Madras High Court
Ponnammal(Died) vs Murugesan(Died) on 2 July, 2018
Author: S.Baskaran
Bench: S.Baskaran
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 21.02.2017
Judgment Pronounced on : 02.07.2018
CORAM:
THE HONOURABLE MR. JUSTICE S.BASKARAN
S.A.(MD)No.898 of 2010
1.Ponnammal(Died)
2.Saroja
3.Lalitha
(Appellants 2 and 3 brought as LRs of deceased
sole appellant vide this Court by order dated
07.01.2016 made in MP(MD).2 & 3 of 2014
in SA(MD).No.898 of 2010 by CSKJ) ... Appellants/Defendants
Vs.
1.Murugesan(died)
2.M.Manoharan
3.M.Rajkumar
4.M.Sampath Kumar
5.Ilavarasan
6.M.Rajammal
7.M.Vijayalakshmi
8.M.Devi ... Respondents/Appellants
This second appeal has been filed under Section 100 of CPC,
against the judgment and decree dated 05.04.2010 passed by the
learned Principal Subordinate Judge, Kumbakonam, made in A.S.No.
134 of 2006, reversing the Judgment and decree dated 23.12.2005
passed by the learned District Munsif, Valangaiman at Kumbakonam in
O.S.No.206 of 2004.
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For Appellants : Mr.Veerakathiravan, S.C.,
for Mr.C.Tesannethi
For Respondents : Mr.R.Subramanian for R1, R3
to R7
Mr.M.Surendher for R-2
Mr.S.Sivathilaker for R8
JUDGMENT
This second appeal arises out of the judgment and decree dated 05.04.2010 passed by the learned Principal Subordinate Judge, Kumbakonam, made in A.S.No.134 of 2006, reversing the Judgment and decree dated 23.12.2005 passed by the learned District Munsif, Valangaiman at Kumbakonam in O.S.No.206 of 2004.
2. Brief facts of the plaintiffs' case is as follows:-
The suit property originally belonged to one Ramasamy Chettiar, who is the husband of the defendant Ponnammal. The said Ramasamy Chettiar got the property through partition deed dated 13.05.1968. After the demise of the said Ramasamy Chettiar, his only legal heir, the defendant Ponnammal is entitled to the property. The defendant borrowed a sum of Rs.30,000/- from the wife of the plaintiff and executed a Mortgage Deed dated 07.03.1990. Since the http://www.judis.nic.in 3 defendant Ponnammal failed to discharge the mortgage, she entered into an agreement of sale with the plaintiff Murugesan on 10.01.1994 and then as per the agreement, she executed the Sale Deed on 23.10.1996 in favour of the plaintiff and from that date the same property is in possession and enjoyment of the plaintiff. Subsequently, when the plaintiff applied for mutation of records in his name, he was shocked to learn that few months earlier, the defendant has executed a Cancellation Deed dated 11.08.1997. The above said cancellation deed is absolutely void. Hence, the plaintiff has come froward with the suit for declaration that the cancellation deed dated 11.08.1997 is void and for consequential injunction.
2-A. On the other hand, according to the defendants, on 23.10.1996 she has neither executed any sale deed nor received any sale consideration from the plaintiff. The plaintiff, by playing fraud cheated the defendant and obtained sale deed which is not valid doucment for the purpose of collecting rent from the tenants of the defendant's property and to file the case against the tenants, the defendant Ponnammal signed papers and handed over the same to the plaintiff. The act of the defendant is clear case of breach of trust. It was only for getting loan for construction of marriage hall, the http://www.judis.nic.in 4 defendant has signed the papers and handed over the same to the plaintiff, but by misusing the said papers, the plaintiff has falsely created the suit sale deed. Hence, the defendant has cancelled the sale deed. Thus, they prayed for dismissal of the suit.
3.After contest, the trial Court dismissed the suit. In the meantime, the plaintiff died. The LRs of the plaintiff preferred the appeal in A.S.No.134 of 2006 against the defendant Ponnammal, before the lower appellate Court. After contest, the lower appellate Court allowed the appeal by setting aside the decree and judgment of the trial Court and decreed the suit as prayed for. Aggrieved upon that the defendant Ponnammal preferred the present second appeal. During pendency of the second appeal, the defendant Ponnammal died. Hence, the LRs of Ponnammal/defendant are impleaded as appellants 2 and 3.
4.The following Substantial Questions of law were framed by this Court in this appeal for consideration.
a) Is the first appellate Court is correct and justified in granting the relief in favour of a person who has played a fraud on an illiterate old woman, which warrants the http://www.judis.nic.in 5 entire transaction to the void document?
b) Is the first appellate Court is correct and justified in granting the decree in favour of a plaintiff who played a fraud on an illiterate woman who has repose confidence and trust in him, without adverting to the sound and settled principles as contemplated under law that too on the basis of his own evidence?
c) Is the first appellate Court is correct and justified in granting a decree when the defendant/appellant has given all the details particularly necessary for establishing fraud inconformity with the provisions of Order 6 Rule 4 of Civil Procedure Code?
d) Is the first appellate Court is correct and justified in granting a decree in favour of the plaintiff without framing the points for determination as contemplated under C.P.C?
e) Is the first appellate Court is correct and justified in granting a decree in favour of a person who played a fraud and without adverting to the provisions of Section 101 to 105 of the Evidence Act?
f) Is the first appellate Court is correct and justified in reversing the well http://www.judis.nic.in 6 considered judgment of the trial Court without adverting to the fundamental principles of law is that the plaintiff is to stand or fall on his own case and not on the weakness of the defendant's case?
5. According to the defendant Ponnammal, she has not executed any Registered sale deed on 23.10.1996 as alleged by the plaintiff. Knowing the fact that the plaintiff has created the document, she cancelled the sale deed by another registered instrument dated 11.08.1997.The learned counsel appearing for the appellants/defendants would submit that the first respondent/deceased plaintiff Murugesan took advantage of the trust and faith reposed on him by the deceased first appellant/defendant, who died inte state deceived the defendant by getting her signatures under various pretexts and transferred all her properties in his name by playing fraud on her and created all the documents. Thus Ex.A3 sale deed which was obtained fraudulently by the plaintiff was set aside by the deceased defendant by executing Ex.A.4 cancellation deed. As such, the trial Court, after elaborate trial, oral and documentary evidences, came to a correct conclusion and rightly dismissed the suit, but, the lower appellate Court without considering the arguments put forth by the appellants/defendants herein, decreed the suit without assigning any http://www.judis.nic.in 7 proper reason, which is against law. Hence, it is prayed that the findings of the lower appellate Court has to be set aside by allowing the appeal.
6. Per contra, the learned counsel appearing for the respondents/Plaintiff would submit that the cancellation deed with regard to the sale deed is unknown to law. Hence, the first appellate Court has rightly concluded that the defendant has no right to execute the cancellation deed. Therefore, the lower appellate Court has allowed the appeal as per law. Hence, there is no infirmity in the Judgement and decree passed by the lower appellate Court. Therefore, this appeal has to be dismissed.
7. I have heard the rival contentions and perused the materials available on record.
8.On perusal of the records it is clear that the suit property absolutely belongs to one Ramasamy Chettiar, through Ex.A.1- Partition Deed. After his demise, his only legal heir, the defendant Ponnammal is entitled to the property of said Ramasamy Chettiar. The defendant Ponnammal executed Ex.A.2 mortgage deed with regard to http://www.judis.nic.in 8 the suit property in favour of one Rajammal who is the wife of the plaintiff Murugesan. Since the defendant Ponnammal failed to discharge the mortgage, the wife of the plaintiff obtained decree. It is only by way of discharging the mortgage, the defendant Ponnammal agreed to sell the suit property to the plaintiff on 23.10.1996 for a sum of Rs.4,20,000/-. Out of that amount, a sum of Rs.2,00,000/-was received by the defendant on the date of agreement dated 10.01.1994 and a sum of Rs.1000/- was received on 30.12.1994 and a sum of Rs. 46,650/- was adjusted towards the mortgage amount with interest due to the wife of the plaintiff. A sum of Rs.1,67,350/- was received by the defendant and the same has been deposited in a Bank and the balance of Rs.5,000/- was received by the defendant before the Sub Registrar office. So, the entire sale consideration was received by the defendant Ponnammal and she executed Ex.A.3 sale deed on 23.10.1996 and ever since the Plaintiff is in possession of the Property subsequently. When the plaintiff applied for change of mutation entry, he came to know that on 11.08.1997, the defendant Ponnammal executed Ex.A.4- cancellation deed, thereby cancelling Ex.A.3 sale deed executed in favour of the Plaintiff. Since the same is not permissble, the plaintiff came forward with this suit.
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9.On the other hand, opposing the suit claim, the defendant contends that on 23.10.1996 she has neither executed any sale deed nor received any sale consideration from the plaintiff. The plaintiff, by playing fraud cheated the defendant Ponnammal and obtained Ex.A.3 sale deed for the purpose of collecting rent from the tenants of the defendant's property and to file the case against the tenants. Believing the same, the defendant Ponnammal signed in papers and handed over the same to the plaintiff. The act of the Plaiintiff is clear case of breach of trust. It was only for the purpose of getting loan for construction of marriage hall as promised by the Plaintiff; the defendant has signed the papers and handed over the same to the plaintiff, but by misusing the said papers, the plaintiff has falsely created the suit sale deed-Ex.A.3. Hence, the defendant has cancelled the said sale deed by executing Ex.A.4/Ex.B.23 cancellation deed. This is the specific contention on the side of the defendant. Thus the defendants contend that the Plaintiff has no title or interest on the property and the suit is liable to be dismissed.
10.Now the point for consideration is as to whether the defendant is entitled to cancel the Registered document Ex.A.3-Sale deed by executing another registered document Ex.A.4 Cancellation http://www.judis.nic.in 10 Deed and whether it will bind upon the plaintiff, has to be analysed.
11. The Appellants/Defendants vehemently contend that as sale deed was obtained fraudulently, she is entitled to cancel the same. On the side of the appellants/defendants, the learned counsel relied upon the ruling reported in 1)1999 (II) CTC 481 in HAMEED GHOSH AND ANOTHER Vs. ABDUL HAYOOM AND ANOTHER; 2) 1998 – 3 – LAW WEEKLY, 199 in CHELLATHURAI AND 5 OTHERS Vs. PERUMAL NADAR; 3) 2004 (3) LAW WEEKLY 185 in M.GOPINATHAN AND OTHERS Vs. THE SUB REGISTRAR, GUDALUR, NILGIRIS DISTRICT AND OTHERS and 4) 2010 (1) LAW WEEKLY 680 1)A.C.BAKTHAN 2) VENKATESAN Vs. ROSI AMMAL. Out of those four judgments, except 1999 (2) CTC 481, other three citations are not applicable to the facts of this case. In the said decision, i.e. in 1999 (II) CTC 481 in HAMEED GHOSH AND ANOTHER Vs. ABDUL HAYOOM AND ANOTHER, it is held as follows:-
“Evidence Act, 1872, Sections 101 to 103 – Burden of proof – Execution of sale deed by ladies sought to be assailed by executants on ground that they believed it to be mortgage – Onus that executants had knowledge of documents and contents and executed with full http://www.judis.nic.in 11 knowledge of same lies on one who receives benefit under such document – Sale deed in instant case attested by two witnesses who ever according to executants had been helping them – Defence witness clearly establishing that attesting witnesses read over documents and explained contents to executants before executing same – Defendant had discharged his duty and plaintiff failed to examine attesting witness – Trial Court had cast burden of proof correctly on defendant and defendant had discharged his burden of proof.”
12. Thus the appellants/defendants contend that the burden is on the beneficiary to prove the execution of document by the executants with knowledge and clear mind. In the above said Ruling also it is held that the beneficiary of the document must establish that the executant had knowledge of document and its contents and he had executed the same with full knowledge. Thus, relying upon the citation, the learned counsel appearing for the appellants/defendants would submit that the plaintiff who is the beneficiary has miserably failed to prove Ex.A.4 cancellation deed as stated in the above said citation. In such circumstances, the contention of the defendants is to be accepted. But the lower appellate Court, without considering these http://www.judis.nic.in 12 aspects, solely relied upon Ex.A.4 cancellation deed and entertained the appeal and the same is not correct. It is contended that the plaintiff came forward with the relief of declaration, and so, he has to establish that the sale deed obtained by him was true and genuine. However, the plaintiff has not examined the attestor of the sale deed. Without proving that Ex.A.3 was executed in fair manner and knowingly by the defendant the execution of the said document cannot be upheld.
13. Per contra, contending that no sale deed was cancelled by another deed, On the side of the respondents, the learned counsel relied upon the ruling reported in 2011 (2) CTC 1 in LATIF ESTATE LINE INDIA LTD., REP. BY ITS MANAGING DIRECTOR , MR.HABIB ABDUL LATIF, NO.14, TEMPLE ROAD, SECRETARIATE COLONY, KILPAUK, CHENNAI-10 Vs. HADEEJA AMMAL AND OTHERS, wherein it is held as follows:-
“Transfer of Property Act, 1882 (4 of 1882), Section 54 – Sale Whether Sale Deed once executed can be cancelled by Vendor either with or without consent – Sale means transfer of all rights, title and interest in properties which are possessed by transferor to another person namely transferee or purchaser - Transferor cannot retain http://www.judis.nic.in 13 any part of his interest in property so transferred sale would be complete once sale deed is executed and registered- Transfer of Property Act does not contain any provision for cancellation or annulling of Sale Deed – Registration Act also does not contain any provision for same – Once title to property is transferred by sale of property it cannot be divested by execution of Deed of Cancellation even with consent of parties – Proper Course would be for purchaser to re-convey property to seller.” In another ruling relied on by the respondent reported in 2010 (15) SCC 207 in THOTA GAMGA LAXMI AND ANOTHER Vs. GOVERNMENT OF ANDHRA PRADESH AND OTHERS, it is held as follows:-
“Held, if vendor wants to cancel sale deed subsequently then he has to file a civil suit for cancellation or else he can ask vendee to sell back that property – Vendor cannot execute a cancellation deed unilaterally and such unilateral cancellation shall not be registered.” http://www.judis.nic.in 14
14. The plaintiff herein has come forward with the suit challenging only Ex.A4 Cancellation Deed executed by defendant contending that no sale deed can be cancelled by executant on his own. On the side of the plaintiff, the plaintiff was examined as P.W.1 and one of the attestor of Ex.A3, one Kaliyaperumal was examined as P.W.2. Examination of one of the attestors is sufficient to prove the sale deed. The evidence of P.Ws.1 and 2 with regard to Ex.A3 was not shattered by the defendant. The plaintiff has not come forward with the suit for declaration with regard to Ex.A3. He has only come forward with the suit for declaration with regard to Ex.A4-cancellation deed. The defendant who deposed as D.W.1, during the course of examination, she has stated that “thjp vd;dplk; ve;j njjpapy; gth; gj;jpuk;
nfl;lhh; vd;W bjhpahJ/ vj;jid Kiw gth;
nfl;lhh; vd;W brhd;dhy; xU Kiw nfl;lhh;/ xU
fpuag; gj;jpuk; 95?Yk; kw;bwhU fpua gj;jpuk; 96?Yk;
vGjp bfhLj;Js;nsd; vd;why; ,Uf;Fk;/ thjp
vd;id vg;nghJ vkhw;wptpl;lhh; vd;W vdf;f
bjhpahJ/ Kjy; gj;jpuk; vGjpa gpd;dh;
Vkhw;wptpl;lhh; vd;gij ,uz;lhtJ gj;jpuk;
vGJtjw;F Kd;ng bjhpe;J bfhz;nld;/”
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In Ex.A9, the defendant Ponnammal has stated that the plaintiff sold the above lands on 01.12.1995 to one G.Murugesan. O.S.No.592 of 1996 was filed by the defendant Ponnammal against the second defendant Masilamani for arrears of rent. In the above said suit, the defendant Ponnammal has admitted about the sale made by her to the plaintiff herein Murugesan. above said admission is the substantial evidence and it will go to prove that the present suit sale deed Ex.A3 was executed by the said Ponnammal with full knowledge of the same.
15.As per the Apex Court verdict, which is reported in AIR 1977 Supreme Court 1724 in THIRU.JHON Vs. THE RETURNING OFFICER, the admission is substantial evidence and the same can be rebutted by the maker with proper evidence. However, till then the admission is valid. In this case, the defendant Ponnammal admitted that she has sold the property to one Murugesan, who is the plaintiff in the present suit, but, she took the defence to the effect that Ex.A3 sale deed was obtained by fraud. If that be so, she has to establish that the sale deed was obtained by fraud. For establishing the plea of fraud and to cancel Ex.A3 sale deed, she ought to have approached the appropriate Court, but, she has not done so. However, she has unilaterally cancelled the sale deed, by way of Ex.A4-cancellation deed, http://www.judis.nic.in 16 which is unknown to law. Admittedly, so far the defendant has not filed any suit against the plaintiff regarding cancellation of the sale deed. As such, it is clear that the stand taken by the defendant is unsustainable, regarding execution of Ex.A3-sale deed is concerned, the plaintiff has proved his contention. Regarding Ex.A4-cancellation deed is concerned, according to the above said ruling relied upon by the plaintiff such cancellation is unknown to law and the same is not permissible. Hence the only way open to the defendant is to file civil suit for cancellation of the sale deed or to ask the vendee to sell back the property to herself. The Tamil Nadu Registration Act also does not contain any provision for such cancellation. Apparently, once title to the property is transferred by sale of the property, it cannot be divested merely by execution of Deed of Cancellation, even with consent of parties. Thus, the findings of the lower Appellate Court, with regard to Ex.B4-Cancellation Deed, which is based on the above said Ruling is appropriate, proper and does not suffer from any infirmity. For the above said reasons the substantial questions of law raised by the appellant/defendant is answered against them. Therefore, this Court comes to the conclusion that there is no merit in this appeal and the same is liable to be dismissed. http://www.judis.nic.in 17
16. In the result, the second appeal is dismissed. No costs. The Judgment and Decree dated 05.04.2010 made in A.S.No.134 of 2006 passed by the learned Principal Subordinate Judge, Kumbakonam, is hereby confirmed.
02.07.2018 rrg To
1.The Principal Subordinate Judge, Kimbakonam.
2.The District Munsif Court, Valangaiman.
http://www.judis.nic.in 18 S.BASKARAN,J., rrg/vs Judgment in S.A.(MD)No.898 of 2010 02.07.2018 http://www.judis.nic.in