Madras High Court
Deivasigamani vs Asha Nehemiah on 11 March, 2015
Author: K.B.K.Vasuki
Bench: K.B.K.Vasuki
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 11.03.2015 Coram : THE HONOURABLE Ms. JUSTICE K.B.K.VASUKI S.A.No.1334 of 1999 Deivasigamani .. Appellant vs. 1.Asha Nehemiah 2.K.R.Lamech ... Respondents Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 5.8.1998 in AS.No.31 of 1998 on the file of the Principal District Judge, Chengalpattu reversing the judgment and decree dated 14.12.1995 in O.S.No.392 of 1989 on the file of the Sub Court, Poonamallee. For Appellant : Mr.V.Manokar. For Respondents : Mr.A.Krishna Rao. JUDGMENT
The plaintiff in O.S.No.392 of 1989, who is the respondent in A.S.No.31 of 1998, is the appellant herein.
2.The suit was filed by the appellant against the respondents herein for specific performance of the sale agreement dated 10.8.1988 and for recovery of possession of the suit property.
3.It is the case of the plaintiff that the first defendant is the owner of agricultural land measuring an extent of 16= cents situated at No.101, Valasarapakkam Village, Saidapet Taluk, Chingleput District comprised in New S.No.151/1G within the boundaries as mentioned in the suit schedule and the second defendant is her power agent and the plaintiff on one hand and the second defendant as power agent of the first defendant/owner entered into an sale agreement on 10.8.1988 for purchase of the suit property for Rs.18,000/- per cent and the same was reduced into writing and the plaintiff also paid Rs.30,000/- as advance and further advance of Rs.45,000/- and Rs.15,000/- on 2.3.1989 and 2.4.1989 respectively. It was the further case of the plaintiff that even after receiving Rs.90,000/- from him, the second defendant evaded to produce the original title deeds and power of attorney pertaining to the suit property and order copy of the writ petition filed by the first defendant against the acquisition proceedings, Encumbrance Certificate and others documents for inspection, inpsite of the repeated demands. Panchayat was also held in this regard, wherein, the second defendant demanded extra payment of Rs.1 lakh and refused to complete the sale transaction, which compelled the plaintiff to send a lawyer's notice, calling upon the defendants to produce all necessary documents and to execute sale deed and to hand over the possession of the property and the same was replied by the first defendant by denying his liability to perform his part of the contract. It is also the case of the plaintiff that as he has been always ready and willing to perform of his part of the contract, the same is delayed by the defendants for the reasons attributed to them. The plaintiff, by contending so, filed the suit for the relief as stated supra.
4.The suit relief was seriously opposed by the defendants 1 and 2 on the following grounds; (i)time is the essence of the contract. The plaintiff failed to pay the entire balance sale consideration and was never ready and willing to complete his part of the contract, which compelled the defendants to cancel the sale agreement through letters dated 22.12.1988 and 24.1.1989; (ii)there has been a variation of the terms of the agreement, subsequent to such cancellation; (iii)the plaintiff failed to complete the transaction even after the time for performance was extended by the defendants at the instance of the plaintiff; (iv)the case of the plaintiff that further sum of Rs.15,000/- was paid on 02.04.1989 and the possession was also handed over to the plaintiff, is totally false; (v)there was no condition in the suit agreement between the parties for production of the original documents, as the plaintiff entered into an agreement only after satisfying with the title including the land acquisition proceedings; and (vi)The defendants neither demanded extra payment of Rs.1 lakh nor there was any panchayat as alleged by the plaintiff.
5.The parties in support of their respective contentions, adduced oral and documentary evidence before the trial court. The trial court on the basis of such evidence, arrived at conclusion that the time is not the essence of the contract and the payment of Rs.15,000/- is not proved and the plaintiff has been ready and willing to perform his part of the contract and it is the defendants, who failed to produce the relevant documents for perusal of the plaintiff before completing the sale transaction and the plaintiff is hence entitled to the relief of specific performance of the suit agreement. Aggrieved against the same, the defendants 1 and 2 preferred AS.No.31/1998 before the lower appellate court. The lower appellate court, on the basis of the same set of evidence, has found that having regard to the circumstances under which the parties come forward to sell the property time is not agreed to be the essence of the contract and the time fixed in the agreement was also extended, but the plaintiff failed to take steps to perform his part of the agreement by offering the balance sale consideration and by calling upon the defendants to come and execute the sale deed either within the time originally fixed or within the time extended and the relevant documents mentioned in Ex.A3 notice were not produced and the plaintiff for the first item in his Ex.A3 notice come forward with false theory that further sum of Rs.15,000/- was paid and the plaintiff has thus not come to court with clean hands and the cancellation of the suit agreement by the defendant is but proper. The lower appellate court, on the basis of such findings reversed the findings of the trial court and allowed the appeal, thereby setting aside the judgment and decree of the trial court. Hence, this second appeal by the plaintiff before this court.
6.The Second Appeal is admitted on the following substantial questions of law :
(a) Whether in the facts and circumstances of the case it can be said that time was the essence of the contract?
(b) In an Agreement for sale/purchase of immovable property, when there is a covenant by which the purchaser covenant to pay the amount by 31.10.1988, but does not do so, and subsequently, the purchaser accepts on 2.3.1989 some more advance and endorses Registration to be done within the month from today, whether it can be construed to mean, 'time was the essence of contract'?
(c) In a suit for specific performance, if it is found that the defendants' are not ready and willing to perform their part of the contract, should not the suit be decreed?
(d) Is it not necessary for the defendants / sellers to produce all original documents prior to the sale deed to the intending purchaser?
(f) If the plaintiff/purchaser does not pay the money to the defendant/seller on account his non-production of original deeds, can it be construed that the plaintiff was unwilling to perform his part of the contract?
(g) When a time was fixed in an Agreement for purchase of immovable property, and subsequently, months after the deadline, additional amount is accepted and extension is given, can it be said that time is the essence of contract?
(h) When it is held that time is the essence of contract in view of seller's urgent need of money, and the said need has been fulfilled by sale of some other property can it be said that time is the essence of the contract, despite changed circumstances?
(i) Can it be held that value and location of the property and its rising price be a criteria in determining whether time is the essence of a contract for the sale / purchase of an immovable property.
7.Heard the rival submissions made on both sides and perused the records.
8.The facts not disputed are that the first defendant/daughter is the owner of the property and the second defendant/father is her power of attorney and the plaintiff having agreed to purchase the property, entered into Ex.A1 sale agreement dated 10.8.1988 with the second defendant and the sale price agreed was Rs.18,000/- per cent of 435.6 sq.ft. including the price of fruit bearing trees on the land and the sum of Rs.30,000/- was paid as advance on 10.8.1988 and the parties agreed to complete the sale transaction on or before 31.10.1988 failing which the owner would be free to retain the property for herself or sell it to any third party, if the plaintiff fail to purchase the property on or before 31.10.1988 and the plaintiff did not make any further payment and did not get execution and registration of the sale deed on or before 31.10.1988. The plaintiff made further payment of Rs.45,000/- on 2.3.1989, on which date, the second defendant acknowledged the receipt of further sum of Rs.45,000/- and the parties agreed to pay the balance sum of Rs.2,25,000/- and agreed to have the registration within one month from 2.3.1989 vide Ex.A2 endorsement. Even thereafter, the sale transaction was not completed till August 1989 and the same led to exchange of notice between the parties on 10.8.1989. During the same point of time, the first defendant/owner under Exs.B3 and B4 sold the property to third party and thereafter, the plaintiff has come forward with the present suit. Though the plaintiff has throughout taken a stand that he paid further sum of Rs.15,000/- on 2.4.1989, such plea was disbelieved by both the courts below.
9.Regarding the plea that the time is the essence of the contract, the time originally fixed in Ex.A1 agreement is 31.10.1988 and the recitals contained in the agreement would read that the parties agreed to complete the transaction on or before 31.10.1988. The evidence of PW1 in the witness box would also reveal that the first defendant has come forward to sell the property only for urgent family needs and that is why, short time was fixed in the sale agreement. There is absolutely no evidence adduced on the side of the plaintiff to show that he has on or before 31.10.1988 approached the defendants with the balance sale consideration for getting the sale deed executed. The plaintiff, after paying Rs.30,000/- as advance on 10.8.1988, made the next payment on 2.3.1989 vide Ex.A2. Though under Ex.A1 specified the time limit for completion of the sale agreement on or before 31.10.1988, the defendants vide Ex.A2 dated 02.03.1989 agreed to extend the time by one month from 02.03.1989. Here also, the plaintiff has not adduced any evidence to show that he was ready and willing to pay the balance sale consideration within such extended time and he approached the defendants with the balance sale consideration to get the sale deed executed. At this juncture only, the plaintiff introduced a new plea as if further sum of Rs.15,000/- was paid on 02.04.1989 and on his failure to prove the same, the same is rightly disbelieved by the lower appellate court. As rightly observed by the lower appellate court, had the plaintiff actually made further payment of Rs.15,000/-, he would have obtained endorsement to that effect in Ex.A1 sale agreement. In the absence of one such endorsement and on the failure of the plaintiff to offer any explanation for not getting one such endorsement, the plea regarding further payment of Rs.15,000/- on 2.4.1989 is rightly found to be unacceptable. The lower appellate court, considering the conduct of the parties, further observed that such plea is taken only to explain the failure on the part of the plaintiff to complete the sale transaction by paying the balance sale consideration.
10.The plaintiff has also in this context, raised another plea as if the defendants agreed to produce relevant documents, such as, title deeds, power of attorney, order copy of the writ petition filed by the first defendant against the acquisition proceedings, encumbrance certificate and other documents, within the agreement period to verify the valid marketable title of the defendants and the defendants, inspite of repeated demands, evaded to do so and that is why, the plaintiff who had been always ready and willing to complete the sale transaction, was unable to do so. The trial court believed such theory by relying on Section 55(1)(b) of the Transfer of Property Act, which says that the seller is bound to produce to the buyer on his request for examination of all documents of title relating to the property which are in the seller's possession or power and held that the failure on the part of the defendants to produce the title deeds and other documents, resulted in delaying the payment of balance sale consideration by the plaintiff. Whereas, the lower appellate court reversed the findings of the trial court in this regard. The lower appellate court arrived at a conclusion that the plea regarding non-production of title deeds etc, was introduced at later point of time only to circumvent the delay on the part of the plaintiff to pay the balance sale consideration. This court is inclined to accept the findings so rendered by the lower appellate court for the following reasons.
11.The recitals contained in para 2 at page 5 of Ex.A1 sale agreement state that the earlier agreement dated 19.5.1987 ceased to be valid as per the terms of the agreement, as the party of second part i.e., the plaintiff canceled the agreement and the party of the second part received from the Party of the first part i.e., the defendants sum of Rs.15,000/- paid by him to the party of the first part as advance. The second sale agreement Ex.A1 dated 10.08.1988 refers to the source of title vide settlement deed dated 17.04.1963 and it also refers to the acquisition proceedings initiated by the Government of Tamil Nadu and the writ petition filed by the defendants before the High court, Madras and the plaintiff as the second party of the agreement undertakes to bear to himself the risk and consequences in case the land in question is acquired by the Government and agreed that the defendants shall not be responsible for any loss or damage that may be caused to the plaintiff or to his nominee/nominees, after the sale on this account. If that is so, the plaintiff would have certainly verified the title of the first defendant in respect of the suit property on the basis of the agreement even at the time of entering into the first sale agreement. As Ex.A1 happened to be the second sale agreement and as Ex.A1 sale agreement referred to the settlement deed and the land acquisition proceedings, inference to be drawn is that the plaintiff was at the time of entering into the first sale agreement in 1987 and Ex.A1 second sale agreement in 1988, ascertained the valid title of the first defendant in respect of the property in question. The same, if viewed in the light of the absence of any covenant in Ex.A1 agreement for production of the documents as above referred to for examination by the plaintiff and the failure on the part of the plaintiff to raise this plea till Ex.A3 notice was issued on 10.08.1989, would only improbablise the plaintiff's case and would support the defence raised on the side of the defendants that there is no agreement between the parties for production of the documents before payment of balance sale consideration. In that event, the plaintiff here again come to court with unclean hands by raising a plea which is also not made out. As it is well settled law that the relief of specific performance being discretionary in nature, the same is not made available to those who has come to court with unclean hands. On this score alone, the plaintiff is dis-entitled to get the suit relief.
12.Next aspect to be considered herein is that of the readiness and willingness of the plaintiff to pay the balance sale consideration. As already referred to, there is absolutely no evidence to show that plaintiff has taken any steps to pay the balance sale consideration either before 31.10.1988 or before 2.4.1989 i.e. within one month from the date of Ex.A2 endorsement or till 10.8.1989, the date on which Ex.A3 notice was issued. The plaintiff has also not made out that he approached the defendants for production of the documents either on or before 31.10.1988 or 2.4.1989 or 10.8.1989. Ex.A3 notice does not contain the particulars regarding the period during which he approached the defendants for production of documents. There is absolutely no whisper in Ex.A3 notice which is the earliest document about the so called panchayat held and undertaking given by the defendants to produce the relevant documents for inspection of the plaintiff in the presence of third party/panchayathar. The same was introduced only in the plaint and in the witness box. That means, the plaintiff has come forward with the improved version at every stage. Further, the plaintiff having come to court with a plea of further payment of Rs.15,000/- the same having been negatived by both the courts below, the plaintiff ought to have either in the plaint or in the witness box, come forward with an alternative plea or undertaking that he has been ready and willing to pay the entire balance sale consideration without reference to Rs.15,000/-. Whereas, the plaintiff has not raised one such ground in the memorandum of grounds of appeal or any substantial question of law in this regard. That means, the plaintiff neither pleaded nor proved his readiness and willingness for payment of balance sale consideration. Even otherwise, the plaintiff has not proved his source providing for making payment of further sale consideration. Though he is not required to produce the amount, to prove his readiness and willingness, the plaintiff ought to have at least produced sufficient materials to prove his source of funds, which he failed to do so.
13.Thus, for the discussions held above, this court is of the view that though the time fixed under Ex.A1 is extended, having regard to the circumstances under which and the purpose for which the property was offered for sale, the time is treated as essence of the contract and the plaintiff having raised false plea regarding payment of further sum of Rs.15,000/- and regarding the non-production of the relevant documents before payment of entire sale consideration by the defendants, has not come to court with clean hands and is hence dis-entitled to get the discretionary relief. Further, the plaintiff failed to plead and prove his readiness and willingness to pay the balance sale consideration and also failed to prove the source of funds for the payment of balance sale consideration, as such, the conduct of the plaintiff as referred to above, would dis-entitle him to get the discretionary relief of specific performance and the lower appellate court has rightly held so and the well reasoned judgment of the lower appellate court hence warrants no interference by this Court and the substantial questions of law are accordingly answered against the plaintiff.
14.In the result, the Second Appeal is dismissed. No costs.
11.03.2015 Internet:Yes/No Index:Yes/No rk To
1.The Principal District Judge, Chengalpattu.
2.The Sub Court, Poonamallee.
K.B.K.VASUKI, J.
rk S.A.No.1334 of 1999 11.03.2015 SA.1539/1998 Addition question of law.
The second defendant in the suit and the first appellant in the lower court appeal is the appellant herein. The suit is filed by the first respondent herein for the relief of declaration and injunction in respect of 40 cents in s.no.29/1F in Vasinayana Village, Krishnagiri Taluk with pathway right to reach the suit land in northern side. As per the suti descriptonwith regard to the suit preoprty 40 cents of land is situated within the following boundaries:
by East: land belonging to the secnd defendant and Syed Kathe sahib By south: fourth defendant Chinnappan house West : Muniammal land and west Rahman sahib land North:
The suit proceeds that the first defendant was originally the owner of the land covered in registered slae deed dated 15.9.1993 and he sold the suit preprty measuring 40 cents to the plaintiff for sale consideration... ynder registered sale deed dated 12.9.1995 and the north boundary of suit property meansurign 40 cents though given as suit land ..one Muniyammal, no such land was available on the north of the suit land and the land if any belonging to the first defendan tisutated north of the usit proepryt, thepalitniff has the right of pathway to got suit land and he plantiff has actualy ging to the suit land by mamool pathway of the land and the first defendant naa tha sno right title and nor is he in ipossession of the same and either of the parties are entitled to suit land. Whereas the defendants 2 to 4 with the cnnivanceof the first defendant tried to tresass into the msall portion fo the nroth land and tried to prevent the plaintiff to suit land and threatign leading to ..and threatended the plaitnfif to through away and take forciable possession fo the same.
The plaitniff has by contending so, sought declaration f the plaintiff title in the suti preopryt and permannt ijunctin restraining the plaintiff's peaceful possesison and enjoyment of the suit property.
As per the descritipn of the suti proepryt,.......
The suit relief is seriously opposed by the contesting defendants 2 to 4 by denying the plaintiff's claim for any right over 3 cents in S.no.22/F siutated on the nroth of 40 cents of land purchased by the plaintiff. According to the defendants 2 to 4, the first defendn aftr having sold te the plaintffif retained 4 centsof land on north side of the land and the reaining belonging to the vendor as shown as northn boundary in the sale deed dated 12.9. and the same was subsenqtly sold to the second defendnat on 20.12... ad 40 cents belongint to the plainitff and 3 cents belonging to the second defendant was formed a well bridged. Whereas, the same was wrongly given as rahman sahib land in the suit description. The defendants 2 to 4 have in their w .s. stoutly denied any right of pathway from the situated from the northern side and from the .... the defendants have also in the wr.s. Stoulty deneid the enjoymetn of 3 cents on the northenrn side by the plaintiff as passage in any other manner.
Both the courts below have accepting the claim of the plaitnfif decreed the suit by granting the relied in respect of 40 cents with the right of passage in 3 cents on the northern side. Agrieved against the same, the second defendant has come forward with the rpeent appeal befor this court.
The second appeal si admitted on the follwos additional qeustionof law.
heard the rival submission made on both sides and perused the records.
The first defendant has under Ex.B2 purchased northern boundary an extent of 43 cents in s.no.22/1F the land belonging to S.K.Sahbi and Muniammal. The plaintiff has admittedly purchased 43 cents from the first defendant under Ex.A1. The northern boundary of the property for 40 cents sold to the plaintiff is the remaining land belonging to the vendor and the land belonging to muniyammal. That means, the vendor retained 3 cents out of 43 cents in northern portion. As per the description of the property covered in Ex.A1 sale deed dated 12.9.1985 40 cents, with 20 ... with mamool right of passage (mammool vazhi nadai pathiyam) is sold to the plaintiff. Ex.B1 is the sale deed dated 20.2.1991 executed by Sayed Basha in favour of the second defendant Chinna bedda Nayidu in respect of 3 cents on the north of 40 cents. The land is sold along with pulmarin numbering 7 and mamool vazhi pathiyam.
The combined reading of Ex.B2 sale deed and the pltianiff sale deed Ex.A1 sale deed and the second defendant sale deed Ex.B1 would go to shwo that the first defend ntpurchased 40 cents on the south of the land belonging to S.B.Rahman shabib and muniyammal and he sold 40 cents in sourthern portion to the plaintiff and he retained 3 cents on the northern portion and 3 cents are shown on nrothern boundayr.. and thereafter 3 cents on norhter portion which is situated on north of the land beloging to rahman and muniyamml is sold to the second defendnat. The plaitniff has come forward with the suit seekign the relief of declaration and injucntion irne respect of the land measuring 40 vents which is admtitedtly extent covered under his ex.A1 sale deed. However, the boundary of 40 cents is given in suit scheudl ein such a manner and the nrother boundary is shown as the land belonging to Rahman and muniyammal thereby, the either 43 cents on the north of the land belonging to Rahman and Muniyammal is shown as suit land. As rightly pointed out by the learned cousnel for the second defendant appellant, the plaitniff cannot be permitted to make any claim in repsect of more extent thatn what is covneyed to him. The facts reamins unsidputed that he entiteld to 40 cents as per his sale deed and the remaining 3 cents on northern portion is sold to the first defendant and any claim for right, title and interest in repsect of 3 cents setting up on self and any claim denying the right of the second defendant in respect of 3 cents is hence legally and factually unsustainable.
The trial court has restricted the relief of declaration and injunction in respect of 40 cents. Whereas, the lower appellants court has on total misconception of facts and misconstruing the documents, arrived at the conclusion that there is no proof to show that the first defendant retained 3 cents, out of 43 cents and the same is sold to the second respondent. The lower appellant court has arrived at an erroneous conclusion that as per the boundaries and extent mentioned in Ex.A1 document, entire extent excluding 3 feet passage is purchased by the plaintiff. There is abosltuely no bassis to arrived at such consluion. Expcet wrongly mentioning the bundary, no such specific claim is made by the plaitniff in respec tof entire 43 cnets. In the absenc eo fany pleading, any cliam and in the absen ceo fany relief sougth for, the lower appelaltne court has chosed to granted the suti relief in respec to fetire 43 cents it is nobody case that 3 cents passage in that event, the jdugemnet and decree graned by the lower appellant court 43 cents excluding 3 feet is legaly and factulaly unsustainable. As staed alred, the declaration relief as soguth for is 40 cents more fully described in Ex.A1 sale deed. As far as the 3 cents covered under Ex.B1 is concerned, no right of passage is given to the plaintiff. The right of passage mentioned in the roiginal title deed in Ex.B2 and Ex.A1 and Ex.B1 as maool valzhi nad. It is nowhere mnetiioned in eithe rof the doucemtns that mamool passge lies in 3 cents in northern side. There is also no peladign to that effect raised by the plaintiff. The entire averments raised in the plaint go to refer to the 40 cvents as suit land. The plaitniff has only at the end of para 5 aveered that the plaitniff has got the righ of pathwy through the defendant land. Even then, the plaitnfif ha snot any specific claim in the first part of para 5 he neid the 3 cnts on the northenr side. He claimed the right of passage in the remaining land. If there is any land available in the northen side.that shows the plaitniff has not know the defiicnite knwoeldge his right of 3 cnts on norhtern. The learned cousnel for the plaintiff in the course of arugemtn admitted that he was not given any such right in the docuemtn. It is contended that what is claimed as right of passage by way of easment of necessairty.
Here again, there is no pleading rasied in this regard. There is n specific averment eragrding length, width, breadh of the pathway and beginnign and end of the same. No separate description was given in the suit schedule in respect of so called pathway. Though the Advocate Commissioner is appointed to go and inspect the proeprty to ascertain the existence and location of so called pathway, Ex.C1 ad C2 AC report and plan are of no help to prove the claim of the plaintiff. The existence of pathway is nowhere indicated in the AC reprot. On the contrary, there is well formed bridge between 40 and 3 cents and the same was reported to be oblietrated. The pathway for plaintiff property is shown on the southern side. The plaintiff appears to have not filed any objection for Exs.C1 and C2 and the same are also not accepted by the trial court. Be that as it may, the court below without any pleadings and without any specific relief in respect of 3 cents have graned the relief and the same is without any evidence and by overlooking material evience before this court, the findings so rendered by the courts belwo decalrign the plaintiff's right of way in 3 cents is in my considered view totally perverse and vitiated. The plaintiff has under the guise of seekign relied in respect of 40 cents has obtaind the relief of 43 cents in deceitful manner based on the pleadings and evidence adduced before the court.
The jdugemnet of decree of the courts below is hence not sustainable and the relief is restricted to 40 cents within 4 boundary as decribed in Ex.A1 plaintiff's sale deed dated 12.9.1985 and additional sub and sub question of law in favour of the appellant.
In the result, the judgment and decree of the courts below are restricted to 40 cents more fully described in the plaintiff ExA1 dted 12.9.1985 and the second appeal is accordingly disposed of. No costs.
SA.1341 of 20101 The second defendant is the appellant herein. The suit arising out of which is the present second appeal is filed by the respondent against two defendants by name Selvarasu and Mahalingam who are the appellants herein for the relief of permanent injunction restraining the defendants from interfering with the plaintiff's peaceful possession and enjoyment of the suit property.
The plaintiff cliaming himself to be owner and in possesssion and enjoyment of the property on the strength of Ex.A1 Exchange deed dated 24.4.1998 executed between the plaintiff and the first defendant, has sought the relief as stated supra. The suit is not contested by the first defendant selvraj but by the second defnenat/appellant herein. The suit relief is resiste by the second rdefnednat by denying the title claimiend by the plaitniff and his possesison ande noyment of the property and the defence so raise d by seetting title himself on the strength of unresitered sale deed Ex.B1 datde 26.6.1992 an Ex.B2 sale afreemtn purportedly executed between the first defendant and ... on one hand and the second defendant on the other hand in respcto fht esuit property. The plaintiff during trial produced Ex.A2 ksit receipt and Ex.A3 dated 18.10.2004 computarised patta in support of his claim as made in the plaint. Both the parties adduced oral and docuemntary evidence. The defendnat in addiiton Exs.B1 and B2, has also produced the exchange of notice between the second defenant on one hand and the first defenant and his brother, tcopy of the plaintiff as Exs.B...
The trial court dismissed the suit by disbelieving the plaintiff's case regarding his possession and enjoyment of the property and by accepting the defendant's calim. Aggreivdd agaisnt the same, the plaintiff preferred AS.34/2007 before the learned Sub Judge, Chidambaram. The learned Sub Judge has reversed the findings of the trial court and decreed the suit in the following two grounds. (i)by placing reliance A2 kist receipt and A3 patta which are obtained much after the institution of the suit. (ii)by casting the burden on the defendant to prove his case. Hence, this SA by the second defendant.
The second appeal is admitted on the following substantial questions of law.
Heard the rival submissions made on both sides and perused the records.
The fact that the suit property originally belong to the first defendant is not denied. The dispute is now between the between the plaintiff and the second defendant, who claim to have acquired title and to be in possession and enjoyment of the property on the strength of Ex.A1 Exchange deed dated 23.4.1998 and Ex.B1 unregistered sale deed dated 26.7.1992.
Both the plaintiff and defendants claimed possession and title in respect of the suit property. While the plaintiff claimed title on the strenght of registered sale deed, the defendants claimed title on the strenght of unregistered sale deed. Though unregistered sale deed is anti in point of time, the defendant cannot be permitted to raise any claim for on the strength of unregistered sale deed coupled with possession.
as such the defendant cannot be permitted to deny the plaintiff's title on the strength of registered exchange deed.
As rightly argued by the learne cousnel for the defendants, the plaitniff, ought to have under such circumstances, added the relief of declaration and of title in respect of the suit proepryt. Both the courts below have without any delcaratory relief for title in respect of the suit proeprty decided the issue relating to title. Whiel the trial court rejected the claim of the plaintiff and upheld the claim of the defendant, the lower appellate court reversed the same and granted the relief in favour of the plaintiff on the strength of his tile and possession and enjoyment of the suit property. Such course adopted by the courts below is contrary to law and is unsustainable and substantial no.2 is answered against the plaintiff.
As far as the sub questions of law 3 and 4 are concerned, the defendants has challenged the injunction relief granted in favour of the plaintiff by setting up title himself and by claiming protection under section 66A of the transfer of Property act on the strength of sale deed dated 26.8.1992. The claim for title on the strength of unregistered sale deed, by ignoring the registred sale deed in favour of the plaintiff is in my considered vie legally unsustainable. The defendant can at the best independently seek compulsory registeration fo the doucemnt enforcement of Ex.B1 date 26.2199 or Ex.B against the proposed vendor and the claim for title is hence unsustainable.
The defendant has for the first time before this court raised the plea regarding for protection under section 53a of the transfer of property Act on the strength Exs.B1 and B2 5.4.1997. it is contended before this court that the firt defendant and his brother having unregistered sale deed and agreement with the plaintiff and parted with possession, is bound to execute the sale deed in their favour by applying the principle of part performance of the contract. By contending so, the second defendant has sought to deny the right, title and interest claimed on the plaintiff on the strength of Ex.A1 registered exchange deed. Such claim is in view of the law laid down in the jud1997 7 303 Ramkumar Agarwal v. deed through LR cannot be permitted to agitate for the first time at the second appeal stage. Further, the defendant has through out claimed absolutely title over the property Ex.B1 and B2 and he has no where raised the plea to treat Ex.B1 and B2 as agreement for sale and raised any plea his willing to execute the contract for part performance. The Hon'ble AC in para 8 of the judge negatived the plea under section 53 of the transfer of property Act, on the ground that the same is urged for the fist rime at the time of second appeal stage and on other ground that the parties failed to prove his willingness to perform his part of the contract, as such, no protection to his possession could be claimed by referring to 53a of the transfer of property act. By applying the same view, the substantial question of law 3 and 4 are decided against the defendants.
The sub question of law 1 relates to the finding of the lower appellate court regarding the plaintiff's possession and enjoyment of the suit property. The plaintiff has in the plaint, relied on the sole document in Ex.A1 unregistered exchange deed dated 23.4.1998 in support of his claim for title. It is now here stated in the plaint that he after exchange of property, by paying kist and by obtaining patta. Only document produced along with the plaint document is Ex.A1 dated 23.4. whereas the plaintiff during trial produced two additional documents viz., Ex.A2 kist receipt dated 23.4. for fasli 2000 and A3 patta dated 18.10.2004. The trial court did not take into consideration Ex.A2 and 3. whereas, the lower appellate court placed strong reliance ofn Ex.A2 and 3 accepted the case of the plaintiff. LAC while doing so, failed to consider the relevant point of time at which Ex.A2 and 3 are obtained and produced before the lower court. The plaintiff has not come forward with any explanation as to why no kist was paid for the period between 1998 and 2000 and patta was obtained in 2004 that too one week prior to his being entered into the witness box. The lower appellate court without appreciating the above fact, simply accepted the Ex.A2 kist receipt as material proof to show his possession and also placed reliance on Ex.A3 patta. It is found by the lower appellate court that Ex.A2 kist receipt refers to the plaintiff's possession of the suit property. The finding so rendered by the LAC on the basis of the documents, which come into existence during trial cannot be in my considered view, allowed to be sustained and finding based on Exs.A2 and A3 is hence perverse and the judgment based on such finding warrants interference.
Excluding Ex.A2 and 3, the oral and document arty evidence to prove his title and possession are as follows:oral statement of the plaintiff and one balasubram brother of the first defendant (ii)Ex.A1 exchange deed. It is true that the plaintiff and his witness as PW1 and PW2, would depose about the execution of Ex.A1 and the possession handed over to the plaintiff on the strength of the same. Ex.A1 exchange deed did not speak about the factuam of possession being handed over to the plaintiff on the same day. It is also pertinent to mention at this that while transaction effect under Ex.A1 is exchange of properties belonging to the plaintiff and the defendant, the plaintiff constantly refer to the same as sale transaction. While the document says that the plaintiff and D1 has under Ex.A1 exchanged A and B schedule properties belonging to the first defendant and plaintiff respectively and consideration was paid was only by the first defendant to the plaintiff for taking B schedule property belonging to the plaintiff and no sale consideration was paid in respect of A property. The plaintiff through out claimed that the transaction effected between is sale deed and he purchased the property from the first defendant for sale consideration of Rs.40,404/- such claim is contrary to the recital contained in the document. Regarding the possession, the plaint is silent, as the date on which possession is taken over by the plaintiff whereas, the plaintiff as PW1 has stated that he took over the possession on the next day of Ex.A1 exchange deed. Whereas, PW2 who is brother of first defendant would say that the plaintiff was put in possession of the property on the same day of Ex.A1. Except two documents which are produced during trial, no other document is prior to institution of the suit produced in proof of the plaintiff possession and enjoyment of the property from the date of Exchange deed. As a matter of fact, the plaintiff has as PW1 not come forward with definite case regarding his possession. The plaintiff as PW1 is not even aware the boundaries of the suit property. He would further say that the property was lying as drying land for nearly 5 years. Though he would say that he has been paying kist receipt after exchange deed, he did not produce the kist receipt for the earlier period before this court. On the other hand, PW2 who is one of the parties as Ex.A2 & 3 would in the witness box, categorically admit that execution of Ex.B1 and the panchayat held in respect of the issue relating to execution of sale deed by the first defendant and DW2 in pursuance of B1 and B2. And the enquiry conducted before the police officials in the connection given by the second defendant. The second defendant through tout that he sold the property on the strength of Ex. unregistered sale deed. The second defendant is put in possession of the property ton the same day and the first defendant and his brother, after receiving full sale consideration, refused to come for registration and the same compelled the second defendant to issue lawyer notice and convene panchayat and raised police complaint and enquiry was conducted etc. the very reading of oral evidence of PW2 and DW1 and DW2 would considerable extend his claim regarding execution of document, panchayat held and enquiry and what transpired in panchayat and police enquiry. The PW2 categorically admitted the execution of document but denied handing over the possession. Whereas, the first defendant has in ex.B5 reply notice admitted that the handing over the possession in respect of one of the properties covered under Ex.B1.
The combined appreciation of the entire facts and evidence would only reveal that excluding Exs.A2 and A3, the plaintiff has not proved his actual possession and enjoyment of suit property either from the Ex.A1 exchange deed or any time thereafter or from the date of institution of suit. Whereas the defendant's claim for possession and enjoyment in pursuance of Ex.A1 is on the strength of available evidence is probablised. Though the plaintiff claim for title on the strength of Ex.A1 registered exchange deed can be accepted, the same is not helpful to prove his actual possession in support of the relief for permanent injunction sought for in the suit. As the suit is only for bare injunction and as the actual possession of the suit property is the basis for such relief, the plaintiff having failed to prove the same, cannot succeed in the suit. As the burden is on the plaintiff to prove actual possession in the suit for permanent injunction, the failure of the defendant if any to prove his title, is in no way, helpful to the plaintiff. The plaintiff having failed to establish his case, is hence dis-entitled to the relief sought for herein and the substantial question of law no.1 is hence answered against the plaintiff.
Thus, for the discussions held above, this court is of the view that the judgment and decree of the lower appellate court is liable to tb ereversed and the jugement of the tiral court stands restored.
In the result, the second appeal is allowed by setting aside the .... No costs.
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SA.868 and 867 of 2006 The defendants 1 and 2 are the appellants herein. Both the suits arising of which are the present two second appeals in O.S.310/1995 and 123/2000 were filed by the first respondent/plaintiff by name Natarajan. While OS.310/1995 is filed for declaring the possessionery right of the title in respect of A schedule and for consequent .. and for partition of A and B schedule properties, O.S.123/2000 is filed for permanent injunction restraining the defendants from dispossessing the petition by force or in any manner interfere with his peaceful possession and enjoyment of the property. Out of two suits, OS.123 of 2000 injunction suit is earlier in point and time and the plaint is filed on 18.8.1995 and is numbered on the same day on the file of the District Munsif Court, Krishnagiri and thereafter, transferred to sub court, Krishnagiri and renumbered as O.S.25/1995. The suit properties in respect of which the relief sought for in both the suits are vacant sites bearing D.No.5 west Link Road, Co-operative colony, Boganapalli village, Krishnagiri Town, including two storied terrace building having, Nursing Home, under the name and style of Rangachari Nursing Home, which include operation, apparatus, bed, etc. and the adjacent house bearing D.No.6 more fully described as A and B schedule respectively and movables more fully described as items 1 to 27 in O.S.No.310/1995.
Both the suits are by common judgment dated 21.5.2004 decreed in favour of the plaintiff for the relief sought for by accepting the plaintiff's case that the registered partition effected between the parties on 23.4.1970 is only in respect of the properties mentioned therein and Rangachari Nursing in Door No.5 and adjourning residential house in D.No.6, belong to joint family consisting of first defendant father and the plaintiff and other defendants 2 and 3 son. Having been purchased and developed from and out of the ancestor nucleus and the income jointly derived from the plaintiff and the defendants 1 and 2 in the nursing home through medical profession. Aggrieved against the same, the defendants 2 and 3 are now before this court.
Both the second appeals are admitted on the following substantial questions of law.
At the time of hearing, this Court added the for determination of the second appeals.
As already referred to, both the suits are decreed in favour of the plaintiff in respect of suit properties by ignoring the earlier 1970 partition and by treating Nursing Home and adjoining residential house as ancestral properties. Such finding is rendered by casting the burden of proving the self acquired nature of the properties on the first defendant. In order to appreciate the correctness of the finding so rendered, few facts, which are relevant for consideration herein are as follows:
It is not in dispute that the family consisting of the first defendant father, plaintiff and the defendants' 2 and 3 sons own ancestral properties. The first defendant was the medical doctor by profession. The vacant site over which two storied terrace building having nursing home is admittedly purchased in the name of the first defendant during 1960. It is the specific case of the first defendant that the construction of the above mentioned building over the vacant site is completed between 1960 and 1963. The case of the first defendant as stated above regarding the date of purchase and period during which the construction was completed, is no where denied by the plaintiff. If that is so, it is for the plaintiff to prove that the income derived from the ancestral properties were such used for other items. Such legal position is supported by the following decisions:
(fortified by the learned brother judge in the decision 1999 2 LW 713 Amirtha lingam v. Udyathama and 15 others. ) 1954 SC 379 Srinivas Krishna Rao v. Narayana Kango, followed the decision Privy counsel AIR 1947 PC 170 Apparavo Surya Nair Murthy, 1987 AIR 1950, AIR 1959 AIR 1 AIR Mallappa Giri pe v. Ellappa Gowda, AIR 1964 1 SC WR 856 K.B.Naryasamy Iyer and v. ...K.P.Naryasamy and others. AIR 1969 1096. Mudugi and others v. Ramahandra Rev Gowda and sung. AIR 1957Ramachandran v. Krishnamurthi, AIR 1996 Surendra Kumar v. Pul Chand. Dvisiion Bench 1975 2 MLJ Madras High court Kandasamy Chettiar v. Gopal Chetitar. In all these cases, the legal position reiterated is that mere existence of joint famuly nucleus alone is sufficient and it must be furth restablished that existence of funds are such and surplus sufficient for purhcase other proprteis in the name of the Kartha so as to trat the same as joint fmaily properyt and the proof requried is very strict and the burden...that the property in the manager or any coparcenal is to be treated as joint family property. The presumption that such acqusition is attributable ..a nd its incoem ..lwoudl depend prove or joint fmaily nulclear on the date of such joint fmaiy purcahses.
Here in this case, absltey no such evidence is addued on the side of the plaitniff, as such the presumption that acacceeision made by the father or purchases mad eby him should be deemed to be from and out of ancestroy joint fmakly nucleaus. In order to show the plea of the plaintiff that the nursing homse ist eh joint famly proepryt, the only evidence adduced is Ex.A3 Sale datted 22.8.1962 which is admitteldy in favour of one of the ancestral proepryt. It is true that the firt defendant father under Ex.A3 dated 23.8.1964 sold one of the ancestra proepryt for rs.50000 for development of buineess. But as the sale is of the year 1964, putting up construction in the vacant site of vacate p much before 1964. that by itself will not no presumption is drawn that the sale amount is utilised for purchase and construction of the property accommading ading the nursing home. In this context, the legalprinciple to be considered is laid down by the divison bench of our high court in the AIR 1953 made 723 Venkata ramaiya v. venkata ramappa and 1957 Mad 86 Ramakrishna v. Vishnu murthy. AIR 1953, the Divison Bench pleased to hold that if a member is joint famly is.. for that purpose, he gets assistance by contribution from joint.. without any further assistance and course busienss individual or in partneship acquired proepryt by his own exer .it will nto be justifiable to hodl that either buesisn or proepryt is joint family property. In AIR 1957, similar legal proposition is reitrered. It is observed therein that it is necessary that nuclesr is such, after meeting the expenses as would enable the manager to aquire proepryt with that. When it is not speciifc case of the plaitnifaa nd it is nto duly established before the court that there was existence of sufficient ancestral nucleus so as to form the source of amount for subsequent accecciion made by the first defendant, the question the trating the nurisng home and residianl house which are standing in his own name and to some extent considearble extent to considner without the asistnt of joint family fund as joint family proepryt does nto arise. Only in this context alone, the partiiton effected beteen tehparteis on 2.4.1970 Ex.A4 is to be necessarily looked to. It is the pecific case of the firt defndnat that in earlier partition are in respect of al ancetral joint famluy proeprties and after 1970, there is no joint family status and the family is divdied by meals, worship and status. Though it is sought to be made out on the side of the plaitniff that the earluer parittion is only in repsect of few proeprties and the other proeprties which were admitedly existence an availabel for parition as on 1970 are ept quite by the parties and the same is not duly established before this court. There is no such clause in Ex.A4 partition deed indicating consensus arrived at betwene the parties to keep few property common for further partition. As a matter of fact, Ex.A4 partition is effected as demanded by the plaintiff after he attained majority. The father and three sons are duly allotted properties in ExA4 partition deed. It is nobody's case that the partition was obtained by fraud, coercion, undue influence. It is also nobody's case that it is unjust and unfair and is unequal and is detrimental to the interest of two of the minor sons. The plaitniff became doctor only some where during 1988 much before the second defendant became doctor and both of them joined in the business of the father. By the time, the sons came and join with the father in the medical profession, the hospital was established one and had been functioning in full fledged manner. Eve otherwise, there is absollteuy no evidence to shwo that the income drived form the Nursing Home through contribution is from the plaitnfif is such to form the source of improvmemtn of busienss. As am terrof fact, theloan was obtaine din fht name of the second defenat for putting futhe contruation and for purchase of machinery. It is nodboy case that loan so obtained was discharged from and out of the joitn accession of first defenant plaintiff and the second defendant's sons. The case of the defendants that the loan was discharged by the second defendant is nto seriously deneid by the plaitnfif. What is sought to be highlighted befoe this court th th hoint account stand in the name of the father and two sons and operated by either of the account holder. That by iself wooudl go to prove the joint famly nature of the buseinss os as to treat the proepryt in which the poeprty is crried on as joint famy..
as a matter fo fact, the plaintfif got married in 1995 and he was with the father in the nursing hose only for few years and left with fatehr and his family elsewhere. No proof is made available herein to show that the joint fmaily satus continues even aftr 1970. if that is so, the defendant's case that the joint family status was disrupted after 1970 and the rewas no joint fmaily or proeprty available for partition and no action is maintainabel for second parititon in respect of the proepryt bleonging to the individual and by virtue of earlier parititon under Ex.A4 parition. The present suit for partition is not maintainabel deserves merits and acceptance. In that event, the proeprty standign in the name of the individusl is hedl to be self acquiation without the funds of joint famly funds and to be treated is self acquried proeprty. And the question fo granting any injunction against true owner hence does nto arise.
It is nothing unusual for the sons, who completed medical course to join the nursing home run by the father and permission givne by the father to use the portion fo the properyt belonging to him by the sons in the ftehr'busienss cannot be construed as proepryt of joint famlily for want of any prooft to indicate such intention on the part of the father to through the inidiviudal property in common pool. There is no common pool in existence after 1970.
Had the claim made by the plaintiff been true, the plaintiff becomes the com-owner of the proepryt and his possesison if any along with in his capacity as co-owner. As such, no claim for declaration of his possessionary title in respect of A scheudle which is item 1 of B scheudle and consequently injunction reliefs are maintainable.
However, both the courts bleow have by highlighting the minor aspects, and by overlooking legal principles laidd own in the abvoe decisions, have accpetd the pla of he plaintif and through the burden to disprove on the plaintiff on misconception of favt and on law. The finding so rendered by the courts below is hence ocntrary to law and is perverse and is factualy and legally unsustainable and calls for interference by this court.
Joint family property: 2010 1 MLJ K.V.Ramasamy v. Ragahavan and antoher, AIR 1969 SC it is held so. (...) in the result, the jdugement and decree of the tirla court deservs to be set aside, as the ubstance qutions of alw are answered in favour of the appelalnts.
In the result, the second appeal is allowed by setting judgment and decree of the courts below.
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EB The first appellate court has in paras 20 and 21 of its judgment, extracted the procedure laid down for collection of compensation charges, on deduction of violation if any by the consumer and for collection of extra levy on deduction of theft of energy. The procedure is laid down under clauses 6.01, 6.02, 6.03 and 8.05 of the Terms and Conditions of Supply of Electricity. The clauses above referred to contemplates show cause notice to the consumer and detailed enquiry and also provides for an appeal remedy against any order passed either levying compensation charges or extra amount for theft of energy or disconnection wither compensation charges or extrac charges levied. The procedure contemplates that on deduction of violation and theyf of enery the officer authority e siwll issue a notice to the consuemr to show cause as to why extra levy can be levied. If the consumer failed to send his explanation, the officer authorised shall conduct a detailed enquiry to represent his case if any and an order will be passed assessing extra levy and the copy of the order will be duly sent to the consumer and asking him to pay extra levy in equal instalments. As rightly found by the lower appellate court, the procedure laid down under the terms and conditions, has been seriously violated in the present case. The Electricity Board is unable to make out any reason or ground to disagree with the finding of the lower appellate court that the Board before passing any order holding the consumer or tenant as guilty of the theft and before levying any extra charges for the theft energy so consumed failed to issue show cause and failed to hold any enquiry in accordance with the procedure so laid down under law. the Electricity Board has also not followed the procedure before disconnection of the electricity connection under section 24. As rightly argued by the learned counsel for the respondent, the order of acquitting both the owner and tenant by the criminal court for the act of theft of energy assumes greater significance herein. When the relevant provisions of law under section 24 of TNEB contemplates prior notice to the owner before disconnection, the same is violated by issuing notice after disconnection was made. Thus way, the disconnection of service connection without any violation of the terms and conditions of the supply in respect of the same and without following the procedure laid down under law, is not only unlawful, but also against the principles of natural justice. The finding of the Lower Appellate Court to that effect is based on sufficient materials and supported by proper reasoning. The appellant TNEB has not made out any ground much less any substantial question of law to interfere with the well considered judgment of the lower appellate court by declaring the disconnection of service connection in question as illegal and by granting mandatory injunction by directing the Electricity Board to restoration of the service connection which was already disconnected.
Viewing from any angle, the impugned judgment and decree of the lower appellate court calls for no interference by this court and the substantial questions of law are accordingly answered in favour of the plaintiff.
Though the learned standing court for the Electricity Board would seek to rely on the findings of the lower appellate court in AS.163/93 arising out of O.S.71.. instituted by the tenant in this regard, the same is not binding on the owner, who is neither party to the proceedings, as such the principle of res judicata is not applicable to the present case.
Para 38 of SASTRA University Thus, for the discussions held above, the petitioner being unaided institution, is entitled to claim full fees either for entire course or for particular year as the case may be, when the student left the collection in mid stream. As such, the grievance raised by the students in the impugned complaints, does not make out any prima facie case against the petitioner University to subject the same to the ordeal of trial. When the complaints are both legally and factually unsustainable, the same cannot be in the interest of justice allowed to go on, so as to cause serious prejudice to the petitioner University and the complaints are hence liable to be quashed and stands quashed.
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Vadakalai & Thenkalai WP.
The writ petition is filed by an individual for himself and on behalf of Thenkalai Athiapaka Mirasthar, which is one of the sects professing Vaishnavism in Kancheepuram against other sect. Originally the writ petition was filed against the Commissioner HR&CE and Executive Officer of Vellakauli (deepa Prakasa Sri vedanda Desika Kancheepuram) for issuing a writ of mandamus for directing the official respondents to forthwith implement the judgment and decree of the Division Bench of this court dated 18.7.1918 made in CMA.221/1917 thereby reversing the judgment and decree of the lower appellate court made in AS.443/1915 and by judgmnet and decree of the trial court in 441/1908. The suit in O.S.19414/1908 is filed by the indiviudal plaintiff representing thenkasli Sri vaisah na Brahmin resident of Kancheerpua against individual defendant belonging vadakalai belonging to Vaishnava Brahmin of Kancheepuram and against trustees of the second respondent temple at Kancheepuram in respect of Athipakkam mirachi right in the said temple as declared by the High court in SA.1146, 1147 1148, and 1423/1899 arising OS.295/1899 on the file of Distirct Munsif court, Chengalpet. The right claimed by Thenkaali sect is only mandatr sancted resiation .. in connecitonw ith worhip and shrines attached thereto and in profession is in thenkaalsi amndatry sri cha them thaila patram. p.3. Vadakalai has no right to mandtra vali thirdumana i.e. To take part in athikpattka service except ... and only right availabel to them to join thenkalai mirachi in atthipakkam serivce and recite the same mandtram and same ... vali .. as thenkalai mirasthars. p.6. And they should so without forming separate assembly. The suit was filed for declaring for such delcaration as stated above and for consequential injunction restraining Vadakalai from reciint... vali thirunama either during worship in the temple or during procession. The suit is seriously resisted by the contesting individual belonging to vadakalai brahmins. However, during pendency of the present suit, similar suit in OS.10/2006 relating to athida mira the temple of devaraka kancheepuram was disposed of by the District court by Chengalpet on ..09 and the same was thereafter questioned before the High court by way of appeal and the High court by judgment 15.1.1913 modified the judgment of the District Court. In view of the revived judgment of the High court, the parties in O.S.414/1908 arrived at settlement to have similar decree as that of the decree made in O.S.10/1916 as modified in AS.117/1910 by the High court.
The suit was thereafter disposed of by granting the relief of declaration and injunction as follows: (i)it is only thenkali mandtry wht within the temple of Deepa prakasamy swamy at Kanchepeuram and the shrine appended thereto including vedacharia shrine during any ceremonial worship or by any gosti; (ii)vadalakal are entitled to join thenkali.. gosti as worshippers by reciting the same portion that being recited by athimpar mria; (iii)vadakalai are perfectually recite their own mantry and poonjas during the.. i.e. Cmmenctient by distinguishing of .. and for any ceremonial worship or other places of worship where pooja is performed whether service is going or not; and (iv)with regard to procession, Vadakalai are restrained their own form mandatry by forming in front of the deity or by intercoursing ideal with vedic gosti.
Crl.OP.
The learned counsel for the petitioners has at this juncture drawn the attention of this court to Sections 463 and 464 IPC, which define the act of forgery and making a false document. The act of forgery under Section 463 is, whoever makes any false document with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery. Under section 464, there are three modes to make a false document. Firstly, a person is said to make a false document, who dishonestly or fraudulently (a)makes, sign, seals, or execute a document or part of a document (b).........(c)....... (d)........with the intention of causing it to be believed that such document was made, signed, sealed executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed. The second type of making a false document is who, without lawful authority, dishonestly or fraudulently by cancellation or otherwise, alters a document in any material part thereof, after it has been made, executed or affixed with either by himself or by any other person, whether such person be living or dead at the time of such alteration. The third mode of making a false document is who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document, knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or the nature of the alteration. Section 465 is the penalty section for the act of forgery and Section 468 deals with the forgery for the purpose of cheating and section 471 is the punishment section for fraudulently or dishonestly uses as genuine the forged document. In the present case, the allegations regarding the manner of execution of the documents do not attract the ingredients of making false documents under the 2nd and 3rd modes as explained above.
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The allegations raised herein is regarding the execution of lease deed by A1 in favour of A2 and release deed by A4 in favour of A5 and settlement deed by A5 and the general power of attorby executed of executing doucemnts.SA.1265/2006
The unsuccessful defendant is the appellant herein. The Second Appeal is filed against the judgment and decree of the Lower aooelalte court dated 10.4.2006 tbereyvy decreeing the money suit in ...... on the file of the sub court, Sangagiri. The respondent plaintiff filed the suit for recovery of Rs.1,52,850/- representign the principal of Rs.1,00,000/- and interest of Rs.52,850/- with subsequentl intest on Rs.1,00,000/- at 18%p.a.from the date of suit till the date of realiation. The case of the plaintiff is that the defendant borrowed Rs.1,00,000/-. From the laitniff on executing a pro note agreeing to reay the sum at. ... the defendant failed to ... either towards principal ro interst and the legal notice issued on the plaktff on 13.2.2002 was replid with false allegations denying the suit loan transaction and denying the liability of the defendant to make any payment. The defence raised by the defendent in the reply notice dated.... and in the written statement is total denial of the suit loan transaction and execution of pro note. Through out the defendant case that the plaintiff conducted unauthorised chit in the village and the defendant was one of the 10 members in the chit group of Rs.1,00,000/- with annual subscription of Rs.1,00,000/- for 10 years and the defendant is the highest bidder of 5th year of the chit and at the time of receiving the chit amount, the defendant signed blank pro note for security purpose and there was no consideration for suit pro note and the suit blank pro note was converted into suit pro note due to pathway dispute between the plaintiff and his son. Both the plaintiff and defendant have in support of their respective contentions, examined themselves and their witnesses PW1 and PW2 and DW1 to DW3 and produced Exs.A1 to A8 documents and no documentary evidence is adduced on the side of the defendant. Exs.C1 is received as court exhibits.
The trial court on the basis of the evidence adduced before the same believed the oral evidence of DW2 Gopal and DW3 Palanisamy in support of the chit transaction theory exposed by the defendant and discharged the defendant from adducing rebuttal evidence and shifted the burden to the plaintiff to establish his case that consideration was passed for Ex.A1 and on the failure of the plaintiff to prove his case and disprove the case of ghe defendant that the suit pro note is not supported by any consideration and accordingly dismissed the suit. Aggrieved against the same, the plaintiff filed AS.66/2004. During the pendency of the appeal, additional documents are marked on the side of the defendants as additional documents as Ex.B1 CC of FIR and charge sheet in CC.67/2004 Ex.B2 CC of FIR in CC.67/2004 and Ex.B3 CC of the sale deed executed by the plaintiff wife in favour of the plaintiff. The lower appellate court on the basis of same oral and documentary evidence and additional evidence on the side of the defendant, rejected the defence theory raised by the defendant and negatived the same and reversed the findings of the trial court in this regard. The lower appellate court by doing so, acceptd the plaitniff case and allowed the apepal and decreed the suit. Hence, this second appeal by by disbelieving the oral evidence of Village Munsif who later on elected as Union Chairman as DW2 Gopal and DW3 Ex.MP palanisamy. The lower appelalte court was not inclined to take into consideration Exs.B1 and B2 as the same came into existence during the pendency of the suit. The lower appelalte court on the same orala for the reasons stated in the judgemnet, reveresed the findings ofhte trial court made in money decree granted by the lower appellate court in AS.No.66/2004 suit is filed by the plaintiff The second appeal is admitted on the following substantial question of law.
Heard the rival submissions made on both sides and perused the records.
The defendant, who suffered the money decree in the hands of the lower appellate court has questioned the correctness of the same in the second appeal, mainly on the gorund that the defendant has successfully rebutted the presumption under section 138 of the Negotiable Instruments Act and adduced sufficient evidence to establish his case regarding the circumstances under which his signature was obtained Ex.A1 is executed in blank for security purpose and regarding want of consideration under Ex.A1 and inspite othe same the burden is not shifted to the plaintiff to prove his case and the plaintiff is accepted in the absence of any evidence to prove the suit borrower and pro note in the manner as claimed by the plaintiff. It is true that in the present case, the defendant having admitted his signature in Ex.A1 pro note, the presumption under section 118 of N.I.Act is automatically raised and suit pro note is executed on the date and for the sum mentioned in the same. Once the presumption is raised, the initial burden is on the defendant to rebut such presumption either by adducing evidence idnentiap or by rleying on the eivdnee adduced ont eh side of the plaintiff. While doing so, the standary of proif required to be adudced on the defendant not one beyound reason able soubt on by preponderance of probability. The laibility cast on her stands discharged once the evidence adduced on her side raies a soubt in the minds of the court about the plaintiff's case rgarding exeuction fo Ex.A1 pro note. Once the burden cast on the plaintiffs stands dishcarge, the burden shifts to the defendant plaintiff to establish his case. In the present case, the defenant has in order to complain duty on her exaine herself as DW1 and her witnesses Goapla and Palanisam as DW2 and AD3. According to the defendants, the plaintiff and other belong to the same village and the plaintiff organised and conducted unuathorised chit in the villge and the defenant and othrs become the members of the same and the anunal subnseantio for Rs.10, for 10 eyars and 5th year the deendant ebcaem the successal bidder and hdr signatre was obtained by way of secuirty for de repayment of payment paid to her, her signature was otbained in balcn pro note and thereafter the defendants paid entire monthy installment and witness also present monthly instatment. Even thereafter, the plaintiff failed to return the doucemtn and failed to repay the amount to others and the same compelled to DW2 goapal o lodge a police complaint etc. the defenant has in supprt of her case so put forwath herein examined DW2 Gopal and DW3 Palanisamy. PW2 was then village Munsif and DW3 Ex MP. The trial court without placing undue reliance placed on he evidence of DW2 and DW3 treated them as witnesses and believed their case and accepted the plaintiff's case and dismissed the suit. Whereas the lower appellate court by attaching more importance to the status of DW2 and DW3 arrived at the conclusion that considering their status they would not have members of the chit transaction and would not have agreed to sign in blank pro note as security. The lower appellate court has by rejecting the defendant theory automatically decreed the suit in favour of the plaintiff. Such course adopted by the lower appellate court is according to the plaintiff contrary to law and against well laid down legal principal and is elgally susitanbl. Thie socur tis incliend to accept the cotnention so raised on the side fo the defendant/appeal for the followng reason as arelayd staed, the nature of porif is requried to be adduced on the side of the defendant is not strict, but such to raise doubt avout the plaitniff case. The defendant has raised the defendant regardinc hit trnasction not for the first time in the wrriten statement such defendant was raised in the earliest documnt in eh reply document i.e.. Ex.A4 reply notice contains all the partiuclars regardign total hit amoutn, annual subsec nma eo fthe persons, the year to which ti become sufficeeess bideer etc. the same defendant is refeirterated i the WS filed by the defendant as well as the iwtness box as DW1. The same is also supproted by due DW2 ad AW3 whoa re co mmebers in the chit transaction. As a matte ro ffct, DW2 gopal has also lodged a police ocmpliant for the alelged failrue of the plaintiff to repay the amount paid byw ay of chit monthly installment by DW2 and others. The ocmplaint also contain siilar theiry as raised by the dfenant, the comlaitn is duly regsigered as FIR and aftger takign congisaction, the same was tkane as B1 and B2 charge sheet CC. NO. as evidence from B1 and2. Thughthere are minor discriepancy in the evjhden coe defenant, the consistence contact of the parties, would probabilise the defendant thory. As a result, the defendant stads discharge fro the liabilty cause oupon himin adducing evidence under secgion 118 of the N.I.Act. Whereas the trial court withotu duly aonidring the legal requirement and the standards of proof requried to be adduced by the defendant disbelieved his version. Such course adopted by the lwoer appelate court is as rightly arugend by the lower apeplate court is legallly unsustainable. As the defendant hs discharge his burden, the burden shift to the plaintiff to prove his ase . whereas the defendant, though the defendnat examined one Mani who is scribe and his relatie i.le. His sister son of Ex.B2 pro mote and is intrested witness. The plaintiff hasnot adduced any evidence to prove thee source of income, the docuemtn produed on his side of Rs.A5 to P8 patt and a6 kist receipts and the same is nto sufficient enough to prove his case sufficient mens to led huge maoutn fo Rs.1,00,00 to the defednant. On the plaintiff's to prove the material aspect, the plaintiff is rightly held the trial corut rightly found that the passing consideration under ex.A1 is not prove by the plaintiff and rightly dismissed the suit. The lwoer appelalte court on earorneous approach of entire facts of the case, reersed the findisng of the trial court and the jdugement and decreeof the lower appellate court hence warrants seriosu intere and the subsequent question fo alw are answered in favour of the defendants.
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the decree for partition granted by the trial court as confirmed by the lower appellate court is questioned originally by the first defendant and thereafter by his legal heirs, mainly by relying on Exs B4 to B8 documents produced on the side of the contesting defendants. Both the courts below after detailed discussion about the pleadings raised by the parties and the nature of the documents produced on both sides and oral evidence adduced by the witnesses disbelieved the plea of the contesting defendants as if there were oral partitions among the parties during the lifetime of the father. Both the courts below have considered the inconsistency raised by the first defendant in his written statement and in his oral evidence and his witnesses regarding the factum and mode of partition during and after the lifetime of his father and rejected the same as factually unsustainable. Both the courts below clearly spelt out below that the mode of partition pleaded by the first defendant as if the major portion of the property has been alloted to him appears to be unnatural. As rightly pointed out by the courts below, the contesting defendants did not come forward with consistent plea and have improved version at every stage of the proceedings to suit their claim. Both the courts below have rightly rejected Ex. B4- application filed by the first defendant, Exs. B5 and B6 documents relating to cattle loan obtained for the purchase of pesticide spraying machine by the first defendant that they do not mention the loan in question and they do not advance the case of the first defendant regarding the partition and separate possesion and enjoyment of specific share. Likewise, the courts below have disbelieved Ex. B7- deed of muchalika purpoted to be executed in favour of one palani and Ex. B8- lease deed executed by sixth defendant and his son infavour of DW.2 and DW.5. It is held that Exs. B7 and B8 documents are for the reasons recorded by the courts below not genuine documents but created for the purpose of ..... it is held so based on ...... in the evidence of defence side witness ... with those documents. The documents above mentioned are also rejected on the ground that no such case is pleaded regarding the lease in favour of third party in respect of the property allotted to the contesting defendants in the written statement by either of the defendants. The courts below have on the basis of the evidence adduced before the same accepted the possession and enjoyment if any of the specific share of the parties entitled for the convenient enjoyment of the party. Joint family property without any partition by mets and bounds. The reading of the judgments of the court below would reveal that the courts below have rendered the finding against the oral partition and separate possession and enjoyment of the specific share as pleaded by the contesting defendants on the basis of the sufficient material and factual finding rendered also supported by the proper reasoning and the correctness of the same is questioned before this court by any valid ground raised herein and no question of law arises against the same warranting interference by this court of well-considered judgments of the courts below.
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SA.737 The unsuccessful first defendant is the appellant herein. The suit is filed by the respondent herein for declaring the plaintiff's title to the usit proeprty and for permanent injunction against the defendants from interfering with the plaintiff's possession and enjoyemtn of the suit property i.e. Dry extent measuring 2.56 acres comprised in s.no.56 Nandimangalam village, Hosur Taluk within the four boundaries more fully described in the suit schedule.
The suit was originally filed against one Nanjammal and Obli Reddy and Obli reddy died during the pendency of the suit and the case was contested by the plaintiff and the first defendant who is the appellant herein. Few facts which are relevant for consideration herein are:
the plaintiff s are the legal heirs of One Munusamy Reddy, the said obli Reddy were the sons of Dimma Rddy, who is the original owner of the property. The first defendant Nanjammal is the none else than the daughter of one Venkatta ammal,who is none else thant the sister of Munusamy Reddy, Obli Reddy and Ramaiya. The suit relief claimed exclusive title in respect of and right to be in possession and enjoyment of the suit property based on oral partition of the family properties among the brothers about 50 years prior to the institution of the suit. According to the plaintiff, while the plaintiff's father Munusamy Reddy was allotted the whole extent of ...., the Oblig reddy and ramai were allotted s.no.57 and 58 and since the date of oral partition, the parties had been in possession and enjoyument of the respective share by obtaining patta, and by paying kist and by creating encumbrance over the same and Munusamy Reddy mortgaged the property for Rs.100/- as early as in 1933 and duly executed mortgage deed having the second defendant as its witness and the mortgage was thereafter discharged by the same Munusamy Reddy. In his capacity as owner of the property and the plaintiff s have after his death, succeeded to the same and continued to be in possession of the suit property. It is their further case that oblig redy and Ramaiay, who have allotted the S.Nos.57 and 58 gifted a portion fo the same to their sister Venkataammal who is the mother of the first defendant and the same was also purchased by the mother of the plaintiff by the fist defendant and the first defendant has no other property. It is their further case that the cause of action for the suit arose when the first defendant issued a notice to the plaintiff on 2.6.1983 alleging the Obli Reddy sold the suit propertt in favour of Venkatammal in 1921.
The suit relief was opposed by the contesting defendant by denying the mode of allotment of the property as claimed by the plaintiff. According to her, the ancestral property was divided between Munusamy Reddy/D2 and obli reddy and no property was allotted to Ramaiya, who was given adoption and Ramaiya in pursuance of the partition, the suit property in s.no.56 was sold by Obli Reddy to the mother of the defendant by sale deed dated 1941 and the extent to the mother is 2 acres out of 2.55 cents and what is allotted to Munusamy is 56 cents and the mortgage deed dated 19.3.1933 is false document and the sale deed effected by the first defendant in favour of the third plaintiff Ellamma was obtained by deception and after the death of the mother, the defendant has been in possession and enjoyment of the property by exercising ownership over the same.
The parties have in support of their respective contention, adduced oral and documentary evidence. The second plaintiff and the witnesses were examined as PW1 to 4. whereas the first defendant and her witness as DW1 to ADW3 and exa.A1 to A11 and B1 to B5 documents on both sides. The trial court on the basis of the evidence arrived at the conclusion that the oral partition was among three brother and in the oral partition entire extent of 2.56 allotted to Munsufamy and he had been in possesison and enoyment of the property and the sale deed dated 10.3.1941 executed by Oblig reddy in favour of his sister in respect of 2.56 in s.no.56 is without any right to do so and the gift deed executed by Oblig Reddy and Rammaiya in favour of their sister i.e. The first defendant mother Venkattamma was in respect of the respective of the property allotted in the oral partition and the patta issued in favour of the first defendant was without any notice to the plaintiff and same was duly cancelled and after the purchase of the land in s.no.57 from Nanjammal by the third plaintiff Najamma both the lands in s.no.56 and 57 are in enjoyment of the property as one block and the same is sought to be interfered with by the defendant. (and the land in s.no.56 is mentioned as the proeprty belonging to goapa reddy as one of the boundaries to the proeprty in s.no.57 and 58 sold by Nanjammal in favour of third plaitiff Elamma).
The trial court on the basis of such findings, decreed the suit as prayed for. Agrieved against the same, the first defendant prferred AS.49/.. the lower appellate court by confirmign the finding so fthe trial court dismissed the appeal filed by the frist defendant. Hence, this second apepal by first defendat.
The secod apepal is admitted on the following sub question of law.
Heard the riva As already stated above, the basis for claining the suit relief is the oral partitonw as effectedbttewwe nt three brother long ago. oral partition, it si seriously aruged before this corut that on the side of the appellant both the courts belwo have committed serious error in accpeting the plea of oral partition in the absence of clear and cogent evidence. In my considered view, the against oral partiiton is liable to be rejected at the outself for the simple reason that the fatum of oral parition is admittedb the first defends.t wha is denied by her is the mode of prtition. While accordingtotheplaitnff, the partition is among 3 botyhers, accordintytohe first defend,t theparititon is tow borhter. Boht theourts belwo aceptedthecase of the plaintif regarding the facturm of oral partition amd themode of partition and mode of allottment fo proeprties among three brothers by duly considering the follwong factors:
(i)the entire land in 2.56 actres is mortaged by Munsamy in favour of thired party and oen te witnesses in the mortgage deed is other brother Oblig Reddy and the mortgage executed during Ex.A1 19.3.1933 is admittedly solely discharged by Munsufamy during his life time. The contention that the plaintiff's case that the land s.no.57 amd 58 were allotted to Oblig reddy and dimmaiya is established through Excs.A4 dated 10.3... executed by them in favour of thir sister Venkatamal who intent to sold it to the thrid palintiff solli under Ex.A7 dated 10...1967. though the deed of mortgage executed by Munsifusamy and the gift deed executed b Oblig and dimm redyd do not refer to the partitiona nd the same will in no manner, affect the case of the plaintiff. But for any arrangement among the brothrs. The brother could not have dealt with the proepryt bye xercising ownership over the same in their own manner and such arrangement could be in thelight of the admission of ......regarding partition among the brother and oral partition between...
After the partition, there si absoltuey no expalantion on the part of Obli reddy for his having figued as one of the witnsses in the mortgage deed executed by his brother in repsect of s.no.56. The attestoatopm......
in view of the legal psotitin, the attestion of the... soley executed by munusamy and dishcarge of the same by him much after the execution fo the sale deed by Oligb reddy inr epsect of his proepryt in favour of his sister assumes greater importance.
The manner inw hich the parties dieal with the proepryt, during the life time of all the brothers would only support the plaintiff case and in that event, the Oblig reddy who was not alltoted s.no.56 has no right to execute Ex.B1 sale deed in respect of 2.acre out of 2.56 acres in favour of his sister and no right is conveyed to purchaser under ex.B1. In that event, the firs tdefendant who is the daughter of th epurchase cannot be permtited to raise any claim in repsec to fhte properyt. Excludign the docuemtn, other doucemn relied upon by the first defendant to claim exclusive right over the suit property is chitta, patta and adangal which are not given due importance by the courts below for the reasons recorded in the judgment. As a matter of fact, the patta issued to the first defendant is duly transferred in the name of the second plaintiff by the competent authority. Even otherwise, the patta originally granted was only joint patta and no patta was issued exclusively in the name of the first defendant in repsect of the suit property and the patta issued in the name of the defendant was rejected on the ground that it was issued after sub division and the patta issued was for excess extent than what is claimed by the defendant. Kist receitp is also not taken into consideration by saying that the kist receipts do stand in the name of the first dfendatn only on the strength of patta issued in her name. As rightly le.c. For the respondent, both the bcourts belwo were nto incliend ot accept the first defendant's claim for title to the suit property on the strength of patta and kist receipt for well considered reasoning and no reason at all is made out before this court to disagreew ith the reasoning and rendered based on such reasoning by the coruts below.
In shrot, the jdugements of the courts below are based on sufficent material and supported by proper reasoning and no substantio queiono law arises calleing for interference.
Int her sult, the sa. Dismissed.
ground much less valid ground is made out ........
who is the husband of third defendant and father of the plaintiff son and D1 and 2 daughters