Anjalai and 6 others vs Arumuga Chettiar and another

The appeal is directed against the judgment of the learned Subordinate Judge, Cuddalore in A.S.No.136 of 1985 in confirming that of the

learned District Munsif, Panruti in O.S. No.351 of 1982. The plaintiffs in the suit are the appellants in the above second appeal.

The plaintiff has filed the suit for declaration of the plaintiffs title to the suit property, restraining the 2nd defendant from interfering with the

plaintiffs'' enjoyment of the suit property. According to the plaintiffs, the suit property and three other items originally belonged to one Peria Pillai

Ammal and after her death, about 45 years back, her daughter, Jagadambal Ammal, inherited them and enjoyed them in her own right absolutely.

The said Peria Pillai Ammal while she was alive, and at the time of her death expressed a wish that the properties, after the lifetime of Jagadambal,

should go to her son''s family to be enjoyed by the heirs of her son absolutely."" Therefore, in keeping with the wish of Perial Pillai Ammal, her

daughter, Jagadambal Ammal, executed a registered settlement deed in favour of her brother''s wife Kullammal, as guardian of her minor Children,

the plaintiff and his deceased brother, Sabbarayan. The terms of the said settlement deed dated 22.7.1937 are that Kullammal should function as

guardian of her minor children, above named, without power of alienation and on their attaining majority the properties should be handed over to

them to be enjoyed by them absolutely as per the wish of their grandmother Peria Pillai Ammal. Kullammal took possession of the 4 items of

properties and was managing as such peacefully and prudently.'' Kullammal died about 15 years back prior to the filing of the suit and Subbarayan,

brother of the plaintiff was also died a year back unmarried and issueless. Therefore, the plaintiff alone was the sole owner of the properties

mentioned in the settlement deed dated 22.7.1937.(ExA5). It was further contended that Kullammal, during her lifetime, and the plaintiff, after her

death were paying kist for the properties and were enjoying the properties and were dealing with them in their own right. While so, on 15.12.1980,

the second defendant was giving out in the village that the first defendant had sold the suit property of an extent of 0.75 cents of Punja land to him

and that he wants to construct a thatched house in the suit property. The first defendant had never asserted any right over the suit property. He

cannot have any right to any of the properties in view of the long enjoyment of the same for over 45 years by Jagadambal, Kullammal and the

plaintiff. The 2nd defendant attempts to enter the suit property forcibly in denial of the plaintiffs right. Therefore, the plaintiff was entitled to restrain

the defendants. There was a fire accident in the village and the plaintiff''s thatched house was gutted to ashes. Along with it valuable documents,

kist receipts, grains etc. were also reduced to ashes. Therefore, he obtained a registration copy of the settlement deed dated 22.7.1937 and has

obtained two affidavits of respectable villagers to show his possession of the settlement properties.

In the written statement filed by the first defendant, the claim of the plaintiff to be the owner of the property was denied. The possession as

claimed by the plaintiff was denied. The claim that/the suit property and three items originally belonged to one Periya Pillai Ammal and after her

death her daughter Jagadambal Ammal had Inherited them, that she enjoyed them in her own right absolutely were also denied as false. He further

denied the allegation that ''Peria Pillai Ammal while she was alive expressed the desire that the suit property and other properties should be

enjoyed by her sons. The execution of the settlement deed was also denied. The due attestation as well as the validity of the execution were also

denied. According to the first defendant, the suit itself had been filed at the instigation of the sons and daughters of Jagadambal Ammal. One of the

daughters of Jagadambal Ammal had issued a notice to the defendant on 29.10.1980 claiming the very same property as that of her property and

claimed that she was in possession and enjoyment of the same. The first defendant issued a reply and after issue of the reply, knowing fully well

that Chinnammal has no right, at her instigation and at the instigation of her brothers, the present vexatious suit has been filed. It is further

contended that the plaintiff was suppressing the true fact and the property originally belonged to Narayanaswamy Padayachi, father of the plaintiff.

He had executed a sale deed in favour of Kuppu Chettiar, grand-father of the 1st defendant on 1.4.1926. Eversince, the purchase, Kuppusamy

Chettiar and later his son Palanisamy Chettiar and the first defendant continued in possession. There was a dispute between Palaniswamy Chettiar

and plaintiffs'' parent in respect of the property and hence plaintiff''s parents for themselves and on-behalf of the other sons including the plaintiff

executed a registered release deed on 27.1.1942 in respect of the property. Even at the time, the plaintiff was aged about 12 years and as early as

1942, the parents of the plaintiff had categorically admitted that the suit property belongs to Palanisamy Chettiar and has also admitted his

possession. After the death of Kuppusamy Chettiar, his sons including the first respondent were in possession and enjoyment of the suit property

and paying kist. Subsequently, by virtue of a registered partition deed dated 27.3.1960, the property was allotted to the share of the first

defendant. He has also ''received patta books and by being in possession for more than the statutory period, 1st defendant has prescribed title by

adverse possession also. The first defendant has sold only 7 3/4 cents in S.No.253/1 out of Ac1. 51 to 2nd defendant under a registered sale deed

dated 10.12.1980. and from the date of sale 2nd defendant alone was in possession and enjoyment of the suit property.

On consideration of pleadings and evidence, the Trial Court held that the crucial issue to be decided in the suit was the validity of the release

deed and the plaintiff not having sought for to set aside the said document, was not entitled to maintain the suit. On appeal, also the appellate Court

agreed with the finding of the trial Court and held that the plaintiff cannot seek for the relief as prayed for in the suit without seeking to set aside the

release deed.

Learned counsel for the appellants mainly contends that the document being one void in law, need not be set aside . The alienation by the

guardian without permission of the Court was void and therefore, there was no obligation on the part of the plaintiffs to seek for setting aside the

document and therefore the ground on which the suit was rejected by both the courts below cannot be sustained.

In support of his submission that there was no necessity to pray for setting aside the release deed, reliance is placed on the Judgment in.

N.S.Ramaswami, J. reported in V. Nataraja Iyer and Others Vs. Arunachalam and Others, . In that case, learned Judge held that with reference to

joint family property, as regards the alienation made by manager, when the minor coparceners question the alienation, they would not be obliged to

pray for setting aside alienation. Learned counsel also refers the judgment of Full Bench of this Court dated in the very same judgment in

Kandaswami Udayan v. Annamalai Pillai, 51 L.W. 11.

7 . Per contra, Mr. G. Rajagopalan, learned counsel appearing for the respondents contends that the transaction is not a void one but only a

voidable one, having regard to the Judgment of the Supreme Court reported in Divyadip Singh and others v. Ram Cachan Mishra and others, JT

1997 (1) S.C. 504. Reliance is placed on the observation that when the natural guardian without the previous permission of the Court had

alienated the property, it was voidable at the instance of the minor. Therefore, according to the learned counsel, the sale as well as the release

being only voidable and not void, there was an obligation on the part of the plaintiff to have prayed, for to set aside the earlier transaction. He

would also rely upon the judgment of the Full Bench of this Court reported in Mir Ghulam Hussain Sahib v. Ayesha Bibi and others, AIR 1941

Mad. 481 wherein the Full Bench held that the transfer by guardian appointed by Court without. Court sanction is voidable and not void. It is valid

unless set aside at the instance of minors, within limitation.

Reference is also made to another judgment of this Court reported in Sankaranarayana Pillai and Another Vs. Kandasamia Pillai, . The Full

Bench held in that case that when the minor was co-nominee a party to a sale deed or other document of alienation by a guardian which he seeks

to set aside, it is not enough for him to merely sue for possession but he must have also prayed for cancellation of the document and pay due Court

fee for the said prayer,

Therefore having regard to the declaration of the law by the Supreme Court holding that the transaction of the present nature was only voidable

and not void, the Courts below have rightly held that the plaintiffs ought to have prayed for setting aside the release in favour of the defendants.

Learned counsel for the appellants also raised the contention that the property dealt with under Ex B1 being the sale deed in favour of

Kuppuswamy Chettiar was not the same as the suit property. According to him, the boundary recital in the document and the plaint schedule will

show that the property in Ex B1 was totally different. In answering this submission, the learned counsel for the respondent points out that through

out the proceedings before the lower Courts both parties have proceeded only on the basis that both are the same properties. He would refer to

the averments contained in paragraph 5 of the written statement to the effect that the sale deed dated 1.4.1926 pertains to the very same suit

property. No reply statement was filed by the plaintiff and the said issue had not been raised by the plaintiff before the Courts below.

Learned counsel for then appellant contends that there was no duty cast upon the plaintiff to file a reply statement and he would rely on the

judgment of this Court reported in Veerasekhara Varmarayar Vs. Amirthavalliammal and Others, . There is no quarrel over the issue that the

plaintiff was not obliged to file a reply statement. But having regard to a substantial issue raised in the written statement to the effect that the

property dealt with under the sale deed dated 1.4.1926 was the very same property, there was no attempt on the part of the plaintiff to dispute the

said contention. Further, a perusal of the Judgment of the Courts below does not disclose any such issue having been raised before the Court. A

reading of the grounds of the first appeal before the lower appellate Court would also show that no such point was ever raised before the appellate

Court. Therefore, the plaintiff cannot be permitted to raise the said factual issue for the first time before this Court u/s 100, C.P.C.

Even otherwise, a perusal of exhibits filed on the side of the defendants show that kist receipts have been filed right from the year 1966 and not

a single document had been filed on the side of the plaintiff to show the possession of the property. It is relevant to note that the defendant had also

raised a plea of title by adverse possession. It is true that the question of adverse possession was not gone into by the courts below in view of their

finding that the plaintiff ought to have filed a suit for setting aside the release deed. The issue of adverse possession is pointed out only to emphasis

that the plaintiffs appear to have ventured in a speculative exercise.

Having regard to all the above said circumstances, I do not find any reason to interfere with findings of the Courts below and hence the above

appeal is dismissed. No costs.