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2019 DIGILAW 2040 (MAD)

S. R. Rengan v. S. R. Alamelu Ammal (Died)

2019-08-06

R.PONGIAPPAN

body2019
JUDGMENT : Both the second appeals are preferred against the Judgment and Decree passed in A.S.Nos.264 and 265 of 1997 on the file of the learned II-Additional District Judge, Trichy. 2. The respondent in S.A.No.745 of 1998, one S.R.Alamelu Ammal filed a suit in O.S.No.751 of 1990, on the file of the learned Subordinate Judge, Trichy, seeking the relief of recovery of possession and permanent injunction, as against one S.R.Rengan, who is the appellant in S.A.No.744 of 1998. 3. Similarly, the above said S.R.Rengan and two others filed a suit in O.S.No.400 of 1991, on the file of the learned Subordinate Judge, Trichy, seeking the relief of permanent injunction restraining the defendants from interfering with the plaintiffs' peaceful possession and enjoyment of the suit schedule properties, in which the above said S.R.Alamelu Ammal is the first defendant. 4. Since, in both the suits, party to the proceedings and the property in dispute are one and the same, the learned Principal Subordinate Judge, Trichy, tried the both suits simultaneously and by a common Judgment and decree, dated 18.01.1997, dismissed the suit in O.S.No.751 of 1990 and granted a decree in favour of the plaintiffs in O.S.No.400 of 1991. Against the said findings, the aggrieved party in the respective suits preferred the appeal in A.S.Nos.264 of 1997 and 265 of 1997, before the learned II-Additional District Judge, Trichy. 5. By Judgment and Decree, dated 27.02.1998, the learned II-Additional District Judge, Trichy, set aside the judgment rendered by the learned Principal Subordinate Judge, Trichy, and allowed the both appeals. Ultimately, decree was granted in both the appeals with respective costs. Feeling aggrieved over the same, the aggrieved party is before this Court with these present second appeals. 6. Since the issue pertaining to these two appeals are one and the same, this Court has also decided to pronounce a common judgment in these two appeals. 7. For the sake of convenience, the parties are referred to as, as described before the Courts below. S.A.No.744 of 1998: 8. The averments made in the plaint in O.S.No.400 of 1991, in brief, are as follows: The plaintiffs are the absolute owners of the suit properties, vide a registered partition deed, dated 19.09.1986. The said partition deed is executed between the family members of the plaintiffs, viz., S.R.Venkataraman-the brother of the first plaintiff and one S.V.Srinivasan – son of the said S.R.Venkataraman. The said partition deed is executed between the family members of the plaintiffs, viz., S.R.Venkataraman-the brother of the first plaintiff and one S.V.Srinivasan – son of the said S.R.Venkataraman. The first plaintiff was represented in the registered deed by the said S.R.Venkataraman as his Power-Agent and the plaintiffs 2 and 3 were represented by the first defendant in the said deed as their Power-Agent. It appears that after the execution of the registered partition deed, the said S.R.Venkataraman, representing himself as the Power-Agent of the first plaintiff and the first defendant representing herself as the Power-Agent of the plaintiffs 2 and 3, have now been attempting to interfere with the possession of the plaintiffs in respect to the suit properties and are attempting to put up a massive construction in the said suit properties. The defendants are strangers to the suit and the aforesaid S.V.Srinivasan have executed a registered partition cancellation deed. It is submitted that this deed has no existence in the eye of law. Since the suit properties are the joint family properties of the plaintiffs and the defendants, the partition deed executed among them has came into existence. Right from the time of aforesaid partition, the plaintiffs are in the possession of the suit properties with their own rights. It appears that the first defendant in collusion with the defendants 2 and 3, have now been attempting to interfere with the possession of the plaintiffs in respect to the suit schedule properties. The attempt on the part of the defendants is audacious and the same can never be allowed to continue. Hence the suit. 9. The averments made in the written statement filed by the first defendant are as follows: The first defendant herein, is the sister of the first plaintiff and the aunt of second and third plaintiffs. She has purchased the suit properties from one Gopalakrishnan by means of the sale deed, dated 23.05.1968 and the same was purchased out of her own savings and it is only a self-acquired properties of the first defendant. Ever since from the date of purchase, the suit properties are in the peaceful possession and enjoyment of the first defendant. This defendant is the daughter of one S.K.Ramasamy Iyangar. The said S.K.Ramasamy Iyankar was blessed with three sons, namely, S.R.Venkataraman, S.R.Krishnaswamy and S.R.Rengan and a daughter S.R.Alamelu Ammal-the first defendant herein. Ever since from the date of purchase, the suit properties are in the peaceful possession and enjoyment of the first defendant. This defendant is the daughter of one S.K.Ramasamy Iyangar. The said S.K.Ramasamy Iyankar was blessed with three sons, namely, S.R.Venkataraman, S.R.Krishnaswamy and S.R.Rengan and a daughter S.R.Alamelu Ammal-the first defendant herein. Among the three brothers, S.R.Krishnaswamy breathed his last long before. There was a partition between the wife and children of S.K.Ramasay Iyangar in the year 1969, by means of a registered partition deed, dated 23.11.1968. In the said partition deed, since the suit properties are the self-acquired properties of the first defendant, it has not included. Only the properties of V.K.Ramasamy Iyangar were divided equally among his children. The first defendant, being a young widow, was apprehending a fear that the properties purchased by her by means of sale deed, dated 23.05.1968 will attract Urban Land Ceiling Laws, capital gains, wealth tax or any other similar laws of the land. Under such circumstances, she has expressed her fear and difficulties to the plaintiffs for safeguarding her hard-earned properties from the clutches of law. The first defendant's brother, in turn, advised her to create a formal deed of partition. Accordingly, a partition deed, dated 19.09.1986 was created between her brothers, as sham and nominal and it was not intended to be acted upon. The plaintiffs know about all these things and they were parties to the dialogue, discussion for the creation of the formal deed. Thereafter, the first defendant was apprised of the correct position and she has relieved off the misgivings and mis-apprehensions. Under such circumstances, the signatories in the document, dated 19.09.1986 have decided to cancel the deed by means of another deed and thus the cancellation deed, dated 28.04.1988 came into existence. The partition deed, dated 19.09.1986 is a void document and unenforceable in law. The very fact that all the brothers have not joined the alleged partition will go to show that the document was created only as a sham and nominal document. One of the signatories of the document, dated 19.09.1986, S.V.Srinivasan has also given an effective affidavit before this Hon'ble Court stating the purpose for which the documents came into existence. According to the first defendant, the relief prayed by the plaintiffs cannot be granted. S.A.No.745 of 1998 : 10. One of the signatories of the document, dated 19.09.1986, S.V.Srinivasan has also given an effective affidavit before this Hon'ble Court stating the purpose for which the documents came into existence. According to the first defendant, the relief prayed by the plaintiffs cannot be granted. S.A.No.745 of 1998 : 10. The gist of averments made in the plaint in O.S.No.751 of 1990 are as follows: The plaintiff is the owner of the suit properties, vide sale deed, dated 23.05.1968. The suit properties are measuring to an extent of 26,772 sq. ft. and a house therein. The suit properties consisting seven blocks in which three storeyed buildings have been put up. The plaintiff has sold about 39 sale deeds out of the premises or construction put up in the blocks. On 23.11.1968, the plaintiff and her three brothers have divided the properties belonging to their joint family. The suit properties are the self-acquired properties of the plaintiff. The plaintiff was haunted by the apprehension of tax harassment, Urban Land Tax or questions relating to the Urban Ceiling and therefore, it was suggested that the suit properties could be divided in the names of the defendant and two other brothers of the plaintiff, only as a document of sham and nominal in nature, for the purpose of relieving any possible tax harassment. As soon as such fears have been dispelled, the parties were advised to enter into the cancellation of the partition deed and accordingly, the partition deed entered on 19.09.1986 was cancelled by a deed, dated 28.04.1988. In fact, the plaintiff alone is in exclusive possession and enjoyment of the suit properties. When a dispute arose between the plaintiff and Sri Rangam Municipality, with respect to the demolition of a particular portion of the properties, the plaintiff has alone filed a suit and obtained an order of interim injunction. The defendant in recent years has become very much estranged with the plaintiff and has been laying covetous eyes on the suit properties and has been pestering the plaintiff to gift the same to him, in view of the plaintiff being an old widow. Taking advantage of the afraid of the plaintiff as an old widow aged about 70 years, the defendant sent his men from Calcutta claiming to be his deputies and tried to prevent the construction that is going on in the suit properties and interfered with the same. Taking advantage of the afraid of the plaintiff as an old widow aged about 70 years, the defendant sent his men from Calcutta claiming to be his deputies and tried to prevent the construction that is going on in the suit properties and interfered with the same. The plaintiff is apprehensive of any unleashing of violence on the old widow. Hence, the suit has been filed for the relief of permanent injunction. 11. The averments made in the written statement filed by the defendant are as follows: The allegation that the plaintiff is the owner of the suit properties as per the sale deed, dated 23.05.1968, is specifically and incisively denied. The suit properties originally belonged to the joint family consisting of the plaintiff, the defendant and their brothers. The same was purchased in the name of the plaintiff by all the members of the joint family, utilising the joint family funds. On 19.09.1986, the suit properties were partitioned and in that partition an extent of 11,782 sq. ft. was allotted to the share of the defendant and his two sons. It is true that in the partition deed, dated 23.11.1968, the suit properties did not find a place. The reason was that the members of the joint family decided that the suit properties could be divided later on. The registered partition deed, dated 19.09.1986 came into existence, when the parties were fully aware of their legal rights in the suit properties. It is submitted that the cancellation deed, dated 28.04.1988 has no existence in the eye of law. It is not understood as to how a registered partition deed, which determines the rights of the partition, can be cancelled at all. The defendant is the absolute and exclusive owner of the extent of 11,782 sq.ft. allotted to him under the registered partition deed, dated 19.09.1986. There is no cause of action for the suit. Hence, the defendant prays to dismiss the suit. 12. Based on the above pleadings, the learned Subordinate Judge, Trichy, framed necessary issues and tried both the suits jointly. 13. Before the trial Court, the plaintiff in O.S.No.751 of 1990, S.R.Alamelu Ammal was examined as P.W.1. Further, one Venkatraman and Srinivasan were examined as P.W.2 and P.W.3. More than that, on her side, she exhibited 11 documents as Ex.A1 to Ex.A11. 13. Before the trial Court, the plaintiff in O.S.No.751 of 1990, S.R.Alamelu Ammal was examined as P.W.1. Further, one Venkatraman and Srinivasan were examined as P.W.2 and P.W.3. More than that, on her side, she exhibited 11 documents as Ex.A1 to Ex.A11. On the side of the defendant, the defendant-S.R.Rengan in O.S.No.751 of 1990, who is the plaintiff in O.S.No.400 of 1991 was examined as DW.1 and he exhibited 2 documents as Ex.B1 and Ex.B2. Apart from those documents, the report and plan filed by the advocate commissioner were marked as Ex.C1 and Ex.C2. 14. Having considered all the materials placed before him, the learned Subordinate Judge, dismissed the suit in O.S.No.751 of 1990 and allowed the suit in O.S.No.400 of 1991. Aggrieved over the said findings the plaintiff-S.R.Alamelu Ammal, in O.S.No.751 of 1990 filed an appeal in A.S.No.264 of 1997 and being the first defendant in O.S.No.400 of 1991, she filed another appeal in A.S.No.265 of 1997 before the learned II-Additional District Judge, Trichy. 15. The learned II-Additional District Judge, Trichy, in his judgment, dated 27.02.1998 allowed both the appeals and set aside the findings arrived at by the trial Court. Aggrieved over the same, the aggrieved parties are before this Court with these present second appeals. 16. In the said circumstances, at the time of admitting these second appeals, this Court has formulated the following Substantial Questions of Law, for consideration: “(a) Whether the lower Appellate Court is right in holding that Ex.A.7 cancellation of partition made under Ex.A6 is valid when the power of attorney Ex.B1 had not conferred any such right on the respondent? (b) Whether the lower Appellate Court is right in holding that cancellation of partition under Ex.A7 is valid when sale in favour of Alamelu Ammal was only sham and nominal and that was why she had acted only as power agent and nothing was mentioned in Ex.A6 about her title?” 17. Substantial Questions of Law 1 and 2: In respect to the relationship between the plaintiffs and defendants in both the suits, it is an admitted fact that the plaintiff S.R.Alameluammal in O.S.No.751 of 1990, who is the first defendant in O.S.No.400 of 1991 is the sister of S.R.Rengan, who is the first plaintiff in O.S.No.400 of 1991 as well as the defendant in O.S.No.751 of 1990. The plaintiffs 2 and 3 in O.S.No.400 of 1991 are the sons of the above said S.R.Rengan. 18. It is further admitted on either side that the suit schedule properties are purchased by S.R.Alameluammal vide sale deed, dated 23.05.1968 (Ex.A1). It is further more admitted that on 23.11.1968, the family members of the plaintiff and the defendants have entered into partition in respect to their ancestor's properties. In the said partition deed, the properties purchased under Ex.A1, by the said S.R.Alameluammal was not included. Before the trial Court, the partition deed, dated 23.11.1968 was marked as Ex.A2. 19. It is the case of the plaintiff in O.S.No.751 of 1990 that ever since from the date of purchase, i.e., from 23.05.1968, the suit properties is in her possession and enjoyment. 20. The contention raised on behalf of the plaintiff in O.S.No. 751 of 1990 is that only to avoid the Uurban Land Tax and to avoid other Government dues, a partition deed was created after including her brother S.R.Rengan and his sons Sridhar Rengan and Srikanth Rengan as a party to the document. According to her, the said partition deed is sham and nominal one. 21. On the other hand, the contention raised by the plaintiffs in O.S.No.400 of 1991 is that the partition deed, dated 19.09.1986, in respect to the suit properties is valid one. It is the further case of the plaintiffs that the said partition deed, dated 19.09.1986 was cancelled by S.R.Alameluammal without consulting her brother and his sons. In this regard, before the trial Court, the partition deed and the cancellation deed, dated 19.09.1986 and 28.04.1988 respectively, were marked as Ex.A6 and Ex.A7. Among the above documents, as per Ex.A6, the properties measuring an extent of 11,782 sq.ft. were allotted in favour of S.R.Rengan and to his sons. 22. When at the time of disposing the first appeals, the learned II-Additional District Judge, Trichy, after believing Exs.A8 to A11, which are the letters addressed to the plaintiff-S.R.Alamelu Ammal, by her brother-S.R.Rengan, concluded the appeal that Ex.A.6-partition deed, dated 19.09.1986 is nothing but sham and nominal. 23. were allotted in favour of S.R.Rengan and to his sons. 22. When at the time of disposing the first appeals, the learned II-Additional District Judge, Trichy, after believing Exs.A8 to A11, which are the letters addressed to the plaintiff-S.R.Alamelu Ammal, by her brother-S.R.Rengan, concluded the appeal that Ex.A.6-partition deed, dated 19.09.1986 is nothing but sham and nominal. 23. Mr.M.P.Senthil, learned counsel appearing for the respondent in S.A.No.745 of 1998 would contend that the plaintiffs in O.S.No.400 of 1991 have not established their possession on the date of filing of the suit and since there is a cloud is indicated upon the title of the plaintiffs, so suit for bare injunction cannot be maintained in the absence of prayer for declaration of title. In this regard, this Court has considered the same issue in the case of Ratna Kounder vs. Annamalai and others, reported in 2014 (2) CTC 421 , in paragraph No.14 as follows: “14. ...... when the defendants have categorically proved that they are entitled to the Suit properties by claiming their title under Exs.B1 & B2, which is not seriously disputed by the Plaintiffs by filing a Reply Statement or amending the prayer for Declaration of Title, the general presumption is possession follows title.” 24. Further in the judgment of our Hon'ble Apex Court in the case of Anathula Sudhakar vs. P.Buchi Reddy and others, reported in 2008 (6) CTC 237 , wherein in paragraph No.14 has held as follows: “14. .........If two persons claim to be in possession of a vacant site, one who is able to establish title thereto will be considered to be in possession, as against the person who is not able to establish title. This means that even though a suit relating to a vacant site is for a mere injunction and the issue is one of possession, it will be necessary to examine and determine the title as a prelude for deciding the de jure possession. In such a situation, where the title is clear and simple, the Court may venture a decision on the issue of title, so as to decide the question of de jure possession even though the suit if for a mere injunction.....” 25. In this regard, before the trial Court, to prove the possession, on the side of the said S.R.Alamelu Ammal, three documents were marked as Exs.A3 to A5. In this regard, before the trial Court, to prove the possession, on the side of the said S.R.Alamelu Ammal, three documents were marked as Exs.A3 to A5. Those documents are in respect to the property tax and the permission given by the Sri Rangam Municipality for construction of building. Since those documents are belonged to the year 1990, it can be accepted as a prima facie document for proving the possession. On the other hand, on the side of the defendants, no such documents were produced to prove the possession. Moreover, Ex.A7-the cancellation deed with respect to the partition, creates a cloud over the title now claimed by S.R.Rengan. So, it is very much necessary for them to amend the prayer, particularly, for the relief of declaration. 26. The First Appellate Court has held Ex.A8 to Ex.A11, which are the letters addressed by the defendant to S.R.Alamelu Ammal are the relevant documents for holding that the alleged partition deed is a sham and nominal one. Now, on go though the contents of the letters, it is clear that Ex.A.6, in which, it was stated that the suit properties are the ancestor properties of both the plaintiff as well as the defendants. In fact, the said recital is contra to Ex.A1, which is the sale deed stands in the name of the plaintiff-S.R.Alamelu Ammal in respect to the suit schedule properties. Further, in support of the plea raised by Alamelu Ammal, she examined herself as PW.1 and also in supporting her stand, the other brother and his son, who are parties to the disputed partition deed, viz., Ex.A6 and A7 were examined as P.Ws.2 and 3. 27. On the other hand, no other independent witnesses have been examined on the side of S.R.Rengan. The said circumstances probablizes the case of the plaintiff in O.S.No.751 of 1990. In respect to the letters addressed by S.R.Rengan, Mr.M.P.Senthil, learned counsel relied on the judgment of our Hon'ble Apex Court in the case of Vathsala Manickavasagam and others v. N.Ganesan and another, reported in 2013 (5) CTC 884 wherein in paragraph No. 28, it has been held as follows: “28. ....... The tone and tenor of the letter viz., Ex.A-17, authored by the First Respondent, discloses that he too was not very keen to grab all the three properties, simply because those properties were purchased in his name. ....... The tone and tenor of the letter viz., Ex.A-17, authored by the First Respondent, discloses that he too was not very keen to grab all the three properties, simply because those properties were purchased in his name. He went to the extent of stating that he was not responsible for purchasing all the three house properties in his name. He went one step further and stated that he did not want to possess all the three properties all time to come. If such a clear-cut mindset was expressed by the First Respondent though Ex.A-17, it was futile on his part to have come forward with any other story after the Suit came to be filed by the Plaintiffs.” 28. Applying the above said principles in the case on hand, the contents of the letters reflect the mind-set expressed by S.R.Rengan. The First Appellate Court, only on believing the said documents, came to the conclusion that Ex.A6 is sham and nominal and the same did not confer any title. Further more, in the cancellation deed (Ex.A7), in which both the parties, who signed in the partition deed, are signed as a party to the proceedings. In other words, in respect to the cancellation of the Power-of-Attorney stands in the name of S.R.Alamelu Ammal, there was no evidence on the side of the defendants that as on date of the cancellation of partition deed, the power given in favour of other persons is not in existence. So, all the said circumstances concludes that Ex.A6 is a sham and nominal document, further the cancellation of partition deed, which was exhibited under Ex.A7 is a valid one. Accordingly, Substantial Questions of Law 1 and 2 are answered affirmatively in favour of the said S.R.Alamelu Ammal. 29. In fine, for the foregoing reasons, the Judgment and Decree, dated 27.02.1998, passed in A.S.Nos.265 and 264 of 1997, by the learned II-Additional District Judge, Thiruchirapalli, is hereby confirmed and these Second Appeals are dismissed. No Costs.