Judgment : 1. The parties are referred to, as per the nomenclature assigned to them, in the suit filed in O.S.No.336 of 1995, wherein Yashothai Ammal is the first plaintiff, Ezhumalai is the second plaintiff, Gandhi is the first defendant and Krishnan is the second defendant. 1.1. Krishan is the plaintiff in O.S.No.273 of 1996 where-under Yashothai Ammal and Ezhumalai are defendants 1 and 2. 1.2. Gandhi is the plaintiff in O.S.No.276 of 1996, in which Yashothai Ammal and Ezhumalai are defendants 1 and 2. 2. Suit in O.S.No.336 of 1995 was filed by the plaintiffs for declaration of plaintiffs' title to the suit property and for directing the defendants to deliver possession of the suit property to the plaintiffs. 3. The genealogy of the parties and case details are important to explain the case properly and clearly, which reads thus: Genealogy of the parties Joint Property in the name of Poongavana Gounder …………………………………………………. ¦ ………………………………………………….. ¦ ¦ ¦ Poongavana Gounder (died) Chinnapaiya Gounder Chinnakutti Gounder ¦ Wife – Yashothai (P1) ¦ Defendant ¦ ¦ subsequent ¦¦Purchaser Elumalai (P2) Pachaiyammal (No issue) Case Details S. No. Parties to O.S. No. 336/1995 Parties to A.S. No. 19/2003 Parties to S.A. No. 915/2005 Plaintiffs Defendants Appellants Respondent Appellants Respondent 1. 1. Yasothai Ammal 2. Ezhumalai 1. Gandhi 2. Krishnan 1. Gandhi 2. Krishnan 1. Yasothai Ammal 2. Ezhumalai 1. Gandhi 2. Krishnan 1. Yasothai Ammal 2. Ezhumalai S. No. Parties to O.S. No. 273/1996 Parties to A.S. No. 32/2003 Parties to S.A. No. 916/2005 Plaintiffs Defendants Appellants Respondent Appellants Respondent 1. Krishnan 1. Yasothai Ammal 2. Ezhumalai Gandhi Gounder 1. Yasothai Ammal 2. Ezhumalai Krishnan 1. Yasothai Ammal 2. Ezhumalai S. No. Parties to O.S. No. 276/1996 Parties to A.S. No. 23/2003 Parties to S.A. No. 917/2005 Plaintiffs Defendants Appellants Respondent Appellants Respondent 1. Gandhi 1. Yasothai Ammal 2. Ezhumalai Gandhi Gounder 1. Yasothai Ammal 2. Ezhumalai Gandhi Gounder 1. Yasothai Ammal 2. Ezhumalai Brief facts:- 4. The suit property is an extent of 52 cents situated in Nambedu Village, Polur Taluk, Tiruvannamalai District. The suit property originally belonged to Poongavana Gounder, who is the husband of the first plaintiff and father of the second plaintiff. The suit property was purchased by Poongavana Gounder, through a sale deed, dated 12.04.1942, in the capacity as eldest member of the joint hindu family. The suit property originally belonged to Poongavana Gounder, who is the husband of the first plaintiff and father of the second plaintiff. The suit property was purchased by Poongavana Gounder, through a sale deed, dated 12.04.1942, in the capacity as eldest member of the joint hindu family. The two brothers of Poongavana Gounder, namely, Chinnapaiya Gounder and Chinnakutty Gounder were the members of the joint family. 4.1. In the year 1980, there was an oral partition among all the three of them, covering the suit property as well as other joint family properties. In the oral partition, the suit property along with other items were allotted to the share of Poongavana Gounder. Thereafter, the suit property was in separate possession of Poongavana Gounder. Poongavana Gounder died leaving behind the plaintiffs as Legal Representatives. 4.2. The defendants are divided paternal uncles' sons. They have no right over the suit property. They unlawfully took possession of the suit properties by the end of the year 1994. The documents created by them will not bind the plaintiffs. The defendants should be restrained from alienating or encumbering the suit properties. 4.3. The case of Gandhi Gounder (the first defendant in O.S.No.336 of 1995 and the plaintiff in O.S.No.276 of 1996) is as follows:- In the year 1986, there was an oral partition by way of family arrangement in respect of the suit property as well as other joint family properties; the suit property was allotted to the share of Chinnapaiya Gounder; Chinnapaiya Gounder executed a settlement deed, dated 05.08.1993, in favour of his wife, Pachaiyammal; she accepted the settlement and acted upon the same; Pachaiyammal sold the part of the property, i.e., 26 cents, to Gandhi Gounder on 04.07.1995; thereafter, Gandhi Gounder was in possession and enjoyment of the suit property; hence, the claim of declaration and injunction. 4.4. 4.4. The case of Krishnan (the second defendant in O.S.No.336 of 1995 and the plaintiff in O.S.No.273 of 1996) runs thus:- The suit property was allotted to Chinnapaiya Gounder in the oral partition in the year 1986, between Chinnapaiya Gounder, Chinnakutty Gounder and Poongavana Gounder; Chinnapaiya Gounder settled the property in favour of his wife; she sold the part of the suit property to Krishnan, i.e., 26 cents, on 04.07.1995 and from then onwards, Krishnan is in possession and enjoyment of the suit property; hence, the suit for declaration and injunction was filed by Krishnan (in O.S.No.273 of 1996). 5. The trial court relied upon the documents, i.e., Ex.A-2-patta and Ex.A-3-UDR Patta (Patta No.237, dated 27.04.1984), which stood in the name of Poongavana Gounder. The trial court critically analysed the circumstances, i.e., the sub-division that has been made after the original grant of patta and grant of patta under the respective sub-division covering the property allotted to each of the brothers and came to the conclusion that the allotment of patta was an indication towards claim of title by virtue of the oral partition. The trial court also considered the adangal extract under Exs.A-8, A-9 and A-10 and came to the conclusion that the plaintiffs had proved their continuous possession right from the year 1987 to 1992. 5.1. This finding has been arrived at by the trial court considering the contention that the oral partition was in the year 1980, i.e., even assuming that there had been an oral partition only in the year 1986 and not in the year 1980, even then, the continuous possession from 1987 to 1992 would probablise the case of the plaintiffs that the property was allotted to the share of Poongavana Gounder; the continuous possession would speak about the allotment of property to the share of Poongavana Gounder in the oral partition. 5.2. Under Ex.B-2 Chinnapaiya Gounder had settled the property in favour of his wife Pachaiyammal and through Pachaiyammal only, Gandhi and Krishnan are claiming titles. A pertinent remark has been made by the trial court that Ex.B-2 settlement deed did not trace out the antecedent title of the settlor or how Chinnapaiya Gounder came to hold the property in his individual capacity. A pertinent remark has been made by the trial court that Ex.B-2 settlement deed did not trace out the antecedent title of the settlor or how Chinnapaiya Gounder came to hold the property in his individual capacity. Hence, it was held that the settlement deed executed by Chinnapaiya Gounder in favour of his wife Pachaiyammal was not valid and therefore, Pachaiyammal had no marketable title to convey the property in favour of either Krishnan or Gandhi, i.e., under Exs.B-3 or B-5. 5.3. On these findings the suit filed by the plaintiffs in O.S.No.336 of 1995 has been decreed. 6. Challenging the judgment and decree in O.S.Nos.276 of 1996 and 273 of 1996, respectively, two appeals had been filed; one by Gandhi Gounder in A.S.No.23 of 2003 and another by Krishnan in A.S.No.32 of 2003; both of them together have filed an appeal in A.S.No.19 of 2003 against the judgment and decree in O.S.No.336 of 1995. 7. Whether the suit property in S.No.189, acre 0.52, was allotted to the share of Poongavana Gounder or Chinnapaiya Gounder, is the main issue which was canvassed before the trial court and the first appellate court. Had it been allotted to the share of Chinnapaiya Gounder, whether the settlement deed executed by Chinnapaiya Gounder in favour of his wife and the sale deeds executed by his wife in favour of Gandhi Gounder and Krishnan are valid, is the further question raised before the Courts below. 8. Whether the admission said to have been made by P.W.1 and his conduct would amount to estoppel and whether the estoppel would operate against the plaintiffs in claiming title to the suit property, is the issue raised in the second appeal. 9. The following are the substantial questions of law framed at the time of admission of Appeals:- “1) Whether the evidence, conduct and character of PW1 have not established that the suit property was allotted to the share of Chinnapaiya Gounder? 2) The lower Courts are not right in relying upon evidence of PW2 who is not a party having any knowledge about the partition and having hostile interest against the appellants? 3) Whether the plaintiff is not estopped from claiming the title of the suit properties in view of his admission and his conduct and whether the plea of estoppel is not available against the plaintiff?” 10. 3) Whether the plaintiff is not estopped from claiming the title of the suit properties in view of his admission and his conduct and whether the plea of estoppel is not available against the plaintiff?” 10. In order to appreciate the contentions raised in the second appeals, it is necessary to consider the admitted facts. 11. The following are the admitted facts:- (i) The suit property was purchased by Poongavana Gounder in the capacity as Kartha of the joint family property, by virtue of the sale deed, dated 12.04.1942, under Ex.A-1. (ii) There was an oral partition among the three members of the joint family, i.e., Poongavana Gounder, Chinnapaiya Gounder and Chinnakutty Gounder, which according to the plaintiffs, was in the year 1980 and according to defendants, it was in the year 1986. 12. The contention of the plaintiffs is that, subsequent to the oral partition, the plaintiffs were in continuous possession and enjoyment of the suit property, which would prove the oral partition. 12.1. But the contention of the defendants is that, only because the suit property was allotted to the share of Chinnapaiya Gounder, he executed the settlement deed in favour of his wife and therefore, his wife had every right to execute the sale deeds in favour of them. 12.2. The judgment of the trial court would go to show that the continuous possession and enjoyment of the property by the plaintiffs stand established through documentary evidence, probabilising the case of the plaintiffs that the suit property had been allotted in favour of Poongavana Gounder. 12.3. So far as the case of defendants is concerned, it is for them to establish that the suit property was allotted to the share of Chinnapaiya Gounder. The documentary evidence produced before the Courts below do not indicate that the alleged allotment of property in favour of Chinnapaiya Gounder might have been true. Instead, there is a positive evidence negativing the contention that it was allotted to Chinnapaiya Gounder. It is the positive evidence of P.W.2, Kasiammal, who is the daughter of Chinnapaiya Gounder, through his first wife, Kuppammal. She has clearly stated in her evidence that the suit property was allotted to the share of Poongavana Gounder and not to her father. Instead, there is a positive evidence negativing the contention that it was allotted to Chinnapaiya Gounder. It is the positive evidence of P.W.2, Kasiammal, who is the daughter of Chinnapaiya Gounder, through his first wife, Kuppammal. She has clearly stated in her evidence that the suit property was allotted to the share of Poongavana Gounder and not to her father. It is contended that her evidence should not be accepted, as she would have got the grievance that Chinnapaiya Gounder had executed the settlement deed in favour of his second wife and not in favour of her. 12.4. This contention cannot be accepted. As a married daughter, she would not have expected her father to execute a settlement deed in favour of her. As per custom, she would have expected only some goods in the form of customary gifts and not the property, as it was not customary to give properties to married daughters, during those years. According to her evidence, the marriage was performed prior to partition and it was performed not only by her father but also by her junior and senior paternal uncles (Chitthappa and Periyappa). Therefore, in all probability, she might have had knowledge regarding the oral partition. Moreover, nothing has been established to show that P.W.2 was inimically disposed of towards her father. Under normal circumstances, it would be very difficult to expect any daughter to speak against her father even assuming that she had the grievance that no property was given to her. 12.5. Moreover, the competent person to speak about the oral partition is Poongavana Gounder, Chinnapaiya Gounder and Chinnakutty Gounder. Out of three, Poongavana Gounder was dead on the date of examination of the witnesses. Therefore, Chinnapaiya Gounder ought to have been examined to speak about the oral partition, when there is a specific claim that it was allotted to the share of Chinnapaiya Gounder. When the best evidence was not made available to the Court, the inference is that the evidence of Chinnapaiya Gounder, if made available, would not be in favour of the case of the defendants. There is no explanation as to why he was not examined. 12.6. A perusal of Ex.B-2 settlement deed executed by Chinnapaiya Gounder in favour of his wife did not whisper anything about the title of the executant. There is no explanation as to why he was not examined. 12.6. A perusal of Ex.B-2 settlement deed executed by Chinnapaiya Gounder in favour of his wife did not whisper anything about the title of the executant. If really, if it had been allotted to Chinnapaiya Gounder in the oral partition, nothing prevented Chinnapaiya Gounder from disclosing that he is the owner by virtue of the allotment of the property in the oral partition. The non disclosure of source of title by the executant would be indicative of the fact that he has no marketable title or he has no title at all to convey. 12.7. If really the property had been allotted in favour of Chinnapaiya Gounder, documents evidencing possession in favour of him should have been filed. When it is not filed, the inference is that, he had not been in possession, which again is indicative of the non-allotment of the property in favour of Chinnapaiya Gounder in the partition. 13. The next contention is that there is an admission by the second plaintiff himself that patta stood in the name of his father, only because he was the eldest member in the joint family and therefore, the availability of patta in the name of plaintiffs' father will not improve the case of the plaintiffs. 13.1. This contention cannot be accepted as the evidence cannot be read in piece meal. The evidence has to be interpreted, by reading the whole evidence and not by truncating the evidence. The Court cannot omit the evidence that his father was allotted patta in respect of the property which was allotted to him in the partition. 14. The next contention is that the second plaintiff himself has admitted that he did not raise any objection at the time when Chinnapaiya Gounder executed a settlement deed in favour of his wife. 14.1. Here also, the way of reading the evidence comes into picture. The sum and substance of the evidence is that he did not know whether the settlement was executed in the year 1993. The inference from this evidence is that he has no knowledge regarding the execution of the settlement deed. When he has no knowledge regarding the execution of settlement deed, the opportunity of raising objection was not available and hence, did not arise for consideration at all. The inference from this evidence is that he has no knowledge regarding the execution of the settlement deed. When he has no knowledge regarding the execution of settlement deed, the opportunity of raising objection was not available and hence, did not arise for consideration at all. Therefore, the evidence that he did not raise any objection regarding execution carries no meaning, when he has no knowledge regarding the execution of the settlement deed. His evidence reads as under:- “TAMIL” 15. The final contention of the appellants is that, Ezhumalai has admitted in his evidence that had he known about the sale of the property by Pachaiyammal he would have purchased the property and that the inference which could be drawn is that there is an indirect admission of title in favour of Pachaiyammal. 15.1. This contention is far-fetched. A perusal of entire evidence of Ezhumalai would go to show that he himself has already purchased lot of items from Chinnapaiya Gounder under Ex.B-1. He had denied the knowledge regarding execution of settlement deed, by Chinnapaiya Gounder, in favour of Pachaiyammal. He has also stated that he did not even know the details regarding the suit filed by Krishnan and Gandhi. When he was asked, whether he objected the sale by Panchaiyammal in favour of Krishnan and Gandhi, he has stated that he did not know anything about the sale deed executed by Pachaiyammal. Further, he would state that, it is his property and therefore, he did not ask about that. Therefore, the cumulative effect of evidence of the witness, Ezhumalai, would only go to show that the evidence that he would have purchased the property might have been given in ignorance of the nature of the questions put or without understanding the question as to whether it is pertaining to the suit property or not. Hypothetical questions and the hypothetical answers cannot be given much importance, ignoring the positive evidence given by the witness. 14. Therefore, there are no grounds to interfere with the concurrent findings of the Courts below and hence, the second appeals are dismissed. Consequently, the connected CMPs are closed. No costs.