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2022 DIGILAW 361 (MAD)

Panchavarnam v. Sankarammal @ Tamilarasi (Died)

2022-02-08

G.R.SWAMINATHAN

body2022
JUDGEMENT : This second appeal arises of out O.S.No.98 of 2004 on the file of the Additional District Munsif Court, Srivilliputtur. The suit properties originally belonged to one Satha Perumal Chettiar. He was blessed with three children namely, Ramaiah Chettiar, Perumal Chettiar and Sankaran Chettiar. Sankaran Chettiar was blessed with two sons and two daughters namely, Manivannan, Satha Selvaraj, Sankarammal and Santhanamariammal. Partition took place among three sons of Satha Perumal Chettiar in the year 1969. Under Ex.P1/Ex.A9 dated 29.03.1969, Sankaran Chettiar was given life estate in respect of the properties described as 'third schedule' to the said partition deed. Absolute reminder was given in respect of the third schedule properties to his children. The third schedule of Ex.A9/Ex.P1 contained as many as 14 items. Sankaran Chettiar dealt with quite a few of them. We are not concerned with all the alienations in this second appeal. We are concerned only with the alienations made vide Ex.A7 and Ex.A8 in favour of the fourth and fifth defendants. 2. The suit was filed by the two daughters and one son of Sankaran Chettiar. They felt aggrieved by the alienations made by their father. The suit prayer was for declaring that the alienations made by Sankaran Chettiar are void ab inito and not binding on them and for the relief of permanent injunction, recovery of possession and mandatory injunction. The first defendant was Sankaran Chettiar, while the second defendant was the brother of the plaintiffs namely, Manivannan. The purchasers under Exs.A7 and A8 were Balaiah Nadar and Panchavarnam, the fourth and fifth defendants. Written statements were filed controverting the plaint averments. A counter claim was also sought for by the father/D1. The plaintiffs filed a reply statement. Based on the rival pleadings, as many as eight issues were framed. 3. The first plaintiff/Sankarammal @ Tamilarasi examined herself as P.W.1. Exs.A1 to A9 were marked. The father/Sankaran Chettiar examined himself as D.W.1. The fourth defendant/Balaiah Nadar examined himself as D.W.3. Two other witnesses were examined on the side of the defendants. Exs.B1 to B36 were marked. 4. By judgment and decree dated 21.12.2005, the trial Court partly decreed the suit and dismissed the counter claim. The trial Court granted the relief of permanent injunction alone and denied the other reliefs. Aggrieved by the same, plaintiffs 1 and 2 filed A.S.No.17 of 2006 before the Sub Court, Srivilliputhur. Sankaran Chettiar/first defendant filed cross appeal. 4. By judgment and decree dated 21.12.2005, the trial Court partly decreed the suit and dismissed the counter claim. The trial Court granted the relief of permanent injunction alone and denied the other reliefs. Aggrieved by the same, plaintiffs 1 and 2 filed A.S.No.17 of 2006 before the Sub Court, Srivilliputhur. Sankaran Chettiar/first defendant filed cross appeal. The appeal and cross appeal were disposed of by the first appellate Court on 30.09.2011. The first appellate Court granted the relief of declaration and confirmed the decree of permanent injunction. It however denied the relief of mandatory injunction as well as recovery of possession on the ground that the first defendant/father was very much alive. 5. Even during the pendency of the first appeal, Balaiah Nadar had passed away. Panchavarnam is none other than the wife of Balaiah Nadar. Their children were brought on record. This second appeal was filed by Panchavarnam and her children. This second appeal was admitted on the following substantial questions of law:- “(a) Whether the lower appellate Court is right in granting the relief of declaration of the suit properties by holding that the alienation and encumbrances made by the first defendant in favour of the defendants 3 to 5 are not valid in law and binding upon the shares of the plaintiffs 1 & 2? (b) Whether the defendants 4 & 5 are not the bona fide purchasers of the suit properties item Nos.10 & 14 for a valid sale consideration” 6. Heard the learned counsel for the appellants. He 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 appellants and set aside the judgments and decree passed by the Courts below insofar as they are concerned. 7. Per contra, the learned counsel for the contesting respondents submitted that the impugned judgment and decree passed by the first appellate Court do not call for any interference. 8. I carefully considered the rival contentions and went through the evidence on record. There is and there can be no dispute that Sankaran Chettiar was granted only life estate in respect of the suit properties under Ex.A9/Ex.B1. He had no authority whatsoever to alienate the suit properties. Yet he chose to do so. 8. I carefully considered the rival contentions and went through the evidence on record. There is and there can be no dispute that Sankaran Chettiar was granted only life estate in respect of the suit properties under Ex.A9/Ex.B1. He had no authority whatsoever to alienate the suit properties. Yet he chose to do so. Therefore, the first appellate Court rightly came to the conclusion that the alienations made by him are not binding on his children. It also rightly denied the relief of recovery of possession and mandatory injunction because the cause of action for such reliefs would arise only on the demise of Sankaran Chettiar. Sankaran Chettiar was admittedly alive when the suit was filed. It was he who filed the cross appeal. He is said to have passed away only on 26.10.2018. Therefore, the right to seek recovery of possession by the children of Sankaran Chettiar/plaintiffs would arise only on his demise and not till then. It was for this reason that the first appellate Court negatived those reliefs. 9. Now the question that arises for consideration is whether the relief of declaration could have been granted against the present appellants. As already noted, we are not concerned with the other alienations made by Sankaran Chettiar. What is to be considered is the validity of the alienation made by Sankaran Chettiar under Exs.A7 and A8. Ex.A8 is dated 21.09.1982. Ex.A7 is dated 26.11.1990. The suit was filed on 18.02.1998. I carefully went through the plaint averments. To seek the relief of declaration, one must move the Court within a period of three years. Of course, the period of limitation would start running from the date of knowledge. When the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaintiff shall show the ground upon which exemption from such law is claimed (Order VII Rule 6 of CPC). If the instrument in respect of which declaration is sought was executed beyond the period of three years from the date of filing of the suit, the suit will be time barred on the face of it. To bring it within limitation, there must be pleading that the plaintiff got knowledge of the facts constituting the cause of action only within three years from the date of filing of the plaint. If such pleadings are absent, the court cannot grant the relief of declaration. To bring it within limitation, there must be pleading that the plaintiff got knowledge of the facts constituting the cause of action only within three years from the date of filing of the plaint. If such pleadings are absent, the court cannot grant the relief of declaration. In this case, the plaintiffs have not made any averment that they became aware of the execution of Exs.A7 and A8 within three years prior to the filing of the suit. If such an averment had been made, then certainly the burden would have been on the contesting defendants to show that the suit was on the face of it barred by limitation. This aspect of the matter was not taken note of by the first appellate Court. Therefore, I have to necessarily interfere with the impugned judgment and decree. I answer the substantial questions of law in favour of the appellants. The impugned judgment and decree is set aside insofar as the appellants are concerned. However, this will not make any difference to the plaintiffs 1 and 2 or their legal heirs. Sankaran Chettiar had passed away only in the year 2018. If any suit for recovery of possession is filed within twelve years from the date of his death, the said suit is bound to be decreed. The rights of the plaintiffs 1 and 2 or their legal heirs to recover the properties will remain intact. 10. With this observation and clarification in favour of the plaintiffs 1 and 2, the judgment and decree passed by the first appellate is set aside insofar as the appellants are concerned and the second appeal is allowed. The third plaintiff did not file any appeal questioning the judgment and decree of the trial Court. It is also stated that the third plaintiff is party to Ex.A7. From this one can safely conclude that the third plaintiff was fully aware of alienations made by his father and that alienations were done with his knowledge. Therefore, he cannot impeach Ex.A7 and Ex.A8 in so far as his share is concerned. Same is the case with the second defendant/Manivannan who was a party to both the documents. 50% of the appellants' share in the properties covered under Exs.A7 and A8 is intact. The contest revolves around the remaining 50% of the share only. No costs. Consequently, connected miscellaneous petition is closed.