IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 16-04-2008 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1145 of 2007 1.S.Mohan 2.S.Harikrishnan 3.S.Menaka 4.S.Kabilasankari 5.S.Bhuvaneswari 6.S.Manikandan .. Appellants Versus 1.T.C.nagalingam 2.S.Viswanathan (Impleaded 2nd respondent vide order of Court dated 05.12.207, made in M.P.No.2 of 2007 in S.A.No.1145 of 2007) .. Respondents. PRAYER: Appeal against the judgment and decree, dated 28.12.2006, passed in A.S.No.199 of 2006, on the file of the VI Additional Judge, City Civil Court, Chennai, confirming the judgment and decree passed in O.S.No.11578 of 1996, dated 16.12.2005, on the file of the VI Assistant Judge, City Civil Court, Chennai. For Appellants : Mr.S.Sadasharam For Respondents : Mr.B.T.Seshadri J U D G E M E N T This second appeal has been filed, against the judgment and decree, dated 28.12.2006, passed in A.S.No.199 of 2006, on the file of the VI Additional Judge, City Civil Court, Chennai, confirming the judgment and decree passed in O.S.No.11578 of 1996, dated 16.12.2005, on the file of the VI Assistant Judge, City Civil Court, Chennai. 2. For the sake of convenience the parties in the appeal are referred to as they have been arrayed in the suit in O.S.No.11578 of 1996. https://hcservices.ecourts.gov.in/hcservices/ 3. The brief facts of the case as stated in the plaint filed by the plaintiff in O.S.No.11578 of 1996, on the file of the VI Assistant Judge City Civil Court, Chennai are as follows: The plaintiffs and the defendants are the sons and daughters of late T.Chockalingam, who had died intestate at Madras. Late T.Chockalingam, the first, second and third plaintiffs and the first defendant had equally contributed towards the purchase of the house site bearing Door No.57, Thiruvalluvarpettai, Raja Annamalaipuram, Chennai, with an extent of 1203 sq.ft. The said property was purchased in the name of late T.Chockalingam, on 14.12.1957. Though it was purchased in the name of T.Chockalingam, the plaintiffs and the defendants were enjoying the property. The first plaintiff had put up a superstructure in an extent of about 700 sq.ft., on the eastern side of the house site, morefully described in the schedule forming part of the plaint, with his own funds. As such the first plaintiff is the absolute owner of the said superstructure and the other plaintiffs and defendants are the joint owners of the house site. Taking advantage of the old age of the deceased T.Chockalingam, the first defendant, in collusion with one Santhanam, had forced T.Chockalingam, to execute a sale deed, dated 26.6.1984, whereby, an extent of 495 sq.ft of vacant site, forming part of the western side of the suit property, was sold to and in favour of Santhanam. Thereafter, the said Santhanam started to interfere with the peaceful possesssion and enjoyment of the suit property occupied and enjoyed by the plaintiffs. Santhanam had also filed a suit in O.S.No.7790 of 1986 against the first plaintiff and the sons of the third plaintiff, with regard to an extent of 495 sq.ft on the western side of the suit property. The said suit was decreed by a judgment and decree, dated 11.9.1990. The appeal in A.S.No.239 of 1991, had also been dismissed. Thereafter, the first plaintiff had preferred a second appeal. Santhanam had also filed another suit in O.S.NO.6641 of 1988, against the deceased T.Chockalingam and his legal heirs, with regard to the poramboke land, occupied by the first plaintiff and the fourth plaintiff by putting up a hut in between the property, having an extent of 495 sq.ft, purchased by Santhanam and his other property at Jeth Nagar. b) The first, third and fourth plaintiffs are possessing, occupying and enjoying the house property bearing No.57, at Thiruvalluvar Pettai, Raja Annamalaipuram, Chennai, on the eastern side of the suit property. The first plaintiff is the absolute owner of the superstructure and is also having 1/7th share in the house site of an extent of 708 sq.ft. The first defendant had got the sale deed executed by https://hcservices.ecourts.gov.in/hcservices/ the deceased T.Chockalingam in favour of Santhanam by using mischievous means and had misappropriated the entire sale consideration, leaving the deceased T.Chockalingam in distress. The first plaintiff is having a service connection to the suit property in his own name and when Santhanam had attempted to interfere with the power supply to the house in the suit property, the first plaintiff had filed a writ petition before this Court in W.P.No.11949 of 1987. Based on the directions issued by the Court, the power supply to the house had been granted. The first defendant who has only 1/7th share in the house site of an extent of 708 sq.ft., over which the first plaintiff has put up his own superstructure, had obtained a settlement deed, on 11.07.1984, by fraud and coercion and by misleading the deceased T.Chockalingam. The fraud played on the deceased T.Chockalingam came to the notice of the plaintiff only when the Divisional Engineer, Tamil Nadu Electricity Board, by his letter, dated 28.06.1996, called upon the first plaintiff to submit his explanation as to why the power supply to the house in the suit property should not be transferred to and in favour of the first defendant. c) It was also stated that the first defendant is having all the documents to prove his ownership of the suit property. The first plaintiff had submitted an explanation to the Tamil Nadu Electricity Board and had also applied for a certified copy of the alleged settlement deed, dated 11.07.1984. The certified copy of the settlement deed was issued to the plaintiff, on 09.07.1996. It was found that the 708 sq.ft of the house site, with the superstructure thereon, namely, the premises bearing Door No.57, Thiruvalluvar Pettai, Raja Annamalaipuram, Chennai, had been sold to and in favour of the first defendant. The said deed is vitiated by fraud, coercion and misrepresentation and therefore, it is null and void. d) The first defendant is having only an 1/7th share in the suit property and the other plaintiffs and the second defendant are having 1/7th share each. The first defendant has got no right title or authority to interfere with the plaintiffs' peaceful possession and enjoyment of the suit property and the first defendant can claim only 1/7th share in the property. Since the first defendant is making arrangements and attempting to interfere with the peaceful possession and occupation and enjoyment of the suit property by the first, third and the fourth plaintiffs, the present suit had been filed. 4) In the written statement filed by the first defendant, it has been stated that the first defendant had https://hcservices.ecourts.gov.in/hcservices/ admitted the relationship of the plaintiffs and defendants as alleged in the plaint. Further, the claim that the first, second and third plaintiffs and the first defendant had equally contributed for the purchase of the house site in the suit property has been denied. It is only the first defendant who has paid the entire sale consideration and purchased the site in the name of his father. None of the plaintiffs have contributed for the purchase of the site. The first defendant had put up a superstructure on the property out of his personal earnings. The admissions made by the third defendant and her daughter in the letters, in the year 1977 would clearly prove the ownership of the first defendant over the suit property. The claim that the plaintiffs and the defendants were enjoying the suit property was denied. The property tax is assessed in the name of the first defendant and he is paying the taxes. To discharge the mortgage, a portion of the property had been sold by the father of the first defendant. The sale in favour of Santhanam is valid and it was so decided in the suit filed by the first plaintiff against Santhanam. The decision in O.S.No.7790 of 1986, with regard to the title of T.Chockalingam to the suit property, is final and it cannot be reagitated in the present suit. Therefore, the suit is barred by resjudicata. 5) The plaintiffs are not the owners and they are not enjoying the property in their own right. They are permitted to occupy the building since the first defendant was a resident of Bombay. Therefore, he had allowed his brothers and sisters to occupy the suit property and they are only permissive occupants of the suit property and they have no right, title or interest in it. The claim by the plaintiffs that they came to know about he settlement deed only in the year 1996 is a blatant lie. The allegation that late T.Chockalingam was not healthy and that he did not execute the settlement deed with full knowledge of his action is incorrect. It is only the first defendant who has the right over the suit property. Since the plaintiffs have no right over the property they cannot maintain the present suit for partition. Since the suit is not properly valued and the appropriate Court fee was not paid and since the suit is bereft of any material particulars and also due to the reason that there is no cause of action, the suit is liable to be dismissed with costs. 6. Based on the pleadings, the trial Court had framed the following issues for consideration: 1) Whether the plaintiffs are entitled for the relief of declaration as prayed for and to declare the settlement deed, dated 11.07.1984, as null and void. https://hcservices.ecourts.gov.in/hcservices/ 2) Whether the plaintiffs are entitled to their shares in the suit property as prayed for? 3) To what other reliefs? 7. On considering the oral as well as the documentary evidence adduced, the trial Court refused to accept the case of the plaintiff that the deceased first plaintiff had contributed money for the purchase of the house site in the suit property. The trial Court had found that the property in question, was the absolute property of late T.Chockalingam and that he was entitled to deal with the property in the manner he liked. The trial Court had also held that the settlement deed, dated 11.07.1984, executed in favour of the first defendant T.C.Nagalingam was valid, since there was no proof of fraud, undue influence, or coercion. Therefore, the trial Court had denied the relief of declaration as prayed for by the plaintiffs to set aside the deed of settlement. The trial Court had also found that P.W.1 had admitted that he was aware of the settlement at the time it was executed. It was also seen that late T.Chockalingam had died in the year 1990 and no objection had been raised during his life time with regard to his right to execute the settlement deed in respect of the suit property. Thus, the trial Court had dismissed the suit in O.S.No.11578 of 1996, by its judgment and decree, dated 16.12.2005. 8. Aggrieved by the judgment and decree of the trial Court, dated 16.12.2005, made in O.S.No.11578 of 1996, the respondents had filed an appeal in A.S.No.199 of 2006. 9. Considering the rival contentions, the First Appellate Court had framed the following points for consideration: 1) Whether the appellants/plaintiffs are entitled for a declaration? 2) Whether the appellants/plaintiffs are entitled for the relief of partition? 10. The First Appellate Court had held that the plaintiffs have been aware of the settlement even at the time of its execution in the year 1984. Since the suit had been filed by the plaintiffs beyond the period of limitation, settlement deed was not liable to be set aside. Since the respondents had not given particulars with regard to the allegation of fraud, and since such a claim could not be substantiated by evidence, the First Appellate Court had refused to accept the claim of the plaintiffs. It was also held that the plaintiffs have failed to prove that they had https://hcservices.ecourts.gov.in/hcservices/ contributed money for the purchase of the house site in the suit property and that they had contributed money for the construction of the superstructure. Since late T.Chockalingam had executed the settlement deed in favour of the first defendant and the plaintiffs could not sufficiently prove that the settlement deed was obtained by fraud or coercion, the plaintiffs were not entitled to claim any right in the property. Thus, the First Appellate Court had confirmed the judgment and decree passed by the trial Court. In such circumstances, the plaintiffs have filed the present second appeal before this Court, raising the following substantial questions of law: a) Whether the kartha of the joint family namely the deceased Chockalingam can execute the Settlement deed, dated 11.07.1984, with respect to the suit property which is a joint family property of late Chockalingam and his sons? b) Whether the Settlement deed, dated 11.07.1984, is valid in law when the deceased Chockalingam who executed the Settlement deed was not the absolute owner of the entire suit proeprty? c) Whether the Settlement Deed dated 11.07.1984 is vitiated by fraud played by the respondent on deceased Chockalingam which is proved by the evidence available on record? d) Can the Courts below give findings against the appellants contrary to the categorical evidence available on record as to the fraud played by the respondent on deceased Chockalingam with respect to the suit property? e) When the suit property had been treated as a joint family property all along, can it be subjected to any settlement by late Chockalingam who was only one of the co-owners of the same and kartha of the joint family? f) Whether the Courts below are justified in rejecting the claim of the appellants for partition and separate possession of 2/7th share in the suit property when the suit property is the joint family property of which late Chockalingam was the kartha of the joint family? 11) The learned counsel appearing on behalf of the appellants had contended that the Courts below had erred in coming to the conclusion that the plaintiffs have not proved that they had contributed money to purchase the suit house site in the suit property and that the allegation of coercion and fraud, with regard to the execution of the settlement deed, dated 11.07.1984, could not be proved. Even though there was sufficient evidence, the Courts below had arrived https://hcservices.ecourts.gov.in/hcservices/ at a wrong conclusion. It was alleged that the property is a joint family property of which late T.Chockalingam was the Kartha. He had no right to execute a settlement deed without the consent of the other family members, with regard to the joint family properties. 12. The learned counsel appearing on behalf of the defendants had submitted that such a plea had not been raised by the plaintiff and therefore, they should not be permitted to do so at this stage. 13. Considering the contentions raised on behalf of the parties concerned and in view of the documents available, this Court is of the considered view that the plaintiffs have failed to sufficiently prove their claims. Even though the plaintiffs had pleaded that late T.Chockalingam had executed the settlement deed, dated 11.07.1984, in favour of the first defendant based on fraud and coercion, they could not substantiate such a claim. When such a claims are made by the plaintiffs it is for the plaintiffs to prove them, by way of oral and documentary evidence. In the present case, it is found that the plaintiffs have failed to substantiate their claims by sufficient evidence. Further, the plaintiffs have not been in a position to prove that they had contributed money for the purchase of the house site in the suit property and for putting up a superstructure thereon. Further, the plaintiffs have not been in a position to show that the property in question was purchased by late T.Chockalingam as the kartha of the joint family. It was not the case of the plaintiffs, as stated in the plaint filed in the suit O.S.No.11578 of 1996, on the file of the VI Assistant City Civil Court, Chennai, that late T.Chockalingam was the kartha of the joint family and that the property in question belongs to the joint famly of late T.Chockalingm and his sons. Such a plea, not having been raised earlier, cannot be pleaded at this stage. 14. In such circumstances, this Court is of the considered view that the judgment of the Courts below cannot be interfered with by this Court in the present second appeal. Hence, the second appeal is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ csh To 1.The VI Additional Judge, City Civil Cour, Chennai. 2.The VI Assistant Judge, City Civil Court, Chennai. One cc to Mr.S.Sadasharam, advocate SR.No.21335 one cc to Mr.B.T.Seshadri, advocate SR.No.21292 S.A.No.1145 of 2007 CMP[CO] SKY/28/4 https://hcservices.ecourts.gov.in/hcservices/