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W. Subbalakshmi Ammal Vs. Narasiah - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in102Ind.Cas.360
AppellantW. Subbalakshmi Ammal;A. Lakshminarasimha Aiyah
RespondentNarasiah;w. Subbalakshmi Ammal and anr.
Cases ReferredPaladugu Parasuramayya v. Valli Ramachandradu
Excerpt:
registration act (xvi of 1908), sections 21 and 51 - sale-deed--description of properties--sufficiency for identification--entry in book iv instead of book i, effect of--limitation act (ix of 1908), schedule i, article 1,7--order of magistrate under section 145--article whether applicable to suit by person not entitled to possession on date, of order--hindu law--joint family--purchase, by one member--beneficial ownership of other members. - .....came to venusamiah who enjoyed them till his death. it is alleged in the plaint that the suit properties consisting of those which belonged to venusamiah and kanniammal were in the enjoyment of venusamiah, that the plaintiffs are entitled to succeed to these properties under the hindu law and the 1st defendant who had no right whatever to the properties took unlawful possession of them along with others after venusamiah's death. consequent on disputes between the parties as regards possession of these properties, magisterial proceedings commenced which ended by the passing of an order by the deputy magistrate, saidapet, under section 145, criminal procedure code in favour of the 1st defendant and against the 1st plaintiff on the 21st of february, 1019. the 2nd plaintiff was not.....
Judgment:

1. These two appeals arise out of O.S. No. 14 of 1922 in the Court of the District Judge of Chingleput which was instituted under the following circumstances: The plaintiffs in the suit two undivided brothers, are the sons of one of the sisters of one Venusamiah who died on the 4th of June, 1917. The 1st defendant is the widow of Samaiyah, a divided brother of the said Venusamiah, who had also a younger brother Seetharamiah. The latter died leaving a widow Kanniammal, who died on the 4th of April, 1917. The properties in her possession came to Venusamiah who enjoyed them till his death. It is alleged in the plaint that the suit properties consisting of those which belonged to Venusamiah and Kanniammal were in the enjoyment of Venusamiah, that the plaintiffs are entitled to succeed to these properties under the Hindu Law and the 1st defendant who had no right whatever to the properties took unlawful possession of them along with others after Venusamiah's death. Consequent on disputes between the parties as regards possession of these properties, magisterial proceedings commenced which ended by the passing of an order by the Deputy Magistrate, Saidapet, under Section 145, Criminal Procedure Code in favour of the 1st defendant and against the 1st plaintiff on the 21st of February, 1019. The 2nd plaintiff was not a party to this order. Subsequently the 1st plaintiff obtained the rights of the sons of the other sisters of the deceased Venusamiah by deeds dated the 25th June, 1919, 21st November, 1919, and 30th November, 1919. The two plaintiffs thus becoming entitled to all rights in the estate of the deceased Venusamiah filed a suit on 20th February, 1920, in the District Munsif's Court to set aside the order of the Deputy Magistrate and for declaration of their title and for possession of the suit properties. The 1st defendant in that suit contended that the true value of the property put the case beyond the jurisdiction of the District Munsif and also stated amongst other things that the plaintiffs were not the next of kin to the deceased Venusamiah as there were agnates and one Kothandaramasamiah was the nearest reversioner and she filed a genealogical tree. Accepting the contention that the suit was beyond his jurisdiction, the District Munsif returned the plaint for presentation to the proper Court on the 28th of February, 1921. On the 7th of July, 1921, the 1st plaintiff by Ex. C got a conveyance from Kothardanamasamiah of all his rights to the suit properties. Afterwards on the 21st of March, 1922, he along with the 2nd plaintiff filed the present suit to establish their claims to the suit properties. In her written statement the 1st defendant who is the contesting defendant denied that the plaintiffs are the heirs of Venusamiah and stated that the real heirs were living in Parandarami village, Wallajah Taluk. It was also stated by her that the present suit filed beyond three years from the date of the Deputy Magistrate's order under Section 145, Criminal Procedure Code (21st February, 1919) is barred by limitation under Article 47, Schedule I of the Limitation Act. On these main contentions the learned District Judge held that Kothandaramasamiah was the nearest reversioner of the deceased Venusamiah, that the suit so far as the 1st plaintiff who alone was a party to the magisterial proceedings is concerned was barred under Article 47 of the Limitation Act, that the sale-deed Ex. C though taken in the name of the 1st plaintiff operated in favour of both the plaintiffs and that the 2nd plaintiff is, therefore, entitled to succeed to recover all the properties that Venusamiah died possessed of and which were in the possession of the defendants. A decree was accordingly given in favour of the 2nd plaintiff. Against this decree the 1st defendant has filed A.S. No. 219 of 1923 and the 1st plaintiff has filed A.S. No. 154 of 1924.

2. Accepting the finding that the suit is barred by limitation against the 1st plaintiff Mr. Ganapathi Ayyar for the appellant in A. 8. No. 219 of 1923 has argued before us (1) that on the evidence the lower Court ought to have held that the plaintiffs failed to prove that they were the nearest reversioners or that Kothandaramasamiah from whom the plaintiffs claim was the next heir to Venusamiah's estate, (2) that even if Kothandaramasamiah has been proved to be the nearest reversioner he did not intend to convey any rights under Ex. C, (3) that no title could be conveyed under that document on account of defects in registration under the Registration Act, (4) that, if any rights were conveyed at all, these, on a construction of the document, would only be in favour of the 1st plaintiff and (5) that, in any event, on the findings of the District Judge the 2nd plaintiff would be entitled to only half the properties and not to the whole. Contesting the various main points above mentioned, Mr. Somayya, in his A.S. No. 154 of 1924 has gone further and argued that the learned District Judge's conclusion that the 1st plaintiff's suit is barred under Article 47 of the Limitation Act is wrong in law and that the 1st plaintiff should be given a decree for the entire properties.

3. On these respective contentions the main questions of law and fact that arise before us for consideration in the two appeals are these (1): Is Kothindaramasamiah the nearest reversioner to the estate of the late Venusamiah? (2) Did Kothandaramasamiah intend to convey any rights under Ex. C, and if so, in whose favour were the rights conveyed? (3) Is the document invalid under the registration law? (4) Is the suit barred by limitation so far as the 1st plaintiff is concerned under Article 47 of the Limitation Act? and (5) What is the appropriate decree to be passed in pursuance of our conclusions on the above points?

4. It may be said at the very outset that there is no conflict of interest between the 1st plaintiff and the 2nd plaintiff in the suit. It is stated in para. 8 of the plaint that the plaintiffs inter se have no dispute either as to title or interest, the two being members of a joint Hindu family. They do not seek for any division or specification of their interest in the suit properties. The appeals have also been argued by Mr. Somayya on the same basis.

5. We will now proceed to consider the various points in order.

6. Point No. 1.--The question is whether Kothandaramasamiah is the nearest reversioner to the estate of the late Venusamiah. The onus of showing the relationship is certainly on the plaintiffs. Though the 1st defendant now denies in her written statement that he is the nearest reversioner, she admitted in her prior written statement that Kothandaramasamiah is the nearest reversioner of Venusamiah and it was on that ground that the 1st plaintiff was persuaded to purchase under Ex. C, Kothandaramasamiah's rights. The present statement of the 1st defendant that there are nearer gnatis living in Parandarani village is in contradiction of her prior assertion. It is pointed out by the learned District Judge that when she was served with interrogatories as to who the nearest anatis were, she did not give a proper reply and merely said that the genealogical tree showed sufficient information. She has not herself gone into the witness-box, nor has any evidence been given in support of her assertion. Kothandaramasamiah, the alleged nearest reversioner, has given evidence in favour of the plaintiffs' case. He does not say that there are nearer agnates than himself to the deceased Venusamiah and no such question was ever put to him by the 1st defendant. If we accept his evidence it will show that he is the nearest reversioner. In these circumstances, we think on the evidence before us the learned District Judge has come to a correct conclusion that Kothandaramasamiah is the nearest reversioner of the deceased Venusamiah.

7. Point No. 2.--Exhibit C is described as a deed of sale of reversionary right executed on the 7th of July, 1921, in favour of Avadanam Lakshimanarasimha Iyer (1st plaintiff).... Kothandaramasamiah.... It runs as follows: 'Though I am a' near heir and dayadhi having reversionary right to get and enjoy after the lifetime of Venugopalaswami Iyer...all the immoveable and moveable properties which were in his possession and enjoyment as belonging to him at the time of his death in Zamin Palanjoor village Sriperumbadur Taluk, Chingleput District, yet his elder brother's wife Subbalakshmi Animal (1st defendant has taken the said properties wrongfully and is in enjoyment of the same. Now, as I have no leisure to file a suit in respect of it and as you have already filed a suit in this connection and as it has appeared to you that there might be some doubt regarding your right and thereupon you have made a request to me I have consented thereto and have sold to you absolutely for Rs. 200 the right that I possess. As I have received the said money upon payment by you, you and your heirs are to take all the reversionary right that I possess and obtain the properties both by relinquishment and (from her) and by suit and enjoy the same, and I have no objection, with regard to it. Deed of sale of reversionary right executed by me to this effect with consent.' On the language of the document we have no doubt that Kothandaramasamiah intended by it to convey all his rights as to the nearest reversioner of Venusamiah and did convey such rights. It is described as a deed of sale of reversionary right. It states further: 'I have sold to you absolutely for Rs. 200 the right that I possess. As I have received the said money on payment by you, you and your heirs are to take all the reversionary right that I possess.' This language is very explicit. The executant of the document conveys absolutely to the 1st plaintiff all the rights which he as reversioner has in the properties in question. We must hold that under Ex. C Kothandaramasamiah sold all his reversionary rights in the suit properties. In support of this construction Mr. Somayya has referred us to the language of the assignment deed in Rajarajeswara Dorai v. Sundarapandiyaswami Thevar 27 Ind. Cas. 283 : 27 M.L.J. 694. No detailed reference to this document is called for, as the conclusion to be arrived at in each case would depend upon the construction of the language used in the document in that case.

8. The next question is whether the conveyance by Kothandaramasamiah was only to the 1st plaintiff or whether it was jointly in favour of both the plaintiffs. As the 1st and 2nd plaintiffs are undivided brothers-the learned District Judge presumes that, when the 1st plaintiff purchased the rights, he spent family funds that what he purchased accrued to the family and that, therefore, the 2nd plaintiff has also acquired rights under Ex. Order We cannot agree with this view. There is no evidence in support of it. The language of the document clearly leads to a contrary conclusion. No reference is made in it to the 2nd plaintiff and it is stated that the conveyance is to the 1st plaintiff absolutely. There is no evidence that the purchase money was taken from the family funds. In these circumstances, we do not think that the learned District Judge was right in inferring, from the bare fact that the 1st and the 2nd plaintiffs are undivided brothers that the purchase under Ex. C was a joint purchase and enured to the advantage of the 2nd plaintiff also.

9. Point No. 3. This point raises the question whether the document Ex. C conveys a valid title to the 1st plaintiff as it was accepted for registration and registered without sufficiently complying with two important provisions of the Registration Act, namely, Section 21, Clause (1) and Section 51, Clause (2). It is contended (1) that Ex, C is inoperative as it contains no description of property sufficient to identify the same as required by Section 21, Clause (1) of the Registration Act and (2) that, as it was entered only in Book No, IV and not in Book No. 1 as prescribed by Section 51, Clause (2), it cannot affect any immoveable property, In support of these contentions reliance is placed on Narasamma v. Subbarayudu 18 M. 364 : 6 Ind. Dec. 603.

10. We may point out that this question has been raised for the first time in this Court, but as it is one of law and nothing which does not appear from the document has been referred to in support of the contention, we allowed Mr. Ganapathi Iyer to argue it. Exhibit C describes the properties as 'all the immoveable and moveable properties which were in his possession and enjoyment as belonging to him at the time of his (Venusamiah's) death in Zemin Palanjoor village, Sriperumbadur Taluk, Chingleput District. It also states that 'the executant is a near heir and dayadhi having reversionary right to get and enjoy after the lifetime of Venugopalaswami Iyer.' Any one reading the document would know where the immoveable properties referred to in it are situated, to whom they belong and what title the executant has to those properties. This information should ordinarily enable a person to identify in original the property referred to in the document without any difficulty. In our opinion, the description of the property given in the document is sufficient to identify the same. The decision in Narasamma v. Subbarayudu 18 M. 364 : 6 Ind. Dec. (603 held that a description of property in a release deed and executed to a Hindu widow by her husband's relative as 'the property of the deceased' mentioned in the document was not a sufficient description. It is not clear from the document what exactly was the description of the property in the release deed. In a later case our Court held that a description of property as 'my family property' in a deed of partition is sufficient for the purposes of Section 21 Clause (1) of the Registration Act [See Narasimha Nayanevaru v. Ramalingamma Rao 10 M.L.J. 104]. In that case the Court expressed the opinion that it was enough that the property was described as the property bought or inherited from A.B. The learned Judges said. 'The description is to be sufficient to identify the property, but as Section 22 of the Registration Act shows, it need not be a description of local character. It need not mention the street in which the house is or give the name or the superficial area. It follows that the description is not required to be such as to indicate to one searching the register without further enquiry or information the precise property to which the entry relates.' We think the case before us falls within the scope of this decision. Exhibit C cannot, therefore, be held to be invalid on the ground that it does not contain a sufficient description of the property within the meaning of Section 21, Clause (1) of the Registration Act.

11. The next contention is that Ex. C does not affect immoveable property as it was entered in Book No. IV and not in Book No I as prescribed by Section 51 of the Registration Act. It might at first sight appear that this contention is supported by the decision in Narasamma v. Subbarayudu 18 M. 364 : 6 Ind. Dec. 603 but a careful perusal of the judgment will show that the decision should not be given a wide application but should be understood strictly with reference to its particular facts In that case a deed was executed in favour of a Hindu widow by her husband's relative releasing all the rights he had in the properties of her deceased husband. She (4th defendant) sold the properties to defendants Nos. 1 and 2, while her husband's relative (3rd defendant), after executing the release deed, sold them to the plaintiff. The release deed Ex. I was entered in Book No IV and not in Book No. I as prescribed by Section 51 of the Registration Act. The question for decision was whether the plaintiff was entitled to recover the properties from defendants Nos. 1 and 2. In holding that he was entitled to recover them, the learned Judges make the following observations with reference to the point now under consideration' '1st and 2nd defendants on seeing their vendor's title deed, if they had exercised ordinary care and caution, must have seen the flaw-in her title whereas no amount of search in the Book No. I in the Registration Office would enable the plaintiff to discover that the property sold to him by 3rd defendant did not in fact belong to 3rd defendant as gnati of the last owner Gopal Rao, but to 4th defendant who is the step-mother of the last owner.' The learned Judges thought that a stranger like the plaintiff in that case should not be made to suffer for a mistake which the 4th defendant could have easily rectified and that she had herself to blame if she became a loser thereby and her transferees of course stood in her shoes. The subsequent observations in the judgment also show that one of the main considerations which influenced them in arriving at their conclusion was the fact that in that case the property had passed to a third party for consideration and that he should not be made to suffer because the parties to the document did not take sufficient care to get the document entered in the proper book in the Registration Office. Such considerations do not arise in this case at all. The 1st defendant the widow has got no conveyance in her favour and cannot in any way be said to be prejudiced by the wrong entry of Ex. C in Book No. IV. In this connection the following remarks of their Lordships of the Privy Council in Sah Mukhun Lall Panday v. Sah Koondun Lall 2 I.A. 210 ; 15 B.L.R. 228 : 24 W R 75 : 3 Sar. P.C.J. 509 : 3 Suth. P.C.J. 170 may be referred to with advantage:

12. 'If the Registering Officer refuses to register, the mistake may be rectified upon appeal under Section 83, or upon petition under Section 84, as the case may be; but, if he registers where he ought not to register, innocent persons may be misled, and may not discover, until it is too late to rectify it, the error by which, if the registration is in consequence of it to be treated as a nullity, they may be deprived of their just rights.' This case is not referred to in Narasamma v. Suhbarayudu 18 M. 364 : 6 Ind. Dec.603 and it does not contain a discussion of the general question whether an error in mere procedure committed by the Registrar will render invalid the document which he has registered.

13. For these reasons, we hold that Ex. C is not invalid on either of the grounds urged by the learned Vakil for the appellant.

14. Point No. 4.--This point relates to the question whether the 1st plaintiff's suit is barred by limitation under Article 47 of the Limitation Act. Article 47 prescribes 'three years from the date of the final order in the case' as the period of limitation for a suit brought 'by any person bound by an order respecting the possession of immoveable property made under the Code of Criminal Procedure, 1898...or by anyone claiming under such person, to recover the property comprised in such order.' In this case the order against the 1st plaintiff in the miscellaneous proceedings under Section 145, Criminal Procedure Code was passed by the Deputy Magistrate, Saidapet on 21st February, 1919. The present suit was instituted on 21st March, 1922. At first sight it would appear that the suit is barred because when it was instituted three years had elapsed from the date of the Magistrate's order. But it is argued by Mr. B. Somayya that Article 47 has no application to a case like the present where the facts show that at the time when the Magistrate's order was passed there was no existing right in the 1st plaintiff to sue for possession of the suit properties. It will be remembered that at the time of the magisterial proceedings, the 1st plaintiff's only claim to the properties was based on his relationship to the deceased as his sister's son. This in law would give him no right to the properties unless he became entitled to them as the nearest reversioner and the rights, as such, he acquired only after he obtained a conveyance under Ex. C, dated 7th July, 1921 of Kothandaramasamiah's rights. It is obvious, therefore, that, at the time when the Magistrate passed his order, the 1st plaintiff had no existing right to sue for possession. This argument is supported by the decision in Bolai Chand Ghosal v. Samiruddin Mandal 19 C. 646 : 9 Ind. Dec. 873. In that case a suit was instituted by four co-sharers against a zemindar for specific performance of an agreement to lease lands and a decree was obtained directing the zemindar to execute a patta. Before the patta was actually executed, in a proceeding by one of the co-sharers an order was passed by the Magistrate under Section 530 corresponding to Section 145 of the present Criminal Procedure Code on the ground that the petitioner had failed to establish possession. Afterwards a patta was obtained by the co-sharers by an order of the Court in execution of the decree for specific performance and a suit was instituted by the co sharers more than three years after the order of the Magistrate under Section 530 (145). It was held by the learned Judges that Article 47 did not apply to the facts of the case as no right to sue in ejectment existed in favour of the co-sharers at the time when the magisterial order was passed. As such rights came into existence only when the patta was executed by the direction of the Court which was subsequent to the passing of the order under Section 530(145), Criminal Procedure Code, the learned Judges held that the suit to recover possession would not be barred. The following extracts from the judgment deal with the point under consideration: 'We think that the provision (Art. 47) cannot apply particularly having regard to the terms of Section 145, as it now stands which contemplates an action in ejectment.... Art. 47 must refer to such a right of suit, and a judgment under Section 510 of the Criminal Procedure Code, existing at the time of the passing of the order. We do not think a right to sue in ejectment existed at the time. No such suit could be brought until the lease was granted.... ' In the case before us at the time when the order by the Magistrate was passed the 1st plaintiff had no legal right to institute a suit in ejectment against the defendants. As he obtained such a right only after the passing of the Magistrate's order, Article 47 is not a bar to his present suit. We do not think that the decision in Paladugu Parasuramayya v. Valli Ramachandradu 21 Ind. Cas. 564 : 38 M. 432 : 14 M.L.T.392; (1913) M.W.N. 871 is contrary to this view; on the other hand, it seems to support it. In this view, the 1st plaintiff's suit is not barred by Article 47 of the Limitation Act.

15. Taking the two appeals together we, therefore, hold that Kothandaramasamiah was the nearest reversioner to the deceased Venusamiah, that his reversionary rights were validly conveyed to the 1st plaintiff and that the present suit instituted by him is not barred by Article 47 of the Limitation Act. In this view the question argued by Mr. Ganapathi Iyer as regards whether the 2nd plaintiff is entitled to the whole or half of the property does not arise for determination.

16. In the result, we dismiss A.S. No. 219 of 1923 with costs, allow A.S. No. 154 of 1924 with no costs. The 1st plaintiff will, therefore, get a decree as prayed for but as he agrees that the decree may be passed in favour of himself and the 2nd plaintiff jointly we order that such a joint decree should be passed.


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