K. Manohara Selvan vs K. Thavamani and Others

G. Rajasuria, J.—The challenge in this appeal is against the judgment and decree dated 22.09.1989 in O.S. No. 126 of 1986 on the file of

the Sub Court, Nagercoil, in dismissing the suit which was filed by the plaintiff as against the defendants for the following reliefs:

(i) to declare the release deed dated 24.11.1982 as not binding on the plaintiff.

(ii) to set aside and cancel the same.

(iii) to order for partition of the suit properties and for allotment of 5/8th share in them and

(iv) for other reliefs.

The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.

Pithily and precisely, the case of the plaintiff as stood exposited from the plaint could be portrayed thus:

(i) Items 1 to 7 of the suit properties were obtained by the plaintiff''s father Kailasa Nadar vide registered partition deed No. 2441 of the year

1959 which emerged between himself and his brother Rethasamy Nadar. Items 8, 9, 11, 12 and 14 to 22 were purchased by the plaintiff''s father

in his name from out of the income derived from the joint family properties. Items 10 and 13 were purchased in the name of the first defendant

from out of the sale proceeds of the joint family properties. As such, the first defendant was the benami of those properties.

(ii) The plaintiff''s father managed the joint family properties till he died on 26.06.1983. Whereupon, the plaintiff became entitled to 5/8th share in

the suit properties. The first defendant being the mother and the second and third defendants being the sisters of the plaintiff are entitled to 1/8th

share each. It so happened during the life time of the plaintiff''s father, that the plaintiff was forced to execute a registered release deed dated

24.11.1982 at the Registrar''s office at Thiruchendur, since they suspected that there was a marriage between himself and one Radhamani of

Nellore at the instance of her relatives, although in reality there was no such marital relationship between the two.

(iii) The plaintiff''s parents and other family members got executed such a sham and nominal release deed relinquishing the plaintiff''s right over the

suit properties in favour of his parents in order to protect the properties from Radhamani. He was not in receipt of a sum of Rs. 5,000/- as found

set out in the said release deed. When the first defendant attempted to sell a portion of the suit properties unilaterally, the plaintiff filed the suit.

Challenging and refuting, denying and disputing the allegations/averments in the plaint, the defendants 1 to 3 filed the written statement which

would run thus:

(i) The plaintiff voluntarily executed the release deed dated 24.11.1982 for valuable consideration. As such, the plaintiff had no right over the suit

properties during the life time of the said Kailasa Nadar. After the death of Kailasa Nadar, the plaintiff and the defendants became entitled to equal

shares except relating to item Nos. 10 and 13 which are the self-acquired properties of the first defendant.

(ii) The plaintiff and the defendants are entitled to participate in the management and administration of the temple and the share in the garden land of

38 1/2 cents comprised in S. No. 455/2 measuring 10 cents and in S. No. 415 measuring 67 cents. One other item of the property measuring 10

cents in Kanyakumari village is standing in the name of the husband of the first defendant. In item No. 17, an extent of two cents of land, was sold

to discharge the debts. The plaintiff is entitled to only 1/4 share in the suit items. The suit is barred by limitation. Accordingly, the defendants prayed

for the dismissal of the suit.

The trial Court framed as many as six issues. During trial on the side of the plaintiff, the plaintiff examined himself as P.W.1 along with P.W.2 to

P.W.4 and Exs.A.1 to A.4 were marked and on the side of the defendants the first defendant examined herself as D.W.1 and Exs.B.1 to B.4 were

marked.

Ultimately, the trial Court decreed the suit relating to the suit properties except item Nos.10 and 13, by declaring the plaintiff''s 1/4th share in

those particular items and by ordering consequential partition by metes and bounds.

Being aggrieved by and dissatisfied with, the judgment and decree of the trial Court, this appeal has been filed based on the following main

grounds among others:

The trial Court failed to hold that the plaintiff is entitled to 5/8th share in all the items of the suit properties including item Nos.10 and 13. The trial

Court failed to note that Ex.A.1 is not a true and valid document and that it was not supported by consideration also. The trial Court was wrong in

holding that the suit was barred by limitation. Accordingly, the appellant/plaintiff prayed for modifying the judgment and decree of the trial Court in

commensurate with the prayer of the plaintiff in the plaint.

During the pendency of this appeal, M.P. No. 1 of 2007 was filed under Order 41 Rule 27 read with Section 151 of the CPC for reception of

following documents as additional documents:

Sl. No. Date Documents

11.06.1992 Sale deed executed by R1, R2 and R3

in favour of Harikrishna Perumal.

18.11.1994 Sale deed executed by R1 in favour

of Maria Syril.

24.01.1996 Settlement deed executed by R1 in

favour of Maria Syril.

24.01.1996 Settlement deed executed by R1 in

favour of Kalaimathi

24.01.1996 Settlement deed executed by R1 in

favour of Ahila.

The contention of the plaintiff is that during the pendency of the suit, certain items of properties were transferred by the first respondent/first

defendant as detailed above. As per the tabulation set out supra, the first respondent/first defendant sold in favour of a third party as per sale deed

dated 11.06.1992, some property. The first respondent/first defendant also executed a sale deed dated 18.11.1994 in favour of Maria Syril. The

first respondent/first defendant executed three settlement deeds one in favour of Mariya Syril and another in favour of the third defendant and yet

one other in favour of the second defendant.

The learned Counsel for the defendants would contend that those deeds are totally irrelevant as two sale deeds are not relating to the suit

properties, but different properties and that even the first defendant was not aware of it and that settlement deeds are relating to the first

defendant''s own property and hence, she settled them as per those settlement deeds.

Here, the plaintiff simply wants to rely on the recitals in the sale deed dated 11.06.1992 relating to some compromise between the plaintiff and

the defendants and to develop his argument that Ex. A.1, therefore should be taken as an invalid document. The plaintiff also wants to highlight that

the defendants effected transfers of some of the suit properties.

The learned Counsel for the defendants would submit that those three settlement deeds were executed by the first defendant in respect of her

exclusive properties and such documents in no way would enure to the benefit of the plaintiff to contend that there was a compromise.

The learned Counsel for the plaintiff would submit that the recitals in the sale deed would show that there was a compromise between the

plaintiff and the defendants and that thereupon, the sale deed was executed by the defendants. Whereas the learned Counsel for the defendants

would oppose such documents being filed as according to them, those documents are not relevant for deciding this appeal.

Be that as it may, by way of giving due opportunity to argue on those documents also, M.P. No. 1 of 2007 is allowed and the documents

therein is ordered to be marked in continuance of the existing exhibits as Exs.A.5 to A.9 respectively. I make it clear that marking of such

documents would not amount to proving them or upholding the plea of the plaintiff.

The points for consideration are:

(i) Whether the release deed dated 24.11.1982 is a sham and nominal document and liable to be set aside and cancelled? If so, what should be the

share of the plaintiff?

(ii) Whether the suit item Nos.10 to 13 are to be subjected to partition or not?

(iii) Whether there is any infirmity in the judgment of the trial Court?

All the points are taken together for discussion as they are interlinked and interwoven with one another.

Heard both sides in entirety.

The whole kit and caboodle of the facts and figures placed before the trial Court as well as before this Court, would clearly demonstrate that

the plaintiff and the defendants are at logger heads consequent upon the apple of discard which arose relating to the respective quantum of shares

to be allotted while partitioning the suit properties.

The learned Counsel for the plaintiff placing reliance on Ex.A.1, the certified copy of the release deed dated 24.11.1982, would develop his

argument that such arrangement was only for the purpose of protecting the family property from his alleged wife Radhamani. It is therefore just and

necessary to look into the recitals in Ex.A.1 (Ex.B.3, is the original of Ex.A.1). At the time of executing the release deed, the plaintiff was twenty

five years old and he relinquished his right over the ancestral properties as well as the self-acquired properties of his parents on receipt of a sum of

Rs. 5,000/- as consideration. The suit was filed during the year 1986 so to say, three years after the execution of such release deed and obviously,

it is barred by limitation and the trial Court correctly gave a finding to that effect.

It is not the case of the plaintiff that he came to know about such deed only belatedly. His case is that he executed the release deed, because

he was forced to execute it. In the plaint, he has not set out in what way, the said deed was intended to protect the family properties.

However, in his deposition as P.W.1, he would depose as though he was compelled to marry one Radhamani as against his will by the parents

of Radhamani, whereas P.W.1''s family members were all against it and that for the purpose of protecting the family properties from the said

Radhamani, such release deed was obtained from P.W.1. If so, it is not known as to why he should attest Ex.A.3, the sale deed dated

02.06.1984, executed by the first defendant in favour of the third party. The recitals in Ex.A.3 would demonstrate that the first defendant

Thavamani as the one who inherited the properties from her husband, the deceased Kailasa Nadar, sold it in favour of a third party namely,

Nagammal. The recitals in Ex.A.3 would convey the idea that she had inherited the properties from her husband and to such a sale deed, the

plaintiff attested it as one of the attesting witnesses.

However, in Ex.A.2, both the first defendant and the plaintiff joined together and executed a made over deed relating to the mortgage which

was in favour of the deceased Kailasa Nadar. Ex.A.3, the sale deed and the fact of the first defendant having attested it as an attesting witness

outweigh Ex.A.2 which is only a made over deed. Ex.A.4 is the record of the Legal Aid which would speak against the interest of P.W.1, as

correctly discussed by the trial Court.

The onus of proof is on the plaintiff to prove that Ex.A.1 (Ex.B.3, the original) was not a document intended to be acted upon. But, the

deposition of D.W.1 coupled with the documents and the averments in the plaint, would all clearly highlight that the plaintiff got married of his own

accord and thereupon, there was some disagreement between P.W.1 and his parents; consequently, separation took place and thereupon, the said

release deed Ex.A.1, emerged.

It is not for the Court to take a unilateral decision of its own accord, when the parties had voluntarily brought about such a release deed. It has

to be seen as to whether the plaintiff at the time of executing the release deed, executed it voluntarily without any coercion or fraud. Here, even

coercion or fraud has not been pleaded, but the plaintiff pleaded as though he and his parents colluded together and brought the release deed

purely for the purpose of keeping the properties away from the reach of Radhamani. But, D.W.1, the mother of the plaintiff, would torpedo such a

plea of the plaintiff by contending that for consideration of Rs. 5,000/-, the said release deed emerged voluntarily.

Even after execution of such a deed, the plaintiff for the purpose of keeping himself virtually away from the family of his parents, attested

Ex.A.3 also.

At this juncture, I would like to recollect a famous maxim ""in pari delicto potior est conditio possidentis.

The Indian Courts followed it and in catena of decisions, it has been held that it could be a shield and not a sword.

Here, according to the plaintiff, such illegal document, Ex.A.1 was created purely for the purpose of keeping his wife Radhamani away from

claiming right over the properties. The question arises as to whether he himself could put forth such a plea before the Court and get a favourable

order in his favour. The answer at once is an emphatic ''No''. Furthermore, D.W.1, the mother would deny the case of the plaintiff in toto.

By way of adding fuel to the fire, the plaintiff is not having consistent plea relating to Ex.A.1 (Ex.B.3, the original). The trial Court at paragraph

No. 16 of its judgment, correctly highlighted that before the Legal Aid, the plaintiff admitted that on several instalments, he received Rs. 5,000/-

under Ex.A.1. Hence, in such a case, after voluntarily relinquishing his right in the properties under Ex.A.1, he cannot now veer round and take a

plea quite antithetical to what he committed in black and white in Ex.A.1 and contend as though he as a co-sharer or co-parcener of his father, is

entitled to 1/2 share and he is entitled to 1/4th share in the remaining 1/2 share which belonged to his deceased father along with his mother and

two sisters.

P.W.1 himself would admit that he has not divorced Radhamani, but he married one other lady and living with her. In such a case, there is no

rhyme or reason in contending that Ex.A.1 emerged to keep the property out of the reach of Radhamani. So far, Radhamani has not made any

claim over the suit properties. If what P.W.1 alleges is true, then the question would arise as to how now the same P.W.1 wants to have more

share in the suit properties. Will not Radhamani now come and take it away. Unless P.W.1 gives to Radhamani, she cannot claim right over his

properties. Right of a wife to claim maintenance is always there, even as on the date of emergence of Ex.A.1 and such release will have no effect

on claim for maintenance as per law. It is a trite proposition of law that if any release or gift is made by the husband to deprive his wife from

claiming maintenance, it would have no effect on the wife in enforcing her right of maintenance over such properties. As such, the plaintiff''s plea is

nothing but a cock and bull story. No more clarification is required to turn down his plea.

The trial Court correctly held that after release of his right, the deceased Kailasa Nadar became the absolute owner of the properties

concerned except item Nos.10 and 13 which were purchased by the mother of the plaintiff. As such, the trial Court appropriately allotted 1/4th

share each in favour of the plaintiff and the defendants 1 to 3. Ex.B.1 is the sale deed dated 04.10.1966 in favour of the first defendant and Ex.B.2

is the certified copy of the sale deed dated 29.05.1974 in favour of the same first defendant. There is nothing to spotlight that such property should

be taken as the property of Kailasa Nadar. Ex.A.1 emerged during the year 1982 whereas Exs.B.1 and B.2 emerged on 04.10.1966 and

29.05.1974 respectively. In Ex.A.1, it has been clearly spelt that he is having no claim either on his father''s or mother''s property and in such a

case, he was aware of the fact that item Nos.10 and 13 belonged to his mother and the trial Court correctly excluded those properties from

partition.

During the pendency of the appeal before this Court, if at all there has been any compromise, it ought to have been informed to this Court in

the way known to law. In fact, the learned Counsel for the first defendant would contend that the first defendant did not execute such a sale deed,

Ex.A.5 at all during the pendency of the appeal. In such a case, this Court only from the available evidence adduced before the trial Court and

which were subjected to cross-examination, could render the judgment.

It is not known as to what prevented the plaintiff to approach this Court to get the said compromise which was allegedly entered into during the

pendency of the suit. Curiously enough the plaintiff in his affidavit for reception of additional evidence, has not stated that actually there had been a

compromise as found recited in Ex.A.5, but hypothetically he would agree that the matter has to be remanded to the trial Court to find out the

alleged compromise which he himself does not say that such a one in reality emerged between rival parties. There are other defendants also apart

from the first defendant in this appeal and they were not parties to Exs.A.5. It is also the specific case of the defendants that Ex.A.5 does not at all

refer to any one of the suit properties. Hence, in such a case, simply the matter cannot be remanded to the trial Court for finding out what should

have been the compromise.

The learned Counsel for the plaintiff unconvincingly would submit that the matter could be remanded to the trial Court for finding out as to what

was the compromise arrived at between the parties as per the version found set out in Ex.A.5. Whereas the learned Counsel for the defendants

would submit that she has not got any instructions as to whether such a sale deed was executed by the defendants and furthermore, the settlement

deeds executed by the first defendant are relating to the suit properties.

The learned Counsel for the defendants would correctly and convincingly highlight that if at all, there is any compromise arrived at between the

parties, it is for the plaintiff to come forward precisely with the memorandum of compromise signed by both sides and according to the defendants,

there was no such compromise entered into between them. In such a case, it is totally untenable on the part of the plaintiff to contend that the

matter has to be remanded back to the trial Court to find out what was the compromise between the parties. If at all, there is any compromise

which the plaintiff entered into with the defendants, he ought to have informed this Court about it for getting it recorded. As such, simply relying on

certain recitals in Ex.A.5, and that too, relating to some other property and not relating to the suit property as contended by the learned Counsel

for the defendants, the plaintiff cannot try to sidetrack the entire issue. This Court has to decide independently from the available evidence

adduced.

In the result, this appeal is dismissed, confirming the judgment and decree dated 22.09.1989 in O.S. No. 126 of 1986 on the file of the Sub

Court, Nagercoil. No costs.