KALIAMMAL AND ORS. Vs. MUTHU PILLAI ALIAS

JUDGEMENT

(1.) THIS Letters Patent Appeal arises out of a suit (O.S. No. 99 of 1955) filed in the court of the Subordinate Judge, Madurai. The plaintiff in the suit (Vellaichami Pillai) is the appellant before us. The suit was brought for a declaration of the plaintiff's title to the suit properties and for an injunction restraining the defendants from interfering with the plaintiff's possession. The actual contest is between the plaintiff on the one hand and the 3rd defendant on the other. The 3rd defendant's claim of title arises thus: defendants 4 and 5 (Somasundaram Pillai and Chokku Pillai) were adjudicated insolvents in I.P. No. 5 of 1960 on the file of the Subordinate Judge, Madurai, and their estate vested in the Official Receiver. On the footing that the suit properties belonged to defendants 4 and 5, the Official Receiver put up for sale the lease -hold right in them for a period of one year, and the auction purchaser was the 2nd defendant. Later, the interest of the insolvents was put up for sale and the auction purchaser was the 3rd defendant, the price being Rs. 11,000. Thus, the question would be whether the plaintiff is entitled to the properties or whether the properties would belong to defendants 4 and 5 and consequently to the 3rd defendant. Ultimately, before us, only two points were pressed by Sri Gopalaswami Iyengar, the learned counsel for the appellant, which will be indicated in due course. But for coming to a decision on one of the two points, namely, the date of death of Muthuswami Pillai, the father of the plaintiff, it will be necessary to refer briefly to some of the other matters.

(2.) THE admitted last male owner of the property was Periya Appavoo Pillai, who died in 1909, leaving him surving two widows, Sivayogathammal and Rakkammal. Since the mother of defendants 4 and 5 is also known as Rakkammal, it will be convenient to refer to Periya Appavoo Pillai's widow as Rakkammal No. 1 and to the mother of defendants 4 and 5 as Rakkammal No. 2. The two widows, Sivayogathammal and Rakkammal No. 1, inherited the property of Periya Appavoo Pillai, of course in the limited estate known to Hindu law as the Hindu Women's Estate. Sivayogathammal died in 1943. The surviving widow, Rakkammal No. 1 died on 15 -7 -1944. About these facts, there is no dispute. The plaint, when it was filed on 20 -6 -1962, proceeded on the basis that the plaintiff was the next reversioner to Periya Appavoo Pillai on the death of Rakkammal No. 1. This was the main basis on the plaintiff's claim. There was also a subsidiary basis that the widow had surrendered possession to him in 1921 itself and the plaintiff claimed that he would be entitled to relief on the strength of this possessory title referring to the main basis of the title claimed by the plaintiff. The plaint gives a geneological table, showing how he and defendants 4 and 5 were related to the last male owner, Periya Appavoo Pillai. For our purpose, we may omit some of the names mentioned there, and it is sufficient to exhibit the following genealogical table:

(3.) THE plaintiff or his legal adviser evidently realised at that stage that it would be difficult to deny the relationship of defendants 4 and to Periya Appavoo Pillai through their mother Rakkammal No. 2 as put forward by the 3rd defendant, and that on such a basis of relationship, defendants 4 and 5 would really be nearer heirs than the plaintiff. The plaintiff, therefore, sought to overcome this difficulty by taking a transfer deed dated 18 -9 -1952, Ex. A -81, from Rakkammal No. 2 and Muthuammal for an alleged consideration of Rs. 500.