GOVINDARAJA NAIDU Vs. MEENATCHI SUNDARAM

JUDGEMENT

(1.) UNDER Section 100 Civil Procedure Code, the scope of interference is very limited. However, when both the Courts below have declared the title in favour of a person on the basis inter alia of a sale deed executed by a person, who had no authority to do so; and a Will which is not proved by examining the attesting witnesses; then the matter will have to be examined with great care and caution.

(2.) THE first respondent herein filed the suit for declaration of his title and for possession of the property. The first respondent claims his title from the legal heirs of one Balaguru Chettiar. Balaguru chettiar is the son of one Govindasamy Chettiar. The father of the second appellant viz. , Kaliaperumal is the brother of Govindasamy Chettiar. The property originally belonged to one Sowriraja Chettiar, who died in 1941. His wife Krishnammal died in 1977 issueless. Sowriraja Chettiar executed a Will dated 22. 07. 1934, Ex. A11, bequeathing his properties including the suit property in favour of Balaguru Chettiar. The Will was notarised in accordance with French law and the same is not in dispute. Balaguru Chettiar died in 1983 leaving behind him his surviving heirs, his wife Rukmani Ammal, son Aravindan and daughter Usha Krishnan. According to the plaintiff, these three heirs of Balaguru Chettiar appointed one Janakalakshmi as their power of attorney agent for selling the properties of Balaguru Chettiar and the said power agent executed Ex. A1 sale deed dated 22. 12. 1986 in favour of the plaintiff. The narration of events in the plaint shows that the sale deed dated 22. 12. 1986 was full of errors and therefore, many rectification deeds had to be executed. Initially, it was found that while tracing the title of the property, it was mentioned that the property had been bequeathed to Aravindan under a Will executed by Krishnammal, wife of Sowriraja Chettiar. It was discovered that this was a mistake because the property had actually devolved on Balaguru Chettiar under Ex. A11 Will. Therefore, a rectification deed was executed on 16. 05. 1988 by the said power agent in favour of the plaintiff. Thereafter, it was discovered that there was a mistake of fact by mentioning that the property had devolved on Aravindan on the death of his father Balaguru Chettiar instead of stating that the property had devolved on all the three legal heirs. Therefore, another rectification deed was executed on 19. 04. 1991, by which it is alleged that the other legal heirs had acknowledged the right, title and interest of the plaintiff. Therefore, according to the plaintiff, by virtue of the sale deed dated 22. 12. 1986, Ex. A1 and the rectification deeds, Exs. A2 and A3, he had obtained a valid title. It is stated in the plaint that since Thayarammal, the second defendant, was closely related to Sowriraja Chettiar, she was permitted to occupy the property and when she was called upon to vacate the suit property by the legal notice dated 30. 11. 1987, she sent a reply raising untenable grounds and hence, the suit was filed.

(3.) THE appellants denied the title of the respondent. According to them, they are in possession of the back portion of R. S. No. 121/310. It was specifically stated that the derivation of title through the alleged power of attorney is not correct and therefore, Ex. A1 is not valid. In paragraph 5, it was stated that the so called power agent who executed Ex. A1 in fact did not have any power and the respondent/plaintiff was called upon to produce the alleged power of attorney said to have been executed by the said Aravindan. It is also claimed inter alia that on the death of Sowriraja Chettiar, the property had reverted to his brother Kaliaperumal and therefore, Kaliaperumal became the legal heir entitled to the estate of the deceased Sowriraja Chettiar and thereafter the second defendant, who is the daughter of Kaliaperumal, was in possession of the suit property as absolute owner. Sowriraja Chettiar's Will was also denied. It was also specifically stated that the document of consent cannot convey any title, especially when there is nothing to show that consideration passed under the same. The documents filed by the respondent/plaintiff to show possession were all attacked on the ground that they were subsequent to the legal notice. A mention was made in the written statement about the recital in the plaintiff's document to a Will said to have been executed by Balaguru Chettiar on 10. 5. 1983. The suit was also resisted on the ground of limitation. A reply statement was filed by the respondent, in which, apart from stating that the consent deed was validly conveyed title, the attack on the power of attorney deed and the lack of capacity of the power of attorney agent to convey title had not been met.