ARUMUGHA THEVAR Vs. MELAVASAGA THEVAR

JUDGEMENT

(1.) THE plaintiff is the appellant. Ha filed suit O.S. No. 7/75 before the District Munsif, Tenkasi, for declaration that the plaint schedule property belonged to his vendor Balammal alone, for recovery of possession from the respondents for future mesne profits at Rs. 3/-per month from the date of plaint till delivery of possession and for costs on the following averments: THE suit property belonged to one Pethachi THEvar, who purchased the same under a registered sale deed (Ex. b-1) on 29.1.1941 for Rs. 200/-. He was in "ossession and enjoyment of the suit property till his death in 1952. On his death, his wife Muthathal @ Balammal and his son Maruthupandi became entitled to the suit property. Maruthupandi died and Balammal was in enjoyment of the suit property absolutely. She incurred debt and for discharging the debt, she executed a mortgage in favour of her sister-in- law one Nagammal and Nagammal insisted on the first respondent, the brother-in-law of Balammal, also to join in the execution of the mortgage deed. THE mortgage was discharged by Balammal. THE first respondent attempted to claim title to the suit property by trying to take advantage of the joint execution of the mortgage deed. Balammal alone was entitled to the suit property and she was enjoying the same. She left for Thirupudaimarudhur to stay with her sister and since the first respondent represented that he would take care of the property and pay a rent of Rs. 3/- per month, she left the house to the first respondent in 1971. THE first respondent was only a tenant. Balammal executed a sale deed for Rs. 900/- on 21.5.1974 (Ex. A-1) in favour of the appellant. THE appellant thus became entitled to the suit property. THE first respondent knew about the sale and he represented that he would vacate and surrender possession of the suit property within three months thereafter, but he never vacated. THE appellant caused a notice to be issued on 28.9.1974 under the original of Ex. A-6 dated 28.9.1974, which provoked a reply from the first respondent claiming title through an oral partition in 1960. He also alleged that he has executed a gift deed in favour of his wife, who in turn had sold the property to respondents 2 and 3. THE transactions were all fraudulent and they were not binding on the appellant. THE alleged partition was also false. THE suit property was the self-acquired property of the appellant's vendor's husband Pethachi THEvar. THE respondent had no manner of title in the suit property. THE suit was therefore necessitated.

(2.) THE suit was resisted by the respondents contending inter alia as follows: THE suit property originally belonged to the first respondent and his paternal uncle Periasamy THEvar and his son Esakky THEvar. THEre were debts and the suit property was therefore sold in favour of one Subbiah THEvar, the husband of the first respondent's sister Nagammal. Later, the first respondent and his brother Pethachi THEvar purchased other properties from the common fund in the name of Pethachi THEvar as the first respondent had died. After the death of Pethachi THEvar, the above properties were jointly enjoyed by the heirs of Pethachi THEvar and the first respondent. THE first respondent and Pethachi THEvar's widow Balammal for herself and her minor son Karuthapandi executed a mortgage in favour of Nagammal, the sister of Pethachi THEvar and the first respondent for Rs. 400/-on 16.11.1953 under the original of Ex. B-2. THE appellant was estopped from contending that the suit property only belonged to Pethachi THEvar and not to the first respondent. THE averments in the plaint that the first respondent also joined in the execution of the mortgage under the original of Ex. B-2 because the mortgage insisted on his joining was also false. THE mortgagee assigned the mortgage to one Esakki THEvar on 2.3.1973. Esakki THEvar had not been made a party and the suit was therefore bad non-joinder of parties. In an oral partition in 1960 the suit property fell to the share of the first respondent and from the date of the partition the first respondent was alone in possession and enjoyment of the suit property continuously without any interruption and to the knowledge of Balammal and he perfected title by adverse possession. He also transferred the house to his name in the panchayat register and he was paying tax. He executed a gift deed in favour of his wife Lakshmi under Ex. B-32 on 5.1.1973 and Lakshmi executed a sale deed in favour of respondents 2 and 3 under Ex. B-33 on 12.2.1973. THE allegations that the suit property was leased out to the first respondent on a monthly rent of Rs. 3/- was also false. THE other averments in the plaint were all false. Balammal had no right to execute a sale deed in respect of the suit property in favour of the appellant and the said sale was fraudulent and without consideration. THE appellant was not entitled to any relief.

(3.) IN support of his submissions, the learned Counsel relied on decision of this Court, the Kerala High Court and the Supreme Court.