Holding

The sale deed executed by Marappa is invalid as it was without consideration and on an understanding not to be acted upon, while the will is genuine and exclusive possession by a co‑sharer does not constitute adverse possession.

Summary

The appellant Sadasivam sought a declaration that a sale deed executed by his father Marappa in favour of the respondent Doraisamy was a sham and that his interest in the joint family property remained unaffected. The lower courts had held the sale deed valid and the will of the grandfather Karuppanna, bequeathing half the joint family share to Doraisamy, genuine. The Supreme Court examined the circumstances of the sale deed, noting that it was executed for a nominal consideration of Rs.19,000, with Rs.15,000 allegedly paid to creditors who later testified they had never advanced any loan, indicating no genuine consideration. The Court also held that exclusive possession by a co‑sharer does not amount to adverse possession unless the other co‑sharer is ousted, which was not the case. Consequently, the sale deed was declared invalid, the will upheld, and the appellant's half‑share in the joint family property was decreed, with no order as to costs.

Issues considered

The validity of the sale deed executed by Marappa in favour of Doraisamy, particularly whether it was a sham and lacked consideration.
The genuineness and validity of the will executed by Karuppanna bequeathing half the joint family property to Doraisamy.
Whether exclusive possession by a co‑sharer amounts to adverse possession under the Limitation Act.
The effect of a sale deed executed by a Karta on joint family property without legal necessity.

Legislation cited

Limitation Act, 1963s. 64, s. 65
Transfer of Property Act, 1882s. 54

Subjects

sale deedconsiderationsham transactionjoint family propertyco‑ownershipadverse possessionwill validityTransfer of Property ActLimitation Act

Judgment

A SADASIVAM
v.
K. DQRAISAMY
'(
FEBRUARY 9, 1996

B [G.N. RAY AND B.L. HANSARTA, JI.]

Transfer of Property Act, 1882-Section 54-Sale deed-validity
of-Alienation infavour of near relation with understanding that the document
not to be acted upon-Sale deed executed without consideration-Invalid.
c Limitation Act, 1963-Aits. 64, 65-Adverse possession-Joint Fa11iily
propenies-Exclusive possession of co-sharer-Wliether amounts to adverse
possession-Held, No, unless such possession is exercised by ousting the other
co-sharer.
.
....
D M, the father of the appellant filed a suit for a declaration that the
sale deed executed by him in favour of the respondent was a sham docu-
ment and had not been acted upon, another suit was filed for a permanent
injunction restraining the respondent from interfering with the peaceful
enjoyment of the suit properties. The respondent also filed a suit for a
declaration of half share in the joint properties by the grand father of the
E appellant since bequeathed to him by a will. The trial Court dismissed the
suit filed by plaintiff M but decreed the suit by the respondent on the
finding that the sale deed executed by Min favour of respondent conveying
his share in the joint family properties was not a sham document but a
valid document and the will executed by father of M bequeathing his half
F share in the ,joint family properties in favour of the respondent was also
a genuine will thereby conveying his interest in favour of the respondent.
During appeal filed against this judgment, M died and appellant was
brought on record as his legal representative. The High Court upheld the
finding of the trial Court. Hence these appeals.
G The appellant submitted that. the will should not have been held valid
and genuine sfnce the validity of a will operates as a judgment in rem; that
the Court has a duty to ensure that such will had in fact been executed by
the testator out of his free volition and if there are circumstances which
raise suspicion about the genuineness of the will, it is the duty of the
H legatee or the executor of the will to satisfy the Court that the will had been
336
SADASIVAM v. K. DORAISAMY 337

genuinely executed by repelling the suspicious circumstances; that in this A
case the will seeing light of the day only in 1985 though it was executed in
.. 1979, the will beins unregistered, there being no witness of the locality and
divesting of close relations, were suspicious circumstances; that no
genuine sale deed had been executed by M by receiving consideration for
the valuable properties; that even if the will was held to be genuine and if
B
the sale deed executed by M was held to be a genuine sale deed and not a
sham document, by such sale deed the interest of the appellant could not
be affected, there being no case of transfer of the joint family property by
the Karta for legal necessity, the inter.est of the appellant who was a
coparcener in the property could not be affected.
c
The respondent submitted that the will executed by the father of M
and the deed of sale e~cuted by M in favour of the respondent had been
held to be genuine and valid documents after considering the evidences
adduced in the case and such findings based on cogent reasons and on
correct appreciation of the facts and circumstances of the case and the D
evidences on record should not be interfered with by this Court; that the
respondent a very close relation of M, was brought up in the ancestral
house of M and his father, the sale deed executed by M in favour of the
creditors had been removed by M from the custody of the respondent and
hence no adverse inference against the respondent for the custody of such
document with M should be drawn; that the plaintiff did not lead any E
convincing evidence to show that the sale deed. was executed under any
undue influence exerted by the defendant and that despite execution of the
sale deed, it was M who had owned and possessed the land sold by him,
therefore, it was rightly held that the sale deed was a valid document and
not a sham transaction.
F
Allowing the appeals in part, this Court

HELD : 1.1. The sale deed was purported to have been executed by
M, the father of appellant, for liquidating his antecedent debts on account
of two pronotes executed by him in favour of two creditors. M was not a G

-- man withod means and he owned and possessed valuable properties. No
evidence was led to establish that he had to incur debts for maintenance
of family. K, the father of M was alive till 6.2.1979. The joint family owned
and possessed various properties out of which shortly before his death in
January, 1979, K bequeathed his half share in the joint family properties H
338 SUPREME COURT REPORTS [1996) 2 S.C.R.

A by executing a will in favour of respondent. The evidence on record
indicated that K and M had good terms. It was the positive case of the
respondent that with the knowledge and consent of M the said will was
executed by K where M was a signatory. The disputed sale deed was
executed in 1984. There was no evidence to suggest that during the period
before 1979 to 1984 M had to incur loans for the legal necessity for
B maintaining the family. The sale deed was executed for a consideration of
Rs. 19,000 and out of the said sum Rs. 15,000 was paid to two creditors on
account of alleged pronotes. Both the said creditors had deposed in the
case instituted by M as witnesses for the plaintiff and they had categori-
cally deposed that they did not advance any loan for which pronotes had
C to be executed in their favour. The sale deed and both the pronotes were
produced by M. Such depositions of the two creditors coupled with the
fact that the sale deed and yronotes were in the custody of M supported
the case of M that out of dissatisfaction of M for his son (the appellant)
.. i
and to teach him a lesson the sale deed was executed in favour of his very
D close relation, the respondent who was not only his sister's son but also
his wife's brother, without any consideration for such sale deed and on an
understanding that the said document was not to be acted upon. The High
Court accepted the case of respondent that such documents were illegally
removed by M taking advantage that the respondent used to stay in the
·house of M without ad~erting 'to the depositio~s of the alleged creditors.
E The said depositions clearly supported the case of M th.at there was no
necessity to liquidate any antecedent debt for which a valid sale deed on
receiving consideration had to be executed. The respondent also failed to
produce any receipt or convincing evide~ce to show that after liquidating
Rs. 15,000 towards the debts he had in fact, paid the balance sum of Rs.
F 4,000 to .M. M challenged the validity of the sale deed shortly after its
execution. Normally if a deed was voluntarily executed, it is not expected
to be challenged shortly after such execution. [344-D-H; 345-A-D]

1.2. There was no finding by the High Court as to the exclusive
G possession of either of the party. Even if it was accepted that the respon-
dent had exercised possession over the lands covered by the sale deed, such
possession may be explained by indicating· that the respondent obtained
interest to the extent of half share by virtue of the will executed by K.
Hence, as a co-sharer, he was expected to possess that lands not parti-
tioned between the parties. Exclusive possession of a co-sharer does not
-
H amount to adverse possession against other co-sharers unless such pos-
....
____J SADASIVAM v. K. DORAISAMY fG.N. RAY, J.] 339

session is exercised by ousting the other co-sharers. There is no such case A
of ouster of a co-sharer and thereafter exercise of exclusive possession
openly and as of right by the respondent. That apart, the sale deed was
executed by M in September 1984 and the suit was instituted by him for
declaration of the sale deed as sham and invalid document in 1985. Hence,
question of title by adverse possession did not arise. [345-E-G]
B
1.3. No interference is called for against the decree in favour of the
respondent about his title to half share of K in joint family properties on
account of will executed by K in favour of the respondent. But in the facts
of the case, the sale deed executed by M must be held to be an invalid

-- document being executed without any consideration presumably executed
on an understanding between the parties that the sale deed would not be
acted upon. [345-H; 346-A-B]
C

CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 291.5-16
of 1996.
D
From the Judgment and Order dated l.12.94 of the Madras High
Court in AS. No. 96 & 1508 of 1988.

Kapil Sibal, V. Krishnamurthy for the Appellant.

U.R. Lalit, C. Balasubramanium and K. Ram Kumar for the Respon- E

- dent.

The Judgment of the Court was delivered by

G.N. RAY, J. Leave granted.
F
Heard learned counsel for the parties. These appeals are directed
against judgment dated December 1. 1994 passed by the Division Bench of
Madras High Court in AS. No. 96 of 1988 and Transferred AS. No. 1507
of 1988 and Transferred AS. No. 1508 of 1988. Transferred Appeal No.
1507 of 1988 arose out of O.S. No. 187 of 1985 in the Court of learned
Subordinate Judge, Namakkal. Transferred AS. No. 1508of1988 arose out G

- of O.S. No. 168 of 1987 in the said Court. AS. No. 96 of 1988 arose out of
O.S. No. 274of1985 in the Court of learned Subordinate Judge, Namakkal.
The father of the appellant Sadasivam was one Marappa Gounder. The
said Marappa Gounder filed a suit in the Court of the learned Subordinate
Judge, Namakkal being O.S. No. 187of1985 for a declaration that the sale H
340 SUPREME COURT REPORTS [1996] 2 S.C.R.

A deed executed by the said Mara pp a in favour of the respondent-Doraisamy
was a sham document and had not been acted upon. The said Marappa
also filed another suit in the Court of the District Munsif, Namakkal being
O.S. No. 781of1985 for a permanent injunction restraining the respondent
Doraisamy from interfering with the peaceful enjoyment of the suit proper-
ties being Survey no. 149/1 on an allegation that the respondent had been
B attempting to encroach on the said property unlawfully. The said suit
before the learned Subordinate Munsif was subsequently transferred to the
Court of the learned Subordinate Judge, Namakkal and was numbered as
O.S. No. 168/87. While the two suits were pending, the respondent
Doraisamy also filed a suit being O.S. No. 274/85 in the Court of the
C learned Subordinate Judge, Namakkal inter alia for a declaration of half
share in the joint properties by Karuppanna Gounder the father of Marap-
pa since bequeathed to the said _Doraisamy by a will dated January 17, 1979
executed by the said Karuppanna Gounder.

D The learned Subordinate Judge, Namakkal, dismissed the suits filed
by Marappa but decreed the suit filed by the respondent Doraisamy inter
alia on the finding tliat the sale deed executed by Marappa in favour of
Doraisamy conveying his share in the joint family properties was not a sham .
document but a valid document and the will executed by Karuppanna
bequeathing his half share in the joint family properties in favour of the
E respondent Doraisamy was also a genuine will thereby conveying the
interest of Karuppanna in favour of the said Doraisamy.

Being aggrieved by the judgments passed in the said suits, Marappa
-
preferred appeals but during the pendency of such appeals, Marappa died
F and his son Sadasivam the appellant before this Court was brought on
record as his legal representative. In AS. No. 96/88 Sadasivam was also an
appellant. The High Court disposed of all the said appeals by a common
judgment dated December 1, 1994. The High Court inter alia held that the
will was executed by Karuppanna Gounder voluntarily in respect of his half
G share in the joint properties and such will was genuine and by virtue of the
said will, the respondent acquired the half share in the joint a family
properties belonging to Karuppanna. The High Court also upheld the
finding of the trial court that the sale deed executed by Marappa in respect
of other half share in the properties in favour of the respondent was not a
H sham document and in view of such sale deed, the respondent also ac-
SADASIVAM v. K. DORAISAMY (G.N. RAY, J.] 341

quired the title to the joint family properties belonging to the said Marappa A
Gounder.

Mr. Kapil Sibal, learned senior counsel appearing for the appellant,
has submitted that the will should not have been held valid and genuine by
the courts below since the validity of a will operates as a judgment in rem. B
The Court has a duty to ensure that such will had in fact been executed by
the testator out of his free violation by fully understanding the implication
of the will executed by him and the execution of such will has been properly
attested by at least two witnesses. He has submitted that if there are
circumstances which raise suspicion about the genuineness of the will, it is
the duty of the legatee or the executor of the will to satisfy the Court that
c
the will had been genuinely executed by repelling the suspicious cir-
cumstances. Mr. Sibal has indicated some of the circumstances which
according to the appellant reasonably raise suspicion about the genuine-
ness of the will and he has contended that evidence adduced in the case
was not sufficient to repel suspicion arising out of such circumstances. We D
are, however, not inclined to accept such contentions of Mr. Sibal because
in the impugned judgment, the High Court has indicated cogent reasons
as to why the will executed by Karuppanna Gounder should be accepted
to be genuine.
E
As regards the circumstances which have been characterised by Mr.
Sibal as suspicious, the one, namely the will seeing light of the day only in
1985 though it was executed in 1979, is really suspicious; others, like it being
unregistered, there being no witness of the locality and divesting of close
relations, are not so, as, very often a will is not registered and such persons F
are called to attest it in whom the testator has confidence, even if they be
residing at some distance. Divesting of close relations being the purpose
of execution of will, this is normally not a suspicious circumstance. This
apart, as submitted by Mr. Lalit, good reason existed for bequeathing the
property to the respondent - the same being his having been brought up G
by Karuppanna. As to making the will public in 1985, the explanation is
that relationship with Ma,rappa become strained when he filed suit No. O.S.
187 of 1985, where after suit for probate of the will was filed by the
respondent - the same suit No. O.S. No. 274 of 1985. The aforesaid delay
cannot, in these facts, raise any suspicion. So, the will cannot be said to be
surrounded with suspicious circumstances. H
342 SUPREME COURT REPORTS [1996] 2 S.C.R.

A Mr. Sibal has also submitted that unfortunately the trial court and
the High Court have also found that the sale deed executed by Marappa
Gounder in favour of the respondent Doraisamy was a genuine document
even though the High Court failed to consider and appropriate the deposi-
tion of PW 2 Chinnappa Gounder and the deposition of PW 3 Nallusamy
in A.S. No. 96/87. Mr. Sibal has submitted that according to the respondent
B the sale deed was executed by Marappa in favour of the respondent to
liquidate his debts on account of two promissory notes executed by Marap-
pa in favour of Chinnappa Gounder and Nallusamy for a total sum of Rs.
15,000 but both the said Chinnappa Gounder and Nallusamy stated in their
depositions that Marappa Gounder did not receive Rs. 10,000 from Chin-
C nappa Gounder and Rs. 5000 from Nallusamy and the said Marappa had
not executed any pronote in favour of the said Chinnappa Gounder or
Nallusamy. Such evidence clearly indicates that there was no necessity for
executing the said sale deed for liquidating the loans under the pronotes
and the case of the defendant Doraisamy that he had paid off the loans
D under the said pronotes as a consideration for the said sale deed, cannot
therefore be accepted.

Mr. Sibal has also submitted that as- a matter of fact, the sale deed
was produced by Marappa in the suit and if the possession of the said
document with Marappa is considered in the context of the depositions of
E Chinnappa Gounder and Nallusamy, ·it will be quite apparent that no
genuine sale deed had been executed by Marappa by receiving considera-
tion for the valuable properties alleged to have been conveyed by him to
Doraisamy. Mr. Sibal has submitted that unfortunately the High Court
failed to consider the implication of the depositions of the said two alleged
p creditors of Marappa. Hence, the finding niade by the High Court that the
sale deed executed by Marappa in f;ivour of Doraisamy was a genuine
document should not be accepted as a proper finding of fact cin considera-
tion of relevant materials.

Mr. Sibal has submitted that in the aforesaid facts, even if the will is
G held to be genuine, this Court should allow this appeal to the extent of half
share belonging to Marappa in favour of the appellant. Mr. Sibal has also
submitted that even if the sale deed executed by Marappa is held to be a .
genuine sale deed and not a sham document, by such sale deed the interest
of the appellant Sadasivam cannot be affected. No evidence has been led
H that Marappa as a Karta of the joint family transferred the interest of both
SADASIVAM v. K. DORAISAMY [G.N. RAY, J.] 343

Marappa and Sadasivam for any legal necessity of the joint family. In the A
absence of a case of transfer of the joint family pr_operty by the karta for
legal necessity, the interest of Sadasivam who is a coparcener in the said
property cannot be affected. Hence, even if this Court is not inclined to
hold that the said deed executed by Marappa was a sham document, the
appellant is entitled for a declaration that his interest in the half share of B
the joint property had not been affected by the transfer by way of sale deed
executed by Marappa in favour of the respondent.

The learned counsel appearing for the respondent Doraisamy has
however submitted that the will executed by Karuppanna and the deed of
1 sale executed by Marappa in favour of the respondent have been held to C
be genuine and valid documents by the learned Subordinate Judge and also
by the High Court after considering the evidences adduced in the case.
Such findings based on cogent reasons and on correct appreciation of the
facts and circumstances of the case and the evidences on record should
not be interfered with by this Court. D

It has also been contended by the learned counsel for the respondent
that Doraisamy, the respondent was a very close relation of Marappa and
he being daughter's son of Karuppanna was brought up in the ancestral
house of Karuppanna and Marappa. Taking advantage of such close
relationship between the parties and also taking advantage that at the E
relevant time, Doraisamy used M stay in family dwelling house of Marappa,
the sale deed executed by Marappa and the two pronotes executed by
Marappa in favour of the creditors had been removed by Marappa from
the custody of Doraisamy. Such case of the respo.ndent has been accepted
by the High Court by indicating reasons. Hence no adverse inference F
against the respondent for the custody of such documents with Marappa
should be drawn. The learned counsel has submitted that Marappa in his
pleadings in the suit for declaration that the sale deed executed by him in
favour of Doraisamy was a sham document, had clearly admitted that when
he was ill, his son the appellant before this Court did not render any G
assistance to him and he became annoyed with his son and hence executed
the sale deed to liquidate his debts. The plaintiff did not lead any convinc-

-
ing evidence to show that the deed was executed under any undue influence
exerted by Doraisamy although onus was with the plaintiff to establish the
factum of undue influence alleged to have been exerted on him. Marappa
also failed to lead reliable and convincing evidence to show that despite H
344 StJPREME COURT REPORTS [1996] 2 S.C.R.

A execution of the said sale deed in favour of Doraisamy, it was Marappa
who had owned and possessed the land sold by him. It was necessary for
the success in the suit filed by Marappa to establish the fact of owning and
possessing the land sold by Marappa~ The learned counsel for the respon-
dent has submitted that in the aforesaid facts, both the courts had no
difficulty in rejecting the contention of Marappa that although he had
B executed the sale deed in favour of Doraisamy such deed was not intended
to be acted upon and the same was a sham document. The learned counsel
has, therefore, submitted that no interference is called for by this Court
and the appeals should be dismissed with cost.

C After giving our careful consideration to the facts and circumstances
of the case and the decisions of the courts below, it appears to us the
validity of the sale deed executed by Marappa has not been considered in
the proper perspective. The sale deed was purported to have been ex-
ecuted by Marappa for liquidating his antecedent debts to the tune of Rs.
D 15,000 on account of two pronotes executed by him in favour Chinnappa
and Nallusamy respective for Rs. 10,000 and Rs. 5,000. Marappa was not
a man without means and he owned and possessed valuable properties. No
evidence was led to establish that he had to incur debts for maintenance
of family. It is on record that Karuppanna the father of Marappa was alive
till 6.2.1979. The joint family owned and possessed various properties out
E of which shortly before his death in January 1979, Karuppanna bequeathed
his half share int.he joint family properties by executing a will in favour of
Doraisamy. The evidence on record indicates that Karuppanna and Marap-
pa had good terms. As a matter of fact, it is the positive case of the
respondent Doraisamy that with the knowledge and consent of Marappa
F the said will was executed by Karuppanna where Marappa was a signatory.
· The disputed sale deed was executed in 1984. There is no evidence to
suggest that during the period before 1979 to 1984 Marappa had to incur
loans for the legal necessity for maintaining the family. The sale deed was
executed for a consideration of Rs. 19,000 and out of the said sum of Rs.
19,000 Rs. 15,000 was paid to two creditors on account of alleged pronotes.
G Both the said creditors have deposed in the case instituted by Marappa as
witnesses for the plaintiff and they have categorically deposed that they did
not advance any loan for which pronotes had to be executed in their favour.
The sale deed and both the pronotes were produced by Marappa. Unfor-
tunately High Court failed to consider the implication of the depositions
-
H of Chinnappa and Nallusamy. In our view, such depositions couplt:fd with
SADASIVAM v. K. DORAISAMY [G.N. RAY, J.] 345

the fact that the sale deed and pronotes were in the custody of Marappa A
support the case of Marappa that out of dissatisfaction of Marappa for his
son Sadasivam and to teach him a lesson the sale deed was executed in
favour of his very close relation Doraisamy who was not only his sister's
son but also his wife's brother, without any consideration for S\JCh sale deed
and on an understanding that the said document was not to be acted upon.
B
The High Court accepted the case of Doraisamy that such documents were
illegally removed by Marappa taking advantage that Doraisamy used to stay
in the house of Mara pp a without adverting to the depositions of the alleged
creditors. The said depositions clearly support the case of Marappa that
there was no necessity to liquidate any antecedent debt for which a valid
sale deed on receiving consideration had to be executed. It may be noted c
here that Doraisamy also failed to produce any receipt or convincing·
evidence to show that after liquidating Rs. 15,000 towards the debts he had
in fact, paid the balance sum of Rs. 4,000 to Marappa. It may also be stated
here that Marappa challenged the validity of the sale deed shortly after its
execution. Normally if a deed was voluntarily executed, it is not expected D
to be challenged shortly after such execution.

It has been contended by the learned counsel for the respondent that
if the sale deed was a sham document, not intended to be acted upon.
Marappa should have established his possession of the lands under the sale
deed to the exclusion of Doraisamy. We may indicate here that there is no E
finding by the High Court as to the exclusive possession of either of the
party. Even if it is accepted that Doraisamy had exercised possession over
the land covered by the sale deed, such possession may be explained by
indicating that Doraisamy obtained interest to the extent of half share by
virtue of the will executed by Karuppanna. Hence, as a co-sharer, he was F
expected to possess the lands not partitioned between the parties. Ex-
clusive possession of a co-sharer does not amount to adverse possession
against other co-sharers unless such possession is exercised by ousting the
other co-sharers. There is no such case of ouster of a co-sharer and
thereafter exercise of exclusive. possession openly and as of right by
Doraisamy. That apart, the sale deed was executed by Marappa in Septem- G
ber 1984 and the suit was instituted by Marappa for declaration of the sale
deed as sham and invalid document in 1985. Hence, question of title by
adverse possession did not arise.

We have already indicated that no interference is called for against H
{.,
346 SUPREME COURT REPORTS [1996] 2 S.C.R.

A the decree in favour of Doraisamy about his title to half share. of Karup-
panna in joint family properties on account of will executed by the said
Karuppanna in favour of Doraisamy. But in .the facts of the case, the sale
deed executed by Marappa must be held to be an invalid document being
executed without any consideration presumably executed on an under-
B standing between the parties that the sale deed would not be aeted upon.
We, therefore allow the appeals in p~rt by setting aside· the judgments and
decrees passed in AS. Nos. 1507 and 1508 of 1988 arising out of O.S. No.
187 of 1985 and O.S. No. 168 of 1987 of the court of the learned Subor-
dinate Judge, Namakkal. The appellant's half share in the joint family
properties is hereby decreed after setting aside the sale deed dated 10.9.84
C executed by Marappa in favour of respond~nt Doraisamy. There will be no
order as to costs. --
R.A. Appeals allowed.