Madras High Court
P.Stanley Buck vs Dr.E.Krishnan on 27 January, 2012
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 27.01.2012
CORAM:
THE HONOURABLE MR. JUSTICE G.RAJASURIA
A.S.No.570 of 2006 and
M.P.No.1 of 2012
1. P.Stanley Buck
2. P.Sethuammal
3. M/s Stanforse agvet farm
Rep. by its partner Mr.P.Stanley Buck
D.No.1611, Siruvani Road
Sadivayal, Coimbatore 101. .. Appellants
Vs.
1. Dr.E.Krishnan
2. K.S.Geetha ... Respondents
(R2 set ex parte in the suit)
This appeal is focussed as against the judgment and decree dated 11.09.2003 made in O.S.No.170 of 2001 on the file of the Additional District and Sessions Judge (Fast Track Court No.III) Coimbatore.
For appellants : Mr.V.Raghavachari
for M/s Sarvabhauman Associates
For Respondents : Mr.S.V.Jayaraman, Sr.Counsel
for Mr.A.M.Packianathan for R1
JUDGMENT
This appeal is focussed by D1, D2 and D4 as against the judgment and decree dated 11.09.2003 made in O.S.No.170 of 2001 on the file of the Additional District and Sessions Judge (Fast Track Court No.III) Coimbatore. The parties are referred to hereunder according to their litigative status and ranking before the trial Court.
2. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus:
The plaintiff filed the suit with the following prayer:
"(a) For a declaration that the plaintiff is the absolute owner of the suit properties as the sale deed dated 20.05.1994 is null and void and is not binding on the plaintiff. (Amended as per order in I.A.No.165/2002 dt. 29.11.2002)
(b) To direct the defendants 1 and 2 and the 4th defendant partnership firm and its parties, namely the defendants 1 and 2 to deliver vacant possession of the suit properties; and
(c) for costs." (extracted as such)
3. D1, D2 and D4 filed the common written statement resisting the suit and D3 remained exparte; whereupon issues were framed.
4. During trial, the plaintiff-Krishnan examined himself as P.W.1 and Exs.A1 to A18 were marked. On the side of the defendants, the first defendant-Stanley Buck examined himself as D.W.1 along with D.W.2.Satya Sai Balan and Exs.B1 to B13 were marked. Ex.X1 was marked as Court document.
5. Ultimately, the trial Court decreed the suit. Being aggrieved by and dissatisfied with the said judgment and decree of the trial Court, the appellants/defendants preferred this appeal on various grounds.
6. Mr.V.Raghavachari, the learned counsel for the appellants/defendants reiterating the grounds of appeal would put forth his arguments, which could pithily and precisely be set out thus:
(a) The impugned sale deed dated 20.05.1994 was declared as null and void by the trial Court, ignoring and throwing to winds the principle as found embodied in Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, which is ex facie and prima facie, pellucidly and palpably clear to the effect that if the power of attorney of an individual signs the sale deed as an executant, necessarily the Principal should ask for cancellation or setting aside the sale deed, for which ad valorem Court fee should be paid. But in this case, the plaintiff illegally did choose to assume and presume as though the act of the power of attorney would not bind the Principal and accordingly, prayed for declaring the said sale deed executed by the power of attorney of the plaintiff as null and void.
(b) Ex.A5 the lease deed dated 07.04.1984 executed between the plaintiff and the fourth defendant would demonstrate and display that a lease deed emerged between them for 49 years in respect of the suit property and in such a case, before the expiry of the lease period, there is no question of seeking for delivery of possession by the plaintiff.
7. In a bid to shoot down and mince meat, torpedo and pulverise the arguments as put forth and set forth on the side of the appellants/defendants, the learned counsel for the contesting respondent/plaintiff would pilot his arguments, which could tersely and briefly be set out thus:
(a) The plaintiff established before the trial Court that the sale deed dated 20.05.1994 was fraught with falsity and it was nothing but an artifact of fraud at the instance of the power of attorney of the plaintiff and in such a case as per law, he was not enjoined to seek for cancellation or for setting aside the said sale deed.
(b) Regarding the said lease is concerned, that would not have any bearing on the relief granted, because even symbolic delivery could be granted at the time of delivery and the appellants cannot try to make mountain out of a mole hill.
(c) However, by way of abundanti cautela, the contesting respondent/plaintiff has filed M.P.No.1 of 2012 by setting out the following prayer:
" In the prayer relief portion: Include 1(a) after 1:
"1(a) To set aside the sale deed dated 20.05.1994."
8. At this juncture, the learned counsel for the appellants/defendants would submit that the contesting respondent/plaintiff cannot try to convert the appellate court into a trial Court by getting the plaint amended and also driving the appellants/defendants to file the written statement etc. If at all this Court is of the opinion that the contesting respondent/plaintiff should be given opportunity to get the plaint amended, then the matter has to be remanded back to the trial Court with suitable directions.
9. The points for consideration are as to:
(1) Whether the suit was bad for want of a prayer for cancellation or setting aside the sale deed Ex.A9 dated 20.05.1994?
(2) Whether the prayer for recovery of possession was hit by the lease which emanated at the instance of the plaintiff in favour of D4, for 49 years and would it be an embargo for ordering recovery of possession in favour of the plaintiff?
3. Whether there is any perversity or illegality in the judgment of the trial Court?
10. All these points are taken together for discussion as they are inter-linked and inter-woven with one another.
11. At this juncture, I am of the considered view that there is no point in deciding the entire appeal on merits, because pellucidly and palpably, apparently and obviously and that too axiomatically it is clear that there is a serious defect in the first prayer in the plaint itself. My mind is redolent and reminiscent of the following maxim:
Qui facit per alium facit per se- He who does through another does it himself. Indubitably and indisputably, Ex.A9-the sale deed was executed by the admitted power of attorney of the plaintiff and in such a case, the plaintiff having been in his very name, so to say eo nominee party as vendor, cannot wriggle himself out of his liability to seek for cancellation of Ex.A9 by contending that the power of attorney defrauded him. If at all the power of attorney of the plaintiff is proved to have committed any fraud, even then the plaintiff should pray for setting aside the said sale deed and he cannot simply pray for declaring the said sale deed as null and void. Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act is extracted hereunder for ready reference:
"40. Suits for cancellation of decrees, etc.-
(1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be -
if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;
if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.
(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree whichever is less."
12. At this juncture, the judgment of this Court reported in 1956 Madras 670 (S) AIR V 43 C 212 Dec [Sankaranarayana Pillai and another v. V.Kandasamia Pillai] could fruitfully be cited; certain excerpts from it would run thus:
"22. .............It seems to us that in the former case the minor is eo nomine a party to the transaction and he should seek to cancel the document in which case court-fee has to be paid under S.7(iv-A) of the Act. But where the minor was only a member of a joint family and the transaction is on behalf of the joint family, he could always ignore the transaction as not binding on the family and seek to recover possession.
Their Lordships of the Judicial Committee in 'Subramaniam v. Subbarao', 1948-2 Mad LJ 22: (AIR 1948 PC 95) (S), in considering the question regarding the applicability of S.53-A, Transfer of Property Act, took the view that the minor should be deemed to be a party to the transaction eo nomine. In interpreting the word "transferor' in S.53-a, Transfer of Property Act, the Judicial Committee held that where the mother and guardian of a minor enters into a contract of sale of immovable properties of the minor to discharge the father's debts and put the transferee in possession, the transferor in such a case, for the application of S.53-A, Transfer of Property Act, is the minor.
The principle deducible from this case is that where the transaction is with regard to the properties of the minor, it should be deemed as if he were eo nomine a party. At page 24 we find the following observation:
"Their Lordships think it is clear that the words 'the transferor' refer back to the person who contracts to transfer for consideration any immovable property by writing signed by him or on his behalf." "thus the act of the mother and guardian in entering into the contract of sale in the present case was an act done on behalf of the minor" and finally it was held that "the person who most aptly answers the description of "the transferor" in the sense in which these words are used in S.53-A, Transfer of Property Act" is the minor himself."
(23) If the matter is looked at in this way there is no difficulty in reconciling the various cases and we do not propose to analyse at length the large body of case law cited at the Bar. The distinction between a void and voidable transaction has been brought out in a number of cases and we need only refer to a few of them:- 'Sankaran Nair v. Gopala Menon', 30 Mad 18(T);-'Bijoy Gopal Mukerji v. Krishna Mahishi Debi', 34 Cal 329 (U); - 'Fakiappa Limmanna v. Lumanna Mahadu', 44 Bom 742: (AIR 1920 Bom 1) (FB) (V); - 'Balireddi v. Khatipulal Sab', 69 Mad LJ 458; (AIR 1935 Mad 863) (W); - 'Ankamma v. Kameswaramma', 70 Mad LJ 352: (AIR 1936 Mad 346) (X); - 'Ramaswami v. Govindammal', 56 Mad LJ 332: (AIR 1929 Mad 313), (Y), and 'Vallabhacharyulu v. Rangacharyulu', AIR 1937 Mad 449 (Z).
There is no doubt whatever that a transaction entered into by a guardian relating to the minor's properties is not void and if the minor does not sue to set it aside within three years of his attaining majority it becomes valid under Art.44, Limitation Act. In such a case the minor is deemed to be a party to the transaction. But where the document is executed by a manager of the family and it is not binding on the family, the minor or any other member can ignore the transaction and recover possession of the property. To such a case S.7(v), Court fees Act will apply.
We are here not concerned with decrees to which the minor is eo nomine a party. Our answer to the first question is that if the minor is eo nomine a party to a sale deed or other document of alienations, he must sue for the cancellation of the document under S.7(iv-A), Court-fees Act and it is not enough if he applies for possession under S.7(v) of the Act; and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manger of the joint family executes the deed. Even in that case also the document has to be set aside."
13. The learned counsel for the appellants/defendants would rely on the decision of this Court reported in 2002 (2) CTC 513 [V.R.Gopalakrishnan v. Andiammal]; an excerpt from it would run thus:
"15. The next question that arises for consideration is that when a decree is sought for, setting aside the sale, how the property has to be valued?; Is it the alleged sale consideration as could be found in the document relevant or the market value of the property on the date of the filing of the suit? It is settled law that when a suit is filed under Sect ion 40 of the Court Fees Act with a prayer to set aside the conveyance viz., in this case-sale, the value of the property on the date of filing of the suit alone is relevant (vide Kutumba Sastri v. Sundaramma, AIR 1971 Mad.380; AIR 1939 Mad.462 and T.S.R.Ammal v. V.N.Swaminathan, AIR 1974 Mad.152."
14. The learned Senior Counsel for the contesting respondent/plaintiff in all fairness would point out that by way of abundant caution only the respondent/plaintiff filed the said miscellaneous petition before this Court. I am of the view that if the plaint is allowed to be amended at this stage, then that would prolong the appeal and that would amount to virtually converting this Court into a trial Court. The defendants also should have ample opportunity of defending their case. Over and above that, the contention as put forth by the learned Senior Counsel for the plaintiff that the prayer relating to recovery of possession would not be a defective one despite lease of 49 years in existence, in my opinion has to be considered by the trial Court. Accordingly, the aforesaid points are decided.
15. On balance, the judgment and decree of the trial Court is set aside and the matter is remanded back to the trial Court with the following direction:
The plaintiff is given liberty to file necessary application for getting the plaint amended and whereupon, after hearing both sides, it is for the trial Court to pass suitable orders. In the event of the plaint being amended and additional court fee collected , due opportunity should be given to the contesting defendants to file additional written statement; whereupon necessary additional issues should be framed and both sides should be given opportunity to adduce oral and documentary evidence. It is for the trial Court to decide the lis within a period of four months from the date of receipt of a copy of this order, untramelled and uninfluenced by any of the observations made by this Court in this appeal. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
G.RAJASURIA,J., gms
16. The parties shall appear before the trial Court on 27.02.2012.
27.01.2012 Index : Yes/No Internet: Yes/No To The Additional District and Sessions Judge (Fast Track Court No.III) Coimbatore.
A.S.No.570 of 2006