Madras High Court
Perumal vs Ponnusamy on 11 September, 2023
C.R.P.(MD)No.46 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 11.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.46 of 2019
and
C.R.P.(MD)No.235 of 2019
1.Perumal
2.Malarkodi
3.Sivasamy ... Petitioners / Petitioners/Plaintiffs
Vs.
1.Ponnusamy
2.Pappayee
3.Kaliammal @Chinnappillai
4.Soliappan
5.Subramani
6.Rasappa Gounder
7.Pappayee
8.Shanthi
9.Selvi
10.Sakthivel
11.Vasanthi ... Respondents / Respondents/Defendants
1/12
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C.R.P.(MD)No.46 of 2019
Prayer: This Civil Revision Petition is filed under Article 227 of the
Constitution of India, against the fair and decretal order, dated
03.11.2018, passed in I.A.No.708 of 2018 in O.S.No.25 of 2012 on the
file of the Principal Subordinate Judge, Karur.
For Petitioners : Mr.M.P.Senthil
For Respondents : Mr.V.Balaji
ORDER
The instant Civil Revision Petition has been filed against the
order, dated 03.11.2018, passed in I.A.No.708 of 2018 in O.S.No.25 of
2012 on the file of the Principal Subordinate Judge, Karur.
2. The revision petitioners herein are the petitioners /plaintiffs
and the respondents herein is the respondents / defendants before the
Court below.
3. For the sake of convenience, the parties are referred to
according to their litigative status before the Court below.
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C.R.P.(MD)No.46 of 2019
4. It appears that the plaintiffs have filed a suit for the relief
of partition. The said suit was resisted by the defendants and while
being so, they have contended that the first defendant executed a gift
deed in favour of the 8th defendant. According to the plaintiffs, there
was no such gift settlement and that alleged gift settlement will not bind
the plaintiffs. Therefore, he moved an application for amendment to
declare the alleged gift settlement, dated 22.09.2011 is null and void.
The said application was resisted by the defendants on the ground of
limitation.
5. The Court below after hearing either side has ultimately
dismissed the amendment application.
6. Aggrieved with the said order, the plaintiffs have
approached this Court by way of this Civil Revision Petition.
7. The learned counsel for the plaintiffs would submit that the
very amendment sought for in the plaint will not change the nature of
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C.R.P.(MD)No.46 of 2019
the suit, therefore would submit that, the very finding of the Court
below that the amendment sought for is hit by the limitation is
erroneous.
8.Per contra, the learned counsel for the defendants would
submit that according to Article 58 of the Limitation Act, the
application to set aside the sale deed should have been filed within a
period of three years from the date when the right to sue first accrues.
The learned counsel for the defendants would submit that they have
stated about the gift settlement in their written statement, as early as on
28.06.2012, and it is also the submission of the learned counsel for the
defendants that based upon the said contention, the plaintiffs
themselves impleaded, the 8th defendant / Shanthi by filing an
application in I.A.No.723 of 2013, vide order, dated 25.09.2014.
Inspite of that the application, the amendment application came to be
filed only during 2018, after the period of 3 years from the first date
when the plaintiffs have knowledge about the document. Therefore,
would submit that the amendment application is liable to be dismissed
and prayed to confirm the order of the Court below.
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C.R.P.(MD)No.46 of 2019
9. I have given my anxious consideration to the either side
submissions.
10. At this juncture, the learned counsel for the plaintiffs
would rely upon the judgment of the Hon'ble Supreme Court reported in
AIR-1957-SC-357 (L.C.Leach & Co.Ltd V. Jardine Skinner & Co.)
and AIR-1957-SC-363 (Pirgonda Hongonda Patil V. Kalgonda
Shidgonda Patil), 2009-5-LW-510 (Hariprasad V. Uma Keshav) and
2002-7-SCC-559 (Sampath Kumar V. Ayyakannu) and would contend
that in all those above cases, even after the period of limitation, the
Hon'ble Supreme Court has permitted the amendment. This Court has
carefully gone through those judgments. The facts of the above referred
cases is not applicable to the facts in hand. Because in all those
reported judgment the structure or character of the suit is not altered
what they wanted is only the nature of relief.
11. In this regard, it is appropriate to refer the judgment
referred in 2001-6-SCC-163 (Vishwambhar and Ors. V. Laxminarayan
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C.R.P.(MD)No.46 of 2019
(Dead) through L.Rs. and Anr.). The relevant portion of the judgment
is as follows-
“23. On a fair reading of the plaint, it is clear
that the main fulcrum on which the case of the plaintiffs
was balanced was that the alienations made by their
mother-guardian Laxmibai were void and therefore, liable
to be ignored since they were not supported by legal
necessity and without permission of the competent court.
On that basis the claim was made that the alienations did
not affect the interest of the plaintiffs in the suit property.
The prayers in the plaint were inter alia to set aside the
sale deeds dated 14.11.1967 and 24.10.1974, recover
possession of the properties sold from the respective
purchasers, partition of the properties carving out
separate possession of the share from the suit properties
of the plaintiffs and deliver the same to them. As noted
earlier, the trial court as well as the first appellate court
accepted the case of the plaintiffs that the alienations in
dispute were not supported by legal necessity. They also
held that no prior permission of the court was taken for
the said alienations. The question is in such circumstances
are the alienations void or voidable? In Section 8(2) of
the Hindu Minority and Guradianship Act, 1956, it is laid
down, inter alia, that the natural guardian shall not,
without previous permission of the Court, transfer by sale
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C.R.P.(MD)No.46 of 2019
any part of the immovable property of the minor. In sub-
section (3) of the said section it is specifically provided
that any disposal of immovable property by a natural
guardian, in contravention of sub-section (2) is voidable
at the instance of the minor or any person claiming under
him. There is, therefore, little scope for doubt that the
alienations made by Laxmibai which are under challenge
in the suit were voidable at the instance of the plaintiffs
and the plaintiffs were required to get the alienations set
aside if they wanted to avoid the transfers and regain the
properties from the purchasers. As noted earlier in the
plaint as it stood before the amendment the prayer for
setting aside the sale deeds was not there, such a prayer
appears to have been introduced by amendment during
hearing of the suit and the trial court considered the
amended prayer and decided the suit on that basis. If in
law the plaintiffs were required to have the sale deeds set
aside before making any claim in respect of the properties
sold then a suit without such a prayer was of no avail to
the plaintiffs. In all probability realising this difficulty the
plaintiffs filed the application for amendment of the plaint
seeking to introduce the prayer for setting aside the sale
deeds. Unfortunately, the realisation came too late.
Concededly, plaintiff no.2 Digamber attained majority on
5th August, 1975 and Vishwambhar, plaintiff no.1 attained
majority on 20th July, 1978. Though the suit was filed on
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30th November, 1980 the prayer seeking setting aside of
the sale deeds was made in December, 1985. Article 60 of
the Limitation Act, prescribes a period of three years for
setting aside a transfer of property made by the guardian
of a ward, by the ward who has attained majority and the
period is to be computed from the date when the ward
attains majority. Since the limitation started running from
the dates when the plaintiffs attained majority the
prescribed period had elapsed by the date of presentation
of the plaint so far as Digamber is concerned. Therefore,
the trial Court rightly dismissed the suit filed by
Digamber. The judgment of the trial court dismissing the
suit was not challenged by him. Even assuming that as the
suit filed by one of the plaintiffs was within time the entire
suit could not be dismissed on the ground of limitation, in
the absence of challenge against the dismissal of the suit
filed by Digambar the first appellate court could not have
interfered with that part of the decision of the trial court.
Regarding the suit filed by Vishwambhar it was filed
within the prescribed period of limitation but without the
prayer for setting aside the sale deeds. Since the claim for
recovery of possession of the properties alienated could
not have been made without setting aside the sale deeds
the suit as initially filed was not maintainable. By the date
the defect was rectified (December, 1985) by introducing
such a prayer by amendment of the plaint the prescribed
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C.R.P.(MD)No.46 of 2019
period of limitation for seeking such a relief had elapsed.
In the circumstances the amendment of the plaint could
not come to the rescue of the plaintiff.
From the averments of the plaint it cannot be
said that all the necessary averments for setting aside the
sale deeds executed by Laxmibai were contained in the
plaint and adding specific prayer for setting aside the sale
deeds was a mere formality. As noted earlier, the basis of
the suit as it stood before the amendment of the plaint
was that the sale transactions made by Laxmibai as
guardian of the minors were ab initio void and, therefore,
liable to be ignored. By introducing the prayer for setting
aside the sale deeds the basis of the suit was changed to
one seeking setting aside the alienations of the property
by the guardian. In such circumstance the suit for setting
aside the transfers could be taken to have been filed on
the date the amendment of the plaint was allowed”
(Emphasis supplied by this Court)
As per the above judgment, the Hon'ble Supreme Court after discussing
various aspect has repelled, the prayer for amendment.
12. At this juncture, it is appropriate to refer Article 58 of the
Limitation Act. It mandates three years to file suit, from the date when
the right to sue first accrues, to obtain any other declaration.
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C.R.P.(MD)No.46 of 2019
13. Here, the plaintiffs came to know about the settlement
deed, during 2013, while the first defendant filed the written statement.
Thereafter, the plaintiffs filed an impleading application to implead the
eighth defendant in I.A.No.723 of 2013 vide order dated 25.09.2014.
Subsequently, the pleading was also amended in I.A.No.738 of 2014,
dated 17.02.2015. But, unfortunately, the amendment application came
to be filed during July-2018, after a period of three years from the date
when the plaintiffs first knew about the existence of the settlement
deed.
14. In view of the above settled legal principles, this Court is
of the firm view that the finding of the Court below, dismissing the
amendment application is liable to be confirmed.
15. In the result, the instant Civil Revision Petition stands
dismissed. However, the dismissal of the instant Civil Revision Petition
will not be a bar to the revision petitioners herein, to take any other
defence or any other plea according to law. In that event the Court
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C.R.P.(MD)No.46 of 2019
below may decide the same, according to it's merits. There shall be no
order as to cost. Consequently, connected Miscellaneous Petition is
closed.
11.09.2023
NCC : Yes/No
Index :Yes/No
Ls
To
1.The Principal Subordinate Judge,
Karur.
2.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P.(MD)No.46 of 2019
C.KUMARAPPAN.,J.
Ls
Order made in
C.R.P(MD)No.46 of 2019
11.09.2023
https://www.mhc.tn.gov.in/judis
