Madras High Court
G.Usha Rani vs N.Kalarani on 10 October, 2022
S.A.No.813 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.10.2022
CORAM
THE HONOURABLE Ms. JUSTIcCE P.T. ASHA
S.A.No.813 of 2022
and
C.M.P.No.16713 of 2022
1.G.Usha Rani
2.Vennila
3.Akila
4.Sridevi
5.Boopathi ...Appellants
Vs
N.Kalarani ... Respondent
Prayer: Second Appeal is filed under Section 100 of C.P.C against the
Judgement and Decree dated 29.04.2021 made in A.S.No.62 of 2018
on the file of the I Additional District Court, Salem, confirming the
judgment and decree dated 16.07.2018 made in O.S.No.174 of 2015 on
the file of the I Additional Sub-Court, Salem.
For Appellants : Mr.V.Rajesh
1/10
https://www.mhc.tn.gov.in/judis
S.A.No.813 of 2022
JUDGEMENT
The defendants are the appellants before this Court challenging
the concurrent judgment and decree of the courts below. While
narrating the facts culminating in the filing of the appeal, the parties are
referred to the same ranking as before the trial Court.
2. The facts in brief are as follows:
The plaintiff had filed the above suit in O.S.No.174 of 2015
before the learned I Additional Subordinate Judge, Salem, seeking
recovery of possession of the suit property. It is their case that one
Mani @ Govindasamy was her paternal uncle, the 1st defendant is his
wife and defendants 2 to 5 are his children. The said Govindasamy
owned a land measuring 2140 Sq.ft., with a constructed area of 1200
Sq.ft., and he had sold the same to the plaintiff on 21.03.2003 for a
valid consideration to meet his medical expenses. A sale deed was also
executed and registered. The defendants had also joined with
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S.A.No.813 of 2022
Govindasamy in executing the sale deed and they were confirming
parties. The plaintiff therefore became the absolute owner of the suit
property and vacant possession was handed over to her. The said
Govindasamy had requested the plaintiff to permit him and his family
members to stay in the suit property. On 17.01.2007, Govindasamy
passed away and the defendants 2 to 5 being close relatives of the
plaintiff and since the defendants 2 to 5 were very young, the plaintiff
had permitted them to continue to stay in the suit property without
paying any rent. Later, when the plaintiff had requested the defendants
to vacate the suit property or to pay rent, the defendants refused to do
both. Therefore, the plaintiff had lodged a police complaint who
advised her to seek remedy from civil Court. Therefore, the plaintiff
sent a legal notice dated 07.01.2015 terminating the permissive
occupation by them and demanded them to vacate and hand over the
possession of the suit property.
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S.A.No.813 of 2022
3. The written statement was filed by the 1st defendant and the
same was adopted by the defendants 2 to 5. The defendants had denied
the sale of the property by Govindasamy to the plaintiff and they
denied the contention that the plaintiff had permitted them to reside
without paying rent. The defendants had contended that the suit
property is the property of a Hindu Undivided Family which belong to
the defendants' paternal grand mother Krishnammal @ Thayammal.
The said Krishnammal @ Thayammal had two sons namely Nagappan
and Govindasamy. During her lifetime, Krishnammal partitioned the
property by a deed dated 19.02.1976 in which A-schedule was allotted
to Nagappan and B-schedule was allotted to Krishnammal herself and
Govindasamy, the father of the defendants 2 to 5. After partition the
suit property remained in possession of Krishnammal @ Thayammal
and her younger son Mani @ Govindasamy. Since Krishnammal died,
Govindasamy succeeded and thereafter Govindasamy also died on
17.01.2007. It is the case of the defendants that the Govindasamy was
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S.A.No.813 of 2022
an alcoholic and completely under the control of his elder brother
Nagappan. The said Nagappan had guided the defendants and the
deceased Mani @ Govindasamy to execute a sham and nominal sale
deed in favour of his daughter. The defendants sought to have the suit
dismissed.
4. The additional written statement came to be filed by the 1st
defendant and adopted by the defendants 2 to 5, wherein the 1st
defendant had contended that the suit for recovery without a prayer for
declaration was not maintainable and the suit has to be dismissed.
5. The trial Court on a perusal of the pleadings had framed the
following issues:
1.Whether the sale deed executed by Mani @
Govindasamy in favour of plaintiff is sham and nominal ?
2.Whether the plaintiff is entitled for recovery of
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S.A.No.813 of 2022
possession?
3.Whether the suit claim is barred by limitation ?
4.To what any relief is entitled for ?
6. On the side of the plaintiff, the plaintiff had examined herself
as P.W.1 and one Mohan was examined as P.W.2. and Exs.A1 to A15
were marked. On the side of the defendants, the first defendant
examined herself as D.W.1 and Ex.B1 was marked.
7. Heard the learned counsel for the appellants and the learned
counsel for the respondent and perused the materials available on
record.
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S.A.No.813 of 2022
8. The learned counsel for the appellants/defendants submitted
that the plaintiff has come forward with the case that she had purchased
the property from the husband of the 1st defendant and father of the
defendants 2 to 5, under the registered sale deed. The execution of the
said deed is not questioned. The plaintiff has filed the documents to
show her possession of the property from the date of the sale in her
favour. The said Govindasamy is none other than the junior paternal
uncle of the plaintiff. The defendants who had come forward with a
contention that the sale deed was a sham and nominal one has not filed
any documents to substantiate the same and their defence was that the
plaintiff's father who is the brother of Govindasamy has taken
advantage of his addiction to alcohol to have the sale deed executed in
his name and the arrangement are only a temporary one. The sale deed
Ex.A1 contains a recital as to the purpose for which the said
Govindasamy had sold the property to the plaintiff. The plaintiff has
acted upon the sale deed by obtaining a loan for further construction
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S.A.No.813 of 2022
and has also got the revenue Records, tax receipts and electricity
connections transferred in her name which would go to show that the
sale was intended to be given effect to and not a sham and nominal one
as contended by the defendants. The plaintiff has also pleaded that they
had permitted the defendants to stay in the premises without paying
rent temporarily taking into consideration the death of Govindasamy
and also the fact that the defendants 2 to 5 were minors. The plaintiff
has proved the purchase and her right to the property and the
defendants who have taken out a plea that the sale was only on sham
and nominal are unable to substantiate the same. Both the Courts below
have elaborately considered the evidence on record and decreed the
suit and I see no reason to interfere with the same particularly when the
defendants were not able to make out the substantial question of law.
9. Accordingly, the second appeal is dismissed and Judgement
and Decree dated 29.04.2021 made in A.S.No.62 of 2018 on the file of
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S.A.No.813 of 2022
the I Additional District Court, Salem, confirming the judgment and
decree dated 16.07.2018 made in O.S.No.174 of 2015 on the file of the
I Additional Sub-Court, Salem, are confirmed. No costs.
Consequently, connected civil miscellaneous petition is closed.
10.10.2022
Index : Yes/No
Speaking order/non-speaking order
ssn
To
1. The I Additional District Court,
Salem.
2. The I Additional Sub-Court,
Salem.
3. The Section Officer,
V.R.Section,
High Court, Madras.
https://www.mhc.tn.gov.in/judis
S.A.No.813 of 2022
P.T.ASHA, J.,
ssn
S.A.No.813 of 2022
and
C.M.P.No.16713 of 2022
10.10.2022
https://www.mhc.tn.gov.in/judis
