Madras High Court
Anusuya vs Shanthi on 28 June, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 28.06.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.31 of 2010
Anusuya ...Plaintiff / Appellant / Appellant
Vs
1.Shanthi
2.Geetha Sundar
3.Poonima Sundar ...Defendants / Respondents / Respondents
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.74 of 2005 dated 18.09.2006 on the
file of the Additional District and Sessions Court / Fast Track Court – III,
Chennai, confirming the judgment and decree made in O.S.No.6553 of
1995 dated 29.08.2003 on the file of the VI Assistant City Civil Court,
Chennai.
For Appellant : Mr.V.Subramani
For Respondents : No appearance
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The plaintiff in O.S.No.6553 of 1995 on the file of the VI Assistant
City Civil Court, Chennai which suit was dismissed on 29.08.2003 and
subsequent appeal in A.S.No.74 of 2005 on the file of the Additional District
and Sessions Court / Fast Track Court No.III, Chennai, was also dismissed
on 18.09.2006 is the appellant herein.
2.Heard the learned counsel for the appellant on the points of law
necessitating and requiring admission of the Second Appeal.
3.Even before addressing the questions raised by the learned counsel
for the appellant, it would be worthwhile to explain the reasons for
institution of the suit.
4.The appellant herein who was the plaintiff in the suit, claimed that
her father C.Chinnaraju had purchased a property at S.No.91/2, 97/1
Puliyur Village, Block No.74, Egmore – Nungambakkam Taluk, Chennai
District, Door No.9 Athirayapuram, 1st Main Road, Choolaimedu, Chennai –
https://www.mhc.tn.gov.in/judis
600 094 and Door No.2A, Athirayapuram, 2nd Main Road, Choolaimedu,
Chennai – 600 094, measuring about 9828 sq.ft. He died intestate in the
year 1973. Her mother Swarnabai had also predeceased him. There was a
litigation among the legal representatives, which included the plaintiff, her
brother and sister and they indulged in a suit for partition and separate
possession in O.S.No.1041 of 1981 before the XII Assistant City Civil
Court. A settlement was effected on 09.02.1987 and the plaintiff was
entitled to an undivided share of 1/4th share in the property was recognized
and the share was actually given to her.
5.The plaintiff however had grievances. The plaintiff then claimed that
one another brother Indirakumar who was also a bachelor had died intestate
and therefore claimed that the 1/4th share had consequently increased to 1/3rd
share. The three sharers at that particular stage were the plaintiff, her sister
and brother.
6.Thereafter, without intimating, according to the plaintiff, the
defendant entered into an agreement to sell the property and also to put up
flats and to develop the property. The plaintiff claimed that such agreements
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were without her knowledge. She had therefore issued a public notice in the
newspapers on 18.09.1993 and again on 29.06.1993. She also issued an
advocate notice and also lodged a complaint with the jurisdictional police.
7.In the meanwhile, the suit in O.S.No.1041 of 1981 in which a
Compromise had been entered into was decreed in accordance with the
compromise.
8.The plaintiff further claims that thereafter on 09.05.1994, a further
agreement was entered into according to which, she should be paid a sum of
Rs.85,000/- and pursuant to the agreement to promote the property she
should be given two separate flats. It is admitted that even on the date of the
agreement, the plaintiff had received a sum of Rs.75,000/- by way of cash
and subsequently, a sum of Rs.10,000/- was also paid by way of demand
draft.
9.However, the flats were not constructed in accordance with the time
schedule and there were issues regarding such construction. This made the
plaintiff to institute a suit seeking a declaration that the compromise
agreement which is interlinked according to the plaintiff with the
construction, was null and void and should not be recognized by the Court.
The defendants therein contested the suit.
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10.After trial the suit was dismissed, primarily because it was found
as a fact that the plaintiff had benefited under the said compromise
agreement which she wanted to be set aside by receiving a sum of
Rs.85,000/- which was paid to her and therefore, having received the said
amount, she cannot turn around and claim that the agreement is void. As on
date, it is represented that out of the two flats, the possession of one flat had
been handed over and possession of the other flat has still not been handed
over to her. There are still some issues with respect to the construction of the
flat.
11.The First Appellate Court had also considered the very same issue
and also found that the plaintiff had received and benefited by the payment
of Rs.85,000/- and had been given possession of one flat and therefore
cannot turn around and claim that the compromise agreement was void.
12.It is stated by the learned counsel for the appellant that one of the
reasons why the plaintiff claimed that the agreement is void is that it had not
been registered. But however, the parties had understood the terms of
agreement and as a matter of fact, the plaintiff had benefited from such
agreement. The plaintiff had also not taken any steps either before the Trial
Court or before the First Appellate Court to return back the possession of the
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flat or the amount received by her. She had also not protested when
possession of one of the flats was handed over to her. She is in enjoyment of
the said flat.
13.Thus in accordance with the compromise agreement which the
plaintiff seeks to set aside as null and void, she has benefited a sum of
Rs.85,000/- and she has also benefited by way of receiving one flat. The
only aspect to which she could have some grievances was that the other flat
is under construction. To that extent for the loss incurred owing to the
delay in handing over that one flat, both the Courts below granted liberty to
sue for damages.
14.The Second Appeal being an extension of the original suit, though
it should be narrowly construed and admitted only on a substantial question
of law, still since both the Courts had granted that particular permission to
the plaintiff to sue for damages, I would retain that liberty given to the
plaintiff / appellant herein and hold it is for the appellant to workout her
remedy in manner known to law.
15.The learned counsel for the appellant raised an apprehension about
the issue of limitation. But having granted permission to the appellant
herein, the sue for damages and since the appellant has been pursuing the
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relief under the hierarchy of Courts continuously, it is for the appellant to
explain the reasons, if at all the issue of limitation is put, I am confident that
it would be examined in its proper perspective. Retaining the liberty of the
appellant to sue for damages and holding that no substantial question of law
arises for admission, the Second Appeal is dismissed. No costs.
28.06.2022
Index:Yes/No
Internet:Yes/No
smv
To
1.The Additional District and Sessions Court / Fast Track Court – III,
Chennai,
2.The VI Assistant City Civil Court, Chennai.
3.The Section Officer, VR Section, Madras High Court.
https://www.mhc.tn.gov.in/judis
C.V.KARTHIKEYAN,J.
Smv
S.A.No.31 of 2010
28.06.2022
https://www.mhc.tn.gov.in/judis
