IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.09.2010 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL A.S. No.416 of1995 and CMP No.6728 of 1995 Ganapathy ...Appellant Vs. 1.Meenakshi Ammal (Died) 2.Rajamanickam 3.Rajamani ...Respondents Prayer: Appeal filed under Section 96 of C.P.C. against the Judgment and Decree made in O.S.No.170 of 1989 dated 10.11.1994 on the file of the Subordinate Judge, Mayiladuthurai. For Appellant : Mr.S.Sounthar For Respondents : Mr.K.Balachandran for R2 R3-Dispensed with J U D G M E N T
The Appellant/First Defendant has projected this Appeal as against the Judgment and Decree dated 10.11.1994 in O.S.No.170 of 1989 on the file of the Learned Subordinate Judge, Mayiladuthurai.
2.On an appreciation of oral and documentary evidence available on record, the trial Court while passing the Judgment in O.S.No.170 of 1989 on 10.11.1994 has among other things observed that ‘it is not true to say that the suit property has been sold to the Appellant/First Defendant by the Arunachala Angurayar and further, it is also observed that the alleged Sale Agreement is not true and moreover, the First Respondent/First Plaintiff (Since Deceased) has purchased the suit house from the Third Respondent/Second Defendant for a valuable sale consideration and that the sale is a true and valid one and also that the Appellant/First Defendant is not entitled to get the benefits as per Section 53-A of the Transfer of Property Act, etc., and resultantly, held that the Respondents 1 and 2/Plaintiffs are entitled to get the relief of recovery of possession and decreed the suit with costs. The trial Court has also granted two months time for the Defendants to hand over the vacant possession to the Respondents/Plaintiffs and ordered the determination of mesne profits by means of a separate proceeding.
3.Before the trial Court, five issues have been framed for determination in the main case. On behalf of the Respondents 1 and 2/Plaintiffs, Witness P.W.1 was examined and Exs.A1 to A8 have been marked. On the side of the Appellant/First Defendant, Witnesses D.Ws.1 and 2 have been examined and Exs.B1 to B11 have been marked.
4. A Memo has been filed on behalf of the Appellant/First Defendant to the effect that the First Respondent/First Plaintiff (Since Deceased) died during the pendency of this Appeal and her son viz., the Second Plaintiff is already on record as Second Respondent and since the suit property has been settled in favour of the Second Respondent/Second Plaintiff by the First Respondent/First Plaintiff (Since Deceased) by means of a Settlement Deed dated 05.11.1990 the right to suit devolves upon the Second Respondent/Second Plaintiff. The said Memo is accordingly recorded.
5. The points that arise for determination in this Appeal are:
i) Whether the Appellant/First Defendant is entitled to get the benefits under Section 53-A of the Transfer of Property Act?
ii) Whether the purchase of suit property by the First Respondent/First Plaintiff as per Ex.A1 Sale Deed dated 07.09.1989 is a true and valid one?
CONTENTIONS, DISCUSSIONS AND FINDINGS ON POINTS 1 AND 2:
6.According to the Learned counsel for the Appellant/First Defendant, the trial Court has committed an error in not taking account of the fact that the Appellant/First Defendant has been in possession of the suit property as per the earlier Agreement of Sale of the year 1981 and therefore, he is entitled to the benefit of part performance as per Section 53-A of the Transfer of Property Act and further, the First Respondent/First Plaintiff (Since Deceased) is not a bonafide purchaser of the suit property.
7.Besides the above, the Learned counsel for the Appellant/First Defendant submits that the First Respondent/First Plaintiff (Since Deceased) has entered into an Agreement of Sale with the Third Respondent/Second Defendant knowing fully well that the Sale Agreement between the Appellant/First Defendant and Arunachala Angurayar, the Power Agent of Vaithiyanatha Sharma and moreover, Exs.B2 to B8 the Tax Receipts will clearly prove that the Appellant/First Defendant has been in possession of the suit property prior to the date of sale between the Third Respondent/Second Defendant and First Respondent/First Plaintiff (Since Deceased) but these aspects of the matter have not been adverted to by the trial court in a proper perspective which has resulted in miscarriage of justice.
8.It is the further contention of the Learned counsel for the Appellant/First Defendant that Ex.B1 Voucher executed by Arunachala Angurayar has not been taken into account by the trial court which admits the Sale Agreement receipt of Rs.26,000/- as sale consideration by Arunachala Angurayar from the Appellant/First Defendant, which has resulted in an erroneous view taken that the Sale Agreement between the Appellant/First Defendant and Arunachala Angurayar is not true.
9.Also, a plea is taken on behalf of the Appellant/First Defendant that the plea set up by the Respondents 1 and 2/Plaintiffs that the Appellant/First Defendant has been in permissive occupation of the suit house to construct adjacent building is highly imagination when the Appellant/First Defendant has been in possession of the property right from the year 1981.
10.Lastly, it is the submission of the Learned counsel for the Appellant/First Defendant that the trial court has failed to note that the non examination of the Predecessors in title to the suit property by the Respondents 1 and 2/Plaintiffs is fatal to the case.
11.In short, the contention of the Learned counsel for the Appellant/First Defendant is that the trial Court has not looked into the material aspects of the case in a proper perspective and therefore, prays for allowing the Appeal in the interest of justice.
12.Per contra, the Learned counsel for the Second Respondent submits that the trial Court has taken into account of the relevant, attendant facts and circumstances of the case and it has analysed the evidence adduced by the parties and upon perusing the documentary evidence has come to a consequent conclusion that the Respondents 1 and 2/Plaintiffs are entitled to obtain the relief of recovery of possession and accordingly, decreed the suit by granting two months time to the Appellant/First Defendant to hand over the vacant possession and the same may not be disturbed by this Court at this stage of the Appeal.
13.In the instant case, the evidence of P.W.1, D.W.1, D.W.2 assumes significance, in the considered opinion of this Court.
14.P.W.1 (Second Respondent/Second Plaintiff) in his evidence has deposed before the trial court that the First Respondent/First Plaintiff (Since Deceased) is his Mother and that the suit property is the house with a backyard and he has purchased the suit property from the Third Respondent/Second Defendant as per Ex.A1 Sale Deed dated 07.09.1989 and in favour of the Third Respondent/Second Defendant, his Grandfather has executed Ex.A2 Settlement Deed dated 22.03.1959 and Appellant/First Defendant near the suit property has been constructing a house and he informed the Third Respondent/Second Defendant that he will reside in the suit property till his construction of the house is completed.
15.The evidence of PW1 is also to the effect that at the time of his purchase, the Appellant/First Defendant has constructed his house and at that time, the suit property has remained as vacant and the Appellant/First Defendant informed him that he will not vacate from the suit property and therefore, Ex.A3 Lawyer Notice dated 20.11.1989 has been issued to the Appellant/First Defendant and Ex.A4 dated 20.11.1989 is the Acknowledgement for the receipt of Ex.A3 Lawyer Notice.
16.Proceeding further,PW1 in his evidence goes on added that as regards the suit property his Mother viz., the First Respondent/First Plaintiff (Since Deceased) has executed Ex.A8 Settlement Deed dated 05.11.1990 in his favour and therefore, he has filed the present suit for recovery of possession.
17.In his cross-examination, PW1 has specifically stated that it is not correct to state that based on the Sale Agreement in the suit property, the Appellant/First Defendant is residing and further, he has not enquired with Arunachalam (because of his death) that the Appellant/First Defendant has purchased the property from him.
18.The Appellant/DW1 in his evidence has stated that the suit property originally belonged to Vaithiyanatha Sharma and Arunachala Angurayar has been authorised Power Agent of Vaithiyanatha Sharma and in regard to the suit property, there has been a Sale Agreement between him and Arunachala Angurayar for Rs.26,000/- and the Sale Agreement has been entered into in the year 1981 and that he has paid a sum of Rs.26,000/- to Arunachala Angurayar and that he has been in possession of the suit property and he has occupied the suit property in July 1981 and he has not obtained a Sale Deed from Vaithiyanatha Sharma because of the fact that he has expired and he is not aware of the year of his death.
19.The Appellant/DW1’s evidence is to the effect that the Power Agent during the year early 1988 has expired and since the Power Agent has expired he has not obtained a Sale Deed in his favour and Exs.B2 to B8 are the House Tax Receipts.
20.The stand taken by the Appellant/First Defendant as seen from his evidence is that he has been in possession of the suit property based on the Sale Agreement and therefore, the Respondents 1 and 2/Plaintiffs are entitled to seek the relief of recovery of possession from him.
21.DW2 in his evidence has deposed that he knows the Appellant/First Defendant and he also knows Arunachala Angurayar and that he has asked Arunachala Angurayar to register the suit property in favour of the Appellant/First Defendant and he informed him that he will register the Sale Deed in respect of the suit property in favour of the Appellant/First Defendant and the owner of the suit property is in Chennai and because of the demand made on several occasions, Arunachalam asked him to write Ex.B1 Voucher and in the said Voucher, he has written about the receipt of money in respect of the suit property and in the said voucher, one Kalai Kovan has signed as a witness and Arunachalam has signed in Ex.B1 and further that the said Arunachalam has expired.
22.Significantly, DW2 in his evidence has stated that the suit property belonged to Vaithiyanatha Sharma and that the Angurayar served as a Secretary to the Vaithiyanatha Sharma and he does not know directly as to the payment of money.
23.The First Respondent/First Plaintiff (Since Deceased) has originally filed the suit praying for the relief of recovery of possession of the suit property from the Defendants. Later, the Second Respondent, Son of the First Respondent/First Plaintiff (Since Deceased) has been added as Second Plaintiff in the suit because of the fact that the First Respondent/First Plaintiff (Since Deceased) has settled the suit property by means of Settlement Deed in favour of her son.
24.The case of the Respondents 1 and 2/Plaintiffs as seen from the plaint filed before the trial Court is that they have purchased the suit property from the Third Respondent/Second Defendant as per Sale Deed dated 07.09.1981 for a valuable consideration and that the Appellant/First Defendant has been permitted to occupy the suit property by the Third Respondent/Second Defendant to reside temporarily for the purpose of construction of house over the property belonging to the Appellant/First Defendant which is adjacent to the suit property.
25.According to the Respondents 1 and 2/Plaintiffs, they informed the Appellant/First Defendant about their purchase of the suit property as per Ex.A1 Sale Deed dated 07.09.1981 and they wanted to occupy the suit property for their personal use and occupation and requested the Appellant/First Defendant to vacate the building and hand over the possession to her, to which course the Appellant/First Defendant was not amenable.
26.The First Respondent/First Plaintiff (Since Deceased) has issued Ex.A3 Lawyer’s Notice dated 20.11.89 addressed to the Appellant/First Defendant and the Third Respondent/Second Defendant in and by which the First Respondent/First Plaintiff (Since Deceased) has expressed her desire to occupy the suit property for personal use and called upon the First Appellant/First Defendant and the Third Defendant to vacate the suit property and hand over the possession within three months from the date of receipt of the notice but no reply has been issued to Ex.A3 Lawyer’s Notice dated 20.11.1989 issued on behalf of the First Respondent/First Plaintiff (Since Deceased) through her Lawyer.
27.In the Written Statement filed by the Appellant/First Defendant, a stand is taken that the suit property initially belong to one late Vaithiyanatha Iyer and during his life time, he has given Power to Arunachala Angurayar of Samiyam Village to dispose of the suit house and on the basis of power given by Vaithiyanatha Iyer, the Power Agent agreed to sell the suit house to him and the entire sale consideration of Rs.26,000/- has been paid by him and the said amount has since been received by Vaithiyanathan and moreover, he has been put in possession of the suit property in pursuance of the Sale Agreement and as such, he is entitled to get the benefits as per Section 53-A of the Transfer of Property Act.
28.The Appellant/First Defendant has also taken a stand that he has always been ready and willing to complete the transaction and in the meantime, the owner Vaithiyanatha Iyer and the Power Agent Arunachala Angurayar has promised to execute the Sale Deed by the L.Rs. of Vaithiyanathan and Arunachala Angurayar has received a sum of Rs.1,700/- from him towards the expenses for the purchase of stamp papers, Registration Charges, etc., and promised to get the sale Deed from the L.Rs. Of the Deceased Vaithiyanathan, etc., Further, the said Arunachala Angurayar has been bed ridden and not able to perform his promise and that the Agreement has also been with him and he also died without fulfilling his promise and taking advantage of the death of the Power Agent, the First Respondent/First Plaintiff (Since Deceased) has obtained the Sale Deed from one of the Legal Representatives of late Vaithiyanathan.
29.A perusal of Ex.A1 Sale Deed dated 07.09.1989 shows that it has been executed in favour of the First Respondent/First Plaintiff (Since Deceased) by the Third Respondent/Second Defendant in respect of tiled house which admittedly the suit property. The said document is a registered one and the market value of the property has been mentioned as Rs.70,000/- and the land value has been mentioned as Rs.19,620/-. The value of the fencing pole has been mentioned as Rs.500/-, the value of well inclusive of electricity connection, house, etc., has been mentioned as Rs.49,880/- and in all, the house value has been mentioned as Rs.50,830/-.
30.Ex.A2 the Registration Deed dated 22.03.1959 executed in favour of the Third Respondent/Second Defendant by the Retired Permanent Way Inspector Vaithiyanatha Sharma, pertaining to the suit property. In the Settlement Deed, it is mentioned as the Third Respondent/Second Defendant is the son of Vaithiyanatha Sharma’s Daughter Rukmani (Grandson). A scrutiny of the recital of the Ex.A2 Settlement Deed dated 22.03.1959 would go to show pinpointedly that the Settlement Deed has been executed by Vaithiyanatha Sharma in favour of his Grandson the Third Respondent/Second Defendant Rajamani out of affection and the Settlement Deed is an absolute one. Also, the said Vaithiyanatha Sharma has executed the Settlement Deed in favour of the Third Respondent/Second Defendant since he has no male issue as seen from the averments made in the Settlement Deed.
31.Ex.A8 is the Settlement Deed dated 05.11.1990 executed by the First Respondent/First Plaintiff ( Since Deceased) in favour of the Third Respondent/Second Defendant pertaining to the suit property/
32.As per Ex.A1 Sale Deed dated 07.09.1989 since the First Respondent/First Plaintiff (Later Deceased) has purchased the suit property the House Tax Receipts are all of little value and of no consequence and they are not taken into account by this Court. Notwithstanding the fact that the First Respondent/First Plaintiff (later Deceased) has obtained a Ex.A1 Sale Deed dated 07.09.1989 in her favour, the Appellant/First Defendant has been continued to be in occupation of the suit property.
33.As evident from Ex.A1 Sale Deed that Arunachala Angurayar’s son Jeyaram has affixed his signature when Angurayar’s Jayaraman has signed in Ex.A1 Sale Deed dated 07.09.1989 then certainly he would have been aware of the sale that has taken place in favour of the First Respondent/First Plaintiff ( Since Deceased). Further more, even in Ex.A2, Settlement Deed, Arunachala Angurayar has signed.
34. Coming to the plea of the Appellant/First Defendant that he is entitled to get the benefits as per Section 53-A of the Transfer of Property Act viz., the Part Performance, it is to be pointed out that the ingredients of Section 53-A of the Transfer of Property Act enjoins as follows:
i) There must be a contract to transfer for consideration any immovable property.
ii) The contract must be in writing, signed by the Transferor, or by someone on his behalf.
iii) The writing must be in such words from which the terms necessary to construe the transfer can be ascertained.
iv) The Transferee must in part performance of the contract take possession of the property, or of any part thereof.
v) The Transferee must have done some act in furtherance of the contract.
vi) The Transferee must have performed or be willing to perform his part of the contract (NATHULAL V PHOOL CHAND, (1969) 3 SCC 120).
35.On going through the ingredients of Section 53-A of the Transfer of Property Act, it is clear that it does not prohibit a Defendant from taking a plea in his defence to protect his possession over the suit property obtained in part performance of a contract. In fact, Section 53-A of the Transfer of Property Act applies to an individual contracts to transfer immovable property in writing. Further, the said Section only applies to a case where the Transferee is in possession under a contract to transfer immovable property. The established fact for taking umbrage as per Section 53-A of the Transfer of Property Act is proof of possession. If Transferee has not taken possession then the ingredients of Section 53-A of the Transfer of Property Act will not come into operative play, in the considered opinion of this Court.
36.Be that as it may, in the instant case, the Appellant/First Defendant has been in possession of the suit property even after the execution of Ex.A1 Sale Deed dated 07.09.1989 in favour of the Appellant/First Defendant (Since Deceased). Suffice it for this Court to point out that the documents projected on the side of the Appellant/First Defendant do not go to prove that the Appellant/First Defendant has been in enjoyment of the suit property in pursuance of the Sale Agreement. Merely because the Appellant/First Defendant family members name do find a place in the voters list, it cannot be held as a matter of course/routine that he is entitled to seek the benefits of Section 53-A of the Transfer of Property Act. Before the trial Court, the Second Respondent/Second Plaintiff has been examined as PW1. As per Ex.A8 Settlement Deed dated 05.11.1990 executed by the First Respondent/First Plaintiff (Since Deceased) viz., the Mother, the Second Respondent/Second Plaintiff has become the absolute owner of the suit property. The death of Vaithiyanatha Sharma and the Power Agent Arunachala Angurayar are all unfavourable circumstances in favour of the Appellant/First Defendant, as opined by this Court. Moreover, there is no proof in the present case to establish that the Third Respondent/Second Defendant has known about the Sale Agreement executed by Arunachala Angurayar in favour of the Appellant/First Defendant.
37. It is to be borne in mind that as per Ex.A1 Sale Deed dated 07.09.1989, the First Respondent/First Plaintiff (Since Deceased) has purchased the suit property viz., house from the Third Respondent/Second Defendant for a valuable consideration and therefore, the said Sale Deed is a true, genuine and a valid one in the eye of law, as held by this Court.
38.That apart, even though the Appellant/First Defendant has pleaded and contended that he is entitled to seek the benefits of Section 53-A Part Performance of the Transfer of Property Act, yet this Court is of the considered opinion that he is not entitled to derive the
benefits as per Section 53-A of the said Act for the simple reason that Ex.A1 Sale Deed dated 07.09.1989 obtained by the First Respondent/First Plaintiff (Since Deceased) in her favour confers right upon her in respect of the suit property absolutely and as per the Settlement Deed, the Third Respondent/Second Defendant has sold the suit property in favour of the First Respondent/First Plaintiff (Since Deceased) as per Ex.A1 Sale Deed dated 07.09.1989 and since Ex.A2 Settlement Deed executed by Vaithiyanatha Sharma in favour of the Third Respondent/Second Defendant contain a recital that the Third Respondent/Second Defendant is his Grandson through his Daughter Rukmani, it cannot be said by any stretch of imagination that the Third Respondent/Second Defendant is not a legal heir and looking at from any angle, the Appeal filed by the Appellant/First Defendant sans merits and also lacks bonafides and consequently, the Appeal fails and the points 1 and 2 are answered accordingly against the Appellant/First Defendant.
M.VENUGOPAL,J.
Vri
39.In the result, the First Appeal is dismissed leaving the parties to bear their own costs. Resultantly, the Judgment and Decree made in O.S.No.170 of 1989 dated 10.11.1994 are affirmed by
this Court for the reasons assigned in this Appeal. Considering the facts and circumstances of the case, there shall be no order as to costs. Consequently, the connected Miscellaneous Petition is closed.
16.09.2010 Index :Yes/No Internet :Yes/No vri A.S. No.416 of1995