Madras High Court
Radhika vs Kutty @ Vediappan on 29 May, 2024
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
S.A.No.654 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.05.2024
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
Second Appeal No. 654 of 2018
Radhika .. Appellant
Versus
1. Kutty @ Vediappan
2. N.Siva
3. M. Mani
4. Lakshmi
5. Periyasamy (Minor),
S/o. Kutty @ Vediappan
6. Sridhar, (Minor)
S/o.Kutty @ Vediappan ...Respondents
Second Appeal filed under Section 100 of Code of Civil Procedure to
set aside the judgment and decree dated 28.11.2017 in A.S.No.32 of 2017 on
the file of the learned Subordinate Judge, Palacode confirming the judgment
and decree dated 11.08.2015 in O.S.No.190 of 2009 on the file of the learned
District Munsif, Palacode.
For Appellant : Mr.R.Selvakumar
For Respondents 2 and 3 : Mrs.V.Srimathi
For Respondents 1, 4 to 6 : No appearance
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S.A.No.654 of 2018
JUDGMENT
This Second Appeal had been filed under Section 100 of Code of Civil Procedure to set aside the judgment of the learned Subordinate Judge, Palacode, dated 28.11.2017 in A.S.No.32 of 2017 confirming the judgment and decree of the learned District Munsif, Palacode, dated 11.08.2015 in O.S.No.190 of 2009.
2. The first Plaintiff in O.S.No.190 of 2009 on the file of the learned District Munsif, Palacode is the Appellant in this Second Appeal. The suit was filed by the Plaintiffs 1 to 4 against the Defendants 1 to 3 for the relief of partition of their 1/5 share against the first Defendant
3. It is the contention of the Plaintiffs in the plaint that the suit properties were ancestral joint family properties of the first Defendant, father of the Plaintiffs. The suit properties were purchased by the first Defendant after selling the properties that he acquired in the oral partition in the family of the first Defendant. Those properties that were allotted to the first Defendant in the family partition in the family of the first Defendant were ancestral joint family properties and from the sale proceeds of those properties, he had purchased the suit properties on 16.06.2004. Also he had executed https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 2 of 30 S.A.No.654 of 2018 Rectification Deed dated 17.12.2004 regarding the sale deed dated 16.06.2004 and also he had acquired property by sale deed dated 18.06.2004. From the date of sale, the first Defendant and the Plaintiffs were in possession and enjoyment of the suit properties. The revenue records for the suit properties stood in the name of the first Defendant. While so, the first Defendant, on his whims and fancies, for his selfish motive, had sold the property without any necessity for the common benefit of the joint family. He failed to maintain the family. He had indulged in immoral activities and for which, he had sold the suit properties to the second and third Defendants. The Plaintiffs 1 and 2 objected the conduct of the first Defendant. He did not heed to the advice of the Plaintiffs 1 and 2 and for his selfish motive and against the common interest of the joint family consisting of wife and children, he had sold the suit properties to the second and third Defendants without any necessity or common benefit of the family of the Plaintiffs. He does not have any exclusive or absolute right to sell the suit properties to second and third Defendants. As per the rights of the minors in the Hindu Joint Family and rights of the co- parceners in the Joint family, the sale by the first Defendant does not bind the Plaintiffs. Therefore, the Plaintiffs had filed the suit for partition against the Defendants 1 to 3, as the sale is not binding on the Plaintiffs. Since the sale by the first Defendant is against the provisions of Hindu Law regarding Joint https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 3 of 30 S.A.No.654 of 2018 family property, the sale by the first Defendant to second and third Defendants is void ab initio.
4. The second and third Defendants filed written statement in which they had claimed that the second and third Defendants filed common representation and disputed the contention of the Plaintiffs stating that the suit properties were acquired by the first Defendant as his self-acquired properties by sale deed dated 16.06.2004 and 18.06.2004 from and out of his own income. From the date of purchase, the first Defendant was in possession and enjoyment of the suit property without any let or hindrance. On 24.08.2009, for the benefit of the joint family, the first Defendant had sold the properties to the second and third Defendants. From the date of purchase by second and third Defendants from 24.08.2009, the second and third Defendants are in possession and enjoyment of the suit properties by paying the dues to various Government Departments including Revenue Department. Therefore, the Plaintiffs do not have any right to claim partition throughout the lifetime of the first Defendant and the suit as framed is not maintainable. The suit is to be dismissed by ordinary and compensatory benefits. The learned District Munsif, Palacode had framed the following issues based on the plaint averments and written statements:
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(i) Whether the suit properties are self acquired properties of the first Defendant?.
(ii) Whether the Plaintiffs are entitled to relief of partition as claimed in suit?
(iii) To any reliefs, the Plaintiffs are entitled?
5. During trial, the first Plaintiff Radhika examined herself as P.W-1 and filed documents Ex.A-1 to Ex.A-6. Ex.A-1 is the certified copy of the sale deed dated 16.06.2004 in the name of the first Defendant. Ex.A-2 is the certified copy of Rectification Deed, dated 17.12.2004. Ex.A-3 is the certified copy of the sale deed dated 18.06.2004 in the name of the first Defendant. Ex.A-4 is the Patta in the name of the first Defendant. Ex.A-5 is the tax receipt for payment of tax for the suit properties. Ex.A-6 is the certified copy of the consent deed executed dated 24.08.2009 regarding the reconveyance of the property to the first Defendant by the purchasers. The third Defendant had examined himself as D.W-1. One Purushothman was examined as D.W-2. On the side of the Defendants, 4 documents were marked as Ex.B-1 to Ex.B-4. Ex.B-1 is the certified copy of the sale deed dated 16.06.2004 (same as Ex.A-
1). Ex.B-2 is the certified copy of the Rectification Deed dated 17.12.2004 (same as that of Ex.A-2). Ex.B-3 is the sale deed dated 18.06.2004 in the name of the first Defendant (same as Ex.A-3). Ex.B-4 is the certified copy of the sale deed dated 24.08.2009 https://www.mhc.tn.gov.in/judis executed ( Uploaded by08:49:34 on: 05/03/2025 first Defendant pm ) in favour of second Page 5 of 30 S.A.No.654 of 2018 and third Defendants. After recording the evidence and on assessment of the evidence, the learned District Munsif, Palacode by judgment dated 11.08.2015 dismissed the suit for partition.
6. Aggrieved by the same, the Plaintiffs had preferred Appeal in A.S.No.32 of 2017 on the file of the learned Sub Judge, Palacode. After hearing the arguments of the learned Counsel for the Appellants and the Respondents and on reassessment of evidence before the trial Court, the learned Sub Judge, Palacode by judgment dated 28.11.2017 dismissed the Appeal in A.S.No.32 of 2017 and confirmed the judgment of the learned District Munsif, Palacode in O.S.No.190 of 2009, dated 11.08.2015. Aggrieved by the same, the first Plaintiff before the learned District Munsif, Palacode in O.S.No.190 of 2009 and the first Appellant in A.S.No.32 of 2017 had preferred this Second Appeal raising grounds that the trial Court as well as the Appellate Court had not considered the documents marked on the side of the Plaintiffs under Ex.A-1 to Ex.A-6 particularly the recitals in Ex.A-1 and Ex.A-6 as well as the documents marked on the side of the Defendants as Ex.B-1 to Ex.B-4. The learned trial Judge, the learned District Munsif, Palacode failed to appreciate the documents particularly Ex.A-1, Ex.A-2 and Ex.A-6 and had relied only on the cross-examination of first Plaintiff as P.W- https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 6 of 30 S.A.No.654 of 2018
1.
7. The Second Appeal had been admitted and the following Substantial question of law is framed for consideration:-
Whether the Courts below are right in not considering Ex.A-1 in proper perspective, in that the said sale deed executed by the father and brothers of the first Defendant in which the recitals had been clearly made that the said property (Item Nos. 1,4,5 and 7) they are selling are the ancestral properties which would unsuit second and third Defendants?
8. In the light of the substantial question of law raised by this Court, the learned Counsel for the Appellant Thiru.R.Selvakumar submitted his arguments. The learned Counsel for the Appellant submitted that the Plaintiffs had marked Ex.A-1 in which the sale deed is of the year 2004. He invited the attention of this Court to Ex.A-1:
“15/06/2004k; njjpapy; jh;kg[hp khtl;lk;. ghyf;nfhL tl;lk;. nghLj;jk;gl;o m";ry;. g{fhdms;sp k$uh. g{jpg;gl;o fpuhkj;jpy; FoapUf;Fk; gr;rpag;gd; Fkhuh; Fl;o (v) ntoag;gd; mtu;fSf;F. jh;kg[hp khtl;lk;. ghyf;nfhL tl;lk;. nkw;go k$uh. nkw;go fpuhkj;jpy; FoapUf;Fk; rpdd ; bfhse;ij (v) ntor;rp Fkhuh; gr;rpag;gd;/1. 1 eghpd; ikdh; kf;fs; ntor;rp (v) yl;Rkzd; 2/ rptd; 3/ 2 eghpd; ikdh; kf;fs; uF. 4 g{gjp. 5 (,e;j 4. 5 yf;fkpl;l ikdh;fSf;F fhh;oaDk; rtul;rid fu;j;jht[k; je;ija[khd 2 egUk;) Chpy;; FoapUf;Fk; rpdd ; bfhse;ij (v) ntor;rp Fkhuh; g{td; 6. 6 yf;fkpl;lthpd; ikdh; Fkhuh; ntoag;gd;/ 7 (,e;j 7 yf;fkpl;l ikdUf;F fhh;oaDk; rtul;rid fu;j;jht[k; je;ija[khd 6 egUk;) Mfpa eh';fs; vGjpf; bfhLj;j g["i ; r epy Rj;j fpuag; gj;jpuk; vd;dbtd;why;. ( Uploaded on: 05/03/2025 08:49:34 pm ) https://www.mhc.tn.gov.in/judis Page 7 of 30 S.A.No.654 of 2018 v';fspy; 2 egUf;F gpJuh$pjkha; ghfk; K:yKk;. kw;wth;fSf;F gpJuh$pjkha; ghj;jpag;gl;L v';fs; brhe;j Rthjpd mDgtj;jpy; ,Ue;J tUk; moapy;fz;l brhj;ij eh';fs; ,d;W v';fs; FLk;g mgptpUj;jp bryt[f;fhft[k;. ntW brhj;J th';Ftjw;Fk;. ikdh;fs; guhkhpg;g[ bryt[f;fhft[k; ntz;o j';fSf;F U/29.100/- ,Ugj;jp xd;gjhapuk[; EhW U:gha;f;Fk; Rj;jf; fpuaKk;. ,d;nw RthjpdKk; bra;J tplL; fpuaj; bjhif g{uht[k; buhf;fkha; bgw;wf; bfhz;lgoahy; ,dp ,e;j fpuar; brhj;Jf;Fk; v';fSf;Fk; v';fSila Kd;gpd; thhpRfSf;Fk; ahbjhU ghj;jpaKk; rk;ke;jKk; mf;Fk; gpd;bjhlu;r;rpa[k; fpilahJ/ ,dp ,e;j fpua brhj;ij jh';fns jhthjp tpf;fpua';fSf;F ghj;jpag;gl;L rh;t Rje;jpukha; Rfj;jpy; Mz;lDgtpj;J bfhs;s ntz;oaJ/ ,e;j fpua brhj;jpd; kPJ tpy;y';fk;. jfuhW. nfhh;l; tptfhu';fs;. Fld; ghf;fp vJt[k; ,y;iy/ ,e;j brhj;J tupfs;. gl;lhit j';fs; bgaUf;F khw;wpf;bfhs;s ntz;oaJ. mg;go VjhtJ tpy;y';fk; ,Ue;jhy; ,itfis eh';fns v';fs; brhe;j brytpy; Kd;epd;W jPh;j;J ju flikg;gl;lth;fs;. Vd v';fs; KG kd rk;kjpapy; vGjpf;bfhLj;j g["i ; r epy Rj;jf;fpuag; gj;jpuk; rup/ brhj;J tptuk;
ju;kg[hp. ju;kg[hp ,id/2 ghyf;nfhL tl;lk;. g{fhdms;sp fpuhk rh;nt be/566/8 g[/bcw/0/12/5 jP/1/06 ,jd; g[/V/0/28 brd;l; cs;s tptrha epyk; ,jw;F brf;Fgj;jp tptuk;;. uhkh; (v) thsp epyj;jpw;F fpHf;F. tlf;F. Rptd; epyj;jpw;F nkw;F. ntoag;gd; epyj;jpw;F bjw;F ,jd; kj;jpapy; nkw;go tptrha epyk; g{uht[k;
,Jt[k; rh;nt be/599/9 ,jpy; fpzh; mo epyk; cs;gl g[/v/0/09 ¼ brd;l; cs;s epyk; g{uht[k;. ,jpy; ,Uf;Fk; fpzh; 1y; ngh;ghjp ghj;jpak;. ,Jt[k;. rh;nt be/584-12 ,jpy; fpzh; mo epyk; cs;gl g[/V/0/01 brz;l; cs;s epyk; ,jpy; ,Uf;Fk; fpzh; 1y; 8y; 1 g';F ghj;jpak; ,jw;F jPlL ; jPly;/ thhp. https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 8 of 30 S.A.No.654 of 2018 tha;fhy;. fpzh; jz;zPh; ghj;jpak; ,Jt[k; rh;nt be/564-6 g[/bcw/0/02/0 kP/0/06 ,jd; g[/v/0/05 brz;l; cs;s tptrha epyk; ,Jt[k;/ rh;nt be/566-5 g[ bcw/0/05/0 fP/0/25 ,jd; g[/V/0/12 brd;l; cs;s tptrha epyk; Mf bkhj;jk; g[/V/0/17 brd;l; cs;s tptrha epy';fs; xnu fhf;fha; ,Ug;gjhy; brf;Fge;jp tptuk;. Rpdd; gps;is (v) thsp epyj;jpw;F fpHf;F. uhkh; (V) thsp epyj;jpw;F nkw;F. bjw;F. Bghpadgad; (v) ntor;rp epyj;jpwF tlf;F ,jd; kj;jpapy; nkw;go tptrha epy';fs; g{uht[k; nkw;go epyj;jpw;F fpzw;wpypUe;J fhl;lk;kd; nfhtpy; tiu tha;fhy; ghj;jpaKk;. NtW epyj;jpw;Fk; jz;zPh; gha;j;Jf;bfhs;Sk; ghj;jpaKk;. ,itfSf;F khKyhf nghfij tHpeil. fhy;eil ghj;jpa';fSk; ,ju <!;bkd;l; ghj;jpad;fSk; jhd; nkw;go fpuaf; bjhiff;F j';fSf;F fj;jf; fpuaKk;. ,tnw fthjpdKk; bra;jpUg;gJ/ ,e;j brhj;J g{fhd ms;sp g";rhaj;JfSk;. ghyf;nfhL gdpaDf;Fk; rk;ke;jg;gl;ljhFk;”
9. Therefore, it is the contention of the learned Counsel for the Appellant in the Second Appeal that in the recitals it is stated that the father of the purchaser, the first Defendant, the father of the first Defendant and the brothers of the first Defendant had sold the properties to the first Defendant which is the ancestral property of the paternal grand father and paternal uncles of the Plaintiff. In the recitals, it is mentioned that the properties were enjoyed in common by the sellers and the buyer/first Defendant. For meeting out the urgent family expenses of the joint family, the paternal grand father and paternal uncles of the first Plaintiff had sold the property to the first Defendant. It formed part of the ancestral joint family properties which were partitioned earlier therefore https://www.mhc.tn.gov.in/judis the on:
( Uploaded nature of08:49:34
05/03/2025 the property
pm ) acquired by the first
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S.A.No.654 of 2018
Defendant is from the co-sharers of the first Defendant. The properties were ancestral joint family properties in S.Nos.564/6, 564/7, 564/9, 566/5, 566/8A, 566/9B and 566/9 (new Sub Division S.No.566/9A). Ex.A-6 is the Consent Deed executed between first Defendant and second and third Defendants. As per the recitals in the Consent Deed, the second and third Defendants in O.S.No.190 of 2009 had purchased the property for Rs.6,00,000/- in S.Nos.564/6, 564/7, 564/9, 566/5, 566/8A, 566/9B and 566/9 (new Sub Division S.No.566/9A) from the first Defendant, Kutty @ Vedhiyappan, S/o.Pachaiyappan in which it is stated that for Rs.6,00,000/-, the first Defendant had to pay 1% as interest for two years and after two years, if he does not pay Rs.6,00,000/- along with interest, the possession of the property shall be handed over to the second and third Defendants. Till such time, the possession of the property is with first Defendant.
10. It is the further contention of the learned Counsel for the Appellant in the Second Appeal that on careful reading of the recitals in Ex.A- 6, it is nothing but a mortgage deed even though styled as “Consent Deed”. The purchasers had consented to retain the possession with the seller, if the seller does not repay Rs.6,00,000/- along with interest within two years, the second and third Defendants have absolute right over the property. Possession https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 10 of 30 S.A.No.654 of 2018 has to be handed over by the first Defendant to the purchasers, second and third Defendants. The learned trial Judge failed to consider the recitals in Ex.A-1 and Ex.A-6.
11. The learned trial Judge had on consideration of the oral evidence of P.W-1 failed to appreciate the documents marked by the Plaintiff, P.W-1 and thereby misdirected himself and dismissed the suit as the Plaintiff had not proved the claim of ancestral nature of property. If the learned Judge had carefully read the recitals in Ex.A-1, the learned Judge would have come to a conclusion that the co-sharers of the first Defendant, that is the father, brothers and also the uncles of the first Defendant had sold the ancestral joint family property to the first Defendant. Therefore, the nature of the property in the possession of first Defendant was nothing but ancestral property. Therefore, the judgment of dismissal recorded by the learned District Munsif, Palacode in O.S. No.190 of 2009 is against the weight of evidence.
12. In civil cases, the appreciation of evidence involves appreciation of documentary evidence also. The Plaintiff had marked Ex.A-1 which shows the nature of the property as ancestral property of the father's father and his siblings of the Plaintiffs which was sold to first Defendant by the father's https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 11 of 30 S.A.No.654 of 2018 father along with the brothers of first Defendant. In the recitals in Ex.A-1, it is clearly stated that the other sharers are selling it to the sharer within the family to protect the nature of the property as joint family property. The learned Judge had failed to consider those recitals and had ignored the documentary evidence and had merely appreciated the oral evidence and arrived at a conclusion that the Plaintiffs failed to prove the nature of the property. Therefore, the judgment of the learned District Munsif in O.S.No.190 of 2009, dated 11.08.2015 ought to have been set aside by the Appellate Judge. The learned Counsel for the Appellant before the Appellate Court, the learned Sub Judge, Palacode had raised memorandum of appeal regarding the same. The learned Appellate Judge, the learned Sub Judge, Palacode in appeal in A.S.No.32 of 2017, dated 28.11.2017 failed to appreciate the grounds of appeal and failed to appreciate the documentary evidence and had accepted the finding of the trial Judge thereby confirming the judgment of trial Judge and dismissed the Appeal.
13. The learned Counsel for the Appellant invited the attention of this Court to the discussion by the learned District Munsif in his judgment:
“2. 3 gpujpthjpfs; jhth brhj;Jf;fs; 1k; gpujpthjpf;F jdpg;gl;l Kiwapy; ghj;jpag;gl;l brhj;Jf;fs; vd;Wk; mjdhy; mtUf;F brhj;Jf;fis tpw;gjw;F chpikapUf;fpwJ vd;Wk;. https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 12 of 30 S.A.No.654 of 2018 mjd; mog;gilapy; 2. 3 gpujpthjpfSf;F 1k; gpujpthjp fpuak; bra;J bfhLj;jpUf;fpwhh; vd;Wk;. mjd; mog;gilapy; fpuak; bgw;w 24/08/2009 k; njjpapypUe;J 2. 3 gpujpthjpfs; jhd;
mDgtpj;J tUfpwhh; vd;Wk;. 1k; gpujpthjpfSf;F brhj;Jf;fshdJ th/rh/1-gp/rh/1. th/rh/2-gp/rh/2. th/rh/3-gp/rh/3 Mfpa Mtz';fspd; mog;gilapy; 1k; gpujpthjpf;F jdpg;gl;l Kiwapy; ghj;jpag;gl;l brhj;Jf;fs; vd bjhptpj;jpUf;fpwhh;/ thjp jug;gpy; jhth brhj;Jf;fshdJ 1k; gpujpthjpf;F mtuJ Flk;gj;jpy; gpJuhh;$pj tha;bkhHp ghf K:ykha; ghj;jpag;gl;l brhj;Jf;fs K:ykhf te;j tUkhdj;ijf;bfhz;L th';fpa brhj;Jf;fs; vd bjhptpj;jpUf;fpwhh;/ Mdhy; 1k; gpujpthjpf;F g{h;tPfkha; kw;Wk; gpJuhh;$pjkha; tha;bkhHp ghf K:ykha; ghj;jpag;gl;l brhj;Jf;fs; vd;d? me;j brhj;Jf;fs; v';F cs;sJ/ mjd; rh;nt vz; kw;Wk; mjd; tp!;jPuzk; vd;d? ve;j fpuhkj;jpy; mike;Js;sJ? mjpy; vt;tst[ tUkhdk; te;jJ nghd;w ve;jtpjkhd jhf;fy;fSk; thjpfs; jug;gpy; bjhptpf;fg;gltpy;iy/ 1k; gpujpthjp g{h;tPf brhj;Jf;fspd; tUkhdj;ijf; bfhz;Ljhd; jhth brhj;Jf;fis tpiyf;F th';fpdhh; vd;gij thjpfs; jhd; epU:gpf;f ntz;Lk; Mdhy; ,t;tHf;fpy; thjpfs; jug;gpy; g{h;tPf brhj;Jf;fs; vit vd;nw thjpfs; bjhptpf;ftpy;iy mjd;K:yk; vt;tst[ tUkhdk; te;jJ vd;Wk; thjpfs; jug;gpy; bjhptpf;fg;gltpy;iy/ nkYk; thjpfs; jug;gpy; 1k; thjpia jtpu ntW ahUk; rhl;rpahf tprhuiz bra;ag;gltpy;iy/ thjpfs; jhth brhj;Jf;fs; g{h;tPf brhj;jpd; K:yk; te;j tUkhdj;ijf; bfhz;L th';fpa brhj;Jf;fs; vd;gJ Fwpj;J thjpfs; jug;gpy epUgpf;fg;gltpy;iy nkYk; th/rh/1-gp/rh/1. th/rh/2-gp/rh/2. th/rh/3-gp/rh/3 nkw;go Mtz';fis ghf;Fk;nghJ 1k; gpujpthjp brhj;Jf;fis jd; bgaupy; jdpj;J fpuak; bgw;wpUg;gJ nghy; cs;sJ nkYk; gp/rh/4. 24/8/2009k; njjpapl;l 2. 3 gpujpthjpfs; bgahpy; cs;s fpua Mtzj;ij ghh;f;Fk; nghJ mjpy; 1k; gpujpthjp jdf;F fpua K:yKk; gpiH jpUj;jy; gj;jpuKk; ghj;jpag;gl;L jd; jdpikahd Rthjpdj;jpypUe;J tUk; brhj;Jf;fis FLk;g brytpw;fhf ntz;o tpw;gid bra;jjhf vGjg;gl;Ls;sJ/ mjd; mog;gilapy; jhth( Uploaded https://www.mhc.tn.gov.in/judis brhj;on:J05/03/2025 f;fs; 08:49:34 1k; gpujpthjpapd;
pm ) jdpg;gl;l Page 13 of 30 S.A.No.654 of 2018 brhj;Jf;fs; vd;nw fUj ntz;oa[s;sJ/ nkYk; thjpfs; jug;gpy; g{h;tPf brhj;jpd; tUkhdj;jpypUe;J 1k; gpujpthjp brhj;Jf;fis tpiyf;F th';fpdhh; vd;gJ epUgpf;fg;gltpy;iy vdnt jhth brhj;Jf;fs; 1k; gpujpthjpf;F ghj;jpag;gl;l jdpg;gl;l brhj;Jf;fs; vd;gjhy; mth; brhj;Jf;fis ntW ahUf;F ntz;LkhdhYk; tpw;gid bra;a chpikapUf;fpwJ/ mjd; mog;gilapy; 1k; gpujpthjp jhth brhj;Jf;fis 2. 3 k; gpujpthjpfSf;F gp/rh/M/4 24/08/2009k; njjpapl;l fpua Mtzj;jpd;go tpw;gid bra;jJ bry;Yk; vd;nw fUj ntz;oa[s;sJ/ vdnt nkw;go brhj;Jf;fs; 1k; gpujpthjpf;F ghj;jpag;gl;l jdpg;gl;l brhj;Jf;fs; vd;W nkw;go vGtpdh 1 jPh;khdpf;fg;gLfpwJ nkYk; jhth brhj;Jf;fs 1k; gpujpthjpf;F ghj;jpag;gl;l jdpg;gl;l brhj;Jf;fs; vd;Wk; mt;thW jdf;F ghj;jpag;gl;l brhj;Jf;fis 1k; gpujpthjp 2. 3 gpujpthjpfSf;F gp/rh/M/4 Mtzj;jpd;go tpw;gid bra;Jtpl;ljpy; thjpfs; jhthtpy; jhth brhj;Jf;fis bghWj;J nfhhpa 5y; 4 g';fhdJ thjpfSf;F fpilf;fjf;fjy;y vd;W nkw;go vGtpdh 2 jPh;khdpf;fg;gLfpwJ/”
14. In the Appeal also, the learned Sub Judge, as Appellate Judge, had failed to re-appreciate the evidence, which is found in paragraphs 8, 9 and 10 of his judgment as follows:
“8. nkw;KiwaPl;lhsh;fs;/thjpfs; jug;gpy; 1k; thjp th/rh/1 Mf tprhhpf;fg;gl;L th/rh/M/1 Kjy; 5 tiuapyhd rhd;whtz';fs; FwpaPL bra;ag;gl;lJ/ th/rh/M/1 kw;Wk; th/rh/M/3 fpiuag;gj;jpuj;jpd; rhd;wpll; efiya[k; th/rh/M/2 gpiHj;jpUj;j gj;jpuj;jpd; rhd;wpl;l efiya[k; ghprPypf;ifapy; jhth brhj;Jf;fis 1k; gpujpthjp 15/06/2004 k; njjpapYk; 18/06/2004k; njjpapYk; th/rh/M/1 fpiuag;gj;jpuj;jy; Vw;gl;l gpiHia bghWj;J 17/02/2004y; Vw;gl;l gpiH jpUj;jy; gj;jpuk; K:yk; fpuak; bgw;Ws;shh; vd;gJ bjhpatUfpwJ/ th/rh/M/1 Kjy; 3 tiuapyhd gj;jpu';fspd; go jhth brhj;Jf;fs; 1k; gpujpthjp bgahpy; ( fpuak;
https://www.mhc.tn.gov.in/judis Uploaded on:bgwg; gl;l08:49:34 05/03/2025 J vd; pm g ) ij bghWj;J cga Page 14 of 30 S.A.No.654 of 2018 jug;gpdh;fSf;Fs; ve;jtpjkhd g{rYk; ,y;iy/ th/rh/M/1 FWf;F tprhuizapy; “jhth brhj;Jf;fs; vd;Dila jfg;gdhh; tpiyf;F th';fpa brhj;Jf;fs; vd;why; rhpay;y jhth brhj;Jf;fs; v';fs; jhj;jhtpd; brhj;Jf;fs; MFk;/ jhth brhj;Jf;fs; v';fs; jhj;jhtpw;F ghj;jpag;gl;lJ vd;gjw;fhd Mtz';fis ePjpkd;wj;jpy; jhf;fy; bra;Js;nsd;. ehd;
brhy;tJ jtW vd;Wk; jhth brhj;Jf;fis vd;Dila jfg;gdhh; Rakhf tpiyf;F th';fpdhh; vd;why; rhpay;y/ tHf;F brhj;Jf;fis jtpu ntW brhj;Jf;fs; v';fs; Flk;gj;Jf;F ghj;jpag;gl;lJ vd;why; ntW brhj;Jf;fs; ,y;iy” vd;Wk;
rhl;rpak; mspj;Js;shh;/ vdnt th/rh/1d; FWf;F tprhuizapypUe;J 1k; gpujpthjp bgahpy; th/rh/1d; FWf;F tprhuizapypUe;J 1k; gpujpthjp Flk;gj;jpw;F ntW brhj;Jf;fs; ,y;iy vd;W bjspthf epU:gzkhfpwJ/ th/rh/M/4 jhth brhj;Jf;fSf;F 1k; gpujpthjp bgahpy; cs;s fzpdp gl;lht[k; th/rh/M5 jhth brhj;Jf;f 1k; gpujpthjp brYj;jpa jPh;it urPJk; jhf;fy; bra;ag;gl;Ls;sJ/ th/rh/M.4. 5 Mtz';fs; tHf;fpw;F gpd;dh; Vw;gl;l Mtz';fs; vd;gJk; bjhpatUfpwJ/ 9/ 1k; gpujpthjpf;F g{h;tPf ghj;jpakhd brhj;Jf;fs; tha;bkhHp ghfj;jpy; fpilj;jJ mtw;wpy; te;j tUkhdj;ijf; bfhz;L jhth brhj;Jf;fs; fpuak; bgwg;gl;lJ vd thjplg;gl;Ls;sJ/ Mdhy; g{h;tPf brhj;Jf;fisg; bghWj;J thjpfs; jug;gpy; ve;j XU MtzKk; jhf;fy; bra;J epUgpf;ftpy;iy/ th/rh/1 Kjy; tprhuizapYk; g{h;tPf brhj;Jf;fis bghWj;J thjpfs; jug;gpy; ve;j xU MtzKk; jhf;fy; bra;J epUgpf;ftpy;iy/ th/rh/1 Kjy; tprhuizapYk; g{h;tPf brhj;Jf;fis bghWj;J rh;nt vz;nzh tp!;jPh;dnkh me;j brhj;J ve;j fpuhkj;jpy; cs;sJ vd;gij bghWj;Jk; rhl;rpak; mspf;ftpy;iy/ nkYk; tha;bkhHp ghfj;jpy; fpilj;j brhj;Jf;fspypUe;J vt;tst[ kpFjpahf tUkhdk; te;jJ vd;gija[k; thjpfs; jug;gpy; jFjp Mtz';fs; K:yk; epU:gpf;ftpy;iy/ thjpfs; kw;Wk; 1k; gpujpthjp FLk;gj;jpy; g{h;tPf brhj;Jf;fs; ,Uf;Fnkahdhy; mtw;iw Vd; tHf;fpy; nrh;j;J ghfgphptpid nfhutpy;
https://www.mhc.tn.gov.in/judis iy vd;gjw;Fk; ve;j xU fhuzKk;
( Uploaded on: 05/03/2025 08:49:34 pm ) Page 15 of 30 S.A.No.654 of 2018 thjpfs; jug;g[ tHf;fpy; Fwpg;gplgltpy;iy/ th/rh/1 FWf;Ftprhuizapy; jhth brhj;Jf;fspd; tUkhdj;jpypUe;J fpuak; bgw;w brhj;Jf;fs; vd;gij thjpfs; jFe;j tha;bkhHp rhl;rpak; kw;Wk; Mtz';fs; K:yk; epU:gpf;f ntz;Lk;/ Mdhy; thjpfs; jug;gpy; nkw;go r';fjpfis bghWj;J jFe;j tha;bkhHp rhl;rpankh Mtz rhl;rpankh Kd;dplg;gltpy;iy/ ,J Fwpj;J ,e;ePjpkd;wk; khz;g[kpF brd;id cah;ePjpkd;w fPH;fz;l Kd; jPh;g;g[fis fUj;jpy; bfhz;lJ/ mitfs; 2015 (3) CTC 129 Renuga and another vs K.G.Chandran and another Hindu Law – Joint Family – Joint Family Property – Existence of Joint Family nucleud – Burden of proof – Presumption as to Essential conditions: (a) There should be Joint Family nucleus
(b) Joint Family nucleus has surplus income, from and out of which property could have been purchased – Burden lies upon person, who asserts that property was purchased out of Joint Family purchased from Joint Family income – Concurrent findings of Court Below is affirmed – Second Appeal dismissed 2014 (1) TNLJ 387 (Civil)
1. Nagarathinam 2. Adhiyaman 3. Senthamil Selvi 4. N.Pari Vs Rajagopal Hindu Law – Partition – In the absence of any reliable documents to prove that the family had sufficient nucleus from joint family properties to purchase properties-the properties cannot be constructed to be joint family property – property assigned by the government in favour of one of the family members, it cannot be constructed as joint family property, in absence of proof that only on the basis of possession of joint family members, the property assigned in his name.
nkny Fwpg;gpl;Ls;s https://www.mhc.tn.gov.in/judis Kd;on:j05/03/2025 ( Uploaded Ph;g;g[fis08:49:34,t;
pmt) Hf;F r';fjpfSf;F Page 16 of 30 S.A.No.654 of 2018 bghUj;jkhf cs;sJ vd;W ,e;ePjpkd;wk; Kot[ bra;fpwJ/
10. gpujpthjpfs; jug;gpy; gp/rh/M/1 Kjy; 3 Mf thjpfs; jug;g[ th/rh/M/1 Kjy; 3 Mtz';fspd; rhd;wpl;l efy;fisna jhf;fy; bra;J FwpaPL bra;ag;gl;Ls;sJ/ gp/rh/M/4 Mf 24/08/2009 njjpapl;l fpua gj;jpuj;jpd; rhd;wpll; efiy ghprPypf;ifapy; jhth brhj;Jf;fspy; 1k; gpujpthjp 2. 3 gpujpthjpfSf;F jdf;F fpuak; Kyk; jd; jdpikahd RthjPdj;jpy; ,Ue;J te;j brhj;ij jd FLk;g bryt[f;fhR fpuak; bfhLg;gjhf Fwpg;gpl;L f[puak; bfhLj;Js;shh; vd;gJ bjspthf fhzg;gLfpwJ/ nky;KiwaPll; hsh;fs; / thjpfs; jug;gpy; jhf;fy; bra;j nky;KiwaPlo; y; 1k; gpujpthjp 2. 3 gpujpthjpfsplk; U/6/00/000 fldhf bgw;Wf;bfhz;L jhth brhj;Jf;fs; fpuak; bfhLf;fg;gl;ljhft[k; mjw;F khjk; xd;Wf;F U/1/00 tPjk; tl;o brYj;jp 6 khj';fSf;Fs; kWfpuak; bra;Jbfhs;s ntz;oaJ vd;W rk;kj gj;jpuk; vGjg;gl;Ls;sJ vd;W Fwpg;gplg;gl;Ls;sJ/ gp/rh/1 Mf tprhhpf;fg;gl;l 3k; gpujpthjp jd; rhl;rpaj;jpy; kW fpuak; bra;J bfhLg;gjhf vGjg;gl;l rk;kj gj;jpuj;jpd;
b$uhf;!; efypd; xU g[ifg;gl efypy; jhDk; 1. 2 gpujpthjpfSk; rk;kj gj;jpuj;jpy; ifbaGj;jpl;ljhf Twp gp/rh/1d; FWf;F tprhuizapd; nghJ th/rh/M/6 Mf gp/rh/1d;
ifbaGj;J kl;Lk; FwpaPL bra;ag;gl;lJ/ th/rh/M/6 ifbaGj;ijf; bfhz;l Mtzj;jpd; mry; ,e;ePjpkd;wj;jpy;
Mtzkhf jhf;fy; bra;J FwpaPL bra;ag;gltpy;iy/ thjpfspd; tHf;FiuapYk; 1k; gpujpthjpapd; vjph;tHf;FiuapYk;
th/rh/M/6y; 3k; gpujpthjpapd; ifbaGj;J cs;s rk;kj gj;jpuj;ij bghWj;J vt;tifapYk; Fwpg;gpltpy;iy/ nkYk; nkw;go Mtzj;ij bghWj;J 1k; gpujpthj rl;l eltof;if nkw;bfhz;lhuh vd;gij bghWj;Jk; nky;KiwaPll; hsh;fs;/ thjpfs; jug;gpd; Tw;W Vw;Wf; bfhs;sf;ToaJ my;y vd;W ,e;ePjpkd;wk; Kot[bra;fpwJ/”
15. In the light of the above, the learned Counsel for the Appellant in this Second Appeal sought to set aside the judgment of dismissal recorded by https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 17 of 30 S.A.No.654 of 2018 the learned District Munsif, Palacode in O.S.No.190 of 2009, dated 11.08.2015 and confirmed by learned Appellate Judge, the learned Sub Judge in A.S.No.32 of 2017, dated 28.11.2017 and to grant preliminary decree of 1/5 share in the suit properties for Plaintiffs 1 to 4.
16. The learned Counsel for the Appellant in this Second Appeal would further submit that in case the sale deed is held to be valid, still it is not valid regarding 4/5 share of the Plaintiffs. The sale held by the first Defendant in favour of second and third Defendants is not binding on 4/5 share of the Plaintiffs. Therefore, preliminary decree of the partition has to be granted in favour of the Plaintiffs in O.S.No.190 of 2009 and the Second Appeal has to be allowed.
17. The learned Counsel for the second and third Respondents Ms.V.Srimathi submitted that the suit had been instituted after 5 months of the date of execution of sale deed by first Defendant in favour of second and third Defendants. The first Defendant had filed written statement stating that he is adopting the contents of the plaint, therefore, it is collusive suit between first Defendant and the Plaintiffs.
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18. The learned Counsel for the second and third Respondents relied on the very same documents and the very same observation by the learned trial Judge and the learned Appellate Judge. The reliance placed by the learned Counsel for the Appellant in the portion of the judgment regarding discussion of the oral and documentary evidence by the learned trial Judge above in Paragraphs 13 and 14 by the learned Appellate Judge in Tamil.
19. Further, the learned Counsel for the second and third Respondents would submit that in the course of evidence, the Plaintiffs claim that the whereabouts of their father/first Defendant is not known. It is to be noted that the written statement of the second and third Defendant was filed on 25.06.2010 and first Defendant was filed on 16.09.2013, the plaint was presented on 21.12.2009 and the learned Counsel appearing for the Plaintiffs was the learned Counsel for the first Defendant. Under those circumstances it is nothing but a frivolous litigation. The first Defendant, father of the Plaintiffs 1 to 4 had not entered the witness box. He is the competent witness to speak about the nature of the property and the nature of transaction between him and the second and third Defendants. He had avoided witness box and therefore, the Court had to draw adverse inference against the first Defendant. The burden is on the Plaintiffs regarding Plaintiffs contention and they had not https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 19 of 30 S.A.No.654 of 2018 discharged the burden cast upon them. After the second and third Defendants had filed written statement, the Plaintiffs had not denied the contentions or disputed the contentions raised in the written statements filed by second and third Defendants.
20. Therefore, the learned Counsel for the second and third Respondents submitted that the judgment of dismissal recorded by the learned District Munsif, Palacode is a well reasoned judgment which was upheld on reassessment by the learned Sub Judge, Palacode, as Appellate Judge, confirming the judgment of the learned District Munsif, Palacode on proper appreciation of evidence. Therefore, when the two Courts, trial Court as well as the first Appellate Court had arrived at just conclusion on proper appreciation of evidence and on re-appreciation of evidence, the Second Appeal has no merits and it has to be dismissed.
Point for determination:
Whether the Courts below are right in not considering Ex.A-1 in proper perspective, in that the said sale deed executed by the father and brothers of the first Defendant in which the recitals had been clearly made that the said property (Item Nos. 1,4,5 and 7) they are selling are the ancestral properties, which would unsuit Defendants 2 and 3?21.
https://www.mhc.tn.gov.in/judis Heard the learned Counsel for the Appellant and the learned ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 20 of 30 S.A.No.654 of 2018 Counsel for the second and third Respondents. Perused the judgment of the learned District Munsif, Palacode, in O.S.No.190 of 2009, dated 11.08.2015, the judgment of the learned Sub Judge, Palacode in A.S.No.32 of 2017, dated 28.11.2017 and the records in O.S.No.190 of 2009.
22. On consideration of the rival submissions, the Judgment of the learned District Munsif, Palacode in O.S.No.190 of 2009, dated 11.08.2015 dismissing the suit of the Plaintiffs for partition and the judgment of the Appellate Court/learned Sub Judge, Palacode, in A.S.No.32 of 2017, dated 28.11.2017 dismissing the Appeal by the Plaintiffs and confirming the Judgment of the learned District Munsif, Palacode, are found to be perverse.
Considering the fact that in Civil Cases, oral evidence alone cannot be the deciding factor. The evidence of the parties had to be assessed along with recitals in the documents relied by the witnesses. The evidence in the documents prevail over the oral evidence of the witnesses.
23. The learned District Munsif, Palacode, in the discussion regarding evidence had stated that the Plaintiffs had failed to prove the ancestral nucleus. The burden is on the Plaintiffs when they had approached the Court seeking partition of the ancestral properties and seeking injunction that the Defendants https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 21 of 30 S.A.No.654 of 2018 1 to 3 shall not create encumbrance in the properties. Ex.A-1, Ex.A-2 and Ex.A-3 are the deeds in favour of the first Defendant executed by the paternal uncles and paternal grandfather of the Plaintiffs. Ex.A-6 is the consent deed executed by first Defendant in favour of second and third Defendants which is styled as “Consent Deed”. The recitals in which claims that first Defendant had purchased the properties. Therefore, it is his self-acquired properties and he had availed Rs.6,00,000/- as loan from the second and third Defendants for which he undertakes to repay the same within two years by paying interest at the rate of 1%. If he failed to pay interest consecutively for six months, he forfeitures his right in enjoying the property. The wordings in Ex.A-6 can be interpreted both as a sale deed and as mortgage deed (condition sale).
24. The contention of the Plaintiffs in the plaint is against Ex.A-6 that the father of the Plaintiffs, first Defendant, encumbered the properties to second and third Defendants as though it was his self-acquired properties. Whereas it was the ancestral properties. Ex.A-1 and Ex.A-3 are the sale deeds in favour of the first Defendant by his father and his own brothers for their share in which it is clearly stated that the properties were ancestral properties by nature and they are selling the properties which they succeeded in the partition. The learned District Munsif, Palacode failed to appreciate the https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 22 of 30 S.A.No.654 of 2018 purpose of marking the document under Ex.A-1 to Ex.A-6 by the Plaintiffs. Ex.A-1 and Ex.A-3 are sale deeds. Ex.A-2 is a rectification deed for Ex.A-1. Ex.A-4 and Ex.A-5 are the patta and kist receipt for the suit properties. Ex.A- 6 is the document which is objected by the Plaintiffs as the first Defendant had suppressed the fact that the properties were originally ancestral properties. Even if the sale is held valid, it will not bind the share of the Plaintiffs' 4/5 share and it can only bind the share of first Defendant. The purchaser of the property shall be vigilant and cautious while purchasing the properties whether the property involves stakes for the minors. The deed under Ex.A-6 does not mention any stakes involved by the minors. The parent deed of the same is Ex.A-1 to Ex.A-3 which clearly mention that it is ancestral properties. After the partition, the co-sharers had sold their share to the first Defendant i.e., the paternal grandfather and paternal uncles of Plaintiffs had sold their shares in favour of the first Defendant/father of the Plaintiffs. Based on such sale, the first Defendant suppressing the fact that it is ancestral property, had sold it to second and third Defendants. In the evidence, second and third Defendants claim that the properties are in possession of the joint family consisting of Plaintiff and first Defendant. Those facts were not considered by the learned District Munsif and had dismissed the suit based on the oral evidence of the Plaintiffs alone and not based on recitals in Ex.A-1 to Ex.A-3. https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 23 of 30 S.A.No.654 of 2018 Therefore, the judgment of the learned District Munsif, Palacode is perverse. Aggrieved by the same, the Plaintiffs had preferred Appeal in A.S.No.32 of 2017 raising the grounds that the learned District Munsif failed to appreciate the fact that the ancestral property was sold by the first Defendant in favour of second and third Defendants, the learned Sub Judge at Palacode had upheld the judgment of the learned District Munsif and rejected the grounds of appeal raised by the Plaintiffs as Appellants. Aggrieved by the same, the first Plaintiff before the learned District Munsif, Palacode and the first Appellant before the learned Sub Judge, Palacode, had preferred this Second Appeal seeking partition of 4/5th shares of the Plaintiffs in the suit properties. In the light of the recitals in Ex.A-1 and Ex.A-3 there was presumption that the properties were joint family properties. The sale deed executed by first Defendant in favour of the second and third Defendants are in violation of the principles of joint family property/ancestral properties. The sale in favour of the first Defendant under Ex.A-1 and Ex.A-3 show that the co-sharers want to sell the properties only among themselves. The nature of the properties is joint family ancestral properties. Considering those facts, the learned District Munsif, Palacode as well as the learned Sub Judge, Palacode failed to consider the recitals in Ex.A-1, Ex.A-2, Ex.A-3 and Ex.A-6. Even if the sale is held valid, the sale binds only the first Defendant who had 1/5 share only. The sale https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 24 of 30 S.A.No.654 of 2018 by first Defendant in favour of second and third Defendants and the second and third Defendants as purchasers should have been careful and cautious under the principle “buyer be aware”. The contention of the learned Counsel for the second and third Respondents that the suit itself is a collusive suit between the first Defendant and the Plaintiffs, the Plaintiffs in their cross- examination stated that they were not aware of the whereabouts of the father of the Plaintiffs and the written statement filed by first Defendant admits the contention raised by the Plaintiffs in the plaint cannot be accepted in toto. The Plaintiffs as sharers are entitled to share in the joint family ancestral properties. Ignoring their claim, the first Defendant had sold the properties to second and third Defendants. The suit cannot be dismissed as collusive since the stakes of the minors were involved. Therefore, the judgment of the learned District Munsif, Palacode, dismissing the suit in O.S.No.190 of 2009, dated 11.08.2015 is found perverse as the learned District Munsif, failed to appreciate the evidence properly by merely assessing the oral evidence of the Plaintiffs. It is to be noted that the Plaintiffs in the cross-examination denied the suggestion of the Defendants that the Plaintiffs had not filed any document as proof of the claim that the properties were ancestral in nature. Ex.A-1 and Ex.A-3 will be sufficient to prove that the properties are ancestral in nature and joint family properties.
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25. The learned Sub Judge had on re-appreciation of the evidence also failed to appreciate the recitals in the documents. Therefore, the Judgment of the learned Sub Judge, Palacode confirming the Judgment of the learned District Munsif dismissing the suit by Plaintiffs seeking Partition is also perverse as he failed to appreciate independently the documents marked in the trial on behalf of the Plaintiffs.
26. The documents marked as Ex.A-1 to Ex.A-4 which were the same as marked by the Defendants i.e., Ex.B-1 to Ex.B-3, Ex.B-4 is different document. Ex.B-1 and Ex.B-2 are certified copies of the sale deed in the name of first Defendant. Ex.A-1 and Ex.A-2 are also certified copies of the very same sale deed. The purchaser who purchase the property shall be aware of the risk involved by the principle “buyer be aware”. He cannot mechanically purchase the property when the minors' share are sold. Therefore, when the minors object to the guardian for selling their share, the Court in equity shall act in the interest of the minors.
27. The interpretation of consent deed is found to be practically mortgage deed between Defendants 1 to 3. Therefore, even though the https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 26 of 30 S.A.No.654 of 2018 property was stated to be sold by first Defendant, it is not a sale. As such, it is mortgage, in the light of the consent deed under Ex.A-6. Therefore, it is to be treated as mortgage only. The first Defendant cannot ignore the right of the Plaintiffs 1 to 4 and create encumbrance in the properties by executing Ex.A-6 in favour of the second and third Defendants.
28. The Courts below are not right in considering Ex.A-1 and Ex.A-3 in its proper perspective. In the sale deed executed by the father and brothers of the first Defendant in which the recitals had been clearly made that the said properties (Item Nos. 1,4,5 and 7) they are selling are their ancestral properties which would unsuit the case of the second and third Defendants.
29. In the light of the above discussion, the substantial question of law raised by the Appellant in the Second Appeal is answered in favour of the Plaintiffs. The sale deed executed by the father and brothers of the first Defendant in which the recitals had been clearly made that the said property (Item Nos. 1,4,5 and 7) they are selling are their ancestral properties will not bind the minors, the Plaintiffs in the suit in O.S.No. 190 of 2009. Therefore, the suit for partition filed by the Plaintiffs for their 4/5 share ought to have been decreed.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 05/03/2025 08:49:34 pm ) Page 27 of 30 S.A.No.654 of 2018 In the result, this Second Appeal is allowed. The Judgment and decree passed by the learned Subordinate Judge, Palacode in A.S.No.32 of 2017 dated 28.11.2017 confirming the judgment and decree passed by the learned District Munsif, Palacode in O.S.No.190 of 2009 dated 11.08.2015 are set aside. The suit for partition filed by the Plaintiffs in O.S.No.190 of 2009 is decreed. Preliminary decree for partition is granted in favour of the Plaintiffs in O.S. No.190 of 2009 before the learned District Munsif, Palacode. The Plaintiffs shall proceed further with final decree application before the learned District Munsif, Palacode. No costs.
29.05.2024
shl/dh/srm
Internet : Yes/No
Index : Yes/No
Speaking/Non-Speaking Order
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S.A.No.654 of 2018
To
1. The Subordinate Judge,
Palacode.
2. The District Munsif,
Palacode.
3. The Section Officer,
Vernacular Records Section,
Madras High Court,
Chennai – 600 104.
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S.A.No.654 of 2018
SATHI KUMAR SUKUMARA KURUP, J.
shl/dh/srm
Pre-Delivery Judgment in
S.A.No.654 of 2018
29.05.2024
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