Madras High Court
Shyamala vs P.Maruthai on 21 January, 2021
S.A.(MD)Nos.40 and 41 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 21.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
S.A.(MD)Nos.40 and 41 of 2015
and
M.P.(MD)Nos.1 and 1 of 2015
S.A.(MD)No.40 of 2015
Shyamala ... Appellant/
Plaintiff
versus
P.Maruthai ... Respondent/
Defendant
Second Appeal filed under Section 100 of the Civil Procedure Code,
against the Judgment and decree dated 12.09.2012 made in A.S.No.206 of
2011 on the file of the learned Principal District Judge, Tiruchirapalli,
confirming the Judgment and Decree dated 31.01.2011 made in O.S.No.138 of
2005 on the file of the learned II Additional Subordinate Judge, Tiruchirapalli.
For Appellant : Mr.R.Devaraj
For Respondent : Mr.K.Govindarajan
S.A.(MD)No.41 of 2015
Shyamala ... Appellant/
Plaintiff
versus
P.Krishnamoorthy ... Respondent/
http://www.judis.nic.in
Defendant
S.A.(MD)Nos.40 and 41 of 2015
Second Appeal filed under Section 100 of the Civil Procedure Code,
against the Judgment and decree dated 12.09.2012 made in A.S.No.207 of
2011 on the file of the learned Principal District Judge, Tiruchirapalli,
confirming the Judgment and Decree dated 31.01.2011 made in O.S.No.140 of
2005 on the file of the learned II Additional Subordinate Judge, Tiruchirapalli.
For Appellant : Mr.R.Devaraj
For Respondent : Mr.K.Govindarajan
COMMON JUDGMENT
These appeals are filed by the plaintiff in identical suits in O.S.Nos.
138 and 140 of 2005, seeking a declaration that the sale deeds executed by the
plaintiff's husband and mother-in-law in favour of the respective defendants
are sham and nominal and for a consequential permanent injunction,
restraining the defendants from alienating the property in any manner
whatsoever.
2. According to the plaintiff, the properties, subject matter of the
suits, belonged to one T.S.Periyasamy Pillai, who died on 14.06.1979 leaving
behind his wife Sivagangaiammal and son Selvarathinam Pillai to succeed.
The said Selvarathinam Pillai died on 05.04.1999, leaving behind his mother
Sivagangaiammal, wife (the plaintiff herein) and two daughters. It is also
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S.A.(MD)Nos.40 and 41 of 2015
claimed that the deceased Selvarathinam Pillai was in possession and
enjoyment of the property till his life time and on his death, when the plaintiff
attempted to get the revenue records mutated in her name, she found that the
revenue records have been transferred in the name of the defendants. Enquiry
revealed that her husband Selvarathinam Pillai and her mother-in-law
Sivagangaiammal had sold the property to the defendants under two sale deeds
dated 07.11.1997. Contending that no consideration was paid under sale deeds
either to Selvarathinam Pillai and Sivagangaiammal, the plaintiff has come
forward with the above suits.
3. The suits were resisted by the defendants, contending that the
owners of the property, namely, Sivagangaiammal and Selvarathinam Pillai
had sold the property for a valuable consideration to the defendants in the
suits. It is also claimed that the father of the defendants was working with
T.S.Periyasamy Pillai. It is also claimed that the defendants purchased the
property for a valuable consideration and they were in possession of the
property on the date of sale. The defendants would also contend that the non-
impleading of other heirs of Selvarathinam Pillai including Sivagangaiammal
is fatal to the suit.
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S.A.(MD)Nos.40 and 41 of 2015
4. At trial, the plaintiff was examined as P.W.1 and Exs.A1 to A18
were marked in O.S.No.138 of 2005 and Exs.A1 to A28 were marked in
O.S.No.140 of 2005. The defendant in each suit was examined as D.W.1 and
Exs.B1 to B8 were marked in O.S.No.138 of 2005 and Exs.B1 to B3 were
marked in O.S.No.140 of 2005. One another independent witness,
Balasubramanian, was examined as D.W.2 in O.S.No.140 of 2005.
5. The trial Court upon consideration of the evidence on record
concluded that the plaintiff has not established the failure of consideration
pleaded by her. The Trial Court also took note of the fact that Selvarathinam
Pillai was alive for two years after the execution of the sale deed and other
executant, Sivagangaiammal, was alive till 2008 and both of them had not
chosen to challenge the sale deeds. The claim that the non-impleading of
Sivagangaiammal is fatal to the suit was rejected by the trial Court. On the
above findings, the learned trial Judge dismissed the suit.
6. Aggrieved over, the plaintiff preferred two appeals in A.S.Nos.
206 and 207 of 2011. The learned Principal District Judge, Trichy, who heard
the appeals concurred with the findings of the trial Court and dismissed the
appeals. Hence, the above second appeals.
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S.A.(MD)Nos.40 and 41 of 2015
7. The following substantial questions of law were framed at the
time of admission:
(i) Whether the Courts below are correct in not appreciating the
admission of the respondent/defendant to the effect that though he has
purchased the same in the year 1997, he has not made any attempt to change
the revenue records till 2005?
(ii) Whether the Courts below are correct in come to the conclusion
that the Appellant is not entitled to the relief sought for in view of the fact that
Selvarathinam Pillai and Sivagangai Ammal have not raised any objection
during their life time?
(iii) Whether the respondent/defendant has failed to prove the sale
deed as required under Section 106 of the Indian Evidence Act?
8. I have heard Mr.R.Devaraj, learned counsel for the appellant and
Mr.K.Govindarajan, learned counsel for the respondents.
9. Mr.R.Devaraj, learned counsel appearing for the appellant would
vehemently contend that the non-mutation of revenue records from the date of
purchase till 2004 is fatal to the claim of the defendants. The very fact that the
defendants had kept quiet for a period of five years would show that the sale
deeds are sham and nominal. It is also contended that the evidence of D.W.1,
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S.A.(MD)Nos.40 and 41 of 2015
wherein, D.W.1 has admitted that he did not have the title of his vendor,
verified prior to the purchase.
10. I am unable to accept the submissions of the learned counsel for
the appellant. Mere non-mutation of revenue records cannot denude the
purchaser of title to the property. The plaintiff has come with a case that the
sale deeds were not supported by the consideration. Both the sale deeds are
registered instruments. Being registered instruments, the presumption under
Section 60(2) of the Registration Act would automatically apply. The plaintiff
must be able to dislodge the said presumption by unimpeachable evidence.
There is no evidence except the evidence of the plaintiff as P.W.1 to show that
the documents were not supported by consideration.
11. Yet another feature, which has been taken note of by the trial
Court in rejecting the plaintiff's claim, is more important and that is the fact
that Selvarathinam Pillai, till his life time, did not choose to challenge the sale
though he was alive for two years, after the execution of the sale deeds and
Sivagangaiammal had not chosen to challenge the sale deeds though she was
alive till the date of filing of the suit. These facts would disprove the case of
the plaintiff. Therefore, the first question of law is answered against the
appellant.
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S.A.(MD)Nos.40 and 41 of 2015
12. The second question of law should also be answered against the
appellant, inasmuch as the appellant, who only succeeds to the estate of
Selvarathinampillai on his death, cannot challenge the validity of the sale deed
independently, without there being a challenge by the persons, who had
executed the sale deeds during their life time, more so, when one of the
executants of the sale deeds was still alive, when the suit came to be filed.
13. The third question of law, in my opinion, does not arise in the
case on hand. The payment of consideration is evidenced by the registered
instrument and endorsements made therein. The Registration Act raises a
presumption regarding the endorsements made by the Registering Officer on
the registered instrument. The endorsements made by the Registering Officer
would show that the executant has admitted the receipt of the consideration.
In the light of the above, Section 106 of the Evidence Act will not apply to the
facts of the case on hand. Hence, all the three questions of law are answered
against the appellants. The Second Appeals, therefore, fail and accordingly,
dismissed. However, there will be no order as to costs. Consequently,
connected miscellaneous petitions are closed.
21.01.2021
Index : Yes / No
Internet : Yes / No
ogy
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S.A.(MD)Nos.40 and 41 of 2015
R.SUBRAMANIAN, J.
ogy
To
1. The learned Principal District Judge,
Tiruchirapalli.
2. The learned II Additional Subordinate Judge,
Tiruchirapalli.
S.A.(MD)Nos.40 and 41 of 2015
21.01.2021
http://www.judis.nic.in
