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2008 DIGILAW 2395 (MAD)

Koothayyan v. Minor Ayyappan, rep. by next friend/father Umapathi

2008-07-11

K.K.SASIDHARAN

body2008
JUDGMENT K.K. SASIDHARAN, J. 1. This appeal is directed against the judgment and decree dated 25.1.2008 made in A.B. No. 124 of 2005 on the file of Subordinate Court, Kallakurichi confirming the judgment and Decree of the II Additional District Munsif, Kallakurichi, dated 28.10.2004 made in O.S. No. 392 of 1999. 2. The suit O.S. No. 392 of 1999 has been filed by the respondent through his father praying for a decree for cancellation of the Sale Deed dated 22.2.1999 executed by the respondent’s mother Thangamani in favour of the appellant in respect of half share of the property in ‘A’ Schedule and for declaration that the respondent is entitled to half share in the veil, motor and electricity service connection to the well mentioned in the ‘A Schedule Property. 3. In the plaint in O.S. No. 392 of 1999, it was the case of the respondent (plaintiff) that the property in S. No. 112/4 and other properties were in possession of Thangammal and the well was dug in the said property and electricity connection was also obtained. The said Thangammal executed a Sale Deed dated 23.6.1995 in respect of half share along with the well and service connection and one acre of land in the ‘B’ Schedule Property to the appellant. The Sale Deed executed by the respondent’s mother in respect of the suit property belonging to the minor is void as permission of the District Court has not been obtained before selling the property of the minor. Accordingly, the respondent has prayed for a Decree of cancellation of the Sale Deed and for declaration as well as Permanent Injunction. 4. The suit was resisted by the appellant by filing Written Statement wherein it was his contention that the suit property is joint family property, consisting of the respondent his father Umapathy and Umapathy’s father Ramasami. The suit property was purchased in the name of the minor from the income of the joint family and only a sum of Rs. 2,000/- was given to Thangammal and the balance consideration for the Sale Deed was decided to be settled for the loan amounts due to one Thangavel Udaiyer and to the Chinnasalem Cooperative Bank by the said Thangammal. The family of the respondent failed to pay the loan amount and as such, the Sale Deed was executed for a sum of Rs. The family of the respondent failed to pay the loan amount and as such, the Sale Deed was executed for a sum of Rs. 55,000/- in respect of the property in S. No. 112/3,4,8 having an extent of one acre, along with well and motor by Thangamani Ammal Ramasamy Udaiyar. From the consideration so received from the sale, the dues were paid. The document was executed by the respondent’s mother as guardian of the minor. In such circumstances, the appellant has prayed for dismissal of the suit. 5. The matter was taken up for trial and on the side of the respondent Exhibit A-1 to Exhibit A-15 were marked and hi s father was examined as a P.W.1. On the side of the appellant, Exhibit B-1 to Exhibit B-5 were marked and D.W.s 1 and 2 were marked. 6. The learned Trial Judge after consideration of the matter opined that the respondent has proved his case for a decree of declaration and consequential injunction and accordingly, the suit was decreed. 7. The judgment and decree dated 28.10.2004 in O.S. No. 392 of 1999 was taken up in first appeal before the Subordinate Judge, Kallakurichi in A.S. No. 124 of 2005 and the said appeal was also dismissed by confirming the judgment, and Decree of the trial Court. Aggrieved by the said judgment and Decree, the unsuccessful appellant has come up by way of second appeal. 8. I have heard Thiru P. Valliappan, the learned counsel for the appellant. 9. The learned counsel appearing for the appellant contended that the property was sold by the mother of the minor to discharge the loan taken for the benefit of the minor and as such, the sale effected in favour of the appellant was valid and binding on the respondent. 10. I have considered the judgment and decree of the trial Court as well as the first Appellate Court. The dispute in the present case relates to the property transferred by the mother of the minor respondent to the appellant as per Exhibit B-3. Admittedly, permission of the District Court Has not been taken for effecting such sale and except the averments in the document that the property was sold for the benefit of the minor, no evidence has been adduced on the side of the appellant to show that the property was in fact, sold for the benefit of the minor. Admittedly, permission of the District Court Has not been taken for effecting such sale and except the averments in the document that the property was sold for the benefit of the minor, no evidence has been adduced on the side of the appellant to show that the property was in fact, sold for the benefit of the minor. No attempt was made by the appellant to examine the mother of the respondent to prove his contention that the property was sold for the necessity of the family and the minor respondent in particular. Absolute right of the minor in respect of his half share in the property is not in dispute. Though the nature of right of the respondent in the property has been challenged by the appellant in his Written Statement, no evidence was let in on his part to prove the contentions in the Written Statement. I am of the view that there is no substantial question of law involved in the matter. 11. The Apex Court in Hero Vinoth v. Seshamaal AIR 2006 SC 2234 : (2006) 3 MLJ 121 : 2006 (5) Scale 477 , has considered the jurisdiction of the High Court in second appeal to interfere in the judgment of the appellate Court and held thus at p. 127 of MLJ: “19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last Court of fact, being the first appellate Court. It is true that the lower appellate Court should not ordinarily reject witnesses accepted by the trial Court in respect of credibility but even where it has rejected the witnesses accepted by the trial Court, the same is no ground for interference in second appeal when it is found that the appellate Court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. In a case where from a given set of circumstances two inferences of fact are possible, one drawn by the lower appellate Court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at by ignoring material evidence.” 12. On a careful consideration of the judgment and decree of the Courts below, I am of the view that the second appeal is devoid of merits. There is no error or infirmity in the judgment of the Courts below and as such, the second appeal is liable to be dismissed. 13. In the result, the second appeal is dismissed. No costs. Consequently M.P. No. 1 of 2008 is also dismissed. Second appeal dismissed.