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2015 DIGILAW 2263 (MAD)

Komara Govindan v. C. Govindan

2015-06-22

R.MALA

body2015
Judgment : 1. The second appeal arises out of the judgment and decree dated 15.07.2003 in A.S.No.85 of 2002 on the file of the II Additional District Court, Salem, confirming the judgment and decree dated 30.07.2002 in O.S.No.659 of 1999 on the file of the Principal District Munsif Court, Salem. 2. The averments made in the plaint are as follows:- (i) One Komara goundan, son of Kanda Goundan owned and possessed the suit property. He executed a settlement deed dated 02.03.1955 in favour of his daughter Velammal giving her life estate and after her death, the properties are vested to her sons. So Velammal was in possession and enjoyment of the suit property ever since the date of settlement deed. (ii) Subsequently, on 26.11.1957, the said Velammal executed a settlement deed in favour of her brother Komara Goundan, the defendant herein, subject to the condition that he should maintain her father and so the defendant is in possession of the suit property. Velammal died on 28.08.1997. The plaintiff is her only son and he is entitled to possess the suit property from 28.08.1997. The settler Velammal had only life estate on the suit property, as such what was given to the defendant under the settlement deed dated 26.11.1957 was only a life estate, which was come to an end on 28.08.1997 (i.e.) on the date of death of Velammal. (iii) The plaintiff learnt to know that the suit property is vested to him by virtue of settlement deed dated 02.03.1955 subsequent to the death of his mother. The plaintiff being the holder of the vested interest is entitled to the possession of the suit property, hence the plaintiff demanded delivery of possession from the defendant on 26.05.1999. Since the defendant is evasive and try to alienate the suit property, the plaintiff forced to file the suit for direction to the defendant to deliver possession of the suit property and grant future mesne profits and also grant permanent injunction against the defendant restraining him from alienating or making encumbrance over the suit property till the plaintiff is put in possession of the suit property. Therefore, he prayed for decree. 3. The gist and essence of the written statement filed by the defendant are as follows: (i) The defendant admitted the execution of settlement deeds dated 02.03.1955 and 26.11.1957 and he is in possession and enjoyment of the suit property. Therefore, he prayed for decree. 3. The gist and essence of the written statement filed by the defendant are as follows: (i) The defendant admitted the execution of settlement deeds dated 02.03.1955 and 26.11.1957 and he is in possession and enjoyment of the suit property. He alone has paid kists due to the Government and maintained his father throughout till his death in the year 1959. It is true that Velammal died in 1997. (ii) The property was given to Velammal by her father giving the life estate with intention to help his daughter throughout the life. In other words, it is manifest that the property was given for her maintenance in her life time only at the request of Velammal. (iii) After passing of Hindu Succession Act, 1956, as per Section 14(1) of the Act, the property would be given to the female before or after the commencement of the said Act will get absolute estate and the settlee will get absolute right to deal with the said property and in that capacity, she executed the settlement deed in favour of the defendant on 26.11.1957. Therefore, the plaintiff's claim that he can get the suit property after the life time of Velammal cannot be sustained in law. Further, the possession was throughout with the defendant, so the settlement deed dated 02.03.1955 is not acted upon. The defendant has no intention to alienate or encumber the suit property, he is the lawful owner and in possession and enjoyment of the suit property. Therefore, he prayed for dismissal of the suit. 4. The Learned Trial Judge after considering the averments both in the plaint and written statement and arguments on either side counsel, has framed necessary issues and on perusing the oral and documentary evidence viz., P.W.1, D.W.1 to D.W.3 and Exs.A1 to A4 and Exs.B1 to B7, decreed the suit except future mesne profits. Aggrieved against the judgment and decree passed by the trial court, the defendant preferred an appeal in A.S.No.85 of 2002 on the file of II Additional District Court, Salem. 5. The learned First Appellate Court has considered the arguments advanced on either side, framed necessary point for consideration, confirmed the Judgment and Decree passed by the Trial Court. Against the Decree and Judgment passed by the first Appellate Court, the present second appeal has been preferred by the defendant/appellant. 6. 5. The learned First Appellate Court has considered the arguments advanced on either side, framed necessary point for consideration, confirmed the Judgment and Decree passed by the Trial Court. Against the Decree and Judgment passed by the first Appellate Court, the present second appeal has been preferred by the defendant/appellant. 6. At the time of admission, the following substantial questions of law have been framed: “1. Whether the Courts below erred in law in granting a decree for the plaintiff on the basis of Ex.A1 when the plaintiff failed to prove that Ex.A1 was acted upon? 2. Whether the Courts below were wrong in concluding the plaintiff is entitled to the suit property in the light of Ex.A1 when the Gift under Ex.A1 was not complete due to the absence of evidence regarding the delivery of property gifted under Ex.A1 to the settlee?” 7. Challenging the concurrent findings of both the Courts below, learned counsel for the defendant/appellant submits that the settlement deed dated 02.03.1955 was not accepted and acted upon. As per Ex.A2, settlement deed dated 26.11.1957 executed by Velammal in favour of the defendant, the defendant is the owner of the suit property and he is in possession and enjoyment of the same. So the plaintiff/respondent cannot claim any right over the suit property on the basis of Ex.A1. But both the Courts below erroneously decreed the suit, therefore he prayed for allowing the second appeal by setting aside the judgment and decree passed by both the Courts below. 8. Resisting the same, learned counsel for the plaintiff/respondent submits that settlement deed dated 02.03.1955 is effected and then only Ex.A2 settlement deed which was executed in favour of defendant came into existence. In Ex.A2, it was specifically mentioned that the defendant/appellant has not taken care of his father and hence before the Panchayat, it was agreed that Velammal has executed a settlement deed in favour of defendant on condition that the defendant should maintain his father till his lifetime. It is clearly proved that Ex.A1 settlement deed is accepted and acted upon. So both the Courts below have rightly considered all the above aspects and decreed the suit. Therefore, he prayed for dismissal of the second appeal. 9. Considered the rival submissions made on both sides and perused the materials available on record. 10. It is clearly proved that Ex.A1 settlement deed is accepted and acted upon. So both the Courts below have rightly considered all the above aspects and decreed the suit. Therefore, he prayed for dismissal of the second appeal. 9. Considered the rival submissions made on both sides and perused the materials available on record. 10. Originally, the suit property owned to one Kumara Goundan, father of the appellant herein and he executed a settlement deed dated 02.03.1955 in favour of his daughter Velammal giving her life estate and after her death, the property is vested to the male child born through her. Velammal is none other than the mother of the plaintiff/respondent herein. Subsequently, Velammal had executed a settlement deed on 26.11.1957 in favour of appellant/defendant with the condition to maintain her father and ever since the date of settlement deed, the defendant is in possession and enjoyment of the suit property. Velammal died on 28.08.1997. After her death, plaintiff demanded the suit property from the defendant, but he refused to deliver the same. Since the defendant/appellant is tried to alienate the suit property, the plaintiff/respondent has filed a suit for recovery of possession and also injunction restraining the defendant not to alienate or encumber the suit property and for direction to the defendant to pay future mesne profits. Both the Courts below decreed the suit, against which, the present second appeal has been preferred by the defendant/appellant. 11. Now this Court has to decide whether Ex.A1 settlement deed dated 02.03.1955 was validly executed, duly attested, accepted and acted upon? Admittedly, Velammal, the mother of the plaintiff/respondent, is no more. On a perusal of Ex.A1 settlement deed reveals that unless it is not accepted and acted upon, Ex.A2 settlement deed which was executed by the deceased Velammal in favour of her brother/defendant/appellant cannot be executed. So it clearly shows that Ex.A1 settlement deed dated 02.03.1955 was validly executed, duly attested, accepted and acted upon. In the recital in Ex.A2 itself proved that Ex.A1 is true and genuine. 12. Furthermore, as per Ex.A1 settlement deed, Velammal was given only a life estate and she can entitled to enjoy the suit property till her life time. After her life time, the male child born through her alone is entitled to the suit property absolutely. In the recital in Ex.A2 itself proved that Ex.A1 is true and genuine. 12. Furthermore, as per Ex.A1 settlement deed, Velammal was given only a life estate and she can entitled to enjoy the suit property till her life time. After her life time, the male child born through her alone is entitled to the suit property absolutely. Admittedly, Velammal is having only one son, the respondent herein and five daughters and the same was evidenced by Ex.A3/legal heir certificate. In such circumstances, the plaintiff/respondent alone as the only son of Velammal is entitled to the suit property. 13. According to the learned counsel for the defendant/appellant, the appellant has prescribed title by adverse possession for his long, open, continuous possession and without interruption for more than 12 years to the knowledge of the true owner namely, the plaintiff and his mother. But the above argument does not hold good. On the basis of Ex.A2 settlement deed, the defendant is in possession and enjoyment of the suit property. So he was not in possession of the suit property adversed to the interest of owner of the suit property. Unless he admitted the title of third party, adversed to the interest of the true owner, he is in possession and enjoyment of the suit property openly, continuously and uninterruptedly for more than 12 years and then only he acquired title by prescription. It is to be noted that from the date of death of Velammal (i.e.) 28.08.1997 onwards, the plaintiff/respondent was holding vested interest over the suit property, so he filed the suit within 12 years. Hence the argument advanced by the learned counsel for the defendant/appellant that the defendant prescribed title by adverse possession does not merit acceptance. 14. Furthermore, as per the decision of the Apex Court reported in AIR 1996 Supreme Court 910, Mohan Lal through his Lrs Kachru and others v. Mira Abdul Gaffar and another, it was held that when a party is in possession of suit land pursuant to an agreement of sale, then he cannot claim title by adverse possession. Thus, the party cannot approbate and reprobate. It is appropriate to incorporate paragraph 4 of the said decision: “4. As regards the first plea, it is inconsistent with the second plea. Thus, the party cannot approbate and reprobate. It is appropriate to incorporate paragraph 4 of the said decision: “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., upto completing the period of his title by prescription nec vi nec clam nec precario. Since the appellant's claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.” 15. In an another decision of this Court reported in 2005 (2) CTC 58 , Neelavathi v. Shanmugam and another, it was held that the plaintiff relying upon a document of title cannot claim title by adverse possession or prescriptive title. It is appropriate to incorporate paragraph 7 of the said decision: “7. Again, when plaintiff had relied upon a particular document of title, namely, Ex.A-1 gift deed, in order to claim right and title to suit property, she cannot claim it by adverse possession, because when once she claims title upon a particular document, then whatever right plaintiff claims would be flowing if at all under that document, in which case there is no element of adverse nature of possession in order to make out a case of prescription by title. Thus, the substantial question of law is answered against the appellant/plaintiff and I find no reason to allow this second appeal.” 16. Considering the facts and circumstances of the case, I am of the view, Ex.A1 settlement deed dated 02.03.1955 is true and genuine, it is accepted and acted upon. So the plaintiff/respondent holding the vested interest, is entitled to recovery of possession. Thus, the substantial questions of law 1 and 2 are answered against the defendant/appellant. 17. For the foregoing reasons, both the Courts below have considered all the aspects in proper perspective and rightly came to the conclusion. So the plaintiff/respondent holding the vested interest, is entitled to recovery of possession. Thus, the substantial questions of law 1 and 2 are answered against the defendant/appellant. 17. For the foregoing reasons, both the Courts below have considered all the aspects in proper perspective and rightly came to the conclusion. Hence, the judgment and decree passed by both the Courts below does not suffer any illegality or irregularity and they does not warrant any interference and they are hereby confirmed. 18. In fine, Second Appeal is dismissed with costs. The decree and judgment passed by both the Courts below are hereby confirmed. Two months time is granted to the appellant/defendant to hand over the possession of the suit property to the respondent/plaintiff. Consequently, connected Miscellaneous Petition is closed.