Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 5096 (MAD)

Rajagopal v. P. Nirmala

2010-11-19

M.DURAISWAMY

body2010
Judgment :- 1. Second Appeal No.1047 of 2006 arises against the judgment and decree in A.S.No.20 of 2000 on the file of Subordinate Court, Sankari reversing the judgment and decree in O.S.No.147 of 1994 on the file of District Munsif Court, Sankari. The Second Defendant in the Suit is the Appellant, the First Respondent was the Plaintiff and the Respondents 2 to 4 were the Defendants 1, 3 and 4. The Plaintiff and the Respondents 2 to 4 were the Defendants 1, 3 and 4. The Plaintiff filed the Suit in O.S.No.147 of 1994 on the file of District Munsif Court, Sankari for partition and separate possession. 2. Second Appeal No.1048 of 2006 arises against the judgment and decree in A.S.No.21 of 2000 on the file of Subordinate Court, Sankari reversing the judgment and decree in O.S.No.232 of 2006 on the file of District Munsif Court, Sankari. The Plaintiff is the Suit is the Appellant, the First Respondent was the Second Defendant and the Respondents 2 to 4 were the Defendants 1, 3 and 4 in the Suit. The Plaintiff filed the Suit in O.S.No.232 of 2006 on the file of District Munsif Court, Sankari for declaration and injunction. 3. Since the dispute involved in both the Second Appeals are common, both the matters are taken up together and disposed of by this common judgment. 4. The brief case of the Appellant, who is the Plaintiff in O.S.No.232 of 1996 and the Second Defendant in O.S.No.147 of 1994 is as follows: (i) According to the Appellant, originally, the suit property is the ancestral joint family property of the Plaintiff, 1st Defendant and 4th Defendant. The First Defendant and the Third Defendant are the father and mother of the Plaintiff and Fourth Defendant. The Second Defendant is the brother of the First Defendant. The First Defendant executed a Settlement Deed on 9.3.1989 in favour of the Plaintiff and the Fourth Defendant styled as guardian of the minors. The Plaintiff and 4th Defendant were put in possession and enjoyment of the suit properties and they were in possession and enjoyment through the Third Defendant. The Defendants 1 and 3 have no right, title or interest over the suit properties as per the Settlement Deed. Therefore, it is the joint family property of the Plaintiff and Fourth Defendant. The Plaintiff and 4th Defendant were put in possession and enjoyment of the suit properties and they were in possession and enjoyment through the Third Defendant. The Defendants 1 and 3 have no right, title or interest over the suit properties as per the Settlement Deed. Therefore, it is the joint family property of the Plaintiff and Fourth Defendant. (ii) According to the Appellant, the Defendants who are close relatives colluded and conspired together to knock of the property, created a Sale Deed on 16.10.1988. The First Defendant has no right, title or interest over the suit property. Instead, he had executed a document as if he is also having a right and title over the same. The Third Defendant executed the document as if she is the natural guardian for the Plaintiff, then minor. The Third Defendant has no necessity or occasion to sell the suit property on behalf of the Plaintiff. In fact, when the natural guardian of the Plaintiff, the First Defendant is alive, the Third Defendant has no right to execute the document in law. The Sale Deed was not for the benefit of the Plaintiff, who was then a minor. Since the Third Defendant has no right to sell the suit property in law, the Sale Deed is ab initio void and not binding on the Plaintiff. Since the Suit is filed within three years from the date of attaining majority, the Suit is not barred by limitation. (iii) According to the Appellant, the Plaintiff is entitled to half share in the suit properties. The Sale Deed in favour of the Second Defendant by Defendants 1, 3 and 4 is not binding on the Plaintiff. In these circumstances, the Appellant prayed for dismissal of the Suit in O.S.No.147 of 1994 and decree in O.S.No.232 of 1996. 5. The brief case of the Respondents, in both the Suits are as follows: (i) According to the Respondents, the Defendants 1, 3 and 4 are none other than father, mother and brother of the Plaintiff. The Plaintiff’s father, the First Defendant, had one son and five daughters. Originally, the suit property is the self acquired property of the Defendants 1 and 2’s mother Papayee @ Perymayee Ammal. The said Perumayee Ammal had executed a Sale Deed in favour of her sons on 28.5.1958. Therefore, it is the separate property of her six sons. The Plaintiff’s father, the First Defendant, had one son and five daughters. Originally, the suit property is the self acquired property of the Defendants 1 and 2’s mother Papayee @ Perymayee Ammal. The said Perumayee Ammal had executed a Sale Deed in favour of her sons on 28.5.1958. Therefore, it is the separate property of her six sons. (ii) According to the Respondents, the First Defendant indebted to several persons including one Perumal, Periyasamy and Sellandi. The First Defendant, in order to defraud the lawful claim of the creditors, executed a settlement in favour of his daughter Poongodi. (iii) According to the Respondents, to discharge the family debts of the Plaintiff and for education and employment, the Plaintiff’s father, 1st Defendant, Defendant 3 and 4 on behalf of the Plaintiff had sold the suit property to the Second Defendant. The said sale was only for the purpose of family expenses and for the welfare of the Plaintiff and the Fourth Defendant. The sale amount was only for the benefit of the family and for the welfare of the Plaintiff and her brother, the Fourth Defendant. The Plaintiff has not filed any Suit against them and not added all the properties of her father for proper and complete adjudication. The Plaintiff has not filed any Suit for cancellation of deed. (iv) According to the Respondents, the suit property absolutely belong to the Second Defendant and the Plaintiff cannot ask for partition. The Suit is hit under Order 2, Rule 2, C.P.C. The Appellant if aggrieved ought to have made all the claims by way of making a counter claim at the time of filing Written Statement and ought to have claimed all the reliefs in the Suit. Having waived such a claim in the earlier Suit, the Plaintiff in law is precluded from making such a claim by way of separate Suit. In these circumstances the Respondents prayed for decree in O.S. No.147 of 1994 and dismissal of O.S. No.232 of 1996. 6. Before the Trial Court, on the side of the Appellant, D.W.1 to D.W.3 were examined and 7 documents, Exs.B-1 to B-7 were marked, on the side of the First Respondent, she was examined as P.W.1 and 9 documents Exs.A-1 to A-9 were marked. 7. 6. Before the Trial Court, on the side of the Appellant, D.W.1 to D.W.3 were examined and 7 documents, Exs.B-1 to B-7 were marked, on the side of the First Respondent, she was examined as P.W.1 and 9 documents Exs.A-1 to A-9 were marked. 7. The Trial Court after taking into consideration the oral and documentary evidence of both sides dismissed the Suit in O.S.No.147 of 1994 and decreed the Suit in O.S.No.232 of 1996 in respect of Item No.1 of the suit property and dismissed the Suit in respect of Item Nos.2 to 4. 8. Aggrieved over the judgment and decree of the Trial Court, the First Respondent herein filed Appeal in A.S.No.20 of 2000 and 21 of 2000 on the file of Subordinate Court, Sankari and the Lower Appellate Court after taking into consideration the materials available on record, reversed the judgment and decree and passed a preliminary decree and allowed the Appeals and modified the judgment and decree of the Trial Court by decreeing the Suit in respect of 1/2th share of the Plaintiff only. 9. Aggrieved over the judgment and decrees of the Lower Appellate Court, the Appellant has filed the above two Second Appeals. 10. Heard Mr. N. Manoharan, learned Counsel appearing for the Appellant, Mr. P. Valliappan, learned Counsel appearing for the First Respondent and Mr. R. Santhanam, learned Counsel appearing for the Respondents 2 to 4. 11. At the time of admission of the above Second Appeal, the following substantial question of law arose for consideration: “Whether the Plaintiff’s claim is maintainable on the basis of the Settlement Deed-Ex.A-1 dated 9.3.1989, in the absence of any materials to prove the factum of acceptance of the gift by the done as required under Section 123 of the Transfer of Property Act, 1882?” 12. The Appellant has also raised the following substantial questions of law in both the Second Appeals: (a) Is there any absolute prohibition to deal with the Minor’s property under Section 8 of the Hindu Minority and Guardianship Act, 1956, especially when the Hindu Joint Family by itself is a legal entity capable of acting through its Karta and other adult members of the family and further Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where Hindu Joint Family is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint family property? (b) Whether the Suit for partition is maintainable in law especially when the Plaintiff being co-vendor in the Sale Deed executed in favour of the 2nd Defendant, has not chosen to file a Suit to set aside the said Sale Deed on payment of Ad Valorem Court Fees under Section 40 of the Court Fees Act, before getting further relief? 13. On a careful consideration of the materials available on record and on the submissions made by the respective Counsel, it could be seen that under Ex.A-1-Settlement Deed dated 9.3.1989, the Second Respondent settled an extent of 42 cents out of the total extent of 2.64 acres in favour of the First Respondent and the Fourth Respondent. 14. According to the First Respondent, the property is not the joint family property and it is only a separate property of the Second Respondent. Therefore, he has got every right to settle the property in their favour. It is not in dispute that the properties settled under Ex.A-1 is an undivided property and the Second Respondent has got only undivided interest in the property. 15. Under Section 256 of the Hindu Code, no coparcener can dispose of his undivided interest in coparcenary property by gift and such transaction being void altogether. However, under the said provision, a coparcener can make a gift of his interest with the consent of other coparceners. Similarly, a coparcener may dispose of his separate or self-acquired property in any way he likes. 16. Under Section 258 of the Code, no coparcener can alienate even for value, his undivided interest without the consent of the other coparceners, unless the alienation be for legal necessity or for payment by a father of antecedent debts. 17. Similarly, a coparcener may dispose of his separate or self-acquired property in any way he likes. 16. Under Section 258 of the Code, no coparcener can alienate even for value, his undivided interest without the consent of the other coparceners, unless the alienation be for legal necessity or for payment by a father of antecedent debts. 17. However, the First Respondent, in her Plaint did not say anything with regard to her joint possession in the property. On the date of execution of Ex.A-1-Settlement Deed, the First Respondent and the Fourth Respondent were minors. Even in their evidence, they admitted that they came into possession of the property only through their mother. However, the mother of the First and Fourth Respondents was no examined to clarify with regard to possession of the First Respondent. Further, the First Respondent also failed to prove her possession by any documentary evidence. Since the First Respondent failed to prove that the possession was handed over to her at the time of Ex.A-1-Settelment Deed, there is nothing on record to show that the said document was acted upon. The Trial Court rightly came to the conclusion that the First Respondent is not entitled to claim any right under Ex.A-1-Settlement Deed. 18. Coming to the next question of law i.e., when the First Respondent being co-vendor in the Sale Deed, executed in favour of the Plaintiff, whether a Suit without a prayer to set aside the Sale Deed can be maintained? It is not in dispute that under Ex.A-1-Settlement Deed, the Second Respondent, the First Respondent’s mother and her brother had sold the property. 19. The learned Counsel appearing for the Appellant submitted that the First Respondent ought to have filed the Suit to set aside the sale made under Ex.A-5-Sale Deed dated 16.5.1989. In support of his contention, he relied upon the following judgments: (i) Nagappan v. Ammasai Gounder and others, 2004 (13) SCC 480 , wherein the Hon’ble Apex Court held that where a minor was eo nomine party to the sale of his property effected without obtaining permission of Court under Section 8(2), Suit for possession of the property filed by him on attaining majority would be maintainable only if the same is preceded by his Suit for cancellation of the Sale Deed. (ii) Ramadas Menon v. Sreedevi, 2004 (14) ILD 257, wherein a Full Bench of Kerala High Court held that without setting aside the alienation or sale, no relief can be obtained by a minor or a person claiming under him. (iii) Prem Singh and other v. Birbal and others, 2006 (3) TLNJ 377, wherein the Hon’ble Apex Court held that if a deed was executed by the Plaintiff when he was a minor and it was void, he had two options to file a Suit to get the property purportedly conveyed thereunder. He could either file the Suit within 12 years of the deed or within 3 years of attaining majority. (iv) Thamma Venkata Subbamma (dead) by L.R. v. Thamma Rattamma and others, AIR 1987 SC 1775 , wherein the Hon’ble Apex Court held that a coparcener can make a gift of his undivided interest in the coparcenary property to another coparcener or to a stranger with the prior consent of all other coparceners. (v) Sri Narayan Bal and others v. Sridhar Sutar and others, 1996 (8) SCC 54 , wherein the Hon’ble Apex Court held that a kartha or adult members of a joint Hindu family can sell the joint family property involving undivided interest of minors of the family therein. In such a case, under Section 8 of Hindu Minority and Guardianship Act, 1956 have no application to such sale. (vi) Kasireddy Ramayamma v. Kasireddy Rama Rao, AIR 2000 AP 29 , wherein it is held as follows: 13. …It is also well accepted that no relief can be granted to a Defendant party, in spite of the Plaintiff failing to prove or establish his claim. Therefore, under the circumstances, the bar is staring against a party Defendant in making an attempt to avoid a document to which he is a party by taking the mere plea of fraud without the same being declared void in a Suit filed under Section 31 of the Specific Relief Act, more so, when the apprehension is writ large on the allegations in the Plaint where the document id relied on and used against the Defendant.” (vii) Kanna Gounder and another v. Arjuna Gounder, AIR 2003 Mad. 157 , wherein this Court held that gift by a coparcener without the consent of other coparceners, the gift is held to be invalid. 20. 157 , wherein this Court held that gift by a coparcener without the consent of other coparceners, the gift is held to be invalid. 20. The learned Counsel appearing for the Appellant relied upon Section 31 of the Specific relief Act which reads as follows: 31. When cancellation may be ordered.- (1) Any person against whom a Written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the Court may, in its direction, so adjudge it and order it to be delivered up and challenged.” 21. Countering the submission made by the learned Counsel appearing for the Appellant, learned Counsel appearing for the First Respondent submitted that since the Sale Deed executed on behalf of the minor in law is ab initio void and not binding on the Plaintiff, she can ignore the Sale deed and no Suit for setting aside the sale is required. In support of his contention, he relied upon the following judgments: (i) Madhegowda (D) by L.Rs. v. Ankegowda (D) by L.Rs. and others, 2002 (4) CTC 51, wherein the Hon’ble Apex Court held that an invalid alienation is not required to be set aside by filing Suit or judicial proceedings. The minor on attaining majority can repudiate transfer as and when occasion arises. Filing Suit asserting his title by minor after attaining majority is sufficient indication of repudiation. (ii) Rajalakshmi and others v. Minor Ramachandran and another, AIR 1967 (MS) 113, wherein this Court held that as per Section 11 of the Hindu Minority and Guardianship Act, no person would be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his or her being the du facto guardian of the minor. The alienation by the putative father of the suit properties which had been settled on the minor were void and could not bind the minors. (iii) T. Krishnamoorthy Pillai v. Mangalam, 1998 (1) CTC 306 , wherein this Court held that the validity of sale of minor’s property by mother when father was alive without permission of Court, the alienation by mother is held to be void. (iii) T. Krishnamoorthy Pillai v. Mangalam, 1998 (1) CTC 306 , wherein this Court held that the validity of sale of minor’s property by mother when father was alive without permission of Court, the alienation by mother is held to be void. (iv) Kanchi Kamamma and others v. Yerramsetti Apanna, AIR 1973 AP 201 , wherein it has been held that what is irregular may be ratified but not what is void and illegal. (v) Madhegowda (D) by L.Rs v. Ankegowda (D) by L.Rs. and others, 2002 (4) CTC 51: AIR 2002 SC 215 , wherein the Hon’ble Apex Court held that in a case where sale of minors property by sisters acting as de facto guardian is in contravention of Section 11 and therefore, is per se invalid. Transferee of such sale does not acquire any interest in property. Therefore, invalid transfer is required to be transfer by filing Suit. 22. According to the Appellant, the first item of the suit property was originally self-acquired property of his mother Papayee @ Perymayee Ammal and she was in long and continuous exclusive possession and enjoyment of the property and treated them as her self-acquisition. The said Papayee @ Parymayee Ammal have six sons i.e., the Appellant, the Second Respondent and 4 other sons. She had executed a settlement in favour of her sons on 28.5.1958 and her 6 sons partitioned their properties and they are enjoying the same separately. 23. According to the Appellant, the First Respondent sold the first item of the suit property to him for family expenses and for legal necessity. Therefore, the said deed is binding on all the Respondents. The First Respondent contended that no amount was paid to her from the sale proceeds. 24. It is not in dispute that the First Respondent was an eo nomine party to Ex.A-5-Sale Deed dated 16.10.1989. The suit property is not the Hindu Joint family property, since the property came from female descendant. The suit property is an undivided property. The First Respondent has not pleaded either in the Plaint in O.S.No.147 of 1994 or in the Written Statement in O.S.No.232 of 1996 with regard to the joint possession in respect of the suit property. On the contrary, the Appellant deposed that the suit property is in her possession. The suit property is an undivided property. The First Respondent has not pleaded either in the Plaint in O.S.No.147 of 1994 or in the Written Statement in O.S.No.232 of 1996 with regard to the joint possession in respect of the suit property. On the contrary, the Appellant deposed that the suit property is in her possession. However, in order to substantiate and prove the possession of the First Respondent, she did not examine her mother. That apart, the First Respondent also failed to produce any document with regard to her possession in respect of the suit property. The Appellant had purchased 1/12th undivided share under Ex.A5-Sale Deed. Therefore, since the suit property was not the separate property of the First Respondent, no permission is required under Section 8 of the Hindu Minority and Guardianship Act. 25. On a perusal of Ex.A-5-Sale Deed, it could be seen that the Sale Deed in favour of the Appellant was executed not only by her father but also by her mother. According to the First Respondent the Suit was not sold for her benefit. The First Respondent also contended that she was brought up by her uncle Govindasamy and not by her father. However, the said Govindasamy was not examined to prove her contention. 26. The Trial Court rightly found that the suit property was sold to the Appellant for the benefit of the family and for the benefit of the First Respondent who was a minor then. The Trial Court rightly found that Ex.A-5-Sale Deed dated 16.10.1889 is valid and binding on the First Respondent. However, the First Respondent filed the Suit for Partition and separate possession. Applying the Principles laid down in the judgments relied on by the Counsel for the Appellant, since the First Respondent was an eo nomine party to Ex.A-5 Sale Deed dated 16.10.1989, as per the judgments set aside the Sale Deed. 27. With regard to the judgment relied upon by the Counsel for the First Respondent are concerned, the facts and circumstances of the case differs from the case on hand. Therefore, the judgments relied on by the learned Counsel for the First Respondent are not applicable to the facts and circumstances of the present case. 28. In the case on hand, the First Respondent did not file the Suit to set aside Ex.A-5-Sale Deed. Therefore, the judgments relied on by the learned Counsel for the First Respondent are not applicable to the facts and circumstances of the present case. 28. In the case on hand, the First Respondent did not file the Suit to set aside Ex.A-5-Sale Deed. Where the document is executed by a Manager of the family and it is not binding on the family, the minor or other member can ignore the transaction and recover possession of the property. There is no dispute whatever that a transaction entered into by guardian relating to the minor’s properties is not void and if the minor does not sue to set aside within three years of his attaining majority, it becomes valid under Article 44 of the Limitation Act. There can be a distinction whether the father as a guardian of the minor and not as the manger of the joint family executes the document. Therefore, if the minor is eo nomine party to a Sale Deed or other document of alienations, he may sue for the cancellation of that document. In the present case, the First Respondent who was a minor eo- nominee party, did not question Ex.A5-Sale Deed and she filed the Suit only for partition and separate possession. On this ground also the Suit filed by the First Respondent is liable to be dismissed. 29. Since it has been held that Ex.A5-Sale Deed dated 16.10.1989 is valid in respect of the first item of the suit property, the Appellant is entitled to the declaratory relief sought for in O.S.No.232 of 1996 in respect of the first item of the suit property. The Trial Court rightly decreed the Suit filed by the Appellant in O.S.No.232 of 1996 in respect of first item of the suit property and dismissed the Suit in respect of item Nos.2 and 4. In theses circumstances, the Lower Appellate Court ought not have reversed the judgment and decrees of the Trial Court. 30. In theses circumstances, the relevant substantial questions of law are decided in favour of the Appellant. The judgment and decrees of the Lower Appellate Court made in A.S.Nos.20 of 2000 and 21 of 2001 on the file of Subordinate Court, Sankari are set aside. The judgment and decree of the Trial Court made in O.S.Nos.147 of 1994 and 232 of 1996 on the file of the District Munsif Court, Sankari are restored. The judgment and decrees of the Lower Appellate Court made in A.S.Nos.20 of 2000 and 21 of 2001 on the file of Subordinate Court, Sankari are set aside. The judgment and decree of the Trial Court made in O.S.Nos.147 of 1994 and 232 of 1996 on the file of the District Munsif Court, Sankari are restored. The above Second Appeals are allowed. Consequently, connected Miscellaneous Petition is closed. However, there shall be no order as to costs.