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Ramanathan Ambalam and anr. Vs. Shanmugavel Pillai - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Reported in(1977)1MLJ168
AppellantRamanathan Ambalam and anr.
RespondentShanmugavel Pillai
Cases ReferredHae v. S.C. Board of Waqf
Excerpt:
- - , so that for the purpose of continuity, the facts as related by the learned judge, which are not in dispute before us, may be taken as representing the correct position in relation to the relationship as well as the rights inter se as between the parties. 350 of 1958, upholding the plaintiff's adoption is clearly binding on the first defendant as also the alienees who claim under her, and that even otherwise, the plaintiff's adoption has been duly established by the evidence in this case. kesava iyengar, that though in the plaint reliefs of declaration and the validity of adoption as also recovery of possession of the items in the hands of the first defendant have been claimed, the plaintiff failed to get those reliefs as against the first defendant in a. 57 of 1948, clearly shows.....ramaprasada rao, j.1. on leave granted by ramanujam, j., these letters patent appeals are before us. the appellants in l.p.a no. 30 of 1973 are defendants 2 and 12 in the original suit, who are the alienees of certain properties which constituted the subject-matter of that suit. appellant in l.p.a. no. 38 of 1974, is the plaintiff in that .suit. it will be convenient to extract the full judgment of ramanujam, j., which is very analystical and explanatory as regards facts of the case which go back to nearly four decades before. in order to avoid repetition and waste of judicial time we thought it fit to incorporate in our judgment the judgment of ramanujam, j., so that for the purpose of continuity, the facts as related by the learned judge, which are not in dispute before us, may be taken.....
Judgment:

Ramaprasada Rao, J.

1. On leave granted by Ramanujam, J., these Letters Patent Appeals are before us. The appellants in L.P.A No. 30 of 1973 are defendants 2 and 12 in the original suit, who are the alienees of certain properties which constituted the subject-matter of that suit. Appellant in L.P.A. No. 38 of 1974, is the plaintiff in that .suit. It will be convenient to extract the full judgment of Ramanujam, J., which is very analystical and explanatory as regards facts of the case which go back to nearly four decades before. In order to avoid repetition and waste of judicial time we thought it fit to incorporate in our judgment the judgment of Ramanujam, J., so that for the purpose of continuity, the facts as related by the learned Judge, which are not in dispute before us, may be taken as representing the correct position in relation to the relationship as well as the rights inter se as between the parties. The judgment of Ramanujam, J. runs as follows:

These two second appeals arise out of a common judgment, the first one by defendants 2 and 12 and the second one by the legal representative of the third defendant in the same suit O.S.No. 183 of 1965 on the file of the sub-Court, Madurai. The suit is one for recovery of possession of the suit properties from the various defendants with future mesne profits. The plaintiff's case is this: The suit properties originally belonged to one Ramaswami Pillai, who died on 1st January, 1920 leaving behind him only his two widows, Kuppammal and Chinnathayammal. Kuppammal died in 1934. Chinnathayammal, the first defendant had a daughter Chokkayee who also died in the year 1936 without any issue. On 15th July, 1937 the first defendant adopted the plaintiff as the son of her husband, late Ramaswami Pillai. As the relations of the late Ramaswami Pillai and his widows had alienated most of the properties the plaintiff filed an earlier suit, O.S.No. 57 of 1948 for recovery of possession of the properties in the hands of the first defendant and of the alienees. The said suit was dismissed by the trial Court on the ground that the adoption of the plaintiff was invalid. There Was an appeal, A.S.No. 350 of 1958 before this Court wherein the adoption of the plaintiff was upheld and the non-binding character of the alienations by various persons in respect of properties covered by that suit was declared. But during the pendency of the said suit the first defendant had alienated the properties in this suit in favour of defendants 2 to 11. The alienees having had full knowledge of the said suit, the alienations cannot bind the plaintiff and there was no necessity for the first-defendant to alienate any of the properties as there was sufficient income from the properties for her maintenance and other expenses. On these averments the plaintiff sought recovery of possession from defendants 2 to 11.

2. The first defendant filed a written statement fully supporting the case of the plaintiff. The second defendant contended that he had purchased suit items 1 and 2 of an aggregate extent of 8 acres 5 cents comprised in survey No. 173 from the first defendant under Exhibit B-24, dated 31st August, 1962 and P-25 dated 18th March, 1964 for a total consideration of Rs. 20,760 and that these purchases will not be affected by the proceedings in O.S.No. 57 of 1948, that the plaintiff was not the adopted son of late Ramaswami Pillai, that the plaintiff cannot question the alienations made by the first defendant in his favour, that the decision in O.S.No. 57 of 1948 was not binding on him, he not being a party to that suit, and that the plaintiff not having been given any relief in the earlier suit in respect of the properties then held by the first defendant, his claim in the present suit was barred by res judicata and that in any event, the suit is barred by limitation.

3. Defendants 3 and 12 also raised practically the same defence. The third defendant had purchased items 3 to 8 of A schedule under Exhibit P-11, dated 6th August, 1959 from the first defendant. The 12th defendant is a transferee from the 2nd defendant under a release deed Exhibit B-77, dated 10th June, 1955. We are not concerned with the defence put forward by the other alienees, in these appeals.

4. The trial Court upheld tie defence put forward by defendants 2, 3 and 12 and dismissed the suit. It held that the plaintiff was not the adopted son of Ramaswami Pillai, that in any event the suit is barred by res judicata under Section 11 of the Civil Procedure Code, that the alienations in favour of the second and third defendants are valid and binding on the plaintiff, that the plaintiff is estopped from claiming title to the suit properties, he not having obtained any relief in respect of the properties, in the earlier suit and that in any event the first defendant would be entitled to a half share in the properties by virtue of Section 14 of the Hindu Succession Act of J956 and, therefore, the plaintiff cannot claim any relief in relation to the properties. The trial Court however held that the suit is not barred by limitation as the alienations in question were within 12 years prior to the filing of the suit.

5. The plaintiff appealed against the dismissal of his suit. The lower appellate Court held that the decision of this Court in A.S.No. 350 of 1958, upholding the plaintiff's adoption is clearly binding on the first defendant as also the alienees who claim under her, and that even otherwise, the plaintiff's adoption has been duly established by the evidence in this case. On the question whether the plaintiff's claim is barred by res judicata by reason of the decision in A.S.No. 250 of 1958, it held that the plaintiff is not prevented from claiming recovery of possession of the suit properties in the suit as the said decision would not operate as res judicata against him. On the question as to whether the suit is barred by limitation it took the view that as the impugned alienations were within 12 years prior to the suit, the plaintiff's suit was within time as regards the items alienated in favour of defendants 2 and 3. On the question as to whether the alienations in favour of defendants 2 and 3 are for purposes binding on the plaintiff, the lower appellate Court has not expressed any view though it held that as soon as the plaintiff had been adopted to Ramaswami Pillai the widow's estate in the hands of the first defendant stood divested and she became entitled only to maintenance out of her husband's properties and that therefore she had no power to make an alienation of her husband's properties. It also expressed the view that since the first defendant was entitled only to maintenance after the adoption of the plaintiff, Section 14 (1) of the Hindu Succession Act cannot come into play. In that view the lower appellate Court decreed the suit for recovery of possession as against defendants 2, 3 and 12 and some other alienees.

6. Before dealing with the rival contentions put forward by the learned Counsel on either side, it is necessary to set out a few facts relating to the items in dispute. These items along with other properties were originally owned by one Shanmuga Velayutham. He had four sons by name Perumah Vallaisami, Ramaswami and Manickam. Perumal died issueless. Vallaisami died leaving behind him only his widow Meenakshi. Ramaswami died in the year 1920 leaving behind him his two widows Kuppammal and Chinnathayammal. Manickam died leaving behind him his widow Shanmugathammal and a daughter Nagammal. Ramaswami who was the sole surviving co-parcener of the family died in 1920. His two widows Kuppammal and Chinnathayammal became entitled to his properties and Meenakshi the widow of Vallaiswami and the widow of Manickam were merely maintenance holders. There was a partition arrangement under Exhibit B-78 dated 11th July. 1921 between the ladies by which A schedule properties therein were allotted to Kuppammal and Chinnathayammal, the widows of Ramaswami and B schedule properties were allotted to Meenakshi Ammal and C schedule properties to Shanmughathammal and D schedule to Nagammal, E. schedule properties having been kept in common between the parties. Kuppammal died on 27th June, 1934 and therefore her interest in the A schedule properties devolved on her co-widow the first defendant; Thereafter the first defendant is said to have adopted the plaintiff on 15th July, 1937 under an adoption deed Exhibit A-14. Shanmughathammal died in 1942 and on her death the property given to her under Exhibit B-78 has to revert to the first defendant. But Shanmugathammal's daughter Nagammal would not allow the first defendant to take possession of the properties. The first defendant as guardian of her adopted son, the plaintiff, therefore, filed O.S.No. 37 of 1943 against Nagammal and the said suit was decreed; In pursuance of the said decree the first defendant took delivery of the properties through Court in 1947. In the said suit the question of adoption of the plaintiff was not considered. It is in the light of the above admitted facts the rival contentions have to be considered.

7. Mr. Kesava Jyengar, for the appellant contends; (l) that the dismissal of the suit O.S. No. 57 of 1948, as against the first defendant should be taken to bar the present claims of the plaintiff as adopted son for recovery of the properties from the appellants who only claim through the first defendant by virtue of Exptanation V to Section 11, Civil Procedure Code, and therefore the plaintiff cannot seek any relief against the appellants who are the alienees from the first defendant; (2) that in any event there is absolutely no materials adduced in the case by the plaintiff in proof of the alleged adoption and that the lower appellate Court was in error in upholding the validity of the adoption; (3) that irrespective of the question of adoption the items of properties ,in question which were taken possession of by the first defendant after the death of Shanmugathammal as limited owner should be taken to have become her absolute property in view of Section 14 (1) of the Hindu Succession Act of 1956 and that the operation of the said section comes into play in view of the fact that declaration of plaintiff's adoption has not been made in A.S.No. 350 of 1958 as against the first defendant; (4) that the plaintiff is estopped from contending that the first defendant had no right to convey the items of properties in question to the appellants in view of the fact that the plaintiff himself was present during the negotiations for. sale of these items and in fact he had the benefit of the sale price; (5) that the principle of Section 41 of the Transfer of Property Act, stands attracted to the facts of this case and therefore, the plaintiff cannot question the sales in favour of the appellants; (6) in any event the alienations made by the first defendant in respect of these items in question were only for necessity ; and (7) that in any event the suit is barred by limitation in view of the fact that the plaintiff has not been in possession of the items of the properties at any time within 12 years of suit and thereby he has lost his title thereof on the date of the suit by virtue of Section 27 of the Limitation Act, 1963.

8. As regards the first contention, it is pointed out by Mr. Kesava Iyengar, that though in the plaint reliefs of declaration and the validity of adoption as also recovery of possession of the items in the hands of the first defendant have been claimed, the plaintiff failed to get those reliefs as against the first defendant in A.S. No. 350 of 1958 and therefore Explanation V to Section 11 of the Code of Civil Procedure comes into play. Explanation V is as follows:

Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the purpose of this section, be deemed to have been refused.

It is however, pointed out by Mr. Sundaram Iyer, the learned Counsel for the respondent-plaintiff that no specific relief was claimed in the plaint and that the suit was mainly filed to recover the properties alienated by the first defendant and other widows in the family and that in any event this Court in A.S. No. 350 of 1958, not having granted the relief of possession as against the first defendant on the ground that no such relief has been sought as against her, the said explanation cannot bar the present suit, for the reliefs cannot be deemed to have been refused by this Court in that appeal. But a perusal of the plaint in O.S. No. 57 of 1948, clearly shows that the plaintiff specifically claimed the relief by way of recovery of possession in respect of A schedule properties against all the defendants including the first defendant with mesne profits and that the items in dispute in this suit were the subject-matter of E schedule properties. But this Court in A.S.No. 350 of 1958 while considering the question of the relief to which the plaintiff will be entitled has stated:

No relief is asked for against respondents 1, 2, 3 and 5.

and in that view the plaintiff was given no relief as against the said respondents. Respondent 1 therein is Chinnathayee Ammal, the first defendant in this suit. According to the learned Counsel for the appellants,

though specific reliefs were sought for by the plaintiff in the earlier suit, the Court not having granted those reliefs, it should be deemed that the relief of possession claimed in the plaint has been refused and therefore the present suit for recovery of possession is barred by the principle of res judicata by virtue of Explanation V to Section 11, Civil Procedure Code. But according to the learned Counsel for the respondent, Explanation V to Section 11, could be invoked only in cases where the Court considers and rejects the claims put forward in the plaint or when the plaintiff gives up the plaint claim, and that Explanation V cannot come into play when the Court did not grant the relief on the erroneous impression that no relief has been claimed in the plaint as against the first defendant in relation to the disputed properties as will be clear from the observations of this Court in A.S.No. 350 of 1958, referred to above. In support of his contention Mr. Sundaram Iyer refers to the decisions in Jamila Khatun v. Kasim Ali A.I.R. 1951 Nag. 375. and Ratipal v. Bapin Chandra A.I.R. 1917 Oudh 20. In the above decisions it has been held that where a Court abstains from granting a relief on the ground that in its opinion no such relief has been claimed in the plaint, such an abstention does not in a subsequent suit operate as res judicata under Explanation V to Section 11, Civil Procedure Code. In my view, the above decisions have correctly interpreted and applied Explanation V to Section 11, Civil Procedure Code. If the relief has not been expressly granted by the decree in the earlier suit on the assumption that no relief has been claimed in the plaint, then it cannot be deemed that the Court has considered and refused to grant those reliefs. The effect of Explanation V is that of treating the omission to grant the relief asked for in the plaint as equivalent to an express refusal and to bar a fresh suit for the same reliefs by the same plaintiff. But such a bar would arise only when the Court was conscious of the fact that such a relief was claimed. But where the plaintiff has actually claimed the reliefs in the plaint and the Court misconceived the nature of the suit or the reliefs claimed therein and thought that no relief has been claimed the omission to grant the relief by the Court cannot operate as res judicata.

9. The learned Counsel for the appellants then contends that the Explanation V does not speak of the judgment and it refers only to a decree and therefore in applying the said Explanation no reference need be made to the judgment or to the reasons why the relief was not granted or refused, and that once it is found from the decree that no relief has been given to the plaintiff even though he has sought the relief in the plaint, then the Explanation has to be invoked. But in a case where the Court proceeds on a wrong or erroneous assumption and refrains from giving any relief on that basis it cannot be said that the Court was aware of the claim made in the plaint and rejected the same. The deeming provision contained in Explanation V cannot be interpreted in a vacuum without reference to the peculiar facts. If the said Explanation talks of a deeming refusal of the reliefs, it must be taken that the Court was aware of the reliefs and considered and refused the same. In a case where the Court proceeds on the basis that there are no reliefs claimed, the non-grant of the reliefs cannot be taken to be a deemed refusal. I have to therefore hold that Explanation V to Section 11, Civil Procedure Code, cannot, be invoked in this case both in respect of the relief of declaration as to the validity of the adoption as well as for recovery of possession.

10. The second contention relates to the proof of adoption. According to Mr. Kesava Iyengar heavy onus lies on the person relying on the adoption to adduce the best evidence possible, but no acceptable evidence has been adduced in the case to establish the alleged adoption and therefore an adverse inference has to be drawn against the claim of adoption put forward by the plaintiff. It is seen that neither the plaintiff, the adopted son nor the adoptive mother has been examined and the only oral evidence relating to adoption is that of P.W. 1, who is alleged to have been present at the time of adoption. In addition there is the deed of adoption executed by the 1st defendant. The comment of the appellant's learned Counsel is that unless there is evidence of giving and taking the boy in adoption, the mere execution of a deed of adoption may not suffice . But it is seen that in A.S. No. 350 of 1958 this Court has specifically held that the adoption effectually took place and it was valid. In the earlier suit the first defendant has affirmed the adoption and even in this suit she supports the case of adoption put forward by the plaintiff, The appellants would however contend that the decision in the earlier suit upholding the adoption will not bind them. But having regard to the fact that the first defendant was a party to the earlier suit and the decision rendered being in her presence, the first defendant is bound by the said decision upholding the factum of adoption and the validity thereof. Therefore, I have to agree with the view of the lower appellate Court that the decision in A.S.No. 350 of 1958 is res judicata as against the first defendant and the appellants who claim under the first defendant cannot now question the adoption.

11. As regards the third question it is urged on behalf of the appellants that in view of the fact that relief by way of recovery of possession in respect of the items in question not having been granted as against the first defendant in A.S.No. 350 of 1958, the first defendant should be taken to have become the absolute owner of the properties after the coming into force of the Hindu Succession Act. This contention proceeds on the basis that the plaintiff's claim for recovery of possession of the items in question from the first defendant had been specifically rejected and the first defendant was in possession of the items in question as a limited holder and that the plaintiff as adopted son has no claims over them. But as already stated, the decision in A.S.No. 350 of 1958 cannot be said to be res judicata for the plaintiff's claim for recovery of possession in the present suit, and if the adoption is held to be true the first defendant is only a maintenance holder. In such a case Section 14 cannot properly be applied. I have to therefore hold that the first defendant has not become the absolute owner of the property in view, of Section 14 of the Hindu Succession Act:

12. The next contention relates to the question of estoppel. It is 'urged on behalf of the appellants that the plaintiff was present at the time of the negotiations for the sale and that he got the benefit of the money and therefore he is estopped from questioning the sales effected by the first defendant. Reliance is placed on the evidence of D.W. 9 who says that the plaintiff was aware of the second sale deed and the first defendant gave the sale price to the plaintiff before the Sub-Registrar at the time of the registration. But his evidence has not been accepted by the lower appellate Court, and sitting in second appeal I cannot say that the lower appellate Court erred in rejecting the said oral evidence of D.W. 9. It is therefore not possible to say that the plaintiff took part in the negotiations and had the benefit of the sales in question.

13. On the next question as to whether Section 41 of the Transfer of Property Act stands attracted to the facts of this case, it is contended that the first defendant's possession was not questioned by the plaintiff and that, therefore, the sales effected by her should be upheld and the appellants have acted in good faith. As already seen the sales impugned in this suit are before 1964 when the Judgment in A.S.No. 350 of 1958 was rendered by this Court. The appellants were aware of the pendency of the suit and the litigation between the parties. They purchased the property during the pendency of the earlier litigation; It cannot therefore, be said that at the time of the purchase they took reasonable care to ascertain that the first defendant had power to mate the transfer. They seem to have purchased the property from the first defendant subject to the result of the said suit. It is true that no relief was granted to the plaintiff in respect of the items in question in the earlier suit. But that cannot be taken to confer an absolute title on the first defendant who had executed the sale deeds in favour of the appellants. Therefore, Section 41 cannot be invoked in the circumstances of this case.

14. On the question of necessity for the alienations it is stated that the plaintiff was living with the first defendant, that his education, marriage, maintenance and litigation, expenses have been met by the first defendant out of the sale consideration and therefore, the sales by the first defendant have to be upheld. The question of binding character of the alienations will arise only if the sales have been effected by the first defendant as a limited owner. But as already stated, after the adoption the first defendant was only entitled to maintenance and therefore she had no right to alienate the properties. Even otherwise the lower appellate Court having held on the evidence that the alienations were not for binding purposes I have to agree with that finding which is one of fact. Therefore this contention also has to be rejected

15. Then coming to the question of limitation, the contention on behalf of the appellants is that the plaintiff became a major in 1944 and that he could have recovered possession of the suit items from the first defendant within 3 years of his attaining majority, and that possession of the suit items by the first defendant became adverse to the plaintiff from the year 1944 when the plaintiff became major and that the present suit having been filed only in 1965 it is clearly barred by limitation. It is also pointed out that the plaintiff not admittedly having been in possession of the suit properties within 12 years of the filing on the suit has to fail. It is seen from the partition deed Exhibit B-78 dated 11th July, 192.1 entered into between the first defendant and Kuppammal on the one hand and Shanmugathammal and Meenakshi Ammal on the other that the properties allotted to each of them have to be enjoyed without any power of alienation during their life-time and thereafter they must revert to the estate of Ramaswami Filial. Therefore, the first defendant was in possession of the property in pursuance of the said partition deed. It cannot, therefore, be said that her possession was adverse to the plaintiff who has to get that property after her life-time. The learned Counsel refers to Section 27 of the Limitation Act and contends that the plaintiff's right of suit even as against the first defendant is barred as he has not filed a suit within 12 years of his attaining majority and that the first defendant should be deemea to have acquired title to the suit property by adverse possession. But as already stated the plaintiff could claim possession of the property only after the first defendant's lifetime as per the partition arrangement under Exhibit P-78 and as such the first defendant's possession cannot be said to be adverse to the plaintiff who has to take the properties after her life-time. The cause of action for the plaintiff to recover possession of the items in dispute will arise only either on the date of the first defendant's alienations or when she dies. The lower appellate Court appears to be right in holding that the suit is not barred by limitation. But in view of my finding that the plaintiff became entitled to possession of the items only on the death of the first defendant, the plaintiff will be entitled to mesne profits only from the date of death of the first defendant.

16. The result is, both the second appeals fail and they are, therefore, dismissed, subject to the modification made in regard to mesne profits.

17. There will be no order as to costs in either of the second appeals. Leave granted.

18. The arguments addressed before Ramanujam, J., are repeated before us by Mr. Kesava Iyengar, Mr. Abdul Wahab appearing for the respondent in L.P.A. No. 30 of 1973 and the appellant in L.P. A. No. 38 of 1974 would mainly contend, resting upon the observations of Ramanujam, J., that the suit laid by the plaintiff is not barred by limitation. Strong reliance is placed in Exhibit B-78, which is referred to by the learned Judge. This document was called a partition deed. Factually this was a domestic arrangement between the maintenance-holders in the year 1921 whereby they agreed to enjoy defined and definite portions of the properties to which they were entitled to as maintenance-holders and it appears that each one of them took possession of the properties pursuant to the said so-called partition deed. The contention of Mr. Wahab is that even if Exhibit P-78 fails as a partition deed, it ought to be understood as a family settlement whereby certain possessory rights got vested in each of the parties to the deed and that therefore the question of limitation which arises in this case has to be worked out with reference to the position of each of the parties to the said deed. As the properties in question which were purchased by the appellants in LP. A No. 30 of 1973 ware in the possession of Meenakshi Ammal, the learned Counsel would contend that the date of death of Meenakshi Ammal should be taken as the relevant date for the purpose of working out whether the suit instituted by the plaintiff is barred by limitation or not. As regards the other contentions, he would invite our attention to the finding rendered by Ramanujam, J; and would repeat them for acceptance.

19. We shall now take up, excepting the plea of limitation, the contentions of Mr. Kesava lyengar. He would urge before us that the claim of the plaintiff is barred by the principle of res judicata. We are unable to agree. In order to invoke Explanation to Section 11 of the Code Civil Procedure it appears to us that the grant of relief by the concerned Court should be on a full and final adjudication of the rights of parties after a considered appreciation of the relative contentions. If, in a given case no relief is granted as such but on the other hand, the contesting plaintiff does not press for such a relief and the Court sitting in judgment over the particular lis considers that it was not necessary for it to grant or refuse any such relief asked for on the ground that no relief was asked for against a particular defendant in the action, then in such a situation it cannot be said that the Court granted a relief; Such a grant, as already stated by us, should be on a lull examination of the merits of each claim before the Court and after a proper adjudication giving the reasonable impression that the Court applied its mind and came to the conclusion that the relief should or should not be granted. It is in this context the language in Explanation V to Section 11 has to be understood. It says, any relief claimed in the plaint which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Ramanujam, J., in the course of his judgment, rightly refers to the fact that the High Court, on the assumption that no relief has been claimed in the plaint, did not go further into the question. The observation of the learned Judge is that the bar under Explanation V to Section 11 of the Civil Procedure Code would arise only when the Court was conscious of the fact that the relief of the claim is discordant or opposed to the facts of the case. Further, the learned Judge said, while the plaintiff actually claimed the relief in the plaint and the Court misconceived the nature of the suit order reliefs claimed therein and thought that no relief has been claimed, the omission to grant the relief by the Court cannot operate as res judicata. It may be that the appellate Court in this case proceeded on an erroneous assumption, but the fact remains that it did not grant any relief on that assumption and this being the basic fact which prompted the learned Judge to reject the first contention of Mr. Kesava Iyengar, we are unable to interfere at this stage in a Letters Patent Appeal.

20. As regards the proof of adoption, this has been upheld by the High Court in the earlier proceedings as early as 5th August, 1964. It has stood the test of times in A.S. No. 350 of 1958; and it cannot be out of place to point out that the parties proceeded on the foot that the plaintiff was the adopted son. This would be seen from the further argument addressed by the learned Counsel at a later stage before us; We are therefore unable to disturb the finding, which has been concluded and which was accepted by the competent Courts earlier including the High Court regarding the question of adoption.

21. Mr. Kesava lyengar, however, did not seriously urge before us any argument on Section 14. of the Hindu Succession Act or on the impact of Section 41 of the Transfer of Property Act. We therefore confirm the finding of Ramanujam, J., in that behalf. It is unnecessary to go into the question whether the alienations made by the mother of the plaintiff namely, the 1st defendant, during the pendency of O.S. No. 57 of 1948, on the file of the Sub Court, Madurai, are supported by consideration or not. As rightly said by Ramanujam, J., the finding on this aspect being a finding of fact he did not interfere. For a greater reason we do not want to touch upon this concluded finding as to the necessity or otherwise of the sales.

22. The only important question that was urged before us is the question of limitation. Mr. Kesava Iyengar vehemently stressed that it was the plaintiff, the respondent in L.P.A. No. 30 of 1973 who filed O.S. No. 57 of 1948 on the file of the Sub-Court, Madurai, sought for a declaration that he was the adopted son of Ramaswami and impleaded his adoptive mother on the side of the 1st defendant in that action. Incidentally and necessarily too he wanted that all the alienations effected by his mother, who as the law stood then, was only a maintenance-holder or who had a widow's estate over the properties, should be set aside and he be put in possession of all such properties. Obviously this suit did not take into its fold those alienations made by the adoptive mother during the pendency of that litigation. It was in this suit which finally ended up in appeal to this Court in A.S. No. 350 of 1958 that the plaintiff's status as adopted son was upheld. It transpires however that the adoptive mother pendente lite alienated certain other properties in favour of defendants 2 and 12 who are the appellants before us. The attitude of the plaintiff throughout, as is seen from this marathon litigation in this family, was one of hostility against his adoptive mother. Though, prima facie, it appears that the adoptive mother filed O.S. No. 37 of 1943 claiming herself as guardian of the plaintiff yet even in that suit there were some bickerings about the competency of the 1st defendant to adopt and the status of the plaintiff as the adopted son. Be that as it may, ever since 1948 the plaintiff asserted his title in himself to the exclusion of his mother and wanted possession of the properties alienated by her from the alienees. In fact, he wanted mesne profits from all the defendant's including his mother. But the Court while disposing of AS. No. 350 of 1958 thought that the plaintiff did not ask for any relief against the adoptive mother in that suit. We have already referred to this aspect. Ramanujam, J., has referred to it in detail. After the conclusion of the above suit in which his status as adopted son was declared the plaintiff again comes to Court, seeking to set aside the alienations done by his mother during the pendency of O.S. No. 57 of 1948. In the present plaint the plaintiff has made the following allegations:

The plaintiff respectfully submits that his status as the adopted son of Ramaswami Pillai had been legally declared by the High Court, Madras in the above-said appeal and the same is binding on the defendants herein. During the pendency of the abovesaid suit and appeal the 1st defendant herein had made further alienations of the schedulementioned properties in favour of the defendants 2 to 11 as stated hereunder. The 1st defendant is an illiterate woman. In order to defraud the rights of the plaintiff the 1st defendant had colluded with the other defendants and the other defendants taking advantage of the illiteracy of the 1st defendant brought about several alienations which are not at all binding on the plaintiff. The 2nd defendant claims to have purchased plaint items 1 and 2 from the 1st defendant under two sale deeds dated 31st August, .1962 and 18th March, 1964, The 3rd defendant claims to have purchased items 3 to 5, 7 and 8 of the plaint schedule from P. Ramasami Ambalam who in his turn claimed to have purchased the said properties and other properties from the 1st defendant. Defendants 4 and 5 are brothers. 4th defendant claims to have purchased items 9 to 13, 24, 25, 26 and 27 of the plaint schedule from the 1st defendant in the name of the 4th defendant. 4th defendant also claims to have obtained other in respect of lacre 20 cents in item 2 and items 14, 15, 20, 21 and 23 in the name of the 4th defendant. The 6th defendant claims to have purchased item 6 from P. Ramasami Ambalam, vendor from D-1. The 7th defendant claims to have obtained an othi of items 17, 18 and 19 from the 1st defendant. The 8th defendant claims to be a Court auction-purchaser of item 14 subject to the othi in favour of the 4th defendant mentioned above. The 9th defendant claims item 29 as having been purchased by his father, since dead, from the 1st defendant. The 10th defendant claims to have purchased from the 1st defendant item 28. 11th defendant claims to have purchased item Nos. 24 and 25 from the 1st defendant, The plaintiff respectfully submits that the said alienations have all been made by the 1st defendant without any legal necessity and for purposes not binding on the estate of late Ramasami Pillai. The said alienations are all fraudulent ones not supported by consideration. In any event the said items having been alienated by the 1st defendant during the pendency of the proceedings in O.S. No 57 of 1948 and A.S. No. 350 of 1958 mentioned above to which the 1st defendant was a party, the alienees Cannot claim any title thereto contrary to the rights of the plaintiff as declared by the High Court, Madras. In this connection it has to be stated that in the suit O.S. No. 37 of 1943 on the file of this Hon'ble Court and in appeal. A.S. No. 20 of 1944 on the file of the District Court, Madurai, second appeal S.A. No. 2123 of 1945 on the file of the High Court of Judicature at Madras and Letters Patent Appeal No. 22 of 1947 on the file of the said High Court, Madras that followed the said suit it had been held that the 1st defendant was only a maintenance holder. The plaintiff further respectfully submits that defendants 4 and 5 were lessees under the 1st defendant and that the plaintiff was under the belief that they continued only as lessees. The defendants 2 to 11 are also fully aware of all the abovesaid proceedings and the want of title in 1st defendant to deal with the undermentioned properties. Defendants 2 to 12 in the circumstances are bound to restore possession to the plaintiff. They are also liable for mesne profits from the respective dates when they had taken possession of the same. They are also estopped from contending that 1st defendant had any alienable right in the plaint properties. 12th defendant is the father of the 2nd defendant and as he got registered release deed in respect of items 1 and 2 from 2nd defendant he has been impleaded to get a binding decree on him also.

23. The plaintiff's requests to defendants 2 to 12 to hand over possession of the schedule-mentioned properties with, mesne profits had been of no avail.

24. The plaintiff respectfully submits that the estate in the possession of the 1st defendant on the date of the suit O.S. No. 57 of 1948 mentioned above was yielding a net annual income of more than Rs. 5,000. 1st defendant's family expenses cannot exceed more than Rs. 100 per mensem and in the circumstances a very large surplus must be available with the 1st defendant. There was therefore absolutely no need for her to alienate any of the properties described in the schedule hereunder. The alienations made by the 1st defendant are opposed to law and the same cannot confer any title or right in the alienee. The plaintiff being the adopted son of late Ramasami Pillai, the 1st defendant has also no right to alienate the schedule-mentioned properties of her own accord. The plaintiff alone is absolutely entitled to the entire estate of late Ramasami Pillai, his adoptive father. The plaintiff also never authorised the 1st defendant to make any alienations nor did he consent to any of the alienations mentioned supra. In the circumstances the said alienations are not binding on the estate of late Ramasami Pillai or on the plaintiff.

25. The plaintiff further respectfully submits that Chinnatthayee Ammal, 1st defendant herein latterly had even gone to the extent of denying the adoption solely with the object of defrauding the plaintiff of his valuable rights and in collusion with the alienees and on the advice of her brother Nalliah Pillai. It is only after taking the encumbrance certificate the plaintiff became aware of the fraud committed by the 1st defendant in alienating the properties. The plaintiff respectfully submits that in the circumstances no portion of his claim is barred by limitation. The plaintiff's status as adopted son of late Ramasami Pillai was declared only on 5th August, 1964. In view of the fact that in O.S. No. 57 of 1948 this Hon'ble Court held against the plaintiff's adoption, the plaintiff could not also take any proceedings against the alienees during the pendency of the appeal in the High Court, Madras.

26. Wherefore it is prayed that this Hon'ble Court may be pleased to pass a decree,

(a) directing the defendants to place the plaintiff in possession of the schedulementioned properties without any let or hindrance ;

(b) directing the defendants to pay the plaintiff future mesne profits from the date of plaint till date of delivery ;

(c) directing the contesting defendants to pay the plaintiff the costs of the suit;

A casual perusal of such allegations, discloses the consciousness on the part of the plaintiff that he was not only fighting the alienees but also his adoptive mother, who, according to him. has fraudulently and in order to defeat his interests effected such alienations. It is not in dispute that the 2nd and 12th defendants purchased under Exhibit B-24 and B-25 dated 31st August, 1962 and 18th March, 1964 about 8 acres from the 1st defendant during the pendency of O.S. No. 57 of 1948. The plaintiff was adopted on 15th July, 1937 when he was a minor. He became a major in 1944. As disputes arose regarding his adoption he had re-course to the Court of law in 1948. In the suit filed in 1948 he has openly declared his mind as against his adoptive mother and her attitude. At any rate it is clear that he was aware that there were certain third parties quite unrelated to the family who were in possession of the properies consequent upon the alienations made by his mother. The point for consideration is whether the present suit filed by the plaintiff in 1965 is in time. What is urged before us is that the plaintiff not having been in possession of the suit properties for a period of 12 years prior to the institution of the suit and as they were in the possession of his mother who was acting adversely to him, the alienations made by her in 1962 or 1964 should be deemed to be alienations made by her in such adverse environment and that therefore the suit is out of time for the reason it was filed beyond the period of 12 years from the date of the consciousness and his awareness of the rights of third parties. The argument is, as the adoptive mother was in possession to the exclusion of the adopted son, not withstanding the fact that the adoption factually tools place in I937 and was finally upheld by the competent Courts later, the plaintiff who was fighting such adverse parties ought not to have kept quiet without filing an independent suit for possession of such properties notwithstanding the pendency of his suit for a declaration that he was the properly and really adopted son of late Ramaswami. Justice Ramanujam, however relied upon Exhibit P-78. In our view, Exhibit B-78 cannot help the situation. The learned Counsel for the respondent says that it should be viewed as a deed of family settlement. In 1921 the parties to Exhibit P-78 were only entitled to maintenance. They made an arrangement inter se amongst themselves that one or the other of the widows in the family should be in possession till their life-time of definite portions of the family properties and enjoy the income therefrom in lieu of maintenance. Such possession is not only permissive but must be deemed to be possession not only by the person actually in possession but possession on behalf of all. Therefore, such domestic arrangement cannot perfect a legal title in the person in actual possession of the properties, but on the other hand such possession should be viewed as prima facie indicia which made known to the public as to who was the person in actual and physical possession ; beyond this such possession does not create any legal right. It is common ground that the last female member who was in possession of the suit properties and who dealt with them in her own right, was the adoptive mother of the plaintiff. Justice Ramanujam, was of the view that the first defendant's possession of the properties in dispute and which were purchased by the 2nd and 12th defendants were in pursuance of the so-called partition deed Exhibit B-78. We have referred to the specific allegations made by the plaintiff in O.S. No. 57 of 1948 which throws abundant light upon the mind of the plaintiff and his relationship as between himself and his adoptive mother. He accuses her of fraud, collusion and of an attitude which is openly, antagonistic to him. In such circumstances, it cannot but be said that the 1st defendant's possession was adverse to the plaintiff in the sense that she was setting up a title which is commonly and popularly known as hostile title to the properties in question. If any person is conscious of such a treatment of his properties or properties claimed by him as his and he keeps quiet without agitating his right in a manner known to law and set at naught the adverse claim by a third party, may be the adoptive mother, then he is to suffer the consequences thereby. On the ground that Exhibit B-78 dated 11th July. 1921 cannot be treated as a partition deed and much less as a family arrangement, we are unable to agree with Ramanujam, J. The learned Judge went further and observed that the plaintiff could claim possession of the suit property only after the 1st defendant's life-time and in that context he was of the view that the suit is within time. In a suit for declaration where title to any property is in dispute or a particular status is claimed, then a person, who seeks for such a declaration should be alert and astute and dutiful so as to safeguard the rights annexed to the relief he is seeking for in the suit for declaration. If a suit for declaration is ultimately decreed, then the successful litigant in the suit obtains a right; As rights and duties are correlative such a litigant should with precision and promptitude take such steps as are necessary to discharge his duties as well. For instance, if, as a result of the judgment and decree in the suit for declaration the litigating person's title or status is upheld, then certain consequences necessarily flow from it. If it is a suit for declaration of title to property then it dates back to the date of plaint. If he loses, no question arises. But if he succeeds, then he should follow up his earlier litigation wherein he seeks for a declaration by stemming the flow and growth of rights in other parties, who act adversely to him in the course of such a litigation. If a person litigating in the declaratory suit is aware that a third party is adversely in possession of the subject-matter in that suit, then he should be prompt enough to intervene and set at naught such claims by persons adversely acting against him by initiating necessary legal action,

27. It is in this behalf that such a litigant should, not only file a suit for declaration but also take such ancillary and necessary steps as against persons claiming adversely against him in a contemporaneous litigation started for that purpose. If ultimately he fails in the declaratory suit, no doubt the ancillary suit taken by him to protect his rights might become futile, but this would not help the person from taking such prompt steps and arrest the flow of the adverse effect of the law of limitation. If he fails to do so and the third party or her assigns who adversely acts gets certain rights in himself or themselves in accordance with common law, then such vested rights cannot be disturbed or divested by the person who initiated the declaratory suit, if he keeps quiet and silent for the period provided for under the Limitation Act and allows the third party to perfect his title in a manner known to law. In the instant case, it should be viewed that the mother's title in the circumstances of the case was adverse to that of the plaintiff. Again, the position is similar in the case of a suit for declaration as to status. In such declaratory suits when the status is declared favourably in favour of the litigant-plaintiff certain rights necessarily will flow from it; such rights may be in relation to property. In order to safeguard and preserve his rights in case the declaratory suit regarding the status is ultimately successful the plaintiff in such an action should side by side take such steps as to sustain his prospective rights which he might secure in the suit for declaration as to status; If he is lethargic and guilty of laches and allows the accrual of rights by lapse of time in third parties, then he cannot afterwards file a suit as against such parties or their representatives and assigns who actually acquire rights by acting adversely, publicly and knowingly to him and restore himself to a more advantageous position in accordance with the letter and spirit of the declaratory decree as to status.

28. The law of limitation has to be interpreted grammatically and there is no scope for equity in it nor is there any intendment in it. The period prescribed in the various Articles in the Limitation Act starts in accordance, with the tenor and language of the concerned Article and there is no scope for argument based on reasonableness nor. can there by any ground for complaint of hardship when such a period prescribed under the law of limitation works itself out and confers a benefit on one and takes away the right from another. This proposition appears to be wall-settled as is seen from the dictum of the Privy Council in Narayan Jiyan Gounda Patil v. Puttabai .There the Law Lords observed:

Thomas Strangman contended strongly that since the title of the contending parties was involved in the suit it would be quite futile to institute a suit for possession. Their Lordships are unable to appreciate this point for the institution of a suit can never be said to be futile, if it would thereby prevent the running of limitation.

This has been approved and referred to by the Supreme Court in Siraei-ul-Hae v. S.C. Board of Waqf : [1959]1SCR1287 .

29. In the above background, when the feelings between the plaintiff and the 1st defendant, as the adoptive mother, were so estranged and when the plaintiff was conscious and aware that his adoptive mother was alienating the properties of the family to his prejudice, then he ought not to have rested content with filing a suit for declaration as to his status of adoption but should have contemporaneously filed a suit for possession or for injunction restraining the adoptive mother from dealing with those properties. The moment he became aware of the adverse treatment of the properties by his mother, then the impact of the law of limitation starts. Admittedly, the plaintiff was not in possession of the properties within a period of 12 years from the date of institution of the present suit. As a matter of fact, he was out of possession even prior to 1948. His suit in 1965 for possession from the alienees such as the appellant in this case on the ground that the alienations do not bind him as real owner is certainly beyond time. In this behalf we accept the contention of Mr. Kesava Iyengar and we are unable to agree with Ramanuiam, J., on this aspect. L. P. A. 30 of 1973 is therefore allowed in so far as the question of limitation is concerned. In all other respects the findings are upheld and reiterated by us. But there will be no order as to costs.

30. As regards L.P.A.No. 38 of 1974, the contention of Mr. Wahab, the learned Counsel for the appellant, is that the learned Judge was wrong in having awarded mesne profits from the date of death of the 1st defendant. We have already referred to the fact that feelings between the adoptive mother and the plaintiff were such that the plaintiff also claimed mesne profits in the suit O.S. No. 57 of 1948. Were do not think that the grant of mesne profits by Ramanujam, J., in favour of the plaintiff should be disturbed by us in an Letters Patent Appeal whose circumscription and the margin of enquiry is very much limited. This appeal fails and is dismissed. But there will be no order as to costs.


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