1. The suit properties consisting of two houses bearing Door Nos. 4 and 5, South Hanumantharayar Koil Street, Erode, were purchased by one Karuppaswami Mudaliar, who died in 1944. The said Karuppuswami Mudaliar had two sons, Sivaraman and Samiappa. Sivaraman predeceased Karuppuswami in 1939 leaving his widow Karuppayee and three sons, Palaniappa, Shanmugham and Vyapuri. The other son Samiappa, the first defendant in the suit, married Kaveriammal as his first wife and through her he had a daughter Perianayaki alias Ghanambal, who is the second plaintiff in the suit, the first plaintiff being the husband of the said second plaintiff. Dhanalakshmi, the third defendant, is the second wife of Samiappa and the second defendant Sivaraman is the minor son of Samiappa through Dhanalakshmi. Karuppuswami Mudaliar executed a settlement deed Ex. A-2 dated 4-2-1940 in favour of Kaveriammal in respect of the suit properties and two other properties describing them as his self-acquired properties. He has mentioned in the settlement deed that as his son Samiappa was ill-treating him and not maintaining him, he had executed the settlement deed giving the suit properties and other properties absolutely to Kaveriammal, but subject to the condition that she should maintain him during his lifetime.
But even on 6-9-1940 Karuppuswami executed the cancellation deed, a registration copy of which has been marked as Ex. B-2, on the ground that he was not maintained properly and that he desired to have the earlier settlement deed Ex. A-2 revoked. Kaveriammal who had conveyed the properties under Ex. B-3 dated 17-6-1940 in favour of her maternal uncle Marimuthu Mudaliar got back the properties under the settlement deed Ex. B-5 on 26-5-1943. On 27-2-1956, she executed a settlement deed Ex. A-1 in favour of the plaintiffs, namely, her son-in-law and daughter. It is on the strength of this settlement deed the plaintiffs have filed the suit to recover Rs. 10,800 as damages for use and occupation for three years from 3-9-1956 to 3-9-1959, from the defendants. The plaintiffs did not sue for possession of the two houses on the ground that they had filed R. C. O. P. No. 116 of 1958 on the file of the District Munsifs Court, Erode against the tenant for possession.
2. The contention of the defendants is that the suit properties were not the separate properties of Karuppuswami Mudaliar, but were his joint family properties, that Karuppuswami Mudaliar had no right to execute the settlement deed in favour of Kaveriammal, that there was a partition between Samiappa and his nephews, that as Samiappa, was not mentally sound the suit properties were managed by the third defendant on behalf of her husband and her son Sivaraman by letting out to tenants and that the eviction proceedings taken by the plaintiffs against one Perianna Goundan as though he was a tenant are not valid. Even Kaveriammal had filed petitions for eviction in respect of houses bearing door Nos. 4 and 5 South Hanumantharayar Koil Street, Erode. Her eviction petition in respect of the house bearing Door No. 5 was dismissed hi H. R. C. No. 179 of 1949 on 8-4-1950 on the ground that she had no title to the property. Her petition for eviction in respect of the house bearing door No. 4 ended in her favour in, H. R. C. No. 10 of 1949. But her application for delivery in pursuance of the eviction order was not successful as she was obstructed by the third defendant and the petition filed by her for removal of obstruction and delivery was dismissed. The plaintiffs themselves filed R. C. O. P. No. 116 of 1958 against one Perianna Goundan treating him as a tenant in respect of premises No. 5 South Hanuman-tharayar Koil Street, Erode, and obtained an ex parte order of eviction and attempted to take delivery through Court, but they were obstructed by defendants 2 and 3. The petition filed by the plaintiffs for removal of obstruction and delivery was dismissed. The contention of the defendant is that the suit is not maintainable, not having been filed within the period of limitation specified in respect of orders made in execution proceedings.
3. The learned Subordinate Judge overruled the contentions of the defendants and decreed the suit for damages at the rate of Rs. 97/- per month. Defendants 2 and 3 have preferred Appeal No. 244 of 1961, and the first defendant has filed Appeal No. 572 of 1962 against the decree passed against them and the plaintiffs have filed a memorandum of cross-objections in Appeal No. 244 of 1961 claiming that the trial Court ought to have decreed Rs. 200/- per month as damages for use and occupation.
4. Sri M. S. Venkatarama Iyer appearing for defendants 2 and 3 urged three points before us, namely, that the suit properties are joint family properties of Karuppuswami Mudaliar and his sons, that even if Karuppuswami Mudaliar was absolutely entitled to the suit properties, the settlement deed Ex. A-2 has been validly revoked by Karuppuswami for non-fulfilment of the condition subsequent in the document and that the suit is not maintainable inasmuch as Kaveriammal and the plaintiffs have not filed suits within one year to set aside the summary orders made under Order XXI, Rule 99, C. P. C. as required under Order XXI, Rule 103, C. P. C. Sri M. S. Venkatarama Iyer also wanted to argue that the defendants had acquired title to the suit properties by adverse possession, but he was unable to point out any plea in the pleadings, or any issue, to justify his raising such an argument,
5. Sri M. S. Venkatarama Iyer appearing for defendants 2 and 3 referred to paragraph 12 of the judgment of the learned Subordinate Judge in which it is stated that the learned Advocate for the plaintiffs placed sole reliance on the recitals in the settlement deed Ex. A-2 that the suit properties are the self-acquired properties of Karuppuswami Mudaliar and criticised the finding of the Subordinate Judge that he was inclined to agree with the contention as there was no reason why Karuppuswamy Mudaliar should introduce false recitals in a document executed twenty years prior to the case. He urged, on the strength of the decision in Ramrati Kuer v. Dwarika Prasad, : 1SCR153 , that the statement in Ex. A-2 is not admissible, and in any case, no value should be attached to it.
In the said case, there was a recital in the gift deed of 1953 that the donor got the properties from her husband. It is not stated in that decision that the statement is inadmissible in evidence. Such statements are admissible under Section 13 of the Evidence Act, though the value to be attached to the statement would depend upon the facts and circumstances of each case. But the statement in the gift deed was held to be of no value in the above case as the donor, who was not alive at the time of the litigation, had made a statement several years earlier in 1925 that her husband predeceased her father-in-law, and that this earlier statement of 1925 was admissible under Section 32(3) of the Indian Evidence Act and it was entitled to great weight asit was made at a time when there was no trouble whatsoever in the family.
6. It is true that the statement of Karuppuswami in Ex. A-2 that the properties covered by it are his self-acquired properties is a self-serving statement and it is not possible to find solely on the strength of this statement that the properties covered by it were his self-acquired properties. But there are several other circumstances in this case which have been referred to by the learned Subordinate Judge in other portions of his judgment and they clearly support the recitals in Ex. A-2. Though Karuppa-swami executed Ex. A-2 in 1940, the first defendant did not protest or take any action in respect of the same. Kaveriammal filed O. S. No. 120 of 1945, on the file of the District Munsif's Court, Erode, against her husband Samiappa and Karuppayee, the brother's widow of Samiappa. Samiappa was insane at that time and he was represented by his brother's son Palaniappa in that suit.
Karuppayee was given up in that suit and Kaveriammal got an ex parte decree against her husband for Rs. 2,000/- being the value of the house covered by the settlement deed Ex. A-2 which was demolished and removed by her husband and Karuppayee. Thus, on the strength of the settlement deed, Kaveriammal got a decree against her husband, as evidenced by Ex. A-4. In execution of the decree, she attached certain amount in the Erode Urban Bank on the ground that the amount belonged to her husband. But the brother's sons of her husband filed a claim on the ground that in a partition between them and the first defendant herein, evidenced by a registered document dated 16-5-1946, the amount fell to their share. But it is clear from the order Ex. A-5 that the partition deed was brought about two months after the decree only with the intention to defraud the decree-holder Kaveriammal and at any rate, to delay the execution and realisation of the decree, and the claim was dismissed.
If really the properties covered by Ex. A-2 were joint family properties of Karuppuswami, it is unlikely that the brother's sons of the first defendant would have kept quiet. Subsequently, Kaveriammal filed O. S. No. 20 of 1947, on the file of the District Munsif's Court, Erode, against her husband Samiappa, her husband's brother's son Palaniappa and Karuppayee. It is true she exonerated Palaniappa and Karuppayee. But she got a decree against her husband Samiappa for arrears of rent in respect of the houses covered by Ex. A-2. The contention of defendants 2 and 3 that Samiappa was insane and was not represented by any guardian in O. S. No. 20 of 1947 has been rightly rejected by the learned Subordinate Judge.
There is nothing to show that Samiappa continued to be insane when the suit O. S. No. 20 of 1947 was instituted on the file of the District Munsif's Court, Erode, though he was no doubt, treated as insane at the time of the earlier suit.
In fact, according to defendants 2 and 3, there was registered partition deed dated 16-5-1946 between Samiappa and his brother's sons. It should be noted that the said registered partition was subsequent to the earlier suit O. S. No, 120 of 1945, on the file of the District Munsif's Court, Erode and prior to O. S. No. 20 of 1947, on the file of the same Court. Apart from these proceedings, there is one other strong circumstance, which clearly supports the case of the plaintiffs. Samiappa was arrested and sent to civil Jail in execution of the decree obtained by his first wife Kaveri-ammal. But his second wife Danalaksh-mi Ammal, her brothers and her father joined together and told Samiappa that they would not give a single pie to Kaveriammal and that he might go to jail. The grievance of Samiappa was that his second wife Danalakshmi Ammal did not help him, though she was in possession of his properties and the properties covered by the settlement deed. Samiappa filed a counter, Ex. A-11, in the claim petition by his second wife Danalakshmi Ammal mentioning the above facts and admitting that he had to pay the arrears of rent in respect of the house properties covered by the settlement deed executed by his father in 1940, to his first wife Kaveriammal.
It should be noted that the third defendant Danalakshmi Ammal claims to be in possession of the suit properties only on behalf of her husband Samiappa. Hence in the face of the admission of Samiappa in Ex. A-11, the third defendant cannot claim the suit properties on his behalf. It is true that it is open to the second defendant as the grandson of Karuppuswami Mudaliar to put forward a claim that the suit properties are joint family properties. But the suit properties were really purchased by Karuppuswami. Mr. M. S. Venkatarama Iyer urged that the suit properties were purchased from out of the income of the Press run in the name of Sivaraman. The mere fact that Karuppuswami conducted a Press in the name of hisN eldest son Sivaraman would not make the Press a joint family property. In fact, the evidence of Danalakshmi Ammal is that the Press belonged to Karuppuswami. Thus the above facts clearly justify the conclusion of the learned Subordinate Judge that the suit properties are the self-acquired properties of Karuppuswami and that he was competent to execute the settlement deed Ex. A-2.
7. There is no substance in the contention that the settlement deed Ex. A-2 was executed by Karuppuswami in favour of Kaveriammal on condition that she should maintain him and hence Karuppuswami was entitled to revoke the settlement deed on the failure of Kaveriammal to maintain him. Under Ex. A-2 Karuppuswami Mudaliar has given absolute interest in the properties covered by it to Kaveriammal. It is true one of the terms of the settlement deed is that Kaveriammal should maintain Karuppuswami during his lifetime. But there is no power of revocation in the settlement deed Ex. A-2. Whatever cause of action Karuppuswami might have had to recover maintenance from Kaveriammal, he had no right to cancel the settlement deed Ex. A-2. Hence the revocation of the settlement deed by Karuppuswami is invalid. The third and last contention urged by Sri M. S. Venkatarama Iyer is a substantial one and, in our opinion, it has to be accepted. Under Order XXI, Rule 103, C. P. C.
'Any party not being a judgment-debtor against whom an order is made under Rule 98, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property, but, subject to the result of such suit (if any), the order shall be conclusive.'
Kaveriammal did not file a suit within one year after the order Ex. B-80 when her application to remove the obstruction caused by the third defendant, Danalakshmi Ammal, and deliver the house bearing door No. 4, South Hanumantharayar Koil Street, Erode, in pursuance of the order in H. R. C. No. 10 of 1949 on the file of the District Munsif's Court, Erode, was dismissed. Instead of taking steps to vacate the order, Kaveriammal merely settled the properties in favour of her daughter and son-in-law. Even the plaintiffs (who claim under Kaveriammal) filed an eviction petition against one Perianna Goundan treating him as a tenant in the premises No. 5, South Hanumantharayar Koil Street, Erode, and got an ex parte order for eviction in R. C. O. P. No. 116 of 1958, on the file of the District Munsif's Court, Erode; they were obstructed by defendants Nos. 2 and 3, when they attempted to take delivery of the house in execution of the order of eviction, and their application for removal of obstruction and delivery was dismissed. The plaintiffs did not file a suit within one year as required under Order XXI, Rule 103, C. P. C. They, however, relied on the fact that the present suit was pending at the time when the order Ex. B-78 was passed.
8. In Seethamma v. Kotareddi : (1949)1MLJ593 , a Full Bench of this High Court has heldthat the provisions of Order XXI, Rule 63, C. P. C. are mandatory and the decision in a claim petition is final unless the party aggrieved takes the course indicated in the rule, by instituting a suit to supersede it within a year. It has been further field that the specific provisions of Order XXI, Rule 63, override the more general principle enunciated in Section 11, C. P. C. In that case, the decree-holder in O. S. No. 527 of 1930, on the file of the District Munsif's Court, Ellore, attached certain properties and brought them to sale. But the mother of the judgment-debtor preferred a claim in respect of some of the properties on the ground that she had obtained a maintenance decree with a charge over those properties. But even four days prior to the claim petition filed by the mother of the judgment-debtor, the decree-holder filed O. S. No. 231 of 1936, on the file of the District Munsif's Court, Ellore, representing the general body of creditors for a declaration that the charge decree obtained by the mother of the judgment-debtor was collusive and not binding on the creditors and that the property already purchased was not liable for her maintenance. The claim petition was dismissed on the representation of the decree-holder that he had already filed the original suit, O. S. No. 231 of 1936, on the file of the District Munsif's Court, Ellore. The mother of the judgment-debtor succeeded in establishing the validity of her charge decree when O. S. No. 231 of 1936 went up to the High Court. But when she filed an execution application for enforcing the maintenance decree, the auction-purchasers filed O. S. No. 91 of 1943 for a declaration that she cannot execute her decree as she had not filed a suit within one year for setting aside the order dismissing her claim, and this contention was accepted by the Full Bench.
9. In Kaleswar Mills Ltd. v. Govindaswami, ILR 1946 Mad 536 AIR 1946 Mad 76 the decision in Akkammal v. Komaraswamv Chetty : AIR1943Mad36 affirmed later in the above Full Bench was followed and it was held that the claim in that suit was barred as against the obstructors by reason of the provisions of Order XXI, Rule 103. C. P. C. It was pointed out in this decision that though, the Division Bench case in : AIR1943Mad36 dealt with the effect of Order XXI, Rule 63, C. P. C. on principle, what was laid down in that Bench decision would also govern the case under consideration as the procedure indicated by the Code is the same, and Order XXI, Rule 103, C. P. C. corresponds to Order XXI, Rule 63, C. P. C.
10. Two earlier single Judge's decisions of this Court, taking a contraryview, were not referred to, or discussed, in the Full Bench decision. In Palaniappa v. Ramaswami, AIR 1937 Mad 582, Venkataramana Rao, J., has held that the institution of a suit under Order XXI, Rule 103, a P. C. is not the only remedy against the order under Order XXI, Rule 98. C. P. C., and that the rule only contemplates the establishment of a right to the property to supersede the order. Ha has held that if such a right is established within a year, the order must be held to have been superseded and that it is not necessary to institute a suit within one year. He observed that the policy underlying Order XXI, Rule 103. C. P. C. is to have a speedy settlement of the questions of title raised in execution sales and that what makes the order conclusive under Order XXI, Rule 103, is not the failure to institute a suit, but the failure to have the right established.
In Umanath v. Pedru Souza, : AIR1950Mad19 , Govindarajachari, J., has relied on the above decision of Venkataramana Rao, J., and held that where a suit or an appeal already filed by the claimant is pending at the time when an order under Order XXI, Rule 98, C. P. C. dismissing his claim is made, it is not obligatory on his part to file another suit under Order XXI, Rule 103, C. P, C. within one year of the order under Order XXI, R. 98, C. P. C. and that in such a case, the order is subject to the decision in the suit or appeal pending at the time. But these decisions should be deemed to have been overruled by the Full Bench decision, which has considered the principles governing the question. There is nothing in Order XXI. Rule 103, C. P. C. to show that it requires an unsuccessful party only to establish his right within a year. It only requires that the unsuccessful party should file a suit within a year to establish the right claimed.
11. Sri T. R. Srinivasan, appearing for the plaintiffs, brought to our notice the decision in Gopiram v. Sewantilal, : AIR1960Cal580 , which relied on the above decisions in AIR 1937 Mad 582 and : AIR1950Mad19 and distinguished the decision in Abdul Rahim Rowther v. Swaminatha Odayar, (1955) 1 MLJ 322 AIR 1956 Mad 19, which followed the Full Bench decision in : (1949)1MLJ593 , and held that a suit to set aside a summary order under Order XXI, Rule 103, C. P, C. was maintainable in spite of the fact that there was a pending suit for the same relief when the summary order was passed. It has been held in the above Calcutta decision that if a competent Court gives a decision in a pending suit within a year of the passing of the summary order, the decision must be accepted as valid because the time-limit for challenging the summary order has notyet run out and the party in whose favour the order is made in the summary proceeding cannot get any advantage of it, the summary order not having attained finality.
Having regard to the Full Bench dedsion, the above Calcutta decision cannot be accepted. Further, the reasons given in the Calcutta decision to distinguish the decision in (1955) 1 MLJ 322 AIR 1956 Mad 19 are hardly convincing and several anomalies would arise if the principle of that decision is followed. The terms of Order XXI, Rule 103. C, P. C. are quite clear that the summary order is conclusive subject to the result of a suit filed within a year. It would be adding to the rule to state that the summary order would be conclusive subject to the result of a pending suit, if a decision of competent Court in a pending suit is obtained within one year.
Order XXI. Rule 103 does not at all refer to the necessity of obtaining a decree of a court within one year, as what all it requires is the filing of a suit within one year. It was held in the Calcutta decision that the summary order was superseded by the decree passed by the trial court in a pending suit within a year. But it does not state as what would happen if the decree of the trial Court is taken up in appeal, or second appeal, and If the summary order is relied on by the other party, as in the case before us, and In other cases in which the principle of the Full Bench decision had been applied.
The Calcutta decision would lead to the anomalous result that a party who gets a decree in a pending suit within 356 days in an ordinary year and 368 days in a leap year could rely on that decision to supersede the summary order, but he would fail if he obtains such a decree even one day late through no fault on his part. It is a well-known principle that an act of Court shall prejudice no man, based on the maxim actus curiae neminem gravabit. Hence a person who has obtained a decision in a pending suit even after one year can legitimately contend that the delay in obtaining the decision was due to no fault on his part, but due to the delay on the part of the Court in making the decision and hence the decision in the pending suit, though made after an year of the summary order, would supersede the summary order.
We are, therefore, unable to accept the principle of the Calcutta decision following the decisions of single Judges of this Court, which are contrary to the Full Bench decision, which affirmed the earlier Bench decision in : AIR1943Mad36 . Hence the fact that the plaintiffs had obtained a deci-sion in their favour in the lower Court in a suit which was pending at the time when the summary order was passed, cannot affect the applicability of the principle of the Full Bench decision to the facts of this case. The orders, Exs. B-78 and B-80, have become conclusive by reason of the failure on the part of the plaintiffs, and their predecessor-in-title Kaveriammal, to file appropriate suits within one year.
12. Sri T. R. Srinivasan, appearing for the plaintiffs, urged that the third defendant Danalakshmi Animal did not set up title in herself, but only that of the joint family of her husband, that as Samiappa was not a party to the summary orders, they would not bind him and that the summary orders could not affect the rights of the defendants. It is true as pointed out in Venkata Ramiah Chetty v. Chinna Pulliah. : AIR1950Mad41 the decision under Order XXI, Rule 103, G P. C. becomes conclusive only as between the parties, unless displaced by the result of a suit to he instituted by the party against whom the order is made within a period of one year, and that persons who are not parties to the summary order cannot be affected by the order. It is clear from the summary orders in this case that the Court found that the third defendant Danalakshmi Animal was in possession of the suit properties not on her own account, but on account of the joint family of her husband and son. The summary orders negatived the claim of the plaintiffs that they are entitled to possession by virtue of the settlement deed relied on by them, which proceeded on the basis that the properties are the self-acquired properties of Karuppuswami.
If the orders, Exs. B-78 and B-80, have become conclusive as against the plaintiffs only so far as the parties, namely, defendants 2 and 3, are concerned, the plaintiffs can have no relief by way of damages for use and occupation as against them. It is true that the first defendant was not a party to the summary orders and they will not bind him. But for the prior litigations, the plaintiffs can have no remedy as against the first defendant, even if the summary orders are not conclusive, as they can be taken as pieces of evidence which negatived the basis of the plaintiffs' claim.
13. The plaintiffs obtained an eviction order on the ground that Perianna Goundan was their tenant and they filed an application under Order XXI, Rule 97, C. P. C. only to remove the obstruction caused by Danalakshmi Animal. But the averments in the plaint filed earlier are totally different and contradictory. It is stated in the plaint that Kaveriammal executed a settlement deed in favour of the plaintiffs and put them in possessionof the properties covered by the document and that defendants 2 and 3, at the instigation of the first defendant or of their own accord, assaulted the plaintiffs and trespassed into the suit houses, The second defendant is a minor. It is stated that the third defendant acted on behalf of the second defendant.
Thus even according to the averments in the plaint, it is defendants 2 and 3 who are in wrongful possession of the two houses bearing door Nps. 4 and 5, South Hanumantharayar Koil Street, Erode, We have already referred to the fact that in spite of the adverse order Ex. B-78 Kaveriammal did not file a suit within one year to set aside the order, but executed the settlement deed, Ex. A-1, in favour of the plaintiffs. In his evidence the second plaintiff stated that he took possession of the suit properties ten or fifteen days after Ex. A-l, but the defendants beat him and threw him out of possession. The present suit is not for a declaration of title and possession of the suit properties, but only for damages for use and occupation for the period 3-9-1956 to 3-9-1959. Thus the plaintiffs have no consistent case whether they were in possession of the suit houses through tenants, or whether the defendants, or defendants 2 and 3 alone are in unlawful possession of the same. We have already referred to the counter-affidavit Ex. A-11 filed by Samiappa in E. A. No. 1193 of 1957 in E. P. R. No. 1879 of 1957 in O. S. Mo. 20 of 1947 stating that his wife Danalakshmi Ammal, with the help of her brothers and father, took all the immoveable properties and sent him to jail.
Thus, there is no satisfactory evidence that the first defendant Samiappa had possession of the suit properties. There can be no doubt that the third defendant alone had possession of the suit properties and she claimed that she was in such possession on behalf of the joint family of her husband and son and this claim has been upheld by the District Munsif'e Court, Erode, in the two summary orders, Exs. B-78 and B-80, The plaintiffs cannot, therefore, claim any damages for use and occupation from any of the defendants, as the first defendant has not been proved to have been in occupation of the suit properties and the possession of the third defendant was on behalf of the joint family of her husband and son. It is unnecessary to express any opinion in this appeal as to how far the orders Exs. B-78 and B-80 could be used against the first defendant in a regular suit for title and possession, having regard to the decisions in the prior suits, O. S. No. 120 of 1945 and O. S. No. 20 of 1947, on the file of the District Munsif's Court, Erode, inasmuch as the first defendant was not a party to the summary orders.
14. In the result, Appeal No. 244 at1961 is allowed with costs and the suitfiled by the plaintiffs is dismissed withcosts. Counsel's fee one set, The otherappeal filed by the first defendant. AppealNo. 572 of 1962, is also allowed, but without costs. The memorandum of objectionsfiled by the plaintiffs in forma pauperisfor a larger amount of damages necessarily fails and is dismissed, but in thecircumstances we make no order as tocosts. The plaintiffs should pay theCourt-fee due to Government in the suitand in the cross objections.