Madras High Court
Anandal vs Gnanamuthu on 3 December, 2021
S.A(MD)No.462 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 03.12.2021
CORAM
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBAROYAN
S.A(MD)No.462 of 2021
and
C.M.P(MD)No.6255 of 2021
Anandal ... Appellant/Appellant/Defendant
Vs.
Gnanamuthu ... Respondent/Respondent/Plaintiff
Prayer: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the judgment and decree, dated 19.07.2019 passed
in A.S.No.77 of 2015, on the file of the Sub Court, Tuticorin, confirming
the judgment and decree dated 29.04.2011 passed in O.S.No.193 of
2008 on the file of the Principal District Munsif Court, Tuticorin.
For Appellant : Mr.S.Vellaichamy
For Respondent : Mr.S.Kadarkarai
1/14
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
JUDGMENT
The concurrent Judgments and decrees passed in O.S.No.193 of
2008 by the Principal District Munsif Court, Tuticorin and in A.S.No.77
of 2015, by the Sub Court, Tuticorin, are being challenged in the
present Second Appeal.
2. The respondent/plaintiff has instituted a suit in O.S.No.193 of
2008 on the file of the trial Court to vacate the defendant from the
plaint schedule property and to hand over vacant possession to him
and to realise the arrears of rent, wherein, the present appellant has
been shown as defendant.
3. The case of the plaintiff is that the plaint schedule property
originally belonged to the defendant's husband late T.Rajasekar, who
inherited the same by way of a partition deed, dated 19.04.1999 and
he sold the said property to the plaintiff on 24.09.2002 for a valuable
consideration and possession was handed over to the plaintiff and it is
a residential building. After purchase, the defendant's husband took the
house on lease, as per oral tenancy agreement entered into between
them for a monthly rent of Rs.750/- and to pay the rent to the plaintiff
within 5th day of every month and the plaintiff also made entries
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
regarding the rent paid by the defendant's husband. After the death of
the defendant's husband, the defendant did not pay the rent from
April, 2007 to March, 2008 and thus, she has to pay a sum of
Rs.9,000/- as arrears of rent and the defendant sought for further
extension of time to reside in the plaint schedule property. As the
plaintiff has got five children and he required the plaint schedule
property for his own occupation, he sent a notice on 04.03.2008
terminating the tenancy, since the defendant failed to vacate the
building. The plaintiff's further case is that since the defendant did not
vacate from the plaint schedule property, he filed the suit seeking for
handing over vacant possession to him within the period being fixed by
this Court and if she fails to vacate the same, she has to be evicted
from the plaint schedule property and to realise a sum of Rs.9,000/-
towards arrears of rent and to give future mense profit till she vacates
the plaint schedule property and with costs.
4. The defendant filed the written statement and denied that the
plaint schedule property is inherited by way of a partition deed and the
same has been purchased by the defendant on 24.09.2002 for a valid
consideration and he obtained possession of the plaint schedule
property and enjoying the same with all rights. It is also false to state
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
that the plaintiff never leased out the said building to the defendant's
husband for a monthly rent of Rs.350/- and no agreement was entered
into by the defendant's husband with the plaintiff and it is also false to
state that the defendant had to pay a sum of Rs.9,000/- as arrears of
rent and it is needed for the plaintiff's own occupation. Originally, the
plaint schedule property is the ancestral property of the defendant's
father-in-law/Thangaraj Nadar. The defendant's husband being a
drunkard used to get money from various people and the plaintiff used
to give a sum of Rs.1,000/-, Rs.2,000/- for consuming liquor.
Accordingly, while the defendant's husband was in a drunken mood,
the plaintiff cheated the defendant and obtained the document forgedly
and never the defendant's husband had executed the said document in
a normal state of mind and the defendant's husband died, due to high
blood pressure and the building is with RCC roof and in the document,
it has been stated as Muttappa house built with lime mortar. Since the
document was obtained forgedly at the time the defendant's husband
was in an intoxication mood, the same was not a valid one. Though the
sale deed was executed in the year 2002, the house tax and electricity
connections are not transferred in the name of the plaintiff and the
property is worth more than Rs.2,00,000/- in the year 2002 itself and
the plaintiff has valued the same at Rs.45,000/-, which
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
is absolutely a low value fixed by him and it is a meagre one and there
was no relationship of landlord and tenant between the plaintiff and the
defendant. The deceased T.Rajasekar had left behind the defendant,
Thanga Pavitra and Thanasingh as his legal heirs. The plaint schedule
property is the ancestral property and the deceased T.Rajasekar had no
absolute right over the property to execute the sale deed in favour of
the plaintiff and the defendant is not residing in the house as a tenant
at any point of time and notice sent under Section 106 is not
maintainable and no cause of action arises to file the suit and prayed
for dismissal of the suit.
5. Before the trial Court, on the side of the plaintiff, the plaintiff
examined himself as P.W.1 and one Muthusamy was examined as P.W.2
and Exs.A1 to A3 were marked. On the side of the defendant, the
defendant was examined as D.W.1 and Muthuraj was examined as D.W.
2 and Dr.Thanaraj was examined as D.W.3 and Exs.B.1 to B.3 were
marked.
6. On the basis of the rival pleadings on either side, the trial
Court, after framing necessary issues and after evaluating both the oral
and documentary evidence, has decreed the suit in favour of the
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
plaintiff with costs and directed the defendant to vacate the plaint
schedule property within two months and the plaintiff is entitled to
realise a sum of Rs.9,000/- towards arrears of rent and the plaintiff has
to take separate proceedings for realization of future mesne profits
under Order 20 Rule 12 C.P.C.
7. Aggrieved by the Judgment and decree passed by the trial
Court, the defendant as appellant, had filed an Appeal Suit in
A.S.No.77 of 2015. The first appellate Court, after hearing both sides
and upon reappraising the evidence available on record, has dismissed
the appeal, confirming the Judgment and decree passed by the trial
Court.
9. Challenging the said concurrent Judgments and decrees
passed by the Courts below, the present second appeal has been
preferred at the instance of the plaintiff, as appellant.
10. Heard the learned counsel for the appellant and the learned
counsel appearing for the respondent and also perused the records
carefully.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
11. The learned counsel appearing for the appellant/defendant
would submit that the Courts below failed to note that there is no
evidence for the oral agreement for monthly rent of the plaint schedule
property made between the defendant's husband and the respondent.
Hence, the relationship of landlord and tenant was not established in
this regard. The Courts below failed to note that the market value of
the plaint schedule property at the time of execution of sale deed was
much more than Rs.2,00,000/-, but the plaint schedule property was
purchased by the respondent for a sum of Rs.45,000/-. The Courts
below failed to note that while at the time of executing the sale deed,
the husband of the defendant was under intoxication and in drunken
mood only, he executed the sale deed and prayed for allowing the
Second Appeal.
12. The learned counsel appearing for the respondent submitted
the trial Court has rightly decreed the suit and the first Appellate Court
also confirmed the same, which needs no interference.
13. From the perusal of Ex.A.1-sale deed, dated 24.09.2002, it is
clear that the defendant's husband T.Rajasekar had executed a sale
deed in favour of the plaintiff. The defendant contended that the said
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
document is a forged one, as the defendant's husband is in the habit of
taking money from the plaintiff a sum of Rs.1,000/- Rs.2,000/- for
drinking alcohol and at that time, when he was not in a clear state of
mind, in the intense of alcohol, the said document has been registered
by the plaintiff and the plaintiff has committed forgery and further
submitted that the said document cannot be executed, since the
property is an ancestral property and the defendant has got no
absolute right over the property. Further, the defendant had also filed
an appeal under Section 151 C.P.C. for re-opening the appeal suit to
find out whether the trial Court has got jurisdiction for appointing an
Advocate Commissioner and also to see the undervaluation of the
document.
14. On going through the averments, it is seen that the said
issues have also been decided by the first Appellate Court. On going
through the said document, it has to be decided, whether it is a forged
document or not? The plaintiff has proved that the said document has
been registered for an amount of Rs.45,000/- consideration. Whether
the defendant's husband was in an inebriated stage has not been
proved by the defendant and further the attesting witnesses were
examined, who had proved the execution of the said document. Hence,
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
it is proved that the sale deed has been executed for a valid
consideration of Rs.45,000/- and as per the partition deed, dated
19.04.1999, the brothers namely Rajasekar, Baskar, Manokar and
Paulraj have partitioned the properties among themselves which has
been sold by the defendant to the plaintiff has been proved and in the
said document, the defendant has admitted the said document as a
partition deed. That being the case, as per the partition deed, the
husband of the defendant has been allotted to the said property and
accordingly, admission made by the defendant that the property had
been allotted on her husband as a share and her husband was enjoying
the property as his own property and has also got patta in his name
and it was never in the possession of any other person jointly was
accepted. That being the case, the statement made by the defendant
that the children are having right over the property or share over the
property has not been substantiated by any evidence and the same is
also rejected by the first Appellate Court.
15. Further, no other document or any evidence has been
produced to show that it is an ancestral property and through which,
the children have any right over the property. Further, if there is any
consideration paid by one person to another person and the sale deed
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
has been proved which has also been registered before the appropriate
Register Office, then the said document has been executed only after
obtaining the sale consideration. As the defendant's statement that the
defendant's husband used to get a sum of Rs.1,000/-, Rs.2,000/- for
drinking purposes and has forgedly registered the document is also not
substantiated and further in action on the part of the defendant to set
aside the said document. If at all the said document has been forgedly
registered when the husband of the defendant was in an inebriated
stage, the same has not been claimed by the wife in an appropriate
forum to set aside the said document as null and void. The Doctor was
examined as D.W.3, who also certified that Rajasekar was in the
perfect state of mind at the time of execution of sale deed also would
prove that the deceased T.Rajasekar had signed in English in Ex.A.1-
sale deed and if a person who is in heavy intoxication mood, he will not
be in a position to sign it uniformly, but all the signature in Ex.A.1 are
uniformly written and the contention raised by the defendant that her
husband executed Ex.A.1 sale deed in intoxication mood is not
acceptable is the finding of the trial Court and the first Appellate Court
also accepted the same. That being the factual aspect, this Court is not
inclined to interfere with the same.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
16. Regarding the undervaluation of the property, usually when
the document has been produced for registration by concerned parties,
the Sub-Registrar's duty is to inspect the property to find out whether
the property has been undervalued and properly stamped and after
inspection only, he will accept the said document to be released after
registration and if at all, it is undervalued, he will refer it to the higher
officials for payment of deficit stamp by sending appropriate notice. In
this case, the document has been executed in the year 2002 and till
the date of filing of the suit in the year 2008, there was no such
demand notice either issued or there was no claim by the person
stating that the same has been undervalued has been proved. Further,
the mutation of patta and electricity connection are due to the parties
negligence and if at all they seek for mutation, they could have done it
earlier or later is not the botheration of the plaintiff and that will not be
a major flaw for accepting his title. Whether the Court has got
jurisdiction to try this issue has been clearly proved that the Court has
got jurisdiction as the said property is situate at Ottapidaram Village
and that being the case, if the area is falling within the Village
jurisdiction and does not fall under a Town or City, R.C.O.P Court need
not be approached and suit can be filed. The plaintiff's case is that
there was a oral tenancy agreement. When the defendant is rebutting
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
the same, she should have produced appropriate evidence to show that
there was no such oral tenancy and she has to prove under what
capacity she was residing in the property when her husband had
executed the sale deed in the year 2012 itself. Hence from the above
facts, the plaintiff has proved his case and the defendant has not made
out a case for interference by this Court. It is also seen that the
application filed by the defendant for appointment of an Advocate
Commissioner was also negatived and the plaint averment has been
proved beyond doubt and the same is hereby allowed in favour of the
plaintiff and the same is dismissed against the defendant. The
appellant/defendant is directed to vacate the plaint schedule property
within a period of two months, as she has not been paying rent for the
past 14 years.
17. For the reasons aforesaid, this Court is of the considered
view that no substantial questions of law has been made out by the
appellant/defendant to interfere with the well considered judgments
and decrees rendered by the Courts below and accordingly, the Second
Appeal fails and the same stands dismissed. No costs. Consequently,
connected Miscellaneous Petition is closed.
03.12.2021
Index : Yes/No
Internet : Yes/No
ps
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
Note :
In view of the present lock
down owing to COVID-19
pandemic, a web copy of the
order may be utilized for
official purposes, but,
ensuring that the copy of the
order that is presented is the
correct copy, shall be the
responsibility of the
advocate / litigant concerned.
To
1.The Sub Court,
Tuticorin.
2.The Principal District Munsif Court,
Tuticorin.
3.The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
S.A(MD)No.462 of 2021
V.BHAVANI SUBBAROYAN, J.
ps
Judgment made in
S.A(MD)No.462 of 2021
03.12.2021
https://www.mhc.tn.gov.in/judis
