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2010 Supreme(Mad) 4684
Before the 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.
Ratios
a. Oral gift of an immovable property is not valid.
b. A gift of an immovable property should be effected only by way of registered instrument and the same should be signed by donor or on behalf of the donor and also attested by at least two witnesses.
c. For filing a suit against the panchayat in respect of an immovable property, prior notice need not be given to the panchayat.
Headnote:(A)Transfer of Property Act, 1882(4 of 1882)-Sec.123- Tamil Nadu Panchayats Act, 1994(21 of 1994)-Sec.231-Property-Transfer-Gift-Oral gift-Panchayat-Suit-Notice-Maintainability-Plaintiff sought for declaration and injunction by alleging that he had purchased the property by a registered sale deed which was sought to be interfered with by the defendants-Defendants contended that the property was orally gifted to the school for laying road by the panchayat and thus the plaintiff was not having right over the same-Panchayat contended that the suit was not maintainable as notice was not given by the plaintiff prior to the filing of the suit-While the trial Court dismissed the suit, the first appellate Court decreed the suit-In the appeal to the High Court, appellant contended that the property was already orally gifted to the school for laying road and thereafter road was formed by the panchayat and in the absence of notice before the institution of the suit, suit was not maintainable which was contested by the plaintiff-Held, an immovable property could be gifted only in writing and so the alleged oral gift was not valid-For filing a suit against the panchayat in respect of an immovable property, prior notice need not be given to the panchayat-Appeal was dismissed.
(B)Transfer of Property Act, 1882(4 of 1882)-Sec.123- Property-Transfer-Gift-Oral gift-Validity-Maintainability-Oral gift of an immovable property is not valid-A gift of an immovable property should be effected only by way of registered instrument and the same should be signed by donor or on behalf of the donor and also attested by at least two witnesses.
Even a cursory look of the said provision would clearly show that a gift of an immovable property should be effected only by way of registered instrument and the same should be signed by donor or on behalf of the donor and also attested by at least two witnesses. In view of the provision of section 123 of the Transfer of Property Act, 1882, oral gift alleged to have been given by the predecessor in title of the plaintiff in favour of the school authorities mentioned in the written statement filed by the defendants 2 and 4 is not legally valid. Para 24
(C)Tamil Nadu Panchayats Act, 1994(21 of 1994)-Sec.231- Panchayat-Immovable property-Suit-Notice-Maintainability- For filing a suit against the panchayat in respect of an immovable property, prior notice need not be given to the panchayat.
The present suit has been instituted for the reliefs of declaration, permanent and mandatory injunctions and also for recovery of possession. Therefore, it is easily discernible that the exception given under sub-section 2 of section 231 of the said Act is squarely applicable to the present suit and the present suit is legally maintainable and the provision of the said section is not a bar to the present suit. Therefore, the entire argument advanced on the side of the appellants in Second Appeal No.976 of 2008 is sans merit.
Para 28
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
