Madras High Court
Panchavarnam vs Sankarammal @ Tamilarasi (Died) on 8 February, 2022
S.A.(MD)No.59 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 08.02.2022
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.59 of 2013
and
M.P.(MD)No.1 of 2013
1.Panchavarnam
2.Meena
3.Kamatchiammal
4.Jayamani
5.Dhanasekaran ... Appellants
Vs.
1.Sankarammal @ Tamilarasi (Died)
2.Santhanamariammal
3.S.P.Sankaran Chettiar (Died)
4.S.P.Manivannan (Died)
5.P.Perumal Chettiar
6.Jayanthi
7.Satha Selvaraj
8.M.Nandhini Devi
9.M.Santhini Devi
10.M.Santhana Vijay Govindaram
(Respondents 8 to 10 are brought on
record as LRs of the deceased 4th
respondent vide order dated 07.04.2016
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S.A.(MD)No.59 of 2013
made in M.P.(MD)No.1 of 2015 in
S.A.(MD)No.59 of 2013 by RMDJ)
11.Ramaraju (Died)
12.Sumithra Devi
13.Manikandan
14.Ariharan ... Respondents
(Respondents 11 to 14 are brought on
record as LRs of the deceased 1st
respondent vide order dated 07.04.2016
made in C.M.P.(MD)No.2440 of 2016 in
S.A.(MD)No.59 of 2013 by RMDJ)
Prayer : Second Appeal filed under Section 100 of Civil Procedure Code,
against the judgment and decree made in A.S.No.17 of 2006 dated
30.09.2011 on the file of the Sub Court, Srivilliputtur modifying the judgment
and decree made in O.S.No.98 of 2004 dated 21.12.2005 on the file of the
Additional District Munsif, Srivilliputtur.
For Appellants : Mr.M.Thirunavukkarasu
For Respondents : Mr.V.Shathurthi
For Mr.S.Kadarkari for R2, 12 to 14.
Mr.M.Sridharan for R6
Mr.G.Vasudevan for R7
Mr.H.Arumugam for R8 to 10
No appearance for R5.
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S.A.(MD)No.59 of 2013
JUDGEMENT
This second appeal arises of out O.S.No.98 of 2004 on the file of the
Additional District Munsif Court, Srivilliputtur. The suit properties originally
belonged to one Satha Perumal Chettiar. He was blessed with three children
namely, Ramaiah Chettiar, Perumal Chettiar and Sankaran Chettiar. Sankaran
Chettiar was blessed with two sons and two daughters namely, Manivannan,
Satha Selvaraj, Sankarammal and Santhanamariammal. Partition took place
among three sons of Satha Perumal Chettiar in the year 1969. Under
Ex.P1/Ex.A9 dated 29.03.1969, Sankaran Chettiar was given life estate in
respect of the properties described as 'third schedule' to the said partition
deed. Absolute reminder was given in respect of the third schedule properties
to his children. The third schedule of Ex.A9/Ex.P1 contained as many as 14
items. Sankaran Chettiar dealt with quite a few of them. We are not
concerned with all the alienations in this second appeal. We are concerned
only with the alienations made vide Ex.A7 and Ex.A8 in favour of the fourth
and fifth defendants.
2.The suit was filed by the two daughters and one son of Sankaran
Chettiar. They felt aggrieved by the alienations made by their father. The suit
prayer was for declaring that the alienations made by Sankaran Chettiar are
void ab inito and not binding on them and for the relief of permanent
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S.A.(MD)No.59 of 2013
injunction, recovery of possession and mandatory injunction. The first
defendant was Sankaran Chettiar, while the second defendant was the brother
of the plaintiffs namely, Manivannan. The purchasers under Exs.A7 and A8
were Balaiah Nadar and Panchavarnam, the fourth and fifth defendants.
Written statements were filed controverting the plaint averments. A counter
claim was also sought for by the father/D1. The plaintiffs filed a reply
statement. Based on the rival pleadings, as many as eight issues were
framed.
3.The first plaintiff/Sankarammal @ Tamilarasi examined herself as
P.W.1. Exs.A1 to A9 were marked. The father/Sankaran Chettiar examined
himself as D.W.1. The fourth defendant/Balaiah Nadar examined himself as
D.W.3. Two other witnesses were examined on the side of the defendants.
Exs.B1 to B36 were marked.
4.By judgment and decree dated 21.12.2005, the trial Court partly
decreed the suit and dismissed the counter claim. The trial Court granted the
relief of permanent injunction alone and denied the other reliefs. Aggrieved
by the same, plaintiffs 1 and 2 filed A.S.No.17 of 2006 before the Sub Court,
Srivilliputhur. Sankaran Chettiar/first defendant filed cross appeal. The
appeal and cross appeal were disposed of by the first appellate Court on
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S.A.(MD)No.59 of 2013
30.09.2011. The first appellate Court granted the relief of declaration and
confirmed the decree of permanent injunction. It however denied the relief of
mandatory injunction as well as recovery of possession on the ground that the
first defendant/father was very much alive.
5.Even during the pendency of the first appeal, Balaiah Nadar had
passed away. Panchavarnam is none other than the wife of Balaiah Nadar.
Their children were brought on record. This second appeal was filed by
Panchavarnam and her children. This second appeal was admitted on the
following substantial questions of law:-
“(a)Whether the lower appellate Court is right in
granting the relief of declaration of the suit properties by
holding that the alienation and encumbrances made by the first
defendant in favour of the defendants 3 to 5 are not valid in
law and binding upon the shares of the plaintiffs 1 & 2?
(b)Whether the defendants 4 & 5 are not the bona fide
purchasers of the suit properties item Nos.10 & 14 for a valid
sale consideration”
6.Heard the learned counsel for the appellants. He 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 appellants
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S.A.(MD)No.59 of 2013
and set aside the judgments and decree passed by the Courts below insofar
as they are concerned.
7.Per contra, the learned counsel for the contesting respondents
submitted that the impugned judgment and decree passed by the first
appellate Court do not call for any interference.
8.I carefully considered the rival contentions and went through the
evidence on record. There is and there can be no dispute that Sankaran
Chettiar was granted only life estate in respect of the suit properties under
Ex.A9/Ex.B1. He had no authority whatsoever to alienate the suit properties.
Yet he chose to do so. Therefore, the first appellate Court rightly came to the
conclusion that the alienations made by him are not binding on his children.
It also rightly denied the relief of recovery of possession and mandatory
injunction because the cause of action for such reliefs would arise only on the
demise of Sankaran Chettiar. Sankaran Chettiar was admittedly alive when
the suit was filed. It was he who filed the cross appeal. He is said to have
passed away only on 26.10.2018. Therefore, the right to seek recovery of
possession by the children of Sankaran Chettiar/plaintiffs would arise only on
his demise and not till then. It was for this reason that the first appellate
Court negatived those reliefs.
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S.A.(MD)No.59 of 2013
9.Now the question that arises for consideration is whether the relief of
declaration could have been granted against the present appellants. As
already noted, we are not concerned with the other alienations made by
Sankaran Chettiar. What is to be considered is the validity of the alienation
made by Sankaran Chettiar under Exs.A7 and A8. Ex.A8 is dated 21.09.1982.
Ex.A7 is dated 26.11.1990. The suit was filed on 18.02.1998. I carefully
went through the plaint averments. To seek the relief of declaration, one must
move the Court within a period of three years. Of course, the period of
limitation would start running from the date of knowledge. When the suit is
instituted after the expiration of the period prescribed by the law of limitation,
the plaintiff shall show the ground upon which exemption from such law is
claimed (Order VII Rule 6 of CPC). If the instrument in respect of which
declaration is sought was executed beyond the period of three years from the
date of filing of the suit, the suit will be time barred on the face of it. To
bring it within limitation, there must be pleading that the plaintiff got
knowledge of the facts constituting the cause of action only within three years
from the date of filing of the plaint. If such pleadings are absent, the court
cannot grant the relief of declaration. In this case, the plaintiffs have not
made any averment that they became aware of the execution of Exs.A7 and
A8 within three years prior to the filing of the suit. If such an averment had
been made, then certainly the burden would have been on the contesting
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S.A.(MD)No.59 of 2013
defendants to show that the suit was on the face of it barred by limitation.
This aspect of the matter was not taken note of by the first appellate Court.
Therefore, I have to necessarily interfere with the impugned judgment and
decree. I answer the substantial questions of law in favour of the appellants.
The impugned judgment and decree is set aside insofar as the appellants are
concerned. However, this will not make any difference to the plaintiffs 1 and
2 or their legal heirs. Sankaran Chettiar had passed away only in the year
2018. If any suit for recovery of possession is filed within twelve years from
the date of his death, the said suit is bound to be decreed. The rights of the
plaintiffs 1 and 2 or their legal heirs to recover the properties will remain
intact.
10.With this observation and clarification in favour of the plaintiffs 1
and 2, the judgment and decree passed by the first appellate is set aside
insofar as the appellants are concerned and the second appeal is allowed. The
third plaintiff did not file any appeal questioning the judgment and decree of
the trial Court. It is also stated that the third plaintiff is party to Ex.A7. From
this one can safely conclude that the third plaintiff was fully aware of
alienations made by his father and that alienations were done with his
knowledge. Therefore, he cannot impeach Ex.A7 and Ex.A8 in so far as his
share is concerned. Same is the case with the second defendant/Manivannan
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S.A.(MD)No.59 of 2013
who was a party to both the documents. 50% of the appellants' share in the
properties covered under Exs.A7 and A8 is intact. The contest revolves
around the remaining 50% of the share only. No costs. Consequently,
connected miscellaneous petition is closed.
08.02.2022
Index : Yes / No
Internet : Yes/ No
ias
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy
of the order that is presented is the correct copy, shall
be the responsibility of the advocate/litigant concerned.
Note 2 : Web copy of this order shall be uploaded
immediately.
To:
1.The Sub Court, Srivilliputtur.
2.The Additional District Munsif Court,
Srivilliputtur.
Copy to:
The Record Keeper, V.R. Section,
Madurai Bench of Madras High Court, Madurai.
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S.A.(MD)No.59 of 2013
G.R.SWAMINATHAN, J.
ias
S.A.(MD)No.59 of 2013
08.02.2022
https://www.mhc.tn.gov.in/judis
