Madras High Court
N.Karthik vs Jain Natarajan :Respondent/Plaintiff on 25 April, 2023
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
2023/MHC/2274
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 25.04.2023
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S(MD)No.96 of 2023
and
C.M.P(MD)No.5743 of 2023
N.Karthik :Appellant/Third party
.vs.
1.Jain Natarajan :Respondent/Plaintiff
2.M.Natarajan Mudaliar
3.N.Sindhuja :Respondents/Defendants
PRAYER: Appeal Suit filed under Section 146 r/w 96 of the Civil
Procedure Code against the decree and judgment made in O.S.No.
62 of 2015, dated 28.6.2022 on the file of the Additional District
and Sessions Judge(Fast Track Court), Nagercoil, Kanyakumari
District.
For Appellant :Mr.M.Jahangir Basha
For Respondent-1 :Mr.M.P.Senthil
For Respondent-3 :Mr.B.Thangamani
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JUDGMENT
*************
The appeal suit has been filed challenging the judgment of
the trial Court granting a decree for declaration and for recovery of
possession by the consent of the defendants, as a third party.
2.It is relevant to note that the appellant's mother was a
party to the suit. There was no challenge to the decree and
judgment by the mother of the appelant. However, her son has filed
this appeal challenging the decree and judgment and according to
him, his rights have been affected.
3.The parties are referred to herin as per their own ranking
before the trial Court.
4.The brief facts leading to the filing of this appeal suit is as
follows:
The suit has been filed by the plaintiff, being the wife of the
first defendant, claiming that though the suit property originally
purchased in the name of her husband, the entire sale
consideration has been paid by her, while she was working in
America on 14.03.2013 and after her return from America, her
husband has executed a settlement deed on 18.11.2011. By virtue
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of the said Setltement Deed, she become the absolute owner of the
suit property. The second defendant has developed some illicit
intimacy with the first defendant and has filed certain matrimonial
proceedings before the Family Court at Chennai in H.M.O.P.No.
1860 of 2000. However, the said O.P was dismissed on the basis of
an affidavit of compromise entered between the first and second
defendants, wherein, she has clearly admitted that she has no
marital relationship with the first defendant. After coming to know
about the purchase of the property and the settlement deed
executed in favour of the plaintiff by the first defendant,the second
defendant and her children barged into the suit property and
illegally occupied the suit property and she has gone to the extent
of filing an application under the Domestic Violence Act claiming
right of residence and the same has been dismissed by the Court
below. Therefore, the plaintiff has filed the suit for declaration and
for recovery of possession of the suit property.
5.The first defendant husband of the plaintiff admitted the
purchase of the suit property from the income of the plaintiff and
has also admitted the execution of the Settlement Deed in favour
of the plaintiff and also disputed the marriage between the first
and second defendant, wherein, he has also supported the case of
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the plaintiff.
6.The second defendant took a stand in the written statement
that the suit property has been purchased from and out of the
income of the first defendant/her husband and the alleged
settlement deed executed in favour of the plaintiff was sham and
nominal and the plaintiff has endorsed that the first defendant
executed a settlement deed in her favour. The Written statement of
the first defendant also not reflected the true facts. According to
her, in family arrangement, the suit properties have been given to
the second defendant and her children by the first defendant and
according to her, she had married the first defendant on
23.12.1990 at Kancheepuram and she is also claiming right over
the property of the first defendant. Hence she disputed the title of
the plaintiff and further, it is the contention that they are in
possession of the suit property for more than 15 years. It is the
further stand of the second defendant that the suit is bad for non-
joinder of necessary parties namely, her sons, who is residing with
her.
7.Based on the above pleadings, the trial Court has framed
eight issues originally and later, the trial Court has deleted the
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issue No.1 and 2 and issues decided by the trial Court is issue No.3
to 8, which reads as follows:
1.Whether the second defendant is the second wife of th first
defendant?
2.Whether the alleged marriage of the first defendant and the
second defendant is legally valid in the eye of law?
3.Whether the suit property was purchased by the first
defendant as an ostensible owner for the plaintiff?
4.Whether the second defendant has any right of residence or
any other allied right in the suit property?
5.Whether the plaintiff is entitled for the relief of declaration
and consequential of recovery of possession from the second
defendant?
6.Whether the plaintiff is entitled for the relief of injunction
as prayed for?
7.Whether the plaintiff is entitled for the relief of mesne
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profits as prayed for?
8.To what other relief, the parties are entitled to?
8.On the side of the plaintiff, she examined herself as P.W.1
and Ex.P1 to Ex.P15 were marked and Ex.C1 to Ex.C4 were
marked. On the side of the defendants, the first defendant
examined himself as D.W.1 and four documents were marked. The
second defendant remained ex-parte before the Trial Court, having
filed a written statement.
9.Based on the above evidence and materials, the trial Court
has decreed the suit in favour of the plaintiff. Challenging the said
decree and judgment, neither the first defendant nor the second
defendant filed any appeal. The present appeal has been filed by
the son of the second defendant, with the leave of the Court.
10.The learned counsel for the appellant would challenge
the decree and judgment of the trial Court mainly on the following
grounds:
1.that the suit is bad for non-joinder of necessary parties and
according to him, on the date of filing the suit, the appellant is
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residing with his mother in the suit property and therefore, the
suit is liable to be dismissed for non-joinder of necessary parties.
2.the so-called Settlement deed has not been proved in the
manner known to law and the original of the settlement deed has
not been produced before the Court below and no attesting witness
was examined to prove the settlement deed.
3.Further, the contention of the appellant is that the plaintiff
has not proved the good faith of transaction, since she was in
active confidence at the time of obtaining the document.
11.The learned counsel for the appellant relied on the
judgment of the Honourable Apex Court in the case of Krishna
Mohal Kul @ Nani Charan Kul and another .vs. Pratima
Maity and others reported in (2004) 9 Supreme Court
Cases 468.
12.The learned counsel for the the first defendant would
submit that the plaintiff was working in America and she has
transferred huge amount in the name of her husband, the first
defendant herein and the same was established under Ex.B1. Only
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after withdrawal of the said amount from the Bank, the suit
properties were purchased in his name. Further, when she
returned from America, the property has been gifted to the
plaintiff by the first defendant. According to him, de-horse the
consideration for the purchase of the property, once the settlement
is executed in favour of the plaintiff, the plaintiff is the absolute
owner of the suit property. Therefore she is entitled to seek for the
relief of declaration and for recovery of possession. Further
contention is that the present appellant is none other than the son
of the first defendant and therefore, the question of making him as
a party to the suit, does not arise at all.
13.The second defendant having taken a stand in the written
statement to the effect that the possession of the property has
been given legally, she has never contested the suit and she
remained ex-parte before the trial Court. The present appellant has
no right to file an appeal challenging the decree and judgment
passed in a suit filed by the plaintiff and the defendants. It is the
further contention that proving good faith of transaction does not
arise at all when the first defendant himself has admitted the
execution of the settlement deed in favour of the plaintiff.
Therefore the question of proving the settlement deed and
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examination of the attesting witness to prove the same, does not
arise at all. It is contention that Ex A11 filed before the trial Court
clearly show that the second defendant herself had admitted
before the Family Court, Chennai, that she is not the wife of the
first defendant and there was no marital relationship between
them. Such being the position, claiming right over the suit
property is without any basis and the same cannot be
countenanced.
14.In the light of the above facts, now the point that arose
for consideration in this appeal suit is as follows:
1.Whether the appellant is having any vested right to file the
present appeal suit as against the judgment and decree passed
against his mother, particularly, when she was alive?
2.Whether the plaintiff is the absolute owner of the suit
property by virtue of the Settlement Deed, dated 18.11.2011?
3.Whether the Settlement Deed suffers on the ground of
fiduciary relationship between the parties?
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4.To what other relief, the appellant is entitled to?
15.The suit itself is filed for declaration and for recovery of
possession. It is not disputed that the suit property was originally
purchased in the name of the first defendant, who is the husband of
the plaintiff. The position of the parties that the plaintiff is the wife
of the first defendant is not disputed. The second defendant claims
to have married the first defendant in the year 1990. However, to
establish the same, no evidence whatsoever was filed before the
trial Court. Be that as it may, Ex.A11 makes it clear that she has
already filed H.M.O.P before the Family Court, Chennai in the year
2000 for restitution of conjugal rights, however, the said
H.M.O.P.No.1860 of 2000 was dismissed. Ex.A11 is the joint
compromise memo,wherein, it is clearly admitted that there is no
marriage between the first defendant and herself. Similarly, she
has also stated that she has no claim for permanent alimony and
she has not claimed any maintenance or any other amount from
the first defendant. This document has been filed by the plaintiff.
Be that as it may, to show that there was a valid marriage
between the first and second defendants, there was no evidence
available on record. Further, even assuming that there was a
marriage as contended by the second defendant, the fact remains
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that such marriage is null and void which is contracted during the
subsistence of the first marriage with the plaintiff. Therefore the
contention of the second defendant that she was the legally wedded
wife of the first defendant, has not been established in the manner
known to law. Further to show that the suit property was given to
them by the first defendant and they have been in the suit property
for more than 15 years and no document whatsoever was filed to
prove the same. Even in the written statement filed by the second
defendant, she has not disputed the revenue records standing in
the name of the plaintiff. The only contention of the second
defendant thereon in the written statement is that the suit
property was purchased by the first defendant out of his own
income and not by the income of the plaintiff. Even if such a stand
is taken as true and proved, that will not tilt the position any
more, for the simple reason that the suit property was purchased
from the own income of the first defendant and it is the self-
acquired property of the first defendant and he had dealt with the
property in his own way by executing a Settlement Deed in favour
of the plaintiff. Therefore once the Settlement Deed is executed and
registered in the manner known to law, the plaintiff become the
absolute owner of the suit property.
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16.The contention of the learned counsel for the appellant
before this Court that the settlement deed has not been established
by examining the attesting witness .This Court is of the view that
there is no need to examine the attesting witness, once the
execution of the document in favour of the plaintiff is not disputed
in the written statement. Therefore, the execution of the document
is admitted by the parties to the suit, the requirement of examining
the attesting witness does not arise at all, as per the proviso to
Section 68 of the Indian Evidence Act. Further, when the executant
himself has admitted the very execution of the document namely,
the Settlement Deed, it is sufficient to prove the execution as
against whom the document is executed, as per Section 70 of the
Indian Evidence Act. The first defendant has admitted the
execution of the Settlement Deed in favour of the plaintiff.
Therefore the question of examining the attesting witness to prove
the document does not arise at all in this case. The document has
been properly proved as required under law.
17.Yet another submission made by the learned counsel for
the appellant is that the original of the Settlement has not been
produced before the Court of Law. Admittedly, only secondary
evidence has been filed by the plaintiff when the document itself
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has been admitted by the executant and has not been objected to
by the other side and when the certified copy has been filed and
hence, mere non-production of the original settlement deed will
not affect the case of the plaintiff.
18.Yet another submission made by the learned counsel for
the appellant is that the plaintiff has not pleaded and proved the
good faith of transaction. It is relevant to note that the question of
proving the good faith arise only when there is a question as to
the good faith of transaction between the parties arise in the suit.
Then the burden always lie on the person in whose favour the
document executed. Only when the beneficiary of the document
was in active confidence and exercising apparent control over the
executant, the question of good faith will arise. Such situation is
not even available in this case, wherein, the executant himself had
admitted the document executed in favour of the plaintiff.
Therefore the question of proving good faith of transaction does not
arise at all. It is relevant to note that normally the husband, who is
having love and affection and fiduciary relationship with
wife,therefore the question of proving good faith does not arise at
all.
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19.As far as the relationship between the plaintiff and first
defendant, as husband and wife, is in existence. The second
defendant has no legal status and her marriage was not
established. She herself had admitted in Ex.A11 that there was no
marriage between herself and the first defendant. Such being the
position, she should be construed only as a stranger to the first
defendant's family and she cannot challenge the document
executed between the spouses ie, the first defendant and the
plaintiff. At any rate, the question of proving good faith in the
transaction does not arise at all in this case.
20.Yet another submission of the learned counsel for the
appellant is that the suit is bad for non-joinder of necessary parties
particularly, the appellant and his brother. It is relevant to note that
absolutely there is no pleading whatsoever in the written
statement to the effect that when they came into possession of the
suit property, who allowed their possession and whether they have
been given the possession of the suit property by the first
defendant and from which year they are in possession. There is no
iota of details whatsoever pleaded in the written statement, except
contending that the suit property has been delivered in their favour
in an family arrangement and no materials whatsoever has been
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produced to prove the same. Further it is relevant to note that the
second defendant claims to be residing with her two sons in the
suit property. It is relevant to note that merely because sons who
are residing with their parents, mother or father, not made as a
party in the suit, it cannot be taken advantage of by the sons
when their parents are already made as parties to the suit. The
very relief itself is sought against the defendants, their agents or
relatives and persons claiming under her. When the sons or
children are residing with parents, who are claiming right under
the parents, this Court is of the view that such persons cannot be
construed as a necessary party to the suit in whose absence no
effective judgement could be delivered by the Court. Therefore,
this Court is of the view that the children who are living with the
father or mother and such parents set up a defense in the property
and children are claiming right under the parents, cannot claim any
independent right, contending that they are the necessary parties
or proper parties to the lis. Such being the position, the
contention of the learned counsel for the appellant that the suit is
bad for non-joinder of necessary parties, cannot be countenanced
in law.
21.The learned counsel for the appellant relied upon the
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judgment of the Honourable Apex Court. Absolutely there is no
quarrel over the proposition of law laid down. The fact remains in
this case is that there was no such question arise at all for
consideration, when the very executant himself has admitted the
execution of the Settlement deed in favour of his wife, the plaintiff
herein. The second defendant, as a third party to such transaction,
cannot attack the document on the ground of active confidence
and now the appellant cannot attack the case when he himself
claiming right through his mother, when the marriage of the
second defendant itself was not established in the Court of Law.
22.Such view of the matter, this Court is of the view that for
all the above discussions, the very appeal itself filed by the
appellant, who being the son of the second defendant, who
remained ex-parte before the Court below, is not maintainable in
the eye of law and leave granted by this Court to file an appeal is
also liable to be rejected. Accordingly, this Court finds no merit in
the appeal and the same is liable to be dismissed.
23.Accordingly, the appeal suit stands dismissed. No costs.
25.04.2023
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Index:Yes/No
Internet:Yes/No
NCC:Yes/No
vsn
To
1.The Additional District and Sessions Judge,
Fast Track Court,
Nagercoil,
Kanyakumari District.
2.The Record Keeper,
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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N.SATHISH KUMAR.,J.
vsn JUDGMENT MADE IN A.S(MD)No.96 of 2023 and C.M.P(MD)No.5743 of 2023 25.04.2023 18/18 https://www.mhc.tn.gov.in/judis