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2014 DIGILAW 3380 (MAD)

P. Krishnan v. Ranganayagi

2014-09-17

T.MATHIVANAN

body2014
Judgment 1. Challenge is made in this memorandum of second appeal to the judgment and decree, dated 11.2.2003 and made in A.S.No.59 of 2002 on the file of the learned Principal District Judge, Salem confirming the judgment and decree of the trial Court, dated 27.2.2002 and made in the suit in O.S.No.643 of 1994. 2. For easy reference and also for the sake of convenience, the respondents 1 and 2 may hereinafter be referred to as the plaintiffs 1 and 2 and the appellant and the third respondent herein be referred to as the defendants 1 and 2 wherever the context so require. 3. The respondents 1 and 2 have filed the above said suit in O.S.No.643 of 1994 seeking the relief of partition as against the defendants 1 and 2. 4. The second defendant has got no objection to grant the preliminary decree in respect of partition as claimed by the respondents 1 and 2. But the first defendant (appellant) alone has contested the suit. 5. On appreciation of the evidences both oral and documentary, the trial Court has granted a preliminary decree in respect of partition as claimed by the plaintiffs 1 and 2. 6. Challenging the correctness of the judgment of the trial Court, the first defendant has preferred an appeal in A.S.No.59 of 2002 on the file of the learned Principal District Judge, Salem. 7. After hearing both sides, the learned first appellate Judge has proceeded to dismiss the appeal confirming the judgment and decree of the trial court. Hence, the first defendant stands before this Court with this second appeal. 8. The Second Appeal came to be admitted on the following substantial question of law:- “When admittedly, the property forming the subject matter of the suit for partition had been validly conveyed as early as 22.6.1967 under Ex.B.2 in favour of the third party by the legal heirs of the original owner, namely, Perumayee Ammal, is the suit for partition maintainable without impleading the said buyer as a party to the suit and without praying for the relief of setting aside the sale.” Background facts:- 9. Admittedly, the suit properties were belonged to one Perumayee Ammal, who is the mother of the plaintiffs and the defendants. It is her self acquired property. Perumayee Ammal died intestate leaving behind the plaintiffs and the defendants as her only heirs. 10. Admittedly, the suit properties were belonged to one Perumayee Ammal, who is the mother of the plaintiffs and the defendants. It is her self acquired property. Perumayee Ammal died intestate leaving behind the plaintiffs and the defendants as her only heirs. 10. According to the plaintiffs, since they being the daughters of the deceased Perumayee Ammal, they are entitled to get their respective shares along with the defendants. They have claimed that after the death of Perumayee Ammal, the properties were enjoyed by the plaintiffs and the defendants jointly without any division. When they had asked the defendants to divide the suit properties into four equal shares and allot two such shares to them, the defendants had been giving evasive reply by postponing the partition. 11. As afore stated, the second defendant had filed a memorandum before the trial Court and thereby he had expressed his no objection in decreeing the suit as prayed for by the plaintiffs. 12. The first defendant has contended that after the death of Perumayee Ammal, the plaintiffs and the defendants and their father Perumal Gounder had sold the suit property with the thatched sheds to one Chandran s/o. Arumuga Pillai on 22.6.1967 for proper consideration of Rs.1500/-and in pursuant to the sale, the possession was also delivered to the purchaser Chandran on the date of sale itself. 13. After the execution of the sale deed on 22.6.1967 in favour of the said Chandran, neither the plaintiffs nor the defendants or their father had no manner of right, title and possession over the suit property. 14. In the interregnum, the defendants had repurchased the property from the said Chandran 25 years back through an unregistered sale deed. The unregistered sale deed is with the hands of the second defendant. Therefore, according to the first defendant, the suit properties are belonged to them by virtue of the re-purchase for a valuable consideration from the said Chandran. 15. He has also contended that after his purchase he had constructed a tiled house and a thatched house and the second defendant had also constructed two tiled houses and therefore, they have been in possession of their respective houses and excepting them, no one has got any manner of right and title over the suit property. 16. Based on the pleadings of the parties concerned, the trial court has formulated two issues in order to substantiate their respective cases. 16. Based on the pleadings of the parties concerned, the trial court has formulated two issues in order to substantiate their respective cases. 17. The first plaintiff had examined herself as P.W.1 and besides her, one more witness was examined on their behalf as P.W.2. During the course of their examination, Exs.A1 and A2 were marked. On the other hand, the first defendant had examined himself as D.W.1 and another witness was examined as D.W.2. During the course of their examination, Exs.D1 to D20 were marked. 18. As has been stated herein before, the learned trial Judge on evaluating the evidences adduced on behalf of both sides had proceeded to grant a preliminary decree in favour of the plaintiffs rejecting the claim made by the first defendant. 19. The learned first Appellate Judge was also in harmonious agreement with the conclusion of the trial Court and therefore, he had dismissed the appeal filed by the first defendant. 20. Now the judgment of the first appellate court has been challenged in this second appeal. 21. Heard Mr. S. Jayaraman, learned counsel appearing for the appellant and Mr. D. Sivakumaran, learned counsel appearing for the respondents. 22. The relationship of the parties to the suit are not disputed. Both sides have agreed that the suit properties are originally owned by their mother Perumayee Ammal. 23. While claiming partition by the plaintiffs in the suit properties as they being the daughters of deceased Perumayee Ammal, the first defendant alone has contended that the suit property was already sold to one Mr. Chandran for meeting the family expenses under Ex.B.2 and in pursuant to the said sale, the possession of the properties was also handed over to the said Chandran. 24. It is his specific contention that 25 years before, he along with the second defendant had repurchased the property and after their purchase they had/have been in possession and enjoyment of the same as the exclusive owners of the suit property and they had also put up their respective houses and now they have been residing in their respective houses and therefore, the plaintiffs are not entitled to claim any share in the suit property. 25. 25. The plaintiffs have contended that the transaction under Ex.B2 is a loan transaction and not a sale transaction and that as alleged by the first defendant, the possession was not handed over to the alleged purchaser Chandran instead it was retained by the family and as such they have been in possession and enjoyment of the suit property jointly. 26. The contentions of the plaintiffs have been admitted by the second defendant. Though the first defendant has contended that he along with the second defendant had repurchased the property under an unregistered sale deed, admittedly, such unregistered sale deed has not been produced before this Court. 27. As observed by the learned trial Judge, Section 54 of the Transfer of Property Act requires the sale, in the case of tangible immovable property of the value of one hundred rupees, can be made only by a registered instrument. 28. Since the alleged sale effected on 22.6.1967 under Ex.B.2 is disputed by the plaintiffs as well as by the second defendant, it is incumbent on the part of the first defendant to examine the purchaser Chandran, from whom, he along with the second defendant had repurchased the property under an unregistered sale deed, as claimed by the first defendant. 29. Unfortunately, the said Chandran was not examined on behalf of the first defendant. But the entire claim made by the plaintiffs have also been accepted by the first appellate court confirming the conclusion of the trial Judge. 30. However, Mr. S. Jayaraman, learned counsel appearing for the appellant has argued that since the suit property was sold in the year 1967 under Ex.B.2, without impleading the purchaser, the suit by the plaintiffs itself is not maintainable. 31. The learned first appellate Judge has formulated as nearly as six points for the disposal of the first appeal. They are :- a. Whether Ex.B.2 sale in favour of Chandran was an out-right sale for valid consideration, or in the nature of loan transaction? b. Whether the suit property was continued to be within the possession of family despite Ex.B2-sale deed? c. Whether the defendants have re-purchased the suit property from the said Chandran, under an unregistered document for Rs.2500/-? d. Whether the defendants are in continuous possession the suit property and have perfected the title by adverse possession even as co-owners? b. Whether the suit property was continued to be within the possession of family despite Ex.B2-sale deed? c. Whether the defendants have re-purchased the suit property from the said Chandran, under an unregistered document for Rs.2500/-? d. Whether the defendants are in continuous possession the suit property and have perfected the title by adverse possession even as co-owners? e. Whether the trial Court was right in passing the preliminary decree for partition? f. Whether appreciation of evidence and findings of trial court suffer from any infirmity calling for interference? 32. Points 1 to 6 were put together and answered in common with a finding that the claim of the plaintiffs that the suit property had been retained with the family, notwithstanding Ex.B.2. The alleged repurchase made by the defendants under an unregistered sale deed is neither proved nor substantiated. The contention of defendants that they have been in continuous possession of the suit property cannot be accepted for want of evidence and therefore, the trial Court had rightly passed the preliminary decree for partition and there is no reason to take a different view. The analysis of the evidences and the findings of trial court do not suffer from any infirmity calling for interference and that the first appeal is bound to fail. 33. The learned counsel appearing for the plaintiffs (respondents 1 and 2) has also adverted to that the alleged purchaser Chandran had never taken possession and that Ex.B.2 was not acted upon. 34. He has also argued that the alleged repurchase said to have been made by the first defendant was not proved. While advancing his arguments, he has also drawn the attention of this Court to paragraph 12 of the trial court judgment, wherein the learned trial Judge has made a pragmatic approach with regard to alleged sale as well as the repurchase. 35. The first defendant has also admitted in his evidence that the value of the suit property in the year 1967 was Rs.2/- per sq.ft. He has also admitted in his evidence that the suit property measures 8866 sq.ft. Hence, the value of the property during the alleged period of purchase i.e., 25 years back would atleast be Rs.17,732/-. 35. The first defendant has also admitted in his evidence that the value of the suit property in the year 1967 was Rs.2/- per sq.ft. He has also admitted in his evidence that the suit property measures 8866 sq.ft. Hence, the value of the property during the alleged period of purchase i.e., 25 years back would atleast be Rs.17,732/-. But strangely, D.W.1 in his evidence has stated that he had repurchased the property for a paltry sum of Rs.2500/-and therefore, in this connection, the learned counsel appearing for the plaintiffs has entertained a doubt with regard to the genuineness of the alleged repurchase made by the defendants. 36. This court has struck a balance between the submissions made on behalf of the plaintiffs as well as the defendants and having regard to the related facts and circumstances of the case, this Court is of considered view that it does not find any valid reason to interfere with the findings and conclusions of the courts below. 37. In the result, the second appeal is dismissed confirming the judgment and decree of the courts below. However, there will be no order as to costs.