S.Munavarsulthana vs Malika R.Gani
2021 Latest Caselaw 11930 Mad

                                                                             S.A.(MD)No.1212 of 2011

                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                DATED: 18.06.2021

                                                       CORAM:

                              THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN

                                              S.A.(MD)No.1212 of 2011


                   S.Munavarsulthana                          ... Appellant/Respondent/Plaintiff
                                                       -Vs-


                   Malika R.Gani                         ... Respondent/Appellant /Defendant


                   PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
                   Code, to call for the records pertaining to the Decree and Judgment dated
                   27.06.2011 made in A.S.No.78 of 2008 on the file of the Principal
                   Subordinate Judge, Tiruchirapalli and set aside the same and thereby
                   confirm the decree and Judgment dated 23.07.2007 made in O.S.No.414 of
                   2006 on the file of the II Additional District Munsif, Tiruchirappalli and
                   allow the second appeal.


                                       For Appellant      : Mr.T.C.S.Thillainayagam
                                       For Respondent : Mr.S.K.Mani


                                                   JUDGMENT

The plaintiff in O.S.No.414 of 2006 on the file of the Second

Additional District Munsif Court, Tiruchirappalli is the appellant in this

second appeal. The appellant purchased the property comprised in Survey https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1212 of 2011

No.234/1(B) measuring an extent of 1500 square feet from the defendant

vide sale deed dated 14.09.2005 and registered as document No.3589/5.

When the plaintiff purchased the property, it was a vacant site. The plaintiff

wanted to put up a construction thereon. When he approached the

Corporation of Trichy for getting the plan approval, he was informed that

the vacant site tax had not been paid for the period from 1999-2000 till

14.09.2005. Since the plaintiff had to emergently obtain approval, she paid

a sum of Rs.17,182/- to clear the aforesaid arrears. Thereafter, she issued

Ex.A2-notice dated 17.12.2005 demanding reimbursement from the

defendant. The defendant issued reply dated 13.01.2006 (Ex.A3) refusing

to comply with the demand set out in the notice. Hence, the suit came to be

instituted. The plaintiff examined herself as P.W.1 and marked Ex.A1 to

Ex.A5. On the side of the defendant, Ex.B1-letter issued by the local body

on 07.11.2005 was marked. The learned trial Judge, after considering the

evidence adduced on either side, by judgment and decree dated 23.07.2007

decreed the suit as prayed for. Questioning the same, the defendant filed

A.S.No.78 of 2008 before the Principal Sub Court, Trichy. By Judgment

and decree dated 27.06.2010, the Judgment and Decree passed by the trial

Court was set aside and the appeal was allowed. Questioning the same, this

second appeal came to be filed.

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1212 of 2011

2.The second appeal was admitted on the following substantial

questions of law:-

“1.Whether the learned first Appellate Court ought to have held

that the defendant as vendor was statutorily liable to discharge the tax

dues on the property in view of Section 55(1)(g) of the Transfer of

Property Act in the absence of contract to the contrary?

2.Is not the Judgment of the first Appellate Court vitiated for its

failure to draw adverse inference against the defendant for not entering

the witness box?”

3.The learned counsel appearing for the plaintiff would point out that

the defendant in her written statement had categorically claimed that till the

date of sale, she had paid all the tax arrears for the land. But this claim was

not at all established in evidence. He would further point out that the

plaintiff having paid substantial sum towards sale consideration could not

wait indefinitely to get the matter resolved. Therefore, the plaintiff cannot

be blamed for paying a sum of Rs.17,000/- to the local body, when it was

pointed out that tax dues remained unpaid. He would strongly contend that

the first Appellate Court completely misdirected itself by holding that

failure to notify the vendor about non payment of tax arrears would result in

non-suiting the plaintiff altogether. He also would point out that the https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1212 of 2011

defendant avoided entering the witness box and therefore, adverse inference

ought to have been drawn against the defendant. He submitted that the

substantial questions of law deserve to be answered in favour of the

appellant and pressed for restoring the decision of the trial Court.

4.Per contra, the learned counsel appearing for the respondent

defendant would contend that the local body never issued any notice

regarding tax arrears to the defendant. He drew my attention to Section

121 of Coimbatore City Municipal Corporation Act, 1981 which is

applicable to the Trichy City Municipal Corporation and contended that

there were three possibilities:- (a) tax was leviable under Section 121(2) or

under Section 121(4). (b) it was not at all leviable. Even if the tax was

leviable, still there can always be dispute quantum. He called upon me to

take judicial note of the fact that the tax payable by the assessee is

sometimes arbitrarily and excessively assessed and therefore, the assessee is

always at liberty to challenge the demand before the statutory tribunal. If

only, the plaintiff had notified the defendant that according to the local

body, vacant land tax is payable, the vendor could have taken an

appropriate course of action. In the case on hand, the plaintiff never gave

the vendor such an opportunity at all. The plaintiff having unilaterally

satisfied the demand of the local body cannot now insist that defendant https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1212 of 2011

should make good the loss suffered by the plaintiff. He submitted that the

judgment of the first Appellate Court rests on sound reasoning and that it

does not call for interference.

5.I carefully considered the rival contentions and went through the

evidence on record. The plaintiff is a purchaser of a vacant site from the

defendant vide Ex.A1 sale deed dated 14.09.2005. It is equally true that the

demand for payment of the vacant land tax for the period from 1999-2000

till 14.09.2005 was made by the local body and that the plaintiff cleared the

same. There cannot be any doubt that the vendor defendant herein was

obliged to clear the tax dues. This is a statutory obligation cast on any

vendor under Section 55(1)(g) of the Transfer of Property Act, 188. The

said provision states that the seller is bound to pay all public charges and

rent accrued due in respect of the property upto the date of sale. Of-course,

there is an exception. If the property is sold subject to encumbrance or if

there is a contract to the contrary, the vendor is not liable. In the case on

hand, the vendor had not examined herself. There is no evidence to show

that she stood exempted from the aforesaid statutory liability. Therefore, I

have to necessarily hold that there was liability on the vendor and that she

failed to discharge the said liability. At the same time, I cannot ignore the

stand taken by the defendant that she was never put on notice about non- https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1212 of 2011

payment of the vacant land tax by the local body. In the sale deed, the

vendor had nowhere claimed that she had paid the tax dues. Of-course,

in the written statement, she pleaded that she had paid the tax dues on the

land. But I have to go only by the recitals set out in Ex.A1. In Ex.A1, the

vendor had undertaken specifically that if any encumbrances are found to

exist and come to the knowledge of the parties later, she would clear the

same personally. Hence, the plaintiff ought to have first notified the

defendant about non-payment of the vacant land tax. She must have given

reasonable time to the vendor to set right things. If even thereafter, the

defendant did not clear the tax arrears, certainly the plaintiff could have

paid the tax dues and claimed reimbursement from the defendant. But in

the case on hand, no such opportunity was given to the defendant. By her

unilateral act, the plaintiff foreclosed the remedies available to the

defendant. The defendant has been presented with a fait accompli.

6.Thus, to some extent, there is default on the part of the plaintiff

also. But the plaintiff cannot be non-suited on that ground. Therefore, even

while answering the substantial questions of law in favour of the appellant,

I am of the view that the plaintiff will not be entitled to 18% interest

awarded by the trial Court. The vendor had been denied the right to

question the quantum of tax arrived at by the local body. Therefore, in the https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1212 of 2011

interest of justice, even while setting aside the impugned Judgment and

decree passed by the first Appellate Court, the suit is decreed in the

following terms:-

“(I)the defendant is directed to pay a sum of Rs.17,182/- to the

plaintiff on or before 01.08.2021.

(II) In the event of failure to do so, it will carry interest at the

rate of 18% per annum with effect from 02.08.2021”

7.The second appeal is allowed accordingly. No costs.

18.06.2021

Internet : Yes/No Index : Yes/No rmi

To

1.The Principal Subordinate Judge, Tiruchirapalli.

2.The II Additional District Munsif, Tiruchirappalli.

3.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis/

S.A.(MD)No.1212 of 2011

G.R.SWAMINATHAN, J.

rmi

Judgment made in S.A.(MD)No.1212 of 2011

18.06.2021

https://www.mhc.tn.gov.in/judis/