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2004 DIGILAW 85 (MAD)

Singa Muthu (died) and others v. Govindammal

2004-01-30

V.BALASUBRAHMANYAN, V.KANAGARAJ

body2004
V.Kanagaraj, J.: The defendants before the Court below are the appellants herein. 2. The respondent herein has filed the suit before the Court below praying for delivery of possession of the lands and for declaration of her title and consequential relief of delivery of possession of the houses and the lands on which they are constructed on averments such as that the plaintiff is the absolute owner of the suit properties; that she had first constituted her father as the power agent to look after her estate and later she revoked that power and gave a fresh power to the deceased first defendant on 8.8.1973, thus directing her father to deliver possession of all her properties and also the original documents of title to the first defendant; that accordingly the first defendant got possession of the said items on 13.7.1973, giving an acknowledgment; that thereafter, the first defendant was personally cultivating the suit lands, occupying a portion of the tiled house in the same property; that the site on which the house stands was purchased and built by the plaintiff with her funds; that in another portion of the tiled house, a tenant was there; that two other thatched houses were also leased to tenants and the rents were collected by the first defendant from them and that only recently the two thatched houses became vacant. 3. 3. The further case of the plaintiff is that the second defendant is none else than the first cousin of the plaintiff’s husband Muthian and he is the one who is instigating the first defendant to be antagonistic towards the plaintiff; that since the plaintiff is away from India, the whole of the income received from the suit properties is being appropriated only by the first defendant and that he has not so far accounted for the income from the lands and the houses for all these years; that he derives an average income of not less than Rs.2,500 from the lands and an income of Rs.100 per month from the houses; that when the plaintiff came to India during September, 1985, she revoked the Power of Attorney given to the first defendant by notice dated 24.9.1985, which was received by the first defendant on 3.10.1985, for which there was no reply; but the plaintiff was able to take possession of all the lands and the properties excepting a house in which the first defendant was residing; that after her leaving from India, again the first defendant took possession of all the properties. 4. 4. The plaintiff would further submit that she was advised that the Power of Attorney has been staying at Edamalaipatti Pudur along with her sons; that her mother-in-law Palaniyayi married one Doraisamy for a second time, since her husband died; that the second defendant is the son of Palaniyayi through her second husband; that during the period 1973 to 1978, the plaintiff’s husband was sending various amounts through demand drafts, with were also appropriated by the first defendant and the same is more than sufficient to maintain Palaniyayi from 1973 to the date of revocation of the power; that since the first defendant and his associates seemed to have poisoned the mind of the plaintiff’s husband, he compelled the plaintiff to return to Malaysia when she was in India; that thereafter, he realised his misgivings and advised one Palaniyandi Pillai to prepare a deed of revocation and also another power in favour of Ayinan Muithiriar and the same were prepared accordingly; that the first defendant wrote a letter to the plaintiff’s husband agreeing to deliver possession of the properties, for which he replied to deliver possession to the Palaniyandi Pillai; that the first defendant was personally cultivating the lands and he did not lease out the lands to anybody; that after the deed of revocation and the power of attorney in favour of Ayinan Muthiriar, a registered notice was sent to the first defendant on 28.1.1986 to deliver possession, for which the first defendant replied saying that he had already leased out the lands to the second defendant and that he is the cultivating tenant entitled to the benefits of Tamil Nadu Act 25 as amended. 5. It is further submitted by the plaintiff that the first defendant has stated in the reply that the site on which the house stands was purchased by him in the name of the plaintiff as benami and that it was only a loan that he got from her; that the house was built by him with his funds, which according to the plaintiff is false; that the first defendant did not lease out the lands to the second defendant and the first defendant alone is in possession and enjoyment of the suit properties; that the first defendant has no title to the site or the house. Hence, the suit praying for the reliefs extracted supra. 6. Hence, the suit praying for the reliefs extracted supra. 6. In the written statement filed by the defendants, besides denying all the averments made in the plaint, they would specifically submit that there is a tiled house in item No.3 of the suit property situate in 0.07 cents which is west of 0.10 cents, in which, the plaintiff has no title and that there is no power by her to the first defendant with regard to the tiled house; that the first defendant purchased 0.07 cents of land in the year 1966; that he approached the plaintiff for a loan and that she offered to give loan only if the site was purchased in her name; that only to safeguard her right, the purchase was made in her name; that the loan was discharged some time later; that the first defendant, with his own funds, constructed the tiled house and is in personal occupation of the same; that there are two thatched houses in 0.10 cents and that a nominal rent has been collected by him; that the first defendant leased out the property as the power agent of the plaintiff; that the lease was only with regard to the thatched houses; that items No.1 and 2 of the suit property were leased out to the second defendant in the month of October, 1973 on waram basis and that the lessee has to pay 1/3rd of the yield; that the first defendant was getting 10 bagas of paddy from the land; that the second defendant is entitled to the benefits of Act 25 of 1985. 7. The first defendant would further submit that the plaintiff’s mother-in-law was maintained by the first defendant from out of the income of the lands, as directed by the plaintiff; that since he is working in Sabari Mills, he leased out the land to the second defendant; that the income from the land is only taken from the land would not be more than Rs.1,000 and the income from the thatched house leased out is Rs.15; that the other house remained vacant; that the first notice dated 24.9.1985 was not replied since a panchayat was held and negotiations were going on regarding the subject and the second notice was replied; that the plaintiff’s husband did not send money to his mother, but to one Saroja. On such averments, the defendants would pray to dismiss the suit with costs. 8. The trial Court, on the above pleadings of parties, would from the following issues for consideration of all questions involved in the suit: (1) Whether the plaintiff is entitled for possession of items 1 and 2 of the suit properties from the defendants? (2) Whether the plaintiff is entitled to the relief of declaration in respect of items 3 to 5 of the suit properties as prayed for? (3) Whether the plaintiff is entitled for possession of items 3 to 5 of the suit properties from the first defendant? (4) Whether the plaintiff is entitled for accounts from the first defendant? (5) Whether the plaintiff is entitled for future mesne profits from the first defendant as prayed for? (6) Whether the suit has not been properly valued and proper Court fee has not been paid? (7) To what relief, is the plaintiff entitled? 9. Before the trial Court, on the side of the plaintiff, P.Ws.1 to 4 were examined and Ex.A-1 to A-26 were marked. On the side of the defendants, besides the first defendant examining himself as D.W.1, they would examine three more witnesses as D.Ws.2 to 4 and the documents examined on their part were nil. Considering the oral and documentary evidence, the trial Court has decreed the suit with costs, further giving a time of one month for delivery of possession of the suit properties. Aggrieved by that, the defendants have come forward to prefer this appeal suit on certain grounds as brought forth in the grounds of appeal. 10. Considering the oral and documentary evidence, the trial Court has decreed the suit with costs, further giving a time of one month for delivery of possession of the suit properties. Aggrieved by that, the defendants have come forward to prefer this appeal suit on certain grounds as brought forth in the grounds of appeal. 10. During arguments, the learned counsel appearing on behalf of the appellant would only reiterate the pleadings and the grounds of appeal and the evidence let it on the part of the appellant before the lower Court such as that the lower Court ought to have accepted the plea of benami as put forth by the first defendant regarding item No.3 of the plaint schedule; that the lower Court has not properly considered the defence evidence; that the lower Court ought to have found that the plaintiff has no title to the third item of the suit schedule, having accepted the motive pleaded by the first defendant for executing the sale deed in favour of the plaintiff; that the lower Court has failed to note that Exs.A-4 to A-25 have not been proved in evidence; that the lower Court erred in commenting on the non-mentioning of the theory of benami or tenancy regarding items No.1 and 2 of the suit properties and failed to note that there was no need to mention the character of the purchase of item No.3 or the tenancy regarding items No.1 and 2; that the lower Court ought to have found the tenancy pleaded by the plaintiff in evidence; that merely because there is no entry in the Record of Tenancy, the lower Court should not have rejected the tenancy pleaded by the defendants; that the documents have not been properly appreciated in evidence; that the lower Court also erred in giving a finding that the defendants are liable to pay the mesne profits; that the reasoning of the lower Court in granting the decree in favour of the plaintiff is erroneous. The learned counsel, on such arguments based on the grounds of appeal, would ultimately pray to allow this appeal setting aside the judgment and decree passed by the Court below. 11. On the other hand, no representation has been made on the part of the respondent. The learned counsel, on such arguments based on the grounds of appeal, would ultimately pray to allow this appeal setting aside the judgment and decree passed by the Court below. 11. On the other hand, no representation has been made on the part of the respondent. Therefore, this Court is left with no choice but to decide the above appeal on merits and in accordance with law, having regard to the materials placed on record and upon hearing the learned counsel for the appellant alone. 12. The suit put up by the respondent before the trial Court, i.e., the Court of Subordinate Judge, Tiruchirappalli in O.S.No.257 of 1986, is for recovery of possession of items No.1 and 2 of the suit properties, which are landed properties and for declaration of the plaintiff’s title to items 3, 4 and 5 of the suit properties and for delivery of possession consequently, which are respectively a tiled house and two huts constructed on the lands. 13. The case of the respondent/plaintiff in short is that since the plaintiff is a permanent resident of Malaysia, she was not able to do personal cultivation nor maintain the suit properties her-self direct, and therefore, in the beginning, she gave the power of attorney in favour of her father and later in favour of the first deceased appellant Singamuthu and on account of some difference, she had to cancel the power given in favour of the deceased first appellant and again gave the power in favour of her own father, who, on the date of filling of the suit, has been in possession and in enjoyment of the suit properties, on behalf of the plaintiff. 14. The plaintiff would further submit that the first and second defendants, who are also closely related to her, with ill-motived designs to squander away the suit properties for their personal ends, started moving the coins as result of which, the plaintiff had to file the suit not only for declaration of items No.3 to 5, but also for the recovery of the whole of the suit properties from the hands of the first defendant and so far as the second defendant, her step brother-in-law, is concerned, according to the plaintiff, since he was instigating and helping the first defendant meddling with the property, he has also been impleaded and for nothing else. 15. 15. On the contrary, it would be pleaded by both the defendants joining hands with each other that items No.1 and 2 have been leased out in favour of the second defendant and from the year 1970, he is cultivating the same on payment of the lease rent in favour of the first defendant, thus he being in possession and enjoyment of the suit land in items No.1 and 2 and that regarding items No.3 to 5, the first defendant would come forward to put up the plea that the tiled house constructed in the third item was put up by him only in the land purchased from out of his funds, put in the name of the plaintiff as benami, and therefore, the plaintiff is not entitled to this item of the suit property and that the first defendant was alone entitled to as the owner and occupier. 16. The further case of the first defendant is that even the thatched huts present in items No.4 and 5 have been put up by him only and that he is residing in a portion of the third item of the suit properties. The admitted case of the plaintiff is that the first defendant is in possession and enjoyment of all the items of the suit properties; that in spite of having cancelled the power of attorney given in favour of the first defendant, on advise to hand over possession with the father of the plaintiff, P.W.1 herein, the first defendant without acting upon such advise, is cultivating himself, besides being in possession and enjoyment of items No.3 to 5 of the suit properties, and therefore, she would file the suit for declaration and delivery of possession of the suit properties as extracted supra. 17. In proof of the plea of the plaintiff, she would not only examine her father as P.W.1, but also one Velu Pillai, a mason, as P.W.2 another Palaniyandi as P.W.3 and one Thangavelu, her own elder brother, as P.W.4, for documentary evidence. So far as P.W.1 is concerned, he would speak to the case of the plaintiff as pleaded in the plaint and would seek for the relief of declaration and delivery of possession as prayed for in the plaint. So far as P.W.1 is concerned, he would speak to the case of the plaintiff as pleaded in the plaint and would seek for the relief of declaration and delivery of possession as prayed for in the plaint. Twenty-six documents would be marked as Exs.A-1 to A-26, of which, Ex.A-1 is an acknowledgment given by the first defendant to P.W.1 dated 13.9.1973; Exs.A-2 to A-4 are the letter correspondences and the acknowledgments;. Ex.A-5 is the power of attorney dated 7.1.1986 given by the plaintiff in favour of P.W.1; Ex.A-6 is the notice issued by the plaintiff to the first defendant; Ex.A-7 is the reply; Ex.A-8 is the sale deed executed by one Anthonigurus in favour of the plaintiff dated 1.2.1971; Ex.A-9 is yet another sale deed in favour of the plaintiff dated 24.8.1966; Ex.A-10 is another sale deed executed by one Chidambaram in favour of the plaintiff dated 21.11.1970; Ex.A-11 dated 24.3.1953 is another sale deed executed by Ayinan Ammal and another in favour of Pappathi Ammal; Ex.A-12 is also another sale deed dated 9.11.1959 by Pappathi Ammal in favour of Anthonigurus; Ex.A-13 is a sale deed executed by Arokiasamy Pillai; Ex.A-14 is the registered mortgage deed 1.1.1971 by the plaintiff in favour of one Veerammal; Ex.A-15 dated 22.3.1974 is another registered mortgage deed executed by the first defendant in favour of one Ponnammal; Ex.A-16 is an endorsement of settlement made by Ponnammal in Ex.A-15; Exs.A-17 to A-22 are the house tax receipts, kist receipts, etc; Ex.A-23 is the patta in the name of Sulaiman; Ex.A-24 is the letter written by the first defendnat to one Muthian dated 6.12.1985; Ex.A-25 is the cover addressed to Muthian and Ex.A-26 dated 22.3.1974 is the power of attorney executed by the plaintiff in favour of the first defendant. 18. So far as the evidence of these witnesses, P.Ws.1 to 4, are concerned, P.W.1 would adduce convincing evidence to the facts and circumstances pleaded by the plaintiff in the plaint, thus stepping into her shoes and this witness would also withstand the effective cross-examination so far as establishing the facts pleaded. Moreover, the documentary evidence placed on record are clinching, standing proof of the case of the plaintiff in a cogent and convincing manner. Moreover, the documentary evidence placed on record are clinching, standing proof of the case of the plaintiff in a cogent and convincing manner. So far as P.W.2 is concerned, he is a mason and he would adduced evidence that he constructed the tiled house for and on behalf of the plaintiff and it was P.W.1, who was instrumental for engaging him and effecting payments and for supply of materials. This witness would affirm the evidence adduced by him even in the cross-examination. P.W.3, Palaniyandi, is one of the Panchayatdars, who assembled to settle the properties of the plaintiff and this witness would speak to the effect of the decision taken by the Panchayat and in revocation of which, the defendants have come forward to put up a false case. P.W.4 is one Thangavelu, who is none other than the elder brother of the plaintiff and this witness would depose to the effect that he is the attestor in Ex.A-8, a vital sale deed executed by Anthonigurus in favour of the plaintiff dated 1.2.1971. 19. On the other hand, on the part of the defendants, they would also examine four witnesses as D.Ws.1 to 4, D.W.1 being the first defendant Singamuthu, D.W.2 being the second defendant, Kannan, P.W.3 one Palaniyayee and D.W.4 one Marimuthu. These witnesses would speak to the case of the defendants, particularly, D.W.1 would speak to the evidence and the purchase of item No.3 of the suit properties from out his own funds, but in the name of the plaintiff as benami, and regarding the construction of the house by himself on the land purchased in the name of the plaintiff. Absolutely, no supporting documentary evidence has been placed nor even strong oral evidence has been adduced in a reliable manner by these witnesses for this plea taken to the benami purchase of the item No.3 of the suit properties and for the construction of the suit tiled building on it. This witness would only admit that he does not have any proof either for the expenditure made for the purchase or in any other manner to be placed before the Court on record. 20. D.W.2 would speak to the effect of leasing out of the lands in item Nos.1 and 2 in his favour by D.W.1 in August, 1974, further deposing to the effect that he is only cultivating the lands on certain conditions. 20. D.W.2 would speak to the effect of leasing out of the lands in item Nos.1 and 2 in his favour by D.W.1 in August, 1974, further deposing to the effect that he is only cultivating the lands on certain conditions. His evidence would be stoutly met with in the cross-examination with strong suggestions made on the part of the plaintiff that he is not at all either the lessee or cultivating the land in any manner. D.W.3 Palaniyaee is none other than the mother-in-law of the plaintiff i.e., the mother of the second defendant and she would come forward to adduce that it is her own son, who is cultivating the lands, residing in one of the houses therein and that he is supplying the paddy for her upkeep and maintenance from out of the yield. D.W.4 is one Manimuthu, who, alleging that he is the adjacent land owner of the suit properties, would depose that 10 years back, he purchased his lands, and therefore, he knows that it is D.W.2 who is cultivating items No.1 and 2 of the land. It is relevant to note that excepting these oral evidence, absolutely, no documentary evidence has been placed on record in proof of the case of the defendants. 21. The lower Court having traced the facts and circumstances as put forth by parties to the contest and having framed seven issues as extracted supra for determination of all the questions involved in the suit and having permitted the parties to record their evidence, both oral and documentary, in consideration of which, appreciating these evidence issue-wise and upon hearing the learned counsel for both, would ultimately answer all the issues in favour of the plaintiff, thus decreeing the suit as prayed for with costs, further granting a time of one month for delivery of possession of the suit properties by the defendants and remarking that the question of accounts and future accounts would be decided under separate proceedings taken under O.20, Rule 12, C.P.C. and it is this judgment and decree the validity of which is being testified in the above appeal suit by the defendants. 22. During the pendency of the appeal, since the first appellant had died, appellants 3 and 4 have been impleaded as his legal representatives, as per the order of this Court dated 19.7.1976 made in C.M.P.Nos.9226 to 9228 of 1996. 23. 22. During the pendency of the appeal, since the first appellant had died, appellants 3 and 4 have been impleaded as his legal representatives, as per the order of this Court dated 19.7.1976 made in C.M.P.Nos.9226 to 9228 of 1996. 23. From the evidence placed on record, both oral and documentary on the part of the plaintiff, the witnesses, who are not only independent to the subject matter, but also they have adduced natural evidence to the facts and circumstances as pleaded by the plaintiff. Moreover, the documents filed on the part of the plaintiff in Exs.A-1 to A-26 support the case of the plaintiff in no small measure for each and every fact in issue and therefore, the lower Court has arrived at easy conclusions to decree the suit as prayed for, thus accepting the case of the plaintiff in toto. On the other hand, excepting to mechanically adduce oral evidence to the pleadings of the defendants, of whom, D.Ws.1 and 2 are none other than the first and second defendants, who are the interested parties, having taken a stand against the plaintiff and the evidence of D.Ws.3 and 4 are also not impressive. It is not merely if D.W.2 comes forward to depose that he is the cultivating tenant of the lands in items No.1 and 2 residing in in of the houses therein, the facts could be held proved, but he should also establish under what authority he has become the lessee placing the proof before the Court, lest, he is not entitled to in law. Likewise, D.W.1 has also not placed any reliable evidence either for the purchase of item No.3 of the suit property in the name of the plaintiff as benami from out of his own funds, having constructed the tiled house standing there and mere allegations cannot take the place of the evidence since the averments have to be proved on the floor on strong oral and documentary evidence in which, it must be told that the defendants have miserably failed. 24. 24. In short, for all the above discussions held, particularly from the angle of approach of the suit by the lower Court in framing the issues, recording the evidence and marking the documents and ultimately appreciating the same in evidence on the legal parameters, firm conclusions have been arrived at in granting the reliefs as sought for by the plaintiff, in which, this Court does not find any valid reason to cause its interference. In result, (i) the above appeal suit does not merit acceptance, but only becomes liable to be dismissed and is dismissed accordingly; (ii) the judgment and decree dated 31.10.1988 made in O.S.No.257 of 1986 by the Court of subordinate Judge, Tiruchirappalli, is confirmed; (iii) however, in the circumstances of the case, there shall be no order as to costs.