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Judgment
This second appeal is focussed by the plaintiffs animadverting upon the judgment and decree dated 22.12.2010 made in A.S. No. 129 of 2009
by the learned Principal Subordinate Judge, Melur, confirming the judgment and decree dated 30.04.2009 made in O.S. No. 403 of 2004 by the
learned District Munsif, Melur.
The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.
Broadly, but briefly, narratively, but precisely, avoiding discursive delineation of the case, the relevant facts absolutely necessary for the disposal
of this second appeal would run thus:
The plaintiffs filed the suit seeking the reliefs of declaration that the suit property belonged to the plaintiffs 1 and 2 absolutely and for recovery of
possession of the suit property from the second defendant and for the past and future mesne profits.
The defendants 1 and 2 separately filed their respective written statements resisting the suit.
Whereupon, the trial Court framed the issues and additional issues.
During trial, P.W.1 to P.W.3 were examined and Exs.A.1 to A.6 were marked on the side of the plaintiffs and D.W.1 to D.W.3 were examined
and Exs.B.1 to B.29 were marked on the side of the defendants.
Ultimately, the suit was dismissed by the trial Court.
Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the plaintiffs filed the appeal for nothing but to be dismissed
by the first appellate Court.
Challenging and impugning the judgments and decrees of both the Courts below, the second appeal has been focussed on various grounds by
the plaintiffs and they suggested the following substantial questions of law:
1) In the facts and circumstances of the present case, whether the Plaintiffs/Appellants attestation in Ex.A.3=Ex.B.1 Sale Deed by itself would
impute knowledge of the contents of the Sale Deed or not as per Section 115 of Indian Evidence Act (1 of 1872). K. Velayudham Pillai, M.
Karunakaran Pillai and N. Krishna Das Vs. T. Velayutham Pillai (died) (V. Prama Kumari, V. Thanunathan @ Nageswaran and V. Padmini), .
2) Whether the Courts below has understood Article 65(b) of the Limitation Act, which will apply in cases where the right of possession and
interest itself commenced only on the death of the Hindu female and therefore in this case the suit filed is not barred by limitation? Jagat Ram Vs.
Varinder Prakash (2006) 3 MLJ 141 S C.
3) Whether the Courts below had complied the mandatory provisions in Order 14 Rule 2 and Order 20 Rule 5 C.P.C. so as to state its finding
with reasons upon each separate issue? K.V. Shetty Vs. Woodbrier Estates Limited, Nilgiris District & Others (2008) 4 MLJ 926 .
4) Whether the Plaintiffs/Appellants has to seek for a prayer to cancel the sale deed Ex.A3 when they are not parties to the Sale? Suhrid Singh Vs.
Randhir Singh & Others 2010 (2) MWN (Civil) 221. Supreme Court.
5) Can the Lower Appellate Court infer on its own that there is no evidence by the Plaintiffs to prove that the contents of Sale Deed Ex.A3 is
Not known to them?
(Extracted as such.)
At this juncture, I would like to fumigate my mind with the following decisions of the Honourable Apex Court:
(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 S C
(ii) Kashmir Singh Vs. Harnam Singh and Another, .
(iii) StateBank of India and Others v. S.N. Goya reported in 2009 1 L.W.1.
A plain reading of those precedents would reveal and demonstrate that u/s 100 of the Code of Civil Procedure, Second Appeal cannot be
entertained, unless substantial question of law is involved. It is, therefore, just and necessary to analyse as to whether any substantial question of
law is involved in this case.
Before delving deep into the matter, I felt after hearing both sides that the trial Court did not frame appropriate issues and adding fuel to the fire
and also fanning the flame, the first appellate Court throwing to winds the mandates of law and more specifically, the punctilious of Court
procedure relating to adjudication of first appeals, simply formulated two points for consideration as to (i) whether the appeal was to be allowed or
not and (ii) whether the judgment and decree of the trial Court has to be confirmed or not.
In my considered opinion, the manner and method in which the Courts below dealt with the matter was not satisfactory even by one''s wildest
dreams. Time and again, it has been held by the Honourable Apex Court that unless appropriate issues are before the Court, certainly there is
every likelihood of the Court getting itself mislead and sidetracked and the parties also would get bamboozled and flummoxed, confused and
discombobulated in adducing evidence. It is not a mere ornamental or pulchritudinous to say that there should be appropriate issues, but it is a
meaningful exercise which every Court should resort to with due diligence and caution as otherwise it will lead to travesty of justice. Hence, I
would like to formulate the following substantial questions of law:
(i) Whether the trial Court formulated appropriate issues in accordance with law and deal with the matter?
(ii) Whether the first appellate Court formulated appropriate points for consideration in deciding the appeal?
(iii) Whether the first appellate Court being the last Court of facts failed to adhere to the mandate of law in delving deep into all aspects of the
case?
All the above substantial questions of law are taken together for discussion since they are inter-linked and interwoven, entwined and
intertwined with one another.
The long and short of the admitted or at least undeniable germane facts absolutely necessary for the purpose of deciding this second appeal,
would run thus:
One Kuppusamy, indisputably and indubitably, was the absolute owner of the suit property and other properties. The third plaintiff and the first
defendant happened to be the children of the said Kuppusamy and his wife Rajammal. The said Kuppusamy executed a registered Will dated
23.04.1975 bequeathing life estate in favour of his wife -Rajammal and absolute estate in favour of his daughter -the third plaintiff in respect of the
suit property measuring an extent of 39 cents.
During the life time of Rajammal, it so happened, a sale deed dated 04.11.1990 emerged, whereby the first defendant, even though was not
the owner of the suit property, executed the said sale deed along with his admitted other properties in favour of the second defendant; wherein the
third plaintiff and her son -the second plaintiff put their signatures as attesting witnesses in their house itself. Before the Sub Registrar, one
Premnath, the one other son of the third plaintiff signed as the identifying witness. The second defendant was none but the cultivating tenant in the
suit property. The mother of the third plaintiff -Rajammal who was having life estate at the relevant time of emergence of the sale deed, died in the
year 1997. Thereafter, the settlement deed -Ex.A.2 dated 27.03.1998 emerged in favour of the plaintiffs 1 and 2 at the instance of the third
plaintiff settling the suit property in favour of them. Subsequently, there were exchanges of notices between the plaintiffs and the defendants
touching upon the ownership over the suit property.
The plaintiffs would claim that they came to know about the alleged fraudulent sale transaction as contained in Ex.A.3 -sale deed dated
04.11.1990, whereupon they filed the present suit during the year 1998.
However, the first defendant would gainsay and contradict, repudiate and refute the contentions of the plaintiffs by contending that the plaintiffs
2 and 3 having signed the sale deed as attesting witnesses, now unjustifiably and illegally veer round and take a plea by having a volte face quite
antithetical to what they committed in black and white and they also by their conduct was estopped from contending otherwise.
To the risk of repetition and pleonasm, but without being tautologous, I would like to indicate and highlight that both the Courts below failed to
decide the matter by having before them appropriate issues as well as proper points for consideration respectively. They did not deal with the
matter in a systematic way. In my considered view, both the Courts below failed to take note of the crucial fact that Rajammal -the life estate
holder as per the Will, even though was very much alive at the time of emergence of Ex.B.1 -sale deed dated 04.11.1990 was neither an executant
nor an attesting witness relating to Ex.B.1.
The learned Counsel for the first defendant would vehemently argue that both the Courts below cogently and convincingly, appropriately and
appositely, relied on various precedents and held that even mere attestation of the sale deed by the real owner would be sufficient to constitute a
valid sale deed.
Whereas the learned Counsel for the plaintiffs, in a bid to mince meat and torpedo and pulverise the arguments as put forth and set forth on the
side of the first defendant, would pilot his arguments by pointing out that mere attestation of a sale deed by the real owner would not constitute a
valid sale deed. Trite, the proposition of law, is that the attestor is not expected to know the contents of the document. Attestation means attesting
the signature of the executant and not attesting the genuineness of the contents of the documents. I would like to refer to a few decisions fruitfully in
this regard, which are as follows:
(i) H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, .
(ii) N. Kamalam (Dead) and Another Vs. Ayyasamy and Another, .
(iii) Janki Narayan Bhoir Vs. Narayan Namdeo Kadam, .
(iv) Bhagat Ram and Another Vs. Suresh and Others, .
Unarguably and unassailably, obviously and axiomatically, it is clear that both the Courts below did not take into consideration the fact that
Rajammal was not added as a party to the sale deed and she was not even an attesting witness to it. As such, there should have been specific issue
framed on this point as under:
Whether Ex.B.1 -the sale deed dated 04.11.1990 executed by the first defendant during the life time of Rajammal -a life estate holder, could be
held to be valid even though the third plaintiff, the vested reminder and her son -the second plaintiff attested Ex.B.1?
Switching over to the other point, I would like to spotlight that regarding sale consideration is concerned, the learned Counsel for the first
defendant would stress upon the fact that the second defendant candidly and categorically in her deposition averred that a part of the sale
consideration was paid by her under Ex.B.1 -the sale deed to the third plaintiff directly, even a day anterior to the emergence of the sale deed; for
which the learned Counsel for the plaintiffs would clarify and expound that quite antithetical to Section 92 of the Indian Evidence Act, her evidence
cannot be countenanced and upheld as correct.
It is a thing to say that the second defendant paid the amount to the first defendant, who in turn, paid the same to the third plaintiff, but, that is
not the case of the second defendant. Whereas the second defendant would state as though it was the second defendant who actually paid the part
of the sale consideration to the third plaintiff, but the recitals in the sale deed would speak otherwise to the effect that the entire sale consideration
was paid by the second defendant in favour of the first defendant. This aspect ought to have been considered by both the Courts below, but they
failed to do so.
The theory of estoppel was also ushered in by both the Courts below. Unless there is a specific issue concerning estoppel based on pleadings,
any decision rendered on that count, cannot be upheld to be a sound and valid one. I would like to refer to the decision of the Honourable Apex
Court in H.R. Basavaraj v. Canara Bank reported in (2010) 12 S C C 458 for ready reference. Certain excerpts from it, would run thus:
In general words, estoppel is a principle applicable when one person induces another or intentionally causes the other person to believe
something to be true and to act upon such belief as to change his/her position. In such a case, the former shall be estopped from going back on the
word given. The principle of estoppel is, however, only applicable in cases where the other party has changed his position relying upon the
representation thereby made.
As stated by Lord Denman, in Pickard v. Sears (1837) 6 Ad & El 469) and discussed in B.L. Sreedhar and Others Vs. K.M. Munireddy
(Dead) and Others, , estoppel is said to be based on the maxim, allegans contrarir non est audiendus (a party is not to be heard to allege the
contrary) and is that species of presumption juries et de jure (absolute or conclusive or irrebuttable presumption), where the fact presumed is taken
to be true, not as against all the world, but against a particular party, and that only by reason of some act done; it is in truth a kind of argumentum
ad hominem.
Estoppel is a complex legal notion, involving a combination of several essential elements, namely, statement to be acted upon, acting on the faith of
it, resulting detriment to the actor. Estoppel is often described as a rule of evidence, as indeed it may be so described. But the whole concept is
more correctly viewed as a substantive rule of law. Estoppel is different from contract both in its nature and consequences. But the relationship
between the parties must also be such that the imputed truth of the statement is a necessary step in the constitution of the cause of action. But the
whole case of estoppel fails if the statement is not sufficiently clear and unqualified.*
In the present case, the Bank has granted the loan for proper functioning of the Trust and on hypothecation of the properties of the Trust itself.
From the very beginning, all the transactions which had been entered into had clearly been for the sake of the running of the publications of
Samyuktag and other periodicals like Kasturi. In fact, first KPP and then JKNP, both private limited companies were formed for the sole purpose
of the management of the running of the business of LST. These companies had been formed because LST was running losses and was unable to
properly manage its affairs. Even the appointment of Receivers and the subsequent transactions entered into by the Administrators appointed under
the LST Act had been for the purpose of furthering the business concerns of LST itself. It would be useful to refer in this connection to Depuru
Veeraraghava Reddi Vs. Depuru Kamalamma and Another, where Vishwanatha Sastri, J. (as His Lordship then was) Observed : (AIR p. 405,
para 7)
... Estoppel though a branch of the law of evidence is also capable of being viewed as a substantive rule of law insofar as it helps to create or
defeat rights which would not exist or be taken away but for that doctrine....
In S. Shanmugam Pillai and Others Vs. K. Shanmugam Pillai and Others, it was observed that there are three classes of estoppels that may
arise for consideration; being: (SCC p. 320, para 16)
(1) that which is embodied in Section 115 of the Evidence Act, (2) election in the strict sense of the term whereby the person electing takes a
benefit under the transaction, and (3) ratification i.e. agreeing to abide by the transaction.
It might be said that the action of the Trust falls under the third category whereby it ratified all actions taken by others and benefiting from the same.
Hence, the Trust being the sole beneficiary is not only liable for the repayment but is also estopped from denying its liability under the contract.
As such, I am of the considered view that the following issues based on the aforesaid facts, would emerge in this regard:
(i) Whether the defendants could plead anything contrary to the recitals in the sale deed in view of the embargo as embodied in Section 92 of the
Indian Evidence Act and more specifically, relating to payment of sale consideration?
(ii) Whether the principle of estoppel could be pressed into service by the defendants as against the plaintiffs on the ground that the second plaintiff
and the third plaintiff signed as attestors to the said sale deed -Ex.B.1?
There is also one other crucial point which I would like to highlight here. A Will necessarily has to be proved strictly in accordance with
Section 68 of the Indian Evidence Act. My mind is redolent and reminiscent of the decision in S.R. Srinivasa and Others v. S. Padmavathamma
reported in (2010) 5 S C C 274 .
The learned Counsel for the plaintiffs would unmindfully and casually submit that inasmuch as in the pre-litigation notice as well as the written
statement itself, the first defendant admitted the genuineness of the Will and the entitlement of the third plaintiff as absolute owner after the death of
Rajammal, the life estate holder in respect of the suit property, there arose no necessity for the plaintiffs to prove the Will as per Section 68 of the
Indian Evidence Act. According to the plaintiffs, if any evidence is sought to be adduced to prove the unchallenged and undisputed Will, it might
amount to over egging the pudding. Precisely and pithily, such a view of the plaintiffs is enormously wrong in the eye of law.
Both sides in the course of their arguments drew my attention to the relevant portion in the cross-examination of the first defendant, wherein
there was a challenge to the said Will by the second defendant. As such, implied admissions et al would not in any manner be taken as proof of a
Will. Mere marking of a Will is different from proving it, I need not further elaborate on it. As such, there was sheer misunderstanding of the
procedural aspects involved in putting forth the Will as evidence on the side of the plaintiffs; wherefore, I hold that the Will was not proved strictly
as per Section 68 of the Indian Evidence Act. I am of the view that one other issue also could be framed in this regard thusly:
Whether the plaintiffs proved the Will executed by Kuppusamy in favour of Rajammal and the third plaintiff?
A fortiori, the Courts below failed to concentrate on these aspects highlighted supra. On balance, the judgment of the first appellate Court has
to be set aside, remitting the matter back to the trial Court would make the parties to wait for getting justice endlessly. The substantial questions of
law are answered accordingly. Consequently, the judgment and decree of the first appellate Court is set aside and the matter is remitted back to
the first appellate Court which is the last Court of facts, to decide the matter afresh after formulating the appropriate points for consideration on the
aforesaid additional issues framed by me. Both sides shall be given due opportunity to let in additional evidence on their side. The first appellate
Court shall deal with the matter strictly in accordance with law, untrammelled and uninfluenced by any of the observations made by this Court on
the merits of the case as expeditiously as possible preferably within a period of four months from the date of receipt of a copy of this judgment.
Both the parties shall appear before the first appellate Court on 21.11.2011.
For clarity sake, I would like to set out hereunder the additional issues framed by this Court for being dealt with by the first appellate Court:
(i) Whether Ex.B.1 -the sale deed dated 04.11.1990 executed by the first defendant during the life time of Rajammal -the life estate holder, could
be held to be valid even though the third plaintiff, the vested reminder and her son -the second plaintiff attested Ex.B.1?
(ii) Whether the defendants could plead anything contrary to the recitals in the sale deed in view of the embargo as embodied in Section 92 of the
Indian Evidence Act and more specifically, relating to payment of sale consideration?
(iii) Whether the principle of estoppel could be pressed into service by the defendants as against the plaintiffs on the ground that the second plaintiff
and the third plaintiff signed as attestors to the said sale deed -Ex.B.1?
(iv) Whether the plaintiffs proved the Will executed by Kuppusamy in favour of Rajammal and the third plaintiff?
In the result, the second appeal is allowed to the extent indicated above. Consequently, the connected Miscellaneous Petition is closed. No
costs.