(Prayers: A.S.No.589 of 1994: Appeal under Section 96 of the Civil Procedure Code, against the judgment and decree of the Principal Subordinate Judge, Coimbatore, made in O.S.No.110 of 1991, dated 5.4.1994.
CMP No.10569 of 1996: Petition under Section 107(2), CPC, to direct that the date of filing of the suit wrongly shown as 18.1.1974 in the decree be corrected as 28.1.1991.
CMP No.17037 of 2000: Petition under Order 41, Rule 27, CPC, to receive as additional evidence, document marked Ex.A, registration copy of Partition Deed dated 6.2.1970, Document No.1719 of 1970 and Document marked Ex.B, registration copy of purchase document dated 15.12.1962, Document No.1927 of 1962.
CRP No.3542 of 2000: Revision petition under Section 115 of the Civil Procedure Code, to set aside the order dated 27.10.2000 passed by the learned Subordinate Judge in E.P.No.97 of 2000 in I.A.No.1338 of 1995 in O.S.No.110 of 1991 in the Court of Subordinate Judge, Coimbatore and dismiss the aforesaid E.P.No.97 of 2000 as not maintainable.)
Common Judgment
1. The First Appeal A.S.No.589 of 1994 is filed by defendants 2 to 5 challenging a judgment and decree passed on 5.4.1994 in O.S.No.110 of 1991 on the file of the Principal Sub Court, Coimbatore, in favour of the plaintiffs, (i) declaring that the plaintiffs are the absolute owners of the suit schedule properties (ii) cancelling the Settlement Deed and the Trust Deed dated 25.2.1970 (iii) directing recovery of possession of the properties to the plaintiffs (iv) directing the defendants to render accounts and (v) ordering an inquiry into mesne profits. After the decree, the plaintiffs filed an application in I.A.No.1338 of 1995 on the file of the Trial Court, praying for determination of the mesne profits. The Trial Court determined the mesne profits payable as Rs.10,77,772/- for the period from 1974 to 1996. In pursuance of the said order passed on 15.3.1996 in I.A.No.1338 of 1995, the plaintiffs filed an Execution Petition in E.P.No.97 of 2000. In the Execution Petition, the objections of the judgment-debtors were overruled and an order of attachment was passed on 26.10.2000. Therefore, challenging the said order of attachment passed in the Execution Petition, the defendants 2 to 5 (judgment-debtors) have also filed a revision petition in CRP No.3542 of 2000.
2. In the first appeal, the appellants have taken out 2 miscellaneous petitions C.M.P.Nos.10569 of 1996 and 17037 of 2000. While the former is for correcting the date of filing of the suit from 18-1-1974 to 28-1-1991 in the decree, the latter is under Order 41, Rule 27, CPC, for reception of additional evidence. Therefore, the First Appeal, the miscellaneous petitions and the Civil Revision Petition arising out of the order of attachment passed by the Executing Court, were all taken together for disposal.
3. I have heard Mr.T.V.Ramanujun, learned Senior Counsel for the appellants and Mr.T.R.Rajagopalan, learned Senior Counsel for the respondents.
4. The suit O.S.No.110 of 1991, out of which the above first appeal arises, was filed by one Sengammal and her son N.Srinivasan, against one N.Arivudai Nambi (step-brother of N.Srinivasan) and his wife and children. The prayer in the suit was for (i) a declaration that the plaintiffs are the absolute owners of suit 'A' schedule properties (ii) cancellation of a Trust Deed dated 25.2.1970 and a Settlement Deed dated 25.2.1970 (iii) delivery of possession of plaint 'A' schedule properties and (iv) rendition of accounts for the income derived from the properties from 1956 till the date of delivery of possession.
5. The second plaintiff N.Srinivasan died after the institution of the suit and his wife and two children were brought on record as plaintiffs 3 to 5, by order dated 7.2.1992. The first defendant also died after the institution of the suit, but his wife and children were already parties to the suit.
6. The averments contained in the plaint in O.S.No.110 of 1991, in brief, are as follows:-
(i) One Mr.T.K.Narayanaswamy Iyer was a Banker and Agriculturist at Mettupalayam. He had 2 acres of wet land in Thiruvaiyar as ancestral property. He acquired considerable properties in and around Mettupalayam.
(ii) The said T.K.Narayanaswamy Iyer had a wife by name Meenakshi. Through his first wife, he had a son by name N.Arivudai Nambi. He was the first defendant in O.S.No.110 of 1991. When he was a child, his mother (first wife of T.K.Narayanaswamy Iyer) died. Therefore T.K.Narayanaswamy Iyer married one Smt.Sengammal, who was the first plaintiff in the suit (first respondent herein). Through her, T.K.Narayanaswamy Iyer had a son by name N.Srinivasan, who was the second plaintiff in the suit. The plaintiffs 3, 4 and 5 were the wife and minor children of the second plaintiff N.Srinivasan.
(iii) T.K.Narayanaswamy Iyer died on 25.1.1945, within 2 years of the birth of the second plaintiff N.Srinivasan, on 25.1.1943. At the time of his death, the first defendant was aged 12 years. Therefore, the properties left behind by Narayanaswamy Iyer, came under the management of the first plaintiff, who was assisted by one A.R. Krishnamurthy Iyer.
(iv) On 23.8.1954, a partition was effected by a registered instrument. But the properties continued under common management. At that time, the first defendant was a major, studying in the Madras Law College. After completion of the law degree, the first defendant took over the possession and management of the properties as well as the banking business of the family in 1956. The second plaintiff was still a minor and the first defendant appointed the aforesaid A.R.Krishnamurthy Iyer as his Manager.
(v) The first defendant brought about another partition on 14.9.1959. But still the management of the properties, assets and the family business continued to be with the first defendant. Even the properties set apart for the second plaintiff, under the said Partition Deed, continued under the control and management of the first defendant. He cultivated the lands, received the income, paid the taxes and dealt with the investments and assets. He had all the documents under his custody and control.
(vi) The second plaintiff completed M.B.B.S. in 1966 and M.S. thereafter and he decided to leave for U.S.A. for higher studies. At that time in 1970, a bill to amend the Madras Land Reforms Act, was introduced to reduce the ceiling limit on the holding of agricultural lands. Therefore, the first defendant represented to the plaintiffs that certain documents were required to be executed for the purpose of keeping the lands out of the reach of the impending legislation.
(vii) Placing trust and confidence in him, the plaintiffs 1 and 2, who were the step-mother and step-brother respectively of the first defendant, affixed their signatures in 2 documents prepared by the first defendant. The contents of the documents were neither read over nor explained to the plaintiffs. The plaintiffs were assured by the first defendant that the documents were only sham and nominal and not intended to be acted upon. They were indeed never acted upon.
(viii) No title was conveyed or passed on under those two documents, one of which was a Trust Deed dated 25.2.1970 and the other a Settlement Deed. The Trust Deed was executed on stamp papers of the value of Rs.3.75. But actually no Trust by name T.K.Narayanaswamy Iyer Family Education Trust ever came into existence. The Trust Deed and the Settlement Deed were sham and nominal and were nothing but an attempt to grab the properties by exploiting the plaintiffs.
(ix) The Settlement Deed was prepared on two stamp papers of the value of Rs.1.25 p. each, though it purported to convey properties worth Rs.44,000/- by the first plaintiff in favour of the second defendant, who was none other than the wife of the first defendant.
(x) Both the documents were nothing but the outcome of a scheme of fraud committed by the first defendant. These documents were brought about by misrepresentation of facts, taking advantage of the impending land legislation. They are null and void. The defendants 2 to 4, who are the wife and children of the first defendant were shown as beneficiaries under the Trust Deed. The second defendant is an accomplice in the act of fraud.
(xi) The first defendant who continued to be in possession and management of the properties, occupied a fiduciary position in relation to the plaintiffs.
(xii) The second plaintiff who went to U.S.A.,returned in October 1970, worked in Pondicherry till January 1972 and returned to and settled down at Coimbatore and started practicing medicine at Coimbatore. Thereafter, the plaintiffs started requesting the first defendant to hand over the properties and assets and to furnish accounts. With great reluctance, the first defendant handed over (1) the garden lands of the extent of 12 acres and 15 cents at Thekkampatti Village, (2) the Arecanut Thope of the extent of about 9 acres and 80-1/2 cents (3) the Nanja land of the extent of acres 4.59 (4) Dry lands of the extent of acre 2.91 in Nellithorai Village and (5) the Fixed Deposit Receipts standing in the name of the plaintiffs. However, the first defendant could not render accounts for the income derived during his management. He was also reluctant to deliver the properties mentioned in plaint schedule 'A'.
(xiii) The first defendant continued to retain reserve forest land of the extent of 7 acres and 56-1/2 cents in Nellithorai Village, belonging to the first plaintiff. He also did not hand over Arecanut and garden lands in Nellithorai and Thekkampatti Villages, measuring acres 13.26. The Arecanut Thope in Nellithorai village measuring acres 1.47 was also not handed over. There was yet another land of the extent of acres 15.13 in Nellithorai Village, in respect of which the first plaintiff and the first defendant were the co-owners. A Tractor with Trailor was also owned jointly by the second plaintiff and the first defendant.
(xiv) The first defendant failed to render accounts. The plaintiffs tentatively value their share of the income from the properties at Rs.5,000/-. Therefore, the plaintiffs sought the various reliefs mentioned in para-4 above.
7. Before proceeding further to examine the written statement filed by the defendants, it is imperative to take note of certain events which took place even prior to the suit being taken on file and getting numbered. They are as follows:-
(i) The plaint in the above suit was actually presented way back on 21.12.1973 in the Sub Court, Coimbatore by Sengammal and her son N.Srinivasan. The plaint contained only a prayer for declaration of title and for recovery of possession of suit 'A' schedule properties. There were no prayer for setting aside the two documents dated 25.2.1970.
(ii) The plaint was returned on 3.1.1974, re-presented on 18.1.1974, returned once again on 30.1.1974, re-presented again on 8.2.1974 and was eventually taken on file and numbered as O.S.No.151 of 1974 on 2.3.1974.
(iii) The written statement of N.Arivudai Nambi and his wife and children (who were defendants 1 to 4) was filed on 24.9.1974. The Trial Court framed 10 issues on 31.10.1974, one of which was as to whether the suit was properly valued or not.
(iv) The issue relating to valuation was taken up as a preliminary issue for trial and an order was passed on 20.9.1976 by the Trial Court, holding that there should be a prayer for cancellation of both the documents dated 25.2.1970 and appropriate court fee paid within 4 weeks.
(v) The plaintiffs filed a revision in CRP No.2976 of 1976 against the said order. But the same was dismissed on 9.9.1977. The Special Leave Petition SLP (Civil) No.465 of 1978 arising out of the said order, was dismissed by the Supreme Court on 14.4.1981.
(vi) In the meantime, the Sub Court, Coimbatore, transferred the records relating to the case, to the District Munsif Court, Coimbatore, in view of an amendment brought forth by Tamil Nadu Act 34 of 1980. The suit was assigned a new number O.S.No.420 of 1981.
(vii) The plaintiffs filed an application in I.A.No.2345 of 1982 in O.S.No.420 of 1981 on the file of the District Munsif Court, Coimbatore, seeking to amend the plaint in conformity with the order of the Sub Court, Coimbatore, dated 20.9.1976, by which a prayer for cancellation of the documents was directed to be included.
(viii) The District Munsif Court rejected I.A.No.2345 of 1982, but this Court allowed the revision petition CRP No.3624 of 1984 arising out of the said order. Thereafter, the plaintiffs paid additional court fees on 24.11.1986 and got the plaint amended, so as to include a prayer for cancellation of the Deeds dated 25.2.1970.
(ix) However, the first defendant N.Arivudai Nambi died on 1.5.1989. Thereafter, the suit was returned by the District Munsif Court to be presented to the Sub Court, in view of the inclusion of an extra prayer and the consequential enhancement of the value of the suit.
(x) At that time, the second plaintiff N.Srinivasan also died on 9.8.1991 and the suit which got presented to the Sub Court, got numbered afresh as O.S.No.110 of 1991.
8. The above narration of events has become necessary, in view of the fact that there is a huge controversy as to whether the plaintiffs paid the deficit court fees in time or not, in pursuance of the order of the Sub Court dated 20.9.1976 and whether the suit was not barred by limitation. I shall deal with these controversies later.
9. As pointed out in the preceding paragraph, the first defendant N.Arivudai Nambi had already filed a written statement on 24.9.1974, when he was alive. But by the time deficit court fee was paid and the suit was re-presented before the Sub Court and renumbered as O.S.No.110 of 1991, he passed away. Therefore, the defendants 2 to 5 filed an additional written statement, after 1991 (after the suit got numbered as O.S.No.110 of 1991 before the Sub Court). In view of this fact, the original written statement filed by the first defendant on 24.9.1974 was marked as an exhibit on the side of the plaintiffs, namely Ex.A-31, in the course of trial.
10. Though the earliest written statement filed by the first defendant on 24.9.1974 subsequently got transformed into an exhibit on the side of the plaintiffs themselves, it is necessary to extract the averments contained therein. Therefore, they are extracted as under:-
(i) It is incorrect to state that T.K.Narayanaswamy Iyer acquired considerable properties, out of the nucleus of 2 acres of ancestral land in Thiruvaiyaru. T.K.Narayanaswamy Iyer's father T.N.Kothandarama Iyer, who himself had settled down at Mettupalayam, left substantial properties. T.K. Narayanaswamy Iyer was a paid Secretary in one Ranga Raja Bank Ltd., at Mettupalayam on a monthly salary of Rs.50/-. He also had money lending transactions. All the transactions were out of the income from the ancestral properties left behind by the grandfather.
(ii) After the demise of T.K.Narayanaswamy Iyer on 25.1.1945, his co-brother by name A.R.Krishnamurthy, who was also the sister's husband of the first plaintiff, was brought to Mettupalayam from Thiruvaiyaru to assist the first plaintiff in the management of the properties.
(iii) On 23.8.1954, the first plaintiff brought into effect, a Partition Deed between the second plaintiff and the first defendant. Under the said Partition, the first plaintiff retained a life interest in a house and the other properties were divided between the second plaintiff and the first defendant. The movables and the money lending transactions were divided into 3 shares.
(iv) Even after the partition, the first plaintiff was at the helm of affairs with the assistance of A.R.Krishnamurthy. The first plaintiff was never docile, but her views always prevailed.
(v) Since T.K.Narayanaswamy Iyer died in 1945, the first plaintiff was not entitled to any share in the entire income from agricultural properties, as all of them were ancestral.
(vi) A partition of the movable properties was done in 1959, in the backdrop of rumours about a land ceiling Act. Under the said partition, the shares given to the first plaintiff were to go to the second plaintiff and to the first defendant in equal shares, after the lifetime of the first plaintiff.
(vii) Despite the said partition, the family was together in mess and worship and the expenses were jointly met. Income from rentals, interest etc., were spent jointly irrespective of the shares of each party. But the income from the agricultural lands, was deposited or invested in the respective accounts.
(viii) The accounts of household expenses were maintained by the first plaintiff and under her direction, by A.R.Krishnamurthy. Whenever this defendant incurred any expenses, he wrote the expenses.
(ix) Cordiality prevailed between the parties from 1945 till 1972 as things were done according to the wishes of the first plaintiff. She was always at the helm of affairs. Even after the re-partition of 1959, A.R. Krishnamurthy continued to function at the behest of the first plaintiff.
(x) When there was a proposal for the amendment of the land reforms laws, the family members discussed various solutions in the presence of A.R.Krishnamurthy. At that time, the first plaintiff was not in good health, the second plaintiff had an offer to work in a hospital in Chicago for 5 to 6 years and the first defendant was hospitalised at Pondicherry for a fracture in his right leg. Therefore, the first defendant decided to effect a partition between him and his minor son, who are defendants 3 and 4. Accordingly, a Partition Deed was executed and registered.
(xi) At that time, the plaintiffs themselves proposed to make some arrangement to avoid the lands going out of the family. As per the proposal, they decided to make a gift of Arecanut Thope of the extent of acres 1.44 to the second defendant and a gift by the first plaintiff of the land of an extent of acres 11.28 and a gift by the second plaintiff of an Arecanut Thope of the extent of acres 1.98 to T.K.Narayanaswamy Iyer Family Education Trust. The beneficiaries of the Trust, were the third and fourth defendants. On account of this arrangement, the first defendant agreed not to press a claim on the first plaintiff's properties after her lifetime.
(xii) The above said family arrangement, entered into with bona fide intentions, was put into effect by way of 3 registered instruments. By one instrument, a Trust was created, by the second, a settlement was made by the first plaintiff in favour of the second defendant and by the third, a settlement was effected by the plaintiffs in favour of the Trust.
(xiii) The rift between the plaintiffs and the first defendant, was due to A.R.Krishnamurthy Iyer and his sons. When one of his sons by name Ganapathy wanted a sum of Rs.20,000/-, for the purpose of settling the dues to his employer who was a film Producer and Director, the first defendant obliged. But when the money was not repaid, the first defendant took steps for recovery, leading to strained relationship between A.R.Krishnamurthy and the first defendant.
(xiv) When A.R.Krishnamurthy and his eldest son Dharmaraj approached this defendant seeking monetary help for Krishnamurthy's daughter's marriage, this defendant told them to get back the loan advanced to K.Sankar to whom the said Dharmaraj was also attached as Assistant in film business. This reply upset Krishnamurthy Iyer and the members of his family and they instigated and engineered the filing of this suit against the defendants to wreak their vengeance. The enemies of the first defendant who cannot get at legally what they wanted had also instigated the plaintiffs to file this suit against the defendants.
(xv) The claim of the plaintiffs that the documents in question were not read over and explained to them, is inconsistent with the claim that the documents were sham and nominal and not intended to be acted upon. All the averments in this regard are false and fraudulent.
(xvi) The documents in question were genuine, true and valid and were intended to be acted upon. They were all written by A.R. Krishnamurthy, who is a close confident of the plaintiffs and who is in their services. The documents were attested by persons known to both parties. One was a respectable Advocate of Coimbatore and the other was Krishnamurthy Iyer.
(xvii) The documents were written on stamp papers readily available at home and the deficit stamp duty was paid in the office of the Sub Registrar. The plaintiffs were fully aware of and alive to the contents of the documents. The parties were assessed to agricultural income tax and they also submitted returns. All the documents both before and after the date of execution of these 3 documents, would indicate that the plaintiffs were fully aware of the contents.
(xviii) The Settlement Deed in favour of the second defendant was executed out of natural love and affection that the first plaintiff had towards her. Having willingly executed the said documents, the first plaintiff seeks to challenge it after 4 years, either due to loss of balance or due to pressure exerted by scheming persons.
(xix) The parties are Income Tax and Wealth Tax Assessees and the accounts have been maintained separately.
(xx) When the plaintiffs went out in 1972 to live separately, they took away the files and the documents, pertaining to the suit properties. Even the Settlement Deeds were taken away by them. Neither the first defendant nor the second defendant is liable to account to the plaintiffs.
(xxi) The first defendant was never in management of the plaintiffs' properties. Therefore, he is not liable to render any accounts.
(xxii) The plaintiffs cannot ignore the 3 documents in question, without a prayer to set aside the documents. The suit without a prayer to set aside the documents and without properly valuing the reliefs and paying the court fee, is not maintainable.
11. In the additional written statement filed by the defendants 2 to 5, after the suit got numbered afresh in 1991, they raised the following contentions:-
(i) The suit as originally framed, did not contain a prayer for cancellation of the 3 documents in question, as the plaintiffs thought that the question of limitation would stare at them. But after the Court overruled their claim on the preliminary issue and the same got confirmed upto the Supreme Court, the plaintiffs sought to include a prayer for cancellation of the Deeds. The application for amendment to this effect was rejected by the Trial Court, but the same was allowed by the High Court in a Civil Revision Petition, on an erroneous impression that the deficit court fee had already been paid. But it had not been paid. The deficit court fee was paid only later.
(ii) Since the prayer for cancellation of the 3 documents was made only subsequently and that too by way of amendment, the question of limitation has to be decided only with reference to the date of amendment and not with reference to the date of institution of the suit.
(iii) The delay of more than 12 years on the part of the plaintiffs in seeking cancellation of the documents, has prevented the defendants from making any improvements.
12. On the above pleadings, the Trial Court framed the following issues:-
(i) Whether the plaintiffs are entitled to the reliefs of declaration and possession ?
(ii) Whether the plaintiffs are entitled to rendition of accounts by the defendants, in respect of suit 'A' schedule properties ?
(iii) Whether the Trust Deed and Settlement Deed dated 25.2.1970 are liable to be cancelled, for the reasons stated in the plaint ?
(iv) Whether the suit is barred by limitation ?
(v) Whether it is true that the first defendant took over into his possession and management, all the family properties, with effect from 1956 ?
(vi) Whether the plaintiffs are entitled to any other reliefs?
13. The first plaintiff Sengammal examined herself as PW-1. Her step-daughter Madhuram (biological sister of first defendant) was examined as PW-2. 31 documents were marked as exhibits on the side of the plaintiffs. The first appellant who was the second defendant in the suit, was examined as DW-1 and 22 documents were marked as exhibits on the side of the defendants.
14. On issue No.3, the Trial Court held that the Trust Deed and Settlement Deed dated 25.2.1970, marked as exhibits A-15 and A-16, were liable to be set aside. On issue No.4, relating to limitation, the Trial Court held that the suit was instituted within the period of limitation, in as much as the parties lived together till 1972 and the suit was instituted in 1974. On issue No.1, the Trial Court held that the plaintiffs are entitled to a declaration that they are the absolute owners of the suit 'A' schedule properties. On issue No.2, the Court held that the plaintiffs are entitled to accounts from the defendants. On issue No.5, it was held that even after the partition, the first defendant was in direct management and control of the properties. Consequently, the Court held on issue No.6 that the plaintiffs are entitled to (i) a declaration of title in respect of suit 'A' schedule properties (ii) cancellation of the Settlement Deed and the Trust Deed dated 25.2.1970 and (iii) rendition of accounts. In so far as mesne profits are concerned, the Court relegated the same to a separate enquiry under Order XX, Rule 12, CPC. Accordingly, the Trial Court decreed the suit as prayed for, by a judgment dated 5.4.1994.
15. Aggrieved by the said judgment and decree of the Principal Sub Court, Coimbatore, dated 5.4.1994, the defendants 2 to 5 have filed the above appeal. Though the appellants have raised various contentions in their memorandum of grounds of appeal, all of them can be grouped together under the following heads:-
(i) The consequence of non-payment of deficit court fees, as per the earliest order dated 20.9.1976, passed by the Sub Court, Coimbatore, in the light of Order VII, Rule 11, CPC.
(ii) The question of limitation in the light of Article 59 under the Schedule to the Limitation Act.
(iii) The validity, the binding nature or otherwise of the Trust Deed and Settlement Deed dated 25.2.1970 filed as Exx.A-15 and A-16.
(iv) The entitlement of the plaintiffs to declaratory and possessory reliefs in respect of suit 'A' schedule properties and
(v) The entitlement of the plaintiffs to a decree for accounts.
16. Therefore, from the memorandum of grounds of appeal and the arguments advanced by the learned Senior Counsel appearing on both sides, the following points arise for determination in the above appeal:-
(i) Whether the plaint ought to have been rejected in terms of Order VII, Rule 11, CPC, after the failure of the plaintiffs to pay the deficit court fees in terms of the order dated 20.9.1976 ?
(ii) Whether the prayer for cancellation of the Trust Deed and Settlement Deed dated 25.2.1970 filed as Exx.A-15 and A-16, was barred by limitation ?
(iii) Whether the Trust Deed and Settlement Deed dated 25.2.1970 filed as Exx.A-15 and A-16, were brought forth by fraud or misrepresentation and whether they were sham and nominal and never acted upon ?
(iv) Whether the plaintiffs are entitled to declaratory and possessory reliefs in respect of suit 'A' schedule properties and
(v) Whether the plaintiffs are entitled to a decree for accounts ?
Point No.1- Non-Payment of deficit court fees in time:
17. The first and foremost contention of the appellants is that the plaint as it was originally filed in 1974, did not contain a prayer for cancellation of the Trust Deed and Settlement Deed dated 25.2.1970. Therefore, after pleadings were completed, 8 issues were framed. The eighth issue was as to whether the suit was properly valued and whether proper court fee had been paid or not. This issue was raised on the ground that though there was no prayer for cancellation of these two documents, the entire fulcrum of the case of the plaintiffs rested upon the validity and binding nature of these two documents. This issue was taken up as a preliminary issue by the Trial Court and an order was passed on 20.9.1976, holding that the reliefs were not properly valued and directing the plaintiffs to pay deficit court fee, within 4 weeks. This order was challenged by the plaintiffs by way of a revision before this Court. But the revision was dismissed and the Special Leave Petition filed against the order of this Court was also dismissed. In the interregnum, the time for payment of deficit court fee expired and there was not even a petition for extension of time. To get over this, the plaintiffs filed an application for amendment, so that they could include a prayer for cancellation of the documents and upon the same being allowed, they could also pay the deficit court fees. But the Trial Court dismissed the application for amendment. However, this Court allowed the revision arising out of the said order and permitted amendment, under the mistaken impression that the deficit court fee had already been paid. Taking advantage of this, the plaintiffs paid deficit court fees on 28.2.1990, long after the expiry of the time granted for payment. Therefore, in these circumstances, the appellants claim that the plaint should have been rejected by the trial court under Order VII, Rule 11 (b), CPC.
18. To substantiate the above contentions, the plaintiffs have now filed (i) the certified copy of the original plaint as it was filed in the year 1974, together with all the docket entries from 31.10.1974 upto 9.8.1990 (ii) the order dated 20.9.1976 passed by the Sub Court on the preliminary issue (iii) the order dated 9.9.1977 passed in CRP No. 2976 of 1976 (iv) the order dated 14.4.1981 passed in SLP (Civil) No.465 of 1978 (v) the order dated 15.9.1982 passed in the application for amendment I.A.No.2345 of 1982 (vi) the order dated 4.5.1985 passed in CRP No.3624 of 1984 (vii) the order dated 9.8.1990 passed by the First Additional District Munsif, directing the return of the plaint for presentation to the proper Court (viii) the order dated 29.8.1990 passed by the same District Munsif, reviewing the earlier order dated 9.8.1990 and directing the return of the plaint in terms of Order VII, Rule 10A, CPC and (ix) the copy of the amended plaint filed on 29.1.1991.
19. It is relevant to note here that none of the above documents was marked in evidence before the Trial Court. Nevertheless, all of them are nothing but orders passed by the Trial Court or this Court or the Apex Court in the very same proceedings and all of them are matters of record. There is no dispute about the contents of these documents.
20. The above set of documents disclose the following undisputed facts:-
(i) The plaint was presented, returned, re-presented and taken on file and numbered in March 1974. By 9.7.1974, the defendants were served with suit summons. On 24.9.1974, the first defendant filed a written statement and on 31.10.1974, 10 issues were framed. The eighth issue was as to whether the suit was properly valued or not.
(ii) On 31.10.1974, the Court posted the case to 30.1.1975 for trial. Thereafter, it was adjourned from time to time and arguments were heard on 9.9.1976 on the question as to whether issue No.8 should be tried as a preliminary issue.
(iii) On 14.9.1976, the Trial Court passed orders to the effect that issue No.8 will be taken up as a preliminary issue on 16.9.1976. On 16.9.1976 and 17.9.1976, arguments were heard on issue No.8.
(iv) On 20.9.1976, the Trial Court passed an order, the operative portion of which reads as follows:-
"There is no patent infirmity in the documents which would render the same ab initio null and void and that in the circumstances the documents are obstacles to the relief of declaration claimed by the plaintiff. When the plaintiffs have pleaded partition of the properties in 1959 and have claimed possession of other items of properties thereunder in the circumstance that the plaintiffs seek delivery of plaint 'A' schedule properties from the defendants it is difficult not to presume that possession of the same had gone to them under the Trust and Settlement Deeds. Therefore, in spite of the profuse allegations in the plaint that the Deeds are sham and nominal and were not intended to be acted upon, the reliefs asked for cannot be granted without the Deeds being cancelled. I therefore find that proper court fees has not been paid and that the plaintiffs' suit ought to be valued under Section 40 of the Court Fees Act, for cancellation of the documents. Time for payment of Court Fees 4 weeks".
(v) The Civil Revision Petition CRP No.2976 of 1976 was dismissed by Mr. Justice A.Varadarajan, as he then was, by an order dated 9.9.1997. The operative portion of the order reads as follows:-
"Therefore, I hold that the Court Fee is payable in respect of this prayer under Section 40 of the Court Fees Act, as found by the learned Subordinate Judge. The Civil Revision Petition is therefore dismissed with costs."
It is relevant to note that while dismissing the Civil Revision Petition, no time limit was either sought or granted for payment of deficit court fees.
(vi) The order of this Court in CRP No.2976 of 1976 attained finality with the Apex Court dismissing, by an order dated 14.4.1981 SLP (Civil) No.465 of 1978.
(vii) There is no dispute about the fact that the plaintiffs did not seek any enlargement of time for payment of deficit court fees, either after the dismissal of the CRP or after the dismissal of the SLP. However, the plaintiffs adopted an ingenious method, by filing an application in I.A.No. 2345 of 1982. This petition was filed under Order VI, Rule 17, CPC, praying for permission to carry out amendments to the plaint. The amendments sought were, (i) to include a prayer for cancellation of the Trust Deed and Settlement Deed (ii) to modify the portion of the plaint relating to valuation and court fee (iii) to include the market value of the property covered by the Trust Deed and the Settlement Deed and (iv) to include two prayers in para XXIII of the plaint.
(viii) Apparently, I.A.No.2345 of 1982 was filed only on 15.9.1982, after about 17 months of the dismissal of the SLP. Upto the date of filing of I.A.No.2345 of 1982, the deficit court fee had not been paid, as seen from the averments made by the second plaintiff in paragraphs 3 and 4 of the affidavit in support of I.A.No.2345 of 1982. These paragraphs read as follows:-
"3. We have been ordered on the issue relating to court fee we should seek the relief of cancellation of the impugned Settlement Deed and Trust Deed dated 25.2.1970. The plaint has to be accordingly amended to enable us to pay the requisite court fees.
4. We therefore crave leave to amend the plaint seeking the necessary relief of cancellation and to pay the requisite court fee. On the amendment being allowed, we shall immediately pay the requisite court fee due on the amended plaint."
(ix) It is pertinent to note here that the order dated 20.9.1976 passed by the Trial Court on issue No.8, which got confirmed upto the Supreme Court, did not talk about any necessity for amendment of pleadings. All that the Court ordered was to value the very declaratory relief sought by the plaintiffs, under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, instead of under Section 25(a). Therefore, the plaintiffs were not required either to seek amendment or to carry out any amendment, for paying deficit court fees. Moreover, the application for amendment, which was actually filed as a ruse to get over the failure to pay deficit court fees in time, was filed after 17 months of the dismissal of the SLP.
(x) But unfortunately, losing sight of the above fact, the Trial Court dismissed I.A.No.2345 of 1982 by an order dated 12.7.1984, simply and solely on the ground that the amendment sought to be made, would change the character of the suit. While dealing with I.A.No. 2345 of 1982, the Trial Court ought to have actually focused on the issue of non-payment of deficit court fees in time, rather than focusing on the usual parameters on which a routine application for amendment would be considered.
(xi) In the Civil Revision Petition CRP No.3624 of 1984, arising out of the dismissal of I.A.No.2345 of 1982, this Court fell into an error in thinking that the deficit court fee had already been paid. Therefore, this Court felt that the amendment for an additional prayer should be allowed, especially when the court fee for including such a prayer had already been paid. The fact that this Court fell into such an error, is apparent from the order dated 4.5.1985 by which CRP No.3624 of 1984 was allowed. Since the first and foremost issue raised in this appeal, revolves around this question, it is necessary to extract the order passed in CRP No.3624 of 1984 as follows:-
"It is seen from the prior proceedings between the parties, which went upto the Supreme Court in S.C.L. (Civil) No.465 of 1977 that the petitioners were obliged to pay Court fee with reference to the cancellation of a Trust Deed as well as Settlement Deed dated 25.2.1970 though the petitioners persisted their objection that it is really not necessary for them to pay for the relief of cancellation. Not having succeeded in that, the petitioners having paid the court fee, naturally wanted the relief to be amended to include one for the cancellation of the Trust Deed as well as the Settlement Deed. The Court below had dismissed the application filed by the petitioners for an amendment of the plaint on the ground that the amendment if allowed will alter the character of the suit. I do not see how the amendment praying for a relief in respect of which court fee had already been paid by the petitioners would in any manner alter the character of the suit. The order of the Court below cannot, therefore, be sustained, and it is hereby set aside. This Civil Revision Petition, is allowed and the plaint will stand as amended by the petitioners."
21. A reading of the above order would show that this Court proceeded under the wrong impression that the deficit court fee had already been paid. But that it was not so, is borne out by two facts viz., (i) the averments in paras 3 and 4 of the affidavit in support of I.A.No.2345 of 1982 and (ii) the memorandum of grounds of civil revision petition. In ground No.3 of the memo of grounds of civil revision in CRP No.3624 of 1984, the plaintiff themselves contended that they could not pay the deficit court fee without getting the prayer amended.
22. Though the Civil Revision Petition was allowed on 4.5.1985, on the impression that the deficit court fee had already been paid, the docket entries in the original plaint disclose that the additional court fee was actually paid on 24.11.1986. Even thereafter, a balance of Rs.429.25 appears to have fallen deficit. Therefore, by order dated 5.2.1990, the Trial Court granted time till 15.2.1990 for payment of only that portion of the balance of court fee viz., Rs.429.25. From the docket entries made on 15.2.1990 and 28.2.1990, it appears that this amount was also not paid on or before 15.2.1990 and there was also no extension of time. However, on 28.2.1990, the Court recorded payment of balance of court fee.
23. In the backdrop of the above sequence of events, if we look at Order VII, Rule 11, CPC, it is seen that under Clause (b), a plaint is liable to be rejected "where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so". The proviso to Order VII, Rule 11, CPC, makes things more difficult for persons who fail to correct the valuation and/or to pay the requisite court fees. The proviso reads as follows:-
"Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court , for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff".
24. The time fixed by the Trial Court by its order dated 20.9.1976 for correction of the valuation of the relief of declaration and for payment of additional court fee, was never extended by any order passed by any Court. It is true that as against the order dated 20.9.1976, a revision was filed before this Court in CRP No.2976 of 1976 and the same was admitted and an interim stay granted by this Court in the first instance. The stay continued till the dismissal of the revision petition on 9.9.1977. As against the order in the revision petition, SLP (Civil) No.465 of 1978 was filed and it appears that the Supreme Court granted stay on 22.2.1978 in CMP No. 1496 of 1978. This is borne out by the docket entry made in the original plaint by the Trial Court on 28.2.1978. The stay granted by the Supreme Court continued till the dismissal of the SLP on 14.4.1981.
25. Therefore, even assuming without admitting that the time limit of 4 weeks granted by the Trial Court on 20.9.1976 for payment of additional court fees stood suspended (or stayed) by the orders of this Court and the Supreme Court, the same did not continue beyond 14.4.1981, the date of dismissal of the Special Leave Petition. Therefore, as rightly contended by Mr.T.V.Ramanujun, learned Senior Counsel for the appellants, the plaintiffs could have paid the additional court fees at least within 4 weeks from 14.4.1981, the date of dismissal of the SLP. But unfortunately, the plaintiffs did not do so. On the contrary, they came up with an application for amendment in I.A.No.2345 of 1982 on 15.9.1982, as though amendment was a pre-requisite for payment of additional court fees. Therefore, it is very obvious that the occasion for invocation of the provisions of Order VII, Rule 11(b) and the proviso thereunder had arisen at least within 4 weeks of the disposal of the Special Leave Petition on 14.4.1981.
26. A contention was raised that the order passed in CRP No.3624 of 1984 had attained finality and that in pursuance of the said order, an amendment was carried out and additional court fee was also paid. Therefore, it was contended that the clock cannot be put back and it is too late to seek to rectify the mistake.
27. But in my considered view, no act of a Court can prejudice anyone. A perusal of the order passed in CRP No.3624 of 1984 makes it clear that this Court was led to believe that additional court fee had already been paid. The plaintiffs who were conscious of the factum of non-payment of additional court fees, did not bring this mistake to the notice of this Court. On the other hand, they kept silent and reaped a benefit, which was not intended to be conferred upon them, contrary to facts.
28. The method adopted by the plaintiffs to pay the additional court fee, cannot also be accepted as proper. If the plaintiffs had not filed an application for amendment in I.A.No.2345 of 1982, they could never have had an opportunity to pay the additional court fee at all, in view of the long efflux of time from 20.9.1976, the date on which the order for payment of deficit court fee was made. In fact, the order dated 20.9.1976 made it clear that the very declaratory relief sought by the plaintiffs had to be valued under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. The order of the Trial Court dated 20.9.1976 was not one which merely declared the plaintiffs as disentitled to a decree of declaration, without a prayer for cancellation of the Trust Deed and Settlement Deed. What the Court actually said was that the relief of declaration would not fall under Section 25(a), but would fall under Section 40. Therefore, the application for amendment filed by the plaintiffs, was nothing but a ruse to get over their deficiency in not paying the deficit court fees on time.
29. The order passed in CRP No.3624 of 1982 cannot go to the rescue of the plaintiffs, since it cannot be taken to have enlarged the time granted for payment of deficit court fees. The said order proceeded to confer upon the plaintiffs, a consequential benefit arising out of payment of deficit court fees. In other words, this Court allowed the amendment as a consequence of payment of additional court fee. But what happened was just the reverse. The plaintiffs got the benefit of payment of additional court fees as a consequence of the amendment, thereby juxtaposing the cause and the consequence. Therefore, prima facie, it appears that the Trial Court ought to have rejected the plaint under Order VII, Rule 11 (b) and the proviso thereunder.
30. However, Mr.T.R.Rajagopalan, learned Senior Counsel for the respondents/plaintiffs, raised three contentions in response. They are (i) that the entire plaint proceeded on the basis that the Trust Deed and Settlement Deed in question were sham and nominal documents, never intended to be acted upon and were never acted upon and hence the question of seeking to set aside these documents did not arise at all (ii) that the issue relating to court fee, raised as issue No.8 in the earliest instance, was not framed and pursued as an issue later and (iii) that once the Court came to the conclusion that the documents in question were sham and nominal, the order passed on the issue of court fee would cease to have a bearing on the trial of the case.
31. In support of his contention that the plaintiffs were not obliged to seek cancellation of the documents, when the documents are alleged to be sham and nominal, the learned Senior Counsel relied upon the following decisions:-
(i) Sahul Hameed Rowther vs. K.C.P.Mohideen Pichai {AIR (35) 1948 Madras 451}.
(ii) Sree Meenakshi Mills Ltd vs. Commissioner of Income Tax, Madras {AIR 1957 SC 49}.
(iii) Kalwa Devadattam vs. Union of India {AIR 1964 SC 880}.
(iv) Prem Singh vs. Birbal {2006 (5) SCC 353}.
32. In Sahul Hameed Rowther, a suit was filed for a declaration that a Sale Deed executed by the plaintiff in favour of the defendant, was sham and nominal. The District Munsif held that the suit should have been valued and court fee paid on the basis as though the plaintiff was asking for cancellation of the Sale Deed. The question that came up for consideration before the Division Bench of this Court was as to whether it was necessary for the plaintiff to pray for cancellation of the Sale Deed, when his allegation was that the document was sham and nominal. For deciding the issue, the Bench took note of the test laid down by Wadsworth, J., in ILR 1940 Mad. 73 to the effect that when the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction, then quite clearly he must get that obstruction declared void in toto.
33. But unfortunately for the respondents, the above decision of the Division Bench in Sahul Hameed Rowther, had already been taken note of by A.Varadarajan, J., while dismissing CRP No.2976 of 1976, arising out of the order of the trial Court dated 20.9.1976 on the issue of valuation and court fee. Therefore, I am not today entitled to come to a different conclusion, on the basis of the very same decision of the Division Bench, to which the parties to this appeal were the parties.
34. In Sree Meenakshi Mills, the Supreme Court pointed out the distinction between a benami transaction and a sham transaction, in paragraph 30 of the report, as follows:-
"The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer resulting in the vesting of title in the transferee, in the latter there is none such, the transferor continuing to retain the title notwithstanding the execution of the transfer deed. It is only in the former class of cases that it would be necessary when a dispute arises as to whether the person named in the deed is the real transferee or B, to enquire into the question as to who paid the consideration for the transfer, X or B. But in the latter class of cases, when the question is whether the transfer is genuine or sham, the point for decision would be, not who paid the consideration but whether any consideration was paid."
35. In Kalwa Devadattam, the Supreme Court held that the mere execution of a Deed is not decisive of the question whether it was intended to be effective. If the person executing the document had continued to be in management of the property and the circumstances surrounding the execution of the document show a different intention, the transaction would be a nominal one, never intended to be given effect to.
36. In Prem Singh, the Supreme Court pointed out in para 16 that "when a document is valid, no question arises of its cancellation" and that "when a document is void ab initio, a decree for setting aside the same would not be necessary, as the same is non est in the eye of law".
37. Though these decisions relied upon by the learned Senior Counsel for the respondents support the contention that there is no necessity for a person to seek cancellation of a document which is assailed either as sham and nominal or as void ab initio, I do not think that I can proceed on that basis in this case. The original order of the Trial Court dated 20.9.1976, holding that the declaratory relief sought by the plaintiffs tantamounted to a prayer for cancellation of the two documents, has attained finality between the parties, with this Court and the Supreme Court affixing the seal of approval. Therefore, it is not possible for me to hold that since the transactions were assailed as sham and nominal, the question of seeking to set aside the same would not arise and that consequently, the non payment of deficit court fees within the time fixed by the Court, can be ignored. Hence, the first defence raised by the learned Senior Counsel for the respondents cannot be sustained, as my hands are tied by the previous orders.
38. The second defence taken by the respondents is that though the issue of valuation was raised in the first instance as issue No.8, the same was not framed as one of the issues when O.S.No.110 of 1991 was taken up for trial. Therefore, according to the respondents, the issue of court fee did not arise for consideration at all in the course of the trial of O.S.No.110 of 1991, so as to enable this Court to deal with the same.
39. As I have pointed out earlier, the suit was instituted in the year 1974 on the file of the Sub Court, Coimbatore. It was numbered as O.S.No. 151 of 1974. After service of summons, the first defendant filed a written statement on 24.9.1974. Thereafter, the Court framed 10 issues on 31.10.1974. Those issues are as follows:-
(i) Have the plaintiffs title to 'A' schedule property?
(ii) Is Trust Deed dated 25.2.1970, true, valid and effective?
(iii) Is the Settlement Deed dated 25.2.1970 true, valid and acted upon?
(iv) Whether the plaintiffs are entitled to rendition of accounts?
(v) Whether the plaintiffs are entitled to a share?
(vi) Whether the plaintiffs are entitled to declaration and possession in respect of 'A' schedule property?
(vii) Are the Settlement Deeds true and valid and not vitiated by fraud and misrepresentation?
(viii) Whether the suit has not been properly valued?
(ix) Whether the suit is barred by limitation?
(x) To what relief?
40. However, after the first round of battle revolving around the issue of court fee went upto the Supreme Court and came to rest in 1990 with the payment of additional court fees, the suit got transferred to the Principal Sub Court, Coimbatore and numbered as O.S.No.110 of 1991. After the transfer, there was actually no occasion for the Trial Court to frame issues, as issues had already been framed on 31.10.1974 and one issue had even been decided as a preliminary issue. But unfortunately, the Trial Court, after renumbering the suit in 1991, framed issues afresh. These issues were:-
(i) Whether the plaintiffs are entitled to the reliefs of declaration and possession ?
(ii) Whether the plaintiffs are entitled to rendition of accounts by the defendants, in respect of suit 'A' schedule properties ?
(iii) Whether the Trust Deed and Settlement Deed dated 25.2.1970 are liable to be cancelled, for the reasons stated in the plaint ?
(iv) Whether the suit is barred by limitation ?
(v) Whether it is true that the first defendant took into his possession and management, all the family properties, with effect from 1956 ?
(vi) Whether the plaintiffs are entitled to any other reliefs?
41. Thus it is seen that the issue relating to court fee was not one of the issues that was taken up for consideration during the trial. In other words, the parties went to trial only on the 6 issues listed in the preceding paragraph and not on the issue as to whether the deficit/additional court fee was paid within time and as to whether the plaint became liable for rejection under Order VII, Rule 11(b) or not. Therefore, I think the respondents are right in their contention that the non payment of deficit court fee within time and the consequential implications arising under Order VII, Rule 11 CPC, could no more be invoked against the plaintiffs, after the parties had gone to trial on all other issues except this.
42. Order XIV, Rule 1(3) mandates that every material proposition affirmed by one party and denied by the other, shall form the subject of a distinct issue. Sub Rule (5) of Rule 1 of Order XIV, obliges the Court -
(i) after reading the plaint and the written statement
(ii) after examination under Order X, Rule 2 and
(iii) after hearing the parties or their pleaders,
toascertain upon what material propositions of fact or of law, the parties are at variance. Thereafter, the Court is obliged to frame and record the issues on which the right decision of the case appears to depend. In other words, a duty is cast both upon the Court and upon the parties to point out the material propositions of fact or of law, on which the parties are at variance, so that issues could be framed on the basis of those propositions.
43. Order XIV, Rule 3 enables the Court to frame issues from out of (i) allegations made on oath by the parties (ii) allegations made in the pleadings and (iii) the contents of the documents produced by either party. The Court has the power even to examine witnesses or documents before framing issues, by virtue of Rule 4. Under Rule 5 of Order XIV, as substituted by Act 22 of 2002, the Court has the power (i) to amend the issues (ii) to frame additional issues and (iii) to strike out any issues already framed. This power can be exercised at any time.
44. If we look at the sequence of events that have taken place in this case, the suit was instituted in March 1974, 10 issues were framed in October 1974, one issue was decided as a preliminary issue in September 1976 and the same was allowed to rest in 1990 (or 1986). In 1990, the suit was pending on the file of the District Munsif Court, after having been transferred from the Sub Court, in view of the pecuniary jurisdiction of Courts getting changed. But with the enhancement of valuation and payment of additional court fee, the District Munsif Court lost jurisdiction and the case got transferred to the Principal Sub Court and renumbered as O.S.No.110 of 1991. Fresh issues were framed thereafter and the issue as to whether deficit court fee had been paid in time or not, as per the order dated 20.9.1976, was never raised as one of the issues before the Principal Sub Court. The effect of the non framing of this issue, after 1991 is that the Court should be deemed to have struck out the previous issue No.8, in terms of Order XIV, Rule 5 (2), CPC.
45. Once it is seen that the parties were not at issue (at least before the Trial Court) on the question of non payment of deficit court fee in time and the consequences arising therefrom, the next question that arises for consideration is as to whether the first Appellate Court could go into that question. Therefore, let me now consider this question.
46. The present appeal is an appeal under Section 96 CPC. Section 96 stipulates that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal, (i) either on account of any mis-joinder or non-joinder of parties (except non-joinder of a necessary party) (ii) or on account of mis-joinder of causes of action (iii) or on account of any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
47. The non-payment of deficit court fee within the time stipulated and the consequence of Order VII, Rule 11(b) getting attracted, could be termed as an error, defect or irregularity in the proceedings in the suit. But this has not affected the merits of the case or the jurisdiction of the Court, except on one question relating to limitation. The issue of limitation will be taken up by me in the next chapter of this judgment and hence I do not deal with it at present. But suffice it to say that the irregularity in the proceedings before the Trial Court, in omitting to take note of the non payment of deficit court fees in time, has not affected the merits of the case, in as much as the parties had gone to trial on the issues as framed by the Court. Therefore, Section 96 may operate as a bar.
48. It is true that under Section 107 (1)(c) of the Code, the Appellate Court has the power to frame issues and refer them for trial, subject to such conditions and limitations as prescribed by the First Schedule to the Code. In other words, as a Court of First Appellate jurisdiction, I have the same powers and shall perform the same duties as are conferred upon the Courts of original jurisdiction, by virtue of Section 107(2). Therefore, there is no bar for me even to frame an issue today as to whether the deficit court fee was paid or not, in time, as per the order dated 20.9.1976.
49. Mr.T.V.Ramanujun, learned senior counsel for the appellants relied upon the decision of the Division Bench of this court in Natarajan v. Rajasekaran ((2003) 2 MLJ 305). It was a case arising out of the dismissal of a suit for recovery of money. One of the grounds on which the suit was rejected in that case was that the plaint was returned by the Court to enable the plaintiff to affix the deficit court fee within fifteen days time. But, the plaint was not re-presented within the time. Therefore, the trial Court came to the conclusion that the suit was barred by limitation. In the appeal before a Division Bench of this Court, the Division Bench referred to Section 149 of the Code of Civil Procedure and Section 4 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and laid down the following propositions:
"We deem it necessary to clarify the legal position and lay down the procedure to be followed as under:
(1) Sec.149 of Code of Civil Procedure is a proviso to Sec.4 of the Tamilnadu Court Fees and Suits Valuation Act, 1955.
(2) The word 'document' employed in Sec.149 of Code of Civil Procedure would include plaint also.
(3) Whenever a plaint is received, the same shall be verified and if found to be not in order, the same shall be returned at least on the third day (excluding the date of presentation so also the intervening holidays).
(4) If the suit is presented on the last date of limitation affixing less Court-fee, than the one mentioned in the details of valuation in the plaint, an affidavit shall be filed by the plaintiff giving reasons for not paying the requisite Court-fee.
(5) In such cases, the Court shall before exercising its discretion and granting time to pay the deficit Court-fee, shall order notice to the defendants and consider their objections, if any. However, such notice is not necessary in cases where the plaintiff has paid almost the entirety of the requisite Court-fee and the Court is satisfied on affidavit by the party that the mistake happened due to some bona fide reasons such as calculation mistake or the alike.
(6) The discretion referred to in Sec.149 of Code of Civil Procedure is a judicial discretion and the same has to be exercised in accordance with the well established principles of law.
(7) But however, in cases where the time granted to pay the deficit Court-fee falls within the period of limitation, the defendant need not be heard.
(7A) In case where the plaint is presented well within the period of limitation with deficit Court-fee and the Court returns the plaint to rectify the defect giving sometime (2 or 3 weeks), which also falls within the period of limitation, but the plaint is re-presented paying deficit Court-fee after the period of limitation, the Court is bound to hear the defendant, notwithstanding the fact that the plaintiff has paid substantial Court-fee (not almost entirety) at the first instance, before condoning the delay in paying the deficit Court-fee.
(8) In cases where part of the time granted to pay the deficit Court-fee falls outside the period of limitation and the deficit Court-fee is paid within the time of limitation (i.e., the plaint is re-presented with requisite Court-fee), the Court need not wait for the objections of the defendant and the plaint can be straight away numbered.
(9) The Court should exercise its judicial discretion while considering as to whether time should be granted or not. Cases where the plaintiff wrongly (bona fide mistake) valued under particular provisions of law under Court Fee Act or where he could not pay the required Court-fee for the reasons beyond his control, due to some bona fide reasons, the Court shall condone the delay. Payment of substantial Court-fee is a circumstance, which will go in favour of the claim of the plaintiff that a bona fide mistake has crept in.
But however, in cases where the plaintiff acted wilfully to harass the defendant (like wilful negligence in paying Court-fee, awaiting the result of some other litigation, expecting compromise, etc.).
(10) If the Court had exercised its discretion without issuing notice, then it is open to the defendant to file application under Sec.151 of Code of Civil Procedure for proper relief. It will be open to the defendant to file a revision under Art.227 of the Constitution of India. That apart, objection can also be raised at the trial or even at the appellate stage, since the failure to exercise judicial discretion in a manner known to law (as laid down in various decisions of the Supreme Court) amounts to Court applying a wrong provision of law."
The above decision was followed by M.Thanikachalam,J, in S.V. Arjunaraja v. P.Vasantha (2005 (5) CTC 401) and Prabha Sridevan,J, in Ramiah v. R.Palaniappan ((2007) 5 MLJ 559).
50. From the principles laid down by the Division Bench in Natarajan, it is clear that the defendant has a right to be heard before permitting the plaintiff to pay deficit court fee, if the period of time so granted to the plaintiff falls beyond the period of limitation for instituting the suit. It is also clear from the decision of the Division Bench that since the permission to pay deficit Court fee is a matter of judicial discretion, it is always open to the defendant to raise the issue either before the trial Court or even before the Appellate Court. Therefore, as pointed out in one of the preceding paragraphs, there is no bar for me today even to frame an additional issue on the question whether the deficit Court fee was paid in time or not.
51. Order XLI, Rule 25 of the Code stipulates the powers of and the procedure to be adopted by the Appellate Court, in this regard. It reads as follows:-
"25. Where Appellate Court may frame issues and refer them for trial to Court whose decree appealed from. - Where the Court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the same for trial to the Court from whose decree the appeal is preferred, and in such case shall direct such Court to take the additional evidence required;
andsuch Court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefor within such time as may be fixed by the Appellate Court or extended by it from time to time (Inserted by Act 104 of 1976)."
52. But it appears from the language employed in Rule 25 of Order XLI, that the Appellate Court is at liberty to frame such issues, if they are essential to the right decision of the suit upon the merits. There are 3 phrases used in Rule 25. They are (i) essential to the right decision of the suit upon the merits (ii) the Appellate Court may and (iii) if necessary. Therefore, it is not necessary in every case that an Appellate Court should frame issues omitted to be framed by the Trial Court. Order XLI, Rule 25 leaves it entirely to the discretion of the Appellate Court to frame issues, if two conditions are satisfied viz., (i) that it appears to the Appellate Court that the framing of such issue is essential to the right decision of the suit upon the merits and (ii) that the Appellate Court considers it necessary.
53. Therefore, on the first point arising for consideration in this first appeal, I hold that though a situation arose before the Trial Court for the invocation of Order VII, Rule 11 (b) CPC, due to the non payment of deficit court fee within time and due to the failure of the plaintiffs to seek any extension of time, the appellants cannot raise it as an issue in this appeal. This is due to the fact that the parties were not at issue on this score before the Trial Court, when the Trial Court framed issues afresh after the suit got transferred to the Principal Sub Court and renumbered as O.S.No. 110 of 1991. Since the said issue does not touch upon the merits of the case, I do not also consider it necessary, to invoke Order XLI, Rule 25 at this distance of time. Today a period of 37 years have passed from the date of the first institution of the suit. Though the first plaintiff who represents the first generation is alive, the second plaintiff and the first defendant who represented the second generation in the family, are no more. Therefore, I do not think that it is a fit case for invocation of Order XLI, Rule 25 and to call for a finding from the Trial Court.
54. In P.K.Palanisamy vs. N.Arumugham {2009 (9) SCC 173}, the Supreme Court was concerned with a case arising out of a suit for recovery of money. The plaint, when it was originally presented, was accompanied by a court fee of Re.1/- only. However, the Trial Court granted 6 weeks time for payment of deficit court fee, by order dated 7.10.1998, on an application filed under Section 148 CPC. After obtaining extension of time twice under orders dated 20.11.1998 and 21.1.1999, the deficit court fee was paid on 17.2.1999. Thereafter, the suit got numbered and an ex parte decree also came to be passed by the Trial Court. Subsequently, the ex parte decree was set aside on condition. After complying with the condition and getting the ex parte decree set aside, the defendant filed an application for rejection of plaint under Order VII, Rule 11(c) CPC, on the ground that the suit was barred by limitation. Though the Trial Court dismissed the said application, the High Court allowed a revision and rejected the plaint. When the matter landed up in the Supreme Court, the Supreme Court laid down the following propositions:-
(i) that when a plaint is presented, it should ordinarily be accompanied by the requisite court fee (para 14 of the report);
(ii) that it does not mean that whenever a plaint is presented with deficit court fee, the same should be rejected outright (para 15);
(iii) that in terms of Section 149 of the Code, a legal fiction is raised to the effect that as and when deficit court fee is paid, it would be deemed to have been paid in the first instance (para 15); and
(iv) that payment of court fee is a matter between the State and the suitor and that if an application under Order VII, Rule 11 (c) is entertained, several aspects are required to be considered (para 17).
55. Therefore, in the light of the above principles and in the background of the fact that the appellants failed to have an issue framed in this regard by the trial court, I hold on point No.1 that the appellants cannot now raise it. In any case, the finding that I propose to render on point No.3 (merits of the case), convinces me not to exercise the discretion to frame an issue in this regard at this stage.
Point No.2- BAR OF LIMITATION
56. The second point arising for determination in this appeal, is as to whether the challenge to Exx.A-15 and A-16, the Trust Deed and Settlement Deed dated 25.2.1970 was barred by limitation or not.
57. The contention of the appellants is that both these documents are dated 25.2.1970. The suit was filed in 1974. There was no pleading in the plaint to the effect that the plaintiffs gained knowledge about the documents in question, within 3 years immediately preceding the date of institution of the suit. Therefore, it is the contention of the appellants the suit was barred by limitation in terms of Article 59 under the Schedule to the Limitation Act.
58. It is the further contention of the appellants that after the issue of valuation and court fee got settled, the plaintiffs paid additional court fees and re-presented the suit only on 28.1.1991. By this time, a period of 21 years had passed from the date of execution of the documents. Since the amendment to the plaint, to include a prayer for cancellation of these documents, was allowed only in 1985 and carried out in 1990 and re-presented in 1991, the amendment cannot relate back to the date of institution of the suit in 1974.
59. In support of the above contentions, the appellants rely upon the following decisions:-
(i) Correspondent, The American Advent Mission School vs. J.Jeevanandam {1989 (2) LW 245 (DB)}
(ii) Tarlok Singh vs. Vijay Kumar Sabharwal {1996 (1) CTC 738 (SC)}
60. In addition, the appellants have also filed CMP No.10569 of 1996 praying for correcting the date of presentation of the plaint as 28.1.1991, instead of 18.1.1974. It is on the basis that the suit was properly valued, adequate court fee paid and re-presented only on that date and hence the date of institution of the suit in 1974 was of no consequence.
61. It is true that the Deed of Trust and the Settlement Deed, whose cancellation is sought by the plaintiffs, are dated 25.2.1970. But the averments contained in the plaint, especially in paragraphs XI, XII, XIII, XIV and XVIII go to show that the very basis of the claim of the plaintiffs was that both the documents were sham and nominal and were never acted upon and that despite the partition dated 14.9.1959 and despite the documents in question, all the properties continued to be in common and joint management till 1972. In para XVI of the plaint, it is specifically averred that after the second plaintiff returned from U.S.A. in 1972, some of the properties were handed over to him. Therefore, on facts, the date of commencement of the period of limitation, if there was actually any, was only in 1972.
62. In the written statement filed by the first defendant when he was alive, which later came to be marked as Ex.A-31 (after his death), he had repeatedly pleaded that amity and cordiality prevailed in the family from 1945 till 1972. In paragraph 11 of the written statement filed by the first defendant (Ex.A-31), he pleaded that the first plaintiff was always at the helm of affairs and in management of the properties belonging to all and that even after the re-partition of 1959, the old managerial assistant Mr.A.R. Krishnamurthy Iyer continued to function at the behest of the first plaintiff who was at the helm of affairs. Again in paragraph 31 of the written statement, the first defendant stated that the first plaintiff was a woman of strong character and that she was able to manage the estate from the age of 19 (since 1945) till she left to live separately in 1972. The fact that physical separation took place only in 1972 was reiterated by the first defendant again in paras 32 and 36.
63. The second defendant who was examined as DW-1 also confirmed in cross-examination that till 1972, all of them had a common mess and that in 1972, the plaintiffs 1 and 2 went separately to a house built by the second plaintiff. Therefore, the pleadings as well as the evidence confirm that the period of limitation if any, would have started running only from 1972. Having fixed the date of commencement of the period of limitation, let me now turn on to the date of institution of the suit, to find out if the suit was barred by limitation.
64. If the date of filing of the suit is taken to be March 1974, the suit was within time. If the date of institution is taken only to be 28.1.1991, then it is barred by limitation. This is why the appellants contend that the date on which proper court fee was paid and the plaint re-presented, should be taken to be the date of institution of the suit. In addition, they also contend that the amendment permitted by the Court, to include a prayer for cancellation of the documents in question, cannot relate back to 1974.
65. In American Advent Mission School case, relied upon by the appellants, a suit was filed for a declaration that the order of dismissal passed by the management of the school was void. Initially there was no prayer for a consequential relief. The date of dismissal was 5.6.1967. The suit was filed in 1969. The plaintiff got the plaint amended on 29.3.1974, to include a prayer for the consequential relief of damages. The Trial Court dismissed the suit even on merits. While reversing the decision of the Trial Court, a learned Judge of this Court considered that the relief of damages was only consequential to the principal relief of declaration and that therefore, it cannot be stated to be barred by time. But the Division Bench reversed the decision of the single Judge and held as follows:-
"When a contention is being raised about the law of limitation with regard to the amendments sought to be introduced, the Court, while considering the application for amendment, if it is inclined to allow it, must also consider the question of effect of amendments on limitation and give specific directions as to the date on which the amendments shall take effect. If no such direction is given, then such amendments must be held to to be effective only from the date of the amendment application. There could be cases, which are not of amendments, properly so called, but a case of addition of barred reliefs into the plaint which did not project them at all, when it was originally laid, as in the present case, and which the Court, as exceptional cases, considers it just and proper to introduce at a later stage. Hence, specific directions, as to their effect on limitation, are required".
66. In Tarlok Singh case, relied upon by the appellants, a suit for a bare injunction was filed on 23.12.1987. Subsequently, an application was filed under Order VI, Rule 17, on 17.7.1989, to convert the suit into one for specific performance of the Agreement of Sale dated 18.8.1984. It was allowed on 25.8.1989, leaving the question of limitation open for adjudication. The Supreme Court held since the limitation began to run from 6.4.1986, the suit for a bare injunction laid on 23.12.1987 would be of no avail and that limitation would not begin to run from that date. Since the amendment was ordered only on 25.8.1989, the Supreme Court held that the prayer for specific performance was barred by limitation.
67. But the ratio laid down in the above decisions, cannot be pressed into service in the case on hand, as the facts of the case are very peculiar. As pointed out elsewhere in this judgment, the plaintiffs did not seek a prayer for cancellation of the Trust Deed and Settlement Deed, in the first instance when they filed the plaint in 1973. Their prayer was only for a declaration, valued under Section 25(a) of the Tamil Nadu Court Fees and Suits Valuation Act. But on an objection taken by the defendants, the Court tried the issue of valuation as a preliminary issue and came to the conclusion that the relief sought by the plaintiffs cannot be granted without the Deeds being cancelled or set aside. In the order dated 20.9.1976, which got confirmed upto the Supreme Court, the Court repeatedly pointed out that "the suit must be held to be in substance, one for cancellation or setting aside the Deeds which are an obstacle to the plaintiffs' claim". Actually the Court had two alternatives, in the absence of a prayer for cancellation of the Trust Deed and the Settlement Deed. One option was to dismiss the suit, after a full fledged trial, on the ground that the declaratory relief could not be granted in the absence of a prayer for setting aside the documents. The other option was to construe the reliefs prayed in the suit, as one in substance, to include the relief of cancellation of the documents. The Trial Court adopted the second alternative and construed the reliefs already made in 1974 itself, as inclusive of a prayer for cancellation of the documents. Therefore, the plaintiffs need not even have sought an amendment of the plaint to include a prayer for cancellation of the documents. The moment they paid court fees by valuing the reliefs already prayed for, under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, the suit became one where the question of cancellation of the documents became a subject matter.
68. The logic that is applicable to amendment of pleadings, cannot be applied to payment of court fees. An amendment can be allowed with prospective effect, to ensure that the valuable rights, such as bar of limitation, vested on the defendant are not taken away by permitting an amendment with effect from the date of original institution of the suit. But in so far as court fee is concerned, it would naturally relate back to the date of filing, in normal circumstances.
69. Therefore, in as much as the earliest order of the Trial Court dated 20.9.1976 construed the suit as one for cancellation of the documents, the amendment was virtually inconsequential. In other words, the amendment merely gave skin and bones to the life already infused into the suit, by the order dated 20.9.1976. If the plaintiffs had simply paid the deficit court fees, in terms of the order dated 20.9.1976, without even seeking any amendment, the Court would have been obliged to decide the lis on the basis that the prayer for declaration was virtually a prayer for cancellation of the documents also. The logic on the basis of which additional court fee was demanded, by the appellants as well as by the court, was that the suit was actually one for removing the obstacle in the form of the 2 documents dated 25-2-1970. Therefore, once the court fee was paid, the prayer already found in the plaint (even without an amendment) was sufficient to hold the documents invalid. There can be no two opinions at least on the fact that the prayer already made in the suit when it was originally instituted, was within the period of limitation.
70. In Prem Singh {2006 (5) SCC 353},the Supreme Court pointed out that Article 59 under the Schedule to the Limitation Act, applies specifically when a relief is claimed on the ground of fraud or mistake and that it encompasses within its fold, fraudulent transactions which are voidable. Since a suit for cancellation of an instrument is based on Section 31 of the Specific Relief Act, 1963, the Supreme Court pointed out that when a suit is filed for cancellation of a transaction, it would be governed by Article 59. However, the Court pointed out that while Article 59 would apply where a document is prima facie valid, it would not apply to instruments which are presumptively valid.
71. But as pointed out by me earlier, this question would arise only when the relief claimed in the suit is presumed to have been made for the first time only in 1990/1991. But by the order dated 20.9.1976, the declaratory relief itself was construed to encompass within itself, the relief of cancellation of the documents in question. In such circumstances, the plea of bar of limitation is not well founded.
72. Therefore, on point No.2 arising for consideration, I hold that the suit was not barred by limitation, in view of the fact that the amendment was merely cosmetic, just to give shape to the finding already recorded by the Trial Court as early as in 1976 that the suit was virtually one for cancellation of the documents.
73. CMP No.10569 of 1996 has been filed by the appellants under Section 107(2) of the Code, for correcting the date of filing of the suit in the decree, from 18.01.1974 to 28.01.1991. This is on the ground that the plaintiffs paid deficit Court fee, only on 28.01.1991, after getting an amendment of the prayer allowed. Therefore, the appellants claim that the date of payment of proper Court fee alone should be taken as the date of filing of the plaint.
74. The appellants seek the above correction for two purposes, namely, (i) that such a correction would strengthen their contention with regard to the plea of limitation; and (ii) that the correction would also protect them as against the claim for mesne profits for a period of 22 years from 1972.
75. As I have pointed out in the discussion relating to (i) payment of deficit Court fees; and (ii) issue of limitation, the amendment of the plaint was allowed by this Court by an order dated 04.5.1985 passed in CRP No.3624 of 1984. But even according to the appellants, this amendment was wholly unnecessary and was employed only as a ruse to get over the non payment of deficit court fees. By the very contention of the appellants, the additional prayers included by way of amendment, were in-built in the original prayer, which is why there was a demand for payment of additional court fees. Once additional court fee was paid, the same relates back to the date of institution of the suit. Hence, it is not feasible today, to alter the date of filing of the suit, as shown in the decree of the trial Court from 18.01.1974 to 28.01.1991. Consequently, CMP No.10569 of 1996 is dismissed.
Point-3 : WHETHER EXX.A-15 and A-16 ARE SHAM and NOMINAL:
76. The Deeds of Trust and Settlement dated 25.2.1970, filed as Exx.A-15 and A-16, are alleged by the plaintiffs to have been brought forth by fraud and misrepresentation and also described as sham and nominal and never intended to be acted upon.
77. In normal circumstances, allegations of misrepresentation and fraud, should be made precisely in the pleadings, as per Order VI, Rule 4, CPC. There is a presumption that a registered instrument was validly executed. Therefore, the onus of proof is on the person who seeks to rebut the presumption. Similarly, the burden of proving misrepresentation and fraud, is also on the person alleging the same.
78. But relying upon the maxim "non est factum scriptum predictum non est factum sum", the respondents contend that the burden was on the defendants, in view of the fact that the first plaintiff was an illiterate woman. The respondents also rely upon the decision of a Division Bench of this Court in K.Varadhan vs. Pattammal {1992 (2) LW 209}, in support of the contention that the burden of proof was on the defendants, in view of the fact that the first plaintiff was an illiterate woman. In para 8 of the said judgment, the Division Bench held as follows:-
"8. Courts in India have on the rule of evidence enshrined in Sections 101 and 102 in Chapter VII of the Evidence Act, particularly in cases of women in India who in some parts and some communities are pardanashin and in most parts of the country illiterate, for the reason that they transact their business generally through malefolk only, men always dominated women, and women lived a life dominated by man, this being the curse that always surrounded womenfolk even though law recognised their independent rights, they failed invariably in exercising such rights, accepted that onus lies upon the defendant to show that there has been no fraud, undue influence or coercion in the transaction. One could easily, since the plaintiff alleged misrepresentation and fraud, ask her to prove the misrepresentation and fraud. But not in a case where she being an illiterate and unaware of the contents signed the document. Unless fully and faithfully informed about the contents, she cannot be asked to bring evidence to prove her case."
79. In view of the above stand taken by the respondents/plaintiffs, it is necessary first to see if the burden of proof to show that Exx.A-15 and A-16 were vitiated by fraud and misrepresentation, was on the plaintiffs or on the defendants. Depending upon the answer to this question, we have to see whether such a person has discharged the burden in accordance with law or not.
80. At the outset, it must be remembered that the maxim "non est factum" and the principle of law laid down by the Division Bench in K.Varadhan, is an exception to the general rule. For invoking the said rule, there must be a clear pleading that the lady who seeks to take shelter under the exception, should at least show that she was illiterate and that she was unaware of the contents of the documents executed by her.
81. Keeping the above principle in mind, if we look at the plaint, it contains the following averments:-
(i) When T.K.Narayanaswamy Iyer died on 25.1.1945, the second plaintiff was 2 years old and the first defendant was 12 years old. Therefore, the plaintiffs claim in para IV of the plaint that "the properties came under the management of the first plaintiff with the help of A.R. Krishnamurthy Iyer.
(ii) A partition was effected on 23.8.1954 under a registered instrument, when the first defendant was studying in Madras Law College. Still the properties continued in common management (Para V of plaint).
(iii) In 1956, the first defendant completed his Law Degree and took over the management of the properties and the business. The first plaintiff was docile and submissive and A.R.Krishnamurthy Iyer became the Manager under the first defendant (para VI of plaint).
(iv) On 14.9.1959, another partition was effected, but the properties continued to be under the management of the first defendant.
(v) The second plaintiff completed M.B.B.S., in 1966 and continued his M.S., in Jipmer, Pondicherry. By the end of 1969, the second plaintiff decided to go to U.S.A.
(vi) In 1970, a Bill to amend the Madras Land Reforms Act, was about to be introduced to further reduce the ceiling limit on agricultural lands. The first defendant represented that the impending legislation was drastic and he wanted the plaintiffs to execute certain documents for the purpose of placing the lands out of the reach, scope and applicability of the land legislations. Believing his representations, the plaintiffs signed the documents. But they were never read over nor the implications explained to them. Since the first defendant was a Lawyer, the plaintiffs neither sought nor allowed to seek any legal opinion or independent advice. The plaintiffs were assured that the documents were not real, but only sham and nominal and not intended to be acted upon. They were never indeed acted upon (para X and XI of plaint).
82. A careful reading of the entire plaint in general and the above averments in particular, would go to show that the first plaintiff never claimed to be an illiterate lady who affixed her left thumb impression on dotted lines. From the date of death of her husband on 25.1.1945, she managed the properties and the business left behind by her husband, with the help of one Mr.A.R.Krishnamurthy Iyer. This continued till 1956, when the first defendant allegedly took over the affairs after completing the degree in law. Thus it is clear that for a period of about 11 years, the first plaintiff was in control and management of all the properties and the business, when the first defendant was only a minor.
83. The only claim made by the first plaintiff in the plaint is that she was docile and submissive. There is no averment that she was illiterate or that she was not worldly wise. Interestingly, there were admittedly two Deeds of Partition executed within the family. The first Deed of Partition was executed on 23.8.1954. It was filed as Ex.A-2. The next Deed was executed on 14.9.1959 and it was filed as Ex.A-1. Under the first Deed of Partition, the properties were divided into 3 moities. The first moity described in Schedule 'A' to the Partition Deed dated 23.8.1954 was allotted to the first plaintiff Sengammal, to be enjoyed by her during her lifetime without any power of alienation. The letter dated 3.6.1971 written by one Selvakumar Industries to the first defendant, filed as Ex.A-20 shows that even at that time the money payable to the first plaintiff was sought to be deposited with the consent of the first defendant. The properties described in Schedules 'B' and 'C' were allotted to the shares of the first defendant and second plaintiff respectively. Therefore, in the second Deed of Partition dated 14.9.1959, it was stated in the preamble that the first plaintiff was unhappy about not getting her legitimate share in the first partition and that if it was not given, she would take steps to have the first partition annulled in a Court of Law. Under the second Deed of Partition, the first plaintiff was allotted the properties described in Schedule 'A' absolutely. Therefore, the first plaintiff cannot be taken to be a rustic illiterate woman with no understanding of men and matters. Moreover, by the time when the two documents in question were executed on 25.2.1970, the second plaintiff had not only become a major, but had also qualified with M.B.B.S., and M.S., degrees. Both plaintiffs 1 and 2 were parties to the Settlement Deed dated 25.2.1970, filed as Ex.A-16. Therefore, the plaintiffs cannot take shelter under the maxim non est factum. Consequently, I would hold that the burden of proof was only on the plaintiffs to show that the documents in question were brought forth by fraud and misrepresentation or that they were sham and nominal.
84. Having cleared the question as to the person on whom the burden of proof laid, let me see if the plaintiffs discharged the burden cast upon them.
85. Unfortunately, the second plaintiff died on 25.1.1991 even before the suit got numbered. Therefore, the entire burden was on the first plaintiff to prove the allegations of fraud, misrepresentation etc.
86. The first plaintiff examined herself as PW-1. She also examined her step-daughter (the biological sibling of the first defendant) as PW-2. In her chief-examination, the first plaintiff stated the following:-
(i) that Arivudai Nambi (D-1) made representations to the effect that the properties will be taken away by the Government and that if they had to be safeguarded, she should sign as dictated by him;
(ii) that believing his representations, she signed two documents at Mettupalayam and N.Srinivasan (second plaintiff) came down from Pondicherry and signed the documents at Coimbatore;
(iii) that when she and the second plaintiff signed the documents, they did so out of fear that the properties may be taken away by the Government and out of the desire that those properties should be retained.
87. Other than making the above statements, the first plaintiff could not establish as to how the representations allegedly made by the first defendant were either false or fraudulent. There was no averment in the plaint or a statement in the deposition to the effect that no Bill was introduced in 1970 to amend the Madras Land Reforms Act. As a matter of fact, crucial amendments were made to the Madras Land Reforms (Fixation of Ceiling on Land) Act, 1961, under Act 17 of 1970 which came into effect from 15.2.1970. The documents in question in this case were registered on 25.2.1970. Therefore, the representations allegedly made by the first defendant did not turn out to be either false or fraudulent.
88. The plaintiffs could not establish that the representations turned out to be false. They could not also establish that even without the execution of the documents in question, the holding of the family would have been within the ceiling limits. To establish fraud and/or misrepresentation, the plaintiffs ought to have established (i) either that the representations turned out to be false or (ii) that despite the amendment under Tamil Nadu Act 17 of 1970 with effect from 15.2.1970, their holding was within the ceiling limit, leaving no necessity to execute any of the documents in question. The plaintiffs failed to establish either of the two. Therefore, I do not believe that the documents were brought forth by fraud and misrepresentation on the part of the first defendant.
89. In any event, a person who willingly became party to a transaction, the sole object of which was to circumvent the law, cannot be heard to contend that a fraud was perpetrated on him/her. It may be perfectly valid and legal, for a person to arrange his affairs in such a manner that his income and properties do not come within the limits prescribed by a taxation or land ceiling statute. But a person who consciously became a party to such an arrangement, cannot be allowed to turn around later and contend that he was fraudulently led into the transaction.
90. Therefore, I cannot believe the theory of misrepresentation and fraud set up by the plaintiffs. There is one more reason for my conclusion. The first plaintiff claimed in her deposition as PW-1 that the first defendant insisted upon the second plaintiff marrying his wife's sister and that when the first plaintiff did not agree to the proposal, the first defendant beat her up and ordered them to go out of the house. According to PW-1, this happened in 1972, after 2 years of the execution of the documents in question. She also admitted that till 1972, all of them lived together without any problem. Therefore, the plea that the documents in question were brought forth by fraud and misrepresentation cannot be believed.
91. In any case, the allegation that the documents were brought forth by fraud and misrepresentation does not go well with the averment that the underlying transaction was sham and nominal and not intended to be acted upon. Fraud and misrepresentation denote the lack of consensus ad idem. But the averment that a transaction was sham and nominal and not intended to be acted upon would indicate the existence of consensus ad idem. Therefore, both cannot go together.
92. Moreover, the first plaintiff does not appear to be an innocent woman who can easily be taken for a ride, by fraud or misrepresentation. In the course of trial, the defendants served a notice on the counsel for the plaintiffs to produce certain documents including the originals of the Trust Deed and Settlement Deed. A reply was given by the counsel for the plaintiffs to the effect that the plaintiffs are not in possession of the Trust Deed. But it was the first plaintiff who produced the Settlement Deed dated 25.2.1970 executed by her in favour of the second defendant as Ex.A-15. It was she who produced in chief-examination, the deed of settlement in favour of the Trust as Ex.A-16. It was she who produced the draft of these documents as Ex.A-17. Therefore, she was confronted in cross-examination as to why she gave a false reply to the 'notice to produce'. This reply was filed as Ex.B-1. After being confronted in cross-examination, she confessed that at that time she was confused as to whether it would be good for her or not to produce those original documents. Therefore, it is clear that the first plaintiff was not such a vulnerable woman as she projected herself to be. She was clever enough to take away Exx.A-15, A-16 and A-17 along with her when she went out of the house in 1972 along with the second plaintiff. Yet she claimed under Ex.B-1, in response to the notice to produce, that she was not in possession of the documents. Therefore, I am unable to believe that the first defendant played fraud upon the plaintiffs 1 and 2 nor that the documents were brought forth by misrepresentation.
93. Once it is concluded that the documents were not brought forth by fraud and misrepresentation, then the next question to be considered is as to whether these documents were sham and nominal and never intended to be acted upon or not.
94. To ascertain whether they were never intended to be acted upon nor actually acted upon, it is necessary to look into the conduct of the parties after the execution of the documents. As stated earlier, the date of execution of the documents was 25.2.1970. In the written statement filed by the first defendant, which was later marked as Ex.A-31 on account of the demise of the first defendant, it was claimed by him that amity and cordiality prevailed among the parties from 1945 to 1972. In paragraph 11 of the written statement of the first defendant he stated the following:-
"This defendant submits that amity and cordiality prevailed from 1945 till 1972 among the parties and things were done according to the wishes of the first plaintiff. She was always at the helm of affairs of the management of the properties belonging to all."
95. Again in paragraph 14 of his written statement, the first defendant explained the circumstances under which the documents dated 25.2.1970 came to be executed. The relevant portion of paragraph 14 of the written statement of the first defendant, reads as follows:-
"14.........
In case the apprehended land ceiling reduction of ceiling to five acres coupled with exemptions being withdrawn-substantial portion of the plaintiffs' land will be declared surplus and taken away by the Government. Under the circumstances the plaintiffs at their instance wanted to make some family arrangement to save the lands. The original intention behind 1959 repartition would be defeated. With a view to avert such a result the plaintiffs themselves proposed and that instead of allowing the lands to go out the family they would rather make immediate disposition by making a gift of 1.44 acres of arecanut thope to second defendant and 11.28 acres of land to the T.K.Narayanaswamy Family Education Trust by the first plaintiff and by the second plaintiff 1.98 acres of arecanut thope to the abovesaid Trust, intended to benefit the third and fourth defendants to whom the plaintiffs were very much attached them. This was agreed to by the first defendant who in turn agreed not to press his claim for a share of the first plaintiff's property after her lifetime. The above arrangement being a family arrangement entered into by all the parties in a give and take spirit under the circumstances. As otherwise the lands may go out of the family it was a bona fide family arrangement and it was duly put into effect by executing three registered documents, one creating a Trust by the first defendant, another making a settlement to the second defendant by the first plaintiff who was then much attached to the second defendant and the third a settlement by the plaintiffs to the said Trust intended to benefit third and fourth defendants who were then under the shower of affection by the plaintiffs."
96. It is also claimed by the first defendant in paragraph 25 of his written statement that the documents were true, valid and genuine and intended to be acted upon and that they were written by A.R.Krishnamurthy Iyer, who continued in the services of the plaintiffs. It is further claimed that the documents were attested by persons known to both parties, a respectable Advocate of Coimbatore and the author of the documents viz., A.R.Krishnamurthy Iyer. It is also claimed by the first defendant that the originals of the documents were in the income tax files and the plaintiffs removed the same. In paragraph 28 of the written statement, the first defendant further claimed that the first plaintiff willingly and voluntarily out of love and affection towards the children of the first defendant, contributed a share of her properties. In paragraph 30 of his written statement, the first defendant further claimed that the settlement executed by the first plaintiff in favour of the second defendant, was the outcome of the natural love and affection that she had for the second defendant.
97. However, in paragraph 31 of his written statement, the first defendant conceded that the first plaintiff managed the estate from 1945 till 1972. Again in paragraph 32 of his written statement, the first defendant reiterated that the first plaintiff was at the helm of affairs right from 1945 to 1972 and that her word and directive went unquestioned and writ large.
98. The repeated averments contained in the written statement of the first defendant confirmed the fact that even after the documents dated 25.2.1970 came into existence, one of the two persons namely, the first plaintiff or the first defendant, was at the helm of affairs and was in total control and management of all the properties. If the averments of the plaintiffs are true, it was the first defendant who was in management of all the properties. If the averments of the first defendant are true, it was the first plaintiff who was in total control and management. Irrespective of who was in total control and management, the fact remains that at least till 1972, all the properties including those covered by the documents dated 25.2.1970 were under unified command and control of a single person. If the documents had really been acted upon, the centralised command could have actually broken.
99. Moreover, one common denominator in the pleadings of both parties, relates to the purpose for which the documents came into existence. According to both parties, the underlying purpose was the impending amendment to the land reforms legislation. Therefore, the contention that the documents were sham and nominal and not intended to be acted upon, appears to be true.
100. It is true that there are serious restrictions to oral evidence being allowed, to disprove the contents of registered documents. But, it is well settled that when the true character of a document is in question, extrinsic evidence, by way of oral evidence is also admissible, as held by the Supreme Court in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo (2009 (2) CTC 858). But, the onus cast upon the person assailing the document, is very heavy, as pointed out by the Supreme Court in the same decision. In the same case, the Supreme Court made a distinction between two types of nominal transactions. The relevant portion of the decision is as follows:
"A heavy burden of proof lay upon the defendant to show that the transaction was a sham one. It was not a case where the parties did not intend to enter into any transaction at all. Admittedly, a transaction had taken place. Only the nature of transaction was in issue. A distinction must be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of law at all and the nature and character of a transaction as reflected in a deed of conveyance. The construction of the deed clearly shows that it was a deed of sale. The stipulation with regard to payment of compensation in the event appellants are dispossessed was by way of an indemnity and did not affect the real nature of transaction."
101. As pointed out by this Court in Rangappa Nayakan v. Rangaswami Nayakan (AIR 1925 Mad. 1005), quoted with approval by a Division Bench in Rajammal v. Raman Kutty (AIR 1985 Mad. 222), the essence of a sham transaction is that though a deed of transfer is brought into existence, no title of any kind, either legal or beneficial, is intended to be passed thereby to any person whatsoever. The difference between a sham and a benami transaction is one of intention.
102. Keeping the above principles in mind, let us now see the oral evidence in this case. It was claimed by PW-1 (first plaintiff) that the property described in Schedule 'A' in Ex.A-16 was purchased in 1962. But the other property measuring acres 1.98 was an ancestral property. Even the property settled in favour of the second defendant measuring an extent of acres 1.47 was an ancestral property. It was further deposed by PW-1 that till 1972, all properties were kept in common and that the properties covered by Exx.A-15 and A-16 were not handed over. She also stated in her re-examination that the income from the properties used to be deposited and withdrawn only by the first defendant and that he was authorised to transact business with the bank. Exx.A-23 and A-24 were the documents dated 30.8.1971 written by the plaintiffs 1 and 2 respectively to the Manager of the Indian Bank, Mettupalayam Branch, authorising the first defendant to operate the accounts.
103. In cross-examination of PW-1, it was brought out that in Ex.A-25 Accounts Book, separate entries were made for the income and expenditure in respect of the properties allotted to the shares of the first plaintiff, second plaintiff and the first defendant and that the entries were written as though even before 1972, the properties were enjoyed separately by each of them.
104. The evidence of PW-2 did not throw any light upon the issue as to whether Exx.A-15 and A-16 were acted upon or not.
105. The second defendant was examined as DW-1. She is an educated lady, with a degree in Chemistry. She married the first defendant in 1965. Though she claimed in chief-examination that as per the documents in question, patta was granted in her favour and in favour of the Trust and that she and the Trust took possession of the respective properties and started enjoying the same, she went back on the said statement in the cross-examination. In cross-examination, she admitted that 3 items of properties were donated to the Trust. One was the land of an extent of acres 4.81 which stood in the name of the first defendant. The second was the land of an extent of acres 11.28 which stood in the name of the first plaintiff and the third was the land of an extent of acres 1.9 which stood in the name of the second plaintiff. Out of these 3 items of lands, the land measuring acres 11.28 was admittedly purchased in the name of the first plaintiff, after the partition of the year 1959. This land measuring acres 11.28 was on the northern side of the land of an extent of acres 11.28 purchased on the same date by the first defendant. In other words, a total extent of about acres 22.56 had been purchased after the partition of the year 1959, partly in the name of the first plaintiff and partly in the name of the first defendant. DW-1 further admitted that the land which stood in the name of the first plaintiff already had a well and a motor pump set and that it continued to be in existence even on the date on which she gave evidence. She also admitted that on the northern side of the first plaintiff's land, Bhavani river was flowing and that till the date on which she gave evidence, the motor pump set connection stood in the name of the first plaintiff. The date on which DW-1 gave evidence was 4.1.1994. She admitted that only for the past 10 years (preceding 1994) they were cultivating sugarcane, paddy etc. It was further admitted by her that there was no fencing in between 11.28 acres belonging to the first defendant and 11.28 acres belonging to the first plaintiff.
106. More importantly, DW-1 admitted in cross-examination that except the Deed of Trust, she could not file any other document to substantiate their case that a Trust was actually in existence. She also admitted that she did not know how much income was derived from the Trust properties. Though she claimed later that she was supervising the income from the Trust properties, she stated that there are no accounts.
107. Though DW-1 claimed at one stage that possession of the properties were taken by them, immediately after the execution of Exx.A-15 and A-16, such a claim went against the very pleading of the first defendant in his written statement. Moreover, the patta in respect of the properties covered by these documents were admittedly issued only in 1974, after the institution of the suit. These pattas were filed as Exx.B-4 and B-5 by the defendants themselves. DW-1 further admitted that she could not file tax receipts for the period from 1970 to 1974 to show that these properties were separately enjoyed.
108. After extensive cross-examination of DW-1, she was re-examined. At that time, she filed Exx.B-20 and B-21. Ex.B-20 was a tax receipt dated 18.3.1972. Ex.B-21 was the letter allegedly written by the first defendant to the Electricity Board to change the connection in his favour. But in the further cross-examination, DW-1 stated that Ex.B-20 receipt was not issued in the name of T.A.Narayanaswamy Iyer Trust. Even the Survey Number of the land in respect of which it was issued, was not mentioned. DW-1 also conceded that even the patta numbers found in Exx.B-4 and B-5 were not mentioned in the Ex.B-20.
109. Therefore, from a careful consideration of the oral evidence adduced on the side of both parties, it is clear that there is nothing to show that the documents in question were actually acted upon. Out of 31 documents filed on the side of the plaintiffs and 22 documents filed on the side of the defendants, only a few documents had come into existence after 25.2.1970, but before 1972. Out of these documents, Exx.A-23 and A-24 show that the first defendant was even operating the Bank Accounts of the plaintiffs 1 and 2. There is no other document to show that the properties were treated as that of the Trust or as that of the second defendant in pursuance of Exx.A-15 and A-16. Therefore, it is clear that the parties to these documents did not actually act in accordance with these documents. The admission on both sides that the purpose of creation of these documents was the amendment to the land ceiling legislation confirms the averment that these documents were only sham and nominal documents not intended to be acted upon. Therefore, I hold on point No.3 that the documents are only sham and nominal documents, not intended to be acted upon by either of the parties.
Point-4: RELIEF IN RESPECT OF SCHEDULE-A PROPERTIES:
110. The next issue to be considered is as to whether the plaintiffs are entitled to declaratory and possessory reliefs in respect of suit 'A' schedule properties.
111. As pointed out earlier, the suit 'A' schedule properties comprise of three items. The first is the land of the extent of acres 11.28 in S.F.No.815/1A, Thekkampatti Village, Mettupalayam, Avinashi Taluk. Item No.2 is the land of the extent of acres 1.98 in S.F.No.431/01, 2, 3B, 4 in Nellithorai Village, Avinashi Taluk, Mettupalayam. Item No.3 is described as Thope, measuring an extent of acres 1.47 in Survey No.242, Nellithorai Village, Avinashi Taluk, Coimbatore District.
112. Item No.3 of suit 'A' Schedule property was settled in favour of the second defendant, by the first plaintiff. Items 1 and 2 were settled in favour of the Trust. I have already found under point-3 that Exx.A-15 and A-16 are sham and nominal documents, never intended to be acted upon by the parties. Therefore, it should follow as a corollary that the plaintiffs are entitled to the reliefs of declaration and possession.
Point-5: RENDITION OF ACCOUNTS:
113. The next question that arises for consideration is as to whether the plaintiffs are entitled to a decree for rendition of accounts. Once it is found that the documents on the basis of which the defendants claim right, title and possession of the properties are sham and nominal documents and once it is found that the defendants retained possession of the properties by virtue of Exx.A-15 and A-16, the plaintiffs are naturally entitled to a decree for rendition of accounts. Though the trial Court decided on Issue No.2 that the defendants are to be equated to trespassers, I do not think that the defendants can be termed as trespassers. Though the documents under which the defendants claim, are sham and nominal documents, the first defendant, who is now no more, appears to have been in management and control, even after 1970, with the consent of the first plaintiff.
114. But, to grant a decree for accounts, the person in possession need not necessarily be a trespasser. Even persons who are in permissive occupation are obliged to render accounts. Therefore, the trial Court was right in relegating the enquiry into mesne profits to a separate proceedings under Order XX, Rule 12, CPC.
CMP No.17037 of 2000:
115. This petition has been filed by the appellants under Order XLI, Rule 27, CPC, to file two documents as additional evidence. The documents sought to be marked in additional evidence are (i) the certified copy of the partition deed dated 06.02.1970; and (ii) the certified copy of the sale deed dated 15.12.1962. These documents are sought to be marked by the appellants to show that those documents were written by Mr.Krishnamurthy, who was managing the affairs and who also was the sister's husband of the first plaintiff. The partition deed was attested by the first plaintiff. The sale deed dated 15.12.1962 is sought to be marked to show that it was the first plaintiff who paid the entire purchase money and also presented the document for registration.
116. It is seen from the affidavit in support of the above miscellaneous petition that the appellants seek to mark the above documents to show that the first plaintiff was not a very docile and submissive person and that she was at the helm of affairs.
117. I have already recorded a finding in respect of point-3 that the first plaintiff is a worldly wise lady and that she cannot be said to have been taken for a ride by the first appellant's husband Arivudai Nambi (first defendant). Even without these additional documents, I have reached the above conclusion. These additional documents may only strengthen the conclusion that I have already reached without them.
118. The law is well settled as to when additional documents could be permitted to be filed at the appellate stage. This is a case where the fight is between the stepmother and the stepson. The stepson, who was the first defendant, died after filing the written statement. Therefore, his written statement itself had to be marked as Ex.A-31. In such circumstances, the appellants cannot be said to be guilty of lack of due diligence in not filing the above documents during trial. The first defendant in the suit was not merely a litigant, but was also a lawyer. Therefore, it is possible that if he had been alive, he might have marked these documents in evidence. Since he died after filing writing statement, I think, ends of justice require that this petition should be allowed. Therefore, this miscellaneous petition is allowed. The two documents are marked as Exx.D-23 and D-24.
CRP No.3542 of 2000:
119. The civil revision petition arises out of an order of attachment passed in execution proceedings, for the recovery of mesne profits to the tune of Rs.10,77,772/-.
120. As seen from the narration of facts given above, the suit O.S.No.110 of 1991 was decreed on 05.4.1994. In brief, the decree was to the following effect:
(i) that the plaintiffs are entitled to a declaration of title regarding suit 'A' schedule properties;
(ii) that the documents Exx.A-15 and A-16 are not valid and binding on the plaintiffs;
(iii) that the defendants should hand over possession of suit 'A' schedule properties to the plaintiffs within two months;
(iv) that the defendants should render accounts for the income derived from suit 'A' schedule properties, from the date of filing of the suit, till the date of handing over possession;
(v) that insofar as the mesne profits arising out of the cutting and removing of trees in the suit properties, which became the subject matter of I.A.No.1122 of 1993, separate proceedings under Order XX, Rule 12, CPC, may have to be pursued; and
(vi) that the plaintiffs are entitled to costs in a sum of Rs.15,457/-, in the suit.
121. Therefore, insofar as mesne profits are concerned, the trial Court relegated the matter to separate proceedings.
122. It appears that the plaintiffs thereafter filed I.A.No.1338 of 1995, in which an order was passed on 15.3.1996. On the basis of the said order, the plaintiffs filed E.P.No.97 of 2000.
123. But, the objection raised by the appellants herein was that no decree was drafted on the basis of the order dated 15.3.1996, since the plaintiffs did not pay Court fee in terms of Section 44(2). The fact that no Court fee was paid was admitted by the plaintiffs. Therefore, according to the appellants, no decree was ever drafted to enable the plaintiffs to seek execution.
124. Unfortunately, the above contention was rejected by a small non speaking order by the executing Court. It reads as follows:
VERNACULAR (TAMIL) PORTION DELETED
125. The revision petitioners are right in contending that their right of appeal as against the order dated 15.3.1996 in I.A.No.1338 of 1995 would get defeated if without drafting a decree, execution is sought to be laid. It is true that what was passed in I.A.No.1338 of 1995 on 15.3.1996 was only an order recording a finding. But, the order remains a fair order till a decree is drafted in terms of the provisions of the Code. It is only after a decree is drafted that the right of the judgment debtor to file an appeal will crystallise. Therefore, the revision petition deserves to be allowed. Accordingly, it is allowed and the impugned order is set aside, remitting the E.P. back to the trial Court to conduct a fresh enquiry to find out if any decree had actually been drafted in I.A.No.1338 of 1995. If a decree had already been drafted and certified copy is issued, the executing Court is entitled to proceed further, subject to any order passed by any appellate Court. If no decree has actually been drafted, the question of executing the same will not arise until a decree is so drafted.
In the result, the appeal is dismissed. CMP No.17037 of 2000 is allowed. CRP No.3542 of 2000 is allowed. There shall be no order as to costs. The Receiver is discharged. He shall be paid a one time lump sum remuneration of Rs.1 lakh for the past services rendered over 15 years. It shall be paid by the respondents.