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TMI Blog2020 (9) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... per law. Once transaction is entered between the parties, heavy burden lies on the party to show that the transaction is sham and nominal. Apex Court in the judgment in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo [2009 (3) TMI 997 - SUPREME COURT] has held that the registered sale deed carries presumption that the transaction was a genuine one and if the execution of sale deed is proved, onus lies on the party to prove that the sale deed was not executed and it was a sham and nominal. Except contending that before the sale by the first defendant in favour of the second and third defendants, the plaintiff perfected title by adverse possession in Paragraph No. 8(A) of the plaint, there is no pleading as to when possession has become hostile, what was the nature of possession, whether possession was hostile to the first defendant and continuous adverse to the knowledge of the first defendant. In the absence of any pleadings and evidence, the finding of the Courts below that the plaintiff perfected title by adverse possession also cannot be countenanced, when the possession itself has not been properly established. Whereas, the Courts below wrongly shifted the bur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the dictates and directions of her husband without any reservation. 3.2. In the year 1972, during the month of September, at the instructions of her husband, she has executed a nominal sale deed dated 19.09.1972 in favour of the first defendant. The plaintiff's husband wanted the plaintiff to create a sale deed, as he was threatened by the tax authorities. The husband of the plaintiff also told the plaintiff that the document was not intended to be given effect to. It is being done to safeguard the interest of the plaintiff against any possible claim by the third parties. It is her contention that the said sale deed was not acted upon and it is only sham and nominal. The plaintiff had no necessity to sell the suit property to the first defendant. There was no cash consideration paid or agreed to be paid between the parties. The sale deed has been only an empty paper exercise and the title of the plaintiff was never disputed by the first defendant nor passed on to him. The plaintiff was also not divested of her right, title and interest in the property. Though the recitals indicate ₹ 19,000/- as a sale consideration, the said amount has not been paid by the first defe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted upon. The first defendant himself sold an extent of 8000 square feet of the suit property for a consideration of ₹ 16,000/- in favour of the second defendant under a duly registered sale deed dated 20.08.1985. The remaining extent of 1600 square feet with superstructure was sold by the first defendant to the third defendant by his guardian and mother D. Kamalambal, for a consideration of ₹ 28,200/- under a registered sale deed dated 20.08.1985. After the purchase, the second and third defendants have been in-exclusive possession and enjoyment of the suit property. In fact, their tenants are in occupation of some portions of the suit property under tenancy agreements. The second defendant let out two thatched sheds in a total extent of 280 square feet to one D. Krishnaswamy and entered into a lease agreement on 06.03.1991. On the same day, the third defendant and Krishnaswamy also entered into another written lease agreement in respect of a portion of the suit property owned by the third defendant. Another person, by name Rajanandam has also executed a lease agreement on 27.04.1991 in favour of the third defendant in respect of another portion of the suit property. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel appearing for the appellants/defendants submitted that both the Courts below have not even considered the well settled principle of law in deciding the suit. The plaint proceeded as if the second and third defendants are the third parties. Whereas, the second and third defendants are the sons born, through the second wife of the plaintiffs husband, which has been clearly established on record. He further contended that the case of the plaintiff that the sale deed in Ex. A.1 in favour of the first defendant is sham and nominal cannot be countenanced, for the simple reason that the plaintiff herself has not appeared before the Court to withstand the cross-examination. Her contention is that ever since the date of settlement in the year 1959, she is in possession of the suit property. Absolutely, there is no document filed to prove the said fact. Further, even after the sale in favour of the first defendant in the year 1972, the property has been mutated in the name of the first defendant and there is no evidence to show that she was all along in possession of the suit property. All the documents relied upon by the plaintiff to show the alleged possession, came after the suit. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the plaintiff. The Trial Court and the first Appellate Court have factually found that the plaintiff is in possession of the suit property and the first defendant has also admitted that neither he paid consideration nor took possession of the property. When the plaintiff was all along with the possession of the property even from the year 1972 till 1985, she perfected her title by adverse possession. Therefore, any sale in favour of the second and third defendants by the first defendant did not convey any title. 11. The learned Senior Counsel further contended that to prove the consideration, on the side of the defendants, there is no evidence. Admittedly, the second defendant was at the age of 19 years and the third defendant was at the age of 16 years at that point of time. The evidence of D.W. 1 clearly indicated that he and the third defendant have no source of income at the relevant point of time. Therefore, the same clearly probabilised the fact that the sale is not supported by consideration. Therefore, such sale deed is sham and nominal and the plaintiff is all along in possession of the suit property, which has been clearly found by the Trial Court. Hence, it is cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any suit. The plea of the first defendant cannot be given much importance. But, his pleadings itself indicate as if he had executed sale deeds, after the death of the plaintiffs husband, in favour of the second and third defendants, at the request of the third defendant. It is to be noted that when he was examined before the Court as P.W. 2, he has taken a contrary stand than his pleadings. Whereas, in his evidence, he has stated as if at the request of Durairaj, the husband of the plaintiff, he has executed sale deeds in favour of the second and third defendants. Contrary stand taken in the chief-examination than his pleadings clearly indicates that the first defendant's evidence is totally unbelievable and he has totally colluded with the plaintiff to defeat the rights of the second and third defendants. Though the plaint proceeded as if the defendants are just making an attempt, nowhere, it is stated that the second and third defendants are the sons born to Durairaj. Exs. B.1 and B.2 sale deeds executed by the first defendant in favour of the second defendant and Kamalambal as guardian of the third defendant, itself clearly indicate that the father of the second and third d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milarly, extract of the plan of the so called building was also obtained only, on 31.07.1996 and the Chitta pertaining to Pudupattinam Village issued by the Village Administrative Officer was filed as Ex. A.14. The same cannot be looked into for any other purpose, unless the author of the certificate has been examined. The Courts below have given undue importance to the after suit documents, to show that the plaintiff is in possession of the suit property. 18. It is further to be noted that all other documents relate to only electricity receipts for connection No. 7479. Except this, no other documents whatsoever filed to show the actual control over the suit property. It is the contention of P.W. 1 in his evidence that only the plaintiff has constructed a building. But, there is no evidence whatsoever available on record. It is also to be noted that P.W. 1 himself admitted that there is a tenant named Krishnaswamy in the suit property. Whereas, it is the specific case of the second defendant in his evidence that Krishnaswamy is the tenant under him and the third defendant. They have also filed tenancy agreements executed by Krishnaswamy in the year 1991. As stated by P.W. 1, if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his contention in the written statement that Exs. B.1 and B.2 were executed at the request of the third defendant after the death of Durairaj. Whereas, the own plaint pleadings indicate that Durairaj died in the year 1989. Therefore, the very defence pleaded in the first defendant's written statement that the sale deeds were executed only after the death of Zamindar is highly unbelievable, because of the fact that the sale deeds were executed in the year 1985 during the life time of the father of the second and third respondents. This fact clearly probabilised the defendants' case that the sale consideration set out in Exs. B.1 and B.2 were paid by Durairaj, the father of the second and third defendants. 20. The suit has been filed in the year 1992. As already discussed, the plaintiff having sold the property in the year 1972, seeking to avoid the documents after 20 years, she has not sought any declaration to cancel the document. If any document sought to be cancelled or avoided, the limitation for filing suit is three years as per Article 59 of the Limitation Act, 1963. Whereas, the suit has been filed after 20 years of the sale under Ex. A.1. 21. It is also to be n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court has held that where the party claiming transaction to be a benami one has not chosen to examine herself as a witness, an adverse inference should be drawn against her. Similarly, in the same judgment, the Apex Court has held that the transaction claiming to be a benami transaction, the entire onus lay on the party. The plaintiff herself has not come before the Court and, therefore, necessarily, this Court has to draw an adverse inference against her. 24. Ex. A.1, when carefully seen, clearly indicates that prior to the sale, there was an agreement of sale between the plaintiff and the first defendant. When the recitals clearly show that there was an agreement between the parties with regard to the sale of property, the parties cannot go beyond the terms of the contract, which was reduced and registered as per law. Once transaction is entered between the parties, heavy burden lies on the party to show that the transaction is sham and nominal. 25. The Apex Court in the judgment reported in MANU/SC/0441/2009 : 2009 (5) SCC 713 [Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo], has held that the registered sale deed carries presumption that the transaction was a genui ..... X X X X Extracts X X X X X X X X Extracts X X X X
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