Partly allowed

Chennimalai Gounder v. Kaliappa Gounder(Deceased)

Madras HC14 Feb 2017SA/1516/2007

Case brief

AI extract

What is this about?

This second appeal concerns a partition suit involving properties inherited from an intestate father. The High Court held that a sale of the minor appellant's share by a non-guardian was void, not voidable. The court also found the plea of oral partition by defendants unsupported by conduct, modifying the decree to grant the appellant 1/3 share in two items and 1/2 share in the disputed item.

What did the court decide?

The judgment and decree of the first appellate court were set aside; the decree of the trial court was modified. The plaintiff is entitled to 1/3 share in items 1 and 3 and 1/2 share in item 2 of the

Chennimalai Gounder Vs Kaliappa Gounder(Deceased) — Partition | Madras HC (2017)

¶1

¶2

IN THE HIGH COURT OF JUDICATURE AT MADRAS

¶3

Reserved on:02.02.2017

¶4

Pronounced on:14.02.2017

¶5

Coram

¶6

The Hon'ble Dr.Justice G.Jayachandran

¶7

Second Appeal No.1516 of 2007

¶8

1.Chennimalai Gounder(died)

2.Subbayal

2.Ponnayal

4.K.S.Kumarasamy

5.K.S.Palanisamy gounder

¶13

(Appellants 2 to 5 brought on record as Lrs of the deceased sole appellant vide order of Court dated 21.2.2013 made in M.P.No.1 and 2 of 2008 in S.A.No.1516 of 2007)

¶14

.. Appellants

¶15

/versus/

¶16

1.Kaliappa gounder(deceased)

¶17

2.K.N.Subramaniam

¶18

3.K.N.Palanisamy

¶19

4.Kolandasamy(deceased)

¶20

5.K.M.Mani

¶21

6.Palanisamy

¶22

7.Deivasigamani

¶23

8.Valliammal

9.Palanisamy gounder

10.Subbaia gounder

11.Ponnusamy 12.Thangarasu 13.Valliammal 14.Karuppayal 15.Subbayal (respondents 5 to 15 are given up)

¶28

16.Valliammal 17.Thangavel

¶29

18.Venkatachalam

¶30

(RR16 to 18 brought on record as LRs of the deceased R1 vide order of Court dated 21.11.16 C.M.P Nos.17376 to 17378/2016 in S.A.No.1516 of 2007)

¶31

19.Poongodi

¶32

20.Magudeshwaran

¶33

(RR19 and 20 brought on record as LRS of the deceased R4 vide Order of Court dated 21.11.2016 made in C.M.P.Nos.17379 to 17381 of 2016 in S.A.No.1516 of 2007)

¶34

..Respondents

¶35

Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree of the learned Principal District Judge of Erode District at Erode in A.S.No.97 of 2006, dated 07.08.2007 reversing the judgment and decree of the learned First Additional Subordinate Judge, Erode in O.S.No.201 of 1995 dated 28.11.2005.

¶36

¶37

For Appellants :Mr.N.Manokaran

¶38

For Respondents :Mr.A.Nilaphar for Ms.R.Meenal for R1 to R4, 16 to 20 R5 to R15 given up

¶39

J U D G M E N T

¶40

The Legal heirs of the sole plaintiff are the appellants herein. The suit for partition in respect of suit schedule properties was allowed by the trial Court, but reversed in the appeal.

¶41

The suit schedule consists of three items. In respect of the

¶42

2^nd item of the suit schedule property, the plaintiff claim was that he purchased undivided 1/2 share from one Chenniappan on 31.10.1953 and the remaining 1/2 share was jointly purchased by him and his brothers Nachiappa Gounder and Marappan gounder from Rasayammal on 25.10.1965. Thus, he is entitled for 4/6 share in the 2^nd item

¶43

property. In so far as 1^st and 3^rd items of properties, his father Marappa Gounder purchased it and after his death intestate, it devolved upon him and his two brothers. Thus, he is entitled for 1/3 share in those two items of property. This was contested by his brothers and brothers' legal heirs. According to them, Rasayammal sold the entire extent of

¶44

¶45

14.06 acres of land mentioned as 2^nd item of the suit schedule property to them on 10.06.1953 on her behalf and on behalf of Chenniappan, who was minor at that point of time. Therefore, the later sale deed purported to be executed by Chenniappan on 31.10.1953 and by Rasayammal on 10.06.1965 is invalid.

¶46

In respect of 1^st item of the property, there was an oral partition between the brothers and in the said partition, this property was alloted to Nachiappa Gounder, the first defendant. Since then, he is in possession and enjoyment of the 1^st item of property. This property has been re-surveyed and new suvey number was asssigned and patta is in his name. The suit properties were never in joint possession.

¶47

In respect of 3^rd item of the property, it was included later by way of amendment, after a plea of partial partition raised by the defendants in their additional written statement, in which, it was averred that, the 3^rd item of the property situated in re-survey No. 46, old S.F.No 248/A in Veerasangali village was purchased by his father Marappa Gounder on 25.10.1937. He purchased undivided 2.31-1/2 acres in 6.04 acres. During the partition among the sons of Marappa Gounder, major portion was allotted to the plaintiff and other deceased

¶48

¶49

brother Marappan. (his Legal representatives are defendants 5 to 8 and they remind ex-parte in the suit). Only a small portion was given to first defendant. The non inclusion of this property renders the suit for partition not maintainable.

¶50

The trial Court allowed the suit holding that the sale deed Ex.B-2, dated 10.06.1953 executed by Rasayammal on her behalf and

¶51

on behalf of minor Chenniappan in respect of 2^nd item is void. The oral partition pleaded by the defendants in respect of items 1 and 3 of the properties is not proved.

¶52

On appeal, the lower appellate Court reversed the finding

¶53

of the trial Court on the ground that, patta issued in favour of the defendants based on the re-survey proceedings proves the oral partition. The minor Chenniappan, after attaining majority, ought to have challenged the validity of Ex.B-2, within a period of limitation prescribed under Article 65 of the Limitation Act, 1963. Without filing a suit to set aside the sale effected by the defacto guardian, within three years from attaining majority, he has sold the property to the plaintiff. PW-2 had no title to convey under Ex.A-3 to the plaintiff. Therefore, allowed the appeal and dismissed the suit.

¶54

¶55

This Court, while admitting the second appeal, has

¶56

formulated the following Substantial Question of Law for consideration:-

¶57

“(1)Is the lower appellate Court justified in holding that even when an alienation is made by minor's property by a person who is neither a natural guardian or a defacto guardian, the minor on attaining majority within 3 years must file a suit to set aside the sale?

¶58

(2)Is the lower appellate Court justified in holding that the oral partition pleaded by the defendants is acceptable, without any discussion on the same?”

¶59

The learned counsel for appellants submitted that, Rasayammal is neither the mother or natural guardian of the minor Chenniappan. Before executing Ex.B-2, she did not obtain the court permission to sell the interest of the minor. Therefore, such sale is nonest in law. It is a void transaction and not voidable at the instance of the minor. Therefore, there is no need to question its validity before the Court of law and to seek declaration. The lower appellate court in-prudent in rejecting the evidence of P.W-1 on the ground that, his father, who is the plaintiff, did not mount the witness box. It has wilfully ignored the order passed in I.A.No.730/2005 by the trial Court before

¶60

¶61

permitting P.W-1 to enter into the witness box. It has been categorically stated in the above petition that Chennimalai gounder, the plaintiff who was 80 years old at the point of time, was suffering from lapse of memory and lost the competency to give evidence. For the said reason, permission was sought to eschew his chief examination and permit his son to give evidence and the trial Court allowed the petition. The defendants did not challenge the order passed in I.A.No.730/2005. While the fact being so, the trial Court, unmindful of the above fact and law of evidence, has rejected the occular evidence of PW-1 and drawn adverse inference against the plaintiff.

¶62

Per contra, the learned counsel appearing for the respondents defended the lower appellate Court judgment on the ground that in so far as the 2^nd item of the suit schedule property is concerned, Rasayammal got the property through decree of reconveyance in O.S.No.202 of 1939. The suit register extract in O.S.No.2021 of 39 marked as Ex.B1 clearly indicates that Rasayammal has represented the minor Chenniappan and got the decree on her behalf and on behalf of the minor Chenniappan. Pursuant to this decree, sale deed Ex.A2, dated 09.09.1940 was executed in favour of Rasayammal and Chenniappan. Later, she sold the property to the

¶63

¶64

respondents on 10.06.1953 on her behalf and on behalf of the minor Chenniappan for the benefit of the minor. If at all the minor is aggrieved any way by this sale, he should have agitated before the competent Civil Court to declare the sale deed executed by Rasayammal on 10.06.1953 is vitiated for want of court permission. An independent transaction by Chenniappan ignoring the earlier sale is against law. The first appellate Court has rightly dismissed the suit. Therefore, there is no necessity to interfere with the findings of the lower appellate Court.

¶65

Likewise, in so far as items 1 and 3 properties, the learned counsel appearing for the respondents submitted that after the oral partition in the year 1956, the parties are enjoying their respective properties independently, which is reflected in the patta and other revenue records marked as Ex.B4 to B12 and B14. Therefore, there is no error in the finding of the lower appellate court.

¶66

The un-disputed fact in this case is that the first item of the suit property measuring about 87 cents was purchased by Marappa gounder vide, Ex.A1 dated 13.05.1937 and the third item of the property was purchased by him on 25.10.1937. The said Marappa gounder died intestate leaving behind his three sons Chennimalai

¶67

¶68

gounder(the plaintiff), Marappa gounder and Nachiappa gounder. At the time of filing the suit, Marappa gounder was not alive and the suit was laid only against Nachiappa gounder. Meanwhile, Nachiappa gounder died and his legal representatives are impleaded as Defendants 2 to 4 and the legal representatives of Marappa gounder were brought on record as defendants 5 to 9. The third item of the suit property was included only as one of the suit property by way of amendment carried out in the year 1999.

¶69

In so far as the 2^nd item of the property is concerned, while the plaintiff claims over the property vide Ex.A3, dated 31.10.1953, a sale deed executed by Chenniappan in favour of Chinnamalai gounder (plaintiff herein) in respect of 7.30 acres of land out of 14.60 acres and Ex.A4, dated 25.10.1965, the sale deed alleged to have been executed by the legal representatives of Rasayammal in favour of Chennimalai gounder and his two brothers Nachiappa gounder and Marappa gounder in respect of remaining 7.03 acres of land out of 14.06 acres. Where as it is the case of the defendants, the entire extent of 14.06 acres of land, which forms part of the 2^nd item was purchased by Nachiappa gounder and his brother Marappa gounder from Rasayammal on 10.06.1953 vide Ex.B2. Rasayammal executed

¶70

¶71

the sale deed on her behalf and on behalf of the minor Chenniappan. She had absolute right to represent the minor, since she has represented him in the earlier suit in O.S.No.202 of 39 from which, she got the title of the suit property. It should be borne in mind that the transaction relied by the respondents is before enacting Hindu Minority and Guradianship Act, 1956. When the disputed transaction Ex.B2 took place the law governing the minor's property was Minority and Wards Act, 1890 and not the Hindu Minority and Guardianship Act, 1956. So, to test the validity of the transaction it is the law prevailed at that point of time and the pronouncement of Courts, in the light of that law alone is relevant.

¶72

It is also to be borne in mind that the subsequent enactment of Hindu Minority and Guardianship Act, 1956 is not in substitute to the earlier Act but only a supplement to the Guardians and Wards Act, 1890. With this basic understanding, if the facts of the case is analysised, it is clear that Rasayammal, who is neither the mother of the minor nor de-jure guardian of the minor, has alienated the property on her behalf and on behalf of the minor without the leave of the Court.

¶73

It is not the case of the respondents that Rasayammal

¶74

¶75

sold the property on behalf of the minor as a Manager of the Joint Hindu family. In fact, this property does not have the trappings of Hindu joint family property, because this property has been purchased through Court decree jointly by Rasayammal and the minor Chenniappan pursuant to the decree of re-purchase. Rasayammal is the sister of the minor Chenniappan's mother.

¶76

In judgment of Kerala High Court in Iruppakkatt Veettil Viswanathan's wife Santha v. Deceased Kandan's L.Rs. Wife Cherukutty and others[AIR 1972 Kerala 71(V.59 C 19)(1)], His Lordship Mr.Justice V.R.Krishna Iyer (as he then was) has succinctly laid

¶77

down the law governing such transaction in the following words:-

¶78

“3.......Leach, C.J., discussed these precise problems and held that such transactions in excess of the limited authority of the manager or guardian or widow did not require to be cancelled or set aside through court. In cases where minors are involved, the property may be owned by the joint family and although a junior member's presence or junction may be unnecessary, he may be joined in the transaction and got represented by the Kartha or some other person as his guardian. It may also be that where the property belongs to the minor and not to a joint family, a guardian may act on his behalf and that way it may be stated that the minor is eo nomine a party to the transaction. Leach, C.J., took the view that where decrees have been passed in suits to

¶79

¶80

which junior members or guardians have been made eo nomine a party, “such decrees bind him until set aside, and therefore he cannot seek to obtain a decision on the footing that his interest in the joint family property is not affected by them”. However, where transactions had not ripened into decrees, the learned Judge held that there was a substantial difference in the substantive law. His Lordship continued to deal with. It and observed:

¶81

“The other transactions of the first defendant, whether the plaintiff is made a party thereto or not, stand on a different footing. He is not bound under the substantive law by which he is governed, to sue for a declaration or cancellation in respect of any of them. The legal position has been correctly explained in Unni v. Kunchi Amma, ((1890) ILR 14 Mad 26 at 28), in the following words which were taken from an unreported decision of this Court:—

¶82

‘If a person not having authority to execute a deed, or having such authority under certain circumstances which did not exist, executes a deed, it is not necessary for persons who are not bound by it to sue to set it aside, for it cannot be used against them. They may treat it as non-existent and sue for their right as if it did not exist.’...”

¶83

The judgment of this Court in Ammaniammal v.

¶84

M.Palanisamy and 14 others [2008(4) CTC 392], after

¶85

considering catena judgments dealing with the alienation of minors property by defacto guardian without leave of the Court, has held that:

¶86

¶87

“16.....A perusal of the cited decision would amply make the point clear that this Court in the said judgment discussed all the relevant earlier precedents in extenso and arrived at the conclusion that execution of a transfer deed alienating the property of the minor by a person other than the natural guardian would be void. No doubt, in the cited case of this Court, the father was alive and he also attested the document of alienation executed by the mother of the minor on behalf of the minor, nonetheless, this Court held that inasmuch as the person other than the natural guardian cannot represent the minor in alienating minor's share of property. It is therefore, clear that the ratio decidendi of the decision of this Court cited supra is that any document of alienation by a person other than the natural guardian on behalf of the minor would be void and not voidable”(emphasis applied)

¶88

So, in the light of the above judgments, it is undoubtedly

¶89

clear that Ex.B2-sale deed executed by Rasayammal for herself and on behalf of the minor Chenniappan in favour of the first defendant and his brother Marappan will not bind Chenniappan as he was a minor then and his sale deed Ex.A3, dated 31.10.1953 in favour of the plaintiff is perfectly valid. The plaintiff gets right of 7.03 acres of land, out of 14.06 acres of land covered under the said document, because by his conduct the minor has repudiated the earlier transaction of Rasayammal done on his behalf without leave of the Court.

¶90

¶91

At the most, through Ex.B2 Nachiappa gounder and his brother Marappa gounder will be entitled for the share of Rasayammal, which extended to 7.03 acres. For that reason, the subsequent sale deed executed by the legal heirs of Rasayammal on 25.10.1965 through Ex.A4 in favour of the plaintiff and his two brothers (Nachiappa gounder and Marappa gounder) gets vitiated and invalid.

¶92

The legal heirs of Rasayammal can have no right to alienate, while Rasayammal herself has alienated her share in the property in favour of Nachiappa gounder and Marappa gounder as early as 10.06.1953 vide Ex.B2. The alienation of Chenniappan share alone gets vitiated for want of Court permission and the alienation of Rasayammal share will hold good. Thus, the subsequent alienation by the legal heirs of Rasayammal is invalid. As a result, Chenniappan will be entitled for ½ share (i.e.) 7.03 acres in the 'B' schedule property, as per Ex.A3, dated 31.10.1953 executed by Chenniappan. The first defendant and defendants 5 to 8, who are the legal heirs of other brother Marappa gounder are entitled for remaining ½ share (7.03 acres) in the 'B' schedule property, by virtue of Ex.B2 executed by Rasayammal.

¶93

¶94

In respect of items 1 and 3 it is an admitted fact that both

¶95

the properties were purchased by Marappa gounder and he died intestate. While the defendants plead that there was an oral partition, the same is denied by the plaintiff stating that the properties were not divided formally but separately enjoyed by the respective parties for the sake of convenience. On this point, this Court finds that the lower appellate Court has reversed the finding of the trial Court based on the revenue records relied by the respondents. When the plaintiff sought for marking certain additional documents, in the appeal vide I.A.210 of 2007, the lower appellate Court has refused permission to adduce additional document on the ground that no valid reason given to accept the document belatedly in the appeal. The additional document which sought to be marked are kist receipts in favour of the plaintiff. By refusal to admit the additional document, the lower appellate court has deprived itself the opportunity of deciding the appeal fairly.

¶96

De-hors of rejecting the application to receive the additional document, it is admitted by the parties that items 1 and 3 are the properties of Marappa gounder. It is for the person, who assert

¶97

¶98

oral partition to prove it. While the first defendant himself has pleaded through his additional written statement that the suit is bad for partial partition and provided details about the third item of the suit property, and the same has been included in the suit by virtue of the amendment, the defendant cannot turn around and say that the partition has already been effected. The lower appellate Court failed to consider the admission of the first defendant, which is the best form of evidence regarding, the fact of oral partition. If really there was any partition earlier, the defendants will not have taken a plea of partial partition and allowed to include the third item of the property, which the plaintiff himself has failed to include at the first instance.

¶99

Any plea of oral partition should be supported,

¶100

corroborated and fortified through the conduct of the parties. In this case, none of the above three factors have been established through evidence. Therefore, the judgment and decree of the lower appellate Court reversing the finding of the trial court is bad and liable to be set aside.

¶101

The share of the plaintiff in 'B' schedule property is restricted to ½ share because the sale deed executed by Rasayammal

¶102

¶103

for herself and on behalf of the minor Chenniappan through Ex.B2 in favour of Nachiappa gounder and his brother Mariappan is void only to the extent of the share of Chenniappan. For the rest of the ½ share, the sale is valid. Since Rasayammal has already alienated the property on 10.06.1953 vide Ex.B2, her legal heirs have no right to sell the same property after 12 years i.e. on 25.10.1965 vide Ex.A4.

¶104

For the above said reason, this Court declares the plaintiff is entitled for 1/3^rd share in items 1 and 3 of the suit property as prayed and restrict to ½ share in respect of 2^nd item of the property, though the plaintiff has sought for 4/6 share in item 2 of the suit schedule property.

¶105

25. In the result, the second appeal is partly allowed and

¶106

the judgment and decree of the first appellate court is set aside. The decree of the trial Court is modified as stated above. No order as to costs.

¶107

14.02.2017

¶108

Index:Yes/No Internet:Yes/No ari To

¶109

¶110

The Principal District Judge, Erode. First Additional Subordinate Judge, Erode.

¶111