JUDGMENT
T.V. Masilamani, J.
1. The defendants who have lost before both the courts below are the appellants.
2. The first respondent (since deceased)/plaintiff instituted the suit for declaration of title to the suit property and for permanent injunction against the appellants herein/defendants. The trial court having considered the recorded evidence and upon hearing both sides granted the decree as prayed for with costs. The appellants herein filed the first appeal before the Subordinate Judge, Cuddalore and the learned Subordinate Judge after considering the evidence both oral and documentary and upon hearing the arguments on either side dismissed the appeal with costs by confirming the judgment and decree passed by the trial court. Hence, this Second Appeal.
3. The facts leading to the filing of the suit may be set out briefly hereunder:-
(a) The plaintiff purchased the suit property from Renganayaki Ammal and Singaravelu Padayachi for Rs. 10,000/- on 14.8.1980 by means of a registered sale deed and since then, he has been in possession and enjoyment of the same by paying kist, etc. The suit property originally belonged to one Singaravelu Padayachi and he sold the same on 10.4.1978 for Rs. 8,000/- to Renganayaki Ammal, wife of Palanivel Padayachi and she was put in possession of the same. On 13.4.1978, the said Renganayaki Ammal executed a reconveyance deed in favour of her vendor Singaravelu Padayachi in respect of the same property. Since Singaravelu Padyachi informed Renganayaki Ammal that he is no longer interested in repurchasing the property and inasmuch as Renganayaki Ammal was in need of money for her expenses, she sold the property to the plaintiff under a registered sale deed dated 14.8.1980 for valuable consideration of Rs. 10,000/- and the plaintiff is in possession and enjoyment of the suit property in his own right by paying kist, etc.
(b) The defendants 1 and 2 are the sons of 3rd defendant and they have been interfering with the plaintiff’s possession and enjoyment of the suit property without any right or title to same. Hence the plaintiff’s title to the suit property has to be declared and consequently, the defendants have to be restrained by means of permanent injunction from interfering with the peaceful possession and enjoyment of the suit property.
4. The defendants 2 and 3 adopted the averments put forth by the 1st defendant in his written statement and they are briefly as follows:-
(a) The suit property originally belonged to Rathina Padayachi, the grand father of the defendants 1 and 2 and therefore the allegation that the suit property originally belonged to Singaravelu Padayachi, the paternal uncle of the plaintiff is not true. Defendants 1 and 2, minor Ukkiravel and Jeyakodi and Malarkodi are the sons and daughters of Dharmalinga Padayachi, while one Mangalakshmi Ammal is the only daughter of Singaravelu Padayachi. The 3rd defendant is the wife of Dharmalinga Padayachi. The said Rathina Padyachi died about 50 years back leaving behind considerable income rendering joint family properties which devolved upon Singaravelu Padayachi and Dharmalinga Padayachi, who constituted the joint family. In all the joint family properties, Singaravelu was entitled to undivided 1/2 share and Dharmalinga Padayachi entitled to undivided 1/2 share. Dharmalinga Padayachi, father of defendants 1 and 2 and husband of 3rd defendant died as undivided member of the joint family in or about 1974 and thereafter defendants 1 and 2 and the said Ukkiravelu continued to be the members of undivided joint family along with senior paternal uncle Singaravelu Padayachi. The 3rd defendant and her daughters became entitled to specific share as co-owners in the undivided half share belonging to Dharmalinga Padyachi. Thus, defendants 1 and 2 and their brother Ukkiravelu are the joint family members and the 3rd defendant and her daughter as co-owners have been in possession and enjoyment of the joint family properties including the suit property. Singaravelu Padayachi as eldest male member of the joint family was looking after the properties.
(b) Singaravelu Padayachi became an addict to liquor and he was leading a wayward and immoral life and in order to meet his expenses, he borrowed heavily and the said liabilities were avyavaharika in nature. Apprehending that the creditors would bring the properties for sale, Singaravelu Padayachi entered into a sham and nominal transaction and in view of such intention a sham and nominal sale deed dated 10.4.1978 was also executed by him in favour of Renganayaki Ammal who is the close relative of the family. Similarly, the agreement of reconveyance dated 13.4.1978 executed by Rengayakai ammal was not true and valid as she had not derived any title or possession under the said sale deed.
(c) The plaintiff was the close family friend of Singaravelu Padayachi and therefore he joined with Renganayaki Ammal and executed the sale deed in favour of the plaintiff apprehending that the creditors would proceed against the property in their hands. Thus, the alleged sale deed dated 14.8.1980 is neither true and valid nor supported by any consideration and therefore it is only a sham and nominal document.
(d) Singaravelu Padayachi died in the month of Adi 1983 leaving behind him his only daughter Mangalakshmi Ammal. She along with defendants 1 to 3 as co-owners are in possession and enjoyment of the suit property. The plaintiff has neither title to nor possession and enjoyment of the suit property at any point of time. In the above circumstances, the suit for declaration and injunction is not maintainable. Similarly, the suit is bad for non-joinder of necessary parties.
5. The trial court framed the following issues with reference to the above pleadings:-
(1) Whether the said Singaravelu Padayachi and the defendants are members of the joint family?
(2) Whether the suit property belonged to Singaravelu Padayachi and the defendants as joint family property?
(3) Whether the sale deed dated 10.4.1978 in favour Renganayaki Ammal was a sham and nominal document?
(4) Whether the sale deed dated 14.8.1980 in favour of the plaintiff is also a sham and nominal document as alleged in the written statement?
(5) Whether Singaravelu Padayachi incurred debts due to his wayward and immoral life?
(6) Whether the suit property belongs to the plaintiff?
(7) Whether the plaintiff was in possession of the suit property?
(8) Whether the suit property was in the possession of the defendants?
(9) Whether necessary parties have been impleaded in the suit?
(10) To what relief the plaintiff is entitled to?
6. The first respondent as plaintiff in the suit examined himself as P.W.1 and two other witnesses as P.Ws.2 and 3 and marked documents Exs.A-1 to A-9. On the side of the appellants as defendants, the first defendant was examined as D.W.3 and two other witnesses as D.Ws.1 and 2 and they have marked Exs.B-1 to B-4 to prove their respective contentions.
7. The learned District Munsif held on the basis of the recorded evidence and after hearing both sides on issue Nos. 1 to 8 as follows:-
The said Singaravelu Padayachi and the defendants were not members of the joint family and they became divided; the suit property was not joint family property of Singaravelu Padayachi and the defendants; the sale deed executed in favour of Renganayaki Ammal on 10.4.1978 was not a sham and nominal document; the sale deed dated 14.8.1980 in favour of the plaintiff was not a sham and nominal document; Singaravelu Padayachi did not incur any debt for his wayward and immoral life; the suit property belonged to the plaintiff; the suit property was in possession of the plaintiff and the same was not in the possession of the defendants. In view of the above findings on issue Nos. 1 to 8, it was held on issue No. 9 that the suit is not bad for non joinder of necessary parties and ultimately on issue No. 10, it was held that the suit was decreed as prayed for.
8. Aggrieved by the said judgment and decree passed by the trial court, the appellants herein as defendants preferred the first appeal in A.S. No. 22 of 1992 on the file of the Subordinate Court, Cuddalore. The learned Subordinate Judge having analysed the records and evidence of the case framed the following points for consideration:-
(1) Whether the sale deed dated 10.4.1978 executed in favour of Renganayaki Ammal was a sham and nominal document?
(2) Whether the suit property belonged to Singaravelu Padayachi and Dharmalinga Padayachi as their joint family property?
(3) Whether the execution petition filed in O.S. No. 1393 of 1973 marked as Ex.A-9 is true and valid in law?
(4) Whether the appeal has to be allowed as prayed for?
9. Having analysed the records and upon hearing the arguments on either side, the learned Subordinate Judge held with reference to the above points that the sale deed dated 10.4.1978 in favour of Renganayaki Ammal is not a sham and nominal document; that the suit property was not the joint family property of Singaravelu Padayachi and Dharmalinga Padayachi; and that the said execution proceeding was initiated with bona fide intention and therefore the same was true and valid. In view of such findings on points 1 to 3, it was held on point No. 4 that the appeal has to be dismissed by confirming the judgment and decree passed by the trial Court.
10. In the above circumstances, the following questions of law were formulated on 2.7.1993 for consideration:-
(1) Whether the courts below are right in relying on a document which is not marked as an exhibit and rejected in an earlier proceeding?
(2) Whether an unmarked and rejected document is a public document within the meaning of Section 74 of the Indian Evidence Act?
(3) Whether the recitals contained in an unmarked document can be taken as an admission of the party executing the document when the party is not examined to explain the same?
11. The above questions of law already framed are taken up for consideration and the following question of law is formulated for the disposal of this Second Appeal:-
Whether the courts below are right in relying on Ex.A-9 as an exhibit while the same had been rejected in all the earlier proceedings?
12. Heard Mr. R. Srinivasan, learned counsel for the appellants and Mrs. Hema Sampath, learned counsel for the respondents.
13. The parties to the appeal are referred to as they were arrayed before the trial court for the sake of convenience.
14. The facts not in controversy may be set out briefly as under:-
One Rathina Padayachi left two sons, namely, Singaravelu Padayachi and Dharmalinga Padayachi. The appellants/defendants are the sons of the said Dharmalinga Padayachi, who died in or about 1974. Besides defendants 1 and 2, one Ukkiravelu, Jeyakodi and Malarkodi were born to Dharmalinga Padayachi and 3rd appellant/3rd defendant, his wife. Singaravelu Padayachi had only one daughter by name Mangalakshmi Ammal.
15. According to the defendants, Dharmalinga Padayachi died as an undivided member of joint family consisting of himself and his brother Singaravelu Padayachi and his sons defendants 1 and 2 and the said Ukkiravelu and therefore the sale deed executed by Singaravelu Padayachi and Renganayagi Ammal marked as Ex.A-3 in favour of the first respondent/plaintiff (since deceased) in respect of the suit property is a sham and nominal one executed by Singaraveluu Padayachi in order to secrete the suit property from the clutches of his creditors and hence it is urged on the side of the defendants that since the suit property belonged to the joint family of Singaravelu Padayachi and Dharmalinga Padayachi and inasmuch as the said document is sham and nominal one, the plaintiff could not have derived any valid title to and possession of the suit property.
16. In this context, both the courts below have rendered the findings on facts relating to the allegation with reference to the existence of joint family consisting of Singaravelu Padayachi and Dharmalinga Padayachi and also with reference to the nature of the transaction under Ex.A-3, on the basis of the recorded evidence both oral and documentary. While dealing with such evidence, Ex.A-9, certified copy of the petition and orders in the claim application filed by the 3rd defendant for herself and on behalf of her minor children including defendants 1 and herein who were then minors, in O.S. No. 1393 of 1973 was considered by both the courts below. Ex.A-9 relates to the claim in respect of the property attached in the petition for execution of the decree in the suit in O.S. No. 1393 of 1973 filed by the creditors of Singaravelu Padayachi and it was filed by the 3rd defendant herein to raise the attachment over the schedule mentioned property on the ground that in the partition that took place 10 years prior thereto (i.e.,) in or about 1969, the petition property was allotted to the share of her husband, Dharmalinga Padayachi (since deceased).
17. The learned counsel for the revision petitioners has submitted with reference to the said proceedings that the court below erred in placing reliance on the said document for the simple reason that it is not a public document within the meaning of Section 74 of the Indian Evidence Act and that therefore the recitals therein could not be taken as admission of the party to the said proceedings in the absence of evidence adduced by the petitioner therein to explain the circumstances leading to filing of the application under Ex.A-9.
18. It is apparent on the face of Ex.A-9 that the certified copy of the same has been obtained by the plaintiff and filed into court. Similarly, it is not in controversy that the learned District Munsif, Cuddalore while exercising the powers vested under Order 21 Rule 58 of the Code of Civil Procedure rejected the application under the proviso to the said Rule.
19. In this context, it is necessary to extract the provision under Order 21 Rule 58(1)(b) C.P.C. to appreciate the facts and circumstances of the case:-
“58. Adjudication of claims to, or objections to attachment of property.– (1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground that such property is not liable to such attachment, the Court shall proceed to adjudicate upon the claim or objection in accordance with the provisions therein contained;
Provided that no such claim or objection shall be entertained–
(a) … …
(b) where the Court considers that the claim or objection was designedly or unnnecessarily delayed.”
20. Though the order does not disclose explicitly the reason for such rejection, as has been rightly argued by the learned counsel for the respondents, it is seen from Ex.A-9 that the claim application had been presented belatedly subsequent to the passing of the decree in the suit against the said Singaravelu Padayachi, and therefore the executing court thought it fit to reject the same on that ground. Hence, I am unable to concede with the contention put forth by the learned counsel for the appellants that since the claim application made under Ex.A-9 was rejected even at the inception by the executing court, the court below erred in relying upon the same to prove that there had been partition of the family properties belonging to Singaravelu Padayachi and Dharmalinga Padayachi. It follows necessarily that the courts below were right in concluding that Ex.A-9 is the material piece of evidence to prove the partition alleged by the plaintiff in this case.
21. This Court is therefore of the considered view that as per Section 74(1)((iii) of the Indian Evidence Act, 1872, Ex.A-9 clearly falls within the definition of a public document. Section 74(1)(iii) of the said Act reads as follows:-
“74. Public documents:- The following documents are public documents,–
(1) documents forming the acts, or records of the acts–
(i) .. ..
(ii) .. ..
(iii) of public officer, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country;”
22. Hence, it cannot be gainsaid that the certified copy of the earlier proceedings initiated by the 3rd defendant herein in a competent civil court is not a public document and therefore in view of the provisions under Section 65(b) of the said Act, Ex.A-9 is certainly admissible as secondary evidence of the said proceedings pending before the executing court.
23. In this context it is necessary to extract Section 65(b) of the Indian Evidence Act as under:-
“65. Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
(a) .. ..
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.”
24. In view of the above said provision of law, it is clear that the document under Ex.A-9 certainly falls under the category of secondary evidence admissible in evidence. Further it is useful to refer to the conduct of the 3rd defendant in this case, as she has conveniently avoided the box for the simple reason that she would be confronted with Ex.A-9 in the cross-examination if she had examined herself as witness on the side of the defendants. Therefore in view of the provision under Section 114 of the Indian Evidence Act and the principle enunciated by the Supreme Court in the decision, VIDHYADHAR v. MANKIKRAO AND Anr. (1999-3-L.W. 576), necessarily an adverse inference has to be drawn against the case set out by the 3rd defendant as she did not appear and state her own case on oath and subject herself to the cross examination by the plaintiff with reference to Ex.A-9 as she had initiated the said proceedings as evident by the said document. Hence the finding rendered by the trial court and the first appellate court that the suit property fell to the share of Singaravelu in the partition between him and his brother Dharmalingam has to be confirmed. Thus the suit was decreed in favour of the 1st respondent (since deceased) and respondents 2 to 10 herein.
25. For the above said reasons, this Court is of the considered view that the court below has analysed the facts and evidence of the case in a proper perspective and arrived at the right conclusion on the question of facts. Thus, finding no illegality or perversity in the judgment rendered by the first appellate court, the appeal is dismissed by confirming the judgment and decree passed by the Subordindate Judge, Cuddalore in A.S. No. 22 of 1992 on 20.8.1992. However there shall be no order as to costs.