Madras High Court
Alagu Karuppan Chettiar (Died) vs Velusamy on 15 March, 2021
Author: N.Sathish Kumar
Bench: N.Sathish Kumar
S.A.Nos.947 & 948 of 2001
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 15.03.2021
CORAM
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
S.A.Nos.947 & 948 of 2001
S.A.No.947 of 2001
1.Alagu Karuppan Chettiar (died)
:Appellant/Appellant/Plaintiff
2. A.Karuppai Achi
3.A.Nithyanandam
4.A.Padmanaban
5.V.Kalavathi
6.T.Umadevi
7.A.Veliman : Appellants 2 to 7
Vs.
1.Velusamy
2.Arammal
3.Mathivanan : Respondents/Respondents/Defendants
4.A.Rajaram : Respondent
[A2 to A7 and R4 are brought on record as legal
heirs of deceased sole appellant vide order dated
23.09.2019 in C.M.P.No.862 of 2017]
PRAYER:- Second Appeal filed under Section 100 of Code of Civil Procedure,
to set aside the decree and judgment dated 28.11.2000 rendered in A.S.No.124
of 1998 on the file of the First Additional Subordinate Judge, Madurai
confirming the decree and judgment dated 25.02.1998 rendered in O.S.No.431
of 1996 on the file of the District Munsif of Melur by allowing this second
appeal.
http://www.judis.nic.in
1/12
S.A.Nos.947 & 948 of 2001
For Appellants :Mrs.Jessi Jeeva Priya
R1 :Died
For R2 & R4 :No Appearance
For R3 :Mr.P.T.S.Narendravasan
S.A.No.948 of 2001
A.Nithyanantham
:Appellant/Appellant/Plaintiff
Vs.
1.Velusamy
2.Mathivanan : Respondents/Respondents/Defendants
PRAYER:- Second Appeal filed under Section 100 of Code of Civil Procedure,
to set aside the decree and judgment dated 28.11.2000 rendered in A.S.No.125
of 1998 on the file of the First Additional Subordinate Judge, Madurai,
confirming the decree and judgment dated 25.02.1998 rendered in O.S.No.432
of 1996 on the file of the District Munsif of Melur, by allowing this Second
Appeal.
For Appellants :Mrs.Jessi Jeeva Priya
R1 :Died
For R2 :Mr.P.T.S.Narendravasan
JUDGMENT
These two second appeals are arising out of concurrent findings of the Courts below in O.S.No.431 of 1996 and O.S.No.432 of 1996.
2.The parties are arrived at their own ranking, as before the Trial Court. http://www.judis.nic.in 2/12 S.A.Nos.947 & 948 of 2001
3.The brief facts leading to the filing of the present appeal are as follows:
The plaintiff in O.S.No.431 of 1996 is the father of the plaintiff in O.S.No.432 of 1996. It is their case that the suit property ancestrally belong to both of them and they owed a sum of Rs.15,000/- to one Ramanathan Chettiyar and in lieu of the same, they permitted the said Ramanthan Chettiyar to cultivate the property till the amount is repaid on understanding that the amount would not carry any interest. Such an understanding took place seven years prior to the suit. The said Ramanathan Chettiyar, however, allowed the defendants in both suits to be in possession of the property, as the plaintiff had sent a legal notice for recovery of possession, the 3rd defendant namely one Mathivanan has approached through Ramanathan Chettiyar and they took a stand that though Ramanathan Chettiyar has purchased the property through unregistered document dated 29.10.1985, who in turn sold the property in favour of Mathivanan on 27.12.1988. Hence the suits. The 3rd defendant filed a statement denying the contentions of the plaintiff that Ramanathan Chettiyar was permitted to be in possession in lieu of the loan amount. It is their contention that the plaintiffs have sold the property in an unregistered sale deed in favour of Ramanathan Chettiyar for a valuable consideration on 29.10.1985 and Ramanathan Chettiyar was in possession of the property thereafter, he sold the property in favour of the 3rd defendant on 29.12.1988. The 3rd defendant is in http://www.judis.nic.in 3/12 S.A.Nos.947 & 948 of 2001 possession and enjoyment of the property and he is entitled to have the benefit under Section 53A of the Transfer of Property Act and hence prayed for dismissal of the suits in O.S.No.431 of 1996 and O.S.No.432 of 1996.
4.On the side of the plaintiffs P.W.1 and 2 were examined and Ex.A1 to ExA.68 were marked and on the side of the defendants DW1 to DW4 were examined and Ex.B1 to B12 were marked.
5.The trail Court dismissed the suits on the ground that the plaintiffs have not impleaded Ramanathan Chettiyar, despite unregistered sale deed executed in favour of Ramanathan Chettiyar by the plaintiffs on 29.10.1985 under ExB1 and ExB2 similarly 3rd defendant is also in possession of the property subsequent to their purchase under Ex.B3, dated 27.12.1988, besides 3rd defendant is also entitled to get the benefit under Section 53A of the Transfer of Property Act and the first appellate Court dismissed the appeals as against which, the present second appeals are filed.
6.While admitting the second appeals, the following substantial questions of law are framed.
1.Is not the judgment of the lower appellate Court vitiated by reason of accepting the title of the defendants on http://www.judis.nic.in 4/12 S.A.Nos.947 & 948 of 2001 the basis of the unregistered sale deeds?
2.When a person claiming to have purchased the property under an unregistered sale deed and when if the so called purchase as the vendor executes an unregistered sale deed in favour of another purchaser, can the alleged vendor pass on a valid and perfect title to this vendor?
3.When a purchaser of a property claims the the title under an unregistered sale deed, can he resist the suit for declaration of title and for possession by the title holder in law only on the basis of the unregistered sale deed?
4.Is not the possession of the persons claiming under invalid title unlawful and not liable to suffer a decree for possession filed by the lawful owner?
5.When the sale deeds not registered under Section 17 of the Registration Act can they be received in evidence to prove the title of the alleged purchaser?
6.Without any agreement of sale reduced in writing can the defendants raise a plea of protection under Section 53-A of T.P.Act?
7.The learned Counsel appearing for the appellants mainly contended that the Courts below had erroneously held that the 3rd defendant / respondents are entitled to get the benefits under Section 53 A of the Transfer of Property Act. There is no contract to transfer the property by the appellants at any point of time to claim the benefit under Section 53 A of the Transfer of Property Act. http://www.judis.nic.in 5/12 S.A.Nos.947 & 948 of 2001 The respondents claimed to have purchased the property from a person, who did not have any title, cannot claim any right in the suit properties and hence her contention is that even assuming that Ramanathan Chettiyar knows the fact that the unregistered sale deed was executed and the same did not convey any title and at the most the above document can be construed as an agreement for sale and nothing else. Therefore, the respondents claiming the benefit under Section 53 A of the said Act did not arise at all. The Courts below had erred in dismissing the suits and hence prayed for allowing these appeals.
8.The learned Counsel appearing for the respondents mainly contend that the suits have been filed as if Ramanathan Chettiyar was in possession of the property in lieu of the loan amount. In the plaint there is no whisper about Ex.A1 an unregistered sale deed executed in favour of Ramanathan Chettiyar and there is suppression of facts by the plaintiffs, the Courts below rightly appreciated the evidence and came to the conclusion that the plaintiffs contentions is not true. Hence, his contention is that from ExA1 and ExA2, from the year 1985 Ramanathan Chettiyar was enjoying the property, he sold the property in favour of the respondents under ExA3 in the year 1988. Ever since of the above sale, the defendants are enjoying the property and the courts below have rightly appreciated the facts and hence submitted that there is no merit in the second appeals.
http://www.judis.nic.in 6/12 S.A.Nos.947 & 948 of 2001
9.In view of the above submission and also perusal of the materials, it is not in dispute that the suit properties in both suits belong to father and son namely, the plaintiff in O.S.No.431 of 1996 is the father of the plaintiff in O.S.No.432 of 1996. The properties belong to them, this facts has not been disputed on either side. Though it is stated by the plaintiffs that they owe a sum of Rs.15,000/- to one Ramanathan Chettiyar, in lieu of the interest and loan amount, he was allowed to continue in the suit property to cultivate the property till the amount is paid. The specific contention of the defendants is that the plaintiffs have sold the property to Ramanathan Chettiyar under ExA1 and ExA2 dated 29.10.1985. ExA1 and ExA2 unregistered sale deed said to have been executed in favour of Ramanathan Chettiyar, the contention of the plaintiffs that Ramanathan Chettiyar was given possession in lieu of the loan, has not been accepted by the trial Court and by the first appellate Court. The fact remains that the ExB.1 and B2 are only unregistered sale deeds consequently fall within the ambit of Section 17 of the Registration Act, which cannot be looked into for any other purpose except for proving the collateral transaction, which is independent of the main contract. Though ExB1 and ExB2 in favour of the Ramanathan Chettiyar were proved, the same did not convey any title to the property in favour of Ramanathan Chettiyar and his son. It is the contention of the defendants that based on the unregistered documents http://www.judis.nic.in 7/12 S.A.Nos.947 & 948 of 2001 namely Ex.B1 and ExB2 Ramanathan Chettiyar has sold that the property to the 3rd defendant Mathivanan under ExA3 dated 27.12.1988. It is to be noted that the said Ramanathan Chettiyar did not derive any title under ExA1 and ExA2 therefore, again the said Ramanathan Chettiyar conveying title to the 3rd defendant does not arise at all, since originally Ramanathan Chettiyar himself did not derive the title. At the most the said unregistered sale deed can be construed as only an oral agreement for sale between the plaintiffs and the Ramanathan Chettiyar. However, the said Ramanathan Chettiyar has not taken any steps to enforce such contract nor shown any readiness and willingness to contend that he has performed his part of obligation as required under Section 53 A of the Transfer of Property Act to claim any benefit under Section 53 A of the Act.
10.To claim any benefit under Section 53 A of the Transfer Of Property, which reads follows:
“Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or http://www.judis.nic.in 8/12 S.A.Nos.947 & 948 of 2001 the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract”.
The above section makes it clear that only ingriedients of Section 53A are established one can take the benefit under the above provisions of law. Contract in writing signed by the vendor or on his behalf is sine qua non for enjoying the benefit under Section 53 A of the Transfer of Property Act. Admittedly, in this case, the original agreement holder, one Ramanathan Chettiyar has not shown any interest nor had taken any steps to enforce the contract to perform his part of contract. On the other hand, he has in fact by unregistered sale deed dated 27.12.1988 said to have conveyed the property in favour of the 3 rd defendant, who did not derive any title or even interest in the property.
11.Admittedly there is no contract whatsoever between the respondents and the plaintiff therefore, the respondents claiming benefit under Section 53A of the Transfer of Property Act, does not arise at all. Such benefit cannot be pressed into service. Therefore, the person who is in possession of the property and who claims to have come to possession from the 3rd party, who has no title http://www.judis.nic.in 9/12 S.A.Nos.947 & 948 of 2001 or interest over the property cannot claim any benefit under Section 53 A of the Transfer of Property Act. Therefore, the courts below accepting the case of the respondents and extending the benefit under Section 53 A of Transfer of Property Act is nothing but perverse finding recorded by the courts. Even assuming the case pleaded by the plaintiffs as to the nature of the possession by Ramanathan Chettiyar is established, that itself cannot be a ground to deny his title. As per ExA1 and ExA2 plaintiffs parted their possession on 29.10.1985 and they have filed suits within 12 years, ie. on 04.09.1996 therefore, the suit for recovery of possession is well within 12 years and the title is also not in dispute. The Courts below have erred in holding that the respondents are entitled for protection under Section 53 A of the Transfer of Property Act and such finding in view of this Court is erroneous and against law.
12.Accordingly, the above substantial questions are answered. In the result, the judgment of the Courts below are set aside and the suits are decreed as prayed for. Accordingly, Registry is directed to draft decree in tune with the prayer of the plaints. Both second appeals are allowed. No costs.
Internet: Yes/No 15.03.2021
dsk
http://www.judis.nic.in
10/12
S.A.Nos.947 & 948 of 2001
To
1. I Additional Subordinate Judge,
Madurai
2.The District Munsif,
Melur.
3.The Section Officer,
Vernacular Record Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
11/12
S.A.Nos.947 & 948 of 2001
N.SATHISH KUMAR J.
dsk
Judgment made in
S.A.Nos.947 & 948 of 2001
15.03.2021
http://www.judis.nic.in
12/12