Madras High Court
P.Shantha Baby vs Janaki Lakshmi on 13 March, 2023
A.S.(MD)No.46 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 13.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.(MD)No.46 of 2014
and
M.P.(MD)No.1 of 2014
1.P.Shantha Baby
2.C.Ilaya Perumal
3.S.Sundar Raj ...Appellants/
Defendants 1 to 3
Vs.
1.Janaki Lakshmi ... Respondent /Plaintiff
2.V.Vasantha
3.V.Asha
4.V.Premila
5.V.Vinoth Selvam ...Respondents 2 to 5 /Defendants 4-7
PRAYER: This Appeal Suit is filed under Section 96 of the Civil Procedure Code,
to set aside the decree dated 27.09.2013 made in O.S.No.71 of 2012 on the file of
the III Additional District and Sessions Court, Tirunelveli and decree the suit with
costs.
For Appellants : Mr. A.Arumugam
For R2 to R5 : Mr.S.P.Maharajan
1/10
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
JUDGMENT
This appeal has been directed against the judgment and decree passed by
the III Additional District and Sessions Court, Tirunelveli in O.S.No.71 of 2012
dated 27.09.2013.
2.For the sake of convenience, the parties are referred to herein, as per
their rank before the Trial Court.
3. The brief facts, leading to the filing of this Appeal Suit, are as
follows:-
(i) The suit property originally owned by one Arjunan. He had three
sons and one daughter. The second son namely, Virutha Selvam predeceased his
father. The plaintiff, who is the daughter of Ramachandran, filed a suit claiming
1/4 share in the suit property. The defendants 4 to 7 are the legal heirs of Virutha
Selvam, who predeceased his father Arjunan, the original owner of the property.
The defendants 1 to 3 are the subsequent purchasers of the 3/4 share in the entire
property from the other legal heirs of Arjunan except Ramachandran. The trial
Court granted preliminary decree in favour of the plaintiff for 1/4 share and also
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
granted preliminary decree of 1/4 in favour of the 4 to 7 defendants. Challenging
the same, now the defendants 1 to 3, who are the subsequent purchasers, have filed
the present appeal.
3. In the written statement, the contention of the defendants 4 to 7 before
the trial Court is that though they have entered into an sale agreement in respect of
their shares in favour of the defendants 1 to 3, based on the power of attorney
executed in favour of Sermen and Jacob Jayachandra, they have not received any
sale consideration on the basis of the sale deed executed on the strength of the
power of attorney.
4.Based on the oral and documentary evidence, the trial Court had
framed the following issues:
1.Whether the plaintiff has got ¼ share in the suit property?
2.Whether the defendants 4 to 7 have got 1/4 share in the suit property?
3.Whether the plaintiff and the defendants 4 to 7 are entitled to get a
preliminary decree for partition as prayed for?
4.To what relief?
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
Additional issue framed on 31.07.2013:
1.Whether the defendants 1 to 3 are entitled to get 3/4 share in the suit
property?
5. Before the trial Court, on the side of the plaintiff P.W.1 was examined
and Ex.A1 to A4 were marked. On the side of the defendants D.W.1 to D.W.4
were examined and Ex.B1 to Ex.B3 were marked.
6.On the basis of the evidence and materials, the trial Court had granted
preliminary decree for 1/4 share in favour of the plaintiff and also preliminary
decree for 1/4 share in favour of the defendants 4 to 7 holding that they have not
received any sale consideration, despite the sale deed executed. Challenging the
same, the present appeal has been filed.
7.The learned counsel appearing for the appellants / defendants 1 to 3
submitted that the defendants 4 to 7/vendors of the appellants have not challenged
the sale deed so far. Materially, they have admitted the very execution of the sale
deed in favour of defendants 1 to 3 and also the power of attorney. Therefore,
once the title has been conveyed to the defendants 1 to 3, in the defence the
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
defendants 4 to 7 cannot contend that they have not received the sale
consideration. The only remedy for them is to file a suit to recover the amount.
Such being the position, the trial Court has granted preliminary decree in favour of
the defendants 1 to 4. While the title of the suit property has already been
conveyed and transferred in the name of the appellants herein, the judgment of the
trial Court is not in accordance with law.
8.The learned counsel for respondents 2 to 5/defendants 4 to 7 submitted
that the trial Court has considered the evidence of the defendants 4 to 7 that they
have not received any sale consideration and granted preliminary decree in favour
of the defendants 4 to 7. Therefore, the judgment of the trial Court does not
require any interference.
9.In the light of the above submission, now the points arise for
consideration in this appeal are as follows:
(i)Whether the defendants 4 to 7 /respondents 2 to 4 herein are entitled
to any preliminary decree despite the fact that their shares have already been
sold in favour of the appellants herein?; and
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
(ii)Merely on the basis of the plea of not receiving any consideration
without challenging the sale deed, whether the defendants 4 to 7 are entitled to
any partition?
10.It is not disputed by both sides that the suit property was originally
owned by one Arjunan. He had four children namely, Ramachandran, Sidharthan,
Thayammal and Virutha Selvam. The said Arjunan died on 21.12.1985, which is
also not disputed by both sides. After his demise, his each legal heirs are entitled
to 1/4 share. The plaintiff, who is the daughter of one Ramachandran / one of the
sons of the said Arjunan, after the death of his father, filed a suit claiming partition
of her 1/4 share on the basis of the settlement deed executed in her favour by her
father in respect of his 1/4 share in the entire suit properties.
11.The other legal heirs of the Arjunan namely, Sidharthan and
Thayammal had already executed sale deed in favour of the defendants 1 to 3 in
respect of their shares in the property. Similarly, the defendants 4 to 7, who are the
legal heirs of Virutha Selvam, who is the predeceased son of Arjunan, also
executed a sale deed dated 04.11.2011. The sale deed was executed on the
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
strength of the registered power of attorney deed dated 14.07.2010 executed by the
defendants 4 to 7, in favour of one Serment and Jacob Jeyachandra. The said
document was also marked as Ex.B1. Based on the above, the 1/4 share belonging
to the defendants 4 to 7 was also conveyed in favour of defendants 1 to 3 by sale a
deed dated 04.11.2011 on the strength of the power deed dated 14.07.2010 by the
power agent of the legal heirs of Arjunan. These facts are not in dispute. The only
contention raised by the defendants 4 to 7 are that though they had received some
consideration on the basis of the agreement, at the time of entering into an sale
agreement, subsequent payments were not made. Based on the said contention,
the trial Court passed the decree by holding that the sale deed is not supported by
the consideration.
12. It is relevant to note that if an agent has not submitted proper
accounts statement after execution of the sale deed, the defendants 4 to 7/ the
respondents 2 to 5, being the principal ought to have proceeded against the agent
by filing a suit to avoid transaction. But the defendants 4 to 7 did not file any suit
for recovery of money or any suit to avoid further transaction over the suit
property. When the sale deed is executed and the property is already conveyed to
another party, merely on the plea of non payment, as the defendant in the partition
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
suit, one cannot challenge the very sale deed, by which the title has been already
divested and transferred to someone.
13.Such view of the matter, the decree granted by the trial Court in
favour of the defendants 4 to 7 despite the fact that their shares have already been
sold on the basis of the agreement for sale dated 14.07.2010 followed by an
absolute sale deed dated 14.11.2011, is set aside. The preliminary decree is passed
declaring the right of 3/4 share in the suit property in favour of the
defendants 1 to 3 and the plaintiff is entitled to 1/4 share in the suit properties.
14. Accordingly the points are answered and the Appeal Suit is partly
allowed. However, there shall be no order as to costs. Consequently, connected
miscellaneous petition is closed.
13.03.2023
NCC : Yes/NO
Index : Yes/No
Internet : Yes/No
ta
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
To
1.The III Additional District and Sessions Court,
Tirunelveli
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
A.S.(MD)No.46 of 2014
N.SATHISH KUMAR, J.
ta
Judgment made in
A.S.(MD)No.46 of 2014
13.03.2023
https://www.mhc.tn.gov.in/judis
