Madras High Court
… vs Mrs.S.Sakunthala on 8 December, 2023
Author: P.T. Asha
Bench: P.T. Asha
S.A.No.874 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08.12.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.874 of 2023
and
C.M.P.No.27667 of 2023
Mrs.S.Ramani Bai
… Appellant
Vs.
1.Mrs.S.Sakunthala
2.Mrs.S.Uma
3.Mr.S.Suresh
4.Mr.S.Kasthuri
5.Mr.Liyakath Ali
... Respondents
1/14
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S.A.No.874 of 2023
Prayer:- Second Appeal is filed under Section 100 of C.P.C against
the Judgement and Decree made in A.S.No.11 of 2017 dated
20.09.2021 on the file of the District Court, Uthagamandalam
confirming the judgement and decree in O.S.No.34 of 2013 dated
22.04.2016 on the file of the Sub Court Uthagamandalam.
For Appellants : Mr.B.Kumarasamy
For Respondents : Mr.Sharath Chandran [R.5]
JUDGEMENT
The plaintiff who has unsuccessfully contested the suit for
partition and separate possession is the appellant before this Court and
given below are the facts of the case in a nutshell with the parties being
referred to in the same litigative status as before the Trial Court.
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2. The plaintiff had filed suit O.S.No.34 of 13 on the file of the
Sub Court, Uthagamandalam for the above-referred relief.
3. It is the case of the plaintiff that the suit property originally
belonged to her father Subha Rao, he having purchased the same under
a registered sale deed dated 13.12.1972. It is her case that her father
was in possession and enjoyment of the suit property till his death on
13.09.2009. She would submit that she and defendants 2 to 4 are the
children of the said Subha Rao and Sakunthala, the 1st defendant who
is the wife of the said Subha Rao. She would therefore contend that on
the death of Subha Rao intestate, the property devolved on the plaintiff
and the defendants 1 to 4 equally. The plaintiff would submit that she
was therefore entitled to a 1/4th share under Section 14 of the Hindu
Succession Act 1956.
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4. While so, the 5th defendant who is a stranger to the family had
come forward with a claim that he is an agreement holder and in
possession of the suit property by virtue of a sale agreement. The
plaintiff would submit that such an agreement was not in existence and
the 5th defendant was not in possession of the suit property.
5. Even assuming without admitting that the 5th defendant had
entered into an agreement, the plaintiff is not bound by the agreement
executed in favour of the 5th defendant. The plaintiff would submit that
she had been taking care of the defendants 1 to 4. However, it is only
recently she came to learn that defendants 1 to 4 had turned against her
and were desirous of enriching themselves and were therefore
colluding with the 5th defendant. The plaintiff would submit that the
properties were being enjoyed in common and she is entitled to a 1/5th
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share of the property. Therefore, she had come forward with the suit in
question.
6. The defendants 1 to 4 remained ex parte and it was only the 5th
defendant who had contested the suit. The 5th defendant would contend
that Subha Rao, the owner of the property had entered into an
agreement of sale dated 23.10.2008 wherein he agreed to sell the suit
property to the 5th defendant for a sale consideration of Rs.25,70,000/-
free from all encumbrances and claims. The said Subha Rao had
received only a sum of Rs.7,00,000/- on the date of execution of the
sale agreement at Mettupalayam. It is also his contention that
defendants 1 to 4 had witnessed the execution of this agreement.
7. Under Clause 4 of the sale agreement, the vendor, Subha Rao
had undertaken to vacate the tenants in the property and the sale was to
be concluded only when the said Subha Rao was in a position to
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deliver vacant possession of the suit property to the 5th defendant.
8. On 01.12.2008, the 4th defendant and her husband
Mr.C.Sankara Rao had received a further payment of Rs.1,50,000/-
from the 5th defendant on behalf of Subha Rao. The receipt of the
money had also been endorsed in the reverse side of the sale
agreement. The 5th defendant would submit that Subha Rao had also
delivered the original sale deed dated 13.12.1972 to him.
9. The 5th defendant would further submit that on 26.05.2009, a
supplemental sale agreement to the original sale agreement dated
23.10.2008 was executed by Subha Rao as a vendor and the plaintiff
and defendants 2 to 4 as second parties and the 5th defendant as the
purchaser. The supplemental sale agreement affirmed and reiterated the
agreement of sale dated 23.10.2008. The said supplemental agreement
also recites that the defendant had made a further payment of
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Rs.2,00,000/-on 01.12.2008 and the vendor had also delivered vacant
possession to the 5th defendant. The 5th defendant after taking
possession had made improvements to the property by renovating the
building and since then has been in the possession and enjoyment of
the property.
10. The 5th defendant would submit that when he had entered
into an agreement of sale with Subha Rao, the building in the suit
property was in a dilapidated condition. Pursuant to the supplemental
sale agreement and delivery of possession, the 5th defendant had spent
over Rs.20,00,000/- to renovate the building and bring it to a better
condition. The supplemental sale agreement further recites that when
the 5th defendant had arranged for the execution and registration of the
sale deed by paying the balance sale consideration to Subha Rao and
had accordingly approached the Joint Sub Registrar No.1,
Udhagamandalam he was informed that the property in question was a
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Wakf property and that registration could not take place. The said
Subha Rao had also called upon the 5th defendant to make further
payment of Rs.8,00,000/- as he was in need of money. The sum of
Rs.8,00,000/- was also paid by the 5th defendant.
11. The 5th defendant would further submit that the plaintiff is
one of the signatories to the supplemental sale agreement and that
being the case she is now estopped from feigning ignorance about the
agreement of sale entered into between the 5th defendant and Subha
Rao. The 5th defendant would submit that the property was being
wrongly shown as Wakf property since the same belonged absolutely
to Subha Rao.
12. Meanwhile, defendants 1 to 4 insisted upon the 5th defendant
paying a further sum of Rs.8,70,000/- constituting the balance sale
consideration with some extra amount as exgratia payment as they were
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in difficulties. The 5th defendant would submit that he had agreed to
pay an additional sum of Rs.30,000/- thereby making the total of
Rs.9,00,000/-. Therefore, he would submit that the plaintiff has come
to Court with unclean hands and has to be non-suited.
13. The Trial Court had framed 5 issues. Before the Trial Court,
the plaintiff had examined herself as P.W.1 and two others as P.W.2
and P.W.3 and marked Ex.A.1 to A.6. On the side of the defendant, the
5th defendant had examined himself as D.W.1 and a staff of the Sub
Registrar Office, Mr.Mano Kumar as D.W.2 and marked Ex.P.1 to P.8.
The defendants 1 to 4 remained ex parte.
14. Ultimately, the Trial Court had dismissed the suit. Aggrieved
by the said dismissal order, the plaintiff had filed A.S.No.11 of 2017,
on the file of the District Judge, Udhagamandalam, Nilgiris. The
learned appellate Judge had also proceeded to dismiss the appeal and
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confirmed the judgment and decree of the Trial Court. Aggrieved by
this, the plaintiff is before this Court.
15. Heard the counsel for the appellant for admission.
16. The admitted case of both parties is that the property
belonged to one Subha Rao whose wife is the 1st defendant and the
plaintiff and defendants 2 to 4 are his children.
17. The plaintiff’s case is that the said Subha Rao had died
intestate leaving behind the plaintiff and defendants 1 to 4 and each of
them became equally entitled to the suit property.
18. The 5th defendant who had alone contested the case would
submit that he had entered into an agreement of sale Ex.B.3 dated
23.10.2008 with the said Subha Rao. Admittedly, the property is the
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self-acquired property of Subha Rao. It is also seen that apart from the
agreement of sale Ex.B.3, the parties have entered into a supplemental
agreement Ex.B.1 in which the plaintiff is also a party. The plaintiff has
suppressed this fact in her pleadings.
19. The 5th defendant had also produced the original sale deed
dated 13.12.1972 executed in favour of Subha Rao which has been
marked as Ex.B.4. Under Ex.B.5, confirmation and declaration letter
dated 04.05.2011, defendants 1 to 4 had confirmed the agreement
between the 5th defendant and the said Subha Rao. Under the said
letter, defendants 1 to 4 had further declared that the entire sale
consideration had been settled by the 5th defendant and the 5th
defendant had no further liability towards the plaintiff.
20. The plaintiff had admitted her signature in the supplemental
sale agreement, Ex.B.7 dated 26.05.2009,. Further, the plaintiff is
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working in the Collector’s Office and by no stretch of imagination can
she be lured into affixing her signature to the documents, namely, the
sale agreement and the supplemental sale agreement and she cannot
now turn around and state that the same is a fabricated and created
document. The plaintiff has not been able to substantiate the contention
raised by her and there appears to be no Substantial Question of Law
involved awaiting the consideration of this Court. Accordingly, the
above Second Appeal stands dismissed. No costs. Consequently, the
connected Miscellaneous Petition is closed.
08.12.2023
Index: Yes/No
Speaking order/non-speaking order
Neutral Citation: Yes/No
shr
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To
1. The District Court, Uthagamandalam.
2. The Sub Court Uthagamandalam.
3. The Section Officer,
V.R.Section,
High Court, Madras.
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P.T.ASHA, J.,
shr
and
08.12.2023
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