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2017 DIGILAW 1265 (MAD)

D. Stephen Vedharaja v. V. Vaduvanathan

2017-04-26

C.V.KARTHIKEYAN

body2017
JUDGMENT : C.V. Karthikeyan, J. The Defendant in OS. No. 4 of 2012, on the file the Principal District Judge, Thanjavur, is the Appellant in both the appeals. The Defendant had filed AS. No. 200 of 2014, aggrieved by the judgment and decree, dated 5.11.2014 made in OS. No. 4 of 2012 and also filed AS. No. 130 of 2016, aggrieved by the denial and rejection of his counter claim filed in his capacity as the Defendant in OS. No. 4 of 2012, by judgment and decree, dated 5.11.2014. 2. OS. No. 4 of 2012 had been filed to set aside/cancel the sale deed dated 25.5.2011, executed by the Plaintiff in favour of the Defendant as it was claimed that it is vitiated by fraud and coercion and to restrain the Defendant or anyone acting under him from disturbing the Plaintiff's peaceful possession and enjoyment of the suit property and to further restrain the Defendant or his assigns from alienating or encumbering the suit property in favour of third parties and for costs. 3. The suit property is the land and building in TS. No. 80, measuring 328 sq. ft. and TS. No. 81, measuring 177 sq. ft., in all measuring 2104 sq. ft. in Arisikara Street, Municipal 6th Ward, Thanjavur Town, Thanjavur District. 4. It is the case of the Plaintiff in OS. No. 4 of 2012 that the property originally belonged to V. Dhanapackiayathammal, the mother of the Plaintiff. The property devolved on to the Plaintiff V. Vaduvanathan, by virtue of a settlement deed, dated 15.11.1985 executed in his favour. He was in possession and enjoyment of the suit property. The property has been assessed to municipal house tax and water tax. The Defendant D. Stephen Vedharaj, is said to be the friend of the elder son V. Balajiram of the plaintiff. They both studied together at Tiruthangal, Sivakasi, doing B. Pharm Course. The said V. Balajiram, son of the Plaintiff left to Australia for higher studies in 1999. The Defendant also wanted to go abroad. For such purpose and to secure placement, he advanced Rs. 20 lakhs to be deposited with the Australian Government. The Plaintiff's son V. Balajiram suffered income tax proceedings at Australia and was not able to secure placement or residentship to the Plaintiff. Consequently, strained relationship arose between V. Balajiram and the Defendant. 5. The Defendant also wanted to go abroad. For such purpose and to secure placement, he advanced Rs. 20 lakhs to be deposited with the Australian Government. The Plaintiff's son V. Balajiram suffered income tax proceedings at Australia and was not able to secure placement or residentship to the Plaintiff. Consequently, strained relationship arose between V. Balajiram and the Defendant. 5. It is the further case of the Plaintiff that the amount advanced was agreed to be returned after finalisation of the income tax cases at Australia. However, the Defendant filed a complaint on 3.7.1999 before the SBCID, Pondicherry. The Plaintiff was taken to Pondicherry for enquiry and he was compelled to execute a simple mortgage for a sum of Rs. 23,77,182/- by mortgaging the suit property. This was executed on 29.3.2010. However, the Defendant again filed a complaint on 15.3.2011 to the Deputy Superintendent of Police at Thanjavur. The said police officer along with other police officials threatened the Plaintiff with dire consequences and held out that he must convey the suit property in favour of the Defendant. The Plaintiff refused. The Defendant stated that the sale was not intended to be acted upon, but is only an additional security to the existing mortgage. Consequently, the plaintiff executed a registered sale deed in favour of the Defendant with respect to the suit property on 25.5.2011. 6. It is the further case of the Plaintiff that the settlement deed dated 15.11.1985 and anterior title deeds were handed over to the Defendant by the plaintiff. On the same day on 25.5.2011, the Defendant executed an unregistered agreement of sale with respect to the very same property agreeing to convey the same to the Plaintiff's another son V. Vishnu Sridhar. It had been stated by the Plaintiff that the execution of agreement of sale on 25.5.2011 and the mortgage deed on 29.3.2010 would clearly bring out the intention of the Defendant that they were to secure his money advanced to V. Balajiram, the son of the Plaintiff. However, the Defendant claimed to be the actual purchaser of the suit property and demanded possession on 25.8.2011. Claiming that the Defendant had cheated the Plaintiff and extorted the suit property and with the help of hooligans, had given a false complaint to the police and would dispossess the Plaintiff, the suit had been filed. 7. Initially, the Plaintiff had filed OS. Claiming that the Defendant had cheated the Plaintiff and extorted the suit property and with the help of hooligans, had given a false complaint to the police and would dispossess the Plaintiff, the suit had been filed. 7. Initially, the Plaintiff had filed OS. No. 223 of 2011, seeking permanent injunction before the Principal Sub Court, Thanjavur, to protect his possession. The Defendant had also filed his written statement. After obtaining liberty to institute a fresh suit on the same cause of action, the Plaintiff had filed the present suit for the reliefs as stated above. 8. The Defendant had filed his written statement. It had been claimed that the Defendant, as a close friend of the son of the Plaintiff V. Balajiram, had remitted a sum of Rs. 23,77,182/- into the account of V. Balajiram on the promise that a job would be secured at Australia with necessary visa and other related factors. The said amount had not been repaid by the son of the Plaintiff. Since the Plaintiff was evading and postponing the payment, the Defendant had to file a police complaint before the SBCID, Pondicherry. The Plaintiff voluntarily executed a simple registered mortgage deed for Rs. 23,77,182/- on 29.3.2010. However, the mortgage was not discharged. Consequently, the Defendant again had to file yet another complaint before the police. Thereafter, the Plaintiff voluntarily came forward to execute the sale deed on 25.5.2011 which was also registered. The allegation that fraud and undue influence were exercised with the help of the police was specifically denied. The Plaintiff sought six months time to vacate the premises after executing the sale deed. The Defendant specifically denied execution of the agreement of sale in favour of V. Vishnu Sridhar. 9. The Defendant, in the written statement, claimed that V. Vishnu Sridhar can always enforce the said agreement for specific performance of the contract. It had been reiterated that execution of the sale deed was a voluntary act of the Plaintiff. The conduct of the Plaintiff was exposed that he filed OS. No. 223 of 2011, seeking permanent injunction. The Defendant also raised issue relating to payment of court fees by the Plaintiff and also stated that the suit is not maintainable. The Defendant also filed an additional written statement along with a counter claim and stated that the Plaintiff is liable to pay a sum of Rs. No. 223 of 2011, seeking permanent injunction. The Defendant also raised issue relating to payment of court fees by the Plaintiff and also stated that the suit is not maintainable. The Defendant also filed an additional written statement along with a counter claim and stated that the Plaintiff is liable to pay a sum of Rs. 10,000/- from the date of the counter claim till the delivery of possession, towards damages for use and occupation. The Defendant also revoked the licence granting permission to the Plaintiff to continue to be in possession of the suit property. The Defendant also sought cost of the counter claim. 10. On consideration of the pleadings and also the counter claim, the court below had framed the following issues and an additional issue:- 1. Whether the sale deed dated 25.5.2011 was executed as additional security to the mortgage deed dated 29.3.2010? 2. Whether the Defendant had executed an agreement of sale in favour of the V. Vishnu Sridhar on 25.5.2011? 3. Whether the Plaintiff is in permissive occupation of the suit property? 4. Whether the Plaintiff is entitled to a decree to revoke/cancel the sale deed dated 25.5.2011? 5. Whether the Plaintiff is entitled to the relief of permanent injunction with respect to possession of the suit property? 6. Whether the Plaintiff is entitled to permanent injunction, restraining the Defendant from alienating the suit property? 7. To what other reliefs the Plaintiff is entitled to? Additional Issue:- 1. Whether the Defendant is entitled to possession of the suit property on the basis of the sale deed dated 25.5.2011? 11. The parties went to trial. During the trial, the Plaintiff examined himself as PW.1, his son Vishnu Sridhar, as PW.2, the scribe Manimaran as PW.3, the document typist Suseela as PW.4 and another independent witness Ravichandran as PW.5. The Defendant examined himself as DW.1. 12. Before the Trial Court, the Plaintiff had marked Ex.A1 to Ex.A51. The settlement deed in favour of the Plaintiff dated 15.11.1985 was marked as Ex.A1. The mortgage deed executed by the Plaintiff in favour of the Defendant dated 29.3.2010 was marked as Ex.A2. The sale deed executed by the Plaintiff in favour of the Defendant dated 25.5.2011 was marked as Ex.A3. The ration card of the Plaintiff and the revenue records were marked as Ex.A4 to Ex.A9 and Ex.A17 to Ex.A28 and Ex.A49. The mortgage deed executed by the Plaintiff in favour of the Defendant dated 29.3.2010 was marked as Ex.A2. The sale deed executed by the Plaintiff in favour of the Defendant dated 25.5.2011 was marked as Ex.A3. The ration card of the Plaintiff and the revenue records were marked as Ex.A4 to Ex.A9 and Ex.A17 to Ex.A28 and Ex.A49. The suit records with respect to the earlier suit in OS. No. 223 of 2011 were marked as Ex.A10 to Ex.A15. The complaints given by the Plaintiff to the authorities and the acknowledgement cards were marked as Ex.A29 to Ex.A45. The newspaper advertisement issued by the Plaintiff was marked as Ex.A46 and the CD and the photographs were marked as Ex.A47, Ex.A48, Ex.A50 and Ex.A51. The Defendant had marked Ex.B 1 to Ex.B 11. These included as Ex.B 1, the mortgage deed dated 29.3.2010, as Ex.B21 the sale deed dated 5.5.2011, as Ex.B2 the settlement deed in favour of the Plaintiff dated 15.11.1985, the revenue records of the suit property as Ex.B4 to Ex.B8, the statement of accounts with respect to the Defendant's bank account as Ex.B9 and the records with respect to OS. No. 223 of 2011 as Ex.B 10 and Ex.B 11. The agreement of sale executed by the Defendant in favour of Vishnu Sridhar dated 25.5.2011 was marked as Ex.X1. 13. On the basis of the oral and documentary evidence, the court below found that Ex.X1 agreement of sale had been prepared by the very same person, who also prepared Ex.A2, the mortgage deed and Ex.A3, sale deed and also found that Ex.X1 agreement of sale had been executed only by the Defendant. The court below also found that the Defendant had not proceeded for enforcing the mortgage deed, Ex.A2. On the other hand, he had given a police complaint before the Deputy Superintendent of Police at Thanjavur and with the help of the Police, exercised undue influence and coercion on the Plaintiff to execute Ex.A3 sale deed. The role of the police in execution of the sale deed had been found to be true by the court below. The court below therefore held that the Plaintiff was entitled to the relief of revocation/cancellation of the sale deed dated 25.5.2011, marked as Ex.A3. Consequently, the court below also granted the consequential relief of permanent injunction restraining the Defendant from alienating or encumbering the suit property. The court below therefore held that the Plaintiff was entitled to the relief of revocation/cancellation of the sale deed dated 25.5.2011, marked as Ex.A3. Consequently, the court below also granted the consequential relief of permanent injunction restraining the Defendant from alienating or encumbering the suit property. With respect to the additional issue, since the court below had found that the sale deed was obtained under threat, coercion and undue influence, it was held that no right will pass on to the Defendant and the Defendant cannot seek either possession or mesne profits. Consequently, the counter claim of the Defendant was also rejected. In effect, the court below had decreed the suit, but did not award costs of the litigation. Challenging the said judgment and decree, the Defendant had filed these appeals. 14. This court heard the learned counsel on either side and also perused the materials placed on record. 15. Before this court, Mr. G.R. Swaminathan, the learned counsel for the Appellant, after taking the court through the facts of the case, stated that fraud and coercion had not been specifically pleaded in the plaint. There had been no complaint given by the Respondent against the actions of the Police before superior officers. The learned counsel further pointed out that the earlier suit in OS. No. 223 of 2011 had been filed three months after execution of the sale deed. The learned counsel further stated that lodging a police complaint cannot be termed as coercion. It had also been pointed out that the liability to the Defendant had been admitted and execution of Ex.A2/Ex.B1 mortgage deed dated 29.3.2010 had been accepted by the Respondent, but it was only Ex.A3/Ex.B2 sale deed dated 25.5.2011, which alone has been challenged and disputed by the Respondent. The learned counsel further pointed out that the complaint before the Pondicherry Police was made on 7.3.2009 and the mortgage deed was executed only on 29.3.2010 and similarly, the complaint before the Police at Pondicherry was lodged on 15.3.2011 and the sale deed was executed only on 25.5.2011. The learned counsel further stated that since the sale deed is a registered document, a presumption in favour of the Government officials in discharging their duty officially and legally is to be drawn. The learned counsel therefore stated that the suit should be dismissed and the counter claim should be granted in favour of the Appellant. 16. The learned counsel further stated that since the sale deed is a registered document, a presumption in favour of the Government officials in discharging their duty officially and legally is to be drawn. The learned counsel therefore stated that the suit should be dismissed and the counter claim should be granted in favour of the Appellant. 16. Disputing the above contentions of the learned counsel for the Appellant, Ms. N. Krishnaveni, the learned senior counsel for the Respondent in both the appeals also took the court through the facts of the case. The learned senior counsel was particular in pointing out Ex.B9, filed by the Appellant in his capacity as Defendant. Ex.B9 is the bank payment receipts and according to the same, on 19.1.2006, a sum of 2383.08 AUD had been remitted to V. Balajiram, the son of the Respondent by the Defendant. However, all the other amounts, on 6.3.2006, to a sum of 5227 AUD, on 13.3.2006 to a sum of 4535.83 AUD, on 22.3.2006 to a sum of 12399.26 AUD, on 10.4.2006 to a sum of 8303 AUD, on 26.4.2006 to a sum of 5275.49 AUD and on 24.2.2006 to a sum of 7494 AUD, on 11.05.2006 to a sum of 7098,24 AUD, on 6.6.2006 to a sum of 5772.01 AUD and on 12.07.2006 to a sum of 1500 AUD had been paid by C. Sathya, wife of the Defendant to V. Balajiram at Australia. The learned senior counsel stated that the claim of the Appellant that he had paid a sum of Rs. 23,77,182/- is false and the Appellant had no cause of action as against the Respondent. 17. I have carefully considered the rival submissions of the learned counsel on either side. 18. As is evident from the extract of the pleadings, the Respondent had come to court, seeking the relief of cancellation of the sale deed dated 25.5.2011 on the ground that it had been obtained by fraud and coercion. In this connection, the learned counsel for the Appellant, who was the Defendant in the suit, had relied on the decision of the Honourable Supreme Court reported in Bishundeo Narain and Another v. Seogeni Rai and Others, AIR 1951 SC 280 wherein in paragraphs 24 and 25, the Honourable Supreme Court had held as follows:- "24. We turn next to the questions of undue influence and coercion. We turn next to the questions of undue influence and coercion. Now it is to be observed that these have not been separately pleaded. It is true they may overlap in part in some cases but they are separate and separable categories in law and must be separately pleaded. 25. It is also to be observed that no proper particulars have been furnished. Now if there is one rule which is better established than any other, it is that in case of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be and the same applies to undue influence and coercion. See Order 6, Rule 4 of CPC." 19. Order 6, Rule 4 of CPC reads as follows :- "4. Particulars to be given where necessary:- In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading." 20. Pointing out the above, the learned counsel for the Appellant vehemently put forward that the necessary ingredients relating to fraud or coercion surrounding the execution of the sale deed had not been pleaded in the plaint. He stated that the plaint is bereft of fundamental details, regarding fraud and coercion and consequently, the sale deed which had been registered and executed, has to be upheld by the court. The sale deed, which had been marked as Ex.B2 dated 25.5.2011, has been registered as Document No. 2808/2011. Pointing out the above, the learned counsel for the Appellant stated that a presumption of registered document is to be drawn in favour of the fact that all formalities have been completed during the registration process and there can be no presumption of existence of fraud or coercion. 21. I have carefully considered the said arguments. 22. In the plaint, the Respondent had stated as follows with respect to the execution of the sale deed:- "5. 21. I have carefully considered the said arguments. 22. In the plaint, the Respondent had stated as follows with respect to the execution of the sale deed:- "5. The Plaintiff humbly submits that the Defendant in order to show further that the sale deed was not acted upon, the Defendant on the even date of the sale above stated had executed an unregistered sale agreement in favour of the Plaintiff's another son V. Vishnu Sridhar. The quantum in the sale agreement dated 25.5.2011 and the simple mortgage deed dated 29.3.2010 will clearly bring out the intention of the Defendant is only to secure his money." 23. Pointing out the above, the learned senior counsel for the Respondent stated that necessary ingredients with respect to fraud and coercion have been stated. Much reliance was placed on Ex.B9. As pointed out above, in Ex.B9 except for the first payment, all other payments were made by C. Sathya who is said to be wife of the Appellant. The status of husband and wife as separate individual has been recognised by courts of law. It is seen from the document that monies have been sent by the said Sathya, who is not a party to the litigation and who has not preferred any complaint either before the police at Pondicherry or before the police at Thanjavur and moreover, the sale deed has not been obtained in her name. The Appellant had played a predominant role in obtaining the mortgage deed in his name even though there was no consideration paid by him. Moreover, the Appellant had also obtained a sale deed in his name even though he has not paid any consideration as is evidenced by Ex.B9. In Ex.B2, which is the sale deed, when the consideration part is examined, it is seen that it had been given as follows:- VERNACULAR MATTER 24. It is seen that the consideration shown in the sale deed is Rs. 12 lakhs. On the other hand, in Ex.B1, which is the mortgage deed, the reason for entering into the mortgage has been given as follows :- VERNACULAR MATTER 25. It is seen that the consideration in the sale deed Ex.B2 actually related back to 1999 when the son of the Respondent left to Australia and not the alleged payments said to have been made by the Appellant. It is seen that the consideration in the sale deed Ex.B2 actually related back to 1999 when the son of the Respondent left to Australia and not the alleged payments said to have been made by the Appellant. The consideration in Ex.B1 mortgage deed related to amounts said to have been given by the Appellant towards his travel to Australia. The documents are per se tainted. Ex.B2 sale deed has no consideration at all. The amount mentioned related to a transaction that cannot be legally accepted. It was also not pleaded by in the written statement. I hold that it is therefore very evident that the Plaintiff has been forced to sign document after document. These documents have been executed only pursuant to the police complaint given by the Appellant before the Pondicherry Police and before the Thanjavur Police. The learned counsel for the Appellant claimed that lodging a police complaint cannot be treated as a coercive act. It is correct. But, when the police overstep their jurisdiction and compel execution of documents, where recitals show mutually contradictory reasons for the consideration and when these facts are suppressed in the written statement, a strong presumption can be drawn that the execution of the documents was the result of coercion and undue influence which naturally vitiate the document, though it may be registered. Registration is only an announcement to the general public regarding execution of a document, but it will not by itself remove the taints surrounding the circumstances of execution. 26. It is also pertinent to point out that the Respondent was aged 62 years at the time of institution of the suit. As the first instance, he had filed OS. No. 223 of 2006, seeking to protect his possession and thereafter, after obtaining leave, has instituted the present suit to declare the sale deed as null and void. In fact, in the written statement, the Defendant had not mentioned anything about his wife Sathya or the fact that she had lent substantial money to the Respondent. This naturally means that the Appellant had not disclosed proper facts to the court. He probably feels that he is conveniently placed since he has the mortgage deed and also the sale deed in his name. However, it is very clear that the documents have been executed only subsequent to the police complaint. This naturally means that the Appellant had not disclosed proper facts to the court. He probably feels that he is conveniently placed since he has the mortgage deed and also the sale deed in his name. However, it is very clear that the documents have been executed only subsequent to the police complaint. Even in the sale deed, the consideration is shown as Rs. 12 lakhs which is not only inadequate consideration, but actually related back to the year 1999 and consequently, there has been no consideration for the sale deed. The document is invalid and non-est in the eye of law. The said consideration also indicates that the amount has been paid for the son of the Plaintiff going to Australia and not towards purchase of the property. It is clear that for selling the property, the Respondent had not been paid any consideration at all. It is also mentioned that the consideration had been paid at the time when the son of the Respondent went to Australia. The son of the Respondent went to Australia in 1999 and it is stated that for that purpose, the Appellant had paid a sum of Rs. 12 lakhs. The amount paid in 1999 can never be related to a sale transaction in the year 2011. Not only is the object illegal, but also the consideration is illegal, inadequate and in fact, there is no consideration at all. 27. In Ex.B 1, it has been mentioned that the son of the Respondent had obtained as loan from the Appellant a sum of Rs. 23,77,182/-. However, Ex.B6 speaks otherwise. According to Ex.B6, it was the wife of the Appellant who had paid major portion of the amount. Pleadings are mutually destructive when compared with the documents. I hold that the Appellant had suppressed material facts. I find no reason to interfere with the well reasoned judgment of the court below. 28. In the result, both the appeal suits are dismissed with costs. The judgment and decree dated 5.11.2004 made in OS. No. 4 of 2012 is confirmed.