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2014 DIGILAW 463 (MAD)

Loganayaki v. Rajeswari Ammal

2014-02-24

PUSHPA SATHYANARAYANA

body2014
JUDGMENT 1. Aggrieved by the concurrent finding of the Courts below, the defendant in a suit for declaration and consequential permanent injunction, has preferred this Second Appeal. 2. The first plaintiff is the wife and the second and third plaintiffs are the sons of one Rajagopal. The suit property was purchased by the said Rajagopal by virtue of a sale deed dated 15.5.1981 executed by one P.S. Damodharan and marked as Ex.A.1. During his lifetime and after his death, the plaintiffs have been in possession and enjoyment of the suit property. The property purchased under Ex.A.1 is the adjacent property in which the plaintiffs and the said Rajagopal were living prior to the purchase. As the defendant, who has no manner of right whatsoever, attempted to trespass over the suit property when the plaintiffs started construction in the suit property, the suit was filed. 3. The suit was resisted by the defendant contending that the suit property originally belonged to one Jaganathan, who got the same by virtue of a sale deed dated 09.9.1934 marked as Ex.A.8. From the date of purchase, the said Jaganathan was in possession and enjoyment of the same. The defendant claims to be the sister’s daughter of the said Jaganathan and claims to be in possession of the property. Jaganathan died issueless in the year 1951 and prior to his death, he had settled the property orally in favour of the defendant. Therefore, it was contended that the plaintiff had no right or title in the suit property and prayed for dismissal of the suit. 4. Before the trial Court, the first plaintiff examined herself as P.W.1 besides examining one Parasuraman as P.W.2 and one Chandrasekar as P.W.3 and marked Exs. A.1 to A.9. On the side of the defendant, the defendant examined herself as D.W.1 besides examining four more witnesses as D.Ws. 2 to 5, marked Exs. B.1 to B.21. 5. The trial Court / learned Additional District Munsif, Vellore, after hearing the learned counsel for the parties at length and upon going through the documents and evidence, decreed the suit O.S. No. 450 of 1995 by judgment dated 29.10.2004. Aggrieved, the defendant had preferred A.S. No. 7 of 2005 on the file of the Additional Subordinate Judge, Vellore. 5. The trial Court / learned Additional District Munsif, Vellore, after hearing the learned counsel for the parties at length and upon going through the documents and evidence, decreed the suit O.S. No. 450 of 1995 by judgment dated 29.10.2004. Aggrieved, the defendant had preferred A.S. No. 7 of 2005 on the file of the Additional Subordinate Judge, Vellore. The First Appellate Court, on appreciation of facts and law, by judgment dated 03.02.2006 confirmed the judgment of the trial Court and dismissed the appeal in A.S. No. 7 of 2005. Challenging the concurrent finding of the Courts below, the above appeal has been filed by the defendant. 6. At the time of admission of this Second Appeal, the following substantial question of law was formulated for consideration:- Whether the Courts below erred in law in holding that the plaintiffs are entitled to the suit property on the basis of Ex.A.1 sale deed as if the same was executed by Bakkiyam, the wife of the original owner Jegannathan through her Power of Attorney Agent without considering the fact that Ex.A.1 sale deed was executed by the said Power of Attorney independently along with his brothers in their own rights and not as Power of Attorney Agent of said Bakkiyam, wife of the original owner? 7. Heard Mr. P. Mani, learned counsel appearing for the appellant and Mr. R. Subramanian, learned counsel for the respondents perused the records. 8. The defendant / appellant assailed the sale deed dated 15.5.1981. According to the appellant, the vendor of the plaintiffs had no right or title in the suit property. Therefore, the sale deed is not valid as the plaintiffs have purchased the same from the persons who have no saleable right on the date of execution of the sale. It was further contended by the defendant / appellant that the sale was executed by a Power of Attorney and the Deed of Power of Attorney is marked as Ex.A.9 dated 05.3.1975. The said Power of Attorney is executed by Bakkiyam, who is the wife of the original owner Jaganathan and Joyel, Rajarathinam and Kesavalu are all the sons of Subramani, who was the brother of original owner Jaganathan, in favour of one Damodaran and the said Damodaran also is the son of Subramani. The said Power of Attorney is executed by Bakkiyam, who is the wife of the original owner Jaganathan and Joyel, Rajarathinam and Kesavalu are all the sons of Subramani, who was the brother of original owner Jaganathan, in favour of one Damodaran and the said Damodaran also is the son of Subramani. The main contention of the appellant was that excepting Bakkiyam, the other executants of the Power of Attorney had no right or connection to the suit property or the original owner and, therefore, the Power of Attorney executed by them is not valid. 9. On the other hand, learned counsel for the respondents contended that the executants of the Power of Attorney were the close relatives of Jaganathan. Bakkiyam, being the wife and the other executants of the Power of Attorney are the sons of one Subramani, who was the brother of the said Jaganathan. Besides, Jaganathan and Bakkiyam were issueless. Therefore, the execution of the Power of Attorney is correct based on which the sale deed Ex.A.1 executed in favour of the said Rajagopal is valid. The original title deed under Ex.A.8 of the year 1934 was produced by the plaintiffs in support of their contention that Ex.A.1 is the continuation of the said document whereas the defendant / appellant who claimed to be the legal heir of the said Jaganathan filed only the certified copy of Ex.B.1 and there was no reason coming forth as to why the original sale deed of the year 1934 could not be produced by her if the said Jaganathan had orally settled the property on her. From the above facts, it is clear that the original owner of the property is Jaganathan and his wife was Bakkiyam and they were issueless and the relationship of the vendors of Ex.A.1 is also not disputed. 10. The only defence is that the executants of Power of Attorney were not connected with the said Jaganathan. But this contention of the defendant cannot be accepted because during cross-examination as D.W.1, she had categorically admitted in her evidence to the effect that they are all related to Jaganathan. The relevant passage from the deposition of D.W.1 is extracted below:- (“TAMIL”) 11. From the above admission of D.W.1, it is clear that the said Damodaran, Joyel, Rajarathinam and Kesavalu were the sons of Subramani and Jaganathan was their paternal uncle. The relevant passage from the deposition of D.W.1 is extracted below:- (“TAMIL”) 11. From the above admission of D.W.1, it is clear that the said Damodaran, Joyel, Rajarathinam and Kesavalu were the sons of Subramani and Jaganathan was their paternal uncle. The defendant is the daughter of one Dhanabhagyam, who is the sister of Jaganathan. Therefore, it can be inferred that Ex.A.9 Power of Attorney was executed by Bakkiyam, Joyel, Rajarathinam and Kesavalu in favour of Damodaran. Though after the death of the said Jaganathan, his wife Bakkiyam alone will become the heir of the deceased, by way of abundant caution, the brother’s children were also added in the Power of Attorney. 12. Now the contention of the learned counsel for the appellant / defendant was that even presuming Ex.A.9 Power of Attorney is valid, Ex.A.1 sale deed has been executed by the power agent Damodaran on his behalf and on behalf of Joyel and Rajarathinam only. Therefore, it was contended by the learned counsel for the appellant that the wife of Jaganathan and the other two executants of the Power of Attorney not having joined in the sale deed, the sale deed executed is not valid. 13. In reply, learned counsel for the plaintiffs / respondents contended that since Bakkiyam was not alive on the date of sale, automatically, the vendors of the plaintiffs become the legal heirs and hence, the sale executed by them is valid. Even presuming for a moment that the names of Bakkiyam and Kesavalu who had executed the Power of Attorney, are not mentioned in the sale deed is correct, the defendant cannot challenge the same having no right whatsoever, in the property. The only persons who can challenge the sale, if aggrieved, are Bakkiyam or Kesavalu. It is also stated by the learned counsel for the respondents that the said Bakkiyam and Kesavalu are not alive. 14. From the records, it can be seen that the said Jaganathan died even in the year 1951 on which date, Bakkiyam, though being the wife, could not be the heir because, the Hindu Succession Act, 1956 had not come into force by then. Therefore, the only other legal heirs as left were his brothers’ children. D.W.1 also had stated that the said Bakkiyam died 40 years back. The Power of Attorney is dated 1975 and the said Bakkiyam had executed the same. Therefore, the only other legal heirs as left were his brothers’ children. D.W.1 also had stated that the said Bakkiyam died 40 years back. The Power of Attorney is dated 1975 and the said Bakkiyam had executed the same. Therefore, it may not be correct that Bakkiyam died 40 years back but she would have died subsequent to the execution of the Power of Attorney. The best person to speak about the death of Jaganathan or Bakkiyam is the defendant, who is the sister’s daughter of Jaganathan and member of the family. Therefore, this Court infers that in the absence of truth not coming from the defendant, it has to be inferred that the said Bakkiyam and Kesavalu who executed the Power of Attorney along with others ceased to exist on the date of execution of the sale deed. As contended by the learned counsel for the appellant, if really the names of Bakkiyam and Kesavalu were omitted to be mentioned in the sale deed and the sale has been conveyed by the other joint owners, the sale may not be binding only insofar as their shares are concerned. However, the defendant has no manner of right to challenge the same as she has not established the alleged oral settlement by Jaganathan and there is no challenge from Bakkiyam or Kesavalu on their own behalf or by their heirs. 15. Insofar as Ex.A.1 sale deed is concerned, there is no specific denial by the defendant in the written statement that the sale deed is not valid or the vendors had no title, etc. excepting the general denial that there was no such sale. Therefore, in the absence of a specific denial on the part of the defendant that Ex.A.1 is not a genuine document, it is not incumbent upon the plaintiffs / respondents to establish the same. Even the evidence of D.W.4 and D.W.5 are also not clear and they do not support the case of the defendant. Therefore, from the above discussion, it can be seen that on the date of death of Jaganathan in 1951, Bakkiyam could not have been the heir. Therefore, not including the name of Bakkiyam in the sale deed irrespective of the fact that whether she was alive or dead on that date, is immaterial. 16. Therefore, from the above discussion, it can be seen that on the date of death of Jaganathan in 1951, Bakkiyam could not have been the heir. Therefore, not including the name of Bakkiyam in the sale deed irrespective of the fact that whether she was alive or dead on that date, is immaterial. 16. Insofar as Kesavalu, one of the executants of the Power of Attorney whose name also is not added in Ex.A.9 is concerned, the same cannot be disputed by the defendant who has got no right in the suit property. The best person who can challenge the same is the person himself i.e., Kesavalu, or his heirs. Therefore, the document Ex.A.1 sale deed, which was executed based on Ex.A.9 Power of Attorney, is true and genuine and valid and the title of the plaintiffs declared by the Courts below is correct and need not be interfered with. The question of law is answered accordingly. 17. Insofar as the possession of the respondents is concerned, the suit property is described as 1086½ Sq.ft. and the Door No. is 101B. In the boundary description, it is stated that it is West of Rajagopal’s house and it is a vacant site. The description of documents in Exs. A.1 and A.8 are also the same and there is no difference. Admittedly, the plaintiffs are living in the adjacent property bearing Door No. 101 and there is no pleading that the suit property is different from the one purchased by them under Ex.A.1. On the contrary, the defendant has claimed that she is in possession of 101 B. The plaintiffs have produced Exs. A.2 to A.6 to prove their possession and Ex.A.2 is a demand for Property Tax in the name of P.G.Rajagopal. All the Exhibits relate to Door No. 101 B whereas the documents produced by the defendants in Exs. B.2, B.4, B.5, to B.8 all relate to Door No. 102/A. 18. At this juncture, it would be relevant to refer to the deposition of D.W.4 who is the Tax Collector in Vellore Municipality and he has deposed to the following effect:- (“TAMIL”) Further, D.W.1, during cross-examination has deposed as follows:- (“TAMIL”) 19. B.2, B.4, B.5, to B.8 all relate to Door No. 102/A. 18. At this juncture, it would be relevant to refer to the deposition of D.W.4 who is the Tax Collector in Vellore Municipality and he has deposed to the following effect:- (“TAMIL”) Further, D.W.1, during cross-examination has deposed as follows:- (“TAMIL”) 19. From the above deposition of D.W.1, who is the defendant herself and D.W.4 who is the Tax Collector of Vellore Municipality, it is clear that the defendant is not living in the suit property and her claim that she is in possession is unacceptable. In view of the foregoing discussion, this Court finds no merits in this appeal so as to interfere with concurrent finding of the Courts below. The Second Appeal is dismissed and the judgment and decree of the trial Court as affirmed by the First Appellate Court is confirmed. However, there shall be no order as to costs.