Madras High Court
Mary Jacob (Died) vs A.N.Valliammai on 28 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 28.09.2018 RESERVED ON : 10.09.2018 PRONOUNCED ON : 28.09.2018 CORAM THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN Second Appeal No.18 of 1995 and C.M.P.(MD)No.1950 of 2018 1.Mary Jacob (Died) 2.P.Prabakara Singh (Died) 3.Grace Vayolo Rosalin 4.Ramadas 5.Muthulakshmi (Died) 6.H.Ramathilagam 7.P.J.Francis 8.P.J.Therase 9.P.J.Elizabeth 10.P.J.Mathew 11.P.J.Philomena 12.P.J.Rose Mary 13.P.J.Joseph 14.P.J.Antony 15.Nancy Pridha 16.Manoj Singh 17.K.Pravinth 18.P.Elangovan 19.V.Rameshwari 20.S.Devaki 21.A.Dhanalakshmi 22.S.Vijayaraghavan 23.Rajamani 24.R.Selvi ...Appellants Vs 1.A.N.Valliammai 2.R.M.Annamalai 3.A.Valliammal 4.A.L.Nagalakshmi ...Respondents Prayer: The Second Appeal is filed under Section 100 of CPC, to set aside the judgment and decree dated 25.07.1994 and made in A.S.No.28 of 1993 on the file of the Principal District Court, Madurai reversing the judgment and decree dated 24.04.1992 made in O.S.No.364 of 1983 on the file of the Additional District Munsif Court, Madurai. !A1, A2 and A5 :Died A4 and A6 :Dismissed For A3, A15, A16 and A24 :Mrs.Chitra Sampath Senior Counsel for Mr.V.Balaji For A7 to A10 and A12 to 14 :Mr.S.Sethuraman For A11 :Mr.Vijaya Sathrapathy For A17 to A22 :Mr.Niranjan S.Kumar For A23 :Mr.M.Sakthi Kumar ^For R1 and R2 :Mr.T.V.Ramanujam Senior Counsel for Mr.M.Rajaraman For R3 and R4 :Mr.S.Madhavan :JUDGMENT
The defendants / legal heirs of the defendants in O.S.No.364 of 1983, on the file of the Additional District Munsif Court, Madurai, along with the subsequent purchasers, are the appellants.
2.O.S.No.364 of 1983 had been filed by the respondents for a judgment and decree declaring that they are entitled to the suit properties absolutely and for a consequential injunction restraining the defendants from interfering with their peaceful possession and enjoyment and for a declaration that four sale deeds, all dated 03.02.1983 in favour of the 2-5 defendants respectively, in relation to the suit properties are not binding on them and for a direction against the defendants to pay the costs of the suit.
3.The suit and in fact the entire litigations have been meandering in circles without going nowhere for the past more than three decades. Originally, a judgment was delivered in O.S.No.364 of 1983 on 16.04.1991. That judgment was passed, since the plaintiffs did not come forward to cross examine the witnesses on the side of the defendants. The learned Additional District Munsif, exercised his right to deliver judgment in such circumstances. That judgment was subsequently set aside and the matter was again remitted back to the learned Additional District Munsif. After further hearing, a judgment was passed on 24.04.1992. The suit was dismissed. Thereafter, the plaintiffs filed A.S.No.28 of 1993, before the District Court, Madurai. By judgment and decree dated 25.07.1994, the appeal was allowed and the judgment and decree of the trial Court was set aside and the suit was decreed. As against that judgment, the defendants / legal heirs of the defendants filed the second appeal in S.A.No.18 of 1995.
4.The second appeal was transferred to the Madurai Bench. Arguments were heard and judgment was delivered on 18.09.2007, dismissing the second appeal and confirming the the judgment and decree of the first appellate Court. However, an application in M.P.(MD)No.1 of 2014 was filed seeking permission to re-hear the appeal. It was contended that the names of counsels for 2-3 appellants were not printed in the cause list. That application was allowed by order dated 13.11.2016. That order was challenged in S.L.P.No.9962 of 2017 by the present respondents, who were the plaintiffs in the suit. The Honourable Supreme Court, by order dated 10.04.2017, remitted the matter back to the High Court to dispose of the second appeal within a period of six months from date of the order, namely, 10.04.2017. In the meanwhile, the first, second and fifth appellants unfortunately died. The legal heirs of deceased first appellant were brought on record as appellants 7-14. The legal heirs of the deceased second appellant were brought on record as appellants 15 and 16. One of the legal heirs was already on record as 13th appellant. The legal heirs of the deceased fifth appellant was brought on record as 6th appellant.
5.On 10.08.2018, the 4th and 6th appellants filed separate memos, stating that they have come to understand that they have no legal right or claim over the suit property and consequently, they have decided not to continue to prosecute the second appeal. These memos were recorded and the appeal also dismissed insofar as the 4th and 6th appellants were concerned, by order dated 11.08.2017.
6.The second appeal had been admitted on the following substantial questions of law:
?Whether the judgment of the lower appellate Court reversing the judgment of the trial Court is vitiated by its failure to consider the entire evidence on record and apply the correct principles of law??
7.Thereafter, on 11.04.2007, during hearing of the arguments, it was felt necessary to formulate an additional substantial question of law, which is as follows:
?Whether the learned District Judge was right in holding Ex-A3 as sham and nominal when no circumstance had been established for the purpose of such transaction especially in favour of a total stranger unrelated to the vendor??
8.In the judgment of this Court, dated 18.09.2007, the following substantial questions of law were noted for consideration:
?a)Whether the learned District Judge was right in holding Ex-A3 as sham and nominal when no circumstance had been established for the purpose of such transaction especially in favour of a total stranger unrelated to the vendor?
b)Whether the learned District Judge was right in placing reliance upon Ex-A6 to Ex-A15, Ex-A18, Ex-A19, Ex-A31, Ex-A39, Ex-A40, Ex-A54 to Ex-56, when the trial Court had categorically found that they do not bear the seal and signature of the concerned department and appropriate authority, to prove the plaintiffs and their predecessors-in-interest possession of the suit property?
c)In the absence of any document to prove possession of the suit property with the vendor, Valliammal Achi, from the date of Ex-A3, is the learned District Judge right in placing reliance on documents long after the sale to hold the document sham and nominal?
d)Is the learned District Judge right in upholding the validity of Ex-
A16, the cancellation deed based on Ex-A4, when it did not contain the signature of the first defendant?
9.The matter was argued before this Court on 29.08.2018 and 03.09.2018. Since, when the matter was argued on an earlier occasion of hearing, there was a complaint by some Counsel for the appellants that they were not heard, the matter was listed again on 10.09.2018 and then, was reserved for judgment.
10.C.M.P.(MD)No.1950 of 2018 had been filed by the 23th appellant under Order 41 Rule 27 CPC to receive 6 certified copies of 'Adangal' and 636 pages of information furnished by the Tahsildar in Ref.No.Mu.M.No.15190/2017/B3, dated 02.12.2017 as additional evidence.
O.S.No.634 of 1983:-
11.This suit had been filed by four plaintiffs, A.N.Valliammai, R.N.Annamalai, A.L.Valliammal and A.L.Nagalakshmi against five defendants, P.Mary Jacob, B.Prabakara Singh, Grace Vilo Rosaline, H.Ramadoss and H.Muthulakshmi. The first plaintiff was the wife of R.M.H.Annamalai Chettiar. The second plaintiff was the son of R.M.H.Ramanathan Chettiar and the third and fourth plaintiffs were the daugthers of R.M.Agalappan Chettiar. R.M.H.Annamalai Chettiar, R.M.H.Ramanathan Chettiar and R.M.H.Alagappan Chettiar were brothers. The second defendant was the wife of first defendant. The fourth defendant was the son of the fifth defendant. The first defendant is a stranger to the family of the plaintiff and defendants.
12.The suit property is nanja land in Vilangudi Village, Madurai in R.S.No.123/3, measuring 1 acre 75 cents. It was originally purchased by Janaki Ammal from one Venkatasamy Naidu under a registered sale deed dated 15.06.1923. Janaki Ammal sold it to PL.RM.Valliammai Achi, w/o. PL.RM.Ramanathan Chiettiar (not the Ramanatha Chettiar shown as father of the 2nd plaintiff) under a registered document No.1919/63, dated 28.03.1962. Patta was also transferred in her name. PL.RM.Ramanathan Chettiar and PL.RM.Valliammai Achi had no issues. It was averred in the plaint that he was a spendthrift and a man of expensive habits. They had taken on adoption R.M.M.Alagappan in the year 1959. He was the father of the 3rd and 4th plaintiffs.
13.It had been further stated that PL.RM.Valliammai Achi wanted to safeguard the property for the benefit of her adopted son. She came into contact with the first defendant P.Mary Jacob, with whom she earlier had several monetary transactions. PL.RM.Valliammai Achi, with intention to protect the suit property, executed a benami sale with respect to the suit property in favour of the first defendant for a consideration of Rs.10,000/- on 06.06.1966. It was claimed in the plaint that there was no intention to transfer her rights or interests. Consideration was not paid by the first defendant. The consideration was the same consideration mentioned in the sale deed, under which PL.RM.Valliammai Achi had purchased the property. The original sale deed and the earlier title documents were not handed over to the first defendant. The possession and enjoyment continued with PL.RM.Valliammai Achi. She continued to pay the kists and cultivated the land and enjoyed the income from the land and coconut trees.
14.It was further averred that the first defendant, P.Mary Jacob and her husband were aware about the details and circumstances compelling to execution of the benami sale. The first defendant executed a consent document on 08.06.1966 in stamped papers confirming these aspects. In the meanwhile, from the year 1967, the first defendant went to Bangalore with her family. PL.RM.Valliammai Achi's husband died in the year 1975. In 1976, she was not well. She could not get a release deed from the first defendant. She, consequently, executed a cancellation deed dated 27.12.1976 of the sale deed executed by her in favour of the first defendant. This was registered as document No.1468/1976. She then executed a registered Will dated 16.07.1978 bequeathing the property to her adopted son PL.RM.Agalappan and other properties to her other relatives. She died in the year 1980. PL.RM.Alagappan, transferred the patta to his name. He enjoyed the property by cultivating and was paying kists for the land. He then executed four registered gift deeds on 08.01.1981 in favour of the 1st and 2nd plaintiffs and two other gift deeds, dated 20.08.1981 in favour of the 3rd and 4th plaintiffs. The patta was also transferred in the names of the four plaintiffs. They claimed that they are paying kists and are enjoying the properties. When the first defendant returned from Bangalore, it is stated in the plaint that she also executed a release deed, dated 18.01.1983 and received consideration of Rs.30,000/-.
15.It was stated in the plaint that the 2nd to 5th defendants influenced the first defendant to plot and sell the nanja lands. The first defendant executed four sale deeds in favour of 2nd to 5th defendants. It was stated that the defendants prepared the sale deeds with false recitals. The plaintiffs continued to be in possession. It was stated that the four sale deeds were registered on the same date. The second defendant was a lawyer and had also acted as a lawyer of the first defendant. The plaintiffs filed the suit seeking declaration of title, injunction to protect possession and a declaration that the four sale deeds were not binding on them.
16.The 2nd-5th defendants filed their written statements. They stated that the suit was not maintainable under Section 281(A) of Income Tax Act, which barred institution of any suit claiming a transaction as a benami transaction. They denied the averments made in the plaint. They specifically denied that the sale deed executed by PL.R.M.Valliammai Achi in favour of the first defendant was a benami transaction. They also denied that consideration was not paid by the first defendant for the said transaction. They stated that the first defendant had earlier monetary transactions with PL.RM.Valliammai Achi and had handed over title deeds to PL.RM.Valliammai Achi. They claimed that the sale transaction was a lawful transaction. It was stated that the first defendant took possession of the property and leased them out to Sivananthi. At the time, when the 2nd-5th defendants purchased the property, lands was lying fallow.
17.They also denied the averments that the first defendant had executed a consent document on 08.06.1966. It was stated that the signatures of the first defendant were obtained in blank stamped papers and white papers. It was further stated that the cancellation of the sale deed would have no legal effect. The allegations made against them in the plaint were denied. It was stated that the sale deeds executed by the first defendant in their favour were valid documents. It was stated that the second defendant had filed vakalat on behalf of the first defendant only for obtaining return of a document and had not conducted any case on behalf of the first defendant. It was stated that the defendants were in possession of the property. They claimed that the suit should be dismissed.
18.The 2nd-5th defendants filed an additional written statement. This was pursuant to an amendment of the plaint. They stated that there were no wire fences put up on the property. They further stated that the claim of the plaintiffs that they have acquired title by prescription through adverse possession is not correct. They sought dismissal of the suit.
19.On the basis of the above pleadings, the Additional District Munsif, framed the following issues for consideration:
?1)Whether the plaintiffs were entitled to the relief of declaration of title?
2)Whether the plaintiffs are entitled to the relief of permanent injunction?
3)Whether the sale deed executed in favour of the 2-5 defendants by the first defendant is binding on the plaintiffs?
4)To what other reliefs, the plaintiffs are entitled to?
20.The parties were invited to let in evidence. However, as stated above, the plaintiffs' counsel did not come forward to cross examine the witnesses for the defendants. Consequently, judgment was passed on 16.04.1991. That judgment was later set aside on appeal and the trial recommenced and evidence was again re-recorded. During trial, R.M.M.Annamalai Chettiar was examined as PW-1 and four other witnesses were examined as PW-2 to PW5. On the side of the defendants, the second defendant Prabakara Singh was examined as DW-1 and the fifth defendant was examined as DW-2. The plaintiffs marked Ex-A1 to Ex-A64 and the defendants marked Ex-B1 to Ex-B54. Ex-A3 is the sale deed executed by PL.RM.Valliammai Achi in favour of the first defendant, dated 06.06.1966. Ex-A4 is the consent letter give by the first defendant to PL.RM.Valliammai Achi. Ex-A6 to Ex-A15 are the kist receipts. Ex-A16, dated 27.12.1976 is the cancellation deed of Ex-A3. Ex-A17, dated 16.07.1978 is the copy of the Will executed by PL.RM.Valliammai Achi. Ex-A32-35, are the gift settlement deeds executed by PL.RM.Alagappan in favour of the plaintiffs dated 08.01.1981 and 20.08.1981. The other documents included letters and correspondences. Ex-A48-50 are the sale deeds executed by the first defendant in favour of the 3rd, 4th and 5th defendants. Among the documents filed by the defendants, Ex-B9, dated 03.02.1983 is the sale deed in favour of the second defendant. Ex-B13 to Ex-B27 are the kist receipts. Ex-B36, is the chitta for the land.
21.On the basis of the oral and documentary evidence, the learned Additional District Munsif, Madurai, found that the signature of the first defendant in Ex-A4, dated 08.06.1966, which is the consent letter executed by her in stamp papers actually contained her signature in a rubber stamped facsimile. It was held that the signature in a rubber stamp document would make the document invalid. The issue of declaration of title was held against the plaintiffs. It was held that Ex-A3, sale deed executed by PL.RM.Valliammai Achi in favour of P.Mary Jacob was a valid document and there cannot be any declaration against the same. The learned Additional District Munsif, dismissed the suit with costs.
A.S.No.28 of 1993:-
22.The plaintiffs filed A.S.No.28 of 1993 challenging the judgment and decree. The learned Principal District Judge, Madurai took up the appeal for consideration on 25.06.1994. He reappraised the evidence and framed points for consideration. He found that the first defendant had executed a consent letter in Ex-A4, on 08.06.1966, within two days from the date of registration of sale in her name by Ex-A3. The learned Judge held that Ex-A3 is a sham and nominal document. He further held that consideration was not paid. He further held that the sale deed was executed to protect the property from the husband of PL.RM.Valliammai Achi. He also observed that the first defendant had executed a sale deed in favour of the 2-5 defendants and held that the sale deeds were executed in the face of the revenue records standing in the names of plaintiffs and in the face of the sale deed in favour of the first defendant having been cancelled by Ex-A16. The learned Judge held that the plaintiffs were in possession. He allowed the appeal and set aside the judgment, dated 24.04.1992 in O.S.No.364 of 1983 and thereby, decreed the said suit.
S.A.No.18 of 1995:-
23.Challenging this judgment and decree, the defendants had filed the present second appeal. The course through which the second appeal travelled had been recounted earlier.
24.Pending appeal, the 1st, 2nd and 5th appellants died and their legal heirs were brought on record. Subsequently, further alienation was made over to the property and the purchasers were also been impleaded as parties to the appeal.
25.The second appeal had been admitted on the following substantial questions of law:
?Whether the judgment of the lower appellate Court reversing the judgment of the trial Court is vitiated by its failure to consider the entire evidence on record and apply the correct principles of law??
26.Thereafter, on 11.04.2007, during hearing of the arguments, it was felt necessary to formulate an additional substantial question of law, which is as follows:
?Whether the learned District Judge was right in holding Ex-A3 as sham and nominal when no circumstance had been established for the purpose of such transaction especially in favour of a total stranger unrelated to the vendor??
27.In the judgment of this Court, dated 18.09.2007, the following substantial questions of law were noted for consideration:
?a)Whether the learned District Judge was right in holding Ex-A3 as sham and nominal when no circumstance had been established for the purpose of such transaction especially in favour of a total stranger unrelated to the vendor?
b)Whether the learned District Judge was right in placing reliance upon Ex-A6 to Ex-A15, Ex-A18, Ex-A19, Ex-A31, Ex-A39, Ex-A40, Ex-A54 to Ex-56, when the trial Court had categorically found that they do not bear the seal and signature of the concerned department and appropriate authority, to prove the plaintiffs and their predecessors-in-interest possession of the suit property?
c)In the absence of any document to prove possession of the suit property with the vendor, Valliammal Achi, from the date of Ex-A3, is the learned District Judge right in placing reliance on documents long after the sale to hold the document sham and nominal?
d)Is the learned District Judge right in upholding the validity of Ex-
A16, the cancellation deed based on Ex-A4, when it did not contain the signature of the first defendant?
28.Heard arguments advanced by Mrs.Chitra Sampath, learned Senior Counsel for the contesting appellants and Mr.T.V.Ramanujan, learned Senior Counsel for the respondents. The appeal had been dismissed as withdrawn insofar as the 4th and 6th appellants were concerned.
29.The learned Senior Counsel for the appellants pointed out that though in the plaint, averments have been made that the sale deed executed by PL.RM.Valliammai Achi in favour of Mary Jacob, was a benami transaction, it had however been claimed by the respondents that the sale deed was a sham and nominal document and they justified seeking any declaration to cancel the said document. The learned Senior Counsel also stated that the claim of PL.RM.Valliammai Achi that she executed the sale deed to screen the property away from her husband and had no intention to actually convey the property or hand over possession cannot be believed, since PL.RM.Valliammai Achi owned several other properties and no specific reason was had been advanced, why the other properties were not similarly protected and why the suit property alone was the subject matter of such special protection.
30.The learned Senior Counsel also pointed out that the trial Court had opportunity to examine the originals on record and had observed that the signatures in Ex-A4 were facsimile signatures. Ex-A4 was not registered. It was also pointed out that no reason was given as to why steps were not taken to cancel the sale deed, Ex-A3 from 1966 to 1976.
31.It was also pointed by the learned Senior Counsel that the suit was filed only after the death of PL.RM.Valliammai Achi. Ex-B37, dated 05.05.1975, which was a letter from Mary Jacob to a former Chief Minister of the State was also relied upon and it was stated that in the letter she claimed she had mortgaged the property to one Ramanathan Chettiar. This meant that she had exercised her rights as owner. It was also pointed out that the signatures in Ex-A4 being facsimile signatures as pointed out by the learned Additional District Munsif, the said document has to be rejected by the Court. The learned Senior Counsel stated that the appeal must be allowed.
32.Mr.T.V.Ramanujam, learned Senior Counsel for the respondents disputed the contentions raised. He stated that title had not been transferred under Ex-A3. Possession was not handed over. Title deeds were not handed over. Consideration had not been paid. The sale deed was a sham and nominal document. It was also pointed that the second defendant was an Advocate, who wanted to usurp the property. The learned Senior Counsel further pointed out that the 2nd to 5th defendants were speculative purchasers. He also pointed out that the earlier judgment of this Court in the second appeal, wherein, the learned Single Judge had an occasion to observe the original of Ex-A4 and had stated that the signatures found were not facsimile signatures. The learned Senior Counsel also stated that Mary Jacob was alive at the time of institution of the suit. Very significantly, she did not file written statement. She did not come forward to adduce evidence before the Court. In the absence of direct evidence from her, presumptions cannot be drawn surrounding the execution of Ex-A4. He also stated that Ex-A3, the sale deed was also cancelled by PL.RM.Valliammai Achi. The learned Senior Counsel emphasized that the judgment under appeal does not warrant any interference.
33.C.M.P.(MD)No.1950 of 2018 had been filed by the 23th appellant under Order 41 Rule 27 CPC to receive additional evidence, 6 certified copies of 'Adangal' and 636 pages of information furnished under the Right to Information Act by the Tahsildar in Ref.No.Mu.M.No.15190/2017/B3, dated 02.12.2017. It had been stated by the applicant / 23rd appellant that she had purchased the property in the year 1984, but, was not impleaded as an appellant. It was stated that the original records have been destroyed by the trial Court. She had filed an application under the Right to Information Act, seeking information from the Tahsildar regarding the details of the patta granted and consequent proceedings for transfer of patta with respect to the suit property. The documents received along with 6 Adangal documents have been filed as additional documents.
34.In the counter to the petition, it had been stated that the documents have no relevance. It had also been stated that the petitioner has no locus to file this petition. It had also been stated that these documents cannot be received as evidence. It had been stated that petition should be dismissed.
35.I have carefully considered the arguments advanced and the evidence on record.
36.Four plaintiffs have joined together and instituted the suit in O.S.No.634 of 1984 in the Court of Additional District Munsif Court, Madurai. They are close relatives. The 1st plaintiff, A.N.Valliammai is the wife of R.M.H.Annamalai Chettiar. The second plaintiff is the son of R.M.H.Ramanathan Chettiar and the 3rd and 4th plaintiffs were the daughters of R.M.Alagappan Chettiar. R.M.H.Annamalai Chettiar, R.M.Alagappan Chettiar and R.M.H.Ramanathan Chetiar were brothers. Additionally, through twist of fate that fate, R.M.Alagappan Chettiar was also the adopted son of PL.RM.Ramanathan Chettiar and PL.RM.Valliammai Achi. They were also in a way, his paternal grand uncle and aunt.
37.PL.RM.Ramanathan Chettiar and PL.RM.Valliammai Achi did not have children. They however had several properties. Among the properties, the suit schedule property, namely, nanja land measuring 1 acre 75 cents in R.S.No.123/3 in Vilangudi Village, Madurai had been purchased by PL.RM.Valliammai Achi for a consideration of Rs.10,000/- by sale deed in document No.1919/62, dated 28.03.1962. This document was marked as Ex-A2, during trial. In the plaint, it had been stated that PL.RM.Ramanathan Chettiar was a spendthrift and a man of expensive habits. His wife PL.RM.Valliammai Achi, waned to preserve the family properties from him. In or around 1956, since, they had no issues, they also adopted R.M.Alagappan, the father of the 3rd and 4th plaintiffs. With a view to protect the property and hand over them to adopted son, it has been claimed in the plaint that PL.RM.Valliammai Achi joined hands with one of her confidante' Mary Jacob. She executed a sale deed Ex-A3, in favour of Mary Jacob. This sale deed was executed on 06.06.1966. This was registered as document No.3788/1966, in the office of the District Registrar, Madurai. It is the claim of PL.RM.Valliammai Achi, that the sale was a benami transaction. Though the consideration was shown as Rs.10,000/-, she claimed that consideration was never paid by Mary Jacob. Possession was also not handed over to Mary Jacob. The title deeds were also not handed over to Mary Jacob. To confirm that the sale was not meant to be acted upon, Ex-A4 had been executed by Mary Jocob. It is an undertaking executed by Mary Jacob in favour of PL.RM.Valliammai Achi. It was executed on 08.06.1966.
38.In Ex-A4, Mary Jacob, stated that though the suit property had been conveyed to her by PL.RM.Valliammai Achi, she (Mary Jacob) had not given any consideration for the same; that it had been conveyed to her as a benami sale; that she would reconvey the property to PL.RM.Valliammai Achi or to her nominee without any protest and if owing to circumstances, she does not reconvey, PL.RM.Valliammai Achi would have every right to cancel the sale deed. She also covenanted that her husband had also accepted to the terms expressed in Ex-A4 and had also signed as a witness.
39.The only issue surrounding the entire litigation is focussed around the interpretation given to Ex-A3 and Ex-A4. This, has been fairly admitted by both the learned Senior Counsels, who argued with much eloquence. It is the contention of Mr.T.V.Ramanujam, learned Senior Counsel that Ex-A3, sale deed is a sham and nominal document, which did not create any right to the vendee. She was not put in possession. She was not handed over the title deeds and she did not pay any consideration. This document, according to the learned Senior Counsel, has to be read in conjunction with Ex-A4, which had been executed in close proximity within two days from the date of execution of Ex-A3. In Ex-A4, the vendee, Mary Jacob, had agreed to reconvey the property, whenever demanded and also gave a right to the vendor, PL.RM.Valliammai Achi, to cancel the sale deed. She acknowledged that Ex-A3 had been executed in view of the family troubles of PL.RM.Valliammai Achi. A reading of Ex-A4 would make it clear that Ex-A3 is a sham and nominal document and there need not be any prayer to set it aside. The learned Senior Counsel pointed out that if Ex-A3 is held to be sham and nominal, then all further transactions effected by Mary Jacob would all be void.
40.This contention advanced by Mr.T.V.Ramanujan, learned Senior Counsel, has been very seriously disputed by Mrs.Chitra Sampath, learned Senior Counsel for the defendants. She claimed that Ex-A3 is a registered sale deed and consequent to registration, nothing more survives for further interpretation of the clauses therein. Ex-A3 contains specific clauses regarding the payment of consideration of Rs.10,000/-, about the permission granted for mutation of revenue documents in the name of Mary Jacob and about the handing over of possession. The learned Senior Counsel insisted that no oral evidence can be let in as against the written covenants in the document.
41.The events which took place subsequent to the execution of these two documents will also have to be narrated. It is the claim of the plaintiffs that notwithstanding the covenants relating to possession and mutation of revenue records in Ex-A3, the physical possession of the suit property remained with PL.RM.Valliammai Achi. To establish that, they had produced Ex-A6 to Ex-15, which are the kists receipts for the period from 1972 to 1982 in sporadic interval. These documents have been challenged by the learned Senior Counsel for the defendants stating that seal of the Government is not found in the documents and consequently, credibility cannot be attached to them.
42.A further fact to be examined is that PL.RM.Valliammai Achi by Ex- A16, dated 27.12.1976, cancelled the sale deed executed in favour of Mary Jacob. She then executed a Will in favour of her adopted son, Alagappan Chettiar. That Will became operative on her death. Alagappan Chettiar, the legatee under the will, executed gift settlement deeds on 08.01.1981 and 20.08.1981, settling portions of the property in favour of each of the plaintiffs. It is under those circumstances that the plaintiffs claim right and title over the property. But, Mary Jacob, was not yet done. She conveyed portions of the property by registered sale deeds dated 03.02.1983, Ex-B9, and Ex-A48, Ex-A49 and Ex-50, to B.Prabakara Singh, Grace Vayolo Rosaline, H.Ramadoss and H.Muthulakshmi. It is thus seen that at that point of time, two groups laid claims to title of the same property. The plaintiffs on the one hand and the defendants and others on the other hand. The sale deeds executed by Mary Jacob, dated 03.02.1983, was the immediate cause of action for instituting the suit. The plaintiffs instituted the suit seeking primarily declaration of title.
43.The plaintiffs filed the suit and arrayed as defendants Mary Jacob, B.Prabakara Singh, Grace Vayolo Rosaline, H.Ramadas and H.Muthulakshmi. The institution of the suit was necessary, since there was a cloud over the title claimed by the plaintiffs. The narrow issue surrounding Ex-A3 and Ex-A4 consequently widened into a outright war for title and possession of the suit property between the plaintiffs and the 2nd to 5th defendants.
44.It is in this context that the validity or otherwise of Ex-A3 will have to be examined and re-examined. If it is held that ExA3 sale deed was only a sham and nominal document, then no right would flow to Mary Jacob and consequently, no right would flow to B.Prabakara Singh and the other defendants. If on the other hand, Ex-A3 is determined to be a validly executed document, then the plaintiffs will loose right and title over the suit property.
45.It must also be mentioned that the 4th defendant, H.Ramadas, and the 6th appellant, who was impleaded as legal heir of H.Muthulakshmi, the 5th defendant, filed memos, withdrawing their claims over the suit schedule property. It must also be mentioned that Mary Jacob, who was the first defendant, never participated or contributed to clear the air over the contentious issues raised. She did not file written statement. She did not come forward to tender evidence. She never stated her stand about the circumstances surrounding the execution of Ex-A3 and Ex-A4. She died pending the second appeal and her legal heirs were also brought on record. They did not participate in the appeal proceedings, though they were represented by Counsel.
46.The main contestants in the appeal are the purchasers from the first defendant. The significance of silence of Mary Jacob right through the judicial proceedings had been pointed by Mr.T.V.Ramanujam, learned Senior Counsel for the plaintiffs. According the learned Senior Counsel, the second defendant, B.Prabakara Singh, acted as her advocate, though not in judicial proceedings, but still he exploited the situation and obtained the sale deeds Ex-A48 to Ex-A50 and Ex-B9 from her. The learned Senior Counsel alleged fraud played by the second defendant. A further circumstance stated in the pleadings is that in 1967, Mary Jacob shifted to Bangalore with her husband. This had been projected by PL.RM.Valliammai Achi for not obtaining a reconveyance deed or executing a sale deed at an earlier point of time.
47.One further circumstance pointed out is that Mary Jacob and her husband had the experience of facing insolvency proceedings in I.P.No.23 of 1967. In the said application, they had an obligation to disclose their properties. They had disclosed two immovable properties, but, did not disclose the suit property as their property. This fact was emphasized as a telling circumstance to infer that Mary Jacob never claimed any right or title over the suit property. It was urged by Mr.T.V.Ramanujumam, that only due to the intervention and influence of the second defendant, B.Prabakara Singh, Advocate, that Ex-A48 to Ex-A50 and Ex-B9 came to be executed by Mary Jacob.
48.Ms.Chitra Sampath, the learned Senior Counsel for the defendants relied on (1995) 1 SCC 198, Ramti Devi vs Union of India, wherein, a sale deed executed by the defendants to discharge pre-existing debts, was registered and the claim that it was void and was not binding, was examined and the Honourable Supreme Court held that a suit filed beyond three years from the date of execution / registration of the sale deed was barred by time and the claim was also barred under Section 92 of the Indian Evidence Act. It was pointed out by the learned Senior Counsel that in the instant case, the suit was filed after more than 25 years from the date of execution of Ex-A3.
49.The learned Senior Counsel for the defendants also relied on (1998) 7 SCC 498, Bishundeo Narain Rai and others vs Anmol Devi and others, for the proposition that under Sections 54 and 8 of the Transfer of Property Act, on execution and registration of sale deeds, the ownership, title and interests on the property passes to the purchasers, unless a clear intention is either expressed or necessarily implied, which intention has to be proved by the party asserting that title had not so passed on registration of the sale deed. It had been further held that such intention can be gathered by intrinsic evidence from the averments of the sale deeds. It had been pointed out that in the instant case, no such evidence had been let in by the plaintiffs.
50.Mr.T.V.Ramanujam, learned Senior Counsel for the plaintiffs relied on 1991-1-LW-649, I.N.Govindarajan and another vs The Indian Overseas Bank, Pondichery, wherein a Division Bench of Madras High Court held as follows:
?Two types of benami transactions are prevalent, (as noticed in AIR 1980 SC 727):
(i)Where a person buys property with his money in the name of another without intention to benefit the other,
(ii)Where a person executes conveyance in favour of another, without intending to transfer the beneficial interest to the other person- Second type is in a loose and erroneous sense called benami.?
51.It was further held as follows:
?.....sham and nominal transactions would not be covered by the provisions of the Act. It is open to the parties to contend that a transaction is sham and nominal and no title passed under it.?
52.The learned Senior also placed reliance on (1982)1 SCC 4, Gangabai vs Chhabubai, with respect to the scope of 92 of Indian Evidence of Act. It had been held as follows:
?11.The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties....?
53.The underlying principles enunciated in the above discussion are that clauses in a sale deed with clear and lucid terms cannot be specifically re-interpreted. However, evidence can be let in to examine the intention of parties. If the parties had not intended to convey the property and the same is established during evidence, then the document can be termed as sham and nominal. Keeping this principle in mind, the facts in this case will have to be examined.
54.In the present case, Ex-A3 sale deed dated 6.6.1996 is a registered document. It is a sale deed executed by PL.RM.Valliammai Achi, in favour of Mary Jacob. Mary Jacob, immediately, within two days, executed Ex-A4. By this document, she expressed very clearly that Ex-A3 was only a benami transaction and she did not pay any consideration. She also granted full liberty to PL.RM.Valliammai Achi to cancel the document, if she (Mary Jacob) does not reconvey the property on demand. One further factor in the interpretation of the Ex-A4 is the contradictory view expressed by the learned Additional District Munsif and by the learned Single Judge of this Court. They had opportunity to examine the original of Ex-A4. They expressed differing of opinions on the signatures in Ex-A4. The Additional District Munsif observed that the signatures of Mary Jacob in Ex-A4 were facsimile signatures. On the other hand, the learned Single of this Court while delivering the judgment in this very same second appeal, stated that the signatures are not facsimile signatures and are original signatures.
55.Unfortunately, in the interregnum period when the litigation has been pending, the original records have been destroyed by the District Court, Madurai. However, the evidence reveals that during the cross examination of DW-1, Annamalai Chettiar, the suggestion put was that the signature of the husband of the Mary Jacob was in rubber stamp. There was no suggestion that the signature of Mary Jacob was in rubber stamp or was a facsimile signature. The opinion of the learned District Munsif has to be rejected, since it was not even the case of the defendants that the signatures of Mary Jacob were facsimile signatures or rubber stamps. The learned Additional District Munsif has exceeded judicial propriety by such an unwarranted opinion. The learned Senior Counsel for the plaintiffs termed it as a perverse finding.
56.Subsequently, the learned Single Judge of this Court had examined the signatures and had categorically stated that the signatures of Mary Jacob are neither facsimile signature nor are they rubber stamped. The learned Senior Counsel for the defendants pointed out that the judgment had been set aside by the Supreme Court. It must be emphasized that Surpeme Court afforded opportunity of rehearing the case only on the ground of procedural irregularity and not on the ground that the judgment required to be set aside. I hold that the signatures in Ex-A4 do not suffer from any irregularity and I further hold that it not being the case of the defendants that the signatures of Mary Jacob are facsimile signatures or rubber stamped, it would certainly not be subserving justice to hold so in the absence of any evidence in that regard. I hold that Ex-A4 is a document validly executed and can be relied on to adjudicate on the legality or otherwise of Ex-A3.
57.In (2003)3 MLJ 604 T.A.Mohideen Abdul Kadir (Died) and another vs Abdul Rahim (died) and others, it had been held as follows:
"The main point for determination is whether the plaintiff has proved that the suit properties were purchased benami in the name of D1 from out of the income of M.S.Amir Moideen. The burden of proof squarely lies upon the plaintiff to prove the benami nature. In determining the benami nature of the transactions, the Courts are usually guided by the following circumstances:-
(i) The source from which the purchase money came;
(ii) The nature and possession of the property after the purchase;
(iii) Motive, if any, for giving the transaction a benami colour;
(iv) The position of the parties and the relationship, if any, between the claimant and the alleged benamidar;
(v) The custody of the title deeds after the sale; and
(vi) The conduct of the parties concerned in dealing with the property after the sale. Jaydayal Poddar v. Bibi Barra (1994) 1 SCC 3."
58.In the instant case, it is the specific case of the plaintiffs that PL.RM.Valliammai Achi had executed Ex-A3 in favour of Mary Jacob to screen the property from the avarices of her husband. She feared that he would deal with the property to the disadvantage of the adopted son. Once, it is held that the signatures in Ex-A4 are the true signatures of Mary Jacob, then the contents therein have to be taken as true, valid and written with knowledge of their impact. Mary Jacob did not come forward to give evidence before the Court. She did not chose to appear. She did not file written statement.
59.Reference with much advantage can be made to the observation in AIR 1927 PC 230, Sardar Gurbaksha Singh vs Gurdial Singh, wherein, it had been held that ?Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct .....?
In this circumstance, the allegation that she was represented by a Counsel who practically deserted her in the judicial proceedings assures significance. I hold that the Counsel had deliberately prevented her from exercising free will to speak up. She was literally chained to the litigation with no hope of expressing herself. This circumstance forces me to hold that the sale deeds in favour of the 2nd to 5the defendants were obtained by influence and the implication of the role of the 2nd defendant, Advocate has to be viewed to their and his disadvantage.
60.It is also seen that the PL.RM.Valliammai Achi exercising her right had executed Ex-A17, registered Will, dated 16.07.1978, bequeathing the property to her adopted son, Alagappan Chettiar. This will had been proved by examination of the attestor, who was the first witness to Ex-A17. He stated that she was in sound and disposing state of mind. The will had been proved in manner known to law. The 'B' schedule property in the Will is the suit property.
61.It has been contended by the learned Senior Counsel for the defendants that Ex-A3 had been written in a stamp papers purchased several years earlier in a different name. I am not able to read much into that aspect, since this has been explained by the witness, by stating that it had been written in stamp papers, which were already in their possession. It must be stated that the witness was the ?Karnam? accountant of the plaintiffs' family and subsequently it was natural that he would have knowledge about the stamp papers in his possession. It has to be noted that PL.RM.Valliammai Achi, also had finance business and on that account also, possession of stamp papers is not unnatural.
62.It was further contended by the learned Senior Counsel that in the document, Ex-A4, it had been mentioned that the sale deed Ex-A was a benami transaction. It was pointed out that, however, during the course of arguments, the stand taken by the plaintiffs was that it was a sham and nominal document. Again, I have to hold that the parties knew that Ex-A3 was not meant to be acted upon and the nomenclature they give for the document is immaterial. They stated that it was a benami transaction, which was the only description and knowledge they had about documents, which are not to take effect. Consequently, I hold that Ex-A3 is a sham and nominal document.
63.C.M.P.(MD)No.1950 of 2018 had been filed by the 23rd appellant under Order 41 Rule 27 to let in additional evidence. However, these documents, would not be of any assistance to give a finding on the primary issues regarding Ex-A3 and Ex-A4. The documents, forwarded to the defendants under the Right to Information Act, cannot have a bearing on the title of the property. It is clear that possession followed the title of PL.RM.Valliammai Achi, and subsequently, it had bene transferred to the plaintiffs. Mary Jacob's stony silence, either voluntary or forced has actually acted to the disadvantage of the defendants.
64.A strong argument had been put forward by the learned Senior Counsel for the plaintiffs that though Mary Jacob was represented by an Advocate, she was prevented from voicing her view on the issues in the suit either through a written statement or through the witness box. Clogging her voice, clearly establishes the fact that the defendants have not come to Court with clean hands. It does harm their claims of legality. I hold that the sale deeds in the names of the 2nd to 5th defendants have been obtained by manipulation and cannot convey any title in the face of the earlier settlement deeds in the names of plaintiffs. The defendants should have examined the encumbrance certificate which would have reflected the cancellation deed of Ex-A3 and also the execution of the settlement deeds in favour of the plaintiffs. I find no merits in considering the documents under Order 41 Rule 27 of CPC. They would be of no assistance to determine title. Consequently, that petition is dismissed.
65.The substantial questions of law are answered that Ex-A3 is a sham and nominal document as confirmed by Ex-A4 and that title had not passed to Mary Jacob. Consequently, she could not transfer any title to the 2nd to 5th defendants and / or their legal heirs and / or subsequent purchasers. Ex-A3 is declared as a sham and nominal document, which would imply PL.RM.Valliammai Achi had every right to execute the Will, Ex-A17, to bequeath the suit property to her adopted son, Alagappan Chettiar, who in turn, had every right to settle the property in favour of the plaintiffs. The questions of law are answered accordingly.
66.In view of all the reasons stated above, I hold that the judgment and decree under appeal requires no interference. Consequently, the second appeal is dismissed with costs. The judgment and decree dated 25.07.1994 in A.S.No.28 of 1993 on the file of the Principal District Court, Madurai, is confirmed. The judgment and decree dated 24.04.1992 made in O.S.No.364 of 1983 on the file of the Additional District Munsif Court, Madurai, is set aside. O.S.No.364 of 1983 is decreed as prayed for.
To
1.The Principal District Judge, Madurai.
2.The Additional District Munsif, Madurai,
3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.