IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 20.9.2010 Coram: THE HONOURABLE MR.JUSTICE M.JAICHANDREN S.A.No.1052 of 2009 1. Nagammal 2. R.Ravichandran 3. R.Shanmugasundaram 4. R.Prakash .. Appellants/Defendants 11 to 14 vs. 1. K.Thangavel 2. Sree Kaliappan Trust rep. through its Trustee K.Thangavelu 3. D.Radha 4. Koundammal 5. N.Veerammal 6. R.Nanjappan 7. Pankajam Respondents/Plaintiffs 8. A.Jayapal 9. A.Shanmugam A.Duraisamy (died) 10.A.Balakrishnan @ Balu 11.A.Saraswathi 12.A.Shantamani 13.A.Kanagamani 14.A.Nirmaladevi 15.A.Annapoorani Respondents/Defendants 1 to 10 16.Gandhimadhi 17.Jayalakshmi 18.Karthik .. Respondents/Defendants 15 to 17 The Second Appeal has been filed against the judgment and decree, dated 31.7.2009, made in A.S.No.107 of 2007, on the file of the 1st Additional Subordinate Court, Coimbatore, confirming the judgment and decree, dated 30.10.2006, made in O.S.No.3987 of 2004, on the file of the II Additional District Munsif Court, Coimbatore. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.T.R.Rajagopalan Senior Advocate for Mr.T.R.Rajaraman For Respondents : Mr.N.Chandraraj for 1 to 6 M/s.Raj & Raj Associates J U D G E M E N T This second appeal has been filed against the judgment and decree, dated 31.7.2009, made in A.S.No.107 of 2007, on the file of the 1st Additional Subordinate Court, Coimbatore, confirming the judgment and decree, dated 30.10.2006, made in O.S.No.3987 of 2004, on the file of the II Additional District Munsif Court, Coimbatore. 2. The defendants 11 to 14 in the suit, in O.S.No.3987 of 2004, are the appellants in the present second appeal. The plaintiffs in the said suit are the respondents herein. The suit, in O.S.No.3987 of 2004, had been filed, praying for a decree of declaration, declaring that the sale deeds, under document Nos.1365 of 1998 and 1367 of 1998, made in favour of the defendants 11 to 14 are fraudulent, invalid and not binding on the plaintiffs, and for a further declaration that the plaintiffs 2, 3 and 6 are the absolute owners of the suit property mentioned under schedules I to III, and for a consequential permanent injunction restraining the defendants 11 to 14 from interfering with the peaceful possession and enjoyment of the properties, by the plaintiffs 2, 5 and 6, and for costs. 3. It has been stated that the property, morefully described in the schedules I to III of the plaint had, originally, belonged to one Arumuga Asari, son of Karuppanna Asari, under a registered sale deed, dated 11.4.1960, under document No.4564 of 1960. Arumuga Asari had executed an agreement for sale in favour of the first plaintiff, K.Thangavelu, on 17.8.1990, in respect of the agricultural land, with an extent of 6.46 acres, agreeing for the price at the rate of Rs.50,000/- per acre, and having a received a sum of Rs.20,000/-, as advance, on the said date. Arumuga Asari had also received various amounts of money, on different dates, between 23.11.1990 and 24.4.1992, and had made endorsements on the various dates, on the back of the original agreement for sale. 4. It had also been stated that Arumuga Asari had also executed a general power of attorney in favour of the first plaintiff, authorising him to deal with the said land, as per the terms and conditions mentioned therein. The said document had been registered, https://hcservices.ecourts.gov.in/hcservices/ on 24.4.1992, as document No.146 of 1992, in book IV. 5. It had also been stated that, on 24.4.1992, Arumuga Asari and his sons and daughters, who are the defendants 1 to 10 in the suit, had also executed a confirmation letter, confirming the agreement for sale executed by Arumuga Asari and the receipt of the entire sale consideration of Rs.3,23,000/-. They had also agreed not to revoke the general power of attorney executed in favour of the first plaintiff. The said defendants, along with Arumuga Asari, had handed over the possession of the lands in question, pursuant to the earlier agreement for sale. They had also handed over the original title deed, dated 11.4.1960 and other related documents, like, Patta, passbook, kist receipts, Chitta and adangal etc. Thus, the agreement for sale and the general power of attorney had become irrevocable, as it was coupled with interest. The defendants 1 to 10 and the said Arumuga Asari had received the entire sale price. 6. It had also been stated that the trust had come into existence in the name of Sree.Kaliappa Trust. The plaintiffs 1, 3 and 4 are the trustees of the 2nd plaintiff trust. The trust deed had been registered, as document No.41 of 1992. The first plaintiff, as the power of attorney, had executed a settlement deed in favour of Sree. Kaliappa Trust, in respect of 5 acres of land mentioned in schedule I. The settlement deed had been registered as document No.5159 of 1993, and the possession of the land had also been delivered to the said trust. 7. It has been further stated that two other sale deeds had also been executed by the first plaintiff, in respect of schedule II and schedule III mentioned properties, in favour of the plaintiffs 5 and 6, under document Nos.1604 of 1997 and 1605 of 1997, respectively. The purchasers are in actual possession and enjoyment of the said land. 8. It had also been stated that the first plaintiff, after the agreement for sale and after taking possession of the property in question, mentioned in the suit schedule, had leveled the land, closed the pits and removed the big stones from the said lands at heavy costs. Likewise, the 2nd plaintiff trust, after the settlement made in its favour, and after taking possession of the said land, had put up sheds and had also sunk a borewell at a huge cost. It had also applied for electricity power connection to the Tamil Nadu Electricity Board, to irrigate its agricultural lands and had deposited the amount of Rs.10,000/-. The 2nd plaintiff had also been paying the annual minimum charges of Rs.2,500/-, every half yearly. The 2nd plaintiff had also applied for approval from the central Government and the Bharathiyar University, to start a Dental and Arts and Science college in a portion of land, in item No.1 of the suit schedule. https://hcservices.ecourts.gov.in/hcservices/ 9. It had also been stated that the Tamil Nadu Housing Board had also proposed to acquire the land mentioned in the plaint along with certain other lands and they had issued notices under Sections 4(1) and 5(A) of the Land Acquisition Act. The plaintiffs 1 and 2 had filed the writ petitions in the High Court of judicature, at Madras, in W.P.Nos.17239 of 1997 and 17240 of 1997, for quashing the order issued by the Government, in view of the acquisition proceedings. The High Court had directed the 2nd plaintiff to approach the State Government for exclusion of its land, for starting the Dental College and the Arts and Science college. Accordingly, the 2nd plaintiff had applied to the State Government for exemption of its lands, for the purpose of starting the educational institutions. The 2nd plaintiff had been paying the land kists and other taxes and is also in actual physical possession and enjoyment of the lands mentioned in the suit schedules, in its own right. Similarly, the plaintiffs 5 and 6 are also in possession of the land purchased by them, from the 1st plaintiff. 10. It had also been stated that the plaintiffs had come to know that the defendants 1 to 10, as legal heirs of Arumuga Asari, had, fraudulently and in a collusive manner, had executed a sale deed, on 12.6.1998, in document Nos.1366 of 1998 and 1367 of 1998, in favour of the defendants 11 and 12 and also in favour of the defendants 13 and 14, respectively, in respect of the suit schedule lands. The plaintiffs had no knowledge about the death of Arumuga Asari till they came to know about it, after the execution of the sale deeds, by the defendants 1 to 10, in favour of the defendants 11 to 14. The sale deeds executed by the defendants 1 to 10, in favour of the defendants 11 to 14, are fraudulent, invalid and not binding on the plaintiffs. The defendants 11 to 14 did not derive any right, title or ownership, by way of the said sale deeds, and they were not given physical possession of the landed property. 11. It had also been stated that the defendants 1 to 10 and 11 to 14 had acted hand-in-glove with each other, in causing loss to the plaintiffs. The defendants 11 to 14 are not the bona fide purchasers, for a valid consideration. The plaintiffs are entitled to the declaration for the lands in suit schedules I to III belonging to the plaintiffs 2, 5 and 6, respectively. The plaintiffs are also entitled to a declaration that the sale in favour of the defendants 11 to 14 are fraudulent, collusive and not binding on the plaintiffs, and for a consequential injunction restraining the defendants 11 to 14 from interfering with the plaintiffs' peaceful possession and enjoyment of the properties in question. https://hcservices.ecourts.gov.in/hcservices/ 12. In the written statement filed by the defendants 1 to 6 and 8 to 10, the averments and allegations made in the plaint had been denied. The allegation that Arumuga Asari had executed an agreement for sale, in respect of the suit properties, on 17.8.1990, and had received a sum of Rs.20,000/- as advance, had been specifically denied. Further, the allegation that Arumuga Asari had received various sums of money on different dates and had made endorsements in the said agreement, is false. The said documents are forged and fraudulent documents. Even a cursory look at the documents would clearly reveal that all the signatures in the alleged agreement of sale are forged and fabricated. The claim of the plaintiffs that Arumuga Asari had executed a power of attorney, on 24.4.1992, and the issuance of the confirmation letter, dated 24.4.1992, had also been denied. 13. It had also been stated that Arumuga Asari had died, on 25.7.1993, intestate. After his death, his wife Pankajam and and his sons and daughters had sold the property to Nagammal, Ravichandran, Shanmugasundaram and Prakash, under three sale deeds, and had also delivered to them the possession of the property. Thereafter, Duraisamy, the fourth defendant had died. 14. It had also been stated that the alleged power of attorney had become inoperative, on 25.7.1993, on the death of Arumuga Asari. The document created, on 25.7.1993, and on the subsequent dates, had become unsustainable and inoperative, as the first respondent Thangavel has no right, title or interest in the property in question. Hence, there is no cause of action for the suit and therefore, the suit filed by the plaintiffs is liable to be rejected. In fact, the first defendant had suppressed the death of Arumuga Asari and had fraudulently created a trust, appointing himself as a trustee, to take away the entire suit property, by fraudulent means. 15. It had been stated that the defendants 1 to 6 and 8 to 10 had sold the properties to defendants 11 to 14, after the receipt of the sale price amount and had also delivered the possession of the suit properties in question. In such circumstances, the suit filed by the plaintiffs is liable to be dismissed, in limine, with costs. 16. In the written statement filed on behalf of the defendants 11 to 14, it has been stated that the suit filed by the plaintiffs is false, frivolous, vexatious and not maintainable, both in law and on the facts of the case. The averments and allegations made in the plaint had been denied, as false and unsustainable. The claim made by the plaintiffs that Arumuga Asari had entered into an agreement for sale and had also made various endorsements on different dates, by receiving various amounts, is incorrect and false. https://hcservices.ecourts.gov.in/hcservices/ 17. It had also been stated that Arumuga Asari had not executed a power of attorney in favour of the first plaintiff. Further, the alleged power of attorney is invalid and inoperative. Further, the claim that, on 24.4.1992, Arumuga Asari, along with the defendants 1 to 10, had executed a confirmation letter, confirming the agreement of sale, on receipt of the entire sale price of Rs.3,23,000/-, is denied as false. The said document is a forged one. 18. It has been further stated that in the normal course, if an owner of the property had entered into an agreement of sale and had received the entire sale price, no confirmation letter, confirming the agreement of sale and the receipt of the entire sale price, by the owners of the lands and his sons and his daughters, is necessary. The act of issuing of a confirmation letter would, by itself, be sufficient to show the false nature of the transaction. The claim that they had agreed not to revoke the general power of attorney is false and unsustainable. 19. It has been further stated that the property had never been handed over to the first plaintiff. The first plaintiff and the other plaintiffs are not in possession of the suit properties. The original title deed and the other documents had not been handed over to the first plaintiff, as alleged in the plaint. The allegation that the agreement for sale and the general power of attorney had become irrevocable, since, it is coupled with interest, is neither true nor sustainable in the eye of law. The allegation that Arumuga Asari and the defendants 1 to 10 had received the entire sale price is false, incorrect and unsustainable. The allegation that the first plaintiff had taken possession of the properties in question, in part performance of the agreement for sale, is neither true nor valid. In fact, it is the defendants 11 to 14, who have been in possession and enjoyment of the properties, as their true and legal owners. The alleged trust deed is also a concocted document. The plaintiffs had suppressed the fact that Arumuga Asari had died, on 25.7.1993. 20. It has been further stated that the claim that the first plaintiff, as the power of attorney agent, had executed a settlement deed in favour of the 2nd plaintiff, in respect of the suit schedule property, is unsustainable and invalid in the eye of law. The allegation that the possession of the land had also been delivered to the second respondent, is neither true nor correct. In fact, the settlement deed had been executed only after the death of Arumuga Asari. The settlement deed had been presented before the Sub Registrar for registration only, on 15.9.1993, long after the death of Arumuga Asari. Arumuga Asari was not living, either on the date of the execution of the alleged settlement deed, or on the date of the presentation of the document, for registration. As such, the alleged settlement deed, said to have been registered as document No.5159 of 1993, is void ab-initio. The alleged documents would not confer any right or title or interest in the 2nd plaintiff. The plaintiffs had https://hcservices.ecourts.gov.in/hcservices/ not come before the Court of law, with clean hands. Since, the vendor had no right, title or interest in the properties in question, he cannot pass on a better title than what he had, at the relevant point of time. 21. It has been further stated that the alleged settlement deed and document Nos.5159 of 1993, 1604 of 1997 and 1605 of 1997, are to be ignored, as void. The plaintiffs 2, 5 and 6 were never in possession and enjoyment of the suit property. They cannot be in legal possession and enjoyment of the suit properties. The claim that the first plaintiff was in possession and enjoyment of the suit properties and that he had made certain improvements therein, at a huge costs, is incorrect and false. The second plaintiff had not taken possession of the suit properties. The claims that it had put up sheds and had also sunk a borewell at an enormous cost, and that it had applied for electricity power connection, by depositing a certain amount of money and that it has been paying the actual minimum charges, are false. 22. It has been further stated that the claim that an application had been made to the Central Government and to the Bharathiar University, to start a Dental, Arts and Science College, would not support the case of the plaintiffs. The notice issued under the Land Acquisition Act and the orders passed by the High Court of Judicature at Madras, in the writ petitions, in W.P.Nos.17239 of 1997 and 17240 of 1997, would not confer any right or title to the plaintiffs in the suit properties. 23. It had also been stated that it is true that the defendants 1 to 10, as the legal heirs of Arumuga Asari had validity executed the sale deeds in favour of the defendants 11 to 14. There is no fraud or collusion amongst the defendants. Arumuga Asari had died, intestate, leaving behind the defendants 1 to 10, as his legal heirs, to succeeded to the suit properties. The sale deeds in favour of the defendants are true, valid and binding on all the persons concerned. The sale deeds had been executed for valid consideration. The first plaintiff cannot claim ignorance about the death of Arumuga Asari, as he had attended the funeral of Arumuga Asari. The sale deeds executed by the defendants 1 to 10, in favour of the defendants 11 to 14, are true, valid and binding on all the plaintiffs. As such, the defendants 11 to 14 would derive valid right, title and interest in the land properties in question, by way of the sale deeds executed in their favour. 24. It has been further stated that the defendants 11 to 14 had been put in physical possession of the suit properties, by the defendants 1 to 10. The defendants 11 to 14 are bona fide purchasers of the suit properties, for valuable consideration. The said defendants did not know the alleged settlement deed, or the other https://hcservices.ecourts.gov.in/hcservices/ documents created by the first plaintiff, in respect of the suit properties. The document created by the first plaintiff, in collusion with the other plaintiffs, is neither valid, nor bona fide in nature. They will not confer any right, title or interest or ownership to the plaintiffs, in respect of the suit properties. In such circumstances, the plaintiffs are not entitled to any declaration in respect of the suit properties, nor are they entitled for a decree of injunction, as prayed for in the suit. Further, no cause of action had arisen for the filing of the suit, by the plaintiffs. Hence, the suit is liable to be dismissed, with costs. 25. In the written statement filed on behalf of the defendants 15 to 17, the claims and allegations made on behalf of the plaintiffs had been denied. It had also been stated that the allegation that Arumuga Asari had executed an agreement for sale, on 17.8.1990, in respect of the suit properties, after receiving a certain sum of the money, had been denied. 26. It has been stated that the document said to have been executed by Arumuga Asari, on 17.8.1990, is a forged and fabricated document. The claim that Arumuga Asari had executed a power of attorney,on 24.4.1992, and the confirmation letter, dated 24.4.1992, said to have been issued on the same date,is incorrect and false. 27. It had also been stated that the alleged power of attorney would become inoperative after the death of Arumuga Asari, on 25.7.1993. Further, the first plaintiff had forged the signatures of Arumuga Asari and had created the alleged documents. As such, the suit has been filed with a mala fide motive and with fraudulent intentions. Therefore, the suit is misconceived and deserves to be dismissed. 28. In view of the averments made on behalf of the plaintiffs, as well as the defendants, the trial Court had framed the following issues for consideration: "1. Whether it is correct to state that the defendants 1 to 10 and their father had issued a letter, dated 24.4.1992, confirming the agreement for sale, after having received Rs.3,23,000/-? 2. Whether the sale deeds under document Nos.1366 of 1998 and 1367 of 1998 in the name of the defendants 11 to 14 are valid? 3. Whether the suit schedule 1 to 3 properties belong to the defendants 2, 5 and 6 exclusively? 4. Whether the plaintiffs are entitled to the relief https://hcservices.ecourts.gov.in/hcservices/ of declaration, as prayed for by them? 5. Whether the plaintiffs are entitled to the relief of permanent injunction, as prayed for by them? 6. What other reliefs?" 29. Three witnesses had been examined, as P.W.1 to P.W.3, and Exhibits A.1 to A.33 had been marked on behalf of the plaintiffs. Two witnesses had been examined on behalf of the defendants, as D.W.1 and D.W.2, and Exhibits B.1 to B.24 had been marked on behalf of the defendants. 30. The trial Court had noted that the first plaintiff had been examined as P.W.1. In the evidence adduced by P.W.1, it had been stated that Arumuga Asari, his wife and children, who are the defendants 1 to 10 in the suit, had, together, executed an agreement for sale, dated 17.8.1990, marked as Exhibit A.1. In the said agreement for sale, it has been stated that the sale would be executed, within 6 months thereafter. An initial advance of Rs.20,000/- had been taken by Arumuga Asari. Thereafter, various amounts had been received, on different dates and extension of time for the execution of the sale deed had also been granted. 31. The trial Court had also noted that, it was the claim of the first plaintiff that, on payment of the full consideration of Rs.3,22,000/-, on 24.4.1992, Arumuga Asari, had executed Exhibit A.2, a power of attorney in his favour. On the same day, Arumuga Asari, his wife and children had issued a confirmation letter in his favour, marked as Exhibit A.3. In the said letter, it had been assured that the general power of attorney granted, in favour of the first plaintiff, would not be revoked. 32. It had also been noted that the first plaintiff had claimed that, on the same day, when the confirmation letter, marked as Exhibit A.3, had been given, Arumuga Asari, had handed over the chitta and the kists receipts, relating to the property in question, to the first plaintiff and the possession of the property had also been given to him. Thereafter, the first plaintiff, as the power of attorney, had executed a settlement deed, in favour of Sree Kaliappan Trust, in respect of five acres of land mentioned in the suit first schedule. The settlement deed had been registered as document No.51 and the possession of the said property had also been handed over to the said Trust. 33. The trial Court had also noted that the first plaintiff had claimed that he had executed two other sale deeds in respect of the properties mentioned in the suit second and third schedules in favour https://hcservices.ecourts.gov.in/hcservices/ of the plaintiffs 5 and 6 under document Nos.1604 of 1997 and 1605 of 1997, respectively. After the said sale had been executed, the purchasers were put in actual possession and enjoyment of the said land. As such, the 2nd plaintiff and the plaintiffs 5 and 6 have been in possession and enjoyment of the lands mentioned in the suit schedule after having purchased the same from the first plaintiff. While so, the defendants 1 to 10, as the legal heirs of Arumuga Asari, had colluded and had executed the sale deeds, on 12.6.1998, in document Nos.1366 of 1998 and 1367 of 1998, in favour of the defendants 11 to 14, fraudulently. 34. It is the claim of the plaintiffs that the sale deeds executed by the defendants 1 to 10, in favour of the defendants 11 to 14, are invalid and therefore, they were not binding on the plaintiffs. As such, the defendants 11 to 14 had not derived any right or title, in respect of the properties in question. 35. While considering