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2010 DIGILAW 2465 (MAD)

Ponnusamy v. K. K. Subramaniam

2010-06-21

P.R.SHIVAKUMAR

body2010
Judgment :- The appeal and cross objection have been filed against the judgment and decree of the trial court, namely the court of the Additional District Judge (Fast Track Court No.2), Gobichettipalayam dated 19.09.2002 made in O.S.No.1 of 2001 on the file of the said court. The plaintiffs 1 to 3 in the original suit are the appellants in A.S.No.748 of 2002. The suit was filed for a declaration and consequential injunction. The suit was partly decreed granting the relief of injunction and declining to grant the relief of declaration. As against the dismissal of the suit regarding the relief of declaration, the present appeal has been filed. As against that part of the decree granting the relief of injunction, the defendant has preferred the cross objection No.34 of 2003. 2. The case of the appellants as per the contents of the plaint filed by them as plaintiffs, in brief, can be stated thus:- The appellants/plaintiffs are the absolute owners of the property described in plaint schedule, which is an undivided common half share of the land having an extent of 0.11.0 hectare comprised in old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettiplayam Taluk. The entire extent of 0.11.0 hectare was the ancestral properties of the appellants/plaintiffs. They wanted to construct a rice mill over the said property and run it with the help of the respondent/defendant, a close relative of the third appellant/third plaintiff. The respondent/defendant demanded conveyance of an immovable property in his favour to enable him to join as a partner in the proposed rice mill. Hence a sham and nominal sale deed was executed and registered on 04.07.1974 in respect of the suit property, namely common half share of 0.11.0 hectare land comprised in old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettiplayam Taluk, in favour of the respondent/defendant. As the said sale was sham and nominal, no consideration was received from him and the title and possession of the property continued to rest with the appellants/plaintiffs. The original sale deed was also not handed over to the respondent/defendant and the same was retained by the third appellant/third plaintiff. Patta had been issued in the name of the third appellant/third plaintiff. Since the sale was sham and nominal, the respondent/defendant did not take steps to get the patta transferred in his name. The original sale deed was also not handed over to the respondent/defendant and the same was retained by the third appellant/third plaintiff. Patta had been issued in the name of the third appellant/third plaintiff. Since the sale was sham and nominal, the respondent/defendant did not take steps to get the patta transferred in his name. However, the rice mill building, machineries and other affixtures alone were used as the properties of the partnership firm having the appellants/plaintiffs and the respondent/defendant as partners. In the rice mill alone, excluding the land on which the rice mill has been built, the respondent/defendant had got a common half share, whereas the appellants/plaintiffs were jointly entitled to the other half. By a partition deed dated 06.09.1984, the appellants/plaintiffs divided the 3/6 share in the building, machineries, electric service connection and license of the rice mill alone among themselves and each one of them was allotted 1/6 share. On 05.09.1984, the plaintiffs 2 and 3 conveyed their share in the rice mill in favour of the first appellant/first plaintiff under a registered sale deed. Hence the first appellant became the sole partner of the respondent in respect of the rice mill. The understanding between the appellants and the respondent was that all the appellants together should invest Rs.75,000/-and the respondent should invest Rs.75,000/-and as such, in the rice mill business to be started with the said capital, respondent/defendant would be entitled to 50% of the profit, whereas the appellants/plaintiffs together would be entitled to the other 50% of the profit. It was also a specific understanding that the respondent/defendant would not have any right in the land and he would not claim any right under the sale deed dated 04.07.1974. The necessary building for the mill was constructed and the machineries were erected in 1976 and the mill was started functioning from 1977, after obtaining necessary license. Till January, 1998, the mill was run profitably and the profit was shared as per the above mentioned understanding. Thereafter, due to the noncooperation on the part of the respondent/defendant, there arose problems in running the rice mill. When the respondent/defendant was asked to pay 50% of the electricity consumption charges, he refused to pay the same. Therefore, the production in the rice mill was stopped. Thereafter, due to the noncooperation on the part of the respondent/defendant, there arose problems in running the rice mill. When the respondent/defendant was asked to pay 50% of the electricity consumption charges, he refused to pay the same. Therefore, the production in the rice mill was stopped. Under such circumstances, with the intention of causing loss to the appellants/ plaintiffs and to make wrongful gain to himself, the respondent/defendant issued a notice dated 26.03.1998 seeking dissolution of the partnership and appointment of arbitrators for taking accounts and dividing the properties of the partnership firm. The said notice was suitably replied. Despite the same, on 28.05.1998, the respondent/defendant tried to dig pits and plant coconut saplings in the suit property and the said attempt was successfully thwarted. Under such circumstances, the appellants/plaintiffs were constrained to file the suit for a declaration that they are the absolute owners of the suit property and for an injunction against the respondent/defendant not to cause any disturbance to the appellants/plaintiffs possession and enjoyment of the suit property. 3. The suit was resisted by the respondent/defendant (cross-objector) by filing a written statement containing allegations, which are summarised as follows:- The plaint averment that the sale deed dated 04.07.1974 made in favour of the respondent/defendant was sham and nominal, is false. The same is a genuine sale transaction, in which the respondent/defendant got title to an undivided half share in the property comprised in old Survey No.144A and new Survey No.15/7 having an extent of 0.11.0 hectare in Irugalur village, Gobichettiplayam Taluk, over which the mill building, drying yard, etc. situate. From the date of the said sale deed, the defendant became a joint owner along with the plaintiffs and the license to run the rice and oil mill in the name and style of "Sri Vijayalakshmi Rice and Oil Mill" was applied for and obtained jointly in the names of the respondent/defendant and the third appellant/third plaintiff. The same was started in 1974. The said rice and oil mill business is a partnership business run by the respondent/defendant and the third appellant/third plaintiff, both of them having contributed equal amount for the purchase of machineries and for the construction of the building. The said partnership is a partnership at will. The same was started in 1974. The said rice and oil mill business is a partnership business run by the respondent/defendant and the third appellant/third plaintiff, both of them having contributed equal amount for the purchase of machineries and for the construction of the building. The said partnership is a partnership at will. While the business was running smoothly, in or about the month of February 1998, the appellants/plaintiffs, due to misunderstanding, locked the rice mill premises and stopped the business. Hence the respondent/defendant was convinced that it was no longer feasible to continue the said partnership business and that it was fit to dissolve the said partnership. With the said object in view, the respondent/defendant issued a notice dated 26.03.1998 dissolving the partnership with effect from 01.04.1998. The said notice was received by the plaintiffs and hence the partnership stood dissolved with effect from 01.04.1998. Following the said notice, the respondent/defendant filed a suit in O.S.No.124/1998 against the appellants/plaintiffs for settlement of accounts and distribution of assets of the firm and such suit is pending. Under such circumstances, the appellants/plaintiffs have come forward with the frivolous suit. The sale deed dated 04.07.1974 under which the respondent/defendant purchased half share in the land over which the mill has been constructed had been kept in the mill premises along with other documents for making it readily available to the officials who might visit the mill for inspection and in February, 1998, while locking the mill premises, the appellants/plaintiffs took away the sale deed from the mill. The mere fact that the sale deed under which the respondent/defendant purchased half share in the property is now available with the appellants/plaintiffs, shall not confer any title on them and the same will not, in any way, affect the title and interest of the respondent/defendant in the suit property. The alleged partition deed dated 06.09.1984 and the sale deed dated 05.09.1984, shall not be binding on the respondent/defendant. The appellants/plaintiffs shall not have a right to have the mill premises locked and the entry of the respondent/defendant to the mill premises denied. They are not entitled to do so. In law, the respondent/defendant is entitled to have access to the suit mill premises and enjoyment of the land on which it is being run. The appellants/plaintiffs shall not have a right to have the mill premises locked and the entry of the respondent/defendant to the mill premises denied. They are not entitled to do so. In law, the respondent/defendant is entitled to have access to the suit mill premises and enjoyment of the land on which it is being run. The relief of declaration sought for by the appellants/plaintiffs on the premise that the sale deed in favour of the respondent/defendant is sham and nominal, is not sustainable. Though the respondent/defendant does have a right of access to the mill premises and the business, the averment that the respondent/defendant attempted to trespass into the suit property and plant coconut saplings, as a fact constituting the cause of action, is nothing but a false and imaginary one. There is no cause of action for seeking the relief of injunction also. In any event, the plaintiffs cannot seek such an injunction against the respondent/defendant, a co-owner. For all the reasons stated above the suit should be dismissed. 4. Based on the above said pleadings, the trial court framed the following issues:- i) Whether the plaintiffs are entitled to get the relief of declaration as prayed for? ii) Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? iii) To what relief, the plaintiffs are entitled? 5. The parties went for trial based on the above said pleadings, in which two witnesses were examined as P.Ws.1 and 2 and five documents were marked as Exs.A1 to A5 on the side of the appellants/plaintiffs, whereas two witnesses were examined as D.Ws.1 and 2 and six documents were marked as Ex.B1, Ex.B1A and Exs.B2 to B5 on the side of the respondent herein/defendant. The learned trial judge considered the pleadings and evidence in the light of the points urged in the arguments submitted on both sides and, upon such consideration, came to the conclusion that the appellants/plaintiffs plea that sale deed dated 04.07.1974 was sham and nominal, was not substantiated. Consequently, the learned trial judge dismissed the suit so far as the relief of declaration is concerned. However holding that the appellants/plaintiffs continued to be in possession and management of the mill, the learned trial judge held that the appellants/plaintiffs were entitled to the relief of injunction. Consequently, the learned trial judge dismissed the suit so far as the relief of declaration is concerned. However holding that the appellants/plaintiffs continued to be in possession and management of the mill, the learned trial judge held that the appellants/plaintiffs were entitled to the relief of injunction. Thus the learned trial judge passed a decree dismissing the suit in respect of the relief of declaration and decreeing the suit in respect of the relief of permanent injunction. 6. Aggrieved by and challenging the decree of the trial court so far as the prayer for declaration is concerned, the appellants/plaintiffs have come forward with the present appeal on various grounds set out in the memorandum of appeal. The respondent/cross-objector/defendant has filed cross-objection No.34 of 2003 questioning the correctness of that part of the decree passed by the trial court granting the relief of permanent injunctions on the grounds set out in the memorandum of cross-objection. 7. This court heard the arguments advanced by Mr. R. T. Doraisamy, learned counsel for the appellants and by Mr. T. Murgamanickam, learned counsel for the respondent/cross-objector. The entire materials available on record were also perused. 8. The following are the points that arise for determination in the appeal and the cross objection:- i) Whether the appellants/plaintiffs are entitled to get the relief of declaration as prayed for by them in the plaint against the respondent/cross objector/defendant? ii) Whether the appellants/plaintiffs are not entitled to the relief of permanent injunction as prayed for by them against the respondent/cross objector/defendant? iii) To what relief the appellants/plaintiffs are entitled? Point No.i 9. The plaintiffs in the suit are the appellants herein. The suit was filed seeking a declaration that the suit property absolutely belonged to the appellants/plaintiffs and for a permanent injunction against the respondent/defendant not to interfere with the appellants/plaintiffs possession and enjoyment of the suit property. The suit property is described to be an undivided common half share of land in old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettiplayam Taluk, within specified boundaries, having an extent of 0.11.0 hectare. The suit property is described to be an undivided common half share of land in old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettiplayam Taluk, within specified boundaries, having an extent of 0.11.0 hectare. The claim of the appellants/plaintiffs for the relief of declaration is based on their contention that the sale deed admittedly executed by the first appellant/first plaintiff and by the third appellant for himself and as guardian of the second appellant, who was then a minor, in favour of the respondent/defendant was a sham and nominal one and hence no transfer of title took place. The relief of injunction has been sought for as a consequential relief mainly on the basis of the above said averments. The suit was resisted by the respondent/defendant contenting that the sale deed under which the suit property was sold to the respondent/defendant was not sham and nominal; that by virtue of the said purchase made, the respondent/defendant became entitled to a common half share in the land having an extent of 0.11.0 hectare comprised in suit old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettiplayam Taluk; that a rice and oil mill business was started in the said property as a partnership business in which the respondent/defendant was entitled to a share of 50% in the profit and that hence the appellants/plaintiffs were not entitled to either the relief of declaration or the relief of injunction. It was also contended by the respondent/defendant that the cause of action alleged for seeking the relief of injunction was false and imaginary. 10. Though the trial court negatived the plea of the appellants/plaintiffs that the sale deed executed in favour of the respondent/defendant in respect of the suit property was sham and nominal and hence held that they were not entitled to the relief of declaration, it has chosen to grant the relief of injunction on the premise that the first plaintiff happened to be in management of the partnership business, namely rice and oil mill business in the name and style of Sri Vijayalakshmi Rice and Oil Mill and that hence the respondent/defendant could not be allowed to interfere with the same and his right shall be confined to seek settlement of accounts and payment of his share on such settlement. When the business is carried on as a partnership business and the partnership is sought to be dissolved claiming the same to be a partnership at will, then the partner who is excluded from the management of the partnership business shall be justified in seeking an injunction restraining the other partner from carrying on the business without settling the accounts and at the same time denying the right of the other partner. However, the learned trial judge chose to grant a decree for perpetual injunction against the respondent/defendant not to interfere with the appellants/plaintiffs possession of the suit property and management of the rice and oil mill. 11. The main question that remains to be considered in this case is whether the sale deed dated 04.07.1974 was sham and nominal effecting no transfer of title in favour of the respondent/defendant and whether the appellants/plaintiffs are entitled to the relief of declaration as prayed for? It is an admitted fact that an extent of 0.11.0 hectare (equal to 26 34/54 cents) of land, within specified boundaries comprised in old Survey No.144A and new Survey No.15/7 in Irugalur village, Gobichettiplayam Taluk belonged to the appellants/plaintiffs as their ancestral joint family property. As such there is no dispute regarding the fact that the appellants 1 to 3 / plaintiffs 1 to 3 did have 1/3 share each in the said property prior to the execution of the disputed sale deed concerned in this case. It is also not in dispute that out of the above said extent of 26 34/54 cents, an undivided half share measuring 13 17/54 cents was purported to be sold under the sale deed dated 04.07.1974 to the respondent/defendant. The said sale deed was registered on the file of the Sub-Registrar, Nambiyur as document No.887/1974. The original sale deed has been produced by the appellants/plaintiffs and marked as Ex.A1. A certified copy of the same has been marked as Ex.B1. It is also not in dispute that the said sale deed was executed by the first appellant and the third appellant/third plaintiff for himself and as the natural guardian of the 2nd appellant, who was then a minor. The suit was filed in the year 1998. At the time of filing of the suit, the appellants 1 and 2 were aged about 45 years and 35 years respectively as per the averment found in the plaint. The suit was filed in the year 1998. At the time of filing of the suit, the appellants 1 and 2 were aged about 45 years and 35 years respectively as per the averment found in the plaint. Therefore, it is quite obvious that 17 years prior to the date of filing of the suit i.e. in 1981 itself, the second appellant attained majority. The first appellant was a major even on the date of Ex.A1 and he was also one of the executants of Ex.A1. The sale under Ex.A1 is not challenged as one executed neither for necessities nor for the benefit of the minor and hence not binding on the appellant No.2/plaintiff No.2 so far as his share in the family property is concerned. In fact when such a sale is made on behalf of the minor also, the minor, on attaining majority should have approached the court for setting aside the sale within three years from the date of attaining majority as per article 60 of Limitation Act. In this case, it has not been done by the second appellant within the said period of limitation after attaining the age of majority. That is the reason why the appellants have taken a stand that the transaction under Ex.A1-sale deed was not at all a valid sale transaction in the eye of law, as the said sale was a sham and nominal one. 12. Of course, it is true that no transfer of title takes place under a sham and nominal deed as it is non-est in the eye of law. But a person who admits the execution of a deed, but claims it to be a sham and nominal deed and that hence no legal transfer of title took place under the said deed, is bound to prove the same by reliable evidence. Such a burden rests heavily on the person alleging the transaction to be sham and nominal. In this case, appellants do admit that Ex.A1-sale deed dated 04.07.1974 was executed and registered in favour of the respondent/defendant. Therefore, the burden of proving it to be a sham and nominal deed heavily lies on the appellants. Such a burden rests heavily on the person alleging the transaction to be sham and nominal. In this case, appellants do admit that Ex.A1-sale deed dated 04.07.1974 was executed and registered in favour of the respondent/defendant. Therefore, the burden of proving it to be a sham and nominal deed heavily lies on the appellants. In support of their contention that Ex.A1 sale deed is a sham and nominal one, the appellants have contended that even after the execution of the said deed, the same was not handed over to the respondent/defendant, but was retained by the third appellant since no amount was paid as consideration by the respondent/defendant for the said transaction. It is also their contention that right from the date of execution of Ex.A1, the respondent/defendant did not exercise any right as the owner of the property sought to be conveyed under Ex.A1; that the revenue records continued to stand in the names of the appellants and that the said deed was executed as a sham and nominal deed on the insistence of the respondent/defendant as a condition for becoming a partner of the rice and oil mill business proposed to be started with a specific understanding that no right would be claimed by the respondent/defendant under the said document. 13. In this regard, the appellants also rely on two more documents, namely Ex.A2 and A3. Ex.A2 is the certified copy of the RSR register for the entire extent of 0.11.0 hectare comprised in survey No.15/7 in the name of the third appellant Avinashi Gounder. Ex.A3 is the chitta extract in the name of appellants 1 and 2 herein. Even though partition among the appellants was effected in 1984, the mutation of revenue records in the names of the appellants 1 and 2 was made only in 1994. Similar document was filed by the respondent/defendant as Ex.B2 issued in the year 1999 in the names of appellants 1 and 2 and the respondent/defendant for the extent of 0.11.0 hectare comprised in Survey No.15/7. Though such a document was filed by the respondent/defendant to show that the property was assessed for revenue jointly in the names of appellants 1 and 2 and the respondent, the respondent/defendant has admitted that patta was not changed in his name pursuant to the purchase made by him under Ex.A1. Exs.A4 and A5 are notice and copy of the reply notice. Exs.A4 and A5 are notice and copy of the reply notice. From Exs.A2 and A3 coupled with the oral testimony of the witnesses examined on either side, it can be inferred that the revenue records continued to be in the name of Avinashi Gounder, which came to be transferred in the names of appellants 1 and 2/plaintiffs 1 and 2 subsequently and that no mutation of name in the revenue records was effected pursuant to the execution of Ex.A1-sale deed. But whether the mere fact that mutation of name was not effected in the revenue records pursuant to the sale made under Ex.A1 and the further fact that patta continued to stand in the name of the third appellant and then in the names of the first and second appellants, shall be enough to hold that Ex.A1-sale deed is a sham and nominal one? The answer shall be in the negative. Unless the appellants/plaintiffs are able to prove that the said document was not given effect to and was not acted upon and that the said document was executed as a sham and nominal one without intending to effect a transfer of title, the appellants/plaintiffs shall not succeed in discharging the burden cast upon them. 14. In this regard, even though the appellants/plaintiffs would have stated that no consideration did pass for the purported transfer of title under Ex.A1, there is lack of reliable evidence adduced on the side of the appellants/ plaintiffs. P.W.1 is none other than the first appellant/first plaintiff. As such the interested testimony of P.W.1 shall be approached with caution. Though the case of the appellants is that Ex.A1 sale is a sham and nominal one and P.W.1 would venture to state that the said transaction under Ex.A1 was a sham and nominal one, during cross-examination he admitted that he did not know the meaning of a sham and nominal transaction "epg fpiuak; vd;why; vdf;F mh;j;jk; bjhpahJ". P.W.1 was one of the executants of the said sale deed and hence was a signatory to Ex.A1 - sale deed. The above said admission made by him that he does not know the meaning of a sham and nominal deed coupled with the further fact that he has chosen to state that all the three appellants signed the said sale deed, which is incorrect, will greatly impair the reliability of the evidence of P.W.1. The above said admission made by him that he does not know the meaning of a sham and nominal deed coupled with the further fact that he has chosen to state that all the three appellants signed the said sale deed, which is incorrect, will greatly impair the reliability of the evidence of P.W.1. The document was signed by the first appellant (P.W.1) and Avinashi Gounder (third appellant) for himself and as the guardian of the second appellant. As against the said fact P.W.1 has chosen to state that all the three have signed the document. Furthermore, the third appellant Avinashi Gounder did not enter the witness box to give evidence in support of the contention of the appellants that Ex.A1-sale deed was a sham and nominal one. None of the witnesses, who attested the document, has been examined on the side of the appellants. On the other hand, one pongiannan, who claims to have knowledge of the circumstances under which Ex. A1-sale deed was executed has deposed as P.W.2. He would state in the chief examination that Ex. A1-sale deed was executed as a sham and nominal deed. He has also committed the very same mistake committed by P.W.1 by stating that all the three appellants affixed their signatures in the sale deed. Though P.W.2 would have stated in the chief examination that the sale deed was executed as a sham and nominal deed, during cross-examination he has admitted that he did not know whether the third appellant Avinashi Gounder received the sale consideration quoted in the sale deed either at the time of execution of the deed or prior to the execution of the said sale deed. Therefore, the evidence of P.W.2 also shall not lend any support to the case of the appellants that Ex.A1-sale deed was a sham and nominal one. 15. Apart from the oral evidence, the appellants also seem to have relied on the fact that the property was dealt with by the appellants among themselves, as if they alone were the owners of the entire extent of 0.11.0 hectare comprised in new survey No.15/7, Irugalur village, Gobichettipalayam Taluk. Those transactions are a partition deed dated 06.09.1984 and a sale deed dated 05.09.1984. Those transactions are a partition deed dated 06.09.1984 and a sale deed dated 05.09.1984. Though the appellants/plaintiffs might have chosen to produce the said documents in another case filed by the respondent herein, namely O.S.No.124/1998 which was tried simultaneously along with the suit concerned in this appeal, they have not chosen to produce at least the certified copies of the said documents in this case. However, the respondent/defendant has chosen to produce the certified copies of those two documents as he was of the view that those two documents would not lend any support to the case of the appellants and on the other hand, would lend support to the defence case of the respondent/defendant. They have been marked as Exs.B5 and B1A respectively. 16. An attempt has been made by the appellants to show that under the partition deed, a certified copy of which has been marked as Ex.B5, the land was not divided and the building, machinery, electricity connection and the license of Sri Vijayalakshmi Rice and Oil Mill alone were divided among the appellants. Admittedly, the said business, namely rice and oil mill business was run as a partnership business, in which the respondent/defendant did have 50% share and the appellants 1 to 3 jointly owned the other 50% share. It is also admitted that the profit earned from the business was shared in the above said ratio. It is also an admitted fact that the respondent/defendant contributed an amount equal to the amount contributed by all the appellants together as his share capital in the business. When that is so, if at all the land over which the building was constructed and the mill was run entirely belonged to the appellants alone, either the share of the respondent/defendant in the profit would have been fixed at a lesser rate than 50% or else there could have been an understanding that a fixed amount shall be paid to the appellants as rent for the land over which the mill is situated. No such arrangement has been made. The said factor will be a point against the appellants, who have claimed that the entire land belonged to them. Even those documents under which the appellants claimed to have dealt with the entire extent of 0.11.0 hectares to be one belonging to the appellants alone, do not support the above said case of the appellants/plaintiffs. 17. The said factor will be a point against the appellants, who have claimed that the entire land belonged to them. Even those documents under which the appellants claimed to have dealt with the entire extent of 0.11.0 hectares to be one belonging to the appellants alone, do not support the above said case of the appellants/plaintiffs. 17. The appellants made an unsuccessful attempt to show that at the first instance there was a partition and thereafter the shares allotted to the appellants 2 and 3 were sold to the first appellant/first plaintiff. But, it is pertinent to note that the partition deed is dated 06.09.1984, whereas the sale deed is dated 05.09.1984. Of course it is obvious from the said documents that the partition deed was registered earlier and the sale deed was registered subsequently. It is pertinent to note that not only the mill premises but also the house property was sought to be divided among the appellants under the original of Ex.B5-partition deed. In all those other properties, each one of the appellants was allotted 1/3 share which will go to show that the other properties which were the subject matter of partition excepting the mill premises were owned by the appellants 1 to 3 to the exclusion of others and that is why all the three got 1/3 share each. But so far as the mill premises was concerned, each one of the appellants was allotted a common 1/6 share alone. The shares allotted to all the three appellants put together make only half of the mill premises. This was so because the other half had already been sold to the respondent/defendant under Ex.A1-sale deed. The recitals found in Ex.B5-will clearly rule out the admissibility of the contention made by the appellants that the half share belonged to the appellants in the building, machinery and license of the rice and oil mill, excluding the land, alone were sought to be divided under the partition. What was divided under the original of Ex.B5 was not only the share of the appellants in the building, but also their share in the land over which the mill is situated. Mill includes the drying yard also. That is the reason why each one of the appellants was allotted 1/6 share alone in the mill premises, whereas in respect of the house properties, each one was allotted 1/3 share. Mill includes the drying yard also. That is the reason why each one of the appellants was allotted 1/6 share alone in the mill premises, whereas in respect of the house properties, each one was allotted 1/3 share. Similar is the position of the recitals found in the sale deed dated 05.09.1984, a certified copy of which has been marked as Ex.B1A. Under Ex.B1A, the appellants 2 and 3 have purported to sell their 2/3 share in all other properties and their 2/6 share in the rice and oil mill. The same will go to show that the sale under Ex.A1 was not only genuine but also was the one recognised, acted upon and given effect to by the appellants themselves. 18. For the production of the original sale deed as Ex.A1 from the custody of the appellants, the respondent/defendant has come forward with a clear explanation that the said document had been kept in the mill premises for inspection by the officials, who might come to the mill for checking and that when the first appellant locked the mill and barred the entry of the respondent/defendant into the mill took away the document from the mill premises. The said contention of the respondent/defendant has been substantiated by the evidence of D.W.1, the respondent/defendant himself. In addition to that, D.W.2-Palanisamy has deposed on the side of the respondent/defendant to the effect that he knew the execution of Ex.A1-sale deed and that the sale consideration quoted in the deed, namely Rs.500/-was paid by the respondent/defendant to the third appellant, a week prior to the date of execution of the sale deed. Even if such a witness was not examined by the respondent/defendant, the appellants would not have gained any advantage. Since they have come forward with the suit based on their plea that Ex.A1-sale deed was a sham and nominal one they are bound to prove it by reliable evidence. As pointed out supra, the burden of proof lies heavily on the appellants. 19. Since they have come forward with the suit based on their plea that Ex.A1-sale deed was a sham and nominal one they are bound to prove it by reliable evidence. As pointed out supra, the burden of proof lies heavily on the appellants. 19. In Vimal Chand Ghevarchand Jain & Others vs. Ramakant Eknath Jajoo reported in 2009 (2) CTC 858, the Honble Supreme Court has made the following observations:- "The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction." Relying on earlier decisions of the Honble Supreme Court in i) R.Janakiraman v. State, rep. by Inspector of Police, CBI, SPE, Madras reported in 2006 (1) SCC 697 , ii) Roop Kumar v. Mohan Thedani reported in 2003 (6) SCC 595 and iii) State Bank of India & Anr. v. Mula Sahakari Sakhar Karkhana Ltd., reported in 2006 (6) SCC 293 to the effect that when a character of the document is questioned, extrinsic evidence by way of oral evidence is admissible, the Honble Supreme Court in the above cited case, namely Vimal Chand Ghevarchand Jain & Others vs. Ramakant Eknath Jajoo reported in 2009 (2) CTC 858, made the following observations:- "A heavy burden of proof lay upon the defendant to show that the transaction was a sham one. It was not a case where the parties did not intend to enter into any transaction at all. Admittedly, a transaction had taken place. Only the nature of transaction was in issue. A distinction must be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of law at all and the nature and character of a transaction as reflected in a deed of conveyance. The construction of the deed clearly shows that it was a deed of sale. The stipulation with regard to payment of compensation in the event appellants are dispossessed was by way of an indemnity and did not affect the real nature of transaction." 20. The construction of the deed clearly shows that it was a deed of sale. The stipulation with regard to payment of compensation in the event appellants are dispossessed was by way of an indemnity and did not affect the real nature of transaction." 20. In this case, admittedly the property was used for running a rice and oil mill in the name of Sri Vijayalakshmi Rice and Oil Mill as a partnership business. It is also not in dispute that the building for the mill was constructed and the machineries were purchased using the capital raised for which the respondent/defendant contributed 50%. It is also an admitted fact that the respondent/defendant was receiving 50% of the profit as his share. It is quite obvious that the property described in the suit was used by the partnership concern for running the rice and oil mill. Therefore, merely because patta had not been transferred and it was allowed to remain in the name of one of the appellants, it cannot be assumed that the respondent/defendant did not take possession and was out of possession. The possession by the third appellant and subsequently by the first appellant shall be related to his position as a partner and as a co-owner. Therefore, the contention of the appellants that the respondent/defendant did not get possession as per the sale deed marked as Ex.A1 and that the said document was not acted upon, cannot be countenanced. Point No.ii 21. The respondent/defendant has come forward with the cross objection challenging the legality of the decree granting relief of injunction restraining the respondent/defendant from interfering with the supposed right of the appellants/plaintiffs to run Sri Vijayalakshmi Rice and Oil Mill. There is clear evidence and admission that the rice mill business was run as a partnership business, in which the respondent/defendant had 50% share and the other 50% share belonged to the appellants/plaintiffs 1 to 3, which subsequently came to be owned by first appellant/first plaintiff alone, by virtue of the sale deed executed by second and third appellant in his favour. Clear averments have been made and clear evidence has been adduced by the respondent/defendant that the partnership was at will and the same was dissolved with effect from 01.04.1998 by serving a notice dated 26.03.1998. Clear averments have been made and clear evidence has been adduced by the respondent/defendant that the partnership was at will and the same was dissolved with effect from 01.04.1998 by serving a notice dated 26.03.1998. It has also been held supra that Ex.A1-sale deed executed by the appellants/plaintiffs in favour of the respondent/defendant was not a sham and nominal deed and that the declaration sought for by the appellants/plaintiffs based on the said contention could not be granted. On dissolution of the partnership, under section 53 of the Indian Partnership Act, 1932, every partner or his representative of a dissolved firm, in the absence of a contract between the partners to the contrary, shall have a right to restrain any other partner or his representative from carrying on a similar business in the name of the firm or from using any of the properties of the firm for his own benefit, until the affairs of the firm have been completely wound up. 22. In this case there is no proof that any contract to the contrary was entered into. An attempt has been made by the appellants/plaintiffs to show that there was either an oral contract or a written contract to the effect that, if the respondent/defendant is unwilling to run the rice mill, he should retire from the partnership business after getting a sum of Rs.75,000/- alone without claiming any share in the land. The appellants/plaintiffs have also made a novel plea that there was no partnership and hence the provisions of the Indian Partnership Act, 1932 will not be applicable. It has also been contended on behalf of the appellants/plaintiffs that the respondent/defendant shall not be entitled to any relief in accordance with the provisions of the Indian Partnership Act, 1932 in view of the bar provided under Section 69 of the Indian Partnership Act. Section 69(3)(a) clearly provides that a partners right to seek dissolution of the firm or settlement of accounts of a dissolved firm is not barred under sub sections (1) and (2) of Section 69. Therefore, the contention of the appellants/defendants that the defendant shall not be entitled to any relief under the provisions of the Indian Partnership Act, 1932 simply because the partnership firm was not a registered one, deserves to be rejected as untenable. As indicated supra, the partnership was dissolved by issuing Ex.A4-notice with effect from 01.04.1998. Therefore, the contention of the appellants/defendants that the defendant shall not be entitled to any relief under the provisions of the Indian Partnership Act, 1932 simply because the partnership firm was not a registered one, deserves to be rejected as untenable. As indicated supra, the partnership was dissolved by issuing Ex.A4-notice with effect from 01.04.1998. As per section 53 of the Indian Partnership Act, 1932, the respondent/defendant shall be entitled to restrain the appellants/plaintiffs from running the business in the name of Sri Vijayalkshmi Rice and Oil Mill before winding up is completed. In fact, the respondent/defendant shall be entitled to get an injunction against the appellants from carrying on the business of the firm in the name of the firm and the appellants shall not have any such right against the respondent/defendant. Without properly applying the provision of law and the legal principle in this regard, the learned trial judge has chosen to hold that the appellants/plaintiffs were entitled to an injunction against the respondent/defendant not to cause any disturbance to the appellants/plaintiffs possession and enjoyment of the suit property on the simple ground that the respondent/defendant admitted the possession of the properties of the firm by the first appellant and the running of the business by the first appellant/first plaintiff. The very act of the first appellant is against and in derogation of the right conferred on the respondent/defendant under section 53 of the Indian Partnership Act, 1932. Therefore, it is quite obvious that the learned trial judge committed an error in granting the relief of injunction sought for by the appellants/plaintiffs and hence the same deserves to be set aside and reversed. Point No.iii 23. For all the reasons stated above, this court comes to the conclusion that the appeal shall be dismissed confirming the dismissal of the suit so far as the relief of declaration is concerned, whereas the cross-objection shall be allowed reversing the dismissal of the suit in respect of the relief of injunction and dismissing the suit in toto. 24. In the result, A.S.No.748 of 2002 is dismissed with cost and cross-objection No.34/2003 is allowed. The decree of the trial court dismissing the suit in respect of the relief of declaration is confirmed. The decree of the trial court granting the relief of injunction is set aside and the suit is dismissed in respect of the relief of injunction also. In the result, A.S.No.748 of 2002 is dismissed with cost and cross-objection No.34/2003 is allowed. The decree of the trial court dismissing the suit in respect of the relief of declaration is confirmed. The decree of the trial court granting the relief of injunction is set aside and the suit is dismissed in respect of the relief of injunction also. The appellants shall pay the cost of the respondent/cross-objector/defendant in both the courts, besides bearing their own cost.