Madras High Court
Mrs.C.Uma Rani vs Mr. G.Bakthavatsalam on 30 October, 2024
AS.105/2023
THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON 22.03.2024
PRONOUNCED ON 30.10.2024
CORAM
THE HONOURABLE MR. JUSTICE RMT.TEEKAA RAMAN
A.S.No.105 of 2023
Mrs.Ramani Bai (died)
1.Mrs.C.Uma Rani
D/o.Late Ramani Bai .. Appellant
1. Mr. G.Bakthavatsalam
2. Mrs.S.Usha Rani
3. Mr.C.Ramesh Babu
4. Mzr.C.Suresh Babu
(R2 to R4 are daughter and
sons of deceased Ramani Bai ... Respondents
JUDGMENT
Pursuant to the judicial order passed in A.S.No.105 of 2023 and
administrative order passed by My Lordship the Honourable the Chief
Justice, the Appeal Suit and connected Second Appeals are posted before
this Court. The arguments are heard, orders are reserved.
2. For the sake of convenience, the parties are referred to as per the
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litigative status before the trial court.
3. The brief facts leading to filing of the first appeal are as under;
a] One G. Ramanibai [original plaintiff] filed O.S.No.257 of 2018
before the City Civil Court, IV Addl. Judge, Chennai, seeking a declaration
that Release Deed executed by the plaintiff in favour of the defendant on
27.05.201 at Sub Registrar Office, Velacherry as null and void and
consequential relief of permanent injunction. The sole defendant
G.Bakthavatsalam is none other than her own brother.
b] The suit summons were served upon the sole defendant and he
entered appearance. Subsequently, he filed I.A.No.8014 of 2018 under
Order VII, Rule 11 (c) and (d) of CPC to reject the plaint. The plaintiff in
the suit/respondent in I.A. Filed her counter.
c] After enquiry, by an order dated 21.03.2019, the learned IV Addl.
City Civil Judge, Chennai allowed the application and consequently
dismissed the suit O.S.No.257 of 2018 and hence the appeal.
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4. For the sake of brevity, there are four more suit surrounding the
very same property.
5. It is not in dispute that the paternal grant father of the plaintiff as
well as the defendant Lakshmana Naidu is the owner of the property. After
the death of the grand father, there was a partition between his two sons
namely Ganesa Naidu and Varadarajulu Naidu on 24.12.1945. Ganesa
Naidu died on 07.08.1995 leaving behind his two sons and one daughter
namely the plaintiff herein. The plaintiff along with the two brothers as
clause one heirs, consequently entitled to one share in 1/3 share of Ganesa
Naidu. Legal heir certificate is filed along with the plaint.
6. The plaint further proceeds that the property was given on lease to
one Govindthasamy Naicker, however, he has not vacated the property,
hence there is some Civil Suit between the landlord and tenant.
7. Initially, the original plaintiff Ramani Bai filed a partition suit in
C.S.No.310 of 2019 before the High Court Original Side for her share from
the suit property.
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8. The plaintiff further averred in the suit that defendant/brother
approached the plaintiff sister to withdraw the suit, since the tenant Ganesan
Naicker was not vacating the suit property and the defendant promised the
plaintiff sister and her that since her second son is mentally retarded, he will
deposit a sum of Rs.20 lakhs in the bank account of the plaintiff, so that he
could manage the family expenses and also look after the mentally retarded
child. Though the property value as on that date was 50 lakhs, since
defendant brother promised to deposit 20 lakhs in her bank account initially
to manage the family expenses from the interest earned from the deposit
amount and on further promise he could deposit the remaining amount of
30 lakhs once the suit for evicting the property is decided. At para 10 of the
plaint, she stated as follows;
'Being an innocent woman she was not knowing the
fradulent intentions of the Defendant, she completely believed
and trusted the Defendant in good faith that he will deposit
Rs.20,00,000/- (Twenty Lakhs only) in her bank account as
promised by the Defendant and executed release deed vide
Doc.No.2692 of 2010 dated 27.05.2010 at SRO at Velacherry.
....But the defendant as pre-planned in his mind
deceived the plaintiff and he never ever deposited the said
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amount of Rs.20,00,000/- (Twenty lakhs only) in her bank
account against his own promise. Now the plaintiff is
struggling to manage her daily family expenses as well as
expenses to maintain her mentally retarded son who is living
along with her. The plaintiff further states that the defendant
did not even deposited a single rupee in her bank account
until now.'
9.At paragraph 12 of the plaint, she specifically stated that he
executed a Release Deed in favour of the defendant taking into
consideration the payment of 50 lakhs and deposit amount so as to manage
her mentally retarded son. However, her brother, as promised, has not
honoured his commitment, deceived her and never deposited the amount in
her bank account. Hence the suit.
10. In the application I.A.No.8014 of 2018, at the instance of sole
defendant brother, filed under Order VII Rule 11 (c) and (d) and CPC to
reject the plaint, he would state that the plaintiff released her share in his
favour and she has not prosecuted the partition suit in C.S.No.310 of 2009
and the same was dismissed for non prosecution on 22.10.2010 and further
stated that there is another suit pending before the City Civil Court and in
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respect of the sale agreement entered by the plaintiff and also he filed a suit
to set aside the sale deed were initially pending. It is further stated by the
defendant in the interlocutary application to reject the plaint that he filed a
suit for declaring the alleged sale agreement dated 14.07.1997 between the
plaintiff sister Ramani Bai with alleged purchaser Vijayalakshmi as null and
void, never acted upon and the said Vijayalakshmi also filed a suit for
specific performance of the agreement entered between Vijayalakshmi and
sister Ramani Bai was decreed, hence two appeals have been filed before
the City Civil Court in A.S.No.10 of 2015 and A.S.No.11 of 2015 and both
the appeals are tried together since the subject matter of the suit sale
agreement dated 14.07.1997 is one and the same, wherein, the appeal filed
by the brother was allowed and the specific suit filed by the proposed
purchaser Vijayalakshmi was dismissed. Consequently two second appeals
S.A.Nos.689 and 690 of 2017 were pending before this court.
11.As stated supra, by administrative order, the second appeals
S.A.Nos.689 and 690 of 2017 were posted along with this appeal since
decision rendered in this appeal shall have a bearing upon the second
appeals, the same are disposed off by separate judgment, however on same
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date since, evidence are recorded separately.
12. The present petition is filed only on the premise that there is a
delay of 8 years in seeking declaration relief to set aside the release deed by
the plaintiff's sister in favour of the defendant brother on the ground that
court fee paid is lesser and point of limitation. The plaintiff filed counter in
I.A.No.8014 of 2014. The sum and substance of the said counter are that
the defendant never paid consideration of 20 lakhs for release deed and the
defendant never made fixed deposit in the bank as per the recitals of the
release deed. Documents of statements of accounts were filed as plaint
documents. It is the plaintiff's specific case that since the defendant/her
brother promised to pay a sum of Rs.20 lakhs for maintenance of herself and
her mentally retarded child, in good spirit and good faith, plaintiff dropped
the prosecution in CS.310/2009.
13. According to the plaintiff, she properly valued the suit under
section 40 of the Tamilnadu Court fee and Valuation Act and paid the court
fee of Rs.60,000/-.
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14.Heard Mr. V. Raghavachari, for Mr.T.Easwara Dhas learned senior
counsel appearing for the appellant and Mr.Venkataseshan, learned Senior
Counsel for Mr.V.V.Sathya appearing for the 1st respondent. There is no
representation for the respondents 2 to 4.
15. After perusing the order passed by the learned Judge in allowing
the I.A.No.8014 of 2018, whereby he allowed the rejection of the plaint and
consequently dismissed the suit.
16. In the Release Deed executed by plaintiff, it is recited as follows;
' ehd; jgrpy; fz;l vdJ 1-9 ghf
brhj;ij cdf;F tpLjiy bra;J bfhLg;gjw;F
Mjuthf ehDk;. Kdepiy ghjpf;fg;gl;l vdJ
kfdpd; vjph;fhy eyd; fUjp. EP vd;dplk;
jgrpy; brhj;jpw;fhf U:/20.00.000-? (vGj;jhy;
U:gha; ,UgJ yl;rk; kl;Lk;)?I bgw;Wf;bfhz;L
vdJ g';if tpl;Lf; bfhLf;Fk;go nfl;Lf;
bfhz;ljw;fpz';f ehDk; ,dp nkYk;
nkw;go brhj;ij vd;dhy; guhkhpf;f
Koahj epiyapy; ,Ug;gjhYk;. rk;kjpj;J
nkw;fz;l bjhifia bgw;Wf; bfhz;l jgrpy;
fz;l brhj;jpy; 1-9 cs;s vdJ ghfj;ij
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,d;W tpLjiy bra;J bfhLj;Jtpl;nld;/
nkw;fz;l U:/20.00.000-? (vGj;jhy; U:gha;
,UgJ yl;rk; kl;Lk;)?I t';fpapy; itg;g[j;
bjhifahf KjyPL bra;J. MjpypUe;J tUk;
tl;oia itj;J ehDk;. Kdepiy ghjpf;fg;gl;l
vdJ kfDk; v';fs; $Ptdj;ij elj;jpf;
bfhs;fpnwhk;/ ,dp jgrpy; fz;l brhj;jpy;
vdf;Fhpa 1-9 ghfj;jpw;Fk. vdf;nfh. my;yJ
vdJ thhpRf;nfh vt;tpj rk;ge;jKk; fpilahJ '
17. Admittedly, the recital is clear. As per the recital, a deposit of 20
lakhs be made for the welfare of the mentally retarded child as well as for
the plaintiff. Plaint document is perused, plaint averment also perused along
with plaint documents.
18. The main contention of the plaintiff in the rejection of plaint
enquriy is that non payment of consideration of Rs.20 lakhs for the Release
Deed and not paid the amount for making the fixed deposit in the bank as
per the recital in the Release Deed. Only under the promise to settle Rs.20
lakhs by the defendant brother, the plaintiff sister has, in good spirit,
dropped the prosecution in C.S.No.310 of 2009. It is the vital aspect that
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the brother has deceived the sister by promising her to pay the amount and
to deposit the amount so as to take care of the mentally retarded child of the
plaintiff, was not even considered by the trial court. The plaint document
substantiated the plaint averment that no amount is deposited in the bank
account of the plaintiff. It is specifically pleaded that he made a
commitment and failed to honour the commitment which resulted in
continuous cause of action and hence the point of limitation raised by the
defendant on the facts and circumstances becomes a mixed question of fact
and law and hence, in my considered view, the trial court ought not to have
decided the appeal by mere arithmetic calculation. The plaint averment and
plaint document shows that Rs. 20 lakhs, as promised by the defendant
brother is not deposited and it is matter for trial and answers to be elicited
from the cross examination of PW1 as to what had happened and hence, I
find that the facts and circumstances of the case, as described in detail in
the preceding paragraph, does not fall under Order VII, Rule 11 (c) and (d)
of CPC and hence, I find that the order is liable to be set aside. The trial has
to go on and the matter has to be decided based upon the evidence only.
19. Accordingly, in the result,
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(1) the appeal in O.S.No.105 of 2023 is allowed.
(2) The decree and judgment made in O.S.No.257 of
2018 pursuant to the order in I.A.No.8014 of 2018, dated
21.03.2019 is set aside.
(3)The suit O.S.No.257 of 2018 is remitted back to the
City Civil Court, IV Addl. Judge for trial in accordance with
law.
30.10.2024.
Index:Yes/No
Internet:Yes/No
msr
RMT.TEEKAA RAMAN, J.
msr
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Pre-Delivery judgment in
30.10.2024
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