Nallathambi Nadar (died) v. Santha Bai — 1997 DIGILAW 1551 (MAD)

Judgment :- 1. The first and the second defendants, who were husband and wife filed the second appeal Pending the second appeal the first defendant/first appellant died. The second defendant/second appellant was recorded as the legal representative of the first appellant. The first respondent is the elder brothers daughter of the first appellant. The other respondents were defendants 2 to 4. A civil miscellaneous petition in C.M.P.No. 15207 of 1997 has also been filed under O.41, Rule 27 of the Code of Civil Procedure, to receive a document as additional evidence in the second appeal. 2. The averments as set out in the plaint in O.S.No.662 of 1979 on the file of the District Munsifs Court, Padmanabhapuram, filed by the first respondent are as follows: The first defendant and the father of the plaintiffs, namely, Chinnathamby Nadar, since deceased, were brothers. The second defendant/second appellant was the wife of the first appellant. Plaint schedule items 1, 2, 3, 5, 6, 7, 8, 10, 12 and 13 were jointly owned by the first appellant and Chinnathamby Nadar each being entitled to half, After the death of Chinnathamby Nadar, his one half share in those items devolved on the first respondent, his only daughter. In item 4 of the plaint schedule, the first appellant and Chinnathamby Nadar were each entitled to l/3rd share and the remaining l/3rd share belonged to the second appellant. Chinnathambys l/3rd share, on his demise, devolved on the first respondent. Plaint item 9 was comprised in S.No. 1058 of an extent of 25 1/2 cents and in S.No. 1050 of an extent of 61 cents, which together lie as a single plot and correlated to R. S.No.502/3 in the survey. In the said item, out of 25 1/2 cents comprised in S.No. 1058 Chinnathamby Nadar was entitled to half, while the remaining half belonged to the first appellant. After the death of Chinnathamby Nadar, his half share in that survey had been inherited by the first respondent. In the remaining 61 cents comprised in S.No. 1050, Chinnathamby Nadar and the first appellant were originally entitled to half share each. But the entire property was outstanding on a mortgage. Subsequently, vide deed No. 3992/1122 of the Munchirai Sub-Registry and was in possession of the entire property, which on his death devolved on the first respondent. The first appellant had not redeemed his half share in the survey so far. But the entire property was outstanding on a mortgage. Subsequently, vide deed No. 3992/1122 of the Munchirai Sub-Registry and was in possession of the entire property, which on his death devolved on the first respondent. The first appellant had not redeemed his half share in the survey so far. So, by virtue of non-redemption and the law of limitation, the first appellant had lost his right over his half share and consequently the first respondent had become the owner of the entire property. Thus, in item 9 the first respondent was entitled to the entire 61 cents comprised in S.No. 1050 and half of 25 1/2 cents comprised in S.No. 1058. It is not necessary to refer to the other details in the plaint as the appeal is confined to only item No.9. 3. Appellants 1 and 2 filed written statement contending inter alia as follows: Chinnathamby was not entitled to one half in all the items stated in the plaint and the first respondent did not get one half share in item Nos.1, 2, 3, 5, 6, 7, 8, 10, 12 and 13. Plaint schedule items 1 to 4 forming part of S.No.615 was obtained by Chinnathamby Nadar and the first and the second appellants together under partition deed No. 1230/ 1953. The second appellant claimed purchase right of 135/9 in S.No.615. Further in item No.1 Chinnathamby Nadar sold 9 cents to the first appellant; the first appellant, sold away his one half share in item Nos.5, 6 and 7. Over plaint item No.8 the first appellant was entitled to one half. Over plaint item No. 9 the first appellant was entitled to one half share in S.No. 1050. Further, Chinnathamby Nadar. The eldest brother and seniormost male member, was the manager of the family and the property in S.No. 1058 was redeemed for the family by the manager and Chinnathamby Nadar has no separate right. (The details regarding other items are not germane for the purpose of our discussion. The other defendants who are respondents 3 to 5 are purchasers of other items and it is not necessary to refer to their defence.) 4. The trial court framed the necessary issues and on issue No.1 relating to item No. 9, found that the first appellant and Chinnathamby were living separately and there was no managership, that they had been independently dealing with the properties and that in Ex. The trial court framed the necessary issues and on issue No.1 relating to item No. 9, found that the first appellant and Chinnathamby were living separately and there was no managership, that they had been independently dealing with the properties and that in Ex. A-9 which is the release deed, there was no mention that it was obtained for the benefit of the family. So finding, the trial court held that the first appellant had lost his one half right by the law of limitation and non-redemption and the first respondent had acquired ownership over the entire 61 cents comprised in S.No. 1050 and half of the 25 1/2 cents comprised in S.No. 1058 and that the first appellant was entitled to only half of the 25 1/2 cents comprised in the latter S.No. By its judgment and decree dated 26.2.1981 the trial court accepted the case of the first respondent and granted a decree in her favour in respect of the entirety of 61 cents in S.No. 1050, besides one half share in the 25 1/2 cents in S.No. 1058, part of item No.9. This was confirmed on appeal in A.S.No.65 of 1981 by the learned Subordinate Judge, Padmanabhapuram, in his judgment dated 17.9.1983. Aggrieved, the present second appeal has been filed. 5. At the time of admission the following substantial question of law was framed for decision in the second appeal: “When no exclusive possession is claimed in respect of S.No. 1050 in item 9 by the plaintiff, whether the learned Subordinate Judge is right in negativing half share of the first defendant on the basis of the question of limitation”e 6. Mr. A.Venkatesan, learned counsel appearing for Mr.C.Rajagopalan, counsel for appellants, submitted as follows: (1) Chinnathamby Nadar was the kartha of the family. The transaction should have been only for the joint family. Redemption should have been only for the joint family. (2) Alternatively, the first appellant and deceased Chinnathamby were co-owners. Under Sec.90 of the Indian Trust Act, the relationship was fiduciary in character. In support of his second submission, the learned counsel relied on the following decisions: (1) Peer Mohideen Rowther v. Asia Bivi and others Peer Mohideen Rowther v. Asia Bivi and others Peer Mohideen Rowther v. Asia Bivi and others , A.I.R. 1934 Mad. Under Sec.90 of the Indian Trust Act, the relationship was fiduciary in character. In support of his second submission, the learned counsel relied on the following decisions: (1) Peer Mohideen Rowther v. Asia Bivi and others Peer Mohideen Rowther v. Asia Bivi and others Peer Mohideen Rowther v. Asia Bivi and others , A.I.R. 1934 Mad. 686; (2) Kandasami and another v. Adi Narayanan and others Kandasami and another v. Adi Narayanan and others Kandasami and another v. Adi Narayanan and others, (1996)1 MLJ. 320 ; and (3) Thamhiran Naicker and another v. Doraiswamy Naicker and others Thamhiran Naicker and another v. Doraiswamy Naicker and others Thamhiran Naicker and another v. Doraiswamy Naicker and others, (1996)2 MLJ. 207 . 7. Miss O.K.Sridevi, learned counsel appearing for the contesting first respondent, made the following submissions: (i) The mortgage were already barred on the date of the suit and the ratio of the decision of the Supreme Court in Valliama Champaka Pillai v. Sivathanu Pillai and others Valliama Champaka Pillai v. Sivathanu Pillai and others Valliama Champaka Pillai v. Sivathanu Pillai and others , A.I.R. 1979 S.C 1937 would apply to the facts of the case. (ii) The first appellant had not filed any suit for redemption, and (iii) There was nothing to show that item No.9 was joint family property. 8. It is very material to refer to paragraphs 4 and 6 of the plaint. Paragraph 4 of the plaint runs as follows: “Plaint item 9 is comprised of 25 1/2 cents in S.No. 1053 and 61 cents in S.No. 1050 and it lies as a single plot and in the survey it is correlated to R.S.No.502/3. In the said item, out of the 25 1/2 cents comprised in S.No. 1058, Chinnathamby Nadar was entitled to half, while the remaining half belonged to the first defendant. After the death of Chinnathamby Nadar, his half share in that survey has been inherited by the plaintiff. In the remaining 61 cents comprised in S.No. 1050, Chinnathamby Nadar and the first defendant were originally entitled to half share each, but the entire property was outstanding on a mortgage. Subsequently, Chinnathamby Nadar redeemed the entire property vide deed No.3992 of 1122 of the Munchirai Sub-Registry and was in possession of the entire property which on his death devolved on the plaintiff. The first defendant has not redeemed his half share in this survey so far. Subsequently, Chinnathamby Nadar redeemed the entire property vide deed No.3992 of 1122 of the Munchirai Sub-Registry and was in possession of the entire property which on his death devolved on the plaintiff. The first defendant has not redeemed his half share in this survey so far. So, by virtue of non-redemption and the law of limitation, the first defendant has lost his right over his half share and consequently, the plaintiff has become the owner of the entire property. Thus, in item No.9, the plaintiff is entitled to the entire 61 cents comprised in S.No. 1050 and half of 25 1/2 cents comprised in S.No.1058. “ Paragraph 6 runs as follows: “In respect of the plaint scheduled items, there has been no metes and bounds partition so far and the right and possession of the parties are only in Oodukoor. Oodukoor right is not conductive for effecting improvement in the properties. So the plaintiff wants her share to be partitioned in this suit.” and the prayer is for partition of all items including item No. 9 though in the relief portion A, it is stated as 73 3/4 cents in item No. 9 be partitioned by metes and bound. 9. An application for reception of the original mortgage deed has been filed. No counter has been filed on behalf of the contesting respondent and in fact the learned counsel for the first respondent stated that she has no objection for the mortgage deed being received in evidence. Accordingly, the application C.M.P. No. 15207 of 1997, is allowed and the document is received and will be marked as Ex.N-13. A reading of the document shows that it had been created in the sly without reference to the first appellant. Equally the redemption deed Ex. A-9 had also been brought about without reference to the first appellant, as if the property covered by the deed was Chinnathamby Nadars separate absolute property. The mortgage Ex.B-13 was created in 1121 M.E. and it was redeemed the very next year, viz., 1122 M.E. It is recited in Ex.B-13 as follows: “I am the absolute owner of the schedule mentioned property and I have been enjoying the same without any encumbrances. I mortgaged the same to the above mentioned mortgages for a sum of Rs.4,900. The mortgage Ex.B-13 was created in 1121 M.E. and it was redeemed the very next year, viz., 1122 M.E. It is recited in Ex.B-13 as follows: “I am the absolute owner of the schedule mentioned property and I have been enjoying the same without any encumbrances. I mortgaged the same to the above mentioned mortgages for a sum of Rs.4,900. Since I received the mortgage amounts as stated below and executed mortgage deed in favour of you, you have to enjoy the same and pay the taxes to the concerned authorities.” 10. Admittedly, the first appellant and the deceased Chinnathamby were co-owners. As on date, there is no mortgage subsisting. There is also nothing to show that the mortgage was for the benefit of both the co-owners. There is also nothing on record to show as to what Chinnathamby did with the mortgage money. If Chinnathamby was the kartha, his mortgage should have been for the joint family necessity or benefit and equally the redemption should have been for a like purpose. If it was not a case of kartha and a case of co-owner, whatever Chinnathamby did, it was in his capacity as trustee so far as the other co-owner was concerned. Commodum ex injuria sua nemo habere debit Convenience cannot accure to a party from his own wrong. That is to say, no one can be allowed to benefit from his own wrongful act. The mortgage deed now marked as Ex.B-13 had been cleverly kept back, more to create an impression that Chinnathamby had redeemed it and unless he was paid the aliquot share, the first appellant could not claim any share and the claim itself would be barred by limitation. 11. In Valliama Champaka Pillai v. Sivathanu Pillai and others Valliama Champaka Pillai v. Sivathanu Pillai and others Valliama Champaka Pillai v. Sivathanu Pillai and others , A.I.R. 1979 S.C. 1937: (1979)4 S.C.C. 429 mortgages were created by two brothers and were redeemed by one of the brothers alone. The mortgages were between 1881 and 1884. The redemptions were between 1913 and 1918. The non-redeeming co-owners grand-daughter filed a suit for partition in the year 1946. With regard to items mortgaged and redeemed she aimed possession on contribution of her share of the mortgage money that had been paid by the redeeming mortgagors to the mortgagees. The mortgages were between 1881 and 1884. The redemptions were between 1913 and 1918. The non-redeeming co-owners grand-daughter filed a suit for partition in the year 1946. With regard to items mortgaged and redeemed she aimed possession on contribution of her share of the mortgage money that had been paid by the redeeming mortgagors to the mortgagees. The defence with regard to this was that the period of limitation for redemption of the mortgages under the Travancore Limitation Act was 50 years, which had expired long before the filing of the suit. Preliminary decree was passed leaving the question of limitation to be decided in the final decree proceedings. It was held by the first court that the starting point of limitation was the date of redemption by the redeeming co-mortgagors, which was between 1913 and 1918 and 50 years had not expired on the date the suit was filed. On appeal the learned single Judge of this Court held that a non-redeeming co-mortgagor would have only a period of 12 years limitation under Art. 144 of the Limitation Act, 1908 and that Art. 148 (corresponding to Art. 136 of the Travancore Limitation Act) was not the proper Article to be applied to such a suit where the Transfer to Property Act as amended by the Amending Act of 1929 was not in force. 12. The matter went on Letters Patent Appeal and heard by a full Bench of this Court. The Full Bench by a majority of two to one held that, ”a non-redeeming co-mortgagor had two periods of limitation within which he might file his suit against the redeeming co-mortgagor for redemption of his share, namely, within 50 years provided for by the Travancore Limitation Act, starting from the date of mortgage, or, if that period had already expired, within 12 years of the date of redemption by the redeeming comortgagor, under Art. 132 of the Travancore Limitation Act, corresponding to Art. 144 of the Indian Limitation Act, 1908. “ Valliama v. Sivathanu Valliama v. Sivathanu Valliama v. Sivathanu , A.I.R. 1964 Mad. 269 (F.B.). “ Valliama v. Sivathanu Valliama v. Sivathanu Valliama v. Sivathanu , A.I.R. 1964 Mad. 269 (F.B.). The Supreme Court affirmed the Full Bench and ultimately held that, “The non-redeeming mortgagors suit for his share of the property, on payment of his proportionate share of the mortgage money, would be barred irrespective of whether the limitation is governed by the provisions of Limitation Regulation corresponding to Art. 132 or 144 or any other Article of the Indian Limitation Act, 1908.“ 13. The case decided by the Supreme Court was a case where there was a division between the parties. There was an attempt before the Supreme Court to say that at the time when the two brothers in that case made the mortgages in question, they were members of a joint Hindu Family and the mortgages were also made of the joint family property and consequently, the redemption by one of the co-mortgagors of the whole property, could only be on behalf of and for the benefit of all the members of the joint family, including the plaintiffs. It was also submitted alternatively that even if it was conceded that after some time after the mortgages but before the redemption, the family had divided in status, then also after the redemption, the two branches of the family would be deemed to be holding the property as tenants in common or co-owners in defined shares. In either case, no question of adverse possession or limitation would arise as the possession of the redeeming co-mortgagor would, in law, be the possession of the non-redeeming co-owners also. The Supreme Court vetoed this argument on the ground that such a plea was not agitaged, either before the learned single judge or the Full Bench in the High Court. In fact, the learned single Judge of the High Court had observed: ”Though there was an issue that these two branches (of Madhavan and Sivathanu) were undivided in status, the finding of the court below was that they were divided at all material times and this finding is not the subject of controversy in this appeal.“ 14. Our case is not a case of divided members. It is admitted in the plaint itself that the parties were co-owners. In para 6 there is clear admission of joint possession. There is therefore no question of limitation arising with regard to item No. 9. Our case is not a case of divided members. It is admitted in the plaint itself that the parties were co-owners. In para 6 there is clear admission of joint possession. There is therefore no question of limitation arising with regard to item No. 9. It is specifically stated on behalf of the contesting respondent that there was nothing to show that it was grand fathers property; impliedly admitting that the parties were co-owners. Admittedly, the first appellant was not a co-mortgagor. There is, therefore, no question of limitation involved in the case. The decision of the Supreme Court in Valliamas case will not apply to the facts of the present case. 15. It has been held in Peer Mohideen Rowther v. Asia Bivi and others Peer Mohideen Rowther v. Asia Bivi and others Peer Mohideen Rowther v. Asia Bivi and others, A.I.R. 1934 Mad. 686 with particular reference to Sec. 90 of the Trusts Act as follows: “Though the relationship of one co-owner towards another is not of a fiduciary character, still when one co-owner deals with his co-owners share and assumes responsibility in regard to it and further acts as guardian of the minor son of the other co-owners on his death, his other co-owner on his death, his conduct creates such fiduciary relationships as to be treated as a trustee for the other co-owner.” 16. It will also be pertinent to refer to the decision in Kandasami and another v. Adi Narayanan and others Kandasami and another v. Adi Narayanan and others Kandasami and another v. Adi Narayanan and others, (1996)1 MLJ. 320 whereRaju, J. dealing with a case of a kartha of a joining family claiming a particular property to be his separate property, observed as follows: “To claim a property to belong to the joint family, such person must show initially that the joint family had sufficient nucleus in the form of ancestral properties or income therefrom, out of which the later acquisitions could be reasonably said to have been made and that, therefore, such acquisitions also belong to the joint family. But the position will be different in the case of managers or father and karthas of the joint family If the later acquisitions are found or shown to have been acquired by or in the name of the father or the kartha and head of the family or the manager of the Hindu undivided family for the time being, it becomes inevitably only his burden to explain that the acquisitions standing in their names have been made only from out of their separate fund and not from the joint family nucleus or funds, because of the peculiar position and status of such person and knowledge of the affairs of the family. So far as the properties acquired by or standing in the name of female members of the family are concerned, it is not the female member who has to prove how she acquired the same and on the other hand, it is for the person who claims such properties to belong to the joint family to substantiate their claim on the basis of definite and clinching proof that they have been acquired from out of the funds of the joint family nominally for the benefit of the joint family and that such purchase was not to benefit the female member concerned.” 17. To the same effect is the decision reported in Thambiran Naicker and another v. Doraiswamy Naicker and others Thambiran Naicker and another v. Doraiswamy Naicker and others Thambiran Naicker and another v. Doraiswamy Naicker and others, (1996)2 MLJ. 207 . This is more to support the alternative argument putforward by the learned counsel for the appellant. If it was joint family property and if the property was claimed to be the separate property of the eldest male member the onus was very heavy on his to show that it had been acquired with his own funds. In the instant case, to start with, admittedly, the property was the joint property of the first appellant and deceased Chinnathamby Nadar. Chinnathamby Nadar had no business to deal with the property as if it was his self-acquired property and on redemption, the property must be deemed to have come back to the co-owners. It is also not seen either from the mortgage deed or from the release deed that the mortgage was for the benefit of the joint owners. Chinnathamby Nadar claimed it as his separate property. It is also not seen either from the mortgage deed or from the release deed that the mortgage was for the benefit of the joint owners. Chinnathamby Nadar claimed it as his separate property. That was bad indeed. Worse was the redemption the very next year. Indeed he should find the money for redemption. It has not been explained at all as to how he and as already observed, as between got the money to redeem co-owners there is no question of limitation arising to defeat the claim of the non-redeeming co owner. 18. The approach of both the courts below is perfunctory and the conclusions has been reached on a misconception of the legal position. Sitting in second appeal, this Court is entitled to interfere under Sec. 100 of the Code of Civil Procedure. Consequently, the substantial question of law raised is answered in favour of the appellant and the second appeal is allowed. The judgments and decrees of both the courts below are set aside and the decree with regard to item No. 9 will stand modified, in that both the first respondent and the second appellant will be entitled to one half share in item No.9. There will be no order as to costs.