IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:20.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.980 of 2008 and M.P.No.1 of 2008 Kanchana John Bosco ... Appellant vs. 1.A.Gandhi 2.A.Arputharaj ... Respondents This second appeal is filed against the judgement and decree dated 23.1.2008 passed by the IV Additional City Civil Judge, Madras, in A.S.No.586 of 2005 confirming the judment and decree dated 6.1.2005 passed by the 17th Assistant Judge, City Civil Court, Chennai, in O.S.No.3506 of 2003. For Appellant : Mr.M.Rajavelu For Respondents : Mr.N.A.Kareem JUDGMENT
This second appeal is filed by the plaintiffs, inveighing the judgement and decree dated dated 23.1.2008 passed by the IV Additional City Civil Judge, Madras, in A.S.No.586 of 2005 confirming the judment and decree dated 6.1.2005 passed by the 17th Assistant Judge, City Civil Court, Chennai, in O.S.No.3506 of 2003, which was filed for declaration and permanent injunction.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
(a) The plaintiff, who is the first respondent herein, filed the suit seeking the following reliefs:
“to pass judgment and decree for
a) a declaration that the Power of Attorney executed and registered by Mr.M.Anthony Doss in respect of the suit property in favour of the plaintiff and I defendant by a registered deed dated in document No.353/98 in valid binding and enforceable.
b) for a declaration that the settlement deed dated in Document No.616 of 2003 by the Ist defendant in favour of the 2nd defendant thereby conveying the suit property in violation of the terms of deed of power of attorney which has been partly performed in improper and illegal and liable to be cancelled.
c) for a permanent injunction for restraining the 2nd defendant from dealing with the suit property by encumbering or conveying or altering the structure in any way.
d) for costs.” (extracted as such)
(b) The defendants resisted the suit by filing written statement.
(c) Whereupon the trial Court framed the issues. The plaintiff on his side, examined himself as P.W.1 along with one Periya Nayakameri Arul as P.W.2 and marked Exs.A1 to A11. The defendants on their side examined the first defendant as D.W.1 and marked Exs.B1 to B16.
(d) Ultimately the trial Court decreed the suit.
(e) Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the appeal was filed by the D2 for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial court.
4. Challenging and impugning the judgements and decrees of the Courts below, D2 filed this second appeal on various grounds inter alia to the effect that the Courts below did not take into account the fact that D1 happened to be the real owner of the property and he was not a mere Power of Attorney holder under the Power Deed-Ex.A1 dated 26.10.1998 and D1 had no authority, during the pendency of the proceedings, to execute the cancellation deed cancelling the Settlement Deed executed by him in favour of D2 earlier. Even though the Courts below gave finding as against the appellant herein/D2, still this Court could interfere.
5. The following proposed substantial questions of law are found suggested in the grounds of appeal.
“1. Is the first defendant Arputharaj entitled to cancel the Settlement Deed executed by him in favour of the appellant valid and justifiable?
2. When the Benamidar Antonydoss himself had not raised any objection and also there is no reason for Arputharaj to cancel the Settlement Deed in favour of the appellant is justified in acting illegally and contrary to provisions of law?
3. The appellant submits that the Supreme Court has stated several times that the concurrent judgments could be interfered with if it causes loss to the affected party, is not the appellant entitled to prefer the second appeal Vide 2005(2) C.T.C.Page No.182?”
(extracted as such)
6. Heard both.
7. At the out set itself, I fumigate my mind with the following decisions of the Honourable Apex Court.
(i) (2006) 5 Supreme Court Cases 545 HERO VINOTH (MINOR) VS. SESHAMMAL.
(ii) 2008(4) SCALE 300 KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER.
(iii) 2009-1-L.W.1 STATE BANK OF INDIA & OTHERS vs. S.N.GOYA:
8. A bare and plain reading of those precedents would reveal and demonstrate that in second appeal, this Court could not interfere relating to the concurrent finding of facts by the Courts below, unless there is any perversity or illegality or any substantial question of law is involved.
9. A ‘resume’ of facts essential for discussion would run thus:
One Antoney Doss executed a Registered Power Deed-Ex.A1 dated 26.10.1998 in favour of the plaintiff and D1, empowering them to deal with the suit property, however, as per the said registered Power Deed, he had not given any authority to any of his Power agents to effect settlement and in such a case, quite antithetical to the clauses found in the Power Deed, D1 executed a settlement deed in favour of his own daughter-D2, perhaps, on the assumption as though D1 was the absolute owner and that the suit property was purchased in the name of Antonydoss.
10. The Courts below discussed those facts in the light of the provisions of Benami Transactions (Prohibition) Act, 1988. The suit property was purchased by Antoney Doss, vide, Sale deed dated 7.4.1983 and thereafter, the registered Power Deed-Ex.A1 dated 26.10.1998 emerged. The Courts below correctly and appropriately applied the provisions of the Benami Transactions (Prohibition) Act, 1988 and decided the lis.
11. I would like to extract hereunder Sections 3 as well as 4 of the Benami Transactions(prohibition) Act, 1988.
“3. Prohibition of Benami Transactions (1) No person shall enter into any benami transaction.
(2) Nothing in sub-section (1) shall apply to-
(a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter;
(b) the securities held by a –
(i) depository as registered owner under sub-section (1) of section 10 of the Depositories Act, 1996
(ii) participant as an agent of a depository.
Explanation The expressions ‘depository’ and ‘participants’ shall have the meanings respectively assigned to them in clauses (3) and (g) of sub-section (1) of Section 2 of the Depositories Act, 1996.
3. Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable.
4.Prohibition of the right to recover property held benami:- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.”
A mere reading of the above provisions would clearly exemplify that the plea of Benami as put forth by the defendant is totally untenable.
12. I recollect the decision of the Honourable Apex Court in the judgment reported in (1995) 2 Supreme Court Cases 630 R.RAJAGOPAL REDDY(DEAD) BY LRs. AND OTHERS VS. PADMINI CHANDRASEKHARAN(DEAD) BY Lrs, wherein, it was held that Section 4(1) of the Act is not retrospective but it is retroactive in operation
13. In such a case, the Courts below correctly decided that D1 was not justified in pressing into service the concept ‘Benami Transaction’ in respect of the Sale Deed-Ex.A1 dated 7.4.1983, which ex facie and prima facie shows that Antoney Doss happened to be the purchaser of the suit property.
14. As per the registered Power Deed, D1 is only a power agent within the meaning of the Power of Attorney Act and he cannot act in derogation of the clauses in the Power Deed. As per the Power Deed-Ex.A1, D1 alone was not given with any right to effect any settlement. As such, the Courts below correctly analysed the facts and au fait with law and au courante with facts decided the lis, warranting no interference in second appeal.
15. From the suggested substantial questions of law what I could understand is that D2 went to the extent of challenging the capacity of D1 in cancelling the Settlement Deed effected by him in favour of D2, during the pendency of the proceedings.
16. In my considered opinion once it is held that D1 himself had no right to effect such Settlement, it is only non est in the eye of law and his subsequent cancellation also cannot be found fault with by this Court. As such, I could see no question of law much less substantial question of law is involved in this matter.
17. The learned counsel for D2/appellant herein made certain extempore submissions as under:
The suit itself ought not have been filed by the plaintiff without projecting himself as one of the Power of Attorneys of Antoney Doss.
18. The above plea was not taken at all before the lower Court. The learned counsel for the plaintiff would appropriately and convincingly reply to the effect that the suit has been filed by the plaintiff, so as to vindicate his cause to the effect that the act of D1 should not prejudicially affect the plaintiff because he also happens to be one of the power of attorneys. As such, the suit was between power of attorneys and in the cause title there was no necessity for the plaintiff to cite himself as Power Agent and in the body of the plaint the details are found set out.
19. One other plea put forth by the learned counsel for the appellant/D2 is to the effect that the suit was bad for non-joinder of Antoney Doss as one of the parties to the suit.
20. I would like to cite Order 1 Rule 9 of C.P.C. which would highlight that at the earliest point of time such objection should have been raised, but in this case, the written statement is bereft of such plea. Even otherwise as observed supra, this suit is virtually between Power of Attorneys.
21. At this juncture, I recollect the following maxim:
‘Judicis est judicare secundum allegata et probata’ It is the duty of a judge to decide according to facts alleged and proved.
22. It is a common or garden principle governing the law of pleadings that any amount of evidence without the backing of pleadings should be eschewed.
23. In view of the above, I could see no merit in the second appeal and accordingly it is dismissed. No costs. Consequently, connected miscellaneous petition is dismissed.
Msk
To
1.The IV Additional City Civil Judge, Madras.
2.The 17th Assistant Judge, City Civil Court,
Chennai