Madras High Court
Raphael Alphonse vs G.Padmavathi
Author: Sathi Kumar Sukumara Kurup
Bench: Sathi Kumar Sukumara Kurup
A.S.No.378 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved On : 17.08.2022
Delivered On : 25.11.2022
CORAM :
THE HON'BLE MR. JUSTICE SATHI KUMAR SUKUMARA KURUP
A.S.No.378 of 2014
and
M.P.No.1 of 2014
---
Raphael Alphonse .. Appellant
Versus
1. G.Padmavathi
2. K.Abirami
3. Sacred Heart General Charitable Trust,
Rep by Founder – Trustee
D.Augustin Lourdunathan .. Respondents
Appeal Suit filed under Section 96 r/w. Order XLI, Rule 1 of Civil
Procedure Code to set aside the Judgment and Preliminary Decree dated
27.11.2012 passed in O.S.No.189 of 2010 on the file of the learned Principal
District Judge, Cuddalore District.
For Appellant : Mr. R. Saseetharan
For Respondents : Mr. R. Gururaj for R1 & R2
: No Appearance – R3
JUDGMENT
This is an Appeal filed by the first Defendant in O.S. No. 189 of 2010 seeking to set aside the Judgment and Decree dated 27.11.2012 passed by the learned Principal District Judge, Cuddalore District. https://www.mhc.tn.gov.in/judis Page 1 of 30 A.S.No.378 of 2014
2. For the sake of convenience, the parties to this appeal are referred to as per their litigative status in the suit in O.S. No. 189 of 2010 as 'Plaintiffs' and 'Defendants'.
3. The prayer in O.S. No. 189 of 2010 is extracted hereunder:
“a) a preliminary decree for partition and separate possession of plaintiff's 2/5 shares in the suit 'A' schedule property may be passed;
b) in final decree proceedings, an advocate/Commissioner may be appointed to divide the suit 'A' schedule property by metes and bounds into 5 equal shares and to allot 2 such shares to Plaintiffs, contiguously;
c) Plaintiffs may be put in possession of the properties so allotted to them, if necessary through Court;
d) enquiry into future accounting may be ordered by separate proceedings under Order 20 Rule 18 CPC;
e) 2nd Plaintiff's title to the Suit 'B' schedule property may be declared;
f) the Defendants, their men, agents and any person claiming under them, may be restrained by a decree of permanent injunction from in any manner interfering with 2nd Plaintiff's peaceful possession and enjoyment of the suit 'B' schedule property;
alternatively
g) Defendants may be directed to put 2nd Plaintiff in possession of the Suit 'B' schedule property and if necessary, https://www.mhc.tn.gov.in/judis Page 2 of 30 A.S.No.378 of 2014 delivery may be effected through court,
h) Defendants may be directed to pay Plaintiffs the cost of the Suit; and
i) Such other reliefs as are deemed fit may be passed.”
4. The brief facts which are necessary for better appreciation of the case are as follows:
4.1. The first Plaintiff – Padmavathi and the second Plaintiff – Abirami in O.S. No. 189 of 2010 are the daughters of Ganapathy and Mariammal. Ganapathy and Mariammal had five children. Apart from Plaintiffs 1 & 2, there are two other daughters by name Hemavathi and Sharmila and one son by name Baskaran born to Ganapathy and Mariammal.
The only son of Ganapathy and Mariammal viz., Baskaran had filed a Suit in O.S.No.151 of 1996 on the file of the Sub Court, Cuddalore where the parents viz., Ganapathy and Mariammal were Defendants 1 & 2 and four sisters were Defendants 3 to 6. During the pendency of the Suit, there was a compromise. In the compromise, 'B' schedule property was allotted to the father viz., Ganapthy. Those items are in S.No.411/1 which have new survey number as 255 measuring an extent of 5 Acres 12 Cents out of 15 Acres 12 Cents in Visur Village, 5 Acres and 12 Cents, which is item No.1 in 'B' schedule property. Similarly, all the sharers were given shares. The second Plaintiff in https://www.mhc.tn.gov.in/judis Page 3 of 30 A.S.No.378 of 2014 the Suit in O.S.No.189 of 2010 viz., Abirami was given 'G' schedule property measuring 5 Acres which includes the land in old S.No.411/1 and New S.No.255, out of 15 Acres 12 Cents in Visur Village. Based on the compromise decree, the property allotted to one of the daughters viz., Abirami, had been in her possession and enjoyment. Based on the compromise decree in O.S.No.151 of 1996 each sharer took possession of their respective items. After the death of Ganapathy and Mariammal namely Defendants 1 and 2 in O.S.No.151 of 1996, the share of the father viz., Ganapathy devolved on the widow, daughters and son, thereby each got 1/6 share. (Plaintiff and Defendants 2 to 6 received the share of the father as 1/6.) After the death of the mother, again 1/5 share was devolved on Plaintiffs and Defendants 3 to 6 in O.S. No. 151 of 1996. Therefore, the Plaintiffs in the Suit in O.S. No. 189 of 2010 had got 2/5 share in 'A' schedule property, that was originally allotted to the parents of the Plaintiffs and Defendants 3 to 6 in O.S.No. 151 of 1996. In the present suit in O.S. No. 189 of 2010, 'B' schedule property is the property that was actually allotted to the share of Abirami, one of the daughters, who is the spinster. She had joined the Sarada Ashram by becoming a Sanyasini. She is residing in Ashram at Kolkatta in West Bengal. She had appointed the first Plaintiff in O.S. No. 189 of 2010 as her Power of Attorney Agent by means of a registered document dated 19.04.2010 and the https://www.mhc.tn.gov.in/judis Page 4 of 30 A.S.No.378 of 2014 power is subsisting. Further, Hemavathi, Sharmila and their brother viz., Baskaran had sold their property which they got in the compromise decree in O.S.No. 151 of 1996 under a registered sale deed dated 01.09.2008. Similarly, a sale deed was executed on behalf of the second Plaintiff, who is a spinster residing at Kolkatta in Sarada Ashram, on the basis of alleged Power of Attorney said to have been given by her on 28.07.2008 to her brother Baskaran. The sale seems to have been executed in respect of the property that was allotted as G' schedule property in O.S. No. 151 of 1996 on the file of the Sub Court, Cuddalore. It is the contention of the Plaintiffs in O.S.No.189 of 2010 that the second Plaintiff had not appointed Baskaran as a Power of Attorney Agent. The alleged power deed is a rank forgery and the sale was executed by way of impersonation and that the photographs affixed in the deed is not that of the second Plaintiff in O.S.No.189 of 2010. The second Plaintiff/Abirami does not sign in Tamil. She signs only in English. Thus by fabricating a Power of Attorney deed, Baskaran had sold 1/5 th share of the second Plaintiff in 'A' schedule property in O.S.No.151 of 1996 to the Appellant/first Defendant herein. The first Defendant in O.S.No.189 of 2010, Appellant herein, in turn, had sold the property by means of a registered sale deed in favour of the second Defendant dated 31.05.2010. Both the sale deeds are invalid in so far as the share of the second Plaintiff is concerned. The https://www.mhc.tn.gov.in/judis Page 5 of 30 A.S.No.378 of 2014 Plaintiffs in O.S.No.189 of 2010 had not sold their share that she obtained by the compromise decree in O.S. No. 151 of 1996. As per the plaint averments in O.S. No. 189 of 2010, the first Plaintiff came to know about the forgery and fraud committed behind the back of the second Plaintiff regarding the sale of the second Plaintiff's property by their deceased brother during his life time, only a few months back, before filing the suit in O.S.No.189 of 2010. Thereafter, the second Plaintiff appointed the first Plaintiff as a Power of Attorney. The second Defendant talked about compromise but did not pursue. Therefore, the Plaintiffs were forced to file the Suit in O.S.No.189 of 2010. Regarding A' schedule property in O.S. No. 189/2010, the Plaintiffs are entitled to 2/5th shares. Therefore, Plaintiffs seek partition. Regarding B' schedule property, in which the second Plaintiff is entitled to the property and hence, the Plaintiffs seek declaration of title and permanent injunction and alternative relief of recovery of possession.
4.2. As per the plaint averments in O.S. No. 151 of 1996, the Defendants have unilaterally left some extent for the Plaintiffs. They had not taken the possession of Plaintiffs' shares. Therefore, the Plaintiffs in O.S. No. 189 of 2010 are deemed to be in joint possession. Hence, the valuation is adopted under Section 37 (2) of the Court Fees Act. The first Defendant is https://www.mhc.tn.gov.in/judis Page 6 of 30 A.S.No.378 of 2014 impleaded in order to obtain a binding decree since the brother of the Plaintiffs 1 and 2 in O.S.No.189 of 2010 viz., Baskaran, who has sold the property to the first Defendant, is dead. Accordingly, the Plaintiffs have instituted the suit against the Defendants for the reliefs stated supra.
4.3. In the written statement filed by the first Defendant/Appellant, he has stated that the cause of action is multifarious and the Suit itself is not maintainable and shall be dismissed in limini. The Suit is bad for mis-joinder of alleged cause of action and multifariousness. The Suit for partition and for declaration with consequential relief of injunction or alternatively for recovery of possession stand illegally, unlawfully, combined and clubbed together in one and the same Suit. The Suit is also bad for non-joinder of necessary party namely Plaintiffs' two other sisters viz., Hemavathi and Sharmila and Plaintiffs' deceased brother viz., Baskaran's legal heirs. Also, the Suit is bad for non-joinder of all the properties that belong to the co-sharers.
4.4. The Suit properties having been alienated and were possessed originally by first Defendant who alienated it to the second Defendant herein, the Plaintiffs cannot invoke Section 37 (1) of Court fees Act. The Suit is not properly valued for the purpose of the Court fees and the jurisdiction. https://www.mhc.tn.gov.in/judis Page 7 of 30 A.S.No.378 of 2014 4.5. As per the Plaint averments in O.S. No. 189 of 2010, the deceased Baskaran is the brother of Abirami, the second plaintiff. The said Abirami is leading ascetic life in Sarada Ashram. While so, the deceased Baskaran is guilty of impersonation, cheating, forgery and creating bogus documents. The first Defendant has been informed that the so-called impersonator, impersonating the real sister Abirmi is Archana who is none other than the maternal uncle's daughter of Plaintiffs and their brother and two other sisters. It is a key evidence that the brother and sisters involved in the offence of impersonation. The said Archana has produced her I.D proof, Ration Card with reference to the brother and sister's parental home for the registration of power deed dated 28.07.2008 as the document to be believed to have been executed by G.Abirami in favour of her brother Baskaran since deceased. Therefore, in the above stated circumstances, the Plaintiffs cannot be heard to deny their involvement in the offence and knowledge of the above stated offences. The Plaintiffs cannot take advantage of their own fraud and cheating and other offences to file this Suit. The Suit is devoid of any merit. The Suit is speculative one just to make unlawful gain. Therefore, the first Defendant sought to prosecute the Plaintiffs and other sisters and all other concerned in the commission of the above offence and for damages. The first Defendant, https://www.mhc.tn.gov.in/judis Page 8 of 30 A.S.No.378 of 2014 believing the power deed dated 28.07.2008 executed by real Abirami as it has all the necessary legal characteristics and trappings of a document as executed by Abirami, had purchased the properties for valid consideration under the registered sale deed dated 26.08.2008. Similarly, the first Defendant also purchased the properties under the registered sale deed dated 01.09.2008 from the other sisters namely Hemavathi and Sharmila for valid consideration. Therefore, the Defendants 1 and 2 are entitled to their equity and indemnification in the appropriate legal proceedings.
4.6. In the light of the averments in the Plaint and the written statement, the learned Principal District Judge, Cuddalore had framed the following issues:
1.Whether the frame of the Suit is bad in law?
2.Whether the Suit is bad for non joinder of Hemavathi, Sharmila and the legal heirs of deceased Baskaran as parties to the Suit?
3.Whether the Plaintiffs are entitled to 2/5 shares in the Suit properties?
4.Whether the sale deed dated 01.09.2008 is valid and binding upon the Plaintiffs?
5.Whether the power of attorney deed dated 28.07.2008 has been https://www.mhc.tn.gov.in/judis Page 9 of 30 A.S.No.378 of 2014 executed by impersonation?
6.Whether the alienation by alleged power of attorney is fraudulent?
7.Whether the Court Fees have to be paid u/s 37(1) over the market value of the properties?
8.Whether the Suit has been properly valued and correct court fees paid?
9.To what reliefs the Plaintiffs are entitled to?
4.7. During trial, on the side of the Plaintiffs, the first Plaintiff alone had examined herself as P.W-1 and and the documents were marked as Ex.A-
1 to Ex.A-4. On the side of the Defendants, first Defendant had examined himself as D.W-1 and the documents were marked as Ex.B-1 to Ex.B-4.
4.8. On appreciation of evidence, the learned Principal District Judge had decreed the Suit with costs except the prayer column XV(f). Aggrieved by the judgment and decree dated 27.11.2012, the present Appeal suit is filed.
5. Mr.R.Saseetharan, learned Counsel for the Appellant/first Defendant submitted that the second Plaintiff claims to have renounced the worldly life and leading ascetic life and hence, she has no power to execute a https://www.mhc.tn.gov.in/judis Page 10 of 30 A.S.No.378 of 2014 Power of Attorney in favour of first Plaintiff. The Suit filed by the sisters against the sale made by the brother is one advantage given to the brother and another advantage given to the sister/second plaintiff, who had renounced the world.
6. The learned Counsel for the Appellant/first Defendant invited the attention of this Court to the deposition of the first Plaintiff. The relevant portion is extracted hereunder:
“mgpuhkp rhuhjh klj;jpy; jPl;ir bfhLj;j fhyj;jpy; mtuJ rhu;gpy; Ml;nrgiz ,y;iy vd;W ahuhy; ifbahg;gkplg;gl;lJ vd;W vdf;Fj; bjupahJ/ mgpuhkp fy;fj;jhtpy; rhujh klj;jpy; jPli ; r th';fpdhu;/ jPl;ir th';fpa njjp. khjk; epidtpy;iy/ mtu; jPl;ir th';fpa jfty; vdf;Fj; bjupa[k;/ mtu; jPl;ir th';Fk; Kotpw;F tu fhuzk;. MtUfF ,y;yw thH;fi ; fapy; tpUg;gk; ,y;yhky; Jwt[ thH;f;ifapy; xU mgpkhdk;. vd; bgw;nwhu; ,we;j gpd; mgpuhkp rd;dpahrpahf nghFk; Kot[fF ; te;J Kjypy; brd;id rhujh klj;jpYk; gpd; fy;fj;jh klj;jpYk; brd;W nru;e;jhu;/ brd;id rhujh klj;jpy; fy;Yhupf;fhyj;jpy; 1999nyna brd;W te;J bfhz;oUe;jhu;/ gpd; Kot[ bra;J 2000 Mz;L brd;W nru;e;jhu;/ brd;id rhujh klj;jpy; 2002y; jhd; mtu; fy;fj;jhtpw;F brd;whu;/ brd;idapy; mtu; rhujh klj;jpy; nru;e;jpUe;j fhyj;jpy; vd;dplk; rd;dpahrpahf nrug;nghtjhf jfty; brhy;yptpl;L jhd; brd;whu;/ ////////////////////// brd;id rhujh klj;jpy; 2 Mz;Lfs; j';fpapUe;j fhyj;jpy; v';fs; jha; tPlo; w;F te;J nghf ,Ue;jhu; vd;why; vdf;F mJ https://www.mhc.tn.gov.in/judis Page 11 of 30 A.S.No.378 of 2014 gw;wp bjupahJ/ vdf;F mJ gw;wp bjupahJ/ vdf;F jpUkzk; Md gpd; vd; jha; tPl;ow;F nghf;Ftuj;J cz;L/ ////////////// /////////// vd; mz;zd; kfs; mgpuhkpa[ld; fojj;bjhlu;t[ itj;jpUe;jhu;/ FLk;g ml;ilapy ,Ue;j vd; bgaiu 2001f;F gpd; vLj;Jtpll; hu;fs;/ mjw;F Kd; tRe;juhad; ghisaj;jpy; cs;s tpyhrj;jpd; Flk;g ml;ilapy; vd; bgau; ,Ue;jJ///////////////////// ////////// vdf;Fk; vd; j';if mgpuhkpf;Fk; epyk; ntz;o tHf;F nghl;Ls;nsd;/ vd; mg;ghtpw;F xJf;fg;gl;l ghfj;jpy; mtuJ kiwt[f;F gpd; v';fSf;F nru ntz;oa ghfj;ij nfl;fpnwhk;/ vd; j';if mgpuhkpapd; brhj;J 5 Vf;fu; kw;Wk; vd; mg;ghtpd; K:yk; tuntz;oa ghfj;ij nfhUfpnwd;/ mgpuhkpf;F xJf;fg;gl;l brhj;ija[k; vdf;F fpilf;f ntz;Lk; vd;W nfhUfpnwd;/ tpw;fg;gl;l ,e;j brhj;Jf;fs; midj;Jk; jpUk;g vdf;F fpilf;f ntz;Lk; vd;W nfhUfpnwd;///////////// //////// ghf tHf;fpy; vd; mz;zd; gh!;fupd; thupRfs; kw;Wk; vd; 2 rnfhjupfs; nru;ff; g;gltpy;iy/ brhuf;fhy;gl;L fpuhkj;jpy; 12 tpfpyk; pau;
bjU vd;w tpyhrj;jpy; vd; mz;zd; trpj;jhu;/”
7. It is the contention of the learned Counsel for the Appellant that the second Plaintiff/Abirami had not entered the witness box. Only the first Plaintiff/Padmavathy had instituted the Suit on behalf of the second Plaintiff. Based on the Power of Attorney deed, she had instituted the Suit only with an intention to extract money. The first Plaintiff/Padmavathy had not sold the property either to the first Defendant or to the second Defendant. As per her https://www.mhc.tn.gov.in/judis Page 12 of 30 A.S.No.378 of 2014 Plaint averments, she was aware that the sisters and brother had sold the property to the first Defendant/Appellant. As per the contention of the first Defendant in the written statement, the Power of Attorney document was executed by Abirami on 28.07.2008 as it had all the necessary legal characteristics and trappings of a document. Believing the conduct of Baskaran, the first Defendant/Appellant had purchased the property. Therefore, the first Defendant sought to assert his right against the Plaintiffs for damages. Only after the death of Baskaran, on behalf of her sister Abirami, second plaintiff, the first plaintiff had instituted the present suit with the motive to extract money. She had been silent when she had been retaining her relationship with other sisters and sisters' family. She had wantonly not impleaded the other sisters viz., Hemavathi and Sharmila and also the Legal Heir of Baskaran. The first Plaintiff is also criminally liable for forgery and fraud as she remained silent during the life time of Baskaran.
8. The entire deposition in the cross-examination gives a presumption that the first Plaintiff is in the know of the things which she conspires with the legal heirs of her brother and also her sisters. Therefore, the finding and grant of decree by the learned Principal District Judge in O.S.No.189 of 2010 is illegal and perverse. The Suit had been instituted on https://www.mhc.tn.gov.in/judis Page 13 of 30 A.S.No.378 of 2014 behalf of Abirami/second plaintiff, who renounced the worldly life and became a Sanyasini and living an ascetic life in Sarada Ashram. The first Plaintiff/Padmavathy had instituted the Suit only for the share of Abirami by obtaining Power of Attorney deed from a person who had renounced the worldly life, thereby giving a cause of action to a criminal case against the Plaintiffs for their collusion and fraud played on the first Defendant/Appellant, who had believed the brother of the Plaintiffs and registered Power of Attorney, purchased the suit property in good faith. Therefore, re-agitating the partition suit that was already decreed in O.S.No.151 of 1996 is illegal and unlawful. Therefore, he seeks to set aside the Judgment in favour of the Plaintiffs and to dismiss the Suit.
9. The learned Counsel for the Appellant invited the attention of this Court to the Power of Attorney deed executed by the second Plaintiff in favour of the first Plaintiff under Ex.A-3, which is extracted hereunder:
bghJ mjpfhu Mtzk;
“flY}u; khtl;lk;. flY}u; tl;lk;. flY}u; JiwKfk;. Rpthde;jg[uk;, bt';fl;lhr;rhup bjU. be/ 1 y; trpj;J te;J jw;fhyk; nkw;Ft';f khepyk;. bfhy;fj;jh 76. j!;nd!;tu;/ rhujh klj;jpy; trpf;Fk; fzgjp mtu;fspd; Fkhuj;jp mgpuhkp Mfpa ehd; rk;kjpj;J vGjpf; bfhLj;j bghJ mjpfhu Mtzk;/ https://www.mhc.tn.gov.in/judis Page 14 of 30 A.S.No.378 of 2014 vd;dbtd;why;;. vdfF brhe;jkhd kw;Wk; vd; FLk;g brhj;jpy; vd; ghfj;jpy; tuf;Toa jkpH;ehL kw;Wk; g[Jr;nrup khepy';fspy; cs;s mira[k; kw;Wk; mirah brhj;Jf;fis vd;dhy; mt;tg;nghJ neupy; brd;W guhkupff; Koahj fhuzj;jpdhYk;. tpwg; id rk;ke;jg;gl;l fhupa';fis ehnd neupy; ,Ue;J bra;a ,ayhjjhy; ehd; j';fis vdJ Kftuhf epakdk; bra;J fPHf; f; z;lthW mjpfhuk; bfhLj;Js;nsd;/”
10. According to the Appellant/first Defendant, the power of attorney executed by the second plaintiff, mentioned above, is against the concept of renouncing the worldly life. A person who claims to have renounced the worldly life had imposed the condition that she has to maintain the decorum.
11. The learned Counsel for the Appellant also submitted that the Plaintiffs cannot be permitted to have advantage of their own fraud and cheating. The offence was committed by the Plaintiff's deceased brother and two other sisters on the first Defendant. While so, decreeing the Suit amounts to permitting the Plaintiffs to take advantage of their own fraud and cheating and other offence committed by them on the first Defendant, which cannot be accepted in equity. The Plaintiffs had cleverly chosen to leave out the deceased brother's legal heirs and other sisters who had sold the property in order to avoid the criminal prosecution for the offence committed by them https://www.mhc.tn.gov.in/judis Page 15 of 30 A.S.No.378 of 2014 against the first Defendant. If at all the Plaintiffs wanted to get a decree, the Plaintiffs ought to have impleaded the sisters and the legal heirs of the deceased brother as a necessary party so that the Court could have appreciated the fact which transpired while selling the property to the first Defendant. The Plaintiff had cleverly, by design, avoided such things and attempted to extract money by filing the suit. The first Defendant/Appellant is a bona-fide purchaser having purchased the suit property for a valuable sale consideration and it has to be protected by this Court. Therefore, the learned Counsel for the Appellant/first Defendant seeks to dismiss the Suit and allow the appeal.
12. Per contra, the learned Counsel for the Respondents 1 and 2/Plaintiffs by way of reply submitted that the relationship of the parties to the present suit had been admitted by the Plaintiffs. At the same time, the learned Counsel for the Respondents/Plaintiffs invited the attention of this Court to the averments in the written statement, which is extracted hereunder:
“3. On the own showing of the Plaintiffs suit properties having been alienated and were possessed of originally by this Defendant and since later are possessed of by the 2nd Defendant herein as the purchaser from this Defendant, the Plaintiffs are not entitled to invoke Section 37 (2) of the Court Fees Act and affix fixed court fees. The Plaintiffs ought to have valued and affixed ad-valorem court fees under Section 37 (1) of the Court Fees Act. Hence the Suit is not properly valued for the purpose of https://www.mhc.tn.gov.in/judis Page 16 of 30 A.S.No.378 of 2014 the Court Fees and the jurisdiction.
4. On the own showing of the Plaintiffs their deceased brother Baskaran and their alleged sister Abirami who is alleged to have been leading an ascetic life in Sri Ramakrishna Mutt are guilty of impersonation, cheating, forgery, creating bogus documents, fraud and criminal conspiracy. This Defendant has learnt now that the so-called impersonator, impersonating the real sister Abirami is Archana who is none other than the maternal uncle's daughter of Plaintiffs and their brother and two other sisters. The brother and sisters involved in the suit are the issues of Ganapathy and Mariammal and Mariammal's younger brother is Samikkannu, whose daughter is Archana the impersonator. It is quite evident that the brother and sisters involved in the Suit are guilty of above offences in view of the fact, that the impersonator Archana has produced as her I.D. Proof, the Ration Card with reference to the brother and sisters' parents home for the registration of power deed dated 28.07.2008 so as the document to be believed to have been executed by G.Abirami in favour o her brother Baskaran since deceased. Hence under the facts and circumstances above stated the Plaintiffs cannot be heard to deny their involvement in and knowledge of the above stated offences.”
13. The learned Counsel for the Respondents 1 and 2/Plaintiffs invited the attention of this Court to Ex.B-2 to show that the first Defendant ought not to have sold the property to second Defendant. The first Plaintiff had not filed the suit taking advantage of the second Plaintiff renouncing the worldly life. However, Baskaran, brother of the respondents 1 and https://www.mhc.tn.gov.in/judis Page 17 of 30 A.S.No.378 of 2014 2/Plaintiffs sold the property by executing the Power of Attorney deed dated 28.07.2008. The first Plaintiff was not aware of this fact. The second Plaintiff had 1/5 share in the B' schedule property. However, by fabricating documents Baskaran had sold the property to first Defendant, who in turn clandestinely sold the suit property to the second Defendant to wriggle out of the legal clutches. While so, the first plaintiff cannot be said to have indulged in cheating. In fact, Ex.A-2, power of attorney said to have been executed by Abirami in favour of deceased Baskaran is questioned by the first Defendant/Appellant by filing a criminal complaint. On coming to know about the criminal complaint, the respondents 1 and 2/Plaintiffs along with Archana, have filed Criminal Original Petition No. 22779 of 2011 seeking to quash the FIR . The fact remains that after the respondents 1 and 2/Plaintiffs instituted the present suit in O.S. No. 189 of 2010, the first Defendant claiming himself to be a bona fide purchaser has given the criminal complaint based on which the case in Cr.No.46 of 2011 was registered on the file of Inspector of Police, District Crime Branch, Cuddalore District. Therefore, it is submitted that the first Defendant/Appellant cannot be said to be a bona fide purchaser and he has purchased the property without verifying the title of Baskaran. It is also stated that Baskaran cannot be the exclusive owner of the property and the power of attorney based on which the property was sold to the first https://www.mhc.tn.gov.in/judis Page 18 of 30 A.S.No.378 of 2014 Defendant/Appellant is forged. Therefore, the respondents 1 and 2/Plaintiffs are entitled to a decree as prayed for. The trial court, on appreciation of the oral and documentary evidence, has rightly passed a preliminary decree and it does not call for any interference by this Court.
14. The learned Counsel for the Respondents 1 and 2/Plaintiffs further submitted that as per Order VII of the Code of Civil Procedure, the Plaintiffs have to institute the suit for the whole of the claim and for all the reliefs that are available to them. While so, the suit, as filed by the respondents 1 and 2/Plaintiffs is maintainable. In order to buttress this submission, the learned Counsel placed reliance on the following decision in AIR 1951 SC 177 [Firm Srinivas Ram Kumar -vs- Mahabir Prasad and Others] wherein in paragraph No.9 it has been held as under:
9.As regards the other point, however, we are of the opinion that the decision of the trial court was right and that the High Court took an undoubtedly rigid and technical view in reversing this part of the decree of the Subordinate Judge. It is true that it was no part of the plaintiff's case as made in the plaint that the sum of Rs. 30,000 was advanced by way of loan to the Defendants second party. But it was certainly open to the plaintiff to make an alternative case to that effect and make a prayer in the alternative for a decree for money even if the allegations of the money being paid in pursuance of a contract of sale could not be established by evidence. The fact that such a prayer would have been inconsistent with the other prayer is not really material. A plaintiff may rely upon different rights alternatively and there is nothing in the Civil Procedure Code to prevent a party from making two or more inconsistent sets of allegations and claiming relief thereunder in the alternative. The question, however, arises whether, in https://www.mhc.tn.gov.in/judis Page 19 of 30 A.S.No.378 of 2014 the absence of any such alternative case in the plaint it is open to the court to give him relief on that basis. The rule undoubtedly is that the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the Defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit, there would be nothing improper in giving the plaintiff a decree upon the case which the Defendant himself makes. A demand of the plaintiff based on the Defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the Defendant in his pleadings.
In such circumstances, when no injustice can possibly result to the Defendant, it may not be proper to drive the plaintiff to a separate suit. As an illustration of this principle, reference may be made to the pronounce- ment of the Judicial Committee in Babu Raja Mohan Manucha v. Babu Manzoor (1). This appeal arose out of a suit commenced by the plaintiff Appellant to enforce a mortgage security. The plea of the Defendant was that the mortgage was void. This plea was given effect to by both the lower 'courts as well as by the Privy Council. But the Privy Council held that it was open in such circumstances to the plaintiff to repudiate the transaction altogether and claim a relief outside it in the form of restitution under section 65 'of the Indian Contract Act. Although no such alternative claim was made in the plaint, the Privy Council allowed it to be advanced and gave a decree on the ground that the respondent could not be prejudiced by such a claim at all and the matter ought not to be left to a separate suit. It may be noted that this relief was allowed to the Appellant even though the appeal was heard ex parte in the absence of the respondent.”
15. The learned Counsel for the Respondents/Plaintiffs also relied on the ruling of the Hon'ble Supreme Court in AIR 1963 SC 1917 [Gurbaksh Singh -vs- Nikka Singh and another] wherein it has been held as under:
“(A) Civil Procedure Code (5 of 1908), Section 100, Section 101 – Bona fide purchase in good faith – Finding not based on evidence – Impact of Section 41 T.P. Act also not consider by lower appellate Court – Finding cannot bind the High Court in Second Appeal. https://www.mhc.tn.gov.in/judis Page 20 of 30 A.S.No.378 of 2014 Transfer of Property Act (4 of 1882), Section 41.
(B) Transfer of Property Act (4 of 1882), Section 41 – Defence in vendor's title known to the purchaser – Purchase cannot be held to be one in good faith.
Section 41 is an exception to the general rule that a person cannot confer a better than he has. Being an exception the onus certainly is on the transferee to show that the transferor was the ostensible owner of the property and that he had, after taking reasonable care to ascertain that the transferor had power to make the transfer, acted in good faith.
Where the facts establish beyond doubt that the purchaser had the knowledge that the title of his transferor was in dispute and he had taken a risk in purchasing the same it is not possible to hold that he had purchased the property in good faith.”
16. The learned Counsel for the Respondents/Plaintiffs further relied on the admission made by the first Defendant in the written statement which is extracted as under:
“4. On the own showing of the Plaintiffs their deceased brother Baskaran and their alleged sister Abirami who is alleged to have been leading an ascetic life in Sri Ramakrishna Mutt are guilty of impersonation, cheating, forgery, creating bogus documents, fraud and criminal conspiracy. This Defendant has learnt now that the so-called impersonator, impersonating the real sister Abirami is Archana who is none other than the maternal uncle's daughter of Plaintiffs and their brother and two other sisters. The brother and sisters involved in the suit are the issues of Ganapathy and Mariammal and Mariammal's younger brother is Samikkannu, whose daugther is Archana the impersonator. It is quite eident that the brother and sisters involved in the suit are guilty of above offences in view of the fact, that the impersonator Archana has produced as her I.D. Proof, the Ration Card with reference to the brother and sisters' paternal home for the registration of power deed dated 28.07.2008 so as the document to be believed to have been executed by G.Abirami in favour of her brother Baskaran since deceased. Hence, under the facts and circumstances above stated the Plaintiffs cannot be heard to deny their involvement in and knowledge of the above stated offences.”
17. By pointing out the above, it is stated that the claim of the first https://www.mhc.tn.gov.in/judis Page 21 of 30 A.S.No.378 of 2014 Defendant that he is the purchaser in good faith cannot be accepted in the light of the averments in paragraph No.4 of the written statement. Further, even though the Plaintiffs had sought several reliefs, the learned Principal District Judge, Cuddalore had moulded the relief on proper appreciation of evidence. The appeal by the first Defendant is not at all maintainable in the light of the above, particularly in the light of the contents in the written statement. Therefore, the learned Counsel for the Respondents 1 and 2/Plaintiffs sought for dismissal of the appeal.
18. On appreciation of the above rival submissions, the following issues emerge for consideration in this appeal and they are:-
(i) Whether the first Defendant/Appellant can be regarded as a bona fide purchaser of the suit property from Baskaran, deceased brother of the respondents 1 and 2/Plaintiffs?
(ii) Whether the relief sought for in the suit is not hit by the provisions of Order II Rule 3 of CPC?
(iii) Whether the suit is liable to be dismissed for non-joinder of the legal heirs of deceased Baskaran as well as the sisters of the respondents 1 and 2/Plaintiffs as parties?
https://www.mhc.tn.gov.in/judis Page 22 of 30 A.S.No.378 of 2014
19. Issue No.(i) – Admittedly, the property set out in the plaint in the present suit in O.S. No. 189 of 2010 is the one obtained by the second plaintiff through a compromise decree passed in O.S. No. 151 of 1996. It is also an admitted fact that the compromise decree passed in O.S. No. 151 of 1996 has become final and the shares allotted to the parties to the suit in O.S. No. 151 of 1996 have been taken possession of and is in enjoyment by the respective sharers. It is also to be mentioned that the earlier suit in O.S. No. 151 of 1996 was filed by the respondents 1 and 2 in this appeal against their parents, brother and sisters and as mentioned above, the suit ended in a compromise. Therefore, the fact that the property described in the present suit in O.S. No. 189 of 2010 was obtained by the second plaintiff by virtue of a compromise decree passed in the earlier suit in O.S. No. 151 of 1996 is borne out of records and it is also not disputed by the parties herein.
19.1. According to the Appellant/first Defendant, he is a purchaser of the suit property for valuable sale consideration from Baskaran, brother of the respondents 1 and 2 in this appeal. It is also stated that Baskaran is the power of attorney agent for and on behalf of the second plaintiff/second respondent herein and on the strength of the same, the first Defendant purchased the suit property. Now, it is asserted by the Plaintiffs that the second plaintiff has https://www.mhc.tn.gov.in/judis Page 23 of 30 A.S.No.378 of 2014 never executed any power of attorney in favour of her brother Baskaran and therefore, the present suit is filed.
19.2. As regards the impersonation, even in the written statement, in para No.4, the first Defendant has gone on record by stating that he has learnt that the impersonator is none other than the maternal uncle's daughter of Abirami, by name Archana. Thus, it is quite clear that Abirami has not executed a power of attorney in favour of Baskaran, since deceased. The first Defendant/ Appellant also set the criminal law in motion against the so-called impersonators. When the fact that the second plaintiff has not executed any power of attorney is established, then the purchase of the suit property by the first Defendant cannot be valid or it will confer him any title. As rightly pointed out by the trial court, it is for the first Defendant to work out his remedy in the criminal forum which he had already set in motion. The above discussion also makes it clear that the plea that the first Defendant/Appellant that he purchased the suit property in good faith for valuable sale consideration cannot be countenanced. The trial court also, in para No.13 and 14 of the judgment had given a detailed account of this submission made on behalf of the first Defendant/Appellant and held that he cannot assert any title over the suit property. Consequently, the sale made by the first Defendant in https://www.mhc.tn.gov.in/judis Page 24 of 30 A.S.No.378 of 2014 favour of the second Defendant is also not valid. It is to be mentioned here that the suit as well as the present appeal are only contested by the first Defendant. The second Defendant, in whose name the suit property presently stands, did not contest the present appeal for the reasons best known to second Defendant only. Inspite of notice sent, the third respondent/second Defendant did not appear before this Court to contest this appeal. Therefore also, this Court is of the view that the trial court is right in holding that the first Defendant/Appellant cannot be regarded as a bona fide purchaser of the suit property. This issue is accordingly answered.
20. Issue No.(ii) – It is vehemently contended on behalf of the first Defendant/Appellant that multiple prayers are sought for in a single suit and it is not maintainable as such. According to the first Defendant/Appellant, the joinder of various cause of action in one suit is legally impermissible and therefore, the suit, as filed by the Plaintiffs, is not maintainable. This contention of the first Defendant/Appellant cannot be countenanced. As per Order II Rule 2 (2) of CPC, the plaintiff is entitled to institute a suit by including all the claim, which he is entitled to make in respect of the cause of action. In fact, if the plaintiff fails to include all the reliefs arising out of the same cause of action in a single suit, then he or she cannot be permitted to file https://www.mhc.tn.gov.in/judis Page 25 of 30 A.S.No.378 of 2014 a separate suit for the same cause of action. This was the ratio laid down by the Honourable Supreme Court in the case of (Van Vibhag Karamchari Griha Nirman Sahkari Sanstha Maryadit (Registered) vs. Ramesh Chander and others reported in (2010) 14 Supreme Court Cases 596. Useful reference can be made to the observations in that judgment in para No.30, which reads as follows:-
“30. This Court, is therefore, of the opinion that the Appellant had the cause of action to sue for specific performance in 1991 but he omitted to do so. Having done that, he should not be allowed to sue on that cause of action which he omitted to include when he filed his suit. This Court may consider its omission to include the relief of the specific performance in the suit which it filed when it had cause of action to sue for specific performance as relinquishment of that part of its claim. The suit filed by the Appellant, therefore, is hit by the provisions of Order II Rule 2 of the Civil Procedure Code."
20.1. Thus, it is evident that at the time of institution of the suit, all the relief (s) which the plaintiff has, have to be claimed without any omission. If the plaintiff who can sue for a relief in a suit, cannot be later permitted to file a separate suit for the same cause of action. In the present case, the plaintiff has claimed all the relief which she is legally entitled to. While so, the defence raised by the first Defendant/Appellant that multiple reliefs have been sought for in a single suit and therefore the suit is not maintainable, cannot be accepted. Therefore, this issue is also answered in favour of the Plaintiffs and https://www.mhc.tn.gov.in/judis Page 26 of 30 A.S.No.378 of 2014 against the Defendants.
21. Issue No.(iii) – As regards the plea of non-joinder of parties raised by the first Defendant/Appellant, it is needless to mention that the property described in the plaint has been exclusively allotted to the second plaintiff herein in the compromise decree passed in O.S. No. 151 of 1996. Except the second plaintiff, no one else has any right, interest or title in such property.
Even though the second plaintiff has renounced the World by taking sanyasam, it will not be a ground to say that she had lost her right or her right if any, in the property extinguished. Even after sanyasam or renouncing the World, still, the second respondent/second plaintiff is the legal and lawful owner of the property described in the suit property. While so, her sister or brother cannot have any say in the property exclusively belonged to her. In such circumstances, impleading the sisters or the legal heirs of Baskaran cannot in any way result in determining the real issues involved in the suit. The issues involved in the suit can very well be determined even in the absence of the sisters or legal heirs of Baskaran, brother of the second plaintiff. Therefore, this Court is of the view that the suit, as filed by the Plaintiffs, is maintainable. The suit is not hit by misjoinder of parties. The trial court also, in para No.8 to 10 of the judgment, has elaborately dealt with https://www.mhc.tn.gov.in/judis Page 27 of 30 A.S.No.378 of 2014 the issue to conclude that after the compromise decree, the parties are in separate possession of the properties, which are the subject matter in the earlier suit in O.S. No. 151 of 1996. The trial court also referred to the deposition of the first Defendant to the effect that he had knowledge about the respective shares of the vendor Baskaran and his sisters and the fact that the property in question belongs to the second plaintiff herein exclusively. While so, the plea that the suit is hit by the principles of non-joinder of parties is superfluous and it cannot be countenanced. Accordingly, this Court holds that the suit is not hit by the plea of non-joinder of necessry parties and this issue is answered accordingly.
In the result, this Appeal Suit is dismissed. The Judgment and Preliminary Decree dated 27.11.2012 passed in O.S.No.189 of 2010 on the file of the learned Principal District Judge, Cuddalore District is confirmed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
25.11.2022
Index :Yes/No
Internet : Yes/No
srm/dh
https://www.mhc.tn.gov.in/judis
Page 28 of 30
A.S.No.378 of 2014
To
1.The First Additional District Judge,
Coimbatore.
2.The Section Officer,
Vernacular Records,
Madras High Court.
https://www.mhc.tn.gov.in/judis
Page 29 of 30
A.S.No.378 of 2014
SATHI KUMAR SUKUMARA KURUP, J.
dh/srm
Judgment made in
A.S.No.378 of 2014
25.11.2022
https://www.mhc.tn.gov.in/judis
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