IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:22.07.2011 CORAM: THE HON'BLE MR.JUSTICE T.MATHIVANAN A.S.No.716 of 2008 and M.P.Nos.1 of 2008 & 1 of 2009 1.K.Indirani 2.K.Umashankar 3.K.Udayakumar 4.K.Venkatakrishnan 5.J.Thilaga 6.J.Chandrasekar ..Appellants/Defendants 1 to 4, 6 & 7 Vs. 1.K.Manjula 2.K.S.Sumathi 3.D.Malathi 4.K.Jayalakshmi .. Respondents/Plaintiffs & 5th defendants Prayer : Appeal filed under Section 96 of the Code of Civil Procedure, against the Judgment and Decree dated 30.06.2008 and made in O.S.No.9491 of 2006, on the file of the learned VII Additional Judge, City Civil Court, Chennai. For Appellants : Mr.S.Ramanarayanan for M/s.Sampath Kumar Associates For Respondents : Mr.R.Subramanian for Mrs.Hemalatha for R1 to R3 R4-Remained exparte J U D G M E N T The appellants are the defendants 1 to 4, 6 and 7 in the suit in O.S.No.9491 of 2006, on the file of the learned VII Additional Judge, City Civil Court, Chennai. 2. Impugning the Judgment and Decree dated 30.06.2008, granting preliminary decree that the plaintiffs are entitled to 3/9th share in the plaint schedule property, the appellants have preferred this appeal before this Court. https://hcservices.ecourts.gov.in/hcservices/ 3. The facts, which absolutely necessary for the disposal of this appeal are as under: The legal character of the parties to the suit need not be changed and let them be referred as it is in the suit. 3.1. The first defendant is the mother of the plaintiffs, whereas the defendants 2 to 4 are their brothers and the 5th defendant is their sister. The defendants 6 and 7 are the legal heirs of their deceased brother Jeevarathinam. Their father Late.K.Rangaswamy was employed in the State Bank of India as Branch Manager. He got allotment of property in Plot No.21, Door No.42 (Old Door No.20), State Bank of India Officer's Colony, 2nd Street, Perambur High Road, Chennai-600 012 by the State Bank of India, Madras Circle Supervising Staff Co-operative Building Society Ltd., Chennai-600 001 (hereinafter may be referred to as the Society) and was in possession and enjoyment of the same. He died intestate on 06.09.1981 and left the property in land and building in the aforestated plot to be succeeded by his legal heirs. 3.2. Since the first defendant is the nominee of their father Late.K.Rangaswamy, the Society had issued a Sale Deed dated 14.07.1982 in the name of the first defendant and however the property is for the benefit of the entire family members viz. the legal heirs of Late.K.Rangaswamy. The plaintiffs and the defendants as the legal heirs of Late.K.Rangaswamy are entitled to the suit property and as such they are entitled to get their respective shares viz. each 1/9th share (plaintiffs 1 to 3 and the defendants 1 to 5 each entitled to get 1/9th share, whereas the defendants 6 and 7 are jointly entitled to get 1/9th share) since their respective shares are governed and ascertained as per the Hindu Succession Act, 1956. 3.3. The third plaintiff is in possession of the part of the suit property and is permanently residing there in exercise of her right to her share in the suit property. The plaintiffs as Class-I legal heirs and as daughters of the deceased Late.K.Rangaswamy are entitled to 1/9th share in the suit schedule property. 4. The fifth defendant had not chosen to contest the suit as she remained exparte before the Trial Court. The defendants 1 to 4, 6 and 7 have alone filed their written statement and contended that the plaint is liable to be rejected under Order VII Rule 11 of the Code of Civil Procedure as there is no cause of action for filing the suit and apart from this they have also contended that the suit is barred by limitation. The pleadings are to be struck down under Order VI Rule 16 of the Code of Civil Procedure especially under Order VI Rule 16(a) and Order VI Rule 16(c). https://hcservices.ecourts.gov.in/hcservices/ 4.1. Mr.K.Rangaswamy had passed away on 06.09.1981. At the time of his death, he had no title in the suit schedule property. He had only a right to get the property from the Society by virtue of allotment. Even during his lifetime, he could not have transferred the property to anyone under Section 6(e) of the Transfer of Property Act. Before his death, he had nominated his wife Smt.K.Indirani, who is the first defendant, and by virtue of her nomination she became the shareholder of the Society. The sale deed was registered by the Society only on 14.07.1982 in the name of the first defendant. The suit was filed on 02.12.2006. Hence, it is thus clear that the suit schedule property never intended for the benefit of the family. 4.2. The nomination is only in respect of share so as to enable the first defendant to become a member of the Society. The question of co-ownership does not arise in this case as the first defendant became the sole and absolute owner of the suit schedule property from 14.07.1982. 4.3. The 3rd plaintiff was never in possession as co-owner of the suit schedule property. The facts remain is that she came to be a tenant in respect of the portion of the suit schedule property for a paltry sum of Rs.300/- as rent. The first defendant was forced to file a petition in R.C.O.P.No.1142 of 2006 against her on the ground of wilful default. In fact, the first defendant had executed a settlement deed dated 22.05.2006 in favour of the defendants 2 to 4 and 7 in respect of the suit schedule property and hence they can deal with the property in any fashion, they like. 4.4. Even the sale deed was executed by the Society only after the first defendant had remitted a sum of Rs.2,852/-. Barring the first defendant, nobody had paid any amount to any Government Department. In any event, the first defendant had perfected her title by adverse possession with regard to the suit schedule property. 5. Based on the pleadings of the parties to the suit, the Trail Court had formulated two issues as detailed hereunder: 1. Whether the plaintiffs are entitled to get their separate share as prayed for in the suit? 2. To what relief are they entitled? In order to substantiate their respective cases both the plaintiffs and the defendants 1 to 4, 6 and 7 were put on trail. The first and third plaintiffs had examined themselves as P.W.1 and P.W.2 respectively. During the course of their examination Exs.A1 to A16 were marked. On the other hand, the second defendant was examined as D.W.1 and during the course of his examination Exs.B1 to B17 were marked. https://hcservices.ecourts.gov.in/hcservices/ 6. On appraising the evidences both oral and documentary the Trail Court had proceeded to pass a preliminary decree on 30.06.2008 with a finding that the plaintiffs are entitled to get their 3/9th share in the suit schedule property. 7. Now the preliminary decree has been challenged by the defendants 1 to 4, 6 and 7 in this appeal. 8. Heard Mr.S.Ramanarayanan, learned counsel for appellants/defendants 1 to 4, 6 and 7 and Mrs.S.Hemalatha, learned counsel for Mr.R.Subramanian, learned counsel on record for the respondents 1 to 3. 9. The present appeal seems to have been based on the following grounds: i. The first defendant being the wife of Late.K.Rangaswamy is the member of the Society. ii. Her nomination is only in respect of membership and not in respect of the property. iii. On the date of death of Mr.K.Rangaswamy, he was not the owner of the suit schedule property and as such he cannot bequeath his right to sue for specific performance in favour of any one. iv. The plaintiffs ought to have filed necessary suit for setting aside the sale deed 14.07.1982 if it is found to be illegal. v. No partition suit could be filed by the plaintiffs without setting aside the said sale deed. vi. Suit for partition could be filed only on the following two circumstances: a. When a property is inherited by heirs, who became co-owners, b. When the property has been purchased jointly by two or more persons, vi. To adjudge the disputes between the parties, the principles envisaged under Section 6(e) of the Transfer of Property Act is necessarily to be considered. vii. The sale deed was executed on 14.07.1982. The plaintiffs have filed the suit on 02.12.2006 ie.after 24 years and 5 months. Hence, the suit is hopelessly barred by limitation. https://hcservices.ecourts.gov.in/hcservices/ viii. The suit could not be filed to set aside the settlement executed by the first defendant in favour of the defendants 2 to 4 and 7. 10. Ex.A1 is the sale deed dated 14.07.1982 in respect of the suit schedule property executed by the Society, represented by its Vice-President R.Rajabather in favour of Smt.K.Indirani, wife of Late.K.Rangaswamy, who is the first defendant. It appears from the document that Late.K.Rangaswamy was the member of the Society from 06.12.1962 and his membership number is 26. It also appears that the first defendant K.Indirani is the nominee and legal heir of Late.K.Rangaswamy. It is seen from this document that Late.K.Rangaswamy had availed a loan of Rs.25,000/- from the Society for the purpose of putting up construction in the Plot No.21, which is in dispute in this suit. 11. In accordance with the terms and conditions of the articles of the agreement dated 12.02.1967 executed by him in favour of the Society Late.K.Rangaswamy had repaid the said amount in full to the Society and therefore the Society had conveyed and assigned the schedule mentioned property under the above said sale deed. 12. Ex.A2 is the certificate of death in respect of Late.K.Rangaswamy. It reveals that the date of death of Late.K.Rangaswamy is 06.09.1981. It is apparent that since K.Rangaswamy had passed away on 06.09.1981, the Society happened to execute the sale deed under Ex.A1 in favour of the first defendant K.Indirani, who is none other than the wife and nominee of Late.K.Rangaswamy. 13. The expression 'Nominee', in Black's Law Dictionary, 6th Edition, at Page No.1050, has been defined as under: “One who has been nominated or proposed for an office. One designated to act for another to his or her place.” 14. In this backdrop, Mr.S.Ramanarayanan, learned counsel for the defendants has contended that the allottee viz.Late.K.Ramaswamy had died on 06.09.1981 even prior to the registration of the sale deed under Ex.A1 (Ex.B4). He has also submitted that after his demise, the sale deed was registered on 14.07.1982 by the Society in favour of the first defendant as she only had paid a sum of Rs.2,852/- towards the members loan account. Ex.B3 is the receipt issued by the Society to that effect. In this receipt, it has been worded as “Received from Mrs.K.Indirani a sum of Rs.2,852 (Rupees Two thousand eight hundred and fifty two only) in respect of the following Members Loan Account for full settlement.” The details given in the receipt has been shown in the tabular column given below: https://hcservices.ecourts.gov.in/hcservices/ S. No. Name of the member/Scheme Principa l Rs. P. Interest Rs. P. Other Charges Insu ranc e Rs. Rs P. Rs P Total Rs. P 1. O/A.K.Rangaswamy Perambur, SB/BW 283532 278 0 -- 12 -- 60/- 2852 -- From Ex.B3 it is crystal clear that a sum of Rs.2,852/- was collected from the first defendant K.Indirani in respect of the members loan account of Late.K.Rangaswamy, Perambur, SB/BW 283532. In this connection, the learned counsel for the plaintiffs has raised a question as to whether the deceased K.Rangaswamy was the owner of the property at the time of his death? 15. In Paragraph No.6 of the plaint, the plaintiffs have stated that after the death of their father Late.K.Rangaswamy, the Society had issued a sale deed dated 14.07.1982 in the name of the first defendant as she was the nominee and however the property is for the benefit of the entire family members viz. the legal heirs of Late.K.Ragaswamy. 16. In fact, the learned counsel for the defendants has given different dimension to the expression 'nominee' and submitted that the first defendant was nominated for the membership of her husband Late.K.Rangaswamy to receive the sale deed in her favour from the Society. He has also added that since she being the nominee of her husband and received the sale deed in her favour in respect of the suit schedule property from the Society, she had become the absolute owner of the property and therefore the plaintiffs are not entitled to get any share much less 3/9th share collectively. 17. The learned counsel for the defendants has also maintained that Ex.B3 receipt would go long way to establish the fact that the first defendant had paid a sum of Rs.2,852/- towards the membership fee. He has also adverted to that she was recognised by the Society as its member and only under this circumstance the sale deed under Ex.A1(B4) was executed by the Society in favour of the first defendant. 18. The learned counsel for the defendants would further submit that it is not possible to discern that the plaintiffs' respective share has been ascertained as per the Hindu Succession Act, 1956. He has also maintained that the question of inheritance would come into operation only if the deceased viz. Late.K.Rangaswamy had title to the property or not otherwise. https://hcservices.ecourts.gov.in/hcservices/ 19. During the course of his arguments, the learned counsel has also made reference to Section 6(e) of the Transfer of Property Act, 1882, which enacts as follows: 6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,- (e) A mere right to sue cannot be transferred; 20. The learned counsel has also adverted to that since the first defendant being the absolute owner of the property had executed a settlement deed (Ex.B13) in favour of the defendants 2 to 4 and 7 on 22.05.2006 and therefore the suit filed by the plaintiffs, without seeking for cancellation or setting aside the above settlement, is not maintainable. 21. In sofar as this portion of argument is concerned, it has become imperative on this Court to refer the evidence of P.W.1 in her chief-examination. In Paragraph No.11 of her proof affidavit, she would state that the first defendant is not the absolute owner of the suit schedule property and as one of the Class-I legal heir of Late.K.Rangaswamy, the first defendant is having only 1/9th share in the suit schedule property and as such the execution of settlement deed dated 22.05.2006 (Ex.B13) registered as document No.2073 of 2006, at the office of the Sub-Registrar of Purasawalkam by the first defendant in favour of the defendants 2 to 4 and 7 is invalid and not binding on the plaintiffs and it will not take away the right of the plaintiffs for claiming partition of the suit schedule property. She has also deposed that the first defendant is having only 1/9th share in the suit schedule property and she therefore can deal only with her 1/9th share in the suit schedule property and hence the settlement deed dated 22.05.2006 is invalid and not binding on the plaintiffs. 22. On coming to her cross-examination, a suggestion was put to P.W.1 when she was in the witness box stating that her mother first defendant did not execute settlement deed in favour of the defendants 2 to 4 and 7 for which P.W.1 had replied that she did not know about the details of the settlement. In this regard, it is pertinent to note here that the defendants alone had contended in their written statement that on 22.05.2006 the first defendant had executed a settlement deed in favour of the defendants 2 to 4 and 7 and without seeking the relief of setting aside the document or cancelling the said settlement deed, the suit is not maintainable, but entirely contrary to the own pleadings. 23. During the course of cross-examination of P.W.1, the learned counsel for the defendants before the Trial Court had put a suggestion that the first defendant had not executed the settlement deed. This kind of suggestion would go to expose that the learned https://hcservices.ecourts.gov.in/hcservices/ counsel has not properly understood the intrinsic value of the case of the defendants. 24. Ex.B13, the alleged settlement deed is the registered document. It is the settled principle of law that a person, who does not have either any interest or title over a particular property, cannot transfer it in favour of another person. It is also important to note here that sub-clause (a) to Section 6 of the Transfer of Property Act, 1882 contemplates that the chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred. In Sub-clause (d) also it is contemplated that all interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. 25. With regard to the arguments advanced on behalf of the defendants, a core question has been arisen as to whether the first defendant having obtained a document much less a sale deed in respect of the suit property in her favour can be construed as the real owner of the property? If there is any legal evidence to show that she is the absolute owner of the suit property, there will not be any impediment to transfer the property by way of Ex.B13, settlement deed, in favour of the defendants 2 to 4 and 7. 26. When she is not the absolute owner of the suit schedule property, what will be the value and effect of Ex.B13 settlement deed? Will it be construed as void ab initio document as contemplated under Section 31 of the Specific Relief Act, 1963? In this connection, this Court would like to place reliance upon a decision reported in Prem Singh and Others vs. Birbal and Others, (2006) 5 SCC 353. In this case, while writing the Judgment on behalf of the Division Bench, His Lordship the Hon'ble Mr.JUSTICE S.B.SINHA at Paragraph Nos.14 to 16 has held as under: “14. A suit for cancellation of instrument is based on the provisions of Section 31 of the Specific Relief Act, which reads as under: “31. When cancellation may be ordered.-(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled. (2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy https://hcservices.ecourts.gov.in/hcservices/ of the instrument contained in his books the fact of its cancellation.” 15. Section 31 of the Specific Relief Act, 1963 thus, refers to both void and voidable documents. It provides for a discretionary relief. 16. When a document is valid, no question arises of its cancellation. When a document is void ab initio, a decree for setting aside the same would not be necessary as the same is non est in the eye of the law, as it would be a nullity.” 27. Ex.A5 is the legal notice dated 01.02.2006 issued on behalf of the plaintiffs to the defendants and thereby they were called upon to effect a partition of the suit schedule property and allot 3/9th share in favour of the plaintiffs. Ex.A7 is the reply sent by the defendants repudiating the claim of the plaintiffs. Ex.A8 is the rejoinder issued on behalf of the plaintiffs to the defendants and thereby the plaintiffs had reiterated their claim of partition. Ex.A16 is the certified copy of the petition in R.C.O.P.No.1142 of 2006. From this document, it appears that this petition was filed by the first defendant against the third plaintiff D.Malathi under Section 10(2)(i) of Tamil Nadu Buildings (Lease and Rent) Control Act seeking for eviction from the petition property on the ground of wilful default. 28. In this connection, D.W.1 in his cross-examination has admitted that in the year 2006, the plaintiffs had issued a legal notice through their counsel claiming partition. Pertaining to this answer, two suggestions were made to him by the learned counsel for the plaintiffs in the Trial Court, for which D.W.1 had answered (i) it is not correct to state that the first defendant had initiated R.C.O.P. proceedings against the third plaintiff only after the receipt of the notice from the plaintiffs claiming partition and (ii) it is not correct to state that Ex.B13, settlement deed, was executed only after the receipt of the notice in the year 2006. Another two suggestions were also put to D.W.1 during the course of his cross- examination, for which, he had answered as follows: i. It is not correct to state that Ex.B13 settlement deed was not valid and it would not curtail the rights of the plaintiffs over the suit schedule property, and ii. It is not correct to state that Ex.B13 was fabricated only to defeat the rights of the plaintiffs. 29. During the course of his arguments, the learned counsel for the defendants has drawn the attention of this Court to Ex.B16. It is seen from this document that it is the form of return for small estates where a grant of representation is not required and exemption from Estate Duty is claimed by reason of the smallness of the estate. In this document, in the Annexure column, it is stated as Late Shri https://hcservices.ecourts.gov.in/hcservices/ K.Rangaswamy's Estate Duty Assessment, date of death is 06.09.1981. It further reads as follows: Shri K.Rangaswamy was the Branch Manager of the State Bank of India, Hospet Branch. He had a sudden end by Heart- attack. He was 57 years old. He was a permanent resident of Madras and had a short posting at Hospet. (say about one month or so.) He died intestate. He had no ancestral properties. All his estates were self acquired. He left the following members of his family who are his legal heirs: Wife : Mrs.K.Indirani, aged 54 years Sons : 1. Jeevarathnam.K Assistant – S.B.I., Mount Rd. Madras. (36) 2. Umasankar.K Assistant – BOBL., Mount Rd. Madras. (33) 3. Udayakumar.K Assistant – S.B.I. Madras Main Br. Mds. (29) 4. Venkatakrishnan.K Not yet employed. (20 years) Daughters: 1. K.Jayalakshmi Age 34-married to Sh.Koteswaran, Head-Cashier, S.B.I.Chingleput, 2. K.Manjula Age 31-married to Sh.Mahesh- Mahendra-Income-tax department, Poona, 3. K.Sumathi Age 25 years, unmarried, 4. K.Malathi Age 23 years, un-married, Under the caption of immovable properties, it is stated as follows: House No.20, State Bank Officer's Colony, Perambur High Road, Madras-600 012. Readily built house was allotted to Mr.K.Rangaswamy by State Bank Co-operative Housing Society without transferring the title deeds in his favour. Because, he should have liquidated the housing loan fully. In this connection, please also refer to my previous letters dated 11.02.1983 addressed to you which states that Shri.K.Rangaswamy was not absolutely holding legal title on that immovable property. Because, he was liquidating partly towards the housing loan when he was alive. At the time of his death, Shri K.Rangaswamy was indebted a sum of Rs.2,852 towards Housing Society. Hence, the Co-operative Society was not given to transfer deed/sale deed in favour of Shri K.Rangaswamy. On 24.02.1982, Smt.K.Indirani had liquidated the remaining balance and was holding absolute title deeds only after 6th September, 1981. In other words, Shri K.Rangaswamy was not having any power to transfer or sale or mortgage his house property due to above prevailing circumstances. Hence, legally, you should not compute while assessing his property (House). https://hcservices.ecourts.gov.in/hcservices/ 30. When D.W.1 has spoken about this document, during the course of his cross-examination, he would depose that Ex.B16 is related to payment of estate duty. In this connection, he would