Madras High Court
Valliammal vs Tamilselvi on 16 December, 2022
Author: S.S. Sundar
Bench: S.S. Sundar
A.S.Nos.189, 207 of 2013 & 1049 of 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.12.2022
CORAM :
THE HONOURABLE MR. JUSTICE S.S. SUNDAR
AND
THE HONOURABLE MR. JUSTICE A.A.NAKKIRAN
A.S.Nos.189, 207 of 2013 and 1049 of 2012
1.Valliammal
2.Palaniswamy ... Appellants
in A.S.No.189 of 2013
Tamil Selvi ... Appellant
in A.S.No.207 of 2013
S.Maheswari ... Appellant
in A.S.No.1049 of 2012
Vs.
1.Tamilselvi
2.Santhi
3.Maheswari
4.Ravi
5.Kannan Padmavathi
6.Arumugam
7.Sivakumar
8.Sivakumar
9.Jothi
10.Gowshelya
11.Manickam ... Respondents
in A.S.No.189 of 2013
Page 1 of 40
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A.S.Nos.189, 207 of 2013 & 1049 of 2012
1.Valliammal
2.Palanisamy
3.Ravi
4.Kannan Padmavathi
5.Arumugam
6.Sivakumar
7.Sivakumar
8.Jothi
9.Gowshelya
10.Manickam
11.Shanthi
12.S.Maheswari ... Respondents
in A.S.No.207 of 2013
1.Valliammal
2.V.Palanisamy
3.Ravi
4.Kannan Padmavathi
5.Arumugam
6.Sivakumar
7.Sivakumar
8.Jothi
9.Gowshelya
10.Manickam
11.Tamil Selvi
12.Shanthi ... Respondents
in A.S.No.1049 of 2012
Common Prayer : Appeal Suits filed under Section 96 of Code of Civil
Procedure against the judgment and decree dated 06.06.2012 in O.S.No.228
of 2008 on the file of the I Additional District Court, Coimbatore.
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A.S.Nos.189, 207 of 2013 & 1049 of 2012
For Appellant : Mr.S.Makesh
in A.S.No.189 of 2013
: Mr.G.Ponnambala Thiyagarajan
in A.S.No.207 of 2013
: Mr.V.Sivakumar
in A.S.No.1049 of 2012
For Respondent : Mr.G.Ponnambala Thiyagarajan
for R1 in A.S.No.189 of 2013
: Mr.V.Sivakumar
for R3 in A.S.No.189 of 2013
: Mr.S.Makesh
for R2 in A.S.No.207 of 2013
: R1- Died in A.S.No.207 of 2013
: R3 to R12 – given up
in A.S.No.207 of 2013
: Mr.S.Makesh
for R2 in A.S.No.1049 of 2012
: R1 – died in A.S.No.1049 of 2012
: R3 to R12 – given up
in A.S.No.1049 of 2012
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A.S.Nos.189, 207 of 2013 & 1049 of 2012
COMMON JUDGMENT
(Judgment was delivered by S.S. SUNDAR, J.) All the three appeals arise out of a judgment and decree dated 06.06.2012 in O.S.No.228 of 2008 on the file of the I Additional District Court, Coimbatore, and hence, disposed of by this common judgment.
2.The appellant in A.S.No.1049 of 2012 is the 3rd plaintiff in the suit in O.S.No.228 of 2008. The appellant in A.S.No.207 of 2013 is the 1st plaintiff in the suit and the defendants 1 and 2 are the appellants in A.S.No.189 of 2013.
3.The appellant in A.S.No.1049 of 2012 and A.S.No.207 of 2013 along with their sister filed the suit in O.S.No.228 of 2008 for partition of their 3/5 share in the suit property and for consequential reliefs. The suit is also for a declaration to declare the Release Deed dated 03.04.1986 registered as Doc.No.26 of 1986 before the Sub-Registrar, Pollachi, as null Page 4 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 and void and not binding on the plaintiffs. The plaintiffs 1 to 3 are the daughters of Late Sri. Vaiyapuri Gounder. The 1st defendant is the wife of Late Sri. Vaiyapuri Gounder and mother of plaintiffs and 2nd defendant who is the only son of Late Sri. Vaiyapuri Gounder and brother of the plaintiffs. The relationship is not disputed.
4.The case of the plaintiffs in the suit is that the suit property was purchased by their father Late Sri. Vaiyapuri Gounder by a registered sale deed dated 05.09.1973. It is their specific case that the property was purchased by their father Late Sri. Vaiyapuri Gounder out of his own earnings, but jointly in his name and in the name of 1 st defendant, the mother of plaintiffs and put up a house. In other words, it is contended that the 1st defendant did not contribute any money and that therefore, the property is the exclusive property of Late Sri. Vaiyapuri Gounder.
5.It is also the specific contention of the plaintiffs that, after the death of Sri.Vaiyapuri Gounder in the year 1985, the plaintiffs and defendants 1 and 2 became the absolute owners of the suit property and that by virtue of Page 5 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 Section 8 of the Hindu Succession Act, 1956, the plaintiffs are entitled to 1/5 share each in the suit property. The suit property is described as an extent of 10,517 sq.ft. (24 cents) with reference to specific measurements comprised in T.S.No.31 in Ward No.5 within the jurisdiction of Pollachi Municipality along with buildings.
6.In the plaint, it is stated that, in 1986, after the death of father, the family was making arrangements for the marriage of 3rd plaintiff and at that time, due to shortage of money, defendants 1 and 2 approached the Bank for a loan and in that connection, they urged the plaintiffs to execute a Power of Attorney Deed in favour of defendants 1 and 2 and that on 03.04.1986, the plaintiffs executed a document believing the same as a Power of Attorney Deed. It is also contended that the execution of the document was arranged only by the 2nd defendant and that the plaintiffs signed the document in good faith without knowing the contents of the same. It is stated in the plaint that, in the year 2007, the plaintiffs demanded partition of their shares in the suit property and it is at that time, the defendants revealed that the document executed by the plaintiffs is not a Power of Attorney as they believed, but it Page 6 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 was a Release Deed. Therefore, the plaintiffs described the document of release as a document fraudulently obtained from the plaintiffs with a clear intention to cheat them and to deprive them of their right in the suit property. The plaintiffs, therefore, prayed for declaration that the document dated 03.04.1986, is null and void. Strangely, the plaintiffs, quite contrary to the stand taken by them in earlier paragraphs of the plaint, took a stand that the Release Deed is inoperative as the property dealt with is not properly described. Referring to the document of release, it was also contended by the plaintiffs that the Release Deed is only in respect of properties of Late Sri. Vaiyapuri Gounder, which cannot be described and not with reference to the suit schedule property which can be described with reference to boundaries, extent and other details. It is admitted by the plaintiffs that the income from the suit property is derived only by the 2nd defendant. But it was contended that the plaintiffs permitted the defendants to appropriate the income towards discharge of the loan obtained by them in connection with the marriage of the 3rd plaintiff. Defendants 3 to 10 were impleaded by stating that they are tenants in the suit property.
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7.The suit was resisted by defendants 1 and 2 mainly on the ground that the Release Deed executed by the plaintiffs is binding on them and that the Release Deed was executed for valid consideration. The allegation that the suit property was purchased out of the income of their father also was disputed by the defendants 1 and 2. Though it is admitted in the written statement that Late Sri. Vaiyapuri Gounder owned a mutton stall, it is contended that the 1st defendant was also having her own income from milch animals and firewood shop run by her separately. The contentions with regard to fraud or misrepresentation in execution of Release Deed were specifically denied by defendants 1 and 2 in the written statement. The defendants also pleaded that they are in possession and enjoyment of the suit property in their capacity as absolute owners on the basis of the Release Deed dated 03.04.1986. It is further stated in the written statement that the property was the subject matter of a mortgage in relation to a loan obtained from the Bank by father and 1st defendant and that the said loan was discharged by defendants after the death of father. It is further stated that the plaintiffs knew well that the property was conveyed under the Release Deed in favour of the defendants 1 and 2. It is specifically denied that the Page 8 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 defendants 1 and 2 have repaid the loan by paying monthly installments @ Rs.10,000/- per month for a period of 21 years. Stating that the Release Deed was executed for proper consideration, it is contended by the defendants 1 and 2 that the plaintiffs, who had relinquished their right in the suit property and left the property in the exclusive possession and enjoyment of defendants 1 and 2, are estopped from questioning the validity of the document after a lapse of 22 years. The defendants specifically denied all the allegations and particularly the contention that the release deed was in respect of properties which cannot be described and reiterated that the release deed was in respect of all the properties of father. They also pleaded manner and reason for which the Release Deed was obtained from the plaintiffs in the presence of witnesses-cum-mediators who were present at the time when the properties were released by plaintiffs in favour of defendants 1 and 2.
8.The trial Court, after recording the pleadings, framed the following issues :
1. Whether the plaintiffs are entitled to declaration as prayed for ?Page 9 of 40
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2. Whether the plaintiffs are entitled to partition as prayed for ?
3. Whether the release deed was fraudulently obtained ?
4. Whether the release deed bearing No.26/86 is not valid and not supported by consideration ?
5. Whether the Court fee paid is in correct ?
6. To what relief ?
9.The trial Court also framed the following additional issues :
1. Whether the suit property is the exclusive property of the plaintiff's father ?
2. What is the extent of property available for partition ?
10.Before the trial Court, the plaintiffs examined the 1st plaintiff as P.W.1 and one Rajendran as P.W.2. The 2 nd defendant examined himself as D.W.1 and examined the husband of the 1st plaintiff as D.W.2. On behalf of the plaintiffs, Exs.A1 to A9 were marked and on behalf of defendants, Exs.B1 to B28 were marked.
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11.The trial Court, on the additional issues, specifically held that the property was purchased by the father Late Sri. Vaiyapuri Gounder along with his wife, namely the 1st defendant, out of their joint income. The trial Court further held that there is a presumption in favour of the 1 st defendant under Section 3 of the Benami Transactions (Prohibition) Act, 1988 and therefore, it was held that the property even if it is purchased by the husband with his funds should be presumed to be a property which was purchased for the benefit of his wife. In the absence of any material to rebut the presumption under Section 3 ibid., the trial Court held that the suit property is the property belong to both plaintiffs' father and mother. Since the property is the property of Late Sri. Vaiyapuri Gounder and the 1st defendant namely the wife of Late Sri. Vaiyapuri Gounder, the trial Court held that the plaintiffs are not entitled to claim any right over the half share of of the 1st defendant, the mother, during her lifetime.
12.The trial Court then considered whether the plaintiffs are entitled to get a declaration with regard to the validity of the Release Deed under Ex.A2 Page 11 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 dated 03.04.1986. The trial Court, on the basis of the documents filed by the defendants and the admission of D.W.2, who is none else than the husband of 1st plaintiff, came to the conclusion that the Release Deed is genuine and that the same was executed for valuable consideration in respect of all the properties of father. Having held so, the trial Court found that the Release Deed is binding on the plaintiffs. However, the trial Court, during trial, entertained an argument by counsel appearing for the 3rd plaintiff that the 3rd plaintiff was a minor at the time of execution of Release Deed in 1986 and that therefore, the Release Deed is not valid and binding insofar as the 3rd plaintiff's share is concerned. It was only relying upon the School Leaving Certificate, the trial Court came to the conclusion that the 3 rd plaintiff was a minor at the time of the execution of Ex.A2-Release Deed. The trial Court also held that the suit is barred by limitation, as the plaintiffs executed the document Ex.A2 knowing that it was a Release Deed and that they have not proved that they had no knowledge about the nature of the document Ex.A2. After answering all other issues in favour of the defendants 1 and 2, the trial Court granted a decree for partition in respect of 1/10 share in favour of the 3rd plaintiff and the suit was dismissed by Page 12 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 rejecting the claim of the plaintiffs 1 and 2 and the claim of 3rd plaintiff with regard to the half share of their mother.
13.Aggrieved by the judgment and decree of the trial Court, the above three appeals are filed. As pointed out earlier, the 3rd plaintiff filed the appeal in A.S.No.1049 of 2012, defendants 1 and 2 filed the appeal in A.S.No.189 of 2013 and the 1st plaintiff has filed the appeal in A.S.No.207 of 2013.
14.Considering the specific case of the plaintiffs and defendants 1 and 2 in their pleadings, the issues framed by the Trial Court and the arguments of the learned counsels appearing on either side, this Court has to deal with the following points for determination:-
A) Whether the Release Deed under Ex.A2 dated 03.04.1986 has to be declared as null and void as the same was obtained by fraud or misrepresentation?
B) Whether the document Ex.A2 dated 03.04.1986 can be declared to be null and void on account of the fact that the property conveyed under Page 13 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 the Deed is not described to identify the properties and is registered in Book No.4 of the Sub Registrar's Office?
C) Whether the Release Deed under Ex.A2 dated 03.04.1986 was executed in respect of the suit property?
D) Whether the suit property is the exclusive property of father of plaintiffs or the joint property of the parents of the plaintiffs?
E) Whether the 3rd plaintiff was a minor at the time of execution of Release Deed under Ex.A2?
POINTS No.[A], [B] and [C]:-
15.In the plaint, the plaintiffs' have admitted the fact that the document – Release Deed [Ex.A2] is in respect of the suit properties. It is their specific case that the document was executed believing the same of Power of Attorney and that it was executed at the time when the defendants were arranging marriage of the 3rd plaintiff immediately after the death of their father. It is the specific pleading that plaintiffs signed the document in good faith without even knowing the contents of the document. It is further stated that the plaintiffs came to know about the document of Release only when they demanded the 2nd defendant for a partition. The specific Page 14 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 averments in the plaint would only suggest that the plaintiffs have challenged the Release Deed mainly on the ground that the Release Deed was executed by playing fraud and misrepresentation. The very fact that the plaintiffs have sought for declaration, questioning the validity of the Release Deed dated 03.04.1986, would only warrant an inference that the plaintiffs have come forward with the definite case that the Release Deed in respect of the suit property is void and unenforceable. Having come forward with the invalidity of document to bind the plaintiffs right in the suit property, the plaintiffs also pleaded a case that the Release Deed is only in respect of property of Vaiyapuri Gounder which cannot be described to identify the property. In other words, the document-Ex.A2 is challenged on two different grounds, which is mutually contrary to other. Before the Trial Court, the plaintiffs focussed much to prove that the document - Ex.A2 is one vitiated by fraud and misrepresentation. However, the learned counsel for the appellants in AS.Nos.1049/2012 & 207/2013 submitted that the Release Deed under Ex.A2 is a void document as it is in contravention of Section 21 read with Section 51 of the Registration Act.Page 15 of 40
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16.Learned counsel appearing for the 3rd plaintiff/appellant in A.S.No.1049 of 2012, submitted that the Release Deed under Ex.A2 is invalid. By referring to Section 21 of Registration Act, 1908, the learned counsel submitted that the document specifically refers to the fact that the properties are not identifiable and that therefore, the document cannot be treated as a valid conveyance. Referring to Section 51 of the Registration Act and the fact that document Ex.A2 is kept in Book No.4, the learned counsel submitted that the defendants 1 and 2 have not only cheated the plaintiffs but also played fraud on registration. No doubt, under document Ex.A2, the property has not been described. However, it is mentioned as follows :
“c';fspy; 1 yf;fkpl;ltUf;F fztUk; 2
yf;fkpl;ltUf;Fk; v';fspy; 1. 2. 3
yf;fkpl;lth;fSf;Fk; jfg;gdhUkhd
ehr;rpKj;Jf;ft[zl
; h; kfd; itahg[hpf;ft[zl
; h;
vd;gth; brhj;J tpguk; Fwpg;gpl ,ayhj !; jhtu
$';fk brhj;Jfis mth; rk;ghjpj;J mDgtpj;J
te;j fle;j xU tUlj;jpd; nghJ ,d;l!;nll;lhf
,we;J ngha;tpl;lhh;/ mjd; gpwF i& ,we;J
nghd itahg[hpf;ft[zl
; Uf;F ghj;jpakhdJk;
brhj;J tpguk; Fwpg;gpl ,ayhj rfy !;jhtu
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A.S.Nos.189, 207 of 2013 & 1049 of 2012
$';fk brhj;JfspYk; c';fs; ,UtUf;Fk; v';fs;
K:tUf;Fk; ,e;J thhpR chpikr; rl;lg;go
bghJtpy; ghj;jpag;gl;Ls;sJ/ nkw;go
itahg;g[hpf;ft[zl
; h; ,we;J nghd gpwF mtUf;F
ghj;jpag;gl;l brhj;Jf;fis ghfk; bra;J
bfhs;shky; bghJthf itj;J
mDgtpj;Jf;bfhz;L tUfpnwhk;/ ,g;nghJ i&
nyl; itahg[hpf;ft[zl
; h; bgaUf;Fs;s brhj;J
tpguk; Fwpg;gpl ,ayhj rfy !;jhtu $';fk
brhj;Jf;fspd; nghpy; eh';fs; ,g;nghJ bghJ
ghf ghj;jpak; bfhz;lhoajpy; ,Ujug;ghUila
ed;ikiaf; fUjpa[k;. tPz; tptfhuk;
bra;af;TlhJ vd;Wk;. ey;y vz;zj;jpd; nghpYk;
ehsJ njjpapy; rpy g";rhaj;jhh;fSk; ek;
cwtpdh;fSk; bra;j igry;go ,we;J nghd
itahg[hf;ft[zl
; h; bgahpYs;s Fwpg;gpl ,ayhj
rfy !;jhtu $';fk brhj;Jf;fspd; nghpYk;
v';fs; K:tUf;Fk; cz;lhd bghJ ghf
ghj;jpaj;jpw;fhf ehsJ njjpapy; fPHf
; f
; z;l
rhl;rpfs; Kd;dpiyapy; c';fsplkpUe;J U:gha;
30.000?00 Kg;gjhapuk; U:gha; kl;Lk; buhf;fkha;g;
bgw;Wf; bfhz;L v';fSf;F cz;lhd bghJ ghf
ghj;jpaj;ij ,jd; K:yk; c';fSf;F tpLjiy
bra;J bfhLj;J tpl;nlhk;/”
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16.The submission of the learned counsel for the appellants/plaintiffs 1 and 3 are three fold. The first limb of their argument is that the Release Deed without describing the property is void since it is contrary to section 21 read with 51 of the Registration Act.
17.The learned counsel then submitted that the plaintiffs have specifically raised a ground in the plaint that the Release Deed is in respect of properties of the deceased Sri. Vaiyapuri Gounder, which cannot be described. In other words, the learned counsel submitted that the property which could be described was not the one which was conveyed under the Release Deed. To be more specific, the sum and substance of the arguments of the learned counsels appearing for plaintiffs 1 and 3 is that the property which was purchased by the parents of plaintiffs under Ex.A1 are identifiable and can be described with reference to boundaries, survey number, extent and therefore, the Release Deed cannot be construed as a document pertaining to the suit property which was purchased by their parents under Ex.A1. The third submission is that the document as a whole, is vitiated by fraud and misrepresentation.
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18.Let us now consider the arguments of the learned counsels appearing for the plaintiffs 1 and 3 and points [A], [B] and [C] framed.
19.Section 21 and Section 51 of the Registration Act read as follows:-
21. Description of property and maps or plans.— (1) No non-testamentary document relating to immovable property shall be accepted for registration unless it contains a description of such property sufficient to identify the same. (2) Houses in towns shall be described as situate on the north or other side of the street or road (which should be specified) to which they front, and by their existing and former occupancies, and by their numbers if the houses in such street or road are numbered. (3) Other houses and lands shall be described by their name, if any, and as being the territorial division in which they are situate, and by their superficial contents, the roads and other properties on to which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey. (4) No non-testamentary document containing a map or plan of any property comprised therein shall Page 19 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 be accepted for registration unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts.
51. Register-books to be kept in the several offices.— (1) The following books shall be kept in the several offices hereinafter named, namely:— A—In all registration offices— Book 1, “Register of non-testamentary documents relating to immovable property”.
Book 2, “Record of reasons for refusal to register”.
Book 3, “Register of wills and authorities to adopt”, and Book 4, “Miscellaneous Register”.
B—In the offices of Registrars— Book 5, “Register of deposits of wills”.
(2) In Book 1 shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89 which relate to immovable property, and are not wills.
(3) In Book 4 shall be entered all documents Page 20 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 registered under clauses (d) and (f) of section 18 which do not relate to immovable property.
(4) Nothing in this section shall be deemed to require more than one set of books where the office of the Registrar has been amalgamated with the office of a Sub-Registrar.
20.Though Section 21 specifically requires the documents of conveyance to contain the description of the property to identify it, there is no provision which would invalidate the document if the description of the property is not given. The requirement under Section 21 as per plain language indicates that description of property is mandatory and it is introduced, probably with an avowed object to serve public interest so that anyone can easily find out from the Register all the transactions in relation to particular property. However, absence of specific description of property in a document would not invalidate the conveyance or registration as there is no specific provision either in the Registration Act or in any other statute. Section 54 of the Registration Act defines 'sale' as a transfer of ownership in exchange for a price paid or promised or part paid and part promised. The Deed of Release involves transfer of ownership and in the present case, it is Page 21 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 for a consideration paid. The intention of the parties to the document can be seen from the recitals of the document where plaintiffs 1 and 3 have agreed to convey their right in all the properties of their father whether it is movable or immovable. The specific recitals would indicate in unambiguous terms that the document is in respect of all the properties of Vaiyapuri Gounder. Though the Deed of Sale is different from the Release Deed, the Release Deed is not defined under the Transfer of Property Act. If a person conveys interest either by a Release Deed or by a Deed of Exchange, the document of conveyance by any description if it conveys an interest in immovable property that will satisfy the definition of 'sale' and if it is in relation to immovable property of the value of Rs.100/-, it can be made only by a registered instrument. Since the document-Ex.A2 is registered, the transfer is complete by execution of the Release Deed upon registration.
21.Learned counsel appearing for the 1st plaintiff/appellant in A.S.No.207 of 2013, reiterated the same submissions of the learned counsel appearing for the 3rd plaintiff/appellant in A.S.No.1049 of 2012. In addition to that, the learned counsel relied upon a judgment of the Division Bench of Page 22 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 this Court in M/s.Veena Textiles Ltd. And another v. Authorised Officer and another reported in 2014 (5) CTC 209, wherein, this Court considered the scope of Section 28 of the Registration Act. After referring to Section 28 of the Registration Act, it is held as follows :
“14.A perusal of the above said provision of law would show that the document registered outside the State of Tamil Nadu in contravention of the provisions of clause (a) of Section 28 of the Registration Act shall be deemed to be null and void. Therefore, there cannot be any doubt that the deed of assignment dated 25.05.2011 is deemed to be null and void, since the same was made in violation of Section 28(b) of the Registration Act. Consequently, the first respondent, having not empowered to act legally against the petitioners in pursuant to the said deed of assignment dated 25.05.2011, was not entitled to initiate the proceedings before the second respondent under the SARFAESI Act, which has resulted in passing the impugned order by the second respondent under Section 14(3) of the SARFAESI Act.”
22.To understand the above judgment of the Division Bench, Section 28 is extracted hereunder :
Page 23 of 40
https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 “28.Place for registering documents relating to land – Save as in this part otherwise provided, every document mentioned in section 17, sub section (1), clauses (a), (b), (c),
(d) and (e), section 17, sub section (2) in so far as such documents affects immovable property and section 18, clauses
(a), (b), (c) and (cc) shall be presented for registration in the office of a Sub-Registrar within whose sub district the whole or some portion of the property to which such document relates is situate.
(a) every document mentioned in clauses (a), (b), (c),
(d) and (e) of sub-section (1) and sub-section (2) of section 17, in so far as such document affects immovable property and in clauses (a), (b), (c) and (cc) of section 18 shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the property to which such document relates is situate in the Union Territory of Pondicherry; and
(b) any document registered outside the Union Territory of Pondicherry in contravention of the provisions of clause (a) shall be deemed to be null and void.” [Vide Pondicherry Act 5 of 1999 (w.e.f. 4-5-1999)].”
23.Since there is specific provision which declares the nullity of Page 24 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 document registered outside the State of Tamil Nadu in contravention of Clause (a) of Section 28, the Division Bench has observed that the document registered in contravention of Section 28(a) of the Registration Act is null and void. The same principle cannot be applied in the present case. It is to be pointed out that, though there is a statutory prohibition to register a document without describing the property for the purpose of identification, the consequence of registration of a valid document has not been dealt with in any of the provisions of the Registration Act. The object of Registration Act is to serve public interest. The purpose of registration is to provide information to people who intend to deal with the property as to the nature and extent of rights of anyone in respect of the property. Therefore, the document which is registered in accordance with the Act is to put on record for the benefit of public so that people may see the record and enquire the particulars insofar as the lands which they may be concerned. In other words, the purpose and object of Registration Act is to prevent fraud and to protect innocent persons dealing with properties. In that context, this Court is of the view that a person who is a party to the document cannot challenge the same on the ground that the registration is not in accordance with Page 25 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 Section 21 of the Registration Act.
24.The other limb of the argument of the learned counsels appearing for plaintiffs 1 and 3 is that the Release Deed is not in respect of the property of Vaiyapuri Gounder. This technical plea itself is contrary to the first limb of the submission and the stand of plaintiffs that the document was executed believing that it was a Power of Attorney Deed required for the defendants to mobilise funds by mortgaging suit property. Nowhere in the pleading or in the evidence it is suggested by the plaintiffs that their father had acquired any other property which cannot be literally described to indicate the identity of property. From the recitals under Ex.A2 specific reference has been made to the acquisition of property by Vaiyapuri Gounder. The phrase ''rfy !;jhtu $';fk brhj;Jf;fspYk;
c';fs; ,UtUf;Fk; v';fs; K:tUf;Fk; ,e;J thupR chpikr; rl;lg;go bghJtpy; ghj;jpag;gl;Ls;sJ////'' clearly indicate that the Release Deed is in respect of all the properties of Sri Vaiyapuri Gounder including suit property as no other property which cannot be described is Page 26 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 proved to be available. The phrase ''..brhj;J tptuk; Fwpg;gpl ,ayhj////'' cannot be understood that Vaiyapuri Gounder had two sets of properties, one which can be described and another set, which cannot be described with particulars.
24.One of the prime submissions of the learned counsel appearing for the plaintiffs is that the document Ex.A2 is vitiated by fraud. Though the plea of misrepresentation is not found in the plaint, the actual pleading would only indicate that the plaintiffs wanted to establish that the document Ex.A2 was executed by the plaintiffs on the misrepresentation of defendants 1 and 2 that it was only a Power of Attorney Deed. Therefore, the question to be decided is whether the document is vitiated by misrepresentation. Though there is specific plea of misrepresentation found in the plaint, the plaintiffs ignored that the burden lies on them to prove that they signed the document without knowing the character of the document or the nature of transaction. May be in a case where the document is executed by a pardanashin lady or an illiterate, the burden lies on the person relying upon of the document obtained from such person to prove that the document was Page 27 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 executed by the illiterate or pardanashin lady knowing the contents thereof or that the document was executed by them knowing the nature of transaction. In the present case, the admitted case indicates that the plaintiffs, the daughters of 1st defendant, are literate. The document was attested by 1st plaintiff's husband, who was also examined as D.W.2. He has deposed to the fact that the plaintiffs voluntarily executed the document of release under Ex.A2. Even though attesting witness is not supposed to know the contents thereof, the evidence of D.W.2 will assume some significance in the present context where the wife of D.W.2 is questioning the document. The law is settled that the person executing the document who is capable of understanding the contents are bound by the recitals of the document unless it is proved that their consent was obtained by fraud or misrepresentation by consent evidence acceptable to Court. In the present case, it is pleaded that the document-Ex.A2 was executed when the family was in need of money to perform the marriage of the 3rd plaintiff. It is admitted in evidence that the marriage of 3rd plaintiff was only in the year 1990 and that the third plaintiff was just 18 years in 1986. Therefore, the case of plaintiffs is not probable. Since the plaintiffs have not given any Page 28 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 satisfactory evidence that there was misrepresentation, this Court is unable to accept the case of the plaintiffs that they signed the document believing that it was only a Power of Attorney Deed and required for the purpose of obtaining loan from the Bank.
25.The learned counsel relied upon a judgment of this Court in the case of Senthathikalai Pandiya Chinnathambiyar and others v. Varaguna Rama Pandia Chinnathambiar and another reported in 1954 0 AIR (Mad) 5, wherein, this Court has held as follows :
“This principle of renunciation follows, in my opinion, from the conception of the holding of joint family property by coparceners under Mitakshara. law. The very definition of 'vibhala' or partition in Mitakshara, Chapter 1, Section I, p1. 4 brings out clearly the fact that there is a common ownership of all the persons of the joint family property and the effect of the partition was only to particularise the right to specific portions of the aggregate of the property so as to create individual ownership. A partition is the "adjustment of the ownership of many persons in the aggregate wealth by assigning particular portions of the aggregate to a several Page 29 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 ownership." "Anckhaswamyam" is the ownership of many persons of the Dravyasamudayavishaya, i.e., the aggregate wealth, which implies that each is the owner of the whole Until there was a 'vibhaga' or partition by restricting his right to a particular portion of the property to be held by him in his individual right. Partition in a sense, therefore, is a restriction of the right of an individual to a specified portion of the property and an exclusion of the rights of the other coparceners in that portion which was allotted to a coparcener. So long therefore as common ownership continues accompanied, by joint possession, when one member walks out of the property renouncing or relinquishing his interest, the only effect is to reduce the number of coparceners entitled to share in the properly and increase the quantum of the right of the other coparceners.” By referring to the said judgment, the learned counsel submitted that the common ownership continues even after Release Deed. We are unable to countenance the argument as the above judgment if correctly understood puts an end to the right of co-owners upon relinquishment or release.
26.A reading of the said judgment only shows that the facts are entirely different and the proposition laid by this Court in the said judgment Page 30 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 is not applicable to the facts of the present case. The Division Bench of this Court in the said judgment was considering the effect of relinquishment of a coparcener. It was held by the Bench that the document of relinquishment would only bring about extinguishment of the interest of one coparcener. What follows is therefore, the relinquishment of any one member in respect of coparcenery would result in enlargement of the shares of other coparceners. In the present case, the Release Deed is for consideration. POINT No.[D]:-
27.Learned counsel referring to the recitals in Ex.A2-Release Deed submitted that the father was described as businessman whereas the 1 st defendant/mother was described as housewife. In this case, defendants have taken a specific stand that the mother/1st defendant was not only helping her husband but also was doing business by running the firewood shop. From the evidence, it is seen that the 1st defendant/mother was making valid contribution for the business. In the absence of any independent evidence to show that business of the father was independent and that he was the sole breadwinner of the family, this Court cannot hold that the properties are Page 31 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 purchased only by Vaiyapuri Gounder especially when the recitals under Ex.A1 does not indicate the source for purchasing the property came only from the father Vaiyapuri Gounder. The evidence of defendants 1 and 2 regarding the source for purchasing the property, cannot be ignored. Assuming for argument sake that the property was purchased out of the earnings of Vaiyapuri Gounder, there is a presumption under Section 3 of the Benami Transactions [Prohibition] Act, 2017, that the property is purchased for the benefit of the wife of Vaiyapuri Gounder.
28.Section 3 of the Benami Transactions [Prohibition] Act, 2017, may be usefully referred to:-
3.Prohibition of Benami Transactions:-
[1]No person shall enter into any benami transaction.
[2]Whoever enters into any benami transaction or holds any benami property on and after the date of the commencement of this Act, shall be punishable in accordance with the provisions contained in Chapter VIII.'' Therefore, the presumption under Section 3 of the Act also favours Page 32 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 defendants 1 and 2 to justify their case that property purchased under Ex.A1 belongs to both Vaiyapuri Gounder and his wife, the 1st defendant herein.
29.It is not the case that Vaiyapuri Gounder had ancestral properties and he was getting substantial income from those properties. Even before the Benami Transactions [Prohibition] Act, 2017, the Courts have held that the properties purchased by husband in the name of wife, should be considered as the property purchased by husband specifically for the benefit of his wife.
POINT No.[E]:-
30.It is to be seen that the plaintiffs nowhere in the plaint referred to the fact that the 3rd plaintiff was a minor at the time when the Release Deed under Ex.A2 was executed. However, in the course of argument, a submission was made on behalf of the 3rd plaintiff that she was a minor at the time of execution of Ex.A2 and therefore, the 3rd plaintiff is not competent to relinquish her share in the property. In other words, the submission of the learned counsel appearing for the 3rd plaintiff was that the Page 33 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 Release Deed is not binding on the 3rd plaintiff's 1/3rd share. A document, namely, Ex.A9 – Transfer Certificate was produced by plaintiffs to show that the Release Deed was executed when the 3 rd plaintiff was just one month short of 18 years.
31.Though there is no document in the plaint with regard to plea of minority based on Ex.A9-Transfer Certificate and this new plea was raised after the commencement of trial, the Trial Court has observed that this new plea can be considered as the defendants also have filed Ex.B28-Legal Heir Certificate issued by the Tahsildar. Noticing that the Transfer Certificate under Ex.A29 indicates that the Date of Birth of the 3rd plaintiff is 04.05.1963, the Trial Court relied upon the same and held that the 3rd plaintiff who was a minor at the time of Release Deed is not competent to transfer, cannot convey the right under Ex.A2 in favour of defendants. The age of the 3rd plaintiff in the plaint was given as 45 years and there is no plea to suggest that the 3rd plaintiff was a minor at the time of execution of Ex.A2. The law is well settled that no amount of evidence can be admitted without pleading and the judgment of Privy Council was relied upon and Page 34 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 approved subsequently in several precedents. When a plea that the 3 rd plaintiff was a minor at the time of execution of Ex.A2, is not raised in the plaint. the Trial Court ought not to have entertained the plea on the basis of Ex.A9. The observation of Trial Court that the new plea will not prejudice the rights of the defendants cannot be appreciated. It is inappropriate that is not a test to accept a new plea, especially when such new plea if raised, would lead to different relief in favour of the 3rd plaintiff. Secondly, the plaintiffs admit even in the plaint that the marriage arrangement of the 3rd plaintiff began in the year 1986 and that a bridegroom was about to be fixed. It is stated that the plaintiffs were made to execute the Release Deed dated 03.04.1986 so as to enable the defendants to mobilise funds for the marriage of the 3rd plaintiff. It is not likely that the plaintiffs and defendants would arrange the marriage of 3rd plaintiff when she was a minor. This Court cannot accept a marriage proposal when the 3rd plaintiff was just a minor when such marriage would be an illegal one. The evidenciary value of a Transfer Certificate has been considered by the Hon'ble Supreme Court in the case of Jabar Singh Vs. Dinesh and Another reported in 2010 [3] SCC 757. The Hon'ble Supreme Court has held as follows:- Page 35 of 40
https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 ''27. We are of the considered opinion that the High Court was not at all right in reversing the findings of the trial court in exercise of its revisional jurisdiction. The entry of date of birth of Respondent 1 in the admission form, the school records and transfer certificates did not satisfy the conditions laid down in Section 35 of the Evidence Act inasmuch as the entry was not in any public or official register and was not made either by a public servant in the discharge of his official duty or by any person in performance of a duty specially enjoined by the law of the country and therefore, the entry was not relevant under Section 35 of the Evidence Act for the purpose of determining the age of Respondent 1 at the time of commission of the alleged offence.''
32.It is also a principle that at the time of commencement of trial both parties should know the case of the other and one of the party cannot be put to surprise by production of a document during trial without specific Page 36 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 pleading. It is also brought to the notice of this Court that the document-
Ex.A9 was marked subject to objection. Having regard to the admitted position that this document-Ex.A9 regarding the date of birth of 3 rd plaintiff, is on the basis of information furnished and there is no supporting document to corroborate. This Court is unable to uphold the Trial Court is of the view that the 3rd plaintiff was a minor at the time of execution of Ex.A2. In this case, there is no pleading. It is also admitted that the 3 rd plaintiff has not examined herself as a witness. The Trial Court observed that the 3rd plaintiff is not competent to speak about her actual date of birth. When there is no plea in the plaint, it can be presumed that all the plaintiffs including the 3rd plaintiff believed that the 3rd plaintiff was a major on the date of Release Deed and therefore, the non-examination of the 3rd plaintiff as a witness is also a relevant factor not to accept the document-Ex.A9 without proper plea at the first instance in the plaint.
33.In view of the conclusions reached, this Court is unable to find merits in the submissions of the learned counsels appearing for plaintiffs 1 and 3 / appellants in AS.Nos.1049/2012 and 207/2013. For the conclusion Page 37 of 40 https://www.mhc.tn.gov.in/judis A.S.Nos.189, 207 of 2013 & 1049 of 2012 in relation to the 5th issue regarding minority of the 3rd plaintiff at the time of execution of Ex.A2, this Court for the reasons stated above, holds that the Release Deed was executed by the 3rd plaintiff when she was competent to transfer and therefore, the Release Deed is binding on her.
34.In the result, AS.Nos.1049/2012 and 207/2013 stand dismissed and AS.No.189/2013 stands allowed. The suit in OS.No.228/2008 stands dismissed in toto. No costs.
[SSSRJ] [AANJ]
16.12.2022
mkn/AP
Internet : Yes
Index : Yes / No
To
1.The I Additional District Judge,
Coimbatore.
2.The Section Officer,
VR Section, High Court,
Chennai.
Page 38 of 40
https://www.mhc.tn.gov.in/judis
A.S.Nos.189, 207 of 2013 & 1049 of 2012
S.S. SUNDAR, J.
and
A.A.NAKKIRAN, J.
mkn/AP
A.S.Nos.189, 207 of 2013
and 1049 of 2012
Page 39 of 40
https://www.mhc.tn.gov.in/judis
A.S.Nos.189, 207 of 2013 & 1049 of 2012
16.12.2022
Page 40 of 40
https://www.mhc.tn.gov.in/judis