IN THE HIGH COURT OF JUDICATURE AT MADRAS
P. KALAIYARASAN, J.
Kural Vendhan Natchatra Mary @ K.N. Mary - Plaintiff
Vs.
Gunalan and Ors. - Defendants
C.S. No. 922 of 2009
Decided On : 22-03-2017
Transfer of Property Act - Section 54 - Suit property - Sale Deed - Legal heir - Permanent injunction - Plaintiff got married to in year has got three brothers - Younger brother is 1st defendant and his daughter is the 2nd defendant - Suit property in was purchased under Sale Deed dated in name of wives of the three brothers including plaintiff - Therefore, plaintiff is entitled to 1/3rd undivided share in suit property - 1st defendant and his wife met the plaintiff in Trichy b- 1st defendant represented that plaintiffs late husband had a Fixed Deposit for in his name at Colombo and since plaintiff is the sole legal heir, only she can claim the said amountn - He further represented that in order to receive the amount, she has to give an unregistered Power of Attorney in his name - Plaintiff came to sign unregistered Power of Attorney as requested by 1st defendant - 1st defendant got signature of plaintiff on a readily typed and prepared document, drafted in English, which is said to be the unregistered Power of Attorney – Held, plaintiff is that the entire sale consideration has not been paid and only was paid - In Sale Deed Ex.P3, there is recital to effect that entire sale consideration was received - Oral evidence contrary to the recitals in the document is not acceptable - Even if there is any arrear in sale consideration, as rightly pointed by learned counsel for defendants 1 and 2, plaintiff has to get redressal by way of filing a separate suit for recovery of the balance sale consideration - Sale deed clearly recited that consideration had been paid - It is settled law that payment of the price is not necessarily a sine qua non to the completion of sale - This follows from words of Sec.54 of Transfer of Property Act - If price is not paid, seller on that account cannot repudiate sale and his only remedy is to sue for the price or the balance of price unpaid - Plaintiff cannot claim to set aside Sale Deed on ground that consideration has not been passed - 1st defendant examined as D.W.1 has categorically deposed that plaintiff executed Sale Deed - Plaintiff as P.W.1 admits her signature in Sale Deed. C.W.1- witness to document has also deposed that she saw plaintiff signing in Sale Deed - Thus, execution of Sale Deed has been proved - As per the recital of Sale Deed, payment of sale consideration has been proved - In result, suit is dismissed
This suit has been filed seeking for a declaration that the Sale Deed dated 06.03.2009 as null and void and for consequential permanent injunction restraining the defendants 1 and 2 from making any improvement and also from preventing the plaintiff from entering the suit property as joint owner and also for mandatory injunction to the 3rd defendant to cancel the said Sale Deed.
2. The plaint averments are as follows :
The plaintiff got married to Kural Vendhan in the year 1973. Kural Vendhan has got three brothers, namely, Dr.Tamilarasu, Anbalan and Gunalan. Younger brother Gunalan is the 1st defendant and his daughter is the 2nd defendant. The suit property in Adyar was purchased under the Sale Deed dated 10.03.1982 in the name of the wives of the three brothers including the plaintiff. Therefore, the plaintiff is entitled to 1/3rd undivided share in the suit property. Plaintiff's husband Kural Vendhan passed away on 04.12.1997. The plaintiff is living separately in Trichy. She has been getting share in the rental income of the property through her elder brother-in-law Dr.Tamilarasu.
3. While so, in the month of February 2009, the 1st defendant and his wife Vasundhara Gunalan met the plaintiff in Trichy. The 1st defendant represented that the plaintiff's late husband had a Fixed Deposit for Rs.10,00,000/- in his name at Colombo and since the plaintiff is the sole legal heir, only she can claim the said amount. He further represented that in order to receive the amount, she has to give an unregistered Power of Attorney in his name. The plaintiff came to Chennai on 27.02.2009 to sign the unregistered Power of Attorney as requested by the 1st defendant. The 1st defendant got the signature of the plaintiff on a readily typed and prepared document, drafted in English, which is said to be the unregistered Power of Attorney. The plaintiff also signed the same, believing that the power deed is only for the purpose of claiming Rs.10,00,000/- Fixed Deposit.
4. In the first week of March 2009, the 1st defendant called the plaintiff and asked her to come to Chennai to give a new Power of Attorney in the name of his daughter and also to receive the available fund. The plaintiff came to Chennai and on her arrival, she was called to the Sub Registrar Office at Adyar on 06.03.2009. The 1st defendant handed over a sum of Rs.5,00,000/- to the plaintiff. Esther Roche, who accompanied the plaintiff was asked to count the cash. While she was counting the cash, the signatures of the plaintiff was obtained in the documents and the plaintiff believing that the document is only power deed, signed on it. On 27.03.2009 at the instructions of the 1st defendant, the plaintiff came to Chennai and received a sum of Rs.2,00,000/- in cash and Rs.3,00,000/- through a bearer cheque.
5. In the meantime, through Dr.Tamilarasu, the elder brother of the 1st defendant, the plaintiff came to know that the 1st defendant and his family members have played a fraud on the plaintiff, taking advantage of her innocence and ignorance and betraying the trust she had on the 1st defendant's family members, the 1st and 2nd defendant and their family members cheated the plaintiff by getting her signature on the Sale Deed and getting it registered at the Sub Registrar Office, Adyar by fraudulent and deceitful means, without the consent of the plaintiff.
6. Having come to know that Power Deed has been obtained with respect to Triplicance property also, the plaintiff caused a letter dated 25.03.2009 to cancel the unregistered Power of Attorney dated 27.02.2009. The 1st defendant sent a reply dated 30.03.2009 with false allegations. The suit property is in prime location and the value of the property is in crores. However, the Sale Deed was executed for a sum of Rs.26,00,000/-. The plaintiff appealed the 1st defendant to cancel the Sale Deed, but he never responded. Therefore, the present suit has been filed.
7. The averments in the written statement filed by the defendants 1 and
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