{"id":169974,"date":"2006-01-27T00:00:00","date_gmt":"2006-01-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thiruvenkada-gounder-died-vs-ammaiappan-kothandaraman-on-27-january-2006"},"modified":"2015-05-26T11:16:45","modified_gmt":"2015-05-26T05:46:45","slug":"thiruvenkada-gounder-died-vs-ammaiappan-kothandaraman-on-27-january-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thiruvenkada-gounder-died-vs-ammaiappan-kothandaraman-on-27-january-2006","title":{"rendered":"Thiruvenkada Gounder (Died) vs Ammaiappan @ Kothandaraman on 27 January, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
Thiruvenkada Gounder (Died) vs Ammaiappan @ Kothandaraman on 27 January, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS           \n\nDated:  27\/01\/2006\n\nCoram \n\nThe Hon'ble Mr.Justice N.PAUL VASANTHAKUMAR        \n\nSecond Appeal No.278 of 1993  \n\n1.     Thiruvenkada Gounder (died)\n2.      Rajambal\n3.      T.Dharman\n4.      Unnamalai                       ...                     Appellants\n\n(Appellants 2 to 4 brought on record\nas LRs of the deceased sole appellant\nvide orders of the Court dated 25.8.2005\nin C.M.P.Nos.16946 to 16948 of 2004) \n\n-Vs-\n\n1.     Ammaiappan @ Kothandaraman    \n2.      Minor Balakrishnan\n        (through Guardian mother and\n         next friend Krishnaveni Ammal)\n3.      Sundaram\n4.      Elumalai                        ...                     Respondents\n\n        This second appeal has been filed under Section 100 of Code  of  Civil\nProcedure against the judgment and decree dated 7.1.1992 in A.S.No.5 5 of 1990\non  the  file  of the Sub Court, Tindivanam, reversing the judgment and decree\ndated 9.8.1990 in O.S.No.646 of 1985 on the file of  the  Additional  District\nMunsif Court, Tindivanam.\n\n\n!For Appellants         :       Mr.R.Ashokan\n\n^For Respondents 1&2    :       Mr.T.Dhanasekaran\n                                for Mr.N.Maninarayanan\n\nFor 3rd Respondent      :       Mr.J.Sivaganesh\n\n:J U D G M E N T \n<\/pre>\n
        First defendant in O.S.No.646 of 1985 on the file  of  the  Additional
\nDistrict Munsif Court, Tindivanam, aggrieved by the judgment and decree of the
\nlearned  Subordinate  Judge,  Tindivanam  in A.S.No.55 of 1990 dated 7.1.1992,
\nfiled the present second appeal.  During pendency of the  second  appeal,  the
\nfirst  defendant  died  and  hence his legal representatives were impleaded as
\nappellants 2 to 4 vide orders of this Court dated 25.8.2005 in C.M.P.Nos.16946
\nto 16948 of 2004.  Plaintiffs 1 and 2 and defendants 2 and 3 in  the  original
\nsuit are respondents herein.\n<\/p>\n
        2.      The facts that are necessary for the disposal  of  the  second
\nappeal,  as  could  be  seen  from  the  plaint  and written statement, are as
\nfollows.\n<\/p>\n
        (a)     The suit properties originally belonged to  the  joint  family
\nconsisted  of  one Hariputhiri Gounder, the grandfather of the plaintiffs, and
\nhis sons Munusamy Gounder and Elumalai Gounder, the third  defendant  in  this
\nsuit.   In  an  oral  partition,  the  western  half  of item No.1 of the suit
\nproperty was allotted to the elder brother Munusamy Gounder  and  the  eastern
\nhalf  was  allotted  to  the  third  defendant  Elumalai Gounder and they were
\nenjoying their respective properties by paying kist, etc.,  separately.    The
\nsuit second  item  is  a  well  which  was  being enjoyed in common.  The said
\nMunusamy Gounder, by registered sale deed dated 27.7.1972, sold his  share  of
\nwestern  half  of  item  No.1  in  favour of one Dharmasivam, son of the first
\ndefendant.  Subsequently, by the registered  exchange  deed  dated  29.8.1972,
\nfirst  defendant  on  behalf  of his minor son, and the third defendant on his
\nbehalf and on behalf of his  minor  son  Kothandaraman,  the  first  plaintiff
\nherein,  exchanged  their respective shares in item No.1 of the suit property.
\nFrom that date onwards, according to the pla intiffs,  the  entire  extent  of
\nitem  No.1  was  in  the enjoyment of the joint family consisting of the third
\ndefendant Elumalai Gounder and his sons,  the  plaintiffs  herein.    Elumalai
\nGounder  had  also erected a cattle shed spending Rs.2,000\/- in that property.
\nThe second defend ant is the Uncle’s son of Krishnaveni Ammal, the  mother  of
\nthe plaintiffs and he is close to the third defendant Elumalai Gounder, father
\nof the  plaintiffs.    He,  taking  advantage  of  the weaknesses of the third
\ndefendant and with ulterior motive, got a sale deed registered in  his  favour
\non 28.11.1984  in  respect  of  the suit properties.  Subsequently, the second
\nrespondent secretly and in a hurried manner, created another sale  deed  dated
\n4.12.1984  to  appear  as  if  the  suit  properties  were  sold  to the first
\nrespondent.  As the documents were created behind the back of  the  plaintiffs
\nand  against  the welfare of the joint family of the plaintiffs, the same will
\nnot bind the plaintiffs.  It is the further alleged in the plaint that  taking
\nadvantage  of  the  alleged sale deed dated 4.1 2.1984, the first defendant on
\n12.3.1985 entered into the suit property and attempted to  heap  the  hayricks
\nand  tie his cattles in the cattleshed, which was prevented by the plaintiffs.
\nThe first defendant, using his money and  muscle  power,  prevented  even  the
\nplaintiffs to  tie  their  cattles  in the cattleshed.  As the third defendant
\nacted against the  interest  of  the  plaintiffs,  they  filed  the  suit  for
\npartition  to  divide  the  suit property into three equal shares and to allot
\n2\/3rd share to them and also claiming Rs.30\/- per months towards loss of  rent
\nin respect of their 2\/3rd share from the date of suit till payment.\n<\/p>\n
        (b)     In  the  written  statement  filed  by the first defendant, he
\nadmitted that there was an oral partition between the third defendant and  his
\nelder  brother  Munusamy  Gounder  with  regard  to  suit  item No.1; that the
\nMunusamy Gounder sold his share of the property to the first  defendant;  that
\nthe  first  and  third  defendants  exchanged  their  respective  share of the
\nproperties; and that, in view of the said exchange, the third defendant became
\nentitled to the entire extent of suit item No.1.  But the allegations  in  the
\nplaint that the third defendant against the welfare of the joint family of the
\nplaintiffs,  without  any  necessity  and misdirected by the second defendant,
\nsold the suit  properties  to  the  second  defendant  and  later  the  second
\ndefendant  secretly and hurriedly created a forged sale deed on 4.12.1984, are
\ncategorically denied.    According  to  the  first  defendant,   neither   the
\nplaintiffs  nor  the  third  defendant  could  claim  any  right over the suit
\nproperties.  The case of the first defendant is that  during  November,  1984,
\nfor the joint family necessity and to purchase oil engine, the third defendant
\nrequired  funds  and for the said purpose, he requested the first defendant to
\npurchase the suit properties for valid  consideration,  for  which  the  first
\ndefendant gave his consent.  To that effect, third defendant on his own behalf
\nand on behalf of his minor sons, entered into an oral agreement with the first
\ndefendant  on  24.11.1984 for a total consideration of Rs.5,250\/- and obtained
\nRs.2,550\/- as advance and delivered possession of the suit properties on  that
\nday itself.    From that date onwards the first defendant is in possession and
\nenjoyment of the suit properties.  Two  days  later,  the  balance  amount  of
\nRs.2700\/-  was  also  obtained  by the third defendant, with an undertaking to
\nexecute the sale deed at a  later  date.    But  contrary  to  the  said  oral
\nagreement,  the  third defendant colluding with the second defendant, forged a
\nsale deed dated 28.11.1984 to appear as if the suit properties  were  sold  to
\nthe second  defendant.   On coming to know this, first defendant enquired into
\nthe matter and the second defendant executed a sale deed  dated  4.12.1984  in
\nfavour of  the first defendant in respect of the suit properties.  The further
\ncase of the first defendant is that the third defendant  without  acting  upon
\nthe  agreement  dated 24.11.1984, with a view to cheat the first defendant, in
\nthe name of his minor sons, the plaintiffs herein,  filed  the  present  suit.
\nThe  mother  of  the  plaintiffs  Krishnaveni  Ammal knows about the agreement
\nbetween the first and third defendants and hence she cannot sustain  the  case
\non behalf  of her minor sons, the plaintiffs herein.  The first defendant also
\ndenied any incident on 12.3.1985 as alleged in the plaint.  In  fact,  in  the
\nsuit  item  No.1,  there  is  no cattle shed but there is only a thatched hut,
\nwherein one Annammal, the wife  of  the  Munusamy  Gounder  is  residing  from
\n6.12.1984 by  paying  monthly rent of Rs.5\/- to the first defendant.  The said
\nAnnammal is a necessary party to this suit and as she was not  impleaded,  the
\nsuit is  bad  for non-joinder of necessary party.  There is no cause of action
\nfor the suit and the cause of action alleged in the  plaint  is  an  imaginary
\none.  Neither the plaintiffs, nor the third defendant have any manner of right
\nover  the  suit properties, and consequently the plaintiffs cannot sustain the
\nsuit for the reliefs asked for.\n<\/p>\n
        3.      During trial, the mother of the minor  Plaintiffs  Krishnaveni
\nAmmal was  examined  as PW-1 and one Krishnan was examined as PW-2.  On behalf
\nof the plaintiffs, Exs.A-1 to A-5 were marked.  The first  defendant  examined
\nhimself  as  DW-1  and  one  Ramachandra  Gounder  and Subbaraya Mudaliar were
\nexamined as DWs.2 and 3.  Through them, Exs.B-1 to B-6  were  marked.    After
\nconsidering the entire case in the light of the evidence placed before it, the
\nTrial  Court  by  its judgment dated 9.8.1990, came to the conclusion that the
\nplaintiffs were not entitled to get any relief as claimed in  the  plaint  and
\nconsequently dismissed the suit.\n<\/p>\n
        4.      Aggrieved  by  judgment  and  decree  of  the Trial Court, the
\nplaintiffs preferred  A.S.No.55  of  1990  on  the  file  of  the  Sub  Court,
\nTindivanam.   The learned Sub Judge, after reassessing the entire case and the
\nmaterials available on record, by his  Judgment  dated  7.1.1992  allowed  the
\nappeal and set aside the decree and judgment of the trial Court.\n<\/p>\n
        5.      The  first  defendant,  not satisfied with the reversal of the
\njudgment and decree of the Trial Court by the first appellate Court, filed the
\npresent second appeal.  The  second  appeal  was  admitted  on  the  following
\nsubstantial questions of law,
\n        “1.     Whether  the  lower  appellate  Court is right in allowing the
\nsuit for partial partition by minor-plaintiff, when there is no evidence  that
\nthe partition is for the benefits of minor or for his interest ?\n<\/p>\n
        2.      Whether  the  lower  appellate Court is right in decreeing the
\nsuit, when the sale is for the legal necessity and  for  the  benefit  of  the
\nestate of the joint family ?”\n<\/p>\n
        6.      Mr.R.Asokan,  learned  counsel  appearing  for the appellants\/
\ndefendants contended that the third defendant, only for  the  benefit  of  his
\nminor  sons,  on his own behalf and on behalf of the minors, entered into oral
\nagreement on 24.11.1984 with the first defendant agreeing  to  sell  the  suit
\nlands  for  a  total  consideration  of  Rs.5,250\/- and obtained Rs.2,550\/- as
\nadvance and delivered possession of the suit properties on that day itself and
\nfrom the said date, the first defendant is in possession and enjoyment of  the
\nsuit properties.    He also argued that the balance amount was paid within two
\ndays thereafter with an undertaking to execute the sale deed at a later  date.
\nThe  learned counsel for the appellants\/first defendant further submitted that
\nthe third defendant, without acting upon the oral agreement dated 24.11.198 4,
\nwith a view to cheat the first defendant filed the present suit, in  the  name
\nof his minor sons.\n<\/p>\n
        7.      The  learned  counsel  for  the  respondents\/plaintiffs on the
\nother hand contended that the first defendant has no right whatsoever to enter
\ninto the agreement with the third defendant as he is not owner of the property
\nand his case that on behalf  of  the  minors  he  had  entered  into  an  oral
\nagreement,  will  not  hold  good in view of the fact that he had not obtained
\npermission from the Court as required under Section 8(2) of the Hindu Minority
\nand Guardianship Act, 1956 and in the absence  of  any  such  permission,  the
\nalleged  agreement  for sale cannot be sustained and the suit is to be decreed
\nas prayed for and consequently the second appeal is liable to be dismissed.\n<\/p>\n
        8.      I have considered the rival submissions made  by  the  learned
\ncounsel for  the  appellants  as  well  as  the  respondents.    The point for
\nconsideration is as to whether the third defendant is entitled to  enter  into
\nan  agreement  for  sale  in  respect  of his minor sons’ share in view of the
\nspecific bar contained in section 8(2) of the Hindu Minority and  Guardianship
\nAct, 1956.\n<\/p>\n
        9.      Section  8  of  the  Hindu Minority and guardianship Act, 1956
\ndeals with the powers of the natural guardian.  Sub-section (2) to  section  8
\nreads as under,
\n        “8(2)  The natural guardian shall not, without the previous permission
\nof the court,-\n<\/p>\n
(a)     mortgage or charge, or transfer by sale,        gift,   exchange    or
\notherwise any part of   the immovable property of the minor; or\n<\/p>\n
(b)     lease any part of such property for a   term  exceeding  five years or
\nfor a term      extending more than one year beyond     the date on which  the
\nminor will attain       majority.”\n<\/p>\n
Admittedly, the third defendant had not obtained any permission from the Court
\nas required  under Section 8(2) of the Act.  The only contention raised by the
\nfirst defendant is that the sale agreement was entered into for raising  funds
\nfor  the  legal  necessity  of  the  joint family and for the benefit of minor
\nplaintiffs.  On the contrary, the contention of the learned  counsel  for  the
\nrespondents\/plaintiffs  is  that  the  third defendant was a drunkard, leading
\nimmoral life and the sale agreement to the first defendant and the  sale  deed
\nto  the second defendant were executed by him, while he was under intoxication
\nand no consideration was passed thereon.  The character of the third defendant
\nviz., the father of the plaintiffs, as found by the lower appellate  Court  is
\nthat he  was  a  drunkard  and  was  leading  immoral way of life.  As rightly
\ncontended by the learned counsel for  the  respondents  1  and  2,  the  third
\ndefendant,  having not obtained permission from the Court to sell the property
\nof his minor sons viz., Plaintiffs as required under section 8(2) of the  Act,
\nthe  same  is voidable and consequently the suit filed by the mother on behalf
\nof the minor plaintiffs is clearly maintainable.\n<\/p>\n
        10.     The Honourable Supreme Court in the decision reported in  2002
\n(4 ) Law  Weekly  330  (Madhegowda  (D)  by  Lrs.   v.  Ankegowda (D)<\/a> by Lrs &
\nOthers) in paragraphs 10, 11 and 12 held as under,
\n        “10.    …  In Sub-section (1) of Section 8 it is declared  that  the
\nnatural  guardian of a Hindu minor has power, subject to the provisions of the
\nsection, to do all acts which are necessary or reasonable and proper  for  the
\nbenefit  of  the  minor  or  for the realization, protection or benefit of the
\nminor’s estate; but the guardian in no case can bind the minor by  a  personal
\ncovenant.\n<\/p>\n
        11.     In  Sub-section  (2)  of  Section  8  it is laid down that the
\nnatural guardian shall not, without the previous permission of the Court –\n<\/p>\n
        (a) mortgage or  charge,  or  transfer  by  sale,  gift,  exchange  or
\notherwise, any part of the immovable property of the minor, or\n<\/p>\n
        (b) lease any part of such property for a term exceeding five years or
\nfor  a  term  extending  more than one year beyond the date on which the minor
\nwill attain majority.\n<\/p>\n
        12.     In sub-section (3) in which the consequences of  contravention
\nof  sub-section  (1) or sub-section (2) are provided it is laid down that “any
\ndisposal of immovable property by a  natural  guardian,  in  contravention  of
\nsub-section  (1)  or sub-section (2), is voidable at the instance of the minor
\nor any person claiming under him”.”\n<\/p>\n
        11.     In the case  on  hand,  it  is  not  the  case  of  the  third
\ndefendant,  that  he had obtained prior permission from the Court to deal with
\nthe properties of the minor sons.  Further it is not proved that  the  minors’
\nproperty was  dealt with for the benefit of the minors themselves.  Hence this
\nCourt is of the view that the judgment of the lower appellate Court is correct
\nand the dismissal of the suit by the trial Court is unsustainable.\n<\/p>\n
        12.     In the result, the second appeal is dismissed and the judgment
\nand decree of the lower appellate Court is confirmed.  No costs.\n<\/p>\n
vr<\/p>\n
To<\/p>\n
1.      The Subordinate Judge, Tindivanam.\n<\/p>\n
2.      The Additional District Munsif, Tindivanam.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Thiruvenkada Gounder (Died) vs Ammaiappan @ Kothandaraman on 27 January, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 27\/01\/2006 Coram The Hon’ble Mr.Justice N.PAUL VASANTHAKUMAR Second Appeal No.278 of 1993 1. Thiruvenkada Gounder (died) 2. Rajambal 3. T.Dharman 4. Unnamalai … Appellants (Appellants 2 to 4 brought on record as […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-169974","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThiruvenkada Gounder (Died) vs Ammaiappan @ Kothandaraman on 27 January, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thiruvenkada-gounder-died-vs-ammaiappan-kothandaraman-on-27-january-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thiruvenkada Gounder (Died) vs Ammaiappan @ Kothandaraman on 27 January, 2006 - 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