Madras High Court
Rangasamy Pillai (Died) vs Gowri Ammal on 21 May, 2026
S.A.Nos.550 & 551 of 1999
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On: Pronounced On:
27.11.2025 21.05.2026
CORAM:
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.Nos.550 & 551 of 1999
In S.A.No.550 of 1999:
1.Rangasamy Pillai (Died)
2.Kesavan
3.Thiruvengadam
4.Rajalakshmi ... Appellants
(Appellants 3 to 4 brought on
record as legal representatives
of the deceased first appellant
vide order dated 29.04.2024
vide memo dated 29.04.2024)
Vs.
1.Gowri Ammal
2.Kumar
3.Jagadeeswari
4.Uma Maheswari
5.Prema Ammal
6.Minor Gopalakrishnan
rep. By next friend & mother,
5th respondent
... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgment and decree dated 24.02.1995 and
made in A.S.No.118 of 1993 on the file of the learned Subordinate
Judge, Cuddalore, confirming the Judgment and Decree dated
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29.03.1993 and made in O.S.No.891 of 1989 on the file of the
learned District Munsif Court at Panruti.
For Appellants : Mr.T.R.Rajagopalan,
Senior Counsel for
Ms.Chitra Maragatham
For Respondents : Mr.Chellamuthu Rangarajan
In S.A.No.551 of 1999:
1.Sundaram (Died)
2.Muthu
3.Bhuvaneshwari
4.S.Raja
5.S.Kothai ... Appellants
(Appellants 3 to 5 brought on
record as legal representatives
of the deceased first appellant
vide order dated 07.07.2024
made in CMP.No.2154 of 2020)
Vs.
1.Gowri Ammal
2.Kumar
3.Jagadeeswari
4.Uma Maheswari
5.Prema Ammal
6.Minor Gopalakrishnan
rep. By next friend & mother,
5th respondent
... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgement and decree dated 24.02.1995 and
made in A.S.No.116 of 1993 on the file of the learned Subordinate
Judge, Cuddalore, confirming the Judgment and Decree dated
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29.03.1993 and made in O.S.No.891 of 1989 on the file of the
learned District Munsif Court at Panruti.
For Appellants : Mr.T.R.Rajagopalan,
Senior Counsel for
Ms.Chitra Maragatham
For Respondents : Mr.Chellamuthu Rangarajan
COMMON JUDGMENT
These two second appeals arise out of the common
judgment in A.S.No.116 of 1993 and A.S.No.118 of 1993 dated
24.02.1995 in confirming the judgment and decree of the court of
the District Munsif, at Panruti, in O.S.No.891 of 1989 dated
29.03.1993.
2.The two sets of appeals arise out of a single suit for
declaration and injunction filed by the respondents herein.
3.For the sake of convenience, the parties shall be referred
to as per their ranks in the suit.
4.O.S.No.891 of 1989 was presented for the following
reliefs:-
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(i) for a declaration of the plaintiffs’ title to the suit
properties,
(ii) for permanent injunction restraining the defendants
from interfering with the plaintiffs’ peaceful possession and
enjoyment; and
(iii) for costs.
Case according to the plaint:-
5.The plaintiffs pleaded that the suit properties are
ancestral properties of two brothers, Seetharama Pillai and
Ranganatha Pillai. Seetharama Pillai is the husband of the first
plaintiff and the father of the plaintiffs 2 to 4. Ranganatha Pillai is
the husband of the fifth plaintiff and the father of the sixth plaintiff.
6.The property devolved on the two brothers from their
grandfather, Kanchamala Pillai. Kanchamala Pillai had only one
son, by name, Pachai Pillai. Kanchamala Pillai died 50 years ago.
Pachai Pillai died 55 years prior to the presentation of the suit. On
their death, Pachai Pillai’s sons succeeded to the estate and were in
possession and enjoyment of the same. They were paying kist and
other revenue receipts. 10 years earlier to the suit, Seetharama
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Pillai passed away and soon thereafter, Ranganatha Pillai too,
passed away in the year 1980.
7.The cause of action for the suit arose when the
defendants, who have no right, title, or interest over the property,
attempted to disturb the peaceful possession of suit property by the
plaintiffs. The reason for the disturbance being that they had sought
the plaintiffs to alienate the properties in their favour. As the
plaintiffs refused to accede to their demand, they tried to take
forcible possession of the property. Hence, a suit for the aforesaid
reliefs.
8.Summons were served on the defendants. The 4 th
defendant filed a written statement, which was adopted by the other
defendants.
Case according to written statement
9.According to the 4th defendant, the plaintiffs were never
in possession and enjoyment of the property, nor have they shown
on what basis they claim title to the suit properties. According to
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them, the suit items belonged to one, Parasurama Pillai. He had 3
issues, namely,
(i) Kumarasamy Pillai,
(ii) Kanchamala Pillai, and
(iii) Govindsamy Pillai.
Though their surnames were pillai, they were also known as
udayars.
10.In a partition amongst them, the suit items were
allotted to the first son, Kumarasamy Pillai. Govindaswamy Udayar
was allotted S.No.588/4 and other properties were allotted to
Kanchamalai Pillai. Kanchamalai Pillai mortgaged the properties
allotted to him to one, Sadhasivam Reddiar. He accepted that 37
cents in S.No.588/3 belonged to the ancestor of the defendants,
namely, Kumarasamy Pillai.
11.Kumarasamy Pillai had a son by name, Subburaya
Pillai. Subburaya Pillai secured the suit properties by way of a
settlement deed executed by Kumarasamy Pillai in his favour.
Subburaya Pillai executed a ‘WILL’ on 29.07.1956, bequeathing the
property to his two sons, Palanisamy and Kannan. Kannan died
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issueless. Therefore, Palanisamy became the absolute owner of the
suit properties. The defendants 1 and 2 are the sons of Palanisamy.
They had been in possession and enjoyment of the property. They
sold suit item No.2 to the fourth defendant for a valid consideration
of Rs.9,450/- on 01.12.1989. The fourth defendant got the
remaining extent from the defendants 1 and 2, by way of an
exchange deed, executed on the same day.
12.Insofar as the first item of the property is concerned,
they pleaded that defendants 1 and 2 had been in enjoyment of the
same. In addition, it was pleaded that in S.No.587/3, 46 cents
belonged to Seetharama Pillai, the husband of the first plaintiff and
the father of the plaintiffs 2 to 4 and that, the property laying on the
eastern side of S.No.587/3, that is, S.No.587/2-0.46 belonged to
Sundaram. For convenient enjoyment, the first defendant and
Seetharama Pillai exchanged the property in S.No.587/3 and
S.No.587/2. On these pleadings, the defendants sought dismissal of
the suit.
Gist of Additional Statement
13.Subsequently, the first defendant, with the permission
of the Court, filed an additional written statement. This statement
too, was adopted by the other defendants. Apart from restating the
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contentions raised in the original written statement, it was pleaded
that the second item of the property was let out by the fourth
defendant to one, Rajangam on 04.12.1989, under an unregistered
lease deed, and that, Rajangam is a proper and necessary party to
the suit. They urged that as Rajangam had not been impleaded as a
party, the suit deserved to be dismissed for non-joinder of necessary
parties.
14.On the basis of these pleadings, the learned Trial Judge
framed the following issues:
“1/ jhth brhj;J thjpfSf;F ghj;jpak; vd;gJ rhpah>
2/ jhth Kjy ; ,yf;fr ; brhj;ij 1. 2 vjph;thjpfs;
mDgtpf;fpwhh;fs; vd;gJ rhpah>
3/ jhth 2?k ; ,yf;fr ; brhj;J 4?k ; vjph;thjpf;F
fpuaj;jpd; K:yKk;. ghpth;j;jid K:yKk; ghj;jpak; vd;gJ
rhpah>
4/ thjpfs; vjph;thjpfSf;F fpilf;Fk; ,ju ghpfhu’;fs;
vitnaDk; cz;lh>”
15.On the side of the plaintiffs, the first plaintiff, Gowri
Ammal examined herself as PW1. She marked Ex.A1 to Ex.A17 to
substantiate her case. The first defendant examined himself as
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DW1, and the third defendant as DW2 and one, Selvam as DW3.
They marked Ex.B1 to Ex.B24.
16.After an analysis of the evidence and documents, the
learned Trial Judge decreed the suit as prayed for.
17.Aggrieved by the same, two sets of first appeals were
preferred to the learned Subordinate Judge at Cuddalore.
A.S.No.116 of 1993 was preferred by the defendants 1 and 2 and
A.S.No.118 of 1993 was preferred by the defendants 3 and 4.
18.As the appeals assailed the judgment and decree in a
single suit, the learned Subordinate Judge clubbed both the
appeals. He dismissed them by way of a common judgment dated
24.02.1995. Aggrieved by the same, the present second appeals.
19.This Court vide order dated 30.04.1999, admitted the
second appeals on the following substantial questions of law:-
“(1) When the plaintiffs have admitted the title
of Parasuram Govindan, the common ancestor
and having not proved allotment of the suit
properties in their favour is the learned9/50
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S.A.Nos.550 & 551 of 1999Subordinate Judge right in granting a Decree
when there is no place of ouster?
(2) When there are documents to show the title
of the plaintiffs from 1919, is the learned
Subordinate Judge right in rejecting the claim
of the defendants?”
20.I heard Mr.T.R.Rajagopalan for Ms.Chitra Maragatham,
for the appellants and Mr.Chellamuthu Rangarajan for the
respondents.
21.The admitted genealogy of the parties is as hereunder:-
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22.Mr.T.R.Rajagopalan urged that the Trial Court as well
as the lower appellate court did not appreciate the vital documents
under Ex.B1, Ex.B2, Ex.B10 and Ex.B11. He pointed out that under
Ex.B1, partition had taken place between the father, Parasurama
Pillai and his sons, Kumarasamy Pillai, Kanchamala Pillai and
Govindasamy Pillai. Suit item No.1 had been allotted to
Kumarasamy Pillai, the ancestor of the defendants 1 and 2.
23.Placing reliance upon Ex.B2, Mr.T.R.Rajagopalan urged
that Kumarasamy Pillai’s son, Subburayan had been benefited with
a settlement deed and that he had, in turn, bequeathed the property
under Ex.B3 to his sons, Palanisamy and Kannan. Relying upon
these documents, he submitted that the defendants had proved
their title over the first item of the suit property.
24.Insofar as the second item of the suit properties is
concerned, Mr.T.R.Rajagopalan relied upon Ex.B19 and Ex.B20,
namely, the exchange deed entered into between defendants 1 and 2
with the fourth defendant and the sale deed executed by defendants
1 and 2 in favour of the fourth defendant.
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25. After reading the plaint, he pointed out that the
plaintiffs have not pleaded as to how they have come into the
possession of the property and that, a suit for title cannot be
decreed on the basis of the weakness in the case of the defendants.
He stated that the plaintiffs have not produced any record other
than the revenue records, whereas, the defendants have produced
registered documents, and therefore, the courts below should have
weighed in favour of the defendants and not in favour of the
plaintiffs.
26.In support of his pleas, Mr.T.R.Rajagopalan relied upon
the following judgments:
(i) State of Uttarakhand and Another Vs.
Mandir Sri Laxman Sidh Maharaj, (2017)
9 SCC 579;
(ii) City Municipal Council Bhalki Vs.
Gurappa (Dead) by legal representatives
and Another, (2016) 2 SCC 200;
(iii) Union of India and others Vs. Vasavi
Cooperative Housing Society Limited and
Others, (2014) 2 SCC 269; and
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(iv) Corporation of the City of Bangalore
Vs. M.Papaiah and Another, (1989) 3 SCC
612.
27.Mr.Chellamuthu Rangarajan pointed out that the
plaintiffs had produced revenue records dating back several years,
prior to the presentation of the plaint. This, when read with Ex.A10
and Ex.A11, would point out that the plaintiffs’ predecessors had
title and that they had been in possession and enjoyment of the suit
property. He further urged that the defendants’ predecessor,
Subburaya Pillai had attested the document under Ex.A11, which
indicates that the case, as projected by the plaintiffs, is true and
genuine and the plea that Subburaya Pillai had taken possession of
the property from Kumarasamy Pillai, is untenable. He urged that
there is no necessity to implead the lessee of the fourth defendant,
when the fourth defendant had already been made as a party to the
proceedings. Finally, he urged that, no question of law arises for
consideration in the second appeal and that, the trial court and the
lower appellate court had rightly appreciated the evidence and had
decreed the suit and hence, the appeal may be dismissed with costs.
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28.I have carefully considered the submissions made on
either side and have gone through the records.
29.I shall first discuss Mr.T.R.Rajagopalan’s plea on the
lack of pleadings in the plaint. He drew my attention to the
aforesaid judgments of the Supreme Court and pointed out that as
sufficient pleadings have not been made, the suit has to fail.
30.I should point out here that the suit arises from a
mofussil area. Right from the time when the law was being settled
for this country by the Board of Privy Council, the courts have been
directed to adopt a liberal approach in matters arising from such
areas. The rationale was to overlook the technical drafting defects,
which are common in rural areas, and to focus on substance and
intent of the parties. (See, Mohd Zahoor Ali khan v. Mussumat
Thakooranee Rutta Koer (1867) 11 MIA 468 and Secretary for
State for India-in-Council v. Laxmibai, (1922-23) 50 IA 49 = AIR
1923 PC 6).
31.Mofussil pleadings are generally loose on account of the
low level of legal literacy available in those parts of the country. A
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Civil Court and especially this court, sitting as a High Court, should
not adopt a hyper technical interpretation of mofussil pleadings. If
so done, it can lead to injustice. A broad, purposeful approach is
warranted to advance substantive justice. (See, Devasahayam v.
P.Savithramma, (2005) 7 SCC 653 and Des Raj v. Bhagat Ram,
(2007) 2 SCC 641)
32.As pointed out by Justice Krishna Iyer in S.B. Noronah
Vs. Prem Kumari Khanna, (1980) 1 SCC 52, Indian Courts should
not construe the pleadings with same rigidity as in the courts in
England. Iyer, J. pointed out that pleadings have to be interpreted,
not with formalistic rigor, but with latitude, and awareness of the
low levels of legal literacy amongst litigants. I am aware, he dealt
with the case of eviction, but his observations, which I extract
hereunder, would apply to civil proceedings also:-
“Pleadings are not statutes and legalism is
not verbalism. Common sense should not be
kept in cold storage when pleadings are
construed.”Hence, I will not see the plaint filed in a mofussil area in
the same manner as I would have, if it had been a plaint filed in a
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construction it deserves.
33.The Code of Civil Procedure is a Code of fairness and
reason. It has been so carefully drafted because it intends to ensure
that no party can taken by surprise. Had the lack of pleadings made
a material difference to the case, certainly, I would have agreed with
Mr.T.R.Rajagopalan. In fact, Order VI Rule 2 demands a statement
in a concise form of material facts. There is no requirement for the
plaintiff to plead about all the documents and witnesses, which
he/she would have to exhibit, produce and prove during the course
of trial.
34.Reading of the plaint discloses that the plaintiffs
pleaded the suit properties were ancestral properties, having
devolved upon them, on account of death of their ancestors, and
more recently of the husband of the first plaintiff and the husband
of the fifth plaintiff. When a party claims that the property to be an
ancestral one, the Court cannot insist upon production of registered
documents for the same. Furthermore, the defendants are not taken
by a surprise, as they too, admit to the ancestral nature of the
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property. In facts, they plead, suit item No.1 as ancestral in nature.
Hence, essential averments, being present, the suit does not fall for
lack of pleadings.
35.Insofar as the plea of non-joinder of parties is
concerned, all that I have to refer to is Section 99 of the Code of
Civil Procedure. Under the said provision, no decree shall be
reversed or substantially varied nor an appeal be remanded for the
mere reason of mis-joinder or non- joinder of any party or cause of
action or any error, defect or irregularity in any proceedings in the
suit, as long as it does not affect the merits of the case or the
jurisdiction of the Court.
36.In a suit for title and injunction, when the lessor,
namely, the fourth defendant has been arrayed as a party; a person,
claiming to be a lessee under the lessor, cannot be treated as a
necessary party to the suit. A lessee cannot have a higher defense
than the lessor. When the lessor has filed a written statement and
had been contesting the suit, the presence of Rajangam, the alleged
lessee of the fourth defendant, in my view, is neither essential nor
necessary. Hence, Section 99 of the Code applies in full force.
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37.Apart from that, I have gone through the grounds of
appeal in A.S.No.116 of 1993 and A.S.No.118 of 1993. In both
grounds of the appeals, the plea of non-joinder has not been raised.
I should point out that Mr.T.R.Rajagopalan had, in fact, touched
upon this issue, but did not place much emphasis on the same.
Hence, the plea of non-joinder stands rejected.
38.I will deal with the second item of the property, before I
turn to the first item.
39.The case of the defendants is based on Ex.B19 and
Ex.B20. The suit came to be presented on 04.12.1989. The two
documents relied upon by the defendants have come into force on
01.12.1989. A perusal of Ex.B20, shows that defendants 1 and 2
had alienated the property in favour of the fourth defendant, on
01.12.1989. Curiously enough on the very day, i.e., 01.12.1989, the
fourth defendant and defendants 1 and 2 had entered into an
exchange deed. In addition, a perusal of Ex.B19 shows that the
defendants 1 and 2 have not traced their title to the property but
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merely pleaded that they came in possession of the property
ancestrally.
40.The documents, which came into force just before filing
of the suit, have to be generally viewed with suspicion. A Court, will
not place much reliance on such a document, as compared to the
documents, which have come into being in the normal course. I
should hasten to add that there is no bar on the admissibility of
such a document. However, the court must view the documents
carefully and analyse the same, in order to determine their
authenticity. It is normal that a litigant does not rush to a court.
He/she would try to resolve the issue without knocking its doors
immediately. It is under such circumstances that the opposite party
might create documents, in order to defeat them in the litigation.
41.Mere filing or marking of the document as an exhibit
does not automatically prove that its contents are genuine. Civil
Courts must judicially analyse its authenticity and the necessity for
executing the document, just before filing of the suit. If I look at
Ex.B19 and Ex.B20 from this perspective, I am afraid the contents
of the documents do not have a ring of genuineness around them.
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42.If defendants 1 and 2 were actually in possession and
enjoyment of the property and had executed the sale deed in favour
of the fourth defendant, the reason for executing an exchange deed,
on the very same day as the sale deed, is puzzling. It gives an
impression as if the documents had been brought about in order to
get them reflected in the encumbrance certificate. It is natural that
in a sale deed the title of the vendor is traced. However, Ex.B19 and
Ex.B20 are, as brief, as it can be.
43.The plaintiffs claimed title on the basis of the revenue
records and two mortgage deeds. The trial court had analyzed the
issues involved in the suit from that perspective and decreed the
suit. The lower appellate Court dismissed the appeal on the ground
that the defendants had not proved their title to the suit property.
44.It is too well settled position of law that, in a suit for
declaration of title, the burden always lies on the plaintiffs to
establish a clear case for such a declaration, and for the mere
weakness of the case of the defendants’, the suit cannot be decreed.
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45.I would go further on this aspect. Even if the defendants
were to remain ex-parte in a suit for declaration of title, the court
ought not to decree the suit. It should still call upon the plaintiffs to
establish their title to the property. On that aspect, I am entirely in
agreement with Mr.T.R.Rajagopalan. The judgment relied upon by
him in Vasavi Cooperative Housing Society Limited’s case settles
this position.
46.In gist, the case of the plaintiffs is that the property
belonged to their ancestor one, Kanchamala Pillai, and on his death,
the property came to Kanchamala Pillai’s son, Pachai Pillai. Pachai
Pillai had two sons, namely, Seetharama Pillai and Ranganatha
Pillai. The brothers passed away and the property devolved on the
plaintiffs. As they feared interference from the defendants and since
their title was being denied, they came forth with the suit for
declaration and injunction.
47.On the other hand, the defendants claimed that the
property belonged to one Parasurama Pillai, who had three sons,
namely, Kumarasamy Pillai, Kanchamala Pillai and Govindasamy
Pillai. In the partition effected between the sons of Parasurama
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Pillai, the suit schedule mentioned property fell to the share of
Kumarasamy Pillai. Kumarasamy Pillai had four sons, namely,
Aadhimoola Pillai; Saravana Pillai; Dharmalinga Pillai and
Subburaya Pillai and a daughter by name Pachaiammal Rathinam.
In the partition effected between the brothers, the suit property fell
to the share of Subburaya Pillai. Subburaya Pillai had two sons by
name, Palanisamy and Kannan. Kannan died issueless and the
entire property fell to the share of Palanisamy. Palanisamy was alive
till the year of 1984 or thereabouts. On his death, defendants 1 & 2,
who are his children, took over the estate and they are now in
possession and enjoyment of the property.
48.In order to substantiate their case, the plaintiffs filed
Exs.A10 and A11. The documents are of the year 1923 & 1924.
Under Ex.A10, Kanchamala Pillai and Pachai Pillai, the father and
son, and the predecessors of the plaintiffs, executed a mortgage
deed in favour of one Lakshmi Narayana Chettiar.
49.Under Ex.A11, Kanchamala Pillai executed a mortgage
deed in favour of M/s.EID Parry, situated at Nellikuppam in
Cuddalore District. Apart from this, the plaintiffs filed Ex.A12 and
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Ex.A13, namely, the settlement record for Survey No.588/3 and the
patta granted for S.No.588/3, in the name of Seetharaman Pillai,
their predecessor, during the UDR proceedings. Apart from these
two primary documents, the plaintiffs also filed Exs.A1 to A6, being
the revenue receipts issued from the year 1985 till 1991 in the
name of the second plaintiff, Kumar.
50.It is pertinent to point out that, in Ex.A11, the sons of
Kumarasamy Pillai, namely Aadhimoola Pillai and Saravana Pillai
had signed the document as witnesses. Looking at the schedule, it
is clear that Survey No.588/3, to an extent of 87 cents, was the
subject matter of transaction, which is one of the suit schedule
mentioned properties.
51.In assertion of their title, the defendants rely upon
Ex.B1, which is a partition deed executed during the lifetime of
Kumarasamy Pillai, to his four sons namely, Aadhimoola Pillai,
Saravana Pillai, Dharmalinga Pillai and Subburaya Pillai. Ex.B2 is a
settlement deed executed by Subburaya Pillai in favour of his then
minor son, Palanisamy, who was represented by his mother and
natural guardian, Thaiyalnayagi Ammal. Ex.B3 is a “WILL” written
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by Subburaya Pillai, which was attested by two witnesses, namely,
Purushothaman and Chokkanathan. Though no death certificate
had been filed to prove that Chokkanathan had passed away, the
defendants had examined one Selvam, son of Chokkanathan as
DW3, to bring forth before the Court that Chokkanathan is no more.
They also presented Ex.B14 and Ex.B15, which are the documents
executed by Palanisamy, the father of the defendants, in favour of
M/s.EID Parry and the Identity Card showing that Palanisamy was
a small farmer. In order to press home the point that Kumarasamy
Pillai was entitled only to another property and not the suit
schedule mentioned property, the defendants produced Exs.B16 to
B18. Ex.B16 is a mortgage deed executed by their junior paternal
uncle Govindasamy Pillai, in favour of one Nadesa Pillai.
52.With respect to the portion of extent of Survey
No.588/3, whereunder it was shown that Kumarasamy Pillai is
entitled to the eastern portion of the property under the mortgage.
Ex.B17 and Ex.B18 are two sale deeds with respect to Survey
No.587/3. Under Ex.B17, Seetharama Pillai had purchased 45
cents from one Kaliyaperumal Chettiar, and in the boundary recital,
it was shown that the property belongs to one Palani. On the basis
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of these documents, the defendants urge that the plaintiffs are not
the owners of the property, but the defendants are the owners
thereof. Hence, according to them, the document executed under
Ex.B19 and Ex.B20 are valid and the suit has to be dismissed.
53.Before I embark on a discussion, I have to appreciate
the manner in which a civil proceeding, relating to a declaration of a
title has to be dealt with. A Court, while dealing with a civil
proceeding, deals so on the basis of the evidenciary rule of
preponderance of probabilities, unlike in case of criminal
proceeding, which goes on the basis of standard of proof beyond
reasonable doubt.
54.What is then the principle of preponderance of
probabilities? The test being, whether the plea raised by the plaintiff
is more probable than its non-existence. The plaintiffs are required
to prove that their case is more plausible than that of the
defendants. In case, the proof let in by the plaintiffs and defendants
are equally balanced, then the Court normally should come to the
conclusion that the plaintiff has not met the standards required and
should look against the plaintiff. It has been pointed out by Courts
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and Jurists that, the nature of exercise undertaken by a Court is
not with mathematical precision or appreciation as done in science.
It is the consideration of the Court, which involves the overall
assessment of the evidences placed before it, keeping in mind
reliability, credibility and the value of the evidence, in order to come
to a conclusion which of the case projected by the parties is more
probable. The conclusion is not absolute or scientific. I should refer
here to Section 35 of the Specific Relief Act, which points out that a
declaration of title could be binding only inter parties.
55.Ex.A10 and Ex.A11, were at least 60 years in age, when
they surfaced before the Court. Under Ex.A11, the mortgage deed
had been executed by the predecessors of the plaintiffs with respect
to Survey No.588/3, 282/2 and 615/5 of the same village. The
predecessors of the defendants, who were the nephew – cousins of
the executants had attested the document. As a general principle,
mere attestation of a document does not operate as an estoppel. An
attesting witness is concerned primarily, to verify the fact of
execution. That is to say, they stand before the Registering
Authority, to state that the signature of the executant had been
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made in their presence. Such an attestation does not certify nor can
be treated as consenting to the contents of the documents itself.
56.This general rule has certain exemptions. The earliest of
the case where attestation of a document was used as estoppel was
in Kandasami Pillai Vs. Rangasami Nainar (died) and others,
(1912) 23 MLJ 301.
57.This case was dealt with by a Division Bench consisting
of Sundara Aiyar and Sadasiva Aiyar, JJ. No less than a person
Mr.Seshagiri Aiyar, later on a Judge of this Court and the head of
the Civil Bar, had argued against the proposition. The case arose
under the following circumstances:-
57(i).The plaintiff had purchased the property from the
second defendant. Earlier to the sale, the first defendant had
purchased the same property in a Court auction sale. It was urged
by the plaintiff that the first defendant was a benamidar and the
real owner of the property was the second defendant. The first
defendant resisted the suit asserting his own title to the property. It
was argued that Section 317 of the Code of Civil Procedure (then
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prohibited any civil action against auction purchasers on the
ground that the purchase was made by them on behalf of another.
57(ii).It was pointed out by the plaintiff that the first
defendant had attested the sale deed that had been executed by the
second defendant in his favour. The first defendant had urged that
he had attested the document without any knowledge of the
contents thereof. Relying on the judgment in Sarat Chunder Dey
Vs. Gopal Chunder Laha, (1887) ILR 11 Mad 234 (PC), Justice
Sundara Aiyar, held that the attestation made by the first defendant
was intended to re-assure the plaintiff while taking a sale deed from
the second defendant that he is not objecting to the transfer of title.
On these grounds, the Court held that he is estopped from going
back on the same. Justice Sadasiva Aiyar went a step further and
held that, having regards to the ordinary course of conduct of
Indians in the Madras Presidency, attestation by a person who has
or claims any interest in the property covered by the document
must be treated prima facie as a representation by him that the title
and other facts relating to title recited the document are true and
will not be disputed by him as against the obligee under the
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of Justice Sundara Aiyar and held that the attestation was binding.
58. I should point out here that, while sitting with
Sankaran Nair, J., Sadasiva Ayyar, J. reiterated this view in
Narayana Aiyar and others v. Rama Aiyar, (1915) ILR 38 MAD
396. This view found acceptance in the hands of another illustrious
Judge, Justice C.V.Kumaraswami Sastri in Nayakammal v.
Munuswami Mudaliar, (1924) 20 LW 222. Justice Kumaraswami
Sastri observed,
“I have rarely come across a case where a
person having an interest present or contingent in the
property has attested the deed without enquiring into
its contents.”
59. The Privy Council, while calling upon this practice of
attestation be given up, did not overrule the view taken by the
Madras High Court. This was in Banga Chandra Dhur Biswas v.
Jagat Kishore Acharjya Chowdhuri, (1916) 31 Mad LJ 563.
60. Justice M.M.Ismail (as he then was), after a detailed
survey of all the precedents, came to a conclusion that the positions
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laid down by these verdicts have to be followed. This was in
Ramaswamy Gounder, Chinnasami Gounder v.
Ananthapadmanabha Iyer, 1967 SCC Online MAD 269. The view
taken by Justice Ismail was found acceptance in the hands of
another Division Bench of this Court in Jagannatham Pillai v.
Kunjithapatham Pillai, AIR 1972 MAD 390 and in Kanagavalli
Ammal v. Ulaganatha Pillai, 1977 TLNJ 174.
61. At this stage, I should point out that another Division
Bench in K.A.Selvanachi v. Dr.S.R.Sekar, (2003) 1 CTC 745 (DB)
referred to the aforesaid verdicts and took a view that mere
attestation of a document does not by itself impute knowledge of the
contents thereof and does not create an estoppel.
62. A careful perusal of Selvanachi’s case shows that in
paragraph 9 of the said judgment, the Division Bench had taken a
view as if the verdicts rendered by Sadasiva Ayyar, J. in
Kandasamy’s case and Narayana’s case were so done sitting
singly. However, as pointed out earlier, both the judgments were of
Division Benches, which were subsequently followed by the learned
Single Judge and in turn, approved by anther Division Bench. To
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make it clear, Kandasamy’s case was rendered by the Division
Bench of Sundara Ayyar, J. and Sadasiva Ayyar, J. and Narayana’s
case was rendered by Division Bench of Sankaran Nair, J. and
Sadasiva Ayyar, J.
63. To complete the narration, I will now refer to the
judgment reported in Parasuram Mudaliar v. Devaki Bai, 1979
TNLJ 326. This judgment was rendered by another eminent Single
Judge of this court, Justice Sathiadev.
64. Let us look at the case in detail. It was a case where the
property belonged to a lady ‘K’. She and her husband begot four
children, three daughters and a son. On her death, her husband
executed a settlement deed in favour of the son. The daughters
attested the deed.
65. Two contentions were placed before Justice Sathiadev.
One was that the property belonged to K’s husband and not to K.
Secondly, as the three daughters had attested the settlement deed,
they had surrendered their rights in favour of their brother, the
beneficiary under the settlement deed.
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(a) On the first aspect, His Lordship came to a conclusion
that, since the settlement deed itself conceded the right of K, the
plea that the settlor, K’s husband was the owner of the property has
to be rejected.
(b) On the plea of attestation acting as an estoppel, the
learned Judge did not dissent from the view that the law on estoppel
would operate in case of attestation. He noted, on facts, that the
attesting witness was examined as a witness and she had stated
that she had signed the document without being aware of the
contents. This is clear from the penultimate paragraph of the notes
at Page No. 328, wherein he held that when the attesting witness
satisfactorily explains to the Court as to why she attested the
document, there is no scope for legal inference. It was a case where
the presumption was explained on facts.
66. The attention of the Division Bench in Selvanachi’s
case had not been drawn to the view taken by the Supreme Court in
Badri Narayanan v. Rajabhagyathammal, (1996) 7 SCC 101.
The Supreme Court had referred to the views taken by Justice
Sadasiva Ayyar and of the one taken by Justice Sathiadev in the
aforesaid cases. The Supreme Court had approved the view of
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Justice Sathiadev. The Court did not overrule the view taken by
Justice Sadasiva Ayyar but held that the attestation amounts to
presumption of fact, whose efficacy and evidentiary value depends
on the facts of the given case. Hence, the law on presumption that
has been laid down in Kandasami Pillai’s case continues to be in
force.
67. Hence, the consistent view right from 1912 downwards
is that, where a person has admittedly a tangible interest in the
property, affected by a deed, attests a document, a presumption
arises that he knew of its contents and consented to the same. It is
always open to a party to let in evidence to show why that
presumption would not apply to his case.
68. The situation that arises when attestation is made by
one brother in a document executed by another brother was a
subject matter of consideration in Matadeen Roy Vs. Mussodun
Singh, (1868) 10 W.R. (C.R.) 293. The Calcutta High Court
specifically dealt with the effect of attestation. The Court held:-
“when the plaintiff put his name as a witness
to his brother’s signature to a deed conveying
the whole of the property, the Court might34/50
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S.A.Nos.550 & 551 of 1999reasonably infer that he knew that his brother
was selling the whole of the property. If he
knew that his brother was selling the whole of
the property as his own, and allowed him to
do so without objection, it would be an
evidence against him either that the whole of
the property did belong to his brother or that
he was acquiescing in his brother’s act of
selling the whole”.
69.Therefore, the attestation made by closely knit relative
to a document executed by another relative cannot be given the
same treatment as a document which is attested by utter strangers.
70. If the property had been allotted in partition under
Ex.B1 to Kumarasamy Pillai, it would obviously be difficult for any
of his sons, including Aadhimoola Pillai and Saravana Pillai, to
attest the mortgage deed executed by Kanchamala Pillai in favour of
the third party, M/s.EID Parry, for the very same property said to
have been allotted to their father. Further, the distance of time
between Ex.B1, Ex.A10 and Ex.A11 is not too long. It is a couple of
years. The assertion by descendants, namely, Defendants 1 and 2
herein, as pointed out earlier, has come about after six decades.
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Hence, on appreciation of the evidences, this court would go with
Ex.A10 and Ex.A11 rather than relying upon Ex.B1.
71.I do not want to rest my conclusion only on the basis of
attestation of a document. Let us take a sheet anchor of the case of
the defendants. It is Ex.B1. Ex.B1 is a document that was executed
by the sons of Kumarasamy Pillai, namely, Aadhimoola Pillai,
Saravana Pillai, Dharmalinga Pillai and Subburaya Pillai. In this
document, there is no tracing of title by the executants.
72.The execution of Ex.B1 was with respect to one branch
of Parasurama Pillai’s family alone. There is no reference as to how
the property came down to Kumarasamy Pillai from Parasurama
Pillai. The admitted genealogy extracted above shows that the
common ancestor of the plaintiffs and defendants, Parasurama
Pillai, had three sons, namely, Kumarasamy Pillai, Kanchamala
Pillai and Govindasamy Pillai. Ex. B1, on which the defendants
place a stout reliance upon, is a deed inter se the sons of
Kumarasamy Pillai. Unless and until Ex. B1 had been preceded by a
document that a partition took place between the three sons of
Parasurama Pillai and in that partition the property had been
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allotted to Kumarasamy Pillai, the defendants’ predecessors cannot
claim exclusive right over the property. In addition, no records have
been produced by the defendants that they had been in possession
and enjoyment of the property exclusively, post Ex. B1. Hence, the
attestation under Ex. A10 and Ex. A11 by persons who were parties
to Ex. B1 becomes a relevant consideration.
73. It is in this context, the defendants seem to rely upon
Ex.B16 of the year 30.09.1903, a document executed by
Govindasamy Pillai, the last son of Parasurama Pillai in favour of
one Nadesa Pillai. In this document, a portion of Survey No.588/3 is
the subject matter of mortgage. However, as to how the defendants
came to the possession of this document has not been explained.
That is to say, the subject matter of mortgage is falling to the family
of Kumarasamy Pillai, whereas the executant of the document is
Govindasamy Pillai. Nadesa Pillai is a stranger to the family.
74. In addition, the legal aspect of boundary recital stated
in a document to be used for the purpose of coming to the
conclusion of title, not only arises with respect to Ex.B16, but would
have to be dealt with respect to the documents under Ex.B17 and
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Ex.B18 also. Ex.B17 and Ex.B18 do not relate to the suit Survey
No.588/3, but to the Survey No.587/3.
75.Fortunately for me, this position too has been settled by
a Division Bench of this Court in V.A.Amiappa Nainar (died) and
others Vs. Anamalai Chettiar (died) and others, 1971 SCC
OnLine Mad 30. A Division Bench consisting of Chief Justice
Veeraswami and Justice Raghavan, as called upon to decide the
issue of admissibility of boundary recitals in a document which is
not inter parties. The plaintiffs, in that case, sought for declaration
and recovery of possession of the suit property, asserting ownership
on the basis of long possession and recognition by the Government
in the year 1880. The defendants questioned the plaintiffs’ title and
the alleged continuous possession and also the relevancy of the
boundary recitals with respect to the suit property, which was not
inter parties. The Division Bench analyzed Sections 11, 13(a), 32(3)
and 32(7) of the Indian Evidence Act, and concluded that recitals as
to boundaries in documents not inter parties are inadmissible in
evidence. The Bench held that the only method by which recitals in
a document not inter parties could be admitted in evidence is by
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examination of the executant of the document in which such
recitals as to boundaries are found.
76.Consequent to this discussion, the Bench approved the
views taken in In re Poddapaneri Narayanappa, 1910 M.W.N.
688 and overruled the contra position laid down in Rangayyan
and another Vs. Innasimuthu Mudali and others, AIR 1956
Mad 226. The Bench positively approved the views of Wadsworth,
J., in Thyagarajan Chetty Vs. Narayana Thevan, AIR 1940 Mad
450, whereunder the learned Judge held that the only method by
which recitals in a document, not inter parties could be admitted in
evidence is by examination of the executant of a document in which
such recitals as to boundaries are found.
77.The executant in Ex.B17 and Ex.B18 are Kaliyaperumal
Chettiar. I am alive to the fact that the suit came to be presented at
least 25 years after the execution of Ex.B17 and Ex.B18. There is a
possibility that the said Kaliyaperumal Chettiar might have gone to
meet his maker. There is no evidence to that effect. Even assuming
he had, this did not prevent the defendants from examining any
person belonging to the said family to substantiate their case.
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Therefore, on the basis of Ex.B1, Ex.B16 to Ex.B18, I cannot
conclude that the position that has been taken with respect to
Survey No.588/3 by the plaintiffs in Ex.A10 to Ex.A13 is
improbable.
78.Since the document not inter parties cannot be relied
upon in evidence, unless and until, the executants are examined, I
would necessarily have to conclude that reliance placed by plaintiffs
on Ex.B15 to Ex.B17 also cannot be entertained. Hence, I am of the
view that the plaintiff have proved their title with respect to Survey
No.588/3.
79.Insofar as first item of the suit property is concerned,
which is Survey No.588/2, the plaintiffs have only produced the
revenue records.
80.Per contra, the defendants rely upon Ex.B2 and Ex.B3,
under which Subburaya Pillai had executed a settlement deed in
favour of his son, Palanisamy and had executed a sale on
29.07.1956. Mere filing of revenue records will not confer any title
on a person. This position has been settled by the Supreme Court in
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Prahlad Pradhan and others Vs. Sonu Kumhar and others,
(2019) 10 SCC 259. Referring to the earlier judgments of that
Court, Justice Indu Malhotra held, revenue records do not create or
extinguish title. It is only meant for fiscal purposes.
81. Turning to the records filed by the defendants, they
have presented a certified copy of the settlement deed in Document
No.13/1956. The original has not been presented for examination
by the Court. The reason for non-filing of the original has also not
been properly explained. Further, the document merely refers to an
earlier document, which is a partition deed, yet again not a title
deed, it will not be a sufficient proof indicating title.
82.The plaintiffs’, on the contrary, have filed Exs.A1 to A6
and A9, to show that for a few years prior to the filing of the suit,
they had been satisfying the revenue demands. While they are not
entitled for a declaration of title, on the basis of these documents,
this Court comes to a conclusion that they were in possession and
enjoyment of the property.
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83.As early as in 1924, the Privy Council in Midnapur
Zamindary Company, Limited Vs. Naresh Narayan Roy, (1924)
20 LW 770, held that a person in possession cannot be disturbed
except by due process of law. Relying on this view taken by the Privy
Council, Justice R.C.Lahoti, speaking for himself, Justice
B.N.Srikrishna and Justice G.P.Mathur in Rame Gowda (dead) by
lrs. Vs. M.Varadappa Naidu (dead) by lrs. (2004) 1 SCC 769,
approved the view of the Full Bench of the Allahabad High Court in
Yar Muhammad and another Vs. Lakshmi Das and others, AIR
1959 All 1 (FB), wherein the Full Bench had declared as follows:-
“Law respects possession even if there is no
title to support it. It will not permit any person
to take the law in his own hands and to
dispossess a person in actual possession
without having recourse to a court. No person
can be allowed to become a judge in his own
cause.”
84. The Court in Rame Gowda’s case, cited supra,
reiterated the tests which may be adopted as a working rule for
determining attributes of “settled possession”, as laid down by the
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S.A.Nos.550 & 551 of 1999Supreme Court in Puran Singh and others Vs. State of Punjab,
(1975) 4 SCC 518. They are as follows:-
(i) that the trespasser must be in actual
physical possession of the property over a
sufficiently long period;
(ii) that the possession must be to the
knowledge (either express or implied) of the
owner or without any attempt at concealment
by the trespasser and which contains an
element of animus possidendi. The nature of
possession of the trespasser would, however,
be a matter to be decided on the facts and
circumstances of each case;
(iii) the process of dispossession of the true
owner by the trespasser must be complete and
final and must be acquiesced in by the true
owner; and
(iv) that one of the usual tests to determine the
quality of settled possession, in the case of
culturable land, would be whether or not the
trespasser, after having taken possession,
had grown any crop. If the crop had been
grown by the trespasser, then even the true
owner, has no right to destroy the crop grown
by the trespasser and take forcible
possession.
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85.The subject matter of Suit Item No.I is Survey
No.588/2, which is an agricultural land. Hence, the test laid down
by the Supreme Court in this case applies in full force. The Trial
Court and the Lower Appellate Court had inadvertently overlooked
the fact that the plaintiffs had not produced any title documents
with respect to Survey No.588/2. Hence, the relief of declaration,
insofar as that portion is concerned, would have to be interfered
with.
86.The revenue records produced point out to the
possession of the plaintiff, at least from Fasli 1388 onwards (Fasli
1388 corresponds to CE 1979). Ex.A9 shows that Subburaya Pillai
had also been benefited with Patta bearing Patta Nos.421 and 355
for S.Nos.226/3 and 226/4, which correspond to the present
S.Nos.588/2 and 588/3. These documents show that the
predecessors of the plaintiffs had been in continuous possession
and enjoyment of the property, at least a decade before filing of the
suit. The documents produced in the name of Palanisamy Pillai
under Ex.B7 relate to Patta Nos.437, 494 and 555. They do not
correspond to the suit properties.
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87.Let me now look at the authorities cited by
Mr.T.R.Rajagopalan.
88.In State of Uttarakhand and Another v. Mandir Sri
Laxman Sidh Maharaj, (2017) 9 SCC 579, the court had come to
the conclusion that, though the plaintiff had pleaded he had
succeeded to the property as “Mahant” and “Manager” of the
Temple, the plaint failed to state whether he claimed title through
his forefathers and, if so, who were they and whether the Temple
had been constructed out of their own resources and when. The
plaintiff had failed to prove any allotment to his forefathers by the
State, and whether the concerned Temple was a public Temple or a
private Temple had also not been pleaded. The family pedigree of the
plaintiff to the property had also not been demonstrated. It was in
those circumstances, the Court came to the conclusion in
paragraph No.19 of the judgment that as material details set forth
had not been pleaded, the suit itself is untenable and ought to have
been rejected at threshold.
89.The Court also came to a conclusion that on the basis of
Gurdwara Sahib Vs. Gram Panchayat Village Sirthala, (2014)
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1 SCC 669 that a court cannot grant a declaration of ownership on
the basis of adverse possession. I should point out here that the
Supreme Court itself had overruled the said proposition in
Ravinder Kaur Grewal and others Vs. Manjit Kaur and others,
(2019) 8 SCC 729. As material pleadings were missing in the case,
the Supreme Court came to the conclusion that the suit is
untenable. Furthermore, that was a case where declaration of title
was sought for a property situated in the midst of a thick forest.
First, as already pointed out, this being an appeal based on a
mofussil pleading, it requires a liberal consideration. Secondly, an
analysis of the documents shows that the plaintiffs’ case is
probable. Finally, the essential pleadings being available on record, I
am not in a position to apply this verdict.
90.In City Municipal Council Bhalki v. Gurappa (Dead)
by legal representatives and Another, (2016) 2 SCC 200, the
Court set forth the principles, which I have already set forth above.
When it is duty of the plaintiff to prove his title independently, for
the defects in the case of the defendant, a decree cannot be passed.
I have pointed out above in the principles of preponderance of
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probabilities that the case of the plaintiffs is more probable than the
one projected by the defendants.
91.In Corporation of the City of Bangalore v.
M.Papaiah and Another, (1989) 3 SCC 612 the Court held that a
court cannot declare title merely on the basis of the revenue
records.
92.I should further remember that I am sitting in Second
Appeal under Section 100 of the Code of Civil Procedure. Even
though I have to look into the evidences and come to a conclusion
whether or not the trial Court and the lower appellate Court have
approached the case in the right manner, I am not entitled to re-
appreciate the evidence and take a totally different conclusion, as
Mr.T.R.Rajagopalan wants me to do.
93.In the result, the questions of law that were framed by
this court are answered as follows:-
Question No.1 – When the plaintiffs have admitted the title of
Parasuram Govindan, the common ancestor and having not proved
allotment of the suit properties in their favour, is the learned
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S.A.Nos.550 & 551 of 1999Subordinate Judge right in granting a Decree when there is no place
of ouster?
The documents filed by the plaintiffs establish
independent enjoyment by their predecessors
Kanchamalai Pillai and Pachai pillai and therefore, this
question of law is answered against the defendants and
in favour of the plaintiffs.
Question No.2 – When there are documents to show the title of the
plaintiffs from 1919, is the learned Subordinate Judge right in
rejecting the claim of the defendants?
Apart from Ex.B1, the defendants have not
produced any other document to show their continuous
possession over the property. This question of law, too,
is answered against the defendants/appellants and in
favour of the plaintiffs.
88.In the light of the above discussions, this Court
concludes as follows:-
(i) The plaintiffs have failed to prove title with
respect to Survey No.588/2 but have proved
their lawful possession;
(ii) The plaintiffs have proved their title and
possession with respect to Survey No.588/3.
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94. The decree for declaration of title with respect to Item
No.I of the suit schedule property is set aside. The relief of
injunction granted is confirmed. The Appeals are dismissed with
respect to suit Item No.II in its entirety. In fine, the Second Appeals
are partly allowed. No costs.
21.05.2026
nl / krk
Index : Yes / No
Neutral Citation : Yes / No
Internet : Yes / No
Speaking Order : Yes / No
To
1.The Subordinate Judge,
The Sub Court,
Cuddalore.
2.The District Munsif,
The District Munsif Court,
Panruti.
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S.A.Nos.550 & 551 of 1999
V.LAKSHMINARAYANAN, J.
nl / krk
S.A.Nos.550 & 551 of 1999
21.05.2026
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