Madras High Court
T.Gopalsamy vs Kunjarathammal (Died) on 29 June, 2021
S.A.No.461 of 2004
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.06.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.No.461 of 2004
and
C.M.P.Nos.1370 to 1372 of 2005
1.T.Gopalsamy
2.Radhakrishnan
3.Nagathal(died)
4.Jayaram
5.Kalyanaram
6.Seetharam
7.Deenadhayalan
8.Elango Manivannan
9.Manikandan
10.Rajammal (Died)
Appellant No. 10 brought on record
as legal heirs of the deceased
third appellant vide order
dated 25.11.2009 made in
M.P.No.1 of 2006. ... Plaintiffs/Respondents/Appellants
-Vs-
1.Kunjarathammal (Died)
2.Balakrishnan
3.Shanmuganathan ... Defendants/Appellants/Respondents
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S.A.No.461 of 2004
4.The Sub Registrar,
Chathrakudi,
Paramakudi Taluk,
Ramanathapuram District.
5.The District Registrar,
Sivagangai,
Sivagangai Nagar,
Sivagangai District.
6.Thirumalram
7.Shenbagaram
8.Jeyalakshmi (Died)
(Respondent No.8 brought on record
as legal heirs of the deceased R1, vide order
dated 25.11.2009 made in M.P.No.1 of 2009)
9.Amirtha Gowri
10.Bhavani
11.Jeyanthi (Died)
12.Senthamil Selvi
13.Palanivel Rajan
(R9 to R13 are brought on record as legal heirs
of the deceased 10th appellant as per order dated 12.10.2018 in
C.M.P.(MD)No.4415/18)
14.Bala Namachivayam
15.B.Senthilkumar
16.Thirumal Alagu @ Sangavi
(R14 to R16 are brought on record
as legal heirs of the deceased 8th respondent
as per order dated 31.08.2018 in C.M.P.(MD)Nos.4413 & 4414/18)
...Respondents/Respondents/Plaintiffs
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S.A.No.461 of 2004
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the Judgment and Decree of the Subordinate Court at
Paramakudi, dated 30.11.2004 in A.S.No.28 of 2003, reversing the
Judgment and decree of the District Munsif Court at Paramakudi, dated
10.01.2003 in O.S.No.29 of 2000.
For Appellants : Mr.S.Parthasarathy
Senior Counsel
for Mr.K.Govindarajan
For R1, R8 & R11 : Died
For R2 & R14 to R16 : Mr.S.Ramesh
for Mr.V.Raghavachari
For R3 : No appearance
For R4 & R5 : Mr.R.Ragavendran
Government Advocate
For R6 : Mr.T.V.Sivakumar
For R7, R9, R10,
R12 & R13 : No appearance
JUDGMENT
The plaintiffs in O.S.No.29 of 2000 on the file of the District Munsif
Court, Paramakudi, are the appellants in this second appeal.
2.The suit was filed seeking the relief of declaration and permanent
injunction. The suit schedule comprises 93 items. According to the
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S.A.No.461 of 2004
plaintiffs, except Item No.1, the other items belonged to one Thirumal Pillai
(for the sake of convenience, he is referred to as senior Thirumal Pillai).
For easy understanding of the facts, the genealogical tree is set out as
follows:-
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S.A.No.461 of 2004
3.There is no dispute that the elder son Pilaiporukumpillai passed
away on 12.03.1951 and the younger son Ladasamy passed away earlier.
Ladasamy had a son by name Thirumal Pillai. Ladasamy's son Thirumal
Pillai(junior Thirumal Pillai) passed away in the year 1950. Thirumal Pillai
had two wives namely Muthuvellammal and Kunjarathammal.
Pilaiporukumpillai had a son by name Thangasamypillai. According to the
plaintiffs, the senior Thirumal Pillai had left behind a number of properties.
In order to maintain family peace and good will, Thangasamy Pillai
executed a deed of settlement dated 27.09.1951-Ex.A45 whereunder
Muthuvellammal and Kunjarathammal were given 22 items of ancestral
properties absolutely. On the same day, Muthuvellammal and
Kunjarathammal executed a deed of release Ex.A3. The deed of release
executed by Muthuvellammal and Kunjarathammal contains schedule A and
Schedule B. While Schedule A contains 22 items settled in their favour by
Thangasamy Pillai, Schedule B contains 181 items, in which, they
relinquished their rights and interests. The present suit schedule items 2 to
93 correspond to the B Schedule properties of the aforesaid release deed
dated 27.09.1951. Muthuvellammal passed away on 23.11.1993.
Thangasamy Pillai passed away on 16.7.1997. Following the demise of
Thangasamy Pillai, there was a family arrangement in respect of the suit
schedule properties. Ladasamy also had a daughter by name Ramuammal.
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S.A.No.461 of 2004
The second defendant Balakrishnan and the third defendant
Shanmuganathan are the grand sons of the said Ramuammal. According to
the plaintiffs, the said defendants Balakrishnan and Shanmuganathan have
been staking unlawful claims on the suit schedule properties. They also
appear to have illegally alienated some of the suit schedule properties. That
necessitated filling of the suit seeking the relief of declaration and
injunction.
4.The contesting defendants namely D1 to D3 filed their written
statement denying the suit claim. While admitting that the suit properties
are ancestral properties belonging to Pilaiporukumpillai and his brother
Ladasamy Pillai, the contesting defendants pleaded that the children of
Pilaiporkumpillai and the children of Ladasamy were enjoying the suit
properties in common. They further alleged that since Thangasamy Pillai
was working as village karnam, he managed to create revenue records in
his name. It was further claimed that to escape from the clutches of land
ceiling laws, certain documents were created. The defendants also
questioned the maintainability of the suit. The first plaintiff
Thiru.Gopalsamy examined himself as P.W.1. Ex.A1 to Ex.A44 were
marked. On the side of the defendants, Kunjarathammal examined herself
as D.W.1. The defendants did not adduce any documentary evidence. After
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S.A.No.461 of 2004
a consideration of the evidence on record, the trial Court decreed the suit as
prayed for by judgment and decree dated 10.01.2003. Aggrieved by the
same, the contesting defendants filed A.S.No.28 of 2003 before the Sub
Court, Paramakudi. By judgment and decree dated 30.11.2004, the first
appellate Court set aside the judgment and decree passed by the trial Court
and allowed the appeal and dismissed the suit. Questioning the same, this
second appeal has been filed.
5.The second appeal was admitted on the following substantial
questions of law:-
“1.Is the finding of the learned Subordinate Judge with
reference to valuation of the properties based on no evidence and
against the provisions contained in Section 7 of the T.N.C.F.Act?
2.Whether the judgment of the lower Appellate Court with
reference to Ex.A3-release deed, is based on grounds outside the
pleadings of the defendants ?
3.Whether the judgment of the Lower Appellate Court has failed
to satisfy the provisions of Order 41 Rule 31 of the Code of Civil
Procedure?
4.Whether the plea that Ex.A3 was executed to defeat the
ceiling law is sustainable in law, especially when there was no ceiling
law in Tamil Nadu at the relevant time?”
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S.A.No.461 of 2004
6.Heard the learned Senior Counsel appearing for the appellants and
the learned counsel appearing for the contesting respondents.
7.The learned Senior counsel appearing for the appellants reiterated
all the contentions set out in the memorandum of grounds and submitted
that the substantial questions of law deserve to be answered in favour of the
appellants. He called for restoration of the judgment and decree passed by
the trial Court.
8.Per contra, the learned counsel appearing for the contesting
respondents submitted that the impugned judgment and decree passed by
the first appellate Court does not call for any interference.
9.The learned counsel for the respondents strongly contended that
Ladasamy had a son Thirumal Pillai and a daughter by name Ramu ammal.
Ramu ammal as per the law then prevailing, had a right of maintenance.
According to him, Thangasamy Pillai had transactions only with the
widows of Thirumal Pillai which ignored the legal rights of Ramu ammal.
Since Ramu ammal had the right to maintenance, the same stood enlarged
subsequently. Ramu ammal was entitled to a share in the properties in
question as per the Hindu Law of Inheritance (Amendment) Act, 1929. The
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S.A.No.461 of 2004
learned counsel contended that the deeds of settlement and release executed
and registered on 27.09.1951 cannot bind the legal heirs of Ramu ammal.
He also stated that the suit is bad for non-joinder of parties because it has
ignored the branch of Ramu ammal.
10.I carefully considered the rival contentions and went through the
evidence on record.
11.As rightly pointed out by the learned senior counsel appearing for
the appellant, in Paragraph No.4 of the written statement, the contesting
defendants have admitted that the suit properties are ancestral properties
belonging to Pilaiporukumpillai and Ladasamy Pillai. The respondents
cannot now argue against their own pleadings made in the written
statement. Once it is conceded that the suit items were ancestral properties,
applying the law then holding the field, one must necessarily conclude that
Ramu ammal did not have any right in the properties as such. Even if I
want to assume that Ramu ammal had a right to maintenance and
consequential charge over the properties, there is no evidence that Ramu
ammal was alive as on 27.09.1951. In the absence of pleadings and
evidence, I cannot accept the contention of the learned counsel for the
respondents that Ramu Ammal, possessed some rights that got enlarged and
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S.A.No.461 of 2004
passed down to her descendants. Ex.A45 is the deed executed by
Thangasamy Pillai in favour of Muthuvelammal and Kunjarathammal
settling as many as 22 items of suit properties absolutely in their favour.
Immediately thereafter, Ex.A3-release deed was executed by
Muthuvelammal and Kunjarathammal in favour of Thangasamy Pillai
relinquishing their rights and interests in the schedule B annexed to the
release deed. As already pointed out, the suit schedule properties 2 to 93
directly correspond to the said B Schedule properties. Ex.A3 is a
registered document. The original release deed was marked before the
Court below. Therefore, Section 60 of the Registration Act will come into
play. The said provision reads as under :
“60.Certificate of registration:-
“1.After such of the provisions of Sections 34, 35, 58 and 59 as
apply to any document presented for registration have been complied with
the registering officer shall endorse thereon a certificate containing the
word “registered”, together with the number and page of the book in which
the document has been copied.
2.Such certificate shall be signed, sealed and dated by the
registering officer, and shall then be admissible for the purpose of proving
that the document has been duly registered in manner provided by this Act,
and that the facts mentioned in the endorsement referred to in Section 59
have occurred as therein mentioned.”
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S.A.No.461 of 2004
12.This Court has to necessarily presume that Ex.A3 release deed
was duly registered in the manner provided by the Act and that the facts
mentioned in the endorsement referred to in Section 59 have occurred as
therein mentioned. In case after case, Courts have held that a registered
document has the presumption of validity attached to it. This presumption
has not at all been rebutted by the contesting defendants.
13.That apart, the suit was filed only in the year 2000. The release
deed is of the year 1951. Hence, the presumption set out under Section 90
of the Indian Evidence Act, 1872 will also come into play. In fact, even in
the written statement, there is no serious contest regarding the execution of
Ex.A3 by Muthuvelammal and Kunjarathammal. In view of Section 92 of
the Indian Evidence Act, 1872 Kunjarathammal cannot be permitted to
plead contrary to the terms of Ex.A3. It is also apparent from the evidence
that Ex.A3 has been acted upon. Ex.A44 dated 16.06.1986, is a sale deed
executed by D1-Kunjarathammal in favour of one Sathiah and his brother
Ariyappan. In Ex.A44, the vendor Kunjarathammal traced her title only to
Ex.A45 settlement deed executed by Thangasamy Pillai. Ex.A46 is the
judgment dated 17.12.1999 made in O.S.No.321 of 1994 on the file of the
District Munsif Court, Paramakudi. The said suit was instituted by
Thangasamy Pillai against one Ramu and Ramaiah who had purchased from
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S.A.No.461 of 2004
Kunjarathammal vide sale deed dated 18.06.1987. Kunjarathammal had
deposed as D.W.1 in support of the defendants therein. The trial Court had
given a categorical finding that the settlement deed Ex.A45 was acted upon
by Kunjarathammal. Therefore, it is too late in the day to impeach the
genuineness or validity of Ex.A3 and Ex.A45.
14.The stand of the respondents that those documents were created
for the purpose of escaping from the clutches of ceiling laws cannot be
accepted. One can take judicial notice of the fact that the ceiling laws were
introduced only in the year 1961. Therefore, the said contention advanced
by the learned counsel appearing for the respondents has only to be stated
to be rejected. I answer the fourth substantial question of law in favour of
the appellant. Once it is found that Ex.A3 and Ex.A45 are true and that
they were also acted upon, the case of the respondents will have to be
rejected completely. I must also mention that only Kunjarathammal entered
the witness box and no documentary evidence was marked by the
defendants.
15.On the other hand, the plaintiffs have marked a host of documents
indicating that the revenue records stood in the names of various persons
belonging to Thagasamy Pillai branch as there has been a partition of the
properties among the various members of Thangasamy Pillai branch.
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S.A.No.461 of 2004
16.Except Item No.1, the other items have been classified only as
agricultural properties. Therefore, the plaintiffs were justified in filing the
suit based on Section 7 of Tamil Nadu Court fees Act and paying the Court
fee based on the kist value. The defendants have not adduced any evidence
to show that item No.1 of the suit schedule property has been undervalued.
Therefore, I answer the first substantial question of law in favour of the
appellant.
17.The first appellate court in paragraph No.11 framed an issue as to
whether Ex.A45 has been proved. But while answering the said issue, the
first appellate court has cast doubts on Ex.A3. The first appellate court had
remarked that Ex.A3 was never acted upon. Evidence has been adduced to
show that Kunjarathammal had acted on Ex.A45 settlement deed. Specific
finding had been given to that effect in O.S.No.321 of 1994 on the file of
District Munsif Court, Paramakudi, dated 17.12.1999. Ex.A3 and Ex.A45
are like siamese twins. They cannot be separated from each other.
Kunjarathammal was allotted as many as 22 items vide Ex.A45. She
released her rights in respect of certain items through Ex.A3. When Ex.A45
has been acted upon, Ex.A3 cannot be ignored as a sham and nominal
document. I answer the third substantial question of law in favour of the
appellant and against the contesting respondents.
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S.A.No.461 of 2004
18.In this view of the matter, the judgment and decree passed by the
first Appellate Court are set aside and the judgment and decree passed by
the trial Court is restored.
19.The second appeal is allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
29.06.2021
Internet : Yes/No
Index : Yes/No
rmi/skm
To
1.The Subordinate Judge, Paramakudi.
2.The District Munsif, Paramakudi.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.461 of 2004
G.R.SWAMINATHAN, J.
rmi/skm
Judgment made in
S.A.No.461 of 2004
and
C.M.P.Nos.1370 to 1372 of 2005
29.06.2021
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