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2015 DIGILAW 95 (MAD)

Ramamoorthi v. Rajendran

2015-01-08

R.MAHADEVAN

body2015
JUDGMENT R. Mahadevan, J. 1. Aggrieved defendants 3 to 5, 7 to 10, 12, 13 and 15 have filed this second appeal against the concurrent findings of the courts below in decreeing the suit for declaration and permanent injunction with costs in favour of the plaintiff. 2. The case of the plaintiff before the Trial Court is as under:- The suit property was originally belonged to the first defendant and the plaintiff purchased the same from the first defendant under a registered sale deed dated 25.06.1997 for a full and adequate consideration of Rs.25,000/- and he is in possession and enjoyment of the same. The defendants 3 and 4, who are neighbours of defendants 1 and 2, colluded with defendants 1 and 2 and daughters of first defendant, cooked up a sale deed apparently dated 10.06.1997 in their favour. The defendants 3 and 4 illegally purchased old stamp papers at Panruti, a place notorious for the sale of old and ante dated stamp papers, and fabricated the sale deed dated 10.06.1997 and thereby, playing fraud on registration. The defendants 2 to 4 colluded and cooked up another fraudulent sale deed apparently dated 14.08.1997 for Rs.40,000/- in respect of the suit properties and other properties to defeat the plaintiff's title to the suit properties. The defendants 3 and 4, who claim to have purchased the suit properties on 10.06.1997 jointly would not have purchased the same again on 14.08.1997, if the sale dated 10.06.1997 is true. Second defendant, who is the son of the first defendant, did not have title to the suit properties to convey the same to the defendants 3 and 4. The defendants 3 and 4 are not bona fide purchasers for value, without notice of the sale deed dated 25.06.1997 in favour of the plaintiff and his possession of the suit properties. Knowing the above fraudulent sale deeds in favour of third defendant, the plaintiff issued legal notice dated 19.09.1997, to which the defendants 3 and 4 sent reply notice dated 08.10.1997 with false and frivolous allegations. The defendants 5 to 10 falsely claim title to the suit properties through defendants 3 and 4. The defendants joined together and trespassed into the suit properties on 12.08.1998. In such circumstances the plaintiff is constrained to file the suit. 3. The defendants 5 to 10 falsely claim title to the suit properties through defendants 3 and 4. The defendants joined together and trespassed into the suit properties on 12.08.1998. In such circumstances the plaintiff is constrained to file the suit. 3. The suit was resisted by the 3rd defendant by filing written statement, which was adopted by the defendants 1, 4, 5 and 7 to 12, contending that the suit is not maintainable as it is not properly valued and requisite court fee is not paid; and that the suit properties are house and house sites and are bounded by houses and house sites. It was further contended that the suit properties belonged to the first defendant Ammachi Ammal; and that when she offered to sell the same, this defendant and the 4th defendant purchased them under a registered sale deed dated 10.06.1997 for valid and adequate consideration; and that this defendant is a lorry driver and when he had gone on his job to Panruti, he purchased the stamps there itself; though Ammachi ammal and her daughters executed the sale deed on 10.06.1997, it was registered on 18.08.1997 as this defendant and 4th defendant were in short of amounts required for the registration fee and related expenses. It is further stated that the plaintiff, who is the grand son of the first defendant, exploited this situation and fabricated the sale deed as if it was executed on 25.06.1997 and the first defendant never intended to sell the properties to the plaintiff; the plaintiff took the first defendant to the Sub-Registrar's office and got the document registered by misrepresenting her that it was a document to revoke the Will executed by her; the first defendant, who was an illiterate lady in her old age of 82 years and sick, acted on the dictates of the plaintiff; the plaintiff is not entitled to the suit properties and he never took possession of the same. It is also averred that in pursuance of the sale deed dated 10.06.1997, this defendant along with 4th defendant took possession of the properties and was in enjoyment of the same in their own right and they have converted the suit properties into housing plots and sold major portion to various persons, including defendants 5 to 12, on different dates for valuable consideration and they are in peaceful enjoyment. Hence, they prayed for dismissal of the suit. Hence, they prayed for dismissal of the suit. 4. Before the Trial Court, necessary issues have been framed and on the side of plaintiff, four witnesses have been examined as PW1 to PW4 and twelve documents were marked and on the side of defendants, three witnesses have been examined as DW.1 to DW.3 and six documents were marked. Advocate Commissioner's report and plan were marked as Exs.C1 and C2. The Trial Court, on analysis of the oral and documentary evidence adduced on both sides and Advocate Commissioner's report and plan, decreed the suit as prayed for. On appeal, the first appellate court, concurred with the finding of the Trial Court and dismissed the appeal. Aggrieved against the concurrent judgment and decree of both the courts below, the present second appeal has been filed. 5. The second appeal has been admitted identifying the following questions to be the substantial questions of law involved in the second appeal: (i) Are the Courts below justified in holding that though Ex.A2 sale deed was executed and registered on 25.06.1997 much later to Ex.B2 sale deed which was executed on 10.06.1997 have precedence over Ex.B2 overlooking Section 47of the Indian Registration Act? and (ii) Are not the judgments of Courts below vitiated inasmuch as the oral evidence of Dws.1 to 3 are not considered at all before rendering findings? 6. The arguments advanced by Mr. A.K. Kumarasamy, learned counsel for the appellants and by Mr. T.R. Rajaraman, learned counsel appearing on behalf of the respondents are heard in detail. The materials available on record are also perused. 7. The learned counsel for the appellants has submitted that both the courts below have allowed the suit filed by the plaintiffs without properly appreciating the evidence both oral and documentary and have come to a wrong conclusion and therefore, the judgment and decree of the lower appellate court are to be set aside. 8. The learned counsel for the appellants has submitted that Ex.A4 sale deed dated 25.06.1997 executed in favour of the plaintiff is not a true and valid document, since the execution of the same by the first defendant is denied by the first defendant by adopting the written statement of the third defendant. 8. The learned counsel for the appellants has submitted that Ex.A4 sale deed dated 25.06.1997 executed in favour of the plaintiff is not a true and valid document, since the execution of the same by the first defendant is denied by the first defendant by adopting the written statement of the third defendant. He further added that though Ex.B2 sale deed was registered later to Ex.A4 sale deed, Ex.B2 sale deed was executed on 10.06.1997, which is prior to Ex.A2 and hence, as per Section 47 of the Indian Registration Act, Ex.B2 shall operate from the date of execution and not from the date of registration. In support of his contentions, the learned counsel for the appellants relied on the decision of the Hon'ble Supreme Court in Thakur Kishan Singh (Dead) vs. Arvind Kumar reported in 1998 (1) CTC 241. 9. The learned counsel for the respondents has submitted that both the courts below have properly appreciating the evidence, both oral and documentary, and have come to a correct conclusion and therefore, the judgment and decree of both the courts below have to be confirmed. 10. The plaintiff in his evidence had deposed that 4th defendant Rajendran is a lorry driver. Hence, we cannot have suspicion over the contention of the learned counsel for the appellants that as DW.1 is a lorry driver, he purchased stamp papers at Panruti, when he went there in connection with his profession. 11. Moreover DW.2 -Kuppammal, who is the daughter of first defendant, in her chief examination, has deposed that (Editor: The text of the vernacular matter has not been reproduced.) DW.2 -Kuppammal in her cross examination has further deposed as under:- (Editor: The text of the vernacular matter has not been reproduced.) 12. From the evidence of DW.2, who is one of the executrix/seller of Ex.A6 (Ex.B2), it is clear that they executed the sale deed in favour of the defendants and not executed any document in favour of the plaintiff. Though she has stated that the document was registered on the date of execution, she further stated that she was not present at the time of execution of the document, but after execution of the document alone, they got her signature in the Sub Registrar Office and gave the document for registration on the date of signing the document. Though she has stated that the document was registered on the date of execution, she further stated that she was not present at the time of execution of the document, but after execution of the document alone, they got her signature in the Sub Registrar Office and gave the document for registration on the date of signing the document. From the above, it is clear that the document was executed, prior to the registration, only in favour of the defendant and not in favour of the plaintiff. 13. It is settled law that the date of execution is the prime factor to consider the validity of the document. Section 47 of the Registration Act, empowers to claim legality from the date of execution. In Thakur Kishan Singh (Dead) vs. Arvind Kumar reported in 1998 (1) CTC 241, the Hon'ble Apex Court has held as follows:- "3..... Section 47 of the Registration Act provides that a registered document shall operate from the time it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration. It is well established that a document so long it is not registered is not valid yet once it is registered it takes effect from the date of its execution. (See Ram Saran Lall v. Mst Domini Kuer and Nanda Ballabh Gururani v. Smt. Maqbool Begum.) Since, admittedly, the lease deed was executed on 5-12-1949, the plaintiff after registration of it on 3-4-1950 became owner by operation of law on the date when the deed was executed......... " 14. In view of the above, this Court comes to the conclusion that document Ex.A6 (Ex.B2)- sale deed executed on 10.06.1997 in favour of the defendants alone is a true document, which is prior to the execution and registration of Ex.A4 sale deed dated 25.06.1997. Therefore, the substantial questions of law are answered in favour of the appellants and against the respondent/plaintiff. 15. In the result, the second appeal is allowed, thereby setting aside the judgment and decree of both the courts below and the suit is dismissed. No costs. Appeal allowed.