Ramakrishna Naidu vs Shanmugasundaram and Others

Bellie, J.—This second appeal is by the first defendant. The suit for declaration and injunction was dismissed by the trial court, but the

appellate court decreed it.

The two plaintiffs filed the suit alleging as follows:

The suit properties belonged to the joint family of the fifth defendant and his sons-the plaintiffs, and they (plaintiffs) are now in possession of it.

When the first plaintiff on 26.9.1981 went to plough the suit property the first defendant and his three-brothers-defendants 2 to 4 obstructed. It

appears the fifth defendant had executed a gift deed on 3.4.1972 in respect of this property in favour of his brother''s sons Madhiyazhagan and

Vijayaseelan. This gift deed is void and of no effect. The said settlees appears to have executed a sale deed on 22.12.1975 in favour of the first

defendant. The gift deed being void and of no effect the first defendant will not get any title under the sale deed dated 22.12.1975. Therefore the

suit is Redeclaration of the plaintiffs title to the suit property and for injunction restraining the defendants from interfering with their possession.

The defendants 1 to 4 in their written statement contended that the fifth defendant executed the gift deed as the Joint family manager and

therefore it is quite valid and effective. The plaintiffs by their subsequent conduct have consented to the said transaction. The plaintiffs claim that

they are in possession is not true and it is only the first defendant who is in occupation of it, and even before the sale in his favour he was in

possession under a usufructuary mortgage executed by the settlees in his favour in 1975. Therefore the first defendant is the absolute owner of the

suit property by his purchase from the settlees on 22.12.1975. In a prior suit O.S. No. 284 of 1975 between the first defendant and the fifth

defendant his title has been upheld. Therefore the plaintiffs are not entitled to any relief prayed for.

The trial court after framing issues, considering the evidence adduced in the case, held that the gift deed Ex.A-1 dated 3.4.1972 executed by the

fifth defendant in favour of his brother''s sons is quite valid and they having executed a sale deed Ex.B-2 dated 22.12.1975 in favour of the first

defendant and the first defendant has title to the property. It further held that the first defendant is in possession of the property. On these grounds

the trial court dismissed the suit.

On appeal the appellate court disagreeing with the findings of the trial court held that the gift deed having been executed by the fifth defendant in

respect of the joint family property, even though the fifth defendant was the manager, is not valid in law and therefore no title passed under it to

Madhiyazhagan and Vijayaseelan, and hence they could not pass any title to the first defendant under the sale deed Ex.B-2. On these findings the

appellate court set aside the judgment and decree of the trial court and decreed the suit as prayed for.

In the second appeal, it is contended that the finding of the appellate court that the gift deed is invalid in law is erroneous, and in any case it will

be valid atleast in respect of the fifth defendant''s 1/3 share in it.

The appellate court has referred to some of the judgments of the Supreme Court and this Court which are to the effect that a coparcener even if

he is the joint family manager has no right to execute a gift deed in respect of the joint family property and such a gift deed is void ab initio. In the

Division Bench case in Rayakkal v. Subbanna, ILR 16 Mad. 84, a Hindu, during the infancy of his son conveyed certain Immovable ancestral

property to his wife and married daughters by way of gift. After his death the son sued by his next friend to have these alienations set aside and to

recover the property. It was held that the alienations should be set aside together. In another later Judgment of a Division Bench of this Court in S.

V. Sundaresan v. Assistant Controller of Estate Duty, Coimbatore 1983 T.L.R. 1438, it was held as follows:

A. gift or device by a co-parcener in a Mitakshara family of his undivided interest in family properties is wholly invalid and void in toto, subject to

an exception in the case of a manager in favour of small gifts to female relations on Special occasions or for pious, charitable or religious purpose.

The learned Judge of the appellate court on the evidence found that out of 3 1/4 acres of land owned by the joint family, in respect of 93 cents the

gift deed in question has been executed and the fifth defendant had three sons and three daughters and therefore the gift deed in favour of his

brother''s sons cannot be said to be for any pious or charitable or religious purpose. In this view of the matter I am quite satisfied that the finding of

the appellate court that the gift deed is invalid and ineffective is to be upheld. Even in respect of the 1/3 share of the fifth defendant the gift deed is

invalid.

It was then argued that the trial Court has found that the first defendant is in possession of the property from 1972 i.e., the date of the gift deed,

and the appellate court has not given any finding regarding that. That is true. But the defendants have not taken any plea like adverse possession.

Therefore even if the first defendant has taken possession under an invalid gift deed that possession is not lawful and therefore he is bound to quit

possession. The suit of course is for declaration of title and for injunction and not for possession. But considering the merits of the case the

defendants are not entitled to be in possession. Therefore even if they are in possession they have to hand over possession to the plaintiffs.

It was also argued that inasmuch as the first court has held that the defendants are in possession and thereafter a long period has elapsed before

the first appellate court has given its Judgment on 29.6.1985 and thus the defendants have been in possession easily for more than 12 years and

therefore they have prescribed title by adverse possession. But this plea was made only just at the time of the arguments here and never before, I

do not think that possession during the pendency of the suit can be taken for calculating the period of adverse possession. I find no merit in this

submission.

In the result, the second appeal is dismissed. If the defendants are really in possession they have to deliver possession to the plaintiffs. The

appellant shall pay costs to the respondents-plaintiffs.