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2025 DIGILAW 187 (MAD)

G. Ravichandran v. T. N. Narayanan

2025-01-07

R.N.MANJULA

body2025
JUDGMENT : (R.N. MANJULA, J.) The appellant is the plaintiff and the respondents are the defendants 2 and 3. The plaintiff has filed a suit against the defendants for seeking the relief of recovery of possession and to pay the past and future damages for the unlawful use and occupation of the schedule mentioned property. The trial Court had dismissed the suit and the appeal preferred by the plaintiff in A.S.No.9/2001 has been allowed by setting aside the decree and judgment of the trial Court and the suit has been remitted back to the trial Court for fresh disposal. The defendants 2 and 3 have filed a Civil Miscellaneous Appeal in C.M.A.No.2819/2006 before the High Court by challenging the judgment of the first appellate Court in remitting the matter back to the trial Court. In the said Civil Miscellaneous Appeal the lower appellate Court was directed to receive the findings from the trial Court on the additional issues and then dispose the first appeal. In view of the same the judgment and decree passed by the first appellate court got set aside. Thereafter, the first appellate Court has passed a judgment on 08.06.2010 by dismissing the first appeal. Aggrieved over that the plaintiff has filed the present second appeal. 2. The facts pleaded in the plaint by the plaintiff in short : The suit property is a joint family property of one Devaraja Chetty and his four sons. The suit property was purchased by Devaraja Chetty on 27.07.1929 from the income of the joint family properties and hence the suit property has been treated as joint family property of Devaraja Chetty. After the demise of Devaraja Chetty, his wife was enjoying the property till her life. Devaraja Chetty executed a Will dated 12.08.1940 in respect of the suit property. As per the judgment of the High Court held in A.S.No.465/1969 dated 10.10.1974, it has been declared that the Will executed by Devaraja Chetty is not valid. It is further held that the suit property is a joint family property in which the four sons of Devaraja Chetty have also got share and the wife of Devaraja Chetty has got right to enjoy the suit property till her lifetime and the four sons can divide after her demise. The wife of Devaraja Chetty, Kamalammal died on 27.05.1985. It is further held that the suit property is a joint family property in which the four sons of Devaraja Chetty have also got share and the wife of Devaraja Chetty has got right to enjoy the suit property till her lifetime and the four sons can divide after her demise. The wife of Devaraja Chetty, Kamalammal died on 27.05.1985. 2.1 The plaintiff has purchased the suit property on 24.10.1985 from the four sons born to Devaraja Chetty and Kamalammal. At the instigation of the first defendant's husband Palani Chetty, Kamalammal executed a sale deed in favour of Palani Chetty on 25.07.1967 in respect of the suit properties. The sons of the Kamalammal are not parties to the said sale deed. The plaintiff came to know about the sale deed only on 08.01.1986 when he had taken the encumbrance certificate. The sale deed executed by Kamalammal in favour of Palani Chetty is not supported by any consideration and in this regard a suit in O.S.No.109/1963 was then pending. Palani Chetty died in the year 1968 without issues. The first defendant who is the wife of Palani Chetty had executed a settlement deed on 22.07.1975 in favour of defendants 2 and 3. The first defendant also died in the year 1990. Her husband's brother Thiruvengadam Chetty had filed a impleading petition and he has been impleaded as a party to the proceedings. 2.2 Kamalammal did not have any absolute right over the suit property. The sale executed by Kamalammal dated 25.07.1967 and the settlement deed dated 22.07.1975 are not legally valid documents. The High Court has held that the Will dated 12.08.1940 executed by Devaraja Chetty is true and valid and hence the sale deed dated 25.07.1967 and the settlement deed dated 22.07.1975 will not bind the plaintiffs or their predecessor in interest. Since the plaintiff is a lawful owner of the suit property, he is entitled to the relief of recovery of possession from the defendants. The plaintiff had sent a legal notice to the defendants on 08.03.1986 and for which the defendant sent a reply notice on 22.03.1986 and 27.03.1986 with false allegations. As the defendants enjoyed the suit property illegally, the plaintiff is entitled to claim damages for the illegal occupation by the defendants. Hence, the suit has been filed for recovery of possession for damages and for other reliefs. 3. As the defendants enjoyed the suit property illegally, the plaintiff is entitled to claim damages for the illegal occupation by the defendants. Hence, the suit has been filed for recovery of possession for damages and for other reliefs. 3. The facts pleaded in the written statement by the defendants in short: The suit item is not the joint family property of Devaraja Chetty. Since Devaraja Chetty purchased the property by himself he has every right to execute the Will. The deceased Kamalammal was not a party to the proceedings of the High Court where the Will is held to be valid and binding. In any event she had perfected title by adverse possession to the knowledge of Devaraja Chetty. The vendors of the plaintiff do not derive any right over the suit property as they have obtained the sale deed dated 24.10.1985 from a person who did not have any saleable interest. The father of the plaintiff had filed the suit in O.S.No.109/1963 on the file of the Sub- Court, Chengalpattu and in which the deceased Kamalammal was one of the defendants and she remained ex parte. She was examined as plaintiff witness during the trial of the suit and an Interlocutory Application in I.A.No.952/1976 has been filed to implead the deceased Kamalammal and the present defendants and the same was dismissed. 3.1 The suit itself is barred by limitation because it has been filed to challenge the alienations which have been done before 21 years. The deceased Kamalammal sold the suit property in favour of Palani Chetty under a registered sale deed dated 25.07.1967. The said Palani Chetty had executed a settlement deed on 27.07.1975 in favour of defendants 2 and 3 and put them in possession. The Will dated 12.08.1940 empowers Kamalammal to deal the suit property by alienation. Hence the settlement deed executed by the first defendant in favour of defendants 2 and 3 are valid. 4. On the basis of the above pleadings the trial Court has framed the following issues: 5. At the conclusion of the trial and considering the materials available on record the trial Court has dismissed the suit. The first appeal preferred by the plaintiff also got dismissed by confirming the judgment of the trial Court. Aggrieved over which the present Second Appeal has been preferred. The Second Appeal has been admitted on the following substantial questions of law: “ 1. The first appeal preferred by the plaintiff also got dismissed by confirming the judgment of the trial Court. Aggrieved over which the present Second Appeal has been preferred. The Second Appeal has been admitted on the following substantial questions of law: “ 1. Whether the Courts below have misapplied the provisions of law of limitation in a case under which the suit was filed on 03.05.1988 when the cause of action for the suit arose on 27.05.1985? 2. Whether the Courts below have misapplied the Principles of adverse possession to a case where the vendor of the sale deed under which the defendants 2 and 3 claimed title had life interest as found by the Hon'ble High Court, Madras in the earlier proceedings ? ” 6. Mr.M.S.Subramanian, the learned counsel for the appellant/plaintiff, submitted that originally the trial Court has held that the sale deed dated 24.10.1985 (Ex.A7) did not bind the defendants; the first appellate Court has framed additional issues and remanded the matter back to the trial Court to render its findings on the additional issues and subsequently P.W.3 and P.W.4, the executants of Ex.A7, have been examined and the validity of Ex.A7 – sale deed was proved; the plaintiff's right to get the possession would originate after the death of Kamalammal; the plaintiff had never been in possession of the suit property and he was not dispossessed also and hence the right to take possession would arise only subsequent to the death of Kamalmmal; the sale deed executed by Kamalammal cannot convey any valid title over the suit property; at the best Kamalammal can only transfer her possessory right as she had got only limited right over the suit property; Kamalammal died on 27.05.1985 and the suit has been filed on 03.05.1988 which is three years after the death of Kamalammal and hence the suit is not barred by limitation; since the plaintiff's right to sue is only after the death of Kamalammal, the limitation has to be computed only from the date of her death and not any time earlier. 7. 7. Mr.V.Nicholas, the learned counsel for the respondents / defendants 2 and 3, submitted that the point of limitation by contending that the sale deed in favour of Palani Chetty is dated 25.07.1967 and the suit has been filed only on 03.05.1988 and hence it is barred by limitation and the same is also accepted by the lower appellate Court; one of the sons of Devaraja Chetty namely Gopal Chetty has filed a suit in O.S.No.109/1963 before the Sub-Court, Chengalpattu for partition and the same has been dismissed; in the said suit a party impleading petition in I.A.No.952/1976 has been filed to implead the defendants 1 and 3 as parties and the said petition was dismissed; during the said time itself the plaintiff's father has got the knowledge about the sale deed executed by Kamalammal in favour of Palani Chetty and also the subsequent settlement deed executed by the wife of Palani Chetty, Pattam, in favour of defendants 2 and 3; since no relief of recovery of possession has been sought by Gopal Chetty, the suit itself is barred by limitation. 8. The fact that the suit property was originally owned by Devaraja Chetty was not denied. Devaraja Chetty predeceased his wife Kamalammal. Kamalammal and Devaraja Chetty had four sons namely Kandasamy Chetty, Kuppusamy Chetty, Gopal Chetty and Nadesan Chetty. There was a dispute with regard to the Will alleged to have been executed by Devaraj Chetty on 12.08.1940. However in the judgment of this Court held in Appeal No.465/1969 dated 11.10.1974, the Will said to be invalid. Since the Will has been held to be invalid and the above judgment has attained finality, the suit property in the name of Devaraja Chetty would remain either intestate or his joint family properties. 9. Kamalammal who is the wife of Devaraja Chetty at no point of time has been given with the absolute right over the suit property. In fact Gopal Chetty has filed a suit for partition in O.S.No.109/1963 before the Sub- Court, Chengalpattu in respect of ¼ share in the suit property and other property and got a decree in respect of his ¼ share. In fact Gopal Chetty has filed a suit for partition in O.S.No.109/1963 before the Sub- Court, Chengalpattu in respect of ¼ share in the suit property and other property and got a decree in respect of his ¼ share. However, the Court has observed that the sons of Devaraja Chetty who are the sharers of the suit property can have their absolute right over the suit property only after the death of their mother Kamalammal and that Kamalammal will have life interest and continue to be in possession of the suit property till her lifetime. Unfortunately, Kamalammal remained ex parte though she was a party to the suit proceedings. Despite the Hindu Succession Act, 1956 has come into force at the time when the partition suit was filed, Kamalammal could have even contested to get equal share in the suit property along with their sons. But she did not choose to participate in the suit proceedings and remained ex parte. Even her son Gopal Chetty and others did not challenge the judgment and decree passed by the first appellate court. 10. Whatever may be the case, by virtue of the decree of the Court Kamalammal had been given with possessory right over the suit property till her lifetime. Despite the suit has been filed in the year 1963, it has attained finality on 14.11.1977 and the judgment and decree has been passed by the Sub-Court, Chengalpattu in O.S.No.109 of 1963 which is marked as Ex.A9. So the above decree will bind the parties to the litigation including Kamalammal. Despite Kamalammal's right in respect of the suit property has been declared only as a possessory right, Kamalammal had executed a sale deed (Ex.A10) in favour of Palani Chetty on 25.07.1967 when the partition suit was pending. Subsequent to the lifetime of Palani Chetty his wife Patammal had executed a settlement deed in favour of defendants 2 and 3 on 22.07.1975 by virtue of the settlement deed marked as Ex.A13. So the settlement deed has also been executed during the pendency of the suit in O.S.No.109/1963. 11. As stated already the judgment and decree passed by the Sub-Court, Chengalpattu in O.S.No.109/1963 has not been challenged by Kamalammal. Interestingly, the plaintiff in O.S.No.109/1963 namely Gopal Chetty has filed in I.A.No.952/1976 to implead Patammal and the third defendant herein as parties to the proceedings and subsequently he has not pressed the application. 11. As stated already the judgment and decree passed by the Sub-Court, Chengalpattu in O.S.No.109/1963 has not been challenged by Kamalammal. Interestingly, the plaintiff in O.S.No.109/1963 namely Gopal Chetty has filed in I.A.No.952/1976 to implead Patammal and the third defendant herein as parties to the proceedings and subsequently he has not pressed the application. However, the respondents have made their appearance through an Advocate and they did not challenge the dismissal of the application. The respondents have not filed an application to implead them as parties to the proceedings because on 22.07.1977 when I.A.No.952/1976 was dismissed, the sale deed dated 25.07.1967 and the settlement deed dated 22.07.1975 were very much in existence. Even then the parties to those documents (Exs.A10 and A13) did not file any application to implead themselves as parties to the above partition suit filed by Gopal Chetty. So far as the title in respect of the suit property is concerned, it is settled through the judgment and decree passed in the partition suit that the sons of Gopal Chetty have got ¼ share each. 12. Now the learned counsel for the respondent had taken up the argument stating that Gopal Chetty has not filed any suit for recovery of possession or to declare the sale deed dated 25.07.1967 and the settlement deed dated 22.07.1975 as null void and hence the suit is barred by limitation. It is the further contention of the learned counsel for the respondent that the the conduct of Gopal Chetty in filing party impleading petition during the pendency of partition suit in O.S.No.109/1963 would itself show that he had the knowledge about these two documents (Exs.A10 and A13). What is applicable to Gopal Chetty is equally applicable to the parties to the sale deed and the settlement deed and they also did not come forward to file any fresh suit by stating that the decree passed in partition suit in O.S.No.109/1963 is null and void against them or to declare the title in view of the decree and judgment passed in the partition suit ultimately. 13. Whatever may be the case, the right vested with Kamalammal by virtue of judgment and decree of the Sub Court, Chengalpattu is only a right to possession and enjoyment in respect of the suit property. Whatever Kamalammal could have conveyed to her purchasers can be only the right which she had over the suit property. 13. Whatever may be the case, the right vested with Kamalammal by virtue of judgment and decree of the Sub Court, Chengalpattu is only a right to possession and enjoyment in respect of the suit property. Whatever Kamalammal could have conveyed to her purchasers can be only the right which she had over the suit property. Admittedly, Kamalammal did not have any absolute right over the suit property so as to pass title in favour of her purchaser namely Palani Chetty vide Ex.A10. So the limited right which could have been passed by Kamalammal through the sale deed dated 25.07.1967 and Patammal who is the wife of purchaser through the sale deed dated 25.07.1967 by settlement deed dated 22.07.1975, could be at the best the right of possession over the suit property and nothing else. 14. As the lower Court has categorically held in its judgment in O.S.No.109/1963 that Gopal Chetty can have absolute title over the suit property only subsequent to the death of Kamalammal, it is impractical to expect Gopal Chetty to file a suit for recovery of possession presuming an absolute right during the lifetime of Kamalammal. It is reiterated that the above sale deed and the settlement deed Exs.A10 and A13 have been executed while the partition suit was pending and to which Kamalammal was very much a party. Kamalammal died on 27.05.1985. Gopal Chetty and others have executed the sale deed in favour of plaintiff on 24.10.1985 in respect of the suit property. Even though Gopal Chetty has got absolute right over the suit property in view of the judgment and decree held in O.S.No.109/1963, the possessory right has been in hands of the purchasers of Kamalammal. So the executants of the sale deed dated 27.05.1985 though passed title in favour of the plaintiff, the plaintiff is at the risk of recovering possession of the suit property from the defendants. Even if it is presumed that there is no sale deed in favour of the plaintiff and the right to recover the possession lies only with the original owner Gopal Chetty though Gopal Chetty and his brothers could have filed a suit for recovery of possession only subsequent to the death of their mother Kamalammal on 27.05.1985. So the limitation to file a suit for recovery can be computed only on and from 27.05.1985 and not any time prior to the said date. 15. So the limitation to file a suit for recovery can be computed only on and from 27.05.1985 and not any time prior to the said date. 15. As the suit property has been sold in favour of the plaintiff, the plaintiff stands in the shoes of Gopal Chetty and his brothers and he can also derive the right to file the suit to recover the possession in respect of the suit property from 27.05.1985. It is learned that Gopal Chetty has filed the suit on 03.05.1988 which is well within three years. As the plaintiff has filed the suit within three years from the right to sue accrues in accordance with Article 113 of Limitation Act, the first appellate court ought to have held that the suit filed by the plaintiff is not barred by limitation and it is maintainable under Article 113 of the Limitation Act. But the lower appellate Court has mislead itself as though Gopal Chetty has been given with absolute right in respect of the suit property and he can exercise his possessory right also during the lifetime of his mother Kamalammal and arrived at a wrong conclusion that Gopal Chetty's knowledge about the sale deed relates back to the time when the partition suit was pending and hence the suit is barred by limitation. Such a construction on the point of limitation made by the Courts below is factually and legally wrong. Thus the first substantial question of law is answered in favour of the appellant. 16. The learned counsel for the respondents / defendants 2 and 3 submitted that the appellant / plaintiff ought to have filed a suit for declaration along with the relief of recovery of possession because as on the date when the suit for recovery of possession was filed the possession was lying with the defendants 2 and 3 and they have disputed the title of the plaintiff. It is needless to state that the defendant's predecessor who had executed the sale deed in favour of Palani Chetty was very much a party to the partition suit in O.S.No.109/1963 and the decree passed in O.S.No.109/1963 will bind Kamalammal and her subsequent purchasers also. In such case, it is unnecessary for Gopal Chetty to file a suit to declare the sale deed dated 25.07.1967 or the subsequent settlement deed dated 22.07.1975 as null and void. In such case, it is unnecessary for Gopal Chetty to file a suit to declare the sale deed dated 25.07.1967 or the subsequent settlement deed dated 22.07.1975 as null and void. In fact they are non-est in law since they have been executed during the pendency of the suit in O.S.No.109/1963 and Gopal Chetty can take the advantage of treating those documents as non-est in law and it does not bind his interest. 17. At no point of time Gopal Chetty had claimed that he had the right to possession and right to alienate the suit property during the lifetime of Kamalammal so as to file a dispute as against the defendants 2 and 3 during the lifetime of his mother. Since Kamalammal could have passed only possessory right in favour of the defendants 2 and 3, they cannot dispute the title of the plaintiff or his predecessor Gopal Chetty. Even if they had any dispute as to the title, the same ought to have been resolved when they have had the knowledge about the pending suit in O.S.No.109/1963. In these extraneous circumstances, the plaintiff's vendor Gopal Chetty can ignore Exs.A10 and A13. In view of the above observation, the judgment and decree passed by the first appellate court is liable to be set aside. 18. Neither the defendants nor the plaintiff have made out a case of adverse possession and hence it is unnecessary for the first appellate court to go into the principle of adverse possession. Accordingly, the second substantial question of law is answered in favour of the appellant. 19. In the result, the Second Appeal is allowed and the judgment and decree dated 08.06.2010 made in A.S.No.9/2001 on the file of Addl. District Judge – Fast Track Court No.III, Tiruvallur, is hereby set aside and suit in O.S.No.220/96 on the file of District Munsif Court, Tiruvallur, is decreed. No costs.