S.Gnanambal v. R.Govindaraj
IN THE HIGH COURT OF JUDICATURE AT MADRAS
( Civil Appellate Jurisdiction ) Thursday, the Twenty Second day of July Two Thousand Twenty One PRESENT THE HON`BLE MR.JUSTICE M.SUNDAR CMP.No.22155 of 2019 in SA.NO.1026 of 2019 S.GNANAMBAL [ PETITIONER ] Vs R.GOVINDARAJ [ RESPONDENT ] Petition praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to stay the decree and judgment dated 12-06-2019 in AS NO.22 of 2016 on the file of Principal District Judge, Tiruvannamalai Tiruvannamalai District confirming the decree and judgment dated 29-02-2016 in OS.NO.3 of 2013 on the file of Principal Subordinate Judge, Sub Court, Tiruvannamalai, Tiruvannamalai District(in CMP.No.22155/2019)pending disposal of the SA.NO.
1026/2019 Order : This petition coming on for orders upon perusing the petition and the affidavit filed in support thereof and upon hearing the arguments of M/S.R.RAJARAJAN, Advocate for the petitioner and of MS.A.DHANWANTHI, ADVOCATE for MR.K.
'Mr.R.Rajarajan, learned counsel on record for appellant and Ms.A.Dhanwanthi, learned counsel representing the counsel on record for lone respondent are before this Virtual Court.
2. Case file placed before this Court brings to light that captioned second appeal has been admitted by Hon'ble predecessor judge on 17.10.2019.
3. Suit in the trial Court is primarily for declaring as void and not binding on the plaintiff a settlement deed dated 10.06.2007 executed by defendant's husband in her favour. After full contest, suit was decreed by the trial Court in and by judgment and decree
dated 29.02.2016. The defendant carried it in appeal by way of a regular first appeal under Section 96 of 'The Code of Civil Procedure, 1908' ('CPC' for the sake of brevity) and the first appeal also came to be dismissed by the first Appellate Court by judgment and decree dated 12.06.2019 confirming the decree of the trial Court. Thus, the defendant is before this second appeal Court.
4. The admission proceedings/orders of Hon'ble predecessor judge dated 17.10.2019 reads as follows: 'Learned counsel for the appellant/defendant has submitted that the respondent herein had filed a suit stating that the appellant's husband had executed the settlement deed dated 10.06.2007 in favour of the appellant with a view to defraud the creditors, but he has not added the appellant's husband as defendant in the suit. He further submitted that the respondent has also taken a plea that since the suit property is the coparcenery property, without the consent of other co-parceners, the husband of the appellant had executed the settlement deed in favour of the appellant and on that ground also, the said settlement is void, but the respondent being a stranger, he cannot raise the said point.
He further submitted that even though in the plaint, the respondent has stated that the settlement deed was executed on 10.06.2007, he has filed the suit only in the year 2013. He further submitted that as per Section 53 of the Transfer of Property Act, any transfer made with a view to defeat the right of the creditors, the said transfer is a voidable one and in such a case, the suit has to be filed within three years from the date of transfer, but in this case, the suit was filed after six years and on that ground also, the suit is liable to be dismissed. But the courts below erroneously upheld the claim of the respondent/plaintiff and therefore, the substantial questions of law have arisen in this case.
2. Considering the aforesaid submission and also perusing the judgments of the courts below and appeal memorandum, this second appeal is admitted.
3. The following substantial questions of law are formulated:
''i) Is not the first appellate court wrong in law by confirming the decree and judgment by
setting aside the settlement deed dated 10.06.2007 on the ground that the settlement deed is contrary to the customary law of co-parcenery property established under Hindu Law at the instance of the plaintiff, who is a not a co-parcener and a total stranger to the co-parcenery?
ii) Whether the appellate court is correct in confirming the decree of the trial court when the suit is absolutely barred by limitation?
iii) Is not the First Appellate Court wrong in confirming the decree and Judgment of the trial court by ignoring the oral and voluminous documentary evidence?''
4. Issue notice to the respondent, returnable by 12.11.2019. Private notice is also permitted. Call for records from the first appellate court and also from the trial court. Call on 12.11.2019.'
5. The above neatly captures the factual matrix in a nutshell and also sets out the trajectory.
6. This Court is informed that records of the Courts below have since been received. This means that captioned second appeal is ripe for final hearing.
7. Learned counsel for appellant requests for a short accommodation and learned counsel on the side of respondent also requests for adjournment saying typed-set of papers have not been served on him. Learned counsel for appellant undertakes to do the needful in this regard within a fortnight from today i.e., on or before 05.08.2021. List a fortnight thereafter.
List on 19.08.2021.'
2. The aforementioned proceedings give the crux and gravamen of the lis in a nutshell and also capture the trajectory thus far.
3. In this view of the matter, a stay of the decree and judgment of the Courts below is untenable as it is a decree declaring a settlement deed as null and void. Therefore, captioned CMP is disposed of as closed preserving the rights of the petitioner/appellant to take out a suitable CMP with a suitable prayer in the days to come if so advised and if the need arises.
4. CMP disposed of in the aforesaid manner preserving the rights and liberties of petitioner/appellant. Though obvious, all the rights and contentions are left open in this regard. In other words, all questions are left open. There shall be no order as to costs.
-sd/- 22/07/2021 / TRUE COPY / Sub-Assistant Registrar ( Statistics / C.S. ) High Court, Madras - 600 104.
TO 1 THE PRINCIPAL DISTRICT JUDGE, TIRUVANNAMALAI, TIRUVANNAMALAI DISTRICT.
2 THE SUBORDINATE JUDGE, TIRUVANNAMALLAI, TIRUVANNAMALAI DISTRICT.
Order in CMP.No.22155 of 2019 in SA.NO.1026 of 2019 Date :22/07/2021 From 26.2.2001 the Registry is issuing certified copies of the Interim Orders in this format TP(30/07/2021)