Madras High Court
Vijayalakshmi vs Sangaiah on 8 April, 2022
A.S.(MD)No.175 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.04.2022
CORAM
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S.(MD)No.175 of 2020
Vijayalakshmi ... Appellant/2nd Defendant
Vs.
1.Sangaiah
2.Naachammai
3.Annapoornam ... Respondents 1 to 3/Plaintiffs
4.Ponnalagu ... 4th Respondent/1st Defendant
Prayer : Appeal Suit filed under Section 96 of Civil Procedure Code, against
the judgment and decree dated 26.02.2020 in O.S.No.61 of 2015 on the file of
the learned Additional District and Sessions Judge, Sivagangai, insofar as
preliminary decree granting 1/4th share to the plaintiffs in the suit schedule
properties.
For Appellant : Mr.VR.Shanmuganathan
For Respondents : Mr.D.Srinivasa Ragavan for R1 to R3
No appearance for R4
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A.S.(MD)No.175 of 2020
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and decree of the
learned Additional District and Sessions Judge, Sivagangai, dated 26.02.2020
made in O.S.No.61 of 2015.
2.The appellant is the second defendant in the suit; the plaintiffs have filed the
suit for partition and declaration that the sale deed executed in favour of the
second defendant dated 19.05.2006 is null and void; the plaintiffs and the first
defendant are siblings and children of one Vellai; the suit property belonged to
the said Vellai and he was in enjoyment of the same; he died intestate on
01.09.2003; his wife/Pappathi predeceased him; since the plaintiffs and the first
defendant are children of the deceased Vellai, they are entitled to inherit the
properties of their father/Vellai; however, the first defendant sold the first item
of the suit property in favour of the second defendant on 19.05.2006 without
the knowledge of the plaintiffs; when it came to the knowledge of the plaintiffs,
they have filed the suit for declaration that the said sale deed is null and void
and also for the relief of partition and separate possession of their
3/4th share in the suit property;
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A.S.(MD)No.175 of 2020
3.The first defendant remained ex-parte; the second defendant resisted the suit
by filing written statement stating that the first item of the suit property was not
enjoyed by the plaintiffs and first defendant jointly; out of the ancestral
properties belonged to Vellai, the first item of the suit property was given to the
share of the first defendant and from whom, the second respondent purchased
the same; so far as the second defendant is concerned, he is a bonafide
purchaser for value; after having sold the property in favour of the second
defendant, the first defendant now colluded with the plaintiffs and filed the suit;
after taking possession of the first item of the suit property, the second
defendant had made lot of improvements on the same; since the first defendant
was enjoying the first item of the suit property by ousting the other sharers
namely, the plaintiffs and also got it to his share, the sale deed executed in
favour of the second defendant on 19.05.2006 is valid and enforceable; since
the suit had been filed after nine years from the date of sale, it is barred by
limitation; hence, the suit should be dismissed as against the first item of the
suit property.
4.Basing of the above pleadings, the learned trial Judge framed the following
issues:-
“1.Whether the plaintiffs are entitled for partition as claimed
for?
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A.S.(MD)No.175 of 2020
2.Whether the sale deed dated 19.05.2006 executed by the
1st defendant in favour of the 2nd defendant is null and void?
3.Whether there was a earlier partition?
4.Whether the suit is bad for not adding all the properties of
Vellai, the father of the plaintiffs?
5.To what other reliefs are the plaintiffs entitled to?”
5.During the course of trial, on the side of the plaintiffs, two witnesses were
examined as P.W.1 and P.W.2 and Exs.A1 to A7 were marked. On the side of
the defendant, one witness was examined as D.W.1 and Exs.B1 to B8 were
marked.
6.At the conclusion of the trial and on considering the evidence available on
record, the learned trial Judge had granted the preliminary decree for partition
and separate possession by holding that the plaintiffs and the first defendant are
entitled to 1/4th share each. The relief of declaration with regard to the sale
deed was negatived. It is also observed that the second respondent is at liberty
to workout her remedies in final decree proceedings. Aggrieved over the same,
this second defendant has preferred this Appeal Suit.
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A.S.(MD)No.175 of 2020
7.Heard the learned counsel for the appellant and the learned counsel for the
respondents 1 to 3 and went through the evidence on record.
8.Mr.VR.Shanmuganathan, learned counsel for the appellant submitted that
despite the learned trial Judge had observed in the discussion of the judgment
that the sale deed cannot be declared as null and void and denied the said relief,
shares have been allotted in all the suit property including the first item of the
suit property; since the learned trial Judge had chosen to negative the prayer of
declaration of the sale deed executed in favour of the second defendant as null
and void, no share should have been granted in respect of the first item of the
suit property; the learned trial Judge had further observed in Paragraph No.11
that the second defendant can workout her equity in which the first item of the
suit property should be allotted in the share of the first defendant; but such
observation can be of no use, if the entitlement of the share of the first
defendant is restricted to 1/4th share and the plaintiffs were also given
3/4th share in the first item of the suit property; hence, the appeal should be
allowed in terms of the observation of the learned trial Judge made in Paragraph
No.11.
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A.S.(MD)No.175 of 2020
9.Mr.D.Srinivasaragavan, the learned counsel for the respondents 1 to
3/plaintiffs submitted that even though the relief of declaration to declare the
sale deed as null and void is negatived, the learned trial Judge got convinced
that the plaintiffs have got 1/4th share each in the first item of the suit property;
since the suit property belonged to the father of the plaintiffs and the first
defendant and the father died intestate, the plaintiffs and the first defendant
would entitle to 1/4th share in the suit property including the first item of the
suit property and hence, the judgment and decree of the learned trial Judge does
not require any interference.
10.Point for consideration:
“Whether the judgment and decree of the leaned trial Judge in
partly decreeing the suit by granting the relief of preliminary
decree for partition and denying the relief of declaration of the
sale deed dated 19.05.2006 as null and void is fair and
proper?”
11.The fact that the plaintiffs and the first defendant are siblings and they are
children of one Vellai is not disputed. The fact that the properties belonged to
Vellai is also not in dispute. Despite the properties belonged to Vellai and he
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A.S.(MD)No.175 of 2020
died intestate, the first defendant alone had dealt the first item of the suit
property by way of selling the same in favour of the second defendant. The
contention of the learned counsel for the respondents 1 to 3/plaintiffs in the suit
was that being the legal heirs of Vellai, they are also entitled to 3/4th share in the
first item of the suit property and hence the sale in favour of the second
defendant will not bind their interest in the first item of the suit property. It is
seen from the judgment of the learned trial Judge that there is no issue framed
with regard to the point of limitation, though it is pleaded that the relief to
declare the sale as null and void is within the period of limitation from the date
of getting knowledge about the sale deed.
12.Being the children of Vellai, the plaintiffs and the first defendant are entitled
to 1/4th share each in the suit properties. However, the first defendant sold the
entire first item of the suit property in favour of the second defendant. Since
the first defendant had sold the shares of the plaintiffs also, without their
participation, the sale in favour of the second defendant would not pass him the
entire title in respect of the first item of the suit property.
13.However, it is claimed by the second defendant that there was a partition
held in the family and in the said partition, the first item was allotted to the
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A.S.(MD)No.175 of 2020
share of the first defendant and only in view of his exclusive right in respect of
the first item of the suit property, he sold the same to the second defendant and
hence, the sale deed can be declared as null and void. In Paragraph No.11 of the
judgment of the trail Court, the learned trial Judge had made an observation that
the first defendant remained ex-parte by colluding with the plaintiffs. It is
further observed that since the second defendant had purchased the first item of
the suit property for a valuable consideration, the second defendant should be
allotted to the share of the first defendant in terms of equity and that would
protect the interest of the second defendant. Having observed so, the sale was
allowed to remain valid but the prayer to declare the sale deed as null and void
was negatived. It is to be noted that the second defendant did not file any suit
to declare herself as the owner of the first item of the suit property. Nor the
plaintiffs have come on appeal to challenge the contraction between
observation and the relief granted by the learned trial Judge. During the course
of arguments, when it was suggested by this Court that decree can be modified
to the extent of declaring the validity of the sale deed only in respect of 1/4th
share of the first defendant, the learned counsel for the appellant objected that
such a modification would be advantageous to the respondents 1 to 3, who did
not challenge the decree.
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A.S.(MD)No.175 of 2020
14.This kind of confusion would not have caused, if the learned trial Judge
clarified as to the binding nature of the sale deed/Ex.B1 in unequivocal terms.
It would have been made more clear, had the second defendant filed a counter
suit for declaration about her title in respect of the first item of the suit property.
In such circumstances, in order to clarify the doubts and ambiguity surrounding
the observation made in the judgment of the learned trail Judge and its impact, I
feel that it is appropriate to remand the matter to the learned trial Judge himself.
Only then, the learned trial Court could re-appreciate the evidence on record
and render a clear finding with regard to the first item of the suit property and
also validity of the sale deed executed in favour of the second defendant. Thus
the point for consideration is answered in favour of the appellant.
15.In the result, this Appeal Suit is allowed and the judgment and decree of the
learned Additional District and Sessions Judge, Sivagangai, dated 26.02.2020
made in O.S.No.61 of 2015 is set aside and the matter is remanded back to the
file of the learned Additional District and Sessions Judge, Sivagangai to
re-appreciate the evidence and render a clear finding as to the entitlement of the
plaintiffs and the first defendant in respect of the first item of the suit property
and also the validity of the sale deed in respect of the first item of the suit
property executed in favour of the second defendant in clear terms.
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A.S.(MD)No.175 of 2020
16.The learned trial Judge is directed to complete the trail within a period of
one month from the date of receipt of a copy of this judgment. No costs.
08.04.2022
Index : Yes / No
Internet : Yes/ No
ias
To:
The Additional District and Sessions Court,
Sivagangai.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD)No.175 of 2020
R.N.MANJULA, J.
ias
A.S.(MD)No.175 of 2020
08.04.2022
https://www.mhc.tn.gov.in/judis
