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Judgment
A. Selvam, J.—Challenge in this second appeal is to the concurrent judgments passed in Original Suit No. 137 of 1992 by the Subordinate Court, Sivagangai and in Appeal Suit No. 45 of 1995 by the District Court, Pasumpon Muthuramalingam Thevar District at Sivagangai.
The appellant herein as plaintiff has instituted Original Suit No. 137 of 1992 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as defendants.
The epitome of the plaint is that the suit property is originally belonged to the first defendant and the plaintiff has purchased the same under a registered sale deed dated 04.03.1988 and since then the plaintiff has been enjoying the suit property. The plaintiff has put up compound wall and tiled house in the suit property. The plaintiff has obtained water connection in her name. In order to blackmail the plaintiff, the first defendant has cancelled the sale deed dated 04.03.1988. Under the said circumstances, the present suit has been instituted for the reliefs indicated supra.
The nubble of the written statement filed by the first defendant is that the first defendant has not executed the sale deed dated 04.03.1988 in favour of the plaintiff and he has not received sale consideration mentioned in the said sale deed. The plaintiff and her husband have represented that they purchase the house bearing Door No. 73/12 and after effecting repairs, it will be given to the first defendant. Due to misrepresentation and also believing their words, the first defendant has executed the sale deed in question. The husband of the plaintiff and his friend by name Balaguru have obtained signatures and thumb impressions of the first defendant on blank stamp papers and subsequently, they concocted the sale deed in question. The sale deed in question is nothing but a sham and nominal and the same has not conveyed any valid title to the plaintiff. There is no merit in the suit and the same deserves dismissal.
In the written statement filed on the side of the second defendant, it is stated that the cancellation deed dated 26.06.1990 has been registered in accordance with law and the second defendant is an unnecessary party to the present suit and therefore, the present suit deserves dismissal.
The material averments made in the written statement filed by the third defendant are that the cancellation deed dated 26.06.1990 has been made in accordance with law and the third defendant is an unnecessary party to the present suit and therefore, the present suit deserves dismissal.
On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after pondering both the oral and documentary evidence, has dismissed the suit. Against the judgment and decree passed by the trial Court, the plaintiff as appellant has preferred Appeal Suit No. 45 of 1995 on the file of the first appellate Court. The first appellate Court, after hearing both sides and after reappraising the evidence available on record, has dismissed the appeal, whereby and whereunder confirmed the judgment and decree passed by the trial Court. Against the concurrent judgments, the present second appeal has been filed at the instance of the plaintiff as appellant.
At the time of admission of the present second appeal, the following substantial questions of law have been formulated for consideration;
a) Whether the approach of the Courts below in canvassing the title of the plaintiff and canvassing the capacity to pay the sale consideration is correct?
b) Whether the judgments and decrees of the Courts below have been vitiated by not finding the correct question viz., whether the cancellation of the sale deed is valid or not?
c) Whether the Courts below have erred in wrongly throwing onus on the plaintiff?
The sum and substance of the case of the plaintiff is that the suit property is originally belonged to the first defendant and he sold the same under a registered sale deed dated 04.03.1988 in favour of the plaintiff and since then the plaintiff has been in possession and enjoyment of the suit property and the first defendant without giving notice to the plaintiff has cancelled the sale deed dated 04.03.1988 by way of executing a cancellation deed dated 26.06.1990. Under the said circumstances, the present suit has been filed for the reliefs sought for in the plaint.
Per contra, it has been contended on the side of the first defendant that the plaintiff is the owner of the house bearing Door No. 73/12 and both the plaintiff and her husband have represented that after making repairs, they decided to hand over the same to the first defendant and believing their words, the first defendant has executed the sale deed in question on 04.03.1988 and the same is nothing but an exchange deed and not supported by consideration and therefore, no valid title has been passed in favour of the plaintiff.
The Courts below have concurrently found that the sale deed dated 04.03.1988 is nothing but void and the same has not conveyed any valid title to the plaintiff and ultimately non-suited the plaintiff.
12.Before excogitating the rival submissions made by either Counsel, the Court has to analyse the legal point involves in the present second appeal.
The specific contention of the plaintiff is that the sale deed dated 04.03.1988 is supported by consideration and the specific contention first defendant is that the sale deed dated 04.03.1988 is nothing but an exchange deed and the same is not supported by consideration and further the plaintiff has not derived valid title under the said sale deed. The sale deed dated 04.03.1988 has been marked as Ex.A1.
From the rival pleadings raised on either side, the Court can easily discern that on the side of the first defendant it has been specifically pleaded that Ex.A1 is not supported by consideration and the same has not conveyed a valid title to the plaintiff.
Section 2 of the Indian Contract Act deals with consideration, wherein it has been specifically stated every promise and every set of promises, forming consideration of each other, is an agreement.
Section 25 of the said Act deals with agreement without consideration and the same reads as follows;
Agreement without consideration, void, unless it is in writing and registered or is a promise to compensate for something done or is a promise to pay a debt barred by limitation law - an agreement made without consideration is void, unless-
(1) it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other; or unless.
(2) it is a promise to compensate, wholly or in part, a person who has already voluntarily done something for the promisor, or something which the promisor was legally compellable to do; or unless.
(3) it is a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorised in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits.
In any of these cases, such an agreement is a contract.
From the close reading of the said Sections of the Indian Contract Act, the Court can easily ken that for a valid contract, there must be a consideration and if there is no consideration, the contract itself is void.
With these legal backdrops, the Court has to analyse the rival submissions made by either counsel.
The learned Counsel appearing for the appellant/plaintiff has strenuously contended that the suit property is originally belonged to the first defendant and he expressed his willingness to sell the same to the plaintiff for a sum of Rs. 25,660/- and the plaintiff has purchased the suit property under a registered sale deed dated 04.03.1988 which has been marked as Ex.A1 and the first defendant has also handed over the sale deed which stands in his name and the same has been marked as Ex.A2 and in pursuance of Ex.A1, the plaintiff has constructed compound wall etc., in the suit property and electricity connection as well as water connection have also been changed in the name of the plaintiff and in order to blackmail the plaintiff, the first defendant has cancelled Ex.A1 by executing a cancellation deed dated 26.06.1990 which has been marked as Ex.B2 and on the side of the plaintiff PWs.1 to 3 have been examined so as to prove that Ex.A1 is supported by consideration and the Courts below without considering the evidence of PWs.1 to 3 and also Exs.A1 & A2, have erroneously non-suited the plaintiff and therefore, the concurrent judgments passed by the Courts below are liable to be interfered with.
In order to remonstrate the argument advanced by the learned Counsel appearing for the appellant/plaintiff, the learned Counsel appearing for the first respondent/first defendant has also equally contended that the plaintiff is the owner of the house bearing Door No. 73/12 and the plaintiff and her husband have expressed their willingness to hand over the same to the first defendant after effecting repairs and as an exchange, the first defendant has executed Ex.A1 and Ex.A1 is not supported by consideration and further on the side of the plaintiff, no trustworthy evidence has been forthcoming so as to prove the alleged passing of sale consideration under Ex.A1 and therefore, Ex.A1 has not conveyed any valid title to the plaintiff and the Courts below, after making threadbare discussion, have rightly non-suited the plaintiff and therefore, the concurrent judgments passed by the Courts below are not liable to be interfered with.
Basing upon the divergent submissions made by either Counsel, the Court has to analyse as to whether Ex.A1 is supported by consideration and the same has conveyed any valid title to the plaintiff.
In Ex.A1, two witnesses namely Edagam and Balaguru have put their signatures as witnesses. One of the witnesses by name Balaguru has been examined as PW2. He would say in his evidence even during the course of chief examination that the entire sale consideration has been paid by the plaintiff to the first defendant in his presence and in the presence of others. The plaintiff has been examined as PW1. She would say in her evidence that on the date of registration, her husband has given the sale consideration of Rs. 25,660/- to the first defendant and further she would say in her evidence that her husband has pledged her jewels and obtained money so as to give to the first defendant. The husband of the plaintiff has been examined as PW3. He would say in his evidence during the course of cross-examination that except Ex.A1 he is not having any other document to show that he possessed of Rs. 25,660/-.
From the evidence of PWs.1 to 3 the following factual aspects have become emerged;
a) The plaintiff as PW1 has stated in her evidence that on the date of registration of Ex.A1 her husband viz., PW3 has given Rs. 25,660/- to the first defendant and further she has stated that her husband has pledged her jewels and obtained money so as to give the same to the first defendant.
b) One of the witnesses by name Balaguru viz., PW2 would say in his evidence that the plaintiff has given the sale consideration of Rs. 25,660/- to the first defendant directly.
c) The husband of the plaintiff viz., PW3 has stated in his evidence that he is not having any document to show that he possessed of Rs. 25,660/- on the date of execution of Ex.A1.
In Ex.A1 it has been clearly stated that sale consideration mentioned therein has already been given to the first defendant to meet out his family expenses and also for discharging the debts incurred by him. As adverted to earlier, the plaintiff has stated in her evidence that only on the date of registration, the sale consideration has been paid. Ex.A1 has been written on 04.03.1988 and the same has been registered on 08.03.1988. From the evidence of PW1, the Court can easily come to a conclusion that only on 08.03.1988 the sale consideration has been paid to the first defendant. But, in Ex.A1 it has been clinchingly stated that sale consideration has been paid prior to the execution of Ex.A1 i.e., on 04.03.1988. Further with regard to passing of consideration, contra evidence is available between the evidence of PWs.1 & 2 and further on the side of the plaintiff, except the recitals found in Ex.A1, no document has been filed so as to prove the source of sale consideration mentioned in Ex.A1. The plaintiff has stated in her evidence that her husband has pledged her jewels but her husband viz., PW3 has not stated anything about the alleged pledging. Therefore, from the evidence adduced on the side of the plaintiff, the Court can easily come to a conclusion that on the side of the plaintiff, passing of consideration under Ex.A1 has not at all been proved.
As adverted to earlier, the specific contention urged on the side of the first defendant is that Ex.A1 is not supported by consideration. It has already been pointed out that on the side of the plaintiff, it has not been proved that Ex.A1 is supported by consideration. As per Section 2 of the Indian Contract Act, consideration is also one of the essential ingredients of a valid contract. If a contract is not supported by consideration, the same is void u/s 25 of the said Act.
26.In the instant case, it has already been pointed out that on the side of the plaintiff, it has not been proved that Ex.A1 is supported by consideration mentioned therein. Therefore, it is quite clear that Ex.A1 is not supported by consideration. At this juncture, it would be more useful to look into the well known latin maxim "Ex nudo pacto non oritur action". It means, from a bare contract - i.e. a contract without consideration - an action does not arise.
In the instant case, it has been pointed out in many places that the plaintiff has virtually failed to prove that Ex.A1 is supported by consideration. Since Ex.A1 is not supported by consideration, as per the provision of Section 25 of the Indian Contract Act, the same is nothing but void. Since Ex.A1 is nothing but void, the same has not conveyed any valid title to the plaintiff and the plaintiff has no locus standi to institute the present suit for the reliefs sought for in the plaint.
The learned Counsel appearing for the first respondent/first defendant has accited the following decisions in support of his contention;
a) The first and foremost decision is reported in Lakshmi Narain Barnwal alias Lakshmi Narayan Vs. Jagdish Singh and Another wherein it has been clinchingly held that a sale deed not supported by consideration is not legally valid and the same has not conveyed any valid title to purchaser.
b) The second decision is reported in Rajagopal and Another Vs. Kaliaperumal, wherein also this Court has held that until sale consideration is passed, there is no effective transfer of ownership.
In fact, the decisions referred to supra have clearly encrusted the view taken by the Courts below as well as this Court in respect of Ex.A1 to the effect that the same is not supported by consideration and further the same is nothing but a void document.
The first and foremost substantial question of law framed in the present second appeal is as to whether the Courts below are correct in canvassing the capacity of the plaintiff to pay sale consideration and the second substantial question of law is as to whether the cancellation of sale deed is valid or not and the third substantial question of law is as to whether the Courts below have erred in law throwing onus on the plaintiff.
The specific contention of the plaintiff is that Ex.A1 is supported by consideration and the specific contention urged on the side of the first defendant is that Ex.A1 is not supported by consideration and the same is nothing but void. Therefore, the initial burden lies upon the plaintiff to prove that Ex.A1 is supported by consideration. Even assuming without conceding that the entire burden lies upon the first defendant to prove that Ex.A1 is not supported by consideration, from the evidence of PWs.1 to 3 the first defendant has clearly established that Ex.A1 is not supported by consideration. Even at the risk of jarring repetition, the Court would like to point out that the evidence of PWs.1 to 3 are mutually incongruous with regard to capacity of the plaintiff to pay consideration and also passing of the same to the first defendant.
It is an admitted fact that after execution of Ex.A1, the first defendant has executed Ex.B2, the cancellation deed dated 26.06.1990. It has already been pointed out in many places that Ex.A1 is a void document. Since Ex.A1 is a void document, the same need not be set aside. Therefore, Ex.B2 is nothing but unwarranted. Under the said circumstances, the substantial questions of law framed in the present second appeal are not at all having substance and the same are decided against the appellant/plaintiff.
The learned Counsel appearing for the appellant/plaintiff has also advanced a wee bit specious argument to the effect that in the trial Court an Advocate Commissioner has been appointed and he inspected the suit property and filed his report and plan, and the same have been marked as Exs.C1 & C2. In Exs.C1 & C2, the Advocate Commissioner has clinchingly stated that some constructions have been made and therefore, it goes without saying that the plaintiff is in possession of the suit property in pursuance of Ex.A1 and therefore, the plaintiff is having title to the suit property.
In fact, this Court has closely perused Exs.C1 & C2 and found that in the suit property some constructions have been made. The first defendant has been examined as DW1. He has categorically stated in his evidence that he has not put up any construction. Therefore, it is very clear that the plaintiff is in possession and enjoyment of the suit property. It has already been pointed out that Ex.A1 is a void document since the same is not supported by consideration. Even though the plaintiff is in possession of the suit property, her mere possession will not clothe title to the suit property by virtue of Ex.A1, a void sale deed. Therefore, the entire argument advanced by the learned Counsel appearing for the appellant/plaintiff is sans merit, whereas the argument advanced by the learned Counsel appearing for the first respondent/ first defendant is really having subsisting force.
The Courts below, after making elaborate discussion, have concurrently found that the plaintiff is not entitled to get the reliefs sought for in the plaint and further in view of the foregoing narration of both the factual and legal premise, this Court has not found even a flimsy ground to make interference with the well merited judgments passed by the Courts below and altogether the present second appeal deserves dismissal.
In fine, this second appeal deserves dismissal and accordingly is dismissed without costs. The judgment and decree passed Original Suit No. 137 of 1992 by the Subordinate Court, Sivagangai, upheld in Appeal Suit No. 45 of 1995 by the District Court, Pasumpon Muthuramalingam Thevar District at Sivagangai are confirmed.