Dharmaraja Mudaliyar v. Beemaraj — 1992 DIGILAW 528 (MAD)

Judgment :- 1. The first defendant is the appellant herein. The plaintiff filed O.S. No. 390 of 1974 for declaration of his title to the suit property and for an injunction restraining the defendants from interfering with his possession and enjoyment of the suit properties. The case of the plaintiff is as under:— The plaintiff is the son of the 2nd defendant through his first wife. The 2nd defendant had two brothers. In a Kurchit dated 25.5.1944 his father along with his brothers got divided and they have been living separately. The suit property is one of the properties given to the 2nd defendant in the said partition. Ever since the partition, the 2nd defendant was enjoying the property allotted to him along with the plaintiff and his brothers. The 2nd defendant executed a registered settlement dated 7.12.1958 with regard to the suit properties and other properties in favour of the plaintiff and his brothers and sisters. Later on, some of the properties belonging to the 2nd defendant and his brothers were acquired by the Government. A major portion of the properties belonging to the 2nd defendant was acquired in that acquisition. In order to compensate the said loss, the three brothers on 9.4.1966 effected another partition of the remaining properties and allotted 64 cents out of acre 92 cents in favour of each one of the brother. Sitarama Mudaliar bequeathed his 64 cents to his son-in-law Kanakasapapathy. Kanakasapapathy in turn sold his 64 cents on 2.5.1968 to Ethirajulu Mudaliar, the brother of the plaintiff. Ethirajulu Mudaliar purchased the same or the benefit of the joint family of the plaintiff and his brothers. Thus the plaintiff and his brothers have got one acre and twenty-eight cents in the suit survey number. Since the 2nd defendant bequeathed his share to the plaintiff and to his brothers in the year 1958 he has not acquired any portion of the properties under the partition deed. Thereafter, for the purpose of an amicable settlement among the brothers Ethirajulu Mudaliar and Ganapathy relinquished their rights in some of the properties in favour of the plaintiff in a registered release deed dated 17.9.1973. Thus the plaintiff became the absolute owner of the suit properties. He is in possession and enjoyment of the same in his own right. Thereafter, for the purpose of an amicable settlement among the brothers Ethirajulu Mudaliar and Ganapathy relinquished their rights in some of the properties in favour of the plaintiff in a registered release deed dated 17.9.1973. Thus the plaintiff became the absolute owner of the suit properties. He is in possession and enjoyment of the same in his own right. Ekambara Mudaliar, the 2nd defendant is not the owner of the suit property and he has no right over the same from the year 1958 onwards. The plaintiff understands that the 1st defendant had obtained a money decree in O.S. No. 174 of 1971 against the 2nd defendant and had purchased the suit property in a Court auction, sale in an execution proceedings. The Court auction sale cannot confer any title to the first defendant and it will not be binding upon the plaintiff. The plaintiff is entitled to the same. The document dated 7.12.1958 though styled as a settlement deed, it is actually a partition deed, O.S. No. 174 of 1971 is a collusive suit between the 1st defendant and the 2nd defendant. With the help of the decree obtained in that suit, the 1st defendant is disturbing the possession and enjoyment of the plaintiff. Hence, the suit 2. The case of the 1st defendant is as under:— The alleged settlement deed dated 7.12.1958 is void and inoperative in law. Since the properties are ancestral properties, the 2nd defendant is not entitled to create any settlement in favour of his children. The settlement was not accepted by the plaintiff. The settlement deed was not intended to be acted upon. In the registered partition deed between the 2nd defendant and his brothers the Kurchit was cancelled. Therefore, the earlier settlement deed dated 7.12.1958 was cancelled and has become void ab initio. It is not correct to state that Sitaraman bequeathed 64 cents to his son-in-law Kanakasapabathy. It is also not correct to state that Kanakasapabathy sold the property to the brother of the plaintiff. The sale in favour of the plaintiff by the said Kanakasapabathy was for the benefit of the joint family consisting of the 2nd defendant, plaintiff and his brothers. Therefore, the plaintiff cannot claim exclusive title for himself. The consideration for the sale was paid from and out of the joint family. Therefore, the plaintiff is not the sole owner of the property. Therefore, the plaintiff cannot claim exclusive title for himself. The consideration for the sale was paid from and out of the joint family. Therefore, the plaintiff is not the sole owner of the property. The release deed dated 17.9.1973 is a sham document. It was created after the attachment in the suit in O.S. No. 174 of 1971 and in E.P. No. 1132 of 1973. Hence, it is hit by the doctrine of Lis Pendens. The 2nd defendant alone was in possession and enjoyment of the suit property. The 2nd defendant borrowed money from the 1st defendant on a promissory note for family necessity on 2.7.1968. The said debt is binding on the plaintiff and his brothers. In order to recover the amount due under the promissory note the suit was filed. The suit was decreed after contested by the 2nd defendant. After the passing of the decree, in the execution proceedings the property was brought to sale and the same was purchased in the Court auction. Even though the plaintiff know about the attachment and the court auction, he simply kept quiet. He did not make any claim. The suit is bad for non-joinder of parties. The nature of the suit was completely changed by the plaintiff by seeking an amendment. It is not open to the plaintiff to state that the document dated 17.12.1958 is both a settlement and a partition deed. Even according to the plaintiff the decree and Court auction sale in O.S. No. 174 of 1971 is binding upon the plaintiff. The 2nd defendant was the Manager of the joint family. The 2nd defendant has no right to execute the settlement deed in respect of the joint family properties creating a life interest. There was no prayer in the suit to set aside the decree obtained in O.S. No. 174 of 1971. Therefore, it was pleaded that the suit is liable to be dismissed. 3. The 2nd defendant remained absent and was set ex parte. 4. The plaintiff filed six documents. The defendants filed 14 documents. The plaintiff examined himself as PW-1. The 1st defendant examined himself as DW-1. Considering the facts arising in this case, the trial court decreed the suit declaring the plaintiffs title to 64 cents which was purchased under Ex. A3 and relinquished in his favour under Ex. A4. Injunction was granted only with regard to the said 64 cents. The plaintiff examined himself as PW-1. The 1st defendant examined himself as DW-1. Considering the facts arising in this case, the trial court decreed the suit declaring the plaintiffs title to 64 cents which was purchased under Ex. A3 and relinquished in his favour under Ex. A4. Injunction was granted only with regard to the said 64 cents. In other respects, the suit was dismissed. On appeal, the first appellate court confirmed the judgment and decree rendered by the trial court. It is against this judgment and decree of the first appellate court, the 1st defendant is in appeal before this court. 5. The learned counsel appearing for the 1st defendant/appellant herein submitted as under:— By virtue of the judgment, the lower courts in effect set aside the court auction sale and the purchase of the suit property by the appellant herein. This is clearly barred under O. 21, R. 58 and under O. 21, R. 89, 90 and 92 read with S. 47 of C.P.C. The courts below failed to note that an extent of 1 acre and 28 cents has become the joint family property of the 2nd defendant. As the Manager of the joint family, the 2nd defendant incurred the liability to the 1st defendant. Since the debt was incurred by the 2nd defendant for the necessity of the joint family, it is binding upon the plaintiff as the member of the said Joint family. The plaintiff knew about the attachment in the execution proceedings and also knew about the Court auction sale. He did not take any action to prevent the Court auction sale. He did not also take any steps to set aside the court auction sale. Therefore, the suit filed without challenging the decree passed in O.S. No. 174 of 1971 is not maintainable. Court auction sale was confirmed and the delivery of possession was also given to the 1st defendant. Therefore, at this stage it is not open to the plaintiff to file the present suit. In view of all the above facts, the trial court ought not to have granted a decree in favour of the plaintiff with regard to 64 cents of land. The document created during the pendency of the suit in O.S. No. 174 of 1971 would be hit by the principle of Lis pendens. In view of all the above facts, the trial court ought not to have granted a decree in favour of the plaintiff with regard to 64 cents of land. The document created during the pendency of the suit in O.S. No. 174 of 1971 would be hit by the principle of Lis pendens. It was therefore pleaded that the courts below were not correct in granting a decree in favour of the plaintiff with regard to 64 cents and hence the judgment and decree rendered by the courts below are liable to be set aside. 6. On the other hand, the learned counsel appearing for the respondents herein submitted as under:— The plaintiff is the son of the 2nd defendant through his 1st wife. The 2nd defendant had two brothers. Under a kurchit dated 25.5.1944 those three brothers have got themselves divided and they have been living separately. The suit property was one of the properties allotted to the 2nd defendant in the said partition. The 2nd defendant executed the settlement deed dated 7.12.1958 consisting of the suit-properties and other properties in favour of the plaintiffs brothers and sisters. There was another partition on 9.4.1966 between the 2nd defendant and his brothers. In the said partition Sitaraman bequeathed his 64 cents to Kanakasapabathy, who in turn sold the same on 2.5.1968 to Ethirajulu Mudaliar, brother of the plaintiff who purchased the same for the benefit of the joint family. Thus the plaintiff and his brothers got 1 acre and 28 cents. After 1958 the 2nd defendant was not having any interest in the suit properties. The brothers of the plaintiff relinquished their shares in favour of the plaintiff by a release deed dated 17.9.1973. Thus the plaintiff became the absolute owner of the suit properties. The 2nd defendant was not the owner of the suit properties. The debt was not incurred by him for the purpose of family necessity. In the suit O.S. No. 174 of 1971 the plaintiff was not a party. Therefore, the judgment and decree rendered in O.S. No. 174 of 1971 would not be binding upon the plaintiff. The plaintiff is entitled to ignore the same. Therefore, there is no necessity for the plaintiff to file the suit for declaration that the decree obtained in O.S. No. 174 of 1971 is not binding upon him. Therefore, the judgment and decree rendered in O.S. No. 174 of 1971 would not be binding upon the plaintiff. The plaintiff is entitled to ignore the same. Therefore, there is no necessity for the plaintiff to file the suit for declaration that the decree obtained in O.S. No. 174 of 1971 is not binding upon him. It was therefore pleaded that even though the plaintiff is entitled to 1 acre and 28 cents, the courts below granted title to the plaintiff only to the extent of 64 cents. In view of all the above said facts, it was submitted that the appeal is liable to be dismissed. 7. I have heard the rival submissions. 8. According to the plaintiff under Ex. A2 settlement deed the 2nd defendant settled the properties in favour of the plaintiff and his brothers and sisters on 7.12.1958. The first appellate court pointed out that Ex. A2 does not seem to have conveyed any land in Survey No. 228/2 but mentioned only about 1/3rd share in the sale. Ex. A2 was cancelled by the 2nd defendant on 24.3.1964. Ex. B2 is the registration copy of the said cancellation deed. According to Ex. A2 the properties mentioned therein are both ancestral and separate property of Ekambaram. According to the first appellate court Ex. A2 and B2 did not show that any land in the suit survey number was conveyed to the plaintiff and his brothers and sisters. The 2nd defendant and his brothers effected a registered partition deed dated 9.4.1966. A copy of the said partition deed is marked as Ex. B1. This partition deed shows that the 2nd defendant got 64 cents in the suit survey number under the ‘C’ schedule property to the partition deed. According to the first appellate court since Ex. A2 does not seem to have conveyed any land in the suit survey number to the plaintiff and his brothers, the question whether the said document is a settlement deed or a partition deed and whether it has been acted upon or not or whether the said settlement can be validly cancelled or not are totally irrelevant for the purpose of the present suit. There was a partition deed between the 2nd defendant and his brothers. Ex. B1 mentions about the kurchit, According to the first appellate court the plaintiff cannot claim any right to the suit property under Ex. There was a partition deed between the 2nd defendant and his brothers. Ex. B1 mentions about the kurchit, According to the first appellate court the plaintiff cannot claim any right to the suit property under Ex. A2 and under Ex. A4 release deed executed by his brothers in favour of him on 17.8.1973. According to the first appellate court there was no evidence with regard to the fact that after 9.4.1966 the date of Ex. B1 there has been a partition among the 2nd defendant and his sons and daughters, except the fact that the 2nd defendant left his first wife and his children and went to live with his 2nd wife. The first appellate court further pointed out that it is only in the year 1966 a regular partition took place between the 2nd defendant and his brothers. It is only under Ex. B1 the suit property was divided among the three brothers allotting 64 cents to each one. The 1st defendant is the creditor of the 2nd defendant. The 2nd defendant was possessed of only 64 cents. The creditor was not entitled to brought to sale 1 acre and 28 cents because the debtor was having only 64 cents in his hands. Here also it is necessary for the creditor to show that the debt was incurred for the purpose of family necessity. In Ex. B10 the 2nd defendant himself has stated that he possessed only 1/3rd share in the suit survey number. In Ex. B11, the 2nd defendant has shown a total extent of 1 acre and 25 cents in two survey numbers viz. 228/2B and 228/3. The first appellate court has also pointed out that the 1st defendant cannot contend that Ex. A3 and A4 are not valid. Ex. B5 is the certified copy of the promissory note executed by the 2nd defendant in favour of the 1st defendant on 2.7.1968. According to the first appellate court after the partition, the 2nd defendant became the Manager of the joint family consisting of himself and his wife and children. Therefore according to the first appellate court the debt was incurred for the family necessity. Under such circumstances, it was stated by the first appellate court that the plaintiff was also bound to discharge the debt. Therefore according to the first appellate court the debt was incurred for the family necessity. Under such circumstances, it was stated by the first appellate court that the plaintiff was also bound to discharge the debt. Whatever might be, the factual position with regard to the ownership of the properties held by the 2nd defendant, the fact remains that the creditor of the 2nd defendant filed a suit O.S. No. 174/1971 to recover the amount due on the promissory note. A decree was obtained in the said suit and in the execution proceedings the properties belonging to the 2nd defendant was brought to sale. In the court auction sale, the 1st defendant purchased the property belonging to the 2nd defendant. The plaintiff did not take any steps either to prevent the court auction sale or to set aside the court auction sale. The property was sold in court auction sale in favour of the 2nd defendant. It was stated that the possession was also handed over to him. Under such circumstances, without setting aside the sale held in the execution proceedings in O.S. No. 174/1971, the plaintiff herein cannot ask for declaration of title to the suit properties. When this appeal came up for hearing, during the course of arguments, the learned counsel appearing or the appellant submitted that if a chance is given to the appellant, he will set right the defects found in the frame of the suit. Considering the request made by the learned counsel appearing for the appellant, I am of the opinion that the present suit filed by the plaintiff without a prayer to set aside the decree granted in O.S. No. 174 of 1971 is not only defective but also unsustainable. Considering all these aspects, I set aside the judgment and decree rendered by the courts below and remit back the suit to the file of the trial court with a direction to dispose of the same afresh in accordance with law after giving an opportunity of being heard to both the parties. The parties are at liberty to adduce evidence, both oral and documentary, in order to support their respective cases. 9. In that view of the matter, the appeal is allowed and the suit is remitted back to the trial court for fresh disposal. However, there will be no order as to costs. 10. The parties are at liberty to adduce evidence, both oral and documentary, in order to support their respective cases. 9. In that view of the matter, the appeal is allowed and the suit is remitted back to the trial court for fresh disposal. However, there will be no order as to costs. 10. The appellant is entitled to the refund of half of the court fee paid as per the relevant provisions of the Tamil Nadu Court Fees and Suit Valuation Act.