Holders of a Power of Attorney challenged a trial court decree dismissing their suit to partition ancestral property and void a sale deed. The High Court upheld the dismissal, finding the sale valid and no grounds for reversal.
The first appeal stands dismissed. No order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated:09.09.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.303 of 2015 & M.P. No.1 of 2015
V.Udhayakumar ...Appellant/Plaintiff
Vs.
...Respondents/Defendants
PRAYER: This Appeal Suit is filed under Section 96 C.P.C. against the Judgment and Decree dated of the learned Principal District Judge of Krishnagiri, dated 02.03.2015 in O.S.No.18 of 2014.
For Appellant : Mr.J.Hariharan for M/s.V.Nicholas
For Respondents : No appearance for R1 & R2 Mr.S.Sathish for R4 Not ready in notice regarding R3
J U D G M E N T
This appeal is filed challenging the judgment and decree in O.S.No.18 of 2014 of the learned Principal District Judge, Krishnagiri. The plaintiff is the appellant before this Court and the parties, for the ease of understanding, are referred to in the same litigative status as before the trial Court.
Plaintiff's case:
by third defendant in favour of the fourth defendant as null and void and for permanent injunction restraining the fourth defendant from trespassing into the suit properties till the partition is effected and also to restrain him from alienating or encumbering the suit properties.
(a) The plaintiff would submit that he is the son of the first defendant and the brother of the second defendant. The suit properties originally belonged to his grand father Kalappan as his ancestral properties. A registered partition deed dated 27.12.2002 was entered into between the said Kalappan and his sons, viz., K.Bairappan, K.Rajan and the first defendant in the suit. The suit properties, under this partition deed, fell to the share of the first defendant.
(b) After the partition, the plaintiff and defendants 1 and 2 were in joint possession and enjoyment of the properties and the properties and the properties had not been partitioned amongst them. Each of them are entitled to a 1/3rd share in the suit schedule properties. The plaintiff would contend that his father, the first defendant was leading a flashy life style and was not taking care of the welfare of the family. The plaintiff being a student was unable to control his father. Defendants 1 and 2 had executed a power of attorney dated 25.07.2012 in favour of the third defendant in respect of the suit properties. On the very same day, the third defendant had entered into an agreement of sale with the fourth defendant. The plaintiff would question these transactions by contending that if defendants 1 and 2 had intended to sell the suit properties to the fourth defendant, they could themselves have executed the agreement of sale, instead of, executing a power of attorney. The power of attorney as well as the agreement of sale would mention that the plaintiff was entitled to a share in the properties. At the time of these documents coming into existence, the plaintiff was a minor.
© The plaintiff would submit that defendants 1 to 4 had joined together and created a sale deed dated 27.05.2013 in favour of the fourth defendant in respect of the suit properties based on the power of attorney and the agreement of sale. The plaintiff would further submit that the properties were of high value nearly three times more than the value quoted in the sale deed dated 27.05.2013. Taking advantage of the sale deed, the fourth defendant was attempting to trespass into the suit property which the plaintiff and his mother had successfully prevented. In view of these circumstances, the plaintiff would submit that it is no longer possible to remain in joint possession with the other sharers and therefore, the present suit for partition and other allied reliefs.
Case of the 3rd and 4th defendants:
plaintiff has virtually asked for setting aside the sale deed but had, however, couched the prayer / relief as one for declaring the sale deed dated 25.07.2012 as null and void thereby, trying to make the suit one for declaration. He would therefore seek to have the suit dismissed.
Written statement of defendants 1 and 2:
(a) The 1st defendant had filed a written statement adopted by the second defendant more or less adopting the contents of the plaint. The first defendant would submit that the agreement of sale and power of attorney have been offered only as a security for a loan borrowed by the first defendant. The power of attorney had been taken by the third defendant as a security for money borrowed from the third defendant. He would, in turn, contend that defendants 3 and 4 have colluded together to create the documents of sale. They ultimately prayed that the suit be decreed.
Trial Court: 4. The Principal District Court, Krishnagiri, had framed the following issues:
“1/ thjp nfhhpa[s;sgo jhth brhj;jpy; 3y; 1 g';F fpilf;fj;jf;fjh>
2/ 25/07/2012 njjpapl;l 3k; gpujpthjpahy; Vw;gLj;jg;gl;l fpuag;gj;jpuk; ,y;yhjJ. bry;yhjJ vd;W tpsk;g[if bra;aj;jf;fjh>
3/ thjp nfhhpago epue;ju cWj;Jf;ffl;lisg; gj;jpuk; bgwj;jf;ftuh>
6/ jhththdJ gFjp ghf njhcoj;jhy; ghjpf;fg;gl;Ls;sjh> 7/ ntW vd;d ghpfhuk;>”
(2) whether the suit is hit by partial partition, since the property comprised in S.No.82/2B measuring an extent of 96 cents and which is the subject matter of the suit in O.S.No.32 of 2006 has been included in the suit properties though that property is also the ancestral property of the first defendant.
Submissions:
and that the property had been partitioned under a deed dated 12.07.2012 and the first defendant as 'kartha' of his joint family consisting of the plaintiff and the second defendant herein had sold the property for legal necessity and for family expenses. Further, when the third defendant had executed the agreement of sale, the first defendant had failed to inform the fourth defendant about the pendency of the suit for specific performance in respect of 96 cents in S.No.82/2B. The fourth defendant came to know about the same only when he received summons in the above suit. The first defendant has attested this agreement of sale as a witness and therefore, it is crystal clear that the general power of attorney has been prepared only at the behest of the first defendant. That apart, it is to be taken note that the plaintiff has not included the property comprised in S.No.82/2B which is the subject matter of the suit in O.S.No.32 of 2006. Further, the suit for partition would clearly demonstrate the collusion between the party defendants. The suit for specific performance has been decreed and there is no challenge to this decree by the plaintiff. This itself clearly shows the collusion between the plaintiff and defendants 1 and 2. Considering the above conduct of the plaintiff, the Court below has rightly dismissed the suit and I find no grounds to set aside the judgment and decree of the learned Principal District Judge, Krishnagiri.
Assistant Registrar(CS-V)
//True Copy//
Sub-Assistant Registrar
kal
To
A.S.No.303 of 2015 &
M.P. No.1 of 2015
PA(CO)
SP(10/12/2021)
2 issues framed by the court
Whether the sale in favour of the fourth defendant by the third defendant as power agent of the first defendant is valid and binding.
Whether the suit is hit by partial partition since property in S.No.82/2B was included in suit properties though it is ancestral property of the first defendant.
Colour shows how this judgement treated each authority
Mariammal and Another v. Subbuthai and OthersReferred¶45
Mariammal and Another v. Subbuthai and Others reported in CDJ 013 MHC 3214
1 provisions across 1 enactments
V.Udhayakumar
K.Venkatachalapathy
V.Gopinath
R.Veeramani
S.Kathiravan
P.T. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
