RAJAMANI AMMAL Vs. BHOORASAMI PADAYACHI

JUDGEMENT

(1.) THE plaintiff is the appellant. She filed a suit for a declaration of her title to the suit properties consisting of 8 items and or possession of the same from the defendants with mesne profits. The plaintiff claimed that the suit properties originally belonged to her mother Alamelu Ammal, she having purchased the same with her own funds from one Venkatachala Padayachi under a sale deed Ex. A. 2 dated 8-4-1935 for a sum of Rs. 500, that the plaintiff has become the stridhana heir of her mother, and that as the plaintiff was a minor at the time of her mother's death her father Kannusami Padayachi and after his death the first defendant, her brother, had been managing the suit properties on her behalf. The plaintiff alleged that neither her father, Kannusami Padayachi nor her brother, the first defendant, had any right or interest over the suit properties, but that taking advantage of the fact that the plaintiff had just attained majority, the first defendant obtained a registered release deed Ex. A. 7, dated 7-9-1957, by exercise of coercion and undue influence. The plaintiff's case is that the said release deed ex. A. 7 is void and inoperative, that the first defendant, taking advantage of the said release deed purported to have been executed by the plaintiff, had sold items 3 and 6 measuring in the aggregate 1 acre 11 cents to the third defendant, that similarly second defendant also is an alienee of some of the suit items, that the alienations made by the first defendant in favour of defendants 2 and 3 are not valid and binding on her, and that, therefore, she is entitled to have her title to the suit properties declared and to recover possession of the same from the defendants.

(2.) THE first defendant appeared in Court on the first hearing date and endorsed on the plaint that the suit might be decreed as prayed for. The second defendant who is a minor acting through her mother as guardian remained ex parte. The 3rd defendant alone contested the suit. He contended that the suit as framed is not maintainable, that it is also barred by limitation as it has not been filed within 3 years from the date of execution of the release deed by the plaintiff, that the suit properties were not the stridhana properties of the plaintiff's mother, Alamelu ammal, that she had no wherewithall to purchase the properties, that the properties had been purchased by the first defendant's father, Kannuswami padayachi for the benefit of the family benami in the name of his wife, Alamelu ammal, that Kannuswami Padayachi alone enjoyed the properties in his own right till his lifetime and thereafter the first defendant had been enjoying the same in his own right and that, therefore, the plaintiff cannot claim any right in the suit properties. According to the third defendant the release deed Ex. A. 7 was taken by the first defendant from the plaintiff only by way of abundant caution and to place the matter beyond controversy it is binding a bona fide purchaser from the first defendant of items 3 and 6 for a consideration of Rs. 4500 under Ex. B. 5 dated 21-4-1962.

(3.) ON these pleadings, the trial Court considered in the main three issues namely (i) whether the sale deed in favour of Alamelu Ammal, Ex. A. 2 was benami for the benefit of the joint family as alleged by the 3rd defendant; (ii) if Ex. A. 2 is not benami, whether the release deed Ex. A-7 dated 7-9-1957 executed by the plaintiff is vitiated by misrepresentation, undue influence and coercion as alleged by the plaintiff and (iii) whether the suit is barred by limitation. The trial Court held on a consideration of the evidence on record that Ex. A. 2 is not benami for the benefit of the joint family and that the suit properties are the exclusive properties of Alamelu Ammal and not that of the joint family of her husband, kannuswami Padavachi and his son. On the question as to whether the release deed Ex. A. 7 is vitiated by misrepresentation, undue influence and coercion, the trial Court expressed the view that the same is void and inoperative as it has been brought about by the first defendant by exercising undue influence on the plaintiff when she was under his charge without any independent advice. On the third question the trial Court held that the suit as framed is not barred by limitation as in its view neither Art. 56 nor Art. 58 of the Limitation Act of 1963 applied to the facts of this case, and that Art. 65 prescribing the limitation of 12 years for recovery of possession alone applied to the facts of this case. In that view the trial court decreed the plaintiff's suit as prayed for.