(Prayer: Original Side Appeal filed under Order XXXVI Rule 1 of the Madras High Court Original Side Rules read with Clause 15 of Letters Patent, to set aside the judgment and decree dated 30.10.2024 passed in Tr.C.S.No.768 of 2013 and decree the suit.
Original Side Appeal filed under Order XXXVI Rule 1 of the Madras High Court Original Side Rules read with Clause 15 of Letters Patent, to set aside the judgment and decree dated 30.10.2024 passed in C.S.No.925 of 2010 and dismiss the suit.
Original Side Appeal filed under Order XXXVI Rule 1 of the Madras High Court Original Side Rules read with Clause 15 of Letters Patent, to set aside the order dated 08.06.2026 passed in Application No.6406 of 2025 in E.P.No.24 of 2025 on the file of the learned Master and dismiss E.P.No.24 of 2025 in C.S.No.925 of 2010.)
Common Judgment
P. Velmurugan, J.
1. The intra-Court appeals in O.S.A.Nos.74 and 75 of 2025 arise out of the common judgment dated 30.10.2024 passed by the learned Single Judge in C.S.No.925 of 2010 and Tr.C.S.No.768 of 2013; and O.S.A.No.126 of 2026 arises out of the order dated 08.06.2026 passed in Application No.6406 of 2025 in E.P.No.24 of 2025.
2. Since the parties, issues involved, and the questions of law arising in all these appeals, are substantially interconnected, all the appeals are taken up together and are being disposed of by this common judgment.
3. The appellants 1 and 2 in all these intra-Court appeals are defendants 1 and 2 in C.S.No.925 of 2010, plaintiffs in Tr.C.S.No.768 of 2013 and applicants/judgment debtors in A.No.6406 of 2025. The respondents in O.S.A.Nos.74 and 75 of 2025 are the respective parties to the aforesaid suits. The respondents in O.S.A.No.126 of 2026 are the decree holders in A.No.6406 of 2025 in E.P.No.24 of 2025.
4. The case of the plaintiffs in C.S.No.925 of 2010, in brief, is as follows :
(i) The first plaintiff – Krishna Rao (since deceased), claimed absolute ownership over the suit property, pursuant to the judgment and decree dated 25.09.2001 passed in O.S.No.2707 of 1998 by the VI Additional Judge, City Civil Court, Chennai. According to the plaintiffs, taking advantage of the age, illhealth, financial difficulties, matrimonial and family circumstances of the deceased first plaintiff, the first defendant, who was introduced to him as a practising Advocate, gained his confidence and induced him to execute a Sale Deed dated 19.03.2010, registered as Document No.976 of 2010 on the file of the SRO, Kodambakkam, for a sale consideration of Rs.1,21,50,000/-. It was alleged that the said transaction was sham and nominal, as there is no consideration of the same. The sale deed had been procured by fraud and undue influence. It was further alleged that, subsequent to the sale, the first defendant asserted ownership, mutated the Revenue Records, collected rent and initiated proceedings in respect of the property, contrary to the understanding between him and the first plaintiff.
(ii) On the above allegations, the first plaintiff issued a legal notice dated 15.10.2010 and instituted C.S.No.925 of 2010 before this Court seeking, inter alia, a declaration that the Sale Deed dated 19.03.2010 is null and void and not binding on the plaintiffs, and also sought injunction against alienation or encumbrance of the suit property, recovery of possession and damages for use and occupation.
(iii) The defendants contested the suit, contending that the Sale Deed dated 19.03.2010 was a genuine and valid transaction and that the entire sale consideration had been paid to the first plaintiff. They denied the allegations of fraud, undue influence, coercion, abuse of the advocate-client relationship and sham transaction. They further relied upon the prior Lease Deed dated 02.04.2009, the subsequent mutation of the Revenue Records and the proceedings initiated by them for recovery of possession from the occupants. It was also contended that the suit had been instituted at the instance of the third defendant, Murugesan, who claimed rights under a Will dated 24.12.2009 executed by the deceased first plaintiff.
(iv) During the pendency of the suit, the first plaintiff died. The said Murugesan, who claimed under the Will dated 24.12.2009, was initially impleaded as the second plaintiff and was subsequently transposed as the third defendant. The wife and children of the deceased first plaintiff were thereafter impleaded as plaintiffs 2 to 7, pursuant to which, the plaint was amended.
(v) By way of amendment, plaintiffs 2 and 7 pleaded, inter alia, that the second plaintiff had contributed towards the construction and development of the superstructure in the suit property. The reliefs relating to recovery of possession and damages for use and occupation, were also incorporated.
(vi) The defendants filed an additional written statement denying the amended pleadings and contending that the suit property is the self-acquired property of the deceased first plaintiff and that there is no material to establish any contribution by the second plaintiff. They also relied upon the alleged admission of the second plaintiff in O.S.No.44 of 2010, regarding the ownership of the property.
(vii) The third defendant, Murugesan, in his written statement, claimed that he was a close friend of the deceased first plaintiff and that the deceased first plaintiff executed a Will dated 24.12.2009 in his favour. He substantially adopted the allegations originally made by the deceased first plaintiff against the first defendant and disputed the amended claim of the second plaintiff regarding her contribution to the property. He further contended that such amended pleadings could not be introduced contrary to the original case of the deceased first plaintiff and asserted his rights under the Will, subject to obtaining an order of probate from the Court.
5. Defendants 1 and 2 in C.S.No.925 of 2010, instituted Tr.C.S.No.768 of 2013, seeking recovery of possession of a portion of the suit property under the occupation of Seetha Rajakumari, wife of the deceased first plaintiff, who is the second plaintiff in C.S.No.925 of 2010.
6. The gist of the averments in Tr.C.S.No.768 of 2013 is as follows :
(i) The plaintiffs therein, who are the defendants in C.S.No.925 of 2010, claimed to have purchased the suit property from the deceased Krishna Rao under the registered Sale Deed dated 19.03.2010, pursuant to which, they claimed to have been put in possession of the property, except for the portion occupied by the wife of Krishna Rao. According to them, the Revenue Records were also mutated in their favour and, after the death of Krishna Rao, the defendant (Seetha Rajakumari) continued in occupation only as a permissive occupant. Alleging that she failed to vacate the premises despite notice, they instituted the suit seeking recovery of possession.
(ii) The defendant (Seetha Rajakumari) resisted the suit, contending that the suit property belonged to her deceased husband, Krishna Rao, and that she was in lawful possession of the portion occupied by her during his lifetime. She disputed the validity of the Sale Deed dated 19.03.2010, alleging that it had been obtained without consideration and also by taking advantage of the matrimonial circumstances. She further relied upon C.S.No.925 of 2010, instituted by Krishna Rao, challenging the very same sale deed, and contended that, after his death, she and her children were his legal heirs. On that basis, she disputed the plaintiffs’ claim for recovery of possession and sought dismissal of the suit in Tr.C.S.No.768 of 2013.
7. After considering the above pleadings, the following issues have been framed by this Court on 29.09.2016 in C.S.No.925 of 2010 :
“1.Whether the registered Sale Deed dated 19.03.2010, is null and void and not binding on the deceased first plaintiff?
2.Whether the total consideration for the sale dated 19.03.2010, is received by the deceased first plaintiff?
3.What are the rights of the plaintiffs 2 to 7 to challenge the sale deed?
4.Whether the plaintiffs are entitled to a permanent injunction restraining the defendants from alienating the suit property?
5.Whether the plaintiffs are entitled to legal possession?
6.Whether the plaintiffs are entitled to damages for use and occupation of the suit property?
7.To what other reliefs, the plaintiffs are entitled to?”
8. On 04.01.2012, the following issues were framed by the learned XII Assistant City Civil Court, Chennai in O.S.No.3848 of 2011 (Tr.C.S.No.768 of 2013) :
“1.Whether the plaintiff is entitled to the relief of possession of the suit property?
2.Whether this Court has jurisdiction to entertain this suit?
3.To what relief the plaintiff is entitled to?”
9. On 12.03.2020, the following additional issues were framed by this Court in C.S.No.925 of 2010 and Tr.C.S.No.768 of 2013 :
“a. Whether the sale deed is vitiated in view of the fiduciary relationship position of defendant No.1 over the deceased 1st plaintiff as his Advocate?;
b. Whether the sale deed dated 19.03.2010 is tainted with fraud, coercion and undue influence?; and
c. Whether the defendants 1 and 2 have got financial resources so as to give the sake consideration by way of cash with respect to the subject matter of the sale deed?”
10. During the trial, the second plaintiff (Seetha Rajakumari) in C.S.No.925 of 2010 was examined as P.W.1 and Exs.P1 to P19 were marked. On the side of the defendants, D.W.1 to D.W.5 were examined and Exs.D1 to D97 were marked. On completion of the full-fledged trial, the learned Single Judge, by common judgment dated 30.10.2024, dismissed the suit in Tr.C.S.No.768 of 2013 and decreed the suit in C.S.No.925 of 2010 observing as follows :
(i) The Sale Deed bearing Doc.No.976 of 2010 on the file of the Sub Registrar Office, Kodambakkam, executed by the deceased plaintiff, M.V.Krishna Rao in favour of defendants 1 and 2, is declared as null and void and not binding on the plaintiffs.
(ii) Permanent injunction is granted restraining the defendants from alienating or encumbering the suit property.
(iii) Mandatory injunction is granted directing defendants 1 and 2 to deliver the vacant possession of the portion under their occupation, namely Schedule B of the suit property.
(iv) The defendants 1 and 2 are directed to pay damages for use and occupation at the rate of Rs.75,000/- per month from April 2010 onwards and shall continue to pay the same till the date of decree i.e., today and at the same rate till date of handing over of the vacant possession of the Schedule B of the suit portion to the plaintiffs.
(v) The defendants 1 and 2 shall pay the costs of the suit to the plaintiffs.
11. Aggrieved by the said common judgment and decrees, the defendants in C.S.No.925 of 2010, who are the plaintiffs in Tr.C.S.No.768 of 2013, have preferred O.S.A.Nos.74 and 75 of 2025.
12. The application in A.No.6406 of 2025 was filed by the judgment debtors seeking to set aside the order dated 10.12.2025 passed by the learned Master in A.No.2985 of 2025 in E.P.No.24 of 2025, dismissing their application under Section 47 CPC. Challenging the said order, the judgment debtors have preferred O.S.A.No.126 of 2026.
13. Submissions of the learned counsel for the appellants :
13.1 Mr.Sadasharam, learned counsel appearing for Mr.V.S.Ravichandran, counsel for the appellants submitted that the findings recorded by the learned Single Judge are contrary to oral and documentary evidence on record and therefore, the same are perverse. It is contended that the finding regarding nonpayment of the sale consideration, is contrary to the express recitals contained in Ex.P10/Ex.D44 Sale Deed dated 19.03.2010, wherein the deceased Krishna Rao had acknowledged receipt of the entire sale consideration of Rs.1,21,50,000/-. It is submitted that the subsequent allegation of non-payment of consideration, could not prevail over the admitted recitals contained in the registered sale deed, particularly when such allegation is introduced in the plaint subsequently and at the instance of the third defendant (Murugesan), who claimed under the Will allegedly executed by Krishna Rao.
13.2. It is further contended that Ex.P10/Ex.D44 satisfies the requirements of Sections 54 and 55 of the Transfer of Property Act, 1882 and there was no justification for treating the transaction as sham and nominal. The learned counsel further submitted that the learned Single Judge had failed to properly appreciate the evidence relating to the source and payment of consideration, including Ex.D35 and also the evidence of D.Ws.3 and 5. Any discrepancy in the manner in which the funds were arranged could not, by itself, establish nonpayment of consideration. Further, the observation regarding restrictions on cash payments, was also stated to be irrelevant and unsupported by any applicable statutory provisions.
13.3. It is further submitted that the finding of the learned Single Judge regarding possession of the suit property, was contrary to Ex.D25 Lease Deed dated 02.04.2009, and the other contemporaneous evidence. The difference in the address mentioned in Ex.P10/Ex.D44 could not, by itself, discredit the appellants’ possession. It is submitted that execution of the sale deed, receipt of consideration and delivery of possession, were acknowledged by Krishna Rao himself and that the subsequent conduct of the parties, including handing over of the original title documents, demonstrated that the transaction was genuine and had been acted upon.
13.4. The learned counsel further contended that the learned Single Judge erred in treating the transaction as sham or nominal and in recording findings of fraud, breach of trust and unlawful enrichment against the first appellant. It is submitted that there is no evidence to establish that the first appellant had abused any advocate-client relationship or exercised any fiduciary relationship, and that the findings in this regard were based on conjectures and presumptions. It is also submitted that the earlier decree and patta established the title of Krishna Rao and that there is no reason to presume that the registered sale deed is merely an enabling or nominal document.
13.5. The learned counsel further submitted that the subsequent amendments to the plaint and the allegations introduced therein, could not be relied upon to contradict the express recitals contained in the registered sale deed. The principles embodied in Sections 91, 92 and 115 of the Indian Evidence Act, 1872, were not properly appreciated. If the parties had intended the sale deed to operate merely as an enabling or sham transaction, there ought to have been a corresponding recital or contemporaneous arrangement in the sale deed. On the contrary, Ex.P10/Ex.D44 expressly records receipt of the sale consideration by the said Krishna Rao. It is therefore argued that the findings in paragraph No.66 of the impugned judgment, including those relating to damages, stamp duty and registration charges, are unsupported by sufficient evidence and are liable to be set aside.
13.6. The learned counsel for the appellants further contended that the learned Single Judge failed to appreciate that the findings of the learned Master in dismissing the application under Section 47 C.P.C., run contrary to Order XXII C.P.C., read with Articles 120 and 121 of the Limitation Act. It is contended that upon the death of the said Krishna Rao, the suit stood abated, as his legal representatives were not brought on record within the prescribed period of limitation, thereby rending the decree in C.S.No.925 of 2010 a nullity. It is further contended that the subsequent impleadment of the legal representatives, without an order condoning the delay and setting aside the abatement, would not validate the decree, and the appellants’ participation in the proceedings could neither operate as an estoppel, nor cure the alleged statutory defect.
13.7. In support of his contentions, the learned counsel for the appellants relied upon the following decisions of the Hon’ble Supreme Court and the High Court of Madras :
(i) Ram Saran Lall and Ors., Vs. Mst. Domini Kuer and Ors., (AIR 1961 SC 1747);
(ii) Vidhyadhar Vs. Mankikrao and another (AIR 1999 SC 1441);
(iii) Prem Singh and Others Vs. Birbal and Others [ (2006) 5 SCC 353 ];
(iv) Kaliaperumal Vs. Rajagopal and Another [ (2009) 4 SCC 193 ];
(v) Vimal Chand Ghevarchand Jain and Ors., Vs. Ramakant Eknath Jadoo [ (2009) 5 SCC 713 ];
(vi) K.V.Rathnam Vs. P.B.Prince Andrew and Anr., [ AIR 2018 Madras 151];
(vii) Jamila Begum (D) Thr.Lrs., Vs. Shami Mohd.(D) Thr.Lrs and Anr., [ AIR 2019 SC 72 ];
(viii) Damodhar Narayan Sawale (D) through L.Rs Vs. Shri Tejrao Bajirao Mhaske and others [ 2023 (4) CTC 670 ];
(ix) Madan Naik (Dead) by Legal Representatives and Ors., Vs. Mst. Hansubala Devi and Ors., [ (1983) 3 SCC 15 ];
(x) Perumon Bhagvathy Devaswom, Perinadu Village Vs. Bhargavi Amma (Dead) by Lrs and Ors., [ (2008) 8 SCC 321 ];
(xi) Balwant Singh (Dead) Vs. Jadgish Singh and Ors., [ AIR 2010 SC 3043 ];
(xii) V.M.Salim Vs. Fathima Muhammed and Ors., [ (2011) 15 SCC 756 ]; and
(xiii) Maringmei Acham Vs. M.Maringmei Khuripou [ (2023) 2 SCC 473 ].
14. Submissions of the learned Senior Counsel appearing for the respondent (s) :
14.1. Per contra, Mr.T.Mohan, learned Senior Counsel appearing for the sole respondent in O.S.A.No.74 of 2025 and for respondents 1 to 6 in O.S.A.Nos.75 of 2025 and 126 of 2026 submitted that the case of the deceased first plaintiff, Krishna Rao, was that, during a period of family discord, illness and physical suffering, the first defendant, who was known to him as an Advocate and professional advisor, took advantage of his vulnerable position and induced him to execute a sham and nominal sale deed in respect of the suit property. It is further submitted that, though the deceased plaintiff had obtained a decree in O.S.No.2707 of 1998, declaring his title on the basis of adverse possession, he did not possess an independent title deed and was advised to execute the sale deed in favour of the first defendant to create an apparent title and facilitate the subsequent sale of the property.
14.2. The learned Senior Counsel further submitted that the first defendant had introduced to deceased Krishna Rao through their common friend, Ramki @ Ramakrishnan, and had provided legal advice and assistance to him. It is further submitted that the documentary evidence, including Ex.D25 and other contemporaneous documents, established their prior acquaintance and contradicted the first defendant’s denial of such relationship. It is further contended that the first defendant had advised the said Krishna Rao in relation to the property disputes and had assisted him in preparing the Police complaint, dated 18.03.2009. Ex.P2 and Ex.D15 were relied upon to contend that the subsequent denial by the first defendant, is contrary to the documentary evidence.
14.3. It is further contended that the alleged tenancy under Ex.D25 dated 02.04.2009, is not a genuine one and that the defendants had failed to produce rental receipts, payment particulars, utility records or other contemporaneous materials to establish their occupation as tenants. The learned Senior Counsel also relied upon the addresses of defendants 1 and 2 reflected in Ex.P10/Ex.D.44, Ex.D25 and Ex.D41 and the other contemporaneous documents to contend that they were residing at Kakkan Colony, Nungambakkam, Chennai, and not in the suit property. According to the learned Senior Counsel, the said circumstances supported the plaintiffs’ case that the alleged tenancy was a device connected with the subsequent sale deed.
14.4. It is further submitted that the circumstances surrounding the transaction, including the involvement of Ramki @ Ramakrishnan, Achuthalingam, the third defendant and the Advocates associated with the parties, as well as the inconsistencies in the evidence of the first defendant, cast serious doubt on the genuineness of the transaction. It is contended that the sale deed was brought about in circumstances in which the first defendant was in a position of trust and that the transaction was consequently liable to be treated as sham and nominal.
14.5. On the question of consideration, it is submitted that the first defendant had failed to satisfactorily establish the source and actual payment of the sale consideration of Rs.1,21,50,000/-. The learned Senior Counsel referred to the alleged borrowings, contribution by D.W.5, sale of gold ornaments and remittance of funds from Singapore and contended that these sources were not supported by contemporaneous materials and they are sufficient to establish the availability of the requisite funds on the date of the transaction. It is further submitted that the Bank statements and Income Tax records relied upon by the defendants, did not establish the actual source and payment of the sale consideration.
14.6. It is further submitted that on the question of abatement, the suit had not been abated on the death of the original plaintiff, Krishna Rao, on 21.12.2010, as the application for impleadment of his legal representatives had been filed on 17.03.2011 itself, i.e., within the period prescribed under Article 120 of the Limitation Act, and the legal representatives were thereafter brought on record.
14.7. With regard to damages/mesne profits, they are based on the defendants’ alleged wrongful occupation of the suit property. Reliance is also placed upon Ex.D53 and the oral and documentary evidence relating to the nature, location and Income-generating potential of the property, to support the claim of Rs.75,000/- per month. It is further submitted that the taped conversations marked as Ex.D7, along with the admissions of the first defendant and other evidence, directly substantiated the plaintiffs’ case. It is therefore submitted that, on an overall appreciation of the oral and documentary evidence, the learned Single Judge rightly found that the first defendant, having acted as counsel for the deceased first plaintiff, had failed to establish the fairness and bona fides of the transaction and had obtained the registered sale deed, by taking advantage of the trust reposed in him. Hence, he prays for dismissal of the intra- Court appeals.
14.8. In support of his contentions, the learned Senior counsel for the respondent(s) relied on the following decisions for the following prepositions :-
1. NO CONSIDERATION
| S.No. | CITATION |
| 1. | AIR 1954 Orissa 23 (Balabhadra Misra and Ors. vs. Srimathi Nirmala Sundari Devi and Ors.) |
| 2. | AIR 1957 Orissa 243 (Hara Bewa and Ors., vs. Banchanidhi Barik and Ors.) |
| 3. | AIR 1961 Orissa 19 (Michhu Kuanr and Ors., vs. Raghu Jena and Ors.,) |
| 4. | AIR 2006 Allahabad 273 (Ramu Mahabir v. Gurhoo Sam) |
| 5. | 2007 (4) CTC 186 (Andritz Oy rep. Through Power of Attorney Agent Mr.Siraj Ahmad, New Delhi vs. Enmas Engineering Pvt. Ltd., rep. By its Director and Principal Officer, Chennai and another |
| 6. | 2007 Patna 59 (Dhanbarti Koerin vs. Shyam Narain Mahtonand another) |
| 7. | 2012(1) CTC 53 (Lakshmi and 2 Ors., vs. Muthusamy) |
| 8. | 2017 (6) Scale 551 (Champa Devi vs. Sudama Dubey (Dead) and Ors. |
| 9. | 2021 (2) MWN (Civil) 825 (Kewal Krishnan vs. Rajesh Kumar & Ors., etc) |
| S.No. | CITATION |
| 1. | ILR 1962 P & H (Vol.XV-(2)) 201 [Amrit Lal C.Shaw vs. Ram Kumar, Advocate) |
| 2. | AIR 1992 SC 1398 ( Devendra Bhai Shankar Mehta vs. Ramchandra Vithaldas Sheth & Another) |
| 3. | (1998) 9 SCC 169 (Rajendra Nath Bhargava (Dead) by Lrs., vs. Ramchandra Kasliwal & Another) |
| S.NO. | CITATION |
| 1. | MANU/PR/0018/1923 ( Raghunath Prasad vs. Sarju Prasad and Ors.,) |
| 2. | AIR 1937 Calcutta 492 (Abdur Rauff vs. Aymona Bili) |
| 3. | AIR 1938 Bombay 304 (Shivgangawa Madiwalappa Vulavi vs. Basangouda Govindagouda Patil) |
| 4. | AIR 1956 Hyderabad 114 [ Syed Noor Vs. Qutbuddi ] |
| 5. | AIR 1963 SC 1279 (Ladli Prashad Jaiswal vs. The Karnal Distillery Co.Ltd., Karnal and Ors.,) |
| 6. | AIR 1966 A.P.104 (Bandarapalli Mastanamma being minor rep.by the next friend and mother of Bandarupalli Nagaratnamma and ors., vs. Ganguri Adinarayana and ors., |
| 7. | AIR 1973 Orissa 18 ( Bancha Bhol and Ors., vs. Sana Bewa and Ors.) |
| 8. | AIR 1973 M.P.252 (Smt.Koze and another vs. Makhan Singh) |
| 9. | AIR 1982 Allahabad 376 (Pratima Chowdhury vs. Kalpana Mukherjee and Another) |
| 10. | AIR 1984 H.P.11 (Smt.Takri Devi Vs. Smt.Rama Dogra and Ors.,) |
| 11. | 1990 (3) SCC 1 (Mayawanti vs. Kaushalya Devi) |
| 12. | 1998 Cal.278 ( Kartick Prasad Gorai & Ors., vs. Neami Prasad Gorai and Ors.) |
| 13. | 2008(2) CTC 433 (Suguna and another vs. Vinod G.Nehemiah and Ors.,) 14. AIR 2014 SC 1304 (Pratima Chowdhury Vs. Kalpana Mukherjee and Another) |
| S.No. | CITATION |
| 1. | AIR 1947 OUDH 89 (Ram Kalap Pande vs. Bansidhar and another) |
| 2. | AIR 1951 SC 280 (Bishundeo Narai and another vs. Seogeni Rai and Ors.,) |
| 3. | AIR 1975 Gauhati 30 (Guljan Bibi vs. Nazir-uddin Mia) |
| 4. | AIR 2003 SC 4351 (Krishna Mohan Kul Alias Nani Charan Kul and another vs. Pratima Maity and Ors.) |
| 5. | (1996) 5 SCC 550 (India Bank vs. Satyam Fibres (India) Pvt.Ltd.) |
| 6. | AIR 1996 SC 2754 (Smt.Bhatori vs. Smt.Ram Pirari) |
| 7. | AIR 2005 SC 3330 (Bhaurao DagduParalka vs. State of Maharashtra and Ors.,) |
| 8. | 2005 AIR SCW 3603 (State of Andhra Pradesh and another vs. T.Suryachandra Rao) |
| 9. | 2020(1) CTC 616 (Sivakumar and another vs. Arasu Rathinam and 4 Ors.,) |
| 10. | (2021) 4 SCC 713 (Avitel Post Studioz Limited and Ors., vs. HSBC PI Holdings (Mauritius) Ltd., |
| S.No. | CITATION |
| 1. | 2018(6) CTC 465 ( Royal Bank of Scotland NV vs.Dr.T.D.Naidu) |
16. The specific case of the appellants is that they were tenants under the deceased Krishna Rao and subsequently, they purchased the suit property from him under the registered Sale Deed dated 19.03.2010, pursuant to which, the possession was delivered, except for the portion occupied by his wife, Seetha Rajakumari. They contend that the Revenue Records were thereafter mutated in their favour and that, following the death of Krishna Rao, his wife continued in occupation of the suit property only as a permissive occupant. According to the appellants, the execution of the Sale Deed is admitted and the dispute essentially relates to the payment of consideration. They therefore contend that the suit instituted by Krishna Rao challenging the Sale Deed, is not maintainable and that their suit for recovery of possession, ought to have been decreed. Aggrieved by the common judgment, whereby C.S.No.925 of 2010 was decreed and Tr.C.S.No.768 of 2013 was dismissed, they have preferred O.S.A.Nos.74 and 75 of 2025; further challenging the order passed by the learned Single Judge in A.No.6406 of 2025 in E.P.No.24 of 2025, they have preferred O.S.A.No.126 of 2026.
17. The specific case of the respondents is that the first appellant, being an Advocate known to Krishna Rao, took advantage of his vulnerable circumstances and induced him to execute the Sale Deed without any intention to convey the property and without payment of the sale consideration. According to them, upon realising the alleged fraud, the said Krishna Rao instituted C.S.No.925 of 2010, challenging the Sale Deed. During the pendency of the suit, Krishna Rao died, thereafter Murugesan sought to come on record on the strength of the Will dated 24.12.2009, which was disputed by the wife and children of Krishna Rao. Subsequently, they are impleaded as plaintiffs 2 to 7, while Murugesan was transposed as the third defendant. The respondents contended that the said Krishna Rao neither intended to transfer the title to the suit property, nor received any sale consideration, and that the Sale Deed was brought about by taking undue advantage of the fiduciary trust reposed on the first appellant. Therefore, they support the findings of the learned Single Judge, for decreeing C.S.No.925 of 2010 and dismissing Tr.C.S.No.768 of 2013.
18. The points that arise for consideration in these appeals are as follows:
(i) Whether the registered Sale Deed dated 19.03.2010 executed by the deceased Krishna Rao in favour of the appellants, is a genuine and valid transaction supported by consideration, and if so, whether the same is binding on the respondents?
(ii) Whether the deceased Krishna Rao let out a portion of the property to the appellants under the Lease Deed dated 02.04.2009, and whether the judgment and decree passed by the learned Single Judge in C.S.No.925 of 2010, is liable to be set aside?
(iii) Whether the appellants are entitled to recover possession of a portion of the suit property, and whether the judgment and decree passed by the learned Single Judge in Tr.C.S.No.768 of 2013, is liable to be set aside? And
(iv) Whether the order passed in A.No.6406 of 2025 in E.P.No.24 of 2025 is liable to be set aside ?
19. The main contention of the learned counsel for the appellants is that the execution of the registered Sale Deed, dated 19.03.2010 by the deceased Krishna Rao, is admitted and, that the subsequent allegation of non-payment of the sale consideration, cannot invalidate the transaction. It is contended that the recitals in Ex.P10/Ex.D44, which expressly acknowledge receipt of the entire sale consideration of Rs.1,21,50,000/- by the deceased first plaintiff, and that the subsequent mutation of the Revenue Records, establish the appellants’ title. It is therefore contended that, having regard to Sections 91 and 92 of the Indian Evidence Act, 1872, subsequent oral evidence cannot be admitted or relied upon to contradict the terms of the registered instrument.
20. There cannot be any quarrel with the proposition that mere nonpayment of the sale consideration, by itself, would not render a completed sale void. However, the case of the respondents/plaintiffs 2 to 7 is not founded merely upon non-payment of consideration. Their specific case is that, though the Sale Deed was executed and registered, there was no real sale transaction and that the recitals relating to consideration, did not represent the true nature of the transaction. The issue therefore is as to whether the Sale Deed represented a genuine and concluded sale transaction, which has to be determined on an appreciation of the entire oral and documentary evidence and the surrounding circumstances.
21. It is not in dispute that Ex.P10/Ex.D44, Sale Deed dated 19.03.2010, was executed by the said Krishna Rao in favour of the appellants. However, the mere admission of execution of the document, does not, by itself, conclude the issue regarding the genuineness of the transaction, particularly when the nature of the transaction, the passing of consideration and the circumstances surrounding its execution, have been specifically put in issue. The appellants, who rely upon the transaction, were bound to establish the same on the strength of the cogent evidence available on record.
22. In the present case, the sale consideration is Rs.1,21,50,000/-. The learned Single Judge, upon appreciation of the evidence relating to the alleged borrowings, source of funds, sale of jewellery, Bank statements and Income-Tax records, found that the appellants/defendants 1 and 2 had not satisfactorily established the availability and actual payment of the entire sale consideration. We have independently considered the materials placed before us and find no perversity or material misappreciation of evidence in the said finding.
23. Further, the evidence discloses that the first appellant was known to Krishna Rao and had acted as an Advocate in matters concerning him. The learned Single Judge, on appreciation of the evidence, found that the first appellant was in a position of trust and that the circumstances in which the Sale Deed came to be executed, were inconsistent with a normal independent transaction. The said finding is based on the evidence available on record and has not been shown to be perverse or contrary to the evidence.
24. The contention relating to Ex.D25 dated 02.04.2009 and the subsequent mutation of Revenue Records, also does not advance the case of the appellants. While those documents may establish certain contemporaneous circumstances, they do not, by themselves, establish the genuineness of the subsequent Sale Deed or passing of the entire sale consideration. It is settled proposition of law that the mutation of Revenue Records does not, by itself, confer any title.
25. The contention of the appellants that the earlier decree in favour of the said Krishna Rao, coupled with the absence of an independent title deed, warranted a finding in their favour, but the same cannot be accepted. The clear title of Krishna Rao to the suit property and the genuineness of the subsequent transaction under Ex.P10/Ex.D44, are entirely separate and distinct issues. The mere fact that the said Krishna Rao had title to the property, does not, by itself, establish the genuineness or bona fide of the subsequent sale transaction. The learned Single Judge, was therefore, justified in examining the circumstances surrounding execution of the Sale Deed, including the evidence relating to payment of consideration and the subsequent conduct of the parties.
26. It is true that the plaintiffs are required to establish their case by acceptable evidence and, in the present case, they relied not merely on the alleged absence of consideration, but also on the relationship between the parties, the circumstances surrounding the execution of the document, the evidence relating to the source and payment of consideration, and the subsequent conduct of the parties. On an overall appreciation of the evidence, the learned Single Judge concluded that the transaction was sham and nominal. We find no perversity or infirmity in the said finding of the learned Single Judge warranting interference in these intra-Court appeals.
27. Once the Sale Deed dated 19.03.2010, is held to be null and void and not binding upon plaintiffs 2 to 7, the appellants/defendants 1 and 2 cannot claim any independent right to retain the possession solely on the strength of the said Sale Deed. Therefore, the dismissal of the suit in Tr.C.S.No.768 of 2013, insofar as the relief of recovery of possession is concerned, does not warrant interference by this Court.
28. The next contention of the appellants concerns the alleged abatement of C.S.No.925 of 2010, consequent upon the death of the original plaintiff, Krishna Rao, on 21.12.2010. It is contended that his legal representatives were not brought on record within the prescribed period and that the suit, therefore, stood abated. The records, however, disclose that Murugesan, claiming under the Will, dated 24.12.2009, filed A.No.2171 of 2011 seeking to implead him as the legal representative of the deceased Krishna Rao, and the application was filed within the prescribed period (90 days) and was allowed. Thereafter, the wife and children of the deceased, filed A.No.5709 of 2011 and were brought on record as plaintiffs 2 to 7, while Murugesan was subsequently transposed as the third defendant. The plaint was accordingly amended and the suit proceeded with the parties on record.
29. In view of the above facts and circumstances, the contention that the suit had abated and that the decree was consequently a nullity, cannot be accepted. Since the necessary steps for bringing the legal representatives on record, were taken within the prescribed period and the orders were passed in that regard, were not set aside in any appropriate proceedings. The suit thereafter proceeded with the parties on record and ultimately resulted in the impugned judgment and decree. The subsequent dispute regarding Murugesan's claim under the Will and his transposition as a defendant does not, by itself, result in abatement of the suit. The learned Master rightly rejected the application under Section 47 of the Code of Civil Procedure. Therefore, we find no ground to interfere with the order challenged in O.S.A.No.126 of 2026.
30. The further contention that the suit in C.S.No.925 of 2010 was instituted at the instance of Murugesan, also does not affect its maintainability. The suit was instituted by the said Krishna Rao during his lifetime. The subsequent claim made by Murugesan under the Will and his subsequent transposition as a defendant, are all matters arising during the pendency of the suit and do not invalidate its original institution.
31. The decisions relied upon by the learned counsel on either side are distinguishable on facts and, having regard to the facts and circumstances of the present case, they do not apply to the case of either party.
32. This Court, as an appellate Court, has re-appreciated the pleadings, oral and documentary evidence and the findings recorded by the learned Single Judge and finds that the appellants have failed to establish that the Sale Deed dated 19.03.2010 represented a genuine sale transaction supported by the consideration recited therein. On an overall appreciation of the evidence and the surrounding circumstances, the learned Single Judge rightly concluded that the transaction was sham and nominal and consequently, rightly decreed the suit filed by the deceased first plaintiff and dismissed the suit filed by the appellants/defendants 1 and 2. We find no perversity or infirmity in the said finding warranting interference in these intra-Court appeals. Similarly, the contentions regarding abatement of C.S.No.925 of 2010 have no merit. Consequently, the common judgment and decree passed in C.S.No.925 of 2010 and Tr.C.S.No.768 of 2013, as well as the order challenged in O.S.A.No.126 of 2026, do not warrant interference by us.
33. For the foregoing reasons, O.S.A.Nos.74 and 75 of 2025 and O.S.A.No.126 of 2026 are dismissed. The common judgment and decree passed by the learned Single Judge in C.S.No.925 of 2010 and Tr.C.S.No.768 of 2013 and the order in A.No.6406 of 2025 in E.P.No.24 of 2025 are confirmed. There shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.