Madras High Court
Venkatachalam (Died) vs Rajammal on 28 August, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 28..08..2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.747 of 1990 and C.M.P.No.12999 of 2001 1. Venkatachalam (died) 2. V.Sampathkumar 3. V.Sukumar 4. V.Sekar 5. V.Ravikumar ... Appellants Appellants 2 to 5 brought on record as L.Rs of the deceased sole appellant vide order of Court dated 10.07.2008 made in C.M.P.No. 1127 of 2008. Vs. 1. Rajammal 2. Kankammal 3. Manickam 4. Kathayee alias Ponnu Ammal (died) 5. Kanthamani ... Respondents 5th respondent name have been impleaded as proposed respondent in the place of deceased fourth respondent vide as per order of Court dated 31.01.2002 made in C.M.P.No.13000/2001 by VKJ Appeal against the judgment and decree of the learned Subordinate Judge, Dharmapuri and passed in O.S.No.27 of 1989 dated 19.07.1989. For appellants :: Mr.T.R.Rajagopalan, Senior Counsel for Mrs.Chitra Sampath For respondents :: Mr.S.V.Jayaraman,Senior Counsel for Mr.P.Thirunavukkarasu JUDGMENT
This appeal is focussed as against the judgment and decree dated 19.07.1989 passed in O.S.No.27 of 1989 on the file of the learned Subordinate Judge, Dharmapuri in decreeing the suit for partition and separate possession of 1/5 th share each, in favour of the plaintiffs. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Niggard and bereft of details, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
The properties described in the schedule of the plaint belonged to one Thandaiammal as her exclusive properties. The first and second plaintiffs and the third defendant are the daughters and the defendants 1 and 2 are the sons of Thandaiammal. Consequent upon her death, her aforesaid children became entitled to equal shares in the suit properties. However, defendants 1 and 2 by way of defeating the interest of the daughters of Thandaiammal clandestinely and surreptitiously effected a partition between D1 and D2 themselves on 05.06.1965. The plaintiffs were not aware of such partition immediately. However, three years later, they demanded partition for dividing the property into five shares and for allotment of one share to each of the legal heirs of the deceased Thandaiammal; whereupon, by the intervention of the relatives, there emerged a consensus among the sharers that all the legal heirs should continue to enjoy the suit property as before and share the income arising there from. Subsequently, the plaintiffs felt that it was no more feasible to continue the joint status of sharing of the income and hence, after exchange of pre suit notices, the suit came to be filed for partition.
3. Remonstrating and impugning, the allegations/averments in the plaint, the first defendant filed the written statement, which was adopted by D3, the pith and marrow of it would run thus:
The daughters of Thandaiammal,viz., the plaintiffs 1, 2 and D3 got utmost benefit by way of Seervarisai from Thandaiammal. Consequently, understanding that the sons of Thandaiammal are not financially sound, the daughters of Thandaiammal have relinquished orally their right over the suit property, which belonged to Thandaiammal. Thereafter, in the presence of relatives and elders, D1 and D2 got partitioned the suit properties. D3's husband and P1's husband were also present at the time of effecting such partition between D1 and D2 and they also attested the partition deed dated 05.06.1965. The plaintiffs were aware of all these details. Following the said partition, for about 19 years, the respective sharers have been enjoying the suit property and also effected amelioration. While so, D2 developed hostility as against D1 in view of the latter having not granted permission for burying the dead body of his son Panneerselvam in the property of D1; whereupon only D1 engineered this vexatious suit by instigating the plaintiffs to file the suit and the suit is barred by limitation.
Accordingly, he prayed for the dismissal of the suit.
4. D2 was set ex parte before the trial Court and he had also not filed any written statement.
5. The trial court framed the relevant issues. During trial, the plaintiffs examined themselves as PW1 and PW2 and Exs.A1 to A5 were marked. The first defendant examined himself as DW1 along with D.Ws.2 to 4 and Exs.B1 to B89 were marked. The trial Court ultimately decreed the suit for partition and separate possession, allotting 1/5 th share each in favour of the two plaintiffs and 1/5 th share each in favour of the defendants 1 to 3. Accordingly, the preliminary decree was passed.
6. Animadverting upon the judgment and decree of the trial Court in ordering partition and in awarding the incidental reliefs, the appellant/first defendant has filed this appeal on various grounds, the warp and woof of them could be portrayed thus:
(1) The judgment and decree of the trial Court are against law, weight of evidence and all probabilities of the case.
(2) The trial Court ignoring the fact that the suit itself was instituted belatedly and consequently barred by limitation simply decreed the suit.
(3) The trial Court ignored the fact of the partition deed dated 05.06.1965 having been attested by the respective husbands of the first plaintiff and the third defendant and also the factum of P1, P2 and D3 having had knowledge of the said partition effected under Ex.B1 and the subsequent conduct of D1 and D2 in enjoying the partitioned properties as their own and exclusive properties.
(4) In view of D1 having not permitted D2 to bury the latter's son's body in the former's land, instigated the plaintiffs to file the suit and this aspect was not considered by the lower court.
(5) The trial Court failed to take note of the fact that the suit was deliberately under valued.
(6) The trial court ignored the factum of the plaintiffs having filed the earlier suit in O.S.No.171 of 78 undervaluing the suit and as a sequela hence Section 14 of the Limitation Act having been not available for their rescue.
(7) The defendant No.1 acquired title by adverse possession relating to the area allotted to him under the partition deed, but that fact was ignored by the trial Court without any valid reason.
Accordingly, he prayed for setting aside the judgement and decree of the trial Court and for the dismissal of the original suit.
7. Heard the learned senior counsel appearing on either side.
8. The points for consideration are as to :-
(i) Whether D1 and D3 proved that the plaintiffs 1 and 2 relinquished orally their right over the suit properties and also the alleged fact that Ex.B1 the partition deed emerged between D1 and D2 with the consent of the plaintiffs?
(ii) Whether D1 acquired prescriptive title over the property alleged to have been allotted to the share of D1?
(iii) Whether there is any infirmity in the judgment and decree of the trial Court?
C.M.P.No.12999 of 2001:
9. The deceased appellant during his life time, filed the petition under Order 41 Rule 27 of Code of Civil Procedure for reception of the following documents.
(i) Proceedings of Tahsildar, Pappireddipatti dated 14.12.2000
(ii) Chitta extract for pattas 917, 386, 366, 162, 759 and 645 (6 documents)
(iii) Adangal extracts for fasli 1382 to 1384, 1386 to 1389, 1391 to 1402, 1405 to 1410.
The reasons found set out in the affidavit of the deceased petitioner/appellant are to the effect that the documents referred to supra are absolutely necessary to canvass his case, of he being in possession and enjoyment of his share of the suit properties, under Ex.B1. However, the said petition was resisted by the respondents/plaintiffs on the main ground that such sort of revenue records cannot be put in evidence during the appellate stage, even though the first defendant had due opportunity of filing those dossiers at the earliest point of time before the trial Court itself. However, no counter has been filed by the plaintiffs.
10. The perusal of the additional documents would demonstrate that they are the proceeding of the Tahsildar ordering issuance of adangal extracts, chitta extracts for the fasli years viz.1382 to 1384, 1386 to 1389, 1391 to 1402, 1405 to 1410 and the Chittas and Adangals themselves also. The Tahsildar also set out in his order that other Adangals and Chitta Extracts relating to earlier periods were not available. Be that as it may, now the Adangal extracts and the chitta extracts for the various years have been filed purely for the purpose of buttressing the plea of the appellant that in pursuance of Ex.B1, the Partition Deed, the defendants 1 and 2 took possession of their respective shares and started enjoying them exclusively. The additional documents sought to be filed bear the signature and seal of the public official. In such a case, I am of the opinion that the same could be permitted to be filed as additional documents and that would not cause any prejudice to the respondents/plaintiffs.
11. It is the contention of the plaintiffs that it is not as though the defendants came into possession of the suit properties only after effecting such partition, but they had been in possession and enjoyment of the suit properties ever since the period of Thandaiammal, as Thandaiammal happened to be a lady, the defendants 1 and 2 being her sons, cultivating the land. In view of such plea taken by the plaintiffs, I am of the considered opinion that these revenue records, which the appellant relied on to prove his possession would in no way prejudice the rights of the respondents/plaintiffs in resisting the appeal canvassing their own grounds.
12. Accordingly, those documents are allowed to be filed and exhibited as Exs.Nos.B-90, B-91 and B-92 respectively in continuation of the exhibits already marked on the defendants' side.
Point Nos.1 and 2:
13. These two points are taken together for discussion as they are inter-linked and inter-woven with each other.
14. Indubitably and incontrovertibly, in Ex.B1, the partition deed dated 05.06.1965, which emerged between D1 and D2, the daughters of Thandaiammal, viz., plaintiffs 1, 2 and D3 did not sign whereas the husband of the first plaintiff and the husband of the third defendant signed it as attestors. The edifice of the first defendant's case is that the daughters of Thandaiammal orally relinquished their right over the suit properties, in view of the fact that the sons of Thandaiammal, viz., D1 and D2 were not financially sound; but, on the other hand, the daughters of Thandaiammal were given in marriage happily with adequate Seervarisai and they were well placed and they got settled in their respective matrimonial homes; the plaintiffs 1, 2 and D3 being female members had not chosen to figure as parties in the partition deed or as attestors and virtually on their behalf only the first plaintiff's husband and the third defendant's husband signed as attestors and that too after the matter having been well discussed and agreed upon among them.
15. On the contrary, the learned Senior counsel for the appellant/D1, by drawing the attention of this Court to the various portions of the evidence would develop his argument that the theory of oral relinquishment in the presence of panchayatars, is nothing but an after thought dished out by the first defendant purely for the purpose of depriving the plaintiffs of their respective shares as the class-I heirs of their mother Thandaiammal; the written statement is as silent as silence could be relating to the date or dates on which the alleged discussions were held relating to release and partition and the name of the well wishers or relatives, who were allegedly present at the time of relinquishment by P1 and P2 in favour of D1 and D2, their rights in the suit property; for the first time, the names of the Panchayatars were sought to be specified during the trial and that too, none of them were examined before the trial Court; the theory of family arrangement has not even been found set out in the pleadings; the mere depositions of D1 and D2, which are their ipse dixit would not enure to the benefit of D1 to attract the concept of prescriptive title in view of the fact that even during the life time of Thandaiammal D1 and D2, being her sons were cultivating the land and quite similarly even after the death of Thandaiammal they continued to cultivate the land and share the income with defendants 1 and 2.
16. At this juncture, it is worthwhile to extract an excerpt from the deposition of DW1.
@ehDk;. 2K; vjph;thjpa[k; vd; jhahUf;F cjtpahf ,Ue;J mDgtpj;J te;njhk;/ vd; jhahh; ,we;j gpwF 1965y; tUlk; vdf;Fk; 2k; vjph;thjpf;Fk; jhth brhj;Jf;fis bghWj;J ghfk; Vw;gl;lJ/@
17. The learned Senior counsel for the appellant would cite various decisions to canvass the point that relinquishment of one's right in the joint family property could be oral. Hence, it is therefore, just and necessary to consider those decisions in seriatim.
(i) AIR 1966 SC 292 (Tek Bahadur Bhujil vs. Debi Singh Bhujil). An excerpt from it would run thus:
"10. There is nothing in the agreement, Exhibit 3, with respect to the property the mother was to keep with herself. It is however alleged in the plaint and deposed to by respondent No.1 that the agreement was arrived at with the consent of the mother and that she alone was to own and enjoy the house property in Shillong Cantonment bearing No.5 Jalupara Bazaar. The mother was therefore a party to the family arrangement. The fact that her statement was not invalidate the family arrangement which can be arrived at orally. We are therefore of opinion that the Courts below rightly held that there had been a family arrangement between the appellant and respondents Nos.1 and 2 on December 31,1942 and that the agreement Exhibit 3 is a record of that family arrangement."
(ii) AIR 1965 Bombay 74 (Ramdas Chimna vs. Pralhad Deorao and others ). An excerpt from it would run thus:
"6. the question then arises whether it is open to the mother to relinquish her interest in the joint family properties orally when the joint family properties consist of immoveable properties like the suit fields and the value of her share therein is more than Rs.100/-. Mr.Deshpande drew my attention to the case reported in Dattatraya govind v. Narayan Gangaram, AIR 1936 Nagpur 186. It was held by Vivian Bose J., in that case that "except in the case of partition among the members of a joint Hindu family, where the unities of possession, interest, title and time are complete and except in the case of entrance to a religious order involving complete renunciation of the world, no person can divest himself of interests which have once vested in him by a mere disclaimer. A title once vested can be divested only by a recognized conveyance or one of the other means allowed by law. It cannot pass by admission, relinquishment, or disclaimer when the law requires a deed". This case does not lay down that relinquishment cannot be made orally. All that it says is that the title once vested can be divested only by a recongized conveyance or by one of the other means allowed by law. It further says that the title once vested cannot pass by relinquishment when the law requires a deed. What has to be seen is whether the law requires that relinquishment can only be made by a deed or by an instrument. Transfer of Property Act clearly recognizes oral transfers. Section 9 of the Act provides that "a transfer of property may be made without writing in every case in which a writing is not expressly required by law". It follows, therefore, that an oral transfer of property is rule unless there is law which expressly requries that it should be made in writing. Transfer of Property Act contains various transfers where writing is necessary. Under S.54, a sale of tangible immovable property of the value of Rs.100/- or upwards, or of a reversion or other intangible thing is required to be nade only by a registered instrument. Under Sec.59, a writing is necessary in the case of a simple mortgage or in the case of all other mortgages except a mortgage by deposit of title-deeds where the principal sum secured is Rs.100/- or upwards. Under Sec.107, a lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent, is required to be made in writing. Under Sec.123, a gift of immovable property can only be made by a writing. Under Sec.130, all transfers of actionable claims have to be made by writing and, under Sec.118, all exchanges are subject to the same rules as are applicable to sales. Thus, when the law requires that there should be an instrument in writing and that instrument must be registered, the transfer can only be effected in that manner. But where no writing is required by the Transfer of Property Act or any other law, the transfer may be made orally. Mr.Deshpande is unable to point out any statute which requires that the relinquishment by the mother of her interest in the joint family property, when the property consists of immoveable property and the value of the share therein exceeds Rs.100/-, can only be made in writing or by an instrument registered."
18. Learned counsel for the appellant also cited the following decisions:
(i) AIR 1967 SC 1395 (Kuppuswami Chettiar vs. A.S.P.A.Arumugam Chettiar and another)
(ii) AIR 1965 AP 177 (FB) (Kattagadda China Anjaneyulu and another vs. Kattragadda China Ramayya and others)
(iii) 1969 (II) The Madras Law Journal Reports 509 (The Weavers Mills Ltd. Rajapalayam through Managing Agents Jayam and Co.Ltd., rep.by the present Managing Director Aru Chinna Gurusami Moopanar vs. Balkis Ammal and others)
19. The learned Senior counsel for the respondents/plaintiffs would submit that absolutely there is no quarrel over the proposition as found exemplified in the cited precedents. However, he would hasten to add that in this case, there is no miniscule or exiguous of reliable evidence to countenance that such oral relinquishment took place. Mere averring in the plaint or utterances by the interested parties would constitute only their ipse dixit and it would not amount to proof.
20. It is therefore, just and necessary to analyse the evidence to find out as to whether the oral relinquishment has been proved. At this context, the learned Senior counsel for the appellant would advance his argument by attempting to drive home the point that in matters of this nature, the conduct of the parties would speak volumes and in this case, the oral release as well as subsequent partition, which emerged between D1 and D2 in the form of Ex.B1, to which the plaintiffs agreed to and allowed partition to be acted upon in letter and spirit are all found demonstrated adequately by the evidence and adduced on the defendant's side.
21. An excerpt from the precedent of the Hon'ble Apex Court reported in AIR 1955 SC 481 (Sahu Madho Das and others vs. Mukand Ram and another), is extracted thus:
"28. A family arrangement can, as a matter of law, be implied from a long course of dealings between the parties.
35. The conduct of the various members of the family is relevant to show that their actings, viewed as a whole, suggest the existence of the family arrangement. At a great distance of time gaps in evidence that would otherwise be available have to be filled in from inferences that would normally have little but corroborative value. But inferences from the conduct of the family is all that can reasonably be expected in proof of an arrangement said to have been made in 1875. The statements that the deceased members of the family made as witnesses in prior litigation are therefore as relevant as recitals made by them in deeds and statements made by them in pleadings. They do not in themselves prove the fact in issue, namely, the family arrangement, because, in the absence of Section 32(3), they are not admissible for that purpose, but as their conduct is relevant these statements are admissible as evidence of that conduct.
54. It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it, to the portions allotted to them respectively. That explains why no conveyance is required in these cases to pass the title from the one in whom it resides to the person receiving it under the family arrangement. It is assumed that the title claimed by the person receiving the property under the arrangement had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary But, the principle can be carried further and so strongly do the courts lean in favour of family arrangements that bring about harmony in a family and do justice to its various members and avoid, in anticipation, future disputes which might ruin them all, that we have no hesitation in taking the next step (fraud apart) and upholding an arrangement under which one set of members abandons all claim to all title and interest in all the properties in dispute and acknowledges that the sole and absolute title to all the properties resides in only one of their number (provided he or she had claimed the whole and made such an assertion of title) and are content to take such properties as are assigned to their shares as gifts pure and simple from him or her, or as a conveyance for consideration when consideration is present.
59. Estoppel is rule of evidence which prevents a party from alleging and proving the truth. Here the plaintiff reversioner ( the son of one of the daughters of the widow) is not shut out from asserting anything, assuming that the widow had only a life estate. When the plaintiffs asserts that he did not assent to the family arrangement, the principle applicable is therefore not estoppel. It is a rule underlying many branches of the law which precludes a person who, with full knowledge of his rights, has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, from going back on that and avoiding it at a later stage. Having made his election he is bound by it."
22. Pointedly, drawing the attention of this Court to the aforesaid excerpts in the precedent cited supra, the learned Senior counsel for the appellant would canvass his point that if at all the plaintiffs had real interest in claiming their respective shares, then they would not have allowed the defendants 1 and 2 to enjoy their respective shares as per the partition deed for such a long period till the filing of the suit and that there is nothing to indicate that the income derived from it was shared by D1 with his sisters. By way of buttressing his argument, he would refer to the revenue records, viz., Ex.B2, Chitta extract, Ex.B3, the patta pass book, Ex.B4 the patta, Ex.B5 the Adangal Extract, Ex.B90 the Proceedings of Tahsildar, Pappireddipatti dated 14.12.2000, Ex.B91 - Chitta extract for pattas 917, 386, 366, 162, 759 and 645 (6 documents) and Ex.B92 the Adangal extracts for fasli 1382 to 1384, 1386 to 1389, 1391 to 1402, 1405 to 1410, which are standing in the name of D1 and develop his argument that the partition as envisaged in Ex.B1 stood implemented in letter and spirit.
23. Per contra, the learned senior counsel for the plaintiffs would torpedo such an argument by inviting the attention of this Court to the deposition of DW1, Venkatachalam himself, which is to the effect that even during the life time of Thandaiammal, D1 and D2 had been in possession and enjoyment and after their mother's death, Ex.B1 partition deed emerged and they continued to enjoy their respective portions.
24. It is therefore, crystal clear that if there is evidence to the effect that only after Ex.B1, the parties to Ex.B1 entered into the possession of the land to the knowledge or connivance or acquiescence of the plaintiffs, as against whom the factum of D1 and D2 having entered into possession, is pitted against, then such piece of evidence would gain prominence and significance. However, in this case, it is quite obvious that was not the case and as such they are to be termed as poccucurante ones.
25. Indisputably, the plaintiffs have been living in their respective matrimonial homes ever since the life time of their mother Thandaiammal and in such a case, they cannot be imputed with knowledge about the alleged enjoyment of the suit properties by D1 and D2 as per their respective shares contemplated in Ex.B1.
26. The learned Senior counsel for the appellants also would correctly argue that in this case, the pleas of estoppel, acquiescence and family arrangement have not been specifically pleaded and in the absence of the same, the appellants cannot try to achieve success in this litigation by invoking these pleas before this Court.
27. The core question arises as to whether the attestation of Ex.B1, the partition deed by the first plaintiff's husband and D3's husband would in any way fasten the plaintiffs 1 and 2 with knowledge as well as their consent to it.
28. At this juncture, my mind is reminiscent of the famous English adage "a husband can break her leg and not her watch", which signifies the importance given in the English jurisprudence to the exclusive property rights of the wife, de hors the husband's physical control over the wife. I would like to incidentally point out that now the situation has got drastically changed that "a husband can never break her leg or her watch" and it is more so in the present day Indian setting.
29. In such a case, it is not known as to how the defendants 1 and 2, being the sons of Thandaiammal could contend that the rights of the daughters of the Thandaiammal should be deemed to have been released or relinquished because the husband of the first plaintiff and the husband of the D3 attested Ex.B1, the partition deed. I would incidentally remark that in these days of "gender and law" movement by which, the women's right are protected zealously, it is not known as to how the husband's consent relating to the wife's property for releasing her right would be binding on the wife. There is also no adequate explanation as to what prevented D1 and D2 from making the plaintiffs 1 and 2 also as parties in the said partition deed.
30. It is a common or garden principle that in drafting Partition deeds there could be clauses of relinquishment also. If really, the plaintiffs 1 and 2 had relinquished their rights orally earlier to Ex.B1 and they continued to stick to their guns then D1 and D2 could have very well cited them as parties in the said Ex.B1 and the recitals in it could have very well evinced their alleged stand of having relinquished their share in favour of D1 and D2.
31. The learned Senior counsel for the plaintiffs is right in his argument that there is not even a recital in Ex.B1 that the plaintiffs allegedly relinquished their rights, whereupon only D1 and D2 have entered into such partition deed between themselves.
32. The learned counsel for the appellant who tried to expound and explain by submitting that in most of the families the son-in-laws will be playing vital role rather than the daughters and in commensurate with that alone on behalf of the female members, their respective husbands signed as attestors. The very fact that D1 and D2 did choose to get the signatures of P1's husband and D2's husband would make the Court to look askance at the conduct of D1 and D2, as what prevented them to prevail upon daughters of Thandaiammal themselves to sign either as attesting witnesses or as parties to it, incorporating the recitals that they relinquished their right over the suit property. The onus probandi is on D1 to prove that the plaintiffs relinquished their right and they cannot try to fob off their burden of proof on the plaintiffs to prove the negative aspect as to why they have not laid claim over the suit property all along, in the wake of the plaintiffs admittedly, being the daughters of the deceased Thandaiammal, the original owner of the suit properties. They are Class-I heirs as per Hindu Succession Act, 1956 and it is for the first defendant to prove as to how they got divested themselves of their rights over the suit property.
33. The learned Senior counsel for the plaintiffs would remarking on the attitude of D1 in not setting out the names of the relatives/panchayatars who were present at the alleged discussion, which took place relating to the property rights of the parties, but in specifying, during trial, the names of those relatives and others present at the time of release as well as partition,dig at his way of projecting his use, wherefore, it is just and necessary to extract one other excerpt from the deposition of DW1 (D1) thus:
@ghfk; 4/6/65y; ehs; ngrg;gl;lJ/ 5/6/65k; ehs; ghfg;gj;jpuk; vGjpf;bfhz;nlhk;/ ehDk; 2k; vjph;thjpa[k; ghfk; gphpj;Jf; bfhs;tij gw;wp 1k; vjph;thjp tPl;oy; ngrpndhk;/ ghfk; ngRk; nghJ 1.2 thjpfSk; 3k; vjph;thjp. 3k; vjph;thjpapd; fztUk;. 1k; gpujpthjpapd; fzth; fpUc&;z ft[z;lh;. ehd; 2k; vjph;thjp eLt{h; Rftzk; uh$f;ft[z;lh;. Ia;ahrhkp cjtpj; jiyth; uhkd; nryk; fpr;rph;ghisak; itahg[hp gilahr;rp mth; kidtp rhujh/ mth; kiitp ,Ue;jhh;fs;/ nkny Twpa[s;s egh;fs; ,Ue;J ngrp ghfk; gphpj;J tpl;lhh;fs;/ ghfk; gphpj;jjpy; vdf;F g[/vz;/155-1 y; 4/80 brz;l; epyk; 155-2y; 6 1-4 brz;l; epyk;/ g[/vz; 184 y; 0/75 brz;l; epyk;/ ek; vjph;thjpf;F g[/vz;/124 y; 13/96 brz;l; fpilj;jJ/ 2k; vjph;thjpf;F 3 m';fs Tiu bfhl;lif gphpj;J bfhLf;fg;gl;lJ/ 1.2 thjpfSf;Fk; 3 k; vjph;thjpf;Fk; vd; bgw;nwhh;fs; jpUkzk; bra;J itj;jhh;fs;/ mth;fSf;F rPh;thpir epiwa bra;Js;nshk;/ 1.2 thjpfisa[k; 3k; vjph;thjpia jpUkzk; bra;J bfhLj;j ,lk; ey;y trjpahd ,lk;/ eh';fs; ghfk; gphpj;Jf; bfhz;l nghJ. 1.2 thjpfSk; 3k; vjph;thjpfSk; trjpahf ,Ug;gjhy; j';fSf;F ghfk; ntz;lhk; vd;Wk; v';fis ghfk; gphpj;Jf; bfhs;s brhd;dhh;fs;/ mjdhy; jhd; vdf;Fk; 2k; vjph;thjpf;Fk; vd; jhahh; brhj;Jf;fs; ghfk; gphpf;fg;gl;lJ/ 4/6/65k; ehs; ghfk; ngrg;gl;L 5/6/65 ehd; gj;jpuk; vGjp gjpt[ bra;Jf; bfhz;nlhk;/@
34. The excerpt cited from the deposition of DW1 (D1) would convey the idea as though the oral release and the partition took place at one and the same mediation cum Panchayat. It is deducible that it is the specific case of D1 that at the time of partition, the plaintiffs 1 and 2 and D3 were very much present and that too at the time of discussion and if that be so, it is not known as to why in the partition deed, the factum of plaintiffs 1,2 and D3 having relinquished their entire shares is not found spelt out. However, DW1 himself during cross examination would state that the discussion went on for about 10 days anterior to 4.6.1965. DW2,Kandasamy, the husband of D3 and father-in-law of D1 would depose during cross examination that the discussion went on for 4 or 5 days. There is no satisfactory explanation as to why none of those alleged disinterested panchayatars or well wishers were examined before the court in support of the alleged oral release and the partition between D1 and D2. As such, the deposition of DW1 and DW2 (D1 and D3's husband) are only self-serving depositions, which are nothing more than their ipse dixit. D3, being the sister as well as mother-in-law of D1, no wonder supported the cause of D1 and not the cause of her sisters, viz., plaintiffs 1 and 2. D3 virtually stood to benefit, as the female shares' share were obtained indirectly by D3's family only. Simply because, D3, being the daughter of Thandaiammal not claiming right in the suit properties, no adverse inference could be drawn against the plaintiffs, who are also the daughters of Thandaiammal claiming their shares in the suit property.
35. DW3, being the Village Munsif, would clearly and categorically utter out that even during the life time of Thandaiammal, D1 and D2 were in possession and enjoyment of the property. He also went on speaking about the partition, which took place under Ex.B1. However, he candidly and categorically admitted at the time of cross-examination after re-examination that he only heard about Ex.B1, the partition deed.
36. DW4, did not speak anything about the alleged fact that he participated in the panchayat and he is only a cattle broker and not a Panchayatar of that locality. However, he would speak about the apple of discord, which ensued relating to the proposal to bury D2's son in D1's land.
37. It is also to be noted that absolutely, there is nothing to indicate that before effecting change of names in the revenue records, the plaintiffs were put on notice and in such a case, even connivance or acquiescence to the factum of partition as contained in Ex.B1 cannot be inferred.
38. The learned senior counsel for D1 would contend that the conduct of the parties as per the decision cited supra by him are more relevant to hold that Ex.B1 was acted upon. Even though the decision cited by him virtually are to the effect that in respect of family property, there could be even oral arrangement without any document of release either registered or unregistered, nonetheless, the factum of such oral release should be proved. But, in this case, my discussion supra would exemplify that the defendants have not proved any such oral release by P1 and P2. Neither in the plaint nor during trial, anything is found spelt out that for any quid pro quo the plaintiffs 1 and 2 relinquished their right over the suit properties. I am fully aware of the fact that as per the aforesaid cited decisions on the side of D1, quid pro quo is not a sine qua non for the release and even without that there could be a valid release. One important factor should not be lost sight of that in the absence of quid pro quo, the burden is very heavy on the person who relies on such oral release to prove that the oral release was in fact took place even without quid pro quo. The robust common sense warrants that, if there is any specific evidence relating to giving and taking of money or quid pro quo between the releasee and the releasor, then that would probablise the theory of oral release. No decision ever has been rendered by any Court that this sort of circumstances should not be insisted upon for proving the theory of oral release.
39. In para No.6 of the written statement filed by D1, there is one cryptic phrase as under:
@///////// ,f;fhuzj;Jf;fhft[k; Vw;fdnt Ke;ijaj;jpy; brhd;d fhuz';fSf;fhft[k; jhth fhynjhc&j;jhUk; ,g;gpujpthjpfs; vjpuDnghfk; fhuzkhft[k; js;Sgoahfjf;fJ/@
40. The learned Senior counsel for the appellant would develop his argument by placing reliance on such cryptic phrase. There is no adequate pleading relating to adverse possession and ouster. Whereas the learned counsel for the plaintiffs would, by citing the decision of the Hon'ble Apex Court reported in 2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others), would develop his argument that it is not as if projected by D1 that prescriptive possession as well as ouster should be presumed as a matter of course. It has become a common or garden principle of law and that too in the wake of the decision of the Hon'ble Apex Court reported in 2007 (4) MLJ 912 that plea of ouster or plea of adverse possession should specifically be pleaded with necessary particulars and clinching evidence should be adduced relating there to. An excerpt from the said decision would run thus:
"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
8. Also See Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard.
9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard.
New consideration in adverse possession law
11. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference:
Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
21. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p.785, para 11) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
22. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5) Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found."
41. A mere perusal of the aforesaid decision would leave no doubt in the mind of the Court that in this case, there is no adequate pleading relating to ouster/adverse possession among the co-sharers. Mere pleading of adverse possession would not be sufficient. There should be a specific plea of ouster. There is a distinction between ouster and adverse possession as in catena of decisions, it has been held that in the case of ouster over and above the evidence required to prove adverse possession, there should be evidence to the effect that the co-sharer was excluded specifically from possessing and enjoying the property and despite such specific exclusion the co-sharer had kept quiet over the period of limitation as contemplated under the Limitation Act. Merely because, adangal extracts and chitta extracts have been produced that would not enure to the benefit of the first defendant to contend that he acquired exclusive title over the properties concerned.
42. It is a trite proposition of law that mere patta would not constitute title and that too when at the time of change of patta, no notice was served on the other co-sharers. The proceedings relating to change of patta has not been filed, even though, at the Appellate Stage voluminous documents as set out supra have been filed before this Court. In this case, peculiarly, even though the brothers of the plaintiffs, viz., D1 and D2 had the opportunity as per their own version to obtain specific release in some form relating to suit properties they, for the reasons best known to themselves did not choose to do so, which exposes their guilty conscious and their intention to clandestinely and surreptitiously enjoy the suit property.
43. The learned Senior counsel for the first defendant by placing reliance on Ex.B6 to Exs.B89, the voluminous documents filed on the defendant's side, would develop his argument that all those documents, such as discharge of the loan incurred by Thandaiammal, the tax receipts, the electricity fee receipts, relating to the suit properties would clearly highlight that D1 and D2 are in possession and that Ex.B1 was acted upon and that the plaintiffs had no role in enjoying the properties.
44. To the risk of repetition, without being tautologous, I would hold that in view of the clear admission by D1 and his witness that even during the life time of Thandaiammal, they were cultivating on behalf of Thandaiammal and they continue to do so, it is no wonder that all those documents are in their possession and that they have been paying taxes/fees relating to the suit properties. In these circumstances, the plea of adverse possession cannot be held to have been proved.
45. The learned Senior counsel for the plaintiffs would also correctly argue that the plea of adverse possession in this case, is antithetical to the plea of release as put forth by D1. It is true that in case of ouster/adverse possession, there is implied recognition by the person, who pleads so, that the person as against whom such pleas are pressed into service were having ownership right over it and that got extinguished in view of the animus in enjoying the suit property by the possessor in accordance with the maxim nec vi nec clam nec precario. It is also clear that in the case of property like the suit property belonging to co-owners possession by one co-owner would amount to possession by the other. Wherefore, in matters of this nature, the quantum of proof required to prove ouster should be weighty enough and not slender, weak, meek or bleak. My above discussion supra would highlight that here the first defendant assumed or presumed for himself that the plaintiffs relinquished their rights. The aforesaid cited decision of the Hon'ble Apex Court would highlight and spotlight the fact that mere enjoyment of a property by a person for over a period of 12 years or so would not in any way confer ownership based on adverse possession.
46. Accordingly, point Nos.1 and 2 are decided as against the defendants.
Point No.3:-
47. In the result, I see no infirmity in the judgment and decree of the trial Court and accordingly, the appeal is dismissed. However, there shall be no order as to costs.
28..08..2008
vj2
Index : Yes
Internet : Yes
To
The Subordinate Judge, Dharmapuri
G.RAJASURIA,J.,
vj2
Pre-Delivery Judgment in
A.S.No.747 of 1990
28..08.2008