G. Annamalai v. Dhanabhackiammal & Ors.

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22.1.2009CORAM:THE HON'BLE MR. JUSTICE K.MOHAN RAMSecond Appeal No.221 of 2000G. Annamalai .. Appellant/2nd Defendant-Vs-1.Dhanabhackiammal.. Respondent/Plaintiff2.Kathirvel Naicker .. Respondent/1st DefendantAPPEAL against the judgment and decree passed by thePrincipal District Judge, Tiruvannamalai, in A.S.No.166 of 1997 dated4.11.1999 confirming the judgment and decree passed in O.S.No.93 of1987 dated 26.9.1997 by the Principal District Munsif,Tiruvannamalai. For Appellant: Ms. P. Savitha for M/s. T.R. Rajaraman For Respondents: Mr. J. Ramakrishnan for M/s. Saravanakumar- - -J U D G M E N TThe unsuccessful second defendant in O.S.No.93 of 1987 onthe file of the Principal District Munsif Court, Tiruvannmalai,whose appeal in A.S.No.166 of 1997 has also been dismissed by thelearned Principal District Judge, Tiruvannamalai, is the appellantin the above second appeal. 2. For the sake of convenience, the parties are referred toas per their ranking in the suit. a. The case of the plaintiff, in-brief, is as follows:-The first defendant is the absolute owner of the suitproperty and he had entered into an agreement of sale with theplaintiff for a sale consideration of Rs.7350/-. Out of the saleconsideration, a sum of Rs.1000/- was paid as advance and thebalance was to be paid within one month and the plaintiff had to https://hcservices.ecourts.gov.in/hcservices/ get the sale deed executed by paying the balance of consideration.The agreement of sale also contained default clause under which it isprovided that if the plaintiff commits default, she should loosethe advance amount, whereas the first defendant commits default, hewill pay a sum of Rs.2000/- as damages. In the agreement, it hasbeen specifically stated that the first defendant had not enteredinto any agreement of sale previously in respect of the suitproperty. While so, the plaintiff came to know that the firstdefendant had executed a sale deed and the same was registeredaround 20.1.1987 in favour of the second defendant by using antedated stamp papers. The sale in favour of the second defendant is afraudulent transaction and such transaction has been brought out bythe defendants to defeat the rights of the plaintiff. Hence, theplaintiff issued a legal notice, dated 21.1.1987 to the defendantsand the same was received by the defendants but no reply wasreceived and hence the suit. 3. The first defendant remained exparte and did not contestthe suit. The second defendant contested the suit by filing awritten statement, inter alia, contending as follows:-4. The second defendant specifically denied each andeveryone of the allegations contained in the plaint and contendedthat he had negotiated with the first defendant for the sale of thesuit property and he had agreed to purchase the same even inDecember 1986. As per the understanding reached in December 1986,the sale deed was executed on 12.1.1987 by the first defendant infavour of the second defendant and the same was registered on thesame day. The value of the suit property will not exceed Rs.2000/-and hence, the first defendant has sold the suit property for thesale consideration of Rs.2000/- to the second defendant. It hasbeen specifically stated in the written statement that the sale deedwas executed and registered on 12.1.1987 itself. Since theguideline value was Rs.2880/-, the remaining stamp duty was paiddirectly and both the execution and registration of the sale deed wasdone on 12.1.1987 itself. On coming to know about the sale deed,dated 12.1.1987, the plaintiff taking advantage of the addiction ofthe first defendant to liquor by cheating him and promising to paymore money got the agreement of sale, dated 14.1.1987 executed in herfavour. In fact, either before or after the sale deed, dated12.1.1987 executed in favour of the second defendant there was noagreement of sale in favour of the plaintiff. Only after the seconddefendant purchased the suit property, the sale agreement, dated14.1.1987 has been created and therefore, the second defendant is abonafide purchaser for valuable consideration without notice of theagreement of sale between the plaintiff and the first defendant. Thesecond defendant has been in possession of the suit property and hecontinues to be in possession of the same. On the date of thealleged execution of the sale agreement, dated 14.1.1987, the firstdefendant had no title of the suit property and hence, the agreement https://hcservices.ecourts.gov.in/hcservices/ of sale, dated 14.1.1987 is not valid and it is not binding on thesecond defendant and therefore, the plaintiff is not entitled tospecifically enforce the said agreement. On the aforesaidpleadings, the second defendant sought for the dismissal of the suit. 5. After framing the appropriate issues, the suit wastaken up for trial by the trial Court and during the trial, theplaintiff has been examined as P.W.1 and one of the attesters ofthe sale agreement has been examined as P.W.2 and Exs.A1 to A4 havebeen marked but on the side of the second defendant, the seconddefendant has been examined as D.W1, the attester of Ex.B1 has beenexamined as D.W.2 and one Selvam has been examined as D.W.3 and thefirst defendant has been examined as D.W.4. 5a. The trial Court on a consideration of the oral anddocumentary evidence adduced in the case held that Ex.A1 saleagreement is true and genuine and the plaintiff was ready andwilling to perform her part of the contract, whereas the firstdefendant was evading to execute the sale deed having enteredinto sale agreement Ex.A1 but to defeat the right of the plaintiff,he had executed Ex.B1 sale deed in favour of the second defendant anddecreed the suit as prayed for.6. Being aggrieved by that the second defendant filed anappeal in A.S.No.166 of 1997 before the Principal District Judge,Tiruvannamalai, who on an independent consideration of the oral anddocumentary evidence adduced in the case, the findings and thereasonings recorded by the trial court, confirmed the judgment anddecree of the trial court and dismissed the appeal. Being aggrievedby that the second defendant has filed the above second appeal. 7. While admitting the above second appeal, the followingsubstantial questions of law have been framed:-a. When the registration of sale deed dated12.1.1987 is though subsequent, it relates back tothe date of the sale deed, is the Courts below rightin rejecting the sale deed ?b. Can the plaintiff succeed on the laches on thepart of the defendant when she has failed to prove herown case? 8. Though for deciding the aforesaid substantial questionsof law, it is necessary to consider the evidence adduced in thecase unfortunately, either side has not filed the typed set ofpapers containing the oral and documentary evidence. Hence, leftwith no other alternative, I had to look into the originals anddecide the case. https://hcservices.ecourts.gov.in/hcservices/

9. This Court is pained and constrained to point out thatin several second appeals, typed set of papers containing therelevant evidence/documents necessary for proper disposal of theappeals are not being filed which unnecessarily causes not onlyhardship to the court but causes delay in the disposal of theappeals. 10. Heard both. 11. The learned counsel for the appellant submitted thatthough Ex.B1 sale deed has been registered on 20.1.1987 since ithad been executed on 12.1.1987, the registration will relate backto the date of execution of the sale deed. The learned counselfurther submitted that since the sale deed has been validlyexecuted on 12.1.1987, i.e., prior to Ex.A1 sale agreement, dated14.1.1987 alleged to have been executed by the first defendant infavour of the plaintiff, the Courts below ought not to haveaccepted Ex.A1 sale agreement. The learned counsel further submittedthat had Ex.A1, dated 14.1.1987 been true, the first defendant wouldnot have sold the suit property to the second defendant for alesser value, namely, Rs.2000/-. 12. The learned counsel submitted that simply because Ex.B1sale deed had been written on stamp papers bearing two differentdates, it will not affect either its validity or it will notcreate any doubt about its genuineness. The learned counsel furthersubmitted that the plaintiff had not gone into the witness box andhence, the Courts below ought to have drawn an adverse inference.The learned counsel further submitted that when the first defendanthad already executed the sale deed on 12.1.1987 itself, he had noright or valid title over the suit property to execute Ex.A1 saleagreement, dated 14.1.1987 in favour of the plaintiff and this aspectalso has not been properly considered by the Courts below. 13. Countering the aforesaid submissions, the learnedcounsel for the plaintiff/first respondent submitted that when boththe courts below on a consideration of the evidence available onrecord have recorded a concurrent findings that Ex.A1 sale agreementis true and genuine and Ex.B1 sale deed had been executed by thefirst defendant in favour of the second defendant to defeat theright of the plaintiff and such findings are based on the evidenceavailable on record, this Court while exercising jurisdiction underSection 100 C.P.C., cannot interfere with the concurrent findingsof fact. The learned counsel submitted that though Ex.B1 sale deedhas been got written on stamp papers bearing two different datesand that itself may not invalidate the sale deed and that fact isone of the circumstances to be considered in the light of the otherevidence adduced in the case for judging the genuineness of Ex.B1sale deed and that is what has been done by the courts below. https://hcservices.ecourts.gov.in/hcservices/

14. The learned counsel submitted that the Courts below haveindependently considered the evidence on record and have pointedout that if really as pleaded by the second defendant Ex.A1 saleagreement had been executed by the first defendant in favour of theplaintiff while he was in a drunken state because of the fraudplayed upon him, nothing prevented the first defendant frominitiating any criminal action against the plaintiff or issuingnotice to the plaintiff immediately after coming to know about theobtaining of the sale agreement in favour of the plaintiff. Thelearned counsel further submitted that both the courts below havepointed out the fact that the first defendant had not issued anynotice to the plaintiff or initiated any criminal action against theplaintiff will itself show that the plea of the second defendantthat Ex.A1 sale agreement was fabricated could not be accepted. 15. The learned counsel further submitted that both thecourts below have pointed out that the first defendant for reasonsbest known to him had not contested the suit by filing a writtenstatement but had chosen to tender evidence in favour of the seconddefendant and if really the first defendant had not executed the saleagreement Ex.A1 in favour of the plaintiff, he would have contestedthe suit by filing a written statement. The learned counsel furthersubmitted that both the courts below have pointed out that if reallyEx.A1 was created by the plaintiff to defeat the rights of thesecond defendant after coming to know about the execution of thesale deed, dated 12.1.1987, the plaintiff could have ante dated thesale agreement and the fact that it is dated 14.1.1987 after thesale deed, dated 12.1.1987 itself shows that Ex.A1 was not createdas alleged by the second defendant. 16. The trial court considered the signature of the firstdefendant contained in Exs.A1, B1 and B4 and his deposition and hasopined that all the signatures look alike and the first defendantafter executing the sale agreement in favour of the plaintiff hadtendered evidence to support the case of the second defendant. Thelower appellate court has also pointed out that in the writtenstatement, it has been specifically stated that Ex.B1 sale deedwas executed and registered on 12.1.1987 itself, whereas Ex.B1 wasregistered on 20.1.1987 and the registration has been completed on2.2.1987. The lower appellate court has also held that the seconddefendant had not purchased the suit property under Ex.B1bonafidely and without notice. D.W.2 in his cross examination hadstated that he was not aware as to whether Ex.B1 sale deed wasregistered on the same day of its execution. Both the courts belowhave pointed out that the non-examination of the plaintiff as awitness in the case will not affect the case of the plaintiff sinceSection 120 of the Evidence Act permits either husband or wife togive evidence on behalf of the other. https://hcservices.ecourts.gov.in/hcservices/

17. In support of his aforesaid contentions, the learnedcounsel for the first respondent relied on the decision reported inAIR 2006 Supreme Court 2172 (Mst. Sugani v. Rameshwar Das & Anr.).In the said decision in paragraph 27, the Apex Court has laid downas under:-"If the question of law termed as asubstantial question stands already decided by a largerBench of the High Court concerned or by the PrivyCouncil or by the Federal Court or by the SupremeCourt, its merely wrong application on the facts of thecase would not be termed to be a substantial questionof law. Where a point of law has not been pleaded oris found to be arising between the parties in theabsence of any factual format, a litigant should notbe allowed to raise that question as a substantialquestion of law in second appeal. The mereappreciation of the facts, the documentary evidence orthe meaning of entries and the contents of the documentcannot be held to be raising a substantial question oflaw. But where it is found that the first appellatecourt has assumed jurisdiction which did not vest init, the same can be adjudicated in the second appeal,treating it as a substantial question of law. Wherethe first appellate court is shown to have exercisedits discretion in a judicial manner, it cannot betermed an error either of law or of procedurerequiring interference in second appeal. This Courtin Reserve Bank of India v. Ramkrishna Govind Morey(1976 (1) SCC 803) held that whether the trial courtshould not have exercised its jurisdiction differentlyis not a question of law question of law justifyinginterference." 18. Basing reliance on the aforesaid decision, the learnedcounsel submitted that mere appreciation of the facts and thedocumentary evidence cannot be held to be raising a substantialquestion of law and when it is not shown by the appellant that thefirst appellate court has not exercised its discretion in a judicialmanner, it cannot be termed to be an error either of law or ofprocedure requiring interference in the above second appeal. 19. The learned counsel also relied upon a decision of theApex Court reported in AIR 2006 Supreme Court 1975 (Gurdev Kaur andothers v. Kaki and others). In the said decision in paragraphs 69 to72, the Apex Court has laid down as under:- https://hcservices.ecourts.gov.in/hcservices/ "69. Now, after 1976 Amendment, the scope ofSection 100 has been drastically curtailed andnarrowed down. The High Courts would have jurisdictionof interfering under Section 100 C.P.C. only in acase where substantial questions of law are involvedand those questions have been clearly formulated inthe memorandum of appeal. At the time of admissionof the second appeal, it is the bounden duty andobligation of the High Court to formulate substantialquestions of law and then only the High Court ispermitted to proceed with the case to decide thosequestions of law. The language used in the amendedsection specifically incorporates the words as"substantial question of law" which is indicative ofthe legislative intention. It must be clearlyunderstood that the legislative intention was veryclear that legislature never wanted second appeal tobecome "third trial on facts" or "one more dice in thegamble". The effect of the amendment mainly,according to the amended section, was:(i) The High Court would be justified inadmitting the second appeal only when a substantialquestion of law is involved.(ii) The substantial question of law toprecisely state such question;(iii) A duty has been cast on the High Courtto formulate substantial question of law beforehearing the appeal; (iv) Another part of the Section is that theappeal shall be heard only on that question. 70. The fact that in a series of cases, thisCourt was compelled to interfere was because the truelegislative intendment and scope of Section 100C.P.C. have neither been appreciated nor applied. Aclass of judges while administering law honestlybelieve that, if they are satisfied that, in any secondappeal brought before them evidence has been grosslymis-appreciated either by the lower appellate courtor by both the courts below, it is their duty tointerfere, because they seem to feel that a decreefollowing upon a gross mis-appreciation of evidenceinvolves injustice and it is the duty of the HighCourt to redress such injustice. We would like toreiterate that the justice has to be administered inaccordance with law. https://hcservices.ecourts.gov.in/hcservices/

71. When Section 100 C.P.C. is criticallyexamined then, according to the legislative mandate,the interference by the High Court is permissible onlyin cases involving substantial questions of law. 72. The Judicial Committee of the PrivyCouncil as early as in 1890 stated that there is nojurisdiction to entertain a second appeal on theground of an erroneous finding of fact, however, grossor inexcusable the error may seem to be and they addeda note of warning that no Court in India has power toadd to, or enlarge, the grounds specified in Section100." 20. Basing reliance on the aforesaid decision, the learnedcounsel submitted that the second appeal could not become "thirdtrial on facts" or "one more dice in the gamble". The learnedcounsel submitted that there is no jurisdiction to entertain thesecond appeal on the ground of an erroneous finding of fact, however,gross or inexcusable the error may seem to be. The learned counselfurther submitted that when the findings of the Courts below arebased on an appreciation of the evidence on record and such findingsare based on the evidence on record and when such findings are notchallenged as perverse, this Court may not interfere with theconcurrent findings of fact. 21. I have considered the aforesaid submissions made oneither side, materials available on record and the decisions reliedupon by the learned counsel for the first respondent. 22. At the outset, it has to be pointed out that in thedecision of three Judges Bench of the Hon'ble Apex Court reported in(1991) 1 Supreme Court Cases 715 (Hamda Ammal v. Avadiappa Pathar and3 Others), it has been laid down as under:-"In view of Section 54 of the Transfer ofProperty Act after the execution of the sale deed withconsideration all the ingredients of sale are fulfilledexcept that in case of tangible immovable property thevalue of Rs.100 and upwards it can be made only byregistered instrument. Section 47 of the RegistrationAct makes it clear that after the registration it willrelate back to the date of execution of the sale deed.The act of registration is to be performed by theregistering authority. Thus the vendee gets rightswhich will be related back on registration from thedate of the execution of the sale deed."23. Though as laid down in the aforesaid decision, theregistration of a sale deed will relate back to the date of execution https://hcservices.ecourts.gov.in/hcservices/ of the sale deed, it has to be seen in this case, whether Ex.B1 saledeed was executed on 12.1.1987 with consideration or not. Only whenthe consideration recited in the sale deed is paid to the vendor bythe vendee, all the ingredients of sale are fulfilled except thatin case of tangible immovable property of the value of Rs.100 andupwards it can be made only by registered instrument. 24. In this context, it will be useful to refer to thepleadings contained in the written statement filed by the seconddefendant and oral testimony as D.W.1. Though the pleadingscontained in paragraph 7 of the written statement is extractedextensively in the preceding paragraphs of this judgment, at the costof repetition, the same is being repeated as it is vital forarriving at a just decision in the above second appeal. In paragraph7 of the written statement, the second defendant has specificallypleaded that the first defendant sold the property to the seconddefendant for Rs.2000/-; on 12.1.1987 the document was written and onthe same day it was registered and it has been again reiterated thatboth the execution of the document as well as the registration tookplace on 12.1.1987. But in his evidence, the second defendant asD.W.1 has stated as follows:- On 12.1.1987, he purchased the suitproperty under Ex.B1 sale deed for a consideration of Rs.2000/-;eight days after the document was written, it was registered; sincethere was little shortage of money, registration was not done on thesame day. He has further deposed that the first defendant receivedthe consideration of Rs.2000/- on the date of registration. Theaforesaid deposition of D.W.1 is totally contrary to the aforesaidpleadings contained in the written statement. Thus, it is clearthat though in Ex.B1 sale deed it is recited that the vendor, thefirst defendant had received the sale consideration of Rs.2000/- fromthe vendee the second defendant, the same is not true in the light ofthe aforesaid evidence of D.W.1. It is further recited in Ex.B1that on 12.1.1987 itself, the possession of the suit property hadbeen handed over to the second defendant. When admittedly, thesale consideration had not been paid on 12.1.1987, it is difficultto believe that the first defendant would have handed over thepossession of the suit property to the second defendant. As observedby the Apex Court in the decision reported in (1991) 1 SCC 715,only when the sale deed is executed with consideration, all theingredients of sale could be said to be fulfilled, though theregistration of the same is postponed to a subsequent date. Since,as pointed out above, Ex.B1 was not supported by consideration as on12.1.1987, the subsequent registration of Ex.B1 on 20.1.1987 cannotrelate back to 12.1.1987 since on 20.1.1987 only the consideration ofRs.2000/- was paid, according to D.W.1.25. It is pertinent to point out that D.W.2 is admittedlythe cousin brother of D.W.1 and he too has not spoken to anythingregarding passing of consideration on 12.1.1987. D.W.3 is thebrother-in-law of the first defendant and D.W.4 is the first https://hcservices.ecourts.gov.in/hcservices/ defendant and as such it has to be pointed out that no independentwitness has been examined on the side of the defendants. D.W.3 inhis evidence has categorically stated that on the date of executionof Ex.B1, the second defendant had no money to complete the sale andhence, he said that registration could be done after one week.D.W.4 in his cross examination has stated that he does not knowwhether he executed any agreement in favour of the plaintiff. Hehas further deposed that he does not know whether the signature foundin Ex.A1 is his signature. The aforesaid evidence of D.W.4 isevasive in nature. 26. One another vital aspect which requires to be pointedout is that in the written statement, the second defendant haspleaded that even in the month of December 1986, the sale of thesuit property was negotiated between him and the first defendant andit was finalised in December 1986 itself and the sale deed wasexecuted on 12.1.1987. But the second defendant in his deposition asD.W.1 has stated that he had not entered into any agreement beforethe execution of the sale deed and only just two days prior to Ex.B1,the talk of the sale of the suit property arose. The aforesaiddeposition of D.W.1 is totally contrary to the aforesaid pleadingscontained in the written statement. It is also seen from theevidence of D.W.4, the first defendant, though the sale deed wasexecuted on 12.1.1987, the same was not registered on the same day,since the second defendant had little shortage of money. 27. It is hard to believe that D.W.2, the first defendantwould have executed Ex.B1 sale deed and handed over the possessionof the suit property without receiving the sale consideration on12.1.1987. This circumstance coupled with the fact that Ex.B1 saledeed has been executed on stamp papers bearing different dates andthough the jurisdictional Sub Registrar's office is Vettavalamwithin whose jurisdiction, the suit property lies but the sale deedEx.B1 got registered at the office of the District Registrar,Tiruvannamalai and all these facts really raise a doubt about thegenuineness of Ex.B1 sale deed and such doubt entertained by thecourts below cannot be said to be erroneous and hence, in theconsidered view of this Court, the concurrent findings recorded bythe courts below cannot be said to be either erroneous or perverse.28. It has to be pointed out that the courts below have on aconsideration of the evidence on record found that the plaintiffhas proved his case and when such findings are based on evidence, itcannot be said that such findings are erroneous. It cannot be saidthat the plaintiff has succeeded on the laches on the part of thedefendants. It has to be pointed out that the plaintiff has adducedacceptable evidence by examining the attester P.W.2 to prove the dueexecution of Ex.A1 sale agreement by the first defendant. Theconduct of the first defendant in not contesting the suit by filinga written statement and the conduct of the first defendant in not https://hcservices.ecourts.gov.in/hcservices/ even issuing a notice or lodging a complaint against the plaintifffor the alleged fabrication of Ex.A1 sale agreement has been takennote of by the courts below and accordingly have rejected thedefence case and accepted the genuineness of Ex.A1 and such findingscannot be said to be erroneous. 30. As rightly contended by the learned counsel for theplaintiff basing reliance on the aforesaid decisions rendered bythe Apex Court even if the findings of the courts below areerroneous, the same cannot be interfered with while exercising powerunder Section 100 C.P.C. in the second appeal. In this case, aspointed out above, the findings of the courts below are based onevidence and such findings cannot be interfered with. Accordingly, the above substantial questions of law areanswered against the appellant and the second appeal fails and thesame is dismissed with costs throughout. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.rnbTo1.The Principal District Judge, Tiruvannamalai. 2.The Principal District Munsif, Tiruvannamalai. 3.The Section Officer, V.R.Section, High Court, Madras.+ 1 CC To M/s.Sarvabhauman Associates, Advocate SR NO.3108+ 1 CC To Mr.T.R.Rajaraman, Advocate SR NO.3003S.A.No.221 of 2000 KA {CO}TP/28.4.2009.