Madras High Court
Karuthapandian vs Venkidammal ... 1St on 2 August, 2021
S.A.No.774 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.774 of 2013
Karuthapandian ... Appellant / Appellant / 6th Defendant
-Vs-
1.Venkidammal ... 1st Respondent / 1st Respondent / Plaintiff
2.Ramasami
3.Seenivasan
4.Saravanakumar
5.Mahalakshmi
6.Kavitha
7.Kalimuthu Thevar
8.Supputhayee ... Respondents 2 to 8 / Respondents 2 to 8/
Defendants 1 to 5, 7 & 8
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree passed in A.S.No.87 of 2010 on the
file of the Sub Court, Sankarankovil, dated 21.08.2013 confirming the
judgment and decree in O.S.No.4 of 2009 on the file of the Additional
District Munsif Court, Sankarankovil, dated 17.08.2010.
For Appellant : Mr.R.J.Arivu Kumar
for Mr.R.Manimaran
For R1 : Mr.V.Meenakshi Sundaram
https://www.mhc.tn.gov.in/judis/
1/8
S.A.No.774 of 2013
for Mr.D.Nallathambi
For R2, R7 &
R8 : exparte
For R3 to R6 : Mr.S.Rajesh Kanna
JUDGMENT
The 6th defendant in O.S.No.4 of 2009 on the file of the Additional
District Munsif Court, Sankarankovil, is the appellant in this second appeal.
2. The said suit was filed by the first respondent herein namely
Venkidammal seeking the relief of partition and separate possession of her
1/6th share in the suit properties. The suit items are four in number. There
is no dispute that the suit properties are ancestral properties in the hands of
the first defendant/Ramasamy who is the father of Venkidammal.
Ramasamy got married to one Saroja and through the said wedlock, the
plaintiff Venkidammal and the second defendant Seenivasan were born.
Following the demise of Saroja, Ramasamy/D1 got married to one
Palaniammal. Through Palaniammal, D3 to D5 were born. The suit items 1
to 3 were mortgaged by Ramasamy in favour of the appellant vide Ex.B1.
Later, items 1 to 3 were sold by Ramasamy to the appellant vide Ex.B2
dated 05.04.2004. The fourth item was sold by Ramasamy to D8 vide sale
deed Ex.B5. According to Venkidammal, the alienations were not for any
https://www.mhc.tn.gov.in/judis/
S.A.No.774 of 2013
family necessity and that in any event, the offending transactions can be
valid only to the extent of her father's 1/6th share in the suit properties.
Seeking partition, the aforesaid suit was filed. The appellant filed his
written statement controverting the plaint averments. The appellant took
the stand that from a mere perusal of Ex.A1-mortgage deed dated
14.07.1997, one can note that the mortgage was for family necessity. Since
the mortgage debt could not be cleared, Ramasamy sold the property in
favour of the mortgagee vide Ex.B2. The sale was not impeached within
three years. Therefore, according to the appellant, the suit was not
maintainable as far as the appellant is concerned. Based on the divergent
pleadings, the learned trial Judge framed the necessary issue. The plaintiff
Venkidammal examined herself as P.W.1 and marked Ex.A1 to Ex.A3. The
appellant examined himself as D.W.1 and two other witnesses were
examined on the side of the defendants. Ex.B1 to Ex.B5 were marked.
After consideration of the evidence on record, the trial Court decreed the
suit as prayed for. The preliminary decree for partition and separate
possession was passed declaring the plaintiff's 1/6th share in the suit
properties. Aggrieved by the same, the appellant alone filed A.S.No.87 of
2010 before the Subordinate Judge, Sankarankoil. By the impugned
judgment and decree dated 21.08.2013, the first appeal was dismissed.
Challenging the same, this second appeal came to be filed.
https://www.mhc.tn.gov.in/judis/
S.A.No.774 of 2013
3. The second appeal was admitted on the following substantial
questions of law:-
1.Whether the Courts below is right in granting the relief of
partition when there is no specific pleading regarding absence of legal
necessity on the part of the Kartha in alienating 1 to 3 items of the suit
properties?
2.Whether the plaintiff has got any right to sue when she got
married prior to coming into force of Act 1 of 1989 in the light of non
production of any documentary evidence or independent oral
corroborative evidence regarding the date of marriage?
3.Whether the Courts below are correct in decreeing the suit
which is barred by limitation since Ex.B2 is dated 05.04.2004 and the
first respondent is aged 26 years as on the date of filing of the suit and
since the impugned transaction is voidable one?
4.The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds. He would point out
that Ex.B2-sale deed in turn refers to Ex.B1-mortgage deed. From a close
reading of the recitals found in both the documents, one can easily come to
the conclusion that sale was made for legal necessity. The learned counsel
submitted that this aspect of the matter was not at all appreciated by the
Courts below. He called upon this Court to answer the substantial
questions of law in favour of the appellant and allow this appeal by setting
aside the impugned judgment and decree.
https://www.mhc.tn.gov.in/judis/
S.A.No.774 of 2013
5.Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree does not call for any
interference.
6.I carefully considered the rival contentions and went through the
evidence on record. There is no dispute that the suit properties bear the
character of ancestral properties at the hands of the first defendant /
Ramasamy. Ramasamy was allotted the suit items as is evident from
Ex.A3-partition list dated 28.06.1985. Even when the suit items were
allotted in favour of Ramasamy, the plaintiff had already been born.
Of-course, as per the law then obtaining, the plaintiff did not become the
member of the coparcenary. But on account of the Tamilnadu Act 1 of 1990
the plaintiff very much became the member of the coparcenary. The sale in
favour of the 8th defendant took place in the year 1984. But then, the 8th
defendant did not file any appeal challenging the decree passed by the
Court below in favour of the plaintiff. It is only the appellant who has filed
the first appeal and then the second appeal. The appellant is concerned
with the sale of items 1 to 3. Items 1 to 3 were mortgaged in the year 1997
and thereafter, sold on 05.04.2004. By the time when the sale took place,
not only the appellant but also two other children had already attained
https://www.mhc.tn.gov.in/judis/
S.A.No.774 of 2013
majority, they were full-fledged members of the coparcenary and had right
in the suit properties. Their consent was not at all obtained.
7. Apart from this fundamental flaw which is vitiating the impugned
sale transaction, it is obvious that Ramasamy had only 1/6th share in the suit
properties. Of-course, as karta of the family, Ramasamy/D1 could have
alienated the property for valid and legal necessity. But then, the burden to
show that the alienation was for legal necessity would lie only on the
alienee. Of-course the alienee can prove the existence of legal necessity by
referring to the relevant recitals in the document itself. If no such recital is
available, the alienee can establish the same by adducing extraneous
evidence. In the case on hand, in Ex.B1-mortgage deed, recital only reads
that mortgage debt was being incurred for agricultural necessities. This
recital is wholly insufficient to come to the conclusion that the act of
encumbrance was for valid necessity. In any event, the burden lies only on
the alienee to establish the same. The Courts below have concurrently
given a finding that alienation was not for legal necessity. The substantial
question of law has been framed as if the plaintiff is obliged to specifically
plead that there was no legal necessity and that therefore, the alienation was
vitiated. The law does not impose any such burden on the member of the
coparcenary challenging the alienation. The burden is only on the alienee
https://www.mhc.tn.gov.in/judis/
S.A.No.774 of 2013
or the kartha. The first substantial question of law has been incorrectly
framed.
8. In any event, when the Courts below have concurrently found that
alienation was not for legal necessity, in as much as the said finding has not
been shown as perverse, I hold that no substantial question of law arises for
consideration.
9.There is no dispute that the plaintiff / R1 herein was an unmarried
daughter when Tamilnadu Act 1 of 1990 came into force. Therefore, the
second substantial question of law also has been incorrectly framed. It is
not in dispute that the plaintiff was not a party to Ex.B2. The sale had
taken place in the year 2004 and the suit was filed in the year 2009 itself.
The plaintiff was not obliged to impeach Ex.B2 because she was not a party
to the same. She can conveniently ignore the same and independently file
the suit for partition. The third substantial question of law is also answered
against the appellant.
10. There is no merit in the second appeal. The second appeal stands
dismissed. No costs.
02.08.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A.No.774 of 2013
G.R.SWAMINATHAN.J.,
rmi
To
1.The Sub Court, Sankarankovil.
2.The District Munsif Court, Sankarankovil.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.No.774 of 2013
02.08.2021
https://www.mhc.tn.gov.in/judis/
