Madras High Court
Sathiah vs S.Sobana on 23 July, 2021
S.A.(MD)No.816 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 23.07.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.816 of 2010
and
M.P.(MD)No.1 of 2010
Sathiah ... Appellant / 1st Respondent / Plaintiff
-Vs-
1.S.Sobana ... Respondent / Appellant / 3rd Defendant
2.S.Thangapandian
3.T.Ramasamy ... Respondent / 2nd and 3rd Respondents /
1st Defendant & 2nd Defendant
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 31.03.2010 made in A.S.No.36
of 2009 on the file of the Sub Court, Sivagangai reversing the judgment and
decree dated 15.04.2008 made in O.S.No.11 of 2006 on the file of the
District Munsif Court cum Judicial Magistrate Court, Thiruppathur.
For Appellant : Mr.R.Vijayakumar
For R1 : Mr.S.Madhavan
For R2 : given up
For R3 : no appearance
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S.A.(MD)No.816 of 2010
JUDGMENT
The plaintiff in O.S.No.11 of 2006 on the file of the District Munsif
Court, Tirupathur is the appellant in this second appeal.
2. The suit was for partition. The case of the plaintiff is that the suit
property measuring 13 cents is the joint family property belonging to the
father Thangasamy and his three sons namely Muthukaruppan, Ramasamy
and Sathiah / Plaintiff. In the year 1984, the suit property was sold by the
father Thangasamy and the two older sons namely Muthukaruppan and
Ramasamy vide Ex.B3, dated 13.02.1984. The grievance of the plaintiff is
that he was not even shown as a eo nominee party in the sale deed.
Asserting his 1/4th right in the suit property, he filed the said suit for
partition. By then, the father Thangasamy as well as the older son
Muthukaruppan had passed away. The son of Muthukaruppan was shown
as the first defendant, while Ramasamy was shown as the second defendant.
The purchaser under Ex.B3-sale deed was shown as the third defendant.
The second defendant Ramasamy filed his written statement and also
deposed in support of the purchaser / D3. The trial Court vide judgment
and decree dated 15.04.2009 allotted 1/4th share in favour of the plaintiff.
Challenging the same, the purchaser / D3 filed A.S.No.36 of 2009 before
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S.A.(MD)No.816 of 2010
the Sub court, Sivagangai. The first Appellate Court, by the impugned
judgment dated 31.03.2010, reversed the decision of the trial Court and
dismissed the suit. Aggrieved by the same, this second appeal came to be
filed. Though the second appeal is of the year 2010, till date it has not
been admitted.
3. The learned counsel appearing for the appellant reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to admit this appeal after framing the substantial questions of law and
thereafter, take it up 'for final disposal'.
4. Per contra, the learned counsel appearing for the respondents
submitted that no substantial question of law arises for determination.
While there may be no dispute that the plaintiff Sathiah also had 1/4th
undivided share in the suit property, the fact remains that during the
relevant time, he was a minor. The specific stand of the purchaser is that
the suit property was sold for family necessity. The plaintiff was then
pursuing education abroad. It is well settled that kartha of the joint family
can very well alienate the joint family property for family necessity even
without joining the minor as eo-nominee party. If the minor is shown as eo-
nominee party, then it is incumbent on the minor to formally challenge the
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S.A.(MD)No.816 of 2010
same. If the minor is not shown as eo-nominee party, then, he can straight
away maintain the suit for partition. The maintainability of the suit may not
be in question. But then, the suit must have been filed within time. It is not
in dispute that the plaintiff returned to India in the year 1988. The suit
came to be filed only in the year 2006.
5. The learned counsel appearing for the respondent / purchaser / D3
rightly pointed out that after purchasing vide Ex.B3, a full-fledged nursing
home has been put up and the plaintiff cannot feign ignorance of the same.
The first appellate Court, therefore, rightly invoked Article 109 of the
Limitation Act, 1963 to non-suit the plaintiff. Article 109 of the Limitation
Act states that the suit by a Hindu governed by Mitakshara law to set aside
his father's alienation of ancestral property must be filed within twelve
years, when the alienee takes possession of the property.
6. In the case on hand, there is a abundant evidence to show that
alienee took possession of the suit property in the year 1984 itself. The
purchaser had marked Ex.B4, dated 16.02.1984 which is a copy of the patta
transfer order. Ex.B7, dated 09.05.1985 is the copy of the building plan
approval in terms of which the nursing home had also been put up. Thus, it
has been conclusively established that alienee / purchaser took possession
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S.A.(MD)No.816 of 2010
of the suit property in the year 1984 itself. If at all, the plaintiff could have
filed the suit for partition before 1996. Even then, the purchaser could have
definitely take an effective defence plea that the sale by the Kartha was due
to family necessity. Even if I assume that the purchaser had no defence,
still the suit is hopelessly barred by limitation. The first appellate Court had
correctly approached the issues. I sustain the contention of the learned
counsel appearing for the respondents. No substantial question of law has
really arisen for determination. Yet, the purchaser/D3 had magnanimously
offered to pay a sum of Rs.1,10,000/- to the appellant.
7. Thiru.S.Mathavan, the learned counsel for the respondents informs
the Court that he will ensure that this undertaking given by the respondent
as a gesture of goodwill will be complied with.
8. The second appeal is dismissed. No costs. Consequently,
connected miscellaneous petition is closed.
23.07.2021
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.816 of 2010
G.R.SWAMINATHAN.J.,
rmi
To
1.The Sub Court, Sivagangai.
2.The District Munsif Court cum Judicial Magistrate Court, Thiruppathur.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
Judgment made in
S.A.(MD)No.816 of 2010
and
M.P.(MD)No.1 of 2010
23.07.2021
https://www.mhc.tn.gov.in/judis/
