Rajendran vs Thankian (Died)
2021 Latest Caselaw 14252 Mad

                                                                             S.A.(MD)No.59 of 2010

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                               DATED: 16.07.2021

                                                     CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                             S.A.(MD)No.59 of 2010


                   Muthulekshmi(Died)

                   1.Rajendran

                   2.Sundar raj

                   3.Leela Bai

                   4.Manoharan

                   5.Sundara Bai
                                            ... Appellants / Appellants 2 to 6 / Plaintiffs 3 to 7

                                                     -Vs-


                   1.Thankian (Died)
                   2.Sarojam
                   3.Vijayakumari
                   4.Vijayarani
                   5.Ramachandran
                   6.Rajendran @ Raju
                   (R2 to R6 are brought on record
                     as Lrs of R1 vide order dated 21.04.2016)
                                       ... Respondents / Respondents / Defendants 1 & 3 to 7

https://www.mhc.tn.gov.in/judis


                   1/10
                                                                             S.A.(MD)No.59 of 2010

                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree in A.S.No.77 of 2006, dated
                   31.03.2009 by the Sub Court, Kuzhithurai confirming the judgment and
                   decree passed in O.S.No.286 of 1998, dated 08.12.2004 by the second
                   Additional District Munsif Court, Kuzhithurai.
                                            For Appellant     : Mr.S.C.Herold Singh
                                            For R1            : Died
                                            For R2 to R6      : Mr.K.P.Narayana Kumar


                                                       JUDGMENT

The plaintiffs in O.S.No.286 of 1998 on the file of the second

Additional District Munsif Court, Kuzhithurai are the appellants in this

second appeal. The suit was filed seeking the relief of partition as well as

redemption. The suit was instituted by one Ramakrishnan Nadar. During

the pendency of the suit, he passed away and the appellants herein came on

record as his legal representatives. To understand the facts of the case

better, the following genealogy is relevant:-

Perumal Kochan

Samikon Kochumoni Ponnan

Ponnaian Thankappan

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.59 of 2010

2. The suit property was part of a larger extent of property measuring

one acre and 20 cents. It belonged to Perumal Kochan. His grand son

Ponnaian filed O.S.No.1153 of 1969 on the file of the District Munsif

Court, Kuzhithurai seeking the relief of partition. Ramakrishnan / original

appellant figured as 5th defendant in the suit. During the pendency of the

suit, Ramakrishnan sold 10 cents of land by way of two sale deeds in favour

of the first defendant namely Thankian, though the defendants would claim

that Ramakrishnan executed two sale deeds of mortgage in favour of

Chellamma w/o Thankian.

3. The case of the plaintiff is that he executed only one mortgage.

The fact remains that the deed of mortgage covered 14 cents of land.

Though the defendant would claim that Ramakrishnan received Rs.2,200/-

as mortgage money, Ramakrishnan would claim that he received only Rs.

1,000/- as mortgage money. Be that as it may, the factum of mortgage is not

in dispute. Though Ramakrishnan anticipated that he would be allotted 14

cents of land in the partition suit, he was eventually allotted little over 18

cents of land. Actually 18 cents of land was not available on ground; what

was available was only 14.64 cents of land. The case of Ramkrishnan is

that since he had sold only 10 cents of land in favour of Thankian, he is

entitled to redeem the remaining 4.64 cents of land. With these averments, https://www.mhc.tn.gov.in/judis

S.A.(MD)No.59 of 2010

O.S.No.286 of 1998 was filed. The suit claim was strongly contested by the

defendants.

4. The stand of the defendants was that in the final decree

proceedings, Ramakrishnan filed an affidavit, in which, he agreed that the

suit item 7 and suit item 13 can be allotted to Thankian. Ramakrishnan

was content to retain item 3 which measures a little over half cent of land.

Therefore, the present suit is clearly not maintainable. Based on the

divergent pleadings, the trial Court framed the following issues:-

“1.Whether the plaintiff entitled to get decree and Judgment for

partition as he prayed for ?

2. Whether the plaintiff entitled to get decree for redemption as

he prayed for?

3. Whether the defendant is having mortgage right over the suit

property which the plaintiff want to redeem ?

4. Is the suit not maintainable ?

5. Whether the description of property is not correct ?

6. Whether the plaintiff entitled to get suit relief from the

defendant ?”

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S.A.(MD)No.59 of 2010

5. On behalf of the plaintiffs, the third plaintiff Rajan examined

himself as P.W.1 and marked Ex.A1 to Ex.A4. The 7 th defendant Rajendran

examined himself as D.W.1 and marked Ex.B1 to Ex.B24. After

considering the evidence on record, the learned trial munsif, by judgment

and decree dated 08.12.2004 dismissed the suit. Aggrieved by the same, the

plaintiffs filed A.S.No.77 of 2006 before the Sub Court, Kuzhithurai. By

the impugned judgment and decree dated 31.03.2009, the appeal was

dismissed. Challenging the same, the second appeal came to be filed. The

second appeal was admitted on the following substantial question of law:-

“1. Whether the right of redemption on the part of

Ramakrishnan Nadar, the propositus of the plaintiffs got

extinguished by virtue of Ex.B12-the copy of the affidavit filed by

Ramakrishnan in E.P.No.340 of 1977 in O.S.No.1153 of 1969 and

consequent delivery of the item Nos. 7 and 13 referred to in the

decree in O.S.No.1153 of 1969?

2. Whether there is any perversity or illegality in the judgment

and decrees of both the Courts below? ”

6. The learned counsel appearing for the appellants submitted that it

is beyond dispute that by way of two sale deeds namely Ex.B1 dated

14.06.1968 and Ex.B3 dated 16.11.1968, Ramakrishnan Nadar has sold https://www.mhc.tn.gov.in/judis

S.A.(MD)No.59 of 2010

only 10 cents of land in favour of Thankayyan Nadar. It cannot be the case

of the defendants that Ex.B1 and Ex.B3 conveyed more than 10 cents of

land. As on date, as per the final decree passed in O.S.No.1153 of 1969,

Ramakrishnan was allotted 14.64 cents of land. Therefore, anything that is

presently in the possession of the defendants over and above 10 cents of

land can only be said to be a mortgaged property. “Once a mortgage is

always a mortgage” is a well settled principle. The defendants cannot

obviously plead limitation as defence. Therefore, the plaintiffs are entitled

to redeem whatever is in excess of 10 cents of land.

7. The learned counsel would submit that as per the Transfer of

Property Act, property can be conveyed either by sale or by relinquishment

but only in the mode prescribed by law. The defendants cannot take

advantage of any affidavit filed by the original plaintiff in the final decree

proceedings. He called upon this Court to answer both the substantial

questions of law in favour of the appellants and set aside the impugned

judgment and decree and decree the suit as prayed for.

8. Per contra, the learned counsel appearing for the respondents

submitted that the impugned judgment and decree does not call for any

interference.

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S.A.(MD)No.59 of 2010

9. I carefully considered the rival contentions and went through the

evidence on record. No doubt, the original plaintiff had sold only 10 cents

of land in favour of Thankian vide Ex.B1 and Ex.B3. It is equally true that

the original plaintiff Ramakrishnan eventually got 14.64 cents in the final

decree proceedings in O.S.No.1153 of 1969 on the file of the District

Munsif Court, Kuzhithurai. But the question is whether the present suit for

partition and redemption is maintainable. Though the appellant's counsel

had built up a formidable case, I am afraid that I cannot accept the same and

allow this appeal. As rightly pointed out by the learned counsel appearing

for the respondents, what is now sought to be redeemed were items that

were specifically allotted to Thankian in the final decree proceedings.

The affidavit filed by Ramakrishnan on 22.07.1967 in the final decree

proceedings in O.S.No.1153 of 1969 on the file of the District Munsif

Court, Kuzhithurai has been placed before me. Ramakrishnan had in clear

and categorical terms stated that items 7 and 13 can be allotted to the 13th

defendant namely Thankian. After purchase under Ex.B1 and Ex.B3,

Thankian was also impleaded as 13th defendant in the final decree

proceedings. Since Ramakrishnan had categorically stated that these two

items can be allotted to 13th respondent, delivery was also accordingly

effected under Ex.B13. The defendants have been in possession and

enjoyment of the property which were handed over to them under delivery https://www.mhc.tn.gov.in/judis

S.A.(MD)No.59 of 2010

receipt Ex.B13. That is duly evidenced by Ex.B14 to Ex.B24 also.

Ramakrishnan was content to retain the third item alone. The third item

measures half cent of land. When based on the effective statement made by

Ramakrishnan in the form of solemn affidavit the Court had allotted the

properties in the final decree, the same cannot be one again re-agitated.

Matters that have been finally adjudicated cannot be unsettled. The present

proceedings clearly suffer from the vice of re-litigation.

10. The learned counsel appearing for the appellants would construe

the aforesaid affidavit as saying that Ramakrishnan only consented for

allotment of what was sold by him in favour of Thankian vide Ex.B1 and

Ex.B3. I do not agree. Of-course, in the affidavit, the sale deeds executed

by him are referred to. The net result of the said affidavit is that these two

items namely Item 7 and Item 13 were to be allotted to Thankian / 13th

respondent. Having done so, the plaintiffs cannot wriggle out the

consequences flowing therefrom. The final decree proceedings stand on

different footing altogether. It is beyond dispute that though Ramakrishnan

eventually got only 14.64 cents, he had executed the mortgage for an extent

that was beyond his entitlement. We are talking of the year 1969.

The mortgage money received by Ramakrishnan was admittedly Rs.1000/-.

Of-course, the defendant would claim that Rs.2,200/- was the mortgage https://www.mhc.tn.gov.in/judis

S.A.(MD)No.59 of 2010

money. We need not enter into the said controversy. If Chellamma had

enforced the said mortgage, she would have got 14 cents. Therefore, this

equitable aspect should also be borne in mind. That is why, Ramakrishnan

agreed that item 7 and item 13 in the suit schedule can go to Thankiann and

fairly made such concession in the form of an affidavit. Ramakrishnan

became greedy 21 years later. That is the reason for filing the present suit.

The Courts below have correctly non-suited the plaintiffs. The impugned

judgment and decree do not warrant interference. The substantial questions

of law are answered against the appellant. The second appeal is dismissed.

No costs.

16.07.2021

Internet : Yes/No Index : Yes/No rmi

To

1.The Sub Court, Kuzhithurai .

2.The second Additional District Munsif Court, Kuzhithurai.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

S.A.(MD)No.59 of 2010

G.R.SWAMINATHAN.J.,

rmi

Judgment made in S.A.(MD)No.59 of 2010

16.07.2021

https://www.mhc.tn.gov.in/judis