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2015 DIGILAW 1887 (MAD)

M. Manoharan v. P. Rasu

2015-04-13

C.S.KARNAN

body2015
Judgment :- 1. The brief facts of the case are as follows:- The plaintiffs 1 to 3 / respondents 1 to 3 herein had filed a suit in O.S.No.146 of 2005, on the file of District Munsif Court, Periyakulam against the defendants / appellants stating that the suit schedule mentioned property had been purchased by the father of the first defendant on 26.08.1961 through a registered sale deed bearing document No.2202, on the file of Sub Registrar, Theni. The father of the first defendant had sold the said property in the month of October 1961 to and in favour of the father of the first plaintiff, viz., Paramasivam Chettiyar for a sum of Rs.90/- by way of an oral transaction. The said transaction had happened in the presence of one Kamachi, S/o.Subburam, native of Sedapatti Village and Govindan, S/o.Subbaian, a native of Vadapudupatti. Accordingly, the said Paramasivam Chettiyar is occupying and enjoying the property. The Revenue Authorities had issued a patta, chitta and adangal. The same Paramasivam Chettiyar had expired in the year 1999, after leaving his only son, the first plaintiff herein and as such, the first plaintiff had succeeded the property as sole legal-heir of Late Paramasivam Chettiyar. 2. The plaintiffs further stated that under the circumstances, the defendants 1 to 7, had alienated the said suit schedule mentioned property to and in favour of the eighth and ninth defendants by way of registered sale deed bearing document No.2204, date 12.07.1993. The defendants 1 to 7 have no locus standi or rights to alienate the property. Under these circumstances, the plaintiffs approached the 21st defendant in the third week of January 2005 and requested him for a loan of a sum of Rs.10,000/-. In turn, the 21st defendant told the plaintiffs to meet after three days for arranging the said loan. Accordingly, the plaintiffs met the 21st plaintiff to execute the register mortgage against the loan amount. He accepted the same and handed over the chitta, adangal records to the 21st defendant on 27.01.2015. The 21st defendant had obtained signature from the plaintiffs in the typed document which had been prepared in advance and also obtained signature in the blank papers. Further, the plaintiffs were taken into the Sub Registrar's Office, wherein, signatures were obtained from him by the 21st defendant. The 21st defendant had not permitted the plaintiffs to read the document. The 21st defendant had obtained signature from the plaintiffs in the typed document which had been prepared in advance and also obtained signature in the blank papers. Further, the plaintiffs were taken into the Sub Registrar's Office, wherein, signatures were obtained from him by the 21st defendant. The 21st defendant had not permitted the plaintiffs to read the document. The 12th and 13th defendants had jointly obtained the mortgage deed for a sum of Rs.10,000/- and this arrangement was made by the 21st defendant. 3. The plaintiffs further sated that believing that the said document as mortgage deed, they signed on it. The defendants 8 to 11 had also signed on the said documents. The 21st defendant told the plaintiffs that the defendants 8 to 11 are witnesses. Thereafter, all came out of the Registration Office and then the 21st defendant paid a sum of Rs.9,500/-, after deducting a sum of Rs.500/- towards registration charges. Actually, on 27.01.2005, the 21st defendant had not obtained mortgage deed. Instead of that, a general power of attorney had been executed to and in favour of the 12th and 13th defendants fraudulently. But the plaintiffs have no intention to execute the general power of attorney. The fraud came to light later on. The 21st defendant and his accomplices and 12th and 13th defendants had executed a sale deed to and in favour of the 18th defendant, who is the father of the 21st defendant. On 01.02.2005, the sale deed had been registered and as such, the property to an extent of 2.58 cents and 2.10 cents have been transferred. Thereafter, on 28.01.2005, the defendants 8 to 17 had fraudulently joined with the 21st defendant and alienated a portion of the said property to and in favour of the 14th and 17th defendants through 12th and 13th defendants. 4. The plaintiffs further stated that only after obtaining a copy of the document dated 31.05.2005, they came to know about the contents of the documents which they had signed on 27.01.2005. Only then, the plaintiffs came to know that the 21st defendant had cheated the plaintiffs. Immediately, the plaintiffs cancelled the general power of attorney on 03.02.2005 and the same was informed to the 12th, 13th and 22nd defendants by way of a telegraphic advocate's notice. Only then, the plaintiffs came to know that the 21st defendant had cheated the plaintiffs. Immediately, the plaintiffs cancelled the general power of attorney on 03.02.2005 and the same was informed to the 12th, 13th and 22nd defendants by way of a telegraphic advocate's notice. Thereafter, the 18th defendant had alienated a portion of the suit schedule mentioned property to and in favour of 19th defendant on 04.02.2005 and another portion of property to and in favour of 20th defendant. As the father of the first defendant had sold the said property to and in favour of the father of the first plaintiff through an oral arrangement, the defendants 1 to 7 have no locus standi to execute the sale deed to and in favour of 8 to 11th defendants and the said sale deed is not sustainable under law. The said sale deed is not binding on the right of the plaintiffs. The defendants 8 to 11 had executed the transaction to and in favour of the 12th and 13th defendants on the strength of general power of attorney dated 27.01.2005. Likewise, the sale deed dated 27.01.2005 executed by the 12th and 13th defendants to and in favour of 18th defendant and sale deed dated 04.02.2005 to and in favour of 19th defendant and another sale deed dated 14.02.2005 executed to and in favour of 20th defendant, are not sustainable under law. The 21st defendant had created the document dated 27.01.2005, 28.01.2005, 04.02.2005 and 14.02.2005 respectively and these are not valid under law. On the basis of the said documents, the rights of the property have not been changed according to law. The created documents have not been in the possession of the plaintiffs. Hence, the plaintiffs prayed for a declaration and permanent injunction stating that they are the absolute owners of the property. 5. The 14th defendant had filed a counter statement and the same had been adopted by the defendants 15 to 20. The defendants stated that the first item of suit schedule mentioned property originally belonged to one Subbaian Chettiyar, who alienated the said property to and in favour of Narayanan Chettiyar, on 22.07.1922. After his death, his wife Kottaiammal had succeeded the property and she in turn settled the property through a gift deed dated 02.05.1940 to her two daughters, viz., Injiammal and Mookammal. After his death, his wife Kottaiammal had succeeded the property and she in turn settled the property through a gift deed dated 02.05.1940 to her two daughters, viz., Injiammal and Mookammal. Both had sold the property to and in favour of one Subbaian Chettiar, by way of registered sale deed dated 26.08.1961. After his death, his sole legal-heirs had succeeded the first item of schedule mentioned property and as such, the said property had not been involved in any dispute. Under these circumstances, the contention that the father of the first defendant had sold the said property to and in favour of Kamachi, S/o.Subburam, Govindan, S/o.Subbaian in the month of October 1961, for a sum of Rs.90/-, is false and imaginary. 6. The defendants further stated that after the death of Subbaian Chettiar, his legal-heirs, viz., defendants 1 to 7 alienated the first item of the suit schedule mentioned property to and in favour of defendants 8 to 11 by way of registered sale deed dated 12.06.1993. The relevant documents i.e., revenue records had been mutated in the name of the defendants 8 to 11 who are in physical possession of the property and they had executed a general power of attorney on 27.01.2005 to and in favour of defendants 12 and 13. Under the circumstances, the first and second plaintiffs have wrongly changed the patta in the name of the first plaintiff and on the strength of the erroneous patta, the plaintiffs are claiming the right. Consequently, the plaintiffs had issued a letter and argued that the patta had been issued erroneously in the name of the father of the first defendant and also given an undertaking that on the basis of the said patta, he will not claim any rights over the said property. In the said letter, the son-in-law of the first plaintiff had signed as witness. Further, the defendants 8 to 11 had executed a general power of attorney to and in favour of the 12th and 13th defendants. On the basis of a general power of attorney, 48 cents out of the first item of the suit schedule mentioned property which is 2 acres 58 cents had been sold to the defendants 14 to 17 by the 12th and 13th defendants. The rest of the lands to an extent of 2 acres and 10 cents had been sold to the 18th defendant on 01.02.2005. The rest of the lands to an extent of 2 acres and 10 cents had been sold to the 18th defendant on 01.02.2005. As such, the defendants 14 to 18 have changed the patta in their names respectively. The defendants denied that the 18th defendant is a benami to the 12th and 13th defendants. 7. The defendants further stated that on 01.02.2005, the defendants 12 and 13 had paid a sum of Rs.58,050/- to the defendants 8 to 11 and plaintiffs 1 and 2. To that effect, a payment receipt had been obtained. As such, the plaintiffs have no rights or enjoyment over the said property. The 18th defendant subsequently sold a major portion of the property to various persons and also given them possession on the basis of his sale deed. The 21st defendant is a document writer, who had written the document and besides this, the 21st defendant is the son of the 18th defendant. Therefore, the averments made by the plaintiffs against the 21st defendant is imaginary and cannot be accepted. Further, the plaintiffs allegation that they had requested 21st defendant for a loan of a sum of Rs.10,000/-, for which, the 21st defendant told them to come after three days is also denied. Further, the plaintiffs allegation that the 21st defendant had obtained signatures from the plaintiffs on the typed stamp papers and also on blank papers is also denied. Further, the contention of the plaintiffs that on 27.01.2005, they had obtained a copy of the document and only then, they came to understand that the defendants had created forged documents i.e., a general power of attorney instead of a mortgage deed is also denied. 8. The defendants further stated that the plaintiffs had not disclosed the actual contents of the telegram notice in their plaint averments. Further, the plaintiffs had received money from the 12th and 13th defendants and issued a payment receipt. Thereafter, the plaintiffs attempted to assault the 12th defendant. Hence, a criminal case in Crime No.12 of 2005 has been registered on the file of District Crime Branch for the alleged offence under Sections 406, 420, 341, 506 (i) IPC, which is pending enquiry. The plaintiffs after receiving the sale consideration as full and final had issued payment receipt and as such, the said suit is not maintainable. Now, the properties are vested with the defendants 14 to 18, who are purchasers. The plaintiffs after receiving the sale consideration as full and final had issued payment receipt and as such, the said suit is not maintainable. Now, the properties are vested with the defendants 14 to 18, who are purchasers. The plaintiffs have created documents and filed the above suit which is unscrupulous. The defendants 1 to 7 and 22 and 23 are not necessary parties. Hence, the defendants prayed to dismiss the above suit. 9. The seventh defendant had filed a counter statement and resisted the suit. The defendants 1, 3, 4 and 5 are brothers. Further, the defendants 1 to 5 and 8 to 11 have no interest on the said transaction through sale deed bearing document No.2204. Further, the defendant had executed a sale deed which is not binding against the seventh defendant herein since he is a minor. 10. On considering the averments of all parties, the trial Court had framed 5 issues, viz., "(i) Whether the plaintiffs are entitled to receive declaration and permanent injunction? (ii) Whether the sale deeds are binding on the plaintiffs? (iii) Whether the contentions that the plaintiffs had issued payment receipt on 01.02.2005 and issued an undertaking letter dated 27.01.2005 are correct? (iv) Whether the contention that the suit schedule mentioned property are vested with the defendants 14 to 17 and the 18th defendant respectively is correct? (v) What are the other reliefs which the plaintiffs are entitled to get?" 11. (iv) Whether the contention that the suit schedule mentioned property are vested with the defendants 14 to 17 and the 18th defendant respectively is correct? (v) What are the other reliefs which the plaintiffs are entitled to get?" 11. On the side of the plaintiffs, three witnesses were examined and 13 documents were marked viz., (1) Sale deed executed by the Mookammal in favour of Subbaian Chettiar, (2) Adangal receipts in the name of Paramasivam Chettiar, (3) Joint patta in the name of Paramasivam Chettiar, (4) Sale deed executed by the defendants 1 to 7 in favour of eighth and ninth defendants, (5) a general power of attorney executed by the plaintiffs to and in favour of 12th and 13th defendants, (6) Sale deed executed by the 12th and 13th defendants to and in favour of the 18th defendant (7) Sale deed executed by the defendants 12 and 13 to and in favour of 14 to 17th defendants, (8) cancellation of general power of attorney, (9) Telegraph notice issued by the Advocate to the 12th defendant, (10 and 11) Telegraphic notice issued by the 13th and 22nd defendants, (12) Sale deed executed by the 18th defendant to and in favour of the 19th defendant and (13) Sale deed executed by the 18th defendant to and in favour of the 28th defendant. 12. On the side of the defendants, one witness was examined and 4 documents were marked, viz., (1) payment receipts issued by the defendants 8 to 11 and plaintiffs to the defendants 12 and 13, (2) Undertaking letter given by the defendants 8 to 11 and plaintiffs to the 12th and 13th defendants containing the signature of P.W.3, (3) payment receipts issued by the defendants 8 to 11 and plaintiffs to the 12th and 13th defendants (4) Undertaking letter executed by the defendants 8 to 11 and plaintiffs to the defendants 12 and 13. 13. P.W.1 had adduced evidence that the first plaintiff is his father and the third plaintiff is his brother. He has stated that the suit schedule mentioned property has been classified as dry land. The first defendant had purchased the suit property on 26.08.1961 and he in turn, sold the property to the father of the first plaintiff for a sum of Rs.90/-. The Revenue Department had issued chitta in the name of Paramasivam Chettiar, who was the grandfather of the plaintiff. The first defendant had purchased the suit property on 26.08.1961 and he in turn, sold the property to the father of the first plaintiff for a sum of Rs.90/-. The Revenue Department had issued chitta in the name of Paramasivam Chettiar, who was the grandfather of the plaintiff. Besides this, patta was also issued in his grandfather's name and after his death, his father succeeded the property as sole legal-heir. On 12.07.1993, the defendants 1 to 7 had alienated the said property to and in favour of the eighth and ninth defendants. The defendants 1 to 7 have no locus standi to alienate the property. He further stated that he was not aware of the said transaction till 2004. 14. P.W.1 further stated that in the month of January 2005, he had approached the 21st defendant for a loan of Rs.10,000/-. The 21st defendant had obtained signature in the typed document and blank papers. Further, the 21st defendant took him to the Sub Registrar's Office, Theni and obtained his signature. He had not known the contents of the document. The 12th and 13th defendants had informed him that the document is a simple mortgage. The defendants 8 to 11 had also signed in the document. After registration, the 21st defendant paid a sum of Rs.9,500/- after deducting registration expenditure. Thereafter, they came to know that the document was a general power of attorney, which had been executed in favour of the 12th and 13th defendants. The defendants 8 to 11 have no rights or locus standi to execute the general power of attorney pertaining to the suit mentioned property. P.W.1 further stated that the defendants 12 and 13 had alienated the property to and in favour of the 18th defendant and 8 to 17 defendants on the basis of general power of attorney. 15. P.W.1 further stated that the defendants 1 to 7 had executed a sale deed to and in favour of 8th and 9th defendants on 12.07.1993, which had been registered on the file of the Sub Registrar's Office, bearing document No.2204. The plaintiffs came to know about this fact in the year 2004, regarding the suit schedule mentioned property, after a lapse of around 11 years. P.W.1 further stated that the 21st defendant had obtained signatures without disclosing the contents of the documents. The plaintiffs came to know about this fact in the year 2004, regarding the suit schedule mentioned property, after a lapse of around 11 years. P.W.1 further stated that the 21st defendant had obtained signatures without disclosing the contents of the documents. The 21st defendant had informed the plaintiffs that the defendants 8 to 11 had signed the document as witnesses. As such, the general power of attorney been made by the defendants is a fraudulent one. The other witnesses on the side of the plaintiffs i.e., P.W.2 and P.W.3 had spoken on the same line of P.W.1. 16. D.W.1 had adduced evidence that the suit schedule mentioned property originally belonged to one Subbaian Chettiyar, who had sold the said property to and in favour of Narayanan Chettiyar on 22.07.1992. After the death of Narayanan Chettiyar, his wife Kottaiammal had succeeded the property and she in turn settled the said property in the name of her two daughters by way of gift deeds dated 02.05.1940. Both the beneficiaries had alienated the said property by way of sale deeds dated 26.08.1961 to and in favour of Subbaian Chettiar. After the death of Subbaian Chettiar, his legal-heirs succeeded the property. Under these circumstances, the plaintiffs plea that they had purchased the property from Subbaian Chettiar in the month of October 1961 for a sum of Rs.90/- on oral sale basis, is not true. 17. D.W.1 further stated that the legal-heirs, viz., defendants 1 to 7 of the Late Subbaian Chettiar had executed the sale deed to and in favour of the defendants 8 to 11 by way of registered sale deed dated 12.06.1993. The Revenue records have been mutated in the name of the defendants 8 to 11. As such, the defendants 8 to 11 are in occupation and enjoyment of the same. The first and second plaintiffs taking advantage of the fact that the first plaintiff's name had been erroneously added in the patta of the Land Development Reforms Scheme had disputed the issue. Finally, they had accepted that their name had been erroneously entered in the scheme and had given an undertaking letter that they will not claim any rights over the suit schedule mentioned property, on the basis of said UDR patta. In the said undertaking letter, the son-in-law of the first plaintiff had signed as a witness. Finally, they had accepted that their name had been erroneously entered in the scheme and had given an undertaking letter that they will not claim any rights over the suit schedule mentioned property, on the basis of said UDR patta. In the said undertaking letter, the son-in-law of the first plaintiff had signed as a witness. D.W.1 further stated that the defendants 8 to 11 had executed a general power of attorney to and in favour of the 12th defendant and 13th defendant. On the basis of general power of attorney, the properties had been alienated to and in favour of the defendants 14 to 18 such defendants. Now, the patta also had been transferred in the name of the defendants. D.W.1 further stated that thereafter, the plaintiffs 1 and 2 had received a sum of Rs.58,050/- as a full and final settlement in order to avoid dispute over the said property. D.W.1 further stated that the plaintiffs had no right, title and interest since they had executed an undertaking letter as well as issued payment receipts. 18. On recording the evidence of both sides and on hearing the arguments of the learned counsels on all sides and on perusing the exhibits marked by them, the trial Court decreed the suit. Against the said decree and judgment passed in O.S.No.146 of 2005, dated 11.12.2006, on the file of District Munsif Court, Periyakulam, the defendants have filed an appeal in A.S.No.101 of 2009, on the file of Sub Court Theni. The learned Judge, after hearing the arguments of the learned counsel for their respective parties and on perusing the trial Court Judgment, dismissed the appeal and confirmed the decree and judgment passed by the trial Court. 19. Aggrieved by the concurrent findings of the Courts below, the above appeal has been filed. 20. The highly competent counsel appearing for the appellants submitted that the subject matter of the property had been alienated to and in favour of the father of the plaintiffs under the basis of an oral sale deed, which is not maintainable. Further, P.W.1 had cancelled the right given to the power agent only in respect of 2/6 shares in the said property. The plaintiffs main ground was that their father had purchased the suit schedule mentioned property for a sum of Rs.90/- on an oral basis sale deed from Subbaian Chettiar. Further, P.W.1 had cancelled the right given to the power agent only in respect of 2/6 shares in the said property. The plaintiffs main ground was that their father had purchased the suit schedule mentioned property for a sum of Rs.90/- on an oral basis sale deed from Subbaian Chettiar. In order to substantiate the said transaction, no parallel documents were produced before the trial Court. The plaintiffs had received a sum of Rs.58,050/- from the defendants 12 and 13 and they had issued an undertaking letter stating that they will not raise any dispute over the said property, besides, they had issued a payment receipt. The patta also has been transferred in the name of the defendants 14 to 18, by the Taluk Tahsildar, on the basis of title deeds. Further, the registered sale deeds are existing and are pertaining to the suit schedule mentioned property in the names of the concerned defendants. As such, the declaration suit cannot be maintained unless the sale deeds of the defendants are cancelled. 21. The highly competent counsel appearing for the respondents 11 to 13 submits that the suit schedule mentioned property is belonging to the plaintiffs. The father of the plaintiff, viz., Paramasivam Chettiyar had purchased the said property in the year 1961 from one Subbaian Chettiyar. From the date of purchase, the father of the plaintiffs and the plaintiffs are enjoying the said property. The plaintiffs / respondents has approached the 21st defendant in order to obtain a loan for a sum of Rs.10,000/-. The 21st defendant also agreed to arrange the said loan. Instead of preparing a mortgage deed, he had prepared a general power of attorney in the name of the defendants 12 and 13 and registered the same fraudulently on the file of Sub Registrar's Office on 27.01.2005. Immediately, on knowing the same, the plaintiffs had issued a telegraphic notice through their counsel and informed them that the general power of attorney dated 27.01.2005 was cancelled. Subsequently, the property had been alienated by the defendants among themselves on 04.02.2005. Therefore, the sale deed which had been executed is fraudulent and not valid. 22. Per contra, the highly competent counsel appearing for the appellants submits that on the basis of a general power of attorney, the sale deed had been registered on 28.01.2005 and 04.02.2005 and 14.02.2005 respectively. Therefore, the sale deed which had been executed is fraudulent and not valid. 22. Per contra, the highly competent counsel appearing for the appellants submits that on the basis of a general power of attorney, the sale deed had been registered on 28.01.2005 and 04.02.2005 and 14.02.2005 respectively. The highly competent counsel further submits that if the contention of the plaintiffs that the defendants had created sale deeds fraudulently is true, then it would not have been possible for the plaintiffs to receive a sum of Rs.58,050/-, as a full and final settlement regarding the suit property. Besides the plaintiffs had categorically admitted in their averments in the plaint that they had received a sum of Rs.9,500/- from the 21st defendant. Regarding the said payment, the trial Court had not framed any issues or discussion or findings. Therefore, the decree and judgment passed by the trial Court, which has been confirmed by the first appellate Court are not sustainable under law since the plaintiffs had raised inconsistent statements in the plaint. 23. From the above discussions, this Court is of the view that:- (i) The plaintiffs in their statements had stated that originally, the first plaintiff's father, viz., Subbaian Chettiyar had purchased the said property on 26.08.1961 under a registered sale deed bearing registration No.2202 and he in turn had executed a sale deed to and in favour of father of the first defendant, viz., Paramasivam Chettiyar, for a sum of Rs.90/-. As such, it is difficult to comprehend as to how the general power of attorney had been executed by the defendants 8 to 11 to and in favour of 12th and 13th defendants pertaining to the suit schedule mentioned property and as such, the plaintiffs statement is inconsistent. (ii) The plaintiffs averment stating that the defendants 12 and 13 had obtained a general power of attorney fraudulently and cheated the suit schedule mentioned property is quasi-criminal in nature. Therefore, the plaintiffs ought to have initiated criminal proceedings against the fraudulent persons to prove whether or not they committed fraud. (iii) The plaintiffs had admitted that they received a sum of Rs.9,500/- from the concerned defendants and hence, the issue of why the plaintiffs have not come forward to return the money along with interest agreed by them is unresolved. As such, the suit itself has become defunct. (iii) The plaintiffs had admitted that they received a sum of Rs.9,500/- from the concerned defendants and hence, the issue of why the plaintiffs have not come forward to return the money along with interest agreed by them is unresolved. As such, the suit itself has become defunct. (iv) P.W.1 further stated that the defendants 1 to 7 had executed a sale deed to and in favour of 8th and 9th defendants on 12.07.1993, which had been registered on the file of the Sub Registrar's Office, bearing document No.2204. The contention of P.W.1 is that the plaintiffs came to know about this fact only in the year 2004, regarding suit schedule mentioned property, after a lapse of around 11 years and hence, the raising of this issue by the plaintiffs at this stage is absurd. (v) The said general power of attorney had been registered on the file of Sub Registrar's Office, which is a public office. The plaintiffs ought to have received the said document from the concerned Sub Registrar. Therefore, the plea of the plaintiffs that they are innocent cannot be accepted. (vi) If the defendants 12 and 13 had executed sale deeds to the defendants 8 to 11 and 18 and 19 and 28th defendants, those registered documents would be existing. Therefore, the plaintiffs have to file a suit for declaration to declare the said sale deed as null and void instead of suit for declaration and permanent injunction. 24. On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the judgments of the Courts below and this Court's views mentioned above as (i) to (vi), this Court allows the above Second Appeal. Consequently, the decree and judgment passed by the Sub Court, Theni in A.S.No.101 of 2009, dated 19.02.2010 is set-aside and the decree and judgment passed by the District Munsif Court, Periyakulam in O.S.No.146 of 2005, dated 11.12.2006 is also set-aside. There is no order as to costs.