Madras High Court
Kanna Konar vs Kanniammal
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED;12.04.2012 CORAM; THE HONOURABLE MR.JUSTICE T.RAJA S.A.NO.239 OF 2006 Kanna Konar S/o Parvatha Konar Periyakulam Village Chengam Taluk Tiruvannamalai District ..Appellant vs 1.Kanniammal w/o Kasambu Konar 2.Malliga W/o Loganathan D/o Kasambu Konar 3.Sankar S/o Kasambu Konar 4.Babu S/o Kasambu Konar 5.Ezhilmaran S/o Kasambu Konar 6.Selvi W/o Adhimoolam D/o Kasambu Konar respondents 1 to 6 are residing at Periyakulam village Melpadur, Chengam Taluk Tiruvannamalai District 7.Vengammal W/o Govindasamy Konar 8.Sarojammal W/o Venugopal Respondents 7 and 8 are residing at Periyakulam Village, Chengam Taluk, Tiruvannamalai District 9.Pachaiyappa Konar (Given up) s/o Parvatha Konar 10.Arimuthu Konar (Given up) S/o Parvatha Konar 11.Vijayan (Given up) S/o Late Raji Konar 12.Rukmani Ammal (Given up) ..Defendants D/o Raji Konal Second Appeal is filed against the judgment and decree made in A.S.No.32/2003 dated 08.12.2004 on the file of District Judge, Tiruvannamalai, Tiruvannamalai District confirming the judgment and decree as made in O.S.No.613/1995 dated 21/03/2003 on the file of the District Munsif Court, Tiruvannamalai. for appellant :Mr.S.Vediyappan for respondents :Mr.S.Mukunth for M/s Sarvabhauman and Associates (for R1 to R6) No appearance for R7 and R8 R9 to R12- Given up ..................... J U D G M E N T
The present Second Appeal has been brought by the unsuccessful defendant No.3-Kanna Konar who last his case both before the learned trial Court and learned first appellate Court at the hands of his own sisters purchaser/plaintiff-Kasambu Konar.
2. (i) The plaintiff-Kasambu Konar being purchaser of the suit property from one Saroja-D7 by sale deed dated 14.12.1994-Ex.A2-75 cents of land filed a suit stating that the suit property originally belong to one Vediappa Konar, Son of Ramasamy Konar and the Vediappa Konar had given the said property to his daughter Chinnakannu Ammal as stridhanam under the deed dated 12.4.1946. The said Chinnakannu Ammal had been enjoying the property in S.No.146/1A, admeasuing 1.50 acres of land. The said Chinnakannu Ammal married one Parvatha Konar and they have also given birth to two daughters and four sons. D1, D2, D3 and one Raju Konar were sons of both Chinnakannu Ammal and Parvatha Konar. Since Raju Konar also died, his two sons, being legal heirs were brought on record as D5 and D6. Vengammal-D4 and Saroja-D7 are daughters of Chinnakannu Ammal and Parvatha konar. Whileso, the stridhana property given to Chinnakannu Ammal under the deed dated 12.4.1946 admeasuring 1 acre and 50 cents was divided into two equal shares, namely, each 75 cents to the two daughters, namely, D4-Vengammal and D7-Saroja. Only after the stridhana property of Chinnakannu Ammal was divided into two equal shares and allotted to Vengammal-D4 and Saroja-D7, from Saroja-D7, the plaintiff by virtue of sale deed dated 14.12.1994 had purchased the suit property. Therefore, the sons of Chinnakannu Ammal and Parvatha Konar, namely, D1, D2 and D3 and Raju Konar cannot have any right or title over the suit property. It was also averred by the plaintiffs/respondents herein before the Courts below that the suit property, namely, 75 cents was allotted to Saroja-D7 by way of oral partition in the year 1970. It was also the case of the plaintiffs that when Chinnakannu Ammals stridhana property admeasuring 1 acre and 50 cents was divided into two equal divisions, namely, 75 cents, one division admeasuring 75 cents was allotted to Vengammal-D4, and the other division of 75 cents was allotted to Saroja-D7. Vengammal-D4, in the year 1970 through mortgage deed dated 07.12.1970Ex.A14 mortgaged the property to Saroja-D7 another sister, and the D3/appellant herein by signing the mortgage deed as one of the witnesses to Vengammal-D4 and Saroja-D7 accepted the title of 75 cents allotted in favour of Vengammal-D4. Therefore, when D3/appellant herein had accepted the ownership and title of 75 cents allotted in favour of Vengammal-D4, it is not open to him to challenge or disagree the suit property, namely, 75 cents allotted to Saroja-D7.
(ii) The defendant No.3/appellant herein filed a detailed written statement opposing the prayer giving a different story in support of his case. In the written statement the D3/appellant/brother of the plaintiffs vendor-Saroja had clearly admitted the fact that 1.50 acres of land originally belonged to one Vediappa Konar who executed a registered settlement deed in favour of her daughter, Chinnakannu ammal on 12.4.1946 as stridhana property. However, the defendant No.3/appellant had denied the subsequent partition took place in respect of 1.5 acres by stating that D1, D2 and Raju Konar were allotted 25 cents each in the suit property and the D3/appellant was allotted 75 cents for the reason his mother Chinnakannu Ammal was living with D3. It was also the case of the defendant No.3 that the entire 1.50 acres was divided into four shares from east to west, the western part having 75 cents was allotted to the D3/appellant herein and the adjacent eastern 25 cents was allotted to D1 and the next eastern 25 cents was allotted to the said Raju Konar and the eastern most 25 cents was allotted to D2. It was also the case of the defendant No.3/appellant that he had purchased 75 cents in the settled properties which was allotted to the other defendants, namely, D1, D2 and D4 under registered sale deed dated 20.03.1995. On that basis, it was contended that Saroja has no right or title over the suit property. Under this background, the matter was taken up for trial.
(iii)The learned trial court after framing the following issues (1)Whether the oral partition as pleaded in the plaint is true and whether the suit properties were divided between the 4th and 7th defendants?
(2)whether the patta granted in favour of the 7th defendant is valid and binding?
(3)Whether the registered sale deed in favour of the plaintiff dated 14.12.1994 of the 7th defendant is valid and binding on the other defendants?
(4)Whether the oral partition as pleaded in para 5 of the written statement is true?
(5)Whether the registered sale deed in favour of the 3rd defendant dated 20.03.1995 is true and binding on the other defendants?
(6)Whether the plaintiff is entitled to declaration and permanent injunction as prayed for?
(7)To what relief?
came to the conclusion that the plaintiffs/respondents have proved the allotment of the suit property to D7, namely, Saroja, who is none other than the sister of the defendant No.3/appellant. By accepting the evidence deposed by D7-Saroja who is also one of the members of the family that the property was given to her on the eastern side, namely, the suit property and another 75 cents was given to her sister-D4-Vengammal, the trial Court further held that the Defendant No.3/appellant herein has not filed any document to prove that he is in possession and enjoyment of the suit property and the property lying on the west was allotted to the defendant No.3/appellant in the oral partition as alleged in the written statement. On the basis of the above reasonings, when the trial Court came to the conclusion that D1, D2, D5 and D6 have no right to execute the sale deed under Ex.B3 dated 20.3.1995, the matter was taken up on appeal before the learned first appellate Court.
(iv)The learned first appellate court agreeing with the findings and conclusions reached by the trial Court, confirmed the judgment and decree passed by the trial Court.
As against that the present Second Appeal is filed by D3/appellant.
4. This Court at the time of entertaining this Second Appeal, framed the following substantial questions of law:
(i)Whether the courts below are right in accepting the factum of oral partition between the 7th and 4th defendant when both of them remained exparte in the suit?
(ii)Whether the courts below are right in placing reliance on Ex.A14, income to the conclusion of possession of the suit property by the 7th defendant when the same was neither pleaded by plaintiff in the plaint?
(iii)Whether the courts below are right in placing reliance on the signature of the third defendant in Ex.A.14 when the same was categorically denied by the third defendant?
(iv)Whether the courts below are right in comparing the signature of D-3 with that of the Vakalath on its own without sending the same for an expert opinion.
5. The learned counsel for the appellant/D3 submitted that at no point of time the suit property was allotted to the sisters of D3/appellant, namely, Saroja-D7 or to another sister Vengammal-D4 as claimed by the plaintiffs in the plaint. It was also the case of the D3/appellant herein that the trial Court while decreeing the suit wrongly placed reliance on the mortgage deed dated 07.12.1970-Ex.A.14, in and by which Vengammal-D4, one of the sisters of the defendant No.3/appellant, had mortgaged her share to Saroja-D7. In the said mortgage deed since the D3/appellant has appended his signature as one of the witnesses, the trial Court as well as the learned first appellate Court have wrongly came to the conclusion that appellant/D3 herein having accepted the title and ownership of Vengammal-D4 for mortgaging her share of 75 cents in favour of Saroja-D7, the defendant No.3/D3 cannot challenge the veracity of another 75 cents given in favour of Saroja Ammal-D7 who is the vendor of the plaintiff.
(ii) The learned counsel for the appellant/D3 in support of his submissions relied upon the judgment in K.A.SELVANACHI AND ANOTHER V. DR.S.R.SEKAR ANOTHER (2003 (1) MLJ 769) for a proposition that if any one stands as an attestor of a document, that will not stand as an estoppel for the reason that the attestors are not bound by the document for the mere fact that they have attested the document because attestation of a document does not entitle any of the parties thereto or any one claiming under them to regard such attestation, per se, as acceptance on the part of the attestor that the contents of the documents are true and that such attestor had knowledge of the same unless there is evidence before the Court either intrinsic in the document itself or extrinsic to show that the attestor had knowledge of the contents and had accepted the same as correct. In the present case, the learned counsel further submitted that the defendant No.3/appellant had denied his signature in the mortgage deed-Ex.A.14 dated 07.12.1970 and it goes without saying that D3 has not attested the document. On that basis the trial Court as well as the first appellate court ought not to have decided against the defendant No.3/appellant, on hearing only the fact that the defendant No.3s signature was found in the mortgage deed-Ex.A.14.
6. (i) In reply, the learned counsel for the respondents submitted that the question of title and ownership to the suit property, namely, 75 cents sold by Saroja-D7 by sale deed dated 14.12.1994, that has been mortgaged as Ex.A.2 was accepted on the basis of the subsequent patta issued by the Revenue authorities in favour of Saroja in respect of 75 cents that was allotted out of stridhana property of Chinnakannu ammal. The learned counsel contended that unless there has been sufficient and strong reasoning to defer with such concurrent finding, the same cannot be interfered by this Court.
(ii) The learned counsel further contended that when the issue involved in the case is only on the factual aspect that the suit property, namely, 75 cents belong to Saroja-D7, one of the daughters of Chinnakannu Ammal and Parvatha Konar, the said 75 cents had been rightly allotted in favour of Saroja, while another 75 cents was allotted to Vengammal-D4 and it has been repeatedly found by both the courts below in favour of the plaintiff-Kasambu Konar giving a finding that by virtue of sale deed dated 14.12.1994, the plaintiffs had purchased 75 cents suit property from Saroja, who is one of the own sisters of D3/appellant, such a finding having been reached on proper appreciation of fact with evidence, no interference can be called for.
(iii) The learned counsel for the respondents in support of his submissions has relied upon a judgment of this Court in S.KRISHNAMURTHY VS. S.VENUGOPAL AND 13 OTHERS(1996 (1) LW 663)to state that the D3/appellant herein being own brother of the plaintiffs vendor Saroja-D7, at the time of executing the mortgage deed by another sister Vengammal-D4 in respect of 75 cents in favour of Saroja-D7, has appended his signature knowing pretty well that 75 cents was allotted in favour of Vengammal only. Therefore, Vengammal-D4 is entitled to mortgage the property in favour of Saroja-D7. Having known that Vengammal-D4 was entitled to mortgage her share in favour of Saroja-D7, the defendant No.3/appellant has accepted the execution of mortgage in respect of another 75 cents. Whileso, it is not open to D3/appellant who is none other than the real brother of the plaintiffs vendor-Saroja-D7 to take a different stand challenging the allotment of another equal share of 75 cents allotted in favour of Saroja-D7, the original vendor of the plaintiff.
7. The judgment relied upon by the learned counsel appearing for the respondents also clearly says that if a person with open eyes attested any document and allows any one to derive any benefit then his attestation and acceptance would amount to estoppel. The above ratio clearly goes to support the case of the respondents for the reason that there has been sufficient finding by both the courts below that the D3/appellant's sisters Vengammal and Saroja Ammal have transacted by executing a registered mortgage deed dated 07.12.1970-Ex.A.14. The defendant No.3/appellant herein being well aware of the ownership and title of the property conveyed through the mortgage, had accepted the ownership of Vengammal to have exclusive right and title over 75 cents of land that has legally devolved upon Vengammal-D4 from her mother Chinnakannu ammal.
8. In that view of the matter, when D3/appellant has attested as one of living witnesses to the mortgage deed dated 07.12.1970-Ex.A14, it goes without saying that D3/appellant cannot deny the allocation of another 75 cents in favour of Saroja-D7, the vendor of the plaintiff.
9. In that view of the matter, this Court finding no error or infirmity or flaw in the impugned judgment is bound by the well reasoned and cogent conclusion arrived at by both the Courts below.
10. On this basis, this second Appeal is liable to be dismissed. The judgments and decrees of the courts below are confirmed. No costs.
12.04.2012 index:yes internet:yes sal To
1.The District Judge, Tiruvannamalai, TiruvannamalaiDistrict
2.The District Munsif, Tiruvannamalai.
T.RAJA,J.
(sal) S.A.NO.239/2006 12.4.2012