IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on:15.09.2023 Delivered on: 24.11.2023 CORAM:

THE HONOURABLE MR.JUSTICE P.B.BALAJI S.A.No.1206 of 2014

1.N.Sivakumar

2.P.Natrajan ... Appellants Vs.

R.Peter Pereira ... Respondent PRAYER: Second Appeal filed under Section 100 of C.P.C against the judgment and decree dated 20.12.2012 made in A.S.No.29 of 2010 on the file of III Additional Sub-Court, Coimbatore in reversing the judgment and decree dated 29.04.2010 made in O.S.No.2612 of 2007 on the file of I Additional District Munsif, Coimbatore.

For Appellants : Mr.T.M.Naveen for Mr.T.P.Manoharan For Respondents : Mr.K.J.Parthasarathy

JUDGMENT

The unsuccessful defendants before the First Appellate Court are the appellants herein. The respondent, as plaintiff filed O.S.No.2612 of 2007 seeking declaration of the sale deed dated 14.05.2007 as one being illegal, null and void unenforceable and non-est in law and for consequential reliefs of permanent injunction to restrain the appellants herein from interfering with the plaintiffs peaceful possession and enjoyment and also from alienating or encumbering the Suit property based on the sale deed dated 14.05.2007.

2. The case of the plaintiff before the Trial Court was that originally the property belonged to Ms.Thelma Cecilia Pereira, the sister of one Raymond Pereira the father of the plaintiff. The plaintiff's grand mother, A.M.Pereira had executed a registered Will dated 10.01.1985 bequeathing the suit property to Thelma Cecelia Pereira. The Will was probated before the Sub Court, Coimbatore in O.P.No.49 of 2002. After the demise of the testatrix, A.M.Pereira on 26.11.1990, Thelma Cecelia Pereira became entitled to the suit property and she was in possession and enjoyment of the same. The said Thelma Cecelia Pereira, out of love and affection, executed a registered settlement deed in favour of the plaintiff's father, Raymond Pereira, who in turn, executed another settlement deed on 24.04.2007, in favour of the plaintiff in registered Document No.2331 of 2007. According to the plaintiff, pursuant to the said settlement deed, he has been in physical possession of the suit property, together with all original documents. The plaintiff came to know that in August 2007, the 1^st defendant who is an errand of Thelma Cecelia Pereira fabricated documents and the plaintiff came to know that a sham and nominal and void document in the nature of sale deed had been executed in favour of the 2^nd defendant, by the 1^st defendant, claiming to be the power of attorney of Thelma Cecelia Pereira, which power of attorney was dated 29.03.2002. According to the plaintiff, the said power of attorney was obtained by fraud and the defendants had colluded amongst themselves to bring about the sale deed which is challenged in the suit. According to the plaintiff, the market value of the property was Rs.75,00,000/- in April 2007, but the consideration reflected in the sale deed in favour of the 2^nd defendant was only Rs.20,00,000/- which again establishes the collusive nature of the transaction. The plaintiff therefore laid the Suit for the reliefs set out herein above:

(i) The said suit was contested by the defendants alleging that the plaintiff was not in possession and enjoyment as claimed and the property was occupied mostly by tenants; the plaintiff never took care of Thelma Cecelia Pereira and it was only the 1^st defendant who was taking care of her, till her death; Thelma Cecelia Pereira never executed a settlement deed out of love and affection, for the plaintiff's father; the power of attorney was a true and genuine document and the allegations of collusion was stoutly denied.

3. Before the Trial Court, the plaintiff examined himself as P.W.1 and one Mr.A.Paulraj as P.W.2. On the side of the defendants, the 1^st defendant examined himself as D.W.1 and three other witnesses were examined on the side of the defendants. Exs.A1 to 22 were marked on the side of the plaintiff and Exs.B1 to B9 were marked on the side