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T.V.Viswanathan vs M.K.Nagasamy … 1St on 29 October, 2011

Madras High Court
T.V.Viswanathan vs M.K.Nagasamy … 1St on 29 October, 2011
       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 29/10/2011

CORAM
THE HONOURABLE MR.JUSTICE G.RAJASURIA

S.A(MD)No.313 of 2011
and
M.P(MD)No.1 of 2011

1.T.V.Viswanathan
2.T.V.Sivanath
3.T.V.Saradha		... Appellants/Appellants/
				Plaintiffs

Vs.

1.M.K.Nagasamy		... 1st Respondent/1st Respondent/
				1st Defendant

2.Rukumaniammal		...2nd Respondent/2nd Respondent/
				2nd Defendant

Prayer

Second Appeal filed under Section 100 of the Code of Civil Procedure
against the judgment and decree dated 22.12.2010 made in A.S.No.129 of 2009 on
the file of the Principal Subordinate Court, Melur, confirming the judgment and
decree dated 30.04.2009 made in O.S.No.403 of 2004 on the file of the District
Munsif Court, Melur.	

!For Appellants	... Mr.M.S.Suresh Kumar
^For Respondents... Mr.M.N.Sankaran for R.1
		    No representation for R.2
* * * * *

:JUDGMENT

This second appeal is focussed by the plaintiffs animadverting upon the
judgment and decree dated 22.12.2010 made in A.S.No.129 of 2009 by the learned
Principal Subordinate Judge, Melur, confirming the judgment and decree dated
30.04.2009 made in O.S.No.403 of 2004 by the learned District Munsif, Melur.

2. The parties, for the sake of convenience, are referred to hereunder
according to their litigative status and ranking before the trial Court.

3. Broadly, but briefly, narratively, but precisely, avoiding discursive
delineation of the case, the relevant facts absolutely necessary for the
disposal of this second appeal would run thus:

The plaintiffs filed the suit seeking the reliefs of declaration that the
suit property belonged to the plaintiffs 1 and 2 absolutely and for recovery of
possession of the suit property from the second defendant and for the past and
future mesne profits.

4. The defendants 1 and 2 separately filed their respective written
statements resisting the suit.

5. Whereupon, the trial Court framed the issues and additional issues.

6. During trial, P.W.1 to P.W.3 were examined and Exs.A.1 to A.6 were
marked on the side of the plaintiffs and D.W.1 to D.W.3 were examined and
Exs.B.1 to B.29 were marked on the side of the defendants.

7. Ultimately, the suit was dismissed by the trial Court.

8. Being aggrieved by and dissatisfied with the judgment and decree of the
trial Court, the plaintiffs filed the appeal for nothing but to be dismissed by
the first appellate Court.

9. Challenging and impugning the judgments and decrees of both the Courts
below, the second appeal has been focussed on various grounds by the plaintiffs
and they suggested the following substantial questions of law:
“1) In the facts and circumstances of the present case, whether the
Plaintiffs/Appellants attestation in Ex.A.3=Ex.B.1 Sale Deed by itself would
impute knowledge of the contents of the Sale Deed or not as per Section 115 of
Indian Evidence Act (1 of 1872).

K.Velayudham Pillai & Others Vs. T.Velayutham pillai & others reported in (2009)
1 MLJ P-74. (TNLJ 1981 Page 22).

2) Whether the Courts below has understood Article 65(b) of the Limitation
Act, which will apply in cases where the right of possession and interest itself
commenced only on the death of the Hindu female and therefore in this case the
suit filed is not barred by limitation? Jagat Ram Vs. Varinder Prakash (2006) 3
MLJ 141 Supreme Court.

3) Whether the Courts below had complied the mandatory provisions in Order
14 Rule 2 and Order 20 Rule 5 C.P.C. so as to state its finding with reasons
upon each separate issue? K.V.Shetty Vs. Woodbrier Estates Limited, Nilgiris
District & others (2008) 4 MLJ 926.

4) Whether the Plaintiffs/Appellants has to seek for a prayer to cancel
the sale deed Ex.A3 when they are not parties to the Sale? Suhrid Singh Vs.
Randhir Singh & others 2010(2) MWN (Civil) 221. Supreme Court.

5) Can the Lower Appellate Court infer on its own that there is no
evidence by the Plaintiffs to prove that the contents of Sale Deed Ex.A3 is not
known to them?”

(extracted as such.)

10. At this juncture, I would like to fumigate my mind with the following
decisions of the Honourable Apex Court:

(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court
Cases 545.

(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE

300.

(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.

11. A plain reading of those precedents would reveal and demonstrate that
under Section 100 of the Code of Civil Procedure, Second Appeal cannot be
entertained, unless substantial question of law is involved. It is, therefore,
just and necessary to analyse as to whether any substantial question of law is
involved in this case.

12. Before delving deep into the matter, I felt after hearing both sides
that the trial Court did not frame appropriate issues and adding fuel to the
fire and also fanning the flame, the first appellate Court throwing to winds the
mandates of law and more specifically, the punctilious of Court procedure
relating to adjudication of first appeals, simply formulated two points for
consideration as to (i) whether the appeal was to be allowed or not and (ii)
whether the judgment and decree of the trial Court has to be confirmed or not.

13. In my considered opinion, the manner and method in which the Courts
below dealt with the matter was not satisfactory even by one’s wildest dreams.
Time and again, it has been held by the Honourable Apex Court that unless
appropriate issues are before the Court, certainly there is every likelihood of
the Court getting itself mislead and sidetracked and the parties also would get
bamboozled and flummoxed, confused and discombobulated in adducing evidence. It
is not a mere ornamental or pulchritudinous to say that there should be
appropriate issues, but it is a meaningful exercise which every Court should
resort to with due diligence and caution as otherwise it will lead to travesty
of justice. Hence, I would like to formulate the following substantial
questions of law:

(i) Whether the trial Court formulated appropriate issues in accordance
with law and dealt with the matter?

(ii) Whether the first appellate Court formulated appropriate points for
consideration in deciding the appeal?

(iii) Whether the first appellate Court being the last Court of facts
failed to adhere to the mandate of law in delving deep into all aspects of the
case?

14. All the above substantial questions of law are taken together for
discussion since they are inter-linked and interwoven, entwined and intertwined
with one another.

15. The long and short of the admitted or at least undeniable germane
facts absolutely necessary for the purpose of deciding this second appeal, would
run thus:

One Kuppusamy, indisputably and indubitably, was the absolute owner of the
suit property and other properties. The third plaintiff and the first defendant
happened to be the children of the said Kuppusamy and his wife Rajammal. The
said Kuppusamy executed a registered Will dated 23.04.1975 bequeathing life
estate in favour of his wife – Rajammal and absolute estate in favour of his
daughter – the third plaintiff in respect of the suit property measuring an
extent of 39 cents.

16. During the life time of Rajammal, it so happened, a sale deed dated
04.11.1990 emerged, whereby the first defendant, even though was not the owner
of the suit property, executed the said sale deed along with his admitted other
properties in favour of the second defendant; wherein the third plaintiff and
her son – the second plaintiff put their signatures as attesting witnesses in
their house itself. Before the Sub Registrar, one Premnath, the one other son of
the third plaintiff signed as the identifying witness. The second defendant was
none but the cultivating tenant in the suit property. The mother of the third
plaintiff – Rajammal who was having life estate at the relevant time of
emergence of the sale deed, died in the year 1997. Thereafter, the settlement
deed – Ex.A.2 dated 27.03.1998 emerged in favour of the plaintiffs 1 and 2 at
the instance of the third plaintiff settling the suit property in favour of
them. Subsequently, there were exchanges of notices between the plaintiffs and
the defendants touching upon the ownership over the suit property.

17. The plaintiffs would claim that they came to know about the alleged
fraudulent sale transaction as contained in Ex.A.3 – sale deed dated 04.11.1990,
whereupon they filed the present suit during the year 1998.

18. However, the first defendant would gainsay and contradict, repudiate
and refute the contentions of the plaintiffs by contending that the plaintiffs 2
and 3 having signed the sale deed as attesting witnesses, now unjustifiably and
illegally veer round and take a plea by having a volte face quite antithetical
to what they committed in black and white and they also by their conduct was
estopped from contending otherwise.

19. To the risk of repetition and pleonasm, but without being tautologous,
I would like to indicate and highlight that both the Courts below failed to
decide the matter by having before them appropriate issues as well as proper
points for consideration respectively. They did not deal with the matter in a
systematic way. In my considered view, both the Courts below failed to take
note of the crucial fact that Rajammal – the life estate holder as per the Will,
even though was very much alive at the time of emergence of Ex.B.1 – sale deed
dated 04.11.1990 was neither an executant nor an attesting witness relating to
Ex.B.1.

20. The learned Counsel for the first defendant would vehemently argue
that both the Courts below cogently and convincingly, appropriately and
appositely, relied on various precedents and held that even mere attestation of
the sale deed by the real owner would be sufficient to constitute a valid sale
deed.

21. Whereas the learned Counsel for the plaintiffs, in a bid to mince meat
and torpedo and pulverise the arguments as put forth and set forth on the side
of the first defendant, would pilot his arguments by pointing out that mere
attestation of a sale deed by the real owner would not constitute a valid sale
deed. Trite, the proposition of law, is that the attestor is not expected to
know the contents of the document. Attestation means attesting the signature of
the executant and not attesting the genuineness of the contents of the
documents. I would like to refer to a few decisions fruitfully in this regard,
which are as follows:

(i) H.Venkatachala Iyengar v. B.N.Thimmajamma reported in AIR 1959 Supreme
Court 443.

(ii) N.Kamalam (Dead) and another v. Ayyasamy and another reported in
(2001) 7 Supreme Court Cases 503.

(iii) Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in (2003) 2
Supreme Court Cases 91.

(iv) Bhagat Ram and another v. Suresh and others reported in (2003) 12
Supreme Court Cases 35.

22. Unarguably and unassailably, obviously and axiomatically, it is clear
that both the Courts below did not take into consideration the fact that
Rajammal was not added as a party to the sale deed and she was not even an
attesting witness to it. As such, there should have been specific issue framed
on this point as under:

“Whether Ex.B.1 – the sale deed dated 04.11.1990 executed by the first
defendant during the life time of Rajammal – a life estate holder, could be held
to be valid even though the third plaintiff, the vested reminder and her son –
the second plaintiff attested Ex.B.1?”

23. Switching over to the other point, I would like to spotlight that
regarding sale consideration is concerned, the learned Counsel for the first
defendant would stress upon the fact that the second defendant candidly and
categorically in her deposition averred that a part of the sale consideration
was paid by her under Ex.B.1 – the sale deed to the third plaintiff directly,
even a day anterior to the emergence of the sale deed; for which the learned
Counsel for the plaintiffs would clarify and expound that quite antithetical to
Section 92 of the Indian Evidence Act, her evidence cannot be countenanced and
upheld as correct.

24. It is a thing to say that the second defendant paid the amount to the
first defendant, who in turn, paid the same to the third plaintiff, but, that is
not the case of the second defendant. Whereas the second defendant would state
as though it was the second defendant who actually paid the part of the sale
consideration to the third plaintiff, but the recitals in the sale deed would
speak otherwise to the effect that the entire sale consideration was paid by the
second defendant in favour of the first defendant. This aspect ought to have
been considered by both the Courts below, but they failed to do so.

25. The theory of estoppel was also ushered in by both the Courts below.
Unless there is a specific issue concerning estoppel based on pleadings, any
decision rendered on that count, cannot be upheld to be a sound and valid one.
I would like to refer to the decision of the Honourable Apex Court in
H.R.Basavaraj v. Canara Bank reported in (2010) 12 Supreme Court Cases 458
for ready reference. Certain excerpts from it, would run thus:
“30. In general words, estoppel is a principle applicable when one person
induces another or intentionally causes the other person to believe something to
be true and to act upon such belief as to change his/her position. In such a
case, the former shall be estopped from going back on the word given. The
principle of estoppel is, however, only applicable in cases where the other
party has changed his position relying upon the representation thereby made.

31. As stated by Lord Denman, in Pickard v. Sears (1837) 6 Ad & El 469)
and discussed in B.L. Sreedhar v. K.M. Munireddy (2003) 2 SCC 355, estoppel is
said to be based on the maxim, allegans contrarir non est audiendus (a party is
not to be heard to allege the contrary) and is that species of presumption
juries et de jure (absolute or conclusive or irrebuttable presumption), where
the fact presumed is taken to be true, not as against all the world, but against
a particular party, and that only by reason of some act done; it is in truth a
kind of argumentum ad hominem.

Estoppel is a complex legal notion, involving a combination of several
essential elements, namely, statement to be acted upon, acting on the faith of
it, resulting detriment to the actor. Estoppel is often described as a rule of
evidence, as indeed it may be so described. But the whole concept is more
correctly viewed as a substantive rule of law. Estoppel is different from
contract both in its nature and consequences. But the relationship between the
parties must also be such that the imputed truth of the statement is a necessary
step in the constitution of the cause of action. But the whole case of estoppel
fails if the statement is not sufficiently clear and unqualified.*

32. In the present case, the Bank has granted the loan for proper
functioning of the Trust and on hypothecation of the properties of the Trust
itself. From the very beginning, all the transactions which had been entered
into had clearly been for the sake of the running of the publications of
Samyukta Karnataka and other periodicals like Kasturi. In fact, first KPP and
then JKNP, both private limited companies were formed for the sole purpose of
the management of the running of the business of LST. These companies had been
formed because LST was running losses and was unable to properly manage its
affairs. Even the appointment of Receivers and the subsequent transactions
entered into by the Administrators appointed under the LST Act had been for the
purpose of furthering the business concerns of LST itself. It would be useful to
refer in this connection to Depuru Veeraraghava Reddi v. Depuru Kamalamma (AIR
1951 Mad 403) where Vishwanatha Sastri, J. (as His Lordship then was) observed:
(AIR p. 405, para 7)
“7. ? Estoppel though a branch of the law of evidence is also capable of
being viewed as a substantive rule of law insofar as it helps to create or
defeat rights which would not exist or be taken away but for that doctrine?.”

33. In S. Shanmugam Pillai v. K. Shanmugam Pillai {(1973) 2 SCC 312 : AIR 1972
SC 2069} it was observed that there are three classes of estoppels that may
arise for consideration; being: (SCC p. 320, para 16)
“(1) that which is embodied in Section 115 of the Evidence Act, (2)
election in the strict sense of the term whereby the person electing takes a
benefit under the transaction, and (3) ratification i.e. agreeing to abide by
the transaction.”

It might be said that the action of the Trust falls under the third category
whereby it ratified all actions taken by others and benefiting from the same.
Hence, the Trust being the sole beneficiary is not only liable for the repayment
but is also estopped from denying its liability under the contract.”

26. As such, I am of the considered view that the following issues based
on the aforesaid facts, would emerge in this regard:

“(i) Whether the defendants could plead anything contrary to the recitals
in the sale deed in view of the embargo as embodied in Section 92 of the Indian
Evidence Act and more specifically, relating to payment of sale consideration?

(ii) Whether the principle of estoppel could be pressed into service by
the defendants as against the plaintiffs on the ground that the second plaintiff
and the third plaintiff signed as attestors to the said sale deed – Ex.B.1?”

27. There is also one other crucial point which I would like to highlight
here. A Will necessarily has to be proved strictly in accordance with Section
68 of the Indian Evidence Act. My mind is redolent and reminiscent of the
decision in S.R.Srinivasa and others v. S.Padmavathamma reported in (2010) 5
Supreme Court Cases 274.

28. The learned Counsel for the plaintiffs would unmindfully and casually
submit that inasmuch as in the pre-litigation notice as well as the written
statement itself, the first defendant admitted the genuineness of the Will and
the entitlement of the third plaintiff as absolute owner after the death of
Rajammal, the life estate holder in respect of the suit property, there arose no
necessity for the plaintiffs to prove the Will as per Section 68 of the Indian
Evidence Act. According to the plaintiffs, if any evidence is sought to be
adduced to prove the unchallenged and undisputed Will, it might amount to over
egging the pudding. Precisely and pithily, such a view of the plaintiffs is
enormously wrong in the eye of law.

29. Both sides in the course of their arguments drew my attention to the
relevant portion in the cross-examination of the first defendant, wherein there
was a challenge to the said Will by the second defendant. As such, implied
admissions et al would not in any manner be taken as proof of a Will. Mere
marking of a Will is different from proving it, I need not further elaborate on
it. As such, there was sheer misunderstanding of the procedural aspects involved
in putting forth the Will as evidence on the side of the plaintiffs; wherefore,
I hold that the Will was not proved strictly as per Section 68 of the Indian
Evidence Act. I am of the view that one other issue also could be framed in
this regard thusly:

“Whether the plaintiffs proved the Will executed by Kuppusamy in favour of
Rajammal and the third plaintiff?”

30. A fortiori, the Courts below failed to concentrate on these aspects
highlighted supra. On balance, the judgment of the first appellate Court has to
be set aside, remitting the matter back to the trial Court would make the
parties to wait for getting justice endlessly. The substantial questions of law
are answered accordingly. Consequently, the judgment and decree of the first
appellate Court is set aside and the matter is remitted back to the first
appellate Court which is the last Court of facts, to decide the matter afresh
after formulating the appropriate points for consideration on the aforesaid
additional issues framed by me. Both sides shall be given due opportunity to let
in additional evidence on their side. The first appellate Court shall deal with
the matter strictly in accordance with law, untrammelled and uninfluenced by any
of the observations made by this Court on the merits of the case as
expeditiously as possible preferably within a period of four months from the
date of receipt of a copy of this judgment. Both the parties shall appear before
the first appellate Court on 21.11.2011.

31. For clarity sake, I would like to set out hereunder the additional
issues framed by this Court for being dealt with by the first appellate Court:

“(i)Whether Ex.B.1 – the sale deed dated 04.11.1990 executed by the first
defendant during the life time of Rajammal – the life estate holder, could be
held to be valid even though the third plaintiff, the vested reminder and her
son – the second plaintiff attested Ex.B.1?

(ii)Whether the defendants could plead anything contrary to the recitals
in the sale deed in view of the embargo as embodied in Section 92 of the Indian
Evidence Act and more specifically, relating to payment of sale consideration?

(iii) Whether the principle of estoppel could be pressed into service by
the defendants as against the plaintiffs on the ground that the second plaintiff
and the third plaintiff signed as attestors to the said sale deed – Ex.B.1?

(iv) Whether the plaintiffs proved the Will executed by Kuppusamy in
favour of Rajammal and the third plaintiff?”

32. In the result, the second appeal is allowed to the extent indicated
above. Consequently, the connected Miscellaneous Petition is closed. No costs.

rsb

To

1.The Principal Subordinate Court, Melur.

2.The District Munsif Court, Melur.

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