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S.A.KASIM ROWTHER (DIED) versus RAJU @ SUBRAMANIAN

High Court of Madras

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S.A.Kasim Rowther (died) v. Raju @ Subramanian - S.A.No.581 of 1989 and S.A.No. 662 of 1989 [2002] RD-TN 356 (12 June 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS



DATED: 12/06/2002

CORAM

THE HONOURABLE MR. JUSTICE P.D.DINAKARAN

S.A.No.581 of 1989 and S.A.No. 662 of 1989

S.A.No.581 of 1989

1.S.A.Kasim Rowther (died)

2.Syed Ahamed

3.Abdul Lattif .. Appellants (3rd Appellant brought on record

vide order dated 12.3.1996 in

CMP No.3638 to 3640/1996)

Vs

1.Raju @ Subramanian

2.Selladurai Asari

3.Nagalinga Asari @

4.Ayyakkannu Asari

5.Sreenivasaraghavan

6.Ramachandran

7.Soundaram Ammal

8.Ramaya Ammal

9.Lakshmi Ammal

10.Markandan .. Respondents S.A.No.662 of 1989

1.Ayyakannu Asari (died)

2.Soundaram Ammal

3.Lakshmi Ammal

4.Markandan Asari

5.Lakshmi

6.Suyarajyam

7.Panchatcharam

8.Nambu Nachiar

9.Muruganandham

10.Loganathan

11.Ramu

12.Ravi .. Appellants (Appellants 5 to 12 brought on

record vide order dated

17.10.2001 in CMP Nos.10700 to

10702/2000)

Vs

1.Raju @ Subramanian

2.Chelladurai Asari

3.S.A.Kasim Rowther

4.Syed Mohammed

5.Nagalinga Asari @

Vellaian Asari

6.Ramachandran

7.Srinivasaragavan

8.Ramayee Ammal .. Respondents PRAYER in S.A.No.581 of 1989:Against the judgment and decree dated 15.3.1985 made in O.S.No.99 of 1974 on the file of the Sub Court, Ramanathapuram at Madurai as confirmed by the judgment and decree dated 12 .12.1988 made in A.S.No.64 of 1985 on the file of the learned Additional District Judge, Ramnad at Madurai.

PRAYER in S.A.No.662 of 1989:Against the judgment and decree dated 15 .3.1985 made in O.S.No.99 of 1974 on the file of the Sub Court, Ramanathapuram at Madurai as confirmed by the judgment and decree dated 12 .12.1988 made in A.S.No.123 of 1987 on the file of the learned Additional District Judge, Ramnad at Madurai.

For Appellants in

S.A.No.581/89 : Mr.Dhanasekar

For Appellants in

S.A.No.662/89 : Mr.D.Rajagopal

For Respondents: Mr.Thiagarajan

For R1 in both

Second appeals

:JUDGMENT



1.1. Even though S.A.No.581 of 1989 was admitted by this Court and notice was ordered as early as 26.4.1989, till date batta has not been paid for service of notice in the above second appeal on the 5th respondent. Hence, this second appeal is dismissed as against the 5th respondent. 1.2. Even though S.A.No.662 of 1981 was admitted by this Court and notice was ordered as early as on 28.4.1989, till date batta has not been paid for service of notice in the above second appeal on the 7th respondent. Hence, this second appeal is dismissed as against the 7 th respondent. 2.1. The above second appeals arise against the judgment and decree dated 15.3.1985 made in O.S.No.99 of 1974, laid by one Guruvammal ( deceased) and Raju alias Subramanian, impleaded as per the order of the learned Subordinate Judge, Ramnad in I.A.No.307 of 1981 dated 1.7.1 982, for declaration of the settlement deed dated 10.7.1973, marked as Ex.B8, said to have been executed by one Raju Asari, son of Kuttayan Asari and the husband of one Guruvammal (decesased) in favour of the first defendant Chelladurai Asari, S/o.Velu Asari, who is nonetheless the cousin of Raju Asari, son of Kuttayan Asari, and to set aside the two sale deeds dated 6.9.1973, marked as Exs.B6 and B7, executed by the said Raju Asari, Son of Kuttayan Asari in favour of the defendants 2 and 3, who are the appellants in Second Appeal No.581 of 1989 and to declare that the plaintiff is entitled to the suit property and consequently for recovery of possession of the said suit property. 2.2. The plaintiff in the suit seeks the above relief based on a Will dated 18.12.1970, marked as Ex.A6, executed by the said Raju Asari, son of Kuttayan Asari, contending that after execution of the Will dated 18.12.1970, the testator Raju Asari, son of Kuttayan Asari became unsound in mind and therefore, the settlement deed dated 10.7.197 3 as well as two sale deeds even dated 6.9.1973 executed against the appellants in S.A.No.581 of 1989 are declared to be illegal.

2.3. The suit was resisted by the settlee under the settlement deed dated 10.7.1973 and the purchasers under the two sale deeds even dated 6.9.1973, who are nonetheless the appellants in S.A.No.581 of 1989 contending that the said settlement deed and sale deeds being executed subsequently to the Will dated 18.12.1970 would prevail over the Will dated 18.12.1970. 2.4. The learned Subordinate Judge, Ramanathapuram, by judgment and decree dated 15.3.1985 appreciating the evidence, both oral and documentary, adduced on behalf of the plaintiffs and the defendants, accepted the case of the plaintiffs and decreed the suit, against which, the settlee under the settlement deed dated 10.7.1973 preferred A.S. No.123 of 1985 while the purchasers under the sale deeds even dated 6.9 .1973 preferred A.S.No.64 of 1985 before the learned Additional District Judge, Ramanathapuram, who by common judgment and decree dated 12 .12.1988 dismissed both the appeals and confirmed the judgment and decree of the learned Subordinate Judge, Ramanathapuram dated 15.3.1985 . Hence, the settlee under the settlement deed dated 10.7.1973 and the purchaser under the two sale deeds even dated 6.9.1973 have preferred S.A.Nos.662 of 1989 and 581 of 1989 respectively.

3. Heard both sides.

4. It is not in dispute that a Division Bench of this Court by an order in L.P.A.No.26 of 1980 confirmed that the settlement deed dated 1 0.7.1973 is illegal as the same was executed by the said Raju Asari, son of Kuttayan Asari in favour of Chelladurai Asari, son of Velu Asari, when the settlor was not in sound mind. The above finding had admittedly become final.

5. Taking note of the above finding and also appreciating both the oral and documentary evidence adduced on behalf of the plaintiff, both the Courts below had concurrently held that the sale deed executed on 6.9.1973, which is subsequent to the settlement deed dated 10.7.197 3 is also illegal, as the vendor therein namely, Raju Asari, Son of Kuttayan Asari, who is nonetheless the husband of the first plaintiff Guruvammal (deceased) was not in sound mind at the time of execution of the above documents.

6. The crux of the issue that arises for my consideration in the above second appeals is whether Raju Asari, son of Kuttayan Asari, the settlor in settlement deed dated 10.7.1973 and vendor in sale deeds dated 6.9.1973 was sound in mind at the time of execution of settlement deed marked as Ex.B8, and sale deeds marked as Exs.B6 and B7.

7. Admittedly, a Division Bench of this Court has held in L.P.A.No.2 of 1980 held that Raju Asari, Son of Kuttayan Asari, was not sound in mind while executing the settlement deed dated 10.7.1973. It is only appreciating the above state of mind of the Raju Asari, son of Kuttayan Asari and taking note of the oral and documentary evidence adduced by the plaintiff, both the Courts below found that the vendor Raju Asari, son of Kuttayan Asari was not in sound mind at the time of execution of the two sale deeds dated 6.9.1973, marked as Exs.B6 and B7.

8. If that be so, as the issue whether the person was sound in mind or not at the time of executing the documents marked as Exs.B6, B7 and B8, is purely a question of fact, it may not be proper for this Court to interfere with such finding on question of fact, exercising the jurisdiction conferred under Section 100 of the Code of Civil Procedure. Hence, these second appeals are dismissed. No costs. 12.6.2002

Index: Yes

Internet : Yes

sasi

To:

1. The Additional District Judge

Ramnad at Madurai (With Records)

2. The Subordinate Judge

Ramand at Madurai (With Records)

3. The Section Officer

'VR' Section, High Courts

Madras.

Sasi

P.D.DINAKARAN,J.

S.A.Nos.581 and 662 of 1989




Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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