Madras High Court
Angayee vs Chinnammal on 21 August, 2018
Author: T.Ravindran
Bench: T.Ravindran
IN THE HIGH COURT OF JUDICATURE AT MADRAS RESERVED ON : 20.07.2018 PRONOUNCED ON : 21.08.2018 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN S.A.No.560 of 2005 Angayee ... Appellant Vs. 1.Chinnammal 2.Sakthivel ... Respondents Prayer :- Second Appeal has been filed under Section 100 of CPC against the Judgement and Decree dated 07.12.2004 passed in A.S.No.134 of 1999 on the file of the Additional District Judge, Fast Track Court No.1, Salem, confirming the Judgment and Decree dated 30.04.1999 passed in O.S.No.704 of 1993 on the file of the II Additional District Munsif Court, Salem. For Appellant : Mrs.R.T.Sundari For Respondent : Mr.R.Nalliappan No.1 JUDGMENT
In this second appeal, challenge is made to the Judgement and Decree dated 07.12.2004 passed in A.S.No.134 of 1999 on the file of the Additional District Judge, Fast Track Court No.1, Salem, confirming the Judgment and Decree dated 30.04.1999 passed in O.S.No.704 of 1993 on the file of the II Additional District Munsif Court, Salem.
2.The second appeal has been admitted on the following substantial questions of law:
(1). When the suit property is undivided and unspecified portion of larger extent of 14202 sq.ft. whether Sale Deed in respect of specific portion of suit property under Ex.A1 is maintainable?
(2). When the suit property is ancestral joint family property as per partition deed Ex.B8, whether the appellant has got half share and her mother Angammal has got half share in the suit property?
(3).In the light of the observation of the 1st Appellate Court that the alleged trespass by the defendants in the suit property has not been strictly proved, whether it is established that the plaintiff has cause of action to file this suit?
3.Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4.Suffice to state that the plaintiff claims title to the suit property on the basis of the sale deed dated 29.05.1987 said to have been executed by Angammal, the mother of the first defendant and it is further stated by the plaintiff that the defendants unlawfully trespassed into the suit property and refused to handover the possession of the suit property to the plaintiff, despite the issuance of the notice calling upon them to deliver the possession of the suit property and accordingly, it is stated that the plaintiff has been necessitated to lay the suit for the reliefs of declaration and possession.
5.Per contra, it is the case of the defendants that the claim of the plaintiff that she had purchased the suit property from Angammal by way of a sale deed dated 29.05.1987 is false and according to the defendants, Angammal, the mother of the first defendant obtained the suit property by virtue of the partition deed dated 28.10.1981 and since then, she was in the possession and enjoyment of the same and after her demise, the first defendant, as her only legal heir, succeeded to the suit property and it is stated by the defendants that the first defendant's mother being an illiterate lady, the plaintiff, in the guise of assisting her in getting loan, seems to have created certain documents and the plaintiff has never been in the possession and enjoyment of the suit property at any point of time. On the other hand, it is only the defendants, who had been in the possession and enjoyment of the suit property and the plea of trespass putforth by the plaintiff is not true and accordingly, it is stated that the plaintiff has no cause of action to institute the suit and the suit is liable to be dismissed.
6.On the basis of the materials placed on record, it is found that the Courts below had accepted the plaintiff's case and granted the necessary reliefs in favour of the plaintiff. Impugning the same, the present second appeal has been laid.
7.It is not in dispute that the suit property originally belonged to Angammal, the mother of the first defendant. The partition deed dated 28.10.1981 has been marked as Ex.B8. Now, it is the case of the plaintiff that Angammal had alienated the suit property as a vacant site in her favour on 29.05.1987 and the abovesaid sale deed has come to be marked as Ex.A1. As rightly determined by the trial Court, when it is found that even as per the case of the defendants that Angammal had derived the suit property by way of a partition deed, it is evident that the property derived by Angammal under Ex.B8 partition deed could only be treated as her separate and independent property and accordingly, it is found that she would be competent to alienate the same to whomsoever she desires. Accordingly, it has to be seen whether the sale deed dated 29.05.1987 executed by Angammal in favour of the plaintiff is true, valid and binding on the defendants. It is not in dispute that Ex.A1 sale deed is only relating to the suit property. The defendants would only contend that the plaintiff taking advantage of the illiteracy of Angammal and on the pretext that she could arrange loan for her, appear to have create certain documents and therefore, it is contended that Ex.A1 sale deed is not a valid document. Accordingly, it is found that even the defendants seem to have accepted the execution of the sale deed by Angammal in favour of the plaintiff in respect of the suit property. However, they would only appear to have taken a defence that the abovesaid sale could have been obtained by the plaintiff from Angammal on the pretext that the same is only with reference to the obtainment of loan. However, as rightly found by the Courts below, when the first defendant examined as DW1, during the course of her evidence, has stated that even Angammal during her life time had informed about the execution of the sale deed in favour of the plaintiff and accordingly, when it is found that the sale deed in favour of the plaintiff has been effected only to the knowledge of Angammal and that apart, when it is the case of the first defendant that the same had also been apprised to her by Angammal and if really, the plaintiff had taken the abovesaid sale deed by misrepresentation and in the guise of the arrangement of any loan in favour of Angammal, at least, either Angammal or the first defendant, on coming to know of the same, would have taken appropriate legal action against the plaintiff in challenging the validity of the sale deed. However, it is found that no such action seems to have been taken either by Angammal or the first defendant, despite they having knowledge about the sale deed, having been executed in favour of the plaintiff in respect of the suit property.
8.From the evidence of the plaintiff examined as PW1, it is found that as per her version, the sale deed had been executed by Angammal in her favour only for a valid consideration. The plaintiff has also examined one Vaiyapuri as PW2, who is one of the attestors of the sale deed and he has also deposed that the sale deed Ex.A1 is a true document executed by Angammal for a valid consideration. Nothing has been elicited from the mouth of PWs1 & 2 during the course of their cross examination by the defendants to discredit their testimony with reference to the abvoesaid aspects.
9. It is contended by the defendants that the house in the suit property had not been put up by the plaintiff as claimed and on the other hand, the same had been in existence for several years and accordingly, it is stated that the claim of the plaintiff that she is enjoying the suit property by paying tax in respect of the house put up on the suit property as such cannot be accepted. However, as rightly found by the Courts below neither in Ex.A1 nor in the partition deed dated 28.10.1981 marked as Ex.B8, there is a reference about the house put up in the suit property. Rightly it is found by the first appellate Court by way of Ex.B8 partition deed that the A schedule property described therein measuring an extent of 14202 sq. ft including the suit property had been allotted to Angammal, Periyanna Gounder and Chinnairusan, and found that on the basis of the materials placed on record, pursuant to Ex.B8 partition deed, there had been an oral partition amongst the abovesaid three persons and it is further seen that the abovesaid three persons sold some properties allotted to them under Ex.B8 and even thereafter, they have orally partitioned the remaining vacant land amongst themselves. Chinnairusan, who had been examined as DW2, has admitted to the same and in the copy of the partition deed dated 13.07.1992 marked as Ex.A7, which document had come to be executed between Periyanna Gounder and DW2, it is found that there is a reference as to the sale of the property by Angammal and accordingly, it is found that as determined by the Courts below, the same is only a reference about the sale of suit property in favour of the plaintiff under Ex.A1. When it is found that Angammal owns only the suit property by way of Ex.B8 partition deed and when it is not the case of the defendants that Angammal had other properties also other than the suit property and when from the materials placed on record that the property allotted to Angammal and others by Ex.B8 had been subsequently partitioned as abovenoted and as deposed by DW2, it is found that inasmuch as Angammal had alienated the suit property in favour of the plaintiff under Ex.A1, accordingly, it is seen that there is also reference about the same in Ex.A7 partition deed, accordingly, it is found that as abovenoted, as per the evidence of DW1, Angammal herself had informed about the said sale deed to DW1 and despite the knowledge of the sale having been executed in favour of the plaintiff neither Angammal nor DW1, the first defendant had taken any action against the plaintiff with reference to the same. It is thus noted that inasmuch as Angammal had voluntarily effected the sale of the suit property in favour of the plaintiff and not as putforth by the defendants, particularly, the sale deed Ex.A1 having not come into existence by any misrepresentation or fraud committed by the plaintiff, accordingly, it is found that both Angammal as well as DW1 had not evinced interest to challenge the same in the manner known to law. In the light of the above facts, the Courts below are found to be justified in upholding the validity of Ex.A1 sale deed and I do not find any reason to interfere with the same.
10.As regards the plea of cause of action projected by the plaintiff that the defendants had unlawfully trespassed into the suit property and as they had refused to deliver the possession of the same, despite notice, the suit for possession has come to be laid, when it is found that it is only the plaintiff, who is the title holder of the suit property, she having purchased the same from the lawful owner i.e. Angammal and when the suit property is the absolute property of Angammal, she is found to have alienated the same to the plaintiff under Ex.A1, the defendants though having found to be in the possession of the suit property, even assuming for the sake of arguments that the plaintiff is unable to establish the plea of trespass projected by her, that by itself would not in any manner disentitle the plaintiff to seek the reliefs sought for. It is not the case of the defendants that they had prescribed title to the suit property by way of adverse possession. Further, even assuming for the sake of arguments that such a plea is entitled to be taken by the defendants, when the materials placed on record by the defendants do not advance their abovesaid plea, it is found that the defendants' possession can only to be termed as unlawful and unauthorised possession and the plaintiff's being found to be the lawful title holder of the suit property, accordingly, it is found that the Courts below had rightly upheld the plaintiff's case and granted the reliefs as prayed for. In such view of the matter, the documents of possession projected by the respective parties do not assume much significance and when it is found that the suit has been laid by the plaintiff based on the title and when it is noted that the plaintiff has established her claim of title to the suit property and on the other hand, the defendants have failed to establish their claim of title to the suit property and when the defendants' possession and enjoyment of the suit property is found to be not lawful, accordingly, it is seen that the plaintiff is entitled to obtain the reliefs prayed for.
11.In the light of the above discussions, when it is found that the suit property had been derived by Angammal by way of the partition deed marked as Ex.B8 and when the other sharers had not put forth any challenge to the sale effected by Angammal in respect of the suit property by way of Ex.A1 and on the other hand, they had recognised the same and endeavoured to proceed to further partition the remaining property available, after the demise of Angammal and when it is further seen that the property derived by Angammal under Ex.B8 partition deed assume the character of her independent property and thereby, she having the full right and entitlement to the same and dispose of the same as she desires and accordingly, it is noted that the plaintiff having purchased the property from the lawful owner under Ex.A1, it is only the plaintiff, who has title to the suit property. When the defendants' possession and enjoyment of the suit property has not been established to be lawful the plaintiff being title holder is entitled to seek the recovery of possession of the suit property from the defendants and thus, it is found that the plaintiff has made out the cause of action to institute the suit. The substantial questions of law formulated in the second appeal are accordingly, answered in favour of the plaintiff against the defendants.
For the reasons aforestated, the second appeal fails and is, accordingly, dismissed with costs. Consequently, connected miscellaneous petition, if any, is closed.
Index : Yes / No Internet : Yes / No sms 21.08.2018 To 1. The Additional District Judge, Fast Track Court No.1, Salem. 2. The II Additional District Munsif Court, Salem. 3. The Section Officer, V.R.Section, High Court, Madras. T.RAVINDRAN, J. sms Pre-Delivery Judgment made in S.A.No.560 of 2005 21.08.2018 Pre-delivery Judgment made in S.A.No.560 of 2005 To The Hon'ble Mr.Justice T.RAVINDRAN Most respectfully submitted sms P.A.to the Hon'ble Judges