VANAMAMALAI THEVAR Vs. NARAYANA PILLAI

JUDGEMENT

(1.) This Second Appeal has been filed by defendants 1, 3 and 4 and arises out of a suit for recovery of possession of the plaint schedule properties with future mesne profits from the date of suit. Defendants 3 and 4 are wife and son of the first defendant and have been added subsequent to the institution of the suit, the fourth defendant being a minor represented by his mother as guardian ad litem. The plaintiff Sivagami Ammal was the wife of one Arunachalam Pillai, to whom the suit properties admittedly belonged. The and defendant in the suit was impleaded as the santhathi or son of the plaintiff and the said Arunachalam Pillai. It was the plaintiff's case that Arunachalam Pillai who was leading a wayward life and dissipating his properties, at the request of the plaintiff and others interested in the couple, executed a settlement deed on 31st March, 1925, whereunder the suit properties were settled on hereself and her husband for their lifetime to be enjoyed jointly. The properties have to pass on. to their issues on the death of the survivor of them. The settlement deed generally prohibits alienations by the husband and Wife, alienation being permitted, if necessary only by both the husband and wife jointly. The settlement is evidenced by the registration copy, Exhibit A-2. Defendants 1, 3 and 4 were impleaded as alienees from the husband, the alienations having been made in contravention of the terms of the settlement deed. Arunachalam Pillai, the plaintiff's husband, died on 9th February, 1957. Alleging that the first defendant was interfering with the plaintiff's enjoyment of the suit properties on the strength of the alienations made by the deceased Arunachalam Pillai, the suit was instituted on and January, 1961. The plaintiff averred that the transfers by the deceased were not binding on her and that she became entitled to the exclusive possession of the suit properties for her life on the death of her husband, her son, the and defendant, to succeed to the properties as the vested remainderman after her. In defence Inter alia defendants 1, 3 and 4 contended that the settlement deed was a sham and nominal transaction executed with the sole object of screening the properties from creditors and it was never intended to take effect. These defendants pleaded that shortly after the settlement, the plaintiff eloped with one Sangu Thevar, the power-of-attorney agent of the plaintiff in the present Court proceedings, and that thereupon Arunachalam Pillai on 29th April, 1925, by a registered deed duly cancelled the original settlement he had duly made. The deed of cancellation is evidenced by Exhibit B-1. It was further pleaded in defence that Arunachala Pillai himself continued in possession of the properties in his own right and that possession had passed from him to his transferees on transfer and that thus, the plaintiff's claim was barred by adverse possession. There was a plea that some of the suit properties were not in their possession and that they had no interest whatsoever in those particular items. There was also a plea that the third defendant was not a necessary party to the action, as her interest and right in a half share in items 13 and 16 of the suit properties was derived from Murugayya, the elder brother's son of the deceased Arunachala Pillai to whom that share had been allotted in their family partition. These defendants further plead that the 2nd defendant was not the son of Arunachalam Pillai as long before his birth the plaintiff had deserted .Arunachalam Pillai and that the and defendant was not a santhathi of Arunachalam Pillai and the plaintiff. It was therefore said that the second defendant was an unnecessary party to the suit. The trial Court found for the contesting defendants and held that the settlement deed was only a sham and nominal transaction, which was not given effect to by Arunachalam Pillai and that plaintiff had at no time any enjoyment of the suit property. The issue as to the legitimacy of the second defendant was left open, it being remarked that the learned Counsel for the first defendant had conceded that the question need not be gone into in the suit. The 2nd defendant, in the circumstances, was deemed to be an unnecessary party to the suit by the trial Court. The title and right to possession of the contesting defendants being found, the plaintiff's suit was dismissed with costs.

(2.) The plaintiff preferred the Appeal A.S. No. 100 of 1962, from this decision reiterating her claims arid contentions. Pending the appeal the plaintiff, Sivagami Ammal died on 15th February, 1962, intestate leaving her surviving as her only issue and son, the 2nd defendant in the suit. The 2nd defendant had been impleaded in the appeal as the second respondent and by LA. No. 85 of 1962 he applied to be transposed as the second appellant in the appeal in his character as the legal representative of the deceased Sivagami Ammal that he may proceed with and prosecute the appeal further. In the affidavit in support of the application, it was stated that the right to sue and the right to carry on the appeal survived in him as the only heir of the deceased Sivagami Ammal and that he was therefore, entitled to be transposed as the second appellant and legal representative of the deceased. There was no objection to the 2nd defendant--2nd respondent in the appeal being transposed as. the second appellant for the purpose of further prosecution of the appeal. In the counter-affidavit filed, it was specifically stated that the respondents (the contesting defendants in the suit) had no objection to have the second defendant regarded as the legal representative of the deceased, as the son of his mother, Sivagami Ammal. Only they did not admit that he was the son of Arunachalam Pillai. They questioned this claim that Arunachalam Pillai was his father. The contesting respondents in the appeal were not only willing but had no objection to the appeal being further prosecuted by the 2nd defendant in the suit as the legal representative of the deceased plaintiff. The application was therefore ordered and the appeal was continued with the son of Sivagami Ammal as the 2nd appellant. No question was raised at any stage of the proceedings in the lower appellate Court that the cause of action did not survive to the son of the deceased. The averment in the affidavit of the 2nd defendant that the cause of action survived to him and that he could further prosecute the appeal was not traversed. In the circumstances when the appeal was taken up for hearing, the question that the learned Subordinate Judge posed before himself for consideration was, whether the settlement deed had taken effect and if so, whether its cancellation was binding on the plaintiff. On his review of the oral and documentary evidence and on a consideration of the probabilities and the circumstances of the case and rejecting the story of elopement pleaded by the respondents as totally false and unacceptable, he concluded that the settlement was not a sham transaction. He held that the unilateral cancellation of it by the settlor was not valid and would not bind the donee. The very terms of the settlement, deed were opposed to the contention that the settlement was a sham transaction. Some five years after the settlement deed, othi had been executed by the husband and wife jointly and according to the learned Subordinate Judge, this established that the settlement deed had been given effect to and followed by Arunachalam Pillai. The subsequent transaction further established according to the learned Subordinate Judge, that the cancellation deed was not given effect to and had not taken effect. The finding as to the reality of the settlement is a pure question of fact in the circumstances of this case, ,and nothing has been made out for upsetting the finding. The learned Subordinate judge also examined the plea of adverse possession put forward for the contesting defendants and found against the plea. Alienations in favour of defendants 1, 3 and 4 were all within 12 years prior to suit and according to the learned Subordinate Judge it had not been established that the possession of Arunachalam Pillai prior to the alienation was adverse to his tenant-in-common, that is the plaintiff. Under the settlement, the husband and wife were tenants-in-common, of the settled properties.. Exhibit B-1 the cancellation deed, according to the learned Subordinate Judge, whereunder the husband purported to revoke the settlement, had not been given effect to. Subsequent to the settlement deed about five years after, the husband and wife had joined together and executed othis of the settlement properties. Reliance was placed before me on behalf of the contesting defendants on Exhibit B-5 and 6-25 for making out the case of adverse possession of the properties by Arunachalam Pillai. Under Exhibit 5 there was no transference of possession by Arunachalam Pillai. The document is a further mortgage and refers to the earlier possessory mortgage, Exhibit B-4, dated 13th) August;, 1930, jointly executed by the plaintiff Arunachalam Pillai. The mortgagee had entered into possession of the property under Exhibit B-4 from both the tenants-in-common and his lawful possession cannot become adverse by his merely taking a subsequent possessory mortgage of the same property from one of the tenants-in-common, purporting to be the exclusive owner of the properties. Rightly, no weight has been given to this document by the lower appellate Court : as in any way making out the defendants' case of adverse possession of Arunachalam Pillai against his wife. The document Exhibit 35 too has no relevance on the question of adverse possession. It is a registration copy of the will executed by the plaintiff's own father of his properties. There, the father refers the fact of his daughter living separately from her husband, as a reason for his making provisions for her by the will. It certainly is not any evidence that Arunachalam Pillai was holding the properties in the year 1938 adverse to his wife. He was a tenant-in-common with her and had in 1930 joined with her in executing; othi of the properties, thereby recognising the joint rights of both in the properties. The finding as to the adverse possession given by the lower appellate Court cannot therefore be impugned in this Court within the limits of a Second Appeal. There was ample and substantial material for the learned Subordinate Judge to arrive at the conclusion as he has done and the strenuous arguments of Mr. R. Rajagopala Aiyar,, learned Counsel for the appellants before me, do not make out that these findings of fact are in any way vitiatec and open for reconsideration in Second Appeal.

(3.) The learned Subordinate Judge even as the trial Court did, left the question of the legitimacy of the and defendant open in the trial Court; he observed that the question of the 2nd defendant's legitimacy was not relevant for the purpose of the suit. Neither of the parties had claimed an adjudication on this question. In result on the finding that the settlement had taken effect and that there had been no valid cancellation of it, the learned Subordinate Judge set aside the decree of the trial Court and decreed the suit for possession of the plaint schedule properties. As the learned Subordinate Judge had accepted the case of the third defendant of her claim to a half share of items 15 and 16, her share in those items was exonerated from the suit. He directed mesne profits in respect of the properties decreed, to be ascertained by separate proceedings under Order 20, Rule 12, Civil Procedure Code.