Madras High Court
A.Rayappan vs P.Anthony Pushparaj on 24 June, 2013
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 24.06.2013
Coram:
THE HON'BLE MR. JUSTICE P.R.SHIVAKUMAR
S.A. Nos.711 and 792 of 2012
and
M.P.Nos.1 + 1 of 2012
S.A.No.711 of 2012
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A.Rayappan .. Appellant
..vs..
P.Anthony Pushparaj .. Respondent
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree passed in A.S. No.56 of 2010 by the Principal Subordinate Judge, Virudhachalam dated 11.10.2011 confirming the Judgment and Decree dated 14.08.2009 made in O.S.No.567 of 2000 by the Principal District Munsif, Virudhachalam.
S.A.No.792 of 2012
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A.Rayappan .. Appellant
..vs..
1. Sowriammal
2. P.Anthony Pushparaj .. Respondent
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree passed in A.S. No.77 of 2010 by the Principal Subordinate Judge, Virudhachalam dated 11.10.2011 confirming the Judgment and Decree dated 14.08.2009 made in O.S.No.925 of 2004 by the Principal District Munsif, Virudhachalam.
For Appellant in ... Ms.V.Saradhadevi
both appeals for Mr.K.Sakthivel
For Respondent ... Mr.V.Raghavachari
in S.A.No.711/2012
J U D G M E N T
Rayappan is the sole appellant in S.A.No.711/2012 and also in S.A.No.792/2012. Anthony Pushparaj is the sole respondent in S.A.No.711/2012. His mother Sowriammal figures as the first respondent and he figures as the second respondent in S.A.No.792/2012. As one and the same person figures as appellant in both the second appeals, for the sake of convenience, he (Rayappan) shall be referred to as appellant. Whereas Sowriammal and Anthony Pushparaj shall be referred to as respondents 1 and 2 respectively.
2. The second respondent Anthony Pushparaj filed a suit against the appellant Rayappan in O.S.No.567/2000 on the file of the learned Principal District Munsif, Vriddhachalam praying for a declaration of his absolute title in respect of the suit property and for a consequential injunction restraining the appellant herein from interfering with his peaceful possession and enjoyment of the suit property. Rayappan, the appellant herein filed a suit in O.S.No.925/2004 on the file of the same court against the respondents 1 and 2, namely Sowriammal and Anthony Pushparaj, for a declaration that he was the absolute owner of the suit property and for the recovery of possession of the suit property from the respondents. Both the suits were tried together and by a common judgment dated 14.08.2009, the learned trial judge, namely the Principal District Munsif, Vriddhachalam, dismissed the suit filed by the appellant, namely O.S.No.925/2004 and decreed the suit filed by the second respondent Anthony Pushparaj, namely O.S.No.567/2000 for the reliefs of declaration and injunction.
3. As against the decree granting the reliefs of declaration and injunction made in O.S.No.567/2000 in favour of the second respondent herein, the appellant preferred an appeal in A.S.No.56/2010 on the file of the learned Principal Subordinate Judge, Vriddhachalam. Similarly, the decree of the trial court dismissing the appellant's suit O.S.No.925/2004 was challenged by the appellant before the learned Principal Subordinate Judge, Vriddhachalam in A.S.No.77/2010. The learned Principal Subordinate Judge, Vriddhachalam (lower appellate judge) after hearing, dismissed both the appeals by a common judgment dated 11.10.2011 confirming the decrees passed by the trial court in the respective suits. Questioning the correctness of the said common judgment pronounced and the decrees passed in A.S.No.56/2010 and A.S.No.77/2010 on the file of the lower appellate court, the appellant has preferred the present second appeals S.A.No.711/2012 and 792/2012 respectively on various grounds set out in the respective memorandum of grounds of second appeal.
4. One Periyanayagam was the husband of the first respondent Sowriammal and their son is the second respondent Anthony Pushparaj. Admittedly, the said Periyanayagam was the original owner of the property, which is the subject matter of both the suits from which the second appeals have arisen. The said properties have been described in two items in both the plaints. An extent of 0.95 acre equivalent to 0.38.5 hectare comprised in S.No.324/1B1 of Kammapuram village, Kammapuram Sub Registration District, Vriddhachalam Taluk and an extent of 0.85 acre equivalent to 0.34.5 hectare comprised in S.No.324/4C of the same village have been described to be the first and second items of the suit property in both the suits. There is no dispute that the said property originally belonged to Periyanayagam, the husband of the first respondent/father of the second respondent. According to the appellant, the said Periyanayagam executed a sale deed on 10.07.1995 on his behalf and also on behalf of the second respondent, who was a minor at that point of time selling the suit properties to the appellant for a sum of Rs.21,720/-, but, after such execution, he refused to come for the registration of the same, which necessitated the appellant to approach the Registering Authority for compulsory registration of the same.
5. It is the further contention of the appellant that when the document was presented before the Sub Registrar, Kammapuram for compulsory registration by the appellant stating that the executant of the sale deed refused to come to the office of the Registering Authority for registration, notice was sent to the said Periyanayagam. After service of notice/summons by the Registering Authority, namely the Sub Registrar, Kammapuram, Periyanayagam appeared before the Sub Registrar and denied having executed the said document. Consequently, the Sub Registrar, Kammapuram refused registration, pursuant to which, the document was referred to the District Registrar under Section 73 of the Indian Registration Act. Even before the District Registrar, Periyanayagam did not admit the execution of the document and during pendency of the proceedings before the District Registrar, Periyanayagam passed away. After the death of Periyanayagam on 04.11.1996, his wife, namely the first respondent Sowriammal, was impleaded in the proceedings before the District Registrar in A.P.No.5/1995. The first respondent Sowriammal denied the contention of the appellant that the document dated 10.07.1995 was executed by her husband Periyanayagam and on the other hand, she contended that the signature found in the said document was not that of her husband. Meanwhile, the said Periyanayagam had executed a Gift Settlement Deed dated 02.06.1995 in favour of his son, namely the second respondent Anthony Pushparaj showing his mother, namely the first respondent, as his guardian and got it registered on 25.09.1995 as document No.867/1995 in the office of the Sub Registrar, Kammapuram. Only after the registration of the said Settlement Deed, the appellant presented the sale deed dated 10.07.1995 for registration. Such presentation for registration was made on 7.11.1995. During the pendency of the appeal proceedings before the District Registrar in A.P.No.5/1995, the second respondent Anthony Pushparaj attained majority and he filed O.S.No.567/2000 on the file of the Principal District Munsif, Vriddhachalam for declaration of his title in respect of the suit properties on the basis of the said Settlement Deed and also for a permanent injunction against the appellant. Despite the fact that such a suit was filed by the second respondent and a competent civil court was seized of the matter, the appellant pursued the appeal before the District Registrar and obtained an order on 05.05.2013 for compulsory registration of the sale deed dated 10.07.1995 allegedly executed by Periyanayagam on his own behalf and as guardian of the second respondent. Based on such an order of the District Registrar dated 05.05.2003, the sale deed dated 10.07.1995 came to be registered as document No.460/2003 on the file of the Sub Registrar, Kammapuram. Only after the registration of the said document, the appellant chose to file O.S.No.925/2004 on the file of the Principal District Munsif, Vriddhachalam for a declaration of his title based on the said sale deed and for recovery of possession of the suit property from the respondents.
6. The learned trial judge, namely the Principal District Munsif, Vriddhachalam, after trial, dismissed the suit O.S.No.925/2004 filed by the appellant and decreed the suit O.S.No.567/2000 filed by the second respondent. The appellant proved to be unsuccessful even before the lower appellate court, namely the court of the Principal Subordinate Judge, Vriddhachalam where he preferred appeals in A.S.No.56/2010 and A.S.No.77/2010 against the decrees of the trial court made in O.S.No.567/2000 and O.S.No.925/2004 respectively. Both the appeals were dismissed by the lower appellate court confirming the decrees passed in the above said suits by the trial court. As against the concurrent judgments, the appellant has come forward with the present second appeals on various grounds set out in the memoranda of second appeals.
7. Notice before admission was issued and the respondents have entered appearance. The arguments advanced by Ms.V.Saradhadevi, learned counsel representing Mr.K.Sakthivel, counsel on record for the appellant in both the second appeals and by Mr.V.Raghavachari, learned counsel for the respondent in S.A.No.711/2012 were heard. The documents available on record were also perused.
8. An appeal from an appellate decree of a court subordinate to the High Court shall lie to the High Court only on a substantial question of law. The party who files the second appeal against the decree of the lower appellate court, should precisely formulate the substantial question/questions of law and incorporate the same in the grounds of second appeal. If the High Court admits the appeal, it shall identify and formulate the correct substantial questions of law, based on which the second appeal is admitted. Unless the appellant is able to show that the second appeal involves a substantial question of law or more than one substantial question of law, the appeal shall be dismissed on the ground that no substantial question of law has been shown to have arisen in the second appeal. In this regard, it shall be helpful to reproduce Section 100 CPC for better appreciation:
" 100. Second appeal (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question :"
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.
Sub clauses (3) and (4) will amplify the position in this regard. In the light of the above said provisions and as pointed out supra, the High Court can entertain the second appeal to be heard on merits, only if it is satisfied that the appeal involves a substantial question of law. Otherwise, the same shall be dismissed at the stage of admission itself. Even the identification and formulation of the substantial question of law/substantial questions of law at the time of admission shall not be final and the respondent, on appearance, as found in sub clause (5) of section 100 CPC, shall have the right to argue that the case does not involve such a substantial question of law a. Even, if a substantial question of law is involved in the second appeal, unless the decision of the same shall be in favour of the appellant and such decision shall have the effect of reversing the decree of the lower appellate court, the appellant cannot succeed and the High Court shall not be justified in interfering with the decree passed by the lower appellate court.
9. To say a question of law is a substantial question of law that has arisen in the second appeal, it must be of such a nature that the decision of the same shall have a bearing on the ultimate result of the lis. While making it clear that a second appeal shall be entertained only on a substantial question of law, it must be borne in mind that the term substantial question of law does not mean that any question of fact can be camouflaged into a question of law or that a simple question of law, which has already been authoritatively answered by the High Court and the Supreme Court, can also be viewed as substantial questions of law. The above said observation should not be taken to mean that if the lower appellate court has decided a question of law wrongly by giving a wrong interpretation to a statutory provision or by deviating from the principles of law enunciated in the precedent or by misquoting and misapplying such principles would be ignored by the High Court. When such a mistaken interpretation, which is against the law made by the Legislature and the law declared by the precedence, is made by the lower appellate court, the question whether such a decision based on such interpretation is correct or not, shall be accepted as a substantial question of law. Suppose an appellate court, subordinate to the High Court, makes a decision without referring to the provision of law enacted by the Legislature or without following the established precedents, whether such a decision is correct or not? shall be accepted as a substantial question of law. There may be cases, in which statutory provisions as well as the principles of law, would have been correctly understood and correctly stated by the court below, but at the same time, while applying the provisions and the principles of law to the given set of facts such court might have committed an error by non-consideration of material evidence or by taking into consideration an inadmissible or irrelevant piece of evidence. Such a finding shall be termed perverse. There may be cases, in which, the appreciation of evidence would have resulted in a perverse finding, if no reasonable person based on the given set of facts and evidence would have arrived at such a decision. When the findings on questions of fact or mixed questions of law on facts are challenged as perverse, they can be successfully projected as substantial questions of law. But care should be taken that pure questions of fact should not be projected as perverse and camouflaged as substantial question of law.
10. Keeping in mind the principles of law discussed above, the points urged on both sides in these second appeals have to be considered. The appellant has cited the very same questions, which are 5 in number as substantial questions of law involved in both the appeals. With all the mistakes found therein, the substantial questions of law projected by the appellant are reproduced hereunder:
" a) Whether the courts below is right in decreeing the suit of respondents when the appellant got his sale deed under Ex.B1 was compulsorily registered by the Registrar?
b) When Mrs. Sowriammal denied the signature of Periyanayagam in Ex.B1 since it is in Tamil, Whether the Courts below are right in decreeing the suit of the respondents who relies on Ex.A1 to prove their title which was also signed in Tamil ?
c) Whether the lower courts are right in decreeing the respondents' suit, when the lower courts have failed to examine the signature of Periyanayagam both in Exs.A1 and B1?
d) Whether the courts below are right in dismissing the suit of the appellant inspite of the fact that Ex.b1 was compulsorily registered by the Registrar ?
e) Whether the Lower courts are right in costing the burden on the appellant to prove the signature of Mr.Periyanayagam in Ex.B1 when the respondents specifically denies the signature and discharge their initial burden ? "
11. Though the above said five questions are sought to be projected as substantial questions of law in so many words (with full of mistakes), the crux of the contention raised on behalf of the appellant is that, since the sale deed relied on by the appellant, which has been exhibited as Ex.B1, had been compulsorily registered by virtue of an order of the District Registrar passed after due enquiry, the courts below should have held that the said document validly effected a transfer of title in respect of the suit properties in favour of the appellant. The appellant has contended further that the respondents failed to prove Ex.A1-Settlement Deed to be genuine; that the settlement deed marked as Ex.A1 was antedated and created for the purpose of defeating the transaction made under Ex.B1-sale deed and that the courts below have failed to consider the same in proper perspective, which led to the dismissal of the suit filed by the appellant and granting of a decree in favour of the second respondent in the suit filed by him. The further contention raised on behalf of the appellant is that the burden of proving the genuineness of the gift settlement deed marked as Ex.A1 and disproving Ex.B1 were on the respondents and the courts below, without considering the fact that the respondents had not discharged their burden of proof indicated above, decreed the suit filed by the second respondent and dismissed the suit filed by the appellant, by erroneously casting the burden of disproving Ex.A1 on the appellant. It is the further contention raised on behalf of the appellant that the compulsory registration of Ex.B1-sale deed based on the order of the District Registrar shall be the prima facie proof of the sale transaction under Ex.B1; that the same shall cause the casting of the burden of disproving Ex.B1 on the respondents and that the evidence adduced on the side of the respondents are not enough to discharge the said burden of proof.
12. So far as Ex.A1-settlement deed is concerned, it is the contention raised on behalf of the appellant that the same was ante dated after the execution of Ex.B1-sale deed to defeat and nullify the transfer effected under Ex.B1. In support of his contention, learned counsel appearing for the appellant drew the attention of the court to the fact that in Ex.A1-settlement deed, date of execution has been noted as 02.06.1995, but it was presented for registration only on 21.09.1995 and registered on 25.09.1995 as document No.867/1995 on the file of the Sub Registrar, Kammapuram. Ex.B1-Sale deed, according to the appellant, came to be executed on 10.07.1995. Pointing out the above said aspect, learned counsel appearing for the appellant would contend that, after having executed Ex.B1-sale deed on 10.07.1995, Periyanayagam wanted to wriggle out of the transaction and executed Ex.A1-settlement deed ante-dating the same by putting a date anterior to the date of Ex.B1 and that the same will be obvious from the fact that the said settlement was presented for registration after a period of two months from the date of Ex.B1-sale deed and 3 = months from the date noted in Ex.A1 as the date of its execution.
13. In this regard, learned counsel for the respondents pointed out the fact that Ex.B1 came to be presented for registration nearly 1 = months after the registration of Ex.A1-settlement deed and that therefore it is more probable that Ex.B1 could have been ante-dated in order to defeat the right conferred on the second respondent under Ex.A1-settlement deed. It is the further contention of the learned counsel for the respondents that though O.S.No.567/2000 came to be filed by the second respondent on the strength of Ex.A1-settlement deed, the appellant, without seeking a reference by the District Registrar to the civil court and without seeking the stay of the proceedings before the District Registrar pending disposal of the suit, chose to proceed with the appeal proceedings before the District Registrar and got Ex.B1-sale deed compulsorily registered and that such an order of the District Registrar and the compulsory registration of the document, shall not take away the jurisdictional power of the court to decide the genuineness and validity of the document. Learned counsel for the respondents has contended further that the very fact that Ex.B1 recites the market value of the property as 90,000/- whereas the sale consideration recited therein is only Rs.21,720/- shall make it clear that the same was created only after the execution of Ex.A1-settlement deed, in which, the market value has been noted as Rs.90,000/-. It is the further contention of the learned counsel for the respondents that, admittedly Periyanayagam was the absolute owner of the suit property before the execution of Ex.A1-settlement deed and that if at all Ex.B1-sale deed came to be executed before the execution of Ex.A1-settlement deed, the appellant would have been content with getting the sale deed executed by Periyanayagam alone as the absolute owner of the property and he would not have chosen to get the sale deed executed by Periyanayagam on his own behalf and on behalf of the second respondent as his guardian, since second respondent did not have any right or title to the properties before the Execution of Ex.A1 settlement deed. Learned counsel for the respondents has contended further that the very fact that the appellant chose to include the name of the second respondent also as one of the vendors, would make it clear that the appellant was very much aware of the settlement made in favour of the second respondent and that the same would show that Ex.A1 was not ante-dated and on the other hand, Ex.B1 alone could have been ante-dated.
14. This court paid its anxious considerations to the above said contentions raised on both sides.
15. It is an admitted fact that the suit properties were the absolute properties of Periyanayagam. His wife, namely the first respondent Sowriammal and son, namely the second respondent Anthony Pushparaj, could not have any title to the same during the life time of Periyanayagam unless the same was conferred by him by way of a valid transfer. Periyanayagam was a Christian and the respondents 1 and 2 are also Christians. The concept of coparcenary is not applicable to them and their properties are governed by Indian Succession Act. Whatever be the source from which they acquired property, they would be held to be the absolute owners with all powers of disposition. No son or daughter of a Christian shall have a right to a share by birth in the properties of the father during his life time. As it is admitted that the suit properties were the absolute properties of Periyanayagam, in the absence of any document executed by Periyanayagam conferring title on second respondent, there shall be no necessity to include the name of the second respondent also as a vendor, when the property was sought to be sold by Periyanayagam.
16. The sale deed relied on by the appellant has been marked as Ex.B1. It is dated 10.07.1995. But, it was presented for registration only on 07.11.1995. According to the appellant, the executant of the document, namely Periyanayagam after executing the said document, refused to come to the office of the Registering Authority for getting it registered, pursuant to which the document was presented by the appellant before the Sub Registrar, Kammapuram for compulsory registration. It is also an admitted fact that on receipt of summon/notice from the Sub Registrar, Periyanayagam appeared before him and denied having executed the document and also disputed his signature found in Ex.B1. Only based on such denial, registration was refused and reference was made to the District Registrar under Section 73 of the Registration Act and the same was taken on file as A.P.No.5/1995. When the matter was pending before the District Registrar, Periyanayagam died on 04.11.1996 and after his death the first respondent Sowriammal was impleaded in the proceedings before the District Registrar, perhaps as a legal representative of Periyanayagam and as guardian of the second respondent. During the pendency of the proceedings before the District Registrar, the second respondent attained majority and in 2000 itself he filed O.S.No.567/2000 on the file of the Principal District Munsif, Vriddhachalam. Even thereafter he was not given any notice in the proceedings pending before the District Registrar and the order came to be passed without even hearing him and without giving an opportunity to him of being heard. Irrespective of the fact that a document is voluntarily registered or compulsorily registered, the parties to the document can very well contend before a competent court, in which the document is produced that such a document was not executed by him or that such a document was not genuine, but forged. In this regard, this court's attention is drawn to the provision found in Section 73 of the Indian Registration Act, wherein the parties seeking compulsory registration is given a right to file a suit in a civil court for a direction for compulsory registration of the document when the District Registrar declines an order for compulsory registration. Though the said provision in explicit terms does not spell out the right of the party suffering an order of compulsory registration to approach the civil court for necessary remedy against the order of compulsory registration, it cannot be interpreted to mean that such a party shall have no remedy. The party aggrieved by an order directing compulsory registration can very well have the remedy by approaching the civil court to have the document set aside or declared null and void.
17. Though the appellant would have succeeded in getting Ex.B1-Sale Deed compulsorily registered, that alone shall not be enough to hold that the second respondent Anthony Pushparaj has lost his title, if any to the suit properties. In fact, the second respondent Anthony Pushparaj was admittedly a minor on the date of execution of Ex.B1-sale deed. When a minor's share or minor's property is to be sold by the guardian, the permission of the court should have been obtained. In this case, though Ex.B1-Sale deed contains a recital that it was executed by Periyanayagam for himself and as guardian of the second respondent Anthony Pushparaj, no permission under the Guardianship and Wards Act was obtained. Any alienation of the property of a minor shall be voidable at the option of the minor and within three years after his attainment of majority he can avoid such transfer. Even in case the transfer has taken place with the permission of the court, the minor on attaining majority within three years thereafter, can file a suit for setting aside such sale.
18. In this case, though Ex.B1 was executed while the second respondent was a minor, the very execution was denied by the person, who was said to have executed the same. Furthermore, the alleged executant of the document died during the pendency of the proceedings before the District Registrar and during the pendency of the proceedings before the District Registrar, the second respondent not only attained majority, but also chose to file a suit based on Ex.A1-settlement deed for a declaration that he was the absolute owner of the suit properties and for an injunction against the appellant not to disturb his peaceful possession and enjoyment of the suit property. Even thereafter the second respondent was not made a party before the District Registrar. As such, it is doubtful whether the order passed by the District Registrar shall be binding upon the second respondent Anthony Pushparaj. Furthermore, Ex.B1-sale deed does not contain any recital as to how the vendors got title, which could be conveyed under Ex.B1. It simply recites that Periyanayagam, the father of the second respondent was executing the said doucment for himself acting on his own behalf and on behalf of the second respondent as his guardian
19. Admittedly, the properties were the absolute properties of Periyanayagam before the execution of Ex.A1-settlement deed. In the absence of Ex.A1-settlement deed, the second respondent Anthony Pushparaj would not have got any right or title in the suit properties during the life time of his father Periyanayagam. If at all Ex.B1-Settlement was executed only after the execution of Ex.B1-sale deed antedating the settlement deed so as to defeat the right of the appellant derived under Ex.B1-sale deed, the second respondent need not have been and could not have been made a party to Ex.B1-sale deed. The very fact that the second respondent has been made a party and has been projected as a joint vendor along with his father will make it clear that the appellant was very much aware of the settlement made under Ex.A1 even on the date on which Ex.B1 came into existence. Therefore, as rightly contended on behalf of the respondents, it is more probable that Ex.B1-sale deed could have been ante-dated in order to defeat the title of the second respondent derives under Ex.A1-settlement deed.
20. There are other materials which will make it obvious that Ex.A2 came to be executed earlier in point of time and Ex.B1-sale deed was brought into existence subsequently. In Ex.A1-settlement deed, the value of the properties settled therein has been noted as Rs.90,000/-. In Ex.B1-sale deed the sale consideration is noted as Rs.21,720/- and the market value of the property has been noted as Rs.90,000/-. In fact the value of the first and second items had been originally noted as Rs.11,463/- and Rs.10,257/- respectively in Ex.B1-sale deed and the total value had been noted as Rs.21,720/-. But the said values have been deleted and the following figures have been substituted.
Market value of the first item : Rs.47,500/-
Market value of the second item : Rs.42,500/-
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Total Rs.90,000/- ---------------
No prudent person will come forward to sell a property worth Rs.90,000/- to a paltry sum of Rs.21,720/-. The correction in the valuation could not have been made at the time of registration, because even in the first page itself the sale consideration and the market value have been noted as Rs.21,720/- and Rs.90,000/- respectively. When a sale deed is sought to be executed by a person acting as a guardian of a minor such a vast difference between the market value and the consideration itself would show the lack of bonafide. A comparison of Ex.A1 and Ex.B1 will show that Ex.B1-sale deed could have been brought into existence only after the execution and registration of Ex.A1-settlement deed and it is more probable that Ex.B1-sale deed could have been antedated taking advantage of the fact that Ex.A1 was presented for registration after 2 = months from the date of its execution. Of course, where gift settlement deed is executed in favour of a family property, the registration of the same at a later point of time can be understood. On the other hand, it is quite improbable that when a sale deed is executed, the registration of the same could have been postponed to a future date unless valid reasons are forthcoming.
21. In this case, the appellant has not come forward with any explanation as to why the sale deed Ex.B1 was not presented immediately after its execution for registration. Ex.B1 is dated 10.07.1995. It was presented for registration only on 07.11.1995. Section 23 of the Registration Act prescribes a period of four months from the date of execution of a document to be presented for registration. It shall be obvious that Ex.B1 came to be presented for registration a couple of days prior to the expiry of four months from the date noted therein as its date of execution. The same will also show that the same would have been antedated. Furthermore, the following recitals are found in Ex.B1 regarding passing of consideration.
VERNACULAR (TAMIL) PORTION DELETED It should also be noted that the said part regarding the agreement to get the balance consideration before the Sub Registrar has been inserted subsequently. Furthermore, it has been recited in Ex.B1 that the possession of the property was handed over to the appellant on the date of Ex.B1-sale deed itself. But the said recital is admitted to be not correct. The appellant himself filed the suit O.S.No.925 of 2004 for recovery of possession. Again it is highly improbable for a vendor to sign the sale deed without receiving the entire sale consideration. As per the recitals found in Ex.B1, only a sum of Rs.11,000/- was paid and balance amount of Rs.10,720/- was agreed to be paid in the presence of the Sub Registrar. Apart from the fact that there is a very big gap between the market value and the sale consideration, the sale consideration quoted in the sale deed was not paid in full.
22. Though the document recites that balance amount of sale consideration of Rs.10,720/- was agreed to be paid before the Sub Registrar at the time of registration, there is no reliable evidence to prove that the said amount was paid. There is also an admission by the appellant, who deposed as DW.1, as follows:
VERNACULAR (TAMIL) PORTION DELETED However he proceeded to state that the balance amount was sent through money order. But the said evidence is without a pleading. It has not been pleaded in the plaint that the balance sale consideration was paid by sending it through money order. The money order receipt has not been produced. There is no clinching evidence to prove that the balance sale consideration was paid. DW.1 himself has admitted that he did not plead in the plaint filed by him in his suit and in the written statement filed by him in the suit filed by the second respondent that he did not take any steps to deposit the balance sale consideration in court. It shall be obvious from the same that the same itself shall be enough to successfully challenge the validity of Ex.B1. All these aspects would go to show that Ex.B1 could not be a genuine document.
23. In any event, the second respondent having become entitled to the suit properties by virtue of Ex.A1, shall not be bound by Ex.B1, more so, when he had chosen to file the suit for declaration and injunction based Ex.A1-settlement deed. The learned counsel appearing for the appellant advanced an argument that Periyanayagam was the owner of the property and Ex.A1-settlement deed came to be executed only after the execution of Ex.B1 in order defeat the sale deed marked as Ex.B1 and wriggle out of the sale transaction. When a pertinent question was put to the learned counsel for the appellant as to why the sale deed came to be executed on behalf of the second respondent also, the learned counsel for the appellant would state that he was made a party to the sale deed, since the property was the ancestral property of Periyanayagam and the second respondent was entitled to a share in it. The said argument is nothing but a result of an after thought. As pointed out supra, the concept of coparcenery is not applicable to Christians and they are governed by Indian Succession Act. Any property held by them either self-acquired or ancestral shall be their absolute property. That being so, in the property of Periyanayagam, his son, namely the second respondent would not have got any right by birth during the life time of Periyanayagam. Hence it is obvious that only after knowing fully well that Ex.A1-settlement deed had been executed in favour of the 2nd respondent, Ex.B1-sale deed was brought into existence. Under Ex.A1, the first respondent was shown to be guardian of the second respondent, who was then a minor. The first respondent was not made to sign Ex.B1 in her capacity as guardian of the second respondent. If all these aspects are taken into consideration, it will lead to a unique conclusion that Ex.B1 was created and brought into existence only to defeat the title of the second respondent derived under Ex.A1.
24. The courts below, on proper appreciation of facts, have rendered a concurrent finding that Ex.B1 was not a genuine one and the same was brought into existence to defeat the rights of the second respondent and that the gift settlement made under Ex.A1 and the title derived by the second respondent under Ex.A1 stood established. The well considered concurrent findings of the courts below does not warrant any interference. The questions formulated by the appellant and incorporated in the Memoranda of appeals are not in fact substantial questions of law involved in the second appeals and the second appeals filed against the concurrent judgments of the courts below deserve to be dismissed with cost.
Accordingly, both the second appeals are dismissed with cost. Consequently, connected miscellaneous petitions are closed.
asr To
1. The Principal Subordinate Judge, Virudhachalam
2. The Principal District Munsif Virudhachalam