IN THE HIGH COURT OF JUDICATURE AT MADRAS          

DATED: 17/09/2005

CORAM  

THE  HON'BLE MR.JUSTICE M.CHOCKALINGAM          

S.A. No.365 of 1994
and S.A.Nos. 366 and 367 of 1994

Poyyamozhi                     ..Appellant in S.A.No.365/1994

Arunachala Padayachi            ..Appellant in S.A.No.366/1994

1. Manimozhi Ammal      )
                        )
2. Pugalendi            )       ..Appellants in S.A.No.367/1994
                        )
3. Thamilayya           )
    Third appellant declared
    as major as per
    order dated 3.3.94 in
    C.M.P.Nos.3290 & 3291/94

-Vs-

1. Narayanasami Padayachi
2. Rajakannu
3. Mani                                 ..Respondents.

        These Second Appeals have been filed under Section 100 C.P.C.  against
the judgment and the decree dated 29.10.1993 made in  A.S.Nos.    28,  30  and
32/93  before  the  Addl.Sub-Court,  Cuddalore, reversing the judgment and the
decree dated 22.12.1992 in O.S.Nos.    532,  533  and  531/82  passed  by  the
District Munsif Court, Panruti.

!For Appellant :  Mr.G.Rajagopalan, Senior Counsel for
                M/s.G.M.Associates

^For Respondents :  Mr.G.Kathirvelu


:C O M M O N J U D G M E N T  

        This judgment  shall  govern  the  above  three second appeals.  These
second  appeals  have  been  filed  challenging  a  common  judgment  of   the
Subordinate  Judge,  Cuddalore, made in A.S.Nos.28/93, 30/93 and 32/93 wherein
the judgment of the District Munsif, Cuddalore in O.S.No.531, 53 2 and  533/82
was reversed.
        2.  The appellants before this Cout were the plaintiffs, who filed the
said  three suits seeking for declaration of title and consequential permanent
injunction  or  in  the   alternate,   recovery   of   possession   from   the
defendants/respondents herein.    On  trial,  the  suits were decreed granting
declaration and consequential permanent injunction.  Aggrieved defendants took
them on appeals wherein the judgment of the trial Cout was  reversed  and  the
suits were  dismissed.    Hence, these three second appeals at the instance of
the plaintiffs.
        3.  As could be seen from  the  avements  in  the  plaints,  the  suit
property  originally belonged to one Chinnammal, wife of Muthulinga Padaiachi.
She executed a Will under Ex.A4 on 15.11.62.  On her death, the property  came
to the hands of the fourth defendant and the fourth defendant has executed the
sale  deeds in favour of the plaintiffs under Exs.A1 and A12 in respect of the
properties found in the plaint schedule in O.S.No.531/82  and  Ex.A13  is  the
sale  deed  executed in respect of the properties found in the plaint schedule
in O.S.No.532/82 and Ex.A46 is the  sale  deed  executed  in  respect  of  the
properties found   in  the  plaint  schedule  in  O.S.No.533/82.    Thus,  the
plaintiffs derived title  through  the  sale  deeds  executed  by  the  fourth
defendant and  that  they  have been in enjoyment of the same.  The defendants
would adumbrate that they have title to the property.  Hence,  there  arose  a
necessity for filing the suits.
        4.   The  first  defendant  contested  the  suit  by  filing a written
statement while the second and third defendants adopted the same.    What  was
all  contended  by  the  first  defendant  was  that the properties originally
belonged to the joint family consisting of Govinda  Padaiyachi  and  his  four
sons;  that  Muthulinga  Padaiyachi,  husband of Chinnammal had no independent
right to execute any sale deed.  Thus, the original  sale  deeds  executed  in
favour  of  Chinnammal under Exs.A2 and A3 did not pass on any title and thus,
Chinnammal had no right to execute the Will.  Added further, the Will  alleged
to  have  been executed by Chinnammal was not at all executed by her and there
were number of suspicious circumstances attending over the same  and  further,
since Muthulinga Padaiyachi, despite having two wives, had no issues, paid all
his  affection  on  the  first defendant and treated him as his son and on the
death  of  Muthulinga  Padaiyachi,  the  property  was  enjoyed  not  only  by
Chinnammal but also by the first defendant and on the death of Chinnammal, the
property came to the hands of the first defendant and thus, he continued to be
the  owner and he was in possession of the same and thus, the fourth defendant
never became the owner of the properties in question nor had he got the  right
to execute any sale deed in favour of the plaintiffs and thus, the case of the
plaintiffs has to be rejected.
        5.  The  trial Court framed necessary issues and tried the suit.  Both
sides adduced evidence both oral and documentary and the trial Court  answered
the issues in favour of the plaintiffs and granted a decree of declaration and
consequential permanent  injunction.    Aggrieved,  the  defendants took it on
appeals and on enquiry, the first appellate forum, rendered a common  judgment
wherein  the  judgments  of  the trial Court were set aside and the suits were
dismissed.  Hence, these second appeals at the instance of the  plaintiffs  in
the three original suits.
        6.   The  following  substantial  questions of law were framed by this
Court at the time of admission.
        1.  Whether in law the lower Appellate Court is wrong in holding  that
the  suit  properties did not belong to Chinnammal, inspite of ex.A2 7 A3 sale
deeds in her favour and thereby ignored  the  statutory  abolition  of  benami
transaction?
        2.   Whether  the  lower  Appellate Court is right in finding that the
decree in O.S.No.993 of 1996 would not operate as resjudicata in  the  present
suit?
`       7.   The  Court  heard the learned counsel for the appellants and also
the respondents.
        8.  Learned counsel for the appellants interalia would submit that the
plaintiffs have purchased the properties  under  four  registered  sale  deeds
marked as Exs.  A1, A12, A13 and A46 and those sale deeds were executed by the  
fourth  defendant  in  whose favour the original owner Chinnammal had executed
the Will, Ex.A4.  On her death, the  Will  came  into  force  and  the  fourth
defendant derived  title  and  had  executed the sale deeds.  In so far as the
Will Ex.A4 executed by Chinnammal was concerned,  the  original  of  the  same
could not be produced since the same was filed in the earlier suit between the
parties  and when the original Will was sent for, it could not be obtained but
a communication was received stating  that  the  said  original  document  was
destroyed.  Under such circumstances, the original Will could not be produced.
Whether  the will executed by Chi nnammal was true, valid or otherwise was the
subject matter in the earlier proceedings in which the first defendant  was  a
party  to  it  and he contested on the same lines and the judgment on the said
issue has become final and now, the first defendant cannot question the  same.
Added   further  learned  counsel,  as  to  the  contention  putforth  by  the
respondents' side that the properties originally belonged to the joint family,
there was no evidence at all and it is true  that  Muthulinga  Padaiyachi  had
executed  two  sale  deeds  in  favour  of his wife and from that time onwards
Chinnammal as the owner was in possession and enjoyment and she has executed a  
Will in favour of the fourth defendant and the fourth defendant  has  executed
four sale deeds in question through which the plaintiffs have claimed title to
the properties.    The  trial Court has marshalled the evidence proper and has
granted a decree but the appellate forum has set it aside erroneously.  On the
evidence adduced by the plaintiffs, they have proved the case and  hence,  all
the three second appeals have got to be allowed.
        9.   Contrary  to  the  above  contentions,  learned  counsel  for the
respondents would submit that the properties in question  originally  belonged
to the  joint  family consisting of Govinda Padaiyachi and his four sons.  The
sale deeds alleged to have been executed by Muthulinga Padaiyachi under Exs.A2
and A3, were not valid and apart from that though he was  the  Kartha  of  the
joint family even the recitals would clearly indicate that there was no reason
to  execute  such  sale deeds and thus, the property continued to be the joint
family property in the hands of the members of the joint family consisting  of
the   first  defendant  all  along  with  his  brothers  including  Muthulinga
Padaiyachi, the husband of the said Chinnammal and  thus,  Chinnammal  has  no
right of  alienation.    Added  further  learned counsel in so far as the Will
executed by Chinnammal  was  concerned,  since  she  has  no  right  over  the
property,  she  could  not  execute  such  a  Will and even the Will which was
executed was not produced in the instant  case  and  the  reliance  which  was
placed  by  the  appellants on the judgment rendered by the Civil forum in the
earlier proceedings would not bind the parties and  it  would  not  constitute
res-judicata in so far as the Will was not proved and the plaintiffs who claim
title  to  the  property  under the Will could not make a claim over the same.
Added further learned counsel it was the case where the  first  defendant  has
pleaded and   proved   adverse   possession  of  the  property.    Under  such
circumstances, without considering the evidence in the proper perspective, the
trial Court has granted the relief and on enquiry, the first  appellate  Court
had set  aside the same.  Hence, the judgment of the first appellate Court has
got to be confirmed and the second appeals have got to be dismissed.
        10.  The Court paid its full attention on the submissions made and had
a thorough scrutiny of the entire materials available.
        11.  As could be seen above, the plaintiffs have claimed title to  the
property in  all these three suits under four sale deeds namely Exs.  A1, A12,
A13 and A46.  Their case in gist was that the property belonged to the  fourth
defendant  and as the owner of the property, the fourth defendant had executed
sale deeds in favour of the plaintiffs in the three suits.  The only defendant
who contested the suit was the first defendant.   The  second  and  the  third
defendants had no separate defence to offer.
        12.   It is not in controversy that one Govindasamy Padaiachi had four
sons by name Muthulinga Padaiachi, Narayanasamy Padaiachi, Ramar and Muthusamy      
Padaiyachi.  Chinnammal was the wife of  Muthulinga  Padaiyachi.    Muthulinga
Padaiyachi has  executed two sale deeds in favour of Chinnammal under Exs.  A2
and A3 dated 25.1.1941 and 27.3.1943 respectively.  The first defendant in the
course of cross examination has clearly admitted that no documentary  evidence
is available  to  show that the properties belonged to Govinda Padaiyachi.  On
the date when those sale deeds were executed by Muthulinga Padaiyachi in  1941
and  1943,  those  documents have come into existence in favour of Chinnammal.
Admittedly, the first defendant was a major at that time.  It is not the  case
of the  first  defendant that he had no knowledge about the sale.  Had it been
true that Muthulinga Padaiyachi had no right to execute such a sale deed,  the
first  defendant  would  have challenged the same but has not done so, despite
the knowledge of  the  same.    Therefore,  the  contention  putforth  by  the
respondents  that  the  property  originally  belonged  to  the  joint  family
consisting of Govinda Padaiyachi and his four sons and continued to remain  as
such,  despite  the  execution  of  Exs.A2  and  A3  sale  deeds by Muthulinga
Padiayachi in favour of Chinnammal, has to be discountenanced at this stage.
        13.  The second contention that Chinnammal had  no  right  to  execute
such  a Will as found under Ex.A4 has got to be discountenanced for the simple
reason she derived title under Exs.A2 and A3 in the year 1941 and 1943  itself
and thus,  she  became  the  owner of the property.  So far as Ex.A4, Will was
concerned, the case of the plaintiff was that it was executed by Chinnammal in
favour of the fourth defendant on 15 .11.1962.  The  first  defendant  took  a
specific stand  that  she  had no right to execute a Will.  Even assuming that
she has executed a Will, such a Will is neither true nor valid because it  was
surrounded by  suspicious  circumstances.    In the instant case, it is not in
dispute that she executed the Will as found under Ex.A4.
        14.At this juncture it has to be pointed out that one of the  brothers
of   the   first   defendant  by  name  Ramar  Padaiyachi  has  already  filed
O.S.No.993/69 wherein the  first  defendant  and  the  fourth  defendant  were
parties.   It  was  a suit filed by one Ramar Padaiachi seeking declaration of
the property that the property belonged to himself and his brother, the  first
defendant  and  the  plaint copy of the said suit was marked as Ex.A58 and the
written statement filed by the fourth defendant was marked as Ex.B59  and  the
written  statement  filed  by  first  defendant  herein  who has contested the
instant suit was marked Ex.B60.  In that suit, a specific issue was framed  on
the  contention  putforth by the first defendant that the will was not true or
genuine.  The issue framed reads as follows:  " Whether the  Will  alleged  to
have  been  executed  by  Chinnammal  in  favour of the first defendant(fourth
defendant herein) on 15.11.62 is true, valid and was executed while she was in
a sound and disposing state of mind?".  In that case, sufficient  opportunites
were given  to all the parties to let in evidence.  The judgement of the trial
Court made in O.S.993/69 was marked as Ex.  A9.   A  perual  of  the  judgment
would  clearly  reveal  that the said Court had expatiated the entire evidence
including that of the contesting witness and found that the Will was true  and
valid and  acted  upon also.  It is to be noted that the very same defence was
taken out by the first defendant herein which was already taken in the earlier
proceedings.  Hence, it would be quite evident that the  first  defendant  has
questioned  the  truth  and validity of Ex.A4 Will and has reiterated the very
same defence in this case in which he has already failed.  From the  judgement
of  O.S.No.993/69  an  appeal  has  been  preferred  and  the  appeal was also
dismissed.  Under such circumstances, the finding of the Court in  respect  of
the  Will  would  be binding on the first defendant who took a defence against
the execution of the will and failed.  Now, it would be leading to reiteration
of the same defence.
        15.  Further, in the instant case, the contention of  the  respondents
that the Will was neither produced nor proved has to be discountenaced for the
simple  reason  that  the  plaintiff has taken serious attempt to sent for the
document namely, the original Will from the other proceedings,  but  the  same
was returned  as  the  original will was destroyed.  Now, the point is whether
the Will which was executed by Chinnammal in favour of the  4th  defendant  on
15.11.1962  is the subject matter between the same parties, who are members of
the joint family and found to be true.  No  question  of  re-adjudication  and
giving  a different finding would arise because, originally, in O.S.993/69 the
same issue was framed and decided that the will was  genuine  and  hence,  the
same has become final.  Thus, the Court has to accept the finding of the trial
Court that  the  Will was acted upon.  Further, if Chinnammal had transferable
right in the suit property in respect  of  which  she  executed  the  Will  on
15.11.1962  as  found  in Ex.A4, the property should come automatically to the
hands of the fourth defendant on the death of Chinnamma and hence, the  fourth
defendant in  turn  has  executed  four  sale  deeds  in question.  Under such
circumstances, the attempts made by the first defendant to defeat  the  rights
of Chinnammal  in  a  different  way failed.  Now, he has taken a stand in the
instant suit as he is the foster son of Muthulinga Padaiyachi and on his death
the property was enjoyed by all in the  joint  family  and  on  the  death  of
Chinnammal, the  property came to his hands.  The court is of the opinion that
the very defence pleaded  would  be  nothing  but  improper  and  unacceptable
because a feable attempt was made to get the property if possible.
        16.   The  further contention made by the first respondent's side that
he has been in possession of the property  by  adverse  possession  cannot  be
accepted  since  the trial Court, marshalling the evidence proper has rejected
the ownership of the first defendant.  In the instant case, a  feable  attempt
was  made  by  the first defendant pleading adverse possession and nothing has
been broughtforth to accept the said adverse possession because it was  not  a
case at all at any point of time.  Originally, he has claimed ownership of the
property  as  the  member  of joint family and hence, adverse possession at no
stretch of imagination could be accepted.  Hence, it has got to  be  rejected.
Under such circumstances, the first appellate forum without proper perspective
of  evidence  has  set  aside the judgment of the trial Court and it has to be
pointed out that the First Appellate Court has given a finding that  the  Will
is not proved forgetting the facts that the matter has already been decided in
the  earlier  suit  between the same parties and the same has become final and
the original will which was the subject matter has been destroyed.  It is  not
the  case  where  the parties were relying on the Will but were relying on the
sale deeds executed by the fourth defendant.  So far as the  fourth  defendant
is  concerned,  he derived title through the Will in question and the Will has
been proved in the earlier proceedings adjudicated between  the  same  parties
and it is not the main issue but a subsidiary issue.
        17.   Under  such  circumstances,  the Court is of the considered view
that the appeals have got to be allowed.  Hence, the judgement  of  the  first
appellant  Court  is  set  aside  and  the judgment made by the trial Court is
restored.  The Second Appeals are allowed.  No costs.

Index:Yes
Internet:  Yes

vsi

To

1.  The Additional Sub-Judge,Cuddalore.
2.  The District Munsif Court, Panruti.