Madras High Court
Kannammal vs G. Panchakshara Chetty And Ors. on 30 October, 1987
Equivalent citations: (1988)2MLJ11
JUDGMENT Bellie, J.
1. The defendant Kannammal is the appellant in this second appeal. The suit relates to 1.35 acres of land in Amur Village (1.10 acres in S. No. 143/5 and Order 25 acres in S. No. 143/6 aggregating to 1.35 acres). The suit is filed for declaration of title and injunction. The suit land originally belonged to one Lakshmana Naidu. He executed a simple mortgage of the land in favour of one Chinna Munusamy on 12.6.1930. In discharge of that mortgage the mortgagor executed a sale deed in favour of the mortgagee's son by name Rajagopala Chetty on 1.5.1937. This Rajagopala Chetty is the father of the plaintiffs 1, 3 and 6. (Originally the suit was filed by the first plaintiff first son of Rajagopala Chetty and the second plaintiff the lessee of the land, but subsequently second son of Rajagopala Chetty, wife of Rajagopala Chetty and his two daughters were impleaded respectively as plaintiffs 3 to 6). It is the case of the plaintiffs that since the date of sale in favour of Rajagopala Chetty himself, and after his death his sons, wife and daughters i.e. the plaintiffs 1 and 3 to 6 were in possession and enjoyment of the land by leasing it to the second plaintiff. While so the defendant manoeuvered to get patta for the land in the year 1961 during survey operations under the Madras Estates Abolition Act. The grant of patta for the land to the defendant does not affect the rights of the plaintiffs, but the defendant is interfering with their possession.
2. As against this the defendant would contend that Rajagopala Chetty was a Zamindar of the suit village (Amur). The defendant's husband Muruga Pillai had been working as an Accountant under Rajagopala Chetty and before that under his father Chinna Munuswamy Chetty for a number of years and for the meritorious services rendered by him as such Accountant Rajagopala Chetty wanted to gift the suit land to him and at the suggestion of Muruga Pillai it was gifted to his wife the defendant has orally in 1952, and since then the defendant has been in possession of the land. In 1954 she leased out the suit land to the second plaintiff. Amur village was taken over by the Government under the Estates Abolition Act, and after Rajagopala Chetty gave consent letter the defendant was granted a ryotwari patta for the land. When the defendant's' husband died she obtained a loan of Rs. 500 from the second plaintiff the lessee on the understanding that the loan amount should be adjusted from the future Kuthagai (rent) to be paid by the second plaintiff to the defendant for the land. When the second plaintiff insisted for repayment of the amount due under the promissory note he was told by the defendant that the entire amount had already been discharged by adjustment of three years Kuthagai. The second plaintiff declined to return the promissory note. The defendant wanted him to surrender possession of the land and he agreed. But when the defendant's men went to plough the land they were obstructed. The second plaintiff with the connivance of the first plaintiff with a view to deprive the defendant of the suit land has filed the suit fabricating documents. The defendant has absolute right to the suit land by virtue of the ryotwari patta issued to her and also by adverse possession. It is further contended that the plaintiffs by their conduct are estopped from disputing the title and possession of the defendant.
3. The learned District Munsif, Tiruvallur, who tried the suit held that the alleged gift by Rajagopala Chetty is not true and that the ryotwari patta issued to the defendant does not confer any right on the defendant and further held that the second plaintiff was a lessee under the plaintiffs 1 and 3 to 6 and not under the defendant and that the defendant has not prescribed any title by adverse possession. On these findings he decreed the suit as prayed for.
4. On appeal by the defendant the Subordinate Judge who heard the appeal framed two points for consideration:
1. Whether the alleged oral gift of the suit properties by Rajagopala Chetty in favour of the defendant in the year 1952 is true?
2. Whether the defendant has perfected her title to the properties by adverse possession?
He took up both points together for consideration. Without any definite finding whether Rajagopala Chetty had given the land to the defendant as a gift, he held that even if Rajagopala Chetty did give the land as a gift, that gift is invalid because the land belonged to the joint family of Rajagopala Chetty and his two sons, and Rajagopala Chetty as Kartha of the family had no right to gift away the land, and mainly on this basis the learned Sub Judge has held that it cannot be said that there was gift of the land by Rajagopala Chetty. The learned Judge has further held that there is absolutely no proof to show that the defendant was in possession of the land prior to 1961 and the defendant has failed to prove prescription of title by adverse possession. On these findings the first appellate Court has held that the plaintiffs have title and possession of the suit properties and therefore they are entitled to declaration of title and injunction. Accordingly he concurred with the decree of the trial Court. Hence the second appeal by the defendant.
5. One important fact that has to be borne in mind is that in the patta proceedings under the Estates Abolition Act the defendant has beet; granted patta Ex.B-6 in 1961. It is not in dispute that the defendant claimed patta and she has been granted. But it is no the plaintiffs' case that Rejagopala Chetty who was then alive did make any claim for patta. Nor is the case of the plaintiffs that after this death any of his survivors in his family did at any time make any claim for patta. Therefore a natural question arises as to why Rajagopala Chetty or any members of his family did not make claim for patta. Rajagopala Chetty was the Zamindar of the village. Therefore it is unthinkable that he would have kept quiet if really, according to him, the land belonged to him. In fact Sub-section (1) of Section 15 of the Tamil Nadu Estates (Abolition and Conversion into Ryotwari) Act, 1948, which deals with determination by the Settlement Officer of entitlement of the landholder to a ryotwari patta contemplates a claim by the landholder. The said Sub-section reads thus:
15. DETERMINATION OF LANDS IN WHICH THE LANDHOLDER IS ENTITLED TO RYOTWARI PATTA UNDER FOREGOING PROVISIONS: (1) The Settlement Officer shall examine the nature and history of all lands in respect of which the landholder claims a ryotwari patta under Sections 12, 13 or 14 as the case may be, and decide in respect of which lands the claim should be allowed.
According to the defendant, far from making any claim, Rajagopala Chetty has given in writing to the Settlement Officer a letter during the enquiry stating that he had no objection for patta being granted to the defendant. A certified copy of that letter according to the defendant is Ex.B-10. No objection has been made by the plaintiffs for marking of this document. There is nothing to suggest that it is not a genuine one. Under Section 77 of the Evidence Act a certified copy of a public document can be produced in proof of the contents of the public document. The said consent letter by Rajagopala Chetty given to the Settlement Officer is no doubt a public document and therefore Ex.B-10 certified copy can be received in proof of the consent letter by Rajagopala Chetty. A perusal of Ex.B-10 shows that Rajagopala Chetty had stated in his letter that the said land did not belong to him and he had no objection to the patta being given to the defendant. A reading of this document clearly shows that this was given to the final Settlement Thasildar in the year 1961. This would show that Rajagopala Chetty himself took part in the settlement proceedings and he had stated before the Settlement Officer that the land did not belong to him and he had no objection for the patta being given to the defendant. This means, according to Rajagopala Chetty, the land belonged to the defendant. The defendant's case is that it has been gifted to her by Rajagopala Chetty in the year 1952. According to the first appellate Court, Rajagopala Chetty had given the land as gift but it is invalid because as a joint family manager he had no right to give away any joint family land. This is not correct. In Mulla Hindu Law, 15th Edition, page 294 in paragraph 226 it has been stated that:
A Hindu father or other managing member has power to make a gift within reasonable limits of ancestral immovable property for pious purposes.
In fact even the authorities relied on by the trial Court for holding that a Hindu father has no right to gift joint family property would state that to a limited and circumscribed extent a Hindu father had right. Therefore it cannot be argued that a joint family manager has absolutely no right to give in gift any property of the joint family. As seen above, Rajagopala Chetty was a Zamindar. Therefore he should have been owning vast extent of lands. The suit land, which according to the defendant, has been gifted to her, is just 1.35 acres. It is the case of the defendant that her husband Muruga Pillai was serving the Zamindar's family for over 40 years as a cook and is recognition of that services the land has been gifted to the defendant by the Zamindar. This would show that a small portion of the vast lands of the Zamindar has been gifted to the defendant for a pious purpose. Therefore it cannot be stated that Rajagopala Chetty had no right to give in gift the suit land as alleged by the plaintiffs. Then it is argued that under Section 123 of the Transfer of Property Act, for the purpose of making a gift of immovable property the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses, and for non-compliance of this, any oral gift made by Rajagopala Chetty is not valid. True, in view of Section 123 of the Transfer of Property Act no oral gift would be valid in law but in spite of being invalid the factum of gift will be there. In pursuance of such gift the donees could be in possession of the property so gifted. Therefore there could be a gift of land made by Rajagopala Chetty, though invalid, and the defendant could be, as claimed by her, in possession of the land.
6. Possibly on the basis of such possession by the defendant and on the basis of the letter the original of Ex.B-10 given by Rajagopala Chetty, the Settlement Officer, has given the ryotwari patta to the defendant. Having given the original letter Ex.B-10 and after the issuance of patta in favour of the defendant will it be open to Rajagopala Chetty subsequently to contend that the defendant had no right to the land and therefore the patta given to her will be of no effect? Indeed, Rajagopala Chetty did not raise any such contention by way of suit or otherwise until he died in February, 1966. Three years after he died i.e. in 1969 the suit has been filed. Till then no complaint whatsoever has been made by the plaintiffs against the grant of patta. The question is will it be open to the plaintiffs now to say that the defendant has no title to the land. In my view they are estopped from contending so. As seen above Rajagopala Chetty in the said consent letter of his to the Settlement Tahsildar has even stated that the land does not belong to him and then he has stated that he has no objection for granting patta to the defendant. Having made such a definite categoric representation to the Settlement Tahsildar on the strength of which patta has been granted to the defendant it would be most inequitable for Rajagopala Chetty to subsequently say that the defendant had no right and so is the case with the plaintiffs 1 and 3 to 6 who are the representatives of Rajagopala Chetty.
7. Even if the defendant had no title before the Settlement proceedings, inasmuch as she has been granted patta, she cannot be said to have no right in the land. Section 3 of the Act which provides for abolition of the estates reads that with effect on and from the notified date and save as expressly provided in the Act, the entire estate (including all communal lands and porambokes, forests, mines and minerals quarries, rivers and streams, tanks and coranies (including private tanks and coranies) and irrigation works fisheries and ferries) shall stand transferred to the Government and vest in them free of all encumbrances, and the Tamil Nadu Revenue Recovery Act, 1864, the Tamil Nadu Irrigation Cess Act, 1865 and all other enactments applicable to ryotwari areas shall apply to the estate, and under Section 3(d) the Government has been given right to take possession forthwith of such estate.
8. These provisions unequivocally show that the entire land in the estate on and from the date of notification shall stand transferred to and vest in the Government. This means no one whether a landholder or a ryot will have title to the land. Of course the Government's right to take possession forthwith is subject to proviso under Section 3(d) which reads:
Provided that the Government shall not dispossess any person of any land in the estate in respect of which they consider that he is prima facie entitled to a ryotwari patta.
(i) if such person is ryot pending decision of the Settlement Officer as to whether he is actually entitled to such patta,
(ii) if such person is a landholder pending the decision of the Settlement Officer and the Tribunal on appeal, if any to it as to whether he is actually entitled to such patta.
The proviso occurring, as it does, under Section 3(d) only qualifies the right given to the Government under Section 3(d) to take possession of the estate. Even here some discretion is given to the Government for (only) if the Government consider that the person concerned is PRIMA FACIE entitled to ryotwari patta, the Government shall not dispossess him, and Clauses (i) and (ii) under the proviso show that the proviso would operate only for the period till the decision of the Settlement Officer as to whether a ryot or a landholder is actually entitled to such patta. Thus it seems to be that the proviso is provided more as a matter of convenience than of right. Then comes Sub-section (e) according to which:
the principal or any other landholder and any other person, whose rights stand transferred under Clause (b) or cease and determine under Clause (c) shall be entitled only to such rights and privileges as are recognised or conferred on him by or under this Act.
From all these it would appeal that as far as the title is concerned, on and from the date of notification it vests with the Government and no vestiges of title is left with any ryot or landholder. Then comes the question of granting ryotwari patta under Section 11 to a ryot and under Sections 12, 13 and 14 to a landholder. In the present case the defendant seems to have claimed patta as a owner of the land. Whatever it may be she had been granted patta under Section 11 or under Sections 12 to 14. There was no rival claimant for patta. Both sides in the appeal relied on a recent Supreme Court decision in State of Tamil Nadu v. Ramalinga Swamigal Madam . The learned Counsel for the respondents/plaintiffs also relied on a judgment of Srinivasan, J. in T.K. Ramanujam Kavirayar v. Sri-In-Sri Sivaprakasa Pandara Sannadhi Avergal, 1987 T.L.N.J. 91. In paragraph 10 of the Supreme Court Judgment it is observed with reference to vesting of land in the Government under Section 3 that:
however, such vesting of the entire estate in the Government on and from the notified date and the Government's right to recover possession thereof are qualified by the proviso thereto whereunder the possession (occupancy right) of a ryot in ryoti land and of a landholder of his private land in the estate is protected.
This observation is general, and it is not stated as to what extent the vesting of title is affected by this proviso. The subsequent observation in paragraph 13 makes it clear that according to the Supreme Court the title does vest in the Government leaving no manner of right of title in the ryot or landholder. It is observed thus:
Since from the notified date all the estate vests in the Government free from encumbrances it must be held that all the lands lying in such estate including private land of landholder and ryoti land cultivated by a ryot would vest in the Government and the Act could be said to be creating a new right in favour of a landholder (re: his private lands) and a ryoti (re: ryoti land) by granting a ryotwari patta to them under Sections 12 to 15 and Section 11 respectively and the Act provides for determination of such right by the Settlement Officer.
It is apparent therefore, that when a ryotwari patta is granted under the provisions of the Act the grantee is conferred new rights, but that will be on the basis of the ryot's previous possession and the landholder's previous title. Considering the object of the Act i.e. Abolition of Zamindari system, and the fact that even the title of the landholders in their private lands is also put an end to and in its place new rights are conferred and that right is. evidenced by a ryotwari patta and no parameters of that right has been prescribed, the new rights can be taken to be nothing but proprietory rights. A duty is cast on the Government to issue ryotwari patta and a ryot is entitled to ryotwari patta under Section 11 and a landholder under Sections 12 to 14, Every patta issued by the Government cannot be said to confer proprietory rights, but ryotwari patta issued under the provisions of the Act, in the circumstances stated above, can be said to confer such rights. Unless ryotwari patta issued is cancelled the holder of the patta must be deemed to have title to the land. Certainly the ryotwari patta is not merely a bill for rent or assessment as stated in some of the judgment including State OF Madras v. Parisutha Nadar (1961)2 M.L.J. 285, I have above referred to the fact that Rajagopala Chetty or the plaintiff did not choose to make any claim. What is important is, in the Rules framed under the Act Limitation has been prescribed for a claim by the landholder. Rule 2 of the Rules published in the Rules Supplement to Part I of the Fort St. George Gazette, dated 31st October, 1950 reads as follows:
2(a) Every landholder claiming a ryotwari patta under Sections 12, 13 or 14 as the case may be, shall apply in writing to the Settlement Officer within six months from the notified date or within two months from the date of publication of this notification whichever is later. Subject to the provisions of the Act and these rules, every application made to the Settlement, Officer under this rule, after the period of limitation prescribed therefor, shall be dismissed although limitation has not been set up as a defence.
No such application made shall be admitted after the period of limitation prescribed therefor in this rule on the ground that the applicant had sufficient cause for not preferring the application within such period.
Therefore under the Rules the limitation for making a claim for patta by the landholder is six months and it has been definitely laid down that no further time will be extended under any circumstances. It is therefore clear that the plaintiffs have lost their right to claim patta under the provisions of the Act. Can this position be obviated by filing a suit for declaration and injunction against the grantee of a patta? I am afraid it cannot be. No points such as these arose in the Supreme Court Judgment in State of Tamil Nadu v. Ramalinga Swamigal Madam . The point that fell for decision by the Supreme Court was whether by reason of the Settlement Officer's decision to grant or refuse to grant patta under Section 11 the Civil Court's jurisdiction to adjudicate on the real nature of the land is ousted. This point was answered in the negative by the Supreme Court i.e., by stating that the civil Court's jurisdiction is not ousted.
9. Now, granting that there is no limitation and the landholder need not make a claim before the Settlement Officer, can be straightway go to the Civil Court and obtain a decree for declaration of title and injunction even though a patta has been granted to another person? As stated above, under the provisions of the Act on and from the date of notification the title of the land stands transferred to and vested in the Government. Therefore, without any fresh conferment of title by the Government no title subsists in the landholder. Hence no question of declaration of title arises. But if he is the person lawfully entitled to patta, for declaration of that entitlement he may file a suit. This is because there is no clear provision in the Act to decide a question who is entitled to patta as between rival contenders and therefore the Civil Court's jurisdiction to decide such an issue is not ousted. In paragraphs 13 and 14 of the Supreme Court Judgement State of Tamil Nadu v. Ramalinga Swamigal Madam two propositions enuncitated in Dhulabhai Case . HAVE BEEN REFERRED to, and as to the first proposition it is stated that:
The statute, when it creates a special right or liability and provides for its determination, should also lay down that all questions about the said right or liability shall be determined by the Tribunal or authority constituted by it, suggesting thereby that if there is no such provision it will be difficult to infer ouster of the Civil Court's jurisdiction to adjudicate all other questions pertaining to such right or liability.
and as to the second proposition it is state that even where the statute has given finality to the orders of the special tribunal the civil Courts jurisdiction can be regarded as having been excluded if there is adequate remedy to do what the civil Court would normally do in a suit. In other words, even where finality is accorded to the orders passed by the special tribunal one will have to see whether such special tribunal has powers to grant reliefs which civil Court would normally grant in a suit and if the answer is in the negative it would be difficult to imply or inter exclusion of civil Court's jurisdiction.
Applying these propositions to Sections 11 and 64(c) of the Act the Supreme Court in State of Tamil Nadu v. Ramalinga Swamigal Madam has stated that Civil Court's jurisdiction is not ousted to decide as to the nature of the land. In my view the said principles enunciated in Dhulabhais case will also apply to the dispute between the rival claimants under Section 11. In Section 15 whereunder a landholder's claim has to be considered there is no clear provision as to the enquiry and decision as regards the rival claims. I find therefore that under Section 15 the Civil Court's jurisdiction is not ousted as regards the dispute between the two rival claimants. But as stated above the suit must have been one for declaration of entitlement for patta. Therefore the present suit as it stands framed is misconceived. Here it would be apt to quota what Ramachandra Iyer. J., (as he then was) has ruled with reference to Section 11 of the Act in Krishnaswami Thevar v. Perumal Konar 1961 M.W.N. 225.
...As Section 11 declares that the lawful ryot would alone be entitled to the patta it must be held that it would be open to the aggrieved party to get the matter adjudicated in a civil Court notwithstanding the fact that ryotwari patta has been granted under the provisions of Section 11. If the civil Court in such a suit gives a declaration as to who is the party that will be entitled to the rights created unde7 Section 11. it will be the duty of the Government to cancel the previous patta issued to the trespasser and grant it to the real ryot.
[Emphasis supplied]
10. Then according to the defendant, in any case she has perfected title by adverse possession. This contention is made on the basis that even though the alleged gift is invalid, possession was in fact delivered under the gift in 1952, and from then on the defendant has been in possession and the suit having been filed in 1969 the defendant has perfected title by adverse possession. Referring to Ex.B-10 the first appellate Court would state that Rajagopala Chetty must have gifted the land to the defendant, But it (first appellate Court) has further observed that it cannot be stated that the gift was made in 1952 and not later. I do not find any sufficient reason to differ from this view. Therefore I am unable to accede to the case of the defendant that in any case the defendant has prescribed title by adverse possession.
11. In the result in view of my above findings the plaintiffs have no title and the suit is not maintainable. Consequently the second appeal is allowed with costs and the judgments of the Courts below are set aside and the suit is dismissed. No costs.