IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 10-08-2009 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN Second Appeal No.1139 of 1992 Muthusamy Udayar .. Appellant /Plaintiff Versus 1.Kanaka Padayachi 2.Anbalagan(died) 3.Chinnaponnu 4.Vasanthi 5.Priyanka(Minor) 6.Priyadarshini(Minor) (R4 to 6 brought on record as LR of the deceased 2nd respondent vide order dated 15.12.2003 made in CMP.Nos.1178 to 11181 of 2002. Minors R5 and R6 represented by mother and natural guardian (Vasanthi) 4th respondent vide order dated 15.12.2003 made in CMP.Nos. 11178 to 11181 of 2002) .. Respondents/Defendants (R1 remained exparte in the Lower Court) Prayer: Appeal filed under section 100 of the Civil Procedure Code against the judgment and decree in A.S.No.63 of 1991, dated 24.09.91, on the file of Principal District Judge, Salem, reversing the judgment in O.S.No.1611 of 1986, dated 12.07.1990, on the file of Principal District Munsif Court, Salem. For Appellant : Mr.K.Chandrasekaran For Respondents : Given Up (R1) Mr.S.Rajasekar (R3) No Appearance (R4, R5 & R6) https://hcservices.ecourts.gov.in/hcservices/ J U D G M E N T 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 7. 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. 8. 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?" 9. 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. 10. 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 https://hcservices.ecourts.gov.in/hcservices/ 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. 11. 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. 12. 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. 13. The first appellate Court had framed the following points for consideration: "1. Whether the sale obtained by the first respondent/plaintiff would bind the appellants? 2. Whether the first respondent/plaintiff is entitled to the relief of permanent injunction, as prayed for?" 14. 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. 15. 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. https://hcservices.ecourts.gov.in/hcservices/ 16. 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. 17. 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. 18. 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?" 19. 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. 20. 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 https://hcservices.ecourts.gov.in/hcservices/ 1969, is not the suit property in question, in O.S.No.1611 of 1986. 21. 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. 22. The learned counsel appearing on behalf of the appellant has relied on the following decisions, reported in Raghubanchmani Prasad Narain Singh, V.Ambica Prasad Singh (dead) by his Legal representatives and others [AIR 1971 S.C. 776], Vishwambhar and others Vs. Laxminarayana (Dead) through L.Rs. and another [2001(3) CTC 316], Madhukar Vishwanath Vs. Madhao and others [2002 (4) CTC 49], and R.Sridharan and others Vs. Ammaniammal and others [2006 (2) CTC 377], 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. 23. 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. 24. 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. 25. 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. https://hcservices.ecourts.gov.in/hcservices/ 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. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar lan/arr To 1. The Principal District Judge, Salem. 2. The Principal District Munsif Court, Salem. 3. The Section Officer, VR Section, High Court, Madras. 1 cc To Mr.K.Chandrasekaran, Advocate, SR.37395 Second Appeal No.1139 of 1992 MRD(CO) SRA(10/9/2009) https://hcservices.ecourts.gov.in/hcservices/