Research › Search › Judgment

Madras High Court · body

2017 DIGILAW 2450 (MAD)

Durairaj v. M. Khousalya

2017-08-07

TEEKAA RAMAN

body2017
JUDGMENT : 1. The defeat second defendant is the appellant herein. The original plaintiffs 1 and 2 have filed a suit for declaration of their title to the suit property and for injunction against the second defendant from interfering with peaceful possession and enjoyment of the same or in the alternate, declaration of title and recovery of possession with mens profit. 2. The summary of the averment is that the first plaintiff herein is the absolute owner of the suit property. Her husband had duly executed, got attested and registered as per law a Gift Settlement Deed in favour of the first plaintiff in respect of the under suit property under document dated 25.02.1985. The said gift deed was accepted by the first plaintiff. It has come into effect and the first plaintiff had been in possession of the property, even since the date of the said gift deed, the first plaintiff alone has been in possession and enjoyment of the suit property with absolute ownership thereof and exercising all rights. 3. The first plaintiff's husband along with his brother viz., the first defendant purchased the suit property on 14.08.1962 from the previous lawful owner. The first defendant herein for valuable consideration has relinquished his right, title and interest in the joint purchase relating to the suit property under a document of release dated 14.08.1964. The original release deed duly executed by the first defendant and got registered as per law, thereby, the first plaintiff's husband alone became the exclusive owner of the suit property in view of his obtaining release deed for valuable consideration from his brother, the first defendant as aforesaid. 4. The brief averments of the written statement filed by the first defendant that are necessary to decide this appeal are as follows: The first plaintiff is the elder brother's wife of the first defendant. The alleged gift settlement deed in favour of the first plaintiff is not admitted. The second plaintiff executed a registered general power of attorney in favour of the first defendant on 23.01.1985 and the power of attorney has not been cancelled till the filing of the written statement. The execution of the settlement deed was not disclosed to the knowledge of the first defendant till today. The first defendant is entitled to act on the power of attorney given by the second plaintiff. The execution of the settlement deed was not disclosed to the knowledge of the first defendant till today. The first defendant is entitled to act on the power of attorney given by the second plaintiff. There is no restriction whatsoever placed on the defendant while dealing with the suit property. In fact, the power of attorney was executed only to facilitate the sale of the suit property, as the second plaintiff was in Madras. Based upon the power of attorney, the first defendant sold the property on 21.03.1985 to the second defendant for a sum of Rs.22,000/-. This sale price was immediately paid to the second plaintiff. After the purchase, the second defendant is in possession and enjoyment of the suit property as a purchaser. The first plaintiff cannot question the power of attorney executed by the second plaintiff. The power of attorney is true, valid and binding upon the plaintiffs. The encumbrance certificate did not reveal the execution of the settlement deed. The sale executed by the first defendant is a bona fide transaction without notice of execution of the alleged settlement deed. The sale deed is true and valid. 5. The brief averments of the written statement filed by the second defendant that are necessary to decide this appeal are as follows: The first plaintiff cannot claim any title, based upon the settlement deed. The first plaintiff is not in possession of the suit property. The first defendant not relinquish his right, title and interest and he did not execute any release deed dated 14.08.1964. Therefore, the second plaintiff cannot claim that he is the absolute owner. The suit property is in the possession and enjoyment of the second defendant alone. Before the alleged execution of the gift deed, he should have done that. Moreover, he had only 50% of the share over the property and he has no power to deal with the entire extent of the suit property. The second plaintiff has got 50% of the share over the suit property. The second defendant is a bona fide purchaser of the property and he is in enjoyment. The suit filed is barred by limitation. The suit property was purchased by the second plaintiff and the first defendant when they were in joint family from and out of the income from their ancestral properties. The second defendant is a bona fide purchaser of the property and he is in enjoyment. The suit filed is barred by limitation. The suit property was purchased by the second plaintiff and the first defendant when they were in joint family from and out of the income from their ancestral properties. Since the second plaintiff has inherited the property from his ancestors, he has no right to give the property to his wife as a gift. The alleged gift in favour of the first plaintiff itself is illegal and void. 6. The trial Court, based upon the pleadings, has formulated as many as 12 issues and additional issue was also framed. 7. On behalf of the plaintiffs, the first plaintiff/Seethalakshmi examined herself as P.W.1 and her husband was examined as P.W.2 and marked Exs.A.1 to A.4 and first defendant was examined as D.W.1 and the purchaser from the first defendant was examined himself as D.W.2 (appellant in the second appeal) and staff from the Sub-Registrar office was examined D.W.3 and one of the attestor of the alleged general power of attorney was examined as D.W.4. 8. On consideration of both oral and documentary evidence, the trial Court has held that the plaintiffs are not entitled for any relief and accordingly, dismissed the suit. Pending trial, after examination of witnesses, the first plaintiff/R.Seethalakshmi died and accordingly, plaintiffs 3, 4 and 5 were brought on record. Aggrieved against the judgment of the trial Court, they have preferred an appeal before the Principal District Judge, Tiruchirapalli and pending appeal, the original second plaintiff died and L.Rs. were brought on record. After hearing both the arguments, touching upon the alleged Ex.B.16-power of attorney, the Lower Appellate Court has formulated following five points for consideration. "1. Whether Ex.B.16-power of attorney is a true document? 2. Whether the sale effected by the first defendant in favour of the second defendant as power agent of the second plaintiff is valid? 3. Whether the settlement deed Ex.A.3 executed by second plaintiff in favour of first plaintiff is true, valid and acted upon? 4. Whether the plaintiffs are entitled to the relief of declaration of title? 5. Whether the plaintiffs are entitled to the relief of permanent injunction or recovery of possession?" 9. 3. Whether the settlement deed Ex.A.3 executed by second plaintiff in favour of first plaintiff is true, valid and acted upon? 4. Whether the plaintiffs are entitled to the relief of declaration of title? 5. Whether the plaintiffs are entitled to the relief of permanent injunction or recovery of possession?" 9. After consideration of the evidence available before the Court, the Lower Appellate Court has come to conclusion that Ex.B.16- power of attorney is forged one and sale effected by the first defendant on the strength of Ex.B.16 is not valid. Consequently, the second defendant cannot drive any title to the property and also held that his possession cannot be recognized by law and hence, ordered for recovery of possession besides held that Ex.A.3-Settlement Deed executed by the second plaintiff in favour of the first plaintiff is true and valid and accordingly, ordered for declaration of title of the plaintiff. Hence, the defeated second defendant alone has preferred the second appeal. 10. The second appeal has been admitted on the following substantial question of law:- "Is it correct approach on the part of the first appellate Court, to decide the Deed of Power of Attorney as forged one, without getting any opinion from an expert?" 11. Mr.M.V.Venkataseshan, learned counsel appearing for the appellant also filed additional typed set of papers on behalf of the appellant and Mr.K.Srinivasan, learned Senior Counsel appearing for respondents 1 and 2 also filed additional typed set of papers. 12. The learned counsel appearing for the appellant has contended that the trial Court has exceeded his jurisdiction in coming to the conclusion that Ex.B.16-power of attorney executed by the second plaintiff in favour of the first defendant is forged without getting any opinion from an expert which is framed as a substantial question of law. Incidental thereto, he also alleged that the Lower Appellate Court is erred in not looking into the document Ex.B.16 and ought to have admitted as a secondary evidence and ought to have held that the defendants have title to the suit property. It is further contended that the Lower Appellate Court has failed to see that in the absence of cancellation of the power of attorney deed and execution of settlement deed under Ex.A.3 by the second plaintiff in favour of the first plaintiff is invalid in law. It is further contended that the Lower Appellate Court has failed to see that in the absence of cancellation of the power of attorney deed and execution of settlement deed under Ex.A.3 by the second plaintiff in favour of the first plaintiff is invalid in law. In other words, according to the learned counsel for the appellant, law requires the second plaintiff to cancel the power deed Ex.B.16 before execution of the settlement deed. 13. Per contra, Mr.K.Srinivasan, learned Senior Counsel appearing for respondents 1 and 2 made submissions in support of the judgment of the Lower Appellate Court and contended that though the defendants 1 and 2 have pleaded that there was a general power of attorney by the second plaintiff/Ramamurthi in favour of his younger brother first defendant Krishnamurthi, the original document has not produced before the Court and no explanation was offered for non production of the document, besides, though the second defendant, (the appellant herein) claims to have obtained a sale deed, they have not chosen to produce the original sale deed before the Court. 14. Besides, the plaintiffs have successfully demonstrated that Ex.B.16-power of attorney is a forged one could not be true. Consequently, Ex.A.4-Sale Deed in favour of the second defendant has no legal legs to stand and hence, prayed for dismissal of the appeal. 15. Mr.K.Sridhar, learned counsel appearing for respondents 5 to 7 has made submissions in support of the judgment of the Lower Appellate Court. 16. The plaint proceeds on the basis that the property in question was originally purchased under Ex.A.1 on 14.08.1962 by the second plaintiff and the first defendant and under Ex.B.5-Partition Deed, the property was divided between the second plaintiff and first defendant on 02.05.1963. Thereafter, the first defendant has released his property under Ex.A.2 in favour of the second plaintiff on 14.08.1964. The case of the respondents/plaintiffs is that under Ex.A. 3-Settlement Deed, the second plaintiff gifted the property to his wife, first plaintiff while so, the second defendant claiming him to be a power of attorney of the second plaintiff and claiming to be half share holder of the property seems to have executed a fraudulent Sale Deed under Ex.A.4 in favour of the second defendant and hence, suit for declaration of title and for recovery of possession. 17. 17. Per contra, the appellant/second defendant, in the written statement, contended that on 23.01.1985, the second plaintiff has executed a general power of attorney in favour of the first defendant under Ex.A.7 (certified Xerox copy is marked as Ex.B.16) and on the strength of the power of attorney, he had executed the Sale Deed under Ex.A.4 in favour of the second defendant. 18. Before adverting into the rival contentions of both the parties, it is to be stated that the entire case is archour around Ex.B. 7-power of attorney alleged to have been executed by the second plaintiff Ramamurthi in favour of his younger brother first defendant Krishnamurthi is true or not?. Admittedly, though the defendants claimed that it is true that they have not produced the original power of attorney before the Lower Court on the ground that in view of the complaint given by the second plaintiff/Ramamurthi, the Inspector of Police, Central Crime Branch, Chennai, had seized both deeds viz., the power of attorney deed dated 23.01.1985 and Sale Deed dated 21.03.1985 and they have stated that they have taken best steps to produce the document and despite diligent steps have been taken, they have not produced the document and hence, they have summoned the photocopy of the document under Ex.B.16. 19. The learned counsel appearing for the appellant contended that all necessary steps have been taken to produce the original however, the same could not be available and marked Exs.B.8 and B.9 letter addressed by the counsel to the Inspector of Police, Central Crime Branch, which seems to have been returned for insufficient address and hence, this Court holds that a return cover with insufficient address cannot be substituted that they have taken effective steps for production of the original before the Court. According to the respondents/plaintiffs, Ex.B.7 = Ex.B.16 is a forged document. 20. Mr.K.Srinivasan, learned Senior Counsel appearing for respondents 1 and 2 contended that on perusal of the contents of the document, it will reveal that the property is described to be the joint family property of second plaintiff/Ramamurthi and the first defendant/Krishnamurthi and accordingly, it is further recital that in respect of the half share of P.W.2-Ramamurthi, a power of attorney was conveyed to first defendant/Krishnamurthi so also in Ex.A.4-Sale Deed in favour of the second defendant executed by the first defendant, same recitals have been found. It remains to be stated that as early as on 14.08.1964, the first defendant/Krishnamurthi has released his share in the property in favour of the first plaintiff under Ex.A.2. Neither in the written statement nor in the witness box as D.W.1, the first defendant has not denied the execution of Ex.A.2 which has a recital as narrated above. Therefore, even according to the first defendant/Krishnamurthi, the second plaintiff has become sole and absolute owner of the property as early as on 14.08.1964 under Ex.A.2. Therefore, at no stretch of imagination, the second plaintiff could describe his brother as joint owner of the property representing the half share under Ex.A.4 so also under Ex.B.7=B.16. In view of the undisputed fact that the second defendant/Krishnamurthi has no share in the property as evidenced under Ex.A.2, both the document in question viz., Ex.B.7-General Power of Attorney and Ex.A.4-Sale Deed could not be true in all sense of reasoning. Admittedly, Ex.A.3-Settlement Deed by the second plaintiff in favour of the first plaintiff is on 25.02.1985 registered within the concerned jurisdictional Sub-Registrar office. While that be so, it cannot be countenanced by the appellant's counsel how the second defendant chosen to purchase the very same property under Ex.A.4 on 21.03.1985. Had the second defendant applied for encumbrance certificate before effecting the purchase under the Sale Deed-Ex.A.4 on 21.03.1985, he could have noticed the fact that neither the second plaintiff nor the first defendant is owner of the property on that date viz., 21.03.1985, since Ex.A.3-Settlement Deed was registered in the concerned Sub-Registrar office as early as on 25.02.1985 in favour of the first plaintiff. When the above said fact was confronted in the cross-examination of D.W.1 and D.W.2, both have evaded to answer assumes significance and also throws the colour of the transaction they have projected before the Court. 21. The learned counsel appearing for the appellant contended that when the respondents/plaintiffs have plead Ex.B.7 as a forged document, the man, who pleads forgery has to prove the same. According to the learned counsel for the appellant, the respondents/plaintiffs have raised the plea of forgery and hence, the burden of proof to prove the said alleged forgery squarely falls on the same and he has not discharged the said burden and hence, the same is liable to be set aside. According to the learned counsel for the appellant, the respondents/plaintiffs have raised the plea of forgery and hence, the burden of proof to prove the said alleged forgery squarely falls on the same and he has not discharged the said burden and hence, the same is liable to be set aside. In support of his submission, the learned counsel for the appellant relied upon the decision of this Court reported in 2010(1) CTC 652 (Mariammal and another Vs. P.Indirani and another) wherein, it is held that a person pleading forgery should establish such plea by cogent evidence as contemplated under Sections 101 to 103 of Indian Evidence Act. 22. The Lower Appellate Court has dealt with the same in detail. In the instant case, the respondents/plaintiffs have successfully pleaded that Ex.B.7-Power of Attorney is forged by impersonation of second plaintiff. In connection with the power of the Court in comparing the signature, the Hon'ble Apex Court in the decision (1) reported in (2003) 3 Supreme Court Cases 583 [Lalit Popli Vs. Canara Bank and others] has held as follows:- ".. under Sections 45 and 47 of the Evidence Act, the Court has to take a view on the opinion of others, whereas under Section 73 of the said Act, the Court by its own comparison of writings can form its opinion. Evidence of the identity of handwriting is dealt with in three Sections of the Evidence Act. They are Sections 45, 47 and 73. Both under Sections 45 and 47 the evidence is an opinion. In the former case it is by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experiences. In both the cases, the Court is required to satisfy itself by such means as are open to conclude that the opinion may be acted upon. Irrespective of an opinion of the Handwriting Expert, the Court can compare the admitted writing with disputed writing and come to its own independent conclusion. Such exercise of comparison is permissible under Section 73 of the Evidence Act." 23. Further, in the decision reported in (1980) 1 SCC 704 [Murari Lal Vs. State of M.P.], the Hon'ble Apex Court has held as follows:- "Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. Such exercise of comparison is permissible under Section 73 of the Evidence Act." 23. Further, in the decision reported in (1980) 1 SCC 704 [Murari Lal Vs. State of M.P.], the Hon'ble Apex Court has held as follows:- "Ordinarily, Sections 45 and 73 are complementary to each other. Evidence of Handwriting Expert need not be invariably corroborated. It is for the Court to decide whether to accept such an uncorroborated evidence or not. It is clear that even when experts' evidence is not there, Court has power to compare the writings and decide the matter." 24. The Lower Appellate Court relied upon the decision reported in 2005 (2) CTC 445 in the case of S.N.Vijayakumar Vs. S.R.Velusamy, wherein, while dealing with Section 73 of Indian Evidence Act, it is held that the trial Court can compare the signature found in disputed document with admitted signature and can come to independent conclusion based on such comparison and if the trial Court experiences any difficulty in coming to any conclusion, on such situation either of parties could take document to handwriting expert for comparison and opinion. Admittedly, the defendants have not taken any steps to refer the matter for expert opinion. The respondents/plaintiffs on their part to prove that Ex.B.7 is a forged one, they have demonstrated before the Court that the second plaintiff could not have executed the power of attorney in favour of the first defendant by placing reliance on the recitals of the document Ex.B.16. As state supra, since the first defendant has already executed a release deed in faovur of the second plaintiff under Ex.A.2, however the recitals are to the effect that it is a joint property of the first defendant and the second plaintiff and further, similar recitals were also incorporated in Ex.A.4-Sale Deed that is said to have based upon the power of attorney executed by the second plaintiff in favour of the first plaintiff. Furthermore, even in the written statement, the first defendant has not denied the release of his share of the property to the second plaintiff under Ex.A.2 and also, he has not denied the above said recital during the cross-examination assumes greater significance and hence, the circumstances to convey that Ex.B.16 could not be a true document has been clearly demonstrated by the plaintiff both by way of recitals as mentioned in Ex.B.16 and Ex.A.2 and Ex.A.4 and also the same has been confronted with D.W.1 and D.W.2, who have no answer in the cross-examination, have simply evaded to answer the same. 25. On combined reading of the recitals of the Ex.B.16, Ex.A.2 and Ex.A.4 coupled with the factum of evidence of D.W.1 and D.W.2, this Court is of the considered view that the respondents/plaintiffs have successfully discharged the initial burden upon their shoulder to demonstrate that Ex.B.16 is a forged document, in other words, they have demonstrated before the Court through the documentary evidence and also through the oral evidence of D.W.1 and D.W.2 in dislodging initial burden on their shoulder and hence, once they have discharged the initial burden, it is for the defendants to rebut the same. However, there is no acceptable evidence much less any evidence on the part of the appellant/second defendant to hold otherwise regarding the validity of the power of attorney. 26. The learned counsel for the appellant draw the attention of this Court to the evidence of D.W.4. D.W.4 is the attestor of Ex.B.16. Admittedly, original document was not produced before the Court and what was produced is only Ex.B.16 attested photograph of the document from the Sub-registrar. No paulsible explanation is forth coming from the second defendant for non-production of the original document before the Court. D.W.1 could depose in his evidence that he has handed over the original deeds to the second defendant-D.W.2. D.W.2 could say that in connection with the enquiry by the central Crime Branch, Chennai, the police have taken the originals. Had the said version is true, any normal prudent man could have approached the Court to get the original from the concerned police as alleged by him as per their version, because they are original document of title of their property. However, he could rather rely upon the notice Ex.B. 8 and Ex.B.9-returned cover with an endorsement as "insufficient address". Had the said version is true, any normal prudent man could have approached the Court to get the original from the concerned police as alleged by him as per their version, because they are original document of title of their property. However, he could rather rely upon the notice Ex.B. 8 and Ex.B.9-returned cover with an endorsement as "insufficient address". Mere issuance of notice to an insufficient address will not amount to sufficient steps taken for production of the original document. The Lower Appellate Court has drawn the adverse inference against the defendants which this Court finds hard to interfere with. Besides in view of the specific demonstration of the fact that Ex.B.16 could not be true and also non production of the original deeds and in the absence of any plausible explanation for non production of the document, the Lower Appellate Court has compared the signature found in Ex.A.3-Settlement Deed and Ex.B.16-General Power of Attorney, which is closure by one month. The Lower Appellate Court has found that both these documents are in contemporariness period and compared the signature as found in Ex.A. 3 and Ex.B.16 and came to a conclusion that the signature in Ex.B.16 is not that of the second plaintiff and held that Ex.B.16 is not a genuine document. Such a finding regarding signature in the disputed document is based upon the legal reasoning and on the lines of the dictum by this Court in 2005 (2) CTC 445 in the case of S.N.Vijayakumar Vs. S.R.Velusamy, and coupled with the recitals as discussed above, this Court is of the considered view that the approach adopted by the First Appellate Court cannot be said to be bad in law in deciding the deed of power of attorney as a forged one and the substantial question of law is answered in negative and held against the appellant/second defendant. 27. 27. In view of the discussion in the preceding paragraphs, this Court has come to a conclusion that the finding of the Lower Appellate Court that Ex.B.16 is a forged document cannot be interfered with and the other finding that secondary evidence cannot be accepted in view of the non-production of the original document, which is said to be in possession of the second defendant/appellant herein and the fact that Settlement Deed has been duly registered in the jurisdictional sub- Registrar office and since the power of attorney is found to be forged and not valid in law and hence, notice of revocation of power of attorney does not arise and hence, the order of the Lower Appellate Court is well considered and well merited which does not warrant any interference by this Court. Accordingly, the appeal is devoid of merits and the same is liable to be dismissed. 28. In the result, the second appeal is dismissed and the judgment and decree dated 29.11.2005 passed by the learned Principal District Judge, Tiruchirappalli, in A.S.No.101 of 2005, reversing the decree and judgment, dated 25.02.2005 passed by the learned Principal Sub Judge, Tiruchirappalli, in O.S.No.359 of 1993, is confirmed.