IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 21.12.2009 Coram The Honourable Mr.Justice M.JEYAPAUL S.A.No.865 of 1998 and M.P.No.1929 of 2009 Nanjappa Gounder ... Appellant Vs. 1.Ganapathy Appan (died) 2.Meenakshi Ammal 3.kaliammal 4.Devammal 5.Sivakami 6.Karunanidhi 7.Radhamani ... Respondents (RR 4 to 7 are brought on record as legal representatives of the deceased 1st respondent vide order of Court dated 17.09.2003 made in C.M.P.Nos.18828 to 18830 of 2002 in S.A.No.865/98) Second Appeal filed under Section 100 of Civil Procedure Code of second appeal against the Judgment and Decree dated 31.12.1997, made in A.S.No.84 of 1994 on the file of the Court of I Additional District Judge cum-Chief Judicial Magistrate, Coimbatore reversing the Judgment and Decree dated 09.02.1994 made in O.S.No.874 of 1989 on the file of the Court of III Additional District Munsif, Coimbatore. For Appellant : Mr.S.V.Jayaraman SC for Mr.MA.P.Thangavel For RR 2, 4 to 7 : Mr.T.R.RajaGopal SC for T.R.Rajaraman For R 3 : No appearance JUDGMENT The third defendant is the appellant herein. 2. The suit was filed seeking partition of the suit property into three equal shares by metes and bounds and to allot one such share to the plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 3. The first respondent/plaintiff has alleged in the plaint that the suit property bearing T.S.No.752/5 measuring 1.46 acres at Kalapatty Village in Coimbatore Taluk, absolutely belonged to the plaintiff's mother Chinamarakkal. She died on 02.03.1982. The defendants 1 and 2 and the plaintiff, who are the daughters and son of Chinamarakkal respectively. As she died intestate, each one is entitled to one-third share in the suit property. The third defendant is none other than the husband of the second defendant. On 13.06.1961 Chinamarakkal executed an usufructuary mortgage in favour of the third defendant for a sum of Rs.1,500/- and possession was delivered to the third defendant. Inspite of the fact that Chinamarakkal was ready to redeem the mortgage, the third defendant postponed the matter with an ulterior motive to squat upon the suit property as far as possible. The third defendant created make-believe sale deed dated 25.07.1966 for a sum of Rs.1500/- collusively with the other defendants. Chinamarakkal never executed any sale deed in favour of the third defendant in respect of the suit property. The revenue records still stand in the name of Chinamarakkal. The so called sale deed is nothing but a product of fraud, deception, forgery and impersonation. It is an invalid, illegal, inoperative, unenforceable and abinitio void document. With the aforesaid pleadings, the plaintiff seeks for one-third share in the suit property. 4. The defendants 1 to 3 jointly filed written statement at the first instance. They have contended in their written statement that Chinamarakkal, who was the absolute owner of the suit property sold away the same to the third defendant for discharging the mortgage debt. Chinamarakkal mortgaged her properties in S.F.No.273/1 measuring 1.9-1/2 cents and in S.F.No.752/5 measuring 1.46 acres for a sum of Rs.1500/- to the third defendant under the mortgage deed dated 09.06.1961. In order to discharge the mortgage over the entire properties, the suit property was sold to the third defendant by Chinamarakkal and her daughter, the first defendant herein under the registered sale deed dated 25.07.1966. The third defendant has been cultivating the lands raising crops therein. Infact the plaintiff himself purchased from his mother Chinamarakkal, the other field which was the subject of mortgage by virtue of the sale deed dated 16.07.1981. The sale deed dated 25.07.1966 is a genuine and valid document. The said sale deed is also binding on the vendor as well as the plaintiff. The plaintiff ought to have filed the suit within twelve years of the sale deed if he wants to declare it as void. Therefore, the suit itself is barred by limitation. With the aforesaid contention, the defendants sought for dismissal of the suit. 5. Later on, the first defendant filed a separate written statement wherein she has alleged that the written statement originally prepared in the office of the counsel engaged by the third defendant was not read over to her. Alleging that many contradictory averments and allegations have been made in the written statement filed by the third defendant, she would contend in the separate written statement filed by her that she is entitled to one-third share in the suit property. https://hcservices.ecourts.gov.in/hcservices/ 6. The trial Court having adverted to the evidence on record returned a finding that Ex.B7 sale deed dated 09.06.1961 was true and valid. As a result of which, the suit property was not available for partition and therefore, the plaintiff was not entitled to one-third share in the suit property. 7. The first appellate Court having adverted to the discrepancies found in the evidence of third defendant and the thumb impression put by the deceased Chinamarakkal in the sale deed Ex.A23 executed by her in favour of the plaintiff held that Ex.B7 which did not bear the thumb impression of the executant was not valid and binding on the plaintiff. Hence, the first appellate Court held that the suit property was available for partition and decreed the suit as prayed for. 8. While admitting the second appeal the following substantial questions of law were formulated by this Court for determination: 1. Whether the lower appellate Court is correct in holding that the suit for partition in O.S.No.874/89 is maintainable even though the suit property itself has been sold under Ex.B7 dated 25.07.1966 in favour of the appellant/third defendant. 2. Whether the lower appellate Court is correct in holding that suit is maintainable even though the first respondent/plaintiff has not challenged the validity of Ex.B7 registered sale deed dated 25.07.1966. 3. Whether the suit is barred by limitation. 9. The appellant/third defendant has filed C.M.P.No.1929 of 2009 seeking permission of this Court to raise additional substantial questions of law. 10. The learned counsel appearing for the appellant/third defendant would submit that the additional substantial questions of law sought to be formulated have a foundation in the pleadings of the parties. Therefore, the additional substantial questions of law may be formulated. It is his further submission that Section 100 of Code of Civil Procedure contemplates formulation of additional substantial questions of law also. 11. Per contra, the learned counsel appearing for the plaintiffs/respondents 2, 4 to 7 would submit that there is no specific pleading leading to such substantial questions of law before the trial Court. The trial Court also had not focussed on these questions of law as there was lack of specific pleadings. The first appellate Court had no occasion to deal with such questions https://hcservices.ecourts.gov.in/hcservices/ of law. Even in the memorandum of appeal, such substantial questions of law were not raised by the appellant nor was any foundation laid in the memorandum of appeal filed before this Court. It is his vehement submission that though this Court has ample power to formulate additional substantial questions of law, such an exercise shall be undertaken by this Court only when there is atleast some foundation in the memorandum of appeal filed by the appellant. Therefore, he would submit that the additional substantial questions of law raised belatedly without any foundation cannot be formulated or entertained by this Court. 12. The scope of Section 100 of the Code of Civil Procedure prior to the Amendment Act of 1976 and subsequent thereto was elaborately discussed in Panchugopal Barua and others Vs. Umesh Chandra Goswami and others AIR 1997 SC 1041. The Supreme Court having analysed the old provision Under Section 100 of the Code of Civil Procedure and the present provision after the amendment was introduced in 1976 has held as follows: "No pure question of law nor even a mixed question of law and fact was urged before the trial Court or the first appellate Court by the respondent. The High Court was, therefore, not justified in entertaining the second appeal on an altogether new point, neither pleaded nor canvassed in the subordinate Courts and that too by overlooking the changes brought about in Section 100, C.P.C by the Amendment Act of 1976 without even indicating that a substantial question of law was required to be resolved in the second appeal. To say the least, the approach of the High Court was not proper." Therefore, parties cannot be permitted to canvass a substantial question of law which has no foundation in the pleadings of the parties. 13. Of course, as rightly contended by the learned counsel appearing for the appellant/third defendant, this Court has ample power Under Section 100 of the Code of the Civil Procedure to formulate additional substantial questions of law even during the hearing of an appeal but the only condition is that the High Court should assign reason and afford opportunity of hearing to the parties while framing additional substantial questions of law at a subsequent stage. 14. The Hon'ble Supreme Court in U.R.Virupakshaiah Vs. Sarvamma and another 2009 (1) CTC 376 has held as follows: The instant case does not come within the purview of the aforementioned dicta. The High Court did not deal with the substantial questions of law formulated at the time of admission at all. We, therefore, are of the https://hcservices.ecourts.gov.in/hcservices/ opinion that the impugned judgment cannot be sustained. It is set aside accordingly and the matter is remitted to the High Court for consideration of the matter afresh. In the event, the High Court opines that any substantial question of law should be framed suo motu or at the instance of the appellant before it, viz., respondent herein, it shall give an opportunity of hearing to appellant. 15. The proviso to Section 100 of the Code of Civil Procedure would read that there is no abridgment of the power of the Court to hear the second appeal on any other substantial question of law which was not originally formulated by it if it is satisfied that the case involves such substantial question of law. 16. Adverting to the plaint pleadings, it is found that there is a vague reference in the plaint that an attempt was made to discharge the mortgage debt by Chinamarakkal but the third defendant preferred to squat upon the property. It has been contended that in order to discharge the mortgage over the entire properties bearing S.F.No.733/1 and S.F.No.752/5 the suit property was sold to the third defendant by Chinamarakkal. There is virtually no pleadings that the suit for partition is not at all maintainable as there was no prayer for redumption of the mortgage. 17. Coming to the other contention with respect to the disputed sale deed dated 25.07.1966, in the name of the third defendant, there is a pleading in the written statement filed by the third defendant that the plaintiff ought to have filed the suit within 12 years of the sale deed, if he wanted to declare the same as void and therefore, the suit was "barred by limitation". Again it is found that there is no specific pleading that the suit for partition without a prayer for setting aside the aforesaid sale deed dated 25.07.1966 is not maintainable. Had the maintainability of the suit on the ground that there was no prayer for redumption of the mortgage and that there was no prayer for setting aside the disputed sale deed dated 25.07.1966 was specifically pleaded by the third defendant, the plaintiff would have got an opportunity to counter the said pleadings. There is no issue framed by the trial Court as to whether the suit is maintainable or not, either on the ground that there is no prayer for setting aside the sale deed or on the ground that there is no prayer for redumption of mortgage. As rightly pointed out by the learned Senior Counsel appearing for the plaintiff there was no focus on those substantial disputed points during the course of trial of the case. It is also an admitted fact that the parties have not raked up the aforesaid issues either before the first appellate Court or before this Court at the first instance. Even in the memorandum of appeal, there was no foundation made for raising the substantial questions of law as to whether the suit was maintainable without seeking a prayer for declaration that the sale deed is null and void and whether the suit is maintainable without discharging the usufructuary mortgage in favour of the third defendant. https://hcservices.ecourts.gov.in/hcservices/ 18. Firstly, it is found that there is no foundation in the pleadings of the parties to give raise to such additional substantial questions of law. Of course, there are vague references found in the pleadings with respect to the discharge of the mortgage and the validity of the sale deed executed by Chinamarakkal in favour of the third defendant but the maintainability of the suit has not been challenged in the pleadings of the parties with reference to the above points. Secondly, the first appellate Court was also not drawn to the above disputed points for determination. Even in the memorandum of appeal, no foundation was made by the third defendant to raise such additional substantial questions of law. This Court has ample power to formulate or reformulate the substantial questions of law either suo motu or at the instance of the appellant only when there is already a foundation to formulate such substantial questions of law in the memorandum of appeal. As it is found that the memorandum of appeal has not laid any foundation to raise such substantial questions of law, the question of formulating fresh substantial question of law does not arise for consideration. Therefore, the petition in C.M.P.No.1929 of 2009 filed by the third respondent raising additional substantial questions of law stands dismissed. 19. The learned counsel appearing for the appellant/third defendant would submit that the first appellate Court completely ignored the vital document namely Ex.B3 mortgage deed which was executed by Chinamarakkal in the very same fashion as that of Ex.B7 sale deed. The minor discrepancies found in the evidence of D.W.1 had been blown out of proportion by the first appellate Court to come to a wrong decision that Ex.B7 is non-est in the eye of law. The first appellate Court simply forgot the fact that the husband of Chinamarakkal was one of the attesting witnessess to Ex.B3 mortgage deed. The first defendant also originally sailed with the third defendant and admitted the case of the third defendant but she chose to file a separate written statement later, inspite of the fact that she was one of the parties to Ex.B7 sale deed. It is his further submission that Ex.A23 dated 16.07.1981 would not determine the style of execution by Chinamarakkal. The very fact that the plaintiff chose to purchase one of the properties which was discharged in the aftermath of execution of the sale deed Ex.B7 would go to show that Ex.B7 is not a fabricated document. Mere non mutation of revenue records would not disentitle the claim of the third defendant more especially when he was admittedly in possession of the suit properties, he would further contend. 20. The learned Senior Counsel appearing for the plaintiffs/respondents 2, 4 to 7 would submit that the first appellate Court has rendered an unassailable finding of fact with respect to the void document Ex.B7. Cogent reasons were assigned by the first appellate Court to arrive at a conclusion that Ex.B7 was a void document. None of the attestors of Ex.B7 were examined to lend support to the evidence of D.W.1. Ex.A23 would go to establish that Chinamarakkal had the habit of executing documents by putting her thumb impression, whereas the disputed document Ex.B7 does not https://hcservices.ecourts.gov.in/hcservices/ bear the thumb impression of Chinamarakkal. Therefore, the decision arrived at on facts by the first appellate Court cannot be simply upset by this Court in the absence of any substantial questions of law which has arisen for determination in the second appeal. 21. Ex.B3 is a mortgage deed dated 09.06.1961 executed by Chinamarakkal in favour of the third defendant Nanjappa Gounder who is none other than the husband of the second defendant and son-in- law of said Chinamarakkal. The properties covered under Ex.B7 sale deed dated 25.07.1966 executed in favour of the third defendant Nanjappa Gounder and Ex.A23 dated 16.07.1981 executed in favour of the plaintiff were the subject properties under the usufructuary mortgage deed Ex.B3 dated 09.06.1961 executed by Chinamarakkal in favour of Nanjappa Gounder. It is to be noted that the execution of Ex.B3 by Chinamarakkal infavour of Nanjappa Gounder was not at all in dispute. The plaintiff infact referred to such usufructuary mortgage executed by Chinamarakkal in favour of the third defendant in the plaint. The grievance of the plaintiff is that the attempt made by Chinamarakkal to redeem the said mortgage property did not fructify as there was intentional non co-operation on the part of the third defendant. As rightly pointed out by the learned Senior Counsel appearing for the third defendant the first appellate Court completely lost sight of the fact that even the admitted usufructuary mortgage deed Ex.B3 dated 09.06.1961 which was attested by none other than the husband of Chinamarakkal bears only the line put by Chinamarakkal signifying her execution and not her thumb impression. The very same modus operandi was adhered to by Chinamarakkal while executing Ex.B7 in favour of the third defendant. 22. It is not as if the sale deed Ex.B7 does not bear the thumb impression of Chinamarakkal. Though Chinamarakkal had drawn a line indicating her execution she chose to put her left thumb impression admitting the execution before the Sub-Registrar. The official Act performed by the Sub-Registrar is presumed to have been performed by him in the usual course of official duty. The Court cannot throw any doubt on the performance of the official duty of the Sub-Registrar. The first defendant also is found to be one of the parties under Ex.B7. The Court takes note of the fact that the first defendant having thoroughly sailed with the third defendant at the first instance chose to file a separate written statement claiming one-third share in the suit property disowning her original statement filed along with the third defendant as though she was duped originally. The document which came into existence on 25.07.1966 was not at all put to challenge by any of the family members of the Chinamarakkal till the present suit was filed by the plaintiff claiming one-third share in the suit property. Very surprisingly it is found that he had chosen to purchase the other property which was discharged by Chinamarakkal. The plaintiff who would unambiguously admit the existence of the usufructuary mortgage executed by Chinamarakkal in favour of Nanjappa Gounder never whispered anything in the plaint as to the discharge of the mortgage pertaining to the property purchased by him from Chinamarakkal under Ex.A23. Unless the mortgage created https://hcservices.ecourts.gov.in/hcservices/ over the property covered under Ex.A23 had been discharged by Chinamarakkal, the plaintiff would not have ventured to purchase the said property free from Encumbrance under Ex.A23. 23. The endorsement dated 25.07.1966 releasing the mortgage created with respect to the property covered under Ex.A23 synchronizes with the execution of sale deed Ex.B7 dated 25.07.1966. In Ex.B7 it has been averred that the sale deed was executed by Chinamarakkal only for the discharge of mortgage of Rs.1500/- due and payable by Chinamarakkal. As one of the properties covered under Ex.B3 was sold away by Chinamarakkal under Ex.B7 to discharge the mortgage debt of Rs.1,500/-, the aforesaid endorsement has been made by Nanjappa Gounder, the third defendant herein, releasing the mortgage executed by Chinamarakkal with respect to the other property covered under Ex.B3. 24. D.W.1 and D.W.2 have been examined in the year 1993 to speak about the document which came into existence in the year 1966. In fact they were examined after a lapse of 27 years from the date of execution of Ex.B7. Minor discrepancies in their evidence are bound to occur on account of the lapse of 27 years. In fact the first appellate Court without adverting to the inherent evidence found in Exs.B3 and B7 gave much weight to the minor discrepancies in the oral evidence of D.W.1 and D.W.2 25. It is the case of the defendant that the witnesses to Ex.B7 had passed away. Of course, there was an attempt made by the first defendant before the first appellate Court to examine one of the witnesses to sale deed Ex.B7. The third defendant resisted the said application on the very same ground that none of the witnesses to Ex.B7 was alive. Very strangely the first appellate Court without disposing of the said application on the merit of the matter simply recorded in the Judgment pronounced by it that the necessity to decide the said application on merit did not arise. In view of the above the stand taken by the third defendant that the witnesses to Ex.B7 were not alive cannot be ignored. D.W.2, a witness who accompanied D.W.1 at the time of execution of Ex.B7 to the Registrar office has spoken to the execution of Ex.B7 by Chinamarakkal. There is no reason to reject the evidence of D.W.2 on the ground that there are minor discrepancies found in his evidence. 26. True it is that Ex.A23 was executed by Chinamarakkal in the year 1981 in favour of the plaintiff by putting her thumb impression in the said sale deed. Considering the fact that Chinamarakkal chose to execute not only the disputed document Ex.B7 but also the admitted document Ex.B3 by just drawing a line to signify her execution, I find that she had drawn line signifying the execution and put her thumb impression to signify her execution only as per the guidance of the scriber. At any rate, the fact remains that she had cultivated the habit of executing documents not only by drawing a line but also by putting her thumb impression to signify her execution. Therefore, the mode of execution adopted by Chinamarakkal under Ex.A23 would not per se falsify the https://hcservices.ecourts.gov.in/hcservices/ execution of Ex.B7. 27. It is found that Chinamarakkal was alive till the year 1982. Never had she challenged the endorsement as to the discharge made by her by executing the sale deed Ex.B7 and the very execution of Ex.B7 in favour of the plaintiff. Had not the usufructuary mortgage executed by her in favour of the third defendant discharged with respect to the property covered under Ex.A23, she would have atleast referred therein the existence of usufructuary mortgage with respect to the suit property in favour of the third defendant. It is true that the third defendant failed to change the revenue records in his name. It is pertinent to note that by virtue of the usufructuary mortgage Ex.B3 the third defendant was put in possession way back in the year 1961 itself. There is no dispute to the fact that he has been in possession and enjoyment of the property covered under Ex.B7. 28. It is found that the Chinamarakkal in her own style executed Ex.B7 in favour of the third defendant. The plaintiff having completely supressed the discharge made by Chinamarakkal by executing a sale deed under Ex.B7 has come to the Court as though the suit property was very much available for partition. The first defendant who originally supported the cause of the third defendant for reasons best known chose to support the case of the plaintiff later. When the sale deed is found to be valid and binding on the plaintiff and other legal heirs of Chinamarakkal, the non mutation of revenue records in the name of the third defendant would not falsify his claim made under Exs.B3 and B7. The third defendant had got patta for the suit property under Ex.B9 though the other revenue records stand in the name of original owner Chinamarakkal. 29. It is found that the first appellate Court has virtually recorded the perverse finding without adverting to the telling materials available on record to establish that the third defendant is the owner of the