Madras High Court
Santhanam Mariyammal vs Felix on 27 September, 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 27.09.2018 RESERVED ON : 07.09.2018 PRONOUNCED ON : 27.09.2018 CORAM THE HONOURAB4LE MR.JUSTICE C.V.KARTHIKEYAN Appeal Suit (MD)Nos.280 of 2008 and 198 of 2009 A.S.(MD)No.280 of 2008:- 1.Santhanam Mariyammal 2.L.Adakalaraj (Died) 3.Sevin Joseph 4.Emalda Richard 5.Rajam Selvaraj 6.L.Paulraj 7.Rani George 8.Lena Ralf 9.A.Selvaraj 10.Robert Rajendrakumar Selvaraj 11.Timo Saldhena Selvaraj 12.Rani Adaikalaraj 13.Joseph Louis 14.Joseph Francis 15.Vincent Adaikalaraj 16.Joan Clarice 17.Nirmala Bastin ... Appellants Vs 1.Felix 2.Isabella Gnanaraj 3.L.Gnanaraj 4.L.Irudhayaraj (Died) 5.Isabella Irudhayaraj 6.Edmand 7.Asha Vincent 8.Hema George ... Respondents (Appellants 9 to 11 were brought on record as legal representatives of the deceased 5th appellant and appellants 12 to 17 were brought on record as legal representatives of the deceased second appellant vide order dated 18.06.2015 in M.P(MD)Nos.3 and 4 of 2015) (R5 to R8 are brought on records as legal representatives of deceased fourth respondent, vide order dated 20.04.2018 made in CMP(MD)No.3979 of 2018 in A.S.(MD)No.280 of 2008) Prayer: Appeal Suit is filed under Section 96 of the Code of Civil Procedure, to set aside the decree and judgment of the Fast Track Court, Tiruchirapalli, passed in O.S.No.59 of 2004, dated 03.04.2008. !For Appellants : Mr.P.R.Raman Senior Counsel for Mr.C.Seethapathy ^For R1 to R3 : Mr.AR.L.Sundaresan, Senior Counsel for Mr.R.Devaraj and Ms.J.Maria Roseline R4 : Died For R5 and R6 :Mr.Arumugam for Mr.R.Vijayakumar A.S.(MD)No.198 of 2009:- 1.L.Irudayaraj (Died) 2.I.Isabella 3.Idmand Sahayaraj 4.Asha Sahayarani 5.Hema Sahayarani ... Appellants Vs 1.Felix 2.Isabella Gnanaraj 3.Santhanamariyammal 4.L.Adaikalaraj 5.L.Gnanaraj 6.Selin Joseph 7.Emelda Richard 8.Rajam Selvaraj 9.L.Paulraj 10.Rani George 11.Lena Raeph .... Respondents (Appellants 2 to 5 are brought on record as legal representatives of the deceased sole appellant vide order dated 21.06.2018 made in C.M.P.(MD)Nos.4779 and 4780 of 2018 in A.S.(MD)No.198 of 2009) Prayer: Appeal Suit is filed under Section 96 of the Code of Civil Procedure, to set aside the judgment and decree dated 03.04.2008 made in O.S.No.59 of 2004 on the file of the Additional District & Sessions Court (Fast Track Court No.1), Trichy. For Appellants : Mr.Arumugam for R.Vijayakumar For R1, R2 and R5 : Mr.AR.L.Sundaresan, Senior Counsel for Mr.R.Devaraj and Ms.J.Maria Roseline R4 and R8 : Died For R3, R6, R7, R9 to R11 : No Appearance :COMMON JUDGMENT
Both appeals have been filed against the judgment and decree, dated 03.04.2008 in O.S.No.59 of 2004 on the file of the Additional District & Sessions Court (Fast Track Court No.1), Trichy.
2.A.S.(MD)No.280 of 2008 had been filed by the 1st, 2nd, 5th, 6th, 7th, 8th, 9th and 10th defendants in the suit. A.S.(MD)No.198 of 2009 had been filed by the 4th defendant in the suit. Pending appeals, 2nd and 5th appellants in A.S.(MD)No.280 of 2008 died and the appellants No.9 to 11 were brought on record as legal representatives of the deceased 5th appellant and appellants No.12 to 17 were brought on record as legal representatives of the deceased 5th appellant. The 4th respondent in A.S.(MD)No.280 of 2008, who was actually the 4th defendant in the suit and was the appellant in A.S.(MD)No.198 of 2009 also died and his legal representatives were brought on record as 5th to 8th respondents in A.S.(MD)No.280 of 2008 and as 2nd to 5th appellants in A.S.(MD)No.198 of 2009.
3.O.S.No.59 of 2004 had been filed by Soosaiammal, against Santhanamariammal and her sons and daughters, who were shown as 2nd to 10th defendants, seeking a judgment and decree for partition and separate possession of one half share and for a direction against the defendants to render a true and proper accounts of the income from the suit schedule property from 21.09.1995 and pay that amount together with interest at 9% per annum and also for a direction to pay future profits in accordance with the share of the plaintiff and for costs of the suit. Pending suit, Soosaiammal died and her legal representatives were brought on record as 2nd and 3rd plaintiffs.
Amended Plaint:-
4.Soosaimmal was the sister of late A.S.G.Lourdusamy Pillai. The first defendant, Santhanamariammal, was the wife of A.S.G.Lourdusamy Pillai. 2nd to 10th defendants were the children of first defendant and A.S.G.Lourdusamy Pillai. The father of the plaintiff and A.S.G.Lourdusamy Pillai, was A.S.Gnanathikkam Pillai. He had two brothers, Innasimuthu Pillai and Santhanasamy Pillai. Their father was Appavoo Pillai. Gnanathikkam Pillai was a Railway Contractor and Appavoo Pillai carried on business in timber, under the name of ?Appavoo Pillai and Sons?. They earned substantial amounts of money. It was claimed in the plaint that after the demise of Appavoo Pillai, the properties were orally divided among his sons in 1937. Gnanathikkam Pillai died in 1938. The properties allotted to his share were managed by his son, A.S.G.Lourdusamy Pillai.
5.The plaintiff claimed one half share of the properties, which fell to the share of Gnanathikkam Pillai. It was also claimed that A.S.G.Lourdusamy Pillai acquired further properties in his name and in the name of his wife, the first defendant and it was claimed that the said properties were acquired from and out of the income derived from the properties allotted to the father Gnanathikkam Pillai. It was claimed that A.S.G.Lourdusamy Pillai had alienated number of properties in favour of the first defendant and other third parties. It was subsequently claimed that he had no right to deal with the properties, as his exclusive properties.
6.The plaintiff issued an Advocate notice on 16.05.1998 to the defendants. The 1st and 4th defendants issued reply notices, dated 23.06.1998 and 10.06.1998 respectively. In the said reply notices, the 1st and 4th defendants claimed that a partition deed dated 31.12.1942 had been registered. In the partition deed, the plaintiff and her brother A.S.G.Lourdusamy Pillai and the brothers of their father, Gnanathikkam Pillai, namely, Innasimuthu Pilllai and Santhanasamy Pillai, divided the properties among themselves and for the share of the plaintiff, a sum of Rs.25,325.13 annas and 5 paise had been paid as her share. It was further stated in the reply notices that she had executed a stamped receipt on 06.03.1948 confirming the receipt of the consideration.
7.In the plaint, it was further stated that she was married in the year 1939, and after marriage, she and her husband A.R.James stayed with A.S.G.Lourdusamy Pillai and he supported them financially and otherwise. At that time, he had obtained her signatures in some documents by saying properties had been allotted to her. She signed the papers believing that her brother would not make any false representations. But, later, she came to know that her brother had made false representations and obtained her signatures in the documents, dated 31.12.1942 and 06.03.1948. She claimed that those documents have no value in the eye of law. She further stated that she came to know about the existence of those documents only from the reply notices sent by the 1st and 4th defendants.
8.It was further stated in the plaint that in the reply notices, issued by the first defendant, it was stated that the A.S.G.Lourdusamy Pillai had executed a Will dated 22.01.1978. The plaintiff denied the said execution of the Will. A.S.G.Lourdusamy Pillai died in 1984. After his death, the properties were under the possession of the first defendant. The plaintiff claimed partition and separate possession of one half share and claiming rended of accounts to be provided.
Written Statements:-
9.The first defendant filed a written statement, denying the allegations. She specifically denied that there was oral partition in the year 1937 among the sons of Appavoo Pillai. She further denied that properties had been allotted to Gnanathikkam Pillai and were administrated by her husband A.S.G.Lourdusamy Pillai. The allegations in the plaint that A.S.G.Lourdusamy Pillai acquired a number of properties in her name from and out of the income derived from the properties allotted to Gnanathikkam Pillai was also specifically denied. It was stated that the properties dealt with by A.S.G.Lourdusamy Pillai were his exclusive properties. It was further denied that the plaintiff was under care and custody of A.S.G.Lourdusamy Pillai and that utilizing such opportunity, he misrepresented to her and obtained signature in various papers. It was specifically stated that A.S.G.Lourdusamy Pillai had executed a Will. It was further stated that the plaintiff was a party to a registered partition deed, dated 31.12.1942 entered into by her along with A.S.G.Lourdusamy Pillai with Innasimuthu Pillai and Santhasamy Piilai. Properties were allotted to each branch and specific provisions was made for the plaintiff also. She received a sum of Rs.25,325.13 annas and 5 paise. It was further stated that she had confirmed the receipt of such consideration in a stamped receipt dated 06.03.1948. It was therefore, stated that the plaintiff cannot claim any share over the properties allotted under the partition deed or under what she termed in an oral partition deed in the year 1937. It was stated that the suit was not maintainable without seeking to set aside the registered partition deed and the stamped receipt. It was further claims that the plaint should be rejected and the suit should be dismissed.
10.The second defendant filed a written statement on the same lines. He also stated that the plaintiff had signed the partition deed, dated 31.12.1942 and subsequently the release deed, dated 06.03.1948. It was specifically denied that A.S.G.Lourdusamy Pillai acquired properties from the income derived the properties allotted to Gnanathikkam Pillai. It was stated that the properties of A.S.G.Lourdusamy Pillai were his absolute properties. The allegations that A.S.G.Lourdusamy Pillai obtained signature of the plaintiff in blank papers were specifically denied. It was further specifically emphasized that the plaintiff had executed the partition deed, dated 31.12.1942 and the receipt dated 06.03.1948. It was stated that the suit should be dismissed.
11.The fourth defendant also filed a written statement again on the very same lines. He also stated that the plaintiff had participated in the execution of a registered partition deed dated 31.12.1942 and also had executed release deed dated 06.03.1948. It was further stated that A.S.G.Lourdusamy Pillai had prescribed title to the properties in question by long, continuous possession and enjoyment apart from acquisition of title by the partition deed dated 31.12.1942. It was further stated that the claim of the plaintiff was false. It was specifically denied that A.S.G.Lourdusamy Pillai misrepresented to the plaintiff and obtained her signature in various blank papers, which were later filled as a partition deed and as a receipt. It had been further stated that the documents have been acted upon and therefore, the suit should be dismissed.
12.The written statement of the fourth defendant was also adopted by the sixth defendant.
13.Pending the suit, the plaintiff died and her legal heirs were brought on record as 2nd and 3rd plaintiffs.
The issues:-
14.On the basis of the above pleadings, the learned Additional District Judge (Fast Track Court-I), Trichy, framed the following issues for trial:
?1.Whether the partition deed dated 31.12.1942 is true and valid and binding on the plaintiffs?
2.Whether the receipt dated 06.03.1948 is true and valid and binding on the plaintiffs?
3.Whether the plaintiffs are entitled to seek partition and direction for rendition of accounts?
4.To what other reliefs, the plaintiffs are entitled to??
15.The learned Judge also framed the following additional issues:
?1)Whether the partition deed was executed owing to the misrepresentation made by A.S.G.Lourdusamy Pillai, dated 31.12.1942?
2.Whether the receipt dated 06.03.1948 was executed based on the misrepresentation made by A.S.G.Lourdusamy Pillai?
3.Whether the suit is maintainable without a prayer seeking cancellation of the above two documents?
4)Whether the suit had been filed within the period of limitation?
5)Whether the defendants have prescribed title by long possession and adverse possession?
6)Whether the suit is bad for non-joinder of the purchasers of the properties from A.S.G.Lourdusamy Pillai?
7)To what other reliefs?:
The Trial:-
16.The parties were invited to let in oral and documentary evidence. During trial, the third plaintiff Isabella Gnanaraj, who was the daughter of the first plaintiff, Soosaimmal, was examined as PW-1. She marked Ex-A1 to Ex-A16. Ex-A1, dated 16.08.1998, was the copy of the advocate notice. Ex-A2, dated 10.06.1998 and Ex-A3, dated 23.06.1998 were the reply notices sent on behalf of the 4th and 1st defendants respectively. Ex-A9 and Ex-A10 were the copies of paper publication and Ex-A11 was the reply paper publication issued by the 4th defendant. Ex-A14 was the admitted signature of the deceased plaintiff, Soosaimmal in Tiruchirapalli City Cooperation Bank's jewel loan pass book. Ex-A15 was the admitted signature of A.R.James, the husband of the deceased first plaintiff in Indane Gas voucher.
17.On the side of the defendants, the fourth defendant, Irudayaraj, was examined as DW-1. He marked Ex-B1 to Ex-B14. Ex-B2 was the registration copy of the partition deed, dated 31.12.1942. Ex-B3 was the stamped receipt given by the first plaintiff, dated 06.03.1948. Ex-B4, Ex-B5 and Ex-B8 were the sale deeds executed by A.S.G.Lourdusamy Pillai and Ex-B7 was the power of attorney document executed by A.S.G.Lourdusamy Pillai. Ex-B10, Ex-B11, Ex- B12, Ex-B13 and Ex-B14 were the settlement deeds executed by the first defendant in favour of the 3rd, 4th, 8th and 9th defendants.
Findings of the Trial Court:-
18.On consideration of oral and documentary evidence, the learned Additional District Judge (Fast Track Court No.2), Trichy took up issues No.1, 2 and additional issues No.1 to 3 for discussion together. These were with respect to the validity of the partition deed, Ex-B2, dated 31.12.1942 and the stamped receipt, Ex-B3, dated 06.03.1948 and whether they were obtained through misrepresentation and fraud and whether the suit was bad for not seeking the relief of cancellation of those documents.
19.The learned Judge found that the execution of Ex-B2 and Ex-B3 were denied by the plaintiffs and therefore, held that the burden to prove the two documents shift to the defendants. It was found that the defendants had not taken any steps to prove the documents and discharge the burden. It was also found that no steps were taken to prove the signatures in the said documents. The learned Judge also found that Ex-B2 and Ex-B3 were void document and consequently there need not be a prayer to cancel them. It was also found that there was no evidence to show that the amount mentioned in Ex-B3 were actually paid to the first plaintiff. The learned Judge held that the burden was on the defendants to prove payment of that consideration and that accounts were not produced to prove such payment.
20.The learned Judge also found that in Ex-B3, the writings were in the entire first page and in the second page the writings were close each other and consequently held that the signatures were obtained in blank papers. The learned Judge disbelieved the evidence of the defendants and held that the documents were not genuine. He also found that the partition deed, Ex-B2, was not acted upon. The learned Jude also found that the first plaintiff was under the care and custody of A.S.G.Lourdusamy Pillai and consequently held that it was probable that she would have signed the document under misrepresentation. The learned Judge found it strange that the second defendant, who was the eldest son did not come forward to give evidence and on the other hand, the fourth defendant given evidence. The learned Judge finally found that both the documents were not genuine documents and that the suit is not bad for not seeking any relief for cancellation and also held that the suit is maintainable and that the plaintiffs were entitled to the reliefs of partition and for accounts as prayed for.
A.S.(MD)No.280 of 2008 and A.S.(MD)No.198 of 2009:-
21.Challenging the said judgment and decree, the 1st, 2nd, 5th, 6th, 7th, 8th, 9th and 10th defendants filed A.S.(MD)No.280 of 2008 and the 4th defendant filed A.S.(MD)No.198 of 2009.
The arguments advanced:-
22.Heard arguments advanced by Mr.P.R.Raman, learned Senior Counsel for the appellant in A.S.(MD)No.280 of 2008 and Mr.A.Arumugam learned Counsel for the appellant in A.S.No.198 of 2009 and Mr.AR.L.Sundaresan, learned Senior Counsel for the contesting respondents in both the appeals.
23.Mr.P.R.Raman, learned Senior Counsel took the Court through the evidence in the case. He stated that the relief of partition had been sought in the place of registered partition deed executed on 31.12.1942, nearly, 56 years prior to the institution of the suit, in which doucment, the plaintiff herself was one of the signatories. The learned Senior Counsel further stated that under the partition deed, marked as Ex-B2, properties were allotted amongst the three branches / sons of Appavoo Pillai. The plaintiff and her brother A.S.G.Lourdusamy Pillai represented their deceased father, Gnanathikkam Pillai. The two brothers of Gnanathikkam Pillai, namely, Innasimuthu Pillai and Santhanasamy Pillai, were alive and were also signatories to the partition deed. The learned Senior Counsel further stated that even according to the averments in the plaint, the plaintiff claimed that her signatures had been obtained through misrepresentation. A document executed under misrepresentation is voidable in law and consequently, it has to be set aside on the motion of the person, who claims to be adversely affected by it.
24.The learned Senior Counsel also pointed Ex-B3, the stamped receipt dated 06.03.1948 and stated that the plaintiff had acknowledged the receipt of consideration as promised under Ex-B2. He further stated that in both documents, the husband of the plaintiff, A.R.James, was a signatory. Moreover, Innasimuthu Pillai and Santhanasamy Pillai were also the signatories in Ex-B3. The learned Senior Counsel further stated that if Ex- B2, partition deed has to be rejected, it has to be done only with notice to all the signatories to the document, which included Innasimuthu Pillai and Santhansamy Pillai and/or their legal heirs. Since, specific properties were also allotted to them, any finding that Ex-B2 is not valid, would directly affect those shares allotted to Innasimuthu Pillai and Santhanasamy Pillai. Therefore, in their absence or in the absence of their legal heirs, the suit has to be declared as bad for non-joinder of necessary parties.
25.The learned Senior Counsel further stated that if the plaintiff claimed that fraud had been played upon her, then it must be specifically pleaded and proved. The learned Senior Counsel further stated that Ex-B2 was a registered document and if fraud is pleaded, then the burden is on the person, who pleads fraud. The document being registered, a presumption is drawn under Section 114(e) of the Indian Evidence Act, 1872, in favour of the officer, who registered it that it was an act done in the normal course and in discharge of official duty. The learned Senior Counsel further stated that the trial Judge had not framed any issue on fraud. He also stated that the none of the witnesses had personal knowledge of the execution of the documents and consequently, findings adverse to the said documents can never upon drawn in the absence of direct evidence.
26.It was also pointed out by the learned Senior Counsel that the suit was instituted in the year 1998 and even prior to that, in the reply notice, existence of the two documents were pointed out and the plaintiff had not taken any steps either to call for the said documents or to specifically deny the execution of those documents. The learned Senior Counsel insisted that the judgment under appeal requires interference and stated that it should be set aside and the suit should be dismissed.
27.Mr.A.Arumugam, learned Counsel for the appellants in A.S.(MD)No.198 of 2009, stated that the suit should fail for non-joinder of necessary parties, namely, Innasimuthu Pillai and Santhanasamy Pillai and/or their legal heirs. The partition deed has to be upheld in entirety or it has to be struck down in entirety. If any discussion is to be made regarding its validity, It is the signatories to the said documents, namely, Innasimuthu Pillai and Santhanasamy Pillai or their legal heirs must be made parties and they must also be heard, since by striking down the document, shares allotted to them would also have to be re-examined and revisited. The learned Counsel also pointed out that the plaintiff signed in English in more than 57 pages in Ex-B2 and also in Ex-B3 and her own husband attested both the documents. The suit had been filed 56 years after the date of Ex-B2 and is hopelessly barred by limitation.
28.The learned Counsel also pointed the recitals that consideration will be given and stated that if the document is a fraudulent document, then by normal standards, it would have mentioned that consideration had already been paid. It was also pointed that A.S.G.Lourdusamy Pillai died only in 1984 and till his death, the plaintiff did not take any steps and even after his death, the suit was filed only in the year 1998. The learned Counsel also stated that the originals of Ex-B2 and Ex-B3 have been filed in Court and a presumption under Section 90 of the Indian Evidence Act, 1872, should be drawn in favour of the written document and no oral evidence can be let in contradicting the same. The learned Counsel also insisted that the suit should be dismissed.
29.Mr.AR.L.Sundaresan, learned Senior Counsel disputed the contentions raised on behalf of the appellants. The learned Senior Counsel pointed out the pleadings, wherein, the plaintiff had stated that she was under the custody of A.S.G.Lourdusamy Pillai and he conducted her marriage with A.R.James and the further pleadings that taking advantage of such circumstance, A.S.G.Lourdusamy Pillai misrepresented to her and obtained signatures in blank papers. It was stated that those papers have been used for preparation of Ex-B2, partition deed and Ex-B3 receipt. The learned Senior Counsel also stated that the plaintiff was seeking one half share only in the properties allotted to A.S.G.Lourdusamy Pillai and was not seeking shares in the properties allotted to Innasimuthu Pillai and Santhanasamy Pillai. The learned Senior Counsel pointed out that the suit is consequently not bad for non-joinder of necessary parties and also stated that Innasimuthu Pillai and Santhanasamy Pillai are unnecessary parties, insofar as reliefs claimed in the suit are concerned.
30.The learned Senior Counsel also stated that it is seen from Ex-B2, that it was registered in the residence and stated that the details of such registration had not been given in the written statement. The learned Senior Counsel also pointed that the signatures of the plaintiff, more particularly, the initial 'g' has opposed to 'j', which was the initial of her husband, A.R.James. She was married, but, had appended the initial 'g', which was the first letter of the name of her father, Gnanathikkam Pillai. The improbability of a married women appending her father's name as her initial was pointed out by the learned Senior Counsel. The learned Senior Counsel also took the Court through the evidence and stated that the plaint pleadings had been proved and PW-1 had also withstood cross examination. The learned Senior Counsel further stated that the burden was on the defendants to produce books of accounts to prove the payment of actual consideration, since it was mentioned that the consideration was actually paid by book adjustment in the business entities. Pointing out all the above, the learned Senior Counsel stated that the judgment under appeal does not require any interference and urged that it must be upheld and the suit must be decreed.
Points for determination:-
31.I have considered the arguments advanced on both sides.
32.The following points are raised for determination:
?1)Whether there had been an earlier partition on 31.12.1942 under Ex- B2 as contended by the defendants or whether the said document was obtained through misrepresentation as contended by the plaintiff?
2)Whether there was relinquishment of rights pursuant to such partition deed by the deceased plaintiff under Ex-B3, 06.03.1948 as contended by the defendants or whether the said document had been obtained through misrepresentation as contended by the plaintiff?
3)Whether Ex-B2 and Ex-B3 are void or voidable documents and whether specific relief should have been sought to set aside the said documents?
4)Whether the suit is bad for non-joinder of Innasimuthu Pillai and Santhanasamy Pillai, who were also signatories in Ex-B2 and Ex-B3?
5)Whether the plaint is barred by law of limitation?
6)Whether the plaintiffs are entitled for the relief of partition and consequential reliefs sought in the suit?
7)Whether the judgment under appeal is to be upheld or set aside??
33.Even though the defendants are appellants and the plaintiffs are respondents, the parties shall be referred as plaintiffs and defendants for easier appreciation of facts.
Points 1, 2 and 3:-
34.Appavoo Pillai carried on successful business in timber under the name of ?Appavoo Pillai and Sons?. His sons are Gnanathikkam Pillai, Innasimuthu Pillai and Santhanasamy Pillai. There was also a profitable business as railway contractor. Several properties were purchased from the income of the businesses. Gnanathikkam Pillai had a son, A.S.G.Lourdusamy Pillai and a daughter, Soosaimmal. He died in 1938. Soosaimmal is the plaintiff in the original suit. In the plaint, it is stated that after the death of Appavoo Pillai, his three sons orally divided the properties in the year 1937. She, however, claimed that the properties allotted to Gnanathikkam Pillai were managed and administered by her brother, A.S.G.Lourdusamy Pillai.
35.A.S.G.Lourdusamy Pillai died in the year 1984. She claimed that he, during his life time, dealt with the properties, which fell to the share of Gnanathikkam Pillai as his exclusive properties. She further claimed that she was entitled to an equal one half share in the properties, which had been allotted to Gnanathikkam Pillai in her capacity, as his daughter. She claimed that her marriage with her husband A.R.James, was conducted by A.S.G.Lourdusamy Pillai in the year 1939. She was under his care and custody, ever after her marriage. She further claimed in the plaint as follows:
?In the midst of these circumstances, the said Lourdusamy Pillai obtained the signature of the plaintiff in some documents on the specific representation that in the said document properties had been allotted to her. The plaintiff did not choose to go through the contents of the documents since she believed that her brother would not legitimate interests in the properties of her father.?
36.In the plaint, she further stated that claiming one half share in the properties of Gnanathikkam Pillai, she had issued an advocate notice, dated 16.05.1998. Since, A.S.G.Lourdusamy Pillai, died in the year 1984, this notice had been issued to the defendants in the suit, who were the widow and children of A.S.G.Lourdusamy Pillai. The first defendant, Santhanamariammal, the widow issued a reply notice, dated 23.06.1998 and the fourth defendant, her son, L.Irudhayaraj, issued a reply dated 10.06.1998.
37.The plaintiff disputed the contentions in the two reply notices. In the reply notices, it had been stated that a registered partition deed had been effected on 31.12.1942, which had also been executed by the plaintiff and her brother A.S.G.Lourdusamy Pillai, representing their father, Gnanathikkam Pillai, who had died in the year 1938 and was also executed by the brothers of Gnanathikkam Pillai, namely, Innasimuthu Pillai and Santhanasamy Pillai. In the said deed, properties were allotted separately to the branches of Gnanathikkam Pillai, Innasimuthu Pillai and Santhanasamy Pillai. It had also been covenanted that a sum of Rs.25,325.13 annas and 5 paise is to be paid to her in lieu of claim for properties. It had also been stated in the reply notices that she had also executed another document on 06.03.1948 relinquishing her claim over immovable properties. In the plaint, she had stated that it was only then that she realised ?that her brother, the said Lourdusamy Pillai, has made false representations to her and obtained her signatures in the documents dated 31.12.42 and 6.3.1948.?
38.She then stated that the documents have no effect or value in the eye of law. She further stated in the plaint that the properties were under the enjoyment and possession of the defendants. She claimed partition and separate possession of the properties, which were listed in the schedule to the plaint. She had valued the suit for the purpose of Court fee at Rs.7,73,375/- and had paid a Court fee of Rs.1,000/- for the relief of partition and separate possession. She also claimed future mesne profits and also sought a direction against the defendants to render a true and proper accounts of the income and profits earned from the properties.
39.It must be mentioned before entering into a discussion on the contentions raised in the written statement that even before the institution of the suit, the plaintiff had been informed about two documents, a registered partition deed, in which she was also a party, dated 31.12.1942 and a relinquishment deed, dated 06.03.1948. By the said two documents, the defendants had claimed that she was a party to the partition of properties among the family members and she had also received consideration in lieu of her share in the immovable properties. Effectively, they claimed that she cannot seek partition of properties once again.
40.The conduct of the plaintiff has to be examined in the light of the above facts. Even prior to the institution of the suit, she had been informed about the two documents, which had been produced as Ex-B2 and Ex-B3 and which are the subject matter of the points for determination. It is very strange that she did not ask for copies of the documents or atleast call upon the defendants or their Counsel to produce them. As a matter of fact, she had never sought them, even during the pendency of the suit. It must be mentioned that the suit was instituted on 21.09.1998 and she died on 28.08.2001. She was alive for nearly 3 years after the institution of the suit. The written statement of the first respondent is dated 20.04.2000 and of the fourth defendant is dated 09.12.1999. In both the written statements, references had been made to the said two documents and the plaintiff did not choose to file any reply statement denying the contents of the documents or that she did not sign the said documents or otherwise she signed them out of misrepresentation. She did not file any application to call upon the defendants to produce the two documents. She did not file a rejoinder to the reply notices. She did not send notice to the defendants to produce the said documents. She kept silent and that silence is very significant, as is evident from the facts of the case.
41.The 1st, 2nd and 4th defendants filed their written statements. Their contentions was that the plaintiff, Soosaimmal, her brother A.S.G.Lourdusamy Pillai, both represented their father, Gnanathikkam Pillai and joined in a execution of partition deed, partitioning the properties left behind by their grandfather, Appavoo Pillai. This partition was effected by them with two others sons of Appavoo Pillai, namely, Innasimuthu Pillai and Santhanasamy Pillai. This document had been produced as Ex-B2 during the course of trial. It is a registered document. As a matter of fact, one of the witnesses to the said document was the husband of the first plaintiff, A.R.James. In yet another document signed by Soosaimmal, the plaintiff, dated 06.03.1948, she had relinquished her claim over all immovable properties. The method in which she was paid consideration was also mentioned in the said document. It is very significant to note that this document dated 06.03.1948 was also witnessed by Innasimuthu Pillai and Santhanasamy Pillai, her own paternal uncles.
42.In the written statement, the defendants claimed that in view of the said documents, the plaintiff was estopped from seeking partition and separate possession. It was specifically stated that the documents have been accepted by her out of free will and consent. It had been specifically stated that she had received consideration for giving up her share in the properties allotted to Gnanathikkam Pillai. It was further stated that the suit is barred without seeking a relief to set aside the said documents. It was further claimed that suit is barred by the law of limitation.
43.Ex-B2 is the original partition deed, dated 31.12.1942. The document runs to 59 separate sheets. In each one of the sheets, it has been signed by A.S.G.Lourdusamy Pillai, G.Soosaimmal, A.Innasimuthu Pillai (in Tamil) and A.Santhanasamy Pillai. In the reverse of the first page, again, A.S.G.Lourdusamy Pillai, A.Innasimuthu Pillai, A.Santhanasamy Pillai have signed. The Sub-Registrar, had also signed it. It is further stated that ?the document of execution admitted in private residence of Soosaimmal?. Thereafter, G.Soosaimmal, W/o.A.R.James Pillai, also signed and she was identified by S.Arul.... (name not clear) Pillai, S/o. J.Santhanapillai. This had also been signed by the Sub-Registrar. By the said document, the properties have been divided and allotted to the shares of A.S.G.Lourdusamy Pillai and Soosaimmal, on the one hand, A.Innasimuthu Pillai on the other hand and A.Santhanasamy Pillai also on the other hand. It was stated as follows:
?ek;gspy; ,uz;L yf;fkpl;l R+ir mk;khSf;F Rkhh; 3 tUlj;jpw;F Kd; FLk;g nghJ ma;NtIpypUe;J fypahzk; nra;J &.5000-k; ngWk;gbahd eiffs; Nghl;Lk; rPh; tifawhf;fs; Vw;fdNt nfhLf;fg;gl;bUf;fpd;wd. mJ epw;f ehk; rk;kjpj;Jf;nfhz;lgb Nkw;gb epYit tR+y;fisf; nfhz;L Nkw;gb 2 yf;fkpl;l R+ir mk;khSf;F Nkw;gbahh; ,];lk;Nghy; 1 yf;fkpl;lth; Rkhh; &.20000-0-0 ,UgJ Mapuk; ngWkhdj;Jf;F FbapUg;Gf;F xU tPLk;> ,uz;L Vf;fh; eQ;ir epyq;fSk;> khjk; xd;Wf;F &.50-0-0f;F Fiwtpy;yhky; tUkhdk; tuf;$ba xU ];NlhUk;> ,d;W Kjy; %d;W khjf; nfLtpy; thq;fp nfhLj;Jtpl Ntz;baJ jtwpdhy; jtwpd Njjp Kjw;f;nfhz;L nrhj;Jf;fs; thq;fp nfhLf;Fk; tiuapy; &.100-0-0f;F &.0-8-0mzh vl;L tPjk; tl;b Nrh;j;J 1 yf;fkpl;lth; nfhLf;f Ntz;baJ?.
44.A reading of the said document reveals that it was not just A.S.G.Lourdusamy Pillai, who was involved in giving cash and other benefits to the first plaintiff, Soosaimmal, in lieu of her share in the properties, but, it was a joint decision also taken by he two other signatories, Innasimuthu Pillai and Santhanasamy Pillai. This document had also been witnessed by A.R.James, s/o C.Rajendra Pillai. It was also witnessed by two other witnesses.
45.As stated above, the document is a registered document and the seal and signature of Sub-Registrar is found on the each and every sheet on the reverse side. The contention of the plaintiff is that she was not aware about the signing of the particular document, but, she claimed that her signatures were obtained in blank papers through misrepresentation by her brother A.S.G.Lourdusamy Pillai. In all the pages in Ex-B2, first signatory is A.S.G.Lourdusamy Pillai, the second signatory is the plaintiff, Soosaimmal, the third signatory is Innasimuthu Pillai and the fourth signatory is Santhanasamy Pillai. The signature of the plaintiff, Soosaimmal, is juxtaposed in equal distances between the first and third signatures. The signature of her husband runs just after the signature in the last page. The signatures in each of pages have been affixed immediately after the last written line. In page No.32, 'B' schedule had been given, which was the share of Soosaimmal, it had been provided as follows:
?1 yf;fkpl;lth; ,e;j n\l;a+y;fhdth; ghfj;Jf;fhf A n\l;a+y; ghf nrhj;jpypUe;J gj;jpu Njjp Kjy; %d;W khr nfLtpy; ];jhtunrhj;jha; thq;fp nfhLf;f Ntz;bajha; Nkw;gb 5tJ ghuhtpy; fz;lgb nfhLj;JtpLtJ ,e;j n\ba+y; nrhj;jpd; tUkhdk; 20000---.?
46.The above had been encompassed in half a page in the document and the signatures of the parties appear just below the last line in the middle of the page. If the signatures had been obtained in blank papers, it would be highly improbable that in specific pages alone, the signature would have been obtained in the middle of a blank paper. In page No.52, again, the signature had been in the middle of the page. This related to 'C' schedule property. In page No.57, related to 'D' schedule property and property allotted to Santhanasamy Pillai, again, the signature had been affixed in about three fourth of the page. These facts are pointed out to show that it is highly impossible to accept the contentions of the plaintiff that she signed in blank pages or in a document without knowing the contents thereof.
47.As a matter of fact, the issue which was framed for consideration by the trial Court was whether the document Ex-B2, had been obtained by fraud. Fraud had not been alleged or pleaded in specific terms in the plaint. Misrepresentation alone had been pleaded. If the documents had been obtained by misrepresentation, then the documents become voidable documents. Misrepresentation had been defined in Section 18 of the Indian Contract Act, 1872, and it is as follows:
?18."Misrepresentation" defined.-"Misrepresentation" means and includes-
(1) the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true (2) any breach, of duty which, without an intent to deceive, gains an advantage to the person committing it, or any one claiming under him, by misleading another to his prejudice or to the prejudice of any one claiming under him;
(3) causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.?
48.To repeat, in the plaint, the plaintiff had stated as follow:
?that her brother, the said Lourdusamy Pillai, has made false representations to her and obtained her signatures in the documents dated 31.12.42 and 6.3.1948.?
49.The plaintiff had also later stated as follows:
?The plaintiff now understands that a colossal fraud has been played upon her by her brother himself. It is the rarest of the rate cases in which a brother has deliberately deprived the sister of her interests in the properties of her father.?
50.This pleading of alleged fraud is not sufficient. Under Order VI Rule 4 of CPC, is as follows:
?4. Particulars to be given where necessary? In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.?
51.A reading of the above provision indicates that particulars have to be given with dates in the pleading. Fraud / misrepresentation will also have to be proved. It must also been taken in mind that fraud must be alleged not only against A.S.G.Lourdusamy Pillai, but also against Innasimuthu Pillai and Santhanasamy Pillai. The entire documents would have to be challenged as vitiated by fraud. This would also mean that Innasimuthu Pillai and Santhanasamy Pillai or their legal heirs must have been made parties to the suit, since the allotment of properties to them will also have to be challenged by the plaintiff.
52.Further, under Section 114 (e) of the Indian Evidence Act, 1872, the Court may presume that official acts have been performed in the normal course in discharge of official duty. In the present case, Ex-B2 is a registered document. Unless, the plaintiffs to establish that fraud had been played upon them by all the signatories and also by the Sub-Registrar, the documents cannot be assailed. It has to be mentioned that the first plaintiff did not call for copies of the document, when they were specifically mentioned in the reply notices and in the written statement. She was alive for about 3 years subsequent to the institution of the suit. She did not file any reply statement, challenging the averment made in the written statement. The entire document has to be upheld or the entire documents has to fail. It cannot fail because all the parties to the document have not been joined as parties to the suit.
53.Another contention raised by the learned Senior Counsel for the plaintiff is that the first plaintiff had affixed her signature as 'G.Soosaimmal', and not as 'J.Susaimmal'. The learned Senior Counsel stated that 'G' stand for Gnanathikkam and the first plaintiff having been married, it would only expected that she would be put her initial as 'J' to identify herself with her husband. These are issues, which the first plaintiff should have clarified, when she was alive and these are issues, which she should have pointed out. She did not do so. She did not file her written statement. She did not bother to call for the copies of the documents to examine them and express her opinion, which would have been the best and direct evidence on the issues raised by her legal representations. I hold that this, issue cannot be a ground to set aside the documents.
54.As a matter of fact, as stated above, the original documents have been filed in Court and in each and every page, the plaintiff has affixed her signature between the signatures of A.S.G.Lourdusamy Pillai and Innasimuthu Pillai. If her signatures had been obtained in blank papers or if she had not know the contents of the documents, she cannot be expected to sign many as 57 pages, some at the bottom and some at the middle and some at 3/4th of the page. Any normal individual would question the necessity to obtain signature in so many sheets of papers. Incidentally, she had also signed on the reverse of the first page, which signature had also been attested by the Sub- Registrar along with the other identifying witnesses. Her husband had also signed as witness. I hold that the plaintiffs are clinging to a fictitious and frivolous claim. They plead ignorance and innocence and seek indulgence of this Court. This cannot be permitted.
55.Insofar as Ex-B3 is concerned, the original of that document also been perused by this Court. In the second page, the first plaintiff had signed over the revenue stamp. The writings are in Tamil. It is not the contention of the first plaintiff that she does not know to read Tamil. Even in this document, Innasimuthu Pillai and Santhanasamy Pillai have signed as witnesses along with her husband, A.R.James. If this document is to be assailed, then Innasimuthu Pillai and Santhanasamy Pillai and/or their legal representatives should also have been made parties to the suit, since, they also stand in the same footing, as that of A.S.G.Lourdusamy Pillai. The document speaks about payment of consideration and they are equally answerable if as claim by the plaintiffs, the doubt does not reflect the truth.
56.The learned Senior Counsel for the plaintiffs raised a contentions about the statements in Ex-B2 and Ex-B2 regarding the manner in which the consideration was paid. Again, if consideration had not been actually paid, then the burden was on the first plaintiff to assert that fact forcefully calling for the copies of the documents and protesting the covenants therein, the minute in the reply notices were received mentioning about them is one form of forceful assertion. She did not do so. The learned Senior Counsel for plaintiff drew a parallel with proceedings sunder Section 138 of Negotiable Instruments Act, and stated that once a signatory to the cheque denies receipt of consideration, then onus shift to the complainant to prove that consideration had been passed and do so, if accounts books are to be produced, then they have to be produced. I have considered that argument carefully. I would, very gently state, that in a civil suit, preponderance of probabilities is sufficient, while, in proceedings under Section 138 of the Negotiable Instruments Act, proof beyond reasonable doubt is required to be established by the complainant before the accused can be convicted and sentenced for the offences. In this case, the marking of the original documents in Ex-B2 and Ex-B3 is sufficient to drew a strong presumption in these favour genuinity and if the plaintiff seeks to challenge those documents, then she must first plead fraud, then prove fraud and also implead as defendants all individuals, who were signatories to the documents, in which her signatures had been obtained by fraud / misrepresentation. Non- joinder is fatal to her case.
57.The two documents are claimed by her to be the results of false representations. This would naturally mean that they are voidable. If they are voidable, then they have to be set aside in manner known to law. They cannot be simply brushed away. The very fact that her husband, A.R.James, have been invited to sign as a witness and he had actually signed as a witness is sufficient to hold that the documents are genuine. As a matter of fact, the first plaintiff had not denied her signature. Ex-B2 is dated 31.12.1942 and Ex-B3 is dated 06.03.1948. The plaintiffs should have to establish that for the entire period more than 5 years, she had been put to disadvantage by A.S.G.Lourdusamy Pillai, Innasimuthu Pillai and Santhanasamy Pillai. She laid these claams in 1998 more than six decades later than the date of the documents.
58.Section 19 of the Indian Evidence Act, 1872, is as follows:
?Where any document, purporting or provided to be thirty years old, is produced from any custody which the court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person?s handwriting, and, in the case of a document executed or attested, that it was duly executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.?
59.The originals of Ex-B2 and Ex-B3 have been produced in Court. The defendants have not hid to behind any screen. They have produced the documents. The legal heirs of the first plaintiff can never let in any credible evidence challenging the said documents. The first plaintiff had her chance. She never even called upon the defendants to serve her copies of the documents. Ex-B2 and Ex-B3 have also been acted upon. As a matter of fact, in Ex-B8, sale deed, Ex-B2 has been referred to. The first plaintiff did not object to the sale deed. I hold that till the documents are specifically set aside, the documents are valid and enforceable in law.
60.On the side of the plaintiffs, the third plaintiff, Isabella Gnanaraj, was examined as PW-1. She was aged 61 years on the date of her chief examination, on 14.11.2003. By any conservative mathematical calculation, she should have been born in the year 1942. She must have a babe in the arms, when Ex-B2 was executed and a child when Ex-B3 was executed. She consequently cannot have any direct knowledge about two documents. She stated in her chief examination that she and her mother gave instructions for issuing the Advocate notice prior to the institution of the suit. Then, she must have direct knowledge about the averments made in the reply notices. In fact, in her chief examination, she stated as follows:
?1, 4k; gpujpthjpfs; mDg;gpa gjpy; mwptpg;gpfspy; ,Ue;J vdJ jhahUk; ehDk; Vkhw;wg;gl;lij njhpe;Jnfhz;Nlhk;.?
61.She did not call for copies of the documents. Without perusing documents, she however stated in her chief examination ?Mdhy; mJNghy; vd; jhahh; me;j ,uz;L Mtzq;fisAk; vOjpf; nfhLf;ftpy;iy?. This statement is false and speculative, since, it was spoken without any direct knowledge. The witness was creating a story. The entire chief examination reads as evidence of a well tutored person. She then stated that her mother informed her that signatures were obtained by misrepresentation that properties were to be allotted. The mother, either through design or through calculated strategy did not come forward to file rejoinder to the reply notice, to file reply statement or to give evidence, even though she was alive for above 3 years subsequent to the institution of the suit.
62.During cross examination, PW-1 had admitted as follows:
?vdJ jhahh; vd; je;ij mwpTiuia Nfl;L fhhpaq;fs; nra;Js;shh;?
63.The father, who advised PW-1 mother, was signatory as the witness in both Ex-B2 and Ex-B3. The witness stated everything out of hearsay. She did not have any direct knowledge. The untruthfulness of the witness is exposed by this statement in cross examination. ?1k; gpujpthjp gjpy; mwptpg;gpy; 1942y; ghfgphptpid Vw;gl;lJ gw;wp nrhy;ypapUg;gJ njhpahJ? when the witness had admitted that she gave instructions for preparation of the notice, she cannot disclaim knowledge of the contents of the reply notices. She then admitted further in cross examination that ?1942y; ghfgphptpid Vw;gl;lJ gjpy; mwptpg;gpy; nrhy;yg;gl;lJ. ,Jgw;wp vd; jhahUk; ehDk; tof;Fiuapy; vJTk; nrhy;ytpiy.? The law requires that under Order VI Rule 4 of CPC, fraud / misrepresentation must be pleaded in specific terms and must also be proved. The witness denied the signature of her mother and father in Ex-B2 document. In fact, this statement is false. The mother had not denied her signature. She admitted signing documents. I hold that the plaintiffs are speculative fortune hunters.
64.The suit itself is speculative in nature. I hold that Ex-B2 and Ex- B3 are binding documents. They cannot have been obtained through misrepresentation. They have been acted upon. They have not been complained of for more than 60 years. They have not been complained of for nearly 14 years, after the death of A.S.G.Lourdusamy Pillai. The suit had been cleverly drafted without seeking a relief to set aside the documents. I f that relief had been sought, the plaint would not even have been numbered, as the plaintiff wold have explain the issue of limitation. The suit filed, without impleading the legal heirs of Innasimuthu Pillai and Santhanasamy Pillai, is bad for non-joinder of necessary parties. There had been earlier partton a s evidenced by Ex-B2 and the first plaintiff had relinquished her share as evidenced by Ex-B3. The two documents are binding on the plaintiffs, and they are not void. Even if they are voidable, the suit is bad for not including the relief to set them aside. In view of the above discussion, I hold that the points for determination 1, 2 and 3 are answered against the plaintiffs.
Point-4:-
65.This relates to whether the legal heirs of Innasimuthu Pillai and Santhanasamy Pillai should have been made parties to the suit. In Ex-B2, substantial properties have been specifically allotted to Innasimuthu Pillai and Santhanasamy Pillai. Ex-B2 is assailed by the plaintiff. It is very innocently claimed that the plaintiffs are not questioning shares from the properties allotted to Innasimuthu Pillai or Santhanasamy Pillai, but, only claim a share in the properties which were allotted to A.S.G.Lourdusamy Pillai.
66.It was stated by PW-1 during her evidence that whether the signatures found are not the signatures of the first plaintiff. It was also stated by PW-1 that the signatures said to have been the signatures of her father, A.R.James, were not the signature her of father. If that is the specific stand taken, then the entire document should have been attacked on the ground of forgery and fraud. However, forgery was not pleaded by the first plaintiff, when she originally instituted the suit. If the document is to be declared as fraudulently prepared, then the entire document has to fail. This would mean that the document was signed by Innasimuthu Pillai and Santhanasamy Pillai knowing it to be a document obtained by fraud. If this is the stand, then they or their legal representatives must also have been made parties to the suit. It must be mentioned that in each and every page, A.S.G.Lourdusamy Pillai first signed. Then the signature of the plaintiff is found and then Innasimuthu Pillai and Santhanasamy Pillai have signed. Naturally, if they were to sign subsequent to the signature of the first plaintiff, then if the stand of the plaintiffs are to be accepted then they have signed knowing fully well that the signatures of the first plaintiff was were obtained by fraud / misrepresentation. This is stretching of inferences too for. But in a suit of that nature, they or their legal representatives must be made parties to the suit.
67.Order I Rule 3 of CPC is as follows:
?3. Who may be joined as defendants? All persons may be joined in one suit as defendants where?
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of law or fact would arise.
68.A reading of the above provision shows that A.S.G.Lourdusamy Pillai , Innasimuthu Pillai and Santhanasamy Pillai stand on the same footing insofar as Ex-B2 and Ex-B3 are concerned. Consequently, I hold that the suit will have to necessarily fail by reason of non-joinder of necessary parties.
69.Order I Rule 9 CPC is as follows:
9. Mis-joinder and non-joinder? No suit shall be defeated by reason of the mis-joinder or non-joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and interests of the parties actually before it:
[Provided that nothing in this rule shall apply to non joinder of a necessary party.]
70.The provision clearly shows that non-joinder of necessary parties shall defeat the suit. The plaint is bad for non-joinder of Innasimuthu Pillai and Santhanasamy Pillai or their legal heirs. This issue is answered against the plaintiff in the suit.
Point- 5:-
71.The period of limitation, to cancel or set aside the instrument, is three years under Article 59 of the Limitation Act. The period of recovery of possession is 12 years under Article 65 of the Limitation Act. The plaintiff must have been aware that under the partition deed, the properties have been enjoyed and dealt with her direct knowledge by the defendants and by Innasimuthu Pillai and Santhanasamy Pillai but had not taken any steps whatsoever. She had been sleeping for more than 60 years.
72.The suit had been framed seeking partition. In fact it is a suit for recovery of possession. The earlier registered partition deed stores in the face of the plaintiffs. The suit is hopelessly barred by limitation. Ex-B2 is dated 31.12.1942. Ex-B3 is dated 06.03.1948. A.S.G.Lourdusamy Pillai died in the year 1984. The suit had been filed on 21.09.1998. Even if the cause of action is stretched to the date of death of A.S.G.Lourdusamy Pillai, the suit is barred by limitation. I hold that the suit had been innocently framed as if it is a suit for partition. It is actually a suit for recovery of possession and it should have instituted within 12 years from 1942. Even if the period is extended to the date of death of A.S.G.Lourdusamy Pillai, the suit is clearly barred by limitation. The issue is answered against the plaintiff.
Point-6:-
73.In (2008) 15 SCC 673 (in the case of Ranganayakamma and another vs K.S.Prakash and others), the Honourable Supreme Court had occasion to examine a suit with facts similar to the present case. In that case, a family settlement was entered into and a consent decree was obtained. Subsequently, fraud and misrepresentation had been alleged. It was held a relief should have been included to set aside the evidence and there should be specific pleadings containing averments of fraud and misrepresentation. It was held that fraud must be pleaded and must be proved. In that case also, when a relinquishment deed was challenged, it was held that when consideration had been passed for the relinquishment deed, then, it amount to a transaction and then naturally that document has to be set aside. In the present case also, the first plaintiff was paid consideration and that it had been reflected in both Ex-B2 and Ex-B3. In Para 37 of the said judgment, it had been held as follows:
?37......It is a well-settled principle of law that a void document is not required to be avoided whereas a voidable document must be......?
74.It had been further stated in para 38 as follows:
?38.Section 16 of the Indian Contract Act provides that any transaction which is an outcome of any undue misrepresentation, coercion or fraud shall be voidable. If, however, a document is prima facie valid, a presumption arises in regard to its genuineness......?
75.In the said judgment, it was further held as follows:
?38.......Yet again in A.C. Ananthaswamy v. Boraiah [(2004) 8 SCC 588], this Court categorically laid down that in establishing alleged fraud, it must be proved that the representation made was false to the knowledge of the party making such representation or that the party could have no reasonable belief that it was true. Level of proof required in such a case was held to be extremely high.?
76.It was further held that the details of fraud and misrepresentation must given in the plaint. Order VI Rule 4 of CPC was also referred and it was held that the plaintiff was bound to give particulars in the hplaiant, where the suit relates to misrepresentation, fraud and breach of trust, etc. With respect to cancellation of decree, it was held that the period of limitation was under Article 53 of Limitation Act and 3 years had been set as the deadline for instituting the suit. In the present case, even if leverage is given to extend the period to 12 years under under Article 65 of the Limitation Act, the suit is still barred by limitation.
77.The ratio laid in the above judgment squarely applies to the facts of this case. I hold that the suit has to be dismissed and the point framed for determination is answered that the suit is speculative and has to be dismissed.
78.In the result,
1)A.S.(MD)No.280 of 2008 is allowed with costs
2)A.S.(MD)No.198 of 2009 is allowed with costs.
3)The judgment under appeals passed by the learned Additional District Judge (Fast Track Court No.I), Trichy in O.S.No.59 of 2004, dated 03.04.2008 is set aside and the suit in O.S.No.59 of 2004 is dismissed.
To
1.The Additional District & Sessions Court (Fast Track Court No.1), Trichy.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.