N JAYALAKSHMI AMMAL Vs. R GOPALA PATHAR

JUDGEMENT

(1.) Plaintiff's Nos. 2 to 3 in O.S. No.42 of 1973, Subordinate Judge's Court, Kumbakonam, legal heirs of plaintiff No.1 who died pending the suit, are the appellants in the appeal. Defendants Nos. 1 and 2 in the suit are the respondents herein. The plaintiffs have preferred this appeal against the Judgment of the Madras High Court in Second Appeal No. 1502 of 1979, dated 15.6.1984. The said Judgment is reported in AIR 1984 Madras 340:R Gopala Pathar v. N. Jayalakshmi Ammal.

(2.) In order to understand the nature of the controversy raised in this appeal a few facts may be stated. The property in dispute (in the suit) measures 10 feet east to west and 125 feet north to south in Big Street, Kumbakonam Town, Tamil Nadu. The suit property as well as similar extent measuring in all 10 feet east to west and 250 feet north to south belonged to one Visalakshmi Ammal. On 1-2-1928, by Exhibit B.1 Visalakshmi Ammal sold the entirety of the property aforesaid to one Govindaswamy and his brother Srinivasa, who was then a minor and was represented by his mother as guardian. In the document, Srinivasa was described as an undivided minor son in the family. The acquisition purports to be on behalf of the joint family consisting of Govindaswamy and his brother Srinivasa, sons of one Kuthaperumal Vidyar. On 29-8-1927, Govindaswamy was married to Kasambu Ammal (PW.2). They lived as husband and wife for about 3 years. They had no children. Thereafter Govindaswamy was not heard of. On 23-8-1970, by Exhibit A.4 (same as Exhibit A.11) Kasambu Ammal executed a sale deed in respect of the suit property in favour of one Nataraja Iyer, plaintiff No.1 for Rs.5,000/-. On the basis of Exhibit A.4, Nataraja Iyer instituted O.S. No.42 of 1973, in Sub-Court, Kumbakonam, praying for a declaration of his title to the suit property and also for a declaration that he was entitled to claim certain amounts lying in Court deposit to the credit of R.C.O.P. No.11 of 1971. The said R.C.O.P. No.11 of 1971 was a proceeding initiated by the 1st defendant (1st respondent) against the second defendant - the tenant (second respondent herein). The main contesting defendant is the first defendant, the first respondent herein. He contended that Kasambu Ammal was not the wife of Govindaswamy and had no interest in the suit property, and that the sale deed in favour of Nataraja Iyer was bogus and would not operate to convey any title to the suit property. According to him, Govindaswamy and Srinivasa constituted members of a joint Hindu family and since Govindaswamy was not heard of for over 7 years, Srinivasa became the sole surviving coparcener who acquired title to the suit property by adverse possession, and as per Exhibit B.2 dated 10-9-1970, he had acquired title to the entirety of the suit property from Srinivasa and so the first plaintiff Nataraja Iyer was not entitled to the reliefs prayed for in the suit. The second defendant in the suit was a tenant against whom an order of eviction was passed. Since a rival claim of title to the property in his occupation was put forth by the first defendant, he contended that he was an unnecessary party to the suit and so the suit may be dismissed against him. The learned Sub-Judge by his Judgment dated 8-11-1976, found that Kasambu Ammal was the wife of Govindaswamy and was in possession of the undivided half share in the property, but the purported sale by her, of a definite portion i.e. front half of the property, was invalid. It was further held that Kasambu Ammal was in possession along with Srinivasa just 6-7 years prior to the filing of the suit and so the sale deed, Exhibit B.2 dated 10-9-1970 executed by Srinivasa in favour of the first defendant, though true, was not valid as Srinivasa was not solely and absolutely entitled to the property and had not perfected title to the property by adverse possession. It was further held that the sale deed, Exhibit A.4 by Kasambu Ammal to the first plaintiff Nataraja Iyer was fradulent and antedated and in the result the suit was dismissed. The first defendant filed an appeal, A.S. 182 of 1977 before the District Judge, West Thanjavur and contended that as per Exhibit B.2 he had absolute title to the entire property and the Court below was in error in not holding so. In the cross-objections, plaintiffs 2 to 8, legal heirs of the plaintiff No.1 contended that the Trial Court was in error in not decreeing the suit for half of the property which belonged admittedly to Govindaswamy and was sold by his wife Kasambu Ammal as per Exhibit A.4 to the first plaintiff on 23-8-1970. The learned District Judge of West Thanjavur, by Judgment dated 16-9-1978, found that Kasambu Ammal was the wife of Govindaswamy, that the exact date of death of Govindaswamy was not known, that Srinivasa had not perfected title to the suit property either by ouster or by adverse possession, that Nataraja Iyer had acquired title to one-half of the property by Exhibit A.4, that the first defendant would also be entitled to an undivided half share in the property as per the sale deed executed by Srinivasa in his favour, Exhibit B.2 and it will be open to the parties to file a separate suit for partition of the suit property and also for apportioning the amounts lying to the credit of R.C.O.P. No.11 of 1971. Accordingly, he passed a decree declaring that the plaintiffs 2 to 7 as well as the first defendant are each entitled to an undivided half share in the entire house property and to half of the amount lying in Court deposit to the credit of R.C.O.P. No.11 of 1971. The appeal as well as the memorandum of cross-objection were partly allowed. The first defendant carried the matter by way of second appeal before the High Court, Second Appeal No.1502 of 1979. The learned single Judge of the Madras High Court after referring to the relevant findings of the Courts below and the law on the point, held as follows:

(3.) We heard counsel for the appellants Mr. Rajendra Chowdhary and also counsel appearing for the respondents. Before us, counsel appearing in the case put forward the following arguments: Appellant's counsel submitted that Govindaswamy, husband of Kasambu Ammal was not heard of ever since August 1930. The Hindu Women's Rights to Property Act came into force on 14-4-1937. The suit was filed in 1973, nearly 43 years after Govindaswamy was last heard of. In such circumstances, Govindaswamy should be presumed to be dead. Since Govindaswamy was not heard of for more than 7 years by Kasambu Ammal and others who would have naturally heard of him if he had been alive, under Section 108 of the Evidence Act, he should be presumed to have died long ago and at any rate, long before Exhibit A.4 (A.11) sale deed was executed by Kasambu Ammal to the first plaintiff. The Courts below were in error in not giving effect to the presumption flowing from Section 108 of the Indian Evidence Act and in decreeing the plaintiff's claim to the suit property and to the amount of deposit in the rent control proceedings. On the other hand, counsel for the respondents contended that Govindaswamy was not heard of for more than 7 years by persons who would have naturally heard of him if he had been alive, and there is a presumption that Govindaswamy is dead but this presumption extends no further. It cannot be presumed that he died on any particular date. The date on which Govindaswamy died is a crucial fact in this case and is a matter of proof. In this case, there is no proof regarding the date of death of Govindaswamy. It is only by the provisions of Hindu Women's Rights to Property Act, Kasambu Ammal could get any right. The said Act came into force on 14-4-1937, within a period of 7 years when Govindaswamy was last heard of. There is no proof in this case to show that Govindaswamy died on or after 14-4-1937. In the absence of the proof as to when Govindaswamy died, it cannot be presumed nor can the plaintiffs contend, that Govindaswamy must be deemed to have died on or after 14-4-1937 when the Hindu Women's Rights to Property Act came into force and Kasambu Ammal became entitled to an undivided (half) interest in the property. On the other hand, on the death of Govindaswamy, the sole surviving coparcener Srinivasa became entitled to the property by survivorship and he was entitled to deal with the entire property and to execute the sale deed dated 10-9-1970 in favour of the first defendant. The first de-fendant became entitled to the entirety of the property as he had purchased the property from the sole survivor Srinivasa. Thus the entire controversy centres round the applicability and the extent and scope of Section 108 of the Evidence Act, to the instant case.