Madras High Court
Vellayan vs Maniammal on 24 February, 2022
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 24.02.2022
CORAM:
THE HONOURABLE MR. JUSTICE N.ANAND VENKATESH
SA.No.238 of 2012
and MP No.1 of 2012
1. Vellayan
2. Kuppal .....Appellants/Respondents/Plaintiffs
Vs.
1. Maniammal
2. Minor Kanagavalli .. Respondents/Appellants/Defendants
Prayer: Second Appeal filed under section 100 of the Code of
Civil Procedure to set aside the decree and judgment dated
12.09.2011 passed in A.S.No.141 of 2010 on the file of the
Principal Subordinate Judge, Salem, reversing the decree and
judgment dated 26.08.2009 passed in O.S.No.2198 of 2004 by the
1st Additional District Munsif Court, Salem.
For Appellant : Mr.R.Nalliyappan
For Respondents : Mr.P.Jagadeesan
https://www.mhc.tn.gov.in/judis
2
JUDGMENT
The plaintiffs are the appellants in this second
appeal.
2. The plaintiffs filed a suit stating that they were
the owners of the suit property by virtue of a registered sale
deed dated 02.01.1980 and they were in possession and
enjoyment of the same and the revenue records also stood in
their names.
3. The further case of the plaintiffs is that the 1st
plaintiff had a second marriage with the 1st defendant and the 2nd
defendant was born out of the said relationship. It is stated that
the 1st defendant started giving trouble to the plaintiff's family
and was forcing them to part with money. Thereafter, in order to
resolve the dispute, a panchayat was convened on 03.02.1992
and the 1st defendant was advised to rejoin the 1st plaintiff.
However, the 1st defendant did not obey the panchayathars and
asked for a divorce from the 1st plaintiff. It was accepted by the
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1st plaintiff and the marriage was dissolved as per their custom.
4. It is further stated that in the year 2000, the 1st
defendant started demanding share in the property belonging to
the plaintiffs. Therefore, one more panchayat was convened on
18.04.2000 and it was decided in the panchayat that the
plaintiffs will execute a family arrangement deed in favour of the
1st defendant. This arrangement did not go through and once
again in the year 2003, there was demand for property and once
again panchayat was convened and it was suggested that a
settlement deed will be executed with regard to the suit
property.
5. The grievance of the plaintiffs is that the 1st
defendant along with her relatives and her supporters attempted
to forcibly tress pass into the suit property and a suit came to be
filed by the plaintiffs in O.S.No.116 of 2004 seeking for the relief
of permanent injunction and this suit was pending before the Ist
Additional District Munsif Court, Salem. An Interim Application
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was filed in this suit and the 1st defendant filed a counter in the
said Interim Application. It was mentioned in the counter
affidavit that a sale deed has been executed on 03.05.2000 in
favour of the 2nd defendant. According to the plaintiffs, they
came to know about the sale deed only at that point of time. The
plaintiffs have alleged that the sale deed was obtained by fraud
and undue influence and it was not even supported by any
consideration. It is further alleged that the interim injunction
order in the earlier suit was vacated and taking advantage of the
same, the 1st defendant with the help of her supporters forcibly
entered the property and had cut and removed the trees. Left
with no other option, the suit came to be filed for setting aside
the sale deed dated 03.05.2000, for delivery of possession and
for the relief of permanent injunction.
6. The defendants filed a written statement and
took a very specific stand that the 1st plaintiff did not care to
maintain the 1st defendant and the minor daughter. Hence, a
request was made to the 1st plaintiff to at least sell the property
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in favour of the defendants and accordingly, a sum of Rs.48,000/-
was received by the 1st plaintiff and a sale deed came to be
executed in the name of the 2nd defendant on 03.05.2000. The
defendants further stated that the plaintiffs are well aware of
the property sold in favour of the 1st defendant and the same
being in the possession and enjoyment of the defendants.
Therefore, the defendants took a clear stand that there are
absolutely no merits in the suit filed by the plaintiffs.
7. The Trial Court on appreciation of the oral and
documentary evidence and after considering the facts and
circumstances of the case, decreed the suit through judgment
and decree dated 26.08.2009. The defendants aggrieved by the
same, filed an appeal before the Principal Sub-Court, Salem in
A.S.No.141 of 2010. The Appellate Court on re-appreciation of
the oral and documentary evidence and on assessment of the
findings of the Trial Court, found that the plaintiffs have not
made out a case and hence, by a judgment and decree dated
12.09.2011, allowed the appeal and set aside the decree of the
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Trial Court. Aggrieved by the same, the plaintiffs have filed the
present second appeal before this Court.
8. This Court framed the following substantial
questions of law :-
a) Whether the lower Appellate Court while reversing
the judgment of the trial Court had spelt out the
reasons and discussed the points as to why it is
disagreeing with the findings of the trial Court, as
mandated under Order 41 Rule 31 of C.P.C.?
b) Whether the findings of the lower Appellate Court
can be termed as perverse due to improper
appreciation of the oral and documentary
evidence available on record?
9. During the pendency of the appeal, the 1st appellant
died and since, the legal heirs of the 1st appellant viz the 2nd
appellant and the 2nd respondent were already on record, the same
was recorded. The 2nd respondent was a minor at the time of filing
of the suit and she attained majority during the pendency of the
second appeal and hence, she was also declared as a major.
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10. This Court carefully heard the learned counsel appearing
on either side and perused the materials available on record and the
findings of both the Courts below.
11. It is an admitted fact that Ex.A1 sale deed is a
registered document that was executed in favour of the 2nd
defendant. According to the plaintiffs, this document is tainted by
fraud and undue influence. In order to sustain such a plea,
pleadings play a major role and it is mandated under Order 6 Rule 4
of CPC. It is now a well settled proposition of law that the plea of
fraud has to be specifically pleaded and proved by the plaintiff and
merely mentioning the word “Fraud” will not be enough to sustain
such a plea. Useful reference can be made to the judgment of the
Hon'ble Supreme Court in [Saradamani Kandappan
Vs.S.Rajalakshmi and others] reported in 2011 4 CTC 640.
12. The relevant provision viz., Order 6 Rule 4 of CPC itself
mandates that where a plea of fraud is taken, all the particulars
must be given regarding the dates and the manner in which such a
fraud took place.
https://www.mhc.tn.gov.in/judis 13. The pleadings that are available in the plaint with regard
to the allegation of fraud is extracted hereunder :-
10. The plaintiffs came to know about the fradulent
sale deed obtained by the 1st defendant and her
supporters only on 20.02.2004.The alleged sale deed
dated 03.05.2000 in favour of the 2nd defendant getting
by way of fraud force, undue influence and the sale is of
fradulent sale.The plaintiffs did not knoww about the
sale deed dated 03.05.2000 only on 20.02.2004, that
the alleged sale deed had executed by them. The value
of the suit property is more than Rs.3,00,000/- but the
defendants obtained the alleged sale deed by way of
fraud and the value of the suit property is Rs.48,000/-.
The defendants purposely mentioned the lowest value
and fradulently obtained the alleged sale deed dated
03.05.2000.
14. The trial Court did not focus on the requirement of
details to be pleaded in a case where the plaintiff has come forward
with the plea of fraud. The Lower Appellate Court went into this
issue and came up with two specific findings. The 1 st finding was
that the plaintiffs no where specifically stated that either the
panchayathars
https://www.mhc.tn.gov.in/judis or the defendants misrepresented them. The Lower
Appellate Court also took into consideration Ex.A2, which is the
plaint that was filed in the earlier suit in O.S.No.116 of 2004 and
found that there was not even a mention regarding the alleged
fraud committed for obtaining the sale deed in the name of the 2 nd
defendant. Therefore, the Lower Appellate Court came to a
conclusion that the plaintiffs did not even sufficiently plead by giving
the entire particulars as to how they were misrepresented or who
actually misrepresented and made the plaintiffs execute the sale
deed. The Lower Appellate Court also took into consideration the
fact that the 2nd defendant is none other than the daughter of the 1st
plaintiff born through the 1st defendant and the sale deed was
executed in her favour. This had happened after there was a
panchayat between the parties. The Lower Appellate Court also
found that the contents of the sale deed could not have been
written without the knowledge of the 1st plaintiff. Curiously, the 1st
plaintiff choose not to get into the witness box and depose the
circumstances under which the document was executed. The Lower
Appellate Court also found that the assessment of all the documents
that were exhibited on the side of the plaintiff did not establish
possession and on the other hand, Ex.B2 showed that there was a
patta transfer order and Ex.B3 showed that the patta was granted
for the suit property in favour of the 2nd defendant. The Lower
Appellate
https://www.mhc.tn.gov.in/judis Court also took into consideration the tax receipts for the
suit property marked as Ex.B4 which stood in the name of the 2nd
defendant. Thus, the Lower Appellate Court found that the
possession was also with the defendants.
15. There was no dispute with regard to the signature that
was found in Ex.A1. The Lower Appellate Court on analyzing the
evidence of PW1 found that there was a complete and formidable
sale deed executed by the plaintiffs in favour of the 2 nd defendant.
These findings were rendered after appreciating the oral and
documentary evidence that was available on record and this Court
does not find any perversity in those findings. Hence, the 2 nd
Substantial question of law is answered against the appellants.
16. Insofar as the contention raised by the Learned counsel
for appellants with regard to non fulfillment of the mandate under
Order 41 Rule 31 is concerned, this Court finds that the Lower
Appellate Court has given reasons as to why it is disagreeing with
the findings of the Trial Court. While considering this issue, this
Court should not adopt a hyper technical approach and what is
required is to see if the Lower Appellate Court has complied with
the requirements of Order 41 Rule 31 in substance. This Court is
convinced that the Lower Appellate Court has fulfilled the
requirements
https://www.mhc.tn.gov.in/judis under Order 41 Rule 31 of CPC sufficiently. The 1st
Substantial question of law is answered accordingly.
17. In view of the above discussion, this Court does not find
any ground to interfere with the judgment and decree of the Lower
Appellate Court in A.S.No.141 of 2010 and accordingly, the Second
Appeal stands dismissed. Considering the facts and circumstances of
the case, there shall be no order as to costs. Consequently, the
connected miscellaneous petition is closed.
24.02.2022
Speaking Order
Index : Yes / No
Internet : Yes / No
rka
https://www.mhc.tn.gov.in/judis
N.ANAND VENKATESH.,J
rka
To
1.The Principal Subordinate Judge, Salem
2. The 1st Additional District Munsif Court, Salem
Copy To:-
The Section Officer
VR Section, High Court
Madras.
SA.No.238 of 2012
24.02.2022
https://www.mhc.tn.gov.in/judis
