Adhikesavalu Reddiar vs R. Selvarathinam

R.S. Ramanathan, J.—The Defendants are the Appellants. The First Respondent-S. Radhabai filed the above Suits for declaration that the

Sale Deeds, dated 8.12.1995 & 24.11.1995 were obtained from her by the Defendants/Appellants by practicing fraud and misrepresentation and

therefore, prayed to set aside the Sale Deeds and for injunction restraining the Appellants from interfering with her possession and enjoyment of the

suit property. During the pendency of the Suit, the Plaintiff-S. Radhabai died and the 2nd Plaintiff was impleaded as the legal heir, on the basis of

the alleged Will executed by S. Radhabai in favour of the 2nd Plaintiff.

The case of the Original Plaintiff, S. Radhabai, in all the three Suits, was that she was the owner of the property and the Appellant in S.A. No.

1468 of 2007, who was none other than the brother''s son of her husband, approached her for funds and as she was not in possession of funds, he

requested her to execute a mortgage and raise funds and that mortgage would be discharged by the Appellant in S.A. No. 1468 of 2007 and

believing the representation of Adhikesavalu Reddiar and with an intention of helping him, she executed a Mortgage Deed and latter, she realised

that under the pretext of mortgage, the Appellants obtained the Sale Deeds in their names in respect of the schedule properties and therefore, the

Sale Deeds were obtained by fraud and misrepresentation and no consideration was passed under those sale transactions and filed the Suits for

setting aside the Sale Deeds and for injunction.

The Appellants, in all the Suits, contended that the Sale Deeds were executed by the Plaintiff, while she was in a sound disposing state of mind

and she was aware of the nature of document executed by her and the consideration was paid by the Appellants for the sale and they are in

possession of the property and therefore, the registered Sale Deeds cannot be set aside.

The Trial Court accepted the case of the Appellants and dismissed the Suits and the Lower Appellate Court reversed the findings of the Trial

Court and allowed the Appeals. Hence, these Second Appeals were filed by the Appellants.

The following substantial questions of law were framed at the time of admission:

Has not the Lower Appellate Court committed error in law by admitting additional evidence since the Respondent failed to make out any case

under any one of the ingredients prescribed under Order 41, Rule 27 of CPC ?

In a Suit to set aside the Sale Deed on the ground of fraud and misrepresentation, has not the Lower Appellate Court committed error in law

by shifting the burden on the Defendant to prove that the property was purchased for valid consideration, while the Plaintiff has failed to discharge

the initial burden of fraud and misrepresentation?

Mr. M.S. Subramanian, learned Counsel appearing for the Appellants submitted that the Lower Appellate Court without properly appreciating

the oral and documentary evidence and the fact that the Sale Deeds were executed on different dates, erred in holding that the Sale Deeds were

obtained by fraud and misrepresentation. He further submitted that a perusal of the recitals, in those Sale Deeds, would also prove that the Sale

Deeds were executed for consideration and the Plaintiff was aware of the contents of the Sale Deeds and even in the month of November 1995,

the Plaintiff sold some of the properties in favour of one Alli Rani and that would also prove that the Plaintiff was aware of the nature of documents

executed by her and without properly appreciating all these aspects, the Lower Appellate Court erroneously received the additional evidence and

came to the erroneous conclusion that the Plaintiff was suffering from ''senile dementia'' and was not in a position to remember and therefore, her

evidence should not be taken seriously and PW 2 has spoken about the condition of the Plaintiff and PW 2 also proved that the Plaintiff continued

to be in possession of the property and also marked Kist Receipts to prove their possession and therefore, the Sale Deeds were not executed by

the Plaintiff with the knowledge that she executed the Sale Deeds in favour of the Plaintiffs. He further submitted that the Lower Appellate Court

erroneously placed the burden of proof on the Appellants and erroneously held that the Appellants failed to prove that the Sale Deed was not

obtained by fraud or misrepresentation, when the Plaintiff failed to prove the initial burden that the Sale Deed was obtained by practicing fraud on

her. He, therefore, submitted that the Lower Appellate Court ought not to have reversed the findings of the Trial Court. He further submitted that

the Lower Appellate Court ought not to have accepted the Doctor''s Certificate Exs. A113 & A114 without examining the doctors and therefore,

the reception of such evidence is also against Order 41, Rule 27, C.P.C.

On the other hand, the learned Counsel appearing for the Respondents submitted that the Lower Appellate Court has rightly reversed the

findings of the Trial Court and rightly held that the Appellants failed to prove that the documents were executed by the Plaintiffs knowing fully well

about the contents of the document and after adverting to the evidence of PW 2 to PW 5, the Lower Appellate Court rightly reversed the findings

of the Trial Court and the Lower Appellate Court is the final authority on facts and the Lower Appellate Court, after appreciating both oral and

documentary evidence, by cogent reasons set aside the findings of Trial Court and therefore, the judgment and decree of the Lower Appellate

Court cannot be interfered with in these Second Appeals.

He further submitted that the Lower Appellate Court has not wrongly placed the burden and when the Plaintiff averred that the document was

obtained from her by practicing fraud and misrepresentation, the burden is on the Defendants/Appellants to prove that the document was not

obtained by practicing fraud and misrepresentation and the Appellants failed to prove that fact and hence, the Lower Appellate Court has rightly

set aside the findings of the Trial Court and decreed the Suit.

To appreciate the facts in this case and to decide the substantial questions of law, according to me, in these Appeals, certain admitted facts are

to be stated.

The original Plaintiff, C. Radhabai was the wife of Subramania Reddiyar and Ramadass Reddiyar was his brother. The Appellant-

Adhikesavalu Reddiyar is the son of Ramadoss Reddiyar and the Appellants K.P. Neelaraman, K.P. Bharathi Babu and K.P. Janarthanan are the

sons of Perumal Reddiyar and they are the brothers of the 2nd Plaintiff, who was impleaded as the legal heirs of the original Plaintiff-Radhabai. The

Appellant Lakshminarayanan and Rajalakhsmi are the children of Adhikesavalu Reddiyar.

It was the specific case of the Original Plaintiff-Radhabai that Adhikesavalu Reddiyar by practicing fraud on her obtained three Sale Deeds

under documents No. 1983/95, 1894/95 and 1836/95 on the file of the Sub-Registrar Office, Cheyyar under the pretext of executing the

Mortgage Deed to help Adhikesavalu Reddiyar to raise funds. The Sale Deeds were marked as Exs. A10, A111 & A112. Ex. A10 is the

document executed in the name of Adhikesavalu Reddiyar and the deed is dated 08.12.1995. Ex. A111 is also dated 8.12.1995 and it was

executed in favour of the Plaintiffs/Appellants K.P. Neelaraman and others. Ex. A112 is the Deed, dated 24.11.1995 and it was executed in

favour of the children of Adhikesavalu Reddiyar.

As stated supra, it is the specific case of the Original Plaintiff Radhabai that Adhikesavalu Reddiyar by practicing fraud obtained three Sale

Deeds in favour of the Appellants under the pretext of the mortgage and she came to know about the Sale Deeds only latter. Admittedly, two Sale

Deeds are dated 8.12.1995 and one Sale Deed is dated 24.11.1995. Therefore, the case of the original Plaintiff that she went to the Sub-Registrar

office to execute a Mortgage Deed and under the pretext of mortgage, three Sale Deeds were obtained on the same date cannot be accepted as

one Sale Deed in favour of the Appellant, namely K.P. Lakshminarayanan and others is dated 24.11.1995.

Further, the Sale Deed, dated 8.12.1995 specifically mentions the reason for selling those properties in favour of the purchasers and in those

Sale Deeds, it is specifically stated that the executant Radhabai had already executed a Will in the year 1986, namely Ex. A15 in favour of the

Respondent-R. Selvarathinam and after the execution of the Will, the Respondent-R. Selvarathinam did not take care of her and therefore, to

maintain herself, she has decided to sell the property and sold the property to the Appellants. Further, one of the attesting witnesses, Arumugam

was examined as DW 4 and those were not properly appreciated by the Lower Appellate Court.

A reading of the judgment and decree of the Lower Appellate Court would also reveal that no acceptable proof was adduced to prove

Radhabai was suffering from ''Senili dementia'' and Exs. A113 & A114, the Medical Certificates received as additional evidence should not have

been relied upon in the absence of examining the author of such certificates. The Lower Appellate also erred in holding that there was no pleading

regarding the consideration paid by the Appellants. According to me, the findings of the Lower Appellate Court is perverse and the Lower

Appellate Court without properly appreciating the pleadings and prayer in full held that there was no pleading regarding the passing of

consideration and in the Written Statement filed by the Appellants, they have specifically stated that the Sale Deeds were executed for valuable

consideration. Though, they have not mentioned the exact amount of sale consideration, that was spoken to by the appellants in evidence and also

corroborated by DW 4, one of the attesting witnesses. Admittedly, Radhabai was examined as PW 1 and though she has stated in chief that

Adhikeksavalu Reddiyar approached her for funds and sought her permission for creating mortgage to raise funds and she executed the document,

she admitted in evidence at the time of cross-examination that she did not direct anybody to file the case against Adhikesavalu Reddiyar and she

did not approach the Advocate for filing the case and she was giving evidence as per the dictates of one Sengalvarayan.

Further, PW 1 was examined in O.S. Nos. 130 to 131 of 1998 and she has stated in chief-examination that the Appellants approached her for

funds and she executed a mortgage, but the pleading in O.S. Nos. 130 to 131 of 1998 are different and according to the Plaint in O.S. Nos. 130

to 131 of 1998, Adhikesavalu Reddiyar approached her and asked to execute a mortgage to raise funds and believing the words of Adhikesavalu

Reddiyar, she executed the mortgage and under the pretext of mortgage, Adhikesavalu Reddiyar obtained the Sale Deeds. Therefore, having

regard to the inconsistent statement made in the Plaint and having regard to the admission in the cross-examination by the Plaintiff that she has not

directed her Advocate to file the case against Adhikesavalu Reddiyar and having regard to the fact that she admitted that she is giving evidence, as

per the dictum of Sengalvarayan, the Trial Court rightly held that the Sale Deeds were executed by Radhabai knowing fully well about the nature of

the document and the Appellants/Defendants have proved the execution of the Sale Deeds. Further, one Sale Deed is dated 24.10.1995 and the

other two Sale Deeds are dated 8.12.1995 and it is not the case of the Plaintiff that she went to Registrar''s Office on two days to execute the

Mortgage Deeds. Her specific case was that she went to Registrar''s Office only once and executed one document and it was not her case that she

executed three documents as requested by the Appellant in S.A. No. 1468 of 2007.

Further, as rightly contended by the learned Counsel appearing for the appellants that the Lower Appellate Court erroneously placed the

burden of proof on the Appellants. It was the specific case of the Plaintiff that by practicing fraud, the Appellant obtained Sale Deeds from her and

she was under the impression that she was executing the Mortgage Deed. Therefore, the burden lies on the person to prove that some fraud has

been practiced upon her and in this case, no attempt was made by the Plaintiff to discharge the initial burden.

Further, the Appellant also discharged the burden that the Sale Deeds were executed by the Plaintiff, knowing fully well about the nature of

documents. Admittedly, Radhabai, the Original Plaintiff executed a Sale Deed in favour of one Alli Rani on 2.11.1995 and that Sale Deed was

marked as Ex. B2. Further, the evidence of RW 5 would also prove that Radhabai would not have been cheated by the Appellants as alleged by

her. RW 5, Selvabai admitted in chief-examination that Radhabai did not like Neelaraman Rediar and Adhikesavalu Reddiar and she further

admitted that Radhabai would not do anything without consulting Selvarathinammal, the Respondent. Therefore, having regard to the admission of

PW 5 that Radhabai did not like Adhikesavalu Reddiar and she would not do anything without consulting Selvarathinammal, it cannot be believed

that Radhabai would have executed the Sale Deeds without understanding the contents and she was under the impression, she only executed the

Mortgage Deed. Further, the Lower Appellate Court erred in holding that the document would prove the possession of the properties with

Radhabai, even after the execution of the Sale Deed. Admittedly, the Sale Deeds are of the year 1995 and the Suit was of the year 1998 and

except Exs. A17, A18 & A19, which are all receipts for payment of electricity bills, all other receipts are either earlier to the Sale Deeds in favour

of the Appellants or after the filing of the suit. Therefore, those Exhibits cannot be taken into consideration to prove the possession. Admittedly till

November 1995, Radhabai was in possession of the property and even according to the Appellants, she was allowed to remain in possession of

the property for six months and thereafter vacated and handed over the possession. The Lower Appellate Court also erred in receiving the

additional document Exs. A113 & A114, which are only certificates, in the absence of examination of doctors. Under Order 41, Rule 27, a

document can be received in evidence, if the same could not be produced during trial for valid reasons and those documents would help the Court

to decide the issue. Admittedly, Exs. A113 & 114 are the certificates issued by the Medical practitioners about the mental condition of Radhabai

and the certificates cannot be relied upon in the absence of examination of those Doctors. Further, those exhibits also would not help the Court to

decide whether the original Plaintiff Radhabai was suffering from any mental depression at the time of execution of the Sale Deeds. The core issue

in those Suits is whether Radhabai executed the Sale Deeds knowing fully well that they are Sale Deeds and to decide that issue, the Medical

Certificates will not help the Court as the certificates were issued in the year 1998 and the certificates also cannot prove the mental condition of

Radhabai in the year 1995. Therefore, in the absence of any acceptable reasons and without examining the Doctors, the Lower Appellate ought

not to have received the two Doctor Certificates as additional evidence and marked as Exs. A113 & A114 and therefore, the Lower Appellate

Court committed a serious error in allowing the Application and the 1st substantial question of law is answered in favour of the Appellants.

Further, the Lower Appellate Court without properly appreciating the fact that the Appellants have proved their case that the Sale Deed was

executed by Radhabai by examining the attesting witnesses and the evidence of PW 1 to PW 5 would also falsify the case of the Respondents and

Radhabai also admitted that she did not direct her Advocate to file the Suit against Adhikesavalu Reddiyar and the Sale Deeds were executed on

two different dates and Radhabai also executed another Sale Deed in the month of November 1995 in favour of Alli Rani, erred in reversing the

judgment and the Appellants proved that Radhabai was conscious and she executed the Sale Deeds knowing well about the contents. Hence, the

second substantial question of law is also answered in favour of the Appellants.

Hence, the Second Appeals are allowed and the judgment and decree of the Lower Appellate Court is set aside and the judgment and decree

of the Trial Court is confirmed. No costs.

C.R.P. (NPD) No. 3484 of 2008:

This Civil Revision Petition is filed against the order passed in I.A. No. 2392 of 2005 in A.S. No. 79 of 2005 in receiving the additional evidence.

According to me, there is no need to challenge the order passed in I.A. No. 2292 of 2005 in A.S. No. 79 of 2005 filed under Order 41, Rule 27,

C.P.C. to receive the additional evidence as the same has been challenged along with the Second Appeal and I have already held while allowing

the 2nd Appeals that the Lower Appellate Court has committed a serious error in allowing I.A. No. 2293 of 2005 to receive the additional

evidence. As stated supra, the additional evidence can be received only when the same could not be filed during trial and those documents are

relevant for deciding the case. According to me, the Medical Certificates issued by the Doctor will not help the Court to decide the issue involved

in those Appeals and the Medical Certificates cannot also be relied upon without examining the Doctor. Hence, the Lower Appellate Court

committed a serious error in allowing the Application to receive the additional evidence. Hence, the order passed I.A. No. 2293 of 2005 in A.S.

No. 79 of 2005 is set aside and the Civil Revision is allowed. No costs. Consequently, connected Miscellaneous Petitions are closed.