[Cites 18, Cited by 0]
Madras High Court
T.Tharmaraj Pandian (Died) vs R.Ayyammal on 30 April, 2026
SA(MD). No.467 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 20.04.2026
Delivered on: 30.04.2026
CORAM
THE HONOURABLE MR. JUSTICE P.B.BALAJI
SA(MD). No.467 of 2020
and
CMP(MD) No.5396 of 2020
T.Tharmaraj Pandian (Died),
1.T.Lakshmi
2. A. Sudhanthirathileepan,
3. C. Selvaraj,
4. P. Sakthivel, ... Petitioners/ Appellants 1 to 4/
Respondents 2 to 5/ Defendants 2 to 5
5. T. Athibagavan,
... Proposed 5th Appellant
Vs.
1. R.Ayyammal,
2. V. Lakshmi, ... Respondents / Respondents/ Appellants /
Plaintiffs
PRAYER :- Second Appeal is filed under Section 100 CPC, to call for
the records and to set aside the judgment and decree dated 18.11.2019
passed in AS No. 92 of 2019 on the file of the learned Subordinate Judge,
Manamadurai and to confirm the judgment and decree dated 22.08.2014
1/26
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SA(MD). No.467 of 2020
passed in OS. No. 3 of 2010 on the file of the learned Principal District
Munsif Court, Manamadurai.
For Appellants : Ms.T.Shiva Shree
for Mr.B.Ramanathan,
For Respondents : Mr.V.N.Arjun
For Mr.N.Vallinayagam,
JUDGMENT
The defendants 2 to 5 in O.S.No.3 of 2010 are the appellants,
aggrieved by the reversal findings rendered by the first appellate Court.
2. I have heard Ms.T.Shiva Shree, for Mr.B.Ramanathan, learned
counsel for the appellants and Mr.V.N.Arjun, for Mr.N.Vallinayagam,
learned counsel for the respondents.
3. For the sake of convenience, the parties are referred to as per
their rank before the trial Court.
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4. The second appeal was admitted by this Court on 06.11.2020 on
the following substantial questions of law:
“a. Whether the learned first appellate Court is
right in allowing the appeal filed by the
plaintiffs/respondents without considering the filing of
the suit itself is barred by limitation as contemplated
under Articles 58, 59 and 65 of the Law of Limitation
Act, 1965?
b. Whether the learned first appellate Court is
right in rejecting the documents filed on the side of the
Appellants/Defendants that is Exhibits B2 and B3 and
as to whether those documents are valid in the eye of
law especially they are admitted by the
respondents/plaintiffs?
c. Whether the first appellate Court is right in
accepting the case of the Respondents/Plaintiffs when
they have admitted the entrustment of the possession of
the properties in the life time of their father that is
much earlier to the original suit?
d. Whether the benefits and credibility
contemplated under section 90 of the Indian Evidence
Act is applicable to Exhibits B-2 and B-3?
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e. Whether Section 54 of Transfer of Property Act
is applicable to the case of the Appellants/Defendants?
f. Whether the totality of the case is rightly
considered by the learned first Appellate Court or
not?”
5. Brief facts that are necessary for deciding the second appeal are
as hereunder:
5.1. An extent of 32 cents comprised in survey No.52/1, originally
belonged to one Thandi Thevar, who is the grand father of the plaintiffs
and another extent of 30 cents comprised in survey No.52/2 belonged to
one Rasu thevar, who is the father of the plaintiffs, who had purchased
the same under sale deed dated 18.05.1951. According to the plaintiffs,
the entire extent of 62 cents was a single lot. After the life time of the
father of the plaintiffs, viz., Rasu Thevar, his wife/ Ponnammal and the
plaintiffs /daughters, enjoyed the property in common and subsequent to
the demise of the mother / Ponnammal, the plaintiffs have been in
possession and enjoyment of the property and there are 30 coconut trees
available in the property. According to the plaintiffs, they being women,
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they had appointed the first defendant to take care of the cultivation and
the first defendant was also giving yields to the plaintiffs. However, the
first defendant attempted to mutate the revenue records in his name.
Hence, the plaintiffs sent a legal notice to the 1st defendant on 09.11.2009
and the same was received by the first defendant on 11.11.2009. As the
first defendant failed to reply and also hand over possession of the suit
property, the plaintiffs were constrained to file the suit for declaration of
their title and for recovery of possession.
5.2. The suit was resisted by the defendants stating that the
properties comprised in survey No. 52/1 were not belonging to the
grandfather of the plaintiffs as claimed in the plaint, but, it was
purchased by Rasu Thevar under sale deed dated 15.08.1952 and even
during his life time, the father of the plaintiffs, on 13.08.1977 had agreed
to sell the said 64 cents to the 1st defendant by way of a sale agreement
and subsequently in and by registered sale deed dated 15.10.1978, the
plaintiffs' father along with the plaintiffs sold the entire extent to the first
defendant. The first defendant has also obtained patta in the UDR
scheme and he has paid taxes to the Government. The first defendant also
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mortgaged the property in favour of one Puspavalli, which was
redeemed on 22.03.2005. Thereafter, he once again mortgaged the
property to one Palanisamy on 29.03.2005, which was also redeemed on
08.02.2008. The plaintiffs were fully aware of the enjoyment of the
property by the first defendant. The first defendant has also executed a
settlement deed on 03.10.2007 in respect of 10 cents to his
daughter/Atheeswari. The first defendant thereafter settled 10 cents to his
grand son, viz., Suthanthirathileepan/ third defendant, by way of a
settlement deed dated 03.10.2007. Subsequently, he settled another
extent of 10 cents vide settlement deed dated 24.11.2009. As the said
Atheeswari died, the first defendant cancelled the said settlement deed
on 27.11.2009. after the death of Atheeswari and the first defendant
executed a fresh settlement deed in respect of 10 cents in favour of the
3rd defendant. The third defendant therefore claimed to be in possession
of 30 cents ,and the same was subdivided in to survey No.52/1B and
revenue records were mutated in the name of the third defendant. The
first defendant also settled on the second defendant, an extent of 10
cents, which was subdivided as survey No.52/1A and patta has also been
issued in her name. The first defendant sold 22 ½ cents under a sale deed
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dated 08.02.2008, to one Selvaraj, who in turn, sold the same to the 5 th
defendant/Sakthivel, by way of a sale deed on 21.01.2009. The plaintiffs
therefore have no right over the suit property.
6. On the above pleadings, the trial Court framed the following
issues.
“1) Whether the plaintiffs are entitled to the suit
property?
2) Whether the plaintiffs are estopped by estoppel
for deed ?
3) Whether the suit is bad for noh-joinder of
necessary party?
4) Whether the plaintiffs are entitled to the relief
of declaration and
recovery of possession?
5) To what relief?”
7. At trial, the first plaintiff has examined herself as P.W.l and two
other witnesses as P.W.2 and P.W.3 and 7 documents were marked as
Ex.Al to Ex.A7. On the side of the defendants, the defendants 1,2 and 4
examined themselves as D.W.l to D.W.3 and independent witnesses were
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examined as DW4 and DW5 and 23 documents were marked as Ex.Bl to
Ex.B23 documents.
8. The trial Court dismissed the suit. Against the same, the
plaintiffs preferred an appeal in A.S.No.92 of 2019 before the
Subordinate Court, Manamadurai. The first appellate Court allowed the
appeal and decreed the suit, holding that long possession of the
defendants would not give any legal right and the plaintiffs were entitled
to reliefs as prayed for, since they had established title and were
consequently entitled to the relief of possession.
9. Against the reversal findings of the first appellate Court, the
defendants filed the second appeal.
10. Arguments of Ms.T.Shiva Shree, learned counsel for appellants:
10.1. Ms.T.Shiva Shree, learned counsel for the appellants would
take me through the pleadings and the documents that had been exhibited
before the trial Court and relying on the unregistered sale agreement as
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well as unregistered sale deed, which were marked as Ex.B2 and Ex.B3,
the learned counsel would bring to my notice that the plaintiffs
themselves were witnesses to Ex.B2 and they were estopped from
denying the factum of possession being handed over to the first
defendant. She would also rely on the patta mutated in the name of the
first defendant and the exercise of ownership rights by various mortgages
and redemption of the same (Ex.B6 to Ex.B9). She would further contend
that admittedly, the plaintiffs are from the same village and they were
fully aware of the fact that the first defendant was enjoying the property
as owner and at no point of time, the plaintiffs have chosen to question
the same and they cannot take advantage of the fact that the plaintiffs
attempted to get mutation of revenue records, giving rise to a cause of
action. She would further state that having been witnesses to the
unregistered sale deed in favour of the first defendant executed by her
father, the plaintiffs cannot feign ignorance about the first defendant
being put in possession of the suit property and invent a cause of action
to bring the suit within the law of limitation. She would further state that
for over the statutory period of 12 years, the first defendant has been in
open, continuos, and hostile possession and therefore, even if no right
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accrued under the unregistered sale deed (Ex.B2), the first defendant has,
in any event, perfected his title to the suit property by adverse possession
and therefore, the plaintiffs cannot claim the relief of declaration and
consequential relief of recovery of possession, which were hopelessly
time barred. She would further state that the plaintiffs had also miserably
failed to prove their case that the first defendant was a permissive
occupant and he was only as lead to manage the cultivation of the suit
property and the first appellate Court ought not to have decreed the suit,
having confirmed the findings of the trial Court that the plaintiffs had not
established permissive possession. She would further state that the
amendment of Transfer of Property Act had also come into force only on
24.09.2009, mandating registration of agreements in order to claim
protection Section 53-A and in the present case, the agreement was prior
to the date of amendment and hence, the defendants cannot be non-suited
on the ground of the plea of part performance being claimed under an
unregistered agreement of sale, followed by an unregistered sale deed.
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10.2. The learned counsel for the appellants has relied on the
following decisions of the Hon'ble Supreme Court:
(i) Bondar Singh and others v. Nihal Singh and others, reported
in 2003-4-SCC-141;
(ii) Oswal Fats and Oil Limited v. Additional Commissioner
(Administration) Bareilly Division, reported in 2010-4-SCC-728.
11.Arguments of Mr.V.N.Arjun, learned counsel for the respondents:
11.1. Per contra, Mr.V.N.Arjun, learned counsel for the
respondents would submit that the first appellate Court has rightly
decreed the suit, reversing the erroneous and perverse finding rendered
by the trial Court.
11.2. The learned counsel for the respondents has relied on the
following decisions of this Court:
(i) N.V.Nageswara Aiyar v. Alagu Srinivasa Aiyangar (dead),
reported in 1926-23-LW-675;
(ii) D.Balachandran, Prop. Of Balu Tex v. T.C.Shanmugam,
reported in 2013-2-CTC-832; and
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(iii) N.Pandurangan v. N.Kannaboss, reported in 2019-6-
MLJ-241.
11.3. The learned counsel for the respondents would contend that
the defendants cannot rely on unregistered documents, especially a sale
deed under which they claimed absolute right and interest. He would
therefore state that no interference is warranted in the second appeal.
12. I have carefully considered the submissions advanced by the
learned counsel for the appellants as well as the learned counsel for the
respondents.
13. Discussion:
13.1. The case on which the plaintiffs approached the Court was
that they were the owners of the suit property, having inherited the same
from their father and they had entrusted the property with the first
defendant for taking care of the same, including the cultivation of
coconut trees. It was their further case that the first defendant, in
furtherance of the permission, was managing the suit property and giving
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yield to the plaintiffs. However, no evidence insofar as the said plea of
permissive possession or entrustment of the suit property for
management was let in. Both the trial Court as well as the first appellate
Court have rightly found that the plaintiffs have not established the plea
of permissive possession of the first defendant. It is only on the basis of
the alleged permissive possession of the first defendant that the suit came
to be filed, alleging that taking undue advantage of the permission, the
first defendant was attempting to get patta in his name.
13.2. However, it is the case of the defendants that even during the
life time of the father of the plaintiffs/Rasu Thevar, the first defendant
was put in possession under an unregistered sale deed, in and by which,
the said Rasu Thevar has sold the property to the first defendant.
According to the first defendant eversince, the first defendant has been in
peaceful possession and enjoyment and has also mutated revenue records
in his name.
13.3. On the side of the plaintiffs, no documents have been
exhibited to establish the fact the suit property was mutated in the name
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of the plaintiffs, subsequent to the original mutation in the name of their
grand father/ Thandi Thevar and subsequently, their father/Rasu Thevar.
On the other hand, the defendants have produced voluminous
documentary evidence to establish the fact of continuous possession and
enjoyment of the suit property, exercising their rights as mortgagors over
the said property, besides also mutation of revenue records in favour of
the defendants 1 and 2.
13.4. The main questions that needs to be addressed are as to
whether the defendants are entitled to resist the suit claim on the ground
that they have perfected title by way of adverse possession and whether
the suit is barred by limitation. Also, it is to be seen whether the
unregistered sale deed will confer any right on the defendants to defeat
the plaintiffs claim for declaration and recovery of possession.
13.5. With regard to the issue of adverse possession, from the
written statement, it is seen that there is no specific plea of adverse
possession, however, there is sufficient material in the written statement
to gather that the first defendant had clearly set up a plea of adverse
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possession stating that right from 1978, the first defendant has been in
possession of the property and that he has mutated the revenue records in
his name and also paying taxes in his name, besides also mortgaging the
property to various persons and subsequently, redeeming the same as
well. The first defendant also executed settlement deeds in favour of his
children, who have obtained patta in their names and subdivisions have
also been effected. The plaintiffs, being witnesses to the unregistered sale
deed, were clearly aware of the fact that their father had initially agreed
to sell the property to the first defendant and thereafter, for consideration,
had also sold the property and put up the first defendant in possession the
same was way back in 1977 (agreement of sale) and 15.10.1978
(unregistered sale deed). The plaintiffs have not taken any steps to
question the enjoyment of the suit property by the first defendant to the
detriment of the plaintiffs, despite having attested the unregistered sale
deed executed by their father on 15.10.1978, the plaintiffs have not
exhibited any material documents to establish that they had exercised
rights as owners of the suit property by payment of taxes to the revenue
authorities.
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13.6. As rightly held by the first appellate Court when, the case of
the defendants was under Ex.B3, an unregistered sale deed, claiming title
with the first defendant, then, the plea of adverse possession has to
necessarily fail. I do not find any infirmity in the said findings of the first
appellate Court. However, the first appellate Court ought to have seen
that though Ex.B3-sale deed was a compulsorily registrable document,
the said document in terms of Section 49 of the Registration Act could
have been looked into, for collateral purpose, to consider the character of
possession of the first defendant.
13.7. As already discussed, the case of the plaintiffs was that the
first defendant was a permissive occupant. On the contrary, it is the case
of the first defendant that he had purchased the suit property from the
father of the plaintiffs/Rasu Thevar and that he had been put in
possession of the property, in pursuance of the said sale deed. In such
circumstances, in order to ascertain the character of possession, the
Courts are certainly entitled to look into the unregistered sale deed, for
such collateral purposes. Unfortunately, the first appellate Court relied
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on Section 54 of the Transfer of Property Act, to hold that the sale deed
has no value in the eye of law. Section 54 of the Transfer of Property Act
defines 'Sale' to be a transfer of ownership in exchange for a price paid
or promised or part-paid and part-promised and mandates such transfer,
in the case of tangible immoveable property of the value of one hundred
rupees and upwards, to be made only by a registered instrument.
13.8. The first appellate Court has lost sight of the provisions
available under Section 49 of the Registration Act, which permit even an
unregistered sale deed to be received in evidence, provided it is for
collateral purpose. I have already held that character of possession of the
first defendant is clearly a collateral purpose, which falls within the
ambit of Section 49 of the Registration Act and therefore, the first
appellate Court fell in error in holding that since the sale deed does not
qualify to be a valid transfer of property under Section 54 of the Transfer
of Property Act, it cannot be received in evidence at all.
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13.9. The first appellate Court in fact ought to have seen that the
document was received without any objections and also marked as
Ex.B3. Hence, even on the ground that the document was insufficiently
stamped as well, the document could not have been discarded and the
document could have been relied on by the Court.
13.10. The first appellate Court also failed to see that once the case
of the plaintiffs regarding permissive possession was held to be not
proved, then, the plaintiffs' suit for recovery of possession and also relief
of declaration would have to be brought within the period of limitation.
The first appellate Court rightly applied Article 65 of the Limitation Act,
but, however, erroneously came to the conclusion that since the first
defendant has not proved the plea of adverse possession, the possession
of the first defendant from 1978 will be of no avail to the case of the
defendants and that the title of the father of the plaintiffs / Rasu Thevar
would remain intact. The plaintiffs do not even plead as to when the first
defendant was put in possession. In fact, in the plaint, they claim to have
handed over possession to the first defendant for looking after the
coconut trees. Hhowever, in cross-examination, P.W.1 states that the
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possession was given to the first defendant even by their father/ Rasu
Thevar. Though the plaintiffs feebly denied having attested the
unregistered sale deed in Ex.B3, even the first appellate Court found that
the plaintiffs have not been able to demonstrate that the signatures found
in the attestation of Ex.B3 are not their signatures. Thus, it can be safely
presumed that even as early as in 1978, the plaintiffs were aware of the
defendants having been in possession of the suit property, under an
unregistered sale deed. The fact that the father of the plaintiffs received
consideration and executed the said document, though it remains
unregistered, it would certainly clothe the defendants with rights adverse
to the interests of the plaintiffs.
13.11. Section 53-A of the Transfer of Property Act also protects
such purchasers, who are put in possession of the property in part
performance of an agreement of sale and even when transfer has not been
completed in the manner prescribed under law, then the transferor or any
person claiming under him shall be debarred from enforcing any right
against the transferee, i.e., the agreement holder/purchaser, or any person
claiming under such purchaser, in respect of the purchased property on
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which the transferee has taken or continued in possession, other than the
right expressly provided in the terms of the contract. Therefore, the
plaintiffs, not only on account of being witnesses to Ex.B3-sale deed,
but, also on account of taking a claim under their father/Rasu Thevar,
who had admittedly entered into a contract for sale in favour of the first
defendant, and is clearly barred from enforcing any right against the first
defendant or persons claiming under the first defendant. Section 53-A of
the Transfer of Property Act was amended by amendment Act 48/2001
with effect from 24.09.2001 and the effect of the amendment is that in
order to claim the benefit of part performance, the contract has to be
registered. The amendment will not affect the case of the appellants in
the present case, since the agreement is admittedly of the year 1977 and
the unregistered sale deed is also of the year 1978. Thus, even applying
the principles of Section 53-A of the Transfer of Property Act, the
appellants were entitled to succeed. The first appellate Court ought to
have seen that having failed to establish the case of permissive
possession, the cause of action on which the suit came to be filed, the
plaintiffs cannot maintain the suit beyond the period of 12 years and
there is clear evidence adduced by the appellants that they had acted
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adverse to the interest of the plaintiffs, even from the year 1978 onwards.
While so, the suit ought to have filed within the period of 12 years, at
least from 1982, when the first defendant exercised rights of ownership
over the property by executing registered mortgage deeds and
subsequently several settlement deeds as well. The first Appellate Court
also applied Section 54 of the Transfer of Property Act, without noticing
the permissibility of the unregistered sale deed being admitted in
evidence under Section 49 of the Registration Act. However, I do not see
how Section 90 of the Indian Evidence Act will come to the rescue of the
appellants to rely on Ex.B2 and Ex.B3. Section 90 of the Indian
Evidence Act only exempts documents that are more than 30 years old
from being proved and in the facts and circumstances of the present case,
I do not see how Section 90 can be applied to uphold ExB2 and Ex.B3.
The Courts below even found that Ex.B2 and Ex.B3 were executed only
by the father of the plaintiffs and infact Ex.B3 was even witnesses by the
plaintiffs themselves and there is no necessity to go into the issue of
Section 90 of the Indian Evidence Act being applied for the purposes of
validating ExB2 and Ex.B3. Hence, the question of law (D) does not beg
an answer in the present case. The other substantial questions of law, for
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the foregoing reasons, are answered in favour of the appellants and the
suit is held to be clearly barred by limitation and the plaintiffs are not
entitled to the relief of declaration and recovery of possession as prayed
for, in the teeth of their father, having agreed to convey the suit property
even as early as in 1977 and subsequently having executed an
unregistered sale deed and put the first defendant in possession in 1978.
13.12. In Bondar Singh 's case, the Hon'ble Supreme Court held
that a document like a sale deed, even though not ordinarily admissible in
evidence, can be looked into for collateral purposes. In fact, on the facts
of that case, similar to the facts of the present case, an unregistered sale
deed was objected on the ground that it cannot convey title on account of
being improperly stamped and also unregistered. However, the Hon'ble
Supreme Court held that the sale deed evidenced the fact that the initial
possession of the plaintiffs therein was not illegal or unauthorized and
for such purposes, the unregistered document can be looked into.
13.13. In Oswal Fats and Oil Limited 's case, the Hon'ble
Supreme Court held that a person, who approaches the Court for grant of
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relief, equitable or otherwise, is under solemn obligation to candidly
disclose all the material / important facts which have bearing on the
adjudication of the issues raised in the case and if the person is found to
be guilty of concealment of material facts , then the Court as duty to deny
relief to such person. This decision is pressed into service to contend
that the plaintiffs, being signatories to the sale deed executed by their
father, suppressed a material fact and approached the Court with a false
plea, as if they had permitted the first defendant to manage the suit
property.
13.14. Coming to the decision relied on by the learned counsel for
the respondents, in N.V.Nageswara Aiyar's case, the Hon'ble Division
Bench of this Court held that in the absence of registration, the
transaction itself cannot be proved.
13.15. In D.Balachandran's Case, this Court held that even when a
document is admitted in evidence and said document is not duly stamped,
the admission cannot be questioned by virtue of Section 36 of the Stamp
Act. However, this Court further held that an objection that the document
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is inadmissible in evidence can be raised at any state of the case.
However, in the very same judgment, this Court has clearly held that
such a document cannot be looked into for any purpose, except for
collateral purpose. For similar proposition, the judgment of this Court in
N.Pandurangan's case is also relied upon.
13.16. I have already held that even if the document is
inadmissible in evidence, being unregistered, in terms of Section 49
proviso of the Registration Act, the document can be admitted in
evidence for collateral purpose. Hence, the decisions relied on by the
learned counsel for the respondents, Mr.V.N.Arjun, are no of avail to the
case of the respondents. In fact, the decisions have been pressed into
service unsuccessfully before the first appellate Court as well, to decree
the suit and to deny the entitlement of the appellants herein to rely and
fall back upon the unregistered of sale deed executed by the father of the
plaintiffs,which in fact was attested by the plaintiffs themselves and that
too way back in the year 1978. The substantial questions of law are
answered in favour of the appellants.
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14. For all the foregoing reasons, the second appeal is allowed and
the judgment and decree in A.S.No.92 of 2019 is set aside and the
judgment and decree in O.S.No.3 of 2010 is restored to file. There shall
be no order as to costs. Consequently, connected Miscellaneous Petition
is closed.
30.04.2026
NCS : Yes/No
Index : Yes / No
Internet : Yes / No
LS
TO
1.The Subordinate Judge,
Manamadurai
2.The Principal District Munsif,
Manamadurai.
3. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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P.B.BALAJI,J
LS
Pre-delivery Judgment made in
30.04.2026
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