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Judgment
S.S. Subramani, J.—Plaintiff in O.S. No. 354 of 1977, on the file of the District Munsif''s Court. Thanjavur, is the appellant herein. Plaintiff
is a lunatic and is represented in the suit by her next-friend. Plaintiff and the first defendant are children of the one Appavu Ponnapoondar. He
executed a Will on 4-7-1946, and the plaint mentioned property was allotted to the plaintiff under that will. Ex.A-1 is the Will. The first defendant,
who is also a daughter of the testator was given some other properties.
Even at the time when the Will was executed , plaintiff was mentally retarded and a guardian was appointed. It is seen that the plaintiff was given
in marriage and the next-friend is none other than her husband. It is said that the guardian who was appointed as per the Will handed over
possession of the suit property, and as next friend her husband is in possession. The cause of action for the suit is said to be that the first defendant
is arranging to sell the suit properties and defendants 2 and 3 have forcibly entered possession on the basis f of consent given by the first defendant.
The suit was, therefore, filed for declaration of title and recovery of possession, with mense profits.
First defendant filed written statement wherein initially she denied that her sister (plaintiff) is a lunatic. She admitted that as per the Will, plaint
property was allotted to the plaintiff. But her case is that the plaint property was given in exchange to her by her uncle, who was looking after the
plaintiff before her marriage. It is said that the exchange was in 1962, and ever since that date, she is in exclusive possession, and that she has been
dealing with the property as absolute owner. She claimed absolute right over the property of the ground of adverse possession and limitation also.
Defendants 2 and 3 who claim right under the first defendant, supported her case and said that the right of the plaintiff was lost by adverse
possession and limitation.
Before the trial court, guardian of the plaintiff was examined as P.W.1 and through him Exx.A-1 to A-19 were marked. An independent witness
was also examined. On the defendant''s side, Exx.B-1 to B-14 were marked. D.ws.1 to 9 were examined.
After considering the entire evidence, both oral and documentary, trial court came to the conclusion that the entire case put forward by the
defendants was false, and the plaintiff is entitled to get recovery of possession of all the properties, with mesne profits. The case of exchange was
also found to be an afterthought and lacking in good faith. The trial court further held that the case of exchange put forward by the first defendant
was improbable.
Regarding the plea of adverse possession, trial court came to the conclusion that even as per the evidence of the first defendant, Vasavambal
was in possession and since the first defendant is not claiming any right under Vasavambal, there cannot be an uninterrupted possession and,
therefore, Vasavambal''s possession cannot be tacked on with that of the first defendant''s. It also held that there was no evidence to show that the
first defendant was in continuous possession for more than 12 years. The plea of adverse possession was found against the plaintiff. The claim of
defendants 2 and 3 that they had purchased the property from the first defendant was also found against them, and it was held that they are not
bonafide purchasers for value.
The matter was taken in appeal before the lower appellate court by the defendants. The lower appellate court received additional evidence.
That is, Exx.B-15 to B-18, certain kist receipts, were received as additional evidence, and after discussing the evidence, lower appellate court
came to the conclusion that by the so called exchange, the first defendant was in possession, and, therefore, the right of plaintiff was lost. Of
course, I do not find any definite finding regarding adverse possession and limitation. Learned counsel for the defendant conceded that the
exchange pleaded by them cannot be correct, and without a written document, there cannot be exchange of law. But he wanted to probabilise oral
exchange by adducing other evidence. It was that case that was accepted by the lower appellate court, which led to the dismissal of the suit.
Before concluding the evidence, trial court initially wanted to examine plaintiff herself (Pattammal). She was brought to court. On examining her,
trial court was satisfied that she is a person who cannot look after herself and is a lunatic. The fact that she is a lunatic is not disputed by the
defendant. There is also no evidence in this case to show that after the will, plaintiff at any time recovered from her mental illness.
At the time of admission of the Second Appeal, the following substantial question of law was raised:-
Whether the lower appellate court''s judgement upholding the plea of adverse possession is correct in the face of the proved insanity of the
plaintiff?
The trial court, after discussing the evidence, came to the conclusion that possession was with Vasavambal who was the mother of the first
defendant. The case of the first defendant is that in 1962, at the of instance of their uncle who was the guardian of the minor, there was exchange of
properties, and the first defendant was put in possession. But the document shows otherwise. The document shows that Vasavambal was in
possession and it is now admitted even by witnesses examine on the side of the defendants that Vasavambal was in possession of property. But to
show as to how long she was in possession, there was no clear evidence. The possession of Vasavambal cannot be adverse against the plaintiff,
who is a lunatic. When a person enters the property of a lunatic, he is considered to be a bailiff or agent of the lunatic. Vasavambal did not have
any antecedent right or antecedent relationship with plaintiff, except that she was her stepmother.
Being a stepmother also, her possession is that of a Trustee, though she is not a recognized guardian or protector of the minor. Vasavambal is
none other than her father''s second wife. First defendant is not claiming any right under Vasavambal. Her claim as such is directly opposed to
alleged oral exchange of 1962. Once that goes in view of the possession of Vasavambal, the first defendant has to prove as to when her
possession began and that her possession was adverse to the lunatic.
If Vasavambal''s possession cannot be recognised as adverse to the lunatic, the same reasoning will follow so far as the first defendant is also
concerned.
The guardian of the lunatic before marriage is alleged to have exchanged the property and put Vasavambal in possession. The authority of the
guardian Kuppusami is not known, and we do not find that any court sanction was obtained, nor any document executed. Hence Vasavambal''s
possession can only be that of a trespasser. As against the plaintiff, who is lunatic, she cannot prescribe a right, because, law presumes the
possession to be that of an agency. Even if the possession of Vasavambal is considered to be that of a trespasser, since the first defendant is not
claiming any right under her, the first defendant cannot claim the benefits of her prior possession. That is, the first defendant cannot tack on the
possession of Vasavambal for her benefit. It is that reasoning given by the trial court to pass a decree in favour of the plaintiff. Regarding that
finding of the trial Court, I do not find the lower appellate court has entered any finding against the plaintiff. The lower appellate court mainly
discussed the boundary of the property and came to the conclusion that the first defendant might have been in possession. ""Whether Vasavambal
or the first defendant could have prescribed title against the plaintiff was not discussed by the lower appellate Court. According to me, the absence
of such finding vitiates the entire decision.
The substantial question of law is, whether the first defendant or the defendants in this or suit can prescribe title against a lunatic.
In Rustomji on Limitation Act - 7th Edition - (1992) at page 990, the learned author says thus;-
A person entering on the lands of lunatic with knowledge of the lunatic''s right and of the lunacy is in the position of a bailee or trustee for the lunatic
and can obtain no benefit for himself personally by occupation of the land
In this case, neither the first defendant nor Vasavambal can deny the fact that the plaintiff is a lunatic. For, even in the Will in which the first
defendant is a beneficiary, her father has stated that the plaintiff is a lunatic. In such a case, the first defendant cannot have any benefit for herself
personally against the lunatic.
I answer the substantial question of law in favour of the appellant/plaintiff, and the suit is decreed with costs. The judgment of the lower appellate
court is set aside, and that of the trial court is restored. The question regarding mesne profits will be decided in final decree proceedings when the
plaintiff files an application for recovery of the property. The Second Appeal is allowed as indicated above, with costs.