Madras High Court
B. Devi vs A. Mumtaj Begam on 24 June, 2025
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S. No.429 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 24.06.2025
CORAM :
THE HON'BLE Mr. JUSTICE SATHI KUMAR SUKUMARA KURUP
A.S.No.429 of 2024
and
C.M.P.No.16348 of 2024
B. Devi ... Appellant
Versus
1. A. Mumtaj Begam
2. Paritha Begam
3. Mohammed Yazar
4. Powjia Begam
5. Paimitha ... Respondents
Prayer: This Appeal is filed under Section 96 and Order XLI, Rule 1 of CPC.,
against the order dated 03.01.2024 passed in I.A.No.437 of 2022 in O.S.No.
306 of 2022 on the file of the III Additional District Judge, Kallakurichi.
For Appellant : Mr. R. Chandra Sudan
For Respondents : Mr. A. Thiyagarajan, Senior Counsel
for M/s. A. Vinupradha for R1 to R5
JUDGMENT
This Appeal Suit is filed against the order dated 03.01.2024 passed in I.A.No.437 of 2022 in O.S.No.306 of 2022 on the file of the III Additional District Judge, Kallakurichi.
1/22https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024
2. The learned Counsel for the Appellant Thiru. R.Chandra Sudan submitted his arguments. As per the submissions of the learned Counsel for the Appellant, the Plaintiff in O.S.No.306 of 2022 on the file of the learned III Additional District Judge, Villupuram at Kallakurichi is the Appellant before this Court. The Appellant as Plaintiff had preferred the suit in O.S.No.306 of 2022 on the file of the Third Additional District Judge, Villupuram at Kallakurichi, seeking relief of recovery of money based on a mortgage executed by the son of first Defendant, husband of the second Defendant and father of the Defendants 3 to 5 in favour of the Plaintiff in O.S.No.306 of 2022.
3. The Defendants had filed a petition in I.A.No.437 of 2022 in O.S.No.306 of 2022 under Order VII Rule 11 of C.P.C., seeking to reject the Plaint in O.S.No.306 of 2022.
4. The Plaintiff as Respondent in petition in I.A.No.437 of 2022 filed counter resisting the same. After due enquiry, the learned III Additional District Judge, Villupuram at Kallakurichi by judgment dated 03.01.2024, rejected the Plaint in O.S.No.306 of 2022 under Order VII Rule 11 of C.P.C. 2/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024
5. Aggrieved by the judgment and decree of the learned III Additional District Judge, Villupuram at Kallakurichi, rejecting the Plaint under Order VII Rule 11 of C.P.C, the Appeal had been preferred by the Plaintiff in O.S.No.306 of 2022.
6. It is the submission of the learned Counsel for the Appellant that the judgment of the learned III Additional District Judge, Villupuram at Kallakurichi, in I.A.No.437 of 2022 in O.S.No.306 of 2022 dated 03.01.2024 is not based on the averments in the Plaint , but on the contents in the Affidavit filed by the Defendants in I.A.No.437 of 2022 and the documents filed by the Defendants as Petitioners in I.A.No.437 of 2022 which were marked on the side of the Petitioner in I.A.No.437 of 2022 as Ex.P1 to P6 which are against the principles under Order VII Rule 11 of C.P.C. To reject the Plaint under Order VII Rule 11 C.P.C, only the averments in the Plaint alone are considered and nothing else. Here, the learned III Additional District Judge, Villupuram at Kallakurichi, had rejected the Plaint not on the averments in the Plaint , but on the contents of the affidavit in the petition under Order VII, Rule 11 in I.A.No.437 of 2022 and the documents under Ex.P-1 to P-6 which were marked in I.A.No.437 of 2022 in O.S.No.306 of 2022. 3/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024
7. The learned Counsel for the Appellant invited the attention of this Court to the order passed by the learned Third Additional District Judge, Villupuram at Kallakurichi in I.A.No.437 of 2022. In support of his contention, the learned Counsel for the Appellant also invited the attention of this Court to the document marked as Ex.P-6 which is the proceedings of the Registrar, Registration Department. Cancelling the mortgage deed executed on 23.06.2014 by proceedings of the Registrar dated 05.09.2022 by exercising the power under the Registration Act which is against the reported ruling of the Division Bench of this Hon'ble High Court. As per this ruling of the Division Bench, either the Sub-Registrar or the District Registrar of the Registration Department does not have the discretion to decide the questions regarding the documents deciding the rights of the parties to the documents which is strictly a subject to be decided by the Civil Court based on appreciation of evidence. Therefore, the learned III Additional District Judge, Villupuram at Kallakurichi placing reliance on the proceedings of the Registrar, Registration Department dated 05.09.2022 cancelling the mortgage deed executed by the son of the first Defendant and the father of the Defendants 3 to 5 in O.S.No.306 of 2022 in favour of the Plaintiff as nullity. Also, it is the submission of the learned Counsel for the Appellant that the proceedings of 4/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 the Registrar, Registration Department dated 05.09.2022 is subsequent to the filing of the suit. Therefore, the subsequent development cannot be relied by the learned Judge to reject the Plaint. What are the points raised by the Defendants in O.S.No.306 of 2022 are subject to appreciation of evidence which cannot be considered to reject the Plaint .
8. The learned Judge ought to have rejected the Plaint only on the averment in the Plaint and not on subsequent developments and relying on documents which are subsequent to filing of the suit. Therefore, it is the contention of the learned Counsel for the Appellant that the Order passed in I.A.No.437 of 2022 in O.S.No.306 of 2022 under Order VII, Rule 11 of C.P.C by the learned III Additional District Judge, Villupuram at Kallakurichi based on subsequent developments and based on the contents of the affidavit filed by the Defendants in O.S.No. 306 of 2022, as Petitioners in I.A.No.437 of 2022 is perverse.
9. The learned Counsel for the Appellant relied on the following rulings of the Hon'ble Supreme Court in support of his submission that the order passed in I.A.No.437 of 2022 in O.S.No.306 of 2022 rejecting the Plaint under Order VII Rule 11 is erroneous. Therefore, he seeks to set aside the 5/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 same.
10. In support of his contention, the learned Counsel for the Appellant relied upon the following rulings:-
10.1. G.Subramani vs. V.Rajasekar and other reported in MANU/TN/0921/2013, wherein it is held as under:
“10. So far as the question of suppression of material fact is concerned, this Court is of the considered view that the revision Petitioner has not made out any case that there has been a suppression of a material fact on the question of jurisdiction or cause of action, which can be viewed as an abuse of process of Court. The contention that the first Respondent/Plaintiff has chosen to deny the receipt of an amount allegedly paid to him in consideration of his retirement from the partnership firm and the denial of due execution of the retirement deed by him, shall not be the ground on which the Plaint can be rejected, as the contention of the revision Petitioner, in this regard, is that the first Respondent/Plaintiff has made a false allegation. Such a contention has to be tried as an issue and decided in the suit and the same can never be a ground for rejection of the Plaint .” 10.2. State Trading Corporation of India Limited and Ors vs. Glencor Grain B.V. reported in MANU/WB/0164/2015, wherein it is held as under:
“32. There is no provision in law which permits rejection of Plaint or dismissal of the suit on the basis of subsequent events. The case of the Defendant in support of dismissal is really their defence in the suit and, therefore, the same cannot be considered for the purpose of rejection of the Plaint . This proposition is well-settled even from the decisions cited by the Plaintiffs, namely, Sopan Sukhdeo (supra) Paragraph 10 and Church of Christ Charitable Trust (supra) Paragraph 11.” 10.3. The Church of Christ charitable Trust and Educational Charitable Society, represented by its Chairman vs. Ponniamman 6/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 Educational Trust represented by its Chairperson/Managing Trustee, reported in MANU/SC/05154/2012 wherein it is held as under:
“21. In the light of the above discussion, in view of the shortfall in the Plaint averments, statutory provisions, namely, Order VII Rule 11, Rule 14(1) and Rule 14(2), Form Nos. 47 and 48 in Appendix A of the Code which are statutory in nature, we hold that the learned single Judge of the High Court has correctly concluded that in the absence of any cause of action shown as against the 1st Defendant, the suit cannot be proceeded either for specific performance or for the recovery of money advanced which according to the Plaintiff was given to the 2nd Defendant in the suit and rightly rejected the Plaint as against the 1st Defendant. Unfortunately, the Division bench failed to consider all those relevant aspects and erroneously reversed the decision of the learned single Judge. We are unable to agree with the reasoning of the Division Bench of the High Court.” 10.4. Urvashiben and Ors. Vs.Krishnakant Manuprasad Trivedi reported in MANU/SC/1486/2018, wherein it is held as under:
“11. It is fairly well settled that, so far as the issue of limitation is concerned, it is a mixed question of fact and law. It is true that limitation can be the ground for rejection of Plaint in exercise of powers Under Order VII Rule 11(d) of the Code of Civil Procedure. Equally, it is well settled that for the purpose of deciding application filed Under Order VII Rule 11 only averments stated in the Plaint alone can be looked into, merits and demerits of the matter and the allegations by the parties cannot be gone into. Article 54 of the Limitation Act, 1963 prescribes the limitation of three years, for suits for specific performance.” 10.5. Mayar(H.K.) Ltd and Ors. Vs. Owners and parties, Vessel M.B.Fortune Express and Ors. reported in MANU/SC/8083/2006, wherein it is held as under:
“10. Under Order VII Rule 11 of the Code, the Court has jurisdiction to reject the Plaint where it does not disclose a cause of action, where the relief claimed is undervalued and the valuation is not corrected within a time as fixed by the Court, where insufficient court fee is paid and the additional 7/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 court fee is not supplied within the period given by the Court, and where the suit appears from the statement in the Plaint to be barred by any law. Rejection of the Plaint in exercise of the powers under Order VII Rule 11 of the Code would be on consideration of the principles laid down by this Court. In T. Arivandandam v. T.V. Satyapal and Anr. MANU/SC/0034/1977 : [1978]1SCR742 , this Court has held that if on a meaningful, not formal, reading of the Plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, the Court should exercise its power under Order VII Rule 11 of the Code taking care to see that the ground mentioned therein is fulfilled. In Roop Lal Sethi v. Nachhattar Singh Gill, MANU/SC/0521/1982 : (1982) 3 SCC 487, this Court has held that where the Plaint discloses no cause of action, it is obligatory upon the court to reject the Plaint as a whole under Order VII Rule 11 of the Code, but the rule does not justify the rejection of any particular portion of a Plaint . Therefore, the High Court could not act under Order VII Rule 11(a) of the Code for striking down certain paragraphs nor the High Court could act under Order VI Rule 16 to strike out the paragraphs in absence of anything to show that the averments in those paragraphs are either unnecessary, frivolous or vexatious, or that they are such as may tend to prejudice, embarrass or delay the fair trial of the case, or constitute an abuse of the process of the court. In ITC Ltd. v. Debts Recovery Appellate Tribunal MANU/SC/0968/1998 :
AIR1998SC634 , it was held that the basic question to be decided while dealing with an application filed by the Defendant under Order VII Rule 11 of the Code is to find out whether the real cause of action has been set out in the Plaint or something illusory has been projected in the Plaint with a view to get out of the said provision. In Saleem Bhai and Ors. v. State of Maharashtra and Ors. MANU/SC/1185/2002 : [2002]SUPP5SCR491 , this Court has held that the trial court can exercise its powers under Order VII Rule 11 of the Code at any stage of the suit before registering the Plaint or after issuing summons to the Defendant at any time before the conclusion of the trial and for the said purpose the averments in the Plaint are germane and the pleas taken by the Defendant in the written statement would be wholly irrelevant at that stage. In Popat and Kotecha Property v. State Bank of India Staff Association MANU/SC/0516/2005 : (2005)7SCC510 , this Court has culled out the legal ambit of Rule 11 of Order VII of the Code in these words: There cannot be any compartmentalization, dissection, segregation and inversions of the language of various paragraphs in the Plaint . If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence of a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words or 8/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time, it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair- splitting technicalities.
11. From the aforesaid, it is apparent that the Plaint cannot be rejected on the basis of the allegations made by the Defendant in his written statement or in an application for rejection of the Plaint . The Court has to read the entire Plaint as a whole to find out whether it discloses a cause of action and if it does, then the Plaint cannot be rejected by the Court exercising the powers under Order VII Rule 11 of the Code. Essentially, whether the Plaint discloses a cause of action, is a question of fact which has to be gathered on the basis of the averments made in the Plaint in its entirety taking those averments to be correct. A cause of action is a bundle of facts which are required to be proved for obtaining relief and for the said purpose, the material facts are required to be stated but not the evidence except in certain cases where the pleadings relied on are in regard to misrepresentation, fraud, wilful default, undue influence or of the same nature. So long as the Plaint discloses some cause of action which requires determination by the court, mere fact that in the opinion of the Judge the Plaint iff may not succeed cannot be a ground for rejection of the Plaint. In the present case, the averments made in the Plaint , as has been noticed by us, do disclose the cause of action and, therefore, the High Court has rightly said that the powers under Order VII Rule 11 of the Code cannot be exercised for rejection of the suit filed by the Plaint iff-Appellants.”
11. Therefore, in the light of the above judgments, the learned Counsel for the Appellant seeks to set aside the order passed by the learned III Additional District Judge, Villupuram at Kallakurichi in I.A.No.437 of 2022 in O.S.No.306 of 2022 dated 03.01.2024
12. The learned Senior Counsel Mr.A.Thiyagarajan appearing for the Respondents would submit that the question is whether a suit based on a 9/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 mortgage is maintainable when the party who had executed mortgage deed in favour of the Plaintiff in O.S.No.306 of 2022 is a competent person to execute such a contract as per Section 25 of the Contract Act, which reads as follows:.
“25. Agreement without consideration, void, unless it is in writing and registered,or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law.—An agreement made without consideration is void, unless— (1) it is expressed in writing and registered under the law for the time being in force for the registration of 1 [documents], and is made on account of natural love and affection between parties standing in a near relation to each other ; or unless (2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless; (3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits. In any of these cases, such an agreement is a contract. Explanation 1.—Nothing in this section shall affect the validity, as between the donor and donee, of any gift actually made. Explanation 2.—An agreement to which the consent of the promisor is freely given is not void merely because the consideration is inadequate; but the inadequacy of the consideration may be taken into account by the Court in determining the question whether the consent of the promisor was freely given.”
13. The property which was mortgaged was purchased in the name of minor by his maternal grand father appointing the father of the minor as guardian of the minor's property. It is the specific recital that he shall not encumber the property and his duty was to safeguard the minor's property. Instead, he had violated the recital in the sale deed and had involved in effecting mortgage of the property causing encumbrance of the minor's property. He is incompetent to enter mortgage with the Plaintiff as he is not the 10/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 owner of the property. He is only a guardian of the minor's property and he had only to safeguard the interest of the minor in the property. Therefore, the contract of mortgage is void ab initio as per provisions of The Contract Act. The learned Senior Counsel for the Respondents invited attention of this Court to the recitals in the mortgage deed dated 23.06.2014. No where it is stated under what capacity he had entered into mortgage with the Plaintiff. Whether he is the owner or whether he is the power of attorney and the relationship between him and the property, had not been expressed in the recitals. The gist of the mortgage deed indicates that it is illegal and unenforcible contract, which cannot be enforced against minor. Also, as on date of such mortgage deed, the minor had obtained the age of majority. Therefore, if at all, the property ought to be mortgaged, it was for the true owner of the property to engage in contract with the Plaintiff. Therefore, these documents were marked during the enquiry in I.A.No.437 of 2022 in O.S.No.306 of 2022. As per the recital in sale deed executed in favour of the minor by the maternal grand father, he shall hand over the possession of the property in favour of the minor when the minor attains the age of majority. On the date of the execution of mortgage deed, the minor had attained the age of majority. Therefore, the person Mohammed Ghouse, the guardian of the property of the minor, instead of entering into contract of mortgage with the Plaintiff ought to have handed 11/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 over the possession to the minor and he had not done so. Therefore, the alleged contract of mortgage is void ab initio.
14. The Plaintiff had filed a suit for recovery of money based on the mortgage deed which itself is void ab initio. Therefore, the learned III Additional District Judge, Villupuram at Kallakurichi, on proper appreciation of the facts stated in the Plaint, had rejected the Plaint. The learned Senior Counsel invited the attention of this Court to the document marked in the petition for rejection of Plaint as Ex.P-1 which is the mortgage deed. No where in the mortgage deed, it is mentioned that the person entering into mortgage with the Plaintiff is entering into such mortgage under what authority as owner of the property or as power of attorney and the relationship of the person entering into the mortgage is not at all clear. It only states about the receipt of the money and the description of the property. As per the claim of the Defendants in the suit in O.S.No.306 of 2022, the mortgage deed itself is a fraudulent deed obtained by the husband of the Plaintiff misusing the relationship of the guardian of the minor for his unlawful act of grabbing the minor's property with an ulterior motive. The executant of the mortgage deed viz., father of the Defendants 3 to 5 had not received any money under the said mortgage deed. Therefore, the suit filed by the Plaintiff itself is not 12/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 maintainable.
15. The learned Senior Counsel for the Respondents submitted that the learned III Additional District Judge, Villupuram at Kallakurichi had also relied on the Plaint averments as per the mandate of Order VII Rule 11 of C.P.C, stating as per the law of Contract, the mortgage itself is void ab initio. Therefore, as per Order VII Rule 11 of C.P.C., the Plaintiff cannot maintain the suit. Also, the learned Senior Counsel invited the attention of this Court to paragraph No.4 of the Plaint averments which reads as follows:
“4. (m) thjpf;F. FLk;g nkyhsuhd 1k;
gpujpthjpapd; kfDk; 2k; gpujpthjpapd; fztUk; 3.4.5
gpujpthjpfspd; je;ija[khd v!;/vk;/ft[!; vd;gth;
capUld; ,Uf;Fk; nghJ thjpaplk; bjhHpy;
bra;tjw;fhft[k;. kfdpd; gog;g[ bryt[f;fhft[k;.
02/04/2012 njjpapy; $t;thJ cnrd; fhd; vd;gthplk;
th';fpa UPP/10.00.000—k; fld; bjhifia igry;
bra;at[k; gzk; njitg;gLtjhft[k; nfl;L rhpahd
gpujpgpunah$dk; buhf;fk; UPP/10.00.000—k; (UPgha;
gd;dpud;L ,yl;rk; kl;Lk;) thjpaplk; bgw;Wf;bfhz;L
jhth mlkhd fld; gj;jpuk; fle;j 23.06/2014 njjpapy;
vKjp bfhLj;jpUf;fpwhh;/ jhth mlkhd brhj;jpy;
,we;J nghd ft[!; capUld; ,Ue;j nghJ mth;
rk;ghjpj;j tUkhdj;ij bfhz;L bkj;ijtPL fl;o
FoapUe;J mDgtk; bra;J te;j epiyapy; 15/07/2014
njjpapy; ,d;l!;nll;lhf ,we;J tpl;lhh;/ ,we;j ft[!;
vd;gtUf;F nkw;fz;l 1 Kjy; 5 tiuapyhd
gpujpthjpfs; kl;Lnk rl;lg;goahd thhpRjhuh;fs;
Mthh;fs;/ mjdhy; jhth mlkhd fld; bjhifia
gpujpthjpfs; thhpR mog;gilapYk; rl;lg;goa[k; igry;
bra;a flikg;gl;lth;fs; Mthh;fs;/ jhth mlkhd fld; gj;jpug;go thjpf;F bfhLf;f ntz;oa mry;
bjhif U:/12.00.000-?f;Fk; khjk; xd;Wf;F U:/100-?f;F 13/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 U:gha; xd;W tl;o tPjk; nrh;j;J Toa mrYk; tl;oa[k;
nkw;goahh; ntz;Lk;nghJ mtUf;fhtJ my;yJ mtuJ cj;jut[ bgw;wth;fSf;fhtJ bfhLj;J igry;
bra;tjhf xg;g[f;bfhz;L thjpf;F jhth mlkhd fld;
gj;jpuj;ij r';fuhg[uk; tl;lk;. f!;gh r';fuhg[uk;
rhh;gjptfj;jpy; thjp bgaUf;F. ,we;J nghd ft[!;
vGjp gjpt[ bra;J bfhLj;jpUf;fpwhh;/”
16. Wherein it is stated that the notice was sent on behalf of the Plaintiff, which was replied by the Defendants stating that the father of the Defendants 3 to 5, was incompetent to enter into the mortgage with the Plaintiff. As on the date of the said mortgage, the minor had attained the age of majority. Therefore, the said contract is void ab initio and therefore, the claim of the Plaintiff is barred by law. This part of the Plaint was relied by the learned Judge, to reject the Plaint . Therefore, the rulings cited by the learned Counsel for the Appellant will not hold good in the facts and circumstance of this case in the light of Plaint averments. Therefore, the order passed by the learned III Additional District Judge, Villupuram at Kallakurichi is proper and as per law and not perverse. The appeal lacks merit and is liable to be dismissed.
Point for determination:-
Whether the order passed by the learned III Additional District Judge, Villupuram at Kallakurichi in I.A.No.437 of 2022 in O.S.No.306 of 2022 dated 03.01.2024 is perverse and is 14/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 liable to be set aside?
17. Heard the submissions of the learned Counsel for the Appellant Mr.R.Chandra Sudan and the learned Senior Counsel for the Respondents Mr.A.Thiyagarajan and perused the Plaint in O.S.No.306 of 2022 and the order passed by the learned III Additional District Judge, Villupuram at Kallakurichi
18. On a perusal of the order passed by the learned III Additional District Judge, Villupuram at Kallakurichi and the Plaint in O.S.No.306 of 2022, it is found that the cause of action as stated by the Plaintiff in the Plaint indicates that the Defendants had replied to the pre suit notice sent by the Plaintiff by stating that the alleged mortgage executed by the son of the first Defendant and the husband of the second Defendant and the father of the Defendants 3 to 5 is against law. The property was purchased by the maternal grand father of the third Defendant, in which the maternal grand father had specifically stated that the property shall not be encumbered during the age of minority of the third Defendant and it shall be handed over to the minor on his attaining the age of majority without any encumbrance. The Plaint averments stated that when the pre suit notice was sent to the Defendants, the third Defendant sent a reply stating that after receipt of the notice by the Plaintiff, 15/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 they verified with the encumbrance certificate regarding the suit property and they found that there is encumbrance created by the father of the Defendants 3 to 5. The father of the Defendants 3 to 5 did not have any necessity to borrow any amount. The house where the Defendants reside was constructed with the monetary help provided by the maternal grand father of the third Defendant. There was no necessity for availing loan by the father of the Defendants 3 to 5 and they are not liable to the alleged mortgage deed. It is a deed created fraudulently by the Plaintiff in collusion with her brother who is a Document Writer and it does not bind the minor third Defendant. In the reply to the pre- suit notice sent by the third Defendant it is stated that on the alleged date of mortgage deed dated 23.06.2014, the third Defendant had attained the age of majority. Instead of handing over possession to the third Defendant, the alleged document created by the father of the Defendants 3 to 5 in favour of the Plaintiff is not enforcible in law and it is against the recitals under Ex.P-1 sale deed. Therefore, the averments in the Plaint itself indicate that the Defendants stoutly contested the claim of the Plaintiff in the pre-suit notice by stating the facts regarding the purchase of the property by the maternal grand father in the name of minor who was aged about 8 years at the time of purchase of property. Only in continuation of the said notice, the Defendants had filed the petition under Order VII, Rule 11 of CPC in I.A.No.437 of 2022 . 16/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 The claim of the learned Counsel for the Appellant is that the learned III Additional District Judge, Villupuram at Kallakurichi rejected the Plaint on the ground of extraneous consideration against the provisions of Order VII Rule 11 of CPC, by not relying upon the Plaint averments but by relying upon the affidavit of the Defendants as Petitioner in I.A.No.437 of 2022 and that therefore, the order passed by the learned III Additional District Judge, Villupuram at Kallakurichi is perverse and cannot be accepted in the light of the rulings provided by the learned Counsel for the Appellant which insist that plaint pleadings alone will have to be considered. Here the pleadings give an indication that the Defendants disputed the claim of the Plaintiff regarding the execution of mortgage deed by the father of the third Defendant. As per the reply notice of the Defendants, the mortgage created by the son of first Defendant, itself is against the recitals of the sale deed wherein the property was purchased in the name of the minor appointing the father of the minor as guardian of the property with a condition that he shall not create any encumbrance till the minor attains the age of majority. Against the said recitals, the father of the third Defendant had entered into mortgage deed with the Plaintiff. The reply by the third Defendant indicates that it was against the conditions imposed by the maternal grand father of the third Defendant. In support of the contention, they had marked documents as Ex.P1 to Ex.P6. The 17/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 learned Judge on consideration of the same had arrived at a conclusion that the suit is barred by law. As pointed out by the learned Senior Counsel for the Respondents, Section 25 of the law of the Contract, states that any contract between the two individuals is only valid if the person involving in the contract is competent to involve in such contract. As rightly pointed out by the learned Senior Counsel for the Respondents, the learned Judge had in support of the Plaint averments regarding liability relied on the documents filed in I.A. Therefore, in the light of the Plaint pleadings and in the light of the documents marked as Ex.P-1, sale deed dated 12.03.2004 in which the property was purchased by the maternal grand father of the Defendants 3 to 5 in the name of the minor third Defendant who was 8 year old on the date of purchase, for whom the father of minor Mohammed Ghouse was appointed as Guardian of the property with specific condition that the property purchased in the name of the minor grandson by the maternal grand father of the minor shall not be encumbered till the minor Mohammed Yazar attain the age of majority and it shall be handed over to him safely on his attaining age of majority. The claim of mortgage over the same property by the plaintiffs as per the averments in paragraph No.4 of the plaint is found in violation of the condition in the sale deed dated 12.03.2004. The contract claimed by the Plaintiff is void ab initio. The Plaint was rejected on the ground that it is unenforcible contract 18/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 which is barred by law. Therefore, the order, under Order VII, Rule 11 of CPC, in the suit by the Plaintiff seeking recovery of money on alleged mortgage deed, by the learned III Additional District Judge, Villupuram at Kallakurichi, is found reasonable. In the reported decision cited by the learned Counsel for the Appellant, it is stated that only Plaint pleadings alone had to be considered. Here the Plaint averments itself gives an indication that the third Defendant had replied to the pre-suit notice, disputing the claim of the Plaintiff. Only in support of such dispute regarding maintainability, the documents were marked on the side of the Defendant as Ex.P-1 to Ex.P-6. Therefore, the judgment of the learned III Additional District Judge, Villupuram at Kallakurichi is not found perverse as submitted by the learned Counsel for the Appellant. It is a contract unenforcible as per Section 25 of the Contract Act. As rightly pointed out by the III Additional District Judge, Villupuram at Kallakurichi Plaintiff ought to have obtained leave of the Court regarding the property in the name of the minor. Without following those procedures, the Plaintiff has filed the suit for recovery of money based on mortgage which is found unacceptable and unreasonable. The submissions of the learned Counsel for the Appellant that the learned Judge had passed orders by relying upon the documents filed on the side of the Petitioner/Defendant in O.S.No.306 of 2022 is not acceptable in the light of the submissions of the 19/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 learned Senior Counsel for the Respondents. The fact that Plaintiff issued pre suit notice which was received by the Defendants and the same was rightly replied by the third Defendant. The alleged contract of mortgage itself is against the recitals of the sale deed in favour of the minor third Defendant wherein the maternal grand father of the third Defendant had insisted that the guardian of the minor shall not encumber the property till the minor attains the age of majority. On the date of alleged mortgage deed, the third Defendant had attained the age of majority. It is for the Plaintiff to obtain prior permission from the Court regarding minors property. Since the Plaintiff had not obtained such permission, the suit is barred under law. Therefore, the learned III Additional District Judge, Villupuram at Kallakurichi had rightly rejected the Plaint.
19. The submission of the learned Senior Counsel for the Respondents is found acceptable in the light of the discussion by the learned III Additional District Judge, Villupuram at Kallakurichi in rejecting the plaint under Order VII, Rule 11 C.P.C. The reliance upon the Hon'ble Supreme Court rulings by the learned Counsel for the Appellant will not help the Plaintiff's case herein. The learned Judge passed order relying on the Plaint averments itself. Therefore, the submission of the learned Counsel for the Appellant is 20/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 rejected.
20. In the light of the above discussion, the point for consideration is answered in favour of the Respondents/Defendants against the Appellant/Plaintiff. The order dated 03.01.2024 passed in I.A.No.437 of 2022 in O.S.No.306 of 2022 by the learned III Additional District Judge, Villupuram at Kallakurichi, is a well reasoned order which does not warrant any interference by this Court.
In the result, this Appeal Suit is dismissed. The order dated 03.01.2024 passed in I.A.No.437 of 2022 in O.S.No.306 of 2022 by the learned III Additional District Judge, Villupuram at Kallakurichi is confirmed. No costs. Consequently, connected miscellaneous petition is closed.
24.06.2025 jai Index:Yes/No Internet: Yes/No Neutral Citation:Yes/No 21/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm ) A.S. No.429 of 2024 SATHI KUMAR SUKUMARA KURUP, J.
jai To
1. The III Additional District Judge, Kallakurichi.
2. The Section Officer, V.R. Section, High Court, Madras.
Judgment in A.S.No.429 of 2024 24.06.2025 22/22 https://www.mhc.tn.gov.in/judis ( Uploaded on: 07/08/2025 06:47:29 pm )