R. Subbiah and S. Dhason vs P. Anandam @ Panchali

K. Sampath, J.—The plaintiffs in O.S. No. 118/83 on the file of the District Munsif, Nagercoil, are the appellants in the Second Appeal. The suit was filed for injunction restraining the respondent from interfering with the possession of the appellants on the following averments: The suit property of a total extent of 82 cents, 38 cents in S. No. 1439 and 44 cents in S. No. 1438, in Iranchakulam Village, Thovalai Taluk, Kanyakumari District, belonged to the joint family of Subbayyan Asari and Chidambarathanu Asari. Chidambarathanu Asari died leaving behind him his widow Parvathy and daughter, the respondent herein. Subbayyan Asari and Parvathy entered into an agreement on 21.9.1117 M.E. under which 27 cents of suit land were given to Parvathy for enjoyment during her life time. The rest of the suit property was taken by Subbayyan Asari. Subbayyan Asari orally gave the property to the appellant''s father Ramaswamy Asari. Ramaswamy Asari became the full owner of the suit property on the death of Parvathy in 1961. Ramaswamy Asari had leased the property to the second appellant. Ramaswamy Asari died on 3.4.1982 leaving behind him the first appellant and another son and three daughters. The first appellant was managing the property on behalf of the family. On 12.2.1983, the respondent herein attempted to interfere with the appellants'' peaceful possession of the property. She had also filed a false complaint at Bhoothapandy Police Station to harass the appellants and that the suit was therefore necessitated for the reliefs already mentioned.

The respondent resisted the suit contending inter alia as follows:

The suit property belonged to her father Chidambarathanu Asari by purchase on 6.4.1097 M.E. with his own funds and he was in separate possession and enjoyment. On his death, the property devolved on his daughter, the respondent herein. Subbayyan Asari and Parvathy did not have any right in the property. The alleged agreement between Parvathy and Subbayyan was a fraudulent, collusive and invalid document and the same was not binding on the respondent. She was entitled to ignore the same as she was not a party to the same. Subbayyan Asari and his heirs did not have any right in the suit property. He was not competent to deal with the property. The second appellant also was never in enjoyment of the property. The respondent was the absolute owner and she was in possession. After the harvest on 11.9.1982, she engaged the second appellant for threshing operations and the second appellant colluded with the first appellant and both of them appropriated the paddy and the hay. Subsequently, the land was leased to Philip and he was cultivating the same. The suit without a prayer for declaration was not maintainable and in any event, the respondent had prescribed for title by adverse possession.

The trial Court framed the necessary issues and on the oral and documentary evidence, held that the suit property belonged to the respondent''s father, that the respondent was the owner of the property and was in possession and that the appellants were not entitled to the injunction prayed for. So holding by his judgment and decree dated 31.7.1986, the learned District Munsif dismissed the suit. The appeal in A.S.No.40/86 to the District Judge, Kanniyakumari at Nagerkoil, met with the same fate on 24.12.1986 and aggrieved, the present Second Appeal has been filed.

At the time of admission the following substantial question of law were raised for decision in the Second Appeal:

(1) Whether Exs.A-6, A-10, A-11 and the other evidence on record do not prove that the suit property is joint family property?

(2) Whether the finding that the defendant''s mother succeeded to a limited estate under Act 18 of 1937 and it was enlarged to an absolute estate under the Hindu Succession Act, is legally sustainable?

(3) Whether the case of the defendant that she inherited the property directly from her father, who passed away in 1939 is legally sustainable? and

(4) Whether the findings of the Courts below on possession are legal and sustainable?

Mr. T.M. Hariharan, learned counsel for the appellants, submitted that there was enough material to show that the suit property was the joint family property of Subbayyan Asari and Chidambarathanu Asari, that the original title deed Ex.A-9 was produced only by the appellants and that Ex.A-9 showed that the sale consideration was paid only by Subbayyan Asari and that Subbayyan Asari alone presented the document for registration. The learned counsel further submitted that Exs.A-10 and A-11 copies of the judgment and the decree in O.S. No. 235 of 1116 M.E. conclusively proved that the suit property was the joint family property of Subbayyan Asari and Chidambarathanu Asari and that under Ex.A-6 Parvathy has agreed to have a life interest in 27 cents and allowed her brother-in-law Subbayyan Asari to have the rest of the property and on the death of Parvathy in 1961 Subbayyan Asari became entitled to the entirety of the property. The learned counsel further submitted that under Ex.A-10 and Ex.A-11 Parvathy had suffered a decree, which declared the title and possession of Subbayyan Asari and this decree was to the knowledge of the present respondent and the principles of res judicata would operate and the respondent could not claim any right in the property. The respondent could not seek to set at naught the binding adjudication by claiming inheritance directly from her father who died in the year 1940. According to the learned Counsel, Ex.A-6 agreement had come into effect and the same was binding on the respondent. The learned Counsel also relied on the judgment of the Supreme Court in The State of Punjab Vs. Bua Das Kaushal, in support of his contention that the principles of res judicata would operate in this case.

Mr. P. Ananthakrishnan Nair, learned Counsel for the respondent, submitted that the property was the separate self-acquired property of Chidambarathanu Asari as admittedly the sale deed stood in the name of Chidambarathanu Asari, that the plea of res judicata had not been raised in the plaint, that in any event, the agreement Ex.A-6 and Exs.A-10 and A-11 judgment and decree were fraudulent and would not bind the respondent. The learned counsel further submitted that the appellants had claimed that Subbayyan Asari had orally gifted the property to the first appellant''s father Ramaswamy Asari in 1950 and this had not been substantiated in evidence The learned counsel further submitted that in any event, the appellants had not established their possession on the date of the suit and the decision of the Courts below dismissing the claim of the appellants was perfectly in order and no exception could be taken to the same. The learned counsel also relied on the judgment of the Privy Council in AIR 1936 258 (Privy Council) and also the judgment of the Supreme Court in Thulasamma''s case ( AIR 1977 SC 1944 = 100 L.W. 89 S.N).

To appreciate the rival contentions, it would be useful to have a genealogy which is as follows:

The sale deed admittedly stands in the name of Chidambarathanu Asari. No doubt, it is stated that Subbayyan Asari presented Ex.A-9 sale deed for registration. The contention of Mr. T.M. Hariharan, learned counsel for the appellants, is that the endorsements in Ex.A-9 would clearly show that the sale consideration had been paid by Subbayyan Asari and this itself was sufficient to prove that the property was a joint family property. The endorsements in the sale deed do not show that Subbayyan Asari paid the consideration before the Sub Registrar. The items of consideration recited are as follows:

(1) For redemption of othi of the year 1092 (1917 A.D.) in favour of Maharaja Pillai S/o. Muthu Pillai Rs.5000/-

(2) For discharge of another simple mortgage of the year 1094 (1919) in favour of Maharaja Pillai and for discharge of another debt of the year 1096 (1921) due to Maharaja Pillai Rs. 1050/-

(3) To discharge a simple mortgage of the year 1095 (1920) in favour of Subramanian Rs. 2000/-

(4) To discharge a simple mortgage of the year 1096 (1921) in favour of Santhanam S/o Pichamuthu a sum of Rs.500 and received a sum of Rs.500 and paid to the mortgage this day endorsing the same on the mortgage deed Rs. 1000 and

(5) Advance already paid Rs. 450/-

Total Rs. 9500/-

The mere fact that Subbayyan Asari had participated in the execution and registration processes of the sale deed would not show that the property had been purchased with joint family funds. Admittedly, Subbayyan Asari was the elder of the two. It is up understandable as to why the property was purchased in the younger brother''s name if really the funds utilized for purchasing the property belonged to the joint family. We also search in vain for any oral or documentary evidence in the case to show that Subbayyan Asari and Chidambarathanu Asari possessed any joint family nucleus to acquire any property for the joint family. The first appellant as P.W.2 has also spoken to the fact that either before or after the purchase under Ex.A-9 the family did not own any other property. In the absence of any evidence to show that the property was purchased out of joint family funds, the conclusion is irresistible that the property was the separate self-acquired property of Chidambarathanu Asari.

The next question relates to the agreement Ex.A-6 dated 3.5.1942. Under the agreement Parvathy agreed to be satisfied with a life estate in respect of 27 cents out of the 82 cents. It should not be forgotten that Parvathy was a young widow in the year 1940 when her husband died and she was dependent on Subbayyan Asari for her protection and it cannot be ruled out that Subbayyan Asari practised fraud on Parvathy and brought about the agreement Ex.A-6. This would further evident from the fact that there was an earlier suit filed in O.S.No.235 of 1116 M.E. on 28.3.1116 (13.11.1940) by Subbayyan Asari against Parvathy and one Muthu Pillai for a declaration of his title and possession over the properties subject matter of Ex.A-9. His own address is given as the address for service on the defendant. The judgment Ex. A-10 and the decree Ex.A.11 show that the defendants were set ex parte and an ex parte decree was passed. This was on 18.7.1942, within two months of Ex.A-6 agreement. It would appear that Subbayyan Asari had not brought to the notice of the Court about the agreement Ex.A-6 and obtained an ex parte decree. It is the contention on behalf of the appellants that Ex.A.10 and A-11 would operate as res judicata and according to the learned counsel, even if there was no pleading, in view of the decision of the Supreme Court in State of Punjab Vs. Bua Das Kaushal, ) and the respondent could not claim any right.

In the Supreme Court decision the matter arose as follows:

"A charge was levelled against the respondent before the Supreme Court that while holding the rank of Officiating Assistant Sub Inspector of Police, be had fabricated false evidence while investigating a criminal case. An enquiry was held by the Deputy Superintendent of Police who submitted a report to the District Superintendent finding the respondent guilty of the charge. The Deputy Superintendent of Police called upon the respondent to appear before him to show cause why he should not be dismissed from service. The respondent asked for examination of some more witnesses which was declined. Thereafter the District Superintendent of Police passed an order dismissing him from service. His appeal to the Deputy Inspector General of Police as also his further appeal to the Inspector General failed. He filed a writ petition in the Punjab High Court challenging his order of dismissal. The learned Single judge dismissed the writ petition. The appeal to the Bench was decided on merits and it was held that the respondent had been given a reasonable opportunity to show cause as required by Article 311(2) of the Constitution. As against that the respondent applied for leave to appeal to the Supreme Court and the same was refused. In the meantime, he had instituted a suit for a declaration that the order of dismissal was violative of Article 311of the Constitution and that he still continued to be in service. The suit was contested by the State of Punjab and was dismissed by the trial Court. The decree of the trial Court was also affirmed in appeal by the Appellate Court. The matter went by way of Second Appeal to the High Court. The High Court framed two additional issues and called for a report from the trial Court on those additional issues. Those issues were:

(1) Whether the decision of the Letters Patent Bench in the earlier writ proceedings would operate as res judicata in the suit? and

(2) Whether the plea of res judicata had been waived by the State?

The trial Court gave a finding that the dismissal of the writ petition did not operate as res judicata in the subsequent Civil brought on the same ground and that the appellant had waived the plea of res judicata. The Second Appeal was heard by a Division Bench of the High Court and was allowed. It was held that the State had waived the plea of res judicata and that the finding of the Courts below was erroneous on the question of a reasonable opportunity having been given to the respondent in the departmental enquiry. The High Court held that the order of dismissal was illegal and wrongful. The matter went to the Supreme Court. The Supreme Court held that,

"although no specific plea was taken in the written statement nor was any issue framed before the trail court, the necessary facts were present to the mind of the parties and were gone into by the Court".

There was no question of the State having waived the plea when the point had been under consideration and discussion by the Courts. The Supreme Court distinguished AIR 1948 3 (Privy Council) and held that,

"although no specific plea was taken in the written statement nor was any issue framed before the trial Court, the necessary facts were present to the mind of the parties and were gone into by the Court."

There would be res judicata available to the State in that case.

In my view, this decision will not apply to the facts of the present case. Admittedly, the respondent was not a party to the earlier litigation. Her mother, we have seen, did not appear in the case and the records show that she was set ex parte. It has already been noticed that she was residing in the same address and it was very likely that Subbayyan Asari had played a fraud and brought about this decree to defeat and defraud the respondent''s mother Parvathy. Even otherwise, there is absolutely no plea in the present plaint by the appellants raising the question of res judicata and the respondent did not have to meet the case of res judicata. The question of res judicata must be supported by proper pleading. It has been held by the Privy Council in AIR 1936 258 (Privy Council) that,

"it is the law of res judicata that a party raising a plea of res judicata is not entitled to go into the question of res judicata, when it has not been properly raised by the pleadings or in the issues, particularly in the issues."

This position of law is well established. Even the Supreme Court decision relied on by the learned Counsel for appellants has not taken any view different from this established principle. In the case before the Supreme Court the parties were fully aware that the point had throughout been under consideration and discussion and the High Court also specifically framed additional issues and sought finding from the trial Court. It is not the case here. It has therefore to be held that it is not open to the appellants to raise the plea of res judicata and in any event, the respondent is not precluded from disputing the validity of the decree alleged to have been passed against her mother ex parte.

12.a. From the genealogy it would be noticed that the first appellant''s father Ramaswamy Asari had two brothers, Lakshmanan Asari and Nataraja Asari and they would be entitled to a share in the property if really Subbayyan Asari had a right in the property. To get over this, the appellants had invented the case of an oral gift in the year 1950 for which it has already been noticed that there is absolutely no evidence.

The Courts below have noticed that the appellants had avoided pleading about the earlier suit with the result the respondent could not plead her case with respect to the decree in the earlier suit and that in any event, the respondent''s claim under her mother Parvathy and the decree passed in the earlier suit and other contentions raised by the appellants based on the decree, had therefore to be ignored. The conclusion is inescapable that the agreement Ex.A-6 dated 3.5.1942 and the decree in the earlier suit were collusive and fraudulent. Admittedly, the respondent was not a party of Ex.A-6 agreement. The property was the self-acquisition of Chidambarathanu Asari and Subbayyan Asari had no right in the property. It was really strange as to how Subbayyan Asari could have claimed any right in the property and deprived Parvathy of her right in the suit property. By 1940 the wife had right to possess and enjoy the property of her husband for life. Parvathy died in 1961, after the Hindu Succession Act. The right she had in the suit property got enlarged by the passing of the Hindu Succession Act. In those circumstances, the agreement Ex.A-6 had been brought about by practice of fraud on Parvathy and her dependence on Subbayyan Asari had been misused and the document had come into existence. Ex.A-6 by no stretch of imagination could be used to show that the property was a joint family property.

In Thulasamma''s case (AIR 1977 SC 1944 = 100 L.W.89 S.N.) the Supreme Court has observed as follows:

To sum up, therefore, according to Sastri''s Interpretation of Shastric Hindu Law, the right to maintenance possessed by a Hindu widow is a very important right which amounts to a charge on the property of her husband which continues to the successor of the property and the wife is regarded as a sort of co-owner of the husband''s property though in a subordinate sense, i.e. the wife had no dominion over the property.......The lawful wife acquires from the moment of her marriage a right to the property belonging to the husband at the time and also to any property that may subsequently be acquired by him, so that she becomes a co-owner of her husband, though her right is not co-equal to that of the husband, but a subordinate one, owing to her disability founded on her status of perpetual or life long tutelage or dependence.''

Both the Courts below have found that the appellants had not proved their possession. No lease agreement evidencing any lease by the first appellant''s father Ramaswamy Asari and to the second appellant had been produced. Most of the kist receipts are in the name of Chidambarathanu Asari. No exception can be taken to the finding of the Courts below that neither Subbayyan Asari nor Ramaswamy Asari nor the appellants had been in possession of the property. Having come forward with a case that the appellants were in possession, the burden was entirely upon them to establish their possession and the same has not been done. The substantial questions of law are answered as follows:

Exs.A-6. A-10 and A-11 and the other evidence on record do not prove that the suit property is joint family property. They are all collusive and fraudulent records. The respondent''s mother Parvathy had become absolutely entitled to the suit property and on her death in 1961 the respondent became the owner of the property.

So far as the case of the respondent that she inherited the property directly from her father is concerned, it is unnecessary to give a finding having regard to the finding on the earlier two points. The findings of the courts below on possession are legal and are perfectly sustainable. The Second Appeal fails and the same is dismissed. There will, however, be no order as to costs.