Mahadhoon Beevi vs R. Gunasekaran and Chithi Kamila Begum

R.S. Ramanathan, J.—The second Defendant, who lost in both the courts below is the Appellant.

The first Respondent herein filed the suit in O.S. No. 14 of 2004 on the file of the Subordinate Judge, Ramanathapuram for declaration that he is

the absolute owner of the suit property and for recovery of possession of the suit property from the Appellant and the second Respondent for

mesne profits.

The case of the first Respondent was that the suit property originally belonged to the Appellant herein and she gifted the said property under a

gift deed dated 4.9.1985 to the second Respondent and the second Respondent also accepted the gift and the possession also was delivered to

the second Respondent herein and she sold the property to one Muniyasamy under a registered sale deed dated 15.7.1993 and thereafter, the

second Respondent herein purchased the said property from Muniyasamy under a registered sale deed dated 4.1.1994 and the second

Respondent sold the property to one Alexander, the vendor of the first Respondent under a registered sale deed dated 24.5.1995 and at the time

of selling the property by the second Respondent to Alexander, the second Respondent requested the said Alexander to give her time for vacating

the premises. The said Alexander also gave his consent and allowed the second Respondent to stay in the house for some time and thereafter, the

property was purchased by the first Respondent herein from Alexander under a registered sale deed dated 16.6.1995 and after his purchase, the

first Respondent approached the second Respondent herein and requested her to vacate and hand over possession and though initially the second

Respondent agreed, thereafter, she refused and gave a false complaint and therefore, a notice was issued to the Appellant and the second

Respondent and as they failed to vacate, the suit was filed for the relief prayed therefore.

The Appellant and the second Respondent filed separate written statements and it is contended by the second Respondent that the sale deed

alleged to have been executed by her in favour of Alexander was a forged one and she has not executed any sale deed and she does not know

Alexander or the first Respondent and according to her, her husband was doing business along with Alexander and the first Respondent herein and

it was alleged by the first Respondent and Alexander that there was a loss in the businesses and the second Respondent''s husband was threatened

to pay a sum of Rs. 6,63,000/- and as he failed to pay, the son of the Appellant was kept in illegal custody by the first Respondent herein and

Alexander and thereafter this document was obtained from her and it is a forged one. It is further stated that the properties are owned by the

Appellant and the second Respondent has no right and title over the same. The Appellant also corroborated the statement of the second

Respondent herein and contended that she is the owner of the suit property and the gift deed executed by her in favour of the second Respondent

did not come into effect and she is in possession and enjoyment of the suit property and the second Respondent has no right to execute the sale in

favour of Alexander and therefore, the first Respondent herein will not get any title over the same.

The Trial Court after appreciating the oral and documentary evidence held that the gift deed, Ex.A5 executed by the Appellant in favour of the

second Respondent was a valid gift and it was acted upon and the second Respondent herein became the absolute owner of the said property and

under Ex.A6, she sold the property to one Muniyasamy and thereafter, she purchased the same from Muniyasamy under Ex.A7 and after she

became the owner of the property, she executed a sale deed in favour of Alexander under Ex.A2 and Alexander sold the property to the Plaintiff

under Ex.A1 and the House Tax Receipts stand in the name of the first Respondent and therefore, the first Respondent is the owner of the

property and he is entitled to recovery of possession from the Appellant and the second Respondent who are in illegal occupation of the property.

The lower appellate court also considered the evidence both oral and documentary and independently came to the conclusion that the first

Respondent became the owner of the property and the second Respondent had clearly admitted in evidence that the gift deed executed by the

Appellant had come into force and she got possession of the property and she also executed the sale deed in favour of Alexander and therefore,

the Trial Court has rightly held that the property is the property of the first Respondent and dismissed the first appeal. Aggrieved by the same, the

second appeal is filed by the second Defendant.

The Appellants raised substantial questions of law and having regard to the pleadings and evidence, the following three substantial questions of

law arise in this second appeal:

Whether the courts below have given weight age to the admission made by the Plaintiff on Ex.B1 that the first Defendant has been staying on the

suit property as a tenant in the light of Section 58 of the Indian Evidence Act.

Whether the courts below have taken note of the fact that the gift deed dated 5.9.1985 was not at all acted upon even as per the evidence of

PW1.

It is contended by the learned Counsel for the Appellant Mr. Singaravelan that in the notice issued by the first Respondent, Ex.A3, the first

Respondent has admitted that the Appellant and the second Respondent herein are in possession of the property as tenant and therefore, the first

Respondent is not entitled to the relief of recovery of possession and he is stopped from going back on his words and it is not open to him to

contend that the Appellant and the second Respondent are not tenants and they are only trespassers. He further submitted that u/s 58 of the

Evidence Act, no fact need to be proved in any proceeding when the same is admitted by parties either at the hearing or in the pleading. In this

case, the first Respondent has stated in the notice that the Appellant and the second Respondent are only tenants and therefore, it is admitted by

the first Respondent that the Appellant is a tenant of the suit property and therefore, the first Respondent is not entitled to the relief of recovery of

possession.

As per Section 58 of the Evidence Act, when any admission is made at the time of hearing or before hearing or when the parties admit any fact

by any writing under their hands in the pleadings, then such fact need not be proved. In other words, when admissions are made by the parties

after filing of the suit, either in the pleadings or in the course of trial, that fact need not be proved.

Section 58 of the Evidence Act must be read along with Section 31 of the Evidence Act wherein it is stated that admissions are not conclusive

proof of a matter admitted but, they may operate as estoppels under the provisions thereinafter contained. Therefore, when the admissions are

made during the trial or in the pleading, such admissions cannot be taken as conclusive proof of the matters admitted, but, they may operate as

estoppels.

In this case, though the first Respondent has stated in the notice that the Appellant and the second Respondent are in possession of the

property as tenants, that plea was not taken by him in the pleading and it is also not the case of the Appellant and the second Respondent that they

are the tenants under the first Respondent and they are in possession of the property in the capacity of tenants and therefore, they cannot be

evicted. On the other hand, the specific case of the Appellant was that she is the owner of the suit property and the gift deed executed by her in

favour of the second Respondent was not acted upon and she continued to be in possession of the property as a owner and there was no oral

agreement between the first Respondent and second Respondent as alleged by the first Respondent after the purchase of the suit property by the

first Respondent and the second Respondent herein also did not take up a plea of tenancy in her written statement. No issue was framed regarding

the tenancy right by the Appellant before the Trial Court and no evidence was also let in respect of the tenancy right.

It is a settled law that without pleading, no amount of evidence can be let in and without pleading or evidence, no new point can be allowed to

be raised in the second appeal. The plea of tenancy was not raised by the Appellant or by the second Respondent either during trial or during the

first appeal stage and for the first time, it was raised in the grounds of appeal and therefore, in the absence of any pleadings and evidence, it is not

open to raise the plea of tenancy in the second appeal. For all these reasons, the first substantial question of law is answered against the Appellant.

Even though it was contended by the Appellant and the second Respondent that the sale in favour of Alexander by the second Respondent

herein was a fabricated one and it was not a valid sale deed, having regard to the admission of the second Respondent herein, both the courts

below have rightly held that the sale deed in favour of Alexander executed by the second Respondent was a valid one. Both the courts below have

extracted the admission of the second Respondent in evidence wherein she has stated that in the sale deed executed by her in favour of Alexander

under Ex.A2, her husband signed as an attesting witness and she has not objected to the sale deed. Her mother the Appellant herein did not object

to the sale by her in favour of Alexander. She has admitted that it is the custom of the Muslims of Keezhakarai to give house to the daughters and

therefore, the Appellant gifted the suit property to her and thereafter, she is residing with the second Respondent. She further admitted that after

the sale deed in favour of the first Respondent, House Tax was also transferred in his name and the first Respondent is paying the House tax. The

Appellant also admitted in her evidence that under Ex.A5, she gifted the suit property to her daughter the second Respondent herein and the

original document of title was also handed over to her and she is in possession and enjoyment of the same.

Therefore, from the admission of the Appellant, it is made clear that she has validly executed the gift deed and also parted with possession to

the second Respondent, her daughter and thereafter, the second Respondent validly sold the property to Alexander and from the said Alexander,

the Plaintiff purchased the property. Therefore, considering the admissions made by the Appellant and the second Respondent, both the courts

below have rightly held that the gift deed Ex.A5 was acted upon and the second Respondent herein became the absolute owner of the suit

property and she sold the property to Alexander and from Alexander, the Plaintiff purchased the property.

Being the concurrent findings of fact, I am satisfied with the said findings and those findings do not call for interference. Hence, the second

substantial question of law is also answered against the Appellant.

In the result, judgment and decree of both the courts below are confirmed. The second appeal is dismissed. No costs.