IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 23 .06.2008 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN A.S.No.214 of 1991 Raj Mohan ... Appellant/1st Defendant vs. 1. Srinivasa Chettiar 2. Pandurangan 3. Krishnasamy ... Respondents 1 & 3/Plaintiff 1 & 3 (R3 declared as major and R2 discharged from guardianship of the 3rd respondent vide order of Court dt.3.7.2007) Appeal filed under Section 96 of the Code of Civil Procedure against the judgment and decree of the Subordinate Judge of Cuddalore dated 30.04.1990 made in O.S.No.154 of 1988. For Appellant : Mr.T.L.Ram Mohan, Senior Counsel for Mr.S.Subbiah For Respondents : Mr.V.Raghavachari J U D G M E N T The first defendant in the suit has preferred this appeal challenging the judgment and decree of the Subordinate Judge of Cuddalore dated 30.04.1990 made in O.S.No.154 of 1988. 2. The case of the plaintiffs as put before the Trial Court is, as under: (i) The property described in the 'A' Schedule originally belonged to one Logappa Chettiar and his brothers; Logappa Chettiar had two sons, namely, Kuppusami Chettiar and Krishnappa Chettiar; by a registered Partition Deed dated 25.01.1888, the suit property was partitioned between Kuppusami Chettiar and Krishnappa Chettiar; Krishnappa Chettiar pre-deceased his brother Kuppusami Chettiar, leaving behind his son Rangamannar Chettiar; Kuppusami Chettiar had no male issues and hence after his death, Krishnappa Chettiar's son Rangamannar Chettiar had got the ancestral property by Survivorship; https://hcservices.ecourts.gov.in/hcservices/ Rangamannar Chettiar had a son, by name, Srinivasa Chettiar and a daughter, by name, Alamelu; Srinivasa Chettiar had a son by name Pandurangan, the second plaintiff and the third plaintiff is his minor son; Alamelu, the third defendant was married to one Subramanian, the second defendant; out of their wedlock, four children namely, Rajamohan, Palani, Govindaraj and Malliga were born and they were arrayed as defendants 1, 4, 5 and 6, respectively, before the Trial Court. (ii) Rangamannar Chettiar was adjudged as insolvent in I.P.No.31 of 1929 on the file of the Sub Court, Cuddalore; accordingly, the suit property described in 'A' schedule was brought to sale in insolvency on 19.03.1991; the property was sold by the official Receiver and in that sale, the property was taken in court auction by one Kalyanarama Iyer for Rs.72/-, who was a close friend of Rangamannar Chettiar. Rangamannar Chettiar purchased the properties in the name of his close friend Kalayanarama Iyer in order to sell the same for the benefit of the family; the said Kalyanarama Iyer had no title to the property and he was only a benamidar; he never took possession of the property and it was only Rangamannar Chettiar, who continued to be in possession of the same. On 23.11.1937, the said Kalyanarama Iyer re-conveyed the property to Rukmani Ammal, mother of Rangamannar Chettiar by means of a sale deed for Rs.100/-, but no money was actually paid to him; the property was purchased for the benefit of the joint family in the name of Rukmani Ammal, because Rangamannar Chettiar filed an insolvency petition and there were undischarged decrees; Rukmani Ammal had no title to the property. (iii) The sale in favour of Rukmani Ammal is nominal, which is evident from the fact that the sale deed never came into effect; the property assessment stood always in the name of Rangamannar Chettiar; it was never changed in favour of Rukmani Ammal, both before and after the insolvency sale; the property has also been dealt with as the property of Rangamannar Chettiar and later by his son, by name, Srinivasa Chettiar, the first plaintiff in the suit. (iv) Rangamannar Chettiar died on 31.07.1939 and after his death, the first plaintiff has been in possession of the schedule mentioned suit property in his own right and he had executed several mortgages in which Rukmani Ammal was also a party; in the documents, Rukmani Ammal has admitted that the suit properties were ancestral properties of the first plaintiff; therefore, Rukmani Ammal or any person claiming under her are estopped from claiming any title to the suit property. Electricity service connection for the suit property always stood in the name of the first plaintiff; there are two service connections i.e., S.C.658 and S.C.4279 and from the year 1941, the first plaintiff alone was paying the house tax and the electricity bills. https://hcservices.ecourts.gov.in/hcservices/ (v) The first plaintiff, his wife Perundevi Ammal and their son Pandurangan, the second plaintiff were all living together in the suit property; the first plaintiff's sister, Alamelu and her husband, the second defendant were previously living at Thirupapuliyur, Cuddalore- 2; as the second defendant, who was doing plantain business in the market at Thirupapuliyur had no proper accommodation at Cuddalore, he requested the first plaintiff, who is none other than his brother-in- law to allow him to stay in a portion of the suit property at Panruti, promising that he would vacate the portion as and when he gets suitable accommodation and the first plaintiff also permitted him and his family to remain in a room in the upstairs portion of the suit property. (vi) In the due course of time, the second defendant with a motive to grab the possession of the suit property, poisoned the mind of the first plaintiff's wife, Perundevi Ammal and gradually created misunderstanding between the first plaintiff and her, due to which, from 1978, the first plaintiff and his wife were not in talking terms and the first plaintiff was not even taking food at his house. On the inducement of the second defendant, the first plaintiff's wife, Perundevi Ammal filed a suit for declaration of title and for possession of the suit property in O.S.No.225 of 1981 on the file of the Subordinate Judge, Cuddalore against the first plaintiff and his tenants and claimed title on an alleged Will executed by Rukmani Ammal in her favour; the first plaintiff was the third defendant in the suit; the suit was conducted by the second defendant on behalf of the first plaintiff's wife and it was contested by the first plaintiff; the first plaintiff's wife was merely a puppet in the hands of the second defendant, who had a dominative influence over her and she was doing everything only at his bidding; she neglected not only her husband but also her only son, the second plaintiff. Given to understand that the case would not succeed, the second defendant withdrew the suit on 15.04.1983 with liberty to file a fresh suit. (vii) The second defendant was originally allowed to remain only in a room in the upstairs; gradually, he trespassed major portion of the 'B' Schedule properties and is living there with his family; the second plaintiff is married and has got a child aged 4 years; the first plaintiff and the second plaintiff's family are living only in a small portion in the upstairs (i.e., the 'C' Schedule property); the entire house property is mentioned in 'A' Schedule properties; even after withdrawal of the suit in O.S.No.225 of 1981, the second defendant has been giving trouble to the plaintiffs and he has been trying to drive them out of the house by force; the first plaintiff has also given a police complaint in that regard; without the knowledge of the plaintiffs, the second defendant has obtained a settlement deed from the first plaintiff's wife Perundevi Ammal in favour of his son, the first defendant in the suit; the second https://hcservices.ecourts.gov.in/hcservices/ defendant was exercising complete control and influence over Perundevi Ammal and he completely alienated her from her husband, son and daughter-in-law. Taking advantage of this situation and exploiting it to his own benefits, the second defendant had obtained a document from her in the name of his son. (viii) In July 1984, the second defendant and his son Govindarajulu suddenly took away Perundevi Ammal from the house and her whereabouts were not known and the plaintiffs gave a complaint to the Circle Inspector on 04.07.1984, suspecting that Perundevi Ammal had been taken away only for the purpose of obtaining some documents from her; the plaintiffs also caused a publication to be made in “Daily Thanthi” dated 03.08.1984. All of a sudden, the plaintiffs received a telegram on 07.08.1984 that Perundevi Ammal died at Cuddalore; immediately, the plaintiffs rushed to the house of Rajamohan, the first defendant; Defendants 1 and 2 refused to hand over the corpse and only on the next day, i.e. On 08.08.1984 at 11.00 am, after mediation and after getting a letter from the plaintiffs, the corpse was handed over to the plaintiffs and thereafter they brought the corpse to Panruti and performed the rites. (ix) In the sequence of events, the death of Perundevi Ammal was under suspicious circumstances; she was never suffering from any serious illness; only later, the plaintiffs came to know that a document had been obtained from her and the first plaintiff got the registration copy on 22.09.1984; the plaintiffs were shocked to find that a settlement deed of the entire 'A' Schedule property has been obtained in favour of the first defendant. According to the plaintiffs, the defendants 1 and 2 have hatched a diabolical and sinister plan to grab the property. Perundevi Ammal has got only son, who is married and has a 4 year old male child and there was absolutely no motive for her to deprive her own kith and kin and execute a settlement deed in favour of her husband's sister's son; the attestors and scribe of the settlement deed are the close friends of the second defendant and with their help a false and fraudulent document had been obtained; the said settlement deed is not a true or valid document; under the settlement, the first defendant will not get any title because Perundevi Ammal herself had no title. Taking advantage of the Settlement Deed the defendants 1 and 2 have attempted to dispossess the plaintiffs 'C' Schedule property; hence, the plaintiffs filed a suit in O.S.No.154 of 1988 for declaration of their title to the 'A' Schedule properties and recovery of possession of the 'B' Schedule properties. 3(i). The first defendant, in the written statement, has not disputed that the suit properties originally belonged to Logappa Chettiar and that after various stages of succession, Rangamannar Chettiar got the properties. He stated that Rangamannar Chettiar was https://hcservices.ecourts.gov.in/hcservices/ an insolvent and the suit properties were sold in Court auction by the Official Receiver and the same were purchased by Kalyanarama Iyer of Melkumaramangalam Village, in pursuance of which Kalyanarama Iyer took possession of the property and enjoyed the same. He denied the averment in the plaint that the sale was taken in the name of Kalyanarama Iyer, benami by Rangamannar Chettiar; he also denied the averment that the sale deed was taken by Rangamannar Chettiar in the name of his mother without paying the sale price, for the family. 3(ii). According to the first defendant, on 23.11.1937, Kalyanarama Iyer sold the property to Rukmani Ammal, for consideration and in pursuance of the sale deed, Rukmani Ammal alone was in possession of the property and she has dealt with the property on her own, by executing a usufructory mortgage; the plaintiffs are estopped from setting up any theory of benami transaction by the recent enactment; the usufructory mortgage deed dated 15.08.1942 contains all sorts of false and wrong recitals and cannot be relied upon by the plaintiffs for any purpose as the said Rukmani was an illiterate. On 06.02.1950, the said Rukmani Ammal had executed a Will of all her properties in favour of Perundevi Ammal; the said Will was executed by the textatrix voluntarily in a sound and disposing state of mind and the same was duly executed and validly attested. Rukmani Ammal died on 11.08.1953 and after her death, Perundevi Ammal became the absolute owner of the property and she was in possession and enjoyment of the same, in her own right; the said Perundevi Ammal has executed a settlement deed of the property in favour of the first defendant on 18.05.1984 and the said settlement deed was duly executed and validly attested, accepted and acted upon. In pursuance of the settlement deed, the first defendant was put in possession of the property and thus, according to the first defendant, he had become the absolute owner of the suit property. 3(iii). Further, in the written statement, the first defendant has stated that the suit filed by Perundevi Ammal in O.S.No.225 of 1981 on the file of the Sub-Court, Cuddalore is a clear piece of evidence exposing the relationship between Perundevi Ammal and the first plaintiff; as Srinivasa Chettiar was the husband of Perundevi Ammal, he and other plaintiffs were allowed to stay in a portion of the suit property ex gratia; he denied the averment that he was put in possession of the suit property by the plaintiffs on permission. He has further stated that as the husband of Perundevi Ammal, the first plaintiff must have concocted and obtained service connection and tax receipts in his own name without her knowledge and prayed that the suit may be dismissed with costs. 4. The first defendant, in the additional written statement has stated that the plaintiffs are not entitled to claim that Rangamannar Chettiar purchased the property for his benefit, benami in the name of Kalyanarama Iyer and that Kalayanarama Iyer had no title to the https://hcservices.ecourts.gov.in/hcservices/ property; and that the plaintiffs are prohibited from stating that the said transactions are benami in nature by virtue of the “Benami Transactions Prohibition Act.” He denied the averment in paragraph III (8) of the plaint that the second defendant has obtained the settlement deed dated 18.05.1984 from Perundevi Ammal in the name of the first defendant using undue influence over her; the said settlement deed was voluntarily executed by Perundevi Ammal in a sound and disposing state of mind and the attestors to the settlement deed are the close friends of the defendants. 5. The second plaintiff, in the reply statement has denied the contentions raised in the additional Written Statement as not sustainable. According to him, the provisions of the Benami Transaction Prohibition Act will not be applicable to the facts of this case. He stated that Rukmani Ammal is a member of the family of Rangamannar Chettiar and his wife and the plaintiffs cannot invoke the provisions of the Act. It was his contention that the settlement obtained by the second defendant from Perundevi is an invalid and illegal document as it was obtained at a time when Perundevi was mentally impecile and not in a sound disposing state of mind. He submitted that the settlement deed is vitiated on account of the grounds mentioned in the plaint and the second defendant cannot claim any title to the property and it is the plaintiffs who are entitled to succeed Perundevi Ammal as legal heirs. 6(i). The second defendant, in the written statement has stated that the properties originally belonged to Rukmani Ammal; Rukmani Ammal had dealt with the property as her own property and she had executed a Will on 06.02.1950 in favour of Perundevi Ammal and she died on 11.08.1953; thereafter, Perundevi Ammal became the absolute owner of the property and she was in possession and enjoyment of the property in her own right. He denied the allegation that the plaintiffs allowed him to reside in a portion of the suit property; according to him, it is only Perundevi Ammal who allowed him to stay in the house and he also denied the allegation that he poisoned the mind of Perundevi Ammal. 6(ii). The second defendant has further stated that he had nothing to do with the filing of the suit in O.S.No.225 of 1981 on the file of the Sub Court, Cuddalore; he denied the allegation that he took away Perundevi Ammal from the house in July 1984 and had obtained a document. He submitted that no steps have been taken against him on the alleged case given by the first plaintiff and he also denied the allegation that he refused to hand over the corpse to the plaintiffs. It was his further submission that Perundevi Ammal had executed a Settlement Deed of the property in favour of the first defendant on 18.05.1984, which is true and valid document, duly accepted and acted upon and that he is in possession thereof. https://hcservices.ecourts.gov.in/hcservices/ 6(iii). He further submitted that he is an unnecessary party to the suit and that since he is in possession of the property by virtue of the settlement deed in his favour, he has absolutely nothing to do with the suit property. He contended that merely because he is in possession of the property, he cannot be impleaded unnecessarily and prayed for dismissal of the suit as not maintainable as against him and defendants 3 to 6, both on facts and in law. 7. The Trial Court, on consideration of the facts and circumstances of the case and on an analysis of the materials available on record has raised the following questions of law : “(a) Whether the Will dated 06.02.1950 is true and valid in law? (b) Whether the Settlement Deed dated 18.05.1984 is true and valid in law? (c) Whether the second defendant is a necessary party in the suit? (d) Whether the plaintiffs are entitled to declaration of the 'A' Schedule property ? (e)Whether it is true that the defendants have trespassed into the 'B' Schedule property? (f) Whether the plaintiffs are entitled to possession of the 'B' Schedule properties? (g) Whether the Settlement Deed dated 18.05.1984 was created due to the undue influence of the second defendant? (h) Whether the defendants are stayed from claiming possession of the suit property? On answering the above said questions of law, the Trial Court held that the plaintiffs are entitled to possession of the 'B' Schedule property and decreed the suit in their favour. Aggrieved by the judgment and decree of the Trial Court, the first defendant therein has approached this Court by way of the present appeal. 8. Heard Mr.Ram Mohan, learned Senior Counsel appearing on behalf of the appellant and Mr.V.Raghavachari, learned counsel for the respondents. 9. Learned Senior Counsel appearing for the appellant would contend that the lower Court erred in finding that the purchase by Rukmani Ammal was benami for the joint family and it is the burden of the plaintiffs to prove that there was a benami transaction. He also contended that the plea of benami transaction cannot be raised by the plaintiffs in view of the enactments prohibiting benami transactions and also the decision of the Supreme Court. It is the contention of https://hcservices.ecourts.gov.in/hcservices/ the learned Senior Counsel that there is no acceptable evidence to show that the first plaintiff was in possession of the property in his own right. He questioned the finding of the lower Court that in view of the relationship between the first plaintiff and Rukmani Ammal, it was not natural for the first plaintiff or his father to have paid either the tax for the suit house or the electricity consumption charges and the court below ought to have seen that Rukmani Ammal was also living in the same house and hence the possession of the first plaintiff cannot be said to be adverse to Rukmani Ammal and also the Court below has erred in not taking note of the fact that the first plaintiff himself has produced the Will in a prior litigation in which he was a party. 9a. Learned Senior Counsel further contended that the court below has not properly considered the suit instituted by Perundevi Ammal in O.S.No.225 of 1981 in which she has made allegations against her husband and her son and also he would contend that there was no investigation in any of the police complaints and it is only a make believe document just to throw suspicion on the settlement deed. 9b. In support of his contentions, learned Senior Counsel has relied on the following decisions : (i) In JT 1995 (1) SC 223 in the case of Smt.Ramti Devi vs. Union of India, the Supreme Court has held, as under: “2. ... 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 remains valid and binds the parties. So the suit necessarily has to be laid within three yerars 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 is hopelessly barred by limitation. ...” (ii) The Andhra Pradesh High Court in the case of Karireddy Ramayamma vs. Kasireddy Rama Rao reported in AIR 2000 Andhra Pradesh 29 has held as follows: “13. ... It is also well accepted that no relief can be granted to a defendant party in spite of the plaintiff failing to prove or establish his claim. Therefore, under these circumstances, the bar is staring against a party defendant in making an attempt to avoid a document to which he is a party by taking the mere plea of fraud without the same being declared void in a suit filed under https://hcservices.ecourts.gov.in/hcservices/ S.31 of the Specific Relief Act, more so, when the apprehension is writ large on the allegations in the plaint where the document is relied on and used against the defendant.” (iii) The Supreme Court in the case of Uma Devi Nambiar and others v.s T.C.Sidhan (dead) reported in (2004) 2 SCC 321 has held as under: “16. A Will is executed to alter the ordinary mode of succession and by the very nature of things, it is bound to result in either reducing or depriving the share of natural heirs. If a person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance especially in a case where the bequest has been made in favour of an offspring. ...” (iv) The Supreme Court, in yet another decision in the case of Daulat Ram and others vs. Sodha and others reported in (2005) 1 SCC 40 has held as under: “13. The burden of proof that the Will dated 08.05.1983 executed by Prati in favour of his daughter was forged or was obtained by undue influence or by playing a fraud was on the appellants which they have failed to discharge. No evidence was led by them on either of these points.” (v) In the case of India Financial Association, Seventh Day Adventists vs. M.A.Unneerikutty and another reported in 2006 (4) CTC 597, the Supreme Court has held as follows: “14. ... Where a contract, express or implied, is expressly or by implication forbidden by statute, no Court will lend its assistance to give its effect. [See Mellis vs. Shirley L.B., (1885) 16 QBD 446; 55 LJQB 143 ; 2 TLR 360]. A contract is void if prohibited by a statute, under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition. The penalty may be imposed with intent merely to deter persons from entering into the contract or for the purposes of revenue or so that the contract shall not be entered into so as to be valid at law. A https://hcservices.ecourts.gov.in/hcservices/ distinction is sometimes made between contracts, entered into with the object of committing an illegal act and contracts expressly or impliedly prohibited by statute. The distinction is that in the former class one has only to look and see what