Madras High Court
Senthilkumar vs Manikandan on 29 July, 2026
Author: Mohammed Shaffiq
Bench: Mohammed Shaffiq
2026:MHC:3191
A.S(MD)No.128 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.04.2026
Pronounced on : 29.07.2026
CORAM
THE HONOURABLE MR.JUSTICE P.VADAMALAI
A.S(MD)No.128 of 2020
and
C.M.P(MD)Nos.4567 of 2020 and 6804 of 2021
Senthilkumar,
S/o.A.Kandasamy,
No.255/9, AKS Complex,
Market Bye Pass Road,
Ottanchathiram Town,
Ottanchathiram Taluk,
Dindigul District. ... Appellant/9th Defendant
Vs.
1.Manikandan,
S/o.Krishnan,
No.494/1-B, Thootathu Salai,
Thumichampatti,
Ottanchathirm Taluk,
Dindigul District. ...1st Respondent/Plaintiff
2.Krishnan,
S/o.Late.Ramasamy Gounder,
Thootathu Salai,
Thumichampatti,
Ottanchathirm Taluk,
Dindigul District.
3.Malaiappa Gounder,
S/o.Vellaiappa Gounder,
Pudur, Thumichampatti,
Ottanchathiram Taluk,
Dindigul District.
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A.S(MD)No.128 of 2020
4.Selvaraj,
S/o.Selvakumar Gounder,
Venkatapuram,
Odaipatti Village,
Ottanchathiram Taluk,
Dindigul District.
5.Sekaran,
S/o.Murugan,
D.No.22C-1-6,
Dharapuram Road,
Ottanchathiram Town,
Ottanchathiram Taluk,
Dindiugl District.
6.Manikandan,
S/o.Murugan,
Pudur, Thumichampatti,
Ottanchathiram Taluk,
Dindiugl District.
7.P.Manian,
S/o.Perumalsamy,
Perumalnaikkanvalasu,
Thevathoor Village,
Ottanchathiram Taluk,
Dindiugl District.
8.R.Karuppusamy,
S/o.Ramasamy Gounder,
West Poothampatti,
Poothampatti Post,
Vedasandur Taluk,
Dindigul District.
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A.S(MD)No.128 of 2020
9.T.Rengammal,
W/o. Late. Thangavel,
D.No.274B/1-5,
Viswanatha Nagar,
Ottanchathiram,
Ottanchathiram Taluk,
Dindiugl District.
10.R.Saravanakannan,
S/o.Ramasamy Gounder,
No. 21E/4, Nagappapilai Therku Thottam,
Athikombai,
Ottanchathiram Taluk,
Dindiugl District.
11.P.Radhakrishnan,
S/o.Palanisamy Gounder,
Ayakattu Thottam,
Akkaraipatti, Odaipatti,
Ottanchathiram Taluk,
Dindiugl District.
12.E.Pommuraj,
S/o. Errama Naicker,
No.1/215/1-97A,
Ondivadanaickenpatti,
Palakkanuthu Village,
Dindigul Taluk,
Dindigul District.
13.Selvi,
W/o.Senthil Kumar,
No.255/9, AKS Complex,
Market Bye Pass Road,
Ottanchathiram Town,
Ottanchathiram Taluk,
Dindiugl District.
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A.S(MD)No.128 of 2020
14.M.Selvam,
S/o.Muthusamy Gounder,
No.601, Chandrarsekar Maligai Kadai,
Naganampatti,
Ottanchathiram Taluk,
Dindiugl District.
15.Jeyapaul,
S/o. Late. Peria Ramasamy,
Samiyarpudur, Virupatchi,
Ottanchathiram Taluk,
Dindiugl District.
16.S.Prabhu,
S/o.Sivasamy,
Samiyarpudur,Virupatchi,
Ottanchathiram Taluk,
Dindiugl District. ...Respondents 2 to 16/
Defendants 1 to 8, 10 to 16
PRAYER:- This Appeal Suit is filed under Section 96 of the Civil Procedure
Code, to set aside the judgment and decree, dated 06.03.2020 made in
O.S. No.55 of 2011 on the file of the Additional District Court (FTC), Palani.
For Appellant : Mr.N.Dilip Kumar
for Mr.S.R.Suresh Kumar
For R1 : Mr.J.Barathan
for Mr.J.Lawrance
For R4 : Mr.E.Murugavel
For R5, R6, R8,
R9, R12 & R13 : Mr.A.Mohan
R2, R3, R7, R10,
R11, R14 to R16 : Given up vide Court Order,
dated 20.03.2025
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A.S(MD)No.128 of 2020
JUDGMENT
This Appeal Suit is directed against the judgment and decree, dated
06.03.2020 passed in O.S.No.55 of 2011 on the file of the Additional District
Court (Fast Track Court), Palani.
2.The appellant is the 9th defendant in O.S.No.55 of 2011 on the file of
the Additional District Court (Fast Track Court), Palani. The 1st respondent is
the plaintiff and the respondents 2 to 16 are the defendants 1 to 8 and 10 to 16
in that suit. The 1st respondent/plaintiff filed the suit for partition seeking
1/2 share in the suit properties and for declaration that the sale deeds, dated
24.03.1997, 31.03.1997 and 13.02.2009 are null and void as they were
executed without the knowledge of the plaintiff and for injunction.
3.For the sake of convenience, the parties are referred to as per their rank
before the trial Court.
4.The brief facts are as below:
(a) The case of the Plaintiff (1st Respondent herein):-
The suit property and other properties belonged to the joint family
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A.S(MD)No.128 of 2020consisting of the 1st defendant and his siblings. In the partition took place
among them on 27.04.1984, the suit properties and other properties were
allotted to the branch of the 1st defendant. Thereafter, in a partition held on
17.04.1998, some properties were allotted to the plaintiff’s sister Lakshmi
Prabha. The rest of the properties were jointly enjoyed by the family of the
plaintiff and the 1st defendant. Wantonly, the 2nd item was not shown in the
partition dated 17.04.1998. There was sufficient income from the suit
properties, so there was no need to borrow a loan. But the 1st defendant had
not taken care of the family and spent money lavishly on gambling.
The 1st defendant sold the properties to the other defendants by way of sale
deeds and power of attorney deed. The said deeds do not bind the plaintiff.
One Govindaraj filed a suit in O.S.No.12 of 2009 for specific performance and
after the plaintiff became a major, a compromise took place and the said
Govindaraj gave money towards the share of the plaintiff and so the suit was
agreed to be decreed. When the plaintiff demanded partition from the rest of
the properties, the 1st defendant did not give a proper reply and the plaintiff
came to know that the 1st defendant sold the properties through a power deed
dated 20.08.2003 and the sale deeds dated 24.03.1997, 31.03.1997, 21.11.2002
and 22.12.2009 for his gambling expenses. Hence, the plaintiff filed the suit.
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During pendency of the suit, since the defendants 9 and 10, as power agents,
alienated some portion of the properties to the defendants 11 to 16, they were
added as parties. The power deed and the sale deeds will not bind the plaintiff.
(b) The case of the 1st defendant:-
The contents of the partition deeds, dated 24.07.1984 and 17.09.1998,
are admitted. As there was doubt prevailing about 15 years back, the
1st defendant was constrained to borrow loans for family expenses and other
necessities. In the Oddanchatram area, there was a practice to execute a sale
deed or power deed to obtain a loan. So, the 1st defendant executed a sale deed
in respect of his land in S.No.633/1 and 633/2 to one Palanachamy Gouder on
getting Rs.1,00,000/-. He also obtained Rs.7,00,000/- from one Maniyan
through Govindaraj, for which he executed a sale deed dated 21.11.2002 in
respect of the 2nd item of the suit property. Except this, this defendant has not
alienated any property including the 2nd item. The 1st defendant executed a
sale deed in favour of defendants 2 to 5 on 24.03.1997 in respect of the
1st item since they gave financial assistance to clear sundry debts. They sold
the said property by way of plots and gave Rs.1 crore and 20 lakhs to this
defendant. Taking advantage of the misunderstanding between the
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A.S(MD)No.128 of 20201st defendant and his wife, his wife, along with Govindaraj, the 6th defendant
and the plaintiff, filed suits. As already stated, the sale deed dated 21.11.2002
was executed in favour of the 6th defendant only for loan purposes and the
same is not legally valid. The 6th defendant executed sale deeds dated
16.02.2009, in favour of the defendants 7 and 8 in respect of the 2nd item.
In turn, the defendants 7 and 8 executed a power deed in favour of the
defendants 9 and 10. The defendants 9 and 10 forged sale deeds in the name of
defendants 11 to 16. The 6th defendant filed a suit in O.S.No.27 of 2010
(O.S.No.91 of 2006) for declaration of his title over the property, hence, the
subsequent alienation by him in favour of the defendants 7 and 8 is not valid
U/s.52 of the Transfer of Property Act. In the year 1997, the plaintiff was aged
only 6 years and he did not know directly about the loan transaction as there
was a necessity to get a loan for the benefit of the family. The contra averment
made by the plaintiff is not accepted. The plaintiff’s mother received
Rs.1 crore and 50 lakhs from the sale consideration of the 1st item.
The plaintiff and his mother invested the same and also purchased a
three-storeyed building. The plaintiff has not added that property in this case.
So, the suit is liable to be dismissed.
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(c) The case of the 3rd defendant:-
The partition dated 17.04.1998 will bind the plaintiff and the
1st defendant. In fact, the 1st defendant derived more than 12 acres in the
partition and this defendant has only 2 acres. The rest of the properties are in
the hands of the 1st defendant. The alleged lavish expenditure of the
1st defendant is denied. The plaintiff wantonly stated so. When the plaintiff
himself admitted that on getting money, he compromised with Govindaraj in
O.S.No.12 of 2009 for specific performance, with the intention to grab money,
the plaintiff has filed this suit. All the alleged sale deeds were properly
executed for a valuable sale consideration. So, the suit may be dismissed.
(d) The case of the 6st defendant:-
All the family properties got by the plaintiff, the 1st defendant, and the
plaintiff’s sister, Lakshmi Praba, were not specifically mentioned in the suit.
So, without showing all the properties as per the partition deed dated
27.04.1984, the present suit filed by the plaintiff is not sustainable.
The partition deed, dated 17.04.1998, was created without partitioning the
properties, so the same is not legally valid. To clear sundry family debts, the
1st defendant offered to sell the suit property for Rs.7,00,000/- to this
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defendant and entered into a sale agreement on 21.10.2002. Then, the
1st defendant sold the suit property to this defendant by executing a sale deed,
dated 21.11.2002, in favour of this defendant by receiving a sale consideration
of Rs.7,00,000/-. Thereafter, this defendant sold the suit property to the
defendants 7 and 8 by way of a registered sale deed, dated 13.02.2009.
The defendants 7 and 8 executed a general power of attorney deed dated
10.08.2011 in favour of the defendants 9 and 10, who filed a suit in
O.S.No.305 of 2011 for an injunction before the Sub Court, Palani and the suit
is pending. The plaintiff has no cause of action for the suit. Hence, the suit is
liable to be dismissed.
(e) The case of the 9th defendant:-
The suit items 1 and 2 originally belonged to the family of the
1st defendant and the same were allotted to the 1st defendant in the partition
that took place on 27.04.1984. The 1st defendant was allotted a total land
measuring 10 acres 42 cents, but the plaintiff purposely showed only the suit
properties, i.e., 1st item measuring 2 acres and the 2nd item measuring
1 acre 81 cents. The plaintiff has not explained anything about the remaining
extent allotted to his father. The 1st defendant sold the suit 2nd item, i.e.,
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A.S(MD)No.128 of 20201 acre 75 cents in S.No.635/1, leaving 6 cents for path to the 6th defendant on
21.11.2002 on receiving due sale consideration and also handed over
possession of the property on the same day. Thereafter, the 1st defendant and
his son, the plaintiff herein, have no right over the 2nd item. The 6th defendant
sold the 2nd item to the defendants 7 and 8 by way of a registered sale deed
dated 13.02.2009 and a separate patta was also issued in the name of
defendants 7 and 8. As the value of land has increased, the 1st defendant with
the intention to grab more money, disturbed the defendants 7 and 8 from
enjoying the property, so their power agents i.e., the defendants 9 and 10 have
filed a suit in O.S.No.305 of 2011 on the file of the Sub Court, Palani, for an
injunction against the 1st defendant and obtained an interim injunction in
I.A.No.761 of 2011. The 1st defendant has not preferred any appeal against the
interim injunction. The 1st defendant set up one Thenmoli as a lessee and filed
a suit in O.S.No.155 of 2011 against the defendants 1, 6, 7 and 8; in that suit,
the 1st defendant did not appear. The defendants 6, 7 and 8 appeared and filed
a written statement. The 1st defendant has also set up one Chelladurai as a sale
agreement holder and filed a suit in O.S.No.154 of 2011 against the defendants
7 and 8. On the same foot, the 1st defendant through his son has filed the
present suit. The acts of the plaintiff and the 1st defendant against the
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A.S(MD)No.128 of 2020defendants 7 and 8 were only to grab more money. On the basis of the power
deed dated 10.08.2011, the defendants 9 and 10 have laid out the 2nd item into
33 house plots and sold out the house plots to various persons including the
defendants 11 to 14. The plaintiff has not added the other purchasers as
defendants. So the suit is bad for non-joinder of necessary parties.
The plaintiff’s sister Lakshmi Praba was given 2 acres 50 cents in S.No.634/1;
the rest of the land, 6 acres 11 cents in S.No.634/1, was shown as the suit
property seeking partition. The plaintiff has not explained why he left the other
portions. Even the family of the plaintiff and the 1st defendant was given a
total land measuring 11 acres 12 cents, out of which 2 acres 50 cents was given
to the plaintiff’s sister. If so, still 8 acres 62 cents are available for the plaintiff
and the 1st defendant. So, the plaintiff and the 1st defendant would get
1/2 share, i.e., 4 acres 31 cents in suit items 1 and 2. If really, the suit
properties are to be partitioned, the suit properties measuring 3 acres 31 cents
should be allotted to the 1st defendant as per law of equity. Hence, the
challenge regarding the sale deeds executed by the 1st defendant in respect of
the suit property is not legally acceptable. The plaintiff has not filed the suit for
a proper partition, that too leaving out other purchasers and only to grab money
from the defendants. The plaintiff is not in joint possession of the suit property,
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A.S(MD)No.128 of 2020
so the plaintiff has to pay the Court fee U/s.37(1) of the Tamil Nadu Court Fees
and Suit Valuation Act, instead of the fixed Court fee paid U/s.37(2).
Hence, the suit is liable to be dismissed.
5.The trial Court framed the following issues upon the pleadings of both
parties.
(1) Whether the plaintiff is entitled to the relief
of partition and separate possession as prayed for?
(2) Whether the plaintiff is entitled to the relief
that the sale deeds dated 24.03.1997, 31.03.1997,
20.08.2003, 21.11.2002 and 22.12.2009 are null and
void?
(3) Whether the plaintiff is entitled to the relief
of permanent injunction as prayed for?
(4) Whether the partition deed dated 17.4.1998
is binding on the plaintiff and 1st defendant?
(5) Whether the 1st defendant sold the suit
properties for his personal wish and not for legal
necessity expenses of family?
6.During trial, on the plaintiff’s side, P.W.1 and P.W.2 were examined and
Ex.A.1 to Ex.A.6 were marked. On the defendants’ side, the 9th defendant was
examined as D.W.1 and Ex.B.1 was marked.
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7.On appreciation of evidence and on consideration of the arguments
made on behalf of the parties, the trial Court has held that the 1st defendant
sold the properties for his personal expenses, lavishly for playing cards and
hence, the 1st defendant has not sold the properties towards family expenses
under legal necessities, thereby decreeing the suit as prayed for by passing
judgment dated 06.03.2020.
8.Aggrieved by the judgment and decree of the trial Court dated
06.03.2020, the 9th defendant has preferred this appeal.
9.At the time of arguments, the learned counsel for the
1st respondent/plaintiff filed a memo of objections raising the issue of
maintainability of the appeal filed by the 9th defendant.
10. The points for consideration in this appeal are:
1.Whether the appeal is maintainable?
2.Whether the sale deeds executed by the
1st defendant were for his personal expenditure
and not for family necessities?
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3.Whether the suit is bad for non joinder of
necessary parties and also for partial partition?
4.Whether the sale deeds in respect of the
suit properties executed by the 1st defendant can be
declared as null and void?
5.Whether the trial court has not properly
appreciated the evidence of both?
6.Whether the judgment and decree of the
trial court are sustainable?
7.Whether the appeal is to be allowed?.
11. Point No.1
The learned counsel for the 1st respondent/plaintiff has submitted that
originally the suit was filed against the defendants 1 to 8 on 30.05.2011, in the
suit, the defendants 2, 7 and 8 remained exparte. The purchasers of the
property prior to filing of the suit were impleaded as defendants. During the
pendency of the suit, on 10.08.2011, the defendants 7 and 8 executed a power
of attorney in favour of the defendants 9 and 10 and subsequently the
defendants 9 and 10 sold some properties to other defendants. The power of
attorney and the subsequent purchasers were added as defendants 9 to 16.
The defendants 11 to 16 also remained exparte before the trial Court. None of
the original defendants entered the witness box, only the 9th defendant, who is
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A.S(MD)No.128 of 2020
the power agent, deposed as D.W.1. He could depose only with respect to facts
which are within his personal knowledge and relied on the decision reported in
2005 (2) SCC 217 in the case Janki Vashdeo Bhojwani and Another /v/
Indusind Bank Ltd. and Others. Moreover, the appellant, as the
9th defendant, has contested the suit in the capacity of a power agent alone and
not in his personal capacity. The trial Court decreed the suit. When the
principal remained exparte and did not want to file an appeal, his power of
attorney could not prefer an appeal independently, that too without
representing the principal. Therefore, it is imperative for the appellant/9th
defendant to seek leave of this Court before filing an appeal. The appellant has
not filed any petition under Order 3 Rule 2 of CPC. It has not been done so.
Even the appeal lists his principal as a respondent. The appellant has not even
filed any power of attorney; he filed only Ex.B.1 sale agreement. The appellant
is in no way aggrieved by the impugned judgment and decree. This Court has
also answered the question whether the power of attorney can file an appeal in
his individual capacity in its decision reported in CDJ 2022 MHC 9297 in
Senthilkumar /v/ Subramanian and Others case, it is held in paragraph
Nos.21 to 23 as follows:
21.In the light of the above decisions, this
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A.S(MD)No.128 of 2020power or authority to file an appeal in his individual
capacity as against the decree passed in favour of
the plaintiff. It is true that the plaintiff has arrayed
the 5th defendant as a party to the suit, but on a
reading of the plaint, it is seen that the suit has been
filed mainly against the defendants 1 to 4, who are
the original owners of the suit properties and the
plaintiff has made it clear in the plaint that the 5th
defendant has been arrayed as a party only in the
capacity of Power Agent of the defendants 1 to 4.
Therefore, it is clear that the 5th defendant has been
arrayed only as a proper party to the suit.
The prayer sought for in the plaint is for a decree to
receive the balance sale consideration and execute
the sale deed in favour of the plaintiff, either by the
defendants 1 to 4 or by the 5th defendant. Hence, the
suit prayer is also not targeted against the 5th
defendant to manifest him as a necessary party to the
suit. Therefore, arraying of the 5th defendant as a
party to the suit by the plaintiff will not bar the
plaintiff from taking a stand on the locus of the 5th
defendant for the first time in the present appeal.
22.In V.N.Krishna Murthy and another v.
Ravikumar and others [2020 (9) SCC 501], the
Hon-ble Supreme Court has held as follows :
‘21.Applying the above tests, we are of the
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A.S(MD)No.128 of 2020considered opinion that appellants can neither be
said to be aggrieved persons nor bound by the
judgment and decree of the Trial Court in any
manner. The relief claimed in the suit was
cancellation of agreement to sell. On the other
hand, the sale deeds which were the basis of the
claim of the appellants were executed on the
basis of General Power of Attorney, and had
nothing to do with the agreement to sell which
was subject matter of suit. The judgment and
decree of the Trial Court is in no sense a
judgment in rem and it is binding only as between
the plaintiffs and defendants of the suit, and not
upon the appellants.’
23.From the judgment cited supra, it is clear
that a party to the proceedings has a right to appeal
and a person who is not a party to the proceedings
can appeal only if he satisfies the Court that he is
aggrieved by the judgment impugned and obtains
leave of the Court. No doubt, in the present case on
hand, the 5th defendant is a party to the suit,
however, it is pertinent to note that he has not been
arrayed as a defendant in his individual capacity,
but only in the capacity of Power Agent of the
defendants 1 to 4. Therefore, it is imperative on the
5th defendant to seek leave of this Court before
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filing the appeal against the judgment passed in the
suit, but he has failed to do so. Even if tested
whether the 5th defendant can be granted leave,
being a Power Agent of the defendants 1 to 4, the
5th defendant can in no way be aggrieved by the
impugned judgment and decree, insofar as the
defendants 1 to 4 are the only persons who are truly
impacted by the impugned judgment and decree.
When the defendants 1 to 4 have chosen to remain
ex parte in the suit and have also not chosen to file
any appeal even after a decree has been passed
against them by the trial Court, the Power Agent,
who has no power or authority to file any appeal
even by virtue of the Power of Attorney relied upon
by him, nor even aggrieved by the judgment and
decree impugned herein, is not entitled to file any
appeal against the judgment and decree of the trial
Court and therefore, this Court finds that the appeal
filed by the 5th defendant is not maintainable. Point
No.1 is answered accordingly.
The appellant’s side relied on the decision reported in 2001 (3) MLJ 15
in support of his case and the same has no relevance since the question of the
power agent filing the appeal in his individual capacity was not an issue in that
case. Hence, this appeal is not maintainable.
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12.The learned counsel for the appellant/9th defendant has submitted
that the 1st respondent/plaintiff has not added the defendants 9 and 10 as
power of attorneys of their principals and they have been added in their
individual capacity. The provision under Order 41 Rule 4 of CPC, enables any
one of the defendant or plaintiff to prefer an appeal and it is a settled position
that even in the absence of a person against whom a decree has been passed on
a ground common with the appellant, the appeal is maintainable and
appropriate relief can be granted and relied on ruling reported in AIR 1970
Supreme Court 108 in the case of Ratan Lal Shah /v/ Firm Lal-mam Das
Chhadamma Lal and Another. The appellant/9th defendant and the
10th defendant have laid out the property into house plots based on a power of
attorney deed and sold out them to 33 persons. The plaintiff has not
specifically denied the same, but the plaintiff added the subsequent purchasers
as defendants. So, the appellant is an aggrieved person and this appeal is
maintainable.
13.On perusal of the plaint, in short cause title and long cause title, the
plaintiff has not shown the defendants 9 and 10 as power agents of their
principals, namely the defendants 7 and 8, they have shown them in their
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A.S(MD)No.128 of 2020
individual capacity. The appeal is preferred by the 9th defendant in his
individual capacity. It is a settled position that even an exparte defendant can
prefer an appeal. As rightly submitted by the learned counsel for the
appellant/9th defendant, relying on the decision reported in AIR 1970
Supreme Court 108 in the Ratan Lal Shah case, the object of Order 41 Rule
4 of CPC enables one of the parties to the suit to obtain relief in appeal when
the decree appealed from proceeds on a ground common to him and others.
Moreover, the argument of the 1st respondent/plaintiff that the appellant is not
an aggrieved person is not acceptable. Because it is the case of the
appellant/9th defendant that, on the basis of the power deed executed by the
defendants 7 and 8, they have sorted the property into house plots and sold out
them to 33 persons. The plaintiff has not specifically denied the same, but the
plaintiff added the subsequent purchasers as defendants. So, the argument
regarding the aggrieved person has no merit. Therefore, this Court is of the
considered opinion that the appeal is maintainable.
14. Point Nos.2 to 7:
The learned counsel for the appellant/9th defendant has submitted that
there is no dispute that the suit properties with a larger extent in S.Nos.634/1
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A.S(MD)No.128 of 2020and 635/1 were allotted to the 1st defendant under Ex.A.1 – Partition Deed, the
plaintiff is the son of the 1st defendant through the 2nd wife and he was born
on 21.10.1991. The 1st defendant has a daughter, Lakshmi Praba, through his
1st wife and she was given 2 acres 50 cents in S.No.634/1 under Ex.A.2 dated
17.04.1998. Prior to that, the 1st defendant sold 2 acres with a pathway right in
S.No.634/1 to the defendants 2 to 5 through Ex.A3 and Ex.A.4 sale deeds
dated 24.03.1997 and 31.03.1997. The 1st defendant has further sold 1 acre
75 cents along with pathway, including 6 cents in S.No.635/1 by virtue of a
registered sale deed under document No.2168/2002 dated 21.11.2002.
The 6th defendant sold the same to the defendants 7 and 8 through
Ex.A.5 – Sale Deed dated 13.02.2009. The plaintiff has challenged the sale
deeds Ex.A.3, Ex.A.4 and Ex.A.5 as null and void; he has not challenged the
sale deed dated 21.11.2002, which related to the 2nd item. The plaintiff showed
the suit properties consisting of two items viz., 1st item as 2 acres in
S.No.634/1 and 2nd item as 1 acre 81 cents in S.No.635/1. In fact, the
1st defendant was given an extent of 8 acres 61 cents in S.No.634 and 1 acre
81 cents in S.No.635. While the 1st defendant was given a total extent of
10 acres 42 cents and the plaintiff stated Hindu Undivided Family properties as
10 acres 42 cents, the plaintiff has sought partition only with regard to suit
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properties measuring 3 acres 81 cents. In Ex.A.2, the 1st defendant has
specifically mentioned that he independently purchased 70.5 cents and the said
property was not included in this suit. The plaintiff, as P.W.1 in his
cross-examination, admitted that he has not included the said property.
Hence, without adding all properties, the plaintiff cannot seek partial partition.
The defendant has specifically contended in his written statement. So, the suit
is hit by partial partition and the trial Court has also not framed any issue in
this aspect.
15.The learned counsel for the appellant has relied on the ruling of the
Madras High Court rendered in the case of Gandhi /v/ Saminatha Gounder
and Anr., reported in 2006 (1) CTC 267 and held as follows:
“4.Mr.V. Raghavachari, learned counsel for the
appellant placed reliance on the judgment of the
Supreme Court rendered in Kenchegowda (since
deceased) by Legal Representatives v. Sri Slddegowda
@ Motegowda, JT 1994 (4) SC 125 In this case, the
Supreme Court has laid down the law holding that in a
suit for partition when all the joint family properties are
not made subject matter of the suit, such suit is not
maintainable. The legal position in that regard is well
settled, even though the learned counsel for the first23/78
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A.S(MD)No.128 of 2020respondent would contend that even the existence of the
jewel is not known and therefore, the non-inclusion is
not deliberate and in any event, it would not affect the
relief of partition claimed.
5.I do not agree with the said contention.
As stated above, when the plaintiff as a witness has
admitted the existence of such valuable jewel as
belonging to the joint family, it was the duty on his
part to include that as a schedule property. The non-
inclusion thereof is certainly fatal to the relief of
partition. In my view, absolutely no question of law,
nevertheless a substantial question of law, is
involved in the matter and the judgment of the first
Appellate Court in coming to a conclusion as if it is
not proved that the plaintiff has taken a
“Kasu Malai” from the first defendant and therefore,
non-inclusion of “Kasu Malai” in the schedule will
not affect the relief claimed in the suit is not
sustainable. What is important is whether such a
property should be included for partition when once
it has come to the knowledge of the parties that the
said property is available and it is not material as to
whether the same is in possession of the plaintiff or
the defendant….”
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16.The learned counsel for the appellant further submitted that the
plaintiff has admitted the existence of another legal heir, i.e., the daughter of
the 1st defendant, namely Lakshmi Praba. The plaintiff has denied the partition
deed dated 17.04.1998 through which the 1st defendant gave 2 acres 50 cents
to her daughter, who is the sister of the plaintiff. In this suit, the plaintiff has
not impleaded her sister Lakshmi Praba. The plaintiff/P.W.1 has categorically
admitted in his cross examination that “me;j yl;Rkpgpugh ,t;tHf;fpy; xU
jug;gpduhf nrh;;f;fg;gltpy;iy..”. Further, this defendant specifically pleaded
in his written statement that the defendants 9 and 10, as power agents of
defendants 7 and 8, have plotted out the property purchased by them and
alienated it to 33 different individuals and they are in possession of the same
and so they became co-sharers. The plaintiff has added a few purchasers, but he
has not added all the subsequent purchasers, so the suit is bad for non-joinder
of necessary parties. Therefore, without adding the sister of the plaintiff and
the subsequent purchasers/co-sharers, the present suit is not maintainable by
relying on the citation reported in (1994) 4 SCC 294 in the case of
Kenchegowda (since deceased) by Legal Representatives /v/ Siddegowda
alias Motegowda, in which it is held in paragraph No.16 as follows:
“16. …..Even otherwise, a suit for partial
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A.S(MD)No.128 of 2020partition in the absence of the inclusion of other joint
family properties and the impleadment of the other
co-sharers was not warranted in law. Thus, we find
no difficult in allowing these appeals which are
accordingly allowed.”
17.The learned counsel for the appellant further argued that in Ex.A.2
partition deed and earlier sale deeds, the plaintiff is also a party, when he
specifically admitted the partition in favour of his sister and he cannot ignore
other sale deeds as they were made for personal expenses of his father. The
plaintiff, who was born on 21.10.1991, became major on 21.10.2009. He filed
an amendment petition in 2013, after a lapse of three years from attaining
majority, amended the plaint by adding paragraph No.7a. Even then, he has not
challenged the sale deed dated 21.11.2002 and has not included it in his prayer,
despite making an averment. The plaintiff cannot pick and choose deeds.
The plaintiff produced Ex.A.5 – sale deed dated 13.02.2009, which was
executed by the 6th defendant in favour of defendants 7 and 8. The 6th
defendant specifically mentioned in Ex.A.5 that he purchased the suit property
from the 1st defendant under a sale deed dated 21.11.2002. The plaintiff has
also mentioned about the same in the plaint. Still, he has not challenged the
sale deed dated 21.11.2002 under which a Hindu Undivided Family property
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was sold by the 1st defendant for himself and for his minor son. Till date, the
plaintiff has not challenged the said deed of the year 2002. Moreover, it is
barred by limitation for seeking cancellation of the deed dated 21.11.2002.
Hence, when the plaintiff being an eo-nomiee party and has not challenged the
earlier sale deed dated 21.11.2002, cannot challenge subsequent sale deeds
under Ex.A.5 in respect of the 2nd item of the suit property and hence, these
acts of the plaintiff vitiate his case for the 2nd item and relied on the rulings as
follows:
(1) 1956 (2) MLJ 411 (FB) in the case of Sankaranarayana Pillai and
Anr. /v/ Kandasamy Pillai, it is held as follows:
“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(iv-A)
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. ”27/78
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A.S(MD)No.128 of 2020(2) 2001 (3) MLJ 15 in the case of Balu @ Balakrishnan /v/ Minor
B.Sasikumar and Others, wherein it is held in paragraph Nos.38 to 40 as
follows:
“38. The Full Bench also laid down that
where a minor is an eo nominee, a party to a sale or
other document of alienation by a guardian which
he seeks to avoid it is not enough for him to merely
sue for possession and pay Court fee only for
possession, but it is essential that he should seek for
cancellation of the document and pay appropriate
Court-fees, while pointing out that it makes no
difference whether the sale deed is executed by the
guardian of the minor as guardian or as manager of
the joint family and in either case the transaction
has to be challenged and set aside. In other words,
when he is an eo nominee party, it is not open to the
minor to ignore the transaction and seek possession
of the property. The legal position as held in the
pronouncements holds the field as no dicta to the
contra had been cited at the hearing.
39. Alienation made by father neither for
legal necessity nor for benefit of the estate, nor for
payment of antecedent debts is not valid and not
binding on the minor. For judging the validity of
such transactions or alienations each transaction28/78
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A.S(MD)No.128 of 2020should be examined independently.
40. If the alienation is not avyavaharika or
tainted with immorality or illegality and the debts
were antecedent in fact as well as in time to the
alienation, then the alienation made by father will
be binding and not otherwise. In Hindu Law, the
Manager of a joint Hindu family has power to
alienate the joint family property for value so as to
bind the interest of both adult and minor
coparceners in the property, provided the alienation
is made for legal necessity or for the benefit of the
estate. Further, whether a transaction is for the
benefit of the family or not, it would depend upon
the facts and circumstances of each case. It should
be of a defensive character or it could be one for
the benefit of the family.”(3) 2004 (13) SCC 480 in the case of Nagappan /v/ Ammasai Gounder
and Others, in which the Hon’ble Supreme Court has held in paragraph
Nos.8 and 9 as follows:
“8. The High Court held that in the absence
of a prayer for setting aside of the sale deeds, the
suit filed by the appellant for recovery of possession
was not maintainable. Placing reliance on the two
Division Bench judgments in Sridharan v.
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A.S(MD)No.128 of 2020Arumugam and in K.Jagannathan v.
A.M.Vasudevan Chettiar and a Full Bench decision
in C.R.Ramaswami Ayyangar v. C.S.Rangachariar
of his own High Court, the learned Single Judge
held that where the minor is an eo nomiee party to a
sale deed or other documents related to alienation,
he must sue for the cancellation of the documents
and it is not enough if he applies for possession
without getting the sale deed cancelled. Such a suit
would not be maintainable. Since the appellant had
failed to seek the relief of setting aside of the sale
deed and their cancellation, the suit filed by the
appellant was not maintainable.
9.The view taken in the impugned judgment is
in consonance with the view taken by this Court in
Vishwambhar v. Laxminarayan. In the said
decision, Their Lordships, after considering the
entire case law, held that sale effected without
taking permission of the Court under Section 8(2) of
the Hindu Minority and Guardianship Act, 1956 is
voidable at the instance of the plaintiffs and the
plaintiffs are required to get the alienation set aside
if they want to avoid the transfer and recover the
property from the purchasers. If a prayer for setting
aside the alienation is not made, then the suit
seeking possession would not be maintainable.”30/78
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A.S(MD)No.128 of 2020(4) Judgment of High Court Madras in A.S.No.183 of 2016 dated
19.04.2023 in the case of Puvaneswary Balachandran @ Shantha and
Ors. /v/ Vijayalakshmi and Ors., it is held in paragraph No.15 as follows:
“15.On the interpretation of Section 8 of the
Act, the Hon’ble Supreme Court and this Court, in
various judgments including the judgment in the
case of Murugan and others v. Kesava Gounder
(dead) through LRs and others reported in AIR
2019 SC 2696, have reiterated the position that any
alienation by the minor represented by the guardian
is voidable, and the alienation by the guardian is
binding on the minor unless it is set aside within a
period of three years from the date of attaining
majority. The relevant portion of the judgment is
extracted below: ….
20.The alienations, which were voidable, at
the instance of minor or on his behalf were required
to be set aside before relief for possession can be
claimed by the plaintiffs. Suit filed on behalf of the
plaintiffs without seeking prayer for setting aside
the sale deeds was, thus, not properly framed and
could not have been decreed.” In this case, the
alienation by 2nd plaintiff’s father under Ex.B12 is
not challenged by the minor within the period of
limitation on attaining majority. In such
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A.S(MD)No.128 of 2020
circumstances, Point No.(ii) is answered in favour
of the appellants, holding that the suit for partition
without a prayer to set aside the release deed under
Ex.B12 is not valid. ”
In the above settled position, when the plaintiff has not challenged the
earlier sale deed dated 21.11.2002, his challenge regarding the subsequent sale
under Ex.A.5, dated 13.02.2009, executed by the 6th defendant in favour of
defendants 7 and 8 is not sustainable and there is no pleading in respect of
Ex.A.5 sale deed in the plaint. The plaintiff became major on 21.10.2009.
So, within three years from the date of majority, the plaintiff has to challenge
the alienation under the sale deed dated 21.11.2002 as per Article 60 of the
Limitation Act. But the limitation to set aside the sale deed dated 21.11.2002 is
lost. Hence, the suit is not maintainable regarding the 2nd item of suit property.
18.The learned counsel for the appellant has relied on the decision of the
Hon’ble Supreme Court in the case of Vishwambhar and Others vs
Laxminarayan (dead) through LRs and Another, reported in 2001 (6) SCC
163, wherein it is held in paragraph No.9 as follows:
“9. ….If in law the plaintiffs were required to
have the sale deeds set aside before making any
claim in respect of the properties sold then a suit32/78
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A.S(MD)No.128 of 2020without such a prayer was of no avail to the
plaintiffs. In all probability realising this difficulty
the plaintiffs filed the application for amendment of
the plaint seeking to introduce the prayer for setting
aside the sale deeds. ……….Regarding the suit filed
by Vishwambhar it was filed within the prescribed
period of limitation but without the prayer for setting
aside the sale deeds. Since the claim for recovery of
possession of the properties alienated could not have
been made without setting aside the sale deeds the
suit as initially filed was not maintainable. By the
date the defect was rectified (December, 1985) by
introducing such a prayer by amendment of the
plaint the prescribed period of limitation for seeking
such a relief had elapsed. In the circumstances the
amendment of the plaint could not come to the
rescue of the plaintiff.”
19.The learned counsel for the appellant/9th defendant next argued that
the plaintiff has not proved the alleged alienation of immovable property for
illegal purposes. The plaintiff must plead that the alienation by his father is for
immoral or illegal purposes and the onus is heavily on him to show that the
recitals in the sale deed are false and the vendor did not receive any sale
consideration or that the consideration is for immoral or illegal purposes.
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The plaintiff must show that there was no antecedent debt for the family and
there was no compelling necessity.
20.For this argument, the learned counsel has relied on the ruling
reported in 1996 (1) CTC 661 in the case of P.B.Ramjee and two Ors. /v/
P.B.Lakshmanaswamy Naidu and ten Others, it is held in paragraph
Nos.8, 12 and 19 as follows:
”8.We have been taken through the entire
evidence on record. We do not find any justification to
interfere with the conclusion of the trial court on the
facts. The plaintiff has examined himself as P.W.I.
In his chief examination, he has stated that his father,
the first defendant used to play cards and drink,
According to him, the first defendant spent monies
only for playing cards and drinking and he never
effected repairs for the family house. It is stated that
the house continues to be in the same state of affairs
as it was when he was studying in the school.
It should be pointed out here that in the plaint, there
is no reference whatever to the first defendant playing
cards. In paragraph 4 of the plaint, the allegation is
that the plaintiffs father is a spend thrift and he
utilised the funds for discharging his “Avyavaharika”
debts. In paragraph 7, it is stated that the plaintiff34/78
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A.S(MD)No.128 of 2020feels that the amount was utilised for illegal and
immoral purposes. In the same paragraph, a vague
allegation is made to the effect that the first defendant
is a well known spend thrift and a race-goer.
Nowhere in the plaint there is any allegation that the
first defendant used to play cards or drink. In cross-
examination, the plaintiff has admitted that his
maternal uncle is not living with him. He has stated
that the plaint contains a reference to his father
playing cards and drinking after losing in the games,
whereas there is no such statement in the plaint.
12.We have no hesitation to hold that the evidence
adduced on the side of the plaintiff is hardly sufficient to
prove that the first defendant was addicted to drinking
and race-going; nor is it proved that he was playing
cards and that he was a spend- thrift. There is absolutely
no evidence to show that the debts were incurred for
illegal and immoral purposes. There is no doubt
whatever that the suit mortgage was executed for the
purpose of discharging the antecedent debt and thus it is
binding on the plaintiff.
19.A Division Bench of this court, in which one
of us was a party, had recently an occasion to
consider the question in Sridharan and Ors. v.
Arumugham and Ors., 1993 (2) M.L.J. 428 and it has
held that in so far as the documents in which the
minor children are made parties, they are bound in
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A.S(MD)No.128 of 2020
law to pray for setting aside the same and without
such prayer, the suit is not sustainable in relation to
those documents.”
(2) 2002 (3) MLJ 43 in the case Minor S.Vijayakumar (Died) and
Others. /v/ R.Subbarayan, it is observed and held paragraph Nos.13 to 23 as
follows:
”13. We have already noticed that the learned
Senior Counsel Mr.V.K. Muthuswamy wanted us to
draw distinction between the alienees who remained
ex parte as the evidence of the plaintiffs in regard to
the said alienations stands unchallenged by the
alienees concerned and those alienees who
contested the case. We do not think that this
contention by the learned Senior Counsel can be
countenanced at all. The larger question is whether
the alienations had been made by the first defendant
for his illegal or immoral purposes. This the
plaintiffs have to prove. If they succeed in proving
the same, all the alienations will go, otherwise they
will prevail.
14. It is not disputed that the plaintiffs are eo
nomine parties to the various transactions by the father
in favour of the different parties. In BALU @
BALAKRISHNAN VS. MINOR B. SASIKUMAR AND36/78
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A.S(MD)No.128 of 2020OTHERS (2001 (3) MLJ 15) E. PADMANABHAN, J.
has considered the question on this point by referring to
a number of decisions and has held that if a person is
an eo nomine party to a document, he should seek for
setting aside the alienations or should have sought for
cancellation of the alienations as well as the
encumbrances. The failure to seek cancellation would
be fatal to his case. It is not in dispute that possession
in the instant case has passed on to the alienees.
15.In Ramaswamy Aiyangar v. Rengachariar
(1940 (I) MLJ 32 = ILR 19 40 Madras 259 (FB))
referred to by the learned Judge it has been held
that “in a case where possession has passed on to
the alienee, there should be a prayer for setting
aside the transactions before the plaintiff could
recover possession from the said alienee.”
16.In Sankaranarayana Pillai v. Kandasami
Pillai (AIR 1956 Madras 670 = 1956 (2) MLJ 411)
it has been held by the subsequent Full Bench
without any room for doubt that if the minor is an eo
nomine party to a sale deed or other documents of
alienations, he should sue for the cancellation of the
documents and it is not enough if he applies for
possession. The hypothesis would be the same
whether the father as guardian of the minor and not
as the Manager of the joint family executes the
deed.
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17. The position therefore is that the present
suit having been filed by the plaintiffs for a mere
declaration that the alienations are not binding on
them without specifically seeking to set aside the
alienations, is not maintainable. The appeal can be
dismissed on this short ground. However, we will
discuss the materials available on record with
regard to the other points, which have been raised
for consideration.
18.It is settled law that minors’ impugning
alienations by joint family Manager/Father should
allege and prove that they were for immoral or
illegal purposes. The onus is on them to show that
the recitals in the deeds are false and that the
vendor did not receive consideration or that the
consideration was for immoral or illegal purposes.
19.In matters like this where the minors
challenge alienations by father/Manager on the
ground that the alienations were brought about by
the father for illegal or immoral purposes, that there
were no antecedent debts for the family, that there
was no compelling necessity or that no benefit
accrued to the estate, there are certain basic and
rudimentary requirements to be satisfied.
20. It is incumbent on the plaintiffs to prove
that there was income from the family properties,
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that it was adequate and that “after meeting the
generality of the expenses connected with the family
there could have been available surplus, the
existence of which cannot prompt reasonable
persons to borrow unnecessarily or to mortgage
unnecessarily the family properties, so as to
ultimately burden them.”-
Santanavenugopalakrishnan and others v.
K.V.Venugopal (1976 (2) MLJ 134).
21.As pointed out in Raghubanchmani
Prasad Narain Singh vs. Ambica Prasad Singh (AIR
1971 SC 776), alienation by Manager of joint Hindu
Family even without legal necessity is voidable and
not void.
22. The onus lies on the plaintiff to prove that
the recital in the document as to payment of
consideration is false and in fact the executant did
not receive consideration. Smt.Rani and Antoher v.
Smt.Santa Bala Debnath and others (AIR 1971 SC
1028).
23. It is also well settled by precedents that
even if there was no binding purpose, even if the
alienation was not for discharging antecedent debts,
for necessity or benefit of the estate as long as there
is a debt and it had not been incurred for any
immoral or illegal purpose, on the theory of pious
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obligation, the sons would be liable to discharge the
debts out of the joint family property in their hands.
21.The learned counsel for the appellant further argued that it is also
equally settled law that if there was no binding purpose, even if the alienation
was not for discharging antecedent debts, for benefit of estate the sons would
be liable to discharge the same out of joint family property in their hands by
relying on decision of the Hon’ble Apex Court reported in AIR 1964 SC 1425
in the case of “Virdhachalam Pillai vs. Chaldean Syrian Bank Ltd. Trichur
and Anr. It is held in paragraph Nos.8 and 9 as follows:
“8.Are the debts sued on incurred for family
necessity and binding upon the 2nd defendant?”….
An issue in this form arose because of the different
views entertained of the Hindu law as regards the
scope of the pious obligation of a son to discharge
the debts of the father which are not illegal or
immoral. In the view of Hindu lawyers the
repayment of a debt was conceived of not merely as
a legal obligation which had been undertaken
when the debt was incurred but non-repayment was
considered a sin. The duty of relieving the debtor
from this sin was fastened on his male descendents
to the third degree. The duty being thus religious, it40/78
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A.S(MD)No.128 of 2020was held not attracted if in its nature it was illegal,
or immoral i.e., avyavaharika. Whatever might
have been the extent of the son’s liability according
to the Hindu law givers, under the Mitakshara law
as administered in all the States, the liability of the
son, grandson, great grand son etc., was not
treated as a personal liability but as dependent on
his becoming entitled to family assets and that it
extended to the entirety of his interest therein, but
no more.
9.The authorities to which it is wholly
unnecessary to refer, have firmly established the
following and the position is not in doubt:
(1) A father can by incurring a debt, even
though the same be not for any purpose necessary
or beneficial to the family so long as it is not for
illegal or immoral purposes, lay the entire joint
family property including the interests of his sons
open to be taken in execution proceedings upon a
decree for the payment of that debt.”
22.The learned counsel for the appellant further argued that the plaintiff
has not produced the sale deed dated 21.11.2002 in respect of the 2nd item.
The sale deeds dated 21.03.1999 and 31.03.1997 in respect of the 1st item were
produced as Ex.A.3 and Ex.A.4 and the recitals therein show that the properties
were sold for pending debts and improvement of the Hindu undivided family
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A.S(MD)No.128 of 2020
and to develop agricultural prospects and also to clear the debt covered by the
Court decree in O.S.No.635 of 1995. The plaintiff has not produced any contra
material to disprove the same, but he admitted in his cross-examination that
there is no sufficient income from their agricultural properties, while he
pleaded that there is sufficient income from the property. He stated as “jhth
brhj;Jf;fspy; ey;y tUkhdk; fpilf;ftpy;iy..”. The trial Court has
concluded that the 1st defendant sold the properties for his illegal purpose
based on the evidence of P.W.2, who deposed that the 1st defendant had the
habit of playing cards along with bad company. P.W.2 has not deposed about
the alienations and he is unaware of family properties and other civil
litigations. Hence, this evidence is unworthy. The trial Court has not even
framed an issue regarding illegal or immoral expenses. There is no
documentary evidence to show that the alienations were without
consideration. The 1st defendant has not entered into the witness box and
subjected himself for cross examination, if so, the sale done by him can be held
as per the contents mentioned in those sale deeds. The plaintiff admits that he
received money accepting the other litigation in respect of the alienation by his
father in O.S.No.12 of 2009. The plaintiff wantonly avoided impleading
his sister Lakshmi Praba in this suit and purposely filed this suit
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only with respect of selling of 2 acres under Ex.A.3 & Ex.A.4 and 1 acre 81
cents in Ex.A.5. He also purposely suppressed the other suits in O.S.No.305 of
2011, O.S.No.155 of 2011 and O.S.No.154 of 2011. These show that the
plaintiff, with the intention of grabbing money, has filed this suit.
23.The learned counsel for the appellant further submitted that the
plaintiff has admitted that the properties were alienated and the defendants
11 to 16 and other purchasers are in possession of the property, if so, the
plaintiff has to pay the Court fee U/s.37(1) and not U/s.37(2). On this aspect
also, the suit is not maintainable.
24.Lastly, the learned counsel for the appellant/9th defendant has
submitted that the 1st defendant was given a total extent of 10 acres 42 cents
and he separately purchased 70 cents. The plaintiff has not shown all the above
extent of property as suit property, he has only showed 3 acres 81 cents out of
the total 10 acres 42 cents. Even for the sake of argument, the plaintiff is
entitled to a 1/2 share, leaving 2 acres 50 cents given to his sister, the
remaining land available is 7 acres 92 cents and out of which the plaintiff and
the 1st defendant are entitled to 3 acres 96 cents each. While so, on applying
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equity, the subsequent purchasers can be entitled to the suit property measuring
3 acres 81 cents from the share of the 1st defendant. Hence, the appeal may be
allowed.
25.The respondents 4, 5, 6, 8, 9,12 and 13 adopt the arguments advanced
by the appellant’s side.
26.Per contra, the learned counsel for the 1st respondent/plaintiff has
argued that the appellant mainly contended that the plaintiff has not included
all the properties allotted to the share of 1st defendant under ‘C’ Schedule of
partition deed, dated 27.04.1984 and also non inclusion of properties allotted
to the plaintiff and the 1st defendant under ‘A’ Schedule in Ex.A.2 partition
deed dated 17.04.1998. In the earlier partition, the ancestral properties were
partitioned by the brothers of the Hindu Undivided Family. Thereafter, from
out of his property, the 1st defendant gave property to his daughter under
Ex.A.2 registered partition deed dated 17.04.1998. The plaintiff has not
challenged Ex.A.2 partition deed dated 17.04.1998 and has simply stated that
the recitals are not binding on him. He has not sought any relief regarding the
share allotted to his sister Lakshmi Praba, and he has filed the suit for partition
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of the share of the plaintiff and the 1st defendant, leaving the property allotted
to his sister. Further, the plaintiff has specifically explained the non-inclusion
of some other portion of properties covered under Ex.A.2 that one Govindaraj
filed a suit in O.S.No.12 of 2009 for specific performance and, on attaining
majority, he questioned the sale agreement and as the said Govindaraj paid half
the share amount to the plaintiff, he did not include those properties.
The concept of partial partition is not statutory. The basis is that a person
should not repeat suits one by one. The principle of partial partition has
exceptions also and the Hon’ble Supreme Court has modified the law on partial
partition in its decisions as follows:
(1) 2022 SCC Online SC 240 in B.R.Patil vs. Tulsa Y.Swakar case in
which it is held in paragraph No.10 as follows:
”10.This is the state of the pleading and
evidence in support of the existence of the property
other than what has been scheduled by the plaintiffs
and for which partition is sought. It is true that the
law looks with disfavor upon properties being
partitioned partially. The principle that there cannot
be a partial partition is not an absolute one. It admits
of exceptions. In Mayne’s ‘Treatise on Hindu Law &
Usage’ 17th Edition, Paragraph 487, reads as
follows:
45/78
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A.S(MD)No.128 of 2020“487. Partition suit should embrace all
property – Every suit for a partition should
ordinarily embrace all joint properties. But this
is not an inelastic rule which admits
circumstances of a particular case or the
interests of justice so require. Such a suit,
however, may be confined to a division of
property which is available at the time for an
actual division and not merely for a division of
status. Ordinarily a suit for partial partition does
not lie. But, a suit for partial partition will lie
when the portion omitted is not in the possession
of coparceners and may consequently be deemed
not to be really available for partition, as for
instance, where part of the family property is in
in the possession of a mortgagee or lessee, or is
an impartible Zamindari, or held jointly with
strangers to the family who have no interest in
the family partition. So also, partial partition by
suit is allowed where different portions of
property lie in different jurisdictions, or are out
of British India. When an item of property is not
admitted by all the parties to the suit to be their
joint property and it is contended by some of
them that it belongs to an outsider, then a suit for
partition of joint property excluding such item46/78
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A.S(MD)No.128 of 2020does not become legally incompetent of any rule
against partial partition.”(2) 2026 (1) CTC 314 (DB) in the case of Ponselvam and Ors. v.
K.Kalaiselvi, it is held in paragraph Nos.10 and 15 as follows:
“10.The learned Senior Counsel appearing
for the appellants had relied upon a decision of the
Hon’ble Supreme Court reported in B.R.Patil v.
Tulsa Y. Sawkar and others, 2022 SCC Online SC
240 to contend that the suit is bad for partial
partition.
15.As and when the other co-owners of
Pandi Nadar choose to seek for partition, the
parties to the present suit can claim their
respective shares. The wife of the deceased son of
Pandi Nadar cannot be made to wait for an
indefinite period till the members of the larger co-
parcenary (who do not make any claim over the
suit schedule properties) choose to partition their
properties. Therefore, the suit is not bad for partial
partition. As a consequence, the non-impleading of
other relatives of Pandi Nadar would not render
the suit as bad for non-joinder of necessary
parties.
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(3) 2022 (5) CTC 204 in P.Amnachalam and Others v. M.Kaliammal
and Anr. case, wherein it is held in paragraph Nos.13, 19 and 27 as follows:
”13.In approaching the issue, it is necessary
to remember that the conceptual defense of partial
partition need not, and hence does not, operate
uniformly. Before addressing it, it is necessary to
restate why a suit for partial partition is not
encouraged, or rather not permitted.
The underlying principle is that in a suit for metes
and bounds partition of an estate held in common
as in co-sharership or co-ownership, Courts are
required to adjust the equities as between the
co-sharers/co-owners based on the character and
value of the properties. Courts are required to
factor in the divisibility of the property, the value of
the property, provision for convenient enjoyment of
a specific property to be allotted to parties, and if
there are alienees of whole or any portion of any
such property or properties, as the case may be,
from any of the co-sharers or co-owners, then to
transfer such equities that their vendors would be
entitled to. Therefore, unless all the properties are
before the Court, adjusting inter se equities
between the parties vis-à-vis the properties48/78
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A.S(MD)No.128 of 2020required to be partitioned may not be possible. This
describes the ground rule against suits for partial
partition.
Working the Plea of Partial Partition:
19.As would be seen later, a defense founded
in a plea of partial partition can produce different
consequences, and not necessarily the same. But,
before addressing it, it is necessary to categorise
the situations where issue of partial partition may
arise:
a) Where the co-sharers or co-owners, as the
case may be, do not know about the existence or
availability of properties other than those litigated
upon.
b) Where the plaintiff is in actual physical
possession or in exclusive management of the
partible properties, holding them also for the
benefit of the other co-sharers.
c) Where the plaintiff is not in actual
physical possession of the estate, enjoys it
constructively with the co-sharer in possession, or
where the defendant is in an identical position as
the plaintiff in situation (b).
d) Where a suit is laid or defended by an
alienee of a co-sharer or a co-owner.
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27.The conclusion is to state the obvious.
The suit has to be decreed with a rider barring the
plaintiffs from instituting any further suit for the
partition of any properties not included in the present
suit, as it would amount to abuse of judicial process.”
The judgment relied on by the appellant reported in AIR 1952 Madras
419 and 2006 (1) CTC 267, which were rendered by the High Court, whereas
the decision relied on by the plaintiff in 2022 SCC Online SC 240 is the latest
judgment of the Hon’ble Supreme Court and hence, the decision of the
appellant in 1994 (4) SCC 294 may not hold good due to march of law.
Therefore, there is a chance for a partial partition case and instead of
dismissing the suit, a preliminary decree can be passed foreclosing other items.
27.The learned counsel for 1st respondent/plaintiff has further submitted
that the appellant/9th defendant raised a plea that the sister of the plaintiff and
subsequent purchasers were not impleaded. The contention is not correct.
The plaintiff admitted the execution of the partition deed dated 17.04.1998
regarding the properties belonging to the plaintiff, his sister and the
1st defendant and in that partition, his sister Lakshmi Praba was given a share,
so she is not a member of the joint family of the plaintiff and the 1st defendant
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A.S(MD)No.128 of 2020
and hence, there is no question of impleading Lakshmi Praba as a party to the
suit. Further, the plaintiff has added the purchasers who purchased the
properties prior to filing of the suit as defendants 2 to 8. The appellant’s plea is
that the 2nd item was purchased by the 6th defendant from the 1st defendant on
21.11.2002 and he sold the same to defendants 7 and 8. The defendants 7 and 8
executed a power deed in favour of defendants 9 and 10, who sold the property
by converting it into plots to the defendants 11 to 16 and other purchasers.
It is the specific case of the plaintiff that his father, the 1st defendant, sold the
family properties for his illegal and immoral activities for gambling and
wayward life. The plaintiff examined P.W.1 and P.W.2 to substantiate the illegal
and immoral expenses. On the defendants’ side, except for putting suggestions,
no adverse evidence was obtained from P.W.1 and P.W.2. The sale deeds
executed in favour of defendants 2 to 8 are not for family necessity. When the
plaintiff attacks the sale deeds made by his father as being for illegal and
immoral purposes and not for family necessity, the initial burden lies upon the
said purchasers/defendants 2 to 8 U/s.101 to 104 of the Indian Evidence Act.
None of the defendants 2 to 8 entered into witness box to substantiate their
case and no document was filed in their favour. The non-adducing of evidence
by the defendants by not entering the witness box is fatal to their case and
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relied on the decision reported in 2025 SCC Online SC 2149 in K.S.Shivappa
vs. K.Neelamma case, in which it is held in paragraph Nos.38 to 40 as
follows:
“38. The aforesaid plaintiff, Smt. K. Neelamma
had not entered the witness box to prove her plaint
case or to assert her title over the suit property.
She had not even proved the sale deed dated
17.12.1993 under which she has allegedly purchased
the suit land from Krishnoji Rao or to state that
Krishnoji Rao was having a valid title over the said
land to transfer her. In fact, she could not even upon
entering the witness box could have proved the valid
title of Krishnoji Rao in the absence of any plaint
allegations to the above effect. It is settled that the
evidence either ocular or documentary cannot travel
beyond the pleadings.
39. The power-of-attorney holder of the
plaintiff, Smt. K. Neelamma namely Shivaji Rao
Salanki, PW-1 was not competent to depose or to
prove anything which was not within his personal
knowledge or was otherwise personally known to the
plaintiff, Smt. K. Neelamma. The testimony of such a
witness i.e. a power-of-attorney holder is inadmissible
with regard to the facts within the personal knowledge52/78
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A.S(MD)No.128 of 2020of the plaintiff who has failed to enter the witness box.
This is settled by this Court in Janki Vashdeo
Bhojwani vs. IndusInd Bank Ltd. In the recent case of
Rajesh Kumar vs Anand Kumar and Ors., a Division
Bench of this Court in which one of us (P. Mithal,
J. was a member) reaffirmed the principle that where
the plaintiff refuses to testify, the proxies cannot
substitute his personal testimony on key issues within
the personal knowledge of the plaintiff. A Power-of-
Attorney holder is thus, not entitled to depose in place
of the principal.
40. In the overall facts and circumstances of
the case, firstly for the reason that the plaintiff failed
to enter the witness box so as to testify and prove her
plaint case; and secondly for the reason that the sale
deed executed by the father of the minors was
repudiated by the minors within time on attaining
majority, no valid right or title stood transferred to
Krishnoji Rao from whom Smt.K.Neelamma had
allegedly purchased the suit land. Therefore, the suit
as instituted has to fail.”
28.The learned counsel for the 1st respondent/plaintiff further submitted
that even the 1st defendant has not entered the witness box to disprove the
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version of the plaintiff. So, the alienation made by the 1st defendant is not for
family necessity. For this argument, the learned counsel relied on the ruling of
the Hon’ble Supreme Court reported in 2011 (12) SCC 220 in Rangammal vs.
Kuppusamy and Another case, in which it is held in paragraph Nos.20, 21,
28 and 31 as follows:
“20.Therefore, it is more than apparent that
when the plaintiff/respondent came up with a case of
execution of sale deed on 24.2.1951 for half of the
schedule property/disputed property alleged to have
been sold out for legal necessity which had fallen
into the share of appellant Rangammal, the burden
clearly lay on the plaintiff/respondent No.1 to
discharge that the sale deed executed by Kumara
Naicker to his own son and nephew Arumuga
Gounder in regard to the share which had admittedly
fallen into the appellant share Rangammal who was
a minor, was sold for the legal necessity. But this
burden by the trial court was wrongly cast upon the
appellant/Rangammal to discharge, although, it is
well-settled that the party who pleads has also to
prove his case.
21.Section 101 of the Indian Evidence Act,
1872 defines ‘burden of proof which clearly lays
down that:
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A.S(MD)No.128 of 2020
101. Burden of proof. – Whoever desires any
Court to give judgment as to any legal right or
liability dependent on the existence of facts which he
asserts, must prove that those facts exist.When a
person is bound to prove the existence of any fact, it
is said that the burden of proof lies on that person.
Thus, the Evidence Act has clearly laid down
that the burden of proving fact always lies upon the
person who asserts it. Until such burden is
discharged, the other party is not required to be
called upon to prove his case. The court has to
examine as to whether the person upon whom burden
lies has been able to discharge his burden. Until he
arrives at such conclusion, he cannot proceed on the
basis of weakness of the other party.
28.When the plaintiff-respondent No.1-
Kuppuswami came with a specific pleading for the
first time in a partition suit that the appellant’s share
had been sold out by her de facto guardian Kumara
Naicker without even the permission of the court, it
was clearly the plaintiff/respondent No.1 who should
have discharged the burden that the same was done
for legal necessity of the minor in order to discharge
the debt which the deceased mother of the appellant
was alleged to have been owing to some one. When
the plaintiff/respondent No.1 failed to discharge this
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A.S(MD)No.128 of 2020
burden, the question of discharge of burden to
disprove the sale deed by the 2nd
defendant/appellant-Rangammal do not arise at all
as per the provisions of Evidence Act.
31.Application of Section 101of the Evidence
Act, 1872 thus came up for discussion in Subhra
Mukherjee case and while discussing the law on the
burden of proof in the context of dealing with the
allegation of sham and bogus transaction, it was
held that party which makes allegation must prove it.
But the court was further pleased to hold wherein the
question before the court was “whether the
transaction in question was a bona fide and genuine
one” so that the party/plaintiff relying on the
transaction had to first of all prove its genuineness
and only thereafter would the defendant be required
to discharge the burden in order to dislodge such
proof and establish that the transaction was sham
and fictitious. This ratio can aptly be relied upon in
this matter as in this particular case, it is the
plaintiff/respondent No.1-Kuppuswami who relied
upon the alleged sale deed dated 24.2.1951 and
included the subject-matter of the property which
formed part of the sale deed and claimed partition.
This sale deed was denied by the defendant/appellant
on the ground that it was bogus and a sham
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A.S(MD)No.128 of 2020
transaction which was executed admittedly in 1951
when she was a minor.”
Hence, the rulings relied on by the appellant in 1996 (1) CTC 661 (DB)
and 2002 (3) MLJ 43 (DB) rendered by the High Court. Whereas, the reliance
placed by plaintiff in 2011 (12) SCC 220 is rendered by the Hon’ble Supreme
Court and hence, the plaintiff proved that the sales were made by the
1st defendant for illegal and immoral activities.
29.The learned counsel for the plaintiff further argued that the plaintiff
specifically pleaded in his plaint about the invalidity of the sale deed dated
21.11.2002. The defendants 1, 3 and 9 filed written statements.
The 6th defendant filed a written statement and an additional written statement.
The 6th defendant filed a suit for recovery of possession in O.S.No.305 of
2011 and the same was dismissed for default, thereafter, the 6th defendant did
not take steps for restoration of the said suit. The appellant/9th defendant has
purposely not included the written statement of the 6th defendant in the typed
set for appeal. So, the transaction dated 21.11.2002 is illegal, as substantiated.
The trial Court has framed an issue including the invalidity of the sale deed
dated 21.11.2002. When both parties clearly understood and addressed the
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A.S(MD)No.128 of 2020
Court, the omission of a prayer for the sale deed dated 21.11.2002 by
typographical omission, which is a small mistake, is not fatal to the suit.
The sale deed dated 22.12.2009 executed by the 6th defendant in favour of
defendants 7 and 8 was specifically questioned and the defendants 7 and 8
remained exparte. So, the omission of the sale deed dated 21.11.2002 in the
prayer is totally irrelevant. The trial Court has properly discussed the case and
decided that all these sale deeds are null and void. Therefore, the finding of the
trial Court is correct and the appeal may be dismissed.
30.In reply, the learned counsel for the appellant/9th defendant submitted
that the plea of the plaintiff, stating that the question of partial partition does
not arise as the partition deed Ex.A.2 dated 17.04.1998, is not correct. Because
the plaintiff himself in the plaint averred that the Ex.A.2 partition would not
bind him and in re-examination, plaintiff/P.W.1 clearly deposed that he has not
accepted Ex.A.2. He deposed as “th.rh.M.2 ghfg;gphptpid gj;jpuj;ij
cz;ik vd;W ehd; Vw;Wf;bfhs;stpy;iy.” The trial Court held that the
Ex.A.2 partition is not binding on the plaintiff while answering issue No.4.
So, the plaintiff admitted that Ex.A.2 is not accepted. The suit is filed for
3 acres 81 cents, when the plaintiff admitted that his father was allotted
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A.S(MD)No.128 of 2020
10 acres 81 cents in Ex.A.1 dated 27.04.1984. The plaintiff has not included
2 acres in the partition. The 6th defendant, who purchased the property in
2002, has filed a written statement and specifically contended about the
non-inclusion of property allotted to the plaintiff’s sister. So, the suit is hit by
partial partition. The 6th defendant has also pleaded that he took possession of
the property covered under the deed dated 21.11.2002 and a patta was also
issued to him. Thereafter, the 6th defendant sold the property to defendants
7 and 8, who in turn gave power to defendants 9 and 10 and they sold them as
house plots. Further, the plea of alienation by his father for illegal or immoral
activities has to be proved by the plaintiff and the initial burden lies on him and
not on the purchasers. Unless the sale deed dated 21.11.2002 is proved invalid,
the prayer sought in this suit could not be granted to the plaintiff.
Therefore, the appeal may be allowed.
31.Both parties have made rival arguments in respect of their respective
cases, relying on citations. I have carefully perused the material records and
considered the citations. On hearing both sides and on perusing the material
records, it is clear that the suit properties and other properties originally
belonged to the family of 1st defendant and his brothers Kandasamy and
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A.S(MD)No.128 of 2020
Nallasamy and that they entered into a registered partition deed dated
27.04.1984 through which the land measuring 8 acres 61 cents in S.No.634 and
land measuring 1 acre 81 cents in S.No.635 of Oddanchatram Village, totalling
10 acres 42 cents along with pathway right and water well etc., were allotted to
the 1st defendant. The said partition deed is marked as Ex.A.1. It is the case of
the plaintiff that his father/1st defendant had sold the suit properties for his
personal lavish expenses and not for the benefit of the joint family and without
the knowledge of the family, so the sales made by the 1st defendant are null
and void, and he sought partition. The defendants denied the version of the
plaintiff and contested the suit. The trial Court held that the 1st defendant sold
properties towards spending money on playing cards and so the sales are null
and void and granted partition. Now, the 9th defendant challenges the finding
of the trial Court.
32.The plaintiff has examined himself as P.W.1 and examined one
Natrayan as P.W.2. They stated in their evidence that the father of the plaintiff,
namely R.Krishnan, has sold out the family properties and utilized the sale
consideration for his personal illegal and immoral activities and not for the
benefit of the family. The plaintiff’s counsel argues that the purchasers from
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the father Krishnan have to prove that the sale consideration was given for the
benefit of the family and that the initial burden lies on them. This argument is
not acceptable. Because it is a settled principle that the litigant who moves the
Court has to prove his case first, and then the opposite party has to rebut the
same. Section 101 of the Indian Evidence Act says that the initial burden lies
on the litigant who files the suit and the opposite party (defendant) is not
required to prove anything until the plaintiff successfully establishes a
prima facie case. This has been clearly held by the Hon’ble Supreme Court in
Rangammal case ((2011) 12 SCC 220), relied on by the plaintiff’s side.
The plaintiff has marked the sale deeds dated 24.03.1997 and 31.03.1997
executed in favour of defendants 2 to 5 by the father of the plaintiff. A perusal
of the recitals in Ex.A.3 reads as follows:
‘jq;fSf;F &gha; 2>80>000-00f;F fpiuak; nra;J
nfhLj;J njhifiag; ngw;Wf; nfhz;ljw;F tpguk;:-
(1) kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> xl;ld;rj;jpuk; fpuhkk;> Jk;kpr;rk;gl;bGJ}hpy;
trpf;Fk; godpag;gfTz;lh; mth;fs; kfd;
v];.gp.tPug;gd; mth;fsplkpUe;J nuhf;fk; ngw;Wf;
nfhz;L vOjpf;nfhLj;jpUf;Fk; GNuhNehl;Lf;
flDf;fhf Nkw;gbahh; jpz;Lf;fy; rg;-Nfhh;l;by; X.v];.
637/95 ek;guhf bf;fphp ngw;wpUf;Fk; tiff;F ehsJ
Njjp tiu Nkw;gbahUf;F bf;fphpf;fhf Nfhh;l; nryT61/78
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A.S(MD)No.128 of 2020tifawh cl;gl rh;tlf;fkhf nry;yhf Ntz;baJ
&gha; 57>050-00.
(2) kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> xl;ld;rj;jpuk; fpuhkk;> fhe;jpefhpy; trpf;Fk;
tPug;gfTz;lh; mth;fs; kfd; tp.uhk%h;j;jp
mth;fsplkpUe;J nrd;w 3.10.1996 Njjp ehd; &gha;
75>000-00 nuhf;fk; ngw;Wf; nfhz;L
vOjpf;nfhLj;jpUf;Fk; GNuhNehl;Lf; flDf;F ehsJ
Njjp tiu Nkw;gbahUf;F tl;bf;F nry;yhdJ Nghf
mrYf;F nry;yhf Ntz;ba &gha; 75>000-00.
(3) kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> xl;ld;rj;jpuk; fpuhkk;> Jk;kpr;rk;gl;bGJ}hpy;
trpf;Fk; nt.kiyag;gfTz;lh;; mth;fs; kfd;
vk;.godpr;rhkp mth;fsplkpUe;J nrd;w 15.10.1996e;
Njjp ehd; &gha; 75>000-00 vOgj;jp Ie;jhapuk;
nuhf;fk; ngw;Wf; nfhz;L vOjpf;nfhLj;jpUf;Fk;
GNuhNehl;Lf; flDf;F ehsJ Njjp tiu
Nkw;gbahUf;F tl;bf;F nry;yhdJ Nghf mrYf;F
nry;yhf Ntz;ba &gha; 75>000-00.
(4) kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> xl;ld;rj;jpuk; fpuhkk;> Jk;kpr;rk;gl;bGJ}hpy;
trpf;Fk; fhyQ;nrd;w nts;isag;gfTz;lh; mth;fs;
kfd; nt.kiyag;gfTz;lh;; mth;fsplkpUe;J nrd;w
3.11.1996e; Njjp ehd; &gha; 50>000-00 Ik;gjhapuk;
nuhf;fk; ngw;Wf; nfhz;L vOjpf; nfhLj;jpUf;Fk;
GNuhNehl;Lf; flDf;F ehsJ Njjp tiu
Nkw;gbahUf;F tl;bf;F nry;yhdJ Nghf mrYf;F
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nry;yhf Ntz;ba &gha; 50>000-00.
Nkw;fz;l tpgug;gb Nfhh;l; bf;fphpf;Fk;>
GNuhNehl;LfSf;Fk; nry;yhf Ntz;ba njhiffis
jhq;fNs vdf;fhf Nkw;gbahh;fSf;F njhif nrYj;jp
bf;fphpf;F jFe;j MjuT ngw;Wk; gpuhk;rhp
Nehl;LfSf;F nry;Yld; thg]; ngw;Wf;
nfhs;tjhfTk; mthyj;J nra;J nfhz;l tifapy;
vdf;F nry;yhdJ &gha; 2>57>050-00.
ikdh;fslq;fpa FLk;g Kd;Ndw;w nrytpw;fhfTk;>
tptrha mgptpUj;jp nrytpw;fhfTk; ehsJ Njjp ehd;
jq;fsplkpUe;J mbapw;fz;l rhl;rpfs; Kd;ghf
nuhf;fk; ngw;Wf; nfhz;lJ &gha; 22>950-00.
Mf Nkw;fz;l tpgug;gb fpiuaj; njhif &gha;
2>80>000-00 ,uz;L yl;rj;J vz;gjhapuKk; vdf;F
nry;yhfp tpl;lgbahy; fpiuar; nrhj;ijAk; ,d;Nw
jq;fSf;F RthjPdk; nfhLj;J jhq;fSk; RthjPdk;
mile;J nfhz;lgbahy; ehsJ Njjp Kjy; Nkw;gb
nrhj;ij fpiua ghj;jpaj;Jld; rh;t Rje;jpu
ghj;jpakha; Mz;lDgtpj;Jf; nfhs;tPh;fshfTk;>
fpiua nrhj;ijg; nghWj;J ,dpNky; vdf;Nfh>
vd;Dila thhpRfSf;Nfh vt;tpj ghj;jpaKk;
gpd;njhlh;r;rpAkpy;iy. fpiua nrhj;ijg; nghWj;J
vt;tpj tpy;yq;fKk; ,y;iynad;W cWjp $WfpNwd.;;
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33.The recitals in Ex.A.4 which would read as follows:
‘nrhj;Jf;fspy; ,jdbapy; tpthpf;fg;gl;Ls;s
tptrha epyj;ij kl;Lk; ehd; jq;fSf;F &gha;
28>00>000-00f;F fpiuak; nra;J nfhLj;J njhifiag;
ngw;Wf; nfhz;ljw;F tpguk;:-
(1) kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> Xilg;gl;b fpuhkk;> ntq;fplhGuj;jpy; ,Uf;Fk;
gp.Kj;Jr;;rhkpf;fTz;lh; mth;fs; kfd; vk;.nry;yKj;J
mth;fsplkpUe;J nrd;w 14.4.1994k; Njjp ehd;
&gha; 50000.00 nuhf;fk; ngw;Wf;nfhz;L
vOjpf;nfhLj;j GNuhNehl;L flDf;F ehsJ Njjptiu
Nkw;gbahUf;F tl;bf;F nry;yhdJ Nghf mrYf;F
nry;yhf Ntz;baJ &gha; 50000.00
(2)kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> Xilg;gl;b fpuhkk;> ntq;fplhGuj;jpy; ,Uf;Fk;
godpkiyf;fTz;lh; mth;fs; kfd; nry;yf;Fkhh;
fTz;lh; mth;fsplkpUe;J nrd;w 7.10.1994k; Njjp ehd;
&gha; 45000.00 nuhf;fk; ngw;Wf;nfhz;L
vOjpf;nfhLj;jpUf;Fk; GNuhNehl;L4- flDf;F ehsJ
Njjptiu Nkw;gbahUf;F; tl;bf;F nry;yhdJ Nghf
mrYf;F nry;yhf Ntz;baJ &gha; 45000.00
3)kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> Xilg;gl;b fpuhkk;> ntq;fplhGuj;jpy; ,Uf;Fk;
godpr;rhkpf;fTz;lh; mth;fs; kfd;
fpU\;zrhkpfTz;lh; mth;fsplkpUe;J nrd;w
12.11.1994k; Njjp ehd; &gha; 45000.00 nuhf;fk;
ngw;Wf;nfhz;L vOjpf;nfhLj;jpUf;Fk; GNuhNehl;L
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flDf;Fk; ehsJ Njjptiu Nkw;gbahUf;F tl;bf;F
nry;yhdJ Nghf mrYf;F nry;yhf Ntz;baJ &gha;
45000.00
4)kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> rpe;jyg;gl;b fpuhkk; f];gh
rpe;jyg;gl;bapy; ,Uf;Fk; nghd;Dr;rhkpf;fTz;lh;
mth;fs; kfd; Fg;Gr;rhkp mth;fsplkpUe;J nrd;w
25.12.1994k; Njjp ehd; &gha; 40000.00 nuhf;fk;
ngw;Wf;nfhz;L vOjpf;nfhLj;jpUf;Fk; GNuhNehl;L
flDf;F ehsJ Njjptiu Nkw;gbahUf;Fk; tl;bf;F
nry;yhdJ Nghf mrYf;F nry;yhf Ntz;baJ &gha;
40000.00
5)kd;dh; jpUkiy khtl;lk;> xl;ld;rj;jpuk;
tl;lk;> xl;ld;rj;jpuk; fpuhkk;
tp];tehjGuj;jpy; ,Uf;Fk; fUg;gzfTz;lh; mth;fs;
kfd; fpl;lhd; mth;fsplkpUe;J nrd;w 20.01.1994k;
Njjp ehd; &gha; 40000.00 nuhf;fk; ngw;Wf;nfhz;L
vOjpf;nfhLj;jpUf;Fk; GNuhNehl;L flDf;F ehsJ
Njjptiu Nkw;gbahUf;F tl;bf;F nry;yhdJ Nghf
mrYf;F nry;yhf Ntz;baJ &gha; 40000.00.
Nkw;fz;l tpgug;gb GNuhNehl;LfSf;F nry;yhf
Ntz;ba njhiffis jhq;fNs vdf;fhf
Nkw;gbahh;fSf;F njhif nrYj;jp GNuhNehl;Lfis
nry;Yld; thg]; ngw;Wf;nfhs;tjhf Rthypj;J nra;J
nfhz;l tifapy; vdf;F nry;yhdJ &gha;
2>60>000.00 ehsJ Njjp ehd; jq;fsplkpUe;J
ikdh;fslq;fpa FLk;g Kd;Ndw;w nrytpw;fhfTk;
tptrha mgptpUj;jp nra;tjw;fhfTk; mbapw;fz;l
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rhl;rpfs; Kd;ghf nuhf;fk; ngw;Wf;nfhz;lJ &gha;
20000.00 Mf Nkw;fz;l tpgug;gb fpuaj;njhif &gha;
2>80>000.00 ,uz;L yl;rj;J vz;gjhapuk; vdf;F
nry;yhfptpl;lgbahy; fpiuar;nrhj;ijAk; ,d;Nw
jq;fSf;Fk; RthjPdk; nfhLj;J jhq;fSk; RthjPdk;
mile;J nfhz;lgbahy; ehsJ Njjp Kjy; Nkw;gb
nrhj;ij fpiua ghj;jpaj;Jld; rh;tRje;jpu
ghj;jpakha; Mz;lDgtpj;Jf;nfhs;thh;fshfTk;….”.
34.From the contents, it is clear that there were debts for the family upon
pronotes and also a Court decree in the suit in O.S.No.635 of 1995 and also for
the benefit of minor children and for development of agriculture. The plaintiff
has not produced any material to dispute or disprove the above recitals.
While so, the fact that the 1st defendant has not been subjected to
cross-examination by other defendants would prove that the above alienations
were made for family necessities and to clear the debts. It is a settled principle
that the plaintiff cannot take advantage of defendants who remained ex-parte,
he has to prove his case on his own stand. The trial Court has not considered
the above facts and relied only on the evidence of P.W.2. A perusal of the
evidence of P.W.2 shows it is not trustworthy, as rightly argued by the
appellant/9th defendant. He deposed as “ehDk; Kjy; gpujpthjpa[k;
rpnefpjh;fs; vd;why; rhpay;y. xnu Ciu nrh;e;jth;fs;
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….vd;id ,t;tHf;fpy; rhl;rp brhy;y thjpjhd; miHj;J te;jhh;. Kjy;
gpujpthjpapd; ez;gh;fs; ahh; vd;W vdf;F bjhpahJ. Mdhy; mtUf;F
bfl;l gHf;fq;fs; ,Ue;jJ vdf;F bjhpa[k;. ,e;j tHf;fpw;F gpwF ehDk;
Kjy; gpujpthjpa[k; ,Jtiu ngrpf;bfhs;stpy;iy…”.
35.From the evidence of P.W.2, it is clear that he has not clearly deposed
as to what kind of bad habits the 1st defendant was into, and the sale
consideration of the above sale deeds being a huge one during those years
would not be met for illegal activities. Hence, the plaintiff has not proved his
case that the alienations were made for personal activities of the 1st defendant
until disproves the contents contained in Ex.A.3 and Ex.A.4 which shows the
pronote debts and decree amount in the original suit. Ex.A3 and Ex.A.4 are
registered documents, which were registered before the Sub Registrar at the
time of registration. So, the contents of the documents would be deemed
genuine until the same is disproved. In this case, the plaintiff has not disproved
the contents of Ex.A.3 and Ex.A.4.
36.This Court held that a Kartha/Father Manager is having enormous
powers of alienation with regard to Hindu Joint Family either for discharging
his own debt or for the benefit of the estate and the same is binding upon other
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members of Hindu Joint Family as held in Mariammal and Subbuthai in
S.A(MD)No.255 of 2010 reported in 2013 (5) CTC 49, this Court held in
paragraph Nos.53 and 55 as follows:
“53.In (1996) 8 Supreme Court Cases 54
(Sri Narayan Bal and others Vs. Sridhar Sutar and
others), the Hon’ble Apex Court has held that
“Kartha of Hindu joint family is having unfettered
right of alienation of joint family property and the
same is binding upon other members.”
55. From the conjoint reading of the decisions
referred to supra, it is made clear that a
kartha/father manager is having enormous powers
of alienation with regard to Hindu Joint family
either for discharging his own debt or for the benefit
of the estate and the same is binding upon other
members of Hindu joint family. Further even if a
sale is effected by a Manager without legal
necessity, the same is nothing but voidable and not
void.”
The 1st defendant, being the head of his family consisting of the plaintiff
and one daughter, Lakshmi Praba, has enormous powers of alienation with
regard to the Hindu Joint Family either for discharging his own debt or for the
benefit of the estate and the same is binding upon other members of the
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Hindu Joint Family. The trial Court has not considered all these aspects and
concluded only based on oral evidence of P.W.2, which is not sustainable in the
eye of law.
37.Next, the appellant’s case is that the suit is hit by partial partition.
It is an admitted fact that, as per Ex.A.1, the plaintiff’s father obtained 10 acres
81 cents in suit survey numbers. The suit property is only to the extent of
3 acres 81 cents. Even as per Ex.A2, the plaintiff’s sister Lakshmi Praba was
given 2 acres 50 cents, and the remaining extent of 4 acres 50 cents is
available. The plaintiff has not added the said portion by stating that it was
under litigation and he was given money towards his share. But the plaintiff
has not produced any material to show which suits are pending and have ended
to what extent of the property. But, he clearly admitted in his evidence that
“kPjp 4 Vf;fh; 11 brz;l; gw;wp ,t;tHf;fpy; vJt[k; Fwpg;gplg;gltpy;iy.
nkw;fz;l 4 Vf;fh; 11 brz;l;oy; VnjDk; xU gFjpnah my;yJ
KGtJkhfnth tpwg;id bra;ag;gl;ljh vd;gJ gw;wp vdf;F bjhpahJ.
me;j 4 Vf;fh; 11 brz;l;I bghWj;J jhth vJt[k; ,y;iy…..”. So, it is
clear that there are 4 acres 11 cents available for the plaintiff and the
1st defendant. Though the learned counsel for the 1st respondent/plaintiff has
submitted about the march of law regarding partial partition by relying on the
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ruling 2022 SCC Online SC 240 and 2026 (1) CTC 314, it is a settled
principle that every case has to be dealt with according to the facts and
circumstances of each case.
38.Even in the ruling in the P.Arunachalam case (2022) 5 CTC 204, it
is clearly observed as follows:
“But, before addressing it, it is necessary to
categorise the situations where issue of partial
partition may arise:
a)Where the co-sharers or co-owners, as the
case may be, do not know about the existence or
availability of properties other than those litigated
upon.
b)Where the plaintiff is in actual physical
possession or in exclusive management of the
partible properties, holding them also for the
benefit of the other co-sharers.
c) Where the plaintiff is not in actual physical
possession of the estate, enjoys it constructively
with the co-sharer in possession, or where the
defendant is in an identical position as the plaintiff
in situation (b).
d)When a suit is laid or defended by an
alienee of a co-sharer or a co-owner.
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In this case, the alienee has defended the suit as partial partition. So, the
argument advanced by the learned counsel for the 1st respondent/plaintiff in
this aspect is not acceptable. The plaintiff himself admitted that there is more
extent available other than the suit property.
39.Further, the plaintiff himself admits that he received money from a
litigant to pass a decree in favour of that litigant in respect of some portion by
admitting the sale deed executed by his father. P.W.1 deposed in his cross
examination that “nfhtpe;juh$; vd;gth; th.rh.M.1y; fz;l brhj;Jf;fs;
Fwpj;J 1k; gpujpjthjpf;F vjpuhf m.t.12/2009 vd;w
tHf;if ,e;ePpjpkd;wj;jpy; jhf;fy; bra;jpUe;jhh; vd;why; rhpjhd;. me;j
tHf;fpy; tf;fPy; brhd;dthW jPh;g;ghiz bra;tjw;F rk;kjk; vd;W
vGjpf;bfhLj;J gzk; bgw;Wf;bfhz;nld; vd;why; rhpjhd;..”. So, the
plaintiff objects to certain sales while admitting certain sales by his father, and
it is not an acceptable one under the legal doctrine “approbate and reprobate”
that the plaintiff cannot simultaneously accept and reject the same transaction
or instrument made by his father/1st defendant. So, the argument of the
appellant/9th defendant that the plaintiff and 1st defendant collusively filed the
suit only to grab money, feeling a raise in the land value cannot be brushed
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aside as there is no substance. Moreover, as per Ex.A.2, there are other
properties available for the enjoyment of the plaintiff and 1st defendant.
The plaintiff has also admitted that he has not added all properties in this
partition suit. So, the suit is hit by partial partition as rightly submitted by the
appellant/9th defendant.
40.The next issue raised by the appellant/9th defendant is that without
setting aside the earlier sale deeds, the plaintiff cannot seek any relief
regarding the property covered under those sale deeds. A careful perusal of the
plaint averment, makes it clear that his father/1st defendant executed sale
deeds dated 24.03.1997, 31.03.1997, 21.11.2002 and 13.02.2009. But the
plaintiff sought relief to declare them as null and void against the sale deeds
dated 24.03.1997, 31.03.1997 and 13.02.2009. The sale deed dated 21.11.2002
was executed in favour of the 6th defendant by the 1st defendant.
The 6th defendant in turn sold the property to defendants 7 and 8 under a sale
deed dated 13.02.2009. The defendants 9 and 10, who are power agents of
defendants 7 and 8, converted them into house plots and sold them to
33 persons. The plaintiff has not sought for cancellation of sale deed dated
21.11.2002. Admittedly, the plaintiff became a major in 2009 and he filed the
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suit and pending suit, he filed an amendment petition in 2013. Even at the time
of filing the amendment petition in 2013, knowing the fact of subsequent
alienation to defendants 11 to 16, the plaintiff has not sought any relief
regarding the sale deed dated 21.11.2002. Therefore, it is very clear that the
suit in respect of the sale deed dated 21.11.2002 is barred by limitation as
rightly submitted by the appellant’s counsel relying on decision in
Sankaranarayan case reported in 1956 (2) MLJ 411, Balu @ Balakrishnan
case reported in 2001(3) MLJ 15 and judgment of this Court passed in
A.S.No.183 of 2016 dated 19.04.2023.
41.There is no strong contra case or argument advanced by the 1st
respondent/plaintiff’s counsel except the plea that the omission to seek a
prayer regarding sale deed dated 21.11.2002 by a typographical omission is not
fatal to the suit. This argument has no merit. Therefore, this Court is of the
considered opinion and holds that the suit is a barred one until the sale deed
dated 21.11.2002 is challenged, then the sale deed dated 13.02.2009.
Because the plaintiff became major in 2009 and though he omitted to seek
relief against the sale on 21.11.2002, he has not cured the same while filing
amendment petition in 2013, even till this date as rightly argued by the learned
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counsel for the appellant/9th defendant. As regards other sales dated
24.03.1997 and 31.03.1997, the plaintiff has failed to prove that the sales were
made for illegal or immoral activities of the 1st defendant and not for the
benefit of family, while the contents of those sale deeds clearly show that for
clearing debts, including Court decree amount and for the benefit of family and
minor, the sales were done.
42.The next point, is whether the suit is bad for non joinder of necessary
parties namely the plaintiff’s sister Lakshmi Praba and subsequent purchasers.
It is the definite case of the appellant/9th defendant that the plaintiff has not
accepted the Ex.A.2 partition deed executed in favour of his sister. Whereas the
plaintiff submitted that he admits the Ex.A.2 partition. But a perusal of the
plaint averments reveals he clearly pleaded that “thjp ,stuhfapUe;j nghJ
Vw;gl;l 17.4.1998 njjpa ghfg;gphptid gj;jpuj;jpy; fz;ltptuq;fs;
thjpiaf; fl;Lg;gLj;jhJ….” The evidence of P.W.1 in re-examination
clearly shows as “th.rh.M.2 ghfg;gphptpidg; gj;jpuj;ij cz;ik vd;W
ehd; Vw;Wf;bfhs;stpy;iy th.rh.m.2 I bjhlh;e;J Vw;gl;l th.rh.M.2
Kjy; th.rh.M.4 fpiuag; gj;jpuq;fSk; cz;ikahdit my;y vd;gij
fhl;Ltjw;fhf jhf;fy; bra;jpUf;fpnwd;….”. The trial Court, after contest
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held in issue No.1 that the Ex.A.2 partition deed will not bind the plaintiff.
The plaintiff has not objected to the same in the appeal, but at the time of
argument he admits the said partition, which is not acceptable in law.
The defendants 9 and 10 have clearly stated in their statement that on
execution of power of attorney by the defendants 7 and 9, they have sorted the
property into house plots and sold 33 plots to various purchasers. The plaintiff
has not taken steps to add those subsequent purchasers while impleading a few
subsequent purchasers, who are in possession of the same. Therefore, this
Court holds that the suit is bad for non-joinder of necessary parties.
43.The last one is the law of equity submitted by the appellant/9th
defendant. There is no dispute that the father of the plaintiff/1st defendant has
got 10 acres 42 cents under Ex.A.1 partition deed from properties of his Hindu
Undivided Family. The suit is laid only for 3 acres 81 cents. Even for the sake
of argument, if the plaintiff’s sister was given 2 acres 50 cents, still there were
7 acres 92 cents available in the suit survey number for the family consisting of
the 1st defendant and the plaintiff. While applying equity, the plaintiff and the
1st defendant are entitled to 3 acres 96 cents each in the suit survey number.
Even if the plaintiff is entitled to half share from the family property, the suit
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property comes below half share of the father/1st defendant and can be allotted
to him, which in turn can be allotted to alienees under the Law of Equity as
rightly argued by the learned appellant’s counsel relying on Adivi Naidu case
reported in 1995 (6) SCC 150. There is nothing put forth by the 1st
respondent/plaintiff’s side against the said principle of Law of Equity.
44.Therefore, from the above facts and circumstances, the trial Court has
not properly appreciated the evidence and has come to the conclusion that the
alienations were made by the 1st defendant only for his illegal activity of
playing cards and, based on the said conclusion, decreed the suit. The finding
of the trial court is not sustainable in law. The trial Court has not considered
and discussed other aspects while answering other issues, but simply answered
the 1st issue and decided in favour of the plaintiff. The trial Court erred grave
mistake in deciding the case while rival contentions were put forth upon
immovable properties. Therefore, this Court holds that the judgment and decree
of the trial Court are vitiated by misconception and the same warrant
interference and hence, the same has to be set aside. Thus, this appeal
succeeds. The points are answered accordingly.
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45.In the result, this Appeal Suit is allowed. The judgment and decree
dated 06.03.2020 passed in O.S.No.55 of 2011 on the file of the Additional
District Court (Fast Track Court), Palani are set aside and the suit in
O.S.No.55 of 2011 on the file of the Additional District Court (Fast Track
Court), Palani is dismissed. No costs. Consequently, the connected Civil
Miscellaneous Petitions are closed.
29.07.2026
NCC : Yes / No
Internet : Yes / No
Index : Yes / No
VSD
To
1.The Additional District Court (FTC),
Palani.
2.The Record Keeper,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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P.VADAMALAI, J.
VSD
Pre-Delivery Judgment made in
A.S(MD)No.128 of 2020
and
C.M.P(MD)Nos.4567 of 2020 and 6804 of 2021
29.07.2026
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