A. Rukumani and Another vs V. Gopalaswamy and Another

Thangamani, J.—Appellants are the plaintiffs in O.S. No. 1501 of 1980 on the file of learned Principal Subordinate Judge of Coimbatore.

They are the daughters of one Krishnama Naidu and his wife Papammal alias Thulasiammal. One P.K. Venugopal is their brother. In 1938

Krishnama Naidu was convicted by the Sessions Court, Coimbatore on a murder charge and he was hanged. It is the case of the appellants that

the suit property measuring Sacres and 36 cents in Survey No. 4, Goodalore village is their ancestral lands. After the death of their father, they

inherited the same, as his legal heirs. Respondents are their distant dayathies. Since the two sisters were married, their younger brother P.K.

Venugopal was mostly remaining with the respondents and cultivating the lands with their assistance. He was treated as one among the members of

the respondent''s family. From 1978 his whereabouts were not known. The appellants, suspect some foul play on the part of the respondents in the

disappearance of their brother. Now the appellants have come to know that their brother is no more. On account of long separation from her only

son, their mother expired on 7.5.1979. It appears that the respondents have managed to obtain Ex.B-2 sale deed on 21.4.1954 in their favour in

respect of the suit property by the exercise of fraud and undue influence on their brother. Their brother was born only on 28.7.1936 and so he was

a minor when Ex.B-2 was purported to have been executed on 21.4.1954. The said deed of sale is void ab initio. The appellants understand that

the respondents have taken the signature of Venugopal when he was not in a mood to understand and without informing its contents to him. The

consideration for the sale is a paltry sum of Rs. 10,500 while the suit property was worth more than Rs. 2,00,000 in 1954. It is now worth more

than Rs. 15,00,000. The appellants came to know of the sale deed only on 27.12.1979 after seeing the paper publication Ex.A-5. Hence the suit

to declare that Ex.B-2 sale deed is null and void and that the suit lands belong to the joint family of the appellants and to direct the respondents to

deliver possession of the property to them.

The respondents pleaded that the suit property is agricultural lands. Since the Hindu Women''s Rights to Property Act 18 of 1937 did not apply

to agricultural lands, on the death of Krishnama Naidu in 1938 Venugopal became entitled to the same as the sole surviving coparcener. Neither

widow Thulasiammal nor the appellants in herited any right in the suit property. Thulasiammal had only a right of maintenance. On 21.4.1954 he

sold the suit land to the respondents for Rs. 10,500. Out of the sale price a sum of Rs. 5,000 was retained by the respondents for which they

executed a mortgage deed in favour of Venugopal. The mortgage amount also carried interest. On 1.12.1954 Venugopal executed the original of

Ex.B-45 maintenance deed in favour of his mother. After the death of their father Krishnama Naidu, the appellants were not. enjoying the suit

property. Venugopal was always living with his mother in the village. That the respondents are responsible for the long absence of Venugopal from

the village, that he was encouraged to remain with them and that Ex.B-2 was obtained by the exercise of fraud or undue influence are false. Ever

since the purchase on 21.4.1954 the respondents are in uninterrupted possession of the property in their own right. Venugopal was born on

4.11.1935 and hence he was sui juris on the date of Ex.B-2.

The trial Court has held that Venugopal the vendor under Ex.B-2 was born on 28.7.1936 and hence Venugopal could not have conveyed valid

title in favour of the respondents under the same. However, it upheld the claim of the defendants that they have perfected title to the suit property

by adverse possession. Accordingly it granted only the declaration that Ex.B-2 is null and void and dismissed the suit in other respondents and

directed parties to bear their respective costs. Aggrieved by the said decision, the plaintiffs have come forward with this appeal.

Sri. S. Srinivasan, learned Counsel for the appellants assailed the finding of the trial court regarding adverse possession. Payment of kist by the

respondents under Exs.B-8 to B-17 is one of the factors relied on by the trial court in holding that possession of the suit land remain with the

respondents. Of these kist receipts Ex.B-17 has come into existence subsequent to the suit. The other kist receipts are for the years 1965, 1967,

1968, 1971, 1972, 1974, 1978 and 1979. Learned Counsel for the appellants submitted that these kist receipts are not sufficient to establish

continuous possession for the statutory period. There is no proof that respondents were in possession for the years which are not covered by the

kist receipts. It is true that the evidence of the first respondent as D.W. 1 is only to the effect that he has paid kist to the suit land under Exs.B-8 to

B-17. And he does not speak about his payment of kist for the remaining years. But as it has been pointed out in Kuppuswami Udayar v.

Murugayyan 84 L. W. 120, it is not necessary in order to establish adverse possession that the proof of acts of possession should cover every

moment of the requisite period. Though the possession be not proved to have continued every quarter, month or year, yet, ordinary possession will

be sufficient if the distance he not great. The fact of possession may be continuous though the several acts of possession are at considerable

intervals. In Ambika Prasad Thakur and Others Vs. Maharaj Kumar Kamal Singh and Others, , the Apex Court has held that if a thing or a state

of things is shown to exist, an inference of its continuity within a reasonably proximate time both forwards and, in appropriate cases, backwards,

may be drawn u/s 114, Evidence Act. So Exs.B-8 to, B-16 do indicate that possession remained with the respondents at any rate from 1965.

D.W.1 further states that at the time of purchase the suit property was only a dry land. From the date of sale it is in their enjoyment. Subsequent

to their sale they got the land levelled by using a .They have dug two wells therein and effected improvements. He had applied for purchase of

explosives for the purpose of digging the well. Ex.B-18 is the licence granted to D.W. 1 for possession of gun powder and other explosives in this

connection on 16.8.1975.

It is the evidence of D.W. 1 that they have installed electric motor pump sets in the two wells in the land. The relevant service connection

numbers 1030 and 249 stand in their names. They alone have been praying the electric bill as per Exs.B-19 to B-45. These are receipts for the

period from 15.7.1964 onwards. Of these receipts Exs.B-43 to B-45 have come into existence after the institution of the suit. The other receipts

go in support of the version of the respondents that they are in enjoyment of the land by paying electricity consumption charges for the motors in

the wells therein from 1964 to 1977. Learned Counsel for the appellants pointed out that since under Ex.B-18 the respondents have purchased the

explosives only in 1975, they could have dug the well only in that year and so they could not have installed electric motors prior to 1975. And so

no importance could be attached to the current bills Exs.B-19 to B-37 which are for the period from 1964 to 1969. Though at the first blush there

appears to be some substance in this argument, a close scrutiny of the records would reveal that there is no merit in it. Ex.B-19 positively points

out that in 1964 there was a well in existence in the suit land. So the explosives purchased as per Ex.B-18 could only be for the purpose of

deepening of the well. In any event there is no cross examination of D.W. 1 on his evidence relating to payment of electricity charges under the bills

referred to above.

D.W.1 states in the witness box that he entered into Ex.B-46 agreement with the Government on 24.9.1969 for the purpose of supplying seeds.

That he has undertaken to raise cotton in the suit field and supply seeds under this document is an indication that he was cultivating the same in

1969.

D.W.1 further deposes that he is running a Model Farm. He is a Member of the Research Council of Tamil Nadu Agricultural University. Ex.B-

51 is the certificate issued to him in this connection. Many used to visit his Model Farm. Ex.B-52 is the entry recorded in 1977 in the Register

supplied by the Government for this purpose. The visitor to the Model Farm has recorded his appreciation in Ex.B-52. No doubt there is no

intrinsic material to show that this relates to the suit property. However, in the absence of any cross examination on this aspect, the testimony of

D.W. 1 remains unchallenged.

We also find from Ex.B-47 dated 1.12.1954 that the respondents herein have executed a mortgage deed in favour of Venugopal over the suit

property and the mother has been directed to collect interest of Rs. 350 due on the date annually for her maintenance. As per Ex.B-48

Thulasianmal has relinquished her maintenance right after receiving Rs. 1,000 from Venugopal on 29.7.1959. Under the original of Ex.B-49

Venugopal has made over his mortgage right in this property in favour of one Ramakrishna Naidu on 6.8.1959. And Ex.B-50 discloses that on

15.9.1959 petition u/s 83 of the Transfer of Property Act was filed in the Court of District Munsif, Coimbatore by the mortgagors the respondents

herein against Venugopal the mortgagee and Ramakrishna Naidu his assignee. These documents indicate that Venugopal as well as his mother have

acknowledged the title of the respondents to the suit property and the latter dealt with the same as their own to the knowledge of the mother and

son. No doubt, learned Counsel for the appellants contended that the respondents have not chosen to file any document to show that Patta has

been changed in their names. Nor they have produced Adangal Extract to prove their cultivation of land. However, in view of the overwhelming

evidence referred to above, we do not think that the non-production of Patta and Adangal Extract belies >the claim of the respondents. Further, as

it has been rightly observed by the trial Court, even though P.W.1 states in the witness box that they were in enjoyment of the suit property till the

death of their mother in 1979, they have not produced any record to substantiate this version. P.W.2 has not spoken anything in her evidence on

this aspect. The classical requirement to establish adverse possession is that the possession should be nec vi nec clam nec precario. Here the

possession on the part of the respondents is sufficiently over and without any attempt at concealment, so that the person against whom time is

running sought if he exercises due vigilance, to be aware of what is happening. Even if it is assumed that Ex. B-2 sale deed is void, in view of the

evidence showing that the vendors are in open continuous and uninterrupted possession and enjoyment of the land since 1954, they have acquired

title by adverse possession. In Venkatsubramania v. Sivagurunatha AIR 1938 Mad. 60, a Division Bench of this Court has held that adverse

possession of an alienee dates from the moment the alienee is without lawful title. That time is, in the case of a void transfer, the date of the transfer.

So, we find no reason to differ from the finding of the trial Court on this aspect.

The next important question relates to the age of Venugopal on the date of execution of Ex.B-2. The appellants have based their claim on the

ground that their brother P.K. Venugopal was a minor when Ex.B-2 the sale deed dated 21.4.1954 relating to the suit property came into

existence. They pressed into service Ex.A-12 the Register of Admissions and Withdrawals (for use in Elementary Schools) maintained by the

District Board Basic School, Narasimhanaicken Palayam, Coimbatore Taluk in support of their contention that their brother was born on

28.7.1936. They also rely upon Ex.A-13 the certificate issued by the Headmaster of the said school on 7.1.1980 which reads that the date of birth

of K. Venugopal as recorded in the school Admission Register is 28.7.1936. P. W.3 Balakrishnan the Headmaster of the school from 1979

onwards speaks about Ex.A-13 certificate issued by him. Since his evidence is only to the effect that the certificate was given as per the entry

found in Ex.A-12 Register, we have now to scrutinize the same for the purpose of arriving at the conclusion. In Ex.A-12 Register serial number 34

is the entry relating to Venugopal son of Krishnama Naidu of Pudu Palayam. In this his date of birth is given as 28.7.1936. Learned Counsel for

the respondents points out that there is overwriting in figure ''6'' and so it is not possible to hold with certainty that the year of birth is 1936. The

other entries in this register indicate that Venugopal left the school on 7.6.1944 when he was in the V Standard. And he was admitted in the school

on 10.6.1941 in the Standard. So he had studied three years in the school. Had his date of birth been 28.7.1936, he would have completed five

years on 28.7.1941. Learned Counsel for the respondents submitted that unless he had completed five years, he would not have been admitted in

the I Standard as per Educational Rules. So, it is likely that the date of birth 28.7.1936 given in Ex.A-12 is not correct. P. W.3 Headmaster admits

in cross examination that a pupil should have completed five years for admitting him in the Elementary School. If he is less than five, the admission

could be made with the written sanction of Deputy Inspector of Schools. Venugopal had not completed five years when he was admitted in the

school on 10.6.1941 as per Ex.A-12 Register. There is no record in their school to show whether the permission of the Deputy Inspector of

Schools was obtained for him. Incase a student is admitted with such permission of Deputy Inspector of Schools, the Register of Admissions and

withdrawals should contain records relating to the same. There is no such endorsement in Ex.A-12. The orders passed by Deputy Inspector of

Schools on this aspect are permanent records. Had there been any application from the Headmaster to the Deputy Inspector of Schools seeking

exemption of age limit for the student and the consequential order, both the applications and the orders would be available in the Office of the

Deputy Inspector of. Schools. In their school no application seeking exemption for Venugopal is available. P.W.4 Sundaresan is the Deputy

Inspector of Schools, Coimbatore East. He has produced Ex.A-24 the proceedings of the Director of Public Instructions, Madras dated

18.4.1963. In this the Director of Public Instructions has drawn the attention of the Officers to G.O.Ms. No. 1296, Education, dated 16.6.1960.

This reads that first admissions are made direct to higher standards without reference to a correspondingly higher minimum age. The minimum age

for voluntary admission in the first standard shall continue to be five plus. And it is not clear from his evidence whether in 1941 the Education Rules

were so strict that a student before completing five years age could not have been admitted in the first standard. However, there is no convincing

explanation on the overwriting which is visible even to naked eye in the figure ''6'' found on the date 28.7.1936 appearing in column 9 of Ex. A-12.

On the other hand, the respondents rely on Ex.B-7 which is the certificate of Birth issued under Registration of Birth and Death Act 1969 by

the Sub Registrar, Periyanaicken Palayam. This discloses that a male child was born on 4.11.1935 to Krishnama Naidu and Thulasiammal of Pudu

Palayam. Ex.B.58 is the certified copy from the Register of Admissions and withdrawals maintained by the Board Middle School, Idigarai. This

reads that Venugopal of Puduppalayam was admitted in Class IV and he left the school on 29.10.1948. He was studying in First Form at the time

of leaving the school. The date of birth is given as 28.7.35. This extract further discloses that the pupil came from Board Elementary School,

Narasimhanaicken Palayam. And we have already seen that as per Ex.A-12 Venugopal was studying in District Board Elementary School,

Narasimhanaicken Palayam till 1941. The entry further reads that the pupil left the school in order to join Board Middle School, Idigarai. P.W.1

states in her evidence that her brother left District Board Elementary School, Narasimhanaicken Palayam in 1944. Then he attended Idigarai

School for two or three days. Since there was no seat, he was stopped from going to the school. Evidently the intrinsic recitals found in Ex.B-58

belies the later part of her version. Instead, the former portion of her evidence supports the case of the respondents that Venugopal studied in

Idigarai Board School for some years. That in this extract Ex.B-58 the date of birth is given 28.7.1935 lends credence to the view that in all

likelihood the date has been corrected as 28.7.1936 in Ex.A-12. And in view of the fact that there is no convincing evidence to connect Ex.B-7

with P.K. Venugopal, no importance need be attached to that birth extract. Further we find from Ex.A-19 that on 16.9.1937 a male child was

born to Krishnama Naidu son of Vara. Rangappa Naidu and Thulasiammal. The first defendant as D.W. 1 denies in cross examination that the

parents mentioned in Exs.A-19 and B-7 are different. He also denies the suggestion that on 16.9.1937 another male child was born to the parents

of the appellants. So, we are not in a position to hold with certainty that Ex.B-7 relates to P.K. Venugopal. In any event, as it has been held in

Nawab Sadiq Ali Khan v. Jai Kishori (1928) 55 M.L.J. 88 : AIR 1928 P.C. 152 : 26 A.L.J. 685 : 47 C.L.J. 628 : 32 C.W.N. 874 : 109 I.C.

387 : 28 L.W. 17 : 30 B.L.R. 1346, where a deed is executed by a person who alleges himself to be a major at the time of execution, u/s 101 of

the Evidence Act a heavy burden rests upon him or his representatives when they set up the defence of minority. When we proceed on the basis of

Ex.B-58 it is seen that P.K. Venugopal had attained majority when he executed Ex.B-2 sale deed on 21.4.1954. Even otherwise since the

appellants have failed to discharge by convincing evidence that Venugopal was a minor at that time they have to fail. So we find no merit in this

appeal.

In the result, the appeal is dismissed with costs.