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IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
A. Mahimaidas – Appellant
Versus
P. Parameswari – Respondent
S.A. Nos. 332, 333 of 2015
Decided On : 18-12-2018
Civil Procedure Code,1908 - Section 100 - Limitation Act - Articles 91 and 59 - Specific Relief Act - Section 32 - Contract Act - Sections 16 and 17 - Suit for peaceful possession and enjoyment - Suit for permanent Injunction - For relief of declaration that deed of cancellation executed by respondents registered as document - SRO Periamet is illegal unlawful null and void and for directing respondents to deliver vacant possession of suit property to him and for consequential permanent injunction restraining respondents and their men agents representatives or anybody on their behalf from anyway dealing with suit property either by way of sale mortgage or in any other manner - Had been laid by respondents against appellant for relief of declaration to declare that alleged sale-deed said to have been executed by respondents in favour of appellant in respect of suit property registered as document on file of SRO Periamet as void ab-initio invalid null and void and non-est in eyes of law and for relief of permanent injunction restraining defendant or his men servants agents or anybody claiming through him from and in any way interfering with respondents peaceful possession and enjoyment of suit property - Inasmuch as common issues were involved in both suits it is seen that both suits were jointly tried by trial Court and accordingly evidence has come to be recorded in laid by appellant herein and in support of appellants case was examined and were marked and on side of respondents was examined and were marked - Whether Appellate Judge was right in reversing well reasoned judgment of trial Court without assigning any reason for setting aside findings recorded by trial Court as required by Section 96 of CPC? Whether Appellate Judge was right in placing burden of proof on appellant in regard to admitted execution of a registered document? Whether Appellate Judge was right in accepting plea of non est factum when respondents had not substantiated various allegations against their former counsel? - Held, Court have seen that on occasions courts have used word onus in lieu of burden and in certain circumstances it is made to appear as if Courts treated this rule of burden of proof only as a rule of onus of proof - This impression one gets only when one views Authorities superficially - S.16 of Indian Contract Act particularly deals with requirement of evidence and onus in this behalf in a case in a case in which undue influence is alleged - It can be seen from language of this section that court has to ask person who has founded his claim upon a document to prove that grant was not obtained by undue influence only when initial onus is discharged by person who alleges undue influence and that there has been such relations existing between parties that one of parties was in a position to dominate will of other and could use position to obtain an unfair advantage - Court have dilated to rule of initial burden of proof in case where allegations of undue influence on fraud are made and principles that are borne in mind before rule of onus probandi is applied - Court have adverted to this aspect of law for purpose of keeping distinction as to law of burden of proof in case of pardanashin and illiterate woman or case where rule of non est factum is applied and a case otherwise falling in category of cases of undue influence and fraud in which initial burden has to be discharged by person making allegations before onus probandi is applied - In former case there is no burden of proof upon a woman who alleges that she was ignorant of character and contents of documents for reason of illiteracy or she being a pardanashin woman - It has to be presumed in such a case that she could have transferred her rights to other only for reason of fraud or undue influence - In latter case burden shall be upon person alleging undue influence and fraud - Onus will shift only when there is a clear pleading in this behalf with necessary particulars and initial onus is discharged - Of an illiterate woman moving Court alleging that she acted only on basis of representations of defendants when she put her thumb impression on document impugned settlement deed in presence of Sub Registrar - It is a case of an illiterate woman seeking protection of law as she executed document without knowing its true character and contents - Learned single judge has fallen in error in seeking any further pleadings and/or proof of undue influence and fraud from her - Burden in this behalf is upon defendants - Impugned judgment for said reason has to be set aside - Ordered Accordingly
JUDGMENT :
T. RAVINDRAN, J.
Prayer: Second Appeal has been filed under Section 100 of CPC against the Judgment and Decree dated 25.11.2014 passed in A.S. No. 27 of 2014 and 44 of 2014 respectively on the file of the III Additional City Civil Court, Chennai, reversing the Judgment and Decree dated 30.08.2013 passed in O.S. No. 4165 of 2007 and 1818 of 2008 respectively on the file of the III Assistant City Civil Court, Chennai.
1. The appellant, in both the appeals, is the plaintiff in O.S. No. 4165 of 2007 and the defendant in O.S. No. 1818 of 2018 on the file of the XII Assistant Judge, City Civil Court, Chennai respectively.
2. O.S. No. 4165 of 2007 had been laid by the appellant against the respondents herein for the relief of declaration that the deed of cancellation dated 17.04.2007, executed by the respondents, registered as document No. 1482/2007 - SRO, Periamet is illegal, unlawful, null and void and for directing the respondents to deliver the vacant possession of the suit property to him and for consequential permanent injunction restraining the respondents and their men, agents, representatives or anybody on their behalf from anyway dealing with the suit property either by way of sale, mortgage or in any other manner.
3. O.S. No. 1818 of 2008 had been laid by the respondents against the appellant for the relief of declaration to declare that the alleged sale-deed said to have been executed by the respondents in favour of the appellant in respect of the suit property dated 27.01.2006, registered as document No. 212/2006 on the file of SRO Periamet, as void ab-initio, invalid, null and void and non-est in the eyes of law and for the relief of permanent injunction restraining the defendant or his men, servants, agents or anybody claiming through him, from and in any way interfering with the respondents' peaceful possession and enjoyment of the suit property.
4. Inasmuch as common issues were involved in both the suits, it is seen that both the suits were jointly tried by the trial Court and accordingly, evidence has come to be recorded in O.S. No. 4165 of 2007 laid by the appellant herein and in support of the appellant's case, PW-1 was examined and Exs.A1 to 13 were marked and on the side of the respondents, DW-1 was examined and Exs.B1 to B9 were marked.
5. On consideration of the oral and documentary evidence adduced by the respective parties and the submissions made, the trial Court was pleased to dismiss the suit laid by the respondents in O.S. No. 1818 of 2008 and decreed the suit in favour of the appellant granting the reliefs of declaration and permanent injunction as well as the delivery of vacant possession and on the facts and circumstances of the case, directed the appellant to pay the balance sale consideration of Rs. 3,00,000/- to the respondents within two months from the date of decree or to deposit the same into Court and the respondents, on receipt of the amount, had been directed to handover the vacant possession to the appellant within a month, thereafter, failing which, the appellant would be entitled to proceed against the respondents for recovery of possession by executing the decree. Impugning the judgment and decree of the trial Court, it is found that the respondents herein had preferred the first appeals and the first appellate Court, on a consideration of the materials placed on record and the submissions made, setting aside the Judgment and Decree of the Trial Court, decreed the suit laid by the respondents in O.S. No. 1818 of 2008 as prayed for and dismissed the suit laid by the appellant in O.S. No. 4165 of 2007. Aggrieved over the same, the present second appeals have been laid.
6. At the time of admission of the second appeals, the following substantial questions of law were formulated for consideration in the second appeals:
“(a) Whether the learned Appellate Judge was right in reversing the well reasoned judgment of the trial Court without assigning any reason for setting aside the findings re
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