Madras High Court
Sakunthalammal(Died) vs T.G.Rajabathar(Died) on 17 September, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.9.2012
C O R A M
THE HONOURABLE MR.JUSTICE G.RAJASURIA
A.S.No.67 of 1984
1.Sakunthalammal(died)
2.Ravakannu
3.Bhuvaneswari
4.Palanivelu
5.Subramaniam(deceased)
6.Kannayiram
7.Mrs.K.Vijayalakshmi .. Appellants
Appellants 6 and 7 have been
brought on record as Lrs of
the deceased the deceased 1st appellant
as per order of Court dated
5.9.2001 in C.M.Ps.10460 to
10462 of 2001 by KSJ.
vs.
1.T.G.Rajabathar(died)
2.Saradambal(died)
3.Kalyani(died)
4.Radhabai(died)
5.Sathyalakshmi
Respondents 3 and 5 recorded
as Lrs of the deceased
RR2 and 4 respectively
as per order in C.M.P.
No.16347/91 dated
30.1.1992
6.Dayanidhi(died)
7.Changalvarayan
8.Mareesan
9.V.Thanikachalam(died)
10.Gajalakshmiammal
11.Abdulrehman alias Abdulrahaman
12.Abdul Rahim
13.Latifa Begum
14.T.Sakunthala
15.T.Gunasekaran
16.S.Kalavathi
17.T.Mohanraj
18.G.Sathiavani
19.T.Kaliselvi
20.Minor Anbazhagan
rep.by guardian mother
T.Sakunthala
Respondents 14 to 20 brought
on record as the legal representatives
of the deceased 9th respondent
as per order of Court dated 9.1.84
in C.M.P.No.14769 of 1982
R14 Sakunthala appointed as
the guardian for minor 20th
respondent as per order of
Court dated 9.1...in C.M.P.No.14770
21.S.Govindaraj
R21 brought on record as
proposed respondent
as per order of Court
dated 15.3.1999 made in
C.M.P.No.16430/91
22.D.Kumaravelu
23.D.Vijayakumar
R22 and R23 have
been brought on record as
Lrs of the deceased 6th
respondent as per
order of Court dated
10.7.2001 in C.M.P.No.6146/98
by VKJ .. Respondents
Appeal filed as against the judgement and decree dated 2.1.1980 passed by the 5th Assistant Judge, City Civil Court, Madras, in O.S.No.2733 of 1965.
For Appellants : Mr.N.S.Varathachari
For respondents : Mr.S.Thiruvenkatasamy for R21
No appearance for R12to R14
JUDGMENT
This appeal is focussed at the instance of the plaintiffs as against the judgment and decree dated 2.1.1980 passed by the 5th Assistant Judge, City Civil Court, Masdras, in O.S.No.2733 of 1965, which is one for declaration and permanent injunction.
2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the germane facts absolutely necessary for the disposal of this appeal would run thus:
a) The plaintiffs/appellants herein filed the suit seeking the following reliefs:
To pass a decree in favour of the plaintiffs and as against the defendants
(a) declaring that the sale deed dated 25.7.1937 is not valid and binding on the plaintiffs and for a permanent injunction restraining the defendants 4 to 8 from dealing with the property altering its status-quo to the detriment of the plaintiffs vested rights in the property covered by the sale deed (item No.2 in the plaint schedule)
(b) That the sale deed dated 27.8.1943 is not valid and binding on the plaintiffs and for a permanent injunction restraining the 9th defendant from in any way dealing with the property and alter its status-quo to the detriment of the plaintiffs vested right in the property covered by sale deed viz., item No.4 in the plaint schedule.
(c) That the sale deed dated 7.5.1965 and 14.5.1965 are not valid and binding on the plaintiffs and for a permanent injunction restraining the defendants 10 and 11 from in any way dealing with the property and altering the status-quo relating to the property covered by the sale deed viz., item No.5 in the plaint schedule.
(d) For such other or further reliefs that may deed fit and proper to this Honourable Court in the circumstances of the case
(e) For cost of the suit against all the defendants.
(f) that the plaintiffs are entitled to a declaration that the first defendant is entitled to a life-interest in the sum of Rs.18,21,121.50 being the proportionate compensation awarded and deposited into Court in L.A.C.No.223/1965, City Civil Court, Madras, for the portion in R.S.No.779/2 under the settlement deed dated 7.6.1927."
(extracted as such)
b) D1 filed the written statement explaining and expounding the facts involved in this case, as he happened to be the father of the plaintiffs.
c) D2's written statement was adopted by D3 and they also filed the additional written statement. D4 to D8 filed a separate written statement. D10 and D11 filed written statements and D12 filed one other written statement, which was adopted by D13 and D14.
d) The trial court framed the relevant issues.
e] During trial, the second plaintiff examined herself as PW1 along with PW2 and marked Exs.A1 to A28. On the defendants' side, the first, third, tenth and sixth defendants, namely, Rajabather Mudaliar, Kalyani Ammal, V.Thanikachalam and T.B.Dayanidhi examined themselves as D.W.1, D.W.3, D.W.5 and D.W.6 respectively, along with D.W.2 and D.W.4 and marked Ex.B1 to B79.
f) Ultimately, the trial court dismissed the suit.
4. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the plaintiffs preferred this appeal on various grounds.
5. The gist and kernel, the pith and marrow of the case of the plaintiffs could be set out as follows, for the disposal of this appeal.
(i) The suit properties originally belonged to one Manicka Mudaliar. His wife was Manonmani Ammal. The couple had no children. In fact, Manicka Mudaliar intended to adopt one Kannappan.
In the meanwhile, he, out of love and affection for his sister's son, namely, Rajabathar-D1 herein, executed a settled deed Ex.A1 dated 7.6.1927 settling the following properties, including items 2 and 4 of the suit properties as under:
VERNACULAR (TAMIL) PORTION DELETED for D1's life and thereafter to his children on their attaining majority. No doubt, as on the date of the settlement deed, the said Rajabather was a minor. According to the plaintiffs, the said settlement deed was acted upon and the properties stood vested in Rajabather.
(ii) Rajabather, after his marriage, gave birth to as many as five children, who are the plaintiffs herein.
(iii) While so, the said Manicka Mudaliar, without having any regard to the implications of law, simply executed a sale deed-Ex.B14 dated 25.7.1937 in favour of one Navaneethammal in respect of item No.2 of the suit properties, which is one of the subject matters of the present appeal.
(iv) Rajabather signed the sale deed-Ex.B14 as a witness. The said Navaneethammal died leaving behind her legal heirs D4 to D8, who partitioned the property among themselves and in that, item No.2 was allotted to the share of one Sambamoorthy-the father of D5.
(v) The said Sambamoorthy died leaving behind his wife-Radhabai/D4 and his daughter Sathyalakshmi-D5 as his legal heirs.
(vi) Navaneethammal died on 24.12.1963. In a family partition entered into between the legal heirs of Balasundra Mudaliar and Navaneethammal their eldest son B.Sambamoorthy was allotted this item No.2 of the property. Sambamurthy and his wife Radha Bai (D4) died, leaving behind them D5-Sathya Lakshmi and Mohana Krishnan.
(vii) D5 and her son, pendenti lite executed the sale deed dated 27.3.1991 in favour of R21 herein/Govindarajan, transferring the item No.2 of the suit properties.
(viii) D6 to D8 are the children of D3.
(ix) In respect of Item Nos.1,3,5 & 6, a compromise decree was passed on 12.2.2002. Now the present appeal is pending, concerning the item Nos.2 and 4 of the suit properties only.
(x) T.G.Rajabather Mudaliar sold Item No.4 of the plaint schedule property to Nazeer Hussain(D9). After the death of Nazir Hussain his legal heirs have been added as defendants 12 to 14 and respondents 11 to 13 in the above appeal.
(xi) Precisely the plaintiffs would contend that all those transactions, referred to supra emerged at the instance of Manicka Mudaliar after he having executed the settlement deed of the year 1927(Ex.A1), are invalid and those transactions would not confer any right on the transferees concerned.
(xii) D1-Rajabather had no right at all to relinquish the right which got vested on the plaintiffs as per the settlement deed Ex.A1 dated 7.6.1927. wherefore the plaintiffs have filed the suit with the aforesaid reliefs by way of asserting their right.
6. D1-Rajabather-the father of the plaintiffs filed the written statement almost admitting the averments in the plaint.
7. The pith and marrow of the written statement filed by D4 to D8 would run thus:
(i) The sale deed Ex.A27 (Ex.B14) dated 25.7.1937 is valid in all aspects for the reason that Ex.A1-the settlement deed of the year 1927 was not acted upon.
(ii) The settlement deed was not accepted by Rajabather, who was a minor at that time. No delivery of the properties was executed in favour of D1. The said Rajabather himself attested in Ex.A27-the sale deed dated 25.7.1937 as a witness, thereby signifying his consent and assent for Manicka Mudaliar-the original owner to execute such a sale deed. Wherefore, the plaintiffs, who are the heirs of D1 cannot dispute the same. Unless Rajabather got the property legally from Manicka Mudaliar, the question of the unborn children, at the relevant time of the emergence of Ex.A1-the settlement deed, getting any vested right would be a well-nigh impossibility.
(iii) Once the property did not get vested in the life estate holder, namely, Rajabather, the question of Rajabather getting the property vested in him and thereafter passing it on to his unborn children at a later time would not arise at all.
(iv) The suit is nothing but a litigation engineered and galvanied by D1 himself by instigating his children to file the same, so as to falsify the interest of the defendants, who acquired legitimate right over the suit property directly from the original owner-Manicka Mudaliar.
(v) After Ex.A27, the transferees concerned also acquired title by adverse possession.
(vi) The suit was barred by limitation.
Accordingly, D4 to D8 would pray for the dismissal of the suit.
8. The learned Senior counsel for the appellants/plaintiffs would put forth and set forth his arguements, placing reliance on the grounds of appeal, which could succinctly and precisely be set out thus:
(i) Ex.A1-the settlement deed dated 7.6.1927 came into effect as on the date of execution of the said deed itself and there is ample evidence to show that Ex.A1 was acted upon.
(ii) Subsequent to the emergence of Ex.A1 there arose a litigation in O.S.No.60 of 1931 initiated by a third party, on the file of the District Munsif Court, poonamallee, wherein the said settlement deed was marked as an exhibit and the said Manicka Mudaliar filed the written statement to the effect that item No.2 of the suit properties herein was not available with him, as he already executed the settlement deed as per Ex.A1 herein in favour of Rajabather and that possession of it also was only with Rajabather.
(iii) Having chosen to categorically state so in the litigation in O.S.No.60 of 1931, it would not be open for Manicka Mudaliar himself to veer round by having a volte face and execute Ex.A27-the sale deed dated 25.7.1937 and sell the properties, including item No.2, in favour of Navaneethammal. As such, Navaneethammal can never be taken as a person, who got valid title under Ex.A27 because Manicka Mudaliar himself, at the relevant point of time of emergence of Ex.A7 had no title over the property, because he got his title divested by virtue of he having executed Ex.A1-the settlement deed in favour of D1and that was vouched by his written statement filed in O.S.No.60 of 1931.
(iv) The lower Court, without understanding the legal implications involved in this case simply held as though Ex.A1-the settlement deed was not acted upon.
(v) The law is well settled that there need not be any express written acceptance of any donation or settlement, and it could be accepted by implication.
(vi) In this case, virtually it happened so that by implication, Rajabather accepted the settlement-Ex.A1 and it was acted upon. During the life time of Rajabather, his children had no immediate right to possession even though they happened to be the vested remainders of item No.2.
(ix) The suit cannot be labelled as a premature one or it is bad for want of prayers for comprehensive reliefs, including possession. Only on the death of Rajabather, the plaintiffs being the children of Rajabather, as absolute remainders would have the right to seek for possession. In order to assert their right and to prevent further complications alone, even during the life time of Rajabather, the suit has been filed by the plaintiffs.
Accordingly, the learned Senior counsel for the plaintiffs would pray for setting aside the judgement and decree of the lower Court and for decreeing the suit.
9. Per contra, in a bid to torpedo and pulverise the arguements as put forth and set forth on the side of the appellants/plaintiffs, the learned counsel for R21 herein/Govindaraj, so to say, the purchaser of item No.2, pending appeal, from D5 and her son, would pyramid his arguements, the warp and woof of them would run thus:
(i) There should be acceptance of a gift/settlement. Indubitably and indisputably as on the date of emergence of Ex.A1-the settlement deed, Rajabather was only a minor and in such a case, there should have been somebody to accept the donation on behalf of the minor, even though the said minor might have been under the tutelage and custody of Manicka Mudaliar.
(ii) Simply because in the written statement filed by Manicka Mudaliar in O.S.No.60 of 1931 there was some reference to Ex.A1-the settlement deed, that it does not mean that Manicka Mudaliar was estopped from executing Ex.A27-the sale deed.
(iii) The law has got well settled that once a donation or settlement has not come into vogue then the donor is deemed to continue to be the owner of the property concerned, and he can deal with it in any manner without the intervention of Court.
(iv) Rajabather at the time of attesting Ex.A27 the sale deed was a major. He knew the contents of Ex.A27 and he attested it by way of signifying his assent and consent to such sale and thereby the life estate holder under Ex.A1 unambiguously and unequivocally expressed that the property did not get vested him, so as to pass on that vesting in favour of the absolute remainder.
(v) The alleged absolute remainders, namely, the plaintiffs herein cannot, in the absenceh of Rajabather try to claim any right over the property, as whatever right they could claim, they could claim only through Rajabather.
(vi) Admittedly as on the date of emergence of Ex.A1-the settlement deed, the plaintiffs were not born. Hence, unless the alleged life estate holder is proved to have got the property from manicka Mudaliar under Ex.A1, the question of the plaintiffs claiming right over it would be a well-neigh impossibility.
(vii) The Court below understanding the above said legal principle, dismissed the suit. 'Witnesses might lie, but the circumstances would not lie' and accordingly if viewed it is pellucidly and palpably clear that D1 alone galvanized his children-the plaintiffs to file the suit.
(viii) If really D1 was genuine in his approach, there is nothing to indicate as to why he had not taken any steps as against the alienations made by Manicka Mudaliar in favour of Navaneedhammal.
(ix) The present suit was filed only in the year 1965, whereas Ex.A27 emerged during the year 1937. The plaintiffs were born on 23.10.1933, 12.8.1937, 15.5.1944, 21.4.1948 and 4.8.1950, respectively and as such, the suit itself is barred by limitation.
(x) The transferees under Ex.A27 and the deeds which emerged subsequently, became absolute owners by virtue of their adverse possession over the properties concerned.
Accordingly, the learned counsel for R21 herein would pray for the dismissal of the appeal confirming the judgement and decree of the trial Court.
10. The points for consideration are as under:
(i) Whether Ex.A1-the settlement deed dated 7.6.1927 was bad for want of acceptance by D1 or somebody on D1's behalf and for delivery of possession of the concerned items in favour of the settlee?
(ii) Whether attestation of Ex.A27-the sale deed dated 25.7.1937 by D1-Rajabather could be construed legally as his consent for such sale and also as though he expressed his intention that Ex.A1 was not acted upon?
(iii) What is the legal effect of Ex.B77-the written statement filed by Manicka Mudaliar in O.S.No.60 of 1931 in respect of Ex.A1-the settlement deed herein?
(iv) Whether D1-Rajabather had the legal capacity to validly execute Ex.A2-the sale deed dated 27.8.1943 transferring the 4th item of the suit properties in favour of the 9th defendant?
(v) Whether the suit was barred by limitation?
(vi) Whether the plea of adverse possession as put by D4 to D8 is tenable?
(vii) Whether the suit was bad for want of a prayer for possession and whether the suit was a pre-mature one?
(viii) Whether there is any perversity or illegality in the judgement of the trial Court?
IN RE ACCEPTANCE OF eX.A1 BY RAJABATHER AND DELIVERY OF POSSESSION OF THE PROPERTY THEREIN:
11. The bone of contention of R21 herein, the lis pendens purchaser of item No.2 of the suit properties is to the effect that Ex.A1-the settlement deed was not acted upon. However, the learned counsel for the plaintiffs would fittingly meet that point by citing the following decisions of the Honourable Apex Court:
2004(1) SUPREME COURT CASES 581 K.BALAKRISHNAN V. K.KAMALAM AND OTHERS, ecertain excerpts from it would run thus:
"28. . . . . . . .
When the gift of immovable property is not onerous, only slight evidence is sufficient for establishing the fact of acceptance by the donee. When it is shown that the donee had knowledge of the gift it is only normal to assume that the donee had accepted the gift because the acceptance would only promote his own interest. Mere silence may sometimes be indicative of acceptance provided it is shown that the donee knew about the gift. No express acceptance is necessary for completing a gift. Where the donors who were the real uncles of the donees stated in the deed of revocation that to allow the continued existence of the gift would endanger their future safety as the donees were not bestowing proper love and affection towards the donors which was expected by the donors from the donees as a recompense for the gift, that statement is a clear indication that the gift had been accepted by the donees.
29. In the instant case, non-mention of the fact of non-acceptance of the gift by the donee in the cancellation deed reinforces our inference that the donor mother herself, at the time of cancellation of the gift, never assumed that the gift was not accepted and therefore it is revocable.
30. As seen above, in the case of a minor donee receiving a gift from her parents, no express acceptance can be expected and is possible, and acceptance can be implied even by mere silence or such conduct of the minor donee and his other natural guardian as not to indicate any disapproval or repudiation of it. (See Shankuntala Devi v. Amar Devi ILR 1986 HP 109 and Narayani Bhanumathi v. Lalitha Bhai 1973 KLT 961)
31. In our considered opinion, therefore, the Trial Court and the High Court were wrong in coming to the conclusion that there was no valid acceptance of the gift by the minor donee. Consequently, conclusion has to follow that the gift having been duly accepted in law and thus being complete, it was irrevocable under Section 126 of the Transfer of Property Act. Section 126 prohibits revocation of a validly executed gift except in circumstances mentioned therein. The gift was executed in 1945. It remained in force for about 25 years during which time the donee had attained majority and had not repudiated the same. It was, therefore, not competent for the donor to have cancelled the gift and executed a Will in relation to the property." (emphasis supplied)
12. A plain reading of the aforesaid excerpts, including the entire judgement would display and demonstrate that to prove acceptance, there need not necessarily be any express written consent, and even by implication, acceptance could be understood and discerned. A minor cannot be expected to make any express acceptance. The Honourable Apex Court even went to the extent of observing and holding that acceptance can be implied even by mere silence; mere non disapproval or repudiation of the settlement would enure to the benefit of the donee/settlee.
13. At this juncture I recollect and call up the following maxims:
(i) 'Verba ita sunt intelligenda, ut res magis valeat quam pereat The words (of an instrument) are to be so understood, that the subject matter may rather be of force than perish [rather be preserved than destroyed; or, in other words, that the instrument may have effect, if possible]
(ii) 'Verba generalia generaliter sunt intelligenda General words are to be generally understood.
14. A document has to be read so as to validate it and not to invalidate it. A settlement deed executed by a person in favour of minor should be interpreted in such a manner not to invalidate it but to make it beneficial to the minor.
15. Here, the learned counsel for the plaintiffs would narrate and portray with reference to the evidence that the said Manicka Mudaliar did not execute Ex.A1-the settlement deed for name sake. It cannot be described as a 'namakavaste' document. It was a meaningful one for the reason that Manicka Mudaliar exemplified and expatiated his intention to adopt one Kannappan as his son and even before that, well in advance, for the purpose of making, the settlement in toto a legitimate one, executed the settlement deed-Ex.A1 in favour of his sister's son, namely, the then minor Rajabather-D1. He foreseeingly and precautiously mentioned that the obsequious ceremony should be performed for his wife-Manonmani, by Kannappan, whom he intended to adopt and the obsequious ceremony for the settlor should be performed by Rajabather-D1 herein; wherefore Ex.A1-the settlement deed cannot be said to be one not intended to be a serious and solemn document, but a name sake or nominal document.
16. Over and above that, a minor cannot be expected to accept expressly in writing the settlement. Rajabather admittedly was living with Manicka Mudaliar at the relevant time of emergence of Ex.A1-the settlement deed. My mind is reminiscent and redolent of the following maxim:
'Acta exteriora indicant interiora secreta' Outward acts indicate the thoughts hidden within.
17. Accordingly if viewed objectively the said Manicka Mudaliar expressed what was in his mind and also the real facts by filing written statement in O.S.No.60/31, an excerpt from the said written statement marked as Ex.B77 herein, would run thus:
"7/ ,e;jg; gpujpthjpf;F i& tPL ,g;nghJ brhe;jky;y/ 7/6/1927 nyna i& tPl;il ,e;jg; gpujpthjpfs; hp$p!;luhd jhdg;gj;jpu Kd;dpiyapy; xU uh$h ghjh KjypahUf;F rh;t brhe;jkha; bfhLj;Jtpl;lhh;/ i& tPL jw;fhyk; uh$hghjh KjypahUf;F brhe;jkha; i& ahh; RthjPd mDgtj;jpy; ,Ue;JtUfpwJ/ i& ahiu thjpfs; ,e;j jhthtpy; ghh;l;oahf nrh;f;fntQqk;/@ (emphasis supplied)
18. Accordingly it is clear that in a litigation initiated by a third party as against Manicka Mudaliar, the latter candidly and categorically, pulling no punches, asserted about the genuineness of Ex.A1-the settlement deed and also pointed out that Ex.A1-the settlement deed was acted upon and delivery of possession was given to D1, who thereby came into possession of it. Such an averment in the written statement by Manicka Mualiar himself before the Court cannot be pooh-poohed or belittled, slighted or discarded as a meaningless statement; but due importance should be given to such a statement.
19. At this juncture, I recollect the following maxims:
(i) Ex dolo malo non oritur actio Out of fraud no action arises; fraud never gives a right of action.
(ii)Ex turpi causa non oritur actio: Out of a base illegal, or immoral consideration, an action does not arise.
(iii) Ex maleficio non oritur contractus : A contract cannot arise from misconduct.
20. All these sister maxims would convey that if any agreement is contrary to law then it will not be recognised by Courts and with the help of the Court such agreements cannot be enforced.
21. The persons claiming under Manicka Mudaliar cannot place reliance only on Ex.A27-the sale deed dated 25.7.1937 and try to disown the liability under Ex.B77.
22. I would like to call up and remember the following maxims:
(i) Nul Prendra advantage de son tort demesne No one shall take advantage of his own wrong.
(ii) Nullus commodum capere potest de injuria sua propria No one can gain advantage by his own wrong.
23. A person cannot capitalize his own mistake or wrongful act. Here neither Manicka Mudaliar nor the transferees under Manicka Mudaliar can be allowed to plead before the Court that in the District Munsif Court, Poonamallee, in O.S.No.60 of 1931, Manicka Mudaliar committed perjury by filing such a written statement as in Ex.B77. As such, Manicka Mudaliar, who consciously pleaded in that suit initiated by a third party, relating to the validity of Ex.A1-the settlement deed even before the emergence of Ex.A27-the sale deed, cannot be allowed to have a about turn or a 'U' turn or volte face or turn turtle and plead as though such a version was uttered out to wriggle out of his liability in that suit. If such stands are accepted, then it would amount to enabling the parties to capitalize their own wrong doing, which is impermissible under law. As such, Ex.B77 should be given due weightage and that would enable the Court to hold that Ex.A1-the settlement deed was acted upon as per law by acceptance and by taking delivery of possession.
24. The learned counsel for R21 herein, by placing reliance on the attestation by D1-Rajabather in Ex.A27-the sale deed, would develop his arguement that D1, as a major and life estate holder under Ex.A1-the settlement deed, himself attested Ex.A27-the sale deed and thereby, he affirmed and confirmed, signified and indicated that he was not having any interest over the second item of the suit properties, but it was only Manicka Mudaliar, who retained ownership; however in a bid to demolish and torpedo such arguement, the learned counsel for the plaintiffs would cite the following decisions:
(i) 2003(1) CTC 745-K.A.SELVANACHI AND ANOTHER V. DR.S.R.SEKAR AND ANOTHER, certain excerpts from it would run thus:
"9. The learned single Judge placed reliance on the decision of a single Judge of this Court, Ismail,J., as he then was, in the case of Ramasamy Gounder v. Anantapadmanabha Iyer (1971-1-M.L.J.392), wherein the learned Judge referred to decisions rendered by learned single Judges in two old cases viz., Sathasiva Iyer,J. In Kandasamy v. Nagalinga (1912) I.L.R.36 Mad 564 and Narayana v. Rama I.L.R.(1915 38 Mad 396 and that of Kumaraswami Sastri,J. In the case of Nayakammal v. Munnaswamy Mudaliar (1924) 20 L.W.222. Sathasiva Iyer,J.in the case of Kandasamy referred to the "ordinary course of conduct of Indians in this presidency" and held that attestation must be treated prima facie as a representation by the attestor that the title and other facts relating to title recited in the document are true and that they will not be disputed. The learned judge also observed that in his long experience as judicial officer, if the attestor has an existing interest in the property dealt with in the document attestation was always made in order to bind him as to the correctness of the recitals. Kumaraswami Sastri,J., in the case of Nayakammal, observed that "it is the commonest thing in this country for attestations to be obtained from persons having a possible interest in the property with the object of binding them later on" and that "I have rarely come across a case where a person having and interest present or contingent has attested the deed without enquiring into its contents".
19. Those observations made by the learned judges cannot be treated as having laid down a proposition of law that all attestors of all documents must be imputed with knowledge of the contents thereof and even when such contents are adverse to the interest of the attestors so that the attestors are estoped from questioning the same solely by reason of the fact of their having attested the document. Observations based on personal perceptions and experience of individual Judges cannot be elevated to the status of Rules of law. Custom and usage are always a matter of evidence and strict proof.
11. Those observations are also clearly inconsistent with the law that had been laid down by the Privy Council in the case of Pandurang Krishnaji and cannot be regarded as having laid down such inconsistent law. Moreover, whatever may have been the practice in the year 1912 or 1924, the same cannot be regarded as the practice even eighty years later, when the awarness of the requirements of law is far greater than what it was eighty years ago. Further, on principle it is not possible to hold that attestation of a signature is to be deemed as acceptance of the contents of the document which has been executed by the signatory whose signature is attested by the attestor. There should be something more than mere attestation to impute such knowledge of the contents so as to bind the attestors.
12. We have already noticed that in this case there is no material at all to show that the mother who attested the partition deed was aware of the contents thereof or had accepted the same. When she was examined as D.W.1 in this case, she specifically stated that she had no knowledge of the contents of the partition deed and that she came to know of it only when the suit was filed in the year 1984.
13. The title of the plaintiff's mother, therefore, was wholly unaffected by the recitals in the partition deed to which she was not a party and that partition deed did not have the effect of divesting her of her title and vesting the same in her husband. The mother also cannot be regarded as the benamidar of her husband, as there is no materials at all to show that she had accepted her position as benamidar and there is no decree of any Court declaring the title of the father as the owner despite the fact that the title deeds and the entries in the Municipal records stood in the name of the mother. The subsequent family arrangement does not improve the matter in any way as the father who himself did not have title to the property prior to the partition could not have parted with the same in favour of his son. The mother had at all times remained the owner of the property. She had dealt with the property as hers as evidenced by the petition filed by her against the tenant in the year 1982. It is also evident from her deposition that her actions had the implicit support and acceptance of her husband as they were living together at all times.
14. The plaintiff cannot assert title to the property on the strength of the family arrangement and the partition deed that preceded it. The plaintiff has failed to establish his title. The plaintiff not being entitled to the declaration sought, no question of granting any consequent relief arises for consideration." (emphasis supplied)
(ii) AIR 1976 MADRAS 333-P.RAM MOHAN V. LALITHA RAGHURAMAN AND OTHERS;
(iii) The judgement of Madras High Court in 1996(II) CTC 150 R.KUMARASAMY KOUNDER V. V.EZHUMALAI KOUNDER;
(iv) The judgement of Madras High Court in 1998(3) MLJ 267 GOVINDAMMAL AND OTHERS V. AMMASI KOUNDER;
(v) The judgement of Madras High Court in 2000(II) CTC 219 KANNAPPAN V. PARGUNAN AND 9 OTHERS.
25. The aforesaid precedents would unambiguously and unequivocally highlight and spotlight the fact that mere attestation of a document would not denote or connote that the attester relinquished whatever right he was having over the property covered under the said document attested by him.
26. However, the learned counsel for R21 would cite the following three decisions. It is therefore just and necessary to refer those judgements in seriatim:
(i) The Madras Law Journal Reports 197 Ramaswamy Gounder, Chinnasami Gounder alias Chinna Gounder v. Anantapadmanabha Iyer.
The said judgement stood over ruled by the Division Bench of this Court in 2003(1) CTC 745-K.A.SELVANACHI AND ANOTHER V. DR.S.R.SEKAR AND ANOTHER, referred to supra. Hence, no more elaboration in that regard is required relating to the significance of attestation of a document by a person.
(ii) AIR 1954 Madras 215 Chinnupati Venkatasubbamma v. Nelluri Narayanaswami, an excerpt from it would run thus:
"8. If there was no acceptance of the gift by the father, it follows that the cancellation of the gift deed by Ramachandriah under Ex.B8 is valid. The property therefore will continue to belong to Ramachandriah and after his death would devolve upon the daughter, the first defendant."
27. Absolutely there could be no quarrel over such a proposition that a gift or settlement should be accepted, unless such gift or settlement is accepted, it cannot be taken that it has come into vogue.
28. To the risk of repetition and pleonasm, but without being tautalogous I would like to place reliance on the decision of the Honourable Apex Court reported in (2004) 1 Supreme Court Cases 581 K.BALAKRISHNAN V. K.KAMALAM AND OTHERS, referred to supra, and also my discussion thereunder touching upon Ex.B77 to the effect that the acceptance need not necessarily be in express written form or in any specific manner, explicitly but it could even by implication.
29. Ex.B77 would enable the Court to discern and understand what was in the mind of Manicka Mudaliar when he filed the written statement in O.S.No.60 of 1931 and from that it could explicitly understood what actually had emerged and followed under Ex.A1-the settlement deed.
30. At this juncture, it is just and proper to refer to the law relating to the execution of deeds transferring properties in favour of unborn persons.
31. During the year 1914 in Madras Presidency, the Hindu Transfers and Bequets Act I of 1914, was passed to get over the embargo faced in view of the decision of the privy counsel in Tagore v. Tagore (1872) 9 BLR 377 - that there could not be any transfer intervivos in favour of unborn persons. Subsequently, for the whole of India, except Madras, the law during the year 1916, namely, The Hindu Disposition of Property Act XV of 1916, was passed. Thereafter,it was found that the law of the year 1914 was invalid as the provincial Legislature had no legislative competency. Whereupon the law of the year 1921, namely, The Hindu Transfers and Bequests (City of Madras) Act VIII of 1921 emerged, which would make virtually the provisions as contained in the law of the year 1916, namely, The Hindu Disposition of Property Act XV of 1916 applicable to Madras also. The Transfer of Property Act was subsequently amended during the year 1929.
32. Paragraph No.772 of MAYNE'S HINDU LAW AND USAGE (16TH EDITION PAGE No.1374, extracted hereunder:
"Para 772. Gift to unborn persons Law altered Prior to 1914-16, the rule of Hindu law was that the donee must be a person in existence at the date of the gift. In Raman Nadar v. Rasalamma the Supreme Court observed that though there is no authority in Hindu law to justify the doctrine that a Hindu cannot make a gift or bequest to an unborn person, the doctrine has been engrafted into the law by Tagore's case. An infant in womb is, for the purpose of this rule, in contemplation of law, a person in existence. This rule of Hindu law is abrogated by the Madras Act known as the Hindu Transfers and Bequests Act I of 1914, and the India Acts, the Hindu Disposition of Property Act XV of 1916, and the Hindu Transfers and Bequests (City of Madras) Act VIII of 1921, and is replaced by the provisions of those Acts which are in effect the same as the provisions contained in Chapter II of the Transfer of Property Act, 1882. While the Hindu Disposition of Property Act, 1916 is not retrospective, the Madras Act I o 1914 applies also to gifts or settlements executed before its commencement in respect also of such dispositions therein contained as would come into operation subsequent to the Act. Except as to what kind of property a man can give away, the Hindu law of gift has to be a great extent ceased to be personal law and has become part of the general law of the land. As the principles common to gifts and wills are more fully discussed in the next chapter, a brief statement is sufficient here."
33. A cumulative reading of all those provisions would display and demonstrate that a Hindu was made competent to execute a gift or settlement in favour of unborn persons, but subject to Chapter-II of the Transfer of Property Act. Even if a gift is made to a class of persons and if in respect of a few persons in that class if it fails, because it falls foul of the provisions of Chapter-II of the Transfer of Property Act, yet in respect of the remaining persons in that class, such transfer would be valid.
34. Keeping the aforesaid principle in mind, if the facts are analysed here, it is crystal clear that as on the date of emergence of Ex.A27-the sale deed, none of the plaintiffs were born and for that matter, Rajabather- the life estate holder himself was a minor and he was not married; subsequently he got married and the plaintiffs were born to him on the following dates:
First plaintiff - 23.10.1933 vide Ex.A3-the birth certificate, Second plaintiff 12.8.1937 vide Ex.A4-the birth certificate Third plaintiff 15.5.1944 vide Ex.A5-the birth certificate Fourth plaintiff 21.4.1948 vide Ex.A6-the birth certificate Fifth plaintiff 4.8.1950 vide Ex.A7-the birth certificate
35. Rajabather himself died only during the pendency of this appeal. In such a case, the question of Ex.A1-the settlement deed falling foul of Chapter-II of the Transfer of Property Act does not arise at all in this case.
36. The learned counsel for R21 herein would submit that the circumstances should not be lost sight of; D1, if at all had life estate over the property, he would not have kept quiet without raising even his little finger as against Navaneethammal and her heirs partitioning the property; as against which, the learned counsel for the plaintiffs would convincingly and acceptably expound that the legal personality of Rajabather was different from the legal personalities of the plaintiffs, who are having independent legal rights under Ex.A1-the settlement deed. Simply because D1 might not have raised his little finger as against Navaneedhammal and other transferees in respect of the 2nd item herein, that it does not mean that the plaintiffs were bound by the inaction of D1. D1, so far this case is concerned, was only a life estate holder.
37. Undeniable and unarguable the facts are, that the same D1, sold the item No.4 harein in favour of D9, as per E.A2, which would falsify the plea of D21 and his vendors as though D1 disowned any right under Ex.A1. Simply because D1-Rajabather during his life time kept quiet without asserting his right over item No.2 herein that it does not mean that the absolute remainders, viz., the original plaintiffs also should follow suit and simply keep quiet; A fortiori they are having the right to assert their legal rights over the suit property. Admittedly and obviously, axiomatically and glaringly it is found that Manicka Mudaliar in his Will dated 15.9.1937 did not bequeath in favour of the beneficiaries thereunder, namely Manonmaniammal, Saradammal(D2) and Kalyani (D3), the properties fund set out in Ex.A1.
38. The lower Court in paragraph No.20 discussed as though there was no one, on behalf of D1-Rajabather to accept the settlement as contained in Ex.A1, but such an approach totally ignored the dicta as found enunciated in the decision of the Honourable Apex Court reported in 2004(1) SUPREME COURT CASES 581 K.BALAKRISHNAN V. K.KAMALAM AND OTHERS, referred to supra.
39. Regarding delivery of possession is concerned, the law has got settled that when the donor and the minor donee are residing in one and the same house, the question of donor going out of the house and handing over possession of it to the minor donee does not arise.
40. In this connection I recollect the following judgement:
AIR 1918 CALCUTTA 786 - NAWAB JAN AND OTHERS V. SAFIUR RAHMAN AND OTHERS, certain excerpts from it would run thus:
". . . . . It is indisputable that where a gift is made by a father to his infant son, no change of possession is necessary; the principle is that the declaration of gift is deemed to change the possession by the father on his own account into possession as guardian on his son's account, and the law is the same in every other case where the donee is a minor in lawful custody of the donor. . . . "
41. In this case, admittedly D1 was under the tutelage and custody of Manicka Mudaliar and in such a case, the absence of actual physical delivery of the properties concerned would not be fatal to the acceptance of Ex.A1 and it cannot be stated that Ex.A1 was not acted upon by acceptance and delivery of possession.
42. All these salient features have not been considered by the lower Court. The trial Court regarding Ex.B77 had a wrong notion. In paragraph No.30 of the judgement, the trial Court thought fit to observe as though Ex.B77 emerged because there was a litigation between one Poongavanam and Manicka Mudaliar and that thereafter Manicka Mudaliar took a different stand. There is no knowing of the fact as to how the lower Court could place reliance on the subsequent stand of Manicka Mudaliar in executing Ex.A27 and disown the earlier commitment made by him before the Court in O.S.No.60/31. Manicka Mudaliar's statement before the Court cannot be taken as non-est in the eye of law. A person is not expected to take contrary stands in Court. 'Allegans contraria non est audiendus' -A person making contradictory allegations is not to be heard.
43. In paragraph No.32 of the trial Court's judgement, a fact is found referred to, that D1 got some other properties dehors the properties in Ex.A1 under a different settlement deed. Virtually, as per the trial Court, in lieu of the properties in Ex.A1, D1 got some other properties. Forgetting and over looking the fact that D1 was only a life estate holder under Ex.A1, the trial Court discussed such alternate measures allegedly agreed upon by D1; wherefore the ratiocination adhered to by the trial Court is far from satisfactory. The right of absolute remainders, namely, plaintiffs including the minor plaintiffs under Ex.A1 was totally ignored by the trial Court.
44. The discussion in paragraph No.26 of the trial Court judgement concerning item No.1 and resjudicata cannot be pressed into service as against the plaintiffs including the minor plaintiffs, as it is quite obvious from my discussion supra.
45. I would also like to refer to the following judgements of this Court:
(i) The Full Bench decision of this Court reported in 2011(2) CTC 1 LATIF ESTATE LINE INDIA LTD., REP.BY ITS MANAGING DIRECTOR, REP.BY ITS MANAGING DIRECTOR, MR.HABIB ABDUL LATIF V. 1.HADEEJA AMMAL 2.THE INSPECTOR GENERAL OF REGISTRATION, SANTHOME, CHENNAI-4 AND 3.THE SUB-REGISTRAR, AMBATTUR, CHENNAI, certain excerpts from it would run thus:
"59. After giving our anxious consideration on the questions raised in the instance case, we come to the following conclusion:
(i) A deed of cancellation of a sale unilaterally executed by the transferor does not create, assign, limit or extinguish any right, title or interest in the property and is of no effect. Such a document does not create any encumbrance in the property already transferred. Hence, such a Deed of Cancellation cannot be accepted for registration.
(ii) Once title to the property is vested in the transferee by the sale of the property, it cannot be divested unto the transferor by execution and registration of a deed of Cancellation even with the consent of the parties. The proper course would be to re-convey the property by a deed of conveyance by the transferee in favour of the transferor.
(iii) Where a transfer is effected by way of sale with the condition that title will pass on payment of consideration, and such intention is clear from the recital in the deed, then such instrument or sale can be cancelled by a Deed of Cancellation with the consent of both the parties on the ground of non-payment of consideration. The reason is that in such a Sale Deed, admittedly, the title remained wit the transferor.
(iv) In other cases, a complete and absolute sale can be cancelled at the instance of the transferor only by taking recourse to the civl Court by obtaining a decree of cancellation of Sale Deed on the ground of inter alia of fraud or any other valid reasons."
(ii) The judgement of this Court reported in 2009-2-L.W.247 G.D.Subramaniam v. 1.The Sub Registrar, Office of Konur Sub Registrar, SIDCO Nagar, Chennai-49 and three others.
46. Accordingly, the settlement deed-Ex.A1 executed by the executor cannot be cancelled or ignored by him. However, in this case, Manicka Mudaliar did choose to unilaterally ignored the said document Ex.A1, which cannot be countenanced.
IN RE ADVERSE POSSESSION:
47. Relating to the plea of adverse possession, as pleaded by D4 to D8, I would like to recollect and call up the following decisions:
(i) 2007 (4) MLJ 912 (SC) (P.T.Munichikkanna Reddy and others vs. Revamma and others) regarding ouster. Certain excerpts from it would run thus:
"5. Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. (See Downing v. Bird; Arkansas Commemorative Commission v. City of Little Rock; Monnot v. Murphy; City of Rock Springs v. Sturm.)
6. Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p.81.) It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim.
8. Also See Privy Council's decision in Chung Ping Kwan and Others v. Lam Island Development Company Limited (Hong Kong) (1997) Ac 38 in this regard.
9. Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:
1. Application of limitation provision thereby jurisprudentially wilful neglect element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.
2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper-owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.
10. It is interesting to see the development of adverse possession law in the backdrop of the status of right to property in the 21st century. The aspect of stronger property rights regime in general, coupled with efficient legal regimes furthering the rule of law argument, has redefined the thresholds in adverse possession law not just in India but also by the Strasbourg Court. Growth of human rights jurisprudence in recent times has also palpably affected the developments in this regard.
New consideration in adverse possession law
11. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v. Graham made the following reference:
Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol.
14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise.
21. A peaceful, open and continuous possession as engraved in the maxim nec vi, nec clam, nec precario has been noticed by this Court in Karnataka Board of Wakf v. Govt. of India in the following terms: (SCC p.785, para 11) Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.
22. It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.
32. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned: once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession. The ingredients of adverse possession have succinctly been stated by this Court in S.M. Karim v. Bibi Sakina in the following terms: (AIR p.1256, para 5) Adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found." (emphasis supplied)
(ii) Division Bench Judgement of this court reported in 2005-2-L.W.442 [Goundappa Gounder and two others vs. Periammal (died) and 6 others). Certain excerpts from it would run thus:
"13. According to the appellants, they have perfected title by long and continuous possession and by adverse possession. Further case of the appellants is that the plaintiff has never shared the income from the suit properties. It is well settled that the onus of proving ouster is upon those who set up adverse possession. It is well settled that as between co-owners there can be no adverse possession by one co-owner, unless there has been a denial of title and ouster to the knowledge of the other."
48. The burden is on the defendants to prove precisely the acquisition of title by adverse possession, but the facts and figures as stood exemplified from the evidence would not in any way convey and connote that the defendants concerned acquired prescriptive title over the second and fourth items of the suit properties, which are the subject matter of the present appeal.
49. This is a singularly singular case, in which the transferee under Ex.A27, Navaneedhammal, and the transferees thereafter, based on following Ex.A27 were all had the opportunity of ascertaining the true facts and they could be imputed with knowledge about the rights of the absolute remainders and they cannot plead ignorance.
50. The transferee under Ex.A27 should have taken note of the recitals in Ex.A1-the settlement deed itself and she should have insisted for Court order cancelling Ex.A1-the settlement deed, if at all she wanted to project herself as a bona fide purchaser, but she had not chosen to do so. Manicka Mudaliar- the executant of the sale deed Ex.A27 would aver as though Ex.A1 was not acted upon. Such self-serving recital should not have been taken for gospel truth by Navaneethammal and she should have insisted for Court verdict in that regard; wherefore Navaneethammal cannot be considered as a bona fide purchaser.
51. The fact remains that after the execution of Ex.A1-the settlement deed but before the emergence of Ex.A27, Ex.B77 emerged, wherein the very same Manicka Mudaliar quite antithetical to what he averred in Ex.A27, stated in Ex.B77 that as per Ex.A1-the settlement Deed, the property concerned was not with him but with the settlee. Hence, even by phantasmagorical thoughts it cannot be construed and discerned that Manicka Mudaliar's version in Ex.A27 should be taken for gospel truth.
52. Adverse possession over the property concerned, cannot be inferred in support of the defendants concerned, when they had full knowledge about the existence of the absolute remainders in this case.
IN RE LIMITATION POINT
53. Regarding the limitation point is concerned, the learned counsel for the plaintiffs would submit that only after the death of Rajabather, the claim of limitation would arise for the plaintiffs to assert their right. As on the date of filing of the suit, D1-Rajabather was very much alive and in the meanwhile, the plaintiffs wanted to assert their right so as to avoid unpleasant discomfiture at a later date when they seek for possession, as they had no right to possession during the life time of Rajabather-the life estate holder.
54. However, the learned counsel for R21 would submit that inasmuch as Rajabather showed no interest under Ex.A1-the settlement deed, the question of the plaintiffs waiting for the death of Rajabather and thereafter asserting their right over the suit property would not arise and within the period of limitation, they should have filed a comprehensive suit for setting aside the alienations which were made, detriment to the plaintiffs' right and they should also have asked for possession of the property. He would also submit that the plaintiffs, within three years on attaining majority, should have filed the comprehensive suit; whereas, by the time the plaintiffs filed the suit in the year 1965 such three years' period got elapsed. The trial Court in its judgement wrongly held as though the suit was barred by limitation as within 12 years from the date of death of Manicka Mudaliar, the suit was not filed. Such approach does not have the back up of any law. Sakunthalammal, Ravakannu and Bhuvaneswari-the plaintiffs 1 to 3 attained majority long prior to 1965. However, the fact remains that P4 and P5 were minors, admittedly, as on the date of filing of the suit in the year 1965. As such, from the view point of P4 and P5, even before they attaining majority, they set the law in motion so as to assert their right. Even in respect of P1 to P3 it cannot be stated that they lost their right because of the limitation period. Only after the death of Rajabather-D1, the question of limitation as against their right would commence operating.
55. Relating to the objection of R21 herein that the suit was a premature one, the learned counsel for the plaintiffs fair and square would bring clarity by explaining and expounding that during the life time of D1, the plaintiffs cannot seek for possession, as their right to possess the property was only with Rajabather during his life time, and disregarding the same, the plaintiffs could not straight away ask for possession.
56. I could see considerable force in the submission made by the learned counsel for the plaintiffs that the suit was filed during the life time of Rajabather so as to prevent further complications and discomfiture being created in respect of the suit properties. Hence, the suit cannot be labelled as a premature one.
57. 'Ubi jus, ibi remedium' Where there is a right, there is a remedy.
58. Paragraph No.702 of MAYNE'S HINDU LAW AND USAGE (16TH EDITION PAGE No.1130), is extracted hereunder:
"702. Surrender and Prior alienations Is it open to a Hindu widow who has alienated a part of her husband's estate to make a valid surrender of what remains? There is a difference of opinion on this question. On the one hand the Madras High Court has held thath if the prior alienation is for purposes binding on the reversion, the subsequent surrender is valid. On the other hand it has been held in a series of cases that where a widow alienates part of the estate without justifying necessity and afterwards surrenders the whole of what remains to the next reversioner, the latter is not entitled to challenge the alienation made by the widow until she dies. In other words, the alienation is valid for her life and the alienee's possession cannot be disturbed during her lifetime. But the logical result of the theory of relinquishment is her self- effacement and letting in the next heir at once. As Mookerjee, J. Pointed out, the reverter takes effect in all cases where the widow's right ceases, "in other words, the reversioners take the estate, not merely when the widow dies, but also when her title is extinguished, for instance, by renuciation, remarriage or the like". And her remarriage, as has been held, determines at once the interest of an alienee who would otherwise be entitled to retain it (para 561). On surrender bona fide and valid in all respects, the reversioner's title is by succession like the title of a son, adopted by the widow. The surrender operates as if it were the widow's civil death. It would seem, therefore, that when a widow makes a gift or an alienation which is in effect a gift and afterwards makes a surrender, the reversioners would be entitled to recover the property at once. An equity in favour of an alienee for value may perhaps be recognised as an exception, though one who purchases a widow's estate must know it is liable to terminate on her remarriage, relinquishment, adoption of a son or her entrance into a religious order. Where the alienation is for necessity, it will, of course, not be affected by the surrender."
59. At this juncture, I call up and recollect the following decisions of this Court also:
(i) Karuppa Udayar and others v. Sellamuthu Udayar and others reported in Law Weekly Volume 69 page 446, certain excerpts from it would run thus:
". . . . . The learned Chief Justice Rajamannar quotes Imrit Kanwar v. Roopnarain Singh (2), for the proposition that a compromise, the terms of which amount to an entire abandonment by a limited owner of all the rights of the reversioners. In that case, the facts were these: In a suit in which a claim was made by virtue of an alleged adoption to the estate of a deceased Hindu the widow made a compromise with the claimant wherein the adoption was admitted but on condition that the widow should enjoy the entire property for her life without power of alienation and that after her death her minor daughters should take the self acquired property and that the claimant should succeed to the ancestral estate. It was held that the daughters could not under any circumstances be bound by the compromise. A compromise by a widow by which the reversioner's rights and interests are jeopardized should be tested in the same manner as an alienation by her and could be upheld only if that is beneficial to the estate has been recently considered by the Supreme Court. In S.A. No.1825 of 1945 and 429 of 1946 the case law on the subject has been discussed by Balakrishna Aiyar J. sitting with Rajamannar C.J.
(ii) Chinnakolandai Goundan v. Thanji Gounder and others reported in Law Weekly, Volume 78 page 256, certain excerpts from it would run thus:
". . . . . I noticed a judgment of the Punjab High Court in Teja Singh v. Jagat Singh (1), in which the same view as I have indicated above has been taken. In that case a widow gifted the property inherited by her from her husband in 1938, and the reversioner had obtained a declaration that the alienation would not bind the reversioner after the death of the widow."
60. The above decisions are referred to purely for the purpose of highlighting the point that an absolute remainder even during the life time of life estate holder can file a suit to safe-guard his interest without seeking for possession.
61. An absolute remainder even before he gets possessory right over the suit property, can very well approach the Court for remedial measures.
62. The learned counsel for R21 herein would raise a point that once a third party is obviously in possession, what prevented the plaintiffs not to seek for possession.
63. I would like to shed light on the point out that even though D1-Rajabather might not have asserted his right to possession during his life time, yet as per the deed Ex.A1, the plaintiffs could assert their possessory right only after the death of D1-Rajabather. Hence, the suit cannot be dismissed on the ground that it was bad for piecemeal prayer or for its alleged prematurity.
64. The learned counsel for the plaintiffs would point out that Rajabather himself as per Ex.A2, executed the sale deed in favour of D9, transferring the 4th item of the suit properties, which happens to be one of the properties in Ex.A1-the settlement deed.
65. The analysis and observations and the law point discussed relating to item 2 would mutadis mutandis be applicable to item No.4 also. Over and above that, the conduct of D1-Rajabather by executing Ex.A2-the sale deed would also indicate and exemplify that he never by implication evinced that Ex.A1-the settlement deed was not acted upon. Had the stand of D1 was that Ex.A1-the settlement deed was not acted upon and with that intention alone he attested Ex.A27, then he might not have executed Ex.A2. However, Ex.A2-the sale deed could be valid only during his life time and it would have no probative force after his death and the plaintiffs do have the right to assert their right over item No.4 of the suit properties also.
66. Accordingly, the points are answered as under:
Point No.(i) is decided to the effect that Ex.A1-the settlement deed dated 7.6.1927 was not bad for want of acceptance by D1 or somebody on D1's behalf.
Point No.(ii) is decided to the effect that the attestation of Ex.A27-the sale deed dated 25.7.1937 by D1-Rajabather cannot be construed legally as his consent for such sale, as though he expressed his intention that Ex.A1 was not acted upon?
Point No.(iii) is decided to the effect that Ex.B77-the written statement filed by Manicka Mudaliar in O.S.No.60 of 1931 in respect of Ex.A1-the settlement deed herein, is fatal to the plea of the defendants.
Point No.(iv) is decided to the effect that the execution of the sale deed-Ex.A2 dated 27.8.1943 by D1-Rajabather transferring the 4th item of the scheduled property in favour of D9 could be valid only during Rajabather's life time and thereafter it shall have no probative force after his death and the plaintiffs do have the right to assert their right over item No.4 of the suit properties also.
Point No.(v) is decided to the effect that the suit was not barred by limitation.
Point No.(vi) is decided to the effect that the plea of adverse possession as put by D4 to D8 is untenable?
Point No.(vii) is decided to the effect that the suit was not bad for want of a prayer for possession and the suit was not a pre-mature one.
Point No.(viii) is decided to the effect that there is perversity and illegality in the judgement of the trial Court.
67. In the result, the judgement and decree of the trial Court is set aside and the suit is decreed only in respect of items 2 and 4 of the suit properties to the effect that the sale deeds Ex.A27 and Ex.A2 25.7.1937 and 27.8.1943, respectively in respect of item No.2 and item No.4 of the suit properties shall have no binding effect on the plaintiffs. The defendants shall not further in any manner alter or encumber those properties concerned.
Msk To The 5th Assistant Judge, City Civil Court, Madras