Singaram Pillai and Others vs Angammal

M. Duraiswamy, J.—The above Second Appeal arises against the judgment and decree passed in A.S. No.155 of 1998, on the file of the Principal District Court, Tiruchirapalli confirming the judgment and decree passed in O.S.NO.181 of 1990 on the file of the District Munsif Court, Thuraiyur. The defendants are the appellants and the respondent was the plaintiff. The plaintiff filed the suit in O.S. No.181 of 1990 for declaration, recovery of possession and mesne profits.

The brief case of the plaintiff is as follows:

According to the plaintiff, one Natesammal purchased the suit property under a registered sale deed dated 17.08.1973. Natesammal and her mother Thailammai Ammal were residing in the said house in their own right. Natesammal died intestate about 17 years ago leaving behind her mother as her sole heir. Her husband Chinnasamy Pandaram predeceased Natesammal. Therefore, Thailammai Ammal became the sole heir entitled to the suit property. On 05.10.1984, Thailammai Ammal executed a registered Will in favour of the plaintiff who is her granddaughter through her daughter Kullammal. The plaintiff was taking care of the deceased Thailammai Ammal during her last days and she died leaving the plaintiff to succeed to her intestate as per the said Will. Thailammai Ammal, when she was alive, leased out the house for a rent of Rs. 25/- per month to one Kumarasamy and she was residing in another portion of the same house. The first defendant is the husband of the second defendant and they were living along with Kumarasamy who died intestate in the year 1987. After the death of Thailammai Ammal, the plaintiff demanded the first respondent to vacate and deliver the possession of the suit property. However the first respondent failed to vacate the premises. In these circumstances, the plaintiff filed the suit.

The brief case of the defendants is as follows:

The defendants while disputing the averments stated in the plaint, specifically denied the execution of the Will dated 05.10.1984 by Thailammai Ammal in favour of the plaintiff. The second defendant was adopted by Kumarasamy. Kumarasamy married Natesammal in the year 1973. The said Natesammal died on 22.07.1995 leaving behind Kumarasamy as her sole heir. The said Kumarasamy also died on 05.11.1987 and during his life time, he executed a Will dated 16.05.1980 in favour of the second defendant. After the death of Kumarasamy, the second defendant is in possession and enjoyment of the suit property. Since the second defendant and predecessors are in possession of the suit property more than 12 years, she has prescribed title by adverse possession. In these circumstances, the defendants prayed for dismissal of the suit.

Before the trial Court, on the side of the plaintiff, two witnesses were examined and 15 documents Exs.A.1 to A.15 were marked and on the side of the defendants, two witnesses were examined and 19 documents Exs.B.1 to B.19 were marked. The trial Court, after taking into consideration the oral and documentary evidences let in by both the parties, decreed the suit.

Aggrieved over the judgment and decree of the trial Court, the defendants preferred an appeal in A.S.NO.155 of 1998 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the concurrent findings of the Courts below, the defendants have filed the above Second Appeal.

Heard Mr.S.Muthukrishnan, learned Counsel appearing for the appellants and Mr.V.Singan, learned Counsel appearing for the respondent.

At the time of admission of the Second Appeal, the following Substantial Questions of Law arose for consideration:

"(i) Whether the Courts below had considered the law of presumption relating to the marriage between the man and woman whose long and uninterrupted cohabitation had been proved beyond doubt supported by public document and whether the conclusions arrived at in this regard by the Courts below are supported by any evidence?

(ii) Whether the Courts below had considered the scope of binamy transaction Act particularly in the light of later developments and the law declared by the Supreme Court?"

On a careful consideration of the materials available on record and the submissions made by the learned Counsel appearing either side, it could be seen that Ex.B.1 sale deed dated 17.08.1977 would disclose that nowhere in the said document, Kumarasamy is referred to as the husband of Natesammal, but Natesammal was described as the daughter of Arumugam. Apart from Ex.B.1, the defendants have not produced any other document to establish their case. In these circumstances, the Courts below have rightly rejected Ex.B.1 and held that it does not help the case of the defendants. Therefore, the second substantial question of law is decided against the appellants.

So far as the first Substantial Question of Law is concerned, though the defendants contended that Kumarasamy and Natesammal got married in the year 1973, to speak about the said contention, except the evidence of D.W.1, no other witness was examined on the side of the defendants. It is the case of the defendants that the said Kumarasamy and Natesammal lived as husband and wife since 1951 and got only married in the year 1975 only. The defendants have not given any reason for not getting married at earlier point of time. Even with regard to the marriage of Kumarasamy and Natesammal, the evidence of D.W.1 is contradictory. As already stated, in Ex.B.1 Will dated 17.08.1973, Natesammal was described as daughter of Arumugam and not as wife of Kumarasamy. Since the plaintiff had contended that Kumarasamy was residing in the suit property as a tenant, much reliance cannot be placed on Ex.B.4-Voters Identity card. In Ex.A.1- Registered Will dated 05.10.1984, Thailammai Ammal categorically stated that the suit property was purchased by Natesammal and after her death, she became entitled to the same as her sole heir. Ex.A.1-Will was executed much prior to the filing of the suit. In the absence of sufficient evidence to prove the marriage between Kumarasamy and Natesammal, the Courts below have rightly rejected the said contention. Therefore, the first substantial question of law is decided against the appellants.

With regard to the plea of adverse possession claimed by the defendants, the said contention was not supported by any evidence. The second defendant has never exercised any right adverse to the interest of original owner of the suit property viz., Natesammal and in the absence of any such animus on the part of the second defendant, the plea of adverse possession cannot be granted. It is also settled position that the adverse possession cannot be claimed only as against true owner, ie., if the defendants are accepting the title of the plaintiff, only then they can raise the plea of adverse possession as against the plaintiff. In the absence of any evidence with regard to their continuous and uninterrupted possession adverse to the rights of the principal owner viz., the plaintiff, the Courts below have rightly rejected the plea of adverse possession. P.W.2-attestor of Ex.A.1 Will dated 05.10.1984, categorically spoke about the due execution of the Will. Taking into consideration all these aspects, the Courts below have rightly decreed the suit.

In these circumstances I do not find any ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The Second Appeal is liable to be dismissed. Accordingly the same is dismissed. However, there shall be no order as to costs.