Madras High Court
Sivakumar vs Arasu Rathinam on 25 February, 2013
Second Appeal No.1499 of 2002
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on 09.12.2019
Delivered on 16.12.2019
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
Second Appeal No.1499 of 2002
1.Sivakumar
2.Subbulakshmi @ Pappa : Appellants
Vs.
1.Arasu Rathinam
2.N.S.V.Nagappan
3.N.A.R.Nagaraj (died)
[The death of R-3 on 16.11.2004 is recorded,
vide order dated 25.02.2013]
4.Palaniappan
5.Dr.Murugaraj : Respondents
PRAYER: Second Appeal is filed under Section 100 of the Code of
Civil Procedure against the judgment and decree of the learned
Additional District Judge -cum- Chief Judicial Magistrate,
Sivaganga, dated 11.06.2002 in A.S.No.89 of 2001, reversing the
judgment and decree of the learned Subordinate Judge, Sivaganga,
dated 20.06.2001 in O.S.No.69 of 1998.
1/24
http://www.judis.nic.in
Second Appeal No.1499 of 2002
For Appellants : Mr.R.Nandakumar,
For Mr.B.Prahalad Ravi
For Respondent No.1 : Mr.M.S.Balasubramania Iyer
For Respondents 2,4&5 : No Appearance
For Respondent No.3 : Died
********
JUDGMENT
*********** Aggrieved over the judgment of the first Appellate Court, reversing the finding of the Trial Court, the present Second Appeal is filed.
2. The suit has been filed for declaration and for recovery of possession and also for mesne profits.
3. For the sake of convenience, the parties are referred to herein, as per their rank before the Trial Court.
4. The facts leading to the filing of the suit are as follows:
One Saradhambal was entitled to the suit property by virtue of the judgment and decree in O.S.No.78 of 1972. The plaintiff has purchased the property from Saradhambal on 2/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 21.02.1981 under Ex.A.6 for a consideration of Rs.46,000/-. Before that, Saradhambal said to have executed a settlement deed dated 09.01.1979 in respect of the suit property to one Subbulakshmi alias Pappa (second defendant). The first defendant said to have purchased the property from Subbulakshmi alias Pappa under a registered sale deed dated 27.02.1980. After purchase, the first defendant has filed execution proceedings in E.P.No.28 of 1980 in O.S.No.78 of 1972. In that proceedings, the plaintiff and the tenants were added as respondents. In the meantime, Saradhambal executed a revocation deed on 31.01.1981 under Ex.A.18, cancelling the alleged settlement deed. In the meanwhile, the execution petition filed by the first defendant was allowed by the Execution Court, as against which, appeal was filed and order was set aside by a learned Single Judge of this Court, against which, LPA.No.65 of 1988 was filed by the first defendant before the Division Bench of this Court. However, in the above order, this Court directed re-delivery of the suit property by the plaintiff to the first defendant. Accordingly, property was re-delivered on 11.12.1996 and re-delivery was effected in symbolic manner.
However, this Court directed the plaintiff to approach the Civil Court for remedy. Hence, the plaintiff filed the suit. 3/24 http://www.judis.nic.in Second Appeal No.1499 of 2002
5. It is the case of the plaintiff that the alleged settlement deed was never executed by Saradhambal in favour of the second defendant. At the relevant point of time, she was in Madras to conduct the proceedings in S.A.No.293 of 1975 and was staying in the house of her grand daughter Vasantha at Madras. The said Vasantha's husband is one Sathiyamoorthi. He has obtained the left thumb impression of the said Saradhambal in several blank papers under the premise that they were required for executing a power deed in his favour. Therefore, settlement deed is a created one. Hence, any sale on the basis of the settlement deed is also not valid. Hence, the suit for declaration and other consequential reliefs.
6. The first defendant has filed a written statement to the effect that the suit is not maintainable and abuse of process of law. The plaintiff, in fact, wants to re-agitate the entire matter once again. The suit is also barred by res judicata. Saradhambal has no right to execute the sale deed in favour of the plaintiff on 21.02.1981. She has already executed a registered settlement deed dated 09.01.1979 in favour of her grandson's wife 4/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 Subbulakshmi alias Pappa. The said Subbulakshmi alias Pappa, in turn, executed a sale deed in favour of the first defendant on 27.02.1980 for a sum of Rs.40,000/-. The alleged constructive delivery dated 05.04.1982 is also not valid, which has been fraudulently obtained by the plaintiff by suppressing the pendency of E.P.No.28 of 1980 and E.P.No.2 of 1982. Saradhambal has no legal right to execute the cancellation deed revoking the settlement dated 09.01.1979. Settlement deed was executed out of own volition of Saradhambal. Thereafter, the first defendant has purchased the property for valid consideration. Hence, he prayed for dismissal of the suit.
7. The defendants 3 to 6 contended that they are the tenants under the plaintiff. They were made as formal parties in the suit.
8. The Trial Court has framed the following issues:
"(i) Whether the settlement deed dated
09.01.1979 in favour of the second defendant by Saradhambal is true and valid?
5/24 http://www.judis.nic.in Second Appeal No.1499 of 2002
(ii) Whether the plaintiff is entitled to the decree as prayed for? and
(iii) To what relief?"
9. Based on the above pleadings, on the side of the plaintiff, three witnesses were examined as P.W.1 to P.W.3 and 35 documents were marked as Exs.A.1 to A.35. On the side of the defendants, D.W.1 to D.W.4 were examined and Exs.B.1 to B.41 were marked.
10. The Trial Court dismissed the suit. Whereas, on appeal, the first Appellate Court allowed the appeal and granted reliefs in favour of the plaintiff, as against which, the present Second Appeal is filed by the first and second defendants.
11. The following substantial questions of law have been framed while admitting the Second Appeal:
"(1) Whether the lower appellate Court is right in placing the burden of proof on the appellants in the instant case and whether the burden is not on the first respondent to prove the 6/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 case of misrepresentation and fraud as pleaded in the plaint?
(2) Whether the rejection of Ex.B.10, a registered instrument in the manner done when one attesting witness has been examined and the deposition of the other attesting witness in earlier proceedings has been received in evidence is legal and proper?
(3) Whether the rejection by the appellate Court of the evidence of the other attesting witness Ex.B.41 received by the trial Court after due enquiry and on the finding that a case has been made out under Section 33 of the Evidence Act is legal and proper?"
12. It is the contention of the learned counsel appearing for the first and second defendants (appellants) that originally the property was owned by one Saradhambal. Under Ex.B.10, she has executed a settlement deed in favour of the second defendant in the suit. The second defendant under Ex.B.11 dated 27.02.1980, sold the suit property to the first defendant for valid consideration. Such 7/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 being the position, the second defendant has become absolute owner on the date of settlement itself and the first defendant, by virtue of his purchase, has become owner of the property. Whereas, the plaintiff claims to have purchased the property in the year 1981, i.e., after Ex.B.10 and no title whatsoever. The contention of the plaintiff is that the settlement deed was obtained by fraud. Undue influence has not been established. The said Saradhambal was very much alive at the relevant point of time, but, she has not been examined. Therefore, it is his contention that the settlement deed cancelled unilaterally. The burden lies on the party, who seeks to avoid a document, to show that the document is fraudulently obtained. Saradhambal has not been examined before the Trial Court and the entire burden was shifted on the defendants to prove the settlement deed. The alleged undue influence and fraud have not been proved by the plaintiff. Hence, it is his contention that once the settlement deed has been validly proved, the judgment of the first Appellate Court setting aside the well considered judgment of the Trial Court, is not based on the proper appreciation of evidence and in fact, one of the attestors of the settlement deed was properly examined and another attestor has already given evidence before the previous proceedings between the parties and 8/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 his evidence also ought to have been considered. The first Appellate Court has not taken into consideration all those things. Hence, the Trial Court judgment has to be sustained and the first Appellate Court judgment is to be set aside. In support of the contention, the learned counsel for the first and second defendants has relied on the judgment reported in 2002(3) MLJ 506 [Perumal v. Rajamanickam].
13. Whereas, it is the contention of the learned counsel appearing for the first respondent (plaintiff) that the alleged settlement deed is obtained by fraudulently and the stamp papers have been purchased in different places and the document was also registered in different place. The said Saradhambal is, admittedly, rustic and illiterate woman. The burden of proving the good faith of transaction has not been discharged by the person who is seeking to take advantage of the document. Some of the stamp papers were purchased on 08.01.1979 at Periyakulam. Some of the stamp papers were purchased on 10.10.1978 at Thiruppathur and the settlement deed was registered in different Sub-Registrar's Office outside the place where Saradhambal was residing. The evidence of attesting witness clearly indicates that at the time of executing 9/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 the settlement deed, the settlor was not present and the evidence of D.W.2 and D.W.3 are contradictory in nature and the contents of the documents have not been properly explained to the illiterate woman. It is the main contention of the plaintiff that the settlement deed was registered under the pretext of obtaining the power of attorney in order to conduct the previous case pending between Saradhambal and others. Only on such misrepresentation, thumb impression of Saradhambal was obtained. The evidence available on record in this regard has clearly probabilised the above stand. Hence, it is contended that the first Appellate Court has analysed the entire evidence properly and arrived at a correct conclusion, which needs no interference. Hence, he prayed for dismissal of appeal.
14. In support of the contention, the learned counsel for the plaintiff has relied on the following judgments:
(i) Jugalkishore v. Raw Cotton Co. [AIR 1955 SC 376]; and
(ii) Bhagwat v. Kasturi [AIR 1974 Madhya Pradesh 26] 10/24 http://www.judis.nic.in Second Appeal No.1499 of 2002
15. I have perused the entire materials.
16. The suit property was originally owned by one Saradhambal. She has acquired the right pursuant to the decree and judgment in O.S.No.78 of 1972 under Ex.A.1. It is also admitted that in execution proceedings filed by her, except the suit property, Saradhambal got possession of other properties. The plaintiff claims to have purchased the property under Ex.A.6 dated 21.02.1981. Whereas, the first defendant claims title on the basis of Ex.B.10, the settlement deed dated 09.01.1979 said to have been executed by Saradhambal in favour of the second defendant. From the second defendant, the first defendant has claimed title under Ex.B.11-sale deed dated 27.02.1980. It is also not in dispute that after purchase of the property, the first defendant has filed execution proceedings in E.P.No.28 of 1980 in O.S.No.78 of 1972 to take delivery of the suit property. In the above execution proceedings, delivery was ordered in E.A.No.2 of 1986 on 04.08.1987. Thereafter, an appeal was filed before this Court in A.A.O.No.741 of 1987. The appeal was allowed by the learned Single Judge of this Court on 17.04.1988, as against which, 11/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 L.P.A.No.65 of 1988 was preferred before the Division Bench. In the aforesaid LPA, this Court directed the plaintiff to re-deliver the property to the first defendant. However, while allowing the LPA, a Division Bench of this Court, under Ex.B.3 (copy of judgment), granted liberty to the plaintiff to file a separate suit, if he is so desired to establish his right and seek recovery of possession of the property from the defendants. Based on such liberty granted by this Court in L.P.A.No.65 of 1988, the present suit was filed for declaration and for recovery of possession.
17. In the previous proceedings, namely L.P.A.No.65 of 1988, though the point for determination was framed as to the validity of the settlement deed dated 09.01.1979, this Court has not decided the above issue rather granted liberty to the plaintiff herein to file a fresh suit to establish his title. Therefore, the seminal issue in this appeal is with regard to the validity of the sale deed relied upon by the plaintiff under Ex.A.6 and the settlement deed relied upon by the second defendant under Ex.B.10 and the sale deed in favour of the first defendant-Ex.B.11. The title of Saradhambal has not been disputed. The plaintiff claims title on the basis of Ex.A.6 sale deed executed by Saradhambal for 12/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 consideration of Rs.46,000/-. Whereas, the first defendant claims to have purchased the property from the second defendant, to whom the said Saradhambal has executed a settlement deed in the year 1979 itself prior to Ex.A.6. Ex.B.10-settlement deed, when carefully perused, the same indicated that Saradhambal said to have executed the settlement in favour of the second defendant Subbulakshmi alias Pappa, who is said to be the wife of one of the grandsons of the said Saradhambal, despite other children are very much alive. The second defendant, wife of one of the grandchildren, was said to have chosen by Saradhambal to settle her property. A perusal of Ex.B.10 makes it clear that the thumb impression of Saradhambal was found therein. The same makes it clear that Saradhambal is a rustic and illiterate villager. Ex.A.18- revocation deed executed by Saradhambal indicates that one Sathiyamoorthi, husband of one of the grandchildren has obtained thumb impressions as if power of attorney is required to conduct the previous appeal in S.A.No.293 of 1975. Only in this context, she put her thumb impression and she never intended to execute any settlement. Therefore, since the document was registered as settlement, she wanted to cancel it, accordingly, registered the cancellation deed under Ex.A.18. No doubt, once a settlement is 13/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 executed, unilateral cancellation is not permitted. The party, who seeks to avoid the document, has to prove the alleged fraud etc. But, whereas, it is the specific case of Saradhambal under Ex.A.18, she never executed any settlement. Whereas, thumb impression was obtained under the premise of getting power of attorney to conduct the previous case. She did not have any intention to execute the settlement. Such stand was taken by the rustic and illiterate woman. The burden lies on the person who takes the benefit of the document to prove that the document is registered properly.
18. It is also well settled that where fraud, misrepresentation, or undue influence is alleged by a party in a suit, normally, the burden is on the person who alleges it to prove the same. But, when a person is in a fiduciary relationship and in a position of active confidence, in regard to an illiterate woman, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person who is in dominant position, he has to prove good faith and fair play in the transaction and that it is a genuine and bona fide one. Similarly, in the case of deeds and powers executed by Pardanashin ladies, it is requisite, that those 14/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 who rely upon them should satisfy the Court that the contents had been properly explained to, and understood by those who executed them. Now, the same benefit has also been extended to the rustic/illiterate village woman as that of Pardanashin ladies. In such a case, heavy burden of proof lies upon the persons who take advantage of the document executed by illiterate aged woman.
19. It is the case of the second defendant to the effect that Saradhambal had to conduct the appeal relating to the case in O.S.No.78 of 1972 in the High Court, Madras and the second defendant, who is the wife of the grandson of Saradhambal by name Jeyaraman, was helping her financially to conduct her case. The second defendant was examined in this regard as D.W.3. She herself has stated that she has given 50 sovereigns of gold jewels to conduct the case and in consideration of the kindness shown by the second defendant, the settlement deed was executed in favour of the second defendant under Ex.B.10. The very admission of the settlee in her evidence when she was examined as D.W.3 clearly indicates that herself and her husband were under influence over Saradhambal while conducting the earlier appeals before the High Court and there were financial helps also given to the said 15/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 Saradhambal. This fact clearly indicates that the second defendant and her husband were in active confidence and in a position to dominate the Will of the said Saradhambal. Such being a position, heavy burden lies on them to show that the settlement deed was actually executed by Saradhambal on her own volition.
20. In the above background, now, it has to be seen whether the defendants discharged their burden in proving the settlement deed.
21. The evidence of D.W.3 settlee, in the chief-examination itself, clearly indicates that only towards the expenses spent by the settlee and her husband, Saradhambal has agreed to settle the property after discussing with another grand daughter Vasantha. However, she did not return from Chennai. Thereafter, D.W.3 and her uncle went to Chennai. At that time, Saradhambal has informed that she will execute the settlement during her visit at Periyakulam during pongal time. However, she did not come to village at that time. Thereafter only, settlement was prepared at Melur and they went to Chennai and obtained thumb impression, before that, contents of document explained to Saradhambal by D.W.3's brother 16/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 and the husband of Vasantha by name Sathiyamoorthi. At that time, D.W.3, her uncle Ramachandran, her brother Sathiyamoorthi and his wife Vasantha were present. Thereafter, her uncle and the said Sathiyamoorthi attested the document and the same was registered at Chennai on the same day. The very evidence of D.W.3 itself clearly indicates that the beneficiary, viz., the second defendant has taken active part along with her brother and uncle in getting a settlement deed and the settlement deed was registered. It is the evidence of D.W.3 that settlement was registered at Chennai on the same day. Ex.B.10 also clearly indicates that the settlement deed was registered at North Chennai, when the property is situated within the jurisdiction of this Court. The evidence of D.W.3 itself clearly indicates that the deed was prepared at Melur and only thumb impression was obtained at Chennai. Above facts indicate that settlement deed was obtained only towards the consideration of spending expenditure towards her previous cases. D.W.2, one of the attesting witnesses, namely Ramachandran, the uncle of D.W.3, was examined to prove the settlement. His evidence clearly indicates that stamp papers for Ex.B.10 were purchased by him and two of the stamp papers were purchased in the year 1978 itself. Other stamp papers were purchased on 08.01.1979. If really the 17/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 parties are intended to execute the settlement, normal human conduct to purchase the stamp papers may be on the same day or few days before the date of settlement. The settlement was executed on 09.01.1979 and seven papers were purchased on 08.01.1979 and the remaining were purchased on 10.10.1978. Admittedly, Saradhambal is from the different village, namely Periyakulam, but the stamp papers were purchased at Thiruppathur. The evidence of D.W.2 indicates that at the time of writing Ex.B.10 at Melur, Saradhambal was in Chennai and she was ailing and she has also admitted, while writing the settlement, Saradhambal was not present. Only D.W.2 has given instructions to write Ex.B.10 at Melur. After 15 days, Saradhambal put her thumb impression at Chennai. Though she is illiterate, Sathiyamoorthi's wife one Vasantha has explained the contents to Saradhambal.
22. Whereas, D.W.3, in her evidence, has stated that only Sathiyamoorthi has explained. This version of D.W.2 and D.W.3 clearly creates a serious doubt about the execution of the settlement deed. D.W.2 is none other than the maternal uncle of D.W.3, who is the beneficiary under Ex.B.10. The first Appellate Court clearly analyzed the facts that even after the alleged 18/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 settlement, the second defendant has never received any rent from the tenants. Only Saradhambal was receiving the rent under Exs.A. 32 and A.33.
23. Much emphasis was made by the appellants' counsel that though Saradhambal was not examined, during the earlier execution proceedings, she has given an affidavit under Ex.B.40. In Ex.B.40, there are lot of interpolations and the first Appellate Court factually found that the affidavit contained the interpolation of E.P.No.28 of 1980, but 'E.P.No.18/1978' has been inserted. Whereas, E.P.No.28 of 1980 was filed only on 30.04.1980 and it was numbered on 03.05.1980. Such being a position, Saradhambal filing an affidavit dated 02.04.1980 is highly improbable. Thus, the same was rightly disbelieved by the first Appellate Court. Though D.W.4 one Advocate was examined to show that the affidavit was given by Saradhambal, it is to be noted that D.W.4 is only a neighbour of Saradhambal. Such being a position, the advocate going to the client's office and getting an affidavit is also highly improbable and he has also admitted that correction in Ex.B.40 has not been made by him. Therefore, the first Appellate Court has correctly held that possibility of creating Ex.B.10 cannot be ruled out.
19/24 http://www.judis.nic.in Second Appeal No.1499 of 2002
24. It is the another contention of the learned counsel for the appellants that another attesting witness was already examined in execution proceedings in E.A.No.2 of 1986 and he has spoken about the attestation of the document Ex.B.10. He was subjected to cross-examination by the plaintiff. Now, the said witness is residing in the United States of America. Therefore, his evidence given in the previous proceedings is certainly admissible under Section 33 of the Indian Evidence Act. No doubt, Ex.B.41 was filed to show that another attesting witness Sathiyamoorthi, was examined to prove the attestation and cross-examined by the adverse party. Section 33 enumerates the conditions under which the evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant in a subsequent judicial proceeding, or a later stage of the same proceeding, but, only with the following conditions:
(a) when the witness is dead;
(b) when he cannot be found;
(c) when he is incapable of giving evidence;
(d) when he is kept out of the way by the adverse party;
and 20/24 http://www.judis.nic.in Second Appeal No.1499 of 2002
(e) when his presence cannot be obtained without an amount of delay or expense which the court considers unreasonable.
25. To contend that witness presence cannot be obtained without delay and expense, it has to be proved by the party, who seeks to rely upon the statements of such witness, to show that the witness cannot be procured. There must be some evidence showing inability of procuring the attendance of the witness before the Court, which considers, the delay and expense involved in securing the presence of the witness is unreasonable. Only on such evidence, the Court can take such previous evidence as relevant. Only when all reasonable efforts to secure the attendance of a witness have failed, it can be said that there is unreasonable delay in securing the attendance. The provisions of Section 33 are exceptions to the general rule that, in order that the evidence of a witness may be admissible against a party, he must have an opportunity to test the truth of the statement by cross-examination. The exception cannot be lightly availed of. Where no attempt has been made by summoning the witness or by other means to secure his presence, the earlier statement in the execution proceedings 21/24 http://www.judis.nic.in Second Appeal No.1499 of 2002 cannot be taken as admissible. There is no evidence to show that the presence of the said witness is highly impracticable and he is no longer visiting India. It has not been established that he was permanently staying in USA at the relevant point of time. Without establishing the same, it cannot be said that such evidence is admissible. Even assuming that the above evidence is relevant, this Court is also perused the same and he is none other than the brother of the beneficiary. His evidence in the previous proceedings also indicates that executant is an old and rustic villager and she used to stay in his house whenever she visits to Chennai for other proceedings. Such being a position, in fact, family members were actually in a position to dominate the Will of the old lady. Even, if the above evidence is considered, the same does not satisfy the conscience of the Court to accept the validity of Ex.B.10. Accordingly, the substantial questions of law are answered against the appellants/defendants 1 and 2.
26. In the result, the Second Appeal fails and accordingly, the same stands dismissed. No costs.
16.12.2019
Index : Yes/No
Internet : Yes/No
22/24
http://www.judis.nic.in
Second Appeal No.1499 of 2002
To
1.The Additional District Judge -cum-
Chief Judicial Magistrate,
Sivaganga.
2.The Subordinate Judge,
Sivaganga.
3.The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
23/24
http://www.judis.nic.in
Second Appeal No.1499 of 2002
N.SATHISH KUMAR, J
SML
Judgment made in
Second Appeal No.1499 of 2002
Delivered on:-
16.12.2019
24/24
http://www.judis.nic.in