Ramayya Koundan v. Pechi Ammal Koundachi — 1954 DIGILAW 123 (KER)

Judgment :- 1. Defendants 2 and 3 in O.S. 346 of 1123 on the file of the Chittur Sub-court are the appellants in A.S. No. 498 of 1951. Plaintiff in O.S. No. 366 of 1123 of the same court, who is the second defendant in O.S. No. 346 of 1123, is the appellant in A.S. No. 1086 of 1951. He is also the plaintiff in O.S. No. 367 of 1123 and the appellant in A.S. No. 1087 of 1951. 2. Pechiammal, the first plaintiff in O.S. No. 346 of 1123, is the daughter of one Arunachala Goundan who died in 1118. Arunachala's wife, Athakkal, died in 1114. The first plaintiff is their only issue. The property which is the subject matter of the suit, 11/2 valloms of garden land, was purchased along with other properties in 1082 in the name of one Chennimala Goundan, a relative of Arunachala Goundan. In Thulam 1087 Chennimala executed two sale deeds in respect of the properties, one in favour of Arunachala and the other in favour of Athakkal. The sale to Athakkal related to 31/2 valloms of garden land and 20 paras of paddy land. The property in dispute in O.S. No. 346 of 1123 forms part of this 31/2 valloms of garden land. The properties which are the subject matter of the other two suits, viz., O.S. Nos. 366 and 367 of 1123, also form part of the properties sold to Athakkal by Chennimala. In 1091 there was a partition in the family of Arunachala, and the properties comprised in the sale deed in favour of Atthakkal were included in that partition and were allotted to the share of Arunachala Goundan. The second defendant, Ramayya Gounda, and the third defendant, Sivamala Goundan, are the brothers of Arunachala Goundan. The second plaintiff, Venkitachala Goundan, is the son of Rangaswamy Goundan, who is a cousin of Arunachala Goundan. In Mithunam 1113 Athakkal executed a registered will Ext. A, bequeathing the properties included in the sale deed in her favour to her daughter the first plaintiff. The second plaintiff, Venkitachala Goundan, is the son of Rangaswamy Goundan, who is a cousin of Arunachala Goundan. In Mithunam 1113 Athakkal executed a registered will Ext. A, bequeathing the properties included in the sale deed in her favour to her daughter the first plaintiff. On 3.2.1120 the first plaintiff filed a suit against the first defendant in the Chittur Munsiff's Court as O.S. No. 23 of 1120 for recovery of possession of the 11/2 valloms of garden land which is the subject matter of O.S. No. 346 of 1123 alleging that she became entitled to the property under the will executed by her mother and that she leased it to the first defendant through her father on an annual rent of Rs. 180/-. The first defendant in that suit, who is the same as the first defendant in O.S. No. 346 of 1123 contended that the property belonged to Arunachala, that Ramayya leased it to him on behalf of Arunachala, that the first plaintiff had no title to the property and that the lease alleged in the plaint was not true. After the filing of the suit, the first plaintiff assigned her rights to Venkitachala Goundan and he was impleaded as second plaintiff in the suit. Subsequently Ramayya and Sivamala, defendants 2 and 3 in O.S. No. 346 of 1123, were also impleaded as additional defendants in the suit. They also denied the title of the first plaintiff and supported the first defendant. When the suit came for evidence the first plaintiff sought to amend the plaint by adding an alternative ground that even if the property belonged to Arunachala she was entitled to recover possession of it as his heiress. The amendment was refused by the trial court and the revision filed before the High Court met with no success. The suit was accordingly tried on the original pleadings and was dismissed on 29.5.1122 on the ground that the lease set up in the plaint was not true. On 30.7.1122 the present suit was filed by the two plaintiffs in the Trichur District Court as O.S. No. 123 of 1122 for recovery of possession of the property on the strength of title. It was alleged in the plaint that the property belonged to Athakkal and that the first plaintiff got it under her will. On 30.7.1122 the present suit was filed by the two plaintiffs in the Trichur District Court as O.S. No. 123 of 1122 for recovery of possession of the property on the strength of title. It was alleged in the plaint that the property belonged to Athakkal and that the first plaintiff got it under her will. It was also alleged alternatively that even if the property belonged to Arunachala the first plaintiff was the sole surviving heir to him and that in any case she was entitled to recover possession of the property. The prayer in the plaint was that the second plaintiff might be given possession of the property since the first plaintiff had assigned her rights to him. Defendants 2 and 3 were also sought to be made liable for mesne profits along with the first defendant. By a subsequent amendment of the plaint it was prayed that in case it was found that the second plaintiff was not entitled to recover possession of the property the first plaintiff might be allowed to recover possession of the same. 3. The first defendant filed a separate written statement while defendants 2 and 3 filed a joint written statement in the case. The contentions raised in the two written statements are the same. The main contentions are the following:- The sale deed executed by Chennimala Goundan in favour of Athakkal was benami for Arunachala's family and she got no title to the property under the sale deed. First plaintiff, therefore, acquired no right to the property under the will executed by Athakkal. Chennimala himself purchased the properties in his name for and on behalf of Arunachala's family with family funds. He accordingly made over the properties to the family through the two sale deeds, one in the name of Arunachala and the other in the name of Athakkal. The latter was only a name-lender. The property was really in the possession of the family and was included in the family partition under which it was allotted to the share of Arunachala. Even if Athakkal had any title to the property that was lost by the adverse possession of the family. The sale deed executed by the first plaintiff in favour of the second plaintiff is without any consideration and bonafides and is invalid. The second plaintiff has, therefore, acquired no title to the property. Even if Athakkal had any title to the property that was lost by the adverse possession of the family. The sale deed executed by the first plaintiff in favour of the second plaintiff is without any consideration and bonafides and is invalid. The second plaintiff has, therefore, acquired no title to the property. With regard to the alternative case put forward in the plaint it was contended that the first plaintiff was not the heir of Arunachala, that Arunachala had gifted the property to defendants 2 and 3, that they were managing the proeprty even during his life time and that in the course of such management the second defendant leased the property to the first defendant on an annual rent of Rs. 75/-. It was also contended that the alternative plea was inconsistent and incompatible with the plea that the property belonged to Athakkal and that no relief should be granted on the basis of that plea. It was further contended that assuming that the first plaintiff was the heir of Arunachala, in view of the fact that she was wasting the estate by executing sale deeds in favour of stranges, she should not be allowed to recover possession of the property. The claim for mesne profits was also disputed. It was contended that the rent for the property was only Rs. 75/- a year, and that rent at that rate was being paid by the first defendant to defendants 2 and 3. 4. O.S. Nos. 366 and 367 of 1123 were instituted by Ramayya, the second defendant in O.S. No. 346 of 1123, to recover possession of two other plots of land comprised in the sale deed in favour of Athakkal by Chennimala with the allegation that the properties belonged to Arunachala, that Ramayya was managing the properties and that in the course of such management he orally leased the two plots to the respective defendants in the two suits. The suits were originally filed in the Chittur Munsiff's Court. 5. The defendant in O.S. No. 366 of 1123 contended that the property belonged to Athakkal, that Pechiammal got it under her will and that he was holding it on oral lease under Pechiammal. The defendant in O.S. No. 367 of 1123 contended that he was holding the property on oral lease under Arunachala Goundan and after his death under Pechiammal, his legal heir. The defendant in O.S. No. 367 of 1123 contended that he was holding the property on oral lease under Arunachala Goundan and after his death under Pechiammal, his legal heir. The allegation in the plaint that Ramayya leased the property as manager of Arunachala was denied. 6. These two suits were subsequently transferred to the Trichur District Court to be tried along with O.S. No. 123 of 1122 of that court. When the Chittur Sub-Court was constituted the three suits were transferred to that court and were given the present numbers. They were tried together and evidence was taken in O.S. No. 346 of 1123. The court below found that the sale in favour of Athakkal was benami for Arunachala's family. But it was held that the first plaintiff was entitled to recover possession of the property as the heir of Arunachala. The alleged gift of the property by Arunachala to defendants 2 and 3 was found to be not true. The assignment deed, Ext. B, executed by the first plaintiff in favour of the second plaintiff was held to be valid so far as the first plaintiff's life estate in the property was concerned. It was, therefore, held that the second plaintiff was entitled to recover possession of the property and to be in possession of the same for the life of the first plaintiff. Defendants 2 and 3 were made liable for mesne profits at the rate of Rs. 75/- a year for the years 1120,1121 and 1122. The first defendant alone was made liable for mesne profits from the date of suit. Parties were directed to receive and pay costs in proportion to their success and failure. On the basis of the findings in O.S. No. 346 of 1123 the other two suits, viz., O.S. Nos. 366 and 367 of 1123, were dismissed with costs. 7. The first defendant alone was made liable for mesne profits from the date of suit. Parties were directed to receive and pay costs in proportion to their success and failure. On the basis of the findings in O.S. No. 346 of 1123 the other two suits, viz., O.S. Nos. 366 and 367 of 1123, were dismissed with costs. 7. The grounds urged in A.S. No. 498 of 1951 are the following:- (1) The court below went wrong in giving a decree on the basis of the alternative plea raised in the plaint; (2) The court ought to have found that after the partition in Arunachala's family he reunited with defendants 2 and 3 surrendering his properties to the family; (3) The court ought to have found that the assignment deed executed by the first plaintiff in favour of the second plaintiff was not supported by consideration and necessity, that it was invalid and that the second plaintiff is not entitled to recover possession of the property; (4) In order to safeguard the interests of the reversioners it is, in any case, just and proper to place the proeprty in the possession of a receiver; and (5) The court below went wrong in making defendants 2 and 3 liable for past mesne profits. It is seen that plaintiffs 1 and 2 have fallen out, and the first plaintiff has filed a memorandum of objection objecting to the decree allowing the second plaintiff to recover possession of the property. She prays that she may be granted all the reliefs claimed in the plaint. 8. With regard to the first ground raised in the appeal it was contended by learned counsel for the appellants that the alternative plea raised in the plaint that the first plaintiff is entitled to recover possession of the property as the heir of Arunachala is inconsistent with her plea that the property belonged to her mother, Athakkal, that the two pleas are destructive of each other and that the court below went wrong in giving a decree on the basis of the alternative plea. We find ourselves unable to accept this argument. In substance the first plaintiff's case is this:- "The property belongs to my mother and I am entitled to it under her will. The defendants have a case that the sale deed in favour of my mother is benami for my father's family. We find ourselves unable to accept this argument. In substance the first plaintiff's case is this:- "The property belongs to my mother and I am entitled to it under her will. The defendants have a case that the sale deed in favour of my mother is benami for my father's family. Even in that case I am entitled to recover possession of the proeprty as the sole heir of my father. In either case I am entitled to recover possession of the property". We do not think that there is anything wrong in the first plaintiff putting forward such a case. There is nothing in the Code of Civil Procedure to prevent a plaintiff from basing his claim for relief in the suit on two alternative titles. Referring to the provision of 0.19 R.4 of the Rules of Supreme Court (England) corresponding to 0.6 R.2 of the Code of Civil Procedure (India), Lindly, L.J. said in re: Morgan Owen v. Morgan (1887-35 Chancery Division 492): "A person may rely upon one set of facts, if he can succeed in proving them, and he may rely upon another set of facts if he can succeed in proving them; and it appears to me to be far too strict a construction of this Order to say that he must make up his mind on which particular line he will put his case, when perhaps he is very much in the dark". This power is, however, subject to the provision contained in 0.6, R.16, which says that the pleadings should not be such as to tend to embarass the trial of the suit. This is what Lindley, L.J. said on the plaint: "I quite see that that power may be very much abused. It may be abused to such an extent as to be embarassing and unfair and oppressive to the other side. To correct that there is R.27 of the same Order which enables a judge to strike out as embarassing any pleading, whether it is an alternative pleading or whether it is not. But to go the length of saying that no inconsistent pleading can be pleaded, which is the view taken, by the learned judge in the court below, appears to me not warranted by the rules and contrary to the established practice of the courts". (1887-35 Chancery Division 492 at 500). 9. But to go the length of saying that no inconsistent pleading can be pleaded, which is the view taken, by the learned judge in the court below, appears to me not warranted by the rules and contrary to the established practice of the courts". (1887-35 Chancery Division 492 at 500). 9. Reference may also be made to a Full Bench decision of the Calcutta High Court relating to the question, i.e., Narendra Nath Barani v. Abhoy Charan Chattopadhya (34 Calcutta 51). That was a case in which the plaintiff asked for a declaration that the property in dispute belonged to him or in the alternatively that he had a right of easement over it. In referring the case to the Full Bench, Geidt, J., observed: "While there is an undoubted inconsistency in claiming a right of ownership and a right of ownership jointly in the same land, there is no real or necessary inconsistency in claiming either of these rights in the alternative. In a case like the present a plaintiff may very well allege bonafide: "I believe the land to be mine, but I may be unable to prove it; if I should fail to prove it I can at any rate prove that I have been using the right of way as an easement uninterruptedly and as of right for over 20 years". There appears to me no reason in principle why a claim like this in the alternative should not be tried, or why the plaintiff should be forced first to bring a suit to establish his right of ownership, and if that fails, then to bring a suit to establish the right of easement. The trial of the claim in the alternative in one suit would tend to avoid a multiplicity of suits, in compliance with S. 42 of the Code of Civil Procedure, which provides that "Every suit shall, as far as practicable, be so framed as to afford ground for a final decision upon the subjects in dispute", and so to prevent further litigation concerning them". The Full Bench accepted this view. In Firm Sreenivas Ram v. Mahabir Prasad (A.I.R. 1951 Supreme Court 177) Mukherjea, J. observed: "A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative". The Full Bench accepted this view. In Firm Sreenivas Ram v. Mahabir Prasad (A.I.R. 1951 Supreme Court 177) Mukherjea, J. observed: "A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative". 10. Learned counsel for the appellants relied on the view taken by Varghese, J., in Ram Nambeesan v. Govindan Nair (16 Cochin 36). In that case certain properties were usufructuarily mortgaged first to V and then to K and taken back on lease in each case. K was to have discharge V's mortgage but did not do so, and he brought a suit on the strength of the lease to him praying for recovery of the properties and for their sale for arrears of rent reserving his mortgage right. The suit was compromised, the razi providing for the payment of amounts due under the mortgage and lease on certain fixed dates and on default of such payment for the sale of the properties and also for their surrender. The amounts were not paid and K proceeded to execute the decree for sale and surrender. The first defendant then came forward and took and assignment of the rights both of V and K and also of the decree obtained by K. He then executed the decree and reduced the bulk of the properties into his possession. Plaintiff thereafter took a usufructuary mortgage of the properties undertaking to redeem the mortgages obtained by the first defendant and sued for such redemption. The first defendant contended that while the execution proceedings by K were pending the owners of the properties entered into an agreement with him to assign the major portion of the properties to him, that he obtained possession of the properties by virtue of that agreement, that he therefore became the equitable owner thereof, and that the plaintiff was not entitled to redeem the properties covered by the agreement. The court found the agreement to be true and the question for consideration was whether the first defendant was entitled to resist the suit for redemption. Narayana Iyer, C.J., and Narayana Menon, J. held that the first defendant as equitable owner of the properties was entitled to the equitable relief claimed by him. Varghese, J., disagreed with this view. The court found the agreement to be true and the question for consideration was whether the first defendant was entitled to resist the suit for redemption. Narayana Iyer, C.J., and Narayana Menon, J. held that the first defendant as equitable owner of the properties was entitled to the equitable relief claimed by him. Varghese, J., disagreed with this view. One of the reasons given by the learned judge for holding that the first defendant was not entitled to the equitable relief was that since he put forward claims both as K's successor and also under the alleged contract of purchase his pleas were inconsistent and destructive of each other, and therefore repugnant to an equitable claim. The learned judge observed: "Inconsistent pleadings may be raised alternatively but not in all cases. For, the reason why such alternative pleas are allowed is to prevent multiplicity of proceedings and nothing else. Therefore, wherever the two pleas may be advanced in two separate suits, they may be advanced alternatively in the same. That is not the case, here. Could the first defendant first plead in one suit that the mortgage sought to be redeemed was merged in the razi decree and destroyed by the terms thereof so that he has become the sole owner and afterwards, having failed in that suit, plead in the next that there is a binding contract to sell part of those properties to him on payment of some further purchase money to defendants 2 to 11? I think not, for, by his conduct in the first suit, he utterly repudiates the contract". It is not necessary for us to canvass the soundness of this view which was not shared by the other two learned judges. The facts of this case are different. The question here is not whether the first plaintiff can be granted and equitable relief. She claims recovery of possession of the property on the basis of two alternative titles, one as the legatee of her mother and the other as the heir of her father. If it is found that the property belonged to her mother as per the sale deed in her favour she will be entitled to recover possession under the will. She claims recovery of possession of the property on the basis of two alternative titles, one as the legatee of her mother and the other as the heir of her father. If it is found that the property belonged to her mother as per the sale deed in her favour she will be entitled to recover possession under the will. But, if it is found that the sale in favour of the mother was benami for the father's family, then also she will be entitled to recover possession as the heir of the father. This s clearly a case of a party making two inconsistent sets of allegations in the plaint and claiming relief in the alternative. As held by the Supreme Court in A.I.R. 1951 S.C.177, there is nothing to prevent a party from doing so. We are, therefore, unable to accept the contention that the plaintiffs are not entitled to relief on the basis of the alternative plea raised in the plaint. 11. The second ground raised in the appeal is that Arunachala re-united with defendants 2 and 3 after the partition in the family and that his properties have revested in the family. No such contention was raised in the written statement. The contention raised in paragraph 12 of the written statement of defendants 2 and 3 is that Arunachala gifted the properties to defendants 2 and 3: Nowhere is it stated in the written statement that Arunachala re-united with his brothers after the partition in the family. But whether the case is one of gift of the properties to defendants 2 and 3 or of re-union of Arunachala with them, there is no evidence in the case to prove either the gift or the re-union. No document is produced in the case to show that Arunachala made a gift of the properties to his brothers. Nor is there any evidence to prove the alleged re-union. In the circumstances, the court below was justified in repelling this contention. 12. The third ground urged in the appeal relates to the assignment, Ext. B, executed by the first plaintiff in favour of the, second plaintiff. The contention is that the assignment deed is not supported by consideration and that it is, therefore, invalid. It cannot be seriously disputed that there is no consideration for the assignment deed so as to bind the reversioners. B, executed by the first plaintiff in favour of the, second plaintiff. The contention is that the assignment deed is not supported by consideration and that it is, therefore, invalid. It cannot be seriously disputed that there is no consideration for the assignment deed so as to bind the reversioners. The consideration mentioned in the document is the undertaking by the second plaintiff to give the first plaint Rs. 250/- a year for her maintenance. This certainly cannot be a valid consideration for the sale of the property so as to bind the reversioners. But the question is whether the alienation will not take effect so far as the first plaintiff's life estate in the property is concerned, or in other words, whether the second plaintiff is not entitled to be in possession of the property for the term of the first plaintiff's life. Learned counsel for the appellants relied on the decision of the Supreme Court in Natvarlal v. Dadubhai (A.I.R. 1954 S.C. 61) in support of the position that when an alienation of property by a widow or other female heir is found to be invalid the reversioners are entitled to immediate possession of the property and that the alienee cannot contend that he is entitled to be in possession till the death of the widow or other female heir. We do not think that the decision of the Supreme Court goes to that extent. What was held in that case is that if the deed of alienation executed by a widow is not for legal necessity and is, therefore, invalid and if the widow executes a deed of surrender in favour of the reversioners they have the right to recover possession of the property alienated even during the life-time of the widow. The reason given is that the deed of surrender extinguished the widow's estate in the property and so long as that estate is extinguished the alienee cannot claim any right to be in possession of the property for the life time of the widow. In the present case there is no such deed of surrender executed by the first plaintiff in favour of the reversioners. It cannot, therefore, be said that there has been an extinguishment of the first plaintiff's life estate in the property. So long as that estate is subsisting there is nothing in law to prevent her from transferring it to another. It cannot, therefore, be said that there has been an extinguishment of the first plaintiff's life estate in the property. So long as that estate is subsisting there is nothing in law to prevent her from transferring it to another. This is what their Lordships said at page 68: "The Hindu Law certainly does not countenance the idea of a widow alienating her property without any necessity, merely as a mode of enjoyment, as was suggested before us by Mr. Ayyengar, If such a transfer is made by a Hindu widow, it is not correct to say that the transferee acquires necessarily and in law an interest commensurate with the period of the natural life of the widow or at any rate with the period of her widowhood. Such transfer is invalid in Hindu Law, but the widow, being a grantor herself, cannot derogate from the grant and the transfer cannot also be impeached so long as a person does not come into existence who can claim a present right to possession of the property. As in the majority of cases, persons with such rights come into existence only when the widow dies it is generally said that the alienee gets the estate for the term of the widow's life". It is clear from this that so long as the widow's estate is not extinguished by surrender or by other means the reversioners cannot claim present right to possession of the property and that the alienee gets the estate for the term of the widow's life. The appellants have no case that the first plaintiff has surrendered her life estate in their favour. We, therefore, hold that the second plaintiff is entitled to be in possession of the property for the term of the first plaintiff's life. 13. The next argument advanced on behalf of the appellants is that in order to safeguard their interest in the property it is just and proper that a receiver is appointed for the property. The appellants have no case that if the second plaintiff is allowed to recover possession of the property he is liable to cause damage to it so as to prejudice their reversionary right. If the first plaintiff can be in possession of the property during her life we find no reason why her alienee, the second plaintiff, cannot be allowed to be in possession for that period. If the first plaintiff can be in possession of the property during her life we find no reason why her alienee, the second plaintiff, cannot be allowed to be in possession for that period. There is, therefore, no reason to place the property in the possession of a receiver. 14. The last ground urged in the appeal is that the court below went wrong in making defendants 2 and 3 liable for past mesne profits. It is admitted by defendants 2 and 3 that they received from the first defendant the rent for the years 1120, 1121 and 1122. There is, therefore, no reason why they should not be made liable to the plaintiffs for the rent of the property for that period. In the result, we are unable to accept any of the arguments advanced on behalf of the appellants. 15. The first plaintiff has, as stated already, filed a memorandum of objection objecting to the decree allowing the second plaintiff to recover possession of the property. Her prayer is that she may be allowed to recover possession of the property. In view of our finding that as between plaintiffs 1 and 2 the assignment deed, Ext. B, is valid and that the second plaintiff is entitled to be in possession of the property for the term of the first plaintiff's life, we are unable to grant this prayer. 16. We therefore, confirm the judgment and decree of the court below in O.S. No. 346 of 1123 and dismiss A.S. No. 498 of 1951 with costs. 17. So far as A.S. Nos. 1086 and 1087 of 1951 are concerned, we are of opinion that the court below went wrong in dismissing the suits which gave rise to those appeals for the mere reason that the title of the plaintiff in those suits to be properties involved in them was found against in O.S. 346 of 1123. Those two suits were brought on foot of oral lease alleged to have been entered into between the defendant in each of the suits with the plaintiff. The plaintiff's case is that he was in management of the properties of Arunachala and that in that capacity he leased the properties to the defendants. Even if it is found that the plaintiff has no title to the properties that by itself is no reason why the suits should be dismissed. The plaintiff's case is that he was in management of the properties of Arunachala and that in that capacity he leased the properties to the defendants. Even if it is found that the plaintiff has no title to the properties that by itself is no reason why the suits should be dismissed. The main question for decision in those two suits is whether the oral leases alleged by the plaintiff are true and whether the defendants were let into possession of the properties by the plaintiff. This question was not decided by the court below. We, therefore, set aside the judgments and decrees of the courts below in O.S. Nos. 366 and 367 of 1123 and remand the two suits to that court for fresh disposal according to law and in the light of the observations made above. A.S. Nos. 1086 and 1087 of 1951 are allowed in the manner stated above. The parties will bear their respective costs in this court, except the court fee paid on the memorandum of appeals which will be refunded to the appellant. The costs in the court below will abide the final result of the suit. Allowed.