Madras High Court
P.R.Mariappa Nadar (Died) vs L.Ganesan on 29 November, 2023
S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 29.11.2023
CORAM:
THE HONOURABLE MRS.JUSTICE KALAIMATHI
S.A.No.1064 of 2002 and S.A.(MD).No.590 of 2013
and
M.P.(MD).No.2 of 2013 in S.A.(MD).No.590 of 2013
S.A.No.1064 of 2002
P.R.Mariappa Nadar (died)
2.M.Alamelu
2nd appellant was brought on record as LR. of deceased
sole appellant vide Court order dated 09.03.2016
made in M.P.(MD).Nos.3 of 2013 to 5 of 2013. ... Appellants
Vs.
1.L.Ganesan
2.Suresh
3.Somu
4.Nelliyan ... Respondents
PRAYER: The Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 17.09.2001
made in A.S.No.11 of 2001 on the file of the Subordinate Judge,
Devakottai, confirming the judgment and decree dated 27.04.2001 made
in O.S.No.74 of 1999 on the file of the District Munsif cum Judicial
Magistrate, Karaikudi.
1/20
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
For Appellants : Mr.V.Meenakshi Sundaram
for Mr.D.Rajkumar
For Respondents : Mr.R.Sundar Srinivasan
S.A.(MD).No.590 of 2013
1.Alamelu
2.Solaimalai
3.Bhuvaneswari
4.Periyanayaki
5.Packiyasali
6.Saroja ... Appellants
Vs.
1.Suresh
2.Somu
3.Solaimuthu ... Respondents
PRAYER: The Second Appeal is filed under Section 100 of the Civil
Procedure Code, against the judgment and decree dated 04.04.2013
made in A.S.No.3 of 2013 on the file of Sub Judge, Devakottai,
confirming the judgment and decree dated 07.09.2012 made in O.S.No.
142 of 2004 on the file of the Additional District Munsif Court, Karaikudi.
For Appellants : Mr.V.Meenakshi Sundaram
for Mr.D.Rajkumar
For Respondents : Mr.R.Sundar Srinivasan
2/20
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
COMMON JUDGMENT
S.A.No.1064 of 2002: Being aggrieved by the judgment and
decree of dismissal by both the trial Court and the first appellate Court,
the daughter of the deceased Mariappa Nadar (sole plaintiff) has
preferred this second appeal. (O.S.No.74 of 1999 on the file of District
Munsif Court, Karaikudi, A.S.No.11 of 2011 on the file of Sub Court,
Devakottai).
2. S.A.No.590 of 2013: Aggrieved by the judgment and decree
passed by the trial Court as well as the first appellate Court, the second
appeal is preferred by the defendants. (O.S.No.142 of 2004 on the file of
District Munsif Court, Karaikudi, A.S.No.3 of 2013 on the file of Sub
Court, Devakottai.
3. As the property and the issue involved in both the appeals
are one and the same, on consensus, arguments were heard in both the
appeals and disposed of by this common judgment.
4. Parties are indicated as per their litigative status and ranking
referred before the trial Court.
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
5. S.A.No.1064 of 2002 [O.S.No.74 of 1999 on the file of
District Munsif Court, Karaikudi]
According to the plaintiff Mariappa Nadar, the suit property is in
possession of the plaintiff situate at Pallathur Village, present Ward No.
6, G.R.S.No.57/7, Patasalai Street, 15 cents. Before 37 years, one
Padmanabha Iyer constructed a tiled house and had been residing
there. At the instance of said Padmanabha Iyer, the plaintiff Mariappa
Nadar was also residing along with his family members. It is further
claimed that based on the same, the plaintiff had been in continuous
possession of the suit property. In 1921, the suit property was
purchased by one Kaleeswara Iyer. In 1924, partition taken place in
respect of the suit property.
6. Thereafter, Padmanabha Iyer came to the suit property as a
tenant. Subburama Iyer is the son of Kaleeswara Iyer. In 1979, the
plaintiff Mariappa Nadar's owner Padmanabha Iyer entered into an oral
sale agreement in respect of the suit property and advance amount was
also paid by Padmanabha Iyer.
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
7. The plaintiff further claims that the said Padmanabha Iyer
purchased 1/3rd share from Sankara Narayanan, who is the grandson of
Vaidyanatha Ganapadigal on 26.10.1979. In 1981, Padmanabha Iyer
also entered into a sale agreement with the son of Subburama Iyer viz.,
Sathyamoorthy in respect of 1/3rd share. In respect of the remaining 1/3rd
share, Padmanabha Iyer was permitted to enjoy the 1/3rd share. Hence,
he has got title to the suit property.
8. Mean while, misunderstanding arose between Padmanabha
Iyer and the first defendant Ganesan. The said Ganesan by utilising his
official position as Village Administrative Officer (VAO), created some
documents and one among them is power document.
9. The said Ganesan as a power agent of Subburama Iyer filed
a suit for declaration of title, recovery of possession and for rendition of
accounts and the first two reliefs were granted.
10. Mean while, E.P.No.114 of 1990 in O.S.No.56 of 1983 was
filed before Devakottai District Munsif Court by the first defendant. The
first defendant Ganesan attempted to recover the possession of the suit
property. Hence, the suit is filed for permanent injunction.
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
11. Per contra, the details of the entire plaint was seriously
disputed by the defendants and on behalf of the defendants, it was
claimed that there is no cause of action for the suit and the filing of mere
suit is not valid and sought for dismissal.
12. Based on the above said pleadings, the trial Court framed
the following issues:
(i) At the time of filing of the suit, the suit property was in
whose possession?
(ii) Whether the plaintiff is entitled to injunction as prayed for in
the plaint?
(iii) What are the other reliefs the plaintiff is entitled to?
13. At trial, P.Ws.1 and 2 were examined and Exs.A1 to A14
were marked. The sale deed executed by Subburama Iyer along with his
sons Sathyamurthy and Sundarraju in favour of Mariappa Nadar in
respect of the suit property, dated 23.03.1988 is Ex.A2. On the
defendants side, the first defendant Ganesan was examined as D.W.1.
Exs.B1 to B13 were marked. The sale deed dated 31.07.1981, executed
by the sons of Subburama Iyer viz., Sathyamurthy and Sundarraju in
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
favour of the first defendant Ganesan in respect of western side 8 cents
out of 15 cents is Ex.B1.
14. The trial Court concluded that as per the judgment passed
in O.S.No.56 of 1983 on the file of District Munsif Court, Devakottai,
Padmanabha Iyer was in permissive possession of the suit property
and he is not a tenant. It was further observed that plaintiff Mariappa
Nadar was admittedly staying along with the said Padmanabha Iyer and
the plaintiff cannot be a lawful occupant of the suit property. Therefore,
the plaintiff was denied the relief of permanent injunction and the suit
ended in dismissal.
15. Against the said judgment, the plaintiff Mariappa Nadar
preferred first appeal and the first appellate Court also dismissed the
appeal by observing that the plaintiff cannot be a lawful occupant of the
suit property.
16. Against the concurrent findings, at present, after the death
of Mariappa Nadar, his daughter Alamelu has preferred this second
appeal (S.A.No.1064 of 2002).
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
17. S.A.No.590 of 2013 [O.S.No.142 of 2004 on the file of
District Munsif Court, Karaikudi]
The above said Ganesan and his three children filed a suit in
O.S.No.142 of 2004 before the District Munsif Court, Karaikudi for
declaration of title and for recovery of possession in respect of the suit
property.
18. According to the plaintiff, originally the suit property was
purchased by one Kaleeswara Iyer in 1924. After his death, his only son
Subburama Iyer let out the suit property to Padmanabha Iyer and
Subburama Iyer had executed a power deed in favour of the deceased
first defendant. In order to evict Padmanabha Iyer, when the E.P.
proceeding was pending, the tenant Mariyappa Nadar and his family
members were brought to the suit property and they were staying there
and they are in occupation of the suit property illegally. Padmanabha
Iyer died in the year 1996.
19. It was further contended that he purchased part of the suit
property on 31.07.1981, from the sons of Subburama Iyer viz,
Sathyamurthy and Sundarraju. On 09.03.1986, Ganesan's brother
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
Chidambaram, on the strength of power deed executed by Subburama
Iyer in his favour, in turn executed a sale deed in favour of Ganesan in
respect of eastern 7 cents. It was further claimed by the plaintiff that on
17.03.1988, Subburama Iyer executed a ratification deed. The suit filed
by Mariappa Nadar in O.S.No.74 of 1999 on the file of District Munsif
Court, Karaikudi for the relief of permanent injunction was dismissed by
the trial Court as well as the first appellate Court. The plaintiff has been
paying the house tax and hence, declaration of title and recovery of
possession were sought for.
20. Whereas the defendants claimed that besides refuting the
allegations made in the plaint, Mariappa Nadar has purchased the suit
property from Subburama Iyer and his sons by way of sale deed on
23.03.1988. Based on the above said sale deed, they sought for
dismissal of the suit.
21. At trial, the third plaintiff Somu was examined as P.W.1.
Exs.A1 to A15 were marked. On the defendants side, D.Ws.1 and 2
were examined and Exs.B1 to B6 were marked.
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
22. The trial Court, after evaluating the evidence concluded
that based on Exs.A1 to A4, the first plaintiff Ganesan has got title over
the suit property. The plaintiffs 2 to 4 are the children of the deceased
first plaintiff Ganesan. Following the above said findings, the trial Court
also concluded that within three months, the defendants 2 to 7 had to
surrender the possession of suit schedule property to the plaintiff.
23. In both the suits, the suit property is one and the same and
separate judgments came to be passed.
24. Since the parties are one and the same and the suit
properties are also one and the same, both the appeals are taken up
together. After hearing both sides, substantial questions of law arise for
consideration as follows:
(i) Whether the vendor's of the plaintiff had exclusive
title over the suit property?
(ii) Whether the deed of rectification given by the vendor of
the plaintiff is legally valid document, recognising an invalid
document in the absence of fresh sale deed?
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
25. The learned counsel appearing for the appellants in both
the appeals Mr.V.Meenakshi Sundaram would strenuously contend that
there is no cause of action for the plaintiff in O.S.No.142 of 2004 with
regard to recovery of possession. He also drew the attention of this
Court that during the life time of Subburama Iyer, sons would never get
any title in the suit property and as such, Ex.A1, sale deed cannot
convey a title to Ganesan in respect of western 8 cents.
26. On the other hand, the learned counsel appearing for the
respondents Mr.R.Sundar Srinivasan would vehemently argue that
based upon Exs.A1 to A3 documents, Ganesan became owner of the
entire extent of the suit property. It is further strengthened by Ex.A4,
ratification deed executed by Subburama Iyer in favour of Ganesan on
17.03.1988. It is the further argument of the learned counsel that both
the Courts on finding of facts favoured the first respondent Ganesan.
27. The moot point in this appeal is who has got a better title
for the suit property whether Mariappa Nadar or Ganesan.
28. Before going into the main issue, two documents have
been filed by the appellants in the Second Appeal No.590 of 2013,
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
under Order 41 Rule 27 of C.P.C., and sought for permission to receive
two documents viz.,
(i) Ratification deed executed by Subburama Iyer in favour of
Ganesan dated 17.03.1988, in respect of the suit property.
(ii) Certified copy of sale deed executed by one Ramachandra
Iyer in favour of Kaleeswara Iyer dated 19.10.1921, in respect of the suit
property.
29. In an application under Order 41 Rule 27 of C.P.C., in
order to advance the cause of justice, at a later stage, documents may
be received in evidence. The first document is already marked as Ex.A4.
The sale deed in the name of Kaleeswara Iyer is not marked by either
side. Absolutely there is no dispute that the suit property originally
purchased by Kaleeswara Iyer. As the said sale deed is the base
document of both the cases, the second document mentioned supra is
received and marked as Ex.B21 (S.A.(MD).No.590 of 2013).
30. To buttress the argument of the learned counsel for the
respondents, following judgments were referred to:
(i) Kajaushan and others vs. Govindakarani in Second Appeal
Nos.67 and 68 of 2012, judgment of this Court, dated 11.11.2014.
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
(ii) Rajkumar Selvanathan vs. Murugan in A.S.Nos.46 and 91
of 2013, judgment of this Court, dated 30.09.2021.
(iii) Amar Nath vs. Gian Chand and another in Civil Appeal No.
5797 of 2009, judgment of the Supreme Court, dated 28.01.2022, in
order to contend that when the registered power of attorney deed is
cancelled, the same should have intimated to the agent in writing about
the cancellation of power. In the absence of the same, the action of the
power agent is not liable to be questioned.
(iv) Suresh Chand vs. Kundan and others reported in 2000 (7)
SCALE 620, judgment of the Supreme Court, dated 07.09.2000, in order
to contend that even if the immovable property is purchased without
mentioning the building thereon, as per Section 8 of the Transfer of
Property Act, 1882, all the things attached with the earth are included in
the land so also the building constructed thereon.
31. Both sides have not disputed as to the fact that originally
the suit property was purchased by one Kaleeswara Iyer on 19.10.1921,
as per Ex.A16. The plaintiff Ganesan claimed to have become the owner
of the property, based on Exs.B1 to B4. The details of the said
documents have already been tabulated supra.
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
32. It is not in dispute that Subburama Iyer is the only son of
Kaleeswara Iyer. Subburama Iyer had two sons viz., Sathyamoorthy and
Sundarraju. The said two sons of Subburama Iyer had executed a sale
deed in favour of Ganesan on 31.07.1981, in respect of western side 8
cents of the suit property.
33. The learned counsel appearing for the respondents would
stoutly contend that when the father was alive, the sons are not entitled
to sell the undivided share as per Ex.A16, dated 19.10.1921. On the
other hand, the learned counsel appearing for the respondents
Mr.R.Sundar Srinivasan drew the attention of this Court that as
contended by the learned counsel for the appellants the sale deed was
not executed without the knowledge of Subburama Iyer, because
Subburama Iyer has signed as identifying witness before the Sub
Registrar. Therefore, I do not find much force in the arguments of the
learned counsel for the appellants.
34. That apart, Ex.A2 is the special power of attorney deed
executed by Subburama Iyer in favour of Chidambaram, brother of
Ganesan, in order to sell the suit property. This was cancelled by
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
Subburama Iyer on 03.03.1988 (Ex.B1). But, on the strength of Ex.A2,
power, the said Chidambaram executed a sale deed in favour of his
brother Ganesan in respect of eastern 7 cents (Ex.A3). The learned
counsel appearing for the appellants Mr.V.Meenakshi Sundaram would
vehemently contend that the special power of attorney executed by
Subburama Iyer was cancelled by him through Ex.B1, as mentioned
supra, the sale deed, Ex.A3, does not have any sanctity at all and
ultimately the sale deed cannot be held to be valid. In turn, the learned
counsel appearing for the respondents would drew the attention of this
Court by referring to the decisions of this Court in Kajaushan and others
vs. Govindakarani in Second Appeal Nos.67 and 68 of 2012, dated
11.11.2014, Rajkumar Selvanathan vs. Murugan in A.S.Nos.46 and 91
2013, dated 30.09.2021, Amar Nath vs. Gian Chand and another in Civil
Appeal No.5797 of 2009, dated 28.01.2022, to the effect that unless and
until the power agent is intimated about the factum of cancellation of
power of attorney deed, he cannot be found fault with and the actions
based on the power deed holds good and valid in the eye of law.
35. In this regard, it is useful to refer to Section 208 of the
Indian Contract Act, 1872.
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
208. When termination of agent's authority takes effect as
to agent, and as to third persons.-
The termination of the authority of an agent does not,
so far as regards the agent, take effect before it becomes
known to him, or, so far as regards third persons, before it
becomes known to them.
36. Section 208 provides that the termination of the power
agent takes effect only when it becomes known to the agent. Revocation
has taken place on 03.03.1988 vide Ex.B1. But the termination of the
power was not intimated to the agent at all. When there is no intimation
to the agent as to the cancellation of the power, then his actions cannot
be questioned. Therefore, Ex.A3 cannot be held to be an invalid
document.
37. On 17.03.1988, Subburama Iyer executed a ratification
deed in favour of Ganesan in respect of eastern 7 cents (Ex.A4). The
learned counsel for the appellant Mr.V.Meenakshi Sundaram drew the
attention of this Court to the effect that de hors the termination of the
power by Subburama Iyer through Ex.B1, the ratification deed executed
by Subburama Iyer (Ex.A4) does not have significance. In this regard, it
is useful to refer to the provisions of Section 196 of the Indian Contract
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
Act, 1872. Section 196 of the Indian Contract Act, 1872 is extracted
hereunder:
196. Right of person as to acts done for him
without his authority. Where acts are done by one person
on behalf of another, but without his knowledge or authority,
he may elect to ratify or to disown such acts. If he ratifies
them, the same effects will follow as if they had been
performed by his authority.
(Explanation for 196 or Power of Attorney Act)
38. Therefore, as per Section 196 of the Indian Contract Act,
the action of Subburama Iyer by ratifying the action of Chidambaram
(Ex.A3) is perfectly valid in the eye of law. Whereas, the first defendant
Mariappa Nadar claims to have purchased the suit property from
Subburama Iyer on 23.03.1988 and his two sons (Ex.B3) as early as on
09.03.1986 itself. The entire suit property was purchased by Ganesan
through Ex.A1 and Ex.A3 sale deeds. Ex.A3, sale deed was further
strengthened by Ex.A4 – ratification deed executed by the original
owner Subburama Iyer. It is a futile exercise on the part of Mariappa
Nadar to have the sale deed executed by Subburama Iyer in respect of
the suit property through Ex.B3. On the said date, Subburama Iyer did
not have any right or title over the suit property.
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
39. In view of the foregoing discussions, the above said
substantial questions of law are answered in favour of the plaintiff
Ganesan.
40. Based on the aforesaid discussions, the Second Appeal
No.1064 of 2002 stands dismissed. O.S.No.74 of 1999 on the file of
District Munsif cum Judicial Magistrate Court, Karaikudi is dismissed.
Second Appeal No.590 of 2013 is also dismissed and O.S.No.142 of
2004 on the file of Additional District Munsif Court, Karaikudi stands
allowed. Time for delivery of possession two months from today. M.P.
(MD).No.2 of 2013 in S.A.(MD).No.590 of 2013 stands allowed by
marking certified copy of sale deed. There is no order as to costs.
29.11.2023
NCC:Yes/No
Index:Yes/No
Internet:Yes/No
Note: Ex.B21, Certified copy of sale deed, dated 19.10.1921
marked before this Court.
akv
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
To
1.The District Munsif cum Judicial Magistrate,
Karaikudi.
2.The Subordinate Judge,
Devakottai.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
(The Additional document Ex.B21 marked before
this Court shall be send back to the trial Court
along with the documents already received, on duly
indexing the same, after expiry of appeal time.)
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S.A.No1064 of 2002 and S.A.(MD).No.590 of 2013
R.KALAIMATHI,J.
akv
S.A.No1064 of 2002
and
29.11.2023
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