Madras High Court
Sarojini William vs S.William Immanuel Anbarasu @ ... on 26 July, 2023
AS.No.299 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26.07.2023
CORAM
THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
and
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
AS.No.299 of 2017
and
CMP.Nos.11250 of 2017, 5392 of 2018, 5393 of 2018,
21119 of 2022 and 14155 of 2023
Sarojini William .. Appellant
[Mrs.J.S.N.Nimmu Vasanth allowed to appear as
Power of Party-in-Person on behalf of the petitioner
Sarojini Williamm vide order of this Court
dated 31.01.2018 made in CMP.No.20804 of 2017
in AS.No.299 of 2017.]
Versus
1. S.William Immanuel Anbarasu @ William Singaram
2. R.Sureshkumar
3. Vedha Srinivasan .. Respondents
PRAYER: First Appeal filed under Order 41 Rule 1 r/w Section 96 of CPC
against the judgment dated 20.01.2017 made in O.S.No.163 of 2011 on the
file of the learned Principal District Court, Kanchipuram District at
Chengalpet.
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For appellant : Mr.D.Gurusamy
For respondents
for R1 : Ms.V.Anuradha
for R2 : Mr.Thyagarajan
for R3 : Ms.R.V.Gayathri
for M/s.P.B.Ramanujam Associates
JUDGMENT
[Judgment of the Court was delivered R.SUBRAMANIAN, J]
The plaintiff is on appeal aggrieved by the dismissal of the suit for
declaration and partition and the grant of money decree in her favour.
2. The facts that leading to the filing of the suit are as follows:
i) The first defendant is the husband of the plaintiff. They were
married in the year 1986 and even from the very beginning of the marital
life there was discord amongst them. However, the plaintiff chose to ignore
it for the sake of family.
ii) It is the claim of the plaintiff that she got jobs in Saudi Arabia and
Muscat and worked there for a few years. While doing so, she had taken
loan and sent monies to the husband to buy properties in Chennai. The
plaintiff worked overtime to clear the loans. According to the plaintiff many
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properties were purchased in the name of the plaintiff and her husband from
and out of the money earned by her and one such property is the suit
property situated at Sholinganallur.
iii) It is also claimed that the plaintiff wanted to take a job in U.K.,
but she got job in Australia. With the approval of the first defendant, the
entire family, including their son, migrated to Australia and they started
living in Australia. It is claimed that the first defendant compelled the
plaintiff to buy a property in Australia in both their names. After doing so,
he left Australia in January 2008 and settled in Chennai, leaving the plaintiff
and her son in Australia. After several attempts to patch up failed, she
approached the Federal Magistrate Court, Melbourne seeking divorce. The
said proceedings ended in a compromise on 29.03.2010, in and by which, it
was agreed that the property, which is the subject matter of the present suit,
should be sold by the first defendant and to facilitate such sale, the plaintiff
would execute a power of attorney in favour of the first defendant.
Accordingly, the plaintiff also executed the power of attorney in favour of
the first defendant on 01.10.2010 and the same was registered on
21.10.2010. Using the said power, the first defendant sold the property on
27.04.2011 to the second defendant.
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3. It is the contention of the plaintiff that the first defendant did not
receive any sale consideration and the sale executed by him in favour of the
second defendant itself is a sham and nominal document. In order to
buttress the contention, the plaintiff relys upon the fact that the first
defendant as the power agent of the second defendant had executed a sale
deed in favour of the third defendant on 01.08.2011. Though it is claimed
that the third defendant executed settlement deed in favour of the second
defendant on 13.05.2013, that appears to be a mistaken impression due to
identity of names. The third defendant had executed the settlement deed in
favour of her son, who is also a Sureshkumar.
4. The plaintiff attempts to correlate those documents to contend that
the sale deed executed by the first defendant in favour of the second
defendant on 27.04.2011 itself is vitiated and therefore it has to be declared
as null and void. Therefore, she should be given a half share in the property.
5. The suit was resisted by the defendant contending that the plaintiff
cannot question the sale and all that the plaintiff would be entitled to is
$114,475 Australian dollars as decided by the Melbourne Court under the
compromise order and nothing more. The plaintiff cannot assail the sale
deed.
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6. The Trial Court after framing necessary issues accepted the defence
and concluded that the plaintiff cannot assail the sale deed. The Trial Court
further found that the plaintiff would be entitled to a decree of money for
$114,475 Australian dollars or its equivalent value as on 27.04.2011 with
interest at 7.5% per annum from 01.05.2011 till realisation. Aggrieved over
the same, the plaintiff is on appeal.
7. Heard Mr.D.Gurusamy, learned counsel for the appellant,
Ms.V.Anuradha, learned counsel for the first respondent, Mr.Thyagarajan,
learned counsel for the second respondent and Ms.R.V.Gayathri, learned
counsel for the third respondent and perused the materials available on
record.
8. Mr.D.Gurusamy learned counsel for the appellant would
vehemently contend that from the facts it is clear that the purchaser under
Ex.A4 sale deed dated 27.04.2011 has chosen to appoint the vendor viz.,
first defendant as power agent and the first defendant as power agent of the
second defendant had sold the property to the third defendant on
08.08.2011, which would demonstrate that the sale deed dated, 27.04.2011
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is not supported by any consideration. He would also fault the first
defendant for not having tendered money.
9. Contending contra, Ms.V.Anuradha, learned counsel appearing for
the first respondent would submit that various correspondence that are
available would go to show that the first defendant had, in fact, offered
money but the plaintiff had not responded.
10. Be that as it may, we find that the very suit as framed is defective
and the prayers made therein cannot be granted. The consent order passed
by the Federal Magistrate Court of Melbourne is very clear. It requires the
plaintiff to execute the power of attorney in favour of the first defendant
permitting the first defendant to deal with the property and requires the first
defendant to pay a fixed sum which is non negotiable to the plaintiff
towards her share of the property. Once the share of the plaintiff is
determined as a fixed sum, the plaintiff cannot question the wisdom of the
first defendant in selling the property either for a lower or a higher price.
Whatever price that the property is sold, the plaintiff would be entitled to get
her share, which has been quantified as $114,475 Australian dollars. Even
assuming that the first defendant had not received any consideration for the
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sale deed, the plaintiff cannot question the same. We are not for a moment
concluding that the sale deed is without consideration. The sale deed is a
registered instrument it contains endorsements made by the Registrar under
Section 58 and Sub-section 2(60) of the Act, creates presumption as to the
correctness of the endorsements. Of course, the said presumption is a
rebuttable presumption and unless there is an evidence to rebut the said
presumption, the Court has to accept and act on the presumption. The
evidence of the plaintiff is totally insufficient to conclude that the plaintiff
has tendered enough evidence to rebutt the presumption as she had
examined herself only. Admittedly, she was residing in Australia at the
relevant point of time and therefore, she has no competence to speak about
the happenings in the Registrar's office at that time. Mere fact that the
purchaser chose to appoint the first defendant as an agent to deal with the
property, and the first defendant as an agent of the second defendant had
sold the property to the third defendant in August 2011 will not by itself
lead to the presumption that the sale deed dated 27.04.2011 is without
consideration or it is invalid. The Trial Court has rightly concluded that the
sale deed is valid.
11. The Trial Court has however invoked the principles of equity and
granted money decree in favour of the plaintiff for the value of $114,475
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Australian dollars as on 27.04.2011 with interest at the rate of 7.5% per
annum till realization. The Court also directed the plaintiff to pay Court Fee.
This Court finds no reason to interfere with the conclusions of the Trial
Court.
12. Though earnest effort was made by the learned counsel for the
appellant to project the case of deceit on the part of the first defendant, in
the absence of any evidence and in view of the fact that the consent order of
the Court at Federal Magistrate at Melbourne is so clear, we do not think we
can interfere with the conclusions of the Trial Court. The appeal therefore
fails and accordingly dismissed. It is open to the plaintiff to pay Court Fee
and seek execution of the decree. No costs. Consequently, connected
miscellaneous petitions are closed.
(R.S.M.J.) (R.K.M.J.)
26.07.2023
Index : No
Speaking order: Yes
pvs
To
The Section Officer,
VR Section High Court, Madras.
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AS.No.299 of 2017
R.SUBRAMANIAN, J.
and
R.KALAIMATHI, J.
pvs
AS.No.299 of 2017
26.07.2023
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