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2011 DIGILAW 3828 (MAD)

S. G. Raju v. Rajammal

2011-08-26

R.S.RAMANATHAN

body2011
JUDGMENT :- 1. The unsuccessful plaintiff is the appellant. 2. The plaintiff filed the suit for declaration and injunction or in the alternative recovery of possession. The case of the plaintiff/appellant was that he purchased the suit property from the second defendant, who is none other than his mother-in-law, for a valuable consideration under a registered sale deed dated 2.6.1974. The first defendant is the wife of the plaintiff and the third defendant is the daughter of the second defendant. The property was purchased by the plaintiff from out of his income from military service and as he was in military service, he allowed his mother-in-law and sister-in-law to stay alongwith his wife in the suit property. Since the relationship between the plaintiff and his wife got strained, the defendants refused to vacate the property and also disputed the title of the plaintiff and therefore, the suit was filed for the above relief. 3. The defendants filed written statement stating that though the property was purchased in the name of the second defendant, it belonged to her husband and after purchasing the vacant site, the husband of the second defendant constructed a house and he died in the year 1972 and at that time, his brother and his son claimed some right over the property and therefore, for the purpose of safeguarding the property, a nominal sale deed was created in favour of the plaintiff and the sale deed dated 2.6.1974 was only a sham and nominal document and no title passed under that document and no consideration was also passed as stated in that document and even after the execution of the said sale deed, the defendants are in possession of the property as absolute owners and they are paying tax therefor. The plaintiff is having illicit intimacy with another woman and he filed application for divorce from his wife, the first defendant in O.P.No.130 of 1980 and that was dismissed and the appeal filed against that judgment and decree was also dismissed and having realised that he cannot get divorce from his wife, he has filed the suit claiming that he is the owner of the suit property. 4. Both the courts below held that the sale deed Ex.A2 was a sham and nominal document and no title passed under that document and therefore, the plaintiff is not entitled to the relief prayed for. 5. 4. Both the courts below held that the sale deed Ex.A2 was a sham and nominal document and no title passed under that document and therefore, the plaintiff is not entitled to the relief prayed for. 5. The following substantial questions of law were framed at the time of admission of the second appeal:- "1. Whether the courts below are right in holding that the document under Ex.A2 is sham and nominal document and should it not have held that the evidence is insufficient for coming to a conclusion that the document is sham? 2. Whether the courts below are right in ignoring the evidence of PW2 and when the sale deed recites the consideration having been passed and paid before the Sub-Registrar, whether the learned Judge ought not to have held against the respondent herein?" 6. Mr.V.Raghavachari, learned counsel for the appellant/plaintiff submitted that both the courts below have failed to appreciate the law relating to sham and nominal document and without appreciating the fact that the property was in the name of the second defendant and she dealt with the property as her own property as evidenced by Exs.A1 and A5 and therefore, the reason for creating a nominal sale deed in favour of the plaintiff should not have been accepted. Further even assuming that her husband's brother and his son may claim right over the property, as the property stood in the name of the second defendant, there was no necessity for her to create a nominal sale deed in favour of the appellant and passing of consideration was proved by the appellant by examining PW2 and without appreciating the same, both the courts below held that the document was a sham and nominal one. 7. On the other hand, the learned counsel for the respondents submitted that both the courts below have rightly appreciated the oral and documentary evidence and held that the document Ex.A2 was a sham and nominal document and no title had passed in favour of the appellant and hence, the appellant cannot claim title over the property. 8. To appreciate the contention of the rival parties, we will have to see the nature of the document, Ex.A2, whether it is a sham and nominal document as contended by the respondents or it is a real and genuine sale deed in favour of the appellant. 9. 8. To appreciate the contention of the rival parties, we will have to see the nature of the document, Ex.A2, whether it is a sham and nominal document as contended by the respondents or it is a real and genuine sale deed in favour of the appellant. 9. Admittedly, the suit property was originally purchased in the name of the second defendant as evidenced by Ex.A1. She also dealt with the property as her own property and mortgaged the same under Ex.A5. Therefore, these documents would prove that the suit property was the property belonging to the second defendant and it was not purchased by her husband in her name. Ex.A5 would prove that the property was dealt with by the second defendant as her own property and she mortgaged the property for her own purpose. Further, the original document viz., the sale deed was in the custody of the plaintiff and he produced it before the court and it was marked on his side as Ex.A2. If really the document Ex.A2 was a sham and nominal one, the original of the same could not have been in the hands of the appellant and it must have been with the respondents. Further, the evidence of PW2 would also make it clear that before the Sub-Registrar, a sum of Rs.3000/=, being part of the sale consideration, was paid. It is seen from the recitals of Ex.A2 that Rs.5000/= was paid earlier to the execution of the sale deed and Rs.3000/= was paid at the time of execution of the sale deed which was corroborated by the evidence of PW2. Therefore, the payment of consideration and the possession of the original document of title would make it clear that the document, Ex.A2 cannot be a sham and nominal document as contended by the respondents/defendants. 10. Further, the reason for creating a document in favour of the appellant as alleged by the defendants cannot also be acceptable. If the property stood in the name of her husband and after his death, fearing any trouble from her in-laws, she might have executed a document to safeguard the property from the hands of her in-laws. 10. Further, the reason for creating a document in favour of the appellant as alleged by the defendants cannot also be acceptable. If the property stood in the name of her husband and after his death, fearing any trouble from her in-laws, she might have executed a document to safeguard the property from the hands of her in-laws. But, in this case, the property stood in the name of the second defendant and hence it is her separate property and her husband's brother and his son cannot claim any share in the property and therefore, the reason for creating a sale deed in favour of the appellant as alleged by the defendants cannot be accepted. Further, in a case where one party pleaded that the document was not intended to be acted upon and it was a sham and nominal document, the burden is on him to prove the circumstances under which a document was executed to prove that it is a sham and nominal one or would state the reason for possession of the original document of title and the payment of taxes therefor by the purchaser. 11. In this case, except the fact that the defendants are in possession of the property, the other two important ingredients for a sham and nominal document are absent. Admittedly, the original document of title, Ex.A2 was with the appellant/plaintiff and it was produced by him and no explanation was given by the defendants for the possession of the original document of title with the appellant. Though the defendants claimed to have paid kist, they have not produced any kist receipts to prove that they are enjoying the property as their own property. On the other hand, the appellant has produced the kist receipts Exs.A3 and A4. Further, as stated supra, in a sham and nominal document, there may not be any recital regarding payment of consideration at the time of registration. In this case, the consideration was Rs.8000/= and it was stated that Rs.5000/= was paid earlier and at the time of registration, Rs.3000/= was paid and that was also corroborated by the evidence of PW2. 12. Unfortunately, the lower appellate court, without appreciating the evidence of PW2, which is inconsonance with the recital in Ex.A2, preferred to accept the oral testimony of defendants 1 and 2. 12. Unfortunately, the lower appellate court, without appreciating the evidence of PW2, which is inconsonance with the recital in Ex.A2, preferred to accept the oral testimony of defendants 1 and 2. Therefore, both the courts below have erroneously held that the document Ex.A2 is a sham and nominal document. 13. According to me, having regard to the recitals in the sale deed and the possession of the original document of title with the appellant, it is proved that the property is the absolute property of the appellant and as such, the defendants are in permissive occupation of the same. The appellant sought alternatively for recovery of possession and hence, he is entitled to recovery of possession. Therefore, the substantial questions of law are answered in favour of the appellant and held that Ex.A2 is not a sham and nominal document and no evidence has been let in by the defendants/respondents to prove that it was a sham and nominal document and the courts below have erred in ignoring the evidence of PW2 and also erred in holding that no consideration was passed under that document. In the result, the judgment and decree of both the courts below are set aside. The second appeal is allowed. The suit is decreed for recovery of possession. No costs. The connected miscellaneous petition is closed.