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Ganesan Vs. Kayalvizhi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberS.A.(MD)No.884 of 2010 and M.P.(MD) No.1 of 2011
Judge
ActsSpecific relief Act - Sections 12, 20; Evidence Act, 1872 - Section 114; Code of Civil Procedure (CPC) - Section 100 - Order 41 Rule 27; Transfer of Property Act - Section 52
AppellantGanesan
RespondentKayalvizhi and ors.
Excerpt:
specific relief act - section 12 - specific performance of part of contract -- initially two defendants were arrayed and subsequently the third defendant/appellant, who is the third party purchaser, pendente lite was also added. the first defendant is none but the brother-in-law of the second defendant. no advance amount was passed from the plaintiff to the first defendant; in turn, the first defendant did not pay any amount to the second defendant. the third defendant purchased the suit property from the second defendant and his three children as cited supra; and thereby the original owners put the third defendant in possession and enjoyment of the suit property. at no point of time, the first defendant or the plaintiff was put in possession of the suit property. the second.....1. this second appeal is focussed by the original 3rd defendant animadverting upon the judgment and decree dated 23.09.2010, passed in a.s.no.5 of 2010 by the learned principal district judge, sivagangai in confirming the judgment and decree dated 14.10.2009, passed in o.s.no.3 of 2008 by the learned subordinate judge, devakottai.2. the parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial court.3. a summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: the plaintiff filed the suit for specific performance of the agreement to sell dated 26.07.2006 and for consequential reliefs. initially two defendants were arrayed and subsequently.....
Judgment:

1. This Second Appeal is focussed by the original 3rd defendant animadverting upon the judgment and decree dated 23.09.2010, passed in A.S.No.5 of 2010 by the learned Principal District Judge, Sivagangai in confirming the judgment and decree dated 14.10.2009, passed in O.S.No.3 of 2008 by the learned Subordinate Judge, Devakottai.

2. The parties, for the sake of convenience, are referred to hereunder according to their litigative status and ranking before the trial Court.

3. A summation and summarisation of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus: The plaintiff filed the suit for specific performance of the agreement to sell dated 26.07.2006 and for consequential reliefs. Initially two defendants were arrayed and subsequently the third defendant/appellant, who is the third party purchaser, pendente lite was also added.

4. All the three defendants separately filed their respective written statements, resisting the suit.

5. Whereupon, the relevant issues were framed by the trial Court.

6. During trial, the plaintiff examined herself as P.W.1 along with P.Ws.2 to 4 and marked Exs.A.1 to A.11 on her side. The first defendant examined himself as D.W.1 along with D.Ws.2 and 3 and marked Exs.B.1 to B.7 on their side. A third party document was marked as Ex.X.1.

7. Ultimately, the suit was decreed by the trial Court, as against which the appeal was filed by the 3rd defendant for nothing but to be dismissed.

8. Being aggrieved by and dissatisfied with the judgment and decree of the first appellate Court, the 3rd defendant preferred this Second Appeal on various grounds, suggesting the following substantial questions of law: (1) Whether the provisions of section 52 of Transfer of Property Act evolving the principles of Pendentilite is applicable only to the extent of right of the plaintiff or to the entire suit property despite the fact that plaintiff do not have right to the entire extent?

(2) Whether the lower appellate court is correct in holding the purchaser pendentilite is not entitled to raise any ground whatsoever and is completely barred from raising any plea?

(3) Whether attestation to a document amounts to admission of its contents and whether the courts below are correct in holding that since some of the legal heirs have attested Ex.A1 power deed and Ex.A2 sale agreement, they are legally valid though the person who executed it ie the second defendant do not have full title to the suit property?

(4) Whether the courts below failed to see that as per the provisions of sec 12 of the specific relief Act, if major portion of the contract could not be executed and the part of the contract to be executed could not be indivisible, discretionary of relief of specific performance could not be granted? (5) Whether the courts below failed to see that under section 20 of the Specific relief Act the grant of relief if purely discretionary and need not be granted merely because it is lawful to do so and that the conduct of the parties must also be taken into account and in the instant case the conduct of the parties is such that collusive and intended to cheat the appellant some how or the other and therefore they are entitled to any relief? (6) Whether the courts below failed to see that while the part of the contract could not be separately executed if the court considers that the execution of the part of the contract would lead multiplicity of proceedings, then the discretionary relief of specific performance could not be granted? (Extracted as such)

9. I would like to fumigate my mind with the principles as found enunciated and enshrined in the following decisions of the Honourable Apex Court:

(i) Hero Vinoth (Minor) v. Seshammal reported in (2006) 5 Supreme Court Cases 545.

(ii) Kashmir Singh v. Harnam Singh and another reported in 2008 (4) SCALE

300.

(iii) State Bank of India and others v. S.N.Goya reported in 2009-1-L.W.1.

10. The aforesaid precedents would indicate and exemplify that unless any substantial question of law is involved, the question of entertaining a Second Appeal would not arise. Having that in mind, I heard both sides.

11. Precisely and pithily the arguments as put forth and set forth by the learned counsel for the 3rd defendant/appellant would run thus: The doctrine of lis pendens was wrongly applied by both the Courts below and they held as though the pendente lite purchaser, in view of the doctrine of lis pendens could not process his claim as his purchase was a nullity and so on. A pendente lite purchaser steps into the shoes of the seller. Without understanding the basic principles, both the Courts below decided the lis, warranting interference in the Second Appeal. Indisputably and indubitably the suit property happened to be the joint family property, over which the coparceners, namely D2 and his two sons, namely A.Vanmiki and A.Palanikumar, and his daughter, namely Uma Devi had right of ownership. While so, the Courts below failed to consider that the alleged power of attorney executed by the second defendant in favour of first defendant, empowering him to sell the entire property, was not effective with regard to the 3/4 shares of the other coparceners but valid only in respect of 1/4th share of the executant, namely the second defendant. Simply because D2's sons signed the power deed, they cannot be mulcted with the knowledge of the contents of power deed and it cannot be countenanced that they forewent their right over their shares in the coparceners property.

12. The plaintiff is none but the wife of the first defendant and both were living under the same roof at the relevant time of emergence of the agreement to sell - Ex.A.2. As such the first defendant stage managed things in such a manner to project as though Ex.A.2, is a genuine document. The first defendant is none but the brother-in-law of the second defendant. The later reposed confidence in the former who turned turtle and betrayed the confidence, but created such Ex.A.2 the agreement to sell with his wife. No advance amount was passed from the plaintiff to the first defendant; In turn, the first defendant did not pay any amount to the second defendant. The second defendant, when he intended to go abroad executed the power of attorney only for the purpose of empowering D1 to manage the property and not for creating encumbrance, but the first defendant betrayed D2.

13. The third defendant purchased the suit property from the second defendant and his three children as cited supra; and thereby the original owners put the third defendant in possession and enjoyment of the suit property. At no point of time, the first defendant or the plaintiff was put in possession of the suit property. D3 reposed confidence in D2, who betrayed D3 and D2, though not initially colluded with D1 and the plaintiff, however, later D2 colluded with D1 and the plaintiff. Soon after the decree passed by the trial Court, D2 hurriedly and collusively executed sale deed in favour of the plaintiff and thereby exposed himself that he betrayed the confidence reposed by the third defendant on him. The Written Statement of D3 is verbatim the same as that of D2. As such by no stretch of imagination, the plaintiff could seek for enforcement of the agreement to sale in respect of the entire property over which the defendant had only 1/4th share.

14. In a bid to mince meat, and torpedo and pulverise the arguments as put forth and set forth on the side of the third defendant, the learned Counsel for the plaintiff would advance his argument, the long and short of it would run thus:

(a) The doctrine of Lis pendens has been correctly understood by both the Courts below and held that the pendente lite purchaser could not claim more right than what his vendor could have.

(b) It is not the contention of the third defendant that he had no knowledge of the pendency of the proceedings; even otherwise the doctrine of lis pendens would be applicable, even if a purchaser purchased a property pending suit ignorant of the pendency of the litigation.

(c) In the written statement itself, the third defendant candidly and categorically stated that the second defendant as Kartha of the family signed the power deed and it was attested by his two sons by way of ex abundanti cautela presumably keeping in mind the maxim abundans cautela non nocet (Abundant caution does no harm). There is nothing to indicate and exemplify that her daughter also had any right.

(d) The third defendant did not figure himself as witness. The third defendant before the first appellate Court went to the extent of contending that he had signed only some blank papers, which were converted into written statement of D3 by the advocate concerned. Such a plea is too big a pill to swallow, wherefore all these facts could not be countenanced and upheld as valid contentions on the side of the third defendant.

(e) The sons of the second defendant having signed the registered power deed, now cannot turn turtle, by having a volte face and contend as though they were not aware of the contents of it and for that matter they never figured as a witness during trial. As such both the Courts below considered the pros and corns of the matter and applied correctly the provisions of law and decreed the suit, warranting no interference in the Second Appeal.

15. I would like to refer to the decisions cited on either side before commencing my discussions. The learned counsel for the third defendant cited the following decisions:

(i) Sardar Singh v. Krishna Devi reported in AIR 1995 SUPREME COURT 491. An excerpt from it would run thus:

 15. In view of the finding that the appellant had half share in the property contracted to be sold by Kartar Lal, his brother, the agreement of sale does not bind the appellant. The decree for specific performance as against Kartar Lal became final. Admittedly, the respondent and her husband are neighbours. the appellant and his brother being co-parceners or co-owners and the appellant after getting the tenant ejected both the brothers started living in the house. As a prudent purchaser Joginder Nath ought to have made enquiries whether Kartar Lal had exclusive title to the property. Evidence of mutation of names in the Municipal Register establishes that the property was mutated in the joint names of the appellant and Kartar Lal and was in joint possession and enjoyment. The Courts below, therefore, have committed manifest error of law in exercising their discretion directing specific performance of the contract for the entire property. The house being divisible and the appellant being not a consenting party to the contract, equity and justice demand partial enforcement of contract, instead of refusing specific performance in its entirety, which would meet the ends of justice. Accordingly, we hold that Joginder Nath having contracted to purchase the property, it must be referable only in respect of half the right, title and interest held by Kartar Lal, his vendor. The first respondent being successor in interest, becomes entitled to the enforcement of the contract of the half share by specific performance. The decree of the trial Court is confirmed only to the extent of half share in the aforestated property. The appeal is accordingly allowed and the decree of the High Court is set aside and that of the trial Court is modified to the above extent. The parties are directed to bear their own costs throughout.

(ii) Selvanachi, K.A. v. Dr.S.R. Sekar reported in 2003(1) CTC 745. Certain Excerpts from it would run thus:

10. Those observations made by the learned judges cannot be treated as having laid down a proposition of law that all attestors of all documents must be imputed with knowledge of the contents thereof and even when such contents are adverse to the interest of the attestors so that the attestors are estopped from questioning the same solely by reason of the fact of their having attested the document. Observations based on personal perceptions and experience of individual Judges cannot be elevated to the status of Rules of law. Custom and usage are always a matter of evidence and strict proof

11. Those observations are also clearly inconsistent with the law that had been laid down by the Privy Council in the case of Pandurang Krishnaji and cannot be regarded as having laid down such inconsistent law. Moreover, whatever may have been the practice in the years 1912 or 1924, the same cannot be regarded as the practice even eighty years later, when the awareness of the requirements of law is far greater than what it was eighty years ago. Further, on principle it is not possible to hold that attestation of a signature is to be deemed as acceptance of the contents of the document which has been executed by the signatory whose signature is attested by the attestor. There should be something more than mere attestation to impute such knowledge of the contents so as to bind the attestors.

(iii) Panchananda v. Rajani Kanta reported in A.I.R. 1931 Calcutta 463. Certain Excerpts from it would run thus:

The case was decided by a Pull Bench of the Madras High Court that consisted of Sir John Wallis Kt., C. J., and Oldfield and Kumaraswami Sastri, JJ. In the course of the hearing a large number of authorities were referred to and the matter was considered in the fullest possible manner. We are of opinion that this case should be taken to govern eases of the kind with which we are now dealing. It is a complete and definite authority for holding that where one member of a joint Hindu family purports to sell not only his own share but those of his coparceners and the vendor is not able to give a good title to anything more than his own individual share in the property; if the purchaser desires to have a remedy by way of specific performance he cannot claim more than the share of the actual contracting member of the joint family and he can only obtain even that share by being prepared to pay not merely a proportionate part of the purchase price but the whole of the sum originally agreed upon as the consideration for the sale of the entire property in question. (iv) Triloki Vishwakarma v. Zaitun Nisa reported in AIR 1992 PATNA 40. Certain Excerpts from it would run thus:

73. Taking thus the facts and circumstances of this case and particularly in view of the fact that even if a decree for Specific Performance of Contract is granted the same may be against the interest of the co-parceners, in my opinion, it will not be proper to exercise the Court's discretion in favour of the plaintiff.

16. The learned counsel for the plaintiff cited the following decision of this Court:

(i) Ramanathan Chettiar, A. v. R. Ranganayaki reported in 2008(2) CTC 265. Certain excerpt from it would run thus:

54. The fact remains that only by virtue of Exs.A.11 to A.14, subsequently the third defendant purchased from the said Natarajan, the power agent of the first defendant, the properties, so to say, precisely during the pendency of the suit which would attract the doctrine of 'lis pendense'. As such, the sales are hit by the doctrine of 'lis pendense'. The facts would further demonstrate that the first defendant as well as the power agent of the first defendant were fully aware of the pendency of the suit and with that knowledge, they sold.

55. The learned Counsel for the third defendant would argue that the third defendant was not aware of such publications. Inasmuch as, the publications were made in the daily news papers, the third defendant cannot be heard to contend that she was not award of the dispute between the plaintiff and the first defendant.

56. Hence, it cannot be held that the third defendant is a bona fide purchaser for value without notice of it.

57. Furthermore, the crucial point is that the doctrine of 'lis pendense' would be applicable irrespective of the fact whether the purchaser had knowledge about the pendency of the suit or not. Hence, in this view of the matter, the third defendant is not in a better position to canvass the case of the first defendant and try to achieve success in the litigative battle. Accordingly, it is decided that the third defendant has not proved that she is the bona fide purchaser.

17. At this juncture, I would like to refer to the following decision of the Hon'ble Apex Court T.G.Ashok Kumar v. Govindammal reported in (2011) 2 MLJ 317 (SC). Certain excerpt from it would run thus:

10. The principle underlying Section 52 is clear. If during the pendency of any suit in a court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitled, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bonafide transferee's right and title are saved fully or partially.

11. In this case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a court of competent jurisdiction as on the date of sale (11.4.1990) by the second respondent in favour of the appellant. The partition suit was not collusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did not in any way affect the right of the first respondent (plaintiff in the partition suit) or the decree made in her favour in the said partition suit. It is thus evident that the sale by second respondent in favour of the appellant though not void, did not bind the first respondent who was the plaintiff in the partition suit. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would therefore be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property shown by the letters B, C, D, E, F, G, H, I, B in the Commissioner's sketch (Exhibit C-5) was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But in regard to the remaining portion of the suit property namely the portion shown by the letters A, B, I, H, A in the Commissioner's sketch (Exhibit C-5) which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant is effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and consequential injunction.

12. We are therefore of the view that the suit ought not to have been dismissed in entirety even if the sale by the second respondent in favour of appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be not the exclusive owner, in the pending partition suit. Therefore the courts below ought to have decreed the appellant's suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit.

18. The meaning of lis pendens as found in Black's Law Disctionary is extracted hereunder for ready reference:

1. A Pending lawsuit.

2. The jurisdiction, power, or control acquired by a court over property while a legal action is pending.

3. A notice, recorded in the chain of title or real property, required or permitted in some jurisdictions to warn all persons that certain property is the subject matter of litigation, and that any interest acquired during the pendency of the suit are subject to its outcome. - Also termed (in sense 3) notice of lis pendens; notice of pendency. Cf. PENDENTE LITE.

19. Pithily and precisely, compendiously and concisely a pendente lite purchaser cannot put forth an independent plea of his own apart from what his vendor has taken or could take. Both the Courts below discussed the evidence and found that the second defendant's sons signed the Power of Attorney Deed - Ex.A.1, which is a registered one. Certain recitals from it would run thus:  vdf;F g{h;tPfg;ghj;jpag;gl;lJk;, ehd; mDgtpj;Jte;J vd; bgahpy; gl;lh jhf;fyhfp jw;fhyk; tiu eph;tpy;yA;fRj;jpaha; vd; jdpj;j RthjPd mDgtj;jpYs;s njd; moapw;fz;l brhj;ij ehd; Behpy; nUe;J guhkhpf;f Koahjgoahy; jA;fis vdJ gth;V$z;lhf epakdk; bra;J fPH;f;fz;l mjpfhuA;fis jA;fSf;F ehd; tHA;fpa[s;Bsd;. jhA;fs; nJ Kjy; njd; moapw;fz;l brhj;ij vd; Kfth; vd;w Kiwapy; guhkhpj;J te;Jk;, thptifauhf;fs; brYj;jpte;Jk;, moapw;fz;l brhj;jpy; ahUk; mf;fpukgpuBtrk; bra;jhy; mth;fis rl;lg;go mg;g[wg;gLj;j Btz;oa rfy eltof;iffs; midj;ija[k; bra;at[k;, moapw;fz;l brhj;ij ahUf;Fk; tpw;gid bra;at[k;, mjw;fhd fpuaj;Jif Bgrp tpiy epr;rapf;ft[k;, ml;thd;!; Jiffs; bgwt[k;, ghf;fpj;Jiffis bgw;Wf;bfhz;L Bkw;goahh;fs; rpytpy; Bkw;goahh;fs; bgah;fSf;Bfh, Bkw;goahh;fs; Fwpg;gpLk; egh;fs; bgah;fSf;Bfh fpuag;gj;jpuA;fs; vGjp fpuag;gj;jpuA;fspy; vdf;fhf jhA;fBs ifbaGj;J bra;J gjpt[ bra;J bfhLf;ft[k;, gjpt[ mYtyfj;jpy; vdf;fhf bra;a Btz;oa rfy eltof;iffs; midj;ija[k; jhA;fBs bra;J Kof;ft[k;, bgah; khWjy; eKdh nju vz;lh!;bkz;Lf;fspy; ifbaGj;Jf;fs; bra;J bfhLj;J fpiuak; bgWgth;fs; bgaUf;F bgah; khw;wk; bra;J bfhLf;ft[k;.

(Emphasised supplied.)

As such the second defendant projected himself as the absolute owner of the suit property in Ex.A.1 - Power of Attorney and it was attested by his two sons. Over and above that one of the sons, namely Palanikumar attested the agreement of sale Ex.A.2 executed by the first defendant, the power of attorney holder in favour of the plaintiff. As such, I recollect the legal adage that the preponderance of probabilities would govern the the adjudication in civil cases.

20. A cumulative reading of both the documents would clearly convey and connote the message that the father, namely the second defendant executed the power deed in favour of his brother-in-law the first defendant, the second defendant's sons knowingly and virtually signifying and according their consent, signed it as witnesses and among the two sons of the second defendant, one son also attested the agreement of sale - Ex.A.2 executed by the first defendant in favour of the plaintiff. As such, so far as this case is concerned, the contention on the side of the third defendant that mere attestation will not cloth the attesting witnesses with the knowledge of the contents does not hold water and it fails to carry conviction with this Court, wherefore such plea of D3 cannot be countenanced and upheld as legally tenable.

21. The second defendant, and the third defendant in their respective written statements averred that the second defendant singed the power deed as Kartha of the property, but Ex.A.1 does not speak so. Even if it is viewed in that angle, it is crystal clear that the other coparceners, who signed as witnesses to the power deed as held supra had knowledge of the contents of Ex.A.1 and signed it, whereby they signified their consent for the sale to be effected by the power holder, the plaintiff. Such alleged co-parceners, now cannot by way of having a volte face plead otherwise. The third defendant's contention that the second defendant initially protected his right but subsequently, he colluded with the first defendant and the plaintiff, cannot be countenanced as the third defendant is nowhere stated to be ignorant of worldly affairs.

22. I recollect and call up the following legal maxims: (i) Lex succurrit ignoranti. (The law assists the ignorant.) (ii) Lex succurrit minoribus. (The law assists the minors.)

23. But, the pertinent question arises as to whether the third defendant could be visualised as a person entitled to such sympathy cutting across all legal provisions and punctilious of Court procedures; for which the learned counsel for the plaintiff correctly and convincingly would point out that the third defendant was not so ignorant, as in addition to be having been the pendente lite purchaser, alienated part of the property which he so purchased to various third parties and as such, D3 even by phantasmagorical thoughts cannot be visualised as an ignorant person. In fact, the third defendant never examined himself as a witness.

24. In this connection I would like cite the following precedents: (i) (1999) 3 Supreme Court Cases 573 - Vidhyadhar v. Manikrao and another. Certain excerpt from it would run thus:

17. Where a party to the suit does not appear in the witness-box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh. The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh case. The Allahabad High Court in Arjun Singh v. Virendra Nath held that if a party abstains from entering the witness-box, it would give rise to an adverse inference against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand drew a presumption under Section 114 of the Evidence Act, 1872 against a party who did not enter the witness-box.

18. Defendant 1 himself was not a party to the transaction of sale between Defendant 2 and the plaintiff. He himself had no personal knowledge of the terms settled between Defendant 2 and the plaintiff. The transaction was not settled in his presence nor was any payment made in his presence. Nor, for that matter, was he a scribe or marginal witness of that sale deed. Could, in this situation, Defendant 1 have raised a plea as to the validity of the sale deed on the ground of inadequacy of consideration or part-payment thereof? Defendant 2 alone, who was the executant of the sale deed, could have raised an objection as to the validity of the sale deed on the ground that it was without consideration or that the consideration paid to him was highly inadequate. But he, as pointed out earlier, admitted the claim of the plaintiff whose claim in the suit was based on the sale deed, executed by Defendant 2 in his favour. The property having been transferred to him, the plaintiff became entitled to all the reliefs which could have been claimed by Defendant 2 against Defendant 1 including redemption of the mortgaged property....

21. The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances. For example, in a landlord-tenant matter where the landlord is possessed of many properties and cannot possibly seek eviction of his tenant for bona fide need from one of the properties, the land lord may ostensibly transfer that property to a person who is not possessed of any other property so that that person, namely, the transferee, may institute eviction proceedings on the ground of his genuine need and thus evict the tenant who could not have been otherwise evicted. In this situation, the deed by which the property was intended to be transferred, would be a collusive deed representing a sham transaction which was never intended to be acted upon. It would be open to the tenant in his capacity as a defendant to assert, plead and prove that the deed was fictitious and collusive in nature. We, therefore, cannot subscribe to the view expressed by the Privy Council in the case of Lal Achal Ram in the broad terms in which it is expressed but do approve the law laid down by the Calcutta, Patna and Orissa High Courts as pointed out above.

22. In the instant case, the property which was mortgaged in favour of Defendant 1 was transferred by Defendant 2, who was the owner of the property, to the plaintiff. This transfer does not, in any way, affect the rights of Defendant 1 who was the mortgagee and the mortgage in his favour, in spite of the transfer, subsisted. When the present suit for redemption was filed by the plaintiff, Defendant 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered the witness-box, Defendant 2 did not cross-examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him. Defendant 1 alone raised the question of validity of the sale deed in favour of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to Defendant 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the sale deed on the ground that the amount of consideration had not been paid, Defendant 2 (sic 1) did not, in support of his case, enter the witness-box. Instead, he deputed his brother to appear as a witness in the case. He did enter the witness-box but could not prove that the sale consideration had not been paid to Defendant 2.

23. The findings of fact concurrently recorded by the trial Court as also by the lower appellate court could not have been legally upset by the High Court in a second appeal under Section 100 CPC unless it was shown that the findings were perverse, being based on no evidence or that on the evidence on record, no reasonable person could have come to that conclusion.

(ii) (2010) 10 Supreme Court cases 512 - Man Kaur (Dead) by Lrs. V. Hartar Singh Sangha,certain excerpts from its would run thus: 14. In Vidhyadhar v. Manikrao this Court reiterated the following well- recognised legal position: (SCC pp. 583-84, para 17)

17. Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross-examined by the other side, a presumption would arise that the case set up by him is not correct?.

15. We may next refer to two decisions of this Court which considered the evidentiary value of the depositions of the attorney-holders. This Court in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. held as follows: (SCC pp. 222-24, paras 13, 17-18 & 21)

13. Order 3 Rules 1 and 2 CPC empower the holder of power of attorney to 'act' on behalf of the principal. In our view the word 'acts' employed in Order 3 Rules 1 and 2 CPC confines only to in respect of 'acts' done by the power-of- attorney holder in exercise of power granted by the instrument. The term 'acts' would not include deposing in place and instead of the principal. In other words, if the power-of-attorney holder has rendered some 'acts' in pursuance of power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter of which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined. * * *

17. In Shambhu Dutt Shastri v. State of Rajasthan it was held that a general power-of-attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in the witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power-of-attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.

18. The aforesaid judgment was quoted with approval in Ram Prasad v. Hari Narain. It was held that the word 'acts' used in Rule 2 of Order 3 CPC does not include the act of power-of-attorney holder to appear as a witness on behalf of a party. Power-of-attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of CPC. * * *

21. We hold that the view taken by the Rajasthan High Court in Shambhu Dutt Shastri followed and reiterated in Ram Prasad is the correct view. (emphasis supplied)

18. We may now summarise for convenience, the position as to who should give evidence in regard to matters involving personal knowledge: ...

(g) Where the law requires or contemplated the plaintiff or other party to a proceeding, to establish or prove something with reference to his state of mind or conduct, normally the person concerned alone has to give evidence and not an attorney-holder. A landlord who seeks eviction of his tenant, on the ground of his bona fide need and a purchaser seeking specific performance who has to show his readiness and willingness fall under this category. There is however a recognised exception to this requirement. Where all the affairs of a party are completely managed, transacted and looked after by an attorney (who may happen to be a close family member), it may be possible to accept the evidence of such attorney even with reference to bona fides or readiness and willingness. Examples of such attorney-holders are a husband/wife exclusively managing the affairs of his/her spouse, a son/daughter exclusively managing the affairs of an old and infirm parent, a father/mother exclusively managing the affairs of a son/daughter living abroad.

25. A party who is having exclusive knowledge of certain facts should examine himself as a witness as otherwise adverse interference could be drawn as against him - the third defendant. The bare ipse dixit of D3, cannot be taken as evidence. As such the third defendant after filing the written statement, no doubt verbatim as that of the second defendant, never choose to examine himself as a witness even to speak about the alleged betrayal of D2 as against him. Wherefore, it is too late in the day on the part the third defendant to blame the second defendant and such blame game fails to convince this Court.

26. In fact, the learned counsel for the appellant/third defendant would submit that during the pendency of the appeal before the first appellate Court, D3 filed an application under Order 41 Rule 27 of C.P.C. so as to mark the sale deeds, which were executed pendente lite by the third defendant in respect of a part of the suit property and also the sale deed executed by the first defendant in favour of the plaintiff after the decree was passed in response to the decree but the lower appellate Court rejected such prayer. In my opinion, the appellate Court shot down and rejected correctly and legally such prayer because those were not germane for deciding the case, as admittedly those deeds emerged pendente lite, which were having no bearing on the adjudication of the appeal.

27. Regarding the right of the daughter of the second defendant, when the transaction emerged is concerned, there is no substantial pleading as to When she became a coparcener? and Whether she got married before 25.03.1989 or after that? so as to attract the relevant provisions of the Tamil Nadu Act, 1 of 1990.

28. The learned counsel for the third defendant would submit that the onus is on the plaintiff and not on the third defendant to prove those facts because the plaintiff had chosen to agree to purchase the joint family property only from the agent of the second defendant and in such a case, the burden was not on the third defendant to prove all those facts.

29. I recollect the maxims

(i) Affirmantis est probare. (The person who affirms must prove.)

(ii) Affirmanti, non neganti, incumbit probatio. (The proof is incumbent upon the one who affirms, not on the one who denies.)

30. The onus is on the plaintiff to prove his/her case. But the plaintiff cannot be called upon to prove the defendant's plea which legal position should not also be lost sight of. The defendant's pleadings cannot be expected to be proved by the plaintiff. If at all the third defendant was so sure of his plea he ought to have taken efforts to establish and demonstrate that the daughter of the second defendant was unmarried as on 25.03.1989, but he has not chosen to do so for reasons best known to himself. To the risk of repetition and pleonasm, but without being tautologous, I would stress upon the fact that D3 virtually refrained from adducing evidence during trial.

31. Absolutely, there is no plausible or probable explanation as to what made the defendants 2 and 3 to sign as a witness to the power deed Ex.A.1 and also one of them to sign as an attesting witness to agreement to sell - Ex.A.2. Perusal of the evidence would unambiguously and unequivocally, axiomatically and glaringly revealed that show that the properties stood as per revenue records only in the name of the second defendant who posed and projected, claimed and asserted himself as absolute owner in the power of attorney deed Ex.A.1 and in that deed alone his two sons signed as attesting witnesses. The two sons of D2, signed Ex.A.1, knowing the consequences and it is not as though they posed as attestors with out knowing that it would hit them for six not to put too fine a point on it, in this factual matrix, the plaintiff cannot be called upon to prove anything more apart, from marking those documents and examining witnesses on her side as she had done in this case.

32. The contention on the side of the third defendant that the suit property is a joint family property; the second defendant who was having only 1/4 share executed such a power of attorney deed and which would not bind on the other coparceners, are neither here nor there. At no point of time any step was taken to examine the other coparceners also at the instance of the third defendant. As such in the Second Appeal, this Court cannot go beyond what was pleaded.

33. At this juncture I recollect and call up the maxim Judicis est judicare accundum allegata et probata. - (It is the proper role of a judge to decide according to the allegations and proofs.)

34. Here, from the available pleadings the Courts below framed issues and points for consideration as the case may be decided the lis au fait with law after analysing the evidence au curante with facts and in such a case, I could not see any perversity or illegality in the judgment rendered by the trial Court, which was correctly confirmed by the first appellate Court.

35. A fortiori, I see no question of law, much less any substantial question of law involved in this matter and the Second Appeal deserves to be dismissed.

36. In the result, the Second Appeal is dismissed. No costs. Consequently, connected M.P.(MD) No.1 of 2011 is dismissed.


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