Madras High Court
Jayakodi vs K.Jayaprakasam(Died) on 7 January, 2021
C.R.P.(PD)No.513 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 07.01.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD) No.513 of 2014
and M.P.No.1 of 2014
Jayakodi ... Petitioner
Vs.
Vellaiammal (died)
1. K.Jayaprakasam(died)
2. K.Nataraj
3. K.Nallusamy
4. Ponnammal
5. Thayammal
6. Kannan
7. Rathinammal
8. Devi
9. Bakkiam
(R5 to R9 brought on records
as legal representatives of the
deceased fist respondent viz.,
K.Jayaprakasam, vide Court
order dated 30.01.2020 made
in C.M.P.No.1121 of 2016 in
C.R.P.(NPD)No.513 of 2014) ... Respondents
Page 1 of 10
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.513 of 2014
Prayer :- Civil Revision Petition is filed under Article 227 of the
Constitution of India to set aside the fair and decreetal order dated
29.10.2013 made in I.A.No.495 of 2013 in O.S.No.161 of 2009 on the file
of the District Munsif Court, Mettur.
For Petitioner : Mr.P.Mani
For Respondents
For R1 : Died
For R2, R3
and R5 to R9 : Mr.M.Rajendiran
For R4 : No appearance
ORDER
This revision petition is arising out of the fair and decreetal
order dated 29.10.2013 passed by the learned District Munsif, Mettur in
I.A.No.495 of 2013 in O.S.No.161 of 2009, thereby dismissing the petition
filed for amendment to include the prayer of declaration by the petitioner
herein.
2. The petitioner is the plaintiff. She filed suit for partition as
against the defendants 1 to 5. The fifth defendant viz., Ponnammal filed
separate written statement stating that the portion of the suit property was
already purchased by her from the father of the petitioner/plaintiff herein by
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C.R.P.(PD)No.513 of 2014
a registered sale deed dated 13.07.1984. After the purchase, the fifth
defendant is in possession and enjoyment of the same. After the period of
three years from the filing of the suit, the petitioner/plaintiff filed the
petition for amendment to include the prayer for declaration declaring that
the sale deed executed in favour of the fourth respondent herein is null and
void. The trial Court dismissed the same for the reason that already the sale
was took place viz., on 13.07.1984 itself and as such the said property
cannot be included in the partition suit. Further stated that though the father
of the petitioner alive, he did not whisper about the sale deed.
3. The learned counsel appearing for the petitioner would submit
that now only the petitioner came to understand that the alleged sale deed
dated 13.07.1984 is a created and fabricated one, since the property which
was purchased by the fifth defendant/fourth respondent herein is in
possession and enjoyment of the respondents 2 and 3 herein. Therefore, the
prayer of declaration is not at all bared by limitation. In support of his
contention, he relied upon the judgement of this Court dated 05.08.2016
passed in S.A.No.408 of 2016, in the case of K.Chandralekha Vs.
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C.R.P.(PD)No.513 of 2014
S.Ravikumar and ors, in which this Court held as follows:
"18. When such being the clear and
categorical case of the plaintiff, more particularly
pleading of fraud, forgery, impersonation etc., I
am of the view that the technical plea of limitation
as raised by the appellant herein cannot be gone
into at this stage.
19. It is well settled that the plea of fraud,
forgery, impersonation in respect of certain
transactions which are put in question, will go to
the root of the matter and if such plea is proved,
any transaction made however long ago, becomes
void abinitio and the person claiming under such
fraudulent transaction cannot be permitted to hold
such fraudulent title continuously merely because
a technical plea of limitation would come to his
rescue. Needless to say that the technical
objections if any raised should be encouraged,
considered and decided by the Courts only when
such objection, if allowed, would result in
rendering the substantial justice between the
parties and not subverting the justice.
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C.R.P.(PD)No.513 of 2014
20. This Court considered the very same
issue in a recent decision reported in 2015(2)
CTC 67 (Kolli Venkata MohanRrao & another
vs. J.M.Patricia & others) wherein after following
the decision of the Apex Court, in Laxmibai's case,
it has been observed at paragraph No.33 as
follows:
33. Above all, in this case, a thorough
reading of the Plaint would show that the
Plaintiffs have pleaded that the impugned
transactions were made by committing the act of
forgery and impersonation. According to them, the
original owner, namely, Andrew Xavier Packiam
died intestate on 22.8.1978, and therefore, the
alleged Power of Attorney, dated 18.8.2000 said
to have been executed by such dead person, was a
rank forgery and by impersonation. This
allegation is certainly a very serious one and if
the same is proved, all the impugned transactions
cannot be sustained and they become voidab-
initio. Therefore, the Plaintiffs who made such
allegation should be given sufficient opportunity
to prove the same by conducting trial. Unless it is
found that such allegation is baseless or false and
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C.R.P.(PD)No.513 of 2014
without supporting evidence, the person against
whom such serious allegation is made, cannot be
permitted to raise certain technical objections to
escape from the clutches of trial. It is well settled
that if technicalities and substantial justice are
pitted against each other, only the latter should be
preferred. At this juncture, the observations made
by the Honourable Supreme Court in the case
reported in Laxmibai v. Bhagwantbuva, 2013 (1)
MWN (Civil) 446 (SC) : (2013) 4 SCC 97, in
Paragraph 49 in particular, are relevant to be
quoted: “49. … …. When substantial justice and
technical considerations are pitted against each
other, the cause of substantial justice deserves to
be preferred and the Courts may in the larger
interests of administration of justice may excuse
or overlook a mere irregularity or a trivial breach
of law for doing real and substantial justice to the
parties and pass Orders which will serve the
interest of justice best.” Therefore, these technical
objections raised by the defendants 1 & 2 in their
application for rejection of Plaint, cannot be
sustained at this stage, especially when those
objections are matters for trial. This Court is not
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C.R.P.(PD)No.513 of 2014
to be mistaken as if it holds that no such technical
objections can be raised in the Application under
Order 7, Rule 11, C.P.C. What it wants to
emphasise is as to who can raise such technical
objections. As stated supra, a person against
whom forgery and impersonation are pleaded, is
not certainly a person entitled to speak about the
technicalities and seek for a decision on such
technical objections first at the threshold, without
submitting himself to the trial to disprove such
serious allegations."
4. The petitioner filed the suit in the month of June, 2009. The
fifth defendant filed written statement on 29.09.2009. In the written
statement, she categorically stated that the portion of the suit property was
purchased by a registered sale deed vide document No.1830 dated
13.07.1984 from the father of the petitioner herein. Even then, the petitioner
did not take any steps to amend the prayer by including the prayer for
declaration declaring that the said deed is null and void, within the
stipulated time.
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C.R.P.(PD)No.513 of 2014
5. In the judgment citied by the learned counsel appearing for the
petitioner, this Court held that it is well settled that the plea of fraud,
forgery, impersonation in respect of certain transactions which are put in
question will go to the root of the matter and if such plea is proved, any
transactions made however long ago, becomes void abinitio and the person
claiming under such fraudulent transaction cannot be permitted to hold such
fraudulent title continuously merely because a technical plea of limitation
would come to his rescue. Therefore, the question of limitation does not
arise, since the petitioner specifically stated in her affidavit filed in support
of the main petition that the sale deed must be created and fraudulent one.
6. In view of the above discussion, the order passed by the trial
Court is perverse and liable to be set aside. Accordingly, the order dated
29.10.2013 passed by the learned District Munsif, Mettur in I.A.No.495 of
2013 in O.S.No.161 of 2009, is hereby set aside. Considering the fact that
the suit is of the year 2009 and also the nature of the suit, the trial Court is
directed to complete the trial within a period of six months from the date of
receipt of copy of this Order.
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C.R.P.(PD)No.513 of 2014
7. Accordingly, this Civil Revision Petition stands allowed. There
shall be no order as to costs. Consequently, connected miscellaneous
petition is closed.
07.01.2021
Internet : Yes
Index : Yes/No
Speaking order/Non-speaking order
rts
To
1. The District Munsif Court,
Mettur.
2. The Section Officer,
V.R. Section,
Madras High Court,
Chennai.
https://www.mhc.tn.gov.in/judis/
C.R.P.(PD)No.513 of 2014
G.K.ILANTHIRAIYAN, J.
rts
C.R.P.(PD) No.513 of 2014
and M.P.No.1 of 2014
07.01.2021
https://www.mhc.tn.gov.in/judis/
