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2012 DIGILAW 3712 (MAD)

Agotharam Pillai v. Mahalakshmi Ammal

2012-08-28

P.R.SHIVAKUMAR

body2012
Judgment :- 1. Heard the arguments advanced by Mr.V.Anand, learned counsel for the appellants. 2. The legal representatives of the first defendant in the original suit are the appellants in the second appeal. The plaintiff in the original suit figures as the first respondent. The other respondents are Defendants 2 to 6 in the Original Suit. The suit was filed by the first respondent Mahalakshmi Ammal for declaring her to be the absolute owner of the suit properties and for a consequential perpetual injunction not to interfere with her peaceful possession and enjoyment of the suit properties. Agotharam Pillai, had been arrayed as the first defendant. Respondents 2 to 6 in the second appeal had been arrayed as Defendants 2 to 6 in the Original suit. Respondents 2 to 6/Defendants 2 to 6 did not contest the suit and they remained ex parte. Agotharam Pillai, the first defendant, alone contested the suit by fling a written statement and also an additional written statement. 3. The suit was filed by the first respondent herein/plaintiff for the above said reliefs in respect of two items of properties. They are 1) 99 cents of land comprised in Re. S.No.44/4 in U.Agaram Village, Vridhachalam Taluk, Kammapuram Sub-Division, Chidambaram Registration and 2) 12 cents of land comprised in Re S.No.397/9 in Oothangal Village. It is the admitted case of both parties that the suit properties described as Items 1 and 2 originally belonged to one Kuttiyappa Konar. Kalyani Ammal was his widowed dauther-in-law and a maintenance deed executed by the said Kuttiyappa Konar in favour of Kalyani Ammal on 24.03.1930. A certified copy of the said registered deed is Ex.A2. The case of the plaintiff is that though Kalyani Ammal was given a life estate, namely a limited right in respect of an immovable property in recognition of her right to maintenance and by virtue of Section 14(1) of the Hindu Succession Act, 1956, such right came to be enlarged into an absolute estate and that from the date on which the Hindu Succession Act came into force, the said Kalyani Ammal became the absolute owner of the properties given to her under the original of Ex.A2. The further case of the plaintiff is that the said Kalyani Ammal, before her death, executed two sale deeds one in respect of Item 1 of the suit properties and the other in respect of Item 2 of the suit properties, both dated 13.02.1995, conveying the said properties to the first respondent/plaintiff by way of absolute sales; that by virtue of those sale deeds the plaintiff became the owner of the suit properties and that the plaintiff is in possession and enjoyment of the suit properties. It is the further case of the plaintiff (first respondent herein) that the defendants attempted to disturb the peaceful possession and enjoyment disputing her title and the same has necessitated her to approach the Court with the suit for declaration and injunction. 4. As pointed out supra, Respondents 2 to 6 (Defendants 2 to 6) did not contest the suit and they remained ex parte. The only contesting defendant was Agotharam Pillai, the first defendant. In the written statement filed by him, he had simply contended that the vendor of the plaintiff, namely Kalyani Ammal had been granted only a life estate and she had not been provided with a right to alienate the property or create encumbrance in respect of the properties given to her under the registered deed of maintenance. What the first defendant had contended was that after the execution of the maintenance deed in favour of Kalyani Ammal, Kuttiyappa Konar executed a registered Will on 03.10.1934 giving life estate in respect of the suit properties to his wife Amirthammal and two other persons, namely Aachikannu and Chellammal and that the Will provided for the passing of absolute title to the legal heirs of Navammal, daughter of the above said Chellammal. It is the further case of the first defendant that after the death of Kuttiyappa Konar, the said will came into force and Amirthammal, wife of Kuttiyappa Konar, executed a registered Will on 30.11.1944 in respect of the suit properties in favour of the above said Aachikannu and Chellammal giving them right to enjoy the properties for life with a further direction that the son of Navammal, the first defendant would get the properties on the demise of Aachikannu and Chellammal. By making such averment, the first defendant had contended that because of the said arrangement, the life estate of Kalyani Ammal given to her under Ex.A2 would not get enlarged into an absolute estate. Besides the above said averments, the first defendant had also contended that the sale deeds allegedly executed by Kalyani Ammal in favour of the plaintiff were not supported by consideration and they were sham and nominal. It was also the contention of the first defendant that Kalyani Ammal, who had only a limited right and did not have absolute title, could not have conveyed a valid title to the plaintiff. Incidentally, the first defendant had also denied the plea of the first respondent/plaintiff that she was in possession and enjoyment of the suit properties and the defendants were attempting to trespass into the same. 5. The first defendant Agotharam Pillai also filed an additional written statement in which also no specific denial of execution of the maintenance deed was made. On the other hand, the first defendant had taken a stand that the settlement under the maintenance deed was not acted upon and Kalyani Ammal was not in possession when the Hindu Succession Act came into force to cause enlargement of her limited estate into an absolute estate under Section 14(1) of the Hindu Succession Act. Besides making such an averment, the first defendant had also stated that after the filing of the suit, taking advantage of the ex parte decree and also an order of interim injunction, plaintiff took possession of the first item of the suit properties and the first defendant was contemplating measures in a separate proceeding for the retrieval of possession of the first item from the plaintiff. 6. Based on the above said pleadings, the learned trial Judge framed 6 issues and 3 additional issues and conducted trial. In the trial three witnesses were examined as Pws 1 to 3 and 5 documents were marked as Exs.A1 to A5 on the side of the plaintiff. Including the first defendant three witnesses were examined on the side of the contesting defendant and 22 documents marked as Exs.B1 to B22 on the side of the defendants. Through the second witness, namely DW2, one document has been marked as Ex.X1. 7. Including the first defendant three witnesses were examined on the side of the contesting defendant and 22 documents marked as Exs.B1 to B22 on the side of the defendants. Through the second witness, namely DW2, one document has been marked as Ex.X1. 7. The learned trial Judge, at the conclusion of trial, on an appreciation of evidence, came to the conclusion that the maintenance deed did not contain any reference to item 2 of the suit properties and hence, the prayer of the plaintiff in respect of the second item was bound to fail. So far as the first item is concerned, the learned trial Judge held that though the maintenance deed was not disputed, the plaintiff failed to prove by documentary evidence that Kalyani Ammal was in possession of the first item of the suit properties when Hindu Succession Act, 1956 came into force. Based on the said finding, the learned trial Judge non-suited the plaintiff for all the reliefs sought for by her and dismissed the suit by a judgment and decree dated 29.01.2010. 8. As against the same, the first respondent / plaintiff preferred an appeal in A.S.No.37 of 2010 on the file of the learned Principal Subordinate Judges Court, Vriddhachalam. The learned Principal Subordinate Judge, upon hearing the appeal, concurred with the finding of the trial Court that the vendor of the plaintiff, namely Kalyani Ammal was not given any right or interest in Item No.2 of the suit properties and that hence the first respondent herein/plaintiff could not have derived valid title by Ex.A4 sale deed. So far as Item No.1 of the suit properties is concerned, learned lower appellate Judge referred to the absence of pleadings in the written statement as well as the additional written statement of the contesting defendant, namely Agotharam Pillai and came to the conclusion that the contesting defendant Agotharam Pillai failed to prove his contentions: 1) that the maintenance deed, a certified copy of which was marked as Ex.A2, was not acted upon and 2) that Kalyani Ammal never got possession of the first item of the suit properties by virtue of the life estate conferred on her under Ex.A2. Ultimately, referring to the other contention of the first defendant that the first defendant had perfected title of adverse possession also and also pointing out the fact that the first defendant, by filing additional written statement, had admitted the possession of the plaintiff in respect of the first item of suit properties by making plea that the first respondent/plaintiff took possession of the first item after the filing of the suit, rendered a finding that the first item of suit properties was all along in the possession of the Kalyani Ammal, the vendor of the plaintiff and that after the execution of the sale deed, a copy of which has been marked as Ex.A3, the same came to be possessed by first respondent/the plaintiff herein. Accordingly, the learned first appellate Judge allowed the appeal in part and decreed the suit in respect of the prayers for declaration and permanent injunction so far as Item No.1 of the suit properties alone is concerned and confirmed the dismissal of the suit in respect of Item No.2 of the suit properties. 9. The said Judgment and decree of the lower appellate Court dated 08.09.2011 is challenged in the present second appeal. Since the first defendant Agotharam Pillai died after the pronouncement of the judgment by the lower appellate Court, his legal representatives have come forward with the present second appeal. Learned counsel for the appellant argued that since first respondent/plaintiff has not produced any document to show that the suit first item was in possession and enjoyment of Kalyani Ammal before Ex.A3 sale deed; that on the other hand the first defendant was able to produce so many documents showing that the patta, chitta and adangal were in the name of Amirthammal; that not only Kuttiyappa Konar but also Amirthammal chose to execute Wills bequeathing the very same properties giving life estate in favour of others and absolute right to the first defendant Agotharam Pillai subject to such life interest; that Kist receipts were also issued to the first defendant Agotharam Pillai and that the said documents would prove that the maintenance deed executed by Kuttiyappa Konar in favour of Kalyani Ammal on 23.03.1930 was not given effect to and Kalyani Ammal did not get possession of the properties. It is the further argument advanced by the learned counsel for the appellant that since the maintenance deed was not acted upon and Kalyani Amal could not have been in possession of the first item of the suit properties when the Hindu Succession Act, 1956 came into force, the limited right given to her under the maintenance deed would not have enlarged into an absolute title and that therefore, the first defendant's case should have been accepted and the suit should have been dismissed in toto. 10. Upon perusing the judgments of the Courts below and also the documents produced in the form of typed-set of papers including the pleadings, this Court is not in a position to accept the above said contention of the learned counsel for the appellant. Nowhere in the written statement, the defendant had stated that the original of Ex.A2 - Maintenance deed was a sham and nominal one and it was not given effect to. On the other hand, he had taken a stand that as per the maintenance deed, Kalyani Ammal was given only a life estate without the power of alienation or encumbrance and hence, she could not have conferred valid title on the first respondent herein/plaintiff. The next contention raised by the first defendant in his written statement was that the sale deeds executed by Kalyani Ammal in favour of the plaintiff were sham and nominal and they were not supported by consideration. That being the nature of the pleadings made by the contesting defendant, namely the first defendant, in his original written statement, a shift in his stand was made in the additional written statement, as an after thought, because of the plea taken by the plaintiff that originally Kalyani Ammal had been granted a life estate and it enlarged into an absolute estate on the coming into force of the Hindu Succession Act. Only in that additional written statement, the contesting defendant, namely the first defendant had taken a stand that the maintenance deed was not acted upon. A consideration of the documents relied on by the contesting defendant would show that such a plea was taken only as an afterthought . 11. Only in that additional written statement, the contesting defendant, namely the first defendant had taken a stand that the maintenance deed was not acted upon. A consideration of the documents relied on by the contesting defendant would show that such a plea was taken only as an afterthought . 11. Kuttiyappa Konar, who was the author of the maintenance deed, in which life estate was given to Kalyani Ammal, had chosen to carefully omit Item No.1 of the suit properties in his Will dated 03.10.1934, which has been marked as Ex.P2. If at all the maintenance deed was not intended to be acted upon and it was not acted upon, Kuttiyappa Konar would not have chosen to omit to include Item No.1 of the suit properties in his Will. Even the Will executed by Amirthammal after the death of Kuttiyappa Konar, which has been marked as Ex.B3 purports to give effect to the Will of Kuttiyappa Konar since she has stated therein that the other two life estate holders as per Ex.B2 Will, shall have the life interest even after her death and only on the death of those two persons the property would go to the first defendant, who was the son of Navammal. Though the Will of Kuttiyappa Konar and the Will of Amirdhammal refer to the legal heirs of Navammal as the ultimate legatees, there is absence of evidence whether there are any other legal heirs of Navammal apart from the first defendant Agotharam Pillai. Till the advent of the Hindu Succession Act, 1956, it was quite natural for the parties to think that the life estate given in lieu of maintenance in favour of Kalyani Ammal was only a limited estate and that is the reason why they seem to have proceeded on the assumption that the ultimate legatees were the persons having the right of absolute title. 12. Of course, it is true that Adangal extracts and Chitta extracts have been filed to show that they were in the name of Amirdhammal and Kist had been paid in the name of Agotharam Pillai. The mere fact that revenue records came to be changed, showing the subsequent life estate holders and the ultimate legatee to be the pattadhars, will not be enough to deny the title of Kalyani Ammal, who was given life estate in lieu of maintenance. The mere fact that revenue records came to be changed, showing the subsequent life estate holders and the ultimate legatee to be the pattadhars, will not be enough to deny the title of Kalyani Ammal, who was given life estate in lieu of maintenance. Even in the land acquisition proceedings, copies of which have been marked as Exs.P17 to P20, Kalyaniammal had been shown to be a life estate holder by virtue of the maintenance deed. Above all, in the absence of concrete pleadings and evidence that Kalyani Ammal was not given possession of the first item of the suit properties as per Ex.A2 and in the light of the fact that the subsequent Will of Kuttiyappa Konar did not deal with Item No.1 of the suit properties in his Will and in the light of the fact that first defendant took a stand that Kalyani Ammal did have only a right to life estate and she did not have the right to alienate or encumber, this Court cannot find fault with the finding of the lower appellate Court that the contesting defendant had miserably failed to prove that the maintenance deed was not acted upon. This Court is also satisfied with the correctness of the approach made by the first appellate Court in relying on the admission made by the first defendant in the additional written statement that the suit first item is in possession of the first respondent herein/plaintiff, while making a novel contention that after the filing of the suit and by virtue of an interim order of injunction the plaintiff had taken possession of the first item of the suit properties. What is the date on which possession of the first item was taken by the plaintiff? -has not been spoken to by the contesting defendant and the witnesses examined on his side. On the other hand, evidence was sought to be adduced to the effect that even the first item was in the possession of the first defendant till his death. No document has been produced to show that the first defendant or the appellants herein have taken any steps in a Court of law for recovery of possession of the suit first item. No document has been produced to show that the first defendant or the appellants herein have taken any steps in a Court of law for recovery of possession of the suit first item. The learned First appellate Judge, on a proper re-appreciation of evidence, as it is expected to, has come to a correct conclusion that the first defendant failed to prove the contention that the maintenance deed was not acted upon and the vendor of the plaintiff, namely Kalyani ammal was not in possession of the suit property at any point of time, much less on the date on which the Hindu Succession Act, 1956 came into force. 13. It is quite obvious that even the plea of adverse possession taken by the first defendant has not been substantiated by reliable evidence. What is the date from which the suit first item came to be in possession of the first defendant and what is the date from which it became the possession adverse to the Kalyani Ammal or adverse to the plaintiff has not been clarified. There is absence of necessary plea besides absence of reliable evidence. Under such circumstances, the principle that possession follows title has to be applied and the learned first Appellate Judge applying the correct principle of law has come to the correct conclusion that the suit prayers made by the first respondent herein/plaintiff for declaration and injunction had to be allowed in respect of the first item of the suit properties alone and that at the same time the, suit deserves to be dismissed in respect of the second item of the suit properties as the same was not covered by Ex.A1 maintenance deed. This court does not find any defect or infirmity in the well considered judgment of the lower appellate Court. No substantial question of law is proved to have been involved in this second appeal for decision of this Court and no substantial question of law is shown to have been decided wrongly by the lower appellate Court. The lower appellate Court has decided all the questions of law correctly and applied correct principles of law in arriving at a conclusion that the plaintiff was entitled to a decree in respect of the first item alone whereas the plaintiff's case was liable to be dismissed in respect of the second item. 14. The lower appellate Court has decided all the questions of law correctly and applied correct principles of law in arriving at a conclusion that the plaintiff was entitled to a decree in respect of the first item alone whereas the plaintiff's case was liable to be dismissed in respect of the second item. 14. For all the reasons stated above this Court comes to the conclusion that this second appeal deserves to be dismissed. Accordingly, the second appeal is dismissed. No costs. Consequently, the connected miscellaneous petition is closed.