Madras High Court
Chellappa vs S.Peria Mondi on 27 November, 2018
Bench: S.S.Sundar, C. Saravanan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.11.2018
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
and
THE HONOURABLE MR.JUSTICE C. SARAVANAN
AS(MD).No.112 of 2015 and CMP(MD).No.1307 of 2017
SA(MD).Nos.319 and 320 of 2015 and MP(MD).Nos.1 and 1 of 2015
in SA(MD).Nos.319 and 320 of 2015 and
CMP(MD).No.6735 of 2018 in SA(MD).No.320 of 2015
Cross Objection (MD).No.53 of 2017
AS(MD).No.112 of 2015
1.Chellappa
2.Pavun
3.Karuppayee
4.Chinnamma
5.Chinnaponnu : Appellants
Vs.
1.S.Peria Mondi
2.Priya Karuppan
3.Raja : Respondents
PRAYER : This Appeal Suit is filed under Section 96 of Civil
Procedure code against the Judgment and Decree dated 15.12.2014
passed in O.S.No.113 of 2011 on the file of the V Additional District
Judge, Madurai.
For Appellants : Mr V. Maragathavel
For R1 : Mr. R. Suriya Narayanan
For R2 and R3 : Mr. K. Irulappan
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2
SA(MD).Nos.319 and 320 of 2015
1.Chellappa
2.Pavun
3.Karuppayee
4.Chinnamma
5.Chinnaponnu
6.Periyakaruppan
7.Raja : Appellants
Vs.
S.Peria Mondi : Respondents
PRAYER: These Second Appeals are filed under Section 100 CPC
against the Judment and Decree dated 15.12.2014 passed in A.S.Nos.
20 and 21 of 2014 on the file of the V Additional District Judge,
Madurai.
For Appellants : Mr V. Maragathavel
For Respondent : Mr. R. Suriya Narayanan
Cross Objection (MD).No.53 of 2017 in AS(MD).No.112 of
2015
S.Peria Mondi : Cross objector
Vs.
1.Chellappa
2.Pavun
3.Karuppayee
4.Chinnamma
5.Chinnaponnu
Sonai (died)
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3
6.Periya Karuppan
7. Raja : Respondents
PRAYER : This Cross Objection is filed under Order 41 Rule 22 CPC
against the Judgment and Decree dated 15.12.2014 made in O.S.No.
113 of 2011 on the file of the V Additional District Judge, Madurai.
***
COMMON JUDGMENT
(Judgment of the Court was made by S.S. SUNDAR, J.,) Though these appeals arise out of the different suits, having regard to the fact that the parties are same and the issues are interlinked, this Court is inclined to dispose of these appeals by this common Judgment.
2. The appeal suit in A.S.No.112 of 2015 arises out of the suit in O.S.No.113 of 2011 (which was earlier numbered as O.S.No. 424 of 2007) on the file of the V Additional District Court, Madurai. This suit was filed by the appellants for partition of their 6/10 shares in all the suit properties consisting of three schedules. After filing of the suit, there was also an amendment of plaint to include some of the items, which were shown as item Nos.5 to 8 in III Schedule. The plaintiffs in O.S.No.113 of 2011 are the children of the first defendant in the suit by name Sonai. The second defendant is the elder son of http://www.judis.nic.in 4 the first defendant and brother of the plaintiffs in the suit. The defendants 3 and 4 are also the sons of the first defendant. The suit for partition was thus filed by the children of the first defendant against the first defendant and his three other sons.
3. It is the specific case of the plaintiffs in the suit in O.S.No.113 of 2011 that the suit properties are the joint family properties consisting of first defendant and children. It is also the case of the plaintiffs that several items of the properties were purchased by the first defendant out of the income from the joint family and that all the members including the plaintiffs contributed their physical labours in the cultivation process and that therefore, the suit properties are joint family properties and the plaintiffs are entitled to 6/10 shares. Even in the plaint, it is admitted that the father refused to give any share in the suit properties claiming absolute ownership over the properties and by stating that the suit properties are self acquired properties of the first defendant. After issuing suit notice on 17.05.2007, the suit came to be filed in the year 2007 itself. During the pendency of the suit, the first defendant died on 29.01.2010. However, the first defendant did not file any written statement. During the pendency of the suit, it is stated that http://www.judis.nic.in 5 the first defendant executed a settlement deed in respect of some of the suit items viz., 1, 7 to 9 and 11 to 13 and 21 in the I schedule and item Nos.1,2 and 4 in the II Schedule. Hence, it is the specific case of the second defendant that the first defendant had executed a settlement deed in favour of the second defendant on 31.08.2009 and handed over possession of the properties to him pursuant to the registered settlement deed. Despite the specific stand taken by the second defendant in the written statement about the execution of the settlement deed, the plaintiffs have not filed any reply statement disputing the settlement deed.
4. Later, the plaintiffs filed another suit in O.S.No.539 of 2009 for declaration that the settlement deed executed by the first defendant in favour of the second defendant is null and void and for consequential injunction restraining the first defendant from alienating or incriminating from the suit properties. Further in the plaint in O.S.No.539 of 2009, the plaintiffs have specifically admitted the execution of the settlement deed by the first defendant in favour of second defendant. The specific stand of the plaintiffs in paragraph No.10 of the plaint in O.S.No. 539 of 2009 is relevant and hence, which is extracted hereunder:
http://www.judis.nic.in 6 “10. While the facts are so, the 1st defendant under the inducement of the 2nd defendant has executed a registered Gift Settlement deed infavour of the 2nd defendant in respect of all the suit properties on 31.08.2009. Since all these properties are Hindu Joint Family properties and are belonging to all family members, the 1st defendant has no individual right, title or ownership over the properties and as such, he has no right to execute any document, in favour of any person. The Gift Settlement deed executed by the 1 defendant st dated 31.08.2009 infavour of 2nd defendant is null and void.”
5. It is also relevant to extract the cause of action mentioned in paragraph No.14 of the plaint reads as follows:
“14. The cause of action for the suit arose on 31.08.2009, when the 1st defendant has executed a gift settlement deed in respect of the suit properties infavour of the 2nd defendant and on several subsequent dates when the 1st defendant refused to cancel the deed and at Thandalai and Elavangulam Villages where the suit properly situate within the jurisdiction of this Hon'ble Court.”
6. It is also admitted that the first defendant in the suit in O.S.No.539 of 2009 died even before filing the written statement and therefore, the suit was contested only by the second defendant in the suit. The second defendant filed written statement claiming absolute title over the properties covered by the settlement deed by stating http://www.judis.nic.in 7 that the settlement deed was executed by the father out of love and affection and that he is in possession and enjoyment of the property.
7. Against the plaintiffs in the suit for partition in O.S.No. 113 of 2011, the second defendant has filed another suit in O.S.No. 361 of 2012 for permanent injunction restraining the defendants in the suit viz., plaintiffs and defendants 3 and 4 in O.S.No.113 of 2011, from interfering with his peaceful possession and enjoyment of the suit properties. It is to be noted that the settlement deed which was allegedly executed by the father in favour of his elder son viz., second defendant in the suit for partition was referred to in the plaint in O.S.No.361 of 2012.
8. It is the case of the plaintiff / second defendant in the suit in O.S.No. 361 of 2012 that his father viz., sonai is an absolute owner of the suit properties and that he had executed a settlement deed on 31.08.2009 in his favour out of love and affection. On the basis of the settlement deed, it is the case of the plaintiff in the suit in O.S.No.361 of 2012 that he became the absolute owner of the suit properties. Hence, the suit properties in O.S.No.361 of 2012 are the properties in respect of which the settlement deed was executed by http://www.judis.nic.in 8 the first defendant in O.S.No.113 of 2011 in favour of the second defendant. In the written statement in O.S.No.113 of 2011, the execution of the settlement deed was not denied. But, it was contended that the father had no independent right to deal with properties as they are properties acquired from and out of joint family earnings and joint executions.
9. It is also brought to the notice of this Court that during the life time of the father, the father himself has filed the suit in O.S.No.118 of 2009 and in the said suit, the father viz., first defendant in O.S.No.113 of 2011 claimed absolute owner of the entire properties stating that all the items of the suit properties are his self acquired properties and that they are not joint family properties. Further, it is pointed out that the father had filed the suit in the year 2009, during his life time, after the settlement deed executed by him on 31.08.2009 in favour of the second defendant in the suit in O.S.No.113 of 2011. It is admitted that the suit was latter dismissed as abated, due to the death of the plaintiff viz., first defendant in O.S.No.113 of 2011. It is admitted that the father of the plaintiffs died on 29.01.2010.
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10. Before the trial Court, the plaintiffs have produced Ex.A1 to A7 and the plaintiffs 1 and 2 were examined as PW.1 and PW.2. On behalf of the second defendant Exs.B1 to B3 were marked and the second defendant examined himself as DW.1.
11. The Trial Court after considering the pleadings and documentary evidence held that the suit properties are the self acquired properties of father viz., the deceased first defendant in the suit in O.S.No.113 of 2011 and that the second defendant is entitled to the properties covered under the settlement deed executed by his father, first defendant on 31.08.2009. Taking into account the death of the father and the plaintiffs are the legal heirs of the first defendant, the plaintiffs were given 6/9 shares in respect of all the properties except the properties covered under the settlement deed dated 31.08.2009 and items 7 and 8 in III schedule, which were said to have been purchased in favour of the second defendant's son, who is not a party to the suit. Hence, the suit for partition was decreed except item Nos. 1, 7 to 9 and 11 to 13 and 21 in the I Schedule and item Nos. 1, 2, 4, 7 and 8 in III Schedule. Therefore, the Trial Court passed preliminary decree in respect of 6/9 shares in respect of all other properties.
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12. The suit in O.S.Nos. 539 of 2009 and 361 of 2012 were tried jointly by the learned Principal Subordinate Judge, Madurai and common Judgment was delivered on 01.08.2014. The Trial Court decreed the suit in O.S.No.539 of 2009 as prayed for and the suit in O.S.No.361 of 2012 filed by the second defendant in O.S.No.113 of 2011, for permanent injunction on the basis of settlement deed was dismissed holding that the suit properties are joint family properties and the settlement deed during the pendency of the suit for partition is valid.
13. The second defendant in O.S.No.539 of 2009 and the plaintiff in the suit in O.S.No.361 of 2012 filed appeal suits in A.S.Nos.21 and 20 of 2014 respectively as against the Judgment and Decree in O.S.No. 539 of 2009 and O.S.No.361 of 2012, on the file of the V additional District Judge, Madurai. The Appeal Suit in A.S.No. 21 of 2014 as against the Judgment and Decree in O.S.No. 539 of 2009 was allowed and the Judgment and Decree passed in O.S.No. 539 of 2009 was set aside. Hence, suit in O.S.No. 539 of 2009 for a declaration that the settlement deed is null and void, was dismissed by the lower Appellate Court by the Judgment dated 15.12.2014. Similarly, the appeal suit in A.S.No. 20 of 2014 was also allowed and http://www.judis.nic.in 11 the Judgment and decree of the trial Court passed in O.S.No. 361 of 2012 was set aside and the Suit in O.S.No.361 of 2012 was decreed by granting permanent injunction in favour of the plaintiff in O.S.No. 361 of 2012, who is the second defendant in the suit for partition in O.S.No. 113 of 2011.
14. Aggrieved by the said Judgment and decree of the lower Appellate Court the plaintiffs 1 to 4 and 6 and defendants 3 and 4 in the suit in O.S.No.539 of 2009 have preferred the appeals in S.A.Nos.319 and 320 of 2015 before this Court.
15. The plaintiffs in the suit for partition in O.S.No.113 of 2011 have preferred appeal suit in A.S.No.112 of 2015. In the appeal suit in A.S.No.112 of 2015, the appellants have challenged the Judgment and decree of the suit in O.S.No. 113 of 2011 only in respect of the properties covered by the settlement deed and item Nos. 7 and 8 of III Schedule in O.S.No. 113 of 2011.
16. The learned counsel appearing for the appellants in A.S.No. 112 of 2015 submitted that the settlement deed dated 31.08.2009 is null and void and that the second defendant has not http://www.judis.nic.in 12 proved the said settlement deed in the manner known to law. He further submitted that the first defendant in the suit in O.S.No. 113 of 2011 has not filed any written statement even though he died only on 29.01.2010. According to the learned counsel, the settlement deed dated 31.08.2009 came into light only when the written statement filed by the second defendant in the suit for partition in the year 2010. It is also stated by the learned counsel for the appellants that the father himself during his life time filed a suit in O.S.No.118 of 2009, for permanent injunction in respect of all the properties including the properties covered by the settlement deed dated 31.08.2009. The said suit was filed after the settlement deed alleged to have been executed by the first defendant in favour of the second defendant. In such circumstances the fact that the execution of settlement deed was not disclosed in the plaint in O.S.No.118 of 2009 was also relied upon by the counsel for the appellants. On these factual basis it is submitted that settlement deed was never executed nor acted upon by the father the learned counsel further pointed out from the evidence of DW.1 viz., second defendant in the suit in O.S.No.113 of 2011 that he had no knowledge about the settlement deed and that the settlement deed was handed over to him three months after the settlement deed. It is also pointed out that the http://www.judis.nic.in 13 second defendant has admitted that he did not know as to the place of execution of the settlement deed and as to the time of the settlement deed. Since the second defendant has admitted that he did not know about the attestor and no attestor was examined, the learned counsel for the appellants relied upon these circumstances to show that the settlement deed was never executed by the father and that the second defendant has failed to prove the due execution and validity of the document viz., settlement deed dated 31.08.2009.
17. Apart from the above factual submission the learned counsel also submitted that the settlement deed was executed during the pendency of the suit in O.S.No.113 of 2011. Since the alienation is hit by lis pendens it is submitted that the document is void and it cannot confer any right in favour of the second defendant. The learned counsel also pointed out the settlement deed is vitiated by suspicious circumstances as the father has left his other children in the settlement deed alleged to have been executed by him in favour of the second defendant, his elder son. It is also stated that the second defendant has failed to prove that the document viz., settlement deed was acted upon. The learned counsel fairly submitted before this Court that he is not questioning the finding of the trial http://www.judis.nic.in 14 Court as to the character of the suit property. Since the trial Court has categorically found that the properties are self acquired properties of the first defendant and the findings of the trial Court has been accepted by the plaintiffs in O.S.No.112 of 2015, the only remaining issue to be considered in these appeals is regarding the genuineness and validity of the settlement deed dated 31.08.2009, marked as Ex.B1 in O.S.No.113 of 2011.
18. It is to be pointed out in this regard that the plaintiffs have not pleaded in their plaint questioning or challenging the settlement deed under Ex.B1, dated 31.08.2009. Even though, the second defendant has specifically pleaded in the written statement about the execution of the settlement deed executed by the father in his favour. It is to be noted that the plaintiffs who came to know about the settlement deed, filed independent suit for a declaration that settlement deed is null and void. The execution of the settlement deed dated 31.08.2009 was not disputed. As a matter of fact, a reading of the plaint would clearly indicate that the plaintiffs in O.S.No.113 of 2011 has admitted the execution of the settlement deed. The only plea that was raised even in the suit filed by them, challenging the settlement deed was that the father has no right to http://www.judis.nic.in 15 execute the settlement deed as the properties are the joint family properties of the father and his children. The second point that is raised in the plaint is that the settlement deed was executed due to the inducement of the second defendant. Though this plea is raised it is doubtful whether this can be treated as a specific plea questioning the genuineness and validity of the transaction under Ex.B1. The fact that there is no specific plea of un-due influence or coercion would show that the admission of execution of the settlement deed is absolute and without any qualification or reservation. When the execution of the document is not denied, there is no necessity for the second defendant to examine one of the attesting witness to prove the execution. Section 68 of the Indian Evidence Act clearly states that the execution of the document being admitted there is no requirement of examining any one of the attesting witnesses to prove the execution.
19. The next submission of the learned counsel for the appellants is that the transfer by way of settlement deed dated 31.08.2009 is hit by lis pendens and that the document is in-valid and un-sustainable as the same was executed during the pendancy of the suit. The settlement deed executed by the father was challenged only http://www.judis.nic.in 16 on the ground that the father had no right or title or absolute right to execute the settlement deed in favour of the second defendant. Since the plaintiffs have conceded before this Court that the properties are the self acquired properties of the first defendant there is no lis pending as to the character of the suit properties. Section 52 of the Transfer of Property Act, reads as follows:
“52. Transfer of property pending suit relating thereto – During the pendency in any Court having authority within the limits of Indian excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in questions, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.”
20. The person who purchased the property during the pendency of the litigation has no legal protection to claim title over the property as his right is subject to the verdict of Court. The object behind Section 52 of the Transfer of Property Act is to protect the interest of parties to a litigation. The object is that by alienation during pendency of suit by a person, who is a party to the suit, the claim or interest of another who is also a party in the Suit should not http://www.judis.nic.in 17 be frustrated. The Hon'ble Supreme Court has held that the transfer made during the pendency of litigation is not rendered void and the purchaser can get title subject to the result of the litigation. Hence, this Court is unable to appreciate the contention of the learned counsel for the appellants. Even before the Trial Court, it is seen that the case of appellants is that the properties are purchased by father by his earning as a Teacher. However, it was contended that appellants' grandfather had given him education to secure the job.
Hence, the case of appellants has no legal basis.
21. Having regard to the fact that it has now been conceded before this Court by the learned counsel appearing for the appellants that the suit properties are the self acquired properties of the father viz., first defendant, this Court does not find any substance in the submission of the learned counsel for the appellants relying upon Section 52 of the Transfer of the Property Act. In view of the execution of settlement deed by the father as admitted by the plaintiffs in the suit and it is valid and binding on the plaintiffs, this Court find no reason to interfere with the conclusion of the trial Court regarding the character of the suit property and the validity of the settlement deed.
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22. The learned counsel for the second defendant in the suit in O.S.No.113 of 2011 has filed cross objection in respect of item Nos. 5 and 6 of the III schedule.
23. The learned counsel for the second defendant / cross objectors submitted that he has not raised any objection in the written statement filed before the Trial Court. When the second defendant has not raised an objection as to the availability of the properties nor a plea claiming exclusive ownership over the properties viz., items 5 and 6 in III schedule, this Court cannot entertain a new plea in respect of item Nos.5 and 6 of III Schedule. In the Cross objection, the second defendant / cross objector has raised a ground that the properties referred to as item Nos. 5 and 6 in III schedule were purchased by the second defendant out of his own money in the year 1990 and that they are not liable for partition. It is further submitted that the Cross Objector can produce documents. It is well settled that no amount of evidence can be admitted without pleading. Hence, the Judgment of the trial Court granting relief for partition in respect of item Nos. 5 and 6 of plaint III schedule cannot be challenged in this appeal without any foundation before the Trial http://www.judis.nic.in 19 Court.
24. In view of the admitted position that the second defendant has not raised any plea in the written statement claiming exclusive ownership or title in respect of item Nos. 5 and 6 of the III Schedule property, it is not now open to the cross objector after disposal of the suit to the prejudice of appellants. This Court do not find any reason to interfere with the Judgment of the trial Court insofar as Item Nos. 5 and 6 of the plaint III Schedule is concerned.
25. Insofar as item No.7 is concerned, the contention of the learned counsel appearing for the appellants is that the second defendant has not produced any document to show that the property is not the property of the first defendant viz., father. The learned counsel appearing for the respondent / second defendant however stated that the plaintiffs did not produce any documents to prove the existence or availability of item No.7. When the second defendant has not raised any plea disputing the existence of item No.7, it is not open to the second defendant to dispute or deny the existence of suit item No.7 of the III schedule. However, this property is covered by the settlement deed. Hence, there is no scope for claiming any right http://www.judis.nic.in 20 by the plaintiffs.
26. Insofar as item No.8 is concerned, it is the contention of the appellants / plaintiffs that the property was purchased in the name of second defendant's son out of the funds provided by the first defendant and that therefore, the Judgment of the Trial Court is erroneous. The plea is that the property described in item No.8 in III Schedule was purchased in the name of the second defendant's son. As a matter of fact the sale deed was executed by the father viz., the first defendant himself as a power agent of the original owner. The learned counsel appearing for the appellants submitted that this property should be treated as the property of the first defendant as the second defendant has not proved by any evidence or source for purchasing the property.
27. From the reading of the written statement filed by the second defendant, the second defendant himself has stated that the said property was purchased in the name of the second defendant's son and that he is not a party to the suit. The plaintiffs want to prove that the item No.8 of the III schedule is a self acquired property of the father. It is for them to come forward with a specific plea as to http://www.judis.nic.in 21 why the property was purchased in favour of the second defendant's son so that it is the property of the first defendant.
28. In the absence of any plea, this Court is unable to accept the case of appellants. It can be presumed that the property has been acquired only for the benefit of the second defendant's son. It is also improper to consider the title of the property without impleading second defendant's son as a party to the proceeding. It was open to the plaintiffs to implead the second defendant's son as a party and then raise the plea that the property was purchased out of the income of the father viz., first defendant in the name of the second defendant's son for the benefit of father. In this regard, it is also relevant to point out that the property purchased by the first defendant in favour of the second defendant's son cannot be treated as joint family property for the following reasons:
(a) The second defendant's son is not a member of the Joint family, so as to exclude the applicability of Benami Prohibition Act.
(b) The acquisition of the first defendant in favour of http://www.judis.nic.in 22 his grand son can also be treated as an acquisition intended for the benefit of the second defendant's son.
(c) Having regard to the facts and pleadings this Court is unable to held that the property purchased in the name of second defendant's son also be include as self acquired property of the first defendant.
(d) In the absence of any specific plea or materials the document is binding between the parties and the legal heirs of father an estopped from questioning the title.
29. As a result, we hold that the findings of Trial Court in O.S.No.113 of 2011 with regard to the character of the properties cannot be assailed. The Judgment and Decree of the lower Appellate Court in A.S.Nos.20 and 21 of 2014 cannot be interfered with. The suit for declaration that Dhana Settlement deed dated 31.08.2009 is null and void in O.S.No.539 of 2009 is liable to be dismissed. The Judgment and decree in suit for injunction in O.S.No.361 of 2012 granting permanent injunction in favour of the plaintiffs therein, who http://www.judis.nic.in 23 is the second defendant in the suit in O.S.No.113 of 2011 cannot be interfered with. In view of factual findings, no question of law arises for consideration in the Second Appeals and there is no substance in the questions of law raised.
30. In the result, the appeal suit in A.S.No.112 of 2015 is dismissed confirming the Judgment and Decree of the Trial Court passed in O.S.No.113 of 2011 on the file of V Additional District Judge, Madurai and accordingly, the Cross Objection (MD).No.83 of 2017 is also dismissed. Both the SA(MD).Nos.319 and 320 of 2015 also dismissed and the Judgment and Decree passed in A.S.Nos.20 and 21 of 2014 on the file of the V Additional District Court, Madurai is also confirmed. No costs. Consequently, connected Miscellaneous Petitions are closed.
(S.S.S.R., J.,) (C.S.N., J.,)
27.11.2018
Index : Yes/No
Internet : Yes/No
trp
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S.S.SUNDAR, J.,
and
C. SARAVANAN, J.,
trp
To
V Additional District Judge, Madurai.
AS(MD).No.112 of 2015 and CMP(MD).No.1307 of 2017 SA(MD).Nos.319 and 320 of 2015 and MP(MD).Nos.1 and 1 of 2015 in SA(MD).Nos.319 and 320 of 2015 and CMP(MD).No.6735 of 2018 in SA(MD).No.320 of 2015 Cross Objection (MD).No.53 of 2017 27.11.2018 http://www.judis.nic.in