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2011 DIGILAW 3627 (MAD)

K. Vivekanandan v. K. Nagarajan

2011-08-10

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The defendants in O.S.No.5015 of 2005 on the file of the XIV Assistant City Civil Judge, Chennai, are the appellants. 2. The respondent/ plaintiff filed the suit for recovery of possession of the suit property and also for damages. The case of the respondent/ plaintiff was that the suit property and adjoining property originally belonged to one Kadirvel Nadar the father of the respondent/ plaintiff and also the father of the appellants/ defendants and the said Kadirvel Nadar had two wives and through his first wife Parvathy he had three sons namely Doosu Muthu, Chandrasekaran and the respondent herein. Through his second wife Rajamani he had seven sons namely Bhagavathi Singh, Napolean and the appellants herein. There was a partition in the family of Kadirvel Nadar on 25.8.1982 and in that partition the suit schedule property was allotted to the share of Kadirvel Nadar and his children through his second wife and the adjoining property was allotted to the share of the respondent/plaintiff and his two brothers who were his children through his first wife. In the partition deed the property allotted to the father Kadirvel Nadar and his children through his second wife was described as 'B' schedule property and the property allotted to the plaintiff and his two brothers were described as 'C' schedule property. After the death of Kadirvel Nadar his second wife Rajamani and her children sold the property that was allotted to their share under the partition deed dated 25.8.1982 to the respondent/ plaintiff and even after the sale the plaintiff/ respondent permitted Rajamani to reside in the suit property and she was also residing as a licensee and after her death the appellants/ defendants were also permitted to reside in the suit property as they happened to the respondent's half-brother and half-sister. While so, the respondent/ plaintiff required the suit premises and issued notice dated 7.3.2001 to the appellants to vacate and hand over possession after canceling the licence and as they did not hand over possession the suit was filed for the reliefs stated above. 3. While so, the respondent/ plaintiff required the suit premises and issued notice dated 7.3.2001 to the appellants to vacate and hand over possession after canceling the licence and as they did not hand over possession the suit was filed for the reliefs stated above. 3. The appellants filed a statement disputing the claim of the respondent/ plaintiff and further contended that the sale deed alleged to have been executed by the mother and the appellants was fraudulently obtained and they have not executed any such sale deed and their mother borrowed some amount from the respondent/ plaintiff and at the request of the respondent/ plaintiff the document was executed and according to the appellants they were under the impression that only a mortgage deed was executed and taking advantage of the illiteracy and the relationship between the parties, the respondent/ plaintiff manoeuvred to get the sale deed from the appellants and therefore the sale deed was not validly executed by the appellants and they are in possession of the property in their own right after the death of Rajamani on 18.12.1995 and they also made a counter claim to set aside the sale deed dated 14.2.1993 alleged to have been executed by them in favour of the respondent/ plaintiff. 4. The learned trial Judge partly decreed the suit holding that the sale deed dated 14.2.1993 in favour of the respondent/ plaintiff is a valid sale deed and no fraud has been practiced upon the appellants/ defendants when they executed the said document. Nevertheless, the trial Court held that under the sale deed only 100 square feet of super structure was conveyed to the respondent/ plaintiff and therefore the respondent/ plaintiff is not entitled to the entire schedule of property and he is only entitled to 100 square feet of super structure and directed the appellants to deliver only 100 square feet of super structure to the respondent/ plaintiff. 5. Aggrieved by the Judgement and Decree, the respondent/ plaintiff filed A.S.No.243 of 2005 in respect of the rejection of the remaining portion and the appellants filed A.S.No.95 of 2005 against the rejection of their counter claim. 5. Aggrieved by the Judgement and Decree, the respondent/ plaintiff filed A.S.No.243 of 2005 in respect of the rejection of the remaining portion and the appellants filed A.S.No.95 of 2005 against the rejection of their counter claim. The lower appellate Court allowed the appeal filed by the respondent/ plaintiff and dismissed the appeal filed by the appellants and held that under the sale deed Ex.A4 dated 14.2.1993 the entire suit property was conveyed to the respondent/ plaintiff and the appellants executed only a sale deed and not a mortgage deed as alleged by them. Hence, the two appeals were filed by the appellants. 6. It is submitted by the learned counsel for the appellants that under the sale deed Ex.A4 only an extent of 100 square feet of super structure was conveyed and it was also made clear in the sale deed and therefore the lower appellate Court erred in holding that the entire suit property was conveyed to the respondent/ plaintiff. It is submitted by the learned counsel for the appellants that admittedly the landed property belongs to Apparao and the super structure was owned by Kadirvel Nadar and Ex.A4 while describing in the schedule of property it was stated that the super structure excluding the ground was conveyed and it has been made clear in Form-I-A that 100 square feet of super structure was sold and therefore having regard to Form-I-A what was conveyed under Ex.A4 was only 100 square feet of super structure and not the entire super structure constructed on the ground and that was properly appreciated by the trial Court and decree was passed only to an extent of 100 square feet. The learned counsel for the appellants also brought to my notice, the provision of Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules 1968 and submitted that as per 3 (1) and (1-A) of Tamil Nadu Stamp (Prevention of Undervaluation of Instruments) Rules 1968, it has been made clear that the seller is bound to mention the area of the building sold under the document in Form-I-A and as mandated under Rule 3(1-A), in Ex.A4, 100 square feet of super structure was mentioned in Form-1-A and therefore under Ex.A4 only 100 square feet of super structure was conveyed and the respondent/ plaintiff cannot claim more than 100 square feet. He further submitted that having regard to the fact that the ground belongs to another person and only super structure was conveyed under Ex.A4, the extent mentioned in Form-I-A has to be taken into consideration to ascertain the property sold and therefore the respondent/ plaintiff cannot claim more than 100 square feet of super structure and the appellants are bound to deliver 100 square feet of super structure as per the decree passed by the trial Court. 7. The learned counsel for the appellants further submitted that both the Courts erred in holding that the appellants and their mother executed the sale deed in favour of the respondent/ plaintiff under Ex.A4 and ought to have held their fraud was practiced upon them and without their knowledge the respondent/ plaintiff obtained a sale deed though the appellants and their mother were under the impression that they executed only mortgage deed. He therefore submitted that the Courts below ought to have held that no title passed under Ex.A4 and it was only a mortgage. 8. Having regard to the submissions made by the learned counsel for the appellants, the following substantial questions of law are arising for consideration in these two Second Appeals: (1) What was the extent of property that was sold under Ex.A4 to the respondent/ plaintiff ? (2) Whether Ex.A4 is a valid sale deed ? and (3) Whether the respondent/ plaintiff practiced fraud upon the appellants and their mother and obtained the sale deed informing that it was only a mortgage deed ? 9. To appreciate the contention of the appellants we will have to see the partition deed Ex.A3 executed between Kadirvel Nadar and his children through his first wife on the one part and the children of Kadirvel Nadar through his second wife on the other part. As per Ex.A3, 'B' schedule property namely the super structure constructed over an area of 517 square feet was allotted to Kadirvel Nadar and his sons through his second wife and the children through his first wife namely the respondent and two brothers were allotted to 'C' schedule property namely building constructed over an area of 219 square feet. A reading of the 'B' schedule property in Ex.A3 would make it clear that there was one building constructed on a landed property of an extent of 517 square feet. A reading of the 'B' schedule property in Ex.A3 would make it clear that there was one building constructed on a landed property of an extent of 517 square feet. Under Ex.A4 the appellants, their mother and brothers sold the property they got under the partition deed Ex.A3 to the respondent/ plaintiff. It is stated in Ex.A4 that they have conveyed the property they got under the partition deed dated 25.8.1982 namely Document No.1254 of 1982 to the respondent/ plaintiff. Further, while describing the schedule of property it was clearly stated that the super structure excluding the ground measuring 18 feet east west on both sides and 19.6' feet north- south on both sides of an total extent of 351 square feet excluding the ground and the super structure constructed thereon. Therefore, having regard to the recitals in the sale deed and the schedule of property described in the sale deed it was made clear that what they got under the partition deed Ex.A3 was conveyed to the respondent/ plaintiff under Ex.A4. No doubt, while describing in Annexure-1-A it was stated that super structure was an extent of 100 square feet. According to me, the extent mentioned in Annexure-1-A will not override the recitals in the sale deed and having regard to the recitals in the sale deed as stated supra, what was conveyed under Ex.A4 was the super structure built over an area of 351 square feet and not 100 square feet as stated in Annexure-1-A. Further Annexure-1-A has to be filled up only for ascertaining the market value of the property for collecting the revenue and therefore the description of property of Annexure-1-A cannot be a deciding factor to find out the total area conveyed when a different indication is made out in the sale deed. As stated supra, as per the sale deed Ex.A4 the property got under the partition namely 'B' schedule property was conveyed to the respondent/ plaintiff and hence the appellants cannot take advantage of the recitals in Annexure-1-A attached to the sale deed to claim 100 square feet of super structure alone was sold. Further, it is not the case of the appellants that the property conveyed to the respondent/ plaintiff there are other buildings having different extent and one building is having 100 square feet and that was conveyed to the respondent/ plaintiff. As it is seen from Exs. Further, it is not the case of the appellants that the property conveyed to the respondent/ plaintiff there are other buildings having different extent and one building is having 100 square feet and that was conveyed to the respondent/ plaintiff. As it is seen from Exs. A3 and A4 that there is only one super structure constructed on the 'B' schedule property mentioned in Ex.A3 and that was conveyed under Ex.A4. Therefore, the lower appellate Court is right in holding that the suit schedule property was conveyed under Ex.A4 and the trial Court was not correct in holding that only 100 square feet was conveyed. Therefore, the substantial question of law No.1 is answered against the appellants. 10. Though it was contended by the learned counsel for the appellants that by practicing fraud on the appellants and their mother the sale deed was obtained and they intended to execute only a mortgage deed and they never intended to execute a sale deed, both the Courts have rightly held that under Ex.A4 a valid sale deed was executed in favour of the respondent/plaintiff and negatived the contention of the appellants and according to me, both the Courts below on the basis of the oral and documentary evidence have rightly come to the conclusion and the concurrent finding of fact does not call for any interference. Hence, the substantial questions of law Nos.2 and 3 are answered against the appellants. In the result, both the Second Appeals are dismissed and the Judgement and Decree of the lower appellate Court is confirmed. 11. The learned counsel for the appellants seek time for vacating the premises and the appellants are granted time till 31.1.2012 to vacate and hand over possession to the respondent/ plaintiff on condition of filing an affidavit of undertaking to the same effect within a period of two weeks from the date of receipt of a copy of this Judgement, failing which the respondent/ plaintiff is entitled to execute the decree. Further, the appellants shall continue to pay damages to the respondent/ plaintiff as awarded by the lower appellate Court and in case if they failed to pay the damages, the respondent/ plaintiff is entitled to execute the decree. 12. With the above directions, both the Second Appeals are dismissed. No costs. Consequently, the connected Miscellaneous Petitions are also closed.