Madras High Court
Susila Ammal vs Padmavathy Ammal (Died) on 19 January, 2022
S.A.No.364 of 2006
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 19.01.2022
CORAM
THE HONOURABLE Mrs.JUSTICE J.NISHA BANU
S.A.No.364 of 2006
and
CMP.No.4938 of 2006
1.Susila Ammal
2.Minor Vaishnavi
Rep. by next friend and guardian 1st appellant
…Plaintiffs/appellants
vs.
1.Padmavathy Ammal (died)
2.Iyyadurai Nainar (died)
3.R.Sridhar
4.R.Hari
5.N.Vijay
6.Alamelu
7.Maheswari
8.Balasubramanian @ Senthil
9.Jayathi
10.Rajeswari ..Respondents/Defendants.
R1 – Padmavathy ammal died R3 to R5 are impleaded.
R6 to R10 brought on record as LRs of the deceased R2
vide order of this court dated 20/11/2020
made in CMP.No.843 to 846, 1364, 1777/2008 in S.A.No.364/2006.
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S.A.No.364 of 2006
Prayer: Second Appeal is filed against the judgment and decree dated
25.07.2005 passed in A.S.No. 209 of 2001 on the file of the Principal, District
Court, Villupuram District, confirming the judgement and decree dated
24.09.2001 passed in O.S.No.7 of 2000 on the file of Principal Subordinate
Court, Villupuram.
For appellants : Mr.T.Dhanyakumar
For respondents : Mr.P.Dineshkumar for
Mr.D.Rajasekar for R3 to R5.
JUDGMENT
This second appeal is filed against the judgment and decree dated
25.07.2005 passed in A.S.No. 209 of 2001 on the file of the Principal, District
Court, Villupuram District, confirming the judgement and decree dated
24.09.2001 passed in O.S.No.7 of 2000 on the file of Principal Subordinate
Court, Villupuram.
2. Suit is for partition and also for appointment of Advocate
Commissioner and also directions.
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S.A.No.364 of 2006
3. As per the plaint averments, the suit schedule property is situated at
Thirunaavalur village. Srinivasa Rao and Krishna Rao are the sons of one
Shyama Rao. It was a joint family property. Srinivasa Rao had no issues and
he died without any documents regarding to whom the property must be
divided next. Likewise, Padmavati Ammal, wife of Srinivasa Rao also died.
Therefore the entire property was in the hands of Krishna Rao. Krishnammal
was the wife of Krishna Rao. Sethuammal isthe daughter of Krishna Rao.
Krishnammal’s brother Gopal Rao married Sethuammal. After the death of
Sethuammal, Gopal Rao, married first defendant-Padmavathy Ammal. Krishna
Rao and Krishnammal adopted Sanjeevi Rao, who is the grand son of
Krishnammal’s sister and registered the adoption on 19.02.1971. After the
death of Krishna Rao, Krishnammal given one fourth share of the property to
her son-in-law Gopal Rao. But there was no document in respect of remaining
three fourth share of the property. Gopal Rao and his wife till their death, given
the proceeds/income belonging to three fourth share of the property to Sanjeevi
Rao. Sanjeevi Rao also died in the year 1996. First defendant used to cultivate
and give the proceeds to the legal heirs of plaintiffs. But thereafter since no
income from the suit property was given to the plaintiffs, they sought for
possession. Even the rent was not given by the first defendant. There was an
arrangement between the plaintiffs and first defendant to the effect that the first
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defendant has to manage the properties and give the income therefrom to the
plaintiffs. The said arrangement was in operation till 1997, that is, until the
death of Sanjeevi Rao. According to plaintiffs they are entitled to 3/4 share in
the suit schedule properties. It is alleged that the third defendant along with
first defendant created fabricated documents. Since the suit properties are joint
family properties, item 2 to item 5 are in possession of second and third
defendants and the first defendant is in possession of item six and house
property, the plaintiffs prayed for accounts to be submitted by the defendants
and also income from the property. Further, since defendants 2 to 5 are in
possession of item 2 to 5 properties, the proceeds from the said properties are to
be handed over to the plaintiffs.
4. The first defendant in her written statement denied certain averments
of the plaintiffs. First defendant specifically denied the adoption, arrangement
between plaintiffs and first defendant and the 3/4th share belonging to Sanjeevi
Rao. First defendant submitted that the entire property was in possession of
Gopal Rao. In the lifetime of Gopal Rao neither Sanjeevi Rao nor his wife
claimed any rights in the properties. The suit for partition Is to be dismissed.
5. Second defendant also filed written statement denying the adoption
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document of Sanjeevi Rao dated 19.02.1971. Second defendant submitted that
the entire suit properties were in possession of Gopal Rao and Sanjeevi Rao has
no rights in the properties. After Gopal Rao’s death, first defendant was in
possession of the suit property. First defendant has not given any income from
the property to the plaintiffs. Second defendant has also not given any income
from item 4 and 5properties. There was no arrangement between first
defendant and Sanjeevi Rao. Second defendant by way of registered document
purchased item 4 and 5 properties on 07.08.1973 from Gopal Rao. Second
defendant incurred huge amounts to develop the lands which were purchased
by him.The partition sought for by the plaintiffs in item 4 and 5 is not
sustainable and the suit to be dismissed.
6. The Trail Court after going through the plaint, written statement of 1st
and 2nd defendants framed the following 2 issues for consideration:
1) Whether the plaintiffs are entitled for partition.
2) To what reliefs the plaintiffs are entitled to.
7. On the side of plaintiffs, 1st plaintiff Susila Ammal was examined as
P.W.1 and Srinivasa Rao as P.W.2. Ex. A.1 to A.5 were marked on the side of
plaintiffs. On the side of defendants D.W.1 to 3 were examined and documents
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B.1 to B.41 were marked.
8. The trial court, on going through the plaint, written statement and
evidence placed before, found that Plaintiffs are asking for 3/4thshare in the
schedule properties. On the other hand, 1st defendant submission is that
adoption deed was not true, Will was written on 29.03.1972 and in the year
1986 for the notice given by Sanjeevi Rao, 1st defendant’s husband given reply
to the same objecting to the relief stated in the notice. As such, the defendants
got adverse possession in respect of the properties. Due to the stiff between the
plaintiff and defendant family, there was an arrangement as per which,
Kolakudi properties were settled to Sanjeevi Rao and Thirunaavalur properties
were settled to 1st defendant. Thereafter, Sanjeevi Rao sold the Kolakudi
properties. In such circumstances, after selling Kolakudi property, seeking
share in the Thirunaavalur property is not at all maintainable.
9. P.W.1/Plaintiff stated that after the death of Krishna Rao, 1 /4 share of
the properties were given to Gopal Rao by Krishnammal, therefore, after the
death of Krishnammal, balance 3/4 share should come to Sanjeevi Rao.
Sanjeevi Rao died in 1996, hence, wife/P.W.1 and daughter 2ndplaintiff are
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entitled for ¾ share. Thirunaavalur properties were maintained by the 1 st
defendant and the 1st defendant has given the proceeds out of the said
properties for a period of one year from the death of Sanjeevi Rao. But
thereafter, it was not given. So, a notice has been issued to the 1st defendant
which is marked as Ex.A.4 for which 1st defendant given reply notice which is
marked as Ex.A.5. but the statements in reply notice was not true. 3rd
defendant has purchased item 2 and 3 properties vide sale agreement and the
amounts due out of the said transaction were given to them/plaintiffs. So the
plaintiff clearly stated that they are not seeking for any share in item 2 and 3
properties.
10. One Srinivasa rao was examined as P.W.2. According to him he was
the Accountant till the year 1980, thereafter he was working as Panchayat
Clerk. P.W.2 stated about the properties belonging to Krishnarao and
Krishnammal. Also clearly spoken about the adoption of Sanjeevi Rao by
Krishnarao and Krishnammal that it has taken place before the family members
and the adoption was as per the rituals. Further adoption deed has also been
written. After the death of Krishnarao, last rites has been done by Sanjeevi rao.
Earlier the management of properties were done by Krishnammal and Sanjeevi
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Rao, thereafter, Padmavathy, 2nd wife of Gopal Rao has undertaken it,
however, dispute arose in the year 1986. So Panchayat convened as per which,
7 ½ acres of Kolakudi property, 2 acres and house, and house garden were
given to Padmavathy Ammal (1st defendant) and further Thirunaavalur
properties were also managed by Padmavathy ammal and the proceeds out of
the said land was given to plaintiffs.
11. Per contra, on the side of defendants, Exhibits D.1 to D.41 have been
marked. The details of said Exhibits is as follows:-
Ex.B.1-24.5.1986- Sanjeevi’s notice to Padmavathy Ammal.
Ex.B.2-6.6.86 – Reply notice from the advocate of Padmavathy Ammal.
Ex.B.3 – Chitta copy of schedule property
Ex.B.4 to Ex.B.15 – Patta No.164- tax paid in the name of Gopal Rao.
Ex.B.16- Electricity Bill demand notice sent in the name of Gopal Rao
Ex.B.17- Will written by Gopala Rao in favour of his wife.
Ex.B.18- Patta No.1040 stands in the name of Gopal Rao
Ex.B.19- House land patta given to Padmavathy Ammal.
Ex.B.20 and 21- Patta No.164 and kist receipt from the name change of Gopal
Rao to Padmavathy Ammal.
Ex.B.22 to Ex.B.26 are all Sale agreements written by Sanjeevi to one Kuchitha
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Padayachi and others.
Ex.B.27- Sanjeevi’s document of Mortgage dated 07.10.1985 to one
Saraswathy Ammal.
Ex.B.28-Original Sale document pertaining to Gopal Rao in favour of
Ayyadurai.
Ex.B.29 –Fasli tax details
Ex.B.30 – Chitta relating to schedule properties.
Ex.B.31 to Ex.B.41 – Receipts for paying necessary tax pertaining to Patta
No.164 in the name of Ayyadurai.
12. On the side of defendants, Padmavathy ammal was examined as
D.W.1. In her deposition, she stated that she is the 2 nd wife of Gopal Roa and
the first wife name is Sethu Ammal and Sethu Ammal died who was the
daughter of Krishnammal and Krishna Rao. D.W.1 rejected the adoption of
Sanjeevi. She has stated that Padmavathy Ammal written Will in favour of
Gopal Rao which is marked as Ex.B.3, as per which ¼ share was given to
Gopalrao and that Thirunaavalur properties were given in favour of Gopal Rao
and Kolakudi properties were given in favour of Sanjeevi Rao. She and Gopal
Rao were in possession only of Thirunaavalur property and Sanjeevi Rao never
had enjoyed the properties of Thirunaavalur. As per the above said
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arrangement, name transfer in patta has been effected. Thereafter, house tax,
electricity tax have been paid and receipts stand in the name of Gopal Rao. In
the year 1973, Gopal Rao by sale agreement sold some of the properties to
Ayyadurai. Further in 1983 a Will was written in favour of her/Padmavathy
Ammal in respect of the remaining properties, which is marked as Ex.B.17.
P.W.2 stated that her husband died in the year 1986 and thereafter, she is in
possession of the said properties and she is paying the taxes due and receipt of
such tax payments after her husband’s death has been marked as Ex.B.20 to
Ex.B.22. Only after the death of Gopal Rao, Sanjeevi Rao given notice to her
asking for share in Thirunaavalur property. In so far as Kolakudi properties are
concerned, Sanjeevi Rao sold by way of Registered documents which is marked
as Ex.B.24 to Ex.B.26 and Sanjeevi also mortgaged one property. It is further
stated that Sanjeevi never met her before issuance of notice and for the said
notice, reply notice has been given. It was alleged by the 1st defendant (D.W.1)
that after the demise of her husband Gopal Rao, Sanjeevi asked share in the
properties, issued notice and she sold the property to the 3rd respondent,
however, money payable to her, has been taken by Sanjeevi family. D.W.1
submitted that she is in possession of house and except it, no other property she
owns and that she is not in possession of 6thitem.
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13. D.W.2 Ayyadurai stated that he purchased item 4 and 5 properties
by registered document dated 07.08.1983 vide Ex.B.28. He purchased the same
from Gopal Rao who showed the Parent document.
14. D.W.3 Subburama Iyer deposed that he very well knows Gopal Rao;
also had knowledge about registration of the property by Ayyadurai and the
document was written by one Thandavarayapillai and from the date of
registration, Ayyadurai is in possession of the said property.
15. The trial court, on the basis of above testimonies held that there was
no dispute that originally the property belonged to Krishnammal and
Krishnarao. Krishnammal written a Will in respect of 1/4th share of the
properties which is marked as Ex.P.3. The same was written in favour of 1st
defendant’s husband namely Gopal Rao which was also not disputed. The
plaint prayer is that the remaining 3/4th share of the properties has to be
partitioned only to plaintiffs. Since Sanjeevi is the adopted son of Krishnarao,
his share of the properties has to be given to the plaintiffs, who are the wife and
children of Sanjeevi.
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16. Krishnammal and Krishnarao had no issues and therefore, they
adopted Sanjeevi as foster son and that was proved by adoption deed and also
witness on the side of plaintiffs. However, learned counsel on the side of
defendants argument was that natural father of Sanjeevi has not signed in the
adoption deed and hence, the said adoption cannot be taken as legally valid
one. However, the trial court viewed that as per Ex.A.3, Krishnammal had
written that her adopted Son Sanjeevi. Even Ex.A.1 would go to show that
Sanjeevi is the adopted son of Krishnammal. The trial court pointed out that
from the evidence, it is clear that Sanjeevi was the adopted son of Krishnammal
and Krishnarao and the document dated 19.02.1971 is acceptable.
17. The next issue was with respect to properties. Totally 6 items has
been stated in the suit schedule properties, in which, item 2 and 3 have been
sold after the filing of the suit and the plaintiffs stated to have received money
in respect of the said transaction. Therefore, the trial court restricted the relief
in respect of items 1, 4, 5 and 6 of the suit schedule properties.
18. In respect of item Nos.4 and 5, the evidence would clearly make out
that those properties were sold to Ayyadurai (2nd defendant) who after
execution of the registered document, was in possession of the same. The
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properties transferred to the name of Ayyadurai was clearly proved by exhibits
Ex.B.31 to Ex.B.41. Further based on Exhibits D. 28 to D.41, it was very clear
that item 4 and 5 properties have been registered in the name of Ayyadurai in
the year 1973 and he is in possession of the same.
19. In respect of other properties, it was contended before the trial court
on the side of 1st defendant that as per the oral agreement between the two
families, Kolakudi properties totally 10 acres land and house have been settled
to Sanjeevi. Thirunavallur properties i.e. 4 acres land, land with house have
been settled to Gopal Rao. Kolakudi properties registered in the name of
Sanjeevi by Gopal Rao is also proved on the side of defendant by Ex.B.24 to
Ex.B.26. The trial court held that documents exhibited would show that
Kolakudi properties were in possession of Sanjeevi and he had sold the same to
few persons. However, there was no document exhibited on the side of
plaintiffs to show that Gopal Rao was in possession of Kolakudi properties.
Therefore, the trial court held that Kolakudi properties were in entire
possession of Sanjeevi.
20. In respect of item 5 and 6 properties, it was proved by defendants 1
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and 2 that 1st defendant along with her husband Gopal Rao was in possession
of the property for more than 12 years and therefore, by adverse possession, 1st
defendant proved that it is their property and also produced documents to show
that they have been paying all taxes.
21. According to 1st defendant, in the year 1986, when Gopal Rao was
alive, Sanjeevi issued notice seeking for share in the properties owned by
GopalRao and that time itself, a reply notice was sent to Sanjeevi. So when the
division of properties were refused by Gopal Rao in the year 1986 itself, the
present suit was filed in the year 2000. Even though plaintiffs taken a plea that
they have share in the schedule mentioned properties, by virtue of adverse
possession, 1st defendant is only entitled to the said properties. The said legal
position was drawn to attention by the trial court . The trial court further went
on to discuss that only on the premise of adverse possession, the defendants 1
and 2 cannot take a stand that they are in absolute possession of items 1, 4 , 5
and 6 properties. Since it was claimed by the plaintiffs that on the permission of
plaintiffs, in respect of item 1, 1st defendant was in enjoyment and items 4 and
5 of properties were in enjoyment of 2nd defendant and the 1st and 2nd
defendant were giving the proceeds coming out of those lands. The trial court
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held that even assuming that by notice in the year 1986, Sanjeevi refused the
adverse possession stand taken by the 1st and 2nd defendants, they would have
filed the suit within 12 years of such claim. However, only in the year 2000,
present suit has been filed. The trial court therefore, held that in view of
limitation, the suit is not maintainable. Further, 1st defendant by way of
registered document, sold item 4 and 5 properties to 2nd and 3rd defendants,
therefore, the right of share in the schedule mentioned properties is no longer
available and accordingly, 3/4th share prayed for by the plaintiffs cannot be
granted.
22. So the trial court, held that by virtue of limitation also, the plaintiffs
are not entitled to suit schedule properties and as such, dismissed the suit.
23. Aggrieved by the said judgment passed by the trial court, the
plaintiffs filed first appeal. The argument of plaintiffs before the first appellate
court is that even though Kolakudi properties were settled to Sanjeevi by way of
oral arrangement, in respect of Thirunavalur properties i.e, suit schedule
properties, since it has been written in Will by Krishnammal that Gopal Rao
being the son in law is entitled to 1/4th share, the remaining 3/4th share has to
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be given to plaintiffs.
24. The first appellate court held that even during the life time of
Sanjeevi, Gopal Rao and 1st defendant were not giving proceeds out of the
income from lands to plaintiffs and plaintiffs have not claimed their share. Till
06.01.2000, no case has been filed against the defendants. Since the 1st and 2nd
defendants are in possession of the properties for more than 12 years, by virtue
of adverse possession, the defendants are in absolute possession of the suit
schedule properties and the prayer of the plaintiffs cannot be granted. As such,
the first appellate court confirmed the findings of the trial court and dismissed
A.S.No.209 of 2001.
25. The unsuccessful plaintiffs are before this court. This court while
admitting the Second appeal, framed the following substantial questions of
law:-
1.Whether the decision of the courts below is vitiated in
holding that the defendants have prescribed title by adverse
possession without considering the close relationship of the parties
and also that the parties to the proceedings are co owners?
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2.Whether the decision of the courts below is vitiated in the
absence of plea of ouster by defendants especially when the
defendants cannot prescribe title by adverse possession against the co
owners ?
26. The learned counsel for the appellants/plaintiffs would submit that
suit items was acknowledged by the parties and their shares are paid
periodically and hence, there could not be any adverse possession relating to
the suit properties. Even the plaintiffs acknowledged heir right in respect of
item 2 and 3 properties in their favour. By oral and documentary evidence,
plaintiffs proved that till the life time of Gopal Ro, plaintiffs’ share of income
was given to them. Since plaintiffs’ share of income was given, the claim of
adverse possession cannot be taken that too when Gopal Rao being maternal
uncle of Sanjeevi Rao and in such close relationship, claiming adverse
possession by the representatives of Gopal Rao is not correct.
27. It is also argued that defendants have not taken specific plea of ouster
and therefore, the courts below erred in non suiting the plaintiffs on the ground
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of adverse possession. It is further submitted that in Ex.B.29 name of Sanjeevi
Rao has found place in the years 1975, 1981 and 1984. Per contra, learned
counsel for respondents 3 to 5 submitted that the judgment passed by the trial
court is based on facts and evidence and the same has been confirmed by the
first appellate court, which does not require any interference by this court.
28. In order to oust by way of adverse possession, one has to lead
definite evidence to show that to the hostile interest of the party that a person is
holding possession and how that can be proved will depend on facts of each
case. Having regard to the peculiar facts involved in the case, this court is of the
opinion that the plaintiffs had established that Krishnammal written Will giving
1/4th share of suit schedule properties to Gopal Rao and so they are entitled for
3/4th share. Further, Sanjeevi Rao is the adopted son of Krishnammal and
Krishnarao. While Sanjeevi is the adopted son of the Krishnammal and
adoption deed has also been accepted by the trial court, being son of
Krishnammal, Sanjeevi rao is entitled to Krishnammal’s properties. When it is
the case of defendants that Gopal Rao was in possession of the properties,
being son in law, he acquired title by ousting the plaintiffs, by declaring hostile
title in himself which was to the knowledge of his cosharers, Gopal Rao was
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sharing income to the plaintiff’s family at that point of time.
29. Possession of co-sharer is concerned, it cannot be adverse to the
plaintiffs, unless there is a denial of their right to their knowledge by the person
in possession and exclusive and ouster following thereon for the statutory
period. Co-owner in exclusive possession cannot render his possession adverse
to the other co-owner, but if a co-owner fails to asserts his right for
considerable length of time, his right may extinguish by lapse of time. But in
the case on hand, it is accepted by the defendants that as early as on 1986,
Sanjeevi issued notice claiming share in the suit schedule properties. In
Cheedella Padmavathi & Others vs Cheedella Lakshminarasimha Rao
(died) per LRs. & Others reported in 2015(5) ALT 634, it was held that a
person pleading adverse possession has no equities in his favour, since he is
trying to defeat the rights of the true owner, thus it is for him to clearly plead
and establish all facts necessary for adverse possession. Property ownership is
certainly desired by all of us, but this coveted position comes with a lot of
complexities.
30. Permissive possession cannot be said to be as adverse possession.
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Since the 1stplaintiff’s husband Sanjeevi is the adopted son of Krishna Rao and
Krishnammal, the claim of the plaintiffs has to be considered in proper
perspective. As narrated in the preceding paragraphs, relief is not sought for in
terms of items 2 and 3 of the schedule mentioned properties. As far as items 4,
5 and 6 are concerned, those properties have already been transferred to the
names of 2nd and 3rd defendants by way of registered sale deed. Therefore, item
1 suit schedule property is alone available for partition. As such, the plaintiffs
are entitled to item 1 of the suit schedule property in respect of their partition.
31. In view of the above discussion, the Second Appeal is partly allowed.
The plaintiffs are entitled to item 1 of the suit property alone. Substantial
questions of law are answered in favour of the plaintiffs. Since already this
court by order dated 29.11.2006, granted interim injunction restraining the first
defendant from making any alienation of the 1st item of property and the
Second Appeal is allowed, injunction granted becomes absolute and the petition
stands closed. Considering the relationship of the parties, there shall be no
orders as to costs.
nvsri 19.01.2022
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To
The Principal, District Judge, PDJ Court, Villupuram District,
2.The learned Principal Subordinate Judge,
Subordinate Court, Villupuram.
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J.NISHA BANU, J.
nvsri
S.A.No.364 of 2006
19.01.2022
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