IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:16.. 04.. 2009 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.Nos.1668 & 1669 of 2008 and M.P.No.1 of 2008 M.B.Subramaniam ... Appellant in both the second appeals vs. 1. A.Ramasamy Gounder ... 1st Respondent in both the second appeals 2.A.Subbian 3.S.Rathinam 4.S.Rajkumar 5.S.Sasikumar ... Respondents 2 to 5 in SA.No.1669 of 2008 (respondents 3 to 5 are the legal heirs of the deceased Shanmugham the 4th defendant in O.S.No.14 of 2000) These second appeals have been focussed as against the common judgement and decrees dated 23.6.2008 passed by the Subordinate Court, Tiruppur, in A.S.Nos.6 and 7 of 2007, confirming the common judgment and decrees dated 8.12.2006 passed by the District Munsif cum Magistrate Court, Palladam, in O.S.Nos.410 of 2004 and 14 of 2000, respectively. For Appellant : M/s.T.V.Ramanujam Sr.counsel for T.V.Krishnamachari For Respondent : M/s.T.R.Mani,Sr.counsel for Mr.C.R.Prasanan COMMON JUDGMENT The appellant in both the second appeals, namely, M.B.Subramaniam, as plaintiff, filed the suit O.S.No.14 of 2000 as against the first respondent herein and his father and others, seeking the following relief: https://hcservices.ecourts.gov.in/hcservices/ "to grant permanent injunction restraining the defendants, their men, servants, agents, relatives and every one claiming under them in any way interfering with the peaceful possession and enjoyment of the plaintiff's suit properties". The first respondent in both the appeals, namely, Ramasamy Gounder, filed the suit O.S.No.410 of 2004 (O.S.No.653 of 2003) as against the appellant herein, seeking the following relief: "a) to direct the defendant to deliver possession of the suit property; b) to direct the defendant to pay Rs.68,000/- with future interest at 6% p.a. from the date of suit till realization." As such, both the suits were tried together by the lower Court, by conducting joint trial and pronounced the common judgment and decrees. (b) In both the suits, the defendants concerned resisted the suit. During such joint trial, the said M.B.Subramaniam examined himself as P.W.1 apart from examining one Ramaswamy as P.W.2 and Balasubramaniam as P.W.3 and Exs.A1 to A19 were marked on his side. The said Ramasamy Gounder examined himself as D.W.1 apart from examining N.Subramaniam as D.W.2 and P.Subramaniam as D.W.3 and and Ex.B1 to Ex.B6 were marked on his side. (c) Ultimately the trial Court dismissed the suit O.S.No.14 of 2000 filed for permanent injunction by M.B.Subramaniam-the appellant in both the second appeals and decreed the suit O.S.No.410 of 2004 filed by Ramaswamy Gounder- the respondent in both the second appeals. (d) Being dissatisfied with the said common judgments and decrees, A.S.Nos.6 and 7 of 2007 were filed by the appellant (M.B.Subramaniam) for nothing but to be dismissed by the first appellate Court confirming the common judgment and decrees of the lower Court. 2. Being unhinged and disconcerted by the said common judgment and decrees, these second appeals have been filed by M.B.Subramaniam on various grounds. 3. After hearing for some time the arguments on both sides, this Court felt that with the consent of both sides, both these matters could be disposed of finally by framing the following substantial questions of law. https://hcservices.ecourts.gov.in/hcservices/ 1. Whether Arunachala Gounder had the unilateral right to cancel Ex.A6 by virtue of Ex.B3 without filing a suit for cancelling Ex.A6? 2. Whether Ex.A6 is a void document as put forth by the respondent-Ramasamy Gounder? 3. Whether both the Courts below were perverse in appreciating the evidence and giving a finding in favour of Ramasamy Gounder-the respondent? 4. Whether the suit filed by M.B.Subramaniam is bad for want of prayer for declaration of title?" Heard both sides on these substantial questions of law. Gamut of the case: 4. A deep analysis of and poring over the typed set of papers, including the judgments of both the Courts below, would demonstrate and display that M.B.Subramanian-the plaintiff in O.S.No.14 of 2000 and defendant in O.S.No.410 of 2004 (hereinafter referred to as the appellant in both the second appeals) filed the suit O.S.No.14 of 2000 for bare injunction, so as to safe-guard his possession as against the deceased Arunachala Gounder and his three sons, namely, Ramaswamy Gounder, Subbiyan and Shanmugam - on the death of Arunachala Gounder, his wife Karupathal also was added - on the ground that as per Ex.A6-the sale deed dated 10.11.1999, the deceased Arunachala Gounder sold, in favour of the appellant, the suit property and he has been continuing in possession of the same and the fact also remains that previous to such purchase he had been in possession and enjoyment of the suit property as a tenant under Arunachala Gounder. 5. Whereas, Ramaswamy Gounder(hereinafter referred as the respondent in both the appeals) filed the suit O.S.No.410 of 2004, seeking recovery of possession on the ground that the tenancy of M.B.Subramaniam was terminated relating to the suit property and that Ramasamy Gounder being the absolute owner of the suit property by virtue of the Settlement Deed-Ex.B1 dated 12.3.2000, which was executed by Arunachala Gounder. Significant submissions of learned Advocates on both sides: 6. The gist and kernal, the nitty-gritty of the arguments of the learned Senior counsel for the appellant would be to the effect that Ex.A6 being a registered sale deed, admittedly executed by the deceased Arunachala Gounder, should not have been cancelled by him unilaterally by executing Ex.B3, without filing a suit, during his life time, for cancellation of Ex.A6; if at all Arunachala Gounder wanted to cancel the said sale https://hcservices.ecourts.gov.in/hcservices/ deed on the grounds alleged by the respondent herein, then he should have filed such a suit within three years, but he had not chosen to do so; as per the respondent’s plea, had there been no consideration paid by the vendor to the vendee under Ex.A6, the vendor Arunachala Gounder should have filed a suit for recovery of sale consideration in view of the fact that as per Ex.A6 the title over the suit property passed from Arunachala Gounder to the appellant; Ex.A6, by no stretch of imagination, could be termed as a void document and both the Courts below were perverse in appreciating the evidence, which warrants interference by this Court. 7. By way of remonstrating and refuting the arguments of the learned Senior counsel for the appellant, the leaned Senior counsel for the respondent advanced his arguments, the pith and marrow, the quintessence and core of it would be to the effect that Ex.A6 was a void document, requiring no filing of suit, at the instance of Arunachala Gounder, to get it cancelled or set aside as per law; he had the right to cancel Ex.A6 by virtue of Ex.B3-the registered cancellation deed, without filing a suit and execute Ex.B1-the settlement deed in favour of his son-Ramaswamy Gounder-the respondent; both the Courts below gave a categorical finding to the effect that Ex.A6 contains bogus consideration; even without executing Ex.B3-the registered cancellation deed, Arunachala Gounder had the right to execute Ex.B1-the Settlement Deed; the suit filed by the appellant for injunction is bad for want of a prayer for declaration of title and accordingly, he prayed for dismissal of both the second appeals. 8. Since all the four substantial questions of law are interlinked and interwoven, interconnected and entwined with each other, they have been taken up together for discussion. 9. Indubitably and indisputably, Ex.A6 is a registered sale deed, which contains the recitals to the effect that the said Arunachala Gounder sold the suit property in favour of the appellant for a total sale consideration of Rs.2,00,000/- (Rupees two lakhs). The said two lakhs of sale consideration is found detailed in the sale deed as under:- "(1) The purchaser (M.B.Subramanian) paid a sum of Rs.1,00,000/-(Rupees one lakh) to K.Ramaswamy (P.W.2) in connection with the loan availed by Arunachala Gounder from P.W.2 to meet his medical expenses. (2) The purchaser (M.B.Subramanian) paid a sum of Rs.50,000/-(Rupees fifty thousand) to Balasubramanian (P.W.3) for and on behalf of https://hcservices.ecourts.gov.in/hcservices/ Arunachala Gounder-the vendor by way of discharging the dues payable by the vendor. (3) the seller received a sum of Rs.50,000/- (Rupees fifty thousand only) in cash in the presence of the witnesses as contemplated in Ex.A6. 10. The learned Senior counsel for the respondent would contend that all the said three considerations as found set out in Ex.A6 are bogus ones; the appellant, with the help of Arunachala Gounder’s son-Shanmugam (D4) in O.S.No.14 of 2000 managed to bring about Ex.A6; the said P.W.2 and P.W.3 are the close relatives of D.4-Shanmugam and as such, both the debts were not proved and consequently, the discharge of those alleged deeds also were not proved and D4 shunned the witness box even though the recitals in Ex.A6 would be to the effect that in the presence of D4 and one other person, the alleged cash of Rs.50,000/- was paid by the appellant to the father of the respondent, namely, Arunachala Gounder. Accordingly, the learned Senior counsel for the respondent would argue that both the Courts below correctly held that Ex.A6 was not supported by the consideration and the consideration found stated therein were bogus and in such a case, the voidity of Ex.A6 warranted no compulsion on the part of Arunachala Gounder to file a suit for declaring its voidity or for canceling it. 11. Whereas the learned Senior counsel for the appellant would argue that absolutely there is no shard or shred, scintilla or pint-sized, iota or miniscule extent of evidence to demonstrate and evince that Ex.A6 is a void document. He would cite the following decisions in support of his arguments: (i) JT 1995(1) SCC 223- Smt Ramti Devi v. Union of India, an excerpt from it would run thus: "Held – We are afraid that we cannot agree with the learned counsel. As seen, the recitals of the documents would show that the sale deed was executed for valuable consideration to discharge pre-existing debts and it is a registered document. Apart from the prohibition under S.92 of the Indian Evidence Act to adduce oral evidence to contradict the terms of the recitals therein, no issue in this behalf on the voidity of the sale-deed or its binding nature was raised nor a finding recorded that the sale-deed is void under S.23 of the Contract Act. Pleading itself is not sufficient. Since the appellant is seeking to have the document avoided or cancelled, necessarily, a declaration has to be given by the Court in that behalf. Until the document is avoided or cancelled by proper declaration, the duly registered document https://hcservices.ecourts.gov.in/hcservices/ remains valid and binds the parties. So the suit necessarily has to be laid within three years from the date when the cause of action had occurred. Since the cause of action has arisen on January 29, 1947, the date on which the sale-deed was executed and registered and the suit was filed on July 30, 1966, the suit his hopelessly barred by limitation." (ii) (1998) 7 SCC 498 – Bishundo Narain Rai (dead) by Lrs. And others vs. Anmol Devi and Others, certain excerpts from it would run thus: "11. Apropos the question noted above, a reference to Section 54 of the Transfer of Property Act will be apposite. While defining 'sale', Section 54 sets out how sale is made. Sale is defined to mean a transfer of ownership in exchange for price paid or promised or part-paid or part-promised; it says, inter alia, in case of tangible immovable property of the value of Rs.100 and upward or in case of a reversion or other tangible things, sale can be made only by a registered instrument. Section 8 of the Transfer of Property Act declares that on a transfer of property, all the interests which the transferor has or is having at that time, capable of passing in the property and in the legal incidence thereof, pass on such a transfer unless a different intention is expressed or necessarily implied. A combined reading of Section 8 and Section 54 of the Transfer of Property Act suggests that though on execution and registration of a sale deed, the ownership and all interests in the property pass to the transferee, yet that would be on the terms and conditions embodied in the deed indicating the intention of the parties. It follows that on execution and registration of a sale deed, the ownership title and all interests in the property pass to the purchaser unless a different intention is either expressed or necessarily implied which was to be proved by the party asserting that title has not passed on registration of the sale deed. Such intention can be gathered by intrinsic evidence, namely, from the averments in the sale deed itself or by other attending circumstances subject, of course, to the provisions of Section 92 of the Evidence Act, 1872. 14. These averments unmistakably indicate conveying of title to the property absolutely for consideration as outlined; by virtue of the sale, the purchasers https://hcservices.ecourts.gov.in/hcservices/ were put in possession of the property conveyed, became entitled to the custody of the sale deed and other documents and enjoyment of the property. These factors satisfy all the requirements of absolute sale. No recital in Exhibit C is brought to our notice to indicate any contraintention. What is, however, argued is that out of the consideration, a sum of Rs 3235 remained unpaid; that the mortgage loan under “Sudhbharna Bond dated 29-7-1946” was not discharged and that the registration receipt was retained by the vendors so it is manifest that the intention of the parties was that the title would not pass to the purchaser on execution and registration of Exhibit C. We are not impressed by this submission. It appears that in the State of Bihar, a practice is prevalent that when the whole or part of a sale consideration is due or any other obligation is undertaken by the vendee, then on execution and registration of the sale deed by the vendor, title to the property, the subject-matter of the sale, does not pass “ta khubzul badlain”, that is, until there is “exchange of equivalent” and in such a case registration receipt is retained by the vendor, which on payment of consideration due or on fulfilment of the obligation by the vendee is endorsed in his favour or if the sale deed has already been received by the vendor, then the sale deed is delivered to the vendee. Even so, this only shows that such agreements are common in that part of the country but it is essentially a matter of intention of the parties which has to be gathered from the document itself but if the document is ambiguous, then from the attending circumstances, subject to the provisions of Section 92 of the Evidence Act. 15. We have already referred to the findings of the courts below. Although the trial court found that Rs 3000, a part of the consideration, was not paid, the High Court relying upon the receipt, Exhibit 6, held that it was paid on 5-5-1963, as claimed by the first purchasers; the balance of consideration of Rs 235 was admittedly deposited by the first purchasers in court. Thus, the entire consideration was paid by the first purchasers. Further, the High Court expressed the view that not depositing the Sudhbharna Bond amount of Rs 6249 in court would be fatal to the case of the first purchasers. That view is contrary to the judgment of a Division Bench of https://hcservices.ecourts.gov.in/hcservices/ the Patna High Court in Shiva Narayan Sah v. Baidya Nath Prasad Tiwary1. We are in agreement with the opinion of the Patna High Court in Shiva Narayan Sah case1 that depositing the mortgage amount in court is one of the three ways available to the mortgagor before filing a redemption suit and that he was free to choose any mode; non-deposit of the mortgage money was not fatal to the suit. Further, as the first purchasers had deposited that amount in terms of the decree of the trial court, this point is not available to the vendors. Therefore, on that ground, it cannot be said that that part of the consideration was not paid. In any event, as sale of suit property under Exhibit C was subject to mortgage, it was for the vendee to discharge the mortgage debt so any default or delay in payment of the said amount cannot be construed as non-payment of consideration. On construction of Exhibit C, we find that the recitals thereof are unambiguous and that the parties have expressed no intention that unless the Sudhbharna Bond amount is paid, the title to the suit property will not pass to the vendee. The only ground that remains is non-delivery of the registration receipt by the vendors to the first purchasers which appears to be due to subsequent developments, namely, execution of Exhibit H and Exhibit C/1, so it cannot be said to indicate an intention which interdicts passing of title to the first purchasers under Exhibit C. We may observe that it was not open to the vendors to unilaterally cancel Exhibit C by executing Exhibit H. The trial court on interpretation of Exhibit C came to the conclusion, in our view rightly, that (1) title to the suit property passed on to the first purchasers on execution and registration of Exhibit C, but the High Court reversed that finding for reasons which, as pointed out by us, are unsustainable. (iii) A.I.R.1920 Madras 164 – Yella Krishnamma vs.Kotipalle Mali (iv)1999(3) L.W.162 – Raveedran Nair v. Thankam (v) 1998(3) MLJ 372 – Chellappa Gounder (died) and others v. Ramasami Gounder alias Karuppa Gounder (died) and others; A bare perusal of those judgments would highlight and spotlight the legal position that a vendor of a sale deed cannot simply, throwing to winds Section 92 of the Indian Evidence Act, treat the sale deed as a void one. https://hcservices.ecourts.gov.in/hcservices/ 12. At this juncture, I call up and recollect the following decision also: (2003) 6 SCC 595 [Roop Kumar v. Mohan Thedani], an excerpt from it would run thus: "17. It is likewise a general and most inflexible rule that wherever written instruments are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence." 13. I would also like to extract hereunder Section 92 of the Indian Evidence Act. "92.Exclusion of evidence of oral agreement – When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives gin interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. Proviso(1) – Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law." 14. A plain reading of the above would evince and evidence, express and expatiate that any document required to be reduced in writing, so to say including a sale deed, is having the sanctity of its own and parties cannot be allowed to plead anything contrary to the terms and conditions contained therein. However, under the five provisos to Section 92 of the Indian Evidence Act, the interested parties concerned are permitted to adduce evidence to the contrary and it has to be https://hcservices.ecourts.gov.in/hcservices/ seen as to whether in this case, the first proviso to Section 92 of the Indian Evidence Act is attracted. As such the onus of proof as well as onus probandi is on the respondent to prove that the recitals contained in Ex.A6 are way are bogus ones. But a plain reading of the plaint in O.S.No.410 of 2004 filed by Ramasamy Gounder-the respondent is bereft of any averments constituting his pleadings, capable of attracting the first proviso to Section 92 of the Indian Evidence Act. 15. As such, if Ramasamy Gounder wanted to invoke the proviso (1) to Section 92 of the Indian Evidence Act, he should have pleaded in his plaint specifically about want of consideration in Ex.A6. The plaint in O.S.No.410 of 2004 comprised of 14 paragraphs, but in none of the paragraphs there is any whisper at least that Ex.A6 is a void document, in view of the total absence of consideration. 16. The learned Senior counsel for the respondent would refer to Section 25 of the Contract Act and the following decisions to highlight the point that any contract not supported by consideration is void. (i) 1998(1) CTC 443 – Sri Tarsem Singh vs. Sri Sukhminder Singh; (ii) 2007(4) CTC 186 – Andritz Qy.rep. through Power of Attorney Agent, Mr.Siraj Ahmad, New Delhi vs. Enmas Engineering Pvt.Ltd., rep.by its Director and Principal Officer, Chennai and another; (iii) AIR 1966 SC 193 – Chidambara Iyer and others vs. P.S.Renga Iyer and others. 17. The Apex Court's judgment reported in 1998 (1) CTC 443-Sri Tarsem Singh vs. Sri Sukhminder Singh, cited supra emerged relating to a different set of facts from the one involved in this case. In the said decision agreement to sell alone was contemplated and in that connection, the Honourable Apex Court highlighted as to what are all void documents and that if documents are not supported by consideration, it would be void. Such a proposition is quite explicit and there could be no second thought over it. 18. The decision of the Honourable Apex Court reported in AIR 1966 SC 193-Chidambara Iyer and others vs. P.S.Renga Iyer and others defines what is consideration and valuable consideration and how it is essential for a contract and as such, there could be no quarrel over such a proposition. 19. The decision of this Court reported in 2007(4) CTC 186- Andritz Qy.rep. through Power of Attorney Agent, Mr.Siraj Ahmad, New Delhi vs. Enmas Engineering Pvt.Ltd., rep.by its https://hcservices.ecourts.gov.in/hcservices/ Director and Principal Officer, Chennai and another also highlights that absence of consideration would lead to voidity of a contract and such a verdict is based on well settled legal position. 20. Absolutely there could be no quarrel over such propositions of law found enunciated in these decisions. But here Section 25 of the Contract Act and the decisions, which the learned Senior counsel for the respondent cited on his side cannot directly be applied out of context in view of the fact that absolutely there is no pleading at all to show that Ex.A6 is a void document. The suit O.S.No.410 of 2004 filed by the respondent-Ramasamy Gounder is only for obtaining delivery of possession of the suit property on the alleged ground that termination notice was sent to the appellant herein terminating the tenancy relating to the suit property and that he also committed default in paying rents. As has been highlighted by me supra, the onus of proof is on the respondent-Ramasamy Gounder to show that Ex.A6-the registered sale deed, executed by Arunachala Gounder, is a void one and that he had unilateral right to execute Ex.B3 by way of cancelling Ex.A6 and consequently to execute Ex.B1. There is absolutely no prayer for declaration of respondent's/Ramasamy Gounder's title to the suit property. 21. It is a trite proposition of law that any amount of evidence, without pleadings should be eschewed. Here the respondent/Ramasamy Gounder, despite knowing the existence of Ex.A6, simply had chosen to file the