of the Will

is regarding the disposition of the suit property. Inasmuch as the suit property is not found in the list of properties endowed to the trust, the suit

property may not vest with the plaintiff trust.

In unambiguous terms, para 10 of the Will deals with the suit property, according to which, the executor is to sell the suit land, deposit the sale

proceeds into a long term fixed deposit and to pay interest alone to Vinayaganuirthy and after his lifetime, the principal amount would be taken by

the children in equal shares. As against such explicit terms of the last Will of the testatrix, the property cannot go to the plaintiff trust. So the plaintiff

has no title to the suit property.

Now, the position is thus:

(1) Suit property originally belonged to Somasundaram Chettiar;

(2) in a court auction sale, against debt due from Somasundaram Chettiar, Padmini Chandrasekaran had Purchasd it;

(3) even though the sale order was prior to the death and the sale confirmation was later to the death of Somasundaram, by principle of law,

confirmation dating back to sale order Somasundaram was divested of that property before his death;

(4) by virtue of divestment of Somasundaram of suit item, even during his lifetime, 1st defendant may not get any right under the Will of

Somasundaram (1st defendant also remained ex parte);

(5) thus, 1st defendant has no capacity to sell suit item to defendants 3 to 6;

(6) Title of Somasundaram in suit item had passed on to Padmini Chandrasekaran under the court auction sale (supra);

(7) Padmini had executed a will as well as a Trust dead; suit property was not vested with the trust;

(8) But Padmini, in her will, had directed the executore to sell the suit property make it as a fixed deposit tender the interest to Vinayagamurthy and

directed to give the principal amount to the children of Vinayagamurthy;

(9) The executor are thus obliged to act according to the above said direction of the testatrix in disposing the suit property by selling it, converting

the sale proceeds into fixed deposit and dispose the sale proceeds to the family of Vinayagamurthy as mentioned in the Will; and (10) among the

executors, Mr. H.B.N. Shetty is representing the plaintiff trust. He is also the executor burdened with disposition of the suit property. He is thus

executor-cum-trustee;

(11) Mr. H.B.N. Shetty filed the suit representing the trust only.

Now the question arises as to whether in a suit filed by H.B.N.Shetty on behalf of plaintiff trust, he, in different capacity, namely, as executor, if

found entitled to suit property by stepping into shoes of the testatrix, then can a decree be passed in his favour as an executor of the Will and not

as a trustee of the plaintiff trust, especially when the sale in favour of defendants 3 to 6 is liable to be set aside on the ground that their vendor, the

1st defendant had no title in suit property,

The subject is very clear that 1st defendant has no title in suit property so as to convey it to defendants 3 to 6 and that is why it was found

earlier that the sale in favour of defendants 3 to 6 is liable to be set aside.

Simply because H.B.N. Shetty,. who happened to be the trustee of the plaintiff trust., filing the suit, is it necessary for him to file another suit in

order to get a decree for setting aside the sale of defendants 3 to 6 of suit property and in order to oblige the terms of the Will of the testatrix who

was found as a real owner of the property. In my opinion, especially in the present facts and circumstances of the case, it is unnecessary to make

him to go in for another suit, after a lapse of 3 years. After all H.B.N. Shetty, the executor himself is very aged (more than 80 years). As some of

the executors passed away and some resigned and when H.B.N.Shetty himself is very old, it may not be desirable to make him or other Executor

to file another suit.

If the law permits, then the suit can be decreed in favour of H.B.N. Shetty in his defferent capacity as executor of the will of Padmini, the real

owner.

52 It, is not also as if defendants are facing an entirely new situation by way of treating Mr. H.B.N. Shetty claiming as executor instead of Trustee,

appointed by Mrs. Padmini Chandrasekaran. It is not only that rules or procedures are handmaid of Justice, but also it is to be noted that there is

no prejudice caused to defendants; and there is also no contravention of substantive provisions of statutory law. This is so because, the case about

derivation of title in suit property from Somasundaram to Padmini Chandrasekaran was fought by defendants tooth and nail. What happened

thereafter is Padmini executed a Deed of Trust and another Will. This fact is not disputed. What, is contained in para 10 and 19 of Will were

interpreted by the side of defendants 3 to 6 (the contesting defendants) empowering only the executor to deal with the suit property. as per

directions of testatrix. The disputed area is the title of testatrix. That disputed area was found keenly contested by defendants 3 to 6. So it cannot

be said that there was no participation of defendants 3 to 6 in arriving at the premises which are taken to mould the relief, as given hereunder. The

undisputed fact remains about testatrix executing Trust Deed and Will and among which disposition of suit item is found in the latter, obliging the

executors to implement it. This undisputed area only is the basis for construing that among the different capacities of. when suit filed in one capacity

and when he is found, entitled to deal with suit property in another capacity, and it is found that towards the latter capacity the remedy could be

moulded. So it is not as if defendants are deprived of any opportunity or that prejudice is caused to them nor is there any violation of principles of

natural justice, as both sides were given opportunity and heard on disputed area, whereby premises were drawn as above in order to mould the

relief in this suit items. Any empty ritual in the name of opportunity if required further will pave way only for endless multiplicity of proceedings.

In a similar circumstance, in Private Eye (P) Ltd. Vs. Hind High Vaccum Co. Pvt. Ltd., a suit was filed by Company for recovery of money;

plaint was signed by Director of Company; the suit was dismissed on the ground that he was not authorised to do so; the Court held that such

procedural defects not going to the root of matter should not be permitted to defeat a just cause. In this connection, in the above case, the

following observation made by the Supreme Court in United Bank of India v. Naresh Kumar and Ors. AIR 1997 3C 3 was relied upon:

In cases like the present where suits are instituted, or defended on behalf of a public corporation public interest should not be permitted to be

defeated on mere technicality. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause. There is

sufficient power in the Courts, under the Code of Civil Procedure, to ensure that injustice is not done to any party who has a just cause. As far as

possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable.

As mentioned supra, Mr H.B.N. Shetty sitting in the Arm of Testatrix undoubtedly had a substantial right to deal with suit property which can

be done only after setting aside the sale in favour of defendants 3 to 6, which was held supra as invalid one. This finding was arrived only after

keen contest between parties. Thus H.B.N. Shetty although filed the suit representing the Trust, when found holding capacity as executor of

testatrix to execute a sale deed in order to implement the other terms of the Will, shall have to be clothed with a decree setting aside the sale in

favour of defendants 3 to 6.

Further, as title follows possession in a case of vacant site, like the instant one (as there is lack of evidence regarding construction of compound

wall and the land is manifestly lying vacant), injunction has to be granted to Mr. H.B.N. Shetty in the capacity of executor.

Plaintiff Trust is not entitled to any decree. But the remedy is moulded for reasons mentioned supra, in passing a decree in favour of Mr.

H.B.N. Shetty in his capacity as executor of Will, for

(i) setting aside the sale deeds in favour of defendants 3 to 6 by the 1st defendant relating to the suit property (through the 2nd defendant as Power

Agent).

(ii) permanent injunction restraining the defendants 3 to 6 from in any manner dealing with the suit property and permanent injunction restraining the

defendants from putting up any construction over the suit property; and for

(III) a direction to the above executors of will to execute the terms found in para 10 of Ex. P-3 will of Mrs. Padmini Chandrasekaran (which was

already probated) and as found therein.

There will be no order as to costs.