Madras High Court
A.Abdul Kadar vs M.A.Mymoon Beevi on 22 September, 2021
S.A.(MD)No.394 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.09.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.394 of 2014
A.Abdul Kadar ... Appellant / Respondent / Plaintiff
-Vs-
1.M.A.Mymoon Beevi
2.Mohammed Ibrahim
3.M.A.Moudali Syed Ahamed (Died) ... Respondents / Appellants/
Defendants
4.Rahmath
5.Mohamed Arif
6.Mohamed Nawab
7.Saibunisha
8.Mohamed Basith Riyan
(Respondents 4 to 8 are brought on record
as Lrs of the deceased 3rd respondent vide order
dated 07.09.2021) ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree dated 14.08.2012 made in A.S.No.02
of 2011 passed by the III Additional District and Sessions Judge,
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S.A.(MD)No.394 of 2014
Tirunelveli by reversing the judgment and decree dated 29.10.2010 made in
O.S.No.113 of 2009 passed by the Principal Subordinate Judge, Tirunelveli.
For Appellant : Mr.M.Sankar
For Respondents : Mr.M.P.Senthil
JUDGMENT
This second appeal arises out of a partition suit. The plaintiff is the
appellant. The appellant filed O.S.No.113 of 2009 before the Principal Sub
Court, Tirunelveli seeking partition of 7/24th share in the suit properties.
There is no dispute that the suit properties originally belonged to the father
of the plaintiff namely late Mohammed Abdul Razak. He passed away in
the year 1999. The plaintiff filed the partition suit arraying his mother
Mymoon Beevi and his brothers Mohammed Ibrahim and Moudalli Syed
Ahamed as defendants. The suit items are two in number. Regarding the
second item, there is no dispute because the said item was gifted in favour
of the three sons by late Mohammed Abdul Razak vide gift deed dated
09.04.1985. The contest revolves only around the first item. The stand of
the defendants 2 and 3 was that the said property was sold in their favour by
father under Ex.B11 dated 05.11.1992. Based on the divergent pleadings,
the trial court framed the necessary issues. The plaintiff examined himself
as P.W.1 and marked Ex.A1 and Ex.A2. The third defendant examined
himself as D.W.1 and marked Ex.B1 to Ex.B6. After a consideration of the
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S.A.(MD)No.394 of 2014
evidence on record, the trial court by judgment and decree dated 29.10.2010
passed preliminary decree in favour of the plaintiff. Aggrieved by the same,
the defendant filed A.S.No.2 of 2011 before the third Additional District
and Sessions Judge, Tiruneleli. Vide judgment and decree dated
14.08.2012, the first appellate court set aside the decision of the trial court
and allowed the appeal and dismissed the suit. Aggrieved by the same, the
plaintiff filed the second appeal. During the pendency of the second appeal,
the third respondent passed away and his legal heirs were brought on
record. The appeal was admitted on the following substantial questions of
law:-
“1.Whether the sale deed dated 15.11.1992 is valid in law?
2. Whether the said sale is valid as the difference in the stamp
duty as contemplated under Section 19-B and 47-A of Indian Stamp
Act within the period of four years as contemplated therein, which is
mandatory is not paid and validated?”
2. The learned counsel appearing for the appellant 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 appellant.
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S.A.(MD)No.394 of 2014
3. The learned counsel appearing for the appellant submitted that
Ex.B1 dated 05.11.1992 was registered at Parassala, Kerala State and
therefore, there is a clear violation of the mandatory provisions of the
Indian Stamp Act as amended in the State of Tamilnadu. According to him,
it is not even admissible in evidence. Therefore, once Ex.B1 is eschewed
out of consideration, the impugned judgment and decree of the first
appellate court cannot stand. He called upon this Court to restore the
decision of the trial court.
4. Per contra, the learned counsel appearing for the respondents
submitted that the impugned judgment and decree do not warrant any
interference.
5. I carefully considered the rival contentions and went through the
evidence on record. As already noticed, both the suit items belonged to
late.Mohammed Abdul Razak. The second item was gifted by him in the
year 1985 in favour of all the three sons. The plaintiff under Ex.B1 had
sold his undivided share in second item in favour of the second respondent
herein. Therefore, the plaintiff cannot have any claim as regards the second
item. This aspect of the matter has been specifically dealt with by the trial
court itself in Paragraph No.13. The contest in this second appeal is only
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S.A.(MD)No.394 of 2014
regarding the first item. It is a fact that Mohammed Abdul Rasak executed
Ex.B1 in the year 1992 and that he passed away seven years later. The
partition suit came to be filed only in the year 2009.
6. The learned counsel appearing for the respondents would state that
after his marriage, the plaintiff left the family and that was probably the
reason why the father chose to sell suit item No.1 in favour of the other two
sons. He also would point out that D2 and D3 took care of their father till
his death in the year 1999. Of-course, the learned counsel appearing for the
appellant would controvert the said assertion. But in my view, the stand of
the respondents is probabilised by the fact that mother chose to sail with
D2 and D3. She adopted their written statement. In-fact, she would join
D2 and D3 in filing the first appeal, even though she did not have any claim
in the matter. What clinches the issue in favour of the defendants is
execution of Ex.B1 by the plaintiff. Under Ex.B1, the plaintiff had sold his
undivided share in suit item No.2 in favour of the second defendant. The
boundary description given in Ex.B1 is highly significant. The plaintiff
while describing the property sold to D2 had stated that the property
covered under Ex.B1 is lying to the south of Door No.32 as belonging to
D2. D2 and D3 became the owner of the premises bearing door No.32 only
under Ex.B1. It means that the plaintiff was aware of the sale made by the
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S.A.(MD)No.394 of 2014
father in favour of his brothers in the year 1992. When the plaintiff was
specifically confronted with this boundary description set out in Ex.B1, he
feigned ignorance. He stated that he was not aware of the same. The
plaintiff did not take the stand that sale deed was prepared by the
defendants and that he merely signed it. Therefore, when the plaintiff
himself had accepted the sale made in favour of D2 and D3, the question of
challenging the same 10 years thereafter will clearly not arise at all. As
already pointed out by the learned counsel for the respondents, the sale was
made in the year 1992. The factum of sale was known to the plaintiff and
he had also accepted the same. Therefore, it is not open to the plaintiff to
challenge the same in the year 2009.
7. Regarding the substantial questions of law raised in this second
appeal, a learned judge of this Court in the decision reported in CDJ 2020
MHC 754 (D.Vijayalakshmi Vs. V.Hariselvan and others) has stated that
registration of the document at Parassala would not amount to fraudulent
registration. In view of the aforesaid decision, the substantial questions of
law are answered against the appellant.
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S.A.(MD)No.394 of 2014
8. The second appeal is dismissed. No costs.
22.09.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The III Additional District and Sessions Judge, Tirunelveli.
2.The Principal Subordinate Judge, Tirunelveli.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.394 of 2014
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.394 of 2014
22.09.2021
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