R GOPALA PATHAR Vs. N JAYALAKSHMI AMMAL

JUDGEMENT

(1.) The first defendant in O. S. No.'42 of 1973, Sub-court, Kumbakonam, is the appellant in this Second Appeal which arises out of a suit for a declaration of title to the property and for a declaration with reference to certain amounts lying in court deposit instituted by one Natarajan Iyer, who figured as the plaintiff originally and whose legal representative's are respondents 1 to 7 in this second appeal. The 8th respondent. herein, who figured as the second defendant in the suit, claims to be a tenant in occupation of the disputed property. The property in dispute measures 10" east to west and 125 north to south in Big Street, Kumbakonam town. Originally, this property as well as a similar extent measuring in all 10 east to west and 259 north to south belonged to: one Visalakshi Ammal. One Kuthaperumal Vaidyar was a flourishing native doctor in Kumbakonam and he died in or about 1926. Through his first wife, he had a son Govindaswamy. Srinivasa was another son of Kuthaperumal through his second wife Lokambal. On 29-8-1927, Govindaswamy married to Kasarnbu (P.W.2) and it is not now in dispute that Govindaswami and Kasambu lived as husband and wife for a period of about 3 years after the marriage that they had no children and that thereafter Govindaswamy bas not been heard of. On 1-21928 Visalakshi, who was 4 entitled to the entirety of the property, sold the same to Govindaswamy and his brother Srinivasa, who was then a minor and was represented by his mother and guardian Logambal. In that document. Srinivasa was described as an undivided minor son in the family and there is no dispute that the house was purchased from Visalakshi in favour of Govindaswami and his then minor brother Srinivasa and that the acquisition was on behalf of the joint family, which then consisted of Govindaswamy and his minor brother Srinivasa. On 23-8-1970, Kasambu Animal purported to execute a sale deed in respect of the suit property in favour of Nataraja lyer, whose legal representatives are respondents 1 to 7 in this second appeal, for a consideration of Rs. 5,000/-. It is on the strength of this sale deed thai Nataraja lyer instituted 0. S. No. 42 of 1973, SubCourt, Kumbakonam, praying for a declaration of his title to the suit property and also for a declaration that he is entitled to claim certain amounts lying in court deposit to the credit of R, C, 0. P. No. 11 of 1971 instituted by the appellant against the 8th respondent herein. The appellant resisted the suit contending that Kasambu Ammal was an utter stranger and not the wife of Govindaswamy and had therefore no interest whatever in the suit property, that the sale deed in favour of Nataraja Iyer was a bogus transaction and would not operate to convey any title in. favour of either Natarajan Iyer or his legal representatives, that Govindaswamy and Srinivasa constituted members of a joint Hindu family and since Govindaswamy was n9t heard of for over 7 years, Srinivasa became the sole surviving coparcener and had also acquired title to the suit property by adverse possession and, therefore, under the sale deed executed by.Srinivasa ,on 10-91970, he had acquired title to the entirety of the property and, therefore, Nataraja Iyer was not entitled to the relief of declaration of title or even a declaration with reference to the amounts deposited by the 8th respondent herein to the credit of the eviction proceedings initiated by the appellant in R. C. 0. P. No. II of 1971. The 8th respondent contended that as a rival claim of the title to the property in his occupation was put forth by the appellant and respondents 1 to 7, he was prepared to execute a rent deed after a decision regarding title was Yendered, though an order of eviction had been passed against him in R. C. 0. P. No. I I of 1971 filed by the appellant herein. It was also his further plea that he was an unnecessary party to the suit and therefore, the suit as against him should be dismissed.

(2.) Before the Sub-Court, Kumbakonam, on behalf of respondents 1 to 7, Exs. A.1 to A. 12 were marked and P. W. I to P. W. 8 were examined. while, on behalf of the appellant, Ex. B. I to Ex. B. 46 were filed and D. W. I to D. W. 6 were examined. On a consideration of the oral as well as the documentary evidence, the learned Subordinate Judge found that Kasambu Ammal was the wife of Govindaswamy and had title to and was in possession of an undivided half share in the property and, therefore, the purported sale by her of a definite portion viz., the front half of the property was invalid, that Kasambu Ammal was in possession of the property afong wfth Srinfvasa tilf about six or seven years prior to the filing of the suit, that the sale dt. 10-9-1970 executed by Srinivasa in favour of the appellant, though true and supported by consideration was not valid, that Srinivasa was not solely and absolutely entitled to the property and had also not perfected title by adverse possession and that the sale in favour of deceased Nataraja Iyer was fraudulent and ante dated. In effect, therefore, the learned Subordinate Judge found that neither the appellant nor deceased Nataraja lyer can be said to be the real owner of the disputed property and in that view, the suit was dismissed. Aggrieved by that, the appellant preferred an appeal in A. S. No. 182 of 1977 and respondents I to 7 preferred a memorandum of cross objection in so far as their claim was negatived by the trial court. The learned District Judge found that Kasambu 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 adverse possession, that Nataraja 1yer had title to one-half of the entire property by reason of the sale in his favour under Ex. A. I I dt. 23-81970 executed by Kasambu in his favour, that the appellant would also be entitled to an undivided half share in the entire property on the strength of the sale executed by Srinivasa in his favour, that it would 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. 0. P. No. I I of 1971, Rent Control Court. Kumbakonam and accordingly a decree declaring that the appellant as well as respondents I to 7 are each entitled to an undivided half share in the entire house propertyand to half of the amount lying in court deposit to the credit of R. C. 0. P. No. II of 1971, Rent. Control Court, Kumbakonam was passed. In the result. the appeal as well as the memorandum of cross- objections were partly allowed and. it is the correctness of this that is challenged in this second appeal.

(3.) The principal contention advanced by the learned counsel for the appellant is that even at the time when the property in, dispute was acquired under Ex. B. I dt. I2-1928 from Visalakshi, Govindaswamy and Srinivasa constituted members of an undivided Hindu family and the family continued to remain as such and that though by reason of Govindaswamy not having been heard of for more than 7 years, a presumption that he died can be raised under S. 108 of the Evidence Act, yet, there was no such presumption with reference to the actual date of his death and unless respondents 1 to 7 establish clearly by evidence that Govindaswami died on or after 14-4-1937, when the provisions of the Hindu Women's Right to Property Act came into force, Kasambu Ammal could not have acquired any interest in the undivided half share which belong to Govindaswami and, therefore, she could not in turn have conveyed any interest in favour of Nataraja Iyer under the sale deed Ex. A. 11 dt. 23-8-1970 executed by her. It was also further submitted by the. learned counsel that in the absence of any evidence relating to the actual date of death of Govindaswami, the provisions of the Hindu Women's Right to Property Act would not apply so that by reason of the operation of the rule of suvivorship, Srinivasa became exclusively entitled to the entire property which 'he was competent to deal with and dispose of in any manner he liked and therefore the sale under Ex. B. 2 dt. 10-9-1970, which has been found to have been executed by Srinivasa in favour of the appellant even by the lower appellate court, would operate to convey title to the appellant in respect of the entirety of the property. On the other hand, the learned counsel for respondents 1 to 7 would contend that though Govindaswami was not heard of for a period of nearly 7 years leading to the drawing of a presumption regarding his death, yet, such a presumption should be so drawn to the effect that Govindaswami died on 14-4-1937 and that therefore the sale in favour of Nataraja Iyer, the predecessor-in-title of respondents I to 7 by Kasambu Ammal, wife of Govindaswami, would. be valid and operative to convey title in respect of half of the property at least. Alternatively, the learned counsel relied upon Ex. A. 12, a notice issued on 3111967 to contend that Govindaswami left his usual abode only in 1941 and had not been since heard of and, therefore, if at all any presumption could be raised under S. 108 of the Evidence Act, he could be presumed to be dead only 7 years thereafter by which time, the provisions of the Hindu Women's Right to Property Act had already come into force and, therefore, the sale deed executed by Kasambu Ammal in favour of Nataraja lyer would not be subject to any infirmity.