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Chikkagangamma Vs. Chunchanakuppa Rudriah and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtKarnataka High Court
Decided On
Case NumberSecond Appeal Nos. 874 and 875 of 1967
Judge
Reported inAIR1972Kant222; AIR1972Mys222; (1972)1MysLJ376
ActsLimitation Act, 1963 - Schedule - Articles 64 and 65
AppellantChikkagangamma
RespondentChunchanakuppa Rudriah and anr.
Appellant AdvocateK.S. Setlur, Adv.
Respondent AdvocateC. Savand, Adv.
DispositionAppeal dismissed
Excerpt:
.....the income of these ear-marked properties, he having also the additional obligations of performing their obsequies on their death and paying the assessment of the suit properties throughout......made regarding the menses profits.2. venkataramanachari, who died on 15-3-1942, had as his first wife thimmakka and a second wife by the same name. the first wife's son was hanumanthachari and his son is sanjeevachari, who is the third defendant in o. s. no. 535 of 1960 and the second defendant in o. s. no. 536 of i960. venkataramachari by his second wife had two sons and a daughter. the sons were venkatachari and appavyachari. the daughter is naniamma, who is the second defendant in o. s. no. 535 of 1960 and the first defendant in o. s. no. 536 of i960.3. venkataramachari executed a settlement deed ex. p-1 on 15-1-1941, which would be a little more than a year prior to his death. his first wife thimmakka died long before exhibit p-l. hanumanthachari died in 1941. the second wife.....
Judgment:

D. Noronha, J.

1. These two are plaintiff's Second Appeals. She filed Original Suits Nos. 535 and 536 of 1960 in the Court of the Second Munsiff. Bangalore on 26-10-1960. In O. S. No. 535 of 1960 she prayed for a decree declaring that she is entitled to the suit land. In O. S. No. 536 of 1960 she prayed for a decree that she is entitled to the suit house and to direct the first defendant to deliver possession and also to direct an enquiry to be made regarding the menses profits.

2. Venkataramanachari, who died on 15-3-1942, had as his first wife Thimmakka and a second wife by the same name. The first wife's son was Hanumanthachari and his son is Sanjeevachari, who is the third defendant in O. S. No. 535 of 1960 and the second defendant in O. S. No. 536 of I960. Venkataramachari by his second wife had two sons and a daughter. The sons were Venkatachari and Appavyachari. The daughter is Naniamma, who is the second defendant in O. S. No. 535 of 1960 and the first defendant in O. S. No. 536 of i960.

3. Venkataramachari executed a settlement deed Ex. P-1 on 15-1-1941, which would be a little more than a year prior to his death. His first wife Thimmakka died long before Exhibit P-l. Hanumanthachari died in 1941. The second wife Thimmakka died in 1957. Her first son Venkatachari died in 1939, and her second son Appayyachari died in about April 1960, about six months prior to the filing of the suits.

4. The plaintiff claims the suit properties as the vendee from Sanjeevachari under the sale deed, certified copy of which is Ex. P-7 (a) dated 31-7-1960, of the land in O. S. No. 535 of 1960, and under the sale deed Ex. P-6 dated 1-8-1960 of the house in O. S. No. 536 of 1960, his case being that Sanjeevachari was the owner of these two properties under the settlement deed Ex. P-l. Sanjeevachari remained ex parte in both the suits. The first defendant Rudriah in O. S. No. 535 of 1960 has been the tenant of the suit land. He and the second defendant Naniamma filed written statements resisting the plaintiff's claim. In O. S. No. 536 of 1960 the first defendant Naniamma filed a written statement resisting the plaintiff's claim. In both the suits, the plaintiff filed a reply statement. In the trial court in O. S. No. 535 of 1960 Issues Nos, 1, 2. 3 and 6 were--

'(1) Is the plaintiff owner of the suit schedule land? or

(2) Has the second defendant better title to the suit land under the circumstances pleaded?

(3) Whether Thimmakka, mother of the second defendant, had perfected her title by adverse possession in respect of the suit land?

(4) Whether the suit Is barred by Limitation?'

Issues Nos. 1. 2, 3. 4 and 7 in O. S. No. 536 of 1960 were--

'(1) Has the plaintiff title to suit house as pleaded by her? or

(2) Has the defendant better title to It as contended in the written statement?

(3) Is the plaintiff entitled for possession of the suit house ?

(4) Has Thimmakka perfected her title to the suit house by adverse possession?

(7) Is the suit barred by time?'

Issue No. 1 in O. S. No. 535 of 1960 was answered in the negative, and issues Nos. 2 3 and 6 were found in the affirmative. In O. S. No 536 of 1960 issues Nos. 1 and 3 were answered in the negative, and issues Nos. 2, 4 and 7 were found in the affirmative. The two suits which were tried together were disposed of by a common judgment, and both were dismissed.

5-6. The plaintiff went up in appeal to the Court of the Civil Judge Bangalore District in R. As. Nos. 37 and 38 of 1965. The principal point for determination was formulated as below:--

'Whether at the time of Ex. P-6 and the original of Ex. P-7 (a). Sanjeevachari (P. W. 1) was the absolute owner of the suit properties and whether he had title to convey the suit properties to the plaintiff or. by that time due to the adverse possession of the suit properties by Thimmakka, the rights of P. W. 1 had been extinguished?'.

The point was answered against the plaintiff. The two appeals, which were disposed of by a common judgment, were dismissed.

7. The trial court found on issue No. 5 in O. S. No. 535 of 1960 that the suit is not maintainable as brought. But the lower appellate court found that it is maintainable and. in view of this, the plaintiff's learned Advocate, Sri Settlur, did not press his application for amendment of the plaint. It stands dismissed.

8. The plaintiff's vendor Sanjeevachari was never in possession of the suit properties from the time of the settlement deed Ex. P-1 dated 15-1-1941. He did not pay any assessment. Immediately after the death of Venkataramachari, his second wife Thimmakka got the patta changed in her name and began paying the assessment. Rudriah, the tenant of the land, was paying the rent to Venkataramachari and after him to his second wife Thimmakka and subsequently he has been paying it to Naniamma Venkataramanachari, Thimmakka. Appawachari and Nanianirna were residing in the suit house. The plaintiff was residing elsewhere. These facts, which have been concurrently found by both the courts below, are now conceded for the plaintiff appellant. Venkataramanachari's second wife Thimmakka executed a registered settlement deed Ex. D-5 dated 25-11-1948, settling the suit properties on her daughter Naniamma (second defendant in O. S. 535 of 1960 and first defendant in O. S. 536 of 1960).

9. The entire dispute hinges on the interpretation of the settlement deed Ex. P-1. According to Sri Savand, respondent's learned Advocate, what was reserved for Venkataramanachari, his second wife Thimmakka, and their son Appayyachari was only a right of maintenance to be provided by Sanjeevachari during their life-time, he having to take possession of the suit properties immediately or at least when he attained majority in about the year 1943. He did not do so. and Thimmakka by taking possession of the suit properties after the death of Venkataramanachari, and later Naniamma, continued to be in possession thereof, openly and adversely to Sanjeevachari. for well over 12 years and perfected their title by adverse possession. The contention of the plaintiff-appellant, on the other hand, is that Venkataramanachari, his second wife Thimmakka and their son Appayyachari were in possession of the suit properties having a life estate therein, that their adverse possession would be effective against Sanjeevachari only until the life-time of the last of the three, that Appayyachari died in about April 1960. and from then Sanjeevachari is the full owner of the suit properties, and he has passed on his title to the plaintiff.

10. A faithful and agreed English translation of the material portions of the settlement deed Ex, P-1, which is in Kannada, is as follows--

'(A) This settlement deed dated this 15th day of January Nineteen hundred and forty one executed by me, Venkataramanappachari, son of Appannachari of Panchayat residing in Sulkere village Kengeri Hobli, Bangalore South Taluk, in favour of my own wife Thimmakka, my own son Appayyachari, my younger daughter Naniamma and also my own grandson aged 15 years Sanieevachari who is the own son of Hanumanthachari, eldest son of my deceased elder wife the late Thimmakka, to all these four witnesseth.

(B) Whereas I am at present aged 85 years and very old and whereas I have no confidence of living for a long time In future and, having determined to make a proper settlement of my properties, moveable and immovable now, when I am in full command of my mental faculties, to all the above four persons as per the schedules shown here below, I have distributed and settled as under, Appayyachari aged about 25 years, my son born in the womb of my younger wife Thimmakka, is not in his senses and is insane ever since his birth till this day. He is unfit to marry and is not married, and I have divided myself from Hanumanthachari, the son of my elder wife, by giving him his share in all the moveable and immoveable properties of my family about 20 years ago, and I and Venkatachari my own son born of my second wife have lived together as members of a joint Hindu family till now. He died about 1 1/2 years ago. I had got Venkatamma, my daughter-in-law, married to him. As myself and Venkatamma found it incompatible to live together in one house, I have given her moveable and immoveable properties for her maintenance and got her rights released before Panchayatdars. I have now devised all the moveable and immoveable properties that have remained with me after giving to my eldest son and my daughter-in-law, as aforesaid;

(C) In regard to the property comprised in Item 1 of the schedule here-under, which is reserved for the maintenance of myself, my wife Thimmakka and my 25 years old son Appavvachari, I direct that my own grandson Sanjeevachari shall look after the maintenance of the three of us by providing food and clothes during the lifetime of all of us, and pay the assessment of the properties himself. The balance of all immoveable properties mentioned in the schedules hereunder shall be enjoyed separately from now onwards as they like, by first Thimmakka, second Naniamma and third Sanjeevachari as given to their respective share with full powers. x x x;

(D) Property mentioned in the first item of schedule which is reserved for us three, that is myself, my wife Thimmakka and my son Appayyachari, shall after our lifetime, go to our own grandson Sanjeevachari, who shall give us food and clothing, pay the assessment and perform our obsequies. And the property shown in the same item, which is the subject matter in O. S. 356 of 35-36 on the file of the Second Munsiff, Bangalore shall be taken possession of and enjoyed after the execution petition is disposed of and the decree is executed; that is, it shall be enjoyed after the lifetime of us three. To this effect have I, out of my pleasure, executed this settlement deed.

(E) Schedule I, List of real properties reserved for the maintenance of Venkataramanappachari, Thimmakka and Appayyachari. Dry land comprised in S. No. 11 of Sulkere village, Kangeri Hobli, Bangalore Taluk x x x In between these boundaries extent 3 acres 1 gaunt assessed at Rs. 3-6-6. House situated in ditto Sulkere village, in which we live, bearing Khaneshumari No. 5 x x x x x From these two items of property the three of us shall maintain ourselves. After the lifetime of those persons these properties shall belong to Sanjeevachari. He shall pay the kandayam of these items'. (I have marked the paragraphs as A. B. C. D. and E for convenient reference).

11. In Ex. P-1 the Schedule II property, which was subject to litigation, has been given absolutely to the second wife Thimmakka. The Schedule III properties, which consist of three items, have been given absolutely to Naniamma. The Schedule IV properties which were subject to litigation, have been given absolutely to Sanieevachari.

12. The general principles governing the construction of a will, which apply equally to the construction of a settlement deed, are enunciated in : [1950]1SCR949 , (Gnambal Ammal v. Raju Ayyar), : [1961]3SCR955 , (Kasturi v. Ponnammal) and : AIR1963SC1703 , (Pearey Lal v. Rameshwar Das). Briefly stated, the Court should not impute its own standards of interpretation. It must put itself into the settler's arm-chair. All the parts of the settlement deed should be scrutinised in arriving at his intention. The various portions should be harmoniously construed so as to give effect to his real intention. The surrounding circumstances should be looked into, and they must be taken essentially from the recitals in the deed itself. As represented by Sri Savant, both the courts below, particularly the lower appellate Court, have borne the above principles in mind and have held against the plaintiff-appellant, the vendee from Sanjeevachari.

13. Paragraph (B) of Ex. P-1 give us a picture of the predicament in which the settler was placed and it provides the back around for the steps he took under Ex P-1. He was a very aged and frail man. with one foot in the grave and dragging the other into it. His second wife Thimmakka, being a woman, could not be expected to take an active part in the management of the properties. Their son Appayyachari was mentally retarded. The settler Venkataramanachari had divided himself from his son Hanumanthachari by his first wife Thimmakka. His normal son Venkatachari by his second wife Thimmakka, had died about 1 1/2 years prior to Exhibit P-1, and the settler had given his wife Venkatamma her share and sent her away. He appears to have pinned his hopes on his grandson Sanieevachari and directed him to maintain him (Venkataramanachari), his second wife Thimmakka and their mentally retarded son Appayyachari. during their life-time, pay the assessment of the two suit properties, and perform the obsequies of the three persons. This desire we find repeatedly expressed in paragraphs (C), (D) and (E) of Exhibit P-1. At the end of para (D) Sanieevachari is directed to take possession of another property which was the subject matter of a litigation, after the execution petition is disposed of. Even as regards that property the direction is that he will be the owner only after the life time of the three viz., Venkataramanachari, his second wife Thimmakka and their son Appayyachari.

14. Sanieevachari had to take immediate possession of the suit land and house described in paragraph (E) of Ex. P-1 immediately on the execution of the settlement deed. Obviously the settler Venkataramanachari, an illiterate villager. did not realise that the minority of Sanjeevachari was a hurdle since both in paragraph (D) and Schedule IV he was asked to take possession of the properties, which were subject to litigation, immediately on the conclusion of it.

15. The learned Civil Judge observes as below:

'.....It is significant that as per Ex. P-1 Thimmakka was not put in possession of the suit property. There is also no mention in Ex. P-1 that she should remain in possession and enjoyment of the suit properties as long as she is alive. If under such circumstances she has remained in exclusive possession of the suit house in O. S. No. 536 of 1960 and exercising rights of ownership paying assessment, and if she was also receiving wara produce from D. W. 1 in respect of the suit land in O. S. 535/60 paging assessment thereon and getting the Kath's transferred to her name and also executing the settlement deed as per Exhibit D-5, would clearly go to show that she was exercising rights of ownership openly and adversely to that of P. W. 1'. (D. W. 1 is the tenant Rudriah, and P. W. 1 is Sanieevachari). The learned Civil Judge also observes-- '.....In fact after the death of Venkataramanachari P. W. 1 has attempted to make out that he was in possession of the suit properties and he was exercising rights of ownership. P. W. 1 and his mother have executed a usufructuary mortgage deed dated 14-7-1943 in favour of his junior sister Venkateshamma. In Exhibit P-8 the suit properties are included. In Ex. P-8 in respect of the suit land it is stated that P. W. 1 got it from his grand-father Venkataramanachari and they are in possession. As submitted by P. W. 1, Venkateshamma was not in possession of the suit properties after Ex. P-8. P. W. 1 and her mother have also executed another hypothecation deed in favour of one Thimmakka dated 23-1-1947 as per Ex P-9. It is also admitted that in Ex. P-9 the suit schedule properties are included. From the conduct of P. W. 1 he was clearly aware that he should also take possession of the suit schedule properties x x x'.

16. The doctrine of adverse possession is applicable to the detriment of a person who is entitled to be in possession but is not in possession. It cannot be applied as against a person not competent to claim possession. In this case, immediately after the execution of the settlement deed Exhibit P-1. or at least after he attained majority in about 1943, Sanjeevachari was entitled and competent to take possession of the suit Properties; which he did not do; and Thimmakka and later Naniamma enjoyed them openly and adversely to him, though their right as per the terms of Exhibit P-l was confined to their lifetime only to get maintenance through Sanieevachari from the income of these ear-marked properties, he having also the additional obligations of performing their obsequies on their death and paying the assessment of the suit properties throughout.

17. The various rulings relied upon by Sri Setlur have no application to this case, as they all deal with life-estates and limited owners. In such cases adverse possession by such persons would prescribe against the full owner only for the duration of their lives. In the instant case, however, after the settlement deed Ex. P-1, we have in Venkataramanachari, the second wife Thimmakka, and their son Appayyachari mere maintenance holders during their lifetime from out of the income of the suit properties, Sanjeevachari being the person entitled to be in possession of them. In such a situation both the courts below rightly placed reliance on the decision in : AIR1959Bom504 (Sampat v. Surajmal) where Mudholkar, J., as he then was, after a discussion of the various rulings of the Privy Council and High Courts, observes that where a widow is only entitled to maintenance out of the estate her possession thereof or any part thereof would be adverse to the person who is in law entitled to it, unless it could be shown that possession was the result of an arrangement between him and the widow. In this context the learned Civil Judge states--

'.....In this case Thimmakka was entitled to only maintenance. There is nothing to show that her possession was the result of an agreement between P. W. 1 and Thimmakka. Further from the manner in which Thimmakka has exercised rights of ownership openly and adversely to that of P. W. 1 as referred to above, and D. W. 2 after the death of Thimmakka had exercised rights of ownership in respect of the suit properties adversely to that of P W. 1, it is clear that both of them have exercised rights of ownership adversely to that of P. W. 1 for over 12 years. Hence P. W. 1 has lost his title to the suit property'.

The lower appellate Court found correctly against the plaintiff on the point formulated for consideration, and upheld the decision of the trial court.

18. Both these Second Appeals cannot be sustained. They are dismissed with costs. Advocate's fee Rs. 50/-. one set.


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