JUDGMENT : N. Seshasayee, J. 1. The plaintiff who was non-suited, by both the trial Court as well as by the first appellate Court in the suit filed for declaration of title and for consequential decree of injunction seeking to restrain the defendants and their men from her peaceful possession of the suit property is the appellant herein. The plaintiff's case as disclosed in the pleadings may be outlined as below: The suit property in S.F. No. 225/11A of Iyyaanadaippu Village, Tuticorin Taluk, has an extent of 92 ares, equivalent to about 86.5 cents. This property originally belonged to Pulamadan Thevar. On 24-08-1920, he sold this property to one Ayyappa Kudumban. Ayyappa Kudumban had a son and a daughter. His son was Kumarandi and daughter was Solaiammal. Solaiammal married one Arumugam and she died issueless on 26.09.1985. On the demise of his father Ayyappa Kudumban, Kumarandi became the absolute owner of the suit property. He married one Ananthammal (not the plaintiff). They did not have any issues. While so, they adopted the plaintiff when she was barely three years old as per customary rites. On 14-12-1983, Kumarandi executed a registered Will in favour of the plaintiff and bequeathed the suit property in favour of his wife Anandammal and the plaintiff. After Kumarandi's demise, the legatees under the Will of Kumarandi obtained the entire properties and have been enjoying the same. While so, on 02-12-1989, the adoptive mother of the plaintiff (wife of Kumarandi) executed a registered Will, bequeathing her share in the suit properties in favour of the plaintiff. Thus, the plaintiff became entitled to the entire suit property. Necessary mutations were effected in the revenue records and she was issued a patta bearing No. 837 for the suit property. The defendants hail from Maramangalam Village in Srivaikundam Taluk. First Defendant and his brother Narayanan were the children of one Mookandi and Piratti, and to grab the suit property from the plaintiff, they created false and bogus documents stating that they are the heirs of Solaiammal. With the help of these records obtained by them in the year 1996, they made an application to the Tahsildar, Tuticorin, for transfer of patta in their name. Without any enquiry, the Tahsildar transferred the patta in their name. Challenging the same, the plaintiff had preferred an appeal to the Collector. With the help of these records obtained by them in the year 1996, they made an application to the Tahsildar, Tuticorin, for transfer of patta in their name. Without any enquiry, the Tahsildar transferred the patta in their name. Challenging the same, the plaintiff had preferred an appeal to the Collector. Now on the strength of the patta obtained by them, the defendants attempt to disturb plaintiff's possession. Hence the suit for declaration by the plaintiff. 2. Denying the allegations in the plaint and disputing the Will, and on the basis of which plaintiff seeks her right, the first defendant in his written statement has alleged: It is admitted that Ayyappan purchased the suit property on 24-08-1920 and that he had a son named Kumarandi and a daughter named Solaiammal. It is however disputed that Solaiammal died issueless. Solaiammal had obtained half right in the suit property as per succession. She had initially married one Arumugam, but as per customary practice, she divorced him and married a certain Mookandi in 1948. Mookandi was already married and had children and that his wife had died leaving the children to the care of Mookandi. Mookandi's wife was Solaimmal's relative. In order to care Mookandi's children born to his first wife, Solaiammal had divorced her husband Arumugham and married Mookandi. When Solaimmal married Mookandi in 1948, Kumarandi had orally relinquished his half right in the suit property in her favour, and ever since Solaiammal was in enjoyment of the suit properly as its absolute owner. She was also paying necessary taxes and rates payable for the property. During re-survey in 1959, Solaiammal was granted patta bearing No. 175 for the suit property which indicates the confirmation of her exclusive right over the suit property. On Solaiammal's demise, the property came to the hands of Mookandi's two sons namely the first defendant and Narayanan. Narayanan is dead and defendants 2 to 6 are his heirs. It was Narayanan and the first defendant who performed last rites for Solaiammal. In the Will dated 14-03-1983, purported to have been executed by Kumarandi, the suit property was not included and this meant that there is no connect between Kumarandi and the suit property. The plaintiff is not the adopted child of Kumarandi and Anandammal. Her alleged adoptive mother had died on 04-12-1989 and she was indisposed and was unconscious for some time prior to her death. The plaintiff is not the adopted child of Kumarandi and Anandammal. Her alleged adoptive mother had died on 04-12-1989 and she was indisposed and was unconscious for some time prior to her death. Therefore, the allegation in the plaint that Anandammal had executed a Will on 02-12-1989, just two days prior to her death is not true. Besides, she did not have any right to execute a Will. 3. Before the trial Court, the plaintiff besides examining herself, has examined P.W. 2 and P.W. 4, both attestors of Ext. A16 Will, to prove the same. She has also examined P.W. 5 to prove Ext. A-17 Will executed by Kumarandi's wife Anandammal. On the side of the defendant, the first defendant examined himself as D.W. 1. Besides, he had examined three other witnesses and produced Ext. B1 to 17, of which Ext. B-7 dated 23-7-1997 is a copy of the chitta and Ext. B16 is a copy of the patta. 4. On appreciating the evidence before it, the trial Court dismissed the suit for following reasons: Plaintiff is the adopted daughter of Kumarandi. Ext. A-16 Will read along with D.W. 3 proves it. Suit property is not one of the properties included in Ext. A-16 Will. Plaintiff's contention that it encompasses the suit property based on a residuary clause in it whereunder the testator intended to bequeath the suit property to the plaintiff is inconclusive. Ext. A-17, the Will, said to have been executed by Kumarandi's wife and the adoptive mother of the plaintiff is not genuine. The reasons for the same are: i. The evidence of P.W. 3 and P.W. 5, both of who are the attesting witnesses to Ext. A-17 Will have contradicted themselves on the point of executor's fitness and disposing mental state to execute the Will, and hence the genuineness of the said Will is suspect. ii. The other is the one disclosed by P.W. 5, when he deposed that Ext. A-17 Will was executed only for including those properties omitted by Kumarandi in Ext. A-16 Will. iii. There exists no need for executing the Will since plaintiff, as the adoptive daughter of its executant would be the natural successor to former's properties, On the point if the suit property belonged to Kumarandi or Solaiammal, Ext. A-17 Will was executed only for including those properties omitted by Kumarandi in Ext. A-16 Will. iii. There exists no need for executing the Will since plaintiff, as the adoptive daughter of its executant would be the natural successor to former's properties, On the point if the suit property belonged to Kumarandi or Solaiammal, Ext. A-2 patta which the plaintiff has produced is inconclusive inasmuch as it has shown the plaintiff only as a joint pattadar and not as sole pattadar. On the side of the defendant, they have produced Ext. B-2 patta, which has been issued exclusively in the name of Solaiammal. This is further supported by Ext. B-14 notice issued under Sec. 9(2) of the Survey and Boundaries Act, issued to Solaiammal. However, defendants 1 to 6 cannot be termed as successors to Solaiammal since in Ext. B-16 patta, they have been shown only as joint pattadar. As to plaintiff's contention regarding application of Sec. 15(2) of the Hindu Succession Act, there is no pleading. 5. This decree was taken in appeal in A.S. No. 54/99 and the first Appellate Court concurred with the conclusion of the trial Court for the reasons stated to be below. The learned Principal District Judge has held that any devolution of interest under Sec. 15(2) of the Hindu succession Act, is a mixed question of law and fact and hence it requires pleadings. 6. On admission, the following substantial questions of law are raised: a. Whether the findings of the Courts below are vitiated by it's failure to consider the evidence of P.Ws. 1 to 5 and the admission of D.W. 3 regarding possession, especially when the title under Ex. A-1 is not disputed? b. Whether the findings of the Courts below are vitiated after having found the title under Ex. A.1 is in favour of the appellant and the further findings that the appellant is the adopted daughter of Kumarandi and Ananthammal on the basis of Exs. A16 and A.17 and the admission of D.W. 3? c. Whether the Courts below are not right in not applying succession of the appellant by virtue of Section 15(2)(a) of Hindu Succession Act on the admitted and proved facts? 7. A16 and A.17 and the admission of D.W. 3? c. Whether the Courts below are not right in not applying succession of the appellant by virtue of Section 15(2)(a) of Hindu Succession Act on the admitted and proved facts? 7. It may be stated that during the pendency of this appeal, defendants 1 to 6 have sold the entire suit property to the 7th respondent, who pursuant to the said sale got himself impleaded in this appeal. The learned counsel for the respondents 1 to 6 (defendants 1 to 6) has filed a memo in this court to the effect that he has no instructions from his clients. However, the learned counsel for the 7th respondent submitted that since he has purchased the suit property from respondents 1 to 6, he has stepped into their shoes and accordingly he would support the decree based on the evidence that his predecessors-in-title have advanced. 8. The arguments of the learned counsel for the appellant were pointed: Both the Courts below have found that the plaintiff was the adopted daughter of Kumarandi and his wife Ananthammal. This is not in dispute. Therefore, when Kumarandi died, irrespective of the fact if Ext. A-16 Will included the suit property or not, or Ext. A-17 Will was genuine, plaintiff would be the natural heir of Kumarandi. The cause of action for the plaintiff thus stands established with these minimum facts. When the plaintiff has thus discharged the burden, it is now the defendants' turn to prove a better set of facts to upset the legal consequence of what the plaintiff has proved. Their case is that Solaimmal has married Arumugham, divorced him and married Mookandi in 1948 after his wife's demise, and that patta was issued in her name in 1959 for the entire suit property. But each one of them were belied by the following facts: (a) Exts. A-15 death certificate shows that Mookandi's wife Pirati died only in 1950 and hence Solaiammal could not have married Mookandi in 1948. The internal inconsistency in evidence runs counter to the proof that the alleged marriage of Solaiammal to Mookandi was not proved. But each one of them were belied by the following facts: (a) Exts. A-15 death certificate shows that Mookandi's wife Pirati died only in 1950 and hence Solaiammal could not have married Mookandi in 1948. The internal inconsistency in evidence runs counter to the proof that the alleged marriage of Solaiammal to Mookandi was not proved. At any rate, even if the entire sequence of facts up to the point of Solaiammal's death is taken as true, and with nothing more required to be proved, still plaintiff would be the heir of Solaiammal under Sec. 15(2) of the Hindu Succession Act. Here, the reasoning of the first appellate Court that it requires specific pleading as the same is a mixed question of law and fact, appears to miss the point. In aid of his argument, the learned counsel relied on the authorities in Rajeshwari Vs. Puran Indoria, 2006 1 L.W. 495 : 2005 (4) CTC 567; Hero Vinoth (Minor) Vs. Seshammal, 2007 2 L.W. 945 : 2006 (4) CTC 79; Mottaiyandi Chettiar (Died) and Others Vs. Saroja (Died) & Others, 2017 1 L.W. 158; C. Arulsamy and another Vs. State of Tamil Nadu, rep. by the District Collector, Pudukottai District and Others, 2003 3 L.W. 855 : 2003 (4) CTC 670 . 9. The response of the learned counsel for the 7th respondent was more in line with the reasoning of the Courts below. His emphasis has been (a) That no substantial questions of law is involved and hence the second appeal should not be entertained; (b) That inasmuch as the plaintiff has not been able to prove her case in the manner she has pleaded, she is barred from taking advantage of the pleadings of the defendant and build a case founded on Sec. 15(2) of the Hindu Succession Act. He relied on the authorities in M. Venkammal Vs. Rathina Udayar and another, 1999 I MLJ 606; Oriental Insurance Company Limited, Madras Vs. T. Pitchaimani & Ors., 1998 1 L.W. 490 : 1998 II MLJ 151; Ganshamdoss Narayandoss Vs. Gulab Bi Bai, (1927) 26 L.W. 697 : (1927) 53 MLJ 709 . 10.1 As this Court analysed the facts alongside the necessary evidence, there emerged an aspect that both sides have entertained considerable fallacies to which the Courts below have added their own. T. Pitchaimani & Ors., 1998 1 L.W. 490 : 1998 II MLJ 151; Ganshamdoss Narayandoss Vs. Gulab Bi Bai, (1927) 26 L.W. 697 : (1927) 53 MLJ 709 . 10.1 As this Court analysed the facts alongside the necessary evidence, there emerged an aspect that both sides have entertained considerable fallacies to which the Courts below have added their own. The parties appeared to have misaddressed the legal consequences of few facts that they have pleaded, and not just the one at the terminal point of the discussion involving Sec. 15(2) of the Hindu succession Act. They are: First, it is alleged by the defendants that on the death of Aiyappan, the father of both Kumarandi and Solaiammal, the suit property devolved equally on both. It is not pleaded of proved as to when Aiyyappan died. However, it is the case of the defendant that in 1948 when Solaiammal married Mookandi, her brother Kumarandi had orally relinquished his share to her. What is implied in it is that Aiyyppan had died before 1948. This is before the commencement of the Hindu Succession Act, 1956, and as per the texts of Hindu Law then in force, a son would exclude the daughter in inheritance and accordingly Solaiammal would not have obtained any right in the suit property. Defendants allege that Solaiammal divorced her husband Arumugham as per customary practice and married Mookandi in 1948. If the nature of arguments advanced before the first appellate Court is seen, the plaintiff has strained unduly to prove that Solaiammal could not have married Mookandi in 1948, since his first wife died only in 1950, and hence, even if there is any marriage it could only be invalid. The point which is missed here is that under the classical Hindu law which was in force prior to the Hindu Marriage Act, 1955, dissolution of marriages was unknown and was not recognised. Right to divorce as a civil right is statutorily granted only under the Hindu Marriage Act, 1955. Therefore, Solaiammal could not have divorced her husband Arumugham legally. If only the contrary should be established based on any customary law, there must be pleading to its existence since antiquity and proof in the manner known to law, both of which are absent in the present case. Therefore, Solaiammal could not have divorced her husband Arumugham legally. If only the contrary should be established based on any customary law, there must be pleading to its existence since antiquity and proof in the manner known to law, both of which are absent in the present case. Now, even if Mookandi had married Solaiammal, either in 1948 or in 1950 even when his first wife was alive, other things remaining a constant, Mookandi could validly take a second wife, since before the Hindu Marriage Act, polygamy was legally in vogue. 11. The fallacy that the Courts below have helped themselves, which easily surfaces on a cursory reading of their judgments, is about treating the application of Sec. 15(2) of the Hindu Succession Act to the facts before it as a mixed question of law and fact. 12.1 What is a mixed question of law and fact. Where a proof of fact in dispute as to its preponderating probable existence or non existence is necessary before a settled principle of law, or a provision of law could be applied, it can be termed as a mixed question of law and fact. In Sree Meenakshi Mills Ltd., Madurai Vs. Commissioner of Income Tax, Madras in AIR 1957 SC 49 the Supreme Court has explained: "10. In between the domains occupied respectively by questions of fact and of law, there is a large area in which both these questions run into each other, forming so to say, enclaves within each other. The questions that arise for determination in that area are known as mixed questions of law and fact. These questions involve first the ascertainment of facts on the evidence adduced and then a determination of the rights of the parties on an application of the appropriate principles of law to the facts ascertained. To take an example, the question is whether the defendant has acquired title to the suit property by adverse possession. It is found on the facts that the land is a vacant site that the defendant is the owner of the adjacent residential house and that he has been drying grains and cloth and throwing rubbish on the plot. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive. Is it as of right or permissive in character. The further question that has to be determined is whether the above facts are sufficient to constitute adverse possession in law. Is the user continuous or fugitive. Is it as of right or permissive in character. Thus, for deciding whether the defendant has acquired title by adverse possession, the Court has firstly to find on an appreciation of the evidence what the facts are. So far, it is a question of fact. It has then to apply the principles of law regarding acquisition of title by adverse possession, and decide whether on the facts established by the evidence, the requirements of law are satisfied. That is a question of law. The ultimate finding on the issue must, therefore, be an inference to be drawn from the facts found, on the application of the proper principles of law, and it will be correct to say in such cases that an inference from facts is a question of law. In this respect, mixed questions of law and fact differ from pure questions of fact in which the final determination equally with the finding or ascertainment of basic facts does not involve the application of any principle of law...." Therefore, the proposition that a certain fact is a mixed question of law and fact only on the consideration that it is generally considered so, can derail the course of understanding the concept. It does not have an automated and universal application that Court can ignore the facts and circumstances that prevail in a particular case before it. To state it differently, where law can be applied to a set of facts that the parties have pleaded without any need for proving it, then what is generally considered as a mixed question of law and fact would become a question of law merely. In the case of plaintiff, such situations form the core of Order XIV Rule 2(2) CPC. 12.2 Turning to the case at hand, for the plaintiff to succeed on her pleading, she must prove that the suit property originally belonged to her father Kumarandi and thereafter to prove that she has obtained title to the properties through the two Wills that she sets up. Now, what if she has merely proved that she is the adoptive daughter of Kumarandi but failed to prove the genuineness of the two Wills. Now, what if she has merely proved that she is the adoptive daughter of Kumarandi but failed to prove the genuineness of the two Wills. De hors the defense that the defendants have offered, can the Court deny her the right to succeed on the strength of the fact that she is the adoptive daughter. In situations such as these, Court grants relief not entirely on the basis of facts pleaded but on the basis of facts proved. Now, even if a set of facts are contested, still Courts declare rights of parties based on the facts proved. In Madhavan Vs. Kannammal, 1990 2 LW 274 (276), it is declared: "..It is not open to the plaintiff to abandon his own case and claim relief on the basis of the defendant's case....That principle can be invoked only in cases where the plaintiff having failed to prove the case with which he approached the Court seeks to rely on the pleadings of the defendant to secure a relief and not to cases like the present one where the plaintiff prays for relief on the basis of facts established by the record in the case even though they are at variance with his pleadings." (emphasis supplied) It requires no reminder that under the scheme of Civil Procedure Court, parties are required to plead only facts (Order VI Rule 2) and it is the duty of the Court to apply law. 12.3 In this case what is now required to be considered is whether the suit property belonged to Kumarandi or Solaiammal. Here there are two versions and have been stated a few times above. If the property is proved to be Kumarandi's, then plaintiff has no difficulty in reaching ashore. But here the defendants plead that the suit property belonged to Solaiammal, that they, as heirs or descendants of Mookandi through his first wife succeed to the property of Solaiammal on latter's death and that they exclude the adoptive daughter of her brother Kumarandi in the process. 12.4 Can these be considered as valid and legally tenable defence. For instance, in a suit for declaration of title, if the defendant sets up a defence that he was in open, hostile and uninterrupted possession for a few years short of twelve years statutorily required, and still pleads adverse possession, should the Court countenance it as a tenable defence. 12.4 Can these be considered as valid and legally tenable defence. For instance, in a suit for declaration of title, if the defendant sets up a defence that he was in open, hostile and uninterrupted possession for a few years short of twelve years statutorily required, and still pleads adverse possession, should the Court countenance it as a tenable defence. The facts that parties, and in the context of the present case the defendants, plead, bind them as an admission, from which they cannot resile. Courts would then have to apply law to the said set of facts pleaded and must test if they pass a legal scrutiny. Unless the pleading in defense of the cause of action pass this litmus test, the case of the defendants may not be considered tenable. One way of checking it is, if the defendants had approached the court as plaintiff whether the facts that they have pleaded disclose a cause of action sustainable in law. If so considered, given the pleadings of the defendants, they cannot succeed since under Sec. 15(2) of the Hindu Succession Act, they would not be the heirs of Solaiammal. 12.5 What difference does it make merely because defendants have pleaded these facts in the written statement since ultimately for them to lawfully offer a resistance to plaintiff's title, these facts should pass a legal scrutiny for their tenability, and cross the hurdle in Sec. 15(2) of the Hindu succession Act. 12.6 If however, an argument under Sec. 15(2) of the Hindu Succession Act should be treated as a mixed question of law and fact, then pleadings in this case should have given raise to an issue if defendants are either son, or heirs of predeceased son, as the case may be, of Mookandi and Solaiammal, in which case a finding on fact is necessary for considering if Sec. 15(2) of the Act applies. That however, was not the case here since the defendants concede that their birth was not traceable to Solaiammal. Hence, her property must revert only to the family of her birth under Sec. 15(2) of the Hindu Succession Act. In other words, if Kumarandi is taken as the absolute title holder to the suit property as per texts of classical Hindu law as referred to in paragraph 11 above, then the plaintiff, being his adoptive daughter would succeed to the estate of Kumarandi. In other words, if Kumarandi is taken as the absolute title holder to the suit property as per texts of classical Hindu law as referred to in paragraph 11 above, then the plaintiff, being his adoptive daughter would succeed to the estate of Kumarandi. If however, Solaiammal was considered to have obtained any right over the property, even then by the operation of Sec. 15(2), plaintiff would succeed to the suit property. 13. Much has been discussed about who is in possession and in whose name it was issued. This has little consequence since patta is not a document of title. Secondly, as to possession, in case of vacant land, there is a presumption that possession follows title and if the plaintiff has that title to the property, then this presumption enures to the advantage of the plaintiff. Thirdly, on the defendants' plea of adverse possession, in order the defendants can put forth a plea founded on it, they have to vest title in the plaintiff and plead. However, the defendants have contested on title and their right to succeed to the title of their step mother Solaiammal. They, at any rate, cannot sustain their alternate and mutually inconsistent pleas simultaneously. 14. On the contention that this court might not interfere with the concurrent findings of the Courts below, it must be stated that the findings of the Courts below, the first appellate court in particular, were premised on what they considered as a mixed question of law and fact, and literally refused to enter ah enquiry into the plaintiff's title based on Sec. 15(2) of the Hindu succession Act. What constitutes a mixed question of law and fact is not a finding on fact, but of law. Here the courts below have slided on the side of error. Under Sec. 103 CPC, this Court is empowered to enter such findings that the evidence support which the Courts below have failed to consider or have wrongly determined by reason of a finding on question of law. 15. The 7th respondent is the pendente lite transferee of defendants 1 to 6 and under Sec. 52 of the Transfer of Property Act, he is entitled to obtain what his vendors deserves to get. 15. The 7th respondent is the pendente lite transferee of defendants 1 to 6 and under Sec. 52 of the Transfer of Property Act, he is entitled to obtain what his vendors deserves to get. In the ultimate analysis, his vendors are found not to have title to the suit property, and consequently under the title deed that defendants 1 to 6 have executed, he has not derived any title to the suit property. He gambled on a property involved in a litigation knowing adequately well that his vendors' title is not settled, and probability of his success in the ongoing litigation which is necessary to secure his title, is only one-half. He lost as his efforts fell on the other half. To conclude this second appeal is allowed and the judgment and decree of the learned Principal District Judge, Tuticorin passed in A.S. No. 54/1999 dated 31.10.2000 is set aside and the suit in O.S. No. 273/1997 on the file of the learned Principal District Munsiff, Tuticorin is decreed. No costs.