A S VIDYASAGAR Vs. S KARUNANANDAM

JUDGEMENT

(1.) This appeal by special leave is at the instance of the first defendant A. S. Vidyasagar whose effort is to establish title to a house in his possession by two means, which would presently be discussed hereafter.

(2.) One Meenakshi Iyer had three brothers two of whom had no male progeny, but there were females/daughters in their line. The 3rd one, however, had a son and a daughter named respectively as Kuppuswami and Kanthimathi. Meenakshi iyer died issueless in the year 1939. His widow Thulasi Ammal claimed his properties on the basis of a will dated 9/08/1931 which wascontested by Kuppuswami. During the course of litigation document Ex. A-3 was recorded in the year 1942 whereby Thulasi Ammal released the properties she had received under the will in favour of Kuppuswami in consideration of rs 12,000. 00 in cash for her exclusive use. By means of the said release deed, she obligated Kuppuswami to give 'stridhana' to the daughters of family in all the branches, separately categorised inclusive of Kanthimathi Ammal, the daughter in the fourth line.

(3.) It appears that Meenakshi Iyer during his lifetime had put Kanthimathi ammal in possession of a house permissively. After his death in 1939, she continued to be in possession till she died in 1948 leaving behind the appellant herein as a four-year-old-child with her husband living in the same house. The father of the appellant later vacated the house when the appellant grew to be an adult. On the basis of the title perfected under the Release Deed Ex. A-3 kuppuswami sold the house, which was in possession of Kanthimathi, to the present contesting respondents and left it to the vendees to secure possession from the appellant. On the appellant's refusal to vacate the house, a suit for possession was filed by the vendees. The appellant set up two pleas, namely, that his mother Kanthimathi had received the house towards her 'stridhana' and documents of title alone had to pass formally under the Release Deed Ex. A-3 and secondly that Kanthimathi and after her the appellant had perfected title to the house by adverse possession. The trial court as also the High court in appeal came to the conclusion that the house could not have come to Kanthimathi as her 'stridhana' for there was no basis, documentary as well as oral supportive thereof. With regard to adverse possession, the High court seemingly committed an error by observing that the plea as such had not been raised in the written statement, even though there was an issue framed to that effect and on that basis rejected the claim of adverse possession. It transpires that such a plea had in fact been taken in the written statement. On that basis, it was urged before us that the finding of fact recorded by the High court was vitiated and we should re-examine the evidence on that score.