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
1/22
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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
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Arasappa 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 proceeded
to dismiss the suit. Challenging the same, the plaintiff 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
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S.A.No.1181 of 2005
dated 27.04.2005 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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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
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S.A.No.1181 of 2005
the Release Deed 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.
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Kuppuswami Naidu and others], wherein this Court held that the
alienation effected by the mother who had no 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
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had opined that the sale would be voidable at the instance of the
minor. 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,
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S.A.No.1181 of 2005
the release is effected for a mere sum of Rs.10,000/-. That apart, the
reason for the 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
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shrouded with suspicion and it is ample evident that the defendants
have exercised 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"
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involves two elements, deceit and injury to the person
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
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equitable doctrine including res judicata. Fraud is
proved 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
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be set aside upon mere proof that the judgment was
obtained y perjury." Thus, detection/discovery of
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
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the Judgment reported in AIR 1971 Supreme Court 1028 [Smt.Rani
and another V. Smt.Santa Bala Debnath and others],the Hon'ble
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
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S.A.No.1181 of 2005
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 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
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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
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,
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S.A.No.1181 of 2005
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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