Madras High Court
Kiliyambal vs R. Govindaraju, R. Parasuraman And S. ... on 20 March, 2002
Equivalent citations: (2002)2MLJ136
JUDGMENT A.S. Venkatachalamoorthy, J.
1. The plaintiff who lost before the courts below is the appellant herein.
2. The plaintiff filed a suit in O.S.No.1082 of 1984 on the file of Principal District Munsif, Villupuram against the respondents herein praying for a decree declaring that she is the absolute owner of the suit properties and for permanent injunction restraining the defendants 1 and 2, who are none else than her sons, from interfering in any manner with her possession and enjoyment of the suit properties through her tenant, the third defendant.
3. Briefly, it is the case of the plaintiff that she purchased the suit properties under Exs.A.1 and A.2 from Seethammal and Thambusamy Reddiar respectively on 1.9.1955. But, however the document was written in the name of her sister Ellammal, so that the husband of the plaintiff, who was leading a wayward life would not be able to lay his hands on those properties. Later on, the plaintiff in the year 1959, thought it would be better if the suit properties are taken back from Ellammal. As the plaintiff apprehended that her husband might flit away with the properties, if they were taken back in her own name, at her request Ellammal executed a sale deed in favour of defendants 1 and 2. The case of the plaintiff is that the properties were purchased in the name of of Ellammal as Benami and that the settlement was not entitled to confer title upon the defendants 1 and 2. The case of the plaintiff is that even after the settlement, she has been dealing with the properties as a sole owner, which would only show that the settlement was not acted upon. According to the plaintiff, she alone she alone is the absolute owner of the properties and that she is entitled for permanent injunction.
4. The defendants 1 and 2 resisted the suit inter alia contending that the allegation of the plaintiff that her husband was a spent-thrift and living a wayward life is an utter falsehood. According to the defendants, the properties were purchased only by Ellammal on 1.9.1955 under Exs.A.1 and A.2 and she later on executed a settlement deed in favour of defendants 1 and 2 and in fact the plaintiff has been named as a Guardian/mother in the said document as they were minors and had to be represented. The further case of the respondents is that even according to the recitals in the Settlement deed under Ex.A.10, the plaintiff has to be in possession and manage the same and the moment the first son attained majority, the plaintiff should hand over possession of the property, who will thereafter manage it on behalf of the second defendant also. Therefore the claim of the plaintiff that she is entitled to the properties is totally erroneous.
5. The Trial Court, however, dismissed the suit and the appeal in A.S.No.45 of 1987 preferred by the plaintiff on the file of Sub-court, Villupuram also met with the same fate. The plaintiff, being aggrieved by the said judgment and decree in A.S.No.45 of 1987 has preferred the above second appeal.
6. This court at the time of admitting the second appeal, framed the following questions of law.
"(1) Whether the Courts below can reject the recitals found in Ex.A.10 and come to the different conclusion merely on the basis of non-examination of Ellammal?
(2) Whether the Courts below were justified in not having compared the signatures found in Ex.A.17 with that of vakalat and written statement?"
7. The case of the plaintiff is that the suit properties were purchased under Exs.A.1 and A.2 in the name of Ellammal and it was she who paid the sale consideration. According to her, the properties were purchased as Benami in the name of Ellammal, so that her husband who was leading a wayward life would not be in a position to touch the properties. The defendants 1 and 2 however disputed the claim that the plaintiff was leading a wayward life. Even assuming that the husband of the plaintiff was not leading a wavered life, if the plaintiff is able to convince this Court that it was she who paid the consideration for the transactions under Exs.A.1 and A.2 and purchased the properties in the name of Ellammal, certainly, she is bound to succeed on that issue. With regard to this, apart from the oral evidence of the plaintiff, the plaintiff would also rely on Ex.A.10, which is a settlement deed executed by Ellammal in favour of defendants 1 and 2. It has to be remembered that the defendants 1 and 2 also claim their title only under the said document. In other words the fact that the document was executed by Ellammal is not disputed by defendants 1 and 2. Equally it is not the case of the defendants 1 and 2 that any portion of the recitals of the document were not given by Ellammal to the scribe or that she acted under any coersion or undue influence or some fraud had been played on her while her executing the document. In those circumstances, what has been stated in the Settlement deed should be taken as undisputed facts. In para 2 of the said document it is stated as under: i# ikdh;fs; ,UtUk; vd; j';if fpspahk;ghspd; Fkhuh;fs;/ i#ahh;fspd; jfg;gdhh; uhkyp';fk; gps;is rhpahd Kiwikapy; FLk;gk; bra;ahky; tHp jtwp ele;J te;jjhy; i#ahh; jhahh; fpspahk;ghs; jd; gzj;ijf; bfhz;L moapy;fz;l brhj;ij vd; nghpy; nghputyhf th';fp itj;jpUf;fpwhh;fs;/ ....... ........ i# ikdh;fs; ,Uthpy; Kjy;; egh; nk$uhFk; tiuapy; i#ahh; jhahuhfpa fpspahk;ghs;. fPH;fz;l brhj;ij ahbjhU guhjPdKk; bra;ahky; manage bra;J i# tUkhdj;jpypUe;J ikdh;fis rtu&pj;J tu ntz;oaJ/ i# ikdh;fspy; Kjy; egh; nk$uhdJk; i#ahhplk; i# fpspahk;ghs; brhj;ij xg;g[f;bfhLj;J tpl ntz;oaJ/ i# Kjy; egh; me;j njjpapypUe;J brhj;ij manage bra;J te;J 2tJ egh; nk$uhdJk; ,UtUk; rkghfkhf rh;tRje;jpukha; jhdhjp tpf;fpua';fSf;F nahf;fpakha; mila ntz;oaJ/ i# brhj;jpy; vdf;F ahbjhU ghj;jpaKkpy;iy/ ,e;j brl;oy;bkz;il khw;wnth uj;J bra;anth vdf;F vf;fhuzk; bfhz;Lk; mjpfhukpy;iy/ ,e;jg;gof;F rk;kjpj;J vGjp itj;j brl;oy; bkz;L gj;jpuk;/@ The above would clearly show that Ellammal was a benami for the plaintiff herein. The non-examinatin of Ellammal under these circumstances will not in any way affect the case of the plaintiff. In other words, in as much as there is a clear admission in the document namely, Ex.A.10 executed by Ellammal to the effect that it was the plaintiff who purchased the property by parting of consideration in her name,the examination of Ellammal is absolutely unnecessary. The further recitals would show that according to Ellammal, the husband of the plaintiff was leading a wayward life.
8. The next question is whether Ex.A.10 document was intended to be acted upon or not?
9. Admittedly, on the date of registration of the settlement deed, the first defendant was 17 years old and the second defendant was 14 years old. According to the settlement deed, the moment the first defendant attains majority, the plaintiff should hand over possession to the first defendant, who will manage it on behalf of the second defendant also. Obviously, the first defendant should have attained majority even before 1961. The documents now that are available before this Court namely, Ex.A.3 to A.7 of the years 1973 to 1980 would clearly show that it was the plaintiff, who was in possession and enjoyment of the properties exclusively. She leased out the properties to third parties and the lease deeds are marked as Exs.A.3 to A.5. Ex.A.6 is the kist paid for fasli 1388 by none else than the plaintiff. Ex.A.7 is the patta, which also mentions the name of the plaintiff as the owner of the land.
10. On the other hand, defendants-1 and 2 (respondents 1 and 2 herein) produced certain documents to show that they have been in possession and enjoyment of the suit property. It could be seen that except Exs.B-8 and B-10, all other documents came into existence after the dispute arose between the parties and the suit notice came to be issued. Hence, much reliance cannot be placed on those documents. That apart, to prove those documents, no witness has been examined.
11. Coming to Ex.B-8, it is a xerox copy of a Kist receipt. The first defendant would claim that for the faslis 1389 to 1392, he paid Kist. It is not known as to what happened to the original. In the absence of any explanation forthcoming from the first defendant, the xerox copy of the kist receipt, which has not been authenticated to be a true xerox copy, cannot be accepted and acted upon. That apart, this Court also finds that there is no seal of the Village Administrative Officer affixed therein.
12.Coming to Ex.B-10, it purports to be a lease deed executed by the defendants to one Gurusamy Gounder. The plaintiff would contend that she has not signed the said document. Strangely, the first defendant has not chosen to examine that Gurusamy Gounder, so also, the document was not sent to any Expert to compare the signature of the plaintiff with that of one that is found in Ex.B-10. It has also to be noted that the first defendant himself has admitted in his evidence that in the prior proceedings, he did not produce Ex.B-10. Hence, this document cannot be accepted and acted upon.
13.It has to be noted that apart from the first defendant, no witness has been examined on the defendants' side. This witness in his evidence has stated that there is no record to show that the plaintiff enjoyed the suit property only as the guardian of the minors. Even though there is a claim by the first defendant that he took possession in the year 1968, he has not produced any document to show that right from then, he has been in possession and enjoyment of the suit property.
14.In fact, the first defendant would also claim that prior to Ex.B-8 which is dated 05.12.1983, he paid Kist and he has in his possession a number of receipts with reference to the suit property. But however, the first defendant has not produced not even a single receipt between the period 1968 and 1983. Even though the first defendant, in the cross examination, informed the Court that he is willing to examine Ellammal, he has not done so. In fact, the first defendant would concede that the 2nd defendant is supporting the plaintiff. To conclude, this Court is inclined to point out that the oral and documentary evidence let in by the first defendant do not in any way substantiate his case.
15.The evidence let in by the plaintiff would clearly show that even after the defendants attained majority, it was the plaintiff, who continued to be in possession and enjoyment as the owner of the suit property.
16.This would clearly show that the document Ex.A.10 was not intended to be acted upon and in fact was not acted upon. Once this court comes to the conclusion necessarily it would follow that the plaintiff is the absolute owner of the properties. The two reasons given by the Courts below namely, failure on the part of the plaintiff to examine Ellammal and failure to prove that it was the plaintiff who paid the sale consideration in respect of the transactions Exs.A.1 and A.2 are totally erroneous for the reasons stated above.
The above discussion would answer the questions of law framed for consideration.
17. In this view of the matter, the judgment and decree of the Courts below are set aside. The second appeal is allowed. There will be a decree in favour of the plaintiff as prayed for. Consequently, the connected C.M.P. is closed. No costs.