Madras High Court
Prakashchand vs M/S.Velmurugan Constructions By Its ... on 25 September, 2014
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATE OF RESERVATION: 25.09.2014
DATE OF PRONOUNCEMENT: 03.12.2014
CORAM:
THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN
CS.No.2052/1995
1.Prakashchand
2.M.Mahendrachand
3.Prema Naresh
4.Chandrakala
5.Suba Chordia
6.Manju Chordia
7.Narenderchand Plaintiffs
Vs
1.M/s.Velmurugan Constructions by its Partners
2.M.Balasubramaniam
3.B.Mythili
4.V.Ramesh
5.V.Muthulakshmi
6.K.M.Vijayalakshmi
7.B.Usha
8.B.Venkata Subramanian
9.B.Meena
10.B.Senthil Kumar Defendants
Prayer:- This Civil Suit is filed under Order IV Rule 1 of Original Side Rules and Order VII Rule 1 of CPC.
For Plaintiffs : Mr.V.Kuberan for M/s.Rank Associates
For Defendants : Mr.M.S.Krishnan, SC for
Mr./N.Anand Venkatesh-D1 to D5 & D7 to D10
JUDGEMENT
This suit has been filed to pass a judgement and decree:-
a. declaring the Plaintiffs' title to the suit property, b. directing the 1st Defendant and its partners, viz. the Defendants 2 to 5 to put the Plaintiffs in possession of the suit property b(i) directing the 1st Defendant and its partners viz. the Defendants 2 to 5 to, jointly and severally, pay to the Plaintiffs mesne profits at Rs.25,000/- per month or such other rate as this court may deem fit from the date of plaint to the date of delivery of possession of the suit property to the Plaintiffs.
b(ii) declaring that the decree obtained in OS.No.956 of 1998 on the file of the City Civil Court, Chennai by the 1st Defendant against the 6th Defendant is null and cannot affect the title of the Plaintiffs in respect of the suit property.
c. directing the Defendants to pay the costs of the suit.
2. The plaint averments are as follows:-
a. Each of the Plaintiffs has purchased 2/14th share of the suit property, by two registered sale deeds dated 31.10.1994, for a consideration of Rs.2,00,000/- each from the 6th Defendant represented by her Power of Attorney Agent Gouthamchand, appointed by her under a registered deed dated 6.10.1994. Under this deed, the Power of Attorney was specifically empowered to sell the suit property. The 6th Defendant had entered into an agreement of sale in respect of the suit property under a deed dated 24.07.1994 with the Plaintiffs. As the 6th Defendant could not personally execute the sale deed due to some inconveniences, she had appointed Gouthamchand as her Power of Attorney to execute the sale deed. Accordingly, he has executed the above said sale deed in favour of the Plaintiffs. The Plaintiffs' vendor, the 6th Defendant is the daughter of late one T.K.Jayalakshmi and her father Thanikachalam died on 3.6.1940 and her mother Thanigambal on 17.3.1958. Her two brothers died during the life time of her parents. Among her four sisters, two also died without marriage. The Plaintiffs' vendor's parents had no properties of their own. The vendor's mother was married to one Kannappa Mudaliar and he predeceased his mother Saravanan Ammal, who inherited his properties and she had executed a settlement deed in respect of them in favour of her daughter in law T.K.Jayalakshmi under a registered deed dated 25.2.1994. Among the other two sisters of T.K.Jayalakshmi, E.T.Padmavathi Ammal, out of her own earning and savings, purchased some properties in her name. The other sister E.T.Chockammal got the suit item allotted in her name under hire purchase system with M/s.Raja Annamalaipuram Housing Society. She had nominated her sister Padmavathi in respect of the suit property as a person to get it after her death. She died later. Padmavathi came into possession of the suit property and continued to pay the instalments. On 12.7.1972, she died intestate without marriage. The Plaintiffs' vendor's mother T.K.Jayalakshmi, as the only heir of Padmavathi, continued to pay till the last instalment and got the suit item conveyed to her by the Society on 19.6.1975 duly registered on 20.6.1975. She had also purchased some properties in her own name with her earnings. In respect of these properties, the properties got from her mother in law and sister Padmavathi, T.K.Jayalakshmi had executed a registered Will in favour of the 6th Defendant bequeathing them all on 19.12.1981. She died on 10.10.1985 without revoking the said Will. On and from that date, the Will came into force and operative.
b. The Legatee under the Will executed by T.K.Jayalakshmi viz. the 6th Defendant got the Will probated in the High Court of Madras in OP.No.569/1991 after due publication of the claim made therein in Newspapers. Neither the Defendants nor anybody else entered appearance and raised any objection to the grant of probate in favour of the legatee. This court, thereafter, on 16.4.1993 has granted a Letter of Probate in favour of the Plaintiffs' Vendor. The Vendor of the Plaintiffs, having been in possession of the suit property and having derived a perfect title to it, has got the mutation changed in her name in the Government permanent Land Register. She had been paying the taxes also. After purchase of the suit property from her, the Plaintiffs have derived unimpeachable title to it and they had been in possession of the same. While so, the Defendants 1 to 5, exploiting the position of the mother of the 6th Defendant, as a woman appears to have created some document purporting to be a Power of Attorney and entered into a sale agreement with the father of the 2nd Defendant. It also transpires that the 2nd Defendant filed a suit in OS.No.3534/1995 in the City Civil Court, Chennai against D.Marimuthu Chettiar, father and the second Defendant obtained a decree collusively. No sale deed has been executed by the deceased T.K.Jayalakshmi either by herself or through any Power of Attorney agent. Even if there is any agreement, without conceding, the claim is barred by limitation and the title claimed is inchoate.
c. For making fraudulent, illegal gains, the 2nd Defendant had been giving trouble to the Plaintiffs in their enjoyment of the suit properties. Consequently, there had been reports to the Police. The Police, apprehending breach of peace, had to report to the Taluk Executive Magistrate and Tahsildar, Mylapore Triplicane Taluk, Madras. The Executive Magistrate, on that basis had initiated proceedings under Section 145 of Cr.PC against Gouthamchand and the 2nd Defendant arraying them as 'A' and 'B' parties respectively. The police, while making the report, had locked the premises in dispute and entrusted it with the custody of the Tahsildar. Gouthamchand, 'A' party therein is neither the owner of the suit property nor claimed any possession of the same with him. Acting as Power of Attorney agent of the original owner, who is the 6th Defendant, he made purchases for and on behalf of the Plaintiffs for their absolute enjoyment as legal owners thereof. While so, without making the Plaintiffs also as Parties in the 145 proceedings in B1/21061/95, the Executive Magistrate had proceeded erroneously with the enquiry and acted without jurisdiction, adjudicating upon the title also, as if he is a Civil Court. Several irrelevant matters without examining the Plaintiffs as parties interested in the suit property have been taken into account by the Executive Magistrate including the question of possession though he would observe in his final order that neither 'A' or 'B' Party was in possession of the property at the time the dispute started. Taking advantage of the illegal order, the 2nd Defendant herein has got the keys from the Tahsildar and trespassed into the suit property. The Defendants 1 to 5, by virtue of their illegal order, are making attempts to demolish the structures standing in the suit property for putting up pucca constructions and they are also making attempts to alienate the suit property to third parties in spite of true and valid ownership resting with the Plaintiffs. If such things are allowed to happen taking advantage of an illegal order, the Plaintiffs will be put to serious loss and hardship.
d. Since the Defendants 1 to 5 are powerful and influential people, with the support of rowdies and hooligans, they are making all hasty arrangements to demolish the buildings already existing in the suit property with the object of either raising pucca multi storeyed building or alienate to third parties for fabulous prices, causing loss and hardship to the Plaintiffs. So, it is just and necessary in the interest of justice, to restrain the Defendants 1 to 5 from demolishing the construction already in existence in the suit property and from alienating the suit property. To avoid any change in the existing condition of the suit property, either by way of demolishing or by reconstruction by the Defendants 1 to 5, it also becomes highly necessary to appoint an Advocate Commissioner to inspect the suit property and observe the physical features therein inclusive of the building in existence and make a report to this court.
e. The Defendants 1 to 5 are in unlawful possession of the suit property. They are bound to deliver vacant possession to the Plaintiffs. Taking into account the locality in which the property is situate, the extent and various facilities available in the area and the use to which the building is put to by the Defendants 1 to 5, the property will easily fetch a rental of Rs.25,000/- per month. The Defendants 1 to 5 are bound to pay mesne profits at Rs.25,000/- per month to the Plaintiffs from the date of the plaint upto date of delivery of possession. In such circumstances, this suit has been filed for the reliefs as stated above.
3. In the Written Statement filed by the Defendants 1 and 2 , it is averred as follows:-
a. There is no cause of action. The Plaintiffs have no locus standi to maintain the suit. They have no title to the suit property. The Plaintiffs' vendor has no right in the suit property and she had accepted that her mother T.K.Jayalakshmi Ammal is the absolute owner and on her own T.K.Jayalakshmi Ammal had released that right in favour of M/s.Velmurugan Constructions. The suit filed for possession is not maintainable, as the Plaintiffs have never been in possession of the suit property and the suit property belongs to the 1st Defendant, who alone has got title to the same and they are in possession over since 30.8.1983. The Plaintiffs are close family members with each other. The 3rd Plaintiff is none other than the wife of Advocate J.Naresh Kumar, who is the brother in law of M.Gowthamchand alleged power agent of Vijayalakshmi. He had drafted and signed the Power of Attorney given by the 6th Defendant in favour of Gowthamchand and drafted the alleged sale deeds in favour of the Plaintiffs. The execution of those documents are disputed by Vijayalakshmi. She had clearly stated that the documents were taken by Gowthamchand by playing fraud on her. This had been stated in the counter to the petition filed by the Defendants for revocation of the grant of probate.
b. The 6th Defendant has no title to the property and therefore, her power agent cannot claim a better right. The alleged power agent Gowthamchand, Nareshkumar, the Plaintiffs and others have colluded together and brought about documents purporting to be sale deeds in favour of the Plaintiffs in respect of the suit property. The Plaintiffs are fully aware that the 1st Defendant is the absolute owner of the suit property. The 2nd Defendant is the managing partner of the 1st Defendant Company. The suit has been filed with an intent to black mail the Defendants 1 to 5. The Plaintiffs are only strangers to the suit property. Even during the enquiry before the Police, it has been brought to light that the 6th Defendant is the family friend over three decades of sister of Gowthamchand and deceived Vijayalakshmi and has created documents as power in his own name and 14 sale deeds in the name of his family relatives to deceive these Defendants 1 to 5, knowing fully well that the suit property is the absolute property of the 1st Defendant from 30.8.83. The Plaintiffs had suppressed the material facts before this court and had manoeuvred to obtain an exparte order of injunction in respect of the suit property based on fabricated documents.
c. The suit property was purchased by T.K.Jayalakshmi after the demise of her unmarried sister Padmavathi. The suit property was allotted in favour of Chockammal a spinster in the hire purchase system by Raja Annamalaipuram Society and after her demise, as nominee, Padmavathi, who is also a spinster, got the property. After her demise on 12.7.1972, the 6th Defendant's mother T.K.Jayalakshmi as the only heir of Padmavathi after paying all the instalments got it conveyed to her on 19.6.76 by duly registered sale deed on 20.6.75 from the said Society. On 13.10.1977 T.K.Jayalakshmi has borrowed a sum of Rs.75,000/- from Meena Traders, wherein the 4th Defendant was a Proprietor, by depositing all original documents no.9250 registered in the office of the Sub Registrar, Mylapore and also have executed a general Power of Attorney and memorandum of deposit of title deeds with an undertaking that in case if she is unable to pay the money borrowed as short term loan for 6 months, the Company of the 4th Defendant can dispose off the property to realise the dues. After the borrowal, T.K.Jayalakshmi had gone to the Egmore Benefit Fund and has sent a letter to the 4th Defendant asking for inspection of original documents by a letter dated 30.11.1977. Thus, T.K.Jayalakshmi is well aware about the availability of original documents and the loan due to the 4th Defendant. Later, T.K.Jayalakshmi has reported that since the said Benefit Fund is not willing to grant long term loan for want of funds, she could not redeem the documents from the 4th Defendant. She has also paid interest payment for Rs.19500/- by cash and cheque. She could not repay the money and therefore, the said Meena Traders had executed an agreement of sale in favour of Marimuthu Chettiar, a partner of M/s.Velmurugan Constructions registered as document no.1985/83 dated 2.6.83 in the office of the Sub Registrar of Mylapore, Madras 600004.
d. Later on T.K.Jayalakshmi became the partner of the 1st Defendant on 8.6.83 and had, by way of share capital, contributed the suit property. She had retired on and from 30.8.83 she relinquished her right in the suit property in favour of M/s.Velmurugan Constructions by transferring the share capital. At the time of her retirement, one Krishnayya was a tenant and he has attorned the tenancy in favour of the 1st Defendant. The 4th Defendant is in possession of the original documents with charge over the same by himself and the bank. On 2.5.95 Gowthamchand has attempted to trespass into the suit property which was prevented by the Defendants. The Defendants made a complaint to the Police. The police, during the course of their investigation, appear to have seized the fraudulent documents and Vijayalakshmi stated that some third parties unknown to her has got the thumb impression of her mother while her mother was rushed to the Hospital for treatment when she was unconscious and created an instrument purporting to be Will in her favour with the intention of using it to deceive the creditors at later stage as T.K.Jayalakshmi was having lot of monetary problems during her sickness. When questioned the 6th Defendant has admitted that her mother is a English knowing lady and her thumb impression was taken when she was unconscious and bed ridden. She has also stated that as she happened to be the only daughter of the deceased T.K.Jayalakshmi there is no need for a Will. In the meanwhile the Inspector of Police came with Gowthamchand along with certain documents seized from his Office. Vijayalakshmi has stated that Gowtham Chand was aware of the sale in favour of the 1st Defendant and despite that she was called upon to execute the sale deed. She had stated that actually no consideration was paid towards the sale deed. The consideration shown in the sale deed does not belong to the schedule property. The alleged sale deed is a sham document. This Defendant states that Gowthamchand's sister Vijayalakshmi were school mates and both the family know each other for long time over decades. She has stated that Gowthamchand has induced her to sign some papers stating that they were required for getting approval from MMDA for some other property and she came to know of the fraud played by Gowthamchand only when the Defendants had lodged the complaint to the police. The fact that fraud had been played would be evident from the fact that the sale deed executed in favour of the Plaintiffs are in pieces and bits and though a palatial building is situated on the land, there is no whisper about it.
e. The sale deed was executed by a person who is hardly residing 40 kms away from the City. All these were done by Gowthamchand to play a fraud on her. The averments relating to settlement deed executed by the mother in law of T.K.Jayalakshmi dated 25.2.64 has nothing to do with the suit property. T.K.Jayalakshmi has no power of disposition in the suit property and the Will not confer any power of the legatee. Though an extensive building is situated in the suit property the same does not find a place in the form attached to the sale deed or in the schedule. The Plaintiffs are not bona fide purchasers for value as they could not have purchased a property without scrutinising the original documents or knowing about their whereabouts. There is also a sale agreement which had been registered in which it is specifically mentioned as to where exactly the original documents lie. The alleged sale deed is the created instrument to play fraud on the real owners, namely, the Defendants 1 to 5. Vijayalakshmi had affirmed the fact that Gowthamchand and his relatives had played fraud on her and got a sale deed. A bare perusal of the sale deed would indicate that the property is grossly undervalued and the description is wrong. She has affirmed the title of the Defendants 1 to 5 stating that she is going to delete the suit property from the probate already granted by filing inventory and she had already taken steps in OP.No.569/93. These Defendants after having gone through the counter has also withdrawn the impleading petition 828/95 filed in the above OP.No.569/93. T.K.Jayalakshmi relinquished the property by way of retirement deed in favour of the 1st Defendant Company. The probate court could not decide about the issue of title and could never go into question whether the testatrix had any title to the property or not. In the circumstances, the reliance placed on the probate proceedings is misconceived.
f. The 6th Defendant has got mutation changed in her name in the Government permanent land register on the basis of the legal heir certificate obtained by her from the Tahsildar, Tiruvallur. These Defendants have not effected mutation on the revenue records due to the multi various activities and pre occupation on which the Company was engaged. The 6th Defendant has also not paid the full fees to the revenue Department and the alleged Will has been made to be used as an instrument after a lapse of years from the death of T.K.Jayalakshmi at the instance of the Plaintiffs and their relative Gowthamchand to extract money from the bona fide owners. It is mischievous on the part of the Plaintiffs to bring wild allegation against this Defendant which is motivated out of their inability to succeed in their fraudulent act for grabbing the property. These Defendants filed the suit in OS.No.3534/95 and the civil court after satisfying had granted an order of injunction. The Plaintiffs got 145 proceedings initiated contrary to law by using influence over the police. They have initiated the proceedings on 5.6.95 subsequent to the injunction order of the civil court. After great legal battle these Defendants have got their possession confirmed by the Executive Magistrate. In such circumstances, the suit filed by the Plaintiffs is most illegal, untenable and not sustainable both in law and on facts and hence, the suit is liable to be dismissed in limine.
4. In the additional written statement filed by the 2nd Defendant, it is stated as follows:-
a. It is totally denied and false to state that the Plaintiffs had purchased the suit property by way of two sale deeds on 31.10.1994. The 6th Defendant had no right over the suit property and any agreement between the Plaintiffs and the 6th Defendant is fraudulent and had been entered into only in order to deprive the rights of these Defendants. The suit property originally belonged to T.K.Jayalakshmi, who borrowed a sum of Rs.75,000/- from Sri Meena Traders, represented by its Proprietor, V.Ramesh on 13.10.1977 by executing a pronote in favour of the said Company and depositing the original title deed pertaining to the property bearing land and building in Plot No.105, bearing Corporation Old No.36, New No.1, II Main Road, Raja Annamalaipuram, Madras-20 and thereby she has created an equitable mortgage of the said property in favour of the said Company. T.K.Jayalakshmi has also created an irrevocable Power of Attorney in favour of the said Company on 10.10.1977 which shall be operative on her legal heirs also in the event of her demise. The Power of Attorney holder V.Ramesh has acted on the power by redepositing the title deeds of the said property with the Syndicate Bank, Kodambakkam, Madras. As T.K.Jayalakshmi was not able to discharge the loan in spite of various notices, at her instance Sri Meena Traders entered into a registered agreement of sale dated 2.6.83 for the sale of the said property in favour of S.Marimuthu Chettiar for a consideration of Rs.1,30,000/-. Subsequently, at the instance of T.K.Jayalakshmi, she has entered into a partnership with the Defendant firm on 8.6.1983 by bringing in the said property as her share capital.
b. T.K.Jayalakshmi has retired from the partnership of the Defendant firm on 30.8.1983 by executing a retirement cum release deed dated 30.8.1983 leaving the said property in the hotchpot of the Defendant firm. She has also attorned the tenancy of the then tenant in the said property in favour of the Defendant firm. Thus, the Defendant firm has become the absolute owner of the said property and since that date viz. 30.8.83, the Defendant firm has been in absolute possession and enjoyment of the said property. Since the aforesaid T.K.Jayalakshmi has lost her any right in the property on 30.8.83, she could not have given away the same by way of a Will in favour of the 6th Defendant and any such transaction is totally null and void. The probate only service whether the testator had the power to write the Will and not confer any ownership over the property and hence, any reference to the probate is totally unnecessary and irrelevant. The 6th Defendant has specifically stated that it is the Defendants 1 and 2 who have the right over the property and that her mother did not have any right over the suit property. The 6th Defendant had also stated specifically to the facts.
c. The said Gowthamchand taking advantage of the confidence reposed in him, had fraudulently executed 14 sale deed without possession and without verifying the original documents of title and also without verifying the encumbrance certificate etc, touching the suit property and thereby knocked the suit property by indulging in manipulations. This would clearly show that the said Gowthamchand had already determined to defraud and deceive the Defendants and cause irreparable loss and injury and achieved his goal by executing sale deeds in favour of his close relatives using the alleged Power of Attorney issued in his favour by the 6th Defendant. The said sale deeds are not valid in the eye of law since they are brought into existence by playing fraud and to create cloud on the title to extract money from the Defendants. It is not these Defendants who have indulged in the exploitation of the poor women. On the contrary, it is the Plaintiffs, who in collusion with the said Gowthamchand played a fraud on the Defendants and deprive their rights over the suit property. The proceedings under Section 145 of Cr.PC had absolutely no relevance for the Civil Court and Section 146 proceedings on that have been initiated by the said Gowthamchand at the instance of the Plaintiffs and in collusion with the said Gowthamchand which also ended in an order against the Plaintiffs.
d. This Defendant denies that the Plaintiffs are entitled to the suit property. In fact, the Plaintiffs have played fraud upon the 6th Defendant and it appears that she had also taken steps to nullify the sale deeds executed in favour of the Plaintiffs by Gowthamchand as her Power of Attorney. The Defendants are the owners of the suit property since 30.8.83 even before the demise of the 6th Defendant. The Defendants are also in possession of the suit property since 30.8.83 and the Plaintiffs are not entitled to mesne profits @ Rs.25,000/- per month. The relief sought for in the amended plaint in paragraph 12(a) and 16(b)(i) cannot be granted and the Plaintiffs are not entitled for any relief at all on the basis of the averments made. In fact, the Plaintiffs are playing fraud even before this court which would be evident from the affidavit that had been sworn on 4.10.1996. The affidavit is sworn by Prakashchand and he had alleged that he has been in possession of the suit property pursuant to the sale deeds and possession has been taken by the Defendants from the Inspector of Police and therefore, he had sought for an amendment by adding paragraph 10(a) to the effect that the Defendants 2 to 5 should put the Plaintiffs in possession of the property through the Taluk Executive Magistrate and Tahsildar, Mylapore.
e. Once again steps had been taken by the said Gowthamchand before the Executive Magistrate and Tahsildar under Section 146 of Cr.PC to put him in possession of the property allegedly said to have been taken possession by the Defendants after initiation of Section 145 proceedings. The Executive Magistrate and the Tahsildar have called for all records maintained by the Inspector of Police along with the records in his office pertaining to the entire Section 145 of Cr.CPC proceedings and caused the same to be inspected by both A-party viz. Gowthamchand and B-party viz. this Defendant and their Advocates. The A-Party has conceded that there is nothing on record to the effect that the Inspector of Police or the Executive Magistrate has handed over possession to this Defendant. After elaborate enquiry, as stated above, the Taluk Executive Magistrate and Tahsildar, has passed an order holding that the possession of the suit property had not been taken from the Inspector of Police as alleged and had rejected the application of the Plaintiffs. The Plaintiffs, who have been attempting to grab the property, had not only got a fraudulent document from a person who is legally disentitled to convey the suit property, but also aggravated the fraud by describing in the sale deeds about the property as if there was inspection of superstructure in the property, while in fact, the Defendants had been in occupation of the buildings and doing business. In the sale deeds, the building on the property has been mentioned and then struck off to avoid inspection by the Engineer attached to the registration Department, since any such inspection will bring the fraud played by the Plaintiffs in collusion with the said Gowthamchand to light. The Form 1A has also been purposely omitted for this purpose. The present suit has been filed only to use it as a shield to avoid criminal Prosecution against Gowthamchand in Cr.No.601/95 dated 8.6.95. The Plaintiffs had further played fraud by initiating proceedings under Section 145 read with 146 of Cr.PC when the alleged document of sale does not even indicate that the Plaintiffs had purchased the superstructure on the property.
f. The schedule of property given is erroneous as the property is not a vacant land, but extensive superstructure had been put up on it and has been in existence for over 22 years and this fact has been deliberately suppressed in the alleged sale deeds as well as before this court. The Plaintiffs have come before this court with unclean hands and they are not entitled to any relief much less as prayed for.
5. The following issues were framed for determination:-
1.Whether the Will said to have been executed by the mother of the 6th Defendant is valid and binding on the parties?
2.Whether the Power of Attorney deed dated 6.10.1994 registered as Document No.836/94 is valid?
3.Whether the decree passed in OS.No.956/1998 on the file of the City Civil Court, Chennai in favour of the 1st Defendant and against the 6th Defendant is a nullity and unenforceable?
4.Whether the Plaintiffs are entitled to get declaration of title and recovery of possession of the suit property as prayed for?
5.Whether the Plaintiffs are entitled to seek mesne profit at the rate of Rs.25,000/- per month till the date of delivery of vacant possession of the suit property?
6.To what other reliefs, the parties are entitled to?
6. On the side of the Plaintiffs, PW.1 and PW.2 were examined and Ex.P1 to Ex.P90 were marked. On the side of the Defendants, the DW.1 was examined and and Ex.D1 to D27 have been marked.
7. This court heard the learned counsel on either side and also perused materials on record.
8. Issue (1) and (3): -
T.K.Jayalakshmi was the original owner of the suit property. She expired on 10.10.1985 leaving behind her, her only daughter K.M.Vijayalakshmi, the 6th Defendant herein as the legal heir to succeed her. Ex.P3, legal heirship certificate evidences the same. T.K.Jayalakshmi had executed a Will dated 19.12.1981, bequeathing the suit property along with the other properties to her daughter (D6) . The said Will has been duly probated on 27.1.1993. Ex.P1 is the xerox copy of the order passed in OP.No.569/1991. Ex.P2 is the xerox copy of the letters of administration granted in OP.No.569/1991. Ex.P42 is the approval of the building plan dated 25.10.1984 in the name of the 6th Defendant on payment of licence fee of Rs.810/- under challan dated 24.10.1984. Mutation has been effected in the name of the 6th Defendant on 15.2.1991. The 6th Defendant had paid the Corporation tax as also payments to the Tamil Nadu Electricity Board, the urban land tax (ULT) and other payments in the name of her mother T.K.Jayalakshmi.
9. According to the Plaintiffs, they had purchased the suit property vide sale deeds dated 31.10.94 registered at the office of the Sub Registrar of Mylapore as Doc.Nos.2754 and 1144 to 1156 of 1994 marked as Ex.P6 to Ex.P11 and Ex.P34 to Ex.P41. The patta standing in the name of the 6th Defendant K.M.Vijayalakshmi was, then, transferred in the name of the purchasers/ Plaintiffs under Ex.P13.
10. During the life time of the original owner T.K.Jayalakshmi, she was receiving the rents from Blue Star Matriculation School and she also filed a petition for eviction against the said tenant, who was in the property since 1978. It is claimed that the Plaintiffs, after their purchase, vacated the tenant from the suit property by paying a sum of Rs.6,00,000/- towards displacement compensation. Ex.P12 evidences the same. Though the 6th Defendant did not file a written statement and contest the suit, however, she has admitted the above fact in Ex.D23.
11. According to the Plaintiffs, one M.Balasubramanian, the 2nd Defendant herein forcibly entered into the suit property, by chasing the watchman away and broke open the locks in the building. It is said that a police complaint was given by the Plaintiffs and the Tahsildar, Mylapore-Triplicane Taluk initiated proceedings under Section 145 of Cr.PC and ordered status quo.
12. In the meanwhile, the 2nd Defendant had filed a suit in OS.No.3534/1995 before the City Civil Court, Chennai against the 6th Defendant, by showing the 2nd Defendant's father Marimuthu Chettiar, as Power Agent and got a decree of injunction against the 6th Defendant on the basis of sale agreement or Power of Attorney said to have been executed by T.K.Jayalakshmi, the mother of the 6th Defendant. Admittedly, T.K.Jayalakshmi died even in the year 1985 and the power deed, if any, ends with the death of the mother. Admittedly, the purchasers, namely, the Plaintiffs were not impleaded in the suit. It is claimed by the Plaintiffs that the said suit is a collusive one.
13. It is claimed that the 2nd Defendant filed an application for revoking the probate, however not pursued further. On the other hand, he filed a suit in OS.No.956/1998 before the City Civil Court, Chennai, against the 6th Defendant and obtained an exparte decree, declaring that the probate is a nullity.
14. The case of the Defendants is that T.K.Jayalakshmi, the mother of the 6th Defendant, had borrowed a sum of Rs.75,000/- from one M/s.Meena Traders, owned by the 4th Defendant Ramesh, by depositing the title deeds of the suit property and also she executed a Power of Attorney. It is claimed by the Defendants that since the money was not repaid, the 4th Defendant entered into a sale agreement with one of the then partners of the 1st Defendant Firm, registered as document no.1985/1983. It is further claimed that the mother of the 6th Defendant became a partner of the 1st Defendant Firm on 8.6.1983 and had, by way of share capital, contributed the suit property to the Firm. It is claimed that she retired from the 1st Defendant Firm on 30.8.1983 in less than three months, after relinquishing her rights over the suit property. On the basis of the above claim that the owner of the property became a partner in the 1st Defendant firm and relinquished her share to the Firm on her retirement as partner, the said Firm, the 1st Defendant and its partners, namely, the Defendants 2 to 5 claimed right over the property.
15. It is stated in the written statement filed by the Defendants 1 and 2 that a suit in OS.No.3534/1995 had been filed against the 6th Defendant, by showing the 2nd Defendant's father Marimuthu Chettiar as the Power of Agent of the 6th Defendant, who has in no way related to the 6th Defendant. A degree of injunction is said to have been granted against the 6th Defendant. According to the Plaintiffs, it is a collusive suit. Admittedly, the power of atttorney said to have been executed by the 6th Defendant, appointing Marimuthu Chettiar as her Power Agent is not filed before the court. It is not known on what basis the said decree has been passed by the court in OS.No.3534/1995 and also the details of the decree is not before the court. The contention raised by the learned counsel for the Plaintiffs that it is a collusive suit cannot be brushed aside. The agreement of sale Ex.D14 is said to have been executed by T.K.Jayalakshmi in favour of Marimuthu Chettiar. The 4th Defendant Ramesh had signed in the said agreement of sale claiming to be the Power Agent of T.K.Jayalakshmi, without disclosing the details of power even. The power of attorney claimed to have executed by T.K.Jayalakshmi in favour of V.Ramesh is not filed before the court. Section 201 of the Contract Act postulates that the agency stands terminated by the death of the Principal. As T.K.Jayalakshmi died on 24.10.1984, the power, if any, given by her stand terminated on her death. The Power of Attorney is not entitled to enforce a contract entered into by him on behalf of his Principal. Accordingly, inasmuch as the Principal was dead, the agent was incapable of acting on her behalf since the agency stood terminated.
16. It is not disputed that the 6th Defendant K.M.Vijayalakshmi is the sole legal heir to the owner of the property, namely, T.K.Jayalakshmi. She had executed a Will dated 19.12.1981, bequeathing the suit property and other properties to her daughter, the 6th Defendant herein. The said Will has been probated on 27.1.1993. Ex.P2 is the letters of administration granted by this Court in OP.NO.569/1991. Though the 2nd Defendant claimed to have filed an application to revoke the letters of administration, but he has not pursued it. On the other hand, he had filed a suit in OS.No.956/1998 in the City Civil Court, Chennai, against the 6th Defendant for declaration that the order of the High Court, granting letters of administration to the 6th Defendant is null and void. As the 6th Defendant remained absent, an exparte decree had come to have been passed on 17.6.1999. On a perusal of Ex.D27 the judgement in OS.NO.956/1998, it appears that the learned Judge had merely stated as below, The Plaintiff was examined as PW.1 and Exs.A1 to A22 marked. Claim proved and hence, the suit is decreed as prayed for.
The plaint in OS.No.956/1998 has been filed as Ex.D26. It is averred in paragraph 21 of the said plaint that the 6th Defendant has committed a fraud by probating the alleged Will dated 19.12.1991, by suppressing the facts, with full knowledge that the title over the suit property had passed on to the Defendants 1 to 5 herein, even during the life time of the 6th Defendant 's mother T.K.Jayalakshmi.
17. It is well settled that once the execution of a Will is proved, the burden to prove that it was fabricated or manufactured or was obtained by committing fraud is upon the shoulder of the objector to prove it in the court. Ex.D27 does not indicate that the circumstances referred to in the plaint had been analysed by the learned Judge before decreeing the suit, declaring the letters of administration validly granted by the High court as null and void. The allegations of fraud committed by the 6th Defendant in obtaining letters of administration have not been substantiated. It is settled law that whenever a party put forth a plea of fraud, specific pleadings as to fraud is required to be made and proved. This has to be decided by considering the evidence and the documents placed on record and it cannot be inferred merely from the averments made in the plaint. The court which passed the decree has not adverted to the evidence regarding the plea of fraud and finding is based not on proper application of law and the evidence available in the said case.
18. It is significant to point out here that the above said suit had been filed by the Defendants 1 to 5 only against the 6th Defendant after receiving summons in this suit. In fact, only after filing written statement in the present suit, the suit in OS.No.956/1998 has been filed. Even though the 2nd Defendant claims to have filed a petition to revoke the letters of administration granted by the High Court, but he is silent as to the outcome of the said petition and why he chose to file a suit instead. Under these circumstances, the decree passed in OS.No.956/1998 is a nullity and is unforceable. The will executed by the mother of the 6th Defendant is valid and binding on the parties. Accordingly, the issues 1 and 3 are answered.
19. Issues (2) , (4), (5) & (6):-
The case of the Defendants 1 to 5 is that the mother of the 6th Defendant had borrowed a sum of Rs.75,000/- from one M/s.Meena Traders, owned by the 4th Defendant, by depositing the title deeds and also she executed a Power of Attorney. Since the borrowed money was not repaid, the 4th Defendant entered into a registered sale agreement Ex.D14 with one of the then partners of the 1st Defendant Firm. It is the further case of the Defendants 1 to 5 that the mother of the 6th Defendant became a partner of the 1st Defendant Partnership Firm on 8.6.1983 and had by way of share capital contributed the suit property to the firm. It is claimed that she retired from the 1st Defendant partnership firm on 30.8.1983, after relinquishing her rights over the suit property. On the basis of the above claim, the Defendants 2 to 5 claim right over the property.
20. Admittedly, there is no registered document filed before the Court to prove the existence of partnership Firm and its partners. Section 14 of the Partnership Act, 1932, (herein after referred to as the Act) describes what can be the property of a partnership firm. The property and rights and interests in property originally brought into the stock of the firm, or acquired, by purchase otherwise, by or for the firm or for the purposes and in the course of the business of the firm, constitute the property of the partnership firm. The property belonging to a person in the absence of an agreement to the contrary does not become a property of the partnership, merely because it was used for the business of the partnership. It would become a property of the partnership, only if there was an agreement, express or implied, that the property under the agreement of partnership to be treated as the property of the partnership.
21. In the instant case, the only document placed on record is Ex.D15 deed of reconstitution of partnership dated 8.6.83, by which the 6th Defendant 's mother T.K.Jayalakshmi is inducted into the partnership. It is stated that she agreed to bring in as her share capital Rs.1,30,000/- by way of immovable property ( suit property) with the existing encumbrance in favour of other partners,namely, Marimuthu Chettiar and V.Ramesh, 4th Defendant. Within a period of less than three months, that is, on 30.8.83, she is said to have retired from the partnership, after relinquishing her rights over the suit property. Ex.D16 is the deed of retirement cum release. Before dealing with the said aspect, the other factors need be gone into.
22. Ex.D7 is alleged to be a Memorandum of Understanding dated 1.4.1976, under which the mother of the 6th Defendant is said to have borrowed money. At the outset, it is not stamped and cannot be relied upon. Ex.D7 is claimed to be a continuation of the earlier unstamped Memorandum of Understanding. The stamp paper is in the name of the Shree Usha Finance Corporation. The said finance Corporation is not a party to the transaction. There is no explanation as to how and why the stamp paper is purchased in the name of Sree Usha Finance Corporation who is in no way connected to the transaction allegedly entered into between the 6th Defendant's mother T.K.Jayalakshmi and Ramesh. The said Memorandum of Understanding shows that Ramesh, the 4th Defendant was a minor at the time of entering into the transaction and represented by his natural guardian V.V.S.Manian. But, the minor himself had signed the Memorandum of Understanding. Ex.D7 recites that the 6th Defendant 's mother T.K.Jayalakshmi borrowed a sum of Rs.5000/- on 1.6.75 from M/s.Meena Traders, wherein Ramesh (minor) was a proprietor to pay all the remaining dues to the Raja Annamalaipuram Cooperative Society from whom T.K.Jayalakshmi intended to purchase the suit property. As per the said document, funds had been provided by V.Ramesh, Proprietor of Meena traders and T.K.Jayalakshmi deposited all the original title deeds to V.Ramesh, the 4th Defendant herein and he continued to be in possession. Further, Continuation of the Memorandum of Understanding dated 10.10.1977 appoints Ramesh, as the Power of Attorney of T.K.Jayalakshmi, giving power to sell the property mentioned therein. The said Power of Attorney deed is not filed before the court. A Power of Attorney has to be strictly construed. In order to agree to sell or effect a sale by a Power of Attorney, the power should also expressly authorise the power agent to execute the sale agreement/sale deed. Only from the terms of the power executed, one can infer as to the rights given to the agent to do all acts or acts specified therein and whether it is revocable or irrevocable. In this case, as the Power of Attorney deed is not filed, the case of the Defendants that power was given to Ramesh the 4th Defendant herein stands not proved.
23. A letter dated 14.10.1977 by T.K.Jayalakshmi in favour of Meena Traders, by which original title deeds are deposited, thereby creating equitable mortgage, has been filed as Ex.D10. It refers to the borrowal made by T.K.Jayalakshmi on various stages, which is a part of Memorandum of Understanding that is written in the stamp paper in the name of M/s.Usha Finance Corporation who is neither a party to the suit nor related to the transaction between T.K.Jayalakshmi and M/s.Meena Traders. Ex.D11 notice demanding payment of arrears of interest on the principal sum is sent to T.K.Jayalakshmi by M/s.Meena Traders, C/o.Usha Finance Corporation. The Memorandum of Understanding mentions various transactions on different dates titled as Continuing Memorandum of Understanding by endorsement. Though in the endorsement dated 1.4.1976, Ramesh is shown as Minor, but in other continuing endorsements made from 10.10.1977 onwards, he had signed without being shown as minor represented by guardian. It is not known as to whether he was a minor on those dates. There is no evidence as to when he attained majority. Absolutely there is lack of evidence in this regard. There is no explanation on the Defendant's side as to how he entered into these transactions as a minor.
24. By virtue of Ex.D10 letter, the title deeds of the suit property are said to have been deposited with M/s.Meena Traders. It is settled law that when a debtor deposits with the creditor the title deeds of his property with an intention to create a security, the law implies a contract between the parties to create a mortgage and it is no doubt that no registered instrument is required as in other classes of mortgage. These documents would constitute a security, which will enable the creditor ultimately to recover the money which he has lent. But, if the parties choose to reduce the contract to writing, this implication of law is excluded by their express bargain and the document will be the sole evidence of its terms. In such a case, the deposit and the documents, both form integral parts of the transaction, are essential ingredients in the creation of the mortgage. Accordingly, such a document requires registration under Section 17 of the Registration Act, 1908, as a non testamentary instrument creating an interest in immovable property, where the value of such property is one hundred and upwards. In my view, Ex.D10 is of such a character and when it is not registered, it cannot be used in the evidence and the transaction itself cannot be proved by oral evidence either. It is now clear that the twelve years' period in Article 62 of the Limitation Act will apply to a suit by an equitable mortgage (eg. mortgage by deposit of title deed) to enforce payment by sale of the property. Since the document Ex.D10 creating an equitable mortgage (by deposit of title deeds) is unregistered, no action under Section 69 of the Transfer of Property Act could be taken.
25. Now coming to Ex.D13, which is a document titled as Memorandum of Understanding entered into between T.K.Jayalakshmi and Marimuthu Chettiar dated 1.6.1983, it shows that Marimuthu Chettiar, a tenant had entered into an agreement of sale in respect of the suit property. Here again, it is written in five rupees stamp paper standing in the name of 'Usha Finance Corporation and not in the name of the parties to the Memorandum of Understanding. This Memorandum of Understanding also refers to an irrevocable General Power of Attorney in favour of M/s.Meena Traders, but not Ramesh as put forth by the Defendants. Ex.D14 is the registered agreement of sale executed by V.Ramesh, 4th Defendant who is the General Power of Attorney holder of T.K.Jayalakshmi Ammal to sell the suit property to Marimuthu Chettiar. The sale consideration is mentioned as Rs.1,30,000/-. It is stated that an advance of Rs.1000/- has been paid and the balance sale consideration of Rs.1,25,500/- is agreed to be paid to the Vendor T.K.Jayalakshmi, at the time of execution of the sale deed. Since the General Power of Attorney is not filed, it is not known as to whether it is revocable or irrevocable and whether it is for specified period and specified act.
26. This agreement of sale is dated 2.6.83. Within 6 days of the execution of agreement of sale, it is stated that T.K.Jayalakshmi became a partner of the 1st Defendant Firm (Velmurugan Constructions) on 8.6.1983 and had by way of share capital contributed the suit property to the Firm. It is claimed that she retired from the 1st Defendant Firm on 30.8.1983 (in less than three months) after relinquishing her rights over the property by Ex.D16 deed of retirement cum release. Marimuthu Chettiar, agreement holder of the suit property is one of the partners in the 1st Defendant firm. Though the amount borrowed by T.K.Jayalakshmi from the 4th Defendant is referred to, but the liability to Syndicate Bank is not mentioned. Now, on the basis of Ex.D16, the Defendants claim right over the suit property.
27. At the outset, there is no registered document to evidence the partnership. Ex.D16 deed of retirement cum release is typed on the stamp paper containing stamp vendor's seal referring to the place as Chennai. It is contended by the learned counsel for the Plaintiffs that Madras was called as Chennaionly from the year 1996 and the document allegedly executed on 30.8.1983, contains the stamp vendors' seal as Chennai, which clearly showed that it is a fabricated document. To counter the said argument, the learned senior counsel for the Defendants filed three additional documents in the course of arguments, Ex.28 and Ex.D29, which are the documents of the year 1983 and Ex.D30 is of the year 1984 containing the stamp vendor's seal as Chennaiinstead of Madras. We need not delve upon this issue as to whether Ex.D16 is fabricated document or not.
28. Ex.D15 is a document showing reconstitution of partnership in M/s.Velmurugan between the then existing partners, namely, (1) Marimuthu Chettiar, (2) Mythili, (3) M.Balasubramanian (D2), Ramesh (D4), (5) V.V.S.Manian (father of V.Ramesh), (6) V.Muthulakshmi (D5) and incoming partners T.K.Jayalakshmi (mother of 6th Defendant K.M.Jayalakshmi). The stamp paper stands in the name of Bhagawanjee Pukkary. By this document, it is claimed that the mother of the 6th Defendant is brought into partnership firm with the existing encumbrance. Even when she was brought into the partnership, a specific clause is incorporated that the retiring partner shall not be entitled to claim a share in the immovable assets of the firm, thereby meaning that the said partner will relinquish her share in the properties. Then, within a period of nearly three months, she relinquishes and leaves the property. It is not known as to why she was brought into partnership and why she retired from the partnership within a few months.
29. Ex.D5 is the extract from Register of 1st Defendant Firm. The date of registration is noted as 25.7.1972 and the duration of firm as 3 years. All the entries are entered into on one and the same date in the year 1999, i.e. after filing of the present suit. Under Section 14 of the Partnership Act ( herein after referred to as the Act), it is always possible for a partner to bring into the partnership property belonging to him/her by the evidence of her intention to make it part of the assets of the partnership. By virtue of Section 14 of the Act, the property of a partner could be thrown into the partnership stock without any formal document. Section 59 of the Act provides that the Registrar has to satisfy himself that the provisions of Section 58 have been complied with, record an entry of the statement in a register called the Register of Firms and file the statement. Section 63 of the Act deals with recording of changes in the constitution of Firm and recording of changes pursuant to the dissolution of the Firm. Section 63 provides that any incoming, continuing or outgoing partner may give notice of change to the Registrar of Firms. Similarly, in case of dissolution of firm, any person, who was a partner immediately before the dissolution of the firm, may give notice to the Registrar of firms in respect of such dissolution. Section 63(2) of the Act provides for recording of changes on account of minor attaining majority and electing to become a partner of the firm Section 69 of the Act provides for consequences of non registration of firm. Provisions of Section 69 of the Act is mandatory in character. Therefore, this section puts a firm and also also its partners under certain disabilities if the firm is not registered. Moreover, the registration of a Firm takes effect from the date when necessary entry was made in the register of firm by the Registrar of Firms.
30. In the case of Commissioner of Income Tax, A.P. Hyderabad Vs. M/s.Jayalakshmi Rice and Oil Mills Contractor Company (AIR-1971-SC-1015), it was held that the registration of a Firm is effected, only when the entry of the statement is recorded in the register of firms and the statement is filed by the Registrar of Firms as provided in Section 59 of the Act. In view of the aforesaid legal position, if a firm or its partners do not choose to get the firm registered or do not choose to get the changes in the constitution of the firm recorded in the register of firm, they stand to suffer. Since there is no question of giving retrospective effect to the registration or to the recording of the changes in the constitution of the firm, the circumstance as to when the application is made pales into insignificance. Till the registration is not effected or until the changes in the constitution of the firm is not recorded, the consequences are to be suffered by the firm and its partners and not by others. Even though the Defendants have claimed that the late mother of the 6th Defendant joined the 1st Defendant firm as early as in 1983 and brought in the suit property as her capital contribution and retired from the firm within three months, there is no proof to show that such reconstitution of firm on several occasions was brought to the knowledge of the Registrar of Firms in terms of the partnership Act, during the life time of the mother of the 6th Defendant. Such registration of the alleged changes have been done only in the year 1999 after the life time of the said deceased person and much later to the filing of the present suit. Therefore, the entire claim relating to reconstitution of the 1st Defendant Firm is without any material proof. Further, no proof either in the form of an intimation to the Banker or to any other authority or their acknowledgement recognising the change in the constitution has been produced. Therefore, Ex.D5 cannot be a true and valid document to prove the claim of the Defendants.
31. The Plaintiffs had purchased the suit property through registered sale deeds dated 3.10.1994 and they are Ex.P6 to Ex.P11 and Ex.P34 to Ex.P41. Pursuant to the purchase, patta has been transferred in the names of the Plaintiffs in Ex.P13. The original owner of the property T.K.Jayalakshmi was receiving rents from Blue Star Matriculation School and also filed a suit in the City Civil Court at Chennai to evict the tenant. It is said that the said tenant was occupying the suit property since 1978. According to the Plaintiffs, they vacated the said tenant by paying a sum of Rs.6,00,000/- towards displacement compensation and took possession on 30.4.1995. Ex.P12 is the letter from the Correspondent of the said school acknowledging the payment of a sum of Rs.6 lakhs as displacement compensation from the Plaintiffs by way of cheque bearing no.784478 dated 30.4.1995 drawn on City Union Bank Limited, Mandaveli. This fact is admitted by the 6th Defendant in Ex.D23.
32. It is the case of the Plaintiffs that the 2nd Defendant forcibly entered into the suit property by chasing the watchman away by breaking open the locks in the building. At the instance of the Plaintiffs, criminal proceedings were initiated before the Executive Magistrate under Section 145 of Cr.PC and in the said proceedings, the Defendants 1 to 5 were held to be in possession. As against the said order, criminal revision in Cr.RC.No.914/1995 was preferred by the Plaintiffs before this Court. This court set aside the order passed by the Executive Magistrate, Mylapore-Triplicane Taluk and directed the parties to seek their reliefs before the civil forum. Now, at this stage, we are not concerned about the proceedings initiated under Section 146 of Cr.PC at the instance of Gouthamchand and the contempt proceedings faced by him in respect of the suit property.
33. The contentions of the Defendants 1 to 5 are that the Plaintiffs are not the bona fide purchasers for value and that the sale deeds executed in favour of the Plaintiffs by Gouthamchand, who is a close relative of the Plaintiffs as Power of Attorney agent of the 6th Defendant, are sham and nominal. It is contended that no original title deeds were available, at the time when the sale took place. It is submitted by the Defendants that original title deeds are with them.
34. Mr.M.S.Krishnan, the learned senior counsel for the Defendants 1 to 5 attacked the sale in favour of the Plaintiffs on the ground that they are sham and nominal. The learned senior counsel submitted that the manner, in which those sale deeds executed, would show that no consideration had passed on to the 6th Defendant. He pointed out that the Plaintiffs 1, 2 and 7 are the brothers of Gouthamchand, the Plaintiffs 3 and 4 are his sisters and the 5th Plaintiff is his wife and 6th Plaintiff is his sister in law. The learned senior counsel also pointed out to certain discrepancies in the payment of sale consideration by way of cheque in each sale deed. The learned senior counsel also pointed out that there is no mention about the building in the sale deeds and it is mentioned as vacant site.
35. At the outset, the executant of the sale deed namely, the 6th Defendant K.M.Vijayalakshmi, remained exparte and did not contest the suit. The sale deeds have been executed by the power agent of the 6th Defendant K.M.Vijayalakshmi in favour of the Plaintiffs. The registered power deed is exhibited as Ex.P4. The said power is still in force and not cancelled by the Principal. It is needless to mention here that an attorney holder can execute a deed of conveyance in exercise of power granted under the Power of Attorney and convey title on behalf of the vendor. The 6th Defendant, who is the Principal, has not entered the witness box nor filed written statement to deny that she had not authorised Gouthamchand to act as her agent and negotiate sale in question. The registered Power of Attorney authorises the agent, namely, Gouthamchand to negotiate sale, receive sale consideration on her behalf and execute sale deeds and get the same registered before the registering Authority. The Power of Attorney has to be strictly construed. From the date the Power of Attorney is executed by the Principal in favour of the agent and by virtue of the terms, the agent drives a right to use his name and do all acts, deeds and things as specified in the power deed.
36. The question whether a sale is real or nominal or sham depends upon the intention of the parties. If the intention of the vendor is to confer title on the vendee, the transaction of sale is neither nominal nor sham. In the present case, there is no material to indicate that there was no intention on the part of the 6th Defendant to confer title on the Plaintiffs. In fact, prior to sale, agreement to sell had been executed by the 6th Defendant by herself in favour of the Plaintiffs which are marked as Ex.47 to Ex.60. Therefore, the transfer of sale would be binding not only on the principal 6th Defendant, but also against third parties. When a sale has been completed by execution and registration of conveyance, the mere ,non payment or deficiency in payment of the purchase money even if accepted does not prevent the passing of the title of the property sold. If the vendor is aggrieved, she has to file a separate suit for recovery of the purchase money, if there is any due regarding consideration. In the instant case, when the sale deeds were duly executed and registered and it was also not the plea of the vendor that the title to the property was not intended to pass to the vendee, the title would pass to the vendees, as there is a prima facie transfer of title to the vendees.
37. The right of possession over a property is a facet of title. The vendor, in terms of the stipulations made in the deed of sale, is bound to deliver possession of the property sold. Once the sale deeds are held to be genuine, the consideration as mentioned in the sale deeds will be deemed to have been passed. Instances are not lacking where the possession is not delivered at all, while executing the sale deed. Even in such cases, the courts have held that the title would pass on, despite the non delivery of possession. In Bishundeo Narain Rai Vs. Anmol Devi (AIR-1998-SC-3006), the Honourable Supreme Court held that the important ingredient for a valid sale is the registration of document by a person holding title. Indirectly, it suggests that delivery of possession is not sine qua non for transfer of title. The circumstance under which the original title deeds had come into possession of the 4th Defendant has already been discussed in the previous paragraphs and therefore, availability of title deeds with the Defendants is of no consequence.
38. For the reasons stated above, the Plaintiffs are entitled to get declaration of title and recovery of possession of the suit property as prayed for. In so far as the determination of mesne profits is concerned, it is relegated to separate proceedings. Accordingly, issues (2), (4), (5) and (6) are answered.
39. In the result, this civil suit is decreed, as prayed for. In so far as the determination of mesne profits is concerned, it is relegated to separate proceedings. However, in the circumstances of the case, there will be no order as to costs.
03.12.2014 Index:Yes/No Web:Yes/No Srcm ARUNA JAGADEESAN, J.
Srcm Pre-Delivery Judgement in CS.No.2052/1995 03.12.2014