Subramaniya Pillai vs Mannammal D/o. Manickam Pillai

Mr. P.R. Shivakumar, J.—The respondent having filed a caveat, had voluntarily taken notice in the second appeal before it was admitted and based on the representations made on both sides, the matter was referred to permanent Lok Adalat attached to the High Court of Madras and the attempt made for settlement in the permanent Lok Adalat resulted in a failure. Thus the matter stands listed today before this court. The second appeal has not yet been admitted. Still the counsel for both the parties have submitted that the appeal can be disposed of after hearing both sides and based on the materials available, if it is possible. As such, the arguments advanced by Mr. B.Manoharan, learned counsel appearing on behalf of the appellant and by Mr. T.S.Baskaran, learned counsel appearing on behalf of the respondent were heard. The materials produced in the form of typed set of papers were also perused. 2. The admitted facts are as follows:-

i) The suit properties originally belonged to one Manickam Pillai, son of Arunachalam Pillai of Kattunemili village. The said Manickam Pillai, through his first wife Madhanammmal, had got a daughter, who is none other than the respondent herein/defendant Mannammal. Manickam Pillai contracted a second marriage with one Parvathi Ammal and through her he got a daughter by name Thangammal. Thangammal married Subramaniya Pillai, the appellant herein/plaintiff. Thangammal is no more and she died in the year 1972. Prior to the death of Thangammal, on 19.03.1972, the said Manickam Pillai executed a Settlement Deed in favour of Palaniyandi Pillai, the husband of the respondent herein/defendant, giving him half of the suit properties. Certified copy of the Settlement Deed is Ex.A1. After the execution of the said Settlement Deed, Thangammal died in June 1972. Thereafter, on 13.09.1972, Manickam Pillai executed another registered Settlement Deed giving the remaining half portion of the suit properties to his second wife Parvathi Ammal. Ex.A2 is the original Settlement Deed. Thangammal died without issues and after the death of Thangammal, the appellant herein/plaintiff married another woman as his second wife. ii) There is no controversy over the fact that Manickam Pillai had got two wives living at one and the same time, but no party has raised any dispute regarding the validity of the second marriage of Manickam Pillai and the status of Parvathi Ammal as the wife of Manickam Pillai. This will lead to an inference that Manickam Pillai should have married Parvathi Ammal as his second wife before bigamy was prohibited by legislation. Parvathi Ammal died intestate in 1984. The appellant herein/plaintiff, being the widower of the only daughter of Parvathi Ammal, claims title to the suit property, namely half portion of the properties originally held by Manickam Pillai. Contending that the respondent herein/defendant, besides disputing the title of the appellant herein/plaintiff, made attempts to dispossess him, the appellant/plaintiff filed the suit in O.S.No.223/2008 on the file of the trial court for the reliefs of declaration and permanent injunction. 3. The appellant herein/plaintiff bases his claim on the following averments: i) Manickam Pillai, the original owner of the entire properties, executed Ex.A1-Settlement Deed in favour of Palaniyandi Pillai, the husband of the respondent herein/defendant and while executing the said Settlement Deed dated 19.03.1972, promised to execute a Settlement Deed in favour of the appellant herein/plaintiff in respect of the other half portion of the properties. Meanwhile, before such execution of any Settlement Deed in favour of the appellant herein/plaintiff, his (plaintiff''s) first wife Thangammal passed away and Manickam Pillai executed Ex.A2-Settlement Deed in favour of his (Manickam Pillai''s) second wife Parvathi Ammal on 13.09.1972 giving her the half portion of Manickam Pillai''s properties, which had been promised to be given to the appellant herein/plaintiff. Though the Settlement Deed came to be executed in favour of Parvathi Ammal, it was nothing but a sham and nominal one conveying no title to the said Parvathi Ammal. Even on the date of execution of original of Ex.A1, namely Settlement Deed in favour of Palaniyandi Pillai, possession of the other half portion of the properties of Manickam Pillai was given to the appellant herein/plaintiff and that was the reason why in one of the boundaries of the properties settled under the original of Ex.A1 it was shown to be the property of the appellant herein/plaintiff. The said properties thus held and enjoyed by the appellant herein/plaintiff are the properties shown as the suit properties, which are described in four items. Apart from the said fact, since Parvathi Ammal and Thangammal had died intestate without issues, the appellant herein/plaintiff became the sole legal heir to them and thus the appellant herein/plaintiff got the suit properties, as their legal heir and keeps the same in his possession and enjoyment. As such, the respondent herein/defendant started making false claims in respect of the suit properties and attempted to cause disturbance to the peaceful possession and enjoyment of the plaintiff in respect of the suit properties, which necessitated the filing of the suit. 4. The respondent herein/defendant resisted the suit on the basis of the following allegations: Thangammal, the wife of the appellant herein/plaintiff died in June 1972 without any issues. Thereafter, there was no connection between the appellant herein/plaintiff and Manickam Pillai. The plaintiff himself declared that he did not want any share in the properties of the family, of which Manickam Pillai and Parvathi Ammal were members, left Kattunemili village and settled in Neyveli, where he married one Pachaiammal, through whom he has got three sons and two daughters. The plaint averment that the settlement deed dated 13.09.1972 executed in favour of Parvathi Ammal was sham and nominal, is false. In fact, Parvathi Ammal accepted the said gift made under the Settlement Deed, got possession of the properties and sold 14= cents comprised in Survey No.177/3A to a person in Mangalampettai. The same was shown as item 3 in the said settlement deed and the remaining items were in her possession and enjoyment, till the death of Manickam Pillai in 1974. After the death of Manickam Pillai, the respondent herein/defendant was enjoying the said properties and was maintaining the said Parvathi Ammal. Parvathi Ammal also died in 1984. On the death of Parvathi Ammal, items 1, 2 and 4 of the properties dealt with in the Settlement Deed came to the respondent herein/defendant by way of succession. The appellant herein/plaintiff did not enjoy the suit properties at any point of time. Since the said properties are in the possession and enjoyment of the respondent herein/defendant, there was no necessity for her to trespass into the same. The respondent herein/defendant having continuously enjoyed the properties of Parvathi Ammal for over 36 years, she has also perfected title by adverse possession. 5. With the above said pleadings, the respondent herein/defendant had prayed for the dismissal of the suit. The learned trial judge framed five issues, which are as follows:- 1. Whether the plaintiff is entitled to the reliefs of declaration and permanent injunction as prayed for? 2. Whether item 1, 2 and 4 of the suit properties are in the exclusive possession and enjoyment of the defendant? 3. Whether the defendant is entitled to adverse possession? 4. Whether the plaintiff is entitled to the reliefs as prayed for? And 5. To what relief? 6. At the conclusion of trial, the learned trial judge decided all the issues in favour of the appellant herein/plaintiff and decreed the suit as prayed for without cost. The said decree of the trial court dated 12.08.2010 was challenged by the respondent herein/defendant before the learned II Additional Subordinate Judge, Villupuram in A.S.No.161/2010. The learned lower appellate judge besides identifying the point for consideration, has also identified three special questions for determination. They are as follows: Point for consideration: " Whether the trial court is correct in decreeing the suit?" Special questions: " 1. Whether step-daughter (defendant) becomes the legal heir of step-mother when son-in-law is alive? 2. Whether plaintiff has proved his case of title and possession? 3. Whether defendant who claims title on adverse possession, has proved her possession?" 7. After hearing the appeal, on a thorough re-appreciation of evidence, the learned first appellate judge came to the conclusion that the respondent herein/defendant alone was the legal heir of her step-mother Parvathi Ammal and the appellant herein/plaintiff did not derive any title to the suit property. The learned first appellate judge also came to the conclusion that the appellant herein/plaintiff failed to prove his possession and based on the said finding, chose to upset the judgment and decree of the trial court, with the result that the appeal was allowed and the suit was dismissed without cost. As against the said judgment and decree of the lower appellate court dated 30.06.2011, the present second appeal has been filed on various grounds set out in the Memorandum of Grounds of second appeal. 8. A further appeal to the High Court from the judgment and decree of an Appellate Court subordinate to the High Court shall lie only on a substantial question of law, as provided under section 100 of Civil Procedure Code. A party filing the second appeal, besides identifying the substantial questions of law, should precisely formulate and incorporate the same in the grounds of second appeal. The High Court also should formulate and record the substantial questions of law involved in the second appeal, if it chooses to admit the case. The appellant has suggested the following questions as substantial questions of law involved in the second appeal: " i) Whether the judgment of the lower appellate court is sustainable in law? ii) Whether the lower appellate court is correct in applying the proper provision of the Hindu Succession Act? iii) Whether the lower appellate court has considered the oral and documentary evidence in its proper perspective? iv) Whether the lower appellate court has erred in not properly construing the provisions of the Hindu Succession Act? v) Whether the lower appellate court was right in allowing the appeal, in the absence of evidence to hold so? vi) Whether the reasons given by the lower appellate court are sustainable in law?" In addition, at the time of hearing arguments, learned counsel for the appellant suggested one more question as substantial question of law. The same is as follows: "Whether the appellate court has not committed any error in not giving effect to the intention of the executor of Exs.A1 and A2-Settlement Deeds that his property should go equally to his daughters born through his two wives?" 9. A careful consideration of the above said questions suggested as substantial questions of law will lead to an inevitable conclusion that none of the questions can be accepted to be a substantial question of law. Question Nos. i to iv and vi are vague and general. Unless a finding of fact is projected to be perverse, there cannot be any question of elevating the same to the position of a substantial question of law. Perhaps, the attempt made by the appellant is to show that there is perversity in the finding of the lower appellate court. But the learned counsel for the appellant was not able to show that any part of the evidence was omitted to be considered by the lower appellate court or that any inadmissible piece of evidence was taken into account by the lower appellate court. The appellant is not in a position to make out a case that no reasonable person would have arrived at such a conclusion on a question of fact based on the evidence adduced. Hence the attempt made to show that there is perversity in the findings of fact rendered by the appellate court has ended in a failure. The reasons for the above said conclusions arrived at by this court are found in the succeeding paragraphs. 10. The suit properties and an equal extent of the property in the same survey numbers, originally belonged to Manickam Pillai. It is not in dispute that Manickam Pillai had got absolute power of disposition over his properties. He gifted the other half of the properties to the husband of the respondent herein/defendant under a settlement deed dated 19.03.1972, a certified copy of which has been produced as Ex.A1. What the appellant/plaintiff claims is that at the time of execution of the said settlement deed in favour of Palaniyandi Pillai, Manickam Pillai promised to gift the rest of the portion (now shown as the suit properties) to the appellant herein/plaintiff. For the said contention, except the interested testimony of PW.1, namely the appellant/plaintiff himself, there is no other testimony of disinterested witnesses. Even otherwise, such a promise will not confer a title on the appellant herein/plaintiff or effect a transfer of title in respect of the immovable property, whose value is not less than hundred rupees. The appellant/plaintiff has admitted the factual position that in respect of the properties shown as suit properties, Ex.A2-settlement deed was executed in favour of Parvathi Ammal on 13.09.1972 after the death of the first wife of the appellant herein/plaintiff. However, he has taken a novel plea that the same was sham and nominal. Even if it is taken as a sham and nominal that would not have conferred a title on the appellant herein/plaintiff. The appellant herein/plaintiff has not taken any plea that he had perfected title by adverse possession. Necessary ingredients to constitute adverse possession have also not been pleaded and proved. On the other hand, the appellant herein/plaintiff in paragraph 2 of his plaint itself has taken a definite stand that he became entitled to the suit properties, as the sole legal heir of Parvathi Ammal, who got the suit properties under Ex.A2-settlement deed. Hence the crucial question to be considered is, "whether the appellant/plaintiff being the son-in-law of Parvathi Ammal in the presence of a step-daughter would have become the sole or a co-legal heir along with the step-daughter?". There cannot be any hesitation in holding that the answer shall be in the negative. 11. Parvathi Ammal got the property under Ex.A2-settlement deed from her husband. As per Hindu Succession Act, 1956, in the absence of any issues to the pre-deceased daughter, the husband of the pre-deceased daughter shall be excluded by another daughter or a step-daughter. As such, the claim of the appellant/plaintiff to have become entitled to the suit properties as a legal heir of Parvathi Ammal, is bound to be rejected as untenable. That is the reason why the appellant/plaintiff has taken a novel stand that the settlement deed executed in favour of Parvathi Ammal itself was sham and nominal and by virtue of the promise made by Manickam Pillai on 19.03.1972, he continued to be in possession of the suit properties after he was inducted into possession of the suit properties by Manickam Pillai himself. The same cannot be true. Even if such a possession could be true, that would be nothing but a permissive possession. Possession for any length of time with permission will not confer title, unless such possession is converted into an adverse possession and proved to prolong over the period of limitation. Unfortunately, in this case, the appellant/plaintiff has not taken a stand that he has perfected title by adverse possession. On the other hand, the respondent herein/defendant, who has got derivative title, seems to have unnecessarily taken a plea that she had perfected title by adverse possession. In view of the above said finding that the respondent/defendant alone was the legal heir entitled to succeed to the properties of Parvathi Ammal and the appellant/plaintiff was not a legal heir of Parvathi Ammal in the presence of the respondent/defendant, this court comes to the conclusion that the finding of the lower appellate court to the effect that the derivative title of the plaintiff has not been established, whereas the respondent/defendant''s derivative title to the suit properties stand established, has got to be confirmed. The learned lower appellate judge has found that the appellant/plaintiff failed to prove his possession also. Such a finding is not proved to be perverse. Even assuming that the appellant/plaintiff is in possession, that will not be enough to sustain the claim of the plaintiff for a declaration that he has got absolute title to the suit property. Even in respect of the prayer for permanent injunction, the suit of the plaintiff shall not be sustained because, a person in possession without having a better right or title than the real owner which would impose a restriction on the enjoyment of the property by the real owner, shall not be sustained. No injunction against the real owner can be granted. 12. For all the reasons stated above, this court comes to the conclusion that there is no defect or infirmity, much less perversity, in any one of the findings of the lower appellate court. No substantial question of law is proved to have been involved in the second appeal. No question of law is shown to have decided erroneously by the lower appellate court. There is no merit in the second appeal and the same deserves to be dismissed. 13. In the result, the second appeal is dismissed. However, there shall be no order as to cost. Consequently, the connected miscellaneous petition, namely M.P.No.1 of 2012 is closed. S.A. Dismissed - No Costs - M.P. Closed.