Madras High Court
M.Basmeegaran vs N.Revathi on 13 December, 2019
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.No.912/2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 13.12.2019
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.No.912 of 2001
and
S.A.(MD)No.1216 of 2005
1.M.Basmeegaran
2.M.Bageerathan ... Appellants in S.A.No.912 of 2001 /
Appellants / Plaintiffs
N.Revathy ... Appellant in S.A.(MD)No.1216 of 2005 /
Respondent / Petitioner / 1st Defendant
Vs.
1.N.Revathi
2.Soundarajan
3.Indirani
4.Govindasamy ... Respondents in S.A.No.912 of 2001 /
Respondents / Defendants
1.M.Basmeegaran
2.M.Bageerathan ... Respondents in S.A.No.1216 of 2005 /
/ Appellants / Respondents / Plaintiffs
PRAYER in S.A.No.912 of 2001: This Second Appeal is filed under
Section 100 of Civil Procedure Code, to set aside the judgment and decree
made in A.S.No.17 of 2000, dated 13.02.2001 on the file of the Subordinate
Court, Pattukottai, confirming the judgment and decree in O.S.No.319 of
1996 dated 28.06.2000 on the file of the District Munsif, Pattukottai.
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S.A.No.912/2001
PRAYER in S.A.(MD)No.1216 of 2005: This Second Appeal is filed under
Section 100 of Civil Procedure Code, to set aside the judgment and decree
made in I.A.No.39 of 2000 in A.S.No.17 of 2000, on the file of the Sub-
Court, Pattukkottai, dated 13.02.2001 against O.S.No.319 of 1996 dated
28.06.2000 on the file of the District Munsif, Pattukottai.
For Appellants : Mr.P.Vadivel
For R1 : Mr.P.Thiagarajan,
For Mr.A.George Stephen Kanikkai Raj
For R2 and R3 : Mr.D.R.Murugesan
(in S.A.No.912 of 2001)
For Appellant : Mr.P.Thiagarajan,
For Mr.A.George Stephen Kanikkai Raj
For Respondents : Mr.P.Vadivel
(in S.A.(MD)No.1216 of 2005)
COMMON JUDGMENT
Against the concurrent finding of the Courts below, S.A.No.912 of 2001 has been filed.
2.Against the dismissal of the Cross Objection filed by the first defendant by the First Appellate Court, S.A.(MD)No.1216 of 2005 has been filed.
3.Since both the appeals are arising out of the same judgment, this Court is inclined to dispose of both the appeals by way of this common judgment.
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4.S.A.(MD)No.1216 of 2005 was admitted on the following questions of law:-
“1.Whether the Court below is right in dismissing the cross objection without giving any reason?
2.Whether the Court below committed an error of law dismissing the cross objection in a cryptic non-speaking judgment without giving any reason?
3.Whether the Court below right in dismissing the cross objection after giving a finding in favour of the appellant in the main appeal?.”
5.S.A.No.912 of 2001 was admitted on the following questions of law:-
“1.Whether the Lower Appellate Court has erred in non-suiting the plaintiffs when the cross appeal filed by the defendants against the findings regarding the character of the joint family property and possession of the same found in favour of the plaintiffs have been confirmed? ”
6.The suit has been filed originally for declaration and also consequential injunction, restraining the defendants from interfering the possession of the plaintiffs. The suit properties are joint family property of the plaintiffs. It is the case of the plaintiffs that the suit properties originally owned by one Vaithilingam Pillai, grandfather of the plaintiffs. 3/12 http://www.judis.nic.in S.A.No.912/2001 The father of the plaintiffs, namely, Muthuveerappa Pillai died 5 years back. Ever since the death of their father, the plaintiffs, their mother, younger brother and other sisters became entitled as per the Hindu Succession Act and the suit properties are in joint possession of the legal heirs of Muthuveerappa Pillai. The defendants 2 and 3 were residing nearby village and they are the Doctors by profession. The defendants 2 and 3 have requested the plaintiffs to stand as Guarantor in obtaining the loan. However, the same was objected. Aggrieved over the same, they had developed ill-will against the plaintiffs and created an agreement dated 08.01.1996 in respect of other properties not covered under the suit and also presented a document in respect of other properties for compulsory registration. Based on the above agreement, there was an attempt to interfere with the properties. Therefore, the plaintiffs have filed the suit against the defendants in O.S.No.158 of 1996, seeking for injunction. When the matter was pending, on 29.09.1996, the defendants 2 to 4 kidnapped the plaintiffs and obtained a sale deed forcibly. In respect of which, a complaint has also been given on 30.09.1996. As no action has been taken by the police officials, the present suit is filed. Besides, they have also sent telegrams. Hence, the suit is filed to declare the suit property as their joint family property.
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7.It is the contention of the plaintiffs that the sale deed dated 27.09.1996 is null and void and they have sought a declaration, declaring the suit properties as joint family properties and consequential injunction. The first defendant had denied the allegations in the written statement and the alleged kidnap was also denied in entirety. The defendants 2 to 4 filed statement that they are not aware of the sale deed dated 29.09.1996, whereas denied the alleged kidnap and registration.
8.Based on the above pleadings, the trial Court has framed the following six issues:-
“1.Whether the suit properties are in joint family properties of the plaintiffs?;
2.Whether the Sale deed is executed for consideration on 27.09.1996?;
3.Whether the first defendant is in enjoyment of the suit property, in pursuant to the sale deed dated 27.09.1996?;
4.Whether the plaintiffs are in possession of the property?;
5.Whether the plaintiffs are entitled for the declaration and injunction? And
6.Whatever relief the plaintiffs are entitled?.”
9.On the side of the plaintiffs, P.W.1 was examined and Exs.A.1 to A.48 were marked. On the side of the defendants, four witnesses were 5/12 http://www.judis.nic.in S.A.No.912/2001 examined and Exs.B.1 to B.8 were marked. Considering the entire evidence, the trial Court has dismissed the suit. The First Appellate Court has also confirmed the finding of the trial Court. Against which, S.A.No.912 of 2001 has been filed. A Cross Appeal has also been filed against the finding of the trial Court, with regard to the finding of the possession. The First Appellate Court though recorded the finding in its judgment that the first defendant is in possession of the property, however, has rejected the Cross Appeal. As against which, S.A.(MD)No.1216 of 2005 is filed.
10.Heard Mr.P.Vadivel, learned counsel appearing for the appellants in S.A.No.912 of 2001 and the respondents in S.A.(MD)No.1216 of 2005 and Mr.P.Thiagarajan, learned counsel appearing for the first respondent in S.A.No.912 of 2001 and the appellant in S.A.(MD)No.1216 of 2005 and Mr.D.R.Murugesan, learned counsel appearing for the respondents 2 and 3 in S.A.No.912 of 2001.
11.The contention of the learned counsel appearing for the appellants in S.A.No.912 of 2001 that the documents filed on the side of the plaintiffs clearly indicate that Ex.B.1 sale deed dated 27.09.1996 had obtained forcibly and by coercion. The telegram and complaints filed clearly substantiated the coercion and the kidnapping of the plaintiffs. The Courts below have not considered the same. Further, the Courts below, 6/12 http://www.judis.nic.in S.A.No.912/2001 having held that the properties are joint family property, ought to have set aside the sale deed dated 27.09.1996 (Ex.B1). The evidence of D.W.1 to D.W.3 are contradictory to the documents, with regard to the consideration, that itself clearly indicate that the document has not been properly executed by the plaintiffs. Hence, it is the contention that the judgments of the Courts below have to be interfered and the appeal in S.A.No.912 of 2001 has to be allowed.
12.The learned counsel appearing for the respondents would submit that the Courts below have concurrently found that the alleged kidnapping of the plaintiffs and execution of the documents forcibly have not substantiated and the same have been pressed into service to deny the rights of the defendants, who have purchased the property. Hence, it is the contention that when the Courts below have factually analyzed all the evidences, the Second Appeal in S.A.No.912 of 2001 has to be dismissed. It is the further contention that as far as S.A.(MD)No.1216 of 2005 is concerned, the First Appellate Court, having found that the first defendant is in possession of the property based on the documents, ought not to have rejected the Cross Appeal and prayed for allowing the said appeal.
13.I have perused the entire materials. It is not in dispute that the properties, which are originally owned by the grandfather of the plaintiffs 7/12 http://www.judis.nic.in S.A.No.912/2001 and the plaintiffs and other legal heirs of the Muthuveerappa Pillai are in joint possession of the suit properties. This fact has not been denied by both sides. It is the main contention of the plaintiffs that the defendants 2 and 3, who are the Doctors by profession, have requested the plaintiffs to stand as guarantor. As the plaintiffs have refused the same, they have developed ill-will and created some other documents in respect of other property. Thereafter, they have tried to interfere with the possession of the suit property. As a result, the plaintiffs have filed suit in O.S.No.158 of 1996. Agitated over the same, on 29.09.1996, the plaintiffs were kidnapped and kept in some other place and signature was obtained in the sale deed prepared by the defendants and got it registered in the Register Office. Therefore, they have complained the same. The Courts below have held that the alleged kidnap and coercion in obtaining documents have not been established and specifically recorded that all the so-called telegrams and alleged complaints itself not sufficient to prove the contention, as no further action whatsoever has been taken by the plaintiffs. Be that as it may, when the person alleges that the document is registered by way of coercion or obtained forcibly by way of criminal act, namely, kidnap, the entire burden lies on the person to prove that the document is executed by coercion.
14.A perusal of Ex.B.1 shows that the document was executed on 30.09.1996 between 01.00 p.m., to 02.00 p.m, whereas the complaint and 8/12 http://www.judis.nic.in S.A.No.912/2001 pleadings itself indicate as if they were coerced and taken to the Register Office and the document got it registered on the same date ie., on 29.09.1996. That itself clearly indicates that the allegation pressed into service is not true. It is further to be noted that if really the plaintiffs were kidnapped and kept in the custody of the defendants at the whole night ie., on 29.09.1996, what would have the conduct of the family members. The normal conduct would have prompted them to take proper action legally or rush to the Police Station. Whereas, the registration has been done on the next date and there was no objection whatsoever raised before the Registrar. The Sub-Registrar is performing Quasi Judicial function and the document has been registered without any objection whatsoever. Therefore, it is to be necessarily presumed that all the officials acts are conducted properly. Therefore, merely on the basis of the telegram sent by some other brothers, who are having rights over the property, it cannot be construed that they were kidnapped.
15.It is to be noted that if the allegation of the kidnap is true, the plaintiffs would have examined other witnesses from the villagers. It is not the case of the plaintiffs that they were kidnapped in isolation and it is the case of the plaintiffs that they were kidnapped from the village. It is highly improbable to contend that when a person was kidnapped in the village, nobody will notice that. Therefore, the very conduct of the plaintiffs itself is 9/12 http://www.judis.nic.in S.A.No.912/2001 doubtful in this case, as to the nature of the kidnap and alleged forcible registration of the documents. It is also to be noted that all the telegrams particularly the documents Exs.B.21 to B.32 and Exs.B.20, 23, 24 and 25 contained the same allegation. They are the copy of the same telegram. The manner in which the contents found in the telegrams clearly indicate that it is nothing but clear after thought at the instruction of the other shareholders. It is also pertinent to note that if really the documents were obtained forcibly, the plaintiffs ought to have sought declaration to cancel the document. Admittedly, they are the executants of the documents. But the suit has been filed for declaration to declare the suit property as joint family property. But, no declaration whatsoever sought in respect of the documents said to have been obtained forcibly and no Court fee whatsoever paid under Section 25 of Tamil Nadu Court Fees and Suits Valuation Act, 1955. The Court fee value of the suit was arrived at only Rs.300/- and paid Rs.23/- as court fee to avoid the documents value of Rs.75,000/-. The above conduct cannot be ignored. Therefore, the finding recorded by both the Courts below does not require any interference. The First Appellate Court has presumed that the possession must be with defendants, since they purchased the property.
16.This Court is of the view that such finding based on the presumption is not according to law. It is well settled that the stranger 10/12 http://www.judis.nic.in S.A.No.912/2001 purchaser cannot seek exclusive possession, they can seek for partition. Such being the position, no evidence as to the possession adduced before trial Court. This Court is of the view that it is for the respective parties to agitate the same in separate proceedings, like suit for partition. Therefore, this Court is of the view that as far as the possession is concerned, no finding is recorded without any concrete evidence. It is left open to the parties to agitate their rights for respective shares in the property.
17.In such view of the matter, the finding recorded by the Courts below does not require any interference, as far as Ex.B.1 is concerned. Accordingly, all the substantial questions of law are answered and both the Second Appeals are dismissed. No costs.
13.12.2019
Index : Yes/No
Internet : Yes/No
Myr
To
1.The Subordinate Judge,
Pattukottai.
2.The District Munsif,
Pattukottai.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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S.A.No.912/2001
N.SATHISH KUMAR, J.
Myr
S.A.No.912 of 2001
and
S.A.(MD)No.1216 of 2005
13.12.2019
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