Madras High Court
S. Lalitha vs T.Durairaj on 10 June, 2022
S.A.No.356 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.06.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.356 of 2022
and C.M.P.No.7553 of 2022
1.S. Lalitha
2.S. Geetha
3.S. Lakshmi
4. Kalaivani ...Appellants
Vs
1. T.Durairaj
2. The Sub Registrar,
Sub Registrar Office,
Kundrathur,
Chennai 600 069. ... Respondents
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
judgement and decree dated 10.03.2021 passed in A.S.No.2 of 2016 on the
file of the Court of the Additional Subordinate Judge, Kancheepruam,
confirming the decree and judgment dated 16.10.2015 passed in
O.S.No.278 of 2012 on the file of the District Munsif cum Judicial
Magistrate at Sriperumpudur.
1/10
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S.A.No.356 of 2022
For Appellants : Mr. M. Manivannan
For Respondent-1 : Mr.K.Dhananjayan,Caveator.
JUDGEMENT
The un-successful defendants 1 to 4 in the Courts below are the
appellants herein before this Court.
2. The parties are referred to the same litigative status as before
the Trial Court.
3. The plaintiff had filed a suit O.S.No.278 of 2012 on the file of
the District Munsif-cum-Judicial Magistrate, Sriperumbudur for declaration
and permanent injunction. It is the case of the plaintiff that he and his
brother, Sivaraj and Selvaraj had jointly purchased the 'A' schedule property
on 06.07.1979 under a registered Sale Deed. One of the brothers, Selvaraj
died a bachelor in the year 1980 leaving behind his mother Kalammal as his
legal heir. By virtue of the above death, Kalammal jointly enjoyed the 'A'
schedule property along with the plaintiff and his brother Sivaraj.
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S.A.No.356 of 2022
Thereafter, on 29.07.1993, Kalammal and Sivaraj had executed a Release
Deed of their 2/3rd share in the 'A' schedule property in favour of the
plaintiff. By reason of the same, the plaintiff became the absolute owner of
the suit 'A' schedule property. 'B' schedule property is a part of the 'A'
schedule property. The first defendant is the wife and the defendants 2 to 4
are the daughters of Sivaraj. The defendants denied the Release Deed as
being forged and stated that the same is not binding upon them. Further,
they had started attempting to alienate 'B' schedule property by creating
forged documents. Therefore, the plaintiff has come forward with the suit
in question.
4. The defendants 1 to 4 admitted the joint purchase by the
plaintiff, Sivaraj and Selvaraj and also the fact that the share of the Sivaraj
devolved on his mother, Kalammal, on his death. The defendants denied
the execution of the Release Deed by Sivaraj. They would submit that they
are native of Karnataka and their mother tongue is Kanada, as a result of
which, they were not able to read or write Tamil language. It is the case of
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S.A.No.356 of 2022
the defendants that the plaintiff had taken advantage of this and obtained the
signature of the plaintiff's mother and Sivaraj to create the forged Release
Deed. It is their case that Sivaraj was in the habit of signing only in English
language and therefore, the plaintiff had got someone else to impersonate
the Sivaraj at the time of registration of the Sale Deed. The said Sivaraj
died on 25.06.2002 and the defendants 1 to 4 are in possession and
enjoyment of the suit property. The first defendant had executed a
Settlement Deed in favour of the defendants 2 to 4 on 25.04.2012 in respect
of 'B' schedule property and have also obtained the patta and chitta in their
name. The defendants 1 to 4 therefore sought for the dismissal of the suit.
5. The 5th defendant-Sub Registrar, Kundrathur remained
ex-parte before the Trial Court. The learned District-cum-Judicial
Magistrate, Sriperumbudur had framed the following issues:
(i) Whether the plaintiff is the absolute owner of the
suit 'B' schedule properties through Sale Deed dated
06.07.1979 and Release Deed dated 29.07.1993?
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S.A.No.356 of 2022
(ii) Whether the Release Deed has been obtained by
the plaintiff forcefully without the consent of Kalammal?
(iii) Whether the plaintiff is entitled for the relief of
declaration in respect of 'B' schedule property ?
(iv) Whether the plaintiff is entitled for the relief of
permanent injunction in respect of 'B' schedule property?
(v) Whether the plaintiff is entitled for the relief of
permanent injunction against 5th defendant from
admitted and transferring any documents in respect of 'B'
schedule property?
6. The plaintiff examined himself as P.W-1 and marked Exhibits
A1 to A9. The first defendant examined herself as D.W.1 and marked
Exhibits B1 to B7.
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S.A.No.356 of 2022
7. The learned District Munsif-cum-Judicial Magistrate,
Sriperumbudur, after considering the evidence both oral and documentary,
came to the conclusion and returned a finding that the plaintiff is the
absolute owner of the 'B' schedule property and in possession and
enjoyment of the same and that he is entitled to the relief as claimed for.
The defendants 1 to 4 had taken this judgment and decree of the trial Court
on appeal to the learned Additional Subordinate Judge, Kancheepuram in
A.S.No.2 of 2016. The learned Additional Subordinate Judge has
confirmed the judgment and decree of the trial Court and dismissed the
appeal. Challenging the same, the defendants 1 to 4 are before this Court.
8. Mr.M.Manivannan, learned counsel appearing for the
appellants would contend that the plaintiff has filed the suit nearly 19 years
after Ex-A2-Release Deed and 10 years after the death of Sivaraj. He would
contend that the plaintiff has not proved the genuineness of Ex.A2 and
further the suit was laid on the basis of an imaginary cause of action that in
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S.A.No.356 of 2022
June 2012, the defendants had created a cloud upon the title so as to bring it
within the period of Limitation. The learned counsel would further contend
that the Courts below erred in placing the onus upon the defendants 1 to 4 to
prove the genuineness of Ex.A2. He would therefore submit that the
judgment and decree of the Courts below require re-consideration and has to
be set aside. He would further submit that the substantial questions of law
have been raised in the above appeal.
9. Heard Mr.M.Manivannan, learned counsel for the appellant
and Mr.K.Dhananjayan, learned counsel for Caveator / R1 and perused the
materials available on record.
10. The plaintiff has come to the Court stating that he had become
the absolute owner of the suit 'A' schedule property by virtue of
Ex.A2-Release Deed. The defendants have admitted the fact that the
plaintiff and his brothers Sivaraj and Selvaraj had jointly purchased the
property under a registered Sale Deed dated 06.07.1979 and that Selvaraj
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S.A.No.356 of 2022
had died leaving his 1/3rd share to his mother Kalammal. Thereafter, the
said Kalammal and Sivaraj had executed a Release Deed dated 29.07.1993,
which is marked as Ex.A2. Sivaraj had died on 25.06.2002 nearly 10 years
after the execution of the Release Deed. The revenue records have also
been mutated in the name of the plaintiff after the transfer in favour of the
plaintiff. The defendants 1 to 4 would contend that the signatures in Ex.A2
are forged and that it is not signed by the said Kalammal and Sivaraj.
However, to substantiate the above statement, the defendants 1 to 4 have not
taken any steps, nor had they examined any other witness on their side.
After the execution of the Release Deed and mutation of revenue records,
Sivaraj was alive for over 10 years and during the said period, neither he nor
Kalammal had taken any steps to set aside the Release Deed, particularly, if
it is a forged one, as contended by the defendants 1 to 4. The document is a
registered document and therefore, if the defendants 1 to 4 seek to plead
against the recitals of the documents, they are duty bound to prove the same.
This onus has not been discharged by the defendants 1 to 4. Both the
Courts below have also considered the above factors and decreed the suit in
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S.A.No.356 of 2022
favour of the plaintiff. The appellants have not made out any substantial
question of law warranting the interference of this Court.
11. In the result, the Second Appeal is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
10.06.2022
Index : Yes/No
Speaking order/non-speaking order
srn
To
1. The learned Additional Subordinate Judge, Kancheepruam,
2. The learned District Munsif cum Judicial Magistrate at Sriperumpudur.
3. The Sub Registrar, Sub Registrar Office, Kundrathur, Chennai.
4. The Section Officer, V.R.Section, High Court, Madras
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S.A.No.356 of 2022
P.T.ASHA, J.,
srn
S.A.No.356 of 2022
and
C.M.P.No.7553 of 2022
10.06.2022
https://www.mhc.tn.gov.in/judis
