Madras High Court
Indirani Ammal vs E. Chandra And Anr. on 4 September, 1992
Equivalent citations: (1993)1MLJ339
JUDGMENT Bellie, J.
1. The plaintiff Indirani Ammal, who has filed a suit for partition, since she is not satisfied with the decree passed partially has filed this appeal.
2. The plaintiff filed the suit alleging as follows: The plaintiff is the daughter of one Thayarammal by her husband Ezhumalai. About 25 years ago Thayarammal left her husband and came to live with one P.V. Gopalan Nair as his mistress. The plaintiff was brought up by them and she was living with them till her marriage. First defendant was born to Thayarammal and Gopalan Nair Plaint Schedule item 1 house property was owned by the plaintiffs mother Thayarammal and Gopalan Nair which has been purchased by them under Ex.A-1 Sale Deed, dated 19.4.1974. The plaint item 2 land measuring 1.09 acres was owned and possessed by Thayarammal and first defendant which has been purchased by them under Ex. A-2 Registered Sale Deed dated 27.1.1972. Thayarammal was thus entitled to a moiety in each of the said properties. Thayarammal pre-deceased Gopalan Nair on 10.10.1975. She left behind the plaintiff and the first defendant as her heirs. Gopalan Nair was not married Thayarammal and she was only her paramour. He also died on 1.8.1978. Both the plaintiff and the first defendant as the heirs of Thayarammal inherited her right to moiety in both the properties. The plaintiff became entitled to 1/4th share in the said properties and the first defendant became entitled to 1/4th share in the first item and 3/4th share in second item. Thayarammal had left a fixed deposit amount of Rs. 10,000, viz., The third item in the plaint schedule with the second defendant Bank. The plaintiff became entitled to a moiety in this deposit amount also. While so the plaintiff learnt that Gopalan Nair had executed a settlement deed in favour of the first defendant on 24.10.1975 purporting to settle the entire first item house. Since Gopalan Nair was entitled to Only a moiety in the said property he was not competent to execute a settlement deed in respect of the other moiety which was owned and possessed by Thayarammal. The settlement deed is void in so far as the plaintiffs 1/4th share is concerned. Since it is no longer possible to be a co-owner with the first defendant the plaintiff had to file a suit for partition of her shares in the three items of properties. She has also prayed for mesne profits in respect of the first item of properties for the past three years.
3. The first defendant resisting the suit contended in her written statement that her father Gopalan Nair got Rs. 10,00,000 in a lottery and with that amount he purchased the suit item 1 in the name of himself and Thayarammal. The purchase in the name of Thayarammal also will not confer any beneficial interest on her and Gopalan Nair had absolute right to settle this property. Gopalan Nair settled this property upon this defendant who is his daughter out of love and affection Just three days after the settlement on this defendant, due to the persuasion of herself and her husband Gopalan Nair settled another house property at No. 4/1, Eswaran Koil Street, Gowripet, Avadi, Madras, worth about Rs. 75,000 on 27,10.1975 in favour of the plaintiff. In view of the fact that the plaintiff was brought up by Gopalan Nair as a sort of family arrangement he settled on her substantial property. For the third item fixed deposit amount also Gopalan Nair did not intend to confer any right on Thayarammal and this defendant was made nominee for that amount and only she is entitled to this amount and the plaintiff cannot have any claim in it. This defendant is not liable to pay any mesne profits to the plaintiff.
4. The second defendant Bank filed a written statement only stating that with regard to third item deposit of Rs. 10,000 it would abide by the orders of the court.
5. The trial court on consideration of the evidence adduced in the case held that in all the three items Thayarammal had beneficial interest and it rejected the case of the first defendant that Gopalan Nair alone had right in them. It further held that subsequent to the settlement deed dated 24.10.1975 in favour of the first defendant in respect of the first item of suit property, Gopalan Nair has executed another settlement deed Ex.B-1, dated 28.10.1975 in respect of another house in favour of the plaintiff and the plaintiff has elected to be satisfied with that settlement deed in her favour and not to claim any share in the suit schedule first item and therefore the settlement deed Ex.A-5 is valid and binding on the plaintiff. It also held that it must be presumed that Gopalan Nair was married Thayarammal. On these findings the trial Court held that the plaintiff is not entitled to any share in the first item property but she is entitled to 1/6th share in the second item and 1/3rd share in the third item.
6. The two questions that arise for consideration in this appeal are:
i. Whether the finding of the trial Court that the settlement deed Ex.A-5 is valid is not correct?
ii. Whether the first finding of the trial Court that Gopalan Nair was the husband of Thayarammal also is not correct?
7. The facts not disputed are, the plaintiff was born to Thayarammal through her father Ezhumalai and when she was an infant (3 years) Thayarammal left Ezhumalai with the plaintiff came to Gopalan Nair and lived with him as a wife. There is no evidence as to whether Ezhumalai was heard thereafter excepting that of the plaintiff as P. W. 1 that she had seen Ezhumalai in her 10th year. It is not in dispute that Gopalan Nair in a lottery got a sum of Rs. 10,00,000 and with that sum he purchased properties both in his name and in the name of Thayarammal and in the joint names of both of them.
8. The first item of suit schedule is a house property purchased in the name of Thayarammal and Gopalan Nair under Ex.A-1 dated 19.4.1972. Another property has been purchased in the name of Gopalan Nair alone under two sale deeds dated 7.12.1969 and 31.5.1971. Gopalan Nair has executed a settlement deed on 24.10.1975 in respect of item I i.e. the property purchased under Ex.A-1 in favour of the first defendant under Ex.A-5 and he executed another settlement deed Ex.B-1 on 28.10.1975, in respect of the other house properly, i.e. the property purchased under two sale deeds dated 7.12.1969 and 31.5.1979 in favour of the plaintiff.
9. It is in evidence that Thayarammal died on 10.10.1975. Therefore, it is seen that the above said settlement deeds have been executed soon after her death. Quite possibly Gopalan Nair wanted to make sure that both the first defendant his own daughter and also the plaintiff who had been brought up by him as his own daughter had separate houses independently free from any dispute or trouble and therefore he executed Ex.B-1 settlement deed in favour of the plaintiff in respect of the house purchased in his name, in favour of the first defendant and Ex.A-5 settlement deed in favour of the first defendant in respect of the house purchased in his name and in the name of Thayarammal.
10. According to the first defendant, under a family arrangement Gopalan Nair executed those two settlement deeds. While Ex.A-5 has been executed on 24.10.1975 in favour of the first defendant Ex.B-1 has been executed just three days after, i.e. on 28.10.1975. It is the evidence of the plaintiff that she has not raised any objection with regard to the settlement Ex.A-5 until the time of the death of Gopalan Nair. It is her further evidence that after the settlement deeds for six months Gopalan Nair was with the first defendant in the Annamalaipuram house which has been settled on the first defendant thereafter for six months he was living with the plaintiff in Avadi house (which has been settled on the plaintiff); and then he went to. Kerala and there he died. It may be recalled that both the houses have been purchased by Gopalan Nair only with his own funds. These facts probabilise that it was under some family arrangements as contended by the first defendant these two settlement deeds were executed.
11. Besides the defendant as D.W.1. D.Ws. 2 Batcha Mohideen and D.W.I Gabriel also have given evidence that under an arrangement arrived at in the family in which the plaintiff as well as her husband also participated Gopalan Nair executed, the two settlement deeds. D.W.2 is the attestor and D.W.3 is the writer of both the settlement deeds. The plaintiff (P.W. 1) has admitted in her evidence that it is only under Ex.B-1 she is in enjoyment of the Avadi house.
12. The trial Court seems to think that there is no sufficient evidence to show that there was family arrangement but however it took the view that the evidence and the circumstances show that the plaintiff elected to be satisfied with the Avadi house settled in her favour and not to claim any right in the other Annamalaipuram house. It appears the trial Court did not believe the evidence regarding the alleged family arrangement mainly for the reasons that D.Ws.1 to 3 have stated that the plaintiff executed a release deed, but no such release deed has been filed. But I do not think that for that reason alone the evidence of D.Ws. can be rejected. There may be some discrepancies in their evidence. But I do not see any material discrepancy that affects the voracity of their evidence. In my view, the circumstances in the case are tell-tale that it was only under some agreed family arrangement the settlement deeds were executed and the plaintiff took possession of the Avadi house.
13. It is argued by Mr. N. Varadarajan, learned Counsel for the appellant-plaintiff that no mention whatsoever has been made either in Ex.B-1 on in A-5 about any family arrangement or that the plaintiff elected to have the Avadi house. That may be so. But in the circumstances Gopalan Nair might have thought that such averments, especially when it is he who purchased both the houses and he is giving them are not necessary in the documents.
14. It is then contended that only in the case of same transaction the question of election under Section 35 of the Transfer of Property Act arises, but in this case there are two transactions one under Ex.A-5 and another under Ex.B-1. But to be the same transaction the transaction need not necessarily be under one document only. As pointed out above whereas Ex.A-5 has been executed on 24.10.1975. Ex.B-1 has been executed just three days after, i.e., on 28.10.1975. Gopalan Nair has died on 1.8.1975, i.e., more than 2 1/2 years after the settlement deeds and as pointed out above, the plaintiff when he was alive, did not raise any objection whatsoever regarding Ex.A-5.
15. Mr. Varadarajan, would further submit that whereas the value of the Avadi property as seen from the value stated in Ex.B-1 is only Rs. 40,000 the value of the Annamalaipuram property as seen from the value stated in Ex.A-5 is Rs. 1,25,000 and this shows that the plaintiff would not have elected as contended. But here it is to be again recalled that both the properties were purchased by Gopalan Nair, but for the settlement deed Ex.B-1 will not have any right in the Avadi property and in the Annamalaipuram property she would have had a share only in respect of the share of her mother Thayarammal in which share the first defendant will also be entitled to a share. From all these it appears to me very clear that both Exs.A-5 and B-l has been executed as parts of the same transaction and the plaintiff had elected to be satisfied with the Avadi house property.
16. Mr. Varadarajan on a decision in Ramayya and Anr. v. Mahalakshmi A.I.R. 1922 Mad. 357, wherein it has been held that:
Although the doctrine of election provides that a man is not at liberty to take under a Deed or Will and at the same time to dispute the operation of that Deed or Will in other respects, yet a person who accepts the benefit under a Will is not precluded from disputing some transaction in which the testator was engaged long before his death and which is not the subject of the Will at all.
It is apparent even from the passage quoted above that the facts in that case are entirely different from the facts in our case. Therein the dispute was in respect of a transaction long before the testator's death and therefore it was held that no election under the Will can be pleaded. Hence this judgment is of no help to the plaintiff.
17. Mr. Varadarajan cited another decision also in Makineni Virayya v. Mad Amanchi Bapayya (1945)2 M.L.J.208 : A.I.R. 1945 Mad. 492, wherein too the facts are entirely different from the facts in the present case. This is clear from the following passage in the judgment:
On the facts of this case, there can be no question, of election in the strict sense of the doctrine, for at the time when the plaintiff is supposed to have made his election he could not have given up the property which he now claims as he became entitled to it only long after.
Mr. Varadarajan however further submits that this judgment would also show that the person who is said to have elected must have got the benefit under the same instrument and in this connection he points out a sentence in the judgment which reads:
And moreover, for the purpose of this doctrine the person sought to be precluded from setting up his right must have taken some benefit directly under the instrument.
But this has been said in the circumstances of that case where there was only one instrument. The judgment does not say that there can be one instrument only. Section 35 of the Transfer of Property Act contemplates "same transaction" and not "same instrument". In Mulla's Transfer of Property Act, Seventh Edition, at page 159 under the heading 'same transaction' it is stated that 'election may arise when the two donations are conferred by two different instruments, if the two instruments are used to carry out one transaction'. In consideration of the said facts and circumstances in the case I am satisfied that the lower court has correctly held that the plaintiff has elected to be satisfied with the execution of the settlement deed Ex.B-1 in her favour in respect of the Avadi house and not to claim any right in the Annamalaipuram property settled under Ex.A-5 in favour of the first defendant.
18. Coming to the question as to whether Thayarammal was the wife of Gopalan Nair as held by the Court below, Mr. Varadarajan would contend that it is nobody's case that Ezhumalai-father of the plaintiff died and unless the husband is dead a wife cannot marry a second time and therefore it cannot be believed that Thayarammal had married Gopalan Nair. There is no doubt that there is considerable force in this argument of the learned Counsel.
19. It is contended on behalf of the first defendant that under Section 108 of the Evidence Act if a person is not heard of for seven years he must be presumed to have died and since Ezhumalai had not been heard of for the last 20 years he must be presumed to have died. As per Section 107 of the Evidence Act "when the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it". Then Section 108 states that "provided that when the question is whether a man is alive or dead and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it". A combined reading of these two sections would show that it is only upon proof that a person concerned has not been heard of for seven years by those who would have naturally heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it that he is alive.
20. Mr. Varadarajan would rightly point out that there is no evidence whatever to show that for seven years Ezhumalai was not heard of by those who would naturally have heard of him if he had been alive. The plaintiff (P.W. 1) alone has just Stated that she has seen her father Ezhumalai when she was 10 years only From this alone it cannot be stated that it has been proved that Ezhumalai has not been heard of for seven years by those who would have naturally heard of him if he had been alive. It follows therefore that there is no burden on the first defendant to show that he is alive. In these circumstances, it cannot be held that it can be presumed that Ezhumalai was not heard of Gopalan Nair married Thayarammal. In those circumstances, it is difficult to believe that Gopalan Nair married Thayarammal.
21. No one has spoken to any such marriage. The only argument is that it is even admitted by the plaintiff herself that Gopalan Nair and Thayarammal had been living as husband and wife throughout and from this it could be presumed that there was marriage. That would arise only in case if Ezhumalai had died. May be in the reply notice sent by the first defendant's counsel to the plaintiffs counsel it is stated that Thayarammal became the wife of Gopalan Nair in or about 1952. But this version by the first defendant herself will not help her to establish that there was any marriage between Gopalan Nair and Thayarammal. In Ex.A-1 sale deed dated 19.4.1972 executed by one Saroja Somayaji in favour of Gopalan Nair and Thayarammal it is mentioned that Thayarammal is the wife of Gopalan Nair. May be thinking that Thayarammal is the wife of Gopalan Nair, the vendor mentioned so in the document.
A reference in Winslow's 'A comprehensive Tamil and English Dictionary' at page 27 would show that the meaning of Abhimana Bariyal' which means 'Abhimana Manaivi' would only mean someone other than the real wife and that could be concubine. If a wife is to be referred to only as wife (Manaivi) and there is absolutely no necessity to refer to her as 'abhimana manaivi' or 'abhimana bariyal'. This itself would show that an 'abhimana bariyal' is not a wife. It is therefore clear that it cannot be held that Thayarammal was the wife of Gopalan Nair as the trial Court did.
23. Now in as much as Thayarammal was not the wife of Gopalan Nair as held above, the plaintiff will be entitled to 1/4th share in the second item and half share in the third item.
24. In the result, the appeal is partly allowed, the judgment and decree of the court below are confirmed as regards the first item property is concerned and it is modified as regards items 2 and 3 i.e. the plaintiff will be entitled to 1/4th share in the second item and 1/2 share in the third item and not 1/6th share in the item 2 and 1/3rd share in item 3 as held by the trial court. The appeal is thus disposed of, There will be no order as to costs.