Madras High Court
Panneerselvam vs Ramamoorthy Udayar on 19 March, 2025
S.A.No. 1029 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on 27.01.2025
Pronounced on 19.03.2025
CORAM:
THE HONOURABLE Ms. JUSTICE R.N.MANJULA
S.A. No.1029 of 2014
and M.P.No.1 of 2014
Panneerselvam
S/o. Ramar Udayar,
Asakalathur Village,
Kallakurichi TK ... Appellant / First defendant
Vs.
1. Ramamoorthy Udayar
S/o. Chidambara Udayar,
Eyyanar Village,
Kallakurichi. ... First Respondent / Plaintiff
2. Ramar Udayar
S/o. Narayana Udayar,
Asakalathur Village,
Kallkurichi TK.
3. Mookayi Ammal (Died)
W/o. Thangavel Udayar.
4. Sekar (LR's of R3)
S/o. Thangavel Udayar
Both are at Puliyankurichi Village,
Athur TK,
Salem District. ... Respondents 2 to 4 / Defendants 2 to 4
(R3 died. R4 is legal heirs of R3 and he is already on record vide order of the
Court dated 20.10.2022 in S.A.1029/2014)
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1/20
S.A.No. 1029 of 2014
Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, against judgment and decree dated 29.03.2024 passed in
A.S.No.92/2011 on the file of the Sub Court, Kallakurichi confirming the
judgment and decree dated 28.06.2011 passed in O.S.No.454/2004 before
the Principal District Munsif's Court, Kallakurichi.
For Appellant : Mr.T.Sezhian
for Mr.R.Meenal
For R1 : Mr.V.Manohar
For R2 & R4 : Ms.M.Savitha Devi
R3 : Died
JUDGMENT
The appellant is the first defendant. The plaintiff has filed a suit for
partition by claiming half share in the suit properties. The trial Court has
decreed the suit as prayed and passed a preliminary decree for half share in
the suit properties in favour of the plaintiff. The first appeal preferred by the
defendants was dismissed by confirming the judgment of the trial Court.
Aggrieved over the same, the first defendant has preferred the present
Second Appeal.
2. The facts pleaded by the plaintiff in the plaint in brief:-
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The suit properties were originally belonged to one Chinthambi
Udaiyar who is the father-in-law of the plaintiff. Chinthambi Udaiyar had
two daughters and no sons. The third defendant is one of the daughter of
Chinthambi Udaiyar and the other daughter's name is Valliammai.
Chinthambi Udaiyar had settled the suit property in favour of third defendant
and Valliammai through a settlement dated 20.09.1968 and handed over
possession. At that time Valliammai was a minor and hence her mother
Agilandammal had taken possession as her guardian and she had handed
over the properties to Valliammai after she attained majority. Valliammai
married the plaintiff. The suit properties were kept as common by the third
defendant and Valliammai.
2.1 In the year 1979 Valliammai had suffered some Gynecological issues. By
making use of the above situation the third defendant and her mother
Agilandammal along with the third defendant and her husband Thangavelu
convinced her to mortgage her share of the property by stating that she
would require money for her treatment. Instead of getting the mortgage deed
they had managed to get a settlement deed dated 26.03.1979 by cheating her.
The above settlement deed was in favour of the third respondent's son by
name Sekar represented by his grandmother Agilandammal. On 24.04.1979
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Valliammai sent a legal notice stating that the settlement deed dated
26.03.1979 is a fraudulent one. On receiving that Agilandammal sent a reply
on 02.05.1979 stating that she was not aware of any settlement deed and that
could have been a created one. Valliammai continued to be in possession of
her share as usual.
2.2. On 05.11.1979 Valliammai executed a settlement deed in favour of the
plaintiff and from then onwards the plaintiff is in enjoyment of the property
by paying the property tax. In view of the plaintiff's enjoyment of the suit
property, patta has also been granted in his favour. The third defendant had
sold her half share in respect of Items 3 to 7 in favour of the second
defendant. The third defendant and her son Sekar had tried to sell the whole
of the properties in Items 10 and 11 in favour of the second defendant. On
coming to know the above attempt, the plaintiff had sent a legal notice on
25.02.2000 to the defendants 3 and 4. On receiving the said notice, the
defendants 3 and 4 sent a reply notice on 25.01.2022 with false allegations.
So the whole of the suit properties in Items 10 and 11 have been sold to the
defendants 3 and 4. The defendants 3 and 4 did not have any right to sell
Items 10 and 11 in favour of the plaintiff. The first defendant has got only
half share in Items 10 and 11.
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3. The written statement filed by the defendants 2 and 3 in brief:
The fact that the father of the third defendant had executed a settlement
deed dated 20.09.1968 in her favour and her sister Valliammai is correct. It
is false to state that the settlement deed in favour of the third defendant's son
the fourth defendant was obtained by fraud on 26.03.1979. The plaintiff had
deserted Valliammai and he was having extra-marital relationship with the
other women. Hence, Valliammai was under the custody of her sister, the
third defendant. Only out of love and affection, Valliammai had executed the
settlement deed in favour of the fourth defendant on 26.03.1979. From then
onwards Items 3 to 7 and 10 and 11 were enjoyed by the third defendant's
family. The plaintiff had never been in individual or joint enjoyment of the
suit property and the settlement deed in favour of the plaintiff dated
05.11.1979 is not true and valid. It should be a concocted document by
playing fraud on Valliammai. The defendants 3 and 4 are alone are in the
enjoyment of the suit property without any interference. The third defendant
had executed a sale deed in respect of Items 3 to 7 in favour of the second
defendant on 02.03.1993 and handed over possession. The third and fourth
defendant have sold Items 10 and 11 in favour of the first defendant and
handed over possession. The third defendant, Valliammai and Agilandammal
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have sold Items 1 and 2 in favour of one Poomalai Udayar and his wife
Azhagammal on 17.09.1993 and 05.12.1973 and handed over possession.
From then onwards Items 1 and 2 were enjoyed by Poomalai Udayar family.
3.1 The defendants 1 and 2 have annexed their house with Item 10 after they
had purchased the same. The plaintiff ought to have filed the suit by
claiming declaration. Items 1 and 2 are not in the enjoyment of the
defendants and hence no relief can be claimed in respect of Items 1 and 2
against the defendants. The suit is barred by limitation as the settlement deed
has been executed as early as on 05.11.1979. Hence the suit is liable to be
dismissed.
3.2 The settlement deed executed in favour of Valliammai and the third
defendant by their father Chinnathambi Udaiyar on 20.09.1968 is true. It is
false to state that Valliammai was cheated to execute the sale deed dated
26.03.1979 in favour of the fourth defendant. As the plaintiff was having
illegal intimacy with other woman, the plaintiff was living along with her
mother and her sister, the third defendant. So the settlement deed dated
20.09.1968 has been executed in favour of the fourth defendant only out of
love and affection. The allegations that Valliammai has sent a legal notice on
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24.04.1979 and for which Agilandammal had issued reply notice on
02.05.1979 are all false. The alleged settlement deed dated 05.11.1979 in
favour of plaintiff is false. Valliammai had sold a portion of the suit property
in favour of Manikandan on 06.02.1987 itself. Valliammai had sold Items 1
and 2 along with the third defendant and her mother Agilandammal on
17.09.1973 and 05.12.1973. The plaintiff had never been in enjoyment of
any of the suit properties and it is false to state that Valliammai had executed
a settlement deed on 05.11.1979 in favour of the plaintiff. The plaintiff is not
entitled to any relief as prayed. The fourth defendant was in enjoyment of
Items 3 to 7 and 10 and 11 along with the third defendant and they have been
sold subsequently to defendants 1 and 2 and now they are in enjoyment of
the same.
4. On the basis of the above pleadings the trial Court framed the following
issues:
“ 1. 26/3/1979 njjpapl;l jhd brl;oy;bkz;l; gj;jpuk;
Vkhw;wp th';fg;gl;ljh ?
2/ 5/11/1979 njjpapl;l jhd brl;oy;bkz;l; gj;jpuk;
Vkhw;wp cz;ikahdjh ?
3/ jhth 3 Kjy; 11 mapl;l brhj;Jf;fspy;
thjpf;F ghjp ghfk; fpilf;fj;jf;fjh ?
4/ mtrpakhd jug;gpdiu nrh;f;fhj njhc&j;jhy;
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,t;tHf;F ghjpf;fgl;Ls;sjh ?
5/ thjp nfhUk; ghfg;gphptpid ghpfhuk; mtUf;F
fpilf;Ff; Toajh ?
6/ thjpf;F ntW vd;d ghpfhuk; fpilf;fj;jf;fJ?”
5. During the trial, on the side of the plaintiff two witnesses have been
examined as P.W.1 and P.W.2 and Exs.A1 to A14 were marked. On the side
of the defendants two witnesses have been examined as D.W.1 and D.W.2
and Exs.B1 to B21 were marked. At the conclusion of the trial and on
considering the evidence available on record the trial court decreed the suit
by allotting half share and passed a preliminary decree in respect of half
share in favour of the plaintiff. The first appeal preferred by the first
defendant was also dismissed by confirming the judgment of the trial Court.
Aggrieved over the same, the present Second Appeal has been preferred by
the first defendant.
6. The Second Appeal has been admitted on the following Substantial
Questions of Law:
i) Whether in law the courts below are right in granting a decree in
favour of the first respondent when the suit was hit by non-joinder of
necessary parties, limitation and payment of court fee under Section
37(2) of TN Court Fee and Suits Valuation Act ?
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ii) Whether in law the courts below are right in overlooking Ex.A2
settlement was accepted and acted upon and that it could not be
unilaterally cancelled by the settlor vide 2011 2 CTC 1 FB ?”
7. Mr.T.Sezhian, the learned counsel for the appellant / first defendant
submitted that the suit is bad for non-joinder of necessary party namely
Valliammai; the first respondent / plaintiff was not in joint enjoyment and
hence the court fees paid under Section 37(1) Tamil Nadu Court Fee and
Suit Valuation Act, is not correct; the courts below had not considered the
evidentiary value of Ex.A2 settlement deed in favour of the fourth defendant;
the said settlement deed is valid, accepted and acted upon; having settled the
property by virtue of Ex.A2, the settlor has got no power to revoke the
settlement deed and she has no power to execute an another settlement deed
in favour of the plaintiff; the courts below had overlooked the fact that
Valliammai has been living with the third defendant and not with her
husband; Items 10 and 11 have been sold to the first defendant for a valuable
consideration and he is a bonafied purchaser for value; the courts below have
misconstrued Ex.A2 settlement as a Will which is not correct; the patta
(Ex.B21) and Adangal extract (Ex.A18) were not considered properly.
Valliammai had the right to reside in the suit property even after the title
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passed to the fourth respondent and that was also not appreciated.
8. Mr.V.Manohar, the learned counsel for the first respondent, submitted
that Valliammai had executed a settlement deed in favour of the plaintiff on
05.11.1979 and thereafter he had been in possession and enjoyment of the
same. It is right for the courts below to arrive at a conclusion that the
plaintiff is entitled to half share in the suit property.
9. For the sake of convenience, the parties are described as per their rank in
the suit filed before the trial Court.
10. The original owner of the suit property was Chinnathambi Udaiyar. The
plaintiff claims that Chinnathambi Udaiyar had settled his properties in
favour of his two daughters namely Valliammai and the third defendant
through a settlement deed dated 29.09.1968. The settlement deed has come
into force as the beneficiaries have taken possession. However, Valliammai
who is the younger daughter of Chinnathambi Udaiyar was a minor at the
time of executing the settlement deed and hence her mother Agilandammal
had taken possession as a guardian. The plaintiff claims ownership in respect
of the share settled in favour of Valliammai stating that Valliammai had
settled her share of the property in his favour after his marriage with her. It is
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the claim of third and fourth defendant that Valliammai did not have cordial
relationship with the plaintiff and she had been living with her sister, the
third defendant and mother Agilandammal. It is stated that during that time
Valliammai had executed a settlement deed in favour of the fourth defendant
who is the son of the third defendant on 26.03.1979. The settlement deed
alleged to have been executed by Valliammai in favour of the plaintiff is on
05.11.1979 which is subsequent to the earlier settlement in favour of the
fourth defendant. The plaintiff claims that the settlement deed in favour of
the fourth defendant was obtained by fraud by the third defendant.
11. The plaintiff has alleged that on 24.04.1979 Valliammai had sent a legal
notice that the settlement deed dated 26.03.1979 executed in favour of the
fourth defendant is a fraudulent one and on receiving that her mother
Agilandammal had sent a reply on 02.05.1979 stating that she was not aware
of any settlement deed and that could have been a created one. The Courts
below have decreed the suit by believing the version of the plaintiff that the
earlier settlement deed dated 26.03.1979 is a fraudulent one and it has not
been acted upon. Curiously, the plaintiff had not chosen to examine
Valliammai as a witness in order to confirm the facts pleaded by him. The
first appellate Court applied its own reason for not examining Valliammai by
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stating that Valliammai who stood in a hostile relationship, if called as a
witness on the side of the plaintiff, would not have supported the case of the
plaintiff. The above reason is something which the plaintiff himself has not
stated before the Court. Even in case Valliammai has called upon as a
witness and if she did not support the case of the plaintiff, he could have
requested the Court to treat him as a hostile witness and cross-examine her.
When the settlement deed was executed by her father in the year 1968,
Valliammai was said to be a minor and hence her mother was appointed as
guardian. At no point of time the plaintiff had ever filed a suit to declare the
settlement deed dated 26.03.1979 as null and void and that will not bind
Valliammai. Neither Valliammai had filed any suit that the settlement deed
executed by her on 26.03.1979 will not bind her.
12. It is not the contention of the plaintiff that Valliammai had ever
cancelled the settlement deed dated 26.03.1979. Despite the same, the Courts
below had chosen to decree the suit in favour of the plaintiff by stating that
Ex.A2-settlement deed dated 26.03.1979 has not been acted upon. Even for
the purpose of proving the settlement deed dated 24.04.1979, the plaintiff
has not chosen to examine Valliammai who claimed to be the executant of
the settlement deed. The lower Court had convinced itself by comparing the
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contents in the settlement deed dated 26.03.1979 (Ex.A2) and the other
settlement deed dated 05.11.1979 (Ex.A5). It is stated that in Ex.A2
settlement deed executed in favour of the fourth defendant, Valliammai has
made a condition that the absolute right in respect of the suit property can be
enjoyed only after her lifetime and till her lifetime she will be having life
interest over the same.
13. In support of his submission, the learned counsel for the respondent has
cited the judgment of Allahabad High Court in Jagat Narain and another
Vs. Laljee and others reported in 1964 SCC OnLine 99 and submitted that
the chance of a heir apparent cannot be transferred and it is of no effect and
claimed that what is transferred in Ex.A2 – settlement deed would fall within
the exceptions provided under Section 6 of the Transfer of Property Act. But
Ex.A2 – settlement deed appears to be a conditional settlement deed and it
just postpones the absolute right in favour of the settlee and there is no
uncertainty seen in the terms of the settlement deed. Hence, it is wrong even
to presume that what is transferred vide Ex.A2 is a right of a mere expectant
heir.
14. The appellant / first defendant has also made a reference about Section
43 of the Transfer of Property Act which states about the erroneous
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representation of a person who executes a deed of conveyance by claiming
ownership over the property. Such transfers, at the option of the transferree,
operate on any interest which the transferror may acquire in such property at
any time during which the contract of transfer subsists. The above provision
has got no application to the facts of the present case for the very reason that
the plaintiff has not proved that the executor Valliammai is not the owner of
the property at the time when she executed Ex.A2.
15. If the plaintiff accepts that by execution of Ex.A2, Valliammai had lost
her title, that would not be possible for her to execute another settlement
deed in favour plaintiff vide Ex.A3. Some of the judgments were cited by the
respondent has got no relevance to the facts involved in this case.
16. Without the substantive evidence of Valliammai, the trial Court has
come to its own conclusion stating that the earlier settlement deed executed
by Valliammai is non-est in law. The courts below have held that Ex.A5 –
settlement deed dated 05.11.1979 is a valid settlement deed which would
pass title in favour of the plaintiff even without him claiming the relief as to
declaration in view of the cloud caused upon his title. The alleged reply
notice sent by Agilandammal was also not proved by the plaintiff in order to
completely ignore Ex.A2-settlement deed.
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17. Even for any extraneous reasons, Ex.A2 settlement deed has got the
characteristics of the Will only and by execution of Ex.A5 settlement deed,
Ex.A2 got cancelled and that fact has to be stated only by the executant of
these two documents by name Valliammai and not by the plaintiff himself.
When Valliammai is alive, the plaintiff has filed the suit for partition without
claiming the relief of declaration as to the property on which the plaintiff
claims title through Ex.A5. The fact that Valliammai is alive has not been
denied. Valliammai's mother Agilandammal who is said to have sent the
reply notice to her may or may not be alive to say about the fact about her
reply notice. But Valliammai is very much alive and she has to say about the
genuineness of Ex.A9 and A10, legal notice and reply notice.
18. The plaintiff appears to have produced a patta of the year 2010 for a
property which is said to have been acquired by him in the year 2009
through Ex.A5. So the case of the plaintiff is also in support by
preponderance as he did not produce any document subsequent to the year
1979 till the year 2010, to show that patta has been transferred in his name.
Some of the tax receipts did not contain any date and they have been simply
marked as Exs.A6 to A8. Irrespective of the validity of Ex.A2, the
deficiencies in the case of the plaintiff would only show that Valliammai is
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still holding a possession over the suit property. It was Agilandammal who is
said to have been in the 10th Item of house property and the house receipts
have been produced from the year 1979 to 1993. The plaintiff without
establishing the fact that he is in joint possession of the suit properties, had
chosen to take advantage of Section 37(2) of the Tamil Nadu Court Fee and
Suits Valuation Act, and paid the Court fee under the said provision. The
Courts below had ignored all the above fact also.
19. The plaintiff has further claimed that he has half share in Items 10 and 11
which were sold by the defendants 3 and 4 in favour of the first defendant
and the first defendant is in enjoyment of the same by having entered into the
property on 01.07.2002. The plaintiff's own pleading would prove that he is
not in the enjoyment of the above Items and that the first defendant is in
enjoyment of the same but that was also overlooked by the trial Court by
taking it slightly.
20. The plaintiff has not sought the relief to declare the sale deed in favour
of the first defendant dated 02.05.2002 and the sale deed in favour of the
second defendant on 02.03.1993 are void as against the half share claimed
by him. On an improper suit filed by the plaintiff without adding necessary
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party namely Valliammai who still holds the life interest over the suit
property and by not getting her account about the title of the suit properties
atleast by examining as a witness, the trial Court has chosen to decree the
suit and the first appellate Court also did not deal with the grounds of the
appeal in a proper manner and has misdirected itself by taking deviance in
the appreciation of evidence.
21. As the essential legal points raised by the appellant / first defendant in
the second appeal have been omitted to be dealt by the Courts below and on
the context of facts pleaded and admitted by the plaintiff, the second appeal
deserves to be allowed. In view of the discussions made above, the
substantial questions of law are answered in favour of the appellant /
first defendant.
22. In the result, the Second Appeal is allowed and the judgment and decree
dated 29.03.2024 passed in A.S.No.92/2011 on the file of the Sub Court,
Kallakurichi, is hereby set aside and the suit in O.S.No.454/2004 on the file
of the Principal District Munsif's Court, Kallakurichi, is dismissed. No costs.
Connected miscellaneous petition is closed.
19.03.2025
Index:Yes/No
Speaking Order / Non-speaking order
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Neutral Citation Case : Yes / No
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To:
1. The Sub-Court, Kallakurichi.
2. The Principal District Munsif, Kallakurichi.
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R.N.MANJULA, J.
bkn
Pre-delivery judgment made in
19.03.2025
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