Madras High Court
Shylaja vs Vijayalakshmi on 5 October, 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 05.10.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
SA(MD)No.356 of 2007
Shylaja ... Plaintiff/Appellant/Appellant
Vs.
1.Vijayalakshmi
2.Sadasivan
3.Kamalakshy
4.Sowmendranathan ... Defendants/Respondents /
Respondents
Prayer: Second Appeal is filed under Section 100 of Civil
Procedure Code, against the judgment and decree in A.S No.84
of 2001 on the file of the II Additional Subordinate Judge,
Nagercoil Camp Court at Kuzhithurai dated 03.09.2004
confirming that of the judgment and decree in O.S No.148 of
1994 dated 03.07.2001 on the file of the II Additional District
Munsif, Kuzhithurai.
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For Appellant : Mr.K.Sree Kumaran Nair
For Respondents : Mrs.J.Anandavalli for R2
No appearance for R1 & R4
JUDGMENT
The plaintiff in O.S No.148 of 1994 on the file of the II
Additional District Munsif Court, Kuzhithalai is the appellant in
this second appeal. The suit was filed by the appellant seeking
the relief of declaration and possession over the plaint “D”
Schedule property and for consequential permanent injunction.
The case of the plaintiff is that the plaint “A” Schedule property
bearing RS.No.418/8, Vilavancode Village measures an extent of
20 cents and that it belonged to Narayana Panicker. The said
Narayana Panicker had executed a power of attorney dated
30.06.1984 in favour of his son Sowmendranathan. The said
Sowmendranathan executed a registered sale deed dated
28.03.1990 in favour of the plaintiff. The case of the plaintiff is
that what was sold to her under Ex.A1 measures 4.5 cents on
the western portion of the “A” Schedule property and that was
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described as the “B” Schedule property. The case of the plaintiff
was contested by D1 and D2 primarily. The fourth defendant
Sowmendranathan who sold the suit “B” Schedule property in
favour of the plaintiff is none other than the husband of the
plaintiff. D3 Kamalakshi is none other than the mother of D1,
D2 and D4. The case was primarily contested by D1 and D2.
Based on the divergent pleadings, the trial court framed the
necessary issues. The plaintiff examined herself as PW.1 and
marked Exs.A1 to A11. The fourth defendant Sowmendranathan
examined himself as DW.1. The contesting defendant Sadhasiva
Panicker examined himself as DW.2. Kamalakshi examined
herself as DW.3. Exs.B1 to B27 were marked. After
consideration of the evidence on record, the trial court by
judgment and decree dated 03.07.2001 dismissed the suit.
Aggrieved by the same, the plaintiff filed A.S No.84 of 2001
before the II Additional Sub Court, Kuzhithurai. Her husband
and vendor Sowmendranathan also filed cross appeal. The first
appellate court by the impugned judgment and decree dated
03.09.2004 dismissed the appeal as well as the cross appeal.
Challenging the same, this second appeal came to be filed. The
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second appeal was admitted on the following substantial
question of law :
“When admittedly there was an excess area of
3 cents in the suit survey number and the same was
not transferred by Narayana Panicker, whether the
sale deed Ex.A1 executed by 4th defendant in favour
of the plaintiff under Ex.A1 is valid at least to the
extent of excess area of 3 cents under Section 8 of
the Transfer of Property Act.”
2.Heard the learned counsel on either side.
3.The primary contention of the learned counsel for the
appellant is that even though the plaintiff had stated that the
suit “A” schedule property measures 20 cents of land and the
contesting defendant claimed that only 16 cents of land is
available on ground, it appears that 18.3 cents of land is actually
available. Even by conceding the case of the defendants, still,
the claim of the plaintiff may have to be recognized at least over
3 cents of land. He reiterated all the other contentions set out in
the memorandum of grounds and called upon this Court to
answer the substantial question of law in favour of the appellant.
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4.Per contra, the learned counsel appearing for the
respondents submitted that the impugned judgment and decree
do not call for any interference.
5.I carefully considered the rival contentions and went
through the evidence on record. As rightly contended by the
learned counsel for the contesting respondents, the suit “A”
schedule property originally belonged to Narayana Panicker and
his wife Kamalakshi. Though the plaintiff would make a claim
over “A” Schedule property measuring 20 cents of land, what
was originally available was only 16 cents. Only during resurvey,
there was some accretion. Be that as it may, Narayana Panicker
and his wife Kamalakshi had sold 7 cents of land in favour of the
second defendant under Ex.B9 dated 21.01.1970. Since what
was originally available was only 16 cents of land, after
deducting 7 cents, Narayana Panicker and Kamalakshi had 4.5
cents each. Narayana Panicker under Ex.B16 dated 28.01.1974
had sold 4.5 cents in favour of his wife Kamalakshi. Thus,
Narayana Panicker had exhausted his right over “A” schedule
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property. Then, the question may arise as to how he could
authorise his son Sowmendranathan to sell the property in
question by executing Ex.A5 dated 30.06.1984. The learned
counsel for the contesting respondents would point out that
under Ex.A5 Narayana Panicker had merely authorised his son
to represent him in various civil proceedings. A careful reading
of Ex.A5 would show that no power to sell was authorised by
Narayana Panicker on his son Sowmendranathan. Ex.A6 is the
Tamil translation of Ex.A5. I went through the contents of
Ex.A6. In Ex.A6, nowhere it is mentioned that any power to sell
was granted in favour of power agent. Though such a plea was
not taken by the contesting defendant, I cannot ignore
something that is so obvious from the face of record. Therefore,
the plaintiff will have to be non-suited for two reasons, a) under
Ex.A6, the power agent did not have any authority to sell, b) in
1984 itself the principal Narayana Panicker had exhausted his
interest over “A” schedule property and he is not having any
salable interest therein. Subsequent accretion may not really
benefit the person who purchased under Ex.A6. Therefore, I
have no hesitation to answer the substantial question of law
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against the appellant. I find no merit in the second appeal. The
impugned judgment and decree passed by the first appellate
court do not warrant any interference. This second appeal
stands dismissed. No costs.
05.10.2021
Index: Yes/No
Internet: Yes/No
skm
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.
To
1.II Additional Subordinate Judge, Nagercoil Camp Court at
Kuzhithurai.
2. II Additional District Munsif, Kuzhithurai.
Copy to : The Record Clerk, Vernacular Records,
Madurai Bench of Madras High Court.
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G.R.SWAMINATHAN, J.
skm
SA(MD)No.356 of 2007
05.10.2021
https://www.mhc.tn.gov.in/judis
