S.A No.924 of 2015

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 25.01.2023

CORAM:

THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI

S.A No.924 of 2015

M.Raji

... Appellant

Vs.

1.S.Dhanasekar

2.S.Raji

3.S.Dasarathan

4.Tmt. Yellammal

5.M.Thandavarayan

6.Kalyaniammal

...Respondents

PRAYER: This Second appeal filed under Section 100 of the Code of Civil

Procedure against the Judgment and Decree in A.S No.132 of 2014 dated

13.07.2015 on the file of the learned Subordinate Judge, Arakkonam

reversing the judgment and decree made in O.S No. 157 of 2006 dated

12.11.2013 on the file of the learned District Munsif Court, Arakkonam.

For Appellant

: Mr.G.Jeremiah

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S.A No.924 of 2015

For Respondents

: Mr.A.Gowthaman

JUDGMENT

The appellant herein is the plaintiff in suit O.S No.157 of 2006,

on the file of the District Munsif Court, Arakkonam against the

defendants/respondents herein for the relief of declaration and recovery of

possession with other consequential relief in respect of suit properties as

listed in the plaint schedule. Before the Trial Court both the parties adduced

their evidence and on considering the documents and oral evidence the Trial

Court framed issues held that the father of the plaintiff has no right to sell

the property to the defendants 1 to 4 nor empower to execute mortgage in

favour of the sixth defendant for the reason that already he executed gift

settlement deed in favour of his minor son/plaintiff in the year 1986 by

appointing his wife as guardian thereby declared suit property in favour of

the plaintiffs and decreed the suit as prayed for.

2. Challenging the said findings the defendant 1 to 4 preferred

an appeal in A.S No. 132 of 2014, on the file of the Sub Court, Arrakonam ,

which framed issues separately and analysed the facts held that the plaintiff

failed to prove that said gift deed was acted upon nor his possession and

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S.A No.924 of 2015

enjoyment of the suit property. Besides plaintiff was not filed suit within

three years after attaining his majority. Thereby the suit was dismissed by

allowing appeal.

3. Chellanging the reversal findings the plaintiff preferred this

second appeal by contending that on the date of gift itself possession has

been delivered but the lower appellate Court erred in holding that he has not

proved the possession of the property by misconstruing Section 122 of

Transfer of Property Act. Further it also erred in holding that as per article

58 of Limitation Act, suit as such was bared by limitation.

4. This Court admitted the second appeal with the following

substantial questions of law:

ì.Whether lower appellate Court has committed an error in law

in holding that the gift settlement under the original of Ex.A1 was not acted

upon by acceptance of the gift, ignoring the decision of th Supreme Court

reported in 2013 (13) SCC 210?

ii. Whether the Judgment of the lower appellate Court cannot be

construed to be a judgment as it is not in accordance with Order XLI Rule

31 CPC?

Iii. Whether the lower appellate Court has committed an erron

in holding that the suit is barred by limitation?

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S.A No.924 of 2015

5. The brief facts of the case are as follows:

It is the case of the plaintiff that the suit property as described

in the plaint schedule is belongs to his father Mani Reddiar and he executed

Registered settlement deed dated 26.05.1976 in favour of the plaintiff by

appointing Pachiammal/plaintiff's mother as guardian since the plaintiff was

minor. Therefore after examination of the gift deed he has no right to deal

with suit property, but in the year of 2006 the first defendant filed suit for

redemption against sixth defendant in O.S No. 154 of 2000 then on

verification of records plaintiff came to know that