Madras High Court
T.Somasundaram (Died) vs Shanmugathai on 7 March, 2022
S.A.(MD)No.411 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 07.03.2022
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.411 of 2010
1.T.Somasundaram (died) ... Appellant / Appellant / 2nd Plaintiff
2.Packialakshmi
3.Celina
4.Dinesh Pandian ... Appellants
(Appellants 2 to 4 are brought on record as Lrs of the
deceased sole appellant vide order dated 24.01.2011 made
in M.P.(MD)No.4 of 2010)
-Vs-
1.Shanmugathai
2.Vellathai ... Respondents / Respondents / Defendants
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree in A.S.No.1 of 2009, dated
21.01.2010 on the file of the Sub Court, Sankarankoil cofirming the
judgment and decree in O.S.No.176 of 2006, dated 18.11.2008 on the file of
the Principal District Munsif Court, Sankarankoil.
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S.A.(MD)No.411 of 2010
For Appellants : Mr.F.X.Eugene
For R1 & R2 : Mr.V.Meenakshisundaram
for Mr.D.Nalla Thambi
JUDGMENT
This second appeal arises out of a suit for declaration that the suit
sale deed is null and void.
2. One Thavasikkannu Ammal filed O.S.No.176 of 2006 on the file of
the Principal District Munsif Court, Sankarankoil for declaring that the sale
deed dated 07.06.1999 executed by her in favour of the defendants
Shanmugathai and Vellathai as null and void. Thavasikkannu Ammal
admittedly was illiterate. The defendants are none other than the
daughters-in-law of her brother. According to the plaintiff, there was some
borrowal by the plaintiff's son Somasundaram from the husbands of the
defendants and that therefore, the plaintiff was asked to execute a deed of
mortgage. She therefore went to the Sub Registrar Office for executing
the mortgage deed. Making use of her illiteracy, a sale deed was obtained
from her. This in substance was her allegation. Since the execution
of Ex.B1 is vitiated by fraud and deception, it had to be declared as null
and void. With this averments and prayer, Thavasikkannu Ammal filed
the said suit. The defendants filed written statement controverting the
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S.A.(MD)No.411 of 2010
plaint averments. Based on the divergent pleadings, the court below framed
the following issue:-
“1.Whether the sale deed dated 07.06.1999 is obtained by
misrepresentation and fraudulently?
2. Whether it has to be declared that the sale deed dated
07.06.1999 is null and void?
3. Whether the plaintiff is entitled to get recovery of
possession of the suit property?
4. Whether the prayer of the plaintiff is barred by
limitation?
5. To what other relief, the plaintiff is entitled to get?”
3. The plaintiff examined herself as P.W.1. Her daughter-in-law
Packialakshmi was examined as P.W.2. Ex.A1 to Ex.A14 were marked.
The second defendant Vellathai examined herself as D.W.1. Ex.B1 to
Ex.B6 were marked. During the pendency of the trial, Thavasikkannu
Ammal passed away and her son Somasundaram came on record. After
consideration of the evidence on record, the trial court by judgment and
decree dated 18.11.2008 dismissed the suit. Aggrieved by the same,
Somasundaram filed A.S.No.1 of 2009 before the Sub Court,
Sankarankovil. The first appellate court confirmed the decision of the trial
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S.A.(MD)No.411 of 2010
court and dismissed the appeal by judgment and decree dated 21.01.2010.
Challenging the same, this second appeal came to be filed. During the
pendency of the second appeal, Somasundaram passed way and his wife
Packialakshmi and children Celina & Dinesh Pandian came on record as A2
to A4. Though the second appeal was filed way back in the year 2010,
it has not been admitted till date. Only notice was ordered.
4. The learned counsel appearing for the appellants reiterated all the
contentions set out in the memorandum of grounds and called upon this
Court to admit the second appeal after framing the substantial question of
law and then take it up 'for disposal'.
5. Per contra, the learned counsel appearing for the respondents
submitted that no substantial question of law arises for consideration.
6. I carefully considered the rival contentions and went through the
evidence on record.
7. This second appeal can be disposed of on the sole ground of
limitation. There is no dispute that Ex.B1 corresponding to Ex.A8 was
executed on 07.06.1999. Of-course, the plaintiff sought not only the relief
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S.A.(MD)No.411 of 2010
of declaration but also possession. The limitation will be 12 years under
Article 65 of the Limitation Act, 1963. Article 65 of the Limitation Act will
apply to a suit filed for possession of the immovable property and the
period of 12 years will begin to run from the date when the possession of
the defendant became adverse to the plaintiff. But in the case on hand, the
plaintiff seeks the relief of possession by anchoring her contention that the
sale deed executed by her was vitiated by null and void. Therefore, the
relief of possession can be granted only if the plaintiff can succeed in
getting a declaratory relief regarding the character of the suit document.
Therefore, necessarily limitation period will be three years. Of-course, the
period of three years will begin to run from the date when the facts became
known to the plaintiff.
8. The learned counsel appearing for the respondents drew my
attention to the deposition of the original plaintiff herself. Though the
original plaintiff was an illiterate lady and she used to affix only thumb
impression and not put any signature, it is evident that she was conversant
with the ways of the world. Her husband was in Malaysia and he died
there. The original plaintiff resided in the foreign countries even during
1999. She was supported and assisted by her daughter-in-law
Packialakshmi. She categorically stated in the cross-examination that she
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S.A.(MD)No.411 of 2010
would affix her thumb impression only after the contents of the documents
were explained to her. She also admitted that she knew the distinction
between mortgage deed and sale deed. More than anything else, she
became aware that what was executed by her was a sale deed in the year
2000 itself, when she went to pay the kist for the suit lands. These facts
which entitled her to seek the relief of declaration became known to the
plaintiff in the year 2000 itself. Therefore, the limitation period would start
running from 2000. In this case, the suit was filed in the year 2006. It was
obviously time barred. That is why, the courts below have concurrently
held against the plaintiff on the issue of limitation. The approach of the
courts below cannot be faulted. The case of the plaintiff stands totally
undermined by her own testimony. No substantial question of law arises for
consideration. The decision of the court below is confirmed. The second
appeal is dismissed. No cost.
07.03.2022
Internet : Yes/No
Index : Yes/No
rmi
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.411 of 2010
To
1.The Sub Court, Sankarankoil.
2.The Principal District Munsif Court, Sankarankoil.
Copy To
The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court, Madurai.
https://www.mhc.tn.gov.in/judis
S.A.(MD)No.411 of 2010
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.411 of 2010
07.03.2022
https://www.mhc.tn.gov.in/judis
