THE HON'BLE MR.JUSTICE T.MATHIVANAN
A.S.No.60 of 1990
6.Vinodhini .... Appellants
(Appellants 4 to 6 brought on
record as LRs of deceased
3rd appellant vide Order
of Court dated 21.02.2011
made in C.M.P.No.144 of 2011)
10.Rangasami .... Respondents
Prayer : Appeal filed under Section 96 of the Code of Civil Procedure, against the Judgment and Decree dated 10.05.1988 and made in O.S.No.549 of 1984, on the file of the learned Sub-ordinate Judge and Second Additional Sub-Judge (in-charge), Coimbatore. For Appellants : Mr.H.Doraisamy - 1st Appellant
for M/s.T.S.Gopalan & Co.,
for 2nd Appellant
for Appellants 4 to 6
For Respondents : Mr.S.Mukundan
for M/s.Sarvabhuman Associates
J U D G M E N T
Challenge is made in this appeal by the plaintiffs to the Judgment and Decree dated 10.05.1988 and made in O.S.No.549 of 1984, on the file of the learned Sub-ordinate Judge and Second Additional Sub-Judge (in-charge), Coimbatore.
2. The facts, which absolutely necessary for the disposal of this appeal may be summarised briefly as under:
The original legal characters of the parties to the suit may not be changed and be it as it is in the suit.
2.1. One Sadaya Gounder alias Sadayacha Gounder, who is the maternal grandfather of the plaintiffs, had died on 16.10.1959. The properties described in the Schedule A to D were his self-acquisitions. The plaintiffs are the son and daughters of the deceased daughter Nanjammal of the deceased Sadaya Gounder. The defendants 1 to 3 are the sons and the fourth defendant is the daughter of the said Sadaya Gounder. The fifth and sixth defendants are the son and daughter of the deceased daughter Dhoddakkal of the deceased Sadaya Gounder. The defendants 7 and 8 are said to have been the agreement holders to purchase the land mentioned in Schedule A to C. The defendants 9 and 10 are the President and Secretary of the Indian Overseas Bank Staff Colony, who were said to have been the intending purchasers of the land specified in the Schedule A to C, who inturn will distribute them among the staff members of the said bank for building houses. Since Sadaya Gounder had died intestate, the plaintiffs and the defendants 1 to 6 are entitled to the said properties.
2.2. The properties described in the Schedule A to D are the joint family properties and as such the plaintiffs and the defendants 1 to 6 are in joint possession. The properties mentioned in Schedule A, B and C are lands and hence they have been cultivating by the defendants 2 and 3. The property described in Schedule D is the house and therefore the defendants 2 and 3 have been residing therein. Since Sadaya Gounder had left three sons and three daughters, each one of them is entitled to 1/6th share in the suit properties. The plaintiffs together have inherited their late mother Nanjammal's 1/6th share in the entire suit properties described in Schedule A, B, C and D.
2.3. Suppressing the rights and interests of the plaintiffs in the suit properties, the defendants 1 to 3 are alleged to have entered into an agreement of sale with the defendants 7 and 8 to sell the properties specified in the Schedule A, B and C to the defendants 9 and 10 for the purpose of building houses for the staff of Indian Overseas Bank. The plaintiffs had issued a registered notice on 09.04.1984 to the defendants 1 to 3 claiming their 1/6th share.
2.4. On receipt of the said notice, the defendants 1 to 3, 7 and 9 had given a reply dated 16.04.1984 stating that the Sadaya Gounder had died only on 14.11.1934 and not in 1959 and as such the plaintiffs' mother Nanjammal had no right at all in the suit properties of their father Sadaya Gounder. They have also sated that since the plaintiffs' mother Nanjammal had no right in the suit properties, the plaintiffs cannot claim any sort of rights over the suit properties.
2.5. When the matter stood thus, that on 20.04.1984, the defendants 2 and 3 had approached the first plaintiff and represented that even though the plaintiffs had no right in the suit properties, they were prepared to pay the plaintiffs a sum of Rs.10,000/-, provided they agree to sign a release deed.
2.6. That on 21.04.1984, the defendants 2 and 3 had arranged a Panchayat at Bommanampalayam and in that Panchayat they had baffled the first plaintiff by showing a death register extract pertaining to some other Sadaya Gounder of the said village, in furthermore of their contention that Sadaya Gounder had died only on 14.11.1934 and obtained the consent of the first plaintiff illegally to sign a release deed prepared immediately thereafter. Infact, the defendants 2 and 3 had played fraud upon the first plaintiff and deceitfully made him to sign in the release deed on 21.04.1984 and he was also asked to bring his sisters viz. the plaintiffs 2 and 3 to the Sub-Registrar's Office on 23.04.1984.
2.7. They had also threatened the first plaintiff by declaring that if he and his sisters do not release their rights in the suit properties, they will not succeed in the suit as Sadaya Gounder died only in the year 1934 long before the enactment of Succession Act and they will also have to lose sum of Rs.10,000/- which was agreed to be paid by them.
2.8. Honestly believing the death extract shown to him in the Panchayat on 21.04.1984 to be true and genuine, the first plaintiff and at his request his sisters second and third plaintiffs had been to the Sub-Registrar's Office and signed the release deed. The first page of the release deed was removed as it was written on 21.04.1984 and a new paper was inserted with the date of 23.04.1984 as the original deed was dated as 21.04.1984 and the first plaintiff was asked to sign in the first page once again.
2.9. Earlier the defendants 1 to 3 had paid the plaintiffs Rs.10,000/- as told by them and with this amount the first plaintiff had also purchased a landed property measuring about 10 Cents for a price of Rs.5,000/- on the same day. Though the value of the properties described in the Schedule A to D was worth about Rs.2,70,000/-, in order to evade stamp duty and other incidental charges, a much lower rate of Rs.35,000/- was mentioned in the release deed. The release deed so obtained from the plaintiffs is void abinitio and not binding upon the plaintiffs.
2.10. That on 14.06.1984, the first plaintiff was put to understand that the death register extract shown to him to obtain his consent to execute the release deed was not that of their grandfather Sadaya Gounder, but that of some other Sadaya Gounder of the same village and therefore a second pre suit notice dated 16.06.1984 was caused to be issued to the defendants 1 to 3 for partition of the suit properties into six equal shares and put them into separate possession of 1/6th share.
2.11. They have also categorically stated that they are prepared to repay the amount of Rs.10,000/- which was paid to them by the defendants 1 to 3. On receipt of this notice, the defendants 1 to 3 had also issued a reply dated 28.06.1984 with false allegations. The plaintiffs have also sought the permission of this Court to deposit the amount of Rs.10,000/- as they want only their 1/6th share in the suit property.
3. On account of the demise of the first defendant Chinnae Gounder his only son Rangaswamy has been impleaded as 11th defendant, in pursuant to the order in I.A. No.1126 of 1986.
4. The defendants 1 to 3 have filed their written statement refuting the allegations made in the plaint. The defendants 4 to 11 have adopted the written statement filed by the defendants 1 to 3. In the return statement the defendants have admitted their relationship with the plaintiffs and putforth their case as under: 4.1. The seventh defendant is an unnecessary party to the suit and the suit against him is liable to be dismissed. Even during the lifetime of Sadayapa Gounder the properties were enjoyed by the defendants 1 to 3 with full rights and they had also improved the lands for more than the statutory period and therefore the claim by Nanjammal was barred.
4.2. The plaintiffs are/were not at all in joint possession of the properties at any time. The defendants 1 to 3 were in possession and enjoyment of the properties even during the life time of Sadaya Gounder. The plaintiffs on their own accord have executed a registered release deed dated 23.04.1984 to the extent of 1/6th share in favour of these defendants in consideration of Rs.10,000/- through the eighth defendant. The deed itself will speak clearly that the defendants 1 to 3 never had misrepresented and suppressed anything to the plaintiffs.
4.3. The plaintiff by knowing fully well of their right had released it in favour of the defendants. Further, the defendants 1 to 3 had paid a sum of Rs.5,000/- through eighth defendant to acquire about 10 Cents in favour of the first plaintiff from one Mylswamy of Bommanampalayam. The first plaintiff never signed the release deed on 21.04.1984 as alleged in the plaint. In fact, the stamp papers of the release deed were purchased by the first plaintiff himself in his name bearing Nos.669 and 670, dated 21.04.1984. As such, it is clear that there was no misrepresentation by fraud by the defendants 1 to 3 at any time. The defendants 1 to 3 had paid a sum of Rs.10,000/- to the plaintiffs only on 23.04.1984 and not earlier as alleged by the plaintiffs.
4.4. The plaintiffs with their eyes wide open had executed the release deed for the consideration of Rs.10,000/-. Apart from this, the defendants 1 to 3 had also paid Rs.5,000/- through the eighth defendant to purchase 10 Cents in favour of the first plaintiff.
4.5. The fact remains that the defendants 1 to 3 had entered into an agreement of sale with the suit properties excepting Schedule D house property with the defendant 8 on 07.12.1983 and inturn the defendant 8 had entered into an agreement of sale with the defendants 9 and 10 dated 20.12.1983 along with these defendants. At this juncture, the plaintiff had issued notices to this defendant and other defendants. The defendants 1 to 3 had also issued reply, but the eighth defendant being the real estate dealer had insisted and negotiated with the plaintiffs and these defendants had agreed the proposal of payment of Rs.15,000/- to the plaintiffs out of which Rs.10,000/- towards the consideration of release deed and the remaining amount of Rs.5,000/- is for the purpose of purchasing 10 cents in the name of the first plaintiff. The plaintiffs have suppressed the real facts and given colourable version to make better their false case. The defendants 4 to 6 have released their rights in the suit properties by virtue of the registered release deed dated 25.04.1984 only for a sum of Rs.5,000/- on the negotiation of eighth defendant.
4.6. For the reasons stated above, the plaintiffs are not entitled to any share muchless 1/6th share in the suit properties by virtue of true valid and genuine release deed dated 21.04.1984. Therefore, it cannot be cancelled. In fact, the defendants 1 to 3 are in possession and enjoyment of A, B and C Schedule properties and the eighth defendant and his purchaser through defendants 9 and 10 alone are in possession and enjoyment of the said properties. They are necessary and proper parties to the suit. There is no cause of action for the suit and the payment of Court fee under Section 37(1) of the Court Fee Act ought to have been paid by the plaintiffs as they are out of possession of the suit properties and this fact has also been admitted by them in Paragraph No.5 of the plaint.
5. In the reply statement, the plaintiffs had contended that the original owner of the suit properties Sadayapa Gounder was cultivating the suit lands till his death and therefore it is false to state that the defendants 1 to 3 were cultivating and effected improvements even during the lifetime of their father. The plaintiffs were given only Rs.10,000/- and the alleged sales by the defendants to various listed persons in the written statement is false and it is false by the fact that no consideration for sale and date of execution deed were given plaintiffs need not implead them as parties to the suit because they are unnecessary parties.
6. Based on the pleadings of the parties to the suit, the Trial Court has formulated the following four issues for the better adjudication of the suit:
i. Whether the release deed dated 23.04.1984 executed by the plaintiffs in favour of the defendants 1 to 3 is true, valid and binding on the plaintiffs?
ii. Whether the seventh defendant is an unnecessary party to the suit?
iii. Whether the plaintiffs are entitled to the partition as prayed for?
iv. To what relief the plaintiff is entitled?
7. In order to substantiate their respective cases, the parties to the suit went for trial. Three witnesses, which includes the first plaintiff were examined on behalf of the plaintiffs and during the course of their examination Exs.A1 to A43 were marked. On the other hand, the second defendant had examined himself as DW1 and during the course of his examination Exs.B1 and B2 were marked.
8. On appraising the oral and documentary evidences adduced on behalf of both sides and on considering the real facts, which are in issue, the Trial Court has found that:
(i) Firstly, release deed under Ex.B1 (A15) is a genuine one and was not obtained by the defendants 1 to 3 from the plaintiffs under duress and coercion and hence it will certainly bind upon the plaintiffs, and
(ii) Secondly, since the plaintiffs 1 to 3 had released their rights over the suit schedule properties viz.A, B, C and D in favour of the defendants 1 to 3 through Ex.B1 (Ex.A15), they cannot claim any semblance of right muchless 1/6th share in the suit properties, With the above findings, the Trial Court has proceeded to dismiss the suit without cost on 10.05.1988.
9. Now, the plaintiffs, being aggrieved by the impugned Judgment and Decree dated 10.05.1988, have approached this Court by way of this appeal.
10. During the pendency of this appeal, the third plaintiff Nagammal had passed away and hence in view of the Order dated 21.02.2011 and made in C.M.P.No.144 of 2011, the appellants 4 to 6 have been impleaded as the legal representatives of the deceased third appellant.
11. It is significant to note here that during the pendency of the suit, the first defendant Chinnae Gounder had passed away and hence in view of the Order dated 04.02.1987 and made in I.A.No.1126 of 1986, on the file of the Trial Court, the eleventh defendant being the son of the first defendant was impleaded as his legal representative.
12. During the pendency of this appeal, the fourth defendant Rangasamy had also died. Since, the appellants had not chosen to implead the legal representatives of the fourth respondent within the stipulated time, the appeal as against the fourth respondent was abated. There was a delay of 702 days in filing the application to set aside the abatement. That petition in C.M.P.No.14760 of 1992 was dismissed by this Court on 01.04.1993.
13. Challenging the Order of dismissal dated 01.04.1993, the appellants had preferred a Letters Patent Appeal in L.P.A.No.100 of 100 of 1994 before the Division Bench of this Court and that appeal was also dismissed on 08.11.2000 after confirming the above Order.
14. Challenging the Judgment dated 08.11.2000, the appellants had filed a review application before the Division Bench of this Court in S.R.No.91490 of 2000. That application was also dismissed on 09.07.2001.
15. Impugning the above said Order, the appellants had preferred a Special Leave petition before the Hon'ble Supreme Court of India in S.L.P.(Civil) C.C.4452 of 2002. That petition was also dismissed both on the ground of delay as well as on merits. Against this Order, the appellants had filed a Review Petition (Civil) No.1021 of 2002 in S.L.P. (Civil) 15076 of 2002 before the Supreme Court. That review petition was also dismissed.
16. On coming to the present appeal, the respondents 2 to 5 had also passed away during the pendency of the appeal and their legal representatives have not been brought on record.
17. Pending disposal of this appeal, the first plaintiff H.Doraisami had filed a writ petition in W.P.No.11275 of 2008 before this Court and thereby sought the writ of mandamus to cancel the original release deed dated 23.04.1984 under Ex.B1 (A15), registered at S.R.O.Raja Street, Coimbatore. After hearing both sides, this Court had dismissed the writ petition on 03.12.2008 with the following observation: The writ petition could be disposed of on the simple ground that the writ petition is not maintainable and the relief sought for is the civil remedy.
Challenging the release deed, the writ petitioner seems to have exhausted all the available remedies before the Civil Court. Now, the present writ petition is filed seeking cancellation of the said release deed dated 23.04.1984. Now the writ petition has been filed seeking direction to the second respondent/sub-Registrar to cancel the release deed. Such a writ petition is not maintainable. This is all the more so, when the petitioner has already exhausted all the available remedies before the Civil Court.
18. Challenging the above Order, the first plaintiff had preferred a writ appeal in W.A.No.1477 of 2008. On hearing both sides, the Division Bench of this Court headed by his Lordship Hon'ble Mr.JUSTICE H.L.GOKHALE, Chief Justice (as he then was) had dismissed the writ appeal on the following grounds: In the writ petition the learned single Judge held that there could not be any parallel proceeding, which is all the more so, when the petitioner/appellant has already exhausted all the available remedies in the civil proceedings. In the facts and circumstances of the case, we do not find any error in the order of the learned single Judge. The writ appeal is dismissed.
19. From the forgoing facts, it could be easily inferred that the first plaintiff had exhausted all the available remedies. But, miserably failed. All his endeavor was aimed at cancelling the registered release deed under Ex.B1(A15). Even after dismissal of the writ appeal, he had once again opened his another innings through a civil miscellaneous petition in C.M.P.No.1269 of 2010 in the present appeal. This time, he has changed the nomenclature of the document under Ex.B1 (A15) as Relinquishing Deed instead of calling it as Release Deed. This Court, on considering the submissions made on behalf of both sides, had finally dismissed the petition with an observation that "Inasmuch as the relief prayed for by the petitioners/appellants/plaintiffs in C.M.P.No.1269 of 2010 viz., praying for permission to allow them to cancel the relinquishment deed dated 23.04.1984, revolves around the points for determination in the main appeal, this Court is of the considered view that the aspect of cancellation of relinquishment deed dated 23.04.1984 is to be gone into the threadbare and detailed manner only in the main appeal and that cannot be decided in the C.M.P.no.1269 of 2010 and accordingly, the civil miscellaneous petition is disposed of.
20. In the present appeal also, Ex.B1 (A15) which is a registered release deed in document No.1471 of 1984 plays pre-dominant role.
21. In the suit in O.S.No.549 of 1984, the plaintiffs have sought the following reliefs:
a) for cancellation of the release deed dated 23.04.1984 executed by the plaintiffs,
b) for partition of the suit properties described in Schedule A, B, C and D into six equal shares and for allotment of one such share together, to the plaintiffs and put them in separate possession of such share, c) directing the defendants 2, 3 and 11 to pay costs of the suit, and
d) to grant such other and further reliefs as this Court may deem fit and proper under the circumstances of the case,
For the disposal of the appeal, the prayer portions A and B are quite relevant.
22. As adumbrated supra, the Trial Court has found that the release deed under Ex.B1(A15) is a genuine document and it was executed consciously by the plaintiffs in favour of the defendants 1 to 3 and thereby they have released their rights over the suit schedule property viz.A, B, C and D in favour of the defendants 1 to 3 and as such the plaintiffs are not entitled to claim any share over the suit properties as they have no semblance of right to claim in view of Ex.B1(A15). The claim of partition by the plaintiffs and the document under Ex.B1(A15) are inter related with each other. If the release deed is proved to be void-ab-initio, the plaintiffs claim of partition would come out of shell to see the chance of possibility.
23. In order to claim share over the suit schedule properties, first, the plaintiffs have to establish their rights along with the other co-sharers to claim their appropriate share. When they had released their rights over the suit property in favour of the plaintiffs, how can they claim share in the suit properties muchless 1/6th share? Secondly, it is admitted fact that the respondents 2 to 5 had already passed away and their legal representatives have not been brought on record. Under this circumstance, it is for the appellants to answer as to how this appeal is maintainable when the legal representatives of the deceased respondents were omitted to be brought on record.
24. In sofar as the instant case on hand is concerned, as rightly submitted by Mr.S.Mukundan, learned counsel for R7, the following three legal maxims have assumed considerable importance:
i. Affirmanti, non neganti incumbit probatio,
ii. Qui approbat non reprobat,
iii. Acta exteriora indicant interiora secreta,
The first maxim i.e. Affirmanti, non neganti incumbit probatio has been defined in Black's Law Dictionary, Sixth Edition, in the following manner:
The burden of proof lies upon him who affirms, no upon one who denies.
The same definition has been given for the above maxim in Wharton's Law Lexicon, 15th Edition, 160th Year of Publication.
25. It is therefore clear that having come forward with a plea of fraud and misrepresentation and duress in respect of Ex.B1(A15) release deed, it is for the plaintiffs to establish their case by adducing valid and acceptable legal evidence.
26. It is the specific case of the plaintiffs that the suit properties were originally belonged to one Sadaya Gounder, who is none other than the their maternal grandfather. He died intestate in the year 19.10.1959, leaving behind the three sons and three daughters viz. Chinne Gounder, Krishnappa Gounder, Ramasamy Gounder (D1 to D3) and Doddakkal (died in the year 1963), Nanjamma (died in the year 1961) and Chinnakkal (died in the year 1963. The plaintiffs are the son and daughters of deceased Nanjamma. Therefore, the plaintiffs have stated in the plaint that the Sadaya Gounder's three sons and three daughters are each entitled to get 1/6th share and since their mother viz. Nanjammal had died the plaintiffs have altogether claimed 1/6th share through their mother. It is also the case of the plaintiffs that the suit schedule properties A, B, C and D are the joint family properties and therefore they are entitled to claim altogether 1/6th share in the suit properties.
27. It is also the case of the plaintiffs that the defendants 1 to 3 had entered into an agreement of sale in respect of the landed properties specified in the schedule A, B and C with the defendants 7 and 8 to sell the same in favour of the defendants 9 and 10 for the purpose of constructing houses for the staff members for the Indian Overseas Bank. Hence, a registered notice dated 09.04.1984 (Ex.A7) was caused to be served on the defendants 1 to 3, 7 and 9. Under this circumstance, it is alleged that the defendants 2 and 3 had approached the first plaintiff on 20.04.1984 and agreed to pay a sum of Rs.10,000/- and requested the plaintiffs to execute a release deed.
28. It is also the case of the plaintiffs that the the defendants 2 and 3 had arranged a Panchayat on 21.04.1984 at Bommanampalayam and in that Panchayat they had baffled the first plaintiff by showing death register extract pertaining to some other Sadaya Gounder of the said village, in furthermore of their contention that Sadaya Gounder had died only on 14.11.1934 and obtained the consent of first plaintiff illegally to sign a release deed prepared immediately thereafter. They have also contended that the first plaintiff was made to believe that his maternal grandfather Sadaya Gounder had passed away on 14.11.1934 ie.prior to the enactment of the Hindu Succession Act, 1956 and therefore he was informed that they could not claim any share.
29. The first plaintiff, who is the party-in-person would contend that the defendants 1 to 3 had played fraud upon the plaintiffs and obtained their consent fraudulently after making them to believe that Sadaya Gounder had died on 14.11.1934 prior to the enactment of the Hindu Succession Act, 1956.
30. In this connection, the learned counsel for the seventh respondent would contend that the first plaintiff, who was examined as P.W.1 had completely deviated and contradicted his own pleadings. In his evidence, he would state that he had agreed and signed the release deed under Ex.B1(A15) only on the impression that the release deed was executed in respect of D-Schedule property for the consideration of Rs.10,000/- and that the defendants 1 to 3 had agreed to give 40 Cents in plaint A, B and C Schedule. He has also stated in his evidence that after executing the release deed, when the plaintiffs had requested to give 40 Cents in A, B and C Schedule properties, the defendants 1 to 3 had told them that the release deed under Ex.B1(A15) pertains to all the property, which includes the D-Schedule. Even in his chief-examination P.W.1 had admitted that the release deed under Ex.A15(B1) was executed only in respect of the D-Schedule property and not in respect of Schedule A, B and C.
31. Though the defendants 1 to 3 had taken their initial plea in Ex.A14, reply notice, that Sadaya Gounder had died as per the death register extract on 14.11.1934 and not in the year 1954, but, in the later stage i.e. in their written statement and during the course of trial they had abandoned this plea and would contend that the release deed dated 23.04.1984 executed by the plaintiffs in favour of the defendants 1 to 3 was true, valid and binding on the plaintiffs. Further, they would contend that a sum of Rs.10,000/- was paid to the defendants 1 to 3 on 23.04.1984 on the date of execution of the release deed itself through the eighth defendant. They have also contended that apart from Rs.10,000/- they had also paid Rs.5,000/- through eighth defendant out of which a land measuring 10 Cents was purchased in the name of the first plaintiff and this amount of Rs.5,000/- was a separate one and not out of Rs.10,000/-. Ultimately, they would contend that the plaintiffs are not entitled to any share in the suit property by virtue of the release deed dated 23.04.1984, which is true, valid and the plaintiffs are bound by it.
32. On careful scrutinization of Ex.B1(A15) original release deed, it appears that two stamp papers for the value of Rs.20/- and Rs.10/- respectively were purchased in the name of the first plaintiff on 21.04.1984. These two stamp papers were also numbered consecutively as 669 and 670. It is also established that though the stamp papers are dated as 21.04.1984, the release deed was virtually executed only on 23.04.1984 and registered on the same date as seen from the entries on the reverse of the first stamp paper.
33. In this connection, the learned counsel for the seventh respondent would contend that the plaintiffs had not proved the alleged fraud. He would submit further that there was no evidence with respect to the death certificate of Sadaya Gounder that the plaintiffs were mislead by the documents. It was argued on behalf of the second plaintiff that there was an interpolation in the fourth page of Ex.B1. In the fourth page of Ex.B1 in the last line the words "the property worth about Rs.35,000/-, 200 sq.ft., building" seems to have been added. But there is no pleadings or evidence to that effect. The learned counsel for the second plaintiff has argued that the stamp papers for the total value of the property had not been purchased as required by the Indian Registration Act. This cannot be questioned at present that Ex.B1 has been rightly registered by the appropriate authority.
34. The learned counsel for the third plaintiff has also argued that there was no reply for Ex.A16 and that the defendants 1 to 3 had intentionally played fraud upon the plaintiffs and deceitfully obtained the signature in Ex.A15(B1). But all the contentions made by the plaintiffs before the Trial Court were rightly rejected and the Trial Court has, after appraising the evidences and other materials on record, correctly come to the conclusion that Ex.B1(A15) is valid, genuine and would definitely bind upon the plaintiffs.
35. P.W.1 in his evidence at Page No.3 has stated as if the defendants 1 to 3 had told the plaintiffs that a land measuring 40 Cents would be given from the landed properties specified in A, B and C and a sum of Rs.10,000/- would be given in respect of the D-Schedule housing property. But, this has not been specifically pleaded in the plaint by the plaintiffs. In the same page i.e. Page No.3, in the last six lines, P.W.1 (the first plaintiff) has stated that on 23.04.1984, he had brought his sisters to the Sub-Registrar's Office. While so, the Registrar had refused to register the release deed as the value of the property was not properly mentioned in the said document. He would further state that the Registrar had suggested that the document could be registered after removing the first page. Since it was not possible as the document was already signed it was subsequently cancelled and thereafter a new document was executed and then only he and his sisters had signed. But, these facts have also not been specifically pleaded in the plaint.
36. In this connection, the learned counsel for the seventh respondent would contend that no amount of evidence could be let in without pleadings to that effect. In support of his contention, he has placed reliance upon a decision reported in Muthamil Selvam vs. A. Manickam 2009 (4) CTC 377. In this case, this Court has held that it is an axiomatic principle of law that without pleadings with regard to particular aspect, no evidence can be adduced and further any amount of evidence without necessary pleadings need not be looked into. It is also observed that without pleading Court cannot come to a conclusion on basis of evidence.
37. The learned counsel has also produced another decision reported in Chokkammal v. K.Balraj, 2008 (5) CTC 690. In this case, this Court has held that as contemplated under Section 92 of Evidence Act, 1872 (9 of 1872), evidence contrary to written document cannot be adduced.
38. The learned counsel for the seventh respondent has also quoted a legal maxim viz. Qui approbat non reprobat and in this connection he would submit that the plaintiffs could not change and choose their stand to sue their convenience. He has also drawn the attention of this Court to the averments of the pleadings of the plaint as well as the evidence of P.W.1 and would contend that in several aspects the evidence of P.W.1 seemed to be contrary to the pleadings of the plaint and hence the plaintiffs could not be permitted to go beyond their original pleadings and hence he has urged that the plaintiffs cannot approbat one set of facts and reprobat the same facts in another way.
39. In support of his contention, he has placed reliance upon a decision reported in Mumbai International Airport Private Limited vs. Golden Chariot Airport and Another, (2010) 10 SCC 422. In this case, a question was arisen before the Division Bench of the Hon'ble Supreme Court of India that "Is an action at law a game of chess? Can a litigant change and choose its stand to suit its convenience and prolong a civil litigation on such prevaricated pleas?" The Division Bench of the Apex Court, after referring to the decision Tinkler v. Hilder, (1849) 4 Exch 187 and held that "where a party had received a benefit under an order, it could not claim that it was valid for one purpose and invalid for another".
40. The learned counsel for the seventh defendant has also argued that mere marking of documents is not sufficient to establish one's case and that the person, who sought to mark a particular document, he must take utmost care to prove the document with clinching and impeccable evidence. He has also added that Ex.A1, death extract pertaining to Sadaya Counder has not been proved conclusively. In support of his contention, he has also placed reliance upon a decision reported in L.I.C. of India and Another vs. Ram Pal Singh Bisen, 2010 (3) MWN (Civil) 442.
41. Finally it is manifest that appeal in respect of the respondents 2 to 5 has been abated for the failure of the plaintiffs in bringing the legal representatives of the deceased respondents 2 to 5. In this regard, this Court finds that it may be relevant to refer the proviso to Rules 1, 2, 3 and 4(4) of Order XXII of the Code of Civil Procedure. Rule 1 of Order XXII of the Code of Civil Procedure reads as follows:
R.1. No abatement by party's death, if right to sue survives.- The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives.
R.2. Procedure where one of several plaintiffs or defendants dies and right to sue survives.- Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
R.3. Procedure in case of death of one of several plaintiffs or of sole plaintiff.-
(1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned, and on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.
R.4. Procedure in case of death of one of several defendants or of sole defendant.-
(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place.
42. In this connection, the learned counsel for the seventh respondent has also placed reliance upon a decision in Budh Ram and others vs. Bansi and others, 2010 (3) MWN (Civil) 570. In this case, the Division Bench of the Apex Court has held in Paragraph Nos.12, 13 and 19 as follows: "12. Abatement takes place automatically by application of law without any order of the Court. Setting aside of abatement can be sought once the Suit stands abated. Abatement in fact results in denial to hearing of the case on merits. Order 22, Rule 1, C.P.C. deals with the question of abatement on the death of the Plaintiff or of the Defendant in a Civil Suit. Order 22, Rule 2 relates to procedure where one of the several Plaintiffs or the Defendants die and the right to sue survives. Order 22, Rule 3, C.P.C. deals with procedure in case of death of one of the several Plaintiffs of or the sole Plaintiff. Order 22, Rule 4, C.P.C., however, deals with procedure in case of death of one of the several Defendants or of the sole Defendants. Sub-clause (3) of Rule 4 makes it crystal clear that where within the time limited by law, no Application is made under sub-rule (1), the Suit shall abate as against the deceased Defendant.
13. Provisions of Order 22, Rule 4(4), C.P.C., provide that in case, the deceased Defendant did not contest the Suit and did not file a Counter Affidavit, the substitution may not be warranted. In the instant case, the High Court repelled the submission regarding application of Order 22, Rule 4(4), C.P.C., on the ground that the said provision requires the presentation of an Application before the Court, before it pronounces its judgment for seeking such a relief and once such an Application is allowed, in that case, it can only be taken against the said Defendant notwithstanding the death of such Defendant and such a decree shall have the same force and effect as if it was pronounced before the death had taken place. This view stands fortified by the Judgments of this Court in Zahirul Islam v. Mohd.Usman & Ors., 2003 (1) CTC 184 (SC) : 2003 (1) SCC 476; and T.Gnanavel v. T.S.Kanagaraj & Anr., AIR 2009 SC 2367. Thus, it has rightly been held by the High Court that the provisions of Order 22, Rule 4(4), C.P.C. were not attracted in the facts of this case. ..........
19. Therefore, the law of the issue stands crystallised to the effect that as to whether non-substitution of L.Rs. of the Defendants/Respondents would abate the Appeal in toto or only qua the deceased Defendants/Respondents, depend upon the facts and circumstances of an individual case. Where each one of the parties has an independent and distinct right of his own, not inter-search dependent upon one or the other, nor the parties have conflicting interests inter se, the Appeal may abate only qua the deceased Respondent. However, in case, there is a possibility that the Court may pass a decree contradictory to the decree in favour of the deceased party, the Appeal would abate in toto for the simple reason that the Appeal is a continuity of Suit and the law does not permit two contradictory decrees on the same subject matter in the same Suit. Thus, whether the judgment/decree passed in the proceedings vis-a-vis remaining parties would suffer the vice of being a contradictory or inconsistent decree is the relevant test."
43. On coming to the instant case on hand, the respondents 2 to 5 have actually participated in trial and only during the pendency of the appeal they had passed away. But, the plaintiffs have miserably failed to bring the legal representatives on record in time. In this connection, it would be more appropriate to make a mention here that the first plaintiff has gone upto Supreme Court and ultimately he was not able to succeed, which resulted, the non-inclusion of the legal heirs of the deceased respondents 2 to 5 herein. On account of acquise on the part of the plaintiffs, the abatement in respect of the deceased respondents automatically takes place.
44. This Court has carefully considered the Judgment of the Trial Court and the evidences both oral and documentary as well. On considering the submissions made on behalf of the plaintiffs and the defendants, this Court is of considered view that the Judgment and decree of the Trial Court does not suffer from any infirmity.
45. In the result, this appeal is dismissed and the Judgment and Decree dated 10.05.1988 and made in O.S.No.549 of 1984, on the file of the learned Sub-ordinate Judge and Second Additional Sub-Judge (in-charge), Coimbatore is confirmed. Consequently, connected miscellaneous petitions are closed. Taking into consideration of the relationship of the parties to the appeal, there is no order as to costs.
1.The learned Sub-ordinate Judge
and Second Additional Sub-Judge (in-charge),
2.The Section Officer,
V.R.Section, Madras High Court,