K.Subramanian v. Ramachandra Naidu

IN THE HIGH COURT OF JUDICATURE AT MADRASDate: 20.10.2009CORAM:THE HONOURABLE MR. JUSTICE M.JEYAPAULSecond Appeal No.1405 of 1995K.Subramanian ... Appellant /PlaintiffVs. Ramachandra Naidu ... Respondent/DefendantPrayer:The Second Appeal filed under Section 100 of the Code of CivilProcedure judgment and decree of the learned Subordinate Judge,Thiruvannamalai Sambuvarayar District made in A.S.No.65 of 1994 dated27.01.1995 in confirming the judgment and the decree of the learnedDistrict Munsif, Thiruvannamalai passed in O.S.No.825 of 1982 dated14.02.1994.For Appellant : Mr.N.RaghupathiFor Respondent: Mr.T.R.RajaramanJ U D G M E N TThe unsuccessful plaintiff before both the Courts below is theappellant herein.2. This suit was filed for declaration of title and recovery ofpossession. The plaintiff would contend that Kuppu Mudaliar got thesuit property under Partition Deed dated 11.06.1962. By way of anunregistered Settlement Deed dated 20.12.1963, he settled the suitproperty in favour of his first wife Navaneethammal towards hermaintenance. As the said document was not duly stamped, it wasimpounded by the Revenue Divisional Officer and the stamped duty andpenalty was paid by Navaneethammal. Thereafter, the plaintiffpurchased the said property under the Sale Deed dated 17.12.1981,from the said Navaneethammal. Claiming to be the rightful owner ofthe suit property under the aforesaid Sale Deed dated 17.12.1981, thesuit was laid by the plaintiff not only for declaration of title, butalso for recovery of possession.3. The defendant set up a plea in the written statement that hepurchased the suit property from the original owner Kuppu Mudaliar byvirtue of the Sale Deed dated 29.10.1971. It is contended by thedefendant that the Settlement Deed dated 20.12.1963, is an anti-dated, forged and fabricated document. Old stamp paper was used withthe ulterior motive to grab the suit property. It is the contentionof the defendant that the Settlement Deed dated 20.12.1963, does notconvey right and title with respect to the suit property andtherefore, the plaintiff cannot claim title to the suit property.4. Both the Courts below returned a finding that the SettlementDeed dated 20.12.1963, is an anti-dated, forged and fabricated https://hcservices.ecourts.gov.in/hcservices/ document and therefore, it cannot be used even for any collateralpurpose.5. The following substantial questions of law were framed at thetime of admission of the Second Appeal:1.Whether the Courts below are justified in notbelieving the Maintenance Deed Ex.A-3 executed on20.12.1963 which is admitted by the defendant.2.Whether the Courts are justified in not consideringthat the Sale Deed Ex.A2 said to have been executedby Navaneethammal is not supported by valid andproper consideration.3.Whether the Courts below erred in not consideringthat the plaintiff is the bona fide purchaser ofsuit property without notice of encumbrances andcharge over the property.4.Whether the Courts below have correctly decided thequestion of estoppel against the defendant havingknowledge about the prior execution of MaintenanceDeed and charge over the suit property.6. On a thorough perusal of the judgments of the Trial Court andthe First Appellate Court and the points urged across the bar, thesubstantial questions of law arisen in this Second Appeal are recastas follows:1.Whether the Settlement Deed dated 20.12.1963 beingan unregistered document could convey any right ortitle with respect to the suit property?2.Whether the defendant was estopped from claimingright and title to the suit property when he hadthe knowledge of the prior execution ofMaintenance Deed by his vendor in favour of hiswife Navaneethammal.7. The learned counsel appearing for the appellant drawing theattention of this Court to the discussion embarked by the Trial Courtas well as the First Appellate Court would submit that uncharitablecomments have been made by the Courts below on the Settlement DeedEx.A.3, which was executed by Kuppu Mudaliar in favour of his wifeNavaneethammal. The Trial Court as well as the First Appellate Courtfailed to consider Ex.A.3 for collateral purpose quite against thespirit of proviso (a) to Section 35 of the Indian Stamp Act, 1899even when the stamp duty was duly paid in the impounding proceedingstaken by the Revenue Divisional Officer, long prior to the litigationemanated between the parties. The Settlement Deed Ex.A.3 can verywell be looked into for the collateral purpose of establishing thenature of right enjoyed by the plaintiff, he would submit. It is hisfurther submission that the defendant who was aware of the existenceof the Settlement Deed Ex.A.3 had been docile without taking anyaction, even after the plaintiff purchased the suit property on thestrength of the Settlement Deed Ex.A.3 executed by Kuppu Mudaliar infavour of his wife Navaneethammal. Therefore, he would submit thatthe judgment of the Courts below warrants interference. https://hcservices.ecourts.gov.in/hcservices/

8. The learned counsel appearing for the respondent wouldstrenuously submit that the Settlement Deed Ex.A.3 has been factuallyestablished that it is an anti-dated, forged and fabricated documentbefore the Trial Court. Such a factual finding cannot be upset at theSecond Appellate stage. Even assuming for the sake of argument thatEx.A.3 was really executed by Kuppu Mudaliar in favour of his wifeNavaneethammal, the said document being an unregistered documentwould not convey any right or title in favour of the settlee underthe document. The settlor cannot convey right or title which he didnot possess under the Deed of conveyance. It is his furthersubmission that the appellant/plaintiff being the very brother ofKuppu Mudaliar has virtually purchased litigation by concocting adocument as though title had flowed to him through Navaneethammal,who had no title to the suit property. The Principle of Estoppel doesnot operate as it has been established that the defendant has been incontinuous possession and enjoyment of the suit property ever sincehis purchase from the original owner Kuppu Mudaliar.9. On a thorough perusal of the evidence let in by either of theparties, the Trial Court as well as the First Appellate Courtreturned a finding that Ex.A.3, the alleged Settlement Deed is ananti-dated and fabricated document. It is the admitted case that thebeneficiary under the said Settlement Deed namely Navaneethammal wasvery much alive during the course of trial. The settlor KuppuMudaliar was also alive at that point of time. When there is acontroversy shrouding the subject Settlement Deed, in all fairness,the plaintiff should have summoned the settlor and the settlleebefore the Court to establish the execution of the controversialdocument Ex.A.3 Settlement Deed. Both the Courts below have rightlypointed out that the date of execution has been introduced at a laterpoint of time. In view of the facts and circumstances, the Court isnot inclined to upset the factual finding arrived at by the Courtsbelow that Ex.A.3 was an anti-dated and fabricated document. Such adocument cannot be made use of for any purpose before the Court oflaw.10. Even assuming for the sake of argument that Ex.A.3 wasreally executed in favour of Navaneethammal, the fact remains thatthe said document was not registered. Going by the tenor of thedocument, I find that it conveyed the right and title to the propertyto the settlee thereunder. AS per Section 17 of the Registration Act,1908 such a document shall be compulsorily registered. Theconsequence thereof is adumbrated under Section 49 of the said Act. Adocument which is required to be registered under Section 17 of theRegistration Act, if not registered shall not, in any way, affect theimmovable property comprised in the said document. In other words,Ex.A.3 is simply a trash without affecting the right and title of thesuit property. Of course, as per provisio (a) to Section 35 of theIndian Stamp Act, an instrument chargeable with duty shall beadmitted in evidence if the duty chargeable under the document hasbeen duly paid. The fact remains that the Revenue Divisional Officerhaving impounded the Settlement Deed on 02.02.1976, has collectedstamp duty and penalty. Such document can be admitted only forcollateral purpose. Here is the case where the plaintiff has soughtfor declaration of title based on the Sale Deed in his favour,executed by the predecessor in title, on the strength of an https://hcservices.ecourts.gov.in/hcservices/ unregistered Settlement Deed Ex.A.3. Ex.A.3 cannot be banked on forthe purpose of establishing the title to the property. Therefore, thefirst question of law framed by this Court is answered against theappellant/plaintiff.11. Coming to the application of the principle of estoppel tothe case on hand, it is found that the defendant having purchased thesuit property from the rightful owner namely Kuppu Mudaliar on29.10.1971 has been in possession and enjoyment of the suit propertyand asserted his domain over the same. There is no evidence to showthat the defendant having come to know of the Settlement Deedexecuted by Kuppu Mudaliar in favour of his wife and the subsequenttransaction between Navaneethammal and the plaintiff, slept over,giving scope for the plaintiff to assert his title over the suitproperty. The plaintiff got the Sale Deed executed on 17.10.1981from Navaneethammal. Within a short span of time, the defendant hadto counter the suit filed by the plaintiff. Therefore, the questionof application of the principle of estoppel as against the defendantin the above facts and circumstances of the case does not arise forconsideration. 12. The Courts below have rightly held that the plaintiff is notentitled for declaration of title and also for recovery ofpossession. There is no warrant for the interference with thejudgments of the Courts below. Therefore, confirming the judgments ofthe Courts below, the appeal stands dismissed. There is no order asto costs.Sd/Assistant Registrar/True Copy/Sub Assistant RegistrarvaTo1.The Subordinate Judge, Thiruvannamalai, Sambuvarayar District.2.TheDistrict Munsif, Thiruvannamalai.Copy toThe Section Officer, V.R.Section, High Court, Madras+1 CC to Mr.T.R.Rajaraman, Advocate Sr.55612S.A. No.1405 of 1995PA (CO)SRA 30/10/2009