1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 29.03.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SA (MD) Nos.113 and 112 of 2011 and MP(MD)No.1 of 2011 1.Nagomi 2.Sathuraj 3.Simsi 4.Pelsi 5.Ganadoss 6.Ramani 7.Vasantha .. Appellants/Plaintiffs in SA.No.113/2011 .. Appellants/Defendants in SA.No.112/2011 Vs. 1.Mabel 2.Pushparaj .. Respondents/Defendants in SA.No.113/2011 1.Mabel 2.Pushparaj 3.Rajaian .. Respondents/Plaintiffs in SA.No.112/2011 Second Appeals filed under section 100 of CPC against the Judgment and decree dated 17.03.2007 passed in Appeal Suit Nos.83 and 84 of 2003 by the Sub Court, Kuzhithurai reversing the Judgment and decree dated 24.11.2003 passed in Original Suit No.215 and 221 of 1997 by the Principal District Munsif Court, Kuzhithurai. For Appellants : Mr.H.Thayumana Samy for Mr.S.Xavier Rajini (both appeals) For RR – 1 & 2 : Mr.Mr.K.Sreekumaran Nair (both Appeals) For R – 3 : No appearance (SA.No.112/2011) COMMON JUDGMENT These second appeals have been preferred against the Judgment and decree passed in Appeal Suit Nos.83 and 84 of 2003 by the Sub Court, Kuzhithurai, wherein the Judgment and decree passed in Original Suit Nos.215 and 221 of 1997 by the Principal District Munsif Court, Kuzhithurai are reversed. https://hcservices.ecourts.gov.in/hcservices/ 2 2. The father of the appellants in Second Appeal No.113 of 2011 as plaintiff has instituted Original Suit No.215 of 1997 on the file of the trial Court for the reliefs of partition of his half share and separate possession, wherein the respondents have been shown as defendants. 3. In the plaint filed in Original Suit No.215 of 1997 it is averred that the suit property is originally belonged to one Nadankannu S/o. Raman Nadar and he sold the same in favour of Rajayyan and Mabel under a registered sale deed dated 07.11.1985. On 31.03.1997 the said Rajayyan has sold his half share in the suit property in favour of the plaintiff. The defendants are having the remaining half share. But the defendants are not amenable to have amicable partition. Under the said circumstances the present suit has been filed for the reliefs sought for in the plaint. 4. In the written statement filed on the side of the defendants it is averred that the document which has been executed on 07.11.1985 is not a sale deed and the same has been executed as a sale deed only for the purpose of registration. The father of the first defendant has given the entire suit property as 'sridhanam' to the first defendant. The sale deed dated 31.03.1997 relied upon by the plaintiff is not correct. The first defendant is the absolute owner of the suit property and the marriage between the first defendant and Rajayyan has taken place on 13.11.1985. There is no merit in the suit and the same deserves dismissal. 5. The respondents 1 and 2 in Second Appeal No.112 of 2011 as plaintiffs have instituted Original Suit No.221 of 1997 for the relief of permanent injunction, wherein the deceased father of the appellants and one Rajayyan have been shown as defendants. 6. In the plaint it is averred that the suit property is originally belonged to one Nadankannu and he is the father of the first plaintiff and he executed a sale deed in favour of the first plaintiff and her proposed husband on 07.11.1985. Even though the sale deed dated 07.11.1985 has been executed in the names of both, the first plaintiff has alone become full owner of the suit property. The first defendant has executed a sale deed in favour of the second plaintiff in respect of 15 cents of land on 13.01.1997. The first plaintiff is having two children and the first defendant has no manner of right, title and interest over the suit property. On 25.05.1997 the defendants 1 and 2 have made arrangements to disturb the peaceful possession and enjoyment of the plaintiffs. Under the said circumstances the present suit has been instituted for the relief sought for in the plaint. 7. In the written statement filed on the side of the second defendant it is averred that the present suit is not legally maintainable. The plaintiffs have suppressed so many things. The second defendant as plaintiff has instituted Original Suit No.215 of 1997 on the file of this Court for the https://hcservices.ecourts.gov.in/hcservices/ 3 purpose of getting the reliefs of partition and separate possession. It is true that the first defendant is the husband of the first plaintiff. But it is false to say that the original owner of the suit property has executed the sale deed dated 07.11.1985 only in favour of the first plaintiff and the same has been jointly executed in the names of the first plaintiff and first defendant and thus, both have become absolute owners. On 31.03.1997 the first defendant has sold half of the suit property in favour of the second defendant and there is no merit in the suit and the same deserves to be dismissed. 8. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues in both the suits and after analysing both the oral and documentary evidence has decreed Original Suit No.215 of 1997 and dismissed Original Suit No.221 of 1997. Against the Judgment and decree passed by the trial Court, Appeal Suit Nos.83 and 84 of 2003 have been preferred on the file of the first appellate Court. 9. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed both the appeals and thereby set aside the Judgment and decree passed by the trial Court in both the suits and ultimately dismissed Original Suit No.215 of 1997 and decreed Original Suit No.221 of 1997. Against the Judgment and decree passed by the first appellate Court, these second appeals have been preferred. 10. As agreed by the learned counsel appearing on either side, these second appeals are disposed of on merits at the stage of admission. 11. In Second Appeal Nos.113 and 112 of 2011 the following common substantial questions of law have been raised for consideration: (a) Whether the first appellate Court is right in reversing the Judgment when there is a question, there are two or more co-owners of immovable property legally competent to entitle his half share of such property as per the transfer of property Act section 44? (b) Whether Ex.A1 sale deed dated 31.03.1997 is an out right sale deed as alleged by the plaintiff in O.S.No.215 of 1997 or a Sridhana gift as alleged by the plaintiff in O.S.No.221 of 1997? (c) Whether the first appellate Court is right in decreeing the suit in O.S.No.221 of 1997 without asking declaration of title it is permissible under law? 12. Since common questions of law and facts are involved in both the second appeals, common Judgment is pronounced. 13. It is an admitted fact that Original Suit No.215 of 1997 has been instituted stating that the suit https://hcservices.ecourts.gov.in/hcservices/ 4 property is originally belonged to one Nadakannu Nadar and he is the father of the first defendant viz., Mabel and he executed a sale deed dated 07.11.1985 in favour of the first defendant and her husband by name Rajayyan and both of them have become absolute owners of the suit property and subsequently the said Rajayyan has sold his half share in the suit property on 31.03.1997 in favour of the plaintiff and thus the plaintiff has become owner of half share of the suit property. Since the defendants are not amenable to have amicable partition, the present suit has been instituted for the reliefs sought for therein. 14. It is also equally an admitted fact that Original Suit No.221 of 1997 has been instituted stating that the suit property is originally belonged to the father of the first plaintiff by name Nadankannu Nadar and he executed a sale deed dated 07.11.1985 in favour of the first plaintiff and her husband. But even though it is stated as a sale deed, the real transaction is nothing but 'sridhanam' transaction and the suit property has been given absolutely to the first plaintiff and thus, the first plaintiff has become absolute owner of the suit property and in which her husband by name Rajayyan who has been shown as first defendant is not having any manner of right, title and interest and he has erroneously created a sale deed in favour of the second defendant and further the first plaintiff has sold a portion of the suit property in favour of the second plaintiff and since the defendants have been making arrangements to disturb the peaceful possession and enjoyment of the plaintiffs the present suit has been instituted for the relief of permanent injunction. 15. As stated earlier, the trial Court has decreed Original Suit No.215 of 1997 and dismissed Original Suit No.221 of 1997. But the first appellate Court has dismissed Original Suit No.215 of 1997 and decreed Original Suit No.221 of 1997. 16. The learned counsel appearing for the appellants in both the appeals has sparingly contended that the suit property is originally belonged to Nadankannu Nadar and he executed a sale deed dated 07.11.1985 in favour of the first defendant viz., Mabel and her husband Rajayyan and thus both of them have become absolute owners of the suit property and subsequently on 31.03.1997 the said Rajayyan has sold his half share in favour of the plaintiff in Original Suit No.215 of 1997 and since the defendants therein are not amenable to have amicable partition, Original Suit No.215 of 1997 has been filed for the reliefs of partition and separate possession and the trial Court has rightly decreed the suit. But the first appellate Court has erroneously dismissed the same and therefore, the Judgment and decree passed by the first appellate Court in respect of Original Suit No.215 of 1997 are liable to be set aside and likewise, the defendants in Original Suit No.215 of 1997 as plaintiffs have instituted Original Suit No.221 of 1997 for the relief of partition and the trial Court has rightly dismissed the same. But the first appellate court has erroneously decreed the same and therefore, the Judgment and decree passed by the first appellate Court in respect of Original Suit No.221 of 1997 are also liable to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 5 17. Per contra, the learned counsel appearing for the respondents in both the appeals has also equally contended that the suit property is originally belonged to Nadankannu Nadar and the first plaintiff in Original Suit No.221 of 1997 is nothing but his daughter and the first defendant in Original Suit No.221 of 1997 is his son-in-law. The marriage between the first plaintiff and first defendant has been performed on 13.11.1985 and in lieu of 'sridhanam' the original owner of the suit property by name Nadankannu Nadar has executed a sale deed dated 07.11.1985 in favour of the first plaintiff and first defendant and even though it has been styled as a sale deed the same has been executed only with a view to give 'sridhanam' to first plaintiff and thus, the first plaintiff has alone become absolute owner of the suit property and in which the first defendant viz., Rajayyan, husband of the first plaintiff has had no right, title and interest. Under the said circumstances the plaintiff in Original Suit No.215 of 1997 cannot claim any right over the suit property in pursuance of the sale dated 31.03.1997 which stands in his name and the trial Court without considering the available evidence on record has erroneously decreed Original Suit No.215 of 1997 and erroneously dismissed Original Suit No.221 of 1997. But the first appellate Court has rightly reversed the Judmgment and decree passed by the trial Court and therefore, the Judgment and decree passed by the first appellate Court do not warrant interference. 18. On the basis of the rival submissions made by either counsel, the following points have become emerged apart from the substantial questions of law raised in both the appeals. (a) Whether the original owner of the suit property by name Nadankannu Nadar has executed the sale deed dated 07.11.1985 in favour of the first plaintiff and first defendant in Original Suit No.221 of 1997 and thereby they derived equal rights over the suit property? (b) Whether the sale deed dated 07.11.1985 even though it is styled as a sale deed, the same has been executed in lieu of 'sridhanam' exclusively in favour of the first plaintiff in Original Suit No.221 of 1997? 19. The sum and substance of the contention of the plaintiff in Original Suit No.215 of 1997 is that as per sale deed dated 07.11.1985 the purchasers namely the first plaintiff and first defendant in Original Suit No.221 of 1997 have become absolute owners of the suit property and each of them is having equal moiety. 20. The stand taken on the side of the plaintiffs in Original Suit No.221 of 1997 is that even though the sale deed dated 07.11.1985 has come into existence the same is not an actual sale deed and the same has been executed in lieu of 'sridhanam' in favour of the first plaintiff in Original Suit No.221 of 1997. https://hcservices.ecourts.gov.in/hcservices/ 6 21. It is an admitted fact that the suit property is originally belonged to Nadankannu Nadar who is none other than the father of the first plaintiff in Original Suit No.221 of 1997. It is also equally an admitted fact that he executed the sale deed dated 07.11.1985 which has been marked as Ex.A1. As stated earlier, the main point to be decided in the present lis is as to whether Ex.A1 (marked in Original Suit No.215 of 1997) is an out right sale deed or the same has been executed only in lieu of 'sridhanam' in favour of the first plaintiff in Original Suit No.221 of 1997. 22. The trial Court has conducted joint trial in both the suits and the evidence taken in Original Suit No.221 of 1997 has also been treated as evidence in Original Suit No.221 of 1997. On the side of the plaintiff in Original Suit No.215 of 1997, except the plaintiff who has been examined as PW1, one more witness by name Arjunan has been examined as PW2. 23. The consistent stand taken on the side of the defendants in Original Suit No.215 of 1997 as well as the plaintiffs in Original Suit No.221 of 1997 is that even though Ex.A1 has been styled as a sale deed, it has come into existence only in lieu of 'sridhanam' in favour of the first plaintiff in Original Suit No.221 of 1997. 24. The first plaintiff in Original Suit No.221 of 1997 has been examined as DW1. Her specific evidence is that the suit property has been given by her father as 'sridhanam' even though Ex.A1 has come into existence in the form of an out right sale deed. As stated earlier, on the side of the plaintiff in Original Suit No.215 of 1997, except the evidence given by PWs.1 and 2, no other witness has been examined. Since the definite stand taken on the side of the plaintiffs in Original Suit No.221 of 1997 is to the effect that the suit property has been given to the first plaintiff therein as 'sridhanam' and since she has been examined as DW1, so as to disprove the evidence given by DW1, proper persons to be examined on the side of the plaintiff in Original Suit No.215 of 1997 are the executant of Ex.A1 by name Nadankannu Nadar, the first defendant in Original Suit No.221 of 1997 and the witness found in Ex.A1. But none of them has been examined on the side of the plaintiff in Original Suit No.215 of 1997. Therefore, it is quite clear that for the purpose of ascertaining as to whether Ex.A1 is an out right sale deed or the same has come into existence so as to give the suit property as 'sridhanam' to the first plaintiff in Original Suit No.221 of 1997, in both the suits some more oral evidence is required. 25. The first appellate Court has simply believed the evidence given by DW1. Since competent persons to speak about the nature of transaction transpired under Ex.A1 are its executant, one of the purchasers viz., Rajayyan and witness found therein, the Court cannot completely rely upon the evidence of DW1 with regard to the above factual aspect. Under https://hcservices.ecourts.gov.in/hcservices/ 7 the said circumstances for the purpose of giving quietus to the parties and also for the purpose of rendering proper justice, this Court is of the view that the appellants can be directed to examine any one of the persons who are connected with Ex.A1 so as to encrust the averments made in the plaint filed in Original Suit No.215 of 1997. Since the present lis requires some more oral evidence, it is needless to say that the Judgment and decree passed by the Courts below are liable to be set aside and Original Suit Nos.215 and 221 of 1997 are liable to be remitted to the file of the trial Court. Since Original Suit Nos.215 and 221 of 1997 are liable to be remitted to the file of the trial Court, the substantial questions of law raised in the present second appeals need not be decided now and it is open to the parties to raise the same in the trial Court. 26. In fine, these second appeals are allowed without cost at the stage of admission. Connected Miscellaneous Petition is closed. The Judgments and decrees passed by the Courts below are set aside and Original Suit Nos.215 and 221 of 1997 are remitted to the file of the Principal District Munsif Court, Kuzhithurai. The appellants are directed to examine any one of the persons who is connected with Ex.A1. The trial Court is directed to dispose of both the suits before the end of July 2011 and report the same to the Registry without fail. The Court fee paid on the appeal memorandums is ordered to be refunded forthwith to the appellants. The Registry is directed to send all the records immediately. Sd/- Deputy Registrar(LA) /True Copy/ Assistant Registrar To 1.The Subordinate Judge, Kuzhithurai 2.The Principal District Munsif , Kuzhithurai +One cc to Mr.S.Xavier Rajini, Advocate, SR.No.12078 +One CC to Mr.K.Sreekumaran Nair, Advocate, SR.No.11839 mj rl/5c – 1.6.2011 SA (MD) Nos.113 & 112 of 2011 29.03.2011 https://hcservices.ecourts.gov.in/hcservices/