Dismissed

Velayudham v. Arunachalam(Died)

Madras HC1 Feb 2023SA/1273/2006

Case brief

AI extract

What is this about?

This second appeal against a decree declaring plaintiffs' title to property was dismissed. The court held that an ex-parte decree from a prior suit did not operate as res judicata and confirmed the lower courts' judgment declaring the plaintiff's title.

What did the court decide?

Second Appeal dismissed; judgment and decree of courts below confirming plaintiff's title to properties are upheld.

Velayudham Vs Arunachalam(Died) — Succession and Inheritance | Madras HC (2023)

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S.A.No.1273 of 2006

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 01.02.2023

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CORAM

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THE HONOURABLE Ms. JUSTICE P.T. ASHA

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S.A.No.1273 of 2006 and

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M.P.No.1 of 2006

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1.Velayudham

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2.Senthilmurugan … Appellants/Defendants

1.Arunachalam (Died)

2.Shanmugham

3.Jayavel@Thangamani

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4.Gengammal ... Respondents 1 to 4 / Plaintiffs 1 to 4 in Trial Court

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5.Vairamuthu

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6.Minor Govindan ... Legal Representatives of the deceased 1^st respondent

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[(Minor represented by mother and natural Guardian Gengammal) Respondents 5 and 6 brought on record as LRs of the deceased R1 vide order of Court dated 25.4.13

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https://www.mhc.tn.gov.in/judis

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S.A.No.1273 of 2006

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made in M.P.No.1/07 in S.A.No.1273/06]

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Prayer: Second Appeal is filed under Section 100 of C.P.C against the Judgement and Decree of the learned Additional Sub-Judge, Tindivanam in A.S.No.167/2004 dated 15.3.2006 confirming the judgment and decree of the learned District Munsif of Vanur in O.S.No.72/1997 dated 30.11.2004.

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For Appellant : Ms.Prithivi

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Kumaran

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For Respondents : Mr.P.Dinesh Kumar [R2 to R5] R6 – Minor – Represented by

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R1 – Died - (steps taken) JUDGMENT

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The defendants in the suit O.S.No.72 of 1997 on the file of the

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District Munsif Court, Vanur are the appellants before this Court, challenging the concurrent judgment and decree against them.

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The brief facts required for disposing of the second appeal is

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herein below set out and the parties are referred to in the same ranking

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S.A.No.1273 of 2006

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as before the trial Court.

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The suit in question has been filed for a declaration of the 1^st

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plaintiff's half share in the suit A-schedule property and consequently for an injunction and for declaring that the B schedule properties are the properties of the plaintiffs 2 and 3 and C schedule properties are the properties of the 1^st plaintiff and for a consequential injunction or in the alternative for recovery of possession and mesne profits.

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The 1^st plaintiff and the 1^st defendant are brothers and the plaintiffs 2, 3 and 4 are the sons and the wife of the 1^st plaintiff. The 2^nd defendant is the son of the 1^st defendant. The suit property belonged to one Amirthammal, mother of the 1^st plaintiff and the 1^st defendant. In a registered settlement deed, Ex.A1, dated 04.12.1968, Amirthammal settled A-schedule property to the 1^st plaintiff and the 1^st defendant with a condition that they shall not create any encumbrance with reference to the property till their life time. Amirthammal's husband

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S.A.No.1273 of 2006

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died in 1960 and Amirthammal died in the month of October 1980. Even during life time of Amirthammal, the 1^st plaintiff and the 1^st defendant orally partitioned the property. The 1^st defendant enjoyed 13 cents in item No.2 of A-schedule property. This property was sold by the 1^st defendant to the plaintiffs 2 and 3 under a sale deed dated 26.07.1978. This property has been described as B-schedule in the suit schedule property. Thereafter, under the registered sale deed, dated 03.08.1982, the 1^st defendant sold the property which is described in C- schedule property to the 1^st plaintiff.

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The 1^st defendant had filed O.S.No.1313 of 1981 on the file of the District Munsif, Dindivanam against the 1^st plaintiff for declaration of her title to the A and C schedule of properties. In the said suit, the 1^st defendant took out a plea that the document dated 04.12.1968 that was executed by Amirthammal though styled as a settlement deed was actually a Will, which Will was cancelled vide a cancellation deed

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S.A.No.1273 of 2006

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dated 14.10.1980. Thereafter Amirthammal had executed a settlement deed dated 15.10.1980 in favour of the 1^st defendant settling

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items 1 to 3 of A schedule in favour of the 1^st defendant.

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The C-schedule property was also settled by Amirthammal in favour of the 1^st defendant under a settlement deed dated 12.08.1980.

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The plaintiff would submit that the 1^st defendant had obtained an exparte decree in O.S.No.1313 of 1981 on 30.08.1982 and the application filed by the 1^st plaintiff to set aside the exparte decree was dismissed for default and Civil Revision Petition which was filed challenging the said order was also dismissed. It is the case of the plaintiff that Amirthammal had no right to cancel the settlement deed which is already executed by her, which is an irrevocable one. Further, the plaintiffs 2 and 3 are not parties to the suit O.S.No.1313 of 1981 and the 1^st defendant had not disclosed the execution of the sale deed by him in favour of the 1^st plaintiff. Therefore, the decree obtained is a

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S.A.No.1273 of 2006

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fraudulent one and null and void. Therefore the plaintiffs were constrained to file the above suit.

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The 1^st defendant had filed written statement inter - alia contending that the suit is barred by res-judicata. The 4^th item in A- schedule property has been sold even during the life time of Amirthammal and the 1^st plaintiff had no title or possession over the same. As regards item Nos.1 to 3 of the A and C schedule property, the 1^st defendant would submit that he has obtained a decree against the 1^st plaintiff in the suit O.S.No.1313 of 1981 and the 1^st defendant had obtained possession through Court by filing execution proceedings. The 1^st defendant would submit that from the date of settlement he is in possession of the property and paying tax in respect of the same. The 1^st plaintiff was never in possession of any part of the suit property and further it was the 1^st defendant who was taking care of his mother and out of her love and affection she has settled C schedule property to the

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1^st defendant under a deed dated 12.08.1980 and items 1 to 3 of A-

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schedule property under a settlement deed dated 15.10.1980. Amirthammal died in the year 1981 and since the plaintiffs were disturbing his possession, the 1^st defendant had filed O.S.No.1313 of 1981 and the said suit was decreed in his favour. The 1^st defendant denied the execution of the sale deed in favour of the plaintiffs 2 and 3 and the 1^st plaintiff and submitted that he is in continuous possession of the suit property for over 13 years.

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The trial Court on going through the pleadings had framed the following issues:

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jhth Kd; jPh;g;g[ jil njhc&j;jhy; ghjpf;fg;gl;Ls;sjh?

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4/12/1968 njjpapl;l brl;oy;bkz;l; gj;jpuk; cz;ikahdjh? bry;yj;jf;fjh? kw;Wk; mKYf;Fk; mDc;&lhdj;jpw;Fk; te;J tpl;ljh?

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26/07/78 njjpapl;l 2. 3 thjpfspd; nghpyhd fpiua Mtzk; rhpahdjh? bry;yj;jf;fjh?

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Kjy; gpujpthjp. Kjy; thjpf;F 3/8/82y; vGjpf;

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S.A.No.1273 of 2006

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bfhLj;jjhf Twg;gLk; fpiuag;gj;jpk; rhpahdjh? bry;yj;jf;fjh?

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4/12/68 njjpapy; ehd; vGjpa brl;oy;bkz;l; gj;jpuj;ij mkph;jk;khs; uj;J bra;J. 14/10/1980y; brl;oy;bkz;l; uj;J gj;jpuk; vGjpajhf Twg;gLk; Kjy; gpujpthjp jug;g[ Tw;W rhpahdjh?

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15/10/80y; mkph;jk;khs;. Kjy; gpujpthjpf;F tHf;F 'v'

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ml;ltizr; brhj;Jf;fspy; Kjy; 3 ,dr; brhj;Jf;fs; Fwpj;J brl;oy;bkz;l; gj;jpuk; vGjp itj;jjhf TWk; Kjy; gpujpthjp jug;g[ Tw;W rhpahdjh?

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tHf;Fiuapy; nfhhpathW 'v' ml;ltizr; brhj;J Fwpj;J tpsk;g[if ghpfhuk; Kjy; thjpf;F fpilf;fj;jf;fjh?

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tHf;Fiuapy; nfhhpathW 'gp' ml;ltizr; brhj;J Fwpj;J tpsk;g[if ghpfhuk; 2.3 thjpfSf;F fpilf;f jf;fjh?

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tHf;Fiuapy; nfhhpa[s;sthW nghy; jhth 'rp' ml;ltizr;

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brhj;J Fwpj;j tpsk;g[if ghpfhuk; Kjy; thjpf;F fpilf;fj;jf;fjh?

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tHf;Fiuapy; nfhhpa[s;sJ nghy; tHf;F brhj;Jf;fs; Fwpj;j xg;g[jy; ghpfhuk; thjpfSf;F fpilf;fj;jf;fjh?

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jhth njjpf;F gpe;ija kfNy; ec;&;lk; Fwpj;j ghpfhuk; thjpfSf;F fpilf;fjf;fjh?

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thjpfSf;F fpilf;f ntz;oa ,ju ghpfhu';fs; vd;d?

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S.A.No.1273 of 2006

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The 1^st plaintiff examined himself as PW1 and the 2^nd plaintiff as PW2 and one Ranganathan and Kothandaraman were examined as PW3 and PW4 and Exs.A1 to A9 were marked. On the side of the defendants, the 1^st defendant was examined as DW1 and one Thinkku Vijayan and Chandra were examined as DWs 2 and 3 and Exs.B1 to B25 were marked on their side.

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The learned District Munsif on considering the evidence before him, decreed the suit in respect of all the suit properties except item No.4. The learned Judge, took note of the fact that the 1^st defendant had accepted his signature in Ex.A2-Sale Deed which is the deed under which the 1^st defendant had sold the B-schedule property to the plaintiffs 2 and 3. That apart, the plaintiffs had proved the execution of Ex.A3 sale deed by the 1^st defendant in favour of the 1^st plaintiff by examining PW3 and that apart, the 1^st defendant as DW1

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had accepted his signature in the said deed. However, taking into consideration the sale of item No.4 in the A-Schedule property, the suit was decreed in respect of the suit A-schedule property except for item No.4 and the B and C schedule properties. However, the suit was dismissed with reference to the decree for injunction.

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The defendants had alone challenged the above judgment and

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decree of the trial Court in Appeal Suit No.167 of 2004 on the file of the Additional Subordinate Judge, Dindivanam. The learned Subordinate Judge, by judgment and decree dated 15.03.2006 was pleased to confirm the judgment and decree of the trial Court by dismissing the appeal. Challenging the same, the defendants are before this Court.

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The second appeal was admitted on the following substantial

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questions of law:

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S.A.No.1273 of 2006

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''Are the courts below justified in holding that an

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ex-parte decree passed in O.S.No.1313/81 between the parties do not operate as res-judicata?''

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Heard the learned counsel on either side and perused the materials on record.

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It is the admitted case of both parties that the property belongs to Amirthammal and that Arunachalam and Velayudham are her two children. It is also the admitted case that the said Amirthammal had executed a registered settlement deed Ex.A1 on 04.12.1968 bequeathing A-schedule property equally on the 1^st plaintiff and the 1^st defendant. Pursuant to this settlement, the 1^st plaintiff and the 1^st defendant had orally partitioned the property and were in possession and enjoyment of the same. The 1^st defendant has sold his share in the A-schedule property in favour of the plaintiffs 2 and 3 under Ex.A2-

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registered sale deed dated 26.07.1978. It is this property that is described as B-schedule property. Likewise, on 03.08.1982, the 1^st defendant had sold the C-schedule property to the 1^st plaintiff under Ex.A3. Ex.A3 has come into existence after the alleged cancellation of the settlement deed by Amirthammal under Ex.B16 dated 14.10.1980 and the execution of settlement deed Ex.B18 by her in favour of the 1^st defendant. That apart, Ex.A3 has also been executed after the filing of the suit in O.S.No.1313 of 1981 on the file of the District Munsif, Dindivanam by the 1^st defendant for a declaration of his title over the A and C schedule property in the suit. Under Ex.A3, the 1^st defendant had sold the suit C-schedule property to the 1^st plaintiff. Therefore, it is crystal clear that the 1^st defendant has accepted the settlement deed and acted upon the same.

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Therefore, the judgment and decree of the Courts below declaring the title of the plaintiff to the properties in A-schedule except

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S.A.No.1273 of 2006

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for the 4

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for the 4^th item and the declaration with reference to B and C schedule properties is correct and does not require any reconsideration. Further, O.S.No.1313 of 1981 is an exparte order and that apart, even during the pendency of that suit, the 1^st defendant has executed the sale deed in respect of suit C-schedule property in favour of the 1^st plaintiff. Therefore, the substantial question of law that has been framed is answered against the defendants.

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In the result, this Second Appeal is dismissed and the Judgement and Decree of the learned Additional Sub-Judge, Tindivanam in A.S.No.167/2004 dated 15.3.2006 confirming the judgment and decree of the learned District Munsif of Vanur in O.S.No.72/1997 dated 30.11.2004 are confirmed. No costs. Consequently, connected civil miscellaneous petition is closed.

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Index: Yes/No Speaking order/non-speaking order ssn

S.A.No.1273 of 2006

01.02.2023

P.T.ASHA, J.,

ssn

The Additional Sub-Judge, Tindivanam.

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The District Munsif, Vanur.

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The Section Officer, V.R.Section, High Court, Madras.

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S.A.No.1273 of 2006 and M.P.No.1 of 2006

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S.A.No.1273 of 2006

01.02.2023

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Velayudham v. Arunachalam(Died)

Case brief

What is this about?

What did the court decide?

Velayudham v. Arunachalam(Died)

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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