Bhageerathi Ammal vs Kuppalammal and Others

Bellie, J.—The main question arising in the second appeal filed by the plaintiff is interpretation of two vital documents. The suit is for

partition. It relates to three houses situate from north to south and numbered respectively as Door No. 27, 26 and 25. These three houses

originally belonged to one Kaveriammal. She had four daughters and one son. The daughters are: The plaintiff Bhageerathiammal, first defendant

Kuppalanmmal, mother of the second defendant Thangammal, and fourth defendant Lakshmi. Kaveriammal mortgaged the properties under three

documents viz., Exc.A4 dated 13.11.1919, and Exs.A5 and A6 both dated 8.6.1928. then Kaveriammal executed two sale deeds in respect of

the middle house and southern house in favour of second defendant''s mother Thangammal under Ex.A7 dated 31.7.1981 and Ex.A8 dated

4.9.1931.

It is the case of the plaintiff that Thangammal did not discharge the mortgages under Exs.A4 to A6 as directed in the sale deeds Exs.A7 and A8

executed in her favour and therefore after Thangammal''s death in 1932 her husband Gopala Iyer i.e., father of the second defendant reconveyed

those houses to Kaveriammal under two sale deeds Exs.A9 and A10 both dated 22.4.1932, and thus Kaveriammal was the sole owner of the

three houses until her death in 1945; only the plaintiff, first defendant, second defendant and fourth defendant are the heirs of Kaveriammal. As

such the plaintiff is entitled to 1/4 share in the houses; and therefore there must be a decree for the said 1/4 share in favour of the plaintiff.

The suit is mainly contested by the second defendant She would contend that under Exs.A7 and A8 sale deeds executed by Kaveriammal in

respect of the middle and southern houses in favour of her daughter Thangammal, Thangammal became the owner of those houses and after her

death the second defendant as her daughter and sole heir became entitled to those houses. She would further contend that the sale deeds Exs.A9

and A10 executed by her father Gopala Iyer are not valid and they have not affected her right and hence the plaintiff has no right in the middle and

southern houses. As regards the northern house the second defendant has pleaded that she had perfected title by adverse possession. Thus the

second defendant denies that the plaintiff has any right in any of the houses.

The trial Court (Subordinate Judge, Karur), on consideration of the evidence let in, accepted the case of the second defendant that Exs.A9 and

A10 sale deeds executed by her father Gopala Iyer are invalid and it does not affect the second defendant''s right as regards the middle and

southern houses. It then held that as the only heir of Thangammal the second defendant is entitled to the middle and southern houses. As regards

the northern house the trial Court held that the second defendant is entitled to it by adverse possession. The trial Court, holding that the plaintiff has

no right in any of the three houses, dismissed the suit with costs.

On appeal by the plaintiff the first appellate Court, (Additional District Judge, Tiruchirappalli) concurred with the finding of the trial Court with

regard to the middle and the southern houses. As regards the northern house it held that the second defendant failed to prove description of title by

adverse possession. In the result, therefore, the first appellate Court confirmed the dismissal of the suit as regards the middle and southern houses,

and as regards the northern houses it decreed the suit for petitioner of 1/4 share. As against this the plaintiff has preferred this second appeal.

Therefore in this appeal we are concerned with the middle and the southern houses.

As regards the northern house the second defendant has filed a cross objection with which we will deal at a later stage.

Now, as aforesaid, Kaveriammal was the owner of the three houses. She executed in respect of the middle and southern houses Exs.A7 and

A8 sale deeds in favour of her daughter Thangammal, mother of the second defendant. Therefore Thangammal became the owner of these houses.

But after her death her husband Gopala Iyer, father of the second defendant, has executed two sale deeds Exs.A9 and A10 purporting to

reconvey those two houses to Kaveriammal herself. And now according to the second defendant, after her mother Thangammal''s death she

became the full owner of the houses and her father had no right therein and Exs.A9 and A10 sale deeds have been executed by him in his personal

capacity and not as guardian of her and so her right in these houses is not at all affected by these sale deeds. This contention has found favour with

the Courts below. According to the plaintiff Exs.A9 and A10 were executed by Gopala Iyer as guardian of his daughter - the second defendant. If

these documents had been executed by Gopala Iyer as guardian of the second defendant as contended by the plaintiff, then certainly the second

defendant would not have had any right thenceforth.

On carefully scrutinising these two documents it is seen that in the body of the documents Gopala Iyer seems to have stated that he is the owner

of the houses, but after the description of the property he has stated in both the documents that he has executed the document in his own behalf

and also as a guardian of his minor daughter Rajammal. Anyhow, therefore, there is a recital in both the documents to the effect that Gopala Iyer

has executed them on behalf of himself as well as on behalf of his minor daughter. True, there is no such recital in the body of the said deeds and it

is there only after the schedule of the property. But no law requires that a necessary recital must be stated at any particular place in the document.

What is required is statement of the necessary recital. No doubt there is recital in the document particularly in the body that Gopala Iyer is

executing the document for conveying the property as his own property, but inasmuch as he has also stated that he is executing the document on

behalf of his daughter also, and the daughter being the real owner of the property, with that recital in the document the document must be

construed as a conveyance by the daughter. The said other recitals in the document particularly in the body must be deemed to be redundant or

unwarranted and they can be ignored. Possibly the properties conveyed under the documents having been of Gopala Iyer''s own wife and she

having died and his daughter being a child (of about three years) perhaps Gopala Iyer though-that he could himself reconvey the property but later

realising or having been told that the true owner in law is only his daughter he had written the necessary recital. This recital must be given effect to.

Hence the documents must be construed as sale deeds by Gopala Iyer as guardian of his minor daughter.

It is also argued that there was no legal necessity for execution of Exs.A9 and A10 sale deeds. In Ex.A9 it is stated to the effect that

Kaveriammal had executed a sale deed in favour of her daughter Thangammal wherein as sale consideration she had been directed to discharge

the mortgage by. Kaveriammal, but even without taking possession of the property and without discharging the mortgage Thangammal died, and

the burden had fallen on him (Gopalan Iyer) and he could not discharge the same and therefore he was reconveying the properties to

Kaveriammal. It must be remembered that the vendee is none other than Kaveriammal herself i.e., Thangammal''s own mother. Therefore, the said

recitals in the document could be taken to be true facts. As regards Ex.A10 it is stated therein that a sum of Rs. 250 had been received by Gopala

Iyer for maintenance of his daughter (second defendant) and for that he is reconveying the house. Here too it must be remembered that the vendee

is Kaveriammal herself. This being the position the argument that there was no legal necessity has no much force. The first appellate Court is in

error when it says that without obtaining permission of the Court Exs.A9 and A10 had been executed by the guardian. It is only after the Hindu

Minority and Guardianship Act, 1956 came into force such permission for a natural guardian has become necessary. Admittedly the second

defendant has not taken any steps to set aside these sale deeds within three years'' time after attaining majority as provided under the Limitation

Act. For all these reasons with the execution of Exs.A9 and A10 sale deeds Kaveriammal again became owner of he middle and southern houses.

As regards the claim of the second defendant in the cross objection that in any event she had perfected title by adverse possession, as pointed

out by the first appellate Court, the plaintiff is only a co-owner of the suit properties as one of the heirs of Kaveriammal and therefore unless there

is strong proof of ouster of co-ownership the second defendant cannot be said to have prescribed title by adverse possession, and there is no such

evidence. The lower appellate Court has also pointed out that admittedly the plaintiff is in occupation of a part of the property. This finding is purely

a question of fact and I find no reason to differ from this finding of the first appellate Court.

In the result, the second appeal is allowed and the Judgment of the Courts below are set aside. The cross objection is dismissed. There will be

a decree as prayed for. Parties to bear their own costs throughout.