V.N. Palanisamy and Others vs Nallasamy

P.R. Shivakumar, J—This Second Appeal arises out of a decree of Additional Sub Court, Karur, dated 30.11.2011 made in Appeal Suit No. 42 of 2011, confirming the decree of the trial Court (Additional District Munsif Court, Karur) dated 10.03.2011 dismissing Original Suit No. 632 of 2007 filed by the appellants herein against the respondent herein.

This appeal in respect of the second appellant had been dismissed on 24.04.2015 for non-prosecution. M.P(MD) No. 1 of 2015 had been filed for setting aside the said order and to restore the appeal in respect of the second appellant also. By order dated 02.06.2015, the dismissal order dated 24.04.2015 passed against the second appellant has been set aside and the appeal filed by him also stands restored.

The above said suit came to be filed by the appellants for the following reliefs:-

(i) For a declaration that the sale deed, dated 29.08.1994 registered as Document No. 686 of 1994 on the file of the Sub-Registrar of Velayuthampalayam, Karur executed by the appellants 1 and 2 and by the third appellant, who was then a minor represented by the first appellant, conveying the suit properties to the respondent is null and void.

(ii) For a permanent injunction against the respondent/defendant restraining him from in any manner alienating and encumbering the suit properties and

(iii) for costs.

The above said prayers came to be made based on the plaint averment that the suit properties were the ancestral properties and were allotted in a partition effected under a partition deed dated 02.11.1975 to the share of the first appellant/first plaintiff, who is the father of the appellants 2 and 3/plaintiffs 2 and 3; that subsequent to the said partition, all the three appellants/plaintiffs were in joint possession and enjoyment of the suit properties; that during the year 2007, the respondent/defendant started giving troubles to the appellants/plaintiffs by making an attempt to alienate the suit properties and trying to effect the mutation in revenue records; that the appellants/plaintiffs, on verification, came to know that the above said sale deed was obtained by playing a fraud and that hence, they were forced to file a suit for a declaration that the sale deed is null and void and for a permanent injunction of the nature indicated above. It was also contended by the appellants in their plaint that the sale deed was obtained only as a security for repayment of a loan.

The suit was resisted by the respondent/defendant contending that a valid sale deed executed by the appellants 1 and 2 and by the third appellant, who was a minor represented by the first appellant, could not be claimed to be one obtained by playing a fraud on anyone of the appellants and that the other plaint averments regarding the continuous possession of the appellants/plaintiffs is also false. The suit was also resisted based on the following contentions:-

(i) The suit was hopelessly barred by limitation;

(ii) The relief of declaration was not properly valued; and

(iii) Proper relief was not sought for and the suit was filed as a speculative one.

After framing of necessary issues, a trial was conducted in the trial Court and the learned trial Judge, after marshalling the evidence, rejected all the contentions of the appellants/plaintiffs and non-suited the plaintiffs for the reliefs sought for in the plaint. Accordingly, by a Judgment and Decree dated 10.03.2011, the suit was dismissed with costs by the trial Court and an appeal preferred by the appellants herein/plaintiffs in Appeal Suit No. 42 of 2011 was also dismissed by the lower Appellate Court by a Judgment and Decree dated 30.11.2011 concurring with all the findings of the trial Court. It is as against the said decree of the lower Appellate Court confirming the decree of the trial Court dismissing the suit filed by the appellants herein/plaintiffs, the present Second Appeal has been filed.

The Second Appeal came to be admitted on 28.09.2012 identifying the following to be the substantial questions of law involved in the Second Appeal:-

"(i) Whether the Courts below failed to note that the reading of Exs. A. 1 and A. 16 coupled with the fact of long delay in getting back the original return of B. 3 proves the case of the plaintiffs that the deed was not a real sale?

(ii) Whether the appreciation of the evidence both oral and documentary of Courts below are perverted in view of Exs. B. 3 and A. 16?"

The arguments advanced by Mr. K. Manimaran, learned counsel for the appellants 1 to 3 and by Mr. R. Pon Karthikeyan, learned counsel for the respondent are heard. The Judgments and Decrees of the Courts below, memorandum of grounds of Second Appeal and other materials available on record received from the Court below also perused and taken into consideration.

The contention of the learned counsel for the appellants is that though the execution of sale deed dated 29.08.1994 by the first appellant and second appellant (first appellant acting for himself and as a guardian of the third appellant) has not been specifically denied in the plaint, according to the appellants/plaintiffs, the said document was obtained by playing a fraud and the same may even be a document fabricated or obtained by a misrepresentation. Such a nebulous plea came to be taken by the appellants/plaintiffs in their plaint. They did not want to admit the execution of the sale deed, but at the same time, they avoid denying the execution of the sale deed marked as Ex. B. 3. There is no specific denial of execution of Ex. B. 3 and in fact there is an admission made by the plaintiffs'' side witnesses during the course of trial that Ex. B. 3 was the document executed by the first appellant for himself and on behalf of the third appellant and also by the second appellant in favour of the respondent/defendant. Having admitted the execution of the appellants, who tried to get rid of such a document with a plea of misrepresentation or fraud, ought to have come forward with the suit within three years from the date on which the alleged fraud came to the knowledge of the appellants. Besides filing such a suit within three years from the date of knowledge of alleged fraud, the appellants/plaintiffs should also substantiate their contention that in fact a fraud was played upon them. Of course, there is a plea in the plaint that they came to know that a fraud was played on them when they verified the records on 23.08.2007 and that within three years thereafter, they have filed the suit. But, unfortunately, the appellants/plaintiffs have failed to furnish the details of the manner, in which the fraud was allegedly committed.

Ex. B. 3 is a registered document. The case of the appellants/plaintiffs as per their pleadings is that the defendant obtained the signatures from the appellants 1 and 2/plaintiffs 1 and 2 on the premise that they were getting a document for arranging loan for them. Such a contention being far from believable has not been substantiated by reliable evidence. It is not the case of the appellants/plaintiffs that either on the date of execution or subsequent to the date of execution of Ex. B. 3, they availed any loan from the respondent/defendant or the respondent/defendant arranged any loan for them from third parties. In any event, within a reasonable time they ought to have approached the respondent/defendant as to what happened to the document they executed in favour of the respondent/defendant on 29.08.1994.

The learned counsel for the appellants relying on Ex. A. 16 an agreement for re-conveyance, contends that the very fact that the respondent/defendant chose to execute such an agreement for re-conveyance would show that the sale transaction under Ex. B. 3 was not genuine and that it would have been only a document intending to be a security for repayment of loan as contended by the appellants/plaintiffs. When a person conveys the property under a proper sale deed and subsequently gets an agreement for repurchase, his right shall be confined to the enforcement of the rights under the agreement for repurchase and he cannot contend and in fact he shall be estopped from contending that the original conveyance deed itself is invalid. According to the appellants/plaintiffs, Ex. A. 16 came to be executed on 21.12.2006. As rightly contended by the learned counsel for the respondent/defendant, the said document will go against the appellants own contentions regarding the knowledge of fraud or misrepresentation. Ex. A. 16 indicates that the appellants/plaintiffs were very much aware of the nature of the document they had executed on 29.08.1994 which has been produced as Ex. B. 3 at the time of execution itself. Therefore, the appellants 1 and 2 ought to have filed the suit for cancellation of Ex. B. 3-sale deed within three years from the date of execution of Ex. B. 3. The suit came to be filed only in the year 2007. As per Article 56 of the Limitation Act, 1963 which says that the limitation starts from the date when the issue or registration becomes known to the plaintiff. As pointed out supra, the registration of the document was known to the appellants 1 and 2/plaintiffs 1 and 2 on 29.08.1994 itself. As they have not chosen to file the suit within three years thereafter, the suit insofar as the said appellants are concerned is hopelessly barred by limitation.

Admittedly, the third appellant was a minor on the date of execution of Ex. B. 3-sale deed. Being the natural guardian of the third appellant/third plaintiff, the first appellant/first plaintiff executed Ex. B. 3 on behalf of the third appellant/third plaintiff also. For setting aside such a transfer made by the guardian, the limitation as per Article 60 is three years from the date on which the minor attains majority. The third appellant/third plaintiff was aged about 30 years in the year 2007, when the suit was filed. Hence, he would have attained majority somewhere in 1995. Assuming that he attained majority at the fake end of 1995, he should have filed the suit for setting aside the transfer within three years thereafter, namely before the end of the year 1998. But the suit came to be filed after a lapse of nine years from the date, on which the limitation for filing such a suit expired. Therefore, the prayer by the third plaintiff for declaring the sale deed null and void is also hopelessly barred by limitation.

Under Ex. B. 3, the sale was effected for a consideration of Rs. 1,40,000/-. In a suit for cancellation of the document or setting aside the instrument, the value of the instrument should have been adopted. In the case on hand, the prayer has been camouflaged by seeking a declaration that Ex. B. 3-sale deed is null and void. The real import of the prayer should be taken into account for ascertaining the value of the relief sought for. Though a declaration has been sought for, the actual relief is for setting aside the document produced as Ex. B. 3. Even otherwise, the declaration ought to have been valued in accordance with value of the property stated in the document namely, Ex. B. 3. The plaintiffs have chosen to adopt a notional value of Rs. 1,000/- for the relief of declaration and Rs. 1,000/- for the relief of injunction. The valuation made by the plaintiffs was also not correct and the same would also show the speculation with which they have chosen to file the suit, more or less as a gambling. It is pertinent to note that the appellants/plaintiffs were clever enough not to seek any declaration of their title or an order of injunction not to disturb their possession and enjoyment, if at all they are in possession of the suit properties. On the other hand, they have chosen to seek a permanent injunction against the respondent/defendant not to alienate or encumber the suit properties making the Court or the opposite party to assume that the appellants/plaintiffs are in possession even regarding the alleged plea of possession. Both the Courts have found concurrently against the appellants/plaintiffs. The prayer of permanent injunction not to alienate or encumber having been made in a clever manner will also make it clear that the suit is not only speculative, but also that the appellants/plaintiffs have avoided valuing the relief in a proper manner and paying proper Court fee. All these aspects were considered by the Courts below in proper perspective and both the Courts below rendered a concurrent and correct finding, which cannot be found fault with and in fact such findings cannot be termed perverse to enable this Court to interfere with them.

Ex. A. 1 is none other than a certified copy of Ex. B. 3. Ex. A. 16 is the alleged agreement for re-conveyance. If at all the appellants/plaintiffs were having any right acquired under Ex. B. 3, they ought to have approached the Court with a proper prayer for proper relief, namely, for specific enforcement of their rights under the said document. It is also pertinent to note that the respondent has denied and disputed the execution of Ex. A. 16. As it is not a case wherein specific enforcement of the rights and obligations under Ex. A. 16 has been sought for, and it has been produced only for a collateral purpose of showing the nature of transaction that took place under Ex. B. 3, the question of enforcement of the right if any of the appellants under Ex. A. 16 does not arise for consideration in this appeal. The mere production of a certified copy of Ex. B. 3 as Ex. A. 1 and an alleged re-conveyance under Ex. A. 6 shall not be enough to prove the case of the appellants/plaintiffs that Ex. B. 3 was obtained by fraud or misrepresentation.

Even assuming that production of Exs. A. 1 and A. 16 will help the appellants in their effort to show that there was misrepresentation or fraud, the appellants shall not be entitled to the relief because the suit is hopelessly barred by limitation and the suit has not been properly valued besides the Court fee paid being incorrect.

On a proper appreciation/re-appreciation of evidence, the trial Court and lower Appellate Court held that the suit was barred by limitation in respect of all the appellants/plaintiffs; that the suit was not properly valued and the Court fee paid was not proper and that the appellants/plaintiffs were not entitled to any of the reliefs. The Courts below also arrived at a correct conclusion that the suit should be dismissed with costs. In fact, the lower Appellate Court could have even awarded exemplary costs.

For all the reasons stated above, this Court answers both the substantial questions of law against the appellants/plaintiffs and in favour of the respondent/defendant.

In view of the answers given to the substantial questions of law, this Court finds no merit in the Second Appeal. Accordingly, the Second Appeal fails and the same is dismissed with costs. Consequently, connected Miscellaneous Petition is also dismissed.