Madras High Court
Constance Rani vs Krishnaraj @ Natarajan (Died) on 12 August, 2020
S.A.No.2114 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
JUDGMENT RESERVED ON : 08.12.2021
JUDGMENT PRONOUNDED ON : 05.01.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A.No.2114 of 2002
Constance Rani
D/o.Muthian ...Appellant/Appellant
Plaintiff
Vs
1.Krishnaraj @ Natarajan (died)
2.Isaac David
S/o.Devakadatcham ...Respondents/Respondents
/Defendants
3.Shanthakumari
W/o.Late. Krishnaraj @ Natarajan
4.K.Babhisha
D/o.Late.Krishnaraj @ Natarajan
5.K.Babin
S/o.Late. Krishnaraj @ Natarajan
6.K.Jabisha
D/o.Late. Krishnaraj @ Natarajan
(R3 to R6 are brought on record as legal heirs
of the deceased 1st respondent vide order dated
12.08.2020)
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S.A.No.2114 of 2002
PRAYER : Second Appeal is filed under Section 100 of
C.P.C, against the judgment and decree dated 28.08.2002
made in A.S.No.127 of 2000 on the file of Subordinate
Judge, Padmanabhapuram, confirming the judgment and
decree dated 19.09.2001 made in O.S.No.442 of 1996 on
the file of the Additional District Munsif,
Padmanabhapuram.
For Appellant : Mr.P.Thiyagarajan
Advocate
For R2 : No appearance
For R3 to R6 : Mr.K.P.Narayanakumar
Advocate
JUDGMENT
The plaintiff is the appellant herein.
2.The plaintiff filed O.S.No.442 of 1996 before the Additional District Munsif Court, Padmanabhapuram for the relief of declaration of title and possession over 'A' schedule property and declaration of title and recovery of possession over 'B' schedule property. The suit was dismissed. As against the same, the plaintiff 2/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 filed A.S.No.127 of 2000 before the Subordinate Court, Padmanabhapuram. The said first appeal was also dismissed. As against which, the present second appeal has been filed.
3.It is the case of the plaintiff that the suit schedule property was originally owned by her father namely Muthaian Nadar who passed away on 27.10.1995 and her mother had also passed away on 04.11.1995 leaving behind the plaintiff as the sole legal heir. The plaintiff further contended that while her father was alive, he did not take care of the plaintiff and her mother and hence, both of them filed O.S.No.164 of 1977 seeking maintenance before the District Munsif Court, Kuzhithurai. In I.A.No.396 of 1977, an order of attachment was passed with regard to the suit schedule property. But later, the suit was dismissed. Thereafter, the plaintiff filed A.S.No.209 of 1978 and it was partly allowed granting maintenance in favour of the plaintiff alone. In order to defraud the maintenance rights, the father of the plaintiff had 3/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 executed Exhibits B1 to B6 sale deeds in favour of the first defendant.
4.The plaintiff further contended that the father of the plaintiff has obtained a release deed fraudulently under Exhibit B7 from the plaintiff and her mother on 10.07.1990 which is an invalid document. Since the sale deeds in favour of the first defendant are void in the eye of law, the release deed executed by the plaintiff and her mother are also invalid. The plaintiff is the sole legal heirs of the deceased Muthaian Nadar. Based on the above said pleadings, the plaintiff claimed declaration and possession over the 'A' schedule property and recovery of possession over 'B' schedule property.
5.The first defendant filed a written statement contending that at the time of death, Muthaian Nadar was not having any property and during his life time, the said Muthaian Nadar has already sold out all the properties in favour of the first defendant under 4/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 various sale deeds. Thereafter, the first defendant has executed a document in favour of the second defendant for an extent of two cents. The defendants further contended that since O.S.No.164 of 1977 was dismissed, the order of interim attachment passed in the said suit has also got terminated. The decree of the First Appellate Court will not revive the order of attachment. The defendants further contended that all the sale deeds have been validly executed and the first defendant is the bonafide purchaser for valuable consideration. The defendants further contended that while he had purchased the property, there was no attachment over the suit schedule property. He further contended that even assuming that there were any rights in favour of the plaintiff and her mother, they have executed a release deed under Exhibit B7 on 10.07.1990 and thereafter, they do not have any right over the suit schedule property. The defendants further contended that the plaintiff has initiated O.S.No.914 of 1990 for the relief of partition and the said suit was also dismissed for default. Since the suit schedule 5/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 properties are separate properties of Muthaian Nadar and he has executed a sale deed in favour of the first defendant during his life time, the plaintiff will not be entitled to make any claim as a legal heir of the deceased Muthaian Nadar.
6.The plaintiff filed a reply statement contending that the sale deeds in favour of the first defendant are void and they have been registered while the order of attachment was in force.
7.The trial court after considering the oral and documentary evidence came to a conclusion that the sale deeds under Exhibits B1, B3 and B5 are valid in the eye of law. The trial Court also came to the conclusion that the pleadings regarding fraud played by the Muthaian Nadar in executing the sale deeds in favour of the first defendant are vague and hence, the same cannot be considered. The trial Court also came to the conclusion that Exhibit A15 clearly indicate that the said Muthaian Nadar did not have any property in the 6/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 State of Kerala, but there is no proof that the survey number included in the document is a fictitious property. When the plaintiff has not established that the survey number included in the sale deed is not a fictitious document, the document cannot be considered to be a void document, but only a voidable document. When it is a voidable document, the sale deeds ought to have been challenged within a period of three years.
8.The trial Court further held that Exhibit B7 is a registered document which has been executed by the plaintiff and her mother in favour of Muthaian Nadar releasing all their rights. The trial Court also relied upon Exhibit B8 which is an order passed in E.P.No.208 of 1990, to arrive at a finding that the entire maintenance amount has been paid and decree has been fully satisfied.
9.The First Appellate Court also relied upon Exhibit B8 to the effect that the Execution Court has arrived at a finding that a sum of Rs.35,000/- has been 7/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 paid by the Muthaian Nadar to the plaintiff and her mother and the maintenance decree has been satisfied. The First Appellate Court has also found that since the maintenance amount has already been satisfied, the said Muthaian Nadar has alienated the suit schedule property and the first defendant has acquired a legally valid title. With the above findings, the First Appellate Court dismissed the appeal filed by the plaintiff. As against the concurrent findings, the plaintiff has filed the present second appeal.
10.The Second appeal has been admitted on the following substantial questions of law:
(1)when the order of attachment over the suit property effected in O.S.No.164 of 1977 was in force, whether the sale deed executed pending the attachment are valid?
(2)whether the sale deeds obtained by the defendants give title to them when there is no effective registration as contemplated by Sections 17 & 28 of the Indian Registration Act?
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11.On 06.12.2021, the learned counsel for the appellant sought permission to raise two other additional substantial questions of law and time was granted to the respondent to submit his reply for the additional substantial question of law.
The Additional Substantial Questions of law are as follows:
“(i)Whether the Courts below are right in accepting the Exhibit B7, release deed dated 10.07.1990, to dismiss the appellant's suit for declaration of title and recovery of possession, when there is a statutory prohibition under Section 6(dd) of Transfer of Property Act, to transfer future maintenance, in whatsoever manner arising secured or determined?
(ii)Whether the Courts below are right in dismissing the suit in its entirety, when admittedly the 1st defendant/1st respondent herein is the brother's son of appellant's father Muthaiyan Nadar and having full knowledge about the earlier suit for maintenance and the decree for maintenance dated 28.08.1981 made in A.S.No.209 of 1998 on the file of Sub Court, Kuzhithurai in 9/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 favour of the plaintiff/appellant herein and as such she is legally entitled to enforce the said maintenance decree against the transferee under Section 39 of Transfer of Property Act and Section 28 of Hindu Adoptions and Maintenance Act, 1956?”
12.The learned counsel for the appellant contended that the maintenance decree was passed as against the father of the plaintiff namely Muthaian Nadar in A.S.No.209 of 1998 on 28.08.1981 under Exhibit A9. In view of the said maintenance decree, a statutory charge is created under Section 39 of Transfer of Property Act, 1882. When a charge has been created over the plaint schedule property, the judgment debtor namely Muthaian Nadar will not be legally entitled to alienate the said property under Exhibits B1, B3 and B5. Hence, the said sale deeds are void in the eye of law. The learned counsel further contended that the suit schedule property is admitted to be a separate property of Muthaian Nadar, when he is alive, neither the plaintiff nor her mother will be entitled to any share 10/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 in the said property. The said Muthaian Nadar had passed away only on 27.10.1995. The plaintiff and her mother have jointly executed a release deed on 10.07.1990 under Exhibit B7 in favour of the Muthaian Nadar as if they are releasing their shares in the suit schedule property. According to the learned counsel for the appellant, the said transfer is not valid in view of Section 6(a) of Transfer of Property Act on the ground that speculative succession. When Muthaian Nadar is alive, the plaintiff and her mother does not have any share in the suit schedule property and hence, the release deed under Exhibit B7 is barred under Section 6(a) of Transfer of Property Act and it is a void document.
13.In view of the above said facts, after the death of Muthaian Nadar, the plaintiff has become the sole legal heir and hence, she is entitled to declare of title, permanent injunction and recovery of possession.
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14.Per contra, the learned counsel for the respondents contended that the plaintiff has not established that Exhibits B1, B3 and B5 sale deeds are void documents. He further contended that Exhibit A15 is the Tahsildar Certificate on the side of the plaintiff to establish that the said Muthaian Nadar did not have any property in the jurisdiction of Parasala registration at the time when exhibits B1, B3 and B5 were executed by the said Muthaian Nadar. According to the respondents, this document will not in any way disclose that the sale deeds executed by Muthaian Nadar are void documents. He further contended that it is not the case of the plaintiff that some fictitious properties were included in the sale deeds. The plaintiff had only contended that the said Muthaian Nadar did not have any properties within the jurisdiction of Parasala registration district. Under such circumstances, the sale deeds executed in favour of the first defendant can only be construed as voidable document and not void document. 12/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002
15.In the present case, the plaintiff has not chosen to challenge the document within a period of limitation. The plea regarding the fact that the sale deeds are void cannot be entertained at this point of time. The learned counsel for the respondents further contended that the said Muthaian Nadar has got a release deed under Exhibit B7 after paying a sum of Rs.35,000/-. The said fact was recorded in the execution proceedings arising out of maintenance decree by the Execution Court. This fact has not been challenged in any of the proceedings by the plaintiff or her mother. When the maintenance decree has already been discharged, the contention of the learned counsel for the appellant that a statutory charge is created under Section 39 of Transfer of Property Act, is not legally sustainable.
16.The learned counsel for the appellant further contended that the first defendant has purchased only item nos.1 to 6 of the suit schedule properties under Exhibits B1, B3 and B5. The first defendant had not 13/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 pleaded anything about suit item nos.7, 8 and 9 in his written statement. When the plaintiff has established her title over item nos. 7, 8 and 9, the Court below have erred in not granting a decree in items nos. 7,8 and 9.
17.I have carefully considered the submissions made on either side.
18.The plaintiff traces her title only as the legal heir of her father Muthaian Nadar. It is an admitted fact that the suit schedule properties are self acquired property of Muthaian Nadar and the plaintiff can claim right over the said property only after the death of Muthaian Nadar. In the present case, the said Muthaian Nadar had sold away the suit schedule properties under Exhibits B1, B3 and B5 during his life time. The plaintiff and her mother have executed a registered release deed in favour of the plaintiff's father under Exhibit B7. Hence, the title of the plaintiff depends upon the validity of Exhibits 14/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 B1, B3, B5 and B7.
19.VALIDITY OF EXHIBITS B1, B3 AND B5 SALE DEEDS:
The father of the plaintiff has executed these three sale deeds on 04.05.1989, 11.09.1989 and 18.09.1989 in favour of the first defendant. These sale deeds are challenged by the plaintiff on the following three grounds:
19(a) The plaintiff's father has suffered a maintenance decree passed in A.S.No.209 of 1998 on 28.08.1981 under Exhibit A9. Since a statutory charge is created under Section 39 of Transfer of Property Act, 1882, the judgment debtor namely Muthaian Nadar will not be legally entitled to alienate the said property.
19.(b). All the three sale deeds have been executed before the Sub Registrar Office, Parasala, Kerala. The vendor Muthaian Nadar has included a fictitious property as 2nd schedule in all the sale deeds. Hence, the sale deeds are void. 15/26
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19.(c). During the pendency of maintenance suit in O.S.No.164 of 1977 and an order of attachment was in force as against the suit schedule property. The said Muthaian Nadar had alienated the property in violation of the order of attachment, hence, the sale deeds are void.
20.The learned counsel for the appellant further contended that the documents under Exhibits B1, B3 and B5 have been executed in Parasala in which one of the properties is said to be located within the jurisdiction of Parasala Sub Registrar Office. According to the learned counsel for the appellant, the said property is a fictitious property and the execution of sale deeds amounts to fraud on registration and it is a void document. Hence, the same will not confer any title upon the first defendant.
21. I have carefully perused the plaint averment with regard to the allegation of fraud. 16/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002
22. The plaintiff had contended that in view of the order of attachment, the Sub Registrar of Karunkal and Palliyadi have refused to receive the sale deed and in order to defraud the plaintiff and her mother, the said Muthaian Nadar had executed the said document at Parasala. Except this allegation, the plaintiff has not pleaded about the fictitious nature of the property or to the effect that the said Muthaian did not own any property within the jurisdiction of Parasala Registration District.
23. During arguments, it has been submitted that the said Muthaian did not own any property in the said Sub Registration District. Fraud on registration and voidness of any document based on fraud on registration, will be attracted only in a case where a fictitious property has been included in the sale deed. But in the present case, there is no such allegation in the plaint. When there is no proper plea with regard to fraud, this Court is not in a position to appreciate the submission made on the side of the learned counsel 17/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 for the appellant with regard to the voidness of the sale deeds under Exhibits B1, B3 and B5.
24.The plaintiff and her mother have instituted O.S.No.164 of 1977 seeking a prayer for maintenance. The said suit was dismissed, but in A.S.No.209 of 1998, the maintenance decree was granted in favour of the plaintiff alone under Exhibit A9, dated 28.08.1981.
25.It is true that a statutory charge is created under Section 39 of Transfer of Property Act, 1882 till the maintenance amount is paid by the father of the plaintiff. A charge is only a security for the payment of amount. A charge does not even amount to a mortgage. It is settled position of law that even a mortgaged property can be alienated subject to the mortgage. Hence, a statutory charge over a property does not prevent the owner of the property from alienating the same in favour of the third parties. The only right of the decree holder under the maintenance decree is to recover the maintenance amount from and out of the 18/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 charged property even if it had passed into the hands of the third parties. Hence, the alienation effected by the father of the plaintiff cannot be said to be legally invalid. in view of the statutory charge, but the sale deeds are only subject to the satisfaction of the maintenance decree.
26.It is true that there was an order of interim attachment in I.A.No.396 of 1977 pending O.S.No.164 of 1977. The said suit was dismissed on 31.03.1978. Under Order 38 Rule 9 C.P.C, an order of attachment gets withdrawn automatically when the suit is dismissed. There are no pleadings or evidence on the side of the plaintiff to the effect that the attachment was extended beyond the dismissal of the suit. Thereafter, the plaintiff is the said suit has filed A.S.No.209 of 1978 and a maintenance decree has been passed in favour of the plaintiff on 28.08.1981. The maintenance decree by the First Appellate Court will not automatically revive an order of interim attachment made by the trial Court. The sale deeds under Exhibits B1, B3 and B5 have 19/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 been effected by the plaintiff's father only in the year 1989. Hence, the contention of the plaintiff that the sale deeds have been effected while the order of attachment was in force is not factually correct.
27.VALIDITY OF EXHIBIT B7:
27(i). The learned counsel for the appellants contended that Exhibit B7 release deed has been executed without any schedule of property. While the father Muthaian Nadar is alive, neither the plaintiff nor the defendants have got any right over the suit schedule property. Hence, any release deed is hit by Section 6(a) of Transfer of Property Act under the provisions of Speculative Succession. He further contended that even assuming that Exhibit B7 was executed for the purpose of releasing the maintenance amount, the same is also hit by Section 6(dd) of Transfer of Property Act.
28.I have perused Exhibit B7 release deed. The said document refers to the maintenance decree granted 20/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 in A.S.No.209 of 1978 and for discharging the said decree, an amount of Rs.35,000/- has been paid by the said Muthaian Nadar. In view of the said amount, the plaintiff and her mother have released their rights over all the properties of Muthaian Nadar. Hence, it is clear that the release deed has been executed only for the discharge of past maintenance amount due to the plaintiff. As per the decree in A.S.No.209 of 1978, the plaintiff is entitled to maintenance till her marriage. At the time of execution of Exhibit B7, the plaintiff was 29 years old. The plaintiff has nowhere pleaded that she was unmarried on the date of execution of Exhibit B7. Hence, it is evident that Exhibit B7 release deed was executed by the plaintiff only towards arrears of past maintenance which is not barred under Section 6(dd) of Transfer of Property Act, 1882.
29.That apart, the defendants have filed Exhibit B8 which is an order passed in E.P.No.208 of 1990 in O.S.No.167 of 1977. The plaintiff has initiated execution proceedings for nonpayment of the maintenance 21/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 amount and for arrest of her father Muthaian Nadar. In the said proceedings, Exhibit B7 release deed was marked by the plaintiff's father and he pleaded satisfaction of the maintenance decree. The plaintiff herein did not appear and contend that Exhibit B7 is not a valid document. Based upon the defence of the plaintiff's father, the Executing Court dismissed the execution petition after recording a finding that the maintenance decree has been fully satisfied by the judgment debtor. The plaintiff herein has neither chosen to reopen the execution proceedings nor filed any appeal as against the said order dated 12.06.1995. Hence, the plaintiff cannot be heard to contend that Exhibit B7 release deed has been obtained by her father by playing fraud upon her and her mother.
30.Since the Court has arrived at a finding that the sale deeds under Exhibits B1, B3 and B5 have not been executed fraudulently by Muthaian Nadar in favour of the first defendant and the release deed executed by the plaintiff and her mother in favour of Muthaian 22/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 Nadar is also a legally valid document, the plaintiff is not entitled to a decree for declaration of title and not entitled to any relief as claimed by her in the suit.
31.The substantial questions of law are answered as follows:
(i)there was no order of attachment operating when Exhibits B1, B3 and B5 were executed by the father of the plaintiff. Hence, the sale deeds are valid in the eye of law.
(ii)since there is no pleadings with regard to fictitious nature of the property under Exhibits B1, B3 and B5, the said sale deeds cannot be held to be void on the ground of fraud on registration.
(iii)Exhibit B7 has been executed only in consideration of the past maintenance of the plaintiff in favour of her father. Hence, the statutory prohibition under Section 6(dd) of Transfer of Property Act is not applicable.
(iv) statutory charge under Section 39 of Transfer of Property Act and under Section 28 of Hindu Adoption 23/26 https://www.mhc.tn.gov.in/judis S.A.No.2114 of 2002 and Maintenance Act, 1956 only empower the decree holder to recover the maintenance amount from and out of the said property even if it had passed into the hands of the third parties. A charge decree does not prevent any alienation of the charged property.
32.Hence, the sale deeds under Exhibits B1, B3 and B5 will not be void due to statutory charge. That part, the plaintiff has executed a release deed under Exhibit B7 towards full satisfaction of the maintenance decree and the same has been confirmed under Exhibit B8. Hence, the Courts below were right in dismissing the suit in entirety.
33.In view of the above said discussions, all the substantial questions of law are answered as against the appellant. The second appeal stands dismissed. No costs.
05.01.2022.
Index : Yes / No
Internet : Yes / No
msa
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S.A.No.2114 of 2002
To
1.The Subordinate Judge,
Padmanabhapuram
2.The Additional District Munsif
Padmanabhapuram
3.The Section Officer
V.R.Section
Madurai Bench of Madras High Court
Madurai
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S.A.No.2114 of 2002
R.VIJAYAKUMAR,J.
msa
Pre-delivery Judgment made in
S.A.No.2114 of 2002
05.01.2022
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