Madras High Court
Devaraj vs Alamelu (Deceased) on 22 December, 2023
SA.Nos.274 & 275 of 2001
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 13.12.2023
PRONOUNCED ON : 22.12.2023
CORAM
THE HON'BLE Mr.JUSTICE C.KUMARAPPAN
S.A.Nos.274 & 275 of 2001
S.A.No.274 of 2001
1. Devaraj
2. Muthammal
3. Tamilarasi
4. Minor Selvi
(declared as Major and 3rd appellant discharged
from her Guardianship vide order dated 22.08.2012
made in CMP.Nos.640 & 641/2012)
... Appellants
- Vs -
1. Alamelu (deceased)
2. Sadayapadayachi (deceased)
3. Periyasamy
S/o.Sadaya Padayachi
(The Appeal is dismissed as against R3 vide order dated 19.03.2018)
4. Navu
5. Periyasamy
(R4 & R5 impleaded as LRs of deceased R1
vide Order dated 03.09.2012 made in
CMP.Nos.707 to 709/2012)
6. Kamalam
(R6 impleaded as LR's of the deceased R2 vide order dated
19.03.2018 made in CMP.No.743/2012)
... Respondents
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SA.Nos.274 & 275 of 2001
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the judgment and decree of the Subordinate Judge of Attur, dated
20.06.2000 made in A.S.No.72 of 1997 setting aside the order of the District
Munsif of Attur, dated 26.08.1996 made in O.S.No.130/1985.
For Appellants : Mr.P.Jagadeesan
For Respondents : R1 & R2-Died (Steps taken)
R3-Died (Disd.as abated vide
order dated 19.03.2018
R4-Served. No Appearance
Mrs.R.Abirami
for M/s.V.Srimathi for R5
R6-No Appearance
S.A.No.275 of 2001
Muthammal
... Appellant
- Vs -
1. Alamelu Ammal
2. Navu
3. Periyasamy
... Respondents
Second Appeal is filed under Section 100 of the Civil Procedure Code
against the judgment and decree of the Subordinate Judge, Attur dated
20.06.2000 made in A.S.No.73/97 setting aside the order of the District
Munsif of Attur dated 26.08.1996 made in O.S.No.386/1982.
For Appellant : Mr.P.Jagadeesan
For Respondents : Mr.R1 & R2 - Served. No Appearance
Mrs.R.Abirami
for M/s.V.Srimathi for R3
*****
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SA.Nos.274 & 275 of 2001
COMMON JUDGMENT
Since the parties to the suit and the issues involved in the suit are
common, this Court deems it appropriate to dispose of both the Second
Appeals by way of a common judgment.
2. SA.No.274 of 2001 arising out of the suit in O.S.No.130 of 1985.
Similarly, S.A.No.275 of 2001 arising out of O.S.No.386 of 1982.
3. For the sake of convenience, “O.S.No.386 of 1982” shall be referred
to as “Muthammal suit”, and “O.S.No.130 of 1985” shall hereinafter be
referred to as “Alamelu suit”. In Muthammal suit, Alamelu was arrayed as a
defendant. In Alamelu suit, Muthammal, her husband and children were
arrayed as the defendants. The suit properties in both the suits are one and
the same.
The brief facts, which give rise to the instant Second Appeals are as
follows:-
4. In Muthammal suit, she contend that she derived title by virtue of a
sale deed executed by one Mr.Irusa Gounder on 17.02.1982. In respect of
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SA.Nos.274 & 275 of 2001
Alamelu suit, she projected a title through a settlement deed dated
07.09.1978 executed by her husband Dasa Gounder. Therefore, their
pleadings and defence is based on the sale deed stands in the name of
Muthammal and settlement deed stands in the name of Alamelu.
Evidence and Documents:-
5. Before the Trial Court, the plaintiff examined 3 witnesses as PW1 to
PW3 and marked as many as 37 documents as Exs.A1 to A37. On behalf of
the defendants, 3 documents have been marked as Exs.B1 to B3 and 5
witnesses have been examined as DW1 to DW5.
Findings of the Court below:-
6. The Trial Court, after having considered either side submissions and
also after having gone into the oral and documentary evidence, has
ultimately decreed the Muthammal suit and dismissed the Alamelu suit.
When Alamelu preferred an appeal, the First Appellate Court reversed the
finding and decreed the Alamelu suit, but dismissed the Muthammal suit.
Against the said finding, Muthammal has preferred S.A.No.275 of 2001
against her suit in O.S.No.386 of 1982. Similarly, Muthammal, her husband
and children have filed S.A.No.274 of 2001 against the decree granted by the
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SA.Nos.274 & 275 of 2001
First Appellate Court in Alamelu suit in O.S.No.130 of 1985.
Substantial Question of Law:-
7. At the time of admission on 27.02.2001, this Court has formulated a
common substantial question of law, which is as under:-
“Are not the conclusions arrived at by the First
Appellate Court in both the appeals opposed to the pleadings
and materials (both oral and documentary) placed by the
parties before it?”
Submission of either side counsel:-
8. The learned counsel for the appellant/Muthammal suit, would
vehemently contend that the Trial Court has given a well considered finding,
after thoroughly appreciating the oral and documentary evidence. It was also
contended by the learned counsel of Muthammal suit that the Trial Court,
after gone into various aspects, based reliance upon the Sale Deed stands in
the name of Muthammal and the Adangal and Patta [Ex.A2], has rightly
arrived at a conclusion in favour of Muthammal. It is the contention of the
learned counsel for the appellant/Muthammal that except the settlement
deed, which was allegedly executed by Alamelu’s husband in favour of
Alamelu, no other anterior document has been submitted by Alamelu.
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SA.Nos.274 & 275 of 2001
Therefore, the finding of fact recorded by the First Appellate Court in favour
of Alamelu is without any evidence. Hence, prayed to interfere with the order
of the First Appellate Court and thereby, prayed to decree the suit in
O.S.No.386 of 1982 [Muthammal's suit] and dismiss the suit in O.S.No.130
of 1985 [Alamelu's suit].
9. Per contra, the learned counsel of the respondents/Alamelu would
vehemently contend that the documents, which Muthammal relies is a sale
deed, where admittedly neither a signature nor thumb impression of Irusa
Gounder would find a place, therefore, the same is unenforcible, which has
been rightly relied by the First Appellate Court to disbelieve the case of
Muthammal. Apart from that, there are no anterior title to Muthammal to
substantiate her claim. Hence, contended that there are no grounds to
interfere with the well considered finding of the First Appellate Court.
10. I have given my anxious consideration to either side submission.
Analysis of the submissions:-
11. On perusal of the description of property, the suit property is in
two S.F. numbers viz., 100/2 and 109/5 of Koodamalai village. As rightly
contended by the learned counsel for the respondents/Alamelu, the Sale Deed
(Ex.A1), which relied by Muthammal did not contain the thumb impression
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SA.Nos.274 & 275 of 2001
or signature in any of the places, except on the reverse of the document,
where Irusa Gounder has put his left thumb impression at the time of
registration of Ex.A1-Sale Deed. In all other places, it was only referred as
fPuy; ,Ur ft[z;lh; [Mark-Irusa Gounder]. Neither Irusa Gounder’s signature
find a place nor his thumb impression is there in the bottom of each page of
the sale deed. In this regard, the learned counsel for the
respondents/Alamelu would contend that the First Appellate Court has
rightly observed in this aspect, and found that through Ex.A1-Sale Deed,
Muthammal could not derive any title.
12. At this juncture, the learned counsel for the appellant/Muthammal
relies upon the interpretation clause of Transfer of Property Act, and invited
the attention of this Court about Section 3 of The Transfer of Property Act.
He would also invite the attention of this Court in respect of Section 3 sub-
clause (56) of General Clause Act. Apart from that, the learned counsel for
the appellant also relied upon the following judgments:-
1. J. and D. Eziekeil, carrying business under the Name
and Style of Ezekeil and Co Vs. Annada Charan Sen
reported in MANU/WB/0161/1922;
2. Rajani Mandal Vs. Digindra Mohan Biswas reported in
1931 LawSuit(Cal) 246;
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SA.Nos.274 & 275 of 2001
3. Birbal Vs. Thamansingh and others reported in 1955
Rajasthan 91;
4. Karri Nookaraju Vs. Putra Venkatarao and Ors.
reported in AIR 1974 AP 13;
5. Smt.Har Kaur (deceased by LR's) Vs. Gura Singh and
another reported in AIR 1988 Punjab and Haryana 41.
13. In J. and D. Eziekeil's case (cited supra), the Hon'ble Calcutta
High Court held that the signature generally means the writing or otherwise
affixing a person's name or a mark to represent his name, by himself or by his
authority, with the intention of authenticating a document as being that of or
as binding on the person whose name or mark is so written or affixed.
14. In Rajani Mandal's case [cited supra], the Hon'ble Calcutta High
Court, by referring General Clause Act, has stated that a mark of an illiterate
person would also amount to due execution and even further held that if the
executant touching the pen and authorised the endorser to sign on his behalf,
it amounts to execution if this was a customary method of signing for an
illiterate person.
15. In Birbal's case [cited supra], the Hon'ble Rajasthan High Court
held that if there is a practice prevailing in the area, not obtaining the
signature in all pages will not make the document become unenforcible.
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SA.Nos.274 & 275 of 2001
16. In Karri Nookaraju's case [cited supra], the Hon'ble Andhra
Pradesh High Court has held that if the executant admits the execution by
putting his thumb impression before the Sub Registrar, it is sufficient to hold
due execution, in respect of an illiterate person.
17. In Gura Singh's case [cited supra], it has stated that since because
the signature is not find in one page, the same will not make the document
become unenforcible.
18. From relying the above precedent and the provisions, the learned
counsel for the appellant would vehemently contend that when a person is an
illiterate person, the mere reference “fPuy; (mark)” would be sufficient to treat
as signature or acceptance of due execution of the document. It was also
brought to the knowledge of this Court that in Ex.A1, at the time of
registration, the said Irusa Gounder has put his thumb impression.
Therefore, this Court is of the firm view that notwithstanding the absence of
signature in Ex.A1, by virtue of provision under Section 3 of the Transfer of
Property Act and Section 3 (56) of General Clauses Act, in respect of the
signature of an illiterate person, it can be made through a mark, which was
rightly found in Ex.A1-sale deed.
19. For ready reference, this Court would like to extract Section 3 of
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SA.Nos.274 & 275 of 2001
TP Act and Section 3(56) of General Clauses Act:-
“Transfer of Property Act
3. Interpretation-clause.—In this Act, unless there is
something repugnant in the subject or context,—
“immoveable property” does not include standing timber, growing
crops or grass:
“instrument”, means a non-testamentary instrument:
[“attested”, in relation to an instrument, means and shall be
deemed always to have meant attested by two or more witnesses
each of whom has seen the executant sign or affix his mark to the
instrument, or has seen some other person sign the instrument in
the
presence and by the direction of the executant, or has received
from the executant a personal acknowledgement of his signature
or mark, or of the signature of such other person, and each of
whom has signed the instrument in the presence of the executant;
but it shall not be necessary that more than one of such witnesses
shall have been present at the same time, and no particular form
of attestation shall be necessary:]
“registered” means registered in 6[7[any part of the territories] to
which this Act extends] under the law for the time being in force
regulating the registration of documents:
“attached to the earth” means—
(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or
buildings; or
(c) attached to what is so imbedded for the permanent
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SA.Nos.274 & 275 of 2001
beneficial enjoyment of that to which it
is attached:
[“actionable claim” means a claim to any debt, other than a
debt secured by mortgage of immoveable property or by
hypothecation or pledge of moveable property, or to any beneficial
interest in moveable property not in the possession, either actual or
constructive, of the claimant, which the Civil Courts recognise as
affording grounds for relief, whether such debt or beneficial interest
be existent, accuring, conditional or contingent:]
[“a person is said to have notice”] of a fact when he actually knows
that fact, or when, but for wilful abstention from an enquiry or
search which he ought to have made, or gross negligence, he would
have known it.”
General Clauses Act
3. Definitions.—In this Act, and in all Central Acts and Regulations
made after the commencement of this Act, unless there is anything
repugnant in the subject or context,—
56) “sign”, with its grammatical variations and cognate
expressions, shall, with reference to a person who is unable to
write his name, include “mark”, with its grammatical
variations and cognate expressions”
20. It is useful to refer the judgment of the Calcutta High Court in
Shailendranath Mitra Vs. Girijabhushan Mukherji reported in AIR 1931
CAL 596. The relevant portion of the said judgment is extracted hereunder:-
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“Our attention has been drawn by the learned advocate
for the appellants to the interpretation given by the General
Clauses Act to the word “sign.” It appears, however, that this
interpretation is not of much assistance to the appellants, in
the circumstances of the case before us. According to the
general policy of the law, signature includes a mark
[See Pran Krishna Tewary v. Jadu Nath Trivedy)]: a mark
being a sort of symbolic writing. In the case before us the
question is whether the mark “” (Shree sahi) can be taken to
be the signature of the person whose name appears in the
document, Exhibit A, as the executant of the same. In our
judgment, the presumption of execution of the document being
in favour of the respondents, that presumption extends to this
also that the mark put on the same, indicated that the document
was signed by the executant, by a sort of symbolic writing,
which is to be taken to be the signature, in the absence of proof
to the contrary. In this view of case, the document, Exhibit A,
must be taken to have been signed by the executant and was
valid and operative as such; and its genuineness having been
established the document was a valuable piece of evidence
before the court, in support of the case for the respondents in
this appeal.”
21. It is also useful to refer the another judgment of the Calcutta High
Court in Pran Krishna Tewary and others vs Jadu Nath Trivedy reported in
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SA.Nos.274 & 275 of 2001
1898 SCC Online Cal 92. The relevant portion of the said judgment is as
follows:-
“We are of opinion that this contention is not correct,
and that there is no good reason for holding that a marksman
cannot be an attesting witness within the meaning of sec. 59 of
the Tranfer of Property Act and sec. 68 of the Evidence Act.
According to the general policy of our law, a signature
includes a mark—See the General Clauses Acts of 1887 and
1897 (Act I of 1887, sec. 3, clause 12, and Act X of 1897, sec.
3, clause 52), Act XIV of 1882, sec. 2 and Act III of 1877, sec.
3, and there is no reason why the case of a mortgage deed
should form an exception. It was argued that marks-men in this
country often only touch the pen, and even the mark, generally
a cross, is not made by them, but is made by the writer of the
deed. In this case, however, no question arises as to whether a
mark made by a person other than the witness can be
sufficient, the mark being shown to have been made by the
witness himself.”
22. However, the said Irusa Gounder has signed before the Sub
Registrar, which factum was admitted by PW2. On behalf of the defendant,
the another attestor was examined as DW3. Even in his evidence, he did not
dispute the thumb impression of Irusa Gounder. It was his contention that he
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SA.Nos.274 & 275 of 2001
did not read the document before he attest the Ex.A1-Sale Deed. Therefore,
this Court is of the indubitable view that Ex.A1 was duly executed and that
through Ex.A1, the plaintiff can have a right, title and ownership over the
property, provided she must establish anterior title. Similarly, if we look at
the title of Alamelu, where she has also sought for a declaration, she relies
upon the settlement deed, which is said to have been executed by her
husband. But admittedly, both Muthammal and Alamelu did not submit any
documents to show their anterior title.
23. It is pertinent to mention here that prior to filing of suit by
Alamelu, she has filed a suit in O.S.No.76 of 1982 for the relief of permanent
injunction against Muthammal, her husband and her children. In the said
suit, Smt.Alamelu contended that, she is in possession of the suit property. It
appears that the said suit was allowed to be dismissed for default on
02.08.1983, and in evidence thereof, the decree of the said suit has been filed
as Ex.A13. It was also the further contention of Alamelu that during 1985,
Muthammal forcibly took possession of the property, when Alamelu was not
in station. But to prove such act of forcible possession taken by Muthammal,
there are no evidence attached with spontaneity, such as police complaint or
any other complaint to any authority are submitted before this Court.
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SA.Nos.274 & 275 of 2001
24. The Trial Court has relied upon the Adangal extract, which stands
in the name of Muthu Padayachi under Ex.A37 and kist receipts, which has
been consistently paid by Muthammal and by relying patta stands in her
name under Ex.A2, has decreed the suit in favour of Muthammal.
25. On analysis of both oral and documentary evidence, admittedly the
plaintiffs of both the suits viz., Muthammal and Alamelu did not file any
document to substantiate their anterior title. However, admittedly
Muthammal is in possession of the suit property. Though forceful possession
pleaded by Alamelu, no document is available to prove the same. Apart from
that there is also patta stands in the name of Muthammal. However, the First
Appellate Court, only on the ground that there is no Irusa Gounder's
signature found place in Ex.A1 reversed the finding. The First Appellate
Court did not traverse into the findings recorded by the Trial Court in other
aspects. Therefore, this Court is of the firm view that the First Appellate
Court has not considered the pleadings and materials placed by the parties in
its right perspective.
26. However, this Court is of the firm opinion that by virtue of Ex.A1-
Sale Deed and Ex.A2-Patta, coupled with the possession with Muthammal,
the case put forth by Muthammal is probable under preponderance of
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probability. Therefore, this Court is of the firm view that the findings
recorded by the First Appellate Court is liable to be interfered with in view
of the above detailed discussion. Thus, the substantial question of law is
answered in favour of the appellants.
27. In the result, both the Second Appeals are allowed and thereby, the
judgment of the First Appellate Court in both the appeals are set aside by
restoring the judgment and decree of the Trial Court in both the suit. There
shall be no order as to costs.
22.12.2023
kmi
Index : Yes
Speaking Order : Yes
NCC : Yes/ No
To
1. The Subordinate Court,
Attur.
2. The District Munsif Court,
Attur.
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SA.Nos.274 & 275 of 2001
C.KUMARAPPAN,J
kmi
S.A.Nos.274 & 275 of 2001
22.12.2023
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