Ganthimathi Ammal v. Saprudin & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 5.11.2009CoramThe Hon’ble Mr.Justice M.JEYAPAULSecond Appeal Nos.1264 and 1305 of 1995Ganthimathi AmmalAppellant in S.A.No.1264/95 /Respondent in S.A.No.1305/95vs. 1. Saprudin2. Halimi Beevi3. Sirajudin4. Hainul Araf5.Ameerudin6. Bagarunisa BegumRespondents in S.A.No.1264/95 /Appellants in S.A.No.1305/95For appellant in S.A.No.1264/95and respondent in S.A.No.1305/95 : Mrs.Emily Venkatesan for Mr.T.R.RajaamanFor respondents in S.A.No.1264/95and appellants in S.A.No.1305/95 : Mr.K.Chandramouli, Senior Counsel for Mr.A.MuthukumarPrayer:- Second Appeal No.1264 of 1995 against the judgment anddecree of the learned Subordinate Judge, Nagapattinam dated3.1.1995 made in A.S.No.10 of 1993 preferred against the judgmentand decree of the learned District Munsif, Nagapattinam dated31.12.1991 made in O.S.No.202 of 1989.Second Appeal No.1305 of 1995 against the judgment and decreeof the learned District Judge, Nagapattinam dated 31.7.1995 made inA.S.No.226 of 1993 preferred against the judgment and decree of thelearned Sub Judge, Nagapattinam dated 17.9.1993 made in O.S.No.39of 1989. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENTThe plaintiff filed a suit for recovery of possession of theproperty in S.No.1282/1 as against the defendants in O.S.No.39 of1989. Having suffered a decree for recovery of possession bothbefore the Trial Court as well as before the appellate court, thedefendants have preferred S.A.No.1305 of 1995. The plaintiff, wholaid a suit for permanent injunction with respect to the remainingpart of the property in S.No.1282/1, having been non-suited by theTrial Court as well as by the first appellate court, preferredS.A.No.1264 of 1995. 2. To avoid confusion, the parties are referred to asplaintiff and defendants as the case may be as the plaintiff hasfiled S.A.No.1264 of 1995 and the defendants have filed S.A.No.1305of 1995.3. The plaintiff in both the suits has contended that theproperty comprised in S.No.1282/1, Ward No.1, Block No.31 measuring56106 sqft absolutely belonged to one Kulandaivelu Chettiar whopurchased the same by means of a registered sale deed dated 12thOctober 1946 from one Govindasamy Nadar and his minor son Ramaianand another unnamed minor son. The patta for the property standsin the name of Kulandaivelu Chettiar who died leaving behind hiswife Gandhimathi as the only legal heir. The plaintiff GandhimathiAmmal, being the sole heir of Kulandaivelu Chettiar, has been inpossession and enjoyment of the suit property. The defendants,taking advantage of the fact that they are residing closeby thesuit property, encroached upon 2223 sqft in S.No.1282/1. Theremaining extent of the suit property has been in possession andenjoyment of the plaintiff. Therefore, the plaintiff has filed asuit in O.S.No.39 of 1989 praying for recovery of possession of2223 sqft in S.No.1282/1 and for permanent injunction with respectto the remaining portion of the property. 4. In the written statement, the defendants, having disputedthe ownership of Kulandaivelu Chettiar, have contended that theoriginal owner Paramathal, wife of Marimuthu Nadar, who purchasedthe entire extent of the suit property under the registered saledeed dated 27.5.1907, usufructuarily mortgaged the suit property infavour of one Gulam Hyder Saheb for a sum of Rs.2000/= under a deeddated 16.12.1930. The said document was not registered and wasalso not duly attested. Neither Paramathal nor her son GovindasamyNadar ever redeemed the property form the usufructuary mortgage andrecovered possession thereof. After the demise of Gulam Hyder https://hcservices.ecourts.gov.in/hcservices/ Saheb, his only son Mohamed Ghouse continued to enjoy the suitproperty. After the death of the only son of the usufructuarymortgagee Gulam Hyder Saheb, his brothers viz., Gudumiyan, SheikKhader, Mohamed Razak and Mohamed Hanif got into possession of theentire property and had been in enjoyment of the same. After thedeath of Mohamed Hanif, his son, the first defendant, got intopossession of the entire property and has been enjoying the same.The defendants deny the allegation that they trespassed upon thesuit property taking advantage of the proximity of their propertyin S.No.1282/2. They have also been in possession adversely to theright, title and interest of Paramathal and her son GovindasamyNadar. Therefore, the defendants sought for dismissal of both thesuits. 5. The Trial Court, having adverted to the evidence on recordin O.S.No.39 of 1989, rejected the plea of the defendants thatParamathal usufructuarily mortgaged the entire suit property underthe deed dated 16.12.1930 in favour of Gulam Hyder Saheb. It alsoheld that the plaintiffs got right and title over the suit propertyunder the sale deed dated 12.10.1946, rejecting the plea of thedefendants that they have been in possession and enjoyment of thesuit property for over the statutory period. The Trial Court,ultimately, granted a decree for delivery of possession as prayedfor by the plaintiff in O.S.No.39 of 1989. The first appellatecourt concurred with the findings of the Trial Court and rejectedthe plea of the defendants that the suit is barred by limitationunder the old Limitation Act. It has also been held that Ex.D1,the alleged usufructuary mortgage deed, was fabricated by thedefendants for the purpose of the suit. Having held that thedefendants encroached upon a portion of the suit property only afew days earlier to the suit, dismissed the appeal preferred by thedefendants in A.S.No.226 of 1993 and upheld the finding of theTrial Court that the plaintiff was entitled to a decree forrecovery of possession. 6. The Trial Court, in O.S.No.202 of 1989, having adverted tothe various documents produced on the side of the defendants,arrived at a decision that the defendants have been in possessionand enjoyment of the suit property and that, therefore, theplaintiff is not entitled to an order of injunction. The firstappellate court, in A.S.No.10 of 1993, confirmed the verdict of theTrial Court basing reliance upon various documents produced by thedefendants to show their possession and confirmed the findings ofthe Trial Court. https://hcservices.ecourts.gov.in/hcservices/

7. The following substantial questions of law have been framedwhile admitting the second appeals. S.A.No.1264 of 1995:-"1. Whether the refusal of injunction in favour of theappellant is proper, since the property in dispute isa vacant site?2. Whether the lower appellate court has erred indismissing the appeal when the usufructuary mortgageset up by the defendant has not been accepted?"S.A.No.1305 of 1995:-"Whether the lower appellate court has correctlyappreciated Exs.A1 and B25 in holding possession infavour of the plaintiff?"8. Learned counsel appearing for the plaintiff would contendthat the sale deed Ex.A1 dated 12.10.1946 would show that theplaintiff's husband Kulandaivelu Chettiar purchased the entire suitproperty from Govindasamy Nadar and his minor sons. The documentsfiled on the side of the defendants do not reflect the suit surveynumber. Therefore, much reliance cannot be placed on the variousHouse Tax Receipts produced by the defendants. The courts belowhave categorically held that Ex.B1 dated 16.12.1930, the allegedusufructuary mortgage deed, executed by Paramathal in favour ofGulam Hyder Saheb was found to be a fake document. Therefore, thedefendants cannot claim any right over the suit properties on theground that they have been in possession of the same based on theusufructuary mortgage alleged to have been executed by Paramathalin favour of the defendants' predecessor. It is also contendedthat the old Limitation Act, 1908 would not apply to the case onhand as the suits have emanated only after the new Limitation Act,1963 was enacted. As the defendants have not shown before thecourts below that they have perfected title to the suit property bylong adverse possession and enjoyment of the same, they cannotacquire any title to the suit property.9. Learned Senior Counsel appearing for the defendants wouldsubmit that the plaintiff has not filed any document to prove herpossession. The documents produced on the side of the defendantswould establish that they have been in possession and enjoyment ofthe suit property. As per Article 144 of the Indian LimitationAct, 1908 read with section 31 of the Limitation Act, 1963, thesuit filed by the plaintiff seeking recovery of possession is https://hcservices.ecourts.gov.in/hcservices/ hopelessly barred by limitation, as twelve years period forclaiming delivery of possession had lapsed long prior to the cominginto effect of the present Limitation Act, 1963. At any rate,Ex.B2 marked in A.S.No.10 of 1993 in O.S.No.202 of 1989 and Ex.B25marked in O.S.No.39 of 1989 would seal the fate of the case as thehusband of the plaintiff had relinquished his right in the suitproperty as he had lent his name benami. It is his furthersubmission that the usufructuary mortgage created under Ex.A3 byGovindasamy Nadar as on 8.7.1942 was not discharged so far.Therefore, he would submit that the plaintiff has no right in thesuit property and she has also failed to establish that she hasbeen in possession of the suit property. 10. Both the courts below in both the suits have categoricallyheld that Ex.B1, the alleged usufructuary mortgage deed dated16.12.1930, is a concocted document. On a careful perusal ofEx.B1, it is found that the defendants have surreptitiously made anattempt to correct the Block Number, Survey Number and the extentof the property. As rightly held by both the courts below in boththe suits, the defendants have made an attempt to project Ex.B1 asthough Paramathal the original owner of the property, even duringher life time, chose to usufructuarily mortgage the suit propertyto the predecessor of the defendants by name Gulam Hyder Saheb.That apart, a mortgage deed is required to be attested andregistered. Neither was Ex.B1 attested nor was it registered asmandated by law. Further, the sale deed, Ex.A1 dated 12.10.1946specifically refers to the usufructuary mortgage created in favourof one Kalabamudai Servai of Nagapattinam. If at all there hadbeen any usufructuary mortgage created by Paramathal in favour ofGulam Hyder Saheb, Ex.A1 would have some reference thereto. Forall these reasons, I find that both the courts below in both thesuits, have rightly held that Ex.B1 cannot be relied upon for anypurpose as it is not only a concocted document but also aninadmissible document in the eye of law. 11. Both the courts below in both the suits have held that thesuit property was sold in favour of Kulandaivelu Chettiar, husbandof the plaintiff by Govindasamy Nadar and his minor son Ramaian andhis another unnamed minor son having got the property fromParamathal under Ex.A1 dated 12.10.1946. On a perusal of Ex.B22marked in A.S.No.10 of 1993 in O.S.No.202 of 1989 at the appellatestage and Ex.B25, the very same document marked in O.S.No.39 of1989, it is found that Kulandaivelu Chettiar, who purchased thesuit property under Ex.A1, relinquished all his rights in the suitproperty in favour of A.M.P.Subbaraya Chettiar as the said property https://hcservices.ecourts.gov.in/hcservices/ was purchased in the name of Kulandaivelu Chettiar only as a benamiof A.M.P.Subbaraya Chettiar. 12. The learned counsel appearing for the plaintiff wouldsubmit that the said document dated 17.6.1957 was not produced fromproper source. Secondly, no relinquishment deed could be executedto disown the right in the property acquired under benamitransaction. 13. Firstly, it is found that the aforesaid document is not aoriginal document produced from the custody of the defendants.The defendants are entitled to secure a certified copy of anydocument for that matter to challenge the right and title projectedby the plaintiff. It is found that Ex.B25 marked in O.S.No.39 of1989 is a duly stamped and registered document. The extinguishmentof right under the aforesaid deed was registered as contemplatedunder section 17 of the Registration Act. Therefore, I am notinclined to accept the submission made by the learned counselappearing for the plaintiffs that there cannot by anyextinguishment of the right acquired under benami transaction. 14. Ex.B25 marked in O.S.No.39 of 1989 completely seals thefate of the case of the plaintiff that the plaintiff got thisproperty through her husband who purchased it under Ex.A1. 15. On a careful analysis of Ex.A1 and Ex.B25, it is foundthat Kulandaivelu Chettiar, the husband of the plaintiff was only aname lender for the benami transaction clinched by A.M.P.SubbarayaChettiar. A.M.P.Subbaraya Chettiar got back the right and title tothe suit property purchased by him benami in the name ofKulandaivelu Chettiar, the husband of Gandhimathi Ammal, theplaintiff herein under Ex.B25 dated 17.6.1957 marked in O.S.No.39of 1989. Therefore, the plaintiff has not derived any right ortitle to the suit property from her husband Kulandaivelu Chettiar,who has lent his name for the purchase of the suit property byA.M.P.Subbaraya Chettiar under Ex.A1 dated 12.10.1946 andrelinquished the entire right and title to the said property infavour of A.M.P.Subbaraya Chettiar himself under the aforesaidrelinquishment deed, Ex.B25. 16. The courts below in the suit in O.S.No.202 of 1989, on acareful perusal of the field register extract, house tax receipt,property tax receipt and land revenue receipt, has categoricallygiven to a finding that the defendants have been in possession andenjoyment of the property described in O.S.No.202 of 1989. It is https://hcservices.ecourts.gov.in/hcservices/ not in dispute that the entire property in Survey No.282/1 measures56106 sqft. The suit for recovery of possession was filed for 2223sqft and the suit for permanent injunction was filed for theremaining extent. The plaintiff, has not produced any document toshow that she has been in possession and enjoyment of the suitproperty. The aforesaid voluminous documents referred to by thecourts below would establish that the defendants have been inpossession and enjoyment of not only of the property described inO.S.No.39 of 1989 but also the property described in O.S.No.202 of1989. 17. Ex.A1 would refer to the sale of the property subject tothe usufructuary mortgage created in favour of Kalabamudai Servai.The husband of the plaintiff was burdened with the liability ofdischarging the said usufructuary mortgage. The existence ofusufructuary mortgage implies the enjoyment of the property by theusufructuary mortgagee. The usufructuary mortgage created in thename of Kalabamudai Servai has been marked as Ex.A3 in O.S.No.39 of1989. There is no indication in Ex.A3 that the said usufructuarymortgage in favour of Kalabamudai Servai was discharged. PW1 wouldmodestly attempt that he was not aware whether the usufructuarymortgage created in favour of Kalabamudai Servai was discharged. 18. Though the husband of the plaintiff purchased the propertyunder Ex.A1, the entire right and title flowed to the husband ofthe plaintiff got extinguished under the deed of relinquishmentexecuted by him under Ex.B25 in O.S.No.39 of 1989. Even at the timeof execution of the sale deed Ex.A1, the possession of the suitproperty was with Kalabamudai Servai in his capacity asusufructuary mortgagee. There is no evidence to show that the saidusufructuary mortgage in favour of Kalabamudai Servai wasdischarged. The plaintiff has not produced materials to establishthat she had been in possession and enjoyment of the suit property.Whereas the defendants have filed documents to establish that theyhave been in possession and enjoyment of the suit property. 19. Though there is virtually no documents to show thepossession of the suit property by the plaintiff, the Trial Courtin O.S.No.39 of 1989 and the first appellate court in A.S.No.226 of1993 have held that the plaintiff, having got the suit propertyfrom her husband, who purchased the same under Ex.A1, has been inpossession and enjoyment of the suit property and just before thefiling of the suit, the defendants trespassed upon the suitproperty and took possession of the same. The Trial Court inO.S.No.39 of 1989 and the first appellate court in A.S.No.226 of https://hcservices.ecourts.gov.in/hcservices/ 1993 have failed to refer to Ex.B25 which completely extinguishesthe right and title of Kulandaivelu Chettiar, the husband of theplaintiff, flowed under Ex.A1.20. Though there is a reference in Ex.A1 that the possessionof the property was handed over to Kulandaivelu Chettiar at thetime of execution of the sale deed, the fact remains that theproperty was already usufructuarily mortgaged to Kalabamudai Servaiunder Ex.B3 dated 8.7.1942 marked in O.S.No.39 of 1989. Therefore,when the document Ex.A1 was executed by Govindasamy Nadar and hisminor sons, Kulandaivelu Chettiar would not have taken possessionof the property. The entire case of the plaintiff received a jolton production of Ex.B25 dated 17.6.1957 marked in O.S.No.39 of 1989to establish that the plaintiff has got no right from her husbandas her husband Kulandaivelu Chettiar had completely relinquishedhis right and title in the suit property. To top it all, nodocument was filed to establish either Kulandaivelu Chettiar or theplaintiff has been in possession and enjoyment of the suitproperty. 21. A very interesting question of law was raised by thelearned Senior Counsel appearing for the defendants. It issubmitted by him that Articles 142 and 144 of the Limitation Act1908 read with sections 31 of the Limitation Act, 1963 would applyto the facts and circumstances of the case and not Articles 64 and65 of the Limitation Act, 1963. The point he derives at is that thesuit is barred by limitation even before the coming into force ofthe present Limitation Act, 1963 and therefore, no suit can be laidfor delivery of possession invoking Articles 64 and 65 of theLimitation Act, 1963. 22. It is relevant to refer to Articles 142 and 144 of theLimitation Act, 1908 and Articles 64 and 65 and section 31 of thepresent Limitation Act, 1963. The IndianLimitationAct, 1908Description of SuitPeriod ofLimitationTime from whichperiod begins torunArticle 142For possession ofimmovable property whenthe plaintiff, while inpossession of theproperty, has beendispossessed or hasdiscontinued thepossession.Twelveyears The date of thedispossession ordiscontinuance https://hcservices.ecourts.gov.in/hcservices/ The IndianLimitationAct, 1908Description of SuitPeriod ofLimitationTime from whichperiod begins torunArticle 144For possession ofimmovable property orany interest thereinnot hereby otherwisespecially provided for.TwelveyearsWhen thepossession ofthe defendantbecomes adverseto theplaintiff.TheLimitationAct, 1963Description of suitPeriod ofLimitationTime from whichperiod begins torunArticle 64For possession ofimmovable propertybased on previouspossession and not ontitle, when theplaintiff while inpossession of theproperty has beendispossessed.TwelveyearsThe date ofdispossessionArticle 65For possession ofimmovable property orany interest thereinbased on titleTwelveyearsWhen thepossession ofthe defendantbecomes adverseto theplaintiff.THE LIMITATION ACT, 1963SECTION 31: Provision as to barred or pending suits, etc. - Nothingin this Act shall, -(a) enable any suit, appeal or application to beinstituted, preferred or made, for which period oflimitation prescribed by the Indian Limitation Act, 1908(9 of 1908), expired before the commencement of this Act;or(b) affect any suit, appeal or application instituted,preferred or made before, and pending at, suchcommencement.23. The observation made by the Supreme Court in SAROOP SINGHv. BANTO & OTHERS ((2005) 8 SCC 330) was referred in the laterjudgment in M.DURAI v. MADHU AND OTHERS (2007 SAR (CIVIL) 157)which reads as follows:- https://hcservices.ecourts.gov.in/hcservices/ "The statutory provisions of the Limitation Act haveundergone a change when compared to the terms ofArticles 142 and 144 of the Schedule appended to theLimitation Act, 1908, in terms whereof it wasimperative within twelve years preceding the date ofinstitution of the suit. However, a change in legalposition has been effected in view of Articles 64and 65 of the Limitation Act, 1963. In the instantcase, the plaintiff-respondents have proved theirtitle and thus, it was for the first defendant toprove acquisition of title by adverse possession.As noticed hereinbefore, the first defendant-appellant did not raise any plea of adversepossession. In that view of the matter the suit wasnot barred."24. Therefore, under the old law, in terms of Articles 142 and144 of the schedule appended to the Limitation Act, 1908, theplaintiff is bound to establish not only his title but also hispossession within 12 years preceding the date of institution of thesuit. The aforesaid Articles had undergone a change in view of theenactments of Articles 64 and 65 of the Limitation Act, 1963. Asper the present Limitation Act, 1963, the moment the plaintiffestablishes his title, the burden shifts on the defendant to proveprescription of title by adverse possession. 25. Section 31 of the Indian Limitation Act, 1963 would applyonly where the period of limitation prescribed under the old Actexpired even before the commencement of the new Act. 26. As per the terms of Articles 142 and 144 of the oldLimitation Act, the plaintiff was bound to prove his title as alsopossession within 12 years preceding the date of institution of thesuit. 27. As the clear period of 12 years prescribed under Articles142 and 144 of the old Limitation Act spans upto the institutionof the suit, the period of Limitation prescribed therein will notapply to the suits filed after 12 years from the date of expiry ofthe old Limitation Act. Section 31 of the Limitation Act 1963would apply only in case where the clear period of limitationprescribed expired before the commencement of the present Act. Asthe period prescribed for claiming adverse possession does notautomatically expire on the date of commencement of the new Act andthe adverse possession of 12 years can be established preceding the https://hcservices.ecourts.gov.in/hcservices/ institution of the suit, section 31 of the Limitation Act, 1963will not have any application to the facts of the case. 28. In the present case, these suits have been filed in theyear 1989. Therefore, the submission made by the learned SeniorCounsel appearing for the defendants that Articles 142 and 144 tothe schedule appended to the Indian Limitation Act, 1908 alonewould apply and not Articles 64 and 65 of the present LimitationAct, 1963 stands rejected.29. At any rate, in the present case, the plaintiff is not ina position to establish her title to the suit property. Herpossession also was not established by producing substantialmaterials. Whereas, the defendants have established that they havebeen in possession and enjoyment of the suit property. Theplaintiffs are not entitled to declaration of title and delivery ofpossession in respect of part of the property in S.No.1282/1 andalso for permanent injunction in respect of the remaining portionof the property in the said survey number. 30. Therefore, the judgments passed in O.S.No.202 of 1989 andA.S.No.10 of 1983 by the Trial Court and the first appellate courtrespectively stands confirmed and consequently, S.A.No.1264 of 1995is dismissed. The judgments passed in O.S.No.39 of 1989 andA.S.No.226 of 1993 by the Trial Court and the first appellate courtrespectively stands set aside and consequently, S.A.No.1305 of 1995stands allowed. There is no order as to costs in both the appeals. Sd/- Asst.Registrar. /true copy/ Sub Asst.Registrar.ssk. To1. The District Judge, Nagapattinam.2. The Subordinate Judge, Nagapattinam. 3. The District Munsif, Nagapattinam. https://hcservices.ecourts.gov.in/hcservices/

4. The Record KeeperVR Section, High Court, Madras2 ccs to Mr.T.R. Rajaraman, Advocate, SR. 59279, 592772 ccs to Mr.A. Muthukumar, Advocate, Sr. 58872, 58871S.A.Nos.1264 and1305 of 1995 JRG (CO)kk 16/12