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2025 DIGILAW 368 (MAD)

Sundaramoorthy v. Muthusamy

2025-01-20

R.N.MANJULA

body2025
JUDGMENT : R.N.Manjula, J. The first defendant is the appellant. The suit has been filed by the plaintiff for declaration and permanent injunction in respect of the suit schedules 'A', 'B' and 'C' along with future damages and recovery of possession in favour of the second plaintiff. 2. The trial Court has decreed the suit as prayed for. The defendants 1 to 4 have filed their counter-claim in respect of 'C' Schedule property and the same has been dismissed. The plaintiffs are required to file a separate petition to claim the future damages. The appeal preferred by the first defendant before the first appellate Court was also by confirming the judgment and decree of the trial Court. Now the first defendant has filed the second appeal by challenging the judgment of the first appellate Court. 3. The short facts pleaded in the plaint by the plaintiffs in brief:- The plaintiffs 1 and 3 are the sons of one Nataraja Mudaliar through his legally wedded wife Pattu Ammal. The second plaintiff is the daughter of the first plaintiff. The Nataraja Mudaliar has been living with one Dhanalakshmi by having physical relationship outside of his marriage and the first defendant is the son born through the Dhanalakshmi. The second defendant is the younger brother of the plaintiff's mother Pattu Ammal. 3.2. The property in Survey No. 123/B/1 measuring 36 feet East to West and 96 feet South to North in Kumarappanaickenpettai belonged to the Nataraja Mudaliar. The suit property has been set out in three schedules under 'A', 'B' and 'C'. The Nataraja Mudaliar has executed a mortgage deed on 26.10.1957 in favour of one Chidambara Chettiar for raising money to celebrate the marriage of his daughter. He was also cultivating some agricultural lands which belonged to one Devanathaswamy Devasthanam, Thiruvahindrapuram under an agreement of lease. The Devasthanam has obtained a decree in S.C. No.99/1957 on the file of the District Munsif's Court, Cuddalore for arrears of lease. 3.3. As Nataraja Mudaliar had incurred heavy debts due to his improper way of living. He apprehended that the house site, i.e., the suit property would be lost to his creditors and hence, he created a sham and nominal sale deed dated in favour of the second defendant dated 04.01.1970. No transfer of title had taken place in pursuant to the said sale deed. He apprehended that the house site, i.e., the suit property would be lost to his creditors and hence, he created a sham and nominal sale deed dated in favour of the second defendant dated 04.01.1970. No transfer of title had taken place in pursuant to the said sale deed. Though the recitals of the sale deed states to discharge an existing mortgage, the second defendant did not discharge the same and the debt has been discharged only by the plaintiffs. The possession was also never handed over to the second defendant and it continued to be in possession of Nataraja Mudaliar. The plaintiffs and their predecessors are therefore prescribed title to the property and they continued to be in possession. To avoid the claim in the suit property either by the second plaintiff or any other person claiming under him a panchayat was convened on 06.03.1981. In the said panchayat, the second defendant has admitted that the sale deed dated 04.01.1970 was a sham and nominal one. The terms of the panchayat was reduced to writing and signed by Nataraja Mudaliar and the second defendant and it has been attested by the panchayatdars. 3.4. Later Nataraja Mudaliar bequeathed his properties into three schedules, viz., 'A' to 'C' schedules to the plaintiffs respectively by executing a Will dated 20.04.1981 and that was the last Will of the Nataraja Mudaliar and the same was executed when he was in sound state of mind. The Nataraja Mudaliar died on 25.12.1983 and the Will has taken effect. In the Will, the testator has stated that he had already benefited his son through Dhanalakshmi by purchasing the house site in Kumarappanaickenpettai village in their names. 3.5. After the demise of the Nataraja Mudaliar, the first plaintiff took the western moiety of the property, which is shown as 'A' schedule in the plaint. The portion of the property enjoyed by the Nataraja Mudaliar has been shown in the 'B' schedule property. The third plaintiff was residing in a portion of the 'B' schedule property, which is described as 'C' schedule. While dividing the property into the three schedules a common passage was provided in the centre of the property. After the life time of Nataraja Mudaliar, the first defendant sought the permission of the plaintiffs 1 and 2 to accommodate his weaving shed in the 'B' schedule property. 3.6. While dividing the property into the three schedules a common passage was provided in the centre of the property. After the life time of Nataraja Mudaliar, the first defendant sought the permission of the plaintiffs 1 and 2 to accommodate his weaving shed in the 'B' schedule property. 3.6. The first defendant sought the permission of the first and second plaintiffs, stating that he wanted to accommodate his weaving shed in the 'B' schedule property. The first defendant by taking advantage of the old age of the second defendant and had obtained a sale deed on 18.05.1992 fraudulently in respect of the eastern moiety, viz., 'B' and 'C' schedules from the second defendant. The second defendant cannot execute the sale deed as he had already signed the settlement in the presence of panchatdars in respect of the earlier sale deed dated 04.01.1970. 3.7. The plaintiffs came to know about the sale deed of the year 1992 executed by the first defendant in favour of the second defendant, only when the first defendant demanded the third plaintiff to vacate and give possession of the 'C' schedule property. Hence, the plaintiff has filed the suit for the relief of declaration of title in respect of 'A' and 'B' and 'C' schedule properties as against the first, second and third plaintiffs respectively and handed over the possession along with permanent injunction and future damages. During the pendency of the suit, the second defendant died and his legal heirs viz., his wife and son have been impleaded as third and fourth defendants. 4. The fourth defendant has contested the suit by filing the following written-statement:- The suit property is the absolute property of one Kunji Mudaliyar (second defendant) through a sale deed dated 04.01.1970. Neither the plaintiffs nor the predecessors have any title in respect of the property after the sale. The second defendant had taken possession of the suit property immediately after the execution of the sale deed dated 04.01.1970. There is no deed of agreement has been executed by the first defendant as alleged in the plaint. 4.2. The second defendant had executed a sale deed in favour of the first defendant on 18.05.1992 for a valid consideration and thus, the first defendant has obtained right in respect of the property subjected to sale. Prior to that, the first defendant was in permissive possession of the properties. 4.2. The second defendant had executed a sale deed in favour of the first defendant on 18.05.1992 for a valid consideration and thus, the first defendant has obtained right in respect of the property subjected to sale. Prior to that, the first defendant was in permissive possession of the properties. The mortgage mentioned in the sale deed dated 04.01.1970 has been discharged by the second defendant and the receipts issued in this regard dated 11.02.1970 has been produced as Ex.A6. 4.3. The property prescribed in the 'A' schedule property is in permissive occupation of the first plaintiff. After the demise of the second defendant, the fourth defendant has inherited the same as his legal heirs. As the permission granted in favour of the plaintiffs has been revoked he has to hand over possession. The fourth defendant has also filed a counter-claim by seeking a recovery of possession from the first plaintiff as the permission given to the first plaintiff has been revoked. 4.4. The reply statement filed by the second plaintiff and adopted by first and the second respondents are one and the same. The first defendant was never in possession of the suit property and the third plaintiff's possession in the suit property was not on permission alleged to be given by the second defendant. The first defendant is residing in the 'B' schedule property with the permission of the plaintiffs 1 and 2 and he has to vacate on demand. 5. The reply statement of the first plaintiff adopted by the other plaintiffs to the counter-statement in brief as under:- The claim of the fourth defendant is false. The plaintiffs are the absolute owners of the suit 'A', 'B' and 'C' schedule properties. The suit has been filed in the year 1993 and the fourth defendant has been impleaded as legal representatives of the second defendant as early as in the year 1995 itself and hence, the counter claim filed in the year 2009 has been barred by limitation. The second defendant who is the father of the fourth defendant has filed his written-statement but he has not stated anything in his written-statement about the alleged permissive possession. 6. On the basis of the above pleadings, the following issues have been framed on 29.08.1994:- “(1) Whether the first plaintiff is entitled to relief in respect of Schedule 'A' property and relief in default of trust? 6. On the basis of the above pleadings, the following issues have been framed on 29.08.1994:- “(1) Whether the first plaintiff is entitled to relief in respect of Schedule 'A' property and relief in default of trust? (2) Whether the second plaintiff is entitled to relief of disclosure of property and relief of property in respect of 'B' schedule properties? (3) Whether the third plaintiff is entitled to the relief of disclosure of assets and the relief of permanent trust in respect of the 'C' schedule properties? (4) Is it true that the sale deed written by Nataraja Mudaliar in the name of the second respondent on 04.01.1970 was nominally executed? (5) Whether the deed dated 18.05.1992 written by the second respondent in the name of the first respondent is genuine? (6) Whether the Will purportedly executed on 20.04.1981 to Nataraja Mudaliar is genuine? Or is it connected? (7) Whether the first defendant is entitled to liquidated damages and liquidated damages in respect of the property claimed in his statement of counterclaim? (8) Whether the cause of action stated in this case is correct?” On 30.08.2005:- (1) Whether the 'WILL' dated 20.04.1981 is true and valid in law? (2) Whether the sale deed dated 04.01.1970 is a sham and nominal sale by Nataraja Mudaliar in favour of second defendant? (3) Whether the sale deed dated 18.05.1992 by the second defendant in favour of first defendant is true and valid in law? (4) Whether first defendant mother Dhanalakshmi is legally wedded wife of Nataraja Mudaliar? (5) Whether the plaintiffs are entitled to the reliefs prayed for? (6) Whether the first defendant is entitled to the relief of declaration of title to the schedule property and delivery of vacant possession of the same? (7) To what relief the parties are entitled to? and Additional Issues were framed:- (1) Whether the fourth defendant is the absolute owner of the suit properties? (2) Whether the fourth defendant is entitled for the reliefs as prayed for in the counter-claim regarding the 'A' schedule property?” 7. During the course of the trial, on the side of the plaintiff, four witnesses have been examined as PW1 to PW4 and Exs.A1 to A22 were marked and on the side of the defendants, three witnesses have been examined as DW1 to DW3 and Exs.B1 to B14 were marked. 8. During the course of the trial, on the side of the plaintiff, four witnesses have been examined as PW1 to PW4 and Exs.A1 to A22 were marked and on the side of the defendants, three witnesses have been examined as DW1 to DW3 and Exs.B1 to B14 were marked. 8. At the conclusion of the Trial and on considering the materials available on record, the Trial Court has decreed the suit in favour of the plaintiffs as prayed for and dismissed the counter-claim filed by the defendants 1 and 2. The first appeal preferred by the first defendant in A.S. No. 35 of 2011 challenging the judgment and decree of the Trial Court before the First Appellate Court has also got dismissed by confirming the judgment and decree of the Trial Court. Aggrieved over the same, the first defendant has filed this Second Appeal and the same has been admitted on the following substantial questions of law:- “1. Whether declarative relief could be granted based on the receipt obtained from the Devasthanam, thiruvandipuram, Cuddalore? 2. Whether merely because the payment was made in the name of the first plaintiff the Courts below grant ownerships? 3. Whether registered sale deed can be set aside by way of subsequent mutual agreement?” 9. The learned counsel for the appellant has submitted that even without prayer for declaration in respect of the sale deed dated 04.01.1970 (Ex.A5), the trial Court has granted the relief that the above sale deed is null and void. Even when the suit was filed in the year 1993, the sale deed in favour of the first defendant dated 18.05.1992 (Ex.A9) has not been challenged. The suit has been decreed only on the basis of the alleged panchayat settlement (Exs.A7 and A8) and the Will dated 20.04.1981 Ex.A9. The second defendant who is in the habit of affixing thumb impression is seen to have affixed his signature in Ex.A7 agreement and that will show Ex.A7 is a false document. In 1992 where the second defendant executed a sale deed in favour of the first defendant also, the second defendant has affixed his thumb impression and not signature. The second defendant who is in the habit of affixing thumb impression is seen to have affixed his signature in Ex.A7 agreement and that will show Ex.A7 is a false document. In 1992 where the second defendant executed a sale deed in favour of the first defendant also, the second defendant has affixed his thumb impression and not signature. The second defendant's son's school leaving certificate, which contains the thumb impression of the second defendant would only show that he has been in the habit of affixing his thumb impression and as found in Ex.A12 agreement of marriage of his first son would also show that he is in the habit of affixing only his thumb impression and not the signature. 10. Ex.A7 panchayat settlement is a concocted document created just for the purpose of the suit. Both the trial Court and the first appellate Court have placed much reliance on Ex.A7 which genuineness has not been proved. The son of the second defendant, who is impleaded as fourth defendant has been examined as PW3 and he has stated in his evidence that his father was in the habit of affixing thumb impression. The mortgage discharge receipt Ex.A4 has been given in the name of the first plaintiff because his father was the mortgagor and that alone cannot be the reason for granting the relief of declaration in favour of the plaintiffs. Ex.A6 is issued by the Devasthanam for the lease amount arrears paid by the first plaintiff and that cannot also ensure the title of the plaintiffs over the suit property. 11. The respondent cited Ex.A5 sale deed dated 04.01.1970 executed by the Nataraja Muthaliar in favour of the second defendant, in which the consideration is shown to be the pending lease arrears to be payable to the Devasthanam by the Nataraja Mudaliar and also the mortgage deed in favour of the Chidambaram Chettiar. Despite the recitals in the sale deed has got as above, the second defendant did not discharge the above dues and it is the first plaintiff who had discharged it later. Even the original sale deed in respect of the suit property is also in possession of the plaintiffs and that would only show that the sale deed dated 04.01.1970 is a sham and nominal one. 12. Even the original sale deed in respect of the suit property is also in possession of the plaintiffs and that would only show that the sale deed dated 04.01.1970 is a sham and nominal one. 12. Even though the defendants have taken a stand that the sale deed would have stolen by the first plaintiff no action has been initiated on that score against the first plaintiff. There is no document to show that the mutation of revenue records have been taken effect subsequent to the sale deed Ex.A5 dated 04.01.1970. In Ex.A2 Promisory note the second defendant has affixed his signature as witness and that would show that he is also in the habit of affixing his signature. PW4 has stood as a witness for both Ex.A4 panchayat settlement and Ex.A8 Will. As stated in his evidence the second defendant was in the habit of affixing his signature and hence, the signature in Ex.A7 need not be doubted. Ex.A5 is a sale deed which is not supported by consideration and hence, it is not valid and through which title could not pass in favour of the second defendant. The second defendant did not have any title and hence, he could not execute any sale deed dated 18.05.1992 in favour of the first defendant and hence, the judgment of the trial Court and the first appellate Court have to be confirmed. Accepting the averments in the pleadings that the second defendant has discharged the mortgage loan and the lease arrears, no materials have been produced to show that the second defendant had discharged the same. Once the consideration is not passed, the sale deed would become void and there is no necessity to seek the relief that the said sale deed is null and void. Reliance was placed on the judgment of the Hon’ble Supreme Court in Kewal Krishan -vs- Rajesh Kumar reported in 2022 18 SCC 489 . 13. The fact that the suit property was originally belongs to the Nataraja Mudaliar who is the father of the plaintiffs 1 to 3 is not in the suit. The Nataraja Mudaliar has executed a sale deed on 04.01.1970 in favour of the second defendant, which according to the plaintiffs was a sham and nominal sale and it has not yet been acted upon. 14. The Nataraja Mudaliar has executed a sale deed on 04.01.1970 in favour of the second defendant, which according to the plaintiffs was a sham and nominal sale and it has not yet been acted upon. 14. However, the defendants claim that the second defendant had acquired title by virtue of Ex.A5 Sale deed dated 04.01.1970 and he had passed on the title in favour of the first defendant by virtue of the sale deed dated 18.05.1992 which is marked as Ex.A9. The Courts below got convinced that the sale deed Ex.A5 dated 04.01.1970 was a sham and nominal document and hence, the second defendant is estopped from executing a sale deed in favour of the first defendant vide Ex.A9 and that will not convey any title in favour of the first defendant. 15. The reliance was also placed upon the panchayat held in the year 1981, wherein a settlement was arrived on 06.03.1981 (Ex.A7) and that has put an end to the sale deed dated 04.01.1970. 16. The categorical contention of the appellant is that the sale deed had been executed by the father of the first plaintiff, Nataraja Mudaliar in favour of the second defendant. The first defendant cannot deny the title of the second defendant even without challenging the sale deed dated 04.01.1970 by seeking a declaration that it is null and void. 17. It is the further contention of the appellant that the validity of the sale deed cannot be nullified by virtue of the settlement Ex.A7 which is alleged to have been executed in favour of the second defendant in the presence of the panchayatdars. The sum and substance of the contention of the appellant is that the Ex.A7 settlement is a forged document created for the purpose of this case and that will not preclude the second defendant from acquiring title in pursuant to the Ex.A5 and thereafter, pass it on to the first defendant through Ex.A9. 18. Per contra, the learned counsel for the respondents submitted that the obligations that were placed on the purchaser through Ex.A5 sale deed has not been executed and hence, the sale deed itself is not supported by consideration and it has become void. 19. On examination of Ex.A5, it is seen that the consideration for the said sale deed is the discharge of 2 liabilities of the vendor, viz., Nataraja Mudaliar. 19. On examination of Ex.A5, it is seen that the consideration for the said sale deed is the discharge of 2 liabilities of the vendor, viz., Nataraja Mudaliar. It appears that the Nataraja Mudaliar has arrears of lease amount payable to the Devasthanam in respect of the properties, which were in his enjoyment through a lease obtained from the Devasthanam. As he had rental arrears payable to the Devasthanam in pursuant to the lease in the recitals of Ex.A5 sale deed, it is stated that the purchaser has to discharge Rs.300/- towards the lease arrears and Rs.200/- towards the mortgage amount pending in respect of the suit properties or the mortgage executed on 26.10.1957 in favour of one Chidambaram Chettiar. 20. It is the contention of the plaintiffs that the said commitments were not done by the purchaser and hence, the sale consideration has not been passed in favour of the vendor and hence, the whole sale deed itself is a void one. Admittedly, the sale consideration for the above sale deed is the lease arrears to be payable by the vendor along with the mortgage amount to be settled in favour of the Chidambaram Chettiar. In usual course when the discharge of any existing debts of the vendor is agreed as sale consideration, the vendor would discharge the same even before the execution of the sale deed and the recitals of the sale deed would contain a statement saying that those dues have been discharged and that is served as sale consideration for the sale deed. Strangely, in the sale deed executed as Ex.A5, it appears to be a commitment agreed by the purchaser to be settled at a future point of time and to treat the same as the sale consideration. It appears that an agreement to sell has taken the shape of the sale deed even before the sale consideration has been passed in favour of the vendor. Now it has to be examined whether the purchaser had settled the sale consideration atleast after the sale deed was executed, in the strict sense of the 'sale' defined under Section 54 of the Transfer of Property Act. In the said ‘sale’ there is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Now it has to be examined whether the purchaser had settled the sale consideration atleast after the sale deed was executed, in the strict sense of the 'sale' defined under Section 54 of the Transfer of Property Act. In the said ‘sale’ there is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. In the instant case it is the consideration which is promised to be paid and not paid at the time when the sale deed was executed. With regard to the above point, there cannot be any disagreement on the part of the appellant, because Ex.A5 has an explicit reference on this aspect. 21. Even though the sale deed has been executed even before the passing of the sale consideration, it has to be seen whether the title will be transferred in favour of the purchaser before he pays the price promised to be paid. As per Section 55(3) of the Transfer of Property Act the seller is bound to deliver to the buyer all documents relating to title if the property subjected to the sale has been sold in entirety, once the whole of the purchase money has been paid. Insofar as the buyer is concerned, he has an obligation under sub-Section (b) of Section 55(5) of the Transfer of Property Act to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person, as he directs. However, such condition has to be complied only if the property is sold free from encumbrance. In case of any encumbrance, the buyer may retain the purchase-money equivalent to the amount payable towards discharge of any encumbrance which existed on the date of the sale and to pay the amount so retained to the persons who is entitled to receive the same. 22. The learned counsel for the appellant /plaintiffs submitted that the purchaser viz., the second defendant has fulfilled the obligation of paying the lease arrears on 11.02.1970 and for which Ex.A6 receipt has been produced. Ex. A6 receipt is seen to be issued in the name of the first plaintiff and not in the name of the second defendant. 22. The learned counsel for the appellant /plaintiffs submitted that the purchaser viz., the second defendant has fulfilled the obligation of paying the lease arrears on 11.02.1970 and for which Ex.A6 receipt has been produced. Ex. A6 receipt is seen to be issued in the name of the first plaintiff and not in the name of the second defendant. It is right for the appellant to contend that the receipts of such nature would be issued only in the name of the lease holder, though the payments have been made by a third party. 23. In the instant case, the receipt has not only been passed in the name of the first plaintiff, but the original receipt itself has been given and retained by the first plaintiff himself and it has been produced as Ex.A6 during the trial Court. Insofar as the other mortgage due is concerned it pertains to the mortgage deed executed in favour of the Chidambaram Chettiar on 26.10.1957 and discharged only on 20.08.1997 and the mortgage discharge receipt was marked as Ex.A4. 24. According to the plaintiffs, the first plaintiff has made the payments towards the mortgage dues and the original mortgage deed as well as the endorsement towards discharge has been made by the mortgagor to the effect that the dues have been paid by the first plaintiff. From the above acknowledgment found in Ex.A4, it is clear that the said mortgage has been discharged by the first plaintiff and the mortgage deed Ex.A1 has also been returned by him. 25. To be noted, the first plaintiff has returned even the original sale deed dated 04.01.1970 and hence, it is claimed that at no point of time, the sale deed executed has been acted upon and the second defendant has been placed in possession of the suit property. 26. Though it is contended by the appellant that the plaintiffs have failed to seek the relief of declaration about the validity of the sale deed dated 04.01.1970 (Ex.A5) and other sale deed dated 18.05.1992 (Ex.A9), the burden is on the claimant to prove that the title has been passed in his favour by virtue of Ex.A5. 26. Though it is contended by the appellant that the plaintiffs have failed to seek the relief of declaration about the validity of the sale deed dated 04.01.1970 (Ex.A5) and other sale deed dated 18.05.1992 (Ex.A9), the burden is on the claimant to prove that the title has been passed in his favour by virtue of Ex.A5. Insofar as the plaintiffs are concerned, they have discharged their burden by showing that the original title deeds of the suit property including the sale deed dated 04.01.1970 were in possession of the plaintiffs and that the mortgage loan has also been discharged by the first plaintiff. By producing these evidences including the production of the original mortgage deed Ex.A1, the plaintiff has discharged their initial burden to show that the sale deed Ex.A5 has not been acted upon. 27. In that case, the burden would shift upon the second defendant to prove that the sale deed has been acted upon and it would bind the plaintiffs and that he has been put in possession of the suit property immediately after the execution of the above sale deed Ex.A5. The revenue records continued to stand in the name of the Nataraja Mudaliar until and after the suit was filed and at no point of time conversion had taken place in favour of the second defendant. Nataraja Mudaliar is also not expected to hand over the original title deeds to the second defendant before he fulfilled the obligation of discharging the liabilities of the Nataraja Mudaliar as mentioned in the sale deed. 28. None of the title deeds or the parent documents or the mortgage deed pertaining to the said property had been handed over to the second defendant at the time when the Ex.A5 sale deed has been executed. It is re- iterated that the very sale deed dated 04.01.1970 has also been given to the custody of the second defendant and that would only show that the sale deed has not been acted upon at any point of time. 29. One contentious point raised by the appellant is that the subsequent settlement which is marked as Ex.A7 dated 06.03.1981 is a concocted document, and it has been created for the purpose of the suit. 29. One contentious point raised by the appellant is that the subsequent settlement which is marked as Ex.A7 dated 06.03.1981 is a concocted document, and it has been created for the purpose of the suit. Ex.A7 is the panchayat document of settlement executed by the second defendant and Nataraja Mudaliar in pursuant to the panchayat held in respect of the suit property and by virtue of that also, the sale deed dated 04.01.1970 would become void. 30. The validity of a document, viz., a sale deed cannot be rendered as invalid just by virtue of an another agreement in a panchayat arrangement made between the seller and the purchaser. But here is a situation where the purchaser could not prove before the Court that the sale deed has been connected and he has been put in possession and he has settled the entire sale consideration as per the recitals of the sale deed. Even without the existence of the Ex.A7 the very nature of the evidence, which is produced before the Court on the side of the plaintiffs would only show the sale deed Ex.A5 has not been acted upon. 31. Much stress has been made on the signature of the second defendant made on Ex.A7. It is claimed by the appellant that the second defendant was not in the habit of affixing signature and he was in the habit of affixing thumb impression and hence, the Ex.A8 itself is a false document. As stated already, the defendants had failed to prove that the Ex.A5 sale deed has been acted upon and in pursuant to which the second defendant has been put into the possession of the suit property and he has been in enjoyment of the same. Even without the aid of Ex.A8, the evidence available on record would show that the sale deed dated 0.01.1970 is a sham and nominal document and it has not come into force and it has not been acted upon and that the Nataraja Mudaliar and his sons continued to be in possession of the suit property. 32. In such case, the second defendant cannot pass any title in favour of the first defendant by virtue of Ex.A9 sale deed dated 18.05.1992. Unless the seller derives his title and perfects it, he cannot pass a valid title in favour of his purchaser. 32. In such case, the second defendant cannot pass any title in favour of the first defendant by virtue of Ex.A9 sale deed dated 18.05.1992. Unless the seller derives his title and perfects it, he cannot pass a valid title in favour of his purchaser. The second defendant who did not derive title in pursuant to Ex.A5, cannot be expected to pass an effective title in respect of the suit property in favour of the first defendant through Ex.A9. The second defendant at no point of time is seen to have claimed the original title deed in respect of the suit property inclusive of his own sale deed from the custody of the plaintiffs or their father Nataraja Mudaliar. Neither had he taken any efforts to mutate the revenue records in his name in order to assert that the suit properties have come into his possession. So, the notion on the part of the second defendant along with the retention of these documents by the plaintiffs and the discharge of the mortgage loan in favour of the Chidambaram Chettiar would cumulatively show that the second defendant was indifferent to the sale deed dated 04.01.1970 just because it was sham and nominal one. 33 . As the second defendant did not have any valid title to the suit property to be conveyed in his favour, the sale deed dated 18.05.1992 cannot be of any effect in respect of the title for the suit property. Insofar as the plaintiffs are concerned they are not parties either to the sale deed dated 04.01.1970 or to the sale deed dated 18.05.1992 and hence, it is right for them to ignore the same without even seeking any relief of declaration in respect of those sale deeds. In fact, that counter-claim filed by the defendants 1 and 4 on the strength of the sale deed dated 18.05.1992 has been dismissed and they did not prefer to file any first appeal and they accepted the judgment of the trial Court. It is probably because the second defendant could have thought that he could have a better option by contesting the case of the plaintiffs rather than pressing upon his own counter claim made before the Trial Court. 34. It is probably because the second defendant could have thought that he could have a better option by contesting the case of the plaintiffs rather than pressing upon his own counter claim made before the Trial Court. 34. Whatever may be the case the fact remains that the sale deed Ex.A5 is not supported by consideration and that it did not pass any valid title in favour of the second defendant and the second defendant has not been put into possession of the suit property and thus, Ex.A5 has not been acted upon. 35. The Courts below have rightly gone into the records and analyzed the evidence in order to render findings that the plaintiffs are entitled to get the relief of declaration as prayed. Since the title and possession of the suit properties continue to be remaining in favour of the Nataraja Mudaliar he has executed the Will in favour of his children. Though the appellant has challenged the genuineness of the Will Ex.A8, the said question will not arise so long as the first or the second defendant could prove any title in respect of the said properties. 36. The trial Court and the first appellate Court had rightly adverted these issues and had found them in favour of the plaintiffs. Hence, the substantial questions of law 1 to 3 are answered against the appellants. 37. In the result, this appeal is dismissed by confirming the judgment and decree dated 16.04.2012 made in A.S. No. 35 of 2011 on the file of the judgment and decree of the III Additional Subordinate Judge(Trainee District Judge), Cuddalore, which confirmed the judgment and decree dated 30.09.2010 made in O.S. No. 800 of 2004 on the file of the Additional District Munsif Court, Cuddalore. Consequently, connected Miscellaneous Petition is closed. No costs.