suit for partition - prayer to set aside partition deed dated 27.02.2002,settlement deed dated 09.07.2008 and sale deed dated 29-8-2019 void - suit filed on 10.09.2013 - plaintiffs is not party to documents - it cannot be held that suit is barred by limitation
Citation
CDJ 2018 MHC 1771
S.Rathinammal and others vs C.Chamundeshwari and others
Head Note
Indian Succession Act – Section 213 – Suit for declaration – Partition deed – Sale deed – Whether Plaintiffs are entitled to relief of declaration, declaring Settlement deed executed by brother in favour of first to fourth Defendants as null and void – Whether Plaintiffs are entitled for declaration, declaring Sale deed executed by first to fourth and seventh to twelfth Defendants in favour of thirteenth to sixteenth Defendants as null and void – Whether Defendants can claim any right, title or interest over suit properties through an un-probated Will –
Court held – first to eighth Defendants are in unison, when they claim that Partition Deed and Settlement Deed are valid and binding on plaintiffs – At least Defendants 5 and 6 were parties to Partition Deed – fifth and eighth Defendants have accepted Partition Deed – if declaration that document is null and void is to be granted, it will amount to, dislodging vested rights that are created under document – Plaintiffs are not entitled to declaration that three documents, are null and void, but at same time, they would be entitled to declaration that those documents are not binding on Plaintiffs in respect of 1/4th share of deceased in suit properties – issues are answered to effect that said Partition Deed, Settlement Deed and Sale Deed will not be binding on plaintiffs, in respect of 1/4th share of deceased in suit properties – In view of categorical prohibition contained under Section 213 of Act –Further, conclude that Defendants cannot establish their title or interest over suit properties through and un-probated Will – Suit decreed.
Indian Succession Act – Section 213 – Limitation Act, 1963 – Article 59 – Suit for declaration – Partition deed – Sale deed – Limitation – Whether Plaintiff's claim in respect of declaration to declare Partition Deed is barred by limitation – Whether Defendants 13 to 16 are bonafide purchasers of item No.2 of suit schedule properties –
Court held – Perusal of evidence on record would go to show that such claim has almost been given up by Defendants, during course of proceedings – In fact no issue has been framed regarding ouster – There is no assertion of hostile title by Defendants as against Plaintiffs and it is not shown that Defendants have denied title of Plaintiffs to their knowledge and claimed adversely to Plaintiffs at any point of time – Execution of documents cannot be said to be acts in derogation of rights of Plaintiffs – issue against Defendants in favour of Plaintiffs – Partition Deed, Settlement Deed and Sale Deed would not be binding of Plaintiffs to extent of their 1/4th share, Plaintiffs would be entitled to claim share in amount lying in Court deposit also – In absence of any evidence to show that Defendants 13 to 16 have purchased property with knowledge of defect in title, it cannot be said that their purchases in bad faith – Therefore, Defendants 13 to 16 are bona fide purchasers for value without notice of defect to title of their vendors – Suit decreed.
Cases Referred:
Padmavathy Ammal v. Pachaiyappa Nainar & Rangasamy Nainar, reported in 2012 (1) LW 1017.
Mr.Kabali and Ors. v. Arulmighu Shri Ellaiamman Koil, Rep. By its Trustee, reported in MANU/TN/4144/2011,
G.Ganesan and Ors. v. P.Sundari, reported in 2011 (2) CTC 435,
Mandali Ranganna & Others v. T.Ramachandra & Others, reported in 2008 (11) SCC 1
Comparative Citation:
2018 (2) CTC 526,
Court held – first to eighth Defendants are in unison, when they claim that Partition Deed and Settlement Deed are valid and binding on plaintiffs – At least Defendants 5 and 6 were parties to Partition Deed – fifth and eighth Defendants have accepted Partition Deed – if declaration that document is null and void is to be granted, it will amount to, dislodging vested rights that are created under document – Plaintiffs are not entitled to declaration that three documents, are null and void, but at same time, they would be entitled to declaration that those documents are not binding on Plaintiffs in respect of 1/4th share of deceased in suit properties – issues are answered to effect that said Partition Deed, Settlement Deed and Sale Deed will not be binding on plaintiffs, in respect of 1/4th share of deceased in suit properties – In view of categorical prohibition contained under Section 213 of Act –Further, conclude that Defendants cannot establish their title or interest over suit properties through and un-probated Will – Suit decreed.
Indian Succession Act – Section 213 – Limitation Act, 1963 – Article 59 – Suit for declaration – Partition deed – Sale deed – Limitation – Whether Plaintiff's claim in respect of declaration to declare Partition Deed is barred by limitation – Whether Defendants 13 to 16 are bonafide purchasers of item No.2 of suit schedule properties –
Court held – Perusal of evidence on record would go to show that such claim has almost been given up by Defendants, during course of proceedings – In fact no issue has been framed regarding ouster – There is no assertion of hostile title by Defendants as against Plaintiffs and it is not shown that Defendants have denied title of Plaintiffs to their knowledge and claimed adversely to Plaintiffs at any point of time – Execution of documents cannot be said to be acts in derogation of rights of Plaintiffs – issue against Defendants in favour of Plaintiffs – Partition Deed, Settlement Deed and Sale Deed would not be binding of Plaintiffs to extent of their 1/4th share, Plaintiffs would be entitled to claim share in amount lying in Court deposit also – In absence of any evidence to show that Defendants 13 to 16 have purchased property with knowledge of defect in title, it cannot be said that their purchases in bad faith – Therefore, Defendants 13 to 16 are bona fide purchasers for value without notice of defect to title of their vendors – Suit decreed.
Cases Referred:
Padmavathy Ammal v. Pachaiyappa Nainar & Rangasamy Nainar, reported in 2012 (1) LW 1017.
Mr.Kabali and Ors. v. Arulmighu Shri Ellaiamman Koil, Rep. By its Trustee, reported in MANU/TN/4144/2011,
G.Ganesan and Ors. v. P.Sundari, reported in 2011 (2) CTC 435,
Mandali Ranganna & Others v. T.Ramachandra & Others, reported in 2008 (11) SCC 1
Comparative Citation:
2018 (2) CTC 526,
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