Madras High Court
Thailammai vs Karuppanan on 31 January, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 31/01/2008 CORAM THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.643 of 2000 1.Thailammai 2.Rani 3.Selvai 4.Renuka ... Appellants/Appellants/ Plaintiffs 1,3,4 and 5 Vs 1.Karuppanan 2.Thillaivasan 3.Selvamani ...Respondents 1 to 3 / Respondents 1 to 3/ Defendants 3 to 5 Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 07.09.1999 passed in A.S.No.9 of 1998 by the learned I Additional Subordinate Judge, Trichirappalli, in confirming the judgment and decree dated 15.10.1997 passed in O.S.No.298 of 1985 by the learned District Munsif, Thuraiyur. !For Appellants ... Mr.M.Thirunavukkarasu ^For Respondent ... Mr.K.Govindarajan for R1 Mr.A.Senthil Narayanan for R2 and R3. :JUDGMENT
This second appeal is focussed as against the judgment and decree dated 07.09.1999 passed in A.S.No.9 of 1998 by the learned I Additional Subordinate Judge, Trichirappalli, in confirming the judgment and decree dated 15.10.1997 passed in O.S.No.298 of 1985 by the learned District Munsif, Thuraiyur.
2. The parties, for convenience sake, are referred to hereunder according to their litigative status before the trial Court.
3. Broadly, but briefly, succinctly but narratively, the case of the plaintiff as stood exposited from the plaint and the relevant records could be portrayed thus:
(i) The first plaintiff is the wife of the deceased Kandasamy Moopan, the deceased first defendant, and the plaintiffs 2 to 5 are the children of them.
During the pendency of the suit, the second defendant died in unmarried state. The couple jointly owned the immovable properties described in the A Schedule of the plaint by virtue of they having purchased those properties in the name of one of them namely the first defendant from out of the joint income of both of them.
(ii) Subsequently, the first defendant picking up, bad qualities started living in illicit intimacy with one Maruthayee and in fact, he left Nilgris and started living with his paramour at Keerambur village ever since October 1981. The first plaintiff's fervent appeal to the first defendant to come and resume cohabitation with her ended in a fiasco and in fact, he threatened her with dire consequences. He also refused to maintain the plaintiffs. On the other hand, he mortgaged the A Scheduled property in favour of the second defendant and he also attempted to alienate the suit properties. The defendant during the pendency of the suit, sold 70 3/4 cents of the suit properties in favour of the third defendant and during the pendency of the suit, he sold the remaining extent in favour of the defendants 4 and 5. The plaintiffs therefore filed the suit in forma pauperis seeking reliefs.
4. Per contra, denying and disputing, refusing and challenging, the averments/allegations in the plaint, the first defendant during his life time filed the written statement, the quintessence of it, would run thus:
(i) The suit properties were purchased by the first defendant from out of his own income on 23.11.1978 and the first plaintiff had no right over it as those properties were not purchased from out of the alleged joint income of the first plaintiff and the first defendant. The allegations as against him about his character are all baseless and false. The first defendant was affected by partial paralysis and he could not move his right hand and hence, he shifted his residence from Nilgris to Keerambur where the suit properties are situated. He made available his houses, milch animal with the first plaintiff for the purpose of deriving income and for the maintenance of the plaintiffs. Some of the houses were income bearing houses.
(ii) On 24.03.1983, in the presence of the Panchayatars, customary divorce took place between the first plaintiff and the first defendant, the factum of it was reduced into writing and under that, a sum of Rs.3,000/- (Rupees Three Thousand only) was paid by the first defendant in favour of the first plaintiff.
It has also been found set out therein that she relinquished her rights over the suit property at Keerambur. The first defendant was not responsible for paying maintenance to the plaintiffs and accordingly, the first defendant prayed for the dismissal of the suit.
5. The third defendant filed the written statement, the nitty-gritty of it, would run thus:
The first defendant sold in favour of the third defendant, purely for the purpose of discharging his pre-existing debts and that he is the bonafide purchaser for value without any notice of right of the first plaintiff over the suit property. The first plaintiff was aware of the sale in favour of the third defendant. According to the third defendant, he purchased the properties as follows:
"3k; gpujpthjp fpuak; bgw;w brhj;J tpguk;.
Jiwa{h; jhYhfh fPuk;g{hpy;,
1.mad;g[d;ir rh;Bt 622/5 Vf;fh; 1.48 y; bghpaz;zd; fypad; nth;fs; epyA;fSf;F fpHf;F, bjw;F, Bkw;F tlf;F njw;Fs; 0.10.
2. i& ek;ghpy; fypad; epyj;Jf;Fk; Bkw;Fk;, bghpaz;zd; epyj;Jf;F tlf;F, bghd;dk;gyk; epyj;Jf;F fpHf;F, kUjKj;J epyj;Jf;F bjw;F njw;Fs; 0.31.
3. mad;g[d; v!;.vg;.622/10 Vf;fh; 0.58 y; bghJfsj;Jf;F Bkw;F, bghpaz;zd; epyj;Jf;F tlf;F, fypad; epyj;Jf;F fpHf;F, kiyfz;l thhpf;F bjw;F njw;Fs; 0.25."
The third defendant reiterated about the Panchayat proceedings as found set out in the first defendant's written statement and accordingly, he prayed for the dismissal of the suit.
6. The defendants 4 and 5 filed the written statement reiterating the averments as found set out in the written statement of the first defendant relating to the right of the first defendant to sell the properties. Accordingly, they prayed for the dismissal of the suit.
7. The trial Court framed the relevant issues. During trial, the first plaintiff examined herself as P.W.1 along with P.W.2 and Exs.A.1 to A.5 were marked. The third defendant examined himself as D.W.1 along with D.W.2 to D.W.4 and Exs.B.1 to B.7 were marked.
8. Ultimately, the trial Court dismissed the suit.
9. Being aggrieved by, the judgment and decree of the trial Court, the plaintiffs preferred the appeal in A.S.No.9 of 1998 before the I Additional Sub Court, Trichirappally, which Court dismissed the appeal, confirming the judgment and decree of the trial Court.
10. Challenging the judgments and decrees of both the Courts below, this second appeal has been filed by the plaintiffs on the following grounds inter alia thus:
Both the Courts below erred in dismissing the suit by placing reliance on Ex.B.5 for collateral purpose and accordingly, dismissed the suit. The lower Courts have not properly understood the law relating to the burden of proof in addition to having failed to take into account the circumstances involved in this case. The first appellate Court was wrong in holding that there is no specific denial of Ex.B.5 and also the payment of Rs.3,000/- (Rupees Three Thousand only) by the first defendant to the first plaintiff. There is no evidence on record to prove that the first plaintiff and the first defendant owned properties at Nilgris. The sale deeds Exs.B.1, B.6 and B.7 are invalid as they are hit by lis pendens. Accordingly, they prayed for setting aside the judgments and decrees of both the Courts below and for decreeing the suit.
11. At the time of admitting the second appeal, my learned Predecessor framed the following substantial questions of law:
"Whether the Courts below are correct in shifting the burden of proof on the plaintiffs when the defendants relied solely upon Ex.B.5 and whether the Courts below were legally justified in solely relying upon Ex.B.5 to nonsuit the plaintiff?"
12. Heard both sides.
13. Ex.B.5 is nomenclatured as divorce cum property release deed dated 24.03.1983, which is an unregistered and unstamped one, but the trial Court simply marked it without any reservation. D.W.3 claiming to be knowing about the family affairs of the first defendant, is one among the signatories of Ex.B.5. The trial Court committed error in marking Ex.B.5 as Muchalika. It is the duty of the trial Court to see as to whether the document is a properly stamped one or not. Ex facie and prima facie, it is clear that the said Ex.B.5 is an invalid, unstamped and unregistered document attracted proper stamp duty and registeration in view of it envisaging relinquishment of the first plaintiff's right over the immovable property worth more than Rs.100/-. It is a trite proposition of law that any immovable property worth more than Rs.100/- should be stamped properly and registered; even for relying on collateral purposes, it should be properly a stamped one. As otherwise, stamp duty and penal duty should be collected and then only, it could be marked and relied on for collateral purposes.In this connection, the following decisions could be fruitfully cited:
(i) Bipin Shantilal Panchal v. State of Gujarat and another reported in (2001)3 SCC. An excerpt from it, would run thus:
"It is an archiac practice that during the evidence-collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection. Such practices when realised through the course of long period to be hindrances which impede steady and swift progress of trial proceedings must be recast or remoulded to give way for better substitutes which would help acceleration of trial proceedings. (Para 13) When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence-taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. There is no illegality in adopting such a course.
(Para 14) However, if the objection relates to deficiency of stamp duty of a document the court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed.
(para 14) The above procedure, if followed, will have two advantages. First is that the time in the trial court, during evidence-taking stage, would not be wasted on account of raising such objections and the court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior court, when the same objection is recanvassed and reconsidered in appeal or revision against the final judgment of the trial court, can determine the correctness of the view taken by the trial court regarding that objection, without bothering to remit the case to the trial court again for fresh disposal. This measure would not cause any prejudice to the parties to the litigation and would not add to their misery or expenses.
(Para 15) Therefore, the above is made as a procedure to be followed by the trial courts whenever an objection is raised regarding the admissibility of any material or any item of oral evidence".
(Para 16)
(ii) Peteti Subba Rao v. Anumala S.Narendra reported in (2002)10 Supreme Court Cases 427. An excerpt from it, would run thus:
"Chapter IV of the Indian Stamp Act contains provisions regarding "instruments not duly stamped". It is Section 35 which falls under the said chapter which empowered the trial court to direct the party (who wants the documents to be acted upon) to pay the stamp duty (or the deficient portion) together with a penalty of rupees fifteen, or, when ten times the amount of the proper duty or deficient portion thereof exceeds fifteen rupees, of a sum equal to ten times such duty or portion. This is for the purpose of enabling the document to be admitted in evidence. In such a situation the document would be admitted only on payment of the aforesaid sum. In a case where the party is not willing or he cannot afford to pay the said sum the court has to adopt the procedure envisaged in Section 38(2) of the Act. That sub-section is with reference to the action which the trial court is, perforce to adopt under Section 33(1) of the Act".
14. Both the Courts below relied on Ex.B.5 for collateral purposes. I am at a loss to understand as to how that could be relied on even for collateral purposes namely, the relinquishment of her right and for the receipt of Rs.3,000/- (Rupees Three Thousand only). Once that deed is bad for non- registration and non-payment of stamp duty, it cannot be relied on for such collateral purpose. The term 'collateral purpose' is having wider connotation. The learned Counsel for the plaintiffs relied on the precedent in A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and five others reported in 2001 (1) CTC 112. An excerpt from it, would run thus:
"23. .... The expression "collateral purposes" is no doubt a very vague one and the Court must decide in each case whether the parties who seek to use the unregistered document for a purpose which is really a collateral one or as is to establish the title to the immovable property conveyed by the document. But by the simple devise of calling it "collateral purpose", a party cannot use the unregistered document in any legal proceedings to bring about indirectly the effect which it would have had if it registered."
15. As such, I am of the considered opinion that both the Courts below were not justified in relying on Ex.B.5 as a document, to prove the alleged relinquishment of first plaintiff's right as well as the receipt of money by her. But, in my considered opinion, the version found stated therein that the suit properties were purchased at Keerambur were purchased from out of the join effort of both the first plaintiff and the first defendant, is admissible in evidence so as to understand the status of the property as one that of the joint property of the first plaintiff and the first defendant. The defendants themselves after relying on Ex.B.5 is bound by the fact that the suit properties were purchased from out of the joint effort of the first plaintiff and the first defendant. The deposition of the first plaintiff as P.W.1 would clearly highlight as to how both of them were coolies and owing to their joint effort, they purchased the property as per Ex.B.2, the sale deed dated 23.11.1978.
16. The learned Counsel for the plaintiff would convincingly submit that it is not uncommon in this part of the country for the couple to purchase a property in the name of the male spouse, even though the sale consideration emerged due to the joint effort of both spouses.
17. Absolutely there is no iota or shred of evidence to show that the first defendant had any independent source of income other than his physical effort in earning money. P.W.1 would also depose that she was a physical labour along with her husband. It is also in evidence that at Nilgris, a tea shop was run by both of them. In such a case, these facts also would lend credence to the plea of the first plaintiff that the suit properties are the joint properties of the first plaintiff and the first defendant.
18. The evidence of P.W.1 is clearly buttressed by the admission made by the first defendant himself in Ex.B.5. D.W.3 also would depose that such Ex.B.5 was written so and he was a signatory to it. However, by no stretch of imagination, that deed could be taken as a divorce deed as no customary divorce is proved to have been in existence in the community of the first plaintiff and the first defendant. The oral evidence adduced on the side of the defendants in no way would demonstrate that there was any partition between the first plaintiff and the first defendant.
19. No doubt, in the same deed, Ex.B.5, there is reference to the joint property of the first plaintiff and the first defendant at Nilgris. However, P.W.1 simply denied such fact as though it was the property of one Muslim, wherein she stayed for rent. No steps were taken by the defendants to include the said properties in Nilgris also as the suit properties herein. If really, the first plaintiff and the first defendant had properties at Nilgris, then there would be no harm to include those properties also in the suit even at the stage of final decree proceedings and consequently the plaintiffs and the defendants are at liberty to take steps to include those properties in Nilgris, if such properties do exist in final decree proceedings.
20. The learned Counsel for the third defendant would argue that the properties were sold by the first defendant for the purpose of discharging the debts and not for any immoral purpose. He also placed reliance on the documentary evidence marked during trial, such as Ex.B.3, dated 17.09.1981, executed by the first defendant in favour of the Kalimuthu usufructually mortgaging the suit property. Ex.B.4, dated 30.03.1983 executed by Kalimuthu in favour of Kandasamy.
21. No doubt, these aspects should necessarily be considered at the time of final decree proceedings. The debts discharged by the first defendant should be borne by the first plaintiff to the extent of her liability as the debts should be taken as joint debts. There is nothing to show that such debts were incurred by the first defendant only for his personal purpose.
22. Ex.B.1 dated 30.03.1983, Ex.B.6 dated 06.11.1984 and Ex.B.7 dated 10.05.1985, sale deeds emerged as correctly contended by the plaintiffs only during the pendency of the suit, as those deeds are dated 30.03.1983, 06.11.1984 and 10.05.1985 respectively, whereas the suit was filed informa pauperis by presenting that original petition on 26.03.1983. The defendants 3,4 and 5 cannot be termed as bonafide purchasers for value without notice of the apple of discord between the first plaintiff and the first defendant and the claim of the first plaintiff over the suit property. In this connection, the decision of this Court in Shoba Viswanatha v. D.P.Kingsley reported in 1996 (I) CTC 620 could fruitfully be referred to. An excerpt from it, would run thus:
"14. In a suit for specific performance, if the Court feels that the suit is filed with an ulterior motive, that conduct also will have to be taken into consideration while exercising the discretion. We must understand that at the time when this suit was filed, the defendant had already filed the suit for eviction, and it was after receipt of summons, this suit was filed. That earlier suit filed by the defendant itself was for eviction of the plaintiff on the ground that he had not paid the rent and was, therefore, liable to be evicted. At the time when that suit was filed, the building was exempted from the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act. But, after the revocation of the exemption, defendant filed R.C.O.P.No.2788 of 1980 for eviction on the ground that from 1.12.1981 the defendant had not paid rent. The defence in that proceeding also was that he was in possession as owner. The said R.C.O.P. was allowed against the plaintiff, against which he preferred an appeal before the Appellate Authority as R.C.A.No.893 of 1993. Even in that proceeding, the plaintiff has taken a contention that he is not bound to pay the rent and that whatever he prays after 1.12.1981 is towards sale consideration. That shows the conduct of the plaintiff. He wanted the entire rent to be appropriated towards the sale consideration and thus get the property free of price. Such a conduct cannot be accepted by a Court of law while exercising equitable and discretionary jurisdiction.
15. The learned Judge who tried the suit himself has held that the claim put forward by the plaintiff is preposterous. Having entered such a finding on the basis of false allegations, the discretionary remedy in favour of the plaintiff should not have been granted. The first submission made by the learned counsel for the defendant therefore, deserves acceptance. In this connection, learned counsel also relied on a decision reported in S.Sankaran(died) and 4 others v. N.G.Radhakrishnan, 1994(2)L.W.642. That was also a case of specific performance where the plaintiff put forward a contention that he is the owner and not liable to pay rent, even before the document is taken. That conduct was considered by us as one disentitling the plaintiff from getting a decree for specific performance. Paragraph 13 of the judgment makes mention of the same."
23. The gist and kernel of the precedent is that a party before claiming to be a bonafide purchaser for value, should necessarily make enquiries. Here, it is clear that the purchasers happened to be the villagers and in fact, the written statement of the third defendant would show as though the first plaintiff was present at the time of sale. Had really, the first plaintiff was aware of it, then she would have already objected to it by approaching the Registration Department. The very fact that the third defendant took the plea that the first plaintiff was aware of it and in the mean time, relying on Ex.B.5, would clearly fasten him with the knowledge about the matrimonial dispute as well as the property dispute between the first plaintiff and the first defendant. As such, the very plea of the third defendant boomerangs as against him and it is quite obvious.
24. It is therefore crystal clear that the sale deeds executed during the pendency of the suit are all hit by lis pendens and furthermore, the defendants 3,4 and 5 are not bonafide purchasers without notice of the dispute between the first plaintiff and the first defendant and also the first plaintiff's right over those properties. When the defendants themselves relied on Ex.B.5, wherein it is found stated that the properties belonged to both spouses and when the third defendant himself states clearly that the first plaintiff was aware of it, it clearly demonstrates that the defendants 3,4 and 5 cannot plead that they are bonafide purchasers without notice.
25. It is therefore clear that the first plaintiff is entitled to half share and at the most, it could only be taken that the contesting defendants could work out their equity in respect of the first defendant's half share in the suit property during the final decree proceedings. As such, both the Courts below completely erred in understanding the law relating to burden of proof. The first plaintiff clearly discharged the onus probandi cast on her in view of the evidence as found discussed supra.
26. The claim for maintenance by the plaintiffs in the facts and circumstances, in my opinion, has not been proved beyond doubt for the foregoing reasons.
27. Admittedly, the plaintiff was residing at Nilgris in her house with her daughters. It is the case of the husband that he made available houses there at Nilgris with milch animals for the use of the plaintiffs and in fact, the first defendant at paragraph No.7 of his written statement would state that he became become partially handicapped, because of paralytic stroke and that thereupon only, he left the plaintiffs at Nilgris. The deposition of P.W.1 is not so clear relating to her actual status at Nilgris. It is a trite proposition of law that the party seeking maintenance should come forward with clear facts. But, she being the wife of the first defendant would simply state as though he left her without any facilities.
28. During cross-examination also, she would barely state that she was staying in a rented house belonging to one Muslim and that evidence also is not clear. Mere bald denial would not enure to her benefit. Now then, the first defendant also died. In such a case, I am of the considered opinion that it is not proper to award maintenance at this stage and in that aspect, she has not discharged her burden of proof.
29. In the result, the second appeal is allowed in part, by setting aside the judgments and decrees of both the Courts below and decreeing the suit partially and accordingly, preliminary decree is passed thus:
The first plaintiff is entitled to half share in the suit properties and the first plaintiff to the extent of half share of the debts discharged by the first defendant shall be borne by the first plaintiff and the defendants 3, 4 and 5, the purchasers of the suit property during the pendency of the suit, shall be entitled to work out their equities during the final decree proceedings relating to the other half share of the deceased first defendant who happened to be their vendor. Then, the first plaintiff is at liberty to apply for appointment of an Advocate Commissioner to divide the suit properties by metes and bounds and for demarketing the shares and allotment of her half share by the Court. The rest of the suit claim is dismissed. However, in the facts and circumstances of this case, the parties shall bear their respective costs.
rsb To
1. The I Additional Subordinate Judge,Trichirappalli.
2.The District Munsif, Thuraiyur.