Madras High Court
The Nullivilai Carmel Matha vs Gabriel on 2 December, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02/12/2008
CORAM
THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYAN
S.A.(MD)No.869 of 2000
The Nullivilai Carmel Matha
Parish represented by
(a) The Vice-President of
the Parish Council,
Arulsamy, S/o Ubald,
(b) The Secretary of the
Parish Council, Thomas .. Plaintiff /Respondent /
Appellant
Vs.
1.Gabriel
2.Stephen
3.Michael
4.Cheria Pushpam
5.Helan Mary
6.Maria Rejin Ammal
7.Xaviour Mary .. Defendants/Appellants/
Respondents
PRAYER
This Second Appeal has been filed under Section 100 of CPC, against the
judgment and decree of the learned Subordinate Judge, Padmanabhapuram in
A.S.No.3 of 1992 dated 12.07.1999 pursuant to the judgment and decree of the
Principal District Munsif, Padmanabhapuram in O.S.No.507 of 1987 dated
06.12.1991.
!For Appellant ...Mr.K.Sreekumaran Nair, Advocate
^For Respondents ...Mr.R.Vijayakumar, Advocate
:JUDGMENT
This Second Appeal has been preferred against the decree and judgment in A.S.No.3 of 1992, on the file of the Court of Subordinate Judge, Padmanabhapuram. The unsuccessful plaintiffs before the first appellate Court are the appellants herein. The plaintiffs have filed a suit for specific performance of contract of sale on the basis of an oral agreement of sale in respect of plaint schedule property.
2.The averments in the plaint sans irrelevant particulars are as follows:-
Nullivilai Oor is a small hamlet in Eraniel Village, wherein there is a Roman Catholic Church called the Carmel Matha Church, and the affairs of the Church and Parish are being managed by a Council, called the Parish Council, the members of which are elected from among the congregation and also nominated by the Parish Priest, who is the ex-officio President of the Council. One U.Arulswamy is the Vice President and while M.Thomas is the Secretary. The Vice President and the Secretary are representing the Parish in the Suit. The Nullivilai Parish is possessed of immovable properties. The Parish is in enjoyment of the properties by leasing out the same to the members of the Parish. Certain paddy land belonging to the Parish had been leased out to the 1st defendant, who had committed default in measuring the 'pattom' paddy to the Parish for six crops. In settlement of all his dues, the first defendant offered to sell the property scheduled to the plaint belonging to him to the Parish. Pursuant to that agreement, the price of the suit property was fixed at Rs.3,780/- at the rate of Rs.135/- per cent. The amount due to the Parish from the first defendant was fixed at Rs.2,905/- and this was adjusted as part of the sale consideration. Then there was a balance of Rs.875/-. The first defendant had encumbered the suit property under a hypothecation bond for a sum of Rs.900/- in favour of one Masilamony, son of Paramanandam. That debt was cleared by the Parish itself and a release deed was obtained by the Parish in the name of the first defendant, who, thereafter surrendered the possession of the property to the Parish. Thus, the entire sale price was adjusted. The suit property, at the time of the sale transaction, was lying as a paddy land called "Chettikulam Yela in Thallakulathu Puravu" with just two coconut trees. After the Parish took possession of the property, it was converted into a coconut garden by planting coconut saplings, some purchased and some contributed by a Parishioner was also planted therein. Thus, the Parish has been in continuous possession of the property ever since the surrender by exercising all acts of ownership. The coconut trees have started yielding now. The Parish is collecting the income by leasing out the usufructs of the trees to the Parishioners. Though the Parish was exercising all acts of ownership over the property, it had not obtained a formal sale deed from the first defendant. The Parish has become strained as the former wanted to get back the property by paying his original debt and also the value of improvement effected in the property for which the latter was not agreeable. The first defendant, in that regard, presented a petition before the Bishop of the Kottar Diocease under which the plaintiff - Parish comes. The Bishop of Kottar appointed a committee consisting of the local Parish Priest Rev. Barnabas, the Mulagumoodu Parish Priest Rev.S.M.Mariadhas and the Mankuzhi Parish Priest Rev. Kuzhanthaswamy to resolve the issue. Pursuant to that, a meeting of the Parish was convened on 30.04.1985 by the committee, in which the first defendant and two of his sons also participated. However, the issue was not resolved by the committee and the meeting was adjourned for a future date. In the meanwhile, the sons and daughters of the first defendant, who are defendants 2 to 7, have filed a Suit as O.S.No.727/1985 on the file of this Court against some of the Parish Council Members and the lessee of the property seeking a relief of permanent injunction restraining them from enjoying the property, in the said suit, defendants 2 to 7 herein (plaintiffs therein). The alleged gift deed is a sham document brought into existence with the motivation of getting at the property, if possible. At the time of execution of the alleged gift deed, the executant/first defendant had no subsisting title over the property, besides, he was out of possession.
As the Plaintiff-Parish has not obtained a formal sale deed from the 1st defendant, in the revenue accounts and resurvey records, the 1st defendant's name continued to be there. So, the defendants managed to remit tax and obtain a couple of receipts and resurvey patta. With the above said records, the plaintiffs in O.S.No.727/1985 are able to get an ad-interim order of injunction. But the injunction was vacated after perusing the records like minute, account book and the original hypothecation bond and the release deed which were produced by the Parish Council. The attitude of the 1st defendant in creating the gift deed in favour of defendants 2 to 7 will show the clear intention of his refusal to execute the sale deed in favour of the plaintiff-Parish. Hence, the suit.
3. The defendants 1 to 7 have filed a joint written statement contending that no patta land belonging to the Parish was leased out to the first defendant, as alleged in the plaint. The first defendant was not the lessee of the Parish, as alleged. The allegation that the first defendant committed default in measuring the pattom paddy to the Parish for six crops is also denied as false. Since the first defendant was not the lessee of the Parish, the question of default of pattom did not arise. There was no relationship between the parish and the first defendant as land-lord and tenant respectively. The first defendant never offered to sell the property scheduled in the Plaint. There was no settlement of account. There was no necessity for the same. There was no dues from the first defendant. The first defendant never agreed to sell the suit property to the plaintiff at any point of time. There was no contract for the same. Hence, the allegation that in settlement of all his dues, the first defendant offered to sell the property scheduled to the plaint as false. Pursuant to that agreement, the price of the suit property was fixed at Rs.3,780/- at the rate of Rs.135/- per cent is denied as false. There was no agreement of sale between the first defendant and the Parish as alleged. The first defendant never agreed to sell the suit property. No rate was fixed as Rs.3,780/- as alleged. No amount was due from the 1st defendant. There was no adjustment as alleged. The averments that the amount due to the Parish from the 1st defendant was fixed at Rs.2,905/- and that was adjusted as part of sale consideration is denied as false. The further allegation that there was a balance of Rs.875/- is also denied. The first defendant hypothecated the suit property. The debt was cleared by the Parish itself is denied and the release deed was not executed in favour of the plaintiff. The release deed was in favour of the first defendant, who released the property by paying the amount. The first defendant never surrendered the possession of the property to the Parish. There was no necessity also. The allegation that the entire price was adjusted is denied as false. No sale transaction took place. The Parish never took possession of the suit property. It is the first defendant, who planted coconut trees in the suit property. In the suit property, the first defendant planted a jack tree also. The Parish is not in possession of the suit property. The averments that the Parish has been in continuous possession of the property ever since the surrender by exercising all the acts of ownership is denied as false. The coconut trees are yielding and the trees are being enjoyed by the defendants 2 to 7, who are absolute owners of the same. The defendants 2 to 7 who are in actual possession and enjoyment of the property. There was no debt to the first defendant as alleged. No value of improvement was effected by the Parish in the property. Defendants 2 to 7 have filed O.S.No.727/1985 as plaintiffs against the defendants in the suit for injunction, since they threatened to interfere with the possession of defendants 2 to 7 / plaintiffs in O.S.No.727/1985. The gift deed is a genuine valid document and the same is not a sham document. The first defendant was the owner of the property, who executed the gift deed in favour of his children, who are the defendants 2 to 7. The gift deed is irrevocable. The Parish has no right to obtain any sale deed in respect of the suit property. The defendants 2 to 7 are the absolute owners in possession of the suit property. The defendants 2 to 7 are in possession and enjoyment of the suit property by paying land tax. Land has been resurveyed. Patta has been issued in favour of the defendants 2 to 7. There was no meeting held on 12.04.1987 as alleged in the plaint. There is no cause of action for the plaintiff to file the suit. The suit is not maintainable and the same is liable to be dismissed.
4.A joint trial was conducted by the trial Judge in O.S.No.725/1985 and in O.S.NO.507/1987. In O.S.No.727/1985 three issues were framed and in O.S.No.507/1987 four issues were framed for trial.
5.P.Ws.1 and 2 were examined and Exs.A1 to A4 were marked. D.Ws.1 and 2 were examined and Exs.B1 to B10 were marked.
6.On the basis of oral and documentary evidence, the learned trial Judge has decreed the suit in O.S.NO.507/1987, directing the defendants to execute the sale deed in favour of the plaintiff in respect of the plaint schedule property and dismissed the O.S.No.727/1985. Aggrieved by the finding of the learned trial Judge, the defendants in O.S.No.507/1987 preferred an appeal in A.S.No.3/1992 before the learned Subordinate Judge, Padmanabhapuram. The learned Subordinate Judge, after going through the evidence both oral and documentary and after giving due deliberations to the submissions made by the learned counsel on both sides, had allowed the appeal, thereby setting aside the decree and judgment in O.S.No.507/1987, which necessitated the plaintiff in O.S.No.507/1987 to prefer this Second Appeal. As against the judgment and decree in O.S.No.727/1985, there was no appeal preferred by either of the parties.
7.The substantial question of law involved in this Second Appeal is;
"Whether the judgment and decree of the First Appellate court is perverse on account of its finding that the suit is barred by limitation when there is nothing to show that the appellants were aware of the gift deed executed by the respondents on 05.05.1984 and marked as Ex.B8?"
8.Substantial Question of Law:-
Heard the learned counsel appearing for the appellant as well as the learned counsel appearing for the respondents. The learned counsel appearing for the appellant would contend that the learned first appellate Judge has not considered the fact that within three years from the date of Gift Deed, dated 05.05.1984, O.S.No.507/1987 was filed by the plaintiff, and hence, the suit filed by the plaintiff in O.S.N.507/1987 is not barred under Article 54 of the Limitation Act, 1963. The learned counsel would contend that only through O.S.No.727/1985, he came to know that the plaintiff has refused to perform the oral contract of sale entered into between the plaintiff and the defendants in respect of the suit property and that he had filed the suit in O.S.No.507/1995 within three years from the date of refusal i.e., from the date of Ex.B8. The learned counsel for the appellant would state that the original mortgage deed executed by the first defendant in favour of one Masilamani on 23.06.1966 in respect of the plaint schedule property (Ex.A1) and the original release of the said mortgage is under Ex.A2 dated 22.06.1973. The learned counsel would state that the fact that Exs.A1 and A2 originals are now in possession of the plaintiff itself would go to show that the plaintiff had entered into an oral agreement of sale with D1 in respect of the suit property. But as rightly held by the learned first appellate Judge, the mere possession of the originals of Exs.A1 and A2 will not derive the court to come to a conclusion that there was an oral agreement of the sale between the plaintiff and the first defendant in respect of the plaint schedule property. The conduct of the first defendant, after execution of Ex.B8, Gift Deed, in respect of the suit property in favour of the defendants 2 to 7 itself will go to show that he had no intention to execute any sale deed in favour of the plaintiff in O.S.No.507/1987 / the appellants herein. The natural conduct of a person thereafter would be to issue a suit notice to D1 demanding him to execute the sale deed in terms of the oral agreement entered into between the plaintiff and the first defendant in respect of the plaint schedule property. Except the ipse dixit of P.W.1, there is no evidence on record to show about the details regarding the sale consideration fixed by the plaintiff and the first defendant for the plaint schedule property and what was the period agreed upon between the parties to execute the sale deed and what will be the effect of non-performance of contract by either of the parties, etc., Exs.A3 and A4 entries in the register maintained by the plaintiffs Parish Church will go to show that D1, in respect of some other land of the Parish pays a sum of Rs.2,905/- towards arrears of rent and that the same was adjusted for the sale consideration of Rs.3,780/-. But, Ex.A4 entry shows that the arrears of rent to the tune of Rs.2,905/- from D1 was adjusted and the learned counsel would state that under Ex.A2, release deed, a sum of Rs.900/-
has been paid by the Parish/Plaintiffs to discharge the previous Ex.A1, mortgage. Even if those amounts are put together (Rs.2905/- + Rs.900/-) the total amount for sale consideration exceeds to the tune of Rs.25/-. So, the contentions of the learned counsel for the appellant that the agreed sale consideration for the plaint schedule property was Rs.3,780/-, cannot be sustainable. If at all the plaintiff is entitled to any relief in the suit, he can only claim Rs.900/- paid by him under Ex.A2, since the originals of Exs.A1 and A2 are produced only by the plaintiff. If the first defendant would have discharged the previous mortgage under Ex.A2 in respect of the suit property, then the originals Exs.A1 and A2 will be with D1 and there is no chance for the plaintiff to produce the originals Exs.A1 and A2 before the trial Court. Under such circumstances, I find no reason to allow the appeal, but, the suit filed by the plaintiff in O.S.No.507/1987, is liable to be decreed only for a sum of Rs.900/-, which was paid by the plaintiff to discharge the earlier mortgage under Ex.A2.
9.In fine, the appeal is disposed of, but, with the following modification in the decree. The suit in O.S.No.507/1987 is decreed for a sum of Rs.900/- only. The plaintiff in O.S.No.507 of 1987 / the appellant is entitled to 6% interest from this date till the date of realisation. In other respects the decree and judgment of the first appellate Court in A.S.No.3/1992 is confirmed. No costs.
Mpk To,
1. The Subordinate Judge, Padmanabhapuram.
2. The Principal District Munsif, Padmanabhapuram.