Muthu v. /Plaintiffv1. Chinnaswamy2. Ammulu3. Vaithi4. Thaiyyal Nayaki5. Perumal

In the High Court of Judicature at MadrasDated:18-01-2007CoramThe Honourable Mr.Justice A.C.ARUMUGAPERUMAL ADITYANSecond Appeal No.278 OF 1997Muthu..Appellant/Plaintiffv1. Chinnaswamy2. Ammulu3. Vaithi4. Thaiyyal Nayaki5. Perumal..Respondents/Defendants2,3,5,6 & 4 Second appeal filed under Section 100 of CPC against thejudgment and decree dated 30.4.1996 made in A.S.No.142 of 1990 onthe file of the Subordinate Court, Ariyalur reversing theJudgment and Decree dated 21.2.1990 made in O.S.No.471 of 1985on the file of District Munsif's Court, Ariyalur.For Appellant: Mr.M.S.Krishnan for M/S Sarvabhauman AssociatesFor Respondents : No appearance. ---JUDGMENTThe plaintiff in O.S.No.471 of 1985 on the file of Court ofDistrict Munsif, Ariyalur who has succeeded his case before thetrial Court, having lost his case before the Court of SubordinateJudge, Ariyalur in the appeal preferred by the defendants, is theappellant herein.2.The short facts of the case of the plaintiff in theplaint relevant for the purpose of deciding this appeal are asfollows:The suit is for declaration of title and for consequentialpermanent injunction. The plaintiff is the absolute owner of theplaint schedule property, which was purchased by him on 21.9.1985 https://hcservices.ecourts.gov.in/hcservices/ for a sale consideration of Rs 6,000/- from one KulanthaiveluPadaiyachi. From the date of purchase itself, the plaintiff isin possession and enjoyment of the suit property. 66 cents on theeast of the suit property belongs to the plaintiff. Only for theconvenient enjoyment of his property, he had purchased the suitland which is situated on the east of 0.66 cents land. Thedefendants are brothers. The defendants have no land adjacent tothe suit land. There is a long standing enmity prevailingbetween the plaintiff and the defendants. Only to harass theplaintiff, the defendants trespassed into the suit property on20.10.1985 and attempted to cut and remove the standing cropstherein. The said attempt of the defendants thwarted by timelyintervention of the plaintiff. The defendants are denying thetitle of the plaintiff to the suit property. The defendantsclaim that they have purchased the suit property. Even if thereis any sale deed in favour of the defendants, it is only nominaland it will not bind the plaintiff. Hence the plaintiff hasfiled the suit. 3. The second defendant has filed a written statementadopted by the other defendants as follows: The sale deed dated21.9.1985 said to have been in the name of the plaintiff is thefraudulent document. It is a sham and nominal document. Nowunder the above said sale deed, the plaintiff cannot claim anyright or title in respect of the suit property. The vendor ofthe plaintiff viz., Kulanthaivelu had no right or title toexecute the sale deed dated 21.9.1985 in respect of the suitproperty in favour of the plaintiff. The defendants have neithermade any attempt to trespass into the property nor made anyattempt to cut and carry away the standing crops. The sale deeddated 21.9.1985 in favour of the plaintiff is void document.After knowing that the defendants have purchased the suitproperty, the plaintiff had created the document dated 21.9.1985along with his vendor Kulanthaivelu only for the purpose offiling this case. Out of 2 acre 10 cents, 75 cents in SurveyNo.418/2 originally belonged to one Duraiswamy, his wifeMeenkashi Ammal and their son Kulanthaivelu. The four boundariesfor the said property are as follows: Northern boundary for thesuit property is the land belonging to Sivan Temple; easternboundary for the suit property is land belonging to Subbarayan;Southern boundary for the suit property is a road and westernboundary for the suit property is the land belonging to Muthu(Plaintiff). The entire 75 cents in the suit survey numberproperty was sold by the above said Duraiswamy, his wifeMeenakshi Ammal and their son Kulanthaivelu under the saleagreement dated 4.2.1985 for a sum of Rs.29,000/- On the date ofagreement itself, the possession of the above said 75 cents washanded over to the defendants . As per the recitals in the saidsale agreement dated 4.2.1985, the defendants have paid a sum ofRs 9,000/- to their vendor . Out of the balance of sale https://hcservices.ecourts.gov.in/hcservices/ consideration of Rs.20,000/- on 16.6.1985 , a sum of Rs.5,000/-was paid by the defendant to their vendor and the balance of Rs15,000/- was paid by the defendants to their vendor on 20.9.1985ie., on the date of registration of the sale deed before theRegistrar. The defendants have raised crops in the said land andharvested the same, afterwards they have raised black gram in thesuit land. After knowing full well the execution of the saleagreement and about the registration of the sale deed dated29.9.1985 in pursuance of the sale deed dated 4.2.1985, theplaintiff in connivance with one of the vendors of thedefendants viz Kulanthaivelu have created a sale deed in respectof the suit property on 21.9.1985. After the transfer ofpossession in favour of the defendants, mutation has beeneffected and patta was also granted in favour of the defendants.Hence, the suit is liable to be dismissed.4. The plaintiff has filed a reply statement dening theaverments in the written statement.5.. On the above pleadings the trial Court had framed sevenissues. The plaintiff has examined himself as P.W.1 and alsoexamined P.W.2 and P.W.3 on his side. The second defendant hasexamined himself as D.W.1 and also examined D.W.2 to D.W.5 ontheir side. Exs P1 to P7 were marked on the side of the plaintiffand Exs B1 to B6 were marked on the side of the defendants.6. The suit was decreed on 27.8.1997. On an earlieroccasion, against the decree and Judgment an appeal waspreferred before the Court of Subordinate Judge, Ariyalur inA.S.No.145 of 1987 and as per the Judgement of the firstappellate Court dated 18.11.1989, the matter was remanded to thetrial Court and after remand, D.W.6 Balakrishnan was examined onthe side of the defendants but no new document was produced oneither side and no further witness was examined on the side ofthe plaintiff.7. After going through the documentary and oral evidence, thelearned trial Judge has decreed the suit with costs. Aggrieved bythe findings of the learned trial Judge, the defendants havepreferred an appeal before the Court of Subordinate Judge,Ariyalur in A.S.No.142 of 1990 who after due deliberation on therespective contentions of the parties, has allowed the appealthereby setting aside the decree and judgment of the learnedfirst appellate Court in A.S.No.142 of 1990 thereby dismissingthe suit in O.S.No.471 of 1985 on the file of the Court ofDistrict Munsif, Ariyalur. Aggrieved by the findings of thelearned Subordinate Judge, Ariyalur, the plaintiff has preferredthis second appeal. https://hcservices.ecourts.gov.in/hcservices/

8. The substantial question of law involved in this appealis" Whether the lower Appellate court iscorrect in law reversing the well consideredjudgment and decree of the trial Courtwithout adverting to the finding of thetrial Court and without rendering a findingthat the conclusion rendered by the trialCourt are erroneous?9. The Point:The plaintiff claims his right and title in respect of the suitproperty measuring 0.16 cents out of 2 acres 10 cents in SurveyNo.418/2 in Pellakurichi Village, Ariyalur Taluk. EX A1 is thesale deed in respect of the plaint schedule property measuring0.16 ½ cents in suit survey No. Property dated 21.9.1985 executedby Kulanthaivelu , son of Duraisamy Padaiyachi. The above saidsale deed was registered on 27.9.1985.To show the possession inrespect of the suit property, the plaintiff has filed Ex A2joint patta in favour of the plaintiff and his vendorKulanthaivelu dated 12.5.1986. Exs A3 and A4 are the land taxreceipts in favour of the plaintiff dated 20.3.1986 and 8.2.1987respectively. But Exs A2, A3, A4 are all subsequent to the filingof the suit in the year 1985. Ex A5, is the adangal extract forFasli 1394 which shows that one Kumarasamy had raised crops in2.6 acres. So it is clear that Ex A5 is not relating to the suitproperty. In the cross examination dated 14.7.1987, the plaintiff(P.W.1) would admit that Kumaraswamy mentioned in Ex A5, is thegrand father of his vendor under Ex A1 Kulanthaivelu and thatKumarasamy died some 15 years back and Ex A5 is relating to Fasli1394 = to the English Calendar era 1984. So Ex A5 is of no useto prove the case of the plaintiff as to show his vendorKulanthaivelu was in possession of the suit property immediatelybefore the execution of Ex A1 sale deed. EX A7 is relating toFasli 1395 = to English Calendar era 1985. It shows that theplaintiff and his vendor Kulanthaivelu have cultivated 0.29.5hectares of land in Survey No.418/2A and were in possession ofo.26.5 hectares in Survey No.418/2B. But the suit survey Numberis 418/2. It is not known when survey Number 418/2 was subdivided into 418/2A and 418/2B. There is absolutely no documentproduced by the plaintiff to show that his vendor Kulanthaiveluwas in possession and enjoyment of 0.16 1/2cents in Survey Number418/2 in the suit property. 9 a) The vendor of the plaintiff was examined as P.W.2 .The evidence in the cross examination throws some light inrespect of his title in respect of the suit property. P.W.2 ,the vendor Kulanthaivelu of the plaintiff would trace his titleunder an oral partition between him and his father. According to https://hcservices.ecourts.gov.in/hcservices/ him, the oral partition between them took place three yearsprior to his deposition in the Court, ie.,it must be around1984 or so. But he would admit that there is no document to showthat a partition took place between them. He would further saythat the total extent of the property partitioned was 33 centsand it was his ancestral property and he was allotted western 16½ cents and his father was allotted eastern 16 ½ cents. Hewould further state that 16 ½ cents in the eastern portion wassold by his father and mother and that he has no right in theeastern 16 ½ cents and that first and second defendants havepurchased 16 ½ cents from his father and mother and that he hadsold remaining 16 ½ cents to the plaintiff. But he has not handedover any patta to the plaintiff He would specifically deposethat in Ex A1, he has mentioned that the property sold under ExA1 was allotted to him towards his share in the partition. Theabove said deposition is diametrically opposite to the recitalsin Ex A1. In Ex A1, there is no mention about the partitionbetween Kulanthaivelu(P.W.1) and his father. If Kulanthaiveluwas in possession and enjoyment of 16 ½ cents in the plaintschedule survey number property, consequent to the alleged oralpartition between him and his father in or about 1984, certainlythe mutation would have been effected and land tax would havebeen collected for 16 ½ cents separately from Kulanthaivelu(P.W.1) and also from his father. But the document Ex A3 to A7are all subsequent to Ex A1 sale deed. 9b) Further it is pertinent to note from Ex A1 sale deedthat the possession of 16 ½ cents was handed over to theplaintiff only on the date of execution of the sale deed ie., on21.9.1985. But P.W.1(plaintiff) in his evidence in the chiefexamination has categorically stated that even before theexecution of the sale deed, the possession was handed over to himon 17.9.1985 by his vendor . But Ex A1 is dated 21.9.1985 whereinit has been stated that only on the date of execution of the saledeed, the possession was handed over to the plaintiff. So as perthe recitals in Ex A1 sale deed, it is clear that what P.W.1 hasdeposed before the Court to the effect that he is in possessionof the suit property from 17.9.1985 itself cannot be true.9c) On the other hand, the defendants have produced Ex B1 toshow that they have purchased 75 cents out of 2 acres 10 cents insurvey No.418/2. The executants of Ex B1 sale deed areDuraiswamy , his wife Meenakshi Ammal and their sonKulanthaivelu. Ex B5 is the settlement deed dated 3.10.1978 infavour of Meenakshi Ammal, the mother of Kulanthaivelu in respectof 41 cents out of 2 acres 10 cents in Survey No.418/2. Ex B5 isthe settlement deed executed by the brothers of Meenakshi Ammal.A life estate has been given under the settlement deed in favourof Meenakshi Ammal and after her life , the property must devolveon her male children absolutely. It is well settled proposition https://hcservices.ecourts.gov.in/hcservices/ of law that an absolute gift made subject to a conditionrestricting alienation the condition would be void. Re Dugdale(1888) 38 Ch D176; Nabob Amiruddaula v Nateri (1876) 6Mad HC 356(Mahomedan Law); Anantha v Nagamuthu(1882))ILR 4 Mad200 (Hindu Law);Ali Hasan v Dhirja (1882)ILR 4 All 518;Bhaira vParemshri (1885) ILR 7 All 516; Moulvi Muhammad v Fatima Bibi(1886)ILR 8 All 39, 12 IA 159 (Mahomedan law); Muthukumara vAnthony (1915) ILR 38 Mad 867,24 IC 120 (Hindu Law); Narayanan vKannan(1884) 7 Mad 315 (Hindu Law-condition restrainingpartition)Jagdeo Sharma v Nandan Mahto AIR 1982 Pat 32.See note"restraint against alienation in a gift under s 10.Mkund v Rajrup (1970) 4 ALLL IJ 708;Ma Yin Hu v Ma Chit May(1929)ILR 7 Rang 306, 119 IC737,AIR 1929 Rang 226.Thakur Raghunath Ji Maharan v Ramesh Chandra (2201)5 SCC 18, AIR2001 SC 2340 : State of Uttar Pradesh v Banshi Dhar AIR 1974 SC1084K.Balakrishna v K.Kamalam AIR 2004 SC 1257 para 11(2204) 1 SCC5811997(2)SCC 255. There is no prohibition in law that ownership in property cannotbe gifted without its possession and right of enjoyment.10. The learned counsel appearing for the appellant relyingon a decision reported in V.Parvathy-v-Ramakrishna Mission rep.byduly authorised Power Agent Swami Amirthanantha and four others(2001-3 L.W.1 182) and contended that while reversing theJudgment and decree of the trial Court, the lower Appellate Courthas not given any reasoning. But a reading of the Judgment ofthe first Appellate Court will go to show that for the findingsof the appellate Court in setting aside the findings of the trialCourt, sound reasoning has been given in the Judgment of thefirst appellate Court. The learned counsel appearing for theappellant would contend that there is no finding in respect ofthe validity of Ex A1 document in the first Appellate Court'sJudgment. But on a perusal of paragraph 12 of the Judgment ofthe first Appellate Court will clearly go to show that there is adefinite finding by the learned first appellate Judge to theeffect that Ex A1 is not a genuine document. Hence the abovesaid dictum will not apply to the present facts of the case.11. Relying on a passage at Paragraph 18 of a decisionreported in V.Janarthanan-v- Alemelu Ammal (2007 1 MLJ 221) wherein it has been held as follows:" The third substantial question of law iswhether the lower appellate Court hasconsidered the oral and documentary evidenceand legal position while reversing theconsidered judgment of the trial Court. Whenthe lower appellate Court, while reversing theJudgment and decree of the trial Court had https://hcservices.ecourts.gov.in/hcservices/ ignored and misread important evidence onrecord and has failed to refer to theimportant features of the evidence and hasalso failed to give any reason to rebut thegrounds taken and the reasons assigned by thetrial Court and has rather failed to takestock of the entire materials on record, thatdecision is bad. While reversing the Judgmentof the trial Court, the first appellate Courtshould consider the evidence and alsoreasonings of the trial Court and give its ownreasons for not agreeing with the findings ofthe trial Court."The learned counsel would further contend that the firstappellate Court has not given any reasoning for setting aside thefindings of the trial Court. The above said dictum is factuallyin applicable because for rejecting Ex A1, the First appellateCourt has given reasoning at Paragraphs 11 and 12 of itsJudgment. The learned first appellate Judge has rejected Ex A1after applying the provisions contemplated under Section 53 A ofthe Transfer of Property Act and also on the basis of theevidence of P.W.1 which is diametrically opposite to the recitalsfound in Ex A1. Under such circumstances, it cannot be said thatthe first appellate Court has not considered the oral anddocumentary evidence while reversing the Judgment of the trialCourt.12. Ex B5 has been executed in the year 1978. After theenactment of Succession Act 1956, there is no bar for a woman toenjoy the property absolutely. There is no restriction under lawfor the absolute possession and enjoyment of an immovableproperty by a woman. So the condition imposed under Ex B5 Giftdeed conveying only a life estate of Meenakshi Ammal itself isvoid and Meenakshi Ammal gets absolute right over 41 cents inSurvey No.418/2. So the transfer of Meenakshi Ammal 's right in41 cents in Survey No.418/2 under Ex B1 in favour of Defendants 1and 2 is valid. But actually under Ex B1, 75 cents have beenconveyed by Duraisamy, Meenakshi Ammal and Kulanthaivelu. Even ifthe case of Kulanthaivelu that he and his father Duraisamy wereentitled to 37 cents in suit survey No.418/2 and that they orallypartitioned the above said 37 cents in Survey No.418/2 gettingeach 16 ½ cents,that too was conveyed under Ex B1 sale deed infavour of defendants 1 and 2 since Duraisamy , the father ofKulanthaivelu, and also Kulanthaivelu, the vendor of theplaintiff have executed Ex B1 sale deed along with MeenakshiAmmal. EX B1 is dated 20.9.1985. EX A1 is dated 21.9.1985.Duraisamy , Meenakshi Ammal and Kulanthaivelu have also enteredinto an agreement of sale in respect of 75 cents out of 2 acres10 cents in Survey No.418/2 on 4.2.1985 itself. So in pursuance https://hcservices.ecourts.gov.in/hcservices/ of the sale deed under Ex B2 alone Ex B1 sale deed was executed.Under Ex B2 sale agreement a sum of Rs.29,000/- was agreed to bepaid by the defendants 1 and 2 and a sum of Rs.9,000/- hasbeen paid by defendants 1 and 2 to the vendors viz.,Duraisamy,Meenakshi Ammal and Kulanthaivelu on 4.2.1985 itself andsubsequently on 16.6.1985 as per EX B3 endorsement a further sumof Rs.5,000/- has been paid by Defendants 1 and 2 to vendor underEx B2 and the balance of consideration of Rs.15,000/- was paid bythe defendants 1 and 2 to the vendors under Ex B1 sale deed viz.,Duraisamy, Meenakshi Ammal and Kulanthaivelu. Kulanthaivelu hasno right or title in respect of suit survey number property toexecute Ex A1 sale deed in lieu of Ex B2 and Ex B1.13. Section 53 A of the Transfer of Property Act runs asfollows:"53 A Part Performance:- Where any personcontracts to transfer for consideration anyimmovable property by writing signed by himor on his behalf from which the termsnecessary to constitute the transfer can beascertained with reasonable certainty,and the transferee has, in part performance ofthe contract, taken possession of the propertyor any part thereof, or the transferee, beingalready in possession, continues in possessionin part performance of the contract and hasdone some act in furtherance of the contract,and the transferee has performed or iswilling to perform his part of the contract,then, notwithstanding that where there is aninstrument of transfer, that the transfer hasnot been completed in the manner prescribedtherefor by the law for the time being inforce, the transferor or any person claimingunder him shall be debarred from enforcingagainst the transferee and persons claimingunder him any right in respect of the propertyof which the transferee has taken or continuedin possession, other than a right expresslyprovided by the terms of the contract;Provided that nothing in this section shallaffect the rights of a transferee forconsideration who has no notice of thecontract or of the part performance thereof."14. The plaintiff has taken a defence in this case that hehas no notice about Ex B2 agreement of sale. The plaintiff hasnot taken any encumbrance certificate for the property. If hewould have taken any encumbrance at least, he would have known https://hcservices.ecourts.gov.in/hcservices/ about Ex B1 sale deed which was executed on 20.8.1985 andregistered on 25.9.1985. Ex A1 was registered on 27.9.1985 ie., 2days after the execution of Ex B1 sale deed. So as per theprovision under Section 53 A of the Transfer of Property Act alsothe plaintiff cannot claim any right or title in respect of thesuit property under Ex A1 sale deed.15. Under such circumstances, I do not find any illegalityor infirmity in the Judgment of the first appellate Court inA.S.No.142 of 1990 on the file of the Court of Subordinate Judge,Ariyalur. Point is answered accordingly.16. In the result, the appeal is dismissed confirming thedecree and Judgment in A.S.No.142 of 1990 on the file of theCourt of Subordinate Judge, Ariyalur with costs through out. SgSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The Subordinate Judge,Ariyalur2. The District Munsif , Ariyalur.3. The Record Keeper, VR Section,High court , Madras.1 CC TO M/S SARVABHAUMAN ASSOCIATES, ADVOCATES SR 3290Second Appeal No.278 of 1997NG(CO)BP