Madras High Court
Chithammal (Died) vs Karthikeyan on 27 February, 2020
Author: R.Subramanian
Bench: R.Subramanian
S.A.(MD) No.132 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 27.02.2020
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD) No.132 of 2016
and
C.M.P.(MD)No.3861 of 2019
1.Chithammal (died)
2.Subbulakshmi ... Appellants/appellants /defendants
(1st appellant died, A3 already on record is recorded as legal heirs of the
deceased 1st appellant memo recorded vide USR No.2341 dated 15.04.2016
vide Court order dated 09.06.2016 made in S.A.(MD)No.132 of 2016)
vs.
1.Karthikeyan
2.Puruppanaban
3.Sankaranarayan
4.Bhagavathy Kumar ...Respondents/respondents
plaintiffs
5.Saravanammal .. 5 respondents
th
(A2, namely Saravanammal transposed by the 5th respondent,
vide Court order dated 20.09.2019 made in C.M.P.(MD)No.132 of 2016)
PRAYER: This Second Appeal is filed under Section 100 of Civil
Procedure Code, against the decree and judgment in A.S.No.97 of
2012 on the file of the learned Principal Subordinate Judge,
Tirunelveli, dated 21.01.2013 confirming the decree and judgment in
O.S.No.490 of 2006 on the file of the learned II Additional District
Munsif, Thirunelveli, dated 23.04.2012.
For Appellant : Mr.Ananth C.Rajesh
For R1`to R4 : Mr.A.Chidambaram
for Mr.R.Manimaran
For R5 : Mr.T.Selvan
http://www.judis.nic.in1/12
S.A.(MD) No.132 of 2015
JUDGMENT
The defendants in O.S.No.490 of 2006, who had suffered decree for declaration of title and injunction at the hands of the Courts below have come up with this second appeal.
2. The suit in O.S.No.490 of 2006 was filed by the plaintiffs contending that the suit properties originally belonged to the first defendant having been allotted to her at the partition that took place on 27.12.1984 and by virtue of purchase under sale deed No.3244 of 1969. According to the plaintiffs the first defendant, who is their mother has settled the said properties on them under the registered instrument of settlement, dated 18.06.1996. In and by the settlement deed, the mother had reserved herself the right of residence in the property dudring her life time, while settling the same in favour of the plaintiffs. It is also claimed that the plaintiffs were employed at various places and were residing out side Tirunelveli.
3. Using the absence of the plaintiffs, the defendants 2 and 3, who are the sisters of the plaintiffs and daughters of the first defendant, prevailed upon the first defendant to cancel the settlement deed dated 18.02.1996 on 30.03.2006. On the same date, they also extracted a settlement deed from the first defendant settling the properties on themselves. Contending that the cancellation as well as http://www.judis.nic.in2/12 S.A.(MD) No.132 of 2015 the settlement deed dated 30.03.2006 are not valid, the plaintiffs laid the above suit for the reliefs as aforesaid.
4. The suit was resisted by the defendants denying the claim that the suit first item was allotted to the first defendant under the partition. They also claimed the said partition was not acted upon. The settlement deed dated 18.06.1996 was attacked on the ground that it is invalid because it was registered at Parasala in Kerala by including a property situated within the Sub Registrar District of Parasala, which was not owned by the first defendant. The documents was termed as fraud on registration. It is also claimed that the first defendant has validly cancelled the instrument of settlement. As such she is entitled to execute the settlement on 30.03.2006.
5. At trial, the first plaintiff was examined as P.W.1 and one Soman was examined as P.W.2. Exs.A1 to A12 were marked. Though the first defendant was examined as D.W.1, her evidence were struck off because she was not available for cross examination. The second and third defendants were examined as D.Ws.2 and 3 respectively. Exs.B1 and B2 were marked on the side of the defendants.
6. The Courts below upon consideration of the evidence on record concluded that the partition dated 29.12.1984 was acted upon http://www.judis.nic.in3/12 S.A.(MD) No.132 of 2015 and the settlement deed dated 18.06.1996 is a valid document and it cannot be concluded that it is a result of fraud on registration. Consequently, the Courts below found that the cancellation deed dated 30.03.2006 is invalid. Once the cancellation deed dated 30.03.2006 was held to be invalid, it was found that the first defendant had no right to execute the settlement deed marked as Ex.A5 on the same date. The Courts below also took into account the mutation of revenue records in the name of the plaintiffs under Exs.A3 and A4. Having come to the above conclusion, the Courts below decreed the suit as prayed for. Aggrieved, the defendants have come up with this second appeal.
7. Soon after filing of this appeal, the mother, namely the first appellant died and one of the sisters namely the second appellant was transposed as 5th respondent in the appeal. Therefore, it is only the third appellant, who is now prosecuting the appeal. It is seen from the records that the appeal was not admitted.
8. I have heard Mr.Anand C.Rajesh, learned counsel for the appellants, Mr.A.Chidamabram, learned counsel for Mr.R.Manimaran, for the respondents 1 to 4 and Mr.T.Selvan, learned counsel for the fifth respondent.
http://www.judis.nic.in4/12 S.A.(MD) No.132 of 2015
9. The learned counsel for the appellants would contend that the Courts below were not right in upholding the validity of the settlement deed dated 18.06.1996 as the same amounted to fraud on registration, since it has been registered at Parasala, outside the State of Tamil Nadu. It is his further contention that though the settlement deed dated 18.06.1996 marked as Ex.A2 settles only an extent of 65 cents of lands out of 77 cents, the plaintiffs sought for declaration of title for the entire extent of 77 cents. He would also draw my attention to the fact that the property measuring about one cent has been purchased on the same date, namely 18.06.1996 at Parasala and the said property has been shown as one of the property that has been settled under the settlement deed dated 18.06.1996. Therefore, the registration of the document at Parasala would amount fraud on registration as it is in violation of Section 28 of the Registration Act. Therefore, the very settlement deed dated 18.06.1996 is invalid. The learned counsel would also submit that once, it is found that the settlement deed dated 18.06.1996 is invalid, the first defendant being the owner of the property was well within her power to settle the property on defendants 2 and 3 by settlement deed dated 30.03.2006.
10. As regards the second contention of the learned counsel for the appellants, ofcourse the settlement deed, Ex.A2 settles only an http://www.judis.nic.in5/12 S.A.(MD) No.132 of 2015 extent of 65 cents out of 77 cents in favour of the plaintiffs 1 to 4. The extent of property in the plaint schedule is shown as 77 cents. But unfortunately, the said plea has not been raised either before the trial Court or before the lower appellate Court. A reading of the schedule in the settlement deed and the plaint would show that there is a possibility that the description in the plaint is mistake. The schedule in the settlement deed reads that an extent of 65 cents after excluding an extent of 12 cents sold by the first defendant in favour of one Bhagavathikumar situated within four boundaries, is settled on the plaintiffs.
11. The discretion starts saying that in Survey No.938 /1A out of 7 acres 14 cents on the east of the southern 3 acre 77 cents excluding 12 cents, which has been sold by me to Baghavathikumar the remaining 65 cents. There is a possibility that the description was wrongly read and the plaintiffs sought relief for 77 cents. In any event the said plea was not even raised before the Courts below. I do not think that sitting in second appeal, I can go into the question. All that can be done is to restrict the decree to the 65 cents as per the settlement deed.
12. On the second contention regarding fraud of registration, the settlement deed, dated 18.06.1996 was executed and registered at http://www.judis.nic.in6/12 S.A.(MD) No.132 of 2015 Parasala in Kerala. The said execution was prior to the introduction of Section 28 (b) by the Tamil Nadu Registration Amendment Act, 1997 with effect from 29.03.1997. Therefore, any document registered outside the State after 29.03.1997 is automatically invalid. But if such document is registered prior to the said date, unless it is shown that the executant of the document did not have title to the property that is shown to be situated within the Sub Registration District of Parasala or that the property itself was fictitious, the document cannot be said to be invalid, since there was no legal or statutory prohibition against such Registration. The validity of such documents was the subject matter of the several decisions of this Court as well as the Privy Council. Recently, I had an occasion to consider similar question in D.Vijayalakshmi Vs. V.Hariselvan and others [2020-1-L.W. 585]. After referring almost all the decisions including the decisions of the Privy Council on the question of fraud on registration, I had concluded as follows:-
“...
57. The position that emerges upon a survey of the law laid down in the precedents, referred to above, and the amendment of the statute namely the Registration Act is as follows:
7. The Registration of the document be it conveyance or a mortgage in the office of the Registering Authority within whose jurisdiction a portion of the property is situate is permissible under Law prior to amendment of Section 28 of the Registration Act, by Act 19 of 1997 introduced by the State http://www.judis.nic.in7/12 S.A.(MD) No.132 of 2015 of Tamil Nadu.
8. The extent of property so included however small it is would give the jurisdiction to the Registering Authority to register the document. The other provisions of the Registration Act, viz. Sections 64 and 65 take care of the other requirements, of sending a information to the offices of the Sub Registrar, within whose jurisdiction the remaining property covered by the document is situate.
9. Unless, it is shown that the property itself was not in existence or the vendor or the mortgagor, as the case may be, did not have title to the properties so included in the Sale Deed, it cannot be said that such registration would amount to a fraudulent registration, thereby, making the entire document invalid.
10. The intention of the parties should also be considered while deciding the question of invalidity for fraud on registration. It was open to the parties to enter upon a bona fide transaction with a view to reduce the burden of stamp duty and such a transaction cannot be termed as fraudulent.
11. The very fact that Section 28 was amended in order to invalidate sale Deeds registered outside the State, would show that such transactions which happened prior to the amendment would be valid.
12. The validity of the documents registered outside the State would depend on the facts and circumstances of each case and it cannot be applied as a universal rule that all documents registered outside the State would be invalid or that all documents registered outside the State would amount to fraud on registration.
......” http://www.judis.nic.in8/12 S.A.(MD) No.132 of 2015
13. If we are to analyze the facts of the case on hand on the basis of the law settled above, it is crystal clear that the defendants have singularly failed to establish the essential requirements. It is seen from the settlement deed itself that the property measuring about one cent or a little less than one cent was purchased by the settler on the same date and that the property was the subject matter of the settlement also. This action would amount to tax planning which as opposed to tax evasion has got legal sanction. Therefore, in order to invalidate the document executed prior to the introduction of Section 28 (b) of the Registration Act in the year 1997 as fraud on Registration, it is incumbent upon the person, who challenges such registration to establish the twin requirements that the settler did not have title to the property, which was included or that the property was fictitious. Unless that is done the document cannot be declared as invalid, merely because its execution and registration at Parasala or any other place outside the State of Tamil Nadu.
14. As regards, cancellation deed dated 30.03.2006, the same cannot be said to be valid. This Court has held that such unilateral cancellation of registered instrument is not valid in Latif Estae Line India Ltd., rep by its Managing Director vs. Hadeeja Amman and others [(2011) 2 MLJ 569 (FB)] and the Hon'ble Supreme Court has also in Thota Ganga Laxmi and another vs. Government of http://www.judis.nic.in9/12 S.A.(MD) No.132 of 2015 Andhra Pradesh and others [(2010) 15 SCC 201] held that a registered non testamentary instrument, which results immediate transfer of title cannot be unilaterally cancelled by the executant.
15. In view of the law laid down by the Hon'ble Full Bench of this Court as well as the Hon'ble Supreme Court, the cancellation of the settlement by the first defendant under the registered instrument dated 30.03.2006 is essentially invalid. For the foregoing reasons, I do not find any perversity or material irregularity in the conclusions of the Courts below, when they held that the settlement deed dated 18.06.1996 is perfectly valid and the cancellation deed dated 30.03.2006 is invalid and the consequential settlement deed dated 30.03.2006 executed by the first defendant in favour of the defendants 2 and 3 would not confer any title on them.
16. I do not find any question of law much less a substantial question of law in order to enable me to entertain this appeal. However, taking into account the fact that only 65 cents were settled on the plaintiffs in the first item, the Courts below were not right in granting decree for the entire extent of 77 cents as claimed in the plaint. Therefore, except to modify the decree of the Courts below by declaring the title of the plaintiffs to an extent of 65 cents in the suit first item and the suit second item, I do not think that the judgement http://www.judis.nic.in10/12 S.A.(MD) No.132 of 2015 and decree of the Courts below could be interfered with. This second appeal is therefore partly allowed and the judgment and decree of the Courts below is modified granting decree for declaration of title in respect of 65 cents in the suit first item and the suit second item of the property in favour of the plaintiffs. The suit in O.S.No.290 of 2006 will stand decreed as above. No costs. Consequently, connected miscellaneous petition is closed.
27.02.2020
Index : Yes/No
Internet : Yes/No
ta
To
1.The Principal Subordinate Judge, Tirunelveli.
2.The II Additional District Munsif, Thirunelveli,
3.The Section Officer, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
http://www.judis.nic.in11/12 S.A.(MD) No.132 of 2015 R.SUBRAMANIAN,J ta S.A.(MD)No.132 of 2016 27.02.2020 http://www.judis.nic.in12/12