IMPORTANT POINT
Enlargement of woman estate under Section 14 of Hindu Succession Act, 1956 is a mixed question of fact and law.

Dr. G. Jayachandran, J.—The defendants in the suit are the appellants before this Court. This appeal is directed against the reversing judgment of the first appellate Court in the suit filed for declaration, title and possession. While the trial Court dismissed the suit, the first appeal was allowed and the suit was decreed by the first appellate Court.

2. The parties are described as per their rank and status shown in the original suit.

3. The brief facts leading to the second appeal are as follows: As per plaint, the plaintiff has purchased the suit property on 28.08.1962 from one T.R.Rajaraman and he is in possession and enjoyment of the same. While so, the defendants are trying to tresspass in to the suit property and claiming right over the suit property. The second defendant is brother of the plaintiff’s vendor. The plaintiff permitted the second defendant to celebrate his daughter’s marriage in the suit property. Taking advantage of that, he is claiming right over the suit property. Hence, the suit for declaration, title and possession.

4. The suit was contested by the defendants on the ground that the vendor of the plaintiff has no right to alienate the property. The suit property was allotted to the plaintiff’s vendor in the partition deed executed on 16.10.1953. In the said partition deed, the suit property has to be enjoyed by the mother of the plaintiff’s vendor Ramalakshmi Ammal till her life time and only after her death, the property will devolve upon the plaintiff’s vendor. In the said partition deed, a pre-emptive right of purchase is given to the co-sharers. If any one of the co-sharers wants to alienate the property, the pre-emptive right is vests with the co-sharers. Contrary to this condition, during the life time of his mother Ramalakshmi ammal, the vendor of the plaintiff has executed the sale deed without offering it to the co-sharer, therefore the sale is non est in law. The plaintiff had never been in possession of the property. Till the lifetime of Ramalakshmi ammal i.e. 25.12.1976, the suit property was occupied by the vendor’s mother Ramalakshmi ammal and thereafter, by the defendants. On the similar line, the second defendant has also filed written statement claiming adverse possession.

5. The trial Court, on the basis of the pleadings made by either side, has framed the following issues:-

“(1) Whether the plaintiff has got subsisting title to the suit properties?

(2) Whether the plaintiff has acquired any title to the properties by virtue of sale deed dated 28.08.1962 contrary to the terms and conditions imposed in the partition deed dated 16.10.53?

(3) Whether the plaintiff is in possession of the suit property?

(4) Whether the defendant is in possession of the suit property with the consent of the plaintiffs?

(5) Whether the husband of the defendant is necessary party?

(6) Whether the plaintiff is entitled to declaration and injunction?

(7) To what relief? Additional issued were framed on 25.06.1985:

(8) Whether the plaintiff was in possession of the suit property on the date of the suit?

(9) Whether the plaintiff is entitled to claim relief against the 2nd defendant? Whether the reliefs are barred by limitation?

(10) Whether the 2nd defendant has acquired title by adverse possession?

6. The trial Court on considering the pleadings of the parties and Exs.A1 to A31, Exs.B1 to B7, PW1 and PW2 and DW1 and DW2, held that the pre-emptive right given in Ex.B2 has been waived by the other co-sharers by alienating their shares without giving the option of pre-emptive purchase to the other co-sharers. However, held that the vendor Rajaraman had no right to alienate the property during his mother’s lifetime, so, the sale deed-Ex.A1 is non est in law. After considering the evidence let in by the plaintiff, the trial Court has observed that though the plaintiff has paid tax to the suit property, there is no evidence to show that he was in possession of the property. It is an admitted fac