Manjula v. Kanagaraj

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 12.03.2024

CORAM:

THE HONOURABLE MRS.JUSTICE S.SRIMATHY 1.Manjula 2.Megala ... Appellants Vs.

1.Kanagaraj 2.Karuppaiah 3.Panneer Selvam 4.Ganesan 5.Nallu @ Nagarajan 6.Palanisamy

...Respondents

P RAYER : Second Appeal filed under Section 100 of the Civil Procedure Code, against the Judgment and Decree dated 07.01.2021 passed in A.S.No.9 of 2019 on the file of the Principal District and Sessions Judge, Pudukkottai, modifying the Judgment and Decree dated 17.09.2018 made in O.S.No.417 of 2012 on the file of the Principal Subordinate Court, Pudukkottai. For Appellants : M/s.J.Anandhavalli For R1 to R3 : No Appearance For R4 to R6 : Mr.Shangar Murali ***** 1/11

JUDGMENT

The present second appeal is filed against the Judgment and Decree of the Principal District and Sessions Judge, Pudukkottai, dated 07.01.2021 passed in A.S.No.9 of 2019, modifying the Judgment and Decree of the Principal Subordinate Court, Pudukkottai, dated 17.09.2018 in O.S.No.417 of 2012.

2. The Plaintiff in the suit is the Appellant herein and the Defendant in the suit is the Respondent herein. For the sake of convenience, the contesting parties shall be referred to as per the ranking in the suit.

3. The plaintiff had filed the suit for declaration of share and the nullification of Sale Deeds dated 09.05.2005 and 27.04.2012. The brief facts stated by the plaintiff are that the properties in question are ancestral properties initially owned by the plaintiff's great-grandfather, Kamatchi Malavarayar. Balamuthu Malavarayar is the son of Kamatchi Malavarayar. The 1st and 3rd defendants namely Karuppaiah and Ganesan are the sons of Balamuthu Malavarayar. The plaintiffs namely Manjula and Megala are the daughters of the 1st defendant and the 2nd defendant namely Pannerselvam is the son of the 1st 2/11

defendant. The 4th and 5th defendants namely Nallu@Nagarajan and Palanisamy are the sons of the 3rd defendant. After the demise of the said Balamuthu Malavarayar, the plaintiffs and defendants 1 to 5 enjoyed these properties together as his legal heirs. The defendants 1 and 3 each possess an undivided half share of the properties, while the plaintiffs each hold 1/8th share within the undivided half share of the 1st defendant. On 09.05.2005, the defendants 1 to 5 executed a forged sale deed in favour of the 6th defendant concerning the eastern portion of items 5 and 7 of the suit properties. On 27.04.

2011, the 1st and 3rd defendants executed another forged sale deed in favour of the 4th and 5th defendants regarding the western portion of items 5 and 7 and 11 and 12, all to the detriment of plaintiff's rights and hence these sale deeds ought to be declared as invalid, forged documents and has no legal force. The plaintiffs and defendants 1 to 5 jointly enjoy the suit properties and the defendants 4 to 6 are aware of this joint enjoyment. On 15.01.2012, the plaintiffs, unwilling to continue this joint enjoyment, approached defendants 1 to 5 for partition of the properties, but their requests were evaded. Subsequently, on 27.11.2012, defendants 4 to 6 attempted to commence building construction in collusion with Defendants 1 to 3. The plaintiffs successfully prevented this attempt.

seek legal redress to resolve the matter of partition and to invalidate the fraudulent sale deeds executed by the defendants, hence the suit for partition.

4. The defendants remained exparte before the Trial Court. The 6th defendant has contested the suit and had filed written statement. The contention of the defendants is that the plaintiffs have filed this suit seeking partition and separate possession of the suit properties, along with a declaration that the sale deed executed by defendants 1 to 5 in favour of the 6th Defendant is invalid. The defendant admit that the properties originally belonged to their great-grandfather, Kamatchi Malavarayar, but deny that after Balamuthu Malavarayar's death, the properties were not inherited and enjoyed by defendants 1 to 5 as Hindu Joint Family properties and the plaintiffs ought to prove that the suit properties are ancestral and that they have rights.

According to the Hindu Succession Act, the plaintiffs cannot claim shares in the suit properties. The 6th defendant submitted that he lawfully purchased the eastern portion of the property in Item Nos. 5 and 7 from defendants 1 to 5 for valuable consideration through a registered sale deed and hence the plea of defrauding the plaintiff would not arise.

Nos. 5 and 7. Further, it is denied that the 6th defendant did not obtain possession and enjoyment of the properties upon purchase. After purchase the 6th Defendant was in in possession and enjoyment of the property as absolute owner without any interference. Further the relief in the plaint is barred by limitation. There is no cause of action to file the suit. The suit is not properly valued.

5. After considering the pleadings of the parties, documentary evidence and depositions of the parties, the Trial Court allowed the suit by granting 1/8th share to the plaintiff and nullified the Sale Deed dated 09.05.2005 as far as the plaintiff are concerned. Aggrieved over the same, the defendant had preferred an appeal and the First Appellate Court has allowed the appeal in part and confirmed the finding of the Trial Court as far as the declaration of 1/8th share but set aside the finding as far as the nullification of the Sale Deed dated 09.05.2005. Aggrieved over the same, the plaintiff has preferred this Second Appeal.

6. The second appeal was admitted on the following substantial questions of law:

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"a) Whether the Judgment and decree of the lower Appellate Court is sustainable in law in setting aside the finding on Ex.A3 by the Trial Court? b) Whether the Judgment and decree of the lower Appellate Court on the interpretation of Ex.A3 is sustainable in law? c) Whether the lower Appellate Court is right in granting equity to the 1st respondent, who is the purchaser from co-owners? d) Whether the lower Appellate Court is right in relegating the finding on Ex.A3 in final decree proceedings and setting aside the finding of the Trial Court on Ex.A3 in so far as the share of the appellant are concerned?"

7. The defendants 1 to 5 remained exparte in both the Courts. The sale of western portion of Items 5 and 7 and Items 11 and 12 to defendants 4 and 5 is also challenged by the plaintiffs in the suit and the Trial Court had decreed the same in entirety by holding that the plaintiffs are entitled to 1/8th share in the suit properties and had set aside the sale to defendants 4 and 5, but the said defendants 4 and 5 has not filed any appeal and the same had attained finality. However, the sale of eastern portion of Items 5 and 7 to 6th defendant was challenged in A.S. No.9 of 2019 by the 6th defendant and the Appellate Court had held that the plaintiffs are entitled to 1/8th share in all the properties, but had not set aside the 6/11

sale deed executed in favour of the 6th defendant and held that setting aside can be relegated to the final decree and the Trial Court shall make endeavour to allot the properties executed under Ex.A3 (the eastern portion of Items 5 and 7) in favour of defendants 1 to 5, thereby releasing the same in favour of 6th defendant.

8. The contention of the plaintiff is that when the plaintiff is entitled to the undivided share in suit properties, then the sale ought to be set aside, since the co-owners share cannot be sold without the consent of the co-owners. The contention of the 6th defendant is that he had purchased the eastern portion of Items Nos.5 and 7 of the suit properties for valuable consideration. Further he had submitted that the 1st plaintiff was paid Rs.40,000/- for her share in the said suit property. But it is seen that the Trial Court had disbelieved the said contention of the 6th defendant and the reason stated is that the 1st plaintiff had not deposed the same before the Court. Also stated that only the 2nd defendant had deposed, who is not competent person to confirm the same. Further held that the said amount is paid after the sale deed is executed. This Court is of the concerned opinion that such reasoning is erroneous, since the said statement is not denied by the 1st plaintiff. Any admitted facts need not be contested. Infact the 6th defendant had 7/11

specifically taken a plea in the written statement that "the 1st plaintiff had acknowledged the sale to him and hence she is estopped from claiming any share in Item Nos. 5 and 7". But the plaintiff had not specifically denied the same. Hence the reasoning of the Trial Court is erroneous.

9. When the 1st plaintiff had not denied the receipt of Rs.40,000/-, then the 6th defendant is entitled to equity relief. Therefore, the Appellate Court had relegated the issue to be decided at the time of passing final decree. And there is no impediment in relegating the same to the final decree.

10. The specific stand of the plaintiffs is that the eastern portion cannot be granted to the 6th defendant, when the plaintiffs are co-owners. At the time of passing final decree the said eastern portion ought to be available for 1/8th partition. However, it is seen that the sale deed is dated 09.05.2005 and the 1st plaintiff is aware of the said sale deed when she had received Rs.40,000/-. Further it is seen that the said amount was paid after the sale deed was executed. However, the plaintiff had filed the suit in the year 2012 which is after a period of 7 years. In such circumstances, the 6th defendant is entitled to equity relief since 8/11

after the sale deed the 6th defendant had muted the revenue records and was in possession and enjoyment of the same for the past 7 years (until filing of suit).

11. As co-owners, the plaintiffs are entitled to 1/8th share in the items 5 and 7 after along with other defendants. The share of 1 to 5 defendants shall be allotted in the eastern portion and then the same shall be released in favour of the 6th defendant would be the appropriate equity relief to the plaintiff and the Appellate Court had rightly granted the said relief and the same needs no interference. All the substantial questions of law are answered against the plaintiffs / appellants herein.

12. For the reasons stated supra, the second appeal is dismissed confirming the Judgment and Decree, dated 07.01.2021, made in A.S.No.9 of 2019 on the file of the Principal District and Sessions Judge, Pudukkottai. No costs.

12.03.2024 Index : Yes / No NCC : Yes / No Tmg 9/11

TO:

1. Principal District and Sessions Judge, Pudukkottai.

2. Principal Subordinate Court, Pudukkottai.

3.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.

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S.SRIMATHY, J.

Tmg Judgment made in S.A.(MD)No.522 of 2021 Dated:

12.03.2024 11/11