Madras High Court
Murugesan vs Chinniah on 25 February, 2019
1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Judgment reserved on : 18.02.2019 Judgment Pronounced on : 25.02.2019 CORAM:
THE HONOURABLE MRS .JUSTICE R.HEMA L A T H A S.A.No.1436 of 2001
1.Murugesan
2.Minor Kumarasan
3.Minor Nalluchamy Minors appellants 2 & 3 rep. By their mother and guardian Arumugathammal. ...Plaintiffs/Appellants/Appellants Vs.
1.Chinniah
2.Maideen Path
3.Mohammed Ismail
4.Raja Mohammed
5.Mathina Begum
6.Sarina
7.Sarbutha Begum ... Defendants 2 to 8/Respondents 2 to 8/ Respondents PRAYER; Second Appeal filed under Section 100 of the Code of Civil Procedure against the decree and judgment, dated 30.03.2001 made in A.S.No.151 of 1998, on the file of the Subordinate Judge, Sivaganga, upholding the decree and judgment, dated 17.08.1998 made in O.S.No.327 of 1991, on the file of the Additional District Munsif Court, Sivaganga.
For Appellants : Mr.B.Rooban
For R1 : No appearance
For R2 to R7 : Mr.M.Sriram
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J U DG ME N T
The appellants herein as well as in A.S.No.151 of 1998 on the file of the Subordinate Court, Sivaganga are the plaintiffs in O.S.No.327 of 1991 on the file of the Additional District Munsif, Sivaganga.
2.The appellants filed a suit in O.S.No.327 of 1991 before the Additional District Munsif, Sivaganga seeking for a relief of declaration of their title to the suit property and for a consequential relief of permanent injunction restraining the respondents/defendants from interfering with their peaceful possession and enjoyment of the suit property.
3.The suit property as described in the plaint is a dry land in S.No.187/1 of Kalapur (Anjukovil Village), Singampunari, Thirupathur ad-measuring 56 cents, out of 1 acre 50 cents and S.No.187/4 to an extent of 65 cents within the boundaries stated therein.
4. For the sake of convenience the parties are referred to as per their ranking in the original suit in O.S.No.327 of 1991 and at appropriate places their ranks in second appeal will also be indicated, if necessary. http://www.judis.nic.in 3
5.The appellants/plaintiffs claim title to the suit property through a registered settlement deed, dated 20.02.1990 (Ex.A1) executed by the second defendant in their favour and also contend that they are in possession and enjoyment over the said property ever since their purchase date, as evidenced by the kist receipts (Ex.A3 and Ex.A4). According to them, the defendants are attempting to interfere with their peaceful possession and enjoyment over the suit property and hence, they filed the suit for the reliefs stated above.
6.The second defendant, the father of the plaintiffs 1 to 3 in his written statement has contended that he executed a settlement deed, dated 20.02.1990 (Ex.A1) in favour of the plaintiffs 1 to 3 and that he never executed the sale deed dated 23.03.1990 (Ex.B1) in favour of the defendants. It is also contended by him that the possession of the suit property was handed over to Arumugathammal, who is his third wife, on the date of the settlement deed Ex.A1.
7.His further contention is that this settlement deed Ex.A1 was executed as per the advice of the Panchayadhars of their Village and though http://www.judis.nic.in 4 in the Panchayat Arumugathammal agreed to pay Rs.100/- per month to him, she did not keep up her promise and therefore, he executed a power of attorney to the first defendant to file a suit in a Civil Court on his behalf. According to him, he came to know about the execution of the sale deed Ex.B1 only after receiving a notice, dated 05.06.1991 from the first plaintiff. His specific contention is that the sale deed Ex.B1 is a sham and nominal document.
8.The defendants in their written statement had contended that the first defendant purchased the first suit schedule property in S.No.187/1 to an extent of 56 cents out of 1 acre 50 cents from the second defendant. After the purchase, the second defendant interfered with their peaceful possession and enjoyment of the suit property, the first defendant filed a suit in O.S.No. 216 of 1991 and that was also pending.
9.On the basis of the above pleadings, the trial Court framed the following issues:-
“1.Whether the settlement deed, dated 20.02.1990 is true and valid and whether it was acted upon?
2.Whether the first defendant's contention that he has http://www.judis.nic.in 5 been enjoying the suit properties through a registered sale deed, dated 23.03.1990 is true and valid?
3.Whether the plaintiffs are entitled for a declaration and permanent injunction as prayed for by them?
4.To what reliefs are the plaintiffs entitled?”
10. In the trial Court, the first plaintiff examined himself and two other witnesses and marked Ex.A1 to Ex.A4, while the fourth defendant examined himself and two other witnesses and marked Ex.B1 & Ex.B2.
11.After full contest, the learned Additional District Munsif, Sivaganga dismissed the suit filed by the plaintiffs vide his decree and judgment, dated 17.08.1998. Aggrieved over the same, the plaintiffs filed an appeal in A.S.No.151 of 1998 before the Sub Court, Sivaganga which also came to be dismissed on 30.03.2001. Now, the present appeal is filed on the following substantial questions of law.
“1.Whether the lower appellate Court was right in holding that Ex.A1 has not been properly proved without adverting to the proviso to Section 68 of the Indian Evidence Act?
2.Whether the lower Appellate Court was right in upholding Ex.B1 on the ground that it was registered prior to Ex.A1 without adverting to the settled position of law relating to http://www.judis.nic.in 6 the effect of registration of documents?”
12.When the plaintiffs claim title to the suit property through a registered settlement deed dated 20.02.1990 (Ex.A1) the defendants claim title through a registered sale deed dated 23.03.1990 (Ex.B1).
13. Though the settlement deed dated Ex.A1 was executed on 20.02.1990, it was registered only on 15.06.1990. In the meanwhile, the second defendant executed a sale deed, dated 23.03.1990 (Ex.B1) in favour of the defendants. The second defendant denied the execution of the sale deed dated 23.03.1990 and had specifically contended that it is a sham and nominal document. It is also contended that he executed only a power of attorney in favour of the first defendant.
14. In order to prove the execution of Ex.B1, the defendants relies on the oral evidence of the fourth defendant as well as the two attestors to the said document. The evidence of D.W.2 and D.W.3 corroborate the evidence of P.W.1 in all material particulars and there is no reason to discard their evidence.
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15.However, it is to be seen that though Ex.A1 was registered only on 15.06.1990, it is dated 20.02.1990 and nearly four months after its execution Ex.A1 was registered. At this juncture, it is relevant to extract Section 47 and 49 of the Registration Act, 1908.
“Section 47:- Time from which registered document operates- A registered document shall operate from the time which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration.
Section 49:- Effect of non-registration of documents required to be registered- No document required by section 17 (or by any provision of the Transfer of Property Act, 1882), to be registered shall
(a) affect any immovable property comprised therein, or
(b)confer any power to adopt, or (c ) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:”
16. Section 47 of the Registration Act provides that a registered document shall operate from the time it would have commenced to operate, if no registration thereof had been required or made and not from the time of its registration.
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17.Mr.B.Rooban, learned counsel appearing for the appellants/plaintiffs contended that it is well established that a documents so long is not registered, is not valid but once it is registered it takes effect from the date of its execution. He would therefore contend that though Ex.A1 was registered only on 20.06.1990 it dates back to its date of execution is 15.02.1990 and therefore, the second defendant Chinniah did not have valid title to the suit property on the date of execution of the sale deed, dated 23.03.1990 (Ex.B1).
18.Per contra, Mr.M.Sriram, learned counsel appearing for the respondents/defendants relied on the decision in Krishnan v. Sivalinga Gounder and another reported in 1996-1 L.W.622 and contended that even though it can be presumed that a document was executed on the date on which it purports to have been executed and bears the date, that is only a weak presumption and such presumption can be applied only between the parties to the transaction and not against the third parties. He would further contend that in the instant case, execution of settlement deed Ex.A1 was not proved by examining the attestors to the document especially when the execution of settlement deed is challenged and the specific allegation is that http://www.judis.nic.in 9 the said document is ante-dated. He further contended that the first defendant though filed a written statement contending that he executed Ex.A1 on 20.02.1990 did not get into the witness box to prove his contention. The learned counsel for the respondent would also contend that the burden of proof of execution of the document is on the person to prove that it was executed on the date which it bears and that since in the instant case, the defendants had failed to establish their contention that the settlement deed was executed only on 20.02.1990, both the courts below were right in concluding that Ex.BA was ante-dated. There is a force in the contentions of Mr.M.Sriram, learned counsel for the defendants/respondents.
19.The appellants/plaintiffs did not examine the attestors of Ex.A1 or the settlor (D2). Mere filing of a written statement disputing the sale deed (Ex.B1) and contending that the settlement deed (Ex.A1) was executed on 20.02.1990 are not sufficient to hold that Ex.A1 is a valid document. The second defendant though was alive during the entire trial proceedings, did not choose to examine himself as a witness to prove his contentions raised in the written statement for the reasons best known to him. He did not also file any appeal against the decree and judgment of the trial Court before the http://www.judis.nic.in 10 first appellate Court and he was shown as second respondent in the first appellate Court in A.S.No.151 of 1998. Therefore, both the Courts below were correct in observing that only after the execution of the sale deed, dated 23.03.1990 (Ex.B1), the settlement deed Ex.A1 was executed only to render Ex.B1 as nugatory.
20. On the other hand, the respondents/defendants had examined two attestors of the sale deed Ex.B1 and their evidence is cogent and acceptable and as already observed there is no good ground to discard their evidence. Both the Courts below had analysed the oral and documentary evidence adduced on both sides in proper perspective. In fact, in the decision in Krishnan v. Sivalinga Gounder and another reported in 1996-1 L.W.622 cited supra the decision of Kerala High Court in Aithros Haji v. Sekharan Nair reported in 1963 K.L.T. 282 was referred wherein it was held thus:-
“... Th er e is als o pro vi si o n in the R e gi s tr ation Act for re gi st e rin g a de e d ex e c u t e d by s e v e r al per s o n s at differ e nt tim e s . (S.24 of Act XVI of 1908). S u c h provi si o n cle arly sh o w s that the dat e of e x e c u ti o n of a de e d ne e d not ne c e s s a r ily b e the dat e app e a rin g on the de e d s o for as per s o n s e x e c u tin g the de e d su b s e q u e n t ly. He n c e it is v ery dou btful that pro vin g the e x e c u ti o n of a de e d in any way implie s the infer e n c e that ex e c u ti o n wa s on the dat e http://www.judis.nic.in 11 app e a rin g on the fac e of the do c u m e n t . In my opinio n on the m e r e pro of that a per s o n ad mit s the e x e c u ti o n of a do c u m e n t do e s not in any way ne c e s s a r ily lead to the infer e n c e that the sign at ur e wa s affix e d on the dat e app e a rin g on the do c u m e n t or that the dat e app e a rin g on a de e d wa s the dat e on which it wa s really written. Th e on e ne e d not hav e any co n n e c ti o n with the oth e r. In a ca s e ther e f o r e wh e r e the g e n uin e n e s s of a de e d is imp e a c h e d by a third party on the grou n d that it wa s not really e x e c u t e d on the dat e app e a rin g on the de e d it is not en o u g h for the party wh o relie d on the de e d to prov e m e r e l y its e x e c u ti o n sin c e as alre a d y re m a r k e d , the dat e of ex e c u ti o n m a y b e quite differ e nt fro m the dat e app ar e nt on the fact of the de e d . He n c e , pro of of g e n uin e n e s s of a de e d , wh e n its g e n uin e n e s s is imp e a c h e d not m e r e l y on the grou n d that it wa s not re ally e x e c u t e d but als o not on the dat e the de e d bears m u s t co n s i s t of evid e n c e of per s o n s wh o are in a po sition to s a y not m e r e l y that the y s a w the e x e c u t a nt s sign the de e d but als o that the y sig n e d it on the dat e the de e d wa s writte n up. In the ab s e n c e of su c h e vid e n c e no infer e n c e can b e dra w n that the dat e of e x e c u ti o n is ide ntic al with the dat e app e a rin g on the de e d .”....”
21.As already observed by both Courts below have concurrently held that the appellants have not proved the execution of Ex.A1 on 20.02.1990. It is purely a finding of facts based on evidence. Moreover, the presentation of a document for registration within four months as provided under Section http://www.judis.nic.in 12 23 of the Registration Act would not absolve a person from proving the date of execution. In cases where the date of execution of the documents is challenged, it is the bounden duty of the persons claiming under the document to prove by adducing acceptable evidence that the document was executed on the date it bears.
22.In view of all these reasons stated by me, I hold that the second appeal is liable to be dismissed.
In the result:-
(I) The second appeal is dismissed. No costs.
(ii)The decree and judgment passed by both the courts below are upheld.
(iii) The suit in O.S.No.327 of 1991 is dismissed with costs.
25.02.2019 Index : yes/No Internet: yes/No am http://www.judis.nic.in 13 To
1.The Subordinate Judge, Sivaganga.
2.The Additional District Munsif Court, Sivaganga. http://www.judis.nic.in 14 R.HEMA LA T HA . J . , am S.A.No.1436 of 2001 25.02.2019 http://www.judis.nic.in