Madras High Court
Mylathal vs Duraisamy on 28 March, 2019
S.A.No.1302 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on: 22.02.2024 Pronounced on: 28.03.2024
CORAM
THE HONOURABLE MR. JUSTICE P.B.BALAJI
S.A.No.1302 of 2019
and
C.M.P.No.28066 of 2019
Mylathal
...Appellant
Vs.
1.Duraisamy
2.Kamalathal
...Respondents
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure, to set aside the Judgment and Decree dated 28.03.2019 made in
A.S. No.70 of 2017 on the file of the Sub Court, Kangayam, confirming the
judgment and decree dated 09.01.2002 made in O.S. No.144 of 2005 on the
file of the District Munsif Court, Kangayam.
For Appellant : Mr.T.Murugamanickam,
Senior Counsel for
Mr.S.Kolandasamy
For Respondents : Mr.N.Manokaran for R1
JUDGMENT
The plaintiff who suffered concurrently before the Trial Court as well as the First Appellate Court, in a suit for declaration of tile and permanent 1/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 injunction is the appellant before me.
2. The parties are described as per their litigative status before the Trial Court.
3. The material facts that would be necessary to decide the above Second Appeal are as hereunder:
3.1. The plaintiff's claim is that she is the wife of the first defendant and defendants 2 and 3 are son and daughter respectively of one Chinnsamy, the junior paternal uncle of the first defendant. It is the case of the plaintiff that on 08.07.1983, the first defendant settled the suit property in favour of the plaintiff, his wife, out of love and affection. The plaintiff claims that she has been paying taxes for the said property and that patta has also been changed in her name and consequently, she has been in absolute possession of the suit property. Alleging that on 10.04.2005, the defendants attempted to interfere with the plaintiff's possession, the plaintiff instituted the suit.
3.2. The defendants filed written statement denying the claim of the plaintiff that she is the wife of the first defendant. According to the defendants, the settlement deed was not executed by the first defendant as claimed and 2/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 they would refer to decree in O.S. No.196 of 1986, in and where, by the first defendant has filed the suit represented by his Guardian and uncle, Chinnasamy, the father of defendants 2 and 3, declaring himself to be the owner of the suit property. It is claimed by the first defendant that as he was suffering from mental illness at the time of filing of the suit in O.S.No.196 of 1986, he was represented by his Guardian, junior paternal uncle and subsequently, he has been cured of his mental illness. It is also contended by the defendants that the suit property has been purchased by the defendants 2 and 3, under registered sale deeds and the suit was therefore, sought to be dismissed.
4. The Trial Court finding that the plaintiff has not examined any of the witnesses to prove the settlement deed proceeded to dismiss the suit. The First Appellate Court also confirmed the findings of the Trial Court and dismissed the Appeal preferred by the appellant/plaintiff.
5. Aggrieved by the concurrent findings arrived at by the Courts below, the plaintiff has come up by way of the present Second Appeal. The above Second Appeal was not admitted. However, I have heard Mr.T.Murugamanicakam, learned Senior Counsel appearing for 3/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 Mr.S.Kolandasamy, learned counsel for the appellant and Mr.N.Manokaran, learned counsel for the first respondent.
6. The learned Senior Counsel for the appellant would submit that the Courts below have committed a concurrent error in not noticing that the earlier suit in O.S. No.196 of 1986 was filed only after Ex.A1, settlement deed, came to be executed and without challenging the settlement deed, the suit filed for mere declaration of title of the plaintiff would not be adequate. Further, he would also refer to the findings of the Trial Court that the Trial Court has erroneously presumed that the settlement deed was set aside in the earlier proceedings in O.S. No.196 of 1986. He would also state that the original settlement deed has been marked by the plaintiff in Ex.A1 and when the execution of the said settlement deed has been admitted by the defendants and in view of the earlier decree, which was also only an exparte decree, not granting a decree setting aside the settlement deed, it was not necessary for the plaintiff to examine the attesting witnesses to prove the settlement deed, execution of which was admitted.
7. The learned Senior Counsel would further contend that the first defendant did not even choose to cross examine P.W.1 and therefore, the 4/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 allegations in the plaint must be taken as proved, especially pertaining to the marriage between the plaintiff and the first defendant. He would also state that in terms of Section 103 of the Indian Evidence Act, 1872, the burden of proof was only on the first defendant, since they are alleging that the settlement deed was not duly executed, especially when the original settlement has been produced by the plaintiff. He would also suggest the following substantial questions of law:
“ (i) Whether the registered settlement deed in Ex.A1, dated 08.07.1983, has not been set aside in O.S. No.196 of 1986?
(ii) Whether the Courts below were right in construing the first defendant to be the lawful owner of the suit property.”
8. The learned Senior Counsel for the appellant would also place reliance on the following decisions:-
“1. Deccan Paper Mills Company Limited Vs. Regency Mahavir Properties and others, reported in (2021) 4 SCC 786; and
2. Flora Sunathi Samuel Vs. Thiruvannamalai Kundrakudi Adheenam, rep. by its Adheenakarthar, reported in 2024-1-L.W.577”
9. In Deccan Paper Mills Company Limited's case, referred herein supra, the Hon'ble Supreme Court referring to the Full Bench decision of the 5/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 Madras High Court in Muppudathi Pillai Vs. Krishnaswamy Pillai and others reported in (1959) SCC Online Mad 314, held that relief under Section 39 of the Specific Relief Act, 1963, could be granted only in respect of an instrument likely to affect the title of the plaintiff and expression "any person" in Section 39 would include a party to the written instrument and a person seeking derivative title from his seller. Section 31 of Specific Relief Act, has also been referred to by the Hon'ble Supreme Court and it was held that the suit filed for cancellation of a registered instrument would be an action in rem and not an action in personam.
10. The learned Senior Counsel for the appellant would also place reliance on decision in the case of Flora Sunathi Samuel's case, referred herein supra, where I have held that when a sale was void ab inito, it is not incumbent on the plaintiff to seek for declaration that the sale was null and void. The learned Senior Counsel would therefore, pray for the Second Appeal being allowed.
11. Per Contra, the learned counsel for the first respondent would submit that decree in O.S. No.196 of 1986, even though an exparte decree, it is filed against the plaintiff and therefore, it would bind the plaintiff. He would also refer to the oral evidence adduced by the plaintiff and refer to the several 6/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 portions in her cross examination, where she pleads ignorance about even close relations of the first defendant. He would also invite my attention to the fact that apart from the registered settlement deed in Ex.A1, the plaintiff has not exhibited any other documents. He would state that despite several years having passed, the plaintiff has not even chosen to mutate revenue records in her name, though such a claim was made in the plaint. He would also rely on the exhibits filed on the side of the defendants to establish that the defendants were in possession and not the plaintiff.
12. The learned counsel for the first respondent would also state that first and foremost, the plaintiff has to necessarily comply with the mandate of Section 68 of the Indian Evidence Act, 1872 and having not examined any of the attesting witnesses, the settlement deed cannot be held to be proved. He would also state that the plaintiff has miserably failed to plead material facts relating to her alleged marriage with the first defendant. Further, Mr.N.Manokaran, learned counsel for the first respondent would also state that despite admitting to have knowledge of the decree in O.S. No.196 of 1986, the plaintiff has not challenged the decree at any point of time.
13. Further, the learned counsel for the first respondent would state that 7/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 when it comes to the question of proving the document under Section 68 of the Indian Evidence Act, Section 103 of the Indian Evidence Act, cannot be pressed into service. He would also state that the fact the first defendant did not even cross examine the plaintiff would not be fatal, since there is no conflict of interest amongst defendants 1 to 3 and since they have all toed the same line and defence, cross examination on the side of the defendants 2 and 3, would be sufficient.
14. The learned counsel for the respondents Mr.N.Manokaran, would place reliance on the following decisions:
1. Board of Trustees of Port of Kandla Vs. Hargovind Jasraj and Another, reported in (2013) 3 SCC 182
2. Bachhaj Nahar Vs. Nilima Mandal and another, reported in (2008) 17 SCC 491
3. Rajasthan State Road Transport Corporation and another vs. Bajrang Lal, reported in (2014) 4 SCC 693
4. S.P.Chengalvaraya Naidu (Dead) by LRs. Vs. Jagannath (Dead) by LRs and others, reported in (1994) 1 SCC 1
5. Vijay Singh Vs. Shanti Devi and another, reported in (2017) 8 SCC 837
6. Saroja Vs. Chinnusamy (Dead) by LRs and another, reported in (2007) 8 SCC 329
7. K.Laxmanan Vs. Thekkayil Padmini and others, reported in (2009) 1 SCC 354.
8. S.Senthilkumar Vs. A.R. Venkidusamy, reported in 2019 (3) L.W. 241
9. Prem Singh and others Vs. Birbal and others, reported in (2006) 5 SCC 353
10. Sona Bala Bora and others Vs. Jyotirindra Bhatacharjee, reported in (2005) 4 SCC 501.
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11. Chacko and another Vs. Mahadevan, reported in (2007) 7 SCC 363
12. Parvathi Ammal (Died) and another Vs. Kamalammal and others, reported in 2003 (3) CTC 404.
(i) In Board of Trustees of Port of Kandla's case, referred herein supra, the Hon'ble Supreme Court held that a party aggrieved cannot decide, if an order is not binding upon him and he has to approach the Court seeking declaration, even if the order was hypothetically a nullity and invalid. He would press this judgment into service for contending that the decree in O.S. No.196 of 1986, was never challenged and would be binding on the plaintiff.
(ii) In Bachhaj Nahar's case, referred herein supra, the Hon'ble Supreme Court held that pleadings were necessary to give each side intimation of the case of the other and all material facts to make out a particular claim have to be pleaded specifically.
(iii) In Rajasthan State Road Transport Corporation's case, referred herein supra, the Hon'ble Supreme Court held that the party has to plead his case and also preduce sufficient evidence to substantiate the pleadings and the Court is not under obligation to entertain the pleadings which are incomplete.
(iv) In S.P.Chengalvaraya Naidu's case, referred herein supra, the Hon'ble Supreme Court held that a litigant who approaches the Court has to produce all documents which are relevant to the litigation and withholding of any vital documents in order to gain advantage on the other side, would 9/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 amount to playing fraud on the Court and also on the opposite side.
(v) In Vijay Singh's case, referred herein supra, the Hon'ble Supreme Court held that even an exparte decree is a valid decree and would have the same force as a decree which is passed on contest and unless, the exparte decree is recalled or set aside, it would be binding upon the parties.
(vi) In Saroja's case, referred herein supra, the Hon'ble Supreme Court held that principles of res judicata would apply even to an exparte decree. In K.Laxmanan's case, referred herein supra, the Hon'ble Supreme Court held that when the parties went to trial knowing fully well that the execution of the document was under challenge, it cannot be stated that the document under challenge should be deemed to be admitted, merely because no replication was filed by the plaintiff and further held that mere non filing replication would not amount to admission of facts pleaded in the written statement.
(vii) He would also place reliance on Parvathi Ammal's case, referred herein supra, where the Hon’ble Division Bench of this Court held that though medical testimony would not be conclusive proof, it would be of great help and assistance for the Court to determine the mental condition of a party and the Hon’ble Division Bench based on the evidence available on record held that it was established that the first plaintiff was a person of unsound mind, further taking note of the fact that mental illness, unlike physical illness does not make 10/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 its appearance on a single day and disappear the next day. The learned counsel for the respondents Mr.N.Manokaran, would therefore, pray for dismissal of the Second Appeal, as no interference was warranted in the concurrent findings of fact arrived by the Courts below.
15. Apart from factoring the submissions advanced by the learned counsel on either side, I have also carefully gone through the pleadings, the oral and documentary evidence adduced by the Trial Court and the First Appellate Court as well as the judgments of the Courts below and the judgments relied on by the learned counsel on either side.
16. The plaintiff has approached the Court seeking to declare her to be the owner of the suit property and consequently injunct the defendants from in any manner disturbing her possession of the suit property. Though the plaintiff claims that she is the wife of the first defendant, apart from the registered settlement deed in her favour, alleged to have been executed by the first defendant, not a single document had been filed along with the plaint to establish that the plaintiff is the wife of the first defendant and that the first defendant has been in absolute physical possession and enjoyment of the suit property.
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17. In the written statement, the defendants have denied the marriage between the plaintiff and the first defendant and also execution of the settlement deed being void as the first defendant was a person of unsound mind during that time, thereby rendering the document a void document. Despite the defence raised by the defendants in the written statement, even during trial, the plaintiff has exhibited only Ex.A2, Kist Receipt, dated 09.02.2010, which is admittedly after the filing of the suit, in the year 2005. Therefore, no reliance can be placed on except Ex.A2. However on the side of the defendants, besides filing the sale deed executed by first defendant in favour of defendants 2 and 3, the defendants have filed Chitta and 'A' Registers, besides also the judgment and decree in O.S. No.196 of 1986, to establish their right, title and interest over the suit property, besides also the factum of their being in possession.
18. As rightly contended by the learned counsel for the respondents, the plaintiff having come to Court seeking relief of declaration of title is bound to plead and prove all material facts touching the litigation. The defendants have clearly disowned the settlement deed and Ex.A1. If Exhibit A1 is a void document, then the same was not required to be challenged in the earlier suit. However, if the settlement deed is a voidable document, then it would have to be challenged in O.S. No.196 of 1986.
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19. Under Section 11 of the Indian Contract Act, the Statute sets out persons competent to enter into a contract. One of the conditions set out is that the persons should be of sound mind. Under Section 12 of the Indian Contract Act, what is 'sound mind' for the purposes of contracting is set out and stipulates that at the time of making contract, the person should be capable of understanding it and as to its effect upon his interest. It also sets out that a person who is usually unsound mind, but occasionally of sound mind, may make a contract during the period of his being sound. Similarly a person who is usually of sound mind, but occasionally of an unsound mind, is not entitled to enter into a contract during his period of unsoundness. Similarly Section 7 of the Transfer of Property Act, 1882 sets out persons who are competent to transfer and in terms of Section 7 every person competent to contract would be competent to transfer property as well.
20. Therefore, viewing the above statutory provision, it is clear that if it is established that the first defendant was of unsound mind at the time execution of EX.A1, then the settlement would be a void document and not a voidable document, thereby, rendering it not required to be challenged. 13/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019
21. In this connection, I have perused the plaint as well as judgment and decree in O.S. No.196 of 1986. The said suit has been filed by the paternal uncle, as guardian of the mentally unsound first defendant and it could be seen from the same that the first defendant herein as plaintiff in the said suit was permitted to be represented his paternal uncle Chinnasamy. In the said suit, the plaintiff herein has been cited as a defendant and even though in the plaint, there is a reference about the settlement deed Ex.A1, the same being a document that can be ignored by the first defendant herein, on the presumption that it is a void document, the first defendant has sought only for declaration of his title. The plaintiff herein remained exparte in the said suit and a decree has been granted. It is specifically pleaded in the said plaint that during the period of unsoundness alone, the first defendant has been taken Sub Register’s office and Ex.A1 has been brought about. Prior to the execution of sale deed in favour of defendants 2 and 3, necessary medical certificate has been obtained to show that the first defendant was out of his unsound condition and was competent to execute the sale deeds.
22. Unfortunately, though it is contended by the learned Senior Counsel for the appellant that no declaration has been sought for to declare the sale deed as null and void, I find that the decree against the plaintiff herein, though 14/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 an exparte decree has not been challenged till date. Further, it is also not the case of the plaintiff that the said decree was brought about by playing fraud. In such circumstances, the decree would certainly be valid and binding on the plaintiff. Further, the fact that the plaintiff was allowed to prosecute the suit as a person of unsound mind and be represented by his guardian, in O.S. No.l96 of 1986, a presumption can be safely drawn that during the period of execution of Ex.A1, settlement deed, as alleged by the plaintiff in O.S. No.196 of 1986, the first defendant herein was of unsound mind and consequently, was not a person competent to enter into a contract and transfer immovable property. Thus, in the light of judgment and decree in O.S. No.196 of 1986, the settlement deed in Ex.A1 was a void document and did not require to be challenged by the plaintiff. In any event O.S. No.196 of 1986, having been filed against the plaintiff herein and in the absence of, admittedly, a challenge to the same, the plaintiff in the present suit is estopped from seeking declaration of her title to the suit property.
23. Both the Courts have applied correct legal principles and have concurrently found that the plaintiff has not established to be in possession of the suit property. Moreover, Ex.A1 settlement deed, is dated 08.07.1983 and the suit came to be filed only on 27.04.2005, after lapse of 22 years, during 15/17 https://www.mhc.tn.gov.in/judis S.A.No.1302 of 2019 which period the plaintiff has failed to establish as to what steps she took in furtherance of settlement deed Ex.A1, executed in her favour.
24. From the foregoing discussions, I do not find any perversity and material irregularity in the findings arrived at by the Courts below and also do not find any substantial question of law arising for consideration in the above Second Appeal. Accordingly, this Second Appeal is dismissed. Consequently, connected Miscellaneous Petition is closed. There shall be no order as to costs.
28.03.2024
Index :Yes/No
Internet : Yes/No
Neutral Citation :Yes/No.
Speaking order/Non-speaking order
rkp
To
1.The Sub Judge, Kangayam.
2.The District Munsif , Kangayam.
16/17
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S.A.No.1302 of 2019
P.B.BALAJI, J,
rkp
S.A.No.1302 of 2019
and
C.M.P.No.28066 of 2019
28.03.2024
17/17
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