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2018 Supreme(Mad) 4112
IN THE HIGH COURT OF JUDICATURE AT MADRAS
R. SUBBIAH, C. SARAVANAN, JJ.
Dr. Rathinasamy - Appellant
Versus
Selvakumarasamy & Another - Respondents
A.S. No. 35 of 2017 & C.M.P. Nos. 1473 & 9474 of 2017
Decided On : 02-11-2018
For the Appellant :R. Muralidharan, S. Gunalan, Advocates
For the Respondents:A. Kumana Raja, Advocate
The main legal point established in the judgment is the prohibition under Section 49 of the Registration Act, which renders unregistered and under-stamped documents inadmissible for proving transactions such as the alleged payment of Rs.27 lakhs. The court's decision was influenced by the interpretation and application of this legal principle.
Headnote:
Fraud - Usufructuary Mortgage - Registration Act - [Section 58(d), Section 62 of the Transfer of Property Act, 1882, Section 49 of the Registration Act] - The court discussed the creation of an alleged usufructuary mortgage and the payment of money in the context of unregistered and under-stamped documents. The court highlighted key legal provisions such as the definition of usufructuary mortgage and the rights of an usufructuary mortgagor under the Transfer of Property Act, as well as the prohibition under Section 49 of the Registration Act. The court's decision was influenced by the interpretation of these legal provisions and their application to the case, leading to the partial setting aside of the judgment and decree.
Fact of the Case:
The suit was filed by the respondents/plaintiffs against the appellant/defendant for a judgment and decree for an amount of Rs.27 lakhs allegedly paid by the respondents/plaintiffs to the appellant/defendant in two installments. The appellant/defendant denied receiving Rs.27 lakhs and alleged that the documents were fabricated and back-dated. The lower court framed issues related to the validity of the transaction, receipt of Rs.27 lakhs, entitlement of the plaintiff, and relief. The lower court decreed the suit, but the appellant/defendant appealed.
Finding of the Court:
The court found that the suit was not barred under law and addressed the admissibility of unregistered and under-stamped documents. It held that the documents could not be relied upon to prove the alleged payment of Rs.27 lakhs, as they were not admissible under Section 49 of the Registration Act. The court also noted procedural irregularities and set aside the judgment and decree to the extent of the amount beyond Rs.5,00,000/- and interest thereon.
Issues: The issues included the validity of the transaction, receipt of Rs.27 lakhs, entitlement of the plaintiff, and relief. The court also addressed procedural irregularities related to the pendency of an earlier suit.
Ratio Decidendi: The court's decision was based on the interpretation and application of legal provisions related to usufructuary mortgage, registration of documents, and procedural rules under the Civil Procedure Code. It emphasized the prohibition under Section 49 of the Registration Act and the requirement for admissibility of documents under the Stamp Act.
Final Decision: The court partially set aside the judgment and decree, allowing the respondents/plaintiffs to claim an amount of Rs.5,00,000/- with interest at 9% from the date of payment till the date of deposit of the amount into Court. No costs were awarded.
C. Saravanan. J.
1. The above appeal has been filed against judgment and decree dated 21.11.2013 passed by the V Additional District and Sessions Judge, Coimbatore in O.S.No.433 of 2011.
2. By the said judgment and decree, the suit filed by the respondents/plaintiffs has been decreed as prayed for against the appellant/defendant.
3. The suit was filed by the respondents/plaintiffs against the appellant/defendant for a judgment and decree for an amount of Rs.27 lakhs allegedly paid by the respondents/plaintiffs to the appellant/defendant in two installments of Rs.10 lakhs vide Exhibit-A1 dated 31.12.2008 and Rs.17 lakhs vide Exhibit-A2 Deed dated 22.01.2009.
4. It was alleged that the appellant/respondent created an unregistered “Usufructuary Mortgage” of his agricultural land in favour of the respondents/plaintiffs vide Exhibits A1 and A2.
5. The appellant/defendant herein admits having received a sum of Rs. 5 lakhs only on 30.1.2009 but has denied having received Rs.27 under the respective documents. The appellant/defendant submits that Exhibit A1 and A2 were fabricated and back-dated with his signature after obtaining signatures and blank papers on 30.01.2009.
6. In the written statement, the appellant/defendant herein has submitted that though he had borrowed only a sum of Rs. 5 lakh, and that he had paid only a sum of Rs. 7500/- to the first defendant/plaintiff during first week of March 2009.
7. It was stated that the respondents/plaintiffs demanded interest at 30% per annum and since the appellant/defendant did not agree to pay the interest over and above 18%, the signatures obtained in blank stamp papers and green sheets were filled up fraudulently to make it seem as if the appellant/defendant borrowed a sum of Rs. 27 lakhs and had created an usufructuary mortgage in favour of them as per Exhibit A1 and A2.
8. The appellant/defendant has alleged that the respondents/plaintiffs insisted on the appellant/defendant giving pronote/ cheque coupled with signatures in blank green sheets and stamp papers as security for advancing a loan of Rs. 5 lakh on 30.1.2009 which he obliged which was later filled up and back-dated to make it seem as if the appellant/defendant had borrowed a sum of Rs. 27 lakhs and created a “Usufructuary Mortgage” of land in favour of the respondents/plaintiffs as per Exhibit A1 and A2.
9. The respondents/plaintiffs herein had earlier filed O.S. No.63 of 2009 before the Sub-Judge, Pollachi for a permanent injunction to restrain the appellant/defendant from interfering with the alleged peaceful possession of agricultural land.
10. They also filed I.A.No.225 of 2009 for a temporary injunction and secured an interim ex parte order.
11. On the date of the impugned judgment and decree, the O.S.No.63of 2009 is pending before the Sub-Court at Pollachi.
12. The appellant/defendant herein therefore filed CRP pursuant to which the learned Sub-Judge, Pollachi dismissedI.A.No.225 of 2009 on 14.12.2009.
13. The respondents/plaintiffs herein also filed C.M.A.No.8 of 2010 before the District Court, Coimbatore also came to be dismissed eventually. Thereafter, the present suit came to be filed.
14. The impugned judgment and decree in O.S.No.433 of 2011has been contested on several grounds. It was stated that the suit was filed without obtaining the leave of the Court under Order 2 Rule 2 of Civil Procedure Code (CPC).
15. It is also contended that the plaint in O.S.No.433 of 2011 was filed without filing necessary application under Order 23 of the CPC and was therefore liable to be rejected under Order VII Rule 11 of CPC.
16. The respondents/plaintiffs filed 14 Exhibits vide Exhibits A1- 14 and examined 4 witnesses namely respondent No.2/plaintiff No.2 as PW1, one Rajendran as PW2 who allegedly signed and allegedly witnessed the execution of Exhibit A-1 and A-2.
17. PW3 was also one of the witnesses to Exhibit A2. PW 4 depos
