Madras High Court
Thangavel vs Vijaya on 3 January, 2023
S.A.No.1181 of 2005
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2023
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.1181 of 2005
Thangavel ...Appellant/Appellant/Defendant
Vs.
Vijaya ...Respondent/Respondent/Plaintiff
PRAYER: Second Appeal filed under Section 100 of the Code of
Civil Procedure against the Judgment and Decree dated 27.04.2005 in
A.S.No.126 of 2004 on the file of the learned I Additional District
Judge, Erode, confirming the Judgment and Decree dated 24.09.2003
in O.S.No.214 of 1997 on the file of the learned II Additional
Subordinate Judge, Erode.
For Appellant : Mr.R.Venkatesulu
For Respondent : Mr.C.A.Ramanan
for Mr.N.Manokaran
1/21
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S.A.No.1181 of 2005
JUDGMENT
The defendant who has lost in both the Courts below in a suit for
partition is the appellant before this Court. The parties are referred to
in the same litigative status as in the Original Suit.
2.The facts in brief are as follows:
The plaintiff had filed a suit O.S.No.214 of 1997 on the file of
the learned II Additional Subordinate Judge, Erode, for a partition and
for permanent injunction restraining the defendant from creating any
alienation or encumbrance in respect of the suit schedule property. It
is the case of the plaintiff that the suit property belonged to one
Ramasamy Gounder, son of Rakkiya Gounder, under the Sale Deeds
dated 14.05.1959, 13.07.1959 and 29.04.1963. The said Ramasamy
Gounder during his life time had executed a Gift Settlement Deed dated
04.11.1966 settling the properties on his wife Chinnammal and their
sons, namely, Subramani, Thangavel (the defendant) and Arasappa
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Gounder. Besides the three sons Ramasamy had two daughter, namely,
Rukmani and Kannammal. Arasappa Gounder, one of the sons of
Ramasamy died leaving behind him surviving his wife Padmavathy @
Chinnammal and his minor daughter Vijaya (the plaintiff).
Immediately after the death of Arasappa Gounder, Padmavathy @
Chinnammal had executed a Release Deed dated 17.06.1981 releasing
her share and the share of the minor child, namely, Vijaya in favour of
her mother-in-law Chinnammal and brother-in-law Thangavel after
receiving a sum of Rs.10,000/-. The plaintiff would contend that the
Release Deed had been fraudulently obtained and is not binding upon
her, particularly, since she was minor at that point of time. The
plaintiff therefore issued a notice dated 18.04.1997 calling upon the
defendant to partition the property to which reply notice dated
30.04.1997 was issued denying the claim of the plaintiff. The plaintiff
has therefore came forward with the instant suit for the relief stated
supra.
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S.A.No.1181 of 2005
3.The defendant had filed a Written Statement inter alia denying
the claim of the plaintiff and contending that the suit itself was not
maintainable. He would submit that the Release Deed has been
executed by the mother of the plaintiff fully comprehending the nature
of the document and if aggrieved that the same was fraudulently
obtained she should have immediately come forward and set aside the
Release Deed. The defendant would further submit that the mother of
the plaintiff had also received sale consideration and therefore, the
plaintiff was bound by the said document. The defendant had denied
the allegations of fraud contained in the Plaint. The defendant would
submit that the Release Deed is a registered document and binding on
both the plaintiff as well as her mother. The defendant further submit
that he has been in continuous possession and enjoyment of the
property all these years. That apart, there is no relief sought for setting
aside the Release Deed executed by her mother. The defendant had
also pleaded limitation, Therefore, he contended that the suit is liable
to be dismissed.
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S.A.No.1181 of 2005
4.The learned II Additional Subordinate Judge, Erode, had
framed the following issues:
“(1)/tHf;F fhyhtjp Mfptpl;ljh?
(2)jhth brhj;jpy; thjpf;F ghf chpik
cs;sjh?
(3)thjp nfhUk; ghfg;gphptpida[k; jdpj;j
RthjPdk; fpilf;ff;Toajh?
(4)thjp nfhUk; epue;ju cWj;Jf;fl;lisg;
ghpfhuk; fpilf;ff; Toajh?”
5.The plaintiff had examined herself as PW1 and one
Kuppusamy as PW2 and marked Ex.A.1 to Ex.A.9. On the side of the
defendant, two witnesses were examined and Ex.B.1 to Ex.B.5 were
marked. The learned II Additional Subordinate Judge had decreed the
suit. Challenging the same, the defendant had filed A.S.No.126 of
2004 on the file of the learned I Additional District Judge, Erode. The
learned Judge had also by Judgment and Decree dated 27.04.2005
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S.A.No.1181 of 2005
dismissed the appeal. Aggrieved over the same, the defendant is before
this Court.
6.The Second Appeal has been admitted on the following
Substantial Questions of Law:
“(1)Whether the suit is not barred by limitation
when the plaintiff had not filed the same within three
years from the date of her attaining majority?
(2)Whether the plaintiff who is admitted an eo-
nominee to Ex.B.1 can maintain a simple suit for partition
and separate possession without seeking the relief of
cancellation of Ex.B.1?
(3)Whether the Courts below have misconstrued the
character of Ex.B.1?”
7.The defendant/appellant had filed their Written Arguments
inter alia contending that the suit is barred by limitation since the same
has not been filed within three years of the minor attaining the
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S.A.No.1181 of 2005
majority. The Release Deed had been executed on 17.06.1981 by the
plaintiff's mother fully comprehending the nature of the document
after receiving the consideration of Rs.10,000/-. The mother as the
natural guardian has executed the Release Deed for the welfare of the
minor and therefore, the plaintiff is bound by the same.
8.The learned counsel appearing for the appellant would rely
upon the Judgment of this Court reported in 2013-4-LW.-371 [Jeyam
v. Rejimoon and others] in support of the above contention. He
would further submit that in an application filed under Article 60 of the
Limitation Act, 1960, the suit to set aside the transfer of property made
by the guardian of a Ward has to be filed within three years from the
date of the minor attaining the age of majority. In the instant case, the
suit has been filed six years after she has attained the majority and
therefore, the Courts below ought to have dismissed the suit. The
consideration paid for the Release Deed has also been deposited in the
name of the minor and was being periodically extended. The said
amount has been used for the benefit of the plaintiff who has
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S.A.No.1181 of 2005
withdrawn the same. The next ground of which the decree was
challenged is that the suit for partition without seeking the relief of
cancellation is not maintainable, particularly, when the plaintiff is an
eo-nominee party in Ex.B.1 – Release Deed.
9.In support of his argument, the learned counsel appearing for
the appellant would rely upon the following Judgments:
(1)AIR 2020 Mad 101
Vajjiram and others v. Annadurai and others
(2)1996 (1) CTC 661
P.B.Ramjee and two others v. P.B.Lakshmanaswamy
Naidu and ten others
(3)1993 (2) MLJ 428
Sridharan and others v. Arumugam and others
(4)2004 13 SCC 480
Nagappan v. Ammasal Gounder
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(5)(2001) 2 CTC 641
K.Jagannathan v. A.M.Vasudevan Chettiar and 12 others
Therefore, it is the contention of the learned counsel appearing for the
appellant that the suit filed simply for partition without seeking the
relief of cancellation is therefore not maintainable. In all, the learned
counsel would therefore pray the appeal be allowed and the Judgment
and Decree of the Courts below to be set aside.
10.Per contra, Mr.C.A.Ramanan, learned counsel appearing for
the respondent/plaintiff would submit that the Release Deed as such
has been fraudulently obtained. He would submit that the Release
Deed has been executed within a few days of the death of the plaintiff's
father. It would clearly show the coercion and undue influence that has
been asserted on the mother of the minor. He would contend that even
in the deposit, the mother of the plaintiff has not been shown as a
guardian and one R.Kuttia Gounder has been shown as the guardian of
the minor daughter which would clearly show that the Release Deed
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S.A.No.1181 of 2005
has been obtained only by coercion and since the document has been
obtained by fraud there is no necessity for the plaintiff to specifically
seek the relief for setting aside the document. That apart, he would
submit that the mother had no authority to release the share of the
plaintiff in the suit property. Hence, he would contend that there is no
necessity to seek for setting aside the decree. The learned counsel
appearing for the respondent would rely upon the Judgment reported in
(1993) 2 Supreme Court Cases 402 [G.Annamalai Pillai v. District
Revenue Officer and others) wherein the Hon'ble Supreme Court has
held that the transfer of a minor's property without permission of the
Court is voidable under Section 8(3) of the Hindu Minority and
Guardianship Act. When a person who is entitled to dissent from the
alienation, does so, his dissent is in relation to the transaction as such
and not merely to the possession of the alienee on the date of such
dissent. Therefore, it is as if the transaction had never taken place. He
would also rely upon the Judgment of this Court reported in 1980 (2)
MLJ 296 [Ameena Bi v. Kuppuswami Naidu and others], wherein
this Court held that the alienation effected by the mother who had no
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legal competence to act on behalf of the minor/plaintiffs is equivalent
to alienation made by intermediary. Therefore, the provisions of
Article 44 of the Limitation Act, 1908, which corresponds to Article 60
of the Limitation Act, 1963, will not be applicable to the case. That
was also a case where a joint family property / coparcenary property
was being dealt with after the death of the father/manager. The learned
Judge has opined that in the case of the coparcenary property after the
death of the manager, the interest of the minor will pass to the eldest
son as Kartha, the mother does not feature therein. The learned Judge
therefore held that the provisions of Article 60 would not apply and the
suit brought within 12 years from the date of alienation was well within
the time.
11.The learned counsel would also rely upon the Judgment in
2013 (2) CTC 626 [Selvam and others v. Mangaiyarkarasi], where
while considering the sale of the minor's share of the property by the
mother without obtaining permission of the Court, the learned Judge
had opined that the sale would be voidable at the instance of the minor.
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It was also a case where permission of the Court was not obtained.
Therefore, he would submit that since the entire transaction is fraught
by fraud the very transaction is not sustainable and therefore, the
document can be set aside at any point of time without being fettered
by the rules of limitation.
12.Heard the learned counsels appearing on either side and
perused the papers.
13.The Release Deed which the defendant puts forward for not
complying with the plaintiff's request for partition smacks of fraud.
The deed has come into existence within 17 days of the death of
Arasappa Gounder, the father of the plaintiff. The property which is
the subject matter of the release is a total extent of 2 acres and 13 cents
which appears to be released for the consideration of just Rs.10,000/-.
The Valuation Statement attached to the Release Deed Ex.B.1 would
show the value of the property @ Rs.22,500/-. Whileso, the release is
effected for a mere sum of Rs.10,000/-. That apart, the reason for the
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release is the inability of the mother to have the property partitioned
and for the future benefit of the minor. A sum of Rs.10,000/- has been
put in a Fixed Deposit however the mother is not shown as the
guardian and it is some third party Kuttia Gounder who has been
shown as guardian when admittedly the mother is alive. All of these
would go to show that the defendants had orchestrated the entire
transaction taking advantage of the fact that the minor's mother was
grieving the death of her husband who had left behind herself and an 8
year old daughter.
14.As regards the question of limitation, the execution of the
Release Deed had come to the knowledge of the minor only under
Ex.A.7 dated 30.04.1997 which was the reply notice issued by the
defendant to the legal notice issued by the plaintiff seeking the partition
under Ex.A.6 dated 18.04.1997. As soon as the defendants had come
to know about the Release Deed the suit has come to be filed. As
already submitted, the execution of the Release Deed is shrouded with
suspicion and it is ample evident that the defendants have exercised
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undue influence upon the plaintiff's mother to execute the Release
Deed. Considering the time lag between the death of the plaintiff's
father and the execution of the Deed, the deposit made in the name of
the minor showing a third party as guardian of the minor where the
minor's mother is alive would all go to highlight the document is
questionable and fraudulently obtained. Therefore, there is no
necessity for the plaintiff to seek the relief of setting aside the
document since the fraud vitiates all proceedings.
15.In the Judgment in (2010) 8 Supreme Court Cases 383
[Meghmala and others v. G.Narasimha Reddy and others], the
Hon'ble Supreme Court has observed as follows:
"33. Fraud is an intrinsic, collateral act, and fraud
of an egregious nature would vitiate the most solemn
proceedings of courts of justice. Fraud is an act of
deliberate deception with a design to secure something,
which is otherwise not due. The expression "fraud"
involves two elements, deceit and injury to the person
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deceived. It is a cheating intended to get an advantage.
(Vide Dr. Vimla Vs. Delhi Administration AIR 1963 SC
1572; Indian Bank Vs. Satyam Fibres (India) Pvt. Ltd.
(1996) 5 SCC 550; State of Andhra Pradesh Vs. T.
Suryachandra Rao AIR 2005 SC 3110; K.D. Sharma Vs.
Steel Authority of India Ltd. & Ors. (2008) 12 SCC 481;
and Regional Manager, Central Bank of India Vs.
Madhulika Guruprasad Dahir & Ors. (2008) 13 SCC
170).
34. An act of fraud on court is always viewed
seriously. A collusion or conspiracy with a view to
deprive the rights of the others in relation to a property
would render the transaction void ab initio. Fraud and
deception are synonymous. Although in a given case a
deception may not amount to fraud, fraud is anathema to
all equitable principles and any affair tainted with fraud
cannot be perpetuated or saved by the application of any
equitable doctrine including res judicata. Fraud is proved
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when it is shown that a false representation has been
made (i) knowingly, or (ii) without belief in its truth, or
(iii) recklessly, careless whether it be true or false.
Suppression of a material document would also amount to
a fraud on the court. (Vide S.P. Changalvaraya Naidu
(supra); Gowrishankar & Anr. Vs. Joshi Amba Shankar
Family Trust & Ors. AIR 1996 SC 2202; Ram Chandra
Singh Vs. Savitri Devi & Ors. (2003) 8 SCC 319; Roshan
Deen Vs. Preeti Lal AIR 2002 SC 33; Ram Preeti Yadav
Vs. U.P. Board of High School & Intermediate Education
AIR 2003 SC 4628; and Ashok Leyland Ltd. Vs. State of
Tamil Nadu & Anr. AIR 2004 SC 2836).
35. In kinch Vs. Walcott (1929) AC 482, it has been
held that:
"....mere constructive fraud is not, at all events
after long delay, sufficient but such a judgment will not
be set aside upon mere proof that the judgment was
obtained y perjury." Thus, detection/discovery of
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constructive fraud at a much belated stage may not be
sufficient to set aside the judgment procured by perjury.
36. From the above, it is evident that even in
judicial proceedings, once a fraud is proved, all
advantages gained by playing fraud can be taken away. In
such an eventuality the questions of non-executing of the
statutory remedies or statutory bars like doctrine of res
judicata are not attracted. Suppression of any material
fact/document amounts to a fraud on the court. Every
court has an inherent power to recall its own order
obtained by fraud as the order so obtained is non est."
16.Another fact this Court has to consider is "whether the mere
recital in the Deed that the transaction was for the benefit of the minor
would be sufficient for clothing the document with legal sanctity. In
the Judgment reported in AIR 1971 Supreme Court 1028 [Smt.Rani
and another V. Smt.Santa Bala Debnath and others],the Hon'ble
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Supreme Court has held as follows:
"Legal necessity does not mean actual compulsion:
it means pressure upon the estate which in law may be
regarded as serious and sufficient. The onus of proving
legal necessity may be discharged by the alienee by proof
of actual necessity or by proof that he made proper and
bona fide enquiries about the existence of the necessity
and that he did all that was reasonable to satisfy himself
as to the existence of the necessity. Recitals in a deed of
legal necessity do not by themselves prove legal
necessity. The recitals are, however, admissible in
evidence, their value varying according to the
circumstances in which the transaction was entered into.
The recitals may be used to corroborate other evidence of
the existence of legal necessity. The weight to be attached
to the recitals varies according to the circumstances.
Where the evidence which could be brought before the
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Court and is within the special knowledge of the person
who seeks to set aside the sale is withheld, such evidence
being normally not available to the alienee, the recitals
go to his aid with greater force and the Court may be
justified in appropriate cases in raising an inference
against the party seeking to set aside the sale on the
ground of absence of legal necessity wholly or partially,
when he withholds evidence in his possession."
17.It is needless to state that the Court has to consider the
paramount interest of the minor. The very transaction and the
consideration that is said to have been paid, the manner in which the
document Ex.B.1 has come into existence and the consideration that
has been received by both the plaintiff and her mother jointly would
clearly show that the interest of the minor has been given a total goby.
Therefore, there is nothing to show the possession granted by the
mother, especially, when the Deed reads that the release was on
account of the fact that it is not possible for her to partition and to take
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possession of the property. The Courts below have rightly considered
the evidence and allowed the suit. Therefore, the Substantial Questions
of Law No.1 to 3 are answered against the defendant.
The Second Appeal is dismissed. There shall be no order as to
costs.
03.01.2023
Index : Yes/No
Internet : Yes/No
Speaking order / Non speaking order
mps
To
1.The I Additional District Judge,
Erode.
2.The II Additional Subordinate Judge,
Erode.
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S.A.No.1181 of 2005
P.T. ASHA, J,
mps
S.A.No.1181 of 2005
03.01.2023
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