Madras High Court
J.Prabhavathi vs Menaka on 8 June, 2022
S.A.No.343 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.343 of 2020
and C.M.P.No.6976 of 2020
J.Prabhavathi ...Appellant
Vs
1. Menaka
2. Sujatha
3. Gajalakshmi
4. Hemamalini
5. Kartheesan
6. Venkatesan
7. M.Srikanth ... Respondents
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
judgement and decree dated 24.04.2019 made in A.S.No.54 of 2019 on the
file of the learned XVII Additional Judge, City Civil Judge, Chennai in
confirming the judgment and decree dated 19.02.2018 made in
O.S.No.11487 of 2009 on the file of the VII Assistant Judge, City Civil
Court, Chennai.
For Appellant : Mr. K.V.Sundararajan
JUDGEMENT
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S.A.No.343 of 2020
The un-successful plaintiff before both the Courts below is the
appellant before this Court.
2. The parties are referred in the same rank and array as before the
trial Court.
3. The second appeal arises against the judgment and decree in
O.S.No.11487 of 2009 on the file of the VII Assistant Judge, City Civil
Court, Chennai, which was confirmed by the judgment decree in A.S.No.54
of 2019 by the XVII Additional Judge, City Civil Court, Chennai
Plaintiff's case:
(i) It is the case of the plaintiff that the suit schedule property
belonged to her grand father one Sundaravelu. Sundaravelu died intestate
and his property had devolved upon his wife Govindammal and Children,
namely, Gemburani, S.Janakiraman, S.Vivekanandan, S.Sakunthala,
Logidesan and Sarojini. The plaintiff is the daughter of S.Janakiraman, who
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S.A.No.343 of 2020
died in the year 1962, leaving behind her as his only surviving legal heir.
The plaintiff would submit that her grand mother Govindammal and the
daughters of Sundaravelu had executed a Release Deed in favour of
Vivekanandan and Logidasan, the sons of Sundaravelu under a registered
document bearing No.1234 of 1968 on the file of the Sub Registrar Office,
Periamet. Thereafter, the said Vivekanandan, Logidasan, Govindammal and
the plaintiff had executed a Mortgage Deed in respect of the said property
(A schedule property) in favour of one Alamelu Ammal through a registered
document of the same year.
(ii) It is the case of the plaintiff that after the demise of her father,
she was living with her paternal uncle, Vivekanandan and Logidasan. While
in their care and custody, the plaintiff had been coerced into executing a
document, which was said to be a security for a loan. Believing the above
statement, she had affixed her signature to the said Deed. The said
document has been obtained by fraud and deceit on the plaintiff. Pursuant
to this fraudulent document, the plaintiff came to learn that there were
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S.A.No.343 of 2020
several other transactions that had taken place in respect of the suit schedule
property and one of this was sale executed by her paternal grandmother and
paternal uncle, Vivekanandan in favour of other paternal uncle Logidasan on
04.12.1985. She would further contend that these documents would go to
show that the said Logidasan had only a limited right to 'A' schedule
property. Govindammal died on 09.03.1987 and the said Vivekanandan
died as a bachelor in the year 1980. Thereafter, Logidasan also passed
away. It is the case of the plaintiff that the said Govindammal and
Vivekanandan had not executed any document in respect of their share in 'A'
schedule mentioned property in favour of any person.
(iii) In the mean while, the plaintiff came to learn that the
defendants were taking emergent steps to sell the suit schedule property.
Immediately, she issued a telegraphic notice calling upon them not to
alienate the 'A' schedule property. The plaintiff had also filed a suit for bare
injunction in O.S.No.2189 of 2005 on the file of the XIII Assistant Judge,
City Civil Court, Chennai. The suit was decreed by a judgment dated
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S.A.No.343 of 2020
23.03.2007. There is no appeal against the said judgment.
(iv) Once again when the plaintiff came to learn that the defendants
were attempting to demolish the superstructure, she had filed O.S.No.4263
of 2007 on the file of the VII Assistant Judge, City Civil Court, Chennai for
permanent injunction restraining the defendants from demolishing the
existing building and putting up a new construction. This suit was also
decreed and there is no appeal against the same.
(v) The plaintiff would submit that the deceased Logidasan had a
1/3rd share in the landed property of 'A' schedule and the remaining extent
belonged to late Vivekanandan and late Govindammal. The plaintiff has a
1/2 share in the remaining 2/3rd share, since she being the only child of
Janaki Raman. Despite request to partition the suit, the plaintiff has not
come forward to partition the same. Therefore, the plaintiff has filed the
suit.
Defendants' case:
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S.A.No.343 of 2020
4. The defendants have jointly filed a written statement denying
the right of the plaintiff to the suit property. It is their categoric case that the
wife of Sundaravelu and his daughters had executed a Release Deed in
favour of his sons, Vivekanandan and Logidasan. The Mortgage Deed
pleaded by the plaintiff was denied as false. It is also their case that at the
time of the death of plaintiff's father, she was residing with her grand
mother. Thereafter, the Release Deed had been executed by the plaintiff in
favour of the defendants 2 to 5. The defendants would further submit that
the suit is hopelessly barred by limitation. The defendants would submit that
they are in possession and enjoyment of the suit property and had put up a
superstructure thereon and are also assessed to tax. Therefore, they sought
for dismissal of the suit.
5. The learned VII Assistant Judge, City Civil Court, Chennai had
framed an issue as to whether the plaintiff is entitled to a decree for
partition. The learned Judge ultimately dismissed the suit by holding that
the plaintiff had herself released her interest in the property in favour of her
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S.A.No.343 of 2020
paternal grand mother and paternal uncle as early as in the year 1975.
Therefore, she had no right to seek a decree for partition.
6. Aggrieved by the said judgment, the plaintiff had filed
A.S.No.54 of 2019 on the file of the XVII Additional Judge, City Civil
Court, Chennai. The Appellate Judge also confirmed the judgment and
decree of the trial Court. It is aggrieved by the same that the plaintiff is
before this Court.
7. Heard Mr.K.V.Sundararajan, learned counsel for the appellant,
who made his submissions for admitting the above Second Appeal.
8. There is no quarrel between the parties regarding the ownership
of the suit property by Sundaravelu. The relationship of the parties to the
proceedings is also not in question. The defence to the claim of the plaintiff
is that she has already executed a Release Deed in favour of Govindammal.
The Release Deed has been executed by the plaintiff (which she claims as a
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S.A.No.343 of 2020
Mortgage Deed) in the year 1968, however, the plaintiff has not taken any
steps whatsoever to set aside the said Deed or to release the mortgage as
claimed by her. Further, she has not sought to declare the said Deed as null
and void as the same has been obtained by fraud and mis-
representation. The suit as such has been filed only in the year 2009.
Therefore, the same is barred by limitation and has been made even beyond
the period of 3 years from the date of knowledge gained by the plaintiff.
9. It is also held by the Courts below that the suit is bad for
non-joinder of all children of Sundaravelu and their respective legal heirs,
especially, when the suit is one for a partition. Therefore, the findings of the
Courts below that the suit is barred by non-joinder of necessary parties has
to necessarily be confirmed. Further, the plaintiff having given up her right
over the suit property cannot seek partition by simply contending that the
Deed executed by her is null and void. The Courts below have rightly
considered the above factors and non-suited the plaintiff. I see no reason
whatsoever to interfere with this concurrent findings of Courts below, as the
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S.A.No.343 of 2020
appellant has not been able to establish that the said judgment and decree is
perverse. That apart, the plaintiff has not made out any questions of law,
much less, substantial questions of law.
10 In the result, the Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
08.06.2022
Index : Yes/No
Speaking order/non-speaking order
srn
To
1. The learned XVII Additional Judge, City Civil Judge, Chennai
2. The VII Assistant Judge, City Civil Court, Chennai.
3. The Section Officer, V.R.Section, High Court, Madras
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S.A.No.343 of 2020
P.T.ASHA, J.,
srn
S.A.No.343 of 2020
and
C.M.P.No.6976 of 2020
08.06.2022
https://www.mhc.tn.gov.in/judis
