Madras High Court
A.V.Subramanian vs Ramamoorthy on 30 November, 2011
Author: M.Venugopal
Bench: M.Venugopal
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/11/2011 CORAM THE HONOURABLE Mr.JUSTICE M.VENUGOPAL Second Appeal (MD) No.108 of 2006 1. A.V.Subramanian 2. A.V.Gopalakrishnan 3. A.V.Ramakrishnan 4. A.V.Gokulan 5. A.V.Indiran 6. A.V.Manoharan ... Appellants/ Defendants Vs 1. Ramamoorthy 2. Krishnamoorthy 3. Seeni @ Alagarsamy ... Respondents/ Plaintiffs Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree dated 30/9/2005 made in A.S.No.14 of 2004 on the file of III Additional Sub-Court, Madurai, reversing the Judgment and Decree dated 3/9/2003 made in O.S.No.510 of 1986 on the file of the District Munsif Court, Tirumangalam. !For Appellants ... Mr.P.T.S.Narendravasan ^For Respondents ... Mr.K.Hemakarthikeyan - - - - - - - :JUDGMENT
The Appellants/Defendants have filed the instant Second Appeal as against the Judgment and Decree dated 30/9/2005 in A.S.No.14 of 2004 passed by the Learned III Additional Sub-Judge, Madurai in reversing the Judgment and Decree dated 3/9/2003 in O.S.No.510 of 1986 passed by the Learned District Munsif, Thirumangalam.
2. THE PLAINT FACTS OF THE RESPONDENTS/PLAINTIFFS:- The plaint schedule property is situated in Chettikulam Village, Thirumangalam Taluk, Madurai District. The plaint schedule property is in S.No.32/1 with an extent of 2 acres 50 cents. The suit property originally belonged to one Perumal Naicker, S/o. Alagar Naicker of Chettikulam. The said Perumal Naicker and his forefathers have enjoyed the suit property from time immemorial, without any interruption. Patta stands transferred in the name of Perumal Naicker. The patta No. is 72. The said Perumal Naicker for a valuable consideration, sold the suit property to the Respondents/Plaintiffs 1 and 2 minors through the third Plaintiff as Father and Guardian as per sale deed dated 20/8/1985. Since the Respondents/Plaintiffs 1 and 2 are minors, their father viz., the Third Respondent/Third Plaintiff has been mentioned as Guardian for minor Respondents/Plaintiffs 1 and 2. As the Guardian of minor Respondents/Plaintiffs 1 and 2, the Third Respondent/Third Plaintiff is in possession and enjoyment of the suit property without any interruption from the date of sale. As regards the suit property, the Respondents/Plaintiffs paid kist in their names. Kist receipts for fasli 1394, 1395 are produced. Adangal extracts are produced in the name of Perumal Naicker for faslis 1385, 1386, 1387, 1389, 1392 and 1393. The Third Respondent/Third Plaintiff is possessing 200 dry animals for manure purpose and he has stored 200 cartful of cow dung in a ditch on the North Western corner of the suit property which will look like a well.
3. Due to recently developed enmity regarding Panchayat Elections, one Sankara Naicker, S/o. Bangaru Naicker of Chettikulam and his son Alagumalai, falsely personating as Perumal Naicker, S/o. Bangaru Naicker of Chettikulam has created some documents in favour of the Appellants/Defendants regarding the suit property and another 1 acre 69 cents. The said Sankara Naicker, S/o. Bangaru Naicker is not the real owner of the suit property. He has falsely created some documents in favour of the Appellants/Defendants in order to give trouble to the Respondents/Plaintiffs. Taking undue advantage of the false documents, the Appellants/Defendants are attempting to trespass into the suit property by force.
4. The Respondents/Plaintiffs immediately lodged a complaint to the local Police and they have not taken any action so far. As regards the impersonation and forgery committed by the said Sankara Naicker, the third Respondent/third Plaintiff has filed a complaint before the Learned S.D.J.M Court, Usilampatti, against the said Sankara Naicker, S/o.Bangaru Naicker and his son Alagumalai and two others. The Learned S.D.J.M, Usilampatti, ordered to register First Information Report under Sections 413, 461 of IPC. The Thirumangalam Town Police have registered the First Information Report against the said Sankara Naicker, S/o. Bangaru Naicker and his son Alagumalai and two others.
5. The Respondents/Plaintiffs, issued a Lawyer's notice regarding the suit property and another item on 21/5/1986 for which the Appellants/Defendants have sent a reply with false and fraudulent allegation. In the meanwhile, on 30/8/1986, the Appellants/Defendants has come with body of men, attempted to trespass into the suit properties and they have left at the intervention of third parties. The Appellants/Defendants are influential persons and every day, they are threatening the Respondents/Plaintiffs that at any time, they will trespass into the suit property. They have no right to do so.
6. In the circumstances, the Respondents/Plaintiffs have filed a suit praying for the relief of declaration that they are alone entitled to the suit property and also sought the relief of permanent injunction restraining the Appellants/Defendants and their men in any way interfering with the peaceful possession and enjoyment of the suit properties by the Respondents/Plaintiffs.
7. WRITTEN STATEMENT PLEAS OF THE SECOND APPELLANT/SECOND DEFENDANT (ADOPTED BY D.1 AND D.3 TO D.6):- The third Respondent/Third Plaintiff is a seasoned litigant and it is his habitual practice to create false and fraudulent documents by impersonating others and by committing forgery with intend to get illegal gain through such bogus transactions. One among such transactions is the sale deed in favour of the Respondents/Plaintiffs 1 and 2, said to have been executed by Perumal Naicker, S/o. Alagar Naicker of Chettikulam Village. The alleged sale deed dated 20/8/1985 is not a true and valid document. No consideration has been passed in the aforesaid sale deed. It is fraudulently a created one.
8. The suit property viz., 2 acres and 50 cents in S.No.32/1 comprised in patta No.72, originally belonged to Perumal Naicker, S/o. Vankaru Naicker of Chettikulam Village. The said Perumal Naicker's father-in-law is one Perumal Naicker. The suit property has been assigned to Perumal Naicker, S/o. Vankaru Naicker by the Revenue Board as per Proceedings in R.Dis.2814-55. Ever since, the said Perumal Naicker has been in continuous possession and enjoyment of the suit property as absolute owner. The patta number for the suit property is 72 in the name of the said Perumal Naicker. He has been paying the kist to the Government.
9. The said Perumal Naicker is also called as Sankar Naicker in the Village. He has also other alias names as Chinna Sankar Naicker and Sankar Naicker. His elder brother is one Sankar Naicker. Their father's name is only Vankaru Naicker and not Bangaru Naicker. The villagers will slip the word 'va' and used to spell it as 'Ba'. Because of the slip, the said Perumal Naicker's father's name used to be spelt by some of the villagers as Bangaru Naicker. But, the real name is only Vankaru Naicker. The third Respondent/third Plaintiff, who is a mischief monger in the Village, and who is well versed with litigations appears to have planned to take advantage of the confusion regarding the name of Perumal Naicker and their father and has created false and bogus documents. Sankara Naicker referred to in para 5 of the plaint and the Second Appellant/Second Defendant's vendor is one and the same person. The allegation in para 5 of the plaint that Sankar Naicker, S/o.Bangaru Naicker is not the real owner of the suit property is not correct.
10. Perumal Naicker, S/o.Vankaru Naicker, is the original owner of the suit property. He along with his son Alagumalai has been in continuous possession and enjoyment of the suit property without any interruption from anybody much less from the Third Respondent/Third Plaintiff and his alleged vendor. While that being the case, it is futile to contend that the property in S.No.32/1 measuring 2 acres and 50 cents belonged to one Perumal Naicker, S/o.Alagar Naicker that the said Perumal Naicker and his forefathers enjoyed the suit property from time immemorial without any interruption.
11. The Second Appellant/Second Defendant's vendor Perumal Naicker and the Third Plaintiff are not in talking terms for the past several years. The third plaintiff is a mischief monger in the Village and he is well versed with the litigations. Taking advantage of the small confusion in the names, the Third Respondent/Third Plaintiff had conspired together with one Bommi Naicker, S/o. Koppi Naicker, Jeyakodi, S/o. Alagarsamy both of Perumalpatti Village, one P.V.Ramasamy Naidu of Vidathakulam Village and one Thiruvenkidappa Naicker of Sengappadai Village and with an intend to get the suit property by some means unknown to law. They are the close associates of the Third Respondent/Third Plaintiff. With their help, the third Respondent/third Plaintiff has fraudulently brought about the sale deed in the name of his minor's son's by committing the offence of criminal conspiracy, abetting, forgery and impersonation.
12. The Second Appellant/Second Defendant on enquiry bonafide believe that the said Bommi Naicker has signed in the sale deed dated 20/8/1985 as Perumal Naicker, S/o. Alagar Naicker and has impersonated him before the Sub- Registrar, Thirumangalam.
13. The Appellants/Defendants are owning the properties adjacent to suit property. During November 1985, the said Perumal Naicker, S/o. Vankaru Naicker approached the Appellants/Defendants offered to sell the suit property. The Second Appellant/Second Defendant and his another brother viz., the First Appellant/First Defendant, accepted the offer and agreed to purchase the same. The sale price has been fixed at Rs.35/- per cent and the sale agreement has been entered into on 24/11/1985 and an advance of Rs.306/- has been paid to Perumal Naicker. Subsequently, the said Perumal Naicker also offered to sell his property in S.No.32/2 measuring 1 acre and 69 cents. On 21/4/1986, the said Perumal Naicker for himself and on behalf of his minor son Arumugam and his major son Alagumalai, executed a registered sale deed in favour of the Appellants/Defendants for a sum of Rs.14,665/-. Consideration has been duly paid to the vendors and the Second Appellant/Second Defendant for himself and on behalf of his other brothers has taken possession of the entire properties. The Second Appellant/Second Defendant also ploughed the suit property with a tractor during the beginning of September 1985. While ploughing, the Third Respondent/Third Plaintiff and his men sought to give disturbances and stop the ploughing. But, they have been driven out successfully.
14. The second Appellant/Second Defendant is residing at Madurai. Taking advantage of the absence on the spot, the Third Respondent/Third Plaintiff has trespassed into a small portion of the suit property and has high handedly stored 'cow dung manure'. After the Third Respondent/Third Plaintiff has filed the suit for declaration and injunction as if he is in possession and enjoyment of the suit property on behalf of the minor son. He had got an ex parte order of appointment of an Advocate Commissioner to inspect the suit property.
15. So far, the Respondents/Plaintiffs have not chosen to take any steps for inspecting the suit property. Therefore, neither the Third Respondent/Third Plaintiff nor their alleged vendors have ever been in possession and enjoyment of the suit property. The alleged sale deed is not binding upon the Second Appellant/Second Defendant and his vendors. The patta has been standing in the name of the Second Appellant/Second Defendant and his name alone has been entered in the Adangal accounts. The payment of kist by the Respondents/Plaintiffs to the suit property is of 'no value' as they have no title to the suit property.
16. The Second Appellant/Second Defendant is not aware of the allegations made in para 6 of the plaint. When enquired at a later stage by the Police, he has explained the real facts (i.e., subsequent to the suit). For the notice issued by the Plaintiff, the Second Appellant/Second Defendant has sent detailed reply and correct particulars.
17. The suit claim is not maintainable and the suit framed is not maintainable. The Respondents/Plaintiffs have no cause of action to the suit. The cause of action alleged in the plaint are of false and imaginary. The sale deed dated 20/8/1985 is a fraudulent and forged one. It is not true, valid and binding upon the Appellants/Defendants.
18. Before the trial Court, in the main suit, 1 to 4 issues have been framed for adjudication. On behalf of the Respondents/Plaintiffs, witnesses P.Ws.1 and 2 have been examined and Exs.A.1 to A.12 have been marked. On the side of the Appellants/Defendants, witnesses D.Ws.1 and 2 have been examined and Exs.B.1 to B.25 have been marked. Also, C.1 Commissioner's Report and Ex.C.2 Commissioner's Plan of the suit property have been marked.
19. The trial Court, on an appreciation of oral and documentary evidence available on record, has come to a resultant conclusion that Ex.A.1 sale deed dated 20/8/1985 is not a true and valid document and further, opined that, it cannot be taken into account that on the date of filing of the plaint, the Respondents/Plaintiffs have been in possession of the suit property and has not granted the relief of declaration as well as the permanent injunction and consequently, dismissed the suit without costs.
20. Being dissatisfied against the Judgment and Decree of the trial Court dated 3/9/2003 in O.S.No.510 of 1986, the Respondents/Plaintiffs have filed A.S.No.14 of 2004 on the file of the Learned III Additional Sub-Judge, Madurai as aggrieved persons.
21. The First Appellate Court viz., III Additional Sub-Judge, Madurai, while delivering the Judgment in Appeal on 30/9/2005 has interalia observed that Ex.A.1 Sale deed dated 20/9/1985 and that Ex.B.17 Sale deed is dated 21/4/1986 and if an Encumbrance Certificate has been taken as per Ex.B.17 sale deed in respect of the suit property, then there would have been an entry as regards Ex.A.1 Sale deed. Further, the vendors in Ex.B.17 would have taken action against the Respondents/Plaintiffs and their predecessors, viz., Perumal Naicker. But, they failed to do so and therefore, the finding of the trial Court that Ex.A.1 is an invalid document is not a correct finding. Further, the Respondents/Plaintiffs, after obtaining Ex.A.1 Sale Deed have changed the patta and resultantly, allowed the Appeal with costs.
22. Feeling aggrieved against the Judgment and Decree made in A.S.No.14 of 2004 dated 30/9/2005, the Appellants/Defendants have preferred the Second Appeal before this Court.
23. At the time of admission of the Second Appeal, this Court has framed the following substantial questions of law for determination.
"1. Whether the Lower Appellate Court is right in finding that Ex.A.1 sale deed is valid and true, particularly, when the execution of the same is not proved by examining competent witnesses and moreover, P.W.1 himself admitted that no sale consideration was passed and hence the oral evidence of P.W.1 on the other aspect has to be excluded under Section 92 of Indian Evidence Act?
2. Whether the Lower Appellate Court is right in reversing Judgment and Decree of the trial Court, by shifting the burden of proof on the defendants stating that Ex.B.17 has not been proved by the defendants without following the basic principle that the plaintiffs should stand on the strength of his own case and not to rely on alleged weakness of the defendant's case as laid down in 1998 (2) CTC - 157?
3. Whether the Lower Appellate Court is right in reversing the judgment and decree of the trial Court without framing the points for determination and without deciding the points independently as fresh as provided under Order 41 Rule 31 of the Code of Civil Procedure, which mandatory in nature and to be strictly followed as laid down in 2004 (2) MLJ - 283 and 1997 (1) CTC 26 and 559?"
24. THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTIONS OF LAW Nos. 1 AND 2:- The Learned counsel for the Appellants/Defendants contends that the Judgment and Decree of the First Appellate Court in A.S.No.14 of 2004 dated 30/9/2005 are contrary to law, weight of evidence and probabilities of the case.
25. The Learned counsel for the Appellants/Defendants contends that the First Appellate Court viz., the learned III Additional Sub-Judge, Madurai, failed to appreciate that the Respondents/Plaintiffs' vendor has no prior title to the suit property, so as to alienate the same as per Ex.A.1 sale deed.
26. It is the submission of the Learned counsel for the Appellants/Defendants that Ex.A.1 Sale deed dated 20/8/1985 has not been properly executed by a proper person and no sale consideration has passed and as such, the said Ex.A.1 Sale deed has not been proved by the Respondents/Plaintiffs as per the provisions of the Indian Evidence Act.
27. According to the learned counsel for the Appellants/Defendants, the Respondents/Plaintiffs have no manner of right in respect of the suit property and the Respondents/Plaintiffs have not examined the competent witnesses to the sale Deed Ex.A.1 dated 20/8/1985. Therefore, the Respondents/Plaintiffs cannot claim any valid title to the suit property on the basis of Ex.A.1 sale deed dated 20/8/1985.
28. Continuing further, the Learned counsel for the Appellants/Defendants, projects an argument that the Respondents/Plaintiffs have not filed any document before the trial Court to show that they are in possession and enjoyment of the suit property, so as to establish their case for obtaining the relief of injunction.
29. Added further, the Appellants/Defendants take a stand that the Defendants' vendor Perumal Naicker is the real owner of the suit property, who has been assigned with the land by the Government as substantiated by Exs.B.1 to
4. Also, the vendor Perumal Naicker rightly conveyed the same to the Appellants/Defendants as per Ex.B17 sale deed dated 21/4/1986.
30. Lastly, it is the contention of the Learned counsel for the Appellants/Defendants that the First Appellate Court committed an error in placing reliance on Ex.C.1 Commissioner's Report and Ex.C.2 Commissioner's Plan, which is an ex parte commission and the said inspection has been carried out by the Commissioner without notice and as such the report of the Commissioner has no evidentially value in law.
31. Per contra, it is the submission of the learned counsel for the Respondents/Plaintiffs that the First Appellate Court has clearly observed in its Judgment in Appeal that if the sale consideration amount has not been received by the vendors, then the said issue is between the vendor and purchaser. Further, for receipt of balance sale consideration, proper proceedings will have to be initiated by the vendors and therefore, the Judgment of the trial Court that Ex.A.1 Sale deed in favour of the Respondents/Plaintiffs is not a valid one cannot be accepted and also, rightly, allowed the Appeal with costs, which need not be disturbed by this Court.
32. The Learned counsel for the Appellants/Defendants cites a decision of this Court in V.MANAKKAN AND FIVE OTHERS Vs. VEERA PERUMAL reported in 1998 (II) CTC - 157, wherein it is held that "no documents have been produced to show that the suit property has been in possession of the Plaintiff in his own right and as such, the possessional right cannot be recognised and further, it is held that the Plaintiff should stand or fall on the strength of his own case and not rely on alleged weakness of Defendant's case."
33. The Learned counsel for the Respondents/Plaintiffs relies on the decision of this Court in JANAKI DEVI Vs. R.VASANTHI AND OTHERS reported in 2005 (1) CTC - 11, wherein at page Nos.11 and 12, it is held that "Section 69 of the Evidence Act provides for proving attestation by examining someone who is acquainted with hand writing of at least one attesting witness and such witness should depose that signature of attesting witness found in Will is that of that attesting witness whose signature he is familiar with, etc."
34. He also seeks in aid of this Court in CHELLAPPA GOUNDER (DIED) AND OTHERS Vs. RAMASAMI GOUNDER alias KARUPPA GOUNDER (DIED) AND OTHERS reported in 1998 (3) MLJ - 372, wherein it is held as hereunder:-
"Payment of the price is not necessarily a sine qua non to the completion of the sale if the intention is that the property should pass on registration. The sale is complete as soon as the deed is registered, whether the price has been paid or not.
The intention seems to be clear that the parties wanted to convey title to the plaintiff on and from the date of Ex.A.2.
There is no other evidence to show that Ex.A.2 has not come into effect, except the oral evidence. The lower appellate Court has rightly come to the conclusion that under Ex.A.2 title passed on the plaintiff.
If the possession of the appellant and second defendant was only that of the agents of the plaintiff, there cannot be any question of adverse possession and limitation. The possession of the appellant must be deemed to be the possession of the plaintiff himself."
35. For better and fuller appreciation of the merits of the case, it is useful for this Court to make a reference to the evidence of P.Ws.1 and 2 and D.Ws.1 and 2.
36. The evidence of P.W.1 (Third Respondent/Third Plaintiff) is to the effect that the first and second Respondents/Plaintiffs are his sons and the suit properties total extent is 2 acres and 50 cents in S.No.32/1 at Chettikulam and his relationship with that of Perumal Naicker is like that of his Uncle and that the suit property has been enjoyed by the said Perumal Naicker. Moreover, while the suit property has been in enjoyment of Perumal Naicker, he has purchased the same in the name of his sons, viz., Krishnamurthy, Ramamurthy and at the time of purchase, his sons are minors and that the sale has taken place in the year 1995, which is Ex.A.1 and for the suit property, at the time of sale, patta No.is 72 and after purchase, they have been in enjoyment of the suit property and Exs.A.2 and A.3 are the kist receipts paid by them and Exs.A.4 and A.5 Adangal extracts are to show that he has been in enjoyment of the suit property.
37. P.W.1 goes on to add in his evidence that in the suit property for keeping the cattle, there has been a shed and in that shed, there are totally 200 cattles and in the suit property, they used to raise punja crops and in the Panchayat Election, a quarrel arose between himself and Sankara Naicker's sons and because of the said enmity, his property has been written in favour of another person by creating false documents.
38. Further more, it is the evidence of P.W.1 that by changing the name and by committing an impersonation, the property has been changed and after impersonation, the property has been sold to the Defendants and in the suit property, Sankara Naicker and others have no share and the said Sankara Naicker has no right to sell the suit property to the Appellants/Defendants and since no action has been taken on his complaint by the Police, he has filed the suit.
39. P.W.1 in his cross-examination has clearly deposed that he has not got the documents to show that the suit property belongs to Perumal Naicker at the time of his purchase and he has purchased the suit property when patta has remained in the name of Perumal Naicker and Perumal Naicker expired fifteen days after the execution of sale deed in his favour.
40. P.W.1 has also deposed that he has purchased the suit property from Perumal Naicker for a sum of Rs.10,000/- and that he has not given any advance amount and after execution of sale deed only he has paid the money but in the document, it has written as if the money has been received on the same day and further, that he has not paid the money either on the date of writing the sale deed or at the time of registering of the said document and he has paid the money in the house.
41. P.W.1 has also stated in his evidence that before filing of the suit, Ex.A.11 patta has been issued to him and he has not mentioned the change of patta in his name in the plaint and in Ex.A.11 patta, the name of Azhagarsamy Naicker, S/o. Perumal Naicker has been written in black ink and later, it has been scored out.
42. P.W.2 in his evidence has deposed that his father sold the property to the two Plaintiffs. He knows about the same and in Ex.A.1 Sale Deed, his son Jayakodi has signed as a witness and another witness Thiruvengadappa Naicker in Ex.A.1 has expired and Jayakodi is not in the village and now, is in Coimbatore and his father has no alias names and the suit property has not been enjoyed by the Appellants/Defendants at any point of time.
43. P.W.2 in his cross-examination has deposed that at the time of writing of Ex.A.1 sale deed, he has not come to the Stamp Office and therefore, he does not know in Ex.A.1 sale deed, Perumal Naicker has signed and Rs.10,000/- has not been paid as an advance and that the same amount of Rs.10,000/- has been paid in the house after the writing of the sale deed and it is incorrect to state that the suit property has not been enjoyed by the Respondents/Plaintiffs and not only enjoyed by the Appellants/Defendants.
44. D.W.1 (First Appellant/First Defendant) in his evidence has deposed that Defendants 2 to 6 are his younger brothers and the suit property has come to Perumal Naicker from Revenue Court as per Jari and after Jari, Thirumangalam Tahsildar has ordered for changing the Village accounts and Ex.B.1 is the original copy sent to Perumal Naicker and Exs.B.2 to B.4 are the notices received from the Government by Perumal Naicker at the time of Jari and the suit property has been in enjoyment of Perumal Naicker and his son Alagumalaiya and Exs.B.5 to B.12 are the kist receipts in respect of the suit property by Perumal Naicker to show his enjoyment and Perumal Naicker has been called as Chinnasankara Naicker and Sankara Naicker in the village and Perumal Naicker's father's name is Vangaru Naicker and by slip of the tongue, Vangaru Naicker has been called as Bangaru Naicker and hence in Exs.B.5 to B.12 kist receipts, the name of Vangaru Naicker and Bangaru Naicker will find a place and in reality, Perumal Naicker has not sold the suit property to the Respondents/Plaintiffs and Ex.A.1 is a forged document.
45. It is the evidence of D.W.1 that after Perumal Naicker, patta might have been changed in the name of the Respondents/Plaintiffs and that the suit property has been purchased by them from Vangaru Naicker's son Perumal Naicker.
46. D.W.2 in his evidence has deposed that his father's name is Perumal Naicker and for the suit property, patta is in the name of his father and his father has paid the kist in respect of the suit property and in the kist receipts, the names of Perumal Naicker, Sankara Naicker and younger Chinna Naicker are entered alternatively and his father has been called in the Village as Perumal Naicker, Sankara Naicker and also as younger Naicker and the suit properties have been sold by them to Auditor Gopala Krishnan and another land has been sold to Gopala Krishnan at the rate of Rs.35/- per cent and Ex.B.17 is the sale deed and in Ex.B.17 sale deed, his signature is there and it is incorrect to state that his father's name is Bangaru Naicker and Ex.A.1 filed on behalf of the Respondents/Plaintiffs is a false document.
47. D.W.2 in his further evidence has deposed that it is incorrect to state that at the time of sale either himself or others are not been in enjoyment of the suit property and it is not correct to state that Ex.B.17 is an invalid document.
48. The Learned counsel for the Appellants/Defendants contends that in Ex.A.1 sale deed dated 20/8/1985, the vendors left thumb impression in five pages are not there and only in the sixth page, the left thumb impression of Perumal Naicker, his son and therefore, the sale deed is not a valid one in the eye of law.
49. Conversely, it is the contention of the Learned counsel for the Respondents/Plaintiffs that the absence of left thumb impression of Perumal Naicker in five pages of Ex.A.1 Sale deed will not invalidate the document in law because of the fact that in the sixth page of Ex.A.1 Sale deed, left thumb impression of Perumal Naicker is seen.
50. Proceeding further, the Learned counsel for the Respondents/Plaintiffs submits that Sections 52 and 58 of the Registration Act, 1908 casts certain duties upon the Registering Authority followed by an endorsement by the Registering Officer as per Section 59 of the Act. Also, the Certificate of Registration as per Section 60 of the Act recognises these acts as a solemn one.
51. It cannot be gainsaid that Registration by itself in all cases is not proof of execution. In HUCHEGOWDA Vs. CHENNIGEGOWDA reported in AIR 1953 Mys - 49, it has laid down as follows:-
"Evidence that a document was duly registered is some evidence of its execution by the person by whom it purports to have been executed."
52. In this connection, it is useful to refer to Section 52 of the Registration Act, 1908 which enjoins as follows:-
"Duties of registering officers when document presented:- (1)
(a) The day, hour and place of presentation, and the signature of every person presenting a document for registration, shall be endorsed on every such document at the time of presenting it;
(b). a receipt for such document shall be given by the registering officer to the person presenting the same; and
(c). subject to the provisions contained in Section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission.
(2) All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector General."
53. Further, Section 58 of the Registration Act, 1908, speaks as follows:-
"Particulars to be endorsed on documents admitted to registration: (1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a registering officer under section 89, there shall be endorsed from time to time the following particulars, namely:
(a). the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
(b). the signature and addition of every person examined in reference to such document under any of the provisions of this Act; and
(c). any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
(2). If any person admitting the execution of a document refuses to endorse the same, the registering officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.
STATE AMENDMENT Tamil Nadu In Section 58,-
(i) in sub-section (1), after item (a), the following item shall be inserted, namely:-
"(aa) in the case of a document for sale of property, the signature and addition of every person admitting the claim under such document, and, if such claim has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;":
(ii) in sub-section (2), after the expression "execution of a document", the expression 'and in the case of a document for sale of property, any person admitting the execution of such document, or any person admitting the claim under that document" shall be inserted.
{Vide Tamil Nadu Act 28 of 2000}"
54. As a matter of fact, the admission of execution made by an individual executing a document before a Registering Officer is evidence of execution against him, but not against a third party as per decision LAKSHMAYYA VS. TIRUPATHAMA reported in AIR 1958 AP - 720.
55. It cannot be lost sight of that, an omission to endorse the signature is a mere 'defect in procedure' within the meaning of Section 87 of the Registration Act and "it does not invalidate the Registration, provided the admission itself is recorded" as per decision MAN BHARI Vs. NAUNIDH reported in (1881) 4 ALLAHABAD - 40 at page Nos.44 and 45.
56. Section 58 of the Registration Act, among other things states that, the signature of every person admitting execution and every person examined with reference to the document (example identifying witnesses) should be taken on the document.
57. Section 59 directs the Registering Officer to affix his signature on all endorsements made as per Sections 52 and 58 of the Act. The certificate of Registration as per Section 60 of the Registration Act is to be endorsed after the provisions of Sections 34, 35, 58 and 59 have been complied with as per decision VEERAPPA Vs. KADIRESAN (1913) 24 MADRAS LAW JOURNAL - 664.
58. The fact that the document has endorsed on it a certificate of registration is a prima facie evidence that the requirements of the Registration Act have been complied with. After such endorsement, the burden of proving any act or omission which would invalidate the registration, lies on the person who challenges the registration as per decision VENKATA RAMA RAO Vs. BHASKARARAO reported in AIR 1962 ANDHRA PRADESH - 29.
59. In order to constitute a sale, there ought to be a transfer of ownership from one person to another viz., all rights and interest in the properties which are possessed by the individual or transferred by him to another individual. Admittedly, the transfer of ownership, has to be for a 'price paid or promised or part-paid and part-promised'. Price is an essential ingredient of the sale transaction. Even, if the whole price is not paid, but the document is executed and thereafter, registered, if the property is of the value of more than Rs.100/-, the sale will be complete as per decision of the Honourable Supreme Court in VIDHYADHAR Vs. MANIKRAO reported in (1999) 3 SCC - 573 at page 590.
60. The payment of price is not an essential sine qua non in regard to the completion of sale. If the intention is that the property should pass on registration, the sale is complete as soon as the deed is registered irrespective of whether the price has been paid as per the decision PONNAYA GOUNDAN Vs. MUTTU reported in (1894) ILR 17 Madras - 146. The purchaser is entitled to sue for possession of though, he has not paid the price as per decision GOVINDAMMAL Vs. GOPALACHARIA reported in (1906) 16 Mad IJ - 524. Even if a person has paid only part of the money to a person as sale consideration and the balance amount which has been shown to have been paid before the execution of the deed is in fact, not paid, then the sale deed would not, for that reason, become invalid, in view of Section 54 of the Transfer of Property Act, 1882, in the considered opinion of this Court.
61. Also, the mere fact of non-payment of consideration will not make the sale deed a fictitious one, as opined by this Court.
62. The object of Registration and delivery of possession is to publish to the whole world that such a document has been executed. To put it differently, it is a notice to the entire world.
63. A sale is sale whether price is paid or promised to be paid. Also, a sale is complete on the execution of deed. The formality of registration has nothing to do with passing of title. Even, if no consideration is paid, title passes registration as per the decision BHONULAL CHOWDHURY V. VINCENT reported in AIR 1922 PATNA - 619. Indeed, the title under sale deed passes on the date of execution of the sale deed. Further more, sale is effective from the date of execution and not from the date of registration as per decision CHRISTINE PAIS V. UGAPPASHETTY reported in AIR 1966 MYSORE - 299.
64. It is to be pointed out that Section 91 of the Indian Evidence Act, pertains to evidence on the terms of contract, grants and other dispossession of parties reduced to form of document. This Section merely prohibits proving the contents of writing otherwise than by writing itself. It is covered by the ordinary Rule of Law of Evidence, applicable not merely to solemn writing of the sort named but to others known sometimes as the best rule. It is in reality, declaring a doctrine of the substantive law viz., in the case of a written contract that of all proceedings and contemporaneous oral expressions of the thing or merged in the writing or displaced by it (vide THAYER'S PRELIMINARY LAWS on Evidence at page Nos.397 and 398).
65. Section 92 forbids admission of any evidence for the purpose of contradicting varying adding to or subtracting from the terms of such document.
66. It is to be remembered that Section 91 of the Indian Evidence Act deals with exclusiveness of documentary evidence. Section 92 of the Act relates to its conclusiveness or have been called 'parole evidence' as a matter of fact, Sections 91 and 92 of the Indian Evidence Act supplement each other. Section 91 would be inappropriate without the help of Section 92 of the Evidence Act is in operative without the aid of Section 91.
67. In (MOHAMMED SHERIFF ALNAHARY, Rep. BY ITS ATTORNEY, T.VENKATACHALAM Vs. K.T.KUNJUMON, reported in 2002 - 2 L.W. - 63, wherein it is held as follows:-
"As rightly contended by the learned counsel appearing for the plaintiff, Ss.91 and 92 of the Evidence Act would go into play clearly prohibiting the oral evidence, which is placed by the defendant's side contrary to the terms and conditions of the written agreement under Ex.A.2. Sec. 91 of the Evidence Act based on "best evidence rule" can be called as an exclusive rule, since it excludes the admission of oral evidence for proving the contends of the documents, except in cases where the secondary evidence is allowed to be let in under the relevant provisions of the Evidence Act. Needless to say that the best evidence about the contents of the document is the document itself and the production of the document what is required under Sec.91 is in proof of the contents. Sec.92 of the Evidence Act does not bar the consideration of any document. But it prohibits the admission of oral evidence which would be contrary to the terms of the agreement. Undoubtedly Ss.91 and 92 of the Evidence Act lay a complete bar to set up a case that the consideration for the transaction mentioned in the agreement is more than what is found in the conveyance or in the contract. The first Bench of this Court had an occasion to consider this aspect in a decision reported in AIR 1965 Madras 147 = (1964) 77 L.W. 622 (K.S.NARASIMHACHARI V. THE INDO COMMERCIAL BANK LTD AND ANOTHER) and held that the party may be entitled to show that the consideration was different kind from the consideration shown in the document or that the full consideration shown in the document has not been paid or there was a failure of consideration was more or less the consideration shown in the agreement. It is admissible in evidence to prove the existence of a separate oral agreement as to any matter of which the document is silent, provided the said oral agreement is not inconsistent with the terms of the contract."
68. A perusal of Ex.A.1 sale deed dated 20/8/1985 shows that in the said document, Perumal Naicker has affixed his left thumb impression as an identifying witness and another person one Ramasamy Naidu has also signed as another identifying witness. Ex.A.1 dated 20/8/1985 is a registered sale deed and in the said document, witnesses Jayakodi, S/o. Alagarsamy and another Sengappan has signed. Ex.A.1 has been written by Gurusamy Pillai.
69. Ex.B.17 is the sale deed dated 21/4/1986 executed in favour of A.V.Subramanian and five others (Appellants/Defendants) by V. Perumal Naicker, S/o.Vangaru Naicker for himself and on behalf of minor son Arumugham and major son P.Alagumalai. The said sale deed is in respect of 2 acres 50 cents punja lands in S.No.32/1 and in respect of 1 acre and 69 cents punja lands in S.No.32/2 at Chettikulam Village in Thirumangalam Taluk. The recitals of Ex.B.17 sale deed indicates that the schedule mentioned properties of the sale deed belonged to them ancestrally and they have been in enjoyment of the same by paying kist etc. The sale consideration in Ex.B.17 is mentioned as Rs.14,665/-.
70. At this stage, it is relevant for this Court to point out that, since in Ex.A.1 sale deed dated 20/8/1985 Perumal Naicker's left thumb impression is not seen in first five pages and only in sixth page, his left thumb impression is seen, it cannot be said by any stretch of imagination that Ex.A.1 Sale deed is an invalid one. The reason being the said Ex.A.1 sale deed dated 20/8/1985 has been registered in the office of the Sub-Registrar and the document has been accepted by Sub-Registrar without any demur/objection.
71. As narrated supra, even in the absence of Perumal Naicker's left thumb impression in the first five pages of Ex.A.1 sale deed since Perumal Naicker's left thumb impression is found in the sixth page of Ex.A.1 Sale deed, the said sale deed is a valid one because, the said document has been registered and the omission of Perumal Naicker's left thumb impression in the first five pages of Ex.A.1 sale deed will not make the said document as an inoperative one or invalidates the same in the considered opinion of this Court.
72. The Certificate of Registration of Ex.A.1 sale deed as per Section 60 of the Registration Act is a prima facie evidence of execution of the sale deed and the same is quite relevant for proving the execution. The mere fact that Ex.A.1 sale deed is duly registered is some evidence and its execution by the person by whom it perperts to have been executed. Therefore, even in the absence of Perumal Naicker's left thumb impression in the first five pages of sale deed in Ex.A.1, the said document is not an invalid one.
73. Per contra, since Perumal Naicker's left thumb impression is seen in the first page of the sale deed Ex.A.1 dated 20/9/1985 and further, when Ex.A.1 sale deed has been registered and accepted by the registration and authorities, it is to be presumed that the ingredients of Registration Act are complied with, as opined by this Court.
74. Coming to the aspect of evidence of P.W.1 (Third Respondent/Third Plaintiff) to the effect that he has purchased the suit property from Perumal Naicker for a sum of Rs.10,000/- for which he has not paid any advance amount and only after execution of sale deed, the next day, he has paid the amount, it is to be pointed out that in Ex.A.1 sale deed, it is mentioned that the amount has been received on the same day. Further, that either on the date of writing of the sale deed or at the time of registration of the sale deed, he has not paid the money. It is to be mentioned that the said evidence of P.W.1 cannot be taken advantage by the Appellants/Defendants for the simple reason that if the price for Ex.A.1 sale deed dated 20/9/1985 has not been paid, then, it is an inter se matter between the seller and the purchaser and on that basis, Ex.A.1 sale deed cannot be invalidated or attacked and the only option open to the affected is to file a suit for claiming the balance unpaid or to claim the price, viz., the consideration. If the purchaser has not paid the money/sale consideration, then a vendor has a lien. When that being the factual legal position, the contra view taken by the trial Court that Ex.A.1 sale deed dated 20/9/1985 is an invalid document, etc., is not accepted by this Court. Also, because of the evidence of P.W.2 that he has not gone to the Registrar's office at the time of writing of Ex.A.1 sale deed, it cannot be concluded that Ex.A.1 sale deed dated 20/9/1985 is an invalid document in the eye of law.
75. A perusal of Ex.A.11 patta shows that originally it has been written in the name of Perumal Naicker, S/o.Azhagarsamy Naicker and it has been scored out and signed by the Special Tahsildar on 25/9/1986 after scoring out the name of aforesaid Perumal Naicker. The minors name viz., Ramurthy and Krishnamurthy, Father and Guardian, Seeni @ Azhagarsami Naicker's name have been written in red ink and petition No.16/86 is also mentioned. Therefore, Ex.A.11 patta for fasli 1396 in respect of S.No.32/1 has been changed from the name of Perumal Naicker to that of minors Ramurthy, Krishnamurthi, represented by Father and Guardian. After making the corrections, the Special Tahsildar, has signed on 25/9/1986 in Ex.A.11 patta. Therefore, it is quite evident that after Ex.A.1 sale deed dated 20/8/1985, the purchasers name have been altered in Ex.A.1 sale deed by means of Petition No.16/86 and accordingly, the Tahsildar has made the corrections and affixed his signature on 25/9/1986 as mentioned earlier. Though in Ex.Bl1 sale deed dated 10/3/1973 to and in favour of the Appellants/Defendants executed by Perumal Naicker and others it is stated that the schedule properties therein are their ancestral properties etc., no endeavour has been made on behalf of the Appellants/Defendants to prove before the trial Court how the suit properties belonged to their vendors ancestrally. The sale deed Ex.B.17 is dated 21/4/1986. But Ex.A.11 patta has been altered from the name of Perumal Naicker to that of the Respondents/Plaintiffs on 25/9/1986 after their purchase through Ex.A.1 sale deed dated 20/8/1985.
76. In Law, before purchasing a property, an individual will have to verify the property documents viz., the antecedents, title deeds, encumbrance certificates, mortgage deed, if any etc. Since the Respondents/Plaintiffs have purchased as per Ex.A.1 sale deed dated 20/8/1985 before their purchase, as per Ex.B.1, the Appellants/Defendants ought to have obtained the encumbrance certificate or should have made enquiries with the Sub-Registrar Office as to the encumbrance certificate surrounding the suit property, if any. But such an endeavor has not been made by the Appellants/Defendants in the instant case on hand before us. For the suit properties patta No. is 72.
77. P.W.1 in his evidence has stated that after purchasing the suit property as per Ex.A.1 sale deed dated 20/9/1985 that they are in enjoyment of the same and they have paid Exs.A.1 and A.2 kist receipts and Exs.A.4 to A.9 are Adangal copies and in the suit property, they have constructed a cattle shed and they have been enjoying the same by keeping 200 cattles in the cattle shed.
78. It is the categorical evidence of P.W.1 that Perumal Naicker has been in enjoyment of the suit property, he has purchased the same. P.W.1 has purchased the suit property for himself and on behalf of minor sons Ramurthy and Krishnamurthy and further, he has denied that Perumal Naicker has no two names like Chinnasankara Naicker and Periyasankara Naicker. Further, the specific case of the Respondents/Plaintiffs is that because of the enmity and trouble that has arisen during Panchayat Election between himself and Sankara Naicker's children, Ex.B.1 has been falsely created. Moreover, by an act of impersonation, the property has been changed and in that way, the Appellants/Defendants have purchased the property and that Sankara Naicker and others have no right in the suit property.
79. P.W.2 in his evidence has deposed that it is incorrect to state that his father Perumal Naicker and the person mentioned in Ex.A.1 as Perumal Naicker are different persons.
80. If the person sells the property to another person, after sale, the right of the vendor ceases. Only the purchaser of the property through a sale deed is required to take necessary steps to alter his names in the Government/Revenue records in the manner known to law. In the present case on hand, as evidenced by Ex.A.11, the Respondents/Plaintiffs have altered the patta in their name by virtue of Ex.A.1 sale deed dated 20/8/1985. When Ex.A.1 sale deed dated 20/8/1985, is earlier in point of time and when Ex.B.17 dated 21/4/1986 is at a subsequent point of time, then, Ex.A.1 is held to be a valid document and the subsequent sale deed Ex.B.17 is not a valid document. Also the Appellants/Defendants have not let in sufficient evidence before the trial Court to show how their vendors have mentioned in the document that the properties described in the sale deed belongs to them ancestrally and as such it is held by this Court that by virtue of Ex.B.17 sale deed, the Appellants/Defendants will not get title. For the purchase made by the Appellants/Defendants, there is no basis and the said purchase will not confer any title in their favour. As such this Court comes to an inevitable conclusion that the First Appellate Court is right in arriving at a finding that Ex.A.1 sale deed dated 20/8/1985 is a valid and true document even though two witnesses Jayakodi and Sengappan have not been examined. Further, the admission of P.W.1 that no sale consideration has been passed is of little consequence and also that Section 92 of the Indian Evidence Act forbids admission of any evidence for the purpose of contradicting varying, adding to or subtracting from the terms of such document and accordingly, the first substantial question of law is so answered.
81. Also, the First Appellate Court is right in reversing the Judgment and Decree based on the available materials on record and further, it is correct in shifting the onus of proof on the Appellants/Defendants that Ex.B.17 sale deed dated 21/4/1986 has not been proved by the Appellants/Defendants notwithstanding the fact that the Plaintiffs should stand on the strength of his case and not to rely on the weakness of the Defendant's case and accordingly, the second substantial question of law is answered.
82. THE CONTENTIONS, DISCUSSIONS AND FINDINGS ON SUBSTANTIAL QUESTION OF LAW No.3:- The Learned counsel for the Appellants/Defendants that the First Appellate Court in its Judgment in Appeal has framed an omnibus or wholesale point for determination viz., 'Whether the Appeal is to be allowed' and in fact, the First Appellate Court has not formulated the points for determination as per Order 41 Rule 31 of the Code of Civil Procedure which is mandatory in nature and as such the First Appellate Court has committed an error in reversing the Judgment and Decree of the trial Court in O.S.No.510 of 1986 dated 3/9/2003.
83. A cursory perusal of the ingredients of Order 41 Rule 31 clearly envisages that they are mandatory in character. Indeed, the Judgment of the First Appellate Court should mention the reasons for its decision. It is palatable that in a matter open to Appeal, a Court of Law ought to record its findings on all the important points that arise for consideration, so as to avoid a possible remand in case the Court of Law itself occurs with any of the findings. It cannot be said that failure to comply with the ingredients of Order 41 Rule 31 of the Code of Civil Procedure is a mere irregularity. The aim of Order 41 Rule 31 of the Code of Civil Procedure is to clear the pleadings and focus the attention of the Court and of the parties on the specific and rival contentions which crop up for determination.
84. It is not out of place for this Court to mention Order 41 Rule 31 of the Code of Civil Procedure which enjoins as follows:-
"Contents, date and signature of judgment:- The judgment of the Appellate Court shall be in writing and shall state a. the points for determination;
b. the decision thereon;
c. the reasons for the decision and d. where the decree appealed from is reversed or varied, the relief to which the appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.
85. An Appellate Court Judgment must cover all important questions involved in the case. The powers of Appellate Court under Order 41 Rule 32 and 33 are co-exclusive with the powers of trial Court. The First Appellate Court is empowered to frame points for determination and proper issues and decide them, if the trial Court has omitted to frame appropriate issues. Also, the Appellate Court can pass such judgment/order which would do complete justice to the parties.
86. On going through the Judgment of the First Appellate Court in A.S.No.14 of 2004 dated 30/9/2005, this Court is of the considered view that the First Appellate Court has not borne in mind the ingredients of Order 41 Rule 31 of the Code of Civil Procedure. It has admittedly framed an omnibus, a wholesale or a mechanical point for rumination i.e., whether the Appeal is to be allowed which is not a palatable one, in the considered opinion of this Court and obviously, the First Appellate Court has not adverted to the ingredients of Order 41 Rule 31 of the Code of Civil Procedure by framing the necessary points for determination in the manner known to law. Their appears to be a palpable omission by the First Appellate Court in not adhering to the ingredients of Order 41 Rule 31 of the Code of Civil Procedure viz., in not framing the necessary points for determination. But on perusal of the First Appellate Court Judgment in Appeal shows that the First Appellate Court has referred to the evidence of witnesses and has made discussions about Exs.A.1 sale deed, B.17 sale deed and also referred to the trial Court's observations in the suit Judgment. Just because, the First Appellate Court has not framed the necessary points for determination as contemplated under Order 41 Rule 31 of the Code of Civil Procedure and the matter cannot be remanded as a matter of routine. The non-framing of necessary points for determination in Appeal by the First Appellate Court in its Judgment in Appeal will not in any way preclude this Court from dealing with the matter on merits, by exercising discretion and avoiding remand, this Court has dealt with the Second Appeal on merits based on the available oral and documentary evidence on record and accordingly answered the substantial questions of law Nos.1 and 2 as referred to earlier. Accordingly, the substantial questions of law No.3 is so answered against the Appellants/Defendants.
87. In the result, the Second Appeal is dismissed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the First Appellate Court viz., the III Additional Sub-Judge, Madurai in A.S.No.14 of 2004 dated 30/9/2005 are affirmed by this Court, for the reasons assigned in this Second Appeal.
mvs.
To
1. III Additional Sub-Court, Madurai
2. The District Munsif Court, Tirumangalam.