Madras High Court
N.Ramachandran vs E.Varadarajan on 28 February, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28/02/2014 CORAM THE HON'BLE MR.JUSTICE R.S.RAMANATHAN APPLICATION No.1732 of 2013 in C.S. No.755 of 2012 N.RAMACHANDRAN OLD NO.2, NEW DOOR NO.2/1, 2/2 SHERIFUDDIN SAHIB ST, CHOOLAIMEDU, CHENNAI 94 VS E.VARADARAJAN NO.872, T.H.ROAD, THIRUVOTTIYUR, CHENNAI 19 ORDER
APPLICATION No.1732 of 2013 in C.S.No.755 of 2012 R.S.RAMANATHAN The defendant in C.S.No.755 of 2012 is the applicant in this Application. The applicant/defendant filed the Application to reject the plaint on the ground of limitation, under Order II Rule 2 of the CPC, and also on the ground of res judicata.
2. It is submitted by the learned counsel for the applicant that the present suit is filed by the respondent/plaintiff for the relief of declaration to declare the release deed executed by N.Ethirajan, in favour of the applicant/defendant dated 30.12.1972 as ab initio, illegal, improper, invalid and null and void and not binding on the plaintiff and for passing preliminary decree by dividing the suit properties into two equal shares and to allot one such share to the plaintiff/respondent.
3. The learned counsel further submitted that as per the averments made in the plaint, the suit property originally belonged to one V.Natesa Pillai and he was the Kartha of the undivided family of himself, his wife, and two sons, namely, N.Ethirajan and N.Ramachandran and four daughters. The said Natesa Pillai purchased the suit property from and out of the nucleus and also under a partition deed dated 2.4.1940, he entered into with his brothers and therefore, the suit property belonged to Natesa Pllai, his two sons, wife and four daughters and all of them constituted Hindu Undivided Family. The said Natesa Pillai died on 5.1.1959 and after his death for better administration of the property, his widow and four daughters executed a release deed on 23.11.1959 in favour of N.Ethirajan and N.Ramachandran - the defendant/applicant and from that date onwards, sons of Natesan Pillai, namely, N.Ethirajan and N.Ramachandran were absolutely in enjoyment of the property as co-owners. The plaintiff/respondent is the son of N.Ethirajan. The said Ethirajan died on 16.1.1998. He got married on 30.1.1971. When the respondent/plaintiff was in the womb of his mother, his father Ethirajan executed a release deed dated 30.12.1972 relinquishing his half share in the suit property in favour of the applicant/defendant and being a co-parcenar of the property, the respondent/plaintiff is entitled to 1/4 share in the said property as he was in the womb of his mother at the time of the execution of the release deed by his father Ethirajan on 30.12.1972 and therefore, the plaintiff/respondent and his mother filed O.S.No.5316 of 2001 on the file of Third Additional Judge, City Civil Court, Chennai against the applicant/defendant for partition of their half share in the suit property. In that suit, preliminary decree was passed holding that the plaintiff/respondent is entitled to 1/4 share and in appeal filed by the applicant/defendant in A.S.No.632 of 2003, this Court allowed the appeal and set aside the Judgment and decree of the trial Court and also held that the release deed dated 30.12.1972 marked as Ex.P.11 in O.S.No.5316 of 2001 is only a voidable instrument which can be set aside at the option of the aggrieved party and no steps were taken to set aside the document. The respondent/plaintiff alleged that the release deed dated 30.12.1972 executed by his father Ethirajan in favour of the applicant/defendant is vitiated by fraud and undue influence and therefore, the document is a nullity and ab intio, void and in Appeal Suit No.632 of 2003, this Court while allowing the appeal filed by the applicant/defendant held that the said document ought to have been set aside and therefore, the suit was filed for declaration and for preliminary decree as stated above. It is also stated in the plaint that the suit is not barred by res judicata as the issue of fraud and undue influence was not at all an issue in the earlier suit. The learned counsel appearing for the applicant/defendant, therefore, submitted that having regard to the judgment of this court in A.S.No.632 of 2003 wherein this Court has specifically approved the finding of the trial Court that the release deed dated 30.12.1972 executed by Ethirajan father of the plaintiff/defendant was valid document and the respondent/plaintiff was not entitled to claim any share in that property by virtue of Section 20 of the Hindu Succession Act and even assuming that he was in the womb of his mother when the release deed was executed by Ethirajan in favour of the applicant/defendant, he ought to have applied for setting aside the said document and he has not done so. Therefore, the present suit is a clear case of relitigation and abuse of process of law and it is also barred by resjudicata and the suit is also barred by limitation as the suit to set aside transaction, ought to have been filed within 3 years period from the date of knowledge and even according to the respondent/plaintiff, he came to know about the release deed dated 30.12.1972 in the year 1998 and no steps were taken to set aside the transaction within the period of 3years and therefore, having regard to the finding in O.S.No.5316 of 2001 on the file of the Third Additional City Civil Judge and A.S.No.632 of 2003 of this Court, the present suit is a clear abuse of process of Court and amounts to re-litigation and on that ground, it is liable to be rejected. The learned counsel further submitted that the respondent/plaintiff also filed SLP against the judgment of this Court made in A.S.No.632 of 2003 and the SLP was also dismissed and having failed in the earlier litigation, a vexatious suit has been filed by the respondent/plaintiff.
4. On the other hand, the learned counsel for the plaintiff/respondent submitted that the suit cannot be dismissed on the ground of limitation or on the ground of res judicata or on the ground of Order II, Rule2 without framing any issue and without letting in evidence. He also submitted that whether the present suit filed by the respondent/plaintiff for declaration that the release deed dated 30.12.1972 executed by his father was obtained by fraud and undue influence and therefore, it is void, ab initio can be decided only on the basis of evidence let in and, in the earlier suit, no issue was framed regarding fraud and undue influence exerted by the defendant herein and the applicant, and in that, the earlier suit the main question was whether the plaintiff was entitled to half share as co-parcener along with father and this Court also observed in the first appeal while setting aside the judgment of the trial Court that without setting aside the release deed dated 30.12.1972, the plaintiff cannot claim any right and therefore, the present suit is filed on a different cause of action that the release deed dated 30.12.1972 is vitiated by fraud and undue influence and therefore, it is also not barred by Order II Rule 2 and the earlier suit will not operate as res judicata as no issue was framed regarding fraudulent nature of the document. He also submitted that limitation is a mixed question of law and fact and the suit cannot be dismissed on the question of limitation.
5. He also relied upon the following judgment in support of his contention:-
(i) AIR 1964 SC 1810 (Burbux Singh v. Bhooralal)
(ii) AIR 1997 SC 1398 (M/s.Bengal Waterproof Ltd vs. M/s.Bombay Waterproof Manufacturing Company and another
(iii) (2003) 1 SCC 557 (Salem Bhai & Ohters vs. State of Maharashtra and others)
(iv) (2005) 13 SCC 506 (Vigneswara Co-op.Housing Society Ltd., Vs. Balachandra Mouli and others)
(v) (2005) 7 SCC 510 (Popat and Kotecha Property Vs. State Bank Staff Association)
(vi) (2006) 5 SCC 668 (Balasaria Construction (P) Ltd vs. Hanuman Seva Trust & others)
(vii) (2006) 5 SCC 638 (Ramesh B.Desai & others Vs. Bipin Vadilal Mehta & others)
(viii)(2008) 12 SCC 661 (Kamala & others Vs. K.T.Eshwara Sa and others)
(ix) (2010) 10 SCC 141(Alka Gupta Vs. Narendra Kumar Gupta)
(x) 2012 (6) SCALE 121 (Church of Christ Charitable Trust & Educational Charitable Society Vs. M/s.Ponniamman Educational Trust)
(xi) CRP (PD) No.4210 of 2001 dated 03.11.2010 (Indrakumar Mahendran Vs. G.R.Pathmaraj and others)
(xii)S.A.No.711 of 2009 dated 08.01.2013 (R.Arumugam V. PR.Palanisamy and another)
6. Before considering the rival submissions of both the parties, we will have to see the admitted facts. O.S.5316 of 2001 was filed by the respondent/plaintiff for partition of his half share in the suit property. In that suit, in Paragraph 7, the respondent/plaintiff has taken a plea that the release deed dated 30.12.1972 was void, illegal, inoperative and unenforceable and not binding on the plaintiff under Hindu Law on the ground that the release deed was collusive and not genuine and was fictitious and not acted upon and sham and nominal document and that would not operate relinquishment of the rights of the plaintiffs and the plaintiffs' right in respect of his half share in the co-parcenary property cannot be deprived of by reason of the release deed executed by his father on 30.12.1972 in favour of the applicant/defendant in this suit. In the said suit O.S.No.5316 of 2001, Issue No.3 is whether the release deed dated 30.12.1972 executed by Ethirajan in favour of the defendant is not binding on the plaintiffs, namely, the present plaintiff. In the said suit, the release deed dated 30.12.1972 was marked as Ex.B.11. While answering Issue No.3, the trial Court held that Ex.B.11 release deed executed by Ethirajan is a true document executed for consideration and it has come into force and the contention of the plaintiff that the document is sham and nominal document and it has not come into force cannot be accepted. Nevertheless, the trial court granted 1/4 share to the first plaintiff on the ground that the property was a co-parcenary property of Natesan Pillai and his two sons and on the date of execution of release deed dated 30.12.1972, the plaintiff was in the womb of his mother and therefore, he was entitled to 1/4th share and therefore, the release deed executed by his father would not bind the 1/4th share of the plaintiffs and decreed the suit. In A.S.No.632 of 2003 filed by the applicant/defendant herein challenging the decree in O.S.No.5316 of 2001, this Court held that the plaintiff and his father never constituted co-parcenary and the plaintiff was not entitled to claim 1/4 share by virtue of Section 20 of the Hindu Succession Act, 1956 and also held that the property was not co-parcenary property and therefore, the first plaintiff cannot claim any right by birth in that property and the trial Court finding in Ex.B.11 release deed dated 30.12.1972 was also upheld and as the release deed was genuine, it was not open to the plaintiff to set aside on the ground of misrepresentation, fraud, coercion or undue influence.
7. Even though the learned Judge held that even assuming that the release deed was not binding on the plaintiff and at the most, it can be a voidable instrument, it ought to have been set aside at the option of the aggrieved party, it was also held that it was only an academic question as the trial court has already held that Ex.B.11 release deed is valid in law and therefore, it is not open to the plaintiff to set aside the same on the ground of fraud, misrepresentation, coercion or undue influence. Therefore, having regard to the above finding given by the learned single Judge in A.S.No.632 of 2003 that the release deed was valid and binding on the plaintiff, it is not open to the plaintiff to challenge the same on the ground of fraud, undue influence or misrepresentation or coercion in the present suit while seeking for declaration that the release deed is void as it was obtained by fraud, coercion and undue influence, and in my opinion, it is only a clear abuse of process of Court and clear case of relitigation.
8. In the judgment reported in (2008) 3 MLJ 821 (M.Somasundram and another v. District Collector-cum-Accommodation Controller, Chennai), this Court held that the suit is liable to be rejected when it amounts to relitigation and abuse of process of Court. Therefore, the judgments relied upon by the learned counsel for the respondent/plaintiff that the suit cannot be rejected on the ground of limitation or on the ground of res judicata or Order II, Rule 2 CPC without framing any issue and without letting in evidence cannot be applied to the facts of the case. As a matter of fact, in the judgment reported in 2012 (6) SCALE 121 supra, the Hon'ble Supreme Court held that if the allegations are innocuous, meritless and not disclosing any clear right or materials to sue, it is the duty of the the trial Court to exercise the power under Order VII, Rule 11 of the CPC.
9. Though the suit cannot be rejected on the ground of res judicata, when the Court has to conduct roving enquiry as per the judgments referred to above and cited by the learned counsel for the respondent/plaintiff, when the suit is per se barred by limitation on the basis of the allegations made in the plaint or when the suit is barred by Order II Rule 2 of the CPC, the Court has got power to reject the plaint.
10. Admittedly, in O.S.No.5316 of 2001, no plea was raised challenging the release deed dated 30.12.1972 executed by the father of the plaintiff in favour of the defendant on the ground that it was vitiated by fraud and undue influence and that was collusive and not genuine, innocuous and not acted upon and sham and nominal document and never came into operation. The trial Court as well the appellate Court upheld that the release deed was genuine and it was acted upon and was valid document. Having got that finding, it is not open to him to contend now that the release deed was vitiated by fraud, undue influence and coercion and therefore, he is not entitled to challenge the same after losing the battle in the earlier suit. Even according to the plaintiff/respondent, he came to know about the release deed in the year 1998 and he has not challenged the release deed even in 2001 on the ground of fraud, undue influence and coercion. Even as per the judgment of this Court in A.S.No.632 of 2003 even assuming that the release deed was a voidable one, it ought have been set aside within the period of limitation and therefore, the release deed ought to have been set aside within 3 years from the date of knowledge and he came to know about the release deed in the year 1998 and the release deed ought to have been set aside within 3 years, and therefore, the suit instituted in the year 2001 is also clearly barred by limitation. To arrive at this finding, there is no need to depend upon any other material and this can be ascertained from the documents filed along with the plaint, namely, judgment in O.S.No.5316 of 2001 and A.S.No.632 of 2003. Therefore, on this ground also, the suit is liable to be rejected. However, it is made clear that the present suit is a clear case of abuse of process of Court and amounts to relitigation and on that ground, the suit is liable to be rejected and the same is rejected. The Application is allowed.
asvm