IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:17.02.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.1602 of 2008 and M.P.No.1 of 2009 1. Murugesa Gounder 2. Jayarama Pathar .. Appellants/2nd Defendants (Recorded Appellant 1 as LR of the deceased R7 vide order of Court dated 17.12.2009) vs. 1. Brindhavathi Ammal 2. Rajamanicka Padayachi(Deceesed ) 3. Adhilakshmi 4. Angamuthu 5. Neelavathi 6. Asothai 7. Muthammal 8. R.Abarajitham 9. P.Vasantha 10.K.Santha 11.R.Viswanathan 12.R.Ulaganathan 13.R.Jothi .. Respondents/Plaintiff, and Defendants 5 to 9 and Lrs of the 2nd DEfendant (RR8 to 13 brought on record as Lrs of the deceased R2 vide order of the Court dated 26.02.2010) This second appeal is focussed as against the judgment and decree passed in A.S.No.97 of 1993 on the file of the Principal Subordinate Judge, Villupuram dated 16.06.2008 reversing the judgment and decree passed in O.S.No.956 of 1985 on the file of District Munsif Court, Tirukkoilur dated 30.06.1992. For Appellants : Mr.S.V.Jayaraman,Sr.Counsel for Mr.P.Gopiraja For Respondents : Mr.A.E.Chellaiah, Sr.Counsel for Mr.C.Vasanthakumar Chellaiah https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T This second appeal is focussed by the original defendants 2 and 4, animadverting upon the judgement and decree dated 16.06.2008 passed in A.S.No.97 of 1993 by the learned Principal Subordinate Judge, Villupuram, reversing the judgment and decree of the learned District Munsif Court, Tirukkoilur in O.S.No.956 of 1985. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Compendiously and concisely, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiff/R1 filed the suit for partition seeking half share in the 'B' scheduled properties as 'A' schedule property is nothing but her wearing apparels to show that she was an indigent person as on the date of the filing of the suit. (b) The written statement was filed by the defendants resisting the suit. (c) Whereupon the trial Court framed the issues. (d) The plaintiff-Brindhavathi Ammal examined herself as P.W.1 along with P.Ws.2 to 4 and Exs.A1 to A7 were marked. On the side of the defendants, D.Ws.1 to 5 were examined and Exs.B1 to B74 were marked. (e) Ultimately the trial Court dismissed the suit. Being aggrieved by that, the plaintiff filed the appeal, whereupon the appellate Court reversed the judgment and decree of the trial court and decreed the suit. 3. Challenging and impugning the judgment and decree of the first appellate Court in decreeing the suit, the defendants 2 and 4 preferred this appeal on various grounds inter alia to the effect that the first appellate Court upset the judgment and decree of the trial Court not on sound grounds, but on misconception of law as well as misreading of evidence. 4. Accordingly, the defendants suggested the following substantial questions of law in the grounds of appeal: "(1) Is the Lower Appellate Court correct and justified in reversing the decision of the trial Court? https://hcservices.ecourts.gov.in/hcservices/ (2) Is the Lower Appellate Court correct and justified in holding that plaintiff is the daughter of Vaidyalingam in the absence of any evidence? (3) Is the Lower Appellate Court correct and justified in holding that the settlement deed Ex......is proved when provisions of Section 68 of the Evidence Act has not been complied with? (4) Is the Lower Appellate Court correct and justified in holding that the defendants has not prescribed title by presumption especially when defendant has been in possession for over 4 decade and there is ouster? (5) Is the Lower Appellate Court correct and justified in holding that the suit is not barred by limitation." (extracted as such) 5. My learned Predecessor framed the following substantial questions of law: "(a) Is the Lower Appellate Court correct and justified in holding that the settlement deed is proved when provisions of Section 68 of the Evidence Act has not been complied with? (b) Is the Lower Appellate Court correct and justified in holding that the defendants has not prescribed title by prescription especially when defendant has been in possession for over 4 decade and there is ouster?" 6. However, after hearing both sides, I am of the considered view that the aforesaid substantial questions of law have to be reframed as under: (1) Whether the first appellate Court was justified in holding that the plaintiff/Brindhavathi Ammal is the daughter born to Vaithilingam and Porkalaiammal in the wake of the available evidence? (2) Whether the first appellate Court was justified in holding that the Settlement Deed-Ex.A1 was passed in the absence of non-compliance with Section 68 of the Indian Evidence Act? https://hcservices.ecourts.gov.in/hcservices/ (3) Whether the sale deed-Ex.A6 executed by Porkalaiammal along with her one major son/D1 and her minor son Vaithilinga Gounder in favour of D3 in selling the 2nd item of the 'B' scheduled property, could be challenged by D1 himself in these proceedings? (4) Whether the plea of adverse possession as pleaded by the defendants, was erroneously rejected by the first appellate Court ignoring the alleged fact that the defendants have been in possession and enjoyment of the suit properties for over four decades? (5) Whether the plaintiff could be considered as the legal heir of the deceased Venkatachala Gounder entitled to seek partition during the lifetime of Porkalaiammal (P.W.3), the widow of Vaithilinga Gounder? (6) Whether there is any perversity or illegality in the judgment and decree of the first appellate Court? SUBSTANTIAL QUESTION OF LAW NO.1: 7. I fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL. (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL (iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI] A plain poring over and perusal of those decisions would highlight and spotlight the fact that the Second Appeal cannot be entertained by the High Court as per Section 100 of CPC unless there is any substantial question of law is made out from the available materials on record. 8. The trial Court as well as the appellate Court gave concurrent finding regarding the fact that Brindhavathi Ammal happened to be the daughter of deceased Vaithilingam and Porkalaiammal based on the Birth Certificate and also based on the https://hcservices.ecourts.gov.in/hcservices/ evidence given by P.Ws.1 to 4. Ex.A3 is the Birth Certificate of Brindhavathi Ammal which would show that a female child was born to Porkalaiammal on 30.06.1953. However, father's name is not found specified therein for which convincingly and correctly the learned Senior Counsel for the plaintiff would explain and expound that since the child happens to be the posthumous child, so to say the child was born after the death of the father of the child, her father's name was not found mentioned and only the mother's name was mentioned and that fact also is borne by Ex.A2 which would reveal that the father died on 06.01.1953. Ex.A7 would reveal that earlier the couple Vaithilingam and Porkalaiammal gave birth to a daughter on 06.07.1951 and that child died. The cumulative effect of those documents coupled with the oral evidence is that the plaintiff happened to be the daughter of deceased Vaithilingam and Porkalaiammal. There is also one important factor which should be taken note of. As per the evidence on plaintiff's side, Porkalaimmal, the mother of the plaintiff got married for the second time even while the plaintiff was a child and in fact, on her remarriage the plaintiff was left in the custody of the first defendant. The fact also remains that the plaintiff was given in marriage at the instance of the first defendant. These facts also weighed very much in the minds of the Courts below and they gave concurrent finding to the effect that there is no point on the part of the appellants/defendants in disputing the paternity of the said child. It is a trite proposition of law that as against a concurrent finding of fact the question of interference in the Second Appeal would not arise. 9. At this juncture, I would like to recollect the following: "24. An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1971 SC 2352 (Perumal Nadar (dead) by Legal Representative vs. Ponnuswami Nadar (Minor) would run thus: "12.Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrate’s court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to https://hcservices.ecourts.gov.in/hcservices/ establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced. 13.In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana3 in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiff’s mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi4 that “non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory”, and since on the basis of that proof there was evidence on the record that the plaintiff’s mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access." (emphasis supplied) (ii) An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1993 SC 2295 (Goutam Kundu vs. State of West Bengal and another) would run thus: "21. above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. (emphasis supplied) 22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that https://hcservices.ecourts.gov.in/hcservices/ access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. (emphasis supplied) 23. Dukhtar Jahan (Smt) v. Mohammed Farooq this Court held: (SCC p. 629, para 12) “... Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.” (emphasis supplied) 24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. (emphasis supplied) 25. The quintessence of the legal point that could be understood from the aforesaid decisions is that the presumption contemplated under Section 112 of the Indian Evidence Act is only a rebuttable one. It is therefore, just and necessary to extract the relevant Section, viz., Section 112 of the Indian Evidence Act. "112. Birth during marriage, conclusive proof of legitimacy – The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, them other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, https://hcservices.ecourts.gov.in/hcservices/ unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." (emphasis supplied) 10. The underlined last clause of Section 112 of the Indian Evidence Act gains utmost significance and importance so far this case is concerned. The perusal of the records and my discussion supra would axiomatically and obvioulsy highlight that the deceased Vaithilingam and Porkalai Ammal (PW3) happened to be the husband and wife and through their wedlock alone, the plaintiff got conceived in the womb of Porkalaiammal and the death certificate (Ex.A2) of Vaithilingam and the birth certificate (Ex.A3) of Brindhavathi Ammal would amply establish the same coupled with the oral evidence. Absoultely, there was no rebuttal evidence from the defendants' side that the couple had no opportunity to give birth to the plaintiff as their child. 11. The aforesaid two decisions, while positing the legal proposition and the concept, which got embedded and envisaged in Section 112 of the Indian Evidence Act, highlighted and spotlighted that the evidence to rebut the presumption as contemplated under Section 112 of the Indian Evidence Act should not be mere preponderance of probabilities as it is normally adhered to in adjudication of civil cases, but strong preponderance of evidence. 12. The fact also remains that as against the finding of the trial court upholding the claim of the plaintiff that she is the daughter of the Vaithilingam, no cross appeal was filed by the defendants and in fact, only the plaintiff filed the first appeal. 13. I recollect and call up the following decision of the Hon'ble Apex Court reported in 2010(7) SCC 717 [ Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak]. An excerpt from it would run thus: "24. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. ..........................." 14. In the aforesaid decisions, the Hon'ble Apex Court zealously pointed out that the Court should not encourage bastardising a child and unless there is clinching evidence to display and demonstrate that a child was not born to the couple, the question of bastardising a child would not arise. As such keeping in view the aforesaid principles, I am of the view that no interference in the Second Appeal is warranted on that issue. https://hcservices.ecourts.gov.in/hcservices/ According the first substantial question of law is decided to the effect that the first appellate Court was justified in holding that the plaintiff/Brindhavathi Ammal is the daughter born to Vaithilingam and Porkalaiammal in the wake of the available evidence. SUBSTANTIAL QUESTION OF LAW NO.2: 15. The perusal of Ex.A6 would demonstrate and display as to how D1-Mayagounder, the father of D2-Murugesa Gounder himself being a major at the time of execution of the sale deed dated 16th September 1941 (Ex.A6) signed the said sale deed along with his mother Ponnammal, who signed on her behalf and on behalf of her minor son Vaithilingam, the father of the plaintiff. In the said sale deed it is found specified that on the strength of the Settlement Deed-Ex.A1 dated 30.10.1934, the vendors got the property and in such a case, it is highly unjustifiable and wrong on the part of the appellants/defendants to contend as though the Settlement Deed-Ex.A1 should have been proved in accordance with Section 68 of the Indian Evidence Act and that there was no settlement as contained in Ex.A1. The first appellate Court in para No.15 of its judgment gave its finding correctly that Venkatachala Gounder had right to execute the settlement deed. The said settlement deed and the sale deed as contained in Exs.A1 and A6 respectively are also ancient documents within the meaning of Section 68 of the Indian Evidence Act. This is a fitting example as to how the defendants herein went to the extent of challenging and gainsaying in the litigative process the well established facts also, which attitude should not be encouraged. Accordingly, the second substantial question of law is decided to the effect that Ex.A1 is valid and proved and it is not hit by Section 68 of the Indian Evidence Act. SUBSTANTIAL QUESTION OF LAW NO.3: 16. The contention on the side of the plaintiff is that the settlement deed in favour of Ponnammal conferring life estate cannot be construed as one empowering her to sell the second item of the suit property along with her one major son-D1 and her minor son- Vaithilinga Gounder and that has to be ignored and the second item also should be considered for being partitioned along with other items of the properties. 17. Whereas, the learned Senior Counsel for the appellants/defendants would contend that it is not as though the said Ponnammal, the life estate holder as per the settlement deed alienated the property unilaterally, but on the other hand she along with the vested reminders, so to say the absolute owners, namely one major son and one minor son sold the property as early as in the year 1941 and that cannot be found fault with. https://hcservices.ecourts.gov.in/hcservices/ 18. In this connection, I am of the considered view that the first appellate Court committed a serious error in not applying the correct proposition of law. The first appellate Court did not consider that aspect of the matter. The fact also remains that those absolute owners/vested reminders did not challenge the sale as contained in Ex.A6 and in such a case it would not lie in the mouth of the plaintiff now to challenge the very sale deed-Ex.A6 at this distant point of time. In fact the sale was effected in the year 1941 and the suit was filed in the year 1985. The law also is well settled in this regard that if any alienation by a life estate holder is erroneous, then the absolute owners/vested reminders should file a suit seeking for annulment of the same within three years after attaining majority, but in this case no such action was undertaken by Vaithilinga Gounder, the father of the plaintiff. In such a case, the plaintiff was not justified in insisting that the second item of the 'B' scheduled properties also should be subjected to partition along with other properties. Accordingly the third substantial question of law is decided to the effect that the first appellate Court was not justified in holding that the sale deed-Ex.A6 executed by Porkalaiammal along with her one major son and one minor son in favour of D3 in selling the 2nd item of the 'B' scheduled properties was invalid. SUBSTANTIAL QUESTION OF LAW NO.4 19. The learned Senior Counsel for the appellants/defendants would argue that for more than four decades the appellants were enjoying the suit properties other than the said item 2 which was already sold and in such a case the plaintiff cannot now come and make any claim over it. 20. At this juncture, I recollect the following decision of the Hon'ble Apex Court reported in (2007) 6 SCC 59 (P.T.Munichikkanna Reddy and others vs. Revamma and others). An excerpt of it would run thus: "10. In that context it is relevant to refer to JA Pye (Oxford) Ltd. v. United Kingdom wherein the European Court of Human Rights while referring to the Court of Appeal judgment JA Pye (Oxford) Ltd. v.Graham made the following reference: "Lord Justice Keene took as his starting point that limitation periods were in principle not incompatible with the Convention and that the process whereby a person would be barred from enforcing rights by the passage of time was clearly acknowledged by the Convention (Convention for the Protection of Human Rights and Fundamental https://hcservices.ecourts.gov.in/hcservices/ Freedoms). This position obtained, in his view, even though limitation periods both limited the right of access to the Courts and in some circumstances had the effect of depriving persons of property rights, whether real or personal, or of damages: there was thus nothing inherently incompatible as between the 1980 Act and Article 1 of the Protocol". 11. This brings us to the issue of mental element in adverse possession cases – intention. ................... 14. Importantly, intention to possess cannot be substituted for intention to dispossess which is essential to prove adverse possession. The factum of possession in the instant case only goes on to objectively indicate intention to possess the land. As also has been noted by the High Court, if the appellant has purchased the land without the knowledge of earlier sale, then in that case the intention element is not of the variety and degree which is required for adverse possession to materialise. 18. On intention, Powell v.McFarlane is quite illustrative and categorical, holding in the following terms: "If the law is to attribute possession of land to a person who can establish no paper title to possession, he must be shown to have both factual possession and the requisite intention to possess ('animus possidendi')" * * * If his acts are open to more than one interpretation and he has not made in perfectly plain to the world at large by his actions or words that he has intended to exclude the owner as best he can, the courts will treat him as not having had the requisite animus possidendi and consequently as not having dispossessed the owner. In my judgment it is consistent with principle as well as authority that a person who originally entered another's land as a trespasser, but later seeks to show that he has dispossessed the owner, should be required to adduce compelling evidence that he had the requisite animus possidendi in any case where his use of the land was equivocal, in the sense that it did not necessarily, by itself, betoken an intention on his part to claim the land as his own and exclude the true owner. https://hcservices.ecourts.gov.in/hcservices/ What is really meant, in my judgment, is that the animus possidendi involves the intention, in one's own name and on one's own behalf, to exclude the world at large, including