Viswalingam @ Mayavel vs Balasubramanian

G. Rajasuria, J.—This Second appeal is focussed animadverting upon the judgment and decree dated 12.12.2012 passed in A.S. No. 15 of

2012 by the learned Subordinate Judge, Chidambaram, reversing the judgment and decree dated 15.03.2012 in O.S. No. 174 of 2008 passed by

the Additional District Munsif, Chidambaram. The parties are referred to hereunder according to their litigative status and ranking before the trial

Court.

The plaintiff filed the suit setting out various averments, the epitome, and the gist and kernel of them would run thus:

The plaintiff while he was a minor, one Ramasamy Padayachi executed an unregistered settlement deed dated 31.08.1954 relating to four cents of

land worth Rs. 50 in favour of the minor, citing the minor''s father as the guardian. Ever since that time, the said guardian was in possession and

enjoyment of the said four cents of land and on the plaintiff attaining majority, the said property was handed over to him and he has been in

possession and enjoyment of the same. While so, the defendant who is a neighbour, having no right over it attempted to trespass into it; whereupon

the suit for injunction was necessitated.

Per contra, inveighing and refuting, challenging and impugning the plaint averments, the defendant filed the written statement, which would tersely

and briefly run thus:

Originally an extent of 12 cents of land including the suit property belonged to one Rangasamy Padayachi, who had three sons namely (1)

Poovaragamoorthy, (2) Kuppusamy and (3) Ramasamy. The settlement deed referred to in the plaint is a forged and fabricated one, under which

the plaintiff cannot claim any right or title. The defendant''s father on two occasions purchased an extent of four cents and five cents, totally nine

cents from Poovaragamoorthy, leaving three cents on the eastern side out of the twelve cents. As such, the suit is a misconceived one and it is bad

for suppression of material of facts. Accordingly, he prayed for the dismissal of the suit.

The trial Court framed the relevant issues.

Up went the trial, during which the plaintiff/Viswalingam examined himself as P.W.1 along with P.W.2/Jayaraman and marked Exs. A1 to A10;

and the defendant/Balasubramaniam examined himself as D.W.1 along with D.W.2/Sundaramoorthy and Exs. B1 to B4 were marked.

Ultimately the trial Court decreed the suit as against which the defendant preferred appeal, whereupon the appellate Court reversed the finding

of the trial Court and dismissed the original suit.

Challenging and impugning the judgment and decree of the first appellate Court, this Second Appeal has been focussed on various grounds and

also suggesting the following substantial questions of law:

(1) Whether the first Appellate Court is justified in not applying section 90 of the Evidence Act for the Settlement deed dated 31.08.1954 (Exhibit

A1), is sustainable in law?

(2) Whether the conclusion of the first Appellate Court that the subsequently executed settlement deed Exhibit B1 sic (Ex. B3) dated 11.06.1955

is a valid document, is sustainable in law, without setting aside the earlier settlement deed dated 31.08.1954 (Exhibit A1) by the same settlor in

respect of the same property?

(3) Whether the first Appellate Court is justified in denying the relief in a suit for permanent injunction when the possession and enjoyment of suit

property has been established by the Appellant beyond doubt, is sustainable in law?

(4) Whether the first Appellate Court is justified in dismissing the suit without appreciating the oral evidence in its entirety but appreciating the

above oral and documentary evidence at fraction is sustainable in law?

(Extracted as such)

At the outset, I recollect and call up the recent decision of the Hon''ble Apex Court reported in Union of India (UOI) Vs. Ibrahim Uddin and

Another, ; an excerpt from it would run thus:

Section 100 CPC provides for a second appeal only on the substantial question of law. Generally, a second appeal does not lie on question of

facts or of law. In State Bank of India and Others Vs. S.N. Goyal, this Court explained the terms ""substantial question of law"" and observed as

under: (SCC p. 103, para 13)

13...... The word ""substantial"" prefixed to ''question of law'' does not refer to the stakes involved in the case, nor intended to refer only to questions

of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties. ''Substantial

questions of law'' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as

between the parties...... any question of law which affects the final decision in a case is a substantial question of law as between the parties. A

question of law which arises incidentally or collaterally, having no bearing on the final outcome, will not be a substantial question of law...... There

cannot, therefore, be a straitjacket definition as to when a substantial question of law arises in a case.

(Emphasis added)

Keeping the aforesaid dictum, in mind, I would like to analyse the records to find out as to whether any substantial question of law is involved in

this case. What I could discern and infer from the records on the factual issues, would run thus:

Indubitably and indisputably the 12 cents of land including the suit property originally belonged to one Rangasamy Padayachi, who had three sons

namely (1) Poovaragamoorthy, (2) Kuppusamy and (3) Ramasamy. The precise case of the plaintiff is that the said Rangasamy Padayachi, as per

Ex. A1 dated 31.08.1954, the unregistered settlement deed, settled an extent of four cents of land on the eastern extreme of the said 12 cents of

land in favour of the plaintiff, citing the plaintiff''s father as guardian.

At this juncture, it is just and proper to refer to a very important law point which is more often than not lost sight of by many. The trial Court in

fact was carried away by the misconception that an immovable property worth less than Rs. 100/-, could be transferred without any registered

deed. Such a proposition is basically and fundamentally wrong. If a sale deed is executed relating to a property worth less than Rs. 100/-, then

only no registration is required. But in respect of a settlement deed even if it relates to a property less than Rs. 100, it requires registration

compulsorily. This aspect has not been considered at all by the Courts below.

I would like to elaborate on this point for the guidance of the lower judiciary as under:

Section 54 of the Transfer of Property Act is extracted hereunder for ready reference:

Sale defined.-- Sale is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.

Sale how made.-- Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a

reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or

by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale.-- A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled

between the parties.

It does not, of itself, create any interest in or charge on such property.

(Emphasis applied)

As such, in the second paragraph cited supra, the portion emphasized would indicate and exemplify that in the case of sale of an immovable

property worth less than Rs. 100/-, registration is not compulsorily. The validity of settlement/donation is governed by Sections 122 and 123 of the

Transfer of Property Act, which are extracted hereunder for ready reference:

Gift defined.-- Gift is the transfer of certain existing moveable or immovable property made voluntarily and without consideration, by one

person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made.-- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void.

Transfer how effected

For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the

donor, and attested by at least two witnesses.

For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by

delivery.

Such delivery may be made in the same way as goods sold may be delivered.

Along with that, I would also like to extract the relevant portion of Section 17 of the Indian Registration Act:

Documents of which registration is compulsory

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed

on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, (20 of 1866) or the Indian Registration Act, 1871, (7

of 1871) or the Indian Registration Act, 1877, (3 of 1877) or this Act came or comes into force, namely:

(a) instruments of gift of immovable property

(b) other nontestamentary instruments which purport or operate, to create, declare, assign, limit or extinguish, whether in present or in future, any

right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.

.........

.........

.........

(Emphasis supplied)

A cumulative and conjoint reading of Sections 122 and 123 of the Transfer of Property Act as well as Section 17(a) and (b) of the Indian

Registration Act, would connote and indicate that a settlement deed concerning an immovable property absolutely requires registration, irrespective

of the value of it; even if an immovable property being the subject matter of settlement is less than Rs. 100/-, it requires registration. This aspect has

not been considered by the trial Court and the appellate Court also even though decided ultimately the appeal correctly, failed to advert to this

point. At the Bar also argument on the side of the plaintiff was advanced erroneously on that aspect. I would like to highlight and spotlight the

niceties involved in the aforesaid legal position and it should be taken note of by the lower judiciary for their future guidance.

Here Ex. A1 is an unregistered document. In such a case, it ought not to have been treated as a settlement deed at all, but the trial Court

treated it as a valid one and acted upon it and decreed the suit. However, the first appellate Court for various other valid reasons reversed the

erroneous finding of the trial Court.

This is a singularly singular case in which Rangasamy Padayachi executed the unregistered settlement deed Ex. A1 dated 31.08.1954, relating

to four cents of land. Thereafter during the year 1955, for the reasons best known to himself, he executed Ex. B3, the registered settlement deed

dated 11.06.1955 in respect of three cents of land out of that four cents of land in favour of the guardian of the minor referred to in Ex. A1. As

such, the subsequent registered deed Ex. B3 of the year 1955 in favour of the plaintiff''s father, would erode the claim of the plaintiff under Ex. A1,

which is au fond a void one. I would like to stress upon the fact that the plaintiff cannot be heard to contend that under Ex. A1, which is a void

document, he derived any title and it is obvious and axiomatic and no more elaboration in this regard is required. There is no knowing of the fact as

to how the trial Court throwing to winds adjudged Ex. A1 as a valid document and decided the lis in favour of the plaintiff. Even by

phantasmagorical thoughts Ex. A1 cannot be labelled or dignified with the title of a valid settlement deed in stricto sensu. The plaint averments

would proceed on the line as though under Ex. A1, the plaintiff''s father was in possession and enjoyment of the four cents of land and that the

minor on attaining majority, got possession from his father. When the fact remains that the plaintiff''s father himself during the year 1955 itself got as

per Ex. B3 only three cents of land out of the said four cents, the question of the plaintiff weaving a sand of rope based on Ex. A1, would be a well

neigh impossibility. Scarcely could be stated that the first appellate Court was not correct in observing that the plaint itself was not filed properly.

The bare suit for injunction suppressing Ex. B3, would expose the plaintiff''s case that it is unworthy of being processed successfully before the

Court. The popular legal adage is ""He who seeks equity should do equity and he who comes to equity must come with clean hands."" The legal

remedy of injunction is an equitable one and the plaintiff who is guilty of the maxim ""Supressio veri, suggestio falsi : Suppression of the truth is

[equivalent to] the suggestion of what is false"" is not entitled to any relief.

Alternis visibus the argument as put forth on the side of the plaintiff was that the plaintiff acquired prescriptive title over the property, because

patta has been standing in the name of the plaintiff ever since 1983, ignoring one important fact. Even before the emergence of that patta, two

registered documents Ex. B1 dated 10.06.1959 and Ex. B2 dated 18.07.1962 emerged in favour of the defendant''s father.

Patta will not confer title. The following decisions would exemplify with the legal position.

(i) Velayudham Pillai Vs. Sandhosa Nadar and Others,

(ii) Kuppuswami Nainar Vs. The District Revenue Officer and Others,

(iii) Srinivasan and six others Vs. Sri Madhyarjuneswaraswami and five others,

(iv) 2008(7) MLJ 1183 [Venkatachalam (died) and others vs. Rajammal and others]

(v) R. Pannerselvam Vs. A. Subramanian and another,

The above precedents would connote and denote that mere patta would not confer title.

As such as against the registered documents mere obtention of patta would not in any way enure to the benefit of the plaintiff and the first

appellate Court correctly negatived the claim of the plaintiff. The first appellate Court being the last court of facts correctly analysed the evidence

both oral and documentary and arrived at the conclusion.

The learned counsel for the appellant also would put forth an argument to the effect that when Rangasamy Padayachi had three sons, the

defendant''s father could have purchased nine cents from Poovaragamoorthy, who happened to be one among the three sons of Rangasamy

Padayachi. For taking a plea, there should be locus standi on the part of the party concerned. At this juncture, I would like to recollect the concept

locus standi as found set out in the Black''s Law Dictionary:

Locus Standi : The right to bring an action or to be heard in a given forum.

Over and above that, the plaintiff is not a legal heir of Ramasamy to question the same and as such, the aforesaid argument cannot be

countenanced and upheld by this Court. If at all any legal heir of Ramasamy or Kuppusamy challenges it, then the matter would be different. The

trial Court without au fait with law decided the lis, however the appellate court au courant with facts and applying the correct legal position

reversed the findings of the trial Court.

The suit is turned out to be an ill wind that blew no one any good.

In the result, I could see no merit in this appeal. Accordingly, this Second Appeal same stands dismissed. There shall be no order as to costs.

Consequently, connected miscellaneous petition is closed.