Madras High Court
D.Sengol Royan vs D.Rajina Mary on 14 October, 2022
A.S.Nos.949 and 950 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.10.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MRS. JUSTICE N. MALA
A.S.Nos.949 and 950 of 2014
D.Vincent Royan (Died)
1.D.Sengol Royan
2.D.Irudaya Royan
3.D.Josphin Rani
4.A.Bernath Noel
5.A.Anitha Mary
6.A.Sunitha Amali
7.Minor A.Deepa Mary Grazy
By Next Friend Mother Bernath Noel
Appellants 1 and 3 to 7 are hereby
represented by their
Registered Power of Attorney Agent
D.Irudaya Roayn, 2nd appellant
8.D.Mary
9.L.Lourthu
10.V.Jayasheba ... Appellants
in both appeals
Vs.
Page 1 of 12
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A.S.Nos.949 and 950 of 2014
1.D.Rajina Mary
2.D.Jayarani
3.A.George William
4.Amalanathan ... Respondents
in both appeals
Prayer : Appeal Suits in A.S.Nos.949 and 950 of 2014 filed under Section
96 of Code of Civil Procedure against the judgment and decree dated
15.09.2014, and the fair and decretal order, dated 15.09.2014, in I.A.No.207
of 2013, respectively, in O.S.No.3 of 2011 on the file of the Additional
District Court, Krishnagiri.
For Appellants : Mr.P.Mani
in both appeals
For R1 to R4 : Mr.V.Nicholas
in both appeals
COMMON JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
The plaintiffs in the suit in O.S.No.3 of 2011 on the file of the
Additional District Court, Krishnagiri, are the appellants in both the appeals.
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A.S.Nos.949 and 950 of 2014
2.The appeal in A.S.No.950 of 2014 is against the order in I.A.No.207
of 2013, dated 15.09.2014, allowing the petition filed by the contesting
defendants in the suit under Order VII Rule 11 of CPC. Based on the order
in I.A.No.207 of 2013, the suit in O.S.No.3 of 2011 was also dismissed on
15.09.2014. Aggrieved by the judgment and decree in O.S.No.3 of 2011,
the plaintiffs have preferred A.S.No.949 of 2014.
3.From the reading of the plaint in O.S.No.3 of 2011, it is seen that
the appellants have filed the suit for partition to divide the suit property into
7 equal shares and allot 5 such shares to the plaintiffs. The relationship
between the parties are not in dispute. The suit property is a house site and
building, which belonged to one M.G.David Royan. As per the plaint
averments, the said M.G.David Royan purchased the property under
registered sale deed dated 09.10.1973. M.G.David Royan died on
14.02.1985, leaving behind his wife, 4 sons and 5 daughters as his legal
heirs. One Sowri Ammal is his wife and plaintiffs 1 to 3 and one Lourdhu
Royan are his sons. The 4th plaintiff, defendants 1 and 2 in the suit and two
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A.S.Nos.949 and 950 of 2014
others, by name, Berneth Mary and Regina Mary are the 5 daughters.
Defendants 5 to 8 are the legal heirs of deceased son of Late M.G.David
Royan. On the death of the 1st plaintiff, pending suit, the plaintiffs 9 to 11
were impleaded. It is stated that, wife of David Royan died on 24.10.2009
and one of her sons Lourdhu Royan also died unmarried. It is also stated
that Berneth Mary, another daughter of David Royan also died unmarried.
4.The suit has been filed stating that all the 7 remaining children have
succeeded to the Estate of the deceased M.G.David Royan. In the suit, the
plaintiffs have stated in Para Nos.7 and 8 that there was a loss of business
conducted by the plaintiffs 1 to 3 and they wanted to safeguard the suit
property from the Creditors and therefore, they created a sham and nominal
sale deed, dated 10.01.1991, along with their mother and other sharers in
favour of their unmarried sister, Miss.Bernath Mary. The statements in the
plaint in Para Nos.7 and 8 are extracted below for convenience :
“(7)After the death of their father, the 1 to 3 plaintiffs
were doing Lorry transport business. Due to the loss in the
business they have borrowed debts from some finance
companies, but they could not discharge the debts. The
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A.S.Nos.949 and 950 of 2014
creditors were trying to take legal steps to recover the debts
from 1 to 3 plaintiffs. So, the 1 to 3 plaintiffs to safe guard the
suit property from any attachments by the creditors created a
nominal sale deed dated 10-01-1991 along with their mother
and others in favour of their unmarried sister Miss. Bernath
Mary to avoid any attachment over the same. Thus the sale
deed dated 10-01-1991 in favour of Bernath is only a nominal
one and not a bonafide sale.
(8)Even after that all the legal heirs of David Royan
have been jointly enjoying the suit property. In fact on 03-05-
1999 the said Bernath Mary and the 3rd plaintiff have jointly
mortgaged the property as their joint property and borrowed a
sum of Rs.1,00,000/- for his lorry business and subsequently
discharged the same. Thus the suit property is the joint
property of all the legal heirs of Late David Royan and not a
separate property of the said Bernath Mary by means of the
nominal sale deed in her favour.”
5.With regard to the share of the plaintiffs, the plaintiffs, in Para
No.10 and 11, have stated as follows :
“(10)While so, on 01-02-2009 the said Bernath Mary
also died unmarried. So her share and right in the suit
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A.S.Nos.949 and 950 of 2014
property also devolved on the remaining brothers and sisters.
Thus the suit property to be divided into 7 equal shares, in
which 1 to 4 plaintiff's are each having one such share, 5 to 8
plaintiffs jointly entitled to 1/7th share through their deceased
father Arogya Raj. The 1 and 2 defendants also each entitled to
1/7th shares. Thus the plaintiffs jointly entitled to 5/7 shares
and 1 and 2 defendants jointly entitled to the 2/7 shares in the
suit property.
(11)The 3rd defendant is the son of 2nd defendant and
4th defendant is the husband of 2nd defendant, they are not
having any right in the property. But the defendants 1 to 4 are
in permissive possession of the suit property on the permission
and on behalf of the plaintiffs. Even now the house Tax
assessment is standing on Bernath Mary, because the nominal
sale deed was in her name. But the 3rd plaintiff is paying the
house Tax for the suit house. To avoid any litigation, the
plaintiffs requested the defendants on 21-10-2010 to divide the
suit properties, but the defendants refused to do so and
proclaimed that they along are the owners of the suit
properties.”
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A.S.Nos.949 and 950 of 2014
6.The cause of action of the plaint in Para No.15 reads as follows :
“(15)Cause of action for the suit is arose on 09-10-
1973, when father of the 1 to 4 plaintiffs, David Royan has
purchased the suit property, on 14-02-1985, when David
Royan on 10-01-1991, when all the sons and daughters of
David Royan have nominally executed a formal sale deed in
favour of their unmarried sister Bernath Mary, to safe guard
the property from their creditors' attachment, on 24-10-2009,
when Savriammal died, prior to that when Lourdhu Royan,
Arogya Royan are died on 01-10-2009, when the said Bernath
Mary died, about a month ago, when the defendants were
trying to sell the suit property and on 21-10-2010, when the
plaintiffs requested the defendants to co operate with them for
a partition of the suit property and refused by the defendants
at Boganapalli Village in Krishnagiri Taluk, within the
jurisdiction of this Honourable Court.”
7.From the reading of the relevant paragraphs in the plaint, extracted
above, it is seen that the plaint discloses a cause of action and the relief is on
the basis of a specific plea that the sale deed in favour of the unmarried
sister is a sham and nominal transaction. Though it is stated that the
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A.S.Nos.949 and 950 of 2014
defendants 1 to 4 are in permissive possession of the suit property on the
permission and on behalf of the plaintiffs, the lower Court, in the petition
filed by the defendants in I.A.No.207 of 2013 under Order VII Rule 11 of
CPC, held as follows :
“9.After considering both sides arguments and the pleadings
this court is of the view there is no doubt that the suit property was
sold by respondents 1 to 4 in favour of late Bernath Mary.
Therefore, all the legal right accrued under the sale deed
automatically goes to Bernath Mary. Hence, the
Plaintiffs/respondents claim that the said sale was shame and
nominal cannot be agitated by way of this suit. The only remedy is
to file an appropriate suit for declaring the sale deed as null and
void by paying appropriate Court Fee. In any event claiming joint
Possession as joint family right after 10.01.1991 by the
respondent/plaintiffs cannot be accepted. Hence, this suit is filed
for Partition and for separate possession as if they are in joint
Possession and paying Court Fees u.sec 37(2) Tamil Nadu Court
Fee's Act is not applicable. Because, on the date of suit admittedly
the right of the respondents/plaintiffs is not co-owners and even as
per their admitted pleadings the petitioner's alone in Possession,
hence there is no cause of action for this suit hence on this ground
also the plaint is liable to be rejected.
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9.Hence, the suit filed for Partition simplicitor as Co-owners
without asking for declaration by seeking for null and void of sale
deed dated 10.1.1991 is not acceptable. Hence Court Fee paid is
not in accordance with law. Hence, this plaint is liable to be
rejected. Hence, this petition is liable to allowed with cost.”
8.It is the case of the contesting defendants that the sister of the
plaintiffs, by name, Berneth Mary got absolute title from the vendors by
virtue of the sale deed. It is further stated that the defendants 1 to 4 are in
possession on the basis of the Will, dated 28.04.1999, executed by
Miss.Berneth Mary before her death.
9.It was on the basis of the statements in the written statement, the
trial Court appears to have interpreted the pleadings of the plaintiffs in the
plaint as if the plaintiffs have admitted the possession of the defendants.
This Court is unable to sustain the order of the lower Court, allowing the
petition in I.A.No.207 of 2013 filed under Order VII Rule 11 of CPC. It is
well settled that, for the purpose of deciding an application under Order VII
Rule 11 of CPC, the Court is expected to consider only the pleadings in the
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A.S.Nos.949 and 950 of 2014
plaint. The plaintiffs have specifically pleaded the character of the sale
deed, dated 10.01.1991, as a sham and nominal one. If it is established
before the Court that the transaction under the sale deed, dated 10.01.1991,
is sham and nominal, it would mean that the document was never acted
upon. The plea that a document is sham and nominal can be established
even without a prayer to set aside the document. Therefore, the contention
of the learned counsel appearing for the respondents that the suit without
paying proper Court Fee to set aside the alienation, dated 10.01.1991,
cannot be countenanced.
10.Secondly, the trial court has allowed the application on the ground
that the suit ought to have been valued under Section 37(2) of the Tamil
Nadu Court Fees and Suit Valuation Act. This Court is unable to find any
averment in the plaint to attract Section 37(2) of the Tamil Nadu Court Fees
and Suit Valuation Act. Even assuming that the suit has been valued
wrongly, the plaintiffs should be given an opportunity to pay Court Fee
before rejecting the plaint. Only where the Court requires the plaintiff to
correct the valuation within the time fixed by the Court and plaintiff fails to
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A.S.Nos.949 and 950 of 2014
pay the Court Fee as per the direction of the Court, the plaint can be
rejected. In this case, the lower Court, even without adhering to the
provisions of Order VII Rule 11 of CPC, rejected the plaint. Since the issue
whether ad valorem Court Fee under Section 37(2) of the Act is required to
be decided on facts, the question should always be left open to be decided at
trial. Therefore, this Court is unable to sustain the order of the learned
Additional District Judge, Krishnagiri, rejecting the plaint under Order VII
Rule 11 of CPC. It is to be noted that the defendants, who relied on the
Will, have to prove the Will, as the plaintiffs are entitled to seek partition in
the absence of any Will.
11.Hence, both the appeals are allowed and the order in I.A.No.207 of
2013, as well as the judgment and decree in O.S.No.3 of 2011, both dated
15.09.2014, passed by the Additional District Court, Krishnagiri, are set
aside. The suit is remitted to the trial Court for fresh disposal in accordance
with law. No costs.
S.S. SUNDAR, J.
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A.S.Nos.949 and 950 of 2014
and
N. MALA, J.
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12.In view of the judgment passed by this Court in these appeals, the
Registry is directed to send back the records of the suit in O.S.No.3 of 2011
to the lower Court for trial. In view of the fact that the suit is of the year
2011, the lower Court is directed to dispose of the suit within a period of six
months from the date of receipt of a copy of this judgment.
(S.S.S.R., J.) (N.M., J.)
14.10.2022
mkn
Internet : Yes
Index : Yes / No
To
The Additional District Judge,
Krishnagiri.
A.S.Nos.949 & 950 of 2014
https://www.mhc.tn.gov.in/judis
