Visvanathan v. Ramanujam

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:01.04.2011CORAM:THE HON'BLE MR.JUSTICE T.MATHIVANANS.A.No.763 of 2002Visvanathan....Appellant/Plaintiff Vs.1.Ramanujam2.Vedam3.Santha4.Anjammal..... Respondents/DefendantsPrayer : Appeal filed under Section 100 of the Code of CivilProcedure, against the Judgment and Decree dated 23.01.2002 and madein A.S.No.15 of 2001, on the file of the learned Additional DistrictJudge, Nagapattinam, modifying the Judgment and Decree dated17.10.2001 and made in O.S.No.232 of 2000, on the file of the learnedAdditional Subordinate Judge, Nagapattinam. For Appellant : Mr.K.Chandramouli, Senior Counselfor M/s.K.M.Nalini Shree For Respondents : Mr.R.Subramanian, Senior Counselfor Mrs.S.Hemalatha for R1 No appearance for RR2 to 4J U D G M E N TThis second appeal is directed against the Judgment and Decreedated 23.01.2002 and made in A.S.No.15 of 2001, on the file of thelearned Additional District Judge, Nagapattinam, modifying theJudgment and Decree dated 17.10.2001 and made in O.S.No.232 of 2000,on the file of the learned Additional Subordinate Judge, Nagapattinam.2. The facts, which giving rise to the memorandum of secondappeal are detailed as under:The plaintiff and the defendants are the sons and daughters ofone Govindasamy Pillai. The suit properties are the ancestral andjoint family properties of the plaintiff, first defendant and theirfather Govindasamy Pillai. The said Govindasamy Pillai had died inthe year 1988 and his wife Kunjammal had pre-deceased him. Hence, https://hcservices.ecourts.gov.in/hcservices/ the plaintiff and the defendants are the legal heirs of the deceasedGovindasamy Pillai.3. The plaintiff and the first defendant are in the managementof the suit properties. The plaintiff and the first defendant are,by their birth right and under a Will dated 15.02.1954, entitled to1/3 share each over the suit properties. Besides this, the plaintiffand the defendants are each entitled to 1/5 share in their father's1/3rd share. Thus, the plaintiff and the first defendant are eachentitled to 6/15 share and the defendants 2 to 4 are each entitled to1/15 share. Since the defendants were evading partition, theplaintiff had filed the present suit for partition and separatepossession of his 6/15th share over the suit properties.4. The first defendant had contended that a rice mill and itssite had not been included in the suit as the same are belonged tojoint family. Taking undue advantage of the poor vision of theirfather, the plaintiff had fraudulently obtained a document from himto make it appear as if he had purchased the said mill and its sitefrom their father. After coming to know about this fact their fatherhad sent a petition to the District Supply Officer, Thanjavur on24.07.1986, requesting not to effect name transfer in respect of thisWill in the name of plaintiff. Govindasamy Pillai had no right toexecute any sale in respect of the mill and its site, which is also apart of the ancestral coparcenary property and therefore theplaintiff cannot claim any independent right over the said property.5. In the Panchayath held on 11.07.1998, the properties werefinally partitioned between the parties and accordingly a partitionchit was written and signed by the plaintiff and the first defendant.As noted in the chit, A-Schedule property was allotted to theplaintiff and the B-Schedule property was allotted to the firstdefendant. Similarly, certain properties were also allotted to thedefendants 2 to 4. Hence, the suit for fresh partition is notsustainable. The mill building and the land comprised inR.S.Nos.291/2 and 291/3 of Azhinjamangalam Village shall have to beincluded in the partition.6. The defendants 2 to 4 have agreed with the claim of theplaintiff and they have also claimed each 1/15 share over the suitproperties. They have also paid necessary Court fee ie.Rs.100/- fortheir respective shares.7. Based on the pleadings of the parties to the suit, the trialCourt had formulated as nearly as the following four issues for thebetter adjudication of the suit:1.Whether the plaintiff is entitled to 6/15th shareover the suit properties?2.Whether the plaintiff is entitled to further mesneprofits as prayed for? https://hcservices.ecourts.gov.in/hcservices/

3.Whether the defendants 2 to 4 are entitled toshare over the suit properties?4.To what relief is the plaintiff entitled?8. The plaintiff had examined himself as PW1 and during thecourse of his examination Exs.A1 to A7 were marked. On the otherhand, the first defendant had examined himself as DW1 and during thecourse of his examination Exs.B1 to B6 were marked. Neither oralnor documentary evidences were adduced on behalf of the otherdefendants.9. On appreciation of evidences and other materials available onrecord, the trial Court had passed a preliminary decree for partitionin the following manner:1.The plaintiff is allotted with 6/15 share over thesuit properties.2.The defendants 2 to 4 are allotted 3/15 share overthe suit properties.3.The allotment of properties by metes and boundwill be considered in the final decree proceedingby appointment of advocate commissioner.10. Being aggrieved by the Judgment and decree passed by thetrial Court dated 17.10.2001, the first defendant had preferred thefirst appeal before the learned Additional District Judge atNagapattinam on the following grounds:(a) that on 11.07.1998 a final partition was effectedin the presence of Panchayatars and the properties wereallotted to the plaintiff as well as to the first defendantand they are also in possession and enjoyment of theirrespective shares and hence there is no need for the secondpartition, (b) that the mill and its site measuring about 8 cents,comprised in R.S.Nos.291/2 and 291/3 are also liable to bepartitioned. This property was also subjected to partitionas evident from Exs.B1 and B2, (c) that the plaintiff had failed to produce anydocumentary evidence to show that he had purchased the milland its site from his father, (d)that in the partition effected on 11.07.1998 thedefendants 2 to 4 were also given properties as evident fromExs.B1 and B2. Since they had not objected the claim of theplaintiff, the conclusion of the trial Court that they arealso entitled to get share is erroneous and that the trial https://hcservices.ecourts.gov.in/hcservices/ Court had lost sight over the fact that only for the welfareof their family, the plaintiff and the first defendant'sfather had acquired the share of Natesa Pillai in a suitwhich were tried between them.11. On hearing both sides and on appreciation of the relatedmaterials on record, the first appellate Court has set aside thefindings of the trial Court that the mill and its site measuringabout eight cents, comprised in R.S.Nos.291/2 and 291/3 ofAzhinjamangalam Village are not liable to be partitioned andconcluded that the plaintiff and the first defendant are eachentitled to 6/15 share in the suit property including the mill andits site measuring about eight cents, comprised in R.S.Nos.291/2 and291/3 of Azhinjamangalam Village. 12. Similarly, the first appellate Court has also confirmed thefindings of the trial Court that the defendants 2 to 4 are eachentitled to get 3/15 share from the properties. Accordingly, theJudgment and Decree dated 17.10.2001 and made in O.S.No.232 of 2000,on the file of the learned Additional Subordinate Judge, Nagapattinamwas modified by the first appellate Court.13. Challenging the Judgment of the first appellate Court, theplaintiff has approached this Court by way of this second appeal.14. The second appeal came to be admitted on the followingsubstantial questions of law:"1.Whether the lower appellate Court erred inlaw in holding that R.S.Nos.291/2 and 291/3 (8cents) are available for partition when they ceasedto be joint family properties by virtue of thealienation made by the father in favour of theplaintiff?2.When the sale of the said two survey numbersby the father Govindasamy Pillai in 1984, not havingbeen questioned either by Govindasamy Pillai or byhis son, the first defendant, within the period oflimitation, whether the lower appellate Court erredin treating the said items as joint familyproperties and granting decree for partition?"15. This second appeal hinges around the mill and the landmeasuring about eight cents, comprised in R.S.Nos.291/2 and 291/3situated at Azhinjamangalam Village. Admittedly, the propertiesdescribed as mill and the land measuring about eight cents have notbeen included in the schedule of properties for being partitioned inthe suit. In the written statement, the first defendant hadcontended that the mill and the land are also joint family propertiesand as such they are liable to be partitioned. https://hcservices.ecourts.gov.in/hcservices/

16. A contention was raised by the plaintiff before the trialCourt that the mill and the land were purchased by him from hisfather through a sale deed and as such he became the absolute ownerof the same and therefore it could not be subjected to partition asthey are his exclusive properties.17. On the other hand, the first defendant had contended thattaking undue advantage of poor vision of his father, the plaintiffhad played fraud and obtained fraudulent document to make it appearas if he had purchased the said properties from their father. He hadalso contended that their father Govindasamy Pillai was not havingany exclusive right to transfer the properties in the name of theplaintiff. The contentions of the plaintiff as well as the firstdefendant were analysed deeply by the learned trial Judge. 18. The contention of the first defendant was however rejectedby the trial Court and found that as seen from Ex.A1, Will, the millbuilding was in dilapidated state at the time of partition and a halfof the property was allotted to Govindasamy Pillai and the other halfwas allotted to Natesa Pillai. It has also found that as admittedby the first defendant, in his cross-examination that in a subsequentsuit, his father had purchased the other half of the propertyallotted to Natesa Pillai in a Court auction and thus the whole millproperty came to be in possession of Govindasamy Pillai and as suchhe had executed a sale deed in the year 1984 in favour of theplaintiff in respect of the mill building and its site. The trialJudge has also found that the sale deed in favour of the plaintiffwas not legally set aside and therefore the first defendant could notclaim any right over the mill and the land and hence it could not besubjected to partition.19. The first appellate Court had set aside this finding with anobservation that the mill as well as the land are also the jointfamily properties of the plaintiff as well as the first defendant andhence the property must be subjected to partition. It is also foundthat both the plaintiff and the first defendant are each entitled toget 6/15 share in the suit property including the mill and the landand accordingly the Judgment of the trial Court was modified.20. The finding of the first appellate Court has been vehementlyobjected to by the plaintiff in this appeal.21. Mr.K.Chandramouli, learned senior counsel appearing forMrs.K.M.Nalini Shree, learned counsel who is on record for theappellant has taken this Court through the Judgment of the trialCourt as well as the first appellate Court. In this connection, hehas submitted that the finding of the first appellate Court that themill and the land, which were enjoyed by the grandfather of theplaintiff and the first defendant cannot be termed as the exclusive https://hcservices.ecourts.gov.in/hcservices/ property of the father of the plaintiff and the first defendant andthat the mill and the land also form part of the joint familyproperty and therefore liable to be partitioned is absolutelyerroneous and it has not been justified by the first appellate Court.22. Further, the learned counsel has also indicated the findingsof the trial Court that the no legal action was taken to set asidethe sale either during the life time of their father GovindasamyPillai or after his death by the first defendant and therefore thesale deed in respect of the mill and the land executed by theirfather has become valid and genuine.23. Further, the learned counsel has also made reference to PageNos.11 and 12 of the Judgment of the first appellate Court, in which,it is observed that in so far as the joint family properties areconcerned the father of the plaintiff can transfer his own share andhe cannot transfer the properties in which the plaintiff as well asthe first defendant are having their respective shares. The firstappellate Court has also found that since the alleged sale deed isnot a valid one, there is no necessity to cancel the document withinthe period of three years. 24. In this connection, the learned counsel has made referenceto Sections 15, 16, 17, 18 and 19 of the Indian Contract Act, 1872.Sections 15 and 16 defines the terms "Coercion" and "Undueinfluence". Section 17 defines "Fraud", Section 18 defines"Misrepresentation" and Section 19 defines "Voidability of agreementswithout free consent". Section 19 of the Indian Contract Act, 1872reads as follows:"19.Voidability of agreements without freeconsent.- When consent to an agreement is causedby coercion, fraud or misrepresentation, theagreement is a contract voidable at the option ofthe party whose consent was so caused.A party to a contract, whose consent wascaused by fraud or misrepresentation, may, if hethinks fit, insist that the contract shall beperformed, and that he shall be put in theposition in which he would have been if therepresentations made had been true.Exception.-If such consent was caused bymisrepresentation or by silence, fraudulentwithin the meaning of section 17, the contract,nevertheless, is not voidable, if the party whoseconsent was so caused had the means ofdiscovering the truth with ordinary diligence. https://hcservices.ecourts.gov.in/hcservices/

25. In support of his argument, the learned counsel has placedreliance upon the decision in Rajamani Ammal v. Bhoorasami, reportedin AIR 1974 Madras 36 (V 61 C15). In this Case, the plaintiff wasthe appellant. She filed a suit for a declaration of her title tothe suit properties consisting of eight items and for possession ofthe same from the defendants with mesne profits. The plaintiffclaimed that the suit properties originally belonged to her motherAlamelu Ammal, she having purchased the same with her own funds fromone Venkatachala Padayachi under a sale deed Ex.A2, dated 08.04.1935for a sum of Rs.500/-, that the plaintiff has become the stridhanaheir of her mother , and that as the plaintiff was a minor at thetime of her mother's death her father Kannusami Padayachi and afterhis death the first defendant, her brother, had been managing thesuit properties on her behalf. The plaintiff alleged that neitherher father, Kannusami Padayachi nor her brother, the first defendanthad any right or interest over the suit properties, but that takingadvantage of the fact that the plaintiff had just attained majority,the first defendant obtained a registered release deed Ex.A7 dated07.09.1957, by exercise of coercion and undue influence. She hadalso contented that the alienations on the basis of the allegedrelease deed made by the first defendant in favour of the defendants2 and 3 are not valid and binding on her. 26. On the question as to whether the release deed Ex.A7 isvitiated by misrepresentation, undue influence and coercion, thetrial Court expressed the view that the same is void and inoperativeas it has been brought about by the first defendant by exercisingundue influence on the plaintiff when she was under his chargewithout any independent advice.27. On the third question the trial Court held that the suit asframed is not barred by limitation as in its view neither Article 56nor Article 58 of the Limitation Act of 1963. On the appeal beforethis Court the Hon'ble Mr.JUSTICE RAMANUJAM has held that “I am,however, inclined to agree with the view taken by the lower appellateCourt that the suit is barred by limitation. The lower appellateCourt has taken the view that even if the document is vitiated byundue influence, still the said document is only voidable and notvoid ab initio and that, therefore, the plaintiff must have thedocument set aside within three years from the date of document.Section 19-A of the Contract Act says that when consent to anagreement is caused by undue influence, such an agreement is acontract voidable at the option of the party whose consent was socaused and such contract may be set aside either absolutely or uponsuch terms and conditions as the Court may deem just. If Ex.A7 isheld to be merely voidable it is necessary for the document to be setaside within a period of three years referred to in Article 59 of theLimitation Act, and a mere suit for declaration that the instrument https://hcservices.ecourts.gov.in/hcservices/ is void and ineffective will not lie (Vide AIR 1934 All 507, 511).In cases where the instruments are voidable at the instance of aparty, a suit to set aside or cancel the document must be filedwithin three years from the date of knowledge, that is, the date ofthe document (Vide Ramachandra v. Laxman, AIR 1945 PC 54 andSomeshwar Dutt v. Tribhawan Dutt, AIR 1934 PC 130).”28. In this connection, the learned counsel would submit thatthe first defendant had not taken any steps to set aside the saledeed, which is executed in favour of the appellant/plaintiff by theirfather. He has also added that since the first defendant had failedto initiate any legal action to set aside the sale within thestipulated period of three years as contemplated under Article 59 ofthe Limitation Act, it is not open for him at this stage that too inthe second appeal to contend that the sale deed is void ab initio.29. Further, the learned counsel has also contended that thesale deed, which was executed by the father of theappellant/plaintiff in his favour is only a voidable document and notvoid ab initio. In support of his arguments, he has also madereference to Article 109 of the Limitation Act. In this connection,he would submit that in a Hindu joint family, if the father happenedto alienate the ancestral property the alienation of the fathercould have been questioned within the stipulated period of 12 years.Having allowed to expire the prescribed period it cannot bequestioned in the later stage, as Article 109 of the Limitation Actoperates as bar. Article 109 of the Limitation Act contemplates thatby a Hindu governed by Mithakshara law to set aside his father'salienation of ancestral property the period of limitation is 12years. The period of limitation is reckoning from the date when thealienee takes possession of the property.30. In support of his arguments, he has placed reliance upon thedecision in Sudarshan Prasad v. Radha Kishun Ram, reported in AIR1982 Allahabad 218. In this case, it is held that in a suit to setaside sale deed of joint Hindu family on ground that it was withoutlegal necessity, plaintiffs pleaded that they first came to know ofsale deed when alienees objected their attempt to construct wall onsuit property, the lower Courts gave concurrent finding that thealienees were in possession of the property since the date of saledeed. Under this circumstance, it was held that in such a case, theArticle applicable is 109 and not 59 for purposes of limitation, andas the suit was filed after 12 years when alienee took possession ofproperty, it was barred by limitation.31. Referring to the proviso to Article 109 of the LimitationAct as well as the Article 59, the learned counsel has urged beforethis Court that the contention of the first respondent/firstdefendant has definitely been barred by limitation and hence the https://hcservices.ecourts.gov.in/hcservices/ finding of the first appellate Court that the mill and the landmeasuring eight cents, comprised in R.S.Nos.291/2 and 292/3 are alsoliable to be partitioned, shall have to be set aside.32. On the other hand, Mr.R.Subramanian, learned senior counselappearing for Mrs.S.Hemalatha, learned counsel who is on record forthe first respondent/first defendant has contented that though theappellant/plaintiff had contended that their father had executed thesale deed in respect of the rice mill and the land and that he hadbecome the owner of the said property, he had not chosen to produceany title deed. He has also argued that the appellant/plaintiff'sspecific admission is that the mill and the land was purchased bytheir father and in that case the mill and the land could have beenpurchased from the nucleus of the joint family properties and as suchthe property viz.mill and the land shall form part and parcel of thejoint family property and therefore liable to be partitioned.33. Admittedly, the appellant/plaintiff has not produced titledeed, which is said to have been executed in his favour by hisfather. However, the transfer of the mill and the land comprised inR.S.Nos.291/2 and 291/3 by the father in favour of theappellant/plaintiff has been admitted by the firstrespondent/defendant. He has raised this contention in his writtenstatement before the trial Court. When a specific fact has beenadmitted, it need not be proved through a documentary evidence. Evenin accordance with the contentions of the first respondent/firstdefendant, the document was obtained from their father by theappellant/plaintiff by undue influence, coercion or by playing fraud.Be it as it may. The documents can only be termed as voidable oneand if at all the first respondent/first defendant wanted to setaside the sale it should have been done within the stipulated periodof twelve years as contemplated under Article 109 of the LimitationAct. As the first respondent/first defendant being a Hindu governedby Mithakshara law, the alienation of their father in respect of theancestral property should have been set aside within the period oftwelve years from the date of passing of possession of the mill andthe land to the appellant/plaintiff.34. Having regard to the above facts, this Court is ofconsidered view that the Judgment of the first appellate Court dated23.01.2002 and made in A.S.No.15 of 2001 is liable to be set asideand the Judgment and decree of the trial Court dated dated 17.10.2001and made in O.S.No.232 of 2000, on the file of the learned AdditionalSubordinate Judge, Nagapattinam is liable to be confirmed.35. In the result, this Second Appeal is allowed and theJudgment and Decree dated 23.01.2002 and made in A.S.No.15 of 2001,on the file of the learned Additional District Judge, Nagapattinam isset aside and the Judgment and Decree dated 17.10.2001 and made in https://hcservices.ecourts.gov.in/hcservices/ O.S.No.232 of 2000, on the file of the learned Additional SubordinateJudge, Nagapattinam is confirmed. No costs. Sd/ Asst. Registrar/true copy/Sub Asst.RegistrarkrkTo:1.The Additional District Judge, Nagapattinam.2.The Additional Subordinate Judge, Nagapattinam. 3. The Section Officer, VR Section, High Court, Chennai1 cc To Mr.A.Muthukumar, Advocate, SR.24034 Order inS.A.No.763 of 2002GV (CO)RH (2.5.11)