AYYASWAMI IYER Vs. MAHADEVA IYER

JUDGEMENT

(1.) The appellant is the 1 defendant in a suit brought by the plaintiffs as reversionary heirs of one Gurunatha Iyer impleading numerous other defendants who have not appealed. The plaintiffs claimed to be the reversioners and this fact was disputed by the defendants but they only put plaintiffs to proof of it. P.W. Nos. 1 to 7 have all given evidence on the point and their evidence has been believed by the learned Subordinate Judge. Certain criticisms have been put forward in this Court which contain nothing of sufficient importance as to discredit the testimony of the witnesses who have been believed by the trial Judge who had the opportunity of seeing and hearing them give their evidence. It is also significant that defendants Nos. 1 to 3 were not prepared to go into the witness-box and swear that the plaintiffs were not members of their family, a fact which must be within their knowledge. We must, therefore, accept the finding that the plaintiffs are reversioners.

(2.) The second finding of fact relates to the question of who was the last male holder. The plaintiffs say that Gurunatha Ayyar was the last male holder but the defendants contend that he predeceased his father, Chidambaram Iyer who was the last male holder. The evidence is all on one side, namely that of P.W. Nos. 2, 4, 5 and 7 which is unrebutted by any evidence for the defendants. That evidence is also supported by some prior proceedings in Court where the question had been raised. The learned Subordinate Judge has believed these witnesses and we see no reason to differ from his conclusion.

(3.) The plaintiffs case was that Gomathi Ammal, the widow of Gurunatha Iyer came into possession of her husband's property and surrendered the appeal items to her sister-in-law Kamakshi Ammal, and that there was no necessity for that sur-sender and, consequently the plaintiffs are entitled to recover the properties now. The defendants first of all took the plea that Gurunatha Iyer was not the last male holder but Kamakshi's father Chidambaram Iyer from whom she, Kamakshi, inherited the property. In setting out their case in the written statement the plea that Chidambaram Iyer was the last male holder, comes first and then we come to para. 11; "In the face of it, it is absurd to state in para 11 of the plaint that Gomathi Ammal surrendered some of the properties to Kamakshi Ammal. There was no necessity for such a surrender either". Thus ends their first plea. Paragraph 12 runs: "Even if it should be proved that Gurunatha Iyer died after Chidambaram Iyer, inasmuch as the surrender was made to Subbalakshimi Ammal in the interest of her daughter Kamakshi Ammal and her heirs according to the arrangement made by the dayadis with their full consent and as the same has been admitted by the plaintiff and others that arrangement is binding on them. This paragraph is clear admission that if it should be proved as has been done, that Gurunatha Iyer died after Chidambaram Iyer there was a surrender by Gomathi Ammal as was also pleaded by the plaintiffs but not in precisely the same form, for they alleged that the surrender was direct to Kamakshi Ammal whereas the defendants say that it was to Subbalakshimi Ammal on Kamakshi's behalf. On this plea it is incumbent on the defendants to show that the surrender was valid surrender; and their mere statement that the surrender was valid according to the arrangement made by the dayadis does not constitute a part of their admission that there was a surrender but is a plea that even if there was a surrender that surrender was a valid surrender. It is, therefore, incumbent on the defendants to prove the validity of the surrender by the widow of portion of the husband's estate. No attempt whatever has been made to prove this. Therefore, no question of adverse possession by the alienees can arise in this suit and that is apparently the reason why that question was not raised in the lower Court.