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2019 DIGILAW 3338 (MAD)

Saji P. Joy v. Saroja

2019-12-04

P.T.ASHA

body2019
JUDGMENT : P.T. Asha, J. 1. The plaintiffs, who have lost in both the Courts below, are the appellants before this Court. 2. The suit which is the subject matter of the present second appeal is O.S. No. 119 of 2010 filed by the plaintiffs originally before the District Judge, Kanyakumari at Nagercoil as O.S. No. 49 of 2009, which was later re-numbered as O.S. No. 119 of 2010 on the file of the Subordinate Judge, Padmanabhapuram. The suit has been filed for the following reliefs: "(a) For a declaration that the plaintiff is the lawful owner and having, title, possession and enjoyment over the plaint scheduled property. (b) For a permanent prohibitory injunction re straining the defendants 1 and 3 from making any encumbrance over the plaint scheduled property and restraining the 5th defendant from allowing or permitting the defendants 1 and 3 from causing any encumbrance over the same. (c) For a declaration that the attachment of plaint scheduled property on 07.02.1997 and 07.03.2007 in IA. No. 40 of 1997 in O.S. No. 15 of 1997 on the file of the Sub-Judge's Court, Padmanabhapuram is illegal, null and void and the subsequent proceedings of sale and issuance of sale certificate in E.P. No. 152 of 2004 of District Munsiffs Court in the said O.S. No. 15 of 1997 of Sub-Judge's Court, Padmanabhapuram and the delivery proceedings in E.A. No. 141 of 2008 in the said E.P. No. 152 of 2009 are null and void." 3. The facts in brief necessary to dispose of the above second appeal are narrated hereunder. The parties are referred to in the same status as in the trial Court. The plaintiffs' case: 4. The suit property admittedly belonged to one Devasahayam, who is the husband of the first defendant and father of the defendants 2 to 4 and on 23.11.1996, he had sold the suit property along with a small extent of land at Parasala to his brother Yesudhasan. The sale was registered at Parasala. By a registered sale deed dated 26.08.1999, the said Yesudhasan sold the property to the plaintiffs jointly. The plaintiffs have been put in possession and have been in enjoyment and possession of the suit property. 5. While so, on 29.11.2008, the first defendant and two others attempted to encroach into the suit property claiming that they have right over the same. The plaintiffs have been put in possession and have been in enjoyment and possession of the suit property. 5. While so, on 29.11.2008, the first defendant and two others attempted to encroach into the suit property claiming that they have right over the same. This constrained the plaintiffs to file a suit in O.S. No. 478 of 2008 on the file of the Principal District Munsif, Padmanabhapuram for a bare injunction against the first defendant and two others. It was only when the first defendant had filed the written statement contending that the suit property had been attached in a suit filed by the first defendant and her children against her husband for maintenance before the Subordinate Court, Padmanabhapuram that the plaintiffs have come to know about the proceedings in the suit O.S. No. 15 of 1997. None of these facts were known to them. In the written statement, it was further stated that the suit property was attached and brought to sale and in the sale that had been conducted to execute the decree in O.S. No. 15 of 1997, the first defendant had emerged the successful bidder. 6. Thereafter, the plaintiffs applied for registration copies of the proceedings and they came to learn that the suit property was attached on 11.01.1997 in IA No. 40 of 1997 in O.S. No. 15 of 1997 on the file of the Sub-Court, Padmanabhapuram. However, the property that was sought to be attached in R.S. No. 177 (old Survey No. 2818/11/8) was the property that was comprised in Thiruvattar village, which is not the village in which the suit property was situate. It appears that on 07.02.1997, an interim attachment was passed and on 07.03.1997, the first defendant's husband had submitted his objections, where he would contend that the property had been sold much prior to the suit and therefore, it could not be attached. However, the Court proceeded to make the order of attachment absolute and recorded the attachment on 10.04.1997. Ultimately, the suit was decreed on 16.04.2001 in favour of the first defendant and dismissed against the second defendant. Thereafter, the first defendant had filed E.P. No. 103 of 2001 to sell the property and this E.P. was ultimately dismissed as not pressed on 18.11.2003. Ultimately, the suit was decreed on 16.04.2001 in favour of the first defendant and dismissed against the second defendant. Thereafter, the first defendant had filed E.P. No. 103 of 2001 to sell the property and this E.P. was ultimately dismissed as not pressed on 18.11.2003. Thereafter, the first defendant had filed E.P. No. 152 of 2004 to sell 56.50 cents out of a total extent of 3 1/2 acres in R.S. No. 177 (R.S. No. 177/24). The property was sold on 14.11.2007 and the first defendant had herself purchased the property. The sale was confirmed by order dated 22.01.2008. E.A. No. 141 of 2008 was filed for delivery and on 25.08.2008, delivery was also taken. 7. The plaintiffs would submit that the delivery is only a paper delivery since the possession continued to be with the plaintiffs. 8. The plaintiffs would further contend that the first defendant was very much aware about the sale in favour of the plaintiffs as well as the predecessor in title Yesudhasan. In the written statement, the first defendant's husband informed the Court that he had sold the properties to his brother Yesudhasan, who in turn had sold it to plaintiffs herein and the sale deeds were marked as Ex. B4 to B6. 9. The first defendant had not chosen to implead the plaintiffs in the execution proceedings despite being informed about the sale in favour of Yesudhasan much prior to the suit in O.S. No. 15 of 1997 and thereafter, the sale in favour of the plaintiffs in the year 1999. Since the defendants once again attempted to interfere with the plaintiffs' possession on 24.03.2009, the instant suit came to be filed. Written Statement: 1. The first defendant had filed a written statement contending that the sale in favour of Yesudhasan was a fraudulent sale and any transfer thereafter was also fraudulent. She would further submit that the property had been attached and sold to the first defendant and therefore, the suit was liable to be dismissed. 2. Trial Court: 10. The learned Subordinate Judge, Padmanabhapuram, had framed six issues. One of the issues framed was whether the plaintiffs were entitled to a declaration to declare the attachment of the property and the subsequent sale in view of the decree in O.S. No. 15 of 1997 by the learned Subordinate Judge, Padmanabhapuram as null and void. 11. 2. Trial Court: 10. The learned Subordinate Judge, Padmanabhapuram, had framed six issues. One of the issues framed was whether the plaintiffs were entitled to a declaration to declare the attachment of the property and the subsequent sale in view of the decree in O.S. No. 15 of 1997 by the learned Subordinate Judge, Padmanabhapuram as null and void. 11. The power agent of the plaintiffs one Joy was examined as P.W. 1 and the first plaintiff was examined as P.W. 2. The plaintiffs have marked Exs. M to A29. On the side of the defendants, the first defendant examined herself as D.W. 1 and one Thankappan was examined as D.W. 2. No documents were marked on the side of the defendants. 12. The learned Subordinate Judge proceeded to hold that the sale in favour of Yesudhasan by the first defendant's husband was an invalid document and therefore, no rights would flow to the plaintiffs. 13. The learned Subordinate Judge has also held that the plaintiffs were not in possession of the suit properties since possession had been taken through Court proceedings and had also upheld the sale certificate in favour of the first defendant on the ground that the plaintiffs are not able to establish the fraud in obtaining the sale certificate by the first defendant. Appellate Court: 14. The said judgment and decree was taken up on appeal by the plaintiffs to the Principal District Judge, Kanyakumari in A.S. No. 8 of 2012. Along with the appeal, the appellants/plaintiffs had taken out two applications for receiving certain documents and for adducing evidence. The learned Principal District Judge, Kanyakumari in his judgment and decree dated 11.09.2018 was pleased to dismiss the appeal and the applications and had proceeded to confirm the judgment and decree of the trial Court. Second Appeal: 15. It is challenging the said judgment and decree, the plaintiffs are before this Court. 16. After hearing the elaborate arguments of the learned counsel appearing on either side, the following substantial questions of law arise for consideration in the above second appeal and the learned counsels have also addressed arguments on the same. "(a) Whether the Courts below are correct in law in non-suiting the plaintiffs without analysing as to whether the plaintiffs are the bona fide purchasers for value? "(a) Whether the Courts below are correct in law in non-suiting the plaintiffs without analysing as to whether the plaintiffs are the bona fide purchasers for value? (b) Whether the Courts below are correct in law in ignoring the findings rendered in the earlier suit in O.S. No. 15 of 1997 by the Sub-Court, Padmanabhapuram, to come to the conclusion that the sale executed by the first defend ant's husband in favour of his brother was to defraud the first defendant?; and (c) Whether the first defendant has committed fraud in obtaining the sale certificate in respect of the suit schedule property in the earlier proceedings in O.S. No. 15 of 1991? Submissions: 17. Ms. J. Anandhavalli, learned counsel appearing for the appellants would contend that the Courts below have failed to appreciate that the plaintiffs are bona fide purchasers for value. They had in good faith purchased the property from Yesudhasan under a registered sale deed dated 26.08.1999. In the earlier proceedings, the first defendant's husband has brought it to the notice of the first defendant that a portion of the property in Thirparappu village had been alienated by him to his brother much prior to the suit for maintenance being filed by his wife. Thereafter, the property has been sold to the plaintiffs. At the time when the property was sold to Yesudhasan, there was no order of attachment and considering the fact that the property had been sold prior to the suit, the order of attachment obtained by the first defendant in I.A. No. 40 of 1997 would not be binding on the said Yesudhasan and thereafter upon the plaintiffs, who had purchased the property from the said Yesudhasan. She would further argue that a perusal of the order of attachment would clearly indicate that the property which had been attached was the property comprised in Survey No. 177/34 of Thiruvattar village, which is clearly evident from a perusal of Ex. A21. She would contend that the suit property is an extent of 1 acre and 75 cents comprised in Survey No. 177/24 and 177/26 Old Survey No. 2818/11/8 of Thirparappu Village. Therefore, the property that has been attached is not the property, which is the subject matter of the present suit. A21. She would contend that the suit property is an extent of 1 acre and 75 cents comprised in Survey No. 177/24 and 177/26 Old Survey No. 2818/11/8 of Thirparappu Village. Therefore, the property that has been attached is not the property, which is the subject matter of the present suit. The learned counsel would draw the attention of this Court to the attachment order that had been effected by Tom-Tom, which once again describes the property only as the extent of 3 ]A acres situate in Thiruvattar village in R.S. No. 177/34 and 177/21. The Bailiff report would also show that Tom-Tom has been made only in Thiruvattar village and not at Thirparappu village. It is only in the execution proceedings that the first defendant has substituted the name of the village as Thirparappu instead of Thiruvattar. However, no application for amendment has been filed and the first defendant as D.W. 1 is also not able to state as to how in the execution proceedings, the description of property had undergone the change. She would therefore contend that the first defendant had no right to bring the property to sell without impleading the plaintiffs and Yesudhasan particularly when in the suit O.S. No. 15 of 1997, the sale in favour of the plaintiffs and Yesudhasan has been brought to the notice of the first defendant by filing Exs. B4 to B6. She would therefore contend that the sale effected in favour of the first defendant on 22.01.2008 is not binding on the plaintiffs, who have purchased the property as early as in the year 1999. She would also contend that the sale certificate was only with reference to Item No. 2 of the attachment schedule, which is not the suit schedule property. She would contend that in the suit in O.S. No. 15 of 1997, the first defendant has not obtained any charge over the suit property. She would therefore submit that the judgment and decree of the Courts below is perverse and is liable to be reversed particularly when the plaintiffs have been able to prove that they are bona fide purchasers for value and the property in respect of which the first defendant had obtained an attachment was not the suit property. 18. She would therefore submit that the judgment and decree of the Courts below is perverse and is liable to be reversed particularly when the plaintiffs have been able to prove that they are bona fide purchasers for value and the property in respect of which the first defendant had obtained an attachment was not the suit property. 18. The learned counsel for the appellants would rely on the judgment reported in 2011 (1) CTC 694 (Gopi and another vs. H. David and two others) to canvass the argument that unless the first defendant was able to prove the collusion and fraud that was practised in getting the document registered in another place, the document cannot be declared as invalid document. 19. Per contra, Mr. V.M. Balamohanthambi, learned counsel appearing on behalf of the first defendant would put forward the following contentions: (a) That Ex. A5 has been registered at Parasala, where the first defendant's husband had no property. He would therefore contend that the sale which is not registered in the jurisdictional Sub-Registrar's office, was void. In support of the above contention, the learned counsel would submit the judgments reported in 1988 (1) MLJ 441 (M. Mohamed Kassim and Others vs. C. Rajaram and others), 2003 (I) CTC 539 (M. Manoharadhas vs. C. Arumughaperumal Pillai and another) and 2008 (3) TLNJ 170 (G. Selrin vs. Uchimalai). (b) The sale in favour of Yesudhasan was only to defeat the right of the first defendant and was therefore not a valid sale. In support of the said argument, the learned counsel would rely on the following judgments in AIR 1991 Kerala 306 (Ramankutty Purushothaman and another vs. Amminikutty and Others) and AIR 2004 Andhra Pradesh 317 (C. Yemuna and another vs. P. Manohara). (c) The learned counsel would further submit that though the survey number has been wrongly given, once the identity of the properties can be verified by considering the four boundaries, the attachment order and the subsequent sale is valid. The same cannot be called in question on the ground that the survey number is different. To support this contentions, he has relied on the judgments reported in AIR 1963 SC 1879 (Sheodhyan Singh and others vs. Mst. Sanichar a Kuer and Others), 1988-2-LW 234 (Srideri vs. M. Natesan & Another) as also AIR 1989 Kerala 251 (Gopalkrishna Kammath vs. R. Bhaskar Rao). 20. To support this contentions, he has relied on the judgments reported in AIR 1963 SC 1879 (Sheodhyan Singh and others vs. Mst. Sanichar a Kuer and Others), 1988-2-LW 234 (Srideri vs. M. Natesan & Another) as also AIR 1989 Kerala 251 (Gopalkrishna Kammath vs. R. Bhaskar Rao). 20. He would further argue that the sale in favour of Yesudhasan though made prior to the filing of the suit for maintenance, the wife is entitled to enforce the right of maintenance against the suit property. He would rely on the judgment reported in 1919 (1) MLJ 172 (Raghavan and another vs. Nagammal alias Nagabushnammal and another. 21. He would therefore submit that the attachment order obtained in the earlier proceedings in O.S. No. 15 of 1997 and subsequent sale was binding on not only the first defendant's husband, but also on the subsequent purchasers and therefore, the Courts below have rightly dismissed the suit. 22. Heard the learned counsel appearing on either side and perused the papers. Discussion: 23. The entire crux of this dispute rests on the factum that the first defendant had obtained an order of attachment in respect of the property, which is the subject matter of the suit in O.S. No. 119 of 2010 on the file of the Subordinate Judge, Padmanabhapuram. In order to verify the above, it is necessary to peruse the description of the property, which has been given by the first defendant in I.A. No. 40 of 1997 in O.S. No. 15 of 1997 seeking attachment before judgment. The description of property is as follows: 24. Therefore, it is clear that an attachment had been sought for in respect of the property the first of which is comprised in R.S. No. 177 (old Survey No. 2818/11/8) of Thiruvattar Village. The property is described as measuring an extent of 3 1/2 acres with four boundaries. The second item of property, which is the subject matter of attachment is an extent of 10 cents of house site comprised in R.S. No. 394/4 Old No. 5/35 of the very same village. The bailiff report notifying the attachment would clearly indicate that the notification has been published in Thiruvattar village and in respect of the property comprised in R.S. No. 177 and R.S. No. 394/4 of the said village. The bailiff report notifying the attachment would clearly indicate that the notification has been published in Thiruvattar village and in respect of the property comprised in R.S. No. 177 and R.S. No. 394/4 of the said village. It is only when the execution proceedings have been initiated by the first defendant that for the first time, in the description of property, the first defendant had introduced the village name as Thirparappu and the Re-Survey No. 177/24. However, the sale certificate would indicate that item No. 2 of the schedule of property in the attachment order is the subject matter of the sale, which would indicate that the sale was in respect of R.S. No. 394/4. However, in the schedule of property, the property described is the first item in the attachment schedule. The first defendant has not been able to explain these anomalies and she has not been able to explain as to how the amendment of the village name had taken place and she has not produced any orders of Court permitting the amendment. Therefore, it is clearly evident that a fraud has been played on the Court in the execution proceedings. Despite the plaintiffs taking out this argument in the plaint in O.S. No. 119 of 2010, there is no satisfactory explanation on the side of the first defendant. The Courts below have also not given any finding on this especially when the elaborate pleadings and evidence has been let in by the plaintiffs. 25. The judgments that have been relied on the side of the defendants that the boundaries would prevail, is applicable only in the case where the village is the same and survey number is the same. In the instant case, the name of the village described in the attachment petition and the attachment report is only Thiruvattar village and the survey number is 177. The attachment has been notified to the general public by Tom-Tom only at Thiruvattar and not at the Thirparappu village. Therefore, the question of law No. 3 is answered against the defendants. 26. In the earlier suit in O.S. No. 15 of 1997, the first defendant has taken the very same defence that has been taken in the present suit namely that her husband has sold the property to his brother only with a view to remove the property from reaching of the first defendant. 26. In the earlier suit in O.S. No. 15 of 1997, the first defendant has taken the very same defence that has been taken in the present suit namely that her husband has sold the property to his brother only with a view to remove the property from reaching of the first defendant. The learned Subordinate Judge in his judgment in O.S. No. 15 of 1997 dated 16.04.2001 has clearly held that there is no attachment and that the sale was not with a view to defraud the plaintiffs. The learned Subordinate Judge has upheld the sale in favour of the said Yesudhasan and the plaintiffs herein and there is no appeal against the said findings. The learned Judge has observed as follows: IMAGE 27. The learned Subordinate Judge, in the earlier suit in O.S. No. 15 of 1997 has clearly held that the sale in favour of the plaintiffs herein is valid. Since the first defendant has not challenged the said order, the findings in the said suit is binding upon her. Once the first defendant has not been able to establish any fraud that has been committed by her husband and his brother Yesudhasan in the execution of Ex. A5 sale deed, the said document cannot be held to be a void or invalid document as held by this Court in the judgment reported in 2011 (1) CTC 694 (cited supra). 28. Further, despite having knowledge about the fact that the suit property has been sold to Yesudhasan and thereafter to the plaintiffs, the first defendant has deliberately omitted to implead them as respondents in the execution proceedings, which has been initiated much later. Thus once again expose the fraud and the clandestine method that has been adopted by the first defendant. The findings in the earlier suit in O.S. No. 15 of 1997 is binding upon the first defendant she having not chosen to challenge the same. 29. Therefore, this Court is of the opinion that the Courts below have totally failed to apply its mind to the above argument advanced by the plaintiffs. The narration of events would clearly show that the plaintiffs are bona fide purchasers for value. The first defendant has not been able to show any proof to show that the plaintiffs had prior knowledge about the suit for maintenance filed by the first defendant and thereafter, they had purchased the property. The narration of events would clearly show that the plaintiffs are bona fide purchasers for value. The first defendant has not been able to show any proof to show that the plaintiffs had prior knowledge about the suit for maintenance filed by the first defendant and thereafter, they had purchased the property. Further, the first defendant had filed the suit in O.S. No. 15 of 1997 seeking a charge over the properties of her husband, however, the Court below taking into account the fact that the properties have changed hands, have declined to pass a decree imposing a charge on the property. 30. The learned Subordinate Judge in the earlier proceedings was conscious about all these facts and this coupled with the fact that in the earlier round of litigation, the sale in favour of the plaintiffs herein have been held to be valid, this Court is of the view that the Courts below ought to have decreed the suit as prayed for. 31. In the result, the second appeal is allowed and the judgment and decree of the Courts below are set aside. There shall be no order as to costs. Consequently, connected miscellaneous petition is also closed.