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IN THE HIGH COURT OF JUDICATURE AT MADRAS
C.V. KARTHIKEYAN, J.
Masilamani - Appellant
Versus
Sathasivam & Another - Respondents
S.A. Nos. 796 & 180 of 2015 & M.P. No. 1 of 2015
Decided On : 27-08-2019
Civil Procedure Code - Section 100 - Transfer of Property Act, 1822 - Section 52 - seeking declaration of title with respect - suit property and for recovery of possession - sale deed - Whether the lower appellate court is correct in law in holding that the appellant is not entitled to recovery of possession after finding that the trial Court had not framed any issue regarding the said relief, overlooking the fact that the respondents had already vacated the suit property - When the intention of Section 52 of the Transfer of Property Act, 1822 is not to annul voluntary transfers effected by the parties to the suit but only to render them subservient to the rights of the parties thereto under the decree which may be made in the suit, whether the lower appellate Court is correct in law in holding that the appellant cannot maintain the suit due to the doctrine of lis pendens, especially when the appellant had settled only a portion of the suit property under Exhibit – Held, It is an admitted fact that the sale deed dated 24.06.1986 had been executed by the second defendant, Vajjrammal in favour of the plaintiff Masilamani. Subsequent to registration of the sale deed, the name of the plaintiff had been mutated in the revenue records, namely, patta, kist receipts and ‘A’ Register. The house tax receipts and electricity bills are also in the name of the plaintiff. Consequently, I hold that the plaintiff had perfected her title over the suit property. The defendant had not let in any oral evidence to substantiate their claim that they signed Ex.A-6 sale deed under the impression that it was only a settlement deed. However, the First Appellate court had rejected granting declaration of title on the ground that the plaintiff had settled the property in favour of her husband. This reasoning of the First Appellate Court cannot be sustained. Even assuming that the settlement deed had been effected by the plaintiff, if the settlee is to have a clear title, then, the settlor’s title must be declared. The suit has been filed only for that purpose. The settlement deed is subsequent to the suit. Declaration of title of the settlor or the plaintiff has to be based on the date of cause of action and as on that date, so long as the Courts had found that the title deed, namely, sale deed, Ex.A-6 has established title on the plaintiff then declaration to that effect must be granted. Documents executed pending the suit cannot be the basis for non-suiting the plaintiff - above conclusion also leads to the further conclusion that the questions raised in S.A.No. 180 of 2015 are reduced only to an academic exercise. As determined on facts, the first defendant Vajjirammal had vacated the premises and is no longer in possession. As determined by both the Courts below, granting an order of injunction restraining her from alienating the property would be of no avail. Consequently, without any further discussion, I hold that the said Second Appeal had to be dismissed as infructuous as the cause of action does not survive as on date – Petition dismissed
JUDGMENT :
(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree of the Subordinate Judge’s Court at Harur, dated 10.07.2015 in A.S.No. 9 of 2014 partly reversing the Judgment and Decree of the District Munsif Court at Harur, dated 07.02.2014 in O.S.No. 176 of 2010.
This Second Appeal is filed under Section 100 of Civil Procedure Code, against the Judgment and Decree of the Subordinate Judge’s Court at Harur, dated 27.08.2014 in A.S.No. 33 of 2013 confirming the Judgment and Decree of the District Munsif Court at Harur, dated 26.02.2013 in O.S.No. 99 of 2010.)
1. S.A.No. 796 of 2015 arises from O.S.No. 176 of 2010 on the file of the District Munsif Court, Harur.
2. O.S.No. 176 of 2010 had been filed by the plaintiff Masilamani represented by her Power Agent, Inbasekaran, her husband, against two defendants Sathasivam and his wife Vajjirammal seeking declaration of title with respect to the suit property and for recovery of possession and for mense profits.
3. The said suit, was partly decreed by judgment dated 07.02.2014 to the extent of declaration of title. Thereafter, the defendants filed A.S.No. 9 of 2014 before the Sub Court, Harur. The said Appeal was allowed by Judgment dated 10.07.2015. Consequently, the plaintiff has filed the present Second Appeal.
4. The Second Appeal had been admitted on the following substantial questions of law:-
“a. Having found that the appellant is the owner of the suit property by virtue of Exhibit A6 sale deed dated 24.06.1986, is the lower appellate Court correct in law in non-suiting the appellant on the flimsy ground that she settled suit property on her husband under Exhibit B1 settlement deed dated 06.08.2012 during the pendency of the suit, by not considering the gamut of Section 52 of the Transfer of Properties Act, 1882?;
b. When the intention of Section 52 of the Transfer of Property Act, 1822 is not to annul voluntary transfers effected by the parties to the suit but only to render them subservient to the rights of the parties thereto under the decree which may be made in the suit, whether the lower appellate Court is correct in law in holding that the appellant cannot maintain the suit due to the doctrine of lis pendens, especially when the appellant had settled only a portion of the suit property under Exhibit B1?; and
c. Whether the lower appellate court is correct in law in holding that the appellant is not entitled to recovery of possession after finding that the trial Court had not framed any issue regarding the said relief, overlooking the fact that the respondents had already vacated the suit property?.”
5. S.A.No. 180 of 2015 arises from O.S.No. 99 of 2010 on the file of the District Munsif Court, Harur.
6. O.S.No. 99 of 2010 had been filed by the plaintiff Masilamani represented by her Power Agent Inbasekaran against Vajjirammal, and the District Collector, Dharmapuri District and the Sub Registrar, Harur seeking an order of permanent injunction restraining the third defendant from registering any document by the first defendant with relation to the suit property. The said suit was dismissed by Judgment dated 26.02.2013. Thereafter, the plaintiff filed A.S.No. 33 of 2013 before the Sub Court, Harur. The Appeal was also dismissed by Judgment dated 27.08.2014. The plaintiff had therefore filed the present Second Appeal. This Second Appeal was admitted on the following substantial questions of law:-
“1. Whether the Courts below are correct in law in holding that the appellant had not established her possession, particularly when the suit is for permanent injunction restraining the respondent from alienating the suit property?;
2. When admittedly the appellant had purchased the suit property under registered sale deed dated 24.01.1986 executed by the respondent and the respondent had also admitted the execution of the same in her written statement, whether the Courts below are correct in law in non-suiting the appellant?
3. Whether
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