IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :09.08.2011 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.No.1433 of 1995 1.Ayyavu Asari 2.Saradha 3.Seethammal 4.T.Neelakandan 5.T.Damodaran ... Appellants/Defendants 1, 3, 4 6 & 7 Vs. 1.Subbu Asari (deceased) 2.Ramamurthy 3.Raja Ammal 4.Perumal 5.Babu 6.Saroja ... Respondents/Plaintiffs (RR 3 to 6 are brought on record as legal representatives of the deceased 1st Respondent vide order dt.28.11.2006 in CMP.No.137 to 139/2003) Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 06.02.1995 in A.S.No.108 of 1992 on the file of the learned Subordinate Judge, Tiruvallur, preferred against the Judgment and Decree of the trial Court dated 19.12.1980 in O.S.No.786 of 1973 on the file of the District Munsif, Tiruvallur. For Appellants : Mr.M.V.Krishnan For Respondents : No appearance J U D G M E N T The Appellants/Defendants 1, 3, 4, 6 and 7 have projected the Second Appeal before this Court as against the Judgment and Decree dated 06.02.1995 in A.S.No.108 of 1992 passed by the Learned Subordinate Judge, Tiruvallur. https://hcservices.ecourts.gov.in/hcservices/ 2.Before the trial Court, in the main suit, on the side of the 1st Respondent/Plaintiff (later deceased), witnesses P.W.1 and P.W.2 have been examined and Exs.A.1 to A.13 have been marked. On the side of the Appellants/Defendants 1, 3, 4, 6 and 7 and the 2nd Respondent/ 5th Defendant, witnesses D.W.1 and D.W.2 have been examined and Ex.B.1 has been marked. 3.The trial Court, after contest and upon appreciation of oral and available documentary evidence on record, in the Judgment in O.S.No.786 of 1973 filed by the 1st Respondent/Plaintiff, has, inter alia, held that there is no clear evidence on the side of the 1st Respondent/ Plaintiff as to the possession of the Plaint schedule properties and further that there is no clear evidence on the side of 1st Respondent/ Plaintiff that Naina Achari lived jointly with his brothers. Moreover, there is also no clear evidence as to the partition alleged by the 1st Respondent/Plaintiff and that the Sale Deed dated 22.05.1958 and 21.3.1959 are not true and valid. That apart, the trial Court has also observed that the 1st Respondent / Plaintiff cannot base his claim with regard to the property covered under Ex.A.3-Letter dated 22.05.1958 executed by Ramadoss Achari in favour of Kannaiyuram Achari and Ex.A.4-Letter dated 21.03.1959 executed by Mottai Achari and others in favour of Kannaiyuram in view of his purchase under Ex.A.2-Sale Deed dated 24.07.1972. Added further, it has opined that even though Ex.A.2-Sale Deed 24.02.1972 is a true transaction, the same is not valid, since the 1st Respondent/Plaintiff cannot derive any title to the property covered as per Ex.A.3-Letter dated 22.05.1958 and Ex.A.4-Letter dated 21.03.1959. Consequently, the trial Court has come to the conclusion that the 1st Respondent/ Plaintiff is not entitled to get the relief of partition or declaration and possession as prayed for in the Plaint and dismissed the suit, directing the parties to bear their own costs. 4.Felling aggrieved against the Judgment and Decree of the trial Court dated 19.12.1980 in O.S.No.786 of 1973, the 1st Respondent / Plaintiff (later deceased) has preferred the A.S.No.108 of 1992 before the First Appellate Court viz., Learned Subordinate Judge, Tiruvallur. 5.The First Appellate Court viz., the Learned Subordinate Judge, Tiruvallur, while passing the Judgment in A.S.No.108 of 1992 dated 06.02.1995, has resultantly allowed the Appeal (leaving the parties to bear their own costs) in granting a decree in favour of the 1st Respondent/Plaintiff (later deceased) declaring his title in respect of item 4 of the suit property. Also, it granted the relief of permanent injunction in favour of the 1st Respondent/Plaintiff against the Defendants and also passed a preliminary decree for partition and separate possession of the 1st Respondent/Plaintiff's share in respect of item 5 of the suit property and in respect of the 1st Respondent/1st https://hcservices.ecourts.gov.in/hcservices/ Plaintiff's 1/4th share of item 1 of the suit property, besides granting a Decree for mesne profits in respect of item 1 of the suit property alone from the date of the suit etc. Further, the 1st Respondent/Plaintiff has been given the liberty to apply to the Court for appointment of a Commissioner for effecting division of his 1/4th share in item 1 and 5 and further to ascertain the mesne profits in respect of item 1. 6.The Appellants/Defendants 1, 3, 4, 5, 6 and 7 have preferred the Second Appeal before this Court, being aggrieved against the Judgment and Decree dated 06.02.1995 in A.S.No.108 of 1992 in regard to the declaration of title of the 1st Respondent/Plaintiff in respect of 4th item of the suit property and also as regards the grant of permanent injunction in favour of the 1st Respondent/Plaintiff etc. 7.At the time of admission of the Second Appeal, this Court has framed the following Substantial Question of Law: "Whether the Learned Subordinate Judge erred in declaring the title of the Plaintiff when he had failed to establish that his Vendor had any title or right to the suit properties?" The Contentions, Discussions and Finding on Point:- 8.The Learned Counsel for the Appellants/Defendants 1, 3, 4, 6 and 7 submits that the First Appellate Court has failed to appreciate that the vendor of the 1st Respondent/Plaintiff (later deceased) has no title and possession of items No.3 and 4 of the suit schedule property to convey to the 1st Respondent/Plaintiff. 9.It is the contention of the Learned Counsel for the Appellants/ Defendants 1, 3, 4, 6 and 7 that the trial Court has failed to take note of the fact that Naina Achari and his brothers have executed a registered mortgage deed in favour of Chellappa Chetty which is binding on the family and that the 1st Appellant/1st Defendant has discharged the debt and the heirs of Natesa Achari has no right to inherit the property without reference to the mortgage discharged by the Defendants 1 and 2. 10.Continuing further, it is the plea of the Appellants that the First Appellate Court should have held that the Sale Deed in favour of the 1st Respondent/Plaintiff is not a true and a valid one. Moreover, the First Appellate Court ought to have upheld the title of the Defendants as per Ex.A.7-Copy of Sale Deed dated 1.7.1970 which has been proceeded by an agreement dated 06.01.1968. 11.It is the stand of the Appellants that the 1st Respondent has constructed a pucca masonary tiled house 30 years ago on item No.5 and if his ownership of possession is disturbed, then, it will cause irreparable damage and hardship, which has not been taken into account at the time of passing of the Judgment in Appeal. https://hcservices.ecourts.gov.in/hcservices/ 12.It is the further submission of the Learned Counsel for the Appellants that the First Appellate Court has failed to appreciate that Kuppammal has received the entire consideration from the 1st Defendant on the date of agreement of sale dated 06.01.1968 followed by a Sale Deed-Ex.A.7 dated 12.7.1970. Continuing further, the First Appellate Court has failed to consider that the agreement in favour of the 1st Defendant by Kuppammal has been earlier to Ex.A.5-Sale Deed dated 15.07.1970 in favour of the 1st Respondent/Plaintiff. 13.According to the Learned Counsel for the Appellants, the First Appellate Court should have held that the 1st Respondent/Plaintiff's vendor Kannaiyuram has no title to the suit properties. 14.The Learned Counsel for the Appellants submits that there is no evident to establish that Naina Achari has been the manager of a joint family and that he has been a member of a joint family, with his brothers. Also, the 1st Respondent/Plaintiff has failed to establish that his case of partition between the brothers Naina Achari, Appasami Achari, Kandasami Achari and Duraisami Achari 30 years before the suit. 15.The Learned Counsel for the Appellants contends that the 1st Respondent/Plaintiff has not obtained any title to the suit property as per Ex.A.1 and A.2-Sale Deeds dated 06.01.1926 and 24.07.1972 in view of the fact that his vendors themselves have no title to the property. 16.The Learned Counsel for the Appellants submits that no reliance can be placed on Exs.A.3, A.4-Sale Letters and in any event, they cannot be looked into, for want of registration. 17.The Learned Counsel for the Appellants projects an argument that the First Appellate Court has failed to appreciate that the evidence of P.W.1 does not show that each member of the family of Singara Achari and Naina Achari contributed to the purchase of property covered as per Ex.A.1-Sale Deed dated 06.01.1926. 18.The Learned Counsel for the Appellants points out that the First Appellate Court should have confirmed the finding of fact based on evidence recorded by the trial Court to the effect that there is no clear evidence on the side of the 1st Respondent/Plaintiff to accept the division of properties between Naina Achari and Singara Achari. 19.It is the case of the Appellants that Rathnammal, who has left the family and living with the stranger after the death of Natesa Achari has no right to convey the suit properties to the 1st Respondent/ Plaintiff's vendor. https://hcservices.ecourts.gov.in/hcservices/ 20.The Learned Counsel for the Appellants submits that the First Appellate Court should have seen that the entire second item has been given to Naina Achari and that Appasami Achari has been given the Kachur property and also that the other brothers Kandasami Achari, Duraisami Achari have been given the other properties. 21.It is useful to refer to the evidence of P.W.1, P.W.2, D.W.1 and D.W.2 for better appreciation of the case. 22.P.W.1 (1st Respondent/Plaintiff), in his evidence, has deposed that the vacant plot in the suit property belongs to his father Chinnayya Achari and his father's two brothers are Singara Achari, Kanniyappa Achari and that the said Singara Achari expired and his father has four sons and further that he is the second son and his father and his uncle have died and further his uncle has one son. 23.It is the further evidence of P.W.1 that initially his father and uncle have remained as a joint family and that he purchased the properties from Kannaiyuram Achari and Appasami Achari is the father of Kannaiyuram Achari and Appasami's Achari has four brothers viz., Naina Achari, Appasami Achari, Kandasami Achari, Mottai Achari and all of them are not alive now and Naina Achari has four sons viz., Natesa Achari, Appavu Achari, Subramaniya Achari, Thangavelu Achari. Further, the said Natesa Achari has died, but his wife and child are alive and the daughter's name is Kuppammal and the Subramani's daughter has been arrayed as 3rd Defendant in the suit and Subramani Achari's son Krishnasami has been added as 4th Defendant in the suit and after the suit, Krishnan has expired and that Naina Achari and his brothers have remained as joint family at the initial stage and the suit village is the ancestral village and that they possessed the ancestral property. 24.The evidence of P.W.1 is to the effect that he has shown in the suit, the ancestral land obtained by the four persons and that Singara Achari and Naina Achari and his brothers have jointly purchased the properties and at the time of purchase made by the Ayyammal, the family has remained as a joint family and that Singara Achari and his brothers have remained as a joint family and that when Naina Achari has remained as a joint family. At that time, the family has been looked after by the Naina Achari and that Singara Achari has also looked after the family and two persons have purchased the property jointly and the documents are in their name and that after purchase made by the Ayyammal, the balance have been divided by them equally and at that time for Naina Achari family the lower portion and for Singara Achari family the upper portion have come to them respectively. The portion 30 x 24 feet extent has come to Naina Achari for which he has found a boundary and the original sale deed purchased by them has been misplaced and therefore, he has filed the Registration Copy of Sale Deed-Ex.A.1 dated 06.01.1926 and that the https://hcservices.ecourts.gov.in/hcservices/ ancestral land, which has been purchased, has been enjoyed by them treating it as a common one and later, the four brothers have partitioned the said plot and that Naina Achari has obtained the upper portion of the land and Appasami Achari got the lower portion of the land situated next to that of Naina Achari. The other lower portion has been obtained by Kandasami Achari and the lower lost portion has been allotted to the share of Mottai Achari. Also, they have partitioned the land which has been obtained in a joint manner. 25.P.W.1 has gone to the extent of deposing that after sharing the upper and lower portion on the northern side, a lane of 3 feet has been formed and kept for the 1st Respondent/Plaintiff and further, the 3 feet lane has been apportioned for the purpose of transport and on the northern side to that of the ancestral property, the Subramaniya Achari land is situated and after partitioned, the respective portions have been enjoyed by the respective sharers and that after the death of Appasami, his property has been enjoyed by the Kannaiyuram. 26.P.W.1 has also deposed that Kannaiyuram Achari has purchased the share/portion near the portion of Appasami which has come to the share of Kandasami Achari and from the date of purchase, he has been in enjoyment of the same and even the eastern share/portion of Mottai Achari has been purchased by Kannaiyuram and from the date of purchase, Kannaiyuram Achari has been in enjoyment and in all, he has been in enjoyment of 3/4th share and two shares have been purchased by means of a letter which is in possession of Kannaiyuram Achari and at the time of filing of the suit, he has given to him and that the said letter has been given to him at the time of purchase and that Kannaiyuram Achari has sold his portion of ancestral land and that Ex.A.2 is the Sale Deed dated 24.07.1972 executed by Kannaiyuram Achari in his favour and from the date of Ex.A.2-Sale Deed, he has been in possession of the properties and the properties which he has purchased from Kannaiyuram Achari through Ex.A.2 has been shown as item Nos.3 and 4 in the suit and the letter is Ex.A.3 dated 22.05.1958 and Ex.A.4 is the letter dated 21.03.1959. 27.It is the further evidence of P.W.1 that in item 3 of the suit property, the defendants have put hut and the 4th item, he is in possession and after putting the hut 10 days later he has filed the case and that Appavu Achari's brother is Natesa Achari and Natesa Achari wife is Rathinammal and that Natesa Achari has no son but he has two daughters and that Natesa Achari expired and for him Rathinammal and Kuppammal are the heirs. He has purchased the property in the name of Rathinammal and Kuppammal through Ex.A.5- Registered Sale Deed dated 15.05.1970. 28.In his cross examination P.W.1 has deposed that he has prayed for the relief of directing the possession of properties purchased by him from Rathinammal and Kuppammal and he has prayed for the relief https://hcservices.ecourts.gov.in/hcservices/ of declaration, the 3rd item of the suit property belongs to him and in respect of 4th item, he has sought the relief of injunction. 29.P.W.1 also has gone to the extent of deposing in his evidence to the effect that he has seen Singara Achari who died 15 years ago and that he has not seen Naina Achari and he has not seen the original of Ex.A.1-Sale Deed and that Kanniyappa Achari belongs to Pondawakkam village and that he has no lands now at Pondawakkam and the lands have been sold 7 or 8 years before and that Kanniyappa Achari and his elder brother and younger brother have got themselves divided well before, he has come to know about the worldly affairs and that for 1 and 2 Defendants, there are no cultivation lands and that Kannaiyuram Achari has been in possession of maniyam land at Pondawakkam and after the difficult sustenance, the maniyam land has been sold and when Kannaiyuram has been alive. 30.P.W.1, in his evidence, has further added that he has not issued any notice prior to the filing of the suit and that 10 years have elapsed from the date of his purchase from Rathinammal and after his purchase, they have divided and that the land has not been divided and house alone has been divided and constructed by the four sons of Ayyavu Achari and among themselves they have not divided and that Rathinammal is the brother's wife of Ayyavu Achari and at the time of his purchase, they have not divided and that he has not asked his brothers. 31.P.W.2, in his evidence, has stated that Appasami Achari is his father and along with father Jaana Achari, Kandasami Achari, Mottai Achari are his brothers and all four of them initially lived as a joint family and for them in Pondawakkam they possessed two ancestral lands and another land is a purchased one and that Subba Achari's father is Singara Achari and after him, his Chinnayya Achari and Singara Achari and his brothers originally they remained as a joint family and the land purchased for the Duraisami Achari family has been purchased by Singara Achari. It is the further evidence of P.W.2 that the family of brothers of Kannan and Durai Achari family jointly purchased the said land and at that time, Durai Achari has acted as a head of the family and each one of them has been in enjoyment after purchasing the same jointly and that for Durai Achari the lower down portion of the land has come to his share from and out of the joint purchase made and the upper portion of the land has come to Singara Achari share and that Duraisami Achari family originally has been in joint one and till such time, they lived as an one family, later the lands were partitioned and that the two lands have also been partitioned as co-sharers before 42 years ago and that in the two lands the upper end of the portion has fallen to the share of Durai Achari, the next lower down portion has fallen to Appasami Achari, the next lower end portion has come to Mottai Achari and that from the date of partition, each one of them has been in enjoyment of the property. At the time of property being divided his father has https://hcservices.ecourts.gov.in/hcservices/ been at Pondawakkam and even subsequent to the partition, his father has remained at Pondawakkam and later in the family some defects have arisen and he has gone to Chakru and in that place he has been living with his family and from the date of partition, the property in Kachur has been enjoyed by the Appasami and that Appasami Achari and his mother have expired and after his mother's death his father is also expired and for his father except himself there is no legal heir and his father has purchased other properties, other than the properties which has fallen to the share of his father and his father has enjoyed the properties till his death and after his father's death, he has enjoyed the same. 32.P.W.2, in his cross examination, has deposed that the Mottai Achari's portion of property is situated on the eastern portion of the property of Kandasami Achari and that he has purchased the share of Mottai Achari for a sum of Rs.50/- through Ex.A.4-Sale Letter and that the property has been handed over to him and ever since the date, he has been in enjoyment of the property and that after purchase of the property jointly, three shares have come to him and he has been in enjoyment of the three shares of the property. Furthermore, in the land belonging to elders, he has been in enjoyment of the land which has come to his father after the death of his father and that the land which has come from elders and the land which he has purchased when he has been ready to sell the same at that time Ayyavu Achari demanded the sale of the same. Also, he asked Rs.300/- as sale price, but Ayyavu Achari demanded the property for a very low amount and since the transaction has not been completed, later Appasami asked for the same for a sum of Rs.300/- and he got the sale executed. Ex.A.2 is the Sale Deed dated 24.07.1972 which he has executed in favour of Appasami Achari and that after selling the properties he has handed over Exs.A.3, A.4-Letters and from that date onwards, the property has been in enjoyment of Appasami Achari and before that, those properties have been in his enjoyment. 33.P.W.2 goes on to add in his evidence that Appasami after partitioned has purchased the properties and in that properties his father's other brothers have no right and he has sold the property purchased enclosing of his three shares and even in the ancestral land and the property which has come to his share have been sold to the Plaintiff. 34.Also, P.W.2 has deposed that he is in possession of the document through which his father has purchased the property and that after selling the some extent, the balance 35 feet east-west is available on the western side and it is not correct to state that in the suit village they do not possess the ancestral property. 35.D.W.1 (1st Defendant), in his evidence, has deposed that his brother is the 2nd Defendant and that the 3rd Defendant is the wife of Subramaniya Achari and the 4th Defendant is the daughter of https://hcservices.ecourts.gov.in/hcservices/ Subramaniya Achari and that he has also expired and that his elder brother Natesa Achari has also expired and Natesa Achari's wife is Rathinammal and Kuppammal is the daughter born to Natesa Achari and Rathinammal and he has given in marriage the daughter of Natesa Achari, Kuppammal and that his wife has gone out side. 36.Further, it is the evidence of D.W.1 that his father's name is Naina Achari and along with his father, there are four persons in their father's family and his father's brother Appasami Achari has been living at Kachur and his father and his brothers during the grandfather time has separated themselves and Appasami's son is Kannaiyuram and P.W.1 has never resided at Pondawakkam and it is incorrect to state that his father and his brothers have lived as one family. 37.D.W.1, in his cross examination, has deposed that Singara Achari has one female issue by name, Sengammal and that he has no male issue and further that Singara Achari's younger brother is Chinnayya Achari and for Chinnayya Achari, there are four male children and one son of Chinnayya Achari is the Plaintiff-Subba Achari and that along with Subba Achari, three persons, who have been born, are alive and Kanniyappa Achari is the another brother of Singara Achari and that Kanniyappa Achari has expired and his son is Arumugam. 38.The evidence of D.W.1 goes to the effect that Naina Achari and Singara Achari have purchased the property and it is incorrect to state that in the property purchased by Naina Achari and Singara Achari, Naina Achari's brothers have got a share and also at the time of Ex.A.1-Sale Deed dated 06.01.1926, Naina Achari and his brothers have remained as different families and it is incorrect to state that in the property purchased by Naina Achari and Singara Achari, Singara Achari has been allotted the upper portion of the property and the lower down portion has been given to Singara Achari and in Ex.A.1 document east-west 63 feet property has not been divided as upper half and lower half at any point of time and apart from the property purchased by Naina Achari and Singara Achari, other items of property and 2nd item of property have not been divided and in the elders property, Appasami