Madras High Court
Meena vs The Chief Manager on 3 March, 2023
Author: G.K.Ilanthiraiyan
Bench: G.K.Ilanthiraiyan
S.A.No.988 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 24.02.2023
PRONOUNCED ON : 03.03.2023
CORAM:
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.988 of 2022
and C.M.P.No.21178 of 2022
Meena ... Appellant
Vs.
1. The Chief Manager,
Indian Bank,
Asset Recovery Management Branch,
No.55, Ethiraj Salai,
Egmore, Chennai – 600 008.
2. The Senior Branch Manager,
Indian Bank, Vadapalai Branch,
By its Senior Manager,
Inner Ring Road, Chennai,
Vadapalani,
Chennai – 600 026.
3. Ramasamy & Co.,
Rep. by its Partner Balasubramanian
No.59, Saidapet Road,
Vadapalani,
Chennai – 600 026.
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S.A.No.988 of 2022
4. S.Balasubramanian
5. S.Sundaresan
6. S.Chelladurai
7. Anandavalli
8. B.Ashok Kumar
9. B.Kamal
10. A.Suseela Kanwar
11. K.Hemalatha ... Respondents
Prayer :- Second Appeal filed under Section 100 of C.P.C., to set aside the
judgment and decree in A.S.No.19 of 2016 dated 13.07.2022 on the file of
the learned III Additional Judge, City Civil Court, Chennai, reversing the
decree and judgment in O.S.No.10802 of 2009 dated 15.04.2015 on the file
of the VI Assistant Judge, City Civil Court, Chennai.
For Appellant : Mr.S.Parthasarathy,
Senior Counsel
For Mr.M.Muthappan
For Respondents
For R1 & R2 : Mr.Jajesh B. Dolia
Senior Counsel
For M/s.Aiyar and Dolia
For R8 to R11 : Mr.V.Kuberan
For M/s.Rank Associates
For R3 to R7 : No appearance
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S.A.No.988 of 2022
JUDGMENT
This Second Appeal has been filed as against the judgment and decree dated 13.07.2022 passed by the learned III Additional Judge, City Civil Court, Chennai, in A.S.No.19 of 2016, reversing the judgment and decree dated 15.04.2015 passed by the learned VI Assistant Judge, City Civil Court, Chennai, in O.S.No.10802 of 2009, thereby decreed the suit.
2. The appellant is the first plaintiff and the respondents are the defendants. For the sake of convenience, the parties are referred to as per their ranking in the trial Court.
3. The case of the plaintiffs in brief is that the first plaintiff is the daughter and the deceased second plaintiff is the mother of one Ramaswamy, who is elder brother of the defendants 2 to 4. The said Ramaswamy and his younger brother viz., the second defendant jointly purchased an immovable property bearing Plot No.5, Verghese Avenue, Ashok Nagar, Chennai – 600 083, by the registered sale deed vide document No.1174 of 1978. They were in joint possession and enjoyment of Page 3 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 the suit property. While being so, the said Ramaswamy died intestate leaving behind his wife the fifth defendant herein and his daughter viz., the first plaintiff then a minor and his mother the second plaintiff as his legal heirs who succeeded jointly the 50% of undivided share of the suit property. The said Ramaswamy was predeceased to his father viz., Shanmugathevar and subsequently on 04.01.2002 the said Shanmugathevar also died intestate.
3.1. After demise of the father of the first plaintiff, there was dispute among the family members as such the fifth defendant was coerced and compelled to execute the release deed dated 29.01.1983 registered vide document No.6 of 1983 in respect of the suit schedule property. It was executed by the fifth defendant on her behalf and also on behalf of her minor first plaintiff, in favour of the defendants 2 to 4 herein. However, all are in joint possession and enjoyment of the suit schedule properties. The said release deed executed without any prior Court permission on behalf of the first minor plaintiff by the fifth defendant. Therefore, it is void and non- est in the eye of law.
Page 4 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 3.2. While being so, the defendants 6 & 7, by the paper publication dated 28.08.2009, published as if the entire property is mortgaged with them created by the second defendant for the alleged due payable in the account of the first defendant/company. Thereafter, the plaintiffs came to know that the suit property is scheduled to be sold in public auction on 29.09.2009. The suit property, taking advantage of the release deed, the second defendant has created mortgage deed with the seventh defendant in which, neither the plaintiffs nor the fifth defendants were parties to the alleged mortgage or the loan transactions made between the second defendant and the seventh defendant.
3.3. The possession notice under Section 13(4) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (herein after referred to as “SARFAESI Act”), or sale notice was not served to the plaintiffs or to the fifth defendant. Only after seeing the paper publication dated 28.08.2009, they came to know the above facts. Therefore, the plaintiffs caused notice to the defendants on 01.09.2009. Hence the suit for declaration declaring that the general release Page 5 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 deed dated 29.01.1983 as not enforceable and null and void and also consequential injunction along with declaration prayer declaring that the mortgage deed created by the second defendant with the seventh respondent is null and void. While pending the suit, the suit property was sold out without knowledge and consent of the plaintiffs in favour of the respondents 8 to 11 herein.
4. The defendants 1 to 5 were remaining exparte. The defendants 6 & 7, resisted the suit and filed written statement stating that the suit itself is barred by limitation. The first plaintiff attained majority in the year 1996 itself and as such she should have filed suit challenging release deed dated 29.01.1983 within a period of three years on her attaining majority. The first plaintiff having slept over her rights for over 13 years, she cannot seek to enforce a time barred right by way of the present suit. The suit itself collusive one and the plaintiffs have been set up by the defendants 1 to 5, to defeat the claim of the defendants 6 & 7, who had advanced money on the security of the suit property.
Page 6 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 4.1. After issuance of notice under Section 13(2) of the SARFAESI Act and making demand for the payment of amount due from the defendants 1 to 5, they had set up the plaintiffs and filed the present suit. At the time of execution of release deed, the first plaintiff and the fifth defendant were compensated at Rs.1,00,000/- in the year 1983 itself. A sum of Rs.50,000/- was deposited in the name of the first plaintiff and the remaining amount of Rs.50,000/- was received by the fifth defendant by cash. The present suit is a collusive suit is amply borne out by the two SARFAESI applications filed by the plaintiffs as well as the defendants 2 to 5 and their rejection by the Debt Recovery Tribunal II, Chennai on 24.09.2009. In fact, the plaintiffs filed S.A.No.97 of 2009 to set aside the sale notice dated 25.08.2009 on the ground that they have not got any share in the suit property. The plaintiffs also filed Writ Petition before this Court in W.P.No.19878 of 2009 which was dismissed on 01.01.2009. Only thereafter, the present suit has been laid in order to escape from the clutches of SARFAESI proceedings.
5. On the basis of the avernment made in the plaint and the written statement, the trial Court framed the following issues:- Page 7 of 34
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(i) Whether the plaintiffs are entitled for declaration to declare the general release deed dated 29.01.1983 is null and void?
(ii) Whether the plaintiffs are entitled for permanent injunction as prayed for?
(iii) Whether the plaintiffs are entitled to get declaration to declare the mortgage deed executed by the second defendant in favour of the seventh defendant is invalid and not binding the plaintiffs?
(iv) What ells reliefs the parties are entitled to?”
6. On the side of the plaintiffs, they had examined P.W.1 and marked Ex.A.1 to Ex.A.26. On the side of the defendants, they had examined D.W.1 and also marked documents in Ex.B.1 to Ex.B.7. On a perusal of oral and documentary evidences, the trial Court decreed the suit as prayed for. Aggrieved by the same, the defendants 6 & 7 filed appeal suit and the same was allowed and also set aside the judgment and decree passed by the trial Court, thereby dismissing the suit. Hence, the plaintiffs filed this present Second Appeal.
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7. While admitting the Second Appeal, this Court framed the following substantial question of law. :-
“a) Whether the release deed dated 29.01.1983 could be questioned in the year 2009 after if had been acted upon namely, after the property had been mortgaged by the releasees in favour of the Indian Bank?
b) Whether the release deed is a void document or a voidable document and in this connection whether the ratio laid down in Muppudathi Pillai Vs. Krishnaswami Pillai and ors reported in AIR 1960 Mad(1) had been correctly applied?
c) Whether the suit itself is maintainable in the teeth of the mortgage created over the said property an in the teeth of proceedings before the Debt Recovery Tribunal for recovery of mortgage amount?
d) Whether the proceedings before the Trial Court is vitiated by act of fraud as alleged by the auction purchasers in not issuing suit summons to the auction purchasers prior to obtaining the decree?
e) Whether the release deed dated 29.01.1983, is a void document in the absence of proper and correct description of the property which was released, as required under Section 21 of the Registration Act, 1908?” Page 9 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022
8. Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellant submitted that the alleged release deed which was marked as Ex.A.2 got registered at Pattukotai Registrar Office. No schedule of property mentioned in the release deed, so as to register the sale deed at Pattukottai Registrar Office. Further the description was also not proper and no specific door number, survey number in respect of the suit schedule property has been mentioned. Therefore, it is void document and nothing to be challenged in order to declare as void one, since the provision under Section 21 of the Registration Act is not complied with.
8.1. He further submitted that Section 21 of the Registration Act provides that a document shall not be accepted for registration unless the description of the immovable property intended to be dealt with is sufficient to identify and when the rule issued under Section 22(1) r/w Section 22(2) provided that failure to comply with the provisions of the rule shall disentitle a document to be registered. When a statute prohibits the acceptance for registration unless the requirements of the statute are complied with that prohibition is a prohibition against acceptance for Page 10 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 registration is made emphatic by the rule issued under Section 22(1) r/w Section 22(2) of the Registration Act.
8.2. He also submitted that though the suit was filed in the year 2009, it is not barred by limitation. The suit is not filed for declaration to declare that the release deed dated 29.01.1983 is void one. It doesn't require any challenge since, it got registered without jurisdiction and the description of the property was not mentioned in the release deed. Therefore, it is non- est in the eye of law and it is void document. Therefore, Article 60 of the Limitation Act is not applicable and only Article 65 of the Limitation Act applies and the suit is very much filed in time and no bar by any law and limitation. Therefore, the trial Court rightly decreed the suit. Unfortunately, the first appellate Court mechanically allowed the appeal suit and dismissed the suit. In support of his contention, he relied upon the following judgments:-
(i) MANU/KE/0237/1981 – T.Sankaranarayanan Nair Vs. Achuthan Nair & ors.
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(ii) 1914 Air (PC) 67 – Harendra Lal Roy Chowdhuri Vs. Haridasi Debi and ors
(iii) 2022 LiveLaw(SC) 941 – Bank of Rajasthan Ltd., Vs. VCK Shares & Stock Broking Services Ltd.
(iv) AIR 1938 NAGPUR 550 – Seth Suganmal & ors Vs. Mt. Umraobai & ors.
Hence, he prayed to allow the Second Appeal and decreed the suit prayed for.
9. Per contra, Mr.Jayesh B. Dolia, learned Senior Counsel appearing for the respondents 1 & 2 submitted that the suit itself is barred by limitation. The first plaintiff should have attained majority in or about in the year 1996 itself and as such she ought to have taken legal action within a period of three years on her attaining majority. The present suit is filed only in the year 2009, after the period of 13 years from the date of attainment of her majority. The deceased second plaintiff being the mother of deceased Ramaswamy, joint owner along with the second defendant, her right to claim a share in respect of the half share of the deceased Ramaswamy, arose immediately on the death of the said Ramaswamy viz., Page 12 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 on 16.10.1980. Therefore, she lost her claim by efflux of time for claiming her right in respect of half share of the deceased Ramaswamy.
9.1. He further submitted that the suit itself collusive one and the plaintiffs herein were set up by the defendants 1 to 5 to defeat the claim of the respondent bank. The fifth defendant on her behalf and on behalf of the first plaintiff had executed release deed on 29.01.1983 in favour of the defendants 2 to 4 and the deceased Ramaswamy. It was never challenged till the year 2009. In fact, the release deed is not confined to the suit property but relates to the entire share of the deceased Ramaswamy. The said release deed was executed for valid consideration of Rs.1,00,000/-in the year 1983.
9.2. He also submitted that the first plaintiff during her cross examination on 22.07.2013 categorically admitted that no documents have been filed to show that she and others are in joint possession of the suit property. She also admitted that she believed that her share will be given to her and as such she was keeping quiet without taking any legal action challenging the release deed. Therefore, she had knowledge about the Page 13 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 execution of release deed dated 29.01.1983. Hence, the suit is hopelessly barred by limitation and she is trying to defeat the legal rights of the bank, thereby depriving it from recovering the amounts due under the loan account. In fact, the suit property was also sold out and the account of the borrower is credited with sale consideration. In support of his contention, he relied upon the following judgments:-
(i) (1991) 592 MLJ 1 - Venkatesa Mudaliar & ors Vs. N.Krishnaswamy Mudaliar Trust
(ii) Malatilata Mishra & anr Vs. Keshab chandra Mohapatra - Dated 22.09.2017 in R.S.A.No.78 of 2015 – Orrisa High Court; Cuttack
(iii) Murugan & anr Vs. Kesava Gounder – Civil Appeal No.1782 of 2019 – Dated 25.02.2019
(iv) Dahiben Vs. Arvindbhai Kalyanji Bhanusali – Civil Appeal No.9519 of 2019 – Dated 09.07.2020.
Hence, he prayed for dismissal of the present Second Appeal.
10. Mr.V.Kuberan, learned counsel appearing for the respondents 8 to 11 submitted that the suit itself collusive one, since the plaintiffs and the defendants 1 to 5 are same family members. In order to escape from the clutches of the proceedings under the SARFAESI Act, the defendants 1 to 5 Page 14 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 set up the plaintiffs and filed the present suit. The suit itself highly barred by limitation since, the first plaintiff challenged the release deed executed by the fifth defendant and it has to be filed within a period of three years from the date of attaining her majority. In the year 1996 itself, the plaintiff attained her majority and failed to file suit within a period of three years to challenge the release deed executed in favour of the defendants 1 – 5.
10.1. The application under the SARFAESI proceeding was allowed and in the year 2009, the defendants 8 to 11 were purchased the suit properties. The suit itself is not maintainable as contemplated under Section 34 of the SARFAESI Act. Therefore, no civil Court has got jurisdiction to try the suit, when the suit property is facing the proceedings under the SARFAESI Act. The plaintiffs are not in possession and enjoyment of the suit property and even then they filed petition for injunction.
10.2. He further submitted that Section 34 of the SARFAESI Act says that the jurisdiction of the civil Court is barred in respect of matters which a Debts Recovery Tribunal or an Appellate Tribunal is empowered to Page 15 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 determine in respect of any action taken or to be taken in pursuance of any power conferred under this Act. Therefore, any matter in respect of which an action may be taken even later on, the civil Court shall have no jurisdiction to entertain any proceedings thereof.
10.3. He also submitted that only to recover the due, the bank filed application in O.A.No.174 of 2007 for recovery of Rs.25,45,390.20 with future interest at contracted rate and it was decreed on 07.08.2009 on the file of the Debts Recovery Tribunal – II, Chennai. Accordingly, the suit property was sold out in an auction sale on 29.09.2009 to the respondents 8 to 11 herein for the total sale consideration of Rs.2,32,10,000/- in which a sum of Rs.1,07,99,131/- has been appropriated towards full satisfaction of dues. The balance amount is kept in the sundries amount and it has to be handed over to the borrowers. To that extent full satisfaction memo filed by the bank before the Debt Recovery Tribunal-II, Chennai.
10.4. He further submitted that the suit itself barred by limitation since it was not filed within a period of threes from the date of attainment of Page 16 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 majority. The plaintiffs ought to have filed suit in the year 1999 itself, since she attained majority in the year 1996. Therefore, Article 65 of the Limitation Act is not applicable and the limitation would apply only under Article 60 of the Limitation Act. In support of his contention, he relied upon the following judgments :-
(i) 2014 (1) SCC 479 – Jagdish Singh Vs. Heeralal & ors.
(ii) 2016 (6) SCC 725 – Narayan Vs. Babasheb & ors Therefore, the first appellate Court rightly dismissed the suit and prayed for dismissal of the present Second Appeal.
11. Heard Mr.S.Parthasarathy, learned Senior Counsel appearing for the appellant and Mr.Jayesh B. Dolia, learned Senior Counsel appearing for the respondents 1 & 2 and Mr.V.Kuberan, learned counsel appearing for the respondents 8 to 11.
12. The first plaintiff is the daughter of one Ramaswamy and the second plaintiff is the mother of the said Ramaswamy. The fifth defendant is the wife of the said Ramaswamy. The defendants 2 to 4 and the said Page 17 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 Ramaswamy are the sons of one Shanmugadevar. The defendants 2 to 4 and their brother viz., Ramaswamy and father had joint family properties. In respect of the suit property is concerned, it was purchased by the said Ramaswamy and the second defendant alone. Therefore, both were having 50% undivided share in respect of the suit schedule property. The said Ramaswamy died on 16.10.1980, leaving behind the plaintiffs and the fifth defendant as his legal heirs. Therefore, the first plaintiff and the fifth defendant are entitled to have succeeded their undivided 50% of the suit schedule property.
13. It is also seen that the said Shanmugadevar had established a company in the name and style of M/s.Ramaswamy & Co. i.e., the first defendant, and they were doing coconut business. One of the joint family properties was mortgaged with the seventh defendant viz., Indian Bank, Vadapalani Branch to borrow loan. Thereafter, they had defaulted in repayment of loan and therefore, the seventh defendant had initiated SARFAESI proceedings through sixth defendant. They issued paper publication to bring the suit property for public sale. Page 18 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022
14. On a perusal of release deed which was marked as Ex.A.2, it was executed by the fifth defendant on her behalf and on behalf of her minor daughter viz., first plaintiff in favour of the defendants 2 to 4, thereby releasing their 50% of right over the suit schedule property. On a perusal of Ex.A.2, it did not contain any particulars of the property which was released by the fifth defendant. It was registered at the office of the Sub Registrar, Pattukottai. The recitals of the release deed in respect of the property are concerned as follows :-
“1 egu; c&z;Kf njth; ghf tPjk;
!;jhtu$';fk; brhj;Jf;fs; aht[k; kw;Wk;
bghJf;FLk;gj;Jf;Fr; brhe;jkhf nj';fha;
tpahghuk; kjuh!; nfhlk;ghf;fk; tlgHdpapy;
S.uhkrhkp mz; nfh vd;w bgaupy; elj;jg;gl;L
tUfpw nj';fha; tpahghuk; nkw;go tlgHdpapy;
th;fP!; fhydpapy; cs;s tPL Mfpaitfs; ,Ue;J
tUfpd;wd////////////////////////////////////////////////////////// ///////////////////////////////////////////// vdf;fht[k; vd;
ikdUf;fhft[k; bgw;Wf; bfhz;oUf;fpw ifapy;
nkw;go U:/1.00.000-? xU yl;rk; U:gha[k; ehd;
jdf;fhft[k; vd; ikdUf;fht[k; j';fs;
tifawhtplkpUe;J bgw;Wf; bfhz;l tifapy;
vd;gj;jhfptpl;lgoahy; vd; fzth; ,we;j
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S.A.No.988 of 2022
uhkrhkpj; njthpd; ghf tpj rk;ge;jkhap 1 egh;
c&z;Kfj; njth; tifawh bghJf; FLk;gr;
brhj;Jf;fshfpa !;jhth$';fk nyth njtpfs;.
nj';fha; tpahghuk; tlgHdp FoapUg;g[ fPH; epy
cs;gl cs;sitfspYk; ,d;Dk; ,jpy; VjhtJ
vGj tpl;Lg; nghapUe;jhYk; mitfspYk; cs;s
ghj;aijfisa[k; 1 egh; c&z;Kfj; njth;
tifawhthfpa jh';fs; ehy;tUk; KG
chpikfSld; mDgtpj;Jf; bfhs;Sk;goa[k; ehsJ
njjpKjy; nkw;fz;l ahtw;W brhj;J
tifawhf;fspYk; nyth njtpfspYk; vdf;Fk;
vdJ ikdu; kfs; kPdhl;rf;Fk; vt;tpj ghj;aKk;.
ChpikfSk; mDgt';fSk; ,y;iybad;gij
cWjpaha;r; brhy;ypa[k; ,e;j tpLjiyg; gj;jpuk;
Kyk; c&z;Kfj; njtu;. Re;jnur njtu;.
ghyRg;ukzpa njtu;. bry;yJiu njtu; Mfpa
c';fs; ehy;tUf;Fk; vdf;Fk; vd; ikdh; kfs;
kPdhl;rpf;Fk; ve;j tpj bjhlu;g[ ,y;iybad;W
cWjp Twp ehd; jdf;fhft[k; jd; kfs; ikdu;
kPdhl;rpf;Ff; fhu;oad; KiwapYkhf ,e;j
tpLjiyg; gj;jpuk; vGjpf; bfhLj;J nkYk;
tpahghuk;. Onul; khu;f; cupik tfiawhita[k;
khw;wk; bra;J bfhLj;Jtpl;nld;/@
Thus it is clear that, it is a general release deed without mentioning any property description, as required under Sections 21 & 22 of the Registration Page 20 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 Act, since release deed requires compulsory registration as contemplated under Section 17 of the Registration Act.
15. The learned Senior Counsel appearing for the appellant/ plaintiffs mainly rely upon the judgment of the Hon'ble Division Bench of the High Court of Kerala reported in MANU/KE/0237/1981 in the case of T.Sankaranarayanan Nair Vs. Achuthan Nair & ors, which held that the Registration Act requires that a non-testamentary instrument which operate to extinguish any right, title or interest of the value of one hundred rupees and upwards to or in immovable property should be registered. Section 21(1) of the Registration Act says that no non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. Sub- Sections 2 to 4 of Section 21 of the Registration Act provide for the nature of the description and the terrritorial division in which they are situate. Further held that Section 21 of the Registration Act provides that a document shall not be accepted for registration unless the description of the immovable property intended to be dealt with is sufficient to identify it and Page 21 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 when the rule issued under Section 22(1) r/w Section 22(2) provides that failure to comply with the provisions of the rule shall disentitle a document to be registered.
16. These two provisions disentitle a document to be registered if the requirement of the statute is not satisfied. The statute disqualifies a document and bars its acceptance for registration. The distinction between a defect in the procedure of the registrar and lack of jurisdiction is fundamental goes to the root of the matter and this cannot be curred by resort to Section 87 of the Registration Act. Further held that three instances viz., where a document presented for registration by a person not entitled to it or where the registrar had lack of territorial jurisdiction or where the said document is presented out of time, go to the jurisdiction and non- compliance of Section 21, 22 and the Rules framed under Section 21(1) will make the registration one without jurisdiction. Page 22 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022
17. In this regard it is relevant to extract the provisions under Sections 21 & 22 of the Registration Act as follows :-
“21. Description of property and maps or plans.— (1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same.
(2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered.
(3) Other houses and lands shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on to which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey.
(4) No non-testamentary document containing a map or plan of any property comprised therein shall be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies Page 23 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 of the map or plan as are equal to the number of such districts.
22. Description of houses and land by reference to Government maps or surveys.— (1) Where it is, in the opinion of the 1 [State Government], practicable to describe houses, not being houses in towns, and lands by reference to a Government map or survey, the 1 [State Government] may, by rule made under this Act, require that such houses and lands as aforesaid shall, for the purposes of section 21, be so described.
(2) Save as otherwise provided by any rule made under sub-section (1), failure to comply with the provisions of section 21, sub-section (2) or sub-section (3), shall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property. ” On a perusal of Ex.A.2, there is no compliance of Section 21 and 22(2) of the Registration Act. As extracted above, there was no recital in respect of the description of the property.
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18. That apart, it was registered at the registration office of the Sub Registrar, Pattukottai. When there was no recital about the description of property, the Sub Registrar, Pattukottai, had no jurisdiction to register the same, since no property mentioned in the release deed as the property situated at Pattukottai. Except the parties are residing within the jurisdiction of Sub Registrar, Puttukottai, no property is situated at Pattukottai. Admittedly, the fifth defendant had executed the said release deed on her behalf and on behalf of her minor daughter viz., the first plaintiff, without obtaining any prior permission from the Court. The execution of release deed on the minor property is against the provisions of Hindu Minority and Guardianship Act, 1956.
19. Admittedly, the suit property was purchased by the deceased Ramaswamy and the second defendant alone. Therefore, other defendants had no right or title over the said property. Though the said release deed was executed for consideration of Rs.1,00,000/-, whether it is sufficient or not has been seen, based on the valuation of the property. As per the release deed, the fifth defendant has released her right and the right of the first Page 25 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 plaintiff in respect of the entire joint family properties. Therefore, the payment of Rs.1,00,000/-, considering the release of entire joint family properties, was insufficient. Therefore, the release deed is not supported by valid consideration and the Ex.A.2 is a void document and non-est in the eye of law.
20. The Hon'ble Division Bench of Nagpur in the judgment reported in AIR 1938 NAGPUR 550 in the case of Seth Suganmal & ors Vs. Mt.Umraobi and ors, held that where therefore by a mistake on the part of everybody concerned, including the Sub Registrar, a document is registered at a place, although no portion of the property is situated within the jurisdiction of the Sub-Registrar there, the defect being a defect of jurisdiction, it is not curable under Section 87 of the Registration Act and registration of the document is wholly invalid and the document is inoperative to effect the transfer, although there is no misdescription, fraud or attempt to mislead.
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21. The learned counsel appearing for the respondents vehemently contended that the suit itself barred by limitation, since the first plaintiff ought to have filed the suit within a period of three years from the date of attainment of her majority. Further contended that the plaintiffs did not challenge the document in Ex.A.2 viz., release deed and the suit itself is not maintainable. In this regard, the trial Court by relying the judgment reported in 2008 (4) page 392 observed as follows :-
“Hindu Minority and Guardianship Act, 1956 (32 of 1956) Section 6 – Transfer of property of minot by person other than natural guardian effect of void and not voidable. A guardian for person of minor is different from guardian of property of minor. Alienation by mother of minor's interest in undivided joint family property is void. After death of father/Kartha, eldest male member in co-parcenery/joint family would be the deemed Kartha of joint family and property. Minor on attaining majority can ignore document and no necessity for prayer for cancellation of a void document preceding prayer for partition.
Law of limitation – Minor seeking partition – no prayer of setting aside document alienating minor's interest by mother – suit not filed immediately after minor attaining Page 27 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 majority in 1973 – only in 1989 suit for partition filed – suit property in joint cultivation of all and minor was also getting benefit – no plea of ouster – possession by one co-sharer is deemed to be possession by other co-sharers – suit not barred by limitation.
The relevant portion of the judgment is extracted and in view of the above judgment, the fifth defendant cannot dispose the property of a minor and on attaining majority the minor can ignore the document since, the document is void. Therefore, in view of the above position of law Ex.A.2 document will not bind the first plaintiff.” Thus it is clear that the void document can be ignored, since Ex.A.2 is a void document and non-est in the eye of law. Therefore, the first plaintiff need not to file suit either to set aside the document in Ex.A.2 viz., release deed or file a suit to challenge the same.
22. Though the Limitation Act would apply and the limitation is three years from the cause of action, in the present case, the cause of action to file a suit is from the date of paper publication and therefore, within a period of three years the suit has been filed. Admittedly, the defendants 2 to Page 28 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 5 and first plaintiff are in joint possession of the suit property. Therefore, the suit is not barred by limitation. Hence, the release deed executed by the fifth defendant is not binding on the first plaintiff. In pursuant to the release deed, mortgage deed has been created by the second defendant in favour of the defendants 6 &7 and they are bringing 50% undivided share of the plaintiffs and the fifth defendant and it is not binding on them since, the release deed which was marked as Ex.A.2 is declared as null and void.
23. Insofar as the maintainability of the suit is concerned, the suit was not filed to challenge any proceedings initiated under the SARFAESI Act. The suit was not filed to stall the proceedings under the SARFAESI Act. Instead of, it was filed to declare the right of the plaintiffs over the suit property which was mortgaged in favour of the defendants 6 & 7. Therefore, the civil Court has got jurisdiction to try the suit filed by the plaintiffs and the civil Court is barred by only in respect of the matter which involved the proceedings under the SARFAESI Act.
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24. The learned counsel appearing for the respondents also relied upon the judgement reported in 2014 (1) SCC 479 in the case of Jagdish Singh Vs. Heeralal and ors, in which the Hon'ble Supreme Court of India held that a full reading of Section 34 of the SARFAESI Act shows that jurisdiction of the civil Court is barred in respect of the matter which a Debts Recovery Tribunal or an Appellate Tribunal is empowered to determine in respect of any action taken or to be taken in pursuance of any power conferred under this Act. Whereas in the case on hand, the plaintiffs filed suit for the following reliefs :-
“a) To declare the General Release deed dated 29.01.1983 as document No.6 of 1983 as not enforceable and null and void.
b) to restrain the defendants their men or agents by permanent injunction from in any way interfering with the peaceful possession and enjoyment of the plaintiffs in respect of the suit property.
c) To declare the mortgage created by the second defendant with the seven defendant in respect of the suit property and any action of the sixth defendant consequent or on the basis of the said mortgage such as possession or sale of suit property as null and void.
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d) to pay the costs.
e) to pass any other or further orders as this Hon'ble Court may deem fit and proper in the circumstances of the case and thus render justice.” These reliefs are not the matter relating to the SARFAESI proceedings initiated by the defendants 6 & 7 herein. The above reliefs cannot be determined by the Debts Recovery Tribunal and the above reliefs are not fall under sub Section (4) of Section 13 of the SARFAESI Act. Validity or genuineness or binding nature of the document, which was marked as Ex.A.2 viz., release deed, has to be gone through only by the Civil Court. Therefore, the above judgments citied by the learned counsel appearing for the respondents are not applicable to the case on hand.
25. That apart, the first appellate Court unfortunately dismissed the suit on the ground of limitation. Further held that while pending suit, though the plaintiffs filed petition to impleade the respondents 8 to 11 and the same was allowed, thereafter they failed to carry out the amendment in the plaint, as such the trial Court ought not to have decreed the suit. However, the issues framed by the trial Court were dealt with in proper manner and the Page 31 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 suit was rightly decreed. Therefore, the first appellate Court ought not to have interfered with the judgment passed by the trial Court.
26. In view of the above discussions, all the substantial question of law involved in this Second Appeal are answered in favour of the plaintiffs. Accordingly, the judgment and decree dated 13.07.2022 passed by the learned III Additional Judge, City Civil Court, Chennai, in A.S.No.19 of 2016, is hereby set aside and the judgment and decree dated 15.04.2015 passed by the learned VI Assistant Judge, City Civil Court, Chennai, in O.S.No.10802 of 2009, is hereby confirmed and the suit is decreed as prayed for.
27. As per the memo filed by the first respondent, the respondents 8 to 11 had deposited a sum of Rs.2,32,10,000/- and after recovering the due amount the balance amount of Rs.1,24,10,869/- is lying in the loan account. In view of the above judgment, the respondents 1 & 2 are directed to return the entire sale consideration to the respondents 8 to 11 herein. However, the respondents 1 & 2 are at liberty to proceed as against other Page 32 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 properties belonged to the respondent 3 to 6 herein, in accordance with law, in order to realize the due.
28. With the above directions, the Second Appeal stands allowed. Consequently, connected miscellaneous petition is closed. There shall be no order as to costs.
03.03.2023 Internet : Yes Index : Yes/No Speaking order/Non-speaking order rts To
1. The III Additional Judge, City Civil Court, Chennai.
2. The VI Assistant Judge, City Civil Court, Chennai.
Page 33 of 34 https://www.mhc.tn.gov.in/judis S.A.No.988 of 2022 G.K.ILANTHIRAIYAN, J.
rts
3. The Chief Manager, Indian Bank, Asset Recovery Management Branch, No.55, Ethiraj Salai, Egmore, Chennai – 600 008.
4. The Senior Branch Manager, Indian Bank, Vadapalai Branch, Inner Ring Road, Chennai, Vadapalani, Chennai – 600 026.
Judgment in S.A.No.988 of 2022 and C.M.P.No.21178 of 2022 03.03.2023 Page 34 of 34 https://www.mhc.tn.gov.in/judis