Madras High Court
Chellan Alias Velayutham vs Sasidharan on 2 December, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 02/12/2008
Coram
The HONOURABLE MR.JUSTICE A.SELVAM
S.A.Nos.1247 to 1249 of 1994
and
S.A(MD)No.224 of 2006 and CMP(MD)No.1664/06
Chellan alias Velayutham .. Appellant/2nd Defendant
in SA.No.1247/94
.. Appellant/Defendant
in SA.No.1248/94
.. Appellant/Plaintiff
in SA.No.1249/94
1.Jesintha Mary (died) .. Appellant/Plaintiff
in SA.No.224/06
2.Chellan @ Velayuthan
3.Amutha
4.Amirtharaj
5.Anandraj
(Appellants 2 to 5, LRs of 1st
appellant brought on record by
an order dated 13.03.08) .. Appellants in
SA.No.224/06
Vs.
1.Sasidharan .. Respondent/plaintiff in
SA.No.1247/94
2.Murugappan .. Respondent/1st defendant in
SA.No.1247/94
Murugappan .. Respondent/Plaintiff in
SA.No.1248/94
Murugappan .. Respondent/Defendant in
SA.No.1249/94
1.Sasidharan
2.Murugan .. Respondents/Defendants in
SA.No.224/06
Second Appeals filed under Section 100 of C.P.C, against the Judgments and
decrees dated 29.03.1994 and 07.02.2005 passed in Appeal Suit Nos.52, 31, 67 of
1992 and 47 of 2007 by the Subordinate Court, Kuzhithurai confirming the
Judgments and decrees dated 12.03.1992 and 25.04.2003 passed in Original Suit
Nos.293 of 1983, 272 of 1986, 477 of 1991 and 328 of 1997 by the Principal
District Munsif Court, Kuzhithurai.
!For Appellant ... Mr.K.Sreekumaran Nair
(all the appeals)
^For R - 1 ... Mrs.J.Anandhavalli
(SA.No.1247/94)
For R - 2 ... Mr.P.Ananthakrishnan Nair
(SA.No.1247/94)
For Respondent ... Mr.P.Ananthakrishnan Nair
(SA.Nos.1248 & 1249/94)
For Respondents ... Mrs.J.Anandhavalli
(SA.No.224/06)
:COMMON JUDGMENT
These second appeals have been preferred against the concurrent Judgments passed in Original Suit Nos.293 of 1983, 272 of 1986, 477 of 1991 and 328 of 1997 by the Principal District Munsif Court, Kuzhithurai and in Appeal Suit Nos.52 of 1992, 31 of 1992, 67 of 1992 and 47 of 2003 by the Sub Court, Kuzhithurai.
2. Second Appeal No.1247 of 1994 The first respondent herein as plaintiff has instituted Original Suit No.293 of 1983 on the file of the trial Court for the relief of redemption of the suit property, wherein the present appellant has been shown as second defendant.
ii) It is averred in the plaint that the suit property is originally belonged to Swami Pillai S/o Kumarasamy Pillai. On 04.10.1973 he executed a mortgage deed in favour of Lakshmi Pillai and the said Lakshmi Pillai has enjoyed the suit property as a mortgagee. On 17.05.1980, the said Lakshmi Pillai has made over the mortgage in favour of the first defendant. In the suit property there is one building. The second defendant is enjoying the suit property as the tenant of the first defendant. On 04.02.1981 the original owner of the suit property by name Swami Pillai has sold the same to one Renjitham and the said Renjitham has purchased the suit property for her minor daughter by name Simtha. On 01.03.1982, the said Renjitham has sold the suit property in favour of the plaintiff. Since the mortgagee has enjoyed the suit property for more than ten years, the plaintiff is entitled to get the relief under Debt Relief Act, 40 of 1979. Under the said circumstances, the present suit has been instituted for the relief sought for in the plaint.
(iii) In the written statement filed on the side of the first defendant, it is stated that the plaintiff is not entitled to get the relief under Debt Relief Act and therefore, the present suit deserves dismissal.
(iv) It is stated in the written statement filed by the second defendant that it is false to say that the plaintiff has purchased the suit property under a registered sale deed dated 01.03.1982. The sale deed dated 01.03.1982 has been created fraudulently and the same is void and there is no merit in the suit and the same deserves dismissal.
(v) In the additional written statement filed on the side of the second defendant, it is stated that the second defendant has purchased the suit property from its rightful owner and in pursuance of the sale deed which stands in the name of the second defendant, he has instituted Original Suit No.477 of 1991 and therefore, the plaintiff is not entitled to get the relief sought for in the plaint.
(vi) In the reply statement filed on the side of the plaintiff, the averments made in the written statement filed by the second defendant have been denied and further it is stated that in GWOP.No.130 of 1989 the mother of the minor by name Simtha has been appointed as her guardian. Therefore, the sale deed alleged to have been executed by the father of minor in favour of the second defendant is not valid.
3. Second Appeal No.1248 of 1994:
The respondent herein as plaintiff has instituted Original Suit No.272 of 1986 on the file of the trial Court for the relief of recovery of possession, wherein the present appellant has been shown as sole defendant.
(ii) It is averred in the plaint that the suit property is originally belonged to one Swami Pillai. On 04.10.1973 he executed a mortgage deed in favour of Lakshmi Pillai. On 17.05.1980, the said Lakshmi Pillai has made over the mortgage in favour of the plaintiff and since then the plaintiff is in possession and enjoyment of the same. As per made over dated 17.05.1980, the plaintiff is entitled to enjoy the suit property. But the defendant has trespassed into the same. Under the said circumstances, the present suit has been filed for the relief sought for in the plaint.
(iii) It is stated in the written statement filed on the side of the defendant that the plaintiff is not entitled to get the relief in pursuance of the alleged made over dated 17.05.1980 and the defendant has purchased the suit property from the father of the minor by name Simtha and there is no merit in the suit and the same deserves dismissal.
(iv) In the reply statement filed on the side of the plaintiff, all the averments made in the written statement filed by the defendant are specifically denied.
4. Second Appeal No.1249 of 1994:
The appellant herein as plaintiff has instituted Original Suit No.477 of 1991 on the file of the trial Court for the relief of extinguishment of mortgage, wherein the present respondent has been shown as sole defendant.
(ii) The averments made in the plaint are that the suit property is originally belonged to one Swami Pillai and he executed a mortgage deed dated 04.10.1973 in favour of Lakshmi Pillai and the said Lakshmi Pillai has made over the mortgage in favour of the defendant. But the defendant has not been given possession of the suit property. The plaintiff has purchased suit property from the father of the minor by name Simtha and therefore, the plaintiff is entitled to get the relief sought for in the plaint. Under the said circumstances, the present suit has been instituted.
(iii) It is stated in the written statement filed by the defendant that the defendant has obtained made over the mortgage dated 04.10.1973. It is false to say that the plaintiff has purchased the suit property from the father of the minor by name Sankaran. There is no merit in the suit and the same deserves dismissal.
(iv) On the side of the plaintiff, a reply statement has been filed, wherein all the averments made in the written statement are specifically denied.
5. Second Appeal No.224 of 2006:
The deceased appellant as plaintiff has instituted Original Suit No.328 of 1997 on the file of the trial Court for the reliefs of declaration, possession and permanent injunction, wherein the present respondents have been shown as defendants.
(ii) It is averred in the plaint that the suit property is originally belonged to one Velayudhan Nadar and he executed a sale deed in favour of the plaintiff on 17.11.1982 in respect of the suit property and since then the plaintiff is in possession and enjoyment of the same. The defendants are not having any manner of right, interest over the suit property and now they are making arrangements to disturb the peaceful possession and enjoyment of the plaintiff by way of denying her title. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the plaint.
(iii) In the written statement filed by the first defendant, it is stated that the alleged original owner of the suit property has had no right over the same. The members of Nalamparavilagathu Veedu have effected partition and in the said partition 32 cents have been allotted to Raman Pillai. The said Raman Pillai has executed a sale deed in favour of Perumal Nadar in respect of 32 cents. After the death of Perumal Nadar, his son Velayudhan Nadar has sold 10 cents to one Muthayyan Nadar and he sold 22 cents to one Swami Pillai. The said Swami Pillai has sold 22 cents in favour of Simtha with a direction to redeem mortgage. The mother of Simtha has sold 22 cents to the first defendant on 01.03.1982 and there is no suit property on ground and therefore, the present suit deserves dismissal.
(iv) In the written statement filed on the side of the second defendant, it is prayed to dismiss the suit.
6. On the basis of the rival pleadings raised on either side, the trial Court has framed necessary issues in all the suits and after contemplating both the oral and documentary evidence adduced on either side, has decreed Original Suit Nos.293 of 1983 and 272 of 1986 and dismissed Original Suit Nos.477 of 1991 and 328 of 1997. Against the common Judgment passed in Original Suit Nos.293 of 1983, 272 of 1986 and 477 of 1991, Appeal Suit Nos.52 of 1992, 31 of 1992 and 67 of 1992 have been filed and against the Judgment and decree passed in Original Suit No.328 of 1997, Appeal Suit No.47 of 2003 has been filed. The first appellate Court after hearing both sides and upon reappraising all the evidence available on record, has dismissed all the appeals. Against the concurrent Judgments passed in Original Suit Nos.293 of 1983, 272 of 1986, 477 of 1991 and 328 of 1997 and in Appeal Suit Nos.52 of 1992, 31 of 1992, 67 of 1992 and 47 of 2003, the present second appeals have been filed.
7. In Second Appeal Nos.1247 to 1249 of 1994, the following common question of law has been formulated:
"When father is the natural guardian of the minor daughter, Simtha, whether sale deed Ex.A4, executed by the mother in favour of Sasidharan is valid?"
8. In Second Appeal No.224 of 2006, the following substantial questions of law have been formulated for consideration:
"i) Whether the finding of the Courts below that plaintiff did not get title under Ex.A1 is correct when there is a clear finding in para 22 of Ex.A7 Judgment to which the defendants were also parties that plaintiff got title to 10 cents of land under Ex.A1?
ii) Whether the finding of the lower Court that Velayuthan Nadar, the predecessor of plaintiff had title for 32 cents and not 42 cents is correct?
iii) Are not the defendants bound by the finding in Exs.A7 and A8 Judgments that the plaintiff was entitled to claim 10 cents of land which was conveyed by Velayuthan Nadar to the plaintiff herein under Ex.A1?"
9. Since common questions of law and facts are involved in all the second appeals, common Judgment is pronounced.
10. Before considering the rival submissions made by either counsel, it would be more useful to perorate the following admitted facts.
11. It is an admitted fact that the suit property involved in Original Suit Nos.293 of 1983, 272 of 1986 and 477 of 1991 is originally belonged to one Velayuthan Nadar and he sold the suit property to one Swami Pillai and the said Swami Pillai has executed an usufructuary mortgage deed in favour of one Lakshmi Pillai on 04.10.1973 and the said Lakshmi Pillai has made over the mortgage deed dated 04.10.1973 in favour of Murugappan, who is none other than the plaintiff found in Original suit No.272 of 1986. The said Swami Pillai has sold the suit property to one minor by name Simtha under a registered sale deed dated 04.02.1981 and her mother sold the suit property on 01.03.1982 to one Sasidharan who is none other than the plaintiff found in Original Suit No.293 of 1983. The plaintiff found in Original Suit No.477 of 1991 has purchased the suit property under a registered sale deed dated 06.08.1991.
12. The sale deed which stands in the name of Swami Pillai has been marked as Ex.A1 and the mortgage deed executed by Lakshmi Pillai in favour of Murugappan has been marked as Ex.A2. The sale deed which stands in the name of minor Simtha has been marked as Ex.A3 and the sale deed which stands in the name of the plaintiff found in Original Suit No.293 of 1983 has been marked as Ex.A4. The sale deed which stands in the name of the plaintiff found in Original Suit No.477 of 1991 has been marked as Ex.B7.
13. The trial Court has conducted joint trial in Original Suit Nos.293 of 1983, 272 of 1986 and 477 of 1991 and the evidence taken in Original suit No.293 of 1983 has also been treated as evidence in Original Suit Nos.272 of 1986 and 477 of 1991. As adverted to earlier, the trial Court has decreed Original Suit Nos.293 of 1983 and 272 of 1986 and dismissed Original Suit No.477 of 1991. Against the common Judgment and decree passed in the said Suits, Appeal Suit Nos.57, 31 and 67 of 1992 have been preferred on the file of the first appellate court and the first appellate Court has dismissed all the appeals, whereby and whereunder confirmed the Judgment and decree passed in Original Suit Nos.293 of 1983, 272 of 1986 and 477 of 1991.
14. In Second Appeal Nos.1247 to 1249 of 1994, Exs.A3, A4, A13 and B7 are very much essential.
15. The learned counsel appearing for the appellant in Second Appeal Nos.1247 to 1249 of 1994 has repeatedly contended that the suit property has been purchased in the name of minor Simtha under Ex.A3 on 04.02.1981 and the father of minor by name Sankaran is very much alive, but the mother of the minor by name Renjitham has executed Ex.A4 on 01.03.1982 in favour of the plaintiff found in Original Suit No.293 of 1983 and as per Section 6 of the Hindu Minority Guardianship Act, 1956, the mother cannot act as natural guardian, while father is alive and therefore as per Section 8 of the said act, only father is entitled to sell the property of minor and that too with the permission of Court and further, as per section 11 of the said Act, any transaction made by defacto guardian is void and under the said legal circumstances, Ex.A4 is a void document under which, the plaintiff found in Original Suit No.293 of 1983 has not derived any valid title to the suit property and the second defendant found in Original suit No.293 of 1983 has purchased the suit property from the father of the minor viz., Sankaran under Ex.B7 on 06.08.1991 and the same has given valid title to the second defendant, but the trial Court without considering the correct legal position, has erroneously decreed Original Suit No.293 of 1983 and dismissed Original Suit No.477 of 1991 and the first appellate Court has also erroneously dismissed the appeals filed by the appellant in all the second appeals and therefore, the concurrent Judgments passed by the Courts below are liable to be set aside and the suit filed by the appellant in Original Suit No.477 of 1991 is liable to be decreed as prayed for.
16. In support of his contention, he has drawn the attention of the Court to the decision reported in AIR 2002 SC 215 (Madhegowda (D) by LRs Vs. Ankegowda (D) by LRs and others), wherein the Honourable Apex Court has held that a sale made by a defacto guardian is in contravention of Section 11 of the Hindu Minority and Guardianship Act, (32 of 1956) and the same is per se invalid.
17. In order to repudiate the argument advanced by the learned counsel appearing for the appellant, the learned counsel appearing for the first respondent in Second Appeal No.1247 of 1994 has also equally contended that the suit property has been purchased in the name of minor under Ex.A3 by her mother by name Renjitham and the said Renjitham has sold the suit property in favour of the first respondent/plaintiff in Original Suit No.293 of 1983 under Ex.A4 and on 31.01.1990 the said Renjitham has been appointed as the guardian of the minor as per the order passed in GWOP.No.130 of 1989 and even though the father of the minor by name Sankaran is very much alive, he has not evinced any interest upon the minor and therefore, the mother of the minor has acted as natural guardian. Under the said circumstances, Ex.A4, the sale deed which stands in the name of the first respondent/plaintiff found in Original Suit No.293 of 1983 is nothing but voidable and the same has not been questioned by the minor and therefore, the entire argument advanced by the learned counsel appearing for the appellant is not correct and the same is liable to be rejected.
18. As stated earlier, the only substantial question of law framed in all these second appeals is as to whether Ex.A4, sale deed which stands in the name of the plaintiff found in Original Suit No.293 of 1983 is valid in law, since the same has been executed by the mother of the minor viz., Simtha, while her father is alive.
19. Section 6 of the Hindu Minority and Guardianship Act, 1956 reads as follows:
"6. Natural guardians of a Hindu minor:- The natural guardians of a Hindu minor, in respect of the minor's person as well as in respect of the minor's property (excluding his or her undivided interest in joint family property) are-
(a) in the case of a boy or an unmarried girl - the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
b) in the case of an illegitimate boy or an illegitimate unmarried girl - the mother, and after her, the father;
(c) in the case of a married girl - the husband;
Provided that no person shall be entitled to act as the natural guardian of a minor under the provisions of this section-
(a) if he has ceased to be a Hindu, or
(b) if he has completely and finally renounced the world becoming a hermit (vanaprasatha) or an ascetic (yati or sanyasi)"
20. Section 8 of the said Act, reads as follows:
"8.Powers of natural guardian.-(1) The natural guardian of a Hindu minor has power, subject to the provisions of this section, to do all acts which are necessary or reasonable and proper for the benefit of the minor or for the realization, protection or benefit of the minor's estate; but the guardian can in no case bind the minor by a personal covenant.
(2) The natural guardian shall not, without the previous permission of the Court,-
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor; or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him.
(4) No Court shall grant permission to the natural guardian to do any of the acts mentioned in sub-section (2) except in case of necessity or for an evident advantage to the minor.
(5) The Guardians and Wards Act, 1890, shall apply to and in respect of an application for obtaining the permission of the Court under sub-section (2) in all respects as if it were an application for obtaining the permission of the Court under section 29 of that Act, and in particular-
(a)Proceedings in connection with the application shall be deemed to be proceedings under that Act within the meaning of section 4-A thereof;
(b) the Court shall observe the procedure and have the powers specified in sub-sections (2), (3) and (4) of section 31 of that Act; and
(c) an appeal shall lie from an order of the Court refusing permission to the natural guardian to do any of the acts mentioned in sub-section (2) of this section to the Court to which appeals ordinarily lie from the decisions of that Court.
(6) In this section, "Court" means the City Civil Court or a District Court or a Court empowered under section 4-A of the Guardians and Wards Act, 1890, within the local limits of whose jurisdiction the immovable property in respect of which the application is made is situate, and where the immovable property is situate within the jurisdiction of more than one such Court, means the Court within the local limits of whose jurisdiction any portion of the property is situate."
21. Section 11 of the Said Act says that after the commencement of this Act, no person shall be entitled to dispose of, or deal with, the property of a Hindu minor merely on the ground of his or her being the de facto guardian of the minor.
22. From the conjoint reading of the said sections, the Court can easily discern that natural guardian of a minor is his or her father and only after him, his or her mother can act as natural guardian and natural guardian is empowered to deal with the property of minor with the previous permission of the concerned Court. If no such permission is obtained, the transaction made by natural guardian is only voidable at the instance of minor or any other person claiming under him or her and further, if any transaction is made by a defacto guardian is per se invalid, or in other words it is void.
23. With these legal backdrops, the Court has to perpend the validity of Exs.A4 and B7. Ex.A4, as stated earlier, is the sale deed which stands in the name of the plaintiff found in Original Suit No.293 of 1983 executed by the mother of minor Simtha on 01.03.1982. Ex.B7 is the sale deed dated 06.08.1991 which stands in the name of the second defendant executed by the father of the minor viz., Sankaran. It is an admitted fact that the mother of the minor by name Renjitham has purchased the suit property from Swami Pillai for minor under Ex.A3 on 04.02.1981. It is also equally an admitted fact that the mother of the minor has filed GWOP.No.130 of 1989 so as to declare her as the guardian of minor and the same has been allowed and the order passed in GWOP.No.130 of 1989 has been marked as Ex.A13. Since the sale under Ex.A3 has been purchased by the mother of the minor and since she has been appointed as guardian in GWOP.No.130 of 1989, the Court can very well infer that from inception, the father of the minor by name Sankaran has not evinced any interest upon the minor. At this juncture, a nice legal question arises as to whether during the life time of a father of a minor, his or her mother can act as a natural guardian.
24. In order to clinch the present issue, the Court has to rely upon the following decisions:
(a) In AIR 1971 SC 315 (V 58 C 75) (Jijabai Vithalrao Gajre Vs. Pathankhan), the Honourable Apex Court has held as follows:
"The position in the Hindu Law as well as under Section 6 of the Act is that normally when the father is alive he is the natural guardian and it is only after him that the mother becomes the natural guardian. Where the father was alive but had fallen out with the mother of the minor daughter and was living separately for several years without taking any interest in the affairs of the minor who was in the keeping and care of the mother it was held that in the peculiar circumstances, the father should be treated as if non-existent and therefore the mother could be considered as the natural guardian of the minor's person as well as property and had power to bind the minor by granting lease of her land in proper course of management of the property."
(b) In 81 LW 406 (Mayilswami Chettiar V. Kaliammal and others), this Court has held that the position of the defacto guardian under Hindu law is well established. Even where there is a father for the minors alive, the mothers can, acting as the defacto guardian of the minors, alienate their property for necessity. It is amply clear that even when there is a legal guardian in existence, any alienation of minor's property by a defacto guardian would be valid if it is for necessity.
25. From the conjoint reading of the decisions referred to supra, it is made clear that if father has not shown any interest in the affairs of minor, he can be treated as non existent and mother of minor can be considered as natural guardian of minor's person as well as property and she is also having power to bind the minor concerned and further it is made clear that the mother even though defacto guardian, can alienate minor's property for necessity and the same is valid.
26. In the instant second appeals, the plaintiff found in Original Suit No.293 of 1983 has purchased the suit property under Ex.A4 on 01.03.1982. On 31.01.1990 the mother of minor by name Renjitham has been appointed as guardian of the minor under Ex.A13. On 06.08.1991 the second defendant found in Original Suit No.293 of 1983 has purchased the suit property under Ex.B7. Since the father of the minor has not evinced any interest in the affairs of the minor and since the suit property has been purchased under Ex.A3 on 04.02.1981 by the mother of the minor, as per the dictum of the Supreme Court, the Court can unflinchingly come to a conclusion that in the instant case, the mother of the minor could very well act as natural guardian of the minor and her father can be treated as non existent. Since the mother of the minor can be treated as natural guardian, the sale deed executed by her in favour of the plaintiff found in Original Suit No.293 of 1983, which has been marked as Ex.A4 is legally valid. The second defendant found in Original Suit No.293 of 1983 has obtained Ex.B7 on 06.08.1991 from the father of the minor and that too after appointment of mother of the minor as guardian to her under Ex.A13. Therefore, it goes without saying that Ex.B7 is nothing but a void document and the first defendant has not derived anything from Ex.B7.
27. In the light of the foregoing enunciation of both the factual and legal premise, it is very clear that the argument advanced by the learned counsel appearing for the appellant in all the appeals is not having effective force and whereas, the argument advanced by the learned counsel appearing for the first respondent in Second appeal No.1247 of 1994 is really having subsisting force and further the common substantial question of law framed in all these appeals is decided against the appellant and altogether second appeal Nos.1247 to 1249 of 1994 are liable to be dismissed.
28. Now the Court has to expound the point involves in Second Appeal No.224 of 2006. The only point which involves in Second appeal No.224 of 2006 is as to whether the deceased appellant has derived title to the suit property by virtue of the sale deed dated 17.11.1982, which has been marked as Ex.A1.
29. The contention of the plaintiff is that the suit property is originally belonged to Velayudhan Nadar and he sold the same on 17.11.1982 in favour of the plaintiff and since then the plaintiff is in peaceful possession and enjoyment of the same and the defendants found in Original Suit No.328 of 1997 are not having any semblance of right over the suit property. Under the said circumstances, Original Suit No.328 of 1997 has been filed for the reliefs of declaration of title, possession and perpetual injunction.
30. The first defendant viz., Sasidharan has filed a detailed written statement, wherein he has specifically stated that the alleged predecessor in title of the plaintiff has had no interest to sell the suit property to the plaintiff on 17.11.1982 under Ex.A.1.
31. The Courts below have concurrently found that the vendor of the plaintiff by name Velayudhan Nadar has had no interest to convey the alleged suit property in favour of the plaintiff under Ex.A1.
32. The father of the said Velayudhan Nadar by name Perumal Nadar has purchased 32 cents in the suit Survey number from one Raman Pillai under Ex.B7 and its Tamil translation has been marked as Ex.B8. After the demise of Perumal Nadar, his son Velayudhan Nadar has sold 10 cents to one Muthayyan Nadar and the concerned sale deed has been marked as Ex.B9 and its Tamil translation has been marked as Ex.B10. After execution of Ex.B9, the said Velayudhan Nadar has had title only in respect of the remaining extent of 22 cents and he sold the same in favour of one Swami Pillai S/o Kumarasamy Pillai under Ex.B11 and its Tamil translation has been marked as Ex.B12. Therefore, after execution of Ex.B9 and 11, the alleged vendor of the plaintiff by name Velayudhan Nadar has had no interest in the suit survey number. But he executed a sale deed in favour of the plaintiff on 17.11.1982 which has been marked as Ex.A1.
33. The learned counsel appearing for the appellant/plaintiff has strenuously contended that the plaintiff has purchased 10 cents under Ex.A1 on 17.11.1982 and in Original Suit No.293 of 1983, an Advocate Commissioner has been appointed and he inspected the present suit property and its surrounding properties and he filed his reports and plans, which have been marked as Exs.C1 to C4 and in Ex.C4 it has been clearly mentioned that in suit survey number an extent of 44.500 cents is available and therefore, the Court can easily come to a conclusion that Ex.A1 is a valid document and the appellant/plaintiff has derived valid title to the suit property.
34. The learned counsel appearing for the first respondent has also equally contended that the first respondent has purchased the property found in Original Suit No.293 of 1983 under Ex.B15 wherein it has been erroneously mentioned as 22 cents and the erstwhile minor after attaining majority, has executed a release deed in favour of the first respondent on 17.06.1998, wherein it has been clearly mentioned as 32 cents and therefore, the first respondent is alone having title to 32 cents. Under the said circumstances, the claim made by the appellant/plaintiff is not legally valid and the Courts below have concurrently found that the plaintiff is not entitled to get the relief sought for in the plaint and therefore, the concurrent Judgments passed by the Courts below are not liable to be interfered with.
35. It has already been discussed in detail, that the father of the predecessor in title of the plaintiff by name Perumal Nadar has purchased only 32 cents under Ex.B7 and his son Velayudhan Nadar has sold 10 cents to Muthayyan Nadar under Ex.B9 and the remaining 22 cents to Swami Pillai under Ex.B11. Therefore, the said Velayudhan Nadar has had no right to execute sale deed in respect of suit survey number after exhibits B9 and B11 and the plaintiff is not having title to the alleged suit property under Ex.A1.
36. The release deed alleged to have been executed by erstwhile minor by name Simtha in favour of the first defendant herein has been marked as Ex.B20. The predecessor in title of the said erstwhile minor by name Swami Pillai has purchased only 22 cents under Ex.B11 and the mother of the minor has purchased only 22 cents under Ex.B13. But the erstwhile minor has stated in Ex.B20 as 32 cents. The first defendant has also purchased only 22 cents under Ex.B15. Therefore, it is quite clear that in the suit survey number only 32 cents are available and the same have already been sold by the said Velayudhan Nadar in favour of Muthayyan Nadar and Swami Pillai and the predecessor in title of the first defendant has purchased only 22 cents and he purchased the same under Ex.B15 and therefore, the claim of the plaintiff as well as the first defendant cannot be accepted and further merely on the basis of the aspects mentioned in the commissioner's plan, the Court cannot come to a conclusion that the plaintiff is having title to the alleged suit property by virtue of Ex.A1. Therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint.
37. In view of the discussion made earlier, the argument advanced by the learned counsel appearing for the appellant as well as the first respondent are not having merits and altogether the present second appeal deserves dismissal and further all the substantial questions of law framed in the second appeal are decided against the appellant.
38. In fine, these second appeals deserve dismissal and accordingly are dismissed with cost. The Judgments and decrees passed in Original Suit Nos.293 of 1983, 272 of 1986, 477 of 1991 and 328 of 1997 by the trial Court, upheld in Appeal Suit Nos.52, 31, 67 of 1992 and 47 of 2003 by the first appellate Court are confirmed. Connected CMP.No.1664 of 2006 is also dismissed.
mj To
1.The Subordinate Court, Kuzhithurai
2.The Principal District Munsif Court, Kuzhithurai.