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2012 DIGILAW 718 (MAD)

Singaravelu v. Udayakumar

2012-02-09

T.RAJA

body2012
Judgment :- 1. The present Second Appeal was brought by the Plaintiff in whose favour the judgment and decree granted by the Trial Court having been reversed by the First Appellate Court complaining that the First Appellate Court ought not to have interdicted the conclusion reached by the Trial Court on acceptable reasons, based on sufficient evidence produced by the Plaintiff before the Trial Court. 2. This Court at the time of entertaining the Second Appeal framed two substantial questions of law for consideration and they are as follows: “1. When on the admitted facts of the case, the Appellant (Petitioner) is a Tenant and was in possession on the date of Suit, still is the learned Subordinate Judge right in dismissing the Suit? 2.) Is the learned Subordinate Judge right in not moulding the relief especially when the Appellant proved his tenancy and possession?” 3. (i) The Plaintiff/Appellant herein has originally filed a Suit for injunction against his own wife-1st Defendant and the 2nd Defendant-the brother of the 1st Defendant. The Plaintiff/Appellant herein has purchased the superstructure with leasehold right from one Sundarambal, another lessee of the same suit property. The 3rdDefendant is Arulmighu Agatheeswarar Swamy Temple, represented by its Executive Officer, Vellipalayam, Nagapattinam Town. ii) When the Plaintiff/Appellant herein has purchased the superstructure along with the leasehold right of the superstructure from the erstwhile lessee, by name, Sundarambal, it appears that there has been difference of opinion between the Plaintiff and his wife/the 1st Defendant. As a result, the Plaintiff’s/Appellant’s wife had filed a Suit for maintenance after leaving the matrimonial home in O.S. No.252/1998. During the pendency of that Suit, the Plaintiff/Appellant herein in an effort to put a quietus to the matrimonial dispute arisen between the Plaintiff/Appellant herein and the 1st Defendant, appeared to have entered into a compromise and as a result, a Release Deed Ex.B7 dated 30.8.2000 was executed. The Sale Deed dated 28.8.2000 is marked as Ex.B8 and the same is said to have executed between the Plaintiff/Appellant herein and 1st Defendant. Subsequently, when the 1st and 2nd Defendant have jointly let out the suit premises to other tenants, a Suit was brought by the Plaintiff/Appellant herein praying a decree for bare injunction against the 1st & 2nd Defendants restraining them front interfering with the suit property. Yet another prayer was also made restraining them from alienating or changing the lease hold right. Yet another prayer was also made restraining them from alienating or changing the lease hold right. iii) The Trial Court considering the case of both sides and the evidence produced by the Plaintiff/Appellant herein that the suit property has been in possession and enjoyment of the Plaintiff, decreed the Suit as prayed for by disbelieving the case presented before it by the Defendants. Another reason for which the Trial Court decreed the Suit by disbelieving the case of the Defendants was when the 1st Defendant relied upon Ex.B.7-Release Deed dated 30.8.2000 executed by the Plaintiff in favour of her wife D1, finding that it was unstamped and unregistered, hence it cannot be looked into in favour of D1, accepting the case of the Plaintiff/Appellant herein that the date of execution of Release Deed-Ex.B7, releasing the leasehold right in favour of the 1st Defendant being 30.8.2000, the Plaintiff’s signature was found only on 2.9.2000, but the attestors-DW2 & DW3 have signed the Release Deed much prior to the signature put by the Plaintiff, namely on 30.8.2000, the Trial Court disbelieving the execution of Ex.B7 not only on the ground that the attestors of Ex.B7 have failed to put their signature on the date the Plaintiff said to have signed, namely, on 2.9.2000 but also on the ground that the Release Deed was unstamped and unregistered, decreed the suit for injunction against the Defendants from interfering with the possession and enjoyment of the suit property. iv) The learned Counsel appearing for the Plaintiff/Appellant finding fault with the impugned judgment contended that when the entire case was based on the document Ex.B7-Release Deed dated 30.8.2000 said to have been executed by the Plaintiff/husband in the name of his wife-D1, releasing the lease hold right in the suit property in lieu of the charge of maintenance, the Trial Court finding that the Release Deed-Ex.B7 was one of unregistered and unstamped document came to the conclusion that the same is unreliable for the reason that no right can flow from any unstamped and unregistered document. Such a legal finding concluded rightly by the Trial Court should not have been reversed by the Appellate Court. Such a legal finding concluded rightly by the Trial Court should not have been reversed by the Appellate Court. v) In support of her submission the learned Counsel for the Plaintiff/Appellant herein relied upon the judgment of the Division Bench of the Court in Lakshmipathy, A.C. v. A.M. Chakrapani Reddiar, 2003 (1) CTC 112 (DB): 2001 (1) LW 257 , to state that by the simple device of calling it “Collateral purpose”, a party cannot use the unregistered document to bring about indirectly the effect. Since the law is well settled that as any unstamped and unregistered document cannot be looked into for any purpose, the impugned judgment and decree passed by the First Appellate Court accepting the unregistered and unstamped document for dismissing the suit is liable to be set aside. vi) The learned Counsel for the Plaintiff/Appellant further submitted that the impugned judgment shows that the 2nd Defendant who is the brother-in-law of the Plaintiff (brother of the 1st Defendant) in the name of taking care of the 1st Defendant who is no more now, is now attempting to make use of the suit property after getting the decree in favour of the 1st Defendant for his own benefits. Therefore, the purpose for which the judgment and decree was granted by the learned first appellate Court should not be defeated, hence the impugned judgment is liable to be reversed. vii) Further, the learned Counsel for the Appellant again submitted that from the date of the ex parte decree passed by the Civil Court in O.S.No.252/1998 dated 14.2.2001, the Plaintiff/Appellant herein has been paying the monthly maintenance to his wife and even after the death of the 1st Defendant, the Plaintiff/Appellant herein has been taking care of his only son who is now staying and living with the 2nd Defendant. Therefore, the question of not taking care of his son would not arise in this case because the son of the Plaintiff and the 1st Defendant was not even arrayed a one of the necessary parties, even after the death of the 1st Defendant. Therefore, the question of not taking care of his son would not arise in this case because the son of the Plaintiff and the 1st Defendant was not even arrayed a one of the necessary parties, even after the death of the 1st Defendant. On this score, the learned Counsel further contended that in any event since the Plaintiff’s wife-1st Defendant had demised during the pendency of the Suit before the Trial Court, if the prayer sought for by the Plaintiff/Appellant herein for bare injunction against the 1st & 2nd Defendants restraining them from interfering with the suit pro0perty and from alienating or changing the leasehold right is not granted, the real beneficiaries, namely, the Plaintiff and his son would be deprived of the leasehold right purchased by the Plaintiff from the erstwhile lessee-Sundarambal. 4. (i) Opposing the said prayer, in support of the impugned judgment and decree passed by the FIRST APPELLATE COURT, the learned Counsel appearing for the 1strespondent herein submitted that the Plaintiff/Appellant herein after matrimonial dispute, has driven out his wife the 1st Defendant. Therefore, the Plaintiff’s/Appellant’s wife has come to her parents’ house and after several mediations, no fruitful response came form the Plaintiff/Appellant, hence, the 1st Defendant was constrained to file a Suit for maintenance in O.S.No.252/1998. Though the Suit was contended between them, during the pendency of the Suit for maintenance, the Plaintiff/Appellant on his own wanted to settle the matter by calling upon the elders of the family and thereupon, when a compromise was reached to give up the leasehold right of the suit property in favour of the Plaintiff’s wife-1st Defendant, the Plaintiff also in the presence of the elders of both the families have executed a Release Deed-Ex.B7 releasing the right of superstructure and also the said land in an effort to discharge the charge on the maintenance. On this basis, when Ex.B7-Release Deed dated 30.8.2000 was prepared, the attestors-DWs2 & 3 who have attested the documents, also finally asked the Plaintiff/Appellant herein to finally agree for transfer of legal hold rights in the suit properly through the execution of the Release Deed-Ex.B.7 dated 30.8.2000. On accepting the advise tendered by the common elders, the Plaintiff/Appellant herein had once again taken two more days to decide as to whether he should take her back home or to execute the Release Deed releasing the leasehold rights in the suit property. On accepting the advise tendered by the common elders, the Plaintiff/Appellant herein had once again taken two more days to decide as to whether he should take her back home or to execute the Release Deed releasing the leasehold rights in the suit property. Finally, after two days the Plaintiff/Appellant declining to take back the 1st Defendant, accepted to execute the Release Deed-Ex.B7 dated 30.8.2000 discharging all the charges towards the payment of maintenance. Accordingly, on 2.9.2000, when the Plaintiff accepting the Release Deed had signed the document, the other attesting witnesses DW2 & DW3 have seen him signing the document-Ex.B.7. Therefore, it was not open to the Plaintiff/Appellant to make out a case for the simple reason that Ex.B7-Release Deed dated 30.8.2000 having been already signed by the attesting witnesses on 30.8.2000, the signature of the Plaintiff was appended with the date 2.9.2000, should not have been a ground to disbelieve the execution of the Release Deed. (ii) In support of his submission the learned Counsel for the 1st Respondent has also taken the Court to the deposition of DWs.2 & 3 where the evidence given by DWs.2 & 3 have consistently spoken about the execution of Ex.B7 by the Plaintiff in favour of the 1st Defendant. However, on preparation of Ex.B7, the Plaintiff was not able to decide as to whether he must take his wife with him or to settle the matter by executing the Release Deed. Therefore, when two days were given to take a final decision after the expiry of two days, as Plaintiff came forward to sign the same and even on 2.9.2000 when witnesses DW2 & DW3 who were present on 2.9.2000 clearly deposed that they have seen the Plaintiff signing the document-Ex.B.7 on 2.9.2000, shows the substantial compliance of all the necessary ingredients for execution of Ex.B7 in favour of D1 & D2. No doubt, the attesting witnesses DW2 & DW3 who signed the Release Deed on 30.8.2000, were again present on 2.9.2000 when Plaintiff signed the Release Deed but they avoided to append their signatures once again on 2.9.2000. This has been rightly considered by the First Appellate Court, hence, this Court cannot interfere with the finding given by the First Appellate Court. 5. This has been rightly considered by the First Appellate Court, hence, this Court cannot interfere with the finding given by the First Appellate Court. 5. (i) In respect of the unstamped and unregistered Release Deed Ex.B7 dated 30.8.2000 when the learned Counsel appearing for the Plaintiff/Appellant argued before this Court not to rely upon the unregistered Release Deed-Ex.B7 on the ground that it cannot be looked into for any purpose as it is neither stamped nor registered, a Division bench judgment of this Court relied upon by both sides in A.C. Lakhshmipathy v. A.M. Chakrapani Reddiar and 5 others, 2001 (1) CTC 112 (DB) : 2001 (1) LW 257 , needs to be looked into to find out whether the document in question being unstamped and unregistered can be looked into for any6 collateral purpose. No doubt any unregistered and unstamped document cannot be looked into for any purpose. But the ratio laid down by the Division Bench of this Court holds that if the family arrangement is stamped, but not registered, it can be looked into for collateral purpose. But, in the present case, as rightly argued by the learned Counsel appearing for the respondents when the Release Deed-Ex.B7 was presented before the Trial Court with insufficient stamp of Rs.10/- as against Rs.25/-, on the request made by the Defendant to pay the sufficient stamp, the Trial Court having seen that the Defendants/Respondents herein have come forward to pay the deficit Stamp duty along with the penalty which is 10 times more than the deficit Stamp duty, has rightly accepted Ex.B7-Release Deed for the reason that the Defendant/Respondent has paid the penalty which is 10 times more than the required amount. Hence, the ratio laid down by the Division Bench of this Court that the family arrangement if stamped but not registered, can be looked for collateral purposes goes without saying that the Release Deed Ex.B7, dated 30.8.2000 having sufficiently stamped with the permission of the Trial Court can be accepted for collateral purpose to refuse the prayer made by the Plaintiff/Appellant herein. On this basis, the First Appellate Court has rightly considered the case of both the parties by accepting the case of the Defendant the Ex.B7 dated 30.8.2000 is a Release Deed by which the Plaintiff in lieu of charge created towards payment of maintenance amount to his wife/D1 has accepted the case of the Defendant/Respondent. On this basis, the First Appellate Court has rightly considered the case of both the parties by accepting the case of the Defendant the Ex.B7 dated 30.8.2000 is a Release Deed by which the Plaintiff in lieu of charge created towards payment of maintenance amount to his wife/D1 has accepted the case of the Defendant/Respondent. In fact, the Plaintiff and D1 being husband and wife, when the wife/Appellant in the year 1998 filed O.S.No.252/1998 a suit for maintenance, during the pendency of the said suit for maintenance, both the plaintiff and the D1 have reached a settlement by executing the Release Deed-Ex.B7 dated 30.8.2000 agreeing to transfer the leasehold right in the suit property in favour of the wife/Defendant/Respondent herein. After the execution of the Release Deed when the ex parte-decree dated 14.2.2001 was passed in O.S.No.252/98 for a sum of Rs.33,000/-at the rate of Rs.1,000/-per month, in view of the Release Deed dated 30.8.2000 the Defendant/wife had not even taken any steps to execute the decree for maintenance. Had the Plaintiff not executed the Release Deed-Ex.B7, most probably his wife/D1 could have taken all steps to execute even the maintenance decree. The facts show that the Defendant/Respondent has not taken any steps to execute the ex parte decree, and it goes to show that both parties have stood by the Release Deed dated 30.8.2000. ii) In this view of the matter the further argument advanced by the learned Counsel for the Appellant that the Second Defendant who is brother-in-law of the Plaintiff and the brother of D1 in the name of taking care of the son of the Plaintiff and the D1, is now attempting to make use of the suit property after getting the decree in favour of D1 for his own benefit even without employing the son of D1 is also bereft of any merit. iii) It is an admitted fact that both the Plaintiff and the D1 were husband and wife and have given birth to one son. But from the date of separation, D1 was living with his brother D2. Therefore, the fact that the son of the Plaintiff and D1 was not brought on record is not going to militate against D1 since the Release Deed-Ex.B7 has been executed in the name of D1. But from the date of separation, D1 was living with his brother D2. Therefore, the fact that the son of the Plaintiff and D1 was not brought on record is not going to militate against D1 since the Release Deed-Ex.B7 has been executed in the name of D1. Therefore, the son of Plaintiff and D1 is legally entitled to enjoy the lease hold right of the suit property on the basis of Release Deed-Ex.B7. Accordingly, by answering the substantial questions of law against the Appellant, this Court finds no error or flaw in the impugned judgment. 6. In respect of one another argument advanced by the learned Counsel appearing for the Plaintiff/Appellant that at no point of time the Plaintiff/Appellant ha admitted the execution of Release Deed-Ex.B7, this Court by relying upon admission of the Plaintiff/Appellant herein before the Trial Court that only on the execution of Ex.B.7, the 2nd Defendant inducted the other tenants, this Court has no hesitation to accept the finding given by the learned First Appellate Court on the execution of the Release Deed-Ex.B7. Further, it is well settled law that admission is a best piece of evidence, while so, when the Plaintiff himself has admitted the execution of Release Deed the controversy comes to an end. Therefore, looking at the case of the Plaintiff/Appellant from any angle, this Court is of the considered opinion that the Plaintiff/Appellant having executed Ex.B7-Release Deed for the payment of maintenance in favour of the 1st Defendant/Plaintiff’s wife, the Plaintiff/Appellant cannot try to wriggle out from the Release Deed-Ex.B7. In fact, as rightly submitted by the learned Counsel appearing for the Respondent No.1, even after the ex parte decree passed by the Trial Court in O.S.No.252/98 directing the Plaintiff to pay a sum of Rs.33,000/- at the rate of Rs.1,000/- per month as monthly maintenance to his wife-1st Defendant, the ex parte decree having been till date not executed by the Plaintiff/Appellant against the Defendants, who was an employee working in the Postal Department goes to show that the Plaintiff/Appellant herein has rightly executed Ex.B7-Release Deed, by this time, the Respondent herein on the basis of the decree passed by the Civil Court in O.S.No.252/98 could have taken all steps to recover against the alary of the Plaintiff. Admittedly not taking any steps in this direction shows that both parties have accepted and acted upon the Release Deed. Admittedly not taking any steps in this direction shows that both parties have accepted and acted upon the Release Deed. Therefore, the conclusion reached by the learned First Appellate Court on the basis of the acceptable reason does not call for any interference by this Court and accordingly, the Second Appeal fails. 7. Consequently, this Second Appeal is dismissed. The judgment and decree passé by the Lower Appellate Court is confirmed. No costs.