S.A.No.1206 of 2014

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

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S.A.No.1206 of 2014

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

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S.A.No.1206 of 2014

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

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S.A.No.1206 of 2014

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 Cou