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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G.K. ILANTHIRAIYAN, J.
Lakshmi Ammal(died) & Another - Appellant
Versus
Mari Ammal & Another - Respondent
S.A. No. 470 of 2005 & CMP. No. 7519 of 2005
Decided On : 05-03-2020
Constitution Of India,1950 - Article 59 - Civil Procedure Code ,1908 - Section 100 - Transfer of Property Act - Sections 122 & 123 - Claim same as void documents - Investigation - Suit is filed for declaration and permanent injunction with alternative prayer for recovery of possession - Suit property was originally purchased by plaintiff’s husband first defendant herein from one Thiyagarajan by registered sale deed - Thereafter he settled suit property in favor of plaintiff by registered settlement deed - Plaintiff took possession and was enjoying suit property as absolute owner - While being so there was misunderstanding between plaintiff and first defendant and as such she was driven out from suit property – Held, Though both courts below concurrently against second defendant there are exceptions to interfere with concurrent findings - In this regard it is relevant to rely upon judgment in case Grounder Pavayammal and others reported in wherein it is held as follows general rule is that High Court will not interfere with concurrent findings of Courts below - Some of well recognized exceptions are where Courts below have ignored material evidence or acted on to evidence -Courts have drawn wrong inferences from proved facts by applying law erroneously Courts have wrongly cast burden of proof In view of above discussion it is found that both courts below did not apply law on settled principles related thereto and also ignored material evidences and testimonies adduced by second defendant - Therefore this court constrains to interfere with findings of courts bellows since findings of courts below are perverse and against evidence on record – Accordingly substantial questions of law and additional substantial questions of law formulated by this Court are answered against plaintiff and in favor of second defendant – Appeal allowed
JUDGMENT
(Prayer: This Second Appeal is filed under Section 100 of Civil Procedure Code against the judgment and decree dated 11.12.2003, in A.S.No.18 of 2000 on the file of I Additional Judge, City Civil Court, Chennai confirming the decree and judgment dated 27.10.1998 in O.S.No.4992 of 1993 on the file of III Assistant Judge, City Civil Court, Chennai.)
1. This second appeal is directed as against the judgment and decree dated 11.12.2003, in A.S.No.18 of 2000 on the file of I Additional Judge, City Civil Court, Chennai confirming the decree and judgment dated 27.10.1998 in O.S.No.4992 of 1993 on the file of III Assistant Judge, City Civil Court, Chennai.
2. For the sake of convenience, the parties are referred to as per their rankings in the trial Court.
3. The case of the plaintiff in brief is as follows:-
3.1. The suit is filed for declaration and permanent injunction with the alternative prayer for recovery of possession. The suit property was originally purchased by the plaintiff's husband, the first defendant herein from one, Thiyagarajan by registered sale deed dated 27.08.1980. Thereafter he settled the suit property in favour of the plaintiff by the registered settlement deed dated 17.10.1984. The plaintiff took possession and was enjoying the suit property as absolute owner. While being so, there was misunderstanding between the plaintiff and the first defendant and as such she was driven out from the suit property. The first defendant filed petition for divorce in MOP.No.331 of 1987 on the file of the VII Assistant Civil Civil Judge, Chennai and the same was dismissed. The first defendant without knowledge of the plaintiff created fraudulent cancellation deed dated 28.09.1987, thereby cancelled the settlement deed executed in favour of the plaintiff. The plaintiff after came to knowledge about the same, caused public notice in tamil dailies on 10.11.1987, thereby put on notice to prospective purchaser and to general public at large to ascertain her title over the suit property. Therefore, the first defendant did not retain any right over the suit property after the settlement deed dated 17.10.1984 to alienate the same. Thereafter, the first defendant did not care to pay any maintenance as ordered by the City Civil Court in IA.No.22350 of 1987 in MOP.No.331 of 1987, the plaintiff filed execution petition in EP.No.1878 of 1988 and she was able to realise a sum of Rs.1000/- alone. As such again the plaintiff filed suit for recovery of arrears of maintenance in O.S.No.19 of 1990 on the file of the Family Court, Chennai and the same was also decreed in her favour.
3.2 Further she stated that while being so, the plaintiff came to understand that the first defendant executed sale deed in favour of the second defendant in respect of the suit property by the registered sale deed dated 01.11.1989. In fact, the said sale deed was executed by the first defendant as though the plaintiff has also joined with him in the said conveyance. The plaintiff was impersonated in the said transaction and the first defendant committed very serious offence of forgery and impersonation. In fact, the first defendant categorically stated in the divorce petition that the plaintiff deserted the first defendant on 31.10.1985 itself and as such there is absolutely no possibility for the plaintiff to join with the first defendant in conveying the suit property in favour of the second defendant. The plaintiff was impersonated and her signature was forged by the first defendant and executed sale deed in favour of the second defendant and as such the sale deed itself is void ab initio and it is not binding on the plaintiff. Hence, the suit for declaration declaring that the plaintiff is having absolute right, title, interest over the suit property and also prayed for permanent injunction with alternative prayer of recovery of possession.
4. Resisting the plaintiff's case, the second defendant alone filed written statement stating that the suit itself is not
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