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2020 DIGILAW 350 (MAD)

William Devapriyam v. Tamilarasi

2020-02-17

N.SATHISH KUMAR

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JUDGMENT : N. SATHISH KUMAR, J. 1. Aggrieved over the reversal finding of the First Appellate Court, dismissing the Suit filed, for Declaration and Recovery of possession, the present Second Appeal is filed by the pendente lite purchaser of the property from the Plaintiff. 2. The parties are referred to as per their rank before the Trial Court. 3. The brief fact, leading to file this Appeal, reads as follows: The Suit property originally purchased by the Plaintiff on 9.8.1956 in the name of his mother one Victoria David Ammal. It is the contention of the Plaintiff that the entire Sale consideration has been paid by him. He was working in Army, thereafter, in the Dindigul Municipality. Only out of his earnings, the property has been purchased in his mother's name. After purchase of the property, the Plaintiff has put up a construction and put up one hut and permitted the Defendant to reside in the above portion. It is relevant to note that the Defendant is none other than the daughter of the Plaintiff. When the matter stood thus, the mother of the Plaintiff died on 15.11.1970. After the death, the Plaintiff enjoyed the property and mutated the records in his name and has also independently dealt the property in favour of Third parties by mortgaging as well as rent. Though the brothers and sisters of the Plaintiffs were there, they all left the family and are residing separately. The Plaintiff has sold some portion of the property to Third parties in the year 1988 and the Plaintiff is in enjoyment and possession of the remaining property and ousted other Co-Sharers, hence, filed the Suit for Declaration and Recovery of possession against his own daughter. 4. The Defendant has filed Written Statement, stating that the said Victoria David Ammal is the absolute Owner of the property. She had executed the Will, dated 11.3.1964. It is her contention that the said Victoria David Ammal bequeathed the property in the Will to 12 Legal Heirs and subsequently, died in the year 1970. It is her contention that after the death of the said Victoria David Ammal, she has also filed Suit in O.S. No. 203 of 1989. The above Suit has been dismissed on the ground that the Will has not been proved and against which, an Appeal is also filed in A.S. No. 208 of 2005, which is pending. It is her contention that after the death of the said Victoria David Ammal, she has also filed Suit in O.S. No. 203 of 1989. The above Suit has been dismissed on the ground that the Will has not been proved and against which, an Appeal is also filed in A.S. No. 208 of 2005, which is pending. Hence, it is the contention of the Defendant that the Suit is not maintainable. 5. Based on the above pleadings, the Trial Court has framed six issues. On the side of the Plaintiff, PW-1 and PW-2 were examined and Exs.A1 to A19 were marked. On the side of the Defendant, DW-1 to DW-3 were examined and Exs.B1 to B11 were marked. On the side of the Witnesses, Exs.X1 to X7 were marked. After perusal of the oral and documentary evidence, the Trial Court has decreed the Suit on the ground that the Plaintiff was in continuous possession and ousted other Co-Sharers. The First Appellate Court, having found that the Will propounded by the Defendant has not been proved in the manner known to law, has held that the property is not the property of the Plaintiff and it is individual property of his mother Victoria David Ammal and held that other Co-Sharers have also not been made as party and allowed the Appeal. Against which, the present Second Appeal is filed. 6. While admitting the Second Appeal, the following Substantial Questions of Law have been framed: (a) Whether the Lower Appellate Court having held that the will alleged to have been executed by Victoria David, the mother of the Plaintiff is not proved, whether it is correct in stating that the Defendant, the daughter of the Plaintiff will be a Co-Sharer along with the Plaintiff? (b) When the parties are admittedly, christians by birth whether the Lower Appellate Court is correct in stating that the parties are the members of a Joint Family? (c) Even if the Plaintiff be a Co-Sharer or Co-Owner, whether he will not be entitled to seek the recovery of possession of the Suit property from the Defendant who has no right to the Suit property and therefore, she will only be a trespasser? 7. The learned Counsel appearing for the Appellants submitted that the First Appellate Court having held that the Will has not been established, ought not to have dismissed the Suit. 7. The learned Counsel appearing for the Appellants submitted that the First Appellate Court having held that the Will has not been established, ought not to have dismissed the Suit. The other Co-Sharers have not made any claim in respect of the Suit property. The documents filed on the side of the Plaintiff clearly show that the Plaintiff was all along enjoying the Suit property. He ousted other Co-Sharers and the Defendant was only in permissive occupation. Therefore, the Plaintiff is certainly entitled to seek Declaration and Recovery of possession. Hence, it is the contention that the earlier Partition Suit filed by the Defendant is also dismissed, hence, prayed for allowing the Appeal. It is the further contention that the Second Appellant is the bona fide purchaser. Since the original Plaintiff died, he is prosecuting the Appeal. 8. The learned Counsel appearing for the Respondent submitted that the plea of the Plaintiff in respect of Benami transaction has been negatived by the First Appellate Court by proper appreciation of evidence. Admittedly, the mother of the Plaintiff-Victoria David Ammal had six children. Neither of them nor their children were not made as parties to the Suit. Merely because the original Will has not been produced, the Will has not been accepted. The Plaintiff cannot succeed for relief of Declaration. Admittedly, other Co-Sharers have also shares in the property. Hence, he submitted that the First Appellate Court thoroughly analyzed the entire evidence and dismissed the Suit. It is the further contention that the Plaintiff having pleaded Benami transaction has not entered Witness Box, whereas his wife was examined as PW1. She has categorically admitted that the said Victoria David Ammal, mother of the Plaintiff had a sufficient means to purchase the property, she had dealt some other properties and she was also a Teacher by profession. Hence, it is his contention that the First Appellate Court has rightly appreciated the evidence and dismissed the Suit. Since the parties are governed by the Indian Succession Act, all the Legal Heirs are also entitled to share in the property. Hence, mere possession of one of the Co-Sharers will not amount to ouster of the Co-Sharers and Declaration cannot be granted, in the absence of other Co-Sharers, hence, prayed for dismissal of the Appeal. 9. Since the parties are governed by the Indian Succession Act, all the Legal Heirs are also entitled to share in the property. Hence, mere possession of one of the Co-Sharers will not amount to ouster of the Co-Sharers and Declaration cannot be granted, in the absence of other Co-Sharers, hence, prayed for dismissal of the Appeal. 9. Heard the learned Counsel appearing for the Appellants, the learned Counsel appearing for the Respondent and perused the materials available on record carefully. 10. The Suit has been filed by the father against own daughter, seeking Declaration and also Recovery of possession. It is the admitted case of the Plaintiff that the daughter is in possession of the Suit property from the year 1985. The Suit proceeded as if the property though purchased in the name of the mother of the Plaintiff, entire Sale consideration was met by the Plaintiff. In the nutshell, it is the contention of the Plaintiff that it is only Benami nature of the transaction. It is to be noted that the Suit has been filed in the year 2006. Any such plea of Benami is totally prohibited under Statute. Section 4 of the Benami Transactions (Prohibition) Act 1988 (hereinafter referred to as ‘the Act’) prohibits any such plea raising benami. Section 3 of the Act provides that the property could be purchased in the name of the wife or unmarried daughter for the benefit, except that no one can set up any plea of Benami. Such plea has been prohibited under Statute, particularly, after advent of the Act 45 of 1988. 11. Be that as it may, the Plaintiff having pleaded such plea, has never come to the box, whereas his wife has been examined. In her evidence, she has categorically admitted the capacity of the mother of the Plaintiff to purchase the property. Her evidence also clearly appreciated by the First Appellate Court and the First Appellate Court has categorically recorded the admission of PW-1, wherein she has categorically admitted that the mother of the Plaintiff was a Teacher by profession, she was the earning member and she has capacity to purchase the property. The Suit property has been purchased only for the value of Rs. 200. That apart prior to the purchase of the property, she has also sold some other individual properties of her own. The Suit property has been purchased only for the value of Rs. 200. That apart prior to the purchase of the property, she has also sold some other individual properties of her own. Such being the position, the plea of Benami is rightly negatived by the First Appellate Court. Therefore, such finding cannot be interfered with in the Second Appeal. 12. Be that as it may, the defendant has propounded the Will, which was executed by the original Owner Victoria David Ammal, bequeathing the property to all her 12 Legal Heirs, including grant children. The Will was non-suited mainly on the ground that the original has not been produced and the Will has not been proved in the manner known to law. It is also to be noted that the Will is a registered Will and Certified copies were filed as Ex.B2. The Defendant has also given a proper explanation and proved before the Courts below that originally the Will was handed over from the custody of the Bank to the Plaintiff. Despite the above facts proved, the Defendant has not proved the Will in any other manner in law, either resorting under Sections 69 to 71 of the Indian Evidence Act. Only on the ground that the Will has not been proved in the manner known to law. Therefore, merely because such Will has been negatived, it cannot be advantage for the Plaintiff to seek a Declaration for the entire property. Having found that the property originally dealt with by the mother of the Plaintiff, the pleadings of the Plaintiff itself clearly indicate that the mother died, leaving behind several Legal Heirs, including the daughters and grant children. Such being the position, without making other Co-Sharers, who have shares in the property as per the Indian Succession Act, since the parties governed by Christians certainly, they can be made as parties before seeking any declaration, which has not been done so. Therefore, merely because one of the Co-Sharers even assuming to be exclusive possession, it does not mean that he has ousted other Co-Sharers. The plea of ouster is required strict proof of evidence. According to the Plaintiff, he is in continuous possession of the property. That itself will not prove the factum of ouster. Intention to assert ownership as hostile to the interest of others has to be established, which has not been done so. The plea of ouster is required strict proof of evidence. According to the Plaintiff, he is in continuous possession of the property. That itself will not prove the factum of ouster. Intention to assert ownership as hostile to the interest of others has to be established, which has not been done so. Admittedly, other Co-Sharers have also not been made as party. Even assuming that being one of the sons of the original Owner, the Plaintiff was in possession of the property, such possession will not become adverse to other Co-Sharers in law. Possession of one of Co-Sharers is deemed to be possession of others. 13. Such view of the matter, this Court is of the view that merely the Will propounded by the Defendant, grant child of Testatrix, has not been established in the manner known to law, the same will not lend to hold that the Plaintiff is entitled to Declaration relief in respect of the entire property owned by his mother. Admittedly, other Legal Heirs are very much alive. Further, it is also to be noted that the Defendant has filed earlier Suit for Partition, claiming rights on the basis of Ex.B2 - Will, which was dismissed by the both Courts below on the ground that the Will has not been proved. It is admitted by both sides that as against the above finding, the Second Appeal is pending in S.A. (MD) S.R. No. 12030 of 2011, before this Court. 14. Such view of the matter, any finding in that Judgment will not be a binding precedent. At most, it is only in respect of the proof of Will alone, not in respect of the rights of the parties to the property. It is also the admitted case of the Plaintiff that his daughter is in possession of the property from the year 1985, according to him, she is in permissive possession. It is to be noted that at the moment when the original Owner died in the year 1970, the property has to be dealt with under Sections 37 to 40 of the Indian Succession Act. The pleadings itself clearly indicate that one of the daughters died before death of the mother, leaving behind one son and daughter. It is to be noted that at the moment when the original Owner died in the year 1970, the property has to be dealt with under Sections 37 to 40 of the Indian Succession Act. The pleadings itself clearly indicate that one of the daughters died before death of the mother, leaving behind one son and daughter. Such view of the matter, they have also become entitled to share and even other Legal Heirs of the deceased Victoria David Ammal is very much alive and other Co-Sharers namely, son and daughter or children of predeceased are certainly entitled to share as per Indian Succession Act. Such view of the matter, the Suit seeking declaration sought by the Plaintiff for entire property without making other Co-Sharers is not maintainable in law. 15. It is also to be noted that the Second Appellant is pendente lite purchaser, he has purchased the property on 16.6.2010 during the pendency of the Appeal. Therefore, his rights are also subject to the result of the Suit. Such view of the matter, this Court do not find any infirmity or illegality in the Judgment of the First Appellate Court. Accordingly, all the Substantial Questions of Law are answered against the Appellants. 16. In the result, this Second Appeal stands dismissed. No Costs.