Madras High Court
G.K.Palani Gounder @ Mani vs Kanakambal (Died) on 18 August, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICIATURE AT MADRAS DATED: 18..08..2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.579 of 1994 1. G.K.Palani Gounder @ Mani 2. G.K.Kaliannan .. Appellants Vs. 1. Kanakambal (died) 2. Kaliammal 3. Krishnaveni 4. Akilandeeswari 5. K.M.Palanisamy 6. G.P.Sivakumar 7. G.P.Senthilkumar 8. G.K.Arumugam @ Selvaraj 9. Ambiga Devi 10.N.N.Murugaian 11.Devaki 12.K.C.Kaliannan 13.K.C.Venkatraji 14.Jayammal 15.K.C.Sridhar .. Respondents RR11 to 15 brought on record as L.Rs of the deceased first respondent vide order of Court dated 25.06.2008 made in C.M.P.No.3446 of 2007 Appeal filed against the judgment and decree dated 24.01.1994 passed in O.S.No.193 of 1988 on the file of the learned Subordinate Judge Gobichettipalayam. For Appellants : Mr.R.T.Doraisamy For Respondents : Mr.B.Raveendran for R4 Mr.P.Pandi for RR11 to 15 JUDGMENT
This appeal is focussed as against the judgment and decree dated 24.01.1994 passed in O.S.No.193 of 1998 on the file of the learned Subordinate Judge, Gobichettipalayam, which is a suit for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. Succinctly and precisely, pithily and tersely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:
a) The deceased G.K.Kalianna Gounder and his wife Velayammal D4 herein (who died during the pendency of the suit) gave birth to four sons, viz., D5, D6, D10 and the deceased Pongaianna Gounder, the father of D8 and D9 herein and four daughters viz., the plaintiff herein and D1 to D3. The suit properties described in the schedule of the plaint originally belonged to the said deceased G.K.Kalianna Gounder. The item No.2 of the suit properties, which is a house was purchased by the deceased Kalianna Gounder in the name of his wife Velayammal (D4) and as such D4 was not the owner of the second item of the suit properties. However, G.K.Kalianna Gounder and Velayammal desired to bequeath both the items of the suit properties in favour of their daughters, viz., the plaintiff and defendants 1 to 3; whereupon, they jointly executed a Registered Will dated 02.03.1977 in favour of their daughters the plaintiff and D1 to D3 to take the suit properties equally; the said G.K.Kalianna Gounder died 10 years anterior to the filing of the suit. Thereupon the beneficiaries under the Will became the owners of the suit properties and they allowed D4 to retain the second item of the suit properties wherein D3 and D4 are residing. D5 and D6 being the sons of D4 were keeping her under their control and she became weak in intellect; she sustained fracture of her hip bone; she was suffering from forgetfulness and lapse of memory and she was also bed-ridden. D5 and D6 taking undue advantage of her physical and intellectual weakness brought about a Will dated 02.03.1977 as though she executed it, bequeathing the suit properties in their favour. D4 did not execute the said Will voluntarily and while she was in a sound state of mind.
b) They also brought about a mortgage deed dated 08.08.1988 as though she executed it in favour of D7 concerning the suit property for a sum of Rs.50,000/-. She had no necessity at all to borrow such a sum of Rs.50,000/- and she had no right to execute such a Will in favour of D5 and D6. During the pendency of the suit, D4 is purported to have sold 10 cents of land in item No.1 of the suit properties to D12 as per sale deed dated 12.10.1988 and it was not supported by any consideration. During the pendency of the suit, D4 died on 11.03.1991 leaving behind her legal heirs, who were already parties in the suit and defendants 8 to 11 also were added as her legal heirs.
3. Remonstrating and gainsaying, D4 during her life time filed the written statement with the averments, the pith and marrow of them would run thus:
D4 was not aware of the fact as to whom the item No.1 actually belonged; but, her husband proclaimed that he had right over it to execute the Will. Item No.2 of the suit properties was purchased by D4 from out of her own funds and it did not belong to her husband. Since D4 happened to be the owner of the second item of the suit properties, she executed Ex.A3 Will dated 02.03.1977 along with her husband G.K.Kalianna Gounder. Subsequently, the testators got highly dissatisfied with his daughters and wanted to cancel his earlier Will Ex.A3 and intended to bequeath the suit properties to his sons. The said Will Ex.A3 was not intended to be acted upon. D3 was not in occupation of the item No.2 of the suit properties. Even though D4 sustained fracture, nonetheless, she was not suffering from mental weakness. Ex.B8 was executed by her voluntarily while she was in a sound disposing state of mind and that she cancelled the earlier Will, Ex.A3. The mortgage deed dated 08.08.1988 was executed by her in favour of D7 for valid consideration.
Accordingly, she prayed for the dismissal of the suit.
4. Remonstrating and impugning, the averments/allegations in the plaint, D5 filed the written statement, which was adopted by D6.
By virtue of the Partition Deed dated 10.02.1960, the first item of the suit properties and other properties were divided among the co-sharers and the properties referred to in the B and C schedules of such Partition Deed were allotted to D5 and his brother Pongianna Gounder. The item No.1 of the suit properties, therefore, belongs to this defendant and his brother deceased Pongianna Gounder, the father of D8 and D9. As such, the deceased G.K.Kalianna Gounder had no right to Will away the first item of the suit properties. The second item of the suit properties belonged to D4 as she purchased from out of her exclusive funds. G.K.Kalianna Gounder did not execute Ex.A3 the Will out of his free Will and he had no right to execute the Will in respect of the first item of the suit properties. D4 in a sound and disposing state of mind executed her last Registered Will Ex.B8 dated 21.07.1988 superceding the earlier Will,Ex.A3. The mortgage executed by her in favour of D7 is valid. Accordingly, he prayed for the dismissal of the suit.
5. D10 filed the written statement, setting out various averments, the warp and woof of them would run thus:
Ex.B8, the Will dated 21.07.1988 was not executed by D4 out of her own free will and volition and she did not execute the said mortgage deed in favour of D7 voluntarily for valuable consideration. One "Nell Veedu", which is not the suit property herein and which happens to be the co-parcenery property, was included in Ex.B8 and that would vitiate the entire Will. The recitals in the Will Ex.B8 would indicate that the Will was not executed out of her free Will.
Accordingly, he prayed for the dismissal of the suit.
6. D12 adopted the written statement filed by D4.
7. The plaintiff filed the reply statement, denying and refuting the allegations in the written statement filed by the contending defendants as under:
The deceased G.K.Kalianna Gounder during his life time and thereafter following him the defendants 1 to 3, have been in possession and enjoyment of the first item of the suit properties openly, continuously, peacefully without any interruption for over 20 years in their capacity as their owners and thereby they perfected their title over it by adverse possession. Ex.B8, the Will and the Mortgage deed were all cooked up documents.
Accordingly, she prayed for decreeing the suit.
8. The trial Court framed the relevant issues. During trial, the plaintiff examined herself as PW1 along with P.Ws.2 and 3 and Exs.A1 to A19 were marked. On the side of the defendants D.Ws.1 to 3 were examined and Ex.B1 to Ex.B9 were marked. Ultimately the trial Court decreed the suit allotting < th share in favour of the plaintiff in the suit properties.
9. Being dissatisfied with and aggrieved by the judgment and decree of the trial Court, the defendants 5 and 6 have filed this appeal on the following grounds among others:
(i) The judgment and decree of the trial Court are against law, weight of evidence and all probabilities of the case.
(ii) The partition deed dated 10.02.1960 had put an end to the joint status of the co-parcenery but the trial Court failed to take note of it. After such partition deed, G.K.Kalianna Gounder had no right over the first item of the suit properties and he could not have validly executed Ex.A3, the Will in respect of the first item of the suit properties.
(iii) The trial Court erroneously held that the said Ex.A3 Will dated 02.03.1977 as a genuine and valid one.
(iv) After holding that the family arrangement as pleaded by the plaintiff was not tenable as per law, the trial Court simply accepted erroneously the plea of adverse possession as pleaded by the plaintiff and decreed the suit. In the plaint, no plea of adverse possession was pleaded but subsequently, in the reply filed by the plaintiff, she raised such a plea and no issue was framed relating to adverse possession; nonetheless the trial Court decreed the suit, accepting the plea of adverse possession.
(v) The issues 2 and 8 have not been discussed and decided properly by the trial Court.
(vi) The trial Court wrongly held that the shares already partitioned in the year 1960 were allotted to G.K.Arumugam during the year 1968.
(vii) The fifth defendant deposed that he did not know whether the first item of the suit properties was allotted to G.K.Kalianna Gounder in the year 1968 during the alleged family arrangement. But, on the other hand, he specifically contended that it was not allotted to his father.
(viii) The trial Court after giving a finding that the second item of the suit properties was the separate property of D4, erred in holding that the daughters, viz., the plaintiff and defendants 1 to 3 are entitled to shares as per the joint Will dated 02.03.1977.
(ix) The trial Court ignoring the written statement filed by D4 herself that she executed validly Ex.B8 in cancelling Ex.A3, decreed the suit.
Accordingly, the appellants prayed for setting aside the judgment and decree of the trial Court and forthe dismissal of the original suit.
10. The points for consideration are as to:-
1. Whether the partition deed Ex.A9 dated 10.02.1960 was valid and acted upon or whether it was superceded or modified by family arrangement during the year 1968?
2. Whether G.K.Kalianna Gounder was the owner of the first item of the suit properties as on the date of emergence of Ex.A3?
3. Whether D4 was the absolute owner of the second item of the suit properties as on the date of the emergence of Ex.A3 Will and whether G.K.Kalianna Gounder and D4 are proved to have validly executed Ex.A3?
4. Whether Ex.A3 is a valid joint Will and if so, whether after the death of one of the testators G.K.Kalianna Gounder,his wife D4 alone the one other testator had the right to revoke the Will?
5. Whether Ex.B8 is a genuine Will and whether it was proved in accordance with law?
6. Whether the mortgage deed dated 08.08.1988 was executed voluntarily by D4 in favour of D7 for valid consideration?
7. Whether the plea of adverse possession as upheld by the trial Court is tenable?
8. Whether there is any infirmity in the judgment and decree of the trial Court?
11. Heard the learned counsel appearing on either side.
Point Nos.1, 2 and 3:-
12. These points are taken together for discussion as they are inter-linked and inter-woven with each other.
13. The learned counsel for the appellants/defendants 5 and 6 would advance his argument to the effect that Ex.A9, the Registered Partition Deed dated 10.02.1960 is a valid document, which was acted upon and there was nothing to indicate that it was revoked or any re-union deed emerged among the co-sharers quite antethetical to whatever envisaged in Ex.A9, as per which, the first item of the suit properties admeasuring 1 acre and 62 cents of agricultural lands was allotted to D5, the eldest son and to his one other son Pongianna Gounder, who died in the year 1975; the said G.K.Kalianna Gounder died during the year 1978 and in such a case, there is no rhyme or reason on the part of the plaintiff and some of the descendants of G.K.Kalianna Gounder in supporting the cause of the plaintiff that Kalianna Gounder and his wife D4 executed the Will Ex.A3 bequeathing the first and second item of the suit properties in favour of the plaintiff and others; and the second item of the suit properties happened to be the exclusive property of D4, who executed Ex.B8, the Will revoking the earlier Will Ex.A3 and bequeathing the first and second item of the suit properties in favour of D5 and D6.
14. Per contra, the learned counsel for the respondent/plaintiff would put forth his argument that during the year 1968, there emerged a family arrangement under which the family properties were allotted to the various sharers and in that process G.K.Kalianna Gounder came into possession of the first item of the suit properties relating to his exclusive share; whereupon he and his wife D4 realising and understanding, considering and viewing that their daughters were not given any property, did choose to execute Ex.A3, the Registered Will dated 02.03.1977 bequeathing the first and second item of the suit properties in favour of them and however, surprisingly, after the death of Kalianna Gounder, D5 and D6 managed to bring about Ex.B8, the Will as though D4 executed it, revoking the earlier Will Ex.A3 in toto and bequeathing the items 1 and 2 of the suit properties in favour of D5 and D6.
15. At this juncture, it is worthwhile to highlight that the contesting parties are not at variance or at logger heads or at daggers drawn relating to one point that the second item of the suit properties originally happened to be the absolute property of D4.
16. The pertinent question arises as to whether the first item of the suit properties, which was obviously and apparently allotted as per Ex.A9 to the share of D5 and the deceased Pongianna Gounder, the father of D8 and D9, could be taken as the absolute property of G.K.Kalianna Gounder at the time of executing Ex.A3, the Will.
17. The learned counsel for the appellants/defendants 5 and 6 would contend that the trial Court fell into error in simply assuming and presuming as though there had been a family arrangement among the co-sharers in the year 1968 even though no document was exhibited on their side; as against the terms and conditions of Ex.A9 the registered document, no party should be heard to contend anything quite antethetical to such terms and conditions.
18. Per contra, by way of remonstrating and tarpedoing such an argument, the learned counsel for the respondents/plaintiff would convincingly argue that the circumstances, which emerged subsequent to the execution of Ex.A9, the Partition Deed should be taken into consideration and if done so, it would exemplify and demonstrate without any doubt that the terms and conditions in Ex.A9 got varied and modified by subsequent family arrangement even though precisely no document was placed before the Court. He would draw the attention of this Court to the deposition of D.W.2 (D5) and advance his argument that D5 himself candidly and categorically made a supine admission that it was he who identified the testators before the Sub Registrar at the time of registering Ex.A3 the Will, which indubitably and incontrovertibly evidences that the testators bequeathed the first item of the suit properties, which was purportedly allotted to the share of D5 and Pongianna Gounder under Ex.A9. He would also develop his argument that such conduct on the part of D5 would unambiguously spotlight the fact that D5 had no objection for his parents in bequeathing the said first item of the suit properties in favour of the daughters of the testators and that in such a case, he should not be allowed to veer round and take pleas quite antethetical to what he committed himself by identifying the testators before the Sub Registrar at the time of registering the Will Ex.A3.
19. There is considerable force in the submission made by the learned counsel for the plaintiff as in the family, next to G.K.Kalianna Gounder, D5 happened to be the eldest male member and he cannot be heard to contend that he was not aware of the contents of Ex.A3, the Will. At this context, my mind is redolent with the famous legal adage that preponderance of probabilities would govern the adjudication in civil cases. The Court cannot turn its face away from reality and robust common sense would warrant that eldest male member like D5 in a family after signing as identifying witness to the Will of his parents, should not be allowed to turn turtle and have a volte face and contend as though he simply identified the testators and that he did not know about the purpose for which the Will was executed. Appropriately and appositely, the learned counsel for the plaintiff would succinctly put forth the point that as per D5, he happened to be the owner of the first item of the suit properties along with Pongianna Gounder and in such a case, he cannot be heard to contend that he signed as identifying witness in the Will without knowing the contents even though as per the very Will, his alleged property was being bequeathed to his sisters. The Court cannot turn its face away from reality but cutting across technicalities, should view and visualise the actual happenings and occurrences, which emerged in the family. Even though the plaintiffs might not be in a position to demonstrate and exemplify that there took place a family arrangement in the year 1968, nonetheless the very emergence of Ex.A3 with the assistance of D5 would speak volumes that there took place some re-arrangement of properties in the family, in owning and enjoying the properties of the family and in that process Kalianna Gounder was entrusted with the absolute right and enjoyment over the first item of the suit properties.
20. The provability and demonstrability of the genuineness of Ex.A3 and that Kalianna Gounder happened to possess absolute right to alienate over the first item of the suit properties, is found reflected in the admission of D5 in his deposition that it was he who identified the testators in Ex.A3 the Will under which, the first and second item of the suit properties were bequeathed in favour of the testators' daughters.
21. The nub of the plea of the plaintiff that the first item of the suit properties was under the ownership and enjoyment of Kalianna Gounder despite Ex.A9 Partition Deed dated 10.02.1960, could find support from Exs.A11 to A17, the Adangal extracts relating to fasli years 1380 to 1391, which would evince and evidence that relating to the first item of the suit properties in the Adangal the name of G.K.Kalianna Gounder alone is found specified and not the name of either D5 or Pongianna Gounder. In fact the sons of Pongianna Gounder, viz., D8 and D9 would not lay claim over the first item of the suit properties even though as per the recitals found in Ex.A9, the Partition Deed, their father was described as one of the owners of it. Had really that much portion of Ex.A9 was acted upon relating to the first item of the suit properties, then D8 and D9 being the owners of part of the first item would not have kept quiet. As such, this is also an additional factor in support of the contention of the plaintiff that there had been some family arrangement under which, G.K.Kalianna Gounder was conferred with the right of ownership and enjoyment over the first item of the suit properties. In fact, D8 and D9 remained ex parte. However, D9 was examined as PW3, who in his deposition without minching words would ex-fatiate that the first item of the suit properties had never been under the enjoyment by either Pongianna Gounder or his sons including DW3; G.K.Kalianna Gounder alone enjoyed it and executed the Will bequeathing the first item in favour of his daughters; consequent upon the death of G.K.Kalianna Gounder during the year 1978, his beneficiaries under the Will, ie., the plaintiff and her sisters started enjoying the properties as per the Will; during the partition, which emerged on 23.03.1978 as per Ex.B10, certain items of properties were partitioned between D5 on the one side and the legal heirs of Pongianna Gounder on the other side and in that the first item of the suit property was not referred to as one among the properties.
22. D5 as DW2, would try to expound and explain away unsuccessfully and unsatisfactorily, the fact of no steps having taken to effect mutation in the revenue records relating to the first item of the suit properties by pointing out as though the land was lying fallow. He has not given any reason as to why he allowed the land to lie fallow for such long number of years. It is therefore, amounting to candid admission on his part that he did not cultivate the first item of the suit property by taking possession under Ex.A9. In fact, during cross examination, DW2 (D5) would admit that during the year 1968, there was an attempt to effect re-shuffling in the shares allotted under Ex.A9 and that it did not fructify. However, his subsequent conduct in participating in one way or other in the execution of Ex.A3, the Will by the testators, would expose that he agreed for such bequeathal of the first item of the suit properties by his father in favour of his daughters.
23. Glaringly and apparently, it is evident from the deposition of DW3 (D10) coupled with the other factors discussed supra, that as on the date of emergence of Ex.A3 the Will, it was Kalianna Gounder, who had been in possession and enjoyment of the first item of the suit properties as absolute owner having the capacity to will away as per Ex.A3. It is too late in the day on the part of D5 to resile from his earlier commitment, to wit his consent to Ex.A3 and contend otherwise.
24. The learned counsel for the appellants would contend that once there is a registered Partition Deed, in the form of Ex.A9, the question of varying the terms and conditions of such a Partition Deed would not arise and even for argument sake, it is taken that D5 identified the testators of Ex.A3, the Will before the Registrar, nonetheless his valuable right relating to a part of the first item of the suit properties cannot be taken as one eroded by his conduct unless there is one other registered deed superceding the terms and conditions as contained in Ex.A9. Such an argument cannot be countenanced for the reasons infra. The partition deed is on a different footing than any other deed. In a partition deed, there is no transfer inter-vivos involved. It is declaratory and not transitory in nature.
25. It is a common or garden principle that a family arrangement could be oral and there could be no quarrel over such a proposition. The pertinent question arises as to whether after a registered partition deed, there could be oral family arrangement in adjusting certain items already allotted under the registered deed. In my considered opinion, there is no illegality and impropriety on the part of the co-sharers who were parties to the earlier partition deed to agree for variation relating to re-shuffling of certain items or for adjusting certain items depending upon the convenience of the co-sharers. Absolutely, there is no law prohibiting such family arrangement even after the emergence of a Registered partition deed. In this view of the matter, the plea as put forth by the plaintiff cannot be taken as one anathema to law or justice and fair play.
26. I am fully aware of the implication of Sections 91 and 92 of the Indian Evidence Act. Nonetheless, once in the legal parlance, oral family arrangement is contemplated certainly among the family members and the co-sharers, de hors Section 91 and 92 of the Indian Evidence Act, there could be a valid family arrangement and there is no legal embargo to plead before the Court. It is worthy to recollect at this juncture, that the witnesses may lie but the circumstances would not lie. In this factual matrix, it is clear that after Ex.A9 so far item No.1 of the suit properties is concerned, it was not acted upon by actual delivery or allotment of the first item of the suit properties in favour of D5 and Pongianna Gounder even though the registered partition has taken place as early as in the year 1960.
27. The core question arises then is, what should be the natural inference. If a person claiming right under the partition deed relating to a particular item, remains out of possession ever since 1960 till 1988 and only thereafter contends as though that item was allotted to him in the partition, a fortiori such a plea cannot be countenanced as true. But on the other hand, the probabilities in the plea of the plaintiff could rightly be understood from the circumstances that even though under Ex.A9 part of the first item of the suit properties was allotted to D5, nonetheless, it was not acted upon, but it was allowed to be in the possession and enjoyment of G.K.Kalianna Gounder as his own property and he was also recognised as competent to execute the Will in respect of the said first item by the express consent of D5 himself. In such a case, D5 cannot be heard to contend otherwise. There is also no modicum or miniscule extent of evidence to indicate that ever since 1960 or at any point of time D5 even though he happened to be the eldest male member was in possession and enjoyment of the said part of the property. On the contrary, the descendants of Pongianna Gounder, the one other beneficiary under Ex.A9 relating to the other part of the first item of the suit properties, would candidly submit that the portion of the partition deed relating to the first item of the suit properties was allowed to be with G.K.Kalianna Gounder as his own property.
28. The learned counsel for the plaintiff would also draw the attention of this Court to the discussion in the lower Court's judgment relating to the fact as to how the male members enjoyed the properties. In fact, Ex.A10 is the certified copy of the Partition Deed dated 23.03.1978, which emerged between D5 on the one side and D8 and D9, the then minor children of Pongianna Gounder represented by their mother and natural guardian on the other side, relating to partitioning of certain items of properties, which are not the subject matter of this suit and in that partition deed, there is no whisper about item No.1. As such, the learned counsel for the plaintiff would develop his argument that had really D5 and Pongianna Gounder had taken over it under Ex.A1, then they would have partitioned the first item of the suit properties also. However, the learned counsel for the appellants/D5 and D6 would put forth his argument that under Ex.A9, no joint allotment was given to D5 and Pongianna Gounder and that there had been no necessity to refer to the first item of the suit properties in Ex.A10.
29. But the fact remains that as per Ex.A9, i.e., the first item of the suit properties was allotted to D5 and Pongianna Gounder. But D5 himself would admit that ever since the emergence of Ex.A9, the land has been lying fallow without cultivation and because of that alone no mutation in the revenue records was effected. But the plaintiff by marking the necessary Adangal Exs.A11 to A17 as stated supra in the name of G.K.Kalianna Gounder proved that it was under the cultivation of G.K.Kalianna Gounder and crops such as paddy, plaintain and cholam were cultivated. The documentary evidence and oral evidence and the circumstances therefore, clearly expose the contention of D5 that the first item was not under cultivation and that was why, there had been no mutation. All these facts would cumulatively also support the contention of the defendants that subsequently, as per the family arrangement D5 and the descendants of Pongianna Gounder allowed the first item under the absolute ownership of G.K.Kalianna Gounder.
30. The question might arise as to whether the plaintiff proved Ex.A3 the Will is in accordance with law? Unassailably as could be seen from the judgment of the trial Court that out of the two witnesses, who attested Ex.A3, one of the attesting witnesses died and yet one another witness, who was sick and bed-ridden was sought to be examined on commission, which also admittedly ended in a fiasco for the reason that the witness was unfit to give any deposition in view of his physical and mental weakness. In such a case, D5 cannot raise his accusitive finger as against the plaintiff for having not proved the Will in accordance with Section 68 of the Indian Evidence Act.
31. The question might arise as to how then in the absence of availability of attesting witnesses, the Will could be proved. Section 69 of the Indian Evidence Act, provides answer to it and it is reproduced here under for ready reference.
"69. Proof where no attesting witness found:- If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."
Keeping in concinnity with the aforesaid provision of law, PW2 Mohana Murugan, the scribe of the Will Ex.A3 was examined, who without minching words and beyond attracting any dubious element would clearly and categorically, depose to the effect that it was he who scribed the Will and he had seen both the testators, viz., G.K.Kalianna Gounder and D4 Velaiammal signing the Will and the two attesting witnesses also putting their signatures in the Will as attestors to the knowledge and seeing of the testators. The evidence, coupled with the very admission of the appellants, to the effect that one of the testators, viz., D4 Velaiammal revoked the earlier Will Ex.A3 and executed the new Will Ex.B3 would speak volumes that the due execution of the Will by the testators was beyond doubt.
32. In the result,
(i) Point No.1 is decided to the effect that the Partition Deed Ex.A9 dated 10.02.1960 is proved to be a valid and genuine Will executed by the testators.
(ii) Point No.2 is decided to the effect that G.K.Kalianna Gounder was the owner of the first item of the suit properties as on the date of emergence of Ex.A3 Will.
(iii) Point No.3 is decided to the effect that D4 was the absolute owner of the second item of the suit properties as on the date of emergence of Ex.A3 Will.
Point Nos.4, 5 and 6:
33. The plea of the appellants is that D4 volitionally and voluntarily executed Ex.B8 the Will dated 21.07.1988 in respect of the first and second item of the suit properties in favour of D5 and D6 her sons revoking her earlier Will Ex.A3.
34. Admittedly, as on the date of emergence of Ex.B8, the said G.K.Kalianna Gounder one of the testators under Ex.A3 died and hence the question arises as to what was the nature of Ex.A3 Will. Both sides in unison would admit that Ex.A3, is a joint Will and it is not a mutual will. In such a case, I need not dilate on analysing various decisions relating to Joint Will and Mutual Will. Even then, the learned counsel for the appellants cited the following decisions to demonstrate that Ex.A3 is a Joint Will and not a Mutual Will.
(i) AIR 1959 SC 71 (Kochu Govindan Kaimal and others vs. Thayankoot Thekkot Lakshmi Amma and others) and
(ii) AIR 1964 Madras 291 (Kuppuswami Raja and another vs. Perumal Raja and others) An excerpt from the decision rendered by the Hon'ble Apex Court reported in AIR 1959 SC 71, would run thus:
"6. The sole point for determination in these appeals is whether under the Will all the three testators became joint owners of all the properties on which it operated. After hearing the question fully argued, we have come to the conclusion that that is not the effect of the Will, and that the judgment of the High Court contra cannot be supported. There were three executants of the Will. Each of them possessed properties, which were his or her self-acquisitions. They also owned some properties which they had jointly acquired, but their title to such properties was as tenants-in-common and not as joint tenants. Each of them would have been entitled to execute a Will of his or her properties and if that had been done, by the legatees named therein would undoubtedly have been entitled to those properties. In the present case, the legatees who were intended to take were the same persons, and it was for that reason that the three testators instead of each executing a separate will jointly executed it. It is, nevertheless, a will by which each testator bequeathed properties belonging to him or to her, and therefore on the death of each testator, the legatees mentioned in the will would be entitled to the properties of the testator, who dies."
and an excerpt from the Division Bench judgment of this Court reported in AIR 1964 Madras 291 would run thus:
11. A joint Will is a single testamentary instrument constituting or containing the Wills of two or more persons and jointly executed by them; while mutual Wills are the separate Wills of two or more persons which are reciprocal in their provisions and executed in pursuance of compact or agreement between two or more persons to dispose of their property to each other or to third persons in a particular mode or manner. Mutual Wills as distinct from Joint Wills are sometimes described as reciprocal Wills. In describing a Will the adjective "Mutal" or "reciprocal" is used to emphasise and denote the contractual element which distinguishes it from a Joint Will."
32. ...................
"We confess that the matter is not free from difficulty. But after a careful consideration of all the aspects of the matter, we are inclined to take the view that a joint mutual Will becomes irrevocable on the death of one of the testators if the survivor had received benefits under the mutual Will, and that there need not be a specific contract prohibiting revocation when the arrangement takes the form of not two simultaneous mutual Wills but one single document. In fact in some of the cases referred to above this aspect that if the two testators had executed one single document as one single mutual Will the position may be different is actually adverted to. In our opinion, if one single document is executed by both the brothers using the expressions "our property" "our present wishes" "our Will" and such similar expressions, it is strong cogent evidence of the intention that there is no power to revoke except by mutual consent."
46. I am fully in agreement with the conclusions of my learned brother expressed in his judgment, of which I have had the advantage of perusal. If I am adding a few observations of my own, it is not because I think that there is really any difficulty upon the facts of the present case, or the interpretation of the terms of Ex.A1 in the setting in which it came to be executed by the two brothers. Judged by every test, as my learned brother has shown, the Will is a mutual and reciprocal one, and having obtained benefits under such a Will executed with a patent stipulation that it could only be revoked or altered during the lives of both testators (that being the fair and obvious interpretation of the Tamil text, in the light of the probabilities), the testator who survived Perumal Raja, could not validly revoke or alter the dispositions, under his later Will, Ex.B1. ........
51. As far as this country is concerned, the emphasis, in the Supreme Court decision in AIR 1959 SC 71 is, as my learned brother has shown, upon the benefit taken by the surviving testator. Their Lordships would appear to have laid emphasis upon that form of a mutual Will, in which each party is in a relationship of both testator and legatee, as regards the other party. Such terms would, by themselves, constitute powerful evidence of a mutual agreement not to revoke, except by both together. Hence, I do not think that this decision implies that the element of irrevocability may be dispensed with, as a test. AIR 1960 All 126 has been cited by us, as regards the exposition of legal principles; upon the facts, it is distinguishable from the present case, in vital respects."
In view of the clear consensus that prevails on both sides to the lis to the effect that Ex.A3 is a Joint Will, there is no difficulty in holding that it is a Joint Will and that too, in view of the actualities as could be seen in Ex.A3 itself.
35. My discussion supra under Point Nos.1 to 3 would reveal that the first item of the suit properties as on the date of emergence of Ex.A3 absolutely belonged to G.K.Kalianna Gounder and he bequeathed under it, the said property in favour of his daughters. Similarly, D4, who was indubitably the owner of the second item of the suit properties as on the date of execution of Ex.A3 bequeathed the said item in favour of her daughters. As such, it is a Joint will and there is no reciprocal or mutual benefit to either of the spouses/testators and in such a case, it is not a mutual will. Whereupon, it is apparent and obvious, axiomatic and pelucid that even after the death of G.K.Kalianna Gounder, D4 had the right to revoke that portion of Ex.A3 Will relating to the second item of the suit properties relating to which she was the owner.
36. It has to be seen as to whether she validly revoked the said Will Ex.A3 and legally bequeathed the said two items of the suit properties to D5 and D6 as per Ex.B8.
37. At this juncture, it is worthwhile to highlight that the appellants blow hot and cold, approbate and reprobate. In one breadth, they would contend that it is a joint will and that the first item of the suit properties belonged to D5 and another part of the first item of the suit properties belonged to D8 and D9, the sons of deceased Pongianna Gounder but, in another breadth they would contend that D4 had revoked the entire Ex.A3, the Will. In such a case, it is not known as to how the appellants could be heard to contend that D4 had testamentary right to Will away the first item of the suit properties after revoking Ex.A3 relating to the said first item. As such, the answer is apparent that D4 had no testamentary power to Will away the first item of the suit properties. Furthermore, in view of my finding supra, a fortiori, the deceased G.K.Kalianna Gounder was the absolute owner of the first item of the suit properties and he had validly bequeathed the said item in favour of his daughters and D4 after the death of G.K.Kalianna Gounder had no testamentary right to Will away the first item of the suit properties.
38. Regarding the second item of the suit properties, even though D4 possessed the power of revocation of that part of the Ex.A3 Will relating to the second item of the suit properties, nonetheless, there is no convincing and cogent evidence to demonstrate that she validly executed Ex.B8. Incontrovertibly, Ex.B8, the Will is alleged to have been executed by D4 while she was bed-ridden and taking treatment in hospital in connection with the fracture of her bone; the Sub Registrar of documents was taken to the hospital for getting registered the Will Ex.B8. Here Ex.A3 emerged as early as on 02.03.1977 whereas Ex.B8 emerged only on 21.07.1988, more than a decade after the emergence of Ex.A3 and that too, while she was in a precarious condition in the hospital. Had really D4 thought that her daughters were not behaving with her to her likeness and that only her sons were looking after her, then she could have revoked the Will Ex.A3 relating to the second item of the suit properties, even much earlier.
39. The pertinent point to be noted here is that there is no whisper in Ex.B8 Will relating to the cause of revoking the earlier Will Ex.A3.
40. The learned counsel for the contesting respondents would cite Section 70 of the Indian Succession Act and develop his argument to the effect that quite contrary to the raison d'etre of such a legal provision, no specific reason having been found delineated under Ex.B8 for revoking the earlier Will Ex.A3. Ex.B8 is a cryptic Will, which would simply speak as though D4 bequeathed both the items of the suit properties in favour of D5 and D6 by revoking the earlier Will in Ex.A3 in its entirety. Even de hors Section 70 of the Indian Succession Act, the common sense warrants that while a Will is being revoked, there should be some adequate reason found set out therein. Here, in this case, there is no reason much less any adequate reason is found detailed for revoking the earlier Will, Ex.A3. No doubt, the learned counsel for the appellants would argue that D4 during her life time filed the written statement detailing the reasons, which in my opinion is amounting to putting the horse behind the cart.
41. The whole kit and caboodle of facts and figures placed before the Court and the cumulative effect on the evidence on record would convey and project the idea that D4 was suffering from ill-health ever since anterior to execution of Ex.B8 till her death and in such a case, the averments as found set out in her written statement should be taken with a pinch of salt.
42. It has to be seen as to whether D4 executed Ex.B8, the Will volitionally. No doubt, PW3, who scribed the Ex.A3 Will also scribed Ex.B8, the Will and D2 Krishnaveni one of the daughters of D4 attested Ex.B8 and she also deposed before the Court as D.W.3. One other attesting witnesses to Ex.B8 was G.S.Kalianna Gounder S/o. Semmanna Gounder, who was not examined before the Court. It is also an admitted fact that the beneficiaries under Ex.B6 were all very much present at the time of emergence of Ex.B8. The same D2 Krishnaveni happened to be the identifying witness along with one another witness Bhuvaneswari, the daughter of G.K.Kalianna Gounder, presumably D6. It is to be seen that D6, G.K.Kaliannan is also one of the sons of G.K.Kalianna Gounder. It is not conclusively known whether Bhuvaneswari is the daughter of said D6. But there is bare indication. But one fact is clear that the beneficiaries and the near and dear were very much present and they only made arrangements for the emergence of Ex.B8 Will.
43. It is a trite proposition of law that when the beneficiaries are taking active role in bringing about the execution of a Will, it is termed as a suspicious circumstance.
44. There are catena of decisions relating to Wills, which could be dealt with infra. No doubt, the registered Will would lend additional support to the propounder of the Will in proving the genuineness. In this connection my mind is reminiscent of the decision of the Hon'ble Apex Court rendered in 2006 (2) LW 658 (Pentakota Satyanarayana & others v. Pentakota Seetharatnam). However, merely because the Will is a registered one, it is not the be all and end all relating to the proving the genuineness of the Will and that too, when admittedly it emerged at the hospital, while the testator was reeling under pain and sufferings. Admittedly as on the date of execution of the Will, Ex.B8, D4 was a septuagenarian, so to say, 76 years old and taking treatment for the fracture sustained by her in the hospital. Under Ex.B8, itself it is found that day by day her health condition was deteriorating. These are all certainly suspicious circumstances, which cut at the root of the genuineness of the Will. Under Ex.B8, out of her sons, only D5 and D6 have been chosen to be beneficiaries and she had also no right to revoke the entire Will Ex.A3 apparently and obviously as discussed supra.
45. To the risk of repetition, without being tautologous, I would like to reiterate the legal proposition that if the object of the Will is not one actuated by truth and honest belief, certainly they would cut at the root of the genuineness of the Will.
46. It is apparent that the testator D4, being a lady, would in her written statement itself aver that she was not aware of the ownership of the first item of the suit properties and a sequela it follows that she could not have chosen to execute the Will relating to the first and second item of the suit properties voluntarily. Ex.A3 is certainly an obstacle for D5 and D6 to claim right over the first and second item of the suit properties, as in view of Ex.A3, the daughters of the beneficiaries were bequeathed with the rights over the first and second item of the suit properties and as such D5 and D6, the sons of the testators, being not satisfied with the properties already under their ownership and enjoyment did choose to deprive the female members of the family, the benefit under Ex.A3 and thereby brought about the Will Ex.B8. This conclusion is inevitable in view of the reasons set out supra.
47. Much reliance has been placed on the deposition of DW3 (D2) one of the attesting witnesses by the appellants on the ground that even though D3 happened to be the one of the beneficiaries under Ex.A3 the Will, she spoke buttressing the plea of the genuineness of Ex.B8.
48. The learned counsel appearing for the contesting respondents/plaintiff would correctly tarpedo the stand of the appellants by pointing out that DW3 in her deposition pelucidly and candidly admitted that D5 promised her that he would look after her welfare and that thereupon alone she did not develop any likeness to know as to what for Ex.B8 the Will was being executed by her mother. DW3 also would almost at the end of cross examination state thus:
@vf;!pgpl; gp/8 capy; vGjpa rkaj;jpy; vija[k; g[hpe;J bfhs;Sk; kd epiyapy; ,y;iy vd;W brhd;dhy; rhpay;y/ vd; jhahUf;Fk; vija[k; mg;nghJ mGj;jkhfr; brhd;dhy; g[hpe;J bfhs;thh;/ vd; jhahh; tpUg;gg;go vf;!pgpl; gp/8 capy; vGjg;gltpy;iy vd;Wk; vd; mz;zd;khh; ,UtUk; brhj;ij mgfhpf;f ntz;Lbkd;W jahhpj;jJ vd;Wk; brhd;dhy; rhpay;y/@ (emphasis supplied)
49. The above excerpt from D.W3's deposition would unambiguously indicate that D4 allegedly executed the Will while she was not capable of understanding things and events properly. From her deposition it could be understood that her mind was in an abnormal state as DW3 herself had copiously averred that if anything was stated to D4 stressing the same, then only she was capable of understanding it. DW3 in her deposition would also state that the scribe, scribed the Will as and when D4 dictated the versions to him. But DW3 would surprisingly depose that she did not know whether D4 stated anything about the earlier Will, even though DW3 claims that she was present through out even while her mother was dictating the Will. She would also plead that she did not know anything about the contents of the Will but she would only give a parrot like version in her deposition as though she had seen the mother signing the Will and the mother also having seen the attestors putting their signatures in the Will. She would also narrate that D4 and D5 played an active role in bringing about Ex.B8 the Will and that even after the execution of such Will, D4 was in the hospital for about a month.
50. As such, the cumulative effect of the evidence of DW3 would clearly indicate that the Will was not executed voluntarily after understanding the purport of it by D4.
51. The learned counsel for the appellants would contend that the suit filed by the plaintiff during the life time of D4, the mother for partition based on the Will Ex.A3, is not tenable as it is obvious that it would come into effect only on the death of D4.
52. Here, it is a peculiar case in which, D4 died during the pendency of the suit in the year 1991 and the trial commenced only in the year 1994. At that time, both the parties understanding the realities and the pleas available on either side adduced evidence. No steps have been taken by the appellants to get the suit dismissed on the preliminary point that the suit itself was not maintainable relating to the second item of the suit properties. The fact remains that as per Ex.A3, the parents of the plaintiff executed the joint Will and virtually it amounts to the father executing the Will in respect of the first item and the mother executing the Will in respect of the second item and in respect of the first item is concerned. There is no dispute as to the maintainability of the suit relating to the first item, because the father of the plaintiff, who happened to be one of the testators in Ex.A3, died long prior to the filing of the suit. The plaint averments would govern the maintainability of the suit, which are that the father of the plaintiff was the real owner of both the items of the suit properties and her mother D4 was only a name lender in respect of the second item of the suit properties and as such, consequent upon the death of plaintiff's father Ex.A3 Will come into effect.
53. In such view of the matter as on the date of the filing of the suit considering the plea of the plaintiff, in para No.4 of the plaint, the suit cannot be held to be one not maintainable. No doubt, during adjudication, what transpired was that the father of the plaintiff happened to be the owner of the first item and the mother of the plaintiff happened to be the owner of the second item of the suit properties and that the Will was a joint Will. Simply because, what transpired subsequently, it cannot be held that the suit as on the date of the suit itself was not barred. Further more, even before the commencement of the trial D4 died and before that no steps also had been taken to get the suit dismissed partly relating to the second item of the suit properties on the ground of non-maintainability of the suit.
54. At this juncture, my mind is redolent with the following decisions:
(i) 2005(1) SCC 40 [Daulat Ram and other vs. Sodha and others]
(ii) 2005(1) SCC 280 [Meenakshiammal (Dead) through LRs. and others vs. Chandrasekaran and another]
(iii) 2005(1) CTC 443 [Sridevi and others vs. Jayaraja Shetty and others]
(iv) 2005(1) L.W.455 [Janaki Devi vs. R.Vasanthi and 6 others]
(v)1989 (1) L.W.396 [Nagarajan and 3 others vs. Annammal]
(vi) AIR 1982 SC 133 [Smt.Indu Bala Bose and others vs. Manindra Chandra Bose and another]
(vii) AIR 1985 SC 500 [Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others]
(viii) AIR 1991 Bom. 148 [Asber Reuben Samson and others v. Eillah Solomon and others]
(ix) 2008(2) MLJ 119 [M.Anandan and others vs. A.Dakshinamoorthy]
(x) 2006(4) L.W.942 [Gurdev Kaur & others vs. Kaki & others]
(xi)2008(1) MLJ 1337 SC [Savithri and others vs. Karthyayani Amma and others]
(xii)2007(3) L.W.916 [1. J.Mathew (died) 2. J.Damien and 3 others vs. Leela Joseph]
55. Over and above that the learned counsel for the plaintiff also cited the decision of the Hon'ble Apex Court reported in AIR 1982 SC 133 (Smt.Indu Bala Bose and others v. Manindra Chandra Bose and another). An excerpt from it would run thus:
"7. This Court has held that the mode of proving a Will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testators mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the Will to show that the testators mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes a prominent part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.
8. Needless to say that any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.
Learned counsel relied on the decision of this Court in the case of Rani Purnima Devi v. Kumar Khagendra Narayan Dev reported in (1962) 3 SCR 195 : (AIR 1962 SC 567) (supra). In this case the Will in question gave the entire property by the testator to a distant relation of his to the exclusion of the testators widow, sister and his other relations, and even his daughter, who would be his natural heirs, but subject, of course, to the condition that the legatee would maintain the widow and the sister of the testator. The testators signatures were not his usual signatures, nor in the same ink as the rest of the Will; the testator used to sign blank papers for use in his cases in court and he used to send them to his lawyer through his servants; the testator did not appear before the Sub-Registrar for the purpose of registration of the Will but the Sub-Registrar sent only his clerk to the residence of the testator for the purpose of registration; there were 16 attesting witnesses who attested the Will, but of them, only four interested witnesses were examined to the exclusion of disinterested witnesses. The above are undoubtedly suspicious circumstances, circumstances creating doubt in the mind of the court. In spite of these circumstances, it was held by the trial court that the Will was duly executed and attested. On appeal, the High Court affirmed the order of the trial court. On further appeal, this Court held that the circumstances were suspicious and were not satisfactorily explained and hence held that the due execution and attestation of the Will were not proved.
56. It is therefore crystal clear from the dictum of the Hon'ble Apex Court found exposited in those precedents cited supra that if there are doubtful circumstances, the same should be dispelled by the propounder of the Will and in this case D5 and D6 should have taken steps to dispel such suspicious circumstances as indicated supra. Curiously enough the appellants got themselves satisfied by examining D2 as DW3 and the scribe. The one other attesting witness to Ex.B8 was not examined for no good reason. I am fully aware of the fact that by examining any one of the attesting witnesses, the Will could be proved, whereupon, the onus probandi would shift to the propounder of the Will to dispel the suspicious and dubious circumstances. The non-examination of one other attesting witness to Ex.B8, therefore gained significance in this case and it cannot be treated as a focurrante factor. Further more, D2 is the sister of D5, who took sides with him and also as against her sister, the plaintiff and her deposition smacks falsehood as highlighted above.
57. The learned counsel for the plaintiff also cited one other decision of the Hon'ble Apex Court reported in 1959 SCR supp 426 (H.Venkatachala Iyengar vs. B.N.Thimmajamma and others) stressing upon the aforesaid law point regarding the duty of the propounder of the Will to dispel the suspicious circumstances.
58. It is therefore clear that Ex.B8 is not a genuine Will and accordingly the trial Court au fait with evidence was justified in its finding in disbelieving it.
59. Accordingly Point No.4 is decided to the effect that Ex.A3 is the valid joint Will and even though D4 had the capacity to revoke her portion of the Will relating to the second item, she had not validly revoked it.
60. Point No.5 is decided to the effect that Ex.B8 is not a genuine Will.
61. Point No.6 The same ratiocination adhered to in deciding that Ex.B8 is not a valid and genuine Will, shall also be applicable to the mortgage deed Ex.A5 dated 08.08.1988, which emerged shortly before the emergence of Ex.B8, that it was not a genuine mortgage and the fact is that D7 is none but the son of D1.
Point No.7
62. This issue is relating to adverse possession.
Even though the plaintiff could succeed without placing reliance on the plea of adverse possession as an alternative one, nonetheless it was sought to be pressed into service in the reply statement filed by the plaintiff.
63. The learned counsel for the appellants/defendants 5 and 6 would correctly argue that there was no issue framed relating to adverse possession and as a sequela the lower court was not justified in giving a finding that G.K.Kalianna Gounder acquired prescriptive title over the first item of the suit properties. Whereas the learned counsel for the respondents/plaintiff by placing reliance on various precedents would advance his argument that simply because an issue has not been framed concerning adverse possession, the factum of both sides having understood the realities relating to the plea of adverse possession and adduced evidence, the entire finding of the Court cannot be discarded. The following are the decisions cited by him:-
1. AIR 1922 Madras 59 (Vennam Ramiah vs. Kusru Kotamma and others)
2. AIR 1926 Allahabad 697 (Sajjad Husain vs. Qurban Ali Beg)
3. AIR 1929 Patna 117 (Bageswari Charan Singh vs. Jagarnath Kuari and another)
4. AIR 1957 Patna 157 (Sribhagwan Singh and others v. Rambasi Kuer and others)
5. AIR 1980 Patna 113 (Govind Yadav and others vs. Deoki Devi and others)
6. 1990 MLJ 224 (L.A.K.Shanmughasundaram Chettiar and another vs. Municipal Council, Sankarankoil and another)
7. 2000 (II) CTC 219 ( Kannappan vs. Pargunan and 9 others)
64. No doubt, the perusal of the aforesaid decisions cumulatively would convey the idea that even though there is no specific plea, nonetheless if the parties understanding the plea based on adverse possession adduced evidence then, it would be too late in the day on the part of one of the parties to raise his accusitive finger as against the lower court relating to non-framing of a specific issue based on the plea of adverse possession. But on merits, the plea of adverse possession as pressed into service by the plaintiff is found to be untenable for the reasons set out infra.
65. In the year 1960, the registered partition deed took place wherein the first item of the suit properties was partly allotted to the share of D5 and partly to the share of Pongianna Gounder. G.K.Kalianna Gounder died during the year 1977, after executing the Will. Simply because there is a time gap of more than 12 years and that he had been in possession, the plea of adverse possession should not be applied.
66. My finding under the above issues is to the effect de hors Ex.A9, G.K.Kalianna Gounder enjoyed the suit property as the absolute owner not based on adverse possession but by the consent of D5 and Pongianna Gounder and after the death of Pongianna Gounder, his descendants, viz., D8 and D9.
67. At this juncture, my mind is reminiscent of the latest decision relating to adverse possession rendered by the Hon'ble Apex Court reported in (2007) 4 MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others). Certain excerpts from it 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. 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.
9. 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
10. 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.
22. 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.
23. 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.
34. 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."
68. A mere perusal of it would clearly demonstrate and exemplify that in the facts and circumstances, the plea of adverse possession is a misconceived one.
69. However, I make it clear that simply because the plea of adverse possession is negatived, I in no way hold that G.K.Kalianna Gounder was not the owner of the first item of the suit properties but my specific finding is that G.K.Kalianna Gounder became absolute owner of the first item of the suit properties having disposable right over it with the consent of D5 and Pongianna Gounder and D8 and D9 and accordingly, Point No.7 is decided.
Point No.8:
70. In view of the ratiocination adhered to in adjudicating the aforesaid points, I could see no reason to interfere with the judgment and decree of the trial Court and accordingly, the judgment and decree of the trial Court are confirmed and the appeal is dismissed. However, there shall be no order as to costs.
18..08..2008 vj2 Index :Yes Internet:Yes To The Subordinate Judge, Gobichettipalayam G.RAJASURIA,J., vj2 Pre-Delivery judgment in A.S.No.579 of 1994
18..08..2008