This Appeal Suit has been filed under Section 96 of the Code of Civil Procedure, by the plaintiffs in Original Suit No.146 of 1988, aggrieved by the Judgment and decree of the learned Sub Judge, Thanjavur, dated 27.01.1992, dismissing the Original Suit.
2.Original Suit No.146 of 1988 had been filed seeking partition and separate possession of 8/21st share in the suit property. C.M.P(MD)No.3864 of 2017 has been filed by the appellants under Order 41, Rule 27 of the Code of Civil Procedure to file as an additional document, a sale deed dated 15.07.1944 and registered as Document No.2132/1944. C.M.P(MD)No.4160 of 2017 has been filed by the respondents 4 and 5 in the appeal under Order 41, Rule 27 of the Code of Civil Procedure, seeking to take as additional evidence, a registered Will executed by the deceased first defendant dated 01.11.2004 and her Death Certificate and also Award of the Lok Adalat, Thanjavur in A.S.No.12 of 2013, dated 11.11.2014 passed in pursuance of a memo of compromise, dated 03.11.2014. Permission was also sought to file as additional documents, the plaint and written statement in Original Suit No.155 of 2010, which was also a suit with respect to allied properties, in the Principal Sub Court, Thanjavur and also a notice dated 13.06.1963 from the Survey Department. As it is well settled that applications under Order 41, Rule 27 of the Code of Civil Procedure, have to be heard along with the main appeal, Common Order is passed in the above Civil Miscellaneous Petitions as well as Judgment in this Appeal Suit.
3.Original Suit No.146 of 1988, as stated above, has been filed by the plaintiffs for partition and separate possession of their undivided 8/21st share in the suit property. The suit property is measuring 2.91 acres in patta No.146, Punja Survey No.207/2, Pillaiyarpatti Village, Thanjavur Taluk, Vallam Sub-Registry, Thanjavur Registration District.
4.According to the plaintiffs, the suit property was the ancestral property of Thangavel Oorthiyar. Thangavel Oorthiyar died in the year 1972. He had three wives. They pre-deceased him. He did not have any issue through his first wife Rethinathammal. He married for a second time, a lady called, Subhammal. Through her, he had two daughters and one son. The first daughter Kamu @ Kamakshi was the second defendant in the suit. The second daughter Saidambal was the third defendant in the suit. His son Rethinasami died prior to institution of the suit and consequently, his widow Amsavalli was shown as first defendant in the suit. Thangavel Oorthiyar also had a third wife Sornathammal. Through her, he had one son and three daughters. The son was called Palanimanickam and died in the year 1983. The plaintiffs are the wife Pattu and children of Palanimanickam and Pattu. There was yet another son by name Kootharasan, who was shown as the ninth defendant. There were also three other daughters, who did not join with the plaintiffs and they were Pushpam, shown as the sixth defendant, Selvam shown as the seventh defendant and Pattu shown as the eighth defendant.
5.According to the plaintiffs, since the property was the ancestral property of Thangavel Oorthiyar, during his life time and since in the year 1972, when he died, the male members alone were co-parceners to the joint Hindu family property, Thangavel Oorthiyar was entitled to an undivided 1/3rd share and his two other sons, namely, Rethinasami through his second wife Subhammal and husband of the first defendant Amsavalli was entitled to another 1/3rd share and Palanimanickam, the husband of the first plaintiff and father of the other plaintiffs and defendants 6, 7, 8 and 9, was entitled to the remaining undivided 1/3rd share. On the death of Thangavel Oorthiyar, it is claimed that his 1/3rd share further devolved on all his children equally. He had seven children and consequently the branch of the plaintiffs was entitled to 1/7th undivided share and therefore the plaintiffs claimed undivided 8/21st share along with the ninth defendant. For some strange reason, though they had impleaded defendants 6, 7 and 8 as parties, the plaintiffs did not recognise that they had any share in the suit property. It is, under these circumstances, further claiming that demand for partition had been denied, the suit seeking partition and separate possession of the suit property to an extent of undivided 8/21st share had been filed. The plaintiffs further claimed that as co-owners/co-parceners, they can pay Court Fees under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1956 and accordingly, paid the fixed Court fees, while instituting the suit.
6.In the written statement, the defendants 8 and 9 also claimed a share in the joint property and individually claimed 1/21st share and 8/21st share respectively. The eighth defendant also paid one-half of Court fees, seeking partition and separate possession.
7.The claim of the plaintiffs was mainly contested by the fourth defendant. The defendants 1 and 5 filed Memos supporting the case of the fourth defendant. In the written statement filed by the fourth defendant, an entirely new case had been put up and it had been stated that the plaintiffs are not entitled to any share in the suit property. On the other hand, the fourth defendant claimed exclusive title to the suit property. According to the fourth defendant, the property was originally belonging to one Sangilimuthu Sozhagar. He had a sister, Rethinathammal. Thangavel Oorthiyar, from whom, the plaintiffs traced title, married the said Rethinathammal. He did not have any children through her. He thereafter married the daughter of Sangilimuthu Sozhagar, namely, Subhammal, as his second wife and another daughter Sornathammal as his third wife. That was also mentioned by the plaintiffs in their plaint.
8.Further, the fourth defendant mentioned an additional fact, which was not mentioned in the plaint. This was that Sangilimuthu Sozhagar also had a son, by name, Marimuthu Sozhagar. Marimuthu Sozhagar married the daughter of Subhammal, the second wife of Thangavel Oorthiyar. This daughter was called as Saidambal, who was the third defendant in the suit. The fourth defendant, Govindarajan, is the son of Marimuthu Sozhagar and Saidambal. According to him, the property which is the subject matter of the suit and appeal, was not the individual property of Thangavel Oorthiyar. On the other hand, he claimed that it was a part of very large estate owned by Sangilimuthu Sozhagar. Sangilimuthu Sozhagar died in 1923 leaving behind him, two wives, Lakshmayee and Panjalaiammal. His son Marimuthu Sozhagar was an infant. Consequently, the two widows, Lakshmayee and Panjalaiammal constituted Thangavel Oorthiyar, who was their son-in-law having married the daughter of Subhammal, as the power of attorney agent of Marimuthu Sozhagar. Acting in his capacity as power of attorney agent and at the same time without having any individual income, but blessed with the position of a son-in-law residing in his father-in-law's house, Thangavel Oorthiyar dealt with the properties of Sangilimuthu Sozhagar and created sale deeds and reconveyance deeds. This property was similarly sold to his friend Kanjamalai Udayar and on the death of Kanjamalai Udayar, had been re-conveyed to Thangavel Oorthiyar by the widow of Kanjamalai Udayar. Consequently, the fourth defendant claimed that Thangavel Oorthiyar did not have individual right over the suit property and the suit property should devolve only on Marimuthu Sozhagar and thereafter to the fourth defendant. In such circumstances, the fourth defendant denied the claim of the plaintiffs and disputed their claim for partition and separate possession and in effect, sought dismissal of the suit. He also claimed the payment of Court fees under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1956, was not legally permissible and also claimed that the plaintiffs should be called upon to pay the Court fees on the market value.
9.On the basis of their rival pleadings, the learned Sub Judge, Thanjavur, framed the following issues for trial:
(i)Whether the suit property is the ancestral property of deceased Thangavel Oorthiyar?
(ii)Whether the suit property had been purchased by Thangavel Oorthiyar acting as power of attorney agent of Lakshmayee, Panjalaiammal and Marimuthu Sozhagar?
(iii)Whether the suit property is the exclusive property of the fourth defendant?
(iv)Whether the fourth defendant has perfected title through adverse possession?
(v)Whether the sale effected by the fourth defendant in favour of the fifth defendant is bona fide in nature?
(vi)Whether the plaintiffs and the ninth defendant are entitled to partition and separate possession in the suit property?
(vii)Whether the plaintiffs had paid proper Court fees by instituting the suit?
(viii)To what relief, all the plaintiffs are entitled to?
10.The parties to the litigation were invited to participate in trial proceedings by adducing oral and documentary evidence. Accordingly, the plaintiffs examined the third plaintiff, Murugan as P.W.1 and marked Exs.A.1 to A.9 documents. Ex.A.1 is a sale deed dated 27.05.1938 with respect to the suit property in favour of Thangavel Oorthiyar executed by the widow of Kanjamalai Udayar, namely, Kasiammal for herself and on behalf of her minor son. Exs.A.2 to A.7 are kist receipts in the name of Thangavel Oorthiyar and Palanimanickam for Fasli 1391, 1389, 1388, 1387, 1386 and 1392 respectively. Ex.A.8 dated 30.09.1959 is a sale deed executed by Saidambal, who is the third defendant, for herself and on behalf of her minor son Govindarajan, who is the fourth defendant, in favour of Sornathammal. Ex.A.9 dated 13.09.1959 is a similar sale deed executed by Saidambal for herself and on behalf of her minor son Govindarajan, in favour of Rethinasami Oorthiyar, who is the late husband of the first defendant.
11.On behalf of the defendants, the first defendant Amsavalli was examined as D.W.1, the fourth defendant Govindarajan was examined as D.W.2 and an independent person Seenivasan was examined as D.W.3. The defendants marked Exs.B.1 to B.24. Ex.B.1 dated 27.05.1938 is the sale deed, which was already marked as Ex. A.1 in favour of Thangavel Oorthiyar. Ex.B.2 dated 10.05.1930 is a promissory note executed by Kanjamalai Udayar for Rs.255/- (Rupees Two Hundred and Fifty Five only) in favour of Thangavel Oorthiyar. Exs.B.3 to B.6 are documents relating to various encumbrances over the suit property. Ex.B.10 dated 23.07.1923 is the power of attorney given to Thangavel Oorthiyar by Lakshmayeeammal and Panjalaiammal on their behalf and on behalf of the minor son. The other documents are revenue documents in the name of the fourth defendant with respect to the suit property.
12.On consideration of oral and documentary evidence, the learned Sub Judge, Thanjavur, by Judgment dated 27.01.1992, dismissed the suit seeking partition and separate possession. The learned Sub Judge found, on evidence, that Ex.A.1, which is a sale deed in the name of Thangavel Oorthiyar, with respect to the suit property was actually preceded by Ex.B.2 ? Promissory Note. The learned Sub Judge found and held that Ex.B.2 implied that there was an existing debt by Kanjamalai Udayar and the promissory note was executed on 10.05.1930 and since the money could not be repaid, the property was executed by way of a sale deed, which is the suit property. The learned Sub Judge also found that Thangavel Oorthiyar did not have independent source of income. He practically lived off the estate of his father-in-law/brother-in-law, Sangilimuthu Sozhagar. He was also the power of attorney agent of his son-in- law ? Marimuthu Sozhagar, who was also the son of Sangilimuthu Sozhagar.
13.Relying on Exs.B.10 and B.2, the learned Sub Judge held that the property devolved from and out of the estate of Sangilimuthu Sozhagar and consequently, only his son ? Marimuthu Sozhagar can lay claim over the property and thereafter, the son of Marimuthu Sozhagar, namely, the fourth defendant, alone was the exclusive title holder to the suit property. Thus holding, the learned Sub Judge further held that the Court fees paid was deficit and also held that the suit for partition has to be dismissed.
14.Challenging the said Judgment and the findings, the plaintiffs are in appeal.
15.Pending appeal, further developments took place among the parties. This is inevitable, since the suit was of the year 1988, the Judgment was of the year 1992 and the appeal itself was of the year 1993. Between 1993 and 2017, the first appellant who was the first plaintiff ? Pattu, died. Her sons and daughters are already shown as plaintiffs and defendants. Consequently, no further legal representatives are required to be impleaded. However, the fifth appellant, who was the fifth plaintiff ? Singaravadivelu died and his legal representatives were declared to be not known and a Memo was filed in this regard and recorded on 22.02.2010.
16.Among the respondents, the first respondent, who was the first defendant ? Amsavalli died and it was mentioned that there was no legal representative and again, a Memo was recorded on 22.02.2010.
17.The third defendant ? Saidambal also died and her legal representatives apart from the fourth respondent ? Govindarajan were impleaded as the respondents 10 and 11. The ninth respondent also died, but it was also mentioned that he died as a bachelor and consequently, his legal representatives were not available to be impleaded. However, the second respondent who was the second defendant also died and similarly, the sixth respondent, who was the sixth defendant also died and this Court determining that the applications to bring on record the legal representatives of the deceased parties, were hopelessly barred by time and sufficient cause was also not given, dismissed the appeal as abated as against the respondents 2 and 6.
18.This appeal has been mainly contested by the respondents 4 and 5.
19.As stated above, the appellants filed C.M.P(MD)No.3864 of 2017 under Order 41 Rule 27 of the Code of Civil Procedure, seeking to file a sale deed, dated 15.07.1944, as an additional document to be considered in the appeal. Similarly, the respondents 4 and 5 filed C.M.P(MD)No.4160 of 2017, again seeking to file documents which are subsequent to the filing of this appeal as additional documents, to be considered.
20.In this connection, Order 41 Rule 27 of the Code of Civil Procedure, lays down certain stipulations before an additional evidence can be considered by the appellate Court.
21.The primary stipulation is that the party, who seeks to produce the additional documents, must first satisfy the Court as to the reason why they did not produce it before the Trial Court. This is essential, because if the documents had been available during the trial proceedings and had been deliberately withheld, then the litigants or parties contesting the genuinity or admissibility of the documents, would not have had an opportunity to cross-examine the witnesses, who produced the said documents. The truth, veracity and admissibility of the documents, could not have been tested during the trial proceedings. It is for that reason that primarily, the appellant or the respondent has to satisfy the Court the reason why if they had possession of the documents, they did not produce it during trial. In this case, the document mentioned in C.M.P(MD)No.3864 of 2017 is a sale deed dated 15.07.1944, which the appellants herein had not produced during trial. Consequently, the appellants who are the petitioners in the said application must first satisfy the Court the reason why they did not produce it during the trial and why they did not subject their witness along with the document for cross-examination. The reason mentioned in the affidavit was that this sale deed dated 15.07.1944 and registered as Document No.2132 of 1944 had not at all been produced even before their Advocate during trial and they produced the same only before the present Advocate representing them. It is a document dated after Marimuthu Sozhagar attained the age of majority and is a sale deed wherein Thangavel Oorthiyar stood as a witness. According to the appellants, this document would establish the fact that Thangavel Oorthiyar did not act as a power of attorney agent after Marimuthu Sozhagar attained the age of majority.
22.I am not prepared to accept the contention that this document had not been genuinely produced before the trial Court. The appellants were in possession of the said document. They had in their hands the written statement of the fourth defendant, challenging their contention that the suit property was the ancestral property of Thangavel Oorthiyar. When such written statement was staring in the face of the appellants, who were the plaintiffs, they had a duty to produce all necessary documents to dispute the contention of the defendants.
23.It is a very weak reason to say that they omitted to produce certain documents as seen from the Annexure of the Judgment. They had actually produced several kist receipts to show enjoyment by Thangavel Oorthiyar in his individual capacity. When that is the case, I hold that the petitioners have not crossed the first stage stipulated in Order 41, Rule 27 of the Code of Civil Procedure, namely, to convince this Court that they did not produce the documents for reasons beyond their control. I hold that having read the Judgment and the reasoning of the Trial Court, to overcome the points raised in the Judgment and to fill in the gaps, this document has been produced and I find no reason to grant permission to the petitioners in C.M.P(MD)No.3864 of 2017 and consequently, the said petition is liable to be dismissed.
24.Similarly, the respondents 4 and 5 filed C.M.P(MD)No.4160 of 2017 again under Order 41, Rule 27 of the Code of Civil Procedure, seeking to produce several documents. All these documents are subsequent to the filing of the appeal. The first document is a Will executed by the first defendant ? Amsavalli. This Will, without being proved in the manner known to law, cannot improve the case of the respondents. At the most, it is an internal family arrangement. This will not affect the stand of the appellants and the respondents with respect to the nature of the property in the hands of Thangavel Oorthiyar. But, the other documents are, a Memo of Compromise and a Lok Adalat Award and a plaint and written statement and a notice by the Revenue Authorities. These documents again do not touch the issue in the appeal, which was discussed in the suit by the learned Sub Judge, Thanjavur, whether the property, specifically, the suit property was an ancestral property or individual property of Thangavel Oorthiyar. This issue has to be decided on the basis of the documents, which were available at the time Thangavel Oorthiyar was alive and was dealing with the properties. Subsequent developments can never perfect title. If the earlier title is illegal, subsequent documents cannot make such title legal. If the earlier title is legal, mere addition of several other documents, is not essential. Consequently, I also hold that no case has been made out to admit the documents mentioned in C.M.P(MD)No.4160 of 2017 and therefore, the same is liable to be dismissed.
25.This leads us to decide the issues in the appeal on the basis of the documents already filed and adjudicated by the learned Trial Judge.
26.The primary document to be considered while deciding the issue of the holding of the suit property in the hands of Thangavel Oorthiyar is Ex.A.1/Ex.B.1, which is a sale deed in the name of Thangavel Oorthiyar executed by the widow of Kanjamalai Udayar, dated 27.05.1938.
27.The second document necessary for consideration is Ex.B.2, dated 10.05.1930, which is a Promissory Note executed by Kanjamalai Udayar in favour of Thangavel Oorthiyar and it has to be decided whether in lieu of the amount mentioned in the Promissory Note and in stead of paying back the money, Kanjamalai Udayar's widow conveyed the property to Thangavel Oorthiyar.
28.We have to further examine whether originally the property so conveyed by the widow of Kanjamalai Udayar originated from and out of the estate of Sangilimuthu Sozhagar. If that is established, then the consideration for purchase of the suit property in the name of Thangavel Oorthiyar can be held as flowing from the estate of Sangilimuthu Sozhagar. To determine that, the only other document necessary for examination is Ex.B.10, which is the power of attorney, dated 23.07.1923 by the widows of Sangilimuthu Sozhagar appointing Thangavel Oorthiyar as power of attorney agent of themselves and minor son, Marimuthu Sozhagar.
29.Before going in detail with respect to the documentary and oral evidence, a reappraisal of the relationship among the parties would be necessary to appreciate the evidence on the basis of the documents produced. Sangilimuthu Sozhagar is said to have been a large land owner in and around Pillaiyarpatti Village in Thanjavur District. He had a sister Rethinathammal. He had also two daughters, Subhammal and Sornathammal. He also had two wives, Lakshmayee and Panjalaiammal. At some point of his life, he had the occasion to get into relationship through marriage with Thangavel Oorthiyar. Thangavel Oorthiyar married Rethinathammal, the sister of Sangilimuthu Sozhagar. They did not have any children. He thereafter married both the daughters of Sangilimuthu Sozhagar. He married Subhammal as his second wife and Sornathammal as his third wife. This leads us to an irresistible conclusion that Sangilimuthu Sozhagar inevitably came under the direct and complete influence of Thangavel Oorthiyar, who was not only his brother-in-law, but also son-in-law, having married both his daughters. The grip and influence which Thangavel Oorthiyar can exercise over the property and belongings and income and the personal life of Sangilimuthu Sozhagar, has to be taken judicial notice. Sangilimuthu Sozhagar died in the year 1923 and at that time, one of his wives had an unborn son in the womb. This son was later named Marimuthu Sozhagar. But the plight of the ladies of the family, namely, the two widows, one of whom was carrying an unborn child and who had two daughters, who both married a single person, Thangavel Oorthiyar, has to be understood in proper perspective. It is also to be taken note of that Sangilimuthu Sozhagar was in possession of properties. At every stage, properties would run the risk of third parties, trying to take them over. The only person in the family now available as a trustee was Thangavel Oorthiyar. It was, under such circumstances, that Ex.B.10 came to be executed. Ex.B.10 is dated 23.07.1923 immediately after the death of Sangilimuthu Sozhagar. By Ex.B.10 power was granted to Thangavel Oorthiyar, son of Kathaiyan Oorthiyar by the widows of Sangilimuthu Sozhagar, Lakshmayee and Panjalaiammal for themselves and the unnamed minor son aged just five months. It was also mentioned that since Sangilimuthu Sozhagar died and since both the widows were ladies and could not go to Court for maintenance of the properties and further since the small minor infant was possessed of properties and there were also borrowals to be collected for the family, they appointed Thangavel Oorthiyar as their agent to act as trustee on behalf of them to maintain the properties which flowed to the minor son owing to the death of Sangilimuthu Sozhagar. Power was also granted not only to recover the loan amounts lent, but also to attend Court cases, to register documents, to receive the registered documents from the Sub Registrar's Office, to sign in the Registers in the Sub Registrar's Office, to file appeals, to collect loans and other amounts for and on behalf of the minor son and as guardian of the minor till he attained the age of majority. In this connection, it must also be mentioned that by Ex.B.10, Thangavel Oorthiyar practically became the only dominant person, controlling all the interest over the estate of Sangilimuthu Sozhagar and also the family members, who survived Sangilimuthu Sozhagar, namely, his two wives and also his two daughters in his capacity as their husband.
30.The documents filed during the trial reveal that Thangavel Oorthiyar had substantially acted pursuant to the power of attorney granted to him. It is a moot question whether he was an agent or whether he was a trustee or whether he was a mere guardian? At any rate, he was having the power to control the properties, flesh and blood of the family members, not only as relative/son-in-law, but also through a contract by Ex.B.10. Ex.B.11 is a promissory note executed by Kaliyaperumal Naidu in favour of Thangavel Oorthiyar in his capacity as guardian of Marimuthu Sozhagar, which was the name given to the infant, who was five months old at the time of execution of Ex.B.10, power of attorney. Ex.B.11 was dated 07.08.1929. This naturally meant that he had acted as agent under Ex.B.10 and lent money to Kaliyaperumal Naidu from and out of the estate of Sangilimuthu Sozhagar. He further lent money similarly to Periyan Pariyari on 23.04.1930 and the promissory note executed was Ex.B.12. Another promissory note executed pursuant to handing over money to Kulanthaivelu Chettiyar dated 24.07.1932 was marked as Ex.B.13. Similarly, Sevathiyan Samban @ Santhanam and Arulanandu Samban had executed a promissory note on 14.04.1933, which was marked as Ex.B.14. In a similar manner, Lakshmana Ambalakaran executed a promissory note on 01.08.1936 in Ex.B.15. Thangavel Oorthiyar not only lent money from the estate, but also by lending money, received documents in respect of immovable properties. An example of this is Ex.B.16, dated 17.05.1931, which is a lease made over document executed by Ayyavu to Thangavel Oorthiyar in his capacity as guardian of Marimuthu Sozhagar. The above documents are mentioned to show that Thangavel Oorthiyar acted upon the power of attorney granted under Ex.B.10 and not only with respect to the suit property, but also with respect to several other transactions. It must also be kept in mind that the suit was instituted in the year 1988 and Sangilimuthu Sozhagar died in 1923 and consequently documents relating to transactions instituted and conducted sixty years prior to institution of the suit, would be very difficult to be produced by either one of the litigants. However, an onus is cast on the parties to a litigation to prove their case in accordance with law. In this case, pursuant to the power granted under Ex.B.10, Ex.B.2, a promissory note, executed by Kanjamalai Udayar, has to be discussed. Ex.B.2 is dated 10.05.1930. This has relevance because the amount involved in this promissory note is directly involved as consideration towards purchase of the suit property. Ex.B.2, as stated above, is dated 10.05.1930 and is a promissory note for Rs.255/-.
31.This has been executed in favour of Thangavel Oorthiyar in his capacity as guardian and trustee of Marimuthu Solazhagar, who is shown as a minor. This has been executed by Kanjamalai Udayar, son of Saminatha Udayar. In this Promissory Note, it has been mentioned that on that date, namely, 10.05.1930, Kanjamalai Udayar had purchased punja land from Thangavel Oorthiyar, who, at the cost of repetition, was mentioned as guardian and trustee of minor ? Marimuthu Sozhagar. For such purchase, consideration amount was executed through this Promissory Note. It was further agreed that it would be repaid with interest at 12% per annum. This punja land which was conveyed to Kanjamalai Udayar is the suit property. This suit property was conveyed by Thangavel Oorthiyar not in his individual capacity, but as a guardian and trustee of minor Marimuthu Sozhagar. In return, consideration by way of Promissory Note was also executed in favour of Thangavel Oorthiyar only in his capacity as guardian and trustee of minor Marimuthu Sozhagar. This leads to an irresistible conclusion that the family property of Marimuthu Solazhagar was dealt with by Thangavel Oorthiyar as trustee and power of attorney agent and guardian. The nature of the property and the ownership of the property originated from the estate of Sangilimuthu Sozhagar, flowed to Marimuthu Sozhagar and then, was dealt with by Thangavel Oorthiyar, only as a trustee and guardian.
32.Ex.B.2 further follows with several endorsements recording payment and extension of time for payment. The first endorsement subsequent to 10.05.1930, is on 10.05.1933, wherein a payment of Rs.39/- (Rupees Thirty Nine only) towards interest and Rs.105/- (Rupees One Hundred and Five only) towards principal was endorsed.
33.At this juncture, the fact that this endorsement was made on 10.05.1930 has to be analysed by this Court since it was one day after the limitation period of three years. In this connection, a time barred debt can always be revived by conduct of parties. This is provided under
Section 25(3) of the Indian Contract Act, 1872.
34.
Section 25(3) of the Indian Contract Act, 1872 reads as follows: ?25.Agreement without consideration, void, unless it is in writing and registered, or is a promise to compensate for something done, or is a promise to pay a debt barred by limitation law.-An agreement made without consideration is void, unless-
(1)...... (2)......
(3)it is a promise made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits?.
35.In Srinivasa Raghavan v. R.Jayaraman and another reported in 1975 (1) MLJ 414, the essential requirements for invoking
Section 25(3) of the Indian Contract Act, 1872, have been cataloged as under:
?(1)the promise to pay, must refer to a debt of which the creditor might have enforced payment, but for the law of limitation, in other words, the consideration for the promise should be an identifiable debt, the recovery of which is barred by limitation.
(2)it should be a distinct promise to pay wholly or in part such a debt; and (3) the promise must be in writing and signed by the person or his duly authorised agent.?
36.In S.Balan v. M.R.Narayanan reported in CDJ 2014 MHC 4544, this Court after considering
Section 25(3) of the Indian Contract Act, 1872, had held as follows:
?21.A contract is an agreement enforceable in a Court of Law. An agreement comprises of acceptance of offer supported by consideration. An agreement without consideration is ?nudum pactum?. Consideration has been made an integral part of agreement under the Indian Contract Act and ?consideration? has been explained in
Section 2(d) of the Indian Contract Act. Consideration may be in different dimensions. Sufferance itself has been considered a valid form of consideration.
22.It would be profitable to extract hereunder the word 'consideration' explained in
Section 2(d) of the Indian Contract Act. It reads as under:
?When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise.?
23.On reading
sections 2(d) and
25(3) of the Indian Contract Act, we can get the rudimentary principle of Indian Contract Act that acknowledgement of a time barred debt, even without receiving any consideration, is valid, because sufferance itself is a consideration for a fresh promise. This is a marked difference between the English Contract Act and the Indian Contract Act, although Indian Contract Act is mainly modeled on the English Contract Act. Thus, a debt, which has become unenforceable because of bar of limitation should be acknowledged, but, it must be unambiguous, clear cut and manifest, by a person that would create a new liability-fresh promise.?
37.The above validates Ex.B.2. There is a further endorsement in Ex.B.2, dated 24.03.1935, in which, towards interest, a sum of Rs.10/- (Rupees Ten only) had been paid. Both the endorsements have also been witnessed and signed by the independent witnesses. Pursuant to Ex.B.2, which as seen above, was originally dated 10.05.1930 and was extended and acknowledged finally on 24.03.1935. Ex.A.1 came into existence. Ex.A.1 is a sale deed with respect to the suit property in favour of Thangavel Oorthiyar, dated 27.05.1938.
38.Ex.A.1 had been executed by the widow of Kanjamalai Udayar by name, Kasiammal, for herself and on behalf of her minor son. In Ex.A.1 ? sale deed, which is also relied on by the appellants herein, as being the document, which traces title and on the basis of which, the partition is sought, Kasiammal had stated that her husband, deceased Kanjamalai Udayar had executed on 10.05.1930, a Promissory Note in lieu of a sale consideration of the suit property, which was purchased on the very same day. It had been further stated that the amounts were due on the Promissory Note and since she was not able to pay the amount due, she was re-conveying the land to Thangavel Oorthiyar.
39.It is, thus, evidently clear that the property in the estate of Sangilimuthu Sozhagar had been conveyed by Thangavel Oorthiyar in his capacity as guardian/power of attorney of Marimuthu Sozhagar to Kanjamalai Udayar, who, in turn, executed Ex.B.2 ? Promissory Note towards sale consideration and since there were still dues payable on the Promissory Note and since Kanjamalai Udayar died and since his widow ? Kasiammal could not repay the amount, she took a decision to reconvey the land back to Thangavel Oorthiyar. This effectively means that the property had come back to the estate of Sangilimuthu Sozhagar, whose legal heir is Marimuthu Sozhagar. It must also be kept in mind that these transactions were prior to the introduction of the Hindu Succession Act, 1955 and at that point of time only, the male members were the sole co-parcerners and the female members were not entitled even to any residuary share in an ancestral property.
40.This property which had been conveyed and re-conveyed was the ancestral property of Sangilimuthu Sozhagar and on his death, vested entirely to his son Marimuthu Sozhagar. Thangavel Oorthiyar was only a step in the ladder, who dealt with the property in his capacity as guardian, trustee and power of attorney agent. It is a settled proposition that an agent cannot claim ownership as against the principal. It is the principal who retains ownership and the agent acts as trustee. The agent cannot become the owner when the principal is still alive. On the death of Marimuthu Sozhagar, who retained ownership of the property and on his attaining 18 years of age, the power of attorney granted in favour of Thangavel Oorthiyar automatically stood cancelled and Marimuthu Sozhagar became the absolute owner of the suit property. The relationship of principal and agent suffers a severance on Marimuthu Sozhagar attaining the age of majority. That was in the year 1941. Even as on 1941, the property had vested back by operation of law to Marimuthu Sozhagar. The fourth defendant in this suit, Govindarajan, is a sole legal heir of Marimuthu Sozhagar. In his written statement, the fourth defendant has asserted that he is the exclusive owner of the suit property and an analysis of the oral and documentary evidence shows that the claim of the fourth defendant has to be upheld by this Court. This reasoning is also in conformity with the reasoning given by the learned Trial Judge, who also negatived the claim of the plaintiffs that the suit property was an ancestral property of Thangavel Oorthiyar. At that very inception, the plaintiffs have to fail, since the property cannot be described as ancestral property of Thangavel Oorthiyar. Once Thangavel Oorthiyar has been declared as a trustee of Marimuthu Sozhagar during his dealings with respect to the suit property, his legal heirs would also not get any right through him. He was merely a trustee/agent. Once the agency agreement became terminated and got cancelled by operation of law, since Marimuthu Solazhgar attained the age of majority, Thangavel Oorthiyar lost every right over title and interest of the suit property. He may still be a family member of Marimuthu Sozhagar in his capacity as father-in-law of Marimuthu Sozhagar, but he has no further right, title or interest over the property. When he has no right, title or interest, the plaintiffs, who claimed through him, also cannot seek any right, title or interest. In this connection, I will have to uphold the findings of the learned Sub Judge, Thanjavur, who also negatived the claims of the appellants and had dismissed the suit. A definite finding has been given on facts. The issue regarding the effect of the dismissal of the appeal as abated against the respondents 2 and 6 also stands in the way of granting any relief since every decree in a partition suit is inseparable.
41.In the result, the Appeal Suit is dismissed with costs and the Judgment and decree dismissing Original Suit No.146 of 1988 by Judgment dated 27.01.1992 by the learned Sub Judge, Thanjavur, are confirmed. Consequently, connected C.M.P(MD)Nos.3864 and 4160 of 2017 are dismissed.
To
1.The Sub Judge, Thanjavur.
2.The Record Keeper, V.R.Section, Madurai Bench of Madras High Court, Madurai..