Devasena Ammal v. K. Rathnavelu Mudaliar & Ors.

defendant, who was the plaintiff in O.S.No.787 of 1981 got one acreout of 2.16 acres in S.No.155/1 and an extent of 0.50 cents out of0.76 cents in S.No.155/2. The plaintiff got under the compromisedecree the suit property and other properties. The second defendantexecuted a sale deed in favour of the first defendant under Ex.B3,dated 26.8.1989 during the pendency of the suit and hence, the saidsale is hit by the doctrine of lis pendens contained under Section 52of the Transfer of Property Act. The plaintiff issued a noticeEx.A4 for which the first defendant alone sent a reply Ex.A5, whilethe second defendant did not send any reply. Thereafter, theplaintiff filed a suit for declaration of his title to the plaintschedule lands and for recovery of possession thereof from thedefendants and for future mesne profits from the date of suit tilldelivery of possession. 4. The second defendant remained exparte and did notcontest the suit. The first defendant contested the suit, interalia, contending as follows:-a. The settlement deed Ex.A1 executed in favour of theplaintiff had been cancelled by the settlor himself under Ex.B1dated 4.8.1981 and under another registered settlement deed Ex.B2Kuppusamy Mudaliar settled the suit property and other properties infavour of his daughter, the second defendant. In the deed ofrevocation Ex.B1 itself, the settlor had stated that while he wasunconscious his thumb impression was taken in certain documentsincluding the settlement deed in favour of the plaintiff and he wasnot a willing party to the settlement deed. Thereafter, KuppusamyMudaliar had executed a registered settlement deed on 9.8.1981under Ex.B2 in favour of the second defendant and the same wasimmediately acted upon. The plaintiff is not in possession of thesuit property. The first defendant had purchased the suitproperty for valuable consideration under Ex.B3 sale deed executedby the second defendant on 26.8.1989 and ever since the date ofpurchase, the first defendant is in possession and enjoyment byobtaining patta in her favour. 5. The material pleading which is relevant for deciding thesubstantial question of law that has been framed in the abovesecond appeal is contained in paragraphs 8 and 9 of the writtenstatement of the first defendant which reads as follows:-“ 8.This defendant was not a party to O.S.No.787 of 1981and any decree in that suit is not binding on this defendant.This defendant was not aware of any such Court proceedings and anysuch suit and only from the copy of the plaint this defendant hascome to know about that suit.9. This defendant is a bonafide purchaser for valuableconsideration and the sale deed in her favour is true and valid. https://hcservices.ecourts.gov.in/hcservices/ The second defendant had proper title and possession to conveythe land to the first defendant. The sale is not vitiated by thedoctrine of lis pendens.” On the aforesaid pleadings, the first defendant sought fordismissal of the suit. 6. On the aforesaid pleadings, the trial Court framed thefollowing issues:- a. Whether the sale deed executed by the second defendantin favour of the first defendant is true and is legally sustainable? b. Whether the second defendant has any right over thesuit property?c. Whether the deed of revocation, dated 4.8.1981 islegally sustainable? d. Is it true that the first defendant purchased for avaluable consideration ? e. Whether the sale dated 26.8.1989 is hit by the doctrineof lis pendens?f. Whether the plaintiff is entitled for declaration andpermanent injunction ?g. To what other reliefs?7. During trial, the plaintiff was examined as P.W.1 andExs.A1 to A5 were marked on the side of the plaintiff. On the sideof the first defendant, her manager one P.R. Ramanathan wasexamined as D.W.1 and Exs.D1 to D5 were marked. 8. The trial Court on a consideration of the oral anddocumentary evidence available on record held that Ex.B1, dated4.8.1981 executed by Kuppusamy Mudaliar revoking Ex.A1 registeredsettlement deed dated 25.6.1981 executed by the Kuppusamy Mudaliarin favour of his son, the plaintiff, is not valid and further heldthat Kuppusamy Mudaliar would not have validly executed Ex.B2settlement deed in favour of the second defendant. It has beenfurther held that Ex.A1 settlement deed is valid and granted adecree declaring the title of the plaintiff to the suit property.The trial Court further held that the sale deed executed by thesecond defendant in favour of the first defendant under Ex.B3during the pendency of the suit in O.S.No.787 of 1981 is hit by thedoctrine of lis pendens contained under Section 52 of the Transfer ofProperty Act and accordingly, granted a decree declaring the titleof the plaintiff to the suit property and for recovery of possession https://hcservices.ecourts.gov.in/hcservices/ and the determination of mesne profits was relegated to separateproceedings under Order 20 Rule 11 C.P.C.9. Being aggrieved by that the first defendant filedA.S.No.19 of 1997 before the Subordinate Court, Kanchipuram. Thelower appellate court on an independent consideration of the entireevidence on record and the findings and reasonings of the trialcourt confirmed the judgment and decree passed by the trial courtand dismissed the appeal. 10. Being aggrieved by that the first defendant has filedthe above second appeal. While admitting the above second appeal,the following substantial question of law has been framed:-“When the second respondent (second defendant)has sold the property for valuable consideration tothe appellant (first defendant) as early as 26.8.1989,will not the act of the second respondent amount to afraud in entering into a compromise with the firstrespondent and giving of the suit property to thefirst respondent on 9.8.1991. Will not the principlethat 'a decree obtained by collusion in a suit whichwas honestly begun' exclude the principle of lispendens under Section 52 of the Transfer of PropertyAct ?11. Heard both.12. At the outset, the learned counsel for theplaintiff/first respondent submitted that the aforesaid substantialquestion of law does not arise for consideration in the facts andcircumstances of the case as the appellant had neither pleaded noradduced any evidence to the effect that the compromise entered intobetween the second defendant and the plaintiff in O.S.No.787 of 1981on the file of the Additional District Munsif Court, Kanchipuram wasvitiated by fraud or collusion. 13. Mr.V.Ragavachari, learned counsel appearing for theappellant submitted that in as much as the appellant in herwritten statement had stated that “the sale is not vitiated by thedoctrine of lis pendens”, it should be construed that the appellanthad questioned the compromise entered between the second defendantand the plaintiff on the ground of fraud and collusion. The learnedcounsel further submitted that the pleadings in mofussil courtsin our country are loosely drafted and a liberal construction hasalways to be given to such pleadings. The learned counsel furthersubmitted that though the suit filed by the second defendant mighthave been filed bonafidely and it was contentious in the beginningbut after transferring the property in favour of the first defendantsince the second defendant had fraudulently entered into a compromise https://hcservices.ecourts.gov.in/hcservices/ with the plaintiff to defeat the rights of the purchaser, namely,the appellant, it cannot be said that the termination of the suit washonestly brought out in one of the visual modes and therefore,contended that the doctrine of lis pendens will have no application.14. The learned counsel further submitted that in thereply notice itself the appellant had questioned the validity of thesettlement deed Ex.A1 and in the reply notice the appellant hadclearly stated that she was not aware of the court proceedings whichwas pending between the plaintiff and the second defendant and sinceshe was the bonafide purchaser for valuable consideration, she wasimmediately put in possession and she had also obtained patta andshe is in possession of the property. The learned counsel furthersubmitted that in the plaint the details of compromise arrivedat between the plaintiff and the second defendant have not been setout and therefore, the first defendant had no opportunity to file adetailed written statement regarding the fraud committed by theplaintiff and the second defendant and regarding the collusionbetween them in arriving at a compromise.15. The learned counsel though referred to a number ofjudgments, all of them are not being referred to except the followingthree judgments which have got direct bearing on the substantialquestion of law to be decided in the above second appeal.a. Annamalai Chettiar v. Malayandi Appaya Naick andOthers ( (1906) 16 MLJ 372). b. Annamalai and Others v. Chellakutti (AIR 1963 Madras300).c. A. Palaniappa Mudaliar and others v. Sivanmalai Gounderand another (71 LW 391).16. The learned counsel relied upon a Full Bench decisionof this Court reported in (1906) 16 M.L.J. 372 (Annamalai Chettiarv. Malayandi Appaya Naick and Others). The question that wasreferred to the Full Bench was whether the doctrine of lis pendens,as embodied in Section 52 of the Transfer of Property Act applieswhen the suit during the pendency of which the transfer takes placeis subsequently compromised and a decree is given in pursuance of thecompromise, or, in other words, was the case of Vythinadayyan v.Subramanya (1889) I.L.R. 12 Mad. 439 rightly decided ?In the said decision, in paragraph 15 it has been laid asunder:-“The essence of the doctrine of lis pendensundoubtedly is that where a proceeding before a Courtexercising contentious jurisdiction is honestly brought https://hcservices.ecourts.gov.in/hcservices/ out to a termination in one of the modes which thelaw permits to be terminated by and a decision ofthe Court is obtained, such decision is binding uponall persons who claim title by virtue of a transferpending the litigation. With reference to thisunderlying principle there is no conceivable reasonfor attaching greater efficiency to a decisionarrived at after actual contest than to decisionsarrived at otherwise.”In the same decision, in paragraph 9 it has been observedas under:-“Where a litigation is pending between a plaintiffand a defendant as to the right to a particular estate,the necessities of mankind require that the decision ofthe court in the suit shall be binding, not only on thelitigant parties, but also on those who derive titleunder them by alienations made pending the suitwhether such alienees had or had not notice of thepending proceedings. If this were not so, there couldbe no certainty that the litigation would ever cometo an end.”In paragraph 13 of the very same decision, it has beenlaid down as under:-“I think Section 52 of the Transfer of PropertyAct should be construed as applying to the case of acompromise decree in the absence, of course, ofanything in the nature of fraud or collusion. Thisseems to be the natural construction of the sectionand it is in accordance with the principles on whichthe doctrine of lis pendens is based.”17. The learned counsel for the appellant relied upon aDivision Bench of this Court reported in A.I.R. 1963 Madras 300 =(1963) 1 MLJ 154 (Annammal and Others v. Chellakutti). In thatdecision, the Division Bench has followed the legal principles laiddown in the aforesaid Full Bench decision of this Court. Thelearned counsel for the appellant also relied upon a decision of thelearned Single Judge of this Court reported in 71 L.W. 391 ( A.Palaniappa Mudaliar and Others v. Sivanmalai Gounder and another).In that decision the learned Judge has referred to and relied uponthe aforesaid Full Bench decision of this Court and other decisions.In that decision it is observed that the only suit now excluded fromthe Doctrine of Lis Pendens is a collusive suit. 18. The learned counsel also relied upon a decision of theApex Court reported in 2008 (15) SCALE 158 (Bachhaj Nahar v. Nilima https://hcservices.ecourts.gov.in/hcservices/ Mandal and Another). In that decision, the Hon'ble Apex Court hasreferred to and relied upon the following passage from the decisionof the Constitution Bench of the Apex Court in Bhagwati Prasad v.Shri Chandramaul (MANU/SC/0335/1965):-“If a plea is not specifically made and yetit is covered by an issue by implication, and theparties knew that the said plea was involved in thetrial, then the mere fact that the plea was notexpressly taken in the pleadings would notnecessarily disentitle a party from relying upon ifit is satisfactorily proved by evidence. The generalrule no doubt is that the relief should be foundedon pleadings made by the parties. But where thesubstantial matter relating to the title of bothparties to the suit was touched, though indirectly oreven obscurely in the issues, and evidence has beenled about them then the argument that a particularmatter was not expressly taken in the pleadings wouldbe purely formal and technical and cannot succeed inevery case.” In the very same decision, the Apex Court has also referredto the decision of the Apex Court rendered in the case of Ram SarupGupta (dead) by LRs. Bishun Narain Inter College (MANU/SC/0043/1987),wherein the principle laid down in the judgment of the ConstitutionBench was reiterated. In the said decision, it is observed asunder:-“It is not desirable to place undue emphasison form, instead the substance of the pleadings shouldbe considered. Whenever the question about lack ofpleading is raised the enquiry should not be so muchabout the form of pleadings, instead the court mustfind out whether in substance the parties knew thecase and the issues upon which they went to trial.Once it is found that in spite of deficiency in thepleadings, parties knew the case and they proceeded totrial on those issue by producing evidence, in thatevent it would not be open to a party to raise thequestion of absence of pleadings in appeal.”19. Only basing reliance on the aforesaid observationcontained in paragraph 13 of the Full Bench Decision, the learnedcounsel for the appellant submitted that on the basis of thecompromise decree passed in O.S.No.787 of 1981 the doctrine of lispendens cannot be invoked to invalidate the purchase made by theappellant from the second defendant as the compromise decree itselfhas been arrived at by fraud and collusion between the plaintiffand the second defendant. https://hcservices.ecourts.gov.in/hcservices/

20. In paragraphs 8 and 9 of the written statement, whichhave been extracted above, except the following sentence, namely,“the sale is not vitiated by the doctrine of lis pendens”, thefirst defendant has nowhere stated in the written statement thatthe compromise is vitiated by fraud or the compromise was theresult of any collusion between the plaintiff and the seconddefendant. Even in Ex.A5 reply notice dated 10.4.1991 sent to thelegal notice issued by the plaintiff neither fraud nor collusion hasbeen alleged. In the reply notice except stating that theappellant was a bonafide purchaser for valuable consideration andshe was not aware of the court proceedings, no other allegations havebeen made questioning the genuineness of the compromise decree.This aspect has been considered by both the Courts below. 21. It is also pertinent to point out that the firstdefendant/appellant has not entered the witness box. D.W.1claiming himself to be the manager of the appellant got examined onthe side of the appellant. In his evidence also, D.W.1 has notwhispered anything regarding the alleged fraud in obtaining thecompromise decree or alleged collusion between the plaintiff and thesecond defendant. In the course of cross examination of P.W.1 asuggestion has been put to P.W.1 regarding collusion and thefollowing answers have been elicited, namely, “compromise memo – tpy;nkhroahf ifbaGj;J bgwg;gl;lJ vd;W brhy;tJ jtW/ Collusive Mf ,Ue;njd; vd;W brhy;tJ jtW/” Apart from that no other suggestion hasbeen put and no worthwhile answers have been elicited from P.W.1which lends support to the contention that the compromise isvitiated by fraud or collusion. When there is total lack ofpleadings and also there is absolutely no evidence, this Courtwonders as to how the above substantial question of law arises forconsideration in the above second appeal. As rightly contended bythe learned counsel for the respondent the above substantialquestion of law in the light of the pleadings and evidence availableon record does not arise for consideration in the above secondappeal. 22. It is true that as contended by the learned counsel forthe appellant that the pleadings in mofussil courts are looselydrafted and a liberal construction has always to be given to suchpleadings but this is a case of no pleading at all and therefore, thecontention of the learned counsel cannot be countenanced.23. In 2008(15) SCALE 158 itself, the Apex Court inparagraphs 12 and 17 has also laid down as under:-“12. It is thus clear that a case notspecifically pleaded can be considered by the courtonly where the pleadings in substance, though not inspecific terms, contains the very necessary avermentsto make out a particular case and the issues framedalso generally cover the question involved and the https://hcservices.ecourts.gov.in/hcservices/ parties proceed on the basis that such case was atissue and had led evidence thereon. As the veryrequirements indicate, this should be only inexceptional cases where the court is fully satisfiedthat the pleadings and issues generally cover the casesubsequently put forward and that the parties beingconscious of the issue, had led evidence on suchissue. But where the court is not satisfied that suchcase was at issue, the question of resorting to theexception to the general rule does not arise. Theprinciples laid down in Bhagwati Prasad and Ram SarupGupta (supra) referred to above and several otherdecisions of this Court following the same cannot beconstrued as diluting the well settled principle thatwithout pleadings and issues, evidence cannot beconsidered to make out a new case which is notpleaded. Another aspect to be noticed, is that thecourt can consider such a case not specificallypleaded, only when one of the parties raises the sameat the stage of arguments by contending that thepleadings and issues are sufficient to make out aparticular case and that the parties proceeded on thatbasis and had led evidence on that case.” 17. In the absence of a claim by plaintiffsbased on an easementary right, the first defendant didnot have an opportunity to demonstrate that theplaintiffs had no easementary right. In the absenceof pleadings and an opportunity to the first defendantto deny such claim, the High Court could not haveconverted a suit for title into a suit forenforcement of an easementary right.” (emphasis supplied)24. As laid down by the Apex Court in the aforesaiddecision that a case not specifically pleaded can be considered bythe court where the pleadings in substance, though not in specificterms, contains the necessary averments to make out a particularcase and the issues framed also generally cover the question involvedand the parties proceed on the basis that such case was at issueand had led evidence thereon. But in the case on hand, it has to bepointed out that the pleadings does not contain necessary avermentsto make out a particular case and no issue relating to fraud orcollusion has been framed and the parties were not aware that suchissue would arise for consideration in the suit and they have notled any evidence on those aspects. 25. Further, in the very same decision, the Apex Courthas emphasised that only in exceptional cases where the court is https://hcservices.ecourts.gov.in/hcservices/ fully satisfied that the pleadings and issues generally cover thecase subsequently put forward and that the parties being consciousof the issue, had led evidence on such issue. Since the case wasnot specifically considered by the court, as pointed out above,this is not one such exceptional case. Both the courts below havepointed out that there is total lack of pleadings and evidence inrespect of the alleged fraud or collusion sought to be raised duringthe course of arguments. 26. It is also pertinent to point out that a suggestionhas been put to P.W.1 suggesting that in the compromise memosignature was obtained by fraud and the said suggestion has beendenied by P.W.1. Another suggestion has been put to P.W.1,namely, 'he was in collusion' and the said suggestion also hasbeen denied by P.W.1. Both the aforesaid suggestions run counter toeach other. If fraud is suggested in obtaining the compromisedecree then the plea of collusion cannot stand along with thesuggestion regarding fraud. If by playing a fraud upon the seconddefendant, the compromise decree was obtained then the collusionbetween the plaintiff and the second defendant does not arise atall. Similarly, if the collusion is accepted then the plea offraud will not arise. Therefore, it has to be pointed out thatwithout raising any plea in the written statement some suggestion hasbeen put by the learned counsel during the course of crossexamination of P.W.1 without understanding the difference betweenfraud and collusion. For the aforesaid reasons, I am unable tocountenance the submissions made by the learned counsel for theappellant. 27. The contention of the learned counsel for theappellant that though the suit filed by the plaintiff wasinitially contentious because of the passing of collusivecompromise decree the suit itself has become non-contentious andhence, the doctrine of lis pendens is not applicable cannot becountenanced. It is difficult to see that how the compromise ofthe suit between the parties subsequent to the transfer can beheld to render the suit non-contentious at the time of thetransfer or, indeed, at any time. The very fact of the compromiseshows that the suit was contentious. Moreover, if the compromiseof a suit were, held to render it non-contentious, it would neverbe safe for any party to enter into a compromise, since by sodoing he would jeopardise the fruits of the decree, which might bemade of no effect by a transfer made behind his back by the otherparty. I find no reason why the law should be such as to involveconsequences so completely at variance with the principles onwhich the doctrine of lis pendens is based.28. In this context, it is pertinent to refer to the lawlaid down by the Hon'ble Three Judges Bench of the Apex Court in https://hcservices.ecourts.gov.in/hcservices/ the decision reported in (2001) 3 SCC 179 (Santosh Hazari v.Purushottam Tiwari (deceased) by LRs.)“In Sir Chunilal V. Mehta & Sons Ltd. v.Century Spg. and Mfg. Co. Ltd.5 the Constitution Benchexpressed agreement with the following view taken by aFull Bench of the Madras High Court in RimmalapudiSubba Rao v. Noony Veeraju6:“[W]hen a question of law is fairly arguable, wherethere is room for difference of opinion on it or wherethe Court thought it necessary to deal with thatquestion at some length and discuss alternative views,then the question would be a substantial question oflaw. On the other hand if the question was practicallycovered by the decision of the highest court or if thegeneral principles to be applied in determining thequestion are well settled and the only question was ofapplying those principles to the particular facts ofthe case it would not be a substantial question of law.”and laid down the following test as proper test, fordetermining whether a question of law raised in thecase is substantial:“The proper test for determining whether a question oflaw raised in the case is substantial would, in ouropinion, be whether it is of general public importanceor whether it directly and substantially affects therights of the parties and if so whether it is either anopen question in the sense that it is not finallysettled by this Court or by the Privy Council or by theFederal Court or is not free from difficulty or callsfor discussion of alternative views. If the question issettled by the highest court or the general principlesto be applied in determining the question are wellsettled and there is a mere question of applying thoseprinciples or that the plea raised is palpably absurdthe question would not be a substantial question oflaw.”In the very same decision, the Apex Court has further heldas under:-“A point of law which admits of no two opinionsmay be a proposition of law but cannot be a substantialquestion of law. To be “substantial” a question of lawmust be debatable, not previously settled by law of theland or a binding precedent, and must have a materialbearing on the decision of the case, if answered either https://hcservices.ecourts.gov.in/hcservices/ way, insofar as the rights of the parties before it areconcerned. To be a question of law “involving in thecase” there must be first a foundation for it laid inthe pleadings and the question should emerge from thesustainable findings of fact arrived at by court offacts and it must be necessary to decide that questionof law for a just and proper decision of the case.” 29. If the principles of the aforesaid decision of the ApexCourt is applied to the facts of the case, then it has to be heldthat since the question of law that has been framed had alreadybeen decided by a Full Bench of this Court as early as 1906itself and reported in (1906) 16 M.L.J.372 referred to above, theabove substantial question of law cannot be considered to be asubstantial question of law at all. Further, to be a question oflaw “involving in the case” there must be first a foundation forit laid in the pleadings and the question should emerge from thesustainable findings of fact arrived at by court of facts. 30. As pointed out above, there is absolutely no pleadingor evidence in this case and as such, no foundation whatsoeverhas been laid in the pleadings and therefore, the above substantialquestion of law, in the considered view of this court, does notarise for consideration, in the above second appeal. It has to bepointed out that both the Courts below have considered the pleadingsand entire evidence on record thoroughly and their findings arebased on the evidence available on record and correct principleshave been applied to the facts of the case and as such the same donot call for any interference at the hands of this Court.31. It is pertinent to point out that both the Courts belowhave concurrently found that Kuppusamy Mudaliar after executingEx.A1 settlement deed, dated 25.6.1981 in favour of is son, theplaintiff and having not reserved any right to revoke the settlementdeed could not have executed Ex.B1, dated 4.8.1981 revoking Ex.A1and therefore, Kuppusamy Mudaliar had no right to execute Ex.B2settlement deed, dated 9.8.1991 in favour of his daughter, thesecond defendant and accordingly, upheld the Ex.A1 settlement deedand granted decree declaring the title of the plaintiff to the suitproperty. But while admitting the above second appeal beingsatisfied with the correctness of the findings recorded by the Courtsbelow, the learned Judge of this Court has not chosen to frame anysubstantial question of law on the issue relating to Ex.A1 and thedecree declaring the title of the plaintiff. The learned counselfor the appellant had also not raised any substantial question oflaw on the said issue. Therefore, the said finding regarding thetitle to the suit property has become final. Once the title to thesuit property has become final, it goes without saying that thesecond defendant had no right to convey any title in respect of thesuit property in favour of the first defendant and therefore, on https://hcservices.ecourts.gov.in/hcservices/ that ground itself, the appellant cannot get any relief in theabove second appeal and thus the above substantial question of lawframed in the above second appeal has become academic. For the foregoing reasons, the substantial question of law isanswered against the appellant and the above second appeal fails andthe same is dismissed with costs throughout. sd/-Asst.Registrar/true copy/Sub Asst.RegistrarrnbTo1. The Subordinate Judge, Kancheepuram.2. The District Munsif, Kancheepuram.+ 1 c.c. to M/s. Nadanasabapathy, Advocate. S.R.No.1600.+ 1 c.c. to Mr. K. Rajendran, Advocate. S.R.No.1590.S.A.No.293 of 2000 MBS (CO)GSK 24.04.2009.