Madras High Court
The Chairman & Managing Trustee vs Tmt.C.V.Rajeswari Ammal (Deceased) on 13 June, 2013
Author: T.S.Sivagnanam
Bench: R.Banumathi, T.S.Sivagnanam
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :- 13.06.2013 Coram The HONOURABLE MRS.JUSTICE R.BANUMATHI and The HONOURABLE MR. JUSTICE T.S.SIVAGNANAM O.S.A.No.384 of 2012 Against C.S.No.22 of 2004 The Chairman & Managing Trustee Krishnaswamy Educational Trust Rep., by N.A.K.Balakrishnan No.8, IV Cross Street, Nungambakkam, Chennai 600 034. .. Appellant Vs. Tmt.C.V.Rajeswari Ammal (Deceased) 1.C.V.Sivaraman 2.C.V.Murugan 3.C.V.Jagadeesan 4.C.V.Madanagopal .. Respondents PRAYER : Original Side Appeal filed under Order XXXVI Rule 1 of Original Side Rules Read with Clause 15 of Letters Patent seeking to set aside the order of the Learned Judge dated 22.06.2012 made in C.S.No.22 of 2004. For Appellant : Mr.M.S.Krishnan for M/s.Sarvabhauman Associates For Respondents : Mr.T.V.Ramanujam Sr. Counsel for Mr.V.P.Sengottuvel ***** J U D G M E N T
T.S.SIVAGNANAM, J.
This Appeal filed by the plaintiff is against the judgment and decree in C.S.No.22 of 2004, dated 22.05.2012.
2. The appellant/plaintiff filed the suit for a declaration of title of the property mentioned in the plaint schedule, as the plaintiff has perfected title by adverse possession in terms of Section 34(F) of the Specific Relief Act. The plaintiff is the Chairman and Managing Director of an Educational Trust. For the sake of convenience the parties shall be referred to as Plaintiff and defendants.
3. The case of the plaintiff is that by a deed of absolute gift dated 06.01.1985, the first defendant donated the plaint schedule property to the plaintiff, pursuant to which the first defendant delivered possession and the plaintiff also took possession of the said property for the purpose of running a school established and administered by the plaintiff Trust. It is further stated that the plaintiff is in possession of the suit schedule property ever since the date of the gift deed dated 06.01.1985 till the filing of the suit for a period of more than 18 years and the property having been assessed to Property Tax by the Corporation of Chennai in the name of the plaintiff and the plaintiff has been regularly paying the Property Tax. It is further stated that the Assistant Commissioner of Urban Land Tax, Egmore, levied Urban Land Tax by assessment order dated 16.05.1995 and by further proceedings dated 08.11.1995, the said authority granted exemption of the land from the levy of Urban Land Tax, as the said land has been put to use for school purpose. It is further stated that pursuant to the gift, the first defendant along with her sons (defendants 2 to 5) entered into an agreement with the plaintiff dated 06.01.1985, confirming the gift deed and the fact that the plaintiff was put in possession of the suit schedule property by relinquishing the right of a portion of the said property earmarked as plot No.11-A out of the total extent of 29 grounds and 486 sq. ft., which was also in possession and enjoyment of the plaintiff along with the said property as per the registered lease deed dated 19.12.1969, which proves continuous possession and enjoyment of the property since 1964 onwards. Further case of the plaintiff is that in the said agreement dated 06.01.1985, the defendants permitted the plaintiff Trust to apply for exemption from stamp duty for the purpose of registration of the gift deed dated 06.01.1985 and the plaintiff Trust applied for exemption to the Government and the Government by G.O.Ms.No.161, dated 22.03.1990, granted exemption from stamp duty in respect of an extent of 2 grounds and 1467 sq.ft., out of the total extent of 9 grounds and 1400 sq.ft., covered by the gift deed. The said order of exemption was published in the Tamil Nadu Government Gazette dated 11.04.1990. The plaintiff further stated that the animus of long possession and enjoyment of the suit schedule property since 1964 for a period of more than 39 years has been established, thereby the plaintiff perfected his prescriptive title of adverse possession of the said property.
4. Further case of plaintiff is that the plaintiff approached Tahsildar, Egmore, Nungambakam Taluk to issue patta for the said property and Tahsildar by letter dated 13.06.2003 directed the plaintiff to produce registered deed of conveyance for issuing patta. Stating that the possession of the suit property has already been handed over to the plaintiff and is in possession and enjoyment over and above the period prescribed and that the plaintiff has perfected title by adverse possession, the plaintiff trust has filed the suit to get a declaration of title to the suit property on the basis of adverse title.
5. The 2nd and 3rd defendants in their written statement denied the execution of the gift deed by stating that no such document could have been executed without the knowledge of the defendants 2 to 5 as the first defendant was aged about 70 years and suffering from old age diseases. Further it was stated that the plaintiff Trust occupied about 29 grounds as a lessee from August 1964 and a request was made by the defendants to vacate leased property and after prolonged negotiation, the plaintiff agreed to release about 20 grounds and retained the remaining portion of 9 grounds and 1400 sq.ft., as if the lease continued in respect of the said area. The payment of property tax and the exemption obtained by the plaintiff under the Urban Land Tax Act were denied. Further, it was stated that the plaintiff cannot be claimed adverse possession, as they are lessee of the property and their possession cannot be adverse to the owner. Further, it was contended that the exemption granted by the Government from payment of stamp duty had expired and the plaintiff is not entitled to claim that the property was gifted to them or they have perfected title by adverse possession.
6. In the suit, two issues were framed for consideration whether the plaintiff is entitled to get the relief of declaration of title to the suit property by way of adverse possession and to what relief are the parties entitled?
7. The Managing Trustee of the plaintiff Trust Mr.N.A.K.Balakrishnan was examined as PW-1 and the Manager of the Trust Mr.P.A.S.Roy was examined as PW-2. The plaintiff marked Ex.P.1 to Ex.P.19, the defendants did not lead any oral or documentary evidence.
8. The learned Single Judge held that gift deed is not registered and that the plaintiff Trust continued to be in possession of the suit property as a lessee and that there was no animus to treat the possession in assertion of title. The learned single Judge by judgment and decree dated 22.06.2012, dismissed the suit holding that the plaintiff is not entitled to a declaration as prayed for.
9. Mr.M.S.Krishnan learned Senior counsel appearing for the appellant/plaintiff after reiterating the plaint averment and the lease transaction between the founder trustee of the plaintiff Trust and the defendants submitted that the first defendant acquired absolute title to the entire extent pursuant to a Will executed by her husband C.M.K.Viswanatha Mudaliar, which was probated before this Court in O.P.No.373 of 1983 dated 12.07.1984 and therefore, the first defendant had valid title to execute the gift deed Ex.P.2 in favour of the plaintiff. The learned counsel elaborately referred to the terms and conditions of the gift deed Ex.P.2 and the agreement Ex.P.3 and regarding the proceedings issued by the Urban Land Tax Authority granting exemption from payment of Urban Land Tax on the ground that the suit property was used as a school. The learned counsel referred to Ex.P.8, Ex.P.9, Exs.P14 to P18, which are property tax receipts and Ex.P.10 & Ex.P.19 series, the electricity meter cards, which stood in the name of the plaintiff trust.
10. It is submitted by the learned counsel that the gift deed is not a registered document and hence title does not flow through the unregistered gift deed, but from recital of the said document, it is evident that the Donor delivered possession and the possession and enjoyment of the suit property by the plaintiff is in the capacity of Donee and not as a lessee on and after 06.01.1985 [date of execution of Ex.P.2]. It is further submitted that the gift deed was executed and possession was handed over and the recital in document are very clear. Further, under Ex.P.3 agreement, there is a reference to the gift deed executed by the first defendant and in Ex.P.3, all the defendants have signed.
11. The learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in Collector of Bombay vs. Municipal Corporation of the City of Bombay & Ors., [AIR 1951 SC 469] and State of West Bengal vs. The Dalhousie Institute Society [AIR 1970 SC 1778] stating that possession based on invalid grant in perpetuity and free from rent, possession not referable to any legal right, it was prima facie adverse.
12. In support of their plea regarding adverse possession, reliance was placed on the decision of the Hon'ble Supreme Court in Bondar Singh & Ors. vs. Nihal Singh & Ors., [2003 (2) CTC 635]. Summing up the arguments, the learned Senior counsel submitted that it is true that adverse possession is an "unholy defence", however the plaintiff's case is not one such case, as the plaintiff surrendered 20 grounds of land and gift was executed for 9 grounds and 1400 sq.ft., and the plaintiff is not a trespasser. After execution of Ex.P.2 Gift Deed in 1985, the status of the plaintiff is that of an absolute owner of the property and the plaintiff is not trying to usurp the defendant's property and on and after 06.01.1985, the lease did not continue and the status of the plaintiff was as a Donee.
13. Mr.T.V.Ramanujam Senior Counsel appearing for the defendants submitted that it is only on 25.08.2003, when the suit was filed, the plaintiff asserted their title by adverse possession and in terms of Article 65 of the Limitation Act, the defendants are entitled to file a suit for recovery of possession till 2015, as the period of limitation is 12 years. It is further submitted that between 1985 till 2003, there was no pre-suit notice issued by the plaintiff. The learned Senior counsel submitted that it is true that there was an arrangement under Ex.P.2 & Ex.P.3, however those documents are not admissible in evidence and cannot be relied upon and hit by Section 17 of the Registration Act. If Ex.P2 & Ex.P3 cannot be relied on, there is no document to prove delivery of possession to the plaintiff in the capacity of Donee. Dehorse Ex.P.2 & Ex.P.3, there should have been evidence to show that possession was delivered to the plaintiff pursuant to Ex.P.2 gift deed. It is further submitted that the first defendant was not a lessor and the plaintiff should have surrendered to the lessees, who should in turn surrender possession to the first defendant, as she was the rightful owner of the property in terms of the Will executed by her husband. Therefore, it is submitted that the possession of the plaintiff is as a lessee and the possession is not illegal and the only remedy for the plaintiff was to file a suit for specific performance. Referring to the recitals in Ex.P.3 agreement, it is submitted that the Ex.P.2 gift deed was only a draft gift deed for a purpose of getting exemption and the plaintiff pursued their application for exemption from 1985 to 1990 and only in Ex.P.4, exemption was granted in respect of portion of the property and even thereafter, no steps were taken to execute the gift deed and the suit was filed only in 2003. Therefore, it is submitted that there is no animus upto 1990 and even in the order of exemption Ex.P.4, the Government states that the exemption is with regard to a deed of gift to be executed.
14. Further, it is contended that the proceedings passed by the Urban Land Tax Authority has no effect on title and only in 2003, the plaintiff claimed title behind the back of the defendants by approaching the Tahsildar to issue patta and even in 2003, the plaintiff did not call upon the defendants to register the gift deed. It is further submitted that the first defendant died in 1989 and suit was filed against the dead person. The learned Senior counsel made elaborate reference to the pleadings contained in the plaint and submitted that the averments are mutually contradictory, since it has been stated that there is animus since 1964 and in another portion of the plaint, it is stated that the plaintiff is in adverse possession from 1985. It is submitted that once the plaintiff admits that the entry into the property was with consent of the defendants, there is no question of animus as on 06.01.1985, the date of execution of the gift deed Ex.P.2. Further in the plaint, there is no pleadings that possession under the lease was surrendered and the proposed gift and the permission granted to the plaintiff to get exemption from stamp duty was with the consent of the defendants and hence, there is no animus. There is no question of animus arising from 1964, since the possession of the plaintiff was in the capacity of lessee. Even in 1985, there can be no animus, since defendants granted permission to apply for exemption from stamp duty. An unregistered gift deed will not make the plaintiff as an absolute title-holder and the plaintiff's pursued the application for exemption upto 1990 and after exemption was granted for a portion of the property, no demand was made by the plaintiff to the defendants to execute to register the gift deed.
15. Further, it was submitted that the gift deed apart from being an unregistered document, it is not duly stamped and only one witness has attested the document and it cannot be called a gift deed much less and absolute gift deed. By referring to the plaint prayer, it is submitted that there is no sub-section (f) in Section 34 of the Specific Relief Act to exercise discretion, there should have been demand and denial. Therefore, it is contended that the gift deed is a incomplete transaction and there is no question of animus and even if, the plaintiff claims to have been in possession of the property for 100 years, it cannot became adverse to the interest of the defendants. The learned counsel by referring to the cross examination of PW-1 submitted that PW-1 had stated that the plaintiff requested to execute gift deed and there is no such pleading in the plaint. As regards the Property Tax remittance, it was submitted that it is in respect of two Door Nos. namely Door No.13 in 3rd Cross Street and Door No.8 in 4th Cross Street and the Property Tax remittance in the name of the plaintiff was without the knowledge of the defendants and the same cannot be an animus for raising the plea of adverse possession. Further, it is submitted that the plaintiff was running a school in the premisses and there is no question of taking possession of running school. It is further submitted that in Ex.P.3, the plaintiff admitted that after surrendering plot Nos.2, 3 & 4, the plaintiff was in occupation of the remaining land and building in plot Nos.11A, 11B & 11C as a lessee. In the absence of any proof of surrender of lease the status of the plaintiff is the only as a lessee and not that of a Donee. Further, the gift deed is not in consideration of the surrender of 20 grounds and the recital in Ex.P.2 cannot be looked into, as it is an unregistered document and the learned Single Judge rightly refused to exercise discretion and dismissed the suit. In support of his contentions, the learned Senior counsel placed reliance on the decisions of the Hon'ble Supreme Court in K.B.Saha & Sons Private Limited vs. Development Consultant Limited [2008 (8) SCC 564]; S.Kaladevi vs. V.R.Somasundaram & Ors [2010 (5) SCC 401]; Bondar Singh & Ors., vs. Nihal Singh & Ors., [2003 (2) CTC 635]; State of Haryana vs. Mukesh Kumar & Ors [2011 (10) SCC 404]; Roop Singh (dead) through Lrs vs. Ram Singh (dead) through LRs [2000 (3) SCC 708]; Khepa Gorain vs. Kus Gorain [1998 (9) SCC 144]; Chatti Konati Rao & Ors., vs. Palle Venkata Subba Rao [2010 (14) SCC 316]; Kamakshi Builders vs. Ambedkar Educational Society & Ors., [2007 (12) SCC 27]; P.T.Munichikkanna Reddy & Ors., vs. Revamma & Ors., [2007 (6) SCC 59]; Konda Lakshmana Bapuji vs. Govt., of A.P., & Ors., [2002 (3) SCC 258]; Thakur Kishan Singh (dead) vs. Arvind Kumar [AIR 1995 SC 73]; Vishwanath Bapurao Sabale vs. Shalinibal Nagappa Sabale & Ors., [2009 (12) SCC 101]; Annakili vs. Vedanayagam & Ors., [2007 (14) SCC 308]; and Union of India vs. Ibrahim Uddin & Anr., [2012 (8) SCC 148] and the decisions of the Division Bench of this Court in A.C.Lakshmipathy vs. A.M.Chakrapani Reddiar & 5 Ors., [2001 (1) L.W. 257] and Kuppuraj vs. K.Arjunan & Ors., [1981 (1) MLJ 222]. Summing up his arguments, the learned Senior counsel submitted that the decisions relied on by the plaintiff pertain to Government grants and are clearly distinguishable and the gift deed is not admissible in evidence and clearly hit by proviso to Section 49 of the Registration Act, as there is no collateral transaction in the instant case. It is therefore submitted that it was an attempted gift and the same is an incomplete transaction and therefore the remedy is only to file a suit for specific performance. In the absence of any pleadings or "proof of animus", the learned Single Judge rightly refused to exercise discretion and dismissed the suit.
16. In reply Mr.M.S.Krishnan, learned Senior counsel submitted that a new plea has been raised in the course of arguments stating that Ex.P.2 is a draft gift deed and there is no such pleading in the written statement. Further, there is no suggestion put to PW-1 and PW-2 during the cross examination and the defendants cannot be permitted to raise such contention for the first time in this appeal. It is further contended that the intention of the parties is clear from Ex.P.3 and the distinction has been clearly made and the possession of the plaintiff is as Donee and the defendants cannot disown Ex.P.2 & Ex.P.3 and the animus is from 06.01.1985 and the possession of the plaintiff is open and hostile and the defendants did not exercise their alleged right, therefore, the suit may be decreed.
17. We have heard Mr.M.S.Krishnan, learned Senior counsel appearing for the appellant/plaintiff and Mr.T.V.Ramanujam, learned Senior counsel appearing for the defendants and given our careful consideration to the submissions made.
18. Based on the facts narrated above and the contention raised on both sides, the following questions would arise for consideration in this appeal:-
(i) Whether the plaintiff were in possession of the suit property as Donee?
(ii) Whether the Defendants are right in contending that Ex.P2-Gift Deed is only a draft document conferring no right upon the plaintiff?
(iii) Whether the Defendants are right in contending that possession of plaintiff was only lessees and their possession was never adverse?
(iv) Whether the plaintiff have perfected their title by adverse possession.
19. Before we dwell into the above questions and take a decision on the same, it would be first necessary to take note of certain undisputed facts. The suit property consists of land and building bearing old Door No.16A and 13,(present door No.8), 4th Cross Street, Sterling Road, Nungambakkam, Chennai 34 and the land measuring and extent of 9 grounds and 1400 sq.ft. The suit property originally formed part of a larger extent of 29 grounds and 486 sq.ft. The larger extent of property was owned by Thiru.C.M.K.Viswanatha Mudaliar, the husband of the first defendant and the father of the defendants 2 to 5. The father of the defendants 2 to 5 executed a deed of lease dated 17.12.1969 (Ex.P.1) registered as a document No.1876 of 1969 on the file of the Sub-Registrar, Thiyagaraya Nagar in favour of Mr.M.A.Krishnaswamy, the founder trustee of the plaintiff Trust. The present Managing Trustee Mr.N.A.K.Balakrishnan is the son of the founder trustee. Infact, Ex.P.1 lease deed is an renewal of lease granted in favour of Mr.M.A.Krishnaswamy, by registered lease deed dated 20.08.1964. By virtue of the original lease executed in 1964, the lease was for a period of five years from 01.09.1964 till 01.09.1969. On a request made by the lessee, the lessors extended the lease for a further period of three years from 01.09.1969 with option of renewal for a further period of two years on the same terms by executing Ex.P.1 deed of lease. From the recitals of Ex.P.1, it is seen that after the execution of the original lease deed dated 20.08.1964, the property was partitioned among Mr.C.M.K.Viswanatha Mudaliar and his sons, under family partition deed dated 13.04.1966.
20. On account of the right created under the partition, the defendants 2, 4 & 5 had also joined in the execution of the Ex.P.1 lease deed. The lease was for the purpose of running an educational institution, hostel, office and other requirements connected with the institution. The lessee was required to pay the rent for each month on or before the 10th day of each succeeding month to Mr.C.M.K.Viswanatha Mudaliar and obtain receipts. The electricity charges, water charges were to be borne by the lessee and the lessee was not permitted to carry out any structural alterations or improvements in the building and out-house except for providing temporary partitions for their convenience and except when it is agreed to otherwise by the lessors in writing. The lessee was authorised to put up at his own cost any building structures on the open land of the demised premises subject to obtaining prior sanction from the Municipal and other authorities and consent from Thiru.C.M.K.Viswanatha Mudaliar. At the expiration of the period of lease, the lessee was to deliver the vacant possession of the leasehold property in as good condition as of date subject to reasonable wear and tear. The lessors were entitled to terminate the lease by notice in writing in the event of default in payment of rent for a period of four months. The 30' road on the west of the main building between plot A and plot B was to be kept in common and used as road giving access to lessors and others to reach the northern portion of the property and the same road might be converted as a public road in future when the lessors might put up building on the northern end of their property or dispose them in any manner they choose. The terms "lessors and lessee" were to include their respective heirs, executors, successors in interest etc.
21. Thus the founder trustee, who was the lessee continued to be in possession of the total extent of 29 grounds and 486 sq.ft., together with the building thereon. Founder Trustee C.M.K.Viswanatha Mudaliar, died on 29.08.1979, he had executed a Will dated 13.04.1966 bequeathing the property to his wife viz the first defendant, which fell to his share in the partition between himself and his sons. The said property being the property which was subject matter of lease granted in favour of the founder trustee of the plaintiff trust. The first defendant obtained probate of the said Will before this Court in O.P.No.373 of 1983, dated 12.07.1984. Thus, she became the absolute owner of the said property, namely plot Nos.11A, 11B & 11C together with the building thereon. After about nearly 6 months, two documents came to be executed between the plaintiff and the defendants. The interpretation and effect of these two documents are subject matter of controversy in this appeal. Ex.P.2 is a deed of gift dated 06.01.1985, executed by the first defendant in favour of the plaintiff. The said document is an unregistered document executed on a non judicial stamp paper dated 02.01.1983. Ex.P.3 is an agreement, which is also executed on the same date namely 06.01.1985, executed by all the defendants in favour of the plaintiff. By virtue of Ex.P.2, the first defendant transferred and conveyed by way of gift an extent of 9 grounds and 1400 sq. ft., together with the building thereon, (the suit schedule property) in favour of the plaintiff. Under the Ex.P.3 agreement, there was arrangement between the parties as regards the surrender of the remaining larger extent of land to the defendants.
22. The effect of the arrangement and whether the deed of gift and the agreement both dated 06.01.1985, form a composite transaction/arrangement is required to be decided in this case. In furtherance to the deed of gift dated 06.01.1985, the plaintiff applied to the Government of Tamil Nadu requesting for exemption/remission of stamp duty. The said request appears to have been pending with the Government for nearly five years and the Government by G.O.Ms.No.161, dated 22.03.1990, published in the Government gazette dated 11.04.1990, Ex.P.4, granted remission of stamp duty in respect of portion of the property. The notification reads that it relates to remission of stamp duty chargeable in respect of gift deed "to be executed" by the first defendant in favour of the plaintiff trust. The 'wording' in the notification is sought to be emphasized by the defendants to negative the claim of the plaintiff.
23. Under Ex.P.5, the Urban Land Tax Authorities made a demand for Urban Land Tax from the plaintiff Trust. On receipt of the order of assessment, the plaintiff found that the extent of property has been wrongly mentioned as 19 grounds and 0789 sq.ft., instead of 9 grounds and 1400 sq.ft. The plaintiff appears to have applied for exemption from the demand and levy of Urban Land Tax by application dated 26.07.1995. In the said application, it is stated that the plaintiff pointed out that the extent of property has been wrongly mentioned. The Urban Land Tax Authorities took up the application and based upon the report submitted by the Special Deputy Tahsildar I dated 19.10.1995, passed an order on 08.11.995,(Ex.P.6).
24. From the said order, it is seen that the Urban Land Tax Authority took note of the fact that the gift deed Ex.P.2 has not yet been registered and the Special Deputy Tahsildar on inspection of the property found that 9 grounds and 1400 sq.ft., is used by the plaintiff for educational purpose and there is a recognised school functioning in the property. Accordingly, the said extent was exempted from the purview of Urban Land Tax under Section 29(h) of the Act. The order not only grants exemption in respect of the land in possession of the plaintiff, but also the rest of the land in R.S.No.547/4 measuring 9 grounds and 1789 sqft., on the ground that the land owned by each owner is less than 2 grounds.
25. Further, the property was assessed in the name of the plaintiff trust and property tax collection receipts for the period from 1990-91 have been filed, which are Exs. P8, P9, P14 to P18. The electricity meter cards filed as Ex. P19 series show that the electricity connection has been granted in the name of the plaintiff. It appears that the plaintiff approached the Tahsildar, Egmore, Nungambakkam Taluk for grant of patta and submitted an application on 21.04.2003. The Tahsildar by proceedings dated 13.06.2003, stated that the plaintiff has informed the Tahsildar that they are in continuous possession and enjoyment of the suit property and running a school based on a gift deed dated 06.01.1985 (Ex.P.2) executed by the first defendant, however the gift deed has not been registered and requested the plaintiff to get the gift deed registered and apply for patta.
26. Admittedly, no document has been placed to show that the plaintiff approached the defendants for registration of the gift deed. Likewise, it has to be pointed out that there appears to have been no demand made by the defendants either calling upon the plaintiff to pay the rent or vacate the premises or in any manner exercise their right of ownership. Therefore, it has to be seen whether there has been abandonment of defendants' alleged right, which they now seek to claim in the written statement stating that the plaintiff still continues to be a lessee under them in respect of the suit property. With these facts, now we should consider the four questions which have been framed for consideration. Since the facts are intertwined and the effect of Ex.P.2 & Ex.P.3 has to be considered, it would be necessary to consider the questions Nos.1 to 3 together. The moot question would be as to what is the status of the plaintiff after the execution of Ex.P.2 gift deed.
27. The first objection raised by the learned Senior counsel appearing for the defendants is that Ex.P.2 being an unregistered instrument cannot be looked into for any purpose and no title flows to the plaintiff by virtue of such unregistered document.
28. The learned Senior counsel appearing for the plaintiff would fairly state that the plaintiff does not claim title to the property based on the unregistered gift deed, Ex.P.2. His submission would be that Ex.P.2 could be looked into for collateral purpose, to understand the arrangement and conduct of parties, to ascertain the nature of possession and status of the plaintiff after 06.01.1985. It is true that in terms of Section 49 of the Registration Act, no document required under Section 17 to be registered shall be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered. The proviso to Section 49 is an exception to Section 49 and it provides that the bar to the reception in evidence of an unregistered document of transfer will not apply in certain cases. Therefore, for collateral purposes i.e., purposes other than establishing title, an unregistered instrument can be looked into by virtue of the proviso.
29. At this stage, it would be necessary to also take note of Ex.P.3 agreement dated 06.01.1985. It has to be pointed out that both Ex.P.2 & Ex.P.3 were executed on the same date i.e., 06.01.1985. Both the documents have been made on non judicial stamp paper purchased on the same date i.e., 02.01.1985 bearing consecutive numbers and both purchased in the name of the plaintiff Trust.
30. Further, both the documents have been attested by the same Advocate and Notary Public M.Gomathi B.A.B.L. Incidentally, there is a sketch appended both the document Ex.P2 & Ex.P.3, in the sketch appended to Ex.P.3, the plaintiff, the Managing Trustee of the plaintiff Trust as well as the defendants have signed in original. The sketch appended to Ex.P.2, gift deed is the same sketch, but it does not contain the signature of the plaintiff or that of the defendants. Now, it would be necessary to go into the recitals in both the documents.
31. As noticed above, Ex.P.2 gift deed was executed by the first defendant in favour of the plaintiff. After stating as to how the first defendant became the sole and absolute owner of the property based on a Will executed by her husband Thiru.C.M.K.Viswanatha Mudaliar. It has been stated that the founder trustee surrendered plot Nos.2,3 & 4 to the defendants 2, 4 & 5 in May 1983 to whom the said property was allotted in the partition, which took place in 1966.
32. Curiously enough, the said document/agreement/ arrangement in May 1983 has not been placed before the Court. Interestingly Ex.P.13 sheds some light to cull out the intention of the parties and their conduct. Ex.P.13 is a document executed on a non judicial stamp paper, value of Rs.3.50 ps. The signatories to the document are the founder trustee of the plaintiff, who described as the party of the first part and the defendants, who are described as the party of the second part. The document has been attested by two witnesses and the second witness is PW-2, who is the Manager of the plaintiff trust. The recital in the document is to the effect that as per the terms of the agreement dated 04.05.1983, the party of the first part has vacated and delivered the vacant possession of plot Nos.2, 3 & 4 mentioned in Schedule C on 06.06.1983 to the parties of the second part and they admit and acknowledged the possession taken by them.
33. As mentioned earlier, the agreement dated 04.05.1983 was not placed before the Court. It has to be pointed out that the defendants did not lead any oral or documentary evidence, though they have raised very vociferous plea in this appeal. Therefore, there appears to have been earlier arrangement/agreement on 04.05.1983 between the parties, the same having been acted upon, vacant possession of plot Nos.2, 3 & 4 mentioned in schedule C to the said agreement was handed over by the founder trustee of the plaintiff to the defendants, this transaction has been stated in the gift deed Ex.P.2. After narrating the earlier transaction, the first defendant stated that her children are well settled in life and she is desirous of donating a portion of the property to an educational and charitable institution and decided to gift 9 grounds and 1400 sq.ft., to the plaintiff Trust. At this stage, it would be worthwhile to take note of recitals in the gift deed:-
WHEREAS the Donors Children are well settled in life: Whereas the Donor is desirous of Donating a portion of her property to some educational and Charitable Institution for its development; Whereas Krishnaswamy Educational Trust, the lessee under the Donor is having educational institutions in the said property and coaching number of students in various fields; Whereas the donor has therefore decided to gift 9 grounds and 1400 squarefeet with a building thereon bearing Door No.16-A, Sterling Road, Nungambakkam, Madras - 34, more particularly described in the Schedule hereunder and marked as Plot Nos.11B and 11 C and Coloured RED in the plan annexed hereto to Krishnaswamy Educational Trust, the Donee herein absolutely for educational and Charitable purpose viz., to carry on educational institution for which purpose the said Trust is created; and Whereas the Donee has agreed for the same;
NOW THIS DEED OF GIFT WITNESSETH AS FOLLOWS:-
The Donor hereby transfers and conveys by way of gift all that piece and parcel of land measuring 9 grounds and 1400 square feet with a building thereon known as "Wood-Well" bearing Door No.16-A, Sterling Road, Nungambakkam, Madras - 34, more particularly described in the Schedule hereunder and marked as Plot Nos.11B and 11 C and Coloured RED in the plan annexed hereto with all rights of easements, privileges and appurtenances thereto TO AND IN FAVOUR OF: KRISHNASWAMY EDUCATIONAL TRUST, absolutely to make use the same for educational and Charitable purpose viz., to carry on Educational Institutions for which purpose the said Trust has been created and the Donee hereby acknowledges the receipt of the said property.
The Donor hereby assures the Donee that the said property is free from all encumbrances;
The Donee hereby agrees to make use of the said property for Donee's educational institutions and for charitable purpose for which purpose the trust is created.
The Donee shall pay the Gift Tax, if any, payable on the gift and it will be a charge on the Schedule mentioned property till the said gift tax is paid or obtained exemption from the authorities concerned by the Donee which the Donee hereby accepted and undertakes.
The Donor has delivered possession of the property hereby gifted and morefully described in the Schedule hereunder to the Donee and the Donee shall own the same absolutely as full and absolute owner thereof. Neither the Donor nor her heirs shall have any interest hereafter in the property hereby gifted to the Donee who has accepted the same by taking possession.
34. Before we go into the effect of the above recitals, it is necessary to take note of the recitals in Ex.P.3. The document states about as to how the first defendant became the absolute owner of the property, how she has decided to donate the property to the plaintiff and the defendants 2 to 5 were made parties to the agreement by way of abundant caution on the request made by the plaintiff. The agreement also states that the plaintiff has assured the defendants that they will apply to the Government and get exemption of stamp duty for registration and also gift tax, if any payable and requested the parties of the first part to deliver possession of the suit schedule property to them to give effect to the decision of the first defendant to donate the property to the plaintiff and that all the defendants agreed for the same and then reduced the same into writing in the agreement Ex.P.3. For better appreciation, the terms and conditions of agreement are quoted below:-
Whereas the party of the second part has assured the parties of the first part that they would apply to the Government and get exemption of the Stamp duty for registration and also gift tax if any, payable and requested the parties of the first part to deliver possession of the Schedule mentioned property to them to give effect to the decision of Tmt.C.V.Rajeswari Ammal to donate the same to the party of the Second part; And Whereas the parties of the first part have agreed for the same and decided to reduce the same into writing;
NOW THIS AGREEMENT WITTNESS AS FOLLOWS:-
The parties of the first part hereby transfer and convey by way of gift all that piece and parcel of land measuring 9 grounds and 1400 square feet with a building thereon known as Wood-Well bearing Door No.16-A, Sterling Road, Nungambakkam, Madras -34, more particularly described in the Schedule hereunder and marked as plot Nos. 11B and 11C and coloured RED in the plan annexed hereto with all rights of easements, privileges and appurtenant thereto TO AND IN FAVOUR OF : KRISHNASWAMY EDUCATIONAL TRUST the Party of the Second Part herein absolutely to make use of the same for educational purpose viz., to carry on educational institutions for which purpose the said trust has been created and the Donee the party of the Second part herby acknowledgeS the receipt of the said property.
The parties of the first part hereby assure the party of the Second part that the said property is free from all encumbrances;
The party of the Second part hereby agrees to make use of the said property for their educational institutions for which purpose the said trust is created.
1. The Party of the Second part shall pay the gift tax, if any, payable on the gift and it shall be a charge on the Schedule mentioned property till the said gift tax is paid or obtained exempted from the authorities concerned by the party of the second part which the party of the Second part hereby accepted and undertaken. Similarly the party of the Second part shall bear the stamps duty and registration expenses, if the exemption is not granted by the Government. The parties of the first part shall not be liable in any manner whatsoever for payment of gift tax, stamp duty and registration expenses of the gift deed. The party of the Second Part shall be liable to pay the Corporation property tax betterment levies and urban land tax to the Government in respect of the said property from this date and the parties of the first part shall not be liable for the same in any manner whatsoever. If the party of the Second part fails to pay the same it will be a charge on the said property and the party of the second part alone shall be liable to all the taxes in respect of the said property.
The parties of the first part has delivered possession of the property hereby gifted and morefully described in the Schedule hereunder to the party of the Second part and the party of the Second part and the party of the second part shall own the same absolutely as full and absolute owner thereof. Neither the parties of the first part nor their heirs shall have any interest hereafter in the property hereby gifted to the Donee the Party of the Second part who has accepted the same by taking possession.
The Party of the Second part has delivered possession of the Plot No.11A with a building thereon shown in the plan to the parties of the first part at the time of signing of this agreement.
The first of the parties of the first part shall execute and register the gift deed as and when required by the party of the second part at the cost and expenses of the party of the second part. The first of the parties of the first part has signed and delivered a draft deed of gift to the party of the second part to apply for exemption of stamp duty to the Government and also to obtain exemption for payment of gift tax if any payable.
35. From the recitals extracted above in Ex.P.3, the defendants transferred and conveyed by way of gift suit property to the plaintiff for using the same for educational purpose. The plaintiff had to pay gift tax if any payable, pay stamp duty and registration expenses if exemption is not granted, the plaintiff was liable to pay Corporation, Property tax, Betterment Levies and Urban Land Tax on the suit property from the date of the agreement i.e., 06.01.1985 and the defendants were held to be not liable for the same in any manner whatsoever and the plaintiff shall also liable to pay all taxes in respect of the suit property.
36. Further, the parties have consciously recorded that the defendants have delivered possession of the suit property, which has been gifted to the plaintiff, who shall own the same absolutely as full and absolute owner thereof. Simultaneously, it was recorded that the plaintiff has delivered possession of plot No.11A with building thereon to the defendants at the time of signing the agreement. Further, the defendants shall execute and register the gift deed as and when required by the plaintiff. In the said clause, it has been stated that the first defendant has signed and delivered a draft gift deed to apply for exemption of stamp duty to the Government and also obtained exemption from payment of gift tax.
37. Now coming back to the recitals in Ex.P.2 gift deed, which have been quoted in the previous paragraph, it is seen that the gift was absolute and the plaintiff Donee acknowledged the receipt of the property. There is also a specific recital that the Donor has delivered possession of the suit property, which was gifted to the plaintiff and the plaintiff shall own the same absolutely as full and absolute owner thereof and the Donor nor her heirs shall have any interest in the property gifted to the plaintiff, who has accepted the same by taking possession.
38. Thus from all the above facts, it is evidently clear that there was an agreement/arrangement between the parties much prior to the execution of Ex.P.2 & Ex.P.3. This was in the nature of the agreement dated 04.05.1983, which document was not placed before Court, however the same is evident from Ex.P.13 and the contents thereof read with the recitals in Ex.P.3, which reiterates that possession of plot Nos.2, 3 & 4 were handed over to the defendants on 06.06.1983 and the defendants admitted and acknowledged the taking of possession of those three plots. Therefore, we can safely come to a conclusion that Ex.P2 & Ex.P.3 form part of a composite transaction and the documents have to be read together to cull out the intention and the conduct of parties. Having come to such a conclusion, though Ex.P.2 is an unregistered gift, the same can be looked into for any purpose other than for establishing title.
39. In the light of the above discussion and the recitals contained in Exs.P2, P3 & P13 and having held that the entire transaction is a composite transaction, we are inclined to accept the submission of the learned Senior counsel appearing for the plaintiff and to hold that the plaintiff's possession of the suit property after 06.01.1985 is that of the Donee and not as a lessee. Accordingly, the question Nos.(i) & (iii) are answered.
40. The learned Senior counsel appearing for the defendants contended that Ex.P.2 gift deed is only a draft document and the same cannot confer any right upon the plaintiff.
41. As rightly pointed out by the learned Senior counsel appearing for the plaintiff no such contention was raised in the written statement, therefore, the defendants would be precluded from raising such a contention more so in the absence of any pleadings or evidence. For the sake of argument, if the plea raised by the defendants is to be considered, the same deserves to be rejected for the simple reason that Ex.P2 & Ex.P3 form part of a composite transaction. The link between these two documents are inextricable. The intention of the parties was very clear and though Ex.P.2 is an unregistered document, the same could be looked into for a collateral purpose to assess conduct of the parties. The Division Bench of this Court in the case of A.C.Lakshmipathy vs. A.M.Chakrapani Reddiar & 5 Ors., [2001 (1) L.W. 257] held that the document which was a family arrangement in the said case being unstamped and unregistered document cannot be looked into for any purpose, similarly oral evidence cannot be let in about the contents of the said document. After analyzing the case law on the subject as regards for what purposes such document could be looked into, it was held that the same can be looked into for a collateral purpose and whether the purpose is a collateral purpose is a question of fact and depends upon the facts and circumstances of each case. Therefore, a straightjacket formula cannot be laid down for the purpose of stating what is collateral purpose. In such circumstances, the case laws relied on by the learned Senior counsel for the defendants cannot be made applicable in the abstract without reference to the facts of the case on hand, which appears to be peculiar.
42. Though a feeble plea was raised in the written statement denying the probability of execution of Ex.P.2 gift deed by the first defendant stating that she was old and under the care of the defendants and could not have executed such a document, the defendants did not lead any evidence in this regard. Furthermore, the said plea raised by the defendants deserves to be rejected on the sole ground that the defendants 2 to 5 were parties to the agreement. Ex.P.3 in which there is a candid admission with regard to the execution of Ex.P.2 gift deed. Therefore, the plea raised by the defendants deserves to be outrightly rejected.
43. Equally the contention raised by the defendants that Ex.P.2 is only a draft document does not merit acceptance. Endeavour has been made in this regard by the learned Senior counsel for the defendants by relying upon the recitals in Ex.P.3 agreement. The penultimate clause in the agreement alone cannot be looked into in isolation. The correct method of reading a document is that the document has to be read as a whole to ascertain the true import. It cannot be compartmentalized, dissected, segregated and then read. It is not permissible to take a passage and read it out of context in isolation. The intention of the parties is to be gathered from the tenor and terms contained in the document as a whole.
44. In Ex.P.3 agreement, there is a clear recital regarding transfer by way of gift. Further, Ex.P.3 states that the plaintiff assured the defendants that they would apply to the Government and get exemption of stamp duty for registration and also gift tax. Therefore, the agreement to obtain exemption itself appears to have been at the request of the defendants. The order of remission, Ex.P.4, states that the remission in respect of the gift deed to be executed. This is a requirement, since if the document was to be presented for registration without exemption, parties would be required remit stamp duty. Hence by relying upon a single paragraph in Ex.P.3, the defendants cannot set at naught the entire transaction, which was composite in nature. Therefore, the Ex.P.3 cannot be stated to be a draft gift deed as contended by the learned Senior counsel appearing for the defendants and accordingly question No.(ii) is answered.
45. Learned Senior Counsel appearing for defendants contended that Ex.P.2 is only a draft document and that the suit should have been filed for specific performance and the suit for declaration is not maintainable. It was further submitted that after getting exemption of stamp duty payable, the plaintiff never called upon the defendants to get the regular gift deed and no such demand was made and in any event, suit for specific performance only should have been filed. The above contention proceeds on the footing that Ex.P.2 is only a draft agreement. As discussed earlier, Exs.P.2 and P.3 are being integral part of each other and that Ex.P.2- gift deed is not a draft but contains recitals conveying the suit property by way of gift to the plaintiff and therefore, there was no need to file the suit for specific performance.
46. The next question to be considered is as regards the plea of adverse possession. It is no doubt true that there is no provision such as Section 34 (f) in Specific Relief Act as stated in the plaint prayer. Section 34 deals with 'Discretion of Court as to declaration of status or right'. Mere quoting of a wrong provision cannot defend the rights of parties. In terms of Section 34 any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled. It was submitted that there is no cause of action for the plaintiff to approach the Court, since there was no demand or denial.
47. As noticed above, the plaintiff may institute a suit against any person denying or interested to deny his title or right. In the cross examination of PW-1, the Managing Trustee has stated that they requested the defendants to register the gift given by their mother, first defendant. There was no further suggestion made to PW-1 stating that there was no such request nor there is any evidence on the side of the defendants to rebut such a stand. PW-2 in his cross examination stated that 9 grounds and 1400 sq.ft., was allotted to the first defendant as per the Will and all the defendants wanted the plaintiff to deliver the entire property of 29 grounds and after negotiation, it was agreed between the plaintiff and the defendants that the first defendant would deliver 9 grounds and 1400 sq.ft., to the plaintiff and the plaintiff would put the defendants in possession of the remaining extent. Further, it has been stated that the defendants agreed to execute a register gift deed in favour of the plaintiff, though the gift deeds were executed, they were not registered and the reason for not registering the gift deeds was because they did not get stamp duty exemption from Tamil Nadu State Government, one gift deed was executed by Tmt.Rajeswari Ammal and her sons, who are the defendants, the defendants took possession of 20 grounds of land after they delivered 9 grounds and 1400 sq.ft., to the plaintiff Trust.
48. Further, PW-2 in his cross examination stated that they have not put up any construction in the suit property, since Corporation of Chennai insisted to produce patta to provide sanction and revenue authorities refused to issue patta and they asked them to produce atleast Court order to show that they are owners of the property. Further, PW-2 would state that the defendants are living in and around the suit property, they have built the houses on the remaining land and they are in occupation of those houses. The evidence of PW-2 is cogent. This evidence read along with the recitals of Ex.P.2 & Ex.P3 clearly establishes the intention of parties, the agreement which was arrived at between them, the fact that the plaintiff surrendered 20 grounds out of the total extent and the plaintiff was put in possession of 9 grounds and 1400 sq.ft., in furtherance to the gift. There was no contra evidence on the side of the defendants as none of the defendants chose to get into the witness box and no documentary was produced by the defendants.
49. In such scenario, it has to be examined as to whether the possession of the plaintiff on and after execution of Ex.P2 gift deed was adverse to the interest of the defendants. It is true that initially in 1964, the founder of the plaintiff Trust came into possession of the total extent of 29 grounds as a lessee. This possession continued after the lease was extended by Ex.P1. The possession of the plaintiff on and after the execution of Ex.P2, was not in the capacity of lessee, but that of a Donee.
50. The learned Senior counsel appearing for the defendants submitted that permissive possession for a long does not convert to adverse possession and the claimant must show hostile animus and possession adverse to the knowledge of real owner and person pleading adverse possession has no specific equity in his favour, since he is trying to defeat the right of the true owner and it is for him to clearly plead and establish all facts necessary to establish his adverse possession. In support of his contentions, the learned counsel placed reliance on the decisions of the Hon'ble Supreme Court in Roop Singh (dead) through Lrs vs. Ram Singh (dead) through LRs [2000 (3) SCC 708]; Kamakshi Builders vs. Ambedkar Educational Society & Ors., [2007 (12) SCC 27]; and Chatti Konati Rao & Ors., vs. Palle Venkata Subba Rao [2010 (14) SCC 316].
51. It is also the contention of the defendants that there is no animus and there is inconsistency in the pleadings made by the plaintiff and animus did not start during 1964, since the status of the plaintiff was that of the lessee and it cannot be stated to have started in 1985, since the gift deed Ex.P2 is an unregistered document. In support of such contention, the learned counsel placed reliance on the Hon'ble Supreme Court in Konda Lakshmana Bapuji vs. Govt., of A.P., & Ors., [2002 (3) SCC 258]; and Union of India vs. Ibrahim Uddin & Anr., [2012 (8) SCC 148].
52. After carefully analyzing the long line of decisions, the following principles could be culled out as regards the plea of adverse possession. It has been consistently held in the decision of the Hon'ble Supreme Court referred to by the learned Senior counsel that the plea of adverse possession is not a pure question of law, but a blended one of fact and law. A person whose claim adverse possession should show (i) on what date he came into possession (ii) what was the nature of his possession (iii) whether his possession was known to the opposite party (iv) how long his possession continued and (v) his possession was open and undisturbed. (see Karnataka Board of Wakf vs. Government of India, 2004 10 SCC 779).
53. It is to be seen as to whether the plaintiff fulfilled the above five conditions to substantiate their plea of adverse possession. The founder Trustee of the plaintiff became a lessee of the larger extent of 29 grounds in 1964 by virtue of a registered lease deed dated 20.08.1964. The period of lease was for five years upto 01.09.1969 with an option for renewal. Request was made for extension of lease for a further period of three years from 01.09.1969 with an option for renewal for a further period of two years. This request was favourably considered and by deed of lease dated 17.12.1969, Ex.P.1 Thiru.C.M.K.Viswanatha Mudaliar and the defendants 2, 4 & 5 granted lease to the founder trustee for a period of three years in respect of the entire extent of 29 grounds 486 sq.ft. Thus, by virtue of Ex.P.1, the status of trustee was that of a lessee, there cannot be any dispute on this factual aspect.
54. After the execution of Ex.P.2 and Ex.P.3, the status of the plaintiff stood altered, as held by us earlier both these transactions formed a composite transaction and cannot be read in isolation. The recitals in Ex.s P.2 & P.3 are clear to establish that the plaintiff, who was then the lessee had surrendered possession of an extent of about 20 grounds to the defendants. The taking over of possession was acknowledged and the Donor, first defendant gifted 9 grounds and 1400 sq.ft., to the plaintiff and the defendants delivered possession of the property so gifted. Therefore, by virtue of the recitals in Ex.P.2 & Ex.P.3, the plaintiff came into possession of the suit property in their own right w.e.f., 06.01.1985. The plaintiff is sought to be non-suited on the ground that such possession by virtue of an unregistered document cannot confer any right on them. We have already held that though Ex.P.2 gift deed does not create a valid title in the plaintiff, the same could be looked into for collateral purpose to show the nature and continuous possession of the plaintiff. This conclusion is fortified by the following decisions.
55. In Secretary of State and another vs. Mahant Harcharan Das [AIR 1926 Oudh 98], a similar question was considered. The appeal in the said case arose out of a suit for possession of two plots brought by the plaintiff Mahant Harcharan Das against the State and 11 others. The case of the plaintiff was that one Mr.Sankar Lal was the owner of the plots and he made a gift of the plots in favour of his predecessors in title and he remained in possession of the said plots throughout. The Municipal Board gave the plots to the defendants 3 to 12 for building purposes and those had caused dispossession of the plaintiff. The plaintiff therefore claimed a decree for possession of the land as proprietor. The defendant State denied that the plots belonged to Sankar Lal and also the gift made by him in favour of the predecessor-in-title of the plaintiff. It was also contended that the gift being unregistered was invalid and conveyed no title to the plaintiff and the plots of land belonged to the defendant No.1. The trial Court found that Sankar Lal was not the owner of the plots, but was merely a grove-holder and that the deed of gift was inoperative being unregistered. On these findings, the suit was dismissed. On appeal, the Sub-Court allowed the plaintiff to amend the plaint by allowing him to claim as a grove-holder and having found that the plaintiff had continuously been in possession of those plots, decreed the suit. In Second Appeal one of the questions, which was considered was that the deed of gift was invalid being unregistered and was therefore ineffective to pass any title to the plaintiff. While considering the said question, it was held that the deed of gift was invalid for want of registration. It was further held, it is clear that the plaintiff had been in possession of the grove over, since the date of gift right upto the date of suit for a period of close about 40 years, the unregistered gift deed may be invalid, but it is relevant for a collateral purpose to show the continuous possession of the plaintiff. It is further held that Sankar Lal or his heirs could not have claimed back the grove from the plaintiff or his predecessor-in-title, after the expiry of 12 years from the date of the execution of the deed of gift. The right to possession became perfected after the expiry of 12 years from the date of the gift. Reliance was placed on the decision of the Privy Council in N.Varada Pillai and another vs. Jeevarathnammal [Vol 38 MLJ 313].
56. In N.Varada Pillai and another vs. Jeevarathnammal [Vol 38 MLJ 313], (Privy Council) one of the questions which fell for consideration is does adverse possession change its character, when the possessor acquires title by an unregistered gift deed, which is inadmissible in proof of title. The Hon'ble Privy Council held as follows:-
It should be added that although the petitions of 1895 and the change of names made in the register in consequence of those petitions are not admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Duraisani. In other words, although the petitions and order do not amount to a gift of the land, they lead to the inference that the subsequent receipt of the rents by Duraisani was a receipt in the character of donee and owner of the land, and therefore in her own right and not as trustee or manager for her mother and aunt.
57. Therefore, even if the Ex.P.2 gift deed is an unregistered instrument, inadmissible in evidence, the recitals therein read with recitals in Ex.P.3 which is also an unregistered instrument could be referred to for explaining the nature and character of possession of the plaintiff. In the light of above conclusion and taking note of the recitals in Ex.P.2 & Ex.P.3, the nature of possession of the plaintiff after 06.01.1985, was that of a Donee and plaintiff's possession was adverse to that of the defendants.
58. The third test to be satisfied is as to whether the possession was known to the opposite party. It is not in dispute that the defendants reside in and around the suit property. PW-2 in his cross examination has also stated about the same and the defendants have not denied such contention. In fact, the recitals in Ex.P2 & Ex.P.3 also establish the same and it is proved that the defendants knew about the possession of the plaintiff after 06.01.1985. In view of such conclusion, it has to be necessary held that the plaintiff has been in possession as a Donee from 06.01.1985. Undoubtedly the plaintiff's possession was open and undisturbed, property tax has been remitted by the plaintiff in their name and which have been proved by Exs.P8, P9, and P14 to P18. The electricity connection also stands in the name of the plaintiff as proved by Ex.P10 and Ex.P19 series, the Original Electricity Meter Cards. Thus, the plaintiff has satisfied all the five conditions, which have been laid down as broad tests, which a person claiming adverse possession should satisfy.
59. We have held that the nature of possession of the plaintiff was that of a Donee after 06.01.1985, the date in which they came into possession, their possession was known to the defendants and they continued to be in possession as Donee for more than the prescribed period of 12 years and their possession was open and undisturbed.
60. In Venkatasubramania Ayya & Ors., vs. S.Sivagurunatha Chettiar & Ors., [AIR 1938 Madras 60], one of the questions which fell for consideration before the Division Bench of this Court was the date from which adverse possession of alienee starts in cases of void and voidable transfers. In the case on hand, the defendants contention is that Ex.P2 gift deed being an unregistered document, no title flows from the same and the same is inadmissible. The Division Bench while considering such question held as follows:-
On the other hand, if the original transfer was void, then the alienee would have been adverse possession since the date of transfer i.e., 1900 in the case above put. The above is the effect of 44 Mad 831 [Vidya Varuthi vs. Baluswami Iyer], 12 Pat 251 [Ram Charan Das vs. Naurangi Lal], 46 Mad 751 [Subbaiya Pandaram vs. Mahammad Mustapha Maracayar]; and the cases there cited and later cases such as AIR 1983 PC 44 [Mahadeo Prasad Singh vs. Karia Bharthi], which follow the above. The 12 Pat 251, group is dealing with the case of a transfer that is effective up to a time; the 46 Mad 751 group with cases void ab initio. Both groups date the adverse possession from the moment the alienee is without lawful title. That time is, in the case of a void transfer, the date of the transfer; in the case of a voidable transfer, the date of the avoidance; in the case of a transfer effective for a period (whether because of estoppel or otherwise), the date of the termination of the period.
61. Therefore, if the original transfer was void, then the alienee or the Donee in this case would have been in adverse possession from the date of transfer, which in the instant case is 06.01.1985, the date on which according to the defendant, the plaintiff is without lawful title. This decision fully supports our conclusion that the date from which the plaintiff is in possession adverse to the interest of the defendants is 06.01.1985.
62. Useful reference may be made to the decision of the Division Bench of this Court in (Karnam) Kandaswamy Pillay vs. Chinnabha & Ors., [AIR 1981 Madras 82]. The Division Bench held that an unregistered sale cannot be set up as a transaction having effect of itself to transfer any interest in property; but it is permissible to consider it, as showing the nature of transferees subsequent possession. That being established it would after the expiry of 12 years ripen into a full title.
63. In the light of the above discussion, we hold that the plaintiff has perfected title by adverse possession and question number (iv) is accordingly answered. We are unable to subscribe to the view of the learned Single Judge that the possession of the plaintiff Trust was only as a lessee and the impugned judgment cannot be sustained.
64. In the result, the appeal is allowed and the judgment and decree in C.S.No.22 of 2004, dated 22.06.2012, is set aside and the suit is decreed as prayed for. The party shall bear their respective costs. Consequently, connected miscellaneous petition is closed.
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