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2023 Supreme(Mad) 2346
IN THE HIGH COURT OF JUDICATURE AT MADRAS
S.S. SUNDAR, C. KUMARAPPAN, JJ.
C.H. Madhava Rao & Others – Appellants
Versus
South India Educational Trust, Represented by its Secretary, Madras & Others – Respondents
O.S.A. No. 191 of 2008
Decided On : 13-07-2023
For the Appellants:P.J. George & Najeeb Usman Khan, Advocates. For the Respondents:R1, S. Parthasarathy, Senior Counsel, B. Senthilnathan, Advocate, R2, No appearance.
Headnote:
Suit for recovery of possession of plaint A-Schedule properties, after removing the superstructure put up by defendants over the land, is not maintainable in the absence of a prayer to set aside the sale deeds dated 22.08.1949 and 30.11.1956. Father of 1st plaintiff had the right to alienate the property in suit A-Schedule as a guardian of plaintiff. Suit is barred by limitation.
Fact of the Case:
Suit in C.S.No.985 of 1993 was originally filed by Smt.Chebrolu Thayaramma, the mother of 1st appellant and also the wife of 6th appellant, for permitting her to institute the suit in forma pauperis and for recovery of possession of plaint A-Schedule properties, after removing the superstructure built by defendants, and to direct the 1st defendant to pay a sum of Rs.14,55,000/-, the 2nd defendant to pay a sum of Rs.3,60,000/-, and the 3rd defendant to pay a sum of Rs.60,000/- as mesne profits and for future mesne profits. During the pendency of the suit, the original plaintiff Smt.Chebrolu Thayaramma died and therefore, the appellants were impleaded as legal heirs of the deceased 1st plaintiff and they became plaintiffs 2 to 7 in the suit in C.S.No.985 of 1993.
Finding of the Court:
The suit in C.S.No.985 of 1993 for recovery of possession is not maintainable in the absence of a prayer to set aside the Court auction sale and private sales, in favour of defendants, on the ground of fraud, and the suit is also barred by limitation. Under Section 27 of Limitation Act, the right of plaintiff is extinguished. Therefore, the learned Single Judge is right in deciding the preliminary issue as against the plaintiff and dismissing the suit. This Court also finds that the father of 1st plaintiff had every right to alienate the property in suit A-Schedule as a guardian of 1st plaintiff, and therefore, the alienations made by the father of plaintiff are saved.
Issues: i. Whether the father of deceased first plaintiff, Lakshmiah had the right to alienate the property described in A schedule of the plaint and whether the alienation and subsequent alienation made by him and his successors-in-title are valid in the eye of law ? ii. Whether the suit claim is barred by limitation ? iii.Whether the plaintiff is entitled to mesne profits as prayed for ? iv. Whether the defendants have prescribed title by adverse possession ? v. Whether the plaintiff is entitled to delivery of vacant possession of the property described in A schedule of the plaint after removal of the superstructure built by the defendants ? vi. To what relief, are the plaintiffs entitled ?
Ratio Decidendi: The father of 1st plaintiff, for himself and on behalf of 1st plaintiff who was then a minor, filed the suit in C.S.No.480 of 1948 and that the suit was decreed in terms of the compromise memo, granting an order not only for removal of Sri Achanna Chetty from the Trusteeship, but also for demarcation and delivery of Items 1 and 2 of A-Schedule. The application in A.No.1745 of 1949 in C.S.No.480 of 1948, filed by the father of plaintiff for himself and on behalf of 1st plaintiff for a direction to the Advocate Commissioner, to sell Item 1 of suit A-Schedule property, is allowed on merits. The Court auction sale, which was held in the interest of minor in a proceeding where minor was eo nominee a party, cannot be questioned by the minor without a prayer to set aside the compromise decree or subsequent alienations. The alienations by the father, even without a legal necessity, is only voidable and not void and therefore, the suit without a prayer to set aside the alienations, is not maintainable.
Final Decision: Appeal dismissed with costs.
JUDGMENT
(Prayer: Original Side Appeal filed under Order XXXVI Rule 1 of Original Side Rules r/w. Clause 15 of the Letters Patent against the judgment and decree dated 03.10.2007 in C.S.No.985 of 1993 on the Original Side of this Court.)
S.S. Sundar.
1. The plaintiffs in the suit in C.S.No.985 of 1993 on the Original Sideof this Court, are the appellants in the above Original Side Appeal.
2. The suit in C.S.No.985 of 1993 was originally filed bySmt.Chebrolu Thayaramma, the mother of 1st appellant and also the wife of6th appellant, for permitting her to institute the suit in forma pauperis andfor recovery of possession of plaint A-Schedule properties, after removingthe superstructure built by defendants, and to direct the 1st defendant to paya sum of Rs.14,55,000/-, the 2nd defendant to pay a sum of Rs.3,60,000/-,and the 3rd defendant to pay a sum of Rs.60,000/- as mesne profits and forfuture mesne profits.
3. During the pendency of the suit, the original plaintiff Smt.ChebroluThayaramma died and therefore, the appellants were impleaded as legalheirs of the deceased 1st plaintiff and they became plaintiffs 2 to 7 in the suitin C.S.No.985 of 1993.
4. The suit property consists of A and B Schedules. Item 1 of suit AScheduleis an extent of 2 Cawnies and 12 Grounds in R.S.No.3799 inTeynampet, within Mylapore Sub-Registration District, Chennai. Item 2 ofsuit A-Schedule is an extent of 1 Ground in R.S.No.3798/B (now inR.S.No.3798/2) in Mylapore, Chennai.
5. The case as pleaded by the original plaintiff Smt.ChebroluThayaramma, as per the plaint averments, is as follows :
5.1. The suit property described as Items 1 and 2 in A-Scheduleoriginally belonged to plaintiff''s grandfather Sri Narayanasamy Chetty.
5.2. By a deed of family settlement dated 01.02.1937 executed by SriNarayanasamy Chetty, life interest in respect of Items 1 and 2 of plaint AScheduleproperty was created in favour of father of plaintiff, namely, SriLakshmiah Chetty and vested remainder was given in favour of plaintiff.The elder brother of plaintiff''s father, by name Sri Achanna Chetty, wasnominated as Trustee of the properties for the benefit of life estate holder inthe said deed.
5.3. Plaintiff came to know that the said Sri Achanna Chetty wasremoved from the Trusteeship for alleged acts of malfeasance, misfeasanceand non-feasance. Plaintiff also learnt that her father Sri Lakshmiah Chettyeffected some alienations in respect of the properties described in A-Schedule to third parties without the knowledge and consent of the plaintiff.The plaintiff''s father, who is only a life estate holder, did not have any rightto alienate the properties and the rights of plaintiff had neither accrued forher to take necessary action nor the plaintiff had knowledge of suchtransactions.
5.4. The life estate holder, namely the father of plaintiff, died on14.12.1975 and from the said date, the plaintiff became the absolute ownerof the properties in terms of the family settlement deed dated 01.02.1937.
5.5. The 1st defendant is in possession of 2 Cawnies of land inR.S.No.3799 and the 2nd item of A-Schedule. From the RegistrationRecords, plaintiff learnt that the 3rd defendant is in occupation of an extentof 2 Grounds and 192 sq.ft. Another extent of 12 Grounds is in the name ofSmt.Dhanalakshmi Ammal, who purchased the said property from plaintiff''sfather Sri Lakshmiah Chetty in a Court auction. The 2nd defendant is theonly known surviving heir of Smt.Dhanalakshmi Ammal, who purchasedthe property in Court auction.
5.6. Defendants are in occupation of plaint A-Schedule properties onthe basis of a few registered documents which did not convey any right, titleor interest to the defendants, as all those alienations were made by plaintiff''sfather Sri Lakshmiah Chetty and the transactions are void and collusive innature. Since the plaintiff was not a party to the transactions, the alleged
