Madras High Court
Jebaraj vs Subburaj on 1 October, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 1.10.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
S.A.(MD) No.120 of 2020
and
C.M.P.(MD) No.1843 of 2020
Jebaraj Appellant
vs.
Subburaj Respondent
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 12.10.2018 passed in A.S.No.9 of 2014
on the file of the I Additional District Judge, Tuticorin confirming the
Judgment and decree dated 30.9.2013 passed in O.S.No.137 of 2008
on the file of the Sub Court, Tuticorin.
For Appellant : Mr.G.Prabhu Rajadurai
For Respondent : Mr.V.Shathurthi Raja for
Mr.S.Kadarkarai
JUDGMENT
The unsuccessful defendant has filed the present Second Appeal
challenging the concurrent findings of the courts below in decreeing
the suit filed by the respondent herein for declaration and recovery of
possession.
2. For the sake of convenience, the parties are referred as per
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their status in the suit.
3. The suit in O.S.No.137 of 2008 was filed to declare the
plaintiff as owner of the suit schedule properties and for recovery of
possession of the suit schedule properties which were unlawfully
trespassed by the defendant.
4. The case of the plaintiff is as under:-
The suit schedule properties originally belonged to one Hebzibah
Latha Selvi, who is the wife of the defendant. The said Hebzibah Latha
Selvi had appointed one S.Jebaraj as power of attorney through
registered power of attorney deed 1674 and 1675 of 2002 dated
4.10.2002 and the plaintiff, from the above Hebzibah Latha Selvi,
through the said power of attorney, had purchased the suit schedule
properties by virtue sale deeds vide document Nos.1005 and 1006 of
2005 dated 15.7.2005. After the purchase, the schedule properties
were in possession of the plaintiff and he was also paying taxes. It is
the further case of the plaintiff that the first item of the suit schedule is
the vacant land and second item of the suit schedule is a house
building and the suit property was covered with full of thorny plants
and the second schedule was without maintenance and in a condition
requiring repairs. When the plaintiff took possession and visited the
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suit property on 20.9.2005 for cleaning the suit property, he was
surprised that doors of the building were opened and the defendant
was sitting inside the second schedule property. When the plaintiff
had requested the defendant to vacate the suit property, for which he
had not only refused but also removed the fence in the suit property
and further encroached the suit property by putting some chairs and
benches inside the second schedule of the suit property and thereby
the the defendant had unlawfully trespassed into the suit property.
The plaintiff had lodged a complaint before the Inspector of Police,
Thattaparai Police Station on 20.9.2005 and the Inspector of Police
had summoned the defendant for which the defendant did not
respond. Hence, the plaintiff had issued legal notice dated 27.9.2005
to the defendant calling upon him to hand over vacant possession of
the suit property which was unlawfully trespassed by them. The
defendant had received legal notice on 30.9.2005 and had met the
plaintiff in person and had prayed for time to hand over vacant
possession of the schedule property and trusting the words of the
defendant, the plaintiff had also given time as requested by the
defendant. After that the plaintiff frequently demanded the defendant
to hand over vacant possession of the suit property for which the
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defendant was seeking some more time and lastly, on 6.7.2008, when
the plaintiff met the defendant in person and demanded to return the
suit property, the defendant had bluntly refused to hand over the
possession of the suit property. The plaintiff had purchased the suit
property through registered sale deed for valid sale consideration and
had also taken possession of the schedule property in which, the
defendant had unlawfully trespassed and on demand, he had refused
to hand over vacant possession and thereby the suit was filed.
5. The defendant had filed written statement contending as
under:-
The suit was not maintainable for non-joinder of necessary
parties viz., legal heirs of the said Hebzibah Latha Selvi. The suit
schedule properties were purchased by his wife Hebzibah Latha Selvi
out of her own income and that she had mortgaged the properties with
Tuticorin Cooperative Bank and she had also availed educational loan
from Canara Bank for education of her daughters and that he had
repaid the loan and redeemed the documents from the Bank. The
defendant had denied the appointment of one Jebaraj as power of
attorney of his wife and contended that the sale deeds were
fraudulently made. The defendant's wife was affected with terminal
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decease and she had passed away on 27.7.2005 and after the death of
his wife, his two daughters were enjoying the properties and that few
days before the death of the defendant's wife, the plaintiff had
fabricated documents and got the suit property transferred in his
name.
The Trial Court framed the following issues:-
(i) Whether the plaintiff is entitled for the relief of declaration?
(ii) Whether the plaintiff was entitled to recovery of possession?
(iii) Whether the plaintiff was entitled to costs?
(iv) To what other reliefs the plaintiff is entitled?
6. During the trial, the plaintiff examined himself as PW1,
Jebaraj David, the power of attorney was examined as PW2 and one
J.A.Varadaraj, the attestor to the deed of power of attorney was
examined as PW3 and Exs.A1 to A13 were marked. The defendant
examined himself as DW1 and his daughter J.Prathiba Nesam was
examined as DW2 and had marked Exs.D1 to D20.
7. Based on the oral and documentary evidence, the Trial Court
decreed the suit in favour of the plaintiff against which the defendant
had filed the first appeal.
8. The grounds sought to be agitated before the appellate court
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by the defendant are as under:-
The suit ought to have been dismissed by the Trial Court by
disbelieving Exs.A1 and A2, which are forged ones according to the
defendant. The suit was bad for non joinder of power holder as party
to the suit. The Trial Court ought to have dismissed the suit
considering the contradictions between the version of P.Ws.2 and 3
with regard to payment of sale consideration. Execution of Exs.A1 and
A2 is clouded by suspicion as original title deeds are in the custody of
the defendant. The power deed is not enforceable once the executor
died while the power is in force and therefore, the entire transaction
between the said Jebaraj and the plaintiff was not valid in the eye of
law.
9. During the pendency of the Appeal, the defendant filed
additional documents viz., Will dated 20.7.2005, alleged to have been
executed by the wife of the defendant in his favour bequeathing the
suit schedule properties in favour of the defendant, copy of the Driving
Licence of Hebzibah Latha Selvi with her signature and the enlarged
Xerox copy of the signature of Hebzibah Latha Selvi found in the power
deed, in the appellate court and the defendant had contended that his
wife Hebzibah Latha Selvi had executed a Will dated 20.7.2005 in his
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favour in respect of the suit schedule properties and the Will was in the
custody of his sister in law Vasantha and that he came to know about
the Will and had taken steps to mark it as additional document. He had
further stated that in the Will, she had not stated anything about the
power of attorney dated 4.10.2002 and thereby the sale deed dated
15.7.2005 was not valid. Further, the defendant had stated that in the
sale deed, the plaintiff had withheld a sum of Rs.25,000/- stating that
the said Hebzibah Latha Selvi was having loan dues of Rs.25,000 to be
paid by the Cooperative Bank whereas the loan was settled by him
on 9.6.2005 itself and the documents were redeemed by him.
10. The plaintiff had filed counter to the petition filed for marking
the additional documents that the Will was fabricated for the purpose
of appeal and to defeat the right of the plaintiff.
11. Despite the objections made by the plaintiff, the first
appellate court allowed the Application and permitted the defendants
to mark those documents and thereafter, the appellate court
formulated the following point for determination:
"Whether the appeal can be allowed."
12. It was the case of the appellant before the appellate court
that the Trial Court ought to have rejected Exs.A1 and A2 as
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unbelievable. The appellate court, finding that the plaintiff has proved
his case by oral and documentary evidence and further finding that the
additional documents viz., the Will produced by the defendant was a
fabricated one, had concurred with the findings of the Trial Court and
dismissed the Appeal, against which the present Second Appeal has
been filed.
13. Learned counsel for the appellant would submit that the
courts below erred in believing the documents filed by the plaintiffs
and admittedly the power of attorney is said to have been executed on
4.10.2002 and the sale deed has been registered on 15.7.2005 after a
delay of three years and during the relevant period, the wife of the
defendant was terminally ill and was admitted in hospital at Chennai
and there was absolutely no possibility for her to receive any amounts
during that time. Further, it is also an admitted fact that immediately,
within 12 days after the execution of the sale deed, through the power
of attorney, the defendant's wife had passed away on 27.7.2005 and
the defendant had filed Exs.B16 and 17 to prove that the defendant's
wife was hospitalised during the relevant period. Further, as per
Ex.A4, in respect of the second schedule property, the plaintiff had
retained an sum of Rs.25,000/- for making payments to the Tuticorin
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Cooperative Bank and having withheld part consideration the sale had
not been concluded and thereby the sale deed is not valid in the eye of
law.
14. The learned counsel for the appellant further submits that
though registration is prima facie proof of an intention to transfer the
property, it is not proof of operative transfer if payment of
consideration is a condition precedent for passing of the property and
since a part of the amount was withheld, the sale itself has become
void. Further, the courts below erred in shifting the burden on the
defendant to prove that the consideration was not received thereby he
would seek for admitting the appeal.
15. The learned counsel for the respondent would submit that
the courts below finding that the plaintiff had purchased the properties
for valid consideration and the sale was through a registered document
viz., the power of attorney of the owner of the property, held that it
was a valid sale. He would further submit that it is not the case where
there was non payment of money to the owner of the property. He
would also contend that the plaintiff had examined PW2, the power of
attorney holder to show that the amounts were paid to him and he
had, in turn, handed over the money to the owner of the suit property
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at Chennai and no contra evidence has been let in by the defendant
regarding the same. He would also submit that the plaintiff had also
examined the attestor of the power of attorney as PW3 thereby proved
of execution of the power of attorney.
16. The learned counsel for the respondent would further submit
that the entire amounts were paid to the power of attorney and the
part payment said to be retained was in respect of redeeming the
documents which were mortgaged by the owner of the property and
the sale deed falls within the definition of Section 54 of the Transfer of
Property Act which provides that sale is a transfer of ownership in
exchange for a price paid or promised or part paid and part
promised. He would further submit that in this case, the plaintiff had
paid the entire amount and he retained the amount only for the
purpose of redeeming the document, which were mortgaged with
Tuticorin Cooperative Bank. He would also contend that in the
appellate court, the defendant had produced certain additional
documents viz., the Will alleged to have been executed by the wife of
the defendant and copy of driving licence of the owner of the property
and the enlarged version of the signature of the owner of the property
found on the power deed for comparing by the appellate court and
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after comparing, both the signatures, the Appellate Court held that
both the signatures tally with each other and that the owner of the
property namely the wife of the defendant had executed the power of
attorney and the appellate court had also rendered a finding that the
alleged Will produced by the defendant before the appellate court is a
fabricated one.
17. Heard the learned counsel appearing for the parties and
perused the materials available on record.
18. The respondent/plaintiff claims title to the suit property
through a registered sale deed dated 15.7.2005 executed by the
power of attorney of the owner of the property whereas, the husband
of the owner of the property viz., the appellant/defendant opposes the
same claiming that the sale deed is a fabricated one and created after
three years after the execution of the deed of power of attorney and
after 22 days from the date of the sale deed viz., on 27.7.2005, his
wife died due to terminal illness. In the appellate stage, he brings into
picture three documents viz., a Will alleged to have been executed by
his wife on 20.7.2005, the driving licence containing the signature of
his wife and the enlarged xerox copy of the deed of power of attorney
to take two stands, one being that she had executed a Will in his
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favour and thereby he has got right and title over the suit property and
the other being that her signature was forged to fabricate the sale
deed based on the fabricated deed of power of attorney.
19. The Appellate Court, though entertained the Application
seeking to mark those documents, ultimately, on comparison of the
signatures and on going through the facts and the attending
circumstances, had disbelieved the version of the appellant/defendant
and held that the alleged Will is a fabricated one concurred with the
view taken by the Trial Court.
20. The sum and substance of the case of the
appellant/defendant can be classified as under:-
(i) The deeds of power of attorney dated 4.10.2002 said to have
been executed by the vendor of the suit property in favour of Jebaraj
and the sale deeds dated 15.7.2005 executed through the said Jebaraj
in favour of the plaintiff are fabricated and forged ones as his wife was
terminally ill prior to her death on 27.7.2005.
(ii) The vendor of the suit property, viz., wife of the defendant
had executed a Will on 20.7.2005 bequeathing the suit properties in
favour of the defendant.
(iii) Even as per the sale deeds, the plaintiff had retained a sum
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of Rs.25,000/- out of the sale consideration and hence, the sale is not
a valid one.
21. So far as the third issue raised by the appellant/defendant is
concerned, factually, it was found by the courts below that the amount
retained by the plaintiff was only to redeem the property from the
mortgage with Tuticorin Cooperative Bank and thus, it will not
invalidate the sale of the suit properties in favour of the plaintiff. In
this regard, it is relevant to refer the decision in Dahiben v.
Arvindbhai Kalyanji Bhanusali (2020 SCC OnLine SC 562),
wherein it has been held as under:-
"The definition of “sale” indicates that there
must be a transfer of ownership from one person
to another i.e. transfer of all rights and interest
in the property, which was possessed by the
transferor to the transferee. The transferor
cannot retain any part of the interest or right in
the property, or else it would not be a sale. The
definition further indicates that the transfer of
ownership has to be made for a “price paid or
promised or part paid and part promised”. Price
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thus constitutes an essential ingredient of the
transaction of sale."
In Vidyadhar v. Manikrao & Anr. (1999) 3 SCC 573, this Court
held that
"the words “price paid or promised or part paid and
part promised” indicates that actual payment of the
whole of the price at the time of the execution of
the Sale Deed is not a sine qua non for completion
of the sale. Even if the whole of the price is not
paid, but the document is executed, and thereafter
registered, the sale would be complete, and the
title would pass on to the transferee under the
transaction. The non-payment of a part of the sale
price would not affect the validity of the sale. Once
the title in the property has already passed, even if
the balance sale consideration is not paid, the sale
could not be invalidated on this ground. In order to
constitute a “sale”, the parties must intend to
transfer the ownership of the property, on the
agreement to pay the price either in present, or in
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future. The intention is to be gathered from the
recitals of the sale deed, the conduct of the parties,
and the evidence on record."
22. The contention of the appellant/defendant that the deed of
power of attorney and the sale deed are forged and fabricated one is
concerned, the courts below, after analyzing the oral and documentary
evidence, have clearly found that the respondent/plaintiff had
purchased the properties through registered sale deed and he had also
proved the genuineness of the registered deed of Power of Attorney by
examining the attesting witnesses.
23. A perusal of the oral and documentary evidence and the
pleadings of the parties reveals that on one hand, the
appellant/defendant intends to project a case as if his wife, the vendor
of the suit property was terminally ill and thereby, she could not have
intended to execute the sale deeds through the power of attorney
whereas, on the other hand, he seeks to introduce a new concept of
Will alleged to have been executed by his wife a week prior to her
death. The appellate court has also dealt with the claim of Will made
by the appellant/defendant and rightly found that the appellant had
not taken any steps to mark such a document before the Trial Court
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itself which would go to falsify his claim.
24. Further, it is the admitted case that the owner of the
property viz., wife of the defendant was living separately from the
defendant and that she had also initiated proceedings for maintenance
against the defendant. This proves that there was no relationship
between the defendant and the owner of the property during her life
time and thereby, the second limb of contention raised by the
appellant/defendant that his wife had executed a Will bequeathing the
suit properties in his favour has to, necessarily fail.
25. In view of the foregoing discussion, this court is of the view
that there is no infirmity or illegality in the judgment and decree of the
courts below. In the opinion of this court, the Appellant has not made
any substantial question of law to admit this Second Appeal.
26. The Hon'ble Apex Court in Kirpa Ram (D) Tr.Lrs. vs
Surender Deo Gaur (2020 Scc OnLine SC 935) has
categorically held as under:-
"23. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the High
Court if it is satisfied that the case involves a
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substantial question of law. The substantial question
of law is required to be precisely stated in the
memorandum of appeal. If the High Court is
satisfied that such substantial question of law is
involved, it is required to formulate that question.
The appeal has to be heard on the question so
formulated. However, the Court has the power to
hear appeal on any other substantial question of law
on satisfaction of the conditions laid down in the
proviso of Section 100 of the Code. Therefore, if the
substantial question of law framed by the appellants
are found to be arising in the case, only then the
High Court is required to formulate the same for
consideration. If no such question arises, it is not
necessary for the High Court to frame any
substantial question of law. The formulation of
substantial question of law or re- formulation of the
same in terms of the proviso arises only if there are
some questions of law and not in the absence of any
substantial question of law. The High Court is not
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obliged to frame substantial question of law, in
case, it finds no error in the findings recorded by
the First Appellate Court."
27. In view of the above, the Second Appeal fails and is,
accordingly, dismissed without being admitted. No costs. The
connected Miscellaneous Petition is closed.
1.10.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised 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. I Additional District Judge,
Tuticorin.
2. Sub Judge, Tuticorin.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
S.A.(MD) No.120 of 2020
and
C.M.P.(MD) No.1843 of 2020
1.10.2021.
https://www.mhc.tn.gov.in/judis/
