Madras High Court
Ponnammal(Died) vs Murugesan(Died) on 2 July, 2018
Author: S.Baskaran
Bench: S.Baskaran
1
BEFORE THE MADURI BENCH OF MADRAS HIGH COURT
Judgment Reserved on : 21.12.2017
Judgment Pronounced on : 02.07.2018
CORAM:
THE HONOURABLE MR. JUSTICE S.BASKARAN
S.A.(MD)No.897 of 2010
1.Ponnammal(Died)
2.Lalitha
3.Saroja
(3rd appellant brought on record as LRs of deceased
sole appellant vide this Court by order dated
11.09.2014 made in MP(MD).1 of 2014
in SA(MD).No.897 of 2010 by ASJ) ... Appellants/Defendants
Vs.
1.Murugesan(died)
2.M.Manoharan
3.M.Rajkumar
4.M.Sampath Kumar
5.M.Rajammal
6 M.Ilavarasan
7.M.Vijayalakshmi
8.M.Devi
9.Masilamani ... Respondents/Appellants
This second appeal has been filed under Section 100 of CPC,
against the judgment and decree dated 05.04.2010 passed by the
learned Principal Subordinate Judge, Kumbakonam, made in A.S.No.
135 of 2006, reversing the Judgment and decree dated 23.12.2005
passed by the learned District Munsif, Valangaiman at Kumbakonam,
in O.S.No.329 of 2004.
http://www.judis.nic.in
2
For Appellants : Mr.Veerakathiravan, S.C.,
for Mr.C.Tesannethi
For Respondents : Mr.R.Subramanian for R1, R3
to R7
Mr.M.Surendher for R-2
Mr.S.Sivathilaker for R8
JUDGMENT
This second appeal arises out of the judgment and decree dated 05.04.2010 passed by the learned Principal Subordinate Judge, Kumbakonam, made in A.S.No.135 of 2006, reversing the Judgment and decree dated 23.12.2005 passed by the learned District Munsif, Valangaiman at Kumbakonam in O.S.No.329 of 2004.
2. Brief facts of the plaintiffs' case is as follows:-
The Suit Property originally belonged to the 1st defendant. On
03.03.1990, the 1st defendant borrowed a sum of Rs.20,000/- from the Plaintiff and executed a registered Mortgage deed. Since the defendant Ponnammal failed to discharge the mortgage, the Plaintiff filed O.S.62/1992 and obtained Preliminary as well as final decree against the said Ponnammal. Thereafter, the Plaintiff filed Execution Petition to execute the decree. Then the defendant agreed to sell the suit land to the Plaitniff and she executed the sale deed on 01.12.1995 http://www.judis.nic.in 3 in favour of Plaintiff. Accordingly, the Plaintiff has altered the revenue records and obtained Patta in his name. Even before purchase of suit property by the Plaitniff, the 2nd defebdabt was a tenant in the suit lands. The 1st defendant initiated proceedings against the 2nd defendant for collection of rent and for evicting him. After purchase, the Plaintiff issued notice to the 2nd defendant informing him about the sale of property to him. The 2nd defendant also filed a memo before the Revenue Court regarding the sale of property in favour of the Plaintiff and admitted the ownership of the Plaintiff in the counter filed by him in the proceedings in P.No.170 of 1995, before the Revenue Court, Kumbakonam. In O.S.No.592 of 1996 filed against the 2 nd defendant for arrears of rent, in the written statement filed by him, he has admitted the sale in favour of the Plaintiff. Both the defendants have no right to question the sale deed in favour of the Plaintiff. However, the 1st defendant executed a cancellation deed on 11.08.1997. The said act of the 1st defendant is not in accordance with law. The 2nd defendant is a lessee on suit land and as such, he is added as a party to the suit. On 12.09.1977, the 1st defendant executed a settlement deed in favour of the 2nd defendant without the knowledge of the Plaintiff. After execuitng the sale deed dated 01.12.1995, the 1st defendant has no right, title or interest in the title http://www.judis.nic.in 4 of the suit properties and as such, the cancellation deed dated 11.08.1997 and the settlement deed dated 12.09.1997 in favour fo the 2nd defendant are invalid and illegal documents. The defendants are trying to interfere with the plaintiff's possession and hence the suit for declaration of consequential injunction.
3.1. On the other hand, opposing the claim of the Plaintiff, the 1st defendant contends that she did not execute any document in favour of the Plaintiff on 01.12.1995. The possession of the property was not handed over to the Plaintiff and no consideration was received by her. The 1st defendant continues to be in possession of the property through her lessee, the 2nd defendant. The husband of the 1st defendant and father of the Plaintiff are family friends and the Plaintiff was taking care of the court proceedings of the 1st defendant. At that time, the 1st defendant used to sign the papers whenever the Plaintiff asked her to do so. The 1st defendant never executed sale deed in favour of the Plaintiff. The document created fraudulently against the Plaintiff is subsequently cancelled. Thus, the 1st defendant sought for dismissal of the suit.
http://www.judis.nic.in 5 3.2. While the 2nd defendant opposed the claim of the Plaintiff, admitted that the property belongs to the 1st defendant and the same is purchased by the Plaintiff now. He contended that he is a lessee under the Plaintiff and he is not a necessary party to the suit.
3.3. The 3rd defendant filed her written statement contending that there is no cause of action against her and she is impleaded subsequently to the suit. Both 2nd and 3rd defendants sought for dismissal of the suit.
4.1. After contest, the trial Court dismissed the suit. In the meantime, the plaintiff died. The LRs of the plaintiff preferred the appeal in A.S.No.135 of 2006 against the defendants, before the lower appellate Court. After contest, the lower appellate Court allowed the appeal in part by setting aside the decree and judgment of the trial Court and decreed the suit for declaration and injunction only and dismissed the suit against the second defendant with regard to arrears of rent. Aggrieved upon that the 1st and 3rd defendants Ponnammal and Lalitha preferred the present second appeal. During pendency of the second appeal, the 1st defendant Ponnammal died. Hence, the LRs of Ponnammal/1st defendant is impleaded as appellant 3. http://www.judis.nic.in 6 4.2. The following Substantial Questions of law are raised by the Appellants/Defendants in this appeal for consideration.
a) Is the first appellate Court is correct and justified in granting the relief in favour of a person who has played a fraud on an illiterate old woman, which warrants the entire transaction to the void document?
b) Is the first appellate Court is correct and justified in granting the decree in favour of a plaintiff who played a fraud on an illiterate woman who has repose confidence and trust in him, without adverting to the sound and settled principles as contemplated under law that too on the basis of his own evidence?
c) Is the first appellate Court is correct
and justified in granting a decree when the
defendant/appellant has given all the details
particularly necessary for establishing fraud
inconformity with the provisions of Order 6 Rule 4 of Civil Procedure Code?
d) Is the first appellate Court is correct and justified in granting a decree in favour of the plaintiff without framing the points for determination as contemplated under C.P.C?
e) Is the first appellate Court is correct and justified in granting a decree in favour of a http://www.judis.nic.in 7 person who played a fraud and without adverting to the provisions of Section 101 to 105 of the Evidence Act?
f) Is the first appellate Court is correct and justified in reversing the well considered judgment of the trial Court without adverting to the fundamental principles of law is that the plaintiff is to stand or fall on his own case and not on the weakness of the defendant's case?
5. According to the 1st defendant Ponnammal, she has not executed any sale deed on 01.12.1995 as alleged by the plaintiff. Subsequently, knowing about the fact that the plaintiff has created the sale deed fraudulently, 1st defendant cancelled the sale deed by another registered instrument Ex.B6 dated 11.08.1997. The learned counsel appearing for the appellants/defendants would submit that the first respondent (deceased plaintiff) Murugaesan taking advantage of the truth and faith reposed on him by the deceased first appellant/defendant an intestate deceived the defendant by getting her signatures under various pretexts and has transferred all her properties in his name by playing fraud on her and created all the documents. Thus Ex.A3 sale deed which was obtained fraudulently by the plaintiff was set aside by the deceased defendant by executing Ex.B.1 cancellation deed. As such, the trial Court, after elaborate trial, http://www.judis.nic.in 8 oral and documentary evidences, came to a correct conclusion and rightly dismissed the suit, but, the lower appellate Court without considering the arguments put forth by the appellants/defendants herein, decreed the suit without assigning any proper reason, which is against law. Hence, it is prayed that the findings of the lower appellate Court has to be set aside by allowing the appeal.
6. Per contra, the learned counsel appearing for the respondents/defendants would submit that the cancellation deed with regard to the sale deed is unknown to law. Hence, the first appellate Court has rightly concluded that the defendant has no right to execute the cancellation deed. Therefore, the lower appellate Court has allowed the appeal as per law. Hence, there is no infirmity in the Judgement and decree passed by the lower appellate Court. Therefore, this appeal has to be dismissed.
7. I have heard the rival contentions and perused the materials available on record.
8. On perusal of the records it is clear that the suit property absolutely belongs to one Ramasamy Chettiar through partition deed http://www.judis.nic.in 9 dated 13.05.1968 and after his demise, his legal heir, the 1st defendant Ponnammal is entitled to the property of said Ramasamy Chettiar. The 1st defendant Ponnammal executed mortgage deed dated 07.03.1990 with regard to the suit property in favour of the plaintiff Murugesan. Since the 1st defendant Ponnammal failed to discharge the mortgage, the plaintiff filed O.S.588/1997 and obtained preliminary and final decree as evidenced by Exs.A1 and A2. It is only by way of discharging the said mortgage, the 1st defendant Ponnammal agreed to sell the suit property to the plaintiff on 01.12.1995 for a sum of Rs.1,66,000/- and received the entire sale consideration including the payment received in the presence of Sub Registrar and executed Ex.A3 sale deed in favour of the plaintiff. So, the entire sale consideration was received by the 1st defendant Ponnammal and she executed a sale deed on 01.12.1995. Thereafter, the plaintiff came to know that on 11.08.1997, the 1st defendant Ponnammal executed Ex.A.11 cancellation deed to cancel Ex.A.3 sale deed which is not permissible. Hence, the plaintiff came forward with the suit seeking to declare the said cancellation is not valid and binding.
9. On the other hand, the defendants alleged that on http://www.judis.nic.in 10 01.12.1995 she has not executed any sale deed and she has not received any sale consideration from the plaintiff. The plaintiff, by playing fraud, cheated the defendant and obtained sale deed for the purpose of collecting rent from the tenants of the defendant's property and to file the case against the tenants as power deed, the 1st defendant Ponnammal signed papers and handed over the same to the plaintiff. The act of the plaintiff is only breach of trust. For executing power deed, the defendant has signed the papers and handed over the same to the plaintiff. The plaintiff by using the said papers, created the sale deed. So, she has cancelled the sale deed . This is the specific contention on the side of the defendant. Thus the defendants contend that plaintiff has no title or interest on the property and the suit is liable to be dismissed.
10. Now the point for consideration is as to whether the defendants are entitled to cancel the registered document Ex.A3 sale deed by executing another registered document Ex.A.11 cancellation deed and whether it will bind upon the plaintiff, has to be analysed.
11.The appellants/defendants vehemently contended that as sale deed was obtained in fraudulent manner, the 1st defendant is http://www.judis.nic.in 11 entitled to cancel the same. On the side of the appellants/defendants, the learned counsel relied upon the ruling reported in 1)1999 (II) CTC 481 in HAMEED GHOSH AND ANOTHER Vs. ABDUL HAYOOM AND ANOTHER; 2) 1998 – 3 – LAW WEEKLY, 199 in CHELLATHURAI AND 5 OTHERS Vs. PERUMAL NADAR; 3) 2004 (3) LAW WEEKLY 185 in M.GOPINATHAN AND OTHERS Vs. THE SUB REGISTRAR, GUDALUR, NILGIRIS DISTRICT AND OTHERS and 4) 2010 (1) LAW WEEKLY 680 1)A.C.BAKTHAN 2) VENKATESAN Vs. ROSI AMMAL. Out of those four judgments, except 1999 (2) CTC 481, other three citations are not applicable to the facts of this case. In the said decision, i.e. in 1999 (II) CTC 481 in HAMEED GHOSH AND ANOTHER Vs. ABDUL HAYOOM AND ANOTHER, it is held as follows:-
“Evidence Act, 1872, Sections 101 to 103 – Burden of proof – Execution of sale deed by ladies sought to be assailed by executants on ground that they believed it to be mortgage – Onus that executants had knowledge of documents and contents and executed with full knowledge of same lies on one who receives benefit under such document – Sale deed in instant case attested by two witnesses who ever according to executants had been helping them – Defence witness clearly establishing that http://www.judis.nic.in 12 attesting witnesses read over documents and explained contents to executants before executing same – Defendant had discharged his duty and plaintiff failed to examine attesting witness – Trial Court had cast burden of proof correctly on defendant and defendant had discharged his burden of proof.”
12. Thus the appellants/defendants contend that the burden is on the beneficiary to prove the execution of document by the executants with knowledge and clear mind. In the above said Ruling also it is held that the beneficiary of the document must establish that the executant had knowledge of document and its contents and he had executed the same with full knowledge. On relying upon the citation, the learned counsel appearing for the appellants would submit that the plaintiff who is the beneficiary has miserably failed to prove Ex.A.11 cancellation deed as stated in the above said citation. In such circumstances, the contention of the defendants is to be accepted. But the lower appellate Court, without considering these aspects, solely relied upon Ex.A.11 cancellation deed and entertained the appeal and the same is not correct. It is contended that the plaintiff came forward with the relief of declaration, and so, he has to establish that the sale deed obtained by him was true and genuine. However, http://www.judis.nic.in 13 the plaintiff has not examined the attestor of the sale deed. Without proving that Ex.A3 was executed in fair manner and knowingly by the defendant the execution of the said document cannot be upheld.
13. Per contra, contending that no sale deed was cancelled by subsequent deed, on the side of the respondents, the learned counsel relied upon the ruling reported in 2011 (2) CTC 1 in LATIF ESTATE LINE INDIA LTD., REP. BY ITS MANAGING DIRECTOR , MR.HABIB ABDUL LATIF, NO.14, TEMPLE ROAD, SECRETARIATE COLONY, KILPAUK, CHENNAI-10 Vs. HADEEJA AMMAL AND OTHERS, wherein it is held as follows:-
“Transfer of Property Act, 1882 (4 of 1882), Section 54 – Sale Whether Sale Deed once executed can be cancelled by Vendor either with or without consent – Sale means transfer of all rights, title and interest in properties which are possessed by transferor to another person namely transferee or purchaser - Transferor cannot retain any part of his interest in property so transferred sale would be complete once sale deed is executed and registered- Transfer of Property Act does not contain any provision for cancellation or annulling of Sale Deed – Registration Act also does not contain any provision for same – Once title to property is http://www.judis.nic.in 14 transferred by sale of property it cannot be divested by execution of Deed of Cancellation even with consent of parties – Proper Course would be for purchaser to re-convey property to seller.” In another ruling relied on by reported in 2010 (15) SCC 207 in THOTA GAMGA LAXMI AND ANOTHER Vs. GOVERNMENT OF ANDHRA PRADESH AND OTHERS, wherein it is held as follows:-
“Held, if vendor wants to cancel sale deed subsequently then he has to file a civil suit for cancellation or else he can ask vendee to sell back that property – Vendor cannot execute a cancellation deed unilaterally and such unilateral cancellation shall not be registered.”
14. On the side of the plaintiff, the plaintiff was examined as P.W.1 and one Kanakasabapathy was examined as P.W.2. Examination of one of the attestors is sufficient to prove the sale deed. However, in this case, only the scribe of the document is examined. It is pointed out that the evidence of P.Ws.1 and 2 with regard to Ex.A3 was not shattered by the defendants. In the case on hand, the plaintiff has not come forward with the suit for declaration with regard to Ex.A3 sale deed. He came forward with the suit for declaration with regard to Ex.A4-cancellation deed. Regarding the defence of the defendant as D.W.1, during the course of examination, she has stated http://www.judis.nic.in 15 that “ve;j njjpapy; gth; gj;jpuk;/ xU fpuag; gj;jpuk; 95?Yk; kw;bwhU fpua gj;jpuk; 96?Yk; vGjp bfhLj;Js;nsd; vd;why; ,Uf;Fk;/ thjp vd;id vg;nghJ vkhw;wptpl;lhh; vd;W vdf;f bjhpahJ/ Kjy; gj;jpuk; vGjpa gpd;dh; Vkhw;wptpl;lhh; vd;gij ,uz;lhtJ gj;jpuk; vGJtjw;F Kd;ng bjhpe;J bfhz;nld;/” In Ex.A9, the defendant Ponnammal has stated that the plaintiff sold the above lands on 01.12.1995 to one G.Murugesan. Ex.A9 is the copy of the plaint in O.S.No.592 of 1996. The above said suit was filed by the defendant Ponnammal against the second defendant Masilamani in that suit for arrears of rent. Now, in the above said suit, the defendant Ponnammal has admitted about the sale made by her to the plaintiff Murugesan. The above said admission is the substantial evidence.
15. As per the Apex Court verdict, which is reported in AIR 1977 Supreme Court 1724 in THIRU.JHON Vs. THE RETURNING OFFICER, the admission is substantial evidence, it has to be rebutted by the maker, till then the admission is valid. In this case, the defendant Ponnammal admitted that she has sold the property to one Murugesan, who is the plaintiff in the suit. But, she took defence to the effect that the sale deed was obtained by fraud. If that be so, she has to establish that the sale deed was obtained by fraud. To http://www.judis.nic.in 16 establish the plea of fraud, she ought to have approached the Court for cancellation of Sale Deed-Ex.A3. But, she has not done so. She has unilaterally cancelled the sale deed, by way of Ex.A4-cancellation deed, which is unknown to law. But, so far the defendant has not made any suit against the plaintiff. The unsustained stand of the defendant itself disprove her defence. So, regarding Ex.A3-sale deed is concerned, the plaintiff has proved his contention. Regarding Ex.A11 is concerned, according to the Full Bench decision and Apex Court judgment, it is unknown to law. The only way open to the defendant is to file civil suit for cancellation or to ask the vendee to sell back the property. The Tamil Nadu Registration Act also does not contain any provision for the same. Once title to the property is transferred by sale of the property, it cannot be divested by execution of Deed of Cancellation, even with consent of parties. Thus, the findings of the lower Appellate Court, with regard to Ex.A11 Cancellation Deed, which is based on the above said Ruling is appropriate, proper and does not support from any infirmity. For the above said reasons the substantiate question of law raised by the appellant/defendant is answered against them. Therefore, this Court comes to the conclusion that there is no merit in this appeal and the same is liable to be dismissed.
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16. In the result, the second appeal is dismissed. No costs. The Judgment and Decree dated 05.04.2010 made in A.S.No.135 of 2006 passed by the learned Principal Subordinate Judge, Kumbakonam, is hereby confirmed.
02.07.2018 rrg/nvsri To
1.The Principal Subordinate Judge, Kimbakonam.
2.The District Munsif Court, Valangaiman.
http://www.judis.nic.in 18 S.BASKARAN,J., rrg/vs Pre-Delivery Judgment in S.A.(MD)No.897 of 2010 02.07.2018 http://www.judis.nic.in 19 http://www.judis.nic.in