ANANTHA PILLAI Vs. RATHNASABAPATHY MUDALIAR AND ORS.

JUDGEMENT

(1.) ONE Chockalinga Mudaliar had no sons but had two daughters by names Janaki Ammal, wife of the first defendant, whose son is the 2nd defendant, and Kuppammal, the 3rd defendant, whose husband is the 4th defendant. This Chockalinga Mudaliar on 15th May, 1933, executed a will bequeathing all his properties to his two daughters who were minors on that date, though Janaki Ammal was married. Under the terms of the will be authorised the 1st defendant, the husband of Janaki Ammal, to manage the properties and put Kuppammal in possession of her share of the properties on her attaining majority. On 20th December, 1933, the suit properties were purchased under Exhibit B -l in the name of Janaki Ammal and Kuppammal. On 30th June, 1937, Janaki Ammal executed a power -of -attorney in favour of her husband, the first defendant (Exhibit A -18). On 24th June, 1947 the first defendant executed an agreement, Exhibit A -1, in favour of the 5th defendant, who is the brother of the plaintiff, for selling the properties in the villages of Ozhundiampattu and Raya Oddai belonging to Janaki Ammal and Kuppammal for a consideration of Rs. 7,500 and received an advance of Rs. 2,000. On 6th September, 1947, the first defendant received a further sum of Rs. 1,000, and on 8th March, 1948 he received another sum of Rs. 1,000 making a total of Rs. 4,000 as advance pursuant to the agreement, dated 24th June, 1947. Kuppammal instituted O.S. No. 42 of 1954 on the file of the District Court, Cuddalore, which was transferred to and disposed of as O.S. No. 53 of 1956 on the file of the Court of the Subordinate Judge of Cuddalore, for partition of her one -half share in the suit properties as well as the other properties belonging to both the sisters. In that suit the plaintiff herein and the 5th defendant were impleaded as defendants 9 and 8 and they filed a written statement which has been marked as Exhibit A -16 in the present case. That suit for partition was decreed and in that decree items 14 to 24 of the suit properties were allotted to the share of Kuppammal. Subsequent to the decree in that suit on 1st January, 1957 in E.P. R. No. 135 of 1956 in O.S. No. 53 of 1956 delivery of items 14 to 24 in favour of Kuppammal was recorded. Further an unregistered lease deed, dated 4th February, 1957 was also executed by the plaintiff in favour of Kuppammnl. Subsequently on the ground that the plaintiff had committed default in payment of rents C.R.P. No. 11 of 1959 was filed on the file of the Revenue Divisional Officer, and O.S. No. 474 of 1959 on the file of the District Munsifs Court, Tindivanam, was instituted for the recovery of arrears of rent. It must be pointed out that in 1955 Janaki Ammal died, and at that time O.S. No. 52 of 1954 was pending. After the death of Tanaki Ammal the first defendant and 2nd defendant were recognised as the legal representatives of Janaki Ammal and Were brought on record as parties to that suit. It is under these circumstances O.S. No. 112 of 1961 was instituted on the file of the Court of the Subordinate Judge of Cuddalore by the plaintiff for declaration of his title in respect of the suit properties, which constitute 24 items and for permanent injunction restraining defendants 1 to 4 from interfering with his possession and for declaration that the decree in O.S. No. 53 of 1956 on the file of the Court of the Subordinate Judge of Cuddalore was not binding on the plaintiff and for setting aside the decree. The plaintiff impleaded his father as the 6th defendant in the suit by putting forward the contention that, though Exhibit A -1 was executed in favour of the brother of the plaintiff, namely, the 5th defendant, it was really for the benefit of the joint family consisting of the 6th defendant, the father, and the plaintiff and the 5th defendant, the two sons, and therefore it was their right to the suit properties that was sought to be declared in the suit.

(2.) IN the plaint, the plaintiff put forward the contention that the first defendant Was the executor of the will of Chockalingam Mudaliar and he was also the guardian of Kuppammal, and Exhibit A -1 was executed by the first defendant in his capacity as the executor of the will of Chockalingam Mudaliar and as the power -of -attorney agent of Janaki Ammal and therefore that agreement was binding on both Janaki Ammal and Kuppammal. His further case was that ever since the date of Exhibit A -1, namely, 24th June, 1947 the plaintiff and the 5th defendant had been in possession of the suit properties and therefore they have perfected their title to the suit properties by adverse possession and consequently they are entitled to a declaration of their title to the suit properties. The further case of the plaintiff Was that his title has become perfect under Section 53 -A of the Transfer of Property Act, since they have paid a sum of Rs. 4,000 pursuant to Exhibit A -1 and also have been put in possession of the suit properties pursuant to the said agreement. The plaintiff stated that he was not aware of the decree in O.S. No. 53 of 1956, that during the pendency of the suit the first defendant approached the plaintiff and the 5th defendant and obtained their signatures on blank papers and assured them that he would look after their interest in the suit and if necessary he would file written statements on their behalf and have their rights defended. It is only subsequently when the suit for the recovery of arrears of rent was filed they came to know that the first defendant fraudulently connived at passing of a decree for partition in favour of Kuppammal and therefore the decree in O.S. No. 53 of 1956 was not binding on the plaintiff or the 5th defendant. It may be noticed that the plaintiff claimed title to items 1 to 24 of the suit properties notwithstanding the fact that items 14 to 24 were allotted to the share of Kuppammal in the partition decree in O.S. No. 53 of 1956 and the plaintiff had surrendered possession of those items to Kuppammal on 1st January, 1957 and executed a lease chit in her favour of 4th February, 1957.

(3.) THE first defendant filed a Written statement resisting the claim of the plaintiff. He stated that he did not execute Exhibit A -1 either as executor under the will of Chockalinga Mudaliar or as power -of -attorney of Janaki Ammal. Though he admitted the execution of Exhibit A -1 and the receipt of a sum of Rs. 4,000 he contended that the rights of the 5th defendant under Exhibit A -1 was contingent upon the 1st defendant obtaining the sanction of the District Court for selling the properties of Kuppammal, who was a minor and whose Court guardian the first defendant was, and as soon as the Court refused to grant the sanction, the entire agreement fell through. He also denied the allegation of the plaintiff that in O.S. No. 53 of 1956, he obtained the signatures of the 5th defendant and the plaintiff on blank papers and used them for filing the written statements on their behalf. The first defendant's case was that the plaintiff and the 5th defendant filed their own written statements in O.S. No. 53 of 1956, but remained ex parte, and allowed the decree for partition to be passed in the said suit. However, the first defendant died during the pendency of the suit.