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2010 DIGILAW 3563 (MAD)

D. Bharath Kumar v. D. Chandrasekar

2010-08-17

M.JAICHANDREN

body2010
Judgment :- 1. This second appeal has been filed against the judgment and decree, dated 2.12.2008, made in A.S.No.45 of 2005, on the file of the District Court and Fast Track Court, No.4, Ponneri, confirming the judgment and decree, dated 21.12.2004, made in O.S.No.101 of 1998, on the file of the District Munsif Court, Ponneri. 2. The plaintiffs in the suit, in O.S.No.101 of 1998, on the file of the District Munsif Court, Ponneri, are the appellants in the present second appeal. The defendant in the said suit is the respondent herein. The suit had been filed praying for a decree of permanent injunction restraining the defendant and others from interfering with the plaintiffs’ peaceful possession and enjoyment of the suit properties, and for costs. 3. In the plaint filed in the suit, in O.S.No.101 of 1998, it has been stated that the first plaintiff’s father D.Viswanathan, son of Kumarasamy Chetty, had been adopted by Badraiah Chetty. The second plaintiff is the daughter of Chengalvaraya Chetty. She had also been adopted by Badraiah Chetty, since, Badraiah Chetty had no issues. 4. It had also been stated that the suit properties belonged to Badraiah Chetty, absolutely. Badraiah Chetty was in possession and enjoyment of the suit properties, during his life time. Thereafter, D.Viswanathan, and the second plaintiff, Shantha, had been in continuous possession and enjoyment of the suit properties. After the demise of D.Viswanathan, his son Bharath Kumar, the first plaintiff in the suit, had been continuing to be in possession and enjoyment of the said properties. The defendant is the son of the paternal uncle of the first and the second plaintiffs. 5. It had also been stated that Devi Veerappa Chetty, the great grand father of the said plaintiffs, had left behind his three sons, namely, Devi Chengali Chetty, Sarabaiah Chetty, and Dhoorvasalu Chetty. Chengali Chetty had died leaving behind Veera badraiah, Chengalrayan, and Kumarasamy. The defendant is the son of Veera badraiah. The second plaintiff is the daughter of Chelgalvaraya Chetty and the adopted daughter of Badraiah Chetty, who had performed her marriage. 6. It had also been stated that during the life time of Badraiah Chetty, he had let out a portion of the house properties shown in the first item of the suit properties through a registered rental agreement, dated 20.5.1942. 6. It had also been stated that during the life time of Badraiah Chetty, he had let out a portion of the house properties shown in the first item of the suit properties through a registered rental agreement, dated 20.5.1942. since, Badraiah Chetty had no issues and as his adopted children were very young, the defendant was looking after the affairs of the first item of the suit properties, as well as the cultivable lands in the second item of the suit properties. While so, the defendant had attempted to sell the suit properties to a third party, without disclosing the fact that the plaintiffs were the real owners of the said properties. In such circumstances, the plaintiffs had filed the suit, in O.S.No.101 of 1998, on the file of the District Munsif Court, Ponneri. 7. In the written statement filed on behalf of the defendant, it had been stated that the suit filed by the plaintiffs is not maintainable, either in law or on facts. The averments and the claims made by the plaintiffs in the plaint filed in the suit, in O.S.No.101 of 1998, are incorrect and false. It is a fact that Veerappa Chetty had three sons, namely, Sarabaiah Chetty, Devi Chengali Chetty, and Dhoor Vasalu Chetty. Sarabaiah Chetty had no issues. Devi Chengali Chetty had three sons, namely, Veerabadram chetty, father of the defendant, Chengalvaraya chetty, father of the second plaintiff and Kumaraswamy chetty, paternal grand father of the first plaintiff. Dhoor Vasalu Chetty had a son by the name of Badraiah Chetty. After the death of Veerappa Chetty, his three sons, Sarabaiah Chetty, Devi Chengali Chetty, and Dhoor Vasalu Chetty were enjoying the property left by Veerappa Chetty. Later, Devi Chengali Chetty had died leaving behind his three sons, Veerabadram chetty, Chengalraya chetty and Kumarasamy chetty. Since, Veerabadram chetty was the eldest among the sons of Devi Chengali chetty, he was acting as the kartha and the manager of the joint family. 8. It had also been stated that, in the year, 1917, there was a mortgage debt due to one Chengan, as well as a decree debt in the suit, in O.S.No.144 of 1916, on the file of the District Munsif Court, Thiruvallur. Sarabaiah Chetty, Veerabadram Chetty and Badraiah chetty had sold the entire properties, set out in the plaint schedule, to Sir. Sarabaiah Chetty, Veerabadram Chetty and Badraiah chetty had sold the entire properties, set out in the plaint schedule, to Sir. P.T.Thyagaraya Chetty, by way of a duly registered sale deed, dated 21.1.1917. As such, Sir. P.T.Thyagaraya Chetty was in possession and enjoyment of the suit properties. Subsequently, Veerabadram chetty, father of the defendant, had married Kousalya, daughter of Sir.P.T.Thyagaraya Chetty. Sir.P.T.Thyagaraya Chetty gave the entire suit properties, by way of an oral gift, to his daughter Kousalya and his son-in-law, Veerabadram Chetty. Thus, the defendants father Veerabadram Chetty has been in possession and enjoyment of the suit properties, along with Kousalya, the defendant’s mother. 9. It had also been stated that, after the sale of the suit properties in favour of Sir.P.T.Thyagaraya Chetty, there was a registered agreement between Veerabadram Chetty, his brothers Chengalvaraya chetty and Badraiah chetty, to the effect that all the joint family properties were sold for the purpose of discharging the debts. As such, they had no right or claim against each other, in respect of the properties to be acquired in future. Since, Kumarasamy chetty was a minor, his name does not find a place in the said agreement. In fact, Veerabadram Chetty was acting as the kartha and the manager of the joint family of the legal heirs of late Devi Chengali chetty. 10. It had also been stated that the defendant’s father had let out the house in the suit properties to Chengalvaraya Chetty, son of Narayanaswamy chetty, by a registered lease deed, dated 17.7.1947. Further, the house tax assessment, in respect of item 1 of the suit properties had been assessed in the name of Veerabadram Chetty, and after his death, it had been assessed in the name of the defendant. The defendant had also an electricity service connection in his name, in respect of item No.1 of the suit property. The defendants father and after him, the defendant, had been in possession of the suit property, by letting out to third parties. After the death of Veerabadram Chetty, the defendant and the other legal heirs of Veerabadram Chetty, namely, Vanajakshi, Nagaraj and Soundari had succeeded to the suit properties of Veerabadram Chetty. After the death of Veerabadram Chetty, the house tax had been assessed in the name of the defendant. The defendant had let out the house to one Ramalingam, who is occupying the house, as a tenant. 11. After the death of Veerabadram Chetty, the house tax had been assessed in the name of the defendant. The defendant had let out the house to one Ramalingam, who is occupying the house, as a tenant. 11. It had been further stated that neither Badraiah Chetty, nor the plaintiffs had been in possession and enjoyment of the suit properties, as alleged in the plaint. As such, the plaintiffs had neither title over the properties, nor are they in possession of the suit properties. It had also been stated that the lease deed referred to in the plaint is neither true, nor valid and therefore, it is not binding upon the defendant and the other legal heirs of late Veerabadram chetty. Badraiah chetty had been leading a wayward life and he had not adopted the first and the second plaintiffs, as claimed in the plaint. Since, the defendant is in possession of the suit property, the question of trespass and dispossession of the said property by the defendant would not arise. As the suit is devoid of merits, it is liable to be dismissed. 12. In view of the averments made on behalf of the plaintiffs, as well as the defendant, the trial Court had framed the following issues for consideration: "1. Whether the lease deed, dated 20.5.1942, is true, valid and binding on the defendant? 2. Whether the plaintiffs are entitled to the relief of permanent injunction, as prayed for? 3. To what relief, the plaintiffs are entitled to?" The issues recasted by the trial Court are as follows: "1. Whether the suit properties were sold to Thyagaraja Chetty on 21.1.1917 and whether the sale is valid and binding on Badraiah Chetty? 2. Whether Badraiah Chetty had any right in the suit properties? 3. Whether the first plaintiffs father and the second plaintiff are the adopted children of Badraiah Chetty? 4. Whether the plaintiffs are in possession of the suit properties? 5. Whether the plaintiffs are entitled to permanent injunction, as prayed for? 6. To what relief, the plaintiffs are entitled to?" 13. The trial Court had answered the first and the second issues against the plaintiffs. It had been held that the sale of the suit properties to Thyagaraja Chetty was valid and binding on Badraiah Chetty. As such, Badraiah Chetty had no right in the suit properties, at the time of his death. 14. The trial Court had answered the first and the second issues against the plaintiffs. It had been held that the sale of the suit properties to Thyagaraja Chetty was valid and binding on Badraiah Chetty. As such, Badraiah Chetty had no right in the suit properties, at the time of his death. 14. The trial court had also held that it was for Badraiah Chetty to have filed a suit to declare the sale, pursuant to the sale deed, marked as Exhibit B.1, as invalid, after attaining majority, if he was of the opinion that the sale was not made for family necessities. No evidence had been shown on behalf of the plaintiffs to establish that Badraiah Chetty had questioned the sale, within the period of limitation. When the sale deed, marked as Exhibit B.1, is said to have been executed in the interest of the family, to discharge certain loans, it cannot be held that it is not binding on Badraiah Chetty. Therefore, the claim that the sale made by Sarabaiah Chetty, in favour of Thyagaraja Chetty, is invalid, as it had been made without the permission of the Court, as the property had belonged to minor Badraiah Chetty, had not been accepted by the trial Court. Even though the plaintiffs had claimed that the suit properties had belonged, absolutely, to Badraiah chetty, no evidence had been produced to substantiate the said claim. The plaintiffs had not adduced any evidence to show as to how Badraiah Chetty had acquired the suit properties, except the lease deed said to have been executed by Badraiah Chetty. The plaintiffs had not been in a position to adduce any evidence to sustain their claim. The said lease deed was in respect of only a portion of the first item of the suit properties. 15. The trial Court had also noted that, with regard to the other properties, the plaintiffs had not produced any evidence, even though the onus is on the plaintiffs to prove the title of Badraiah Chetty, in respect of the said properties. From the evidence of P.W.1, as well as from the admission made by the defendant, the trial Court had come to the conclusion that the suit properties must have been the joint family properties. 16. From the evidence of P.W.1, as well as from the admission made by the defendant, the trial Court had come to the conclusion that the suit properties must have been the joint family properties. 16. With regard to the third issue, the trial Court had held that it was a well settled principle of law that an adoption of a female child could not have been validly made before the Hindu Adoption and Maintenance Act, 1956, had come into force. 17. The trial Court had also found that no one from the family of the 1st plaintiff had been examined as a witness to speak about the fact that the father of the first plaintiff had been adopted by Badraiah Chetty. The first plaintiff, whose father is said to have been adopted by Badraiah Chetty, had not chosen to adduce any evidence. 18. It had also been found that there was no evidence to show that Chandrammal, who was shown as the mother of Viswanathan, in the exhibit A.2 legal heir certificate, is the wife of Badraiah Chetty. It had also been found that chandrammal had not been described as the adoptive mother of Viswanathan. Instead, she had been described as the mother of Viswanthan. Therefore, the trial Court had come to the conclusion that it had not been shown, by sufficient evidence, that Viswanathan, the father of the first plaintiff, was the adoptive son of Badraiah Chetty. 19. The trial Court had also found that the plaintiffs had admitted that the defendant was in possession of the suit properties, including the first item of the suit properties. It had also been seen that the defendant had proved that the house situated in the suit properties had been assessed to tax in his name and that he had also obtained electricity service connection in his name. 20. The trial court had also found that it was the case of the plaintiffs that Badraiah Chetty had asked the defendant to look after the properties, as the second plaintiff and the father of the first plaintiff were minors. As such, it was clear that the plaintiffs had admitted that the suit properties were in possession of the defendant. Therefore, the trial Court had rejected the request of the plaintiffs for a decree of permanent injunction against the defendant. As such, it was clear that the plaintiffs had admitted that the suit properties were in possession of the defendant. Therefore, the trial Court had rejected the request of the plaintiffs for a decree of permanent injunction against the defendant. Accordingly, the trial Court had dismissed the suit filed by the plaintiffs, by its judgment and decree, dated 21.12.2004, made in O.S.No.101 of 1998. 21. Aggrieved by the judgment and decree of the trial Court, dated 21.12.2004, the plaintiffs in the suit, in O.S.No.101 of 1998, had filed an appeal, in A.S.No.45 of 2005, on the file of the Additional District Court and Fast Track Court, No.4, Ponneri. 22. The first appellate Court had dismissed the appeal filed by the appellants, by its judgment and decree, dated 2.12.2008, made in A.S.No.45 of 2005, confirming the judgment and decree of the trial Court, dated 21.12.2004, made in O.S.No.101 of 1998. 23. Challenging the judgment and decree of the first appellate Court, dated 2.12.2008, made in A.S.No.45 of 2005, the appellants in the fist appeal, in A.S.No.45 of 2005, who were the plaintiffs in the suit, in O.S.No.101 of 1998, had filed the present second appeal before this Court raising the following questions, as substantial questions of law: "a. In a suit for bare injunction can the question of title be gone into and are the Courts below correct and justified in going into the question of title and upholding Exhibit A.1? b. Is Exhibit B.1 even otherwise valid, especially when a person who conveys it has no right to convey and when he has no right to represent the minors? c. Whether a sale person who has no authority, right or interest to sell, conveys the property void and voidable? d. When a person has no power or authority to represent a minor sell on behalf of minor is such a sale void or voidable and whether such a sale has to be set aside? e. When a sale on behalf of minor by a person who has no power or authority is void is there any necessity to have it set aside and whether assertion of right by the real owner, is not sufficient to nullify the void sale? f. Will not execution of Exhibit A.1 nullify the sale and are the Courts below correct and justified in ignoring Exhibit A.1, which tantamount to nullifying the sale? f. Will not execution of Exhibit A.1 nullify the sale and are the Courts below correct and justified in ignoring Exhibit A.1, which tantamount to nullifying the sale? g. Are the Courts below correct and justified in holding that the plaintiffs are not entitled to the relief of injunction? h. Are the Courts below correct and justified in holding that adoption has not been proved?" 24. The learned counsel appearing for the appellants had submitted that the judgment and decree of the Courts below are contrary to law, weight of evidence and the probabilities of the case. He had submitted that the courts below ought not to have gone into the aspect of title, in respect of the suit properties, in the suit filed by the appellants praying for a decree of bare injunction. The Courts below had erred in holding that the first and the second plaintiffs were not the adopted children of the plaintiffs. The Courts below had also erred in holding that no steps had been taken by the plaintiffs to set aside the sale, under Exhibit B.1. 25. It had also been stated that the assumption of the Courts below that the suit properties are joint family properties and therefore, no proper alienation had been made is not correct. The Courts below had come to the conclusion that the suit properties are joint family properties only based on the admission of the defendant. Since, the sale under Exhibit B.1 was void, it need not be set aside by way of a separate proceedings. The said sale cannot be said to be in the interest of the minor, or in the interest of the family. Even though there could be a presumption that every Hindu family is a joint family, the same presumption cannot be applied in respect of the properties concerned. Since, no property was available, the finding of the Courts below that the properties in question were joint family properties cannot be held to be valid. The Courts below had not framed the issues to be considered in a proper manner. 26. The learned counsel had also submitted that the subsequent transaction relating to the suit properties would clearly show that the earlier transaction of the sale in the year, 1917, was invalid. The courts below ought to have examined only the issue relating to the possession of the suit properties. 26. The learned counsel had also submitted that the subsequent transaction relating to the suit properties would clearly show that the earlier transaction of the sale in the year, 1917, was invalid. The courts below ought to have examined only the issue relating to the possession of the suit properties. Instead, the courts below had examined the question of title, erroneously. Therefore, the findings of the Courts below relating to the title, in respect of the suit properties should be set aside by this Court, in the present second appeal. 27. Per contra, the learned counsel appearing on behalf of the respondent had submitted that the Courts below had examined the issue of title, in respect of the suit properties, only because the plaintiffs had pleaded that they had title in respect of the said properties and that they were in possession of the same. The courts below had rightly rejected the claims made by the plaintiffs, in view of the fact that Badraiah Chetty had not questioned the sale, pursuant to the sale deed marked as Exhibit B.1. The said sale deed remained unchallenged. Further, the claim of the first and second plaintiffs that they were the adopted children of Badraiah Chetty had not been proved. There was no evidence to prove the claim of the plaintiffs that Chandrammal was the wife of Badraiah Chetty. 28. It had also been stated that the courts below had examined the issue of title only to know as to whether the claim of the plaintiffs that they were in possession of the suit properties, based on the title and as to whether they were in rightful possession of the suit properties, as claimed by them. The courts below had been compelled to render a finding, with regard to the issue of title, only due to the fact that the plaintiffs had pleaded that they had title in respect of the suit properties, by letting in evidence to prove their claim. However, the plaintiffs had failed to prove their title, as well as their possession, in respect of the suit properties. 29. The learned counsel had also submitted that in order to establish their claims, the plaintiffs had to prove that Badraiah Chetty was the absolute owner of the property in question and that the first and the second plaintiffs had been adopted by Badraiah Chetty as his children. 29. The learned counsel had also submitted that in order to establish their claims, the plaintiffs had to prove that Badraiah Chetty was the absolute owner of the property in question and that the first and the second plaintiffs had been adopted by Badraiah Chetty as his children. Since, the plaintiffs had miserably failed to prove their claims, by sufficient evidence, the courts below had rightly come to the conclusion that the suit filed by the plaintiffs was devoid of merits. Since, it was clear that the sale had been made for the benefit of the family and as it had not been challenged, subsequently, in the manner known to law, the said sale cannot be held to be invalid, as alleged by the plaintiffs. In such circumstances, the second appeal filed by the appellants is liable to be dismissed, as it is devoid of merits. 30. In view of the submissions made by the learned counsels for the appellants, as well as the respondent, and in view of the records available, this Court is of the considered view that the appellants had not shown sufficient cause or reason to interfere with the concurrent findings of the Courts below. 31. Both the Courts below had arrived at their conclusions, based on the evidence available on record. Both the trial Court, as well as the first appellate Court, had rightly found that the sale made, as per the documents marked as Exhibit B.1, was valid, as it had not been challenged, in accordance with law. 32. It had also been found that the plaintiffs had not shown sufficient evidence to substantiate their claim that Badraiah Chetty was the absolute owner of the property in question and that the first and the second plaintiffs were the adoptive children of Badraiah Chetty. Further, from the evidence available on record, the Courts below had found that the defendant was in possession of the suit properties and therefore, the relief of permanent injunction, as prayed for by the plaintiffs in the suit, in O.S.No.101 of 1998, who are the appellants in the present second appeal, had been rightly rejected by the Courts below. 33. It had also been found that the appellants had not proved their claim that Chandrammal was the wife of Badraiah Chetty. 33. It had also been found that the appellants had not proved their claim that Chandrammal was the wife of Badraiah Chetty. Further, the Courts below had not accepted the claim of the appellants that the sale made under Exhibit B.1 was invalid, as it was made without the permission of the Court and as it was not made for the benefit of the family. Further, there is no substantial question of law arising for the consideration of this Court. As such, the second appeal filed by the appellants is devoid of merits and therefore, it is liable to be dismissed. Hence, it stands dismissed. No costs. Consequently, connected M.P.No.1 of 2010 is closed.