Attestation by an interested close relative can presume knowledge of a deed’s contents, Madras High Court rules

The plaintiffs claimed that 4 acres 1 cent in Survey No.74/4 was purchased in 1944 in the name of Poongavana Gounder, the eldest son and kartha of the joint family, using joint-family funds.

They alleged that the property was orally partitioned in 1950 among Poongavana Gounder and his three brothers, after which the respective branches conveyed portions of their allotted shares to the plaintiffs.

The plaintiffs sought declaration of title and recovery of possession over the ‘C’ and ‘D’ schedule properties.

The Trial Court held that the property was joint-family property purchased in Poongavana Gounder’s name as kartha, accepted the alleged oral partition, upheld the plaintiffs’ title and decreed the suit.

The First Appellate Court reversed that decision, holding that the property was Poongavana Gounder’s self-acquired property and that the oral partition was not proved.

The plaintiffs filed the present second appeal under Section 100 CPC.

Whether Poongavana Gounder’s attestation of Ex.A.12 raised a presumption that he knew and accepted its recitals concerning the prior partition, thereby estopping him and his successors from claiming the property as his separate property?

Whether the ‘A’ schedule property was joint-family property purchased in Poongavana Gounder’s name as kartha using joint-family funds, rather than his self-acquired property?

Whether the alleged oral partition among the four brothers and the subsequent conveyances of the ‘C’ and ‘D’ schedule properties were proved and legally valid?

Whether the defendants had perfected title by adverse possession or acquired a superior right on the basis of the revenue and criminal-proceeding records?

The Court applied Section 100 CPC governing interference in a second appeal on a substantial question of law and the doctrine of estoppel under Section 115 of the Indian Evidence Act, 1872.

It held that mere attestation ordinarily does not automatically establish consent to every recital; however, where a person having a tangible interest in property, particularly a close relative, attests a document affecting that property, the circumstances may raise a presumption that he knew its contents and accepted the representation, unless the presumption is rebutted.

The Court relied on Kandasami Pillai v. Rangasami Nainar, (1912) 23 MLJ 301; Narayana Aiyar v. Rama Aiyar, ILR (1915) 38 Mad 396; Nayakammal v. Munuswami Mudaliar, (1924) 20 LW 222; Ramaswamy Gounder v. Ananthapadmanabha Iyer, 1967 SCC OnLine Mad 269; Jagannatham Pillai v. Kunjithapatham Pillai, AIR 1972 Mad 390; Parasuram Mudaliar v. Devaki Bai, 1979 TNLJ 326; and Badri Narayanan v. Rajabhagyathammal, (1996) 7 SCC 101, which treated the effect of attestation as a fact-sensitive presumption.

The Court also applied the principles that title is not conclusively determined in proceedings under Section 145 CrPC and that adverse possession must be established for the statutory period through hostile and continuous possession.

The Court found that Poongavana Gounder’s attestation of Ex.A.12 was significant because he was a brother of one executant, had an interest in the property, and was the only brother who signed rather than affixed a thumb impression.

Ex.A.12 expressly described the property as having been obtained by Adhimoola Gounder’s branch in partition.

The Court held that Poongavana Gounder’s subsequent sale deed, Ex.A.2, also referred to the property in a manner consistent with Ex.A.12, confirming his awareness of and acquiescence in its recitals.

He and his successors were therefore estopped from asserting that the entire property was his separate acquisition.

Independently, the Court relied on evidence showing that joint-family property had been sold before the 1944 purchase, that the sale proceeds were intended to acquire another property, and that the consideration for the disputed purchase was paid from those family funds.

The testimony of the purchaser under the earlier sale deed and of the family members supported the conclusion that Poongavana Gounder purchased the property as kartha.

The Court also relied on contemporaneous documents referring to the brothers’ respective shares and possession, which corroborated the oral partition.

The subsequent mortgages and settlement relied upon by the defendants did not establish separate ownership.

The Section 145 CrPC order was held to be only a temporary arrangement concerning possession and not a determination of title.

The plea of adverse possession also failed because the suit was instituted within twelve years of the defendants’ asserted transactions and possession.

It held that, on the facts, Poongavana Gounder’s attestation of Ex.A.12, reinforced by the recitals in Ex.A.2 and the surrounding evidence, established knowledge and acceptance of the partition recited in Ex.A.12; he and his successors were consequently estopped from claiming the property as his separate property.

The Court further held that the ‘A’ schedule property was joint-family property purchased in Poongavana Gounder’s name as kartha, that the oral partition was proved, and that the plaintiffs acquired valid title to the ‘C’ and ‘D’ schedule properties.

The defendants’ title was recognised only to the extent of 51 cents in the ‘B’ schedule property.

The Second Appeal was allowed, the First Appellate Court’s judgment and decree were set aside, and the Trial Court’s decree granting declaration, recovery of possession and consequential reliefs was restored.

No order as to costs was made.