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2015 DIGILAW 1900 (MAD)

R. Alagarsamy v. A. Narayanasamy

2015-04-15

P.R.SHIVAKUMAR

body2015
JUDGMENT :- 1. This Second Appeal arises out of the Decree passed by the learned Subordinate Judge, Kovilpatti on 30.4.2014 dismissing A.S. No. 43 of 2013 filed against the Decree of the District Munsif, Kovilpatti dated 1.7.2013 made in O.S.No.271 of 2011. 2. The brief facts leading to the filing of the second appeal can be stated thus. “(i) One Sundarraj executed an agreement for sale on 9.5.2009 in favour of A.Narayanasamy, the first respondent herein for sale of the suit property to him. As sale deed was not executed in accordance with the sale agreement, the said Narayanasamy filed a suit in O.S.No.40 of 2009 on the file of the Sub Court, Kovilpatti for specific performance against the said Sundarraj. One Neelakandan and Kasturi, the second respondent herein, were also made co-defendants in the said suit. All the defendants in the said suit (O.S.No.40/2009) contested the same based on their plea that the suit properties had already been purchased by the above said Neelakandan and Kasturi from Sundarraj and that hence the agreement for sale dated 09.05.2009 executed by Sundarraj in favour of Narayanasamy was unenforceable. However, after trial the learned Subordinate Judge, Kovilpatti decreed the said suit O.S.No.40/2009. After the passing of the decree for specific performance in the said suit, the decree was satisfied by the execution of a sale deed by one of the judgment debtor therein, namely Sundarraj, in favour of Narayanasamy on 21.6.2010. (ii) Meanwhile, two judgment debtors, namely Kasturi and Neelakandan, filed an appeal in A.S.No.16/2010 against the decree passed in O.S.No.40/2009. The said appeal, after hearing, came to be dismissed on 31.3.2011. No second appeal came to be filed by them. Under the said circumstances, A.Narayanasamy, the first respondent herein applied for and got Encumbrance Certificate from which came to know that a settlement deed came to be executed by Kasturi (second respondent herein) in favour of her husband Subbaraj (third respondent herein) under a Document dated 12.1.2010, registered as Document No.131 of 2010. On 22.6.2010, Subbaraj (the third respondent herein) executed a registered sale deed in favour of Alagarsamy, the appellant herein viz. Document No.5300/2010 registered in the office of Sub Registrar, Kovilpatti. On 22.6.2010, Subbaraj (the third respondent herein) executed a registered sale deed in favour of Alagarsamy, the appellant herein viz. Document No.5300/2010 registered in the office of Sub Registrar, Kovilpatti. (iii) Accordingly, the first respondent herein (Narayanasamy) approached the learned District Munsif, Kovilpatti with O.S.No.271 of 2011 for a declaration that the settlement deed and mortgage deed both dated 12.1.2010 bearing Document Nos.171/2010 and 172/2010 respectively executed by Kasturi (the second respondent herein) in favour of her husband Subbaraj (the third respondent herein) and by Subbaraj in favour of Alagarsamy, the appellant herein, are null and void . 3. The suit was resisted by the appellant herein, who figured as third defendant in the said suit. The respondents 2 and 3 herein, who figured as defendants 1 and 2 did not contest the suit and remained exparte. iv) The learned Trial Judge, after hearing and on appreciation of evidence, came to the conclusion that the first respondent herein/plaintiff was entitled to the reliefs sought for and accordingly, decreed the suit as prayed for by judgment and decree dated 1.7.2013. The said decree of the trial Court was challenged by the appellant herein (3rd defendant) before the Sub Court, Kovilpatti in A.S.No.43 of 2013. In the said appeal also, Kasturi and Subbaraj, figured as respondents 1 and 2 and they remained exparte. The learned Subordinate Judge, after hearing both sides, concurred with the findings of the trial Court and dismissed the said appeal without costs by judgment and decree dated 30.4.2014 . v) It is the said decree of the lower Appellate Court dated 30.4.2014, against which, the present second appeal has been preferred on various grounds set out in he memorandum of grounds of second appeal. 4. As against a decree passed in an appeal by a Court subordinate to the High Court, a second appeal shall lie to the High Court under Section 100 of C.P.C on a substantial question of law alone. A party preferring a second appeal under Section 100 of C.P.C should state precisely the substantial question of law that arises for consideration in the second appeal and show it with a distinctive head in the grounds of second appeal. In the case on hand, eight questions have been stated to be substantial questions of law that arise for determination in the second appeal. In the case on hand, eight questions have been stated to be substantial questions of law that arise for determination in the second appeal. They are: "A. Whether Section 52 of the Transfer of Property Act would apply to a suit or proceeding, when, such a suit or proceedings had been instituted and procured by the parties to the suit in collusion with each other? B. When the agreement holder pleaded that the owner of the property inspite of the payment of the entire sale consideration covered under the agreement of sale, did not come forward to execute the sale deed and filed a suit for specific performance, whether the execution of the sale deed by the Judgment Debtor himself immediately after the pronouncement of the judgment, and without any Execution Petition would lead to a legal presumption that the decree in the suit for specific performance is a collusive one? C. When the decree for specific performance was passed on 4.6.2010 and when the judgment debtor executed the sale deed on 21.6.2010, by himself, is not a presumption be drawn that such a suit for specific performance is a collusive one? D. Whether the suit for specific performance relating to an agreement of sale can be taken as a suit for immovable property so as to attract Section 52 of the Transfer of Property Act, especially when it has been held that suit for specific performance is not a suit for land? E. When it is held that an agreement of sale could not be taken as a suit for land, whether, the suit for specific performance could be taken as one for immovable property, so as to affect the rights of the parties, to that property, under Section 52 of the Transfer of Property Act? F. When the purchaser of the property under a collusive decree did not implead the vendor, as a party to the later suit, involving the rights of the parties in the later suit also, whether, the non-impleading of the vendor is bad under Order 1 Rule 9 of Code of Civil Procedure? F. When the purchaser of the property under a collusive decree did not implead the vendor, as a party to the later suit, involving the rights of the parties in the later suit also, whether, the non-impleading of the vendor is bad under Order 1 Rule 9 of Code of Civil Procedure? G. When the plaintiff has suppressed the material facts in his plaint, inspite of the fact, certain factors were admitted by him in his pre-suit notice, and when, the pre-suit notice itself had been not produced by him, either along with the plaint, or as his document, whether the plaintiff could be non-suited for coming to the Court with unclean hands? H. When the plaintiff has come to the Court alleging that the defendants had committed acts of fraud, whether, without establishing the case of the plaintiff regarding the alleged acts of fraud, whether, the approach of the Court by shifting the onus of proof upon the defendant regarding the validity of their transactions is legal and proper?" 5. This Court heard the submissions made by Mr.S.Subbiah, the learned counsel for the appellant. The grounds of second appeal, the copies of the judgments of the Courts below and the copies of the other documents produced in the form of typed set of papers have also been perused. Special attention was bestowed on the questions listed in the memorandum of grounds of second appeal as substantial questions of law. After careful consideration of the same, this Court comes to the conclusion that none of the questions suggested by the appellant in the grounds of second appeal can be accepted to be a substantial question of law that has arisen for determination in this second appeal. 6. The sum and substance of the contention sought to be raised by the projected substantial questions of law is “whether encumbrances and alienations made by the parties to the previous suit O.S.No.40/2009 during the pendency of the said suit would be valid as against a party in the suit who emerged successful? The appellant wanted to project a case as if the sale deed under which the first respondent herein/plaintiff claims title to the suit property was obtained by fraud. The appellant wanted to project a case as if the sale deed under which the first respondent herein/plaintiff claims title to the suit property was obtained by fraud. In such an attempt alone, the learned counsel for the appellant advanced an argument that, though an appeal had been filed against the decree granting the relief of specific performance in O.S.No.40/2009 on the file of Sub Court, Kovilpatti, without being compelled by initiation of execution proceedings, Sundarraj executed a sale deed in favour of first respondent/plaintiff on 21.6.2010 and that hence the same can be viewed as a fraud played upon the appellant herein (3rd defendant) and the respondents 2 and 3 (defendants 1 and 2). 7. If at all the appellant herein is of the view that the decree granted in O.S.No.40 of 2009 shall not be binding upon him as it was obtained by playing a fraud upon him or his predecessors in title, he could have very well filed an appeal against the said decree, or got himself impleaded in the appeal A.S.No.16 of 2010 filed against decree passed in O.S.No.40 of 2009 or else after the dismissal of the said appeal (A.S.No.16 of 2010) he could have filed a second appeal with the leave of the High Court. But the appellant herein had not chosen to do so. His predecessors in title viz., Kasturi and Subbaraj who were very much parties in the suit for specific performance, contested the said suit, which ultimately resulted in their failure. In addition, Kasturi (2nd respondent herein) unsuccessfully challenged the decree passed in O.S.No.40/2009 by preferring an appeal in A.S.No.16/2010 on the file of the District Court, Thoothukudi. After the dismissal of the first appeal, she did not choose to file any further appeal. 8. However Kasthuri chose to execute a settlement deed on 12.1.2010 i.e. during the pendency of O.S.No.40/2009 and the said settlement deed was executed to a person, none other than her husband Subbaraj (third respondent herein). The third respondent herein, on the very day on which he got the property settled on him, executed a mortgage deed in favour of the appellant herein. The execution of both the said documents, as rightly held by the Courts below, were done only with the aim of defeating the claim of the first respondent in the event of his emerging successful in the suit O.S.No.40/2009 filed for specific performance. The execution of both the said documents, as rightly held by the Courts below, were done only with the aim of defeating the claim of the first respondent in the event of his emerging successful in the suit O.S.No.40/2009 filed for specific performance. In fact, the said transactions rather than the sale deed executed by Sundarraj in terms of the decree passed by the Sub Court, Kovilpatti in O.S.No.40 of 2009 in favour of the decree holder herein namely Narayanasamy the first respondent herein/plaintiff can be viewed as fraudulent transactions. The very fact that one day after the sale deed came to be executed in obedience to the decree granted in O.S.No.40 of 2009 by the Sundarraj, the judgment debtor herein, Subbaraj, the third respondent herein, chose to execute a sale deed in favour of appellant shall also make it clear that the said transaction was also fraudulent with the intention of defeating the rights of the first respondent herein, who was successful in getting a decree in O.S.No.40 of 2009, which was confirmed by the appellate Court. 9. Though a transaction made by a party to the suit, pending disposal of the suit, cannot be said to be void ab initio, it is made subject to the result of the suit by the principle of lis pendence incorporated in Section 52 of the Transfer of Property Act. Section 52 of the Transfer of Property Act reads as follows:- “52. Transfer of property pending suit relating thereto.-During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government ] of [any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. [Explanation.- For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]” 10. Since the settlement deed dated 12.1.2010, a copy of which is marked as Ex.A2, was executed by a party to the suit in O.S.No.40 of 2009, during the pendency of the suit, it was subject to the result of the said suit. Similar is the position of the mortgage deed, executed by the third respondent herein in favour of the appellant herein on the very same day, a copy of which has been produced as Ex.A3. Though the sale deed dated 21.6.2010, a copy of which has been marked as Ex.A4, came to be executed by the third respondent herein in favour of the appellant herein after the disposal of the suit in O.S.No.40 of 2009, the fact that an appeal came to be filed before the District Court, Thoothukudi in A.S.No.16 of 2010 against the decree passed in O.S.No.40 of 2009 was pending on the date of Ex.A4 is not disputed. Admittedly the said appeal came to be disposed of only in the year 2011. Hence it shall be obvious that the said sale dated 21.6.2010 in favour of the appellant is also hit by the doctrine of lispendence. As such, all the three documents were rightly held by the Courts below to be the documents executed and transactions made by a party to the suit pending disposal of the lis and thus the said documents were null and void and unenforceable visa vise the rights acquired by the first respondent herein under the decree made in O.S.No.40 of 2009, which was confirmed by the dismissal of appeal in A.S.No.16 of 2010. Since a cloud has been cast by such transactions on the title of the first respondent herein/plaintiff, it became necessary to make such cloud vanish by seeking a declaration to the effect that such documents would be null and void. The Courts below have not committed any error in holding that the first respondent herein/plaintiff was entitled to the relief of declaration as sought for. 11. There is no merit in the second appeal. No substantial question of law is shown to have arisen in the second appeal. The second appeal does not even merit admission and the same deserves to be dismissed at the threshhold. 12. In the result, the second appeal is dismissed. No costs.