IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 25 / 03 /2011 CORAM: THE HON'BLE MR.JUSTICE C.S.KARNAN CIVIL MISCELLANEOUS APPEAL NO.565 OF 2011 & Caveat Petition No.642 of 2011 R.Arunkumar ... Appellant/Plaintiff Versus K.Malaisami ... Respondent/Defendant Prayer: This appeal is filed under Section 43(1) of C.P.C. Read with 104 of Code of Civil Procedure, against the award and decree dated 31.01.2011 made in I.A.No.82 of 2010 in O.S.No.10123 of 2010 by the Additional District Judge, Fast Track Court – I, City Civil Court, Madras. For Appellant : Mr.S.Prabhakar for Mr.K.Subramani For Respondent : Mr.A.S.Alaguraja for M/s.S.Ponnarasi J U D G M E N T The above appeal has been filed by the appellant / plaintiff, against the award and decreetal order dated 31.01.2011 made in I.A.No.82 of 2010 in O.S.No.10123 of 2010, on the file of Fast Track Court – I, City Civil Court, Madras. 2.The short facts of the case are as follows: The plaintiff has filed a Civil Suit No.179 of 2009 against the defendant for declaring the order passed in O.P.No.630 of 1985 as non-est in law and one obtained by playing fraud and collusion and consequentially setting aside the sale made in favour of the defendant, dated, 07.03.1986, registered as document No.99 of 1986 on the file of Sub Registrar's Office, Sowcarpet and other relief. The plaintiff stated that the scheduled mentioned property situated at old door No.12-A and 12-B, New No.15 and 16, IInd Narayanan Street, George Town, Chennai – 79, originally belong to late D.Ramadurai, who was the father of the plaintiff and Late D.Rajadurai, the blood brother. They had purchased the property out of their own funds, https://hcservices.ecourts.gov.in/hcservices/ under the sale deed dated 28.04.1936 from the official referee, High Court, Madras in C.S.No.127 of 1934. The said Ramadurai and Rajadurai had executed a settlement deed on 06.05.1948 registered as document No.1398 of 1948 on the file of the Registrar, Madras, Chengalput, settling the plaint scheduled property in favour of their mother Late. G. Durai Ammal, in and by which Late. G.Durai Ammal was given a life estate with no power to mortgage or transfer or alienate the property or any other interest whatsoever. 3.In the said settlement deed, the original owners Late D.Ramadurai and Late D.Rajadurai reserved their right to enjoy the income of the plaint scheduled property through equal shares for a life time. In and by way of deed of settlement, after the life time of the settlors, the issues born to the settlees through their legally wedded wives of Reddy Caste, male or female, were given right to enjoy the income from the said property without any power of alienation or mortgage or transfer. Thereafter, the plaint schedule mentioned property was to be given absolutely to the children of the settlers born either male or female, issues as mentioned above and to enjoy in equal shares. The other condition of the settlement deed also provides that in the event of there being no issues to the settlers, the property would go to D.Lalithakumari, the sister of the settlers, who could enjoy the property without alienating and thereafter go on to the issues born to her and alive, to be enjoyed by them. 4.The father of the plaintiff D.Ramadurai had two issues namely, the plaintiff and a predeceased daughter R.Lalithakumari. The sister of the plaintiff namely, R.Lalithakumari expired on 13.09.1999. The settlee made the deed of settlement dated 06.05.1948, expired on 14.02.1985. The paternal uncle of the plaintiff namely, D.Rajadurai got married to a lady who died and not belonging to the Reddy Caste. The paternal uncle of the said Rajadurai, who after the death of the father of the plailntiff was incharge of the estates being the eldest male member, the said settlement deed ever since enforced. The paternal uncle had connived with the mother of the plaintiff namely, S.Kasturi and preferred a petition in O.P.No.630 of 1985 before the Principal City Civil Court at Chennai under Hindu Minority and Guardianship Act, 1956, seeking permission of the Court in order to sell the share of the plaintiff and his sister in the plaint scheduled property and obtained order from the Court for alienating the property on pursuant to the order passed in O.P.No.630 of 1985, dated 03.01.1986, the property was sold to the defendant. The said transaction was not known to the plaintiff. The paternal uncle of the plaintiff expired on 06.07.1989 and his mother expired on 01.01.2007. 5.The plaintiff further stated that a friend approached him in the month of August 2008, evincing interest in developing the plaint schedule mentioned property, thereafter he verified the title of the property and came to know the above mentioned facts that the property https://hcservices.ecourts.gov.in/hcservices/ was alienated in favour of the defendant on 07.03.1986 by way of registered sale deed bearing document No.99 of 1986 on the file of Sub Registrar, Sowcarpet. Hence, the suit has been filed by the plaintiff. 6.Thereafter, the Civil Court in C.S.No.179 of 2009 has been filed before this Hon'ble Court, subsequently it has been transferred to First Fast Track Court, Additional District and Sessions Judge, Chennai, to try the case. The transfer of the suit being made due to the rise in the pecuniary jurisdiction, after such transfer, the Civil Suit renumbered as Original Suit in O.S.No.10123 of 2010 under order VII, Rule 1 and 2 of C.P.C. The defendant stated in his affidavit that the suit property was originally belonging to two brothers, namely, D.Ramadurai and D.Rajadurai, who jointly purchased the property under a registered sale deed dated 28.04.1936. Thereafter, they had settled the property in favour of their mother Srimathi.Durai Ammal under a registered sale deed bearing Registration No.1398 of 1948, dated 06.05.1948 on the file of the Sub Registrar's Office, Madras, Chengalput. The respondent / defendant further stated that the settlement deed is invalid as per Sections 13 and 14 of the Transfer of Property Act. The respondent further stated that the mother of the plaintiff had filed O.P.No.630 of 1985 before the Principal, City Civil Court for permission to sell the minor properties and the same was granted under Section 8(2) of the Hindu Minority and Guardianship Act, the same was granted by the learned Principal, City Civil Court, Chennai on 03.01.1986, subject to the condition that a sum of Rs.43,750/- is deposited in the name of each of two minors until they attain adulthood in fixed deposit with the Bank of Baroda, Erabalu Chetty Street Branch, Madras-1, thus fixed deposit receipts are produced into this Court on or before 17.01.1992, the same was complied by the defendant. The total sale consideration for the scheduled mentioned property for a sum of Rs.2,25,000/-. Thereafter, the sale deed was executed by the mother of the plaintiff. The sale deed registered as document No.99 of 1986 on the file of Sub Registrar's Office, Sowcarpet, in the said sale deed was executed by the 7 vendors. 7.The defendant filed the interlocutory application for rejecting the plaint stating that the suit is hit by the provision of Limitation Act and as there is no cause of action. Regarding the sale of property the plaintiff is well aware after attaining adulthood and he had also filed two affidavits and petitions in the said O.P.No.630 of 1985 to declare him a major and to return the F.D.R. in the name of plaintiff, both petitions were allowed, the plaintiff was identified by the counsel. The plaintiff attained being major on 24.02.1989, on the expiry of his mother on 01.01.2007. Therefore, as per the Limitation Act, the suit ought to have been filed within three years from the date of attaining adulthood, as such the plaintiff should have filed the above suit on or before 24.02.1992, therefore, the suit is not maintainable under Article 59 and 60 of https://hcservices.ecourts.gov.in/hcservices/ the Limitation Act. The defendant stated that there is no cause of action for filing the said suit, the suit is an utter abuse of judicial machinery. Hence, the defendant prays to reject the plaint and dismiss the above suit with costs under Section 35 A of Civil Procedure Code. 8.The respondent / plaintiff had filed a counter statement and resisted the interlocutory application. The respondent stated that the order obtained in O.P.No.630 of 1985, which is not bona fide. The respondent further stated that as per the settlement deed of contents that the property should not be alienated. The O.P.No.630 of 1985, filed by the mother of the plaintiff seeking permission of the Court to sell the share of the plaintiff and his sister in the plaint scheduled property. As per settlement deed, the property should go to the grand children born either male or female, as such the O.P. was not established in law. The respondent / plaintiff further stated in his counter since, the deed of the settlement dated 06.05.1948 could not be revoked hurriedly, contrarily, to the settlement, the defendant had connived with the mother of the plaintiff, namely, S.Kasthuri and preferred a petition in O.P.No.630 of 1985 before the Hon'ble City Civil Court at Chennai, under the Hindu Minority and Guardianship Act, 1956, seeking permission of the Court to sell the share of the plaintiff and his sister in the plaint scheduled mentioned property. All these facts, which had been borne out by the documents were not placed before the Hon'ble Principal City Civil Court and an order obtained with mala-fide intention. Suppressing of various material documents by the mother of the plaintiff had obtained the permission. 9.On considering the affidavit and counter affidavit and on hearing the arguments of the learned counsels on either side, the learned Judge allowed the interlocutory application and rejected the plaint of the plaintiff stating that the suit is hopelessly barred by limitation. Aggrieved by the said order passed in the I.A.No.82 of 2010 in O.S.No.10123 of 2010, dated 31.01.2011, the appeal has been filed. 10.Learned counsel for the appellant argued that the suit filed by the plaintiff against the defendant for declaration by declaring the order passed in O.P.No.630 of 1985 as non-est in law. To establish the suit, the plaintiff had filed 17 documents, out of which the electricity consumption card and payment receipts are standing in the name of the plaintiff's father, which are vital documents to prove that the sale deed is a sham and nominal. As per counter statement of the defendant, the plaintiff's sister namely, R.Lalithkumari was mentally handicapped, for proving this fact Psychiatrist's evidence is not recorded. The scheduled mentioned property is situated at Sowcarpet, which is one of the richest locations in the city. The property extension i.e., 1400 sq.ft., was sold for a sum of Rs.2,25,000/- in the year 1986. The learned counsel https://hcservices.ecourts.gov.in/hcservices/ emphatically argued that the sale consideration of Rs.2,25,000/- would appreciate in the normal manner, whereas the land value gets mounting by heaps and bounds, besides the property comprises of both house and grounds and is benefited through rent, therefore, this property should not go up for sale in the interest of the minors, in the circumstances, fraudulent practices have been resorted to which is affecting the minor's interest. 11.Learned counsel for the appellant further argued that the plaintiff came to know about the fraudulent transactions in the month of August 2008, immediately, he had rushed to the Court to protect his interest by way of suit for declaration. The learned counsel emphatically argued that the sale consideration of the plaintiff had not been withdrawn by the plaintiff. The signature of the plaintiff is not genuine and appears to be impersonated. Several issues are arising in the said suit, so all such issues have to be framed and a solution to be formed by way of trial, as such, trial is imperative in this case, but the learned Judge rejected the plaint, which could cause irreparable loss to the plaintiff. 12.The learned counsel for the appellant cited the Judgments supporting his case namely; (i)BALASARIA CONSTRUCTION (P) LTD., v. HANUMAN SEVA TRUST reported in (2006) 5 SCC 658 “Civil Procedure Code, 1908 – Or.7 R. 11(d) – Rejection of plaint where suit appears from statement in the plaint to be barred by any law – Question whether words “barred by any law” in R.11(d) would also include barred by the law of limitation – Not considered by the three-Judge Bench of Supreme Court to which it was referred, in view of statement of both the parties that decision in this case would depend upon facts of the case – Held, plaint cannot be rejected under R.11(d) – Suit could not be dismissed as barred by limitation without proper pleadings, framing of issue of limitation and taking of evidence – Question of limitation is a mixed question of law and fact and ex facie on reading of the plaint, suit cannot be held to be barred by limitation – Parties relegated to contest the suit – It shall be open to defendant-appellant to raise any plea available to it under the law including the plea of limitation, maintainability of the suit, etc.” (ii)NAWAB SHAQAFATH ALI KHAN v. NAWAB IMDAD JAH BAHADUR reported in (2009) 5 SCC 162 https://hcservices.ecourts.gov.in/hcservices/ “Trusts Act, 1882 – Ss.6 56 and 61 – Execution of trust deed as per intention of author – Deed made by Nizam of Hyderabad for some of his personal properties – Beneficiaries filing multiple petitions and suits, involving interpretation of term “Remaining Sons' and Remaining Daughters' Fund” used in Cls. 9, 10 and 11 of deed – Courts below adopting diverse principles of interpretation – Trial Judge applying contextual interpretation – While interpreting, trial Judge giving common judgment on a preliminary question involved in two original petitions and two suits – Dealing with revision petitions filed against common judgment in original petitions, High Court applying literal interpretation – Revision petition pending with High Court – Also pending an appeal with High Court against order of trial Judge issued later on two questions consequential to preliminary question already decided – In view of proceedings pending before High Court, Supreme Court not inclined to interpret the deed on merits – Rejecting respondents' plea to widely construe Art. 136 of Constitution so as to finally adjudicate a matter involving interpretation of a deed, held, facts and circumstances of the case did not warrant so – Matter remitted back to High Court for being considered afresh together with pending appeals and miscellaneous applications – Constitution of India – Arts. 136 and 139-A. Scope of interference – Enlargement of scope of appeal – Permissibility – Deeds and documents – Trust Deed – Interpretation of.” (iii)AJAY BANSAL v. ANUP METHA reported in (2007) 2 SCC 275 “Civil Procedure Code, 1908 – Or.37 Rr.3(5) & (6), 4 and Ss.105(1), 2(2) & (1) – Summary suit – Leave to defend – Defendant's application for grant of, refused by Court – Held, on such refusal, passing of decree is almost automatic – Such decree can be passed either under R.3(6) or on the basis of affidavit evidence on the side of plaintiff and documents produced or even on oral evidence formally proving the case – Consequence of the decree cannot be avoided – Even if Supreme Court sets aside the order refusing to grant leave to defend, the decree would still be required to be set aside either by https://hcservices.ecourts.gov.in/hcservices/ resort to R.4 of Or.37 or in appeal or by any other permissible mode – Defendant may prefer appeal against the decree and therein challenge the order refusing leave to defend in terms of S.105(1) – Therefore, merely because in an appeal against order refusing leave to defend, Supreme Court is inclined to take a different view, it may not proper for the Court to interfere with the decree – Theory of “dependant order” may not apply in a case of this nature – Doctrines – Dependant order – Constitution of India – Art.136 – Interference with order refusing to grant leave under Or.37 R.3(5) C.P.C.” (iv)S.P.CHENGALVARAYA NAIDU v. JAGANNATH reported in (1994) 1 SCC 1 “Civil Procedure Code, 1908 – Ss. 33, 13 and Or.6 R.4 – Judgment or decree obtained by fraud – To be treated as nullity and can be questioned even in collateral proceedings – 'Fraud – Meaning of – Non-disclosure of relevant and material documents with a view to obtain advantage amounts to fraud – Partition suit filed by respondent without disclosing deed of release executed by him relinquishing his rights in the property and preliminary decree obtained – At the time of hearing of application for final decree filed by respondent, appellants-defendants coming to know about want of locus standi of the respondent and as such challenging the application on ground of fraud – Held, decree obtained by non-disclosure of the release deed amounted to fraud on court and hence decree liable to be set-aside – Penal Code, 1860, S.25 – Contract Act, 1872, S.17 – Words and phrases – 'Fraud' – Constitution of India, Art.136 – Fraud on Court.” (v)Khaja Quthubullah Vs. Government of Andhra Pradesh and others (08.07.1994 – APHC) “Civil – disposal – Order 14 Rule 1 and Order 7 Rule 11 of Code of Civil Procedure, 1908 – Trial Court rejected suit on ground of limitation – High Court stated that for rejecting a case all points relating to question of facts and law to be considered – case to be taken up first on question of law or fact and later on other issues – suit to be decided considering all evidenced produced by parties – Order of Trial Court set aside – Order 7 Rule 13 empowered petitioner to fill suit on same cause of action. https://hcservices.ecourts.gov.in/hcservices/ 13.Learned counsel for the respondent / defendant vehemently argued that the sale deed executed on 07.03.1986 and the plaintiff attained being a major in 24.02.1989, the suit was filed on 19.01.2009, after about 20 years the suit has been filed, so this suit is not maintainable under Article 59 and 60 of the Limitation Act, hence the suit is not maintainable under law. The learned counsel further argued that the plaintiff's natural mother had approached the Principal City Civil Court for permission to sell the property of the minors under the Hindu Minority and Guardianship Act. The learned Judge, after being satisfied with the averments of the plaintiff's mother and other evidence, the permission was granted for selling the property and the sale consideration to be by way of fixed deposit. The Court is equally responsible for the welfare of the minor's property. As such, there is absolutely no fraud in this case. From the date of purchase of this property, the defendant is enjoying the property without any interference whatsoever. All the Government records have been transferred in the name of the defendant, who is remitting the relevant tax to the Government namely, Property Tax, Revenue Tax, Water and Drainage Tax and Electricity charges etc., 14.The learned counsel for the respondent / defendant further argued that the plaintiff, on an after thought had misconstrued the suit with mala fide intention. All cases have to be dealt with in accordance with law, in this case, Limitation Act is not permitted i.e., Article 59 and 60, so the law does not permit to deal with this case, hence, the plaint is rejected. 15.The learned counsel for the respondent has also submitted a written submission, which is as follows:- “(1)The above CMA has been preferred against the fair and decreetal orders passed in I.A.No.82 of 2010 in O.S.No.10123 of 2010, dated 31.01.2011 by the Hon'ble Fast Track Court No.1, Chennai. (2)The above suit was filed for declaration declaring the order passed in O.P.No.630 of 1985, dated 03.01.1986 as non-est in law and setting aside the sale deed dated 07.03.1986 in Doc.No.99 of 1986 in favour of the respondent herein and not to alienate the suit property and for other formal reliefs. (3)The respondent filed an application in I.A.No.82 of 2010 for rejection of Plaint Under Order VII, Rule 11 of C.P.C. and Order 2, Rule-2 of C.P.C. In the said application, this respondent, apart from the facts of the case, inter-alia took out a stand that the suit is barred by Limitation as per the provisions of the Limitation Act viz., 59 and 60 of Limitation Act as amended up to date. https://hcservices.ecourts.gov.in/hcservices/ The trial Court, after considering the merits and question of Law based on the ruling reported in:- (i)(1999) 2 Supreme Court Cases 310 (ii)2003 AIHC Page 1489 (iii)AIR 1978 Madras 230 and (iv)AIR 1978 Madras 361 the Hon'ble Supreme Court and High Courts emphasized the provisions of the Limitation Act so as to render complete and comprehensive justice according to Law. 4.(i)The appellant's mother S.Kasthuri filed O.P.No.630 of 1985 before PJ, Chennai seeking permission to sell the suit property on behalf of her minor son (appellant herein) and her minor daughter. In the O.P. petition in para-9 (page-4 of typed set), it has been mentioned as follows: “The Said deed of settlement dated 06.05.1948 is null and void and it offends Sec. 14 of the T.P.Act, in view of this fact that the said settlement creates successive relief interest in favour of the settlers and their children and confers vested lief only with the children born to their heirs and to the settlers.” (ii)The O.P. was ordered on 03.01.1986 and the share of minors was also directed to be deposited in the Bank, accordingly share of this appellant Rs.43,750/- was deposited and sale deed was executed by the mother of this appellant for herself and for and behalf of her minor son and daughter along with Rajadurai (brother of the father of this appellant) and his heirs and the sale deed dated 07.03.1986 was registered in Doc.No.99/1986 SRO-Sowcarpet and the respondent took possession and enjoyment of the suit property from the date of sale. (iii)Patta for the suit property was mutated in the name of this respondent in the year 1986 itself (patta enclosed in page 12-13 of the typed-set) (iv)Property tax and water tax assessment were also mutated in the same name of the respondent in the year 1986. (v)In plaint (para-9), this respondent's possession and enjoyment has been admitted. https://hcservices.ecourts.gov.in/hcservices/ (vi)This appellant filed affidavits and petitions before the PJ Court to declare himself as major and for permission to withdraw his share deposited, and the Court allowed petitions were allowed on 19.04.1989 vide, orders in C.M.P.Nos.609 of 1989 and 610 of 1989 in O.P.No.630 of 1985, accordingly, this appellant withdraw his share without any protest and objection. (page-19-26 in typed set) (vii)It is an admitted fact that the date of birth of this appellant is 24.02.1971 and he attained majority on 24.02.1989. (page – 20 in the typed set) (viii)But the suit was filed on 19.01.2009 viz., after 19 years from the date of majority. As per the provisions of Limitation Act, the suit ought to have been filed within three years from the date of majority. 5.Legal Points: (i)The rejection of plaint (in Civil Court) is to be treated as “decree and judgment” as per the reported judgment in 2002–3–LW.698, (K.S.Geetha – Vs. Stanleybuck and another) followed by then the recent ruling of Madras High Court in 1998 (III) CTC 165 = 1998-3-L.W.505 (Nesammal and another vs. Edward and another). Therefore revision or Misc. Appeal will not lie, but regular appeal will only lie as per Sec.96 of C.P.C. (ii)Art.59 and 60 of the Limitation Act reads as follows:- Article-59: Description of Suit Period of Limitation Time from which period begins to run To cancel or set aside an instrument or decree or for the recession of a control Three years When the facts entitling the plaintiff to have the instrument or decree cancelled or set aside or the contract rescinded first become known to him Article-60: https://hcservices.ecourts.gov.in/hcservices/ Description of Suit Period of Limitation Time from which period begins to run To set aside a transfer of Property made by the Guardian of a ward - (a) by the ward who has attained majority Three years When the