S KRISHNA GOUNDER Vs. JANAKIAMMAL

JUDGEMENT

(1.) PLAINTIFF in O.S. No.2009 of 1981, on the file of Principal District Munsif's Court, Coimbatore, is the appellant. Suit filed by him was one for declaration that he is the real owner of the suit properties, and for the grant of a consequential permanent injunction restraining the defendants 1 to 4 from interfering with plaintiffs title to and possession of the suit properties in any manner whatsoever.

(2.) MATERIAL averments in the plaint may be summarised as follows:Plaintiff and first defendant are brother and sister. Defendants 2 and 3 are the sons of 1 st defendant. It is averred that plaintiff lost his wife as early as in the year 1942. Plaintiff has got sever children of whom two are sons and five are daughters. All of them are married and are well-settled in life. It is said that his sister has married one Krishna Gounder. First defendant is the second wife of Krishna Gounder. In his first marriage, he has a son by name Palaniappa. It is said that from the year 1938 itself, first defendant and her children were under the care and protection of plaintiff, and plaintiff and 1st defendant had mutual trust and confidence in each other. It is averred that plaintiff's father and his elder brother Arunachalam were in insolvent circumstances. The family had incurred heavy debts and all the properties belonging to the family were sold even before 1930. Plaintiff, out of his individual earnings, purchased several items which were lost to the family. Plaint items, according to plaintiff, were purchased by him with his own earnings. It is said that apart from the plaint items, plaintiff also purchased an extent of 6.18 acres of land, even during the lifetime of his father and elder brother Arunachalam. As between plaintiff and his brother, there is no documentary evidence to prove partition, and in order to avoid any claim from his elder brother, various documents were taken in the names of his sisters Maruthakkal, Valliammal and 1st defendant. It is said that as per document dated 14.12.1943, a sham document was created in favour of first defendant in regard to Item 2 in the plaint item. Neither first defendant nor her husband had any source to purchase the said property and the entire consideration was paid by plaintiff alone. Plaintiff never intended to transfer any title by virtue of the said sale deed. She is only a benamindhar and is a trustee for plaintiff. Plaintiff all along continued to be the real owner of the said item. In so far as Item No. 1 is concerned, plaintiff purchased the same as per sale deed dated 17.6.1941 from Krishna Gounder, i.e., first defendant's husband. He purchased the same for Rs.5,000 for valid consideration. When the sale deed was executed by Krishna Gounder, his son did not like it and it resulted in litigations in the family. O.S. No.348 of 1946, on the file of District Munsif's Court, Coimbatore, was filed by the son, for setting aside the sale deed. At that time, Palaniappa also drove away first defendant and her children out of her matrimonial home, and they were given protection only by the plaintiff. It is further said that the plaintiff's elder son Ponnusami got separated from plaintiff. His other son Natarajan also got separated. While so, at the instance of his son-in-law, Natarajan, younger son of plaintiff, filed a suit for partition of the plaint items. Long before the institution of the suit at the instance of the first defendant, he executed a deed insofar as Item No. 1 was concerned, in favour of 1st defendant. The document was executed as if plaintiff received a consideration of Rs.35,000. To create further evidence that the document is supported by consideration, a promissoiy note also happened to be executed for Rs.10,000. It is said that the document was executed only to shield the property from the claims of his sons and there was no necessity for executing the said deed. It is also a sham transaction which did not come into effect. The parties also never intended that such a document should come into existence and plaintiff continued to be the real owner of Item No. 1 also. Suit filed by Natarajan as O.S. No.519 of 1967, on the file of Second Additional Sub Court, Coimbatore, was hotly contested by plaintiff and ultimately me suit was dismissed. It is said that the decision in that case is no res judicata nor estoppel, and the plaintiff, irrespective of the decision in that case, is entitled to get his title declared in the suit. After the decision in that suit, first defendant in this case executed a settlement deed in favour of defendants 2 to 4 as if she is the absolute owner of the property. The same was questioned by plaintiff and he wanted the document to be set aside and a proper document executed in his favour. When the demand was not complied with, a registered notice was sent for which a reply was sent denying the right of the plaintiff over the property. The suit is, therefore, filed for declaration that he continues to be the owner and the documents executed by him in respect of Items 1 and 2 are only sham and nominal, and did not come into effect.

(3.) AT the time of admission of the second appeal, the following substantial questions of law were raised for consideration:'(1) Whether the lower appellate court has committed an error in holding that the suit is barred by res judicata and estoppel?(2) Whether the suit is barred by limitation? (3) Whether the suit is properly framed and whether it is liable to be dismissed as not maintainable? and(4) Whether the suit without praying for setting aside the sale deeds dated 14.12.1943 and 5.7.1966 executed by plaintiff in favour of 1st defendant, is maintainable?'.