Madras High Court
Bharathi Ammal vs Jayaraman And Ors. on 13 July, 2001
Equivalent citations: (2001)3MLJ391
JUDGMENT K. Sampath, J.
1. The second appeal in S.A. No. 183 of 1990 arises out of A.S.No. 50 of 1989 on the file of the learned Second Additional District Judge, Pondicherry, which was against the decision of the learned First Additional Subordinate Judge at Pondicherry in O.S.No. 336 of 1981.
2. The second appeal in S.A.No. 184 of 1990 arises out of A.S.No. 48 of 1989 on the file of the learned Second Additional District Judge, Pondicherry, and it was against the decision of the learned Additional Subordinate Judge in O.S.No. 289 of 1981.
3. The appellant in both the second appeals is the same. She was the plaintiff in O.S.No. 289 of 1981 and the seventh defendant in O.S.No. 336 of 1981. The suit in O.S.No. 289 of 1981 was filed by her for cancellation of the agreement dated 9.1.1980 executed by one Manjini Naicker in favour of the defendant Jayaraman. The suit in O.S.No. 336 of 1981 was filed by Jayaraman against the legal representatives of Manjini Naicker as defendants 1 to 6 and the appellant herein as the seventh defendant for specific performance of the agreement for sale executed by Manjini Naicker on 9.12.1980 and in case, the defendants failed to execute the sale deed, the Court was to execute the sale deed on behalf of the defendants and for delivery of possession.
4. In the course of the judgment, the appellant will be referred to as the plaintiff and the first respondent as the defendant in the suit.
5. Pending appeal, Neelambal, wife of Manjini Naicker and the first defendant in O.S.No. 336 of 1981 died and defendants 2 to 6 were recorded as her legal representatives. They are respondents 2 to 6 in S.A.No. 183 of 1990.
6. The case of the plaintiff was that the suit property belonged to Manjini Naicker and Manjini Naicker sold the same to the plaintiff as on 29.12.1980 under a registered sale deed along with his sons. Pursuant to the sale, she also took possession and was residing in the property. She had also spent a sum of Rs. 10,000 for remodelling the building. Manjini Naicker also produced a nil encumbrance certificate on the date of the registration and the document was registered. The defendant claiming to have entered into an agreement with Manjini Naicker attempted to question the right of the plaintiff. The plaintiff verified and found that the defendant had manipulated a document as if a sale agreement was entered into on 9.12.1980 between him and Manjini Naicker. The stamp papers for the agreement stood in the names of different persons. The agreement was registered on 9.1.1981. The plaintiff came to know that Manjini Naicker was kidnapped by the defendant along with his relatives and he was compelled to sign before the Registrar and the sale agreement dated 9.12.1980 came to be created. It was not a genuine document. In these circumstances, the suit for declaration that the said sale agreement was null and void had to be filed.
7. The defendant came forward with a defence as follows:
Manjini Naicker entered into an agreement with the defendant on 9.12.1980. The sale price was fixed at Rs. 24,000. He received Rs. 12,000 on the date of the agreement as earnest money. As per the terms of the agreement, Manjini Naicker was to obtain necessary permission from the Competent Authority to register the sale deed and to produce nil encumbrance certificate and to deliver vacant possession of the schedule mentioned property to the defendant within two years. The agreement was duly registered on 8.1.1981. On 26.1.1981 Manjini Naicker issued a vexatious notice stating that he and his sons executed a sale deed in favour of the plaintiff for Rs. 20,000 and it was to be registered. The defendant sent a suitable reply. The plaintiff fraudulently got the sale deed registered in her favour on 3.2.1981 and prior to such registration, she did not obtain permission from the Competent Authority under the Urban Land Ceiling Act and encumbrance certificate till the date of execution of the sale deed. The sale effected by Manjini Naicker in favour of the plaintiff was not valid and binding on the defendant. The suit filed by the plaintiff was therefore to be dismissed.
8. The averments in his plaint were identical with the averments in the written statement in O.S.No. 289 of 1981 and the defence of the plaintiff was identical with the averments in her plaint in O.S.No. 289 of 1981.
9. The learned Second Additional Subordinate Judge, Pondicherry, framed the necessary issues in both the suits and there was a joint trial. On the side of the plaintiff, her husband was examined as P.W.1, Rajaraman, son of Manjini Naicker was examined as P. W.2. one Angappan was examined as P.W.3 and Pakkirisamy, Tahsildar, was examined as P.W.4. There were 13 documents marked on her side as Exs.A-1 to A-13. On the side of the defendant, the defendant alone was examined as D.W. 1 and Exs.B-1 to B-3 were marked.
10. The learned Subordinate Judge, on the pleadings, the oral and the documentary evidence, accepted the case of the plaintiff and held that the agreement set up by the defendant was an antedated document, that the sale deed in favour of the plaintiff was true and valid, that she was entitled to cancellation of the agreement set up by the defendant. The suit was decreed. The suit of the defendant was dismissed.
11. The defendant filed two appeals before the learned Second Additional District Judge, Pondicherry, who, by a common judgment dated 8.11.1989, allowed both the appeals, dismissed the suit O.S.No. 289 of 1981 filed by the appellant and decreed the other suit O.S.No. 336 of 1981 filed by the respondents. It is as against this, the present second appeals have been filed.
12. At the time of admission, the following substantial questions of law were raised for decision in the second appeals:
(1) Whether the lower Appellate Court is correct in granting the decree for specific performance of the agreement of sale dated 9.12.1980 without setting aside the registered sale deed dated 29.12.1980, Ex.A-27 and (2) Whether the lower appellate Court is correct in relying upon Ex.A-5, which was not proved by examining any of the attestors when especially the genuineness of the same was attacked by the appellant as a document forcibly brought into existence?
13. Mr. A.J. Abdul Razak, learned Counsel appearing for the appellant in both the appeals, made the following submissions:
The agreement set up by the defendant was only an agreement for sale, but the defendant had chosen to have it registered, so as to give it a colour of authenticity. The agreement had been incorporated on stamp papers purchased in the names of two different persons, one of Bahur and the other of Pondy proper and the one in the name of the person at Pondy, bore a seal antedated in November, 1980 and that the defendant had not explained as to why those stamp papers did not stand in his name. Again, the agreement provided a two year period for registration and there was absolutely no need to rush through registration, particularly when necessary permission from the Urban Land Ceiling Authorities had not been obtained. None of the witnesses to the document had been examined on the side of the defendant. The vendor and the vendee were close relations, the vendor being the senior paternal uncle of the purchaser and there was not even any necessity to have an agreement. The suit by the defendant also came to be filed before the expiry of two years fixed under the agreement. There was also no averment of readiness and willingness in the plaint in the specific performance suit filed by the defendant. The learned Counsel sought to make a point that the lower Appellate Court had found fault with the appellant for not examining the persons, who had kidnapped Manjini Naicker.
14. Mr. K. Chandrasekaran, learned Counsel for the defendant, submitted that absolutely nothing could be said against the agreement executed in favour of the defendant. There was no prohibition that stamp papers standing in somebodyelse's name could not be used for documents. The learned Counsel also submitted that absolutely no material had been produced and no evidence let in to show the alleged kidnapping or the lodging of a complaint by the plaintiff's vendor or his son. The learned Counsel submitted that the lower appellate Court had as a final Court of fact, gone into the whole question and come to a definite conclusion that the agreement was not antedated and it should prevail over the later sale deed in favour of the appellant.
15. I have carefully gone through the pleadings, the oral and the documentary evidence and the judgments of the Courts below. I am of the clear view that the judgment of the lower appellate Court cannot at all be sustained. The learned Second Additional District Judge has put the cart before the horse in upholding the agreement in favour of the defendant alleged to have been executed on 9.12.1980. The agreement, marked as Ex.B-1 in the case, the registration copy of which is Ex.A-9. has been engrossed on two stamp papers. The first stamp paper is of the value of Rs. 2. It stands in the name of one V. Natesan, Bahour. It had been purchased on 9.12.1980 from one V. Ramachandran, Stamp Vendor, Bahour. The second stamp paper stands in the name of one A. Banu of Pondy. The stamp vendor's name is not clearly given. The denomination is 50 paise. On the side of the defendant, absolutely no explanation has been given as to why the stamp papers were in the names of third parties. No other witness was examined. The persons in whose names the stamp papers stand had not been examined. The Stamp Vendors had not also been examined. It is not the case of the defendant that on the date on which the agreement was alleged to have been entered into, stamps were not available in Pondicherry proper. It was incumbent on the different to have satisfactorily detailed the circumstances under which he utilised the stamps in the names of third parties and explained as to why he did that. The learned Second Additional District Judge starts on the premise that Ex.B-1 is a genuine document and proceeds to find fault with the plaintiff as having got her sale deed executed after the date of Ex.B-1 agreement. The whole judgment of the learned District Judge on this aspect smacks of special pleadings for the defendant. It is rather strange for the learned District Judge to observe that the person who, it was alleged by the plaintiff, as having kidnapped Manjini Naicker, had not been examined on the side of the plaintiff.
16. It is worthwhile to refer to the relevant portion of the judgment of the appellate Court in this regard:
In paragraph 15: The 7th defendant in O.S.No. 336 of 1981 (the plaintiff in O.S.No. 289 of 1981) in her written statement refers to one Ethiraj, a relative of Manjini Naicker, and also refers to one relative of Manjini Naicker in her plaint in O.S.No. 289 of 1981 as the person who kidnapped and with whose help the defendant in O.S.No. 189 of 1981 has obtained signatures of the said vendor by keeping him in confinement. But neither the relative nor the said Ethiraj has been examined as witness in proof of the alleged incident. Even the persons who figured as defendants 2 and 3 in O.S.No. 336 of 1981 were not mentioned as witnesses to the alleged incident in the suit filed by the plain-tiff in O.S.No. 289 of 1981. This only shows that allegation in the written statement in O.S.No. 336 of 1981 by the defendants that defendants 2 and 3 were witnesses to the removal of Manjini Naicker from entering the Registrar's office and was later confined by one Ethiraj in his house is only an afterthought and improvement only to overcome the lapses, short-comings and lacuna in the suit filed earlier by the plaintiff in O.S.No. 289 of 1981, since, admittedly, the suit in O.S.No. 336 of 1981 is much later and subsequent to the suit in O.S.No. 289 of 1981.
There is neither logic nor law in the observations of the learned District Judge. This blinkered approach has clouded his vision in appreciating the materials on record and the evidence on the side of the plaintiff in a proper perspective.
17. Dealing with Ex.B-1 agreement the learned District Judge makes strange observations in paragraph 16:
A perusal of the document Ex.B-1 the agreement for sale, would show that the said document was executed as early as 9.12.1980 and a perusal of Ex.A-9 sale deed would show that the same was executed only on 29.12.1980. It could be further seen that Ex.B-1 was presented before the office of the Registrar on 8.1.1981 and registered on 9.1.1981. But, Ex.A-9 was presented before the Registrar on 2.2.1981 and registered on 3.2.1981. P.W.1 admits in his chief-examination that the property was purchased on 29.12.1980, but subsequently, he changes his version and says that the sale deed in favour of his wife is earlier to the agreement for sale in favour of the appellant. The testimony of P.W.1 is contrary to the recitals in the written documents Ex.B-1 and Ex.A-9, which version cannot be accepted as true.
18. The learned District Judge has clearly misconstrued the documents and the oral evidence. What P.W.1 had said was that after the execution of the sale deed in favour of his wife, the plaintiff in the suit, Ex.B-1 agreement was brought about antedating the same. I am unable to see any inconsistencies either in the pleadings or in the oral evidence of P.W.1. The learned District Judge has made still stranger observations in the course of his judgment:
No reason has been given as to why the vendor Manjini Naicker did not get permission from the competent authority or for not producing the encumbrance certificate as per the terms of the contract when he was able to get permission in the case of the purchaser Barathiammal and finish the sale transaction with such rapidity.
19. I am unable to make any sense out of these observations. Manjini Naicker had executed a sale deed in favour of the plaintiff. It was incumbent on him to obtain permission from the competent authorities for completing registration formalities. When the case established on evidence was that Manjini Naicker had been kidnapped - this is spoken to by his son P.W.2 and kept in illegal custody by the defendant when something had been obtained against his sale under Ex.B-1, it was understandable as to why he should at all bother to get any clearance for completing any sale in favour of the defendant. The reasoning and the logic of the learned District Judge are baffling. Mere registration of Ex.B-1 does not make an antedated document to prevail over a regularly executed document, namely Ex.A-2 in favour of the plaintiff invalid. The learned District Judge was in error in accepting Ex.B-1 as a true document coming into existence on the date it bears.
20. It has already been noticed that except for the defendant, nobody else was examined on his side. No witness to prove passing of consideration was produced before Court. I have absolutely no hesitation in holding that Ex.B-1 is an antedated document and it will not prevail over Ex.A-2 sale deed in favour of the plaintiff. The finding by the learned District Judge is vitiated by application of wrong facts and based on conjectures and surmises and wholly unjsutified. The decision of the lower Appellate Court is contrary to law. A finding has been reached on the basis of unimportant and irrelevant facts. The lower Appellate Court has misapplied principles of law and has been influenced by inconsequential matters. As the findings on facts by the lower appellate Court are vitiated by non-consideration of relevant evidence and the approach has been essentially erroneous. I am obliged to interfere under Section 100, C.P.C.
21. Consequently, all the substantial questions of law are answered in favour of the appellant in both the second appeals. The second appeals will stand allowed with costs of Rs. 3,000 in each of the appeals. The judgments and the decree of the lower appellate Court are not set aside and those of the trial Court restored.