{"id":55801,"date":"2006-03-14T00:00:00","date_gmt":"2006-03-13T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-sridharan-vs-ammaniammal-on-14-march-2006"},"modified":"2017-11-22T06:10:07","modified_gmt":"2017-11-22T00:40:07","slug":"r-sridharan-vs-ammaniammal-on-14-march-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-sridharan-vs-ammaniammal-on-14-march-2006","title":{"rendered":"R.Sridharan vs Ammaniammal on 14 March, 2006"},"content":{"rendered":"
Madras High Court<\/div>\n
R.Sridharan vs Ammaniammal on 14 March, 2006<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 14\/03\/2006\n\nCORAM\n\nTHE HON'BLE MR.JUSTICE C.NAGAPPAN\n\nA.S.No.1186 of 1990\n\n1.R.Sridharan\n\n2.R.Balasundaram alias\n      Balasubramaniam\n\n3.R.Narendra Mahesh alias\n   Mahesh Kumar (major)\n(3rd  Appellant declared as major\nvide order of Court dated 3.3.2006\nmade in C.M.P.No.1127\/2006)                         ..   Appellants\n\n-Vs-\n\n1.Ammaniammal\n2.P.Rajagopal\n3.Ranganayagi\n4.Brinda Devi\n5.Ashwinikumari                                           ..  Respondents\n\n        Appeal against the judgment and  decree,  dated  19.12.1988,  made  in\nO.S.No.68 of 1982 (O.P.No.198 of 1981) on the file of the Court of Subordinate\nJudge, Coimbatore.\n\n!For appellants :  Mr.  N.Varadarajan\n\n^For respondents :  Mr.V.Natarajan\n                for R2.\n\n\n:JUDGMENT\n<\/pre>\n
        The  appeal  is  preferred  against  the  judgment  and  decree  dated
\n19.12.1988  made  in O.S.No.68 of 1982 on the file of the Court of Subordinate
\nJudge, Coimbatore.  The appellants herein are the plaintiffs in the suit.\n<\/p>\n
        2.The  appellants filed the suit seeking for a decree for cancellation
\nof registered sale deed dated 11.5.1972 executed by the defendants 1 and 2  to
\nthe extent of the plaintiffs 9\/16 th share value and for partition of the suit
\nproperties  into  sixteen equal shares and allot nine shares to the plaintiffs
\nand for costs.  The case of the plaintiffs is that they are the sons of  first
\ndefendant  who as kartha of joint family was looking after the ancestral lands
\nmeasuring a total extent of 13 acres and 28 cents  in  two  villages  and  the
\nlands  were  fertile  yielding  a net income of more than Rs.15,000\/- per year
\nwhich was sufficient for maintaining the family and the  first  defendant  was
\nleading  a  wayward,  immoral  life  and  did  not  look after the cultivation
\nproperly and the lands were leased to third defendant for annual lease  amount
\nof  Rs.5,000\/-  in the year 1972 and he had not paid the lease amount from the
\nyear 1978 and later  the  plaintiffs  were  told  that  the  lands  have  been
\npurchased  by  the  third  defendant by sale deed dated 11.5.1972 for a sum of
\nRs.65,000\/- from the defendants 1 and 2.  According  to  the  plaintiffs,  the
\nfirst  defendant in collusion with the second defendant had created a sham and
\nnominal document to get illegal gain and collusively executed  the  sale  deed
\nfor  paltry  sum  of  Rs.65,000\/-  in  detriment  to the legitimate rights and
\ninterest of the plaintiffs and the first defendants father died in the  month
\nof  Chittarai  in  1956 prior to the coming into force of Hindu Succession Act
\nand the joint family properties were shared only by the  first  defendant  and
\nhis three sons namely, the plaintiffs and the second defendant had no share in
\nthe  suit  properties  and  the  first defendant died on 17.11.1987 during the
\npendency of the suit and his widow and two daughters are added as defendants 4
\nto 6 and no relief  is  claimed  against  them.    The  further  case  of  the
\nplaintiffs  is that the sale deed was not supported by consideration and there
\nwas no legal necessity to alienate the suit lands and both the first and third
\ndefendants were aware even at the time of sale that no valuable property could
\nbe acquired for a sum of Rs.25,000\/- for the minor sons at  that  time.    The
\nretention  of such a sum itself is a hoax calculated to lend legitimacy to the
\ntransaction which was otherwise and the third  defendant  is  not  paying  any
\ninterest  on  the  sum  retained  by  him  for  the  benefit of minors and for
\nacquisition of property for the past many years and the alienation made by the
\ndefendants 1 and 2 could only bind their 7\/16th share in the  suit  properties
\nand not 9\/16th share belonging to the plaintiffs and liable to be cancelled in
\nrespect of plaintiffs share and partition has to be effected.  Hence the suit.\n<\/p>\n
        3.   The  second  defendant  in  her  written  statement  as  well  as
\nadditional written statement has denied the averments in the  plaint  and  has
\nstated  that the father of the defendants 1 and 2 viz., Rengappa Naidu died on
\n4.5.1956 and on that date, the succession to his estate was  governed  by  the
\nprovisions  of Central Act 18 of 1937 and his heirs include the widow Ellammal
\nand she died on 11.12.1968 and  succession  to  her  estate  was  governed  by
\nCentral  Act  30  of  1956  and  the second defendant was also a Class I heir,
\nentitled to 1\/4th share and the plaintiffs are not entitled  to  question  the
\nsale  by  the  second  defendant  of her share in the properties and the third
\ndefendant was never a lessee of the suit properties  and  the  alienation  was
\nmade for binding debts and the price paid was fair.\n<\/p>\n
        4.   The  third  defendant  in his written statement as well as in the
\nadditional written statement has admitted that the suit  properties  were  the
\nancestral properties of the first defendant, in which, both defendants 1 and 2
\nhave  definite shares and according to him, the first defendant borrowed money
\nfor improving the lands and for digging a well and the debts were mounting and
\nin order to discharge the antecedent debts, the first defendant was forced and
\ncompelled to sell the suit property from  saving  the  family  from  incurring
\nfurther  loans  and  getting  ruined and the first defendant was a prudent and
\nordinary man and no vices can be attributed to his  character  and  the  third
\ndefendant  was  never  inducted  as  lessee  in  the  suit property and to the
\nknowledge of the plaintiffs, he purchased the suit property  under  sale  deed
\ndated  11.5.1972 for a sale consideration of Rs.65,000\/- from the defendants 1
\nand 2 and the minor plaintiffs were duly represented by their father  who  was
\nthe  natural  guardian  and  out  of  the  sale consideration, Rs.40,000\/- was
\nreceived by the first defendant to discharge the family debts  and  the  third
\ndefendant  was asked to retain the remaining Rs.25,000\/- to enable the vendors
\nto purchase some other properties for the benefit of the plaintiffs  and  till
\nthen,  the third defendant agreed to pay interest thereon at 10% per annum and
\nin fact paid by way of interest a sum of Rs.12,800\/- and the sale effected  by
\ndefendants  1  and 2 in favour of him was for legal, binding necessity and for
\nthe benefit of minors as well and the antecedent debts are  not  tainted  with
\nany  immorality  or  illegality  and  he  refused  to  part  with  the  sum of
\nRs.25,000\/- retained under the sale deed excepting for the  purpose  specified
\nin  the  document  and  that has triggered the filing of the unjust and unholy
\nsuit.  It is his further case that he has spent a sum of  Rs.70,000\/-  towards
\ndeepening the well, laying two bores and for putting channel and planted about
\n250 coconut trees and he is entitled to compensation if a decree is passed.\n<\/p>\n
        5.   The  Trial Court framed 9 issues and the first plaintiff examined
\nhimself as P.W.1 and examined P.W.2 on his side and marked Exs.A1 to  A10  and
\nthe  third defendant examined himself as D.W.1 and examined D.Ws.2 to 7 on the
\nside of the defendants and marked Exs.B1 to B43 and Exs.C1  to  C3  were  also
\nmarked  and  the  Trial  Court,  on  a  consideration  of oral and documentary
\nevidence, held that the  plaintiffs  have  not  proved  the  alleged  acts  of
\nimmorality  and  illegality  on  the part of the first defendant and the first
\ndefendant sold the suit properties in order to discharge the antecedent  debts
\nfor  family necessity and the sale deed cannot be set aside as invalid and the
\nsuit is barred by limitation and the  plaintiffs  are  not  entitled  for  the
\nreliefs prayed  for  and  dismissed  the  suit  with  costs.  Aggrieved by the
\njudgment and decree, the plaintiffs have preferred the present  appeal.    The
\nfirst respondent-Ammaniammal, who is the second defendant in the suit, did not
\nenter  appearance  in person or through counsel and her name is printed in the
\ncause list.  Notice to Respondents 3 to 5 is dispensed with  since  they  were
\nexparte in  the  trial  Court.  For the sake of convenience, in this Judgment,
\nthe parties are described as arrayed in the suit.\n<\/p>\n
        6.  The points for determination in this appeal are:\n<\/p>\n
1.Whether the  sale  deed  dated  11.5.1972  is  valid  and  binding  on  the
\nplaintiffs.\n<\/p>\n
        2.Whether  the  plaintiffs  are entitled to partition and allotment of
\nseparate share, if so, what share.\n<\/p>\n
        3.  Whether the plaintiffs are entitled to the relief of  cancellation
\nof sale deed to the extent of their share.\n<\/p>\n
        4.    Whether  the  third  defendant  is  entitled  to  the  claim  of
\nimprovements.\n<\/p>\n
        5.  Whether the suit is barred by limitation.
\nPOINTS 1 to 3:\n<\/p>\n
        7.  Admittedly, the suit properties measuring 13 acres  and  28  cents
\nare  ancestral  joint family properties of Rengappa Naidu who died on 4.5.1956
\nprior to coming into force of Hindu Succession Act, leaving his widow Ellammal
\nand his son and daughter viz., defendants 1 and 2.  As per the  provisions  of
\nCentral  Act  18  of  1937,  the legal heirs were son, grandsons and widow and
\nwidow Ellammal died on 11.12.1968 and succession to her property was  governed
\nby Central Act 30 of 19 56 and the second defendant was also a Class I heir of
\nher.  Hence defendants 1 and 2 were sharers to the suit properties.  The first
\ndefendant for himself and on behalf of his minor sons viz., the plaintiffs and
\nthe second defendant for herself sold the suit properties by a registered sale
\ndeed  dated  11.5.1972  to  the  third  defendant  for a sale consideration of
\nRs.65,000\/-.  Ex.B3 is the registered sale deed dated 11.5.1972 and  Ex.A1  is
\nits registration  copy.    After attaining majority, the plaintiffs have filed
\nthe present suit in the year 1981 seeking for cancellation of the sale deed to
\nthe extent of their 9\/16 share value and for partition and separate possession
\nof their share.\n<\/p>\n
        8.  The learned counsel for the  appellants,  in  his  memo  dated  20
\n.1.2006,  has  stated  that  each  plaintiff  is entitled to 1\/8 share and put
\ntogether, they are entitled to 3\/8 shares only in the suit properties.    This
\nquantum of shares is also accepted by the learned counsel for the respondents.
\nHence  it is determined that the plaintiffs are entitled to 3\/8 shares only in
\nthe suit properties.\n<\/p>\n
        9.  The plaintiffs have stated in the plaint that the  sale  deed  was
\nnot supported by consideration and there is no legal necessity to alienate the
\nsuit lands and the debts quoted in the sale deed are sham and nominal and they
\nare  incurred  and  tainted with immorality and those debts are not binding on
\nthe plaintiffs and the trial Court, on the  basis  of  the  evidence  adduced,
\nconcluded  that  the  act  of immorality or illegality attributed to the first
\ndefendant has not been established or proved by the plaintiffs.   The  learned
\ncounsel  for  the  appellants  represented  that  he  is  not  canvassing  the
\ncorrectness of the above finding and he did not press the plea  of  antecedent
\ndebts being tainted with immorality or illegality made in the plaint.\n<\/p>\n
10.   The  learned counsel for the appellants further contended that as stated
\nby him in the memo, out of the total sale consideration of Rs.65,000\/-, a  sum
\nof  Rs.40,000\/- went in discharge of antecedent debts and the alienation could
\nbe supported on the ground of necessity to that extent  and  he  confined  his
\nargument  only  to  the  extent  that  the sale could not be supported for the
\nremaining sale consideration of Rs.25,000\/- on the ground of  benefit  to  the
\nfamily.  In view of the above submission, it is determined that the antecedent
\ndebts amounted to Rs.40,000\/- and part of sale consideration went in discharge
\nof the same.\n<\/p>\n
        11.   The only question now remains for consideration is as to whether
\nthe sale in respect of the balance of sale consideration of Rs.25 ,000\/- could
\nbe supported either on the ground of  necessity  or  benefit  of  the  family.
\nThere  is  absolutely  no  evidence  of any other debt and there is nothing to
\nsuggest that the parties conceived of the sale in so far as the remaining sale
\nconsideration as an inevitable necessity.  As per  the  recital  in  the  sale
\ndeed,  the  vendee viz., the third defendant was asked to retain the remaining
\nsale consideration  of  Rs.25,000\/-  till  the  vendors  purchase  some  other
\nproperties  in  the  names  of  minor children of the first defendant and till
\nthen, the third defendant agreed to pay interest thereon  at  10%  per  annum.
\nThe above recital makes it clear that the sale with regard to consideration of
\nRs.25,000\/- is only on the ground of benefit of the family.\n<\/p>\n
        12.   The learned counsel for the appellants contended that in case of
\nalienation for the purpose of family benefit, the alienee has  to  prove  that
\nthe  sale  consideration  was actually utilised for the purpose of purchase of
\nother lands for the benefit of the family and in the absence of such evidence,
\nthe sale cannot be taken for the benefit of the family and mere  retention  of
\nthe amount in the hands of the alienee for the purchase of the lands would not
\nsuffice and there must be actual proof of purchase of other lands.  He further
\ncontended  that  the  plaintiffs  3\/8  shares  in the sale consideration would
\nroughly come to Rs.25,000\/- and their share in the suit  properties  would  be
\napproximately  5 acres and there is no need for the kartha to sell those lands
\neither for necessity or for the benefit of the family  and  the  sale  is  not
\nbinding  on  the  minors and the plaintiffs are entitled for the relief sought
\nfor in the suit.  In support of his contention, he  relied  on  the  following
\ndecisions.\n<\/p>\n
        13.  A Division Bench of this Court in the decision in SENGODA GOUNDAN
\nv.  MUTHUVELLAPPA GOUNDAN (AIR<\/a> 1955 Madras 531), considered the question as to
\nwhether  the  alienation  could  be  justified on the ground of benefit to the
\nfamily when the minors share of the consideration  had  been  left  with  the
\nvendee as per the recital of the sale deed and laid down the law as under:
\nIn  the  absence, therefore, of any proof of utilization of the sale proceeds
\nin the purchase of other property for  the  family,  we  must  hold  that  the
\nalienations were  not  for  the  benefit  of  the family.  In this view, it is
\nimmaterial whether the plaintiffs share of the consideration was received  by
\nthe  mother  in any of these transactions or whether the plaintiffs share was
\nretained by the respective vendees.  We agree with Subba Rao,  J.    that  the
\nalienations  were  not  for  the  benefit of the family and therefore were not
\nbinding on the plaintiff.\n<\/p>\n
14.  In the decision in A.SUBRAMANIAN ASARI v.  JAYADEVAN NAIR AND OTHERS<\/a>  (98
\nL.W.   215),  a  Division  Bench of this Court followed the above decision and
\nincorporated the above referred to para of the Judgment and held as follows:
\nTherefore the view taken by Ramanujam, J., that since the 9th  defendant  had
\nnot  proved  the  utilisation  of 6,065 fanams for purchase of another item of
\nproperty for the benefit of the family, the sale  cannot  be  held  valid,  is
\nfully in accordance with law.\n<\/p>\n
15.   A  learned  single  Judge  of this Court in the decision in KRISHNASWAMI
\nNAIDU v.  VELUMANI & OTHERS (1974 T.L.N.J.  139) considered the question as to
\nwhether the sale can be held to be for the benefit of the joint  family,  even
\nthough  the  sale  proceeds  have not been utilised for the purchase of better
\nlands and observed thus:\n<\/p>\n
But the courts have always made a distinction between an alienation made  for
\nlegal necessity  and  one made for the benefit of the family.  In cases coming
\nunder the  former  category,  the  alienation  is  upheld  even  if  the  sale
\nconsideration has not been utilized as was expected of the manager at the time
\nof  entering  into  the transaction as the alienee need not look to the proper
\napplication of the sale proceeds.  But as  already  stated,  the  courts  have
\nconsistently  taken the view that in the latter type of cases, the alienee has
\nto prove that the sale consideration was actually utilised for the purpose  of
\npurchasing other lands for the family and that in the absence of such evidence
\nthe alienation cannot be taken to be beneficial for the family.<\/p>\n
16.   Per contra, the learned counsel for the second respondent contended that
\nthe amount of Rs.25,000\/- retained with the vendee viz., the third  defendant,
\nis the sale price amount and not reserved amount at the disposal of the vendee
\nand  the sale is already over and the evidence adduced would prove the payment
\nof interest by the vendee and there is no plea in the plaint that  some  other
\nproperty  was  not  purchased and the vendee is always ready to pay the amount
\nand it is not obligatory on the  alienee  to  prove  that  the  necessity  was
\nfulfilled in accordance with the recitals contained in the sale deed and it is
\nnot  necessary  for  him  to show that every bit of consideration was actually
\napplied for meeting the family necessity and the first defendant was alive  on
\nthe  date  of  filing  of  the suit and he remained exparte and encouraged the
\nlitigation as suthrathari and the suit is a collusive one.   In  support  of
\nhis contention, he relied on the following decisions:\n<\/p>\n
        17.  The Privy Council has observed in SRI KRISHNADAS v.  NATUHRAM AND
\nHIMMAT RAI v.   DIN  DAYAL  (  A.I.R.    1927 P.C.  37 and 1121) that what the
\nalienee is required to establish is legal necessity for the transaction, it is
\nnot necessary for him to show that every bit of the consideration was actually
\napplied for meeting family necessity and he  can  rarely  have  the  means  of
\ncontrolling  and  directing the application of the money paid by him unless he
\nenters into the managements himself.\n<\/p>\n
18.    A   Division   Bench   of   this   Court    in    the    decision    in\nSANTANAVENUGOPALAKRISHNAN AND  OTHERS  v.    K.V.VENUGOPAL AND OTHERS (1976 II\nM.L.  J.  134) held as follows:\n<\/pre>\n
Antecedent debt has a special signification.  If the debts are  incurred  for
\npaying  off debts already in existence, then it will be normally understood as
\nan occasion in which an antecedent debt is being discharged.  It is therefore,
\nessential that in such connections wherein alienations are made so as  to  pay
\noff  antecedent  debts in the sense of debts which are recited in a registered
\nand old document as existing debts of the family, the minor  should  be  in  a
\nposition  to bring home to the Court that there was no occasion or there could
\nhave been no occasion for the father-manager or any other manager of the joint
\nfamily to involve himself in such entrepreneurship.  ..    Further  in  cases
\nlike  this,  it  would  be  a  practical  impossibility for the alienee who is
\nbrought to the threshold of the Court on  the  facts  adverted  by  the  minor
\nchallenging  coparcener to prove that the consideration which passed under one
\nor other alienations made by the father-manager or the manager was  rightfully
\nor properly  utilised  by  their  vendors.  It would be unreasonable to expect
\nsuch meticulous proof of appropriation and  treatment  of  such  consideration
\nnearly 15 or 20 years after the date of such alienation.\n<\/p>\n
19.  In  K.VENKATASUBRAMANIAM  v.   S.ARTHANARISWARI CHETTIAR AND OTHERS (1980
\nT.L.N.J.  417), a Division Bench of this Court held as follows:
\nIn paragraph 245 at page 308 of Mullas Hindu Law,  Fourteenth  Edition,  the
\nseveral  cases  in which the sales were upheld unconditionally, though part of
\nthe sale consideration was not established to be for discharge  of  antecedent
\ndebt have  been  collected.    The  principle  that  is  deducible  from these
\ndecisions is that the mere fact that part of the price was not  proved  to  be
\napplied  for  the  purpose  of necessity would not invalidate the sale, as the
\npurchaser was only expected to make  enquiries  about  the  existence  of  the
\nantecedent  debts  and  that  he  was  not bound to see the application of the
\nprice.  But the binding purpose must have formed a  substantial  part  of  the
\ntransaction.  ..   It may be that in very many cases it would not be possible
\nto alienate just the particular part  of  the  family  property  in  order  to
\ndischarge the  binding  debts.   It would, therefore, be necessary to sell the
\nproperty for the available price and discharge  substantially  the  antecedent
\ndebts  out  of  the  sale consideration, the balance being utilised for family
\npurposes.  But this is not such a case.  The consideration of  the  antecedent
\ndebts being  less  than  one-half of the actual consideration.  The alienation
\ncannot be supported as binding on the family, and  will  not  bind  the  third
\ndefendant.\n<\/p>\n
20.   A Full Bench of the Allahabad High Court in the decision in JAGAT NARAIN
\nAND ANOTHER v.  MATHURA DAS AND OTHERS (A.I.R.  1928 Allahabad 454) held  that
\nthe  degree  of  prudence of the family manager in effecting an alienation for
\nthe benefit of the estate would be the prudence which an  ordinary  man  would
\nexercise  with  the knowledge available to him; and that the transaction would
\nhave to be judged not by its results, but by what might have been expected  to
\nbe its results at the time it was entered into.\n<\/p>\n
        21.   Insofar as alienation for legal necessity is concerned, all that
\nalienee will have to prove is the existence of the necessity  and  it  is  not
\nobligatory  on him to prove that necessity was fulfilled by proper application
\nof the sale proceeds since  he  cannot  effectively  control  and  direct  the
\nactions of the vendor.\n<\/p>\n
        22.   In  the  present  case,  as already seen, the sale in respect of
\nconsideration of Rs.40,000\/- could be supported on the ground of necessity and
\nthe sale for the balance of consideration of Rs.25,000\/- towards  the  minors
\nshare,  has to be justified on the ground of benefit of the family even as per
\nthe recitals in the sale deed.  The vendee  viz.,  the  third  defendant,  was
\nasked  to  retain the remaining sale consideration of Rs.25,000\/-, towards the
\nminors share, to enable the vendors to purchase some other properties for the
\nbenefit of minors in their names and till then, the third defendant agreed  to
\npay interest  thereon  at  10%  per  annum.  The plaintiffs in the plaint have
\nstated that the third defendant is not paying any interest on the sum retained
\nby him for the benefit of the minors and for acquisition of property  for  the
\npast many  years.    In  the written statement, the third defendant has stated
\nthat he has paid a sum of Rs.12,800\/- towards interest to the first  defendant
\nby  obtaining  receipts  and  when  he  was not willing to part with the money
\nretained excepting for the purpose mentioned in the sale deed, the  plaintiffs
\nhave filed  the  unjust  suit.    Hence,  there  are  pleadings with regard to
\npurchase of some other property and the contention of the learned counsel  for
\nthe second respondent that no plea was taken in the plaint, is not correct.\n<\/p>\n
        23.   The third defendant in his cross-examination as D.W.1 has stated
\nthat he paid a sum of Rs.12,800\/- to the first defendant as  interest  on  the
\nretained  amount  and  Exs.B33  to  B36  receipts  are  evidencing  the  same.
\nAdmittedly, after 1980, the vendee viz., the third defendant has not paid  the
\ninterest amount  till today.  No other property has been purchased in the name
\nof minors utilising the retained amount..  The learned counsel for the  second
\nrespondent  contended  that there is no obligation cast on the third defendant
\nto effect the purchase on behalf of minors and he was only asked to retain the
\namount and to pay it as and when some other property is purchased in the  name
\nof  minors  and the third defendant is always ready to handover the amount for
\nthat purpose.  The question is as to whether the alienation of  minors  share
\nwas for the benefit of the family.  In the absence of any proof of utilization
\nof  the  sale  consideration  of  Rs.25,000\/-  in  the  purchase of some other
\nproperty for t he minors, it must be held that the alienation of  the  minors
\nshare was  not  for the benefit of the family.  In that view, it is immaterial
\nwhether the minor’s share  was  retained  with  the  vendee  viz.,  the  third
\ndefendant.   Therefore,  the sale deed in respect of the minors 3\/8 shares is
\nnot binding on the plaintiffs and liable to be cancelled.  The plaintiffs  are
\nalso  entitled  to partition and separate possession of 3\/8 shares in the suit
\nproperties.  The findings of the Trial Court in this regard are liable  to  be
\nset aside.  The Point Nos.1 to 3 are answered accordingly.
\nPOINT No.4:\n<\/p>\n
        24.   The third defendant in his written statement has claimed that he
\nhas improved the lands by spending a sum of Rs.70,000\/- towards deepening  the
\nwell,  laying  two  bores  and for putting channel and has planted 250 coconut
\ntrees by incurring an expense of Rs.10,000\/-.  No document has been  filed  to
\nprove  the  alleged improvements and no independent witness has been examined.
\nThe third defendant, in his cross-examination as D.W.1, has stated that he has
\nnot maintained accounts for digging and deepening the well and for laying  the
\nbores  and  in  the very next sentence, he has stated that he has got accounts
\nfor deepening the well but he has not filed the same.  Nothing  prevented  the
\nthird  defendant  from  seeking for an appointment of Advocate Commissioner to
\nvisit the suit property for the purpose of proving the improvements  and  that
\nhas not been done.  Except the oral testimony of the third defendant, no other
\nevidence is available on record for the claim of improvements.  In the absence
\nof  proof  of improvements made, it has to be held that the third defendant is
\nnot entitled to the claim.  Point No.4 is answered accordingly.
\nPOINT No.5:\n<\/p>\n
        25.  The finding of the  Trial  Court  that  the  suit  is  barred  by
\nlimitation  since  it  was  not  filed within three years from the date of the
\nknowledge of the sale as per Section 59 of the Limitation  Act,  is  erroneous
\nand cannot  be  sustained.   The correct provision of law applicable under the
\nLimitation Act is only Article 109 and the suit having been filed in the  year
\n1981,  within  12 years from the date of sale viz., 11.5.1972, is within time.
\nPoint No.5 is answered accordingly.\n<\/p>\n
        26.  The appeal is allowed and the judgment and decree  of  the  Trial
\nCourt  are  set aside and there shall be a decree for cancellation of the sale
\ndeed dated 11.5.1972 executed by the defendants 1 and 2 to the extent  of  the
\nplaintiffs  3\/8  share  value  and  also  a  preliminary  decree is passed for
\npartition of the suit properties and separate possession of 3\/8 shares of  the
\nplaintiffs with  costs throughout.  The plaintiffs shall pay Court fees in the
\nsuit as well as in the appeal.  Time three months.\n<\/p>\n
Index:  yes.\n<\/p>\n
Internet:  yes.\n<\/p>\n
Vks<\/p>\n
To<\/p>\n
1.The Sub-Court, Coimbatore.\n<\/p>\n
2.The Section Officer,
\nV.R.Section, High Court,
\nMadras.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court R.Sridharan vs Ammaniammal on 14 March, 2006 IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14\/03\/2006 CORAM THE HON’BLE MR.JUSTICE C.NAGAPPAN A.S.No.1186 of 1990 1.R.Sridharan 2.R.Balasundaram alias Balasubramaniam 3.R.Narendra Mahesh alias Mahesh Kumar (major) (3rd Appellant declared as major vide order of Court dated 3.3.2006 made in C.M.P.No.1127\/2006) .. Appellants -Vs- […]<\/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-55801","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nR.Sridharan vs Ammaniammal on 14 March, 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\/r-sridharan-vs-ammaniammal-on-14-march-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"R.Sridharan vs Ammaniammal on 14 March, 2006 - 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