Madras High Court
V.Chandragantha vs R.Kanagaraj on 3 October, 2023
S.A.No.25 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.25 of 2017
V.Chandragantha ... Appellant
vs.
1.R.Kanagaraj
2.R.Vasanthi
3.R.Rangasamy ... Respondents
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Judgment and decree dated 25.02.2016 made in
A.S.No.82 of 2014 on the file of III Additional District and Sessions Judge
at Coimbatore reversing the Judgment and decree dated 26.06.2014 made in
O.S.No.575 of 2012 on the file of III Additional Subordinate Judge at
Coimbatore.
For Appellant : Mr.S.Mukunth
Senior Counsel
for M/s.Sarvabhauman Associates
For R1 and R2 : Mr.N.Manokaran
For R3 : No Appearance
1/14
S.A.No.25 of 2017
JUDGEMENT
The 2nd defendant in the suit is the appellant. The respondents 1 and 2
filed a suit seeking declaration that the Sale Deed dated 06.07.2001
executed by the 3rd respondent/1st defendant is null and void and also
permanent injunction restraining the defendants from interfering with
peaceful possession and enjoyment of the suit property. The respondents 1
and 2/plaintiffs also sought for partition of 2/3rd share in the suit property.
The respondents 1 and 2 also sought for permanent injunction restraining
the 2nd defendant from alienating or encumbering the suit property.
2. The Trial Court dismissed the suit. Aggrieved by the same, the
respondents 1 and 2 filed an appeal in A.S.No.82 of 2014 before the III
Additional District and Sessions Judge, Coimbatore. The First Appellate
Court reversed the findings of the Trial Court and allowed the appeal and
granted decree for partition, declaration and injunction against the
alienation as prayed for. The prayer in respect of the absolute injunction
was dismissed. Aggrieved by the judgement and decree passed by the First
Appellate Court, the 2nd defendant in the suit has come up by way of this
S.A.No.25 of 2017
second appeal.
3. According to the respondents 1 and 2/plaintiffs, the suit property is
ancestral property and hence, they are entitled to 2/3 share in the suit
property. Originally the suit property was allotted to the share of their father
R.Rangasamy namely the 3rd respondent. Originally there was a partition in
the family between the father of the respondents 1 and 2 namely
R.Rangasamy, his brother Duraisamy and grandfather Ramanna Gounder on
14.03.1991 and the suit property was allotted to the share of 3 rd respondent
under C-Schedule to the said partition document. It is the case of the
respondents 1 and 2 that they have been in possession and enjoyment of the
suit property along with 3rd respondent without any hindrance from third
parties. On 16.07.2012, the respondents 1 and 2 came to know of the Sale
Deed executed by the 3rd respondent in favour of the appellant and
therefore, they were constrained to file the suit seeking above said relief.
4. The 3rd respondent remained exparte. The appellant/2nd defendant
filed a written statement and admitted that the suit property was allotted to
the share of 3rd respondent-R.Rangasamy in the family partition dated
S.A.No.25 of 2017
14.03.1991. It was averred by the appellant that the suit property was
purchased on 06.07.2001 from 3rd respondent and she has been in
possession and enjoyment of the suit property from that date onwards. It
was specifically pleaded by the appellant that the respondents 1 and 2 had
knowledge about the sale by the 3rd respondent and therefore, they were not
entitled to maintain the suit. It was also pleaded that the suit property was
separate property of the 3rd respondent and his father-Ramanna Gounder.
The appellant further stated in her written statement that the
plaintiffs/respondents 1 and 2 failed to challenge the sale within three years
from the date of attaining majority. Therefore, the suit was barred by
limitation.
5. Before the Trial Court, the 1st respondent was examined as PW.1
and 6 documents were marked on the side of the respondents 1 and
2/plaintiffs as Ex.A1 to A6. The appellant was examined as DW.1 and on
her behalf, 4 documents were marked as Exs. B1 to B4.
6. On consideration of oral and documentary evidence available on
S.A.No.25 of 2017
record, the Trial Court came to the conclusion that the suit property was
alienated by the 3rd respondent/1st defendant in favour of the appellant for
family necessity and therefore, the plaintiffs are not entitled to maintain the
suit. Aggrieved by the same, the respondents 1 and 2 filed an appeal in
A.S.No.82 of 2014 on the file of the III Additional District and Sessions
Judge, Coimbatore. The First Appellate Court reversed the findings of the
Trial Court on the ground that the appellant failed to lead any evidence to
establish that sale was for the benefit of the family by leading any evidence.
Having come to the conclusion that the suit property was ancestral property,
the First Appellate Court partly decreed the suit as mentioned above.
Aggrieved by the same, the appellant is before this Court.
7. At the time of admission, this Court formulated the following
substantial questions of law:-
“1. Is the Appellate Court right in reversing the decree
and grant partition when it is clear from the recitals of sale
deed, dated 06.07.2001 (Ex.A.2 and A.4) that the third
respondent had sold the property to the Appellate for the legal
benefit of the family?
S.A.No.25 of 2017
2. Is the Appellate Court justified in entertaining the suit
on payment of Court Fee under Sec. 37(2) of the Tamil Nadu
Court Fees and Suit Valuation Act, when it is established by
Revenue Records Ex.B.1 to B4, Appellant alone is in
possession of the suit property pursuant to the sale deed, dated
06.07.2001 and the respondents 1 and 2 are not in possession?
3. Is the Appellate Court justified in reserving the
Judgment and Decree overlooking the fact that the suit is not
filed within three years from the date of respondents 1 and 2
attaining majority in view of Article 60 of the Limitation Act?”
8. Mr.S.Mukunth, learned Senior Counsel appearing for the appellant
submitted that in Ex.A2-Sale Deed in favour of the appellant, there is a clear
recital that the sale was made by the 3rd respondent for the family necessity
and hence, the sale in favour of the appellant is binding on the respondents
1 and 2/plaintiffs, who are minor children of appellant's vendor at that point
of time. The learned Senior Counsel further submitted that the 3rd
respondent sold the property even in the year 2001 and from that date
onwards, the appellant has been in possession and enjoyment of the suit
property and consequently, the valuation of the suit under Section 37 (2) of
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the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is not correct.
The learned Senior Counsel further submitted that the suit has not been filed
by the respondents 1 and 2 within three years from the date of attaining
majority and consequently, the suit is barred under Article 60 of the
Limitation Act, 1963.
9. Mr.N.Manoharan, learned counsel appearing for the respondents 1
and 2 submitted that mere recital in the sale deed is not sufficient and the
appellant failed to plead in the written statement about the family necessity.
When there is no plea that sale deed in favour of the appellant was for
family necessity, the appellant cannot take advantage of any recital in the
document. The learned counsel further submitted that apart from the recital
in the document, there must be evidence in support of the contention that
the same was for family necessity. In this regard, the learned counsel relied
on the judgement of this Court in Javeed Basha and others vs. Rukkamma
and others reported in 2015 SCC Online Mad. 1261. The learned counsel
further submitted that the respondents 1 and 2 in their plaint specifically
pleaded that they were in the joint possession of the suit property along with
other co-owner namely the 3rd respondent. However, the appellant failed to
S.A.No.25 of 2017
plead any exclusive possession. In such circumstances, the valuation of the
suit under Section 37 (2) of the Tamil Nadu Court Fees and Suits Valuation
Act, 1955 is correct. The learned counsel further by drawing the attention of
this Court to Article 109 of the Limitation Act, 1963, submitted that if a
Member or Coparcener wants to set aside his father's alienation of ancestral
property, the limitation is twelve years and not three years as contended by
the appellant.
Question of Law No.1:-
10. It was vehemently contended by the learned Senior Counsel
appearing for the appellant that in view of recital in Exs.A2 and A4, Sale
Deeds in favour of the appellant that the sale was made for family necessity,
the same is binding on the minor children namely the respondents 1 and 2.
As rightly contended by the learned counsel appearing for the respondents 1
and 2, a perusal of the written statement filed by the appellant would
suggest that the appellant failed to plead that the sale in her favour was for
family necessity. In the absence of any specific plea regarding family
necessity, the appellant is not entitled to lead any evidence. It is settled law
S.A.No.25 of 2017
that there cannot be any evidence without a plea, therefore, the appellant is
not entitled to take advantage of the recital found in Exs.A2 and A4, when
there is no foundation in the pleadings. Further, in Javeed Basha and
others vs. Rukkamma and others reported in 2015 SCC Online Mad. 1261,
this Court while considering the plea of legal necessity observed as
follows:-
“17. .... .... .... .... In the present case, it was not proved
by the plaintiffs that the sale was made by the deceased
Shivaram for a legal necessity or the sale amount was utilised
by him for the upliftment of the joint family. In fact, in the
decision rendered in (R. Sridharan v. Ammaniammal) 2006 (2)
CTC 377 it was held that the alienee has to prove that the sale
consideration has been utilised for a worthy cause and for the
benefit and upliftment of the joint family. In the absence of
such evidence, the sale made by the Kartha cannot be said to
be for a legal necessity. Mere retention of the amount in the
hands of the alienee for the purchase of the lands would not
suffice and there must be actual proof of purchase of other
lands. When such evidence is missing in this case, the Courts
below are justified in coming to the conclusion that the sale
made by the deceased Shivaram does not bind the defendants
in any manner. .... .... .... ....”
S.A.No.25 of 2017
11. In the case on hand, there is no evidence on the side of the
appellant to show that consideration paid to the 3rd respondent was utilised
for family necessity. Therefore, in the absence of any plea or evidence
supporting the contention of the learned Senior Counsel for the appellant
that property was sold in favour of the appellant for family necessity and the
consideration was utilised for family benefit, I am unable to accept his
contention. Accordingly, the question of law No.1 is answered against the
appellant.
Question of Law No.2:
12. The respondents 1 and 2 in their pleadings specifically raised a
plea that the suit property was allotted to the share of the 3 rd respondent in
the family partition dated 14.03.1991 and the respondents 1 and 2 being his
children, have been in possession and enjoyment of the suit property along
with 3rd respondent. Though the respondents 1 and 2 pleaded joint
possession in their plaint, the same has not been specifically denied by the
appellant in her written statement. The appellant in her written statement
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vaguely pleaded that the plaintiff should pay court fee under Section 37 (1)
of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. However,
there is no plea that the appellant had been in possession of the suit property
to the exclusion of the respondents 1 and 2. In such circumstances, the
valuation adopted by the respondents 1 and 2 under Section 37 (2) of the
Tamil Nadu Court Fees and Suits Valuation Act, 1955, is correct.
Accordingly, the question of law No.2 is also answered against the
appellant.
Question of Law No.3:-
13. It is admitted case that in Exs.A2 and A4-Sale Deeds in favour of
the appellant, the respondents 1 and 2 were not made Eo nomine parties.
Only in cases, where minor's property is sold by guardian by making minors
as Eo nomine parties, there is a necessity to challenge the document and in
such cases, Article 60 of Limitation Act, 1963, will be applicable. In the
case on hand, the 3rd respondent in the sale deed executed in favour of the
appellant failed to include the respondents 1 and 2 as eo nomine parties.
Further, in the case on hand alienation of ancestral property is by father. In
S.A.No.25 of 2017
such circumstances, the correct provision of law applicable is Article 109 of
the Limitation Act, 1963. Article 109 of the Limitation Act, 1963, reads as
follows:-
Description of suit Period of Time from which
limitation period begins to run
PART IX-Suits relating to miscellaneous matters
109. By a Hindu governed by Twelve years When the alienee takes
Mitakshara law to set possession of the property
aside his father's
alienation of ancestral
property.
14. A perusal of the above Article would suggest that the limitation to
set aside the father's alienation of ancestral property is twelve years from the
date on which the alienee had taken of the possession of the property. In the
case on hand, the properties were sold to appellant on 06.07.2001. The suit
has been presented on 19.07.2012 well within twelve years from the date of
sale and handing over of possession. In such circumstances, the suit is very
much well within the limitation period of twelve years under Article 109 of
the Limitation Act, 1963. Accordingly, the question of law No.3 is also
answered against the appellant and in favour of the respondents 1 and 2.
15. In view of the conclusion reached by this Court in the above said
substantial questions of law raised by this Court at the time of admission,
S.A.No.25 of 2017
the second appeal stands dismissed.
In Nutshell:-
(i) The second appeal is dismissed.
(ii) In the facts and circumstances of the case, there shall be no order
as to costs.
03.10.2023
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
To
1.The III Additional District and Sessions Court,
Coimbatore.
2.The III Additional Subordinate Court,
Coimbatore.
S.A.No.25 of 2017
S.SOUNTHAR, J.
dm
S.A.No.25 of 2017
03.10.2023
