Perumal Pillai and Others vs Kuppammal and Others

V. Ratnam, J.—Defendants 1 to 9 in O.S. No. 331 of 1975, Sub Court, Coimbatore, are the appellants in this second Appeal, That suit

was laid by the respondents herein praying for a declaration that they are the owners of the suit property and for directing the appellants to deliver

possession of the same and also for* recovery of to sum Rs. 1,000/- towards past profits and future profits at Rs. 350/-per annum.

The facts leading; to the institution of the suit are as under : According to the respondents, the suit property belonged to Marudachalam Pillai,

who obtained it under a registered Will executed by his wife Ponnammal in his favour on 12th July, 1947. In turn, Marudachalam Pillai executed a

registered will oh 28th January 1959 be questhing properties in favour of his two sons Nanjappa and Vedamuthu. The suit property described as

Kadai Veedu fell to the share of Nanjappa. On the death of Marudachalam Pillai in 1964, Nanjappa took possession of the property and was

managing the same till his death on 24th December 1972. The second appellant is the sister of Nanjappa and the first appellant is her husband and

the other appellants are their children. The first appellant took possession of the suit property as a tenant, but was irregular in the payment of rents.

Steps taken by the respondents to secure an order of eviction against the appellants were of no avail and the first appellant set up an oral gift of the

suit property in favour of his wife and she in turn purported to settle the suit property upon appellants 3 to 9 under a settlement deed dated 1st

April 1973. According to the respondents, appellants 1 and 2, by setting up an oral gift and also attempting to settle the properties in favour of

others, had cast a cloud on the title of the respondents to the suit property. It was on the aforesaid grounds that the respondents instituted the suit

praying for the reliefs set out earlier.

In the written statement filed by the first appellant adopted by others, while accepting that the suit property belonged to Marudachalam Pillai

under the terms of a registered will executed by his wife Ponnammal dated 20th July 1947, they disputed that the suit property had been

bequeathed in favour of Nanjappa. They also put forth a case that Marudachalam Pillai and Ponnammal orally gifted the suit property to the

second appellant as the value of the property was less than Rs. 100/- and that appellants 1 and 2 had been in possession and enjoyment of the

property for over 40 years and had also improved the same by incurring an expenditure of nearly Rs. 10,000/-. The second appellant claimed that

she had every right to settle the suit property and the settlement deed in favour of respondents 3 and 9 was executed in the exercise of her rights

over the suit property. The suit itself was characterised as one intended to harass the appellants. In an additional written statement filed by

appellants 1 and 2, they put forth a plea of acquisition of prescriptive title by reason of their possession and enjoyment of the suit property pursuant

to the oral gift made by the parents of the second appellant.

Before the trial court, on behalf of the respondents, Exhibits A-l to A-36 were marked and the second respondent was examined as P.W.I,

while, on behalf of the appellants, Exhibits B-1 to B-58 were filed in evidence and the first appellant gave evidence as D.W.I. On a consideration

of the oral as well as the documentary evidence, the learned III Additional Subordinate Judge, Coimbatore, found that the will dated 28th January

1959 was true and valid, that the oral gift in favour of the second appellant, though true, was not valid, that the second appellant had perfected title

by adverse possession and, therefore, the respondents were not entitled to the reliefs of declaration and recovery of possession. On those findings,

the suit was dismissed. Aggrieved by this, the respondents herein preferred A.S. No. 80 of 1979 to the District Court, Coimbatore. On a re-

consideration of the oral as well as the documentary evidence, the learned District Judge found that the oral gift of the suit property in favour of the

second appellant was not true, that the appellants had not perfected title to the suit property by adverse possession, that the respondents under the

terms of the Will dated 28th January 1959 executed by Marudachalam Pillai, have made out their title to a half share in the suit property and that

the respondents were entitled to recover possession of the entire property from the appellants as one of the co-owners on behalf of the other co-

owner as well. On those conclusions, the appeal was allowed and a decree was granted in favour of the respondents declaring that they and the

branch of Vedamuthu were the owners of the property and for recovery of possession of the suit property from the appellants and also for

recovery of a sum of Rs. 1,000/- towards past profits and Rs. 350/- per annum towards future profits till the date of delivery of possession. It is

the correctness of this that is questioned by the appellants in this second appeal.

In support of this second appeal, the learned Advocate General first contended that the respondents had rested their case and prayed for the

reliefs in the suit on the footing that under Schedule I to the Will of Marudachalam Pillai, the suit property was given to the share of his eldest son

Nanjappa and when that property was not so included in the first schedule, it was not open to the respondents to fall back upon the clause relating

to the residuary bequest under the Will 49 Marudachalam Pillai and claim relief. Reference in this connection was also made to paragraph 3 of the

plaint and the oral evidence in support thereof. On the other hand, the Learned Counsel for the respondents Mr. G. Subramaniam submitted that a

reading of the plaint as a whole would establish that the respondents laid their claim to the suit property on the strength of the Will of

Marudachalam Pillai and that part of the cause of action for the suit was the Will of Marudachalam Pillai andrespondents to sustain their claim to the suit property either under Schedule I to the Will or any other part of the Will. It was also further submitted

by the learned Councel relying upon the decision of the Supreme court in Nagubai Ammal and Others Vs. B. Shama Rao and Others, that the

appellants had understood and were fully aware of the case of the respondents which they had to meet and had also let in evidence not only in

support of their own case but in opposition to that of the respondents and they cannot be heard to complain of any prejudice whatever.

Before proceeding to consider the aforesaid contention, it would be necessary to briefly advert to the case of the appellants regarding the oral

gift of the suit property in favour of the second appellant herein. There are several circumstances which would negative the case of the second

appellant that there was an oral gift of the suit property in her favour. The second appellant would be the best person to speak to the oral gift, but

she has not been examined at all. The first appellant, who is none other than the husband of the second appellant, has participated in the execution

of the Will under Exhibit A-1 dated 20th July 1947 executed by Ponnammal in favour of. her husband Marudachalam Pillai and also of Exhibit A-

28 dated 28th January 1959 executed by Marudachalam Pillai in favour of Nanjappa, Vedamuthu and others. If there was an oral gift of the suit

property in favour of the second appellant even before the execution of Exhibit A-1, then, that property should have been excluded therefrom. The

first appellant is the scribe of Exhibit A-1 and one would have expected him to have reminded the testatrix that she had already parted with the suit

property and, therefore, that the property cannot be included in the Will. On the contrary, the four boundaries for the entire property without any

portion being excluded have been mentioned in the Exhibit A-1. This would belie the case of oral gift. The name of the second appellant was not

included in the patta in respect of the suit property. This would also establish that the oral gift is not true. The date of the oral gift or the month and

year when it took place have also not been made available. The first appellant examined as D.W. 1 stated that Marudachalam Pillai, Ponnammal,

himself and the second appellant alone were present when the oral gift was made and that he does not remember whether any one else was

present. This evidence of D.W.I regarding the oral gift was rightly characterised by the lower appellate Court as vague and not acceptable.

Besides, the recitals in Exhibit A-l would also establish that the oral gift is not true. Under Exhibit A-1, Ponnammal had stated that her four

daughters should each be paid a sum of not less than Rs. 3,000/- and if for some reason that amount is not paid, then an extent of 1 acre from out

of 4.32 acres in Survey No. 575 should be given to them to be enjoyed by them absolutely. When the testatrix under Exhibit A-l makes provision

for her four daughters, one should ordinarily expect her to take note of any provision already made by her with respect to one of the daughters,

namely, the second appellant herein. But the Will is silent on this aspect. There is also no evidence before Court to show that property was gifted

to the other daughters. Above all, a transaction of gift of immovable property u/s 123 of the Transfer of Property Act can be brought about only by

a registered instrument and the attempted explanation for resorting to an oral gift on account of the value of the property being less than Rs. 100/-

is unacceptable. Therefore, the lower appellate Court was quite right in its conclusion that the second appellant had not established the oral gift of

the suit property in her favour. The circumstance that possession of the suit property had remained with the appellants would not enable them to

claim title by reason of such possession. Even according to the evidence of D.W. 1, the suit property was given to appellants 1 and 2 to be

enjoyed by them so long as they were there. In other words, appellants 1 and 2 came into possession of the suit property having been permitted to

occupy the same and not in their own right. Appellants 1 and 2 are the son-in-law and daughter of Marudachalam Pillai and Ponnammal. There is

nothing unnatural in the son-in-law and the daughter having been asked to remain in possession of the suit property for their lifetime. But on that

account they cannot claim rights therein by adverse possession, especially as against Nanjappa, deceased brother of the second appellant, and his

children. The entry of appellants 1 and 2 into the suit property was permissive and the evidence does not disclose as to when such permissive entry

and possession were put an end to and hostile adverse possession with reference to the suit property commenced against deceased Nanjappa.

The lower appellate Court was therefore, quite right in concluding that the appellants have also not established their title to the suit property by

prescription.

To revert to the first contention urged, no doubt, it is seen that in paragraph 3 of the plaint it has been stated that the suit property is included in

an extent of 81 cents allotted to Nanjappa and that G.S. No. 575 where the suit property is situate has been sub-divided as G.S. No. 575/2.

However, in the written statement, the appellants have taken up the stand that the testator had no right at all to bequeath the property as the

property did not belong to him at the time of the Will and that the property had also not been included in the Will executed by Marudachalam Pillai.

Earlier, it has been found that the oral gift in favour of the second appellant has not been established. Under the Will Exhibit A-1 dated 20th July,

1947 executed by Ponnammal the entire 4.25 acres in Survey No. 575 had been bequeathed in favour of her husband Marudachalam Pillai. When

the suit property had not been gifted and the entirety of the area where the suit property is located had been willed away under Ex. Al by

Ponnammal in favour of her husband, Marudachalam Pillai became the owner of the property and was, therefore, competent to dispose of the

same in any manner he liked. Under Ex. A28 dated 28.1.1959, Marudachalam Pillai purported to bequeath his properties in favour of his two

sons, namely, Nanjappa and Vedamuthu and their sons. In so far as the properties bequeathed to Nanjappa are concerned, they have been

detailed in Schedule I to Ex. A28. It was on this basis that the respondents herein, who are the wife and children of Nanjappa, laid claims to the

suit property on the footing that it is also part of the first schedule bequeathed in favour of Nanjappa. The will of Marudachalam Pillai also contains

a clause to the following effect:

This clause provides for a general residuary legacy in favour of Nanjappa and his brother Vedamuthu. However, this clause is also part of the Will

under which bequests have been made in favour of Nanjappa and Vedamuthu. The basis upon which the respondents have claimed title to the suit

property is the will of Marudachalam Pillai including the residuary legacy referred to earlier. It may be that there is no specific reference to the

residuary legacy, but any claim made as a residuary legatee would also be one under the Will and cannot be dissociated from it. The cause of

auction is set out as the Will under. Exhibit A-28 and that would take in not only the bequests in favour of Nanjappa and Vedamuthu specifically

mentioned therein, but also the other provision, namely, general residuary legacy in favour of Nanjappa and Vedamuthu. It has also to be borne in

mind that the appellant were also fully aware of the case of the respondents based on the terms of the Will Exhibit A-28 and had participated in the

trial letting in evidence not only in support of their case but in opposition to the claim made by the respondents herein on the strength of the Will

Exhibit A-28. This is, therefore, not a case where the appellants can be said to have been taken by surprise resulting in some prejudice to them.

The appellants had a full and fair opportunity of meeting the case of the respondents on its merits inclusive of the claim based on general residuary

legacy forming part of the Will of Marudachalam under Ex. A28 dated 28.1.1959. Under those circumstances, there is no substance in the first

contention urged on behalf of the appellants.

The learned Advocate-General next contended that the operation of the clause relating to general residuary legacy has to be confined to items of

properties acquired by the testator subsequent to the date of execution of the will and before his death and not to the suit property, which was

available to the testator, even when the will under Ex. A28 dated 28.1.1959 was executed. It is difficult to accept the construction of the clause

relating to the general residuary legacy in the manner suggested by the learned Advocate-General. From the clause relating to general residuary

legacy already extracted, it is seen that it is applicable to the indisposed of properties of the testator irrespective of whether such properties were

available on the date of the execution of the Will and omitted to be mentioned in the Will as they had been acquired subsequent to the execution of

the Will. The intention of the testator is to dispose of properties belonging to him and not already disposed of. The general residuary legacy clause

is not made applicable only to properties acquired by the testator after the execution of the Will. It would be useful in this connection to notice the

decision in Manikatha m mal v. Kaliaperumal (1969) 82 L.W. 71. The principles relating to interpretation of clauses in a Will regarding the

residuary legacy were laid down therein. Ramamurthi, J., pointed out that under a general residuary bequest of the properties of the testator,

everything that was not disposed of, whether he has not attempted to dispose of it or whether the disposition fails or lapses by any other event,

would pass under the residuary gift and in order to exclude from such a gift any particular property of the testator not otherwise disposed of by a

Will, it is necessary to find a plain and unequivocal intention on the part of the testator not to include that property in the residuary gift and that it

would not be sufficient if the Court does not find any specific words in the residuary clause including the particular property, but it would be

necessary to find words in the residuary clause excluding the property in question. What is crucial is not what is omitted to be included, but what is

expressly and specifically excluded. Applying the aforesaid principles and on a fair reading of the clause relating to general residuary legacy, there

is no exclusion of the suit property from the residuary legacy and the clause would take in all properties of the testator available at the time of the

execution of the will and not disposed of thereunder and also all other properties belonging to the testator acquired subsequent to the execution of

the Will and prior to his death. In other words, all items of properties not disposed of under the terms of the Will, whether available at the time of

the execution of the Will or acquired subsequently, would be covered by the clause relating to general residuary legacy and would be taken by the

legatees mentioned therein. In this case, if the suit property is included in Schedule 1 to Ex. A28, then, undoubtedly, Nanjappa obtained that

property as a result of the bequest in his favour and after his lifetime the respondent became entitled to it as per the terms of the Will Ex. A28

dated 28.1.1959. Even assuming that the suit property was not the subject-matter of the bequest under Schedule 1 to Ex. A28 in favour of

Nanjappa, under the clause relating to general residuary legacy, Nanjappa and Vedamuthu became entitled to moieties in the suit property. The

lower appellate Court was, therefore, right in its conclusion that the branches of Nanjappa and Vedamuthu became entitled to the suit property on

the basis of the general residuary clause found in the will Ex. A28.

The learned Advocate-General next contended that the branch of Vedamuthu was not represented in the course of the proceedings and the

Court below was, therefore, not in order in granting a declaration in favour of the branch of Vedamuthu. It was also further pointed out that no

decree for recovery of possession of the entire property can be given in favour of the respondents, for, the other branch of Vedamuthu may well

agree for the appellants continuing to remain in possession of the suit property. On the other hand, the Learned Counsel for the respondents

submitted that the respondents herein and the branch of Vedamuthu would be co-owners in respect of the suit property and, therefore, the lower

appellate Court was quite right in having declared the title in favour of the respondents and the branch of Vedamuthu. It was also further submitted

that it would be open to one co-owner to recover possession of the property belonging to himself and another co-owner from a trespasser for the

benefit of the other as well. Reliance was also placed in this connection upon the decision in Karuppan Vs. Ponnarasu Ambalam, .

On the basis of the clause relating to residuary legacy in the will Ex. A28 dated 28.1.1959, it has earlier been found that the respondents and

the branch of Vedamuthu together would be entitled to the entirety of the property, each being entitled to a moiety thereof. In so far as the

appellants are concerned, their case of oral gift and acquisition of prescriptive title having been found against, they are at best persons who are

unauthorisedly in possession of the suit property. It is also significant that the appellants have not pleaded any arrangement between themselves and

Vedamuthu regarding the latter''s moiety in the suit property. On the death of Nanjappa on 24.12.1972, the respondents herein became entitled to

succeed to Nanjappa''s moiety and the appellants have not made out any jural relationship between themselves and the respondents to clothe the

possession of the appellants with any legal right. In other words, as regards the branches of Nanjappa and Vedamuthu, the possession of the

appellants would only be that of trespassers. How the appellants can question the right of the respondents, one set of co-owners, to recover

possession of the property in its entirety, cannot be understood. As against a trespasser, any one of the co-owners may claim to be entitled to the

entirety of the property. In Karuppan Vs. Ponnarasu Ambalam, , relied on by the Learned Counsel for the respondents, Srinivasan, J., has pointed

out that possession of one co-owner would be on behalf of others as well and that it is not open to a defendant to say that as the plaintiff is only

one of the several co-owners, his claim should be confined only to the fractional interest of that co-owner. Referring to the decision in Palani

Ammal Vs. L. Sethurama Aiyangar, , to the effect that any one of the co-owners can maintain an action in ejectment against a trespasser, the

learned Judge upheld the right of one of the co-owners entitled to be in possession of the entire property to seek a declaration of title on behalf of

the other co-owner and recover possession of the same. Similar is the situation in the present case where the respondents, who are the co-owners

of the suit property with Vedamuthu''s branch, are seeking a declaration of the title of the two branches to the suit property and trying to recover

possession of the suit property from the appellants, who have no legal right to remain in possession of the same, on behalf of the other branch as

well. Under those circumstances, no exception can be taken to the reliefs of declaration and recovery of possession granted under the decree

passed by the lower appellate Court. No other point was urged.

Consequently, the second appeal fails and is dismissed with costs.