Madras High Court
Gopal Raja (Died) vs Selvaraj on 19 July, 2019
Author: R.Pongiappan
Bench: R.Pongiappan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 27.06.2019
Judgment Pronounced on : 19.07.2019
CORAM:
THE HONOURABLE MR.JUSTICE R.PONGIAPPAN
S.A.No.943 of 2000
1.Gopal Raja (Died) .. Appellant /2nd Respondent /
legal heir of the sole Plaintiff
2.Minor Amutha
3.Minor Vanitha
(Minors are represented by the father
and guardian the 1st appellant)
4.G.Saraswathi .. Appellants
[A4 bring on record as legal heir of the first appellant as per order,
dated 10.09.2018 in CMP(MD).No.1449 of 2018 in S.A.943 of 2000 by
CVKJ]
Vs.
Selvaraj .. Respondent / Appellant/
Defendant
PRAYER: Appeal filed under Section 100 of Civil Procedure Code,
against the Judgment and Decree dated 15.02.2000, passed in
A.S.No.194 of 1998, by the learned Sub Judge, Kovilpatti, reversing
the Judgment and Decree, dated 26.09.1996, passed in O.S.No.169 of
1995, by the learned District Munsif, Kovilpatti.
http://www.judis.nic.in
2
For Appellants : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.N.GA.Nagaraj
For Respondent : Mr.M.P.Senthil
JUDGMENT
This appeal is directed against the judgment and decree, dated 15.02.2000 in A.S.No.194 of 1998 on the file of the Sub Court, Kovilpatti. Before the trial Court, the deceased first appellant's mother, namely, Jeyalakshmi filed a suit in O.S.No.169 of 1995 and seeking the relief of declaration declaring the plaintiff is the absolute owner of the half portion of the suit schedule property, and for the relief of injunction restraining the defendant from interfering with the peaceful possession and enjoyment of the suit schedule property by the plaintiff.
2. The learned District Munsif, Kovilpatti, by judgment and decree, dated 26.09.1996 allowed the suit and granted a decree as prayed for by the plaintiff. Aggrieved over the said findings, the respondent, Selvaraj, filed an appeal in A.S.No.194 of 1998 on the file of the Subordinate Judge, Kovilpatti.
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3. After elaborate enquiry, by judgment and decree, dated 15.02.2000, the learned Subordinate Judge, Kovilpatti, came to the conclusion that the declaration and injunction cannot be granted as against the co-owner, and, thereby the relief sought for by the plaintiff is against the principle of law. Ultimately, he allowed the appeal and dismissed the suit. Feeling aggrieved over the same, the legal representatives of the deceased Jeyalakshmi is before this Court with this present second appeal.
4. For the sake of convenience, the parties are referred to as, as described before the Court below.
5. The averments made in the plaint, in brief, are as follows:
In earlier, the suit properties and other properties are belonged to one Arasamuthu Chettiar. On 13.03.1957, the said Arasamuthu Chettiar gifted the suit property to his wife Sankarammal and to his son Shanmugavelu. On 13.12.1976, the said Shanmugavelu executed a release deed and relinquished his right in favour of his mother Sankarammal. Thereafter, the said Sankarammal has become the absolute owner of the suit schedule property. On 01.12.1977, the said Sankarammal sold out the suit property in favour of one Kasthuri Devi through a registered sale deed. In turn, the plaintiff purchased the same from the said Kasthuri Devi, vide a registered sale deed, http://www.judis.nic.in 4 dated 30.03.1994. Among the property, which was gifted by the Arasamuthu Chettiar, the defendant purchased a portion of the property, through which he is entitled 48 sq.ft. vacant site, a Well and also a right to take bath near the well. After purchasing the said property, during the tenure of Kasthuri Devi, the defendant tried to close the Well, and, since the said Kasthuri Devi raised an objection, the defendant has not closed the Well in entirety. Hence, the suit.
6. The averments made in the written statement filed by the defendant are as follows:
According to the defendant, the suit property and other properties are, in earlier, owned by one Linkammal, W/o.Muthukaruppan Chettiar. She is having two sons, namely, M.Arasamuthu Chettiar and V.M.Ganapathy Chettiar. With respect to the suit schedule properties, on 24.07.1956, they entered into a partition, in which the 4th schedule property was kept open as a common one for enjoying the same by all the three persons. Thereafter, on 30.03.1965, after the demise of Linkammal, there was a partition effected between the legal heirs of the deceased Linkammal. On 08.01.1968, the deceased Arasamuthu Chettiar sold out his share including the undivided suit property., ie., 4th schedule of the suit property, in favour of his brother V.M.Ganapathy Chettiar. Ever since from the date of purchase of the said properties, the same http://www.judis.nic.in 5 is under the possession and enjoyment of the said Ganapathy Chettiar. Only thereafter, on 13.12.1993, the said V.M.Ganapathy Chettiar and his sons executed a sale deed in favour of the defendant. Ever since from the date of purchase, the defendant is in possession and enjoyment of the said property. In the meantime, on 05.08.1967 and 13.02.1968, the deceased Arasamuthu Chettiar sold out his property in favour of one Veerappa Pillai and one Seeniammal, with respect to the said sale, a suit has been filed in O.S.No.99 of 1968 for partition and the same was dismissed. The said matter went up to second appeal. Ultimately, the second appeal was dismissed on 11.02.1976. Hence, the suit filed by the plaintiff is barred by lis pendens and res judicata. Hence, the plaintiff has no right to the title with respect to the suit schedule property.
7. Based on the above pleadings, the learned District Munsif, Kovilpatti, framed necessary issues and tried the suit.
8. Before the trial Court, during the trial, on behalf of the plaintiff two witnesses have been examined as PW.1 and PW.2 and 17 documents were marked as Ex.A1 to Ex.A17. On the side of the defendant, the defendant examined himself as DW1. Further he examined one more witness as DW.2 and marked 25 documents as E x.B1 to Ex.B25. Apart from those documents, the report and plan filed http://www.judis.nic.in 6 by the advocate commissioner was marked as Ex.C1 and Ex.C2.
9. Having considered all the materials placed before him, the learned District Munsif, Kovilpatti, granted a decree as prayed for by the plaintiff.
10. In the appeal, the said findings was reversed. Feeling aggrieved over the same, the appellant is before this Court with the present second appeal.
11. In the said circumstances, at the time of admitting the Second Appeal, this Court has formulated the following Substantial Question of Law, for consideration:-
“Though the plaintiff had asked for a declaratory right in respect of half of the suit property, on facts established, based on Ex.A-1(copy of which is Ex.B-7), have not the courts below committed an error of law in not moulding the relief prayed for by the plaintiff to the extent of an undivided 1/3 share in the suit property, which admittedly belongs to the plaintiff's vendor's vendor as of right?” http://www.judis.nic.in 7
12. Substantial Question of Law:
The specific case of the plaintiff is that, in earlier, vide Ex.A1 (partition deed), dated 24.07.1956, the suit schedule property belonged to one Arasamuthu Chettiar. Being the owner of the suit property, vide Ex.A2 (gift deed), dated 13.03.1957, the said Arasamuthu Chettiar gifted the same in favour of his wife Sankarammal and Shanmugavelu. In the meantime, through Ex.A3 (release deed), dated 13.12.1976, the said Shanmugavelu has given up his share in favour of his mother Sankarammal. In turn, the said Sankarammal vide, sale deed-Ex.A4, dated 01.12.1977 sold out the property in favour of one Kasthuri Devi. From the said Kasthuri Devi, the plaintiff Jeyalakshmi purchased the suit property through sale deed Ex.A5, dated 30.03.1994. While at the time of giving evidence as PW.1, the husband of the plaintiff specifically stated that a common pathway, Well and a bathroom are situated in the 4th schedule of the suit property.
13. On the other hand, it is a specific case of the defendant that the defendant has purchased the suit property from one Ganapathy Chettiar vide sale deed Ex.B5, dated 13.12.1993. Further, there was a correction deed in respect to Ex.B5 was executed, which was marked as Ex.B6, dated 29.12.1995. According to the defendant, the suit property has come into the hands of Ganapathy Chettiar, through the http://www.judis.nic.in 8 partition deed Ex.B1, dated 24.07.1956. It is a further case of the defendant that the said partition deed is entered between the Ganapathy Chettiar, Marimuthu Chettiar and Linkammal.
14. The learned counsel appearing for the appellants would content that in the said partition deed, the suit schedule property was earmarked as 4th schedule property. It was mentioned that the 4 th schedule property is a common property for the enjoyment of the persons, who entered into partition. Only, after knowing the said recitals, the successor of Arasamuthu Chettiar sold the undivided share in favour of the plaintiff. Further, from the date of sale onwards, the suit property is in possession and enjoyment of the plaintiff. So, the prayer sought for by the plaintiff is reasonable, but the First Appellate Court, without analysing the said aspect, set aside the relief granted by the trial court in favour of the plaintiff. Further, it is the case of the plaintiff that the plaintiff perfected the title by way of adverse possession.
15. On the other hand, the learned counsel appearing for the respondent/defendant would contend that even after knowing the fact that the suit 4th schedule property is a common property, executing the sale deed in favour of the plaintiff by his vendor, without getting the consent from the other co-owners cannot be valid and thereby, the http://www.judis.nic.in 9 sale deed stands in the name of the plaintiff did not confer any right as stated by the plaintiff. Thereby, the findings arrived at by the First Appellate Court in favour of the defendant is legally valid and prayed to dismiss this second appeal.
16. Upon considering the arguments advanced by either side, it is admitted that the suit property is the ancestral property of Arasamuthu Chettiar, Ganapathy Chettiar and their mother Linkammal. On 24.07.1956, all the three persons entered into partition, in which the 4th schedule property was kept as a common one for enjoying by all the three persons. Before the trial Court, the copy of the partition deed was marked as Ex.A1 on the side plaintiff and the same was marked as Ex.B1 on the side of the defendant.
17. Now, on go through the 4th schedule of the partition deed, it appears that the suit property is a common property to Arasamuthu Chettiar, Ganapathy Chettiar and Linkammal. Only on the strength of the said partition deed, the said Arasamuthu Chettiar executed a gift deed in favour of his wife and his son. At this juncture, it is relevant to see the judgment of our Hon'ble Apex Court, reported in 1987 (3) SCC 294, in the case of Thamma Venkata Subbamma vs. Thamma Rattamma and others, wherein in paragraphs 12 and 13 it has been held as follows:
http://www.judis.nic.in 10 “12.There is a long catena of decisions holding that a gift by a coparcener of his undivided interest in the coparcenary property is void. It is not necessary to refer to all these decisions. Instead, we may refer to the following statement of law in Mayne's Hindu Law, eleventh edn., Article 382:
It is now equally well settled in all the Provinces that a gift or devise by a coparcener in a Mitakshara family of his undivided interest is wholly invalid..... A coparcener cannot make a gift of his undivided interest in the family property, movable or immovable, either to a stranger or to a relative except for purposes warranted by special texts.
13. We may also refer to a passage from Mulla's Hindu Law, fifteenth edn., Article 258, which is as follows:
Gift of undivided interest: (1) According to the Mitakshara law as applied in all the States, no coparcener can dispose of his undivided interest in coparcenary property by gift. Such transaction being void altogether there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He may, however, make a gift of his interest with the consent of the other coparceners.”
18. Further, to support his case, the learned counsel appearing for the respondent/defendant relied on the judgment of this Court made in the case of Kanna Gounder and another vs. Arjuna http://www.judis.nic.in 11 Gounder, reported in 2003 (1) MLJ 145, wherein in paragraph No. 13, it has been held as follows::
“13.The prohibition against making of gifts by coparcener of his undivided interest in the coparcenary continues even after the enactment of Hindu Succession Act and he can make such gifts either to another coparcener or to a stranger only with the prior consent of all other coparcener. In the present case, even though Muthulakshmiammal inherited the interest of her deceased husband in the family property, she continued to be a member of the family and the property including that of her's was held by the family. As a female heir, having inherited property under Section 6 of the Hindu Succession Act, Muthulakshmiammal cannot be treated as having ceased to be a member of the family without her volition. The renunciation of her interest in the coparcenary property is only in favour of one of the coparceners, namely, the plaintiffs, and it does not enure for the benefit of all other coparceners.
Factually there is no consent for the above renunciation given by the other coparcener, namely, the defendant herein. Though Muthulakshmiammal can dispose of her undivided interest in the coparcenary property by a Will or sale for a valuable consideration, she can not make a gift of such interest without the prior consent of all other coparceners. In such circumstances, the gifts made in Exs.A2 and A.3 settlement deeds in favour of the plaintiffs by http://www.judis.nic.in 12 Muthulakshmiammal are not legally valid on account of lack of prior consent of other coparcener and the plaintiffs do not get any right under the gifts. The plaintniffs are entitled to only 1/3rd share in the suit items. The substantial questions of law are answered accordingly.”
19. In yet another judgment of this Court, reported in 2009 (7) MLJ 145, in the case of Ramulu Ammal vs. Ramachandra Reddy and others, in paragraph No.14, it has been held as follows:.
“14. Nowhere in that precedent, it is found spelt out that by implied consent such alienations could be made and furthermore, in this case, absolutely, there is no iota or shred, shard or miniscule, infinitesimal or molecular, scintilla or pint- sized of evidence to demonstrate that the said Venkatarama Reddy, father of Markandeya Reddy (D1) ever expressly or impliedly consented for such settlement.”
20. It is a settled position that alienation of the coparcenary property, without getting consent from the other owners, cannot valid under law. Now, applying the said principle with the case in our hand, after made gift in favour of his wife and son on 13.03.1957, Arasamuthu Chettiar entered into a partition deed on 30.03.1965, vide Ex.B7, in which, he partitioned the family property for the second http://www.judis.nic.in 13 time. After referring Ex.A1, particularly, in respect to the suit property, it is to be noted that after made gift on 13.03.1957, the deceased Arasamuthu Chettiar lost his every right with respect to the 4th schedule property. But after eight years from the date on which he made gift, again, he entered into the partition with his brother and sister, vide Ex.B7. So, without having any right and title over the suit property, the deceased Arasamuthu Chettiar entered into partition for the second time, is wholly invalid. Only based on the second partition, the property was sold in favour of Ganapathy Chettiar. In turn, the same was sold in favour of the defendant.
21. The entire circumstances, which will clearly reveal that the said Arasamuthu Chettiar has entered into second partition, without having any right. So, based on the said documents, the property sold in favour of Ganapathy Chettiar is wholly untenable. However, since the case is filed by the appellants for the relief of injunction and declaration, they only have to prove their case.
22. As already discussed, through Ex.A2, the right of Arasamuthu Chettiar had gone and the same are vested with his wife and his sons. Subsequently, by various alienations, now, the property is in the hands of the plaintiff.
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23. As of now, the plaintiff is one of the co-owner along with the successor of Ganapathy Chettiar and his sister, Magamayee Ammal. So filing a suit for the relief of injunction against the co-owner is not at all maintainable. Further, in respect to the relief of declaration, the plaintiff may file a suit for partition, but instead of filing suit for partition, the plaintiff filed a suit for the relief of declaration to the undivided portion, which cannot be maintainable. Hence, the First Appellate Court has pronounced a well considered judgment that the plaintiff being the co-owner cannot ask the relief of declaration and injunction.
24. In respect to the claim made by the defendant by way of adverse possession, the trial Court is clear in its judgment, by referring evidence given by P.W.2, that the vendor of the defendant- Ganapathy Chettiar has gone out of village for a long time. The said evidence alone sufficient to disprove the claim made by the defendant.
25. Hence, it is the case that PW.2 admitted in his evidence that the said Kasthuri Devi purchased the property from Arasamuthu Chettiar and she was in possession till she made a sale in favour of the plaintiff. Eventhough the said documents relied on by the plaintiff are in his favour, the sale made by Arasamuthu Chettiar, without http://www.judis.nic.in 15 getting consent from the other co-owners, in respect to the 4 th schedule of the suit property alone, is not valid in the eye of law. Further, instead of filing the suit for partition, the plaintiff has filed the suit for declaration, specifically, for the undivided 1/3 share of the 4th schedule of the suit property. In this regard, the First Appellate Court is very clear that the plaintiff is not entitled the relief. Thereby, the Substantial Question of Law is answered affirmative in favour of the defendant.
25. For the foregoing reasons as stated above, this second appeal stands dismissed. The Judgment and Decree, dated 15.02.2000, passed in A.S.No.194 of 1998, by the learned Sub Judge, Kovilpatti, reversing the Judgment and Decree, dated 26.09.1996, passed in O.S.No.169 of 1995, by the learned District Munsif, Kovilpatti is confirmed. No Costs.
19.07.2019 Index : Yes/No Internet: Yes/No PJL To
1. The Sub Judge, Kovilpatti.
2. The District Munsif, Kovilpatti.
3. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai. http://www.judis.nic.in 16 R.PONGIAPPAN, J.
PJL Pre-delivery Judgment made in S.A.No.943 of 2000 19.07.2019 http://www.judis.nic.in