Madras High Court
Senathi K.Lakshmanan Narayana ... vs R.Shenbagavalli on 22 July, 2021
A.S.No.372 of 1998
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
A.S.No.372 of 1998
and
M.P.No.8959 of 1998
Senathi K.Lakshmanan Narayana Iyer (died)
2.S.L.Sivaji
(A2 is brought on record vide Court order
dated 12.02.2021)
... 2nd Defendant / Appellant
-Vs-
1.R.Shenbagavalli
2.R.Sreedevi
3.R.Senthilkumar ... Plaintiffs
4.K.Ramamurthy ... 1st Defendant / Respondents
PRAYER: Appeal Suit filed under Section 96 of the Civil Procedure Code,
against the judgment and decree of the Court of Subordinate Judge,
Ramanathapuram in O.S.No.53 of 1995, dated 30.09.1997 in decreeing the
suit for partition and in declaring the sale deed is null and void.
For Appellant : Mr.S.Ramesh
For R1 : No appearance
For R2 & R3 : Mr.ARM.Ramesh
for Mr.Ramadurai
For R4 : No appearance
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A.S.No.372 of 1998
JUDGMENT
This appeal is directed against the judgment and decree dated
30.09.1997 made in O.S.No.53 of 1995 on the file of the Sub Court,
Ramanathapuram. The contesting defendant in the said suit filed this
appeal. During the pendency of the appeal, the original appellant passed
away and his son came on record to prosecute the appeal.
2.O.S.No.53 of 1995 was filed by the respondents 1 to 3 herein
seeking partition, and other reliefs. The case of the plaintiffs was as
follows:-
The first defendant K.Ramamurthy got married to one Vasantha
through whom the plaintiffs were born; The first and second plaintiffs
were unmarried daughters at the time of filing the suit. The third
plaintiff was their minor son; Since the second and third plaintiffs
were minors, they were represented by their mother and next friend
Vasantha, they were undivided co-parceners qua the first defendant /
their father having right by birth in the suit property. Their father was
given to immoral way of living. As early as on 09.06.1986, a family
arrangement was executed and the first defendant had given up his
rights in the suit property and declared that it would be in the
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A.S.No.372 of 1998
exclusive enjoyment of the plaintiffs; Whileso, the original appellant
herein / D2 purchased the suit property under sale deed dated
04.02.1989 from the first defendant.
3.The case of the plaintiffs is that the said sale transaction will not
affect their 3/4th undivided share in the suit property. They moved the Court
for passing a preliminary decree for partition of their 3/4th share and also
for setting aside the sale deed dated 04.02.1989 executed by the first
defendant in favour of the second defendant.
4.The first defendant remained exparte. The second defendant /
purchaser filed written statement controverting the plaint averments and
opposing the suit claim. According to the second defendant, the first
defendant after executing the suit sale deed remained in possession of the
suit property as a tenant. He agreed to pay monthly rent. He even entered
into rental deed dated 24.09.1989. Since he committed default, the second
defendant had to initiate the eviction proceedings by filing R.C.O.P.
R.C.O.P was allowed and in order to wriggle out the consequences arising
out of the eviction proceedings, he set up the plaintiffs to file a suit. A host
of other pleas were taken in the written statement such as bar of limitation.
The first plaintiff Shenbagavalli examined herself as P.W.1. Two other
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A.S.No.372 of 1998
witnesses were examined on the side of the plaintiffs and Ex.A1 to Ex.A7
were marked. The second defendant examined himself as D.W.1 and one
Sundarrajan was examined as D.W.2. Ex.B1 to Ex.B18 were marked. After
consideration of the evidence on either side, by the impugned judgment and
decree, a preliminary decree was passed allotting 3/4th share in favour of the
plaintiffs and the suit sale deed was also cancelled. Questioning the same,
this appeal came to be filed.
5.The points that arise for determination in this appeal are as
follows:-
(1)Whether the trial Court was right in granting preliminary decree
and allotting 3/4th share in the suit property in favour of the plaintiffs?
(2)Whether the trial Court was right in granting the relief of
declaration that Ex.B1-sale deed dated 04.02.1989 is null and void ?
6. The learned counsel appearing for the appellant submitted that the
first defendant Ramamurthy was the karta of the family. He was therefore
entitled to alienate the joint family properties for necessity. The plaintiffs
have made false allegation that the first defendant was leading an immoral
life. This allegation has not at all been substantiated. The best person to
speak about the conduct of the husband would be his wife. The second and
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A.S.No.372 of 1998
third defendants were very much represented by their mother. Vasantha did
not enter the witness box. Failure to examine Vasantha as witness is fatal
to the case of the plaintiff.
7. The learned counsel would point out that the sale deed was
executed on 04.02.1989. Though it was registered on 25.05.1989, the effect
of registration relates back to the date of execution. It is not in dispute that
on 04.02.1989, the unmarried daughter did not have any right in the suit
property, If at all, the minor son alone had a right, but then, he was shown
as co-nominee party in the suit sale deed. The sale was executed not only
on behalf of the first defendant, but also on behalf of the minor son. The
appellant is a bonafide purchaser for value. The plaintiffs cannot question
the impugned alienation because it had taken place prior to the
promulgation of The Tamil Nadu Act 1 of 1990. The plaintiffs 1 and 2
cannot claim any benefit under Vineeta Sharma case (2020) 9 SCC 1,
because alienations made prior to the amendment made by the Central Act
39 of 2005 were also specifically saved. In this case, the alienation was
made by D1 in his capacity as karta for the welfare of the family and
therefore, the alienation is valid and binding on the third plaintiff also. The
learned counsel for the appellant strongly submitted that the trial Court has
failed to take note of the aforesaid legal and factual aspects and called upon
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A.S.No.372 of 1998
this Court to reverse the impugned judgment and decree. The learned
counsel would state that Ex.A1 is inadmissible in evidence. This is because
on perusal of the terms of Ex.A1 would show that D1 had relinquished his
share in the suit property and therefore, it was compulsorily registrable.
Since it has not been registered, the same could not have been received in
evidence. The learned counsel placed reliance on the decision reported in
(2019) 6 SCC 399 (Rengan Ambalam and another Vs. Sheik Dawood and
others).
8.Per contra, the learned counsel appearing for the contesting
respondents / plaintiffs submitted that the impugned judgment and decree
do not call for any interference. The learned counsel took me through the
Vineeta Sharma judgment and pointed out that the daughters acquire right
in the coparcenary property by virtue of their birth. In the case on hand,
both the daughters/ plaintiffs 1 and 2 was born prior to the suit alienation.
They had not been married, when the Tamil Nadu Act 1 of 1990 came into
force. It is true that Tamil Nadu Act 1 of 1990 came into force on
25.03.1989. It is also true that the impugned Ex.B1-sale deed had
apparently been executed on 04.02.1989 itself. But then, the learned
counsel for the respondents would compare the language of the saving
clause in the Tamil Nadu Act 1 of 1989 with the saving clause in the Central
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A.S.No.372 of 1998
Act 39 of 2005. While the amendment made to Section 6(1) of Hindu
Succession Act, under the central Act 39 of 2005 saves disposition or
alienation or partition or testamentary disposition that had taken place
before 20.12.2004, Section 3 of the Hindu Succession (Tamil Nadu
Amendment) Act, 1989, (Act No.01 of 1990) saves only partition in respect
of coparcenary property of a Joint Hindu Family that had been effected
prior to 25.03.1989. In other words, the other modes of alienations have
not been saved. Therefore, the contention of the learned counsel appearing
for the contesting respondents is that since the proviso to The Tamil Nadu
Act 1 of 1990 saves only, and not a prior sale, the daughters of the first
defendant namely the plaintiffs 1 and 2 are entitled to half share in the suit
property in the light of the enabling proviso under Tamil Nadu Act 1 of
1990 as interpreted in Vineeta Sharma case (2020) 9 SCC 1 .
9.Coming to the rights of the minor son, the learned counsel
appearing for the respondents would point out that the suit transaction on
the face of it appears to be very shady. The original sale deed has been
marked as Ex.B1 by the second defendant. It can be seen from there that
the stamp papers were purchased in different months in the year 1987. The
registration also had taken place only in May 1989.
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A.S.No.372 of 1998
10.The learned counsel would suggest that the entire transaction
appears to have been backdated to avoid the consequences of The Tamil
Nadu Act 1 of 1990. The second and third plaintiffs were minor children
and they were represented by their mother / wife of the first defendant.
Serious allegations had come directly from her. Since the first defendant did
not enter the witness box, they cannot be brushed aside. The suit property
was not purchased by the first defendant. It was allotted to him in a family
partition that took place in the year 1956. Therefore, the second defendant
who knew the character of the property ought to have made proper enquiry.
The Court below after a detailed consideration of the evidence on record,
had held that Ex.B1-sale deed is not valid and is not binding on the joint
family. The learned counsel called upon this Court to sustain the impugned
judgment and dismiss this appeal.
11.I carefully considered the rival contentions and went through the
evidence on record. The plaintiffs 1 and 2 are the daughters of the first
defendant. Their marriage took place subsequent to coming into force of the
Tamil nadu Act, 1 of 1990. Though the savings clause incorporated in the
said Act saves only prior registered partitions, obviously prior alienations
cannot be unsettled. The suit sale deed was registered only on 25.05.1989
but it reads as if it was executed on 04.02.1989. The Tamil Nadu Act of
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A.S.No.372 of 1998
1989 came into force on 25.03.1989 itself. It is true that a registered
document will take effect from the date of execution and not from the date
of registration. The specific allegation of the plaintiffs was that the
document had been back dated. The trial court found this allegation to be
true. The stamp papers had been purchased on different dates in the year
1987. There is no explanation for not registering the document immediately
after the execution. Obviously there was some financial transaction between
the original appellant and the first defendant. Since the Tamil Nadu Act 1 of
1990 had come into force, the original appellant must have obtained the suit
sale deed by back dating the same from the first defendant. I therefore come
to the conclusion that the sale deed will take effect only from the date of
registration that is 25.05.1989. The sale deed cannot be invalidated in toto.
The first defendant did not enter the witness box to challenge the sale deed.
Therefore the sale deed is valid as far as the first defendant is concerned. It
cannot however bind the unmarried daughters. The trial court had given
solid reasons for holding that the alienation was not for family necessity.
The property in question was allotted to the first defendant in a family
partition in the year 1956. The specific allegation in the plaint is that the
first defendant led an immoral life. It must be noted that plaintiffs 2 and 3
were represented by their mother. Even though she did not enter the witness
box, the first plaintiff examined herself. The character of the first defendant
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A.S.No.372 of 1998
is also evident from the fact that he had earlier executed relinquishment
deed. Though it is not a registered document, it can be looked into for a
collateral purpose of deciding as to whether the plaint allegation regarding
the conduct of the first defendant is true. After a careful re-appreciation of
the entire evidence on record, I concur with the finding of the trial court
that the suit alienation was not for family necessity. Therefore the third
plaintiff is also not affected. Since, I held that the alienation will stand as
regards the first defendant, the impugned judgment and decree passed by
the trial court is modified. The sale deed is valid as regards the 1/4th share
of the first defendant over the suit property. Preliminary decree is passed
declaring that the plaintiffs have the 3/4th share in the suit property. Except
holding that the suit sale deed is valid and that it binds the first defendant
inso far as his share is concerned, in all other respects, the impugned
judgment and decree are confirmed. This appeal is partly allowed. No costs.
22.07.2021
Internet : Yes/No
Index : Yes/No
rmi/skm
https://www.mhc.tn.gov.in/judis
A.S.No.372 of 1998
To
1.The Subordinate Court, Ramanathapuram.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
A.S.No.372 of 1998
G.R.SWAMINATHAN, J.
rmi/skm
Judgment made in
A.S.No.372 of 1998
and
M.P.No.8959 of 1998
22.07.2021
https://www.mhc.tn.gov.in/judis
