Dismissed

Sekar, v. Sivakumaran

Madras HC7 Apr 2011SA/195/2011

Case brief

AI extract

What is this about?

In a second appeal concerning a property dispute, the High Court dismissed the appeal, holding that the trial of title was barred by Section 44 of the Limitation Act because the mother sold the property as an absolute owner rather than as a guardian. The court ruled that since the plaintiffs were not 'eo nomine' parties to the sale deed, they could claim constructive possession through the prior v

What did the court decide?

Second appeal dismissed; judgment and decree of the first appellate court restored.

Sekar, Vs Sivakumaran — Partition | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED:07.04.2011

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Coram:

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THE HONOURABLE MR.JUSTICE G.RAJASURIA

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S.A.No.195 of 2011

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Sekar ... Appellant/1st Respondent/1st Defendants

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vs. 1. Sivakumaran 2. Sakthimurugan 3. Sivasankaran ... 1 to 3 Respondent/Appellants/Plaintiffs 4. Siva ... 4th Respondents/2nd Respondent/2nd Defendants This second appeal is filed against the judgement and decree dated 28.09.2010 passed by the learned I Additional Subordinate Judge, Villupuram in A.S.No.41 of 2010 in reversing the judgment and decree dated 17.02.2010 passed by the Principal District Munsif, Ulundurpet in O.S.No.146 of 2008. For Appellant : Mr.P.Jayaraman Senior counsel for Mr.K.Srinivasan For Respondents : Mrs.Hema Sampath 1 to 3 Senior counsel for Ms.R.Meenal JUDGMENT This second appeal is focussed by the first defendant inveighing the judgement and decree dated 28.09.2010 passed by the learned I Additional Subordinate Judge, Villupuram in A.S.No.41 of 2010 in reversing the judgment and decree dated 17.02.2010 passed by the Principal District Munsif, Ulundurpet in O.S.No.146 of 2008. 2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.

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A recapitulation and resume of the relevant facts, absolutely necessary and germane for the disposal of this second appeal would run thus:

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a. The plaintiffs filed the suit seeking declaration and permanent injunction concerning the land as found described in the plaint as against the defendants.

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b. The defendants filed the written statement resisting the suit.

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c. Whereupon issues were framed. During trial, on the side of the plaintiffs, the second plaintiff Sakthimurugan, examined himself as PW1 along with PW2 and marked Exs.A1 to A10. On the defendants' side, D1 and D2 examined themselves as D.Ws.1 and 2 along with DW3 and DW4 and marked Exs.B1 to B5.

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d. Ultimately, the trial court dismissed the suit. As against which, appeal was filed by the plaintiffs, whereupon, the appellate court reversed the finding of the trial court and decreed the suit as prayed for granting declaratory relief as well as permanent injunction.

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e. Challenging and impugning the judgment and decree of the first appellate court, D1 has preferred this second appeal on various grounds and also suggesting the following substantial questions of law:

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Whether the first appellate court is correct in passing decree and judgment in favour of the appellant in a time barred suit?

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Whether the first appellate court is correct in passing the decree and judgment of title for declaration and permanent injunction without setting aside the registered sale made by the guardian?

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Heard both sides.

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The gist and kernel of the arguments of the learned senior counsel for D1/appellant would run thus:

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i) The trial court correctly appreciated the facts and arrived at the conclusion that the suit was not filed within the three years even though admittedly, the first plaintiff became major long prior to the three years' period anterior to the filing of the suit.

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ii) The mother of the plaintiffs sold the suit property and in such a case, they should have necessarily asked for setting aside the sale deed Ex.A4 dated 17.02.1999, which emerged in favour of D2, the guardian of his minor children and the subsequent sale deed Ex.B2 dated 05.05.2008, which emerged in favour of D1.

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iii) The first appellate court wrongly held as though "title follows possession" and that the first appellate court also miserably failed to consider that patta was changed in favour of D1 after cancelling the patta in the name of the plaintiffs.

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iv) Ex.A4 emerged among close relatives. It is not as though the purchaser of the property, Siva under Ex.A4 sale deed is an utter stranger to the family of the plaintiffs.

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Accordingly, the learned senior counsel for the appellant/first defendant prays for setting aside the judgment and decree of the first appellate court and for restoring the judgement and decree passed by the trial court in dismissing the original suit.

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Per contra, in a bid to torpedo and pulverise and to take the edge off the argument as put forth on the side of the appellant/first defendant, the learned senior counsel for the respondents 1 to 3 /plaintiffs would advance her argument, the pith and marrow of them would run thus:

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a] In Ex.A4 the sale deed dated 17.02.1999 the mother of the plaintiffs did not project herself as the guardian for the then minors, viz., the plaintiffs. She executed Ex.A4 in her own capacity as though she happened to be the absolute owner of the suit property and in such a case, the plaintiffs were not under any legal necessity to seek for getting set aside the sale deed Ex,.A4 and subsequently Ex.B2, which emerged after Ex.A4.

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b] The question of pressing into service the limitation point would not arise for the reason that the plaintiffs were not eonomine parties to Ex.A4; when necessity arose for the plaintiffs, they did choose to file the suit for declaration and for injunction and in such a case, there is no question of filing the suit within three years after attainment of majority of any one of the minors would arise in this case.

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c] Placing reliance on Ex.A6 dated 30.03.2005 and Ex.A7 dated 21.11.2007 the revenue records, the learned senior counsel for the plaintiffs would submit that long prior to the filing of the suit, patta emerged in favour of the plaintiffs. However, there is nothing to indicate and convey that the alleged predecessor in title so to say D2, was in possession and enjoyment of the suit property.

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Accordingly, she would pray for the dismissal of the second appeal.

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At the outset itself, I would like to fumigate my mind with the following principles as found enunciated and enshrined in the decision of the Hon'ble Apex Court reported in (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL.

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. . .

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(iii) The general rule is that High Court will not interfere with the concurrent findings of the Courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding."

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The other decisions emerged in this regard are as under:

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(i) (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi], certain excerpts from it would run thus: "19. It is manifest from a bare reading of the section that an appeal to the High Court from a decision of the Tribunal lies only when a substantial question of law is involved, and where the High Court comes to the conclusion that a substantial question of law arises from the said order, it is mandatory that such question(s) must be formulated. The expression "substantial question of law" is not defined in the act. Nevertheless, it has acquired a definite connotation through various judicial pronouncements.

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A finding of fact may give rise to a substantial question of law, inter alia, in the event the findings are based on no evidence and/or while arriving at the said finding, relevant admissible evidence has not been taken into consideration or inadmissible evidence has been taken into consideration or legal principles have not been applied in appreciating the evidence, or when the evidence has been misread."

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(ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.

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(iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL

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A mere poring over and perusal of those judgments would convey and spotlight that the High Court while exercising its power under Section 100 of CPC should see as to whether any substantial question of law, is involved in the matter.

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Admittedly or at least undeniably, Ex.A4 the sale deed dated 17.02.1999 is ex facie and prima facie clear that it was executed by Kamalammal the mother of the plaintiffs not as guardian for them, but in her own capacity in favour of D2- Siva, who purchased the property as guardian for his minor children. The recitals in Ex.A4 are worthy of being extracted here under:

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@ ////////////////vd; nghpy; Rakha; fpiuak; th';fp vdf;Fr; brhe;jkha; ehd; mDgtpj;J tug;gl;l ,jdoapy; fz;l brhj;ij j';fSf;F Rj;jtpw; fpiuak; bra;Jf; bfhLj;J j';fsplj;jpy; ehd; vd; ////////////////////////////////////////@

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It is therefore crystal clear that the vendor, viz., Kamalammal did not project herself in Ex.A4 as the guardian of the minors. On the other hand, throwing to winds the very existence of Ex.A3 the sale deed dated 24.08.1993 under which Kamalammal projected herself as the guardian for the then plaintiffs and purchased the suit property sold it as per Ex.A4. Had Ex.A4 emerged under normal circumstances, then the recitals should have been to the effect that Kamalammal for and on behalf of her then minors, viz., the plaintiffs sold the property in favour of D2 and that too after detailing and delineating the particulars relating to Ex.A3. In fact, the antecedent title deed Ex.A3 should have got reflected in Ex.A4 and Kamalammal should have projected herself as guardian for the minors and if all those factors existed in Ex.A4, then without any hesitation, this court could hold that the suit filed presently by the plaintiffs was bad for want of a prayer for getting set aside the sale deed Ex.A4 executed by their mother. But that is not the case at all here.

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Hence, it is quite obvious and axiomatic that the plaintiffs were not under any legal necessity to pray for setting aside or cancelling the sale deed Ex.A4 and consequently, Ex.B2 the sale deed. In such a case, Articles 58 and 60 of the Limitation Act cannot be pressed into service even by any phantasmagorical thoughts.

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I would like to refer to the decisions cited on the side of D1/appellant. Certain excerpts from those decisions would run thus:

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(1999) 9 SCC 446 [ Madhukar Vishwanath vs. Madhao and others].

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"5. We do not think , given the state of the pleadings, that we can uphold the submission. The suit proceeded upon the basis that there was no legal necessity for Baburao to have alienated the said property. The plaint should, therefore, properly have pleaded for a declaration that the alienation was bad in law; possession was only the consequential relief. Even if the suit was entertained as pleaded, no decree for possession could have been passed without first finding that the alienation was not for legal necessity and was, therefore, bad in law. To such a suit the provisions of Article 60 apply. Article 60 relates to a suit to set aside a transfer of property made by the guardian of a ward by the ward who has attained majority and the period prescribed is three years commencing on the date on which the ward attains majority. The suit in the instant case was filed much after this period of three years had elapsed in August 1969."

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(2001) 6 CTC 163 [Vishwambhar and others vs. Laxminarayana (dead) through L.Rs and another]

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"10. From the averments of the plaint, it cannot be said that all the necessary averments for setting aside the sale deeds executed by Laxmibai were contained in the plaint and adding specific prayer for setting aside the sale deeds was a mere formality. As noted earlier, the basis of the suit as it stood before the amendment of the plaint was that the sale transactions made by Laxmibai as guardian of the minors were ab initio void and, therefore, liable to be ignored. By introducing the prayer for setting aside the sale deeds the basis of the suit was changed to one seeking setting aside the alienations of the property by the guardian. In such circumstance, the suit for setting aside the transfers could be taken to have been filed ont he date the amendment of the plaint was allowed and not earlier than that."

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AIR 1938 Madras 677 [ G.M.Kasim Ali and others vs. Ratna Manikka Mudaliar and others] Head Notes (c) and (d).

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"(c) The suit contemplated by Art.44 is a suit for possession and not a mere suit for declaration. Thus, such a suit must be instituted against the parties in possession including persons deriving title from the alienee.

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The position of alienees deriving title pendente lite is of course different, because they will be bound by the result of the suit against the alienee; but where the purchaser from the guardian had alienated the whole or a portion of the property before the suit, the alienee from the purchaser will certainly not be bound by any adjudication which the ward may obtain against the original purchaser. If the ward seeks to dispossess the second alienee, the question of the validity of the alienation must undoubtedly be re-tried, and the policy of Art.44 is that a question of that kind should be investigated and decided within a period of three years after the attainment of majority by the ward; and on principle, it can make no difference whether the later alienation is of the whole property or only of a part of the property.

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d) Though an alienation by the guardian of a minor was not warranted by law, the alienee may be entitled to the benefit of S.51, if the circumstances justify that he must have bona fide believed that he was absolutely entitled to the property and made improvements."

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2002(4) CTC 686 [ Veni and 3 others vs. Perumal and 2

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others]

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"15. Reliance is placed on the decision of a Full Bench of this court in the case of Doraiswami Sirumadan v. Nondisami Saluvan, 1913925) MLJ 405: ILR-32-Madras-118-FB wherein, on the date of institution of the suit, the 1^st plaintiff was 23 years old and the 2^nd plaintiff was 20 years old. Their case was that the suit was not barred by limitation as it was brought within 3 years of the 2^nd plaintiff attaining the age of majority. But, the Full Bench held that the claim being a joint claim and the suit having been brought more than 3 years after the attainment of majority by the elder brother (who was the Manager of the joint family, competent to give discharge)the claim was barred by limitation even in respect of the share of the younger brother, who had not yet completed 21 years. The facts and the principles laid down in the said case are squarely applicable to the case on hand."

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All those decisions in my considered opinion, were cited out of context. Those precedents are all relating to the set of facts where the guardian executed the sale deed for and on behalf of the minors and in such a case, the courts consistently held that the minors were expected to get such sales cancelled within three years from the date of the attainment of their majority.

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It is also quite obvious that if there is any joint claim by the minors and among them, if any one of them attained majority, then the three years limitation period should be computed from the date of the person, who attained majority first. But all those decisions would not enure to the benefit of D1 in this case, for the reasons set out supra.

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The concept "eo-nomine" as found defined in the Black's Law Dictionary, VI, Edition at page No.535 is extracted as under:

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"Under or by that name; by that appellation. Perinde ac si eo nomine tibi tradita fuisset, just as if it had been delivered to you by that name.

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An "eo nomine" designation is one which describes commodity by a specific name, usually one well known to commerce. Ordinarily, use is not a criteria in determining whether merchandise is embraced within eo nomine provision, but use may be considered in determining identity of eo nomine designation."

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In this connection, I will refer to the following Full Bench decision of this court reported in 1956 (II) MLJ 411 [ Sankaranarayana Pillai and another vs. Kandasamia Pillai] and certain excerpts from it would run thus:

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"The principle deducible from this case is that where the transaction is with regard to the properties of the minor, it should be deemed as if he is eo nomine a party. At page 24 we find the following observation:

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"Their Lordships think it is clear that the words the 'transferor' refer back to the person who contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf. Thus the act of the mother and guardian in entering into the contracts of sale in the present case was an act done on behalf of the minor' and finally it was held that the 'person who most aptly answers the description of 'the transferor' in the sense in which these words are used in Section 53-A of the Transfer of Property Act is the minor himself".

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If the matter is looked at in this way there is no difficulty in reconciling the various cases and we do not propose to analyse at length the large body of case law cited at the Bar. The distinction between a void and voidable transaction has been brought out in a number of

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cases and we need only refer to a few of them: Chingacham Vitil Sankaran Nair v. Chingacham Vitil Gopala Menon, Bijoy Gopal Mukerji v. Krishna Mahishi Debi, Fakirappa Limmanna v. Lumanna Bin Mahadu, Bali Reddi v. Khatipulal Sab, Ankamma v. Kameswaramma, Raja Ramaswami v. Govindammal and Vallabhacharyulu v. Rangacharyulu. There is no doubt whatever that a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within three years of his attaining majority it becomes valid under Article 44 of the Limitation Act. In such a case the minor is deemed to be a party to the transaction. But where the document is executed by a manager of the family and it is not binding on the family, the minor or any other member can ignore the transaction and recover possession of the property. To such a case Section 7(v) of the Court fees Act will apply. We are here not concerned with decrees to which the minor is eo nomine a party. Our answer to the first question is that if the minor is eo nomine, a party to a sale-deed or other document of alienations, he must sue for the cancellation of the document under Section 7 (ivA) of the Court fees Act and it is not enough if he applies for possession under Section 7(v) of the Act; and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also the document has to be set aside.

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After expression of the above opinion by the Full Bench, the case came on for hearing and the Court (Panchapakesa Ayyar, J) delivered the following:

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JUDGMENT:- The Full Bench has held that Court-fee has to be paid in this case under Section 7 (iv-A) of the Court Fees Act. Therefore, this Civil Revision Petition must be allowed, and it is allowed with half costs both here and before the Full Bench. Advocate's fee of Rs.35 here and Rs.50 before the Full Bench. It is not known whether the valuation under Section 7 (iv-A) will come to over Rs.5,000/-. The learned District Munsiff will assess the valuation after hearing both sides. If it exceeds his jurisdiction he will return the plaint for presentation to the proper court."

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It is therefore clear that if all the plaintiffs happened to be the eo-nominee parties to Ex.A4, then they could be found fault with for having not filed the suit seeking for cancellation of the sale deed. As such, the first appellate court is right in its approach

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in holding that the suit was not barred by limitation. Whereas the trial court misdirected itself as though the mother of the plaintiffs executed Ex.A4 as guardian for the minors.

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There is one other point which should be taken note of. As on the date of the emergence of Ex.A4, the plaintiffs father was very much alive and he in fact, had signed according to D1, Ex.A4.

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The learned senior counsel for D1 would by placing reliance on that said fact try to project and put forth that since as per Hindu Law, the father happened to be the natural guardian for the minors and that he himself signed Ex.A4 as a witness, it should be taken that he signified his consent for such sale executed by the mother of the plaintiffs. I would like to hold that such an argument fails to pass muster and carry conviction with this court, for the reason that Ex.A4 was executed by Kamalammal not in her capacity as guardian of the minors, so to say, Kamalammal did not project herself in Ex.A4 as the guardian of the plaintiffs, but she went to the extent of portraying and projecting, detailing and delineating in Ex.A4 as though she was the absolute owner in her own name concerning the suit property and that she was selling the same in favour of D2.

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Hence, I am of the considered view that the arguments as put forth on the side of D1 do not hold water.

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The learned senior counsel for the plaintiffs/respondents 1 to 3 would cite the decision of this court reported in 1998(2) MLJ 173 [ T.M.Krishnamorrthy Pillai vs. Mangalam] and certain excerpts from it would run thus:

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"10. The next question that looms large for consideration as to the impact and legal effect of attestation by the father. In my view, the factum of attestation by the father to a transaction, which is otherwise void in law, has no legal consequence at all for the reason that such attestation does not have the effect of rendering the alienation indisputably made by the defacto guardian to be really that of the natural guardian in the course of proper and due exercise of the powers of such natural guardian. In any event, in my view, the significance of attestation in law is only to estop the attestor to the document from denying the contents of the document, that too, if the contents of the same and the legal implication of the attestation are shown to have been well within the knowledge of the attestor at the time of making such attestation and not help to make the attestor the real execution of the document itself. Consequently, in my view, the factum of attestation by the father does not give any sanctity to the transaction so as

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to make it his own document and so as to dispense with the statutory requirement of obtaining sanction from the competent court before alienation by the de facto guardian and to take the transaction outside the purview of the mandatory prohibition contained in Sec.11 of the Hindu Minority and Guardianship Act."

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A mere poring over and perusal of that judgement would display and demonstrate that the facts and circumstances involved there are similar to that of the ones concerning this case and that buttresses and fortifies the view taken by this court.

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Relating to possession is concerned, Ex.A6 could be relied on for the reason that the Tahsildar while passing the order relating to change of patta in favour of the plaintiffs clearly held that he made enquiries and arrived at the conclusion that the plaintiffs were in possession of the suit property in the year 2005. Ex.A7 is the actual patta relating to the suit property, which is standing in the name of the plaintiffs and Ex.B3 – the patta in the name of D1 emerged pendente lite and that cannot be relied upon.

¶85

I recollect the following maxim:

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jus superveniens auctori accrescit successori – A right growing to a possessor accrues to the successor.

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Possession by the predecessor in title would enure to the benefit of the successor. As such, if D1 could produce any document to evidence and establish that D2 was in possession and enjoyment of the suit property, then certainly that would enure to the benefit to D1. Absolutely, there is no iota or molecular extent of evidence produced to buttress and fortify the claim of D1 that D2n was in possession and enjoyment of the property. As such, the first appellate court while specifying the well known concept, wrongly described it as under:

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"Title follows possession".

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But it should be "possession follows title".

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As such, I am of the view that there is no illegality or perversity in the judgment rendered by the first appellate court in reversing the judgment and decree of the trial court.

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Wherefore, I am of the view that there is no question of law, much less substantial question of law is involved in this second appeal and I could see no reason to interfere with the judgment and decree of the first appellate court in decreeing the original suit.

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The learned senior counsel for D1 would try to canvass the point to the effect that D1 is an innocent purchaser for value without notice of any defect in the title and his title and possession should be protected in respect of the suit property.

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I would like to point out that such attributes cannot be attributed to D1 for the reason that had he taken steps to verify the antecedent title deeds, he could have easily as easy as A.B,C got unearthed the relevant position regarding the antecedent ownership over the suit property but he deliberately failed to do so or feigning ignorance.

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I also recollect the following maxim:
rerum suarum quilibet est moderator et arbiter –
Every one is the regulator and disposer of his own
property.
A person is expected to be cautious. Hence, I recollect and call up
the maxim – Magna culpa dolus est – great fault (or gross
negligence) is equivalent to fraud. As such, in view of the
conduct of D1, he cannot come and call upon this court to come to
his rescue and that too in the facts and circumstances of this
case.
23. Accordingly, this second appeal is liable to be dismissed
and the same is dismissed. However, there shall be no order as to
costs. Consequently, the connected miscellaneous petition is
closed.
vj2
Sd/-
Asst. Registrar
//True Copy//
Sub Asst. Registrar
To
1. The I Additional Subordinate Judge, Villupuram
2. The Principal District Munsif, Ulundurpet

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Copy to:

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The Section Officer, VR Section, High Court, Madras.

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1 cc to Mr. K. Srinivasan, Advocate SR No.25542

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1 cc to Mrs. R. Meenal, Advocate SR No.25029

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RSY(CO) SR/6.5.2011

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S.A.No.195 of 2011

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Sekar, v. Sivakumaran

Case brief

What is this about?

What did the court decide?

Sekar, v. Sivakumaran

Case brief

What is this about?

What did the court decide?

What the court decided

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