IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.02.2010 Coram: THE HONOURABLE MS. JUSTICE R.MALA Second Appeal No.1385 of 1998 1.Natanasabapathi 2.Manickavelu .. Appellants/Defendants vs. Joseph Antonie .. Respondent/Plaintiff Prayer: Second Appeal is filed under Section 100 C.P.C. against the Judgment and Decree dated 31.10.1997 made in A.S. No. 43/1996 on the file of the Additional Sub Judge at Pondicherry, confirming the Judgment and Decree dated 20.11.1986 made in O.S. No. 404/1985 on the file of the IIIrd Additional District Munsif, Pondicherry. For Appellants : Mr. G. Masilamani, Senior counsel for M/S. G.M. Mani Associates For Respondent : Mr. S. Ashok Kumar, Senior Counsel for Mr. A. Sasidharan Mr. P. Palaninathan J U D G M E N T The Second Appeal is filed by the defendant against the judgment and decree dated 31.10.1997 in A.S.No.43 of 1996 on the file of the Additional Sub Judge at Pondicherry, confirming the Judgment and Decree dated 20.11.1986 made in O.S. No. 404/1985 on the file of the IIIrd Additional District Munsif, Pondicherry. 2. The averments made in the plaint are as follows: The suit property originally belonged to one Philip Diagou. He bequeathed the property in favour of plaintiff's father Joseph Xavier Aroquiasamy and gave life estate. The absolute right of the property vested upon to plaintiff and his two brothers, equally. The father of the plaintiff, Joseph Xavier Aroquiasamy without any manner of right, alienated the plaintiff's rightful share to the defendant. The plaintiff's father had sold the plaintiff's 1/3 share without permission from the Court of law, as a guardian of the minor plaintiff. So, the sale deed in favour of the defendant https://hcservices.ecourts.gov.in/hcservices/ in respect of plaintiff's share is void ab initio. The plaintiff and other two brothers, Philip Immanuel and Joseph Arul nathan are the executants along with their father. The plaintiff is a native christian and the personal Law that prevails for christians under Contractual Law of land alone is applicable. The plaintiff was aware of the said sale after the death of his father on 26.07.1983 and thereafter, he issued a legal notice to the defendant on 06.08.1984. But, he has not received any reply. So, the suit is not barred by limitation. Hence, he is entitled to 1/3 share in the property. He is constrained to file the suit for setting aside the sale deed dated 25.02.1970 as void ab initio, directing the defendant to hand over possession of 1/3 share to the plaintiff in the alternative, the plaintiff must be compensated to the value of the property. Hence, he prayed for the decree. 3. The gist and essence of the written statement filed by the defendant are as follows: The suit is barred by limitation, because the plaintiff ought to have filed the suit within three years of attaining majority. The plaintiff's father Joseph Xavier Aroquiasamy sold the property only with an intention to maintain the minor and to give proper education. The plaintiff's father was unemployed and he was living only with the income from the property and when the income from the said property was not sufficient to meet both the ends, as guardian of the minor and also to maintain the minor namely the plaintiff, during the time of sale, he had executed a sale deed in favour of this defendant and hence, the sale deed is valid. He is in continuous possession for over ten years and he has prescribed title to the property. The plaintiff has become major in the year 1973 itself. He ought to have filed the suit in 1976 itself. So, the suit is barred by limitation and hence, he prayed for the dismissal of the suit. 4. The trial Court, after considering the averments made both in the plaint and in the written statement, framed five issues and considering the oral evidence of P.W.1, D.W.1 and Exs. A1 to A4, decreed the suit by, setting aside the sale deed to the extent of plaintiff's 1/3 share in the suit property and the defendant is directed to hand over possession of the said 1/3 share in the property to the plaintiff and the extent of the said 1/3 share shall be determined by the issue of a commission during execution of the decree. Against that, the defendant preferred appeal in A.S. No. 43 of 1996 on the file of the learned Additional Subordinate Judge, Pondicherry. 5. The Appellate Judge had framed three points for determination and after considering the arguments of both the counsels, he dismissed the appeal. Against that, the present Second Appeal has been preferred by the defendant. https://hcservices.ecourts.gov.in/hcservices/ 6. At the time of admission of the Second Appeal, the following substantial question of law was framed for consideration: "1. Whether even if the respondent's father had no title or authority to sell the suit property in view of the Article 2265 r/w. Article 2268 of F.C.C., the appellant's father who purchased it under sale deed dated 25.02.1970 in good faith from him for valuable consideration and in continuous possession and enjoyment of the same for more than 15 years till the date of the suit, without any interference from anybody, including from the respondent, had not obtained title over the same in 10 years by prescription and the rights of the respondent, if any, over it had not extinguished either on 25.02.1980 or on 23.03.1983 and consequently the present suit filed by him on 06.04.1985 is maintainable? 2. Whether the customary Hindu Law would not apply to the respondent and his father as on the date of sale deed dated 25.02.1970 who are christians and govern the said sale?" 7. Heard both sides. The respondent as plaintiff, filed the suit for declaration that the sale deed dated, 25.02.1970, in favour of the appellants/defendants as void ab initio in respect of 1/3 share in the property and for recovery of possession or in the alternative for compensation. The trial Court after considering the oral and documentary evidence, decreed the suit for declaration and also granted recovery of possession. Against that, the appellants/defendants herein have preferred an appeal which was confirmed by the first appellate Court. Against that, the present Second Appeal has been preferred by the appellants/defendants. 8. The learned Senior counsel on behalf of the appellants/defendants would contend that the trial Court and first appellate Court has not passed the decree in accordance with the Prayer No.2. In that prayer, alternatively, compensation has been claimed by the respondent/plaintiff herein. The suit property is incapable of division which is measuring 9 feet X 16.5 feet. But, however, in description of property, it was stated as shop No. 7. So, the trial Court and first appellate Court ought to have granted compensation instead of decree of delivery. Hence, he prayed for the modification of the decree in respect of awarding compensation instead of delivery of 1/3 share in the suit property. 9. The learned Senior counsel appearing for the respondent/plaintiff would contend that the trial Court and first appellate Court has considered the both oral and documentary https://hcservices.ecourts.gov.in/hcservices/ evidence and came to the correct conclusion. Furthermore, the suit property is mere 6 feet X 9 feet, in which the shop is sufficient to carry over the business. The first appellate Court has also given a direction for appointment of commissioner. The sale deed dated 25.02.1970 is set aside to the extent of 1/3 share of the property transferred under it. The defendant is directed to hand over possession of the said 1/3 share to the plaintiff together with costs of the suit. The extent of the said 1/3 share shall be determined by the issue of a commission during execution of the decree. So, there is no infirmity and illegality in the decree passed by both the trial Court as well as the first appellate Court. Hence, he prayed for the dismissal of the appeal. 10. It is true that the suit property owned by the grandfather Philip Diagou of this respondent/plaintiff and he executed the Will Ex.A1 in which he has given life estate only to the father of the respondent/plaintiff Joseph Xavier Aroquiasamy and vested interest has been given to his three sons which is as follows: Philip Diagou Mudaliar | |W Anniammal | ________________________ | | Joseph Xavier Arokkiasamy Joseph Louis Prakasam | | _________________________________________ | | | | S1 | S2 |S3 Joseph Arulnathan (Major) Immanuvel Philip(Major) Joseph Atone (had given power of Attorney (joined father in the sale (Minor at the deed) time of sale dt.24.6.1969 Ex.A2 to father) has filed the present suit) During the lifetime of Joseph Xavier Aroquiasamy, he alienated the property in favour of the appellant/defendant under Ex.A2 sale deed dated 25.02.1970 along with two of his major sons. At the time of Ex.A2, the present respondent/plaintiff is minor. His father died on 26.07.1983. The respondent had attained majority on 23.03.1972. He issued the legal notice to the defendant under Ex.A3 on 06.08.1984. Then, the respondent/plaintiff filed the suit on 06.04.1985. Even though, the plea of limitation has been raised, but the suit has been filed within three years from the date of https://hcservices.ecourts.gov.in/hcservices/ death of his father. So, I am of the view that the trial Court has reached the correct conclusion that the respondent/plaintiff had filed the suit in time. 11. The two substantial questions of law have been raised whether the respondent is residing at Union territory of Pondicherry and belonged to christian community and whether the Hindu Law is applicable. It is also well settled that Hindu Law is applicable to the christian residing at Union territory of Pondicherry. So, the trial Court is correct in holding that the customary Hindu Law is applicable to the residents of Union territory of Pondicherry. 12. After the arguments of both the counsels, the following substantial question of law has been framed : Whether both the Court below has erred in not considering the alternate prayer for paying compensation instead of granting relief of delivery of possession of 1/3 share in the suit property, since the property is incapable of division and inconvenient enjoyment of both the parties? 13. At this juncture, the learned counsel appearing for the respondent/plaintiff would contend that property situated in No.7, Nellumandi Chandu, Pondicherry, which is situated in between Kosakadai street and Nehru Street. So, the 5 ½ X 9 feet is sufficient and convenient for doing business. Hence, the property is capable of division, that too, convenient for enjoyment. So, the trial Court has considered this aspect and came to the correct conclusion to deliver 1/3 share in the property. 14. The learned senior counsel appearing for the appellants/defendants would contend that from the date of purchase in the year 1970, when he was doing business in the property is only 16 feet X 9 feet width. After the property is divided into 11 feet X 9 feet, whereas the respondent/plaintiff is entitled to 5 ½ feet X 9 feet width is 11 feet X 5 ½ feet respectively. Hence, it is not convenient for enjoyment, if the property is divided. They are forced to put up dividing wall. It will also connect some portion of the living area. Hence, he prayed for giving compensation instead of delivery of possession of 1/3 share in the property. 15. Admittedly, no commissioner has been appointed and he has not visited the property and filed the report in pursuance of the description of the property. Shop No. 7 alone has been given. At this juncture, the learned appellants counsel would contend that the respondent ought to have filed the suit for partition, and he is not entitled to get the 1/3 share in the suit property for https://hcservices.ecourts.gov.in/hcservices/ declaration to cancel the 1/3 share in this suit property. 16. At this juncture, it is appropriate to consider the decision of this Court reported in 2001(2) M.L.J. 779 (S.K. Parthasarathy Naidu and another v. K. Rama Naidu and others), in which it was held as follows: "15. ... ... In the case reported in Firm Srinivas Ram v. Mahabir Prasad, A.I.R. 1951 S.C.177, the Supreme Court held that it would not be proper to drive the plaintiff to a separate suit. In fact, when this respondent had enriched himself with the funds advanced by the appellants, he is bound to return the same as per the agreement between the parties. The Court should not shut its eyes to the realities, remain shackled by technicalities, when the materials for granting the relief is on record, the oral and documentary evidence is available and the finding regarding the existence of loan is unchallenged. The second appellant herein filed only a suit for the basis for bare injunction. It is only in the comprehensive suit against which S.A. No. 499 of 2000 has been filed, that the suit for dissolution of partnership and share in the property was asked for. In this suit, the second appellant is the second defendant and he had undertaken to pay the necessary court fee upon the suit being decreed. The findings of the court below as regards the reliefs of dissolution of partnership and consequential allotment of 1/5th share etc. are all confirmed. But, in view of the findings above, there will be a decree in favour of the appellants for recovery of Rs.1.00 lakh together with 1/5th share in the profits made by the first respondent out of the sale of the suit property together with interest at 12% per annum, from date of decree, since the transaction from which the money was advanced was for a commercial venture. The respondent is directed to render accounts in respect of his sale of the suit property. Both the appellants shall pay the proper court fee on the amount recoverable. ..." As per the dictum of the Apex Court, it is well settled principle of law that relief can be moulded on the basis of the pleadings and evidence before the Court. Admittedly, the suit property is belonged to the appellants/defendants and they are also entitled to get 1/3 share and now, the respondent is entitled to get 1/3 share. In such circumstances, no compensation is granted instead of recovery of possession. https://hcservices.ecourts.gov.in/hcservices/ 17. The decree has been modified accordingly. The sale deed dated 25.02.1970, in respect of plaintiff's 1/3 share in the suit property is set aside and the plaintiff is entitled 1/3 share, So, preliminary decree of partition of the plaintiff/respondent's 1/3 share is granted. Appellants/defendants are entitled to 2/3 share in the suit property. Both parties are directed to pay the Court fee as per law. The respondent/plaintiff is directed to workout his remedy by way of filing final decree proceedings before the trial Court. 18. In fine, * The second appeal is disposed of. * The Sale deed dated 25.02.1970 is set aside as void ab initio in respect of the plaintiff's 1/3 share only in the suit property. * The preliminary decree of partition of 1/3 share in the suit property is granted in favour of this plaintiff/respondent. * Both appellants and respondent are directed to file final decree petition before the trial Court and get the property. * Both parties are directed to bear their own costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kj To 1.Additional Sub Judge Pondicherry. 2.The IIIrd Additional District Munsif Pondicherry. https://hcservices.ecourts.gov.in/hcservices/ 3.The Record Keeper V.R. Section High Court, Madras. +1cc to M/s.G.M.Mani Associates Sr 10282 +1cc to Mr.A.Sasidharan, Advocate Sr 10180 RJ(CO) km/1.4. S.A. 1385 of 1998 https://hcservices.ecourts.gov.in/hcservices/