Madras High Court
Balammal vs Velu (Died) : 1St on 27 March, 2025
SA(MD)No.685 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 27/03/2025
CORAM
The Hon'ble Mr.Justice G.ILANGOVAN
SA(MD)No.685 of 2011
Balammal : Appellant/Respondent/
Plaintiff
Vs.
1.Velu (Died) : 1st Respondent/Respondent/
Defendant
2.Paramasivan
3.Gandhi
4.Madathi
5.Saradha
6.Mallika
7.Mallika W/o.Selvam
8.Kumar
9.Govindaraj
10.Palammal
11.Sakthivel
12.Karthick
13.Praveen : Respondents 2 to 13/
L.Rs of the deceased Velu
(Respondents 2 to 13 are brought
on record as L.Rs of the deceased
sole respondent, vide court order,
dated 26/07/2021 made in CMP(MD)
No.5462 of 2021 in SA(MD)No.685
of 2011)
PRAYER: Second Appeal is filed under Section 100 of
the Civil Procedure Code, to set aside the judgment and
decree passed in AS No.52 of 2010 on the file of the Sub
Court, Sankarankovil, dated 27/01/2011 reversing the
judgment and decree in OS No.216 of 2008 on the file of
the Additional District Munsif Court, Sankarankovil,
dated 24/03/2010.
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For Appellant : Mr.S.Meenakshi Sundaram
Senior Counsel
for Mr.M.Sengu Vijay
For 1st Respondent: Died
For R2 to R13 : Mr.M.Thirunavukkarsu
JUDGMENT
This second appeal is filed against the judgment and decree passed in AS No.52 of 2010 by the Sub Court, Sankarankovil, dated 27/01/2011 reversing the judgment and decree in OS No.216 of 2008 passed by the Additional District Munsif Court, Sankarankovil, dated 24/03/2010.
2.The plaint averments:-
(i)The suit property originally belonged to the grand-father of the plaintiff by name Chinnakaruppan and his brother namely Periyakaruppan through their father namely Muthuveeran. Muthuveeran died leaving behind the legal-heirs. They inherited the property and in possession and enjoyment. The plaintiff's grandfather Chinnakaruppan died leaving behind the plaintiff's father Karuppan as his legal-heir. So, the plaintiff's father Karuppan and the defendant's father Periyakaruppan were in common enjoyment. The plaintiff's father died, when the plaintiff was aged about 10 years. After his death, the property was in enjoyment of the defendant's father on behalf of the plaintiff also.2/40
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(ii)Since the plaintiff was not taken care by the defendant's father, she was under the care and custody of Madathiammal. The defendant's father also died. Now the properties are in possession and enjoyment of the defendant. The plaintiff being the lawful legal-heir of Chinnakaruppan, she is entitled for half share. The plaintiff was demanding partition right from May 2005. But the defendant was evading. He proclaimed that the entire property belongs to him. Later, it came to the notice of the plaintiff that the revenue records were transferred and standing in the name of the defendant. But the properties are deemed to be in joint possession of the plaintiff.
(iii)In the reply notice sent by the defendant, it has been stated that the defendant purchased the plaintiff's half share from her guardian. The guardian has no right to execute the sale deed on behalf of the plaintiff or at the stage of the minor. The sale deed is not binding upon her. Hence, the suit for partition and separate possession of her half share, costs.
3.The statement:-It is admitted that the suit property originally belongs to Muthuveeran and died leaving behind Periyakarupan and Chinnakaruppan. The 3/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 plaintiff's mother namely Madathiammal married some other person even during the life time of the plaintiff's father. After the death of his father, the plaintiff was taken care by her paternal grand-mother called 'Perumalammal' and living under her custody in Achampatti village. She was the legal guardian. Perumalammal on behalf of the plaintiff sold the property, on 19/06/1971 for a sum of Rs.2,500/-. Similarly, Chinnakaruppan's another daughter by name Karuppayeeammal also received Rs.2,000/-, on 21/07/1997 and released his shares in the sale deed, dated 19/06/1997. Chinnakaruppan's other daughters namely Prriyaguruvammal and Chinnaguruvammal also joined in the sale deed. The legal guardian namely Perumalammal sold the property for the welfare of the minor. Later, the plaintiff after attaining majority, made a claim. A panchayat was convened in the presence of the elders, on 20/12/1976. The plaintiff received Rs. 600/- and executed an unregistered release deed. In the deed itself, the sale deed dated 19/06/1971 is admitted by the plaintiff. Later, the property was mutated in the name of the defendant's father and later in the name of the defendant. He deepened the well at the cost of Rs. 1,20,000/-. Service connection was granted in their favour, By long and continuous possession, the defendant prescribed title by adverse possession and because of the 4/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 exclusion of plaintiffs from the common enjoyment for 30 years, the plaintiff's share is also lost.
4.On the basis of pleadings of both sides, the following issues were framed by the trial court:-
(1)Whether it is true that the plaintiff has relinquished her share in the suit properties by way of an unregistered relinquishment deed?
(2)Whether the plaintiff is entitled for the relief of partition?
(3)What relief, the plaintiff is
entitled to?
5.On the side of the plaintiff, 3 witnesses were examined and 5 documents marked. On the side of the defendant, one witness was examined and 14 documents marked.
6.The trial court, by judgment and decree, dated 24/03/2010 decreed the suit and a preliminary decree for partition was passed. Against which, AS No.52 of 2010 was preferred by the defendant. The appellate court, by judgment and decree, allowed the appeal by setting aside the judgment and decree passed by the trial court and dismissed the suit.
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7.Against which, this second appeal is preferred.
8.At the time of admitting the second appeal, the following questions of law were framed:-
(1)Whether the first appellate court is correct in framing first point for determination when there is no specific plea of ouster raised by the respondent herein and answering that point in favour of the respondent?
(2)Whether the first appellate
court is correct in coming to the
conclusion that paternal guardian can
execute a valid sale deed on behalf of the minor on assumption as through she is natural guardian and that too without getting Court permission?
(3)Whether the first appellate
court is correct in coming to the
conclusion that Ex.B1 is only a voidable document and hence the suit is bared by 6/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 limitation as the appellant has not questioned its validity within time?
(4)Whether the first appellate court is correct in relying upon Ex.B3 when it is hit under Registration Act and Stamp Act?
9.Heard both sides.
10.Before we go into the disputed issue, let us keep in mind the following admitted facts.
11.The suit property originally belonged to one Muthuveeran. He had two sons namely Periyakaruppan and Chinnakaruppan. The defendant Velu is the son of Periyakaruppan. Chinnakaruppan married Perumalammal. He had four childrens namely Karuppan, Karuppayeammal, Periyaguruvammal and Chinnaguruvammal. Karuppan was married to Madathiammal. To them, the plaintiff Balammal was born. Karuppan died around 1966 leaving behind the plaintiff Balammal as the sole legal heir.
12.It is the contention of the defendant namely Velu that Karuppan's wife Madathiammal the mother of this 7/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 plaintiff, eloped with some other person even during the life of Karuppan. The plaintiff was brought by her paternal grandmother. At that time, the paternal grandmother by name Perumalammal sold the half right of the plaintiff to the defendant. Ever-since, the entire ancestral or joint family property was owned by the defendant.
13.Per contra, it is the contention of the plaintiff that Madathiammal is still alive. After the death of her father, she was taken care by the relatives. Perualammal the paternal grandmother had no right to sell the property. The sale effected by Perumalammal is void ab inito. So, there is no necessity for her to cancel the sale deed after attaining the majority. Since, it is the ancestral property, she is entitled for the share belonged to Karuppan, the father.
14.This is the sum and substance of the case of both sides. Before we go into the issue, who brought Balammal, whether the sale deed executed by Perumalammal in favour of the defendant in respect of the share of the plaintiff is valid under law can be taken up.
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15.The sale deed is marked as Ex.B1. In the sale deed, Perumalammal for herself and on behalf of the plaintiff, who is the minor at that time and Periyaguruvammal, Chinnaguruvammal joined as vendors. She has stated that the suit properties are their ancestral properties. Apparently, Perumalammal is not the natural guardian of the plaintiff, since the document was executed on 19/06/1971 after the enforcement of Hindu Minority and Guardianship Act, 1956.
16.Section 4(b) of the Act speaks about the natural guardian and guardian appointment by will of the minor father and mother, guardian appointment declared by the court are empowered to act as such by any enactment relating to. Section 6 speaks about the natural guardian for the person as well as the property. First father, after him, mother. The father was no more on the date of Ex.B1. Mother was alive. As mentioned above, according to the defendant, the mother of the plaintiff eloped with some other person even during the life time of Karuppan.
17.Now the question, which arises for consideration is whether due to the absence of natural guardian, the paternal grandmother can act as natural guardian and deal with the property of the minor.
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18.It is admitted that no such declaration of appointment was made by the competent civil court. So, if at all, she can be considered only as a de-facto guardian.
19.Now as per section 11 of the Hindu Minority and Guardianship Act, 1956, it is a complete and total bar for the de-facto guardian to enter into any sort of transaction regarding the minor's property.
20.Section 11 of the Act can be profitably referred:-
“11.De facto guardian not to deal with minor's property.-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.”
21.When there is a clear disqualification or bar for Perumalammal to enter into any transaction in respect of the minor's property, it is not valid under law.
22.That was the finding of the trial court. But the appellate court against this statutory provision has held 10/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 that Ex.B1 is the valid document. The court is bound by statue. The court cannot of its own validates on illegal act. Since section 11 of the Act, as mentioned above, bars the de-facto guardian, Ex.B1 is not valid to the extent of the plaintiff's share in the property. So, the contra finding recorded by the appellate court requires interference.
23.The Hon'ble Supreme court in the judgment reported in Madhegowda (D) by Lrs Vs. Ankegowda (D) by Lrs & others [2002(4)CTC 51] has observed that arrangement made in violation of section 11 is a void document, which requires not to be challenged by way of filing a proper suit after attaining majority of the plaintiff. This applies to joint family property also. This is followed by this court in Rajalakshmi and others Vs. Minor Ramachandran and another (AIR 1967 MAD 118).
24.But per contra, the learned counsel appearing for the respondent by relying upon the Division Bench judgment of this court reported in Dhanasekaran Vs. Manoranjithammal and others 1992 0 Supreme (Mad) 168 would contend that alienation made by the de-facto guardian is not void and it is only a voidable. He is referring to the judgment of this court reported in 11/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 Rajalakshmi and others Vs. Minor Ramachandran and another (AIR 1967 MAD 118).
25.But, as mentioned above, there is an authoritative pronouncement of law by the Hon'ble Supreme Court in Madhukar vishwanth Vs. Madhao and others [2002(4) CTC 49]. Probably the judgment cited by the respondent might have been the older view. The judgment cited by the respondent in Dhanasekar Vs. Manoranjithammal and another (AIR 1992 Mad.214) was referred by the Hon'ble Supreme Court in the judgment reported in Madhegowda (D) by Lrs Vs. Ankegowda (D) by Lrs& others (2002(4) CTC 51 in para 22. After taking into account, all those earlier judgements, the judgment of the Privacy Council before the introduction of the Hindu Minority and Guardianship Act, 1956 regarding the legal character of de-facto guardian, concluded the position in para 22 and 23, which read as follows:-
A Division Bench of the Madras High Court in the case of Dhanasekaran vs. Manoranjithammal & Ors., AIR 1992 Madras 214, construing Section 11 of the Act, held, inter alia, that the property of a Hindu minor referred to 12/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 in Section 11will include all his properties, including his undivided interest in the joint family property and consequently that the sale by the de facto guardian of the minors interest in the joint family property was void ab initio. The Division Bench approved the decision of the single Judge in this regard. However, the Division Bench did not agree with the view taken by the single Judge that the sale by a de facto guardian of the minors interest in the joint family is void and held Section 11 renders the sale voidable only.
23.We have carefully considered
the principles laid down in the
aforementioned decisions so far as
relevant for the purpose of
adjudication of the issue arising in
the present case. It is to be kept in
mind that this is not a case of
alienation of minors interest in a
joint family property. As noted
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earlier, Ninge Gowda died leaving his two daughters, namely Smt.Sakamma and Smt.Madamma. It is not the case of any of the parties that the suit property was a joint family property in the hands of Ninge Gowda or that the alienation by Smt.Madamma, who is the sister of the minor, was a transfer of the minors interest in the joint family property. Therefore, the question whether the provision in Section 11 is applicable in the case of transfer of minors interest in a joint family does not arise for consideration here.
Section 11 includes all types of properties of a minor. No exception is provided in the Section. Undoubtedly Smt.Madamma, sister of the minor, is not a guardian as defined in Section 4(b) of the Act. Therefore, she can only be taken to be a de facto guardian or more appropriately de facto manager. To a transfer in such a case Section 11 of the Act squarely applies.
Therefore, there is little scope for 14/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 doubt that the transfer of the minors interest by a de facto guardian/manager having been made in violation of the express bar provided under the Section is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property. Such an invalid transaction is not required to be set aside by filing a suit or judicial proceeding. The minor, on attaining majority, can repudiate the transfer in any manner as and when occasion for it arises. After attaining majority if he/she transfers his/her interest in the property in a lawful manner asserting his/her title to the same that is sufficient to show that the minor has repudiated the transfer made by the de facto guardian/manager.
26.In view of the authoritative pronouncement on that point, the contention raised by the respondent that 15/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 the de-facto guardian was more or less a natural guardian and entitled to act with the properties is not acceptable. This is the correct view. So, the contention raised by the respondent is rejected. As held by the Hon'ble Supreme Court, it is concluded that Ex.B1 is not valid to the extent of the plaintiff's share in the property.
27.Naturally, the question of legal necessity does not arise. In fact, no such legal necessity for selling the share of the plaintiff is mentioned in Ex.B1. As mentioned above, it does not assume any importance. So, this substantial question of law is answered that the appellate court was not right in concluding that Ex.B1 is a valid document.
Substantial question of law No.3:-
28.This is a consequential substantial question of law to the substantial question of law No.2. It has been held that Ex.B1 is a void document and not merely voidable. So, the question of challenging the same, after majority does not arise at all. So, the judgments cited by the respondent in U.Palanisamy Vs. K.Thangavelu and another (2011(1)TLNJ 522 (Civil) and S.Mallika Vs. 16/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 R.Krishnaveni [2020(1)CTC 68] have no application. So, this substantial question of law is answered accordingly. Substantial Question of Law No.4:-
29.Section 17 of the Registration Act reads as under:- Sub section b and c are applicable.
“17.Documents of which registration is compulsory.-(1)The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely,
(a)instruments of gift of immovable property;
(b)other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, 17/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
(c)non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
30.It is a valuable property. Even as per Ex.B1, the total sale consideration was fixed at Rs.2,500/-. Any release in respect of immovable property, which is more than 100 rupees can be made only by a registered document. Admittedly, Ex.B3 is not a registered document. More-over, in that document itself, release was effected after receiving Rs.600/-. So it ought to have been registered. In view of the non-registration of the document, it is hit under section 17 of the Indian Registration Act. But how the document was marked even without making any stamp duty penalty is not known. It appears that the parties as well as the court did not notice the same, when section 17 of the Registration Act 18/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 and section 35 of the Stamp Act prohibits the document to be let in any evidence.
31.Section 35 of the Stamp Act is extracted hereunder:-
“35. Instruments not duly stamped inadmissible in evidence, etc.-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:Provided that
(a)any such instrument shall for "not being an instrument chargeable with a duty not exceeding ten naye paise only, or a bill of exchange or promissory note, shall, subject to all just exceptions," be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently 19/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
(b)where any person from whom a
stamped receipt could have been
demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
(c)where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;20/40
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(d)nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the [Code of Criminal Procedure, 1898 (5 of 1898)] [ Now see the Code of Criminal Procedure, 1973 (2 of 1974).];
(e)nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of the Government, or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.”
32.But at the same time, it is settled proposition of law that an unregistered document can be looked into for collateral purpose. What is the collateral purpose, for which the document is relied by the defendant namely the respondent herein can be taken up later. Now this point is answered that the appellate court is not right 21/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 in relying upon Ex.B3 for whatever purpose, except collateral purpose. But or this also stamp duty penalty is paid.
Substantial question of law No.1:-
33.Having cleared all the legal issues, now we will go to the first substantial question of law.
34.As mentioned above, we will take up the first issue as to whether the plaintiff was brought under the care of Perumalammal. PW1 would say that after the death of the father, her mother was married. She went along with her.
35.PW2 the Aunt of the plaintiff would say that when Karuppan died, the plaintiff was aged about 9 years. She took care of the plaintiff for sometime in Manjolai, thereafter, she went along with her mother, when mother was married second time.
36.PW3 her relative, even though during chief examination would say that the plaintiff was under the care and custody of her mother and later, by her Aunt, during the cross examination would admit that she was 22/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 brought by Perumalammal.
37.Now, we will go to the evidence of DW1, more particularly about the care and custody of the plaintiff. During the cross examination also, nothing was brought on record by the plaintiff. Now whatever it may be, it is seen that Karuppan died when the plaintiff was aged about
9. She was taken care by her Aunt for sometime and later under the custody of Perumalammal. We need not concentrate much upon that point now, since it has been already held that Ex.B1 is not valid to the extent of the plaintiff's share. Now the issue has become insignificant.
38.Now coming to the nature of the property, it is admitted by both sides that the property originally belongs to Muthuveeran, later it devolved upon Periyakaruppan and Chinnakaruppan and each having half share. Now the plaintiff says that Chinnakaruppan's half share devolved upon her father Karuppan and her share devolved upon her.
39.The trial court granted decree for half share. The appellate court, even though allowed the appeal, but recorded a finding that the plaintiff got only 6/20th share and that too was transferred to the defendant. The 23/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 remaining half share of Chinnakaruppan devolved upon the Chinnakaruppan's legal heir namely his wife Perumalammal, his son Karuppan, daughters Karuppaayammal, Periyaguruvammal and Chinnaguruvammal. Totally five. But, it is held that the daughters were married before 1989 Tamil Nadu Act. So, Karuppan and Chinnakaruppan are equally entitled to 1/4th share and the property of Chinnakaruppan to divided into 1/5th share. By calculating so, the plaintiff was held to be entitled for 1/20th share. We can leave this point without any further discussion, since it can be taken up at the relevant point of time, if so required.
40.The defendant during the course of evidence has taken out a new plea stating that the property was divided between his father Periyakaruppan and Chinnakaruppan. But that was not proved. Even in Ex.B1, it is not stated that the property was divided between two brothers, in that partition, the property was allotted to Chinnakaruppan's share. The belated attempt on the part of the defendant to show that only after division, he purchased the half share of Chinnakaruppan is not correct on record and it has to be rejected.
41.So, it has to be taken that the property belongs 24/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 to Muthuveeran, in which Periyakaruppan and Chinnakaruppan are equally entitled to get equal share. On which date, Chinnakaruppan died, there is no evidence. So, naturally Chinnakaruppan's half share will devolve upon his legal heirs namely Perumalammal, Karuppan, Karuppayeammal, Periyaguruvammal and Chinnaguruvammal. Each entitled to get 1/5th share prima facie.
42.Now the half share of Karuppan devolved upon his wife Madathiammal and the plaintiff equally. Periyaguruvammal and Chinnaguruvammal joined in Ex.B1. Later, Karuppayeammal also joined in the release deed under Ex.B2. Perumalammal already joined in Ex.B1. So, the remaining share of Balammal and Madathiammal are available. As mentioned above, Madathiammal's whereabouts is not known. Whether she was married after the death of Karuppan is not clear on record. It appears that she has not claimed any right over the property. We need not discuss much about her share. Remaining share is the plaintiff. As mentioned above, Ex.B1 is not valid to the extent of the plaintiff share.
43.Now the whole point boils down to a single point as to whether the right of the plaintiff is lost by ouster under Article 110 of the Limitation Act. 25/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011
44.Much argument was advanced by the appellant on this point. For raising the plea of ouster, no plea is available in the written statement; The appellate court on its own, framed a point for consideration and non- suited the plaintiff.
45.This, according to the learned Senior counsel for the appellant, is per se illegal.
46.Perusal of the written statement filed by the defendant shows that the plea of limitation is raised. Apart from that, it is stated that the defendant is in possession and enjoyment of the property for more than 37 years and the plaintiff has lost her right.
47.By pointing out this, the learned counsel for the respondent would rely upon the judgment of the Hon'ble Supreme Court reported in Narain Prasad Aggarwal (D) by L.Rs Vs. State of M.P (2007-5-SUPREME 524) for the purpose of argument that the pleading of the moffusil court should not be taken in a strict sense. The relevant para is extracted hereunder:-
“26.The plaint might not have been 26/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 very happily drafted. But it is well known that, ordinarily, moffusil pleadings are not to be strictly construed as has been held in Des Raj Vs. Bhagat Ram [2007 (3 SCALE 371] in the following terms:-
"It may be true that in his plaint, the plaintiff did not specifically plead ouster but muffosil pleadings, as is well known, must be construed liberally.
Pleadings must be construed as a whole.
Only because the parties did not use the terminology which they should have, ipso facto, would not mean that the ingredients for satisfying the requirements of statute are absent.
There cannot be any doubt whatsoever
that having regard to the changes
brought about by Articles 64 and 65 of
the Limitation Act, 1963 vis-`-
vis Articles 142 and 144 of the
Limitation Act, 1908, the onus to prove adverse possession would be on the person who raises such a plea. It is 27/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 also furthermore not in dispute that the possession of a co-sharer is presumed to be possession of the other co-sharers unless contrary is proved."
48.But this does not make any difference, since there is a clear averment in the written statement that the plaintiff's right is lost by long enjoyment by the defendant, this is sufficient enough to say that the plea of ouster is raised by the defendant.
Now the question of ouster:-
49.The appellate court has non-suited the plaintiff on the ground of point of limitation. Article 110 of the Limitation Act reads as follows:-
By a person Twelve years When the exclusion excluded from a becomes known to joint family the plaintiff property to enforce a right to share therein
50.By pointing out this, the learned Senior counsel appearing for the appellant would submit that the date of knowledge of the exclusion might have been brought on 28/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 record by the defendant. Though the appellate court has not addressed this point in a proper manner and without any discussion and finding, in a single sentence, it concluded that the suit is bared by limitation. For that proposition of law, he would rely upon the following judgments:-
(1)K.Kailasamoorthy Vs. N.Indiradevi and others (2003(6)CTC 755; and (2)R.Rayappan (Died) and others Vs. Rajammal (Died) and others (2025(1)CTC 407.
51.Per contra, the respondent would rely upon the following judgments:-
(1)Umadevi Vs. C.D.Ethirajan (Died) and others (2019-5-L.W.204) and (2)Jeganathan Vs. Sellathurai (2021-1-
L.W.606)
52.Here, there is no direct evidence on the point of knowledge of exclusion. It covers only circumstantial evidence and probability theory. For that purpose, we will see the dates and events.
53.As mentioned above, the father of the plaintiff 29/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 died in 1996. The plaintiff was 9 or 10 at that time. She was brought by her Aunt for sometime and later, according to the plaintiff, she was taken by her mother. As per the school record, she was born, on 13/02/1966 would have attained majority around 1984. We can ignore Exs.B1, B2 and B3, because of its lack of legal sanctity. She was married at the age of 18 years. The suit was filed in 2008 i.e., after 24 years. What she was doing for the long 24 years without demanding any partition is a matter for consideration.
54.The learned Senior counsel appearing for the plaintiff would draw the attention of this court to the facts deposed by her during the course of cross examination. She has stated that from the date of her marriage, she was demanding partition, for which the respondent replied in positive and promised to give her due share.
55.By pointing out this, he would submit that continuation of the demand was there and the respondent was giving share of the yield. So, this according to him, will show that no knowledge can be attributed or imputed to show the exclusion.
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56.In this context, we will go to the evidence of PW2 the Aunt. As mentioned above, according to her, she was bringing the plaintiff for sometime. She is a party to Ex.B1. He would also admit that the respondent paid Rs.2,000/- to her. But would deny that Ex.B1 was executed by her. Her evidence is totally unbelievable. Having received the money from the respondent, now she says that she did not execute Ex.B1. If we take her evidence, she would have told the plaintiff even during her minority that the respondent paid money for the property. Because there is an admission by the plaintiff during cross examination that there was no enmity between her and PW2 and PW2 will not act against her interest. So, she ought to have taken proper legal steps after attaining majority. But she remained silent for more than two decades. All of sudden, she woke up and sent a notice of partition. Between these two period, absolutely, there is no evidence on record to show that the plaintiff was receiving share.
57.To show the knowledge of exclusion only, Ex.B3 is pressed into service. But none connected with Ex.B3 was examined. Because of the specific bar under section 35 of the Stamp Act and section 17 of the Registration Act, the evidentiary value of Ex.B3 is absolutely nothing. Even 31/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 PW3 the plaintiff's own witness has given contradictory statement that in his presence only, the marriage of the plaintiff was performed. In the marriage, the defendant did not participate.
58.This shows that the relationship was not cordial even on the date of marriage of the plaintiff. When that is being so, the contention on the part of the plaintiff that she was demanding right from the date of her marriage; there was a promise by the respondent to give a share and the share in the yield was given to her are all totally unbelievable.
59.So, the circumstance clearly indicates that at one point of time, the sale made by her paternal grand- mother might have been brought to her knowledge. Exactly on which year, it was brought to her notice, absolutely there is no evidence. The plaintiff was not even care to examine her mother. She was competent person to speak about the affair of the plaintiff during her minority. Since it has been stated by her that she was brought by her mother and not her paternal grandmother, why she was not examined, there was no explanation. 32/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011
60.All these things and the conduct of the plaintiff in remaining silent for more than two decades shows that she had knowledge about the sale. Even, if it is void, it can be taken as notice. So, the circumstances are clearly against the appellant/plaintiff. Having failed to file the suit within 12 years from the date of the knowledge, then non-suiting the plaintiff by the appellate court in the absence of any concrete evidence whether requires any interference? For answering this question, we can profitably refer to the judgment of the this court in Puniyavathi and another Vs. Pachaiammal and others (Appeal Suit No.251 of 2011, dated 22/02/2022, wherein, reference is made to the judgment to the Hon'ble Supreme Court, it has been held in para 23 as follows:-
“23. In Vidya Devi @ Vidya Vati
(Dead) vs Prem Prakash &
Others reported in (1995 AIR 1789), the Hon’ble Supreme Court has observed:-
“The legislature has not prescribed any period of limitation for filing a suit for partition because partition is an incident attached to the property and there is always a running cause of action for seeking partition by one of the co-sharers if and when he decides not to keep his share joint with other co-sharers. Since the filing of the 33/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 suit is wholly dependent upon the will of the co-sharer, the period of limitation, specially the date or time from which such period would commence, could not have been possibly provided for by the legislature and, therefore, in this Act also a period of limitation, so far as suits for partition are concerned, has not been prescribed. This, however, does not mean that a co-sharer who is arrayed as a defendant in the suit cannot raise the plea of adverse possession against the co-sharer who has come before the Court as a plaintiff seeking partition of his share in the joint property.
Normally, where the property is
joint, co-sharers are the
representatives of each another. The
co-sharer who might be in possession of the joint property shall be deemed to be in possession on behalf of all the co-sharers. As such, it would be difficult to raise the plea of adverse possession by one co-sharer against the other. But if the co-sharer or the joint owner had been professing hostile title as against other co-sharers openly and to the knowledge of others joint owners, he can, provided the hostile title or possession has continued uninterruptedly for the whole period prescribed for recovery of 34/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 possession, legitimately acquire title by adverse possession and can plead such title in defence to the claim for partition.
"Adverse possession" means hostile possession, that is, a possession which is expressly in denial of the title of the true owner. (See:/Gaya Parshad Dikshit Vs. Nirmal Chander and another (AIR 1984 SC 930). The denial of title of the true owner is a sign of adverse possession. In Ezaz Ali Vs. Special Manager, Court of Wards (AIR 1935 PC 53), it was observed:
"The principle of law is firmly
established that a person, who bases
his title on adverse possession, must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claimed."
Dr.Markby in his treatise "Elements of Law" (Second Edition) has observed that possession "to be adverse must be possession by a person who does not acknowledge the other's rights but denies them. (See also:AIR 1947 PC 15).
It is a matter of fundamental principle of law that where possession can be referred to a lawful title, it will not be considered to be adverse.35/40
https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 It is on the basis of this principle that it has been laid down that since the possession of one co-owner can be referred to his status as co-owner, it cannot be considered adverse to other co- owners. (See: Maharajadhiraj of Burdhwan, Udaychand Mahatab Chand Vs. Subodh Gopal Bose and others AIR 1971 SC 376; P. Lakshmi Reddy Vs. L.Lakshmi Reddy AIR 1957 SC 314; Mohammad Baqar and others Vs. Naim-un- Nisa Bibi & Others AIR 1956 SC 548).
In Karbali Begum Vs. Mohd Sayeed (AIR 1981 SC 77), it was held that a co-
sharer in possession of the property
would be a constructive trustee on
behalf of other co-sharer who is not in possession and the right of such co- sharer would be deemed to be protected by the trustee co-sharer.
Certain observations of the Privy Council in Coera Vs. Appuhamy (AIR 1914 PC 243, 245-246) may be quoted below:-
"Entering into possession and
having a lawful title to enter, he
could not divest himself of that title by pretending that he had no title as all. His title must have ensured for the benefit of his co-proprietors. The principle recognised by Wood, V.C. 36/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 in Thomas Vs. Thomas (1856) 25 LJ Ch 159 (161): 110 RR 107 holds good: `Possession is never considered adverse if it can be referred to a lawful title”. His possession was, in law, the possession of his co-owners. It was not possible for him to put an end to that possession by any secret intention in his mind. Nothing short of ouster or something equivalent to ouster could bring about that result."
From the underlined portion extracted above, it will be seen that in order that the possession of co- owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. This was also the observation of the Supreme Court in P.Lakshmi Reddy's case (supra) which has since been followed in Mohd. Mohd. Zainulabudeen Vs. Syed Ahmad Mohiddin (AIR 1990 SC
507).
"Ouster" does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in 37/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 the case of co-owner. They are (i) declaration of hostile animus (ii) long and uninterrupted possession of the person pleading ouster and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”
61.This will give more clarity on the question of law now raised.
62.Now going back to the evidence of PW1 and PW2, there is a possibility of letting PW1 to know about the dealing of the property by the paternal grandmother and her Aunt and having known all these facts, she remained silent for several decades. Even though, Ex.B3 was not established by the defendant legally and factually, the fact remains that some sort of issue was raised by the plaintiff regarding the property. This itself indicates that the plaintiff was aware of the sale made by her paternal grand-mother. But in spite of that, she remained silent, which dis-entitles her from claiming the right as indicated in Article 110 of the Limitation Act. 38/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011
63.In the result, this second appeal fails and the same is dismissed, confirming the judgment and decree passed by the appellate court. No costs.
27/03/2025 Index:Yes/No Internet:Yes/No er To,
1.The Sub Judge, Sankarankovil.
2.The Additional District Munsif, Sankarankovil.
3.The Section Officer, VR/ER Section, Madurai Bench of Madras High Court, Madurai.
39/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm ) SA(MD)No.685 of 2011 G.ILANGOVAN, J er SA(MD)No.685 of 2011 27/03/2025 40/40 https://www.mhc.tn.gov.in/judis ( Uploaded on: 22/04/2025 12:43:25 pm )