2018 Supreme(Mad) 4402

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
C.V. KARTHIKEYAN, J.
Saraswathi Ammal - Appellant
Versus
V. Vadamalai Rengappan (died) & Others - Respondents
S.A.(MD) No. 632 of 1997
Decided On : 25-10-2018

Headnote:

Transfer of Property Act,1882 - Sections 43 - Tamil Nadu Minor Inam Abolition Act,1963 – Sections 21(3), 21(4) -Tamil Nadu Estates Land Act, 1908 - Section 41 (2) (a) - Madras Hindu Religious and Charitable Endowments Act, 1951 - Section 35,44-B - Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 - Section 41 - Challenge - Suit for possession - Suit for Permanent injunction - Whether lower appellate Court is right in holding that respondent could take benefit of Section 43 of Transfer of Property Act when sale of service inam land is void as apposed to public policy - Whether lower appellate Court is right in holding that respondent could invoke Section 43 of Transfer of Property Act when suit was not filed as against original transferee or his heirs? - Whether lower appellate Court is right in allowing appeal when land vested with Government under Tamil Nadu Act patta was granted under Act when sale to appellant was in and revenue patta was granted to appellant under - Whether plaintiff is entitled for declaration of title to suit property? - Whether plaintiff is entitled for permanent injunction with respect to suit property - Whether suit is barred by law of limitation to what reliefs plaintiff is entitled to - Whether lower appellate Court is right in holding that respondent could take benefit of Section 43 of Transfer of Property Act when sale of service inam land is void as apposed to public policy - Whether lower appellate Court is right in holding that respondent could invoke Section 43 of Transfer of Property Act when suit was not filed as against original transferee or his heirs? - Whether lower appellate Court is right in allowing appeal when land vested with Government under Tamil Nadu Act patta was granted under Act when sale to appellant was in and revenue patta was granted to appellant under - Held, It had been pointed out by first appellate Court that this order had not been served on plaintiff - Court hold that there was no necessity to serve said order on plaintiff - Sale in favour of plaintiff had been declared as null and void even under - Those proceedings were served to plaintiff - He did not take any action whatsoever - Plaintiff had no existing right - Subsequent proceedings had been initiated in accordance to proceedings laid down by law - Court find no infirmity in same - Section 43 of Transfer of Property Act relates to fraudulent representation - It comes into operation when a fraudulent representation is made that vendor is authorized to transfer immovable property - In such an instance then at option of transferee Section 43 comes into play - This fraudulent representation under Section 43 is different from rendering a sale as null and void by statute as provided under Section 35 of Madras Hindu Religious and Charitable Endowments Act and under Section 41 of Tamil Nadu Hindu Religious and Charitable Endowments Act - Under Section 43 of Transfer of Property Act if subsequently vendor is found to have gained title then transferee can seek right to regularize his sale - But under Section 41 of Tamil Nadu Hindu Religious and Charitable Endowments Act since statute declares that sale transaction of inam lands are void transferee can never have any right even subsequently to regularize his sale - Court hold that entire premise on which first appellate Court gave its findings is totally erroneous - Sale deed is an invalid one he also created some records as if he has donated acre cents for forming a residential colony named after he then Collector Seetharam Doss - He surrendered possession of property to Government and divested himself of title and possession of property - As a fact plaintiff utilizing his political influence collected heavy amounts unautherisedly for said donation from third parties under guise of obtaining free house site pattas - It is submitted that out said voluntary act of plaintiff during plaintiff has knowingly with full knowledge divested himself of whatever right interest and title he had over properties - On obtaining possession Government also converted land as Natham Promboke and issued pattas in favour of so many third parties - It is quite strange that plaintiff after being a party for all these things how has filed present suit for declaration - Since plaintiff himself divested his right and possession he is estopped in law from setting up a contradictory case as if he is still having title and possession over properties - Hence at no stretch of imagination plaintiff can claim title of possession over suit properties - Second Appeal Allowed