Madras High Court
Murugesan vs Narayanavadivoo on 30 March, 2023
S.A.(MD)No.550 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 30.03.2023
CORAM:
THE HONOURABLE MR.JUSTICE ABDUL QUDDHOSE
S.A.(MD)No.550 of 2017
and
C.M.P.(MD)No.11879 of 2017
Murugesan ... Appellant
/Vs./
Narayanavadivoo ... Respondent
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code to set aside the Judgment and Decree dated 21.09.2016 made in
A.S.No.103 of 2013 on the file of the I Additional Subordinate Judge at
Nagercoil, confirming the judgment and decree dated 03.09.2013 made
in O.S.No.821 of 2009 on the file of the Principal District Munsif,
Nagercoil and allow this second appeal.
For Appellant : Mr.P.Thiagarajan
For Respondent : Mr.Vashik Ali
for M/s.Murugan
1/22
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S.A.(MD)No.550 of 2017
JUDGMENT
This Second Appeal has been filed challenging the concurrent
findings of the Courts below. The parties are described as per the
litigative status in the suit. The plaintiff in the suit is the appellant
herein. The suit in O.S.No.821 of 2009 was filed on the file of the
Principal District Munsif Court, Nagercoil, against the respondent /
defendant seeking for the relief of declaration of title, recovery of
possession, future mesne profits and for permanent injunction. The suit
schedule property is the house site having an extent of 2.333 cents out of
7 cents in S.No.1639, Iravipudur Village, Agastheeswaram Taluk,
Kanyakumari District.
2. The case of the plaintiff as seen from the plaint are as follows:
(a) He is an adopted son of Kamalachi;
(b) According to the plaintiff, the suit schedule property originally
belonged to one Subramania Nadar and he had sold the said property in
favour of Kamalachi under sale deed dated 11.11.1982 (Ex.B1);
(c) Kamalachi executed a registered settlement deed dated
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11.11.1982 (Ex.A1) in favour of the plaintiff, who is her adopted son
retaining her enjoyment of the suit schedule property till her lifetime;
(d) According to the plaintiff, the suit schedule property was
purchased by Kamalachi under the sale deed dated 11.11.1982 (Ex.B1)
only out of his own income in the name of Kamalachi out of his natural
love and affection towards her. Thereafter, the plaintiff claims that he
has got the suit schedule property by virtue of settlement deed dated
11.11.1982 (Ex.A1) executed on the very same date by Kamalachi;
(e) The plaintiff claims that in the suit schedule property, a house
bearing Door No.6/95 was constructed and Kamalachi, her husband, Paul
Nadar and their youngest daughter, the defendant herein and the plaintiff
as adopted son were residing;
(f) Kamalachi, died on 04.04.1992. According to the plaintiff, he
permitted the defendant and her father to reside in the suit schedule
property, though the settlement deed dated 11.11.1982 (Ex.A1) was given
effect to and acted upon, pursuant to the death of Kamalachi as early as
on 04.04.1992; and
(g) According to the plaintiff, Paul Nadar died on 20.10.2009 and
thereafter, the plaintiff requested the defendant to vacate and hand over
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S.A.(MD)No.550 of 2017
possession of the suit schedule property to him and the same was refused.
Only under such circumstances, the suit in O.S.No.821 of 2009 came to
be filed.
3. However, as seen from the written statement filed by the
defendant in the suit, her defence is as follows:
(a) She has denied the title of the plaintiff over the suit schedule
property based on the settlement deed dated 11.11.1982 (Ex.A1)
allegedly executed by Kamalachi in favour of the plaintiff;
(b) According to the defendant, Kamalachi purchased the suit
schedule property on 11.11.1982 (Ex.B1) and she had put up a small
house after her purchase and she was residing with her family eversince
the purchase;
(c) According to the defendant, Kamalachi allowed her husband
and the defendant to live with her;
(d) The plaintiff was never an adopted son of Kamalachi as
pleaded in the plaint;
(e) During 2007, the house in the suit property fell down due to
heavy rain. The defendant had put up foundation for a new house and
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due to paucity of funds, further construction was not carried out; and
(f) The settlement deed dated 11.11.1982 (Ex.A1) alleged to have
executed by Kamalachi in favour of the plaintiff has been obtained by
fraud and therefore, the said document cannot be relied upon by the
plaintiff to prove his title over the suit schedule property.
4. The trial Court based on the pleadings of both the parties,
framed the following issues:
(a) Whether the plaintiff is having lawful right over the suit
schedule property?
(b) Whether the plaintiff is entitled for the relief of declaration of
title?
(c) Whether the plaintiff is entitled for the relief of recovery of
possession?
5. Before the trial Court, the plaintiff filed 13 documents, which
were marked as Exs.A1 to A13 and the plaintiff examined himself as
P.W.1. On the side of the defendant, 12 documents were marked, namely,
Exs.B1 to B12 and the defendant was examined as D.W.1 and another
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person, by name, Thangadurai, was examined as D.W.2. Based on the
oral and documentary evidence available on record, the trial Court
dismissed the suit filed by the plaintiff by giving the following reasons:
(a) The plaintiff failed to prove that he is an adopted son of
Kamalachi and Paul Nadar;
(b) No explanation has been given by the plaintiff for the purchase
of suit schedule property and execution of the settlement deed dated
11.11.1982 (Ex.A1) in favour of the plaintiff by Kamalachi on the very
same date and as such, the case of the defendant that Ex.A1 settlement
deed was obtained by fraud from Kamalachi by the plaintiff has to be
accepted;
(c) The plaintiff failed to produce the sale deed executed in favour
of Kamalachi, but the defendant has produced the original sale deed
standing in the name of Kamalachi, which has been marked as Ex.B1.
The plaintiff has also not produced the original settlement deed dated
11.11.1982 (Ex.A1), but instead has filed only the certified copy of the
said document. The plaintiff has failed to prove that Ex.A1 settlement
deed is a valid settlement deed;
(d) The plaintiff failed to prove that the house tax receipts
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produced and marked as Ex.A3 are relating to the suit schedule property
house, as Kamalachi purchased only a vacant site. No details have been
offered by the plaintiff as to when the building was put up therein and by
whom, it was constructed. Ex.A4, EB receipts are only of the year 2009.
Ex.A12, patta standing in the name of the plaintiff was also obtained by
him only in the year 2009, whereas the defendant has obtained patta in
her name, even prior to 2009; and
(e) The defendant and her father are residing in the suit schedule
property and the defendant's father has also executed Ex.B2, settlement
deed dated 15.11.2006 and the plaintiff has not claimed any relief as
against Ex.B2 settlement deed in the suit.
6. The learned counsel appearing for the plaintiff drew the
attention of this Court to Section 92 of the Indian Evidence Act, 1872
and would submit that there is a legal bar for letting in any oral evidence
by the defendant with regard to the contents of a document. He would
submit that it is for the defendant to establish by letting in oral and
documentary evidence that the settlement deed dated 11.11.1982 (Ex.A1)
standing in the name of the plaintiff has been obtained by fraud.
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7. Section 92 of the Indian Evidence Act, 1872 reads as follows:
“Section 92. Exclusion of evidence of oral
agreement.- When the terms of any such contract, grant or
other disposition of property, or any matter required by law
to be reduced to the form of a document, have been proved
according to the last section, no evidence of any oral
agreement or statement shall be admitted, as between the
parties to any such instrument or their representatives in
interest, for the purpose of contradicting, varying, adding
to, or subtracting from, its terms:
Proviso (1). - Any fact may be proved which would
invalidate any document, or which would entitle any
person to any decree or order relating thereto; such as
fraud, intimidation, illegality, want of due execution, want
of capacity in any contracting party, 1[want or failure] of
consideration, or mistake in fact or law.
Proviso (2). - The existence of any separate oral
agreement as to any matter on which a document is silent,
and which is not inconsistent with its terms, may be proved.
In considering whether or not this proviso applies, the
Court shall have regard to the degree of formality of the
document.
Proviso (3). - The existence of any separate oral
agreement, constituting a condition precedent to the
attaching of any obligation under any such contract, grant
or disposition of property, may be proved.
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Proviso (4). - The existence of any distinct
subsequent oral agreement to rescind or modify any such
contract, grant or disposition of property, may be proved,
except in cases in which such contract, grant or disposition
of property is by law required to be in writing, or has been
registered according to the law in force for the time being
as to the registration of documents.
Proviso (5). - Any usage or custom by which
incidents not expressly mentioned in any contract are
usually annexed to contracts of that description, may be
proved:
Provided that the annexing of such incident would not be
repugnant to, or inconsistent with, the express terms of the
contract.
Proviso (6). - Any fact may be proved which shows
in what manner the language of a document is related to
existing facts.”
8. As seen from the aforesaid Section, it is clear that only when the
settlement deed dated 11.11.1982 (Ex.A1) standing in the name of the
plaintiff has been proved by him, there cannot be any further oral
evidence contrary to the contents of the document that can be let in by
the defendant. Admittedly, the defendant has disputed the settlement
deed dated 11.11.1982 (Ex.A1) standing in the name of the plaintiff and
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she has pleaded that the said settlement deed has been obtained by fraud
in the written statement. The following circumstances also support the
case of the defendant that the settlement deed (Ex.A1) has been obtained
by fraud:-
(a) Though the plaintiff has claimed in the plaint that he is the
adopted son of Kamalachi, who has executed the settlement deed dated
11.11.1982 (Ex.A1), he has not filed any documentary evidence to
support his stand that he is a legally adopted son of Kamalachi;
(b) Kamalachi purchased the suit schedule property on 11.11.1982
under Ex.B1. On the very same date, Kamalachi has executed a
registered settlement deed dated 11.11.1982 (Ex.A1) in favour of the
plaintiff and in the recitals to the said settlement deed, it is mentioned
that the plaintiff is the son of Kamalachi;
(c) The plaintiff has pleaded in the plaint that the suit schedule
property was purchased out of his money in the name of Kamalachi
under the sale deed dated 11.11.1982 (Ex.B1). However, on the very
same date, he has also got a settlement deed dated 11.11.1982 (Ex.A1)
executed in his favour by Kamalachi. There was no necessity for the
plaintiff to get a settlement deed executed in his favour on the very same
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date, ie., on 11.11.1982 out of natural love and affection. He claims that
out of his own funds, he had purchased the suit schedule property in the
name of Kamalachi under the sale deed dated 11.11.1982 (Ex.B1). The
sale deed dated 11.11.1982 standing in the name of Kamalachi (Ex.B1)
and the subsequent settlement deed standing in the name of the plaintiff
(Ex.A1) are of the same date and therefore, the statement made by the
plaintiff that only out of his money, he had purchased the suit schedule
property in the name of Kamalachi, dated 11.11.1982 (Ex.B1) is
unbelievable and the trial Court has rightly rejected the said contention.
(d) When the property was purchased by Kamalachi under the sale
deed dated 11.11.1982 (Ex.B1), it was only a vacant site. The property
was purchased in the year 1982 and the alleged settlement deed was also
executed on the very same date as that of the sale deed, in favour of the
plaintiff. But, however the suit was filed by the plaintiff only in the year
2009, which is the subject matter of this Second Appeal. No evidence
has been let in by the plaintiff as to how the building came into existence
and thereafter, who had constructed the same, at whose costs, though the
suit schedule property comprises the constructed portion as well.
(e) Under Section 10 (iv) of the Hindu Adoptions and Maintenance
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Act, 1956, under normal circumstances, a person cannot be taken in
adoption, if the said person has completed the age of 15 years, unless
there is a custom or usage applicable to the parties, which permits the
person, who has completed the age of 15 years to be taken in adoption.
Admittedly, as seen from the pleadings as well as the oral and
documentary evidence of the plaintiff, he was aged 24 years at the time
of execution of the settlement deed dated 11.11.1982 (Ex.A1) in his
favour by Kamalachi. Therefore, Kamalachi could not have legally taken
the plaintiff as her adopted son through a valid adoption. Section 92 of
the Indian Evidence Act, 1872, which has been extracted supra and was
relied upon by the learned counsel appearing for the plaintiff will not
apply to the documents, which have not been proved. Here is a case,
where the defendant has pleaded in her written statement that the
settlement deed dated 11.11.1982 (Ex.A1) standing in the name of the
plaintiff has been obtained by fraud and the circumstances pleaded by the
defendant, which have been referred to supra also make the Court to
undoubtedly believe that the said documents have been obtained by
fraud;
(f) Further, as seen from the documents marked as exhibits on the
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side of the plaintiff, he has only filed certified copy of the settlement
deed, dated 11.11.1982 (Ex.A1) and he has not filed the original of the
same. However, the parent documents including the original of the sale
deed dated 11.11.1982 standing in the name of Kamalachi, from whom
the plaintiff alleges to have got the settlement deed under Ex.A1 has also
been marked as an exhibit only on the side of the defendant, as they were
having custody of the same.
9. The initial burden of proof as per the provisions of Section 101
of the Indian Evidence Act, 1872, is on the plaintiff to prove that he is
entitled for the suit claim. In the instant case, the plaintiff has filed a suit
for declaration of title, recovery of possession, future mesne profits and
for permanent injunction. When the defendant has alleged in her written
statement that the plaintiff was never adopted by Paul Nadar and
Kamalachi and the settlement deed dated 11.11.1982, which was
executed on the very same date of the parent sale deed dated 11.11.1982
is a fabricated document and has been obtained by fraud, it is for the
plaintiff to establish through oral and documentary evidence that he is
infact the legally adopted son of Paul Nadar and Kamalachi and the
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settlement deed dated 11.11.1982 was also legally executed in his favour
by Kamalachi.
10. The surrounding circumstances, namely a) non production of a
legally valid document either in the form of a Court order or any other
legally acceptable documents to prove that the plaintiff was legally
adopted as a son by Paul Nadar and Kamalachi and b) when the
settlement deed was executed in plaintiff's favour on the very same date
of the parent sale deed ie., on 11.11.1982 and that too when the plaintiff
has pleaded that only out of his funds, the property was purchased under
the sale deed dated 11.11.1982 in the name of Kamalachi, will certainly
make any person having average intelligence to come to the conclusion
that the settlement deed dated 11.11.1982 obtained by the plaintiff has
been obtained by fraudulent means and is a fraudulent document.
11. Though the general rule under Section 92 of the Indian
Evidence Act, 1872 is that no oral evidence can be given contradicting
the terms of the recitals contained in a document, but proviso (1) to (6) of
the said Section provides for exceptions to the said general
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rule. One such exception is fraud as seen from proviso (1). The
defendant has categorically pleaded that the settlement deed was
obtained by fraud in her written statement and has also made the Court to
undoubtedly believe in view of the surrounding circumstances as
observed supra that the said document has been obtained by fraud.
12. As the initial burden of proof to prove the suit claim is vested
with the plaintiff and the plaintiff in the instant case has not discharged
his initial burden as he has failed to prove through oral and documentary
evidence that he is a legally adopted son of Kamalachi and he has also
failed to remove the suspicion, any person of average intelligence will
have about the valid execution of the document, where a party claims
that out of his natural love and affection, he had purchased a property in
the name of his mother out of his income, but on the very same date of
the purchase in the name of his mother under a sale deed, he has also got
a settlement deed executed in his favour from his mother.
13. The Hon'ble Supreme Court of India, in the case of Placido
Francisco Pinto (D) By Lrs and Another versus Jose Francisco Pinto
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and Another reported in 2021 SCC OnLine SC 842 has made it clear
that the oral evidence of a written agreement, which is asserted by one of
the parties to be obtained by fraud, he can let in oral evidence for the
purpose of proving his case that the said agreement has been obtained by
fraud. Therefore, there is an exception to the general rule under Section
92 of the Indian Evidence Act, 1872, to the cases, where the agreement
has been obtained by fraud. In such a case, the party, who pleads fraud is
allowed to let in oral evidence with regard to the contents of the alleged
fraudulent document. In the case on hand, the defendant has
categorically asserted that the plaintiff is not the son of Kamalachi and
the settlement deed executed in his favour is also a fraudulent document,
which has also made the Courts below to undoubtedly believe based on
the oral and documentary evidence available on record that the said
document has been obtained by fraud. Therefore, letting oral evidence
by the defendant with regard to the recitals as well as the terms and
conditions of the settlement deed will fall under the proviso (1) to
Section 92 of the Indian Evidence Act, 1872 and therefore, it falls under
the exception category to the general rule that no oral evidence is
permissible to be let in with regard to the contents of a proved document.
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14. The decisions relied upon by the learned counsel appearing for
the appellants in the cases of Ramti Devi vs. Union of India reported in
1995 1 SCC 198 and Rakkammal vs. P.R.Meyappan Ambalam and
others reported in 1991 2 L.W 491 will also not assist the plaintiff's case,
as only based on the oral and documentary evidence available on record,
the Courts below have given a correct finding that the plaintiff is not a
legally adopted son of Kamalachi and that the settlement deed dated
11.11.1982 (Ex.A1) standing in the name of the plaintiff has been
obtained by fraud.
15. Unless and until the Courts below had misdirected itself by
wrongly applying the evidence available on record, this Court by
exercising its jurisdiction under Section 100 of C.P.C., can interfere with
the findings of the Courts below. Since the Courts below have rightly
given its findings, which are based on the oral and documentary evidence
available on record, this Court cannot interfere with the said findings, as
there is no infirmity in the same. Therefore, the decision relied upon by
the learned counsel appearing for the appellant in Krishna Mohal Kul @
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Nani Charan Kul vs Pratima Maity reported in 2003 9 SCC 468 also
does not support the case of the plaintiff, in view of the fact that the
Courts below have not misdirected themselves by wrongly appreciating
the oral and documentary evidence available on record.
16. For the foregoing reasons, this Court is of the considered view
that the trial Court has rightly dismissed the suit, as the plaintiff has not
been able to prove his title over the suit schedule property and this Court
does not find any infirmity in the findings of the trial Court. The lower
appellate Court, namely the I Additional Subordinate Court, Nagercoil,
by its Judgment and Decree dated 21.09.2016, has also rightly confirmed
the findings of the trial Court by dismissing the first appeal filed by the
plaintiff by holding that the plaintiff has failed to prove that he is an
adopted son of Kamalachi and Paul Nadar and the plaintiff has also failed
to prove that Ex.A1 settlement deed is a true and a valid document. This
Court, while admitting the second appeal on 21.12.2017, had formulated
the following substantial questions of law:-
“1. Whether the Courts below right placing the
burden of proof on the plaintiff to prove that he is an
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adopted son of Paul Nadar and Kamalachi, whereas the
said fact has been established by the plaintiff by
producing Exhibit A-1, the registered settlement deed,
dated 11.11.1982 executed by Kamalachi?
2. When the plaintiff has proved his possession and
title by producing the documents in Ex.A1 to A13, whether
the Courts below were right in dismissing the suit?
3. Whether the Courts below were right in give a
finding against the Exhibit A-1, registered settlement deed
by Kamalachi executed in favour of the plaintiff ignoring
the provision under Section 92 of Indian Evidence Act?
4. Whether Courts below were right in dismissing
the suit upon framing an unnecessary issue, with regard to
the adoption of plaintiff without going into the scope and
validity of Ex.A1 settlement deed, only on the basis of
which the present suit came to be filed?”
17. Having failed to prove that the plaintiff is the adopted son of
Kamalachi and Paul Nadar and having failed to prove that Ex.A1
registered settlement deed dated 11.11.1982 executed by Kamalachi is a
valid and genuine document and having failed to prove that he is in
possession of the suit schedule property and in view of the fact that the
surrounding circumstances also make this Court to undoubtedly believe
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that the settlement deed dated 11.11.1982 (Ex.A1) standing in the name
of the plaintiff has been obtained by fraudulent means, this Court
answers the substantial questions of law extracted supra against the
plaintiff, as the Courts below have rightly held that the suit claim has not
been proved by the plaintiff. This Court does not find any infirmity in
the findings of the Courts below. Accordingly, this Second Appeal is
dismissed. No costs. Consequently, connected Miscellaneous Petition is
closed.
30.03.2023
Index : Yes / No
NCC : Yes / No
Sm
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S.A.(MD)No.550 of 2017
TO:
1.The I Additional Subordinate Judge at Nagercoil.
2.The Principal District Munsif, Nagercoil.
3.The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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ABDUL QUDDHOSE, J.
sm
Judgment made in
S.A.(MD)No.550 of 2017
Dated:
30.03.2023
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