Madras High Court
Uma Maheswari vs Kuppusami on 27 January, 2023
A.S.No.635 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 27.01.2023
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
A.S.No.635 of 2016
and
C.M.P.No.18335 of 2016
Uma Maheswari ... Appellant
Vs.
Kuppusami ... Respondent
Prayer : Appeal Suit filed under Section 96 of Code of Civil Procedure
against the judgment and decree dated 29.04.2016 in O.S.No.126 of 2014
on the file of the I Additional District and Sessions Court, Cuddalore.
For Appellant : Mr.D.Baskar
For Respondent : Mr.P.Muthukumarasamy
Page 1 of 7
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A.S.No.635 of 2016
JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.)
The plaintiff in the suit in O.S.No.126 of 2014 on the file of the I
Additional District and Sessions Court, Cuddalore, is the appellant in the
above appeal. The appellant filed the suit against her own brother for
partition of her ½ share in the suit property. The suit property consists of
two items.
2.It is the case of the plaintiff that the suit properties originally
belonged to the father of the plaintiff and defendant, by name Dhanakodi
Asari, and that the property devolved on the plaintiff, defendant and mother
of plaintiff, who also died. Even though a few litigations are referred to in
the plaint, the specific case of the plaintiff is that she is entitled to 1/3 share
on the date of death of her father. In the plaint, it is stated that the defendant
had agreed to pay plaintiff and his mother a sum of Rs.6 Lakhs each for the
release of their share in the suit property and that a release deed dated
18.05.2007 was also executed by the plaintiff and her mother in favour of
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A.S.No.635 of 2016
the defendant. Having admitted the execution of the release deed, the stand
taken by the plaintiff is that the defendant, who promised to pay a sum of
Rs.6 Lakhs each, did not pay any amount and that therefore, the document
of release is invalid.
3.The defendant remained ex parte before the trial Court.
4.The trial Court, after finding that the document Ex.A1-release deed
dated 18.05.2007 filed by the plaintiff shows that the plaintiff and her
mother had relinquished their right upon receipt of a sum of Rs.2 Lakhs
each from the defendant, held that the plaintiff is estopped from letting in
any oral evidence contrary to the terms of the document Ex.A1 under
Section 92 of the Evidence Act. Therefore, the suit was dismissed.
5.Challenging the judgment and decree of the trial Court dismissing
the suit filed by the plaintiff, the above appeal is filed.
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A.S.No.635 of 2016
6.Learned counsel appearing for the appellant/plaintiff submitted that
the defendant had remained ex parte and that therefore, in the absence of
any defence, the trial Court ought to have decreed the suit for partition,
having regard to the specific plea of the plaintiff. He also submitted that
Section 92 of the Evidence Act is not applicable to a case where the plaintiff
has specifically pleaded that there is no consideration for the document.
7.This Court is unable to accept the arguments of the learned counsel
appearing for the appellant. First of all, the plaintiff has categorically
admitted the execution of the release deed by the plaintiff and her mother
upon receipt of a sum of Rs.2 Lakhs each. Though the plaintiff disputed the
actual receipt of a sum of Rs.2 Lakhs as stated in the document Ex.A1, the
trial Court has rightly held that the plaintiff cannot let in any oral evidence
to prove her stand which is admittedly in variance with the terms of the
document. In the present case, the plaintiff is a party to the release deed
which clearly refers to disposition of the property for a valid consideration
as stated in the document. It is admitted that Ex.A1-release deed was
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A.S.No.635 of 2016
executed by the plaintiff and her mother. When the terms of the release are
reduced to form a document and the execution and registration of the same
is proved, no oral evidence or statement shall be admitted as between the
parties to any such instrument for the purpose of contradicting, varying or
adding or subtracting its terms. Though proviso (1) to Section 92 of
Evidence Act save the pleading which would invalidate the document, this
Court is unable to find any plea which would invalidate the registered
release deed whose execution is admitted. Though it is pleaded in the plaint
that no consideration was paid under the release deed, the fact that the
plaintiff has acknowledged the receipt of a sum of Rs.2 Lakhs towards her
share to release the same in favour of the defendant, is admitted. In the
plaint, it is stated that, in order to avoid taxation, a formal recital was made
as if the releasor had received a sum of Rs.2 Lakhs. The plaintiff stated that
the defendant agreed to pay plaintiff the value of her share but did not pay
any amount as promised. The document, therefore, cannot be challenged for
want of consideration or failure of consideration. The suit is filed in 2014,
seven years after the release deed, without a prayer to set aside the
document of release. Plaintiff cannot avoid the registered deed of
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A.S.No.635 of 2016
conveyance on the grounds alleged in the plaint.
8.Having regard to the facts admitted and recorded by the trial Court,
this Court finds no reason to interfere with the findings of the trial Court.
Hence, this appeal is liable to be dismissed for want of merits. Accordingly,
this appeal is dismissed. However, considering the relationship between
the parties, there shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
(S.S.S.R., J.) (A.A.N., J.)
27.01.2023
mkn
Internet : Yes
Index : Yes / No
To
1.The I Additional District and Sessions Judge,
Cuddalore.
2.The Section Officer,
VR Section, High Court,
Chennai.
https://www.mhc.tn.gov.in/judis
A.S.No.635 of 2016
S.S. SUNDAR, J.
and
A.A.NAKKIRAN, J.
mkn
A.S.No.635 of 2016
27.01.2023
https://www.mhc.tn.gov.in/judis
