IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.09.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.190 of 1999 and C.M.P.No.1503 of 2008 1. Gnanasoundary @ Gnasoundaram 2. Meenakshisundaram (deceased) 3. Sarweswaran 4. Kuppusamy 5. Sundara Murthy 6. Minor Thilakavathy 7. Minor Chandrasekaran .. Appellants/Plaintiff Appellants 4 to 7 brought on record as L.Rs of the deceased 2nd appellant vide order dated 11.08.2003) (5th appellant appointed as guardian for appellants 6 and 7 vide order of the Court dated 11.08.2003 in CMP Nos.12541 to 12543 of 2002) Vs. Vaithianatha Sivacharyar 11/1 Netheeswara Agraharam Koilpathu, Karaikal .. Respondent/Defendant Appeal filed U/Sec.96 CPC as against the judgment and decree dated 03.02.1999 passed by the learned Additional District Judge, Pondicherry at Karaikal, in O.S.No.48 of 1997. For Appellants : Mr.K.Chandramouli, Sr.Counsel for Mr.S.Viswanathan For respondent : Mr.T.P.Manoharan J U D G M E N T This appeal is focussed as against the judgment and decree dated 24.01.1994 passed by the learned District Judge, Pondicherry at Karaikal in O.S.No.48 of 1997, which is a suit for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. https://hcservices.ecourts.gov.in/hcservices/ 2. Niggard and bereft of details, the case of the plaintiffs as stood exposited from the plaint could be portrayed thus: (i) The first plaintiff is the mother of the plaintiffs 2 and 3 and the defendant. The plaintiffs are occupying the house property bearing Door No.11, Netheeswaramkoilpathu and the defendant is occupying with his family members, the western portion of the same building bearing Municipal Door No.11/1. The said house property and the garden appurtenant thereto comprised in Ward C, Block 4 T.S.No.115 R.S.No.147/3pt, Cadastre No.300pt 78Ca; Ward C Block 4, T.S.No.117, R.S.No.147/3pt, 147/1pt, Cadastre Nos.300pt and 301 pt 04A 19Ca and Ward C, Block 4, T.S.No.118, R.S.No.147/3pt, Cadastre No.300pt. 00A 21Ca at Netheeswaram, Koilpathu is the ancestral property of the plaintiffs and the defendant. (ii) The first plaintiff's husband Sri Pattu Gurukkal @ Balasubramania Gurukkal also known as Pattappa, during his life time on 24.08.1981 as owner of the suit property mortgaged it in favour of S.Sri Mahamood Maricar S/o Haji MM.Syed Ahamed Maricar and his brother Sri M.S.Mohamed Hussain Saibu Maricar of Karaikal. Subsequently, the said mortgage was discharged on 10.09.1984. Thereafter, one other mortgage was created by the same Pattu Gurukkal on 31.05.1986. Part of the mortgage debt was discharged by Pattu Gurukkal himself and the remaining debt was discharged by the defendant herein. The defendant even though happened to be the eldest son in the family, had no regard for the plaintiffs, who are entitled to 1/4 share each, totally to an extent of 3/4 share in the entire suit property and the defendant is entitled to 1/4 share in it. In fact, the defendant is in occupation of one half of the property to the disadvantage of the plaintiffs. Despite incessant demands made by the plaintiffs, there is no response from the defendant for amicable settlement. Hence the suit. 3. Per contra, remonstrating and refuting, gainsaying and impugning the allegations/averments in the plaint, the defendant filed the written statement on various averments, the gist and kernel of them would run thus: The suit property does not belong to the ancestors of the plaintiffs and the defendant, but it belongs to Sri Sundaramurthy Vinayagar Alayam, Nigheeswaram Koilpathu, Karaikal which was founded by the ancestors of Sami Mudaliar, Govindasamy Mudaliar and Sokalinga Mudaliar and they endowed large extents of lands to the temple. They also constructed houses for accommodation of the Gurukkal performing pooja in the said temple. In the olden days, house sites were not given Cadastre numbers, but they were treated as Government lands. The suit house property was came to be occupied by the ancestors of the plaintiffs and the https://hcservices.ecourts.gov.in/hcservices/ defendant as Archakas to the Sundaramurthy Vinayagar Alayam and the ancestors of the plaintiffs were working in the temple as Archakas and in recognition of their service alone, they were allowed to occupy the suit property. The right to occupy is only heritable and not partible or divisible and the parties to the suit are in occupation of the suit property only in their capacity as Archakas of the said temple. The temple is not paying any remuneration to the Archakas, but in lieu of the same, the plaintiffs were permitted to occupy the suit property. The suit is bad for non impleadment of the Arulmighu Sundaramurthy Vinayagar Devasthanam, Koilpathu. The suit property is not a joint family property capable of being partitioned. The defendant in his personal capacity purchased certain lands belonging to the temple from one Govindaraju on 08.05.1976 and the said property also is included in the suit schedule. Accordingly, he prayed for dismissal of the suit. 4. The trial Court framed the relevant issues. During trial, on the side of the plaintiff P.W.1 was examined and Exs.A1 to A26 were marked. On the side of the respondents D.Ws.1 and 2 were examined and no exhibit was marked. Mr.S.Shanmugasundram was examined as C.W.1. Ultimately, the trial Court dismissed the suit. 5. Being aggrieved by and dissatisfied with the dismissal of the original suit, the plaintiffs filed this appeal on various grounds, the warp and woof of them would run thus: The trial Court ignoring the fact that the suit property happened to be the ancestral property of the plaintiffs dismissed the suit and that too ignoring Exs.A1, A2, A11 to A22 and A24 to A26, which do demonstrate that the plaintiffs' ancestors acquired absolute ownership right over it. The trial Court erroneously construed as if the non filing of the antecedent title deed was fatal to the case of the plaintiffs. The trial Court failed to note that the parties to the suit in any event acquired prescriptive title over it, whose patta standing in the name of Pattu Gurukkal supports the case of the plaintiffs that it is the private property of the parties to the suit. Simply because the plaintiffs 2 and 3 and the defendant were not paid remuneration as Archakas, there is no presumption that the suit property under the occupation of the plaintiffs and the defendant happened to be the temple property. The trial Court wrongly held as if the suit was bad in non-joinder of the said Devasthanam as one of the defendants. The trial Court failed to note that the defendant could not succeed by setting up title on the third party. The learned District Judge erroneously place reliance on Ex.X1 and X2, which is having no nexus with the suit property. The oral evidence was not properly appreciated by the lower https://hcservices.ecourts.gov.in/hcservices/ Court. Accordingly, they prayed for setting aside the judgment and decree of the trial Court and for decreeing the suit as prayed for. 6. Heard both sides. 7. The points for consideration are as to: 1. Whether the suit is bad for non-joinder of Arulmighu Sundaramurthy Vinayagar Devasthanam? 2. Whether the suit properties are the ancestral properties of the plaintiffs and the defendant liable for partition? and 3. Whether they is any infirmity in the judgment and decree of the trial Court. Point Nos.1 and 2: 8. Interlinked and interwoven, these two points are, discussion thereon warrants, they being taken together. Pithily and precisely, the arguments as put forth by the learned counsel for the plaintiffs would be to the effect that the clinching authentic French documents having evidentiary value have been ignored by the lower Court without giving due importance to them, which evinced and evidenced that ancestors of the parties to the lis acquired title over the suit property and the propositus of the plaintiffs and the defendant mortgaged the suit property and raised money also and thereby, exercised right of ownership over it; the said Arulmighu Sundaramurthy Vinayagar Temple Devasthanam had no right over the suit property and it is not a necessary party to the suit, as the judgment in the present proceedings would be binding only on the parties to the suit and simply because the defendant had set out title in the said Devasthanam, the lower Court was not justified in dismissing the suit. 9. Tersely and succinctly, the epitome of the argument of the learned counsel for the defendant is to the effect that the parties to the suit are having only right of occupancy in lieu of the remuneration for performing Archaka duty in the said temple, which happens to be the owner of the suit property; the ancestors of the parties to the lease were performing pooja as Archakas in the said temple and in connection with that alone, they have been occupying the suit property and not as owners and that the suit is bad for non-joinder of the said Devasthanam as a necessary party, as without its presence the title of the suit property cannot be adjudged. https://hcservices.ecourts.gov.in/hcservices/ 10. Quintessentially the plea of the defendant is based on the concept Jus tertii (The right of a third party). At this context, my mind is reminiscent of the definition as found depicted in Black's Dictionary: "A tenant,bailee, etc., who pleads that the title is in some person other than his landlord, bailor, etc., is said to set up a jus tertii" along with an excerpt from the famous Treatise, Salmond on the law of Torts, 17th Edition, which would run thus: "The mere de facto and wrongful possession of land is a valid title of right against all persons who cannot show a better title in themselves, and is therefore sufficient to support an action of trespass against such persons. Just a legal title to land without the possession of it is insufficient for this purpose, so conversely the possession of it without legal title is enough. In other words, no defendant in an action of trespass can plead the jus tertii - the right of possession outstanding in some third person - as against the fact of possession in the plaintiff. It is otherwise, of course, if the defendant is himself the lawful owner or has done the act complained of by the authority, precedent or subsequent, of him who is thus rightfully entitled. The same rule holds good in an action of ejectment where the defendant has committed a trespass against the plaintiff. If, therefore, the plaintiff is in possession the jus tertii will afford the defendant no answer to the action. But usually the plaintiff in an action of ejectment is not in possession: he relies upon his right to possession, unaccompanied by actual possession. In such a case, he must recover by the strength of his own title, without any regard to the weakness of the defendant's. The result, therefore, is that in an action of ejectment the jus tertii is in practice a good defence. To the rule that it is in practice a good defence in ejectment there are two exceptions, or rather, applications of the general principle that the jus tertii is no defence: (1) Whenever a person has acquired possession through another whose title is defective, he cannot set up this defect against that other or anyone claiming through him, although he may show that such title has since expired or been parted with. This is an application of the principle of estoppel. The commonest instance is that the lessee is estopped from denying his lessor's title. (2) Probably, if the defendant's possession is https://hcservices.ecourts.gov.in/hcservices/ wrongful as against the plaintiff, the plaintiff may succeed though he cannot himself show a good title. For possession is prima facie evidence of title. If such prima facie evidence is not displaced by proof of title in a third person the plaintiff with prior possession will recover, although this has been doubted. (emphasis supplied) 11. A bare perusal of the above excerpts would amplify the position that the defendant by merely setting up the defence of jus tertii cannot try to achieve success in the litigative battle by getting the suit of the plaintiffs dismissed, if the plaintiffs claim of title based on their prima facie right to obtain possession and enjoyment. It is also a common or garden principle that the paramount title holder alone would have the ultimate ownership over the property, nonetheless between the plaintiffs and the defendant, when the defendant sets up title on a third party as the paramount title holder, then it has to be seen as to whether the plaintiffs presently have a right of possession and enjoyment over the suit property. Here, the case of the defendant is much the worse, for the reason that the plaintiffs do not want the defendant to be deprived of his right to occupy the suit property. In fact, the plaintiffs' contention is that the defendant also is one of the co-owners along with the plaintiffs and that the defendant is entitled to 1/4 share in it, whereas, the defendant even though had prevaricative stands nevertheless, ultimately he came forward with the case that the real owner of the suit property is only the third party, namely, Arulmighu Sundaramurthy Vinayagar Devasthanam and that even he is having no right of ownership or permanent right of occupancy or title. 12. Trite the proposition of law is that any judgment that would be rendered in a partition suit could not be termed as a judgment in rem, but it is only a judgment in personam. Equally settled the law is, that even if some of the co-sharers have not been added in the partition suit, they would not be bound by the partition decree. When such is the clear position, I am at a loss to understand as to how the defendant who is arrayed as such in the suit as one of the co-sharers along with the plaintiffs could be heard to plead strenuously for and on behalf of a third party, namely Arulmighu Sundaramurthy Vinayagar Devasthanam and as such, the conduct of the defendant in pleading so, necessarily warrants this Court to look askance at his bona fides in setting up such a plea of jus tertii. If at all the Devasthanam is having an independent right of its own, it is always open for it within the framework of law and limitation to initiate proceedings so as to assert its right. https://hcservices.ecourts.gov.in/hcservices/ 13. At this context, the learned counsel for the defendant would unconvincingly argue that the said Devasthanam might be under the impression that inasmuch as the parties to the suit are having the right of occupancy in view of the remuneration for their performing pooja at the temple, consequently, it might not have filed the suit and that the Devasthanam is being run by an aged person etc. 14. I cannot countenance such an argument as it is abundantly clear that the plaintiffs are litigating by processing their claim ever since 1997 and incontrovertibly and indubitably, the said Devasthanam was aware of this litigation also, as when they sought correction in the patta, the authority concerned informed the Devasthanam about the pendency of the suit O.S.No.48 of 1997 before the Additional District Judge, Karaikal as revealed by Ex.X3, an excerpt from it is extracted here under for ready reference: "With reference to the petition cited above, I am to inform that one Shri Sarveshwaran Iyer & Two Others of Netheeswaram, Kovilpathu of Karaikal have objected to the processing of the change of Registry application in respect of the property under T.S.No.C/4/115, 117, 118 of Kovilpathu Revenue Village, as a suit is in progress under O.S.No.48/97 of the A.D.J. Court at Karaikal. In view of the above, action on your application is kept in abeyance. Further action will be taken after intimation of disposal of the suit." (emphasis supplied) 15. Crystal clear it is, that the said Devasthanam was fully aware of the pendency of this case and despite that, they have not chosen to get themselves impleaded in this suit or filed any separate suit for establishing their title to it. It is not necessary that whenever a suit is filed by the Devasthanam, it should ask for eviction of the occupant, but on coming to know of the fact that the occupant under their control is initiating proceedings as against third parties ignoring the Devasthanam, it has got the legal right to file a suit to establish its right over it. When such is the reality, I am at a loss to understand as to how the defendant strenuously without any basis is trying to protect the right of the said Devasthanam. It is therefore glaringly clear that the defendant's plea is only to express his personal animosity or antipathy as against his relatives in seeing that they do not get amicable partition. Hence, in the wake of this ratiocination adhered to by me, I hold that the suit is not bad for non-impleadment of Arulmighu Sundaramurthy Vinayagar Temple Devasthanam as one of the defendants. https://hcservices.ecourts.gov.in/hcservices/ 16. The learned Senior Counsel for the plaintiffs by inviting the attention of this Court to Exs.A24, A25 and A26 would develop his specious argument without it being embellished by sophistry or casuistry or legerdemain that those French documents would highlight that all the parties to the lease dealt with the suit property as their own property and it was also mortgaged as such. It is therefore just and necessary to scrutinise those documents in depth. 17. Ex.A24 is the 'Notoriete', true copy of the deed of 'Notoriete' (Minutes) No.997 of the 08th of December 1955 emerged at the request of Vengatessa Couroucal and others, which would unambiguously highlight that before the 'Notoriete', at the instance of Pattu Gurukkal, the propositus of the parties to the lis and his close relative Vengadesa Gurukkal @ Chandrasekara Gurukkal, as many as five elders were caused to be present and those elders declared and affirmed about Pattu Gurukal ancestry and their joint living. Ex.A25 is the French mortgage deed dated 1st April 1959 executed by Balasubramania Gurukkal @ Pattu Gurukkal and his relative by describing it as under: "The tile-covered house building, well, trees and shrubs, the whole of it situated at Covilpattou Nittiswarame, commune of Karaikal, West Street to the temple of Sri Nittisvarassouvamy, to the north of the said street, to the east of the choultry of Srim Soundiramourty Vinayagar to the south of the garden of the temple of Sri Soundiramourty Vinayagar and to the west of the house of Codassalaramayer;" in favour of one Sarasvady. Ex.A26 is one other 'French mortgage deed emerged between the same parties relating to the suit property. The recitals in it are of paramount importance and it is extracted here under for ready reference: "The debtors have declared that the said immovable property had been the exclusive property of Mister SOUPPOUCOUROUCAL, of Covilpattous; That the said Souppoucouroucal died, leaving as his heirs his two sons, MOUTTOUSSAMYCOUROUCAL and SINNAPPACOUROUCAL; That the latter two lived as a joint-family; That the said Mouttoussamycouroucal died, leaving as his heirs his sons SAMYCOUROUCAL, SADASSIVACOUROUCAL, SOUNDARACOUROUCAL https://hcservices.ecourts.gov.in/hcservices/ SANGARACOUROUCAL and SOUPPARAYACOUROUCAL That the said Sinnappacouroucal also died, leaving as his heir his son PANDJANADACOUROUCAL; That the said Soundaracouroucal also died, leaving as his heirs his sons SOUPRAMANIACOUROUCAL, VAITINADACOURCOUCAL and SAMINADACOUROUCAL; That the said Samycouroucal and Sangaracouroucal died without issue; That the said Sadassivacouroucal and Soupparayacouroucal died celibate; That the That this the said Pandjanadacouroucal, Soupramaniacouroucal, Vaitinadacouroucal and Saminadacouroucal, had become the sole owners of the said immovable property; That these facts are recorded in the 'Acte de Notoriete (Translator's Note : In the days of the French Government, it was issued by a Notary-Public and had the value and legal force of an heirship Certificate), received by Maitre Louis Gnanadicame Douressamy Dhouret, former Notary-Public at Karikal, on the Twenty-third of August Eighteen Hundred ninety-two; That the said Saminadacouroucal died, leaving has his heir, his only son DATCHANAMOURTYCOUROUCAL; That the said Soupramaniacouroucal died, leaving to his rights his only son VENGATESSACOUROUCAL 'alias' SANDIRASSAGARACOUROUCAL, the first debtor in the present deed; That the said Vaitinadacouroucal 'alias' Mayouranadacouroucal died, leaving has his heir his only son SOUNDIRACOUROUCAL; That the said Datchanamourtycouroucal died, leaving has his heirs his two first cousins, the said VENGATESSACOUROUCAL and SOUNDIRACOUROUCAL; That the said Soundiracouroucal died, leaving has his heir his only son BALASOUPREMANIACOUROUCAL 'alias' PATTOUCOUROUCAL, the second debtor in the present deed; That these facts are recorded in an 'acte de Notoriete' (Translator's Note : Please refer above), put up by the undersigned Notary-Public, dated the Eighth of December Nineteen Hundred and Fifty-five; That the said Pandajanadacouroucal died without any issue more than fifty years ago, leaving as his only heirs the said SOUPREMANIACOUROUCAL, VAITINADACOUROUCAL and SAMINADACOUROUCAL; That the house which is hereby mortgaged is https://hcservices.ecourts.gov.in/hcservices/ found registered since the year nineteen hundred and twenty-five till nineteen hundred thirty-three in the name of the said Mayouranadacouroucal and since the year nineteen hundred and thirty-four till this day in the name of the said Soundiracouroucal; Thus it appears from a certificate issued by the Delegate of the Head of the Tax Office of Karikal on the sixteenth of December nineteen hundred and fifty-five; And thus the debtors have become the present and exclusive owners of the immovable property mortgaged hereby;" (emphasis supplied) 18. A bare perusal of the above excerpt from Ex.A26 would unambiguously and unequivocally demonstrate the fact that the very 'Notoriete' while drafting the said deed had referred to the earlier 'Acte de Notoriete dated 23rd August 1892. At this juncture, I would like to highlight the importance of the Office of the 'Notoriete' and his duties and responsibilities in brief: 19. Under the French regime, Notaires are not mere notaries as understood in the rest of India under the Notaires Act. But, French Notaires are French law graduates having the power of justice of peace and their office is a sanctified and responsible one, as French law attaches much importance to them and they were responsible for drafting the sale deeds in accordance with law and they were expected to get themselves satisfied about the recitals recorded by them on the instigation of parties in the deeds. With this background, it is just and necessary to analyse the French deeds here. Wherefore, it is obvious that the recitals in Ex.A26 cannot simply be slighted or discarded as mere unilateral versions of the executants of the mortgage deed. The clauses found in Ex.A26 would exemplify that the ancestors of Pattu Gurukkal, the propositus of the plaintiffs here acquired title over the suit property and they exercised right of ownership over it and on the strength of the same, Pattu Gurukkal and his relative mortgaged the suit property as evidenced by Ex.A26. In these circumstances, it is really strange to hear from the defendant certain statements as though his own ancestors are not the owners of the suit property and that some third party is the owner. 20. In this factual matrix, it is not too difficult for this Court to understand as to the falsity of the plea of the defendant in setting up title in the third party. Ex.A1 is one other mortgage deed executed by the propositus of the parties to the suit, in favour of two persons, namely M.S.Mahamood Maricar and M.S.Mohamed Hussain Saibu Maricar wherein also, the recitals https://hcservices.ecourts.gov.in/hcservices/ would detail the ancestral nature of the suit property. The deposition of P.W.1(P3) would amply make the point clear that the mortgagees under Ex.A1 made over the said mortgage in favour of one M.S.Ummal Varah Mehanur Beevi and it was mortgaged by the mortgagor on 11.09.1984 as evidenced by Ex.A10. He would also narrate and delineate in his deposition that the deceased Pattu Gurukkal paid land tax also as evidenced by Ex.A13 and also tax for the three houses bearing Nos.11, 11/1 and 26/1 which are in the suit properties as evidenced by Exs.A14 to A16. Exs.A17 and A18 would speak to the effect that Pattu Gurukkal availed loan from the Karaikal Municipality and constructed a latrine in the suit property. Ex.A19 would convey the picture that during the year