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2010 Supreme(Mad) 4680
Madurai Bench of Madras High Court
THE HONOURABLE MR. JUSTICE A. SELVAM
Paulsamy Nadar & Others
Versus
Udaya Kumar Lingan rep. through the Power Agent Sathiaseelan & Others
SA(MD)No.690 of 2008 & SA(MD)No.976 of 2008 & MP(MD)No.1 of 2008
Decided On :Decided On : 29-10-2010
For the Petitioners:M/s. S. Siva Thilakar, M/s. S. Pon Senthilkumaran, Advocates.
For the Respondents:R1 - V.K. Vijayaraghavan, M/s. K. Vinayagan (caveator), R2 & R3 - S. Pon Senthilkumaran, Advocates.
Validity of oral gifts under the Transfer of Property Act and legal maintainability of the suit under the Tamil Nadu Panchayat Act
Headnote:
Oral Gift - Property Dispute - Transfer of Property Act, 1882, Section 123 - Tamil Nadu Panchayat Act, 1994, Section 231 - The Judgment and decree passed in Appeal Suit No.9 of 2006 by the Sub Court, Sankarankoil are being challenged in the present second appeal. The first respondent as plaintiff has instituted Original Suit No.37 of 2002 for declaration, permanent injunction, mandatory injunction, and recovery of possession of the suit second schedule. The suit properties were originally purchased by Thanapathi Ammal and subsequently sold to the plaintiff. The defendants claimed oral gifts of the property for road formation. The trial Court dismissed the suit, but the first appellate Court decreed it. The second appeals raised substantial questions of law regarding the entitlement to the suit property, non-joinder of necessary parties, and adverse inference due to the plaintiff not entering the witness box. The Court analyzed the factual and legal aspects, including the validity of oral gifts under the Transfer of Property Act and the maintainability of the suit under the Tamil Nadu Panchayat Act. It found the oral gifts invalid and the suit legally maintainable, confirming the first appellate Court's decision.
Fact of the Case:
The plaintiff filed a suit for declaration, permanent injunction, mandatory injunction, and recovery of possession of the suit second schedule, claiming ownership based on registered sale deeds. The defendants asserted oral gifts of the property for road formation. The trial Court dismissed the suit, but the first appellate Court decreed it.
Finding of the Court:
The Court found the oral gifts invalid under the Transfer of Property Act and upheld the legal maintainability of the suit under the Tamil Nadu Panchayat Act, confirming the first appellate Court's decision.
Issues: Validity of oral gifts, legal maintainability of the suit under the Tamil Nadu Panchayat Act
Ratio Decidendi: The oral gifts of the property were found invalid under the Transfer of Property Act, and the suit was deemed legally maintainable under the Tamil Nadu Panchayat Act.
Final Decision: The second appeals were dismissed, confirming the first appellate Court's decision.
1. The Judgment and decree passed in Appeal Suit No.9 of 2006 by the Sub Court, Sankarankoil are being challenged in the present second appeal.
2. The first respondent herein as plaintiff has instituted Original Suit No.37 of 2002 on the file of the District Munsif - cum - Judicial Magistrate Court, Sankarankoil for the reliefs of declaration, permanent injunction, mandatory injunction and also for recovery of possession of the suit second schedule, wherein the appellants in Second Appeal No.690 of 2008 have been shown as defendants 1 to 4 and the appellants in Second Appeal No.976 of 2008 have been shown as defendants 6 and 7.
3. It is averred in the plaint that the suit properties are originally belonged to one Thanapathi Ammal and she purchased the same under two registered sale deeds dated 06.12.1978. The plaintiff has purchased the suit first schedule under a registered sale deed dated 20.09.2001. The suit second schedule forms part of the suit first schedule and the same has been shown as ghdf in the plaint plan. Since the predecessor in title of the plaintiff has served in some other place, the first defendant and defendants 6 and 7 have trespassed into the suit second schedule and formed a pathway. No land acquisition proceedings have been taken. During December 2001, the plaintiff has attempted to put up compound wall and at that time the defendants 1 to 5 have restrained the plaintiff from proceeding with the construction of compound wall. The defendants are not having any manner of right, title and interest over the suit second schedule. Under the said circumstances, the present suit has been instituted for the reliefs sought for in the suit.
4. In the written statement filed by the defendants 2 and 4 it is averred that it is false to contend that the plaintiff has purchased the suit properties under a registered sale deed dated 20.09.2001. It is also equally false to contend that during December 2001 the plaintiff has attempted to put up compound wall in the suit second schedule. In Rayagiri Village one Hindu Nadar Uravinmurai is in existence and from the said Uravinmurai, a school by name Ci.Pa.Sivanthi Athithanar Girls High school has been running and the same is situate in Survey No.1029 and further, Higher secondary School is also situate near the school mentioned supra. In Survey No.1026/1 to 9 a road has been formed to a width of 16 feet. The vendor of the plaintiff has gifted a portion in the suit properties to a width of 16 feet from north to south for the purpose of forming road and accordingly a road has been formed in the suit properties and subsequently in the year 1996 the same has been handed over to the sixth defendant. The present suit is bad for non-joinder of necessary parties and there is no merit in the suit and the same deserves to the dismissed.
5. In the written statement filed on the side of the sixth defendant it is averred that in the year 1996 the plaintiff has orally gifted the suit second schedule to the sixth respondent and the same has been accepted by the sixth respondent and also taken delivery of possession. As per the resolution dated 29.08.1997 a tender has been called for and one Ayyanr has become a successful bidder and he has been permitted to form road. Since the plaintiff himself has given the suit second schedule orally to the sixth defendant, the plaintiff is not entitled to get the reliefs sought for in the plaint. There is no merit in the suit and the same deserves to be dismissed.
6. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after evaluating the evidence available on record has dismissed the suit. Against the Judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No.9 of 2006 on the file of the first appellate Court.
7. The first appellate Court after hearing both sides and upon reappraising the evidence available on record has allowed Appeal Suit N
