ORDER
1. Plaintiff in O.S.No.406 of 1988 on the file of District Munsif Court, Chengalpattu is the appellant.
2. Material, averments in the case could be summarised thus :
One Thulikkanam had four sons by name Chinnaikuzhanthai alias Chakkarai, Murugan, Veerabathran and Chinnappan. Chinnakuzhanthai had four daughters by name Kuppammal, Chinnakannammal, Theivanai and Vembuliammal. Theivanai and Vembuliammal are alive but they are dumb. Thendavarayan was the only son of Chakkarai and his wife was one Lakshmi. They had no issues. Plaintiff is the son of Chinnakannammal. One of the sons of Thulikkanam by name Veerabathran had four sons by name, Gopal, Arunachalam, Balaraman and Nagooran. Arunachalam is the first defendant and Balaraman and Nagooran are defendants 5 and 6 in the suit. Son of Nagooran is the 7th defendant. Arunachalam’s legal heirs are defendants 2 to 4 and 8 to 11 in the suit.
3. According to plaintiff, he has obtained title to the property on the basis of Ex.A1 executed by Gopal and Chinnappan. Gopal is the son of Veerabathran and Chinnappan is the son of Thulukanam. According to plaintiff the property belonged to them and the same was settled in favour of plaintiff. It is further averred that defendant 1, 5 and 6 have also attested the document after knowing the contents of the same. Therefore they are estopped from questioning the right of plaintiff over the property.
4. The reason for filing the suit is that they are interfering with the right of plaintiff and also trespassed into the property. Suit was therefore laid to declare the title of plaintiff and for permanent prohibitory injunction restraining defendants from interfering with his possession.
5. In the written statement filed by defendants, they denied the title of plaintiff. According to them Ex.A.1 is void ab initio and executants did not have any right over the plaint schedule property.
6. In the additional written statement, they further took a contention that there was oral partition in the family after the death of Thulukanam and plaint property was allotted to the share of Chakkarai. Chakkarai had a son by name Thandavarayan and he had married one Lakshmi Ammal. On the death of Chakkarai, plaint property devolved on his only son Thandavarayan. During his life time, he has executed a settlement deed, which is also registered. That is dated 3.8.1957 Ex.B1. As per the said deed, Thandavarayan had divided the property into three schedules. ‘A’ Schedule to go to his mother to be enjoyed by her lifetime and then to his wife Lakshmi Ammal absolutely. ‘B’ Schedule was bequeathed to his wife Lakshmi Ammal. ‘C’ schedule property was to be given to plaintiff herein on condition that he should marry his sister-in-law’s daughter by name Raniammal. It is farther provided in the document if the condition is not complied with, Kannappan will not be getting the right over the ‘C’ Schedule and Lakshmi Ammal will be the absolute owner. Kannappan did not marry Raniammal and consequently, Lakshmi Ammal continued to be the owner of the C Schedule also. After the death of Thandevarayan, Lakshmi Ammal became absolute owner of the property of all the schedules. She died in testate and had no issues. The properties will have to devolve as per Hindu Law and if so, persons who have executed Ex.A1 will not have any right or at
any rate will have small share over the entire item. According to them they are in possession of the property as owners and plaintiff is not entitle to get injunction nor declaration as prayed for.
7. On the basis of above pleadings, trial court as per judgment dated 10.7.1998 decreed the suit. Trial court hold that defendants have not proved the oral partition and since there is attesting witnesses to Ex.A1, they cannot deny the title of plaintiff. The main reason for decreeing the suit was that defendants 1, 5 and 6 have attested Ex. A1 fully knowing the contents of the deed and therefore they are estopped from a questioning the title of plaintiff.
8. The matter was taken in appeal before the lower appellate court in A.S. No.9 of 1999. Lower appellate court reconsidered the question and came to the conclusion that plaintiff has miserably failed to prove the title to property. The suit was dismissed by allowing the appeal. Lower appellate court held that as per Ex.B1, property absolutely belonged to Thandavarayan and on his death, his widow was the absolute owner Neither Chinnappan nor Gopal had any right over the property. Mere attestation will not confer any title on plaintiff.
9. In the second appeal, learned counsel for appellant raised the following substantial questions of law
1. Whether the suit property is belonging to plaintiff or not ? (or) whether the plaintiff is having title over the suit properties or not?
2. Whether the plaintiff has been occupying and’ enjoying the suit property or not ? Whether the plaintiff is in adverse possession of the suit property from 1966 to 1988 and then or note?
3. Whether the plaintiff is having valid right under the settlement Deed Ex.A1 executed by the paternal uncle Mr.Gopal and Mr.Chinnappan or not ? whether the settlor are having valid right over the suit properties in Ex.A1 in favour of the plaintiff under Hindu Succession Act 16 or not ?.
4. Whether the attesting witnesses PW2 Krishnan and D1, D5 and D6 attested in Ex.A1 are correct or not ? whether the attesting witness are correct under section 68 of Evidence Act or not ?.
10. I wilt first consider the 4th question, Lower appellate court on the basis of various decisions held that the attestation of the document will not amount to estoppel.
11. In Banwari lal v. Sukhdarshan, their Lordships held thus,
“….Besides, estoppel is but a rule of evidence and accept in cases like those under Section 43 of the Transfer of Property Act, when a grant is fed by estoppel, the rule does not operate to create interest in property regarding which the representation is made …”
12 . According to me, plaintiff has no case that defendants I, 5 and 6 conveyed the property to him. His only case is that in the document executed by Gopal and Chinnappan, they attested. On the basis of the decision of
Honourable Supreme Court, only ground on ‘which title could be obtained under the principle of estoppel is under sec. 43 of the Transfer of Property Act. Since defendants have not conveyed any right plaintiff cannot say that he has got title to the property as against defendants.
13. The only question is whether by attestation alone plaintiff got tide? Mere attestation of a document without knowing it a contents will not amount to estoppel. Even if they are aware of the contents of the document and have attested the same, in view of the decision of the Honourable Supreme Court, plaintiff cannot get any right over the property. That apart, lower appellate court has considered this in para 19 or its Judgment as to how defendants are estopped from questioning the tide of plaintiff. Lower appellate court as a final court on fact finding, on appreciation of evidence has held that there is no evidence to show that defendants 1, 5 and 6 have attested Ex.A.1 after fully knowing its contents and they have also acknowledged the right of Gopal and Chinnappan. One of the attestors has been examined as PW2. Even he has not spoken that defendants 1, 5 and 6 have attested Ex.A1 fully knowing its contents. Same is the case of PW3, who is also another attestor. Lower appellate court, has entered a finding that the contents of Ex. A1 was not brought to the knowledge of the attesting witnesses, viz, defendants, 1, 5 and 6.
14. Lower appellate court has further held that even plaintiff was claiming property, only after recognising the title of Lakshmi Ammal as per patta No.49. To prove that executants of Ex. A1 did not have any right over the property. Ex.B1 is relied on by defendants. Even plaintiff during his cross examination admitted Ex.B1. If Thandavarayan was the last owner of the property, neither Chinnappan nor Gopal will be the sole heirs so as to execute Ex.A1. EX.B1 was executed by Thandavarayan gifting the property to his wife and mother. Provision is also made to plaintiff on certain condition. Plaintiff did not accept the same. Even in the plaint, he is not claiming right under Ex.B1. He has also not claimed right as member of the family. Entire suit is based only on Ex. A1 as if Chinnappan and Gopal are the sole owners of the property.
15. One thing that is conspicuously absent in Ex.A1 is neither Chinnappan nor Gopal stated the source of title in the deed. Plaintiff is also not in a position to explain how Chinnappan and Gopal obtained right over the property. That is why, plaintiff relies only on attestation by defendants 1, 5 and 6 to contend that on the principle of estoppel his title cannot be denied.
16. Both on the question of fact and on law, lower appellate court has rightly come to the conclusion that ExA1 is invalid document and the same will not confer title on plaintiff.
17. An argument was also taken by learned counsel for appellant that he has prescribed tide by adverse possession. I do not think that a specific pleading has been raised in that regard, except for a vague statement that even if any other person got, title, he prescribed title by adverse possession. When plaintiff is recognising title only by him and he is claiming title in vendors, he cannot say that he has got animus to hold the property against others. Only when he admits that another person got title; the question of prescribing title
by adverse possession will arise. In S.M.Karim v. Bibi Sakina, their Lordships said as to how to plead and prove adverse possession. That pleading is also not in this case from the various documents, it could be seen, defendants are also in possession of the property. Apart from the same, parties are also close relations. Being close relations something more is to he proved to prescribe title by adverse possession than a case between two strangers. Animus to hold the property against relations must be brought to their notice. On Lakshmi Ammal’s death, these defendants also will be co-owners along with plaintiff. Naturally ouster will have to be proved to the knowledge of defendants. Lower appellate court as final fact finding court has hold that plaintiff has failed to prove his exclusive possession.
18. I do not find any ground to interfere in the conclusion reached by the lower appellate court while dismissing the suit.
19. In the result, the second appeal is dismissed. However, without any order as to costs. Consequently, C.M.P.No.11011 of 1999 is also dismissed.