Madras High Court
V.Kala vs Thamizharasan on 12 July, 2021
AS.Nos.437 of 2019 and
338 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 12.07.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
AS.Nos.437 & 338 of 2019 and
CMP.No.11448 of 2019
AS.No.437 of 2019
V.Kala ... Appellant
Vs.
1.Thamizharasan
2.Sundaram @ Shanmugam
3.R.E.Varadharajan ...Respondents
PRAYER:
Appeal Suit is filed under Section 96 of CPC r/w Order 41 Rule 1 of
CPC against the judgment and decree dated 25.09.2018 in OS.No.106 of
2014 on the file of III Additional District Judge, Pondicherry.
For Appellant : Mr.R.Thiagarajan
For Respondents
For R1 & 2 : Mr.M.Rajasekhar
For R3 : No appearance
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
AS.No.338 of 2019
V.Kala ... Appellant
Vs.
1.Thamizharasan
2.Sundaram @ Shanmugam
3.R.E.Varadharajan ...Respondents
PRAYER:
Appeal Suit is filed under Section 96 of CPC r/w Order 41 Rule 1 of
CPC against the judgment and decree dated 25.09.2018 in OS.No.106 of
2014 on the file of III Additional District Judge, Pondicherry.
For Appellant : Mr.R.Thiagarajan
For Respondents
For R1 & 2 : Mr.M.Rajasekhar
For R3 : No appearance
COMMON JUDGMENT
Both the first appeals are filed against the judgment and decree dated
25.09.2018 passed in OS.No.106 of 2014 on the file of III Additional District
Judge, Pondicherry.
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
2. The suit is filed for declaration and permanent injunction in respect
of the suit property. The case of the plaintiff is that she purchased the suit
property by the registered sale deed dated 11.12.1995 for valid sale
consideration from one, Palaniandi. Thereafter, she obtained loan from the
Indian Bank to construct house. A sum of Rs.5,00,000/- was also donated by
her father in law and entire construction was completed in the year 2001. She
could not repay interest and the loan. On 11.11.2005, the Indian Bank
published an advertisement in newspaper for sale of the suit property.
Therefore, she requested her son to arrange some loan for repayment of the
loan due to the Indian Bank. On 19.03.2006, the husband of the plaintiff
approached the plaintiff and told her that he has arranged for loan and asked
her to come to Indian Bank on 20.03.2006. As per the advice of her husband,
the defendants 1 and 2 repaid the loan by way of cheque and cash and original
documents handed over to them as security and promised to return the same
on discharge of the loan. The plaintiff and her sons signed necessary papers
for borrowal of the loan from the defendants 1 and 2. The defendants agreed
to receive the loan amount within two years with interest at the rate of 24%
per annum.
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
2.1 Further case of the plaintiff is that while being so, the second
defendant asked the plaintiff to vacate the suit property and hand over vacant
possession. Then only, she came to understand that her signature was obtained
fraudulently in stamp papers and executed sale deed dated 20.03.2006.
Immediately, the plaintiff contacted her husband i.e. third defendant and he
promised to cancel the sale deed dated 20.03.2006 after discharge of the loan
borrowed from the defendants 1 and 2 herein. The defendants 1 and 2
fraudulently colluded with her husband i.e. third defendant and obtained
signature in the sale deed and executed sale deed. Therefore, the sale deed
dated 20.03.2006 is sham and nominal one and non est in the eye of law.
3. Resisting the same, the defendants 1 and 2 filed written statement and
stated that the plaintiff having been executed sale deed delayed from vacating
the suit property. The first defendant is the son and the second defendant is
the father and after purchase of the same, the second defendant is looking after
the suit property. The third defendant purchased the property in the name of
the plaintiff and he offered to sell the suit property which was subject to the
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
housing loan with the Indian Bank, Pondicherry. Therefore, the second
defendant visited the suit property. The first defendant arranged fresh loan
from ICICI Bank and settled the dues from the Indian Bank on behalf of the
plaintiff. In fact, the plaintiff entered into a written agreement for sale with the
defendants in the presence of the witnesses on 16.02.2006 and paid a sum of
Rs.50,000/- as an advance in cash to the plaintiff. In fact, ICICI bank issued
three cheques for total sum of Rs.13,23,985/- during the first week of March
2006. After completion of all formalities and closed the loan amount and
released all original title deeds. The first defendant paid balance sale
consideration to the plaintiff and the plaintiff executed sale deed dated
20.03.2006 registered vide document No.1338 of 2006. Suppressing all those
facts, the plaintiff filed the present false and frivolous suit for declaration
declaring that the sale deed dated 20.03.2006 as null and void. While pending
the suit, the defendants 1 and 2 also filed their counter claim in respect of the
suit property. They filed the counter claim seeking mandatory injunction for
eviction of plaintiff for mesne profit from 24.02.2007 till the delivery of
vacant possession of the suit property.
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
4. The third defendant filed separate written statement and stated that
due to family dispute with the plaintiff, the third defendant was separated from
the family and living alone. The second defendant is close friend of him. After
obtaining loan from the Indian Bank, the plaintiff constructed house in the suit
property and thereafter they could not able to repay the loan amount.
Therefore, the plaintiff and her sons approached the third defendant to set
right the problem. Therefore, on 20.03.2006, the third defendant went to the
bank along with the first and second defendants and discharged the loan
amount due to the Indian Bank. The original title deeds were returned and the
defendants 1 and 2 called upon the third defendant to come forward to execute
the mortgage deed by depositing all title deeds by the plaintiff in favour of the
first defendant. They promised to return the said documents once the loan
amount is fully discharged with interest. Accordingly, the plaintiff and the
third defendant along with their sons went to the Sub Registrar Office,
Pondicherry and executed mortgage deed prepared by the defendants 1 and 2
herein. When the defendants 1 and 2 asked the plaintiff to vacate the suit
property and hand over the possession, the plaintiff came to understand that
they got executed sale deed in their favour and they also assured that when the
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
amount was returned to them with interest, they are ready to cancel the sale
deed. He further stated that the sale deed was executed for very meagre
amount whereas the property valued more than Rs.65,00,000/-. Therefore, the
third defendant prayed for dismissal of the counter claim and prayed for
decreeing the suit.
5. The plaintiff filed written statement for the counter claim filed by the
defendants 1 and 2 and stated that after filing the present suit, the defendants 1
and 2 filed the counter claim to vacate the plaintiff from the suit property.
Therefore, the counter claim is not sustainable in law and liable to be
dismissed. The plaintiff has no knowledge about the loan borrowed by the first
defendant from ICICI Bank to the tune of Rs.13,00,000/-. The plaintiff
approached the defendants 1 and 2 to grant loan to settle the dues to the Indian
Bank. The plaintiff did not sign any agreement for sale dated 16.02.2006.
After discharging the loan dues to the Indian Bank, received original
documents of the suit schedule property and handed over to her husband i.e.
the third defendant for the purpose of loan already obtained by the defendants
1 and 2. At that juncture, the defendants 1 and 2 requested the plaintiff to
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
come and sign in necessary documents for the purpose of settling the loan.
When the plaintiff and the third defendant were not in good terms, utilising
the said circumstances, the defendants 1 and 2 colluded with third defendant
and obtained signature of the plaintiff and created alleged sale deed dated
20.03.2006. Therefore, the counter claim is devoid of merits and deserves to
be dismissed.
6. The plaintiff filed additional counter statement stating that her
husband handed over the agreement deed dated 20.03.2006 and accordingly,
sale consideration is fixed at Rs.16,20,000/-. The defendants 1 and 2 paid only
a sum of Rs.13,23,985/- to the plaintiff by way of discharging the loan
borrowed by her from the Indian Bank. In the said agreement dated
20.03.2006, the first defendant agreed to pay a sum of Rs.2,00,000/- to the
plaintiff on or before 31.05.2006 after vacating the suit property by the
plaintiff and hand over the key to the first defendant. So far, the first defendant
did not pay any balance sale consideration of Rs.2,00,000/- to the plaintiff.
Therefore, the sale deed dated 20.03.2006 is null and void.
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
7. On hearing the rival pleadings, the learned trial Judge framed the
following issues on 27.11.2009 for determination of the suit :-
(i) Whether the suit claim is valued property?
(ii) Whether the court fee paid is correct?
(iii) Whether this court has pecuniary
jurisdiction to try this suit?
(iv) Whether the sale deed dated 20.03.2006 is
null and void
(v) Whether the plaintiff is entitled for the relief
of declaration as prayed for?
(vi)Whether the plaintiff is entitled for the relief
of permanent injunction as prayed for?
(vii)Whether the defendants are entitled for the
relief of mandatory injunction as prayed for?
(viii)Whether the defendants are entitled for any
mesne profit? If so to what amount?
(ix)To what relief the plaintiff is entitled for?
(x) To what relief the defendants are entitled for?
7.1 The issues were re-casted on 20.04.2016 as follows:
1. Whether the plaintiff is entitled to get the
declaratory relief, regarding the alleged sale deed
dated 20.03.2006 is null and void and not
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
executable against the plaintiff and consequently to
cancel the same?
2. Whether the plaintiff is entitled to get the
permanent injunction against the defendant?
3. Whether the suit claim is valued for the purpose of
court fee and jurisdiction is correct?
4. Whether the court fees paid for the suit is correct?
5. Whether the court has got pecuniary jurisdiction to
try the suit?
6. Whether the defendant entitled for the mesne profit
from 24.02.2007 till the delivery of possession?
7. Whether the first and second defendants entitled for
perpetual mandatory injunction?
8. To what relief both parties are entitled?
7.2 Three additional issues were framed on 12.07.2017 as follows:
(i) Whether the defendants 1 and 2 fraudulently
obtained the sale deed from the plaintiff as alleged?
(ii) Whether the counter claim of D1 and D2 is
not maintainable without the prayer for declaration of
title to the suit property and delivery of possession as
alleged by D3?
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
(iii) Whether there was no sale agreement on
16.02.2006 as alleged by D1, D2?
8. In support of the plaintiff's case, P.W.1 to P.W.3 were examined and
eight documents were marked as Ex.A.1 to Ex.A.8. On the side of the
defendants, D.W.1 was examined and Ex.B.1 to Ex.B.8 were marked. On
considering the oral and documentary evidences adduced by the respective
parties and the submission made by the learned counsel, the trial Court
dismissed the suit filed by the plaintiff and allowed the counter claim filed by
the defendants 1 and 2. Aggrieved by the same, the plaintiff has preferred the
first appeals.
9. The learned counsel for the appellant submitted that the plaintiff
availed loan and purchased the suit property. Due to non payment of the loan
amount, with the help of her husband approached defendants 1 and 2 to avail
loan. Utilising the circumstances that the plaintiff and the third defendant were
not in good terms, the third defendant and the defendants 1 and 2 obtained
signatures in the stamp papers and fabricated the sale deed as if the plaintiff
sold out the suit property. She executed some deed only as security for the
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
loan obtained by the plaintiff from the defendants 1 and 2. Even assuming that
the plaintiff executed sale deed as per the agreement deed dated 20.03.2006,
the balance sale consideration of Rs.2,00,000/- to be paid by the first
defendant. Therefore, the sale deed dated 20.03.2006 is null and void.
10. Per contra, the learned counsel for the respondents 1 and 2
submitted that the plaintiff duly executed sale deed in favour of the first
defendant on discharge of the loan obtained by the plaintiff from the Indian
Bank to purchase the suit property. Having been executed sale deed, she
challenged the sale deed by way of the present suit. The plaintiff failed to
prove her case before the trial court that the defendants 1 and 2 colluded with
the third defendant and obtained signatures in the stamp papers and fabricated
the sale deed. Therefore, the court below rightly dismissed the suit filed by the
plaintiff and allowed the counter claim and also ordered to vacate the suit
premises.
11. Heard, Mr.R.Thiagaran, the learned counsel for the appellant and
the Mr.M.Rajasekhar, the learned counsel for the respondents 1 and 2.
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
12. The plaintiff filed the suit as against the first and second defendants
for declaration declaring that the sale deed dated 20.03.2006 as null and void.
While pending suit, the third defendant was impleaded. The first and second
defendants filed their written statement along with counter claim claiming
mandatory injunction for eviction of the plaintiff and claiming mesne profits
from 24.02.2007. Admittedly, the plaintiff is the wife of the third defendant.
She purchased the suit property by the registered sale deed dated 11.12.1995
as vacant plot and constructed house in the suit property by raising loan from
the Indian Bank. Thereafter, the plaintiff failed to discharge the loan amount to
the Indian Bank. Due to dispute between the plaintiff and the third defendant,
since the third defendant is an alcoholic, through her elder son, the plaintiff
met her husband and requested him to make arrangement to settle the loan
amount. Accordingly, the third defendant informed the plaintiff that he had
arranged loan and asked her to come to Indian Bank. The defendants 1 and 2
were present in the bank and obtained signatures from the plaintiff. Thereafter,
they repaid the loan amount by way of cheque and cash and got back the
original sale deeds of the suit property.
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
13. According to the plaintiff, they promised to return the documents on
discharge of the entire loan. In fact, on the request of the third defendant, the
sons of the plaintiff also signed as witnesses. In support of her contention,
PW1, who is the power agent of the plaintiff was examined and he is the
attesting witness to the sale deed and son of the plaintiff. PW2 is another son
of the plaintiff, who is another witness to the sale deed. The plaintiff
categorically admitted in her reply statement to the counter claim with regards
to the execution of the sale deed dated 20.03.2006. That apart, PW1 and PW2
were stood as witnesses to the sale deed. It is also not in dispute that the
defendants 1 and 2 had discharged the loan borrowed by the plaintiff from the
Indian Bank to the tune of Rs.13,23,985 /-. The outstanding amount of the
plaintiff was discharged to the Indian Bank and all the original parent
documents were handed over to her. In turn, she handed over the original
documents to defendants 1 and 2. Even before the sale deed, there was an
agreement for sale between the plaintiff and the first defendant dated
16.02.2006 and the same was categorically admitted by the plaintiff in her
reply statement. Therefore, the factum of the execution of the sale agreement
dated 16.02.2006 is proved by the admission of the plaintiff. The plaintiff
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
further contended that according to the agreement for sale, the sale
consideration was fixed at Rs.16,20,000/- and accordingly, the defendants 1
and 2 have to pay the balance sale consideration of Rs.2,00,000/-. Therefore,
the court below rightly dismissed the suit filed by the plaintiff.
14. As far as the counter claim is concerned, when the sale deed which
was marked as Ex.A2 is not proved by the plaintiff as fraudulent one and not
executable and concluded that the Ex.A2 is valid document made for proper
consideration, the defendants 1 and 2 are entitled for mandatory injunction,
since the plaintiff is only in permissive possession after the sale deed. The
defendants proved the fact that the suit property was purchased for valid sale
consideration and they permitted the plaintiff to be in possession for a period
of two months time to vacate the suit property after execution of the sale deed.
But the plaintiff failed to vacate the suit property and as such they issued legal
notice to vacate the suit premises and hand over the same. It is also
categorically admitted by the plaintiff in the document marked as Ex.B7.
Ex.B7 revealed that the defendants called upon the plaintiff that they revoke
the permission granted to the plaintiff till 31.05.2006 and directed the plaintiff
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
to vacate the premises and hand over the same. Therefore, the plaintiff is in
permissive possession of the property after execution of the sale deed dated
20.03.2006, and the court below rightly allowed the counter claim and
directed the plaintiff to vacate the suit property and hand over the vacant
possession of the suit property to the first defendant. Hence, this court finds
no infirmity or illegality in the judgment and decree passed by the court
below, and the first appeals deserve to be dismissed.
15. Accordingly, both the first appeals are dismissed. Consequently,
connected miscellaneous petition is closed. No order as to costs.
12.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lok
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
To
The III Additional District Judge,
Pondicherry
G.K.ILANTHIRAIYAN, J.
https://www.mhc.tn.gov.in/judis/
AS.Nos.437 of 2019 and
338 of 2019
lok
AS.Nos.437 & 338 of 2019
12.07.2021
https://www.mhc.tn.gov.in/judis/
