Madras High Court
Mallika vs Rajambal (Deceased) on 8 March, 2022
S.A.No.875 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.03.2022
CORAM
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Second Appeal No.875 of 2013
and MP No.1 of 2013
Mallika ... Appellant
Vs.
Saroja
Rajambal (Deceased) ... Respondents
Cause title accepted vide order of
Court dated 18.7.2013 made in
M.P. No.1 of 2013 in SA SR. No.101832/12
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree dated 31.08.2012 in AS
No.43 of 2011 on the file of Principal Sub Judge, Tindivanam reversing
the judgment and decree dated 18.07.2011 passed in OS No.222 of 2004
on the file of District Munsif-cum-Judicial Magistrate, Vanur.
For Appellant : Mr.T.Arulraj
For Respondents : Mr.S.R.Raghunath
R2 - Died
1/10
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
JUDGMENT
The first defendant is the appellant in this Second Appeal.
2. The plaintiff filed a suit seeking for the relief of partition and for
allotment of half share in the suit property.
3. The case of the plaintiff is that the suit property belonged to her
father under a registered Sale Deed dated 31.03.1993, marked as Ex.A1.
He was in possession and enjoyment of the property. The further case of
the plaintiff is that even during the lifetime of her father, he had expressed
his willingness to give half share in the suit property and the original Sale
Deed was also handed over to the plaintiff. It is stated that the father of
the plaintiff died intestate leaving behind his wife and two daughters who
are the plaintiff and the first defendant.
4. It is further stated by the plaintiff that she requested for the
partition of the suit property into two shares and for allotment of one share
in her favour. The first defendant was not coming forward to effect the
partition and she informed the plaintiff that their mother executed a Sale
Deed on 05.05.1999, marked as Ex.B1, in favour of her minor son
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
Suvarajappa and thereby she denied allotment of any share in favour of the
plaintiff. Left with no other option, the partition suit came to be filed by
the plaintiff.
5. The case of the first defendant is that the suit property was jointly
purchased on 31.03.1993 by the father and mother and both had 50% share
in the property. It was further stated that the plaintiff was already married
and she is living in the matrimonial home and her parents never intended
to give any share in the property. Thereafter, the father Sivayya died and
the mother became the absolute owner of the property. She was in want of
funds to take care of her medical needs and hence decided to sell the
property. A sum of Rs.69,300/- was paid as sale consideration and a Sale
Deed was executed in favour of the son of the first defendant. Thereafter,
the suit property was in absolute possession and enjoyment of the first
defendant and her family. Hence the first defendant sought for the
dismissal of the suit.
6. The Trial Court after considering the oral and documentary
evidence and taking into consideration the facts and circumstances of the
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
case, held that the plaintiff is not entitled for half share in the suit property
and that she is only entitled for 1/6th share in the suit property and a
preliminary decree was passed to that effect. Aggrieved by the same, the
plaintiff filed an Appeal in AS No.43 of 2011. The Lower Appellate
Court on re-appreciation of the oral and documentary evidence and after
considering the findings of the Trial Court, came to a conclusion that the
Sale Deed executed by the mother is not valid and binding on the plaintiff
and accordingly modified the decree passed by the Trial Court and held
that the plaintiff is entitled for half share in the suit property. Aggrieved
by the same, the first defendant has filed the Second Appeal.
7. When the Second Appeal was admitted the following substantial
questions of law were framed:
1. Whether the First Appellate Court was right in
holding that the suit property exclusively belongs to
Sivayya, father of the plaintiff?
2. In any event whether the plaintiff is entitled to
1/2 share in the suit property even during the life time of
second defendant, her mother, who has disposed of
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
whatever share she is entitled in the suit property in
favour of first defendant’s son?
Thereafter the following additional substantial questions of law were
framed:
a) Did the Lower Appellate Court went wrong in
reversing without dealing with the findings of the Trial
Court and giving reasons as mandated under Order XLI
Rule 31 of CPC?
b) Whether the Lower Appellate Court went wrong in
holding the registered Sale Deed as non-est in a collateral
proceedings, wherein the plaintiff has not even sought for a
declaration to that effect?
c) Whether the findings of the lower Appellate Court
can be rendered as vitiated for improper appreciation of the
oral and documentary evidence?
8. Heard Mr.T.Arulraj, learned counsel appearing for the appellant
and Mr.S.R.Raghunath, learned counsel appearing for the respondent. This
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
Court also carefully perused the materials available on record and the
findings of both the Courts below.
9. It is an admitted case that the original Sale Deed that was marked
as Ex.A1 stood in the name of P.M.Sivayya and his wife Rajambal. The
said Sivayya died intestate leaving behind his wife and two daughters. The
plaintiff and the first defendant are the daughters and the second defendant
is the wife. The case of the plaintiff is that her mother was merely a name
lender and she had no source of income to purchase the property and her
father out of love and affection, included the name of the mother also in
the Sale Deed.
10. The main issue that arises for consideration is with regard to the
Sale Deed executed by the second defendant in favour of the minor son of
the first defendant, marked as Ex.B1 on 05.05.1999. It is seen from the
document that the second defendant is claiming absolute ownership of the
entire suit property and she has conveyed the entire suit property by virtue
of this document. The Trial Court while considering the document has
given a finding to the effect that the second defendant did not have the
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
right to execute a Sale Deed and convey the entire property after the death
of Sivayya on 02.02.1999. However, the Trial Court read down the
document and upheld the document insofar as the half share of the second
defendant and held that the plaintiff is not entitled for any share in this
half share of the second defendant which was already conveyed in favour
of the minor son of the first defendant.
11. The Lower Appellate Court went into the circumstances under
which Ex.B1was executed and found that it was totally artificial and there
was absolutely no evidence for the consideration passing on in favour of
the second defendant. The Lower Appellate Court also found that it was
very unnatural for the second defendant to sell the property in favour of
her own grandson and the natural conduct would be to execute a Will or a
Settlement Deed, if at all she wanted to give a share to her grandson.
Accordingly, the Lower Appellate Court held that Ex.B1 is vitiated due to
the suspicious circumstances surrounding it and in any case the second
defendant could not have executed the document for the entire property
when admittedly she is claiming half share in the suit property. The Lower
Appellate Court also took into consideration the fact that the second
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
defendant died during the pendency of the Appeal and therefore, thought it
appropriate to allot half share to the plaintiff and the other half to the first
defendant.
12. In the considered view of this Court, Ex.B1 executed by the
second defendant has to be completely disregarded since the second
defendant has conveyed the entire property in the name of her minor
grandson, who is none other than the son of the first defendant. This apart
from the fact that the very execution of the document is shrouded in
mystery and there is absolutely no proof for the consideration passing on
to the second defendant. The Lower Appellate Court has given cogent
reasons for disregarding Ex.B1 based on evidence and this Court does not
find any ground to interfere with the same. The substantial questions of
law 1 and 2 and the additional substantial question of law (b) are answered
accordingly.
13. The Lower Appellate Court has considered the entire evidence
available on record and has rendered its findings. The Lower Appellate
Court has also assigned proper reasons for reversing the findings of the
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
Trial Court. The additional substantial questions of law (a) and (c) are
answered accordingly.
14. In the result, all the substantial questions of law are answered
against the appellant and the Second Appeal is dismissed. Considering the
facts and circumstances of the case, there shall be no order as to costs.
Consequently, the connected miscellaneous petition is closed.
08.03.2022
Index : Yes/No
Internet : Yes/No
Speaking Order / Non Speaking Order
jv
To
1. The Principal Sub Judge,
Tindivanam.
2. The District Munsif-cum-Judicial Magistrate,
Vanur.
3. The Section Officer
VR Section,
High Court Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.875 of 2013
N. ANAND VENKATESH, J.
jv
Second Appeal No.875 of 2013
and MP No.1 of 2013
08.03.2022
https://www.mhc.tn.gov.in/judis
