Madras High Court
Karuppayee vs Pichai Udayar on 1 March, 2019
Author: R.Hemalatha
Bench: R.Hemalatha
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.03.2019
CORAM
THE HONOURABLE MRS.JUSTICE R.HEMALATHA
S.A.No.1428 of 1999
1.Karuppayee
2.Poornam
Palaniswamy (died)
(3rd appellant died, Memo USR No.4193
recorded vide order dated 18.12.2013)
4.Mohana
5.Minor Duraikannan
6.Minor Sivakarthi
(Minor Appellants 5 & 6
represented their mother 4th appellant)
(Appellants 4 to 6 brought as Lrs
of the deceased 3rd appellant
as per the order of court dated 29.09.2015
made in M.P.(MD).No.1 to 3 of 2014) ... Appellants
-Vs-
1.Pichai Udayar
2.Mookkayyee
3.Chinna Udayar ... Respondents
Prayer: Second Appeal filed under Section 100 of the code of Civil
Procedure, against the decree and judgment dated 07.04.1999 passed in
A.S.No.61 of 1998 by the learned Subordinate Judge, Trichy upholding the
decree and judgment dated 21.11.1997 passed in O.S.No.2416 of 1982 by
the District Munsif Court, Tiruchirapalli.
For Appellant : Mr.T.R.Rajaraman
For 1st Respondent : Mr.T.V.Sivakumar
For Respondents 2 and 3 : No appearance
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2
JUDGMENT
The appellants 1 to 3 are the plaintiffs in O.S.No.2416 of 1982, on the file of the Subordinate Judge, Tiruchirappalli. The plaintiffs filed the above suit for a declaration that the sale deed dated 18.02.1980 executed by the second defendant in favour of the first defendant is null and void and for delivery of vacant possession of the suit property to the plaintiffs and also for past and future mesne profits.
2.For the sake of convenience the parties are referred to as per their ranking in the original suit in O.S.No.2416 of 1982 and at appropriate places their ranks in the second appeal would also be indicated, if necessary.
3.The brief facts of the appeal are as follows:
The suit properties originally belonged to the late Karuppudayan and after his demise the suit properties devolved upon his children (plaintiffs) and his wife (second defendant). The first defendant got a sale deed dated 18.02.1980 (Ex.A1) in his favour was executed by the second defendant, by playing fraud upon her. The specific contention of the plaintiffs is that the plaintiffs were minors on the date of the sale deed Ex.A1 and that their mother(second defendant) without obtaining prior permission from a competent Court of law, executed the sale deed on her behalf and on behalf of the minor children. According to them http://www.judis.nic.in 3 there is no legal necessity to sell the suit properties in favour of the first defendant. Therefore, the plaintiffs have filed the suit for the reliefs stated above.
4.The first defendant in his written statement had contended that he purchased the suit properties from the second defendant on her behalf and on behalf of her minor children, for valuable consideration and later on found out that what was sold to him is a Government Poramboke land and according to him, the second defendant had suppressed this fact to him. It is also contended by him that since the second defendant's brother and the first plaintiff attempted to trespass into the suit property, he filed a suit in O.S.No.2194 of 1982 and obtained an order of ad-interim injunction in I.A.No.1234 of 1982 on 23.09.1982. It is further contended that the plaintiffs have filed the present suit only after receiving a suit notice in the suit in O.S.No.2194/1992.
5.The second defendant in her written statement had contended that the first defendant is related to her and that after the death of her husband in 1979, he was helping her. It is further contended by her that the suit property was in her possession and enjoyment after the death of the father of the plaintiffs and that since one Innasi, the adjacent land owner, attempted to encroach upon the suit property by shifting the boundary line, she sought the assistance of the first defendant, who http://www.judis.nic.in 4 advised her to execute a formal deed of lease. According to her, she executed a lease deed in his favour as requested by him and that she has not executed any sale deed dated 18.02.1980 as claimed by the first defendant. She had therefore contended that the sale deed dated 18.02.1980 is void. The plaintiffs filed reply statements and the first defendant also filed additional written statement reiterating their contentions.
6.The trial Court namely the District Munsif Court, Thiruchirapalli framed necessary issues and after full contest dismissed the suit filed by the plaintiffs.
7.Aggrieved over the decree and judgment dated 21.11.1977 passed by the learned District Munsif, Tiruchirapalli, the plaintiffs filed an appeal in A.S.No.61 of 1998 before the Subordinate Court, Trichy. The learned Subordinate Judge, Trichy after analysing the oral and documentary evidence adduced on both sides, dismissed the appeal filed by the plaintiffs and therefore, the present second appeal has been filed by the plaintiffs on the following substantial question of law.
“Whether the finding of the Courts below that the sale deed executed by the 2nd defendant in favour of the first defendant as natural guardian is valid when the property belongs to the minor plaintiffs at the time of sale?
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8.Mr.T.R.Rajaraman, learned counsel appearing for the appellants/plaintiffs would contend that after the death of the father of the plaintiffs the suit properties devolved upon the plaintiffs and the second defendant and that the second defendant sold the suit properties to the 1st defendant vide a sale deed dated 18.02.1998 (Ex.A1), without obtaining prior permission of the Court and without any legal necessity. The learned counsel also drew the attention of this Court to the provisions of Section 8 (2), 8(3) and 8(A) of Hindu Minority and Guardianship Act and contended that the sale deed (Ex.A1) is void and illegal. He also relied upon the decision of this Court in the case of Minor Palanivelu and two others versus Sadasiva Padayachi (died) and seven others reported in 2000(II) CTC 486 and contended that the principles relating to non-est factum is applicable to an illiterate woman and that the burden is on the persons who wants to establish validity of documents as per Section 101 and 103 of the Indian Evidence Act.
9.Per contra, the learned counsel appearing for the 1st respondent/first defendant contended that the first respondent purchased the suit property for valuable consideration and that the second defendant who initially remained absent and was set exparte in the suit, subsequently, entered appearance after 14 years and filed a written statement contending that she executed only a lease deed in favour of the first defendant and that the first defendant played a fraud upon her taking http://www.judis.nic.in 6 advantage of her illiteracy. He also drew the attention of this Court to the pre-suit notice dated 25.09.1982 (Ex.B2) issued by the second defendant to the first defendant wherein nothing is mentioned about the alleged fraud played upon by the first defendant. He also drew the attention of this Court to the reply statement filed by the plaintiffs wherein it is averred that the 2nd defendant executed a mortgage deed in favour of the first defendant and signed on the sale deed Ex.A1 without knowing the contents thereon. The learned counsel for the 1st respondent/ first defendant would therefore contend that plaintiffs and the second defendants were taking different stands and slowly attempted to improvise their case step by step. It is his contention that only the second defendant played fraud upon the first defendant by selling a Government Poramboke land to him.
10.A perusal of the notice Ex.B2, plaint, reply statement, written statement shows that the plaintiffs and the second defendant were attempting to improve their case step by step as rightly pointed out by the learned counsel appearing for the 1st respondent/first defendant. In fact the second defendant entered appearance after 14 years of filing of the suit and in her written statement had taken a stand that the first defendant was helping her in cultivating the lands during the life time of her husband and after the death of her husband since one Innasi, her neighbour attempted to trespass into the suit property, she sought the http://www.judis.nic.in 7 help of the first defendant, who advised her to execute a lease deed in his favour in order to prevent the said Innasi from trespassing into her property. She had further averred that she reposed faith on the first defendant and affixed her thump impression in a document and later on came to know that it was a sale deed. However, during the course of cross examination she had deposed that she executed only a mortgage deed in favour of the first defendant. She had also deposed that she does not know, who the first defendant is and this is totally contrary to her written statement wherein she has stated that the first defendant is closely related to her.
11.It is a settled position of law that a person of full age and understanding cannot be heard to say that she signed a document without knowing the contents thereon. If a person does not take the pain of knowing the contents of a document, he or she should face the consequence.
12.Furthermore, there is also a stand taken by the plaintiffs and the second defendant that the suit properties originally belonged to the father of the second defendant. In such circumstances, the plaintiffs cannot claim any right over the suit properties during the life time of the second defendant (their mother).
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13.The contention of the plaintiffs is that the first plaintiff was a major on the date of execution of Ex.A1 as evidenced by the birth certificate Ex.B7. Both the Courts below had analyzed Ex.B7 in the right perspective and in fact, the observations of the first Appellate Court is based on facts. Further more as already observed the second defendant had filed a written statement after a long delay of 14 years and the plaintiffs and the second defendant had taken inconsistent stand and the plaintiffs have not approached the Court with clean hands and both the courts below have analysed the oral and documentary evidence properly and therefore I do not see any reason to interfere with the findings regarding by both the courts below.
14.In the result the appeal fails and is therefore dismissed. No costs.
01.03.2019 Index :yes/No Internet:yes/No vsg http://www.judis.nic.in 9 To:
1.The District Munsif Court, Tiruchirapalli.
2.The Subordinate Judge, Trichy.
http://www.judis.nic.in 10 R.HEMALATHA, J.
vsg/am S.A.No.1428 of 1999 01.03.2019 http://www.judis.nic.in