Madras High Court
S.Chitravelu (Died) vs S.Rathinam on 27 July, 2021
S.A.(MD)No.996 of 2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.996 of 2007
and
M.P.(MD)No.1 of 2007
1.S.Chitravelu (Died)
2.C.Parimala
3.C.Umarani
4.C.Ajitha
5.Deepa ... Appellants
(A3 to A5 are brought on record as LRs of
the deceased 1st appellant vide order dated
27.09.2019 made in C.M.P.(MD)No.12399
of 2018 in S.A.(MD)No.996 of 2007 by
JNBJ)
Vs.
S.Rathinam ... Respondent
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree passed in A.S.No.1 of 2007 dated 27.07.2007
on the file of the Subordinate Court, Ramanathapuram, reversing and setting
aside the judgment and decree passed in O.S.No.62 of 1997 dated 10.10.2006,
on the file of the District Munsif Cum Judicial Magistrate, Thiruvadani.
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S.A.(MD)No.996 of 2007
For Appellants : Mr.S.A.Ajmal Khan
For Mr.K.Sulthan Allowdin for A2
Mr.S.A.Ajmal Khan for A3 to A5
For Respondent : Mr.R.Vijayakumar
JUDGEMENT
The defendants in O.S.No.62 of 1997 on the file of the District Munsif
Court, Thiruvadani are the appellants in this second appeal. During the
pendency of this second appeal, the first appellant/Chitravelu passed away and
his daughters have come on record. The suit was filed for partition. The
plaintiff/Rathinam and the first defendant/Chitravelu are the brothers, being the
sons of Sundarakone and the second defendant/Parimala is the wife of the first
defendant. The case of the plaintiff is that the suit items that are six in number
are joint family properties and that the plaintiff is entitled to half share in them.
The defendants filed written statement controverting the plaint averments.
According to the defendants, suit items 1 to 3 are the self acquired properties of
Sundarakone and that they had already been sold in favour of the second
defendant for valuable consideration vide sale deed dated 05.07.1995 (Ex.B7).
Based on the rival pleadings, the trial court framed the necessary issues.
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S.A.(MD)No.996 of 2007
2.The plaintiff examined himself as P.W.1 and four others as P.W.2 to
P.W.5. On his side, Exs.A1 to A12 were marked. The first defendant examined
himself as D.W.1 and two others as D.W.2 and D.W.3 and Exs.B1 to B17 were
marked.
3.By judgment and decree dated 10.10.2006, the trial court held that the
plaintiff is entitled to half share in items 4 to 6 and dismissed the suit as regards
items 1 to 3. Challenging the same, the plaintiff filed A.S.No.1 of 2007 before
the Sub Court, Ramanathapuram. By the impugned judgment and decree dated
27.07.2007, the first appellate court allowed the appeal and held that the
plaintiff was entitled to half share in items 1 to 3 also. Challenging the same,
this second appeal came to be filed.
4.The second appeal was admitted on the following substantial questions
of law:-
“a) Whether the lower appellate court has committed an
error in law in not rendering any finding regarding the plea
that items 1 to 3 of the suit properties were self-acquisitions of
Sundarakone?
b) Whether the lower appellate court has rendered a
perverse finding regarding the validity of Ex.B7 disregarding
the admission made by P.Ws.2 to 4?
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S.A.(MD)No.996 of 2007
c) Whether the lower appellate court has committed an
error in declaring Ex.B7 to be void in the absence of sufficient
evidence on the side of the plaintiff to prove the vitiating
factors?”
5.The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this Court
to answer the substantial questions of law in favour of the appellants and allow
this second appeal by setting aside the impugned judgment and decree passed
by the first appellate court.
6.Per contra, the learned counsel appearing for the respondent submitted
that the impugned judgment does not call for any interference.
7.I carefully considered the rival contentions and went through the
evidence on record.
8.The learned counsel for the appellants submitted that Sundarakone
passed away on 25.09.1995 leaving behind two sons namely., Rathinam and
Chitravelu and three daughters namely., Kaliammal, Ponnalagu and Vasantha
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S.A.(MD)No.996 of 2007
and one of the daughters had passed away and she left behind legal heirs. But
the plaintiff did not add the other legal heirs of Sundarakone. Therefore,
according to him, the suit ought to have been dismissed for non-joinder of
necessary parties. I am unable to accept this contention, because as rightly
pointed out by the learned counsel for the respondent, this plea was not raised
before the Court below. Of course in a suit for partition, all the necessary
parties will have to impleaded but then, having failed to raise this contention
before the Court below, it is not open to the defendants to raise this contention
in the second appeal.
9.The learned counsel for the appellants would submit that the scope of
the second appeal is confined only to items 1 to 3. 6th item had also been
partitioned between the two brothers and nothing survives for further
consideration. He also did not dispute that the plaintiff is entitled to half share
in items 4 and 5. That leaves us only with the items 1 to 3. According to the
appellants, items 1 to 3 were alienated in favour of the second
defendant/Parimala vide Ex.B7/sale deed dated 05.07.1995. Inasmuch as, the
plaintiff failed to challenge Ex.B7/sale deed, the suit has to necessarily fail in
respect of items1 to 3.
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S.A.(MD)No.996 of 2007
10.The question that first arises for consideration is whether the plaintiff
should have asked for the relief of declaration in respect of Ex.B7. As rightly
pointed out by the learned counsel for the respondent, since the plaintiff is not
a party to Ex.B7, he is entitled to ignore the same and maintain a prayer for
partition. The learned counsel for the respondent placed reliance on the
decision reported in 1970 (1) MLJ 207 (Kaka Hajee Md. Ishaque Sahib Vs.
Kaka Md. Saddiq Sahib and Ors). In the said decision, it has been held as
follows:-
“9. The law on the subject of cancellation of instruments is thus
fairly clear. Normally a transaction will bind a person if he or persons
under whom he derives title are eo nomine parties to the same, and
must be set aside before any relief is claimed thereunder. This,
however, is subject to two important, exceptions : (1) Where the
transaction is only a sham and nominal one, not intended to be given
effect to; and (2) Where the transaction is void in law. It necessarily
follows that (1) transactions to which a person or persons under whom
the said persons derive title are not eo nomine parties; (2) transactions
which are challenged as sham and nominal and (3) transactions which
are void ab initio are not legally binding in character need not be
cancelled and set aside, before any claim is made thereunder. The
reason is fairly obvious. In the first group of cases, there can be no
difficulty, as it is an elementary principle of law that transactions to
which a person or persons under whom the said person derives title
are not parties cannot bind them. In the case of sham and nominal or
void transactions comprised in the second and third group of cases,
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S.A.(MD)No.996 of 2007
title has not passed to the transferees. Prayer for setting aside such
transactions will be superfluous and the plaintiff will be entitled to
ignore them altogether. The case is otherwise in respect of voidable
transactions and benami transactions. In such cases the law will
uphold the ostensible title conferred by those instruments; and the said
title will prevail until the transactions are challenged with success by
seeking appropriate reliefs declaratory or otherwise in Court of law.”
11.Applying the aforesaid ratio, I sustain the contention of the learned
counsel for the respondent that it is certainly open to the plaintiff to ignore
Ex.B7/sale deed and maintain the instant suit for partition. But then, as rightly
contended by the learned counsel for the respondent, when the defendants take
shelter behind Ex.B7/sale deed and the plaintiff wants this Court to ignore the
same as a void document, then proper foundation should have been laid in the
pleadings. It is one thing to say that the plaintiff can ignore alienation and need
not seek to set aside the same. But then, with the leave of the Court, the
plaintiff ought to have filed a reply statement setting out the circumstances as
to why Ex.B7 has to be ignored as a void document. Before this Court, the
learned counsel for the respondent took me at length through the deposition of
D.W.1 to canvass his contention that no consideration actually passed under
Ex.B7/sale deed. But then, these are only arguments made across the bar, of
course on the strength of the evidence but pleadings are wholly absent. If only
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S.A.(MD)No.996 of 2007
the plaintiff had a reply statement after getting leave from the trial court and
there are sufficient pleadings for attacking the validity of Ex.B7, then I would
have been able to appreciate the contentions now urged before me by the
learned counsel appearing for the respondent. As rightly pointed out by the
learned counsel for the appellants, the trial court did not even frame an issue as
regards the validity of Ex.B7. The defendants could not have been taken by
surprise, when they were in the witness box.
12.I wanted to know if items 1 to 3 are the self acquired properties of
Sundarakone or they are the joint family properties. My attention is drawn to
the other alienations made by Sundarakone earlier in favour of the wife of the
plaintiff. Ex.B2 dated 09.06.1977 is the sale deed executed by Sundarakone in
favour of Damayanthi, wife of the plaintiff/Rathinam. In respect of Ex.B2, a
rectification deed was also executed vide Ex.B1. Thus, it has been
demonstrated that Sundarakone had been dealing with the properties that stood
in his name. When a sale deed was executed in favour of his wife, the plaintiff
found it a welcome development but when a sale was deed executed in favour
of his brother's wife, the plaintiff found it unacceptable. This is a clear case of
double standards. I would have still accepted the plaintiff's contention, if there
are pleadings to show that Sundarakone was not in a proper frame of mind
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S.A.(MD)No.996 of 2007
when he executed Ex.B7. The attestors of Ex.B7 were examined by the
plaintiff himself. Of course, the learned counsel for the respondent would draw
my attention to those portions of the testimony, which say that Sundarakone
was not in the pink of health. Not being in good physical condition is one
thing but not in a position to execute a document is another. There is neither
pleading nor evidence in support of such a contention. Therefore, I have to
necessarily uphold Ex.B7. The trial court was justified in declining to grant
decree in respect of items 1 to 3. The first appellate court did not take note of
these aspects. The substantial questions of law are answered in favour of the
appellants. The impugned judgment and decree passed by the first appellate
court is set aside and the judgment and decree passed by the trial court is
restored. The second appeal is allowed. No costs. Consequently, connected
miscellaneous petition is closed.
27.07.2021
Index : Yes / No
Internet : Yes/ No
ias
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.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.996 of 2007
G.R.SWAMINATHAN, J.
ias
To:
1.The Subordinate Court,
Ramanathapuram.
2.The District Munsif Cum Judicial Magistrate,
Thiruvadani.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
S.A.(MD)No.996 of 2007
27.07.2021
https://www.mhc.tn.gov.in/judis/
