(Prayer: [Appellants 2 to 5 are brought on record as LRs of the deceased sole appellant vide order dted 20.04.2012 and made in M.P.(MD) Nos.1 to 3 of 2012 in S.A.(MD)No.1105 of 2008]
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code, against the judgment and decree of the Additional District and Sessions Judge, Fast Track Court, Dindigul, dated 17.09.2005 in A.S.No.183 of 2000, confirming the judgment and decree passed by Subordinate Court, Palani, dated 20.09.2000 in O.S.No.75 of 1996.)
1. The plaintiff in the suit in O.S.No.75 of 1996 (Originally O.S.No.1020 of 1993) on the file of the Sub Court, Palani, is the appellant in this Second Appeal.
2.The plaintiff / appellant has filed the suit in O.S.No.75 of 1996 against the respondents herein for declaration of title and for recovery of possession in respect of the suit property which is a small piece of land measuring 19 feet x 22 feet with a residential building.
3. The case of the plaintiff as set out in the plaint are as follows:
3.1.The property, namely, vacant land measuring 31 feet x 155 feet was purchased by the plaintiff under a registered sale deed dated 11.06.1949. The plaintiff also constructed three small houses in the property. The said property was purchased by the plaintiff out of his own funds. However, the elder brother of the plaintiff one Janakiraman Pillai, who had no issues, requested the plaintiff to permit him to reside in the houses constructed by the plaintiff in 1969. Since the plaintiff's brother was issueless and he was affectionate towards the children of the plaintiff, the plaintiff permitted his elder brother to reside in the house which was constructed by him in the southern portion of the property purchased by him. From 1969, the plaintiff's brother Janakiraman Pillai was residing there only on the permission of the plaintiff.
3.2. Though the plaintiff permitted his brother to pay property tax etc., in the name of the plaintiff, the plaintiff came to know that his brother had changed the assessment in his name without the knowledge of the plaintiff. It came to the knowledge of the plaintiff only when the plaintiff made an attempt to pay the property tax after the death of his elder brother Janakiraman Pillai. After the death of the plaintiff's brother Janakiraman Pillai, the first defendant, who is none else than the son of another brother of the plaintiff one Marimuthu has illegally occupied the residential house and refused to vacate the property despite the plaintiff's attempt to get the house from the first defendant without any force. The second defendant was impleaded, as the appellant has also prayed for a mandatory injunction directing the second defendant to change the property tax assessment in the name of plaintiff.
4. The suit was contested by the first defendant and the case of the first respondent herein in the written statement are as follows:
4.1. The sale deed dated 11.06.1949 is admitted. Though the plaintiff's father one Kalimuthu Pillai did not have any resources, the entire family consisting of plaintiff, his two brothers and the father was living only with the earnings of plaintiff's elder brother Janakiraman Pillai. The suit property was purchased by the said Janakiraman Pillai in the name of the plaintiff for the benefit of the family. The plaintiff did not construct the three houses. The three houses were constructed by the joint efforts of the three brothers and they were in enjoyment. In or about 1965, there was a oral partition by which the southern most suit house was allotted to Janakiraman Pillai, the plaintiff's elder brother. The property tax assessment was also made in the name of said Janakiraman Pillai from the year 1969. Janakiraman Pillai was, therefore, enjoying the suit house as his own property continuously by paying property tax and kist for more than the statutory period.
4.2. After the partition and division of properties amongst the three brothers, Janakiraman Pillai constructed a pucca house in the suit property and he was living in the thatched shed put up in the upstairs of the house. The electricity service connection was obtained in the name of Janakiraman Pillai and the new service connection number is 638, which was also in the name of Janakiraman Pillai. After the death of Janakiraman Pillai, on 23.10.1986, the first defendant is entitled to all the assets of Janakiraman Pillai as Janakiraman Pillai had adopted the first defendant and brought up the first defendant as his own son. In the Will executed by Janakiraman Pillai in respect of his properties in favour of his wife and this defendant, the first defendant was mentioned as the son of Janakiraman Pillai. Once again a will dated 01.07.1985 was executed by Janakiraman Pillai after cancelling the earlier one. As per the latest Will dated 16.04.1986, the first defendant was given the suit property by Janakiraman Pillai. After the death of Janakiraman Pillai, on 23.10.1986, the first defendant is entitled to the suit property not only as the adopted son of Janakiraman Pillai but also on the basis of the Will dated 16.04.1986. The first defendant also set up title by adverse possession.
5. The trial Court after framing necessary issues dismissed the suit. On appeal by the plaintiff in A.S.No.183 of 2000 on the file of the Additional District Court, Dindigul, the appellate Court also dismissed the appeal and confirmed the judgment of the trial Court. The courts below, by calculating the age of the plaintiff as on the date of purchasing the suit property, came to the conclusion that the plaintiff would not have got means to purchase the suit property and other properties which are on the northern side of the suit property. The Courts below relied upon further the document Exs.B1 and B2-the letters alleged to have been written by the plaintiff himself for effecting change of assessment in the name of first plaintiff's brother. The Courts below then relied upon the oral evidence of some third parties about the enjoyment of the suit property by Janakiraman Pillai on the basis of the oral partition. Though there was no positive evidence, as to the factum of adoption, the courts below relying upon the fact that the plaintiff's brother Janakiraman Pillai had referred to the first defendant as his adopted son in all the Wills executed by him accepted the case of adoption and dismissed the suit after holding that the plaintiff has not proved his case that the suit property and other properties adjoining the suit property were purchased by him out of his own funds. One another circumstance, that was very much relied upon by the Courts below is that the plaintiff has admitted even in the plaint that on the northern side of the suit property, the property of Marimuthu is located. The above fact can be inferred from the boundary description found in the plaint. Since the plaintiff himself has admitted that he is not in possession of the property on the northern side, the Courts below have found that the division of properties among the three brothers as suggested by the defendant is more probable. Aggrieved by the concurrent judgment and decree of the Courts below, the plaintiff is now before this Court.
6. At the time of admitting the second appeal, the following substantial questions of law had been framed by this Court:
(a) When the plaintiff has neither admitted the execution of Ex.B1, B2 and B22 nor he has been confronted with the said exhibits by first respondent during the cross examination, whether the conclusion arrived at by Courts below that the said exhibits have been executed by plaintiff is legally tenable?
(b) When the execution and attestation of Ex.B21 has not been proven as contemplated under Section 68 of Indian Evidence Act and Section 63 of Indian Succession Act, whether the Courts below are correct in deducing the title of first respondent based on the same?
7. The learned counsel for the appellant submitted that the findings of the Courts below are perverse and that the judgment of the Courts below are contrary to the pleadings and the evidence that was let in by both parties. He pointed out the erroneous appreciation of facts and evidence by the Courts below to sustain his argument. Having regard to the grounds raised in the appeal, the learned counsel for the appellant was permitted to argue on all legal issues.
8. It is seen from the written statement that the first defendant's specific case is that the family of plaintiff and his brothers were living only with the income of the plaintiff's elder brother Janakiraman Pillai and that the suit property was purchased in the name of plaintiff for the benefit of the family. However, in the evidence, D.W.1 has not stated anything about the acquisition of the suit property, in the chief examination. However, during the cross-examination, the first defendant stated that the suit property was purchased out of the joint earnings of plaintiff and his two brothers. This was further explained by the defendant during cross examination that the money was given to his grand father Kalimuthu Pillai by all the three brothers and that his grand father purchased the property in the name of plaintiff. From this, it is evident that the first defendant has given up his case pleaded in the written statement where it was stated that the suit property was purchased out of the earnings of plaintiff's elder brother Janakiraman Pillai. This material inconsistency in the case of defendant was not considered by the Courts below. It is a well settled proposition that no amount of evidence is admissible without any pleading. Thus, the case of the defendant during cross examination which was accepted by the Courts below are contrary to the specific plea of first defendant in the written statement. Hence, the findings of the Courts below in relation to the acquisition of property cannot be sustained especially when this material inconsistency was never explained. When the suit property is purchased in the name of plaintiff, the presumption is in favour of plaintiff and no other acceptable evidence is let in to rebut the presumption.
9. It is true that the suit property has been described in the plaint as a property on the south of the house of Marimuthu Pillai. From this, the learned Counsel for the first respondent want this Court to draw an inference that the oral partition pleaded by the first defendant is probable and that the case of the first defendant that the whole property purchased in the name of plaintiff was divided among the brothers even in the year 1965, is true.
10. It is not in dispute that the suit property was purchased in the name of the plaintiff and the document namely the registered sale deed dated 11.06.1949 which is marked as Ex.A1 reveals that the entire sale consideration was paid only by the plaintiff and that there is no indication from this sale deed about the involvement of any of his brothers. It is admitted by the first defendant himself that his father had no other properties. From the evidence, it is clear that the family consisting of the plaintiff and his two brothers never lived as members of a joint family. In other words, the plaintiff and his brothers and father had no joint family property common to them and hence, they can never be considered as coparceners or members of a Hindu undivided family. In such circumstances, the purchase of property by the plaintiff in his name cannot be presumed as an acquisition by all the three brothers for the benefit of the family. It is to be proved that the property was purchased in the name of the plaintiff for the benefit of the three brothers. It has already been held that the plaintiff and his brothers do not constitute a Hindu joint family. In such circumstances, unless the first defendant establish the ingredients of benami transaction, he will not be able to succeed in claiming the property as the property of the plaintiff and his brothers. It is admitted in this case that Janakiraman Pillai was married at the time when the property was purchased. The plaintiff and his brothers were living separately and there is no evidence to show that the plaintiff and his brothers were living along with his father as it was suggested by the first defendant. The reason for Janakiraman Pillai to purchase the property in the name of plaintiff is not stated nowhere in the written statement or in the course of evidence. Unless there is some logic behind the purchase of property in the name of plaintiff, when the funds were provided by other brothers, it is impossible to accept the case of the first defendant. The presumption in favour of the plaintiff in this case has not been rebutted in this case so as to disentitle the exclusive ownership of the plaintiff over the suit property.
11. The learned counsel for the first respondent pointed out the description of the property as per the plaint by showing the suit property as one lying immediately on the south of the property of the plaintiff's another brother Marimuthu Pillai and submitted that this would clearly prove the case of the first defendant that there was a partition among the three brothers and that the suit property was allotted to Janakiraman Pillai and the northern portion of the property purchased in 1949 was taken by the plaintiff and the middle portion was allotted to first defendant's father Marimuthu Pillai. Though the submission of the learned counsel for the first respondent is appealing, this Court is not able to accept the said contention for the following reasons:
(a) The property description though shows the northern boundary of the suit property as the house of Marimuthu Pillai, there was no plea in the written statement to take this as an admission of the previous partition by the plaintiff. As a matter of fact, when P.W.1 was examined there was no suggestion put to him indicating that the description of the suit property would lead to an inference that the property on the north of suit property was allotted to the plaintiff's another brother Marimuthu Pillai. Hence, the contention of the learned counsel for the first respondent cannot be accepted without a specific plea or further evidence as the property on the northern side of the suit property is not the subject matter of the present suit.
(b) Secondly and more importantly, the suit property is described as the land and building. The extent of the land in the plaint is slightly less than a cent (19 feet x 22 feet). The property purchased under Ex.A1 dated 11.06.1949 was an extent of approximately 10 cents. Hence, the suit property is not certainly 1/3rd of the property purchased by the plaintiff. Hence, the case of the first defendant regarding the partition of the suit property by the three brothers is not probable.
12. The learned counsel for the first respondent relied upon the document Exs.B1 and B2 for the purpose of showing that the plaintiff himself had given consent for the property tax assessment being made in the name of Janakiraman Pillai. First of all, Exs.B1 and B2 were not produced from proper custody. First of all, these documents are the documents received by the local body and the official seal of the local body is found. Strangely, the documents were marked by the first defendant. There is no indication that the first defendant had applied for the copy of the original letters earlier and that the first defendant could obtain the same by other legal means.
13. The learned counsel for the appellant dispute the genuineness of Exs.B1, B2 and B22 and further submit that the first respondent has not chosen to confront P.W.1 with their documents to put question relating to the contents and signatures found in them. The lower appellate Court has observed that the plaintiff has not denied the signatures found in Exs.B1, B2 and B22 without adverting to the fact that the plaintiff was not confronted with these letters. In the letters in Exs.B1 and B22, there is no admission about the title of the suit property. Learned counsel for the first respondent relied upon the judgment of Hon'ble Supreme Court in the case of Union of Indiav. Moksh Builders and Financiers Ltd., and another reported in AIR 1977 SC 409 for the proposition that an admission is substantive evidence of the fact admitted and that admission duly proved are admissible in evidence even if it is not confronted to the party making it. In as much as the letters under Exs.B1 and B22 are not proved in the manner known to law, the same cannot be relied upon as an admission. These letters were marked through D.W.1 who stated that the letters were written by Janakiraman Pillai but signature was put by plaintiff. No suggestion was put to the plaintiff regarding the letters or their contents.
14. The learned counsel for the appellant submitted that the property tax assessment was originally in the name of the plaintiff and that the assessment of property tax was changed in the name of plaintiff's elder brother only in the year 1975. When it is shown that the property tax assessment was standing only in the name of plaintiff till 1975, it follows that the suit property was enjoyed by the plaintiff as his exclusive property till 1975 and that the buildings in the property purchased in 1949 were constructed only by the plaintiff. Since the constructions were put up prior to 1975 and that the plaintiff was paying the tax for the building in the suit property till 1975, the case of the plaintiff is more probable. Hence, this Court has no hesitation to hold that the property under Ex.A1 was purchased by the plaintiff out of his own funds for his benefit and that the suit property is an absolute property of the plaintiff. The Courts below failed to advert to the evidence of the witnesses during cross-examination who have pleaded ignorance about any personal knowledge about the oral partition and the details and nature of division of properties as between the brothers.
15. Though the first defendant has pleaded title by prescription, during the course of evidence, the first defendant has deposed as follows:
16. Assuming that the plea of adverse possession need to be decided, in this case, I find that the pleadings are lacking and there is no evidence to prove adverse possession. Having regard to the specific stand that the first defendant does not claim title by adverse possession or by his long and continuous enjoyment, the title of the first defendant cannot be upheld.
17. The plaintiff / appellant has also claimed title as the legal heir of his brother Janakiraman Pillai who died without issues. The first defendant claims that he is the adopted son of Janakiraman Pillai and that the suit property belongs to him also by virtue of the will executed by Janakiraman Pillai in his favour. The truth and validity of the Will was not gone into by the Courts below as the Courts below were convinced that the first defendant is the adopted son of Janakiraman Pillai. However, the findings of the Courts below on the validity of adoption are not sustainable, having regard to the admitted position that the factum of adoption and other requirements for proving such adoption as valid were neither pleaded nor proved in the manner known to law.
18. The learned counsel for the appellant relied upon the judgment of the Hon'ble Supreme Court in the case of Banwari Lal v. Trilok Chand and others reported in AIR 1980 SC 419 wherein the Hon'ble Supreme Court has held as follows:
The statement made by the testator in the will about the adoption is certainly a piece of admissible evidence as observed in Chandreshwar Prasad Narain Singh v. Bisheshwar Pratap Narain Singh cited by learned counsel for defendant No. 1 but there is no rule of law or prudence laying down the principle that such a statement must be regarded as conclusive, and this was also the view taken in that case. And the burden of proof of adoption was heavy on the defendant.
19. In the case of Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others reported in 2005 (5) CTC 207 the earlier judgment of the Hon'ble Supreme Court reported in 1987 (2) SCC 338 and AIR 1959 SC 504 were quoted with approval and the extracts of the previous judgments approved by the latest judgment of the Hon'ble Supreme Court are as follows:
An adoption would divert the normal and natural course of succession. Therefore the court has to be extremely alert and vigilant to guard against being enshared by schemers who indulge in unscrupulous practices out of their lust for property. If there are any suspicious circumstances, just as the propounder of the Will is obliged to dispel the cloud of suspicion, the burden is on one who claims to have been adopted to dispel the same beyond reasonable doubt. In the case of an adoption which is claimed on the basis of oral evidence and is not supported by a registered document or any other evidence of a clinching nature, if there exist suspicious circumstances, the same must be explained to the satisfaction of the conscience of the court by the party contending that there was such an adoption. (para 4)"
As an adoption results in changing the course of succession, depriving wives and daughters of their rights and transferring properties to comparative strangers or more remote relations it is necessary that the evidence to support it should be such that it is free from all suspicion of fraud and so consistent and probable as to leave no occasion for doubting its truth.
20. The learned counsel for the first respondent relied upon the judgment of the Hon'ble Supreme Court in the case of Union of India v. Moksh Builders and Financiers Ltd., and others reported in AIR 1977 SC 409 for the proposition that where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. In the case before the Hon'ble Supreme Court, the issue was whether the particular transaction was benami. It was held in the circumstances of the case that even in a case of benami transaction where there is no conclusive proof, the case must be dealt with on reasonable possibilities and legal inferences from proved or admitted facts. This judgment of the Hon'ble Supreme Court is not in favour of the respondents to establish that the transaction under Ex.A1 is a benami transaction and that though the property was purchased in the name of plaintiff, the money was paid by the other brothers and that the sale was for the benefit of all the brothers who are the real owners of the property. In Vathsala Manickavasagam and others v. N.Ganesan and another reported in 2013 (5) CTC 884, the Hon'ble Supreme Court has held that mere fact of purchase of property in the name of defendant would not lead to conclusion that the property was gifted in his favour. The case before the Supreme Court was the case where the mother of the defendant had admitted that the property was purchased in the name of the defendant to avoid violation of rules relating to service of his father. Hence, the judgment of the Hon'ble Supreme Court is not applicable to the case herein.
21. The learned counsel for the appellant relied upon a judgment of the Hon'ble Supreme Court in Lakshman Singh Kothari v. Smt. Rup Kanwar alias Rup Kanwar Bai reported in 1962-II-MLJ-112 it has been held as follows:
Under the Hindu Law, whether among the regenerate caste or among Sudras, there cannot be a valid adoption unless the adoptive boy is transferred from one family to another and that can be done only by the ceremony of giving and taking. The object of the corporeal giving and receiving in adoption is obviously to secure due publicity. To achieve this object it is essential to have a formal ceremony. No particular form is prescribed for the ceremony, but the law requires that the natural parent shall band over the adoptive boy and the adoptive parent shall receive him. The nature of the ceremony may vary depending upon the circumstances of each case. But a ceremony there shall be, and giving and taking shall be part of it. The exigencies of the situation arising out of diverse circumstances necessitated the introduction of the doctrine of delegation; and, therefore, the parents, after exercising their volition to give and take the boy in adoption, may both or either of them delegate the physical act of handing over the boy or receiving him,. as the case may be, to a third party.
22. In this case, the adoption even according to the plaintiff suggest that it must be after the commencement of Hindu Adoption and Maintenance Act. The plaintiff has examined D.W.2 to prove the factum of adoption. Even though D.W.2 speaks about his presence at the time when Janakiraman Pillai took the first defendant in adoption, no suggestion was put to this witness disputing his version. Hence, this Court does not find that the acceptance of the case of adoption pleaded by the first defendant by the Courts below do not warrant any interference and this Court confirm the findings of the Courts below regarding the factum of adoption of the first defendant by Janakiraman Pillai and the first defendant is, therefore, entitled to succeed to the properties of Janakiraman Pillai as his adopted son.
23. The Courts below have accepted the case of first defendant regarding the title of the suit property ignoring the vital circumstance that the evidence of D.W.1 is contrary to the pleading. Hence, in view my conclusions I find that the judgments of the Courts below are perverse and the question of law are answered in favour of the appellant and the appeal is allowed and the judgment and decree of the lower appellate Court in A.S.No.183 of 2000, dated 17.09.2005, confirming the judgement and decree in O.S.No.75 of 1996, dated 20.09.2000, are set aside and consequently, the suit in O.S.No.75 of 1996 is decreed as prayed for. However, there is no order as to costs.