IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:01.04.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN S.A.No.763 of 2002 Visvanathan ....Appellant/Plaintiff Vs. 1.Ramanujam 2.Vedam 3.Santha 4.Anjammal ..... Respondents/Defendants Prayer : Appeal filed under Section 100 of the Code of Civil Procedure, against the Judgment and Decree dated 23.01.2002 and made in A.S.No.15 of 2001, on the file of the learned Additional District Judge, Nagapattinam, modifying the Judgment and Decree dated 17.10.2001 and made in O.S.No.232 of 2000, on the file of the learned Additional Subordinate Judge, Nagapattinam. For Appellant : Mr.K.Chandramouli, Senior Counsel for M/s.K.M.Nalini Shree For Respondents : Mr.R.Subramanian, Senior Counsel for Mrs.S.Hemalatha for R1 No appearance for RR2 to 4 J U D G M E N T This second appeal is directed against the Judgment and Decree dated 23.01.2002 and made in A.S.No.15 of 2001, on the file of the learned Additional District Judge, Nagapattinam, modifying the Judgment and Decree dated 17.10.2001 and made in O.S.No.232 of 2000, on the file of the learned Additional Subordinate Judge, Nagapattinam. 2. The facts, which giving rise to the memorandum of second appeal are detailed as under: The plaintiff and the defendants are the sons and daughters of one Govindasamy Pillai. The suit properties are the ancestral and joint family properties of the plaintiff, first defendant and their father Govindasamy Pillai. The said Govindasamy Pillai had died in the year 1988 and his wife Kunjammal had pre-deceased him. Hence, https://hcservices.ecourts.gov.in/hcservices/ the plaintiff and the defendants are the legal heirs of the deceased Govindasamy Pillai. 3. The plaintiff and the first defendant are in the management of the suit properties. The plaintiff and the first defendant are, by their birth right and under a Will dated 15.02.1954, entitled to 1/3 share each over the suit properties. Besides this, the plaintiff and the defendants are each entitled to 1/5 share in their father's 1/3rd share. Thus, the plaintiff and the first defendant are each entitled to 6/15 share and the defendants 2 to 4 are each entitled to 1/15 share. Since the defendants were evading partition, the plaintiff had filed the present suit for partition and separate possession of his 6/15th share over the suit properties. 4. The first defendant had contended that a rice mill and its site had not been included in the suit as the same are belonged to joint family. Taking undue advantage of the poor vision of their father, the plaintiff had fraudulently obtained a document from him to make it appear as if he had purchased the said mill and its site from their father. After coming to know about this fact their father had sent a petition to the District Supply Officer, Thanjavur on 24.07.1986, requesting not to effect name transfer in respect of this Will in the name of plaintiff. Govindasamy Pillai had no right to execute any sale in respect of the mill and its site, which is also a part of the ancestral coparcenary property and therefore the plaintiff cannot claim any independent right over the said property. 5. In the Panchayath held on 11.07.1998, the properties were finally partitioned between the parties and accordingly a partition chit was written and signed by the plaintiff and the first defendant. As noted in the chit, A-Schedule property was allotted to the plaintiff and the B-Schedule property was allotted to the first defendant. Similarly, certain properties were also allotted to the defendants 2 to 4. Hence, the suit for fresh partition is not sustainable. The mill building and the land comprised in R.S.Nos.291/2 and 291/3 of Azhinjamangalam Village shall have to be included in the partition. 6. The defendants 2 to 4 have agreed with the claim of the plaintiff and they have also claimed each 1/15 share over the suit properties. They have also paid necessary Court fee ie.Rs.100/- for their respective shares. 7. Based on the pleadings of the parties to the suit, the trial Court had formulated as nearly as the following four issues for the better adjudication of the suit: 1. Whether the plaintiff is entitled to 6/15th share over the suit properties? 2. Whether the plaintiff is entitled to further mesne profits as prayed for? https://hcservices.ecourts.gov.in/hcservices/ 3. Whether the defendants 2 to 4 are entitled to share over the suit properties? 4. To what relief is the plaintiff entitled? 8. The plaintiff had examined himself as PW1 and during the course of his examination Exs.A1 to A7 were marked. On the other hand, the first defendant had examined himself as DW1 and during the course of his examination Exs.B1 to B6 were marked. Neither oral nor documentary evidences were adduced on behalf of the other defendants. 9. On appreciation of evidences and other materials available on record, the trial Court had passed a preliminary decree for partition in the following manner: 1. The plaintiff is allotted with 6/15 share over the suit properties. 2. The defendants 2 to 4 are allotted 3/15 share over the suit properties. 3. The allotment of properties by metes and bound will be considered in the final decree proceeding by appointment of advocate commissioner. 10. Being aggrieved by the Judgment and decree passed by the trial Court dated 17.10.2001, the first defendant had preferred the first appeal before the learned Additional District Judge at Nagapattinam on the following grounds: (a) that on 11.07.1998 a final partition was effected in the presence of Panchayatars and the properties were allotted to the plaintiff as well as to the first defendant and they are also in possession and enjoyment of their respective shares and hence there is no need for the second partition, (b) that the mill and its site measuring about 8 cents, comprised in R.S.Nos.291/2 and 291/3 are also liable to be partitioned. This property was also subjected to partition as evident from Exs.B1 and B2, (c) that the plaintiff had failed to produce any documentary evidence to show that he had purchased the mill and its site from his father, (d)that in the partition effected on 11.07.1998 the defendants 2 to 4 were also given properties as evident from Exs.B1 and B2. Since they had not objected the claim of the plaintiff, the conclusion of the trial Court that they are also entitled to get share is erroneous and that the trial https://hcservices.ecourts.gov.in/hcservices/ Court had lost sight over the fact that only for the welfare of their family, the plaintiff and the first defendant's father had acquired the share of Natesa Pillai in a suit which were tried between them. 11. On hearing both sides and on appreciation of the related materials on record, the first appellate Court has set aside the findings of the trial Court that the mill and its site measuring about eight cents, comprised in R.S.Nos.291/2 and 291/3 of Azhinjamangalam Village are not liable to be partitioned and concluded that the plaintiff and the first defendant are each entitled to 6/15 share in the suit property including the mill and its site measuring about eight cents, comprised in R.S.Nos.291/2 and 291/3 of Azhinjamangalam Village. 12. Similarly, the first appellate Court has also confirmed the findings of the trial Court that the defendants 2 to 4 are each entitled to get 3/15 share from the properties. Accordingly, the Judgment and Decree dated 17.10.2001 and made in O.S.No.232 of 2000, on the file of the learned Additional Subordinate Judge, Nagapattinam was modified by the first appellate Court. 13. Challenging the Judgment of the first appellate Court, the plaintiff has approached this Court by way of this second appeal. 14. The second appeal came to be admitted on the following substantial questions of law: "1.Whether the lower appellate Court erred in law in holding that R.S.Nos.291/2 and 291/3 (8 cents) are available for partition when they ceased to be joint family properties by virtue of the alienation made by the father in favour of the plaintiff? 2.When the sale of the said two survey numbers by the father Govindasamy Pillai in 1984, not having been questioned either by Govindasamy Pillai or by his son, the first defendant, within the period of limitation, whether the lower appellate Court erred in treating the said items as joint family properties and granting decree for partition?" 15. This second appeal hinges around the mill and the land measuring about eight cents, comprised in R.S.Nos.291/2 and 291/3 situated at Azhinjamangalam Village. Admittedly, the properties described as mill and the land measuring about eight cents have not been included in the schedule of properties for being partitioned in the suit. In the written statement, the first defendant had contended that the mill and the land are also joint family properties and as such they are liable to be partitioned. https://hcservices.ecourts.gov.in/hcservices/ 16. A contention was raised by the plaintiff before the trial Court that the mill and the land were purchased by him from his father through a sale deed and as such he became the absolute owner of the same and therefore it could not be subjected to partition as they are his exclusive properties. 17. On the other hand, the first defendant had contended that taking undue advantage of poor vision of his father, the plaintiff had played fraud and obtained fraudulent document to make it appear as if he had purchased the said properties from their father. He had also contended that their father Govindasamy Pillai was not having any exclusive right to transfer the properties in the name of the plaintiff. The contentions of the plaintiff as well as the first defendant were analysed deeply by the learned trial Judge. 18. The contention of the first defendant was however rejected by the trial Court and found that as seen from Ex.A1, Will, the mill building was in dilapidated state at the time of partition and a half of the property was allotted to Govindasamy Pillai and the other half was allotted to Natesa Pillai. It has also found that as admitted by the first defendant, in his cross-examination that in a subsequent suit, his father had purchased the other half of the property allotted to Natesa Pillai in a Court auction and thus the whole mill property came to be in possession of Govindasamy Pillai and as such he had executed a sale deed in the year 1984 in favour of the plaintiff in respect of the mill building and its site. The trial Judge has also found that the sale deed in favour of the plaintiff was not legally set aside and therefore the first defendant could not claim any right over the mill and the land and hence it could not be subjected to partition. 19. The first appellate Court had set aside this finding with an observation that the mill as well as the land are also the joint family properties of the plaintiff as well as the first defendant and hence the property must be subjected to partition. It is also found that both the plaintiff and the first defendant are each entitled to get 6/15 share in the suit property including the mill and the land and accordingly the Judgment of the trial Court was modified. 20. The finding of the first appellate Court has been vehemently objected to by the plaintiff in this appeal. 21. Mr.K.Chandramouli, learned senior counsel appearing for Mrs.K.M.Nalini Shree, learned counsel who is on record for the appellant has taken this Court through the Judgment of the trial Court as well as the first appellate Court. In this connection, he has submitted that the finding of the first appellate Court that the mill and the land, which were enjoyed by the grandfather of the plaintiff and the first defendant cannot be termed as the exclusive https://hcservices.ecourts.gov.in/hcservices/ property of the father of the plaintiff and the first defendant and that the mill and the land also form part of the joint family property and therefore liable to be partitioned is absolutely erroneous and it has not been justified by the first appellate Court. 22. Further, the learned counsel has also indicated the findings of the trial Court that the no legal action was taken to set aside the sale either during the life time of their father Govindasamy Pillai or after his death by the first defendant and therefore the sale deed in respect of the mill and the land executed by their father has become valid and genuine. 23. Further, the learned counsel has also made reference to Page Nos.11 and 12 of the Judgment of the first appellate Court, in which, it is observed that in so far as the joint family properties are concerned the father of the plaintiff can transfer his own share and he cannot transfer the properties in which the plaintiff as well as the first defendant are having their respective shares. The first appellate Court has also found that since the alleged sale deed is not a valid one, there is no necessity to cancel the document within the period of three years. 24. In this connection, the learned counsel has made reference to Sections 15, 16, 17, 18 and 19 of the Indian Contract Act, 1872. Sections 15 and 16 defines the terms "Coercion" and "Undue influence". Section 17 defines "Fraud", Section 18 defines "Misrepresentation" and Section 19 defines "Voidability of agreements without free consent". Section 19 of the Indian Contract Act, 1872 reads as follows: "19.Voidability of agreements without free consent.- When consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused. A party to a contract, whose consent was caused by fraud or misrepresentation, may, if he thinks fit, insist that the contract shall be performed, and that he shall be put in the position in which he would have been if the representations made had been true. Exception.-If such consent was caused by misrepresentation or by silence, fraudulent within the meaning of section 17, the contract, nevertheless, is not voidable, if the party whose consent was so caused had the means of discovering the truth with ordinary diligence. https://hcservices.ecourts.gov.in/hcservices/ 25. In support of his argument, the learned counsel has placed reliance upon the decision in Rajamani Ammal v. Bhoorasami, reported in AIR 1974 Madras 36 (V 61 C15). In this Case, the plaintiff was the appellant. She filed a suit for a declaration of her title to the suit properties consisting of eight items and for possession of the same from the defendants with mesne profits. The plaintiff claimed that the suit properties originally belonged to her mother Alamelu Ammal, she having purchased the same with her own funds from one Venkatachala Padayachi under a sale deed Ex.A2, dated 08.04.1935 for a sum of Rs.500/-, that the plaintiff has become the stridhana heir of her mother , and that as the plaintiff was a minor at the time of her mother's death her father Kannusami Padayachi and after his death the first defendant, her brother, had been managing the suit properties on her behalf. The plaintiff alleged that neither her father, Kannusami Padayachi nor her brother, the first defendant had any right or interest over the suit properties, but that taking advantage of the fact that the plaintiff had just attained majority, the first defendant obtained a registered release deed Ex.A7 dated 07.09.1957, by exercise of coercion and undue influence. She had also contented that the alienations on the basis of the alleged release deed made by the first defendant in favour of the defendants 2 and 3 are not valid and binding on her. 26. On the question as to whether the release deed Ex.A7 is vitiated by misrepresentation, undue influence and coercion, the trial Court expressed the view that the same is void and inoperative as it has been brought about by the first defendant by exercising undue influence on the plaintiff when she was under his charge without any independent advice. 27. On the third question the trial Court held that the suit as framed is not barred by limitation as in its view neither Article 56 nor Article 58 of the Limitation Act of 1963. On the appeal before this Court the Hon'ble Mr.JUSTICE RAMANUJAM has held that “I am, however, inclined to agree with the view taken by the lower appellate Court that the suit is barred by limitation. The lower appellate Court has taken the view that even if the document is vitiated by undue influence, still the said document is only voidable and not void ab initio and that, therefore, the plaintiff must have the document set aside within three years from the date of document. Section 19-A of the Contract Act says that when consent to an agreement is caused by undue influence, such an agreement is a contract voidable at the option of the party whose consent was so caused and such contract may be set aside either absolutely or upon such terms and conditions as the Court may deem just. If Ex.A7 is held to be merely voidable it is necessary for the document to be set aside within a period of three years referred to in Article 59 of the Limitation Act, and a mere suit for declaration that the instrument https://hcservices.ecourts.gov.in/hcservices/ is void and ineffective will not lie (Vide AIR 1934 All 507, 511). In cases where the instruments are voidable at the instance of a party, a suit to set aside or cancel the document must be filed within three years from the date of knowledge, that is, the date of the document (Vide Ramachandra v. Laxman, AIR 1945 PC 54 and Someshwar Dutt v. Tribhawan Dutt, AIR 1934 PC 130).” 28. In this connection, the learned counsel would submit that the first defendant had not taken any steps to set aside the sale deed, which is executed in favour of the appellant/plaintiff by their father. He has also added that since the first defendant had failed to initiate any legal action to set aside the sale within the stipulated period of three years as contemplated under Article 59 of the Limitation Act, it is not open for him at this stage that too in the second appeal to contend that the sale deed is void ab initio. 29. Further, the learned counsel has also contended that the sale deed, which was executed by the father of the appellant/plaintiff in his favour is only a voidable document and not void ab initio. In support of his arguments, he has also made reference to Article 109 of the Limitation Act. In this connection, he would submit that in a Hindu joint family, if the father happened to alienate the ancestral property the alienation of the father could have been questioned within the stipulated period of 12 years. Having allowed to expire the prescribed period it cannot be questioned in the later stage, as Article 109 of the Limitation Act operates as bar. Article 109 of the Limitation Act contemplates that by a Hindu governed by Mithakshara law to set aside his father's alienation of ancestral property the period of limitation is 12 years. The period of limitation is reckoning from the date when the alienee takes possession of the property. 30. In support of his arguments, he has placed reliance upon the decision in Sudarshan Prasad v. Radha Kishun Ram, reported in AIR 1982 Allahabad 218. In this case, it is held that in a suit to set aside sale deed of joint Hindu family on ground that it was without legal necessity, plaintiffs pleaded that they first came to know of sale deed when alienees objected their attempt to construct wall on suit property, the lower Courts gave concurrent finding that the alienees were in possession of the property since the date of sale deed. Under this circumstance, it was held that in such a case, the Article applicable is 109 and not 59 for purposes of limitation, and as the suit was filed after 12 years when alienee took possession of property, it was barred by limitation. 31. Referring to the proviso to Article 109 of the Limitation Act as well as the Article 59, the learned counsel has urged before this Court that the contention of the first respondent/first defendant has definitely been barred by limitation and hence the https://hcservices.ecourts.gov.in/hcservices/ finding of the first appellate Court that the mill and the land measuring eight cents, comprised in R.S.Nos.291/2 and 292/3 are also liable to be partitioned, shall have to be set aside. 32. On the other hand, Mr.R.Subramanian, learned senior counsel appearing for Mrs.S.Hemalatha, learned counsel who is on record for the first respondent/first defendant has contented that though the appellant/plaintiff had contended that their father had executed the sale deed in respect of the rice mill and the land and that he had become the owner of the said property, he had not chosen to produce any title deed. He has also argued that the appellant/plaintiff's specific admission is that the mill and the land was purchased by their father and in that case the mill and the land could have been purchased from the nucleus of the joint family properties and as such the property viz.mill and the land shall form part and parcel of the joint family property and therefore liable to be partitioned. 33. Admittedly, the appellant/plaintiff has not produced title deed, which is said to have been executed in his favour by his father. However, the transfer of the mill and the land comprised in R.S.Nos.291/2 and 291/3 by the father in favour of the appellant/plaintiff has been admitted by the first respondent/defendant. He has raised this contention in his written statement before the trial Court. When a specific fact has been admitted, it need not be proved through a documentary evidence. Even in accordance with the contentions of the first respondent/first defendant, the document was obtained from their father by the appellant/plaintiff by undue influence, coercion or by playing fraud. Be it as it may. The documents can only be termed as voidable one and if at all the first respondent/first defendant wanted to set aside the sale it should have been done within the stipulated period of twelve years as contemplated under Article 109 of the Limitation Act. As the first respondent/first defendant being a Hindu governed by Mithakshara law, the alienation of their father in respect of the ancestral property should have been set aside within the period of twelve years from the date of passing of possession of the mill and the land to the appellant/plaintiff. 34. Having regard to the above facts, this Court is of considered view that the Judgment of the first appellate Court dated 23.01.2002 and made in A.S.No.15 of 2001 is liable to be set aside and the Judgment and decree of the trial Court dated dated 17.10.2001 and made in O.S.No.232 of 2000, on the file of the learned Additional Subordinate Judge, Nagapattinam is liable to be confirmed. 35. In the result, this Second Appeal is allowed and the Judgment and Decree dated 23.01.2002 and made in A.S.No.15 of 2001, on the file of the learned Additional District Judge, Nagapattinam is set aside and the Judgment and Decree dated 17.10.2001 and made in https://hcservices.ecourts.gov.in/hcservices/ O.S.No.232 of 2000, on the file of the learned Additional Subordinate Judge, Nagapattinam is confirmed. No costs. Sd/ Asst. Registrar /true copy/ Sub Asst.Registrar krk To: 1.The Additional District Judge, Nagapattinam. 2.The Additional Subordinate Judge, Nagapattinam. 3. The Section Officer, VR Section, High Court, Chennai 1 cc To Mr.A.Muthukumar, Advocate, SR.24034 Order in S.A.No.763 of 2002 GV (CO) RH (2.5.11) https://hcservices.ecourts.gov.in/hcservices/