Madras High Court
Adaikalam vs K.Pothiyappan on 3 January, 2020
Author: N.Seshasayee
Bench: N.Seshasayee
S.A.(MD) No.829 of 2013
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 18.10.2019
Judgment Pronounced on : 03.01.2020
CORAM : THE HONOURABLE Mr.JUSTICE N.SESHASAYEE
S.A.(MD) No.829 of 2013
and M.P.(MPD) No.1 of 2013
and CMP.(MD) No.9860 of 2016
1.Adaikalam
2.Panner Selvam ... Appellants / Appellants / Defendants
Vs.
1.K.Pothiyappan
2.P.Saravanan ... Respondents / Respondents / Plaintiffs
Prayer: Second Appeal filed under Section 100 of the Code of the Civil
Procedure against the judgment and decree dated 01.10.2013 made in
A.S.No.41 of 2009 on the file of the Sub Court, Pudukottai in confirming
the judgment and decree of District Munsif Court, Pudukottai dated
23.4.2009 made in O.S.No.310/2007.
For Appellants : Mr.H.Lakshmi Shankar
for Mr.K.N.Kovardhanan
For Respondents : Mr.N.Balakrishnan
JUDGMENT
The defendants are the appellants herein. The suit was laid for declaration, declaring the title of the plaintiffs and for a consequential relief of injunction.
http://www.judis.nic.in 1/34 S.A.(MD) No.829 of 2013 2.1 Before adverting into the rival contentions that gave rise to the cause of action for the suit, a few preludial facts that led to the litigation, whose factual correctness is not questioned, may be stated:-
● One Arumuga Thevar was possessed of extensive properties, and one of the properties he possessed was a plot of 14.26 acres of dry land in S.No:140 of Karukakurichi Village, Alangudi Taluk, Pudukkottai District. This is the subject matter of the suit. ● Arumuga Thevar was married twice, first to one Subbulakshmi Ammal, and thereafter to a certain Malarkodi. Through Subbulakshmi Ammal, he did not have any issue, while he had a daughter Ramamirtham, through his second wife Malarkodi. Arumuga Thevar had a brother, and his son was one Karthikeyan. In the build-up to the present litigation, Arumugha Thevar's daughter Ramamirtham, and his nephew Karthikeyan may be considered as the main characters, whereas Ramamirtham's mother Malarkodi (the second wife of Arumugha Thevar) played relatively a lesser role.
● Arumuga Thevar died on 24.02.1979, and his estate, including the suit property was succeeded to by his widow Subbulakshmi, http://www.judis.nic.in 2/34 S.A.(MD) No.829 of 2013 and his daughter Ramamirtham.
● Be that as it may, Arumuga Thevar's nephew Karthikeyan claimed that Subbulakshmi Ammal, widow of Arumuga Thevar, had executed a settlement deed dated 27.02.1984. (This document is not produced in this case.) That deed deals with few of the properties of Arumugha Thevar, to which Subbulakshmi Ammal had succeeded to. He also claimed that he is the adopted son of Arumugha Thevar.
● Claiming title to part of Arumugha Thevar's estate both as his adopted son, and part of his widow's right under the settlement deed of Subbalakshmi Ammal, Karthikeyan filed O.S.No.55 of 1986 against Ramamirtham and another, for partition before the Sub Court, Pattukottai. In that suit, the present suit property was scheduled as Item No.26 in the plaint schedule. ● O.S.55/1986, was partly decreed, when the Court accepted only the settlement deed, but not Karthikeyan's contention that he was the adopted son of Arumugha Thevar, and granted preliminary decree for partition for the property covered the settlement deed of Subbulakshmi.
http://www.judis.nic.in 3/34 S.A.(MD) No.829 of 2013 ● Both Ramamirtham and Karthikeyan felt aggrieved by the decree passed to the extent it went against their respective claim or interest, and respectively preferred A.S.953/1997 and A.S.464/1998 before this Court.
● Be that as it may, it is now necessary to introduce about the Will that Subbulakshmi was said to have executed in favour of Karthikeyan's daughter Sasibanu alias Subadharsini. The Will was executed as regards the properties not covered by the settlement deed that Subbulakshmi had executed in favour of Karthikeyan. (The details of this Will is not known) ● Be that as it may, both Ramamritham and Karthikeyan chose to compromise their dispute. Sasibanu too was impleaded in the appeals as a legatee of Subbu Lakshmi's Will. Accordingly, on 17.09.2002, a compromise decree came to be passed by this Court in A.S.No.953 of 1997 and A.S.No.464 of 1998. This compromise decree is available in the records of the present case as Ext.A-2.
● Under Ext.A-2, the suit property measuring 14.26 acres was http://www.judis.nic.in 4/34 S.A.(MD) No.829 of 2013 allotted to the share of Ramamirtham. Thereafter, on 17.03.2004 under Ext.A-1, Ramamirtham had sold the suit property to the second plaintiff.
● However, even during the pendency of O.S.55/1986, on 03-01-1996, Karthikeyan had sold 11.33 acres out of the 14.26 acres (the suit property), to the defendants under Ext.B-1 and Ext.B-2 sale deeds. According to the defendants they had since mutated the revenue records in their favour.
2.2 The emerging scenario is that Karthikeyan, who had instituted a suit for partition in O.S.55/1986, and sold 11.33 acres to the defendants, chose to compromise A.S.No.953 of 1997 and A.S.No.464 of 1998, without bringing on record the defendants herein. (He however, was careful in bringing in his daughter Sasi Banu as a party to it) And, under Ext.A-2 compromise, he allowed Ramamritham to take the entire 14.26 acres (including the property he had sold to the defendants), literally ignoring his sale of 11.33 acres to the defendants.
3. The dispute is now between the one who had purchased the property from Ramamritham, and the other who admittedly was a pendete lite purchaser of Karthikeyan. It is in this backdrop, the pleadings of the http://www.judis.nic.in 5/34 S.A.(MD) No.829 of 2013 parties requires to be placed.
The Pleadings 4.1 As the one claiming title based on Ext.A-2 compromise decree, the plaintiffs plead that, the first plaintiff is the father of the 2nd plaintiff, and two others, and the suit property measuring 14.26 acres was purchased for the benefit of their family, that the plaintiffs have grown eucalyptus trees in the suit property, that the defendants with no right whatsoever in the suit property, attempted to cut and remove the trees in the suit property on 25-10-2007, and that earlier, on 08-10-2007, the plaintiffs had issued a suit notice to the defendants which was not replied to. Hence, the suit was laid for declaration of plaintiffs' title and for allied consequential relief of injunction. 4.2 The written statement is more cryptic than the plaint. The defendants plead that they were not parties to Ext.A-2 compromise decree, that it does not bind the defendants, that on 03-01-1996, (under Exts.B-1 and B-2) they had purchased 11.33 acres from Karthikeyan, that when they purchased the property it remained dry, arid fallow, and the defendants expended considerably to develop it, and converted it into a eucalyptus farm some ten years prior to the suit, that the defendants have already taken two yields by cutting and http://www.judis.nic.in 6/34 S.A.(MD) No.829 of 2013 removing the trees, and at no time plaintiffs claimed any right over the property, and that the plaint does not even disclose the trees therein, and neither the plaintiffs, nor their predecessors-in-title are entitled to any right over the property.
4.3. It may be stated the pleadings on either side do not deal with any of the facts that formed the preludial narrative in paragraph 2.1 above, except the Ext.A-2 compromise decree. However, there is broad agreement between the parties on them.
5.1 The dispute went for trial. For the plaintiffs, the first plaintiff examined himself as P.W.1. They examined a certain Soman, an independent witness as P.W.2. Defendants examined as many as six witnesses, of who D.W.1 and D.W.6 are the defendants themselves. They produced three documents, of which two are the copies of the sale deeds in Ext.B-1 and B-2. The third document (Ext.B-3) is a copy of the decree in O.S.103/2001, a suit that Ramamritham had laid against the present defendants for injunction against apprehended threat to the former's possession. Ext.B-3 is introduced by the defendants during trial.
5.2 The trial Court decreed the suit, and it pinned its reasoning on the http://www.judis.nic.in 7/34 S.A.(MD) No.829 of 2013 fact that defendants were pendete lite purchasers since Ext.B-1 and B-2 were executed when O.S.55/1986 was still pending, and from one (Karthikeyan), who did not have any right then.
6. When the dispute was taken in an appeal by the defendants in A.S. 41/2009, the defendants had filed an additional written statement, thanks to an Order of this Court in CRP (MD) 411/2013, which enabled them to file one. There however, was a rider in the Order by which the defendants could not adduce additional evidence to substantiate their allegations raised in the additional pleadings, but must have to rely on the available evidence already brought on record to sustain them.
7. In her additional written statement, the defendants contend:
● That in her plaint in O.S.103/2001, Ramamritham had admitted that Karthikeyan (vendor of defendants) was Arumugha Thevar's adopted son, a fact that she disputed in O.S.55/1986, and suppressing this admission of her's, all have colluded and played fraud before this Court and compromised A.S.853/1997 and A.S. 456/1998. Had the sale in favour of the defendants by Karthikeyan been brought before this court, this Court might not have passed Ext.A-2 compromise decree, and the decree was fradulently obtained. As a product of calculated fraud, this decree http://www.judis.nic.in 8/34 S.A.(MD) No.829 of 2013 is a nullity, and consequently it cannot aid the plaintiffs to sustain their claim of title, as they trace their title to Ext.A-2. Consequently, neither the sale in favour of the defendants would be hit by lis pendens, nor Ext.A-2 decree will operate as res judicata.
● Ramamritham did not choose to prosecute O.S.103/2001 that she laid against the defendants herein and the suit came to be dismissed for default. If at all the plaintiffs believes in the existence of a right in them, they ought to have prosecuted O.S. 103/2001, and do not have any right to institute a fresh suit.
8. It was literal re-structuring of the defense. The parties however, chose to contest the appeal on available evidence, and as already indicated, the Order in CRP (MD) 411/2013 denied the defendants the right to lead in any fresh evidence to sustain their additional pleading founded on fraud.
9. The first appellate Court substantially adopted the same line of reasoning of the trial court, but helped itself with a greater freedom to elaborate its reasoning. The one additional point that it was required to resolve was about the effect of dismissal of O.S.103/2001. The first http://www.judis.nic.in 9/34 S.A.(MD) No.829 of 2013 appellate Court held that it does not have any bearing on the cause of action for the present suit, more so because the present suit is for declaration of title, whereas the earlier suit laid by their vendor Ramamirtham in O.S.103/2001 was a suit for bare injunction. Ultimately it chose to trek along the same track that the trial court has laid it, and dismissed the appeal.
10. Having suffered decrees concurrently before both the courts below, the defendants have now approached this Court. This appeal is admitted to consider the following substantial questions of law:
a) Whether the Courts below are in error in not holding that the compromise decree (Ext.A2) passed in A.S.853/1997 and A.S.456/1998 were obtained by fraud and collusion.
Consequently, were not the Courts below erred in not holding that Ext.A2 decree will not bind the defendants, nor will constitute res judicata?
b) Was not the present suit barred by limitation in view of the dismissal of O.S.No.103/2001, wherein the defendants had disputed the plaintiff's title?
c) Were not the Courts below erred in holding that Ext.B1 and Ext.B2 sales were hit by lis pendens, since they were obtained by the defendants during the pendency in O.S.No. 55/96?
d) Will not the dismissal of O.S.No.103/2001 has evidenced by Ext.B3, operate as res judicata.
http://www.judis.nic.in 10/34 S.A.(MD) No.829 of 2013 11 Facts that provided the setting for the ongoing lis, even though are neither pleaded adequately by both sides, nor find requisite evidentiary support, yet are seen substantially admitted as was witnessed by this Court during the hearing. Hence, the setting was not disturbed. 12.1 The core issue however is, if Ext.A-2 compromise decree passed in A.S.No.953/1997 and A.S.No.464/1998 was fraudulent? It is not in dispute, nor can it be disputed, that the defendants/appellants were only pendete lite purchasers, having purchased 11.33 acres out of 14.26 acres in S.No:140 of Karukakurichi Village, when Ramamritham and Karthikyean were still litigating their title in O.S.55/1986. When this suit reached this Court in first appeal, the parties compromised their differences, which resulted in a compromise decree in Ext.A-2. While Karthikeyan's daughter was subsequently impleaded in the pending appeals and thus became a party to the compromise, the defendant, to who Karthikeyan had sold the suit property, was not so impleaded. And, in the compromise, the suit property was allotted to the share of Ramamritham. And, having taken the suit property under Ext.A-2 compromise decree, she sold it to the plaintiff. http://www.judis.nic.in 11/34 S.A.(MD) No.829 of 2013 12.2 The plaintiffs contend that the defendants are pedente lite purchasers merely, and hence are liable to lose the property consequent to the outcome of the compromise decree whereunder their vendor Karthikeyan lost title to the property. The defendants however, cry foul of the compromise decree as was fraudulently obtained decree, for defeating their interest in the 11.33 acres that they had purchased. 12.3 The Courts below have taken a view that as pendete lite purchasers, the defendants opted to trek along a treacherous lane, and had willingly exposed their right to the peril of the outcome of the litigation. They gambled and they perished, was the conclusion of the Courts below have arrived. But have they, is the question here. Arguments for the Defendants/Appellants:
13.1 The learned counsel for the defendants/appellants submitted:
● The plaintiffs' case is pivoted on one piece of document – the compromise decree. However, the very compromise is infested in fraud, both on parties, and on Court. It gets substantiated by the following facts :
■ Ext.A-2 is not a decree that Court had granted on merits, but one born of a contract between the parties thereto. http://www.judis.nic.in 12/34 S.A.(MD) No.829 of 2013 While Karthikeyan displayed requisite care to bring on record his daughter Sasi Banu, as a legatee under the Will of Subbulakshmi Ammal, he showed even greater care to eliminate the defendants, who were his own purchasers while persuading the Court to pass a compromise decree. Indeed, after the sale to the defendants, Karthikeyan had no right to enter into compromise.
■ Would this Court which passed Ext.A-2 compromise decree, have passed it without the defendants in the party-array, if it had known that the defendants had since acquired some right over one of the items of properties involved in the appeals before it?
■ Turning to plaintiffs, they are close relatives, to be precise his nephews of Arumugha Thevar, they having born to Arumugha Thevar's brother Karuppaih Thevar. A reference to this is available in the plaint in O.S.55/1986, wherein the claim that Karuppaiah Thevar had made to the suit property is mentioned. And significantly, Ext.A-1 sale deed, under which the plaintiffs claim title to the suit property limits the recital on the vendor's title to the barest minimum, that it http://www.judis.nic.in 13/34 S.A.(MD) No.829 of 2013 does not even choose to disclose Ext.A-2 compromise decree. And, the first plaintiff, as P.W.1 concedes that he had not verified any documents to ascertain the title to the property.
● These aspects apart, Ramamirtham had filed O.S.103/2001 against these defendants for bare injunction. At the relevant time, the appeals (that later gave rise to Ext.A-2 compromise decree) were still pending. She at least knew that defendants herein have been claiming right even earlier to the compromise, yet she ventured to settle for the suit property in the compromise.
The proximity of relationship, and omission to include the defendants as parties to Ext. A-2 compromise decree when both Karthikeyan and Ramamirtham were in know of the right that the defendants claim in the suit property, or have been asserting, as the case may be, and the sale by Ramamirtham to her own relatives, who curiously enough, did not conduct themselves in a way which any ordinary prudent purchaser would conduct himself in such circumstances, are all indicators that suggest a deliberate fraud conceived and cautiously, if not, furtively executed.
http://www.judis.nic.in 14/34 S.A.(MD) No.829 of 2013 13.2 While generally, Sec.52 of the Transfer of Property Act will have application even in cases of compromise decrees passed under Order XXIII Rule 3 CPC, it is subject to an exception where such decrees are obtained by fraud or collusion. Given the factual-setting prevailing at the time when compromise was sought to be recorded by this court, would this Court which passed Ext.A-2 compromise decree, have passed it without the defendants in the party-array, if it had known that the defendants had since acquired some right over one of the items of properties involved in the appeals before it? The law on the point has been firmed up, leaving no space for doubting the correctness of the ratio declared by the Courts. They may be succinctly stated:
● Courts that record a compromise and passes a decree based on it under Order XXIII Rule 3 CPC does no more than satisfying itself whether the compromise arrived is lawful. And, it would not pass a decree if the compromise is tainted with fraud, collusion or such other factors as would vitiate a contract. The doctrine of lis pendens that Sec.52 of the Transfer of Property Act provides, cannot be pressed into service where decree was obtained collusively and fraudulently. The ratio in Rajendran & another Vs Mohanammbal [2018-5-L.W.791], E. Ramau & two others Vs E. Krishnan & fourt others [2010(4) CTC 392] and http://www.judis.nic.in 15/34 S.A.(MD) No.829 of 2013 M.Antonysamy Vs S. Mumtaj & others [2019-1-LW 986] Ramagounda Siddagouda & Others Vs Basavantraya Madivalappa [AIR 2002 Karnataka 96] support this. ● In cases where compromises are entered into and rights of innocent pendente lite purchasers are surrendered and not protected, such compromises themselves would amount to unlawful contracts within the meaning of Sec.23 of the Contract Act as held in Smt. Kiran Arora & Others Vs Ram Praksh Arora [AIR 1980 Delhi 99], and where it is not, compromises cannot be recorded, as held by the Allahabad High court in Karuna Shankar Dube Vs Krishna Kant Shukla & Others [AIR 1972 All 478], and Annamalai Chettiar Vs Malayandi Appaya Naick & Others [(1906)16 MLJ 372]. Courts have always recognised the existence of procedural space to impugn a compromise decree as held in Baijanti Bai Vs Prago & Others [AIR 1990 M.P. 370].
● An intent to defraud contaminates the purity of justice, which every judicial process repels and frowns upon. Reliance was to the ratio in P.Chengalvaraya Naidu (dead) by Lrs., Vs Jagannath (dead) by Lrs., & another [(1994)1 SCC 1], http://www.judis.nic.in 16/34 S.A.(MD) No.829 of 2013 Indian Bank Vs M/s Satyam Fibers (India) Pvt. Ltd., [AIR 1996 SC 2592].
● Where, fraud is spotted to have seeped in to steal an undeserving and unmerited advantage, judiciary has inherent powers to grant requisite relief. Reliance was placed on the authority of the Hon'ble supreme Court in Ram Chandra Singh Vs Savitri Devi & Others [(2003) 8 SCC 319].
13.3(a) The story of fraud apart, the suit itself is not maintainable.
Ramamirtham had laid O.S.103/2001 against the defendants herein for bare injunction that her possession of the suit property should not be disturbed. The copy of the plaint though was not part of the evidence already on record, it is being produced in C.M.P.(MD) 9860 of 2016. And, she did not choose to prosecute the suit. This suit, which was filed when A.S.No.953/1997 and A.S.No.464/1998 were still pending on the file of this Court, was significant for two reasons: First, Ramamritham had indicated in her plaint that the defendants had created some documents to claim right, which in turn would imply that she was in know of the right that the defendants have been claiming even prior to she entering into a compromise with Karthikeyan. Yet, she chose to obtain the suit property for herself in the compromise. In the context of http://www.judis.nic.in 17/34 S.A.(MD) No.829 of 2013 the case on fraud, she indeed was an active player in conceiving the scheme of fraud and taking a role herself. The second aspect about this suit was, it was dismissed for default.
13.3(b) The consequence of the dismissal of O.S.103/2001 is that it denies the plaintiffs a right to institute a separate suit on the same cause of action under Order IX Rule 9 CPC. If at all any, they should have resorted to the procedural means to restore O.S.No.103/2001. In short, the present suit is not maintainable. Reliance was placed on Suraj Rattan v. Azamabad Tea Co. Ltd., [AIR 1965 SC 295]. 13.4 There is a possession angle to the defendants' case: In the plaint, there is a weak statement by the plaintiffs that they had planted Eucalyptus trees in the suit property, but during trial, P.W.2 exposed the falsity of this statement when he deposed that Ramamritham had planted the trees. Now Ramamritham in her plaint in O.S.103/2001 had pleaded that she had planted these trees in the suit property, but in Ext.A-1 sale deed that she executed in favour of the plaintiffs, she omitted to make any reference to the eucalyptus trees. And, when the defendants examined an independent witness D.W.6, the plaintiffs had suggested that (out of the 11.33 acres that the defendants had purchased) eucalyptus trees are standing only in 8.0 acres, and that http://www.judis.nic.in 18/34 S.A.(MD) No.829 of 2013 the second defendant had cut and removed the trees in the remaining 3.33 acres. In other words, the plaintiffs have climbed down to concede to defendants' possession. This aspect of physical possession is fortified by the patta issued to the defendants. Arguments for the Plaintiffs/Respondents:
14.1 The learned counsel for the plaintiffs primarily argued:
● Nowhere in their pleadings initially filed, the defendants have impugned the compromise, pleading specifically the fraud within the meaning of Order VI Rule 4 CPC. While this lacuna in the written statement was filled up before the first Appellate Court, thanks to the Order of this Court in CRP(MD) 411 of 2013, yet this court let the defendants to take that plea chiefly because the defendants informed the Court that they would not reopen the case for producing any oral or documentary evidence. First, additional written statement ought not have been received at the first Appellate Court in terms of the ratio in Chandra & 2 others v. Ranganathan [2005-4-LW 482], H.Ramachandra Rao v. A.Mohideen [2000-1-L.W.420] and Poongavanam Ammal v. Navaneetham Ammal [2000-1-L.W.821]; Second, the defendants have forfeited their right to produce evidence in aid of it. Today, there are pleadings that Ext.A-2 decree is http://www.judis.nic.in 19/34 S.A.(MD) No.829 of 2013 fraudulent, but the same stands unsubstantiated for want of evidence. Curiously enough, in the plot that the defendants/appellants have conceived to allege fraud, their vendor Karthikeyan is seen spared, and sizable allegations are directed only against the plaintiffs.
● Secondly, nowhere the defendants have come with a counter- claim for setting side Ext.A-2 compromise decree. Instead, they have only incidentally, or collaterally attacked the compromise decree, which on its face, they cannot ignore, as they were pendete lite purchasers, and their vendor was party to the decree. Even if were to be presumed that the defendants did not know about the passing of Ext.A-2, yet the fact remains that the plaint in this case discloses it.
● If the defendants have to justify their title to the suit property under Karthikeyan, then it could be only based on the settlement deed that Arumugha Thevar's widow Subbulakshmi Ammal had executed in favour of Karthikeyan. However, the settlement deed did not include the suit property. The defendants ought to have enquired about it with Karthikeyan, which they did not do. The second defendant as D.W.1, and the first defendant as D.W,6 http://www.judis.nic.in 20/34 S.A.(MD) No.829 of 2013 also concede that they did not ascertain the title of Karthikeyan. Obviously, the defendants are not bonafide purchasers. In fitness of things, the defendants should have examined their vendor Karthikeyan, but that was not done.
● When the defendants are pendente lite purchasers, they cannot escape the invitation that Sec.52 of the transfer of Property act throws on them. And, they need not be a party to the compromise, as they can have no pleadings different, or greater than what their pendete lite vendor has pleaded. Necessarily, Ext.A-2 decree would bind them. Reliance was to the authorities of the Hon'ble Supreme Court in Amit Kumar Shaw and another v. Farida Khatoon and another [2005-3-L.W.728 (SC)], and Thomson Press (India)Ltd., Vs Nanak Builders & Investors Pvt. Ltd., [2013(2) CTC 104].
14.2 Turning to the effect of dismissal of O.S.103/2001, and its alleged adverse impact on the maintainability of the present suit, in that suit, the defendants remained exparte, and it was only thereafter the suit came to be dismissed for default. Now, for Order IX Rule 9 CPC to apply, it must be preceded by a situation contemplated in Order IX Rule 8 CPC, which requires the presence of the defendants before the Court. http://www.judis.nic.in 21/34 S.A.(MD) No.829 of 2013 Inasmuch as the defendants themselves were exparte in the suit, the requirements of Order IX Rule 8 CPC were absent, and consequently Order IX Rule 9 CPC will not have application. Secondly, Order IX Rule 9 CPC will apply only if the present suit is founded on the same cause of action. The test here is, were the plaintiffs in a position to prosecute O.S.103/2001?
14.3 Turning to possession of the property, the defendants stopped with production of their sale deeds (Exts.B1 and B2), and opted not to produce any documents to support possession. The plaintiffs had produced their patta, which law considers as a document evidencing possession, and plaintiffs possession of the suit property is upheld on rule of probability. This is now sought to be cured in the second appellate stage, and this is impermissible.
14.4 Turning to additional documents now produced for receiving them as additional evidence under Order XLI Rule 27 CPC Vide CMP(MD) No. 9860 of 2016, it primarily goes against the statement that they made before this court in CRP 411/2013. Secondly, whatever documents that are now produced were well within the ability of the defendants/appellants to produce during trial. http://www.judis.nic.in 22/34 S.A.(MD) No.829 of 2013 Discussion & Decision:
15. An analysis of rival arguments can be synopsized as below:
a) If Ext.A-2 is tainted in fraud, and what role had Karthikeyan and Ramamritham played in it? The plaintiffs have come much later, a few years after Ext.A-2 decree, and hence they do not have a serious role there.
b) Can the question of fraud as affecting Ext.A-2 be decided conclusively, based of the evidence which were made available before the Courts below, or, does it require any additional evidence? If it requires additional evidence, how far the statement made by the defendants before this Court during the hearing of CRP 411/2013 will impact it? In other words, can the right to produce evidence be forfeited or surrendered? And, if it can operate as a restriction on Courts powers to require evidence under Order XLI Rule 27(2) CPC?
c) Inasmuch as the defendants are pendete lite purchasers from Karthikeyan even when O.S.55/1986 was pending, should the decree be held as not affecting the rights of defendants due to their non-participation in the compromise entered in A.S.No. http://www.judis.nic.in 23/34 S.A.(MD) No.829 of 2013 953/1997 and A.S.No.464/1998.
d) The effect of dismissal of O.S.103/2001 that Ramamritham had laid on the maintainability of the present suit.
On Maintainability of the suit:
16.1 Of the points raised, the last one can be decided first: If the dismissal of O.S.103/2001 for default operate as a bar under Order XI Rule 9 CPC to maintain the present suit.
16.2 Karthikeyan had laid O.S.55/1986 for partition against Ramamritham. It was disposed of by the trial Court on 05-08-1997. Appeals in A.S.953/1997 and A.S.464/1998 had been preferred. The copy of the judgement in O.S.55/1986, even though made available in the typed-set of papers produced by the defendants/appellants before this Court, yet, it was not sought to be introduced as additional evidence under Order XLI Rule 27 CPC. Procedure law forbids this Court from taking cognizance of the contents of this uncertified copy of the judgement in the type-set to supply reasoning for its decision to be made.
16.3 Ramamritham had filed O.S.103/2001 against the present http://www.judis.nic.in 24/34 S.A.(MD) No.829 of 2013 defendants during the pendency of A.S.953/1997 and A.S.464/1998, at a time when her right over the property presumably was in a state of supsense. This is because, what was the extent to which Karthikeyan and Ramamritham had preferred their respective appeals was not known for want of evidence on this aspect. 16.4 A copy of the plaint in O.S.103/2001 is now produced by the defendants as additional evidence. As there is consensus about the institution of this litigation and its ultimate end, this Court chooses to admit it in evidence as Ext.B-4. If this plaint is turned to, there, Ramamirtham is seen alleging that the suit property was shown as item 26 in O.S.55/1986, and that the trial Court had found that this property did not belong to Karthikeyan.
16.5 In the context of bar of suit under Order IX Rule 9 CPC, a subsequent suit can be barred only if it is founded on the same cause of action as the one that was dismissed for default. The question is, if the present suit is founded on same cause of action as in O.S.103/2001. This Court holds this in the negative, and the reasons are:
● O.S.103/2001 was laid for bare injunction, and the present suit is a comprehensive suit for declaration of title. For a detailed exposition of law on the subject, see Anathula Sudhakar Vs P. http://www.judis.nic.in 25/34 S.A.(MD) No.829 of 2013 Buchi Reddy (dead) by Lrs., & others [2008(6) CTC 237]. ● O.S.103/2001 was laid when title of Ramamritham was not yet conclusively decided, whereas the present suit is laid after Ext.A-2 decree, Ramamritham has sold the property to the plaintiffs claiming absolute title to the suit property. And, this title of Ramamritham can be traced to Ext.A-2 decree. While O.S. 103/2001 is a pendete lite suit, filed during the pendency of A.S. 953/1997 and A.S.464/1998, the present suit is not so. Is Ext.A-2 decree a fraudulent decree?
17. The indisputable basic premise here is that the defendants are the pendente lite purchasers under Karthikeyan, when he laid O.S.No. 55/1986 for declaration of his title over a substantial fraction of several items of properties of Arumugha Thevar, and for partition of his share. It was an admitted fact on either side, that he based his title to the suit on two sources: First under the settlement deed executed by Arumugha Thevar's widow Subbulakshmi as regards her share over few of the properties of her husband; and second, he claimed that he was the adopted son of Arumugha Thevar. When Karthikeyan sold 11.33 acres to defendants, the right he conveyed should have been sourced either under the settlement deed of Subbulakshmi Ammal, or as the http://www.judis.nic.in 26/34 S.A.(MD) No.829 of 2013 adopted son of Arumugha Thevar. It is this set of basic facts that provide the plane for discussion on the allegation of the defendants/appellants that Ext.A-2 decree was fraudulently obtained, inasmuch as they were not included as parties to the compromise decree.
18. To fortify his submission on the point, the learned counsel for the defendants/appellants relied on several authorities (which are listed in paragraph 13.2 above) which hold that a compromise decree passed can be vitiated by fraud. There is no disputing the legality of this long standing view on the point. That fraud vitiates everything that falls within its sweep has now come to be recognised as a rudimentary principle which might not require a great degree of discussion. But the point is, is there a fraud? This seeks an answer in facts which, a conjoint effort of the defendants' pleadings and the evidence ought to produce.
19. The defendants here relies on two circumstances: That Karthikeyan had sold the property during the pendency of O.S.55/1986. That Ramamirtham knew about this fact even when she instituted O.S. 103/2001. Still, when the lis in O.S.55/1986 was compromised in the first appellate stage in A.S.953/1997 and A.S.464/1998, the defendants http://www.judis.nic.in 27/34 S.A.(MD) No.829 of 2013 were not impleaded in the appeal, that the parties to the appeal were careful enough to avoid the participation of the defendants in the compromise, but they, in the ultimate analysis, have lost the property as Karthikeyan had allowed it to be allotted to his rival Ramamirtham. If this argument is analysed in its deeper layers, it would become apparent that the element, which according to the defendants/appellants constituted fraud, is their non-impleadment in A.S.953/1997 and A.S.464/1998 before Ext.A-2 compromise decree was passed. And, strong reliance was placed on the ratio in Rajendran & another Vs Mohanammbal [2018-5-L.W.791] = 2018(6) CTC 483 = 2018(8) MLJ 649].
20. In Rajendran's case [2018-5-L.W.791 = 2018(6) CTC 483 = 2018(8) MLJ 649], I have had an occasion to delve into the right of a pendente lite purchaser to have him impleaded in the pending suit, and concluded that he does have a right which the Court in a given case ought to weigh. A summation of the reasoning of the Court may be stated:
● When an immovable property is transferred pendete lite, the right in the property is vested in the transferee in presenti. In other words vesting is not postponed till after the conclusion of the lis. More so for averting situations, where a transferor pendente lite http://www.judis.nic.in 28/34 S.A.(MD) No.829 of 2013 might not defend the title of his pendente lite purchaser, or might collude with the other side to snatch away the right that has vested in his purchaser with an intent to defraud the latter. ● And, when right has vested in a pendete lite transferee, he is the best person to defend his right, and his transferor, a party to the pending litigation, had at that point of time is expected to do only such acts as are necessary to protect the title of the transferee and no more.
21. The ratio of Rajendran's case presupposes the existence of a right, howsoever inconsequential it may appear, in a party to the suit, which right later came to be transferred during the pendency of the suit. It therefore follows that, where the transferor himself does not have any right in the property, or found not have any right in the property by the Court, non-impleadment of the pendente lite transferee will be inconsequential, for in terms of Sec.8 of the Transfer of Property Act, a transferor of an immovable property cannot transferor any right greater than what he have in the property. In Rajendran's case, the facts would go to show, that the transferor pendente lite was found to have had fractional right over the property sold pendete lite, and this right was real. Set in the context of the facts of that case, I held that pendente lite transferee had a right to be heard in the final decree http://www.judis.nic.in 29/34 S.A.(MD) No.829 of 2013 proceedings. Whether ex-ante non impleadment of a pendente lite transferee in a pending suit will feed ex post allegation of fraud as to vitiate a decree passed therein, is determined chiefly by the existence of right in the pendete lite transferor.
22. If this ratio in Rajendran's case is to have any application in this case, then it ought to be shown that Karthikeyan had preexisting right in the suit property at the time when he sold 11.33 acres in the suit property to the defendants. As already indicated, but for the settlement deed executed by Arumugha Thevar's widow, he would not have obtained any right to any of the properties of Arumugha Thevar. Besides this settlement deed, in O.S.55/1986 Karthikeyan is alleged to have pleaded in his written statement that he was the adopted son of Arumugha Thevar. If it were true, then he might obtain additional share in the properties of Arumugha Thevar. Here in the course of his arguments, the learned counsel for the plaintiffs/respondents had argued that the trial court in O.S.55/1986 had held that the suit property herein (which is described as item 23 in O.S.55/1986), was not included in the settlement deed dated 27.02.1984 executed in favour of Karthikeyan by Subbulakshmi Ammal. Very unfortunately, neither side produced either the settlement deed dated 27.02.1984, nor the copy of the judgement in O.S.55/1986 in the manner that CPC http://www.judis.nic.in 30/34 S.A.(MD) No.829 of 2013 provides. These documents will enable the Court to ascertain if Karthikeyan had any right in the suit property in order the non- impleadment of the defendants in A.S.953/1997 and A.S. 464/1998 might amount to a fraudulent non-inclusion, as to vitiate Ext.A-2 decree.
23. Both sides are not the legal representatives of any of the parties to O.S.55/1986, but are their purchasers merely. And, both of them missed out in producing this all significant documents, namely the settlement deed dated 27.02.1984 executed by Subbulakshmi Ammal in favour of Karthikeyan, and the certified copies of the pleadings and judgement in O.S.55/1986. Necessarily this Court has to remand the matter back to the first appellate court to enable the parties, to produce these documents.
24. In conclusion, this appeal is allowed, the decree of the first appellate Court in A.S.No.41 of 2009 is set aside, and the matter is remanded back to the first appellate Court for it to determine the defendants' plea that Ext.A-2 decree was fraudulently obtained in the light of what have been discussed herein. Both sides are at liberty to produce the settlement deed dated 27.02.1984 executed by Subbulakshmi Ammal in favour of Karthikeyan, and also the copies of http://www.judis.nic.in 31/34 S.A.(MD) No.829 of 2013 the pleadings and judgement in O.S.55/1986. In the event of anyone of the parties producing any of the documents mentioned herein, the other side will have the right to adduce rebuttal evidence. The first Appellate Court is directed to dispose of the case within 6 months from the date of receipt of the copy of the decree. Both parties are directed to appear before the first appellate Court on 03.02.2020. CMP.(MD) No.9860/2016 is partially allowed, and to the extent indicated in paragraph 16.4 above. So far as other documents sought to be produced are concerned, since the matter is now remanded back to the first Appellate Court, the said Court may consider the same in terms of Order XLI Rule 27 CPC. No costs. Consequently, connected miscellaneous petition is closed.
03.01.2020 ds/CM Index : Yes/No Internet : Yes / No Speaking Order / Non speaking Order To:
1.The Sub Judge Pudukottai.
2.The District Munsif Pudukottai.
3.The Section Officer VR Section Madurai Bench of Madras High Court http://www.judis.nic.in 32/34 S.A.(MD) No.829 of 2013 Madurai.
http://www.judis.nic.in 33/34 S.A.(MD) No.829 of 2013 N.SESHASAYEE.J., CM Pre-delivery Judgment in S.A.(MD) No.829 of 2013 03.01.2020 http://www.judis.nic.in 34/34