IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.1.2009 CORAM: THE HON'BLE MR. JUSTICE K.MOHAN RAM Second Appeal No.221 of 2000 G. Annamalai .. Appellant/2nd Defendant -Vs- 1.Dhanabhackiammal .. Respondent/Plaintiff 2.Kathirvel Naicker .. Respondent/1st Defendant APPEAL against the judgment and decree passed by the Principal District Judge, Tiruvannamalai, in A.S.No.166 of 1997 dated 4.11.1999 confirming the judgment and decree passed in O.S.No.93 of 1987 dated 26.9.1997 by the Principal District Munsif, Tiruvannamalai. For Appellant : Ms. P. Savitha for M/s. T.R. Rajaraman For Respondents: Mr. J. Ramakrishnan for M/s. Saravanakumar - - - J U D G M E N T The unsuccessful second defendant in O.S.No.93 of 1987 on the file of the Principal District Munsif Court, Tiruvannmalai, whose appeal in A.S.No.166 of 1997 has also been dismissed by the learned Principal District Judge, Tiruvannamalai, is the appellant in the above second appeal. 2. For the sake of convenience, the parties are referred to as per their ranking in the suit. a. The case of the plaintiff, in-brief, is as follows:- The first defendant is the absolute owner of the suit property and he had entered into an agreement of sale with the plaintiff for a sale consideration of Rs.7350/-. Out of the sale consideration, a sum of Rs.1000/- was paid as advance and the balance was to be paid within one month and the plaintiff had to https://hcservices.ecourts.gov.in/hcservices/ get the sale deed executed by paying the balance of consideration. The agreement of sale also contained default clause under which it is provided that if the plaintiff commits default, she should loose the advance amount, whereas the first defendant commits default, he will pay a sum of Rs.2000/- as damages. In the agreement, it has been specifically stated that the first defendant had not entered into any agreement of sale previously in respect of the suit property. While so, the plaintiff came to know that the first defendant had executed a sale deed and the same was registered around 20.1.1987 in favour of the second defendant by using ante dated stamp papers. The sale in favour of the second defendant is a fraudulent transaction and such transaction has been brought out by the defendants to defeat the rights of the plaintiff. Hence, the plaintiff issued a legal notice, dated 21.1.1987 to the defendants and the same was received by the defendants but no reply was received and hence the suit. 3. The first defendant remained exparte and did not contest the suit. The second defendant contested the suit by filing a written statement, inter alia, contending as follows:- 4. The second defendant specifically denied each and everyone of the allegations contained in the plaint and contended that he had negotiated with the first defendant for the sale of the suit property and he had agreed to purchase the same even in December 1986. As per the understanding reached in December 1986, the sale deed was executed on 12.1.1987 by the first defendant in favour of the second defendant and the same was registered on the same day. The value of the suit property will not exceed Rs.2000/- and hence, the first defendant has sold the suit property for the sale consideration of Rs.2000/- to the second defendant. It has been specifically stated in the written statement that the sale deed was executed and registered on 12.1.1987 itself. Since the guideline value was Rs.2880/-, the remaining stamp duty was paid directly and both the execution and registration of the sale deed was done on 12.1.1987 itself. On coming to know about the sale deed, dated 12.1.1987, the plaintiff taking advantage of the addiction of the first defendant to liquor by cheating him and promising to pay more money got the agreement of sale, dated 14.1.1987 executed in her favour. In fact, either before or after the sale deed, dated 12.1.1987 executed in favour of the second defendant there was no agreement of sale in favour of the plaintiff. Only after the second defendant purchased the suit property, the sale agreement, dated 14.1.1987 has been created and therefore, the second defendant is a bonafide purchaser for valuable consideration without notice of the agreement of sale between the plaintiff and the first defendant. The second defendant has been in possession of the suit property and he continues to be in possession of the same. On the date of the alleged execution of the sale agreement, dated 14.1.1987, the first defendant had no title of the suit property and hence, the agreement https://hcservices.ecourts.gov.in/hcservices/ of sale, dated 14.1.1987 is not valid and it is not binding on the second defendant and therefore, the plaintiff is not entitled to specifically enforce the said agreement. On the aforesaid pleadings, the second defendant sought for the dismissal of the suit. 5. After framing the appropriate issues, the suit was taken up for trial by the trial Court and during the trial, the plaintiff has been examined as P.W.1 and one of the attesters of the sale agreement has been examined as P.W.2 and Exs.A1 to A4 have been marked but on the side of the second defendant, the second defendant has been examined as D.W1, the attester of Ex.B1 has been examined as D.W.2 and one Selvam has been examined as D.W.3 and the first defendant has been examined as D.W.4. 5a. The trial Court on a consideration of the oral and documentary evidence adduced in the case held that Ex.A1 sale agreement is true and genuine and the plaintiff was ready and willing to perform her part of the contract, whereas the first defendant was evading to execute the sale deed having entered into sale agreement Ex.A1 but to defeat the right of the plaintiff, he had executed Ex.B1 sale deed in favour of the second defendant and decreed the suit as prayed for. 6. Being aggrieved by that the second defendant filed an appeal in A.S.No.166 of 1997 before the Principal District Judge, Tiruvannamalai, who on an independent consideration of the oral and documentary evidence adduced in the case, the findings and the reasonings recorded by the trial court, confirmed the judgment and decree of the trial court and dismissed the appeal. Being aggrieved by that the second defendant has filed the above second appeal. 7. While admitting the above second appeal, the following substantial questions of law have been framed:- a. When the registration of sale deed dated 12.1.1987 is though subsequent, it relates back to the date of the sale deed, is the Courts below right in rejecting the sale deed ? b. Can the plaintiff succeed on the laches on the part of the defendant when she has failed to prove her own case? 8. Though for deciding the aforesaid substantial questions of law, it is necessary to consider the evidence adduced in the case unfortunately, either side has not filed the typed set of papers containing the oral and documentary evidence. Hence, left with no other alternative, I had to look into the originals and decide the case. https://hcservices.ecourts.gov.in/hcservices/ 9. This Court is pained and constrained to point out that in several second appeals, typed set of papers containing the relevant evidence/documents necessary for proper disposal of the appeals are not being filed which unnecessarily causes not only hardship to the court but causes delay in the disposal of the appeals. 10. Heard both. 11. The learned counsel for the appellant submitted that though Ex.B1 sale deed has been registered on 20.1.1987 since it had been executed on 12.1.1987, the registration will relate back to the date of execution of the sale deed. The learned counsel further submitted that since the sale deed has been validly executed on 12.1.1987, i.e., prior to Ex.A1 sale agreement, dated 14.1.1987 alleged to have been executed by the first defendant in favour of the plaintiff, the Courts below ought not to have accepted Ex.A1 sale agreement. The learned counsel further submitted that had Ex.A1, dated 14.1.1987 been true, the first defendant would not have sold the suit property to the second defendant for a lesser value, namely, Rs.2000/-. 12. The learned counsel submitted that simply because Ex.B1 sale deed had been written on stamp papers bearing two different dates, it will not affect either its validity or it will not create any doubt about its genuineness. The learned counsel further submitted that the plaintiff had not gone into the witness box and hence, the Courts below ought to have drawn an adverse inference. The learned counsel further submitted that when the first defendant had already executed the sale deed on 12.1.1987 itself, he had no right or valid title over the suit property to execute Ex.A1 sale agreement, dated 14.1.1987 in favour of the plaintiff and this aspect also has not been properly considered by the Courts below. 13. Countering the aforesaid submissions, the learned counsel for the plaintiff/first respondent submitted that when both the courts below on a consideration of the evidence available on record have recorded a concurrent findings that Ex.A1 sale agreement is true and genuine and Ex.B1 sale deed had been executed by the first defendant in favour of the second defendant to defeat the right of the plaintiff and such findings are based on the evidence available on record, this Court while exercising jurisdiction under Section 100 C.P.C., cannot interfere with the concurrent findings of fact. The learned counsel submitted that though Ex.B1 sale deed has been got written on stamp papers bearing two different dates and that itself may not invalidate the sale deed and that fact is one of the circumstances to be considered in the light of the other evidence adduced in the case for judging the genuineness of Ex.B1 sale deed and that is what has been done by the courts below. https://hcservices.ecourts.gov.in/hcservices/ 14. The learned counsel submitted that the Courts below have independently considered the evidence on record and have pointed out that if really as pleaded by the second defendant Ex.A1 sale agreement had been executed by the first defendant in favour of the plaintiff while he was in a drunken state because of the fraud played upon him, nothing prevented the first defendant from initiating any criminal action against the plaintiff or issuing notice to the plaintiff immediately after coming to know about the obtaining of the sale agreement in favour of the plaintiff. The learned counsel further submitted that both the courts below have pointed out the fact that the first defendant had not issued any notice to the plaintiff or initiated any criminal action against the plaintiff will itself show that the plea of the second defendant that Ex.A1 sale agreement was fabricated could not be accepted. 15. The learned counsel further submitted that both the courts below have pointed out that the first defendant for reasons best known to him had not contested the suit by filing a written statement but had chosen to tender evidence in favour of the second defendant and if really the first defendant had not executed the sale agreement Ex.A1 in favour of the plaintiff, he would have contested the suit by filing a written statement. The learned counsel further submitted that both the courts below have pointed out that if really Ex.A1 was created by the plaintiff to defeat the rights of the second defendant after coming to know about the execution of the sale deed, dated 12.1.1987, the plaintiff could have ante dated the sale agreement and the fact that it is dated 14.1.1987 after the sale deed, dated 12.1.1987 itself shows that Ex.A1 was not created as alleged by the second defendant. 16. The trial court considered the signature of the first defendant contained in Exs.A1, B1 and B4 and his deposition and has opined that all the signatures look alike and the first defendant after executing the sale agreement in favour of the plaintiff had tendered evidence to support the case of the second defendant. The lower appellate court has also pointed out that in the written statement, it has been specifically stated that Ex.B1 sale deed was executed and registered on 12.1.1987 itself, whereas Ex.B1 was registered on 20.1.1987 and the registration has been completed on 2.2.1987. The lower appellate court has also held that the second defendant had not purchased the suit property under Ex.B1 bonafidely and without notice. D.W.2 in his cross examination had stated that he was not aware as to whether Ex.B1 sale deed was registered on the same day of its execution. Both the courts below have pointed out that the non-examination of the plaintiff as a witness in the case will not affect the case of the plaintiff since Section 120 of the Evidence Act permits either husband or wife to give evidence on behalf of the other. https://hcservices.ecourts.gov.in/hcservices/ 17. In support of his aforesaid contentions, the learned counsel for the first respondent relied on the decision reported in AIR 2006 Supreme Court 2172 (Mst. Sugani v. Rameshwar Das & Anr.). In the said decision in paragraph 27, the Apex Court has laid down as under:- "If the question of law termed as a substantial question stands already decided by a larger Bench of the High Court concerned or by the Privy Council or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case would not be termed to be a substantial question of law. Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. The mere appreciation of the facts, the documentary evidence or the meaning of entries and the contents of the document cannot be held to be raising a substantial question of law. But where it is found that the first appellate court has assumed jurisdiction which did not vest in it, the same can be adjudicated in the second appeal, treating it as a substantial question of law. Where the first appellate court is shown to have exercised its discretion in a judicial manner, it cannot be termed an error either of law or of procedure requiring interference in second appeal. This Court in Reserve Bank of India v. Ramkrishna Govind Morey (1976 (1) SCC 803) held that whether the trial court should not have exercised its jurisdiction differently is not a question of law question of law justifying interference." 18. Basing reliance on the aforesaid decision, the learned counsel submitted that mere appreciation of the facts and the documentary evidence cannot be held to be raising a substantial question of law and when it is not shown by the appellant that the first appellate court has not exercised its discretion in a judicial manner, it cannot be termed to be an error either of law or of procedure requiring interference in the above second appeal. 19. The learned counsel also relied upon a decision of the Apex Court reported in AIR 2006 Supreme Court 1975 (Gurdev Kaur and others v. Kaki and others). In the said decision in paragraphs 69 to 72, the Apex Court has laid down as under:- https://hcservices.ecourts.gov.in/hcservices/ "69. Now, after 1976 Amendment, the scope of Section 100 has been drastically curtailed and narrowed down. The High Courts would have jurisdiction of interfering under Section 100 C.P.C. only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as "substantial question of law" which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become "third trial on facts" or "one more dice in the gamble". The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved. (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question. 70. The fact that in a series of cases, this Court was compelled to interfere was because the true legislative intendment and scope of Section 100 C.P.C. have neither been appreciated nor applied. A class of judges while administering law honestly believe that, if they are satisfied that, in any second appeal brought before them evidence has been grossly mis-appreciated either by the lower appellate court or by both the courts below, it is their duty to interfere, because they seem to feel that a decree following upon a gross mis-appreciation of evidence involves injustice and it is the duty of the High Court to redress such injustice. We would like to reiterate that the justice has to be administered in accordance with law. https://hcservices.ecourts.gov.in/hcservices/ 71. When Section 100 C.P.C. is critically examined then, according to the legislative mandate, the interference by the High Court is permissible only in cases involving substantial questions of law. 72. The Judicial Committee of the Privy Council as early as in 1890 stated that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be and they added a note of warning that no Court in India has power to add to, or enlarge, the grounds specified in Section 100." 20. Basing reliance on the aforesaid decision, the learned counsel submitted that the second appeal could not become "third trial on facts" or "one more dice in the gamble". The learned counsel submitted that there is no jurisdiction to entertain the second appeal on the ground of an erroneous finding of fact, however, gross or inexcusable the error may seem to be. The learned counsel further submitted that when the findings of the Courts below are based on an appreciation of the evidence on record and such findings are based on the evidence on record and when such findings are not challenged as perverse, this Court may not interfere with the concurrent findings of fact. 21. I have considered the aforesaid submissions made on either side, materials available on record and the decisions relied upon by the learned counsel for the first respondent. 22. At the outset, it has to be pointed out that in the decision of three Judges Bench of the Hon'ble Apex Court reported in (1991) 1 Supreme Court Cases 715 (Hamda Ammal v. Avadiappa Pathar and 3 Others), it has been laid down as under:- "In view of Section 54 of the Transfer of Property Act after the execution of the sale deed with consideration all the ingredients of sale are fulfilled except that in case of tangible immovable property the value of Rs.100 and upwards it can be made only by registered instrument. Section 47 of the Registration Act makes it clear that after the registration it will relate back to the date of execution of the sale deed. The act of registration is to be performed by the registering authority. Thus the vendee gets rights which will be related back on registration from the date of the execution of the sale deed." 23. Though as laid down in the aforesaid decision, the registration of a sale deed will relate back to the date of execution https://hcservices.ecourts.gov.in/hcservices/ of the sale deed, it has to be seen in this case, whether Ex.B1 sale deed was executed on 12.1.1987 with consideration or not. Only when the consideration recited in the sale deed is paid to the vendor by the vendee, all the ingredients of sale are fulfilled except that in case of tangible immovable property of the value of Rs.100 and upwards it can be made only by registered instrument. 24. In this context, it will be useful to refer to the pleadings contained in the written statement filed by the second defendant and oral testimony as D.W.1. Though the pleadings contained in paragraph 7 of the written statement is extracted extensively in the preceding paragraphs of this judgment, at the cost of repetition, the same is being repeated as it is vital for arriving at a just decision in the above second appeal. In paragraph 7 of the written statement, the second defendant has specifically pleaded that the first defendant sold the property to the second defendant for Rs.2000/-; on 12.1.1987 the document was written and on the same day it was registered and it has been again reiterated that both the execution of the document as well as the registration took place on 12.1.1987. But in his evidence, the second defendant as D.W.1 has stated as follows:- On 12.1.1987, he purchased the suit property under Ex.B1 sale deed for a consideration of Rs.2000/-; eight days after the document was written, it was registered; since there was little shortage of money, registration was not done on the same day. He has further deposed that the first defendant received the consideration of Rs.2000/- on the date of registration. The aforesaid deposition of D.W.1 is totally contrary to the aforesaid pleadings contained in the written statement. Thus, it is clear that though in Ex.B1 sale deed it is recited that the vendor, the first defendant had received the sale consideration of Rs.2000/- from the vendee the second defendant, the same is not true in the light of the aforesaid evidence of D.W.1. It is further recited in Ex.B1 that on 12.1.1987 itself, the possession of the suit property had been handed over to the second defendant. When admittedly, the sale consideration had not been paid on 12.1.1987, it is difficult to believe that the first defendant would have handed over the possession of the suit property to the second defendant. As observed by the Apex Court in the decision reported in (1991) 1 SCC 715, only when the sale deed is executed with consideration, all the ingredients of sale could be said to be fulfilled, though the registration of the same is postponed to a subsequent date. Since, as pointed out above, Ex.B1 was not supported by consideration as on 12.1.1987, the subsequent registration of Ex.B1 on 20.1.1987 cannot relate back to 12.1.1987 since on 20.1.1987 only the consideration of Rs.2000/- was paid, according to D.W.1. 25. It is pertinent to point out that D.W.2 is admittedly the cousin brother of D.W.1 and he too has not spoken to anything regarding passing of consideration on 12.1.1987. D.W.3 is the brother-in-law of the first defendant and D.W.4 is the first https://hcservices.ecourts.gov.in/hcservices/ defendant and as such it has to be pointed out that no independent witness has been examined on the side of the defendants. D.W.3 in his evidence has categorically stated that on the date of execution of Ex.B1, the second defendant had no money to complete the sale and hence, he said that registration could be done after one week. D.W.4 in his cross examination has stated that he does not know whether he executed any agreement in favour of the plaintiff. He has further deposed that he does not know whether the signature found in Ex.A1 is his signature. The aforesaid evidence of D.W.4 is evasive in nature. 26. One another vital aspect which requires to be pointed out is that in the written statement, the second defendant has pleaded that even in the month of December 1986, the sale of the suit property was negotiated between him and the first defendant and it was