ELAVARTHI VENKATANARASIMHARAJU Vs. MSIDDHA CHETTY

JUDGEMENT

(1.) A number of questions, some of them by no means free from doubt or difficulty, have been raised in the course of the arguments in this second appeal. I propose to refer to most of them, but it seems to me sufficient for the purpose of the decision of this second appeal to express a final opinion upon only some of them. The other questions I prefer to leave open, because the scheme of the Estates Land Act in relation to claims preferred on the analogy of Order 21, Rule 58, Civil Procedure Code, is very obscure.

(2.) The properties in suit are ryoti lands situate in a proprietary village, and in 1904, the tenancy right in them belonged to one Ragaviah and his son Muthuswamy Aiyah. These two persons had executed a mortgage Ex. A, in favour of the first plaintiff's father on the security of these lands. Muthuswamy Aiyah died in 1911 leaving a widow Guruvamma. Raghaviah died in 1914 and this case has proceeded on the footing that all the lands passed by survivorship to Raghaviah on Muthuswamy Aiyah's death. It is stated that Raghaviah left a will whereby he bequeathed the suit properties to his daughter Subbamma but that will has not been produced. We however find that in about a month after Raghaviah's death, there was an arrangement between Guruvamma and Subbamima (by Exs. D and E) whereby Guruvamma was given 10 1/2 guntas of land and the rest was taken by Subbamma. It is not clear whether this was only a notional division or whether there was a physical separation of the properties taken by them respectively. The evidence however shows that in the village accounts the whole land had been recorded as in the possession of Guruvamma and the lower appellate Court has accepted the suggestion made on behalf of the defendants that the patta for the whole land stood in Guruvamma's name.

(3.) It is clear from Ex. IT that the proprietor knew that Subbamma was the legal representative of Raghaviah. Whether he knew his alleged will or not, it is not clear. I therefore see no reason to think that in the matter of the registry of the lands in Guruvamma's name the landlord must have acted in ignorance of Subbamma's right; nor do I see any reason to suspect any fraudulent intention on his part. For all that appears in the evidence, Subbamma and Guruvamma and one Nageswara Aiyah, a brother of Guruvamma, seem to have lived together and lived so amicably down to the end that at her death Subbamma bequeathed all her properties to this Nageswara Aiyah. The probabilities therefore are that Nageswara Aiyah was looking after the properties on behalf of both Guruvamma and Subbamma and that as for some reason the properties had been entered in Guruvamma's name in the village registers, nobody had any objection to its so continuing. It is significant that even after Nageswara Aiyah got the properties under Subbamma's will he took no steps to obtain the registry of that portion of the property in his name. On the other hand, when about a year after Subbamma's death, both Guruvamma and Nageswara Aiyah joined in selling all the properties under Ex. K they accepted their liability for the decree passed under Ex. II and also for the arrears of rent which afterwards came to be covered by the decree Ex. II-A. I have therefore come to the conclusion that the lands must have been entered in Guruvamma's name and patta issued in her name in respect of the whole extent that belonged to Raghaviah with the knowledge and in all probability with the consent of Subbamma and Nageswara Aiyah.