(Prayer in S.A.No.1111 of 2014: This Second Appeal has been filed under Section 100 of Civil Procedure Code, to set aside the Judgment and Decree dated 20.03.2014 in A.S.No.51 of 2012 on the file of Subordinate Court, at Poonamallee and thereby reverse the Judgment and Decree dated 25.01.2012 in O.S.No.496 of 2004 on the file of Additional District Munsif Court, at Poonamallee.

In S.A.No.1112 of 2014: This Second Appeal has been filed under Section 100 of Civil Procedure Code, to set aside the Judgment and Decree dated 20.03.2014 in A.S.No.66 of 2012 on the file of Subordinate Court, at Poonamallee and thereby reverse the Judgment and Decree dated 25.01.2012 in O.S.No.490 of 2004 on the file of Additional District Munsif Court, at Poonamallee.

In M.P. Nos. 1 & 1 of 2014: To stay all further proceedings arising out of the Judgment and Decree passed by the court of the subordinate Judge, Poonamallee in A.S. Nos. 51 & 66 of 2012 dated 20.03.2014 confirming the Judgment and decree of the Additional District Munsif, Poonamallee in O.S. Nos. 496 & 490 of 2004 dated 25.01.2012 during the pendency of the aforesaid second appeals.)

Common Judgment

1. These two Second Appeals are filed against the common judgment and decree dated 20.03.2014, passed in A.S. Nos. 51 and 66 of 2012, on the file of the learned Sub-ordinate Judge, Poonamallee, which confirmed the common judgment and decree dated 25.01.2012, passed in O.S. Nos. 490 and 496 of 2004, on the file of the learned Additional District Munisif at Poonamallee.

2. The parties to the suits are the same, except for the first defendant in each suit. The plaintiff is R.Suresh Babu. The second defendant is his father, A.N.Ramamoorthy. The appellant in S.A.No.1111 of 2014, Arasu, was the first defendant in O.S.No.496 of 2004. The appellant in S.A.No.1112 of 2014, Kanthabai, was the first defendant in O.S.No.490 of 2004.

3. For convenience, the parties are referred to as they were in the trial court.

4. The plaintiff filed O.S. No. 490 of 2004 against Kanthabai and his father, A.N. Ramamoorthy. The prayer was for a declaration that the sale deed dated 28.02.1997, registered as Document No. 1003 of 1997, executed by the second defendant in favour of Kanthabai, was invalid in law, not binding on the plaintiff, and liable to be cancelled.

5. O.S.No.496 of 2004 was filed by the same plaintiff against Arasu and A.N.Ramamoorthy. The prayer was for a declaration that the sale deed dated 10.06.1998, registered as Document No.2398 of 1998, executed by the second defendant in favour of Arasu, was invalid in law, not binding on the plaintiff, and liable to be cancelled.

6. The trial Court tried both suits together. By a common judgment dated 25.01.2012, the trial Court decreed both suits. The first defendants preferred A.S.No.66 of 2012 and A.S.No.51 of 2012, respectively. By a common judgment dated 20.03.2014, the first appellate Court dismissed both appeals and confirmed the trial Court decrees. Hence, these Second Appeals.

7. Facts in brief: The plaintiff, R. Suresh Babu, states that he is the son of the second defendant, A.N. Ramamurthy, and the grandson of late Nagarathinam Naidu and Kamalammal. According to him, the suit property originally belonged to his grandmother Kamalammal, who inherited/acquired the same pursuant to the judgment in O.S.No.44 of 1949 on the file of the Sub Court, Chengalpattu. Kamalammal, as absolute owner, settled the property in favour of her son A.N. Ravikumar under a registered settlement deed dated 24.04.1989. Thereafter, A.N. Ravikumar sold the suit property, along with other properties, to the plaintiff under a registered sale deed dated 28.03.1990. Since the plaintiff was then a minor, his father, the second defendant, was acting as his guardian. The first defendant in both suits were in occupation of the suit premises as a tenant under the plaintiff, through his guardian, on a monthly rent .

8. The plaintiff further alleges that the second defendant, had no right, title or authority to sell the property belonging to the minor plaintiff. However, taking advantage of his position as guardian, the second defendant executed the sale deed dated 28.02.1997, Doc.No.1003/1997, in favour of Kanthabai for Rs.58,504/-, and the sale deed dated 10.06.1998, Doc.No.2398/1998, in favour of Arasu for Rs.44,000/-. The plaintiff asserts that the defendants was fully aware that the property belonged to the plaintiff and that the second defendant had no independent right over it. According to the plaintiff, after attaining majority, he did not ratify the sale, but expressly disowned and repudiated it. He issued a legal notice dated 17.04.2000 calling upon the first defendant in both suits to treat the sale as invalid and to pay rent, but the Kanthabai, by reply dated 02.05.2000 and Arasu, by reply dated 12.05.2000 refused the demand and claimed ownership under the sale deed. Hence, the suit has been filed seeking a declaration that the sale deed dated 28.02.1997, 10.06.1998 executed by the second defendant in favour of the first defendants Kanthabai and Arasu is invalid, not binding on the plaintiff and liable to be cancelled, together with costs and other appropriate reliefs.

9. The defendants’ defence in brief: The common defence of both defendants in the suit is that Kamalammal did not settle the property in favour of the plaintiff, but settled it in favour of A.N.Ravikumar; A.N.Ravikumar sold the property to the plaintiff when he was a minor aged 13 years represented by his father/second defendant; thereafter, the plaintiff, after attaining majority, executed the registered power of attorney dated 06.03.1997, Document No.160/1997, in favour of his father; and acting under that power, the second defendant validly sold the respective suit property to the first defendant. In both suits, the first defendant pleaded that the plaintiff was a major, was aware of the sale, is bound by the transaction, is estopped from questioning it, has no cause of action, has wrongly valued the suit, and has filed the suit by suppressing material facts. In additional written statements, the defendants contended that the amendment of plaint is illegal, seeks to fill up a lacuna, changes the cause of action, and that the suit is collusive between the son and father against the purchase.

10. In O.S.No.490 of 2004, Kanthabai specifically pleaded that she was not a tenant under the plaintiff, but only a sub-tenant under T.S.Sadiq Basha, who was the chief tenant under the second defendant. She also relied on a compromise agreement dated 06.01.2000 entered into between the second defendant, herself, her husband Javarilal Jain and T.S.Sadiq Basha in connection with O.S.No.532 of 1999 and O.S.No.607 of 1999, under which the suits were withdrawn, possession was given to her, and she paid an additional sum of Rs.40,000/- to the second defendant. She further stated that the plaintiff himself signed the said compromise as a witness and therefore cannot question her title or possession.

11. In O.S.No.496 of 2004, Arasu admitted that he was a tenant under Kamalammal from 1965 for non-residential purpose on a monthly rent of Rs.400/-, later continued as tenant under A.N.Ravikumar and then under the second defendant. His specific case is that the second defendant, as power agent of the plaintiff, sold the property to him for Rs.44,000/- under sale deed dated 10.06.1998, Document No.2398/1998, and thereafter his tenancy stood extinguished and he became owner in possession.

12. Findings of the Courts below: The trial Court held that the plaintiff’s date of birth was 27.11.1979. It relied primarily on Ex. A10, the University of Madras mark statement, for this finding. It also referred to Ex. A7 and Ex. A8, namely the decree and judgment in O.S.No.501 of 2004. On that basis, the trial Court held that the plaintiff was a minor on 06.03.1997. Therefore, the Ex. B2 power of attorney was void ab initio. The trial Court further held that the sale deeds in favour of Kanthabai and Arasu were invalid and not binding on the plaintiff. The plea of collusion was rejected. The trial Court also held that the first defendants’ possession was that of tenants only, the plaintiff is in incidental possession and enjoyment of the suit property and the plaintiff is not a party to the documents. Therefore the suit property is properly valued and court fee is correctly paid and the suit relief is not barred by limitation.

13. The first appellate Court confirmed these findings. It held that a minor cannot execute a valid power of attorney; that the second defendant had not obtained permission from the Court to alienate the minor's property; that the sales were not shown to be for the minor's benefit; and that the suits were not hit by Section 34 of the Specific Relief Act, as the first defendants' possession was only that of tenants.

14. Substantial questions of law: These Second Appeals were admitted on the following substantial questions of law:

                     i) Whether allowing of the suit filed from mere declaration without seeking any consequential relief of possession is hit by the provisions of Section 34 of the Specific Relief Act and the judgment and decree passed by the trial Court and the First Appellate Court is sustainable in law?

                     ii) Whether the trial Court and the First Appellate Court had committed an error in law in having relied upon Exhibit A10 the University Examination Mark Sheet produced by the first respondent/plaintiff is the sole document that the date of birth was disputed at the instance of the Appellant/1st defendant in terms of the prior sale deed in respect of the suit schedule property Exhibit B1 dated 28.3.1990 which denotes that the first respondent/plaintiff was 13 years and shall be a major at the time of execution of the sale deed in question?

                     iii) Whether the Courts below are justified in arriving at a finding on assumption that the sale proceeds were not utilised by the second respondent/second defendant to subserve the interest of the minor and had failed to consider that the sale deed was executed after the first respondent/plaintiff had attained majority and as such the entire approach of the Courts below is on the total misdirection and the entirety of the findings and conclusions are absolutely perverse and unsustainable in law.

Substantial Question of Law No.1:

15. The learned counsel appearing for the appellants/ 1st defendants would submit that the respondent/plaintiff has instituted the suit merely to seek a declaration that the sale deed executed by the second defendant in favour of the first defendants is null and void and not binding on the first defendants. Admittedly, the first defendant is in physical possession of the suit property. Therefore, once the plaintiff challenges the first defendant's title, he ought to have sought the further relief of recovery of possession. Having omitted to claim such consequential relief, the suit is expressly barred by the proviso to Section 34 of the Specific Relief Act, 1963.

16. The learned counsel contended that although the first defendants initially entered into possession as a tenant, after the execution of the registered sale deed in his favour he ceased to be a tenant and became the owner in possession. Consequently, the tenancy merged with ownership and was extinguished. Therefore, according to the appellants, the plaintiff could not maintain a suit for declaration simpliciter without seeking recovery of possession.

17. Per contra, the learned counsel appearing for the respondent/plaintiff submitted that the appellant’s entire argument rests on the assumption that the sale deed is valid. The specific case pleaded in the plaint is that the sale deed executed in favour of the first defendant is void and non est in law, because the second defendant had no authority to convey the property. If the sale deed itself is void, the first defendant never acquired ownership under the document, and consequently the original tenancy continued uninterrupted. It is therefore submitted that eviction of the first defendant could be sought only before the Rent Controller under the provisions of the Tamil Nadu Buildings (Lease and Rent Control) Act, and not before the ordinary civil court on the date of filing the suit. Hence, the plaintiff cannot be said to have omitted a relief which he was legally competent to seek before the civil court. Therefore, the proviso to Section 34 has no application.

18. This Court has carefully considered the rival submissions. Section 34 of the Specific Relief Act confers discretionary jurisdiction on the civil court to grant a declaration as to the legal character or right to property. However, the proviso provides that no such declaration shall be granted where the plaintiff, being able to seek further relief than a mere declaration, omits to seek it.

19. The pivotal expression in the proviso is "being able to seek further relief." The Legislature has not used the words "without seeking further relief". The deliberate use of "being able" clearly indicates that the bar applies only where the plaintiff is legally competent to claim the consequential relief before the same court but deliberately omits to do so. The proviso cannot be interpreted as compelling a litigant to seek relief that the civil court itself is incompetent to grant.

20. The purpose of the proviso is well settled. It is intended to prevent multiplicity of proceedings and to discourage plaintiffs from seeking futile declarations without seeking complete relief. However, the provision cannot be extended to compel a plaintiff to combine in one suit relief that is exclusively triable in another statutory forum.

21. In the present case, certain facts are undisputed. The first defendants originally took possession of the suit property only as a tenant. The subsequent sale deed in his favour is the very subject of challenge in this suit. The plaintiff's consistent case is that the sale deed is void, illegal and incapable of conveying any title. Thus, the plaintiff has never admitted that the tenancy stood terminated or merged into ownership.

22. The appellants/1st defendants, however, contends that upon execution of the sale deed, the tenancy stood extinguished. In the opinion of this Court, this submission assumes the validity of the very transaction under challenge. Whether the tenancy merged with ownership depends entirely on the legal efficacy of the impugned sale deed. If the sale deed is ultimately held void ab initio, it cannot produce any legal consequences, including the extinction of the tenancy. A void transaction neither transfers ownership nor effects a merger of lesser and greater interests. Consequently, unless the sale deed is first upheld as valid, the plea that the tenancy stood extinguished cannot be accepted.

23. Therefore, in considering the maintainability of the suit under Section 34, the Court must proceed on the basis of the plaintiff's pleaded case, not on the defence projected by the appellants. According to the plaintiff's pleadings, the first defendants remains only a tenant in the eye of the law. If that pleading ultimately succeeds, an ordinary civil court cannot grant an order for recovery of possession. Eviction of a tenant governed by the Rent Control legislation falls exclusively within the jurisdiction of the Rent Controller and can be ordered only on the statutory grounds enumerated therein.

24. Thus, the plaintiff was not legally competent to seek recovery of possession before the civil court. Consequently, the plaintiff cannot be said to have omitted any relief he was "able to seek" within the meaning of the proviso to Section 34.

25. A useful reference is this Court’s judgment in Balammal v. M. Lakshmana Naicker, AIR 1972 Mad 333. In that decision, this Court held that where a civil court cannot grant recovery of possession because such relief falls within the exclusive jurisdiction of the Rent Controller, a suit for declaration without the consequential relief of possession is maintainable and is not hit by the proviso to Section 34 of the Specific Relief Act. The principle underlying that decision is that the expression "being able to seek further relief" refers to legal competency to claim such relief before the same forum. That ratio squarely applies to the facts of the present case.

26. In Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs, (2008) 4 SCC 594, the Supreme Court classified the categories of suits relating to immovable property. It held that where the plaintiff is out of possession and his title is clouded, he should seek a declaration of title together with recovery of possession. The said judgment was rendered in the context of ordinary civil disputes, in which the civil court itself had jurisdiction to grant a declaration, an injunction, and possession.

27. The present case stands on an entirely different footing. Here, the plaintiff asserts that the first defendants remains a tenant notwithstanding the impugned sale. If that plea succeeds, the civil court cannot grant any relief in eviction. Therefore, the very foundation on which Anathula Sudhakar’s case proceeds, namely the availability of consequential relief before the civil court, is absent in the present case.

28. The expression "being able to seek further relief" in Section 34 cannot be construed merely in a factual sense. It necessarily means being legally entitled to seek such relief before the court in which the declaration is sought. If the statute excludes the civil court's jurisdiction to grant eviction, the omission to seek such relief cannot attract the statutory bar contained in the proviso.

29. The reliance placed by the appellants on Venkataraja and others v. Vidyane Doureradjaperumal (D) through LRs. and others, 2014 (14) SCC 502, does not advance their case. In that case, the original owner, Thayanayagy Ammalle, had executed a sale deed in favour of Vedavalliammalle, and thereafter Vedavalliammalle had dealt with the property as owners and had inducted tenants into the property. The plaintiff therein was claiming as a reversioner and there was no subsisting landlord and tenant relationship between the plaintiff and the persons in possession. The tenants were also parties to the suit and were in a position to deliver possession. Therefore, the Supreme Court held that the plaintiff, being out of possession, ought to have sought the consequential relief of recovery of possession, and that a bare suit for declaration was hit by the proviso to Section 34 of the Specific Relief Act. The said ruling is perfectly applicable to a case where the plaintiff has no landlordtenant relationship with the persons in possession and where recovery of possession is a relief which the civil Court can grant in the same suit. The case on hand is distinguishable. In the present case, the landlord-tenant relationship directly exists between the plaintiff and the first defendants. The plaintiff has not denied the status of the first defendants as a continuing tenant. Similarly, the possession of the first defendants also continues only in the capacity of a tenant. Therefore, the facts of the present case stand on a different footing.

30. The appellants also contended that after the sale deed was executed, the first defendant asserted title in himself and denied the tenancy. Therefore, the plaintiff ought to have sought recovery of possession. This contention overlooks the settled principle that the maintainability of a suit must be examined in light of the averments in the plaint. The plaintiff's cause of action rests entirely on the footing that the sale deed is void and that the tenancy legally subsists. The defence that the tenancy has ceased is itself a matter for adjudication and cannot be assumed when deciding the applicability of Section 34.

31. It is equally significant that the plaintiff has not sought to circumvent the Rent Control legislation. On the contrary, his case is that once the impugned sale is declared void, the legal relationship of landlord-tenant would be restored, and, if necessary, eviction would thereafter be sought before the competent Rent Controller in accordance with law. Such a course is fully consistent with the statutory scheme governing landlord-tenant disputes and cannot be regarded as an omission that would attract the proviso to Section 34.

32. This Court is therefore of the considered opinion that the proviso to Section 34 of the Specific Relief Act applies only where:

                     i. the plaintiff is entitled to a further consequential relief;

                     ii. such relief is legally grantable by the civil court in the same proceedings; and

                     iii. notwithstanding such legal availability, the plaintiff deliberately omits to claim it.

33. In the present case, the second requirement is absent. According to the plaintiff's own case, recovery of possession is not a relief the civil court could have granted, as the first defendants remains a tenant and eviction falls exclusively within the Rent Controller's jurisdiction. Therefore, the plaintiff cannot be said to have omitted a relief to which he was legally entitled to seek before the civil court.

34. Accordingly, this Court holds that the suit for declaration is not hit by the proviso to Section 34 of the Specific Relief Act, 1963. The substantial question of law is answered against the appellant and in favour of the respondent/plaintiff.

Substantial Question of Law No.2:

35. The second substantial question of law concerns the finding as to the plaintiff’s age and the reliance placed by the Courts below on Ex.A10, the University Examination Mark Sheet. The appellants contend that Ex.A10 is not a birth certificate, a school admission register, a school-leaving certificate, or a transfer certificate. It is a University mark sheet. Therefore, in their submission, it could not have been treated as the sole document proving the plaintiff’s date of birth.

36. The appellants further rely on Ex.B1, the sale deed dated 28.03.1990, under which the plaintiff purchased the suit properties through his father, acting as guardian. Ex.B1 states the plaintiff’s age as 13 years. The appellants contend that if the plaintiff were 13 years old on 28.03.1990, he would have attained majority before the sale deeds in question, or at least before the sale deed dated 10.06.1998.

37. The plaintiff, on the other hand, relies on Ex.A10, which records his date of birth as 27.11.1979. If this date is accepted, the plaintiff attained majority only on 27.11.1997. Therefore, on 06.03.1997, the date of the Ex. B2 power of attorney, he was still a minor.

38. The real question is not whether Ex. A10 is a birth certificate. It is not. The question is whether the concurrent finding of the Courts below, which preferred Ex. A10 to the age recital in Ex. B1, is perverse or legally unsustainable.

39. Ex. B1 provides only an age description. It does not state the plaintiff’s date of birth. Age recitals in sale deeds are often approximate. Unless supported by other material, such a recital cannot be treated as conclusive proof of the exact date of birth. Ex. A10, though a University mark sheet, provides a specific date of birth: 27.11.1979. The appellants did not produce any birth certificate, school record, or other independent record showing a different date of birth. They also failed to prove that the date of birth entered in Ex. A10 was false or manipulated.

40. The plaintiff could indeed have produced stronger primary evidence, such as a birth certificate or school record. But the absence of such a document by itself does not render the concurrent finding perverse, given that the defendants’ contrary case also rests only on an approximate age recital in Ex. B1.

41. The Courts below considered both Ex.A10 and Ex.B1. They accepted Ex.A10 because it provides the specific date of birth, and rejected the appellants’ contention based on Ex. B1 because it contains only the approximate age. This appreciation of the evidence cannot be characterised as a finding based on no evidence.

42. With the date of birth taken as 27.11.1979, the plaintiff was a minor on 06.03.1997, when Ex. B2, the power of attorney, was executed. A minor is not competent to enter into a contract or to create a valid agency. Therefore, Ex. B2 did not confer valid authority on the second defendant to sell the plaintiff’s properties.

43. The sale deeds in favour of the appellants were founded on Ex.B2. If Ex.B2 is void, the subsequent sale deeds executed on the strength of Ex.B2 cannot bind the plaintiff.

44. Therefore, the Courts below did not commit any error of law in relying on Ex.A10, in rejecting the appellants’ contention based on Ex.B1, and in holding that the plaintiff was a minor on the date of Ex.B2.

45. Accordingly, substantial question of law No. 2 is answered against the appellants and in favour of the first respondent/plaintiff.

Substantial Question of Law No.3:

46. The third substantial question of law concerns whether the Courts below were justified in holding that the sale consideration was not shown to have been utilised for the benefit of the minor, and whether that finding is perverse.

47. The learned counsel for the appellants/1st defendants contended that the Courts below unnecessarily addressed the question of the utilisation of the sale consideration. According to the appellants, the impugned sale deeds were executed by the second defendant not in the capacity of a guardian, but as the constituted power agent of the plaintiff under Ex. B2. Accordingly, it was argued that the question of legal necessity or benefit to the minor did not arise for consideration.

48. This contention cannot be accepted. While this Court has already held that the Plaintiff executed Ex. B2 during his minority and, therefore, it was void ab initio and incapable of creating a valid agency, the second defendant could not derive any authority under Ex. B2 to convey the Plaintiff's property. Once Ex. B2 is held void, the foundation of the appellants' defence disappears. The validity of the alienations cannot thereafter be sustained on the footing that the second defendant acted as the Plaintiff's lawful power agent. In that view, the issue of whether the sale proceeds were utilised for the benefit of the minor assumes only a subsidiary or incidental significance. It is no longer determinative of the validity of the impugned transactions.

49. The appellants' principal defence rested entirely on the validity of Ex. B2 and on the plea that the plaintiff had attained majority at the relevant time. Once that defence fails, the incidental finding of the Courts below regarding the nonutilisation of the sale proceeds for the benefit of the minor has no independent legal significance.

50. Therefore, although this substantial question of law has been framed for consideration, this Court is of the view that, in light of the findings already recorded regarding the invalidity of Ex. B2, the present question does not materially affect the outcome of the case. The conclusions of the Courts below cannot be characterised as perverse merely because they incidentally examined the question of benefit to the minor. Accordingly, Substantial Question of Law No. 3 is answered against the appellants and in favour of the first respondent/plaintiff.

51. After careful consideration of the pleadings, evidence, and the findings of the Courts below, this Court finds no perversity or legal error that would warrant interference under Section 100 CPC. All the substantial questions of law are answered against the appellants and in favour of the first respondent/plaintiff.

52. In the result, both the Second Appeals, i.e., (i) S.A.No.1111 of 2014 and (ii) S.A.No.1112 of 2014, are dismissed, and the common judgment and decree of the courts below are confirmed. Considering the facts and circumstances of the cases, no order as to costs is made in these Second Appeals. Consequently, any connected miscellaneous petitions are closed.