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2002 DIGILAW 1102 (MAD)

Minor Balamurugan v. Govindasamy Padayachi

2002-09-20

RAMAMURTI

body2002
Judgment : 1. The plaintiff in the suit is the appellant. 2. The case in brief is as follows : The plaintiff filed a suit for declaration that the suit properties belong to him and also for recovery of possession and mesne profits. It is admitted that the salt properties originally belonged to the 2nd defendant. He agreed to convey the properties to the plaintiff on 16.02.1984 and the 1st defendant also competed in purchasing the very same properties. However, on 17.02.1984 the 2nd defendant signed in the sale deed in favour of the plaintiff and received a sum of Rs.2,000/- for remittance to the Village Cooperative Bank at Thirunavalur. The balance amount of Rs.2,000/-has to be paid before the Sub Registrar at the time of registration of the document. Possession of the property was also given to the plaintiff. Due to this, defendants 1 and 2 conspiring themselves together with a conspiracy created an antedated sale deed and subsequently registered the same on 23.02.1984. The plaintiff on coming to know of the sale in favour of the 1st defendant, sent objections to all concerned. The plaintiff also moved the authorities concerned for compulsory registration of the document in his favour and after observing all the formalities, his sale deed was registered on 03.09.1984. Under the circuctstances the sale in favour of the 1st defendant is not valid under law. On 05.03.1984, the 1st defendant trespassed into the property and hence the suit. The first defendant filed a written statement admitting the title of the 2nd defendant. He denied the case of the plaintiff that the 2nd defendant agreed to convey the property for a sum of Rs.4,200/-on 16.02.1984 and also the execution of the sale deed dated 17.02.1984. Defendants 1 and 2 entered into a sale of the property on 12.11.1983 for a consideration of Rs.4200/-and as it was late, they agreed to register the same on 14.11.1983. Subsequently, the 2nd defendant was not keeping good health and as such, the sale deed was registered only on 24.02.1984. Moreover, the 1st defendant was cultivating the property since 1980 on varam basis as a lessee. The allegation that the 1st defendant trespassed into the property is not correct. The sale in favour of the plaintiff is not valid under law and as such, the plaintiff is not entitled to get any relief. Moreover, the 1st defendant was cultivating the property since 1980 on varam basis as a lessee. The allegation that the 1st defendant trespassed into the property is not correct. The sale in favour of the plaintiff is not valid under law and as such, the plaintiff is not entitled to get any relief. The trial Court framed 4 issues and on behalf of the plaintiffs, P.Ws.l to 3 were examined and Exs.A-1 to A-6 were marked and on the side of the first defendant, D.Ws.l and 2 were examined and Exs.B-1 to B-14 were marked. The trial Court decreed the suit and aggrieved against this, the defendant preferred A.S.No.5 of 1989 on the file of Sub Court, Villupuram and the learned Judge after hearing the parties, allowed the appeal, set aside the judgment and decree of the trial Court and dismissed the suit. Aggrieved against this, the plaintiff has come forward with the present second appeal. 3. At the time of admission of the second appeal, this Court framed the following substantial questions of law for consideration: (1) Whether the learned Subordinate Judge has erred in law in coming to a conclusion as to the exact date of execution throwing the onus of establishing the evidence of appellant who is not a party to the document ? (2) Whether the learned Sub Judge erred in law in finding that Ex.B-4 was executed on 12.11.1983 ignoring the valuable circumstantial evidence and proceeding on the presumption not available in law ? 4. Heard the learned counsel for the parties. 5. There is no dispute that the suit properties originally belonged to the 2nd defendant. Now, there is a rival claim of ownership between the plaintiff and the 1st defendant relating to the properties. The plaintiff claimed that the 2nd defendant agreed to convey the properties to him for a sum of Rs.4,200/-and the sale deed was executed under Ex.A-1 dated 17.02.1984 and he was also put in possession of the same. The 1st defendant was also a competitor to purchase the properties and he somehow managed to deal with the 2nd defendant and both of them have created a sale deed ante-dated as in favour of the 1st defendant on 12.11.1983; but however that sale deed was registered only on 24.02.1984. The 1st defendant was also a competitor to purchase the properties and he somehow managed to deal with the 2nd defendant and both of them have created a sale deed ante-dated as in favour of the 1st defendant on 12.11.1983; but however that sale deed was registered only on 24.02.1984. The plaintiff also sent objections to defendants 1 and 2 and inspite of the same the sale deed in favour of the 1st defendant was registered on 24.02.1984. Nowr the plaintiff has filed the suit for a declaration and recovery of possession of the properties with mesne profits. 6. The trial Court decreed the suit in favour of the plaintiff whereas the lower appellate Court reversed the finding. The learned counsel for the appellant/plaintiff contended that the appellate Court erred in coming to the conclusion that the sale deed in favour of the 1st respondent by the 2nd respondent is not an ante-dated document. Ex.B-4 was written on five stamp papers of the value on Rs.10/-each and the balance of stamp duty of Rs.454/- was paid in cash to the Sub Registrar at the time of registration. If really Ex.B-4 had been written in pursuance of the concluded contract between the parties the stamp paper would have been purchased for the entire value and the document would have been engrossed on the same. There is no acceptable explanation for the inordinate delay of nearly three months in registering the document purported to have been executed on 12.11.1963. The failure to examine the scribe of Ex.B-4 and examination of attestor D.W.2, who is a close relation of the 1st respondent and who is not well disposed towards the next friend of the plaintiff. The glaring discrepancy in the evidence of D.Ws.l and 2 regarding passing of consideration was not properly considered. There is no presumption in law that a deed was executed on the date it bears. 7. The lower appellate Court had correctly considered the entire documents filed on either side and came to the conclusion that the plaintiff is not entitled to get the relief. There is inconsistency in the version of P.Ws.l to 3 regarding the agreement of sale as well as discharge of other loans. No doubt, the document in favour of the plaintiff was registered on 03.09.1984, but the sale in favour of the 1 st defendant was registered on 24.02.1984. There is inconsistency in the version of P.Ws.l to 3 regarding the agreement of sale as well as discharge of other loans. No doubt, the document in favour of the plaintiff was registered on 03.09.1984, but the sale in favour of the 1 st defendant was registered on 24.02.1984. The 2nd defendant having executed two sale deeds, has kept quiet and simply watching the proceedings. The prior title deeds relating to the 2nd defendant were entrusted only to the 1st defendant. This is one circumstance to show that the 2nd defendant might have executed the sale in favour of the 1st defendant only on 12.11.1983 as per Ex.B-4. The 1st defendant alone produced the title deeds and they were also marked in the trial Court. This being so, the plaintiff has not chosen to explain as to why he was not able to get the prior title deeds, if he has got the sale deed earlier in point of time. Patta was also transferred in the name of the 1st defendant in pursuance of the sale deed and kist has also been paid. These are some of the circumstances to show that the sale in favour of the 1st defendant was, earlier in point of time and this being so, the 2nd defendant has no right whatsoever to convey the very same property to the plaintiff at a later point of time. Although the plaintiff contended that the letters were sent to the concerned authorities, they have not been properly proved. The 1st defendant was already a tenant in the property and therefore if already the 2nd defendant agreed to convey the property to the plaintiff then he should have verified about the delivery of possession. There is absolutely no evidence that Ex.B-4 had been ante-dated by the 1st defendant. 8. The learned counsel for the respondents relied on P. Pocker v. V. Khalid (AIR 1974 Karala 121) that “in the absence of any evidence to the contrary the Court erred in assuming that the award was executed on a day different from that mentioned in it. It is illogical to assume that the purchase of the stamp paper for the award and its execution could not be done on the same date”. This decision is relied upon in order to show that the sale deed was executed on 12.11.1983 in favour of the 1st respondent is proper and correct. It is illogical to assume that the purchase of the stamp paper for the award and its execution could not be done on the same date”. This decision is relied upon in order to show that the sale deed was executed on 12.11.1983 in favour of the 1st respondent is proper and correct. 9. Reliance is also placed on Arunachalam v. Sivan ( AIR 1970 Mad. 226 ) under Section 23 of the Registration Act that delay till the last date of limitation does not amount to negligence of transferee. Where a man does what the law of the Court permits him to do, it cannot amount to gross negligence”. This decision is relied upon to explain about the delay in registration of the document. 10. The learned counsel for the appellant relied on Azeezulla Sheriff v. Bhabhutimul (AIR 1973 Mys. 276) that a compulsorily registrable sale deed executed earlier in point of time, will when registered, prevail over the subsequent sale deeds even though such latter deeds were registered at an earlier point of time. There is no dispute about this principle, but it has no application to the case on hand. 11. The appellant also relied on Kalianna Gounder (died) and others v. Kalianna Gounder and others ( 1988 (2) L.W.292 at 300) that “from the mere circumstance that the stamp papers had been purchased earlier it cannot be concluded that the agreement written with the stamp paper purchased earlier had been written prior to the agreement with the stamp paper purchased later. There cannot be any assumption regarding the purchase of the stamp papers and the writing up of the documents. There is also no dispute about this principle and the applicability of the same depends upon the facts and circumstances in each case. 12. There is inordinate delay on the part of the plaintiff from registering his sale deed and it was made only on 03.09.1984. However, the learned counsel for the appellant/plaintiff contended that although the registration was made on 03.09.1984, it will date back to 17.02.1984. But, Ex.B-4 has been clearly proved by positive evidence on the side of the respondent to show that it was executed on 12.11.1983. However, the learned counsel for the appellant/plaintiff contended that although the registration was made on 03.09.1984, it will date back to 17.02.1984. But, Ex.B-4 has been clearly proved by positive evidence on the side of the respondent to show that it was executed on 12.11.1983. Considering the fact that the sale by the 2nd defendant in favour of the 1st defendant took place well anterior in point of time although it was registered on 24.02.1984, it will take back to 12.11.1983 and as such, the sale in favour of the 1st defendant is valid. Subsequently the 2nd defendant has no power whatsoever to convey the property in favour of the plaintiff. Considering the production of the prior title deeds by the 1st defendant and the subsequent transfer of patta in his name, it is evidently clear that the 1st defendant is the purchaser of the property in the first instance and thereafter only Ex.A-1 had come into existence. In my view, the lower appellate Court had correctly considered the documents as well as the oral evidence and rightly came to the conclusion that the 1st defendant had purchased the property earlier in point of time and as such, the plaintiff is not entitled to claim any relief. 13. For the reasons stated above, the Second Appeal fails and is dismissed. No costs.