Madras High Court
Karuppanan vs Raju (Deceased) on 12 November, 2025
S.A.Nos.713 & 714 of 2000
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.11.2025
CORAM:
THE HON'BLE MR.JUSTICE V.LAKSHMINARAYANAN
S.A.Nos.713 & 714 of 2000
In S.A.No.713 of 2000
1.Karuppanan
2.Ramathal (died)
3.Kamalam
4.Sellammal
5.Renganathan ... Appellants
(Appellants 1 & 3 to 5 are
brought on record as legal
representatives of the deceased
second appellant vide order dated
16.07.2009 made in CMP.No.697
of 2009)
Vs.
1.Raju (Deceased)
2.Mani (Deceased)
3.Karuppa Navithan
4.Kala (Deceased)
5.Elango
6.Kavitha
7.Sudha
(R4 to R7 brought on record as
LRs of the deceased R1 vide order
of this Court dated 18.09.2018
made in CMP.Nos.698 to 700 of
2009 in S.A.No.713 of 2000)
8.Vasanthi
9.Sankar
10.Nandhini
(R11 to R13 brought on record as
LRs of the deceased R2 vide order
of this Court order dated
19.11.2021 made in
CMP.Nos.3094, 3096 & 3097 of
2021 in S.A.No.713 of 2000)
... Respondents
1/31
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S.A.Nos.713 & 714 of 2000
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgement and decree of the learned II Additional
District Judge, Erode in A.S.No.228 of 1998 dated 29.06.1999 preferred
against the Judgment and Decree of the learned District Munsif cum
Judicial Magistrate, Perundurai in O.S.No.197 of 1996 dated 15.09.1998.
For Appellants : Mr.A.K.Kumarasamy,
Senior Counsel for
Mr.S.Kaithamalai Kumaran
For Respondents
5 to 10 : Mr.N.Manoharan
R1, R2 & R4 – Died
R3 - Given up
In S.A.No.714 of 2000
1.Karuppanan
2.Ramathal (died)
3.Kamalam
4.Sellammal
5.Renganathan ... Appellants
(Appellants 1 & 3 to 5 are
brought on record as legal
representatives of the deceased
second appellant vide order dated
16.07.2009 made in CMP.No.701
of 2009)
Vs.
1.Raju (Deceased)
2.Mani (Deceased)
3.Karuppa Navithan
4.Karunaiammal
5.Singaram
6.Rakki
7.Kala
8.Elango
9.Kavitha
10.Sudha
(R7 to R10 brought on record as
2/31
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S.A.Nos.713 & 714 of 2000
LRs of the deceased R1 vide order
of this Court dated 18.09.2018
made in CMP.Nos.702 to 704 of
2009 in S.A.No.714 of 2000)
11.Vasanthi
12.Sankar
13.Nandhini
(R11 to R13 brought on record as
LRs of the deceased R2 vide order
of this Court order dated
22.06.2023 made in
CMP.Nos.21158, 21161 & 21164
of 2021 in S.A.No.714 of 2000)
... Respondents
PRAYER: Second Appeal filed under Section 100 of Code of Civil
Procedure against the judgement and decree of the learned II Additional
District Judge, Erode in A.S.No.227 of 1998 dated 29.06.1999 preferred
against the Judgment and Decree of the learned District Munsif cum
Judicial Magistrate, Perundurai in O.S.No.187 of 1995 dated 15.09.1998
For Appellants : Mr.B.Kumarasamy,
Senior Counsel for
Mr.Ruban
For Respondents
8 to 13 : Mr.N.Manoharan
R1, R2, R5 & R7 – Died
R3 & R4 - Given up
R6 – No appearance
COMMON JUDGMENT
These second appeals arise out of the common judgment passed
by the learned II Additional District Judge at Erode in A.S.Nos.227 & 228
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S.A.Nos.713 & 714 of 2000
of 1998 dated 29.06.1999, in reversing the judgment and decree of the
Court of District Munsif cum Judicial Magistrate at Perundurai in
O.S.No.187 of 1995 and O.S.No.197 of 1996 dated 15.09.1998.
2. For the sake of convenience, the parties shall be referred to as
per their ranks in the suit in O.S.No.197 of 1996.
3. O.S.No.197 of 1996 is a suit for partition. It was originally
presented as O.S.No.349 of 1992, on the file of the Sub Court at Erode.
Initially, it was decreed declaring the plaintiffs' 2/6th share. Aggreived by
the same, the defendants 2 and 3 preferred an appeal. The appeal was
allowed and the matter was remanded to the trial court for fresh
consideration. Thereafter, the defendants 2 and 3 as plaintiffs, presented
O.S.No.1568 of 1994 before the District Munsif Court at Erode. In this
suit, the defendants 2 to 3, as plaintifffs, sought for a declaration that
they are the absolute owners of the property, and also sought for
permanent injunction restraining the defendants therein, from interfering
with their peaceful possession and enjoyment of the property.
Subsequently, both the suits were transferred to the file of the learned
District Munsif cum Judicial Magistrate at Perundurai for disposal and
renumbered as O.S.No.197 of 1996 and O.S.No.187 of 1995.
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The facts leading to the appeal
4. It was the case of the plaintiffs that the suit schedule
mentioned property belonged to one, Rama Navithan. The property was
his ancestral property. Rama Navithan had two sons, namely, Karuppa
Navithan and Chinna Karuppan. Plaintiffs are the sons of Karuppa
Navithan, the first defendant. On the death of Rama Navithan, Karuppa
Navithan and Chinna Karuppan succeeded to the estate. Chinna
Karuppan sold his half share in the suit property in favour of
Karuppannan, the second defendant. The plaintiffs claimed that, the suit
property being a coparcenary property, and as they are the sons of
Karuppa Navithan, they are entitled to 2/6th share of the suit properties
in common. The plaintiffs further alleged that the first defendant, their
father, had left the family in and about 1969 and had gone to Mysore for
eking out his livelihood, leaving the plaintiffs and their mother in lurch. It
was only recently, the first defendant had returned to his native village.
They alleged that for the sake of convenient enjoyment, they were in
possession of the eastern portion of the suit property, while the
purchaser, second defendant, was in enjoyment of the western portion.
The third defendant is the wife of the second defendant. She claimed that
the property came to her through her father, one Muthusamy Gounder.
They alleged that the third defendant is not in peaceful possession and
enjoyment of the property and that she is an utter stranger to the family.
As they found it inconvenient to enjoy the properties in common, and
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S.A.Nos.713 & 714 of 2000
since the second defendant was not amenable to an amicable partition
outside the Court, they came forth with the suit in O.S.No.197 of 1996.
5. Summons were served on the defendants. The first
defendant, Karuppa Navithan remained exparte. The second defendant
filed a written statement, which was adopted by the third defendant.
6. In the said statement, the second defendant conceded the fact
that Karuppa Navithan and Chinna Karuppan were entitled to equal
moieties. However, it was denied that the joint title and possession of the
brothers continued till the date of presentation of the plaint. They denied
that the first defendant had abandoned his family to go to Mysore. It was
asserted that, at all material times. the first defendant and the plaintiffs
lived as one joint family.
7. On the aspect of partition, they pleaded that the plaintiffs
have suppressed material facts. They pleaded that on 08.06.1963,
Karuppa Navithan for himself and as guardian for the first plaintiff (as he
was a minor then), mortgaged 1/2 share of the suit property in favour of
the second defendant for Rs.700/-. Subsequently, the first defendant
borrowed a sum of Rs.500/- evidenced by a promissory note dated
10.08.1968. As the amounts were not returned, the second defendant
presented O.S.No.1789 of 1971 on the file of the learned District Munsif
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S.A.Nos.713 & 714 of 2000
at Erode on the foot of the promissory note. The suit came to be decreed
and as the first defendant did not honour the decree, the second
defendant filed EPR.No.98 of 1972 and brought the 1/2 share that
belonged to the first defendant for sale.
8. It was pleaded that the 1/2 share referable to the branch of
the first defendant included the shares of his minor sons, namely, the
plaintiffs herein. They also pleaded that the shares of the sons are liable
and answerable even for the personal debts of their father, the first
defendant.
9. It was further pleaded that in the sale held on 23.08.1972,
1/2 the share belonging to the first defendant's family was sold. It was
purchased by Muthusamy Gounder for a sum of Rs.605/-. The sale was
subject to the mortgage dated 08.06.1963. The sale held on 23.08.1972
was confirmed by the court on 26.09.1972. A Sale Certificate was also
issued on the same day.
10. They further alleged that the court auction purchaser took
out an application in E.A.No.2633 of 1972 and obtained possession of the
property on 20.01.1973. The delivery so taken was also delivered on
24.01.1973. Therefore, they pleaded that on and from 23.08.1972, neither
the first defendant, nor the plaintiffs have any manner of right, title or
interest in and over the suit property.
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11. The written statement further added that the court auction
purchaser Muthusamy Gounder, was the father-in-law of the second
defendant and the father of the third defendant. After the lifetime of
Muthusamy Gounder, the property devolved on to his legal heirs. The
other legal heirs of Muthusamy Gounder executed a release date
relinquishing their rights in favour of the third defendant on 12.05.1992.
Hence, the second defendant asserted that the third defendant is not a
stranger to the property, but a lawful owner of one 1/2 share referable to
the branch of the first defendant. They also added that the plaintiffs are
not entitled to ignore the court auction proceedings in E.P.R.No.98 of
1972 in O.S.No.1789 of 1971 on the file of the learend District Munsif at
Erode, and since the sale had not been set aside, the plaintiffs are not
entitled to any relief.
12. On being served with the written statement, the plaintiffs
filed a reply statement. In their reply, they took a plea that, as the court
auction purchaser had not filed a suit for partition and taken possession
of half share in the suit property within 12 years, he had lost his right to
possession of the suit properties. They further pleaded that the plaintiffs,
by virtue of their long, uninterrupted, continuous and hostile posssession
of the property, have perfected their title by adverse possesssion. In
passing, they also attacked the validity of the release deed dated
12.05.1992 in favour of the third defendant.
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S.A.Nos.713 & 714 of 2000
13. The defendants filed an additional written statement to the
reply statement denying the plea of adverse possession taken by the
plaintiffs. They reiterated their contention that the plaintiffs ought to have
filed a suit to set aside the court auction sale within 12 years from the
date of auction, and the suit filed for partition ignoring the court auction
sale, is not maintainable.
14. The defendants 2 and 3 to the first suit, on more or less the
same pleas as taken in the written statement filed in the first suit, filed
O.S.No.187 of 1995. In this suit, they pleaded that, as the defendents
attempted to trespass into the property, they were constrained to present
the suit for declaration of title, that the entire suit property is the absolute
property of the plaintiffs therein, and also sought for permanent
injunction.
15. O.S.No.187 of 1995, summons were served on the
defendants. Karuppa Navithan was arrayed as the first defendant. The
plaintiffs in O.S.No.197 of 1996 (Previously O.S.No.349 of 1992 on the file
of the Sub Court at Erode), were arrayed as defendants 2 and 3. The 4th
defendant is the daughter of Karuppa Navithan, and the sister of the
defendants 2 and 3. The defendants 5 and 6 were alleged to be strong
men in the locality, who were assisting the attempts for illegal trespass.
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16. In this suit, only defendants 2 and 3, who are the plaintiffs
in the first suit, filed their written statement. Karuppa Navithan, his
daughter, and their alleged assistants remained exparte in this suit too.
17. On the basis of these pleadings, the trial court framed the
following issues and additional issues in O.S.No.197 of 1996:
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S.A.Nos.713 & 714 of 2000
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18. The partition suit in O.S.No.197 of 1996 was taken as the
lead case. On the side of the plaintiffs, the second plaintiff, Mani
examined himself as PW1. He marked Ex.A1 to Ex.A12. On the side of the
defendants, the second defendant examined himself as DW1 and in
addition, they examined three other witnesses as DW2 to DW4. The
defendants exhibited Ex.B1 to Ex.B23.
19. As already pointed out, initially the suit was decreed and on
appeal, the suit was set aside and remanded. At the time of remand, the
appellate court directed the trial court to frame an issue on adverse
possession and answer the same.
20. On remand, the learned Trial Judge came to a conclusion
that, since the first defendant does not dispute the debts owed to the
second defendant, the plaintiffs, being his sons, are bound by the
judgement and decree passed in O.S.No.1789 of 1971. It further held
that, as the properties had been sold in court auction sale to the deceased
Muthusamy Gounder, the plaintiffs are not entitled to challenge the same.
It further held that, the plaintiffs have not let in any proof to show that
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they are in joint possession of the property after the court auction sale in
favour of the third defendant. It also held that, as there is no prayer to set
aside the court auction sale, the suit for simplicitor partition is not
maintainable. It rejected the plea of adverse possession. Consequently, it
dismissed O.S.No.197 of 1996 and decreed O.S.No.187 of 1995 with cost.
21. On the decrees being carried in appeal, the learned II
Additional District Judge at Erode held that the sale certificate and
delivery attachi show that the court auction purchaser, Muthusamy
Gounder, had taken only symbolic possession of the property and not
actual delivery. As the court auction purchaser, Muthusamy Gounder had
not filed a suit for partition within 12 years, he lost his right to the suit
property by adverse possession. This is because there can be no actual
delivery, in purchase of an undivided interest in a joint family property.
Therefore, it observed that since Muthusamy Gounder had taken only the
symbolic delivery from the Court, he cannot be in joint possession with
the other coparceners. It found that the second defendant, having
purchased the property from Chinna Karuppan, is entitled to one 1/2
share of the property. Consequently, it allowed both the appeals and
decreed O.S.No.197 of 1996 and dismissed the suit in O.S.No.187 of
1995. Against the reversal of judgements, the present second appeals.
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22. This court admitted both the second appeals on 25.09.2003,
and framed the following substantial questions of law:
"i) Whether the lower appellate court is
justified in holding that plaintiffs are entitled to get a
decree on the basis of adverse possession overlooking
that no plea of adverse possession raised and proved by
the plaintiffs?
ii) When the suit is laid for partition on the
basis that plaintiffs are coparceners of a joint family, is it
open to them to raise the plea of adverse possession as
they could not have the necessary animus to prescribe
title?"
23. I heard the matter in part on 23.09.2025 and 24.09.2025
and adjourned the matter to the next day, i.e., on 25.09.2025.
24. I framed the following additional substantial questions of
law:
(i) Are not the sons' shares answerable to the
debts of the father, including personal debts?
(ii) When the properties of the father had
admittedly been sold in court auction sale held in
E.P.R.No.98 of 1972 in O.S.No.1789 of 1971 on the file of
the District Munsif Court at Erode, do the plaintiffs in
O.S.No.197 of 1996 have a cause of action to maintain a
suit for partition?
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25. For the sake of convenience, all the substantial questions of
law are taken up together and answered in this judgement.
26. I brought to the attention of Mr.N.Manoharan, the
judgements of the Privy Council on the aforesaid points in Girdharee
Lall v. Kantoo Lall, (1873-74) 1 Indian Appeals 321, and Mussamut
Nanomi Babuasin v. Modun Mohun, (1885-86) l3 Indian Appeal 1 and
requested the counsel to answer on the additional questions of law that
have been framed.
27. Mr.N.Manoharan has been extremely fair to the court in
bringing to my notice several judgements of the Supreme Court, which
have taken a view that the shares of the sons in the ancestral property is
answerable to the debts of the father, even if they are personal debts,
unless and until, the debts are tainted with immorality. The stand taken
by Mr.N.Manoharan is much appreciated.
28. It is not in dispute that the properties are ancestral in
character. The relationship between the parties is also not in dispute. The
genealogical tree of the parties are hereunder:
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S.A.Nos.713 & 714 of 2000
Ram Navithan
| (Sons)
_________________________________________________________________
| |
st
Karuppa Navithan (1 Defendant) Chinna Karuppannan
|(sons) |(Court Sale) |
______|________ | |
| | | Karuppannan
Raju Mani | (Purchaser)
(1st Plaintiff) (2nd Plaintiff)| (2nd Defendant)
|
Muthusamy Gounder (Auction Purchaser)
| (Daughter)
Ramathal - (3rd Defendant)
(Wife of 2nd Defendant)
29. The relationship between the parties, nature of the property,
the purchase of the share of the Chinna Karuppannan first defendant by
the second defendant, and the auction that had been held for sale of the
first defendant's property, are not in dispute.
30. On the date of sale in 1968, the first and second plaintiffs
would have been minors, approximately aged about 4 and 6 years. The
factum of the mortgage executed by the first defendant in favour of the
second defendant is clear from Ex.B17. This is a mortgage deed dated
08.06.1963. Ex.B1 is an execution petition filed in E.P.R.No.98 of 1972 in
O.S.No.1789 of 1971. Ex.B3, Ex.B4, Ex.B6, Ex.B7 and Ex.B8 would point
out that the property of the first defendant had been brought for auction,
and symbolic possession had been taken by Muthusamy Gounder of the
undivided half share of the first defendant in the suit property. The
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relationship between Muthusamy Gounder and the third defendant is not
in dispute. Ex.B9 had been produced to substantiate the release deed
made by the other legal heirs of Muthuswamy Gounder, in her favour.
31. It is the fundamental principle of civil law that where there
is a right, certainly, there is a remedy. This is the literal translation of the
Latin maxim 'ubi jus ibi remedium'. The plaintiffs would have to show that
despite the court auction sale, their right to the property continued and
hence, they are entitled to seek for partition. It is here that I would refer
to the authorities cited above.
Discussion of Authorities
32. First of the judgements, I have to refer to is a classic
judgement in Hunooman Persaud Panday v. Mussumat Babooee
Munraj Koonweree, (1854-57) 6 Moo IA 393. Lord Justice Knight Bruce,
speaking for the Board, held as follows:
"though an estate be ancestral, it may be
charged for some purposes against the heir, for the
father's debt, by the father, as, indeed, the case above
cited from the 6th volume of the Decisions of the Sudder
Dewanny Adawlut, North-Western Provinces,
incidentally shows. Unless the debt was of such a
nature that it was not the duty of the son to pay it, the
discharge of it, even though it affected ancestral estate,
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would still be an act of pious duty in the son. By the
Hindu law, the freedom of the son from the obligation to
discharge the father's debt, has respect to the nature of
the debt, and not to the nature of the estate, whether
ancestral or acquired by the creator of the debt."
33. This judgement settled the position of Hindu law on the
pious obligation of a son to pay his father's debt. The position laid down
in this case was confirmed in Girdharee Lall's case, and by the Privy
Council in Mussamut Nanomi Babuasin's case. Hunooman Persuad
Panday's case also found affirmation by another Privy Council Bench in
Kantoo Lall v. Muddun Thakur, MANU/PR/0027/1874.
34. Post independence, the Supreme Court had an occasion to
consider the issue as to the liability of the son with respect to the debts of
father, even post partition. Answering the liability to be in the affirmative,
the Supreme Court in Pannalal v. Naraini, (1952) 1 SCC 300 held that
the sons are liable to pay pre-partition debts of the father, even after
partition, unless there was an arrangement for payment of the debts of
the father, at the time when partition took place or if the debt was
conceived by immoral or illegal means. For ready reference, the relevant
portion is extracted here:
"13. It can now be taken to be fairly well settled
that the pious liability of the son to pay the debts of his
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father exists whether the father is alive or dead. [Brij
Narain v. Mangla Prasad, (1923-24) 51 IA 129 : 1923
SCC OnLine PC 49] Thus, it is open to the father, during
his lifetime, to effect a transfer of any joint family property
including the interests of his sons in the same to pay off
an antecedent debt not incurred for family necessity or
benefit, provided it is not tainted with immorality. It is
equally open to the creditor to obtain a decree against the
father and in execution of the same put up to sale not
merely the father's but also the son's interest in the joint
estate. The creditor can make the sons parties to such suit
and obtain an adjudication from the court that the debt
was a proper debt payable by the sons. But even if the
sons are not made parties, they cannot resist the sale
unless they succeed in establishing that the debts were
contracted for immoral purposes."
35. Soon thereafter, in Sidheshwar Mukherjee v.
Bhubneshwar Prasad Narain Singh, (1953) 2 SCC 265 another three
Judge bench of the Supreme Court, while approving the view taken in
Pannalal's case cited above, held that in a suit filed by the creditor
against a father, the sons are not even necessary parties. It observed that
if the creditor's right are deemed to be based exclusively upon the father's
power of disposition over the son's interest, such right must necessarily
come to an end once the father passes away, or it results in a partition
between him and his son. It cannot be said as an absolute rule that a
creditor's right to recover a debt from the son's share in the joint family
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property is co-extensive with the father's power of disposal over such
interest. The only exception when the son was not held liable for the debt
is when the debt is tainted with immorality. Having come to this
conclusion, the Supreme Court approved the view of the Board in
Mussamut Nanomi Babuasin's case. The law laid down by the court is
as follows:
"11. Holding, as we do, that the sons were
liable in this case to discharge the decretal debt due by
their father, the further question arises as to how this
liability could be enforced? Could the interest of the sons
in the joint property be attached and sold without making
the sons parties to the suit and the execution proceedings?
The point does not seem to us to present much difficulty.
Strictly speaking, the sons could not be said to be
necessary parties to the money suit which was instituted
by the creditor against the father on the basis of a
promissory note. If a decree was passed against the
father and the sons jointly, the latter would have been
personally liable for the debt and the decree could have
been executed against their separate or personal property
as well. No doubt the sons could have been made parties
to the suit in order that the question of their liability for the
debts of their father might be decided in their presence. Be
that as it may, the money decree passed against the
father certainly created a debt payable by him. If the debt
was not tainted with immorality, it was open to the
creditor to realise the dues by attachment and sale
of the sons' coparcenary interest in the joint
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property on the principles discussed above."
36. The Supreme Court in another three Judge bench in Faqir
Chand v. Sardarni Harnam Kaur, (1967) 1 SCR 68, after surveying of
all the authorities, approved the view of the Privy Council in Suraj Bunsi
Koer v. Sheo Prashad Singh [(1878) ILR 5 Cal 148 (PC) which held as
follows:
"That where joint ancestral property has passed
out of a joint family either under a conveyance executed
by a father in consideration of an antecedent debt, or in
order to raise money to pay off an antecedent debt, or
under a sale in execution of a decree for the father's debt,
his sons, by reason of their duty to pay their father's
debts, cannot recover that property, unless they shew that
the debts were contracted for immoral purposes, and that
the purchasers had notice that they were so contracted.”
37. I need not add to the authorities except to point out that this
view has been followed by the Supreme Court in:-
(i) Anthonyswamy v. M.R.Chinnaswamy Koundan by Lrs.
(1969) 3 SCC 15;
(ii) Venkatesh Dhonddev Deshpande v. Sou. Kusum
Dattatraya Kulkarni and Others, (1979) 1 SCC 98;
(iii) Prasad and Others v. V.Govindaswamy Mudaliar and
Others, (1982) 1 SCC 185; and
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S.A.Nos.713 & 714 of 2000
(iv) Manibhai and Others v. Hemraj and Others, (1990) 3
SCC 68.
and by this court in Gubbala Suryanarayana (minor) and another v.
Gadiyapu Ganesulu and another, AIR (1954) Mad 203.
38. The aforesaid position make it clear that the sale of the
property of the first defendant in a court auction sale for his antecedent
debts binds not only his share, but also the shares of the plaintiffs. If
their right to the property had been sold in the court auction sale and
purchased by Muthusamy Gounder, the property was no more available
for partition by way of a decree. Whatever right the minors had, stood
extinguished with the sale that had been held pursuant to E.P.R.No.98 of
1972. Hence, the suit property was not available for partition and
consequently, the plaintiffs did not have a right in the suit property on the
date of presentation of the suit.
39. Now turning to the next issue, I have to point out that a
minor would have to seek to set aside the court auction sale, before suing
for partition. The suit presented by the plaintiffs, was one for a bare
partition. No relief was sought to set aside the sale that had been held by
the court. Unless and until the sale had been set aside, the property is
not available for partition. This is because, the sale having been executed
in favour of the auction purchaser, Muthusamy Gounder, whatever right,
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S.A.Nos.713 & 714 of 2000
title, or interest that was available with Karuppa Navithan's family, stood
transferred to Muthusamy Gounder. I should add here that there is no
warranty of title in a court auction sale. The court only brings the interest
of the judgement debtor for sale.
40. When a property has been sold for the debts of the father,
the Hindu law, prior to the amendment of Section 6 of the Hindu
Succession Act, placed an obligation on the sons to answer the debts.
This position has already been settled by a catena of judgements set forth
above. If the minors have to reach out to the property and claim partition,
then they should have sought for a declaration that the court auction sale
was invalid. They, not having sought for the said relief, are not entitled to
seek for partition. This is because as long as the court auction sale
stands, the plaintiffs do not get the right over the same, as the property
ceases to form part of the joint family estate, and the right to claim
partition does not survive. The least that Mr.N.Manoharan's client ought
to have sought was a declaration that the court auction sale is invalid, or
non est, or illegal, or at the very least, that the court auction sale is not
binding on them. Without seeking for any of the aforesaid reliefs, a suit
for mere partition cannot be maintainable with respect to the property
covered by court auction sale. When this aspect was pointed out,
Mr.N.Manoharan referred to a judgement of Supreme Court in Umadevi
Nambiar v. Thamarasseri Roman Catholic Diocese, (2022) 7 SCC 90.
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S.A.Nos.713 & 714 of 2000
He referred to paragraph No.15 of the said judgement in order to
substantiate his case.
41. A careful perusal of the judgement shows that the
conclusion in paragraph 15 was arrived at due to a peculiar circumstance
of that case. The facts would show that the appellant before the Supreme
Court and her sister, one Ranee, got the property on account of intestate
succession of their father. The appellant had executed a power of attorney
in favour of her sister in 1971. She cancelled the power of attorney on
31.01.1985. In the mean time, the power agent, her sister, alienated the
property in favour of third parties. She filed a suit and obtained a
preliminary decree. It was then she came to know that the beneficiaries
from her sister had sold the property in favour of the respondent before
the Supreme Court. Hence, she filed a suit for partition and separate
possession of her share in the suit property. The Supreme Court came to
a conclusion that the power of attorney executed by the appellant in
favour of her sister, had given the power only to lease out the property,
and there had been no authorization empowering the agent to sell the
property. The Supreme Court came to the conclusion that as the power of
attorney did not contain the clause authorising the agent to sell the
property, any alienation made by her is invalid and because no one can
confer a better title than what he has himself.
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S.A.Nos.713 & 714 of 2000
42. In fact, more than a century earlier, a similar view has been
expressed by this court in Unni v. Kunchi Amma, ILR (1891) 14 Mad
26. This Court held as follows:
"If a person not having authority to execute a
deed, or having such authority under certain
circumstances which did not exist, executes a deed, it is
not necessary for persons who are not bound by it to sue
to set it aside, for it cannot be used against them. They
may treat it as non-existent and sue for their right as if it
did not exist."
The same principle had been approved by the Board of the Privy Council
in Bijoy Gopal Mukerji v. Krishna Mahishi Debi, (1907) 17 MLJ 1454.
43. The view of Unni's case, also found acceptance in the recent
Supreme Court case in Hussain Ahmed Choudhury v. Habibur
Rahman, 2025 SCC Online SC 892.
44. The aforesaid authorities cannot be applied to the facts of
the present case because, as already concluded, in a sale for the
antecedent debt of the father, the share of the son can also be sold,
unless and until it is shown that the debt was for immoral purpose. The
plaintiffs should have pleaded that the debt incurred by the first
defendant in favour of the second defendant was for immoral purpose and
therefore, not binding on them. The plaintiffs cannot seek for partition,
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S.A.Nos.713 & 714 of 2000
without challenging the obstacles in form of the court auction sale. That
not having been done, even on that ground, the plaintiffs are not entitled
to succeed.
45. The Court has to look at the jural bias underlying such
transaction. If this court were to look at the real nature of the suit and
decide what the plaintiffs are asking for, they are asking for possession of
their shares in the estate to be calculated, after the court auction sale is
set aside. In effect, the plaintiffs are asking the alienation made through
court be set aside, and be placed in possession of the share of the
properties alienated. For this purpose, they necessarily would have to sue
for declaration that a court auction sale is not binding on them. That not
having been done, the suit necessarily has to fail.
46. The principle of law being that if a minor's share in a joint
family property has been sold in an execution of a decree against the
father, the minor cannot sue for parititon, including the property sold,
without first impeaching the sale. It is not open to the minors to ignore
the sale.
Adverse Possession
47. Insofar as the plea of adverse possession is concerned, the
plaintiffs have not shown open, hostile, and continuous possession of the
property, post the auction sale. PW1 - the second plaintiff alone was
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S.A.Nos.713 & 714 of 2000
examined in the witness box. On the date of sale, PW1 would have been a
toddler aged about 4 years. He cannot speak about what transpired when
he was minor.
48. It is the fundamental principle of law, that to prove title by
adverse possession, the plaintiffs must show open, hostile and
continuous possession of the property. The documents produced by the
plaintiffs do not point out hostility or openness, much less continuity of
possession. Even if one of the aforesaid factors is not proved, the plea of
adverse possession would have to fail. In fact, the documents under
Ex.A4 to Ex.A10 point out that all of them had come into being, a couple
of months before the presentation of the plaint. Ex.A5, Ex.A6 and Ex.A7
were all revenue records issued for Fasli 1395 to 1397. They have been
issued on the same day. The plaintiffs seemed to have procured the
revenue records for Fasli 1395 to 1400 in September 1992. The suit itself
came to be filed on 18.6.1992. Post litem motam documents cannot be
relied upon for the purpose of plea of adverse possession. To make it
abundantly clear, the revenue records produced by the plaintiffs have
come into being, three months after the suit had been filed. Hence, this
plea necessarily has to fail.
49. Insofar as the suit presented by the defendants 2 and 3 is
concerned, the purchase of half share by the second defendant from
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S.A.Nos.713 & 714 of 2000
Chinna Karuppan is not in dispute. Similarly, the court auction sale in
E.P.R.No.98 of 1972 in O.S.1789 of 1971 which transferred the half share
that fell to the share of the first defendant and his sons in favour of
Muthusamy Gounder, is also not in dispute. Muthusamy Gounder's legal
heirs have executed a release deed in favour of the third defendant.
Hence, she became the owner of another half share of the suit property.
50. The view of the lower appellate court that Muthusamy
Gounder should have to file a suit for parition as against his son-in-law is
absolutely perverse. The share of the first defendant stood transferred by
the court auction sale and being the sons of the first defendant, the
plaitniffs are equally answerable to the debts of their father. This deals
with one 1/2 of the share, and the other 1/2 share obviously vests with
the second defendant. Unless and until, the title was divested from the
court auction purchaser Muthusamy Gounder, and re-vested in the
plaintiffs' family, they do not have right, title, or interest over the same.
51. When the owners of the property, namely, Muthusamy
Gounder and his son-in-law, the second defendant, were not inclined to
file a suit for partition, the view of the lower appellate court that only after
filing a suit for partition does Muthusamy Gounder get titl,e is erroneous.
In this regard, the view taken by the learned Trial Judge is in accordance
with law.
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S.A.Nos.713 & 714 of 2000
52. As the title to the property vested in both the defendants 2
and 3, by two independent alienations, namely, the sale by Chinna
Karuppan in favour of the second defendant, and the court auction sale,
together with the release deed by Muthusamy Gounder's children in
favour of the third defendant, respectively, the suit for title necessarily
has to be decreed.
53. Hence, the substantial questions of law are answered on the
following terms:
(i) The plaintiffs did not have right in the property after the court
auction sale in E.P.R.No.98 of 1972 in O.S.No.1789 of 1971 on the file of
District Munsif Court at Erode.
(ii) The plaintiffs are not entitled to maintain a suit for partition
without first seeking to set aside the sale executed in favour of
Muthusamy Gounder, the court auction purchaser.
(iii) The plaintiffs have failed to prove that they have their right
over the property by adverse possession.
(iv) Having come forth with a suit for partition, the plaintiffs are
not entitled to the plea of adverse possession.
(v) The view of the learned first Appellate Judge that the court
auction purchaser had lost his right and therefore, the plaintiffs had
gotten their rights restored is baseless, as well as legally and factually
incorrect and hence, perverse.
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S.A.Nos.713 & 714 of 2000
54. In fine, the substantial questions of law are answered in
favour of the appellant and against the plaintiffs.
55. S.A.No.714 of 2000 is allowed and the judgement and decree
in A.S.No.227 of 1998 dated 29.06.1999 is set aside. The judgement and
decree of the learned District Munsif at Perundurai in O.S.No.187 of 1995
dated 15.09.1998 stands restored and the suit is decreed as prayed for.
56. S.A.No.713 of 2000 is allowed. The judgement and decree in
A.S.228 of 1998 dated 29.06.1999 is set aside. The judgement in
O.S.No.197 of 1996 dated 15.09.1998 stands restored. The suit stands
dismissed.
57. On account of the fair submissions made by
Mr.N.Manoharan, I am not inclined to impose cost on the plaintiffs in the
Second Appeals. However, the defendants 1 and 2 are entitled to costs in
the suits, as well as in the Appeal suits.
12.11.2025
nl
Index : Yes/No
Speaking order/Non-speaking order
Neutral Citation : Yes/No
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S.A.Nos.713 & 714 of 2000
To
1.The II Additional District Judge, Erode
2.The District Munsif cum Judicial Magistrate, Perundurai
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S.A.Nos.713 & 714 of 2000
V.LAKSHMINARAYANAN, J.
nl
S.A.Nos.713 & 714 of 2000
12.11.2025
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