KANDAMMAL AND OTHERS Vs. KANDIAH THEVAR AND ANOTHER

JUDGEMENT

(1.) The plaintiff who failed in the trial Court and succeeded in part in the lower appellate Court is the appellant. She filed the suit for declaration of her title to two items of house properties and for recovery of possession of the same. The appellant is the elder sister of the respondents. They are all the children of Ganapathi Sundara Thevar who is stated to have died in or about 1940 and Valavanthammal who was examined as D.W.2. According to the appellant, item 1 belonged to her father Ganapathi Sundara Thevar and was gifted by him to his wife D.W.2 under Exhibit A-1 dated 28th Oct., 1931 and D.W.2 got item 2 in exchange under Exhibit A-2 dated 28th Oct., 1963 and she sold both items 1 and 2 to her under Exhibit A-3 dated 11th Dec., 1964 for a consideration of Rs. 1,000. The appellant alleged that after she purchased under Exhibit A-3, she bad leased the properties to Avudaikannu Thevar, P.W.2 on a rent of Rs. 25 per mensem, that he was in possession for 6 months and that thereafter she leased the properties to the first respondent orally on a rent of Rs. 30 per mensem from Aug. Sept., 1966 but that the first respondent did not pay the rent and when demanded, he sent the notice Exhibit A-6, dated 29th Feb., 1968 saying that the appellant had no title and that after his father's death, both the respondents were in possession and enjoyment of the properties.

(2.) The second respondent allowed the suit to proceed ex parte. The first respondent alone contested the suit. But he did not claim any interest in item 2. Regarding item 1, the first respondent's defence was that it was ancestral property in the hands of his father and could not have been gifted by him to his wife D.W.2 under Exhibit A-1 when the first respondent had been born, that Exhibit A-1 was not acted upon and that both the respondents have perfected title to item 1 by adverse possession. The first respondent further contended that the sale of item 1 under Exhibit A-3 was fraudulent and that there was no lease in favour of P.W.2 or himself.

(3.) The trial Court found that item 1 was ancestral property in the hands of the appellant's father Ganapathi Sundara Thevar, that Exhibit A-1 was executed when the first respondent was in the womb and was void and that it did not come into force. The birth register extract Exhibit B-4 shows that the first respondent was born on 27th March, 1932, and he must have been in the womb of D.W.2 on the date of the execution of the gift deed Exhibit A-1, namely 28th Oct., 1931. The trial Court further found that the first respondent has been in possession of item 1 from 1942-1943 and had acquired title by prescription and that the sale in favour of the appellant under Exhibit A-3 was fraudulent. On these findings, the trial Court dismissed the suit regarding both the items. On appeal, the learned District Judge agreed with the trial Court regarding the voidable nature of Exhibit A-1 relying upon the decision in Ravakkal Vs. Subbanna (1893) I.L.R. 16 Mad. 84 . and Sivagnana Thevar Vs. U. Thevar, AIR 1961 Madras 356 . and found that it was invalid; but differed from the trial Court regarding the nature of Exhibit A-3 and found that it was not a fraudulent sale. He, therefore, granted a decree only for suit item 2 with damages. He did not consider the question whether Exhibit A-1 was not acted upon and whether the first respondent had acquired title to item 1 by prescription.