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Madras High Court
A. SELVAM, J.
A. Anthony Pushpam Ammal
Versus
Rev. Mother Superior & Another
Second Appeal No.1016 of 1997
Decided on : 04-12-2008
C.P.C. - Property Dispute - Minor Inam Abolition Act, 1963 - Evidence Act, 1872, Section 90 - Sale Deed - Thumb Impression - Burden of Proof - Presumption of Documents Thirty Years Old
Fact of the Case:
The deceased first plaintiff filed a suit for declaration and perpetual injunction claiming absolute property rights. Defendants claimed the first plaintiff had sold the property. Trial and appellate courts dismissed the suit. Second appeal was filed challenging the concurrent judgments.
Finding of the Court:
The Court found that the deceased first plaintiff had executed a sale deed in favor of Joseph Roche, and the thumb impression on the deed was not obtained through fraud or misrepresentation. The Court also held that the presumption under Section 90 of the Evidence Act applied to the 30-year-old sale deed, and the plaintiffs were not entitled to the reliefs sought.
Issues: The issues included compliance with procedural rules, burden of proof, and the applicability of the presumption under Section 90 of the Evidence Act.
Ratio Decidendi: The burden of proof lies on the party alleging fraud, misrepresentation, or undue influence. The presumption under Section 90 of the Evidence Act applies to documents thirty years old, and the party relying on such documents must prove their execution and attestation.
Final Decision: The second appeal was dismissed, and the judgments and decrees of the lower courts were confirmed.
(Second appeal has been filed under Section 100 of C.P.C., against the judgment and decree dated 22.01.1997 passed in Appeal Suit No.129 of 1993 by the Subordinate Court, Tuticorin, confirming the judgment and decree dated 30.04.1993 passed in Original Suit No.533 of 1990 by the Principal District Munsif Court, Tuticorin.)
Challenge in this second appeal is to the concurrent judgments passed in Original Suit No.533 of 1990 by the Principal District Munsif Court, Tuticorin and in Appeal Suit No.129 of 1993 by the Subordinate Court, Tuticorin.
2. The deceased first plaintiff has instituted Original Suit No.533 of 1990 on the file of the trial Court for the reliefs of declaration and perpetual injunction, wherein the present respondents have been shown as defendants.
3. It is averred in the plaint that the suit property is the absolute property of the first plaintiff and the same is originally belonged to one Sri Sankararameswara Thevasthanam. The first plaintiff has enjoyed the same. The suit village has been taken over by the Government under Minor Inam Abolition Act, 1963 and subsequently a patta has been granted in the name of the first plaintiff. The husband of the first plaintiff has managed the suit property and after his demise, the first plaintiff has come to know that the defendants are claiming title to the suit property. The first plaintiff has issued a legal notice dated 09.04.1990 and the first defendant has given a false reply notice. Under the said circumstances, the present suit has been instituted for the reliefs indicated supra.
4. It is averred in the written statement filed by the first defendant that the first plaintiff has sold the suit property in favour of one Joseph Roche on 26.06.1959 and after execution of sale deed dated 26.06.1959, the first plaintiff has had no right over the suit property. Therefore, the plaintiff is not entitled to get the reliefs sought for in the plaint and altogether the present suit deserves dismissal.
5. In the written statement filed on the side of the second defendant it is stated that the first plaintiff has already sold the suit property and the same has been purchased by the Joseph Roche in favour of Leprosy Home and there is no merit in the suit and the same deserves dismissal.
6. On the basis of the divergent pleadings raised on either side, the trial Court has framed necessary issues and after pondering both the oral and documentary evidence, has dismissed the suit. Against the judgment and decree passed by the trial Court, the second plaintiff as appellant has preferred Appeal Suit No.129 of 1993 on the file of the first appellate Court. The first appellate Court, after hearing both sides and after reappraising the evidence available on record, has dismissed the appeal, whereby and whereunder confirmed the judgment and decree passed by the trial Court. Against the concurrent judgments, the present second appeal has been filed at the instance of the second plaintiff as appellant.
7. At the time of admission of the present second appeal, the following substantial questions of law have been formulated for consideration;
“a) Whether the judgment and decree of the lower appellate Court is liable to be set aside, by reason of its failure to comply with the mandatory provisions under Order 41 Rule 31 C.P.C?
b) Whether on account of casting of burden wrongly, the findings of the Courts below are vitiated?
c) Whether the presumption under Section 90 of the Evidence Act can under such circumstances be drawn to non-suit the plaintiff?
8. The learned counsel appearing for the appellant/second plaintiff has vehemently contended that the suit property is the absolute property of the first plaintiff and it is stated on the side of the defendants that the first plaintiff has executed a sale deed dated 26.06.1959 in favour of one Joseph Roche and the first plaintiff is nothing but an illiterate lady and she has not known the recitals of the said sale deed dated 26.0
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