Madras High Court
Ganesan vs Palaniammal (Died) on 7 January, 2025
2025:MHC:4345
S.A.No.332 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 01 / 10 / 2024
JUDGMENT PRONOUNCED ON : 07 / 01 / 2025
CORAM :
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
S.A.NO.332 OF 2020
1.Ganesan
2.Ilayaperumal ... Appellants / Appellants /
Defendants
Vs.
1.Palaniammal (Died)
2.Ravichandran @ Ravi
3.Raj
4.Velayudham ...Respondents 1 to 4/ Respondents /
Plaintiffs
5.Ramayee
6.Anjalai
7.Chinnachi
8.Lakshmi
9.Jayanthi
10.Padmavathi ... Respondents 5 to 10 /
legal representatives of
First Respondent -
Palaniammal
(Note: R.1 passed away. R.5 to R.10
are brought on record as legal
representatives of the deceased - R1
(Palaniammal) vide Order of this
Court dated February 2, 2024 made
in CMP No.1616 of 2024 in
S.A.No.332 of 2020)
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
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S.A.No.332 of 2020
Procedure, 1908, praying to set aside the Judgment and Decree dated
November 28, 2018 made in A.S.No.72 of 2016 by the Additional District
and Sessions Court, Ariyalur, confirming the Judgment and Decree dated
April 30, 2012 made in O.S.No.344 of 2004 by the District Munsif Court,
Jayankondam.
For Appellants : Mr.P.Valliappan
Senior Counsel for M/s.B.Shivani
For Respondent-1 : Passed away
For Respondents 2 to 9 : Mr.D.Selvaraju
For Respondent 10 : Mr.M.S.Shriram Narayanan
JUDGMENT
This Second Appeal is directed against the Judgment and
Decree dated November 28, 2018 passed in A.S.No.72 of 2016 by the
'Additional District and Sessions Court, Ariyalur' ['First Appellate Court'
for brevity], whereby the Judgment and Decree dated April 30, 2012
passed in O.S.No.344 of 2004 by the 'District Munsif Court,
Jayankondam' ['Trial Court' for brevity] was confirmed.
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
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PLAINTIFFS' CASE
3. Murugan, the first plaintiff’s husband, moved to Malaysia
in his young age, where he married the first plaintiff. Their children,
including late Subramaniyan and Plaintiff Nos.3 and 4, were born there.
The second plaintiff is Subramaniyan’s son. Murugan and the first plaintiff
sent money from Malaysia to one Ayyakkannu, who used it to purchase
5.82 Acres in Survey No. 211/1 in Murugan’s name vide two Sale Deeds
dated August 28, 1940 and September 6, 1940.
3.1. Ayyakkannu managed the land for over 10 years on
behalf of the first plaintiff and Murugan. Due to Ayyakkannu’s illness, the
first plaintiff and Murugan entrusted the purchased property to Rathinam,
the son of Karuppan and father of the first defendant, along with original
Sale Deeds around the year 1950. Karuppan who is none other than the
elder brother of Murugan. Rathinam managed the land while Murugan and
the first plaintiff sent funds for its maintenance and kist payments.
3.2. In 1961, the first plaintiff, Murugan, and their children
returned to India. After Karuppan’s demise, Murugan and Rathinam
divided the ancestral properties, each receiving 1.71 Acres of land and a
house site. Later, Murugan fell ill and the first plaintiff was unable to
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manage the properties as her children were minors. Taking advantage of
this situation Rathinam offered assistance but after Murugan’s demise in
1962 he began to explode.
3.3. Hence, the first plaintiff reclaimed the properties and
personally managed them. Rathinam later agreed to cultivate 10 plots in
Survey No. 211/1 and executed a waram chit on March 30, 1970. The
Patta for the property was in Subramaniyan’s name, and the first plaintiff
was paying the kist.
3.4. Subsequently, first plaintiff and Subramaniyan had
conveyed 1 Acre ancestral land on September 23, 1971 to one Erudhiyam.
At that time, first defendant and his father Rathinam and second
defendant’s father – Thangarasu were present and they had mingled a false
Partition Deed covering the plaintiffs’ Survey No.211/1 with the said Sale
Deed. Upon learning the same, the plaintiffs refused to sign therein. On
August 21,1972, the 3rd plaintiff, who did not sign the Sale Deed dated
September 23, 1971, executed a Release Deed in respect of his shares in
ancestral properties. Further, on the same day, the plaintiffs executed
another Sale Deed to Erudhiyam in respect of 71 Cents of ancestral
properties. At that time, on the pretext of assisting, the defendants
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fraudulently created a Partition Deed by mingling it with the other two
documents and registered them on the next day. This came to light only on
second week of September 2002, when first defendant stopped paying
waram upon stealthily obtaining an Updating Registry Scheme [UDR]
Patta. Hence, the 3rd plaintiff approached the Village Administrative
Officer to mutate the Patta and during enquiry, the first defendant
produced an unregistered deed dated September 23, 1971 and another
registered deed dated August 21, 1972. After updating Survey, the
plaintiffs are in possession and enjoyment of sub divisions - 1D, 1E, 1K,
1L of Survey No.211, consisting totally an extent of 0.89.5 Hectare (2.23
Acres). The defendants are in illegal occupation of sub divisions - 1A, 1B,
1C, 1F, 1G, 1H, 1I, 1J, 1M, 1N of Survey No.211, along with 60 Cents on
the southern side of Survey No.211/1H, total extent being 2.92 Cents.
3.5. The first defendant purchased 72 Cents on the northern
side of Survey No.211/1H from the plaintiffs. Hence, the plaintiffs seek
declaration of title, recovery of possession and mesne profits against the
defendants.
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DEFENDANTS' CASE
4. The defendants filed written statement wherein it is stated
that the first plaintiff’s husband - Murugan and Karuppan are brothers and
had owned ancestral properties. Karuppan’s sons are Rathinam, Manickam
and Vadivel. Vadivel and Murugan went to Malaysia and since the Patta
for ancestral properties stands in the name of Rathinam and Karuppan,
through the money sent by Vadivelu and Murugan, an extent of 5.82 Cents
in Survey No.211 was jointly purchased in the name of Murugan.
4.1. In the year 1961, Murugan returned to India and
partitioned ancestral properties along with the said 5.82 Cents in Survey
No.211 with the first defendant’s father – Rathinam, which was however
not registered. In 1971-72, the plaintiffs sold ancestral properties of an
extent of 1 Acre in Survey No.210/6 in favour of Erudhiyam on
September 23, 1971. Since the 3rd plaintiff – Raj did not sign, the 3rd
plaintiff executed a Release Deed later on August 21, 1972. On the same
date, the plaintiffs executed a Sale Deed in favour of Erudhiyam in respect
of 71 Cents of ancestral properties. In other words, the plaintiffs’ family
sold their entire share of 1.71 Acres in the total extent of 3.46 Acres of
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ancestral properties in Survey No.210/6.
4.2. As ancestral properties along with 5.82 Cents in Survey
No.211 purchased by Murugan were already partitioned vide unregistered
Partition Schedule and since now there are no ancestral properties left,
with a view to avoid disputes, the plaintiffs partitioned with Rathinam, the
said 5.82 Cents in Survey No.211 purchased by Murugan through a
registered Partition Deed.
4.3. Thereafter, the first defendant purchased an extent of 72
Cents from the plaintiff in Survey No.211/1H on August 9, 1974. The
plaintiffs and the first defendant are in possession of their respective
properties, with Patta issued in their individual names for their respective
properties.
4.4. The plaintiffs have suppressed the existence of these
Partition Deeds and falsely claimed ownership. According to the
defendants, the Suit is barred by limitation and estoppel as the plaintiffs'
failed to challenge the validity of the Partition Deeds or seek cancellation
of those documents. Thus, the defendants sought to dismiss the Suit with
costs.
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TRIAL COURT
5. At trial, 3rd plaintiff – Raj examined himself as P.W.1 and
two other witnesses were examined as P.W.2 and P.W.3 and Ex-A.1 to Ex-
A.12 were marked on the side of the plaintiffs. On the side of the
defendants, 1st defendant – Ganesan was examined as D.W.1, 2nd
defendant – Ilayaperumal was examined as D.W.2 and another witness
was examined as D.W.3, and Ex-B.1 to Ex-B.40 were marked.
6. Upon hearing both sides and considering the evidence
available on record, the Trial Court concluded that the extent of 5.82 Acre
purchased by Murugan vide Ex-A.1 and Ex-A.2 – Sale Deeds are his self-
acquired properties and there is no evidence available on record to say that
they are purchased using the money sent by Vadivelu. Hence the
defendants have no right over the properties covered under Ex-A.1 and
Ex-A.2. Since the said properties are not joint family properties but self-
acquired properties of Murugan, the plaintiffs and the defendants have no
necessity to execute Ex-B.8 - Partition Deed in respect of it and the same
was obtained by fraud. The defendants were in possession and enjoyment
of the Suit Property based on the waram and taking advantage of the
same, the defendant obtained UDR Patta and the same will not confer any
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title to the defendants. The fraudulent act came to light only in September
2, 2002 and the Suit is filed on April 23, 2004 and hence not barred by
limitation. Accordingly, the Trial Court decreed the Suit as prayed for.
FIRST APPELLATE COURT
7. Feeling aggrieved, the defendants preferred an appeal
before the First Appellate Court, which after hearing both sides and
perusing the documents available on record, dismissed the Appeal Suit
concurring with the findings rendered by the Trial Court.
SECOND APPEAL
8. Feeling aggrieved, the defendants have preferred this
Second Appeal which was admitted by this Court on August 23, 2024 on
the following Substantial Questions of Law:
'(a)When the respondents failed to prove their plea that
the appellants were in permissive possession and failed to
establish their alleged title, whether the Courts below are
correct in law in granting the reliefs of declaration and
recovery of possession?
(b)When the respective parties had treated the Suit
properties as well as other properties as Hindu Joint Family
properties and entered into Ex-B.8 Partition Deed to which the
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1st respondent is a signatory, whether the Courts below are
correct in law in disbelieving Ex-B.8?
(c)When there is necessary pleading as well as proof to
establish that the appellants have also perfected title, whether
the Courts below are correct in law in rejecting the said
claim?
(d)Whether the Courts below are correct in law in not
adhering to the provisions of Section 27 of the Limitation Act,
1963 and thereby, non-suiting the respondents?'
ARGUMENTS:
9. Mr.P.Valliappan, Senior Counsel for M/s.B.Shivani, learned
Counsel for the appellants / defendants would argue that the plaintiff and
the defendants’ family owned ancestral properties in Survey No.210. The
Patta pertaining to ancestral properties stands in the name of Rathinam
and Karuppan. The first plaintiff’s husband - Murugan and Rathinam’s
brother – Vadivelu were working in Malaysia. Both sent money to India,
for the purpose of purchasing property. Since the Patta in respect of
ancestral properties stands in the name of Rathinam, the Suit Property has
been purchased in the name of Murugan vide Ex-A.1 and Ex-A.2 – Sale
Deeds. Hence the properties covered under Ex-A.1 and Ex-A.2 are joint
family properties.
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9.1. After Murugan returned to India, a Partition Schedule
was executed in the presence of elders whereby ancestral properties of an
extent of 1.73 Acres in Survey No.210 and 2.83 Acres in Survey No.211/1
were allotted to the plaintiffs. Similarly, ancestral properties of an extent
of 1.73 Acres in Survey No. 210 and 2.50 Acres in Survey No.211/1 were
allotted to Rathinam’s branch. The plaintiffs sold a portion of the ancestral
properties allotted to them to one Erudhiyam in 1971 and the remaining in
1972, vide two Sale Deeds. To address the prevailing disputes and to
maintain harmony, they entered into Ex-B.8 - registered Partition Deed on
August 21, 1972, whereby the properties covered under Ex-A.1 and Ex-
A.2 were partitioned with Rathinam, the first defendant’s father.
Thereafter the plaintiffs sold an extent of 72 Cents in Survey No.211/1 in
favour of first defendant. Accordingly the Suit Properties belonged to the
first defendant. Through an oral arrangement between the defendants, the
Suit Properties now are being enjoyed by both the defendants. The
plaintiffs are enjoying their respective portions. The plaintiffs supressed
the above facts and filed the Suit with a view to get unjust enrichment and
unlawful gains.
9.2. He would further argue that the plaintiff who pleaded
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fraud bears the burden to prove the same. In this case, the plaintiffs did not
discharge the said burden. The plaintiffs admitted their possession and
enjoyment of sub divisions - 1D, 1E, 1K, 1L of Survey No.211, consisting
totally an extent of 0.89.5 Hectare (2.23 Acres). The UDR Survey was
done in 1986 and hence the Suit is barred by limitation. Defendants are in
continuous possession and enjoyment of the their respective portions.
Revenue records stand in their name. Further, they have made huge
developments in the Suit Properties. The Trial Court as well as the First
Appellate Court erroneously appreciated the evidence and decreed the
Suit. Their Judgments and Decrees are liable to set aside. Accordingly, he
would pray to allow the Second Appeal, set aside the Judgment and
Decree of First Appellate Court as well as the Trial Court, and dismiss the
Suit.
10. Mr.D.Selvaraju, learned Counsel for the respondents 1 to
9 would argue that there is no evidence available on record to show that
the properties covered under Ex-A.1 and Ex-A.2 – Sale Deeds were
purchased under the joint contribution of first plaintiff’s husband –
Murugan and Vadivelu, who is the brother of Rathinam. On the other
hand, Vadivelu has sent money to Rathinam and purchased properties in
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Vadivelu’s wife -Thayalnayagi’s name and hence, the defendants cannot
take a hot and cold stand. The Trial Court and the First Appellate Court
concurrently held that the properties covered under Ex-A.1 and Ex-A.2 are
self-acquired properties of Murugan. Further concurrently held that the
Murugan’s self-acquired properties cannot be partitioned with the
defendants who had no right or interest in it. Ex-B.8 - Partition Deed was
obtained by fraud. Further would argue that a person who had pre-existing
right alone would be entitled to partition the properties. Partition is not a
transfer. Since the defendants have no right in the property, the alleged
Partition Deed does not confer any title to them. The Partition Deed was
created fraudulently with a view to defeat and defraud the plaintiffs’ rights
over the Suit Properties. The First Appellate Court and the Trial Court
appreciated the evidence in the right perspective and decreed the Suit.
There is no reason to interfere with the same. Accordingly, he would pray
to dismiss the Second Appeal and confirm the Judgment and Decree of
First Appellate Court and the Trial Court.
11. Mr.M.S.Shriram Narayanan, learned Counsel for the
Respondent No.10 would argue in line with Mr.D.Selvaraju, learned
Counsel for the respondents 1 to 9 and pray to dismiss the Second Appeal
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confirming the Judgment and Decree of the First Appellate Court and the
Trial Court.
DISCUSSION:
12. This Court has heard on either side and perused the
materials available on record in light of the Substantial Questions of Law.
13. The following genealogy shows the admitted relationship
between the parties:
14. On perusal of records, it is seen that an extent of 3.46
Acres in Survey No. 210 was owned by Karuppan and Murugan (first
plaintiff’s husband) as ancestral properties. Patta in respect of the
aforesaid ancestral properties stood in the name of Rathinam who is the
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father of first defendant and brother of Vadivelu. Vadivelu and Murugan
went to Malaysia for work, earned and sent money to India to purchase
property.
15. According to the plaintiffs, Murugan sent money for
purchasing property solely in his name. According to the defendants, both
Vadivelu and Murugan jointly sent money and the property covered under
Ex-A.1 and Ex-A.2 were purchased jointly.
16. Survey No.210, 211 and 212 are situate contiguously.
Vadivelu’s wife - Thayalnayagi had purchased an extent of 2 Acre situated
in Survey No.212. Admittedly, the plaintiffs sold their share in Survey
No.210 to one Erudhiyam and thereafter Ex-B.8 – Partition Deed was
allegedly executed. The plaintiffs pleaded that Ex-B.8 – Partition Deed
was obtained by fraud. In such a scenario, the burden is upon the plaintiffs
to prove that Ex-B.8 - Partition Deed was obtained by fraud. The plaintiff
miserably failed to do so. Moreover, in 1983 to 1986, UDR Scheme was
introduced, and Patta was issued under the said scheme recognising the
possession of the plaintiffs and the defendants of their respective
properties. As per Ex-A.11 - Patta, the plaintiffs’ family is in possession
and enjoyment of sub divisions - 1D, 1E, 1K, 1L of Survey No.211,
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consisting totally an extent of 0.89.5 Hectare (2.23 Acres). The plaintiffs
have categorically admitted the same in the plaint (Paragraph No. 23 and
24) as well as in 3rd plaintiff / P.W.1’s evidence. Relevant portion of the
plaint reads thus:
“23.After updating survey now Plaintiffs are in
possession of 1D, 1E, 1K and 1L totally 0.89.5 acres (Acre
2.23). Defendants are in illegal occupation of 1A, 1B, 1C, IF,
1G, 0.60 cents on southern side in 1H, 1L, 1J, 1M and IN.
Totally their illegal occupation comes to Acre 2.92.
24.1st defendant's purchased 0.72 cents is on northern
side in 1H.”
17. It is settled law that admission made in the pleadings is a
judicial admission admissible under Section 58 of Indian Evidence Act,
1872 and bears strong evidentiary value. Hence, the plaintiffs are in
possession and enjoyment of sub divisions - 1D, 1E, 1K, 1L of Survey
No.211, consisting totally an extent of 2.23 Acres.
18. The plaintiffs sold 72 Cents under Ex-A.8 – Sale Deed to
first defendant, wherein the southern boundary has been recited as
Rathinam’s portion [uj;jpdk; ghfj;jpw;F tlf;F]. The plaintiff did not
challenge Ex-A.8 – Sale Deed. These facts strengthen the credence of Ex-
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B.8 – Partition Deed. To be noted, the plaintiffs filed Suit in O.S.No.108
of 2006 seeking permanent injunction against the first defendant and the
has marked the plaint therein as Ex-B.3, but there is no evidence adduced
by either side to show the outcome of the Suit. Nor is there any other
document regarding the said Suit. Till date the plaintiff did not challenge
Ex-A.8 – Sale Deed executed in favour of first defendant. Further, the
revenue records show that from 1975 the plaintiffs and defendants are
enjoying their respective shares as per Ex-B.8 - Partition Deed and Ex-A.8
– Sale Deed. The defendants have mortgaged the Suit Properties, obtained
loan on it, and even dug a bore well and obtained electricity service
connection in it. The plaintiffs who are admittedly residing in a contiguous
property cannot plead that they are unaware of the same. In these
circumstances, the Suit is barred by limitation.
19. Further the defendants denied Ex-A.10 – Warram
Mochalika in their written statement. It being an unregistered document,
the burden is upon the plaintiffs to prove the alleged warram. The
plaintiffs did not examine any witness with regard to Ex-A.10 and they
failed to prove it. It is true that the first defendant (D.W.1) has admitted
the signature found in Ex.A.10 as that of his father – Rathinam. Mere
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admission of signature alone is not sufficient, in the facts and
circumstances of this case, to conclude that Ex-A.10 was executed by
Rathinam. Further, Ex-A.12 – Field Measurement Book [‘FMB’] Sketch
shows that the Suit Properties are divided into various plots, and the Pattas
show that the plots under the possession and enjoyment of the defendants
are scattered and not contiguous So are the plots under the possession and
enjoyment of the plaintiffs. If really the defendants are enjoying the plots
under their possession and enjoyment for warram, there is no acceptable
reason assigned by the plaintiffs for giving such scattered plots to the
defendants under Ex-A.10. In these circumstances, this Court is of the
view that the plaintiffs failed to discharge their burden satisfactorily. They
failed to establish their title over the Suit Properties as well as that the
defendants are permissive occupants. Hence, the Judgment and Decree of
the First Appellate Court as well as the Trial Court are liable to be
interfered with. Substantial Questions of Law are answered accordingly.
CONCLUSION:
20. Resultantly, the Second Appeal is allowed. The
Judgment and Decree of the Trial Court as well as the First Appellate
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Court are hereby set aside. The Original Suit is dismissed. Keeping in
mind the facts and circumstances of the case, there shall be no order as to
costs.
07 / 01 / 2025
Index : Yes
Speaking Order : Yes
Neutral Citation : Yes
TK
To
1.The Additional District and Sessions Court
Ariyalur.
2.The District Munsif Court
Jayankondam.
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R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
S.A.NO.332 OF 2020
07 / 01 / 2025
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