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2008 DIGILAW 1752 (MAD)

Narashima Naidu v. Gowramma & Others

2008-06-13

R.BANUMATHI

body2008
Judgment :- Being aggrieved against the Judgment in A.S. No.20 of 1988 on the file of the Sub-Court, Krishnagiri, reversing the Judgment of the trial court, the Plaintiff has preferred this Second Appeal. 2. Plaintiff purchased the suit properties – S.No.456 – 2.80 acres and S.No.455 – 2.23 acres under a sale deed dated 27.07.1976 for consideration of Rs.3200/- from the first Defendant. The case of the Plaintiff is that ever since the sale deed in his favour, he is in absolute possession and enjoyment of the same in his own right. The second Defendant had filed a Suit against the first Defendant in O.S.No.130 of 1976 on the file of the District Munsif Court, Hosur, for maintenance of herself and the third Defendant. Defendants 2 and 3 have obtained a decree in O.S. No.130 of 1976 for their maintenance and a charge was also created in some of the family properties. Pursuant to the decree in O.S. No.130 of 1976, Defendants 2 and 3 filed Execution Petition in R.E.P.No.83 of 1978 in O.S. No.130 of 1976 and the attachment was made to bring the suit properties to sale. According to the Plaintiff, he is a bonafide purchaser for value and the charge created over the properties was not made known to him and therefore, the Plaintiff has filed the Suit for declaration of his title to the suit properties and for restraining Defendants 2 and 3 by a permanent injunction from bringing the suit properties to sale, in the decree in O.S. No.130 of 1976. 3. The second Defendant has filed the written statement stating that she has obtained a decree on 29.03.1977. On the basis of the decree, second Defendant had also filed R.E.P.No.36 of 1977. According to the second Defendant, the Plaintiff is not a bonafide purchaser for value and the Plaintiff is not having a legal title and the sale is not bonafide and is affected by doctrine of lis pendens. The alleged consideration was not used for the family necessity or for the benefit of minor and the Suit is liable to be dismissed. 4. On the above pleadings, five Issues were framed before the trial court. On the side of the Plaintiff, three witnesses were examined and Exs.A1 to A4 were marked and on the side of the Defendants, two witnesses were examined and Exs.B1 to B7 were marked. 4. On the above pleadings, five Issues were framed before the trial court. On the side of the Plaintiff, three witnesses were examined and Exs.A1 to A4 were marked and on the side of the Defendants, two witnesses were examined and Exs.B1 to B7 were marked. Upon consideration of oral and documentary evidence, the trial court held that Ex.A1 sale deed is not a collusive transaction and answered Issue No.1 accordingly. The contention of the second Defendant that Ex.A1 sale deed was executed to defeat the lawful right of the Defendants is not supported by any evidence and on those findings, the trial court decreed the suit. 5. Being aggrieved by the Judgment of the trial court, Defendants 2 and 3 have preferred the appeal. The first Appellate Court held that inspite of knowing that there was a charge over the properties, the Plaintiff had knowingly purchased the suit properties. The lower Appellate court further held that the second Defendant objected to the registration of the sale deed under Ex.B4 and inspite of the same, the Plaintiff had purchased the same by colluding with the Plaintiffs husband. Pointing out that the sale deed was registered two months after Ex.B4 objection, the lower Appellate Court took the view that Ex.A1 sale deed was executed with a view to defeat the maintenance claim of the Defendants 2 and 3. The lower Appellate Court further held that the Plaintiff belonging to that area must have known about the dispute between the husband and wife and the suit filed by the second Defendant for maintenance and on those findings reversed the Judgment of the trial court. 6. Being aggrieved by the Judgment of the first Appellate Court, the Plaintiff has preferred this Second Appeal. The following substantial question of law was formulated for determination in the Second Appeal: "Whether the lower appellate court erred in law in holding that there is a valid charge on the suit property covered by sale deed under Ex.A.1 dated 27. 1976 towards maintenance of respondents 1 and 2 by virtue of decree in O.S.130 of 1976? " 7. Challenging the impugned Judgment, the learned counsel Mr. V. Raghavachari, appearing for the Appellant submitted that when there was no proper appreciation of oral and documentary evidence, the High Court can interfere with the findings of the lower Appellate Court. 1976 towards maintenance of respondents 1 and 2 by virtue of decree in O.S.130 of 1976? " 7. Challenging the impugned Judgment, the learned counsel Mr. V. Raghavachari, appearing for the Appellant submitted that when there was no proper appreciation of oral and documentary evidence, the High Court can interfere with the findings of the lower Appellate Court. The learned counsel for the Appellant would further submit that the Plaintiff having purchased the property for valuable consideration and that he was also put in possession of the same and patta was also issued in his name, the lower Appellate court brushed aside the recitals in the sale deed and also other evidence adduced by the Plaintiff. Assailing the findings of the lower Appellate court, the learned counsel for the Appellant further submitted that the delay in registration of sale deed after two months would vitiate the transaction is perverse and unsustainable. 8. In this Second Appeal, the Respondents were served with notice, but they have not entered appearance. The names of the Respondents were printed in the cause list. 9. It is well settled that High Court while considering the matter in exercise of its jurisdiction in the Second Appeal, normally, it would not reverse the finding of fact. But where the finding of the court on facts are vitiated by non-consideration of relevant evidence or where there is erroneous approach to the matter, the High Court is not precluded from interfering with the factual finding. 10. In (2002) 2 SCC 440 (Neelakantan and others v. Mallika Begum) the Supreme Court held the High Court while considering the matter in exercise of its jurisdiction in second appeal or civil revision would not reverse the finding of fact as recorded by the courts below. But it is not an absolute proposition. In a case where the finding is recorded without any legal evidence on the record, or on misreading of evidence or suffers from any legal infirmity, which materially prejudices the case of one of the parties or the finding is perverse, it would be open to the High Court to set aside such a finding and to take a different view. 11. 11. In 2006-2-L.W-40 (Ramlal and another v. Phagua and others), the Supreme Court has held where the lower Courts have concurrently erred in not appreciating the oral and documentary evidence properly, the High Court is at liberty to re-appreciate the evidence and record its own conclusion for reversing the order passed by the lower Court. 12. Viewed in the light of the above principles, in my considered view, the lower Appellate court has ignored the weight of evidence on record altogether and the impugned findings of the lower Appellate Court are only surmises and the same cannot be sustained. Plaintiff purchased the suit properties S.No.456 – 2.80 acres and S.No.455 – 2.23 acres in Pidaradi village under Ex.A1 sale deed dated 27.07.1976 for Rs.3200/-. The recitals in Ex.A1 sale deed would make it clear payment of consideration of Rs.3200/-. 13. The second Defendant, wife of the vendor had obtained a decree for maintenance in O.S. No.130 of 1976 dated 29.03.1977. The lower Appellate Court appears to have proceeded on the premise in O.S.No.130 of 1976 for maintenance payable to the second Defendant, charges were created on the suit properties also. By perusal of Ex.B1 decree in O.S. No.130 of 1976, it is seen that charge was created only in respect of S.Nos.328, 435, 280, 227/1 and 427 of Kothapalli village. The present suit properties Survey Nos.456 and 455 were not shown in the A schedule in O.S.No.130 of 1976 and it appears that no charges were created on the suit S.Nos.456 and 455. The lower Appellate court does not appear to have kept in view the items of properties over which charge was created in O.S. No.130 of 1976. 14. R.E.P.No.83 of 1978 was filed on 211. 1978. Only in the Execution petition, the present suit properties viz., S.Nos.456 and 455 were shown as properties to be attached along with other items. When the suit Survey numbers were not shown as items in the Schedule in O.S. No.130 of 1976, there is nothing to show that charges were created on these items also. The lower Appellate court appears to have brushed aside this aspect and committed factual error in holding that charges were created in S.Nos.456 and 455 also. 15. Ex.B4 objection preferred by the second Defendant before the Sub Registrar seems to have been substantially weighed in the mind of the lower Appellate court. The lower Appellate court appears to have brushed aside this aspect and committed factual error in holding that charges were created in S.Nos.456 and 455 also. 15. Ex.B4 objection preferred by the second Defendant before the Sub Registrar seems to have been substantially weighed in the mind of the lower Appellate court. Ex.A1 sale deed was executed on 27.07.1976. The second Defendant has filed Ex.B4 objection before the Sub Registrar on 22.07.1976 raising objection for registration of sale deed. Though, Ex.A1 sale deed was executed on 27.07.1976 document was registered only in September 1976 nearly two months after its execution. Pointing out the delay in registration of the document, the lower Appellate court drew inference that the document was registered after two months only to get over the objections made by the second Defendant. It is relevant to note that it was not even suggested to P.W.1 that Ex.A1 sale deed was registered in September 1976 only to get over the objections. It is also relevant to note that Ex.B4 objection was not sent to the Plaintiff. While so, the Plaintiff cannot be imputed with knowledge of the suit in O.S. No.130 of 1976 or the objection preferred by the second Defendant for registration of the document. The inference drawn by the lower Appellate court is only based on surmises. 16. The lower Appellate court erred in holding that Pidaradi is a small village and the Plaintiff must have known about the dispute between the husband and wife. In my considered view, such a finding is not supported by material evidence. Assuming that the Plaintiff had known about the dispute between the husband and wife, it cannot be said that he had known about the litigation and creation of charge over the properties. 17. In a charge there is no transfer of interest in the property, but there can be creation of right on payment out of property specified. As such, it cannot be enforced against the bonafide purchaser for value. In other words, charges are not enforceable against the transferee for consideration without notice. As pointed out earlier, the Plaintiff had purchased the property for consideration of Rs.3200/-and he is a bonafide purchaser for value. Without any notice to the Plaintiff, it cannot be said that the Plaintiff had notice of charges created and the substantial question of law is answered accordingly. 18. As pointed out earlier, the Plaintiff had purchased the property for consideration of Rs.3200/-and he is a bonafide purchaser for value. Without any notice to the Plaintiff, it cannot be said that the Plaintiff had notice of charges created and the substantial question of law is answered accordingly. 18. Before the courts below, the second Defendant had also taken the plea that Ex.A1 sale deed dated 27.07.1976 is hit by doctrine of lis pendens. The Plaintiff was not added as party in O.S. No.130 of 1976 nor any notice was sent to the Plaintiff about the pendency of O.S. No.130 of 1976. While so, in my considered view the doctrine of lis pendens cannot be invoked. 19. The findings of the lower Appellate court are only misreading of evidence and based on conjecture and surmises and the findings of the lower Appellate court cannot be sustained. Where the findings of the lower Appellate court is based on non-appreciation of oral and documentary evidence and the conduct of the parties in a proper perspective, the factual findings of the lower Appellate court warrant interference. The findings of the trial court is based on the proper appreciation of evidence and the same was erroneously reversed by the lower Appellate court and therefore, the Judgment of the lower Appellate court is liable to be set aside. 20. In the result, the Judgment of the lower Appellate Court in A.S. No.20 of 1991 dated 21.01.1995 on the file of the Sub Court, Krishnagiri is set aside and this Second Appeal is allowed. The Judgment of the trial court in O.S. No.86 of 1979 dated 110. 1983 on the file of the District Munsif Court, Hosur is confirmed. No costs.