Madras High Court
S.Jaganathan vs Jamal Kajamohideen on 26 April, 2022
SA NO.733 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26 / 04 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.733 OF 2017
AND CMP NOS.18494 OF 2017 AND 16913 OF 2021
S.Jaganathan ... Appellant
VS.
1.Jamal Kajamohideen
2.K.N.Krishnan
3.The Tahsildar
Mambalam - Guindy Taluk Office
Chennai.
4.The Sub-Registrar Office
(District Registrar Cadre)
T. Nagar, Chennai. ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, 1908, against the judgment and decree dated 23.06.2017 passed in
A.S.No.52 of 2015 on the file of the II Additional City Civil Judge at
Chennai, confirming the judgment and decree dated 07.01.2015 in
O.S.No.8128 of 2010 on the file of the XII Assistant City Civil Judge at
Chennai.
1/17
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SA NO.733 OF 2017
For Appellant : Mr.G.Mohanakrishnan
For Respondent-1 : Mr.N.Sivaprakash
JUDGMENT
Aggrieved over the concurrent findings of the Courts below,
the plaintiff has preferred the above Second Appeal.
2.For the sake of convenience, the parties are called as per
the litigative status before the Trial Court.
3.The Suit property originally was owned and possessed by
one Late M.Rajagopal, who acquired the same by virtue of a Deed of Sale
dated 12.11.1922, Document No.2955/1922. After the death of the said
M.Rajagopal, his legal heirs viz., S.R.Srinivasan, S.R.Suriyanarayanan,
S.R.Parthasarathy and Tmt.Santhammal inherited 1/4th share each in the
property. Through them, the plaintiff purchased 17/24 th share from
S.R.Suriyanarayanan, S.R.Parthasarathy and Tmt.Santhammal. The
eldest son of M.Rajagopal by name S.R.Srinivasan filed a Suit for
partition in O.S.No.2196 of 1968 and it was dismissed for default on
18.11.1974 and the Interlocutory Application filed in I.A.No.1919 of
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SA NO.733 OF 2017
1975 to set aside the order of dismissal was also dismissed for default on
21.08.1975.
4.In the meanwhile, the said S.R.Srinivasan mortgaged the
property by way of a deed of simple mortgage dated 01.03.1974
registered as Document No.330/1974 in favour of one Smt.Parvathy
Krishnan in order to discharge some other mortgage loan. Since the
mortgage was not cleared, the said Parvathy Krishnan brought the
property for sale in public auction on 31.03.1979. One K.N.Duraisamy,
became the successful bidder and took the property in public auction and
the sale deed was registered in favour of K.N.Duraisamy. Thereafter, he
filed a Suit for partition in O.S.No.10168 of 1992 and obtained a
preliminary decree on 15.11.1999 allotting 1/3rd share in his favour. He
also filed an interlocutory application in I.A.No.18337 of 2000 for
passing a final decree. As such, during the pendency of the final decree
application, K.N.Duraisamy entered into one agreement with the first
defendant on 07.03.2001 agreeing to convey the 1/3rd share in the
schedule property. Thereafter, on 30.06.2006, the final decree came to be
passed.
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SA NO.733 OF 2017
5.Since the said K.N.Duraisamy did not come forward to
execute the sale deed, the first defendant filed a suit in O.S.No.800 of
2008 on the file of IV Additional Judge, City Civil Court, Chennai, for
specific performance and the same was decreed on 22.07.2008.
Thereafter, by virtue of E.P.No.7 of 2009, the sale deed was executed in
favour of the first defendant by the Execution Court viz., IX Assistant
Judge, City Civil Court, Chennai, on 16.11.2009 through registered
Document No.2483/2009. The said sale deed is sought to be declared as
null and void by the plaintiff.
6.The defendant filed an elaborate written statement,
denying all the allegations and also the genealogy of S.M.Rajagopal
Naidu. According to him, the legal heirs of S.M.Rajagopal Naidu died
and they were survived by various legal heirs and it should be divided
among themselves. The daughter Late S.M.Rajagopal Naidu namely,
Tmt.Santhammal was not mentioned even as a co-sharer and she does not
have a share in the property. Even assuming that she has a share, she had
lost all her rights, in the suit property by way of ousted as her alleged
rights were omitted by the three sons of Late S.M.Rajagopal Naidu since
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SA NO.733 OF 2017
1968. Very particularly, when the mortgage deed was executed by one of
the sons mortgaging his 1/3rd undivided share in favour of the said
Smt.Parvathy Krishnan. Therefore, the conveyance of 17 / 24 th share in
favour of the plaintiff is not feasible, that too, by the fourth vendor, who
is said to have derived the property through a WILL executed by
Tmt.Santhammal. Therefore, Tmt.Santhammal herself has no right and as
such, the fourth vendor namely, Sulochana cannot have any right on the
alleged WILL said to have been executed by the said Tmt.Santhammal.
Therefore, at the most, the plaintiff could have purchased only 16/24 th
undivided share i.e., 2/3rd undivided share in the plaint schedule property
from the sons of S.M.Rajagopal Naidu.
7.Further, the said K.N.Duraisamy was very much alive
throughout the legal proceedings in O.S.No.10168 of 1992. The plaintiff
ought to have impleaded the legal heirs of K.N.Duraisamy, who is the
owner of 1/3rd undivided share of the property, as early as on 27.05.2001
that on the date on which the plaintiff claims that the said
K.N.Duraisamy died. The sale deed was executed by the IX Assistant
Judge, City Civil Court, Chennai, in favour of the first defendant during
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SA NO.733 OF 2017
the lifetime of K.N.Duraisamy and it cannot be declared as null and void.
On the other hand, the first defendant would make a counter claim to
declare the sale deed dated 31.03.2008 registered as Document No.703 of
2008 on the file of Sub Registrar, T.Nagar as null and void, sham and
nominal and not binding upon this defendant and for permanent
injunction.
8.The Trial Court framed appropriate issues and dismissed
the Suit and the same was confirmed by the First Appellate Court.
Aggrieved over the same, the plaintiff preferred the above Second Appeal
and it was admitted on 13.12.2021 on the following substantial questions
of law:-
"1.Whether the decree passed against the death
person is valid in law?
2.Whether the trial Court and the Appellate Court
erred in law in ignoring the fact that under Ex.A1, the
suit property was purchased by father Rajagopal Naidu
and as such the suit property is the absolute property of
Rajagopal Naidu?
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SA NO.733 OF 2017
3.Whether the trial Court and the Appellate Court
erred in law in ignoring the fact that Rajagopal died
intestate and after his life time his children namely,
Srinivasan, Suryanaryanan, Parthasarathy and
Santhammal succeeded the property by way of succession
and as such are in Joint Possession of the suit property as
evidenced under Ex.A11 Mortgage deed executed by all
four of them in favour of Co-Operative Society
mortgaging the entire schedule property?
4.Whether the trial Court and the Appellate Court
erred in law in ignoring that under Ex.A2 fact that the
plaintiff purchased the shares of Suryanarayanan and
Parthasarathy and Santhammal from the respective legal
heirs and his claim 17/24 th share in the entire suit
property constitutes lesser than 3/4 th share in the suit
property and as such he is not claiming any right over the
1/4 th share of Srinivasan?
5.Whether the trial Court and the Appellate Court
erred in law in ignoring that all the heirs of
Suryanarayanan, Parthasarathy, being the co-sharers has
acknowledged the title S.A.No.733 of 2017 and joint
possession of Santhammal as Co-sharer in the suit
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SA NO.733 OF 2017
property and put their signature in the Ex.A2 Sale Deed
and as such there is no dispute among the three sets of
heirs of Rajagopal namely Suryanarayanan,
Parthasarathy and Santhammal with respect to
entitlement of share by Sarathammal?
6.Whether the trial Court and the Appellate Court
erred in law in ignoring the fact that the first defendant
claiming lawful title under Srinivasan is claiming 1/3rd
share though in law the said Srinivasan is having title
only for 1/4th are in the suit property?
7. Whether the trial Court and the Appellate
Court erred in law in not considering the right of
Srinivasan in Executing the Ex.B1 mortgage deed dated
01.03.1974 for over the above 1/4th share the said
Srinivasan is entitled?
8. Whether the trial Court and the Appellate
Court erred in law in not considering that Ex.B1
mortgage deed is simple mortgage and as such the
possession of the property was not parted with to the
mortgagee?
9. Whether the trial Court and the Appellate court
erred in law in not considering that Ex.B2 sale deed
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SA NO.733 OF 2017
executed by mortgage by way of auction sale and as such
no steps were taken by the purchaser under Ex.B2 in
taking physical possession of the property till date?
10. Whether the trial Court and the Appellate
Court erred in law in ignoring to take that the first
defendant having claimed lawful title over 1/3rd share
in the suit property as against Santhammal is not
permitted in raining the Plea of Ouster as against the
said Santhammal?
11. Whether the trial Court and the Appellate
Court erred in law, in presuming that the theory of
Ouster has worked out as against said Santhammal of
her undivided 1/4th share in the property, in the absence
of pleadings and the proof in accordance to Section 65 of
the Limitation Act?
12. Whether the trial Court and the Appellate
Court erred in law in refusing to invoke the presumption
as to public document namely Ex.A3 - Death Certificate
of K.N.Duraiswamy registered on 29.05.2001 evidencing
the death of K.N.Duraiswamy on 27.05.2001 in
violation of Section 79 of the Indian Evidence Act,
1872?
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SA NO.733 OF 2017
13. Whether the trial Court and the Appellate
Court erred in law in holding that the Ex.B1 mortgage
deed executed by Srinivasan is genuine without going in
to the validity of the said Mortgage deed as far as the
share of Santhammal is concerned in accordance to
Section 23 of the Indian Contract Act?
14. The appellant is reversing his right to raise any
other grounds at the time of final arguments of this
appeal. "
9.Heard the submissions made on either side and perused the
materials available on record.
10.The first question of law is that whether the decree passed
against a dead person is valid in law. It is the case of the plaintiff that the
said vendor of the first defendant namely, K.N.Duraisamy died on
27.05.2001 and the death certificate dated 17.04.2008 was marked as
Ex.A3. The first defendant in his written statement would state that the
said K.N.Duraisamy was very well alive during 27.05.2001 that is during
the pendency of the entire legal proceedings in O.S.No.10168 of 1992
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SA NO.733 OF 2017
which was filed for partition against the plaintiff's vendor. The suit was
decreed on 15.11.1999. Thereafter, the said K.N.Duraisamy filed an
interlocutory application in I.A.No.18337 of 2000 for passing of final
decree. In that application for final decree, he filed another application in
I.A.No.11670 of 2004 for appointment of Advocate Commissioner for
inspecting the property and to effect partition.
11.As there had been some breach of peace created by the
defendants in that Suit, a Memo was filed on 26.09.2005 by the Advocate
Commissioner before the Court seeking permission to take assistance of
the police till the execution of the warrant of commission. When the
Memo came up before the Court on 14.10.2005, the learned counsel for
K.N.Duraisamy made an endorsement of "no objection" and accordingly,
the memo was allowed. It is relevant to note that the said K.N.Duraisamy
said to have died on 27.05.2001. But an endorsement was made on
behalf of him by the counsel on 14.10.2005.
12.Further, during cross examination P.W.1, specific
questions were addressed with regard to Ex.A3 death certificate of
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SA NO.733 OF 2017
Duraisamy. It is categorically stated that he went and enquired at
K.N.Duraisamy's house. The inmates of the house informed that the said
K.N.Duraisamy expired. Thereafter, they obtained the death certificate of
K.N.Duraisamy. Thereafter, when he applied for encumbrance certificate,
he found out that K.N.Duraisamy has purchased the suit property. In
further cross examination, it was deposed by him that the factum of death
of K.N.Duraisamy was informed by an employee of K.N.Duraisamy's
house at Cenotaph Road. When he enquired, it was informed that
K.N.Duraisamy died long back that is seven or eight year before. The first
defendant has purchased the property only in the year 2010 and denied
the suggestion that the said K.N.Duraisamy was alive till the completion
of O.S.No.800 of 2008 and that he did not die on 27.05.2001.
13.The evidence of P.W.1 would assert that the said
K.N.Duraisamy died on 27.05.2001, which is corroborated by Ex.A3
death certificate. The first defendant, who examined himself as D.W.1
would simply deny that Ex.A3 is a false document and that he has not
taken any steps to prove that the said K.N.Duraisamy was very much
alive during the institution of the suit for specific performance filed by
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SA NO.733 OF 2017
him in O.S.No.800 of 2008. During cross examination, he would state
that he was not aware that he was set exparte throughout. He would
admit that after the sale agreement entered with K.N.Duraisamy on
07.03.2001, he filed the Suit for specific performance only after a period
of seven years and obtained decree. He would deny the suggestion that it
was a collusive decree. But he has not taken any steps to prove that
K.N.Duraisamy was alive after entering into the sale agreement with the
first defendant and that he filed a Suit for specific performance against
K.N.Duraisamy during his lifetime.
14.Therefore, in the absence of any evidence that
K.N.Duraisamy was very much alive during the institution of the suit for
specific performance, the evidence of P.W.1 is considered to be credible
and supported by documentary evidence. No official witness to disprove
the document marked as Ex.A3 was also examined by the first defendant.
In that circumstances, it has to be held that the Suit filed against a dead
person and the decree obtained against a dead person and the sale deed
executed on behalf of a dead person is null and void.
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SA NO.733 OF 2017
15.The judgments relied on by the learned counsel for the
appellant in STATE TRADING CORPORATION OF INDIA LTD., VS.
K.S.VAIDYALINGAM AND OTHERS [AIR 1978 MAD 294], AMBA
BAI AND OTHERS VS. GOPAL AND OTHERS [AIR 2001 SC 2003],
T.GNANAVEL AND OTHERS VS. T.S.KANAGARAJ AND OTHERS
[2007 (4) CTC 650], M.DHANDAPANI VS. P.K.RAMAKRISHNAN
[2013 (3) LW 659] are applicable to the case on hand for the proposition
that decree against a dead person is null and void.
16.In view of the finding that the purchase of the suit
property by the first defendant through Court against a dead person, who
wa set-exparte throughout is null and void, he has no legal right to
question the purchase made by the plaintiff from the legal heirs of the
original owner. Therefore, the counter claim to declare the sale deed
executed by the legal heirs of said Late S.M.Rajagopal Naidu in favour of
the plaintiff cannot be granted. The validity of the sale can be questioned
only by the legal heirs of K.N.Duraisamy and none else. In view of the
findings, in respect of the first question of law all the other substantial
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SA NO.733 OF 2017
questions of law raised by the appellant / plaintiff does not require any
consideration.
17.Accordingly, the judgment and decree dated 23.06.2017
passed in A.S.No.52 of 2015 by the learned II Additional Judge, City
Civil Court, Chennai, confirming the judgment and decree dated
07.01.2015 passed in O.S.No.8128 of 2010 by the learned XII Assistant
Judge, City Civil Court, Chennai, stands set aside.
18.In fine, the Second Appeal is allowed. No costs.
Consequently, connected Civil Miscellaneous Petitions are closed.
26 / 04 / 2022
Index : Yes/No
Internet : Yes/No
TK
To
1.The II Additional Judge
City Civil Court
Chennai.
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SA NO.733 OF 2017
2.The XII Assistant Judge
City Civil Court
Chennai.
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SA NO.733 OF 2017
M.GOVINDARAJ, J.
TK
SA NO.733 OF 2017
26 / 04 / 2022
https://www.mhc.tn.gov.in/judis
