Madras High Court

G.P.S.Garudappan Ramanujam vs Sengamalam Janaki (Died) : 1St on 7 April, 2025

                                                                                        SA(MD)No.374 of 2004

                                  BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT


                                                 Dated: 07/04/2025
                                                              CORAM
                                        The Hon'ble Mr.Justice G.ILANGOVAN


                                               SA(MD)No.374 of 2004
                                                        and
                                              CMP(MD)No.1940 of 2004

                     G.P.S.Garudappan Ramanujam                      : Appellant/1st Respondent/
                                                                       Plaintiff
                                                              Vs.

                     1.Sengamalam Janaki (Died)                      : 1st Respondent/
                                                                       Appellant/5th Defendant
                     2.G.P.S.Alwan (Died)
                     3.G.P.S.Seenivasaraghavan (Died)
                     4.G.P.S.Periyathiruvadi (Died)
                     5.Geetha @ Alamelu             : Respondents 2 to 5/
                                                      Defendants 1,2,3 & 6/
                                                      Respondents 2, 3, 4 & 6
                     6.Thiruvengadam (Died)
                     7.Seema                        : Respondents 6 and 7/
                                                      LR.s of the 4th Defendant
                     8.Periathiruvadi Sadagopan
                     9.A.Jayam (Died)               : R8 and R9/LR.s of the
                                                      deceased R1
                       (R8 and R9 are brought on record
                       as the LR.s of the deceased 1st respondent,
                       vide court order, dated 04/10/2021 made
                       in CMP(MD)Nos.8183, 8184 and 8186 of 2021
                       in SA(MD)No.374 of 2004)
                     10.A.Andal
                     11.G.A.Devapiran
                     12.G.A.Aravindan
                     13.G.A.Govindan
                     14.G.A.Alagu Janaki
                     15.G.A.Mangala Deepa Rakha      : R10 to R15/LR.s of the
                                                       deceased R2
                        (R10 to R15 are brought on
                        record as LR.s of the deceased
                        2nd respondent, vide court order,
                        dated 04/01/2022 made in CMP(MD)
                        Nos.8959, 8961 and 8966 of 2021
                        in SA(MD)No.374 of 2004)


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                                                                                           SA(MD)No.374 of 2004

                     16.Geetha Nachiyar
                     17.G.P.S.Sathyanarayanan           : R16 and R17/LR.s of
                                                          the deceased R4
                        (R16 and R17 are brought on record
                        as LR.s of the deceased 4th respondent,
                        vide court order, dated 21/12/2021
                        made in CMP(MD)Nos.8967, 8969 and
                        8970 of 2021 in SA(MD)No.374 of 2004)
                     18.Sampathkumar
                     19.Satagopan
                     20.Venkatesan Alagiasingam
                     21.Thiruvadi.A.P.
                     22.Alagiasingam Raman               : R18 to R22/LR.s of
                                                           the deceased R9
                        (R18 to R22 are brought on record
                        as LR.s of the deceased 9th respondent
                        vide court order, dated 08/11/2022 made
                        in CMP(MD)Nos.7883, 7886 and 7887 of 2022
                        made in SA(MD)No.374 of 2004)

                                  PRAYER: Second Appeal is filed under Section 100 of
                     the Civil Procedure Code, against the judgment and decree
                     of the Subordinate Judge, Tuticorin in AS No.18 of 2002
                     dated 23/08/2004 reversing the judgment and decree of the
                     District         Munsif,   Srivaikundam              passed          in   OS   No.405   of
                     1994, dated 21/12/2001.


                                     For Appellant                 : Mr.V.M.Balamohan Thampi
                                                                     for Mr.B.Ponnu Pandi

                                     For R1 to R4,
                                         R6 and R9                 : Died

                                     For R8, R18 to R22            : Mr.K.S.Jeyaganeshan

                                     For R5, R16 & R17             : Mr.D.Srinivasa Raghavan

                                     For R7, R10 to R15            : No appearance




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                                                                                              SA(MD)No.374 of 2004

                                                                  JUDGMENT

This second appeal is filed against the judgment and

decree of the Sub Judge, Tuticorin, passed in AS No.18 of

2002, dated 23/08/2004 reversing the judgment and decree

of the District Munsif, Srivaikundam, passed in OS No.405

of 1994, dated 21/12/2001.

2.The plaint averments:-

(i)The 4th defendant namely Garudappan Srinivasa

Iyengar is the father of the plaintiff and the defendants

1 to 3. The suit properties are the coparcenary undivided

properties. They are in joint possession and enjoyment.

All are entitled to 1/5th share equally. But the 4th

defendant was acting against the interest of the joint

family and was not taking care by the defendants 1 to 3.

The plaintiff demanded partition in January 1994. The

5th defendant is a stranger. But from 10/09/1994, he

started saying that he purchased the entire property from

the 4th defendant and attempted to remove the plaintiff

and the defendants 1 and 2 forcibly from the possession.

If at all, the 5th defendant can work out his remedy by

filing a suit for partition. Hence, the suit is filed

seeking partition of the plaintiff's 1/5th share, for

permanent injunction, costs.

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(ii)The 6th defendant was impleaded on her own

stating that she is also having share in the property.

So, the plaint was amended.

(iii)The 5th defendant namely Sengamalam Janaki alone

contested the matter. The defendants 1 to 4 remained ex-

parte, later the 6th defendant was deleted from the suit.

3.The statement filed by the 5th defendant:-It is

denied that the 4th defendant was acting against the

interest of the family property. The 5th defendant

purchased the entire properties. It is denied that the

sale executed by the 4th defendant is not binding upon the

share of the defendants 1 to 3. The 4th defendant for the

family expenses and for maintenance of the childrens for

valid considerations executed the sale deed, dated

29/10/1982 in favour of the defendant. In the sale deed,

the plaintiff's mother and the brother signed as

witnesses. The defendants leased out the property in Door

No.136 of in favour of one Ramakrishna Moorthy. The other

houses are in the possession of the defendants. Since the

sale deed was effected by the 4th defendant as Kartha of

the joint family, the suit is liable to be dismissed.

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4.On the basis of the pleadings of both sides, the

following issues were framed by the trial Court:-

(1)Whether the plaintiff is entitled to get 1/5th share in the suit property?

(2)Whether the plaintiff is entitled to get the relief of permanent injunction as against the 5th defendant?

(3)To what other reliefs, the plaintiff is entitled to?

5.On the side of the plaintiff, 2 witnesses were

examined and 2 documents marked. On the side of the

defendants, one witness was examined and 8 documents were

marked. The Commissioner's report and plan were marked as

Exs.C1 and C2.

6.The trial court, by judgment and decree, dated

21/12/2001 passed preliminarily decree for partition as

prayed for without costs and permanent injunction was

granted. Against which, AS No.18 of 2002 was preferred by

the Sub Court, Tuticorin. The appellate court differed

from the judgment and decree of the trial court,

dismissed the suit by allowing the appeal.

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7.Against which, this second appeal is preferred by

the appellant/plaintiff.

8.At the time of admitting the second appeal, the

following substantial questions of law were framed:-

                                              (1)Whether            the       findings         of     the
                                      lower    appellate            court        are      vitiated     by

failure to consider the evidence of P.W. 1 and P.W.2 and the evidence of D.W.1 which is at variance and proved fact that the possession never parted to the 1st respondent on the basis of the Ex.B-17?



                                              (2)Whether             the        lower         appellate
                                      court is correct in proceeding on the
                                      assumption         that        the      sale       under       Ex.B1

executed by the 4th defendant as Kartha of joint family in the absence of any recitals in Ex.B1?

(3)Whether the lower appellate court is right in casting the burden of proof on the appellant who is the member of joint family especially when the respondent as alienee failed to establish that the sale under Ex.B-1 is for family necessity?

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9.Heard both sides.

Substantial question of law Nos.2 and 3:-

10.Since both are connected, taken up together for

consideration. The relationship between the parties is

admitted. The 4th defendant namely Garudappan Srinivas

Iyengar is the father of the plaintiff and the defendants

1 to 3. According to the plaintiff, the suit properties

are the ancestral joint family properties belongs to

them. As such, each are entitled to 1/5th share each.

Conveniently for obvious reasons, the defendants 1 to 4

remained ex-parte namely the father also remained ex-

parte. The contesting defendant is only the 5th defendant.

The 5th defendant purchased the suit property from the 4th

defendant under Ex.B1, on 29/10/1982. This, according to

the plaintiff, is not valid to the extent of his share.

11.Now, we will straightway go to the recitals in

Ex.B1 as to see whether any indication is available in it

to show that it is the ancestral joint family properties

of the defendants 1 to 4. On the side of the plaintiff,

only two documents in the form of order passed in RCOP

No.1 of 1999 and Ex-order are marked. It is simply stated

by the 5th defendant that the 4th defendant being the

Kartha of the family and for legal necessity and

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maintenance, the property was sold. There is no specific

denial in the written statement filed by the 5th defendant

that the properties were not the joint family properties

of the defendants 1 to 4, but separate property of the 4th

defendant. So, the appellate court mainly concentrated

only upon the legal necessity of the sale and binding

nature of the same upon the plaintiff. Now before this

court, it was submitted that it is the self-acquired

property of the 4th defendant.

12.Ex.B1 reads that the suit property and other

properties devolved upon him by way of registered Will,

dated 28/10/1946. The reason for the sale has been

mentioned as for educational expenses of the childrens,

discharging the debts, etc. The sale consideration is

mentioned as Rs.30,000/-. The 5th defendant was directed

to discharge the debts. So, the document reads that the

property was bequeathed through the will, dated

28/10/1946. The alleged Will is not produced. The

mortgage created by the 4th defendant in favour of the 5th

defendant is marked as Ex.B2. So, this mortgage debt

mentioned as a part of the sale consideration in Ex.B1.

Wherein also, it has been mentioned by him that for the

purpose of discharging his debts and for family

necessity, the property was mortgaged. After the sale,

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the revenue records were changed in the name of the 5th

defendant.

13.Now against these documents, as mentioned above,

the plaintiff produced Ex.A1 the order passed in RCO No.1

of 1999. It was between the 5th defendant Chengamalam

Janaki, 4th defendant namely Garudappan Srinivasa Iyengar

and the plaintiff namely Garudappan Ramanujan. Wherein,

it has been stated by the 5th defendant that originally

the suit building belongs to the Srinivasa Iyengar. It

was sold to her on 29/10/1982 (Ex.B1). But the possession

was in the hands of Srinivasa Iyengar and the plaintiff

herein. The agreement of lease rent is Rs.1,200/- per

month. Due to non-payment of rent, RCOP was filed by the

5th defendant.

14.In which counter filed by the 4th defendant. It is

stated by him that the sale deed, dated 29/10/1982 is

valid only to the extent of his share. The other co-

sharers are also living in the premises. The possession

on the date of Ex.B1 was not handed over. There was no

landlord and tenant relationship between them. Even at

the time of Ex.B1, he told the 5th defendant that the

entire property does not belong to him. But however, the

5th defendant promised to convince the other co-sharers

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and get the sale deed from them also. Believing the words

of the 5th defendant, the 4th defendant executed the sale

deed, mentioning as if the properties belonged to him

absolutely.

15.Similarly the plaintiff, who is the second

respondent in that matter, filed a counter supporting the

case of the 4th defendant. A finding has been recorded

that whether the 4th defendant is entitled to sell the

entire property is beyond the scope the petition. The 4th

defendant, who is his father was not examined as a

witness in that RCOP proceedings. Since because the basic

ingredients of the landlord and tenant was not

established, the petition was dismissed. Against which,

it appears that no further proceedings were taken. Based

upon this, now it has been stated by the plaintiff that

it is the ancestral joint family property of him and the

defendants 1 to 4.

16.Now, we will go to the evidence of PW1. He would

say that the 4th defendant is a drunkard and involved in

immoral activities such as gambling, etc. He was not

properly taking care of the family. So, Thiruvengadathan

@ Balaji was managing the affairs of the joint family.

He was examined as PW2. He supports the evidence of PW1

on that particular issue. We will deal about this later.

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17.Now coming back to the nature of the property, he

has simply stated that it is the ancestral joint family

properties. During the course of the cross examination,

he would say that it devolved upon them through their

grandmother. But would deny that the 4th defendant is a

respectable person in the locality. He was born in 1969.

The sale made by the 4th defendant was not known to him,

at that time. But brought to his notice only in 1982. So,

except this oral evidence, no other evidence is available

to show that the suit properties are the ancestral joint

family of the defendants 1 to 4.

18.More-over, in the RCOP Proceedings, there can be

no valid finding that the suit properties are the

ancestral properties of the 4th defendant and the

plaintiff. Even if any such observation is made in that

proceedings, it is not biding upon the civil court. RCOP

is only summary in nature. The title, as mentioned in the

RCOP proceedings, cannot be gone into. We can exclude

Exs.A1 and A2 from our consideration to find the nature

of the properties.

19.Now we will go to the judgment of the trial court

on that particular aspect. It proceeded solely on the

ground that the suit property is the ancestral joint

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family property. But failed to note that the particular

recital in Ex.B1 as to the source of tracing of right

through Will.

20.Now, we will go to the judgment of the appellate

court on that aspect.

21.The appellate court did not also concentrate upon

particular recital in Ex.B1. Against the specific recital

in Ex.B1, no contra evidence is placed before this court.

As mentioned above, in the RCOP proceedings, the

execution of the sale deed by the 4th defendant is

admitted. But contra to that recital, he filed the

counter stating that the property belongs to the

ancestral joint family.

22.Section 92 of the Indian Evidence Act permits the

oral evidence to contradict the terms only in certain

conditions. Now if at all, the proviso (1) to section 92

of the Indian Evidence Act can be pressed into service,

which reads as under:-

“S.92.When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral

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agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from its terms:

Proviso (1)-Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law.”

23.But here, the 4th defendant has conveniently

remained ex-parte for obvious reasons as mentioned above.

Even if we take his counter in the RCOP to be his defence

in this matter also, it has been simply stated by him

that the nature of the property was brought to the notice

of the 5th defendant at the time of purchase; But the 5th

defendant prevailed upon him to execute the sale deed by

mentioning the same as it is his separate property. But

this is completely out of place and cannot be believed at

all. During the course of the cross examination, nothing

was put to DW1 about this particular averment in the

counter filed by the 4th defendant in the RCOP

proceedings.

24.Now with this in mind, let us go further.

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25.As mentioned above, nothing is brought on record

by the plaintiff to show that it is the ancestral joint

family properties in which he got 1/5th share.

26.Now we will go to the other aspect of the sale.

The validity of the sale deed is attacked by the

plaintiff saying that it was not for consideration and

execution for immoral or illegal purpose. This plea can

be taken only if the plaintiff is able to establish that

the suit property belongs to the ancestral joint family

properties. When the primary point fails, this point does

not arise at all. During the course of the argument, it

was submitted by the appellant that the nature of the

property is admitted in the written statement filed by

the 5th defendant. But there is no such admission as

mentioned above. It has been simply stated that the 4th

defendant as the Kartha of the family is entitled to sell

the property. So, this argument is not correct on record.

But however, to set the records right, we can also take

up this plea from the angle of plaintiff's case.

27.In Ex.B1 the plaintiff's mother namely

Thiruvenkatam Janaki and the second defendant namely

G.P.S.Alwan have signed as witnesses. But none of them

was examined on the side of the plaintiff to show that

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consideration mentioned in the sale deed is for immoral

or illegal purpose. The nature of the consideration was

extracted by me earlier. So, it need not be repeated.

When the plaintiff's mother and the brother have signed

as witnesses in the document, the plaintiff cannot attack

this document stating that no consideration was passed.

It appears that DW1 was very old lady at the time of her

examination before the court in 2001. So, for some of the

questions, more particularly with regard to the passing

of sale consideration, she was not able to give proper

particulars during the course of cross examination. We

cannot expect a person at the age of 80 to remember all

those facts, which took place in 1982.

28.So, absolutely, there is no evidence on record,

except the evidence of PW2 to show that the 4th defendant

was not managing the affairs of the family in a proper

manner. In fact, that was not his counter in the RCOP

proceedings. Except the oral evidence of PW1 and PW2

regarding the character of the 4th defendant and the legal

necessity of the same, no other evidences, which are

believable in nature were brought on record by the

plaintiff. In fact, as mentioned above, the suit was

filed to frustrate the sale in an improper manner. So,

the suit itself is not proper. It is nothing, but

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collusive suit between the plaintiff and the 4th defendant

to defeat the rights of the 5th defendant, who is the bona

fide purchaser for value. So, the appellate court has

appreciated the legal necessity in a proper perspective

and binding nature of the same upon the plaintiff. So,

the substantial question of law Nos.2 and 3 do not arise

at all.

29.The learned counsel appearing for the appellant would rely upon the following judgments:-

(i)Faquir Chand Vs. Sardarni Harnam Kaur (dead) represented by her Lrs. And others (AIR 1967 Supreme Court 727 (V 54 C

151)

(ii)Sangnath and others Vs. Babu s/o.Sidling Ambulge and others (2019(4)AIR Bom.R 616).

30.Per contra, the learned counsel appearing for the

8th respondent would rely upon the following judgment:-

(i)A.Pattammal alies Pachaiyammal Vs. Nagarajan and others (CDJ 1977 MHC

366);

(ii)Elango Vs. Poongodi and others (CDJ 2000 HMC 999);





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                                              (iii)Kehar              Singh            (Dead)through
                                      Legal     Representatives                  and      others    Vs.

Nachittar Kaur and others [(2018)14 SCC

445)

31.Since, it has been specifically mentioned in

Ex.B1 that the property devolved upon him by way of Will,

it became his absolute property. Neither the plaintiff

nor his sons are having any right till the life time of

the 4th defendant. So, they cannot challenge the validity

of the document.

32.Regarding the first substantial question of law

also, the evidence of PW1 and PW2 are not believable in

view of the discussion made above and this substantial

question of law has been framed on the point possession.