Madras High Court
Sujatha vs Somu on 4 March, 2022
S.A.No.97 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 04.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
S.A.No.97 of 2016
and
C.M.P.No.2345 of 2016
Sujatha ... Appellant
Vs.
1.Somu
2.T.S.Subramani
3.R.Jayakumar
4.Lakshmi
5.Kanniamma
6.Amirtham
7.Rani ... Respondents
PRAYER: Second Appeal filed under Section 100 of C.P.C., against the
judgment and decree dated 04.09.2015 made in A.S.No.31 of 2013, on the
file of Sub-Court, Tiruttani in confirming the judgment and decree dated
30.11.2011 made in O.S.No.30 of 2006, on the file of District Munsif Court,
Tiruttani.
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For Appellant : Mr.A.Gouthaman
For Respondents : Mr.M.Kalyanasundaram, Senior Counsel
for Mr.K.Srinivasan
**********
JUDGMENT
The plaintiff is the appellant is this second appeal.
2. The case of the plaintiff is that the suit properties are ancestral
properties. The plaintiff was married on 22.03.1991 and she was living in her
matrimonial home. The plaintiff came to know that her father viz., 1st
defendant had sold the entire suit property to the 3rd defendant and the 3rd
defendant in turn had sold the properties to the 4th defendant.
3. The grievance of the plaintiff is that the properties are ancestral
properties and she is entitled for a share as a daughter in her capacity as
coparcener both under the 1989 State amendment as well as 2005 Central
amendment to the Hindu Succession Act, 1956. Therefore, according to the
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plaintiff, the sale deed that was executed by the 1st defendant in favour of the
3rd defendant will not bind her insofar as her share in the property is
concerned and it can be dis-regarded. Accordingly, the suit came to be filed
seeking for partition and for allotment of 1/3rd share in the suit property.
4. The 1st defendant filed a written statement. The 1st defendant is the
father of the plaintiff. He took a stand to the effect that he never intended to
sell the property to the 3rd defendant and he had only created a mortgage and
was under the impression that the document pertains to usufructuary
mortgage. Therefore, the 1st defendant has come up with the plea that the sale
deed that was executed in favour of the 3rd defendant was sham and nominal
and not valid and binding. The 1st defendant has virtually supported the case
of the plaintiff.
5. The 2nd defendant who is the brother of the plaintiff has also taken
the same stand as that of the 1st defendant and he has also sought for 1/3rd
share in the suit property.
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6. The 3rd defendant who was the purchaser from the 1st defendant has
filed a written statement. He has taken a stand that the properties in question
are individual properties of the 1st defendant and he had the absolute right to
deal with the property. The further stand taken by the 3 rd defendant is that he
had paid a valid sale consideration to the 1st defendant and the money was
utilized for meeting the family expenses and necessities and for discharge of
the debt. The 3rd defendant also took a stand to the effect that the sale deed
was executed in the year 1992 and the subsequent sale deed in favour of the
4th defendant was executed in the year 1999 and the plaintiff being aware
about the transactions, had chosen to file the suit after nearly 14 years in the
year 2006. The 3rd defendant has stated that the suit itself is not maintainable
and the plaintiff does not have any right to claim for a share and accordingly
sought for the dismissal of the suit.
7. Both the Courts below on considering the facts and circumstances of
the case and after taking into consideration the oral and documentary
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evidence, concurrently held against the plaintiff and the suit was dismissed.
Aggrieved by the same, the plaintiff has filed this second appeal.
8. The learned counsel for the appellant submitted that the plaintiff was
married only in the year 1991, and in order to prove the same, the marriage
invitation was filed as Ex.A6 and PW2 was also examined to prove the
marriage. The learned counsel submitted that the plaintiff is entitled to a
share as a coparcener in the joint family property by virtue of the 1989 Tamil
Nadu Amendment to the Hindu Succession Act. It was submitted that the 1st
defendant did not have any right to deal with the share of the plaintiff in the
suit properties and the plaintiff was not even a party to the sale deed and
hence, the sale deed does not bind the plaintiff in any manner. The learned
counsel submitted that the sale deed should be treated as void abinitio insofar
as the share of the plaintiff is concerned and therefore there is no necessity to
challenge the sale deed that was executed by the 1st defendant in favour of the
3rd defendant. The learned counsel submitted that both the Courts below did
not take into consideration the effect of the 1989 Tamil Nadu amendment and
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2005 Central Amendment, wherein, a daughter gets right by birth in the joint
family property and hence both the Courts erroneously misconstrued the
same and denied the share to which the plaintiff was entitled for. The learned
counsel substantiated his submission, relying upon the judgments in
a) Rohit Chauhan Vs. Surinder Singh & others
reported in 2013 (4) CTC 539
b) K.M.Thangavel and others Vs. K.T.Udayakumar
and another reported in 2014 (2) CTC 113 and
c) Vineeta Sharma Vs. Rakesh Sharma and others
reported in 2020 (5) CTC 302.
9. Per contra, Mr.M.Kalyanasundaram, learned Senior Counsel
appearing on behalf of the respondents 2 and 3 (defendants 3 and 4)
submitted that both the Courts below had taken into consideration the
evidence available on record and had come to a correct conclusion that the
plaintiff is not entitled for any share in the suit property. The learned Senior
Counsel further submitted that the sale deed itself was executed in favour of
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the 3rd defendant by the 1st defendant in order to meet the family expenses and
the expenses that were incurred due to the marriage of the daughters. Hence,
the property was alienated by the karta of the family to meet the basic
necessities of the family and even if the properties are taken to be joint family
properties, such an alienation is permitted and the plaintiff who is aware of
the same did not even challenge the sale deed executed in favour of the 3rd
defendant and on that ground alone, the suit was liable to be dismissed. The
learned Senior Counsel further submitted that the sale deed was executed in
favour of the 3rd defendant in the year 1992 and the suit was filed after 14
years in the year 2006 and even assuming that the plaintiff had title over the
property with respect to her share, the 3rd and 4th defendants are in hostile
possession and enjoyment of the property and they should be construed to
have perfected their title through adverse possession as against the plaintiff.
The learned Senior Counsel concluded his arguments by submitting that there
are absolutely no merits in this second appeal and the same is liable to be
dismissed by this Court.
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10. This Court has carefully considered the submissions made on either
side and the materials available on record.
11. The decisions that have been relied upon by the learned counsel for
the appellant deals with the right of the daughter in a joint family property in
her capacity as a coparcener and how such a right is acquired by birth. There
is absolutely no difficulty in understanding the scope of the State
Amendment that took place in the year 1989 which gave the right to the un-
married daughters and the Central Amendment which came into effect in the
year 2005 and which gave such coparcenary rights to both the married and
un-married daughters. The only issue that has to be considered in the present
case is as to whether the claim made by the plaintiff deserves to be
entertained on the facts of the case and thereafter see if the judgments relied
upon by the learned counsel for the appellant comes to the aid of the plaintiff.
12. Both the Courts below have come to a conclusion that the
properties in question are joint family properties. The plaintiff claims that
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she was married on 22.03.1991. In order to prove the same, she has marked
Ex.A6 which is the marriage invitation of the plaintiff and has also examined
PW2 who is said to have attended the marriage in the year 1991. In view of
the same, according to the plaintiff, she is entitled for a share in the
properties in her capacity as a coparcener by virtue of the Tamil Nadu
Amendment that took place in the year 1989 and which gave the coparcenary
right to un-married daughters in the joint family property.
13. There is no dispute with regard to the fact that the 1st defendant for
himself and as a guardian of the 2nd defendant, who is his son, had executed a
sale deed dated 27.12.1992 in favour of the 3rd defendant and the same has
been marked as Ex.B1. It is important to take note of the recitals in the said
sale deed and for proper appreciation, the same is extracted hereunder:-
21/12/1992Mapuj;jpj; bjhy;yhapuj;jpj;
bjhd;D}w;wp ,buz;lhk; tUlk; ork;gh;
khjk; ,Utj;jp xd;whk; njjp jpUj;jzp
jhY}f;fh brUf;fQq}h; fpuhkj;jpy;
trpf;Fk; td;aFyk; fc&j;hpa gaph;
j";rht{h; rncwh njtbul;oFkhuh;
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T.S.Rg;gpukzpak; mth;fSf;F jpUj;jzp
jhYf;fh brUf;fQq}h; fpuhkj;jpy;
trpf;Fk; td;a Fy fc&j;hpa gaph;
bfhd;nzhp KUfh bul;o Fkhuh;
nfhtpe;J bul;o (1) nkw;gloahhpd; kfd;
ikzh; Rkhh; 12 tUlk; taJs;s
nrhKf;F fhh;oad; jfg;gzhh; nfhtpe;J
bul;o Mfpa ehd; vGjpf; bfhLj;j
tpf;fpuagj;jpuk; ahbjdpy; vd;
mtruepkpj;jpak; vd; kfs;fSf;F
jpUkzk; bra;jfld;fs;
jPh;gtjw;f;fhft[k; vd;
Flk;gbryt[fSf;fhft[k; cd;dplk; ehd;
buhf;fkhf bgw;Wf;bfhz;l U:/45800-?
VGj;jhy; ehw;gj;ije;jhapuj;jp vl;Qq}h;
U:ghapfSf;F ,jdoapy; bc&l;a{ypy; fz;l
epyj;ij cdf;F tpf;fpuak; bra;J cd;
RthjPdk; bra;J tpl;nld;/ Mfnt. ,J
Kjy; nkw;go epyj;ij ePh; RthjPdk;
bra;Jf; bfhz;L rhFgo tifauhf;fs;
bra;Jf; bfhz;L rh;f;fhh;j;jPh;it
brYj;jp bfhz;L jhdhjp tpza
tpf;fpua';fSf;F nahf;akhft[k; cd;g[j;jpu
bgsj;jpu ghuk;gh;akhft[k;
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KGchpikfnshL Mz;L mDgtpj;Jf;
bfhs;s ntz;oaJ/ ePh; mDgtpf;Fk;
fhyj;jpy; vd;dhyhfpYk; vd;
thhpRjhuuhyhfpYk; VnjDk; jfuhUfs;
Vw;gl;lhy; nkw;go jfuhUfSf;F ehd;
Kd;dpd;W vd; brhe;j brytpy; nkw;go
jfuhUfisj; jPh;j;Jf; bfhLf;fpnwd;/
,e;jg;gof;F vd; kdjhu rk;kjpj;J
vGjpbfhLj;j tpf;fpuagj;jpuk;/
14. Both the Courts below on going through the recitals of the sale
deed had come to a categoric conclusion that the suit properties were sold by
the 1st defendant to meet the marriage expenses of his daughters and to meet
the family expenses and for settling the debts that was incurred towards the
marriage and family expenses. Hence, both the Courts found that the 1 st
defendant as the karta of the family had sold the properties for legal
necessity. There is no dispute with regard to the fact that the karta of the
joint family property can always deal with the property for the benefit of all
the others and in order to meet the legal necessity and to meet the family
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expenses.
15. Both the Court held that since the document has been brought on
record, the contents of the document cannot be disregarded and the intention
behind the same has to be understood from the recitals in the document.
Accordingly, both the Courts held that the karta of the Hindu undivided joint
family has got every right to sell the properties and the co-sharers cannot
challenge the alienation.
16. This Court does not find any illegality in the findings of both the
Courts below in this regard. The intention behind the execution of the sale
deed by the 1st respondent in favour of the 3rd respondent is clear from the
sale deed itself. The evidence of PW1 also shows that she was aware about
the sale of the property and the same being enjoyed by the 3rd and 4th
defendants. While so, the plaintiff waited for nearly 14 years to file the
present suit seeking for a share in the property. In the mean time, the 3rd
defendant had alienated the suit properties in favour of the 4 th defendant by
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virtue of the sale deed dated 23.08.1999, which was marked as Ex.B2.
17. If the case of the plaintiff is accepted and for the sake of argument,
it is taken that the share of the plaintiff is also involved in the sale deed that
was executed in favour of the 3rd defendant, this Court has already held that
the sale deed was executed to meet the family expenses and legal necessities.
In view of the same, the transaction cannot be held to be void abinitio. At the
best, it can only be held to be a voidable transaction. In the case of voidable
transaction, the transaction cannot be disregarded and it has to be challenged
in the manner known to law. The plaintiff after knowing about the
transaction, for reasons best known to her, waited for 14 years and did not
even challenge the sale deed executed in favour of the 3 rd defendant by her
father. This is yet another factum which stares at the face of the plaintiff.
18. In the considered view of this Court, the suit that was initiated by
the plaintiff is a clear abuse of process of Court. This is quiet evident from
the written statement of the 1st defendant. The 1st defendant who had
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executed the sale deed in favour of the 3rd defendant in the year 1992
remained silent right through. All of a sudden he takes a stand in the written
statement as if he was under the impression that it was only a usufructuary
mortgage created in favour of the 3rd defendant and he never knew that it was
a sale deed. The averments made by the 1st defendant in the written statement
is mischievous and there is more to this than what meets the eye. The 1 st and
2nd defendants turn around and disregard the sale deed and they start
supporting the case of the plaintiff and seek for 1/3 rd share in the suit
properties which was alienated 14 years back. On a overall reading of the
circumstances of the case, this Court feels that the family members have
come together and have initiated proceedings in order to frustrate the sale
deed which was executed in favour of the 3rd defendant after 14 years, by
filing this frivolous suit.
19. Both the Courts below have also looked at the case from another
angle with respect to the plea of adverse possession taken by the 3rd
defendant. In the present case, the plaintiff, 1 st defendant and 2nd defendant
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are aware about the execution of the sale deed in favour of the 3rd defendant
in the year 1992. If assuming that the sale deed is not binding on the
plaintiff, insofar as her share is concerned, the plaintiff was waiting for 14
years and the 3rd defendant was enjoying the property right under her nose
and he had alienated it in turn to the 4 th defendant. Therefore, the plaintiff
was aware as to when the 3rd defendant came into possession. The plaintiff
was aware as to the nature of possession of the 3rd defendant. The plaintiff
was also aware with regard to the factum of possession of the 3rd defendant
that was adverse to her rights and the plaintiff waited for more than the
statutory period of 12 years to even institute the suit. In the mean time, the
possession of the 3rd and 4th defendants was open and undisturbed. All these
facts clearly creates a right in favour of the 3rd defendant who claimed title, in
the alternative, through adverse possession. It is made clear that it is only an
alternative plea under the assumption that the share of the plaintiff was also
dealt with and which is not binding on her.
20. Looking at the case from any angle, this Court finds that there is
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absolutely no ground to interfere with the findings of both the Courts below.
The findings of both the Courts below is based on oral and documentary
evidence and there is no perversity in those findings. In any event, no
substantial questions of law are involved in this second appeal.
21. In the result, this second appeal is dismissed with costs.
Consequently, the connected miscellaneous petition is closed.
04.03.2022
Index :Yes/No
Internet :Yes/No
Speaking order/ Non-Speaking order
dsa
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To
1.The Sub-Judge, Tiruttani.
2.The District Munsif Court, Tiruttani.
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N.ANAND VENKATESH,J.
dsa
S.A.No.97 of 2016
04.03.2022
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