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Neelakanta Rao and anr. Vs. Narayanaswami Aiyar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in37Ind.Cas.733
AppellantNeelakanta Rao and anr.
RespondentNarayanaswami Aiyar and ors.
Cases ReferredPydigantam Jagannatha Row v. Rama Dons Patnaik
Excerpt:
.....death in 1833 and the inam register shows that the daughter must have been about 29 or 30 at the time of these sales. exhibit xiv the other sale-deed is too badly torn to be read. somebody, however, was good enough to read the sale-deeds to him, and he came to know of the purpose as it was mentioned in the sale-deed. but making all allowance for the meagreness of the evidence owing to the long lapse of time and for lapse of memory of old men who are called as witnesses we are not satisfied that the 10th defendant on whom the burden lay has proved that the sales were made for purposes binding on the estate. 71 distinctly laid down that reversioners are not persons claiming from or through a female heir so as to make possession adverse to her adverse to the reversioners and that adverse..........before, that is before the parithapi storm of march 1853, at the time when the defendant led this evidence plaintiffs had not produced the inam register which showed that the sales were made on the 4th october 1860. it is only after the plaintiffs had produced the inam register that the defendant through a witness produced two of the original sale-deeds, exhibits xiii and xiv, which we have reason to suspect were in the hands of the defendant himself.3. the defendant, therefore, started with a case which was obviously false and sought to support it by evidence of witnesses among whom the principal ones are the three on whose evidence he depends to prove the necessity for the sales. the most important of these witnesses is gopala aiyar one of the original vendees from jamna boi. the.....
Judgment:

1. The plaintiffs as reversionary heirs of one Ramachandra Ekanadha brought this action to recover certain immoveable property, the subject of this appeal, sold by Jamna Boi, the widow of the last male owner. Ramachandra Ekanadha, the last male owner, died in 1833 leaving his widow Jamna Boi and a daughter Soma Boi, then an infant of two years or thereabouts. The sale was made to six persons in equal shares by six separate sale-deeds on the 4th October 1860. The 10th defendant, the principal contesting defendant (whom we shall hereafter call the defendant) has now acquired the whole of the properties now in dispute through several intermediate sales from the alienees of the widow. The learned Subordinate Judge in the Court below has dismissed the plaintiffs' suit in respect of these items on the ground that the sales were made by the widow to get money to pay debts borrowed by her for the expenses of the marriage of her daughter and for the cultivation expenses of some of her lands which had been affected by floods. The plaintiffs appeal and the principal question now is whether the finding of the Subordinate Judge on this matter is correct. The evidence as to the necessity for the sales is that of defendants' witnesses Nos. 6, 13 and 15 who were all examined before a Commissioner, 16th witness for the defendants being one of the original alienees. As they were all examined on commission we are in as good a position as the Trial Judge to decide on their credibility and we have come to the conclusion that the evidence does not satisfactorily prove that the sales were made for the purposes found by the lower Court.

2. Before dealing with that evidence it is we think necessary to refer to the written statement of the 10th defendant as that suggests that he himself had really no knowledge of the purpose for which the sales were made. In paragraph 7 he stated that these items of property had passed out of the hands of the original family before the year 185C. He does not even say that the properties were sold by the widow though in his evidence he admits that he was aware of the sales before he filed his statement. In paragraph 8 he stated that if there was a sale of these properties, which evidently he did not admit, it must have been for the purpose of procuring money for the marriage of the daughter. The learned Pleader for the appellants laid some stress on these two paragraphs of the written statement and argued with considerable force that the defendant who must necessarily have known that these lands were sold in 1860 deliberately put forward a false case to enable him to plead that if there was a sale it must have been made to discharge debts contracted for the daughter's marriage; and that if the plaintiffs were unable to prove an alienation by the widow, to plead that title to the property bad been extinguished by 12 years' possession under the Limitation Act of 1859. It will be observed that the daughter was about 2 years of age at the time of Ekanadha's death in 1833 and the Inam Register shows that the daughter must have been about 29 or 30 at the time of these sales. The suit properties were inam lands and the sale-deeds executed by Jamna Boi were produced before the Inam Commissioners. She must have been married in the early forties, a number of years before the sales and we think that was the reason why the defendant put the sales as near to the date of the marriage as he could. Not merely did the defendant plead that the alienations were before, 1850 but be examined a considerable number of witnesses, about 10, (including the three who gave evidence as to the purpose) before the Commissioner, for the purpose of proving that the sales, took place in the year 1853 or before, that is before the Parithapi storm of March 1853, At the time when the defendant led this evidence plaintiffs had not produced the Inam Register which showed that the sales were made on the 4th October 1860. It is only after the plaintiffs had produced the Inam Register that the defendant through a witness produced two of the original sale-deeds, Exhibits XIII and XIV, which we have reason to suspect were in the hands of the defendant himself.

3. The defendant, therefore, started with a case which was obviously false and sought to support it by evidence of witnesses among whom the principal ones are the three on whose evidence he depends to prove the necessity for the sales. The most important of these witnesses is Gopala Aiyar one of the original vendees from Jamna Boi. The sales as we have stated above were to six persons including Gopala Aiyar who were all inhabitants of a place called Villianallur. The principal person who negotiated the sales was one Seethapathi Aiyar: the oldest among them. It appears from the evidence of Gopala Aiyar himself that he was then a boy of about 17 and that his affairs were managed by his brother-in-law one Panchanada Aiyar. It appears to us doubtful whether this Gopala Aiyar was present at all at the sale. At any rate there can be no doubt that he took no part in the negotiation or the obtaining of the sales, but it was Seethapathi Aiyar that arranged the whole thing on behalf of himself and his co-vendees. This witness deliberately put the date of sale in the Parithapi year, i. e., 1852-1853 in order that his evidence may accord with the statement already filed by the 10th defendant. In order to make the year of sale (ally with his age then, which he says was seventeen, he gives his present age as 77, in which case he would have been about 21 years of age and not 17 at the time of the sale. We think that these statements were deliberately made and were not due to any lapse of memory. He also says that with the price two debt bonds were paid off, and the bonds handed over to him: which again is scarcely likely, considering that he was a boy in his teens, while the negotiations were conducted and completed by Seethapathi Iyer. The two debt bonds which he says were handed over to him are not produced and it is said they were eaten up by white ants and destroyed. One curious difference may be noted between his evidence and that of Chockalingam Pillai, the defendants' 6th witness, who is said to have been present at the sale. While Chockalinga says that the debt bonds were in cadjan this witness is positive that they were in paper. He speaks to a number of details which it is scarcely likely he could have remembered at this distance of time. We are not, therefore, prepared to place any reliance upon this man's story.

4. The next witness on whom reliance is placed is Chockalingam Pillai defendents' 6th witness. He purchased a portion of the lands from Gopala Iyer which he in his turn sold to the father of the 10th defendant. He gives his age as 78, states that he was present at the time of the sale along with his father and is clear that his father attested these sale-deeds. He also starts with the statement, which is not true, that the sale took place four or five years prior to the Parithapi storm. He gives no satisfactory explanation for his presence at the time of the sale to the Villianallur people. In cross-examination he stated that at the time when the Brahmins of Villianallur who finally purchased the property went to Tanjore for this purpose, he and his father also went with them, but lower down he stated that, as the sale had been completed to the Brahmins of Villianallur, Jamna Boi said that she could not sell to him and his father. From the latter statement one would infer that he and his father went there for the purpose of obtaining the sale in competition with the Villianallur people, but were too late, while his previous statement in the same cross-examination leads one to infer that they all went together. According to him the sale had been settled to the Villianallur people, but he and his father stayed on although it had been so settled, and though they had no further business to detain them there. He stated that his father attested the document but in Exhibit XIII there is no such attestation. Exhibit XIV the other sale-deed is too badly torn to be read. It is obvious that the witness is speaking of things about which he knew nothing and in two material particulars, namely, as to the date of the sales and the attestation of his father, his evidence is proved to be untrue. It must be remembered that at the time when he gave his evidence the date of the sales had not been proved by the production of the Inam Register, and Exhibit XIII which would have disproved his statement as to the attestation by his father had not been produced and the defendant had probably no idea of producing it. The witness goes further and states that the sale-deeds were registered at Thiruvidamarudur, which again is not true.

5. The only other witness who speaks about the purpose is the defendants' 15th witness who again puts the sale before the Parithapi year. He is a resident of Neppukovil and the reason which he gives for being present at Tanjore is far from satisfactory. According to him while he was passing along the street Thyagaraja Pillai, the father of Chokalinga, who was sitting on the pial of the house of Jamna Boi called him and that the Villianallur Brahmins requested that he should remain with them and complete the sales. But he did not stay and nothing was done that day. He went to the house the next day after the sales had been completed; somebody, however, was good enough to read the sale-deeds to him, and he came to know of the purpose as it was mentioned in the sale-deed. No purpose is mentioned in Exhibit XII and it is not pretended that the terms of the other sale-deeds were different. We have already shown that in all probability, neither Chokalingam Pillai nor Thyagaraja Pillai his father, were there at the time of the sale. It is again difficult to see why he was asked to remain with the Brahmins.

6. These are the only three witnesses who speak about the necessity for the sale and it is impossible to place any reliance on their evidence. Wherever their evidence could be tested they are found to be speaking an untruth.

7. The only other piece of evidence which remains to be dealt with in connection with this matter is the alleged attestation of the sale-deeds by the plaintiffs' father. The only evidence as to this attestation is that of defendants'3rd witness. That that witness could not have been acquainted with the plaintiffs' father's signature is obvious on his own statements. His opportunity for seeing the signature of the plaintiffs' father was that that man was signing some account in a grocery shop in which the witness also had an account. It appears to us that that story of his is palpably false. Again we find no warrant for the assumption of the learned Judge that Siva Pandithar the person who purchased the stamp paper for the sales is the father of the plaintiffs.

8. The sales no doubt took place a very long time ago; but making all allowance for the meagreness of the evidence owing to the long lapse of time and for lapse of memory of old men who are called as witnesses we are not satisfied that the 10th defendant on whom the burden lay has proved that the sales were made for purposes binding on the estate. We must hold that the sales are not binding on the reversioners.

9. The learned Pleader for the respondents, however, sought to sustain the judgment of the lower Court, on a new ground which was not raised in the lower Court, viz., that the plaintiffs' suit for the recovery of items the subject of appeal is barred by limitation. To make the point clear it is necessary to state a few dates. The widow Jamna Boi who sold the property died on the 21st April 1865, the daughter Soma Boi who succeeded her died on the 27th June 1901, and this suit was instituted on the 7th December 1912. It is clear that so long as the widow was alive there can be no question of limitation for a suit by the reversioner. But it is said that on her death in 1865 the possession of the alienees became adverse to the daughter Soma Boi and as 12 years elapsed before the coming into force of Act XV of 1877, which for the first time enacted a special Article for the institution of a suit by a Hindu after the death of a Hindu female, enlarging the scope of Article 142 of Act IX of 1871, which provided for a suit on the death of a Hindu widow only, the adverse possession against Soma Boi must be taken to have been adverse to the reversioners also. It is argued that although twelve years had not elapsed from the death of the widow when Act IX of 187l came into force, as the Act provided a special period of limitation only for a suit to be instituted by a Hindu on the death of a Hindu widow, and as Soma Boi who would have been entitled to sue the alienees had allowed her right to become barred, the right of the present plaintiffs must be taken to have been extinguished along with the title of the daughter, as she represented the inheritance. We cannot agree with this contention. It is no doubt true that if the twelve years period had run out, before Act IX of 1871 came into force, not merely the daughter bat also the reversioners would have been barred under Act XIV of 1859, Sreenivasa Rangavachariar v, Sambasiva l'illai 1 M. L.J. 392. [overruling on review Sambasiva v. Ragava 4 Ind. Dec. 1069. But the scheme of the previous Limitation Act was altogether changed when Act IX of 1871 was passed. Even if Article 142 of Act IX of 1871 did not apply to reversioners in the position of the present plaintiffs, the Article which would be applicable to a suit by the reversioners, in the absence of a special Article, would be Article 145 of Act IA 1871, corresponding to Article 144 of the later Acts, which gives twelve years from the time when the possession of the defendants became adverse to the plaintiffs. The contention for the respondents is that the possession of the defendants, which was adverse to Soma Boi the daughter, was necessarily adverse to the reversioners, as Soma Boi represented the inheritance, and that the reversioners must be deemed to be persons claiming from or through Soma Boi. The question then is whether the plaintiffs claim from or through Soma Boi. The Privy Council in Runchordas Vandravandas v. Parvatibai 26 I A. 71 distinctly laid down that reversioners are not persons claiming from or through a female heir so as to make possession adverse to her adverse to the reversioners and that adverse possession against reversioners began only from the time when they became entitled to possession. The exact question now raised came up for decision before the Calcutta High Court in Srinath Kur v. Promnno Kumar Ghose 9 C.D 934 and a Full Bench of that Court had no hesitation in holding that reversioners were not barred. See also Kohilmoni. Dassia v. Maraok Chandra Joaddar 11 C.S 791. and Braja Lai Sen v. Jiban Krishna Roy 11 26 C. S 285 It has been held by this Court in Kancharla Vonkataratnam v. Koganti Venlcataramiah 25 Ind. Cas. 692. that the time allowed for an action by an adopted son to recover possession of immoveable property held adversely to his adopting mother was twelve years from the date of his adoption. There is no specific Article in the Limitation Acts of 1871, 1877 or 1908 for a suit by an adopted son and the Article applicable is the residuary Article 144. The learned Judges had no hesitation in holding that the adverse possession of a trespasser against the widow was not adverse possession against the adopted son and that there can be no adverse possession till the adopted son became entitled to possession, that is, on his adoption. We think the principle of this decision applies to this case. It is no doubt true that in Srinath Kur v. Prosunno Kumar Ghose (4) reference was made to the Articles applicable to remaindermen and reversioners---terms scarcely applicable to the so-called reversionary heirs to a deceased Hindu male, who have no estate so long as the heiress is alive---and no reference is made to Article 144, the residuary Article in respect of suits for immoveable property. It may also be noted that Seshagiri Aiyar, J., in the latter case cites Sambasiva v, Ragava (2) as authority for his position without rioting that that case had been overruled on review. We think, however, the principle is not affected by this. The case of Pydigantam Jagannatha Row v. Rama Dons Patnaik (8) does not affect the present question, as there the question related to the office of trustee in which the widow had no beneficial interest; in fact that very case recognises the principle that adverse possession against the ultimate reversioner doss not begin till he is entitled to possession.

10. We must, therefore, reverse the decree of the lower Court and decree the plaintiffs' suit in respect of the properties the subject of the appeal with costs here and in the lower Court. The plaintiffs are also entitled to mesne profits from the date of the suit at the rate fixed by the lower Court.


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