BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/06/2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL(MD)No.148 of 2011 and MISCELLANEOUS PETITION No.2 of 2011 Vedambal .. Appellant Vs. 1.Ponnarasi 2.Kulandaivel Solagar .. Respondents (R2 - Given up) Second Appeal filed under Section 100 of CPC against the Judgment and decree dated 09.12.2009 passed in Appeal Suit No.3 of 2009 by the Sub Court, Pattukkottai confirming the Judgment and decree dated 10.03.2005 passed in Original Suit No.57 of 2004 by the District Munsif cum Judicial Magistrate's Court, Orathanadu. !For Appellant ... Mr.S.Deenadhayalan ^For Respondent No.1 ... Mr.A.Anbalagan :JUDGMENT
Challenge in this second appeal is to the concurrent Judgments and
decrees passed in Original Suit No.57 of 2004 by the District Munsif cum
Judicial Magistrate’s Court, Orathanadu and in Appeal Suit No.3 of 2009 by the
Sub Court, Pattukkottai.
2. The first respondent herein as plaintiff has instituted Original Suit
No.57 of 2004 on the file of the trial Court for the reliefs of partition and
separate possession of her half share, wherein the present appellant and the
second respondent have been shown as defendants.
3. In the plaint it is averred that the suit property and some other
properties are the joint family properties of the plaintiff and first defendant.
The first defendant is the father of the plaintiff. The paternal uncle of the
plaintiff has brought up and also educated her and subsequently conducted her
marriage on 08.04.1998. The first defendant after the demise of his wife
(mother of the plaintiff) has been leading a wavered life. Under the said
circumstances, the first defendant has sold the suit property in favour of the
second defendant and the same is not binding upon the plaintiff. In the suit
property, the plaintiff is having half share and since the defendants are not
amenable for having amicable partition, the present suit has been instituted for
the reliefs sought for in the plaint.
4. In the written statement filed on the side of the second defendant, it
is averred that it is false to contend that the father of the plaintiff has been
leading a wavered life. It is also equally false to say that the marriage of
the plaintiff has not been conducted by the first defendant. The first
defendant has created a mortgage deed in respect of the suit property and some
other properties and in order to redeem the same, he sold the suit property in
favour of the second defendant under a registered sale deed dated 01.01.1992.
The sale deed executed by the first defendant for himself and also on behalf of
the plaintiff is binding upon her. The plaintiff has filed the present suit
erroneously without seeking the relief of cancellation of the sale deed, which
stands in the name of the second defendant and there is no merit in the suit and
the same deserves to be dismissed.
5. On the basis of the divergent pleadings raised on either side, the
trial Court has framed necessary issues and after analysing both the oral and
documentary evidence has decreed the suit as prayed for. Against the Judgment
and decree passed by the trial Court, the second defendant as appellant has
preferred Appeal Suit No.3 of 2009 on the file of the first appellate Court.
6. The first appellate Court after hearing both sides and upon
reappraising the evidence available on record has dismissed the appeal and
thereby confirmed the Judgment and decree passed by the trial Court. Against
the concurrent Judgments and decrees passed by the Courts below, the present
second appeal has been preferred at the instance of the second defendant as
appellant.
7. As agreed by the learned counsel appearing for both sides, the present
second appeal is disposed of on merits at the stage of admission.
8. On the side of the appellant/second defendant, the following
substantial questions of law have been raised for consideration:
a) Whether the suit for partition is maintainable without setting aside
the earlier sale deed (Ex.B.1) dated 01.01.1992 in favour of the appellant, when
the plaintiff is neither the owner nor in possession of the suit schedule
properties?
b) Whether the suit filed by the plaintiff is not barred by limitation as
per Article 60 of the Limitation Act, 1963?
c) When the minor child was shown as party to the sale deed executed by
her father on behalf of himself and for his minor daughter and for the benefit
of family and the said transaction could be questioned by way of initiating mere
partition suit?
9. Before perpending the rival submissions made by either side, it would
be condign to narrate the following admitted facts. The suit property and some
other properties are the joint family properties of the first defendant and
plaintiff. The plaintiff is the only daughter of the first defendant and the
plaintiff has been given in marriage on 08.04.1998.
10. The epitome of the case of the plaintiff is that the suit property and
some other properties are the joint family properties of the plaintiff and her
father viz., first defendant and after the demise of the mother of the
plaintiff, the first defendant has been leading a wavered life and he sold the
suit property in favour of the second defendant without legal necessity and
therefore the sale effected by the first defendant in favour of the second
defendant is not binding upon the plaintiff and since the suit property is the
joint family property, the plaintiff is having half share and under the said
circumstances the present suit has been filed for the reliefs sought for in the
plaint.
11. The main defence taken on the side of the second defendant is that the
first defendant for the purpose of discharging loan, has executed the sale deed
dated 01.01.1992 in favour of the second defendant with regard to the suit
property and the same is binding upon the plaintiff and therefore the plaintiff
is not entitled to institute the present suit for the relief of partition and if
at all the plaintiff wants to enforce her right over the suit property, she has
to take necessary legal proceedings for setting aside the sale deed, which
stands in the name of the second defendant and therefore the present suit
deserves to be dismissed.
12. The Courts below have concurrently rejected the defence taken on the
side of the appellant/second defendant.
13. The sale deed which stands in the name of the second defendant has
been marked as Ex.B.1. The main substantial question of law involves in the
present second appeal is as to whether the present suit is legally maintainable
without setting aside Ex.B.1, the sale deed which stands in the name of the
second defendant?
14. The learned counsel appearing for the appellant/second defendant has
laconically contended that Ex.B.1 is a sale deed, which stands in the name of
the second defendant and the same has been executed by the first defendant for
himself and also on behalf of the plaintiff and since in Ex.B.1, the plaintiff
has been shown as eo nominee party, the same is binding upon her and therefore
she is bound to set aside the same by way of taking legal proceedings and since
she has not taken any steps so as to set aside Ex.B.1, the present suit is not
legally maintainable and the Courts below without considering the aforesaid
vital legal point, have erroneously rejected the defence putforth on the side of
the appellant/second defendant and therefore the concurrent Judgments and
decrees passed by the Courts below are liable to be interfered with.
15. As stated earlier, the sale deed dated 01.01.1992, which stands in the
name of the second defendant has been marked as Ex.B.1 and the same has been
executed by the first defendant for himself and also on behalf of the plaintiff.
It is an admitted fact that at the time of execution of Ex.B.1, the first
defendant is the natural guardian of the plaintiff and also the so-called joint
family manager.
16. The learned counsel appearing for the appellant/second defendant has
befittingly drawn the attention of the Court to the decision in P.B.Ramjee and
two others v. P.B.Lakshmanaswamy Naidu and ten others reported in 1996(I) CTC
661, wherein the Division Bench of this Court has categorically held that if
minor is eo nominee party to sale deed or other document of alienation, he must
sue for cancellation of document and apply for possession irrespective of the
fact whether sale deed is executed by his father as natural guardian or as
manager of joint family.
17. In the decision referred to supra, the decision in Sankaranarayana
Pillai v. Kandasamipillai reported in 1956(2) M.L.J. 411 has been referred to,
wherein the Full Bench of this Court has held as follows:
“Our answer to the first question is that if the minor is eo nominee a
party to a sale deed or other document of alienations, he must sue for the
cancellation of the document under Section 7(iv-A) of the Court-Fees Act and it
is not enough if he applies for possession under Section 7(v) of the Act; …”.
18. From the conjoint reading of the decisions referred to supra, it is
easily discernible that in any transaction if a minor has been shown as eo
nominee party and he has been represented by his lawful guardian, the alleged
transaction is binding upon him and necessarily he has to take steps for
cancelling the same.
19. In the instant case in Ex.B.1, it has been stated that the first
defendant for himself and also on behalf of the then minor (plaintiff) has sold
the suit property in favour of the second defendant. The first defendant is the
father of the plaintiff and also joint family manager of the so-called joint
family. Under the said circumstances, the first defendant is having every legal
right so as to deal with the joint family property by way of impleading the
plaintiff as eo nominee party. Since in Ex.B.1, the plaintiff has been shown as
eo nominee party, the transaction entered into under Ex.B.1 is binding upon her
and if at all she wants to agitate the same, she has to take necessary steps for
cancelling the same. But in the instant case, the present suit has been
straight away filed for the reliefs of partition and separate possession without
seeking relief of cancellation of Ex.B.1. Therefore in view of the decisions
referred to supra, it is needless to say that the present suit is not legally
maintainable.
20. In order to fizzle out the argument advanced by the learned counsel
appearing for the appellant/second defendant, the learned counsel appearing for
the first respondent/plaintiff has contended that even though Ex.B.1 has been
executed by the first defendant in favour of the second defendant, since the
suit property is a joint family property, the first defendant can execute the
same only for legal necessity and in the instant case such necessity has not
been proved by the second defendant and under the said circumstances so far as
the share of the plaintiff is concerned, the transaction routed through Ex.B.1
is nothing, but void and therefore the same need not be set aside.
21. In many places, it has been stated that the first defendant has acted
as father/ manager of the so-called joint family. It is an archaic and pristine
principle of law that if any transaction has been made by father/manager of a
joint family, legal necessity need not be proved. In the instant case, Ex.B.1
has been executed by the first defendant as father/manager of the erstwhile so-
called joint family. In Ex.B.1 it has been clearly stated that Ex.B.1 has come
into existence for the purpose of discharging loan. Even though the second
defendant has failed to prove the recitals found in Ex.B.1 with regard to
discharging of loan, as per the settled principle of law, legal necessity need
not be proved in case of sale or any transaction made by father/ manager and
therefore the argument advanced on the side of the first respondent/plaintiff is
totally erroneous.
22. The first and foremost substantial question of law raised in the
present second appeal as stated supra is as to whether the present suit is
legally maintainable without setting aside Ex.B.1? It has already been
discussed in detail and ultimately found that Ex.B.1 is a valid document. Since
Ex.B.1 is a valid document, the plaintiff ought to have sought for relief of
cancellation. But the plaintiff has straight away filed the present suit for
the relief of partition and separate possession without setting aside Ex.B.1.
Since the plaintiff has filed the present suit for the reliefs of partition and
separate possession without setting aside Ex.B.1, it is needless to say that the
present suit is not legally maintainable and the same is liable to be thrown out
in limini.
23. The Courts below without considering the correct legal point involves
in the present case have erroneously rejected the defence taken on the side of
the appellant/second defendant. In view of the discussion made earlier, this
Court has found considerable force in the contention urged on the side of the
appellant/ second defendant and the contention urged on the side of the first
respondent/plaintiff is sans merit and the first and foremost substantial
question of law raised in the present second appeal is decided in favour of the
appellant/ second defendant. Since the first and foremost substantial question
of law raised in the present second appeal is decided in favour of the
appellant/second defendant, the remaining substantial questions of law raised in
the present second appeal need not be decided.
24. In fine, this second appeal is allowed without costs at the stage of
admission and the concurrent Judgments and decrees by the Courts below are set
aside and Original Suit No.57 of 2004 is dismissed without costs. Consequently,
connected Miscellaneous Petition is dismissed.
smn
To
1.The Sub Court,
Pattukkottai.
2.The District Munsif cum Judicial
Magistrate’s Court,
Orathanadu.