Decided on April 09,1974

GOURI PILLAI Respondents


- (1.) This appeal preferred with leave granted by Krishna Iyer J. of this Court, (as he then was) is against the decision of the learned Judge in Second Appeal No. 53 of 1968, and raises an interesting question of adverse possession and limitation.
(2.) The suit out of which this appeal arises, was for partition of two items of immovable properties. The legal representatives of the 2nd defendant, and the 3rd defendant, are the appellants before us. Item 1 was seven cents in Sy. No. 1479, of a total extent of 10 cents; item 2 was 8 cents in Sy. No. 1478, of a total extent of eighteen cents. Both these Sy. Nos. of a total extent of twenty eight cents, belonged to one Gouri Pillai. By Exts. P-3 and P-4 sale deeds dated 1-2-1108 and 15-9-1106, she conveyed three cents in Sy. No. 1479 and ten cents in Sy. No. 1478 to her brother Narayana Pillai. The remaining extent of the two survey numbers was sought to be partitioned in the suit. Gouri Pillai died in 1114 M. E., leaving as her legal representatives, her two brothers, Govinda Pillai and Narayana Pillai. Narayana Pillai was insane from 1113 M. E. and died on 9-7-1952. Govinda Pillai died in 1963. The plaintiffs are the widow and children of Narayana Pillai. The Ist defendant is the daughter of Govinda Pillai and defendants 2 and 3 are the alienees of the items from Govinda Pillai and his daughter under documents and circumstances to be noticed presently. The defence was that the plaintiffs' rights had been barred by adverse possession and limitation. This was rejected by the Trial Court, which decreed the plaintiff's suit. The lower appellate court reversed the decree and dismissed the suit. In Second Appeal, Krishna Iyer J. restored the Trial Court's decree.
(3.) Gouri Pillai had a mortgage right over an adjacent property, Sy. No. 1477. This, and the plaint items, had all been improved by Govinda Pillai and a building had been put up by him in Sy. No. 1477 in which Gouri Pillai had only a mortgage right. In view of the insecure nature of Gouri Pillai's rights, an agreement Ext. D-1 dated 15-12-1111 had been entered into between Gouri Pillai and Govinda Pillai under which it was agreed that in the event of eviction of Gouri Pillai from Sy. No. 1477, the building constructed thereon by Govinda Pillai will be shifted to either of the plaint items, that Govinda Pillai would be allowed to make further improvements in the plaint items, and be paid Rs. 400, for the improvements effected in the mortgaged property which was to be paid by Gouri Pillai, and on default to be realised from her properties. Govinda Pillai was allowed to make further improvements. The value of improvements thus due to Govinda Pillai had not been paid to him and he was in possession of the plaint schedule properties. While so, after the death of Gouri Pillai there were lunacy proceedings instituted by the Ist plaintiff in respect of the person and properties of Narayana Pillai and for appointing her as Manager of the estate of Narayana Pillai. Ext. P-5 dated 2-5-1116 is a copy of the objections filed by Govinda Pillai in the said petition. He stated therein that Gouri Pillai had agreed that till Rs. 400 due to him for improvements made in the mortgaged item, was paid to him, he could keep possession of the plaint items, and that he was accordingly in possession till the said four hundred rupees and a sum of 700 fanams incurred by him for funeral expenses of Gouri Pillai, were paid, (Ext. P-2 dated 5-9-1114 is an Otti by Govinda Pillai of three cents to Narayana Pillai's daughter Kamalamma for these 700 fanams). Ext. D2 dated 6-11-1116 is a copy of the order on the Lunacy Petition. The application by the 1st plaintiff was granted in respect of all the properties of Narayana Pillai except those which were claimed by Govinda Pillai under Ext. P5 written statement. While Govinda Pillai was thus in possession of the plaint items, he gifted these to his daughter (1st defendant) by Ext. D3 dated 8-11-1119, reserving with him a right of enjoyment till his death. He and his daughter then executed a usufructuary mortgage in 1120 regarding six cents of item 1 in favour of Kanthimathi Ammal (document not produced). They then executed Ext. D4 sale deed dated 24-7-1121 regarding the equity of redemption of item 1 to the 2nd defendant. The 2nd defendant took a release of the mortgage right and obtained possession of item 1 on 7-2-1122, under Ext. D8, Regarding item 2 Govinda Pillai and the 1st defendant executed a usufructuary mortgage Ext. D7 in 1124 to Kanthimathi Ammal in respect of five cents and in 1961, by Ext. D5 they sold the equity of redemption regarding the five cents to the 3rd defendant. The 3rd defendant took a release of Ext. D7 mortgage under Ext. D6 dated 21-10-1963. The remaining three cents of item 2 are in possession of the 1st defendant as owner under Ext. D3 gift. It is in the light of these facts, that the plea of adverse possession falls to the examined.;

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