High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 19.01.2007CORAM:THE HON'BLE MR.JUSTICE M.CHOCKALINGAMS.A.NO.1376 OF 19941.Dhandapani Asari2.Dhanalakshmi ..... Appellants/defendants 1&2Vs.1.Adhilakshmi Ammal(died)2.Govindammal3.Mayakishna Asari4.Natarajan(Given up)5.Periyanayakam6.Shantha7.Sarala8.Punchavarnam9.Dhanakshimoorthy ...Respondents/Plaintiff & defendants 3 to 5(Respondents 5 to 9 are broughton record as the legal representativesof the deceased 1st respondent videorder dated 11.6.1996 inCMP.No.8012 of 1995 by Dy.Rr.) Second appeal filed u/s 100 of C.P.C against the Judgment anddecree dated 29.10.1993 in A.S.No.36 of 1993 before the Additional SubCourt, Cuddalore against the judgment and decree dated 20.1.1993 inO.S.No.471 of 1985 on the file of the Principal District Munsif, Cuddalore. https://hcservices.ecourts.gov.in/hcservices/ For Appellants: MR.Hema Sampath,Sr.Counsel for Mr.R.SubramanianFor Respondents: Mr.R.Gururaj5 to 9 Respondent-1 :died steps taken Respondents 2&3: NA Respondent 4 : given up J U D G M E N TChallenging the judgment of the learned Subordinate Judge,Cuddalore made in A.S.No.36 of 1993, defendants 1 and 2 whose defenceplea has been rejected, have brought forth this Second appeal.2. The short facts which lead the plaintiff to seek therelief of declaration and permanent injunction in respect of the suitproperties are as follows: The suit properties originally belonged to the first defendantwho sold the same on 4.9.1969 for a consideration of Rs.200/-. It was avalid sale and in so far as the second item is concerned, it wasmistakenly described. When it was questioned, the first defendant repliedthat there was no encumbrance over the same. Subsequently it was foundthat the property was mortgaged to one Subburaya Gounder and forredemption of the same, the plaintiff filed O.S.No.44 of 1978. Pendingsuit, Subburaya Gounder died and the first defendant was also added assecond defendant and in so far as the second item of the property isconcerned, compromise was entered on 26.11.1980 whereby survey number wascorrected and the plaintiff was put in possession and thus both theproperties are in possession of the plaintiff. Plaintiff has been payingkist for the first and second item of properties. While the matter stoodthus, the defendants attempted to interfere with the possession of theproperties with the plaintiff and also questioned the title. Under suchcircumstances, the suit has been filed.3. The first defendant filed a written statement statingthat the alleged sale deed dated 4.9.1968 was not genuine, but it was shamand nominal. In order to escape from the clutches of the creditors, thefirst defendant has executed such a sale deed. In so far as the second https://hcservices.ecourts.gov.in/hcservices/ item is concerned, it was also not shown as one of the item of sale andthus the plaintiff cannot claim right over the second item of property. Inso far as the second item of property is concerned, the first defendantwas set exparte and hence it is not binding on the first defendant andapart from this, there was also a settlement deed executed by the owner ofthe property.4. The second defendant filed a written statement statingthat the property was originally belonged to one Mangalakshmi whoexecuted a settlement deed wherein only the first defendant and his stepbrother Mayakrishnan were given life interest and after their lifetime, itshould go to the heirs of those persons. Under such circumstances,Dhandapani,the first defendant has no right to execute the sale deed.Hence, the suit must be dismissed. 5. Necessary issues were framed and on trial, the trial Courtoriginally decreed the suit. Aggrieved over the same, the first defendanttook it on appeal in A.S.No.153 of 1989 and a remand order was passed on6.2.1991 whereby a direction was given to the lower Court to go into thequestion whether the first defendant had competent to execute the saledeed and if to be so, to what extent it is binding. Again it was taken bythe trial Court. Pending suit, the fourth and fifth defendant were addedas party. The trial Court after giving sufficient opportunity to theparties found that the plaintiff is entitled for the relief asked for.Aggrieved defendants took it on appeal in A.S.No.36 of 1993 whereby thejudgment of the trial Court was affirmed. Aggrieved defendants havebrought forth this second appeal.6. At the time of admission, the following substantialquestions of law were formulated:1. Whether the courts below are correct inoverlooking the object of Section 15 of the HinduSuccession Act as per which the first appellant aswell as Nallathambi were class one heirs of thedeceased Mangammal entitled to get their respectiveshares? 2. Whether the Courts below are correct inholding that the plaintiff had proved his title to thesuit property as a whole ignoring the dictum that noperson could convey a right to another more than whathe himself had?3. Whether in law Courts below were correct inholding that mere admission on the part of defendants4 and 5 that they had no interest in the suit propertywould convey absolute right to the first appellant?7. Advancing his arguments on behalf of the appellants,learned counsel for the appellants would submit that the propertyoriginally belonged to one Valliammal who sold the property in the year1931 in favour of the said Mangalakshmi. Mangalakshmi is the first wife of https://hcservices.ecourts.gov.in/hcservices/ Nalla Thambi Achari. She sold the said property in favour of her husbandNalla Thambi Achari and Nalla Thambi Achari again sold the said propertyon 9.1.1952 in favour of Mangalakshmi under Ex.A15. She also executed thesettlement deed under Ex.A16 on 11.10.1958 wherein it is clearly statedthat Nallathambi had two wives. The first wife was Mangalakshmi and thesecond wife was Govindammal. Mangalakshmi had one son Dhandapani andGovindammal had one son Mayakrishnan, who are shown as 1st and 5th defendantin the suit. Mangalakshmi, while executing the settlement deed, which ismarked as Ex.A16 has categorically stated that both Dhandapani andMayakrishnan were given life interest in the property and after theirlifetime, it should go to their heirs. Under such circumstances, the deedexecuted by Dhandapani DW1, would not bind on the parties. Apart fromthis, DW1 did not execute the deed in respect of second item of theproperty . The sale deed in Ex.A1 is in respect of 9 cents and the surveynumber is 31/4 and not 31/5. Even assuming that the contention put forthby the plaintiffs that the settlement was subsequently cancelled, sincethere was no reservation in the settlement deed under Ex.A15, it will notbind on them. Under those circumstances, there cannot be any revocation asfound in Ex.A17. Added further the learned counsel, in the instant case,even assuming Ex.A1 deed is valid, it is valid only to the extent of sharewhich fell into Dhandapani. Mangalakshmi died in the year 1963 leavingbehind Dhandapani, the first defendant her son and her husband Nallathambiand the half share devolved on Nallathambi and half share devolved onDhandapani . Nallathambi died intestate on 18.2.1970. His half sharedevolved upon Dhandapani 1/3, Govindammal, his second wife 1/3 andMayakrishnan -1/3 his second son and therefore Dhandapani got 5/6 share.Thus, both the Courts below came to the conclusion that Ex.A1 sale deed isvalid one and that would be to the extent of 5/6 share and only to thatextent, declaration can be granted. But, in view of the finding that thesale deed is sham and nominal as put forth by the first defendant, theentire document will convey title to them. In so far as second item whichwould be the subject matter covered under sale deed, both the Courtsbelow have not considered this aspect of the matter either on facts orlaw. Hence, the decree granted has got to be set aside by this Court.8. Heard the learned counsel for the respondent on theabove submissions. According to the learned counsel for the respondent,the sale deed which was executed under Ex.A1 is valid. It is not incontroversy that the property originally belonged to Valliammal who soldthe property to Mangalakshmi. The said Mangalakshmi sold the propery inSurvey No.13 and on her death, it came to the hands of her husbandNallathambi and Dhandapani. In the instant case, on the death of NallaThambi, the husband of Mangalakshmi, the entire property would devolveupon Dhandapani who was competent to execute Ex.A1 sale deed. Learnedcounsel further add that the contention put forth by the appellant's sidehas been rightly rejected stating that settlement deed dated 11.1.1958under Ex.A16 was revoked subsequently, though settlement executed didnot come into force. After execution of settlement deed, Mangalakshmiexecuted a mortgage deed and in that mortgage deed also, the firstdefendant was added as party to the mortgage. Under such circumstances, it https://hcservices.ecourts.gov.in/hcservices/ would be indicative of the fact that though settlement executed byMangalakshmi did not come into force and it is an added fact thatsubsequently it was cancelled, entire property would devolve uponDhandapani under Ex.A1 sale deed. Both the Courts below have rejectedEx.A1 and apart from this, the second item of property is concerned, suitwas filed by the plaintiff and the first defendant was added as a partywas correct. Both the Courts below denied declaration and also relief ofconsequential permanent injunction and hence the appeal has got to bedismissed.9. After careful perusal on the rival submissions made,this Court is of the considered opinion that both the appeals do not meritacceptance whatsoever. It is not in controversy that the propertyoriginally belonged to Mangalakshmi, wife of Nalla Thambi and shepurchased the property in the year 1931 under EX.A14 and she sold the samein favour of her husband Nalla Thambi and again he re-conveyed theproperty in favour of his wife on 9.1.1952 under Ex.A15. Thus,Mangalakshmi became the absolute owner of the property. Mangaslakshmi diedin 1963. The first contention put forth by the defendant side was thatEx.A1 executed by the first defendant on 14.9.1968 was sham and nominalwhich has been rightly rejected by both the Courts below. Having executedthe sale deed, without any material whatsoever, the first defendant cameforward with the plea that in order to escape from the clutches of thecreditors, he executed the sale deed. Inso far as the first item of theproperty is concerned, 9 cents of land was sold under Ex.A1 deed and inso far as the second item, there was a suit filed by the plaintiff inO.S.No.44 of 1978 wherein the contesting first defendant was also added asa party and now there was a compromise decree entered into wherein surveynumber was rectified as 31/5 and the plaintiff has been put in possession.Thus, in so far as Ex.A1 is concerned, both the items of properties havebeen actually conveyed by the first defendant. Now the question wouldarise whether the first defendant was competent enough to execute Ex.A1sale deed. The fact that the property originally belonged to Mangalakshmiis not in controversy. Mangalakshmi died on 16.2.1963. The contention putforth by the defendant all along was that Mangalakshmi executed asettlement deed as found in Ex.A16 and under the settlement deed, she gavelife interest to the first defendant Dhandapani and also Mayakrishnan whois shown as 5th defendant, the son of Nalla Thambi through his second wifeGovindammal. It is indicative of the fact that settlement deed did notcome into force till date and settlement deed executed on 11.1.1958 andsubsequent to the cancellation of the settlement deed, there wasrevocation under Ex.A17. At this juncture it is to be pointed out that thefirst defendant who came forward to claim right under challenge, the suitin the settlement deed was also parted with his mother Mangalakshmi inexecuting mortgage deed in favour of third party wherein it has beenclearly indicated that Mangalakshmi retained the property with her,despite settlement deed and the settlement deed have thus executed byMangalakshmi did not come into force. Thus, the defence plea is that therewas a settlement deed andas per the provision of the restoration ofsettlement deed the first defendant is not competent to execute the deed . https://hcservices.ecourts.gov.in/hcservices/ Mangalakshmi died in the year 1963, leaving behind her husband Nallathambiand also Dhandapani, only son each entitled to 1/2 share. So far asNallathambi is concerned, he died on 18.2.1970 leaving behind firstdefendant, as sole heir. Needless to say that Govindammal was shown as D4and Mayakrishnan as D5, though added as party to the suit, they have alsofiled written statement stating that the sale deed in favour of theplaintiff bind on the first defendant as party and though the plaintiffwas in possession of the property, in short, he did not claim any share.Apart from that by operation of law, neither the fourth defendant nor thefirth defendant , son through the second wife of Nallathambi would layclaim over the suit property. The suit property entirely devolved upon thefirst defendant by operation of law who actually executed Ex.A16,settlement deed which covered under second item of the property which isthe subject matter of the suit. Both the Courts below gone into the matterand marshaled the evidence properly and recorded a reasoned judgment whichdoes not require any interference in the hands of this Court. The appealis dismissed. No costs.VJY Sd/- Asst.Registrar /true copy/ Sub Asst.RegistrarTo1.Additional Sub Court, Cuddalore 2.Principal District Munsif, Cuddalore.3.The Section officer, V.R.Sectio High Court,Madras.+1 cc to Mr.R.Gururaj, Advocate Sr.No.3711.+1 cc to M/s.Hema Sampath, Advocate Sr.No.3482.TEJ(CO)dcp/23.3.07S.A.NO.1376 OF 1994