Madras High Court
Rengaswami Bali vs Maruthayee Ammal on 3 August, 2007
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 03/08/2007 CORAM THE HONOURABLE Mr.JUSTICE A.SELVAM Second Appeal No.708 of 1995 Rengaswami Bali ... Appellant Vs 1. Maruthayee Ammal 2. Kuzhaiyan Bali ... Respondents Second Appeal against the judgment and decree made in Appeal Suit no.107 of 1991 on the file of the Sub-Judge, Pudukottai dated 15/12/1993 modifying the judgment and decree dated 24/4/1990 made in Original Suit No.215 of 1985 on the file of the Additional District Munsif Court, Pudukottai. !For appellant ... Mr.U.M.Ravichandran ^For respondents ... Mrs.A.L.Gandhimathi for R.2 :JUDGMENT
The concurrent judgments passed in Original Suit No.215 of 1985 and in Appeal Suit No.107 of 1991 by the Additional District Munsif Court and by the Sub-Court, Pudukottai are now under challenge.
2. The respondents herein as plaintiffs have instituted the Original Suit No.215 of 1985 on the file of the Additional District Munsif Court, Pudukottai for the reliefs of declaration, permanent injunction and also for damages, wherein the present appellant has been shown as the sole defendant.
3. The nubble of the averments made in the plaint may be stated like thus:-
The suit A schedule property is originally belonged to one Ramasamy Naicker and he sold the same in favour of one Panchalai Ammal under a registered sale deed dated 24/6/1958 and the said Panchalai Ammal has passed away and after her demise, her husband Palaniandi Naicker has indebted heavy debts and in order to cheat his creditors, he has executed a sale deed in Benami in the name of the defendant in respect of the suit A schedule property under a registered sale deed dated 24/7/1956. The first plaintiff has advanced loan to Palaniandi Naicker and since he has failed to pay the same, the first plaintiff has instituted S.C.No.1667/62 on the file of the District Munsif Court, Pudukottai and the properties of Palaniandi Naicker have been attached. After getting decree in S.C.No.1667 of 1962, Execution Petition No.1214 of 1966 has been filed. In the Court auction, the first plaintiff has purchased the suit A schedule property and obtained delivery of possession on 11/11/1967 and since then the first plaintiff has been in possession and enjoyment of the suit A schedule property. In the suit A schedule property, the defendant is not having any manner of right and interest. The suit B schedule property is originally belonged to the said Palaniandi Naicker and he has executed a mortgage deed in favour of the first plaintiff on 20/6/1955 in respect of the suit B schedule property. The first plaintiff has instituted the Original Suit No.396 of 1967 and obtained an executable decree and subsequently, the same has been discharged. The said Palaniandi Naicker has received loan from the first plaintiff by way of executing a pronote and on that basis, the first plaintiff has instituted the Original Suit No.1907 of 1967 and he purchased the suit B schedule property through Court auction. Now, the defendant has been making arrangements to disturb the peaceful possession and enjoyment of the plaintiff and under the said circumstances, the plaintiff has filed the present suit for the reliefs indicated above.
4. The material averments made in the written statement filed by the defendant may be stated like thus:-
The defendant has not known anything about the alleged attachment, and Court auction made in respect of the suit A schedule property. The proceedings made in respect of the suit A schedule property are not valid and the same are not binding upon the defendant. The suit A schedule property is not the property of Palaniandi Naicker. The suit B schedule property has been attached through Court and subsequently, the defendant has discharged the decretal amount. The first plaintiff is not entitled to deny the title of the defendant with regard to the suit B schedule property. There is no merit in the suit and the same deserves dismissal.
5. On the basis of the rival pleadings raised by either party, the trial Court has framed necessary issues and after poring both the oral and documentary evidence has decreed the suit as prayed for. Against the judgment and decree passed by the trial Court, the defendant as appellant has preferred Appeal Suit No.107 of 1991 on the file of the Sub-Court, Pudukottai. The First Appellate Court, after reappraising the evidence available on record has dismissed the appeal whereby and whereunder confirmed the judgment and decree passed by the trial Court. Against the concurrent findings given by the Courts below, the present Second Appeal has been filed at the instance of the defendant.
6. At the time of admission of the present Second Appeal, the following substantial questions of law have been formulated for consideration.
"1. Whether the lower Courts are correct in accepting the respondents/plaintiffs plea that Palaniandi Naicker executed a Benami sale deed dated 27/5/1956 in favour of the appellant/defendant in respect of the suit properties and thereby decreeing the suit ultimately in favour of the respondents/plaintiffs?
2. Whether the respondents/plaintiffs are prohibited from denying the title of the appellant/defendant by the principle of feeding the estoppel?
3. Whether the lower Appellate Court as well as the lower trial Court are correct in holding that the principle of Promissory Estoppel contemplated in Section 43 of the Transfer of Property Act will not apply to the case of the appellant/defendant?"
7. The learned counsel appearing for the appellant/defendant has contended with great vehemence that the first defendant has purchased the suit A schedule property from Palaniandi Naicker under a registered sale deed dated 27/4/1956 and on the date of sale, the said Palaniandi Naicker has had no manner of right, title and interest and subsequently, the same has been purchased by the wife of Palaniandi Naicker under a registered sale deed dated 24/6/1956 and the wife of Palaniandi Naicker has passed away leaving behind her the said Palaniandi Naicker as her legal heir and therefore, the said Palaniandi Naicker has subsequently, derived valid title to the suit A schedule property and as per Section 43 of the Transfer of Property Act, the defendant is having valid title to the suit A schedule property and the first plaintiff has purchased the same through Court auction and on the date of sale, the said Palaniandi Naicker has had no title to the suit A schedule property and therefore, the sale made in favour of the first plaintiff in S.C.No.1667 of 1962 is totally invalid. But the Courts below without considering the correct position of law have erroneously decreed the suit in respect of the suit A schedule property and therefore, the judgments and decrees passed by the Courts below are liable to be set aside.
8. Per contra, the learned counsel appearing for the respondents/plaintiffs has laconically contended that the suit A schedule property has been purchased in the name of the wife of Palaniandi Naicker on 24/6/1958 and the said Palaniandi Naicker has sold the suit A schedule property on 27/4/1956 and on the date of sale, neither the said Palaniandi Naicker nor his wife has had any manner of right, title and interest over the suit A schedule property and the first plaintiff has advanced a loan in favour of the said Palaniandi Naicker and since he has failed to discharge the same, he has instituted S.C.No.1667 of 1962 and obtained an executable decree and the same has been put into execution in E.P.No.1214 of 1966 and the first plaintiff has purchased the suit A schedule property through Court auction and therefore, the first plaintiff has derived valid title to the suit A schedule property and further, the provisions of Section 43 of the Transfer of Property Act are not applicable to the facts and circumstances of the present case and the Courts below after considering all the rival contentions raised by either party have rightly decreed the suit and there is no valid ground to make interference with the concurrent findings given by the Courts below.
9. Basing upon the rival submissions made by either counsel, the Court has to analyse as to whether under Section 43 of the Transfer of Property Act, the defendant is having valid title to the suit A schedule property.
10. Section 43 of the Transfer of Property Act reads as follows:-
"Where a person transfers any immovable property reserving power to revoke the transfer and subsequently transfers the property for consideration to another transferee it operates in favour of such transferee subject to any condition attached to the exercise of the power is a revocation of the former transfer to the extent of the power."
11. The specific contention urged on the side of the appellant/defendant is that he purchased the suit A schedule property on 27/4/1956 from Palaniandi Naicker and on the date of sale, he has had no manner of right, title and interest over the same. But subsequently, he derived title on the eve of the death of his wife and his wife has purchased the suit A schedule property under a registered sale deed dated 24/6/1958. The registration copy of the sale deed which stands in the name of the defendant has been marked as Ex.B.3 and the registration copy of the sale deed which stands in the name of Panchalai Ammal, wife of Palaniandi Naicker has been marked as Ex.A.10. Ex.B.3 has come into existence on 24/6/1958. Therefore, prior to the purchase made in the name of Panchalai Ammal, her husband viz., Palaniandi Naicker has sold the suit B schedule property under Ex.B.3 in favour of the defendant. Therefore, on the date of Ex.B.3, neither the said Palaniandi Naicker nor his wife Panchalai Ammal has had any manner of right, title and interest over the suit A schedule property. Therefore, it is very clear that the said Palaniandi Naicker has no locus standi to execute Ex.B.3 in respect of the suit A schedule property in favour of the defendant. Admittedly, the suit A schedule property has been purchased under Ex.A.10 on 24/6/1958 by the wife of Palaniandi Naicker and she subsequently passed away leaving behind her the said Palaniandi Naicker as her legal heir.
12. At this juncture, the Court must look into Section 6 (a) of the Transfer of Property Act, wherein it reads as follows:-
"The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred."
13. In the instant case, after the death of Panchalai Ammal, her husband viz., Palaniandi Naicker has succeeded her estate. The right of Palaniandi Naicker is nothing but Spes Successions or hope of Successions. As per Section 6 (a) of the Transfer of Property Act, the same cannot be transferred. Therefore, on the basis of Section 6 (a) of the Transfer of Property Act, it is needless to say that Ex.B.3 is a void document. Since Ex.B.3 is a void document, the defendant has no manner of right, title and interest over the suit A schedule property.
14. Now, the Court has to analyse the case of the plaintiffs with regard to the suit A schedule property. As adverted to earlier, the first plaintiff has advanced loan in favour of Palaniandi Naicker and since he has failed to discharge the same, the first plaintiff has instituted S.C.No.1667 of 1962 and obtained an executable decree and the same been put into execution in E.P.No.1214 of 1966 and through Court auction, the first plaintiff has purchased the suit A schedule property and the same is evidenced in Ex.A.1. Therefore, the first plaintiff has derived valid title to the suit A schedule property.
15. Now, the Court has to analyse the suit B schedule property. The defendant has not purchased the suit B schedule property under Ex.B.3. The suit B schedule property is the absolute property of Palaniandi Naicker and the first plaintiff has advanced a loan in his favour and since he failed to discharge the loan amount, the first plaintiff has instituted S.C.No.1907 of 1967 and obtained an executable decree and the same has been put into execution in E.P.No.111 of 1970 and through Court auction, the first plaintiff has purchased the suit B schedule property and therefore, the first plaintiff has derived valid title to the suit B schedule property and in which the defendant is not having any semblance of right.
16. The plaintiffs have filed the present suit for the reliefs of declaration, permanent injunction and also for damages. It is not an adulation to say that on the side of the plaintiffs, replete documentary evidence has been adduced so as to prove the valid title of the first plaintiff to the suit A and B schedule properties. It is an admitted fact that during pendency of the suit, the first plaintiff has passed away and his legal heirs have been brought on record as plaintiffs 2 and 3. Therefore, the plaintiffs 2 and 3 are now having valid title to the suit A and B schedule properties.
17. The Courts below after evaluating all the rival contentions raised by either party have rightly rejected the claim of the defendant. Therefore, the argument advanced by the learned counsel appearing for the appellant/defendant is sans merit and whereas the argument advanced by the learned counsel appearing for the respondents/plaintiffs is really having subsisting force and further, the substantial questions of law raised on the side of the appellant/defendant is not legally sustainable and consequently, the present Second Appeal deserves to be dismissed.
18. In fine, this second Appeal deserves dismissal and accordingly is dismissed with costs. The judgment and decree passed in original Suit No.215 of 12985 by the Additional District Munsif Court, Pudukottai, upheld in Appeal Suit No.107 of 1991 by the Sub-Court, Pudukottai are confirmed. Consequently, the connected Civil Miscellaneous Petition No.7685 of 1995 is also dismissed.
mvs.
To
1. The Additional District Munsif Court, Pudukottai.
2. The Sub-Court, Pudukottai.