Madras High Court
Lalitha vs Michael Raj Pillai on 26 September, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 12.09.2018
Pronounced on : 26.09.2018
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
Second Appeal (MD) No.1016 of 2007
1. Lalitha
2. Esther ...Appellants
Vs
1. Michael Raj Pillai
2. Regina
3. Amala
4. Sagaya Mary
5. Chinna Rani
6. Sister Julia
7. Clement ...Respondents
Prayer: The Second Appeal is filed under Section 100 of CPC against
the Judgment and Decree in A.S.No.62 of 2001 dated 23.01.2003 by
the Principal District Judge, Kanyakumari confirming the Judgment and
Decree in O.S.No.145 of 1990 dated 30.03.2001 by the Additional
Subordinate Judge, Nagercoil.
Counsel for Appellants : Mrs.N.Krishnaveni
For M/s.T.R.Rajaraman
Counsel for R1 & R3 : Mr.T.G.Venugopal
for R2 : Mr.Ramesh
For M/s.V.Raghavachari
for R4 to R7 : Mr.K.Guhan
http://www.judis.nic.in
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JUDGMENT
The second and fourth plaintiff in O.S.No.145 of 1990 are the appellants herein. O.S.No.145 of 1990 had been filed by five plaintiffs namely, Navamani Ammal and her four daughters Lalitha, Maria, Esther and Regina against her son Michael Raj Pillai and another daughter who had taken vow as nun, Sister Amala. The said suit had been filed seeking partition and separate possession.
2. It had been stated in the plaint that Maria Nayakam Pillai was the husband of first plaintiff and father of 2 to 5 plaintiffs and the two defendants. The suit schedule properties given as A,B and C were the absolute properties of Michael Raj Pillai, father of Maria Nayakam Pillai. It had been stated that the suit properties were allotted to Maria Nayakam Pillai in a partition deed effected after the death of his father. It has also been stated that he had purchased two other properties shown as D and E schedule properties. It was stated that the first defendant fell into bad ways and later with the help of other relatives and with the financial support of Maria Nayakam Pillai, was sent to London. He sent some money from London which was used to settle http://www.judis.nic.in 3 the family debts and for the marriage of 2 to 5 plaintiffs. Even after his return from London his attitude did not change and he was often threatening the plaintiffs.
3. He filed O.S.No.29 of 1986 against his father Maria Nayakam Pillai. He claimed exclusive title to D and E schedule properties. Maria Nayakam Pillai died on 15.03.1986 pending the suit and the suit was therefore dismissed. It was further specifically stated that first plaintiff's mother was brought forcibly to the house of the first defendant and kept in illegal confinement. She was subjected to torture by the first defendant and by his wife. She was then taken to Idalakudi Sub-Registrar Office. Her life was threatened and she was forced to execute a document with respect to the D and E schedule properties.
4. The disputes continued and consequently the second plaintiff was forced to issue a notice seeking partition of properties. The first plaintiff also cancelled the settlement deed, which she was forced to execute. The first plaintiff claimed 1/3rd share in A,B,C,D,E schedule properties and 2 to 5 plaintiffs claimed 1/6th share in A,B,C,D,E schedule properties. Since the first plaintiff died pending the suit, the http://www.judis.nic.in 4 other plaintiffs sought partition and separate possession of their respective shares.
5.In the written statement filed by the first defendant, it was specifically stated that D and E schedule properties were purchased by the first defendant from the money sent by him from London. He denied the allegations of forcible confinement of the first plaintiff. It had been stated that totally seven properties were purchased and five properties transferred back to his name and his wife's name but two of the properties namely D and E schedule properties were not transferred. He claimed exclusive title over the said two properties. He also filed O.S.No.29 of 1986 against his father. The father did not dispute the claim in the said suit. It was specifically stated that the settlement deed by the first plaintiff was executed out of free Will and consent. It was stated that the suit should be dismissed and it was specifically stated that D and E schedule properties belong to the first defendant and, that the suit should be dismissed with respect to the said properties.
6.The second defendant filed a written statement. She stated that D and E schedule properties belongs to the first defendant. She http://www.judis.nic.in 5 stated that she had renounced the world and has joined as nun. She stated that the plaintiffs have a right to claim partition in A,B and C schedule properties.
7.The first defendant filed an additional written statement. He stated that plaintiffs can be allotted 4/9th share in A,B and C schedule properties.
8. The Subordinate Court, Nagarcoil, on the basis of the above pleadings framed the following issues:
(i) Whether the D and E schedule properties were purchased from the money sent by the first defendant for the benefit of the first defendant by Mari Nayakam Pillai?
(ii) Whether the settlement-cum-release deed executed by the first plaintiff on 24.01.1990 in favour of the first defendant was executed out of free consent?
(iii) Whether the first plaintiff had right to cancel the settlement deed, whether the cancellation deed would bind the first defendant?
(iv) Whether the first plaintiff has right to claim partition in the suit properties?
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(v) Whether the first defendant had put up well motor pumpsets and engine room in the E-
schedule property and if so what is their value?
(vi) To what reliefs of 2 to 5 plaintiff are entitled to?
(vii) Whether orders had to be passed with respect to Costs?
9.The learned Judge framed a further additional issue,
i)Whether the plaintiff are entitled to claim future mesne profits?
10.During trial, the second plaintiff was examined as PW-1 and another witness Lalitha was examined as PW-2. The first defendant was examined as DW-1 and another witness Lazer Pillai was examined as DW-2. The Advocate Commissioner was examined as CW-1. The plaintiff marked Ex.A1 to A8. Ex.A4 dated 24.01.1990 is the release deed executed by the first plaintiff and Ex.A8 dated 13.03.1990 is the cancellation deed. On the side of the defendants Ex.D1 to D39 were marked. Ex.D4 series are letters reflecting amounts sent from London, dated from 16.03.1972 to 16.09.1976. Ex.D7 was certificate issued by http://www.judis.nic.in 7 British Rail Engineering Limited, dated 31.03.1980. The other Exhibits related to expenditure involved, according to the first defendant for improvement of the property. Ex.D19 to D22 were the release deed/ settlement deeds executed by Maria Nayakam Pillai and Navamani Ammal. The first plaintiff with respect to five of the properties. Ex.B32 – B39 were house tax receipts. The report of the Advocate Commissioner was marked as Ex.C1 and the report of Surveyor was marked Ex.C2 and the plan was marked as Ex.C3.
11. On consideration of the oral and documentary evidence, the learned Additional Subordinate Judge, Nagarcoil, by judgment dated 30.03.2001 decreed the suit and held that the 2 to 5 plaintiffs were entitled to an undivided 1/6 share in A,B,C,D and E schedule properties. The learned Judge found that the release deed was forcibly obtained from the first plaintiff and that she had every right to cancel the same and further held that since the properties belonged to the father of the parties, all his children were entitled to an undivided 1/6 share of the properties. The learned Judge also found that the properties were be in the name of the father and consequently held that the first defendant cannot claim any right or title over the properties. The suit was decreed as stated above. http://www.judis.nic.in 8
12. The first defendant filed A.S.No.62 of 2001. This came up for consideration before the learned District Judge, Kanyakumari. By Judgment dated 23.01.2003, the learned District Judge again reappraised the evidence on record and framed points for consideration, the first point framed for consideration was with respect to D and E schedule properties and whether they can be subjected to partition. The learned Judge held that the father did not have sufficient source to purchase the said properties and that it is more probable that the properties purchased by the first defendant from London. The learned Judge also found that simultaneously seven properties had actually been purchased and the father of the parties had reconvened five of the properties. The learned Judge finally found that D and E schedule properties were not purchased by the Maria Nayakam Pillai from his own earnings.
13. The learned Judge also re-appreciated the evidence of PW-1. The learned Judge found that under law, the first plaintiff did not have a right to cancel the release deed and therefore stated that cancellation is null and void. The learned Judge finally removed D and E schedule properties from the scope of partition but however http://www.judis.nic.in 9 confirmed the Judgment of the Trial Court with respect to A,B and C properties.
14.Challenging this Judgment, the second and fourth plaintiffs alone filed the second appeal. The third plaintiff died and her legal representatives had brought on record as respondents 4 to 7.
15. Heard arguments advanced by Mrs.N.Krishnaveni, learned senior counsel for the appellant and Mr.G.Venugopal, learned counsel for R1 and R3 and Mr.Ramesh, learned counsel for M/s.V.Raghavachari for R2 and Mr.K.Guhan, learned counsel for R4 and R7.
16. The substantial questions of law framed at the time of admission of the second appeal are as follows:
(i) Whether the bar provided under Order 9, Rule 9 of Code of Civil Procedure shall be applicable for making a defence in a subsequent suit filed by the opposite party, especially when subsequent suit happens to be a suit for partition?
(ii) Whether the lower Appellate Court has committed an error in holding that the plaintiff shall not be entitled to resist the claim of the first defendant relying on the provisions of the Benami http://www.judis.nic.in 10 Transaction Prohibition Act, 1988, since the plaintiff did not make a plea in the plaint in contemplation that the first defendant would claim title to the suit D & E schedule properties on the ground that they were purchased Benami in the name of Maria Nayakam Pillai?
(iii) When the Provisions of the Benami Transaction Prohibition Act, 1988, prohibits making any claim or taking any defence on the basis that a transaction is a Benami Transaction against the person in whose name the document stands, is it correct on the part of the lower Appellate Court to omit to consider the same for the simple reason that no plea was made in the plaint by the plaintiff?
17.For the sake of convenience, the parties shll be referred as plaintiffs adn defendants. The suit had been filed by five plaintiffs seeking partition and separate possession of their shares in five items of suit property classified as A,B,C,D & E schedule properties. The plaintiffs are mother and four daughters. The first defendant was the son of the first plaintiff and the second defendant was another daughter who had renounced the world and had taken oath as a nun. The suit properties were in the name of the husband of the first plaintiff Maria Nayakam Pillai. At first blush, it would appear to be a simple suit for partition of the properties standing in the name of the http://www.judis.nic.in 11 father who died intestate. However in the plaint various further facts have been stated. These were disputed in the written statement by the first defendant who has also put up a new set of facts. He also filed an additional written statement. It must be noted that the first plaintiff died pending the suit and since her legal representatives were already on record either as plaintiffs or as defendants, no further party was impleaded.
18.As stated above the plaintiffs claimed an equal share along with the first and second defendant in the five schedule properties. Among the five schedule properties, the first defendant laid exclusive claim over the 4th and 5th schedule properties which were categorized as D and E schedule properties. According to the first defendant the father Maria Nayakam Pillai was not profitably employed. He was a watchman earning a meager income. It was stated that he did not have the means to purchase D and E schedule properties. It was further stated in the written statement that the first defendant was working in London and earned substantial amounts more than his father. It was also stated that he sent monies on regular basis to the father to purchase properties.
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19.It is said that it was with the said source of money, that the properties described as D and E schedule properties were purchased in the name of Maria Nayakam Pillai. It was also stated that similarly five other properties were purchased. They had been reconvened to the first defendant/his wife. Those documents were also produced in Court. They were marked as Exs.B19 – B22. Claiming D and E schedule properties as his absolute properties, the first defendant on his return from London, filed O.S.No.29 of 1986 against his father. He also obtained an order of attachment with respect to D and E schedule properties in I.A.No.61 of 1986. These documents were filed as Ex.A2 and A3. However pending the suit, the father/defendant Maria Nayakam Pillai died and the suit was dismissed for non-prosecution. It is the contention of the learned counsel for the first defendant that in the said suit Maria Nayakam Pillai had not disputed the averment that D and E schedule properties were purchased from the monies sent by the first defendant. It is surrounding this fact that the first substantial question of law had been framed.
20.Order 9, Rule 9 CPC is as follows:
“Decree against plaintiff by default bars fresh suit:-
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(i). Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.
But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearnace when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with suit.
(ii). No order shall be made under this rule unless notice of the application has been served on the opposite party.”
21. The learned senior counsel for the appellant claimed that the first defendant is precluded from making any defence when the earlier suit had been dismissed for default. The bar under Order 9, Rule 9 is only to institute a fresh suit. The defendant can even raise inconsistent defences. Moreover, the earlier suit had not reached its logical conclusion and consequently, I hold that the defence of the first defendant is not barred by any provision of law.
22.The second and third substantial questions of law relate to the provisions of the Benami Transaction Prohibition Act, 1988. It must be kept in mind that the said Act came into force on 19.05.1988. The http://www.judis.nic.in 14 present suit from which the second appeal emanates O.S.No.145 of 1990 was filed on 03.05.1990. One further factor to be examined before considering the issue of benami transaction is the averment in the plaint that the first plaintiff was threatened to execute a Release Deed. If the contention of the plaintiffs that the properties belonged to Maria Nayakam Pillai and to be accepted, then the necessity of executing a Release Deed will never arise. Similarly, the first defendant need not press for execution of a Release Deed, if he satisfies the Court about the source for the purchase of the properties. The first defendant had produced Ex.B4 which is the letter correspondence for sending money from London. These were for the period 16.03.1972 – 16.09.1976. It is claimed by the learned senior counsel for the plaintiffs that these documents cannot ot be sufficient evidence to hold that the D and E schedule properties were actually purchased by Maria Nayakam Pillai for the benefit of the first defendant. It is true that the Exs.B3 and B4 reflect that moneis were sent from London. But this has to be contradicted with the further avernments of the plaintiffs that the family debts were settled and the marriages were also performed.
23.The first Appellate Court relied on the proceedings in O.S.No. http://www.judis.nic.in 15 29 of 1986 and particular in I.A.No.16 of 2018, to hold that Maria Nayakam Pillai did not specifically deny that monies were sent from London. The Trial Court however reasoned that when seven properties were purchased from the monies sent from London, only five properties were retransferred to the names of the first defendant / his wife. The Trial Court held that there was no reason for Maria Nayakam Pillai not to retransfer the D and E schedule properties. The learned Judge attributed the only reason that was that the properties were the absolute properties of Maria Nayakam Pillai. The issue of benami transaction has been framed as a substantial question of Law. In the present case, even if the D and E schedule properties were said to have been purchased by Maria Nayakam Pillai from the monies sent by the first defendant, the first defendant should have initiated necessary suit for declaration of title and claimed those properties as his own properties. He filed O.S.No.29 of 1986. Pending that suit Maria Nayakam Pillai died. The first defendant should have pursued the suit to its logical conclusion. He did not do so. He cannot put up such a claim as defence in a suit for partition. When the defendant puts up a fresh plea in a partition suit, the burden is on him to prove the same. The documents relating to D and E schedule properties stand in the name Maria Nayakam Pillai. Naturally his legal hiers will have a right to http://www.judis.nic.in 16 claim a share over the same. The First Appellate Court erred in holding that even though the properties were in the name of Maria Nayakam Pillai, they were still the properties of first defendant. Section 90 of the Evidence Act clearly states that no amount of oral evidence let in as against a written document. Both sides have failed to produce the sale deed for purchase of D and E schedule properties. Even if the original deed have not produced, the certified copies should have been produced, particularly by the first defendant. A reading of the said documents would reveal the manner in which consideration passed. In the absence of those documents it would be highly improbable to conclude that consideration was paid exclusively from the monies sent by the first defendant. On that ground I hold that the First Appellate Court erred in appreciation of the evidence.
24. For all these reasons I hold that the second appeal has to succeed and consequently, the Judgment and Decree in A.S.No.62 of 2001 dated 23.01.2003 passed by the Principal District Judge, Kanyakumari is set aside. The Judgment and Decree in O.S.No.145 of 1990 dated 30.03.2001 by the Additional Subordinate Judge, Nagercoil, is confirmed.
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25. Second Appeal is allowed, however, without Costs.
Index:Yes/No 26.09.2018
Internet:Yes/No
smv
To
1.The Principal District Judge, Kanyakumari.
2.The Additional Subordinate Judge, Nagercoil. http://www.judis.nic.in 18 C.V.KARTHIKEYAN,J., smv S.A(MD) No.1016 of 2007 .09.2018 http://www.judis.nic.in