S.Mohan v. T.C.nagalingam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 16-04-2008CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENS.A.No.1145 of 20071.S.Mohan2.S.Harikrishnan3.S.Menaka4.S.Kabilasankari5.S.Bhuvaneswari6.S.Manikandan.. AppellantsVersus1.T.C.nagalingam2.S.Viswanathan(Impleaded 2nd respondentvide order of Court dated 05.12.207, made inM.P.No.2 of 2007 inS.A.No.1145 of 2007).. Respondents.PRAYER:Appeal against the judgment and decree, dated28.12.2006, passed in A.S.No.199 of 2006, on the file of theVI Additional Judge, City Civil Court, Chennai, confirmingthe judgment and decree passed in O.S.No.11578 of 1996, dated16.12.2005, on the file of the VI Assistant Judge, City CivilCourt, Chennai.For Appellants : Mr.S.SadasharamFor Respondents : Mr.B.T.SeshadriJ U D G E M E N TThis second appeal has been filed, against the judgmentand decree, dated 28.12.2006, passed in A.S.No.199 of 2006,on the file of the VI Additional Judge, City Civil Court,Chennai, confirming the judgment and decree passed inO.S.No.11578 of 1996, dated 16.12.2005, on the file of the VIAssistant Judge, City Civil Court, Chennai.2. For the sake of convenience the parties in the appealare referred to as they have been arrayed in the suit inO.S.No.11578 of 1996. https://hcservices.ecourts.gov.in/hcservices/

3. The brief facts of the case as stated in the plaintfiled by the plaintiff in O.S.No.11578 of 1996, on the fileof the VI Assistant Judge City Civil Court, Chennai are asfollows:The plaintiffs and the defendants are the sons anddaughters of late T.Chockalingam, who had died intestate atMadras. Late T.Chockalingam, the first, second and thirdplaintiffs and the first defendant had equally contributedtowards the purchase of the house site bearing Door No.57,Thiruvalluvarpettai, Raja Annamalaipuram, Chennai, with anextent of 1203 sq.ft. The said property was purchased in thename of late T.Chockalingam, on 14.12.1957. Though it waspurchased in the name of T.Chockalingam, the plaintiffs andthe defendants were enjoying the property. The firstplaintiff had put up a superstructure in an extent of about700 sq.ft., on the eastern side of the house site, morefullydescribed in the schedule forming part of the plaint, withhis own funds. As such the first plaintiff is the absoluteowner of the said superstructure and the other plaintiffs anddefendants are the joint owners of the house site. Takingadvantage of the old age of the deceased T.Chockalingam, thefirst defendant, in collusion with one Santhanam, had forcedT.Chockalingam, to execute a sale deed, dated 26.6.1984,whereby, an extent of 495 sq.ft of vacant site, forming partof the western side of the suit property, was sold to and infavour of Santhanam. Thereafter, the said Santhanam startedto interfere with the peaceful possesssion and enjoyment ofthe suit property occupied and enjoyed by the plaintiffs.Santhanam had also filed a suit in O.S.No.7790 of 1986against the first plaintiff and the sons of the thirdplaintiff, with regard to an extent of 495 sq.ft on thewestern side of the suit property. The said suit was decreedby a judgment and decree, dated 11.9.1990. The appeal inA.S.No.239 of 1991, had also been dismissed. Thereafter, thefirst plaintiff had preferred a second appeal. Santhanam hadalso filed another suit in O.S.NO.6641 of 1988, against thedeceased T.Chockalingam and his legal heirs, with regard tothe poramboke land, occupied by the first plaintiff and thefourth plaintiff by putting up a hut in between the property,having an extent of 495 sq.ft, purchased by Santhanam and hisother property at Jeth Nagar.b) The first, third and fourth plaintiffs arepossessing, occupying and enjoying the house property bearingNo.57, at Thiruvalluvar Pettai, Raja Annamalaipuram, Chennai,on the eastern side of the suit property. The first plaintiffis the absolute owner of the superstructure and is alsohaving 1/7th share in the house site of an extent of 708sq.ft. The first defendant had got the sale deed executed by https://hcservices.ecourts.gov.in/hcservices/ the deceased T.Chockalingam in favour of Santhanam by usingmischievous means and had misappropriated the entire saleconsideration, leaving the deceased T.Chockalingam indistress. The first plaintiff is having a service connectionto the suit property in his own name and when Santhanam hadattempted to interfere with the power supply to the house inthe suit property, the first plaintiff had filed a writpetition before this Court in W.P.No.11949 of 1987. Based onthe directions issued by the Court, the power supply to thehouse had been granted. The first defendant who has only1/7th share in the house site of an extent of 708 sq.ft.,over which the first plaintiff has put up his ownsuperstructure, had obtained a settlement deed, on11.07.1984, by fraud and coercion and by misleading thedeceased T.Chockalingam. The fraud played on the deceasedT.Chockalingam came to the notice of the plaintiff only whenthe Divisional Engineer, Tamil Nadu Electricity Board, by hisletter, dated 28.06.1996, called upon the first plaintiff tosubmit his explanation as to why the power supply to thehouse in the suit property should not be transferred to andin favour of the first defendant. c) It was also stated that the first defendant is havingall the documents to prove his ownership of the suitproperty. The first plaintiff had submitted an explanation tothe Tamil Nadu Electricity Board and had also applied for acertified copy of the alleged settlement deed, dated11.07.1984. The certified copy of the settlement deed wasissued to the plaintiff, on 09.07.1996. It was found that the708 sq.ft of the house site, with the superstructure thereon,namely, the premises bearing Door No.57, ThiruvalluvarPettai, Raja Annamalaipuram, Chennai, had been sold to and infavour of the first defendant. The said deed is vitiated byfraud, coercion and misrepresentation and therefore, it isnull and void. d) The first defendant is having only an 1/7th share inthe suit property and the other plaintiffs and the seconddefendant are having 1/7th share each. The first defendanthas got no right title or authority to interfere with theplaintiffs' peaceful possession and enjoyment of the suitproperty and the first defendant can claim only 1/7th sharein the property. Since the first defendant is makingarrangements and attempting to interfere with the peacefulpossession and occupation and enjoyment of the suit propertyby the first, third and the fourth plaintiffs, the presentsuit had been filed. 4) In the written statement filed by the firstdefendant, it has been stated that the first defendant had https://hcservices.ecourts.gov.in/hcservices/ admitted the relationship of the plaintiffs and defendants asalleged in the plaint. Further, the claim that the first,second and third plaintiffs and the first defendant hadequally contributed for the purchase of the house site in thesuit property has been denied. It is only the first defendantwho has paid the entire sale consideration and purchased thesite in the name of his father. None of the plaintiffs havecontributed for the purchase of the site. The first defendanthad put up a superstructure on the property out of hispersonal earnings. The admissions made by the third defendantand her daughter in the letters, in the year 1977 wouldclearly prove the ownership of the first defendant over thesuit property. The claim that the plaintiffs and thedefendants were enjoying the suit property was denied. Theproperty tax is assessed in the name of the first defendantand he is paying the taxes. To discharge the mortgage, aportion of the property had been sold by the father of thefirst defendant. The sale in favour of Santhanam is valid andit was so decided in the suit filed by the first plaintiffagainst Santhanam. The decision in O.S.No.7790 of 1986, withregard to the title of T.Chockalingam to the suit property,is final and it cannot be reagitated in the present suit.Therefore, the suit is barred by resjudicata.5) The plaintiffs are not the owners and they are notenjoying the property in their own right. They are permittedto occupy the building since the first defendant was aresident of Bombay. Therefore, he had allowed his brothersand sisters to occupy the suit property and they are onlypermissive occupants of the suit property and they have noright, title or interest in it. The claim by the plaintiffsthat they came to know about he settlement deed only in theyear 1996 is a blatant lie. The allegation that lateT.Chockalingam was not healthy and that he did not executethe settlement deed with full knowledge of his action isincorrect. It is only the first defendant who has the rightover the suit property. Since the plaintiffs have no rightover the property they cannot maintain the present suit forpartition. Since the suit is not properly valued and theappropriate Court fee was not paid and since the suit isbereft of any material particulars and also due to the reasonthat there is no cause of action, the suit is liable to bedismissed with costs.6. Based on the pleadings, the trial Court had framedthe following issues for consideration:1) Whether the plaintiffs are entitled for therelief of declaration as prayed for and to declarethe settlement deed, dated 11.07.1984, as null andvoid. https://hcservices.ecourts.gov.in/hcservices/ 2) Whether the plaintiffs are entitled totheir shares in the suit property as prayed for?3) To what other reliefs?7. On considering the oral as well as the documentaryevidence adduced, the trial Court refused to accept the caseof the plaintiff that the deceased first plaintiff hadcontributed money for the purchase of the house site in thesuit property. The trial Court had found that the property inquestion, was the absolute property of late T.Chockalingamand that he was entitled to deal with the property in themanner he liked. The trial Court had also held that thesettlement deed, dated 11.07.1984, executed in favour of thefirst defendant T.C.Nagalingam was valid, since there was noproof of fraud, undue influence, or coercion. Therefore, thetrial Court had denied the relief of declaration as prayedfor by the plaintiffs to set aside the deed of settlement.The trial Court had also found that P.W.1 had admitted thathe was aware of the settlement at the time it was executed.It was also seen that late T.Chockalingam had died in theyear 1990 and no objection had been raised during his lifetime with regard to his right to execute the settlement deedin respect of the suit property. Thus, the trial Court haddismissed the suit in O.S.No.11578 of 1996, by its judgmentand decree, dated 16.12.2005.8. Aggrieved by the judgment and decree of the trialCourt, dated 16.12.2005, made in O.S.No.11578 of 1996, therespondents had filed an appeal in A.S.No.199 of 2006.9. Considering the rival contentions, the FirstAppellate Court had framed the following points forconsideration:1) Whether the appellants/plaintiffs areentitled for a declaration?2) Whether the appellants/plaintiffs areentitled for the relief of partition?10. The First Appellate Court had held that theplaintiffs have been aware of the settlement even at the timeof its execution in the year 1984. Since the suit had beenfiled by the plaintiffs beyond the period of limitation,settlement deed was not liable to be set aside. Since therespondents had not given particulars with regard to theallegation of fraud, and since such a claim could not besubstantiated by evidence, the First Appellate Court hadrefused to accept the claim of the plaintiffs. It was alsoheld that the plaintiffs have failed to prove that they had https://hcservices.ecourts.gov.in/hcservices/ contributed money for the purchase of the house site in thesuit property and that they had contributed money for theconstruction of the superstructure. Since late T.Chockalingamhad executed the settlement deed in favour of the firstdefendant and the plaintiffs could not sufficiently provethat the settlement deed was obtained by fraud or coercion,the plaintiffs were not entitled to claim any right in theproperty. Thus, the First Appellate Court had confirmed thejudgment and decree passed by the trial Court. In suchcircumstances, the plaintiffs have filed the present secondappeal before this Court, raising the following substantialquestions of law:a) Whether the kartha of the joint familynamely the deceased Chockalingam can execute theSettlement deed, dated 11.07.1984, with respect tothe suit property which is a joint family propertyof late Chockalingam and his sons?b) Whether the Settlement deed, dated11.07.1984, is valid in law when the deceasedChockalingam who executed the Settlement deed wasnot the absolute owner of the entire suit proeprty?c) Whether the Settlement Deed dated11.07.1984 is vitiated by fraud played by therespondent on deceased Chockalingam which is provedby the evidence available on record?d) Can the Courts below give findings againstthe appellants contrary to the categorical evidenceavailable on record as to the fraud played by therespondent on deceased Chockalingam with respect tothe suit property?e) When the suit property had been treated asa joint family property all along, can it besubjected to any settlement by late Chockalingamwho was only one of the co-owners of the same andkartha of the joint family?f) Whether the Courts below are justified inrejecting the claim of the appellants for partitionand separate possession of 2/7th share in the suitproperty when the suit property is the joint familyproperty of which late Chockalingam was the karthaof the joint family?11) The learned counsel appearing on behalf of theappellants had contended that the Courts below had erred incoming to the conclusion that the plaintiffs have not provedthat they had contributed money to purchase the suit housesite in the suit property and that the allegation of coercionand fraud, with regard to the execution of the settlementdeed, dated 11.07.1984, could not be proved. Even thoughthere was sufficient evidence, the Courts below had arrived https://hcservices.ecourts.gov.in/hcservices/ at a wrong conclusion. It was alleged that the property is ajoint family property of which late T.Chockalingam was theKartha. He had no right to execute a settlement deed withoutthe consent of the other family members, with regard to thejoint family properties.12. The learned counsel appearing on behalf of thedefendants had submitted that such a plea had not been raisedby the plaintiff and therefore, they should not be permittedto do so at this stage.13. Considering the contentions raised on behalf of theparties concerned and in view of the documents available,this Court is of the considered view that the plaintiffs havefailed to sufficiently prove their claims. Even though theplaintiffs had pleaded that late T.Chockalingam had executedthe settlement deed, dated 11.07.1984, in favour of the firstdefendant based on fraud and coercion, they could notsubstantiate such a claim. When such a claims are made by theplaintiffs it is for the plaintiffs to prove them, by way oforal and documentary evidence. In the present case, it isfound that the plaintiffs have failed to substantiate theirclaims by sufficient evidence. Further, the plaintiffs havenot been in a position to prove that they had contributedmoney for the purchase of the house site in the suit propertyand for putting up a superstructure thereon. Further, theplaintiffs have not been in a position to show that theproperty in question was purchased by late T.Chockalingam asthe kartha of the joint family. It was not the case of theplaintiffs, as stated in the plaint filed in the suitO.S.No.11578 of 1996, on the file of the VI Assistant CityCivil Court, Chennai, that late T.Chockalingam was the karthaof the joint family and that the property in question belongsto the joint famly of late T.Chockalingm and his sons. Such aplea, not having been raised earlier, cannot be pleaded atthis stage.14. In such circumstances, this Court is of theconsidered view that the judgment of the Courts below cannotbe interfered with by this Court in the present secondappeal. Hence, the second appeal is dismissed. No costs. Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ cshTo1.The VI Additional Judge, City Civil Cour,Chennai.2.The VI Assistant Judge, City Civil Court,Chennai.One cc to Mr.S.Sadasharam, advocate SR.No.21335one cc to Mr.B.T.Seshadri, advocate SR.No.21292S.A.No.1145 of 2007CMP[CO]SKY/28/4