T. Ramaprasada Rao, J.
1. As against a common judgment rendered by the learned Subordinate Judge of Chidambaram in two Original Suits tried by him collectively and numbered as O.S. No. 43 of 1970 and O.S. No. 48 of 1973 on his file, the above appeals arise.
2. We shall here deal with substantive rights as between the sharers in the estate of one Abdul Azeez Maracair who died in the year, 1962. He married, according to the plaintiffs, only twice, but according to others, thrice. The plaintiffs are the sons and daughter of Abdul Azeez Maracair (hereinafter referred to as Azeez) through his second wife. The first defendant is his first wife. The sixth defendant whose marriage with Azeez is disputed is the third wife. The 7th and 8th defendants are the son and daughter respectively of Azeez through the third wife and defendants 9 to 11 are the sons of the second wife through her earlier marriage with another person. Defendants 2 to 5 are admittedly the predecessors of the plaintiffs' share in the estate of Azeez in so far as suit items 7, 8 and 10 are concerned. The case of the plaintiffs is that the 6th defendant is not a lawfully wedded third wife of Azeez and in consequence, defendants 7 and 8, though impleaded as parties formally to this litigation, are not entitled to any share in the estate of Azeez. They would also contend that defendants 9 to 11 are not entitled to any share even as heirs of their mother who was the second wife of Azeez and who is also the mother of the plaintiffs. It was in those circumstances that they came to Court with a suit for partition and separate possession of their 15/16th share in 13 items of property, which according to them belonged to Azeez. In so far as this part of the litigation is Concerned, as we stated already, apart from the controversy as to the properties to which Azeez was entitled to on the date of his death, the question which has to be decided in the first instance, so as to hurdle over and mop up certain inconvenient situations regarding the number of sharers and their entitlement is whether the sixth defendant was the lawfully wedded wife of Azeez. The case of the 6th defendant was that she was such a wife and defendants 7 nnd 8 are the heirs of Azeez along with 'others and they are the children born to her through Azeez. We shall therefore, restrict this part of our judgment for the consideration of the question whether the sixth defendant could be said to be the lawfully wedded wife of Azeez. In fact, A.S. No. 550 of 1974 is an independent appeal by defendants 6 to 8 as against the finding of the Court below that the sixth defendant was not truly and lawfully wedded to Azeez. The Court below would not believe the oral and documentary evidence let in by the 6th defendant to support her claim that she did marry Azeez in accordance with the personal law of the parties and that the 7th and 8th defendants are her children born through him. As against those findings, the present appeal has been filed.
3. In the trial Court, the main contention of the plaintiffs was that the 6th defendant was already married at or about the time when she contracted intimacy with Azeez and in the absence of a talak as between her and her prior husband in a manner known to law, there could not have been a lawful wedlock as between her and Azeez and that therefore, defendants 7 and 8 cannot be understood and treated as the heirs of Azeez entitled to share in his estate. We may at once state that before us, plaintiffs and defendants 2 to 5 who, to use a loose expression 'the successors-in-interest', purchased certain suit items are not represented. Mr. Thillai-villalan filed his vakalat for the plaintiffs as well as defendants 2 to 5. But though the appeal was in the list for several days, he has not appearedt nor has he made any arrangement otherwise. The appeals came up for hearing yesterday and again continued today and even then, there is no representation. We had to, therefore, call the plaintiffs and defendants 2 to 5 in open Court and set them as absent. Later Counsel appeared.
4. In the above context of events, we have to see whether the story of the plaintiffs that the 6th defendant is not the lawfully weded wife of Azeez is true or whether the contention of defendants 6, 7, 8 and the aggrieved persons that the 6th defendant is a lawfully wedded wife and defendants 7 and 8 are the children of Azeez is true.
5. Both parties on either side agree that the 6th defendant was a married woman prior to her marriage with Azeez. The question, therefore, resolves itself simply to one of fact whether there is acceptable proof that at or about the time when the 6th defendant contracted marriage with Azeez, there was a divorce as between herself and her previous husband. In order to establish that there was such a talak, as it is known in the personal law of the parties, defendants 6 to 8 who are the appellants in A.S. No. 550 of 1974, who will hereinafter be referred to as appellants, filed Exhibits B-5, B-7, B-8 and B-10 to prove their case. Exhibit B-5 is an application made by the first plaintiff to the Kazi of the area asking for a copy of the talaknama which ought to have been recorded at or about the time when the prior husband of the sixth defendant divorced her. There is an endorsement in Exhibit B-5 itself to show that the first plaintiff received a copy of the said talaknama. The first plaintiff was examined as P.W. 2. When he was confronted with Exhibit B-5, he admits that it bears his signature at two places. When he was further confronted with the writing over the second signature of his, he would prevaricate and say. We are not able to accept the first plaintiff as a true witness. When he had the opportunity to examine the document Exhibit B-5 in Court, he could have in the first instance stated that there was no writing over his second signature and that it was an interpolation. But when he was confronted specifically about the said writing over the second signature of his, he would weave out a story that something wrong has happened. This is not all. Exhibit B-10 was produced by the appellants even at the trial stage. This is a copy of the talaknama pronounced by the prior husband of the 6th defendant which copy was issued by the Assistant Kazi examined as D.W. 3. D.W. 3 would say that he issued Exhibit B-10 which is a copy of the talaknama and confirmed that there was a divorce between the earlier husband of the 6th defendant and herself. The learned trial Judge would not rely upon Exhibit B-10 presumably for the reason that it was only a copy issued by the Assistant Kazi and that he had no authority to issue such copies. We are not satisfied that the Assistant Kazi has no such authority to issue copies of official records kept by the Kazi in his office. No definite interdict which would prevent the Assistant Kazi from issuing such copies has been referred to by the lower Court. Even otherwise, before us, the appellants have produced the original of Exhibit B-10. It is marked as Exhibit C-1 after we allowed the petition by the appellants, namely, C.M.P. No. 399 of 1978 for filing additional documents in this Court. There is a writing in Exhibit C-1 in Urudu. That is the signature of the Kazi. It would be difficult to produce a document of 1947 containing the signature of a Kazi and that too in Urudu late in 1978. The respondents though absent, and even after appearance by counsel did not lay any material before us to suspect the bona fides of Exhibit C-1. We compared Exhibit C-1 with Exhibit B-10 and they are similar in all respects. Having regard to the writing in Exhibit C-1, the age of the paper in which it has been written and in the absence of suspicious circumstances surrounding the other document, we are of the view that Exhibit B-10 is admissible because Exhibit C-1, its original has been produced. Again, we have the uncanny acknowledgement of legitimacy of the child, the seventh defendant by Azeez himself under Exhibit B-8. He has also referred to the sixth defendant as his lawfully wedded third wife, in Exhibit B-7. Though the recitals in Exhibit B-7 and B-8 by themselves may not prove the earlier talak between the 6th defendant and her prior husband, yet, these documents taken in conjunction with Exhibits B-5, B-10 or C-1 and in the light of the evidence of the first plaintiff himself and particularly for the reason that the first plaintiff applied for a copy of the talaknama as is seen from Exhibit B-5 wherein he says:
would itself probabilise the case of the appellant that the plaintiffs knew that there was a talak pronounced by the previous husband of the 6th defendant. The learned Judge rejected Exhibit B-10, as already stated, for the reason that it was only a copy. But while dealing with Exhibit B-5, he noted that the first plaintiff examined as P.W. 2 admitted that he has signed Exhibit B-5 at two places. He would add that P.W. 2 claimed that he does not knew who has written the line over his second signature. This insipid explanation of P.W. 2 in the witness box does not appeal to us. When he admitted that there was one undisputed signature in Ex. B-5 and when he does not spin out a story regarding the contents over and above his first signature, then the first plaintiff cannot escape the comment made by the appellants that he did apply under Exhibit B-5 for a copy of the talaknama. He did not approach the Kazi for the fancy of it but on the other hand, he sought for a copy of the talaknama and the connected records. This would imply that he knew that there was a talak. In these circumstances, we are of the view that there was a prior pronouncement of talak of the marriage as between the 6th defendant and her previous husband and that she was free at or about the time when she married Azeez. One thing that was put against the 6th defendant was that a child was born to her two months after the date of her marriage with Azeez. According to the 6th defendant, this was the child which she bore to her prior husband and that child died. In the absence of any further particulars to disbelieve this version of the 6th defendant and in the light of Exhibit B-5 coupled with his conduct, we are of the view that the finding of the learned Judge that there was no divorce as between the 6th defendant and her prior husband cannot be accepted. The judgment in so far as it finds that the 6th defendant is not the lawfully wedded wife of Azeez is, therefore, set aside.
6. We shall now pass on to A.S. No. 358 of 1974. Having thus rendered our views in A.S. No. 550 of 1974 and having expressed ourselves as to who could be the sharers to the estate of Azeez, we now proceed to deal with another controversy regarding certain specific items of the plaint schedule properties. Inter alia, the problem is whether items 1 and 7 to 10 in the plaint schedule are partible properties in which the plaintiffs together can as a matter of course be entitled to their 15/16th share therein. It is not disputed before us that if the above items too formed part and parcel of Azeez's estate then the plaintiffs' claim for entitlement to their legitimate share therein would be unassailable. The Court found that items 1 and 7 to 10 do form part of the estate of Azeez. Before us, the first defendant as the appellant challenges the said finding. We shall, therefore, take up. the relevant material before us to consider whether the ultimate conclusion of the Court below is correct.
7. We shall now deal with item-1. Item 1, as would be seen hereinafter, consists of a house and a site around it. The Court below held that the first defendant was entitled to a 3/5th of the site and 3/5th of the house and decreed accordingly. But the first defendant's claim is that she would be entitled to the entirety of the site and she has obviously no quarrel over the finding that she was entitled to the 3/5th share in the superstructure. The question is whether the appellant is entitled to the entirety of the site.
8. We shall deal with the other question whether the 2/5th of the superstructure which admittedly belonged to Azeez was removed by him and that the superstructure as it stands entirely belongs to the. appellants or not. Item 1 is equatable to item 131 in an earlier suit between strangers to this litigation. Though the learned Judge felt some difficulty in identifying item 131 in the other suit which we shall presently refer to with item 1 in the present suit, we do not find any such difficulty as the descriptions of the property as given in the earlier proceedings do tally in material particulars with item 1 of the suit schedule. In fact, it is by now established that boundaries prevail over the area and if there is identity in two different instruments regarding the boundaries of a property, then there is little difficulty in accepting that the two properties which are the subject-matter of independent descriptions in the two instruments as above are one and the same. That has happened in this case. We have compared the boundaries of item 131 in the earlier suit with item 1 in the present suit. They are similar and we, therefore, find that the earlier item 131 is the same as item 1 in the present suit.
9. What is this item 131 in the suit is the next question. In O.S. No. 43 of 1944 on the file of the Subordinate Judge of Cuddalore there was an earlier litigation with which we are not materially concerned. But in so far as the matter in question is concerned, we wish to refer to the earlier suit O.S. 43 of 1944 (hereinafter referred to as the earlier suit) for the purpose of identity of the property with item 1 in the present action. Under Ex. B-31 a memo of compromise was filed in Court in the earlier suit under which item 131 was allotted to one Hamid Bi, the plaintiff in that suit. What was allotted to her was a ground in item 131, the compound walls and two sites and the entire northern and southern walls of the house including the well and trees standing on the suit site. In the same exhibit, the building and the entire superstructure in item 131 were treated separately and in case it became necessary that the said building and the superstructure in item 131 had to be sold, then the sale proceeds should be divided amongst the plaintiff, the first defendant and the second defendant in the proportion of 1/5th, 2/5th and 2/5th - respectively. A fair reading of Exhibit B-31 is enough to rationally opine that the subject-matter of item 131 in the earlier suit was not only a vacant site but also a superstructure which was obviously in a portion of it. In order to set at naught any controversy about the understanding of the content of item 131 in the earlier suit, the learned Counsel for the appellant filed C.M.P. No. 14853 of 1977 and wanted leave to file additional document. The document now sought to be produced is the extract of the suit register itself. In this, there is again the repetition of the clause contained in the memo, of compromise which has already been referred to. The trial Judge was of the view that as Exhibit B-31 was only a memorandum of compromise, it would be difficult in the absence of any other corroborative evidence to accept the recitals therein. Mr. Ratnam, the learned Counsel for the appellant, in order to place the subject-matter beyond controversy has sought for leave to file this additional document in C.M.P. No. 14853 of 1977. In order to render justice we have allowed the said application. We have perused the suit register Exhibit C3, compared it with Exhibit B-31 and we are satisfied that item 131 in the earlier suit consisted of not only a site but also a superstructure. It is clear from the recitals in Exhibit B-31 read with Exhibit C-3 that the entire site which formed part of item 1 of the suit schedule together with a 1/5th share in the superstructure therein was allotted to Hamid Bi. Thereafter, this property was the subject-matter of three more registered documents. Under Exhibit A-11, dated 14th June, 1949, Azeez exchanges some of his properties in favour of the second defendant in the earlier suit and obtains in turn a 2/5th right in the superstructure. Exhibit B-32 dated 25th June, 1949 is yet another document to show that the first defendant purchased 2/5th share in the superstructure from the first defendant in the earlier suit. Under Exhibit B-33 dated 22nd April, 1950, the plaintiff in the earlier suit sold the entire site and her 1/5th share to the first defendant. The Cumulative effect of Exs. A-11, B-32 and B-33 is that the first defendant became the owner of the entirety of the site and also the owner of a 3/5th share in the superstructure. In the light of such disclosures made, we are unable to agree with the learned Judge that the first defendant is entitled to 3/5th of the site only. Though the first defendant would rather put her case high by stating that 2/5th of the superstructure which admittedly belonged to Azeez, who got it under Ex. A-1l, was removed by him, yet, Mr. Ratnam is unable to lay his hands upon any clinching material to substantiate the appellant's case. The result of it is that the first defendant would, therefore, be declared to be entitled to the entirety of the site and 3/5th of the superstructure and what would be available for the purpose of division amongst the heirs of Azeez would be the 2/5th share in the superstructure as above. To this extent, the judgment of the Court below is modified.
10. We now come to item 7 to 10. There is no dispute that at all material times, this property formed part of the estate of Azeez. Under Exhibit B-1 dated 12th March, 1957 this property was usufructuarily mortgaged by Azeez in favour of the father of the 4th and 5th defendants. The first defendant's case is that Azeez gifted over this property when it was subject to such a usufructuary mortgage and there was also a contemporaneous direction, though orally, that the first defendant pursuant to the said hiba should discharge the prior usufructuary mortgage. It is not in dispute in this case that the earlier usufructuary mortgage was discharged by the first defendant. This is seen from the endorsement in Exhibit B-1 which clearly makes out such a conduct on the part of the first defendant. This is proof positive that the first defendant acted upon the gift. There is also evidence which no doubt is posterior to the time of the gift as above to show that, the first defendant was publicly and openly recognised as the owner of the property which was the subject-matter of the gift as above. The chitta extract Ex B-11 as also the kist receipts Exs. B-12 to B-23 taken one in conjunction with the other do really reflect upon the indefeasible right of the first defendant to the above items of property. She was openly claiming the properties as fully owner thereof. We have already seen that she acted upon the gift by discharging the usufructuary mortgage. She further asserted her title to the properties by altering in the mutation proceedings, the name of the earlier owner and continued to exercise rights of ownership therein by paying public dues thereon. The learned trial Judge was of the view that in the absence of a written instrument evidencing hiba, which according to him was the usual mode by which Azeez was gifting properties to his kith and kin and as the mutation proceedings were effected, according to the learned Judge, after the death of Azeez, and the kist was paid only after 1966 when Azeez died, it cannot be surely and certainly said that such conduct of the first defendant in paying public dues or securing her name as the registered owner of the property is a positive indicia of exercise of rights of ownership in the property. He would also hold the view that a hiba is not possible when at the time when the gift is made, physical possession of the property is not delivered to the donee by the donor. According to him, one of the essential elements to constitute a complete gift under the Muslim Law is physical and corporeal delivery of possession of the property and as such possession in the circumstances of the case is not possible, it cannot be said that there was a hiba within the meaning of the personal law of the parties and this by itself was sufficient, according to the learned Judge, to negative any title as claimed by the first defendant in items 7 to 10.
11. We shall take up the last contention first. Though ordinarily and in accordance with the literal understanding of the definition of hiba under the personal law of Muslims the delivery of possession which ordinarily would mean physical possession of the subject-matter of the gift is a condition precedent, yet, it has been consistently held that such possession which the subject-matter is susceptible of and capable of at the time when the hiba is made, if given would be a valid substitute and equation for corporeal delivery or physical delivery of the subject-matter and even in such circumstances, the hiba would be a valid gift.
12. At one time, there was a controversy whether a gift of an equity of redemption as in this case was valid at all. We have seen that the property was usufructuarily mortgaged under Exhibit B-1. The first defendant's case is that it was gifted to her orally, which is possible under the Muslim law, by her husband when the property was subject to the aforesaid mortgage with possession with the father of defendants 4 and 5. The question is whether a gift by a mortgagor of his equity of redemption is possible at all. As we said, delivery of possession, if understood as the sine qua non under all circumstances, of the subject-matter of the gift, then, on such a wordy understanding of one of the terms of a hiba, such a gift would be hit by the principle underlying it. But as observed by the Judicial Committee, taking possession of the subject-matter of the gift by the donee either actually or constructively is sufficient to complete the gift. Therefore, sufficient inroads were made in very early times into the necessity to deliver physical possession of the subject-matter of gift in order to make it a valid gift. The Bombay High Court, however, took a different view that a gif| of equity of redemption where the mortgagee is in possession of the mortgaged property at the date of the gift is not valid. Many of the High Courts in our country took a different view. It appears that even the Bombay High Court watered down their earlier strict view of the position as is seen from the illustration given by the author Mulla in the eighteenth edition of the Principles of Mahomed an Law at page 154. The illustration runs as follows:
A owns six immovable properties. He mortgages three with possession to M. He then makes a gift of all the six properties to D and puts him in possession of the three properties not mortgaged to M. The High Court of Bombay has held that in such a case the gift of all the six properties is valid....
This puritanic view of the Bombay High Court itself is no longer the view of that High Court. Further, a Division Bench of the Calcutta High Court stated in Para Prasanna Sen v. Shandi Bibi I.L.R.(1922) Cal. 68.
In British Courts the Mahomedan Law of Gift is administered as between Mahomedans on the ground of equity and good conscience....
Therefore, equity made a sufficient dent upon the necessity to deliver physical possession of properties in order to make a complete and valid gift. The learned Judges in the said decision continued to say:.We are of the opinion that the right of the equity of redemption which is under consideration in this case and such similar rights which are termed in some of the decided cases as incorporeal rights, as. distinguished from the corpus, may, in view of the exigencies and necessities of modem conditions and conception of legal rights of property, be subjects of a valid gift, the mode of delivery of possession varying according to the nature of the right conveyed.
13. Hidayatullah, C.J., as he then was in Munni v. Bai Abdul Gani : AIR1959MP225 . in his usual style made the following observations:.three conditions which are necessary for a valid gift under the Muhammadan, Law are : (1) manifestation of the wish to give on the part of the donor; (2) acceptance of the donee, either expresslly or impliedly and (3) taking of possession of the subject-matter of the gift by the donee, either actually or constructively....
Dealing with the third aspect, the learned Chief Justice stated that delivery of possession can be made in such manner as the subject of the gift is susceptible of.
14. Another learned author Tyabji on Muslim Law, Fourth Edition at page 343 reiterated what the other author stated and added that possession of the equity of redemption of immovable property in the possession of a mortgage may be transferred by the donor giving to the mortgagee notice of his having conveyed to the donee the property subject to the mortgage and permitting the donee to exercise all acts of ownership that may be exercised by the owner of the equity-redemption.
15. Therefore it follows that constructive possession of the subject-matter of the gift provided it could be made out in a given, case would be sufficient to make a hiba valid notwithstanding the fact that physical delivery of the same has not been given. It is only such possession as the subject-matter is capable of or susceptible of that could be thought of and if once such available possession is given by the donor to the donee and as a follow-up, the donee exercises rights of ownership over the property taken over by him though constructively that would be sufficient evidence to establish that there was a valid hiba as is known in Mahomedan Law. We have no hesitation in accepting the contention of Mr. Ratnam that in the instant case, there is evidence not only by conduct but also by express intention and assertion of title over immoveable property by the first defendant for a considerable length of time that the hiba claimed by her from her husband is true and ought to be true. The mere fact that there is no instrument evidencing such a gift cannot be made much of as under the personal law of the parties, an oral gift is also possible. We are unable to agree with the uncharitable conclusion of the trial Judge that the kist receipts do not possibly show that they were paid before the death of Azeez. They do not establish that kists were paid only after his death. In any event, the discharge of the mortgage which is not in dispute and which was made by the first defendant coupled with her continuous conduct in dealing with the property which was in her constructive possession do, in our opinion, establish the hiba. We are, therefore, unable to agree with the Court below that items 7 to 10 are partible properties which are to be included and treated as the estate of Azeez. A.S. No. 358 of 1974 is, therefore, allowed.
16. In the earlier portion of our judgment, we have referred to the absence of Mr. Thillai Villalan, the learned Counsel for the respondents in A.S. No. 358 of 1974 and A.S. No. 550 of 1974. The learned Counsel appeared today before us and made certain representations in connection with the facts, circumstances and the documents already on record in the above two appeals, so as to sustain the judgment of the trial Court. We once again heard counsel and in this behalf, therefore, our earlier observations that the appeal was heard in the absence of the contesting respondents cannot survive and does not. Even after hearing Mr. Thillai Villalan, we are not persuaded to change our view and our conclusions arrived at already in the two appeals. We may add, however, that in A.S. No. 358 of 1974, 2/5th of the superstructure in item-1 was still to be treated and considered as partible property to which all the heirs and sharers to the estate of Abdul Azeez would be entitled in accordance with their legitimate shares.
17. We now pass on to A.S. No. 708 of 1977. This was a case filed by one Subramania Nadar against one R.B. Govindasami Naidu figuring as the first defendant and defendants 2 to 5. We are maintaining the description of the parties as is referred to in O.S. No. 43 of 1970. R.B. Govindasami Naidu, the first defendant in the suit, numbered as O.S. No. 48 of 1973 on the file of the Sub-Court, Chidambaram, the decision against which is appealed against in A.S. No. 708 of 1977 was the mortgagee who was in possession of the suit properties, he having secured such a mortgage with possession under Exhibit B-1 from Azeez. We have already seen that under cover of the endorsement made in Exhibit B-1 itself, on 10th March, 1963, Mr. Govindaswami Naidu is to be said to have delivered possession of the suit properties to the first defendant who paid off the mortgage by reason of the hiba which was the subject-matter of the appeal in A.S. No. 358 of 1974. Subramania's case is that after Fathima Beevi secured such possession from R.B. Govindaswami Naidu, she leased the property to him under Exhibit C-2 (marked as such by virtue of our allowance of the application for filing additional documents, namely, C.M.P. No. 1723 of 1978) Subramania's further case is that he was in possession of the suit properties by virtue of the lease Exhibit C-2 and in or about 1968, one Kesava Padayachi and eight others sought to interfere with the possession of the suit property alleging that they got a lease of the very same properties from the plaintiffs and the 6th defendant. Finding that their attempt to secure possession which they demanded of the suit properties was not acceded to by Subramania, they filed O.S. No. 545 of 1968 on the file of the District Munsif's Court, Chidambaram and sought for an injunction as against Subramania as the lessee of the first defendant from interfering with their entitlement to possession of the suit properties. This is seen from Exhibit B-48 which is the plaint filed in that suit. Along with the presentation of the suit, I.A. No. 1161 of 1968 was also filed by Kesava Padayachi and others as against Subramania and the first defendant seeking for an injunction restraining the first defendant and Subramania from interfering with their lawful possession. In fact, it is alleged in Exhibit B-48 that Kesava Padayachi and others were let into possession by Azeez himself and after the death of Azeez, some of his heirs allowed them to continue in possession and it was in such circumstances, they got into possession of the suit properties and interference by Subramania on the strength of Exhibit C-2 was unwarranted. This application for interim injunction was ordered. An attempt was made to vacate the order of interim injunction which was obviously taken out by Subramania in that very suit. This was dismissed as is seen from Exhibit B-49 dated 27th October, 1969 in and by which the order of interim injunction was made absolute. Finally, for reasons which are not very clear, on 4th March, 1970, Kesava Padayachi withdrew the suit and reported that he was not pressing the same. When this was the position, the present suit O.S. No. 48 of 1973 on the file of the Sub-Court, Chidambaram was filed by Subramania impleading R.B. Govindasami Naidu as the first defendant and defendants 2 to 5 as defendants in the above suit. The reason for impleading defendants 2 to 5 as defendants to the present action is not too clear.
18. The claim of the defendants 2 to 5, as already stated in the other two appeals, is based on a purchase of the plaintiff's share in suit items 7, 8 and 10 as sharers in the estate of Azeez. This purchase was under Exhibit B-2 dated 5th April, 1961. Finding that the plaintiffs were no longer interested in a portion of the suit property or for reasons not again clear, Subramania impleaded only Govindasami Naidu, the quondam mortgagee and defendants 2 to 5 as party-defendants to the action and he did not implead his lessor, the first defendant and other proper parties to the action. This is only by the way. On the strength of Exhibit C-2 which is the lease deed under which Subramania claimed possessory rights in the suit properties, he prayed for a declaration that he was entitled to rights under the Cultivating Tenants' Protection Act and for other ancillary reliefs. The Court below found that Subramania was not in possession of the suit property and, therefore, he was not entitled to the declaration as prayed for. Subramania appeals.
19. Mr. Ratnam, the learned Counsel for Subramania contends that after the disposal of the suit filed by Kesava Padayachi which terminated on 4th March, 1970, under Exhibit B-50, there was correspondence between Kesava Padayachi and others on the one hand and Subramania on the other. On a reading of Exhibit C-4 and C-5 which were notices exchanged between the above two parties and which documents also were received by us in appeal while allowing C.M.P. No. 1728 of 1978, it does not take the case of Subramania further excepting to say that Subramania also had an interest in the usufructs which were raised on the suit properties. In fact, the case of the parties is that casuarina worth about Rs. 9,000 was raised on the suit lands and it was Subramania who raised it. There were disputes about it. On a reading of Exhibits C-4 and C-5, it is clear that a sum of Rs. 3,000 was received by Subramania and the balance was paid over to Kesava Padayachi and ultimately nothing happened. Exhibits C-4 and C-5 do not clinchingly point out as to who was or who continued in possession of the suit properties after the disposal of the suit under Exhibit B-50. It is in these circumstances, the question arises whether Subramania is right in having impleaded only Govindasami Naidu and defendants 2 to 5 as a party defendants to this action. One would have expected, for a fuller and complete adjudication of the rights claimed by Subramania for him to have impleaded not only the first defendant but also all the heirs of Azeez, so that there could have been a hearing of the case in the presence of all proper parties. What defendants 2 to 5 secured under Exhibit B-2 was only a right over a part of the suit properties, they having purchased it from the plaintiffs under Exhibit B-2. Even they, as alienees had only a right to file an independent suit for partition and obtain possession of their share after it is demarcated and allocated to them in such a suit. Instead of that, they attempted to enter into possession of the totality of the suit property on the strength of Exhibit B-2 and added that there was such lawful possession of the entirety of the-suit properties by Kesava Padayachi and others as is seen from Exhibit B-4. Exhibit B-4 is a document which touches on the rights over immovable property. As it is unregistered, it cannot be looked into for any purpose and rightly, therefore, the learned Judge would not rely upon Exhibit B-4 and rejected it as inadmissible. The sheet-anchor of the case of defendants 2 to 5 is Exhibit B-4. But for the said document, they have no semblance of a possessory title over the property though under Exhibit B-2 they could project a right of ownership over only a portion of it. But, only some interested persons are parties to this action. It is in this way we characterise the suit of Subramania as one instituted not against all proper parties or necessary parties.
20. When the suit was set for hearing Subramania's case was that he having entered into possession of the property by virtue of Exhibit C-2 which was a lease deed entered into between himself and the first defendant, he continued in such possession and in substantiation of that contention, Mr. Rathnam appearing for him before us would rely upon the entries in the adangal made in the year 1971, and thereafter. These entries in the adangal marked as Exhibit B-53 to B-56 were rightly rejected by the Court below with the observation that those entries having been made after the suit in O.S. No, 43 of 1970 was filed, no weight could be attached to them. We are of the view that this is not the way in which a fair appraisal ought to be given to such records. It really Kesava Padayachi at one time or defendants 2 to 5 at any other time as they claimed, came into possession of the suit properties, nothing prevented them from causing such entries to be made in the adangal basing on such judicial, lawful and physical possession. No such attempt has been made. But on the other hand, the first defendant by virtue of the hiba and her discharge of the mortgage in favour of Govindasami Naidu and obviously relying upon the recital that she secured possession of the property from Govindasami Naidu who was in possession of the same as mortgagee in possession sought for such entries being made in the adangal and was successful in securing them. Exhibits B-53 to B-56 no doubt support the appellant's case. But the point, however, in the present case is whether the entries Exhibits B-53 to B-56 by themselves are sufficient for Subrarnania to seek for the declaration' sought as he did in this Court below. The telling piece of evidence which has not been got over in spite of the able arguments of Mr. Ratnam ii the judgment and connected records in O.S. No. 545 of 1968 on the file of the District Munsif, Chidambaram. Under Exhibit B-49, it is seen hat Kesava Padayachi secured an order of injunction restraining the first defendant and Subramania from interfering with their possession. The pronouncement was made on 27th October, 1969. Kesava Padayachi, for reasons not known, and certainly not clear did not press his suit a few months thereafter and it was dismissed as not pressed on 4th March, 1970, vide Exhibit B-50. The normal presumption is that Kesava Padayachi continued in possession of the property till 4th March, 1970 and immediately thereafter. Excepting for the entries in the adangal which were made in the year, 1971, showing the first defendant Fathima Beevi as the person in possession of the suit properties, there is no other contemporary record to show that Kesava Padayachi and others who were admittedly in possessison of the suit property till 4th March, 1970 ever surrendered possession to anyone including defendants 2 to 5. We have already stated that the story of defendants 2 to 5 that they secured such surrender under Exhibit B-4 is not believable because the document is not admissible and there is no further attempt to prove this allegation. In this paradoxical state of affairs, the difficult question that arises is as to who is in possession of the suit property. The adangal register speak as if the first defendant was in possession in 1971. The decision of a competent Court declared that Kesava Padayachi was in possession of the property in 1970. The empty claim of defendants 2 to 5 is that they got possession of it through Kesava Padayachi under Exhibit B-4 which we have discarded since it is legally inadmissible in evidence. Certainly, therefore, in such a nebulous state of affairs, a declaration as sought for by Subramania cannot be granted. But Mr. Ratnam still harps upon Exhibit C-2 as the foundation for his entitlement for the grant of the relief that he is entitled to a declaration that he ie a cultivating tenant. Such an entitlement is based on physical possession-We have expressed on more than one occasion in the course of our judgment that we are unable to pinpoint as to who is in actual possession of the property having regard to the ambulatory evidence let in in this case by both parties. One other argument of Mr. Ratnam is that the claim of defendant 2 to 5 that they are in possession of the suit properties in fanciful for the reason that they had at all material times only a right of ownership over a part of the suit properties and not over its entirety. In those circumstances, even if they have been inducted into possession by Kesava Padayachi and others, they could not legitimately resist the possession of Subramania of the rest of the property which, by reason of the finding of ours regarding the sustainability of the hiba in favour of the first defendant, the first defendant can lawfully induct Subramania into the rest of the property and to that extent at least, Exhibit C-2 has to be sustained. There is no doubt force in this contention. But in the absence of definite and clinching evidence to show that Subramania ever entered into physical possession of this property, at some point of time, it would be difficult to hold that the appellant is entitled to a declaration that he is a cultivating tenant. In these circumstances and for the reasons above stated, but not on the same grounds as was considered by the Court below, that part of the judgment of the trial Court regarding the issue under consideration is sustained.
21. In passing, however, we may observe that it is for Subramania to work out his rights in a manner known to law to secure such declarations to which he would be entitled to and the judgment in these proceedings will not be a bar to him because no finding has been given in this case by us about the nature of possession which he could claim over the suit property. It is for him to work out such rights in the presence of all the srurers including defendants 2 to 5 who claimed to be the alienees of a part of the property by reason of Exhibit B-2.
22. A.S. No. 708 of 1977 inter alia concerns itself with items, 7, 8 and 10. The other item which is also the subject-matter of this appeal is item 9. Subramania stated that he is the owner of this property and has sought for a declaration as to his title by reason of a purchase of the property from the predecessor-in-interest and for a consequential injunction restraining the defendants from laying any manner of claim or interest over it. Here again, Govindasami Naidu is an unnecessary party. Defendants 2 to 5 have been impleaded to this action by Subramania on the ground that they projected an interest over a part of this item by reason of their purchase of the share of the plaintiffs under Exhibit B-2.
23. The short question to be considered is whether item 9 is to be deemed to be still in the family of Azeez susceptible to jjartition amongst the sharers after the death of Azeez. Admittedly item 9 formed part of the estate of Azeez. Ordinarily, it ought to have been shared by all the sharers. But the hiba which we have sustained in the earlier part would entitle the first defendant alone to claim this property. But whether the property still could be considered so in view of certain supervening circumstances which we shall presently refer to is an independent matter. It is the common case of all parties that in so far as item 9 was concerned, Azeez. himself did not pay the pnblic dues and in order to realise such dueS) the sale notice Exhibit B-24, was issued by the Special Loan Deputy Tahsildar for the sale of this item of property amongst others. No doubt, this notiee was sent only to the first defendant and not to all the sharers. Not having had satisfaction in spite of the publication of the sale notice in the matter of the clearance of arrears of public dues, the property was brought sale and one Mohamad Ali Maracair purchased the property as is seen from Exhibit B-25. Exhibit B-25 is an order of the Revenue Divisional Officer showing that Azeez was in arrears of loans and he defaulted in paying them and that there was no irregularity m the publication of the notices and that, therefore, he was confirming the sale in favour of Mohamad Ali Maracair who was the highest bidder in the public auction held for the purpose. Pursuant to such a purchase, Mohamed Ali Maracair paid kists also, as is seen from Exhibit B-27. Finally Mohamad Ali sold this property to Subramania under a registered sale deed marked as Exhibit B-51 dated 25th November, 1971. The title of Subramania, therefore, is traceable to the title of Mohamed Ali who in turn purchased the property in a public auction held for the purpose of the realising public dues under the Revenue Recovery Act.
24. Mr. Thillai Villalan's contention is that as the notice of sale has not been sent to all the sharers, it is vitiated and that Mohamed Ali Maracair is none else than the brother of Fathima Beevi who is the first defendant. Both these objections do not appeal to us as sustainable ones. We have seen that the Revenue Divisional Officer under Exhibit B-25 has recorded that the notices issued in connection with the public sale were proper and in accordance with the prescribed procedure. Even otherwise, the first defendant who by then paid off the mortgage amount which she had to pay by virtue of the direction given to her contemporaneous with the hiba made on the property by her husband was probably recognised by the Revenue Department as the only person entitled to the property and who had an interest in it. Even otherwise, the non-service of notice to the other sharers would not vitiate the sale and make it void. It might be voidable. But it stood the test of time for nearly six years until the filing of the present suit. No one including the plaintiffs who are the predecessors-in-interest of defendants 2 to 5 ever objected to the manner in which the property was publicly sold. The first contention, therefore, fails.
25. The second contention is that the property was purchased by the first defendant's brother. This would not tilt the matters at all. In a public sale, any one is entitled to bid and purchase the property which is the subject-matter of public sale. The fact that the highest bidder happens to be related to one of the parties to the litigation cannot be the basis of attack on the validity of the public gale itself. We held that Mohamed Ali Maracayar became the owner of item 2 of the plaint schedule by virtue of his purchase under Exhibit B-25 and that his later sale under Exhibit B-1 to Subramania is valid and enforceable. The lower Court was not right in having rejected the relief to Subramania over this item also. We, therefore, set aside the judgment of the trial Court in so far as it has held against Subramania in relation to item 9 of the suit property and hold that Subramania is entitled to the declaration as prayed for ever item 9 and the defendants who claimed to be in possession of the property are bound to deliver possession of the same irrespective of the other controversies in the domestic litigation already referred to above. This appeal in port is allowed. But there will be no order as to costs. If as represented by Mr. Thillai Villalan, defendants 2 to 5 have raised casuarina crop over item 9 of the plaint schedule, the lower Court shall make sufficient amends available in law in their favour at the time of directing physical delivery of possession of this item to the appellant.
26. As a result of our judgment in A.S. No. 708 of 1977, no further orders are necessary in CM.A. No. 706 of 1974. It is dismissed.
27. In all the appeals, the party who is successful shall bear his or her costs.