Nallusamy vs Ganesan and Others

M. Duraiswamy, J.—Second Appeal (MD). No. 428 of 2013 arises against the judgment and decree passed in A.S. No. 61 of 2011 on the file of Principal District Court, Tiruchirappalli confirming the judgment and decree passed in O.S. No. 630 of 1994 on the file of II Additional Sub Court, Tiruchirappalli. The first defendant is the appellant. The first respondent was the plaintiff and the respondents 2 to 6 were the defendants 2 to 6. The plaintiff filed the suit O.S. No. 630 of 1994 for declaration, recovery of possession and for past and future mesne profits.

Second Appeal (MD). No. 429 of 2013 arises against the judgment and decree passed in A.S. No. 62 of 2011 on the file of Principal District Court, Tiruchirappalli, confirming the judgment and decree passed in O.S. No. 95 of 2003 on the file of II Additional Sub Court, Tiruchirappalli. The second plaintiff is the appellant and the respondent was the defendant in the suit. The plaintiff filed the suit O.S. No. 95 of 2003 for cancellation of sale deed dated 27.08.1986 stated to be executed by the first plaintiff and for permanent injunction.

Since the Courts below disposed of both the suits and the appeals by common judgment, the above second appeals are also disposed of by this common judgment.

The brief case of the appellant is as follows:--

"4.1 According to the appellant the suit property originally belonged to Venkatachalam Pillai. He was residing in one portion and remaining portion was let out to tenants. The said Venkatachalam Pillai died in the year 1960. On 02.06.1958 he executed a settlement deed in favour of Bagyathammal. She was occupying a portion in the ground floor and a room in the upstairs. The remaining portion were leased out to the tenants. The tenants were paying the rent to the said Bagyathammal.

4.2 In the year 1986, Bagyathammal suffered a paralytic stroke. Her sister Nallammal ''s grandson Nallusamy giving treatment to Bagyathammal and since Bagyathammal had no issue, she brought up Nallusamy from his childhood and he is living with Bagyathammal from his childhood looking after her interest and welfare.

4.3 When Bagyathammal was affected by paralytic stroke, the respondent came to Tiruchirappalli and took her to Madurai under the guise of giving treatment at Government Rajaji Hospital. But, he did not admit her in the hospital. He gave treatment to her in his house by engaging a compounder. He obtained her thumb impressions in several stamp papers. It was subsequently learnt that power of attorney and Will executed in favour of the respondent. When the respondent was taking her back to Tiruchirappalli in August 1986, he took her to an office and asked her to sign in several stamp papers on the guise that those stamp papers are for cancelling the power executed in favour of Nellusamy. By using those stamp papers, the respondent obtained sale deed dated 27.08.1986 in his favour. The sale deed is not supported by consideration. The property is worth about Rs. 1,00,000/-. While so, it was sold for a meagre sum of Rs. 20,000/-. The document is vitiated by undue influence. There is no necessity for Bagyathammal to sell the property. The appellant alone is collecting the rent from the tenants.

4.4 In the last week of August, 1986 Bagyathammal was left in the custody of Nallusamy. In August 1988, the respondent informed that a sale deed was executed in his favour and only thereafter, Bagyathammal came to know of the fraud played on her and she has filed the suit for cancellation of sale deed in favour of the first respondent and for permanent injunction. During the pendency of the suit, the said Bagyathammal had died on 05.03.1989. The appellant was impleaded as the legal representative of the deceased Bagyathammal."

The brief case of the respondent is as follows:--

"According to the respondent, the suit property originally belonged to one Venkatachalam Pillai. Bagyathammal is his wife. On 02.06.1958 Venkatachalam Pillai executed a settlement deed in respect of the suit property in favour of Bagyathammal. Since Venkatachalam Pillai and Bagyathammal had no issues, they brought up the respondent as their own son. Venkatachalam Pillai had died in a train accident in the year 1960. Out of love and affection towards the respondent, Bagyathammal executed a Will and power deed in his favour on 06.03.1986. The respondent spent upto Rs. 20,000/- towards her medical treatment. Hence, Bagyathammal executed a sale deed in favour of the respondent in respect of the suit property. The house tax was also changed in the name of the respondent. The tenants were paying the rent to the plaintiff. Bagyathammal fell ill on 10.05.1988 and she did not regain her conscious even after treatment and at the time of discharge also she was unconscious. She was not capable of understanding anything. The respondent filed a suit in O.S. No. 1494 of 1989 against the appellant and other tenants and in that suit, Nallusamy claimed fictitious title to the property on the strength of forged documents. In these circumstances, the respondent prayed for a decree in O.S. No. 95 of 2003 and for dismissal of the suit in O.S. No. 630 of 1994."

Before the Trial Court, on the side of the respondent two witness were examined and 74 documents were marked as Ex. A1 to Ex. A74. On the said of the appellant, 5 witnesses were examined and 11 documents Ex. B1 to Ex. B11 were marked. The Trial Court after taking into consideration the oral and documentary evidences of both sides, dismissed the suit O.S. No. 95 of 2003 and decreed the suit O.S. No. 630 of 1994.

Aggrieved over the judgments and decrees of the Trial Court, the appellant preferred appeal in A.S. Nos. 61 and 62 of 2011 and the lower appellate Court also confirmed the judgments and decrees of the Trial Court and dismissed both the appeals. Aggrieved over the judgments and decrees of the Courts below, the appellant has filed the above second appeals.

Heard Mr. T.S.R. Venkataramana, learned counsel for the appellant and Mr. K.S. Sankar Murali learned counsel for the first respondent.

The appellant in S.A.(MD). No. 428 of 2013 has raised the following substantial questions of law:

"a) When the Supreme Court has in AIR 1991 Supreme Court 1094 has settled the law that after the Rent Control Act Civil Court has no jurisdiction to pass a decree for eviction, is not the learned District Judge correct in following 1991 LW 97 DB and earlier ruling to decree the suit?

b) Can a civil Court decree for eviction is sustainable after the dicta of the Supreme Court?

c) Whether the learned District Judge is right in relying an exhibit A8 and discarding B11 to decree the suit and is not such a finding is perverse and is liable to be set aside?

d) Whether the Ex. A8 alleged Sale deed can be held valid in the absence of consideration which is a essential ingredient for valid and binding contract?"

The appellant in S.A.(MD). No. 429 of 2013 has raised the following substantial questions of law:--

"a) Whether the Courts below were right in not acting on the evidence of DW2 and not accepting the Will of Bagyathammal marked Ex. B11?

b) Whether the Courts below were right in ordering eviction of the Appellant through a Civil Decree when the admitted case of the 1st respondent is that he is a tenant?

c) Is not the judgment and decree of the Courts below are perverse in so far as it accept Ex. A8 a fraudulent Sale deed overlooking the material fraudulent circumstances to that effect?"

The learned counsel for the appellant submitted that since the appellant had not specifically disputed the title of the respondent, the Courts below should not have decreed the suit for eviction and the plaintiff has to file a petition under Section 10 of the Tamilnadu Buildings (Lease and Rent Control) Act, 1960, so as to get a finding to the effect as to whether such a denial or claim is bona fide and if the Rent Controller gives a finding to that effect, the next course is to file a civil suit for eviction and it is only the Civil Court is competent to pass a decree for eviction on any of the grounds mentioned in the Section. In support of his contention, the learned counsel has relied upon the following judgments:--

"i) Saral Saroja Vs. Simson--> , wherein this Court has held as follows:--

"If a tenant denies the alleged title of the landlord or claims right of permanent tenancy, the only course open to the landlord is to file a petition under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, so as to get a finding to the effect as to whether such a denial or claim is bona fide. If the Rent Controller gives a finding to that effect, the next course open to the landlord is to file a suit for eviction in a civil Court and then only the civil Court is competent to pass a decree for eviction on any of the ground mentioned in this Section."

ii) M/s. East India Corporation Ltd. Vs. Shree Meenakshi Mills Ltd., wherein, the Hon''ble Supreme Court held that as per the second proviso to Section 10 of Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, tenant should deny title of landlord or set up claim of permanent tenancy and controller should find denial or claim to be bona fide.

iii) P. Rukmani Vs. R. Narayani and Others, , wherein this Court held that the decisions clearly show that although the jurisdiction of the civil Court is not expressly barred, the provisions of the statute explicitly show that, subject to the extraordinary powers of the High Court and the Supreme Court, such jurisdiction is impliedly barred, except to the limited extent specially provided by the statute."

Countering the submissions made by the learned counsel for the appellant, Mr. K.S. Shankar Murali, learned counsel, counsel for the first respondent submitted that when the plaintiff is in possession of the suit property and his title is in dispute or under cloud or where defendant asserts title thereto and there is also threat of dispossession from defendant, in such cases, the plaintiff should file a suit for declaration of title and consequential relief of injunction. Further, the learned counsel submitted that since the appellant had disputed the title of the respondent, the Courts below have rightly dismissed the suit. In support of his contention, the learned counsel relied on the following decisions:--

"i) Sellayi and Others Vs. Valliammal and Others, , wherein this Court had held that where plaintiff is in possession, but his title to property is in dispute or under cloud or where defendant asserts title thereto and there is also threat of dispossession from defendant, in such cases plaintiff should file suit for declaration of title and consequential relief of injunction.

ii) Sulochana Vs. Rajinder Singh, , wherein the Hon''ble Supreme Court has held in paragraph 16 as follows:--

"Chapter III-A provides for special provisions. It is confined to eviction of tenants on grounds of bona fide requirement of different classes of landlords specified therein. A summary procedure is provided for. Recourse thereto can be taken only by the specified landlord within the meaning of the provisions of Section 23-J of the Act which means a ''landlord who is a widow or divorced wife'' amongst others. Amongst others a servant of any Government including a member of defence services, would also fall within the purview of the said definition. Only a landlord who comes within the purview of the said definition is entitled to file suit on the ground of his or her bona fide requirement."

iii) C. Rajendran Vs. S. Nirmala , wherein this Court has held that when it is not the case of the appellant that rent was fixed at a particular rate and he was paying same to the respondent therein/plaintiff and the appellant failed to take unambiguous stand that he is tenant under respondent-plaintiff and Act 1960 not attracted, such conflicting and contradictory stands had benefited appellant not in subsistence but only in getting evil day postponed by taking case from trial Court to appellate Court and from appellate Court to Second Appellate Court.

iv) Perumal Konar Vs. G. Ravindran, S. Muthusamy Karaiyalar (died), Andi Karaiyalar, Padmanaban Karaiyalar, Lakshmi and Kannan @ Subramanian, , wherein this Court rejected the plea that only on clear finding by Rent Controller on landlord-tenant relationship, a suit can be filed.

v) Dhandapani (Died), Lalitha and Shanthi Vs. Karpakam, D. Maheswari and D. Seshasai, , wherein this Court has held that on the point of denial of title by the tenant, the civil suit is maintainable, without resorting to the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960."

On a careful consideration of the materials available on record and the submissions made by the learned counsel on either side, it could be seen that there is no dispute that suit property originally belonged to Venkatachalam Pillai. The said Venkatachalam Pillai executed Ex. A5 settlement deed dated 02.06.1958 in favour of his wife Bagyathammal. Venkatachalam Pillai and Bagyathammal had no issues. The said Venkatachalam Pillai had died in a train accident in the year 1960. Bagyathammal residing in the portion of the suit property and leased out other portions to tenants. One Nallammal is the sister of Bagyathammal. The respondent is the son of Nallammal. Rethinammal is the sister of Ganesan. The appellant is the son of the said Rethinammal.

The respondent contended that he alone was taking care of Bagyathammal by providing necessary medical aid to her after the death of Venkatachalam Pillai. Recognising the respondent as the son of Venkatachalam Pillai, he was given a job in railways. In the year 1986 Bagyathammal suffered a paralytic stroke. Subsequently, the respondent took her to Madurai to give treatment. At that time Bagyathammal executed a will in favour of the respondent and also executed a power of attorney in his favour to collect rent from the suit property. Under Ex. A8 sale deed dated 27.08.1986 Bagyathammal sold the property in favour of the respondent. The appellant contended that he was living with Bagyathammal from his childhood and that the respondent obtained her thumb impression in several stamp papers and created a sale deed. During the pendency of the suit, Bagyathammal had died on 05.03.1989. The evidence of DW3 would prove that the tenants are paying the monthly rent to the respondent and not to the appellant. The alleged Will dated Ex. B11 dated 21.05.1988 was executed by Bagyathammal in favour of the appellant. Had the said Will was executed in favour of the appellant, by Bagyathammal, he would not have allowed the tenants to give rent to the respondent.

Ex. A8 sale deed was executed in favour of the respondent by Bagyathammal. The appellant contended that the value of the property vide under Ex. A8 sale deed is more than Rs. 1,00,000/-. But, the property was sold only for a sum of Rs. 20,000/- to the respondent. But, inadequacy of the sale consideration or under valuation of the property will not render the sale deed as invalid or illegal. The respondent is also claiming right over the suit property on the basis of Ex. B11, sale deed alleged to have been executed by Bagyathammal in his favour on 21.05.1988. The plaintiff disputed the due execution of the Will stating that the testatrix was not in a sound disposing state of mind at the time of execution of sale. In such case, the propounder of the Will has to prove the sale under Section 68 of the Indian Evidence Act and explained the suspicious circumstances by adducing unimpeachable evidence regarding the genuineness and authenticity of the Will. The evidence of DW7, who is a doctor by provision would establish that the testatrix was not in a sound disposing state of mind at the time of execution of Will.

In the absence of any acceptable evidence let in by the propounder of the Will, Courts below have rightly held that Ex. B11 Will cannot be relied upon. That apart since the property was also sold to the respondent under Ex. A8 sale deed, the testatrix namely Bagyathammal had no right or title over the property on the date of Ex. B11 Will. Hence, Ex. B11 Will was rightly rejected by the Courts below.

With regard to the maintainability of the suits raised by the appellant stating that the respondent should have initiated proceedings under the Rent Control Act is concerned, the said contention was raised for the first time before lower appellate Court. When the suit property was sold to the respondent under Ex. A8 sale deed dated 27.08.1986, and when there is denial by the appellant from the respondent collecting the rent, the lower appellate Court has rightly held that there is clear denial of title by the appellant and therefore, there is no necessity to file a petition before the Rent Controller and the suit filed before the Civil Court is maintainable.

In the case on hand, the appellant had denied the title of the respondent even prior to the filing of the suit. That being the case there is no necessity for initiating the rent control proceedings as against the appellant to get a finding that the denial of title is bona fide. In Indigent O.P. No. 28 of 1988 the respondent''s title was disputed. Hence, the findings of the lower appellate Court that the suit filed by the respondent for declaration, recovery of possession, mesne profit is maintainable, is correct.

Though there is no dispute with regard to the ratio laid down in the judgments relied upon by the learned counsel for the appellants, since the facts and circumstances are different, the judgments are not applicable to the facts and circumstances to the present case. On the contrary, the judgments relied upon by the learned counsel for the first respondent squarely apply to the facts and circumstances of the present case. In these circumstances, the Courts below have rightly decreed the suit filed by the first respondent and dismissed the suit filed by the appellant.

In these circumstances, I do not find any ground much less any substantial question of law to interfere with the concurrent findings of the Courts below. The second appeals are liable to be dismissed. Accordingly, the same are dismissed. No costs. Consequently, connected miscellaneous petitions are closed.