Madras High Court
M.Vigie vs Dr.T.M.Mathivanan(Died) on 18 February, 2020
Author: S.M.Subramaniam
Bench: S.M.Subramaniam
A.S.No.138 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 18.02.2020
CORAM:
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
A.S.No.138 of 2012
and
M.P.No.1 of 2012
M.Vigie .. Petitioner
Vs.
1.Dr.T.M.Mathivanan(Died)
2.T.N.Vanmathi
3.Dr.T.M.Valarmathi
(2nd and 3rd respondents are represented
by their Power of Attorney
Agent Dr.T.M.Mathivanan,
the First Respondent herein)
4.Mr.T.M.Mani Mudaliar
5.Mrs.Vijayakumari
6.T.M.Vidhya
(R5 & R6 brought on record as Lrs of the
deceased 1st respondent vide order of this
Court dated 02.03.2018 made
in CMP.No.3305/2018
in A.S.No.138/2012) .. Respondents
PRAYER: Appeal filed under Section 96 of the Code of Civil
Procedure, against the Decree and Judgement dated 23.09.2011 in
1/12
http://www.judis.nic.in
A.S.No.138 of 2012
O.S.No.258 of 2007 on the file of the Court of Additional District
Judge(Fast Track Court No.II), Poonamallee.
For Petitioner : Mr.R.Arun Kumar
For Respondents : R1 – Died – Steps taken
Mr.D.Ravichandar
[For R2, R3, R5 & R6]
No appearance[For R4]
JUDGMENT
The appeal suit on hand is directed against the judgment and decree dated 23.09.2011 passed in O.S.No.258 of 2007.
2. The first defendant is the appellant and the respondents are the plaintiff.
3. The suit was instituted for partition of the suit property and allotment of 3/4th share to the plaintiff and for declaration that the sale deed dated 03.01.2006 executed by the 2nd defendant in favour of the 1st defendant is null and void. In respect of the plaintiffs, 3/4th share in the suit property and not binding on the plaintiff, directing 2/12 http://www.judis.nic.in A.S.No.138 of 2012 the defendants to pay the costs of the suit.
4. The facts in nutshell as narrated in the plaint are that the suit schedule property was originally owned and possessed by Mrs.Thulasi Bai Ammal and she purchased the suit schedule property vide Registered deed of sale dated 27.06.1965 and registered as Document No.948/1965 in the office of Sub Registrar, Poonamallee and marked as Ex.A1. The suit property was absolutely owned and possessed by Mrs.Thulasi Bai Ammal. It is a self- acquired property of Mrs.Thulasi Bai Ammal and all other revenue records including patta stood in the name of the said Mrs.Thulasi Bai Ammal. The plaintiffs are the sons of the said Mrs.Thulasi Bai Ammal. Admittedly, Mrs.Thulasi Bai Ammal died on 22.11.2000, leaving behind the following persons as the only legal heirs:
1. Mr.T.M.Mani Mudaliar - Husband
2. Dr.T.M.Mathivanan - Son
3. Mr.T.M.Vanmathi - Son
4. Dr.T.M.Valarmathi - Son 3/12 http://www.judis.nic.in A.S.No.138 of 2012
5. After the demise of Mrs.Thulasi Bai Ammal, the plaintiffs and their father Mr.T.Mani Mudaliar, each became entitled to 1/4 th share in respect of the suit property. The plaintiffs and the said Mr.T.M.Mani Mudaliar are all jointly entitled to the suit property.
While so, the defendant Mr.T.Mani Mudaliar, husband of the deceased Mrs.Thulasi Bai Ammal, sold the property in favour of the 1st defendant namely Mr.M.Vigie through a sale deed dated 03.01.2006, Ex.A6. The same document was marked as Ex.B2 by the defendants in the suit. The grounds raised by the plaintiffs before the trial Court is that the 2nd defendant Mr.T.Mani Mudaliar has no absolute right to execute sale in favour of the 1st defendant as the property was a self-acquired property and possessed by late Mrs.Thulasi Bai Ammal and after her demise, her three children as well as her husband are having equal share in the property.
6. The 2nd defendant disputed the contentions raised by the plaintiff by denying the allegations. The main ground raised by the 2nd defendant before the trial Court was that the deceased Mrs.Thulasi Bai Ammal had no income of her own and the property was purchased from and out of the earnings of the 2 nd defendant 4/12 http://www.judis.nic.in A.S.No.138 of 2012 and therefore, he has got an absolute right in respect of the suit property. In other words, it is contended that the 2 nd defendant invested his earnings and purchased the property in the name of his wife late Mrs.Thulasi Bai Ammal and therefore, he has got every right to sell the property and accordingly, he executed a sale deed in favour of the 1st defendant in Ex.B2 document.
7. The trial Court framed the issues as to whether the sale of suit property on 03.01.2006 by the 2nd defendant to the 1st defendant is a valid sale; whether the plaintiff proves that the suit property is the self-acquired property of their mother and they are entitled to 1/4th share each; whether the Court fee paid is right and to what the relief the parties are entitled.
8. The 1st plaintiff was examined as P.W.1 and the Ex.A1 to Ex.A8 were marked as documents. On the side of the defendants, the 1st defendant was examined as D.W.1 and Ex.B1 to B7 were marked as documents. With reference to the 1st issue regarding the validity of the suit property on 03.01.2006 by the 2nd defendant in favour of the 1st defendant, the trial Court considered the rights of 5/12 http://www.judis.nic.in A.S.No.138 of 2012 the parties and in respect of the title acquired by the original owner Mrs.Thulasi Bai Ammal. It is admitted by the parties that Ex.A1 document, which is a sale deed stands in the name of Mrs.Thulasi Bai Ammal and she purchased the same on 27.06.1965. Therefrom the deceased Mrs.Thulasi Bai Ammal became the absolute owner of the property and she possessed the same till her date of death i.e., on 22.11.2000. The trial Court found that the 2nd defendant, who is none other than the husband of the deceased Mrs.Thulasi Bai Ammal, could not able to establish that the property was purchased from and out of his own income. The property was purchased in the year 1965 and the suit was instituted in the year 2007, after a lapse of about 42 years. Under those circumstances, the trial Court found that the said Mrs.Thulasi Bai Ammal became the absolute owner of the property and on her death, her three children as well as the 2 nd defendant / her husband are equally entitled for the property. In other words, they are having equal rights in respect of the suit mentioned property. When the 2nd defendant is unable to prove that he had invested his earnings for the purchase of the suit mentioned property through sale deed dated 27.06.1965, Ex.A1 document, then the trial Court had arrived a conclusion that the sale deed is 6/12 http://www.judis.nic.in A.S.No.138 of 2012 null and void as against the plaintiffs. The findings in this regard arrived by the trial Court in Paragraph 9 of the judgment, which is extracted hereunder:
“9/ nkw;go th/rh/1. gp/rh/ 1 rhl;rpa';fs; kw;Wk; ,th; jug;gpy; FwpaPL bra;ag;gl;l Mtz';fspd; thapyhf tHf;Fr; brhj;J Mjpapy; uhjhgha; vd;gtUf;Fr; brhe;jkhf ,Ue;J. mjid thjpfSila jhahh; Jsrpgha; mk;khs; fpuak; bgw;wpUf;fpd;whh; vd;gJ bjhpatUfpwJ/ ,e;j brhj;J Jsrpgha; mk;khSf;F rPjdkhf bfhLf;fg;gl;l brhj;J vd;gjhf th/rh/1 bjhptpj;jpUf;fpd;whh;/ gpujpthjpfs; jug;gpy; tHf;Fiu"h; Jsrpgha; mk;khs; FLk;gj;jiytp vd;W fhl;lg;gl;Ls;sJ/ mtUf;F jdpg;gl;l tUkhdk; ,y;iy/ vdnt. ,e;j brhj;J mtuJ RatUkhdj;jpy; th';fg;gl;ljy;y vd;W vLj;Jiuj;jnghjpYk;. tHf;Fr; brhj;J mtUila fzth; tUkhdj;jpypUe;J th';fg;gl;lJ vd;nwh nkw;go 2k; gpujpthjpahd kzp jd; kidtpf;fhf ,e;j brhj;ij th';fp itj;jpUg;gjhfnth me;j fpua Mtzj;jpypUe;J bjhpatutpy;iy/ uhjhgha; vd;gthplkpUe;J thjpfspd; jhahh; Jsrpgha; fpuak; bgw;w tptuk; kl;Lnk bjhpa tUfpwJ/ jpUkzj;jpd;nghJ rPjdk; vJt[k; juhjjhy; 5 7/12 http://www.judis.nic.in A.S.No.138 of 2012 Mz;LfSf;Fg;gpd; tHf;Fr; brhj;J ,tUf;F rPjdkhf bfhLj;j brhj;J vd;W th/rh/1 ePjpkd;w rhl;rpaj;jpy; bjhptpj;jpUf;fpwhh;/ ,jid gpujpthjpfs; jug;gpy; rhpahf kWj;Jiuf;fg;gltpyi ; y/ vdnt. nkw;go Mtz';fspypUe;Jk;
th/rh/1?d; ePjpkd;w rhl;rpaj;jpypUe;Jk; tHf;Fr; brhj;J ,tUila jhahh; Jsrpgha; mk;khspd; Rauh$;$pj brhj;J vd;nw ,e;j ePjpkd;wk; jPh;khdpf;fpwJ/ nkYk; Jsrpgha; mk;khs; 22/11/2000?y; ,we;Jtpl;lhh; vd;gJ mtuJ ,wg;g[r;rhd;wpjHpypUe;J bjhpatUfpwJ/ ,we;Jnghd Jsrpgha; mk;khspd; thhpRfshf 2k; gpujpthjp kzp. 1 Kjy; 3 thjpfs; mtuJ kfd;fs; thhpR rhd;wpjHpy; fhl;lg;gl;Ls;sJ/ th/rh/M4/I ghprPyid bra;jjpy; ,we;j Jsrpgha; mk;khSf;F ,th;fs; ehy;tUk; thhpRjhuh;fs; vd;gJ nkw;go Mtzj;jpd; K:yk; epU:gpf;fg;gl;oUg;gjdhy; Jsrpgha; mk;khSf;F chpika[s;s jhth brhj;jpy; nkw;go 3 thjpfSf;Fk;. 2K; gpujpthjpf;Fk; jyh 1-4 ghfk; fpilf;fj;jf;fJ vd ,e;j ePjpkd;wk; jPh;khdpj;J ,e;j vGtpdhtpw;F ,t;thwhf tpilfhz;fpwJ/”
9. With reference to issue No.2, the trial Court considered the 8/12 http://www.judis.nic.in A.S.No.138 of 2012 fact that the 1st defendant is running a School and an literate person. Therefore, knowing the fact that the other legal heirs of Mrs.Thulasi Bai Ammal are also entitled for equal share in the suit property, he purchased the property.
10. This Court is of the considered opinion that there is no perversity as such in respect of the findings arrived. The trial Court had rightly considered the admitted facts that Mrs.Thulasi Bai Ammal purchased the property on 27.06.1965 Ex.A1 document and she died on 22.11.2000, leaving behind the 2 nd defendant / her husband as well as the three plaintiffs, who all are the children of the deceased Mrs.Thulasi Bai Ammal and the 2nd defendant. Under these circumstances, the suit property was sold by the 2nd defendant in favour of the 1st defendant in Ex.A6 document and the same document was marked as Ex.B2 on the side of the defendant. The trial Court arrived a conclusion that the 2nd defendant had not proved that the property was purchased in the name of his wife, from and out of his earnings in the year 1965 and accordingly, arrived a conclusion that the plaintiffs are equally entitled for a share in the suit property and held that the sale deed is null and 9/12 http://www.judis.nic.in A.S.No.138 of 2012 void.
11. This being the factum, this Court do not find any perversity or infirmity on the findings of the trial Court as the trial Court rightly held that the plaintiffs as well as the 2 nd defendant are entitled for equal shares in the property and accordingly, this Court has no hesitation in arriving a conclusion that the judgment and decree dated 23.09.2011 passed in O.S.No.258/2007 is in consonance with the documents as well as the evidences placed before the Court and accordingly, the judgment and decree dated 23.09.2011 in O.S.No.258/2007 is confirmed.
12. Consequently, the appeal suit in A.S.No.138 of 2012 stands dismissed. However, there shall be no order as to costs. Connected miscellaneous petition is closed.
18.02.2020 Kak Index:Yes Speaking order 10/12 http://www.judis.nic.in A.S.No.138 of 2012 To The Additional District Judge (Fast Track Court No.II), Poonamallee.
11/12 http://www.judis.nic.in A.S.No.138 of 2012 S.M.SUBRAMANIAM, J.
Kak A.S.No.138 of 2012 18.02.2020 12/12 http://www.judis.nic.in