Madras High Court
Sekar vs The Government Of Tamilnadu on 30 May, 2024
A.S.(MD)No.246 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 19.03.2024
PRONOUNCED ON : 30.05.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
A.S.(MD)No.246 of 2021
and
C.M.P.(MD)No.8201 of 2021
1.Sekar
2.Yesudasanraja ... Appellants / Plaintiffs
Vs.
1.The Government of Tamilnadu,
Rep by the District Collector,
Tirunelveli District.
2.The Tahsildar,
Alangulam Taluk,
Tirunelveli District.
3.Kadanganeri Village Panchayat,
Represented by its President,
Alangulam Taluk, Tirunelveli District. ... Respondents / Defendants
PRAYER: This Appeal Suit filed under Section 96 of C.P.C., to set aside
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A.S.(MD)No.246 of 2021
the Judgment and Decree dated 30.08.2017 passed in O.S.No.01 of
2014 on the file of the Additional District Judge (Fast Track), Tenkasi.
For Appellant : Mr.G.Prabhu Rajadurai
For R-1 & R-2 : Mr.N.Muthuvijayan,
Special Government Pleader
For R-3 : Mr.A.Srinivasan
JUDGMENT
The appeal suit is directed against the judgment and decree passed in O.S. No. 1 of 2014, dated 30.08.2017, on the file of the Additional District Court, (Fast Track Court), Tenkasi.
2. The appellants / plaintiffs have filed the above suit, claiming the following reliefs:
a) To direct the 1st defendant to partition the plaintiff's three-fifth share in the suit schedule property by metes and bounds and hand over the same.
b) To grant a permanent injunction restraining the 2nd defendant from removing the name of the plaintiffs in Patta No. 547 with respect to the plaint schedule property.
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c) To grant a permanent injunction restraining the 3rd defendant and his agents from interfering with their rightful title and possession over the suit schedule property.
d) To award the cost of the suit to the plaintiffs from the defendant.
e) To pass such other reliefs as the Court deems fit and proper.
3. For the sake of convenience and brevity, the parties will hereinafter be referred as per their status / ranking in the original suit.
4. The plaintiff's case in short is as follows:
4.1. The suit property originally belonged to Seeniammal, W/o.
Paul Nadar. She was enjoying a separate patta in patta No. 391 under the UDR Scheme. The present patta number for the said suit property is
547. Seeniammal passed away in the year 1989, her husband predeceased her. Chellammal, Selvi, Sekar, Balasingham, and Chellappa are the legal heirs of Seeniammal. Among them, Balasingham also predeceased Seeniammal. His wife papa (Sivagaami) also died. On 09.03.1994, Madakkan Nadar who is not a party in this suit 3/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 fraudulently obtained the General Power of Attorney (GPA) by misrepresenting it as a lease deed from the two daughters Selvi and Chellammal. According to the Succession Act, they were entitled only to 2/5 shares in the suit property, but the entire suit property has been shown in the said General Power of Attorney (GPA). This document does not bind the right of Seeniammal’s legal heirs. The above said Madakkan Nadar made a self-sale on 18.04.1994 vide registered sale deed in document No. 316/1994 at the Sub-Registrar office, Uthumalai, and has gifted the said suit property to its full extent to the 1 st defendant on 15.09.1997 vide a gift deed. The said gift deed is not valid because Selvi and Chellammal did not get any sale consideration for the said suit property from Madakkannu Nadar. A sale deed executed without consideration is void. The plaintiffs did not accept the above- mentioned sale deed. The gift deed never came into force nor was acted upon.
4.2. On 29.11.2013 the plaintiffs applied for the encumbrance certificate at the Sub Registrar’s office, Uthumalai and after that only they came to know that the act of Madakkannu Nadar is illegal. The suit property is a Punja land. The suit property is in joint possession of the plaintiffs and other heirs of Seeniammal. The plaintiffs have purchased the undivided 3/5 shares from the heirs of late.Seeniammal namely Chellappa, Sekar, Bala Singham, on 10.10.2013. Moreover, 4/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 mutation has been effected with respect to the sale deed dated 10.10.2013 and the plaintiffs' name are also incorporated in the Patta bearing document No. 547 with respect to the suit property. The plaintiffs’ have 3/5 share of the said suit property. The 3rd defendant with a view to harass the plaintiffs, through their agents have filed false complaints to the 2nd defendant and without any prior notice, the 2nd defendant required the plaintiffs to appear before Aalankulam Taluk office for inquiry on 07.12.2013 and a statement regarding the sale has been recorded. Moreover, the plaintiffs have also been asked to cancel the document dated 10.10.2013. Since the plaintiffs refused, they informed that the names of the plaintiffs would be removed from the said Patta. The suit property is not handed over to the 3 rd defendant. The 3rd defendant is trying to snatch the suit property by misusing his official position as a panchayat president. Moreover, the 3rd defendant is threatening the 2nd defendant Tashildar using his manpower and official power. The act of the 2nd and 3rd defendants is illegal. This act can be restrained only through an order passed by the Court.
4.3. Therefore, the plaintiffs have filed this suit for partition of their 3/5 shares from the suit property, to grant a permanent injunction against the 2nd defendant from removing the plaintiffs’ name from the patta, to grant a permanent injunction against the 3rd 5/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 defendant or his agents from interfering with their title or possession of the suit property. The cause of action for this suit arose at various period, when Seeniammal enjoyed the suit property having Patta No. 391, when the legal heirs of Seeniammal enjoyed the suit property after the death of the Seeniammal in the year 1989, when the suit property was sold to the plaintiffs on 10.10.2013, when the plaintiffs' name was added to the Joint Patta No. 547, when the plaintiffs’ were called upon for inquiry on 07.12.2013 at Aalankulam Taluk office, when the 3rd defendant tried to deprive the plaintiffs' right over the said suit property. All the aforesaid cause of action arose at Kadanganeri at Thirunelveli district within the jurisdiction of the Court. Hence, this suit.
5. The defense of the 2nd defendant adopted by the first defendant in brief is as follows:
5.1. The plaint filed by plaintiffs are legally and judiciously not valid. The plaintiffs are not entitled to any relief sought by them.
Therefore, the case should be dismissed, in limini. Since it has been averred in para 4 of plaint, that, on 09.03.1994 Madakkan Nadar who is not a party to the suit, has fraudulently obtained the general power of attorney by misrepresenting it as a lease deed from the legal heirs of 6/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 the Seeniammal namely Chellammal and Selvi, the said Madakkan Nadar is a necessary party to the suit. This suit shall be dismissed on the ground of non-joinder of parties as Madakkan Nadar has not been impleaded as a party to the suit. The plaintiff has to prove the facts stated in the plaint through appropriate oral and documentary evidence. According to the revenue records, the Patta for the suit property is registered in the name of the Governor of Tamil Nadu under Patta No.547. As per the settlement deed from Madakkannu Nadar dated 15.09.1997 in document No.890/1997 and the settlement deed from Subramanian and Murugan dated 22.09.1997 in document No. 919/1997, the suit property was given to the Government for public benefit. Currently, the suit property is in the possession of the Government and is not intended for the possession and enjoyment of the plaintiffs. The plaintiffs have not filed any document to prove that they possess the suit property.
5.2. Furthermore, if the plaintiffs were in possession of the suit property, the reason for availing the encumbrance certificate on 29.11.2013 has not been mentioned in the plaint. This omission indicates that the plaintiffs acknowledge they do not possess the suit property. The plaintiffs have fabricated a sale deed dated 10.10.2013 and have filed this suit to appropriate the Government property. 7/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 Therefore, the plaintiffs are not entitled to the reliefs sought. The cause of action stated by the plaintiffs and the valuation of the suit are incorrect. The plaintiffs are not entitled to the remedy of a permanent injunction against the defendants without having rightful ownership. No suit can be filed without the cause of action. This suit is void so they are not entitled to the remedy sought. Other than the averments expressly admitted all other averments in the plaint are completely denied by the 2nd defendant. The plaintiffs are not entitled to any relief as sought in the amended plaint. The plaintiffs have not issued statutory notice to the 2nd defendant as per law.
5.3. Therefore, the suit filed against this defendant is not sustainable in the law. The description, short cause title and long cause title of the suit with reference to the 2nd defendant are wrong and are not in accordance with law. The details as to how the short cause title and long cause title be mentioned in a plaint is clearly given in the Panchayat Act. If the description is not mentioned in terms of Panchayat Act, then the case filed against a person who is not a proper juristic person is not valid. The cause title given to the 2nd defendant in the original plaint and amended plaint is not in accordance with the law. The 2nd defendant is not a juristic person and the plaintiffs’ suit is 8/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 barred by limitation.
6. The defense of the 3rd defendant in brief is as follows:
6.1. The averments in the plaint are false, frivolous and vexatious.
The suit is barred by the limitation. The plaintiffs are not entitled for any relief sought by them. This suit should be dismissed on the grounds of non-joinder of necessary and proper parties. This suit should be dismissed based on the rule of partial partition. For the last 20 years the 3rd defendant panchayat has been in possession and enjoyment of the suit property from the date of gift i.e., 15.09.1997 to till date. Even if we go by the plaintiff’s claim, after a long time a fabricated document was made and this case has been filed and is barred by the law of limitation hence this suit is liable to be dismissed. It is true that the said suit property originally belonged to Paul Nadar’s wife Seeniammal and it is also true that she had two daughters and three sons, namely, Chellammal, Selvi, Balasingham, Chellappa and Sekar. Apart from this suit property Seeniammal owned a few other properties too. The children of Seeniammal orally partitioned her properties in which the suit property fell to the shares of her two daughters Selvi and Chellammal. Selvi and Chellammal have executed a General Power of Attorney in favor of Madakkan Nadar, son of Subbiah Nadar on 09.03.1994 to negotiate the sale consideration of the property which 9/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 they have acquired and enjoyed. This fact is well known to the brothers of Selvi and Chellamal, Sekar and Chellappa. When General Power of Attorney was executed and registered, both Sekar and Chellappa signed as witnesses. Since Balasingham and his wife were dead and their children were minors at the time of execution of General Power of Attorney, they did not sign in the document.
6.2. The General Power of Attorney holder Madakkan Nadar sold the suit property to another Madakkan Nadar, S/o. Subbaiya Nadar on 18.04.1994. Without understanding the above fact, for the purpose of suit, it is claimed that, the Power of Attorney has been misrepresented as a lease deed. Even if it is regarded as a lease deed it could be understood that the said suit property is now not in the possession of the plaintiff. Therefore, stamp duty that has been paid for the partition of the suit property which is not in possession of the plaintiff is insufficient. On 15.09.1997, S. Madakkan Nadar gifted the suit property to the 3rd defendant through the 1st defendant. Since receiving the gift, the 3rd defendant has constructed a manure dump on the suit property to store manure, trash, and dust from within the local panchayat limits. This suit property has been used as a manure storage area. The 3 rd defendant has possessed the suit property for the past 20 years, a fact 10/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 well known to the plaintiffs and other local residents. This possession has been uninterrupted and without objection, as the property has been utilized as panchayat property. The plaintiffs have no rights based on the fabricated sale deeds in their favor. Through the Tamil Nadu Electricity Board (TNEB), the 3rd defendant has set up an electricity sub-station in the suit property for the benefit of the public. The property has been cleaned and levelled, and a cement pipe has been installed to remove drainage water from the suit property. The 3rd defendant panchayat has spent Rs. 40,000/- (Rupees Forty Thousand only) on these improvements.
6.3. Moreover, 6 years ago, the 3rd defendant panchayat installed a board on the suit property with a warning message prohibiting the removal or taking of sand from the property. After Government officials from the Tamil Nadu Electricity Board visited the suit property for the installation of the electrical substation, the plaintiffs quickly inquired about encumbrances, if any, on the property. On 10.10.2013, they fabricated a sale deed with respect to the suit property using a person who had no rights to it. Based on this forged document, they filed this suit. Therefore, this suit is not legally sustainable. The Patta for the said suit property has been issued in the Governor’s name and the suit 11/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 property is in separate possession of the 3rd defendant. That is why even for the sake of the plaint, it is not mentioned that the said suit property is in the joint possession of the plaintiffs. Since the entire property of Seeniammal is not mentioned as suit property this suit should be dismissed on the grounds of the partial partition of the suit property.
6.4. The remedy sought by the plaintiffs (ii) is barred by the law under section 14 of Tamil Nadu Pass Book Act and Section 9 of Code of Civil Procedure. The Injunction relief sought by the plaintiff (iii) is not sustainable by the law as the 3rd defendant is also a co-owner of the said suit property. The description of the suit property are wrong and the plaintiff had no possession or the right over the said suit property, hence the suit is liable to be dismissed. The cause of action for this suit is also incorrect and the suit valuation as well as the stamp duty for the suit are also wrong. The remedy sought by the plaintiff is non- maintainable and hence, the suit is liable to be dismissed. Except that which are expressly admitted herein by the 3rd and other all averments are false and completely denied.
7. The Trial Court, upon considering the above pleadings has framed the following issues:
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i) Whether the suit property was allotted to the female children of the Seeniammal on oral partition?
ii) Whether the suit is bad for non-joinder of necessary parties?
iii) Whether the suit is bad for Partial Partition?
iv) Whether Court Fee paid by the plaintiffs is correct?
v) Whether the plaintiffs are entitled to the relief of Preliminary Decree for Partition and Separate Possession of 3/5 shares?
vi) Whether the plaintiffs are entitled to the relief of Permanent Injunction as prayed for against the 2nd Defendant?
vii) Whether the plaintiffs are entitled to the relief of Permanent Injunction as prayed for against the 3rd Defendant?
Viii) To what relief, the plaintiffs are entitled?
Additional Issue:
Whether the suit is barred by the law of limitation?
8. The learned Trial Judge, upon considering the pleadings and the evidence both oral and documentary, and on hearing the arguments of both sides, has passed the judgement and decree dated 30.08.2017 by answering, issues No.1, 2 and 3 in favour of the plaintiffs. As far as the 4th issue with respect to the Court Fee is concerned, the learned Trial Court directed the plaintiff to value and pay the Court Fees under 13/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 Section 37 (1) of the Tamil Nadu Court Fees and Suit Valuation Act within three (3) months from the date of the order. As far as Additional Issue No.1 is concerned, the learned Trial Court decided the same in favour of the defendants. On that basis, issues No. 5, 6, 7 and 8 were also decided as against the plaintiffs and accordingly the suit was dismissed as devoid of merits.
9. Aggrieved by the impugned judgement and decree, the plaintiffs have preferred the present Appeal Suit.
10. The learned counsel for the appellant / plaintiff submitted that, when the daughters of the Seeniammal had admittedly only 2/5th share in the suit schedule property, they have no authority to execute Power of Attorney in respect of the entire property and the said Madakkan has no authority to convey the entire extent of suit schedule property to the Government. He further submitted that the Government cannot deprive a citizen of his property by claiming adverse possession in respect of a property belonging to private person as the same is in violation of one's Constitutional right viz., Right to Property as guaranteed under Article 300A of the Constitution of India. He further added that P.W-2 one Chellappa (Son of Seeniammal) was an attesting witness in the sale deed executed by the daughters of Seeniammal and 14/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 it is a settled preposition of law that an executor need not know that contents of the documents. Even assuming the property has been gifted to the Government, the 3rd defendant Panchayat cannot claim to be its owner as there is no document to establish the conveyance of ownership in favour of 3rd defendant. In fact, the D.W-1 in his Cross examination has admitted that there is no document to show that the suit schedule property was vested with the 3rd defendant Panchayat.
11. He further submitted that, admittedly the Joint Patta stood in the name of the Government and the said Seeniammal and thereafter in the names of plaintiffs. As such the plaintiffs cannot be construed to be excluded from possession of the suit schedule property. There is absolutely no proof on the part of the defendants to show that the Plaintiffs are excluded from possession of the suit schedule property. The mere fact that the Plaintiffs are closely related persons of the daughters of the said Seeniammal is not a bar in seeking partition and has nothing to decide the law in case on hand as they are the purchasers of 3/5th share from the actual owners. Merely because plaintiffs have left out some minor facts in the plaint, it cannot be construed as suppression. Even assuming if there is any suppression, it acts against the plaintiffs only in case of discretionary reliefs. In the present case, the plaintiffs have come forward seeking their legal right 15/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 of partition and therefore suppression of facts cannot be a ground for rejecting their claim.
12. Relying upon the case of Hema Ammal & Others v.
Ganapathy Gounder and Another reported in (2014) 2 MLJ 683, he submitted that, if any of the co-sharer executes a sale deed in respect of the entire extent of a property including the extent of the other co- sharer and if the latter has signed in the said sale deed as an Attesting Witness, his shares are not binding in the sale unless he has signed the document as an Executor. He further relied upon the case of Vidya Devi v. State of Himachal Pradesh and Others reported in (2020) 2 SCC 569 and submitted that the citizens should not be deprived of their Property save by authority of law as guaranteed under Article 300A of the Constitution of India. Relying upon the judgment of the division bench of this Hon'ble Court in the case of K.A.Selvanachi and Another V. Dr.S.R.Sekar and another reported in 2003(1) CTC 745, he submitted that mere attestation to a document does not mean that attestor had knowledge of such contents of the documents and pressed for allowing the appeal.
13. Per contra, the learned Special Government Pleader, Mr. Muthu Vijayan, appearing for the first and second respondents, 16/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 submitted that the plaintiffs have not approached the Court with clean hands. Contending the averments in para 4 of the plaint as false, the learned Special Government Pleader submitted that the plaintiffs ought to have proved the contents of the power of attorney executed and registered by Chellamal and Selvi with respect to the suit property in favour of one Madakkan Nadar, claiming right under their mother, Seeniamal and claiming to be in possession and enjoyment, which has been marked as Exhibit A-5. Pointing out the fact that, in the said Power of Attorney, that is, Exhibit A-5 executed by Selvi and Chellamal, both her brothers, namely, Sekar and Chellappa, have stood as attesting witnesses, the learned Special Government Pleader submitted that both the brothers, namely, Sekar and Chellappa of Chellamal and Selvi, have participated in the entire process of execution and registration of the Power of Attorney marked as Exhibit A5. He further submitted that, the plaintiffs have miserably failed to prove that, no sale consideration has passed as far as the Sale Deed executed by the Power of Attorney Madakkan Nadar on 18.04.1994 which has been marked as Exhibit A-7 is concerned and the same has not been proved in terms of Order 6, Rule 4 of the Code of Civil Procedure, 1908. He categorically contended that after a lapse of 20 years, the plaintiffs cannot claim that sale consideration did not pass.
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14. He further submitted that the suit property has been gifted to the Government in terms of Section 122 of the Transfer of Property Act and the same has been acted upon and mutation has been effected in favour of the Government and the transfer has been effected as required by Section 123 of the Transfer of Property Act, 1882. He categorically contended that Exhibit A-3 Sale Deed dated 10.10.2013 would reveal that, the plaintiffs are relatives to Chellamal and Selvi and the same would suffice to infer that the said sale deed has been created by the plaintiffs. Pointing out the fact that, there is no pleadings that the plaintiffs were in joint possession with the defendants, he contended that suit for partition is not maintainable. He further insisted that, Court Fee paid jointly is also not legally sustainable and that separate Court Fee ought to have been paid under Section 37 of the Court Fee Act. Strongly contending that the suit is barred by limitation, the learned Special Government Pleader submitted that the suit will fail on limitation grounds alone and pressed for dismissal of the Appeal Suit.
15. The learned counsel Mr. Lakshmi Shankar appearing for the 3rd defendant submitted that, the suit was filed for partition by the plaintiffs claiming that they have purchased 3/5th share in the suit property from the 3 out of the 5 legal heirs of one Seeniammal to whom the property admittedly belonged originally. The suit was resisted by the 18/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 State and the Panchayat claiming that the daughters of Seeniammal had given Power of Attorney with respect to the entire property in the year 1994, attested by the brothers and it was sold in the year 1994 itself to a third party who gifted the property to the State in the year 1997. The attestors of the 1994 Power of Attorney colluding with their close relatives who are the plaintiffs have created the 10.10.2013 Sale Deed suppressing the above facts and on that basis, this suit is filed. The right is lost by limitation and the parties are estopped. The State and the Panchayat are in exclusive possession from 1997.
16. The Trial Court dismissed the suit as barred by limitation on the finding that the sellers to the plaintiffs who are the attestors to Power of Attorney are clearly estopped and they are close family members. Plaintiffs, as prudent persons ought not to have purchased the properties after knowing that the entire property now belongs to the Government. They should have also enquired as to how Seeniammal's son Chellappa and Sekar signed the Power of Attorney (Ex.A-5) as attesting witness and as identifying witnesses and inspite of that how they are coming forward to sell the properties again after 20 years. There is absolutely no pleadings or explanation about these facts and these arise serious questions about the 10.10.2013 Sale Deed from the recitals in the document itself. In the Sale Deed (Ex.A-3) totally artificial 19/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 and make believe recitals are made as if the property is being jointly enjoyed by the sellers and Selvi and Chellammal. Why the plaintiffs are purchasing only an undivided 3/5th share and why they have not asked Chellammal and Selvi also to sell their 2/5th share is an intriguing question.
17. Moreover, when P.W-1 admits that, he enquired Selvi and Chellammal before this purchase and that they admitted that they have already sold their shares, in the light of the P.W-1's evidence, every recital in Ex.-B3 Sale Deed is a false recital, knowingly and intentionally made. He further submitted that in the facts and circumstances of the case, an attestation by the two brothers attesting the document executed by their sisters, amount to more than mere attestation, is also well settled by various judgment of this Honourable Court, 87 LW 176 Ramasamy Gounder vs. Ananthapadmanabha Iyer and 100 LW 363 K.Nagarathinam vs. Rajammal. P.W-2 was initially trying to deny even the factum of attestation completely but he was exposed in further cross that he knew about the transaction and it was agreed. But he would say only 2 shares were agreed to be alienated. But this is a lame statement and the entire family was aware and stood by and affirmed the transactions for 20 years can be inferred from the entire evidence on record, the circumstances and the conduct of the parties 20/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 and their inter-se relationship and the artificial recitals in the sale deed. Therefore, by attestation they are clearly estopped and they are consenting parties.
18. He further submitted that, even in the plaint, there is no plea that the plaintiff and defendants are in joint possession of the property. During evidence it is admitted that it is the Panchayat which is in actual possession of the property, P.W-1 states that it is for past 5 years and P.W-2 states that it is for the past 3 years. The plaintiffs were not sure to plead that their vendors were actually in possession at any point of time from 1994. Very artificial and baseless plea has been made in the plaint that the plaintiffs and the other legal heirs of Seeniammal are in joint possession. This is clearly a false plea, as established by the admissions of P.W-1 to the effect that he knew Chellammal and Selvi alienated their shares. Thus, the contentions raised in the appeal that, Panchayat has no locus-standi is baseless. Since there is a cause of action, the plaintiffs themselves have filed the suit against Panchayat also and it is clearly admitted in the evidence that Panchayat is in possession.
19. Their contentions that from the evidence of Tahsildar, there is no official handing over the property to Panchayat is of no avail and 21/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 without substance. Actual possession that is admitted by the plaintiff is in favour of the Panchayat. Further there is no conflict of interest between Government and the Panchayat. The plaintiffs have not thought in fit to examine Chellammal and Selvi in this suit on their side to place on record before the Court how and under what circumstances the Power of Attorney was executed by them. The parties being related with Chellammal and Selvi admittedly in good terms, the non- examination of those 2 persons requires adverse inference to be drawn against the plaintiff's case. The non-examination of other attestor to Ex.A-5 Power of Attorney who has executed Ex.A-3 sale deed (P.Sekar) also needs adverse inference to be drawn against plaintiffs. The Trial Court has elaborately considered all the aspects of the matter and has rendered clear findings. These findings have not been assailed in a serious manner in the grounds of appeal and pressed for dismissal of appeal.
20. The points for consideration are as follows:
i) Whether the learned Trial Court erred in concluding that, the mere fact of attestation by other co-owners in the General Power of Attorney executed by two co-owners, namely, Chellamal and Selvi, with respect to the suit property would not suffice to conclude that a oral 22/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 partition was effected with respect to the shares of the female children of Seeniammal?
ii) Whether the learned Trial Court erred in concluding that the suit is not bad for partial partition?
iii) Whether the learned Trial Court erred in directing the plaintiffs to value and pay the Court Fee under Section 37 (1) of the Tamil Nadu Court Fee and Suit Validation Act?
iv) Whether the suit as framed is maintainable?
v) Whether the judgment and decree dated 30.08.2017 in O.S.No. 1 of 2014 on the file of the Additional District Court, Tenkasi is liable to be interfered with?
vi) To what reliefs, the parties are entitled to?
21. The appellants are the plaintiffs in the original suit. On the side of the plaintiffs, PW-1 and PW-2 were examined and Exhibits A-1 to A-17 were marked and on the defendant's side DW-1 to DW-4 were examined and Exhibits B-1 to B-4 were marked.
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22. Even according to the case of the plaintiffs, the suit property originally belonged to one Seeniammal. Her husband pre-deceased her. She died intestate in the year 1989. One of her son, namely Balasingam also pre-deceased her. She had three sons and two daughters, namely, Balasingam, Chellappa, Sekar, Chellammal and Selvi. Balasingam's wife, namely Pappa alias Sivakami also died before Seeniammal. After the death of Seeniammal, the surviving children of Seeniammal and the grandchildren of the pre-deceased son, namely Balasingam inherited the suit property. A registered Power of Attorney marked as Exhibit A-5 is alleged to have been fraudulently obtained by one Madakkannu, son of Subbaiah, fraudulently from the two daughters of Seeniammal, namely Chellammal and Selvi, by misrepresenting the same as lease deed.
23. Though the two daughters are entitled only to two-fifth share in the said property, the General Power of Attorney was alleged to have been executed with respect to the entire suit property. The said Power of Attorney holder, Madakkan, executed a sale deed dated 18.04.1994 in favour of another Madakkannu, son of Subbaiah, for a sum of Rs. 4,890/- (Rupees Four Thousand Eight Hundred and Ninety only) and the same is marked as Exhibit A-7. On 15.09.1997, a Gift Deed was 24/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 executed by Madakkannu, the purchaser, in favour of the State Government, thereby gifting the suit property to the Government of Tamil Nadu. The said Gift Deed dated 15.09.1997 has been marked as Exhibit A-6. The contention of the plaintiffs is that the said General Power of Attorney marked as Exhibit A-5, the Sale Deed dated 18.04.1994 marked as Exhibit A-7 and the Gift Deed dated 15.09.1997 marked as Exhibit A-6 will not bind the shares of the other heirs of Seeniammal, namely the legal heirs of Balasingam, Chellappa and Sekar. It is categorically contended by the plaintiffs that the undivided three-fifth shares belonging to Balasingam, Chellappa and Sekar has been purchased by them on 10.10.2013 from Chellappa, Sekar and the son of Chellappa namely Ganesh and the son of Balasingam namely Balagan and his daughter namely Rajasundari on 10.10.2013 and the same has been marked as Exhibit A-13. For clarity, the genealogy table of Seeniammal is extracted as follows:
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https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 Genealogy Table Seeniammal Selvi Chellammal Chellappa Sekar Balasingam(Died) Sekar Yesudasanraja Ganesan Rajasundari Balagan (Husband) (Son) (Son) (W/o. 2nd plaintiff) (1st Plaintiff) (2nd Plaintiff) Vendors of the Plaintiffs
24. The contention of the defendants is that, there was an oral partition among the children of Seeniammal in which the suit property was exclusively allotted to the share of the two daughters of Seeniammal, namely, Chellamal and Selvi. Hence, those two daughters executed the General Power of Attorney in favor of one Madakkan, on 09.03.1994 regarding the entire suit property. It is also contended by the defendants that both the surviving sons of Seeniammal, namely, Chellappa and Sekar have signed as attesting witnesses in the aforesaid General Power of Attorney. Only on the basis of the said General Power 26/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 of Attorney, Madakkan sold the entire suit property to another Madakkan vide a registered sale deed dated 18.04.1994.
25. Following which, the purchaser gifted the property to the Government of Tamil Nadu for the benefit of the public, vide a registered Gift Deed dated 15.09.1997. From the date of gift, the Government is exclusively in possession and enjoyment of the same through the Kadaganeri village panchayat and the said property has been used by the 3rd respondent as a garbage dump yard, continuously to the knowledge of all the common public including the plaintiffs. The categorical contention of the defendants is that the plaintiffs are not bona fide purchasers for value without notice because they are closely related to the daughters of Seeniammal who have sold the entire suit property to the third party Madakkan in the year 1994. In fact, the first plaintiff Sekar is the husband of the daughter Selvi and second plaintiff Yesudhason Raja is the son of daughter Chellammal.
26. The learned Trial Court proceeded to conclude that, though the major defense of the defendants is that, the original owner Seeniammal possessed many other properties apart from the suit property and, that the total extent of properties belonging to Seeniammal was divided by means of an oral partition, in which her 27/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 daughters, namely, Chellammal and Selvi, were allotted with the suit properties exclusively, the defendants miserably failed to prove the said contention through appropriate documentary or oral evidence. The learned Trial Court categorically recording the evidence of P.W-2, that is, one Chellappa, that is, the son of Seeniammal, that is, the attesting witness in the General Power of Attorney marked as Exhibit-A5 observed that P.W-2 never stated that there was misrepresentation from the power agent, namely, Madakkan, to obtain the General Power of Attorney from Chellammal and Selvi. Though the defendants categorically contended that the brothers of Chellammal and Selvi namely Chellappa and Sekar who signed as attesting witnesses in the aforesaid General Power of Attorney marked as Exhibit A5 fully knew the contents of the said deed, the learned Trial Court categorically observed that the defendants miserably failed to prove that the attesting witnesses had actual knowledge of the recitals in the deed. Further the learned Trial Court proceeded to conclude that it is not necessary for an attester to know the contents of the deed relying upon the decision of this Court in the case of K. A. Selvanachi and another .vs. Dr. S. R. Sekar and another reported in 2003 1 CTC 745. On that basis the learned Trial Court rightly concluded that the defendants miserably failed to establish that there had been an oral partition among the legal heirs of the deceased Seeniammal with respect to the suit properties 28/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 and that the said fact could be appreciated from the attestation of two co-owners in the General Power of Attorney executed by two co-owners with respect to the entire property.
27. Further observing that the defendants have miserably failed to prove how the presence of Madakkan is necessary for the effective adjudication of all the questions involved in the suit the learned Trial Court rightly concluded that the non-joinder of Madakkan Nadar has no consequence in deciding the suit. As far as the question as to whether the suit is bad for partial partition the learned Trial Court proceeded to conclude that the defendants have miserably failed to establish that the deceased Seeniammal possessed more properties apart from the suit properties and bring it on record before the Court and on that basis concluded that the suit is not bad for partial partition and I am not inclined to interfere with the same. Since it is the admitted case of the plaintiffs that the entire suit property has been sold by the General Power of Attorney, namely, Madakkan, in favor of another Madakkan through daughters as early as on 18.04.1994 by the Sale Deed marked as Exhibit A7, and the fact that a careful reading of the pleadings of the plaintiffs would itself be a conclusive proof that the exclusive immediate possession of the property is admittedly with the defendant, the learned Trial Court rightly directed the plaintiffs to value the suit property and 29/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 pay the Court Fees under Section 37 (1) of the Tamil Nadu Court Fees and suit Valuation Act within three (3) months from the date of judgment.
28. The first plaintiff was examined as P.W-1. In his evidence he gave up the case in the plaint regarding misrepresentation in obtaining Exhibit A5 Power of Attorney and want of consideration in respect of Exhibit A7 Sale Deed. He admitted that neither complaint nor any legal proceedings were initiated by Chellamal and Selvi claiming so. P.W-1 further admitted that, there had been a name board in the suit property which was erected by the third defendant panchayat. But according to him it is there only for 5 years. He also admitted that he had read Exhibit-A5 Power of Attorney and he was also aware of the fact that Chellappa and Sekar had attested the said Power of Attorney. In addition to that he also admitted that the second plaintiff is the son-in-
law of Balasingham and grandson-in-law of Seeniamal. He further admitted that, an encumbrance certificate was obtained before sale for 40 years in which the 1994 sale and the 1997 gift were not reflected. However, it is pertinent to record here that no such encumbrance certificate lacking the entries with respect to the 1994 sale and 1997 gift has been produced by P.W-1 before the learned Trial Court. P.W-1 also admitted that he purchased the suit property fully knowing about 30/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 the sale in favour of Madakkan and gift in favour of the Government.
29. He also admitted that, the husband of Seeniamal, namely, Paul Nadar, had other properties as well. P.W-1 also admitted that when the panchayat cleared the property for erecting a transformer they enquired and upon that only they learnt that the two sisters have alienated the entire properties and only after that they have obtained the sale deed and have filed the suit. Hence, I have no hesitation to observe that the evidence of P.W-1 itself would falsify the case of the plaintiff more particularly about obtaining Exhibit-A5 by misrepresentation, then Exhibit-A7 as sale without consideration and Exhibit-A6 gift deed as invalid and inoperative document and that only on obtaining Exhibit-A2 encumbrance on 29.11.2013 they came to know about the Power of Attorney and the alienations in the year 1994 and 1997. Even according to his own admission before the purchase in the year 2013, that is, on 10.10.2013 they have availed an encumbrance certificate in which the 1994 sale and 1997 gift were not reflected. Obviously the said encumbrance certificate has not been produced by P.W-1 before the learned Trial Court.
30. That apart, the evidence of P.W-1 clearly shows that the plaintiffs are close relatives of the sellers and the original vendors, 31/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 Chellamal and Selvi. This itself would be a conclusive proof for the fact that the plaintiffs are not bona fide purchases for value without notice of the prior alienations. The interpretation Clause of Section 3 of the Transfer of Property Act explains “a person who is said to have notice of a fact”. In the explanation to the aforesaid interpretation, it could be clearly understood that, where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in or such property shall be deemed to have notice of such instrument as from the date of registration. In view of the same, it can be categorically concluded that the plaintiffs are the persons who have actual notice of the Exhibit-A5 Power of Attorney, Exhibit-A7 Sale Deed dated 18.04.1994 and Exhibit-A6 Gift Deed dated 15.09.1997 since all the aforesaid three documents were registered instruments. Absolutely having constructive notice as to the Power of Attorney, Sale Deed and Gift Deed which covers the entire suit property, the plaintiffs have gone to the extent of getting a Sale Deed with respect to the property which had gone out of the family as early as in the year 1994.
31. The fact that the first plaintiff is the husband of Selvi who is the executant of Exhibit-A5 Power of Attorney and the second plaintiff is the grandson in law of the original owner Seeniammal and that he is the 32/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 husband of daughter of Balasingam and son of Seeniammal who executed the Exhibit-A5 Power of Attorney would also amplify the collusive and brazen manner in which the Sale Deed dated 10.10.2013, that is, Exhibit-A3 has been registered. The certified copy of Exhibit-A5 Power of Attorney has been applied and obtained by Chellamal on 18.09.2013. Then the copy of Exhibit-A18 Gift Deed in favor of the Government has been applied and obtained by Yesudas Raj, that is, the second plaintiff on 05.09.2013. In addition to that the copy of the Sale Deed in favor of Madakkan, that is, Exhibit-A7 has been applied and obtained by the first plaintiff on 06.09.2013. The sequence of these events will only highlight the fact that the entire family including the plaintiff fully knew the fact that the said property has been sold out as early as in the year 1994 and they have obtained the copy of documents during September 2017. Obviously when some of the co-owners alienated a particular property, the non alienating co-owners, if they do not choose to challenge the said document, with respect to their share within a period of 12 years, in that case they will lose their right over the same. Article 110 of the Limitation Act will squarely apply to the facts and circumstances of this case.
32. The learned Trial Court observing the fact that the purchaser Madakkan and the Government of Tamil Nadu, that is, the 1st defendant 33/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 had been in exclusive possession of the suit property from 1994. Observing that there is no title deed in favor of the vendors of the plaintiffs from 1994 to till date and that the property is under the care of the third defendant who has been using the same as garbage dump yard, the learned Trial Court proceeded to observe that, the capacity by which the third defendant is in possession of the suit property on behalf of the first and second defendants, is totally immaterial. Observing that both P.W-1 and P.W-2 in their evidence had admitted the presence of notice board putting up a warning to the public against illegal mining of soil from the suit property for a long time even before the plaintiffs purchased the three-fifth shares from the other co-owners vide Exhibit A3, the learned Trial Court concluded that the other co-owners failed to care to object the alienation or possession by stranger though they had knowledge about the same by attestation in the General Power of Attorney.
33. In addition to that, in view of the admission made by both P.W-1 and P.W-2 as to the presence of notice board in the suit property for a long time, I have no hesitation to concur with the learned Trial Court's conclusion that the co-owners right to recover possession is barred by limitation, by observing that when the right to sue is barred by limitation against the vendors the suit for partition by the vendees is 34/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 also definitely barred. Hence, I am not inclined to interfere with the conclusion arrived at by the learned Trial Court that the suit is barred by Article 65 of the Limitation Act. Since the conclusion of the learned Trial Court that the suit is barred by limitation is upheld by this Court the findings of the learned Trial Court as well as the issues 5, 6, 7 and 8 as to the entitlement of the plaintiffs for the relief of permanent injunction and partition also fails as observed by the learned Trial Court. Though the learned counsel for the appellant categorically relied upon the case of Vidyadevi versus State of Himachal Pradesh and others reported in (2020) 2 SCC 569 and the relevant portion of the same is extracted as follows:
“12.9. In a democratic polity governed by the rule of law, the State could not have deprived a citizen of their property without the sanction of law. Reliance is placed on the judgment of this Court in Tukaram Kana Joshi v. MIDC wherein it was held that the State must comply with the procedure for acquisition, requisition, or any other permissible statutory mode. The State being a welfare State governed by the rule of law cannot arrogate to itself a status beyond what is provided by the Constitution.
12.10. This Court in State of Haryana v.
Mukesh Kumar held that the right to property is now 35/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 considered to be not only a constitutional or statutory right, but also a human right. Human rights have been considered in the realm individual rights such as right to shelter, livelihood, health, employment, etc. Human rights have gained a multi-faceted dimension.
12.11. We are surprised by the plea taken by the State before the High Court, that since it has been in continuous possession of the land for over 42 years, it would tantamount to “adverse” possession. The State being a welfare State, cannot be permitted to take the plea of adverse possession, which allows a trespasser i.e. a person guilty of a tort, or even a crime, to gain legal title over such property for over 12 years. The State cannot be permitted to perfect its title over the land by invoking the doctrine of adverse possession to grab the propety of its own citizens, as has been done in the present case.”
34. However, the said case is not applicable to the facts and circumstances of this case because this case is not one of forcible dispossession of the suit property. In this case, the entire property has been transferred on the basis of Power of Attorney in favour of one Madakkan, that is, Exhibit-A7 as early as on 18.04.1994. Hence, there is an instrument of transfer. Thereafter, Madakkan gifted the same in favour of the Government on 15.09.1997 and based on these 36/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 documents the defendants have entered into possession of the suit property and have enjoyed the same in their absolute right. Hence, this is not a case of forcibly taking possession of the property of private persons by the Government and the said case is not applicable to the present case. The Trial Court has meticulously considered all the aspects based on the evidence and documents submitted before the same and has rightly arrived at a proper conclusion and hence, this court is not inclined to interfere with the same.
35. In the result, the Appeal Suit is dismissed and the impugned judgment and decree passed in O.S No. 1 of 2014 dated 30.08.2017, on the file of the Additional District Court (Fast Track Court), Tenkasi, is hereby confirmed. Both the parties are directed to bear their own costs. Consequently, connected miscellaneous petition is closed.
30.05.2024 NCC : Yes / No Index : Yes / No Internet : Yes Sml To
1. The Additional District Judge(Fast Track Court), Tenkasi.
2. The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
37/38 https://www.mhc.tn.gov.in/judis A.S.(MD)No.246 of 2021 L.VICTORIA GOWRI, J., Sml A.S.(MD)No.246 of 2021 30.05.2024 38/38 https://www.mhc.tn.gov.in/judis