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2019 DIGILAW 720 (MAD)

R. Lakshmi Ammal v. N. Devikala

2019-03-15

R.PONGIAPPAN

body2019
JUDGMENT : 1. The unsuccessful 5th defendant in O.S.No.15 of 2008, on the file of the learned Additional District Judge (Fast Track Court), Periyakulam, is the appellant herein. He has filed this appeal to set aside the Judgment and Decree, dated 01.07.2008, in O.S.No.15 of 2008, on the file of the learned Additional District Judge (Fast Track Court), Periyakulam. 2. For the sake of convenience, the parties are referred to as, as described before the trial Court. 3. The averments made in the plaint, in brief, are as follows:- (i) The suit property was originally belongs to the plaintiff's father viz., Kannan and his brother. There was a partition took place between the said Kannan and his brother's wife viz., Saraswathi, in the year of 1994. In the said partition, the 1st item of the suit schedule property was allotted to the share of the said Kannan, who is the father of the plaintiff. After the partition, the family members of the plaintiff had been enjoying the property peacefully, without any interruption. (ii) In the meantime, after attaining the majority, the plaintiff was given in marriage with one Nagathurai S/o. Nandagopal on 07.03.1999. After the marriage, the plaintiff was residing with her husband in Palanichettipatti. Subsequently, in the year 2001, the father of the plaintiff, Kannan, was died. At the time of death, the deceased Kannan, leaving his wife Sumathi, daughters Devikala, Sutharani, Reka and son Manikandan, who are arrayed as defendants 1 to 4 in the Suit, as his legal heirs. They have succeeded to the estate of the deceased Kannan. Both the plaintiff and defendants 1 to 4 in the Suit are having 1/5th share each, in the suit property. (iii) On 01.11.2002, the 1st defendant had sold out the suit schedule property, in favour of the 5th defendant by mentioning that the plaintiff and the defendants 2 to 4 are the minors. Being the mother of the plaintiff, the first defendant fully aware about the attainment of majority of the plaintiff. But, suppressing the said fact, she executed the sale deed, in favour of the 5th defendant, is not binding the plaintiff. (iv) The Plaintiff issued a legal Notice on 12.05.2003, to the 1st and 5th defendants, demanding to allot her 1/5th share over the 1st item of the suit property and also stated that the sale deed, dated 01.11.2002, is not binding on her. (iv) The Plaintiff issued a legal Notice on 12.05.2003, to the 1st and 5th defendants, demanding to allot her 1/5th share over the 1st item of the suit property and also stated that the sale deed, dated 01.11.2002, is not binding on her. The said Notice was received by the defendants on 23.05.2003. On receipt of such Notice, the 5th defendant alone issued a reply notice, in which, she denying the contents of the Notice sent by the plaintiff. Hence, the plaintiff filed the suit for partition. 4. The averments made in the written statement filed by the 1st defendant, reads as follows:- It is admitted that the suit property belongs to father of the plaintiff, by way of partition effected in the year of 1994. Ever since from the date of partition, the suit schedule property is in possession and enjoyment of the defendants 1 to 4 and the plaintiff. The plaintiff was given in marriage on 07.03.1999. Thereafter, the father of the plaintiff was died in the year of 2001, leaving the plaintiff and the defendants 1 to 4, as his legal heirs. (ii) The 1st defendant executed the sale deed in favour of the 5th defendant, only with the knowledge of the plaintiff. Initially, the plaintiff had accepted the sale and now only she claims rights in the suit schedule property. At the time of death of Late Kannan, he was having the debt to the tune of Rs.10,00,000/-. Further, he borrowed a loan of Rs.2,00,000/-, for the expenses of plaintiff's marriage. After the death of Late. Kannan, in order to settle those dues, the suit schedule property was sold out in favour of the 5th defendant and not for any other purpose. The 1st defendant is ready to give a share amount to the plaintiff, subject to the condition that if she is ready to repay the proportionate debts of her father. According to the 1st defendant, the suit is liable to be dismissed in limine. 5. The averments made in the written statement filed by the 5th defendant, reads as follows :- (i) It is admitted that after the death of deceased Kannan, the plaintiff and defendants 1 to 4 are having equal shares in the suit schedule property. It was not admitted on the side of the 5th defendant that the plaintiff was given in marriage to one Nagadurai on 07.03.1999. It was not admitted on the side of the 5th defendant that the plaintiff was given in marriage to one Nagadurai on 07.03.1999. The plaintiff was stayed with her mother at the time of selling the suit property, in favour of the 5th defendant. The 5th defendant purchased the suit property for the sale consideration of Rs.4,62,000/-. The said amount was received by the 1st defendant, for her family expenses, discharge of sundry expenses and for maintaining of her children. (ii) The suit was filed by the plaintiff on the ill advice of 1st defendant, to extract money from the 5th defendant. According to the 1st defendant, the plaintiff was 15 years old at the time of executing the sale deed, and as such, she was minor, representing by her mother, the 1st defendant, as mother and guardian, in the said sale deed. The 1st defendant is the bonafide purchaser of the suit schedule property and the sale cannot be questioned and attacked. Sofar as the suit property is concerned, without setting aside the sale deed, dated 01.11.2002, the plaintiff cannot claim partition over the suit property. Hence, for the said reasons, the suit filed by the plaintiff is liable for dismissal. 6. Based on the above pleadings, the learned Additional District Judge, Periyakulam, had framed the following issues, for considerations :- 1. What is the nature of suit property? 2. Whether is the plaintiff is entitled to get any share in suit property, as prayed for in the plaint? 3. Whether the Sale Deed, dated 01.11.2002, is binding on the plaintiff? 4. Whether the 5th defendant is the genuine vendor? 7. During the time of trial, before the trial Court, the plaintiff examined herself as P.W.1 and marked 6 documents as Exs.A1 to A6. On the side of the defendants, the 5th defendant herein examined herself as D.W.1 and marked 5 documents, as Exs.B1 to B5. 8. Having considered all the materials placed before him, the learned Additional District Judge, Periyakulam, came to the conclusion that the plaintiff is entitled to the relief of partition and passed a preliminary decree, as that the plaintiff is having the right of 1/5th share in the suit schedule property. 9. Aggrieved over the said Judgment and Decree, the 5th defendant in the suit has filed this Appeal Suit. 10. 9. Aggrieved over the said Judgment and Decree, the 5th defendant in the suit has filed this Appeal Suit. 10. On the basis of the divergent pleadings raised on either side, this Court framed the following issues, for disposing this appeal :- 1. Whether the plaintiff attained majority, at the time of executing the sale deed, by the 1st defendant, in favour of the 5th defendant? 2. Whether the plaintiff is entitled to 1/5th share in the suit schedule property? 3. Whether the Judgment and Decree, dated 01.07.2008, passed by the learned Additional District Judge (Fast Track Court), Periyakulam, in O.S.No.15 of 2009, is found correct? 4. To what other relief? Issue No.1. 11. Before considering the rival submissions made on either side, it would be condign to narrate the following admitted facts:- (i) The plaintiff is the elder daughter of the deceased Kannan. The defendants 2 to 3 are her sisters; 4th defendant is her brother and the 1st defendant is her mother, in the Suit. The suit schedule property was allotted in favour of the father of plaintiff, in a partition that took place in the year 1994, between the father of the plaintiff viz. Kannan and his brother's wife viz. Saraswathi. (ii) After partition, the suit property was in possession and enjoyment of the plaintiff, defendants 1 to 4 and with the father of the plaintiff. The father of the plaintiff Kannan was died in the year of 2001. Thereafter, on 01.11.2002, the 1st defendant had executed the sale deed, in favour of the 5th defendant, by mentioning that the sale deed was executed for herself and on behalf of the plaintiff, defendants 2 to 4, who are the minors. 12. It is the contention of the plaintiff that without her knowledge, the 1st defendant, on 01.11.2002, sold out the suit schedule property, in favour of the 5th defendant. Further, it was the contention that at the time of sale, she attained majority and therefore, mentioning her name in the sale deed, as minor, is nothing by rank forgery. According to her, the sale deed, dated 01.11.2002, is not binding on her. Further, being the legal heir of the deceased Kannan, she is eligible for 1/5th share in the suit schedule property. 13. According to her, the sale deed, dated 01.11.2002, is not binding on her. Further, being the legal heir of the deceased Kannan, she is eligible for 1/5th share in the suit schedule property. 13. On the other hand, it is the contention of the 5th defendant that the suit had been filed by the plaintiff with collusive action of the 1st defendant. It his his further contention that at the time of sale, the plaintiff was minor. 14. Now, upon considering the rival submissions made on either side before the trial Court, the Transfer Certificate issued in favour of the plaintiff was marked as Ex.A6. The said certificate was issued by the JKM Higher Secondary School, Bodinayakanur, on 07.05.2003. In the said certificate, the date of birth of the plaintiff is mentioned as 02.04.1983. According to the said certificate, she attained the majority on 02.04.2001. 15. In this regard, the learned counsel appearing for the appellant would contend that, since any person conversant with the date of birth was not examined on the side of the plaintiff, the entries made in the School Register cannot be accepted, as a proof for date of birth. In support of his contention, the learned counsel, invited the attention of this Court to the Judgment of Hon'ble Apex Court in Birad Mal Singhvi Vs. Anand Prohit reported in ( AIR 1988 SC 1796 ) wherein, it has been held as follows :- “However, neither the candidates themselves nor their parents or any person conversant with their date of birth were examined. In the absence of material on the basis of which the date of birth was recorded in School Register etc., held that the same did not have much evidentiary value, to prove the age of the candidates.” 16. Now, applying the principle laid down by the Hon'ble Apex Court, admittedly, in the case on hand, the candidate itself had given evidence and produced the document as Ex.A6, School Transfer Certificate. Further, during the time of giving evidence as P.W1, she had stated that she completed only upto 9th standard. In the said circumstances, we cannot expect the Secondary School Leaving Certificate and other Certificates having the date of birth of the plaintiff, for deciding the correct date of birth. 17. For a person studying upto 9th Standard, only in the Transfer Certificate, the date of birth has been mentioned. In the said circumstances, we cannot expect the Secondary School Leaving Certificate and other Certificates having the date of birth of the plaintiff, for deciding the correct date of birth. 17. For a person studying upto 9th Standard, only in the Transfer Certificate, the date of birth has been mentioned. Even though the evidence given by P.W.1 that she was born in hospital, the other details in respect to the hospital was known only to her mother or father and not to anybody. Since her mother stands an opposite party in this case, the plaintiff is not in a position to obtain the correct particulars, in respect to her date of birth. So, the only probable available evidence is, the Transfer Certificate, which has been exhibited on the side of the plaintiff. In the said circumstances, the facts and circumstances found in the Judgment of the Hon'ble Apex Court reported in ( AIR 1988 SC 1796 ) (cited supra) relied on by the learned counsel for the appellant is entirely different with the present case on hand. 18. More over, in the legal heir certificate of deceased Kannan, which was marked as Ex.B2, it was mentioned that the plaintiff was a married woman. Further, it is not the case of the defendants that at the time of executing the sale deed, the plaintiff was unmarried girl. So, it is necessary on the part of the 1st defendant and 5th defendant to mention the name of the plaintiff in the sale deed with the particulars of her husband. But, in the sale deed, the 1st defendant did not mention the plaintiff as a married woman. So, on cull out the entire circumstances, the particulars available in Ex.A6 will prove that the plaintiff attained the majority, at the time of executing the sale deed. The Issue No.1 is decided accordingly, in favour of the plaintiff. Issue No.2: 19. It is the case of the defendant No.5 that the plaintiff colluded with the 1st defendant and filed the Suit for illegal gain. In his evidence, the 5th defendant specifically stated that only on seeing the legal heirs certificate issued by the Competent Authority, she came to know that the plaintiff and defendants 2 to 4 are still minors. 20. It is the case of the defendant No.5 that the plaintiff colluded with the 1st defendant and filed the Suit for illegal gain. In his evidence, the 5th defendant specifically stated that only on seeing the legal heirs certificate issued by the Competent Authority, she came to know that the plaintiff and defendants 2 to 4 are still minors. 20. As already discussed, it is evident, as per Ex.B2, Legal Heir Certificate, at the time of issuing the said certificate, it is mentioned in the said certificate that the plaintiff was a married woman. So, it is necessary on the part of the 1st defendant to mention the name of the 1st plaintiff as Devikala along with her husband name. But, the said particulars has not mentioned in the sale deed. It creates a doubt whether the plaintiff is colluded with the 1st defendant or whether the 1st defendant colluded with the 5th defendant and sold out the said property. 21. Even assuming that the deceased Kannan was having debt more than Rs.10,00,000/-, in order to prove the said fact, it is easy for the 1st defendant to produce the relevant documents to show her bonafide. But, without production of any documents, we cannot come to a conclusion that the sale was effected by the 1st defendant only in order to discharge the debt availed by the deceased Kannan. 22. Now, it is the case of the defendants that prior to cancellation of the sale deed, asking partition in the suit schedule property, is not at all maintainable. Further, the learned counsel appearing for the defendants relied on the Judgment of this Court in Vedambal Vs. Ponnarasi and Another reported in (2011 (3) MWN (Civil) 384), in which it has been held as follows :- “18. From the conjoint reading of the decisions referred to supra, it is easily discernible that in any transaction if a minor has been shown as eo nominee party and he has been represented by his lawful guardian. The alleged transaction is binding upon him and necessarily he has to take steps for cancelling the same.” 23. Applying the said principle in this case, now, the case in our hand is entirely different with the facts mentioned in the case referred to above. Here, the case of the plaintiff is, at the time of executing the sale deed, she attained the majority. Applying the said principle in this case, now, the case in our hand is entirely different with the facts mentioned in the case referred to above. Here, the case of the plaintiff is, at the time of executing the sale deed, she attained the majority. Only suppressing the said fact, the 1st defendant had executed the sale deed. In the said circumstances, while answering the issue No.1, I held that at the time of executing the sale deed, the plaintiff attained the majority. Even though she was mentioned as “EO Nominee Party” in the said sale deed, since the said sale deed was executed after suppressing the material facts. 24. It is needless to say that the said sale deed cannot bind on the plaintiff. Agitating the same, specific prayer for cancellation is not necessary. Now, she filed the Suit only for possession and paid Court Fee, under Section 7(5) of the Court Fee Act. Thus, in respect to the plaintiff, since the sale deed itself is a void one, I am of the considered view, the specific prayer for cancellation of sale deed is not necessary. The 1st appellate Court also took the same view and decreed the suit, in favour of the plaintiff. Thereby, the plaintiff is entitled to 1/5th share in the suit schedule property. Accordingly, the issue No.2 is answered in favour of the plaintiff. Issue No.3. 25. In view of the affirmative answers given in favour of the plaintiff in Issue Nos.1 & 2, the Judgment and Decree, dated 01.07.2008, in O.S.No.15 of 2008, on the file of the learned Additional District Judge (Fast Track Court), Periyakulam, is found to be well considered one and interference is not necessary. Accordingly, the issue Nos.3 & 4 are answered in favour of the plaintiff. 26. In the result, the Appeal Suit is dismissed, confirming the Judgment and Decree, dated 01.07.2008, in O.S.No.15 of 2008, on the file of the learned Additional District Judge (Fast Track Court), Periyakulam. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is also dismissed.