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Nachar and ors. Vs. Palanisamy and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Reported in(1977)2MLJ306
AppellantNachar and ors.
RespondentPalanisamy and ors.
Cases ReferredMusti Venkata Jagannadha v. Musti Veerabhadrayya
Excerpt:
- - 1. plaintiffs 2 to 7 who succeeded in the trial court but failed in the lower appellate court are the appellants. 5. the trial court found that item 2 belonged to chella gounder and after him to the plaintiffs as chella gounder's exclusive property and that the grant was after the abolition of nattanmai service and not for the benefit of the family and that item 2 was enjoyed exclusively by chella gounder and plaintiffs, and it was not partitioned as contended by the defendants and defendants 1, 4, 6 and 7 have not acquired title to any portion of the property by prescription......first plaintiff and appellants 1 to 4 filed the suit for a declaration of their title to the suit properties and for a permanent injunction restraining the defendants from interfering with their possession and enjoyment of the properties or in the alternative, for recovery of possession of the properties with damages of rs. 100.2. the first plaintiff who died pending the suit was the wife of nattanmai chella goundar and plaintiffs 2 to 4, 6 and 7 are the daughters and the fifth plaintiff (fourth appellant) is the widow of their deceased son doraisamy. plaintiffs 6 and 7 (appellants 5 and 6) have been added as the legal representatives of the first plaintiff. the defendants are the pangalis of chella gounder.3. the suit properties consist of two items, namely, 1 acre and 46 cents of.....
Judgment:

A. Varadarajan, J.

1. Plaintiffs 2 to 7 who succeeded in the trial Court but failed in the lower appellate Court are the appellants. The deceased first plaintiff and appellants 1 to 4 filed the suit for a declaration of their title to the suit properties and for a permanent injunction restraining the defendants from interfering with their possession and enjoyment of the properties or in the alternative, for recovery of possession of the properties with damages of Rs. 100.

2. The first plaintiff who died pending the suit was the wife of Nattanmai Chella Goundar and plaintiffs 2 to 4, 6 and 7 are the daughters and the fifth plaintiff (fourth appellant) is the widow of their deceased son Doraisamy. Plaintiffs 6 and 7 (appellants 5 and 6) have been added as the legal representatives of the first plaintiff. The defendants are the pangalis of Chella Gounder.

3. The suit properties consist of two items, namely, 1 acre and 46 cents of dry lands comprised in S. No. 169/56 and 2 acres and 14 cents of wet lands comprised in S. No. 182/1 of Poongulam village. The case of the deceased first plaintiff and the appellants 1 to 4 was that the suit properties belonged to Nattanmai Chella Gounder who died in 1963, item 1 by right of purchase on 20th August, 1945 and item 2 as service manyam and he had mortgaged item 2, to the Land Mortgage Bank under Exhibit A-16 dated 24th May, 1958 and after the abolition of the service the patta was directed by the order Exhibit A-2 dated 19th November, 1957 to be granted to Chella Gounder and the patta Exhibit A-9 was accordingly granted to Chella Gounder for item 2 and other properties on 25th November, 1957. Their further case was that after his death, they (plaintiffs) and Doraisamy were in possession and. enjoyment of the properties and Doraisamy died in 1966 leaving his widow, the fifth plaintiff and in October, 1967, the defendants threatened to interfere with the possession of the plaintiffs and as a consequence, the notice Exhibit A-14 dated 9th October, 1967 was sent to the defendants who sent the reply Exhibit A-15 denying the exclusive title of Chella Gounder to both items of properties and saying that they are joint family properties and that patta was granted to Chella Gounder for the benefit of the entire family. The plaintiffs admitted in the cause of action paragraph of the plaint that the defendants trespassed into both items of properties on 1st January, 1968 and out the southern fence of item 2 and caused damage to the extent of Rs. 100. But they, however, prayed in the suit filed subsequently for declaration of their title to the suit properties and for a permanent injunction and only in the alternative, for recovery of possession of the properties with damages of Rs. 100. It may be noted that unfortunately the plaint had not been returned for clarification as to how in the face of the admission made in the cause of action paragraph that the defendants had trespassed into both items of properties on 1st January, 1968, the plaintiffs could seek the main relief of injunction and pray only in the alternative for recovery of possession with damages.

4. There was no dispute regarding item 1 of the suit properties and it was conceded that it had fallen to the share of Chella Gounder in the partition effected about twenty years prior to the date of the suit. The defence with regard to item 2 was that it was not the exclusive property of Chella Gounder-and that the grant was in his name for the benefit of the entire family as he was the Nattanmaikar. The defendants further contended that item 2 also was divided in the aforesaid partition, as indicated in the sketch appended to the written statement, according to which the south western corner portion fell to Chella Gounder's share and the remaining portions fell to the shares of defendants 1, 4, 6 and 7. It was contended that defendants 1, 4, 6 and 7 have also perfected their title to that portion by prescription.

5. The trial Court found that item 2 belonged to Chella Gounder and after him to the plaintiffs as Chella Gounder's exclusive property and that the grant was after the abolition of Nattanmai Service and not for the benefit of the family and that item 2 was enjoyed exclusively by Chella Gounder and plaintiffs, and it was not partitioned as contended by the defendants and defendants 1, 4, 6 and 7 have not acquired title to any portion of the property by prescription. On these findings, the learned District Munsif decreed the suit for declaration and injunction and dismissed it as regards damages for want of sufficient proof.

6. On appeal, the learned Subordinate Judge found on the basis of the Fair Inam Register extract Exhibit B-9 that the grant was for the benefit of the family and that there was no acceptable evidence or proof that the mortgage deed Exhibit A-16 dated 24th May, 1958 was executed by Chella Gounder in defiance of the rights of the defendants and to their knowledge and, therefore, the defendants are not estopped from contending that they also are entitled to shares in the property. He did not go into the question of partition which had been found against by the learned District Munsif and he dismissed the suit in view of his finding that the grant was for the entire family ignoring the case of the defendants that in the partition, the south western portion had fallen to the share of Chella Gounder. It has to be stated at the outset itself that the learned Subordinate Judge erred in dismissing the suit in full ignoring the admission of the defendants that the south western portion, as indicated in the sketch appended to the written statement, had fallen to the share of Chella Gounder in the partition effected 20 years prior to the suit.

7. A perusal of Exhibit B-9 shows that the grant was made to Chella Gounder, (senior) the paternal grandfather of the fourth defendant who has been examined as D.W. 3 for rendering service by keeping the kist collection safely and taking it for remittance into the treasury. D.W. -3 has admitted that the last Nattanmaikar was Chella Gounder, the husband of the deceased first plaintiff and father of plaintiffs 2 to 4, 6 and 7 and Doraisamy, the husband of the fifth plaintiff. There is evidence to show that the Nattanmai Service had been abolished prior to the date of the Tahsildar's Order Exhibit A-2 made on 19th November, 1957 on the basis of the proceedings of the Collector referred to therein. As already stated, in pursuance of Exhibit A-2, the patta Exhibit A-3 bearing No. 287 had been granted to Chella Gounder for item-2 and other properties on 25th November, 1957. Chella Gounder alone had dealt with item-2 after the partition, which has been found by the learned District Munsif to have taken place in 1951. The appellants have produced the receipts Exhibit A-4 to A-12 to show payment of kist by Chella Gounder's branch alone for the patta Exhibit A-3. The kist receipts Exhibits B-1 to B-6 produced by the defendants are for payment of kist for that patta, after the date of the suit and, therefore, they have to be ignored. The village Headman of the village, P.W. 2 has stated that item-2 was in the exclusive possession and enjoyment of Chella Gounder and the plaintiffs. The fact that Chella Gounder alone had dealt with the property by the mortgage Exhibit A-16 dated 24th May, 1958 executed in favour of the Land Mortgage Bank and that his branch alone had been enjoying the property and paying the kist under Exhibits A-4 to A-] 2 would show that this property could not have been divided in the partition effected in 1951 as found by the learned District Munsif. The defendants have not established that item-2 also was divided in the partition and that defendants 1, 4, 6 and 7 who claimed to have got the other portion excluding the south western portion had exercised acts of ownership in respect of that portion of item-2.

8. The learned Counsel for the respondents invited my attention to the decisions in Narayana v. Chengalamma I.L.R.(1887) Mad. 1. Pingala Lakshmipathi v. Bommireddipath Chalamayya (1907) 17 M.L.J. 101 : I.L.R.(1907) Mad. 434 and Satyamurti v. The State of Madras : AIR1971Mad385 , all of which deal with the effect of enfranchisement of service inams and lay down that enfranchisement does not confer any new title upon the person in whose favour the patta is granted after enfranchisement and that the family of the last holder of the inam would be entitled to the property even after the enfranchisement. These decisions do not lay down that branches other than that of the last holder of the inam also have shares in the service inam. The inam in this case has been granted, as already stated, for rendering service in keeping the kist collections safely and remitting them into the treasury.

9. The learned Counsel for the appellants herein before the lower appellate Court had drawn the attention of the learned Subordinate Judge to the decision of the Privy Council in Musti Venkata Jagannadha v. Musti Veerabhadrayya (1921) 41 M.L.J. 1 : 14 L.W. 59 : I.L.R. Mad. 643 : 48 I.A.244 : A.I.R. 1922 P.C. 96, where it has been held that the lands comprising the emoluments of a Karnam or village accountant in Madras are not joint family properties and that they are an appendage of the office inalienable by the office-holder, and designed to be the emolument of the officer into whose hands so ever the office may pass. Their Lordships of the Privy Council observed therein that in many cases there may be along continuance of the office in a particular family, but there is no absolute right of hereditary succession and the Karnam is a personal appointee, and if a stranger is appointed the lands go with the appointment to the stranger selected, without being subject to any claims thereon as a family right by relatives of former holder of the office and that this was the law in Madras even before Madras Act II of 1894 and Madras Act III of 1895, which make it clear that eligibility for the appointment of Karnam is a matter personal to the appointee and when Karnam lands are enfranchised under the Inam Rules of 1859 the enfranchisement is to the office-holder himself and does not enure for the benefit of his family.

10. In the present case also, the service, as already mentioned, is of keeping the kist collections safely and remitting 'them into the treasury and i t could not be stated that the other members of the family were en titled to interest in the service inam irrespective of the fact whether they rendered service or whether they were fit to render service which is in relation to the kist collections in the village. The learned Subordinate Judge has not given any satisfactory reason as to how this decision of the Privy Council should not be made applicable to the facts of the present case. Relying upon this decision of the Privy Council, I hold that Sella Goundar, the deceased first plaintiff's husband alone was exclusively entitled to the inam when the service was abolished and he alone had become exclusively entitled to the property by virtue of the order Exhibit A-2 and the grant of patta Exhibit A-3 after enfranchisement, that the property could assume the character of joint family in his hands and would be joint family property of his branch if the enfranchisement had been made in favour of any of the plaintiffs after his death, that the appellants ate entitled to the declaration and possession and that defendants 1, 4, 6 and 7 are not entitled to any interest in the property or to be in possession of any portion thereof.

11. The second appeal is, therefore, allowed with costs throughout. No leave.


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