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High Court of Judicature at Madras
THE HONOURABLE MRS. JUSTICE R. BANUMATHI & THE HONOURABLE MR. JUSTICE B. RAJENDRAN
Pongiammal & Others
Versus
Dr. S.M. Palaniappan & Others
A.S. No. 25 of 2004 and A.S. No. 906 of 2004 and Cross Objection No. 46 of 2004
Decided On : 01-07-2010
ADVERSE POSSESSION - RES JUDICATA - WILL - EXECUTION AND ATTESTATION - SUSPICIOUS CIRCUMSTANCES - PROOF - BURDEN - MESNE PROFITS - LIMITATION - JOINT POSSESSION - ACCOUNTING.
Fact of the Case:
Appellant (1st defendant) filed a suit for declaration of her exclusive right over the suit properties contending that in the family arrangement in 1947 among two other sisters agreed that all properties left by Kaliammal (senior) should belong to 1st defendant. After an elaborate trial, the said suit was dismissed on 211. 1993. Appeal preferred in A.S. No. 2 of 1994 also came to be dismissed on 8. 1995. Second Appeal has been preferred in S.A. No. 809 of 1996 and the same was also disposed on 211. 2000. As per the decision in the suit and appeal, plaintiffs are deemed to be in joint possession of the suit properties. 1st plaintiffs – Karunaiammal died on 30.5.1999. The Power Agent son of Kaurnaiammal filed petition to implead his as 7th plaintiff. 7th plaintiff filed suit for partition claiming to be entitled to 1/3rd share and plaintiffs 2 to 6 together are entitled to 1/3rd share and 1st defendant is entitled to 1/3rd share.
Finding of the Court:
1. The plea of adverse possession is not open to the appellant as it was given up in the earlier suit and the family arrangement pleaded by the appellant was disbelieved throughout. 2. The Will has not been duly proved as there are suspicious circumstances in the execution and registration of the Will, and the sound disposing state of mind of the testator has not been properly proved. 3. The plaintiffs and the 2nd defendant are entitled to past mesne profits for a period of 3 years prior to the filing of the suit.
Issues: 1. Whether the adverse possession claimed by the first defendant is true, valid and correct? 2. Whether the suit property is joint family property? 3. Whether the plaintiff is entitled to get a partition and the mesne profits and other reliefs? 4. Whether the execution of Will has been duly proved by the 2nd plaintiff? 5. Whether the trial Court was right in holding that the execution of the Will has not been satisfactorily proved by the 2nd plaintiff and that the Will is surrounded by suspicious circumstances? 6. Whether the plaintiffs are entitled to past mesne profits, if so, would it enure to the benefit of 2nd defendant.
Ratio Decidendi: 1. The plea of adverse possession is not open to the appellant as it was given up in the earlier suit and the family arrangement pleaded by the appellant was disbelieved throughout. 2. The Will has not been duly proved as there are suspicious circumstances in the execution and registration of the Will, and the sound disposing state of mind of the testator has not been properly proved. 3. The plaintiffs and the 2nd defendant are entitled to past mesne profits for a period of 3 years prior to the filing of the suit.
Final Decision: The Appeals in A.S. No. 25 of 2004 and 906 of 2004 are dismissed without costs and insofar as the Cross Objection No. 46 of 2004 is concerned, the same is partly allowed in terms of observation noting that the plaintiffs and the second defendant are entitled to the past mesne profits also.
Per B. RAJENDRAN, J.
These appeals arise out of the Judgment in O.S. No. 16 of 2002 decreeing plaintiffs suit passing Preliminary decree for partition granting 1/3rd share to plaintiffs 2 to 6 and 1st defendant/Appellant and 1/6th share to each of 7th plaintiff and 2nd defendant. Unsuccessful 1st defendant is Appellant in A.S. No. 25 of 2004. Being aggrieved by disbelieving of Exhibit A-1-Will and directing allotment of 1/6th share to him, 7th plaintiff has filed A.S. No. 906 of 2004. Cross Objection No. 46 of 2004 in A.S. No. 25 of 2004 filed by plaintiffs 2 to 6. For convenience, the parties are referred as per their array in the original rank.
2. Since both the Appeals and Cross Objection arise out of the same judgment, both the Appeals and Cross Objection were taken up together and disposed of by this Common Judgment.
3. Plaintiffs and defendants are related as under:
Kaliammal (Senior) [Died in 1947]
W/o Kalianna Gounder |
…………………………………………………………………………………………..
| | | |
Kaliammal Karunaiammal Palaniammal Pongiammal
(died on 110. 56) (died on 30.5.99) (died on 1942) (1st Defendant)
| (1st Plaintiff)
|
………………………………………………………………………………………………………………………..
| | | | |
Palaniappan Kandappan Kaliammal Valliammal Kandayal
(P2) (P3) (P4) (P5) (P6)
4. Thesuit properties are the properties of Kaliammal (senior) which she obtained as per the Will dated 112. 1917 ands as per the settlement deed dated 4. 1933 executed by her husband. On the death of Kaliammal (senior) in the year 1947, the estate left by her devolved on her daughters viz., Kaliammal (junior), 1st plaintiff and 1st defendant and each daughter got 1/3rd share in the estate. On the death of Kaliammal (junior) as well as her husband, 1/3rd share of Kaliammal (junior) has devolved on plaintiffs 2 to 6. Case of plaintiffs is that suit properties were all along treated as joint properties of plaintiffs and defendants. 2nd plaintiff while he was a M.L.A., during 1971-76 used the house as his residence and was in enjoyment of co-owner. 1st defendant filed suit O.S. No. 469 of 1990 seeking for declaration of her exclusive right over the suit properties contending that in the family arrangement in 1947 among two other sisters agreed that all properties left by Kaliammal (senior) should belong to 1st defendant. After an elaborate trial, the said suit O.S. No. 469 of 1990 was dismissed on 211. 1993. Appeal preferred in A.S. No. 2 of 1994 also came to be dismissed on 8. 1995. Second Appeal has been preferred in S.A. No. 809 of 1996 and the same was also disposed on 211. 2000. As per the decision in the suit and appeal, plaintiffs are deemed to be in joint possession of the suit properties. 1st plaintiffs – Karunaiammal died on 30.5.1999. The Power Agent son of Kaurnaiammal filed petition to implead his as 7th plaintiff.
5. Case of 7th plaintiff is that while the 1st plaintiff was in a sound disposing state of mind executed Exhibit A-1-Will on 18. 1993 bequeathing her 1/3rd share in favour of 7th plaintiff. Sister of 7th plaintiff has been impleaded as 2nd defendant, plaintiffs filed suit for partition claiming to be entitled to 1/3rd share and plaintiffs 2 to 6 together are entitled to 1/3rd share and 1st defendant is entitled to 1/3rd share.
6. 1st defendant filed written statement contending that husband of Kaliammal (senior) had performed the marriage of hi two elder daughters viz., Kaliammal (junior) and Karunaiammal, the deceased 1st plaintiff into affluent families. He had executed settlement deed on 4. 1993 in favour of his wife. At that time, he had two other daughters to give away in marriage. However, he died without giving them in marriage. After the death of Kalianna Gounder, Kaliammal (senior) had to get her two younger daughters married and as she could not afford to be (sic) given them in marriage in affluent families. Daughter Palaniammal was given in marriage to Peria Gounder and Palaniammal died within two years after her marriage. After the death of Kaliamm
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