IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1602 of 2008 and M.P.No.1 of 2009 1. Murugesa Gounder 2. Jayarama Pathar .. Appellants (Recorded Appellant 1 as LR of the deceased R7 vide order of Court dated 17.12.2009) vs. 1. Brindhavathi Ammal 2. Rajamanicka Padayachi 3. Adhilakshmi 4. Angamuthu 5. Neelavathi 6. Asothai 7. Muthammal 8. R.Abarajitham 9. P.Vasantha 10.K.Santha 11.R.Viswanathan 12.R.Ulaganathan 13.R.Jothi .. Respondents (RR8 to 13 brought on record as Lrs of the deceased R2 vide order of the Court dated 26.02.2010) This second appeal is focussed as against the judgment and decree passed in A.S.No.97 of 1993 on the file of the Principal Subordinate Judge, Villupuram dated 16.06.2008 reversing the judgment and decree passed in O.S.No.956 of 1985 on the file of District Munsif Court, Tirukkoilur dated 30.06.1992. For Appellants : Mr.S.V.Jayaraman,Sr.Counsel for Mr.P.Gopiraja For Respondents : Mr.A.E.Chellaiah, Sr.Counsel for Mr.C.Vasanthakumar Chellaiah J U D G M E N T
This second appeal is focussed by the original defendants 2 and 4, animadverting upon the judgement and decree dated 16.06.2008 passed in A.S.No.97 of 1993 by the learned Principal Subordinate Judge, Villupuram, reversing the judgment and decree of the learned District Munsif Court, Tirukkoilur in O.S.No.956 of 1985. 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 plaintiff/R1 filed the suit for partition seeking half share in the ‘B’ scheduled properties as ‘A’ schedule property is nothing but her wearing apparels to show that she was an indigent person as on the date of the filing of the suit.
(b) The written statement was filed by the defendants resisting the suit.
(c) Whereupon the trial Court framed the issues.
(d) The plaintiff-Brindhavathi Ammal examined herself as P.W.1 along with P.Ws.2 to 4 and Exs.A1 to A7 were marked. On the side of the defendants, D.Ws.1 to 5 were examined and Exs.B1 to B74 were marked.
(e) Ultimately the trial Court dismissed the suit. Being aggrieved by that, the plaintiff filed the appeal, whereupon the appellate Court reversed the judgment and decree of the trial court and decreed the suit.
3. Challenging and impugning the judgment and decree of the first appellate Court in decreeing the suit, the defendants 2 and 4 preferred this appeal on various grounds inter alia to the effect that the first appellate Court upset the judgment and decree of the trial Court not on sound grounds, but on misconception of law as well as misreading of evidence.
4. Accordingly, the defendants suggested the following substantial questions of law in the grounds of appeal:
“(1) Is the Lower Appellate Court correct and justified in reversing the decision of the trial Court?
(2) Is the Lower Appellate Court correct and justified in holding that plaintiff is the daughter of Vaidyalingam in the absence of any evidence?
(3) Is the Lower Appellate Court correct and justified in holding that the settlement deed Ex……is proved when provisions of Section 68 of the Evidence Act has not been complied with?
(4) Is the Lower Appellate Court correct and justified in holding that the defendants has not prescribed title by presumption especially when defendant has been in possession for over 4 decade and there is ouster?
(5) Is the Lower Appellate Court correct and justified in holding that the suit is not barred by limitation.”
(extracted as such)
5. My learned Predecessor framed the following substantial questions of law:
“(a) Is the Lower Appellate Court correct and justified in holding that the settlement deed is proved when provisions of Section 68 of the Evidence Act has not been complied with?
(b) Is the Lower Appellate Court correct and justified in holding that the defendants has not prescribed title by prescription especially when defendant has been in possession for over 4 decade and there is ouster?”
6. However, after hearing both sides, I am of the considered view that the aforesaid substantial questions of law have to be reframed as under:
(1) Whether the first appellate Court was justified in holding that the plaintiff/Brindhavathi Ammal is the daughter born to Vaithilingam and Porkalaiammal in the wake of the available evidence?
(2) Whether the first appellate Court was justified in holding that the Settlement Deed-Ex.A1 was passed in the absence of non-compliance with Section 68 of the Indian Evidence Act?
(3) Whether the sale deed-Ex.A6 executed by Porkalaiammal along with her one major son/D1 and her minor son Vaithilinga Gounder in favour of D3 in selling the 2nd item of the ‘B’ scheduled property, could be challenged by D1 himself in these proceedings?
(4) Whether the plea of adverse possession as pleaded by the defendants, was erroneously rejected by the first appellate Court ignoring the alleged fact that the defendants have been in possession and enjoyment of the suit properties for over four decades?
(5) Whether the plaintiff could be considered as the legal heir of the deceased Venkatachala Gounder entitled to seek partition during the lifetime of Porkalaiammal (P.W.3), the widow of Vaithilinga Gounder?
(6) Whether there is any perversity or illegality in the judgment and decree of the first appellate Court?
SUBSTANTIAL QUESTION OF LAW NO.1:
7. I 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.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL
(iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI]
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.
8. The trial Court as well as the appellate Court gave concurrent finding regarding the fact that Brindhavathi Ammal happened to be the daughter of deceased Vaithilingam and Porkalaiammal based on the Birth Certificate and also based on the evidence given by P.Ws.1 to 4. Ex.A3 is the Birth Certificate of Brindhavathi Ammal which would show that a female child was born to Porkalaiammal on 30.06.1953. However, father’s name is not found specified therein for which convincingly and correctly the learned Senior Counsel for the plaintiff would explain and expound that since the child happens to be the posthumous child, so to say the child was born after the death of the father of the child, her father’s name was not found mentioned and only the mother’s name was mentioned and that fact also is borne by Ex.A2 which would reveal that the father died on 06.01.1953. Ex.A7 would reveal that earlier the couple Vaithilingam and Porkalaiammal gave birth to a daughter on 06.07.1951 and that child died. The cumulative effect of those documents coupled with the oral evidence is that the plaintiff happened to be the daughter of deceased Vaithilingam and Porkalaiammal. There is also one important factor which should be taken note of. As per the evidence on plaintiff’s side, Porkalaimmal, the mother of the plaintiff got married for the second time even while the plaintiff was a child and in fact, on her remarriage the plaintiff was left in the custody of the first defendant. The fact also remains that the plaintiff was given in marriage at the instance of the first defendant. These facts also weighed very much in the minds of the Courts below and they gave concurrent finding to the effect that there is no point on the part of the appellants/defendants in disputing the paternity of the said child. It is a trite proposition of law that as against a concurrent finding of fact the question of interference in the Second Appeal would not arise.
9. At this juncture, I would like to recollect the following:
“24. An excerpt from the decision of the Hon’ble Apex Court reported in AIR 1971 SC 2352 (Perumal Nadar (dead) by Legal Representative vs. Ponnuswami Nadar (Minor) would run thus:
“12.Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrates court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced.
13.In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana3 in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiffs mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi4 that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory, and since on the basis of that proof there was evidence on the record that the plaintiffs mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access.”
(emphasis supplied)
(ii) An excerpt from the decision of the Hon’ble Apex Court reported in AIR 1993 SC 2295 (Goutam Kundu vs. State of West Bengal and another) would run thus:
“21. above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.
(emphasis supplied)
22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.
(emphasis supplied)
23. Dukhtar Jahan (Smt) v. Mohammed Farooq this Court held: (SCC p. 629, para 12)
… Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.
(emphasis supplied)
24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. Access and non-access mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation.
(emphasis supplied)
25. The quintessence of the legal point that could be understood from the aforesaid decisions is that the presumption contemplated under Section 112 of the Indian Evidence Act is only a rebuttable one. It is therefore, just and necessary to extract the relevant Section, viz., Section 112 of the Indian Evidence Act.
“112. Birth during marriage, conclusive proof of legitimacy The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, them other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”
(emphasis supplied)
10. The underlined last clause of Section 112 of the Indian Evidence Act gains utmost significance and importance so far this case is concerned. The perusal of the records and my discussion supra would axiomatically and obvioulsy highlight that the deceased Vaithilingam and Porkalai Ammal (PW3) happened to be the husband and wife and through their wedlock alone, the plaintiff got conceived in the womb of Porkalaiammal and the death certificate (Ex.A2) of Vaithilingam and the birth certificate (Ex.A3) of Brindhavathi Ammal would amply establish the same coupled with the oral evidence. Absoultely, there was no rebuttal evidence from the defendants’ side that the couple had no opportunity to give birth to the plaintiff as their child.
11. The aforesaid two decisions, while positing the legal proposition and the concept, which got embedded and envisaged in Section 112 of the Indian Evidence Act, highlighted and spotlighted that the evidence to rebut the presumption as contemplated under Section 112 of the Indian Evidence Act should not be mere preponderance of probabilities as it is normally adhered to in adjudication of civil cases, but strong preponderance of evidence.
12. The fact also remains that as against the finding of the trial court upholding the claim of the plaintiff that she is the daughter of the Vaithilingam, no cross appeal was filed by the defendants and in fact, only the plaintiff filed the first appeal.
13. I recollect and call up the following decision of the Hon’ble Apex Court reported in 2010(7) SCC 717 [ Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak]. An excerpt from it would run thus:
“24. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. ………………………”
14. In the aforesaid decisions, the Hon’ble Apex Court zealously pointed out that the Court should not encourage bastardising a child and unless there is clinching evidence to display and demonstrate that a child was not born to the couple, the question of bastardising a child would not arise. As such keeping in view the aforesaid principles, I am of the view that no interference in the Second Appeal is warranted on that issue.
According the first substantial question of law is decided to the effect that the first appellate Court was justified in holding that the plaintiff/Brindhavathi Ammal is the daughter born to Vaithilingam and Porkalaiammal in the wake of the available evidence.
SUBSTANTIAL QUESTION OF LAW NO.2:
15. The perusal of Ex.A6 would demonstrate and display as to how D1-Mayagounder, the father of D2-Murugesa Gounder himself being a major at the time of execution of the sale deed dated 16th September 1941 (Ex.A6) signed the said sale deed along with his mother Ponnammal, who signed on her behalf and on behalf of her minor son Vaithilingam, the father of the plaintiff. In the said sale deed it is found specified that on the strength of the Settlement Deed-Ex.A1 dated 30.10.1934, the vendors got the property and in such a case, it is highly unjustifiable and wrong on the part of the appellants/defendants to contend as though the Settlement Deed-Ex.A1 should have been proved in accordance with Section 68 of the Indian Evidence Act and that there was no settlement as contained in Ex.A1. The first appellate Court in para No.15 of its judgment gave its finding correctly that Venkatachala Gounder had right to execute the settlement deed. The said settlement deed and the sale deed as contained in Exs.A1 and A6 respectively are also ancient documents within the meaning of Section 68 of the Indian Evidence Act. This is a fitting example as to how the defendants herein went to the extent of challenging and gainsaying in the litigative process the well established facts also, which attitude should not be encouraged.
Accordingly, the second substantial question of law is decided to the effect that Ex.A1 is valid and proved and it is not hit by Section 68 of the Indian Evidence Act.
SUBSTANTIAL QUESTION OF LAW NO.3:
16. The contention on the side of the plaintiff is that the settlement deed in favour of Ponnammal conferring life estate cannot be construed as one empowering her to sell the second item of the suit property along with her one major son-D1 and her minor son-Vaithilinga Gounder and that has to be ignored and the second item also should be considered for being partitioned along with other items of the properties.
17. Whereas, the learned Senior Counsel for the appellants/defendants would contend that it is not as though the said Ponnammal, the life estate holder as per the settlement deed alienated the property unilaterally, but on the other hand she along with the vested reminders, so to say the absolute owners, namely one major son and one minor son sold the property as early as in the year 1941 and that cannot be found fault with.
18. In this connection, I am of the considered view that the first appellate Court committed a serious error in not applying the correct proposition of law. The first appellate Court did not consider that aspect of the matter. The fact also remains that those absolute owners/vested reminders did not challenge the sale as contained in Ex.A6 and in such a case it would not lie in the mouth of the plaintiff now to challenge the very sale deed-Ex.A6 at this distant point of time. In fact the sale was effected in the year 1941 and the suit was filed in the year 1985. The law also is well settled in this regard that if any alienation by a life estate holder is erroneous, then the absolute owners/vested reminders should file a suit seeking for annulment of the same within three years after attaining majority, but in this case no such action was undertaken by Vaithilinga Gounder, the father of the plaintiff. In such a case, the plaintiff was not justified in insisting that the second item of the ‘B’ scheduled properties also should be subjected to partition along with other properties.
Accordingly the third substantial question of law is decided to the effect that the first appellate Court was not justified in holding that the sale deed-Ex.A6 executed by Porkalaiammal along with her one major son and one minor son in favour of D3 in selling the 2nd item of the ‘B’ scheduled properties was invalid.
SUBSTANTIAL QUESTION OF LAW NO.4
19. The learned Senior Counsel for the appellants/defendants would argue that for more than four decades the appellants were enjoying the suit properties other than the said item 2 which was already sold and in such a case the plaintiff cannot now come and make any claim over it.
20. At this juncture, I recollect the following decision of the Hon’ble Apex Court reported 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.'”
Unless ouster is pleaded and proved in a case of this nature, the question of adverse possession would not arise. I would like to distinguish and differentiate between the mere plea of adverse possession from that of the plea of ouster coupled with adverse possession and prescriptive title.
21. At this juncture, I would like to extract hereunder the relevant portion of the written statement:
VERNACULAR (TAMIL) PORTION DELETED
A plain reading of it would display and demonstrate as to how the defendants tried their level best to give a distorted and false picture of the entire facts. The defendants would try to project a case as though the properties belonged to deceased Veeramuthu Gounder son of Venkatachala Gounder; that the first defendant acquired title by adverse possession forgetting for the moment that D1 himself in Ex.A6 dated 16.09.1941 candidly and categorically admitted about the genuineness of Ex.A1, the settlement deed executed by Venkatachala Gounder and in such a case the plea of adverse possession turned out to be totally a false one and it cannot be pleaded either as against P.W.3-Porkalaiammal or as against the plaintiff. In fact the defendants went to the extent of pleading falsely as though there was no marriage at all between P.W.3-Porkalaiammal and Vaithilinga Gounder.
22. The transfers made by D1 and D2 in favour of other defendants would not bind either P.W.3-Porkalaiammal or his daughter as they were not parties to such documents. The possession by one co-owner would enure to the benefit of other co-sharer, unless the plea of ouster is pleaded and proved. In the wake of the Hon’ble Apex Court’s decision cited supra, the tenuous, weak, meak and bleak evidence available on record as pointed out by the first appellate Court would not enure to the benefit of the defendants to claim adverse possession.
23. The learned Senior Counsel for the respondent/plaintiff would contend that as per evidence, it has been proved and established that since the plaintiff was a child, she was along with D1 and she was brought up in the house of the first defendant and she was given in marriage only during the year 1973 by D1, and as such the alienations made during 1975 and subsequently would not attract the plea of prescription or adverse possession. The alienation made by D1 and D2 would not confer any right on the alienees automatically and the alienees have to work out their equities only during final decree stage by making claims in respect of the half share of their transferors, namely D1 and D2.
24. Venkatachala Gounder’s daughter Ponnammal had only two sons, namely D1-Mayagounder and Vaithilinga Gounder and the plaintiff is the only surviving daughter of Vaithilinga Gounder and Vaithilingam’s wife Porkalaiammal-P.W.3 also is alive. Whereas, the said D1-Mayagounder died and his heir is the first appellant/D2. There could be no co-parcenary between D1 and his brother Venkatachala Gounder also as the suit properties were obtained by them only from the maternal grand father as per Ex.A1-the Settlement Deed. As such from the proven relationship it is clear that originally there were only two sharers, namely Mayagounder and Vaithilingam and Mayagounder’s line is represented by Murugesa Gounder/first appellant herein and the line of Vaithilingam is represented by the plaintiff’s heirs and as such, each one is entitled to half share in the properties in ‘B’ schedule of the plaint other than second item therein.
Accordingly, the fourth substantial question of law is decided to the effect that the first appellate Court was justified in rejecting the defendants’ plea of adverse possession.
SUBSTANTIAL QUESTION OF LAW NO.5:
25. Incidentally, this Court raised the point as to whether the plaintiff, who happened to be the daughter of Vaithilingam, during the life time of Vaithilingam’s widow, namely Porakalaimmal could claim to be the legal heir. At this juncture, a few admitted facts are absolutely necessary. Vaithilingam died in the year 1953. As on the date of the death of Vaithilingam, the plaintiff was not even born, as she happened to be the posthumous child of Vaithilingam. In such a case, Vaithilingam’s wife-Porkalaimmal being the widow was entitled to half share of Vaithilingam in view of the Hindu Women’s Right to Property Act, 1937 and the Madras Hindu Women’s Rights to Property (Extension to Agricultural land) Act, 1947. P.W.3 the widow of Vaithilingam herself on her part and the other witnesses cogently deposed that P.W.3 got remarried only long after 1956 so to say long after the commencement of the Hindu Succession Act and in such a case the property which got vested on her as per Section 14(1) of the Hindu Succession Act cannot be construed as got divested. Furthermore, the next of kin as per the old Hindu law the plaintiff was born even in the year 1953.
26. It is well known that Section 14(1) of the Hindu Succession Act confers absolute right on the females, whereas the earlier Hindu Women’s Right to Property Act, 1937 and the Madras Hindu Women’s Rights to Property (Extension to Agricultural land) Act, 1947 conferred only limited estate. Accordingly if viewed Porkalaiammal became the absolute owner of the half share of Vaithilingam. The plaintiff’s averment that her mother (P.W.3) got remarried and P.W.3’s deposition about her remarriage, would in no way deprive P.W.3 of the said property vested in her, in view of settled legal position. The Hindu Widows’ Re-Marriage (Repeal) Act, 1983 would repeal the earlier Act, namely the Hindu Widow’s Remarriage Act, 1856. The Objects and Reasons appended to the Repeal Act, 1983 would run thus:
“STATEMENT OF OBJECTS AND REASONS
The pioneering zeal of Eshwarchundra Sharum who by his orudition later on earned the sobriquet “Vidyasagar” resulted in the enactment of the Hindu Widows’ Re-marriage Act in 1856 in spite of the cussedness of many a Sanat-anist. Nearly a hundred years later, four more Acts, viz., the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956, and the Hindu Adoptions and Maintenance Act, 1956, making fundamental and radical changes in the personal laws of Hindus, were passed.
2. It is now judicially settled that once a widow succeeds to the property and acquires absolute right under the Hindu Succession Act, 1956, she cannot be divested of that right on re-marriage. All the same, certain provisions of the Act making references to the disabilities imposed on childless widows under the Dayabhaga School now suffer from a comparable obsolescene and the Law Commission in its 81st Report has recommended that the Hindu Widows’ Re-marriage Act, 1856, having become obsolete, should be repealed so as to foreclose any possible arguments based on the construction of the provisions of this Act and the later Acts.
3. Hence this Bill.”
(emphasis supplied)
27. A mere reading of that would clearly evince and evidence that the act by itself is not creating or extinguishing any right but only recognises the case laws emerged anterior to 1983. The case laws as has been already pointed out supra was to the effect that consequent upon commencement of Section 14(1) of the Act, the limited estate under the Hindu Women’s Right to Property Act got enlarged into one of absolute right and it virtually obliterated the embargoes in the provisions of the Hindu Widow’s Remarriage Act, 1856 and in such a case Porakalaiammal happened to be the absolute owner.
28. The learned Senior Counsel for the appellants/defendants would submit that in the event of this Court finding that the plaintiff was not the legal heir of Venkatachala Gounder, but only the widow Porkalaiammal is the legal heir, then the original suit as such has to be dismissed.
29. I would like to highlight that such an argument cannot be countenanced for the reason that Porkalaiammal herself was examined as one of the witnesses on the plaintiff’s side as P.W.3 and she never made any claim for herself, but on the other hand she asserted that her daughter/plaintiff is entitled to half share in the properties as per the plaint.
30. The plaintiff being the daughter of Vaithilingam cannot be treated as an alien to the property involved in this case even before the commencement of the Hindu Succession Act, 1956, because the law is well settled to the effect that consequent upon the death of a male Hindu, in this case, her father Vaithilingam in the year 1953, his widow Porkalaimmal happened to be the person entitled to widow’s estate and in her absence, her daughter – the plaintiff would be the legal heir. It is not as though the plaintiff should not be construed as one of the legal heirs of deceased Vaithilingam; it is all a mere question whether a widow will take or in the absence of widow her daughter will take. In this case, the widow of Vaithilingam, namely Porkalaiammal who examined herself as P.W.3 is alive and her daughter is the plaintiff herein and in such a case, by no stretch of imagination it could be construed that the suit should be dismissed on any account.
31. An excerpt from the famous Treatise ‘Mulla on Hindu Law’ would run thus:
“43. ORDER OF SUCCESSION AMONG SAPINDAS:
….. …….. …….. ……
5. Daughter:
(i) Priority Among Daughters
Daughters do not inherit until all the widows are dead. As between daughters, the inheritance goes first to the unmarried daughters, next, to daughters who are married and ‘unprovided for’, ie, indigent, and lastly, to daughters who are married and are ‘enriched’, ie, possessed of means. A married daughter may be a widow. No member of the second class can inherit while any member of the first class is in existence, and no member of the third class can inherit while any member of the first or the second class is in existence. The rule about one married daughter excluding the other married daughter from inheritance comes into operation, only if one daughter is indigent and the other is possessed of wealth. It does not apply where both the daughters are financially well off and well placed in life. The rules of preference are those stated above and there is no rule of preference that a daughter who is without issue is to be preferred to one with issue. Nor is there any rule that a daughter who is married to an idol and leads the life of a prostitute is to be preferred to her married sisters.
(ii) Survivorship
Two or more daughters of a class take the estate jointly as in the case of widows, with rights of survivorship. Any one daughter may alienate her life-interest in the property, but not so as to affect the rights of survivorship of other daughters. Moreover, like widows, daughters may enter into any agreement regarding their respective rights in their father’s estate, provided such agreement does not prejudice the rights of reversioners. They may divide the estate merely with a view to convenient enjoyment, or, retaining the right of the survivor, to take the whole on the death of one of them, or they may agree that the right of survivorship should be extinguished as between themselves. The agreement may be effected orally and without a registered writing.
(iii) Limited Estate
The daughter takes a limited interest in the estate of her father corresponding to the widow’s estate. On her death, the estate passes not to her heirs, but to the next heirs of her father. The next heirs of the father are called reversioners. As to Bombay state, see note (iv) below.
Where an unmarried daughter of the deceased inherits one half of the property of her father, and the deceased had died prior to coming into force of the Hindu Succession Act, the daughter inherits only a limited estate which, according to the rules of Mitakshara succession, would pass on to the next male heir of the deceased on such daughter’s death and the sister of such deceased unmarried daughter cannot claim any share in such property.
Section 14 of the Hindu Succession Act 1956, subject to certain qualification, confers full heritable capacity on a female heir in respect of the entire property acquired by her, whether before or after the commencement of the enactment.
Certain excerpts from Mayne’s Hindu Law are as under:
561. Second marriage: The second marriage of a widow was formerly unlawful, except where it was sanctioned by local or caste custom. In all cases, whether it was permitted by usage or otherwise, second marriage entailed the forfeiture or divesting of the widow’s estate, either as being a single instance of incontinence, or as necessarily involving degradation from caste. Remarriage of widows was legalised in all cases by the Hindu Widows’ Remarriage Act, 1856. The Act provided that all rights and interests which a widows had in her deceased husband’s estate shall cease and determine on her remarriage as if she had then died. The 1856 Act has been repealed by the Hindu Widows’ Remarriage (Repeal) Act, 1983. It is now judicially settled that once a widow succeeds to the property and acquires absolute right under the Hindu Succession Act, 1956, she cannot be divested of that right on remarriage. See also Section 24 of the 1956 Act.
Absolute property unaffected.- Section 2 of the Act has no effect on property belonging to the widow absolutely on the date of the remarriage. As Rajamannar, J. Observes: “The words “as if she had then died” in the section supply the criterion for adjudicating on the rights and disabilities of the widow on remarriage. All the results which would follow the remarriage are results which would ensue if she had died on the date of the remarriage. In other words, if she had only a limited and life interest, then that would cease; but if she had an absolute estate, that would not cease”. It was accordingly held that property settled on a widow absolutely in lieu of her claim to maintenance is not liable to forfeiture on her remarriage.
562: Daughter: The daughter comes next to the widow, taking after her as well as in default of her, except where by some special local or family custom, she is excluded. Of course, daughters inherit only on the death of the last surviving widows.
The view of Asahaya, Medhatithi as Vijnanesvara is that a maiden daughter is entitled along with the brothers to a share in the joint estate. Katyayana, Parasara and Devala state that an unmarried daughter succeeds in preference to a married daughter, Katyayana making a further distinction between an unendowed and endowed daughter. Brihaspati says that a daughter married to a man of the same caste as her own shall inherit her father’s property, whether she may have been appointed or not.”
32. An affidavit of Porkalaiammal also was filed before this Court in order to iron out the creases and Porkalaiammal is not at all claiming any right over the properties and she signified her acceptance that the decree could be in the name of the plaintiff herself and the learned counsel for the appellants made endorsement objecting to the contents of the affidavit. If at all there could be any dispute over the half share of Vaithilingam, then it could only be between Porkalaiammal and Brindhavathi Ammal, the plaintiff herein and both of them are sailing together and Porkalaiammal by her conduct clearly asserted that she was not making any claim to the property, but on the other hand, her only the next of kin and legal heir namely the plaintiff should enjoy the said half share in the suit properties.
33. At this juncture, I recollect the maxims:
(1) Boni judicis est ampliare jurisdictionem It is the part of a good judge to enlarge (or use liberally) his remedial authority or jurisdiction.
(ii) Boni judicis est ampliare justitiam It is the duty of a good judge to enlarge or extend justice.
(iii) Boni judicis est lites dirimere, ne lis ex lite oritur, et interest reipublicae ut sint fines litium It is the duty of a good judge to prevent litigations, that suit may not grow out of suit, and it concerns the welfare of a state that an end be put to litigation.
Accordingly, the fifth substantial question of law is decided to the effect that the plaintiff could be considered as the legal heir of the deceased Venkatachal Gounder entitled to seek partition during the lifetime of Porkalaiammal (P.W.3), the widow of Vaithilinga Gounder.
33. The sixth substantial question of law is decided to the effect that since both the Courts below failed to take into account the aforesaid points discussed supra, interference in the Second Appeal is warranted.
34. In the result, the Second Appeal is partly allowed as under:
The original suit shall stand dismissed regarding the second item of the ‘B’ scheduled properties in the plaint and in respect of the remaining items of suit properties the original suit shall stand decreed that the plaintiff on the one side and the second defendant on the other side are entitled to half share each. Accordingly preliminary decree shall follow. The plaintiff is at liberty to file necessary application under Order 20 Rule 12 of CPC to get the mesne profits assessed from the date of suit till payment of her share by D2. The plaintiff is also at liberty to file necessary application to get final decree in accordance with the preliminary decree, after getting appointed an Advocate Commissioner as per law. The purchasers from the defendants 1 and 2 are at liberty to work out their equity during final decree proceedings in the half share of their vendors.
However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
Gms
To
1. The Principal Subordinate Judge, Villupuram.
2. The District Munsif Court,
Tirukkoilur