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Bagiyathachi Vs. Narayanaswami Chettiar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1929Mad741; 122Ind.Cas.797
AppellantBagiyathachi
RespondentNarayanaswami Chettiar and ors.
Cases ReferredKumarappan Chettiar v. Narayana Chettiar
Excerpt:
.....exception of the house) in favour of such of her younger sister's sons as she might take as her abhimana putra, before her death. as your are supporting me agreeably to my wishes, and also on account of the affection i have for you, i have taken you, my sister's son, as my abhimana putra pursuant to the will of my deceased brother-in-law thiyagu chettiar where by i have been given 10 mahs of land to be enjoyed by me during my life time, and also empowered to take one among my sister's sons as abhimana putra. as i have affection for you and as you are to protect me and perform my funeral ceremonies when i die, i hereby give you the properties mentioned in the schedule hereto annexed you shall own and enjoy the said properties with all rights of gift, sale etc. ' paragraph 7(2) of the..........under the will ex. d, executed in her favour by her brother-in-law thiyagu chettiar. alagu achi executed ex. a settlement deed in favour of defendant 1 and the plaintiff claims the properties under an othiusufructuary mortgage-for a term, executed by defendant 1 in plaintiff's favour. defendant 3 is the real contesting defendant. his case is that he is entitled to the properties and not defendant 1.2. the district munsif decreed the suit in plaintiff's favour for possession of these items. on appeal by defendant 3, the learned subordinate judge modified the decree of the district munsif and decreed that:the plaintiff do recover half of items 1 to 3 after dividing the same with due regard to good and bad quality.3. the plaintiff has preferred this second appeal while defendant 3.....
Judgment:

Ananthakrishna Ayyar, J.

1. This second appeal relates to three items of properties which originally belonged to one Thiyagu Chettiar. Alagu Achi got the properties under the will Ex. D, executed in her favour by her brother-in-law Thiyagu Chettiar. Alagu Achi executed Ex. A settlement deed in favour of defendant 1 and the plaintiff claims the properties under an othiusufructuary mortgage-for a term, executed by defendant 1 in plaintiff's favour. Defendant 3 is the real contesting defendant. His case is that he is entitled to the properties and not defendant 1.

2. The District Munsif decreed the suit in plaintiff's favour for possession of these items. On appeal by defendant 3, the learned Subordinate Judge modified the decree of the District Munsif and decreed that:

the plaintiff do recover half of items 1 to 3 after dividing the same with due regard to good and bad quality.

3. The plaintiff has preferred this second appeal while defendant 3 has preferred the memorandum of objections, each claiming the whole of these items.

4. Before proceeding further, if is necessary to refer to the provisions of the will Ex. D of Thiyagu Chettiar, and of the settlement deed Ex. A, executed by Alagu Achi. In Ex. D, it is mentioned that:

Alagu Achi, the widow of my deceased younger brother Somu Chettiar shall take the northern half of the house aforesaid and 10 mahs of land to be enjoyed by her during her life time and to be disposed of by her as she thinks fit (with the exception of the house) in favour of such of her younger sister's sons as she might take as her Abhimana Putra, before her death.

5. Alagu Achi executed the settlement deed Ex. A ' in favour of Vaidiyalinga Chettiar' defendant 1. Ex. A reads as follows:

As your are supporting me agreeably to my wishes, and also on account of the affection I have for you, I have taken you, my sister's son, as my Abhimana Putra pursuant to the will of my deceased brother-in-law Thiyagu Chettiar where by I have been given 10 mahs of land to be enjoyed by me during my life time, and also empowered to take one among my sister's sons as Abhimana Putra. As I have taken you as Abhimana Putra and: as I have affection for you and as you are to protect me and perform my funeral ceremonies when I die, I hereby give you the properties mentioned in the schedule hereto annexed You shall own and enjoy the said properties with all rights of gift, sale etc., I have put you in possession of the said properties and you shall pay the Sircar Kist. To this effect I have executed this settlement dead while I am in sound state and out of my free will.

6. Defendant 3, who is the younger brother of defendant 1, contended that he himself was brought up as her fosterson, that the draft of the settlement deed first contained his name, and) that he was in enjoyment of the properties all along. Issue 1 raised in the case was.

whether the settlement deed executed by Alagu Achi was really for the benefit of defendant 3.

7. The District Munsif found the issue for the plaintiff. The District Munsif said:

The document Ex. A, it is to be remembered, was executed in defendant l's house. It is also admitted that the old woman died there and defendant 1 it was that performed her obsequies which it should be noted is in accordance with the direction in Ex. A.

8. On appeal, the learned Subordinate Judge observed as follows:

This is a rather curious case where both parties have hidden the truth which lies midway between their extreme contentions and; which Courts are not debarred from finding and enforcing simply because the pleadings-have been cleverly devised to hide the truth.

He was of opinion that ' both sides are hiding the truth.' Paragraph 7(2) of the learned Subordinate Judge's judgment was relied upon by the learned advocate for defendant 3. It is better that I quote the same.

I have no doubt whatever in my mind that Alagu Achi originally had a draft of the settlement deed in defendant 3's name, and that she did so, so that the properties might belong to both defendants 1 and 3. If the, settlement dead stood in younger brother's (defendant 3's) name, he might set up an exclusive claim to the properties. So, she had Ex. A in defendant l's name. She had the pattah in her name till she died. Though. Ex. A says that she treated defendant 1 as. her Abhimana Putra and that he should protect her and perform her funeral obsequies, yet she never lived with him except occasionally. She lived with defendant 3; or rather defendant 3 lived with her.

9. In para. 8 the learned Subordinate Judge says.

I find on the 1st point that the settlement deed by Alagu Achi Ex. A was for the benefit of both defendants 1 and 3.

10. The learned Subordinate Judge accordingly decreed one halt of the properties to defendant 3 and the other half to the plaintiff as representing defendant 1.

11. As might be expected both the parties are dissatisfied with the decision of the learned Subordinate Judge-the plaintiff has preferred the second appeal claiming the other moiety also, and defendant 3 has preferred a memorandum of objections claiming for himself the other moiety also of the suit properties.

12. In my view, the question has to be decided according to the tenor of Ex. A. Exhibit A is, to my mind, very clear. It states : ' I have taken you (defendant 1) as my abhimana putra. ' It cannot be contended that under Ex. A defendant 3 has been taken as abhimana putra. His name is not in the document, and the document specifically and in express terms says that defendant 1 has been taken as Alagu Achi's abhimana putra, Again Ex. A recites that, under the will of Thiyagu Chettiar Alagu Achi was given ten mahs of land and also 'empowered to take one among her sister's sons as abhimana putra.' Defendants 1 and 3 are brothers and are sons of Alagu Achi's sister. She could take any one of them as her abhimana putra and she took defendant 1 as such. Exhibit A in two places specifically says : ' I have taken you (defendant 1) as my abhimana putra. ' In the face of the express wordings of this document it is, to my mind, difficult to contead that defendant 1 was not taken as Abhimana putra by Alagu Achi, but that defendant 3 was. Further the subsequent clause in the document leaves the matter absolutely beyond any doubt. It states:

As I have taken you as Abhimana putra and as I have affection for you and as you are to protect me and perform my funeral ceremonies when I die, I hereby give you the properties mentioned in the schedule. You shall own and enjoy the said properties with all rights of gift sale, etc. I have put you in possession of the properties and you shall pay the sircar kist. To this effect I have executed the settlement deed.

13. I do not consider it necessary to dilate more on this matter. The provision in Ex. A, that defendant 1 should perform Alagu Achi's funeral ceremonies if she dies is very significant. Having regard to the terms and provisions of the document, I am clear that defendant 1 was taken as Abhimana putra by Alagu Achi and that he was given the suit properties. I am not able to appreciate the contention of defendant 3 that the ' defendant's name was put in Ex. A, benami for him (defendant 3).' I must here note that it is not the plea of defendant 3 that the name of defendant 1 was inserted in Ex. A by any fraud or mistake.

14. In this view, I do not consider it necessary to consider who was in actual possession of the properties after the death of Alagu Achi in 1920, who paid the revenue of the properties and with whom Alagu Achi was living before her death. The learned Subordinate Judge mentions in sub-paras. 3 and 4 of para. 7 of his judgment a few facts which he mentions as ' decisive ' facts ' in the case.' A very important fact is Alagu Achi went to the house of defendant 1 a few days before her death and died in his house, (b) ' Ex. A is produced by the plaintiff.' Ex. A was with defendant I all along. It is admitted that defendant 1 performed Alagu Achi's obsequies. Alagu Achi was living sometimes with defendant 1 and sometimes with defendant 3. Surely these circumstances go in confirmation of defendant 1's title. Finally I am not able to find any statement in the learned Subordinate Judge's judgment that defendant 3 was taken or treated as Abhimana putra by Alagu Achi.

15. I am, therefore, of opinion that defendant 1 is the owner of the properties under Ex. A, and the plaintiff as the ottidar from defendant 1 is entitled to recover possession.

16. A new point was Bought to be argue 1 in second appeal on behalf of defendant 3 by his learned advocate, namely, that the othi deed Ex. C executed by defendant in favour of the plaintiff is not supported by consideration and that the plaintiff is, therefore, not entitled to recover possession of the properties. He contended that the point was raised in para. 4 of the written statement of defendant 3. wherein it is stated

with a view to cause loss to me, he (defendant 1) has fraudulently and nominally created an othi deed in the name of the plaintiff. No amount has to be paid towards the said othi.

17. No issue has been taken on the point, nor do I find any reference to the same in either of the judgments of the lower Courts. Defendant 1 did not appear in the suit. The othi is for a term of years, and defendant 3 is according to the finding an utter stranger. I felt that I could not in the circumstances allow the point to be argued for the first time in the memorandum of objections filed by defendant 3 in the second appeal, even if he could otherwise take such a point at the proper time. I, therefore, do not propose to go into the cases quoted by the learned advocate for defendant 3 where it was held that in a suit to recover money alleged to be due on a hypothecation bond by the sale of the hypothecated properties, the plaintiff hypothecate is bound to prove consideration for the hypothecation bond as against defendants other than the mortgagor : Kumarappan Chettiar v. Narayana Chettiar [1916] 35 I.C. 455.

18. In my judgment, the decision of the lower appellate Court has to be reversed and that of the first Court restored. The appellant-plaintiff will get from defendant 3 costs in the High Court and in the lower appellate Court. The memorandum of objections is dismissed. No leave to appeal.


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