Madras High Court
N.S. Spance vs D.S. Kanagarajan And T.A. Dhayavathi on 14 December, 2004
Equivalent citations: 2005(1)CTC494, (2005)1MLJ540
JUDGMENT M. Thanikachalam, J.
1. The plaintiff, unable to get a decree for declaration of his title to the suit property and for a permanent injunction, concurrently, before the Courts below, has preferred this Second Appeal.
2. The suit property originally belonged to one D.K. Srinivasa Chettiar, the father of the first defendant ancestrally. It seems, he had sold the suit property to the plaintiff's paternal uncle by name, N.A. Perianna Chettiar on 22.5.1960, for the valuable consideration stated therein. Perianna Chettiar and his brother, Subramania Chettiar's sons have partitioned their family properties in the year 1958 under a family arrangement. Thereafter, alone Perianna Chettiar had purchased the suit property, in which others have no interest. Since Perianna Chettiar had no male issues and the plaintiff was looking after the affairs of the family and helping Perianna Chettiar, Perianna Chettiar gave the suit property to the plaintiff, in or about the year 1970 and from the said date onwards, the plaintiff continued to be in possession of the suit property. The right vested in favour of the plaintiff by Perianna Chettiar was confirmed in the arrangment dated 30-10-1972. In pursuance of the above, mutation took place in the property register and connected records and on that basis also, the plaintiff was enjoying the property, paying tax, leasing out the same to third parties, to the knowledge of the first defendant, who is adjacent owner of the suit property. Thus the plaintiff has perfected title to the suit property by adverse possession, being in possession and enjoyment of the same well over the statutory period. The defendants, who have no right and who were never in possession of the suit property are attempting to take possession by illegal method, trespassing into the suit property, denying the title and to prevent the same, declaration and injunction are necessary. Thus, tracing the title to the suit property, fixing the cause of action for the suit, the appellant had filed the suit for the above said relief.
3. The first respondent-defendant in his written statement denying the averments in the plaint and disputing the sale deed said to have been executed by D.K. Srinivasa Chettiar contended, that the plaintiff was never in possession and enjoyment of the suit property, either on the basis of the sale deed dated 22.5.1960, in favour of Perianna Chettiar or on the basis of the alleged arrangement in his own right. Thus, disputing the possession, adverse possession claimed by the plaintiff was also denied. It is however, contended in the written statement that the first defendant had filed a partition suit including this property in O.S. No. 69 of 1968, on the file of Krishnagiri District Court impleading Perianna Chettiar also as the 16th defendant, in which, a preliminary decree has been passed on 10-8-1972, followed by a final decree proceedings pending. In view of the above fact, according to the defendants, the suit is barred by res judicata. The suit was also opposed on the ground of non-joinder of necessary parties, since according to the defendants, the plaintiff is not the legal heir of Periyanna Chettiar. Thus disputing the entire case, a prayer was made for the dismissal of the suit with exemplary costs.
4. The learned Subordinate Judge, Dharmapuri in his elaborate and detailed judgment running to 41 pages in the typed set, while evaluating the materials placed for appreciation, came to the conclusion, that the plaintiff has miserably failed in proving his title by adverse possession, though he was found to be in possession of the suit property. Thus concluding, further asserting, that the possession has not vested any title in favour of the plaintiff, extinguishing the title of the other side, the suit was dismissed on 21-10-1989, which was challenged before the District Court, Dharmapuri at Krishnagiri in A.S. No. 60 of 1989.
5. The learned District Judge, based on the submissions made by either counsel and upon going through the materials, as well as the lengthy judgment of the trial Court, felt no reason to interfere with the findings of the trial Court in all aspects. Thus, unable to deviate from the findings rendered by the trial Court, the learned Judge dismissed the appeal, confirming the decree and judgment of the trial Court on 2-9-1992, which is under challenge in this Second Appeal.
6. This Court, while admitting the Second Appeal, had formulated the following substantial questions of law for consideration:
i) Whether the Courts below are right in invalidating Ex.A11 which is a Deed of family arrangement executed in response to the pious obligation under Hindu Law for want of registration?
ii) Whether the Courts below are right in dismissing the suit in its entirety even though having held that the 1st respondent is entitled only to half share of the suit property in view of Ex.B2?
7. In addition to the above substantial questions of law framed, while submitting the arguments before me, the main thrust of the learned counsel for the appellant was 'claim of adverse possession'. Since it is a mixed question of fact and law, in addition to the above substantial questions of law, it is to be seen further in this case, whether the Courts below are justified in negativing the claim of adverse possession, though the possession was found with the plaintiff throughout. In this way, arguments were heard elaborately on this substantial question of law also, since it cannot be said, adverse possession is only a question of fact, ignoring the law.
8. Heard the learned counsel for the appellant, Mr. V. Ayyadurai and the learned counsel for the respondents, Mr. V. Natarajan.
9. An extent of 60 ft South-North and 20 ft East-West, a site and a garage, measuring 16ft X 12 ft situated at Vellegoundanpalayam village, Dharmapuri Municipal Town was the subject matter between the parties elsewhere from the year 1968. Though more than three decades over, the litigation has not come to an end and it appears a perennial litigation. To decide the real dispute between the parties, it should be necessary to remember certain uncontroversial facts.
10. It is not in dispute that the suit property originally belonged to one D.K. Sreenivasa Chettiar, the father of the defendants ancestrally. It appears, Srinivasa Chettiar sold the suit property in favour of one N.A. Perianna Chettiar, under whom the plaintiff-appellant claimed title originally and subsequently on the basis of the adverse possession. The first defendant questioning the alienations made by the father including the suit property, has filed a suit for partition in O.S. No. 69/1968, in which, Perianna Chettiar was shown as the 16th defendant and this property was shown as Item No. 7B in B schedule therein. After contest, a preliminary decree for partition has been passed in that case on 10.8.1972. It seems, though a preliminary decree has been passed on 10.8.1972, till this date, as submitted before me, no final decree has been passed and possession of the suit property has not been taken by the first defendant. The first defendant as D.W.1 claims that a petition was filed for final decree proceedings elsewhere in the year 1985 and the same is pending as I.A. No. 13/85 on the file of the Sub Court, Krishnagiri. Though a feeble attempt was made on behalf of the appellant to say, that no final decree proceedings has been initiated, in pursuance of the preliminary decree, I find no substance, in view of the fact that the evidence adduced through D.W.1, which is not challenged effectively also. Thus it is clear, as recorded by the courts below also, in pursuance of the preliminary decree, if at all an application has been made for passing final decree and as such final decree has not been passed, possession of the plaintiff is not disturbed.
11. The trial Court, while evaluating the documentary as well as the oral evidence, came to the conclusion, that Ex.A1 viz., the sale deed executed by Srinivasa Chettiar in favour of Periyanna Chettiar is not true and valid, in respect of the half share belonging to the first defendant, that the family arrangement said to have been effected by Perianna Chettiar under Ex.A11 is not valid under law, the further fact being, the execution of the same was not proved, that the suit is barred by res judicata, as far as the share of the first defendant is concerned, in view of the fact in O.S. No. 69/68, the right of the first defendant has been declared, that the defendants have failed to prove their possession of the suit property, whereas the plaintiff has proved the possession with him and with Perianna Chettiar from the date of Ex.A1 viz., 22.5.1960, that despite the fact, that the possession is with the plaintiff, for the long period, he failed to prove his adverse possession and that in the absence of proof of tile to the entire extent, though Perianna Chettiar was entitled to half share in the suit property, the plaintiff is neither entitled to declaration nor injunction. In this view, the entire suit has been dismissed, which was challenged in A.S. No. 60/1989. Unfortunately, I should say from the reading of the judgments rendered by both the courts below, that both the Courts below failed to consider the scope of the suit and negatived the right of the plaintiff, which he is entitled to, even by moulding the relief to certain extent, which is within the power of the Court. Though the courts below have found that Perianna Chettiar's right, for half share in the suit property cannot be denied, since the first defendant is entitled to only share, in pursuance of the preliminary decree, failed to grant any relief to the plaintiff or failed even to direct the plaintiff to carve out his possession from the suit property, granting injunction till such time to the above said extent, in view of the established as well as proved fact of possesssion. The first appellate Court, thus failing to discharge its duty properly, confirming the decree and judgment of the trial Court, dismissed the appeal, thereby giving cause of action, for the plaintiff once again, to prefer an appeal i.e. before this Court.
12. The learned counsel, Mr. V. Ayyadurai appearing for the plaintiff/appellant submitted, that the plaintiff is entitled to a decree, as prayed for or at least for share, in view of the admitted possession, which both the courts have recorded, which should be construed as adverse possession, which had extinguished the title of the first defendant if any, conferred the title upon the plaintiff. The second submission of the learned counsel for the appellant is, that in the previous suit, the sale in favour of Perianna Chettiar was held to be invalid only in respect of half share, and therefore, for the remaining share, at least the plaintiff is entitled to a decree on the basis of the arrangement made by Perianna Chettiar.
13. The learned counsel for the defendants/respondents submitted, that though both the courts below have recorded a finding in favour of the plaintiff regarding possession, that possession alone is insufficient to conclude, that he had prescribed title to the suit property by adverse possession, which was rightly concluded by the courts below, not liable to be disturbed. It is the further submission of the learned counsel for the respondents/defendants, that the plaintiff is not entitled to the alternative plea made now viz., share, since he is not the legal heir of Perianna Chettiar and in view of the further fact, that Ex.A11 cannot confer any right in favour of the plaintiff, since the same is not proved, even if proved invalid for want of registration and stamp duty. Thus, supporting the reasonings assigned by the courts below in favour of the defendants, the learned counsel for the respondents submitted, that the appeal is liable to be dismissed.
14. The trial Court has given a categoric finding on Issue No. 3, that the defendants were not in possession and enjoyment of the suit property from the date of Ex.A1. Ex.A1 is the sale deed executed by the first defendant's father, in favour of Perianna Chettiar on 22.5.1960. It is further held by the trial Court, that the suit property is in the possession and enjoyment of the plaintiff. Thus, a reading of paragraph-17 of the trial Court's judgment, which was confirmed by the first appellate Court, makes it crystal clear, that the defendants are out of possession of the suit property on and from 22.5.1960. Assuming that the possession from 22.5.1960 is traceable, only to Perianna Chettiar, which may not be available for the plaintiff, to claim adverse possession, the possession of the plaintiff himself is recognised by the courts below from the year 1970. Under Issue No. 5, in paragraph-18, the trial Court has given a categorical finding, that the plaintiff was in possession and enjoyment of the property well over 12 for years, prior to the filing of the suit, further giving finding that the defendants are out of possession well over for 12 years. While discussing the possession, leasing out the suit property by the plaintiff, transfer of property register, payment of tax were taken into account and to crown all, the first defendant, who is residing adjacent to the suit property, has not objected or taken any steps to disturb the possession of the plaintiff has also been taken into account. This finding was absolutely accepted by the first appellate Court also, thereby giving a fullstop regarding the possession, which should be confirmed by this Court, that the plaintiff was and is in possession and enjoyment of the suit property over the statutory period prior to the filing of the suit. The finding rendered by the courts below regarding possession is not challenged either by preferring an appeal or by preferring any cross objection or by even making any submission before me in this appeal.
15. The possession recorded by the courts below is purely a question of fact, which cannot be reassessed, in order to reach different conclusion. The possession so established would confer title or not, in favour of the plaintiff is a question of law, which could be decided as adverted hereinbefore, but not the finding regarding the possession. Thus, it should be concluded affirmatively and unhesitatingly that the plaintiff and his predecessors in interest viz., Perianna Chettiar have been in possession and enjoyment of the suit property continuously without any interuption and disturbance from the year 1960. Therefore, the only question remains for consideration is, whether such possession would confer title upon the plaintiff, extinguishing the title of the first defendant, which was recognised by the Court in O.S. No. 69/68, which remains only as a preliminary decree, not disturbing the possession. If possession had been taken in pursuance of the preliminary decree and final decree if any, the matter would be different and this is not available in this case. In this view, it should be held, irrespective of the preliminary decree passed by the Court, with regard to the suit property also, the possession continues to be with the plaintiff. Thus, settling the uninterrupted possession, as recorded by the courts below, well over for 12 years, we have to see what is the effect, which must be the substantial question of law. If the possession in favour of the plaintiff is not proved or the courts below have not recorded more than 12 years possession in favour of the plaintiff, then it could be said there is no question of law, much less substantial question of law, since adverse possession should be bssed on the finding of the continuous possession. Here continuous possession is established and that is why I said that substantial question has arisen in this case, though it was not so formulated, while admitting the appeal.
16. A possession based upon trespass is an offence at its origin. But that possession, if not disturbed, allowed to continue well over the statutory period viz., more than 12 years, it confers right to such property, upon the person, who had committed trespass. Thus, a trespasser, as well as a person who takes a property by forcible possession and continue to enjoy the same uninterruptedly for more than 12 years, his right is recognised under law, extinguishing the title of the original owner, subject to certain conditions. The law is well settled and it may be unnecessary to quote any judicial precedent also, that in order to perfect title by adverse possession, the ingredients required, which are inseparable are; corpus possidendi and animus possidendi i.e the physical possession on the one hand and the intention to exclude the real owner if any from possession, without concealment, with adequate continuity upon enjoyment. In this view, it is said, mere possession alone will not constitute adverse possession, unless it is accompanied by open assertion of hostile title.
17. It is the trite law, that the burden to establish the continuous possession and the right claimed on that basis viz., adverse possession rest upon the person, who claims so, in this case viz., the appellant/plaintiff. The plaintiff has elaborately pleaded possession continuously, openly without concealment and he has established that continuous, open possession also, that too, to the knowledge of the first defendant, who is admittedly residing near the suit property. In this case, it is not the case of the first defendant, that the plaintiff's possession of the suit property is traceable to legal origin from the origin, such as permissive possession, licensee or lessee and such persons alone are not entitled to claim hostile possession, adverse to the real owner, without surrendering possession or something like that. The fact that the plaintiff and Perianna Chettiar were in possession and enjoyment of the suit property openly in their own right, with an animus to enjoy the property, as their own, must have been known to the first defendant, which could be very easily inferred in this case, because of the admitted legal proceedings between the parties. The first defendant knew that Perianna Chettiar had purchased the property and that is why he had filed the suit including the suit property elsewhere in the year 1968, for partition and separate possession. It is also known to the first defendant, that the court had declared that the sale in favour of Perianna Chettiar viz., Ex.A1 is not valid to the entire extent and if at all it could be valid to the extent of half share, belonging to Srinivasa Chettiar. It is also made known to the first defendant in that suit itself, that Perianna Chettiar was in possession and enjoyment of the property from the year 1960. That is why a finding is given by the trial Court, that from the date of Ex.A1, the defendants are out of possession, thereby saying the plaintiff is in possession and enjoyment of the suit property. Despite the fact, the plaintiff is enjoying the suit property against the interest of the original owner viz., the first defendant, whether it is half share or to the entire extent, the first defendant has not taken any effective steps to oust the plaintiff from the suit property. As mentioned supra, though a preliminary decree had been passed in the year 1972, though three decades over, a final decree has not been obtained, possession has not been taken. The fact, that a suit has been filed for parition, would not have the power of stopping the period of limitation, which would erode the right of the original owner. In this case, the adverse possession had already commenced and it could not be stopped or prevented by mere filing of a suit subsequently. It is also not the case of the learned counsel for the respondents before me, that the filing of O.S. No. 69/68 or the pendency of the final decree proceedings, in pursuance of the preliminary decree proceedings, is capable of stopping the period of limitation, thereby curtailing the right of the plaintiff to snap the continuity of the possession, thereby disentitling him to claim adverse possession, on the basis of the continuity. It is also not the case of the learned counsel for the respondents before me, that the defendants should be construed as co-owners, in view of the fact, that the plaintiff had obtained a preliminary decree, in respect of share in the suit property. This kind of question does not arise in this case, on the basis of the admitted position and therefore, the possession of the plaintiff cannot be deemed to be the possession of the defendants also, treating the two as co-owners, thereby stopping conferment of title under adverse possession.
18. The plaintiff is not the legal heir of Perianna Chettiar, admittedly. It is not the case of the plaintiff also in this case, that he is entitled to suceed to the estate of Perianna Chettiar on his death, since he died intestate, or something like that. The plaintiff claimed title to the suit property on the basis of some arrangement, under which it is said that Perianna Chettiar gave the suit property to the plaintiff. Only to establish this fact, if it is true, much reliance was placed before the courts below upon Ex.A11, labeling the same, as family arrangement. This document is an unregistered one, touching immovable property, having more than Rs. 100/- in value, thereby requiring stamp duty and compulsory registration. Considering these facts and the failue of the plaintiff to prove its execution, both the courts below have rejected Ex.A11 and therefore, it is not open to the plaintiff to claim any right in the suit property under Ex.A11 and on that basis, it is not possible to say, that the plaintiff may be the co-owner along with the first defendant, since Perianna Chettiar, who had executed Ex.A11 had purchased the property under Ex.A1 from the father of the first defendant. In this view, co-owner theory also may not be applicable to this case and in fact, none claimed this right also. Thus, settling the position that the possession of the suit property by the plaintiff is not at all traceable to any permissive possession or possession on behalf of the defendant, it should be seen whether such possession is capable of conferring title upon the plaintiff, extinguishing the title even in respect of share, regarding the suit property, which has been declared in O.S. No. 69/68.
19. In the plaint, the plaintiff claimed title to the suit property not only on the basis of the document dated 30.10.1972 (A.11), but also on the basis of adverse possession. The learned counsel for the respondents submitted, that a person, who claimed title in himself, under a document cannot claim adverse possession also, since both the pleas are insconsistent, which will prove the absence of animus to enjoy the property, hostile to the true owner.
20. As an answer to the above said contention, the learned counsel for the appellant relying upon a decision of the Division Bench of the Karnataka High Court in Karnataka Wakf Board v. State of Karnataka (AIR 1996 Karnataka 55) contended that this kind of plea cannot be described as inconsistent and the same is available to a party. In the case involved in the above decision, the plaintiff therein has taken up an alternative plea, as if he had perfected his title to the suit property by adverse possession. While considering, whether such a plea is available or not, the division bench has ruled:
"The plaintiff has taken an alternative plea that it has perfected its title to the suit property by adverse possession also. In the appeal memo, in para 10 at page No. 7, it is contended that the said plea is inconsistent with the plea of title under Issue No. 1. It is not possible to accept this contention. It is well settled that the plaintiff can take an alternative plea. The plea regarding title and the plea of adverse possession pleaded by the plaintiff in this case, cannot be said to be inconsistent with one another.
21. In Anjanabai v. Jaswantibai , a Division Bench of Bomay High Court at Nagpur, has taken the view that the purchaser, who was in possession of the property from the date of the sale deed and who was later dispossessed, is entitled to claim adverse possession, since on the date of dispossession itself, he had perfected his title by adverse possession. It is held the person who was in possession of the earlier sale deed could prescribe title to the suit property by adverse possession and such possession should be recognised.
22. In A. Krishnappa v. Thimmrayappa (AIR 2001 Karnataka 470) it is held as follows, which view is agreeable to me:
"In view of the Ruling of the Division Bench of this Court, it is well within the right of the party in a suit to set up title on one part and also can take up plea of adverse possession in alternative. Both the pleas are held to be alternative and permissible"
23. The Hon'ble Supreme Court in Rame Gowda v. M. Varadappa Naidu , has held that the person, who failed in proving his title to the suit property, can succeeded in securing a decree for possession on the basis of his prior possession and the relevant portion reads:
"A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from using force or taking the law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force. In the absence of proof of better title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or causal in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner."
thereby indicating that a peaceful possession of a person is to be protected and his possession cannot be disturbed even by the original owner unlawfully, unless the original owner shows he has right to evict the person, who is in possession of the property, establishing that his possession is permissive or it has not conferred any title. In the case on hand, the possession of the suit property by the plaintiff from the year 1970 is well made out, ignoring the previous possession and such possession has given absolute right over the suit property, since the same was hostile, notorious, open with animus. that too to the knowledge of the first defendant.
24. The submission of the learned counsel for the respondents, that mere possession alone is not sufficient to claim title by way of adverse possession, in this case, is not acceptable to me, since the possession of the plaintiff here cannot be described as mere possession, without exercising the right of the ownership. It is not only admitted, but also established by evidence that the plaintiff had leased the suit property, collected rent, transferred the property registered in his name and denied the title of the defendant also, when it was challenged. It is unnecessary, that the person, who is enjoying the property should inform to the real owner, that he is enjoying the property adversely against the true owner in categorical term. If it could be inferred from the attending circumstances, that to the knowledge of the owner, the person is enjoying the property, which was not disturbed, that itself is sufficient to conclude, that to the knowledge of the original owner, here the plaintiff is enjoying the property, thereby it should give and confer title upon the suit property in favour of the plaintiff. In otherwords, it had extinguished the title to the first respondent in respect of share.
25. As submitted by the learned counsel for the respondents, it is for the person, who claims adverse possession, to prove that his possession had became adverse to the real owner, as held in Naran Behera v. Mohan Jethi and mere possession over a statutory period is not sufficient to succeed in the plea of adverse possession, unless it is accompanied by adverse animus as held in Venkatachalaiah v. Nanjundaiah (AIR 1992 Karnataka 270). It is also held in the above decision that the alternative plea of adverse possession set up by the plaintiff cannot, therefore, be accepted, which does not mean that alternative plea is not permissible, since adverse animus has not been established in that case. The above decision may not come to the aid of the defendant in this case, in view of the hostile possession established, that too to the knowledge of the first defendant. The contention of the learned counsel for the respondents, that the possession must be without title against a person with original title and then only adverse possession would airse, is not acceptable, since a person, who is in possession of the property, is entitled to take alternative plea, as pointed out supra.
26. The oral evidence of P.W.1 and the documents produced on his behalf coupled with the knowledge of the first defendant, that the possession of the plaintiff is against his interest and his inaction in not recovering the property within the period of limitation are all proof sufficient to conclude unhestatingly, that the plaintiff had prescribed title to the suit property, by adverse possession, ignoring Ex.A11, which was not properly considered by the courts below, though they have given finding in favour of the plaintiff, regarding possession well over the statutory priod.
27. Reliance has been placed in Ammena Ammal v. Jahabar Nachiar and Ors. (2002-1-L.W.661), Nagarajan v. Rajamani Aiyar (1999 (I) CTC 928) and number of previous decisions to constitute adverse possession as per the legal maxim i.e. the possession has to be open, hostile and as a matter of right. In this case, the essential ingredients viz., there should be corpus and animus ie. Physical possession and intention to possess are all well established. Though the conditions necessary to constitute adverse possession in this case are positively and negatively established, unfortunately, both the courts below have not properly assessed the same. Though the trial Court has stated, what are all the ingredients required for adverse possession, it failed to follow the same, when it was established, merely saying that the plaintiff has failed to prove the hostile possession with animus to enjoy the same etc. Here, whether it is on the basis of the title deed or otherwise, asserting that the plaintiff should enjoy the property in his own right, he had leased out the property, collected the rent, paid property tax etc. and these are all the assertions with animus to enjoy the property and ignoring the same, as if no case is made out; is not possible. Since both the courts below have failed to appreciate these legal aspects, which is based on the proved position, I am constrained to interfere with the findings of the trial Court, though it is concurrent, concluding that the plaintiff has proved his title to the suit property by adverse possession, which is to be declared, granting injunction also.
28. The learned counsel for the appellant as an alternative plea submitted, that even assuming that the plaintiff has not prescribed title to the suit property by adverse possession to the entire extent, his right for half share and injunction to the entire extent, should be declared and granted. In view of my previous finding regarding adverse possession, this question does not arise for consideration. However, this alternative relief claimed by the plaintiff in this case, may not be available, if adverse possession is negatived. A person's possession is not entitled to be protected under law, if it is shown, not legal. If the adverse possession is negatived, then the possession of the plaintiff should be construed as illegal possession against the true owner and in this view, injunction cannot be granted in respect of the entire extent. As far as the half share claimed as alternative relief is also concerned, the same may not be available to the plaintiff, since he is not the legal heir of Perianna Chettiar and in view of the further fact, Ex.A11 is invalid as held by the courts below, which is also not challenged. In this view, the alternative relief claimed is not available and this is answered only to have fullness in this case. For the foregoings reason, the appeal deserves acceptance and the same is to be allowed.
In the result, the appeal is allowed setting aside the decree and judgment of the courts below and the suit is decreed as prayed for, but considering the facts and circumstances of the case, without costs throughout. C.M.P. No. 14201 of 1993 is closed. C.M.P. No. 14201/1993 is closed.