Madras High Court
Rajendran vs Arumuga Kondiyar (Deceased) on 9 June, 2025
Author: G.Jayachandran
Bench: G.Jayachandran
A.S.No.138 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 09.06.2025
CORAM:
THE HONOURABLE Dr. JUSTICE G.JAYACHANDRAN
A.S.No.138 of 2022
and
C.M.P.No.5002 of 2022
Rajendran .. Appellant
Vs.
Arumuga Kondiyar (Deceased)
Cause title accepted and consequently bringing on record the
respondents 4 and 5 as Lrs of the deceased 1st defendant viz (Arumuga
Kondiyar) vide Court order dated 18.02.2022 made in C.M.P.No.2363 of
2022 in A.S.Sr.No.100664 of 2021 (CVKJ)
1. Ravichandran
2. Muralidharan
3. Mohan Raj
4. S.Santhanalakshmi
5. M.Bharathi Devi .. Respondents
PRAYER: Appeal Suit is filed under Section 96 read with 41 Rule 1 & 2
of C.P.C, to set aside the judgment passed in O.S.No.14 of 2013 dated
07.01.2021, on the file of Additional District Judge, Mayiladuthurai and
decree the suit with costs throughout.
For Appellant : M/s.Abhinav Parthasarathy
For Respondents : Mr.N.C.Ashok Kumar for
Mr.A.Veerasamy for R1 to R3
No appearance for R4 & R5
1/14
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A.S.No.138 of 2022
JUDGMENT
Appeal is filed by the unsuccessful plaintiff who has instituted suit
against his father and purchaser of the property from his father
contending that the property purchased with the joint contribution of
himself and his father being unilaterally sold by the father and therefore
his half share in the suit property to be declared.
2. The case of the plaintiff is that he along with his father
purchased Item No.1 of suit property on 30.08.2001 and Item Nos.2 to 4
on 16.12.2009. Though it was purchased in the name of his father, he has
contributed money for the said purchase and it had been enjoyed as a
joint family property. When his father tried to alienate the property to
meet out the medical expenses, he did not consent for that since the
property had the prospect of fetching higher value in future. However,
without his concern, his father has sold away the property in favour of
defendants No.2 to 4 under three different sale deeds for much lesser
value with the help of relative by name Kumaravel. The suit for partition
candidly conceded by the father who was arrayed as the first defendant,
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whereas the purchasers of the property contested the suit.
3. Based on the pleadings, the trial Court had framed the following
issues:-
(i) Whether half of the portion of the suit property is the exclusive
property of the 1st defendant or not ?
(ii) Whether the plaintiff is entitled to get the relief of portion in the
suit property as prayed for or not ?
4. Plaintiff was examined as P.W.1, one Babuji was examined as
P.W.2, eleven documents were marked as Exs.A1 to A11, Father of
plaintiff, Arumuga Kondiyar was examined as D.W.1 with the aid of
Advocate Commissioner, the second defendant was examined as D.W.2
Kumaravel who alleged to have mediated the sale transaction examined
as P.W.3, ten documents were marked on the side of defendants as
Exs.D.1 to D.10.
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5. The Court below after appreciating the evidence dismissed the
suit holding that the plaintiff had failed to prove contribution, joint
accession and joint possession of the property. The suit property stands in
the name of first defendant and eventhough the first defendant had
pleaded that he had only half share of the property, the recital of the title
does not indicate so. As well he has not disclosed in the covenant of the
sale deeds that he has only half share in the property while conveying the
property to defendants 2 to 4. Therefore the suit is liable to be dismissed.
6. Challenging the judgment and decree, the present appeal is filed
on the ground that the Trial Court ought to have given due credence to the
documents relied by the plaintiff as well as the evidence of D.W.1 along
with his written statement.
7 D.W.1 in his pleadings as well as in his evidence had
categorically deposed that the property was purchased with the
contribution of his son i.e., the plaintiff and his wife and the property was
enjoyed jointly along with the plaintiff. He had further deposed he intend
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to sell only half of his share to the defendants 2 to 4, but for under value
the entire property has been conveyd under the sale deed. Exs.A1 to A3
and such sale is hit by the principles of 'non est factum'. The trial Court
omitted to appreciate that the content of the document is substantially
contradicted by oral evidence. The ambiguity in the written document
explained through oral evidence hence same is admissible under proviso
to Section 92 of the Evidence Act,1872.
8. The learned counsel appearing for the appellant relying upon
judgments of Hon'ble Supreme Court wherein the principles of 'non est
factum' being explained contended that the sale deeds marked as Exs.A1
to A3 was obtained by mis-representation and also for under value. Hence
it need not be challenged separately since it is void ab initio. Further he
would also submit that D.W.1, the vendor had clearly stated in his written
statement that Exs.A1 to A3 sale deeds were obtained under mis-
representation for under value. The said pleading were not controverted
by any reply statement or by cross examination of D.W.1. Therefore, he
would submit that un-controverted pleading amounts to admission and
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goes against the defendant. Hence the Trial Court judgment need to be
reversed.
9. Per contra the counsel appearing for the respondents would
submit that it is collusive suit between the father and son to defeat the
right of bonafide purchasers of the property who were arrayed as
defendants 2 to 4. After executing the sale deeds Exs.A1 to A3 with full
knowledge and consent and having received the full sale consideration on
03.06.2010, the present suit is instituted by the vendor through his son
after four years. This is after unsuccessful in launching criminal
prosecution against the purchasers. The first defendant being the absolute
owner of the property, he with full knowledge, consent and taking
consideration had alienated the property, and had not questioned it at any
point of time till date. However, through his son, he had attempted to
extract money through this vexatious litigation. This attempt been foiled
by the defendants 2 to 4 by adducing necessary evidence.
10. Regarding omission to cross examine D.W.1, the learned
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counsel appearing for the respondents submitted that D.W.1 was
examined with the aid of Advocate Commissioner. The order passed by
the Court appointing Commissioner to record evidence was challenged by
the respondents. However, pending Revision petition, D.W.1 was
examined. Thereafter to recall and re-examine D.W.1 the defendants 2 to
4 filed application and the same was allowed. However, when the
Advocate Commissioner went to the place of D.W.1 to record the cross
examination, D.W.1 was not in a position to depose. Hence the Advocate
Commissioner returned the warrant mentioning that D.W.1 was not in
good health and not responding to the question, hence he was not able to
complete the mission. Therefore, the learned counsel for the respondents
submit that since the testimony of D.W.1 could not be completed and he
died subsequently, his testimony has to be eschewed.
11. The point for determination is whether Exs.A1 to A3 is void on
applying the principles of non est factum. If so, whether the appellant is
entitled for any share in the suit property.
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12. On a perusal of the record and evidence let in by the parties,
this Court finds that there is no evidence to show that the sale
consideration for purchase of the subject property in the year 1981 was
paid from and out of any contribution by the appellant. Eventhough he
has pleaded so, there is no evidence to substantiate his contribution. Mere
admission of D.W.1, the father of plaintiff that the property was
purchased with the contribution of the son is not sufficient to declare that
the appellant is the co-owner of the property and have equal right in the
property. More particularly after the father (DW1) sold away the entire
property to third parties receiving consideration.
13. The learned counsel appearing for the appellant pegged his
submission on the premise that the subject property is purchased out of
joint family nucleus and therefore there need not be any proof for the
contribution when P.W.1 and P.W.2 as well as D.W.1, the father of the
plaintiff admit that the appellant had contributed his income for purchase
of the property.
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14. This Court is unable to countenance such argument when the
specific plea of the appellant / plaintiff is that the property was purchased
in the name of the first defendant from and out of the earning of the first
defendant and himself from the income he earned while he was working
as a Superintendent in a Courier company, nothing pleaded how much he
contributed for purchase of the property in 1981 and whether it was
purchased by him and first defendant to be enjoyed as a joint family
property or as exclusive property of his father (D.W.1). The plaintiff
though he is the son of the defendant, he has no right or share in the self
acquired property. The plaintiff had failed to prove he had contributed for
purchase of the property. He had failed to prove that his father was only a
new lender. Merely harping on the admission of the first defendant, the
appellant seeks share in his property after the first defendant had
alienated the property to DW.2 to D.W.4 representing that he is the
absolute owner of the property purchased out of his income.
15. To apply the principles of 'non est factum', the person who take
the said defence has to establish that the document was obtained by
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mistake or by misrepresentation without explaining the content or making
the executant know about the content of the document. The plea of non
est factum will not be available for a person who signed the document
without taking the trouble to find out atleast the general effect of the
document. It is also repeatedly held by the Courts that there must be
radical difference between the document signed by the party and the
pesumption of the signatory about the content of the document. It must be
of no fault of the signatory, a document by mis-representation must have
been obtained.
16. In the case in hand, the first defendant admits that he had the
intention to sell the property since he had the necessity to meet out his
medical expense. He admits that his son did no consent for sale of
property. Therefore, with the help of said Kumaravel he sold the property
to D.W.2 to D.W.4 under Exs.A1 to A3. His case is that his intention was
to sell only ½ his share in the property and even for that he was not paid
adequate consideration by the defendants 2 to 4. If his contention is true,
he should have challenged the sale deeds which he never choose to do
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so. Only after four years of execution of sale through his son he wants to
set up a plea of 'non est factum'. Neither D.W.1 nor his son P.W.1 (the
plaintiff) had probablised through evidence that the signature in the
documents were obtained by misrepresentation or by mistake and there is
a radical or fundamental difference between what is signed and what he
thought he was signing.
17. Further, while examining the testimony of D.W.1 as stated
above, his evidence not completed. After allowing the application to
recall and re-examine D.W1., due to the failing health of D.W.1 the
Commissioner was not able to record the cross examination which was
permitted by the Court. The deprivation of right to cross examine the
witness is not due to the fault of the defendant but due to the ill health of
the witness. May be, the defendants ought to have cross examined D.W.1
at the earliest point of time which they failed to do, but the failure cannot
be put against them after the Trial Court has found fit to recall the
witness and permitted the defendants to cross examine.
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18. Hence, whatever, evidence given by D.W.1 not subjected to
cross examine by the contesting party. Hence it has to be taken with pinch
of salt. On the whole, considering the facts and evidence, the plaintiff has
pleaded joint contribution and claim the property as joint family property.
However no evidence produced to prove it. Having failed to prove and
substantiate the pleadings, trial Court has rightly dismissed the suit.
19. This Court finds no material to interfere with the findings of
the Trial Court. Hence, the appeal stands dismissed. There shall be no
order as to costs. Consequently connected miscellaneous petition is
closed.
09.06.2025
Index: Yes/No
Speaking/Non Speaking order
Internet: Yes
Neutral Citation: Yes/No
rap
To
1. The Additional District Judge, Mayiladuthurai
2.The Section Officer, High Court of Madras, Chennai.
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DR.G.JAYACHANDRAN,J.
rap
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09.06.2025
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