Madheswaran … vs Indhumathi
2023 Latest Caselaw 13507 Mad

                                                                             S.A.Nos.716 and 720 of 2023


                             IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                               DATED: 05.10.2023

                                                     CORAM

                                  THE HONOURABLE Ms. JUSTICE P.T. ASHA

                                            S.A.Nos.716 and 720 of 2023
                                                       and
                                              C.M.P.No.22557 of 2023

                     S.A.No.716 of 2023

                     Madheswaran                                … Appellant/2nd Defendant

                                       Vs

                     1.Indhumathi
                     2.Mathumathi                               ... Respondents / Plaintiffs
                     3.Sundaramoorthy                    .   .. 3rd Respondent / 1st Defendant


                     Prayer: Second Appeal is filed under Section 100 of C.P.C against the
                     Judgement and Decree dated 06.12.2022 made in A.S.No.25 of 2022
                     on the file of the IV Additional District Court, Erode District at
                     Bhavani confirming the judgment and decree dated 30.09.2021 made in
                     O.S.No.67 of 2005 on the file of Sub-Judge, Bhavani.



                     1/20



https://www.mhc.tn.gov.in/judis
                                                                                 S.A.Nos.716 and 720 of 2023


                     S.A.No.720 of 2023

                     Madheswaran                                        … Appellant/Plaintiff

                                             Vs

                     1.Sundaramoorthy
                     2.Indhumathi
                     3.Mathumathi                                    ... Respondents / Defendants


                     Prayer : Second Appeal is filed under Section 100 of C.P.C against the
                     Judgement and Decree dated 06.12.2022 made in A.S.No.17 of 2022
                     on the file of the IV Additional District Court, Erode District at
                     Bhavani confirming the judgment and decree dated 30.09.2021 made in
                     O.S.No.217 of 2013 on the file of Sub-Judge, Bhavani.



                                       For Appellant    : Mt.T.Murugamanickam
                                                          Senior Counsel,
                                                          for M/s.Zeenath Begum


                                                       JUDGMENT

Since the pleadings in both the suits overlap a common judgment

is being pronounced and the facts and the parties are referred to in the

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

same array as in the suit O.S.No.67 of 2005 which is the earlier suit

and the comprehensive suit for partition. The plaintiffs therein are

defendants 2 and 3 in the suit O.S.No.217 of 2013 filed by the second

defendant for specific performance. The first defendant in both the

suits are the same.

2.The suit O.S.No.67 of 2005 was filed by the plaintiffs who

were then minors for partition. The first item of the suit property was

an ancestral property and the second item was purchased from out of

the income from the first item of the suit property. The ancestral

property belonged to the first defendant's father, Nachimuthu.

Nachimuthu had two sons, Chinnusamy and the first defendant who

had constituted a Hindu undivided family. On 20.04.1990, they have

partitioned the joint family properties by metes and bounds and "C"

schedule property in the said partition was allotted to the share of the

first defendant and it is this "C"schedule property that is described as

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

first item in the suit schedule. It is the contention of the plaintiffs that

on their birth, they became entitled to an equal share in the said

property.

3. It is the further case of the plaintiffs that the first defendant had

received a sum of Rs.50,000/- form out of the joint family funds. Out

of this amount and the income from the first item of the suit property,

the first defendant had purchased the second item of the property under

two sale deeds dated 05.07.1993 and 15.02.1996. After his purchase,

he had constructed a terraced house in the second item of the suit

property. Hence, the second item of the property also acquires the

character of an ancestral property.

4.Pending the suit, the first defendant's father Nachimuthu, had

died intestate on 12.11.2010 leaving behind the plaintiffs and the first

defendant as his legal representatives and the properties that had been

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

allotted to the share of Nachimuthu Gounder in the Partition Deed

dated 20.04.1990 devolved on the surviving legal heirs of the said

Nachimuthu. Therefore, in this property also, the plaintiffs had a 2/3 rd

share. It is their further case that the first defendant had declined to

effect a partition. Therefore, the suit for partition.

5.The plaintiffs had impleaded the second defendant as a party

since they had come to learn that the first defendant had entered into an

agreement with the second defendant to alienate the second item of the

suit property which stands in the name of the first defendant.

Therefore, the second defendant was also impleaded as a party to the

suit.

6.The first defendant had filed a written statement stating that the

suit is not maintainable as the mother could not represent the minors

since the father was maintaining the children and he was their natural

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

guardian Further, the first defendant's wife and the mother of the

plaintiffs, Vasuki was still living under the same roof. The first

defendant had denied the allegations that he was living a wayward life

and that he was of immoral character. He would submit that all of this

nothing but a concocted story woven by his relatives. He would submit

that he never driven away the mother of the plaintiffs from the

matrimonial home and that she continued to live with him. He would

admit that the first item of the suit property was an ancestral property,

but denied the fact that the suit second item of the property has been

purchased from out of the joint family funds. It is the contention of the

first defendant that the suit property was purchased from out of the

housing loan availed by the first defendant from the Erode District

Central Cooperative Bank, Ammapettai Branch for the construction of

the residential building and commercial complex. The first defendant

would further contend that he is running a electrical and grocery shop

at Chittar and for the business purposes, he has borrowed a loan of

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

Rs.7,50,000/- at an exorbitant rate of interest from several persons. In

order to discharge the housing loan, he had entered into an agreement

with the second defendant and under the agreement, the second

defendant was to pay a sum of Rs.5,00,000/- as sale consideration, out

of which a sum of Rs.4,00,000/- was already paid as advance. The

first defendant would submit that the second item of the property, being

his property, he is entitled to be dealt with as he wishes. He would

submit that the entire suit was instigated by his sister-in-law, Sumathi,

who is the sister of plaintiffs' mother Vasuki.

7.The second defendant who is the appellant herein had filed a

written statement inter-alia contending that he had entered into an

agreement dated 28.12.2004 with the first defendant, who is the

absolute owner of the second item of the property as the same been

purchased by the second defendant in his name under the Sale Deeds

dated 05.07.1993 and 15.02.1996. The second defendant would

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

contend that the suit for partition is a collusive one. The first defendant

had agreed to sell the property to the second defendant for a total

consideration of Rs.5,00,000/- out of which the second defendant had

already deposited a sum of Rs.4,00,000/- and the first defendant had

agreed to receive the balance consideration after a period of 3 years

since the suit for partition is pending. In fact, the first defendant had

decided to sell the second item of the suit property only to discharge

the loan availed by him from the Erode District Central Cooperative

Bank.

8.The suit O.S.No.217 of 2013 was filed by the second defendant

seeking specific performance of the agreement dated 28.12.2004

executed by the first defendant in his favour and for an alternate relief

of refund of the advance amount with interest.

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

9.The defense of the first defendant to the suit O.S.No.217 of

2013 filed by the plaintiff for specific performance is that he never

entered into a sale agreement with the intention of selling the property.

On the contrary on 28.12.2004, the first defendant had borrowed a sum

of Rs.2,00,000/- from the plaintiff agreeing to repay the same with 12%

interest and as a security, the sale agreement was executed. When this

sale agreement was executed, a dispute arose between the first

defendant and his wife, which resulted in the filing of the suit in

O.S.No.67 of 2005. The first defendant would submit that he has been

paying the interest upto November 2008 to one Chinnaru Gounder. On

the advise of Chinnaru Gounder, the second defendant had agreed to

receive the principal amount and cancel the sale agreement. For this

purpose, the first defendant had executed a Power of Attorney in

favour of Chinnaru Gounder. This Power of Attorney has been

misused and the second defendant and the said Chinnaru Gounder

colluded together and executed a sale agreement on 26.12.2008 in

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

favour of one Gopal. On coming to know about the same, the first

defendant had cancelled the Power of Attorney. The first defendant

would submit that he is willing to repay the said advance amount of

Rs.2,00,000/- with interest. The second item of suit property is worth

Rs.11,07,000/-. Therefore, by no stretch of imagination, would they

have agreed to sell the properties for a pittance for a sum of

Rs.5,00,000/-. Therefore, he sought for dismissal of the suit.

10.The plaintiffs had filed a written statement reiterating the

contents of the plaint contending that the agreement is a collusive one

with the intent to usurp the property.

11.Both the suits were comprehensively tried and separate

judgments and decrees were pronounced by the learned Sub Judge,

Bhavani.

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

12.In suit O.S.No.67 of 2005, the learned Subordinate Judge,

Bhavani had framed the following issues.

1. Whether the item No.2 of the suit properties are the self acquired

property of the first defendant?

2. Whether the plaintiffs 1 and 2 are entitled to the relief of

preliminary decree for partition of their 2/3rd share in the suit

properties I and II as prayed for?

3. Whether the plaintiffs 1 and 2 are entitled to the relief of final

decree as prayed for?

4. To what other relief the plaintiffs are entitled?

Additional Issues:

1. Whether the plaintiffs are entitled to 2/3rd share in item 3 of the

suit property as prayed for?

2. Whether the plaintiffs are entitled to a permanent injunction as

prayed for?

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

13. In O.S.No.67 of 2005, the plaintiffs had examined their

mother Vasuki as P.W1 and one Palaniammal and Veeraiah as P.Ws.2

and 3. Exs.A1 to A11 were marked. On the side of the defendants, the

first defendant had entered the box as D.W1, R.Balakrishnan as D.W2,

Dhavamani as D.W3 and S.Madheswaran as D.W4. They had marked

Exs.P1 to P7.

14.In suit O.S.No.217 of 2013, the learned Subordinate Judge,

Bhavani had framed the following issues:

1/ 28/12/2004?k; njjpapl;l fpua cld;gof;ifapd; go thjpaplk; gpujpthjp U:/1.00.000-? bgw;Wf;bfhz;L jhth brhj;ij fpiuak; bra;J bfhLf;f Vw;wij Mw;Wjy; gupfhuk; gpwg;gpf;fj;jf;fjh>

2/jhth bjhif U:/8.14.000-? 12% tl;o nru;j;J thjpf;F gpujpthjp brYj;Jk;go khw;W gupfhuk;

gpwg;gpf;fj;jf;fjh>

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

3/ 1k; gpujpthjp. Thjpaplk; bgw;w mry; bjhif U:/2.00.000-?I brYj;j jahuhfnt ,Ug;gjhf TwtJ Vw;Wf; bfhs;sj;jf;fjh >

4/ tHf;fhdJ fhytiuaiw rl;lj;jhy;

                                  ghjpf;fg;gl;Ls;sjh >

                                         5/    thjpf;F fpilf;fj;jf;f ,ju ghpfhu';fs;
                                  vd;d >

Subsequently, it has been recast as follows:

1/ thjp nfhupathW Vw;wij Mw;Wjy; gupfhuk; thjpf;F fpilf;fj;jf;fjh > 2/ 28//12/2004 y; thjpf;Fk;. 1k; gpujpthjpf;Fk; ,ilna Vw;gl;l fpiua xg;ge;jk;. 1k; gpujpthjp th';fpa flDf;fhf Vw;gLj;jg;gl;ljh > 3/ thjp nfhupthW khw;Wg; gupfhukhf. fpiua xg;ge;jj;jpy; Fwpg;gplg;gl;Ls;s Kd; bjhifia tl;oa[ld;

gpujpthjpfs; brYj;j jPu;g;ghiz gpwg;gpf;fj;jf;fjh>

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

4/ thjp nfhupathW nkw;go Kd; bjhifia jpUk;g brYj;Jk; tiu. jhth brhj;ijg; bghUj;J bghWg;gW [ jpg; ghj;jpak; Vw;gLj;j jPh;g;ghiz gpwg;gpf;fj;jf;fjh> 5/ thjp nfhupathW epue;ju cWj;Jf;fl;lis gupfhuk; thjpf;F fpilf;fj;jf;fjh> 6/ thjpf;F fpilf;ff;Toa ,ju gupfhu';fs;

ahit >

15. The plaintiff had examined himself as P.W1 and one

Chinnaru Gounder as P.W2 and marked Exs.A1 to A8. The first

defendant had examined himself as D.W.1. One Balakrishnan and

Subramaniam were examined as D.W2 and D.W3 respectively and the

second defendant, Indumathi (since they had attained majority) had

entered the box as D.W4. Exs.P1 to P5 were marked.

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

16. The learned Subordinate Judge, Bhavani had partly decreed

the suit O.S.No.67 of 2005. The learned Judge declared that the first

and third items of the suit property were joint family property and the

plaintiffs were entitled to a 2/3rd share. As regards the second item of

the suit property, the suit was dismissed stating that the plaintiffs did

not have any right over the second item of the suit property as it was

the absolute property of the first defendant.

17.The suit O.S.No.217 of 2013 was dismissed only with

reference to the grant of relief of specific performance and decreed for

alternate relief of refund of the advance amount with interest. The first

defendant was directed to repay the sum of Rs.8,14,000/- together with

interest on Rs.4,00,000/- from the date of the plaint till the date of the

realization.

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

18. Challenging the said judgment and decree in O.S.No.67 of

2005 in as much as it related to the second item of the suit schedule

property, the plaintiffs had filed A.S.No.25 of 2022 on the file of IV

Additional District Judge, Erode District at Bhavani. As regards as the

judgment and decree in O.S.No.217 of 2013, the plaintiff had filed

A.S.No.17 of 2022 challenging the decree only for the alternate prayer.

19.Both the appeals were considered by the IV Additional

District Judge, Erode at Bhavani and the appeals came to be dismissed,

against which, the above second appeals are filed

20.S.ANo.716 of 2023 emanates from the judgment and decree in

O.S.No.67 of 2005 and S.A.No.720 of 2023 is against the judgment

and decree in O.S.No.217 of 2013. The plaintiffs have not challenged

the judgment and decree in A.S.No.25 of 2002 and it is the second

defendant who has challenged the said decree.

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

21.The judgment and decree in A.S.No.25 of 2002 is sought to be

challenged by the second defendant on the ground that the suit

O.S.No.67 of 2005 is a vexatiously instituted litigation. This Court is at

a loss to understand as to why the judgement and decree is challenged

particularly when both the Courts below have concurrently held that

the second item of the suit property is the absolute property of the first

defendant with whom the second defendant had entered into an

agreement of sale. Considering the fact that the second defendant is

not an aggrieved party more, particularly when he has not challenged

the judgment and decree in O.S.No.67 of 2022, S.A.No.716 of 2023 is

dismissed.

22. As regards as S.A.No.720 of 2023 both the Courts below

have concurrently held that the property in question is valued at a sum

of Rs.11,07,000/- even in the year 2003, as evidenced by the Ex.P1-

Valuation report and by no stretch of imagination would the plaintiffs

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

have entered into an agreement for a sum of Rs.5,00,000/-. Therefore,

the Courts below have held that the defense of the first defendant that

the agreement has been executed only for a security has to necessarily

be believed. As regards the contention of the first defendant that only a

sum of Rs.2,00,000/- was received, the same was disbelieved by the

Court since P.W2 had deposed that the first defendant had received a

sum of Rs.4,00,000/- from the second defendant, which amount he has

immediately paid to the Erode Central Cooperative Bank, Ammapettai

Branch to discharge his loan. P.W2 is none else than the Power holder

of the first defendant. Therefore, the Courts below have proceeded to

believe his evidence since there is no contra evidence on the side of the

first defendant. Further, Ex.A3-Sale Agreement would indicate that a

sum of Rs.4,00,000/- had been paid as advance. Since the Courts have

come to the conclusion that the transaction is one of a loan, they have

granted the alternate relief of recovery of money. I see no reason to

disagree with the concurrent findings of the Courts below. Further, no

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

substantial question of law has been made out by the appellant / second

defendant. Accordingly, both the second appeals are dismissed. No

costs. Consequently, connected miscellaneous petitions are closed.

05.10.2023

Index: Yes/No Speaking order/non-speaking order srn

https://www.mhc.tn.gov.in/judis S.A.Nos.716 and 720 of 2023

P.T.ASHA, J.,

srn

To

1. The IV Additional District Judge, Erode District at Bhavani.

2. The Sub-Judge, Bhavani.

3. The Section Officer, V.R.Section, High Court, Madras.

S.A.Nos.716 and 720 of 2023 and C.M.P.No.22557 of 2023

05.10.2023

https://www.mhc.tn.gov.in/judis