Madras High Court
M.Karuppannan vs Mariyammal on 29 October, 2018
Author: S.Baskaran
Bench: S.Baskaran
1
BEFORE THE MADRUAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 17.11.2017
Judgment Pronounced on : 29.10.2018
CORAM:
THE HONOURABLE MR. JUSTICE S.BASKARAN
S.A.(md)No.309 of 2013
1.M.Karuppannan
2.K.Balakrishnan
3.K.Kalavathi ... Appellants/Respondents 7 to 9
Legal heirs of deceased 5th defendant
Vs.
1.Mariyammal ... Respondent/Appellant/Plaintiff
2.R.Kulandaivel
3.Ganesan
4.Mahalakshmi
5.S.Periyasamy
6.Banu @ Vijayalakshmi ... Respondents/Respondents/
Defendants 1 to 4 and 6.
This second appeal has been filed under Section 100 of CPC,
against the Judgment and Decree dated 22.06.2012 made in A.S.No.
87 of 2010 passed by the learned Principal Subordinate Judge, Karur,
reversing the Judgment and Decree dated 09.10.2009 in O.S.No.417
of 2005 passed by the learned Principal District Munsif, Karur.
For Appellants : M/s.Chitra Sampath
http://www.judis.nic.in
2
Senior Counsel for
Mr.E.K.Komaresan
For Respondents : Mr.V.Meenakshi Sundaram
for Mr.M.Bindran
JUDGMENT
This second appeal arises out of the Judgment and Decree dated 22.06.2012 made in A.S.No.87 of 2010 passed by the learned Principal Subordinate Judge, Karur, reversing the Judgment and Decree dated 09.10.2009 in O.S.No.417 of 2005 passed by the learned Principal District Munsif, Karur.
2. Brief facts of the case is as follows:-
The suit property originally belonged to one Rasu Pillai. The plaintiff is the wife of the said Rasu Pillai. The defendants 1 and 2 are the sons of said Rasu Pillai. The 3rd defendant is the wife of the deceased son of Rasu Pillai. After the death of Rasu Pillai, the plaintiff and defendants 1 to 3 are jointly in possession and enjoyment of the suit property. The plaintiff is entitled to 1/4 th share in the suit property. The defendants 4 and 5 have no right in the suit property.
The defendants 4 and 5 are attempting to create false and frivolous documents after the death of the Rasu Pillai over the suit property and the said documents if any will not bind upon the plaintiff. There is no http://www.judis.nic.in 3 possibility for joint possession and enjoyment of suit property. The plaintiff demanded partition, but the defendants 1 to 3 are evading the same and also trying to disturb the possession of the plaintiffs. Hence, the plaintiff was constrained to send legal notice dated 05.04.2005 to the defendants demanded partition of the suit property. Even then, the defendants refused to come forward for partition. Hence, the plaintiff has come forward with the suit for partition of her 1/4th share in the suit property.
3.On the other hand, the defendants 1 to 3 and 6 th defendants set exparte. The 4th defendant filed the separate written statement and stated that the plaint allegations are all false. The said Rasu Pillai proposed to sell the suit property to the 4th defendant for a sum of Rs.15 lakhs and agreed to sell the same and received Rs.15 lakhs from the 4th defendant and executed a power of attorney on 08.03.2004. To avoid stamp duty and registration charges, the 4th defendant obtained power of attorney from the said Rasu Pillai and also obtained receipt for Rs.15 lakhs. The above said facts are known to the plaintiff and the defendants 1 to 3. On the date of power of attorney, the possession of the suit property was handed over to the 4th defendant. Before execution of power of attorney, the said Rasu http://www.judis.nic.in 4 Pillai already executed a Will in favour his two sons. The said Will was cancelled by Rasu Pillai on 05.03.2004. Subsequently, on 27.01.2005, the 5th defendant had offered to purchase the suit property for a sum of Rs.6,97,300/- from the 4th defendant. As such, the 4th defendant received a sum of Rs.2,97,300/- from the 5th defendant and agreed to recover the balance within one or two days and accordingly received cheque from the husband of the 5th defendant and executed a sale deed on 27.01.2005 in the name of the 5th defendant. The husband of the 5th defendant asked the 4th defendant to retain the original sale deed till the cheque amount was received by the 4th defendant. However, the said cheque was bounced. Hence, the 4 th defendant filed the criminal case against the husband of the 5 th defendant in C.C.No.3 of 2006. As such, at the instigation of the defendants 5 and 6, the plaintiff and the defendants 1 to 3 colluded together and falsely filed the suit against the defendants. Hence, the suit has to be dismissed.
4.The 5th defendant filed written statement separately and stated that the said Rasu Pillai gave power of attorney to the 4th defendant on 08.03.2004. On the strength of the said power of attorney deed, the 4th defendant agreed to sell the suit property to the http://www.judis.nic.in 5 5th defendant for a sum of Rs.6,97,300/- and on 27.01.2005 after receiving the said amount in cash, executed the sale deed . When the 5th defendant demanded the sale deed, for which the 4th defendant stated that on 25.01.2015, the owner of the property, namely, Rasu Pillai died, so there was a dispute in the suit property between the legal heirs of the said Rasu Pillai. As such, the 4 th defendant demanded further sale consideration of Rs.4,00,000/- from the husband of the 5th defendant to settle the matter which the legal heirs of deceased Rasupillai. The 5th defendant was not interested to give Rs.4,00,000/- but in order to avoid any future litigation and finally out of threat and coercion agreed to pay the said sum after the matter is amicably settled. In order to come out of the problem, the 5 th defendant's husband agreed to issue the post dated cheque and on 29.06.2005 issued 4 post dated cheques dated 15.03.2005 drawn on KVB, Karur Central Branch in favour of the 4th defendant for Rs.4,00,000/-. Despite of repeated request of the 5th defendant, the 4th defendant failed to resolve the issue in question. Consequently, the 5 th defendant and her husband demanded 4th defendant to return back the original sale deed and the cheque in question to them, but the 4 th defendant has been evading to return the same under some pretext or other. Since the 4th defendant did not settle either the issue or return back http://www.judis.nic.in 6 the original sale deed and the cheques, the 5th defendant's husband stopped the payment of cheques by giving letter to the Bank. Subsequently, the 5th defendant gave a complaint to the Police. Now, the 4th defendant, conspiring with the heirs of the deceased Rasu Pillai filed this suit through the wife of Rasu Pillai against this defendant and also filed the cheque dishonour case against the 5 th defendant and the husband of the 5th defendant. From the date of sale deed, the suit property is in possession and enjoyment of the 5th defendant and the 5th defendant has fenced the suit property and obtained patta and paying tax to the Government. The plaintiff never in joint possession and enjoyment of the suit property with the 5th defendant. Hence, the suit has to be dismissed.
5.After contest, the trial Court negatived the claim of the plaintiff and dismissed the suit. Aggrieved upon that the plaintiff preferred the appeal before the lower appellate Court and after contest, the lower appellate Court allowed the appeal and decreed the suit as prayed for by setting aside the decree and judgment of the trial Court. Now, the legal heirs of the 5th defendant preferred this second appeal against the plaintiff, defendants 1 to 4 and 6. http://www.judis.nic.in 7
6.At the time of admission, the following substantial question of law were framed by this Court for consideration.
1)Whether the suit for partition is
maintainable against parties who claim title
adverse to the plaintiff?
2)Whether the suit for partition can be
decreed against third parties who are in
possession of the suit property without a prayer for recovery of possession and payment of appropriate Court fee under Section 30 of the TNCF & SC Act?
3)Whether the Courts below were right in deciding the dispute between the co-
defendants in the absence of any issue in the suit and irrelevant for the disposal of the suit?
4)Whether the Courts below committed a grave error in deciding the validity of the sale deed in favour of the fifth defendant when there was no prayer for setting aside the same?
5)Whether the Courts below were right in granting a decree for partition when admittedly the husband of the plaintiff had already received entire sale price and handed over possession of the suit property to the fourth defendant long http://www.judis.nic.in 8 prior to the suit and no relief was specifically sought against the fourth defendant?
7.The learned counsel appearing for the appellants would submit that the 4th defendant obtained a power of attorney deed from Rasu Pillai, who is the owner of the suit property, after paying the sale price of Rs.15 lakhs to the said Rasu Pillai. Hence, the power of attorney deed is one coupled with interest. As such, without knowledge of the death of the principal, the 5th defendant obtained sale deed from the 4th defendant and after execution of sale deed alone, the death of the Principal came to the knowledge of the power agent and the purchaser. When the power of attorney deed it coupled with interest, the same was not come to an end, immediately on death of the principal. P.W.1 herself admitted in her cross examination that the above said date of death of principal was not known to the 4th defendant, but the lower appellate Court without considering the admission made by P.W.1, merely on assumption held that power agent was having knowledge of the death of the principal without any evidence to support the same. The trial Court has elaborately discussed the oral and documentary evidences and arrived at correct conclusion. But, the reversal of the said judgment without adducing any reason by the lower appellate Court is against law. Hence, it is http://www.judis.nic.in 9 contended that the interference of this court is necessarily warranted and the appellant seeks to entertain the appeal.
8.Per contra, the learned counsel appearing for the respondents would submit that on the side of the 4th defendant, the date of knowledge of the death of the principal is not proved. It is also contended that the 4th defendant miserably failed to prove Ex.B3 receipt. In such circumstances, it is stated that the 4th defendant has no right or title to execute the sale deed in favour of the 5th defendant. In such situation, mere registration of the sale deed in favour of the 5th defendant is not sufficient and it will not cloth with any right or title to the 5th defendant on the suit property. Hence, the lower appellate Court came to the correct conclusion and there is no infirmity in the findings of the lower appellate Court. Hence, the respondents seeks to dismissal of the appeal.
9.I have heard the rival contention and perused the materials available on record.
10.On perusal, it is clear that the suit property originally belonged to one Rasu Pillai by way of purchase in the year,1965 and http://www.judis.nic.in 10 he is the husband of the plaintiff and father of the defendants 1 and 2 and father-in-law of the 3rd defendant. The same facts are not disputed by any one. According to the plaintiff, She along with her sons the defendants 1 and 2 and daughter in law, the 3rd defendant, are in joint possession and enjoyment of the suit property. As it is no longer convenient for the plaintiff to be in joint possession and enjoyment of the same with the defendants 1 to 3, she demanded the defendants 1 to 3 for amicable partition, but, they have evaded and attempted to disturb the joint possession. Hence, she was constrained to give notice to the defendants and receiving the notice, no reply was given and no steps was taken by the defendants to effect partition. Hence, the plaintiff came forward with the suit for partition.
11.The defendants 1 to 3 and 6 failed to appear and are set exparte. According to the defendants 4 and 5, they have denied the allegations of the plaintiff and took the stand that already the 4 th defendant obtained power of attorney by paying sale price of Rs.15 lakhs to the husband of the plaintiff, the late Rasupillai sold the suit property to the 5th defendant. Thus, there is no right for the plaintiff for demanding partition. After contest, the trial Court came to the conclusion that the 4th defendant executed sale deed in favour of the http://www.judis.nic.in 11 5th defendant only after receiving the full sale consideration from the 5th defendant and the 5th defendant took possession and changed the mutation entries and also paid the tax to the Government. The trial Court also had believed that the legal heirs of the Rasu Pillai only after knowing about execution of power deed by Rasupillai and execution of sale deed in favour of the 5th defendant by the 4th defendant and dishonour of cheque issued by the husband of 5th defendant only failed to appear and remained exparte. As such, the trial Court negatived the claim of the plaintiff for partition. However, on appeal by the plaintiff, the first appellate Court reverse the findings of the trial Court by stating that after execution of power of attorney deed and before execution of sale deed by the 4th defendant in favour of the 5th defendant, the principal died and as the date of knowledge about the death of the principal was not proved by the defendants 4 and 5, the lower appellate Court did not accept the contention of defendants 4 and 5, allowed the appeal and decreed the suit for partition as prayed for. Aggrieved over the same, the legal heirs of the 5th defendant have filed the present second appeal.
12.In the second appeal, the learned counsel appearing for the 5th defendant would contend that the plaintiff herself admitted that http://www.judis.nic.in 12 the 4th defendant has no knowledge of the death of her husband. Hence, the Ex.B2 power of attorney deed coupled with interest will not come to an end immediately after the death of the principal. In support of the said contention, the learned counsel for the appellants relied on Division Bench Ruling reported in 2016(1) L.W. 462 in THE INSPECTOR GENERAL OF REGISTRATION, NO.100, SANTHOME HIGH ROAD, FORESHORE ESTATE, PATTINAPAKKAM, CHENNAI-600 028, wherein it has held as follows:-
“45.In so far as India is concerned, the law of contracts is codified and hence the answer to the question on hand is to be found only in the Contract act and that too by reading Sections 202 and 209 together. A careful reading of Section 202 would show:-
(a) that but for the two illustrations contained thereunder, it applies primarily to cases of voluntary acts of termination;
(b) that in any case, the prescription contained in Section 202 that an agency coupled with interest cannot be terminated, can be kept out by parties by including express provisions in the contract; and
(c) that what is prohibited by Section 202 is only a termination to the prejudice of the interest that the agent himself has in the http://www.judis.nic.in 13 property which forms the subject matter of the agency.
46.Section 202 does not stipulate that the termination of agency by the death of the principal is not permissible at all. Section 202 does not even protect the agent. It actually protects the agent's interest in the property which forms the subject matter of the agency.” In another ruling reported in 2014 SCC Online Del 3152 in SH. BIDHAN CHAND BISWAS(SINCE DECEASED) THROUGH LRS Vs. SH. PRAKASH CHAND BANSAL AND OTHERS, it is held as follows:-
“42.......In the case of Ramesh
Chand(supra), the Hon'ble High Court was
pleased to reiterate that by virtue of the
provisions of Section 202 of the Contract Act, a power of attorney executed for consideration would remain valid even after the death of the executants because the same had elements of a commercial transaction which cannot be allowed to be frustrated on account of death of the executants. Section 202 of the Contract Act provides that such an agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.” In yet another ruling reported in 2014 SCC Online Del 6702 in http://www.judis.nic.in 14 SMT.SUDERSHANA KUMAR BLAGAN Vs. SMT.TULSAN DEVI DECD THROUGH LRS AND OTHERS, it is held as follows:-
“13.The reason why any power of attorney given for consideration does not lapse after the death of the principal who has executed the same is because once consideration has been received by a person which is a subject matter of the power of attorney, and such interest is create in favour of the agent, agent should not be prejudiced because of the death of the principal inasmuch as the principal has received whatever benefits/consideration which had to be received under the power of attorney.” Relying on the above said ruling, the learned counsel for the appellant contended that the conclusion of the first appellate Court is unsustainable and the same is to be set aside.
13.However, opposing the same, the learned counsel for the respondents contended that the reasoning of the lower court is proper and in support of the contention he relied on a ruling reported in 2011 (6) CTC 90 in SURAJ LAMP & INDUSTRIES PVT. LTD., Vs. STATE OF HARYANA AND ANOTHER, wherein it is held as follows:-
“16.We therefore reiterate that
http://www.judis.nic.in
15
immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded transfers or as conveyances as they neither convey title nor create any interest in an immovable property. They cannot be recognized as deeds of title, except to the limited extent of section 53A of the TP Act. Such transactions cannot be relied upon or made the basis for mutations in Municipal or Revenue Records. What is stated above will apply not only to deeds of conveyance in regard to freehold property but also to transfer of leasehold property. A lease can be validly transferred only under a registered Assignment of Lease. It is time that an end is put to the pernicious practice of SA/GPA/WILL transactions known as GPA sales.
18. We have merely drawn attention to and reiterated the well-settled legal position that SA/GPA/WILL transactions are not `transfers' or `sales' and that such transactions cannot be treated as completed transfers or conveyances. They can continue to be treated as existing http://www.judis.nic.in 16 agreement of sale. Nothing prevents affected parties from getting registered Deeds of Conveyance to complete their title. The said `SA/GPA/WILL transactions' may also be used to obtain specific performance or to defend possession under section 53A of TP Act. If they are entered before this day, they may be relied upon to apply for regularization of allotments/leases by Development Authorities. We make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision.”
14.On the basis of the law laid down by the Apex Court, we have to analyse the facts of the case. As per the ruling reported in 2011 (6) CTC 90(cited supra), the Hon'ble Supreme Court reiterated that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of `GPA sales' or `SA/GPA/WILL transfers' do not convey title and do not amount to transfer, nor can they be recognized or valid mode of transfer of immoveable property. The courts will not treat such transactions as completed or concluded http://www.judis.nic.in 17 transfers or as conveyances as they neither convey title nor create any interest in an immovable property. In the same judgment, in Para 18, it is held that we make it clear that if the documents relating to 'SA/GPA/WILL transactions' has been accepted and acted upon by DDA or other developmental authorities or by the Municipal or revenue authorities to effect mutation, they need not be disturbed, merely on account of this decision. As per the Apex Court verdict certainly Ex.B4, it is not a document of deed of transfer, but as per Para No.18 of the said Judgement of the Supreme Court, if the revenue authorities had accepted the document and changed the mutation entries it cannot be disturbed. So, the above said Apex Court citation is not applicable as far as Ex.B4 is concenred.
15.According to the 5th defendant, after receipt of entire sale consideration by the Rasu Pillai, he executed Ex.B3 cash receipts as well as Ex.B2 General Power of Attorney in favour of 4th defendant. Both Ex.B2 and Ex.B3 were executed on the same day. In Ex.B2, the defendants 1 and 2 are the attesting witness. In Ex.B3, the first defendant is attesting witness. Even though, they have been arrayed as the defendants in the suit, they failed to appear, and contest the case and they have not raised their little finger against the defendants http://www.judis.nic.in 18 4 and 5. The plaintiff in her pleadings in Para No.6 of the plaint, has stated about the defendant 1 to 3 with regard to disturb for joint possession and demanding of partition and refusal of the same by the defendant. But, in the plaint, the plaintiff has miserably failed to mention anything about the defendants 4 and 5. Even though, the defendants 4 and 5 are the parties to the suit, how they are related to the suit and what is necessity for them to be impleaded as party to the suit and what are the steps taken by them against the plaintiff and why they have been impleaded as defendants 4 and 5 is not explained by the plaintiff. In the cause of action para also, the plaintiff has not mentioned about the notice issued to the defendants 4 and 5, but the list of documents, the plaintiff has produced documents No.4 and 5 as office copy of the notice issued by the plaintiff to the defendants, acknowledgement card and the unserved returned cover. However, in the cause of action paragraph, no cause of action is mentioned against the defendants 4 and 5. As far as the partition suit is concerned, the defendants 4 and 5 are no way connected with the family of the plaintiff and the defendants 1 to 3. In such situation, why the defendanta 4 and 5 were impleaded in the suit for partition and what are the relief claimed against them is not stated. The plaintiff came with bereft of particulars with regard to the real facts. Hence, the http://www.judis.nic.in 19 bereft of particulars clearly reveals that the plaintiff has not come with the clean hands to the Court.
16.After the appearance of the defendants 4 and 5, they have filed the separate written statement and narrated about the receipt of Rs.15 lakhs by the husband of the plaintiff as consideration for the power of attorney deed executed in favour of the 4 th defendant. It is also alleged that for the purpose of executing power of attorney deed, the said Rasu Pillai cancelled the Will executed by him, which is marked as Ex.B1 and the same was produced along with the written statement of the 4th defendant. The 4th defendant has also produced the power of attorney deed and receipt for sale amount given by him along with written statement. Even then the plaintiff has not chosen to file any reply statement to deny about the said documents. It is the bounden duty of the plaintiff to deny the said documents to prove her right to the suit property, but, the plaintiff miserably failed todo so.
17.Admittedly, Ex.B3 was executed on 27.01.2005. The said Rasu Pillai died on 25.01.2005 as per Ex.A3. Admittedly, after the death of Rasu Pillai, Ex.B4 sale deed was executed by the 4th defendant in favour of 5th defendant. The only question raised as the substantial question of law in the second appeal is with regard to the http://www.judis.nic.in 20 death of the principal and execution of sale deed after that by the power agent is valid. In this aspect the learned counsel for the appellant vehemently put forth his contention and relied on a ruling reported in 2016 (1) L.W. 462(cited supra). In the above said citation, the Division Bench has elaborately discussed about Section 202 of the Indian Contract Act. Section 202 of the Indian Contract Act runs as follows:-
“Section 202 Termination of agency, where agent has an interest in subject matter:- Where the agent has himself an interest in the property which forms the subject matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.
Illustrations
(a)A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.
(b)A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton, and desire B to sell the cotton, and to repay himself out of the price the amount of his own advances. A cannot revoke this authority, nor it is terminated by his insanity or death.” http://www.judis.nic.in 21
18.On the side of the appellant, it is contended that that once consideration was received by a person which is a subject matter of power of attorney, and such interest created for power of agent, agent should not be prejudiced because of the death of the principal inasmuch as the principal has received whatever benefits/consideration which had to be received under the power of attorney. So, for that reasons, the power of attorney deed cannot come to an end. In 2011 (6) CTC 90(cited supra), the Apex Court held that the Court should not recognize, such a transaction as they neither convey title nor create any interest in an immovable property and they cannot be recognized as deeds of title except to the limited extent of Section 53-
A of the TP Act, but the Court also held that if already the above said documents were accepted by the local bodies, the same cannot be disturbed. As per the above ruling of the Hon'ble Supreme Court, Ex.B4 cannot be disturbed.
19.Now, let us see whether Ex.B2 General Power of Attorney deed is one coupled with the interest or not and when it was analysed. The Division Bench of our High Court in the ruling reported in 2016 http://www.judis.nic.in 22 (1) L.W. 462(cited supra) reiterated that the answer to the same is to be found under Section 202 of the Indian Contract Act. In the said Section it is specifically stated in Illustration (a) A gives authority to B to sell A's land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death. In this case, as per the version of the defendants 4 and 5, Ex.B3 was executed only after receipt of Rs. 15 lakhs from the 4th defendant. It was attested by the first defendant. If really Ex.B3 is produced, then the first defendant can object this document. The plaintiff is the mother of the first defendant, even than the first defendant has not chosen to deny the Ex.B3. Further more, the plaintiff has not whispered any thing about the Ex.B3. The plaintiff has also not denied Ex.B2 and Ex.B3. In such circumstances, there is no need or necessity for the defendants 4 and 5 to prove the same.
20.As per the evidence available only after receipt of Rs.15 lakhs, Ex.B3 was executed along with Ex.B2. Thus, Ex.B2 power of attorney deed is executed along with Ex.B2. Thus Ex.B2 power of attorney deed is executed on consideration of Rs.15 lakhs. Therefore, the said power of attorney deed is coupled with interest. Thus, as per http://www.judis.nic.in 23 Section 202 of the Indian contract Act, the death of the principal is immaterial and it will not revoke the power of attorney deed instantly. However, the lower appellate Court without considering these aspects of power of attorney deed coupled with interest discussed about the knowledge of the power of attorney holder about the death of principal and miserably failed to consider the Section 202 of the Indian Contract Act properly. As per the Division Bench decision of this Court, the Ex.B2 power of attorney deed is one coupled with interest and as such on the death of the principal, the power of attorney deed will not come to an end. Thus, the question of law raised by the appellant is answered in favour of the appellant. The trial Court has dealt with Ex.B2 to Ex.B8 elaborately and on that basis alone, the trial Court came to the conclusion that the plaintiff is not entitled to such partition. Further more, the plaintiff has not come with the clean hands as stated supra and more over she failed to deny the rights claimed by the defendants 4 and 5 and her pleadings also it bereft of particulars. The plaintiff has miserably failed to prove that how she is entitled to partition after the execution of Ex.B2 and Ex.B3. When the plaintiff failed to prove her case properly, she is not entitled to get any relief. Therefore, the findings of the lower appellate is not sustainable as the same is not in accordance with law Section 202 of the Indian Contract http://www.judis.nic.in 24 Act and as per dictum laid down by the Division Bench in the ruling reported in 2016 (1) L.W. 462 (cited supra). In view of the above said discussion, it is clear that the question of law raised by the appellants is appropriate and the same is answered in favour of the appellants. For the reasons stated above, the appeal is to be entertained and the point is answered accordingly.
21.In the result, the second appeal is allowed. No costs. The Judgment and Decree dated 22.06.2012 made in A.S.No.87 of 2010 passed by the learned Principal Subordinate Judge, Karur are hereby set aside and the Judgment and decree dated 09.10.2010 passed in O.S.No.417 of 2005 by the learned Principal District Munsif, Karur is hereby confirmed.
29.10.2018 rrg To
1.The Principal Sub Judge, Karur.
2.The Principal District Munsiff, Karur.
http://www.judis.nic.in 25 S.BASKARAN,J., rrg/vs Judgment in S.A.(MD).No.309 of 2013 http://www.judis.nic.in 26 29.10.2018 http://www.judis.nic.in