Madrasdated High Court · 2007

the plaintiff also died intestate in the year 1952; Since the plaint'C' schedule properties are the ancestral properties of AyyakannuServai, after his death the same devolved upon his sons Murugan andDuraisamy and both of them were entitled to ½ share each; On thedeath of Duraisamy his wife as sole heir succeeded to his ½ share asper Hindu Law; since Murugan died intestate and issueless in 1954 hismother Angammal succeeded to his ½ share as per Hindu Law; thus theplaintiff and Angammal became entitled to ½ share in the plaint 'C'schedule properties.4. It is the further case of the plaintiff that on the death ofDuraisamy, the plaintiff and Angammal were in joint possession andenjoyment of the 'C' schedule properties; in 1959 due to differenceof opinion both of them as per the advice of the panchayatdarsdivided the properties and as per the decision of the panchayatdars'A' schedule properties were allotted to the plaintiff and 'B'schedule properties were allotted to Angammal; from then on both ofthem were enjoying the said properties by paying kist separately; theplaintiff was paying kist for the properties allotted to her and shecontinued to be in possession; after the said arrangement in 1959 theplaintiff and Angammal are entitled to their respective shares.Angammal has no independent right over the 'C' schedule propertiesand even if she claims any such right it is untenable; Angammal diedin 1982; after her death her daughter namely the defendants 1 & 2 areentitled to her ½ share; thus the plaintiff is entitled to ½ shareand defendants 1 & 2 together are entitled to ½ share in the 'C'schedule properties. While so, in July 1985, since the defendants 1& 2 attempted to alienate Item No.3 of the 'A' schedule propertywhich was allotted to the plaintiff, the plaintiff caused a legalnotice dated 05.07.1985 to the defendants 1 to 3. On receipt of thelegal notice, the defendants 1 to 3 sent a reply notice dated23.07.1985 contending the averments as false. In the said replynotice the defendants 1 to 3 contended that items 4,5 & 6 of 'A'schedule properties and items 4 to 7 of 'B' schedule propertiesbelonged absolutely to Periyasamy Servai husband of the 1st defendant.The rest of the properties are the separate properties of Angammal.Neither Ayyakannu Servai nor Muthukaruppa Servai had any right in theproperties. Angammal executed a settlement deed on 02.05.1960 infavour of the defendants 1,4 and the 2nd defendant. Angammal anddefendants 1 & 2 have jointly executed a settlement deed dated18.08.1979 in favour of the third defendant. The settlement deedsmentioned in the reply notice have not come into force and were notacted upon and the settlees under the settlement deeds were not inpossession of the properties. Since the suit properties areancestral properties of Ayyakannu Servai and as the plaintiff isentitled to ½ share in it and Angammal has no right to executethe settlement deed in respect of the plaintiff share and as such thesettlement deeds in so far as the share of the plaintiff is concernedare void and not binding on the plaintiff. https://hcservices.ecourts.gov.in/hcservices/

5. Pursuant to the oral partition in 1959, the plaintiff andAngammal were enjoying the 'A' and 'B' schedule propertiesrespectively, while so, Angammal alienated the 3rd item of 'B'schedule property in favour of the defendants 5 to 7. Since Angammalwas dealing with the properties allotted under oral partition, theplaintiff did not object the same. To get a binding adjudication,the alienees have also been impleaded as parties. Since theplaintiff and defendants 1 & 2 are co-sharers they are in jointpossession of the suit properties in consonance with the oralpartition in 1959. The plaintiff has sought for a declaration oftitle in respect of 'A' schedule properties. Since the defendants 1to 4 have trespassed into 'A' schedule properties after filing of thesuit, recovery of possession was also prayed for and mesne profit wasalso claimed. Since the 8th defendant has purchased the 1st item ofthe 'A' schedule properties on 13.02.1987 she has also been impleadedas a party.6. It is further pleaded in the plaint that in case if the Courtcomes to a conclusion that oral partition made in 1959 is not proved,the plaintiff is praying for an alternative relief of partition andseparate possession of her ½ share in the 'C' schedule properties andfor mesne profit.7. The defendants 1 to 4 contested the suit, the writtenstatement filed by the 4th defendant has been adopted by thedefendants 1 to 3. They contested the suit inter alia contending asfollows:The allegations in paragraphs 3 to 10 are false; Muthukaruppa Servaihas no property at all; Ayyakannu Servai was mentally retarded; thedate of death of parties as given in the plaint are denied; theplaint 'C' schedule properties did not belong to Ayyakannu Servai;the oral partition of 1959 claimed by the plaintiff is not true;plaintiff was never been in possession of any properties; theproperties described as item Nos. 4 to 6 in 'A' schedule and itemNos.4 to 7 in 'B' schedule properties belonged to Periyasami Servaifather of the defendants 1 & 2 as the same was acquired by him underassignment from the Government. Items 1,2,3,7 and 8 of 'A' scheduleand items 1,2,3,8 and 9 in 'B' schedule properties belongedabsolutely to Angammal wife of Ayyakannu Servai, as such theplaintiff cannot claim any right in the properties; as absoluteowners Periyasami Servai and Angammal were in possession andenjoyment of the properties on their own right. The settlement deedexecuted by Angammal have been properly accepted by the settleesand they have come into force and the settlees continue to be in openand peaceful possession of the properties; the defendants 1,2 and 4in their own right are in possession and enjoyment for over thestatutory period and their title has been perfected by adversepossession. The gift deed dated 18.08.1979 executed by Angammal inrespect of items 1 and a portion of item 3 in favour of the 3rddefendant is legally valid; the 3rd defendant also perfected the titleby adverse possession. https://hcservices.ecourts.gov.in/hcservices/

8. The suit is in the nature of champerty, the plaintiff haspurportedly executed in favour of her counsel in respect of item 1 of'A' schedule property knowing fully well that she had no right overthe property and as an agreement for the conduct of the suit onbehalf of the plaintiff. Hence the suit is liable to be dismissed inlimine; the suit properties have not been properly valued; theplaintiff is not in joint possession of the properties, thereforevaluation adopted under Section 37(2) is untenable; inspite of theassertion of title, the plaintiff has not chosen to mention howMuthukaruppa Servai was entitled to the suit properties; the claim ofthe plaintiff is vexatious and on the above said pleadings thedefendants 1 to 4 sought for the dismissal of the suit.9. The 6th defendant filed a separate written statement interalia contending as follows:The allegations in paragraphs 3 to 10 are false; even assuming theoral partition pleaded by the plaintiff to be true, since on thedeath of Angammal, the defendants 1 and 2 are entitled to the 'B'schedule property; the registered sale deed dated 26.04.1971 executedby them in favour of the defendants 6 & 7 in respect of an extent of2.64 acres out of 3.95 acres in R.S.No.216/1 is valid; ever sincethe date of purchase, defendants 6 & 7 are in possession andenjoyment of the same; apart from possession and title, defendants 6& 7 prescribed title by adverse possession also.10. In the additional written statement filed by the 4thdefendant it is contended as follows:The relationship mentioned in para 4 of the plaint is not correct;the year of death of the predecessors-in-title as shown in the plaintis not correct; the allegation that the defendants 1 to 4 trespassedinto 'A' schedule property after filing of the suit is not correct;the plaintiff never enjoyed 'A' schedule properties and in particularshe was not in possession of the properties from 1959 as claimed byher; the suit is barred by limitation; the plaintiff has executed thesale deed dated 19.11.1985 in favour of the 8th defendant in respectof item 1 of 'A' schedule property on the same date when the suit wasfiled; thereafter intentionally has got the plaint returned and re-presented the same only after a delay of two years and with anintention to cause hardship and loss to the defendants.11. The plaintiff filed a reply statement contending as follows:The allegation contained in the written statement of the defendantsare false; having admitted the relationship of the parties in thereply notice sent by them, the defendants have denied therelationship in their written statement; after the summons in thesuit was served, the 4th defendant using his manpower harvested thecrops raised by the plaintiff in her properties and from then on thedefendants 1 to 4 are in possession of the 'A' schedule propertiesand therefore they are liable for mesne profit till they deliverpossession of the properties; since the 4th defendant is an https://hcservices.ecourts.gov.in/hcservices/ influential person, by using his influence he has obtained pattaunder U.D.R. Scheme in respect of the 'A' schedule properties; he hasprevented the Village Administrative Officer from collecting kistfrom the plaintiff; the plaintiff paid kist in respect of her shareof land till 1985; though the defendants 1 to 4 have stated in theirwritten statement that the suit properties belonged to Angammal, theyhave not stated as to how they are entitled to the same; since thedefendants 1 to 4 have claimed properties belonging to Angammal theyare not entitled to claim title by adverse possession; in respect ofitem 1 of 'A' schedule property the plaintiff has executed a saledeed in favour of the 8th defendant after receiving the saleconsideration of Rs.6,600/-; the defendants 1 to 4 are not entitledto question the said sale; the suit was filed on 19.11.1985 but thesale deed was executed only on 14.02.1987 and as such the allegationsof the defendants to the contrary are not correct.12. The 8th defendant has contested the suit by filing a separatewritten statement inter alia contending as follows:The 8th defendant has purchased an extent of 0.33 cents in SurveyNo.84/5 which is shown as item No.1 in 'A' schedule under a sale deeddated 13.02.1987 for valid consideration of Rs.6,600/-. Since theplaintiff was in possession and enjoyment of the property, the 8thdefendant has purchased the property from her; but as per therecitals in the sale deed, the 8th defendant could not take possessionsince the defendants 1 to 4 prevented her from taking possession andthe defendants 1 to 4 are in possession of the property and thereforethey are liable to pay mesne profit to her; the property purchased bythe 8th defendant should be allotted to the share of the plaintiff.13. On the above said pleadings the following issues have beenfarmed by the trial court:-(i)Whether the plaintiff is entitled for declaration as prayedfor?(ii)To what relief the plaintiff is entitled to?The following additional issues have also been framed:(a) Whether the defendants 1 to 3 are liable to pay mesne profit?(b) Whether the 8th defendant is entitled to get any relief onequity?14. During trial, on the side of the plaintiff her brotherPeriyasamy Servai was examined as P.W.1 and Exs.A-1 to A-15 have beenmarked. On the side of the defendants, the fourth defendant wasexamined as D.W.1 and three other witnesses have been examined asD.Ws.2 to 4 and Exs.B-1 to B-46 have been marked. The trial court ona consideration of the oral and documentary evidence adduced in thecase, held that items 2 to 8 of the plaint 'C' schedule properties https://hcservices.ecourts.gov.in/hcservices/ belonged to Periyasamy Servai as the same had been assigned to him bythe Government and as such the plaintiff is not entitled to seekpartition in respect of the suit properties. The trial court furtherheld that the plaintiff is entitled to seek partition of her ½ sharein respect of items 1, 9 to 13 and 14 in the plaint 'C' scheduleproperties and granted a preliminary decree, but rejected the reliefof mesne profit claimed by the plaintiff as well as the 8th defendant.The trial court further held that since the 8th defendant is not abonafide purchaser, he is not entitled to get any equitable remedy.Being aggrieved by the judgment and decree of the trial court, thedefendants 1 to 4 have filed the above appeal.15. In the memorandum of grounds of appeal, the judgment anddecree of the trial court is challenged as under:-The judgment and decree of the trial court is contrary to law,erroneous and opposed to the probabilities of the case; The courtbelow erred in decreeing the suit for partition on the basis of Ex.A1which is termed as a holding register when the contents of thedocument have neither been proved by any other independent evidenceor by production of title deeds; Ex.A1 does not have any statutoryvalue as it is not a register which is to be maintained under theIndian Registration Act; the court below should not have basedreliance on Ex.A1 and should have dismissed the suit for partitionholding that the properties are the properties of Angammal; thelitigation is in the nature of champerty should have been dismissedas the wife of the plaintiff's counsel had purchased the items ofsuit properties and is financing the litigation; even in Ex.A1reference was made to Angammal in respect of certain properties andas such those properties should have been excluded.16. Heard Mr.V.Raghavachari, learned counsel appearing for theappellants and Mr.V.Ayyadurai, learned counsel appearing for the 1strespondent.17. The main contention of Mr.V.Raghavachari, learned counselappearing for the appellants is that Ex.A1 does not have anystatutory value in as much as it is not a register which is to bemaintained under Section 51 of the Indian Registration Act and unlessit is a document which is liable to be maintained by a statutoryauthority in the course of discharge of his statutory functions, thelower court ought not to have placed reliance on the same. 18. The learned counsel appearing for the appellants furthercontended that since the plaintiff had executed the sale deed infavour of the wife of his counsel in respect of item 1 of the 'A'schedule property, the litigation is champertons in nature and thesuit should have been dismissed in limine. https://hcservices.ecourts.gov.in/hcservices/

19. The learned counsel appearing for the appellants wanted tomake submissions assailing the findings of the trial court negatingthe claim for adverse possession put forth by the defendants 1 to 4but as no grounds have been raised in the memorandum of grounds ofappeal questioning such finding of the trial court, this Court is ofthe view that the appellants are not entitled to advance anyarguments on such findings.20. Countering the said submissions, the learned counselappearing for the 1st respondent submitted that Ex.A1 has beensummoned and produced from the office of the Sub-Registrar and thesame is maintained under the Indian Registration Act and a perusal ofEx.A1 will shows that it contains entries relating to varioustransactions and the name of Ayyakannu Servai in patta No.221. Thelearned counsel further submitted that Ex.A1 has not been questionedby the defendants 1 to 4 while the same was marked as Exhibit in thetrial court and as rightly pointed out by the trial court thecontents of Ex.A1 has not been disputed while cross examining P.W.1.The learned counsel further submitted that only based on the entriescontained in the registers similar to Ex.A1, encumbrance certificatesare being issued by the office of the Sub Registrars. The learnedcounsel further submitted that the trial court has accepted the caseof the plaintiff that the suit properties are the ancestralproperties of Ayyakannu Servai not only on the basis of Ex.A1 butalso on the corroboration provided by Ex.A15 in which AyyakannuServai has mentioned a portion of land comprised in S.No.51/8. Thelearned counsel further drew the attention of this Court to thesuggestion put to P.W.1 in the course of his cross examination by thedefendants 1 to 4 suggesting that items 1, 2, 3, 7 & 8 of 'A'schedule properties belonged to Periyasamy Servai, father of the 4thdefendant by virtue of TKT patta issued in his favour and items 4 to6 of plaint 'A' schedule properties and items 4 to 7 of 'B' scheduleproperties also belonged to Periyasamy Servai and as such theplaintiff is not entitled to claim any right over the same.Similarly items 1,2,3,7 & 8 of the plaint 'A' schedule properties anditems 1,2,3,8 & 9 of plaint 'B' schedule properties are the separateproperties of Ayyakannu Servai and the plaintiff has no right to seeka share.21. The learned counsel appearing for the respondent furthersubmitted that since the defendants 1 to 4 though have suggested toP.W.1 that items 1,2,3,7 & 8 of 'A' schedule property and items1,2,3,8 & 9 of 'B' schedule properties are separate properties ofAyyakannu Servai and they are not entitled to claim that the suitproperties are the separate properties of Angammal wife of AyyakannuServai. It has been further suggested to P.W1 in his crossexamination that Angammal was paying kist in her name and in the nameof her husband for patta No.221.22. I have carefully considered the above submissions made by thelearned counsel on either side, the materials available on record andperused the judgment of the Court below. https://hcservices.ecourts.gov.in/hcservices/

23. The contention of the learned counsel for the appellants thatEx.A-1, which is termed as a holding register does not have anystatutory value inasmuch as it is not a register which is to bemaintained under Section 51 of the Indian Registration Act, in theconsidered view of this court, is untenable. Documents which arecompulsory registrable are enumerated in Section 17 of theRegistration Act, 1908 (hereinafter referred to as "the Act"), wherea document is employed to effectuate in all the transactionsspecified in Section 17 of the Act, such document must be registerednotwithstanding that the transaction is one which the law does notrequire to be put into writing. Part XI of the Act deals with theduties and powers of Registering Officers and the Register-books tobe kept in the several offices. Section 51 of the Act reads asfollows:-"51. Register-books to be kept in the several offices.- (1) The following books shall be kept in the severaloffices hereinafter named, namely:-A – In all registration offices - Book 1, "Register of non-testamentary documentsrelating to immovable property"; Book 2, "Record of reasons for refusal to register"; Book 3, "Register of wills and authorities to adopt";and Book 4, "Miscellaneous Register";B – In the office of Registrars - Book 5, "Register of deposits of wills".(2) In Book 1 shall be entered or filed all documentsor memoranda registered under sections 17, 18 and 89which relate to immovable property, and are not wills.(3) In Book 4 shall be entered all documents registeredunder clauses (d) and (f) of section 18 which do notrelate to immovable property.(4) Nothing in this section shall be deemed to requiremore than one set of books where the office of theRegistrar has been amalgamated with the office of aSub-Registrar."A reading of the above provisions shows that all registration officesshould maintain Book 1, which is a register of non-testamentarydocuments relating to immovable property. A reading of Section 51(2) of the Act shows that details of all documents registered underSection 17 of the Act and which relate to immovable property shall beentered in book 1. Sections 54, 55 (1) and (2) and 57 (1) and (5) ofthe Act read as follows:-"54. Current indexes and entries therein.- In everyoffice in which any of the books hereinbeforementioned arekept, there shall be prepared currentindexes of the contents of such books; and everyentry in such indexes shall be made, so far aspracticable, immediately after the registering officer https://hcservices.ecourts.gov.in/hcservices/ has copied, or filed a memorandum of, the document towhich it relates.55. Indexes to be made by registering officers, andtheir contents.- (1) Four such indexes shall be madein all registration – offices, and shall be named,respectively, Index No.I, Index No.II, Index No.III,and Index No.IV.(2) Index No.I shall contain the names andadditions of all persons executing and of all personsclaiming under every document entered or memorandumfiled in Book No.1.57. Registering Officers to allow inspection ofcertain books and indexes and to give certified copiesof entries.- (1) Subject to the previous payment ofthe fees payable in that behalf, the Books Nos.1 and 2and the Indexes relating to Book No.1 shall be at alltimes open to inspection by any person applying toinspect the same; and, subject to the provisions ofsection 62, copies of entries in such books shall begiven to all persons applying for such copies.(2) ....(3) ....(4) ....(5) All copies given under this section shall besigned and sealed by the registering officer, andshall be admissible for the purpose of proving thecontents of the original documents".A combined reading of the above said provisions of the Act shows thatwhen book 1 is kept in every office indexes of the contents of suchbook shall be prepared and every entry in such indexes shall be made,so far as practicable, immediately after the registering officer hascopied, or filed a memorandum of, the document to which it relates.Index No.I shall contain the names and additions of all personsexecuting and of all persons claiming under every document entered ormemorandum filed in Book No.1. On payment of prescribed fee anyperson applying to inspect book Nos.1 and 2 and indexes relating tobook no.1, are entitled to inspect the same and subject to theprovisions of Section 62 of the Act copies of entries in such booksshall be given to all persons applying for such copies. As perSection 57 (5) of the Act, all copies given under Section 57 of theAct shall be signed and sealed by the registering officer and shallbe admissible for the purpose of proving the contents of the originaldocuments. If Ex.A-1 is considered in the light of the above saidprovisions it could be seen that it comes within the purview ofSection 55 (2) of the Act since Ex.A-1 contains all the details ascontemplated in Section 55(2) of the Act. Therefore, the contentionof the learned counsel for the appellants that Ex.A-1 is not adocument to be maintained under any provision of the Registration Actis untenable. Whereas the contention of the learned counsel for thefirst respondent that Ex.A-1 contains all the details relating to https://hcservices.ecourts.gov.in/hcservices/ encumbrances made in respect of the properties which stood in thename of Subburaya Servai and Ayyakannu Servai is acceptable. Aperusal of Ex.A-1 shows that the following properties comprised inS.F.Nos.51/8, 316/1, 219/6, 78/12, 84/5 and 84/7 were comprised inpatta No.221 and stood in the name of Subburaya Servai and AyyakannuServai. The properties in S.F.No.216/1 had been dealt with byAyyakannu Servai by document dated 13.06.1984. Similarly, the landscomprised in Survey Nos.51/8, 72/12, 84/5 and 84/7 have been dealtwith by Angammal, Murugan and Duraisamy Servai under a documentexecuted on 26.04.1942 and registered on 11.05.1942. In respect ofan extent of 66 cents in Survey No.51/8 Ayyakannu Servai has executeda mortgage deed on 14.07.1933 in favour of Nallathambi Pathar andKesabudayar and Ex.A-15 is the certified copy of the said mortgagedeed. In respect of land comprised in Survey No.216/1, Angammal,Murugan and Duraisamy have executed a mortgage deed in favour of oneVirudambal. All the above said entries in Ex.A-1 makes it abundantlyclear that the properties dealt with by Angammal and her sons wereoriginally comprised in patta No.221 belonging to Subburaya Servaiand Ayyakannu Servai. If the properties really belong to Angammal,as her separate property, they would not have been shown as comprisedin patta No.221 as admittedly patta No.221 stood in the name ofSubburaya Servai and Ayyakannu Servai. Further, if the propertieswere the separate properties of Angammal there was no need forjoining Murugaservai, Duraisamy, the son of Angammal, Angammal andAyyakannu Servai in the execution of various documents. Theirresistable inference that could be drawn from the above saidentries in Ex.A-1 is that the properties dealt with thereunder arethe ancestral properties of Ayyakannu Servai. Ex.A-15 also showsthat Ayyakannu Servai had dealt with the properties comprised inSurvey No.51/8.24. A perusal of the evidence of P.W.1 shows that during thecross examination of P.W.1 with reference to the entries in Ex.A-1,P.W.1 has not been cross examined and the correctness of the entriesin Ex.A-1 have also not been disputed. It has not been explained byany acceptable evidence by defendants 1 to 4 as to why Murugan Servaiand Duraiswamy Servai had joined with Angammal in the execution ofthe above said documents if really the suit properties belonged toAngammal as her separate properties as claimed by defendants 1 to 4.It has also been suggested to P.W.1 that in respect of patta No.221,Angammal had paid Kists in her and in her husband's name. If really,as claimed by defendants 1 to 4, the suit properties are the separateproperties of Angammal, it is un-understandable as to how pattano.221 came to be issued in the name of Iyyakannu Servai alone.Whereas it is clear that after the death of Iyyakannu servai,Angammal was paying Kists in respect of patta no.221. It ispertinent to point out that it has been suggested to P.W.1 during hiscross-examination that item Nos.1, 2, 3, 7 and 8 of plaint 'A'schedule and items 1, 2, 3, 8 and 9 of plaint 'B' schedule are theseparate properties of Iyyakannu Servai. This particular suggestion https://hcservices.ecourts.gov.in/hcservices/ has been put to P.W.1 after making suggestion relating to theproperties belonging to Periyaswamy, the father of the fourthdefendant. The learned counsel for the first respondent relying uponthe above said suggestion made to P.W.1 submitted that defendants 1to 4 themselves have admitted that the above said items are theseparate properties of Iyyakannu Servai and defendants 1 to 4 have nocase to argue. But countering the above said submission the learnedcounsel for the appellants submitted that the said suggestion hasbeen made only by the counsel who appeared for defendants 1 to 4 inthe trial court and such suggestion it would not bind defendants 1 to4. In support of the above said contention, the learned counsel forthe appellants relied upon a decision of the Apex Court in the caseof Swami Krishnanand Govindanand Vs. M.D.Oswal Hosery (Regd.) andreported in (2002) 3 Supreme Court Cases 39, wherein in paragraph 3the Apex Court has observed as follows:-"3. Mr Jaspal Singh, learned Senior Counsel appearingfor the appellant, has vehemently contended thatstatement made by the learned counsel of the respondentacross the Bar is indeed an admission of the party and,therefore, the Additional Rent Controller recorded hissatisfaction on the basis of the admission; the orderof the Additional Rent Controller cannot thereby betreated as being without jurisdiction. We are afraid wecannot accede to the contention of the learned counsel.Whether the appellant is an institution within themeaning of Section 22 of the Act and whether itrequired bona fide the premises for furtherance of itsactivities, are questions touching the jurisdiction ofthe Additional Rent Controller. He can record hissatisfaction only when he holds on these questions infavour of the appellant. For so holding there must bematerial on record to support his satisfactionotherwise the satisfaction not based on any material orbased on irrelevant material, would be vitiated and anyorder passed on such a satisfaction will be withoutjurisdiction. There can be no doubt that admission of aparty is a relevant material. But can the statementmade by the learned counsel of a party across the Barbe treated as admission of the party? Having regard tothe requirements of Section 18 of the Evidence Act, onthe facts of this case, in our view, the aforementionedstatement of the counsel of the respondent cannot beaccepted as an admission so as to bind the respondent.Excluding that statement from consideration, there wasthus no material before the Additional Rent Controllerto record his satisfaction within the meaning of clause( d ) of Section 22 of the Act. It follows that theorder of eviction was without jurisdiction." A careful consideration of the above said observation of the Apex https://hcservices.ecourts.gov.in/hcservices/ Court shows that a statement made by the learned counsel of a partyacross the bar cannot be termed as an admission of the party. But inthe case on hand what is sought to be relied upon by the learnedcounsel for the first respondent is not a statement made by thelearned counsel for defendants 1 to 4 across the bar, but asuggestion put to P.W.1 in the course of his cross-examination. Itis presumed that all questions put to a witness by a learned counselare put as per the instructions of the parties for whom the counselis appearing and as such the above suggestion put to P.W.1 cannot beexplained away as a statement made by the learned counsel across thebar. Hence the above said decision of the Apex Court is notapplicable to the facts of this case.25. The evidence of P.W.1, entries in Ex.A-1, Ex.A-15 and theabove suggestion made to P.W.1, if taken as a whole clearly showsthat the properties described in plaint 'C' schedule excluding theproperties which have been assigned by the Government in favour ofPeriyaswamy Servai were the ancestral properties of Ayyakannu Servai.26. It is worthwhile to consider the evidence of D.W.1. Thoughdefendants 1 to 4 have claimed that the properties are separateproperties of Angammal no documentary evidence has been adduced toprove the same. D.W.1 in his cross examination has stated that theproperties belong to Angammal through her mother and the saidinformation was furnished to him by his grandmother. D.W.1 hasstated that he does not know as to whether the parents of Angammalpossessed any properties. He has also stated that he does notremember the name of Angammal's father and mother and about that hehas not asked his grandmother. He has denied the suggestion that theproperties are the ancestral properties of Muthukaruppa Servai,Subburaya Servai and Ayyakannu servai. He has also stated that theparents of Angammal purchased the properties for her and the saidinformation was furnished by his grandmother. He has also admittedthat he had not made any search for the documents. Though D.W.1 hasbeen questioned with reference to the entries in Ex.A-1, he had notstated anything disputing the correctness of the entries in Ex.A-1.As pointed out above, D.W.1 has also not been cross examined aboutthe correctness of the entries contained in Ex.A-1.27. For the above said reasons, this Court is of the consideredview that the plaintiff has proved that the properties in respect ofwhich the plaintiff is seeking for partition were the ancestralproperties of Ayyakannu Servai and the said properties are not theseparate properties of Angammal.28. The trial court has considered the oral and documentaryevidence in the proper perspective and has rightly held that theplaintiff has not proved the oral partition said to have taken placein 1959 between her and Angammal. The trial court has rightlypointed out that since the plaintiff and Angammal are co-sharersadverse possession cannot be claimed by defendants 1 to 4 as D.Ws.1to 4 are claiming only through Angammal. The trial court has also https://hcservices.ecourts.gov.in/hcservices/ rightly pointed out that defendants 1 to 4 have not pleaded ouster.Since the plea of ouster has not been raised in the pleadings,defendants 1 to 4/appellants herein have not chosen to question thecorrectness of the findings recorded by the trial court on thequestion of adverse possession.29. After hearing was over and judgment was reserved the learnedcounsel for the appellants have circulated the written argumentscalling it as additional written arguments after serving a copy ofthe same on the learned counsel for the first respondent. Thelearned counsel for the first respondent has also filed the writtensubmissions. 30. I have carefully considered the submissions contained in thewritten arguments submitted by the learned counsel on either side.In respect of the submissions contained in the written arguments ithas to be pointed out that no argument was advanced by the learnedcounsel for the appellants in the course of hearing. It has also tobe pointed out that no such ground has been raised in the memorandumof grounds of appeal. Therefore the learned counsel for the firstrespondent has raised an objection that the said submission cannot beentertained.31. In the written arguments, the learned counsel for theappellants has submitted that even assuming that the suit propertiesare the ancestral properties, if it is proved that the plaintiff isin possession after her husband's death, she is entitled to only 1/4thshare in the suit properties. If the plaintiff was not in possessionafter the death of her husband, she is not entitled to any share. Itis further contended that in the year 1952, the plaintiff's husbanddied and the plaintiff will not have any right over the share of thejoint family properties except the right of maintenance and death ofDuraisamy, the husband of the plaintiff, his half share would go toMurugan, the other son of Ayyakannu Servai and after the death ofDuraisamy, Murugan had become the absolute owner of the entire share.In the year 1954, Murugan died and so his mother-Angammal would getlimited right over the entire properties and the limited right of themother would amount to an enlarged interest by Section 14(1) of theHindu Succession Act. It is further submitted that P.W.1 himself hasadmitted that immediately after the death of the plaintiff's husband,she went to her brother's house and that would show that theplaintiff would not be entitled to any share over the suitproperties. 32. The learned counsel for the first respondent in his writtensubmissions, as stated above, has raised the objection that since nosuch ground has been raised in the memorandum of grounds of appeal,the above said contention of the learned counsel for the appellantcould not be entertained. Without prejudice to the above saidcontention it is submitted by the learned counsel for the firstrespondent that the plaintiff is entitled to half share by Section 3of the Hindu Women's Right to Property Act, 1937 in her capacity as a https://hcservices.ecourts.gov.in/hcservices/ sole widow of her husband-Duraiswamy who died in the year 1952.Duraiswamy's mother is not entitled to any share under the provisionsof the Hindu Women's Right to Property Act, 1937. Though specificpleading has been made in paragraph 5 of the plaint regarding theapportionment of share the same has not been specifically denied ordealt with in the written statement or in the additional writtenstatement. It is further submitted that the contention of thelearned counsel for the appellant that the plaintiff is entitled onlyto an extent of ¼-th share in the suit properties even if the suitproperties are held to be ancestral is not based on any legallyrecognised principles of Hindu Law, but is opposed to expressprovisions contained in the Hindu Women's Right to Property Act,1937. It is further contended that the contention of the learnedcounsel for the appellant that the plaintiff would get only right tomaintenance is wholly unsustainable in law besides being misleadingin the light of Section 3 of the Hindu Women's Right to Property Act,1937. 33. I have carefully considered the above said submissionscontained in the written arguments. The preliminary objection of thelearned counsel for the first respondent has to be dealt with firstas to whether the contention put forth by the learned counsel for theappellants can be entertained or not. 34. It is settled law that if the facts proved and found asestablished are sufficient to raise a new plea under Order 41 Rule 2of the Code of Civil Procedure it is not only competent to butexpedient in the interest of justice to entertain that plea. Butwhen the question is not a pure question of law but a question offact, the Court should not allow such question to be raised for thefirst time. Similarly, the appellate court ought not to allow aparty to rely upon a point which was not raised in the Court of firstinstance and which requires an investigation into facts. It is alsosettled position of law that a Court of appeal is not entitled toallow an appellant to raise a new case, which is dependent for itsdetermination on facts which have not been investigated and to whichthe parties have not directed their evidence. A point not explicitlytaken in the memorandum of appeal to raise but raised at the time ofargument cannot be entertained. It is also settled proposition oflaw that an appellate court is quite competent to base its decisionupon a point arising out of the pleadings of the parties, if there isevidence on record as regards the same, although it is neitherexpressly taken before the Court. Therefore, it has to be consideredwhether the above said contention put forth by the learned counselfor the appellants is a pure question of law or a question of fact.Though the above said contention has neither been raised before thetrial court nor raised in the memorandum of grounds of appeal norargued during the course of hearing, this Court is of the consideredview that the said contention is a pure question of law which can bedecided on the basis of the findings recorded by the trial court.Further, for considering the said contention, no further https://hcservices.ecourts.gov.in/hcservices/ investigation into the facts is necessary.35. The above said contention of the learned counsel for theappellants as rightly contended by the learned counsel for the firstrespondent is against the provisions contained in Section 3(2) of theHindu Women's Right to Property Act, 1937. The trial court hasrecorded a finding that the properties in respect of which theplaintiff is seeking partition have been found to be the ancestralproperties of Ayyakannu Servai and as such on the death of herhusband Duraisamy, the plaintiff being his widow takes his interestin the family property. The interest of the widow, namely theplaintiff, viz-a-vis her husband's undivided interest arises notby inheritance nor by survivorship but by statutory substitution aslaid down in A.I.R. 1967 Supreme Court 232 (Satrughan Vs.Sabujitpari). As per Section 3(3) of the Hindu Women's Right toProperty Act, 1937 any interest devolving on a Hindu Widow under theprovisions of Section 3 shall be the limited interest known as aHindu Woman's estate, provided however that she shall have the sameright of claiming partition to a male owner. It is pertinent topoint out that the trial court on a consideration of Exs.A-2 to A-12has found that the plaintiff was in joint possession of theproperties with defendants 1 to 4. Therefore at the coming intoforce of the Hindu Succession Act, 1956 and as provided under Section14(1) of the said Act, the limited estate of the plaintiff would havegot enlarged into her absolute property. 36. It is also pertinent to point out that the said finding ofthe trial court that the plaintiff was in joint possession of theproperties with defendants 1 to 4 has not been questioned in thememorandum of grounds of appeal. For the said reasons, thecontention of the learned counsel for the appellants are liable to berejected and accordingly rejected. As rightly pointed out by thelearned counsel for the first respondent the submission made by thelearned counsel for the appellants in the written arguments is notonly opposed to the provisions contained in the Hindu Women's Rightto Property Act, 1937, but it is also misleading, since under theHindu Women's Right to Property Act, 1937, the mother of the Hindumale who died intestate is not entitled to get any right in theproperty left behind by her deceased son. 37. For the above said reasons, the above appeal fails and thesame is dismissed with costs of Rs.10,000/- (Ten thousand only).Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ srk/kkToThe Sub-Court, Vriddhachalam. 1 cc To Mr.V.Raghachari, Advocate, SR.652631 cc To Mr.V.Ayyadurai, Advocate, SR.65244A.S.No.943 of 1993KA(CO)SRA(5/11/2008)