Balan vs Subbulakshmi
2021 Latest Caselaw 19519 Mad

                                                                                    S.A.No.921 of 2004

                                   BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   DATED: 23.09.2021

                                                          CORAM:

                             THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                                   S.A.No.921 of 2004


                   Balan                             ... Plaintiff / 1st Respondent / Appellant

                                                          -Vs-


                   1.Subbulakshmi

                   2.Jayalakshmi                   ... Defendants / Appellant & 2nd Respondent/
                                                                    Respondents

                   PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
                   Code, against the judgment and decree of the Principal Subordinate Judge,
                   Tenkasi, dated 15.09.2003 in A.S.No.37 of 2003 reversing the judgment and
                   decree of the learned Principal District Munsif, Tenkasi, dated 20.02.2003
                   in O.S.No.27 of 1997.


                                          For Appellant          : Mr.T.S.R.Venkataramana
                                          For Respondents : Mr.Nataraj


                                                      JUDGMENT

The plaintiff in O.S.No.27 of 1997 on the file of the Principal District

Munsif Court, Tenkasi is the appellant in this second appeal.

https://www.mhc.tn.gov.in/judis/

S.A.No.921 of 2004

2. The plaintiff filed the said suit for partition of 1/3rd share in the suit

properties. The case of the plaintiff was that the suit properties originally

belonged to one Sethil kumar Thevar. Following his demise, it devolved on

his wife Brahma Rakshasi Muthammal and two daughters namely Chellam

@ Valliyammal and Seniyathal. The plaintiff purchased Valliyammal's 1/3rd

share vide sale deed dated 17.06.1996 for valuable consideration. Since the

defendants were not coming forward for amicable partition, he was

constrained to institute the said suit. The defendants filed the written

statement controverting the plaint averments. They took two defences in

the alternative. The first defence was that the sale deed dated 17.06.1996

was not executed by Chellam @ Valliyammal on the ground that it was a

fraudulent document. The other contention was that the suit property

devolved on Brahma Rakshasi Muthammal absolutely and that from her, the

first defendant had purchased vide sale deed dated 04.10.1979 for valuable

consideration and that in the said sale deed, the plaintiff's vendor as well as

her sister have attested and that therefore, the principle of estoppel will

operate against the plaintiff and in favour of the defendants. Based on the

divergent pleadings, the trial court framed the necessary issues. The

plaintiff examined himself as P.W.1 and marked Ex.A1 to Ex.A3. On behalf

of the defendants, the husband of the first defendant was examined as https://www.mhc.tn.gov.in/judis/

S.A.No.921 of 2004

D.W.1 and Ex.B1 to Ex.B5 were marked. After a consideration of the

evidence on record, the trial court passed preliminary decree granting 1/3rd

share in favour of the plaintiff. Aggrieved by the same, the first defendant

filed A.S.No.37 of 2003 before the Principal Sub Court, Tenkasi. By the

impugned judgment and decree dated 15.09.2003, the first appellate court

set aside the decision of the trial court and allowed the appeal and

dismissed the suit. Challenging the same, this second appeal came to be

filed.

3. The second appeal was admitted on the following substantial

questions of law:-

1.Whether the 1st respondent who had pleaded that the properties belong to Brahma Rakshasi Muthammal can be allowed to shift her case and contend at the trial that the properties belong to Senthilkumar and came to be inherited by Brahma Rakshasi Muthammal alone to the exclusion of her daughters in the absence of any pleading in that behalf?

2. Is not the finding of the first appellate court that mere attestation will operate as estoppel contrary to settled law when admittedly the parties are illiterate ladies?

3. Is not the finding of the appellate court that an attestor also joins in the conveyance completely erroneous in law?

4. The learned counsel appearing for the appellant reiterated all the

contentions set out in the memorandum of grounds. He submitted that the https://www.mhc.tn.gov.in/judis/

S.A.No.921 of 2004

stand of the contesting defendants that mere attestation by Chellam @

Valliyammal in Ex.B1 will operate as estoppel is fundamentally fallacious.

He took me through the scheme set out in the Transfer of Property Act,

1882. Section 3 of the said Act defines the expression 'attestation'. Section

5 of the Act defines 'transfer of property'. The contention of the learned

counsel appearing for the appellant is that by an act of attestation, there

cannot be a transfer of property. The property originally belonged to

Senthil Kumar thevar and following his demise, it would devolve on his

wife and two daughters in equal shares. Under Ex.B1, Brahma Rakshasi

Muthammal could have alienated or conveyed only her 1/3rd share in the

suit property and that she could not have sold the suit property in its entirety

in favour of the first defendant. He also would state that the plaintiff's

vendor as well as her mother and sister are illiterate woman and that they

only put a mark or what is known as 'Keeral'. In this regard, he placed

reliance on the decision of the Madras High Court reported in 2008 (2)

CTC 135 (Sarojini Vs. Mohandoss).

5. To a specific question from the Court as to whether the plaintiff

made a search in the encumbrance register, the learned counsel would state

that while the evidence is silent on this aspect, the plaintiff was very much

entitled to buy what was the legitimate share of Chellam @ Valliyammal. https://www.mhc.tn.gov.in/judis/

S.A.No.921 of 2004

He also would state that even though with regard to the very same property

there was litigation between the plaintiff's father and the first defendant, the

outcome of the said litigation cannot have any impact on the plaintiff's right

to buy Valliyammal's 1/3rd share in the suit property. He submitted that the

first appellate court had totally misdirected itself in law. The first appellate

court erroneously sustained the plea of adverse possession projected by the

first defendant. To sustain the plea of adverse possession, a person must

concede that the original title was with the contestant. In the case on hand,

the case of the first defendant is that the suit property absolutely belongs to

her. Therefore, the learned counsel called upon this Court to answer the

substantial questions of law in favour of the appellant and set aside the

impugned judgment and decree passed by the first appellate court and

restore the decision of the trial court.

6. Per contra, the learned counsel appearing for the contesting

respondents submitted that the impugned judgment and decree do not call

for any interference.

7. I carefully considered the rival contentions and went through the

evidence on record. There is no dispute that the suit property originally

belonged to Senthil Kumar Thevar and that Brahma Rakshasi Muthammal

was his wife and that Chellam @ Valliyammal and Seniyathal were his

daughters. Of-course, there is some controversy as to when Senthil Kumar https://www.mhc.tn.gov.in/judis/

S.A.No.921 of 2004

Thevar passed away. The learned counsel appearing for the respondents

commenced his contention by arguing that even according to the plaintiff,

Senthil Kumar Thevar passed away some 50 years ago. P.W.1 was

examined some time in the year 2003. The learned counsel for the

respondents on that basis would argue that it would be safe to conclude that

Senthil Kumar Thevar died prior to the commencement of the Hindu

Succession Act, 1956. During the relevant time, daughters were not

entitled to succeed to the property of a male Hindu who died intestate.

He would draw my attention to Section 3 of the Hindu Women's Rights to

Property Act, 1937 and submitted that the property devolved entirely on the

widow namely Brahma Rakshasi Muthammal and that daughters could not

have inherited any share or right in the suit property.

8. Though this contention appears to be attractive, as rightly pointed

out by the learned counsel appearing for the appellant, this was never the

case of the first defendant. In the written statement, such a case was never

projected. The date of death of a person is a pure question of fact. Merely

because a witness makes a statement during deposition that a particular

person passed away some 50 years ago, it is not possible to assign a specific

year of death to that person. Therefore, I decline to consider the said

contention advanced by the learned counsel appearing for the contesting

respondents.

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S.A.No.921 of 2004

9. There is no dispute that the first respondent herein namely Subbu

Lakshmi filed O.S.No.165 of 1991 before the District Munsif Court,

Tenkasi seeking the relief of declaration and permanent injunction against

the father of the plaintiff namely Shanmuga Thevar. The said suit involved

the suit property and two other items. In the said plaint, Subbu Lakshmi

had categorically pleaded that the suit property originally belonged to

Senthil Kumar Thever and following his demise, it devolved on his wife

Brahma Rakshasi Muthammal and that she had purchased the same from

her for valuable consideration. The suit was decreed on 30.04.1996 and

A.S.No.50 of 1996 filed before the Additional Sub Court, Tenkasi was

dismissed on 23.12.1997. Of-course, the outcome of the said litigation

cannot in any way impair the right of the plaintiff. I do sustain the

contention of the learned counsel appearing for the appellant that he is

noway bound by the said judgment. However, a buyer of the property has

to be necessarily beware. One can reasonably expect a buyer of a property

to apply for what is known as encumbrance certificate. In the case on hand,

the plaintiff has not undertaken any such exercise.

10. The specific case of the first defendant / Subbu Lakshmi is that

she purchased the suit property under Ex.B1 dated 04.10.1979. In the said https://www.mhc.tn.gov.in/judis/

S.A.No.921 of 2004

sale deed, the plaintiff's vendor Chellam @ Valliyammal had attested.

Merely because a person makes an attestation, knowledge of the contents of

the document cannot be imputed to the attestor. But that would not apply in

the case of a person who is having an interest in the property. In this

regard, the learned counsel appearing for the contesting respondents relies

on the decision reported in (1974) 2 MLJ 404 (A.S.Muthiah Vs.Peter

Nadar). In the said decision, it was held as follows:-

“10.The next case relied on by Thiru.P.Balasubramanian, Ramaswamy Goundar Vs. Ananthapadmanabha Iyer (971) 1 M.L.J 392 has held:

Where a person having a tangible interest in the property affected by a deed, attests that deed, his attestation should be taken as proof of his consent to and knowledge of the correctness of the recitals in the deed.

Therefore, in the facts and circumstances of the case, A and R. were estopped from contending that M had only a life interest and did not have an absolute interest in the property in question and consequently, the plaintiff as the successor-in-interest of A and R, is also estopped from putting forward that contention.”

11. Of-course, the learned counsel appearing for the appellant

contends that Chellam @ Valliyammal could have been taken for a ride.

But then, the plaintiff must have examined the said Chellam @

Valliyammal. She was not at all examined. There are three circumstances

that clearly militate against the contentions now putforth by the learned

counsel appearing for the appellant.

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S.A.No.921 of 2004

(a) Prior to the purchase of 1/3rd share in the suit property under

Ex.A2 dated 17.06.1996, the plaintiff's father had lost O.S.No.165 of

1991 filed by the first respondent Subbu Lakshmi. The said suit was

decreed on 30.04.1996. The suit sale had taken place on 17.06.1996. It

is safe to assume that the plaintiff was aware of the litigation between

his father and the first defendant herein.

(b) If only the plaintiff had applied for encumbrance certificate,

sale made in favour of Subbu Lakshmi would have been evident and

obvious. The plaint is eloquently silent on this aspect

(c) Attestation of Ex.B1 by the plaintiff's vendor Chellam @

Valliyammal and her non-examination as a witness in the present

present proceedings.

12. From these circumstances, I have to necessarily hold that the

plaintiff is not a bonafide purchaser. Since his father had lost litigation

instituted by Subbu Lakshmi, to overcome the same, the plaintiff entered

into the suit transaction to open a fresh round of litigation. In the facts and

circumstances of the case, attestation by the plaintiff's vendor will definitely

operate as estoppel. The second and third substantial questions of law are

answered against the appellant. I confirm the findings of the first appellate

court.

https://www.mhc.tn.gov.in/judis/

S.A.No.921 of 2004

G.R.SWAMINATHAN.J.,

rmi

13. The second appeal is dismissed. No costs.

23.09.2021

Internet : Yes/No Index : Yes/No rmi To

1.The Principal Subordinate Judge, Tenkasi.

2.The Principal District Munsif, Tenkasi.

Copy To The Section Officer, Vernacular Records, Madurai Bench of Madras High Court,Madurai.

Judgment made in S.A.No.921 of 2004

https://www.mhc.tn.gov.in/judis/