Madras High Court
A.Anthony Pushpam Ammal vs Rev. Mother Superior on 4 December, 2008
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 04/12/2008 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM SECOND APPEAL No.1016 of 1997 A.Anthony Pushpam Ammal ... Appellant/ 2nd Plaintiff Vs. 1.Rev. Mother Superior, St.Joseph's Leprosy Home Arokiapuram, Tuticorin. 2.The Tuticorin Diocesan Association, through its Secretary and Procurator, Tuticorin. ... Respondents/ Defendants Second appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 22.01.1997 passed in Appeal Suit No.129 of 1993 by the Subordinate Court, Tuticorin, confirming the judgment and decree dated 30.04.1993 passed in Original Suit No.533 of 1990 by the Principal District Munsif Court, Tuticorin. !For appellant ... Mr.K.Srinivasan ^For 1st respondent ... Mr.M.Panner Selvam For 2nd respondent ... Mr.M.Panner Selvam for Mr.Dominique :JUDGMENT
Challenge in this second appeal is to the concurrent judgments passed in Original Suit No.533 of 1990 by the Principal District Munsif Court, Tuticorin and in Appeal Suit No.129 of 1993 by the Subordinate Court, Tuticorin.
2.The deceased first plaintiff has instituted Original Suit No.533 of 1990 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as defendants.
3.It is averred in the plaint that the suit property is the absolute property of the first plaintiff and the same is originally belonged to one Sri Sankararameswara Thevasthanam. The first plaintiff has enjoyed the same. The suit village has been taken over by the Government under Minor Inam Abolition Act, 1963 and subsequently a patta has been granted in the name of the first plaintiff. The husband of the first plaintiff has managed the suit property and after his demise, the first plaintiff has come to know that the defendants are claiming title to the suit property. The first plaintiff has issued a legal notice dated 09.04.1990 and the first defendant has given a false reply notice. Under the said circumstances, the present suit has been instituted for the reliefs indicated supra.
4.It is averred in the written statement filed by the first defendant that the first plaintiff has sold the suit property in favour of one Joseph Roche on 26.06.1959 and after execution of sale deed dated 26.06.1959, the first plaintiff has had no right over the suit property. Therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint and altogether the present suit deserves dismissal.
5.In the written statement filed on the side of the second defendant it is stated that the first plaintiff has already sold the suit property and the same has been purchased by the Joseph Roche in favour of Leprosy Home and there is no merit in the suit and the same deserves dismissal.
6.On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after pondering both the oral and documentary evidence, has dismissed the suit. Against the judgment and decree passed by the trial Court, the second plaintiff as appellant has preferred Appeal Suit No.129 of 1993 on the file of the first appellate Court. The first appellate Court, after hearing both sides and after reappraising the evidence available on record, has dismissed the appeal, whereby and whereunder confirmed the judgment and decree passed by the trial Court. Against the concurrent judgments, the present second appeal has been filed at the instance of the second plaintiff as appellant.
7.At the time of admission of the present second appeal, the following substantial questions of law have been formulated for consideration;
"a)Whether the judgment and decree of the lower appellate Court is liable to be set aside, by reason of its failure to comply with the mandatory provisions under Order 41 Rule 31 C.P.C?
b)Whether on account of casting of burden wrongly, the findings of the Courts below are vitiated?
c)Whether the presumption under Section 90 of the Evidence Act can under such circumstances be drawn to non-suit the plaintiff?
8.The learned counsel appearing for the appellant/second plaintiff has vehemently contended that the suit property is the absolute property of the first plaintiff and it is stated on the side of the defendants that the first plaintiff has executed a sale deed dated 26.06.1959 in favour of one Joseph Roche and the first plaintiff is nothing but an illiterate lady and she has not known the recitals of the said sale deed dated 26.06.1959 and the same has also not been read over and explained to her and the first plaintiff has put her thumb impression without knowing its contents and the Courts below without considering the contentions urged on the side of the plaintiffs, have erroneously non-suited the plaintiffs and therefore, the concurrent judgments passed by the Courts below are liable to be set aside.
9.The learned counsel appearing for the respondents/defendants has also equally contended that on 26.06.1959 the deceased first plaintiff has executed the sale deed in question and it is false to say that without knowing its recitals, the deceased first plaintiff has put her thumb impression and further the sale deed dated 26.06.1959 is 30 years old document and the Court can very well draw presumption available under Section 90 of the Evidence Act, 1872 and further the contentions raised in the argument of the learned counsel appearing for the appellant/second plaintiff have not been mentioned in the plaint and therefore, the Courts below, after assessing all the evidence available on record, have rightly non-suited the plaintiffs and therefore, the judgments and decrees passed by the Courts below are perfectly correct and the same are not liable to be interfered with and further all the substantial questions of law are not at all having substance and altogether the present second appeal deserves dismissal.
10.Before considering the rival submissions made by either counsel, the Court has to look into the documents filed on either side. The specific case of the plaintiffs that the deceased first plaintiff has not executed any sale deed in favour of anybody much less on 26.06.1959 in favour of Joseph Roche. The sale deed in question has been marked as Ex.B1. The opinion of the finger print expert has been marked as Ex.A15, wherein it has been stated that the thumb impression found in the original plaint and vakalath are smudged and therefore, the same cannot be compared with the disputed thumb impression found in Ex.B1.
11.In fact, this Court has closely looked into the thumb impression of the deceased first plaintiff found in original plaint and ultimately found that the thumb impression of the deceased first plaintiff have been put schemingly in the form of smudge thinking that the thumb impression of the first plaintiff would be compared with the thumb impression found in Ex.B1. It is also equally an admitted fact that the service of finger print expert has been utilished only at the instance of the plaintiffs. Therefore, it is quite clear that after putting thumb impression by the deceased first plaintiff in the form of smudge in the original plaint, the service of finger print expert has been utilished at the instance of the plaintiffs. Therefore, it is quite clear that the deceased first plaintiff has not come to the Court with pure and clean hands and the present case is nothing but dupery and on that ground alone, the present case should be summarily thrown out.
12.Now the Court has to look into the rival submissions made by either counsel. The sum and substance of the argument advanced by the learned counsel appearing for the appellant/second plaintiff is that without knowing the recitals of Ex.B1, the deceased first plaintiff has put her thumb impression in Ex.B1 and further the deceased first plaintiff, being an illiterate lady, the recitals of Ex.B1 should be read over and explained to her and the same has not been done in the present case.
13.The learned counsel appearing for the appellant/second plaintiff has accited the following decisions;
a)In 1992 (2) Law Weekly 209 (K.Varadhan Vs. Pattammal (died) and four others) this Court has held that in a case of non-est factum, the onus of proof is not on the plaintiff but on the defendant to prove that there was no misrepresentation or fraud.
b)In 1993 (1) Law Weekly 466 (Chidambaram Pillai and three others Vs. Muthammal and another) this Court has held that in a case of undue influence, a duty is cast upon the Court to scrutinise pleadings and to consider
(i)relationship between donor and donee (ii) whether donee has used that position to obtain unfair advantage and whether it is an unconscionable transaction.
c)In AIR 1937 Privy counsel 274 (Omanhene Kwamin Bassayin Vs. Omanhene Bendentu II) it has been held that where a person not knowing English has affixed his mark to a document written in English language, the onus to prove that the document was properly explained and interpreted to the person affixing his mark so as to make him understand its true import is on the party relying on the document.
d)In AIR 1972 Madras 336 (V 59 C 114) (Ramaswami Jadaya Gounder (died) and another Vs. V.T.Elaiya Pillai and another) this Court has held that onus to prove that the document was properly explained and interpreted to illiterate person affixing his mark so as to make him understand its true import is on the party relying on the document.
14.From the conjoint reading of the decisions accited by the learned counsel appearing for the appellant/second plaintiff, the Court can easily ken that if the plea of non-est factum has been taken on the side of the plaintiff, the entire burden lies upon the defendant to prove that there is no misrepresentation or fraud and further it is made clear to the Court that in a case of undue influence, the Court has to carefully look into the relationship between the parties and also the position of one party so as to obtain unfair advantage and further it is also made clear to the Court that in a case of illiterate person, the entire burden lies upon the person who relies upon a particular document to prove that the same has been read and explained to such illiterate person.
15.In the instant case, the specific contention urged on the side of the plaintiffs is that the deceased first plaintiff has not executed any sale deed in favour of anybody much less on 26.06.1959 in favour of Joseph Roche. It is not the case of the plaintiffs that the deceased first plaintiff has executed Ex.B1 without knowing its recitals and further it is not the case of the plaintiffs that at the time of execution of Ex.B1, the recitals of the same have not been read over and explained to the deceased first plaintiff. Therefore, it is quite clear that without necessary averments in the plaint, the learned counsel appearing for the appellant/second defendant has advanced his argument and also accited the decisions referred to supra so as to veer the attention of the Court.
16.At this juncture, it would be apropos to look into the provision of Order 6 Rule 2(1) of the Code of Civil Procedure, wherein it is stated that every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. Therefore, it is quite clear that every pleading should contain a concise form of material facts. In the instant case, as animadverted to earlier, no averments are found in the plaint to the effect that Ex.B1 has been obtained by fraud, undue influence and also misrepresentation. Further it is not specifically stated that Ex.B1 has been executed by the deceased first plaintiff and at the time of execution, the recitals of Ex.B1 have not been read over and explained to her.
17.In AIR 1967 Supreme Court 878 (Subhas Chandra Das Mushib Vs. Ganga Prosad Das Mushib and others), the Honourable Apex Court has held that in a case of undue influence under Section 16 of Contract Act, 1872, a vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other.
18.In the case on hand, it has already been stated in many places that absolutely no averments made in the plaint to the effect that the deceased first plaintiff has executed Ex.B1 and without knowing its contents, she put her thumb impression and further she has not been made to understand the recitals of Ex.B1. Therefore, it is quite clear that the plea of fraud, misrepresentation and undue influence must be specifically pleaded either in the plaint or in the written statement, otherwise, any amount of evidence or argument is of no use. Further it has already been pointed out that the learned counsel appearing for the appellant/second plaintiff has advanced his argument and also accited authorities mentioned supra without necessary averments in the plaint and under the said circumstances, the entire argument advanced by the learned counsel appearing for the appellant/second plaintiff is of no use.
19.The learned counsel appearing for the respondents/defendants has also accentuated the Court to look into the decision reported in 1997 (3) Law Weekly 824 (Mohamed Abdullah and two others Vs. K.A.M.Anwar Ali and four others) wherein this Court has held that in a case of non-est factum, merely a person is illiterate, it cannot be stated that all the documents executed by her are invalid.
20.In the instant case, as stated in many places, the plea of non- est factum has not at all been averred in the plaint. Therefore, the dictum rendered in the decision reported in 1997 (3) Law Weekly 824 (Mohamed Abdullah and two others Vs. K.A.M.Anwar Ali and four others) squarely applies to the facts of the present case.
21.The specific case of the respondents/defendants is that on 26.06.1959 the deceased first plaintiff has executed Ex.B1. Of-course, it is true that the witnesses found in Ex.B1 have not been examined on the side of the defendants. Ex.B1 has come into existence in the year 1959 and the present suit has been instituted in the year 1990 and therefore, Ex.B1 is 30 years old document.
22.Second 90 of the Evidence Act, 1872 reads as follows;
"Presumption as to documents thirty years old.- Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested."
23.From the close reading of the provision of Section 90 of the said Act, it is made clear to the Court that if any document is thirty years old, the Court can very well draw a presumption as to its execution and also attestation. It is an acknowledged principle of law that for invoking the provision of Section 90, the main criteria is that original document must be filed. In the instant case, Ex.B1 is the original sale deed alleged to have been executed by the deceased first plaintiff in favour of Joseph Roche. Therefore, as per the provision of Section 90 of the said Act, the Court can unflinchingly come to a conclusion that Ex.B1 has been duly executed by the deceased first plaintiff in favour of the said Joseph Roche.
24.Further on the side of the respondents/defendants enormous documents have been filed so as to prove that in the suit property a Leprosy Home is in existence. Since Ex.B1 has been executed by the deceased first plaintiff in favour of Joseph Roche and since in the suit property a Leprosy Home is in existence, it is needless to say that the plaintiffs are not entitled to get the reliefs sought for in the plaint.
25.The Courts below, after taking much pain have concurrently found that the plaintiffs are not entitled to get the reliefs sought for in the plaint and in the view of the foregoing enunciation of both the factual and legal premise, this Court has not found even a flimsy ground to make interference with the well merited judgments passed by the Courts below and further all the substantial questions of law framed in the present second appeal are not having substance at all and altogether the present second appeal deserves dismissal.
26.In fine, the present second appeal deserves dismissal and accordingly is dismissed with costs. The judgment and decree passed in Original Suit No.533 of 1990 by the Principal District Munsif Court, Tuticorin, upheld in Appeal Suit No.129 of 1993 by the Subordinate Court, Tuticorin are confirmed.
gcg To
1.The Subordinate Judge, Tuticorin.
2.The Principal District Munsif, Tuticorin.
3.The Record Keeper, V.R. Section, Madurai Bench of Madras High Court, Madurai.