The plaintiffs are the appellants. The plaintiffs filed a suit for partition claiming half share in the suit properties.
2.The case of the plaintiffs is that the suit properties originally belonged to Periakaruppan Chettiar, who died intestate on 14.02.1943, leaving behind his wife Adaikkamai Achi, son Udayappan and daughter Umayal, the second defendant in the suit. His wife Adaikkammai Achi died intestate after some years and the son Udayappan also died intestate on 18.02.1988 leaving behind him, the plaintiffs as his legal-heirs. The second defendant is the daughter of Periakaruppan Chettiar and the 3rd defendant is her husband. The 'A' schedule property is the ancestral property and on the death of Periakaruppan Chettiyar, his son Udaiyappan became the absolute owner by survivor-ship and his half share in the 'A' schedule property was brought to sale by the Official Receiver and the undivided half share was purchased by the 3rd defendant and even after the purchase, the plaintiffs are in continuous enjoyment of the property and the 'B' schedule property, which is on the western side of the 'A' schedule property was purchased by Adaikkammai Achi, under a registered sale deed dated 03.07.1957 and therefore, in that property, Udayappan and the 2nd defendant were entitled to half share each. Therefore, in the 'A' schedule property the undivided half share devolved upon the plaintiffs and the other undivided half share was purchased by the 3rd defendant and in the 'B' schedule property, the plaintiffs are having half share and the 2nd defendant is having remaining half share and if for any reason it is held that Adaikkammai Achi had title for half share in the 'A' schedule property, even then the plaintiffs are entitled to 1/4th share jointly and therefore, the plaintiffs have filed a suit for partition and separate possession claiming half share in the 'A' and 'B' schedule property.
3.The 2nd defendant filed a written statement denying the allegations made by the plaintiffs and contended that Periakaruppan Chettiar was not the absolute owner of the 'A' schedule property and he was only the owner of half share and the other remaining half share belonged to his co-parcener and Adaikkammai Achi purchased the half share from the co-parcener and on the death of Periyakaruppan Chettiar, his half share devolved on his only son Udayappan and on his adjudication as insolvent his half share vested with the Official Receiver and that was purchased by the 3rd defendant and therefore, the plaintiffs have no right over the 'A' schedule property.
4.It was further contended by the second defendant that the 'B' schedule property was purchased by Adaikkammai Achi, under a sale deed dated 03.07.1957 and after the death of Adaikkammai Achi, the 3rd and 4th defendant were in exclusive possession and enjoyment of the same and the plaintiffs have lost their right in the 'B' schedule property as they were ousted by the 2nd and 3rd defendant and hence, they cannot claim any right over the 'B' schedule property. The second defendant further contended that they sold the 'A' schedule property to the first defendant under a registered sale deed dated 06.04.1997 and executed an agreement of sale on the same day in favour of the first defendant in respect of 'B' schedule property and the first defendant is in enjoyment of the suit property from that date and the suit is barred by limitation and the suit without a prayer for declaration of title is not maintainable in law and therefore, the suit is liable to be dismissed.
5.The second defendant filed additional written statement and had stated that Periakaruppan Chettiar went to Saigaon and did not return to India for a long time and the family was looked after by his wife and she borrowed money from the father of the 3rd defendant and she executed a mortgage for purchasing half share in the 'A' schedule property from one Mangayarkarasi and after the death of Adaikkammai Achi on 18.02.1958, under an oral family settlement that took place between Udayappan and the 2nd defendant it was agreed that Udayappan and the 2nd defendant would get half share in the 'A' schedule property and the entire 'B' schedule property was allotted to the share of the 2nd defendant and as the 3rd defendant purchased the half share of the Udayappan through Official Receiver, the plaintiffs have lost all their rights in the 'A' schedule property and the said Udayappan has also given a declaration before the Official Receiver that he had half share in the 'A' schedule property and no share in any other properties and therefore, the plaintiffs have no right in the suit properties.
6.The plaintiffs filed a replication statement stating that the purchase of half share in the 'A' schedule property by Adaikkammai Achi from Mangaiyarkarasi, under Ex.B2, is not true and is not valid in law and there is no ouster or exclusion of the plaintiffs from enjoying the suit properties. They further stated that originally, Periyakaruppan Chettiar was the adopted son of one Udayappan, who had 3 brothers viz., Raman, Chellappan and Vairan and their father was one Chellappan Chettiar and among the four sons of Chellappan Chettiar, Raman died issue-less, Chellappan Chettiar had only one daughter Umayal and Vairan had also one daughter viz., Mangaiyarkarasi and therefore, the adopted son Periyakaruppan Chettiar became the absolute owner of the suit property and after him, his son Udayappan became entitled to half share by birth and the remaining half share was inherited by him and his mother Adaikkammi Achi, who enjoyed the same as limited estate owner and that was enlarged in the year 1956 and on her death, her 1/4th share was inherited by Udayappan and thus Udayappan got half share by survivor-ship and 1/4th share by inheritance from his mother and his half share alone was brought to sale by the Official Receiver, the remaining 1/4th share in the 'A' schedule property was not sold and in any event, the plaintiffs are entitled to 1/4th share in the 'A' schedule property and half share in the 'B' schedule properties.
7.During trial, the 4th plaintiff examined himself as P.W.1 and marked three documents and the first defendant was examined as D.W.1 and the 3rd defendant examined himself as D.W.2 and marked 9 documents. The letter written by late Udaiyappan was marked as Ex.C1.
8.On the basis of the above pleadings and evidence, the following issues were framed by the trial Court.
1.Whether the plaintiffs became entitled to half share in the 'A' schedule property as legal-heirs of the deceased Udayappan?
2.Whether the plaintiffs are entitled to half share in the 'B' schedule property as legal heirs of insolvent Udaiyappan?
3.Whether the 2nd defendant and her husband prescribed title by adverse possession to the 'A' and 'B' schedule properties?
4.To what relief, the plaintiffs are entitled to?
9.The trial Court, while dealing with the Issue No.1 held that Periyakaruppan Chettiar was only entitled to half share in the 'A' schedule property and the remaining half share was purchased by his wife under Ex.B2, and after the death of Periyakaruppan Chettiar, Udayappan inherited his half share by survivor-ship and that half share was purchased by the 3rd defendant under Ex.B4 from the Official Receiver and in the statement given by Udaiyappan before the Official Receiver in Ex.C1, he admitted that he had half share in the 'A' schedule property and therefore, the 2nd defendant became the absolute owner of the 'A' schedule property by virtue of Ex.B4 and hence, the plaintiffs are not entitled to any share in the 'A' schedule property.
10.The trial Court, while answering Issue No.2 held that in the 'B' schedule property, the plaintiffs are entitled to half share. The trial Court while answering the Issue No.3 held that the 2nd and 3rd defendant ousted Udayappan and prescribed title by adverse possession in respect of the 'A' schedule property and so far as the 'B' schedule property is concerned, it is not proved that the 2nd and 3rd defendant perfected title by adverse possession and passed a preliminary decree in respect of half share in the 'B' schedule property and dismissed the suit in respect of the 'A' schedule property. Aggrieved over the same, the plaintiffs filed this appeal.
11.The first respondent filed Cross Objection in M.P.(MD)No.2 of 2009 in Cross Objection S.R.No.15233 of 2009 challenging the decree declaring half share in the 'B' schedule property in favour of the plaintiffs. There was a delay in representing the Cross Objection and the petition to condone the delay in representing the cross objection was also listed along with the appeal and as the appeal suit A.S.No.312 of 1997 is pending, I consider that the M.P.(MD)No.2 of 2009 in Cross Objection S.R.No.15233 of 2009 must also be allowed and to be numbered after condoning the delay. Therefore, I condone the delay in representing the Cross Objection and the Office is directed to number the Cross Objection.
12.The points for consideration in this appeal and the Cross Objection are:
1.What was the share inherited by Udayappan in the 'A' and 'B' schedule properties?
2.Whether the plaintiffs are entitled to any share in the 'A' schedule property, after half share of Udaiyappan was sold by the Official Receiver under Ex.B4?
3.Whether the respondents/defendants are entitled to the 'B' schedule property to the exclusion of the plaintiffs?
13.Point Nos.1 and 2: The case of the plaintiffs is that the 'A' schedule property was inherited by Udayappan by survivor-ship. This was denied by the respondents/defendants stating that Periyakaruppan Chettiar had only half share in the 'A' schedule property and the remaining half share was purchased by his wife viz., Adaikkammaiachi and the case of the respondents/defendants was accepted by the lower Court and the lower Court held that Periyakaruppan Chettiar was the owner of half share and his wife Adaikkammaaichi became entitled to the remaining half share by virtue of Ex.B2 sale deed.
14.To appreciate the facts involved in this case, it is better to have a Genealogical table, which was given in the plaint.
15.The plaintiffs have not filed any document to show how Periyakaruppan Chettiar became the absolute owner of the entire 'A' schedule property. On the other-hand, the defendants filed Ex.B2, sale deed dated 18.09.1939 executed by Mangayarkarasi, daughter of Vairan Chettiar, W/o. Arunachalam Chettiar, whereby she has sold the undivided half share in the property mentioned in the schedule to that sale deed and in the sale deed no survey number was given and only the boundaries were stated and the extent was mentioned as half of 100 kulis approximately. If we see the description of 'A' schedule property in the plaint, it does not tally with the description of property given in Ex.B2. Further, the 3rd defendant purchased the half share of late Udayappan from the Official Receiver under Ex.B4 and the description given therein corresponds with the description given in the plaint 'A' schedule property. But in Ex.B4, the extent is given as 60-1/2 Kulies and out of that half share was sold under Ex.B4 to the 3rd defendant.
16.If one takes the extent given in Ex.B2, the extent mentioned in Ex.B2 was 100 kulies and out of that undivided half share was sold, whereas under Ex.B4 out of the total extent of 60-1/2, kulies undivided half share was sold. Therefore, in the absence of survey number and having regard to the variation in the extent, it is not safe to come to the conclusion that under Ex.B2, Adaikkammaiachi, purchased the undivided half share in the 'A' schedule property. Though the north, south and eastern boundaries are same in Ex.B1, B2, B3 & B4, the western boundary under Ex.B1 is their own property namely 'B' schedule whereas under Ex.B2 & B3 the western boundary was that of br.c.Udayappachettiar. Therefore the property purchased under Ex.B2 has nothing to do with the plaint A schedule property. Nevertheless, P.W.1 admitted in his evidence that Adaikkammachi was the owner of the undivided half share of 'A' schedule property and after her death, her half share devolved upon his father Udayappan and the 2nd defendant and he is claiming his father's 1/4th share in the 'A' schedule property. This was also stated by the plaintiffs in the replication statement. According to me, the claim of the plaintiffs and the defendants in respect of 'A' schedule property are not legally correct. Admittedly, Periyakaruppan Chettiar, died in the year 1943, leaving behind his son Udayappan, his wife Adaikkammachi, the Second defendant.
17.As per old Hindu Law, which was prevalent at that time, on the date of death of Periyakaruppan Chettiar, his son got half share by birth and the remaining half share of Periyakaruppan Chettiar devolved on his wife and son equally and thus Udayappan became the owner of the 3/4th share and Adaikkammai Achi became entitled to 1/4th share in the 'A' schedule property. After the death of Adaikammai Achi, her 1/4th share devolved on Udayappan and the 2nd defendant and thus Udayappan became entitled to 3/4 + 1/8 = 7/8th share and the 2nd defendant became entitled to 1/8th share. Under Ex.B4, the undivided half share of Udayappan in 'A' Schedule property was brought to sale by the Official Receiver and that was purchased by the 3rd defendant. Though under that document the undivided half share was sold by the Official Receiver on behalf of Late Udayappan, and under that sale half of udayappan share in 'A' schedule property viz., half of 7/8 which is equivalent to 7/16th share was sold by the Official Receiver to the 3rd defendant and already the 2nd defendant had 1/8th share in her independent right and therefore both the 2nd defendant and the 3rd defendant could have conveyed only 7/16 + 1/8 equivalent to 9/16 share in the 'A' Schedule property to the 1st defendant and the remaining 7/16th share was owned by Udayappan and that was inherited by the plaintiffs.
18.In Ex.B1, the sale deed executed by the 2nd and 3rd defendant, it is mentioned that the 3rd defendant got half share by virtue of purchase from the Official Receiver under Ex.B4 and the remaining half share was inherited by the 2nd defendant and she sold the same under Ex.B1 to the 1st defendant. It is not known from whom the 2nd defendant inherited the half share of the 'A' schedule property. It is stated that the remaining half share belonged to the 2nd defendant as she got the same as legal-heir. If the case of the defendants that Adaikkammaiachi purchased half share under Ex.B2 in the 'A' schedule property is to be accepted then after her death, it devolved upon Udayappan and the 2nd defendant and each of them would have inherited 1/4th share in the property. Therefore, 2nd defendant could not have inherited half share in the 'A' schedule property. I have already held that it is not proved that under Ex.B2, Adakammai Achi, purchased . share in the 'A' schedule property.
19.In the additional written statement, the 2nd defendant claimed that there was a panchayat in which, Udayappan accepted her half share in the 'A' schedule property and also accepted that the entire 'B' schedule property belonged to her and that is confirmed by Ex.C1. In the statement of Udayappan before the Official Receiver, he admitted that he had no other properties, except half share in the 'A' schedule property, which belonged to his mother. The defendants did not let in any evidence to prove the compromise and therefore, the claim of the 2nd defendant that under the compromise, she got half share in the 'A' schedule property cannot be accepted. In Ex.C1, Udayappan has only stated that his mother was the owner of that property and after her death he and his sister Umayal are having half share each in that property and he further stated that there was a encumbrance in favour of the 3rd defendant for a sum of Rs.6,000/- and subject to the encumbrance, he is having half share in the 'A' schedule property. In Ex.C1, he had stated that he had no other property. Of course, 'B' schedule property is not mentioned in Ex.C1. From that one cannot jump to the conclusion that Udayappan had given up his right over the 'B' schedule property under Ex.C1. In fact that udayappan mentioned that his mother mortgaged that property with 3rd defendant and that mortgage is still subsisting go to show that the property which was mentioned in Ex.B4 was the property belongs to Udayappan ancestrally.
20.It was argued by the learned counsel for the respondents that in Ex.C1, Udayappan, accepted that he was entitled to half share and the remaining half share belonged to his sister, the 2nd defendant and Udayappan's half share was sold by the Official Receiver to the 3rd defendant and therefore, the statement in Ex.B1, that the 3rd defendant and the 2nd defendant are each having undivided half share in the 'A' schedule property is correct and therefore, the plaintiffs cannot claim any share in the 'A' schedule property. The argument of the respondents' counsel though appears to be attractive, cannot be accepted.
21.As stated supra, Udayappan got 7/16th share in the property by virtue of survivor-ship and inheritance after the sale by Official Receiver under Ex.B4. In Ex.C1, he had only stated he and his sister are having half share each in the property belonging to their mother. This was made clear by the recitals in Ex.C1. In this case, the plaintiff did not accept the Ex.C1 and it is also not proved by the defendants that it was executed by Udayappan. No- doubt, Ex.C1 bears the seal of the office of the Official Receiver and the claim of the defendants that Udayappan gave a statement to the Official Receiver was denied by the plaintiffs in the replication statement. Therefore, in the absence of proper proof adduced by the defendants, it cannot be accepted that under Ex.C1, Udayappan made that statement. Therefore, if Ex.C1 is eschewed, there is no other document to support the case of the defendants that the 2nd defendant got half share in the 'A' schedule property. In this regard, the finding of the lower Court made in para 14 is also erroneous. According to the lower Court, it proceeded on the basis of Ex.B2, and held that Adaikkammaiachi became the owner of the undivided half share in the 'A' schedule property. Therefore, the lower Court has held that Udayappan, inherited half share by survivor-ship and Adaikkammaiachi got half share and after the death of Adaikkammachi, Udayappan became entitled to 3/4th share in the 'A' schedule property and under Ex.C1, Udayappan had given a statement that he and his sister are each entitled to half share and therefore, the plaintiffs are not entitled to any share in the 'A' schedule property. The above findings of the lower Court is based upon Exs.C1 and Ex.B2, the alleged admission by Udayappan,and the sale deed by which Adaikkammaiachi, purchased the half share in the property mentioned therein. As stated supra, there is no convincing evidence to come to the conclusion that the property conveyed under Ex.B2, represents the half share in the 'A' schedule property. There is difference in extent and no survey number is given in Ex.B2 and the western boundary is also different. Therefore, in the absence of any material, it is not safe to come to the conclusion that under Ex.B2, Adaikkammaiachi, purchased the undivided half share in the 'A' schedule property. My finding is further confirmed by the lower Court, when it rightly disbelieved the compromise or mediation under which, the 2nd defendant claimed half share in the "A' schedule property. Therefore, taking into consideration of all these aspects, in my opinion, the finding of the lower Court that the plaintiffs are not entitled to any share in the 'A' schedule property cannot be accepted and therefore, I set aside the finding of the lower Court and held that the plaintiffs are entitled to 7/6th share in the 'A' schedule property.
22.Point No.3: It is admitted by both parties that the 'B' schedule property was purchased by Adaikkammachi, under Ex.A1. Therefore, after the death of Adaikkammachi, the plaintiffs and the 2nd defendant are each entitled to half share and hence, the finding of the lower Court that the plaintiffs are entitled to half share in the 'B' schedule property is correct and I confirm the finding of the lower Court that in respect of 'B' schedule property, the plaintiffs are entitled to half share and the defendants have not prescribed any title by adverse possession to that property.
23.The trial Court held that the defendants prescribed title by adverse possession in respect of 'A' schedule property and they ousted the plaintiffs from enjoying the 'A' schedule properties. 'A' and 'B' schedule properties are adjacent properties and it is admitted that 'A' schedule property is on the east and the 'B' schedule property is on the west. As a matter of fact, both are forming part of one property. Admittedly, Udayappan and the 2nd defendant are each entitled to undivided share in the properties and when the lower Court has held that there is no adverse possession so far as the 'B' schedule property is concerned, it is surprising to note how the lower Court has held that in respect of 'A' schedule property, the defendants have prescribed title by adverse possession. Therefore, I set aside the finding of the lower Court in respect of the 'A' schedule property that the defendants prescribed title by adverse possession.
24.As I have held that the plaintiffs are entitled to 7/16th share in the 'A' schedule property and in respect of 'B' schedule property, both the plaintiffs and the 2nd defendant are each entitled to half share, the Cross Objection filed by the respondents is dismissed and the appeal filed by the appellants is allowed holding that the plaintiffs are entitled to 7/16th share in the 'A' schedule property.
25.In the result, the decree and judgment of the lower Court in so far as the 'A' schedule property is concerned, it is set aside and the appellants are entitled to 7/16th share in the 'A' schedule property and so far as the 'B' schedule property is concerned, the decree and judgment of the lower Court is confirmed. In the circumstances there is no order as to costs.
er To, The Subordinate Judge, Pudukkottai.