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Madras High Court

Eswaramurthy (Died), Parvathy, ... vs Muruga Gounder (Died), Rajarathinam, ... on 30 April, 2002

Equivalent citations: (2002)2MLJ415

Author: Prabha Sridevan

Bench: Prabha Sridevan

ORDER

1. There are four appeals and one cross-objection.

(a) O.S. No.1290 of 1979 is filed by one Eswaramoorthy and others against Muruga Kounder and two others for partition. This suit was partially decreed. Against this, A.S. No.467 of 1983 and one cross-objection and A.S.No.2 of 1985 were filed.

(b) O.S. No.340 of 1980 was filed by Muruga Gounder, the first defendant in the above suit against Palaniammal the mother of the first plaintiff in the previous suit, and plaintiffs 1 & 4 to 7 in the former suit. This was decreed. Against this, Tr.A.S. No.173 of 1981 has been filed.

(c) O.S. No.341 of 1980 was filed by the mother of the second defendant in the first suit against the aforesaid Palaniammal and plaintiffs 4 to 7 and also the first defendant in the first suit. That was dismissed. Against this, A.S. No.174 of 1981 has been filed.

2. The genealogy of the parties to these proceedings must be first taken note of. The suit properties belong to one Kavundammal. She had three daughters viz., Palaniammal, Velammal and Thayammal. Thayammal died in 1979. Palaniammal - D1 -- O.S.No.340/1980_______________________________ & O.S.No.341/1980Son DaughterP1P2 & 3 -- O.S.No.1290/1979D2---------------------------------------- O.S.No.340/1980Thayammal(died in 1979) -- D4 O.S.No.1290 /1979 -- D3 O.S.NO.340 /1980 -- D2 O.S.NO.341 /1980________________________________Son Son Daughter P5 P6 P7 -- O.S.NO.1290/1979D4 D5 D6 -- O.S.No.340/1980D3 D4 D5 -- O.S.No.341/1980Velammal - P -- O.S.No.341/1980Father-in-law___Son (D2) -- O.S.No.1290/1979D1 ------------------------------- O.S.NO.1290/1979 P ------------------------------- O.S.NO.340/1980D6 ------------------------------- O.S.No.341/1980(Abbreviations Used: D-Defendant, P-Plaintiff)

3. O.S. No.1290/79:

(i) The plaintiffs claim that Kavundammal settled one acre of item No.1 of the suit property in favour of Thayammal on 14-06-1958 under Ex-A1, which immediately came into effect. Kavundammal wrote a Will on 26-04-1979. She died on 16-07-1979. Under this Will, she gave to the first plaintiff 1.1475 acres, to plaintiffs 2,3,5 and 6 and the third defendant, another 1.1475 acres and to the second defendant, 74 cents. The well in suit item No.1 of the property along with the huts and the coconut trees were bequeathed to plaintiffs 1, 5 and 6. A share in the motor pumpset in the well was also claimed. Adjacent to the aforesaid property, the property in Survey No.257/1 is situated. This is item No.2 of the suit property. This belongs to the first defendant. Though the first defendant has no right to take the water in the well he is utilising for his own land, he claims the rights of the cultivating tenant in respect of item No.1 of the suit property. He is not entitled to do so. If any documents have been procured so as to give the first defendant the rights of a cultivating tenant, such documents are fraudulent and any entry in the record of rights has also been obtained by fraud. The plaintiff therefore, claims partition, possession, mandatory injunction in respect of the well and other reliefs.

(ii) The first defendant claimed that the suit property are actually only to an extent of 4 acres and 3 " cents originally. The Survey No.275 comprised of 8.07 acres. The northern half belonged to Kavundammal and the southern half belonged to the second defendant Velayutham. The well in Survey No. 275 is the only source of irrigation for the entire survey number. Therefore, though it is situated in the northern half, the huts and the well should be divided equally between the two owners. Out of the southern half belonging to Velayutham, the southern-most two acres were given to one Naidu, who plotted it out and sold it, the second defendant and the family were retaining the balance 2 acres and 2 " cents and they had sold this land along with the well and other properties to the first defendant. Therefore, the first defendant has been in possession of the 2 acres and 2 " cents ever since 1922, the date of purchase. He was given a lease of the 4 acres and 3 " cents belonging to Kavundammal along with the well and other properties, that the son of Kavundammal, he and his family are living there. He has deepened the well and put T-HP motor. It is not correct to state that Thayammal accepted the deed and they are in possession of the property and only on her death, Kavundammal alone was enjoying the property and recovering the rents. The Will was procured when Kavundammal was not in a sound and disposing state of mind. Since he is entitled to enjoy the water in the well, no one can restrain him from utilising his half share in the well. To the knowledge of everyone, he has recorded his name as a cultivating tenant in the record of tenancy. The suit should be dismissed. This suit was decreed only in respect of the properties bequeathed under the Will and it was dismissed with regard to other reliefs. Against this A.S.No.467 of 1983, a cross objection and A.S.No.2 of 1985 have been filed.

4. O.S. No.340 of 1980

This suit was for permanent injunction in respect of the plaintiff's alleged half share in the well and other properties. The second defendant filed his written statement in accordance with his plaint in the above suit. This suit was decreed. Against this Tr.A.S.No.173 of 1991 is filed.

5. O.S. No. 341 of 1980

This suit was filed for partition and separate possession of her half share in the property. This was dismissed and Tr.A.S.No.174 of 1991 has been filed. The reference to the parties will be according to their rank in A.S.NO.467 of 1983, the main appeal.

6. Mr. S.V. Jayaraman, learned senior counsel appearing for the appellants would submit that there can be no doubt about the truth and validity of the settlement deed as well as the Will. He would submit that as far as the Will is concerned, there can be no attack. The Trial Court had correctly found that the Will was genuine. There was no evidence to show that the plaintiffs 1 to 4 had influenced Kavundammal to execute the Will. P.W.6 has given evidence that after the Will was written, it was read out and Kavundammal had given her assent to the Will and thereafter, it was signed. Attesting witnesses P. Ws. 2,3,4 and 6 have also clearly deposed regarding the Will and therefore, notwithstanding any minor discrepancies in the evidence, the Will cannot be rejected.

7. As regards the settlement deed, which is marked as Ex-A1, it has been attested by one Palani Gounder and one Venkataraman Thevar. This was executed in 1958 itself. P.W.7 has given evidence regarding the execution of the settlement deed. The learned senior counsel would submit that two factors would clinchingly prove that the settlement deed had come into effect. One is, the settlor herself mentions the settlement deed in the Will and this is 11 years after Ex-A1 and two, Ex-B26, which is the extract of the proceedings of the record of Tenancy Tahsildar shows the name of Thayammal as 'owner' for the relevant survey number. This is enough to show that Ex-A1 had come into effect. There was no occasion for Thayammal's name to be found as the owner of the property if it was not common knowledge that Ex-A1 had come into effect.

8. The learned senior counsel would also submit that the first defendant was not entitled to claim any rights as a cultivating tenant since he had denied the title of the landlord, Thayammal and only a person, who accepts the landlord-tenant relationship can claim the protection of the Act as of right. He would also submit that even as regards the well, the Court below had wrongly held that the first defendant had half right in the well and therefore, he would pray that all the appeals should be allowed.

9. Mr. V.K. Muthusamy, learned senior counsel appearing for Muruga Gounder, the first respondent in the main suit would submit that the settlement deed never came into effect nor was intended to come into effect because several years after the settlement deed, Kavundammal herself had executed a tenancy agreement in the first respondent's favour and therefore, she alone retained all the rights in respect of the property. He would further submit that assuming without admitting the settlement deed had come into effect, he had no occasion to know about it since he was only dealing with Kavundammal all along. Therefore, his failure to attorn his tenancy to Thayammal cannot be considered as denial of title. As regards the share in the well, the learned senior counsel pointed out to Exs-B5, B11, B12 and B26 to show that there is a clinching admission that the first defendant had an undivided right in the well.

10. Mr. Gururamachandran, learned counsel for the respondents would claim partition in the entire property since there is no evidence to show that the settlement deed came into effect.

11. The crucial questions that arise for consideration in these appeals are with regard to the validity of the Will, the settlement deed and of the rights in respect of the well.

12. Exhibit-A1: In this, Kavundammal has transferred in present, the schedule mentioned property. She has stated that actual possession could not be given because it is in the tenant's possession. She has also clearly stated that she has no right to cancel this settlement deed. In Ex-A2, dated 27-04-1979, she has referred to the settlement deed in favour of the settlee under Ex-A1. D.W.2, while attacking the Will and the settlement deed, however, says in the cross-examination that she has no direct knowledge and while referring to Ex-B26, he is unable to say why Thayammal's name was found in that order. This witness also does not have any knowledge of the settlement deed.

13. A gift or a settlement is bound to be attested by two witnesses as per Section 123 of the Transfer of Property Act. Section 68 of the Indian Evidence Act requires examination of atleast one attesting witness if a document is required by law to be attested. Under Section 70 of the Indian Evidence Act, the admission of a party to a document of its execution by itself shall be sufficiently proof of its execution as against him, though it be a document required by law to be attested.

14. Eleven years after the settlement deed Kavundammal has herself referred to the execution of the settlement deed. Under these circumstances, unless the respondents are able to show that Ex-A1 has not been executed it shall be presumed to be valid.

15. It is well-settled that acceptance of a gift may be inferred and may be proved by the donee's possession of the property, donee's possession of the document, specific recital in the gift deed etc. It is also well-settled that when the gift of immovable property is not onerous a very slight evidence is sufficient for establishing the act of acceptance. Ex-B26 is a strong piece of evidence to show that Ex-A1, gift deed, had come into effect. It must be remembered that this is the copy of the proceedings before the RTR Authority filed by the contesting respondent himself. There was no reason why Thayammal's name should be found as the owner. The presence of Kavundammal's name can be explained since she was the original owner and so also the presence of the name of Rajarathinam since he had a share in the survey number. But the mentioning of Thayammal's name alone out of the three daughters clearly shows that not only had the gift deed came into effect, but it was matter of public knowledge that Kavundammal had executed a settlement deed in favour of her daughter Thayammal. The donor herself has supported the validity of the gift and has in fact mentioned the transaction that took place in the subsequent document i.e., Ex-A2. This clearly shows that Ex-A1 had come into effect.

16. In a similar situation, it was held in Alapati Venkataramayya Vs. Alapati Nagamma (AIR 1932 Madras 272), that where a gift was made of a house by the mother to her son and his wife, the mere circumstances that the mother retained custody of the deed and kept the house in her name in the Municipal accounts and paid the taxes does not show that she did not intend the gift to be acted upon. Of course, in that case, the donee's were also minors.

17. In Kamakshi Ammal Vs. Rajalakshmi , a Division Bench of this Court has held that when there is a specific recital in the gift deed, that possession has been handed over to the donee, where a father had gifted to his daughter immovable properties and took her acceptance. The daughter had allowed the father to enjoy the income from the properties. It was held that in view of the relationship of the father and the daughter, it could not be said that there was no acceptance of the gift, even assuming that the donor continued to be in enjoyment and possession of the property gifted. In that case, even after the donee's death, the donor continued to deal with the property and had stated before the Court that the settlement deed had not come into effect, and yet, the Division Bench came to the conclusion that the settlements were valid. In that case also, the donor continued to possess and enjoy the property and there is no mutation of names in the Municipality.

18. The facts are similar. But the recitals of the deed show that the settlor had parted with all the rights on that date itself. Apart from physical possession which was with the tenant the donor has retained nothing and the recital is unambiguous. Already, there has been a reference to the record of tenancy register and therefore, even though the lease deeds appear to have been executed by Kavundammal, the acceptance of the property took effect right from date of Ex-A1 and therefore, the appellants 4 to 7, the husband and children of Thayammal, Kavundammal are entitled to the subject matter of property as per Ex-A1.

Therefore, the validity of Ex-A1 cannot be assailed and it must be held that Ex-A1 had come into effect.

19. Cultivating tenancy right of the first respondent :

The 1st respondent(deceased) claims that he has been inducted into the suit property as a cultivating tenant by Kavundammal, who continued to receive the lease amounts from him and therefore, he is entitled to the benefits of Act 25 of 55. In Ex-B6, the lease deed dated 02-06-1951, which is in favour of one Krishna Gounder, father of Muruga Gounder has taken on lease an extent of 4.3 acres in Survey No.275. Under Ex-B11, Muruga Gounder has entered into a lease agreement for the same extent. This is repeated in Ex-B12, which is of the year 1960. Exs-B13 to B21 are rent receipts. Under Ex-B25, notice was given by the record of tenancy Tahsildar. After enquiry, Ex-B26 order was passed, which relates to Survey No.26 and 275/1, in which it is recorded that Muruga Gounder is cultivating Survey No.26 and 275/1. The judgment clearly shows, "tprhuizf;Fg; gpwF ,tUf;F gp/rh/26 tH';fg;gl;oUf;fpwJ/ me;j gp/rh/26. 275-1 vz; bfhz;l fhiyia bghUj;jJ/ ,jpy; 5.92 Vf;fh; epyj;ij ,e;j Kjy; gpujpthjpahd KUfh ft[z;lh; rhFgo bra;tjhf Fwpf;fg;gl;oUf;fpwJ/ gp/rh/26y; Fwpf;fg;gl;oUf;Fk; gug;g[ jtwhf ,Uf;fpwJ vd;whYk; Kjy; gpujpthjp 275-1 fhiyapy; epyj;ij rhFgo bra;a[k; Fj;jifjhuh; vd;gJ epythu chpik gjpntl;oy; gjpthfp ,Uf;fpwJ vd;gJ bjhpfpwJ/@

20. Kavundammal had entered into a tenancy agreement with Muruga Gounder as is evidenced by Ex-B12. During the currency of the tenancy agreement, she had settled the property in favour of Thayammal. "nkw;go Fj;jif bfLtpw;Fnky; me;jbrhj;jpy; vdf;F ve;jtpjkhd Rje;jpuKk; ,y;iy"

At the time of execution of this settlement deed, Kavundammal had created a lease deed in favour of Muruga Gounder on 22-04-1958 under Ex-B11. Ex-B11 was in force for 3 years. The settlor having parted with all her rights in the property under Ex-B1 was not legally entitled to create any encumbrance or lease in favour of third party after the expiry of Ex-B11. In this regard, the Trial Court had stated that, @ft[z;lk;khs; gp/rh/12 go 21-12-1960y; Fj;jifr; rPl;L vGjpf; bfhLj;jpUf;fpwhh;/ mjw;F Kd;g[ 22-04-1958y; gp/rh/11 Fj;jifr; rPl;Lk; vGjpf; bfhLj;jpUf;fpwhh;/ gp/rh/11 Fj;jifr; rPl;L 22-04-1958y; vGjpa gpwF 14-06-1958y; jhak;;khSf;F th/rh/1go ft[z;lk;khs; jhdg;gj;jpuk; vGjpf;bfhLj;jpUf;fpwhh; vd;w rhl;rpaj;jpy; Twg;gl;lJ/ ,e;j jhdg; gj;jpuj;jpy; xU Vf;fh; epyk; jhak;khSf;F bfhLf;fg;gl;Ltpl;lJ/ ,t;thwpUf;Fk;nghJ kPz;Lk; gp/rh/12go 21-11-1960y; Fj;jifr; rPl;L vGJk;nghJ ft[z;lk;khs; Kjy; gpujpthjpf;F 4 Vf;fh; 3\ brd;l; g[{kp Fj;jiff;F bfhLj;jpUf;fpwhh;/ ,t;thW jhdg;gj;jpuk; vGjpa gpwFk;Tl me;j g[{kpiaa[k; nrh;j;J Fj;jiff;F ft[z;lk;khs; 1k; gpujpthjpf;F bfhLj;jpUg;gjhy; jhak;khis epyj;jpd; brhe;jf;fhuh; vd;W Vw;Wf;bfhs;sKoahJ/ mjdhy; Kjy; gpujpthjp jhth epyj;ijg; gaph; bra;a[k; Fj;jifjhuh; vd;gJ bjspthfj; bjhpfpwJ/@ This approach is clearly erroneous. According to the learned Trial Judge, because the settlor had executed a lease deed, after the settlement deed the settlee cannot be said to be the owner of the property. Actually, the reverse is true. Having parted with all her rights under the settlement deed, atleast insofar as the one acre that is settled on Thayammal, the settlor had no right to create any lease or to transfer in favour of anyone. The person can give only what he has Nemo dat quod non habet. It is also clear from the judgment that the Trial Court has come to the conclusion merely on the basis of the entry in the record of tenancy rights and for the reasons stated above that Kavundammal had executed a lease deed in 1960 after the settlement deed.

21. At best, the respondent may be able to show that he continues to be in possession after Ex-B1, but thereafter, his possession of one acre of land given to Thayammal was not in pursuance of any lease deed or any arrangement of cultivating tenancy. The discussion in this regard in the judgment is not satisfactory.

22. For the following reasons the finding that he is a cultivating tenant is set aside.

A cultivating tenant is as per Section 2(aa) of Act 25/55. There is no evidence of physical labour of Murugu Gounder or his family. No doubt there is a tenancy agreement, but that will not take him very far, if he does not prove physical cultivation. Not only he has let out the property to one Vellai Gounder for running a cinema theatre so he is a tenant who has used the land for a purpose neither agricultural or horticultural and is hit by Section 3(2)(c) of Act 25/55. Further he has wilfully denied the title of Thayamal. That he was aware of her rights is clear from the inclusion of her name in the RTR proceedings, Act X of 69. The authorities under the said Act are bound to give reasonable opportunity to the parties concerned, which here includes Thayammal. Not having been put on notice, Thayammal and her legal heirs can ignore the entry obtained behind her back. Ex-B12 will not convey any rights to the first respondent, since Kavundammal had no right in the property conveyed. He cannot claim any protection as a tenant much less as a cultivating tenant in respect of this one acre covered by Ex-A1, since he has denied the title of Thayammal.

23. Rights in the well:

As regards the right of the first respondent to claim injunction, the following documents were relied on to show that he was entitled to the entire share in the well, shed, horse-pump and coconut trees.

(a) Ex-B1 dated 29-12-1942 under which Kavundammal had sold the property, which is the southern half of Survey No. R.S.No.275. The entire survey number is of an extent of 8 acres and 7 cents. Of this, an extent of 4 acres and 3 cents was sold together with the coconut trees. "1y; ghjpf;fpzUk; fpHf;Fg;ghh;jj 5 m';fz tpy;iy rhiyapy; rhp ghjp bghJtpy; m';fzk; 2\ a[k;. ,e;j 2\ m';fzj;ijr; nrh;e;j fjt[ epyt[fl;Ff; nfhg;g[k; i& 5 m';fzr; rhiyiar; nrh;e;j xj;ij tpy;iy lhg;gpy; bghJtpy; ghjpa[k; i& rh]yapYs;s bjd;]d ku';fs; 22y; bghJtpy; rhp ghjp 11 ku';fSk; i& bjd;ghjpg; g[{kpiar; nrh;e;j kw;w khtpil kutpilfSk; rfpjk; i& g[{kpapYs;s Fothu ghj;ak; cs;gl/@

(b) In 1943, under Ex-B2, Palani Gounder, the purchaser under Ex-B1 has executed a lease deed in favour of one Chengaliappa Gounder. In 1945, under Ex-B3, the property purchased under Ex-B1 was sold by Palani Gounder to Maruthamalai Gounder. Under Ex-B4, Maruthamalai Gounder had sold the said property to Velayutha Gounder. In this Kavundammal's share is shown as the northern boundary.

(c) Ex-B11, dated 22-04-1958 is the lease deed executed by Muruga Gounder, the first respondent in this appeal, in favour of Kavundammal. This refers to the northern half, which as seen earlier was retained by Kavundammal for selling the southern half.

(d) Ex-B5 is dated 17-05-1972. In this document, Velayutha Gounder's heirs namely Velammal, Rajarathinam and Lalitha have sold 2 acres and 2 cents out of 4 acres and 3 cents, which was purchased by Velayutha Gounder under Ex-B5.

25. According to the learned counsel, the first respondent, now deceased was in possession of the southern half all the sheds, well and coconut trees purchased from Velayutha Gounder and of the northern half, by virtue of the lease in his favour by Kavundammal and therefore, he is entitled to injunction. In view of the findings above he cannot claim injunction against the owner.

26. In view of the acceptance of the validity of the settlement deed and the Will, the Clause No.1 of the Trial Court decree is modified and there shall be a decree in favour of the appellant for division by metes and bounds of item No.1 suit property and allotment of 3.24" acres to all the appellants as per the plaint. As regards, Clause No.2, there shall be a decree for possession. In other respects, the decree shall stand confirmed.

27. A.S.No.2 of 1985 and cross objections in A.S.No.467 of 1983 are therefore, dismissed. A.S.No.467 of 1983 is partially allowed.

28. Tr.A.S. No.173/91 filed against O.S.NO.340 of 1980, is dismissed, since the claim of cultivating tenants is not accepted and there can be no decree for injunction against the owners who have obtained a decree for possession in A.S.NO.467 of 1983.

29. Tr.A.S. No.174 of 1991 filed against the dismissal of O.S.No.341 of 1980 for partition is dismissed.