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2014 DIGILAW 4516 (MAD)

A. Arokyadoss v. V. Radhakrishnan

2014-12-03

B.RAJENDRAN

body2014
Judgment 1. The sole defendant in O.S. No. 38 of 2005 on the file of Principal Subordinate Judge, Villupuram is the appellant in this second appeal. The appellant is aggrieved by the decree and judgment dated 14.09.2009 passed in A.S. No. 6 of 2009 on the file of learned Principal District Judge, Villupuram reversing the judgment and decree dated 29.11.2008 made in O.S. No. 38 of 2005 on the file of the learned Principal Subordinate Judge, Villupuram. 2. For the sake of convenience, the parties shall be referred to as "Plaintiffs" and "Defendant" as has been arrayed before the trial court. 3. The Plaintiffs have filed the suit contending that their grand father Arumuga Gounder was the owner of the suit property and other properties. The said Arumuga Gounder had three sons namely Venkatasamy, Panchatsaram and Kandasamy. The plaintiffs are sons of Venkatasamy, the eldest son of Arumuga Gounder. After the demise of Arumuga Gounder, his three sons have divided the properties left by his father by entering into a registered partition deed dated 30.11.1977. At the time when the partition deed came to be executed, the plaintiffs were minors and in the partition, the plaintiffs were represented by their father and natural guardian Venkatasamy. As per the partition deed, "A" schedule properties were allotted to Venkatasamy and the plaintiffs herein. The property, which is the subject matter of the suit is described as first item in "A" Schedule in the partition deed, which is comprised in Survey No.35/3 measuring 1.82 cents. According to the plaintiffs, the said partition deed was acted upon and the parties to the partition have been in possession and enjoyment of their respective shares. After the plaintiffs attained majority, they, along with their father, executed a registered sale deed dated 13.09.1999 in favour of one V. Devi by which land measuring 30 cents out of 1.82 cents have been alienated. According to the plaintiffs, notwithstanding the above sale, their father Venkatasamy had unilaterally sold 33 cents of land in the year 2001, without consulting the plaintiffs, to one Karthikeyan, son of his younger brother. However, the plaintiffs did not raise any objection inasmuch as the plaintiffs' father also has a share in the property and that the plaintiffs were under the impression that the sale made to Karthikeyan by their father is from and out of the share which he is entitled to. However, the plaintiffs did not raise any objection inasmuch as the plaintiffs' father also has a share in the property and that the plaintiffs were under the impression that the sale made to Karthikeyan by their father is from and out of the share which he is entitled to. It is also the case of the plaintiffs that their father mortgaged the suit property with Agriculture Development Bank for purchase of tractor. While so, on 20.08.2003, the plaintiffs' father died and it is the plaintiffs who have discharged the loan availed for purchase of tractor. While facts are so, the defendant, who is an utter stranger to the suit property, attempted to interfere with the right of the plaintiffs over the suit property by making a false claim that their father had sold away the suit property in his favour. According to the plaintiffs, even if there was a sale in favour of the defendant, it will not bind the plaintiffs in any manner inasmuch as the plaintiffs father has no right to convey the suit property in favour of the defendant. This is more so that the father of the plaintiffs' had already sold a portion of the property which fell to his share in favour of one Karthikeyan. Therefore, the plaintiffs have filed the suit for the relief of declaration to declare that they are the absolute owner of the suit property and for a consequential injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit property by the plaintiffs. 4. The defendant resisted the suit by filing a written statement contending inter alia that it is not correct to say that the plaintiffs' father had no saleable right over the suit property. According to the defendant, the plaintiffs' father Venkatasamy intended to sell the suit property to him for Rs.2,60,000/-, but the plaintiffs' father insisted to mention only Rs.1,22,500/- in the sale deed towards sale price. According to such request made by the father of the plaintiffs' the defendant mentioned only Rs.1,22,500/- in the sale deed. However, the plaintiffs' father Venkatasamy had executed a receipt dated 12.06.2002 for Rs.2,60,000/-and the balance amount was paid to him by cash. Such receipt dated 12.06.2002 was not only signed by the father of the plaintiffs, but also by the third plaintiff Thanigaivel along with one independent witness. However, the plaintiffs' father Venkatasamy had executed a receipt dated 12.06.2002 for Rs.2,60,000/-and the balance amount was paid to him by cash. Such receipt dated 12.06.2002 was not only signed by the father of the plaintiffs, but also by the third plaintiff Thanigaivel along with one independent witness. Therefore, it is futile on the part of the plaintiffs' to contend that they are not aware of the sale made by their father or such sale will not bind them in any manner. Therefore, the sale made in favour of the defendant is valid. The defendant is a bonafide purchaser for proper and correct value. From the date of execution of the sale deed, the defendant is in possession and enjoyment of the suit property. The allegation that the plaintiffs' continued to remain in possession of the suit property is false. 5. Before the trial court, on behalf of the plaintiffs, the first plaintiff Radhakrishnan examined himself as PW1, besides two other witnesses were examined as PWs 2 and 3 and Exs. A1 to A38 have been marked. On behalf of the defendant, the defendant examined himself as DW1 along with another witness as DW2 and Exs. B1 to B26 have been marked. The trial court, on appreciation of the oral and documentary evidence held that the sale made in favour of the defendant is with the knowledge and consent of the plaintiffs and therefore, the relief of declaration cannot be granted. Accordingly, the trial court dismissed the suit. Aggrieved by the same, the plaintiffs have filed A.S. No. 6 of 2009 before the first appellate Court. The first appellate Court reversed the decree and judgment passed by the trial court, which resulted in the filing of the present second appeal. 6. At the time of admission of this second appeal, the following substantial questions of law have been framed as arisen for consideration, they are:- (i) Whether the learned District Judge is correct in granting the decree for declaration and injunction, when it is an admitted fact that under Ex.B1, the defendant had purchased the property from the plaintiffs' father in the year 2002? (ii) Whether it is open for the plaintiffs to file a suit for declaration and injunction when they are aware of the fact that in the year 2002 itself, the property was sold in favour of the defendant? (ii) Whether it is open for the plaintiffs to file a suit for declaration and injunction when they are aware of the fact that in the year 2002 itself, the property was sold in favour of the defendant? (iii) Whether the plaintiffs are estopped from praying for a declaration and injunction when one of the plaintiff's is an attestor to document Ex.B1? 7. As far as the third substantial question of law is concerned, it is wrongly mentioned as Ex.B1 and it should have been Ex.B2 inasmuch as only in Ex.B2, receipt, the third plaintiff signed as an attestor along with his father. Therefore, the third question of law is hereby re-casted as follows:- "(iii) Whether the plaintiffs are estopped from praying for a declaration and injunction when one of the plaintiff's is an attestor to document Ex.B2.?" 8. The learned counsel appearing for the appellant would vehemently contend that the plaintiffs' are estopped from filing the suit inasmuch as they have full knowledge about the sale made in favour of the defendant. On the date of execution of the sale deed dated 12.06.2002, Ex.B1, a receipt dated 12.06.2002, Ex.B2 was executed by the plaintiffs' father acknowledging receipt of the entire sale consideration of Rs.2,60,000/-even though in Ex.B1, the sale price was mentioned as Rs.1,22,500/- at his request. Ex.B2 was not only signed by the plaintiffs' father Venkatasamy, but also the third plaintiff Thanigaivel as an attesting witness. Having signed such a receipt and received the sale amount, it cannot be contended that the plaintiffs' have no knowledge about the sale in favour of the defendant. In fact, the plaintiffs have issued a notice dated 01.11.2003, Ex.B4 calling upon the defendant to handover the vacant possession of the suit property. On receipt of Ex.B4, the defendant issued a reply notice dated 21.11.2003 under Ex.B5 narrating the above facts. After remaining silent for about three years, at the fag end of completion of the three years period from the date of issuing the reply, the plaintiffs have instituted the suit. In the meantime, on the basis of the sale made in favour of the defendant, the defendant also mutated the revenue records and paying the tax in his name, which could be evident from Ex.B6 to B10 receipts. In the meantime, on the basis of the sale made in favour of the defendant, the defendant also mutated the revenue records and paying the tax in his name, which could be evident from Ex.B6 to B10 receipts. Therefore, according to the learned counsel for the defendant/appellant, the plaintiffs/respondents have approached the trial court with unclean hands and filed the suit only to harass him. The trial court, on appreciation of the above facts has rightly dismissed the suit. The first appellate Court, however, on erroneous appreciation of the facts of the case, reversed the well considered judgment and decree passed by the Court below and prayed for allowing the second appeal. 9. The learned counsel appearing for the plaintiffs/respondents would justify the decree and judgment passed by the first appellate Court. According to the counsel for the plaintiffs, the first appellate Court, on appreciating Ex.B1, sale deed, would contend that the recitals thereof would indicate that the property covered therein was allotted to the father of the plaintiffs' on his own behalf and on behalf of the plaintiffs' who were minors therein, therefore, the alienation of the suit property by the Kartha of the joint family Property without the knowledge and consent will not bind the plaintiffs in any manner. As regards Ex.B2, the first appellate Court held that it was a document cooked up for defending the suit and it cannot be relied upon. Ex.B2 would only indicate that the sale deed was not properly executed in favour of the defendant. Therefore, the learned counsel for the plaintiffs would contend that the sale made in favour of the defendant under Ex.B1 and the receipt under Ex.B2 will not bind the plaintiffs in any manner and they have prayed for dismissal of the second appeal. 10. I heard the learned counsel for both sides and perused the documents made available on record. I have also perused the original documents viz., Exs. B1, sale deed dated 12.06.2002, Ex.B2, receipt dated 12.06.2002, Ex.B4, legal notice sent on behalf of the plaintiffs and Ex.B5, reply notice sent by the defendant, among other documents made available. 11. Admittedly, the suit property along with other properties fell to the share of Mr. Venkatasamy, father of the plaintiffs, in a family partition dated 30.11.1977. B1, sale deed dated 12.06.2002, Ex.B2, receipt dated 12.06.2002, Ex.B4, legal notice sent on behalf of the plaintiffs and Ex.B5, reply notice sent by the defendant, among other documents made available. 11. Admittedly, the suit property along with other properties fell to the share of Mr. Venkatasamy, father of the plaintiffs, in a family partition dated 30.11.1977. At the time of execution of the partition deed dated 30.11.1977, the plaintiffs were minors and therefore, they were represented by their father and natural guardian Mr. Venkatasamy. It is an admitted fact that out of the entire extent of the property allotted to the plaintiffs' father, property measuring 30 cents was sold in favour of one Devi by a sale deed dated 30.09.1999, but it was not questioned by the plaintiffs. Subsequently, yet another sale deed was executed by the plaintiffs' father in favour of Karthikeyan, his brother's son, in respect of property measuring 33 cents, and it was also not questioned by the plaintiffs. This would indicate that all along the father of the plaintiffs was dealing with the properties settled in his favour and that is the reason why, the plaintiffs have not questioned the sale made in favour of Devi and Karthikeyan mentioned above. The plaintiffs have thus tacidly approved the sale made by their father in favour of the above said two persons without questioning it. In fact, even as per the admission of the plaintiffs, their father mortgaged the property for purchase of a tractor for tilling the agriculture lands. Therefore, it is evident that all along, the father of the plaintiffs, as kartha of the joint family property, dealt with the properties settled in his favour as well as the plaintiffs, who were minors by then. It is also not the case of the plaintiffs that the suit property was sold by their father to the defendant without any legal necessity. The plaintiffs also did not contend that the sale made by their father to the defendant was improper or their father indulged in immoral activities which resulted in the sale of the suit property in favour of the defendant. Therefore, the plaintiffs cannot question the sale deed executed in favour of the defendant under Ex.B1 on 12.06.2002. 12. The plaintiffs also did not contend that the sale made by their father to the defendant was improper or their father indulged in immoral activities which resulted in the sale of the suit property in favour of the defendant. Therefore, the plaintiffs cannot question the sale deed executed in favour of the defendant under Ex.B1 on 12.06.2002. 12. As regards the sale deed dated 12.06.2002 under Ex.B1 in favour of the defendant, it was questioned by the plaintiffs on the ground that they were not aware of the execution of such sale deed by their father and such sale in favour of the defendant adversely affects their right and interest in the suit property. Therefore, the plaintiffs have sent a legal notice on 01.11.2003, Ex.B4, calling upon the defendant to handover the vacant possession of the suit property as it was sold to him for a meager sale consideration. On receipt of this notice, the defendant sent a reply notice dated 21.11.2003, Ex.B5, stating that the sale was validly executed and on the same day of execution of the sale deed, a receipt dated 12.06.2002, Ex.B2 was executed acknowledging the receipt of the entire sale price. In Ex.B2, the father of the plaintiffs, the third plaintiff Thanigaivel as well as one independent witness have signed. However, on receipt of this reply notice indicating the execution of Ex.B2, the plaintiffs did not send any rejoinder or filed the suit immediately. At the fag end of completion of the three years period, the suit came to be filed by the plaintiffs. Even though the plaintiffs called upon the defendant to hand over the possession of the suit property, they have not taken any step to cancel the sale deed executed under Ex.B1. The plaintiffs have also did not sought for a declaratory relief to declare that the sale deed under Ex.B1 dated 12.06.2002 is null and void. Even in the suit, the plaintiffs did not whisper anything about Ex.B2, receipt dated 12.06.2002, which was executed by father of the plaintiffs along with the third plaintiff, Ex.B4, legal notice sent by plaintiffs on 01.11.2003 or Ex.B5, reply notice sent by the defendant on 21.11.2003. This attitude of the plaintiffs is totally uncalled for and it needs to be taken note of by this Court. In this context, it is relevant to extract the contents of Ex.B2, which reads thus:- “TAMIL” 13. This attitude of the plaintiffs is totally uncalled for and it needs to be taken note of by this Court. In this context, it is relevant to extract the contents of Ex.B2, which reads thus:- “TAMIL” 13. Thus, it is evident from Ex.B2 that on the same day of execution of Ex.B1, sale deed dated 12.06.2002, the father of the plaintiffs' acknowledged the receipt of Rs.2,60,000/- being the actual sale price even though only a sum of Rs.1,22,500/- alone was indicated in Ex.B1, sale deed dated 12.06.2002. When the third plaintiff signed Ex.B2, it cannot be said that the plaintiffs have no knowledge about the sale made in favour of the defendant. Further, in Ex.B5, reply notice dated 21.11.2003, the defendant stated about execution of receipt, Ex.B2, however, the plaintiffs have not sent any rejoinder repudiating the execution of Ex.B2, receipt. Therefore, I am of the view that the plaintiffs have knowledge about execution of the sale deed in favour of the defendant especially when the third plaintiff signed as an attestor to Ex.B2, sale deed. In such circumstances, the plaintiffs are estopped from filing the suit for declaration and injunction. Therefore, I hold that the substantial question of law No. 3 is answered in favour of the defendant/appellant. 14. The learned counsel appearing for the plaintiffs/respondents relied on the following decisions in support of their case, they are (i) (M.V.S. Manikayala Rao vs. M. Narasimhaswami and others) AIR 1966 Supreme Court 470 (1) for the proposition that the purchaser of a co-parcener's undivided interest in joint family property is not entitled to possession of what he has purchased. His only right is to sue for partition of the property and ask for allotment of a share in his favour which, on partition, might fall to the share of the co-parcener whose share he has purchased. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession and the alinee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of or interest in the family property. The purchaser does not become a tenant in common with the other members of the joint family. He is not entitled to joint possession and the alinee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of or interest in the family property. (ii) (Gajura Vishnu Gosavi vs. Prakash Nanasaheb Kamble and others) 2009 (5) CTC 380 to contend that possession cannot be handed over to vendee unless property is partitioned either by decree of court in partition suit or by settlement among other co-sharers (iii) (Periasamy Muthiriar vs. Palaniammal) 1976 II MLJ 347 for the proposition that the only right of a co-parcener's interest in joint family property is to sue for a partition. (iv) (Rohit Chauhan vs. Surinder Singh and others) (2013) 9 Supreme Court Cases 419 to contend that so long as on partition a share of ancestral property remains in the hands of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the co-parcenery property treating it to be his separate property. 15. When we analyse the aforesaid decisions relied on by the learned counsel for the plaintiffs/respondents, it is clear that they only support of the case of the defendant/appellant. In the present case, the question of co-parcenery right does not arise inasmuch as, as mentioned above, the father of the plaintiffs' dealt with the properties allotted to him in the family partition for himself and the minor plaintiffs as a separate property and caused alienation thereof. Such alienation made by him have not been questioned by the plaintiffs. Even the property owned by the father was subjected to mortgage for purchase of a tractor for tilling the land, which is for a legal necessity. The status and character of the property as joint family property ceased to exist when once the father of the plaintiffs caused alienation of portion of the property in favour of one Devi and Karthikeyan and it was also not questioned by the plaintiffs. Such being the case, the argument that the sale made in favour of the defendant/appellant is invalid cannot be accepted. Such being the case, the argument that the sale made in favour of the defendant/appellant is invalid cannot be accepted. In fact, in the decision of the Honourable Supreme Court rendered in Rohit Chauhan's case mentioned supra, it was categorically held that so long as on partition a share of ancestral property remains in the hands of a single person, it has to be treated as a separate property and such a person shall be entitled to dispose of the co-parcenery property treating it to be his separate property. In the present case, the properties were treated as exclusive property of the father of the plaintiffs, even otherwise, as kartha also, he has every right to dispose of it. In fact, the sale made in favour of the defendant/appellant was also accepted and attested by the third plaintiff Thanigaivel. While so, it is futile on the part of the plaintiffs/respondents to contend that there was a joint family status in existence especially when the father of the plaintiff's, even as kartha dealt with the alienation for a legal necessity. 16. The learned counsel for the defendant/appellant relied on the decision of the Honourable Supreme Court in the case of (Manibhai and others vs. Hemraj and others) (1990) 3 Supreme Court Cases 68 wherein it was held that when the alienation of joint family is for a legal necessity by the father to satisfy the debts contracted or even for his personal benefit it is binding on their sons on the basis of doctrine of pious obligation if the alienation is not avyavharik or tainted with immorality or illegality. Further, for judging such validity of transaction, each transaction should be independently examined. In the present case, if the circumstances under which the present sale in favour of the defendant is examined, it is clear that the third plaintiff Thanigaivel attested the receipt for payment of the sale consideration along with his father. Therefore, the plaintiffs are estopped from questioning such sale made in favour of the defendant. As mentioned above, in the present case, the plaint is silent as to whether the father of the plaintiffs' indulged in immorality or illegality in causing alienation of the lands. When that being so, the plaintiffs are estopped from questioning such sale in favour of the defendant. 17. As mentioned above, in the present case, the plaint is silent as to whether the father of the plaintiffs' indulged in immorality or illegality in causing alienation of the lands. When that being so, the plaintiffs are estopped from questioning such sale in favour of the defendant. 17. The learned counsel appearing for the defendant/appellant also relied on the decision of this Court in the case of (Mariammal and another vs. Subbuthai and others) reported in 2013 (5) CTC 49 wherein it was held that a Hindu father can very well sell or mortgage ancestral property whether movable or immovable, including the interest of his son, grand sons and great-grandsons for the payment of his own debt, provided that such debt is not incurred for immoral or illegal purpose. In the present case, as mentioned above, there is no whisper in the plaint as to whether the father of the plaintiffs' resorted to immoral or illegal activities and the sale consideration received out of the sale made in favour of the defendant was utilised for the purpose of indulging in any immoral activities. Therefore, I hold that the substantial questions of law Nos. 1 and 2 are also answered in favour of the defendant/appellant. 18. In the present case, the trial court, on appreciation of the oral and documentary evidence found that pursuant to the sale made in favour of the defendant/appellant under Ex.B1, he had mutated the revenue records and paid tax in his own name. The defendant/appellant also obtained electricity service connection in his name. It was also pointed out by the trial court that the defendant/appellant had discharged his burden by producing Ex.B2, receipt and it could not be assailed by the plaintiffs in any manner. The trial court also pointed out that even though the plaintiffs have caused legal notice under Ex.B4 and called upon the defendant to handover the possession, they have not taken any steps to cancel the sale deed. However, the first appellate Court, without any basis, has held that the genuinity of Ex.B2, receipt is doubtful. Therefore, I hold that the decree and judgment passed by the first appellate Court deserves to be set aside and the second appeal has to be allowed. 19. However, the first appellate Court, without any basis, has held that the genuinity of Ex.B2, receipt is doubtful. Therefore, I hold that the decree and judgment passed by the first appellate Court deserves to be set aside and the second appeal has to be allowed. 19. In the result, the second appeal is allowed setting aside the decree and judgment dated 14.09.2009 made in A.S. No. 6 of 2009 on the file of Principal District Judge, Villupuram and the Judgment and Decree dated 29.11.2008 made in O.S. No. 38 of 2005 on the file of Principal Subordinate Judge, Villupuram is restored. Consequently, the suit in O.S. No. 38 of 2005 filed by the plaintiffs is dismissed. No costs.