Over 2 lakh Indian cases. Search powered by Google!

Case Details

BALAMMAL versus VELAYUTHAM (DECEASED)

High Court of Madras

Case Law Search

Indian Supreme Court Cases / Judgements / Legislation

Judgement


Balammal v. Velayutham (deceased) - SECOND APPEAL No.596 of 1983 [2002] RD-TN 649 (30 August 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



Dated: 30/08/2002

Coram

The Honourable Mr.Justice M. KARPAGAVINAYAGAM

SECOND APPEAL No.596 of 1983

1. Balammal

2. Adilakshmi,

3. Andal .. Appellants -Vs-

1. Velayutham (deceased)

2. Vittobaraj

3. M.R. Somu @ Munian

4. V. Rettitheeswaran

5. V. Devaguru

6. V. Vaitheeswaran

7. V. Manimehalai

8. V. Gurulakshmi

Respondents 2 and 3 were

impleaded

as per order in C.M.P.No.2982 of 2002

and respondents 4 to 8 were brought

on record as LRs. of lst respondent as

per order in C.M.P.No.7534 of 2002 dated

17.6.2002. ..Respondents Second Appeal against the judgment and decree dated 22.12.1982 in A.S.No.195 of 1980 on the file of the II Additional District Judge, Pondicherry, reversing the judgment and decree dated 15.9.1980 in O.S. No.207 of 1975 on the file of the Additional District Munsif, Pondicherry. For Appellants : Mr. V. Raghavachari

For Respondents : Mr. R. Gururaj

:J U D G M E N T



The plaintiffs are the appellants herein. They filed a the suit for declaration that the suit properties are their absolute properties and they are entitled to get possession after the life time of Kannammal, the first defendant. The trial Court decreed the suit. However, the appeal filed by Velayudham, the second defendant, challenging the said decree, was allowed and the suit filed by the plaintiffs was dismissed. Hence, this second appeal by the plaintiffs.

2. The case of the plaintiffs is as follows: "The suit properties belonged to one Kalivarada Pillai. He had no issues. He bequeathed the said properties by a registered Will dated 13.5.1938 in favour of Thangavelu Pillai, the husband of the first plaintiff, by giving absolute right to him and bequeathed usufructs by giving the life estate to Kannammal, the first defendant and her husband Natesa Pillai. After the death of Kalivarada Pillai, the first defendant and her husband were in enjoyment of the usufructs from the suit properties. Natesa Pillai died in 1940. Thereafter, the first defendant alone enjoyed the suit properties as the life estate holder. Thangavelu Pillai, the husband of the first plaintiff died on 12.1.1968 leaving behind his widow, the first plaintiff and his daughters, plaintiffs 2 to 4. While so, the first defendant, who is a life estate holder executed two settlement deeds in favour of Velayudham, second defendant as if the suit properties absolutely belonged to the first defendant. After the death of Thangavelu Pillai, who is the absolute owner of the suit properties, the vested right of Thangavelu Pillai being heritable was inherited by the plaintiffs. Since the cloud is cast upon the title of the plaintiffs through execution of two settlement deeds by the first defendant in favour of the second defendant, the plaintiffs issued a notice on 26.1.1975. The first defendant refused to receive the notice, whereas the second defendant after receipt of the notice, gave a reply denying the plaintiffs' right and title. Hence, the suit for declaration that the plaintiffs are entitled to get possession after the life time of the first defendant."

3. The first defendant Kannammal did not choose to file any written statement independently. The second defendant alone filed his written statement.

4. The case of the second defendant is as follows: "Kalivarada Pillai had no absolute right in the properties. His father, the owner of the properties, settled those properties in favour of the said Kalivarada Pillai under a gift deed dated 28.12.1922. One of the properties is the first item of the suit properties. Along with the said property, some cash was given. Out of the said cash, the said Kalivarada Pillai purchased the suit item, the house at Pondicherry. As per the said gift deed, Kalivarada Pillai had limited estate in the suit properties and his issues alone have absolute right. Therefore, Kalivarada Pillai had no absolute right over the suit properties and as such, the Will dated 13.5.1938 is not a valid one and would not create any right in favour of the beneficiaries. Even otherwise, after the death of Kalivarada Pillai, the first defendant and her husband enjoyed the properties for more than 30 years and so, the first defendant acquired prescriptive title. Therefore, the plaintiffs claim based upon the Will is an unsustainable one. The two settlement deeds executed by the first defendant, who has got valid title over the suit properties, in favour of the second defendant, are consequently valid and operative. At any rate, the suit is pre-mature, since the first defendant, the alleged life estate-holder is still alive."

5. On the strength of the above pleadings, appropriate issues were framed by the trial Court. On the side of the plaintiffs, P.Ws.1 to 3 were examined and Exs.A1 to A6 were marked. The first plaintiff examined herself as P.W.1. On the side of the defendants, D.Ws.1 and 2 were examined and Exs.B1 to B5 were marked. The second defendant examined himself as D.W.2.

6. On a consideration of the evidence on record, the trial Court decreed the suit as prayed for holding that the Will dated 13.5.1938 is valid and as such, the legal heirs of Thangavelu Pillai, who has got absolute right over the suit properties, would be entitled to declaration sought for.

7. Having aggrieved over the said decree, Velayudham, the second defendant filed an appeal before the appellate Court. After hearing the counsel for parties, the lower appellate Court reversed the findings of the trial Court and allowed the appeal holding that under the gift deed Ex.B2, Kalivarada Pillai came under the possession of suit properties only as a life estate holder and as such, he is bound by the conditions mentioned in Ex.B2 and consequently, Ex.A2, the Will is null and void and at any rate, Kannammal, the first defendant is still alive and she has got a right of enjoyment under Ex.A2 Will and as such, the suit is pre-mature.

8. At the time of admission, the following substantial questions of law were formulated by this Court:

1) Whether the Court below should not have held that it is not open to the respondent to disclaim the title of Kalivarada Pillai to the suit properties and that Kannammal is not competent to execute either Ex.B4 or B5 and that the respondent Velayudham cannot derive any title to the suit properties thereunder inconsistent with and repugnant to the estate created in favour of the appellants under Ex.A1?

2) Whether the Court has not erred in holding that the suit O.S.No.277 of 1975 on the file of the District Munsif, Pondicherry, is premature? 3) Whether the appellate Court should not have rejected the appeal as incompetent without Kannammal, the first defendant being made a party thereto?

9. In elaboration of the above substantial questions of law, the counsel for the appellants/plaintiffs would make the following contentions: "Once the second defendant admits Ex.A2, the Will as the source of possession of the suit properties for the first defendant, it is not open to her or any person claiming under her to deny the title of Kalivaradan questioning the validity of Ex.A2. Ex.B2 gift deed is of the year 1922. The suit house was purchased in the year 1926 under Ex.B3 . There is no evidence that Kalivaradan purchased the suit house out of the funds given to him under Ex.B2. According to the second defendant, the first defendant informed him that the suit house was purchased under Ex.B3 out of the funds given to Kalivarada Pillai under Ex.B2. The first defendant did not choose to come to the witness box to establish the same. The statement made by the second defendant regarding this is only a hearsay. The condition in Ex.B2, the gift deed gets invalidated, since admittedly, Kalivarada Pillai left no issues. In that event, Kalivarada Pillai would enjoy the suit properties as a legal heir of his father, who executed the gift deed and in that capacity, he is entitled to execute the Will A2. When the right or title to the suit properties is claimed by the first defendant, the first defendant has to prove the same by coming to the Court and adducing evidence for the same. She did not choose to come to the witness box. Therefore, adverse inference should be drawn as against her case. Ex.B2, the gift deed is not a relevant document, as it would not affect the validity of Ex.A2. Therefore, the issue raised in this case has to be decided only on the basis of Ex.A2 and its interpretation. The findings given by the lower appellate Court without giving reasons to hold that the findings rendered by the trial Court are wrong, are not correct. Therefore, the trial Court's decree has to be restored."

10. In reply to the said submissions, the learned counsel for the second defendant, the first respondent herein has made the following contentions:

"Ex.B2, the gift deed dated 28.12.1922 is an important document. As per the recitals of the gift deed, the donor has given only a life interest to his son Kalivarada Pillai. Suit item 1 alone is mentioned in Ex.B2. Item 2 has been purchased by Kalivarada Pillai from out of the funds given to Kalivarada Pillai as per Ex.B2 under Ex.B3 on 13 .9.1926. These two documents Exs.B2 and B3 have been suppressed in the plaint. There is no basis to plead that Kannammal and Natesa Pillai took possession as per the Will. Even in the settlement deeds Exs.A3 and A4 (Exs.B4 and B5), Kannammal, the first defendant has not referred that she took possession under the Will. On the other hand, their possession for well over 30 years is admitted. Consequently, the possession for over 30 years fructifies into prescriptive title. Since the second defendant denied the title of the plaintiffs, the plaintiffs ought to have sought for the relief of recovery of possession also. But, they have not done so. Therefore, the suit has to fail being opposed under Section 34 of the Specific Relief Act. In any event, Kannammal died on 21.12.1982. From 1982 till 2002, the second defendant is in exclusive possession. 20 years have gone by. The suit must have been filed for recovery of possession within 12 years. Not having done so, a fresh suit will not lie, as it would be hopelessly barred by time. Hence, the second appeal may be dismissed."

11. I have given my anxious consideration to the rival contentions urged on either side and gone through the records and the written submissions filed by both the parties and also the judgments rendered by both the Courts below.

12. On a careful perusal of the same, I am of the considered opinion that the conclusion arrived at by the lower appellate Court in the judgment impugned is clearly wrong, as the finding by the trial Court in decreeing the suit filed by the plaintiffs/appellants has been correctly rendered on the basis of the materials available on record and as such, this appeal is to be allowed setting aside the judgment impugned rendered by the lower appellate Court by restoring the judgment and decree passed by the trial Court. The reasonings for the above conclusion are as follows.

13. According to the plaintiffs/appellants, one Kalivarada Pillai bequeathed the suit properties by virtue of the Will Ex.A2 dated 13.5.1 938 in favour of Thangavelu Pillai, the husband of the first plaintiff and father of the plaintiffs 2 to 4 as absolute owners. However, through the same Will, the said Kalivarada Pillai bequeathed the right of enjoyment of the suit properties in favour of Kannammal, the first defendant and her husband Natesa Pillai for their life time. In other words, under Ex.A2 Will, the ownership was given to Thangavelu Pillai absolutely and the first defendant and her husband were given the right of enjoyment of the suit properties for their life time alone. As far as the Will is concerned, the genuineness of the Will Ex.A2 has not been questioned as the same has been marked as Ex.B1 on the defendants' side through D.W.1, who is an Officer in the District Registrar's Office, Pondicherry. Therefore, there is no difficulty in holding that Ex.A2, which is a valid and genuine document, has been executed by Kalivarada Pillai bequeathing the life interest to the first defendant and her husband and title of the properties in favour of Thangavelu Pillai, the husband of the first plaintiff absolutely.

14. The relevant portion of the Will is as follows: "My said legatees, Mr. Natesapillai and Mrs. Kannammal will enjoy only during their life time the immovable properties above mentioned with no ability either to sell or to give and mortgage them but they may make use at their will of the furniture, movables, household utensils and generally of all the properties either material or immaterial they will find in the house. At the death of my above said legatees, the aforesaid immovable properties will belong absolutely to Mr. Thangavelpillai."

So, the reading of the recitals in the Will would make it clear that the absolute right of ownership was given to Thangavelu Pillai and right of enjoyment as a life estate

holder was given to first defendant Kannammal and her husband.

15. There is no dispute in the fact that Natesa Pillai, husband of the first defendant died in the year 1940. Equally, it is not in dispute that on the basis of the Will Ex.A2 dated 13.5.1938, both Kannammal and Natesa Pillai were put in possession of the suit properties by Kalivarada Pillai. It is also not debated that subsequent to the death of Natesa Pillai, the exclusive possession of the suit properties was enjoyed by the first defendant. Thus, the possession of the suit properties with Natesa Pillai and Kannammal as joint possession and exclusive possession of Kannammal after the death of Natesa Pillai from the year 1940 was only on the basis of the Will Ex.A2 dated 13.5.1 938.

16. Now, it is the case of the plaintiffs that Thangavelu Pillai died on 12.1.1968 and thereby the vested right of Thangavelu Pillai was inherited by the plaintiffs. At that stage, they came to know that the second defendant Velayudham obtained two settlement deeds Exs.B4 and B5 dated 8.2.1975 and 30.12.1974 respectively by which the suit properties were settled by Kannammal, the first defendant in

favour of the second defendant as if the same belonged to the first defendant absolutely. Immediately, the plaintiffs issued Ex.A5 notice on 26.16.1975 to both the defendants stating that the plaintiffs holding the right of ownership of the suit properties as legal heirs of Thangavelu Pillai, would be entitled to possession of the suit properties after the life time of Kannammal and her husband and as such, the said properties cannot be settled in the name of third party. The first defendant refused to receive the notice, whereas the second defendant sent a reply stating that the plaintiffs will not have any right over the suit properties. Under such circumstances, the plaintiffs filed the suit for declaration that they are entitled to get possession of the suit properties after the life time of the first defendant, as the legal heirs of Thangavelu Pillai on whom the absolute right over the suit properties was given by virtue of the Will executed by Kalivarada Pillai.

17. The first defendant who is the main party to the suit did not choose to contest the same. Strangely, the second defendant contested the case by examining himself as D.W.2 and marking Ex.B2, a gift deed dated 28.12.1922 alleging that Kalivarada Pillai had no right of title to execute the Will Ex.A2, since Kalivarada Pillai's father through the said gift deed handed over the properties to Kalivarada Pillai on condition that he has got only life estate in respect of movable and immovable properties. Though item 2 of the suit properties is not mentioned in Ex.B2, the said house was purchased out of the cash given under Ex.B2 and as such, Kalivarada Pillai had no right to execute Ex.A2 Will in respect of house property also.

18. This contention of the second defendant is to be rejected on two reasons. Firstly, both in the written statement and in the deposition, the second defendant Velayudham admitted that only on the strength of the Will Ex.A2 dated 13.5.1938 executed by Kalivarada Pillai, Kannammal and Natesa Pillai were put in possession of the suit properties. He would further admit that the first defendant had the right over the suit properties by enjoyment and possession of the same only from the date of the execution of Ex.A2. Therefore, once the second defendant admits Ex.A2 as the source of possession for the first defendant, it is not open either to the first defendant or to the second defendant claiming under her, to deny the title of Kalivarada Pillai and as such, in principle he is estopped from denying the title of Kalivarada Pillai. The principle relating to the estoppel has been laid down in ANAR DEVI v. NATHU RAM (1994(4) S.C.C.250), MAROTI v. TULSIRAM (1994 Supp(3) S.C.C.746) and RAM CHARAN v. GIRJA NAND1NI ( A.I.R.1966 S.C.323).

19. Secondly, the validity of the Will has been questioned on the strength of Ex.B2 which is said to be a gift deed executed by the father of Kalivarada Pillai. Ex.B2 cannot be given any due consideration, since it is not a registered document and it has not been properly proved through the persons concerned. Furthermore, Ex.B2 would show that after Kalivarada Pillai, the absolute right would go to his male heirs. Admittedly, Kalivarada Pillai did not have any issues. So, even assuming that Ex.B2 was in existence, the condition imposed therein gets automatically invalidated. Consequently, Kalivarada Pillai would enjoy the suit property as a legal heir of his father and in that capacity, he is entitled to execute Ex.A2. That apart, the house property, which is one of the items mentioned in Ex.B2, was purchased by Kalivarada Pillai and there is no material to show that he purchased out of the funds given to him under Ex.B2. Ex.B2 is of the year 1922 and the house property was purchased in the year 1926 through Ex.B3. According to D.W.2, the second defendant, the first defendant and the first plaintiff informed him that the property under Ex.B3 was purchased out of the funds under Ex.B2. This information is only a hearsay and has no legal sanctity. Even otherwise, P.W.1 was not cross-examined on this aspect. Under those circumstances, the contention of the second defendant has to be rejected.

20. It is the specific case of the plaintiffs that Kannammal and Natesa Pillai had only limited estate and after their death, the property would devolve upon Thangavelu Pillai and his heirs. Admittedly, Natesa Pillai and Thangavelu Pillai died. Therefore, the legal heirs of Thangavelu Pillai would be entitled to have the possession of the suit properties which are in the possession of Kannammal, the first defendant, as the plaintiffs have got absolute title over the suit properties.

21. The case of the second defendant is that the plaintiffs have no title, as Kalivarada Pillai had no title to execute the Ex.A2 Will and the first defendant is having title by prescriptive title through adverse possession for over 30 years and as such, the settlement deeds Exs.B4 and B5 executed by the first defendant in favour of the second defendant are valid and consequently, the plaintiffs would not be entitled to have any relief of either declaration of title or right of possession.

22. When adverse possession is pleaded on behalf of the first defendant, it is for the first defendant to come to the box to establish the same. When a plea of adverse possession is made, that should be established to the hostility of the owner of the property.

23. When it is the admitted case of the second defendant that the first defendant and her husband were put in possession by Kalivarada Pillai in pursuance of the Will Ex.A2, it is quite strange to plead adverse possession hostile to the owner of the properties. Even assuming that such an alternative plea can be raised on behalf of the first defendant, it is for the first defendant to come to the box and establish the same. When the first defendant failed to disclose and abstained from doing so, the law obligates that adverse inference should be drawn as against her case.

24. Where a party to the suit does not appear into the witness box and states her own case on oath and does not offer herself to be cross-examined by the other side, a presumption would arise that the case pleaded by her or on behalf of her is not correct and the Court can draw a presumption under Section 114 of the Evidence Act against the party who did not enter into the witness box as has been held in VIDHYADHAR v. MANKIKRAO (A.I.R.1999 S.C.1441).

25. The trial Court has elaborately considered this aspect and come to the conclusion that the plaintiffs would be entitled to the decree. On the other hand, the lower appellate Court would simply allow the appeal by placing reliance upon Ex.B2 by referring to the condition imposed therein by completely ignoring the fact of the admitted possession of the suit properties by the first defendant on the basis of Ex.A2.

26. The lower appellate Court would further observe in the judgment that assuming that the intention of Kalivarada Pillai, who died without any issues, was that Thangavelu Pillai alone would enjoy the properties and not the heirs of Thangavelu Pillai.

27. This observation, in my view, is totally wrong. If the entire recitals of Ex.A2 are read, it would make it clear that absolute rights of ownership would devolve upon Thangavelu Pillai after the death of Kannammal and Natesa Pillai. This would mean that the heirs of Thangavelu Pillai after the death of Thangavelu Pillai, would be entitled to have the absolute right over the suit properties.

28. That apart, the lower appellate Court would hold that the suit was premature. This finding also is wrong because the suit was filed by the plaintiffs for the relief of declaration that the suit properties absolutely belong to them by virtue of Ex.A2 and they are entitled to get possession of the suit properties after the life time of the first defendant, in view of the fact that during the life time of the first defendant, the first defendant executed a settlement deed in favour of the second defendant as if the first defendant has got absolute right over the properties.

29. When the suit properties were attempted to be disposed of by the first defendant, who has not absolute right to alienate the same, the plaintiffs were constrained to approach the Civil Court for seeking the relief of declaration regarding the title over the suit properties and entitlement for getting the possession of the suit properties after the life time of the first defendant.

30. To sum up: Ex.A2, which is a valid and genuine document, has been executed by Kalivarada Pillai bequeathing the life interest to the first defendant and her husband and title of the properties in favour of Thangavelu Pillai, the husband of the first plaintiff absolutely. The possession of the suit properties with Natesa Pillai and Kannammal as joint possession and exclusive possession of Kannammal after the death of Natesa Pillai from the year 1940 was only on the basis of the Will Ex.A2 dated 13.5.1938. Once the second defendant admits Ex.A2 as the source of possession for the first defendant, it is not open either to the first defendant or to the second defendant claiming under her, to deny the title of Kalivarada Pillai and as such, in principle he is estopped from denying the title of Kalivarada Pillai. Ex.B2 gift deed cannot be given any due consideration, since it is not a registered document and it has not been proved to be a valid document. When a plea of adverse possession is made, that should be established to the hostility of the owner of the property. When the first defendant failed to disclose and abstained from doing so, the law obligates that adverse inference should be drawn as against her case. The finding by the lower appellate Court that the suit was premature is wrong because the suit was filed by the plaintiffs for declaration of title and entitlement for possession of the suit properties after the life time of Kannammal by virtue of Ex.A2.

31. In view of what is stated above, the grounds urged by the counsel for the respondents and the findings given by the lower appellate Court are against law and the evidence available on record and as such, the substantial questions of law, which have been formulated in this case, have to be answered in favour of the plaintiffs/appellants. Consequently, the judgment and decree of the lower appellate Court are set aside and the judgment and decree of the trial Court are restored. Thus, the second appeal is allowed with costs. 30-08-2002

Index: Yes

Internet: Yes

mam

To

1) The II Additional District Judge, Pondicherry. 2) The Additional District Munsif, Pondicherry.




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

Advertisement

dwi Attorney | dui attorney | dwi | dui | austin attorney | san diego attorney | houston attorney | california attorney | washington attorney | minnesota attorney | dallas attorney | alaska attorney | los angeles attorney | dwi | dui | colorado attorney | new york attorney | new jersey attorney | san francisco attorney | seattle attorney | florida attorney | attorney | london lawyer | lawyer michigan | law firm |

Tip:
Double Click on any word for its dictionary meaning or to get reference material on it.