IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-04-2010 CORAM: THE HONOURABLE MR.JUSTICE S. PALANIVELU A.S.Nos.595 of 2008 and 614 of 2008 and M.P.No.3 of 2009 in A.S.No.595 of 2008 A.S.No.595 of 2008 1.Tirupurasundari (died) 2.C. Venkatachalam 3.C. Parankusam 4.D.P. Jaswanthi .. Appellants/ Plaintiffs [Appellants 2 to 4 brought on record as L.Rs. Of the deceased 1st Appellant] vs. 1.C. Nagarajan 2.M/s. Chinni yella Manda Chetty Anjaneyalu Chetty Charities rep: by K.Kuppuraj 3.M.K.Kuppuraj 4.C. Sambasivam 5.C.Chandran V.T. Arasu [dead] C.S. Ramakrishna [presumed dead] 6.Vijayalakshmi 7.Doshi Housing Ltd., rep. By its Direictor V.Doshi ...Respondents/ Defendants 1 to 5, 8 & 9 A.S.No.614 of 2008 Vijayalakshmi rep.by Power Agent M.V.Meghashyam ...Appellant/8th Defendant vs. 1. A. Tripurasundari (died) 2. C. Nagarajan 3. M/s. Chinni Yella Manda Chetty Anjaneyalu Chetty Charities rep by K. Kuppuraj https://hcservices.ecourts.gov.in/hcservices/ 4. M.K. Kuppuraj 5. C.Sambasivam 6. C.Chandran 7. Doshi Housing Ltd., rep.by its director Harshd V. Doshi 8. C. Venkatachalam 9. C. Parangusam 10.D.P. Jaswanthi Respondents 8 to 10 brought on record as LRS of the deceased first respondent vide order of Court dated 15.6.2009 made in M.P.2/09 ... Respondents/ Defendants Appeal Suits are filed under Section 96 of the Code of Civil Procedure against the judgment and decree dated 7.12.2007 made in O.S.No.11361 of 1996 on the file of the III Additional Judge,City Civil Court, Chennai. For Appellants : Mr.T.R. Mani Senior Counsel for M/s.M.V. Venkataseshan in A.S.No.595 of 2008 and M/s.T.N. Rajagopalan A.S.No.614 of 2008 For Respondents : Mr.T.V. Ramanujam Senior Counsel for M/s. Sathish Parasaran [for R-1 to R-3, R-5 & R-7 in A.S.No.595/2008 for R-2, R-5 & R-7 in A.S.No.614/2008] M/s Indra Ramesh for R-3 in A.S.No.614 of 2008 M/s. M.V. Venkatesh for R-8 to R-10 in A.S.No.614 of 2008 RR 2,5,6 and 7 Ex-parte in A.S.No.595 of 2008 R-4 & R-5 in A.S.No.614 of 2008 https://hcservices.ecourts.gov.in/hcservices/ C O M M O N J U D G M E N T [Because of the interconnectivity of the matter, the common judgment is rendered.] 1. The following are the allegations contained in the plaint: 1.(a) The suit property belonged to one late Chinni Yella Manda Chetty, who had two sons by name C.Y. Anjaneyalu Chetty and C.Y. Sanjeevi Chetty. Sanjeevi Chetty had two daughters who are plaintiff and 8th defendant. Anjaneyalu Chetty adopted 1st defendant by name C. Nagarajan. Sanjeevi Chetty died on 19.2.1952. His wife is one Visalakshmi Ammal. On the authority given to her by her late husband, she took 7th defendant C.S. Ramakrishna in adoption on 24.8.1953. Chinni Yella Manda Chetty on 14.7.1923 executed a Settlement Deed and a Will. Under the Settlement Deed, he settled 'A' Schedule properties to his first son Anjaneyalu Chetty and 'B' Schedule properties in the name of Sanjeevi Chetty. He also gave directions to his two trustees Sri Vattam Gopala Chetty and Sri Srirangam Pillai for the benefit of his two minor sons. 1.(b) He appointed both of them as executors, giving life interest to his sons and remainder to the sons or grand sons of his sons. He died on 21.9.1923. On 24.5.1928, a Conveyance Deed was executed by the executors in favour of Sanjeevi Chetty with reference to the suit property as per the direction in the Will. Hence Sanjeevi Chetty became absolute owner of the property. On 19.2.1952 he died leaving behind him, his wife Visalakshmi Ammal, Plaintiff and 8th defendant. C.Y. Anjaneyalu Chetty claimed rights from the estate of Sanjeevi Chetty, denying rights to his widow, daughters and adopted son. Hence, Visalakshmi Ammal filed suit in C.S.No.45 of 1954 for herself and on behalf of adopted son/7th defendant, before the High Court for the Administration of the Estate of Sanjeevi Chetty. Anjaneyalu Chetty and his adopted son/1st defendant filed C.S.No.55 of 1954 before the High Court against Visalakshmi Ammal and 7th defendant with prayers that adoption of 7th defendant was invalid and for recovery of possession. 1.(c) Both the suits were tried together. The adoption was held valid in the suit and it was also held that the properties in the suits revested in Chinni Yella Manda Chetty and after his death in 1923, Sanjeevi Chetty became entitled to one half of the properties and other half would go to Anjaneyalu Chetty and 1st defendant. 1.(d) Two appeals were filed at the instance of Visalakshmi Ammal and Ramakrishna in O.S.A.No.24 of 1956 and O.S.A.No.32 of 1957 before the Division Bench of this Court. The Division Bench confirmed the decree passed by the learned single Judge. Anjaneyalu https://hcservices.ecourts.gov.in/hcservices/ Chetty died in 1973. Visalakshmi Ammal was completely kept in the dark and was not treated well by her brother-in-law Anjaneeyala Chetty and she underwent trials and tribulations at his hands. She died on 29.4.1991. The plaintiff was not aware of the properties left behind by Visalakshmi Ammal and 1st defendant approached the plaintiff with reference to some other matters and when the plaintiff's husband Mr.V. Venkatachalam enquired about the estate of Sanjeevi Chetty, he stated that the plaintiff, 8th defendant and 7th defendant were entitled to a share in the suit property and as his father executed a Trust Deed they lost their claims in the schedule property also. On request he gave to plaintiff's husband a copy of the settlement deed dated 4.9.1972 and on perusal of that it would be seen that Anchaneeyalu Chetty had created a public trust and appointed trustees. He refused to apprise the plaintiff about the subsequent proceedings in the appeal suits in O.S.A.Nos.24/56 and 32/57. By virtue of judgment in the Civil Suits, there has been no ouster and the property is vacant site with buildings. 1.(e) Advisors of Visalakshmi Ammal were influenced by C.Y. Anjaneyalu Chetty, who saw to it that no proper instructions were given to the counsel appeared for Visalakshmi Ammal. He took full advantage of the illiteracy and the active connivance of her advisors made her enter into a compromise which is vitiated by fraud perpetrated by him. It is not binding on the plaintiff. Even after the said compromise, Visalakshmi Ammal was living in the schedule property. Anjaneyalu Chetty was also allowed to reside in the schedule property in the capacity of co-owner. 1.(f) The plaintiff and the 8th defendant issued notice dated 31.3.1994 through their counsel to the 1st defendant and defendants 2 to 6 calling upon them to surrender the suit property. In the reply, the first defendant has not mentioned as to how adoptive father got absolute title to the property. The document dated 4.9.1972 is wholly void. Anjaneyalu Chetty did not inform Visalakshmi Ammal about the said document. The plaintiff obtained an Encumbrance Certificate for 24 years from 1.1.70 to 18.4.1994, which shows that on 5.11.1970, Anjaneyalu Chetty and 1st defendant have executed a gift deed. The said document is not binding on the plaintiff. The possession of one co-owner is on behalf all other co- owners also. During and after the life time of Anjaneyalu Chetty, Visalakshmi Ammal, 7th defendant and 1st defendant continued to be the co-owners of the property and the plaintiff, 7th defendant and 8th defendant are entitled to 1/12, 1/3 and 1/12 share respectively and 1st defendant is entitled to half share in the suit property. The whereabouts of 7th defendant are not known for about 9 years and he is legally presumed to be dead.(in the amended plaint it is alleged that the plaintiffs and 8th defendant are entitled to ¼th share in the schedule property). Hence, preliminary decree for partition of https://hcservices.ecourts.gov.in/hcservices/ plaintiff's 1/4th share may be passed. 2. In the written statement filed by 8th defendant, following are stated:- 2.(a) This defendant was born in 1951. The plaintiff, the sister of this defendant was born in the year 1936. After this defendant received suit summons, she made enquiries with reference to all the affairs and properties of her family. She found that the other members of the family, mediators and self-styled intervening persons had perpetrated a total fraud on the members of the family, who virtually helped Anjaneyalu Chetty. He had prevailed on the mediators and even the advocate of the Visalakshmi Ammal had succumbed to the pressure exercised by the mediators. At the behest of Anjaneyalu Chetty, the mediators perpetrated fraud on Visalakshmi Ammal, who is illiterate. The written statement also contains the particulars of Will and Settlement Deed dated 14.7.1923 as alleged in the plaint. 2.(b) Visalakshmi Ammal would understand and follow only Tamil and Telugu. She learnt to sign her signature in English. Her ignorance was gained by several persons whom she plainly relied and she was incompetent to deal with several properties and faced problems from time to time. The trustees were not able to sell the bungalow at Chetput and made the father of this defendant to purchase it for the moneys due to him and in the said circumstances he had executed a registered sale deed dated 24.5.1928 in favour of Sanejeeva Chetty conveying the suit property. Hence the suit property had become the personal property of Sanjeevi Chetty and ceased to be part of the estate of Chinni Yella Manda Chetty. 2.(c) Sanjeevi Chetti was indebted to several people and there was pressure on the estate from the creditors and also from Anjaneyalu Chetti. Visalakshmi Ammal filed an Administration Suit for herself and on behalf of the 6th defendant in C.S.No.45 of 1954 on the file of High Court. After filing of the said suit, Anjaneyalu Chetty and his adopted son, the first defendant filed C.S.No.55 of 1954 before the High Court against Visalakshmi Ammal and 7th defendant challenging the adoption and recovery of possession of even all the properties which were in the exclusive possession of Sanjeevi Chetty. Both the suits were disposed of by a common judgment and the trial court decreed that the plaintiffs were entitled to ½ share and the defendant 1 and 2 were entitled to another ½ share and the matter was referred to the official referee to effect partition in C.S.No.55 of 1954. Adoption of 6th defendant was held valid and the Visalakshmi Ammal and the minor son 6th defendant were entitled to a half share. 2.(d) Visalakshmi Ammal filed O.S.A.No.24 of 1956 in which https://hcservices.ecourts.gov.in/hcservices/ Anjaneyalu Chetty filed cross objection claiming that Visalakshmi Ammal and her adopted son should not have been granted half share. Questioning the share allotted to Anjaneyalu Chetty, Visalakshmi Ammal filed O.S.A.No.32 of 1957 in which also Anjaneyalu Chetty filed cross objections. The appeals and cross objections were dismissed. The suit property is absolute property of Sanjeevi Chetty and hence no question of succession to the same as if it was defendant's grand father's property. Anjaneyalu Chetty so influenced the advisers of Visalakshmi Ammal to see it that proper instructions were not given to the counsel and correct case was not put before the court. He took undue advantage of the illiteracy of Visalakshmi Ammal and perpetrated fraud. He also played fraud by making her entering into compromise in both the suits in April 1961. The compromise is a result of fraud played by Anjaneeyalau Chetty by taking away the absolute property of Sanjeevi Chetty. Anjaneyalu Chetty also created a benami trust and it is said to have obtained permission for the development of the properties. The values given in the compromise is a fraudulent one and the values of the properties given to Visalakshmi Ammal had been inflated and the value of the properties taken by Anjaneyalu Chetty were totally deflated. 2.(e) None of the parties to the said compromise would be bound by the compromise. The said fraud was discovered recently when the defendants enquired about the nature of the property and how the transaction was entered into. In view of the fraud, the compromise decree in C.S.No.45/1954 and 55/1954 are liable to be set aide and it is prayed the Court to set aside the compromise decree, allowing 1/4th share to 6th defendant. The cause of action for the suit arose in September and October 1996 where the fraud was discovered in September 1996. When the defendant after receipt of suit notice made enquiries and ascertained the correct particulars and Court fee of Rs.6,171/- is paid valuing the compromise decree at Rs.4,11,340/- and also Rs.300/- for partition of her 1/4th share in the suit property under Section 30(2) of Tamil Nadu Court Fee Act. 3. The averments found in the written statement filed by the defendants 1 to 5 are as follows:- 3.(a) The suit as framed is not sustainable in law, which is liable to be dismissed limine insofar as there is no valid, justifiable cause of action surviving the interest of the Vishalakshmi Ammal as the suit property was not left behind as her estate. The suit is barred by limitation since these defendants have been in undisputed possession and ownership of the suit properties beyond the period of limitation and on 4.4.1961, pursuant to the compromise entered into between C.Y. Anjaneeyalau Chetty and his adopted son C. Nagarajan, 1st defendant herein on the one part and Vishalakshmi Ammal and her adopted son C.S. Ramakrishna, 7th defendant herein on the other part in C.S.No.55 of 1954, the suit https://hcservices.ecourts.gov.in/hcservices/ property had become the absolute property of Anjaneyalu Chetty and C.Nagarajan/1st defendant. 3.(b) The plaintiff who is only claiming title under Visalakshmi Ammal cannot seek to impeach the compromise entered into by Visalakshmi Ammal that too after a lapse of over three decades. It is pertinent to point out that the plaintiff had already attained majority even in 1961, when the compromise was entered into. Even assuming without admitting that the said facts were not personally made known by these defendants to the plaintiff, a reasonable diligence on the part of the plaintiff would have certainly led to the discovery of all material facts. The averments in the plaint do not show that the plaintiff had exercised due diligence in discovering the facts. 3.(c) Visalakshmi Ammal and 7th defendant have lost their right, title and interest in the suit property in view of the fact that prescriptive right has been perfected statutorily by Anjaneyalu Chetty and C.Nagarajan and such explicit legal conduct will bar the plaintiff from questioning a lost estate over a statutory period. There is no individual right surviving to the successors of the Visalakshmi Ammal and C.S. Ramakrishna and therefore the suit is barred by principles of estoppel and resjudicata. The plaintiff is fully aware of the factum of the proceedings initiated by Visalakshmi Ammal in C.S.Nos.44/54 and 45/54 and the prolonged litigation of these suits along with C.S.No.55/54 and such knowledge of litigation allotment and enjoyment of the property as and when from 4.4.1961 bars the plaintiff from challenging these defendants of their right, title and interest in the suit property. The 1st defendant denies the allegation of knowledge for the first time through him. The affairs of Visalakshmi Ammal atleast after the marriage of the plaintiff had been effectively controlled and managed by the plaintiff and her husband, therefore she fully associated with her mother's affairs even during her life time and all case papers relating to C.S.No.44/54, C.C.45/54 were available with Visalakshmi Ammal and her daughter, the plaintiff is estopped in law from contending knowledge of the affairs only subsequent to her death on 29.4.1991. 3.(d) It would be impossible for the plaintiff to sustain a claim for these defendants' possession in the suit property. In fact, a reference to the very suit register would have given the indication that the suit was settled by a Compromise in C.S.No.55/54 on 4.4.1961 recorded by the High Court. However, these defendants have filed counter affidavits in the applications taken out by the plaintiff in Application Nos.725/94 and 853/94 in the suit, where it had been fully set out how the compromise was effected and recorded by Court while passing the compromise decree on 4.4.1961 had apportioned the property as 'A' and 'B' Schedule Properties and how 'A' schedule properties were given to Anjaneyalu Chetty and his son https://hcservices.ecourts.gov.in/hcservices/ and 'B' schedule property to Visalakshmi Ammal and her adopted son. As far as 'A' schedule properties are concerned, the suit property is item No.5 and this item has been specifically allotted to Anjaneyalu Chetty. Therefore, the property had become the property of Anjaneyalu Chetty and C. Nagarajan. Being only a successor in interest of Visalakshmi Ammal, the plaintiff cannot avoid or ignore the legally and vividly passed compromise decree. The items of property allotted to Visalakshmi Ammal had gone to her and she retained the control, custody and possession of those allotted items as her estate. The plaintiff along with 7th and 8th defendants as heirs of Visalakshmi Ammal succeeded to the estate and have been in possession of the estate jointly and in common on the death of the Visalakshmi Ammal. Having succeeded to the estate of Visalakshmi Ammal, held by her in terms of compromise deed, it is not open to the Plaintiff to question item 5 of 'A' Schedule property. 3.(e) There is no question of a third party to the deed of settlement executed by Anjaneyalu Chetty on 4.9.1972, claiming a right to challenge the document in any manner. The first defendant accepted the document and in terms of the document, the Trust is functioning and the plaintiff herself has proceeded against the trustees. Anjaneyalu Chetty and C.Nagarajan held the property in terms of a partition effected under the compromise decree dated 4.4.1961 and by a release made by the first defendant in favour of his father, the property was enjoyed by Anjaneyalu Chetty by reason of such exclusive right, title to the property for executing the document dated 4.7.92 in and by which the Trust has come into being and the Trust has taken possession of the property as and from that date. The management of the property by the Trust had also been recorded by income tax authorities. Under such circumstances, the Trust had decided for demolition and reconstruction under a promotion agreement with the assistance of Doshi Housing Limited, (7th respondent in A.S.595 of 2008). The proposal for demolition and permission for development of the property was granted by the Court, Sanction Plan from the Corporation of Madras and Certificate of appropriate authority under Section 269-ul(1) of Income Tax Act were obtained. The Trust has filed the returns in respect of the property as a Trust property. In face of these, a claim by a third party for declaring the said document as void is a motivated one and there is no legal right, title or interest in the third party in any manner. 3.(f) All material facts constituting the cause of action for the suit were all along within the knowledge of the plaintiff. The pleas made by the plaintiff that the suit property is in possession of the plaintiff and the defendants as co-owners without any ouster of the plaintiff by the defendants would fall to the ground once the above mentioned compromise decree is taken into consideration. Plaintiff having come before the court with material suppression and the suit having been barred by limitation and the claim of the plaintiff having been barred by principles of resjudicata and https://hcservices.ecourts.gov.in/hcservices/ estoppel by conduct and having obtained the estate of the deceased as successor having not included other items of properties the suit is liable to be dismissed with exemplary cost. 4. After analysing the pleadings, oral and documentary evidence, the learned III Additional Judge, City Civil Court, Chennai, dismissed the suit with cost. He has also turned down the prayer of the 8th defendant in her written statement for division of 1/4th share in the suit property. Hence both the plaintiff and 8th defendant in the suit were filed these separate appeals. Pending hearing of these appeals, 7th respondent filed an application under Order 41 Rule 27 C.P.C to receive a copy of compromise decree dated 4.4.1961 as additional evidence. [Ranks of the parties are referred to as found in the suit in O.S.No.11361 of 1996.] 5.The following points have arisen for consideration in these appeals: 1. Whether the application (M.P.No.3 of 2009 in A.S.No.595 of 2008) under Order 41 Rule 27 has to be allowed? 2.Whether the allegation that the compromise dated 4.4.1961 in C.S.No.55 of 1954 is vitiated by fraud has been established? 3.Whether the claims of the plaintiff and 8th defendant, in both appeals have been barred by limitation? 4.Whether the plaintiff and 8th defendant are estopped from claiming share in the suit property? Point No.1: 6. One Chinni Yella Manda Chetty had two sons C.Y.Anjaneyalu Chetty and C.Y.Sanjeevi Chetty. C.Y. Anjaneyalu Chetty had one daughter. He also adopted 1st defendant. C.Y. Sanjeevi Chetty had two daughters who are the plaintiff and 8th defendant. Sanjeevi Chetty died on 19.2.1952 leaving his wife Visalakshmi Ammal and his daughters. It is stated that on the authority given to her by her husband, Visalakshmi Ammal adopted 7th defendant on 24.8.1953. It is alleged in the plaint that since his whereabouts are not known for the past more than 9 years he has to be legally presumed to have died and that his share would devolve upon plaintiff and 8th defendant. Presently, the plaintiff and 8th defendant are claiming share of 1/4th each in the suit property. 7. Even though Chinni Yella Manda Chetty has executed the settlement deed and Will dated 14.7.1923, they have not been produced before the Court. The transactions or affairs aftermath https://hcservices.ecourts.gov.in/hcservices/ the above said deeds are not at all in dispute. It is stated that a Conveyance Deed was executed by the executors in favour of Sanjeevi Chetty in respect of suit property on 24.5.1928 making him as absolute owner of the property. Heart burns are alleged to have arisen between Anjeneeyalu Chetty and Visalakshmi Ammal after the death of Sanjeevi Chetty and that misunderstandings occurred between them which led her to file a suit for Administration of the Estate of Sanjeevi Chetty in C.S.No.45 of 1954 on the file of this Court. She filed the suit for herself and on behalf of her adopted son, 7th defendant. Anjaneyalu Chetty, 1st defendant and other creditors of Sanjeevi Chetti are defendants in that suit. Thereafter, Anjaneyalu Chetty filed a suit for himself and on behalf of 1st defendant herein, in C.S.No.55 of 1954 praying for reliefs that the adoption by Visalakshmi Ammal of 7th defendant was invalid and for recovery of possession of the properties which had been in the possession of Sanjeevi Chetty in accordance with provisions in Settlement Deed and Will. 8. In the said suits joint trial was conducted and was held that adoption by Visalakshmi Ammal was valid and that the adopted son was not entitled to claim as named donee of the settlement or the Will and the properties in the suit became revested in Chinni Yella Manda Chetty and after his death Sanjeevi Chetty became entitled to one half of the properties disposed of in his favour by the settlement deed and Will dated 14.7.1923 and on his death, Visalakshmi Ammal and adopted son were entitled to half share of the Sanjeevi Chetty and the other half would go to Anjaneyalu Chetty and his adopted son. These are the plaint pleadings with regard to the prayers, reliefs claimed and granted in the said suit. Visalakshmi Ammal and 7th defendant, challenged the above said judgment by filing two appeals in O.S.A.Nos.24 of 1956 and 32 of 1957 before this Court and Anjaneyalu Chetty and his adopted son preferred cross objections. A Division Bench of this Court confirmed the judgment. 9. 7th respondent in the appeals, who is 9th defendant in the suit, filed an application to receive an additional document, a copy of compromise decree dated 4.4.1961 passed in C.S.No.55 of 1954 by this Court. The petitioner has alleged in the affidavit besides graphically narrating the earlier events as follows:- 9.(a) The suit before the trial court was dismissed for default as many as three times. The trustees of the Chinni Yella Manda Chetty Anjaneyalu Chetty Charities and the legal heirs of Anjaneyalu Chetty filed