N. Selvaradjalou Chetty Trust ... vs Sarvothaman And Ors.on 1 September, 2006 Madras High Court N. Selvaradjalou Chetty Trust ... vs Sarvothaman And Ors. on 1 September, 2006 Author: S Singharavelu Bench: S Singharavelu JUDGMENT S.R. Singharavelu, J. 1. Plaintiff filed the suit for a declaration that the sale deed executed by the 2nd defendant as power agent of 1st defendant in favour of defendants 3 to 6 are void in law, permanent injunction and for vacant possession of the suit property. 2. The averments made in the plaint are as follows: The 7th defendant is a proforma party. Mrs. Padmini Chandrasekaran purchased the suit property by a registered sale deed dated 26.09.1963 executed by the Advocate Commissioner in pursuance of a court auction sale. The purchaser was in sole, uninterrupted and exclusive possession till her demise on 07.06.1980; she left behind her a Will dated 30.09.1975, under which she appointed Sri Sri R. Krishnamoorthy, Advocate and Dr. H.B.N. Shetty, I,A.S., as Executors for administering the estate in accordance with the terms set out in the Will. The testator vested the property in the plaintiff Trust and also mentioned in the Will about the names of trustees. The Will was sought to be probated in 0.P. No. 117 of 1981, which was converted as T.O.S. No. 28 of 1982 and on 28.10.1995 this Court granted probate in favour of the Executor. The suit property and other properties vested with the plaintiff Trust are continued in plaintiff's possession. 3. Plaintiff came to know that the 1st defendant though a party to the above mentioned sale deed dated 26.09.1963, claimed rights under the Will of Somasundaram Chettiar and attempted to deal with the property. The suit property was sold by the 1st defendant through his Power of Attorney, the 2nd defendant to defendants 3 to 6. Such vendor had no right to sell. Therefore, defendants 3 to 6 may not have any right, but they are attempting to alienate the property. The 1st defendant while making the sale in favour of defendants 3 to 6 had suppressed the proceedings of auction and the earlier sale deed dated 26.09.1963, wherein 1st defendant Sarvothaman and others were parties. The plaintiff Trust alone is the absolute owner of the property. So, the suit is to be decreed for declaration that the sale deeds dated 26.02.1992 executed by 2nd defendant as power agent of 1st defendant in favour of defendants 3 to 6 relating to suit property are void and cannot confer any right upon defendants 3 to 6 and for possession from defendants 1 to 6 and for permanent injunction restraining the defendants from dealing with the property and also from putting up any construction thereon. 4. Defendants 1 and 2 remained set ex parte. 5. Defendants 3 to 6 filed a written statement, in which the following averments were made: The suit property originally belonged to Somasundaram Chettiar by right of purchase under a registered sale deed bearing document No. 323 of 1929. He was in enjoyment of the property during his lifetime and had executed a Will dated 30.05.1962 bequeathing the suit property in favour of the 1st defendant. The said Somasundaram Chettiar died on 14.06.1962 and his last Will dated 30.05.1962 came into operation after being probated before this Court in 0.P. No. 131 of 1992. The 1st defendant took possession and was in enjoyment of the same. Defendants 3 to 6 are bona fide purchasers of value without notice of alleged encumbrance over the suit properties. The sale deed in their favour is dated 24.02.1992. The defendants Indian Kanoon - http://indiankanoon.org/doc/4776/ 1 on 1 September.T. 2006 became in possession and continued to enjoy the same from the date of their purchase. vs Sarvothaman And Ors. to whom the suit property belonged. Selvaradjalou Chetty Trust . It is borne out on record that all the legal heirs and the executor of Will of late Somasundaram have executed the sale deed in favour of Mrs. Prior to the purchase. defendants 3 to 6 and their predecessors-in-title have prescribed title to the suit property and the suit is liable to be dismissed. The said sale will not convey any right.1963 executed by the Advocate Commissioner is incorrect.Padmini Chandrasekaran. Padmini Chandrasekaran. defendants 3 to 6 acquired adverse title is false. Kuppiah Ammal.org/doc/4776/ 2 . 1st defendant was also not in possession.. Srinivasan.77 cents out of an extent of 5. the founder of the plaintiff trust.05. the 1st defendant was in possession and enjoyment of the property. 7. the 1st defendant became entitled to the same and had rightly sold it to defendants 3 to 6. 329 of 1952 against the estate of late Dakshinamurthy Chettiar and Krishnarajulu Chettiar. Jayammal. there is an inherent defect in title claimed by Mrs. In fact. The suit property was not vested with the plaintiff Trust.1962.131 of 1992 and according to the terms of which. who came into possession and continue to enjoy. The court auction sale may not have any warranty of title and thus. Anusuya and Ramanathan Chettiar. There was assessment of urban land tax in respect of suit property only in the name of defendants 3 to 6. Suit property could not have come into the hands of 1st defendant since he himself was a signatory to the above said sale deed in favour of Mrs. The following issues are framed for consideration. Somasundaram Chettiar died as early as on 14. Neither Mrs. Padmini Chandrasekaran nor the plaintiff Trust was at any point of time in possession of suit property. open and uninterrupted possession to the knowledge of the entire world. 323 of 1929 and he was in absolute enjoyment thereof.http://indiankanoon. (1) Whether Padmini Chandrasekaran has got title to the suit property ? (2) Whether the 1st defendant had inherited the property in accordance with law ? (3) Whether the 1st defendant's forefather has got any title to the suit property ? (4) Whether the Trust is entitled to the property in order to have the relief asked for ? (5) Whether the plaintiff is entitled to the relief prayed for ? Indian Kanoon .1963. Advocate. Somasundaram.09. Sarvothaman were all parties to the said sale deed as they were represented by T. To say that the earlier encumbrance certificate did not mention the sale in favour of Padmini Chandrasekaran is also false. Padmini Chandrasekaran.P. Ramanathan Chettiar. Padmini Chandrasekaran. The power of attorney in favour of for execution of the above sale deed by 1st defendant is valid. Defendants 3 to 6 are not bona fide purchasers without notice. Padmini Chandrasekaran in C. To say that.S. 6. That sale deed was in pursuance of a sale conducted for recovery of amount under a money decree in favour of Mrs. executed a Will on 30. defendants 3 to 6 could not secure possession of suit property. Padmini Chandrasekaran became the owner of property by virtue of a sale deed dated 26. The allegation that Mrs. in the hands of Somasundaram Chettiar.. Apart from putting up compound wall. Neither the 1st defendant nor Somasundaram Chettiar was ever a party to the sale deed dated 26. The transfer of patta in favour of defendants 3 to 6 is fraudulent and was later cancelled. On the other hand. who in turn bequeathed the property to the plaintiff Trust.15 acres. The Reply statement filed by plaintiff contained the following averments: The plaintiff purchased the suit property to an extent of 0.09. Their encumbrance certificate would indicate the earlier sale in favour of Mrs. the property belonged to Somasundaram Chattiar as he had purchased it under a registered sale deed bearing document No. wife of late Somasundaram Chettiar.N.06. They were in continuous. The same is for more than statutory period and as such.1962 and the same was probated in 0. The suit property never belonged to said Dakshinamurthy or Krishnarajulu and was never a part of their estate. his parents.P-13) which arose against the decree passed in C. That compromise decree was upheld and Padmini Chandrasekaran is Will was also probated. It is in the above said proceedings the genealogy of the family and other dates and events connected to this family were at length discussed and the following are some of such factors.03. The earlier history of the case is relevant in understanding the facts before us.S.A. The O.No. and (ii) from the judgment dated 20.P-13) was to the effect that Padmini was entitled to 'A' schedule and Somasundaram was entitled to 'B' schedule (excluding the property of Selvarajalou) as found in the compromise decree dated 20. 10.S.. 329 of 1952).03.S.04.12.2002 of a Division Bench of this Court in O. No. Such history can be gathered from (i) the judgment dated 11.6 of 1968.S. to set aside a compromise decree dated 20. 6 of 1968. That suit was filed by one Anusuya claiming partition (it was a parallel proceeding to C.S.S.S.A. No. vs Sarvothaman And Ors.1970 in O. No.2002 in O.S.. 299 of 1996 (Ex. No. 329 of 1952. No.| | | | | | | | Rathinavel Nandagopal Vijayaraghavam Dakshinamurthy | (died issueless) died in 1951 x | Kuppammal died Durairaj in 1958 -----------------------------------------------------------------.P-6) respectively preferred by Padmini Chandrasekaran and Somasundaram. 2006 8. Selvaradjalou Chetty Trust . No.04.O.49 of 1960 and 40 of 1969 (Ex. who are espectively plaintiff and one of the defendants in C.| | | | | | | | Kasthurithilagam Selvarajalou Krishnarajulu Jayalakshmi | | Padmini x Anusuya x (wife) Somasundram (Husband) | | ------------------------------|| || || Anusuya 2nd daughter (Ramanathan) | | Sarvothaman Indian Kanoon . No.N.S. 149 of 1980 in dismissing the claim of Vinod Babu. 28 of 1982 filed by one Vinod Babu claiming under Sarvothaman and Sathya. No. The end result of the judgment dated 20. Chinnathambi | | ------------------------------------------------------------------. 299 of 1995 (Ex. 299 of 1996 confirmed the finding of O.A. No.S.S.1963 in O.http://indiankanoon. 149 of 1980 and T. on 1 September.1970 arrived at in O.org/doc/4776/ 3 . 9.A. Nandagopal had two sons and two daughters. the lst defendant. Selvarajalou at the time of his death was a member of a Hindu joint family consisting of himself.org/doc/4776/ 4 . as exporters. was the natural father of Sarvothaman. Two years later. Five years after. who started his business in the name of his wife at Madras. the daughter of Somasundaram was given in marriage to her maternal uncle Krishnarajulu. a native of Ceylon. Padmini and Ramanathan were respectively given 21. There was a family arrangement in 1918. on 1 September. At that time. Later. Dakshinamoorthy' s widow is Kuppammal and he died in 1951. In the year 1918. Padmini reached the age of majority. Dakshinamoorthy was able to obtain a succession certificate on 21. namely. Selvarajalou was undoubtedly in exclusive control of the various branches of his office. he started a business in his own name. His daughter and adopted son are respectively Anusuya and Sarvothaman. Somasundaram. Somasundaram's second daughter was married to Ramanathan. Dakshinamoorthy and Krishnarajulu died issuless.1956. There were amounts due to Selvarajalou from the Imperial Bank of India as well as from the Indochina Bank at Pondicherry. He was proficient in French and English. Dakshinamoorthy was struck with paralysis in the year 1914 and till the end.08. Rathnavelu died in the year 1907. He had insured his life for the sum of Rs.12. Krishnarajulu had no business and he died in the year 1943. Out of 100 shares therein. Due to the First World War. The business was prosperous.03. By a further document dated 26. the wife of Dakshinamoorthy was his cousin.http://indiankanoon. It did not prosper and was closed in 1944. Rathnavelu's son was Durairaj. viz. his younger brother Krishnarajulu and paternal uncle Dakshinamoorthy Chetty. the business sustained heavy loss and was stopped in the year 1915. who married the second daughter of Somasundaram. Therefore. a near relative of Kuppammal. Rathnavelu. the tried and trusted accountant of the family joined that business as Manager in the Madras Office in the year 1929. one lakh in various insurance companies. vs Sarvothaman And Ors. 14. 20 and 4 shares and one Ramachandran was given the remaining 4 shares. which however did not prevent him from doing business.N. he was crippled. Dakshinamoorthy converted the business as a partnership concern.1948. 12. he took himself 51 shares. his three brothers and his son Durairaj started a business under the name of Rathnavelu Brotthers. Anusuya. The Partnership Agreement is dated 27. One Chinnathambi had four sons. Somasundaram was the legatee. 2006 (D 1) 11. Sam Joseph. Selvaradjalou Chetty Trust .. There were other amounts due to the deceased from the post office.06. 13. public and private institutions. who was about 11 years old by then. Dakshinamoorthy and Krishnarajulu took over the business claiming that they had succeeded to the business carried on by the deceased according to Hindu Law by survivorship. Krishnarajulu and Jayalakshmi and Kasthuri Thilagam. Ramanathan.. and was taken custody of himself and his wife Kuppammal.1951. the position of Somasundaram and his family was secured. it was agreed that the partnership was not to be dissolved by the death of any partner. Kuppammal died in 1958 executing a Will dated 16. Even before the dead body of Dakshminamoorthy was removed. first at Pondicherry and later at other places. Parties contemplated to live as Hindu Undivided Family. After the death of Selvarajalou. stevedores etc. Sam Joseph was terminated and he also went back to Colombo.chandlers. Mediations took place.. Vijayarangam and Dakshinamoorthy. Jayalakshmi's husband is Somasundaram. The existence of the minor daughter Padmini was suppressed in the application for the Succession Certificate. was taken in employment as the Accountant of the firm. Four years after his father's death. Somasundaram agreed to treat Padmini. which venture was a failure. In the said Will. Dakshinamoorthy died on 26.1938 within five days of the death of Selvarajalou from the French authorities. Selvarajalou's daughter is Padmini Chandrasekaran. However. Durairaj was a Dubash of Ralli Brothers till the date of his death in the year 1925. Sam Joseph.10. Nandagopal. This omission was deliberate. ship. Kuppammal. Selvarajalou was prominent in political activities at Pondicherry and unfortunately he was shot dead in the year 1938. Dakshinamoorthy had considerable affection for Padmini.1951. the plaintiff as owner provided he was Indian Kanoon . Vijayarangan embarked upon a separate business. Selvarajalou. Selvarajalou was accomplished by all the members of the family in the matter of dealing with business people. Selvarajalou's sister Jayalakshmi was married to Somaasundaram. disputes started between Padmini on one hand and Somasundaram and Kuppammal on other hand. His three brothers predeceased him. a division between Padmini and Somasunclaram.S. 329 of 1952 regarding her absolute right in her father's business. 6 of 1968 in the District Court in. This compromise decree was sought to be set aside in C. which stood in the name of Selvarajaloa. in which there was a sale notice. No. the Agent in India of Messagerie Maritimes. There was a judgment passed on 11.12. her father and Padmini were parties besides Anusuya's mother Jayalakshmi and the younger brother of Padmini's father and also one Ramanathan.2002 was pronounced by the Division Bench holding that the compromise decree is enforceable. one of the defendants respectively in O.As. the decree passed in favour of C. the loyal servant of Selvarajalou was also not satisfied with the way in which Padmini was treated by Somasundaram.M. which in fact on one hand Padmini was given 'A' schedule property mentioned therein. 16. Padmini was permitted to carry on the business of her father. and Somasundaram. Thus. The decree was challenged in the aforesaid appeal unsuccessfully. No. there was a compromise decree. 19. confirming the decree with some modification. Madras and the claim under the 2nd mortgage dated the 1^stday of Oct. The properties are being offered for sale in pursuance of the order of the Hon'ble the High Court on C. No.http://indiankanoon.1963 in both O. During the months of July and August 1951. Selvaradjalou Chetty Trust .A. (i) that the business done in the name of her father was during his lifetime his own and that she would be entitled to do the same as his legal heir and (ii) that her father had insured his life for a considerable sum of money and that she would be entitled to recover those moneys which had been collected by Dakshinamoorthy and Krishnarajulu. wherein the purpose of the sale was mentioned as follows in para 7.03. which was a sale of the properties. Indian Kanoon . in which Padmini obtained a declaration that the business carried on in the name of her father Selvarajalou.A.S.N. wherein judgment dated 20. No. Pondicherry. took interest in her and helped her.. 1960 in favour of Mrs. That went against Vinod Babu.. 299 of 1996. 17. the other 'B' schedule properties were allotted to Somasundaram while 'A' schedule property in the compromise was allotted to Padmini.S. as per the result of the judgment dated 11. 18. 6 of 1968.12. Due to Somasundaram's intervention. There was a decree in the said suit. which was still then carried on by Dakshinamoorthy. which was the subject matter of the suit and the amounts in certain insurance policies belonged to her absolutely and that Dakshinamoorthy or his widow Kuppammal as also her step brother Sarvothaman had no rights in those assets.org/doc/4776/ 5 . 329 of 1952. High Court.S. He also induced Padmini to insist upon her rights as the sole proprietrix of Selvarajalou Chetty and Company. 60 of 1959 dated the 4^thday of May 1962 with a view to satisfy the claim under the Security Bond dated the 24^thday of August 1960 in CS. 4210 of 1962 in O. Sarvothaman and other defendants as also the plaintiff Anusuya entered into an Agreement for compromise. Somasundaram tried to discredit Salzani by complaining against him. the plaintiff as well as Somasundaram. 149 of 1980 filed by one Vinod Babu. Salzani.49 of 1960 and 60 of 1959. vs Sarvothaman And Ors. who filed an appeal in O. 15.04.S.S. he conveyed information to Padmini about two matters. No.A. there was an application filed in C.S. No. who was the natural father of Sarvothaman.A. in essence. Sam Joseph.. 329 of 1952. 49 of 1960 and 60 of 1959.S.S. No. Even in O. seeking partition of what she alleged to be family properties. was given 'B' schedule property excepting that items found in the name of Selvarajalou. Then. some arrangement was entered into between Padmini in one hand and Somasundaram and Kuppammal on other hand. 2006 permitted to perform the funeral ceremonies. No. as sole proprietrix.P.S. No.P. That suit ended in a compromise on 29.1970. which in fact is. The prayer in that suit was that Padmini was the absolute owner of the business of her father Selvarajalou Chetty and other reliefs.M. Somasundaram grave some trouble. In that suit. jewellery and insurance policies of her father was upheld. 4210 of 1962.. There was an appeal preferred by both Padmini. Wow it is in between these events. on 1 September. No. Parallel to this litigation. Mr. Jameela Begum. daughter of somasundaram in 1968 when she filed O. Padmini filed the suit in 1952 in C.1963 in O. No. on other hand. Sam Joseph got separated from Padmini. Excluding those properties in 'B' schedule. In December 1951. the jewellery. a suit was instituted by Anusuya. Srinivasan was also directed to settle the debts of testator due to A.06. (3) the executor Mr. According to the said Will of Somasundaram. Jameela Begum.1963. 22.1962. (4) the executor was also directed to discharge the debt of testator of Rs.T.000/-was paid as charges to the security bond and eventually the suit property was brought to auction in which it was purchased by Padmini Chandrasekaran and the sale was confirmed by this Court by an order dated 06. Permission was also obtained from M/s. upon payment of probate duty of the said Will. the executor was also given power to sell any of the property of the testator for discharging the debts and meeting the above expenses. 17. T. 500/. No. 21. and (6) as the testator was the Managing Partner in M/s. 4210 of 1962 in O. 60. son of Appiah Chetty and Velayudha Pathar. Selvaradjalou Chetty Trust . in such C.S.M. under the Will. the executor in the Will of Somasundaram was directed to administer the estate of Kuppammal. vs Sarvothaman And Ors.05. 25. this Court appointed an Advocate Commissioner Sri S. No. it was mentioned in the Will that 1/10^thshare will go to testator's cousin brother Munusamy Chetty and that the rest will be taken by Sarvothaman. son of Appiah Chetty and also Velayudha Pathar. 329 of 1952. That was done because the estate of Somasundaram Chettiar including suit property in question were shown in the security bond that was furnished to this Court earlier. on 1 September. one Mr. A sum of Rs. testamentary and medical expenses.1956 of Kuppammal.per month to Jayalakshmi. (5) that the said Ramanathan was also therefor bequeathed a sum of Rs. the adopted son of Somasundaram subject to the latter's payment of Rs. Srinivasan was appointed as Executor. He was also directed to discharge the decree debt of Padmini Chandrasekaranin C.000/. Mahendran.000/-. N. 329 of 1952.. Thus. No.org/doc/4776/ 6 .P.05. Srinivasan was obliged to pay all the debts of Somasundaram Chettiar and to discharge the same even by selling any of his property in order to meet the said expenses towards repayment of debt.000/.09.on condition that he repays entire debt and free his properties. Ramanathan was bequeathed to a sum of Rs.on condition that he shall repay the debt and free the liabilities upon the property of testator Somasundaram. No.4210 of 1962. the daughter of the testator. according to Somasundaram's Will.03. the widow and Anusuya. the second mortgagee therein and that she has released the suit property in favour of the Advocate Commissioner. wherein the testator was a legatee/executor. Somasundaram Chettiar died on 14.Selvarajalou Chetty and Company and under the partnership deed as he was entitled to 21% of the share and also entitled to Kuppammal's share with capital contribution of Rs.M.http://indiankanoon.1962 with a Will executed by him on 30..08. the executor T. 2006 20. 65. Somasundaram had directed the executor to clear the debt of Ramanathan and to administer the estate of Kuppammal and also directed Sarvothaman to pay certain sums to Jayalakshmi and Anusuya upon enjoying the shares due to the testator as Managing Partner in M/s.1963 and a registered sale deed was also executed in favour of Padmini Chandrasekaran on 25. Mention was also made in the Will of Somasundaram that there was a borrowal made by him from Ramanathan to an extent of 60. No. while Somasundaram Chettiar was very much alive.N.T. (1) to pay all the debts of Somasundaram Chettiar and to defray the medical and testamentary expenses. 65.S. That debt included borrowals of Somasundaram from A.S. It is in the meantime.000/. which was preferred by Somasundaram Chettiar against the decree in CS.due to Ramanathan which was borrowed to pay of the decree debt due to Padmini Chandrasekaran by testator in C. N. there was an order passed by this Court on 04. Thus.000/. Ramachandra Iyer to bring the properties offered as security to sale by public auction. 23. 60 of 1959.P.S. T. As the above said Will was not in dispute. it is an admitted portion found in the Will that there shall be a discharge of Indian Kanoon .Manoharan. Thus.1962 in C. 329 of 1952.and so. after the death of the testator.T. (2) to pay the probate duty of the Will dated 16. Selvarajalou Chetty and Company.A. H. subsequent to the death of Somasundaram Chettiar on 14. Dr. and that property was not part of the estate of the above in the hands of Somasundaram. the defendants in that suit. Padmini Chandrasekaran. This was followed in a later case Ramas Wami Iyer v. Padmini executed a Will dated 30. the question arises as to whether as on the date of death of Somasundaram Chettiar on 14. These defendants agitated that the suit property never belonged to Dakshinamoorthy Chettiar or Krishnarajulu "Chettiar. It is under such circumstances.1975. was said to be in possession of the said property till her demise on 07. the auction-purchaser can effectively sell the property purchased even in the absence of a confirmation of the auction sale by the Court and therefore the judgment debtor cannot be said to have a saleable interest in the same property in the Indian Kanoon .06. in a case law Jagannatha Rao v. 329 of 1952 that Padmini Chandrasekaran's dues from Somasundaram Chettiar have to be discharged with a charge on the estate of Kuppammal and Dakshinamoorthy in the hands of Somasundaram Chettiar. vs Sarvothaman And Ors.. which are under dispute.1962. Subsequently.S. on certain allegations and suspicion about its correctness. The said sale deeds were shown to have been executed by 1st defendant through his power agent 2nd defendant. 26.N. Mr.1980.N. In this connection.. N. appointing Mr. No. and the law does not prescribe any special period for an application for an order of confirmation 29. After the expiry of the period for an application to set aside an auction sale. No. 1st defendant still remains ex parte. the ex parte order already passed against defendants 3 to 6 was set aside. Mr. Defendants 3 to 6 also claimed adverse possession. who had become the absolute owner in pursuance of the court auction sale in respect of suit property. R. whether the legatee Sarvothaman. R.A.S. had no authority to represent Somasundaram Chettiar in making a sale deed. In the absence of an order setting aside the sale the Court is bound to confirm it. 25. 28. Senior Counsel resigned and Mr. Mrs.http://indiankanoon. In the meantime. Selvaradjalou Chetty Trust . Ramachandran died. On the strength of the above said illegal sale deeds. defendants 3 to 6 encroached upon the property and constructed a compound wall around the suit property. formal document of title. Senior Counsel and Mr.B. Surya Rao reported in AIR 1936 Przivy Council 206.the following was observed: It is obvious that. The further contention is that the suit property could not have been brought for sale and could not have transferred title in favour of Padmini Chandrasekaran by the Advocate Commissioner. according to defendants 3 to 6.06. in which Padmini Chandrasekaran purchased. who were parties in C. 24. Krishnamurthy as Executors.06. and a certificate of sale granted by the Court would in such a case be a. had illegally sold the property by way of four sale deeds to defendants 3 to 6.org/doc/4776/ 7 . The signature of 1st defendant in the power of attorney has been sent for Forensic Science Laboratory. Anusuya and Ramanathan Chettiar. she had founded a Trust in the name of M/s. there was no person who could question the title of the auction-purchaser. the property was brought to auction. Komalavalli Ammal in AIR 1941 MADRAS 277 and the following observation was made. Krishnamoorthy.S. Mr.B. there was a decree in C. Shetty. Ragavachari. N. It is under such circumstances. Ramachandran as Trustees. 329 of 1952. whether the mere order of court auction sale in favour of the latter would transfer title or not.N. No. who.S.Selvarajalou Chetty Trust and appointed herself to be the Managing Trustee and after her life time.1962 and before ever the confirmation of sale in favour of Padmini Chandrasekaran. H.09. 27.N. 329 of 1952. In other words. R.C.09. As seen earlier. Kuppammal. Now. the 1st defendant even though being a party to the sale deed dated 25. after the expiry of the statutory period for setting aside the sale. In the meantime. as mentioned supra. Krishnamoorthy. Shetty and Mr. on 1 September. I.1963. Madras. the first defendant would get an overwhelming right in suit properties to dispose of the same through the impugned sale deeds in favour of defendants 3 to 6.. 2006 the decree debt obtained by Padmini Chandrasekaran against Somasundaram in C. Selvaradjalou Chetty Trust . Vir Bhan AIR 1942 Lah 102 (FB) was that though a sale became absolute only when an order confirming the sale was passed.N.http://indiankanoon. and that in the interval between the date of the sale and its confirmation the auction purchaser acquired substantial interest in the property. Sat Narain (3) Mani Lal v. The Code of Civil Procedure of 1908 makes ample provision for the protection of the interest of the judgment-debtor who feels that the decree ought not to have been passed against him. (1) S. The case law Janak Raj v. N.It must be held that the appellant-auction . Reversing the decision of the Punjab High Court their Lordships of the Supreme Court held that notwithstanding the reversal of the decree. Seshi Bhusan AIR 1920 CAL. unless a stranger auction 'purchaser is protected against the vicissitudes of the fortunes of the suit. After reversal of the decree the auction purchaser made an application for confirmation of the sale. 2006 absence of a question of subordinate interests carved out of the property being owned by different persons. Chokalingam v. Gurdial Singh the Supreme Court had to consider the case of an auction purchaser in execution of a decree. Abdul Haq.org/doc/4776/ 8 .99 and observed as follows: .. In that case a house was sold in execution of an ex parte money decree. by reason of the provisions of Section 65 of the Civil P. the property shall be deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute In Janak Raj v. on 1 September. The policy of the Legislature seems to be that. Gurdial Singh also dealt with the above situation.. by quoting the following case laws. 30. Suryakant referring the above case in and subsequent case law of Ramesh Himmatlal Shah v. Thereafter in appeal the said decree was reversed. Harsukh Jadhavi Joshi made the following observation: Section 65 of the Civil Procedure Code provides as follows: Where immovable property is sold in execution of a decree and such sale has become absolute. the property was deemed to have vested in the purchaser. The decision Pradyut v.C.. Debdas Lala (6) Ariatullah v. Ganga Prasad (4)Adbul Rahim v.the decision of a Full Bench of the Lahore High Court in Sham Singh v. The Full Bench further held that the right of the auction purchaser could not be defeated by a transfer made by the judgment debtor between the date of the sale and the confirmation of the Indian Kanoon . sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike.. purchaser was entitled to a confirmation of the sale. from the time when it was sold. notwithstanding the fact that after the holding of the sale the decree had been set aside. 31.S.. which decree subsequent to the auction has been reversed in appeal. Krishna (2) Lalji Sah v. AIR 1936 LAH 191 (5) Baburam Lal v. the auction sale must be confirmed and that the title of the auction purchaser related back to the date of the sale and not to the date of its confirmation. and not from the time when the sale became absolute.. vs Sarvothaman And Ors. if sales were allowed to be impugned merely because the decree was ultimately set aside or modified. the Madras High Court pointed out that it was not possible to understand how an attachment could be revived against the judgment-debtor only. any subsequent sale made by Sarvothaman after the death of Somasundaram Chettiar under the guise that Sarvothaman became a legatee under the Will.1962 and the limitation period is 30 days ending on 03. vs Sarvothaman And Ors.1962 and by that time.1962 even before his Will takes effect. 1st defendant was a party to such sale deed..1962.09. where a Division Bench of the Madras High Court held that.03. Somasundaram was divested of suit property on 04.P.http://indiankanoon. Since the confirmation of the sale dated 06. whether he has knowledge of the attachment or not. 1st defendant himself may not have title in suit property.The Division Bench observed at p. To say that 1st defendant was not even a party to the Court auction sale and so Order 21 Rule 81 C.1963. makes no difference if the attachment was subsequently restored by a superior court. The Division Bench further held that the appellate order restoring attachment would relate back to the date when the attachment was first levied and would render invalid any alienation in the interim period. reliance was made in Annapurna Patrani v. confirmation of sale was made on 06.07.Ramachandra Iyer. Although in this case. Under Section 114(e) of the Indian Evidence Act.S.05. besides claiming title by purchase can also claim adverse possession.03.1963. it dates back to the sale order dated 04. 2006 sale.. uninterrupted. may date back to 04. there is no application to set aside the sale ordered on 04. 32. may not be invoked in unacceptable because. for the very purpose of an attachment order is to prevent alienations by the judgment debtors in favour of any person. Srinivasan (ii) S.1963. As described in the sale certificate issued by court of law. where in execution of a decree property was attached but the petition for execution was dismissed for default and on appeal the order of dismissal for default was set aside the effect of the appellate order was to restore the order attaching property and the trial Court would have to proceed with the execution application from the stage at which it had interrupted it by dismissing it for default. before death of Somasundaram on 14. Advocate by Power of Attorney dated and that as legatee under Will of Somasundaram Chettiar. The Division Bench referred to an old decision of the Calcutta High Court in Patringa Koer v.C.1963 S.1963. It Indian Kanoon . and by abovementioned dating back principle. 1st defendant was represented besides others by Advocate who was holding Deed Power of Attorney dated 25. may not clothe the transferee (defendants 3 to 6) any valid title. For this position. Will cannot take effect to attribute title to 1st defendant. It was further held in that case that the fact that between the date of attachment and the date of confirmation of the sale. The next argument of the learned senior counsel for defendants 3 to 6 is that defendants 3 to 6 have acquired title to the suit property by their long.S.05. Sarvothaman (iii) N.05. 33. then it must apply to everybody. Ramachandra Iyer.1962. 34. Dissenting from this view taken in (1911) 14 Cal LJ 476. It was further argued that the sale deed was not signed by Sarvothaman. Moreover. It has further submitted that defendants.06. Advocate himself for Jayalakshmi Animal @ Jayammal under P/A dated 25. the actual order of sale in favour of Padmini. in this connection. as he was also represented by S. but allowing the appeal would not have the effect of reviving the attachment as against a third party. all acts of judicial and official have to be presumed as regularly performed. continuous possession.742 of AIR: If there is an attachment. Advocate and Commissioner for and on behalf of (i) Sri T. which has not been done. his prospective chance of inheriting by such Testament. It is for the other side to rebut it and prove it otherwise. to be raised and it was thereafter that the private alienation was made. goes away since the corpus is divested of testator himself before ever the Will gets effectuated.T. This is so because.05. True it is that the sale deed was signed by S. Madhabanand Ram (1911) 14 Cal LJ 476 where it was held that there would be a revival of the attachment automatically so far as the decree holder and the judgment debtor were concerned. it is made clear that the confirmation date bade to the order of sale.1962 and therefore..N.org/doc/4776/ 9 . 35.07. From the above discussion.E Ramachandra Iyer. on 1 September. Somasundaram was very much alive.06. Ramanathan Chettiar under P/A dated 06. Selvaradjalou Chetty Trust . Lakshmana Kara . a Court had declared the attachment void or ordered it. be accepted. 36. The above decision may not come to the aid of the defendant in this case. since a person. it is void ab initio inasmuch as the vendor to these sale deeds Indian Kanoon . Further the land is only a vacant one and there was no perceivable act of enjoyment by claiming ownership thereon which is sine qua non for claiming adverse possession. whether movable or immovable. clear and supported by unequivocal ownership regarding duration. So far as the tangible aspect of the property.S. It is the very essence of adverse possession that it must be marked by clear and unequivocal acts of ownership and must be sufficiently definite as regards duration. Their vendor had no title as found hereinbefore and so sale deed in favour of defendants 3 to 6 are void. according to the plaintiff. which may be either movable or immovables.. they have not established it. or rights of trademark.. D. as held in Naran Behera v. continuity and extent.. or incorporeal. as the goodwill of a business. who is in possession of the property. in its widest scope.270 that the alternative plea of adverse possession set up by the plaintiff cannot. or right of redemption. 2006 was argued that one can claim title for himself and alternatively the same can claim adverse possession. which is in the actual occupation of the trespasser. reliance was placed upon N. Spance v. which does not mean that alternative plea is not permissible. who claims adverse possession. The presumption of adverse possession extends only to the property.270. It may be classified as: (i) physical or corporeal. then it should have filed a declaratory suit and it need not try to set aside the sale deeds in favour of defendants 3 to 6. in view of the hostile possession established.. on 1 September. (b) inanimate objects. The contention of the learned Counsel for the respondents. or patent rights. in which the following observation was made: As submitted by the learned Counsel for the respondents. it is for the person.1992. 39. unless it is accompanied by adverse animus as held in Venkatachalaiah v. that too to the knowledge of the first defendant. . This may consist of (a) animal objects. it was mentioned in the same book at page 13 as follows: The law recognises property only so far as it is capable of standing in relation to the human will. therefore. The law of adverse possession. is not acceptable. There is no satisfactory evidence for the continuity and long duration for which possession should be in order to make out a case of adverse possession.N. vs Sarvothaman And Ors. the possession should be tangible.02.org/doc/4776/ 10 . that the possession must be without title against a person with original title and then only adverse possession would arise. or artificial. Therefore although defendants had a right to claim adverse possession.S. since adverse animus has not been established in that case. In case it it has got a title. or material. as pointed out supra. or tangible which is capable of being perceived by external organs of sense. applies to all kinds of tangible property. It was so found at page 142 of Mr. since his claiming title by himself may not disentitle him to later on plead adverse possession. Assuming that defendants 3 to 6 may as well claim adverse possession even after their unsuccessful claim over the sale deeds dated 26. Nanjundaiah AIR 1992 Kar. Selvaradjalou Chetty Trust . is entitled to take alternative plea. In this connection. continuity and extent.. M Krishnaswami's Law of Adverse Possession 13th Edition and that is as follows. (ii) Non-Physical. to prove that his possession had became adverse to the real owner. It is also held in the above decision AIR 1992 Kar. 38. but is recognised as property in the eye of the law. Wow the question arises as to whether Plaintiff Trust has got any title to the property. which cannot be perceived by the senses. and all rights except personal rights.http://indiankanoon. Mohan Jethi and mere possession over a statutory period is not sufficient to succeed in the plea of adverse possession. or intangible. Kanagara and Anr. 37. namely. 44.org/doc/4776/ 11 . 28. 31 When cancellation may be ordered". on such enquiries the plaintiff became known to the existing sale deeds in favour of defendants 3 to 6 sought: to be now set aside.. be a source of potential mischief. (2) If the instrument has been registered under the Indian Registration Act. The principle is that such document though not necessary to be set aside may. then. they can file this suit to set aside the sale deed as those sale deeds sought to be set aside create mischief. which corresponds to new Article 59. on 1 September. 122. if the suit is construed as that filed under Section 31 of Specific Relief Act. then Article 142 of Limitation Act may apply. vs Sarvothaman And Ors. Therefore. then according to Section 31 of Specific Relief Act. and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation. Section 31 of the Specific Act reads as follows: Section. 43. by removing a potential danger. if the plaintiff is found not entitled to suit property. if left outstanding. in order to ward off the potential danger due to the existence of the sale deeds sought to be set aside. Therefore. son of Natesan Chettiar. In this connection. if left outstanding may cause him serious injury. in its discretion. wherein it is provided that limitation is three years from the time when the facts entitling the plantiff to have a decree cancelled or set aside or the contract rescinded first become known to him. but it does not envisage an adjudication between competing titles. 40. and the Court may. the Principel amount shall be taken by his children in equal shares. but the probate proceedings upon the Will of Padmini Chandrasekaran was finally disposed of on 28. 2006 have no title. coming to the title of plaintiff Trust. The suit was filed on 22. the limitation provision applicable is Article 91 of old Limitation Act. the Fixed Deposit. Krishnaswamy AIR 1960 MADRAS 1. Para 19 of the will reads thus: Indian Kanoon .10. I want my Executor to sell the said property viz. land in Survey No. Suppose plaintiff has no basis to file a suit for declaration of title.http://indiankanoon.(1) Any person against whom a written instrument is void or voidable. on the side of the defendants. Koli street. learned senior counsel for defendants 3 to 6 pointed out para 10 of the Will of Padmini and it reads as follows: I Sequeath to Sri Vinayagamur. 170/2.75 cents out of 5 Acres 15 cemts/As he has got children. Now. reliance was made in Muppudathi v. 75 cents and deposit the sale proceeds into a long term Fixed Deposit and to pay interest alone to Vinayagamurthy and after his life time.1998.1995 and also thereafter. 41. and who has reasonable apprehension that such instrument.. The Principle and Scope of the provision mentioned is as follows: The relief given under this Section is founded upon the administration of protective justice for fear (quia timer). o. so adjudge it and order it to be delivered up and cancelled. 42.10. 1908 (16 of 1908).07. If that be so. may sue to have it adjudged void or voidable. Rouapuram..1995 as so mentioned in para 17 of the plaint. it is well within the time. Madras. The plaint is so drafted that the cause of action arose upon various dates including on the date of probate of the Will of Padmini Chandrasekaran. As and when the plaintiff is to file a declaratory suit. the suit filed herein may be construed as one filed under new Section 31 of Specific Relief Act. residing at No.N. P.V. Selvaradjalou Chetty Trust . wherein it was held in para 15 therein that the remedy under Section 39 is to remove a cloud upon the title. the Court shall send a copy of its decree to the officer in whose office the instrument has been so registered. Selvaradjalou Chetty Trust . 47. 1st defendant may not get any right under the Will of Somasundaram (1st defendant also remained ex parte). This is so because the Will has given clear terms in respect of the disposition of the suit property as well as that of trust properties. (8) But Padmini.http://indiankanoon. In unambiguous terms. Padmini Chandrasekaran had Purchasd it.. (2) in a court auction sale. Therefore. He is thus executor-cum-trustee. confirmation dating back to sale order Somasundaram was divested of that property before his death.B. I appoint Thiru R. para 10 of the Will deals with the suit property. against debt due from Somasundaram Chettiar.org/doc/4776/ 12 . 1st defendant has no capacity to sell suit item to defendants 3 to 6. vs Sarvothaman And Ors.B.. the principal amount would be taken by the children in equal shares. and (10) among the executors. (6) Title of Somasundaram in suit item had passed on to Padmini Chandrasekaran under the court auction sale (supra). had directed the executore to sell the suit property make it as a fixed deposit tender the interest to Vinayagamurthy and directed to give the principal amount to the children of Vinayagamurthy. by principle of law. even during his lifetime. Shetty is representing the plaintiff trust. Estate Duty and to incur other expenses. (7) Padmini had executed a will as well as a Trust dead. so as to include even the sale proceeds of the suit property is incorrect. 46. according to which.Krishnamurthy and Thiru H. Now. Indian Kanoon . So the plaintiff has no title to the suit property. the executor is to sell the suit land. converting the sale proceeds into fixed deposit and dispose the sale proceeds to the family of Vinayagamurthy as mentioned in the Will. para 19 of the Will only be construed as a disposition of the trust properties and what is contained in para 10 of the Will is regarding the disposition of the suit property. (3) even though the sale order was prior to the death and the sale confirmation was later to the death of Somasundaram. He is also the executor burdened with disposition of the suit property. The trustees have discretion to sell such movable properties as may not be necessary and add the sale proceeds to from part of the Trust. Shetty as Executors to apply for probate to pay any tax arrears. Inasmuch as the suit property is not found in the list of properties endowed to the trust. 2006 This will shall come into force after my life time. suit property was not vested with the trust. (4) by virtue of divestment of Somasundaram of suit item. 45. (9) The executor are thus obliged to act according to the above said direction of the testatrix in disposing the suit property by selling it. in her will. The attempt made by the learned Counsel for the plaintiff that the last sentence in para 19 is an omnibus clause to include all sale proceeds into the Trust. (5) thus. deposit the sale proceeds into a long term fixed deposit and to pay interest alone to Vinayaganuirthy and after his lifetime.N. the position is thus: (1) Suit property originally belonged to Somasundaram Chettiar. The executors shall take charge of the movables as well as immovables and hand them over to the trustees.N. on 1 September. As against such explicit terms of the last Will of the testatrix. Mr. the property cannot go to the plaintiff trust. the suit property may not vest with the plaintiff trust.N. The trust properties were separately identified in the Will unconnected with the suit property. H. namely. under Indian Kanoon .http://indiankanoon. So it is not as if defendants are deprived of any opportunity or that prejudice is caused to them nor is there any violation of principles of natural justice. This is so because.B. plaint was signed by Director of Company. as both sides were given opportunity and heard on disputed area. Padmini Chandrasekaran. it is unnecessary to make him to go in for another suit. on 1 September. The disputed area is the title of testatrix. In a similar circumstance.B. Naresh Kumar and Ors. Pvt.B. What happened thereafter is Padmini executed a Deed of Trust and another Will. Shetty claiming as executor instead of Trustee. Shetty filed the suit representing the trust only. If the law permits. the Court held that such procedural defects not going to the root of matter should not be permitted to defeat a just cause. vs Sarvothaman And Ors. after a lapse of 3 years. especially when the sale in favour of defendants 3 to 6 is liable to be set aside on the ground that their vendor. What. he. if found entitled to suit property by stepping into shoes of the testatrix. 49. as per directions of testatrix. the executor himself is very aged (more than 80 years).N.N.. it may not be desirable to make him or other Executor to file another suit. filing the suit.N.Shetty on behalf of plaintiff trust. 53. is not also as if defendants are facing an entirely new situation by way of treating Mr. and there is also no contravention of substantive provisions of statutory law. a suit was filed by Company for recovery of money. 52 It. when suit filed in one capacity and when he is found. who happened to be the trustee of the plaintiff trust. but also it is to be noted that there is no prejudice caused to defendants. or defended on behalf of a public corporation public interest should not be permitted to be defeated on mere technicality. Selvaradjalou Chetty Trust . 50.N. and it is found that towards the latter capacity the remedy could be moulded. then can a decree be passed in his favour as an executor of the Will and not as a trustee of the plaintiff trust. H. Any empty ritual in the name of opportunity if required further will pave way only for endless multiplicity of proceedings. Shetty in his defferent capacity as executor of the will of Padmini. Simply because H. It is not only that rules or procedures are handmaid of Justice. This fact is not disputed. the 1st defendant had no title in suit property. in different capacity. Ltd. then the suit can be decreed in favour of H. especially in the present facts and circumstances of the case.N. appointed by Mrs. This undisputed area only is the basis for construing that among the different capacities of. As some of the executors passed away and some resigned and when H. Hind High Vaccum Co.Shetty himself is very old. as given hereunder. in Private Eye (P) Ltd.B. There is sufficient power in the Courts.N.N. whereby premises were drawn as above in order to mould the relief in this suit items.N.. AIR 1997 3C page 3 was relied upon: In cases like the present where suits are instituted. in the above case. In this connection. 48. The subject is very clear that 1st defendant has no title in suit property so as to convey it to defendants 3 to 6 and that is why it was found earlier that the sale in favour of defendants 3 to 6 is liable to be set aside. entitled to deal with suit property in another capacity.B. So it cannot be said that there was no participation of defendants 3 to 6 in arriving at the premises which are taken to mould the relief... v. That disputed area was found keenly contested by defendants 3 to 6. as executor. The undisputed fact remains about testatrix executing Trust Deed and Will and among which disposition of suit item is found in the latter. the real owner. H. 51. Shetty.org/doc/4776/ 13 . the following observation made by the Supreme Court in United Bank of India v. Now the question arises as to whether in a suit filed by H. the suit was dismissed on the ground that he was not authorised to do so. is contained in para 10 and 19 of Will were interpreted by the side of defendants 3 to 6 (the contesting defendants) empowering only the executor to deal with the suit property. After all H. Procedural defects which do not go to the root of the matter should not be permitted to defeat a just cause.B. obliging the executors to implement it. is it necessary for him to file another suit in order to get a decree for setting aside the sale of defendants 3 to 6 of suit property and in order to oblige the terms of the Will of the testatrix who was found as a real owner of the property. In my opinion. the case about derivation of title in suit property from Somasundaram to Padmini Chandrasekaran was fought by defendants tooth and nail. Shetty. 2006 (11) Mr.B. B.N. Shetty although filed the suit representing the Trust. like the instant one (as there is lack of evidence regarding construction of compound wall and the land is manifestly lying vacant).B. This finding was arrived only after keen contest between parties. P-3 will of Mrs. for (i) setting aside the sale deeds in favour of defendants 3 to 6 by the 1st defendant relating to the suit property (through the 2nd defendant as Power Agent). shall have to be clothed with a decree setting aside the sale in favour of defendants 3 to 6. H.N. Shetty in the capacity of executor. to ensure that injustice is not done to any party who has a just cause. Thus H.http://indiankanoon. which was held supra as invalid one.N. as title follows possession in a case of vacant site. H. As far as possible a substantive right should not be allowed to be defeated on account of a procedural irregularity which is curable. when found holding capacity as executor of testatrix to execute a sale deed in order to implement the other terms of the Will. Plaintiff Trust is not entitled to any decree. There will be no order as to costs. Further. on 1 September. and for (III) a direction to the above executors of will to execute the terms found in para 10 of Ex.B. 54. (ii) permanent injunction restraining the defendants 3 to 6 from in any manner dealing with the suit property and permanent injunction restraining the defendants from putting up any construction over the suit property. Selvaradjalou Chetty Trust .N. Indian Kanoon . Shetty sitting in the Arm of Testatrix undoubtedly had a substantial right to deal with suit property which can be done only after setting aside the sale in favour of defendants 3 to 6. 55.. As mentioned supra. Padmini Chandrasekaran (which was already probated) and as found therein. But the remedy is moulded for reasons mentioned supra. Mr H. injunction has to be granted to Mr. vs Sarvothaman And Ors. 56.org/doc/4776/ 14 . in passing a decree in favour of Mr. Shetty in his capacity as executor of Will..N.B. 2006 the Code of Civil Procedure.
Report "N. Selvaradjalou Chetty Trust ... vs Sarvothaman and Ors. on 1 September, 2006[1]"