Madras High Court
M.Kamala vs J.B.Kethan on 25 March, 2022
S.A.No. 528 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 25.03.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.528 of 2017
and C.M.P. No.12738 of 2017
M.Kamala ... Appellant
Vs.
J.B.Kethan ... Respondent
Second Appeal is filed under Section 100 of Civil Procedure Code, 1908,
against the decree and judgment dated 12.04.2017 made in A.S. No.37 of 2015
on the file of Sub-Court, Udhagamandalam in as far as reversing the judgment
and decree dated 30.04.2015 made in O.S. No.36 of 2007 on the file of District
Munsif cum Judicial Magistrate at Kotagiri.
For Appellant : Ms. D.Jayalakshmi
For Respondent : Mr. K.F.Manavalan
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S.A.No. 528 of 2017
JUDGMENT
The plaintiff in the suit in O.S.No.36 of 2007 on the file of the District
Munsif cum Judicial Magistrate, Kotagiri, is the appellant in the above second
appeal. The appellant filed a suit in O.S. No.36 of 2007 for declaration
declaring the sale deed executed by Smt. Kunji Mitichiammal in favour of first
defendant as sham and nominal, illegal and null and void and consequently for
permanent injunction restraining the respondent from interfering with the
peaceful possession and enjoyment of plaintiff of her share.
2. The case of the appellant in the plaint is that the suit property
originally belonged to her father by name Mathan @ Kengarai Mathan who
purchased the property along with others and got allotment of the suit property
in a partition that took place in the year 1955. The suit property is an extent of
50 cents in respect of which a sale deed has been executed by one Kunji
Mitichiammal, the first wife of appellant's father in favour of respondent herein.
It is the case of appellant that her father died intestate on 14.10.63 leaving
behind his two wives and the appellant. It is contended by the appellant that the
sale deed dated 13.02.2004 had been fraudulently obtained by the respondent
taking advantage of the old age and illiteracy of Kunji Mitichiammal who had
no necessity or intention to sell the property.
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S.A.No. 528 of 2017
4. The suit was resisted by the first defendant and a counter claim was
also made praying for a decree of permanent injunction restraining the plaintiff
or any one claiming through her from in any way interfering with his peaceful
possession and enjoyment of the suit property. The stand taken by the first
defendant in the written statement is that an earlier suit was filed in O.S.
No.135 of 1997 by the plaintiff and her mother against Smt.Kunji Mitchiammal
who is the vendor of first defendant and that the said suit was dismissed as not
pressed. Since it is not in dispute that the said Mathan died intestate on
14.10.1963, it is stated that the second defendant namely the second wife of
Mathan is not entitled to any right over the suit property. It is further submitted
that Smt. Kunji Mitchiammal who was living separately had bequeathed her
properties to the first defendant and his siblings. Though the plaintiff's status as
the daughter of Thiru Mathan is not disputed, the respondent disputed the
validity of second marriage.
5. The trial Court decreed the suit and dismissed the counter claim.
Aggrieved by the judgment and decree of the trial Court, the defendant
preferred an appeal in A.S. No.37 of 2015 before the Sub Court,
Udhagamandalam. The lower appellate Court, after elaborately considering the
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S.A.No. 528 of 2017
pleadings and evidence and material documents, held that the plaintiff is not
entitled to the relief of declaration or injunction. However, the lower appellate
Court held that the counter claim is not sustainable. Aggrieved by the judgment
and decree of the lower appellate Court in A.S. No.37 of 2015 reversing the
judgment of the trial Court in O.S. No.36 of 2007, the above second appeal is
preferred by the plaintiff in the suit.
6. In the memorandum of grounds of appeal the appellant has raised the
following substantial questions of law:
“a) Whether the Lower Appellate Court is right to reversing the judgment
and Decree passed by the Trial Court which was decreed weighing on the
principle that executant being one of the joint co owner the suit property cannot
execute sale deed in respect of the suit property in favour of the 1” defendant.
Therefore the Sale Deed deserved to be declared as null and void.
b) Whether the Lower Appellate Court is right in ignoring the factum that
when the plaintiff’s father’s property of 1.05 acres is so far unpartitioned, after his
demise jointly fell to the share of his legal heirs being his wife and daugther. While
that so, one of the joint co share being the wife of the deceased cannot convey the
property by executing the sale deed in favour of the 1ª defendant. The said
conveyance document being the sale deed deserves to be declared as null and void.
c) Whether the Lower Appellate Court in right in not considering the
material documentary evidence that Kunji Mitchiammal, Masiammal and the
plaintiff’s name were mutated in the Revenue records and the plaintiff also
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S.A.No. 528 of 2017
produced three chitta extracts dated 06.05.1997, 23.09.1997, 23.09.1997 which
were also marked as Exhibit A5, A6, A7 and kist receipt dated 07.12.1998 which
was marked as Exhibit A8 to substantiate and corroborate that the suit property is
the joint property and the plaintiff’s right, share and title over the suit property is
crystalised. While that so, the purported sale deed executed one co owner of the
suit property in favour of the 1st defendant does not bind the plaintiff and the same
deserves to be declared as null and void.
d) Whether the Lower Appellate Court is right in not appreciating the fact
after Kunji Mitchiammal’s death, the plaintiff’s father’s property of 1.05 acres of
land came into a joint possession and enjoyment of the plaintiff and her mother
Masiammal. Masiammal also died intestate and now the plaintiff alone has been
owning, possessing and enjoying 1.05 acres of land in survey numbers 44/3 and
55/1 of Jackanarai Revenue Village which was substantiated with both clinching
oral and documents evidences.
e) Whether the Lower Appellate Court is right in not appreciating the fact
that the best evidence is the candid admission of the defendant himself who who
has admitted the entire version and the pleadings of the plaintiffs to establish the
fact that the sale deed has been created fraudulently with dishonest intention. The
cross examination of defendant is clearly establishes the fraudulent activities of the
defendant.
f) Whether the Lower Appellate Court has erred in not appreciating the fact
with preponderance of probabilities that the 1” defendant took Kunji Mitchiammal
to Sub-Registrar’s office when she was 101 years old, and without her knowledge
and consent and when she was not in sound disposable mind fraudulently created
a sale deed in his favour of the suit schedule property.
g) Whether the Lower Appellate Court is right in not applying the
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S.A.No. 528 of 2017
provisions of Section 53(2) of the transfer of property Act 1882 which clearly
speaks that every transfer of immovable property made without consideration with
intent to defraud a subsequent transferee shall be voidable at the option of such
transferee.
h) Whether the Lower Appellate Court is right is not applying the
provisions of section 54 of TP Act deals with sales of immovable property wherein
it has been stated, Delivery of tangible immovable property takes place when the
seller places the buyer or such person as he directs, in possession of the property.
In the instant case the possession is still with the plaintiff. Possession not
accompanied with the sale deed because the sale is a fraudulent one. Hence no
transfer has been made.
i) Whether the Lower Appellate Court is right in not appreciating the case
of the plaintiff where she had adduced her side evidence and marked Exhibits Al to
A13. She adduced satisfactory evidence and putforth all the plaint averments and
stated that the documents created by defendant No.1 is invalid in all aspects to
substantiate beyond all reasonable doubts that said sale deed is created
dishonestly and with fraudulent intentions of the Defendant No.1.
j) Whether the Lower Appellate Court in right is not appreciating the case
of the plaintiff that the said document was fraudulently created by defendant No.1
when her mother Kunji Mitchiammal is not in sound state of mind and Kunji
Mitchiammal never had any intention to execute such a sale deed. She also
adduced evidence to that effect that no consideration was passed and possession of
the property is still with the plaintiff.
k) Whether the Lower Appellate Court is right is not scanning the evidence
of PW2 and PW3 her neighbourhood field owners to establish that the plaintiff is in
peaceful possession and enjoyment of the suit property till date and the defendant
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S.A.No. 528 of 2017
had not come to the property till date.”
7. It is not in dispute that the suit property originally belonged to Mathan,
the husband of second defendant. The dispute is in respect of the suit property
which is an extent of 50 cents out of a total extent of 1.05 acres owned by the
father of the plaintiff. As regard to the status of the plaintiff, there is no dispute
that she is the daughter of Thiru. Kengarai Mathan. But the validity of second
marriage of Mr. Kengarai Mathan with the plaintiff’s mother, the second
defendant is disputed. The lower Appellate Court rendered a specific finding in
favour of the defendant that the plaintiff has not let in any evidence to prove
that the validity of the second marriage in 2004 as pleaded and held that the
second defendant had no right in the property. No specific ground is raised
questioning the finding even though the evidence of DW1 is referred to in which
he has stated that was not aware of the second marriage. The burden is on the
plaintiff to prove the case. Therefore, the appellant is only entitled to an
undivided half share in the entire extent of 1.05 acres.
8.The Lower Appellate Court considered the relationship between the
parties as reflected from the plaint and written statement filed in the previous
suit in O.S. 135 of 1997 and the fact that appellant allowed the suit to be
dismissed. Be that as it may, the pleadings in the previous suit clearly indicates
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S.A.No. 528 of 2017
that the plaintiff and Kunji Mitchiammal were not in good terms. Even in the
written statement filed by the Kunji Mitchiammal, she has stated that out of
1.05 acres, she has executed a will in favour of the grand children of her
husband’s brother on 31.05.1988 in respect of her share of 50 cents after giving
the plaintiff's half share. Even in the reply notice, which was marked as Ex.
A10, Kunji Mitchiammal had expressed her intention to give 50 cents of land to
the grandchildren of her husband’s brother. It is admitted that Kunji
Mitchiammal is an old lady living separately in a small house in the land gifted
to her by her husband. The Plaintiff has admitted that Kunji Mitchiammal was
always under the care of respondent’s family after the death of her husband.
Though it is pleaded in the plaint that Kunji Mitchiammal was looked after by
the plaintiff and she met all her needs, in the course of evidence she admits that
she never visited Tmt. Kunji Mitchiammal who was residing separately. The
plaintiff herself states that the first defendant under the pretext of taking her to
the hospital took her to registration office to execute the sale deed. It is not
pleaded how Kunji Mitchiammal maintained herself during her old age. Kunji
Mitchiammal was unnecessarily dragged to the court by the plaintiff earlier and
the object of prior litigation was to avoid any alienation by Kunji Mitchiammal.
Further, execution of a sale deed or will in favour of respondent or his brother is
quite natural in the given circumstances. Kunji Mitchiammal would never
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S.A.No. 528 of 2017
thought of leaving any property to the plaintiff. Therefore, the lower appellate
court was unable to accept the case of the plaintiff that the sale deed executed
by Kunji Mitchiammalin is due to fraud or misrepresentation or undue
influence. This court considering the evidence and attending circumstances
finds no reason to invalidate the sale. Therefore, the judgment of the lower
appellate court reversing the judgment and decree of the trial court to deny the
relief of declaration is perfectly valid.
9.The next question is whether there was any partition by which the
specific extent of 50 cents conveyed in favour of respondent by Kunji
Mitchiammal under Ex. B4, is established. Even in the written statement filed in
the previous suit Kunji Mitchiammal has pleaded partition. Pointing out some
minor discrepancies in the written statement and the recitals in Ex. B4.
regarding the manner of partition, the trial court did not accept the case of the
respondent. Assuming that there is no partition, the sale deed in respect of 50
cents is in favour of the respondent is valid as the intention of Kunji
Mitchiammal to convey her share in the total extent of 1 acre 5 cents is evident
from the sale deed as well as her plea in the written statement filed in the
previous suit.
10.Assuming that there is no partition, the sale deed cannot be vitiated on
the grounds alleged in the plaint. The consequential prayer in plaint is for
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S.A.No. 528 of 2017
permanent injunction restraining the respondent herein from interfering with the
peaceful possession and enjoyment of the plaintiff’s undivided share. It is to be
seen that the suit property is only an extent of 50 cents conveyed in favour of
the respondent. The plaintiff has not let any evidence to prove fraud or undue
influence. Having regard to the admitted facts and overall evidence indicating
the clear mind and conduct of Kunji Mitchiammal who would never wish to
give her share to the plaintiff or the second defendant, this Court is unable to
interfere with the judgment of the lower appellate Court. Even though the lower
appellate court found that the respondent is in possession, confirms the decree
of trial court, rejecting the counter claim on the ground that there was no cause
of action for the respondent to pray for injunction.
11.The first question of law had already been answered against the
appellant as the sale deed is valid insofar as the half share of Kunji
Mitchiammal as the intention was obvious. The trial court has rendered a
specific finding that the alleged partition is not proved. However, the appellate
court did not give much attention. Be that as it may, this Court is of the view
that the sale deed executed by Kunji Mitchiammal can be treated as one in
respect of undivided share of Kunji Mitchiammal and it is valid. Hence the
second and third question of law also have no substance as the exclusive
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S.A.No. 528 of 2017
possession of the plaintiff is not proved by any independent witness or
acceptable evidence. Kunji Mitchiammal has admitted plaintiff’s one half share
and the plaintiff or the second defendant having failed to prove the second
marriage of her father and second defendant as valid there is no basis for
claiming exclusive title to the property after the death of second defendant. As
this court has already held that the sale deed under Ex. B4 is not tainted with
any illegality and the plaintiff’s case of fraudulent transfer has been answered
against her, there is no substance in the questions of law raised in (d) (e) (f) &
(g).
12.In this case, it is not disputed that Kunji Mitchiammal was in
possession of the entire property and it is stated by her in the written statement
earlier that she had bequeathed her share by a Will. Since the sale deed is held
to be valid the respondent’s right as a co-owner atleast cannot be disputed. It is
to be seen that Kunji Mitchiammal died only in the year 2005. Hence, it cannot
be presumed that plaintiff was in possession of the suit property. It is admitted
by the plaintiff that there was mutation of records in favour of the respondent
and that it was pursuant to the order of the Revenue Divisional Officer without
notice to her. Though the trial court proceeded to consider the issue regarding
possession after declaring the sale deed as void, it is to be noted that there was
mutation of records in favour of the respondent. When Kunji Mitchiammal was
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S.A.No. 528 of 2017
in possession and the sale deed is now held to be valid, no presumption can be
drawn contrary to the contents of Ex. B4. Assuming that the respondent has
not taken physical possession of the property conveyed under Ex. B4., there is
no scope for granting the relief of injunction against the respondent, who is a
co-owner. Hence, there is no scope for granting any relief to the
plaintiff/appellant. In view of the findings of the lower appellate court and the
conclusion reached above, this court is unable to consider the remaining
question of law which are based on facts and unsustainable in view of the
findings of lower appellate Court.
13.As a result, this court finds no merit in this second appeal.
Accordingly, the second appeal is dismissed. No costs. Consequently, connected
miscellaneous petition is closed.
25.03.2022
Index:Yes/No
Internet:Yes
bkn/Ns
To
1.The Sub-Court,
Udhagamandalam.
2.The District Munsif cum
Judicial Magistrate,
https://www.mhc.tn.gov.in/judis
S.A.No. 528 of 2017
Kotagiri.
S.S.SUNDAR,J.
bkn/Ns
S.A. No.528 of 2017
and C.M.P. No.12738 of 2017
https://www.mhc.tn.gov.in/judis
S.A.No. 528 of 2017
25.03.2022
https://www.mhc.tn.gov.in/judis
