Madras High Court
Amirthammal vs Krishnamoorthy on 25 August, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.08.2022
Pronounced on : 25.08.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.No.1753 of 2002
1.Amirthammal
2.Visalatchi
3.Rajambal
...Plaintiffs / Respondents / Appellants
Vs.
1.Krishnamoorthy
2.Sankar
3.Jayamurthy
4.Rajamani
5.Killammal
6.M/s.G.M.Pens International Pvt. Ltd.,
No.2, Janakpuri, Velacherry Bye-pass road,
Velacherry, Chennai - 42.
Represented by its company Secretary.
R6 impleaded vide order of Court dated
24.11.2014 made in CMP.No.388 of 2014
in S.A.No.1753 of 2002.
6.M/s.Rorito International Private Limited,
No.2, Jankpuri, Velacherry Bye-pass road,
Velacherry, Chennai - 42. ... Respondents
https://www.mhc.tn.gov.in/judis
2
Memo recorded dated 22.06.2022. R6 name
changed as M/s.Rorito International Private
Limited instead of M/s.G.M.Pens
International Private Limited vide court
order dated 22.06.2022 made in
S.A.No.1753 of 2002.
The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.70 of 2000 dated 06.09.2001 on the
file of the Principal District Court, Puducherry reversing the judgment and
decree made in O.S.No.1382 of 1996 dated 31.03.1999 on the file of the II
Additional District Munsif Court, Puducherry.
For Appellants : Mr.M.Santhanaraman
For R1 to R5 : Mr.V.Raghavachari
For R6 : Mr.T.Poornam
JUDGMENT
The plaintiffs in O.S.No.1382 of 1996 on the file of the II Additional District Munsif Court, Puducherry are the appellants herein. https://www.mhc.tn.gov.in/judis 3
2.They had filed the aforesaid suit originally against one defendant, Neela Ammal seeking a declaration that they are the absolute owner of the suit properties and to direct the defendant to handover the same and for costs of the suit.
3.Pending the suit, the sole defendant, Neela Ammal died and her legal representatives were brought on record as 2nd to 6th defendants.
4.By judgment dated 31.03.1999, the suit was decreed and the defendants were directed to hand over vacant possession within a period of three months.
5.The 4th, 5th and 6th defendants then filed A.S.No.70 of 2000 before the Principal District Court, Puducherry. By judgment dated 06.09.2001, the appeal suit was allowed and the judgment and decree in O.S.No.1382 of 1996 was set aside and partly decreed by granting a declaration that the plaintiffs therein were declared to be the owners of half share of the suit properties except those items which had already been alienated by the defendant Neela Ammal. It was also directed that the defendants shall https://www.mhc.tn.gov.in/judis 4 deliver to the plaintiffs 1/2 share in the properties which were still under their possession and not alienated by Neela Ammal forthwith.
6.Questioning that particular judgment, the plaintiffs had filed the present Second Appeal.
7.The defendants have not filed any cross appeal questioning the direction to handover 1/2 share of the properties which were still in their possession and which had not been alienated by the original defendant Neela Ammal.
8.Pending the Second Appeal, the 6th respondent had been impleaded by order dated 24.11.2014 in CMP.No.388 of 2014. Subsequently, the name of the 6th respondent had also been changed by order dated 22.06.2022.
9.The Second Appeal had been admitted on 31.01.2003 on the following two substantial questions of law:
“1.Whether the illegitimate children born out of illicit intimacy are entitled to succeed the ancestral https://www.mhc.tn.gov.in/judis 5 property as the illegitimate children born out of void or voidable marriage?
2.Whether prior to 1963 during when the Hindu Law was made applicable to Union Territory at Pondicherry what law was governing the personal rights of local Hindus of Pondicherry (i.e) whether fresh (French) law or local custom and usage?”
10.After hearing the learned counsels on 22.06.2022, the following third substantial question of law had been framed for consideration:
“3.Whether the purchase by the 6th respondent, is legally valid, void or voidable in view of the fact that the purchase was pending the Second Appeal, without obtaining leave of this Court and when the right of the vendor himself has been put in issue in the Second Appeal?” https://www.mhc.tn.gov.in/judis 6
11.However, during arguments, the learned counsel stated that only the second substantial question of law need be examined by this Court. O.S.No.1382 of 1996 (II Additional District Munsif Court Puducherry):-
12.The three plaintiffs namely, Amirthambal, Visalatchi and Rajambal are the daughters of Vadivel Gounder. It was stated that the suit properties originally belonged to their grand parents Kulandai Gounder and Solaiammal. A Notarial partition – cum – donation deed was executed on 02.01.1947 by the original owner in favour of their son Vadivel Gounder. Vadivel Gounder married one Lakshmi Ammal. The plaintiffs are their children. It was claimed that the properties mentioned in the schedule were in possession and enjoyment of Vadivel Gounder till his death on 28.05.1986. The plaintiffs further alleged that the defendant against whom they first instituted the suit, Neela Ammal had a relationship with Vadivel Gounder. Prior to his death, Vadivel Gounder lived with Neela Ammal. He died in that residence. Claiming to be the legal representatives of Vadivel Gounder, the plaintiffs approached Neela Ammal seeking possession of the suit properties. Since she delayed in handing over possession, the suit had been filed for declaration of title and for delivey of possession. https://www.mhc.tn.gov.in/judis 7
13.As stated, the defendant died and her legal representatives had been brought on record as further defendants. It must also be stated that Lakshmi Ammal mother of the plaintiffs had filed O.S.No.568 of 1986 seeking partition and separate possession. This suit was filed before the I Assistant Sub Court Puducherry. After the death of Lakshmi Ammal, the plaint was amended and the plaintiffs were impleaded. Thereafter, they filed I.A.No.2212 of 1993 seeking permission to withdraw the suit and institute a fresh suit on the same cause of action. That application was dismissed on 09.03.1994 but, allowed by order dated 11.08.1995 in C.R.P.No.928 of 1995 by this Court. It was under these circumstances, that the plaintiffs had filed the suit seeking declaration of title and for direction to hand over vacant possession of the suit properties.
14.The defendants filed a written statement admitting to the notarial partition deed dated 02.01.1947 with respect to the suit property in favour of Vadivel Gounder. It was also admitted that the plaintiffs were the children of Vadivel Gounder and Lakshmi Ammal. It was however, denied that Vadivel Gounder was in possession of the properties till his death. It was https://www.mhc.tn.gov.in/judis 8 stated that Vadivel Gounder married the 1st defendant Neela Ammal as his second wife and three daughter were born namely, Rajamani, Kilaiammal and Kala. Rajamani and Kilaiammal had been impleaded as 2nd and 3rd defendants. Kala had died leaving behind her husband Munusamy and her children, the 4th to 6th defendants namely, Krishnamurthy, Sankar and Jayamoorthy.
15.The defendants stated that Vadivel Gounder had executed a settlement deed on 26.04.1978 by which he had given 9 items of the suit properties to her absolutely. From that date, the 1st defendant was in enjoyment and possession of those properties. After the death of the 1st defendant the 2nd to 6th defendants continued to be in possession and enjoyment of suit properties. They claimed that out of the 12 items mentioned in the suit schedule, item Nos.1 to 5, 7, 9, 11 and 12 belong to them absolutely and they were in possession. They also claimed that they have prescribed title by continuous hostile possession of the said properties for well over the statutory period. They stated that as legal heirs of Vadivel Gounder they were entitled to an undivided 1/7th share. They also stated that even with respect to the 9 items covered under the settlement deed, the 1st https://www.mhc.tn.gov.in/judis 9 defendant had already sold away 6 items. It was therefore stated that the plaintiffs were entitled to an undivided 7/14 share in the unsold properties and in the properties which still remain. The defendants denied that the plaintiffs can claim exclusive title and possession of the properties. They finally urged that the Court should dismissed the suit.
16.The suit properties as given in the schedule to the plaint were wet and dry lands at Sethurapet Veli and Karasur Veli in Sethurapet Village, Villianur Commune, Puducherry. In the schedule to the plaint Cad numbers and Resurvey numbers had been given to each one of the 12 items.
17.On the basis of the above pleadings, the learned Trial Judge framed necessary issues particularly, whether the plaintiffs were the absolute owners of the suit properties and whether the plaintiffs were entitled to recover possession of the suit properties from the defendants and whether the plaintiffs were entitled to a judgment and decree as prayed for.
18.During trial, the 3rd plaintiff, Rajambal was examined as PW-1. The 2nd defendant, Rajamani was examined as DW-1 and an independent witness Chakrapani was examined as DW-2.
https://www.mhc.tn.gov.in/judis 10
19.The plaintiffs marked Exs.A1 to A10. Ex.A1 was the certified copy of the partition -cum- donation deed dated 02.01.1947. Ex.A4 was the death certificate of Vadivel Gounder dated 28.05.1986. The translated version of Ex.A1 was marked as Ex.A6. The order in I.A.No.2212 of 1993 in O.S.No.568 of 1986 and its decree were marked as Exs.A7 and A8. The copy of the order in CRP.No.928 of 1995 dated 11.08.1995 was marked as Ex.A9.
20.The defendant marked Exs.B1 to B18. Ex.B1 was the certified copy of the donation -cum- settlement deed dated 26.03.1978 executed by Vadivel Gounder in favour of Neela Ammal. Exs.B2 to B5 were house tax and water tax receipts. Exs.B12 to B14 were copies of three sale deeds dated 30.04.1964, 25.08.1983 and 20.06.1986 respectively. Ex.B17 was the copy of the settlement deed 03.07.1995 and Ex.B18 was the copy of the sale deed dated 25.01.1995.
21.On the basis of the above pleadings, oral and documentary evidence, the learned II Additional District Munsif Puducherry, observed that Vadivel Gounder had a relationship with the 1st defendant Neela Ammal https://www.mhc.tn.gov.in/judis 11 even when his wife Lakshmiammal was alive. As a matter of fact, it was also found that Lakshmiammal had filed O.S.No.568 of 1986 after the death of Vadivel Gounder seeking partition and separate possession. On her death, the appellants herein as daughters were impleaded as plaintiffs. They then filed I.A.No.2212 of 1993 under Order 23 Rule 3 of CPC seeking permission to withdraw the suit to file a fresh suit on the same cause of action. That interlocutory application was originally dismissed, but was later allowed by order dated 11.08.1995 in CRP.No.928 of 1995 by this Court. It was therefore stated that the suit in O.S.No.1382 of 1996 had been filed by the present appellants seeking declaration of title and recovery of possession of the suit properties.
22.It was noted by the learned II Additional District Munsif, that the 1st defendant was designated as a concubine and that therefore cannot claim any right as lawful married wife of Vadivel Gounder. It was observed that the suit properties belonged to the father of the Vadivel Gounder by name Kulandai Gounder and his wife Solaimmal and therefore it was held that the suit properties were ancestral properties of the plaintiffs. It was stated that the plaintiffs are entitled for their share over the suit properties. The learned https://www.mhc.tn.gov.in/judis 12 II Additional District Munsif, brushed aside the contention that some of the properties had been sold. It was stated that the settlement deed dated 26.04.1978 executed by Vadivel Gounder had not been acted upon and that possession had not been granted and that the names have not been mutated in the revenue records. It was finally held that the suit should be decreed and that the defendants must be directed to handover vacant possession. A.S.No.70 of 2000 (Principal District Court, Puducherry):-
23.Questioning this judgment, the 4th, 5th and 6th defendants filed A.S.No.70 of 2000. The learned Principal District Judge framed necessary points for consideration and again re-examined the evidence on record.
24.The learned Principal District Judge observed that the 1st to 3rd plaintiffs were born to Vadivel Gounder and his wife Lakshmiammal and they were his legitimate children. It was also noted that subsequently Vadivel Gounder had a relationship with the 1st defendant Neela Ammal and through her, the 2nd, 3rd defendants and also one another daughter Kala was born. It was therefore contended that they were illegitimate children of Vadivel Gounder. It was also stated that Vadivel Gounder had acquired the https://www.mhc.tn.gov.in/judis 13 properties by a partition -cum- donation deed dated 02.01.1947 and from that date onwards he had been in possession of the properties allotted to him. The document had been marked as Ex.A1 and the translated copy had been marked as Ex.A6.
25.It was observed that after his relationship with the 1st defendant developed, Vadivel Gounder had executed a donation -cum- settlement deed dated 26.03.1978, which had been marked as Ex.B1. Under the said settlement deed, he had donated 9 out of 12 properties which had been allotted to him under Ex.A1 in favour of the 1st defendant. The 1st defendant consequent to such donation -cum- settlement deed had proceeded to deal with some of the properties. It was also observed by the learned Principal District Judge that this fact was not known to Lakshmiammal who filed O.S.No.568 of 1986 for partition and separate possession and on coming to know that there was a cloud over the title of the properties had filed an application to withdraw the suit to file a fresh suit on the same cause of action and that permission was granted in CRP.No.928 of 1995 dated 11.08.1995, which order was marked as Ex.A9 and thereafter the suit in O.S.No.1382 of 1996 had been filed by the plaintiffs stepping into the shoes of their mother Lakshmiammal.
https://www.mhc.tn.gov.in/judis 14
26.However, the learned Principal District Judge was of the opinion that the donation in favour of the 1st defendant was valid as those properties were absolute properties of Vadivel Gounder. It was stated that therefore the plaintiffs cannot seek any declaration of title over such properties which had been settled by Vadivel Gounder in favour of the 1st defendant, but would be entitled for a share of the remainder of the properties which had not been settled, along with the children of Vadivel Gounder through the 1st defendant.
27.The learned Principal District Judge also stated that the properties which had not been dealt with by the 1 st defendant would also devolve in proportionate shares to the plaintiffs as legal representatives of Vadivel Gounder. Unfortunately, there is no cross appeal filed as against such finding given by the learned Principal District Judge. However, holding as above, the appeal was allowed and the judgment and decree in O.S.No.1382 of 1996 was set aside.
https://www.mhc.tn.gov.in/judis 15 S.A.No.1753 of 2002:-
28.Questioning that judgment and decree the plaintiffs had filed the present Second Appeal. The Second Appeal had been admitted on 31.01.2003 on the following two substantial questions of law:
“1.Whether the illegitimate children born out of illicit intimacy are entitled to succeed the ancestral property as the illegitimate children born out of void or voidable marriage?
2.Whether prior to 1963 during when the Hindu Law was made applicable to Union Territory at Pondicherry what law was governing the personal rights of local Hindus of Pondicherry (i.e) whether fresh (French) law or local custom and usage?”
29.After hearing the learned counsels on 22.06.2022, the following third substantial question of law had been framed for consideration:
“3.Whether the purchase by the 6th respondent, is legally valid, void or voidable in view of the fact that the purchase was pending the Second Appeal, without https://www.mhc.tn.gov.in/judis 16 obtaining leave of this Court and when the right of the vendor himself has been put in issue in the Second Appeal?”
30.Heard arguments advanced by the learned counsel for the appellants and the learned counsel for the respondents.
31.The 1st substantial question of law actually pales into insignificance since the properties dealt with by Vadivel Gounder had been allotted to him under Ex.A1 / A6 / partition -cum- donation deed dated 02.01.1947 entered among Vadivel Gounder and his parents Kulandai Gounder and Solaiammal. From that date onwards, the properties so allotted became the absolute properties of Vadivel Gounder. Therefore, the first substantial question of law which revolves around succession to ancestral property by illegitimate children born out of illicit intimacy would not arise for consideration since the properties which are the subject matter of dispute are not ancestral properties but the absolute properties of Vadivel Gounder.
The first substantial question of law is answered accordingly. https://www.mhc.tn.gov.in/judis 17
32.The 2nd substantial question of law is with respect to applicability of the law governing the personal rights of local Hindus of Puducherry. For such applicability, the plaintiffs must first establish eligibility for applicability of French Law.
33.The only pleading which is available in the plaint is that the properties had been allotted to Vadivel Gounder under the partition -cum- donation deed executed on 02.01.1947, Exs.A1 and A6. The properties remained the absolute properties of Vadivel Gounder. He dealt with some of them. Thereafter, by Ex.B1 dated 26.03.1978, he had executed a donation
-cum- settlement deed in favour of the 1st defendant Neela Ammal with whom he had commenced a subsisting relationship though he was married to Lakshmiammal. He had so settled 9 items of properties out of 12 items of properties.
34.It is contended by the learned counsel for the appellants that such settlement is void since Vadivel Gounder would be legally entitled to settle only 1/8th share of his properties as the Customary Law was applicable to the native residents of Puducherry.
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35.Unfortunately, though this line of argument was also advance before the First Appellate court, it is seen from the judgment under appeal that the First Appellate court had not consciously answered it. No answer can be given since it had not been pleaded by the plaintiffs that they are native residents of Puducherry and therefore are governed by French Law and since the properties had devolved on to Vadivel Gounder by a document of the year 1947, he was governed under French Law. When the plaintiffs have not pleaded a particular fact, it would be imprudent on the part of this Court to assume and presume that every resident of Puducherry was a native of Puducherry and was bound by the stipulations under the French Law. Such applicability of French Law can be with respect to individual cases and cannot be taken as a general application to all residents of Puducherry.
36.This focus of argument without there being pleaded to that effect in the plaint cannot unfortunately be accepted or even be examined by this Court. The plaintiffs in the plaint have not stated that they are bound by the French Law.
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37.Moreover, the suit is a continuation of the earlier suit instituted by their mother in O.S.No.586 of 1986. An examination was done with the records to find out whether the plaint in that particular suit was filed. But unfortunately, that plaint was also not filed. Therefore, it would be extremely inappropriate to grant declaration of title to immovable properties on the basis of a presumption that a family which was residing in Puducherry would be governed only by French Law as applicable to the natives of Puducherry prior to the introduction of the Indian Succession Act, 1963. It must be kept in mind that Ex.B1 was executed on 26.03.1978 well after the introduction of the Indian Succession Act, 1963.
38.In Union of India (UOI) and ors. vs Vasavi Co-op. Housing Society Ltd., and Ors., (2014 2 SCC 269 : AIR 2014 SC 937, the Hon’ble Supreme Court held as follows :
“14. At the outset, let us examine the legal position with regard to whom the burden of proof lies in a suit for declaration of title and possession. This Court in Maaran Mar Basselios Catholicos vs Thukalan Paulo Avira reported in MANU/SC/0181/1958 : AIR 1959 AC 31 observed https://www.mhc.tn.gov.in/judis 20 that “in a suit for declaration if the plaintiffs are to succeed, they must do so on the strength of their own title.” In Nagar Palika, Jind vs Jagat Singh, Advocate, MANU/SC/0260/1995 : (1995) 3 SCC 426, this Court held as under :
“The onus to prove title to the property in question was on the Plaintiff. In a suit for ejectment based on title it was incumbent on the part of the court of appeal first to record a finding on the claim of title to the suit land made on behalf of the Plaintiff. The court is bound to enquire or investigate that question first before going into any other question that may arise.” “15. The legal position, therefore is clear that the Plaintiff in a suit for declaration of title and possession could succeed only on the strength of its own title and that could be done only by adducing sufficient evidence to discharge the onus on it, irrespective of the question whether the Defendants have proved their case or not. We are of the view that even if the title set up by the Defendants is found against, in the absence of establishment of Plaintiff’s own title, Plaintiff must be non-suited.” (Emphasis Supplied) https://www.mhc.tn.gov.in/judis 21
39.In the instant case, to prove the Ex.B1, the defendants have examined DW-2 Chakrapani who was one of the attesting witness. He confirmed that he signed the document Ex.B1 and that Vadivel Gounder also signed the said document. He withstood cross-examination. Thus it has to be concluded that the focus of the substantial question of law itself is not based on pleadings. There has been only a stray argument put forth before the First Appellate Court for the first time without any basis and without any pleadings that the parties were governed by French Law. It would not proper on the part of this Court to enter into a discussion on a fact not pleaded by the parties. If they were to be governed under French Law, it for the plaintiffs to plead that fact and substantiate that fact in manner known to law and then seek the Court to apply French Law to them. But they have not done so.
40.Therefore, the 2nd substantial question of law also pales into insignificance.
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41.Mr.M.Santhanaraman, learned counsel for the appellants, however, made a fervent plea on this line and also produced judgments to show that a settlement deed by a national governed under French Law can be valid only to 1/8th extent of his holdings. But when the basic fact that the parties were actually governed by French Law had not been established, I am afraid credence cannot be given to that line of argument put forth by the learned counsel for the appellants.
42.The 3rd substantial question of law surrounds the purchase by the 6th respondent without obtaining leave of this Court. The said purchase had been from and out of the properties settled by Vadivel Gounder in favour of the respondents. He had every right to so settle the properties. On settlement, the properties immediately vested with the 1st respondent. Once they so vested, the 1st respondent had every right to deal with the said properties. Therefore, the fact that the 1st respondent had so dealt with the properties cannot be held against her. The substantial question of law is therefore answered that though the right of the vendor had been put in issue in the Second Appeal, still the fact remains that though the plaintiffs sought a declaration that they were owners of the properties but had not sought any https://www.mhc.tn.gov.in/judis 23 declaration that the donation -cum- settlement deed, Ex.B1 is not binding and is null and void. They have not questioned that particular document. That particular document is voidable in nature.
43.The right of the Vadivel Gounder to execute the settlement deed had not been questioned by the plaintiff. They however state that as the lawful legal representatives of Vadivel Gounder they are alone entitled for the suit properties.
44.In Muppudathi Pillai V. Krishnaswami Pillai and others reported in AIR 1960 Mad (1) : (1959) 72 LW 543, the Full Bench of Madras High Court had examined the scope of Section 41 of the Specific Relief Act, 1877. It must be noted that Section 33(1) of the Specific Relief Act, 1963 is the pari materia provision. The Full Bench noticed the distinction between Section 35 of the Specific Relief Act, 1877 equivalent to Section 27 of the Specific Relief Act, 1963 and also Section 39 of the Specific Relief Act, 1877 equivalent to Section 31 of the Specific Relief Act, 1963 and held as follow:
https://www.mhc.tn.gov.in/judis 24 “11. … It may be noticed that the above section applies not merely to the case of an instrument which is voidable but also one that is void. Section 35 provides for the case of rescission of voidable contracts. It is evident that Section 39 covers not only a case contemplated under Section 35, but also a wider field, that is, a case of a void document, which under the law need not be set aside.”
12. The principle is that such document though not necessary to be set aside may, if left outstanding, be a source of potential mischief. The jurisdiction under Section 39 is, therefore, a protective or a preventive one. It is not confined to a case of fraud, mistake, undue influence, etc. and as it has been stated it was to prevent a document to remain as a menace and danger to the party against whom under different circumstances it might have operated. A party against whom a claim under a document might be made is not https://www.mhc.tn.gov.in/judis 25 bound to wait till the document is used against him. If that were so he might be in a disadvantageous position if the impugned document is sought to be used after the evidence attending its execution has disappeared.
Section 39 embodies the principle by which he is allowed to anticipate the danger and institute a suit to cancel the document and to deliver it up to him. The principle of the relief is the same as in quia timet actions.
45.A Full Bench of the Andhra Pradesh High Court in Yanala Malleshwari V. Ananthula Sayamma, (2006) SCC OnLine AP 909 : AIR 2007 AP 57, followed the judgment of the Full Bench of the Madras High Court in Muppudathi Pillai (referred supra) and then stated the law thus:
“33. The law, therefore, may be taken as well settled that in all cases of void or voidable transactions, a suit for cancellation of a deed is not maintainable. In a case where immovable property is transferred by a https://www.mhc.tn.gov.in/judis 26 person without authority to a third person, it is no answer to say that the true owner who has authority and entitlement to transfer can file a suit under Section 31 of the Specific Relief Act for the simple reason that such a suit is not maintainable. Further, in case of an instrument, which is void or voidable against executant, a suit would be maintainable for cancellation of such instrument and can be decreed only when it is adjudicated by the competent court that such instrument is void or voidable and that if such instrument is left to exist, it would cause serious injury to the true owner.”
46.In Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties reported in (2021) 4 SCC 786, the Hon'ble Supreme Court affirmed the above propositions laid down by the Full Bench of the Madras High Court in Muppudathi Pillai (referred supra) and the Full Bench of the Andhra Pradesh High Court in Yanala Malleshwari (referred supra). https://www.mhc.tn.gov.in/judis 27
47.It is thus seen that a distinction has been drawn as between an instrument which is void and an instrument which is voidable. An instrument which is voidable must be sought to be interfered with by a decree of the Court.
48.In the instant case, Ex.B1 is a voidable document. Vadivel Gounder had the right to execute the settlement deed. If it is contended that the recitals are not in accordance with the law which prevailed, then the document is voidable. It must be sought to be set aside. If Vadivel Gounder had no right at all to execute a settlement deed, then alone it is a void document.
49.In the instant case, the appellants have not sought any relief to set aside the settlement deed Ex.B1 and having not done so cannot complain of alienations done under Ex.B1 and therefore, the 3rd substantial question of law is answered that the alienation in favour of the 6th defendant by the 1st defendant / legal representatives of the 1st defendant would not affect the purchase made by the 6th defendant.
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50.In view of the above reasoning, I hold that the judgment and decree of the First Appellate Court has to be upheld notwithstanding the fact that the plaintiffs have actually benefited from such judgment by getting a declaration over the properties which had not been disposed of by the 1st defendant. It is for the parties to workout the properties which are available and proceed in manner known to law.
51.In the result,
(i).The Second Appeal is dismissed, however, without costs.
(ii).The judgment and decree of the First Appellate Court in A.S.No.70 of 2000 dated 06.09.2001 on the file of the Principal District Court, Puducherry is uphled and confirmed.
25.08.2022 Index:Yes/No Internet:Yes/No Speaking / Non speaking order smv https://www.mhc.tn.gov.in/judis 29 To
1.The II Additional District Munsif Court, Puducherry.
2.The Principal District Court, Puducherry.
3.The Section Officer, VR Section, Madras High Court. https://www.mhc.tn.gov.in/judis 30 C.V.KARTHIKEYAN,J.
Smv Pre-delivery Judgment made in S.A.No.1753 of 2002 25.08.2022 https://www.mhc.tn.gov.in/judis