Madras High Court
Rajamanickam (Died) vs Rani on 10 December, 2021
C.M.S.A.No.4 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 10.12.2021
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
C.M.S.A.No.4 of 2015
1.Rajamanickam (died)
2.Ellammal
3.Gopalakrishnan
4.Mathiselvi
5.Radhakrishnan
6.Sathyamurthy .. Appellants
(Appellants 2 to 6 brought on
record as legal heirs of the deceased
sole appellant vide order of this Court
dated 25.02.2021 made in C.M.P.Nos.
17530 to 17532 of 2016 in C.M.S.A.No.
4 of 2015)
Vs.
1.Rani
2.Malar
3.Kumaran
4.Selvi
1/20
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
5.Maheswari
6.Chinnatayi
7.Sengottaiyan
8.Ganesan
9.Palani .. Respondents
PRAYER: Civil Miscellaneous Second Appeal filed under Order XXI
Rule 58 read with Section 100 of Civil Procedure Code, against the
judgment and decree dated 30.04.2004 made in C.M.A.No.31 of 1999 on
the file of the Sub Court, Cheyyar, Tiruvannamalai District, reversing the
fair and decretal order dated 25.09.1998 made in E.A.No.519 of 1990 in
E.P.No.353 of 1989 in O.S.No.196 of 1987 on the file of the Principal
District Munsif Court, Cheyyar, Tiruvannamalai District.
For Petitioner : Mr.C.Prabakaran
For R1 to R5 : Mr.P.Mani
For R6 to R9 : No appearance
JUDGMENT
Civil Miscellaneous Second Appeal is filed against the judgment
and decree dated 30.04.2004 made in C.M.A.No.31 of 1999 on the file of
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
the Sub Court, Cheyyar, Tiruvannamalai District, reversing the fair and
decretal order dated 25.09.1998 made in E.A.No.519 of 1990 in
E.P.No.353 of 1989 in O.S.No.196 of 1987 on the file of the Principal
District Munsif Court, Cheyyar, Tiruvannamalai District.
2.The 1st appellant viz., Rajamanickam, decree holder filed this
Civil Miscellaneous Second Appeal. Pending C.M.S.A., he died and his
legal heirs were impleaded as appellants 2 to 6 by order of this Court
dated 25.02.2021. The 1st appellant filed suit in O.S.No.196 of 1987 on
the file of the Principal District Munsif Court, Cheyyar, Tiruvannamalai
District, against one Mariappan, for recovery of money and the said suit
was decreed by the judgment and decree dated 26.08.1987. The 1 st
appellant has also filed E.P.No.353 of 1989 against the said Mariappan
for attachment and sale of petition properties. The said property was
attached on 05.07.1990. At that time, one Shanmugam filed E.A.No.519
of 1990 in E.P.No.353 of 1989 under Order XXI Rule 58 of C.P.C., for
raising attachment.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
3.According to the said Shanmugam, the petition property is his
absolute property, he purchased the property from Mariappan and his two
brothers by the deed of sale dated 31.03.1986. From the date of purchase,
he is in possession and enjoyment of the petition property by paying
statutory dues. The judgment debtor Mariappan is owning terraced house
and leased out the properties in his village. It is open to the decree
holder to attach the properties of Mariappan and prayed for raising
attachment of petition properties.
4.The 1st appellant, decree holder and Mariappan, judgment debtor
filed separate counter affidavits and stated that Mariappan and his two
brothers sold petition properties on specific condition that said
Shanmugam will discharge loan amount due to the 1st appellant and dues
to other creditors. The said Shanmugam has given a receipt dated
27.05.1986 and only on that day, sale deed was registered. The 1 st
appellant waited for discharging loan amount by said Shanmugam and on
his failure, he has filed E.P.No.353 of 1989 for attachment and sale of
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
petition property. The sale in favour of said Shanmugam is only a
conditional sale on his undertaking that he will discharge the dues of
Mariappan to the 1st appellant and other creditors of Mariappan. E.A.
filed by Shanmugam is not maintainable and prayed for dismissal of said
E.A.
5.Before the Execution Court, the said Shanmugam examined
himself as P.W.1, one P.Chandran, was examined as P.W.2 and marked
four documents as Exs.P1 to P4. One P.K.Ramachandran was examined
as R.W.1, Mr.Damodharan, Sub-Registrar, was examined as R.W.2, the
judgment debtor and 1st appellant were examined themselves as R.W.3
and R.W.4 respectively and marked two documents as Exs.R1 and R2.
6.The learned Judge considering the materials placed before him,
oral and documentary evidence, the averments in the affidavit, counter
affidavits and after verifying the signature in the receipt issued by
Shanmugam marked as Ex.R2 with signature of Shanmugam in the
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
evidence, held that receipt was issued by the said Shanmugam and
dismissed E.A. filed by him.
7.Challenging the said order of dismissal dated 25.09.1998 made
in E.A.No.519 of 1990 in E.P.No.353 of 1989, the said Shanmugam filed
C.M.A.No.31 of 1999 against Mariappan, judgment debtor and
Rajamanickam, 1st appellant herein. Pending C.M.A., both Shanmugam
and Mariappan died. The respondents 1 to 5 herein, who are the legal
heirs of deceased Shanmugam, were impleaded as appellants 2 to 6 in
C.M.A. The respondents 6 to 9 herein, who are the legal heirs of
Mariappan, were impleaded as respondents 3 to 6 in C.M.A. The learned
First Appellate Judge considering the averments in the sale deed and
order of the learned trial Judge, allowed the appeal setting aside the order
of the trial Court dismissing E.A.
8.Against the said judgment and decree dated 30.04.2004 made in
C.M.A.No.31 of 1999, the 1st appellant Rajamanickam filed present
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
C.M.S.A. against the legal heirs of third party Shanmugam and legal
heirs of judgment debtor Mariappan.
9.The learned counsel appearing for the appellants contended that
lower Appellate Court without properly appreciating the materials placed
and well settled judicial pronouncement, erroneously allowed C.M.A.
reversing the well considered order of the trial Court dismissing
E.A.No.519 of 1990 filed under Order XXI Rule 58 of C.P.C. The sale in
favour of Shanmugam is only to defeat the interest of creditors of
Mariappan. The lower Appellate Court failed to see that trial Court after
considering signature of Shanmugam in Ex.R2 with admitted signature of
Shanmugam available in the Court, held that Ex.R2 was executed by
Shanmugam before the Sub-Registrar. The lower Appellate Court failed
to consider that first appellant objected to registration of sale deed before
the Sub-Registrar and said Shanmugam was put on notice about
attachment of property. The finding of the lower Appellate Court that the
trial Court ought not have compared the signature of Shanmugam is
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
perverse and the same is against the settled principle of law. The said
Shanmugam purchased the property from Mariappan pending suit and
property was sold by Mariappan only for settling the debts due to the
creditors. When Shanmugam failed to honour as per Ex.R2, 1st appellant
has no other remedy except to bring the properties for attachment of sale
and prayed for setting aside the judgment of the First Appellate Court
and prayed for allowing this appeal.
10.The learned counsel appearing for the respondents 1 to 5
contended that Shanmugam purchased property from Mariappan for
valuable consideration and has paid entire sale consideration. The vendor
Mariappan and his brothers admitted receipt of sale consideration before
the Sub-Registrar. The said Shanmugam proved payment of entire sale
consideration by examining P.W.2, who was witness to the sale deed and
who has seen the payment of sale consideration. The said Shanmugam
was not a party to the suit filed by the 1st appellant against judgment
debtor Mariappan. There is no recital in the sale deed imposing condition
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
that he should discharge the loan due to the creditors of Mariappan. If
Ex.R2 is true, it is for the appellants to initiate proceedings separately
and recover the amount from the legal heirs of Mariappan. The trial
Court erroneously rejected evidence of P.W.2. There is no recital in the
sale deed dated 31.03.1986 that Shanmugam undertook to pay the
creditors of Mariappan and the sale is conditional sale. The said
Shanmugam did not issue Ex.R2. Either the 1st appellant or Mariappan
failed to prove signature in Ex.R2 as that of Shanmugam by getting
opinion from the handwriting expert. The trial Court exceeding its power
and jurisdiction, erroneously compared the signature in the Court
document with signature in Ex.R2 and held that signature in Ex.R2 is
that of Shanmugam, which is not valid. The lower Appellate Court
considering the entire materials on record, rightly held that there are
insertions in Ex.R2 and that trial Court has no power to compare the
signature and allowed the appeal. There is no error in the judgment of the
lower Appellate Court and prayed for dismissal of the C.M.S.A.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
11.When the matter came up for hearing on 03.12.2021, there was
no representation for the respondents 6 to 9. Today also, there is no
representation for the respondents 6 to 9.
12.Heard the learned counsel for the appellant, who appeared
before this Court physically as well as the learned counsel appearing for
the respondents 1 to 5 through Video-conferencing/Hybrid mode and
perused the entire materials on record.
13.At the time of admission, this Court framed following three
substantial question of law, which are extracted hereunder:
“(1) Whether the Court below is justified in holding that
the trial Court cannot compare the signature in the disputed
document on its own with the available materials before the
Court?
(2) Whether the Court below was correct in allowing the
petition filed by the obstructer namely Shanmugam when he
had purchased the property on specific execution of the letter
in Ex.R2?
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
(3) Whether the lower appellate Court is correct in
rejecting the evidence of R.W.2, namely the Sub-Registrar who
has deposed that the appellant herein had given objection at the
time of registration of the sale deed dated 31.03.1986?”
Substantial question of law (1) and (2):
14.From the materials on record, it is seen that one Shanmugam
filed E.A.No.519 of 1990 in E.P.No.353 of 1989 under Order XXI Rule
58 of C.P.C., to raise order of attachment dated 05.07.1990 in respect of
petition property. The said Shanmugam is third party to the execution
proceedings. The 1st appellant filed O.S.No.196 of 1987 against one
Mariappan for recovery of money. The said suit was decreed by the
judgment and decree dated 26.08.1987. The 1st appellant filed E.P.No.353
of 1989 against Mariappan, the judgment debtor, for attachment and sale
of the petition property. According to the 1st appellant, the petition
property belongs to said Mariappan and properties are liable to be
attached and sold to realise the decretal amount. In the said E.P.,
Shanmugam, who is a third party filed E.A.No.519 of 1990 for raising
attachment. According to the said Shanmugam, he purchased petition
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
property from Mariappan and his two brothers by sale deed dated
31.03.1986 and paid sale consideration. On the other hand, it is the case
of Mariappan, the judgment debtor that he sold the petition property in
order to discharge the dues to the creditors including 1st appellant. The
said Shanmugam agreed to discharge the dues to creditors including 1st
appellant and issued receipt dated 27.05.1986, which was marked as
Ex.R2. In the said receipt, Shanmugam agreed that if he fails to discharge
the amounts due to the creditors, sale deed dated 31.03.1986 shall stand
cancelled. Shanmugam failed to discharge the dues and therefore, the
petition properties have to be attached and sold.
14(i) The 1st appellant in his counter affidavit has stated that he
gave an objection to the Sub-Registrar not to register any sale deed in
respect of the petition property. In view of such objection only, sale deed
executed on 31.03.1986 was registered only on 27.05.1986. At the time
of registration, the Sub-Registrar informed both Mariappan and
Shanmugam about the objection given by 1st appellant and Shanmugam
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
knew about the objection of 1st appellant at the time of registration of sale
deed itself. To substantiate their respective stand, the said Shanmugam
examined himself as P.W.1, one P.Chandran as P.W.2 and marked four
documents as Exs.P1 to P4. The 1st appellant examined himself as R.W.4,
Mariappan examined himself as R.W.3, they examined one
P.K.Ramachandran as R.W.1 and Sub-Registrar as R.W.2 and marked two
documents as Exs.R1 and R2.
14(ii) P.W.2 in his chief-examination has stated that when
Sub-Registrar enquired Mariappan and his brothers that whether they
have received sale consideration, they admitted that they have received
the amount and P.W.2 saw that they received amount. On the other hand,
in the cross-examination, he admitted that he does not know when the
sale deed was prepared and how many pages are there in the sale deed.
R.W.2/Sub-Registrar has deposed that 1st respondent gave objection to
him not to register any document in respect of petition property and at
the time of registration of sale deed in favour of Shanmugam, he
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
explained the objection given by 1st appellant to Shanmugam as well as
Mariappan. The sale deed was registered only after objection of 1st
appellant was known to Shanmugam. R.W.3/Mariappan in his evidence
has deposed that he sold the property to Shanmugam only to discharge
his dues to his creditors and Shanmugam did not pay entire sale
consideration, but withheld the amounts payable to his creditors and gave
receipt dated 27.05.1986 on the date of registration of sale deed
promising and agreeing to discharge the dues of creditors of Mariappan.
The said document was marked as Ex.R2. Shanmugam denied having
issued receipt Ex.R2. In view of the said denial, the trial Court compared
the disputed signature in Ex.R2 with admitted signature of Shanmugam
available in the Court namely, signature in the proof affidavit and cross-
examination and found that signature in Ex.R2 is that of Shanmugam.
The trial Court did not accept the evidence of P.W.2 with regard to
payment of sale consideration before the Sub-Registrar as he did not
know when the sale deed was prepared, how many pages are there and
whether the parties have signed in the sale deed. Further, the Sub-
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
Registrar as R.W.2 has clearly deposed that he put on notice to both
Mariappan and Shanmugam about the objection of 1st appellant and then
only registered the sale deed. R.W.2 is a Government Official and there is
no necessity to depose in a biased manner. Secondly, the evidence of
P.W.2 was rightly not accepted by the trial Court as except signing the
sale deed as witness, he did not know anything about the sale deed.
Mariappan deposed that he informed the Sub-Registrar that he received
sale consideration in view of Ex.R2. The trial Court after holding that
signature in Ex.R2 is that of Shanmugam and considering all the
materials placed before it including oral and documentary evidence,
dismissed E.A. filed by Shanmugam holding that said Shanmugam is
liable to pay decretal amount and hence, the petition property was
attached and there is no necessity to change the order of attachment.
14(iii) On the appeal filed by the said Shanmugam, First Appellate
Court set aside the order of trial Court and allowed the E.A. filed by the
said Shanmugam on the ground that the trial Court has no power to
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
compare the disputed signature with admitted signature in the Court, the
trial Court ought to have obtained opinion from the handwriting expert
with regard to genuineness of signature in Ex.R2 and then only ought to
have decided the genuineness of signature. The said reasoning of First
Appellate Court is erroneous. The Court can either obtain opinion from
the handwriting expert with regard to signature or at the same time, the
Court has power to compare the disputed signature with admitted
signature in the Court and come to a conclusion whether signature in the
document is available or not. In the present case, the trial Court has
exercised the power conferred on it by law and on proper exercising of
said power, has held that signature in Ex.R2 is that of Shanmugam only.
In view of power conferred on the trial Court, the finding of the First
Appellate Court that the trial Court without power, compared the
signature in Ex.R2 is invalid, illegal and is liable to be set aside and is
hereby set aside.
14(iv) Once Ex.R2 is proved to be issued by Shanmugam, to be
genuine, then he is bound by the contents of Ex.R2. In Ex.R2,
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
Shanmugam has categorically agreed to discharge the dues of
Mariappan's creditors. The Sub-Registrar, who was examined as R.W.2
has deposed that Shanmugam executed Ex.R2 and then only on the same
date, sale deed was registered. From Ex.P1/sale deed, it is seen that
Ex.P1 is dated 31.03.1986, but it was registered only on 27.05.1986. This
proves that on the objection by the 1st appellant and only after
Shanmugam agreed to discharge the dues of Mariappan by issuing
Ex.R2, the sale deed was registered. Having accepted to discharge dues
of Mariappan to his creditors, the said Shanmugam is liable to pay the
amounts claimed by 1st appellant in the E.P. and there is no reason to
interfere with the order of attachment of petition property by the trial
Court. First Appellate Court on erroneous reason set aside the well
considered order of the trial Court. For the above reasons, Substantial
question of law (1) is decided by this Court that the learned trial Judge
has power to compare the disputed signature with available signature in
the Court records. Substantial Question of law (1) is answered in favour
of the appellants.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
14(v) Insofar as substantial question of law (2) is concerned, First
Appellate Court has committed an error in allowing E.A. filed by the
obstructer, when he purchased the petition property on specific execution
of Ex.R2. Substantial question of law (2) is answered accordingly.
Substantial question of law(3):
15.As far as substantial question of law (3) is concerned, this Court
has already held that Sub-Registrar, R.W.2 is a Government Official and
he has no bias to depose against obstructer. Substantial question of law
(3) is answered against the respondents as First Appellate Court has
erroneously rejected the evidence of R.W.2, Sub-Registrar.
16.For the above reasons, Civil Miscellaneous Second Appeal
stands allowed. The judgment of the First Appellate Court made in
C.M.A.No.31 of 1999 is set aside. The order of the trial Court is restored
and E.A.No.519 of 1990 filed by Shanmugam is dismissed. The trial
Court is directed to proceed with E.P.No.353 of 1989 and dispose of the
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
same on merits and in accordance with law, within a period of three
months from the date of receipt of a copy of this judgment. No costs.
Consequently, connected Miscellaneous Petition is closed.
10.12.2021
kj
To
1.The Subordinate Judge
Cheyyar, Tiruvannamalai District.
2.The Principal District Munsif
Cheyyar, Tiruvannamalai District.
https://www.mhc.tn.gov.in/judis
C.M.S.A.No.4 of 2015
V.M.VELUMANI,J.
Kj
C.M.S.A.No.4 of 2015
10.12.2021
https://www.mhc.tn.gov.in/judis
