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IN THE HIGH COURT OF MADRAS
T. RAVINDRAN, J.
Rajalakshmi and Ors. - Appellants
Versus
Palanisamy and Ors. - Respondents
A.S. No. 862 of 2009
Decided On : 19-08-2019
Constitution Of India,1950 - Article 109 - Contract Act,1872 Section 19 - Claim any share in suit properties - voidable transaction - Plaintiffs and first defendant are daughters and son of Ramsey Grounder through his first wife - Ramsey Grounder leaving behind plaintiffs and first defendant as his legal heirs - Ramsey Grounder during life time of had married one for his whims and fancies and through her he had begotten second defendant - Some ancestral lands and out of the income from above said ancestral properties he purchased various items as detailed in plaint and put up construction therein and enjoying same and thus according to plaintiffs all suit properties are ancestral joint family properties of and his children namely plaintiffs and first defendant - Further according to plaintiffs marriage of with is void ipso jure and cannot be recognized in eyes of law and hence second defendant is not entitled to any share in coparcenaries properties except in fathers share – Held, Admittedly appellant plaintiff has not produced title deed which is said to have been executed in his favor by his father - However transfer of mill and land comprised in father in favor of appellant plaintiff has been admitted by first respondent defendant - He has raised this contention in his written statement before trial court - When specific fact has been admitted it need not be proved through documentary evidence - Even in accordance with contentions of first respondent first defendant document was obtained from their father by appellant plaintiff by undue influence coercion or by playing fraud - Be it as it may - Documents can only be termed as voidable one and it at all first respondent first defendant wanted to set aside sale it should have been done within stipulated period of twelve years as contemplated Article of Limitation Act - As first respondent first defendant being Hindu governed by Mithakshara law alienation their father in respect of ancestral property should have been set aside within period of twelve years from date of passing of possession of mill and land to appellant plaintiff - Light of above said position when sale deeds are found to have been truly executed by Ramsey Grounder and above said transactions are found to be executed by in his capacity as family manager for valid reasons and interest and defendants have also established passing of consideration same and above said transactions are binding upon plaintiffs and above said transactions being only voidable and not void transactions as put forth by plaintiffs and plaintiffs having not impugned said sale transactions by way of seeking cancellation of above said sale deeds in manner known to law and when relief with reference to same has become time barred as above pointed out in all it is found that as held by trial court plaintiffs are not entitled to seek and obtain reliefs prayed for in suit – Appeal dismissed
JUDGMENT :
T. Ravindran, J.
1. Aggrieved over the judgment and decree dated 30.07.2008 passed in O.S. No. 155 of 2006 on the file of the First Additional District Court, Erode, the plaintiffs have preferred the appeal.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial court.
3. Suit for declaration and partition.
4. The case of the plaintiffs, in brief, is that the plaintiffs and the first defendant are the daughters and the son of Ramasamy Gounder through his first wife Arukkaniammal. Arukkaniammal died on 09.02.2005. Ramasamy Gounder died on 30.09.2005 leaving behind the plaintiffs and the first defendant as his legal heirs. Ramasamy Gounder, during the life time of Arukkaniammal, had married one Jayalaxmi for his whims and fancies and through her, he had begotten the second defendant. Ramasamy Gounder had some ancestral lands and out of the income from the abovesaid ancestral properties, he purchased various items as detailed in the plaint and put up the construction therein and enjoying the same and thus, according to the plaintiffs, all the suit properties are the ancestral joint family properties of Ramasamy Gounder and his children, namely, the plaintiffs and the first defendant. Further according to the plaintiffs, the marriage of Ramasamy Gounder with Jayalaxmi is void ipso jure and cannot be recognised in the eyes of law and hence the second defendant is not entitled to any share in the coparcenary properties except in the father's share. At the instigation of the second defendant and her mother, according to the plaintiffs, Ramasamy Gounder had levied the suit in O.S. No. 506 of 2001 against them for the relief of permanent injunction and the abovesaid suit was contested by the plaintiffs and the same ended in dismissal. The first defendant has been projected as a mentally retarded deaf and dump person in the abovesaid suit and the same was brought to the knowledge of the court by the plaintiffs in the abovesaid suit. Further it is stated that Ramasamy Gounder had not even informed the death of the plaintiffs' mother to the plaintiffs at the instigation of his second wife and according to the plaintiffs, the second defendant and her mother, in order to grab the joint family properties of Ramasamy Gounder and the first defendant, who is mentally retarded, stealthily planned and fraudulently created the sale deeds dated 24.08.2005 and 29.09.2005 in favour of the second defendant by assigning false reasons and the abovesaid sale deeds are fraudulently created by the second defendant and her mother with the active indulgence by Ramasamy Gounder and his associates and the suit properties are very valuable lands and no consideration has been passed under the abovesaid sale deeds. Hence, the above sale deeds are void, inoperative and unenforceable and their father has also no locus standi to sell the properties of the first defendant, who is mentally retarded, deaf and dump without obtaining the necessary permission of the court. Further, it is stated that as per the amended Hindu Succession Act 39 of 2005 the plaintiffs are also entitled to obtain each 1/4 share in the suit properties along with their father and brother and thus according to the plaintiffs, in all, after the demise of Ramasamy Gounder, the plaintiffs and their brother, namely, the first defendant are each entitled to 5/16 share in the suit properties whereas the second defendant is entitled to 1/16 share in the suit properties and it is also stated that a police complaint was launched falsely against the plaintiffs by the second defendant and her mother due to enmity and inasmuch by way of the abovesaid impugned sale deeds, the second defendant in collusion with her mother having obtained the same by practicing fraud and mis representation, are attempting to prevent the plaintiffs from obtaining their shares in the suit properties and enjoying the same and hence it is put forth by the plaintiffs that they had been n
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