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Pappayammal Vs. Palanisamy, Sellammal (Died) and Rukmani - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai High Court
Decided On
Case NumberSecond Appeal No. 1722 of 1993
Judge
Reported inAIR2005Mad431; 2005(3)CTC292; (2005)3MLJ32
ActsHindu Succession Act, 1956 - Sections 14, 14(1) and 14(2); Code of Civil Procedure (CPC) - Sections 100 - Order 41, Rule 27
AppellantPappayammal
RespondentPalanisamy, Sellammal (Died) and Rukmani
Appellant AdvocateS.V. Jayaraman, Senior Counsel for N. Manokaran, Adv.
Respondent AdvocateM. Duraisamy, Adv. for respondent 1 and ;V.K. Muthusamy, Adv. Senior Counsel, for V. Bharathidasan for respondent 3
DispositionAppeal dismissed
Cases Referred(The Karnataka Wakf Board vs. State of Karnataka and
Excerpt:
- m. karpagavinayagam, j. 1. pappayammal, appellant herein, filed a suit for partition and separate possession against the defendants 1 and 2 and the said suit was dismissed. aggrieved by the said dismissal, she filed an appeal before the lower appellate court, which, in turn, confirmed the same and dismissed the appeal. hence, this second appeal, as against the concurrent judgments.2. the case of the plaintiff is as follows :one kuppanna gounder purchased two items of the suit property under ex.b-1, dated 14.12.1932, and ex.b-2, dated 19.07.1934 respectively. the said kuppanna gounder had two wives, namely, muthammal and sellammal. he got a son through his first wife, muthammal, by name duraisamy gounder. after the death of muthammal, kuppanna gounder married sellammal, the second.....
Judgment:

M. Karpagavinayagam, J.

1. Pappayammal, appellant herein, filed a suit for partition and separate possession against the defendants 1 and 2 and the said suit was dismissed. Aggrieved by the said dismissal, she filed an appeal before the lower appellate Court, which, in turn, confirmed the same and dismissed the appeal. Hence, this Second Appeal, as against the concurrent judgments.

2. The case of the plaintiff is as follows :

One Kuppanna Gounder purchased two items of the suit property under Ex.B-1, dated 14.12.1932, and Ex.B-2, dated 19.07.1934 respectively. The said Kuppanna Gounder had two wives, namely, Muthammal and Sellammal. He got a son through his first wife, Muthammal, by name Duraisamy Gounder. After the death of Muthammal, Kuppanna Gounder married Sellammal, the second defendant, through whom, the first defendant Palanisamy was born. The said Kuppanna Gounder died on 30.07.1939, leaving behind his son Duraisamy Gounder, born through his first wife Muthammal, and the second wife Sellammal, the second defendant, and her son Palanisamy, the first defendant. The plaintiff Pappayammal is the wife of the said Duraisamy Gounder. In the year 1956, there was a partition through the deed Ex.B-22, in which some properties were allotted to Duraisamy Gounder. Thereafter, he settled the same in favour of his wife Pappayammal, the plaintiff, on 04.09.1962, through the settlement deed Ex.B-26. However, the suit properties were not partitioned then. Later, Duraisamy Gounder died. After his death, the suit properties were in joint possession and enjoyment, both by the plaintiff and the defendants 1 and 2. The plaintiff made a request to the defendants 1 and 2 for partition of the suit properties. The said request was turned down. Hence, the suit for partition and separate possession.

3. The case of the defendants is as follows :

Palanisamy, the first defendant, is the son of second defendant, namely, Sellammal, who is the second wife of Kuppanna Gounder. Since the second defendant was married to Kuppanna Gounder as second wife, the suit properties 1 and 2 were handed over to her, by way of family arrangement, towards her maintenance. After the death of Kuppanna Gounder, the second defendant continued to be in possession of the said properties and has been paying kists. She got patta in her name in the year 1971. Since the said properties were allotted to the second defendant for her maintenance in the family arrangement, they were not included both in the partition deed, Ex.B-22, dated 30.07.1956, and in the settlement deed, Ex.B-26, dated 04.09.1962. As such, the second defendant is entitled for the enlargement of her absolute right, as per Section 14(1) of the Hindu Succession Act, in pursuance of family arrangement as well as adverse possession.

4. On the basis of the above pleadings, necessary issues were framed. During the course of trial, on behalf of the plaintiff, Exs.A-1 and A-2 were marked and the plaintiff was examined herself as P.W.1. On the side of the defendants, second defendant was examined as D.W.1; first defendant was examined as D.W.2 and two other witnesses as D.Ws.3 and 4. On their side, Exs.B-1 to B-26 were marked.

5. The trial Court, having considered the materials, accepted the case of the defendants and dismissed the suit. The appellate Court also confirmed the same in the appeal, filed by the plaintiff. The findings of both the Courts below are as follows :

'(A) In respect of the suit properties, kist was originally paid in the name of Kuppanna Gounder, who was the absolute owner of the properties, up to 1941. Thereafter, the kist was paid in the name of the second defendant Sellammal under Ex.B-3 (for the period from 1933 to 1958). There was a partition between Ramanna Gounder, his son Kuppanna Gounder and his son Duraisamy Gounder in the year 1956. The suit properties were not included in the partition deed, Ex.B-22. The second defendant had been in possession, by virtue of family arrangement, even from the year 1933, and, therefore, her limited right was enlarged to absolute right, as per Section 14(1) of the Act, which came to be introduced in the year 1956. The suit item No.1 was leased out by the second defendant exclusively to D.W.3, Arumugam, under Ex.B-23, dated 22.05.1963, attended by D.W.2. On the same day, the portion of the property was leased out by the second defendant in favour of one Deivasigamani, D.W.4, under Ex.B-24. From this, it is clear that the properties were exclusively enjoyed by the second defendant, which were leased out to D.W.3 and D.W.4.

(B) Admittedly, Duraisamy Gounder had settled the properties, allotted to him in the partition, held in the year 1956, in favour of his wife Pappayammal, plaintiff, under Ex.B-26, dated 04.09.1962. In the said deed, there is no reference about the suit properties. This also shows that the suit properties were in possession of the second defendant, by virtue of family arrangement. Since there is no reference about the suit properties in both the deeds, namely, partition deed, Ex.B-22, dated 30.07.1956 and under the subsequent settlement deed, Ex.B-26, dated 04.09.1962, the evidence of the second defendant, to the effect that the properties were handed over to her by way of family arrangement, has to be accepted.'

Challenging the said findings, the plaintiff has filed this Second Appeal.

6. While admitting the Second Appeal, the following substantial question of law was framed :

Whether the finding of the Courts below, that the second respondent proved her hostile title coupled with exclusive possession and enjoyment to the knowledge of the appellant, is correct in law or not?

7. Mr. S.V. Jayaraman, learned Senior Counsel, representing the counsel on record for the appellant, would request this Court to hear the petition filed by the appellant, pending the appeal, in C.M.P.No.13405 of 1997, under Order 41 Rule 27 CPC, to receive the additional documents, before elaborating the arguments on the strength of the substantial question of law.

8. It is noticed from the records that the said petition, filed under Order 41 Rule 27 CPC, was entertained by this Court on 09.09.1997. When the matter came up before this Court, this Court passed an order on 03.12.1997, directing the said petition to be posted along with the main appeal. It is also brought to the notice of this Court that even before the main appeal was taken up for final disposal, already, counter affidavits were filed by both the first respondent, dated 30.04.2004, and the legal representative of the second respondent, dated 31.08.2004, in the said petition.

9. As some more additional documentary evidence is sought to be adduced on behalf of the plaintiff/appellant before this Court for considering the same to decide the appeal, it would be appropriate to decide the issue with reference to the question, whether this petition to receive the additional documents pending the appeal would be entertained or not, before proceeding further.

10. The reason given in the affidavit, seeking to receive the four additional documents as additional evidence, as submitted by the learned Senior Counsel, is that the plaintiff/appellant came to know about the existence of the four documents only in the month of August, 1995, and immediately after collecting the certified copies of those documents, the plaintiff/appellant has chosen to file the petition, in order to establish that the suit lands were in joint possession of her husband and the first respondent and that in the light of the statement given by the second respondent before the Land Acquisition Officer, the suit properties belong to Duraisamy Gounder and Palanisamy, son of the second respondent. It is further contended that only after filing of the Second Appeal before this Court, the appellant had an occasion to search for the old records relating to the acquisition proceedings in the year 1954 and obtained the above documents and, as such, there was delay in filing the petition, to receive the documents as additional evidence.

11. The said petition is hotly contested by both the respondents through separate counter affidavits, stating that even though the said documents relating to 1954 were available, the plaintiff/appellant did not choose to file the same before the trial Court and failure to mark those four documents before the trial Court had resulted in the loss of opportunity on the part of first and second respondents of cross-examining the appellant on these aspects and further, the alleged statement given by the second respondent Sellammal before the Land Acquisition Officer was not a genuine one and since the said Sellammal is now dead, the second respondent has lost opportunity to speak in person about its genuineness or otherwise and, as such, the petition to receive the additional documents is not sustainable both on facts and law and the same is liable to be dismissed.

12. I have heard the submissions on the above aspect.

13. Let us now refer to Order 41, Rule 27 C.P.C., which reads as follows :

'Production of additional evidence in appellate Court : (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But, if-

(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or

(aa) the party, seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or

(b) the appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced, or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an appellate Court, the Court shall record the reason for its admission.'

14. On going through the above provision, it is clear that on three contingencies, the appellate Court can admit additional evidence in appeal viz., (1) Trial Court refused to admit evidence which ought to have been admitted; (2) The party, seeking to produce the additional evidence, had no knowledge of the existence of such additional evidence or could not, after the exercise of due diligence, be produced by him at the time when the case was pending before the trial Court, and (3) The appellate Court requires any document to be produced to enable it to pronounce the judgment or for any other substantial cause.

15. In this case, the suit was filed in the year 1981 and the same was dismissed on 28.02.1991. Thereafter, the plaintiff/appellant filed appeal in A.S.No.105 of 1993, which was also dismissed by the appellate Court on 17.09.1993. Hence, this Second Appeal was filed in the year 1993 and the same was admitted on 23.12.1993. Admittedly, the petition, requesting the Court to receive additional documents, was filed in the Court only on 09.09.1997 i.e., after nearly four years. According to the appellant, through her affidavit, only in the month of August, 1995, she came to know the existence of those four documents, when she had searched for the old records, relating to acquisition proceedings in the year 1954. No explanation has been given, as correctly pointed out by Mr.V.K.Muthusamy, learned Senior Counsel for the respondents, as to why due diligence was not exercised by the plaintiff to collect relevant records even during the trial period.

16. Admittedly, there is no averment in the plaint about the stand now taken, on the basis of these additional documents. It is a settled law, that it is not open to any party, at the stage of appeal, to make fresh allegations and call upon the other side to admit or deny the same. Any such attempt is contrary to the requirement of Order 41, Rule 27 CPC. Additional evidence cannot be permitted in the appellate stage, in order to enable another party to remove certain lacunae present in that case. That principle has to be applied in dealing with the petition of additional evidence, when the appellate Court is unable to pronounce the judgment on the materials before it, without taking into consideration the additional evidence, sought to be adduced by the plaintiff. If this principle is applied to the present facts of the case, it is obvious that the four documents, referred to in the petition, sought to be produced as additional evidence, cannot be said to be more relevant for the issue to be decided and it can very well be said that this Court is able to pronounce the judgment on the basis of the materials placed before the trial Court, without taking into consideration of the documents 1 to 4, sought to be admitted as additional evidence.

17. Furthermore, regarding the first document, which is a statement said to have been given by the second respondent Sellammal to the Land Acquisition Officer, it is clear that it is not the actual statement made by her and it is a statement made by the Recording Officer himself in the land acquisition proceedings and the claim that the second respondent Sellammal had affixed her Left Thumb Impression in the said document cannot be said to be genuine, especially when the second respondent, who is dead and gone, has lost opportunity to speak in person about the genuineness of the same. In addition, the statement in the first document, as to the nature of the suit property as Pitrarjitham, is against the case of the plaintiff herself, because she filed the suit on the ground that the suit properties are separate properties of the deceased Kuppanna Gounder. Document No.2 also, which is an Award dated 29.03.1954, cannot be an admitted document, as there is no oral evidence through proper person, to make the said document. Document Nos.3 and 4 are for taking water from L.B.Canal. As a matter of fact, there is no evidence adduced during the trial, to show that that the husband of the appellant Duraisamy Gounder had been cultivating the lands, raising crops, using L.B.P. water, by producing adangal, payment of kist etc. On the other hand, the records would show that the entire L.B.P. Water Charges were paid by Sellammal. Therefore, these documents cannot be said to be more relevant to decide the issue raised before this Court. Further, without the oral evidence to be adduced through the competent persons, these documents cannot be admitted in evidence, especially when their genuineness is questioned. Therefore, the petition in C.M.P.No.13405 of 1997, to receive the additional documents, is liable to be rejected and the same is, accordingly, rejected.

18. Let us now deal with the main question raised in the Second Appeal, regarding the merits of the same, on the basis of the substantial question of law, framed in this case.

19. According to Mr. S.V. Jayaraman, learned Senior Counsel appearing for the appellant, both the Courts below have wrongly held that the plea regarding adverse possession raised by the defendants has been proved and while the necessary ingredients, regarding the said plea, have been failed to be established, the findings, accepting the said plea, rendered by both the Courts below, are patently wrong and, as such, those concurrent findings are liable to be interfered with under Section 100 C.P.C.

20. The learned Senior Counsel would further submit that the defendants have raised two inconsistent pleas, namely, (i) adverse possession and (ii) claim of title under family arrangement. These two pleas are totally different and distinctive in nature. As as they are contradictory to each other, they cannot go together, as laid down in (ROOP SINGH (DEAD) THROUGH L.RS. V. RAM SINGH (DEAD) THROUGH L.RS.)

21. We may now first deal with the question of 'adverse possession'. It is true that in the written statement, filed by the second defendant in O.S.No.2784 of 1981, dated 13.07.1982, a stand was taken by her that the suit properties were entrusted to her by way of family arrangement, towards maintenance. But, subsequently, in the additional written statement, dated 10.12.1990, the second defendant took a stand that she had perfected title by being in possession for more than a statutory period of 12 years against the plaintiff and, as such, she is entitled for the plea of adverse possession.

22. On going through both these written statements, it is clear that the second defendant has taken an alternative plea of adverse possession through the additional written statement. The question is, whether such a raising of the alternative plea is totally barred In this context, it would be worthwhile to refer to some of the decisions, cited by the learned counsel for both the parties, to find out the answer for the question.

23. In (ROOP SINGH (DEAD) THROUGH L.RS. V. RAM SINGH (DEAD) THROUGH L.RS.), it is held as follows :

'Once it is admitted by implication that the plaintiff came into possession of the land lawfully under the agreement and continued to remain in possession till the date of the suit, the plea of adverse possession would not be available to the defendant unless it has been asserted and pointed out hostile animus of retaining possession as an owner after getting in possession of the land.'

24. In 2000 (3) M.L.J. 785 (Sadasiva Gounder and another vs. Purushothaman), a single Judge of this Court states as follows :

'Of course, in a case where the person sets up title in himself and fails to substantiate the same, the question may arise as to whether such a person can still claim adverse possession. In my view, he can do so.'

25. In equivalent to 2003 (2) LW 303 (P.Subramania Chettiar vs. Tmt.Amirtham and others), this Court has held as under :

'A person asserting title can also claim right by way of adverse possession. Where the occupier has been in open and continuous occupation asserting positive title in themselves and against everyone, the said occupier can claim adverse possession and the pleas of title and adverse possession cannot be said to be inconsistent pleas.'

26. In 1996 KAR 55 (The Karnataka Wakf Board vs. State of Karnataka and others), a Division Bench of the Karnataka High Court would make the following observations :

'22.The plaintiff has taken up an alternative plea that it has perfected its title to the suit property by adverse possession also. In the appeal memo, in para 10 at page No.7, it is contended that the said plea is inconsistent with the plea of title under Issue No.I. It is not possible to accept this contention. It is well settled that the plaintiff can take an alternative plea. The plea regarding title and the plea of adverse possession pleaded by the plaintiff in this case cannot be said to be inconsistent with one another.'

27. In AIR 2001 KAR 470 (A.KRISHNAPPA V. THIMMRAYAPPA), it is observed as under :

'In view of the Ruling of the Division Bench of this Court, it is well within the right of the party in a suit to set up title on one part and also can take up plea of adverse possession in alternative. Both the pleas are held to be alternative and permissible.'

28. This Court, in (N.S.SPANCE V. D.S.KANAGARAJAN AND ANOTHER), on the strength of the decision in (RAME GOWDA V. M.VARADAPPA NAIDU), would hold as follows :

'The contention of the learned counsel for the respondents, that the possession must be without title against a person with original title and then only adverse possession would arise, is not acceptable, since a person, who is in possession of the property, is entitled to take alternative plea.'

29. The above decisions would indicate that though inconsistent pleas cannot be allowed to be entertained, there is no bar for making alternative plea. Suppose in a case where a person sets up title in himself and fails to substantiate the same, alternatively, such a person can claim adverse possession. Thus, it is clear, that the pleas of title and adverse possession cannot be said to be inconsistent pleas.

30. In view of the above dictum laid down by various Courts, there is no difficulty in holding that the claim of alternative plea is not impermissible in law.

31. According to the learned Senior Counsel for the appellant, even assuming that the alternative plea is permissible, the finding regarding adverse possession, rendered by both the Courts below, is wrong, as the main ingredients for proving the said plea have not been established. He would cite the following authorities, to substantiate the same :

i) (NEELAKA PILLAI ALIAS SAROJINIAMMA VS. K.VELU PILLAI AND OTHERS)

ii) 2004 (3) LW 566 (PUSHPAM AND OTHERS VS.K.M.MEERAN AND OTHERS)

iii) 1995 (1) LW 680 (PONNAIYAN VS. MUNIAN (DIED) AND OTHERS)

iv) 2000 (3) MLJ 785 (SADASIVA GOUNDER AND ANOTHER VS. PURUSHOTHAMAN)

v) AIR 1963 MAD 84 (MUHAMMAD KALIBA ROWTHER VS. MUHAMMAD ABDULLAH ROWTHER)

vi) (DEVA (DEAD) THROUGH LRS. VS. SAJJAN KUMAR (DEAD) BY LRS.)

vii) 2001 (1) CTC 109 (JANAKI PANDYANI VS. GANESHWAR PANDA (DEAD) BY LRS. AND ANOTHER)

viii) 2002 (1) CTC 240 (DARSHAN SINGH AND ORS. VS. GUJJAR SINGH (DEAD) BY LRS. AND ORS.)

ix) (V.RAJESHWARI (SMT.) VS. T.C.SARAVANABAVA)

x) 2001 (2) SCC 498 (BALKRISHNAN VS. SATYAPRAKASH AND OTHERS)

xi) (MD.MOHAMMAD ALI (DEAD) BY L.RS. VS. JAGADISH KALITA AND OTHERS)

xii) 2004 (2) LW 623 (AMRENDRA PRATAP SINGH VS. TEJ BAHADUR PRAJAPATI & ORS.)

xiii) 2002 (4) LW 780 (P.CHELLIAH VS. MOTTAYANDI THEVAR (DIED) & OTHERS)

xiv) 2000 (II) CTC 219 (KANNAPPAN VS. PARGUNAN AND 9 OTHERS)

xv) (TAYUB KHAN ALIAS TAYUB SULTAN VS. HAIRUNNISSA BEEVI AND OTHERS)

xvi) 1996 (2) LW 31 (S.SUBBA REDDIAR (DIED) AND OTHERS VS. BHAGYALAKSHMI AMMAL ALIAS GURUVACHI AMMAL AND ANOTHER)

xvii) 2000 (III) CTC 29 (LAKSHMIAMMAL AND ANOTHER VS. C.P.NANJAPPAN AND TWO OTEHRS)

xviii) 1999 (I) CTC 428 (NAGARAJAN VS. RAJAMANI AIYAR AND SEVEN OTHERS)

xix) 1996 (2) LW 811 (RAMAN AND ANOTHER VS. DAKSHNAMURTHY)

xx) 2002 (4) LW 300 (MARAPPA GOUNDER (DECEASED) & OTHERS VS. RAMALINGAM (DECEASED) & OTHERS)

xxi) (S.M.KARIM VS. MST.BIBI SAKINA)

32. The following are the important principles, laid down in the above decisions of this Court as well as the Supreme Court :

i) A party can plead adverse possession only when he admits that another person has got title.

ii) In the case of a co-owner, mere possession, however long it might be, would not constitute adverse possession. The possession must be over the statutory period and there must be clear ouster to the knowledge of the co-owner against whom the adverse possession is pleaded.

iii) As between the co-owners, there must be evidence of open assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the knowledge of the other, so as to constitute the ouster. The burden of making out ouster is on the person, claiming to displace the lawful title of the co-owner, by his adverse possession.

iv) The party pleading adverse possession must state with sufficient clarity as to from when his adverse possession commences and the nature of his possession.

v) When the co-owners are close relations, something more is to be proved, to prescribe title by adverse possession, than a case between two strangers.

vi) It would not be sufficient to show that one co-owner was in separate possession of the property and another co-owner was out of possession.

vii) A single circumstance of payment of tax or mutation of records would not, by itself, establish ouster or adverse possession as against the co-owner.

33. Keeping in mind the above settled principles, we shall go into the question. In this case, it is not the case of the second defendant that the plaintiff or plaintiff's husband was the co-owner of the suit property. As stated above, the second defendant can plead adverse possession only when she admits that the plaintiff has got title. In fact, the title of the plaintiff has not been admitted. On the other hand, it is the case of the second defendant that the suit properties were purchased by Kuppanna Gounder, who is her husband, as separate properties, and, immediately after the purchase, her husband entrusted the suit properties to her, being the second wife, for maintenance, by way of family arrangement. A specific stand is taken by the second defendant through the written statement, denying the title of the plaintiff. She claimed that she alone is the title holder of the properties, since the purchaser of the properties, who had his separate properties, entrusted them to her by way of family arrangement. Therefore, the question of adverse possession would not arise. Consequently, the findings given by both the Courts below, with reference to adverse possession in favour of the second defendant, as correctly pointed out by the learned Senior Counsel for the appellant, are not correct. However, on that ground, we cannot grant a decree in favour of the appellant/plaintiff, in view of the fact that the decree passed by both the Courts below dismissing the suit would be sustained, on the ground that the second defendant has clearly established her title, by virtue of the stand taken by her through the first written statement. In the written statement dated 13.07.1982, filed by the second defendant, she has specifically stated as follows :

'....Immediately after the purchase, the late Kuppanna Gounder had given the suit properties to the 2nd defendant by way of maintenance by way of family arrangement. Eversince then, the 2nd defendant had been enjoying the suit properties exclusively. On the death of Kuppanna Gounder, she had been living separately, enjoying the suit properties separately. At times, she had leased out the suit properties. The very fact that the late Duraisami Gounder and first defendant did not include the suit properties in the partition deed clearly indicates that the suit properties had been treated as the absolute properties of the 2nd defendant. The 2nd defendant who had been enjoying the suit properties as maintenance holder got absolute title on the passing of Hindu Succession Act in 1956. As such, the second defendant has got perfect title to the suit properties. She had been paying kist separately. Patta had been issued in her name exclusively in 1971. Neither Duraisami Gounder nor the first defendant had claimed any right or title over the suit properties. That is why, the late Duraisami Gounder had not included the suit property in the settlement deed dated 4.9.1962. The 2nd defendant built a house and cattle shed in the suit property. The 2nd defendant has been paying house tax to panchayat.'

Even in the additional written statement, filed on 10.12.1990, she would state as follows :

'The second defendant got the suit properties for maintenance from her husband and after his death, she had been living separately and enjoying the suit properties separately. The very fact that the late Duraiswamy Gounder and the first defendant did not include the suit properties in dealing with the other family properties will clearly indicate that the suit properties are absolute properties of the 2nd defendant on passing of the Hindu Succession Act. In any event, the 2nd defendant had perfected title fore more than a statutory period of 12 years against the plaintiff late Duraiswamy Gonder and first defendant.'

34. The above wordings would clearly indicate the main stand taken by the second defendant that she had got absolute title over the suit properties, as the suit properties were entrusted to her, by way of family arrangement towards maintenance and, at the time of introduction of the Hindu Succession Act, 1956, she was in possession of the properties and, as such, she became the absolute title holder of the properties. As indicated above, incidentally, she has taken an alternative plea of adverse possession and ouster. However, the said plea need not be considered, in the light of the finding mentioned above, that the requirements of the said plea have not been established. Therefore, it is manifestly clear that the second defendant made a strong plea through her written statement with reference to the possession of the properties from the year 1932, by virtue of family arrangement, by which the suit properties were entrusted to her towards maintenance.

35. To substantiate the pleadings in the written statements, the second defendant Sellammal, as D.W.1, categorically states that the suit properties were entrusted to her and she has been paying kists from the year 1942, which would show her exclusive possession and enjoyment from the said year. This assertion by D.W.1, second defendant, has been corroborated by the documents Exs.B-5 to B-18, kist receipts, that up to 1941, Kuppanna Gounder had paid kists and, subsequently, the kists have been paid by Sellammal in her name.

36. According to the learned Senior Counsel for the appellant, family arrangement in favour of the second defendant has not been proved in the manner known to law and there is no oral or documentary evidence in support of her case.

37. Let us now see some of the decisions, dealing with the said issue.

38. The following guidelines have been framed by the Supreme Court in (Kale and others vs. Deputy Director of Consolidation and others) :

i) The family settlement must be a bona fide one, so as to resolve family disputes.

ii) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.

iii) The family arrangement may even be oral, in which case, no registration is necessary.

iv) The registration would be necessary only when the terms of the family arrangement would be reduced into writing.

v) Even if bona fide disputes, which may not involve legal claims, are settled by a bona fide family arrangement, which is fair and equitable, the family arrangement is final and binding on the parties to the settlement.

39. In 2001 (1) CTC 112 (A.C.Lakshmipathy and another vs. A.M.Chakrapani Reddiar and five others), a Division Bench of this Court would make the following observation :

'The family arrangement can even be made orally and in which obviously the question of registration does not arise. What is required to be seen is, whether the family settlement is a bona fide one, so as to resolve family disputes and rival claims at a fair and equitable decision or allotment of properties between the various members of the family.'

40. The above guidelines would make it clear that a family arrangement can be made orally and, if made orally, there being no document, no question of registration arises and what is required to be found out is, whether the family arrangement is bona fide or not.

41. Bearing in mind the above guidelines, if we look at the facts of the present case, this Court cannot say that the evidence of D.W.1/second defendant, with reference to the family arrangement and the entrustment of the suit properties to her immediately after the purchase of the properties by her husband, is liable to be rejected as unreliable, particularly when the possession and enjoyment by her has been well corroborated by both oral evidence of D.Ws.2 to 4 and the documentary evidence through Exs.B-3 to B-26.

42. As a matter of fact, it is the case of the second defendant that the suit properties have been frequently leased out by her to third parties for both agricultural purpose and for running a cinema theatre. This fact has been proved by the evidence of D.Ws.3 and 4, who enjoyed all these properties for sometime, as lessees. But for the family arrangement that had been made by the said Kuppanna Gounder by entrusting the suit properties in favour of the second defendant, definitely, these properties would have been included in the earlier partition deed, Ex.B-22, dated 30.07.1956, which was taken place between Ramanna Gounder, father of Kuppanna Gounder; Duraisamy Gounder, husband of the plaintiff; and Palanisamy, the first defendant. Similarly, as pointed out by both the Courts below, when under Ex.B-26, Duraisamy Gounder, husband of the plaintiff, settled the properties, which were allotted to him under the partition deed, Ex.B-22, dated 30.07.1956, in favour of the plaintiff, some reference would have been made about the suit properties. In the light of the absence of the reference about the suit properties in Ex.B-22, dated 30.07.1956, and Ex.B-26, dated 04.09.1962, the evidence of D.W.1/second defendant, who spoke about the family arrangement and continuous enjoyment of the same, assumes significance.

43. As noted above, the second defendant had executed a lease deed under Ex.B-23, dated 22.05.1963, in respect of the suit properties, in favour of Arumuga Gounder, D.W.3. D.W.2 is an attesting witness in Ex.B-23. Also, the second defendant had executed another lease deed under Ex.B-24, dated 22.05.1963, in respect of the other portion of the property, in favour of D.W.4. The oral evidence of D.Ws.2,3 and 4 and other documents, produced by the second defendant, would all go to show that the evidence of D.W.1, regarding family arrangement and entrustment of the property exclusively to her for enjoyment towards maintenance, is credible, as correctly held by both the Courts of fact.

44. The next question that arises for consideration is, whether a right of maintenance, which a Hindu female has acquired under the customary law, could fructify into full ownership under Section 14 of the Hindu Succession Act ?

45. We see Section 14 of the Hindu Succession Act, which reads as under :

'14.Property of a female Hindu to be her absolute property :- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation :- In this sub-section, 'property' includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property.'

46. In this context, it would be relevant to refer to the decision rendered by the Supreme Court in RAGHUBAR SINGH AND OTHERS VS. GULAB SINGH AND OTHERS, reported in . In that decision, the question was, whether a Will, under which certain properties are vested in a Hindu female, fell under the provision of Section 14(1) or 14(2) of the Hindu Succession Act. Whether a widow has any pre-existing right in the property and whether after coming into force of the Hindu Succession Act she becomes a full or absolute owner of that property was the question considered in that case. After discussing the law on the subject, the Supreme Court held that a right of maintenance of a Hindu female flowed from the social and temporal relationship between the husband and the wife and that the right was a pre-existing right. It was further held that where a Hindu widow was in possession of property of her husband, she had a right over it and was entitled to retain possession of that property in lieu of her right of maintenance. It was also held that the word 'possessed' used by the legislature in Section 14(1) was of the widest possible amplitude and included the state of owning property even though the owner is not actually or physically in possession. It was an equally well-settled law that the possession of the widow must, however, be under some vestige of a claim, right or title, because the section does not contemplate possession of any wrong trespassers without any right or title. A pre-existing right is a sine qua non for conferment of a full ownership under Section 14 of the Hindu Succession Act. The Hindu female must not only be possessed of the property, but she must have acquired the property. Such acquisition must be either by way of inheritance or devise, or at a partition or 'in lieu of maintenance or arrears of maintenance' or by gift or by her own skill or exertion, or by purchase or by prescription.

47. The above interpretation of the Supreme Court would be of very much help to decide the issue in question. In the present case, it is the plea of the second defendant that she got possession from her husband Kuppanna Gounder and, from 1942, she has been enjoying the property in lieu of maintenance. Therefore, the second defendant had a pre-existing right in the property and, as such, after coming into force of the Hindu Succession Act, she became the full or absolute owner of that property and, hence, she is well within her right to execute the Will in favour of her daughter and, consequently, it is to be held that the plaintiff has no right in the suit properties.

48. In this context, yet another feature has to be noticed. During the pendency of the appeal, second defendant died and the only daughter of second defendant Rukmani filed a petition as the legal representative, to prosecute the matter. Accordingly, she was permitted to plead in place of second defendant. According to her, the properties have been bequeathed in her favour through the Will executed by the second defendant. As mentioned above, the second defendant was in possession of the suit properties as exclusive owner, on the date when the Hindu Succession Act, 1956, came into force.

49. The discussion made by this Court in the earlier paragraphs would indicate that this Court is unable to find any material to show that the plaintiff has proved that she is entitled to any share through partition in the suit properties. On the other hand, the materials placed before the Courts below by the second defendant through oral and documentary would clearly establish that the title of the suit properties has been established; the same has been enjoyed by the second defendant and that she became the absolute owner of the suit properties, subsequent to the introduction of Section 14 of Hindu Succession Act.

50. As regards the question of title, both the Courts below, in my view, have given correct factual findings, which cannot be considered to be the factual findings, given on the basis of the materials, which can be termed to be perverse or wrong.

51. This Court, sitting in Second Appeal, invoking Section 100 C.P.C., cannot interfere with the findings, recorded by the two Courts below, which are based on proper appreciation of the evidence and the materials on record, and when there is no perversity or irregularity in those findings. As laid down by the Supreme Court in (ISHWAR DASS JAIN (DEAD) THROUGH LRS. vs. SOHAN LAL (DEAD) BY LRS.); (DEENA NATH vs. POORAN LAL); (HAFAZAT HUSSAIN vs. ABDUL MAJEED AND OTHERS) and (KRISHNA MOHAN KUL, ALIAS NANI CHARAN KUL, AND ANOTHER vs. PRATIMA MAITY AND OTHERS), the scope of Section 100 C.P.C. is so limited.

52. When there is no substantial question of law and when there is no reason to hold that the factual findings given by the Courts below are perverse or wrong, this Court feels that the Second Appeal, filed by the appellant/plaintiff, has to be dismissed, as devoid of merit, both on law and facts. Accordingly, it is dismissed. No costs. To repeat, C.M.P.No.13405 of 1997 is also dismissed.


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