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2005 DIGILAW 432 (MAD)

Palanivelu v. Kannappa Udayar

2005-03-11

S.K.KRISHNAN

body2005
JUDGMENT: Aggrieved by the judgment and decree dated 6.7.1993 passed in A.S.No.126 of 1989 on the file of the Subordinate Court, Virdhachalam reversing thejudgment and decree dated 15.7.1989 made in O.S.No.633 of 1983 on the file of the District Munsif Court, Kallakurichi. 2. The averments made in the plaint are as follows: (a) The palintiff is the owner of the property referred to in the plaint schedule and the said property was purchased by him form one Shanmuga Udayar on 10.1.1975 under a registered sale deed. After the execution of the said sale deed in favour of the plaintiff, the vendor Shanmuga Udayar has no title or interest over the said property. Initially one Angammal had instituted a civil suit in O.S.No.899 of 1981 against the said Shanmuga Udayar and obtained a decree and consequently, in the auction sale, the defendant purchased the said property and thereafter he attempted to trespass into the suit property. The defendant has not exercised any right or interest over the suit property. (b) The sale proceedings in pursuance of the decree in O.S.No.899 of 1981 is not a valid one and not sustainable under law. To defeat the right and interest of the plaintiff, the defendant claims to be the auction purchaser of the said property attempted to dispossess the plaintiff. The plaintiff is the bonafide purchaser. When the plaintiff came to know about the Court auction, he filed a claim petition under O.21, Rule 58, C.P.C. (c) Since the said petition was filed by the plaintiff after the completion of the sale, the said petition was withdrawn as not pressed. After the withdrawal of the said petition, the plaintiff instituted the suit immediately against the defendant to protect his interest and right over the said property. 3. The averments made in the written statement are as follows: (a) The defendant is an auction purchaser of the suit property. The suit instituted by the plaintiff is not maintainable under law and on facts. The execution of the sale deed dated 10.1.1975 by Shanmuga Udayar in favour of the plaintiff is not a valid one and it cannot be considered as a genuine transaction. In fact, Shanmuga Udayar indebted to many persons, including the said Angammal. The said Shanmga Udayar borrowed a sum of Rs.1,000 from Angammal on 20.11.1971 by executing a promissory note in her favour. In fact, Shanmuga Udayar indebted to many persons, including the said Angammal. The said Shanmga Udayar borrowed a sum of Rs.1,000 from Angammal on 20.11.1971 by executing a promissory note in her favour. Since he failed to pay the said amount, the said Angammal filed a suit. To defeat the claim of the creditors, the said Shanmuga Udayar in collusion with the palintiff executed a sale deed in favour of the plaintiff without any consideration. Since the plaintiff is a close relative of Shanmuga Udayar, the said sale deed was executed on 10.1.1975 to defeat the creditors. As per Sec.53 of the Transfer of Property Act, the said sale is not a valid one. The defendant purchased the property through Court auction on 3.1.1983, which was held in pursuance of the decree passed in favour of Angammal. The said sale was confirmed on 30.7.1983 and from the date of confirmation, the defendant was to be in possession of the suit property and therefore, the defendant is entitled to the suit property. In fact, the claim petition filed by the plaintiff on 3.1.1983 was dismissed on 29.1.1983. The suit is barred in view of the provisions under O.21, Sub-clause 2 to Rule 58, C.P.C. The plaintiff is not a bonafide purchaser and the suit filed by the plaintiff is not maintainable and the same is liable to be dismissed. 4. On the basis of oral and documentary evidence, the Trial Court dismissed the suit. As against the judgment and decree of the Trial Court, the appeal filed by the plaintiff was allowed. Hence, the defendant has come forward with this second appeal. 5. The second appeal was admitted on the following substantial questions of law: (a) Whether the lower appellate Court has correctly interpreted O.21, Rule 58, C.P.C.? (b) Whether the lower appellate Court was right in holding that the suit is maintainable as there was only withdrawal of claim petition and no investigation on merits in view of the ruling in Saithew Mohammed v. Abdul Khader, A.I.R.1965 Ker.110. 6. The learned counsel appearing for the appellant/defendant would submit the following contentions: (a) The sale deed alleged to have been executed by the Shanmuga Udayar in favour of the respondent/plaintiff on 10.1.1975 is not a true and genuine transaction and no consideration was passed on to the respondent/plaintiff. 6. The learned counsel appearing for the appellant/defendant would submit the following contentions: (a) The sale deed alleged to have been executed by the Shanmuga Udayar in favour of the respondent/plaintiff on 10.1.1975 is not a true and genuine transaction and no consideration was passed on to the respondent/plaintiff. It is alleged by the appellant/defendant that the said transaction held on 10.1.1975 in favour of the respondent/plaintiff is only to make delay and defeat the creditors of Shanmuga Udayar. (b) The suit filed by the plaintiff is barred in view of the provisions under O.21, Sub-clause 2 to Rule 58, C.P.C. 7. Emphasising the above contentions, the learned counsel would submit that the plaintiff is not entitled for the relief sought for by him in the suit. 8. With regard to the first point, the learned counsel would submit that the said Shanmuga Udayar has obtained loans from many persons including the said Angammal. The said loan was given by Angammal to the said Shanmuga Udayar on 20.11.1971. Since he failed to repay the said amount to the said Angammal, she instituted a suit and obtained a decree in her favour. Thereafter, she filed a execution petition and brought the suit property for attachment and subsequently, the sale was effected. 9. In this connection, the learned counsel would point out that the said Shanmuga Udayar obtained loan not only from Angammal but also from various persons. In order to delay and defeat the creditors, the said Shanmuga Udayar in anticipation of facing civil litigation from his creditors, he executed a sale deed in favour of the respondent/plaintiff on 10.1.1975 under Ex.A-1, sale deed. 10. It is pointed out that no consideration was passed on to Shanmuga Udayar and no title also passed on to the respondent/plaintiff. It is contended that the respondent/plaintiff has never been in possession of the suit property under any circumstances. 11. With regard to the second contention, the learned counsel would emphasise that the suit filed by the respondent/plaintiff not maintainable for the reason that the said suit is barred in view of the provisions under O.21, Sub-clause 2 to Rule 58, C.P.C. 12. In this connection, the learned counsel appearing for the respondent/plaintiff would contend that the said sale effected between Shanmuga Udayar and the palintiff on 10.1.1975 is a valid one and is supported by consideration. In this connection, the learned counsel appearing for the respondent/plaintiff would contend that the said sale effected between Shanmuga Udayar and the palintiff on 10.1.1975 is a valid one and is supported by consideration. After the execution of the sale deed, the title and interest of the suit property was passed on to the respondent/plaintiff. A plain reading of Ex.A-1 would clearly reveal that the sale deed was executed by Shanmuga Udayar and on behalf of his minor sons in order to close the debts, which were received by him from various persons including from one Chinna Thambi Udayar on various occasions. In order to repay the said amount to those persons, Shanmuga Udayar executed the sale deed in favour of Kannappa Udayar. 13. Further, the learned counsel would submit that after the execution of the sale deed, the said Kannappa Udayar during the year 1982, executed a sale deed in favour of one Panneerselvam on 3.9.1982 under Ex.A-2. 14. In this connection, it is seen that a portion of the property was sold to the said Panneerselvam out of the property purchased by Kannappa Udayar from Shanmuga Udayar. One another debt was paid by Shanmuga Udayar and Kannappa Udayar in favour of Kottaiyur Angammal in connection with the money suit in O.S.No.861 of 1981 under Ex.A-3. 15. On a careful perusal of Exs.A-2 and A-3, it is clearly established that the purchase of the suit property by Kannappa Udayar under Ex.A-1 was acted upon and on the strength of the suit property purchased by him under Ex.A-1. 16. It is pointed out that in order to establish the case of the respondent/plaintiff, the plaintiff produced the kist receipt, Exs.A-4 to A-6. It is pointed out that once a sale deed executed on the basis of sale consideration, the ownership of title passed on to Kannappa Udayar and thereafter, the said Kannappa Udayar executed a sale deed in favour of Chinna Thambi Udayar under Ex.A-2. In such circumstances, it is pointed out that the respondent/plaintiff has derived title and interest over the suit property. In such circumstances, it could not be contended that the sale deed executed by Shanmuga Udayar in favour of Kannappa Udayar under Ex.A-1 is not a valid one. 17. With regard to the second point, the learned counsel would submit that the suit filed by the respondent/plaintiff is not at all maintainable under law. In such circumstances, it could not be contended that the sale deed executed by Shanmuga Udayar in favour of Kannappa Udayar under Ex.A-1 is not a valid one. 17. With regard to the second point, the learned counsel would submit that the suit filed by the respondent/plaintiff is not at all maintainable under law. The reasons stated by the learned counsel could not be accepted for the reason that the decisions relied n by the learned counsel reported in Saithew Mohammed v. Abdul Khader, A.I.R.1965 Ker.110 on the basis of the provisions under O.21, Rule 63, C.P.C. are not applicable to the facts of this case for the reason that the provisions under O.21, Rule 60 to 63 have already been repealed by amendment Act 104 of 1976. 18. It is pointed out that the said application filed by the respondent/plaintiff on 21.1.1993, which is after the date of sale i.e. On 3.1.1993, the said application is not maintainable in view of the provisions under O.21, Rule 53(1), C.P.C. After the withdrawal of the above application, the plaintiff has come forward to institute the suit for the relief of declaration of title and permanent injunction. It is pointed out that the said suit filed by the plaintiff is maintainable. 19. Further, it is emphasised that based on the title and interest which were passed on under Ex.A-1 in favour of the plaintiff, the plaintiff has come forward to safeguard his interest and title of the suit property and accordingly, he instituted the suit. In such circumstances, it is pointed out that the said contention raised by the appellant/defendant is not at all sustainable and it could not be considered for the reasons stated above. 20. The learned counsel appearing for the appellant/defendant would contend that the sale deed which was alleged to have been executed by Shanmuga Udayar in favour of plaintiff is not supported by consideration and the same was executed by Shanmuga Udayar only to defeat and delay rights of his creditors and the said sale was not at all supported by consideration. In such circumstances, not title or interest passed on to the plaintiff under Ex.A-1. In such circumstances, not title or interest passed on to the plaintiff under Ex.A-1. The said contention can be considered if the defendant has come forward to implead the said Shanmuga Udayar as one of the parties to this proceedings and on the basis of such impleadment of necessary parties, the relevant contentions can be raised by way of filing written statement. It is seen that the defendant has not at all come forward to implead Shanmuga Udayar as a necessary party to this proceedings and contend that no consideration was passed on to the plaintiff. Further, no such relevant plea with regard to this contention has been stated in the written statement. 21. Since the defendant has raised this contention against the plaintiff, the burden lies only on the defendant to disprove the case of the palintiff that the sale deed which was executed by ‘S’ in favour of the plainiff is not supported by valid consideration. In this connection the defendant has miserably failed to establish the same before the court of law. In such circumstanes, the contention of the defendants will in no way be accepted when considering the case stated and established by the plaintiff. 22. In the light of the discussions held above and when the defendant has not come forward to adduce oral evidence and to produce documentary evidence to disprove the case of the plaintiff, this court does not find any valid reasons to interfere with the decision arrived at by the lower appellate Court. The substantial question if law are answered against the appellant. 23. In result, the second appeal fails and it is dismissed. No costs.