Madras High Court
Kanagaraj vs T.Kothandapani on 30 June, 2022
C.R.P(PD).No.930 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 30.06.2022
CORAM :
THE HONOURABLE MS. JUSTICE R.N.MANJULA
C.R.P(PD).No.930 of 2022
and C.M.P.No.4740 of 2022
1. Kanagaraj
2. Leena Sujathamary ... Petitioners
Vs
T.Kothandapani ... Respondent
Prayer:- Civil Revision Petition is filed under Article 227 of the Constitution of
India, pleased to set aside the order and decreetal order passed in I.A.No.113 of
2021 in O.S.No.43 of 2021 on the file of the District Munsif Cum Judicial
Magistrate, Thirukalukundram dated 02.03.2022.
For Petitioners : Mr.C.Jagadish
For Respondent : Mr.G.Narayanan
ORDER
This Civil Revision Petition has been preferred challenging the order of the
learned District Munsif Cum Judicial Magistrate, Thirukalukundram, dated
02.03.2022 made in I.A.No.113 of 2021 in O.S.No.43 of 2021.
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C.R.P(PD).No.930 of 2022
2. The revision petitioners are the defendants in the suit. The
respondent/plaintiff has filed a suit to declare the Sale Deed dated 19.03.2004 as
null and void and permanent injunction restraining the defendants 1 and 2 from
interfering with the peaceful possession and enjoyment of the plaintiff over the suit
property. The revision petitioners/defendants filed a petition in I.A.No.113 of 2021
to reject the plaint and the same was dismissed. Aggrieved over that, the petitioners
filed this Civil Revision Petition to set aside the impugned order.
3. Learned counsel for the petitioners submitted that despite the sale deed
was of the date 19.03.2004, the plaintiff had the knowledge about the sale deed
only in the year 2014; the sale deed seems to have got executed on the same day
when the discharge receipt of the mortgage also executed; the father of the plaintiff
was made to believe that the sale deed also a document related to the discharge of
the mortgage and thus was mislead him to execute the sale deed and hence, the suit
filed by the plaintiff is maintainable. In support of his above contention, he also
relied upon the judgment of the Hon'ble Supreme Court in the case of “Dahiben vs
Arvindbhai Kalyanji Bhanusali (Gajra) Dead reported (2020) 7 SCC 366”.
4. Learned counsel for the respondent submitted that the father of the
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C.R.P(PD).No.930 of 2022
revision petitioners was the lawful owner of the property and even during his
lifetime, he had executed the sale deed in favour of the respondent/plaintiff on
19.03.2004; prior to the execution of the sale deed, the father of the plaintiff had
obtained a loan of Rs.60,000/- (Rupees Sixty Thousand only) from the 1 st
defendant and executed a Mortgage Deed dated 22.03.2003 and deposited the title
deeds of the suit property with the 1st defendant; subsequently, he sold the suit
property itself to the 1st defendant and by virtue of the sale deed, the earlier
mortgage also got discharged; having waited till the death of the father, the
plaintiff, who is the son of the vendor of the 1st defendant, has filed the frivolous
suit to declare the sale deed dated 19.03.2004 as null and void;
5. The facts which are not in dispute are that the suit property was originally
owned by one Thamburatti, who is the father of the plaintiff. The sale deed was
executed on 19.03.2004 during the lifetime of Thamburatti. Thamburatti was alive
till 30.11.2007 and during the lifetime of Thamburatti, the plaintiff did not
challenge the sale deed. Neither the defendants have filed any suit for recovery of
possession, by claiming that the father of the plaintiff continued to have kept the
possession of the suit property with himself, even after executing the sale deed
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C.R.P(PD).No.930 of 2022
dated 19.03.2004 in favour of the 1st defendant.
6. During the lifetime of Thamburatti, he obtained a loan of Rs.60,000/-
from the 1st defendant by executing a mortgage deed dated 22.03.2003. The said
mortgage got discharged on the day when the sale deed was also executed i.e., on
19.03.2004. It is in practice that whenever a sale is made in respect of a property,
the subsisting mortgage on the property will be discharged through appropriating a
part of the sale consideration towards discharging the mortgage loan.
7. If the 1st defendant had filed any suit for recovery of possession during the
lifetime of Thamburatti as stated already, it is understandable that Thamburatti
had some stand adverse to the sale deed. The learned counsel for the petitioners
made it clear that on the day of executing the sale deed itself, the possession of the
suit property was handed over to the first defendant and that would show the
genuineness and completion of the sale transaction.
8. However, there was a police complaint given by the daughters of
Thamburatti against the defendants 1 and 2 by claiming that they are the owners of
the property and they are entitled for a share in the suit property; no action has
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C.R.P(PD).No.930 of 2022
been taken on the complaint; neither the complainants seemed to have pursued the
complaint. So, this would also confirm that the family members of Thamburatti
had the knowledge about the sale deed even in the year 2013. When the daughters,
who are the female members of the family, had the knowledge, naturally the male
member of the family viz., the plaintiff herein could have also got the knowledge
about the sale deed. Therefore, the plaint seems to be only a weak attempt to
disturb the completed sale transaction through a clever drafting.
9. In the result, this this Civil Revision Petition stands allowed and the order
of the learned District Munsif Cum Judicial Magistrate, Thirukalukundram, dated
02.03.2022 made in I.A.No.113 of 2021 in O.S.No.43 of 2021 is hereby set aside.
Consequently, the connected Miscellaneous Petition is closed. No costs.
30.06.2022
rgi
Index : Yes
Internet : Yes
Speaking Order
R.N.MANJULA, J.
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C.R.P(PD).No.930 of 2022
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To
1. The District Munsif Cum Judicial Magistrate,
Thirukalukundram.
2. The Section Officer,
VR Section, Madras High Court,
Chennai.
C.R.P(PD).No.930 of 2022
and C.M.P.No.4740 of 2022
30.06.2022
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