Madras High Court
Jeganathan vs Sellathurai on 6 January, 2021
S.A.(MD)No.861 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.(MD)No.861 of 2010
Jeganathan ... Appellant
Vs.
Sellathurai ... Respondent
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree of the lower appellate Court dated 05.07.2010
made in A.S.No.2 of 2010 on the file of the Additional Subordinate Court, Karur,
confirming the judgment and decree of the trial Court dated 12.11.2009 made in
O.S.No.325 of 2007 on the file of Principal District Munsif Court, Karur.
For Appellant : Mr.P.Vinoth
For Respondent : Mr.N.Satheesh Kumar
JUDGMENT
Aggrieved over the concurrent findings of the Courts below, dismissing
the suit filed for partition, the present Second Appeal is filed.
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S.A.(MD)No.861 of 2010
2.The parties are referred to as per their rank before the trial Court.
3.The brief fact, leading to file this Second Appeal, reads as follows:-
The suit property was originally owned by one K.Ramasamy Gounder,
by virtue of the partition deed dated 29.02.1964. The said K.Ramasamy Gounder
had a son viz., K.R.Ganesan. The said Ramasamy Gounder died long back leaving
behind his one son K.R.Ganesan. The said K.R.Ganesan had a son viz.,
G.Amirthalingam. The said K.R.Ganesan, Son of Ramasamy Gounder, executed a
settlement deed in respect of the property in favour of his son G.Amirthalingam
retaining a right for enjoyment, till his life time. Therefore, G.Amirthalingam is
absolutely entitled to the suit property. The said G.Amirthalingam has filed a suit
in O.S.No.679 of 1987 for partition. The above suit was decreed for 1/3 rd share.
The plaintiff has purchased the 1/3rd share, out of total extent of 1.25 acres in
S.F.No.125/7, situate at Appipalayam Village, Karur Taluk from K.R.Ganesan and
his son Amirthalingam for valuable consideration, through a registered sale deed
and a joint patta was also issued in favour of the plaintiff. In pursuant to the
above sale, the plaintiff is in joint possession of the property, without making any
division or partition. Hence, a suit in O.S.No.325 of 2007 for partition, claiming
1/3rd share.
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S.A.(MD)No.861 of 2010
4. The defendant, denying the case of the plaintiff, submitted that
K.Ramasamy Gounder had another son viz., Velusamy. On 29.05.1987, the
plaintiff's vendor K.R.Ganesan, executed a general power of attorney in respect of
his share in favour of his father K.Ramasamy Gounder. The said K.Ramasamy
Gounder, for himself and as a power agent of his son K.R.Ganesan and another
son Velusamy, has executed a registered sale deed, dated 03.06.1987, in respect of
an extent of 63 ¾ cents in S.F.No.125/7, in favour of one Ranjitham for total sale
consideration of Rs.38,000/-. Similarly, by sale deed dated 04.06.1987, remaining
extent of 63 ¾ cents were sold for similar value in favour of one P.Murugesan, Son
of Ranjitham. Thereafter, the said P.Murugesan, executed a gift settlement deed in
favour of his mother Ranjitham on 19.02.2018. Thereby, the said Ranjitham
become entitled to an entire extent of 1.27 ½ cents. The patta also stands in the
name of the said Ranjitham. Thereafter, the said Ranjitham and her legal heir have
executed a sale deed dated 30.10.2000, in favour of the defendant for a total sale
consideration of Rs.1,53,000/-. Ever since from the date of purchase, the
defendant is in possession and enjoyment of the property. The only intention of
the plaintiff is to grab the property from the defendant. Hence, disputed the rights
of the plaintiff.
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S.A.(MD)No.861 of 2010
5. The learned District Munsif, based on the pleadings framed the
following issues:
a) whether the plaintiff is entitled to partition as prayed for?
b) what are the other reliefs the plaintiff entitled to?
6. On the side of the plaintiff, he himself was examined as P.W.1 and
Exs.A1 to A12 were marked. On the side of the defendant, three witnesses were
examined and Exs.B1 to B10 were marked. Based on the evidence and materials,
learned District Munsif, answered the issues as against the plaintiff and dismissed
the suit. The first appellate Court has also confirmed the judgment of the trial
Court. As against the concurrent findings, the present second appeal is filed.
7. While admitting the Second Appeal, the following substantial
questions of law have been framed:-
a) Whether in law have not the Courts below erred in
ignoring the decree in O.S.No.679 of 1987 under which the
plaintiff's vendor became entitled to 1/3rd share?
b) Whether in law is not the lower Appellate Court
wrong in holding that the settlement deed dated 16.12.1974 was
not accepted when neither the defendant nor the other sharers
disputed the settlement deed? and
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S.A.(MD)No.861 of 2010
c) Whether in law have not the Courts below
misconstrued Ex.A8 wherein it is clearly recited that after
executing the settlement deed, Ganesan had ceased to have any
interest in the joint family property?
8. The learned counsel appearing for the appellant vehemently contended
that the Courts below have not considered the settlement deed executed in favour
of K.R.Ganesan, Son of K.Ramasamy Gounder. Once the settlement deed is
already in force in favour of G.Amirthalingam, the question of selling the property
by the Ramasamy Gounder does not arise at all under Exs.B2 and B3. It is the
further contention of the learned counsel appearing for the appellant that the share
of K.R.Ganesan has already dealt in favour of his son by Ex.A2, settlement deed
dated 16.12.1974. Such being the matter, the question of selling the property by
K.Ramasamy Gounder, at a later point of time, does not arise at all. It is the
further contention of the learned counsel appearing for the appellant that the said
G.Amirthalingam, the vendor of the plaintiff herein has already filed a suit in
O.S.No.679 of 1987, for claiming partition of his 1/3rd share. In the above suit,
preliminary decree was passed as early as on 21.04.1993. The trial Court and the
first appellate Court have ignored the preliminary decree passed in O.S.No.679 of
1987, wherein the defendant's vendor also a party. Hence, his contention is that
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S.A.(MD)No.861 of 2010
the Courts below have not appreciated the evidence and record. Ex.A8 also
confirms the execution of the settlement deed. Therefore, the share entitled by
K.R.Ganesan could not have been dealt with by others. The plaintiff has
purchased 1/3rd share from the said Amirthalingam under Ex.A4, dated
05.01.2007. Hence, the contention of the learned counsel appearing for the
appellant is that when the share of the vendor of the plaintiff has already declared,
the plaintiff is certainly entitled to claim partition in the suit property. Hence,
prayed for allowing the appeal.
9. The learned counsel appearing for the respondent would submit that
the suit is nothing, but abuse of process of law and the plaintiff's own imagination.
Ex.A4 was created only for the purpose of filing the said suit. Defendant has
purchased the suit property in the year 2000 itself. After seven years, the plaintiff
has purchased the property and filed the present suit for claiming partition. It is
the contention of the learned counsel appearing for the respondent that admittedly,
the property is an ancestral property and any settlement referred to is not valid in
the eye of law. Further all the co-owners joint together sold the property in the
year 1987 itself. Therefore, when the properties have been sold, any subsequent
documents will not create any right over the property to claim a partition. Hence,
his contention is that the Courts below have thoroughly analyzed the entire
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S.A.(MD)No.861 of 2010
evidence and dismissed the suit. Therefore, the same does not require any
interference. It is also his contention that while describing the boundary of the
property in Ex.B1, it is stated that the property situates on the western side of the
defendant's property. Therefore, it is very clear that the vendor of the plaintiff
G.Amirthalingam would not have been in possession of any portion of the plaint
schedule property. Hence, Prays for dismissal of the appeal
10. Heard the learned counsel appearing for the appellant, the learned
counsel appearing for the respondent and perused the materials available on record
carefully.
11. The suit has been laid, mainly on the strength of the settlement deed
dated 16.12.1974, said to have been executed by one K.R.Ganesan in respect of
his 1/3rd share in the ancestral property in favour of his son G.Amirthalingam. It
is not disputed by both sides that the suit property is an ancestral property allotted
to the K.Ramasamy Gounder under Ex.A1, the partition deed dated 29.02.1964. It
is the contention of the plaintiff that the said Ramasamy Gounder had only one son
viz., K.R.Ganesan, whereas, it is the contention of the defendant that the said
Ramasamy Gounder had two sons viz., K.R.Ganesan and Velusamy. On perusal of
Exs.B2 and B3, sale deeds dated 03.06.1987 and 04.06.1987, it is seen that the
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S.A.(MD)No.861 of 2010
contention of the plaintiff that K.Ramasamy Gounder had only one son is found to
be false. The above two sale deeds were executed by K.Ramasamy Gounder on
his behalf and also on behalf of one of his son K.R.Ganesan and another son
Velusamy, in respect of 1.27 ½ cents in the suit property. The above documents
makes it very clear that the contention of the plaintiff that Ramasamy Gounder had
only one son is untrue and the existence of the other son has been purposely
suppressed in the plaint. Be that as it may. The plaintiff is a purchaser of the so
called undivided 1/3rd share from the Amirthalingam. On perusal of Ex.A2, it is
seen that when the other co-owners are very much alive and when the properties
were not partitioned by metes and bounds, undivided share has been settled in
favour of one Amirthalingam, son of K.R.Ganesan by one of the co-owner. It is
well settled that when the ancestral properties remained joint and there was no
division by metes and bounds, the settlement of the property cannot be valid in the
eye of law. Be that as it may. If really, the settlement has been acted upon, there
was no reason as to why, the said K.R.Ganesan has given a registered power of
attorney in favour of his father to deal with his share. On a bare perusal of Exs.B2
and B3 sale deeds, make it clear that a general Power of Attorney has been given
by K.R.Ganesan to his father viz., K.Ramasamy Gounder to deal with the property.
On the strength of the above power of attorney, not only the share of the said
K.R.Ganesan, the remaining shares, belonged to K.Ramasamy Gounder and his
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S.A.(MD)No.861 of 2010
another son Velusamy, were also sold under Exs.B2 and B3, for valid
consideration in the year 1987 itself. Therefore, now it cannot be said that since
there was a settlement in respect of Amirthalingam property, the plaintiff's vendor
had a title to the property. It is also relevant to note that the suit in O.S.No.679 of
1987 appears to have been filed by the plaintiff's vendor for claiming 1/3 rd share.
In the said suit, preliminary decree has also been passed. Though it is submitted
by the learned counsel appearing for the appellant that the defendant's vendor has
also a party to the above suit, it is to be noted that the suit was filed for partition.
12. On perusal of the suit register-Ex.A3, it is seen that the suit has been
filed in the year 1987 i.e., on 29.06.1987 and the preliminary decree was passed on
21.04.1993. Except, the suit register-Ex.A3, no other documents were filed to
show that whether the pleadings in the above suit are similar in nature with regard
to the settlement and its validity has been made and contested and whether there
was any issues framed by the Court with regard to the settlement deed viz., Ex.A2.
Therefore, merely relying upon Ex.A3, this Court cannot come to the conclusion
that the issue with regard to the validity of the settlement deed dated 16.12.1974,
arose in an earlier occasion. Be that as it may. Though the preliminary decree was
passed on 21.04.1993, from the records, it is seen that it has not been enforced.
No final decree application has been filed for dividing the property, in pursuant to
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S.A.(MD)No.861 of 2010
the decree passed in O.S.No.679 of 1987. It is also relevant to note that to enforce
any decree of the Court, the period of limitation is twelve (12) years, as per Article
136 of the Limitation Act, 1963. Though the preliminary decree was passed in the
year 1993, it has not been enforced and no final decree application has been filed.
Though it is the contention of the learned counsel for the appellant that pursuant to
the preliminary decree, the partition deed was executed among the family
members under Ex.A8, it is to be noted that though the legal heirs of Ramasamy
Gounder has entered a partition deed, the defendant or his vendor are not a party
to the above document. In such view of the matter, mere entering of some
partition in respect of the undivided properties, it cannot be said that the decree
still holds good and creates a right. It is to be noted that any alienation is made by
the father in respect of the ancestral property, the same has to be challenged within
a period of twelve (12) years, as per Article 109 of the Limitation Act, 1963.
Admittedly, the father viz., K.Ramasamy Gounder has made alienations on
03.06.1987 and 04.06.1987. Such alienations have not been challenged by
K.R.Ganesan or his son within the period of limitation i.e., (12) years from the
date of sale. Therefore, it cannot be stated that the plaintiff's vendor had share in
the property. Even assuming that they had a share in the property, as per the
preliminary decree by operation of law, the same is lost and extinguished. When
co-shares is excluded from the joint family property, to enforce right to share, the
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S.A.(MD)No.861 of 2010
same should be done within a period of twelve (12) years, as per Article 110 of the
Limitation Act, 1963. Having obtained preliminary decree in the year 1993, the
same has not been enforced. Much water has been flown thereafter. On a perusal
of Ex.B1, dated 13.01.20103, the boundaries set out in the above deed, makes it
very clear that the plaintiff's vendor have no property in the above mentioned four
boundaries. If really, the plaintiff's vendor had retained their right in the property
or in possession of the property, the same would have been reflected in any one of
the boundaries, but the same has not been reflected. It also clearly indicates that
the rights of the plaintiff's vendor, if any, already lost by operation of law. It is
also to be noted that the plaintiff claims to have purchased the property in the year
2007, after seven years of purchase of the property by the defendant. It is to be
noted that in the year 1987 itself under Exs.B2 and B3, the kartha Ramasamy
Gounder and his two sons sold the suit survey field to one Mrs.Ranjitham and her
son Murugesan. Thereafter, the said Murugesan executed gift settlement in favour
of his mother and thereby the said Ranjitham has become absolute owner of the
property. The said Ranjitham along with her legal heirs had dealt with the
property in favour of the defendant in the year 2000, through Ex.B5. After the
above purchase, the plaintiff appears to have purchased the property from his
vendor, who already lost his share, if any, in the ancestral property not only by way
of sale under Exs.B2 and B3 and also by operation of law. Such being the
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S.A.(MD)No.861 of 2010
position, on the basis of the preliminary decree passed in the year 1993, which was
also not enforced within 12 years, his right has already extinguished by operation
of law. Such being the position, mere execution of any document did not convey
any title to the plaintiff to claim partition in the suit property.
13. Accordingly, this Court is of the view that the Courts below have
rightly appreciated the entire facts and circumstances and dismissed the suit and
accordingly, all the substantial questions of law are answered in fine.
14. In the result, this second appeal is dismissed. No costs.
06.01.2021
Index : Yes/No
Internet : Yes/No
vsm
Note: In view of the present lock down owing to COVID-19
pandemic, a web copy of the order may be utilized for official
purposes, but, ensuring that the copy of the order that is
presented is the correct copy, shall be the responsibility of the
advocate/litigant concerned.
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S.A.(MD)No.861 of 2010
To
1.The Additional Subordinate Judge,
Karur.
2.The Principal District Munsif,
Karur.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.861 of 2010
N.SATHISH KUMAR, J.
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S.A.(MD)No.861 of 2010
06.01.2021
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