Research › Search › Judgment

Madras High Court · body

2001 DIGILAW 987 (MAD)

Mangalakshmi Ammal and another v. Janakiraman

2001-08-31

K.SAMPATH

body2001
Judgment : The plaintiffs in O.S.No.416 of 1982 on the file of the District Munsif, Gingee, are the appellants in the second appeal. They filed the suit for declaration of their title to the suit properties and for permanent injunction restraining the defendant/ respondent from interfering with their possession and enjoyment of the suit properties. 2. Their case was as follows: The suit properties and other properties originally belonged to one Kuppa Kounder. Kuppa Kounder had two sons, Poongavana Kounder and Govindasamy. Poongavanam married the first plaintiff and a son by name Sampath was born to them. Poongavanam died leaving his wife and his son and as per the custom in the community, the first plaintiff married Poongavanams brother Govindasamy, who was at that time unmarried. The second plaintiff was born to Govindasamy and the first plaintiff. Sampath died unmarried and his share was inherited by the first plaintiff. Govindasamy and the second plaintiff constituted a joint family. There was misunderstanding between Govindasamy and the first plaintiff. This was utilised by the defendant. He practised deception and fraud and induced Govindasamy to execute a sale deed in his favour. When Govindasamy came to know about the evil design of the defendant, he refused to sign the sale deed. After the death of Govindasamy, the defendant forged his signature in the sale deed and got it registered compulsorily. Taking advantage of the forged sale deed, the defendant attempted to interfere with the plaintiffs possession of the suit properties necessitating the filing of the suit. 3. The defendant resisted the suit contending inter alia that Govindasamy voluntarily sold the suit properties to him, that after executing the sale deed, Govindasamy refused to co-operate in registering the document, that the marriage between Govindasamy and the first plaintiff was not true and that the suit was not maintainable. 4. Thetrial Court on the pleadings framed the following issues: (1) Whether the first plaintiff remarried Govindasamy Kounder? (2) Whether the suit properties were the joint family properties of the plaintiffs and Govindasamy Kounder? (3) Whether the sale deed, dated 4.9.1981 is a fraudulent and void documents? (4) Whether the sale deed, dated 4.9.1981 executed by Govindasamy Kounder in favour of the defendant, is true and valid? (5) Whether the defendant is in possession of the suit properties on the basis of his ownership? (6) Whether the plaintiffs are entitled to declaration and permanent injunction? (4) Whether the sale deed, dated 4.9.1981 executed by Govindasamy Kounder in favour of the defendant, is true and valid? (5) Whether the defendant is in possession of the suit properties on the basis of his ownership? (6) Whether the plaintiffs are entitled to declaration and permanent injunction? and (7) To what reliefs? 5. On the sideof the plaintiffs, as many as 24 documents were filed and marked as Exs.A-1 to A-24 and including the first plaintiff five witnesses were examined as P.Ws.1 to 5. On the side of the defendant 11 documents were filed and marked as Exs.B-1 to B-11 and four witnesses including the defendant were examined as D.Ws.1 to 4. 6. From the pleadings and the oral and the documentary evidence, the learned District Munsif, held: The first plaintiff remarried Govindasamy Kounder as per custom prevailing in the Community, and that the second plaintiff was born to the first plaintiff and Govindasamy Kounder. The suit properties are the joint family properties of the plaintiffs and Govindasamy Kounder. The sale deed dated 4.9.1981 is not a true and valid document, but, fraudulent and void document. The defendant has not established that he is in possession of the suit properties on the basis of his ownership. The plaintiffs are therefore entitled to the relief of declaration and permanent injunction. By judgment and decree dated 29.4.1988, the learned District Munsif, decreed the suit. 7. The respondent filed appeal in A.S.No.36 of 1988 before the Sub Court, Tindivanam. The learned Subordinate Judge framed the following point for consideration Whether the sale deed dated 4.9.1981 is true and therefore valid? 8. The learned Subordinate Judge held that, if at all, the sale deed was a voidable document and in case the plaintiffs had filed the suit for cancellation of the sale deed alleging that they were the heirs of Govindasamy Kounder, their contention could have been considered, but, in as much as they sought declaration of title with regard to suit properties, the suit, as framed, was not maintainable. The learned Subordinate Judge further observed that merely because the scribe had not signed the sale deed, it would not mean that it was a void or fraudulent document. The learned Subordinate Judge further observed that merely because the scribe had not signed the sale deed, it would not mean that it was a void or fraudulent document. The learned Subordinate Judge further observed that the trial Court had not dealt with the ownership of the suit properties in a proper manner, as according to him, there were no materials to show that Govindasamy Kounder remarried the first plaintiff lawfully. The learned Subordinate Judge therefore held that it had not been established that the first plaintiff had remarried Govindasamy Kounder after the death of her husband Poongavanam and that the second plaintiff was born to the first plaintiff and Govindasamy in lawful wedlock. He relied on the oral evidence of D.Ws.3 and 4 in coming to the conclusion that Govindasamy Kounder had executed the sale deed. If only Govindasamy Kounder had participated in the enquiry for compulsory registration, there would not have been need for an ex parte decision by the District Registrar. The suit without seeking cancellation of the order of compulsory registration was not properly laid. So holding, the learned Subordinate Judge allowed the appeal by judgment and decree dated 27.11.1989 and dismissed the suit. 9. It is as against this, the present second appeal has been filed. At the time of admission, the following substantial questions of law were framed for decision in the second appeal: (1) Whether the lower Appellate Court was right in holding that Ex.B-3 was voidable and not a void document, overlooking that the execution by Govindasamy was not proved and title did not pass under the document? and (2) Whether the lower appellate Court was right in holding that Govindasamy was entitled to alienate the suit property overlooking that admittedly the suit properties were the joint family properties of Govindasamy and his son and that it has not been established that the said alienation was for the benefit of necessity of the family? 10. Mr.A.K.Kumarasamy, learned counsel for the appellants, submitted that the defendant/ respondent had not proved the sale deed Ex.B-3 in his favour as having been duly signed by Govindasamy and that in the absence of such proof, the lower Appellate Court ought to have held that Ex.B-3 was a fraudulent and collusive document and therefore it was void and non est for all purposes. The learned counsel further submitted that the order of the Registrar directing compulsory registration after the death of Govindasamy was passed ex parte and no importance could be attached to the registration of Ex.B-3. The learned counsel also took me through the entire evidence with a view to demonstrate how the lower appellate Court had misconstrued the evidence and misapplied the principles of law. The learned counsel also took exception to the learned Subordinate Judge framing only one point for consideration as to whether Ex.B-3 sale deed was true and valid, but at the time finding that the second marriage of the first plaintiff with Govindasamy had not been proved. In this connection, according to the learned counsel, the defendant had admitted before the Registrar of Villupuram that the plaintiff were respectively the widow and son of Govindasamy and therefore he was estopped from contending that they were not the widow and son of Govindasamy. 11. The learned counsel for the respondent submitted that the execution of Ex.B-3 by Govindasamy had been amply proved, that there was notice issued to Govindasamy by the Sub Registrar, that the Sub Registrar refused to register as Govindasamy did not appear and admit execution, that the defendant applied to the District Registrar, who issued summons to the plaintiffs and as they did not appear and dispute the signature of Govindasamy in the document, he had directed compulsory registration and that no exception could be taken to the finding reached by the lower appellate Court with regard to execution of Ex.B-3 sale deed by Govindasamy. The learned counsel further submitted that the plaintiffs were not justified in disputing Ex.B-3 that it had been properly executed and registered. The learned counsel made a point of the fact that soon after Ex.B-3, dated 4.9.1981, there was a settlement deed executed under the original of Ex.B-11 in favour of the plaintiffs by Govindasamy and that settlement deed did not include the properties covered by Ex.B-3 and this would probabilise that the sale under Ex.B-3 was true. The learned counsel also drew my attention to the pleadings that in the plaint execution had not been specifically denied and the burden of the plaintiffs that it was a forged document, had not been discharged. The learned counsel also drew my attention to the pleadings that in the plaint execution had not been specifically denied and the burden of the plaintiffs that it was a forged document, had not been discharged. The learned Counsel further submitted that in case this Court entertained any doubt about the genuineness of Ex.B-3, the matter could be remitted to the lower appellate Court for consideration as to whether Ex.B-3 contained the signature of Govindasamy and that it had been validly admitted for registration. 12. Mr.Kumarasamy, learned counsel for the appellants, laid particular stress on Ex.A-19, which is a reply notice issued on 24.12.1981 by Govindasamy Kounder to the lawyer notice of Muthukrishna Kounder, D.W.3 herein. Ex.A-19 among other things, states that the pronote in respect of which a notice had been issued on behalf of Muthukrishna Kounder, was a forged document. This Muthukrishna Kounder is admittedly the father-in-law of the defendant in the present case. In this reply notice, there is a reference to the sale deed Ex.B-3 in the present suit. What is stated in Ex.A-19 is that with a view to discipline the plaintiffs, the sale was thought of and when the defendant talked about registration, Govindasamy realised that he was being cheated and the sale was not completed as the scribe had not signed. It is in evidence that as stated in Ex.A-19 in the suit filed by the assignee of the promissory note, the signature of Govindasamy was found to be a forgery. This is sought to be relied on by Mr.Kumarasamy to drive home his point that the defendant had forged the signature of Govindasamy in the sale deed and got it registered after the death of Govindasamy. D.W.3 in the course of his evidence stated that he assigned the promissory note in favour of the defendants brother Ramasamy and Ramasamy filed the suit in O.S.No.116 of 1984 against the present plaintiffs and that he was not examined in that suit. However, this was falsified by the production of Ex.A-23 deposition of Muthukrishnan in the promissory note suit against the present plaintiff. There are several discrepancies in the oral evidence on the side of the defendant with regard to execution by Govindasamy of Ex.B-3. Mr.Kumarasamy laid great stress on the several inconsistencies and submitted that the document Ex.B-3 had not been proved to have been signed by Govindasamy. 13. There are several discrepancies in the oral evidence on the side of the defendant with regard to execution by Govindasamy of Ex.B-3. Mr.Kumarasamy laid great stress on the several inconsistencies and submitted that the document Ex.B-3 had not been proved to have been signed by Govindasamy. 13. The facts not disputed are: The suit properties and other properties belonged to the joint family of Kuppa Kounder and his two sons Poongavana Kounder and Govindasamy Kounder. Poongavana Kounder married the first plaintiff. One son by name Sampath was born to them. Sampath died as also Poongavanam. At that time Govindasamy was still a bachelor. 14. Now dispute arises with regard to the marital status of the first plaintiff. According to the plaintiffs, the first plaintiff married Govindasamy as per custom” prevailing in the community and the second plaintiff was born to them. Though the defendant disputes such a marriage, in as much as in the proceedings before the District Registrar; after the death of Govindasamy, he had shown the plaintiffs as the legal representatives of the deceased Govindasamy specifically mentioning them respectively as the wife and son of Govindasamy Kounder, he is estopped from contending that there was no marriage between the first plaintiff and Govindasamy Kounder. 15. This apart, the suit by Ramasamy, elder brother of the defendant, against the present plaintiffs in O.S.No.116 of 1984 before the District Munsifs Court, Gingee, had been filed against the plaintiffs as the legal representatives of Govindasamy Kounder. He was an assignee of a promissory note alleged to have been executed by Govindasamy Kounder in favour of D.W.3, Muthukrishnan, father-in-law of the defendant. Thus the fact remains that the plaintiffs had been recognised and accepted respectively as the wife and son of the deceased Govindasamy Kounder. The finding of the lower appellate Court that the appellants have not proved the marriage of the first appellant with Govindasamy cannot therefore be sustained. 16. The next question would be whether Govindasamy, in fact, executed Ex.B-3, Ex.B-3 is dated 4.9.1981. It is settled law that registration of a document is not by itself proof of execution. But, it may be some evidence of execution. It does not prevent a party from bringing a suit for declaration that the signature in the document is a forgery. It is open to the alleged vendor or his representatives to dispute the document as a forgery. But, it may be some evidence of execution. It does not prevent a party from bringing a suit for declaration that the signature in the document is a forgery. It is open to the alleged vendor or his representatives to dispute the document as a forgery. The Court can go into that question whether the signature was true and indeed that of the executant. The lower appellate Court has found fault with the plaintiffs that they had not questioned the order of compulsory registration passed by the District Registrar, Villupuram, under Ex.B-1. They were not parties to Ex.B-3 document. It is not necessary to seek cancellation of Ex.B-3 document. What they have prayed for is declaration of title with regard to the suit properties. They have indirectly challenged the order of compulsory registration by the District Registrar under Ex.B-1. 17. This is not a case where it is possible to strictly follow the principle that parties are bound by their pleadings. We have to decide on the basis of the records available, as, according to me, that alone will meet the ends of justice. 18. Let us now refer to the various exhibits filed on either side. Ex.A-1 is kist receipt for fasli 1367 paid by the plaintiffs. It is dated 6.7.1958. Exs.A-2 to A-4 show that the deceased Sampath had paid kist for fasli 1369 on 20.6.1960. Exs.A-5 to A-17 are the kist receipts for fasli starting from 1368 to 1386 paid by Govindasamy Kounder. Ex.A-18 is the registration copy of Ex.B-3. Ex.A-19 is of relevance. Some details about Ex.A-19 have already been given in this judgment. That is a reply notice issued on behalf of Govindasamy Kounder to the notice issued on behalf of Muthukrishna Kounder. D.W.3 in the present case. From the reply notice Ex.P-19, it is seen that Govindasamy had disputed the genuineness of the pronote dated 11.3.1981 alleged to have been executed by him for Rs.4,500 in favour of D.W.3. That is a reply notice issued on behalf of Govindasamy Kounder to the notice issued on behalf of Muthukrishna Kounder. D.W.3 in the present case. From the reply notice Ex.P-19, it is seen that Govindasamy had disputed the genuineness of the pronote dated 11.3.1981 alleged to have been executed by him for Rs.4,500 in favour of D.W.3. In the reply notice, there is a definite reference to misunderstandings arising between Govindasamy Kounder and the plaintiffs and with a view to discipline them and bring them around the defendant, persuading the deceased Govindasamy Kounder to execute a sale deed and that when Govindasamy Kounder learnt that the defendant was planning to have the document registered, he understood the true intent of the defendant and raised a dispute, with the result the scribe of the document did not complete the document by signing the same as scribe. There is also further reference to the defendant attempting to grab the properties of Govindasamy Kounder and with a view to somehow get at the properties, the defendant making an attempt to persuade the scribe Velayutham to sign the document and get the document compulsorily registered and that in that connection, his signature had been forged in the pronote and there was an attempt to somehow prevail on him to part with the properties. Thus the deceased Govindasamy Kounder had disputed the due execution of Ex.B-3 as would be evident from the reply notice given in the other suit. 19. Ex.A-20 is the judgment in O.S.No.116 of 1984. The same learned District Munsif who decided the present suit at the trial stage had decided the other suit also. He had the benefit of watching the demeanour of the witnesses and assessing the credibility of their deposition. It will be useful to extract a portion of the judgment in O.S.No.116 of 1984. 20. The learned District Munsif discredited the case of the plaintiffs in toto and held that no consideration passed under the promissory note and that the signature in the promissory note was not that of Govindasamy Kounder. The learned District Munsif also found that the plaintiffs in that suit, present D.W.3, and the defendant in this case had conspired to grab the property of Govindasamy Kounder and when Govindasamy Kounder refused to attend registration, they brought about the promissory note in that suit. The learned District Munsif also found that the plaintiffs in that suit, present D.W.3, and the defendant in this case had conspired to grab the property of Govindasamy Kounder and when Govindasamy Kounder refused to attend registration, they brought about the promissory note in that suit. There is also a finding in that suit that Govindasamy Kounder was doing coolie work and that he did not need such a large amount as Rs.4,500 covered by the promissory note. It was also incidentally found that he did not have to sell his property. The plaintiff in that suit filed appeal in A.S.No.58 of 1986. The appeal was dismissed on 25.2.1989. 21. Ex.A-22 is the voters list. In the voters’ list, the first plaintiff is shown as the wife of Govindasamy Kounder. Ex.A-23 is a portion of the deposition of the present D.W.3 in the promissory note suit. The marked portion is as follows: It is pertinent to point out that D.W.3 had denied that he was examined as a witness in the promissory note suit. Ex.A-24 is the deposition of the present D.W.4 in the promissory note suit. In cross-examination he has stated, as follows: 22. Let us now go to Ex.B-1. It is the order of the District Registrar, compulsorily registering the sale deed Ex.B-3. alleged to have been executed by Govindasamy Kounder. In the order it is stated that the present defendant had deposed that the document was written at Gingee, that attestors Muthukrishna, Seetharaman and Ponpathi Pandurangan were present, that he did not know the name of the scribe, that the attestors deposed that the document was read over to the executant who accepted the contents, received Rs.2,500 and signed in the document in the presence of attestors and that thereafter the attestors signed, that there was no reason to disbelieve their evidence and that apart Govindasamy Kounder had signed clearly in all the pages, and that the legal representatives of Govindasamy Kounder were not present though notice had gone to them. The District Registrar directed registration of the document. We cannot take exception to what the District Registrar did. Where the executant is dead and the heirs appear and deny execution or do not appear, it is open to the District Registrar to register the document on being satisfied that the document was duly executed and the requirements had been satisfied. The District Registrar directed registration of the document. We cannot take exception to what the District Registrar did. Where the executant is dead and the heirs appear and deny execution or do not appear, it is open to the District Registrar to register the document on being satisfied that the document was duly executed and the requirements had been satisfied. The nonappearance of an executing party in pursuance of summons issued under Sec.75(4) of the Registration Act is equivalent to denial of execution. 23. The case of the plaintiffs now is that Govindasamy Kounder refused to sign the document on being read out to him. There is a specific denial of the signature. The onus is on the defendant. The scribe, P.W.4, also refused to put his signature. There was a suggestion put to him that he was not the scribe and he had denied the same. 24. Ex.B-2 is the registration copy of Ex.B-3. Ex.B-3 is the disputed sale deed. Govindasamy Kounder in his reply notice Ex.A-19 has categorically said that the defendant got a sale deed from him on a false representation that it would bring round Govindasamy Kounders wife and son, but, when the defendant attempted to go back on it, and wanted to have it registered, he protested and the scribe also refused to complete the formality by signing his name, and that the sale deed was not to come into effect. Exs.B-4 to Ex.B-9 relate to the application filed by the defendant before the Registrar for compulsory registration. They are not very material for our purpose. Ex.B-10 is the decretal order of the Registrar in the Application No.2 of 1982. Ex.B-11 is the registration copy of the settlement deed executed by Govindasamy Kounder in favour of the plaintiffs. 25. No doubt, Ex.B-11 does not include the property covered by Ex.B-3. But, that by itself will not show that Ex.B-3 had been properly executed and proved to have been signed by the deceased Govindasamy Kounder. The stand of Govindasamy Kounder with regard to Ex.B-3, as seen from Ex.A-19, reply to the promissory suit notice, would make the position clear as to who wrote the document. There is no uniformity. The defendant as D.W.1 says that it was P.W.3, who wrote the document Ex.B-3. But, P.W.3, who was examined on the side of the plaintiffs, deposed that Ex.B-3 was written by P.W.4. There is no uniformity. The defendant as D.W.1 says that it was P.W.3, who wrote the document Ex.B-3. But, P.W.3, who was examined on the side of the plaintiffs, deposed that Ex.B-3 was written by P.W.4. The defendant did not come out with the true case. Ex.B-3 sale deed was exhibited as Ex.A-4 in that suit and it has already been noticed that Ex.B-3 was not accepted by the trial Court in the promissory note suit. Ex.A-23 to which reference has already been made is the portion of the deposition of the present D.W.3 in the promissory note suit. He has denied in the present suit that he was examined in that suit and his evidence is bristling with inconsistencies. Attestor to Ex.B-3 is Seetharaman/ D.W.4, who was examined as P.W.6 in the promissory note suit. Ex.A-2 is his deposition in that suit. In that he said that Govindasamy Kounder is signed Ex.A-4 (present Ex.B-3) before it was written. So far as the defendants evidence as D.W.1 is concerned, he lies throughout. According to him, the sale talks for Ex.B-3 took place on 3.9.1981 at Tiruvampattu. The document was written on 4.9.1981 between 9 and 10 a.m. The scribe Teacher Sundaram Naidu, attestors Muthukrishna/ D.W.3, and Pandurangan were present when money was paid. D.W.3, D.W.4 and Pandurangan signed as attestors. According to D.W.1, Govindasamy Kounder brought D.W.4; and D.W.3 and Pandurangan were brought by the defendant. In cross-examination he would say that he did not know whether Ex.B-3 was written by Velayutham, son of Ramalingam. He did not know who write Ex.B-3 - Sundaramoorthi or Sundara Naidu, and that he was going to examine Sundara Naidu. D.W.3 is his father-in-law and he would go to the extent of denying his relationship to D.W.4 who was the sisters husband of the defendant. He also speaks about the talks taking place in Narasingarayapettai when Varadarajan, Ganesan and Chakravarthi were present, and that two or three days prior to writing the document there were talks. D.W.2 is the attestor to the original of Ex.B-11. He categorically says that Govindasamy Kounder did not know to sign, and that he only affixed his thumb impression in the original of Ex.B-11. He also says that there was problem in the village with regard to the sale. D.W.3 Muthukrishna says that consideration paid was Rs.2,000 when the actual consideration was Rs.2,500. He categorically says that Govindasamy Kounder did not know to sign, and that he only affixed his thumb impression in the original of Ex.B-11. He also says that there was problem in the village with regard to the sale. D.W.3 Muthukrishna says that consideration paid was Rs.2,000 when the actual consideration was Rs.2,500. He also admits that there were variations in the signature found in Ex.B-3. 26. Withthis kind of evidence, it is very unsafe to accept Ex.B-3 as a properly and duly executed document. It is a document not above board. The plaintiffs, who were not parties to Ex.B-3, no doubt, have disputed the signature of Govindasamy Kounder in Ex.B-3 and we have already noticed that it was compulsorily registered. The Registrar accepted the version of the defendant and the attestors who appeared before him. Mere registration by itself will not give sanctity to an otherwise fraudulent document. We have already seen Govindasamy Kounder did not want to go to registration. As per his reply notice, Ex.A-19, Ex.B-3 was meant to be a threat to the plaintiffs as they were not treating him properly and they were not feeding him. there is no uniformity in the evidence with regard to -who wrote the document/Ex.B-3, terms of the sale deed, passing of consideration, place of preparation and execution. The execution ought to have been proved without scintilla or shadow of doubt by the defendant. In my considered view, the defendant has failed in this regard. 27. This is a case where the lower appellate Court has misapplied the legal principles and misread the document. It was in error holding that Ex.B-3 had been duly executed and registered. Misreading of the materials by the appellate Court has led to miscarriage of justice. The conclusion reached by the appellate Court is perverse and therefore there is justification for interference under Sec.100, C.P.C. The lower appellate Court has failed to consider the material documents in the proper perspective in particular Ex.A-20 the judgment in the promissory note suit. 28. Consequently, the substantial questions of law raised have to be answered in favour of the appellants and therefore they are accordingly answered. The second appeal stands allowed. The judgment and the decree of the lower appellate Court are set aside and those of the trial Court restored. There will, however, be no order as to costs.