2.A.Subbian
3.S.Rathinam
4.S.Rajkumar
5.S.Sasikumar ... Respondents 2 to 5 in SA.No.1669 of 2008 (respondents 3 to 5 are the legal heirs of the deceased Shanmugham the 4th defendant in O.S.No.14 of 2000) These second appeals have been focussed as against the common judgement and decrees dated 23.6.2008 passed by the Subordinate Court, Tiruppur, in A.S.Nos.6 and 7 of 2007, confirming the common judgment and decrees dated 8.12.2006 passed by the District Munsif cum Magistrate Court, Palladam, in O.S.Nos.410 of 2004 and 14 of 2000, respectively.
(b) In both the suits, the defendants concerned resisted the suit. During such joint trial, the said M.B.Subramaniam examined himself as P.W.1 apart from examining one Ramaswamy as P.W.2 and Balasubramaniam as P.W.3 and Exs.A1 to A19 were marked on his side. The said Ramasamy Gounder examined himself as D.W.1 apart from examining N.Subramaniam as D.W.2 and P.Subramaniam as D.W.3 and and Ex.B1 to Ex.B6 were marked on his side.
(c) Ultimately the trial Court dismissed the suit O.S.No.14 of 2000 filed for permanent injunction by M.B.Subramaniam-the appellant in both the second appeals and decreed the suit O.S.No.410 of 2004 filed by Ramaswamy Gounder-the respondent in both the second appeals.
(d) Being dissatisfied with the said common judgments and decrees, A.S.Nos.6 and 7 of 2007 were filed by the appellant (M.B.Subramaniam) for nothing but to be dismissed by the first appellate Court confirming the common judgment and decrees of the lower Court.
2. Being unhinged and disconcerted by the said common judgment and decrees, these second appeals have been filed by M.B.Subramaniam on various grounds.
3. After hearing for some time the arguments on both sides, this Court felt that with the consent of both sides, both these matters could be disposed of finally by framing the following substantial questions of law.
1. Whether Arunachala Gounder had the unilateral right to cancel Ex.A6 by virtue of Ex.B3 without filing a suit for cancelling Ex.A6?
2. Whether Ex.A6 is a void document as put forth by the respondent-Ramasamy Gounder?
3. Whether both the Courts below were perverse in appreciating the evidence and giving a finding in favour of Ramasamy Gounder-the respondent?
4. Whether the suit filed by M.B.Subramaniam is bad for want of prayer for declaration of title?"
Heard both sides on these substantial questions of law.
Gamut of the case:
4. A deep analysis of and poring over the typed set of papers, including the judgments of both the Courts below, would demonstrate and display that M.B.Subramanian-the plaintiff in O.S.No.14 of 2000 and defendant in O.S.No.410 of 2004 (hereinafter referred to as the appellant in both the second appeals) filed the suit O.S.No.14 of 2000 for bare injunction, so as to safe-guard his possession as against the deceased Arunachala Gounder and his three sons, namely, Ramaswamy Gounder, Subbiyan and Shanmugam - on the death of Arunachala Gounder, his wife Karupathal also was added - on the ground that as per Ex.A6-the sale deed dated 10.11.1999, the deceased Arunachala Gounder sold, in favour of the appellant, the suit property and he has been continuing in possession of the same and the fact also remains that previous to such purchase he had been in possession and enjoyment of the suit property as a tenant under Arunachala Gounder.
5. Whereas, Ramaswamy Gounder(hereinafter referred as the respondent in both the appeals) filed the suit O.S.No.410 of 2004, seeking recovery of possession on the ground that the tenancy of M.B.Subramaniam was terminated relating to the suit property and that Ramasamy Gounder being the absolute owner of the suit property by virtue of the Settlement Deed-Ex.B1 dated 12.3.2000, which was executed by Arunachala Gounder.
Significant submissions of learned Advocates on both sides:
6. The gist and kernal, the nitty-gritty of the arguments of the learned Senior counsel for the appellant would be to the effect that Ex.A6 being a registered sale deed, admittedly executed by the deceased Arunachala Gounder, should not have been cancelled by him unilaterally by executing Ex.B3, without filing a suit, during his life time, for cancellation of Ex.A6; if at all Arunachala Gounder wanted to cancel the said sale deed on the grounds alleged by the respondent herein, then he should have filed such a suit within three years, but he had not chosen to do so; as per the respondents plea, had there been no consideration paid by the vendor to the vendee under Ex.A6, the vendor Arunachala Gounder should have filed a suit for recovery of sale consideration in view of the fact that as per Ex.A6 the title over the suit property passed from Arunachala Gounder to the appellant; Ex.A6, by no stretch of imagination, could be termed as a void document and both the Courts below were perverse in appreciating the evidence, which warrants interference by this Court.
7. By way of remonstrating and refuting the arguments of the learned Senior counsel for the appellant, the leaned Senior counsel for the respondent advanced his arguments, the pith and marrow, the quintessence and core of it would be to the effect that Ex.A6 was a void document, requiring no filing of suit, at the instance of Arunachala Gounder, to get it cancelled or set aside as per law; he had the right to cancel Ex.A6 by virtue of Ex.B3-the registered cancellation deed, without filing a suit and execute Ex.B1-the settlement deed in favour of his son-Ramaswamy Gounder-the respondent; both the Courts below gave a categorical finding to the effect that Ex.A6 contains bogus consideration; even without executing Ex.B3-the registered cancellation deed, Arunachala Gounder had the right to execute Ex.B1-the Settlement Deed; the suit filed by the appellant for injunction is bad for want of a prayer for declaration of title and accordingly, he prayed for dismissal of both the second appeals.
8. Since all the four substantial questions of law are interlinked and interwoven, interconnected and entwined with each other, they have been taken up together for discussion.
9. Indubitably and indisputably, Ex.A6 is a registered sale deed, which contains the recitals to the effect that the said Arunachala Gounder sold the suit property in favour of the appellant for a total sale consideration of Rs.2,00,000/-(Rupees two lakhs). The said two lakhs of sale consideration is found detailed in the sale deed as under:-
"(1) The purchaser (M.B.Subramanian) paid a sum of Rs.1,00,000/-(Rupees one lakh) to K.Ramaswamy (P.W.2) in connection with the loan availed by Arunachala Gounder from P.W.2 to meet his medical expenses.
(2) The purchaser (M.B.Subramanian) paid a sum of Rs.50,000/-(Rupees fifty thousand) to Balasubramanian (P.W.3) for and on behalf of Arunachala Gounder-the vendor by way of discharging the dues payable by the vendor.
(3) the seller received a sum of Rs.50,000/-(Rupees fifty thousand only) in cash in the presence of the witnesses as contemplated in Ex.A6.
10. The learned Senior counsel for the respondent would contend that all the said three considerations as found set out in Ex.A6 are bogus ones; the appellant, with the help of Arunachala Gounders son-Shanmugam (D4) in O.S.No.14 of 2000 managed to bring about Ex.A6; the said P.W.2 and P.W.3 are the close relatives of D.4-Shanmugam and as such, both the debts were not proved and consequently, the discharge of those alleged deeds also were not proved and D4 shunned the witness box even though the recitals in Ex.A6 would be to the effect that in the presence of D4 and one other person, the alleged cash of Rs.50,000/- was paid by the appellant to the father of the respondent, namely, Arunachala Gounder. Accordingly, the learned Senior counsel for the respondent would argue that both the Courts below correctly held that Ex.A6 was not supported by the consideration and the consideration found stated therein were bogus and in such a case, the voidity of Ex.A6 warranted no compulsion on the part of Arunachala Gounder to file a suit for declaring its voidity or for canceling it.
11. Whereas the learned Senior counsel for the appellant would argue that absolutely there is no shard or shred, scintilla or pint-sized, iota or miniscule extent of evidence to demonstrate and evince that Ex.A6 is a void document. He would cite the following decisions in support of his arguments:
(i) JT 1995(1) SCC 223- Smt Ramti Devi v. Union of India, an excerpt from it would run thus:
"Held We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre-existing debts and it is a registered document. Apart from the prohibition under S.92 of the Indian Evidence Act to adduce oral evidence to contradict the terms of the recitals therein, no issue in this behalf on the voidity of the sale-deed or its binding nature was raised nor a finding recorded that the sale-deed is void under S.23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the Court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document remains valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action has arisen on January 29, 1947, the date on which the sale-deed was executed and registered and the suit was filed on July 30, 1966, the suit his hopelessly barred by limitation."
(ii) (1998) 7 SCC 498 Bishundo Narain Rai (dead) by Lrs. And others vs. Anmol Devi and Others, certain excerpts from it would run thus:
"11. Apropos the question noted above, a reference to
Section 54 of the Transfer of Property Act will be apposite. While defining 'sale',
Section 54 sets out how sale is made. Sale is defined to mean a transfer of ownership in exchange for price paid or promised or part-paid or part-promised; it says, inter alia, in case of tangible immovable property of the value of Rs.100 and upward or in case of a reversion or other tangible things, sale can be made only by a registered instrument.
Section 8 of the Transfer of Property Act declares that on a transfer of property, all the interests which the transferor has or is having at that time, capable of passing in the property and in the legal incidence thereof, pass on such a transfer unless a different intention is expressed or necessarily implied. A combined reading of
Section 8 and
Section 54 of the Transfer of Property Act suggests that though on execution and registration of a sale deed, the ownership and all interests in the property pass to the transferee, yet that would be on the terms and conditions embodied in the deed indicating the intention of the parties. It follows that on execution and registration of a sale deed, the ownership title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which was to be proved by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provisions of
Section 92 of the Evidence Act, 1872.
14. These averments unmistakably indicate conveying of title to the property absolutely for consideration as outlined; by virtue of the sale, the purchasers were put in possession of the property conveyed, became entitled to the custody of the sale deed and other documents and enjoyment of the property. These factors satisfy all the requirements of absolute sale. No recital in Exhibit C is brought to our notice to indicate any contraintention. What is, however, argued is that out of the consideration, a sum of Rs 3235 remained unpaid; that the mortgage loan under Sudhbharna Bond dated 29-7-1946 was not discharged and that the registration receipt was retained by the vendors so it is manifest that the intention of the parties was that the title would not pass to the purchaser on execution and registration of Exhibit C. We are not impressed by this submission. It appears that in the State of Bihar, a practice is prevalent that when the whole or part of a sale consideration is due or any other obligation is undertaken by the vendee, then on execution and registration of the sale deed by the vendor, title to the property, the subject-matter of the sale, does not pass ta khubzul badlain, that is, until there is exchange of equivalent and in such a case registration receipt is retained by the vendor, which on payment of consideration due or on fulfilment of the obligation by the vendee is endorsed in his favour or if the sale deed has already been received by the vendor, then the sale deed is delivered to the vendee. Even so, this only shows that such agreements are common in that part of the country but it is essentially a matter of intention of the parties which has to be gathered from the document itself but if the document is ambiguous, then from the attending circumstances, subject to the provisions of
Section 92 of the Evidence Act.
15. We have already referred to the findings of the courts below. Although the trial court found that Rs 3000, a part of the consideration, was not paid, the High Court relying upon the receipt, Exhibit 6, held that it was paid on 5-5-1963, as claimed by the first purchasers; the balance of consideration of Rs 235 was admittedly deposited by the first purchasers in court. Thus, the entire consideration was paid by the first purchasers. Further, the High Court expressed the view that not depositing the Sudhbharna Bond amount of Rs 6249 in court would be fatal to the case of the first purchasers. That view is contrary to the judgment of a Division Bench of the Patna High Court in Shiva Narayan Sah v. Baidya Nath Prasad Tiwary1. We are in agreement with the opinion of the Patna High Court in Shiva Narayan Sah case1 that depositing the mortgage amount in court is one of the three ways available to the mortgagor before filing a redemption suit and that he was free to choose any mode; non-deposit of the mortgage money was not fatal to the suit. Further, as the first purchasers had deposited that amount in terms of the decree of the trial court, this point is not available to the vendors. Therefore, on that ground, it cannot be said that that part of the consideration was not paid. In any event, as sale of suit property under Exhibit C was subject to mortgage, it was for the vendee to discharge the mortgage debt so any default or delay in payment of the said amount cannot be construed as non-payment of consideration. On construction of Exhibit C, we find that the recitals thereof are unambiguous and that the parties have expressed no intention that unless the Sudhbharna Bond amount is paid, the title to the suit property will not pass to the vendee. The only ground that remains is non-delivery of the registration receipt by the vendors to the first purchasers which appears to be due to subsequent developments, namely, execution of Exhibit H and Exhibit C/1, so it cannot be said to indicate an intention which interdicts passing of title to the first purchasers under Exhibit C. We may observe that it was not open to the vendors to unilaterally cancel Exhibit C by executing Exhibit H. The trial court on interpretation of Exhibit C came to the conclusion, in our view rightly, that (1) title to the suit property passed on to the first purchasers on execution and registration of Exhibit C, but the High Court reversed that finding for reasons which, as pointed out by us, are unsustainable.
(iii) A.I.R.1920 Madras 164 Yella Krishnamma vs.Kotipalle Mali
(iv)1999(3) L.W.162 Raveedran Nair v. Thankam
(v) 1998(3) MLJ 372 Chellappa Gounder (died) and others v. Ramasami Gounder alias Karuppa Gounder (died) and others;
A bare perusal of those judgments would highlight and spotlight the legal position that a vendor of a sale deed cannot simply, throwing to winds
Section 92 of the Indian Evidence Act, treat the sale deed as a void one.
12. At this juncture, I call up and recollect the following decision also:
(2003) 6 SCC 595 [Roop Kumar v. Mohan Thedani], an excerpt from it would run thus:
"17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence."
13. I would also like to extract hereunder
Section 92 of the Indian Evidence Act.
"92.Exclusion of evidence of oral agreement When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives gin interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.
Proviso(1) Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law."
14. A plain reading of the above would evince and evidence, express and expatiate that any document required to be reduced in writing, so to say including a sale deed, is having the sanctity of its own and parties cannot be allowed to plead anything contrary to the terms and conditions contained therein. However, under the five provisos to
Section 92 of the Indian Evidence Act, the interested parties concerned are permitted to adduce evidence to the contrary and it has to be seen as to whether in this case, the first proviso to
Section 92 of the Indian Evidence Act is attracted. As such the onus of proof as well as onus probandi is on the respondent to prove that the recitals contained in Ex.A6 are way are bogus ones. But a plain reading of the plaint in O.S.No.410 of 2004 filed by Ramasamy Gounder-the respondent is bereft of any averments constituting his pleadings, capable of attracting the first proviso to
Section 92 of the Indian Evidence Act.
15. As such, if Ramasamy Gounder wanted to invoke the proviso (1) to
Section 92 of the Indian Evidence Act, he should have pleaded in his plaint specifically about want of consideration in Ex.A6. The plaint in O.S.No.410 of 2004 comprised of 14 paragraphs, but in none of the paragraphs there is any whisper at least that Ex.A6 is a void document, in view of the total absence of consideration.
16. The learned Senior counsel for the respondent would refer to
Section 25 of the Contract Act and the following decisions to highlight the point that any contract not supported by consideration is void.
(i) 1998(1) CTC 443 Sri Tarsem Singh vs. Sri Sukhminder Singh;
(ii) 2007(4) CTC 186 Andritz Qy.rep. through Power of Attorney Agent, Mr.Siraj Ahmad, New Delhi vs. Enmas Engineering Pvt.Ltd., rep.by its Director and Principal Officer, Chennai and another;
(iii) AIR 1966 SC 193 Chidambara Iyer and others vs. P.S.Renga Iyer and others.
17. The Apex Court's judgment reported in 1998 (1) CTC 443-Sri Tarsem Singh vs. Sri Sukhminder Singh, cited supra emerged relating to a different set of facts from the one involved in this case. In the said decision agreement to sell alone was contemplated and in that connection, the Honourable Apex Court highlighted as to what are all void documents and that if documents are not supported by consideration, it would be void. Such a proposition is quite explicit and there could be no second thought over it.
18. The decision of the Honourable Apex Court reported in AIR 1966 SC 193-Chidambara Iyer and others vs. P.S.Renga Iyer and others defines what is consideration and valuable consideration and how it is essential for a contract and as such, there could be no quarrel over such a proposition.
19. The decision of this Court reported in 2007(4) CTC 186- Andritz Qy.rep. through Power of Attorney Agent, Mr.Siraj Ahmad, New Delhi vs. Enmas Engineering Pvt.Ltd., rep.by its Director and Principal Officer, Chennai and another also highlights that absence of consideration would lead to voidity of a contract and such a verdict is based on well settled legal position.
20. Absolutely there could be no quarrel over such propositions of law found enunciated in these decisions. But here
Section 25 of the Contract Act and the decisions, which the learned Senior counsel for the respondent cited on his side cannot directly be applied out of context in view of the fact that absolutely there is no pleading at all to show that Ex.A6 is a void document. The suit O.S.No.410 of 2004 filed by the respondent-Ramasamy Gounder is only for obtaining delivery of possession of the suit property on the alleged ground that termination notice was sent to the appellant herein terminating the tenancy relating to the suit property and that he also committed default in paying rents. As has been highlighted by me supra, the onus of proof is on the respondent-Ramasamy Gounder to show that Ex.A6-the registered sale deed, executed by Arunachala Gounder, is a void one and that he had unilateral right to execute Ex.B3 by way of cancelling Ex.A6 and consequently to execute Ex.B1. There is absolutely no prayer for declaration of respondent's/Ramasamy Gounder's title to the suit property.
21. It is a trite proposition of law that any amount of evidence, without pleadings should be eschewed. Here the respondent/Ramasamy Gounder, despite knowing the existence of Ex.A6, simply had chosen to file the suit as though M.B.Subramaniam was a tenant under him. The learned Senior counsel for the appellant would correctly point out incidentally that not even the termination notice, terminating the alleged tenancy of the appellant herein was marked before the lower Court, for which, the learned Senior counsel for the respondent would argue that admitted facts need not be proved and that the appellant admitted such issuance of termination notice. In my considered opinion, statutory notice under
Section 106 of the Transfer of Property Act should have been specifically marked during trial, but the respondent failed to do so during the joint trial of both the suits.
22. Be that as it may, here the serious law point is relating to the right of Arunachala Gounder to unilaterally cancel Ex.A6 by virtue of Ex.B3. The unassailable and incontrovertible fact is that knowing fully well that Ex.A6 is a sale deed, Arunachala Gounder consciously had put his left thumb impressions in all sheets of Ex.A6 and executed the said sale deed in the presence of his son-D4 and one other witness. In such a case, Arunachala Gounder, before executing Ex.B3-the cancellation deed should have filed the suit for cancellation of Ex.A6 the said deed. Had he been not a party to Ex.A6, then the matter would be entirely different.
23. Here, in Ex.A16-the caveat petition filed by Arunachala Gounder, even anterior to the filing of the suit, he would simply state as follows:-
"He falsely obtained the sale deed. The said sale deed cancelled by me"(emphasis supplied) Arunachala Gounder's stand in Ex.A6 would clearly reveal that as per him a fraud was committed on him in getting executed Ex.A6 by him, wherefore it is crystal clear as per the well settled proposition of law that 'fraud' would render a document voidable and not void. In this connection I would like to extract hereunder an excerpt from the famous legal classic Broom's Legal Maxim (10th Edition page 541) ". . . . . . . And a contract induced by fraud is not void but only voidable at the election of the party defrauded". A fortiori Arunachala Gounder, as per his stand, should have filed a suit to get set aside or cancelled Ex.A6, which he had not done. It is not for Arunachala Gounder to decide his case for himself. It is for the Court, in such appropriate suit which ought to have been filed by Arunachala Gounder, as per his stand, to decide whether the said sale deed executed by him is false or not.
24. The decision of the Honourable Apex Court reported in JT 1995(1) SCC 223 Smt.Ramti Devi v. Union of India, cited supra, would exemplify and demonstrate that the vendor in a sale deed should necessarily approach the Court for getting such sale deed avoided or cancelled by filing a suit within the period of limitation.
25. The learned Senior counsel for the respondent cited the following Full Bench decision of the Andhra Pradesh High Court reported in AIR 2007 Andhra pradesh 57- Yanala Malleshwari w/o.Yadgiri Reddy etc., etc., v. Smt.Anbanthula Sayamma w/o.Late Gopaiah and another etc. etc. and try to point out that there could be unilateral cancellation of a sale deed by the vendor if he finds that the sale deed is a void one.
26. At this juncture I would like to point out that the ratio decidendi of a judgment alone would act as a binding precedent. Hence, it has to be seen as to what is the ratio decidendi of the Full Bench decision of the Honourable Andhra Pradesh High Court. Certain excerpts from it would run thus:-
" 33. . . . Further, in case of an instrument, which is void or voidable against executant, a suit would be maintainable for cancellation of such instrument and can be decreed only when it is adjudicated by the competent Court that such instrument is void or voidable and that if such instrument is left to exist, it would cause serious injury to the true owner.
99. As already referred to in these cases, there are serious disputed questions of fact regarding the allegations of fraud and misrepresentation played by the vendors as well as vendees against each other, there are also questions raised regarding the competence and entitlement of a person executing the document. In some cases (W.P.Nos.22298, 23005 and 23088 of 2004), the sale deeds were cancelled some time in August, 2003, but the writ petitions are filed with considerable delay. In some cases, there are complaints of cancellation of deeds/instruments after lapse of ten years after execution of the original deed. In the opinion of this Court, these are the matters which are to be decided based on evidence and the affidavit evidence available on record is hardly sufficient to decide the issues in such a manner to meet the ends of justice. Indeed, in some of the matters (W.P.Nos.879, 880, 881, 882, 979, 980 and 981 of 2006), suits are already filed for injunction and the orders of status quo are in force. Therefore, this Court is of considered opinion that the parties should be relegated to the civil Court to file suit either under
Section 31 or under
Section 34 of Specific Relief Act. Point No.2 is answered accordingly.
100. In the result, for the above reasons, all the writ petitions are dismissed subject to observations made hereinabove. Be it noted, as and when any suits are filed, the civil Court has to decide the issues regarding disputed questions of facts without in any manner influenced by the observations made in this Judgment. There shall be no order as to costs."
27. A bare perusal of the Full Bench decision of the Honourable Andhra Pradesh High Court would clearly indicate that there is no favourable point in favour of Ramasamy Gounder. Nowhere the Full Bench decision postulates that in a case like the one here, Arunachala Gounder was absolved from instituting a suit within three years to get cancelled Ex.A6, wherein he happened to be the executor and that too when he admits the due execution, but pleads only failure of consideration.
28. The learned Senior counsel for the appellant would cite the recent decision of this Court reported in 2009-2-L.W.247-G.D.Subramaniam vs. 1.The Sub Registrar, Office of Konur Sub Registrar, SIDCO Nagar, Chennai-49 and three others. In the said decision, the aforesaid decision of the Andhra Pradesh High Court has been referred to and ultimately this Court concluded as under:-
31. Out of the foregoing discussions, the emerging conclusions are summed up as follows:-
(i) Challenging registration of a unilaterally executed deed of cancellation of a sale, a writ petition is maintainable under
Article 226 of the Constitution of India;
(ii) A deed of cancellation of a sale executed by mutual consent by all parties to the sale deed, if presented for registration, the registering Officer is bound to register the same provided the other requirements like
Section 32-A of the Registration Act have been complied with.
(iii) The Registering Officer is obliged legally to reject and to refuse to register a deed of cancellation of a sale unilaterally executed without the knowledge and consent of other parties to the sale deed and without complying with
Section 32 A of the Registration Act.
The Result:
32. In the result, the writ petition is allowed. The registration of the cancellation deed (Document No.4433 of 2007) by the first respondent is hereby quashed. Having regard to the facts and circumstances of the case, the respondents 2 to 4 are directed to pay a cost of Rs.10,000/- (Rupees ten thousand only) to the petitioner. Consequently, connected miscellaneous petitions are closed.
In fact, this Court in the judgment cited supra had taken a different view from the one taken by the majority in the Full Bench decision of the Andhra Pradesh High Court.
29. I would like to point out that here the main issue is not relating to the right to file writ petition challenging the unilateral execution of a cancellation deed and getting the same registered. However, this Court, in the judgment cited in 2009-2-LW 247 held that unilateral execution of a cancellation deed and getting it registered is not tenable.
30. Axiomatically and apparently, in this case, despite the vendor of the sale deed Ex.A6 having had full knowledge about the execution of the sale deed Ex.A6 by him, had not chosen to file the suit to get Ex.A6 cancelled or avoided. Ex.A6 is dated 10.11.1999, whereas, Arunachala Gounder died on 9.1.2001 and before his death, even though he had chosen to file the caveat-Ex.A16, as set out supra, he had not chosen to file a suit, as contemplated in the decision of the Honourable Apex Court cited supra. No doubt, he died within three years from Ex.A6-dated 10.11.1999 and Ramasamy Gounder-his son, who claims to be the beneficiary of the settlement deed Ex.B1 could have, within three years computing from 10.11.1999, filed such suit, as contemplated in the Apex Court's judgment. But he has also not chosen to file such a suit. As such, the learned Senior counsel for the appellant is right in his argument that having failed to file the suit, as contemplated above and having lost the right to get set aside or cancelled or avoided the said document Ex.A6, it is not open for Ramasamy Gounder, in a suit for bare recovery of possession, based on the alleged cause of action to plead that the appellant was the tenant under him.
31. At this juncture, I call up and recollect that Ramasamy Gounder filed the suit O.S.No.410 of 2004 based on the alleged cause of action as found set out in paragraph 13 of the plaint, which reads as follows:
"13. The cause of action for the suit arose on 31.12.2000 when the defendant became a tenant under plaintiff's father and on 12.3.2000 when the plaintiff became the owner and the tenancy was also attorned and the defendant failed to pay rent and on 12.8.2000 when the tenancy was terminated with effect from 30.9.2000 and the defendant failed to deliver the possession and failed to pay the arrears of rent at all at: Somanur Village, where the tenancy premises is situate within the jurisdiction of this Honourable Court."
32. Glaringly and pellucidly, it is clear that Ramasamy Gounder, in his plaint in O.S.No.410 of 2004 (O.S.No.653 of 2003) pre-supposed and assumed for himself that there was attornement of tenancy in his favour by M.B.Subramaniam (appellant) and filed the suit. The fact remains that Ramaswamy Gounder's father, during his life time, filed the caveat petition-Ex.A16, disputing the sale deed Ex.A6 and also referred to his own cancellation deed Ex.B3. In such a case, Ramasamy Gounder, is guilty of suppression of material facts in the plaint, attracting the maxim 'Supressio veri Expressio falsi'(suppression of the truth is equivalent to espression of what is false).
33. The suit, as such framed by Ramasamy Gounder is far from satisfactory and it was liable to be dismissed in limini; but both the Courts below, without properly understanding the scope of the suit and actual dispute between the appellant and the respondent decreed Ramasamy Gounder's suit O.S.No.410 of 2004 by going into various aspects of the matter in an unsatisfactory manner.
34. At this juncture, it is just and necessary to extract hereunder the actual issues framed by the trial Court.
VERNACULAR (TAMIL) PORTION DELETED O.S.No.410 of 2004 (1) Whether the plaintiff-Ramasamy Gounder is entitled to recovery of possession?
(2) Whether the plaintiff is entitled to recover a sum of Rs.68,000/-?
(3) To what relief is the plaintiff entitled?
AND O.S.No.14 of 2000:
(1) Whether the plaintiff (M.B.Subramaniam) is entitled for permanent injunction as prayed for?
(2) Whether the plaintiff (M.B.Subramaniam) purchased the suit property from Arunachala Gounder(D1) for valuable consideration?
(3) to what relief is the plaintiff entitled?
35. In a bare suit for injunction filed by the appellant, in O.S.No.14 of 2000, I am of the considered opinion that such issue No.2 does not arise at all and it is beyond the scope of the suit. In the suit for permanent injunction filed by the appellant, the respondent-Ramasamy Gounder had not raised any plea that there was no consideration at all or consideration was not paid by M.B.Subramaniam to Arunachala Gounder. Even then, the lower Court did choose to frame the said issue No.(2) as above, without any basis and it is totally antithetical to Order 14 of C.P.C. In fact, D4, in his written statement in O.S.No.14 of 2000 would clearly support the appellant's case that Ex.A6 was supported by consideration. But D2-Ramasamy Gounder, who was the contesting defendant in that suit had not chosen to put forth his plea in black and white in his written statement that Ex.A6 was bad in law due to certain reasons. Absolutely there is no whisper about failure of consideration much less about bogus nature of the consideration in Ex.A6. Hence, the trial Court and the first appellate Court having been unable to see the wood for tree, decided the lis, warranting interference by this Court.
36. I am fully aware of the fact that in second appeal, the High Court will not reevaluate the evidence afresh unless there is perversity.
37. In view of my discussion supra, I hold that without understanding the scope of the suits and the gamut of Order 14 of C.P.C.relating to framing of issues and also the provisions of
Section 92 of the Indian Evidence Act, both the Courts below misdirected themselves in deciding the lis.
38. It is explicit that Arunachala Gounder, during his life time, and his son Ramaswamy Gounder, within three years from 10.11.1999-the date of execution of Ex.A6, did not file a suit for its cancellation or setting aside the same and thereby Ramasamy Gounder lost his right to lay claim over the suit property.
39. Alternis visibus, at least, Ramasamy Gounder in the suit O.S.No.410 of 2004 could have prayed for declaring the alleged voidity of Ex.A6 by setting out certain grounds and therdeby trying to justify that he was not under the necessity to file a suit to get cancelled or set aside Ex.A6 and that he could straight away file a suit for recovery of possession by getting his title declared in respect of the suit property on the strength of Ex.B1-the Settlement Deed executed by Arunachala Gounder in his favour. But for obvious reasons, Ramasamy Gounder, had not chosen to seek for declaration of title. No doubt, Ramasamy Gounder will raise his accusative finger as against M.B.Subramaniam(appellant) that the suit O.S.No.14 of 2000 is bad for want of a prayer for declaration of title. This amounts to pot calling kettle black.
40. It is a common or garden principle of law that when there is a serious title dispute to the knowledge of the parties, they, while filing a suit for certain relief, should necessarily pray for declaration of the title. My own judgment reported in 2007(4) CTC 70 Chinna Nachiappan and another vs. PL.Lakshmanan has been cited on the side of the respondent-Ramasamy Gounder to highlight the following points:
"14. Not to put too fine a point on it, right at the outset, I may proceed to refer to the averments in the plaint at paragraph Nos.4,5,6, 7 and 8 which unambiguously and unequivocally referred to a serious title disputes between the plaintiff and the defendants. Paragraph No.8 is extracted here under for ready reference:
"Though joint patta had been issued to the plaintiff and his pangalis have been and are in possession as per the partition among themselves. Thus the suit property continues to be in the possession and enjoyment of the plaintiff".
15. The above extract from the plaint itself, is sufficient to non-suit the plaintiff in view of having not prayed for declaration of title. It is trite proposition of law that if the plaint itself contains the averments relating to title disputes between the plaintiff and the defendants, the former cannot simply pray for protecting his alleged possession by filing a suit for injunction. He should necessarily pray for declaration of his title. In this connection, Order 2, Rule 2 of Code of Civil Procedure, could fruitfully be referred to and it is extracted here under for ready reference:
"2. Suit to include the whole claim Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court"
41. I would reiterate the same law point, without any hesitation. My observation relating to the injunction suit would squarely be applicable to the appellant's injunction suit as well as to the suit filed by Ramasamy Gounder for recovery of possession. In civil jurisprudence, a suit for recovery of possession of an immovable property is always taken as a serious and heavier suit than a suit for bare injunction.
42. Here the appellant-M.B.Subramaniam filed a simple suit for injunction, without praying for declaration of his title. Whereas, in the subsequently instituted suit by Ramasamy Gounder, he, after knowing the actual dispute and the history of the dispute, did choose to make a prayer for recovery of possession, based on the cause of action, as found detailed in paragraph 13 of his plaint, which is extracted supra, suppressing the intricacies of the real dispute involved in the matter. In fact, in O.S.No.14 of 2000, M.B.Subramaniam, elaborately narrated the history of his title even though he had not made a prayer for declaration of his title and the respondent-Ramasamy Gounder filed the written statement, disputing the title of the appellant (M.B.Subramaniam) also. The fact also remains that Ramasamy Gounder's brother-D4 in O.S.No.14 of 2000 filed his written statement as early as on 6.4.2000 itself supporting M.B.Subramanhiam's case. The incontrovertible fact is that Ramasamy Gounder filed the suit O.S.No.653 of 2003, in the year 2003, which was subsequently renumbered as O.S.No.410 of 2004 and he should have adverted to the title dispute in his plaint and prayed for declaration of his title, but he totally and completely suppressing the actual dispute, simply filed the suit for recovery of possession as though the appellant was a tenant under him and that he allegedly terminated such tenancy. In the plaint relating to O.S.No.14 of 2000, filed by the appellant herein, he categorically averred that ever since Ex.A6 dated 10.11.1999, his possession was not that of a tenant but that of a owner. It is therefore crystal clear that the avermentrs in the suit O.S.No.410 of 2004 filed by Ramasamy Gounder would not constitute a legal plaint to obtain recovery of possession of the suit property from the appellant.
43. Not to put too fine a point on it, a fortiori, both the Courts below, without au fait with law and au courant with facts, misdirected themselves and decided the lis in favour of Ramasamy Gounder, warranting interference by this Court.
44. The trial Court as well as the first appellate Court should have posed the question to themselves as to whether within the scope of those two suits, they were justified in probing into the factum of passing of consideration under Ex.A6 or the alleged factum of bogus nature of consideration found recited in Ex.A6. The answer is an emphatic 'no'.
45. In view of the scope of those suits, absolutely there had been no chance for either of the parties to adduce evidence relating to the passing of the consideration or the alleged bogus nature of the consideration etc.relating to Ex.A6. Even then, both the Courts below thought fit to consider the evidence before them and curiously jumped to the conclusion as though non production of the discharged pro note and receipts, evidencing the discharge of loans of Arunachala Gounder by M.B.Subramaniam, was fatal to Ex.A6.
46. To the risk of repetition without being tautologous, I would highlight that this Court while exercising its power under Section 100 of C.P.C.could probe into the perversity of both the Courts below in their appreciation of evidence and as to how they got the wrong end of the stick. Before venturing to analyse such perversity, I would once again place on record that both the Courts below were not justified in entertaining evidence relating to validity or otherwise of Ex.A6, Ex.B3 and Ex.B1. Nonetheless, I would like to point out that how both the Courts below were not justified in expecting M.B.Subramaniam to prove that he discharged the loans referred to in Ex.A6 and also paid the cash of Rs.50,000/- to Arunachala Gounder under Ex.A6.
47. My discussion supra centered on
Section 92 of the Indian Evidence Act would highlight that Arunachala Gounder having executed Ex.A6 cannot unilaterally ignore it. The failure of consideration or bogus nature of consideration should have been proved by Arunachala Gounder or his son Ramasamy Gounder, the claimant for the suit property, as the onus probandi and the onus of proof cannot be fobbed off on M.B.Subramaniam, who is the holder of a registered sale deed Ex.A6.
48. The learned Senior counsel for the respondent would argue that in order to prove Ex.A6, the contesting witnesses have not been examined. In my considered opinion, such an argument fails to carry conviction with this Court for the reason that a sale deed is not a document like 'Will'. A registered sale deed can, as such, be marked and that too when Arunachala Gounder himself in his caveat Ex.A16 admitted the execution of the sale deed Ex.A6. Denying the execution of sale deed in toto is different from admitting a sale deed, but denying certain recitals in it or the failure of consideration or bogus nature of consideration. The distinction which I have made is not one that of tweedledum and tweedledee, but there is an abysmal difference between the said two pleas. In a case if the executant denies his signature as well as execution and pleads virtually impersonation, it is obvious that the vendee in addition to relying on
Section 114(e) of the Indian Evidence Act, has to examine the attesting witnesses to prove the due execution. But, here, Arunachala Gounder, during his life time, clearly admitted the execution of Ex.A6-the sale deed. But he only pleaded failure of consideration and the same could rightly be understood by a plain reading of Ex.B3-the cancellation deed dated 19.1.2000. An excerpt from Ex.B3 dated 19.1.2000 would run thus:-
VERNACULAR (TAMIL) PORTION DELETED
49. A bare perusal of the said excerpt from Ex.B3 would indicate and exemplify that according to Arunachala Gounder, the sum of Rs.2,00,000/- stated as consideration in Ex.A6, was not in fact got credited in his favour. By his words "bry;yhftpy;[email protected] Arunachala Gounder did not dispute about even the two loans referred to in Ex.A6 as bogus ones. What are all in Ex.B3-the cancellation deed Arunachala Gounder stated was that the consideration of Rs.2,00,000/- was not credited to in his favour, so to say "bry;yhftpy;[email protected]/
50. The learned Senior counsel for the respondent would try to argue that in the sale deed Ex.A6 there is incongruity between the specification of the value of the property and the consideration. No doubt, in Ex.A6, the value of the property was specified as Rs.2,79,000/- and the consideration was stated as Rs.2,00,000/-. It is quite obvious that for the purpose of paying stamp duty the actual market value should be specified and it is for the parties to fix the sale price. Here, Arunachala Gounder in Ex.B3 did not state anything about the inadequacy of the sale consideration and consequently the alleged bogus nature of the consideration in the sale deed.
51. Ramasamy Gounder is not at all specific in his pleading as to what actuated and accentuated, propelled and impelled Arunachala Gounder to go to the Registrar's Office and got the sale deed registered and that too by having his son D4 with him.
52. The learned Senior counsel for the respondent would try to argue that D4, one of the sons of Arunachala Gounder, played the mischief. But absolutely there is no pleading and proof to that effect. The learned Senior counsel for the respondent also would submit that D4 was not examined before the trial Court.
53. In my considered opinion, once the onus probandi and onus of proof is on Ramasamy Gounder to prove the plea, it was not for the appellant-Subramaniam to examine D4 on his side and that too when the fact remains that the execution of Ex.A6 was admitted by Arunachala Gounder himself. It is not the recital of Arunahala Gounder in drafting Ex.B3 that Ex.A6 emerged out of impersonation, or it was made to be signed by him by making him to believe that it was not a sale deed but a different one. The recitals in Ex.B3, a portion of which extracted supra, would exemplify that Arunachala Gounder admitted the due execution of the sale deed by him and in such a case, admitted facts need not be proved by M.B.Subramaniam by examining D4, who is one of the attesting witnesses to Ex.A6.
54. The learned Senior counsel for the respondent also would try to impeach Ex.A6 on the ground that in the first page there is some shaky signature purported to be that of Arunachala Gounder, but in all sheets only his left thumb impressions are found.
55. In fact, such a factor lends strength to Ex.A6. In the first page of the photo copy of Ex.A6, which is found enclosed in the additional typed set of papers filed by the respondent, a shaky signature of Arunachala Gounder is found and it is found struck out and thereafter, at page No.5 of the said sale deed, a version is found inserted to the effect that at that relevant time Arunachala Gounder's hand was trembling and shaky, owing to his ill-health and that he could not sign and that in all pages, he was affixing his left thumb impressions. This clearly exemplifies and evinces as to how Arunachala Gounder, in the subsequent cancellation deed and Ex.B1-the Settlement deed, had put his signatures as during that relevant time he was capable of doing so by recuperating his health to the limited extent possible.
56. It is a common or garden principle in geriatrics and also it is a sheer common sense that aged people, on certain days, would be in a position to put their signatures and when there is slight ill-health on their part or set back in their health, they would not be able to sign. Here, consequent upon the fact that in the first page, he could sign with tremors, it was thought at that time that it was better not to obtain his signatures and accordingly, a clause was inserted at page No.5, which was not already found typed in a pre-planned manner. Above all, Arunachala Gounder by himself admitted about the due execution of the sale deed and in such a case, all these facts would not matter at all.
57. Both the Courts below erroneously found that non-production of the discharged pro note and the receipts issued by P.W.2 and P.W.3 in token of the discharge of their respective debts was fatal to the case of the appellant. I am of the considered opinion that once again I need not dilate on the same point, as the burden of proof was on Ramasamy Gounder, to plead about such bogus nature of consideration and prove it and not for M.B.Subramaniam. Even then, cutting across the technicalities, as to who should prove first and who should prove next, as per the Indian Evidence Act, the appellant herein examined those two creditors of Arunachala Gonder, namely, P.W.2 and P.W.3 on his side and they clearly and categorically, without mincing words, deposed that the dues under those debts referred to in Ex.A6 payable by Arunachala Gounder were discharged by the appellant. There cannot be any best evidence than the creditors evidence.
58. No doubt P.W.2 and P.W.3 are the relatives of P.W.1(M.B.Subramaniam) and it does not mean that their evidence should be looked askance at. Because they happened to be the relatives, there is no presumption that the appellant had chosen to concoct Ex.A6, reciting bogus consideration therein and that too when absolutely that was not the case of Arunachala Gounder and Ramasamy Gounder, as set out supra. There is nothing to doubt the evidence of P.W.2 and P.W.3.
59. It is not the case of anyone that those two creditors proceeded against Ramasamy Gounder for those debts of his father Arunachala Gounder. However, on Ramasamy Gounder's side, they would try to argue as though those two debts were bogus ones and I would highlight that that was not the case at all of Ramasamy Gounder or his deceased father Arunachala Gounder either in their pleadings or in Ex.B3 or Ex.B1. In such a case, both the Courts below misunderstanding the concept of burden of proof as well as 'onus probandi', simply carried away by the case of Ramasamy Gounder.
60. There is nothing to indicate that Ramaswamy Gounder was prevented from examing D4-Shanmugam, his brother on his side or as a Court witness so as to cross-examine him, with the permission of Court about his version in his written statement that in his presence only a sum of Rs.50,000/- was paid by M.B.Subramaniam to Arunachala Gounder. Here once again
Section 92 of the Indian Evidence Act would fortify and buttress the stand of the appellant, in view of the recitals found in Ex.A6 relating to payment of consideration of Rs.50,000/- in cash by the vendee to the vendor.
61. The depositions of D.W.2 and D.W.3 on the side of Ramasamy Gounder, are for proving Ex.B1 and Ex.B3 and in the facts and circumstances of this case and in view of the substantial questions of law framed herein, those are not germane to be considered in these second appeals.
62. Absolutely, there is no infinitesimal or miniscule extent of evidence to convey or expatiate that even after Ex.A6, the appellant continued to be a tenant under Arunachala Gounder or under Ramasamy Gounder and in such a case both the Courts below were not justified in ordering eviction of the appellant from the suit property.
63. The learned Senior counsel for the respondent, inviting the attention of this Court to Ex.A17-the proceedings of the Executive Officer-Karumathampatti Town Panchayat would develop his argument that the said document refers to a different property from the suit property and there is no indication that consequent upon Ex.A6, in the house tax register there took place mutation by replating the name of Arunachala Gounder, with the name of M.B.Subramaniam.
64. The learned Senior counsel for the appellant would appropriately and appositely torpedo and pulverize such an argument as put forth on the side of the respondent by pointing out that no cross-examination was made as against the said stand of M.B.Subramaniam as PW.1 before the trial Court and that in Ex.A17, the name of Arunachala Gounder was found specified as the erstwhile owner and his name was replaced by the name of M.B.Subramaniam-the appellant. In Ex.A.17-the door number is found specified as 12/9 in ward No.12, which are different from the ones found in Ex.A6. According to the learned Senior Counsel for the appellant, the ward number and door number got changed. It is not the case of Ramasamy Gounder that M.B.Subramaniam got some other house purchased from Arunachala Gounder. Preponderance of probabilities would govern the adjudication in civil cases and hence, the respondent cannot try to make a mountain out of a molehill.
65. The learned Senior counsel for the appellant would convincingly argue that the so called deficiency in instituting the injunction suit by the appellant-M.B.Subramaniam, without a prayer for declaration of his title, got automatically cured by Ramasamy Gounder in his filing a suit for possession, recognising the appellant's possession over the suit property. In a suit for bare injunction what the Court has to find out is as to whether as on the date of filing of the suit for injunction, the appellant was in exclusive, established possession of the suit property.
66. Here Ramasamy Gounder clearly and categorically admitted the exclusive and established possession of the appellant-M.B.Subramaniam in the suit property and in such a case, based on such admission, injunction could be granted and I would like to reiterate the law point as found exemplified in my earlier judgment reported in 2007(4) CTC 70 Chinna Nachiappan and another vs. PL.Lakshmanan and also point out that in that suit, the exclusive and established possession of the plaintiff was not admitted by the defendant therein. But here, the exclusive and established possession of the appellant in the suit property was admitted by Ramasamy Gounder and the latter sought for recovery of possession on the ground of alleged subsisting tenancy, which he failed to establish. Accordingly, the substantial questions of law are answered as under:-
Substantial question of law (1) is answered to the effect that Arunachala Gounder and Ramaswamy Gounder have not proved that Ex.A6 is a void document and accordingly Arunachala Gounder had no unilateral right to execute Ex.B1, without cancelling Ex.A6.
Substantial question of law (2) is decided to the effect that Ex.A6 is not proved to be a void document as put forth by Ramasamy Gounder.
Substantial question of law (3) is answered to the effect that both the Courts are perverse in appreciating the evidence and in giving a finding in favour of Ramasamy Gounder.
Substantial question of law (4) is answered to the effect that the suit filed by M.B.Subramaniam is bad for want of prayer for declaration of title. however, in view of admission of Ramasamy Gounder that the appellant is in exclusive and established possession of the suit property, permanent injunction could be granted in favour of Subramaniam-the appellant herein.
67. In view of the ratiocination adhered to in deciding the aforesaid substantial questions of law, both the second appeals are allowed, setting aside the common judgments and decrees of both the Courts below and consequently O.S.No.410 of 2004 filed by Ramasamy Gounder is dismissed and O.S.No.14 of 2000 is decreed, granting injunction. However, there is no order as to costs.
Msk To
1. The Subordinate Court, Tiruppur,
2. The District Munsif cum Magistrate Court, Palladam