Rathinammal, Latha, Chitra Devi, Balakrishnan and Uthiraraj vs Suganthiri, Subbathal @ Kannammal, Kanagaraj, Leelavathi and Bhanumathi

A. Ramamurthi, J.—The defendants in the suit are the appellants.

The case in brief is as follows:- The plaintiff filed a suit for declaration and recovery of possession with mesne profits. One Kasiappa Gounder

had two wives, namely, Marathal and Kannammal @ Subbathal (1st defendant). The plaintiff is the only daughter of Marathal. Defendants 2 to 4

are the children of the 1st defendant. Kasiappa Gounder died in January 1974 and Marathal died in July 1974. On 30.06.1956 Kasiappa

Gounder settled the property in favour of Marathal and she was given the right to enjoy the property and thereafter, the legal heirs of Kasiappa

Gounder can enjoy the property and Marathal has no right to either mortgage or sell the property. Possession of the property was also given to

Marathal. She had a pre-existing right in the property for maintenance and after the passing of Hindu Succession Act, it gets enlarged and she

became the absolute owner of the property. However, with a mala fide intention, Kasiappa Gounder executed the sale of the property in favour of

one Palanisamy Gounder, brother of the 1st defendant and the husband of the 5th defendant; but possession was not given to him. The defendants

attempted to trespass into the property and hence the suit.

The defendants contended that the plaintiff has to prove that Kasiappa Gounder executed a maintenance deed on 30.06.1956 in favour of

Marathal. He did not execute any settlement deed in her favour and in any event, it has not come into force and it was never acted upon. Marathal

was also not put in possession of the property. Kasiappa Gounder has got every right to execute sale deed in favour of Palanisamy Gounder.

Possession was also given to him in pursuance of the settlement deed. Although Marathal was aware of the same, she never objected. Palanisamy

Gounder and the legal heirs were in possession and enjoyment of the property and they have also prescribed title.

The trial court framed 3 issues and on behalf of the plaintiff, P.Ws.1 and 2 were examined and Exs.A-1 and A-2 were marked and on the side of

the defendants, the 5th defendant alone was examined as D.W.1 and Exs.B-1 to B-35 were marked. The trial court dismissed the suit and

aggrieved against this, the plaintiff preferred A.S.No.65 of 1989 on the file of Sub Court, Udumalpet and the learned Judge after hearing the

parties, allowed the appeal, set aside the judgment and decree of the trial court and decreed the suit in favour of the plaintiff and aggrieved against

this, the defendants have come forward with the present second appeal.

At the time of admission of the second appeal, the only substantial question of law as framed by this Court is Whether the lower appellate court

is right in applying section 14(1) of the Hindu Succession Act to the facts and circumstances of the case ?

The appellants filed CMP No.3059 of 2002 to permit them to raise one more substantial question of law, i.e. ""Whether the plaintiff has proved

due execution of the settlement deed Ex.A-1 ? The appellants also filed CMP No.2164 of 2002 under Order 41 Rule 27 of CPC for reception of

two additional documents, namely, the sale deed dated 23.11.1954 in favour of Marathal and also another registered partition deed dated

13.11.1956 ?

Heard the learned Senior Counsel for the parties.

The points that arise for consideration are (1) Whether CMP No.3059 of 2002 can be allowed ? And (2) Whether CMP No.2164 of 2002

can be allowed ?

It is admitted that the property originally belonged to Kasiappa Gounder and he had two wives namely, Marathal, the 1st wife and the 1st

defendant, the 2nd wife. The plaintiff is the only daughter of Marathal and defendants 2 to 4 are the children of the 1st defendant. Defendants 5 to

9 are the legal heirs of deceased Palanisamy Gounder. Ex.A-1 dated 30.06.1956 was the settlement deed executed by Kasiappa Gounder in

favour of Marathal. The plaintiff stated that Marathal was in possession and enjoyment of the property till her death in July 1974. However,

Kasiappa Gounder alone agreed to pay house tax for the property. No doubt, in Ex.A-1 there is recital to the effect that Marathal is entitled to

enjoy the property till her lifetime and she had no power of alienation and ultimately on her demise, the property will devolve on the legal heirs. It is

stated by the plaintiff that Ex.A-1 was executed by Kasiappa Gounder in lieu of maintenance to Marathal on 30.06.1956 and after the passing of

Hindu Succession Act, her right got enlarged and she became the absolute owner of the property.

The learned senior counsel for the appellants/ defendants contended that the settlement deed Ex.A-1 has not come into force and possession of

the property was also not given to Marathal and possession continued only with Kasiappa Gounder. He further stated that Kasiappa Gounder had

executed the sale deed under the original of Ex.A-2 dated 25.03.1971 in favour of Palanisamy Gounder and possession was also given to him.

Exs.B-1 to B-35 have been pressed into service in order to show the payment of house tax, electricity charges, etc. In view of these documents

only, the appellants contended that possession of the property continued with Kasiappa Gounder and he had executed the sale deed in the year

1971 and possession was also given to Palanisamy Gounder and ever since the date, as they were in possession and enjoyment of the property,

they have also prescribed the title to the property since the plaintiff has not filed the suit within a period of 12 years.

The learned senior counsel for the appellants also contended that the lower appellate court erred in holding that Marathal was given possession

of the property pursuant to the settlement deed. It also erred in holding that Kasiappa Gounder had no right to sell the property. The reasoning

given by the lower appellate court to reject the case of the appellants regarding their acquisition of title by adverse possession is not sustainable

under law. The learned senior counsel further stated that an additional ground has been raised to the effect that the settlement deed Ex.A-1 has not

been duly proved in accordance with law and for which only, CMP No.3059 of 2002 has been filed.

A bare reading of the written statement filed by the defendants only indicates that the settlement deed Ex.A-1 was not acted upon and

possession was not given. It is not the case of the appellants that by coercion and undue influence the settlement deed Ex.A-1 was taken.

Moreover, at the time of marking the document, no objection was raised by the appellants relating to Ex.A-1. It is of the year 1956 and only when

the truth and validity of the document is disputed, then the burden will be upon the plaintiff to examine either the attestors or the scribe of the

document to prove the same. When the truth and validity of Ex.A-1 is not disputed and after allowing the document to be marked without any

objection, it is no longer open to the appellants to raise now this after a belated stage in the second appeal that Ex.A-1 has not been proved in

accordance with law. Hence, I am of the view that the appellants have not made out any case for raising one more additional ground.

The appellants have also filed CMP No.2164 of 2002 to mark two additional documents, namely, the sale deed dated 23.11.1954 in favour

of Marathal and also another partition deed dated 13.11.1956. These documents have not been filed either in the trial court or in the lower

appellate court. Now, the learned senior counsel for the appellants would contend that these documents are necessary in order to show that

Marathal was sufficiently possessed of property to maintain herself. The respondents also filed counter to this application that Order 41 Rule 27 of

CPC will come into play only when the court is unable to decide the case before it without further document. The court also cannot help a party,

who by their negligence or over confidence, failed to adduce sufficient evidence in support of their case. Further more, there is nothing in the

written statement filed by the defendants at the earliest point of time that Marathal was already possessed of property and there was no necessity

to give her any property in lieu of maintenance. In the absence of said plea at the earliest point of time, the production of these additional

documents would not improve the case of the appellants in any way and hence, I am of the view that these additional documents are neither

relevant nor necessary to decide the dispute between the parties.

It is seen from section 14(1) of the Hindu Succession Act that any property possessed by a female Hindu, whether acquired before or after the

commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. The plaintiff had positively established that Ex.A-

1 was duly executed by Kasiappa Gounder and she was in possession and enjoyment of the property. By virtue of section 14(1) of the Hindu

Succession Act, the limited right of Marathal gets enlarged and she became the absolute owner of the property. The plaintiff being the only

daughter of Marathal, is entitled to succeed the property and she is also entitled to recovery of possession as well as mesne profits if the

appellants/defendants failed to establish that they have prescribed title to the property by adverse possession. There is no difficulty in coming to the

conclusion that Ex.A-1 is a settlement deed and it was duly proved and Marathal acquired absolute right by virtue of section 14(1) of the Hindu

Succession Act.

The learned senior counsel for the appellants took another plea that they have prescribed the title to the property by adverse possession.

According to the learned senior counsel, Ex.A-2 sale deed was executed by Kasiappa Gounder in favour of Palanisamy Gounder as early as 1971

and the present suit was filed only in the year 1985. It is necessary to state that Ex.A-1 was accepted and acted upon and Marathal died only in

July 1974 and as such, if it is taken into consideration the suit was filed in the year 1985 i.e.only within a period of 11 years. It is not the case of the

appellants that Marathal was residing in some other property and she died. The plaintiff has taken a categorical stand that she as well as Marathal

were residing only in the suit property and in accordance with the recitals in the document, Kasiappa Gounder, her husband alone have paid the

house tax. Simply because the tax was paid by the husband, it does not mean that Marathal had no absolute title in the property or possession was

not given to her. Considering the fact that Marathal died only in July 1974, the possession of the appellants cannot be considered to be an adverse

one. Further more, it is the case of the appellants that they based their claim to the property based upon a title deed and this being so, it is not open

to the appellants also to have prescribed the title to the property. In my view, the lower appellate court had correctly considered the legal position

and rightly came to the conclusion that the plaintiff is entitled to the relief as prayed for. There is no illegality or infirmity calling for any interference.

Hence, the points are answered accordingly.

For the reasons stated above, the second appeal fails and is dismissed. No costs. CMPs.No.2164 and 3059 of 2002 are also dismissed.