A suit for partition is maintainable even without seeking the cancellation of a fraudulent Release Deed, as the fraud vitiates all proceedings.

S.A.No.1181 of 2005

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 03.01.2023

CORAM

THE HONOURABLE Ms. JUSTICE P.T. ASHA

S.A.No.1181 of 2005

Thangavel

...Appellant/Appellant/Defendant

Vs.

Vijaya

...Respondent/Respondent/Plaintiff

PRAYER: Second Appeal filed under Section 100 of the Code of

Civil Procedure against the Judgment and Decree dated 27.04.2005 in

A.S.No.126 of 2004 on the file of the learned I Additional District

Judge, Erode, confirming the Judgment and Decree dated 24.09.2003

in O.S.No.214 of 1997 on the file of the learned II Additional

Subordinate Judge, Erode.

For Appellant

:

Mr.R.Venkatesulu

For Respondent :

Mr.C.A.Ramanan

for Mr.N.Manokaran

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S.A.No.1181 of 2005

JUDGMENT

The defendant who has lost in both the Courts below in a suit for

partition is the appellant before this Court. The parties are referred to

in the same litigative status as in the Original Suit.

2.The facts in brief are as follows:

The plaintiff had filed a suit O.S.No.214 of 1997 on the file of

the learned II Additional Subordinate Judge, Erode, for a partition and

for permanent injunction restraining the defendant from creating any

alienation or encumbrance in respect of the suit schedule property. It

is the case of the plaintiff that the suit property belonged to one

Ramasamy Gounder, son of Rakkiya Gounder, under the Sale Deeds

dated 14.05.1959, 13.07.1959 and 29.04.1963. The said Ramasamy

Gounder during his life time had executed a Gift Settlement Deed dated

04.11.1966 settling the properties on his wife Chinnammal and their

sons, namely, Subramani, Thangavel (the defendant) and Arasappa

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S.A.No.1181 of 2005

Gounder. Besides the three sons Ramasamy had two daughter, namely,

Rukmani and Kannammal. Arasappa Gounder, one of the sons of

Ramasamy died leaving behind him surviving his wife Padmavathy @

Chinnammal and his minor daughter Vijaya (the plaintiff).

Immediately after the death of Arasappa Gounder, Padmavathy @

Chinnammal had executed a Release Deed dated 17.06.1981 releasing

her share and the share of the minor child, namely, Vijaya in favour of

her mother-in-law Chinnammal and brother-in-law Thangavel after

receiving a sum of Rs.10,000/-. The plaintiff would contend that the

Release Deed had been fraudulently obtained and is not binding upon

her, particularly, since she was minor at that point of time. The

plaintiff therefore issued a notice dated 18.04.1997 calling upon the

defendant to partition the property to which reply notice dated

30.04.1997 was issued denying the claim of the plaintiff. The plaintiff

has therefore came forward with the instant suit for the relief stated

supra.

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S.A.No.1181 of 2005

3.The defendant had filed a Written Statement inter alia denying

the claim of the plaintiff and contending that the suit itself was not

maintainable. He would submit that the Release Deed has been

executed by the mother of the plaintiff fully comprehending the nature

of the document and if aggrieved that the same was fraudulently

obtained she should have immediately come forward and set aside the

Release Deed. The defendant would further submit that the mother of

the plaintiff had also received sale consideration and therefore, the

plaintiff was bound by the said document. The defendant had denied

the allegations of fraud contained in the Plaint. The defendant would

submit that the Release Deed is a registered document and binding on

both the plaintiff as well as her mother. The defendant further submit

that he has been in continuous possession and enjoyment of the

property all these years. That apart, there is no relief sought for setting

aside the Release Deed executed by her mother. The defendant had

also pleaded limitation, Therefore, he contended that the suit is li