Muthusamy Udayar vs Kanaka Padayachi and Others

M. Jaichandren, J.—This Second Appeal has been preferred against the judgment and decree, dated 24.09.1991, made in A.S. No. 63 of

1991, on the file of the Principal District Judge, Salem, reversing the Judgment and decree, dated 12.07.1990, made in O.S. No. 1611 of 1986,

on the file of the Principal District Munsif Court, Salem.

The appellant herein was the plaintiff in the suit, in O.S. No. 1611 of 1986, which had been filed praying for a permanent injunction against the

defendants therein, restraining them from interfering with the plaintiff''s peaceful possession and occupation of the suit property.

The case of the plaintiff in the suit in O.S. No. 1611 of 1986, who is the appellant in the present Second Appeal, is that the first and the second

defendants in the suit had sold the property, consisting of 31-1/3 cents, out of a total extent of 1.88 acres, in Survey No. 56/3, Somapatti Village,

Salem District. The first defendant is the father of the second defendant, who is said to have been a minor at the time of the sale of the property to

the plaintiff. The suit property had been sold to the plaintiff by the first and the second defendants, by way of a Sale Deed, dated 17.12.1969,

marked as Exhibit A-1. The plaintiff had marked certain receipts, as Exhibits A-2 to A-12, to show that the plaintiff, who is the appellant in the

present Second Appeal, was in possession of the suit property. The plaintiff had also claimed that the relevant revenue records were in the name of

the plaintiff. He had also marked the Chitta as Exhibit A-17. Exhibits A-18 to A-23 are the adangal extracts. The plaintiff was cultivating tapioca in

the land, with the loan availed from the local co-operative Bank. He had also planted coconut trees in the land, which is in his possession.

The further case of the plaintiff is that, in spite of the suit property having been sold to the plaintiff by the defendants 1 and 2, by way of a sale

deed, on 17.12.1969, the defendants viz. the first defendant, who is the father of the second defendant, along with the second defendant and the

third defendant, who is the wife of the first defendant, were attempting to encroach upon the suit property, belonging to the plaintiff.

During the trial of the suit, the first defendant had remained exparte. The second defendant had filed a written statement, which was adopted by

his mother, the third defendant.

The main averment made by the second defendant in his written statement is that, when the sale of the suit property was made, by way of a Sale

Deed, dated 17.12.1969, to the plaintiff, the second defendant was a minor. Since the suit property was part of the ancestral Joint family property,

belonging to the defendants, the sale made in favour of the plaintiff by the first defendant, the father of the second defendant, does not bind the

second defendant. Further, there was no necessity to sell the property to the plaintiff.

The defendants in the suit in O.S. No. 1611 of 1986, had denied the claims made by the plaintiff stating that the sale of the suit property, by way

of the sale deed, dated 17.12.1969, would not bind the second and the third defendants. There was no necessity for the family to sell the property

in question. The second defendant, who is the owner of the land adjacent to the suit property, is also a joint owner of the suit property. Since the

suit property is a joint family property belonging to all the defendants, the first defendant was not entitled to sell the suit property to the plaintiff.

Further, the third defendant has a claim on the suit property for her maintenance. There was no partition of the suit property between the first and

second defendants. Since the second defendant is a joint owner of the suit property, the plaintiff cannot pray for a decree of permanent injunction

against the co-owner.

In view of the contentions raised on behalf of the plaintiff, as well as the defendants, the trial Court had framed the following issues for

consideration:

(1) Whether the plaintiff is entitled to the relief of permanent injunction, as prayed for by him?

(2) What other reliefs the plaintiff is entitled to?

The trial Court, by its judgment and decree, dated 12.07.1990, had decreed the suit in favour of the plaintiff holding that the plaintiff is entitled to

the reliefs prayed for in the suit.

The main reason cited by the Trial Court, in decreeing the suit in favour of the plaintiff, is that the second defendant, who was a minor at the

time of the sale of suit property, on 17.12.1969, had not contested the sale, within three years of his attaining majority. Though the suit property

sold to the plaintiff is a part of the joint family property, belonging to both the first and the second defendants, the second defendant ought to have

contested the sale, within three years from the date of his attaining majority, as the sale, was not void and that it was only voidable, at the option of

the second defendant. It was also noted that the third defendant had filed a suit for maintenance against the first defendant in O.S. No. 459 of

1969, whereby a charge had been created on the 1/6th share of the property of the first defendant, for the maintenance of the third defendant.

Further, a sum of Rs. 30/- per month was to be paid, as maintenance in favour of the third defendant from 1.2.1968. The suit had been decreed,

on 21.03.1970. However, it has also been pointed out that the suit property, in O.S. No. 459 of 1969, did not include the property, which is the

subject matter of the suit, in O.S. No. 1611 of 1986.

The Trial Court had further found that the defendants in the suit had not shown sufficient evidence to substantiate their claim that the suit

property had been in their joint enjoyment. The trial Court had also found that the second defendant had not taken the necessary steps to set aside

the sale of the suit property in favour of the plaintiff, either within twelve years from the date of the sale or within three years from the date of his

attaining majority. Further from the oral evidence adduced by D.W.1, it has been found that he had not been cultivating the land in question and

that he is not aware of the boundaries of the suit property.

Aggrieved by the judgment and decree of the trial Court, dated 12.07.1990, made in O.S. No. 1611 of 1986, the second defendant in the

suit, had filed an appeal in A.S. No. 63 of 1991, on the file of Principal District Court, Salem.

The first appellate Court had framed the following points for consideration:

Whether the sale obtained by the first respondent/plaintiff would bind the appellants?

Whether the first respondent/plaintiff is entitled to the relief of permanent injunction, as prayed for?

The first Appellate Court had reversed the judgment and decree of the Trial Court, by its Judgment and decree, dated 24.09.1991, made in

A.S. No. 63 of 1991, by holding that the first appellant, in the first appellate Court viz. the second defendant in the suit was a minor. His share in

the joint family property has also been sold to the plaintiff, by way of a Sale Deed, dated 17.12.1969, marked as Exhibit A-1. Since the second

defendant was a minor at the time of the sale of his property, which is not binding on him, it was open to the plaintiff to file a suit for partition and

that he could not have filed a suit for permanent injunction.

The first appellate Court had also held that in view of the judgment and decree made in O.S. No. 459 of 1969 and in view of the fact that the

minor''s property had been sold, the sale of the suit property in favour of the plaintiff is void and not voidable. Therefore, the plaintiff is not entitled

for a permanent injunction, as prayed for by him.

In such circumstances, the First Appellate Court had reversed the judgment and decree of the Trial Court, dated 12.07.1990, made in O.S.

No. 1611 of 1986.

Being aggrieved by the judgment and decree of the first appellate Court, dated 24.9.1991, made in A.S. No. 63 of 1991, the plaintiff had filed

the present second appeal in S.A. No. 1139 of 1992.

This Court had admitted the second appeal on the following substantial questions of law:

(1) Whether the Lower Appellate Judge is right in holding that the 2nd respondent is having 1/6th share in the suit property as declared by the

Court below in the earlier suit O.S. 459 of 1969 and consequently is deemed to be in joint possession especially under the circumstances that the

present suit property was not made the subject-matter of the earlier suit and that therefore, whether the finding of the Lower Appellate Court in

subscribing the title and consequent possession in the suit property is correct and if so, would it not amount to the denial of the title of the appellant

herein acquired by means of an out right purchase under Ex.A1?

(2) Whether the Court below is correct in probing the title of the appellant herein in a suit for the relief of perpetual injunction by ignoring the

question as to whether the plaintiff is in actual possession and enjoyment of the suit property, viz., Exs.A-18 to A-23?

The learned Counsel appearing on behalf of the appellant had submitted that the judgment and decree of the first appellate Court, dated

24.09.1991, made in A.S. No. 63 of 1991, is contrary to law. The First Appellate Court has reversed the well considered judgment of the trial

Court, without any basis. The First Appellate Court has failed to note that the first respondent had sold the suit property, by a Sale Deed, dated

17.12.1969, and that it is binding on the second respondent herein, who was the second defendant in the suit, in O.S. No. 1611 of 1986.

The learned Counsel appearing on behalf of the appellant had further submitted that, having admitted the sale in favour of the appellant, it

would not be open to the respondents to contest the same by stating that the Sale Deed was void in law. The preliminary Decree passed in O.S.

No. 459 of 1969, will not confer any title on the second respondent. Further, the suit property, in O.S. No. 459 1969, is not the suit property in

question, in O.S. No. 1611 of 1986.

The learned Counsel appearing on behalf of the appellant had further submitted that the First Appellate Court had failed to note that the rights

conferred on the second and the third respondents, under the decree, in O.S. No. 459 of 1969, had been given up, in O.S. No. 1613 of 1986,

and therefore, they are estopped from making contrary claims in O.S. No. 1611 of 1986. Further, since the second respondent had not challenged

the sale in favour of the appellant, within three years after attaining majority, it would not be open to him to put forth his contention that the sale

made in favour of the appellant is void.

The learned Counsel appearing on behalf of the appellant has relied on the following decisions, reported in Raj Kumar Raghubanchmani

Prasad Narain Singh Vs. Ambica Prasad Singh (Dead) by Lawyers and Others, , Vishwambhar and Ors. v. Laxminarayana (Dead) through L.Rs.

and Anr. 2001(3) CTC 316, Madhukar Vishwanath v. Madhao and Ors. 2002 (4) CTC 49, and R. Sridharan, R. Balasundaram alias

Balasubramaniam and R. Narendra Mahesh alias Mahesh Kumar Vs. Ammaniammal and Others, , in support of his contentions that the sale of the

minor''s share in a property is voidable and not void in law and that the minor ought to have challenged the sale, within three years after attaining

majority.

On analysing the rival contentions made on behalf of the appellant and in view of the decisions cited supra, and on a perusal of the records

available, it is seen that the suit property had been sold to the plaintiff, on 17.12.1969. Even though the suit property is a part of the joint family

property, belonging to both the first and the second defendants, the second defendant ought to have contested the sale, within three years from the

date of his attaining majority. Since the second defendant was a minor at the time of the sale of the property by the first defendant, the sale would

only be voidable and not void. Since the second defendant had not chosen to contest the sale, within the period prescribed by law, the sale of the

suit property by the first defendant in favour of the plaintiff, by way of a sale deed, dated 17.12.1969, cannot be disputed at a later stage. Further,

the findings of the trial Court are based on proper appreciation of the evidence available on record.

The trial Court had clearly found that the defendants in the suit had not shown sufficient evidence to substantiate their claim that the suit

property had been in their joint enjoyment. Therefore, the trial Court had rightly decreed the suit in favour of the plaintiff.

In such circumstances, this Court is of the considered view that the judgment and decree of the first appellate Court, dated 24.9.1991, made in

A.S. No. 63 of 1991, is liable to be set aside. Hence, the judgment and decree of the first appellate Court, dated 24.9.1991, made in A.S. No. 63

of 1991, is set aside and the judgment and decree of the trial Court, dated 12.7.1990, made in O.S. No. 1611 of 1986, is restored. Accordingly,

the second appeal stands allowed. No costs.