Madras High Court
Antony Ignesi Jebastian vs Chozha Textiles (P) Ltd on 2 September, 2021
S.A.(MD)No.203 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.203 of 2009
Antony Ignesi Jebastian ... Appellant / 1st Respondent / Plaintiff
-Vs-
1.Chozha Textiles (P) Ltd.,
Vedasanthur,
Rep. By its Administrative Director Office,
Vedasanthur,
Dindigul District. ... 1st Respondent / Appellant / 3rd Defendant
2.Peproni
3.Elizbeth Rani
4.Jesu Maria Susai ... Respondents 2 to 4 / Respondents 2 to 4/
Defendants 1, 2, and 4
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 23.12.2008 made in A.S.No.73
of 2007 on the file of the Sub Court, Valliyoor, reversing the judgment and
decree dated 26.06.2006 made in O.S.No.352 of 2004 on the file of the
Principal District Munsif Court, Valliyoor.
For Appellant : Mr.Balamohan Thampi
for Mr.S.Siva Thilakar
For R1 : Mr.S.Mahesh Kumar
for Mr.R.S.Pandiyaraj
For R3 & R4 : no appearance
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S.A.(MD)No.203 of 2009
JUDGMENT
The plaintiff in O.S.No.352 of 2004 on the file of the Principal
District Munsif Court, Valliyoor is the appellant in this second appeal.
2. The suit was one for partition. The case of the plaintiff is that the
suit items numbering 7 originally belonged to his father Devasahaya Gruz
Pattankattiar. Devasahaya Gruz Pattankattiar was married to one Jesu
Antony Ignasi. Through her, he had begotten two daughters namely
Expathithu and Antony Ammal. After demise of the first wife, Devasahaya
Gruz Pattankattiar married Jesu Maria Soosai and through her, begot
Peproni and Elizabeth. Devasahaya Gruz Pattankattiar passed away in the
year 1969. Thereafter, partition was entered into between the daughters
born to Devasahaya Gruz Pattankattiar through his first wife and the second
wife. The second wife Jesu Mariya Soosai represented herself and her
three children. The suit items were allotted to the share of the second wife
and three children. According to the plaintiff, the suit items have not been
partitioned till date. The plaintiff came to know that the third defendant
namely Chozha Textiles Private Limited was also staking claim on the suit
second item comprised in Survey No.460. Therefore, seeking partition and
separate possession of his 2/9th share in the suit items, the partition suit
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S.A.(MD)No.203 of 2009
came to be laid. His two sisters were shown as D1 and D2. The plaintiff's
mother was shown as fourth defendant. The alienee in respect of suit 2nd
item was shown as third defendant. The plaintiff's sister and mother
remained exparte. The suit was contested only by the third defendant. The
third defendant filed written statement pointing out that the suit 2nd item
was sold by the plaintiff's mother under Ex.B1 dated 10.11.1975 in favour
of one Suyambu Nadar. Suyambu Nadar subsequently sold the property in
favour of M/s.Sarjan Realities Private Limited. Under Ex.B4, there was an
exchange of the lands and that is how, the third defendant came to be in
possession of the suit 2nd item. The contention of the third defendant was
that the suit was hopelessly barred by limitation. Few other contentions
were also raised. Based on the rival pleadings, the trial court framed the
necessary issues. The plaintiff examined himself as P.W.1 and marked
Ex.A1 and Ex.A2. On the side of the contesting defendants, three witnesses
were examined. Ex.B1 to Ex.B7 were marked. After considering the
evidence on record, the trial court by judgment and decree dated 26.06.2006
granted preliminary decree allotting the plaintiff 2/9th share in all the suit
items. Aggrieved by the grant of preliminary decree as regards suit 2nd item,
the third defendant filed A.S.No.73 of 2007 before the Sub Court, Valliyoor.
By the impugned judgment and decree dated 23.12.2008, the judgment and
decree passed by the trial court as regards the suit 2nd item was set aside and
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S.A.(MD)No.203 of 2009
the appeal was allowed. Aggrieved by the same, the plaintiff filed this
second appeal. The second appeal was admitted on the following
substantial questions of law:-
“(i) Whether Ex.B1 sale deed executed by Jesu Maria Soosai
Ammal in favour of Suyambu Nadar can bind the plaintiff in respect of his
2/9th share in the suit property?
(ii) Whether the suit for partition is barred by limitation?”
3. Heard the learned counsel on either side.
4. The learned counsel appearing for the appellant submitted that as
per Ex.B1-partition deed in suit 2nd item, not only the fourth defendant, the
plaintiff and the defendants 1 and 2 also had undivided share. There is
nothing on record to show that the suit items were partitioned among the
family members. Of-course, the fourth defendant was the mother and
natural guardian of the plaintiff in the year 1975. But then, when the fourth
defendant sold the suit 2nd item in favour of Suyambu Nadar under Ex.B1
dated 10.11.1975, the sale was made in her individual capacity. Minor
children were not even shown as eo-nominee parties. The parties are
Christians and therefore, Jesu Maria Soosai could have had only 1/3rd share
in the said suit item. The said sale made by her could be valid only to the
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S.A.(MD)No.203 of 2009
extent of her 1/3rd share in the suit item. Since the plaintiff was not even
shown as eo-nominee party, it will not bind the plaintiff. The plaintiff was
also not obliged to formally challenge the same seeking its invalidation as
far as his share is concerned. The learned counsel submitted that the
appellant was not aware of the alienation made by his mother / D4 and
therefore, the suit cannot be said to be barred by limitation. He called upon
this Court to answer the substantial questions of law in favour of the
appellant and set aside the impugned judgment and decree and restore the
decision of the trial Court in toto.
5. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree is well reasoned and that
it does not call for any interference.
6. I carefully considered the rival contentions and went through the
evidence on record. It is true that the suit item No.2 was allotted to the
share of the plaintiff, his two sisters (D1 and D2) and his mother (D4). It is
again true that the suit 2nd item was alienated as a whole by his mother.
Ex.B1 does not indicate that the sale was made not only on her behalf but
also on behalf of the minor children. Of-course, Ex.B1 mentions that sale
was for family necessity. But then, the plaintiff has not been joined as
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S.A.(MD)No.203 of 2009
eo-nominee party. Therefore, I answer the first substantial question of law
in favour of the appellant. The plaintiff examined himself as P.W.1. To a
pointed question, the plaintiff admitted that his mother / D4 continues to
reside with him. When Ex.B1 was executed by his mother, the plaintiff was
aged about 17 years. The suit came to be filed only on 03.06.2004. In other
words, the plaintiff has sought to enforce his right after a gap of almost 29
years. The alienee namely Suyambu Nadar under Ex.B1 was examined by
the contesting defendant as D.W.3. D.W.3 had categorically deposed that
immediately after purchasing the property from the plaintiff's mother, he
took possession and was enjoying it in his independent capacity. He also
deposed that the patta in respect of suit 2nd item stood only in his name till
the deed of exchange under Ex.B4 was executed. The first appellate court
had stated that following the execution of the deed of exchange, the revenue
records were changed in favour of the contesting defendant. The plaintiff
was specifically questioned as to whether he had been remitting the kist in
respect of the suit item No.2. The plaintiff pleaded utter ignorance. He
also stated that he is not having patta in his name. Therefore, this is a case,
in which, Section 27 of the Limitation Act will come into play. The plaintiff
had attained majority some time in the year 1976. The alienee under Ex.B1
was enjoying the suit 2nd item as a rightful owner. Neither Suyambu Nadar
nor his successor-in-title and interest have pleaded adverse possession
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S.A.(MD)No.203 of 2009
against the plaintiff. They also do not claim to be co-owners. They were
enjoying the entire property in an independent capacity. Their enjoyment
was open also. Therefore, the plaintiff ought to have filed the suit for
recovery of possession within a period of 12 years after attaining majority.
He did not do so. Therefore, after determination of the period of 12 years,
the plaintiff's right to suit 2nd item stood extinguished. That is the clear
effect of Section 27 of the Limitation Act. Therefore, the second substantial
question of law is answered against the appellant. The impugned judgment
and decree do not call for any interference. The second appeal is dismissed.
No costs.
02.09.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Sub Court, Valliyoor.
2.The Principal District Munsif Court, Valliyoor.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.203 of 2009
G.R.SWAMINATHAN, J.
rmi
Judgment made in
S.A.(MD)No.203 of 2009
02.09.2021
https://www.mhc.tn.gov.in/judis
