Madras High Court
Asmath Kathu vs Lal Khan on 10 September, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE OF MADRAS
DATED: 10..09..2008
CORAM:
THE HONOURABLE MR. JUSTICE G.RAJASURIA
A.S.NO.200 OF 2002
Asmath Kathu .. Appellant
vs.
1.Lal Khan
2.Liyakath Ali
3.Gudukhan
4.Indian Overseas Bank
rep.by its Branch Manager,
Ulundurpet,
Villupuram District.
5.The Central Co-operative
Agriculture Bank,
rep.by its Manager,
Manila Market,
Ulundurpet,
Villupuram District.
6.Uzhavar Kootaravu Sangam
rep.by its Secretary,
Manicka Padayachi Street,
Ulundurpet,
Villupuram District Respondents
Appeal preferred against the judgment and decree dated 2.5.2002 passed in O.S.No.140 of 1996 by the I Additional Subordinate Judge,Villupuram.
For Appellant : Mr.S.Parthasarathy,
Senior counsel for
M/s.Sarvabhauman Associates
For Respondents: Mr.R.Balakrishnan
JUDGMENT
This appeal is focussed against the judgment and decree dated 2.5.2002 passed in O.S.No.140 of 1996 by the Ist Additional Subordinate Judge,Villupuram. For convenience sake the parties are referred to under under according to their litigative status before the trial Court.
2. The portrayal and parodying of the case of the plaintiff could be set out quintessentially and precisely thus:
(a) One Purankhan died issueless and intestate a year and a half, before the institution of the suit, whereas his wife pre-deceased him. Purankhan's legal heirs are his brothers, viz., the plaintiff and D3 herein. The property described in the "A" schedule of the plaint was the absolute property of Purankhan. He had bank accounts as set out in the "B" schedule of the plaint. He had cash of Rs.5 lakhs. He lent money to various persons as found detailed in the "C" schedule of the plaint.
(b) The plaintiff and D3 are entitled to half share each in the suit properties after paying the dues towards Purankhan's funeral expenses, debts and legacies, if any.
(c) D1 is the husband of D2, who is the daughter of late Nabikhan, who was one of the brothers of Purankhan. D1 and D2 had no right or title over Purankhan's properties and they could have no claim over it also in any capacity. However, they withdrew the money standing in the account of Purankhan from the Banks as set out in the "B" Schedule.
(d) In the Panchayat held, D1 and D2 agreed to give half share in the immovable properties and not in the movable properties of deceased Purankhan.
(e) Jewels weighing 150 sovereigns were pledged by Purankhan with D6 during his life time and in fact, he discharged the major portion of the debt. After the death of Purankhan, D1 and D2, got the 150 sovereigns of jewels from the Bank without producing any succession certificate or any other evidence to establish their right. D1 and D2 therefore are bound to return to the plaintiff and D3 the jewels as set out in the "D" schedule of the plaint.
(f) There were exchange of notices and from that the plaintiff understood the contention of D1 and D2 as though a Hibba was effected by Purankhan in favour of D2 and subsequently, release deeds executed by the plaintiff dated 17.2.1995 and 4.5.1995 emerged. The plaintiff was aged about 65 years and illiterate and taking undue advantage of his innocence, D1 fraudently obtained his thumb impressions in blank papers by representiung that the signature/thumb impressions have been obtained for the purpose of getting relief from the government relating to the death of his brother. Such release deeds are nonest in the eye of law.
(g) The contention of D1 and D2 that D2 was the foster daughter of Purankhan is nothing but an utter falsehood. Accordingly, the plaintiff prayed for the following main reliefs:
"a) to ascertain the extent of the property of the deceased Purankhan and to ascertain and realise the out standings of the deceased Purankhan;
b) to administer the estate of the deceased Purankhan by providing for the funeral and other expenses.
c) to allot half share in the remaining estate of the deceased on a fair and equitable division.
d) to direct the defendants to pay the costs of the suit."
3. Remonstrating and denying, challenging and impugning the allegations/averments in the plaint D2 filed the written statement, the warp and woof of them would run thus:
(i) The plaintiff and D3 are not the legal representatives of the deceased Purankhan. The second defendant being the daughter of Nabikhan, was brought up by Purankhan, who had no biological child of his own. While so, Purankhan orally gifted the suit properties in favour of D2 and put her in possession of the same during the months of March 1994 itself. By way of confirmation of the said oral gift, he got it recorded in writing on 21.4.1994.
(ii) It was Purankhan who arranged for the marriage of D2 with D1. Since Purankhan's wife pre-deceased him, D2 looked after him till this date.
(ii) The plaintiff and D3 executed the release Deed dated 17.3.1995 in favour of D2 and the same was registered. They once again executed a release deed dated 4.5.1995 setting out all the details, so as to avoid future dispute. The plaintiff and D3 are estopped from questioning the validity of the Hibba.
(iv) The allegations in the plaint quite contrary to what plaintiff and D3 committed themselves in black and white in the form of release deeds are all false and frivolous, dished out and invented purely for the purpose of depriving D2 of her right over the suit properties.
(v) The valuation of the suit and the payment of Court fee are not correct. Purankhan did not possess, at any time, 150 sovereigns of gold jewels and he did not pledge the same with the 6th defendant, during his life time.
(vi) The allegations in the plaint that Purankhan had 5 lakhs cash and that he lent monies as found set out in the 'C' schedule of the plaint are all false.
Accordingly, D2 prayed for the dismissal of the suit.
4. Quintessentially and briefly, the averments as found set out in the written statement of D4 would run thus:-
(a) The deceased Purankhan had Savings Bank Account No.14986 with the Bank specifying one Asmath Kathu as his nominee and therefore D4 cannot be found fault with for having given the monies due concerning the Bank account of the deceased Purankhan in favour of D2.
(b) D2 also produced the heirship certificate, issued by the Tahsildar Ulundurpet and obtained back the jewels, which were mortgaged by Purankhan during his life time.
Accordingly, D4 prayed for dismissal of the suit as against the plaintiff.
5. Precisely and briefly the contentions of D6-Uzhavarpani Kooturavu Sangam as stood exposited from its written statement would run thus:-
Purankhan did not pledge 150 sovereigns of gold jewels with D6 during his life time. Only two bangles weighing 16 grams were pledged for a sum of Rs.4,500/- and Purankhan himself, during his life time, returned those jewels.
Accordingly, it prayed for dismissal of the suit.
6. The trial Court framed the relevant issues. During enquiry before the trial Court, the plaintiff examined himself as P.W.1 and marked Exs.A1 to A8. On the side of the defendants, D.W.1 to D.W.7 were examined and Exs.B1 to B.36 were marked.
7. Ultimately the trial Court decreed the suit. Being dissatisfied with and aggrieved by the said judgement and decree of the trial Court, D2 filed this appeal on various grounds, the warp and woof of them would run thus:
(a) The judgment and decree of the trial Court are against law and weight of evidence;
(b) the trial Court failed to hold that the suit was not properly valued and correct Court fee was not paid.
(c) No Court fee was collected towards the relief of recovery of jewels.
(d) the suit itself was bad for want of a prayer for getting Ex.B3 and Ex.B4 set aside and relating to such reliefs, the suit was not properly valued and Court fee also was not paid.
(e) the trial Court failed to understand that the Hibba took place on one day, whereas Ex.B1 emerged on a different date.
(f) D.W.2's deposition was by way of butressing the plea of Hibba, but the trial Court failed to note it.
(g) Despite examining the scribe and the attestor to Ex.B1, the trial Court failed to uphold Ex.B1 as a valid document.
(h) D3 did not support the case of his brother-the plaintiff and ignoring the same, the trial Court decreed the suit in favour of the plaintiff.
(i)the factum of Purankhan having brought up D2 as his own daughter, was ignored by the trialCourt despite evidence adequately adduced in that regard.
(j) Ex.B3 and Ex.B4 being registered documents had authenticity of their own, but the trial Court, without any valid reason simply rejected the same.
(k)Ex.B32 and Ex.B33 were rejected erroneously by the trial Court without any valid reason.
(l) Even in the absence of any evidence to prove that D2 came into possession of 150 sovereigns of gold jewels, the trial Court decreed the suit directing D2 to part with those alleged jewels.
Accordingly, D2 prayed for setting aside the judgment and decree passed by the trial Court and for dismissing the original suit.
8. The points for consideration are as to
(i) Whether Purankhan validly effected Hibba i.e. oral gift in favour of D2 relating to the immovable properties described in the schedule of the plaint?
(ii)Whether the plaintiff and D3 executed the release deeds Ex.B3 and Ex.B4 accepting the said Hibba effected by Purankhan in favour of D2?
(iii) Whether the copy of the sale deed dated 23.3.2006 executed by D3 in favour of D2 could be admitted as additional evidence in this case.
(iv) Whether the suit was not properly valid and correct court fee paid?
(v) Whether Purankhan owned 150 sovereigns of gold jewels and any other movable property including cash? And if so, whether D2 appropriated illegally those properties?
(vi) Whether there is any infirmity in the judgment and decree of the trial Court.
9. Points (i) and (ii): These two points are taken together for discussion as they are inter-woven and interlinked with each other.
10. Pithily and precisely the averments as put forth by the learned counsel for D2 would be that Purankhan, during his life time, validly effected Hibba relating to the suit properties; the factum of which was amply acknowledged and accepted by the plaintiff and D3 as per Ex.B3 and Ex.B3; even de hors such release deeds, D2 is entitled to the suit property as per Hibba, but by way of abundant caution, so to say ex abundanti Cautela, Exhibits Ex.B3 and Ex.B4 were got executed in favour of D2 from the plaintiff and D3, which would not in any way enure to the benefit of them to contend as though such release deeds pre-supposed the shares of those executants of the release deeds.
11. Per contra, by way of torpedoing the contention and allegations on the side of the D2, the learned counsel for the plaintiff would advance his arguments, the pith and marrow of them would be that D2 was not treated as his daughter by Purankhan and he had not effected any Hibba, gifting the suit properties in favour of D2; the release deeds Ex.B3 and Ex.B4 were brought about the practicing fraud and misrepresentation on the executants and D2 appropriated the jewels as set out in the plaint, without having any right to do so.
12. A perusal of Ex.B1 the Hibba dated 21.4.1993 would connote and denote that earlier to such writing, Purankhan orally effected Hibba in favour of D2, transferring the immovable suit properties described in the schedule of the plaint, treating D2 as his daughter. Ex.B1 was attested by as many as 8 witnesses.
13. Ex.B3 and Ex.B4 are the registered release deeds dated 17.3.1995 and 4.5.1995, which would ex facie and prima facie demonstrate that the plaintiff and D3, being the brothers of the deceased Purankhan, executed the release deeds, concerning the suit immovable properties, all their claims over it, in favour of D2. At this juncture, it is worthwhile to highlight that registered deeds are having additional factors in favour of the beneficiary under those deeds, to invoke illustration (e) to Section 114 of the Indian Evidence Act, which would indicate that acts of public officials are deemed to have been done in good faith.
14.Here the plaintiff would come forward with a farfetched plea that under the pretext of getting some money from the Government, consequent upon the death of Purankhan, the plaintiff and D3 were asked to sign in some blank papers by D1-the husband of D2 and that the plaintiff and D3 were not appraised of the fact that they were executing the release deeds, relinquishing of their rights over the properties of Purankan. However Ex.B3 and Ex.B4 are not the mere unregistered release deeds.
15. The learned Senior counsel for D2 would appropriately and appositely put forth his argument that no Government is paying any money relating to the natural death of non-Government servant; Ex.B3 and Ex.B4 are registered deeds; at the time of registration, the Registrar also appraises the execution of those deeds by getting signatures/thumb impressions, as the case may be, and in such a case the contention of the plaintiff is nothing but a ploy fraught with falsehood.
16. The learned counsel for the plaintiff would develop his argument that Ex.B3 and Ex.B4-the release deeds purported to have been executed by the plaintiff-Lalkhan and D3-Gudukhan cannot be treated as valid documents creating any right in favour of D2 for the reason that a release deed could be executed only by a person, who is having interest in the property, in favour of another who is having already pre-existing right in the same property, at least to some extent. In support of his contention he cited the following judgments:
(i) An excerpt from AIR 1970 Madras 349-THE CHIEF CONTROLLING REVENUE AUTHORITY, BOARD OF REVENUE, MADRAS, VS. RM.L.RM.L.LAKSHMANAN CHETTIAR, an excerpt from it would run thus:
'3. The essential difference between a conveyance and a release, lies in the fact that, in the latter, there is no transfer or an interest or right to another, who had no pre-existing right in it to any extent. A release of a right or of a claim can only be in favour of a person who had a pre-existing right or claim and by reason of the release the latter's right or claim is enlarged or is made fuller in its content. Kuppuswami v. Arumugha. AIR 1967 SC 1935 quoting from Hutchi Gowder v. Bheema Gowder, AIR 1960 Mad 33 and S.P.Chinnathambiar v. Chinnathambiar, 1953-2 Mad LJ 387 = (AIR 1954 Mad 5) accepted the proposition as correct that a release can only feed title but cannot transfer title or that "reunciation must be in favour of a person, who had already title to estate, the effect of which is only to enlarge the right; renunciation does not vest in a person a title where it did not exist."
(ii) An excerpt from a decision of this Court reported in AIR 1982 Madras 113 CHIEF CONTROLLING REVENUE AUTHORITY, BOARD OF REVENUE, MADRAS, VS. TVL.INCA CABLES (PVT) LTD., MADRAS-4, certain excerpt from it would run thus:
"2. . . . . . S.2(10) of the Indian Stamp Act defines 'conveyance' as follows-
Section 2(1): 'Conveyance' includes a convveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivos and which is noit otherwise specifically provided for by schedule I."
Art 55 of Sch.I to the Stamp Act deals with 'release'. It reads as follows-
"Release, that is to say, any instrument (not being such a release as is provided for by S.23-A) whereby a person renounces a claim upon another kperson or against any specified property . . . . . "
Hence, according to Mr.Venkataswami, the learned Government Pleader, to bring the document within the ambit of a 'release' both the releasor and the releasee must have a pre-existing right in the property released. As far as the present case is concerned, both the releasor and the releasee are separate juristic entitles and the releasee which is a public limited company has no pre-existing right in the properties sought to be released under the deed. The learned Government Pleader cites the decision reported in Chief Controlling Revenue Authority v. Rm.L.Rm.L.Lakshmanan, AIR 1970 Mad 348 (FB) to which one of us was a party. In this decision, the Full Bench has specifically held as follows(at p.349)-
"The essential difference between a conveyance and a release lies in the fact that in the latter, there is no transfer of an interest or right to another, who had no pre-existing righth in it to any extent. A release of a right or of a claim can only be in favour of a person who had a pre-existing right or claim and by reason of the release the latter's right or claim is enlarged or is made fuller in its content. Kuppuswami v. Arumugam, AIR 1967 SC 1395, quoting from Hutchi Gowder v. Bheema Gowder, AIR 1960 Mad 33 and S.P.Chinnathambiar v. Chinnathambiar 1953-2 Mad LJ 387: AIRR 1954 Mad 5 accepted the proposition as correct that a release can only feed title, but cannot transfer title or that renunciation must be in favour of a person, who had already title to estate, the effect of which is only to enlarge the right; renunciation does not vest in a person a title where it did not exist."
Mr.Venkataswami also cited the decision in the matter off Hiralal Navalram, (1908) ILR 32 Bom 505 wherein a Full Bench of the Bombay High Court has held that where by a document, the executing party, purporting to be entitled to a share in a going Pressing Factory, transfers absolutely the whole of that share to the other person interested in the factory in consideration of a certain sum, the document is a conveyance on sale of property. The principle of the two decisions cited supra will clearly apply to the facts of this case and as such, we do not find any difficulty in construing the document as a conveyance."
(iii) An excerpt from 1968 Mad 159 THE CHIEF CONTROLLING AUTHORITY, REFERRING OFFICER V. RUSTORRN NUSSERWANJI PATEL, would run thus:
"4. The question that falls to be decided by us is whether this instrument must necessarily be construed as amounting to a conveyance, and assessed for stamp as such, or could be accepted as a release under Article 55 of Schedule I. It ius not in dispute that the nomenclature is not decisive nor the language used which the parties may choose to employ in framing the document. What is decisive is the actual character of the transaction, and the precise nature of the rights created by means of the instrument."
17. The perusal of the aforesaid decisions would leave no doubt in the mind of the Court that a release deed is having the effect of relinquishing a person's right in a property in favour of one other person, who is already having pre-existing right in the same property; as a corollary it follows that a release deed cannot be executed as against the 3rd parties, who are totally unconnected with the suit property earlier.
18. The learned Senior counsel for D2 would cite various decisions so as to highlight the legal significance of release deeds, an excerpt from AIR 1967 SCC 1395- KUPPUSWAMI CHETTIAR VS. A.S.P.A.ARUMUGAM CHETTIAR AND ANOTHER, an excerpt from it would run thus:
"6. Counsel next submitted that a release can only enlarge an existing title of the releasee, and there can be no release in favour of a releasee who has no interest in the property. He relied on the following observation in Hutchi Gowder v. Bheema Gowder, 1959-2 Mad LJ 324 at p.337:(AIR 1960 Mad 33 at p.41). "A release deed can only feed title but cannot trainsfer title" and another observation in S.P.Chinnathambiar v. V.R.P.Chinnathambiar, 1953-2 Mad LJ 387 at p.391 (AIR 1954 Mad 5 at p.8) 387 at p.391: (AIR 1954 Mad 5 at p.8) "Renunciation must be in favour of a person, who had already title to the estate, the effect of which is only to enlarge the right. Renunciation does not vest in a person a title here it did not exist . . ......Now, it cannot be disputed that a release can be usefully employed as a form of conveyance by a person having some right or interest to another having a limited estate, e.g., by a remainderman to a tenant for life, and the release then operates as an enlargement of the limited estate. But in this case, we are not concerned with a release in favour of the holder of a limited estate. Here, the deed was in favour of a person having no interest in the property, and it could not take effect as an enlargement of an existing estate. It was intended to be and was a transfer of ownership. A deed called a deed of release can, by using words of sufficient amplitude transfer title to one having no title before the transfer. The cases replied upon by counsel are not authorities for the proposition that the operative words of a release deed must be ignored. In S.P.Chinnathambiar's case. 1953-2 Mad LJ 387: (AIR 1954 Mad 5) the document could not operate as a transfer, because a transfer was hit by S.34 of the Court of Wards Act, and viewed as a renunciation of a claim, it could not vest title in the release. In Hutchi Gowder v. Bheema Gowder, 1959-2 Mad LJ 324: (AIR 1960 Mad 33) the question was whether a covenant of further assurance should be enforced by directing the defendant to execute a release deed or a deed of conveyance, and the Court held that the defendant should execute a deed of conveyance. These decisions do not lay down that a deed styled a deed of release cannot, in law, transfer title to one who before the transfer had no interest in the property."
19. In fact, the earlier decisions of the Madras High Court are found explained therein. Nonetheless a document is nomenclatured as 'release', if the recitals therein are capable of transferring interest from the releasor in favour of the releasee, it would have its own effect of transferring title from the releasor to releasee also. Keeping in view the aforesaid legal principle in mind, Ex.B3 and Ex.B4 should be analysed.
20. Ex.B3 is nomenclatured as release deed dated 17.3.1999, executed by D3-Gudukhan and the plaintiff-Lalkhan in favour of D2, without specifying any definite property therein. The learned counsel for the plaintiff would draw the attention of this Court to the recitals therein, which would speak to the effect that all the three parties, namely, releasors and the releasee were in joint possession and enjoyment of the suit property and that the releasors expressed their desire to release their right over the suit property, and develop his argument that D2 was not the owner of the property as per Muslim Law to the share of the deceased Purankhan-the brother of the releasors and hence, such release deeds would not confer any right. It is therefore just and necessary to analyse the point as put forth by the learned counsel for the plaintiff.
21. Certain clauses in Ex.B3 are extracted here under for ready reference.
@j';fs; jfg;gdhuhd fhy";brd;w v/g[uhdfhd; rhag[k;. eh';fSk; cld; gpwe;j rnfhjuj;fs;/ tw1y; mjpfhu moj;jy;/ ehk; ,Jtiu ek; bghJ Flk;gj;jpw;F ghj;jpakhd bghJ Flk;g!;jhth r;';fk brhj;Jf;fis bghJthft[k;. Tl;lhft[k;. mDgtpj;Jte;njhk;/ v';fSf;F tajhfptpl;l fhuzj;jhy; ek; bghJ FLk;gj;jpw;F ghj;jpakhd bghJ FLk;g g{uh!;jhthj; r';fk brhj;Jf;fis eh';fs; ,dpnkYk; bghJthft[k;. Tl;lhft[k; mDgtpf;f tpUk;ghjjhYk; ek; fpuhk g";ghaj;jhh; Kot[g;go eh';fSk; rk;kjpj;J bghJ FLk;g g{uh!;jhth r';fk brhj;Jf;fspy; v';fSf;Fs;s ghf ghj;jpaijf;fhf ,d;W j';fsplk; U:/5000-= U:gha; Ie;jhapuk; buhf;fkha; bgw;Wf;bfhz;L ,e;j bghJ tpLjiy Mtzk; vGjpf; bfhLj;Jslnshk;/ ,d;W Kjy; c& j';fs; jfg;gdhh;. fhy";brd;w v/g[uhd;fhd; rhag[f;F brhe;jkhd g{uh!;jhtu r';fk brhj;Jf;fspy; v';fSf;fhtJ v';fs; thhpRfSf;fhtJ gpd;dpl;L vt;tpjghj;jpaKk; chpika[k; ,y;iy/ brhj;Jf;s; j';fs; mDnghfj;jpnyna cs;sJ/@
22. A bare perusal of the extract from Ex.B3 would amply make the point clear that without specifying any specific property, but referring to the entire properties of deceased Purankhan and by referring D2 as the daughter of Purankhan, presumably, taking her as the daughter of Purankhan, because in reality D2 happened to be the brother's daughter of Purankhan and brought up by Purankhan as his daughter, D3 and plaintiff relinquished their rights, admitting that the releasors and the releasee were in joint possession of all the properties of Purankhan. It is therefore clear that Ex.B.3 is having the effect of relinquishment of the right of the releasors in favour of the releasee in consideration of they having received a sum of Rs.5000/- from the releasee. At this juncture, I would like to highlight that there is no hard and fast Rule that a release deed should not be general in nature, without referring to any specific property. The learned counsel for the plaintiff would refer to the The Indian Stamp Act Article 55 and put forth his argument that the Indian Stamp Act contemplates specification of properties. Such an argument, in my opinion is neither here nor there. The Indian Stamp Act does not say that a release deed should contain a schedule of property relating to which the release is contemplated.
23. It is therefore clear that nowhere it is stated that a release deed should contain in it specific description of property. Here the above extract from Ex.B3 would speak volumes that the releasors unequivocally and unambiguously stated that they are relinquishing their rights relating to the deceased Purankhan's properties, and it is not as though Purankhan's properties are not capable of being identified and the facts of this case would clearly exemplify that the suit immovable properties belonged to Purankhan and it is quite obvious that keeping this alone in mind the releasors in Ex.B3 relinquished their rights. This Court is not concerned with the actual Stamp duty collected by the authorities concerned. It is the look out of the Officials concerned to find out as to whether appropriate stamp duty was paid or not and no more elaboration in this regard is required, as it is quite obvious.
24. It is pertinent to note that the releasors themselves admitted and acknowledged that Purankhan treated D2 as his daughter and to that effect in Ex.B1 Purankhan stated the same. Correspondingly, the releasors also admitted the status of D2. After the plaintiff and D3 having admitted the legal status of D2, cannot now veer round and take any plea quite antithetical to what they committed themselves in black and white.
25. In this view of the matter, the entire argument of the learned counsel for the plaintiff fails for the reason that Ex.B3 and Ex.B4 cannot be construed as release deeds executed by releasors to a 3rd party unconnected with the suit property, but such release deeds were in favour of D2 who already became owner as per Hibba. As revealed by Ex.B1-Hibba, Purankhan himself, during his life time, treated D2 as his daughter and after the death of Purankhan, Purankhan's brothers, namely, the plaintiff and D3 accepted such status of D2 and in such a case by no stretch of imagination it could be stated that D2 had no pre-existing right in the suit property as donee of it. In the light of the decision of the Honourable Apex Court reported in 1967 SCC 1395, it is crystal clear that as per Ex.B3 and Ex.B4, after receiving consideration of Rs.5000/- each they released their right in favour of D2. From one other angle also the matter has to be viewed. Ex.B3 and Ex.B4 could rightly be termed as documents emerged by way of ex abundanti Cautela. Because already under Hibba-the oral gift effected by Purankhan in favour of D2, she became the owner and by way of abundant caution, she got the release deeds also from them and in such a case it can not be stated that as on the date of emergence of Ex.B3 and Ex.B4 she was not at all having any interest in the suit property. As such, in this factual matrix, from any angle if the matter is viewed it is crystal clear that Ex.B3 and Ex.B4 cannot simply be classified or labelled as invalid or void documents, as the plaintiff would try to project them erroneously.
26. In Ex.B3 and Ex.B4 the releasors also admitted that Purankhan's properties, so to say the immovable properties referred to in the schedule of the plaint as on the date of Ex.B3 and Ex.B4, was in the possession of D2. It is therefore clear that Ex.B3 and Ex.B4 are valid documents executed by the releasors in favour of the releasee.
27. Ex.B4 has got some special features, wherein, the parties are the same as in Ex.B3 release deed. In this Ex.B4 registered release deed dated 4.5.1995 unlike in the earlier Ex.B3 deed, the Hibba effected by Purankhan in favour of D2 is referred to. Over and above that in Ex.B4, the executants expressed their mind to accept, without any reservation, the said Hibba effected by Purankhan in favour of D2. No doubt in this Ex.B4 also the schedule of property is not found incorporated but on the other hand, the executants clearly spelt out that Purankhan gifted all his properties in favour of D2 by way of Hibba; an excerpt from Ex.B4 would run thus:-
VERNACULAR (TAMIL) PORTION DELETED
28. A bare perusal of the extract of Ex.B4 would dispel any doubt which might arise relating to non specification of the schedule in Ex.B4 for the reason that the above extract would clearly exemplify that all the immovable properties of Purankhan which are found described in the schedule of the plaint, over which there is no doubt, were transferred by way of Hibba and that in relation to those properties only, the executants of Ex.B4 relinquished their rights. In such a case, absolutely there is no rhyme or reason on the part of the plaintiff to contend that Ex.B3 and Ex.B4 should be discarded for want of schedule of property appended or annexed to those release deeds.
29. The next attack of plaintiff as against Ex.B3 and Ex.B4 is on the footing that the plaintiff and Gudukhan were bamboozled and beguiled, misrepresented and misinformed, side tracked and stultified by D1 and D2 and obtained their signatures/thumb impressions in Ex.B3 and Ex.B4 as though certain money was being paid to them by the Government in connection with the death of Purankhan.
30. As has already been observed by me supra, such a plea on the side of the plaintiff is not even worth the paper on which it is found written. No man having head over shoulder would ever countenance and uphold such sort of plea, being pressed into service as against Ex.B3 and Ex.B4. It is not as though Ex.B3 and Ex.B4 are mere unregistered documents. In Ex.B3 the consideration of Rs.5000/- is contemplated and in Ex.B4 another sum of Rs.5000/- is contemplated and accordingly, the executants received on two occasions, a sum of Rs.5,000/- each. To the risk of repetition without being tautalogous, I would like to reiterate that in case of registered documents, the presumption of good faith on the part of the registering authority could be presumed also, unless it is rebutted. My mind is redolent with the following decision of the Honourable Apex Court, reported in 2006(2)LW 658 SC [Pentakota Satyanarayana & others vs. Pentakota Seetharatnam & others], certain excerpts from it would run thus:
"25. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator.
26. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus of the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that popounders themselves took a prominent part in the execution of the Will which will confer on them substantial benefits. In the instant case, propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P.Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as he was not alive at the time of trial. All the witnesses deposed that they had signed as identifying witnesses and that the testator was in sound disposition of mind. Thus, in our opinion, the appellants have discharged their burden and established that the Will in question was executed by Srirammurthy and Ex.B9 was his last will. It is true that registration of the Will does not dispense with the need of proving, execution and attestation of a document which is required by law to be proved in the manner as provided in Section 68 of the Evidence Act. The Registrar has made the following particulars on Ex.B9 which was admitted to registration, namely, the date, hour and place of presentation of document for registration, the signature of the person admitting the execution of the Will and the signature of the identifying witnesses. The document also contains the signatures of the attesting witnesses and the scribe. Such particulars are required to be endorsed by the Registrar along with his signature and date of document. A presumption by a reference to Section 114 of the Evidence Act shall arise to the effect that particulars contained in the endorsement of registration were regularly and duly performed and are correctly recorded. In our opinion, the burden of proof to prove the Will has been duly and satisfactorily discharged by the appellants. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. In such circumstances, the onus shift to the contestant opposing the Will to bring material on record meeting such prima facie case in which event the onus shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same.
27. It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Others, (2005) 2 SCC 784 = 2005-2-L.W.89. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case.
28. Mr.Narsimha, learned counsel for the respondents submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the Will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C.Sidhan (Dead) (2004) 2 SCC 321 = 2004-2-L.W.852. certain excerpts from it would run thus:
31. It is therefore clear that Ex.B3 and Ex.B4 the registered documents are having additional evidentiary value, in view of the presumption attached to them. It is also pertinent to point out that Ex.B3 was attested by as many as 8 persons.
32. It is not known as to why the plaintiff has not chosen to examine on his side any one of the attesting witnesses so as to highlight his case. The plaintiff examined himself as P.W.1 and none else. On the other hand, on the defendants' side, in addition to D2 having examined herself as D.W.1, examined other witnesses also. D.W.3-R.K.Dhanasekaran is the scribe of Ex.B1 as well as Exs.B3 and Ex.B4 and he would in unambiguous and unequivocal terms detail and delineate, explain and expatiate that those deeds are genuine deeds, which he scribed at the instance of the persons concerned and absolutely there is nothing to doubt his testimony.
33. D.W.4-Sadhathkhan who deposed before the Court is one of the attesting witnesses in Ex.B4 and he spoke about the facts relating to this case in a clinching manner. D.W.5-Pandian is one of the attesting witnesses to Ex.B3, who also portrayed and narrated the relevant facts attached to Ex.B3. It is therefore crystal clear that strictly as per the Indian Evidence Act, D2, by examining the scribe of the documents concerned, as well as the attesting witnesses, proved without any speck or shred of doubt that the plaintiff and Gudukhan voluntarily and volitionally executed Ex.B3 and Ex.B4. D2 never intended to fob off the onus probandi to the plaintiff at the initial stage itself, but she discharged her burden of proving the genuineness of Ex.B3 and Ex.B4, whereupon the burden of proof, as it is ambulatory, got shifted to plaintiff, who miserably failed to produce any iota or exiguous extent of evidence in support of his plea. Hence, in view of the clinching evidence available on record, it is clear that the plaintiff cannot invoke the doctrine of non est factum and the decisions cited on the side of the plaintiff have become only academic for the reason that those decisions are not fitting into the facts of this case.
34. The learned counsel for the plaintiff cited the following decisions:-
1992(2) L.W.209 K.VARADHAN VS. 1.pATTAMMAL(DIED) AND FOUR OTHERS, certain excerpts from it would run thus:
"7. It is useful to extract from the judgment of the learned single Judge the authorities on this principle, not many but useful only such as the case of Gallie v. Lee. That was a case in which a 78 year old widow who had a lease hold interest in a house, gave the deeds to her trusted nephew. She intended to make a gift to him to take effect immediately. She knew that her nephew wished to raise money on the house and that L, her nephew's business associate, was to collaborate with the nephew in raising money on the house.
"In June, 1962, L asked her to sign a document. She had broken her spectacles and could not read it. She asked what it was and L told her that it was a deed of gift of the house to her nephew. She executed it in that belief, and the nephew witnessed the execution, it being part of his arrangements with L, that L should raise money on the house and repay it to the nephew by instalments. The document signed was in fact an assignment of the house by her to L for 3,000/-. The 3,000/- was never paid for intended to her. L, having obtained the deeds and a reference as to his reliability from the nephew, mortgaged the house for 2000 to a building society, but used the money so raised to pay his debts and defaulted on the mortgage instalments. The building society sought to obtain possession of the house.
G.at the nephew's instigation, began an action, in which she pleaded non est factum, against L, and the building society and asked for a declaration that the assignment was void and that the title deeds should be delivered to her. The Judge found that G did not read the document, that L represented it to her as a deed of gift to the nephew; that she executed it in that belief; and that a sale or gift to L was something which she did not and would not ever have contemplated; and he held that the plea of non est factum was established and granted declaration asked for."
The Court of appeal reversed the decision. Certain passages occurring in the judgment are vital to the case on hand. At page 1016 Lord Reid states thus:-
"The plea cannot be available to anyone who was content to sign without taking the trouble to try to find out at least the general effect of the document. Many people do frequently sign documents put before them for signature by their solicitor or other trusted advisers without making any inquiry as to their purpose or effect. But the essence of the plea non est factum is that the person signing believed that the document he signed had one character or one effect whereas in fact such a belief unless he had taken steps or been given information which gave him some grounds for his belief. The amount of information he must have and the sufficiency of the particularity of his belief must depend on the circumstances of each case."
The passage relied on by Mr.Srinivasan, learned counsel for the respondent does not help him in any manner. On the contrary, the following observations of Lord Reid are important.
"We find in many of the authorities statements that a man's deed is not his deed if his mind does not got with his pen".
No doubt, Lord Reid stated that, that is far too wide. But that observation that "That is far too wide" will have to be applied only to the facts of the case before the House of Lords. Again at page 1021, Viscount Dilhorna observes as follows:-
"What are the matters which have to be established for the plea to succeed? First, in my opinion, it must be shown that the document signed was radically different in character from that which the signor thought it was".
Lord Wilberforce at page 1027 holds as follows:-
"As to persons who are illiterates, or blind or lacking in understanding, the law is in a dilemma. On the one hand the law is traditionally, and rightly, ready to relieve them against hardship and imposition. On the other hand, regard hash to be paid to be position of innocent third parties who cannot be expected, and often would have no means, to know the condition or status of the signor. I do not think that a defined solution can be provided for all cases. The law ought in my opinion, to give relief if satisfied that consent was truly lacking but will require of signors even in this class that they act responsibly and carefully according in their circumstances in putting their signature to legal documents."
8. Courts in India have on the rule of evidence enshrined in Ss.101 and 102 in Chapter VII of the Evidence Act, particularly incases of women in India who in some parts and some communities are pardanashin and in most parts of the country illiterate, for the reason that they transact their business generally through malefolk only, men always dominated women, and women lived a life dominated by man, this being the curse that always surrounded womenfolk even though law recognised their independent rights, they failed invariably in exercising such rights, accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged misrepresentation and fraud, ask her to prove the misrepresentation and fraud. But not in a case where she being an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to prove her case. Learned single Judge, in our opinion, is right in holding that the Court will not ask the plaintiff to prove the allegation, but demand from the defendant to disprove the allegation of misrepresentation and fraud. The learned single Judge, in our opinion, has taken the correct view of the law on the face that the first plaintiff is an illiterate woman who merely affixed her thumb impression. She is a woman who possibly could not act without help."
35. The said decision is relating to a case pertaining to an illiterate women who executed the deed. A mere perusal of it would demonstrate as to how the doctrine of non est factum in such deserving circumstances was applied in that case. By no stretch of imagination that could be applied in this case in view of the discussion supra that disinterested witnesses attested Ex.B3 and not once but twice the plaintiff and D3 executed two registered release deeds.
36. Regarding the principle of non est factum, the learned counsel for the plaintiff also cited one other decision of this Court reported in 2000(II) CTC 486-Minor Palanivelu and 2 others vs. Sadasiva Padayachi(died) and 7 others, which is relied on by D2 also and there is no quarrel over the proposition of law, but that concept cannot be pressed into service, in the facts and circumstances of this case.
37. The learned counsel for D2 would draw the attention of this Court to Ex.B1 relating to Hibba and develop his argument that Ex.B1 emerged subsequent to the Hibba effected by Purankhan in favour of D2; the properties which were gifted orally by Purankhan in favour of D2 are found spelt out and the said Ex.B1 emerged for the purpose of remembrance and to dispel hazy notion relating the oral gift. Whereas, the learned counsel for the plaintiff would put forth the point that the recitals in Ex.B4 would be antithetical to the reality as found in Ex.B1 for the reason that in Ex.B1 the description of immovable properties are found set out, whereas, in Ex.B4 it was stated as though Ex.B3 is bereft of details of properties.
38. I am the considered opinion that simply because in Ex.B4 it is found stated that the details of properties are not found out in Ex.B1, the entire Ex.B1 would not attract the principle of non est factum and for that matter Ex.B4 would not become void also. Such a recital in Ex.B4 would not nullify the reality of actual specification as found spelt out in Ex.B1.
39. D2 in addition to she having spoke about the oral Hibba and the subsequent emergence of Ex.B1 examined on her side D.W.2-Kasaikhan, who attested Ex.B1. D.W.2 expatiated and narrated, put forth and projected as to what actually transpired and occurred at the time of emergence of Ex.B1. According to him, it was the deceased Purankhan, who dictated and expressed the versions to the scribe D.W.3-R.K.Danasekaran and accordingly, it was drafted. D.W.2 also without any embellishment or exaggeration, artificiality or hesitation spoke about the facts relating to Ex.B1. When an attempt was made during cross-examination to pull him down by trying to get from his mouth about the fact as to when actually oral Hibba took place, he clearly withstood the cross-examination and answered as under:-
@gp/1 gj;jpuk; vGjpa md;W jhdk; bfhLf;fg;gltpy;iy/ mij Vw;bfdnt bfhLj;jhfptpl;lJ/ Vw;fdnt bfhLj;j tpc&ak; vdf;F bjhpahJ/ bfhLj;J tpl;ljhf mth; brhd;dhh;/ fpgh bfhLg;gJ vg;go vd;W vdf;F bjhpahJ/@
40. As such D.W.2 proved himself a witness of truth by speaking the bare facts that he did not know personally about the oral Hibba; however that oral Hibba did not take place on the date of emergence of Ex.B1, but he heard Purankhan telling about the fact that he already effected Hibba. In fact, the case of the D2 is that during the month of March itself Hibba was effected and during the Month of April 1994, Ex.B1 emerged. Had D.W.2 wanted to plainly support D2 by uttering out a barefaced, he would have been falsely eloquent and deposed as though he knew about oral Hibba etc. In the registered deeds Ex.B3 and Ex.B4 the executants clearly and categorically accepted about the Hibba i.e. oral gift effected by Purankhan and they cannot have a volte face and turn turtle from their previous commitments in the form of Ex.B3 and Ex.B4. It is therefore clear that Purankhan effected the oral gift during his life time in favour of D2 validly.
41. Learned counsel for D2 would cite the following decisions relating to gift as contemplated in Mahomedan law:-
(I) AIR 1964 SC 275 VALIA PEEDIKAKKANDI KATHEESSA UMMA AND OTHERS V. PATHAKKALAN NARAYANATH KUNHAMU;
(II) AIR 1981 KERALA 176 P.KUNHEEMA UMMA V. P.AYISSA UMMA AND OTHERS;
(III) 2001(II) T.L.N.J. 57 A.ABDUL RAHIM VS. JULAIGA BEEVI AND ANOTHER;
(IV) AIR 1981 SUPREME COURT 1113 M.M.QUASIM V. MANOHAR LAL SHARMA AND OTHERS.
The gist and kernal, the warp and woof of those decisions would be to the effect that the donor in unequivocal terms should express his desire to gift the property concerned in favour of the donee and also he should deliver the possession to the donee and then only Hibba could be taken as the one effected validly.
42.The learned counsel for D2 by placing reliance on the deposition of D.W.1 would put across his argument that D2 herself stated that she was not in possession of the suit property. D2 in her deposition would clearly state that the suit properties are standing in her name in the Revenue records and she has been paying kist. Exs.B5 to Ex.B29 are the pattas, tax receipts and other documents issued by the authorities concerned in the name of D2. In Ex.B3 and Ex.B4 the plaintiff along with Gudukhan categorically admitted the possession of D2 and in such a case, they cannot be allowed to question the validity of Hibba on the ground that the immovable property was not in her possession and that Purankhan did not deliver possession under Hibba so as to complete the oral gift.
43. The learned counsel for the plaintiff would argue that the recitals in Ex.B3, Ex.B4 and Ex.B9 would be antithetical to the case of D2 that she became the absolute owner.
44. To the risk of repetition, without being tautalogous, I would hold that those deeds Ex.B3, Ex.B4 and Ex.B9 emerged based on the concept ex abundanti Cautila. By way of abundant caution a party could get executed in one's favour any number of documents so as to buttress and fortify one's title to a property and in the process of getting executed such documents, it is no wonder incommensurate with the nature of those documents got executed, the recitals might figure and that could not be taken undue advantage of by the plaintiff herein in the facts and circumstances of this case. Accordingly, point Nos.(i) and (ii) are answered in favour of D2 against the plaintiff.
Point No.(iii)
43. The plaintiff filed C.M.P.No.1319 of 2008 for the purpose of adducing additional evidence by producing the certified copy of the sale deed dated 23.3.2006, which was executed by D3 in favour of D2, so as to highlight the point that during the pendency of this appeal, D3 executed a registered sale deed dated 23.3.2006 in respect of his share in the suit property and that itself would render D2's plea ineffective.
44. Whereas, the contention of D2 is that by way of abundant caution, the sale deed also was got executed from D3 and that would not in any way be treated against D2, who is having a case of her own and further, the recitals in the sale deed, which emerged during the pendency of the suit, would exemplify the fact that Purankhan acquired the property out of his own income; he had no issues of his own, the D2, being the daughter of his younger brother Nabikhan, was treated as his daughter by Purankhan; that Purankhan effected Hibba in favour of the D2 and the recitals in the said sale deed would also refer to Ex.B3 and Ex.B4. Accordingly, the learned counsel for the D2 would submit that the sale deed is in no way would cut at the root of the D2's case.
45. I am of the considered opinion that inconcinnity with the trite proposition of law, any development which occurred during the pendency of the suit in connection with the subject matter, the Court can be taken note of. The recitals as found set out supra in the said sale Deed would be of use for deciding this lis and in such a case the plaintiff is permitted to file the said document and get it marked as Ex.A9 in continuation of the exhibits marked on the plaintiff's side. Accordingly this point is decided permitting additional evidence to be adduced on plaintiff's side.
46. Point No.(iv):The learned counsel for D2 by placing reliance on the following decisions:
(i) AIR 1960 MADRAS 1 (V 47 C 1) MUPPUDATHI PILLAI VS. KRISHNASWAMI PILLAI AND OTHERS;
(ii) AIR 1968 SUPREME COURT 956 (V 55 C 190) NINGAWWA V. BYRAPPA SHIDDAPPA HIREKNRABAR AND OTHERS;
(iii) 2005(5) CTC 190 CHELLAKANNU, SON OF PICHAMUTHU VS. KOLANJI.
would advance his argument that the plaintiff should have asked for cancellation of Ex.B3 and Ex.B4 as he happened to be one of the executants of them and in the absence of such proper payment of Court fee as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, the suit is not maintainable.
47. Whereas, the learned counsel for the plaintiff would try to torpedo such an argument put forth on the side of the D2 by arguing that Ex.B3 and Ex.B4 are the release deeds, which would not figure in the encumbrance certificate and in such a case the question of dispelling the cloud on the title by praying for getting those release deeds set aside would not arise; those deeds are ab initio void as there could not be any execution of release deeds in favour of the 3rd party like D2, who had no pre-existing right over the property.
48. My discussion and consequent finding supra would clearly exemplify that Hibba was validly executed by Purankhan and it was acted upon; whereupon the plaintiff and D3 executed release deeds by way of abundant caution, so as to confirm such Hibba in favour of D2 and Purankhan treated D2 as his daughter and consequently the contention of the plaintiff that the release deeds Ex.B3 and Ex.B4 should be taken as void documents and the plaintiff was justified in not valuing the suit as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and paying Court fee there under cannot be countenanced.
49. I am fully aware of the fact that the valuation and payment of Court fee would depend upon the averments in the plaint. Here I would like to point out that mere ignoring of Ex.B3 and Ex.B4 by the plaintiff, without any basis, would not enable him to wriggle out of the purview of Section 40 of the Court Fee Act. No litigant is permitted to absolve himself at his own whims and fancies, simply by couching the wordings in the plaint so as to avoid the proper valuation and payment of court fee.
50. Here in the plaint itself the plaintiff clearly and candidly referred to the release deeds executed by him; however, he would try to camouflage and conceal his knowledge about the purport of release deeds by alleging as though he was under the belief that he was signing in those deeds for the purpose of getting some succor from the Government consequent upon the death of Purankhan. Mere such allegations would not take out the case of the plaintiff from the purview of Section 40 the Tamil Nadu Court Fees and Suits Valuations Act.
51. At this juncture I would like to point out that if a sale deed is against a statute or antithetical to the prohibitory clauses contained in the statute, then the document could be taken as a void one and could be ignored. But ex facie and prima facie Ex.B3 and Ex.B4 which are registered deeds can no stretch of imagination be treated as void documents by the executant himself and plead for valuing the suit ignoring Section 40 of the Act.
52. The learned counsel for D2 would lay stress upon the decision of this Court reported in 2005(5) CTC 190 CHELLAKANNU, SON OF PICHAMUTHU VS. KOLANJI. among the three decisions cited supra by him, certain excerpts from it would run thus:-
"12. The word "Cancellation" implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the Suith is one for cancellation. In the present case, when the plaintiff attacks the Sale Deeds as having been obtained from him under fraud and mis-representation the plaintiff cannot seek for any further relief without setting aside the sale Deeds.
13. Contending that the Plaint averments are to be the guiding factor in determining the question of Court Fee, learned counsel for the Revision petitioner has relied upon the decisions Neelavathi and others v. N.Natarajan and others, AIR 1980 SC 691 and Virudambal and four others v. Kandasamy and our others, 200(2) CTC 263. Those cases relate to partition suits. In partition suits, it is settled law that the question of Court fee must be considered in the light of the allegations made in the plaint and the decision cannot be influenced either by the pleas in the Written statement or the final decision of the suit on merits. The above principles applicable in a partition suit cannot be applied to the case in hand where astuteness is employed by the plaintiff to evade payment of proper Court Fee. The plaint allegations cannot be accepted as it is. As discussed earlier, though the plaintiff has averred that the sale Deeds are not binding on him, being a party to the suit, in substance the suit is one for cancellation of the sale Deeds.
14. In support of his contention that Court Fee payable is under Section 40 of the Act only in a suit for cancellation of the document, learned counsel for the Revision Petitioner has relied upon the decision Vellayya Konar and another v. Ramaswami Konar and another, AIR 1939 Mad.894, wherein it has been held that the Court fee is payable only under Article 17-A and not under Section 7(iv-A) (Court Fees Act, 1870). The said suit was brought by Creditor under Section 53 of the Transfer of Property Act for declaration that an alienation by the debtor is void against creditors. In other words, the said suit has been filed by the creditor, who was not a party to the documents to the alienation in question. In that view of the matter, it was held that the Court fee is not payable under Section 7(iv-A) of the said Act. The case in hand stands on a different footing. The plaintiff, who is a party to the document himself seeks to get rid of the documents executed by him and hence, Court fee is to be paid under Section 40 of the Act."
It is therefore clear that the cited decision of this Court is clearly applicable in the facts of this case. Accordingly point No.(iv) is decided that the suit was not properly valued and correct Court fee was not paid by incorporating the necessary prayer for cancellation of Ex.B3 and Ex.B4.
Point No.(v):
53. The learned Senior counsel for D2 would correctly and appositely highlight that the trial Court without having any evidence much less reliable evidence simply decided the issue relating to 150 sovereigns of gold jewels.
54. The plaint averments at paragraph 5 are to the effect that Purankhan had 150 sovereigns of gold jewels and pledged the same with the 6th defendant, namely, Uzhavarpannai Kooturavu Sangam and that the said institution returned those 150 sovereigns of gold jewels to D1 and D2 without taking steps to get succession certification in favour of either D1 or D2. D.W.7-Venkatraman, the official of D6-Uzhavarpannai Kooturavu Sangam would depose that Purankhan, during his life time, did not pledge 150 sovereigns of gold jewels, but he pledged only two bangles weighing 16 grams and obtained a sum of Rs.4,500/-. However, during cross he would state that he did not produce the relevant records. D.W.6-Piarojan an official of D4 would depose that after the death of Purankhan, amounts due under his account were handed over back to D2 based on Ex.B.34-the legal heirship certificate. He would also speak about the jewels pledged by Purankhan but no particulars furnished, despite time granted to that witness, and simply because of the non production of relevant records by D4 and D6 relating to jewels, D2 cannot be mulcted with the liability. Furthermore, it is also clear that the onus of proof is on the plaintiff to prove the case, but not on D2 and the plaintiff cannot fob off the onus probandi on D2. Accordingly, this point is decided in favour of D2 as against plaintiff. The trial Court, without adhering to all the salient features simply assumed and presumed the facts without au fait with law governing the subject.
55. Point No.(vi): In view of the ratiocination adhered to in deciding the aforesaid points the judgment and decree of the trial Court are set aside and the original suit filed by the plaintiff is dismissed.
56. In the result, this appeal is allowed. No costs.
Msk To The I Additional Subordinate Judge, Villupuram