Madras High Court
Guruva Thayammal vs Jeya Leela (Died) on 18 February, 2025
Author: R.Vijayakumar
Bench: R.Vijayakumar
S.A.Nos.120, 121 and 344 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 26.06.2025
JUDGMENT PRONOUNDED ON : 21. 07.2025
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.Nos, 120, 121 and 334 of 2001
and CMP.No.1335 of 2001
SA.Nos.120 & 121 of 2001
Guruva Thayammal ....Appellant/1st Respondent
/Plaintiff in both appeals
Vs
1.Jeya Leela (died)
2.Kutty alias Rajaboopathi
3.Jeeseeli
4.Rajaman Singh
5.Sridhar ...Legal heirs of the 1st respondent/
in both appeals
6.Ramadoss
7.Rajammal
8.Marimuthu ...Respondents/Respondents/
/Defendants in both appeals
(Memo is recorded to the effect that R1 died, R2 to R5 who are already
on record are recorded as legal heirs of the deceased R1 vide Court
order dated 18.02.2025)
1/21
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S.A.Nos.120, 121 and 344 of 2001
SA.No.334 of 2001
Guruva Thayammal ...Appellant/First Respondent
/Plaintiff
Vs
1.Marimuthu ...1st respondent/appellant
/4th defendant
2.Ramdas
3.Rajammal ...Respondents 2 & 3/
Respondents 2 and 4/
Defendants 1 and 3
4.Jeyaleela (died)
5.Kutty alias Rajaboopathi
6.Jeeseeli
7.Rajaman Singh
8.Sridhar ....Legal heirs of the 4th respondent
(Memo is recorded to the effect that R4 died, R5 to R8 who are
already on record are recorded as legal heirs of the deceased R4 vide
Court order dated 18.02.2025)
COMMON PRAYER : Second Appeal is filed under Section 100 of C.P.C,
to set aside the common judgment made in A.S.No.29 of 1997, A.S.No.45 of
1997 and A.S.No.53 of 1997 and the decree in A.S.No.29 of 1997 all dated
26th June 1998 on the file of the Additional Sub Court, Srivilliputhur and
restore the decree and judgement dated 27th January 1997 made in O.S.No.
277 of 1996 on the file of the Additional District Munsif, Srivilliputhur.
(In all the second appeals)
For Appellant : M/s.Chithra Sampath
Senior Counsel for Mr.P.Santhosh Kumar
For Respondents : Mr.M.Thirunavukkarasu for R8
:M/s.M.Rajeswari for R4 & R5
:No appearance – R2, R3, R6 and R7
2/21
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S.A.Nos.120, 121 and 344 of 2001
COMMON JUDGMENT
All the three second appeals have been filed by the plaintiff in
O.S.No.277 of 1996 on the file of the Additional District Munsif Court,
Srivilliputhur.
(A)Factual Matrix:
2.The suit schedule properties were jointly purchased by one
Sudalaimuthu Nadar and his wife Pathamuthu Ammal under Exhibit A1 dated
23.03.1959. The said Sudalaimuthu Nadar had died intestate. Pathamuthu
Ammal had executed two settlement deeds in favour of the plaintiff under
Exhibit A2 dated 19.03.1979 and Exhibit A3 dated 22.03.1979 with regard to
the 2nd schedule property in respect of her ½ share in the property purchased
under Exhibit A1. The balance ½ share belonging to Sudalaimuthu Nadar is
shown as 1st item of the 3rd schedule property. Apart from that, two other
items are shown in the 3rd schedule property.
3. It is the case of the plaintiff that after the settlement deed was
executed in her favour, she had handed over the property to the 2nd defendant
for management and after death of the mother in the year 1992, he had
refused to share the benefits from the agricultural properties. Therefore, the
suit for declaration of title and recovery of possession with regard to the 2nd
schedule property.
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S.A.Nos.120, 121 and 344 of 2001
4.The plaintiff had further contended that as far as the 1 st item of 3rd
schedule property ( half share of Sudalaimuthu Nadar), she is entitled to 1/4 th
share. The 2nd and 3rd items in the 3rd schedule property are house property
and a pathway connected to the house and they are ancestral properties and
therefore, she is entitled to seek 1/4th share in the entire 3rd schedule property.
Hence, she has prayed for a preliminary decree and a final decree to be
passed for the 3rd schedule property.
5.The defendants have filed a written statement contending that
though the properties were jointly purchased in the name of Sudalaimuthu
Nadar and Pathamuthu Ammal, Pathamuthu Ammal did not have any
independent income. The entire sale consideration came from Sudalaimuthu
Nadar. Therefore, Pathamuthu Ammal is only a name lender for her ½ share.
In such circumstances, the mother is not entitled to execute Exhibits A1 and
A2 settlement deeds in favour of the plaintiff.
6.The defendants have further contended that Exhibits A1 and A2
settlement deeds were obtained by playing fraud upon the mother and
therefore, they are not valid in the eye of law. It was further contended that
these two documents were never acted upon and the documents have not
come into force. It was further contended that pursuant to the said settlement
deed, possession was not taken over by the plaintiff and the possession
continued to be with the defendants.
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S.A.Nos.120, 121 and 344 of 2001
7.The defendants have further submitted that the plaintiff, the
mother and the 3rd defendant (another daughter) have executed Exhibit
B1/B18 release deed on 04.10.1972 with regard to Item Nos.2 and 3 in the 3 rd
schedule property. As regards as the 1st item, they have relinquished their
rights orally. Therefore, the suit for partition is not maintainable. The
defendants have further contended that the 2nd defendant has executed a
mortgage deed with regard to the 1st item of 3rd schedule in favour of the 4th
defendant under Exhibit B16 on 06.09.1993.There was a registered partition
deed between the defendants 1 and 2 under Exhibit A5 on 21.12.1994 in
which 'A' schedule property was allotted to the 2nd defendant. The 2nd and 3rd
items in the 'C' schedule was allotted to the 1st defendant.
8.The defendants have further stated that relying upon the partition
deed, the 2nd defendant has executed a sale deed in favour of the 4th defendant
on 23.02.1995 under Exhibit A4 /B13 with regard to the 1st item of 'C'
schedule property. The plaintiff has never taken possession of the property
pursuant to the settlement deed and the plaintiff, mother and other sisters
have relinquished their in the suit schedule property. They have prayed for
dismissal of the suit.
9.The trial Court arrived at a finding that Exhibits A1 and A2 have
been proved in accordance with law and therefore, the plaintiff is entitled to a
decree for declaration of title with regard to the 2nd schedule property. The
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S.A.Nos.120, 121 and 344 of 2001
trial Court further found that there are discrepancies in Exhibit B1 release
deed and Exhibit A5 partition deed and therefore, they are not legally
sustainable. The trial Court proceeded to grant preliminary decree for
partition with regard to 1/4th share of the plaintiff in the 3rd schedule property.
10.The defendants 1, 2 and 4 have filed three independent first
appeals before the Additional Subordinate Court, Srivilliputhur. The First
Appellate Court arrived at a finding that the plaintiff has not examined the
attestor of Exhibits A2 and A3 and therefore, those settlement deeds have not
been proved. The First Appellate Court arrived at a finding that the document
has not come into force and the possession was not taken over by the plaintiff
pursuant to Exhibit A1 and A2. The First Appellate Court further found that
the defendants have proved Exhibit B1 release deed with regard to the 2nd and
3rd items of 3rd schedule property.
11.The First Appellate Court further found that since the plaintiff is
not a party to the partition deed, the same is not binding upon her. Therefore,
the First Appellate Court proceeded to partly reverse the decree of the trial
Court and has granted a decree for partition with regard to the 1 st item of the
suit schedule property and dismissed the suit with regard to the 2 nd and 3rd
schedule property. Challenging the common judgement and decree passed in
these three first appeals, present second appeals have been preferred by the
plaintiff.
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S.A.Nos.120, 121 and 344 of 2001
12.The second appeals were admitted on the following common
substantial questions of law:
“1.Whether the Court below is correct in holding that
Exs.A2 & A3 were not proved in the absence of any challenge
made by the defendants by way of counterclaim?
2.Whether the Court below was justified in holding that
Exs.A2 & A3 were not proved, when the defence taken was the
plea of fraud and coercion, which had to be proved by the
defendants?
3.Whether the Court below rejected the plead of ouster
pleader by the defendants is correct to hold that Exs.A2 and A2
were not acted upon in regard to undivided share?
4.Whether the Court below erred in holder that the
plaintiff had not obtained patta after Exs.A2 and A3 when
admittedly, the suit B schedule was an undivided share and the co-
sharers were her kith and kin?
5.Having rejected the plea of ouster pleased by the
defendants, whether the Court below is correct in holding that the
Exs.A2 and A3 were not acted upon in regard to undivided
share?”
(B)Submissions of the learned counsels appearing on either side:
13.The learned Senior Counsel appearing for the appellant
submitted that as far as Exhibits A1 and A2 settlement deeds are concerned,
the execution of the document by the mother is admitted by the defendant.
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S.A.Nos.120, 121 and 344 of 2001
Their only defence is that it was obtained by fraudulent means. In such
circumstances, the examination of attestor is not necessary. After the death of
the father in the year 1972, the mother was alive till 1992. Therefore, there
was no occasion for the daughter to insist for mutation of revenue records in
her name. The First Appellate Court was not right in arriving at a finding that
the possession has not been taken and the settlement deeds have not come
into force.
14.The learned Senior Counsel had further submitted that when a
plea of fraud is raised by the defendants, the entire burden would be upon the
defendants to establish the same. The First Appellate Court was not right in
shifting the burden upon the plaintiff. She had further submitted that the First
Appellate Court had erred in arriving at a finding that Exhibits A2 and A3
have not been acted upon merely based upon the fact that the revenue records
have not been mutated in the name of the plaintiff. When Exhibits A2 and A3
relate to settlement of undivided share, the mutation of revenue records
cannot take place until the properties are partitioned.
15.The learned Senior Counsel for the appellant had further
submitted that when a plea of ouster, pleaded by the defendants has been
rejected by the Appellate Court, whether it was correct in holding that
Exhibits A2 and A3 were not acted upon. She had further submitted that the
plaintiff, her mother and other sisters are illiterate persons and they have
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S.A.Nos.120, 121 and 344 of 2001
signed Exhibit B1 without having knowledge about the character and
contents of the documents. In view of the principles of non est factum, the
document becomes void and therefore, the plaintiff is entitled to a decree for
partition with regard to item Nos. 2 and 3 in the 3rd schedule property also.
16.The learned Senior Counsel had relied upon a judgement of the
Hon'ble Supreme Court reported in 2023 SCC Online SC 1022 ( Ramathal
and others Vs. K.Rajamani (dead) through Lrs. and another) and the
judgement of this Court reported in 2019-1-L.W.927(A.Mahinmaidas Vs.
P.Parameswari and another) to contend that, in the case of plea of non est
factum, the entire burden is upon the beneficiary of the document. The
learned Senior Counsel further submitted that as far as Exhibit B1 is
concerned, there are inconsistencies with regard to the payment of
consideration, the attestors were not examined and only the scribe was
examined as PW1. In Exhibit A5 partition deed, there was no reference about
Exhibit B1 release deed. Therefore, it is a clear case of vitiating factor. The
First Appellate Court has not properly appreciated the plea of non est factum
with regard to Exhibit B1 document.
17.The learned Senior Counsel had further pointed out that there is
no reference about Exhibit B1 release deed or Exhibit A5 partition deed in the
sale deed executed by the 2nd defendant in favour of the 4th defendant on
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S.A.Nos.120, 121 and 344 of 2001
23.02.1995. Hence, the learned Senior Counsel prayed for allowing the
second appeals and to restore the judgement and decree of the trial Court.
18.Per contra, the learned counsel appearing for the
respondents/defendants had contended that the plaintiff had not filed a single
document to establish the fact that Exhibits A1 and A2 have been acted upon.
In fact, the mother of the parties did not have any independent income and
she was just a name lender and therefore, she had no right to execute Exhibits
A1 and A2. The very fact that the plaintiff has not chosen to mutate the
revenue records in her favour from the year 1979 onwards, will clearly
establish the fact that these documents were not acted upon.
19.The learned counsel for the respondents had further submitted
that Exhibit B1 release deed has been executed voluntarily by the mother and
two sisters in the year 1972. They have not chosen to challenge these
documents for so many years. They have also received the consideration
mentioned in the said document. It is too late in the day to contend that they
were not aware of the contents of the documents. They are not illiterates and
therefore, the plea of non est factum is not applicable to the facts of the
present case.
20.The learned counsel had further submitted that merely because
there is some discrepancy between the oral and the documentary evidence
touching upon the release deed, considering the fact that the evidence is
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S.A.Nos.120, 121 and 344 of 2001
recorded after more than 30 years, minor discrepancies cannot affect the
validity of the document. After having executed Exhibit B1, the plaintiff
cannot make a claim over the 2nd and 3rd schedule properties. He further
contended that as regards other items, the plaintiff, the mother and other
sisters have orally relinquished their shares. Based upon the oral
relinquishment, the brothers have entered into a partition deed on 21.12.1994
and based upon the allotment made in the partition deed, the sale deed was
executed by the 2nd defendant in favour of the 4th defendant on 23.02.1995.
Therefore, the release deed, the partition deed and the sale deed executed by
the 2nd defendant in favour of the 4th defendant are valid in the eye of law and
not liable to be set aside.
21.The learned counsel for the respondents had further contended
that the defendants are in possession of the suit schedule properties right from
the date of death of the father and they are in enjoyment of the same and the
rights of the plaintiff, if any over the suit schedule properties, have been lost
in view of the principles of ouster. Hence, he prayed for confirming the
judgment and decree of the First Appellate Court.
22.Heard both sides and perused the material records.
(C)Discussion:
23.It is not in dispute that Sudalaimuthu Nadar and his wife
Pathamuthu Ammal have jointly purchased the 1st schedule property under
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S.A.Nos.120, 121 and 344 of 2001
Exhibit A1 on 23.03.1959. According to the defendants, Pathamuthu Ammal
is just a name lender and the entire sale consideration came from
Sudalaimuthu Nadar. In the light of the said pleadings, the defendants have
attacked the right of Pathamuthu Ammal to execute Exhibits A2 and A3
settlement deeds with regard to the alleged ½ share in favour of the plaintiff.
24.The unamended Section 3(2) of the Benami Transactions
(Prohibition) Act, 1988 is extracted as follows:
“3. Prohibition of benami transactions- ----
(1)...
(2) Nothing in sub-section (1) shall apply to
(a)the purchase of property by any person in the name of
his wife or unmarried daughter and it shall be presumed, unless the
contrary is proved, that the said property had been purchased for the
benefit of the wife of the unmarried daughter;
(b)the securities held by a -
(i) depository as registered owner under sub-section(1) of
section 10 of the Depositors Act, 1996
(ii)Participant as an agent of a depository.”
25.The Hon'ble Supreme Court in a judgment reported in (1995) 4
SCC 572 ( Nand Kishore Mehra Vs. Sushila Mehra) in Paragraph No.8 has
held as follows:
8.....Since the plaintiff is the husband who had the
right to enter into a benami transaction in the matter of
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purchase of property in the name of his wife or unmarried
daughter, as we have held earlier, he is entitled to enforce his
rights in the properties concerned if he can succeed in
showing that he had purchased them benami in the name of
his wife. But in view of the statutory presumption incorporated
in sub-section (2) of section 3 of the Act, he can get relief
sought in the suit only if he can prove that the properties
concerned had not been purchased for the benefit of the wife,
even if he succeeds in showing that the consideration for the
purchases of the properties had been paid by him.”
26.A Division Bench of our High Court in a judgment reported in
(1997) 2 LW 908 ( Parvathi Ammal Vs. Solai Ammal and another) in
Paragraph No.14 has held as follows:
“14.......If the family properties which are the subject
matter of the suit for partition are the self-acquisitions of Kesava
Padayachi and Kesava Padayachi has chosen to purchase some of
the items in the name of his wife, apparently to benefit her, merely
because the purchases were said to have been made by the husband
from his funds or that it was, along with the other properties
belonging to the family, enjoyed by the family itself is not a sufficient
clue or evidence or basis for readily coming to the conclusion that
the acquisition by Kesava Padayachi in the name of his wife, the 1st
defendant, is benami. Normally, as pointed out in the series of cases
referred to above, the general presumption should be that the
husband thought fit to purchase some of the items of the properties in
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S.A.Nos.120, 121 and 344 of 2001
the name of his wife for her benefit and welfare. Such presumption
would be in our view be strong in a case where the very case of the
plaintiff is that all properties belonging to the father are his self-
acquisition and not that they were purchased from out of any
ancestral nucleus or nucleus coming tout of the joint family or
coparcenary property or funds. In such cases, Courts have been
insisting upon very strong and specific claim at the instance of the
defendants who project the claim of benami, in making it also
obligatory on the part of such person to prove the same that the
acquisition was not meant to be for the benefit or welfare of the
person in whose name it was acquired but it was for the family only,
and that the ostensible owner was merely a name-lender. In this case,
there is no such plea or assertion and the evidence is also slender
and practically nil from the side of the plaintiff who failed to make
any specific plea as above and produce any independent evidence
except examine herself on the plaintiff's side......”
27.Another Division Bench judgment of our High Court in a
judgment reported in 2023 (4) CTC 9 ( Shanthi and others Vs.K.Senthil
Kumar) in Paragraph No.18 has held as follows:
“18.Section 2 (9) (A) of amended Benami Transactions
(Prohibition) Act, 2016 would suggest a rule of evidence namely,
property purchased by husband in the name of his wife shall be
presumed to be purchased for the benefit of wife, in other words, it
creates a rebuttable presumption that property purchased by husband
in the name of his wife is her property unless the contrary is proved
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S.A.Nos.120, 121 and 344 of 2001
by the person, who alleges it was not purchased for her benefit.”
28.In a case where a person purchases property in the name of his
wife or his unmarried daughter, there is a legal presumption that the
properties are purchased for the benefit of the wife or his unmarried daughter,
unless the contrary intention is proved. Therefore, it is clear that the entire
burden would be upon the person who pleads that the property was not
purchased for the benefit of his wife and she was just a name lender. In the
present case, though Sudalaimuthu Nadar was alive from 1959 to 1972, he
has not chosen to raise such a plea. The defendants are not able to establish
that ½ share, though purchased in the name of their mother, it was not for her
benefit. In such circumstances, it is clear that both Sudalaimuthu Nadar and
Pathamuthu Ammal are joint owners of the 1st schedule property. Therefore,
Pathamuthu Ammal would be entitled to ½ share as a matter of right and her
entitlement to execute Exhibits A2 and A3 in favour of her daughter cannot
be questioned.
29.The defendants have further contended that Exhibits A2 and A3
have not been acted upon and the plaintiff has not examined the attestor of
Exhibits A2 and A3 to prove the same in accordance with law.
30.The Hon'ble Supreme Court in a judgment reported in (2000) 7
SCC 189 ( Rosammal Issetheenammal Fernandez (dead) by Lrs. and
others Vs. Joosa Mariyan Fernandez and others) in Paragraph No.11 has
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held as follows:
“11.Under the proviso to Section 68 the obligation to produce
at least one attesting witness stands withdrawn if the execution of any such
document, not being a will which is registered, is not specifically denied.
Therefore, everything hinges on the recording of this fact of such denial. If
there is no specific denial, the proviso comes into play but if there is denial,
the proviso will not apply.........”
31.In the present case, the defendants have only contended that
Exhibits A1 and A2 documents have been obtained by the plaintiffs by
playing fraud upon the mother. Therefore, it is clear that the execution of
document is not in dispute.
32.In view of the judgement of the Hon'ble Supreme Court referred
to supra, when the execution is not in dispute, as far as a settlement deed is
concerned, examination of attestor is not mandatory. Hence, the First
Appellate Court was not right in arriving at a finding that the plaintiff has not
proved Exhibit A2 and A3 by examining the attestors.
33.It is further contended by the defendants that Exhibits A1 and
A2 deeds have not been acted upon and the defendants have not taken
possession pursuant to the said documents. Though Exhibits A2 and A3 were
executed by the mother in the year 1979, she was alive till 1992. The present
suit for partition has been filed on 14.02.1996. It is understandable that the
plaintiff has not chosen to mutate the revenue records or take possession of
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S.A.Nos.120, 121 and 344 of 2001
the property when her mother was alive. That apart, only an undivided ½
share was settled by her mother in favour of the plaintiff. In such
circumstances, the plaintiff becomes a joint owner along with defendants 1 to
3. Therefore non-mutation of the revenue records or not taking the physical
possession of the property pursuant to the settlement deed, would not affect
the validity of Exhibits A1 and A2. In the light of these circumstances, the
plea of defendants that the right of the plaintiff to seek partition stands ousted
cannot be countenanced.
34.The mother, plaintiff and the 3rd defendant have jointly executed
Exhibit B1 release deed on 04.10.1972 in favour of their two brothers namely
defendants 1 and 2. The learned Senior Counsel appearing for the plaintiff
has attacked these documents invoking the principles of non est factum.
There are no pleadings in the plaint that the plaintiff has executed Exhibit B1
release deed under misrepresentation with regard to the character of the
document. Though in the written statement, Exhibit B1 release deed has been
pointed out, no reply statement has been filed raising the plea of non est
factum. Even during the chief examination, the plaintiff has not deposed
anything relating to the plea of non est factum. In such circumstances, it is
clear that the plaintiff along with two other co-owners have chosen to execute
Exhibit B1 release deed in favour of the defendants 1 and 2 with regard to
item Nos. 2 and 3 in the 3rd schedule. Therefore, the plaintiff would not be
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S.A.Nos.120, 121 and 344 of 2001
entitled to seek partition with regard to Item Nos. 2 and 3 of 3 rd schedule
property.
35.As far as Exhibit A5/B15 partition deed between the defendants
1 and 2 is concerned, the plaintiff is not a party to the said document and
therefore, the same is not binding upon her. Relying upon the partition deed,
the 2nd defendant has sold the 1st item of 3rd schedule property to the 4th
defendant under Exhibit B13. Since the partition deed is not binding upon the
plaintiff, any sale made by the 2nd defendant with regard to 1st item of 3rd
schedule shall bind the share of the 2nd defendant alone.
36.The plaintiff has got a settlement deed with regard to an
undivided ½ share in Exhibit A1 property from her mother which is shown as
2nd schedule in the suit. Since she has got only an undivided ½ share from her
mother, the prayer for declaration of title and recovery of possession with
regard to the 2nd schedule property is not maintainable and she would only
entitle to seek partition of ½ share in Exhibit A1 property.
37.As far as the 3rd schedule property is concerned, the plaintiff is
not entitled to a share in the 2nd and 3rd items of 3rd schedule property in view
of Exhibit B1 release deed. The plaintiff would be entitled to a preliminary
decree for partition with regard to another 1/4th share in Exhibit A1 property.
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S.A.Nos.120, 121 and 344 of 2001
38.In view of the above said deliberations, all the substantial
questions of law are answered in favour of the appellant. The judgement and
decree of the First Appellate Court are modified as follows:
a)The plaintiff shall be entitled to a preliminary decree for 5/8th
share in the property covered under Exhibit A1 sale deed dated 23.03.1959.
b)The prayer for declaration of title and recovery of possession
with regard to the 2nd schedule property is hereby rejected.
c)The prayer for partition with regard to the 2nd and 3rd items in 3rd
schedule property is hereby rejected.
39.Accordingly, the second appeals are partly allowed on the above
said terms. No costs. Consequently, connected miscellaneous petition is
closed.
21.07.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes/No
msa
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S.A.Nos.120, 121 and 344 of 2001
To
1.The Additional Subordinate Judge
Srivilliputhur
2.The Additional District Munsif
Srivilliputhur
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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S.A.Nos.120, 121 and 344 of 2001
R.VIJAYAKUMAR,J.
msa
Pre-deliveryCommon Judgment made in
S.A.Nos, 120, 121 and 334 of 2001
21.07.2025
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