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2021 DIGILAW 2498 (MAD)

A. Abdul Kadar v. M. A. Mymoon Beevi

2021-09-22

G.R.SWAMINATHAN

body2021
JUDGMENT : (Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 14.08.2012 made in A.S.No.02 of 2011 passed by the III Additional District and Sessions Judge, Tirunelveli by reversing the judgment and decree dated 29.10.2010 made in O.S.No.113 of 2009 passed by the Principal Subordinate Judge, Tirunelveli.) 1. This second appeal arises out of a partition suit. The plaintiff is the appellant. The appellant filed O.S.No.113 of 2009 before the Principal Sub Court, Tirunelveli seeking partition of 7/24th share in the suit properties. There is no dispute that the suit properties originally belonged to the father of the plaintiff namely late Mohammed Abdul Razak. He passed away in the year 1999. The plaintiff filed the partition suit arraying his mother Mymoon Beevi and his brothers Mohammed Ibrahim and Moudalli Syed Ahamed as defendants. The suit items are two in number. Regarding the second item, there is no dispute because the said item was gifted in favour of the three sons by late Mohammed Abdul Razak vide gift deed dated 09.04.1985. The contest revolves only around the first item. The stand of the defendants 2 and 3 was that the said property was sold in their favour by father under Ex.B11 dated 05.11.1992. Based on the divergent pleadings, the trial court framed the necessary issues. The plaintiff examined himself as P.W.1 and marked Ex.A1 and Ex.A2. The third defendant examined himself as D.W.1 and marked Ex.B1 to Ex.B6. After a consideration of the evidence on record, the trial court by judgment and decree dated 29.10.2010 passed preliminary decree in favour of the plaintiff. Aggrieved by the same, the defendant filed A.S.No.2 of 2011 before the third Additional District and Sessions Judge, Tiruneleli. Vide judgment and decree dated 14.08.2012, the first appellate court set aside the decision of the trial court and allowed the appeal and dismissed the suit. Aggrieved by the same, the plaintiff filed the second appeal. During the pendency of the second appeal, the third respondent passed away and his legal heirs were brought on record. The appeal was admitted on the following substantial questions of law:- “1. Whether the sale deed dated 15.11.1992 is valid in law? 2. Aggrieved by the same, the plaintiff filed the second appeal. During the pendency of the second appeal, the third respondent passed away and his legal heirs were brought on record. The appeal was admitted on the following substantial questions of law:- “1. Whether the sale deed dated 15.11.1992 is valid in law? 2. Whether the said sale is valid as the difference in the stamp duty as contemplated under Section 19-B and 47-A of Indian Stamp Act within the period of four years as contemplated therein, which is mandatory is not paid and validated?” 2. The learned counsel appearing for the appellant reiterated all the contentions set out in the memorandum of grounds and called upon this Court to answer the substantial questions of law in favour of the appellant. 3. The learned counsel appearing for the appellant submitted that Ex.B1 dated 05.11.1992 was registered at Parassala, Kerala State and therefore, there is a clear violation of the mandatory provisions of the Indian Stamp Act as amended in the State of Tamilnadu. According to him, it is not even admissible in evidence. Therefore, once Ex.B1 is eschewed out of consideration, the impugned judgment and decree of the first appellate court cannot stand. He called upon this Court to restore the decision of the trial court. 4. Per contra, the learned counsel appearing for the respondents submitted that the impugned judgment and decree do not warrant any interference. 5. I carefully considered the rival contentions and went through the evidence on record. As already noticed, both the suit items belonged to late. Mohammed Abdul Razak. The second item was gifted by him in the year 1985 in favour of all the three sons. The plaintiff under Ex.B1 had sold his undivided share in second item in favour of the second respondent herein. Therefore, the plaintiff cannot have any claim as regards the second item. This aspect of the matter has been specifically dealt with by the trial court itself in Paragraph No.13. The contest in this second appeal is only regarding the first item. It is a fact that Mohammed Abdul Rasak executed Ex.B1 in the year 1992 and that he passed away seven years later. The partition suit came to be filed only in the year 2009. 6. The contest in this second appeal is only regarding the first item. It is a fact that Mohammed Abdul Rasak executed Ex.B1 in the year 1992 and that he passed away seven years later. The partition suit came to be filed only in the year 2009. 6. The learned counsel appearing for the respondents would state that after his marriage, the plaintiff left the family and that was probably the reason why the father chose to sell suit item No.1 in favour of the other two sons. He also would point out that D2 and D3 took care of their father till his death in the year 1999. Of-course, the learned counsel appearing for the appellant would controvert the said assertion. But in my view, the stand of the respondents is probabilised by the fact that mother chose to sail with D2 and D3. She adopted their written statement. In-fact, she would join D2 and D3 in filing the first appeal, even though she did not have any claim in the matter. What clinches the issue in favour of the defendants is execution of Ex.B1 by the plaintiff. Under Ex.B1, the plaintiff had sold his undivided share in suit item No.2 in favour of the second defendant. The boundary description given in Ex.B1 is highly significant. The plaintiff while describing the property sold to D2 had stated that the property covered under Ex.B1 is lying to the south of Door No.32 as belonging to D2. D2 and D3 became the owner of the premises bearing door No.32 only under Ex.B1. It means that the plaintiff was aware of the sale made by the father in favour of his brothers in the year 1992. When the plaintiff was specifically confronted with this boundary description set out in Ex.B1, he feigned ignorance. He stated that he was not aware of the same. The plaintiff did not take the stand that sale deed was prepared by the defendants and that he merely signed it. Therefore, when the plaintiff himself had accepted the sale made in favour of D2 and D3, the question of challenging the same 10 years thereafter will clearly not arise at all. As already pointed out by the learned counsel for the respondents, the sale was made in the year 1992. The factum of sale was known to the plaintiff and he had also accepted the same. As already pointed out by the learned counsel for the respondents, the sale was made in the year 1992. The factum of sale was known to the plaintiff and he had also accepted the same. Therefore, it is not open to the plaintiff to challenge the same in the year 2009. 7. Regarding the substantial questions of law raised in this second appeal, a learned judge of this Court in the decision reported in CDJ 2020 MHC 754 (D.Vijayalakshmi Vs. V.Hariselvan and others) has stated that registration of the document at Parassala would not amount to fraudulent registration. In view of the aforesaid decision, the substantial questions of law are answered against the appellant. 8. The second appeal is dismissed. No costs.