IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:10.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.297 of 2010 1. Chinnammal 2. Lakshmiammal 3. Ellammal .. Appellants vs. 1. Mallika 2. Krishnan 3. Dass .. Respondents This second appeal is focussed as against the judgment and decree made in A.S.No.20 of 2006 dated 22.01.2008 by the learned Subordinate Judge, Cheyyar reversing the judgment and decree made in O.S.No.374 of 1995 dated 31.03.2006 by the learned Addl. District Munsif, Vandavasi. For Appellants : Mr.P.Seshadri For Respondents : Mr.K.G.Senthilkumar J U D G M E N T
This second appeal is focussed by the original plaintiffs animadverting upon the judgement and decree dated 22.01.2008 passed in A.S.No.20 of 2006 by the learned Subordinate Judge, Cheyyar, reversing the judgment and decree of the learned Additional District Munsif, Vandavasi in O.S.No.374 of 1995. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
(a) The plaintiffs filed the suit seeking the following reliefs:
(i) Directing the division of the suit properties into 4 equal shares and allot 3 such shares to the plaintiffs and directing the possession of the same to the plaintiffs through Court;
(ii) Directing the defendants to pay mesne profits to the plaintiffs from the date of Suit up to the of delivery of possession;
(iii) Restraining the 1st defendant by a decree of permanent injunction not to alienate to the defendants 2 and 3 herein anybody else not more than the 14 share of her husband the deceased Mannar Pillai.”
(b) The written statement was filed resisting the suit.
(c) Whereupon the trial Court framed the relevant issues.
(d) The second plaintiff-Chinnammal examined herself as P.W.1 and Exs.A1 to A6 were marked. The defendants 1 and 3 examined themselves as D.W.1 and D.W.2 and Exs.B1 and B2 were marked.
(e) Ultimately the trial Court decreed the suit for partition allotting 1/4th share in favour of each of the plaintiffs 2, 3 and 4 as the first plaintiff already died and one other 1/4 share in favour of Malliga/D1 and her children even though the children are not eo nomine parties in the party arrayed.
(f) Challenging the said judgment and decree of the trial Court, the appeal was filed. Whereas, the first appellate Court reversed the findings of the trial Court and set aside the judgment and decree of the trial Court and dismissed the original suit.
3. Challenging and impugning the judgment and decree of the first appellate Court, the plaintiffs 2, 3 and 4 as appellants filed this Second Appeal on various grounds inter alia to the effect that the appellate Court reversed the reasoned findings of the trial Court and simply took it for granted that the exchange deed conferred absolute right over D1’s husband-Mannar Pillai; and whereby Mannar Pillai acquired as though prescriptive title over the suit property and that the alienation made by Mannar Pillai in favour of the third parties could not be found fault with.
4. The following substantial questions of law are found suggested in the grounds of appeal:
“(1) Whether the Lower Appellate Courts is correct in reversing the well considered finding of the trial court that the properties obtained under the exchange deed are joint family properties and appellants herein are entitles to partition?
(2) Whether the appellate Court is right in finding that the plaintiffs have not come forward with a prayer to set aside the Exchange Deed dated 12.12.1980 while rejecting the claim of the plaintiffs for partition when in fact the appellants are not parties to the said transaction and the properties covered under the exchange in effect belonging to the father of the appellants?
(extracted as such)
5. My learned Predecessor framed the following substantial questions of law:
“(1) Whether the lower Appellate Court is right in observing that the suit properties are not joint family properties?
(2) Whether the lower Appellate Court is correct in determining that the plaintiffs should have prayed for setting aside the Exchange Deed dated 12.12.1980? (extracted as such) 6. Heard both sides. 7. A 'resume' of facts absolutely necessary and germane for the proper discussion would run thus:
Indubitably and indisputably, one Potti Pillai acquired certain properties as per the sale deeds Ex.A3 dated 04.10.1954, Ex.A4 dated 26.12.1957 and Ex.A5 dated 07.11.1959. He died in the year 1965 leaving behind his four daughters namely Kanniyammal, Chinnammal, Lakshmiammal, Ellammal and one son by name Mannar Pillai. According to the plaintiffs, the said Mannar Pillai enjoyed those properties purchased by Potti Pillai on his behalf and on behalf of the female heirs of Potti Pillai. It is the contention of the plaintiffs that the said Mannar Pillai with the consent of the plaintiffs got the aforesaid Potti Pillai’s property exchanged as per Exchange Deeds Exs.A1 and A2 dated 12.11.1980. The first plaintiff even during the life time of Mannar Pillai started staying in the house of Mannar Pillai as her husband died and she had no issues also. During the life time of Mannar Pillai there was no problem at all as Mannar Pillai recognised the rights of the daughters of Potti Pillai and shared income also with them and only after his demise, his wife D1 started creating trouble and also alienated the property as per Ex.B2 dated 29.11.1994 in favour of one Elumalai. However, D2 and D3 were instrumental for such alienation and Ex.B2 is a pendente lite document, whereas the defendants would contend that Mannar Pillai during his lifetime acquired absolute right over the suit property as per the Exchange Deeds and his enjoyment of it.
8. The learned counsel for the plaintiffs/appellants would put forth and set forth his arguments, which could tersely and briefly be set out thus:
(a) On the death of Potti Pillai, admittedly his four daughters and one son became jointly entitled to 1/5th share each and in such a case, D1 being the widow of deceased Mannar Pillai, the son of Potti Pillai could not assume and presume as though Mannar Pillai was the absolute owner of the entire property by virtue of the said Exchange Deeds Exs.A1 and A2 and as such her alienation of the suit property was illegal.
(b) The trial Court appropriately and appositely, correctly and convincingly adhered to the correct proposition of law, gave its verdict that the plaintiffs along with Mannar Pillai were entitled to aliquant share.
(c) Whereas, the first appellate Court by misinterpreting the evidence and wrongly applying the law held as though the Exchange Deeds conferred absolute right on Mannar Pillai and he also got patta in his favour and that he acquired prescriptive title also, when in fact, ouster was not specifically pleaded in the written statement.
Accordingly, the learned counsel for the plaintiffs/appellants would pray for setting aside the judgment and decree of the first appellate Court and for restoring the judgment and decree of the trial court by allowing this appeal.
9. In a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the appellants, the learned counsel for the respondents/defendants would advance his arguments, which could pithily and precisely be set out thus:
The first appellate Court delved deep into the matter unlike the trial Court and culled out the real truth involved in it and dismissed the original suit by giving reasoned findings that the said Mannar Pillai after the death of his father Potti Pillai enjoyed the property as his own property and thereafter, got the property exchanged with the suit property and whereupon he also got the patta changed in his name and in such a case, the alienation made by Mallika/D1 in favour of the third parties cannot be found fault with.
Accordingly, the learned counsel for the respondents/defendants would pray for the dismissal of the Second Appeal.
10. I would like to fumigate my mind with the following decisions of the Hon’ble Apex Court:
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL,
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
A plain poring over and perusal of those decisions would highlight and spotlight the fact that the Second Appeal cannot be entertained by the High Court as per Section 100 of CPC unless there is any substantial question of law is made out from the available materials on record. Hence it has to be seen as to whether any substantial question of law is available for being formulated in this case.
11.At the outset, I would like to point out that the term ‘Joint family property’ has been loosely worded in the plaint and the first appellate Court also referred to it as such. I would like to refer to the following excerpts from the famous treatise Mayne’s Hindu Law.
The Joint Family: Its Members.- It is evident that there can be no limit to the number of persons of whom a Hindu joint family consists, or to the remoteness of their descent from the common ancestor, and consequently to the distance of their relationship from each other. Unlike a corporation, the joint family has not legal entity distinct and separate from its members. The Hindu coparcenary is a much narrower body. A female member though, a member of the joint family, is not a coparcener. The term, ‘coparcenary’ and ‘coparceners’ though sanctioned by long usage, are not happily applied in the Mitakshara law and their use has been rightly criticised by Lord Dunedin in Baijnath Prasad’s case. For, coparcenary in the Mitakshara law is not identical with coparcenary as understood in English law: when a member of a joint family dies, “his right accresces to the other members by survivorship, but if a coparcener dies, his or her right does not accresce to the other coparceners, but goes to his or her own heirs”. When we speak of a Hindu joint family as constituting a coparcenary, we refer not to the entire number of persons who can trace descent from a common ancestor, and amongst whom no partition has ever taken place : We include only those persons who, by virtue of relationship, have the right to enjoy and hold the joint property, to restrain the acts of each other in respect of it, to burden it with their debts, and at their pleasure to enforce its partition. Outside this body, there is a fringe of persons possessing only inferior rights such as that of maintenance, which however tend to diminish as the result of reforms in Hindu law by legislation. Under Hindu law as obtaining in Nepal, it was held that a uterine brother can be a member of the joint family in the absence of evidence to the contrary. Nothing prohibits a Hindu father who married a Christian woman under the Special Marriage Act from taking the son by acknowledging him as a member of the joint family for purpose of tax laws. A child in the womb cannot be considered as a member for the purpose of assessment of the Hindu undivided family under the Income-tax Act which contemplates more than one member in actual existence during the year of account. Where in a Hindu undivided family consisting of only two members (father and minor son) the father dies reducing the total number of members to only one, the Hindu undivided family ceases to exist.”
The co-parcenary: Now it is at this point that we see one of the most important distinctions between a Mitakshara coparcenary and the general body of the undivided family. Suppose the property to all have descended from one ancestor, who is still alive, with five generations of descendants. It by no means follows that on a partition every one of these five generations will be entitled to a share. And if the common ancestor dies, so that the property descends a step, it by no means follows that it will go by survivorship to all these generations. It may go to the representatives of one or more branches, or even by inheritance to the heirs of the survivor of several branches to the total exclusion of the representatives of other branches. The question in each case will be who are the persons who have taken an interest in the property by birth. The answer will be, that they are the three generations next to the owner in unbroken male descent. Therefore, if a man has sons, grandsons, and great-grandsons, living, all of these constitute a single coparcenary with himself. Every one of these descendants is entitled to offer the funeral cake to him, and every one of them obtains by birth an interest in his property. But the son of one of the great-grandsons would not offer the cake to him, and is out of the coparcenary, so long as the common ancestor is alive. But while fresh links are continually being added to the chain of descendants by birth, so earlier links are being constantly removed from the upper end of the chain by death. As each fresh member takes a share, his descendants to the third generation below him take an interest in that share by birth. So the coparcenary may go on widening and extending, as long as its members include agnats descended from a common ancestor, irrespective of their degrees of agnatic relationship to each other. But this is always subject to the condition that no person who claims to take a share is more than three steps removed from a direct ascendant who has taken a share. Whenever a break of more than three degrees occurs between any holder of property and the person who claims to take next after that holder, the line ceases in that direction, and survivorship enures only to those collaterals and descendants who are within the limit of three degrees. This was laid down in two cases in Bombay and Madras.
Once the existence of joint family is not in dispute, necessarily the property held by the family assumed the character of a coparcenary property and every member of the family would be entitled by birth to a share in the coparcenery property unless any one of the coparceners pleads by separate pleadings, and proves that some of the properties or all other properties are his self-acquired properties and could not be blended in the coparcenary property. Coparcener having right in joint family property is competent to dispose of his share in property. However, challenge to execution of sale deed by other coparcener is not sustainable.”
12. A mere reference to the above would exemplify and demonstrate that if a Hindu dies leaving his self acquired property as well as his daughters and one son as in this case, the question of a coparcenary opening among them would not arise and that a joint family also would not arise from out of their relationship. However, instead of using the term that four daughters and one son of Potti Pillai jointly enjoyed the property after his death, in the plaint it has been loosely worded as though there was Hindu joint family status among them and that the property was enjoyed as such and the Courts below also referred in that manner. It is for the Court to understand the evidence in the proper perspective by separating the grain from the chaff and also applying the appropriate proposition of law.
13. Trite the proposition of law, is that consequent upon the death of a Hindu after 1956, relating to his self acquired properties, his children are the Class – 1 heirs. Accordingly if viewed, it is crystal clear that on the death of Potti Pillai his four daughters and one son became the co-owners of his properties which he purchased under Exs.A3 to A5.
14. At this juncture, I would like to point out that the plea of ouster should specifically be pleaded and proved. It cannot simply be presumed. I recollect the maxim – Judicis est judicare secundum allegata et probata It is the duty of a Judge to decide according to the facts alleged and proved.
15. The learned counsel for the defendants would invite the attention of this Court to paragraph No.22 of the written statement which runs thus:
“22. The 1st defendant and her husband they have enjoyed the property more than twelve years after the exchange deed in 1982 to the knowledge of the plaintiffs herein.”
(extracted as such)
and try to press into service the point that such versions could rightly be understood as a plea of ouster and prescription. I would like to indicate that such an inference is not possible. The specific plea of ouster cannot be inferred from the written statement by the Court unless it is specifically pleaded. I would highlight that the plea of prescription is one and the plea of ouster is another, even though both are sister pleas. Undoubtedly, consequent upon ouster there might arise prescriptive right, but it should specifically be pleaded. The general rule is that possession by one co-owner constitutes possession by another co-owner. Here, consequent upon the death of Potti Pillai, his four daughters and his one son became co-owners and not co-parcenars and in such a case, possession by one co-owner tantamounts to possession by another co-owner and unless ouster is pleaded and proved, the question of countenancing and upholding ouster would not arise.
16. I would like to recollect the decision of the Hon’ble Apex Court reported in in (2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others). An excerpt of it would run thus:
“10. 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”.
11. This brings us to the issue of mental element in adverse possession cases intention.
……………….
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.
18. On intention, Powell v.McFarlane is quite illustrative and categorical, holding in the following terms:
“If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess (‘animus possidendi’)”
* * *
If his acts are open to more than one interpretation and he has not made in perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner.
In my judgment it is consistent with principle as well as authority that a person who originally entered another’s land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner.
* * *
What is really meant, in my judgment, is that the animus possidendi involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the processes of the law will allow”.
19. Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and the plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of waiving (wilful) or omission (negligent or otherwise) of the right to defend or care for the integrity of property on the part of the paper-owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that does not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.
20. While dealing with the aspect of intention in the adverse possession law, it is important to understand its nuances from varied angles.
22. 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 Vs. 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.”
23. 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.
31. Inquiry into the starting point of adverse possession i.e dates as to when the paper-owner got dispossessed is an important aspect to be considered. In the instant case the starting point of adverse possession and other facts such as the manner in which the possession operationalised, nature of possession: whether open, continuous, uninterrupted or hostile possession, have not been disclosed. An observation has been made in this regard in S.M.Karim Vs. Bibi Sakina: (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. There is no evidence here when possession became adverse, if it at all did, and a mere suggestion in the relief clause that there was an uninterrupted possession for ‘several 12 years’ or that the plaintiff had acquired ‘an absolute title’ was not enough to raise such a plea. Long possession is not necessarily adverse possession and the prayer clause is not a substitute for a plea.”
32. Also mention as to the real owner of the property must be specifically made in an adverse possession claim.
33.In Karnataka Wakf Board it is stated: (SCC pp.785-86, para
12) “A plaintiff, filing a title suit should be very clear about the origin of title over the property. He must specifically plead it. In P.Periasami V. P.Periathambi this Court ruled that: (SCC p.527, para 5)
‘Whenever the plea of adverse possession is projected, inherent in the plea is that someone else was the owner of the property.’
The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Dealing with Mohan Lal V. Mirza Abdul Gaffar that is similar to the case in hand, this Court held: (SCC pp.640-41, para 4)
‘4.As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years i.e up to completing the period his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53 A, it goes without saying that he admits by implication that he came into possession of land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.'”
17. A mere perusal of the said judgment would exemplify that the right to property is a human right and it has been given such a recognition by the Hon’ble Apex Court and it cannot be lost sight of. As such, there occurred a sea change in the approach of the Court in appreciating the plea relating to ouster as well as prescriptive title and adverse possession. The maxim Nec vi Nec clam Nec precario : Not by violence, stealth or permission (In order that a person may acquire title to land by adverse possession, his possession has to be characterised by these attributes) also was considered by the Hon’ble Apex Court unless there is clinching evidence to display and establish that there was ouster and that the person concerned started enjoying the property from a particular period in his own capacity as owner openly and continuously over the statutory period to the exclusion of others, the question of assuming and presuming prescriptive right or ouster would not arise.
18. The learned counsel for the defendants would submit that the very fact that the Exchange Deeds emerged bereft of recitals concerning the alleged consent of the other co-sharers, would bespeak volumes to the effect that the Exchange Deeds emerged at the free will and volition of Mannar Pillai and not with the consent of the daughters of Potti Pillai and the first appellate Court was justified in holding so.
19. I would like to point out that normally in an exchange deed, one cannot expect that all the recitals regarding consent and other facts should be found spelt out. An Exchange Deed would only be to the effect that two owners agree for exchanging their respective properties. No doubt, there is no documentary evidence to prove that the plaintiffs gave consent for exchange. However, they would plead in the plaint as well as in their oral evidence that they gave consent for such exchange. In the absence of ouster, it should be presumed that the exchange was effected only for the benefit of all the co-owners. Simply because the property got changed, the status and character of the property did not get changed and this fact has not at all been considered by the first appellate Court. But the trial Court applied the correct proposition of law and appreciating the evidence decreed the suit.
20. Indubitably and indisputably, the deceased first plaintiff during the lifetime of Mannar Pillai stayed along with Mannar Pillai, because her husband died and she had no issues. As such, when the first plaintiff was virtually part of the household of Mannar Pillai, one cannot expect such a lady to seek partition. The other daughters of Potti Pillai, namely P2 to P4 were living in their respective husbands’ houses. The germane facts were not taken into account by the appellate Court and simply disagreed with the balanced finding of the trial Court. Simply because patta was got changed in the name of Mannar Pillai based on the exchange deeds, ouster cannot be inferred. It is a common or garden principle that patta would not confer title; at the most it can only be relied on to prove possession.
21. To the risk of repetition and pleonasm, but without being tautologus, I would like to point out that possession by one co-owner would enure to the benefit of the other co-owners also. Because exchange deeds and the patta stood in the name of Mannar Pillai, the Court cannot jump to the conclusion that Mannar Pillai became owner of the suit property.
22. The learned counsel for the plaintifsf would convincingly submit that even though Potti Pillai died in the year 1965 and the suit was filed during the year 1994, nevertheless it cannot be presumed that the plaintiffs abandoned the right over the suit property. I could also see that inasmuch as there was no proper pleadings, the trial Court also was justified in not framing an issue relating to ouster and prescriptive title. However, one issue was framed as to whether the suit was barred by limitation. I would point out that such an issue cannot be equated to the issue relating to ouster and acquiring of prescriptive title by adverse possession. Even then the trial Court considered the evidence and held that the suit proeprty belonged to all the co-sharers and decreed the suit. However, on mere technical grounds the appellate Court as cited supra, dismissed the suit by allowing the appeal after setting aside the judgment and decree of the trial Court.
23. The contention on the side of the defendants that there should have been a prayer for setting aside the exchange deeds are neither here nor there. The question of getting the exchange deeds set aside would not arise, because the plaintiffs do want the properties covered by the exchange deeds to be partitioned and they are not inclined to retrieve the properties which were exchanged. Hence in such a case, the plea raised on the side of the defendants is totally untenable. The first appellate Court while deciding the case should not have been oblivious of the practical realities prevailing among the close relatives in enjoying properties. The married daughters of Potti Pillai cannot be expected to live under one roof with Mannar Pillai and also enjoy jointly the properties and in such a case, such married daughters cannot be expected to produce any evidence more than what they have adduced to show that they were in joint possession as co-owners. In fact, the joint enjoyment of the properties established by the first plaintiff-Kanniyammal living with Mannar Pillai would certainly enure to the benefit of the plaintiffs that it is not as though the daughters of Potti Pillai were completely excluded or ousted from possession. During the time of Mannar Pillai no such dispute arose and the facts would bespeak to the said fact that only after his death, his widow Malliga/D1 meddled with the property to the detriment of the plaintiffs, which ensued in suing the defendants.
24. The non impleadment of the sons of Mannar Pillai would not be fatal to this case, as Malliga being the mother of them, has been adequately representing the interest of Mannar Pillai’s share and in such a case, I am of the view that the original suit also is not bad for non joinder of necessary parties. Since Ex.B2 dated 29.11.1994 emerged after the presentation of the plaint on 07.02.1994, the question of non impleading the alienees would not be fatal and they are bound by the judgment and decree of this Court based on the doctrine lis pendens.
25. Accordingly, the first substantial question of law is decided to the effect that the lower appellate Court was not justified in observing that the suit properties are not joint family properties.
26. The second substantial question of law is decided to the effect that the lower appellate Court was not justified in determining that the plaintiffs should have prayed for setting aside the Exchange Deed dated 12.12.1980.
25. In the result, the judgment and decree of the first appellate court are set aside and the judgment and decree of the trial Court are
restored. Accordingly, this Second Appeal is allowed. However, there shall be no order as to costs.
Gms
To
1. The Subordinate Judge, Cheyyar.
2. The Addl. District Munsif,
Vandavasi