S. Balasubramanian vs Murugaiyan

Mr. T. Raja, J.—The present Second Appeal has been brought by the unsuccessful defendants 1 and 2 against whom a suit for permanent injunction filed by the plaintiff/respondent herein not to alienate and also not to interfere with the peaceful possession and enjoyment of the suit property was decreed. As against the judgment and decree passed by the trial Court, when appeal was filed by the appellants 1 and 2, the first appellate Court accepting the case of the plaintiff/respondent also confirmed the judgment and decree.

2.(i) The plaintiff/respondent said to have purchased the suit property from one Padma, daughter of Kiruba Sankara Iyer on 31.5.1991 for valid consideration and a sale deed was also registered on 05.7.1991. Since then, the plaintiff/respondent has been in possession and enjoyment of the suit property. Since the suit property is an old house situated in Punjai Manikat having 0.42 cents with the compound wall, the first appellant herein, close relative of plaintiff''s vendor-Padma when attempted to alienate the property which has been in possession and enjoyment of the plaintiff for more than 12 years, in favour of the second defendant without any right, the suit was filed by the plaintiff/respondent on 4.3.2003 seeking permanent injunction not to alienate and also not to interfere with the peaceful possession and enjoyment of the suit property.

(ii) A detailed written statement was also filed taking two grounds therein that the plaintiff while purchasing the property from his vendor Padma, the said Padma had no title of saleable interest in the suit property for executing any sale deed dated 31.5.1991 marked as Ex.A.1. Since the suit property and other properties originally belonged to one Venkatrama Iyer, the grand-father of the first defendant had executed a will on 21.9.1938 and thus, the first defendant has become the absolute owner of the said will after the death of the said Venkatrama Iyer. By virtue of the will, since the second defendant had agreed to purchase the first item of the suit property for a total consideration of Rs.13,500/-, on receiving Rs.1,100/- advance, an agreement was also reached between D1 and D2 on 16.2.1991, but as agreed, the second defendant has not performed his part of the contract. But, possession was handed over to him at that time itself. However, after a long time, the second defendant has requested the first defendant to execute the sale deed in his favour. As there was some promise to execute the sale deed, later on, a fresh agreement dated 21.2.2003 was entered into between the defendants. Pursuant to the sale, a regular sale deed was executed on 10.3.2003. It was also contended that the plaintiff without verifying whether Padma was having valid title over the property has wrongly purchased the same and the first defendant being the real owner of the suit property has sold the same by way of sale agreement dated 16.2.1991 for valuable consideration of Rs.13,500/-. But, after some time, a fresh sale agreement was also entered on 21.2.2003-Ex.B3 for a sum of Rs.24,500/- and finally,the 2nd defendant has purchased the suit property on 10.3.2003 under Ex.B2. This being much prior to the filing of the suit that was filed only on 04.3.2003, the plaintiff/respondent herein without establishing the title and saleable interest over the suit property by the vendor Padma, the suit should be dismissed.

The trial Court, considering the case of both sides came to the conclusion that the vendor of the plaintiff/respondent, Padma being first defendant''s brother''s daughter, has sold the property by way of sale deed dated 31.5.1991-Ex.A.1 for valuable consideration to the plaintiff and only D2 is the second purchaser knowing pretty well that the suit property was already sold to the plaintiff has purchased not the suit property but only the litigation, decreed the suit.

The trial Court considering the will dated 21.9.1938 executed by late Venkatrama Iyer, in favour of the first defendant also came to the conclusion that the will was not executed as contemplated under Sections 68 and 69 of the Indian Evidence Act. Again, the trial court, while considering the question as to whether the first defendant had been really in possession and enjoyment of the first item of the suit property, taking judicial note of the fact that neither the first defendant nor the second defendant had filed any document to show their possession and enjoyment of the first item of the suit property, by also admitting the admission made by D2 that he purchased the suit property after knowing pretty well that the suit property had been already sold in favour of the plaintiff, held that the second defendant is not a bona fide purchaser for consideration and on that basis held that the second defendant had not purchased the property but only litigation.

Aggrieved by the judgment and decree passed by the trial Court the first appeal is filed by the defendants. The learned first appellate Court, agreeing with the findings and conclusions reached by the trial court, dismissed the first appeal.

As against that, the present Second Appeal has been filed under Section 100 C.P.C. This Court at the time of entertaining the Second Appeal has framed the following substantial questions of law.

"1. Whether the lower appellate Court erred in law in stating that presumption available to old documents under Section 90 of the Indian Evidence Act is not available to certified copy of original ?

Whether the respondent herein is entitled to maintain the prayer in this suit without proving title to the suit property ?

Whether the judgment of the lower appellate Court is vitiated in its not adverting to the oral evidence on record?

The learned counsel for the appellants submits that the learned first appellate court has committed an error in law in stating that the presumption available to old documents under Section 90 of the Indian Evidence Act is not available to the certified copy of the original.

8.(i) It is an admitted fact that under section 90 of the Indian Evidence Act, if any document is 30 years old, this Court may presume that such document is an admissible one. This is applicable only when the original document is placed before the Court. But, in the present case, Ex.B1 is the certified copy of the document obtained recently. Therefore, the learned first appellate Court has rightly come to the conclusion that the original having not been produced, the signature of the attestor and the executor of the document are required to be proved through witnesses. When D1 has failed to prove the execution of the will, the learned first appellate Court cannot be said to have committed any error while stating that the presumption available to old documents under Section 90 of the Indian Evidence Act is not available to the certified copy of the will. Accordingly, the first substantial question of law is answered against the appellant.

(ii) In respect of the second and third substantial questions of law, it is to be noted that the first defendant during his cross-examination has accepted that Smt. Padma is his brother''s sister and also admitted that he has acknowledged about the sale of the suit property in 1991 in favour of the plaintiff. Similarly, D2 also in his cross-examination has deposed that the suit items 1 and 2 are found within the fenced area and they are not in separate enclosures. Though the first item of the suit property was initially agreed to be sold for Rs.13,500/- in the year 1991 and for which agreement for sale was made on 16.12.97, later on the sale was not effected. However, it was admitted by D1 that the said Padma had already sold the suit properties in favour of the Plaintiff before the suit properties was sold in favour of D2. Since the plaintiff has been in possession and enjoyment of the suit properties from the date of purchase that was already known to the defendants, the learned first appellate court has also rightly come to the conclusion that D2, being subsequent purchaser having knowledge of the fact that the suit properties had been sold in favour of the plaintiff, cannot be considered as a bona fide purchaser for valuable consideration. Further, the suit was filed on 04.3.2003 and the first defendant by registered sale deed Ex.B2 dated 10.3.2003 had sold the suit property in favour of the second defendant i.e., six days after the filing of the suit. Therefore, it is also held that the second defendant who has purchased the suit property from the first defendant, without prior notice about the earlier sale, has not purchased the property but only litigation. In this view of the matter, the 2nd and 3rd substantial questions against the appellant are answered against the appellants.

(iii) When both the trial Court as well as learned first appellate court have correctly determined the issue raised by the parties, this Court under Section 100 C.P.C., cannot interfere with the concurrent findings of both the courts below. Further, this Court does not find any infirmity in the judgments and decrees passed by the courts below. In the absence of original will being not produced by the defendants, it is not open to the defendants/appellants to say that the courts below have failed to see that the will has been properly executed. The certified copy of the will is dated 21.9.1938.

Accordingly, the Second Appeal is dismissed. As a result, the judgments and decrees passed by both the Courts are confirmed. No costs.