Madras High Court
Unnamalai vs Ramachandran (Died) on 6 July, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 06.07.2022
Coram
The HON'BLE Mr.JUSTICE C.V.KARTHIKEYAN
S.A.No.183 of 2010
and
M.P.No.3 of 2010
1.Unnamalai
2.Balaji ... Appellants
Vs
1.Ramachandran (Died)
2.Nachiammal
3.Kasinathan
4.Karthikeyan ... Respondents
(R1 viz. Ramachandran died vide
Court order dated 15.12.2021 made
in S.A.No.183 of 2010 and M.P.
No.3 of 2010)
PRAYER:The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.30 of 2008 dated 29.04.2009 on the
file of the Sub Court, Tirupattur, reversing the judgment and decree made in
O.S.No.81 of 2001 dated 31.01.2008 on the file of the District Munsif
Court, Tirupattur.
For Appellants : Mr.K.N.Nataraaj
for Mr.G.Thyagarajan
For Respondent : Mr.PA.Sudesh Kumar
Nos.2 to 4 for M/s.Sun Associates
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The plaintiffs in O.S.No.81 of 2001 on the file of the District Munsif
Court, Tirupattur, are the appellants herein. O.S.No.81 of 2001 had been
filed by the plaintiffs seeking declaration of title over the properties
mentioned in the schedule to the plaint and to grant a permanent injunction
restraining the defendants from interfering with their peaceful possession.
2.The defendants in the suit were, one Ramachandran and his wife
shown as the first and second defendants and their minor children shown as
the third and fourth defendants. The plaintiffs claimed the right of
declaration on the basis of a sale deed executed in their favour by the first
defendant on 09.10.1995. Claiming that the document conferred title on
them and also right to possess the properties, the suit had been laid for
declaration and permanent injunction.
3.The contention of the defendants was that the properties were
ancestral in nature and therefore, the first defendant had no right to execute
a sale deed with respect to the entire properties including the shares of 3 rd&
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4th defendants, who are minor children. They contended that they also had a
share in the properties and therefore, the sale deed executed by the first
defendant should be ignored and therefore, declaration cannot be granted. It
is also pleaded that there was no necessity for executing the sale deed. The
properties, for which, the parties sought mutation in the revenue records
were 3 acres of Punja land together with a right of pathway in survey No.81
in Punkampattu of Perumplli Village of Jawadhu Hills in Vellore District,
Tirupattur Taluk. The suit was part of a larger area of 4.78 acres in the said
survey Number.
4.It is seen that the right to execute the sale deed was on the basis of a
patta, which had been granted to the first defendant. Subsequent to the
execution of the sale deed, the plaintiffs had also obtained patta from the
Mandala Deputy Thasildar at Tiruparttur. Chitta and Kist receipts were also
produced in the Court. On the basis of the documents produced and the
pleadings, the trial Court/District Munsif Court, Vellore had framed the
following issues:
“ 1.Whether the plaintiffs are in possession
and enjoyment of the suit properties?
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2.Whether the sale deed dated 09.10.1995
is valid and binding on the plaintiffs?
3.Whether the signature of the defendants 1
& 2 were obtained by the 1st plaintiff for the
reason of loan as mentioned in the written
statement?
4.Whether the defendants are in possession
and enjoyment of suit property by paying kist to
the Government?
5.Whether the plaintiffs are entitled to
permanent injunction prayed for?
6.To what relief?”
5.Ex.A1 was the sale deed in favour of the plaintiffs. To establish
possession, PW2 had been examined. The learned District Munsif decreed
the suit with costs after examining the sale deed, the evidence of PW2 and
the other revenue records, particularly, patta and kist receipts. Questioning
such decree, the defendants filed A.S.No.30 of 2008. It came up for
consideration before the Sub Court, Tirupattur.
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6.One of the grounds raised in the present second appeal was that the
learned Sub Judge had not framed points for consideration under Order 41
Rule 31 CPC. It must be noted that the second appeal had not been
admitted. However, notice had been directed to the respondents and learned
counsel had also entered appearance.
7.The first appellate Court observed that even on the date of
execution of Ex.A1, one of the minor defendants, who was born on
05.08.1976, had attained the age of majority, and therefore, he should have
been included in the sale deed. It was also found that the said 4.78 acres in
Survey No.81, originally belonged to the first defendant and that, he had
been in possession of the same.
8.The evidence of the wife, who was the second defendant, was also
considered and she stated that they had two other daughters apart from the
3rd and 4th defendants. It was also stated that they were are living as a joint
family. It was also found that Exs.A9 & A10 were only xerox copies and
therefore, the learned first appellate Judge refused to take them into
consideration.
https://www.mhc.tn.gov.in/judis
9.The first point which should have been considered by the first
appellate Court was, whether the 1st defendant in the suit had a right to
execute the sale deed on the basis of the Patta in his favour.
10.The second aspect which should have been considered is, whether
on the date of execution of Ex.A1, if one of his sons had attained the age of
majority, the said son should have been joined, if at all there was a right to
execute the sale deed, in execution of the sale deed.
11.The third aspect which should have been examined is, when
another son was a minor, whether sufficient safeguards had been given in
the sale deed with respect to his right and his share in the property.
12.A further point which should have been considered is, whether the
other two daughters of the first defendant should have been included in
execution of the sale deed.
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13.The above aspects should be weighed with the right of the Karta of
a Joint Hindu Family to execute a sale deed holding that it was beneficial
for the family and further that possession was given with consent of all the
family members.
14.It is seen that out of 4.81 acres, the sale deed covered only 3 acres
and the balance 1.81 acres could also devolve on the sons or to the share of
the minor. This aspect will have to be considered by the first appellate Court
and answered.
15.The points for consideration will should be framed under Order 41
Rule 31 CPC.
16.I would therefore set aside the judgment in A.S.No.30 of 2008
dated 29.04.2009 passed by the Sub Court, Thirupattur and remand the
appeal in A.S.No.30 of 2008 back for fresh consideration. Since the parties
are litigating for nearly about two decades, the first appellate Court shall
dispose of the appeal, after receipt of the records and after counsels entered
appearance, within four months from the first date of effective hearing.
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The second appeal stands allowed. No costs. Consequently,
connected miscellaneous petition is closed.
Index:Yes/No 06.07.2022
Internet:Yes/No
sms
To
1.The Sub Court, Tirupattur.
2. The District Munsif Court, Tirupattur.
3.The Section Officer, VR Section,
Madras High Court.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
sms
S.A.No.183 of 2010
and
M.P.No.3 of 2010
06.07.2022
https://www.mhc.tn.gov.in/judis
