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Judgment
Abdul Hadi, J.—The Second Appeal 617 of 1993 and L. P. Appeal 245 of 1993 are connected proceedings and hence they are taken up
together. Parties in both the proceedings are one and the same and so, they will be referred to herein as per their respective ranks in O. S. 2421 of
1988 on the file of 4th Assistant Judge, City Civil Court, Madras (hereinafter referred to as ""formal suit"") out of which the above second appeal
arises.
Defendant in the said former suit (Kanakarathinam) is the appellant in the second appeal, which has been preferred against the reversing
judgment and decree, dated 16-3-1993 in favour of the plaintiffs 1 and 2 therein (respondents herein), passed in A.S. 254 of 1992 on the file of
5th Additional Judge, City Civil Court, Madras, The said former suit which was dismissed by the trial court is for declaration of plaintiffs'' title to
the suit house bearing Door No. 243, Arcot Road, Vadapalani, Madras pursuant to the registered settlement deed dated 7-6-1973 executed by
the defendant and her deceased husband Jagannathan Reddiar in favour of the said plaintiffs, (Perumal and Sumathy) for the declaration that the
deed of revocation of the above said registered settlement, dated 17-6-1983 executed by the defendant is void and for a direction to the
defendant to vacate the portion of the suit property in her occupation and deliver vacant possession thereof to the plaintiffs. The above said
Jagannathan Reddiar died on 17-7-1980 and their daughters are the 2nd plaintiff Sumathi (PW 2) and one Hemalatha (PW 2) and their sons are
one Kirubaram and Venkataram (DW 2).
The defendant also filed a suit in O.S. No. 10620 of 1992 on the file of 3rd Assistant Judge, City Civil Court, Madras (hereinafter referred as
latter suit) that is, about four years after the above referred former suit. The abovesaid L.P. Appeal No. 245 of 1993 filed by the abovesaid
plaintiffs in the former suit arises out of I.A. No. 21772 of 1992 in the said O.S. No. 10620 of 1992, which also relate to the abovesaid house
property. In this latter suit, the said defendant sought for possession of a portion of the said property, for mandatory injunction to remove the
obstructions that prevented access to the said house property and for injunction to restrain the abovesaid plaintiffs in the former suit from collecting
rents from the said property and for mesne profits. In the said latter suit, the above-said I.A. sought for temporary injunction, pending suit, against
interference of possession and also for mandatory injunction as prayed for in the suit etc. The said I. A. was allowed by the trial court by order
dated 22-12-1982. (Thus, this order in the abovesaid I.A. is subsequent to the judgment and decree in the former suit but before the judgment and
decree in A.S. No. 254 of 1992). The said order has also been confirmed by the order dated 18-11-1993 in C.M.A. No. 52 of 1993 on the file
of this court. Therefore, aggrieved by the said concurrent order, the plaintiffs in the former suit; has preferred the abovesaid L.P.A.
So, it is clear, from what is narrated above, that the dispute in both proceedings in between the mother on the one hand, and her daughter
(Sumathy) and the latter''s husband on the other hand, in relation to the above-said house in question, and that the dispute is whether the settlement
deed Ex.A.1 dated 7-6-1973 executed by both mother and father in favour of the said daughter and son-in-law is valid. (Though the said father
also executed the said deed, as per recital in Ex.A.2, and as per Ex.A.14 (28.2.1951) by which above the defendant purchased the site in
question, he was not the owner thereof but the mother alone was the owner. It is also in evidence that she alone put up house building thereon.)
Though the mother has executed the said settlement deed on 7-6-1973 the said document was registered only on 28-9-1973. After the death of
her husband, she has Executed the abovereferred to deed of revocation of the settlement (Ex.A.26) on 17-6-1983, that is about ten years after the
execution of the said settlement.
The main argument of learned counsel for the defendant before us is that when the said settlement was executed, the defendant was made to
understand that only a part of the said property was given therein and that too, to the abovesaid daughter Sumathy only and not to the son-in-law
Perumal and that even the said grant can be enjoyed by the daughter only after the life time of the defendant. In other words, according to the said
counsel, there were misrepresentations and fraud in the execution of the said settlement and that is why, it was not valid, and the subsequent
revocation of the settlement was aiso executed by her son after she came to know the same. It is this argument which was projected by the said
counsel as the substantial question of law arising in this case.
But, first of all, we must point out that such a question has not been formulated by this case (sic) when the second appeal was admitted. The
substantial questions of law"" formulated by this court then are only the following:--
Whether Ex.B.15 xerox copy of the discharge certificate of loan is a clear proof that this appellant/defendant has discharged the loan?
Whether the promise of giving an immovable property to the bride in consideration of the marriage is dowry or not?
Whether the conveyance of her (defendant/appellant''s) property to the 1st respondent/plaintiff is in accordance with the promise in connection
with her marriage?
Thus we find that the abovesaid points raised first by the counsel as ""substantial questions of law"" do not figure in the ""substantial questions of law
formulated by this court at the time of admission of the second appeal. Nor such points have been raised ""precisely"" in the grounds of appeal by
the appellants as required under S. 100(3), C.P.C.
6-A. Anyway, since the said points have been argued foremost by the said counsel we shall lake up the same first, to find out whether there is any
error in that regard committed by the lower appellate court and if so, whether the said error would really give rise to any substantial question of
law.
The said arguments of the counsel cannot hold water at all since no particulars of any alleged fraud or misrepresentation have been pleaded at all
by the defendant in the written statement. This is what lower appellate court has also rightly observed. The relevant pleading in the written
statement is only as follows:--
The alleged registered deed of settlement dated 7-6-1973, ""executed"" by late Jagan-natha Reddiar, the husband of this defendant was tainted
with fraud and illegality. This defendant did not ""intend"" to execute any such document. The allegation on the date of the registration of settlement
deed i.e. from 28-9-1973, the title and ownership in respect of the house property at No. 243, Arcot Road, passed on the plaintiffs, and the said
settlement is irrevocable is false, since the alleged settlement ""executed by defendants late husband"" was void and unenforceable and it has been
revoked by registered deed of revocation dated 18-6-l983"" Thus we find first of all that even in the manner in which the above referred to
argument has been advanced before us, there is no plea in the written statement. Further though the words ""fraud"", ""illegality"" and ""void and
unenforceable"" are used in the above said extracted passage, absolutely no particulars thereof have been given at all in the written statement. Order
6, Rule 4 C.P.C., says.
In all cases in which the party pleading relies on any misrepresentation, fraud breach of trust, wilful default, or undue influence and in all other
cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary)
shall be stated in the pleading"".
It is settled law that as per this rule, necessary and material facts should be pleadedin support of the case set up and that in the absence of
pleadings, evidence if any produced cannot be considered. The object of the rule is that in order to have a fair trial it is imperative that the party
should state the essential material facts so that the oiher party may not be taken by surprise. No doubt, the learned counsel for the defendant
argued that the pleadings should receive liberal construction and that if the parties knew the case and proceeded to trial on a certain issue by
producing evidence, it would not be open to the other party to raise a question of absence of pleadings in appeal. But we do not think such a
liberal construction is warranted in this case.
Anyway, even assuming that such a liberal construction is warranted in this present case, we do not find any merit in the claim made by the
defendant that the above said settlement deed is not valid. The lower appellate court has given cogent reasons for coming to the conclusion it
reached. It has also been held in Ram Sewak Dubey and Others Vs. Smt. Ajirana and Others, -- that a finding of fact regarding fraud and undue
influence is not liable to be interfered with in second appeal. It is significant to point out that Supreme Court has held that the High Court should not
travel beyond the proper limits of second appellate Jurisdiction by disturbing the concurrent findings of fact (vide Bholaram Vs. Ameerchand, ).
Further, in Smt. Annapoorani Ammal Vs. G. Thangapalam, and in R. Ramachandran Ayyar Vs. Ramalingam Chettiar, the Supreme Court held that
even if the lower appellate Court reverses the finding of the trial court, the High Court cannot interfere with a finding of fact.
Very often the counsel for the defendant stressed the fact that in the present case, a very old woman has executed the above said Ex. A1
settlement deed and her version that there was misrepresentation or fraud must be accepted. In fact, the counsel at one stage even sought to
advance the argument that there was undue influence in executing the Ex. A1, but there is absolutely no basis whatsoever either in the pleadings or
evidence in support of such an argument.
Even with reference to the alleged misrepresentation or fraud, it must be noted that Ex. A1 was not only executed by the defendant but also by
her husband and that after the said execution in 1973 the defendant''s husband lived till 1980. Further even the defendant has signed Ex. A1 in
English. That may also give out her level of education to some extent. Further, in the said document the defendant''s other daughter Hemalatha PW
3 and the son Venkatram DW 2 have attested. D W 2 is a retired Regional Manager of Co-optcx (Vide PW 2) and there was no whisper by him
of any such alleged misrepresentation or fraud at the time of the execution of Ex. A1. He only deposed vaguely ""Settlement"" He did not say what is
that and in which he came to know about it. Further, as per the evidence of PW 2 (2nd plaintiff) (on which there was no cross-examination) at the
time of execution of Ex. A1, apart from executants and plaintiffs, PW 3, DW 2 and PW 3''s husband were present Further, the alleged
misrepresentation or fraud was not even put to PW 1 in cross-examination in the manner in which it is now argued. The suggestion that was put to
him was different and that is borne out by the following deposition of him in cross:--
*
Further PW 3 also deposed that her father knew to read Tamil. The lower appellate Court also points out that it is admitted that defendant''s
husband is a pensioner, educated and having wordly experience.
In the circumstances, it cannot also be believed that for ten years after the execution of Ex. A1, the defendant was not aware of the alleged
misrepresentation or fraud played upon her to secure the said document. Only in 1983, she has chosen to execute the cancellation document Ex. A
2s alleging the abovesaid mirepresentation of fraud. Further, as learned counsel for the plaintiffs points out the settlement itself was an onerous one
since already the subject matter of the settlement was mortgaged on 22-8-1972 by the defendant as borne out by Ex. A13 mortgage deed and
that even as per the recital in Ex. A1 the plaintiffs have to discharge the said mortgage, Ex. A13. It is also borne out from Ex. A3 that the plaintiffs
have discharged the same subsequently. That is why the original document had been returned to the plaintiffs. In the circumstances, the lower
appellate court not relying on the xerox document Ex. B15, cannot give rise to a substantial question of law at all. Further, we also see no reason
to differ from the lower appellate court in its appreciation of evidence in this regard.
11A. Further though Ex. A1 was executed on 7-6-1973 it was registered more than three months later i.e. only on 28.9.1973. It is also in
evidence that the plaintiffs were in Coimbatore at that time when the document was registered at Madras. Further it is also in evidence that the
original settlement deed aiso remained with the defendant from the date of execution till the date of registration. These features also belie story of
misrepresentation of fraud or illegality as now argued by the learned counsel for the defendant.
These apart as the lower appellate court has also rightly pointed out the recitals in Ex. A8 also, go against the case of the defendant. Ex. A8 is
dated 11-6-1981 and It is a settlement deed by the defendant in favour of her son Kirubaram in respect of well. The said Kirubaram was earlier
given under Ex. A12 dated 11-6-1968, a portion of the property which the defendant purchased under Ex. AI4 document in 1951 (The remaining
portion thereof is the suit property) Ex. A8 was executed in 1981. Since, when Ex. A12 document was executed earlier, there was no reference to
a well found in Ex. A12 property, the above referred to Ex. A8 was executed in respect of the well. Even in this document executed by the
defendant there are recitals about the execution of Ex. A1 and its registration. But in Ex. A8 there is no whisper that Ex. A1 was executed only to
daughter Sumathy and not to son-in-law or that the daughter has to take or enjoy the house only after the life time of the defendant or that only a
part of the suit property was given under Ex. A1. The lower appellate court also points out that even PW 3 Hemalatha the other daughter of the
defendant was not cross-examined on the above said footing.
The lower appellate court has also given other valid reasons for coming to the conclusion it reached and it is not necessary for us to specifically
refer to all of them. There is absolutely no difficulty in confirming the judgment and decree of the lower appellate court. At any rate, the learned
counsel for the defendant could not advance and argument warranting us to conclude that the case involves any substantial question of law in which
the court below has erred. Even with reference to No. (2) + (3) of the ""substantive question of law"" as originally formulated by this court at the
time of admission of the S. A. We have to state that there is no plea or proof regarding the same.
No doubt learned counsel for the defendant also submitted that the suit is barred by limitation on the footing that the plaintiff cannot seek to set
aside Ex.A. 26 cancellation deed, out of time. This contention also is absolutely devoid of any merit, when Ex. A1 is a valid document, as has been
found by him also, it automatically follows that Ex. A 26 is non est and absolutely has no validity at all and so the question that it has to be set aside
does not at all arise.
Learned counsel also sought to submit faintly that the defendant having been in possession of the said suit house for a very long time, despite
Ex. A1 settlement in 1973, it should be held that the defendant prescribed title by adverse possession. This argument also has absolutely no merit.
It is clear that her possession is only permissive possession as has been rightly held by the lower appellate court, and also borne out by several
documents relied on by the court below for coming to the said conclusion. The relationship between the parties also would lead us to the same
conclusion. Easily it may also be pointed out that Section 68 of the Evidence Act has no application to the present case, the factum of execution of
Ex. A1 being -not in dispute. Hence there is absolutely no justification for our interference u/s 100 C.P.C.
Regarding the L.P. Appeal, we have initially to point out the following observa- tion made in the appellate order dated 18-11-1993 in the
above referred C.M. A. 52 of 1993.
I have carefully scrutinised the order passed by the court below and I am in total agreement to the submission made by Mr. S. V. Jayaraman, the
learned counsel appearing for the appellants (i.e. plaintiffs in O.S. 2421 /1988) that it has not at all considered the materials placed by the rival
sides"".
However, the learned Judge observed consequently as follows:--
But on that score, 1 do not feel it necessary to set aside and remit the matter back to the court below since on the materials placed before me, I
am clear that the order of the Court below can be sustained. Though interim mandatory injunction till the disposal of the suit is a rare remedy, the
materials and facts available in this case, do warrant grant of such injunction and I find absolutely no ground to set aside the order"".
But the learned Judge has not pointed out the materials and facts available which according to him warrant confirming the order of the trial court in
I.A. At any rate in the light of our above decision, confirming the judgment and decree of the lower appellate court in A.S. 254 of 1993, there is no
scope at all for granting the prayer in the above said I.A. in O.S. 10620 of 1992. Therefore, L.P.A. has necessarily to be allowed and the order in
C.M.A. 52 of 1993 and the order in LA. are necessarily to be set aside.
No doubt, the learned counsel for the defendant also sought to argue that L.P.A. itself is not maintainable since the order in C.M.A. is not a
judgment"" within the meaning of Clause 15 of the Letters Patent. This argument also is devoid of any merit. It is well settled that Interlocutory
orders as the present one can also be judgment under the said Clause 15. It is not necessary that the court should pass a final decree or final order
in order that an appeal under Clause 15 should He (Vide ILR (1912) Mad. 1 ,T.V. Tuljaram Row v. M. K. R. V. Alagappa Chettiar, AIR 1955
Bom 256 and Shah Babulal Khimji Vs. Jayaben D. Kania and Another, ) Therefore, the order C.M.A. is a judgment within the meaning of clause
15 of the Letters Patent. Therefore, the net result is Second Appeal is dismissed and L.P.A. is allowed. In view of the relationship between the
parties, we are not awarding costs in both the appeals.
Order accordingly.