Madras High Court
D.V. Babu vs Subbulakshmi on 10 October, 2014
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10..10..2014
Coram:
The Hon'ble MRS. JUSTICE PUSHPA SATHYANARAYANA
Second Appeal Nos. 438 and 439 of 2006 and 502 of 2008
and
C.M.P. No. 3204 of 2007 in S.A. No.438 of 2006
and
M.P. No. 2 of 2008 in S.A. No. 502 of 2008
D.V. Babu .. Appellants in
S.A.Nos. 438 & 439 of 2006
1. Ganesan
2. Mariappan
3. Muralikrishnan .. Appellants in
S.A.No. 502 of 2008
vs.
1. Subbulakshmi
2. Panneerselvam .. Respondents in
S.A.Nos. 438 & 439 of 2006
1. Subbulakshmi
2. Panneerselvam
3. Sadanandam
4. Babu .. Respondents in
S.A.No. 502 of 2008
Second Appeal Nos. 439 and 439 of 2006 filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 27.10.2005 passed in A.S. No. 16 of 2004 on the file of the Principal Subordinate Judge, Cuddalore, reversing the judgment and decree dated 10.02.2004 passed by the Additional District Munsif, Cuddalore, in O.S. No. 466 of 2000.
Second Appeal No. 502 of 2008 filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 30.11.2007 passed in A.S. No. 6 of 2007 on the file of the Principal Subordinate Judge, Cuddalore, reversing the judgment and decree dated 30.10.2006 passed by the Principal District Munsif, Cuddalore, in O.S. No. 655 of 2005.
For Appellant : Mr. R. Gururaj
in S.A. 438 & 439 of 2006
For Appellants : Mr. K.A. Ravindran
in S.A. 502 of 2008
For R 1 : Mrs. Hema Sampath, SC
in S.A. 438 & 439 of 2006 for Mr. R. Subramanian
and S.A. No. 502 of 2008
For R 2 : No appearance
in S.A. 438 & 439 of 2006
COMMON JUDGMENT
Since the suit property and the parties involved in these Second Appeals are one and the same, they are disposed of by this common judgment.
2. The plaintiff in O.S. Nos. 466 of 2000 has preferred the appeals in S.A. Nos. 438 and 439 of 2006 against the judgment and decree dated 27.10.2005 passed in A.S. No. 16 of 2004 on the file of the Principal Subordinate Judge, Cuddalore, reversing the judgment and decree dated 10.02.2004 passed by the Additional District Munsif, Cuddalore, in O.S. No. 466 of 2000.
3. The plaintiffs in O.S. No. 655 of 2005 have preferred S.A. No. 502 of 2008 against the judgment and decree dated 30.11.2007 passed in A.S. No. 6 of 2007 on the file of the Principal Subordinate Judge, Cuddalore, reversing the judgment and decree dated 30.10.2006 passed by the Principal District Munsif, Cuddalore, in O.S. No. 655 of 2005.
4. The case of the plaintiff in O.S. No. 466 of 2000 is that the suit property was the ancestral property of his father Dakshnamoorthy Chettiar and his brothers namely, Kandasamy and Ramamoorthy entered into a partition of ancestral property, in which each got 1/3rd share. It is stated that the plaintiff's father purchased 1/3rd share from his brother Kandasamy through a registered deed dated 09.10.1950 besides purchasing the remaining 1/3rd share which fell to the share of another brother Ramamoorthy, by means of a registered sale deed dated 24.09.1959. Thus, the plaintiff's father became the owner of the entire property. After the death of his father on 05.01.1983, the plaintiff became the sole owner of the property and he has been paying the property tax. While so, the mother and sister of the plaintiff filed a suit in O.S. No. 25 of 1989 against him and his tenants for partition and separate possession and the same was dismissed and the result of appeal filed in A.S. No. 71 of 1991 is not known. The defendants, who are the wife and husband respectively wanted Shop No.42/2 on rent for running a shop. Accordingly, the defendants were inducted into the property as tenants. The defendants have been paying the rent regularly. On 02.10.2000, the second defendant approached the plaintiff in respect of Shop No.42/1 also, which was in occupation of another tenant. As the plaintiff did not oblige, the aggrieved defendants threatened the plaintiff and other tenants to dispossess the same. Hence, a suit was filed for permanent injunction.
5. The suit was resisted by the defendants contending inter alia that there are three shops in front portion of the building and on the rear side, there are residential portions. According to the defendants, the plaintiff had borrowed money from the defendants for defending the case filed by his mother and sister. It is further stated that the plaintiff had also been borrowing money from the defendants for medical treatment of his son and marriage of his daughter. The further case of the defendants is that as the plaintiff could not repay the substantial amount of Rs.4,80,000/- which he had borrowed from them, he offered to sell his property to them and according to them, a sale deed was also executed by the plaintiff in favour of the first defendant on 10.11.1997. Pursuant to the sale deed, it is alleged that the defendants were also put in possession of the property. As the plaintiff could not get the signature of his son and daughter, the registration could not be completed. The further case of the defendants is that as the sale transaction is fully supported by consideration, the unregistered sale deed could be treated as an agreement of sale and that since possession of the defendants is that of part performance, they are entitled to the benefits of Section 53-A of the Transfer of Property Act, 1882. According to them, the plaintiff, suppressing all the above material facts, has filed the suit, which is not maintainable and hence, prayed for dismissal of the suit.
6. Before the trial Court, the plaintiff examined himself as P.W.1 besides examining P.W.2 to P.W.4 and marked Exs. A.1 to 47. to nullify the case of the plaintiff, the second defendant examined himself as D.W.1 besides examining two more witnesses as D.W.2 and D.W.3 and marked Exs. B.1 to B.10. Exs. X.1 to X.4 were marked as Witness documents.
7. The trial Court, after an elaborate trial, on consideration of the materials available thereon as well as the depositions of the witnesses, finding that the defendants are in possession of Shop No. 42/2, decreed the suit except Shop No.42/2. Aggrieved by the above decision, the defendants preferred an appeal in A.S. No.16 of 2004 and the plaintiff also preferred a cross appeal in respect of the portion in shop No. 42/2, on the file of the Principal Sub-Court, Cuddalore. The lower appellate Court, on appreciation of the materials and the evidence as well as the facts and circumstances of the case, holding that the defendants are entitled to the benefits of Section 53-A of the Transfer of Property Act, 1882 as Ex.B10 is true and valid document, allowed the appeal filed by the defendants and dismissed the cross appeal filed by the plaintiff. Feeing aggrieved, the plaintiff in O.S. No. 466 of 2000, has preferred Second Appeals in S.A. Nos. 438 and 439 of 2006.
8. Insofar as S.A. No. 502 of 2008 is concerned, the suit was originally filed by four plaintiffs claiming to be the tenants in the suit property, which is the subject matter in O.S. No. 466 of 2000. From the plaint averments, it is seen that each of the plaintiff is tenant in a portion of the suit property. The plaintiff as well as the defendants in O.S. No. 466 of 2000 are shown as defendants in O.S. No. 655 of 2005. It is stated that item Nos. 1 and 2 are shops, in which the plaintiffs 1 and 2 are in possession and the plaintiffs 3 and 4 are in possession of item Nos. 3 and 4 respectively. The plaintiffs 1 to 4 are the tenants and the third defendant is the landlord. The plaintiffs have been in possession respective items of the property for more than 20 years by paying rent to the third defendant. As the defendants 1 and 2 attempted to disturb the plaintiffs' peaceful possession, they have filed the suit for permanent injunction restraining the defendants from disturbing their peaceful possession and enjoyment of the suit property.
9. Defendants 1 and 2 had filed written statement contending that there are five Door Numbers in the suit property and only in respect of D.No. 42/2, the suit in O.S. No. 466 of 2000 was decreed in favour of the third defendant, who was the plaintiff in the former suit. On appeal, the suit was dismissed holding that the third defendant is not in possession of the suit property. According to the defendants, once it is found that the third defendant, who is stated to be the landlord of the plaintiffs, was not entitled to injunction, the plaintiffs / tenants cannot maintain the suit. It is further stated that the suit O.S. No. 655 of 2005 itself was only a counter blast to O.S. No. 466 of 2000 and prayed to dismiss the suit as not maintainable.
10. In respect of O.S. No. 655 of 2005, before the trial Court, the second plaintiff examined himself as P.W.1 and Exs. A.1 to A.11. Though no witness was examined on the side of the defendants, Exs. B.1 and B.2 were marked. The learned trial Judge, on consideration of the facts and circumstances of the case and finding that the connected appeals preferred by the landlord in respect of the suit property, are pending at the stage of Second Appeal, granted an injunction till such time S.A. Nos. 438 and 439 of 2006 are decided. Aggrieved by the same, the defendants 1 and 2 preferred an appeal in A.S. No. 6 of 2007 and the Lower appellate Court, relying on Exs. B.1 and B.2, held that they are in possession off the property and accordingly, allowed the appeal setting aside the judgment and decree of the trial Court. Feeling aggrieved, the plaintiffs / tenants have preferred S.A. No. 502 of 2008 before this Court.
11. At the time of admission of S.A. Nos. 438 and 439 of 2006, the following substantial questions of law were framed for consideration:
(a) Whether the alleged unregistered sale deed Ex. B.10 is admissible in evidence?
(b) Whether Ex. B.10 could be treated as an agreement of sale and the first defendant can claim the benefits of Section 53A of the Transfer of Property Act?
12. In S.A. No. 502 of 2008, notice was ordered and clubbed along with S.A. Nos. 438 and 439 of 2000.
13. S.A. No. 502 of 2008 has been filed by the tenants who are in possession of the suit property. As such, the result in S.A. Nos. 438 and 439 of 2006 will have a bearing in deciding S.A. No. 502 of 2008.
14. The entire issue in these appeals revolves around the unregistered sale deed Ex.B10 alleged to have been executed by the plaintiff in favour of the first defendant. The plaintiff has claimed title to the property from his father. From the materials available on record, it is seen that the father of the plaintiff got 1/3rd share in the suit property which was partitioned in his favour, and registered on 09.10.1950 under Ex. A.1. On the same day, the plaintiff's father purchased another 1/3rd share from his brother Kandasamy under Ex. A.2. Similarly, the remaining 1/3rd share, which fell to the share of Ramamurthy, was also purchased by the plaintiff's father on 24.09.1959 as evidenced by Ex. A.3. It is seen that after the death of the father of the plaintiff, the property devolved upon him and he has been enjoying the same by letting out Shop No.42/2 to the defendants at their requests and when the defendants also demanded Shop No. 42/1 for rent, which was already occupied by another tenant, namely, Ganesan, the plaintiff could not accept for the same, which lead to the filing of the suits.
15. The contention of the learned Senior Counsel for the respondents is that there are three shops in the front row of the suit property. It is submitted by the learned counsel for the respondents that when the defendants demanded repayment of the sum of Rs.4,80,000/- borrowed by him on various dates for his family expenses, namely, medical treatment of his son and marriage of his daughter, the appellant assured that he would execute the sale deed in favour of the defendants and accordingly, on 10.11.1997 the plaintiff had executed a sale deed in favour of the defendants. However, since the signatures of his son and daughter are not obtained in the said sale deed, the same was not registered and hence, learned counsel submitted that the same should be treated as an agreement of sale giving benefits to the respondents under Section 53-A of the Transfer of Property Act, 1882.
16. Admittedly, the ownership of the suit property is with the plaintiff. However, the plaintiff disputed that Ex.B.10 was false and he had not executed the same. The plaintiff also denied that he had borrowed money from the defendants. If really, the plaintiff had received full payment for consideration of the property, the defendants could not have kept quiet without getting the sale deed executed in their favour. As such, the defendants were in possession only in Shop No.42/2. The defendants cannot claim any right over the property, when the same is not registered. Though Shop No.42/2 only is in possession of the defendants, the trial Court had decreed the suit based on Ex.B.10 and held that the defendants are entitled to the benefits of Section 53-A of Transfer of Property Act,1882.
17. The plaintiff, who is the appellant, has not even whispered about the execution of Ex. B.10 in favour of the defendants / respondents. However, the defendants have categorically explained in the written statement about the borrowals of the plaintiff from the respondents / defendants and when he was unable to pay the huge sum borrowed, he had volunteered to sell the suit property and executed Ex. B.10. The defendant also specifically pleaded possession of the property under Section 53-A of the Transfer of Property Act and sought for his protection. It was the plaintiff who had agreed to execute the sale deed, signed by himself and his children and get the same registered in favour of the defendants. It is pursuant to Ex. B.10, the defendants are in possession of the suit property. Even prior to the execution of Ex. B.10, admittedly, the defendants were in possession of Door No. 42/2 as tenant.
18. Learned counsel appearing for the appellant contended that even presuming that Ex. B.10 was a valid document, the inaction on the part of the defendants would not entitle them to the benefits of Section 53-A of the Transfer of Property Act. It was further contended by the learned counsel that having parted with the entire sale consideration as alleged by the defendants, they could not have kept quiet without getting the sale deed under Ex. B.10 registered in their favour. Therefore, it was treated that the defendants were not entitled to the benefits of part performance as they had not volunteered to perform their part of contract within the period of limitation.
19. Section 53-A of the Transfer of Property Act gives a statutory right which is available to the transferee for consideration in possession of the property under the contract. In terms of the said Section, so long as the transferee has done and willing to perform his part of the contract or in other words, he is always ready to abide by the terms of the contract and has performed, or is ready and willing to perform his part of the contract, the transferee is entitled to avail the statutory right to protect his possession as a shield and not as a sword. Therefore, the right to retain possession of the property rests on the express provisions of the Act and on his compliance thereof. It is settled principle that a person who comes to Court, has to come with clean hands to enable him to get the relief sought for. No doubt, Section 53-A does not create any right or title on the defendants. The transfer is barred from enforcing his rights other then those expressly provided by the contract. This impliedly means that the Section imposes a bar on the transferee when the conditions mentioned in the Section are fulfilled by the transferee and the section also bars the transferor to enforce any right against such transferee or any person deriving title under him. It is in this context, Section 53-A is said to act as a shield and not as a sword. It is not the case of the plaintiff that he had not received any value of the suit property and the Courts below also have held that Ex. B.10 is a valid document and the possession of the respondents is under Section 53-A of the Act.
20. The plaintiff having filed the suit only for injunction, is duty bound to establish his possession. As discussed supra, admittedly, possession is with the defendants. The trial Court had decreed the suit excepting Door No. 42/2 in which the defendants had been in possession even prior to the execution of Ex. B.10. However, pursuant to Ex. B.10, the defendants are in possession of the entire suit property. Hence, they are entitled for protection under Section 53-A of the Transfer of Property Act.
21. Learned counsel for the respondents / defendants invited the attention of this Court to the decision in Shrimant Shamrao Suryavanshi and another vs. Pralhad Bhairoba Suryavanshi (dead) by L.Rs. and others [(2002) 3 SCC 676] wherein the Hon'ble Apex Court in paragraphs 16 and 17, has observed in the following words:-
Para 16: But there are certain conditions which are required to be fulfilled if a transferee wants to defend or protect his possession under Section 53-A of the Act. The necessary conditions are :-
(1) there must be a contract to transfer for consideration any immovable property; (2) the contract must be in writing, signed by the transferor, or by someone on his behalf; (3) the writing must be in such words from which the terms necessary to construe the transfer can be ascertained; (4) the transferee must in part performance of the contract take possession of the property, or of any part thereof; (5) the transferee must have done some act in furtherance of the contract; and (6) the transferee must have performed or be willing to perform his part of the contract.
Para 17: We are, therefore, of the opinion that if the conditions enumerated above are complied with, the law of limitation does not come in the way of a defendant taking plea under Section 53A of the Act to protect his possession of the suit property even though a suit for specific performance of a contract has barred by limitation. The above decision was subsequently followed in Huvappa Irappa Ballari vs. Basava and another [(2005) 12 SCC 164].
22. As the plaintiff has put the defendants in possession of the suit property and the same is admitted, having failed to register the sale deed along with the other title owners, viz., the son and daughter of the plaintiff, he cannot be allowed to take advantage of his own wrong. The claim of the defendants under Section 53-A of the Transfer of Property Act is not pursuant to an agreement but to an unregistered sale deed. As the sale is not registered, the same is treated as an agreement to sell. The Courts below, being the fact finding Courts, have concurrently held that the execution of Ex. B.10 is true and genuine. In view of the above facts, possession of the defendants has to be protected which disentitles the plaintiff / appellant of the relief sought for by him. As such, S.A. Nos. 438 and 439 of 2006 are liable to be dismissed and accordingly, they are dismissed.
23. In view of the finding rendered in S.A. No. 438 and 439 of 2006, wherein the defendants 1 and 2 in O.S. No. 655 of 2005 are said to be in possession, the appellants in S.A. No. 502 of 2008 are not entitled to the relief of injunction as sought for. When the case of the appellants in S.A. No. 502 of 2008 is that they were inducted as tenants under the third defendant therein, viz., the appellant in S.A. Nos. 438 and 439 of 2006, in view of the finding rendered in the other appeals that the said third defendant is not the owner of the suit property, there is no privity of contract between the plaintiffs and defendants 1 and 2 in O.S. No. 655 of 2005 as on date of filing of the suit for permanent injunction. Hence, the appeal in S.A. No. 502 of 2008 is also dismissed.
In view of the foregoing discussion, S.A. Nos. 438 and 439 of 2006 stand dismissed confirming the judgment and decree dated 27.10.2005 passed in A.S. No. 16 of 2004 on the file of the Principal Subordinate Judge, Cuddalore. S.A. No. 502 of 2008 also stands dismissed confirming the judgment and decree dated 30.11.2007 passed in A.S. No. 6 of 2007 on the file of the Principal Subordinate Judge, Cuddalore. In view of the facts and circumstances of the case, there shall be no order as to cost. Consequently, connected Miscellaneous Petitions are closed.
10 10 2014 Index : Yes Internet : Yes ari / gri To
1. Principal Subordinate Judge Cuddalore
2. Additional District Munsif Cuddalore
3. The Record Keeper V.R. Section High Court Madras PUSHPA SATHYANARAYANA, J.
gri Pre-delivery Common Judgment in S.A. Nos. 438 and 439 of 2006 and S.A. No. 502 of 2008 Delivered on 10 2014