Madras High Court
Minor Gohilavani vs R.Selvaraj on 28 October, 2021
S.A.No.795 of 2021 & CMP.No.15379 of 2021
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.10.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.795 of 2021 &
CMP No.15379 of 2021
Minor Gohilavani
D/o.K.R.Rangasamy
Minor Rep. By her mother/next friend
Thilagavathi, W/o.K.R.RAngasamy
49, Alankattuthottam,
Kathirampatti Village,
Erode Taluk & District. ... Appellant
.Vs.
1.R.Selvaraj
2.K.R.Rangasamy ... Respondents
PRAYER: Second Appeal filed under section 100 of the Civil
Procedure Code against the judgement and decree dated 03.06.2013
made in A.S.No.15 of 2013 on the file of the learned Principal District
Court, Erode, partly modifying the judgment and decree dated
24.11.2012 made in O.S.No.194 of 2011 on the file of the learned
Second Additional Sub Court, Erode.
For Appellant : Mr.N.Manoharan
For Respondents : M/s.Zeenath Begum for R1
JUDGEMENT
https://www.mhc.tn.gov.in/judis
S.A.No.795 of 2021 & CMP.No.15379 of 2021
The plaintiff is the appellant before this Court challenging the
judgment and decree passed in O.S.No.194 of 2011 on the file of the
II Additional Subordinate Judge, Erode.
2. The facts in brief necessary for disposing of the above second
appeal are as follows:
The plaintiff, who is the appellant, had filed the above suit for
partition and separate possession of her ½ share in the suit schedule
property and for injunction restraining the first defendant, his men,
agents, assignees etc., from in any way and in any manner either
alienating or encumbering the suit properties.
3. The case of the plaintiff was that the suit schedule properties
were the ancestral properties of the plaintiff and her father. It is her
case that the second defendant is her father and the marriage
between him and her mother and guardian Thilagavathi was
solemnized on 08.03.1996 and she was born out of this wedlock on
18.02.1997. It is her case that on 10.04.1995, the properties were
partitioned between her father and the other sharers and under this
partition, the 'F' schedule properties were allotted to the second
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S.A.No.795 of 2021 & CMP.No.15379 of 2021
defendant. It is this schedule of properties which is the subject
matter of the present suit.
4.The plaintiff would contend that on birth, she had become
entitled to an undivided ½ share in the suit property along with the
second defendant, her father. It is her case that the second defendant
was leading a wayward life and was an alcoholic. She would further
contend that her father had ignored the plaintiff and her mother and
he along with the others had sold the suit properties to the first
defendant under a registered sale deed dated 16.08.2006. The case
of the plaintiff is that the father had no right to sell her share of the
property to the first defendant. It is her case that on 27.01.2011,
when she had obtained a certified copy of the document, she had
come to know that the second defendant had created the sale deed
ignoring her right. It is also her case that she and her mother are in
possession of the property and on 16.03.2006, the first defendant
attempted to take forcible possession of the suit property. She would
submit that the remedy open to the first defendant is only to file the
suit for partition till then he is estopped from taking possession of the
properties. It is her further case that she had issued a pre-suit notice
dated 17.02.2011 calling upon the first defendant to cancel the sale
deed dated 16.03.2006 and not to interfere with her peaceful
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S.A.No.795 of 2021 & CMP.No.15379 of 2021
possession and enjoyment of the property. The first defendant on
receiving the said notice, had issued a reply containing false and
vexatious allegations on 02.03.2011. Therefore, the plaintiff has come
forward with the present suit as the second defendant had taken a
defense that the sale has been effected by the second defendant as
'Kartha' and 'Manager' for family necessities and for the welfare of the
minors.
5.The first defendant had filed a written statement inter alia
contending that the allegations made by the plaintiff about her father/
second defendant was absolutely incorrect and concocted and that he
is a bona fide purchaser for value, since the property had been sold
by the sharers who were parties to the partition deed dated
10.04.1995 to clear certain loans that had been borrowed by some of
the parties. The sharers had sold the property not only for themselves
but also for their minor children and had received valuable
consideration. A portion of the said amount was payable to the
various creditors by several of the executors including the second
defendant. He would therefore submit that the sale was effected by
the second defendant only as 'Kartha' for family necessities. He would
further submit that the minor plaintiff, her mother and father are all
residing together and the allegations to the contrary are totally false.
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S.A.No.795 of 2021 & CMP.No.15379 of 2021
The plaintiff and her mother were very much aware about the sale.
Therefore, he sought for dismissal of the suit. He had also raised a
plea of non-joinder of necessary parties since admittedly the suit
properties were undivided portions even according to the plaintiff and
the other sharers were also necessary parties to the suit.
6.The trial Judge had framed the following issues:
“1.thjp Tl;Lg';Fjhuuh> kw;Wk; jhthr; brhj;jpy; thjpf;F bghJtpy; ghjp
g';F chpika[s;sjh>
2/ 15/03/2006k; njjp 1k; gpujpthjp nghpy; 2k; gpujpthjp vGjpitj;j
fpuag;gj;jpuk; fl;Lg;gLj;jf;Toajh>
3/ 1k; gpujpthjp jhthr; brhj;jpd; ey;byz;zfpuajhuuh>
4/ ,e;jtHf;F gFjp ghfg;gphp tpidahy; ghjpf;fg;gl;Ls;sjh>
5/ ,e;j tHf;fpy; mtrpa jug;gpdiu nrh;f;fhj njhrj;jhy;
ghjpf;fg;gl;Ls;sjh>
6/ jhthr; brhj;jpy; cs;s 1-2 g';ifg; bghWj;J thjp ghfg;gphptpid kw;Wk;
jdp RthjPdk; bgw chpika[s;stuh>
7/ thjp epue;ju cWj;Jf;fl;lis ghpfhuk; bgw chpika[s;stuh>
8/ thjp Kjy;epiy jPh;g;ghiz bgw chpika[s;stuh>
9/ ntW vd;d ghpfhuk; thjpf;F fpilf;ff;ToaJ>”
7.The plaintiff's guardian had examined herself as PW1 and one
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S.A.No.795 of 2021 & CMP.No.15379 of 2021
Thangaraj as P.W.2 and had marked Exs.A1 to A8. The first defendant
had examined himself as DW1 and had marked Exs.B1 to B8.The
learned Judge ultimately decreed the suit.
8.Challenging the said judgment and decree, the first defendant
moved the appeal before the learned Principal District Judge, Erode in
A.S.No.15 of 2013. The learned District Judge, on considering the
evidence on record, came to the conclusion that in the sale deed, the
plaintiff had been made eo-nominee party and the allegations
regarding wayward life of the second defendant had not been proved.
That apart, the recitals in the sale deed clearly indicated that the sale
was only for the legal necessities and it was not only the second
defendant but the other family members who had executed the sale
deed including their respective minors. None of the others challenged
the sale deed and therefore, the sale deed cannot be held to be
invalid. The learned appellate Judge therefore held that the finding of
the trial Judge that the sale was not binding on the plaintiff was not
based on proper appreciation of the available evidence. The learned
Judge has also taken note of the fact that though the plaintiff had
pleaded that the father was not taking care of her and her mother's
evidence would show that both the plaintiff as well as her mother are
residing only with the second defendant. Ultimately, the lower
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S.A.No.795 of 2021 & CMP.No.15379 of 2021
Appellate Court allowed the appeal and set aside the judgment and
decree of the trial Court holding that the first defendant had proved
that the alienation was for a legal necessity and the plaintiff who had
come forward with the contentions that the sale was on account of
the wayward life of her father had failed to prove the same. That
apart, the other sharers who had executed the sale have not joined in
the suit. Challenging the above appeal, the plaintiff is before this
Court.
9. Heard the learned counsel for the appellant.
10. As held by the lower Appellate Court, it is seen from the
records that the sale in favour of the first defendant had not been
executed by the second defendant alone. The sale deed, Ex.A5-has
been executed by 17 members and that apart, the plaintiff has been
added as an eo-nominee party, to the deed. Likewise, the other
family members have also included their respective children (minors)
as parties. The other family members have not questioned the sale
deed and further, the second defendant has remained ex parte. The
plaintiff who had pleaded that her father's wayward life style and
addiction to alcohol had prompted him to alienate the property has
not been substantiated by letting in evidence. Therefore, the plaintiff
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S.A.No.795 of 2021 & CMP.No.15379 of 2021
has failed to prove any immoral and illegal act on the part of the
second defendant. The learned appellate Judge has considered the
above facts as well as the fact that the sale has been executed by the
father as 'Kartha' for a legal necessity. The records would also reveal
that the first defendant who had undertaken to discharge the debts
has also discharged the same and therefore, the first defendant has
complied with his obligation under the deed. Therefore, there is no
merit in the case of the Appellant/Plaintiff.
11. The appellant has not made out any question of law much
less a substantial questions of law that warrants the interference of
this Court. Hence, the appeal stands dismissed. However, there shall
be no order as to costs. Consequently, connected miscellaneous
petition is closed.
28.10.2021
Index : Yes/No
Internet: Yes/No
kal
To
1. The Principal District Court,
https://www.mhc.tn.gov.in/judis
S.A.No.795 of 2021 & CMP.No.15379 of 2021
Erode.
2. The Second Additional Sub Court,
Erode.
P.T.ASHA, J
kal
https://www.mhc.tn.gov.in/judis
S.A.No.795 of 2021 & CMP.No.15379 of 2021
S.A.No.795 of 2021 &
CMP No.15379 of 2021
28.10.2021
https://www.mhc.tn.gov.in/judis
