Dismissed

Sivabagiyam v. Anbanandan

Madras HC6 Apr 2011REV.APPL/91/2009

Case brief

AI extract

What is this about?

The High Court dismissed two review applications challenging a Second Appeals judgment that reversed a benami suit. The Court held there was no error apparent on the face of the record as the predecessor adequately considered the motive and surrounding circumstances, distinguishing review from appellate power.

What did the court decide?

Review applications Rev.Appln.Nos.91 and 92 of 2009 dismissed; no costs; connected miscellaneous petition closed.

Sivabagiyam Vs Anbanandan — Property and Title | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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Dated : 06.04.2011

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Coram:-

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The Hon'ble Mr. Justice G.RAJASURIA

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Rev.Appln.Nos.91 and 92 of 2009 & M.P.No.1 of 2009 & M.P.Nos.1 & 1 of 2011in S.A.Nos.1258 and 1259 of 2009

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Sivabagiyam

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Minor Kavitha rep. By her mother and next friend guardian Sivabagiyam .. Applicants in Rev.Appln.No.91/09

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Sivabagiyam .. Applicant in Rev.Appln.No.92/09 vs

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Anbanandan

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Kousalyadevi

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Jaya

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Samundeeswari

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Mohanan ... Respondents in Rev.Appln.No.91/09

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Murugesan @ Anbanandan ... Respondent in Rev.Appln.No.92/09

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Review Applications filed under Order XLVII Rule 1 and 2 read with Section 114 CPC as against the common judgment passed on 28.01.2009 in S.A.Nos.1258 and 1259 of 2006

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For applicants : Mr.R.Yashod Vardhan,Sr.Counsel for Mr.C.Anandha Ramani

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For respondents : Mrs.Hema Sampath, Sr.Counsel for Mr.K.Kalyana Sundaram

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C O M M O N O R D E R

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These review applications are focussed as against the common judgment dated 28.01.2009 passed in S.A.Nos.1258 and 1259 of 2006 on the file of this Court.

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A recapitulation and 'resume' of facts absolutely necessary and germane for the disposal of these review applications would run thus:

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Two Second Appeals were filed as against the common judgment and decrees dated 22.11.2005 passed by the learned First Additional District Judge, Coimbatore in A.S.Nos.74 of 2004 and 59 of 2002, confirming the common judgment and decrees passed by the Third Additional District Munsif, Coimbatore on 06.12.2001 in O.S.Nos.1240 of 1986 and 1316 of 1995.

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3.The admitted facts or atleast the undeniable facts, would run thus:

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(a) One Vaiyapuri gave birth to his son Anbanandan, through his deceased first wife. Even while Anbanandan was about three months old, he got married Sivabagiyam for the second time. Thereafter, he purchased the suit property on 14.06.1973 measuring an extent of two acres in the name of his minor son Anbanandan who was three years old. Ever since Anbanandan was six years old, he was brought up by his grand father, so to say, Palaniappa Mudaliar. It so happened that the said Vaiyapuri filed the suit O.S.No.1240 of 1986 seeking the following reliefs as against his minor son Anbanandan, represented by Palaniappa Mudaliar:

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"(a) To declare the title and right of the 2nd plaintiff to the suit property holding that the 2nd plaintiff is the absolute owner of the suit property on the foot of the will dated 27.08.1994;

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(b) To restrain the defendant from alienating the suit property in favour of the third person by means of permanent injunction; and

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(b) Subsequently, so to say even during the pendency of the aforesaid suit, the said Anbanandan, after attaining majority filed the suit O.S.No.1316 of 1995 as against his step mother Sivabagiyam, seeking injunction not to interfere with his peaceful possession and enjoyment of the same suit property.

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(c) The trial Court decreed the suit filed by Vaiyapuri and dismissed the suit filed by Anbanandan, as against which two appeals were filed by the aggrieved party for nothing but to be dismissed confirming the common judgment and decree of the trial Court.

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Challenging and impugning the said common judment and decrees of the appellate Court, the aforesaid two Second Appeals were filed on various grounds.

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After hearing both sides, the two Second Appeals were allowed by my learned Predecessor, vide common judgment dated 28.01.2009, reversing the common judgment and decree of both the Courts below and decreeing the suit of Anbanandan and dismissing the suit of Vaiyapuri. Subsequently, these two Review Applications have come to be filed on various grounds.

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Placing reliance on those grounds, the learned Senior Counsel Mr.Yashod Vardhan for the Review Applicants, would put forth and set forth his arguments, which could tersely and briefly be set out thus:

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(a) There is error apparent in the common judgment dated 28.01.2009, as this Court held as though both the Courts below failed to take into account the motive for purchasing the suit property in the name of his minor son by the father. When in fact both the Courts below elaborately dealt with that point, this Court without referring to the findings of the Courts below held otherwise, which is not in concinnity and in consonance with the mandate as contained in Section 100 of CPC and also the principles emerged thereunder and laid down by the Hon'ble Apex Court in various precedents.

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(b) This is a case where the suit property was purchased by Vaiyapuri in the name of his minor son aged three years, from out of Vaiyapuri's own income and that was done purely for the purpose of keeping the property out of the reach of his brothers and also his father.

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(c) Both the Courts below took into account the motive part of the transaction as contained in the sale deed dated 14.06.1973, whereas this Court assuming erroneously as though both the Courts below failed to take into account the salient features, so to say the motive part of the transaction, applied for the first time its own ratiocination and reversed the reasoned common judgment and decrees of both the Courts and this is a clear case of error apparent within the meaning of Section 114 and Order 47 Rule 1 of CPC.

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The learned Senior Counsel for the Review Applicants, would cite the decision of the Hon'ble Apex Court reported in (2005) 6 SCC 441 [G.Mahalingappa v. G.M.Savitha]; an excerpt from it would run thus:

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"25. Let us now consider whether the concurrent findings of fact could be set aside by the High Court in the second appeal. It is well settled by diverse decisions of this Court that the High Court in the second appeal is entitled to interfere with the concurrent findings of fact if the said concurrent findings of fact are based on non-consideration of an important piece of evidence in the nature of admission of one of the party to the suit, which is overlooked by the two courts below. (See Deva v. Sajjan Kumar5.) It is equally well settled that under Section 100 of the Code of Civil Procedure, the High Court cannot interfere with the concurrent findings of facts of the courts below without insufficient and just reasons. (See Sayeda Akhtar v. Abdul Ahad6.) In the second appeal, the High Court is also not entitled to set aside the concurrent findings of fact by giving its own findings contrary to the evidence on record. (See Saraswathi v. S. Ganapathy7.)

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As held herein earlier the High Court had set aside the concurrent findings of fact not on consideration of the evidence adduced by the parties but set aside the concurrent findings of fact on the basis of findings contrary to the evidence on record and without considering the findings of fact arrived at by the appellate court and the trial court. From the judgment of the High Court we further find that the concurrent findings of fact were set aside not on consideration of the findings of fact arrived at by the courts below but only on the basis of the arguments of the learned advocate of the respondent. This was also not permissible to the High Court in the second appeal to come to contrary findings of its own only on the basis of the arguments of the learned counsel for the respondent without considering the findings of the trial court as well as the appellate court. (See Gangajal Kunwar v. Sarju Pandey8.) It is equally settled that the High Court in the second appeal is not entitled to interfere with the concurrent findings of fact arrived at by the courts below until and unless it is found that the concurrent findings of fact were perverse and not based on sound reasoning. We ourselves considered the evidence on record as well as the findings of fact arrived at by the two courts below. From such consideration we do not find that the concurrent findings of fact arrived at by the appellate court as well as the trial court were either perverse or without any reason or based on non-consideration of important piece of evidence or admission of some of the parties. We are therefore of the view that the High Court was not justified in interfering with the concurrent findings of fact arrived at by the appellate court as well as the trial court which findings were rendered on consideration of the pleadings as well as the material (oral and documentary) evidence on record."

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8 Per contra, in a bid to torpedo and pulverise the arguments as put forth and set forth on the side of the review applicants, the learned Senior Counsel Mrs.Hema Sampath for the respondents, would detail and delineate her arguments, the warp and woof of them would run thus:

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(a) In the common judgment dated 28.01.2009 passed by this Court there is no error at all much less error apparent.

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(b) From paragraph No.30 onwards this Court in the common judgment dated 28.01.2009 detailed and delineated the arguments of the learned Senior Counsel for the appellants concerned and correctly decided the lis.

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(c) Simply because in paragraph No.37 it is found stated as though the Courts below did not consider the motive and intention behind the sale, that it does not mean that the learned Judge simply held as though both the Courts below had not considered the motive and intention at all, but the purport of the sentences used by the learned Judge were to the effect that both the Courts below had not properly considered the motive and intention behind the said sale deed dated 14.06.1973. As such, absolutely no interference in the judgment dated 28.01.2009 is warranted.

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The learned Senior Counsel for the respondents, would cite the decision of the Division Bench of this Court reported in 2007(4) LW 180 [K.Kannappan v. C.S.Selvaraj (deceased) and 11 others]; an excerpt from it would run thus:

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"14. Even though the observations made in AIR 1979 SC 1047 (Arinbam Tuleshwar Sharma v. Aribam Pishak Sharma) was in the context of review of decision of the High Court rendered under Article 226 of the Constitution, ratio of the decision can be made applicable to review of any decision. The following observations are worth quoting:

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"3. .....But, there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits. That would be the province of a Court of appeal. A power of review is not to be confused with appellate power which may enable an Appellate Court to correct all manner of errors committed by the Subordinate Court."

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The point for consideration is as to whether there is any error apparent in view of the alleged main ground that my learned Predecessor failed to go through the common judgment of the both the Courts below and inferred suo motu the motive and intention behind the sale deed dated 14.06.1973.

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A plain reading of the entire common judgment of my learned Predecessor dated 28.01.2009 in Second Appeals would exemplify and demonstrate, display and expatiate that His Lordship upheld the arguments of the learned Senior Counsel for the appellants as found detailed by him in Paragraph Nos.30 to 33, which are thus:

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"30. According to the learned senior counsel, as per the sale deed the transferee minor son was put in possession. The 6 year old boy went to grand father�s house with property. So that he can maintain himself from the income therefrom. Therefore, the father was silent from the year 1973 to 1986, ie. Date of filing the suit. He did not pay any money towards his maintenance since the property was with his minor son. He did not have mutation much less paid kist right from the beginning except after filing the suit. Father did not exercise any act of absolute ownership like lease, mortgage etc. He did not choose to recover boy�s custody and possession of land. Therefore, it can be reliably presumed that the property was purchased for the welfare and benefit of the boy only.

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The learned counsel for appellant further contended that the father has admitted that he had love and affection towards his only son. The date of purchase was in the year 1973 during which year, young son, daughter and second wife were living together. They could not pull on well

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together, therefore there was a separation. Accordingly the boy along with his property was placed with his grand father namely father�s father. Subsequently the relationship between Vaiyapuri and his father got strained due to filing of a suit by Vaiyapuri against his father and brother claiming his share from ancestral property. Thus the relationship was strained, under those circumstances he did not like his father and others to enjoy the property purchased in the name of his son. Therefore, it is pointed out that in the year 1986, he changed his mind on that account with the added pressure from the 2nd wife and filed a suit in O.S.No. 1240 of 1986 claiming the suit property as a benami. He did not prosecute the suit and allowed the suit to be dismissed for default on 21.12.1992 (Ex.A-12).

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Anbananthan @ Murugesan filed the suit in O.S.No. 1316 of 1995 against Sivabagyam for permanent injunction, after the death of his father on 27.01.1995. She was contesting the suit and she took steps to restore the suit in O.S.No. 1240 of 1986 filed by her deceased husband.

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The learned senior counsel further contend that the motive alleged by the plaintiff for purchasing the property in the name of his son is false and cannot be accepted. The 1st Plaintiff has stated that he had to purchase the suit properties in the name of his minor son as benami, since he had a genuine fear that his father and brother would lay claim upon the properties and would create dispute and would also take legal action in respect of the suit properties. PW-4 had deposed categorically that Vaiyapuri had purchased properties in the name of his wife Sivabagiyam also. After marrying the 1st respondent Sivabagiyam, if any property purchased in her name would be the only easy way to escape from litigation from the family members of Vaiyapuri."

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In fact, in Paragraph No.34, my learned Predecessor instead of repeating the contentions of the appellants once again in different words, would state thus:

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"34. In view of above discussion and on consideration of the evidence and the prevailing circumstances as on date of purchase of the suit property, I find considerable force in the argument of the learned Senior Counsel. Therefore, it can be held that the property was purchased only for the benefit of the appellant." (emphasis supplied)

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In my considered opinion, the said recording by my learned Predecessor would tantamount to upholding and countenancing the argument as found detailed in the above paragraph, so to say from paragraph Nos.30 to 33. No doubt in paragraph No.37 my learned Predecessor stated thus:

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"37. The Plaintiff examined as DW-4 and established that father Vaiyapuri paid the consideration of the sale deed Ex.A-2. But that alone is not a determinative of benami transaction. As already discussed above, the trial Court as well as the first appellate Court did not consider the motive and intention behind the sale, surrounding circumstance at the time of the sale, as well as relationship of parties at the time of sale and there after, and also the previous and subsequently conduct of the parties. I am of the view that the plaintiffs did not prove their possession and enjoyment over the suit property. The motive and intention pleaded by the Plaintiffs is found against them. The Plaintiffs have not discharged their onus by legal testimony. Thus on an appreciation of the entire evidence adduced by both the parties and in

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the light of all relevant and surrounding circumstances, it can be held that the sale deed Ex.A-3 is not a benami transaction."

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The warp and woof, the gist and kernel of that paragraph should be understood appositely. My learned Predecessor did not intend to say that both the Courts had not adverted to the motive or intention behind the sale deed dated 14.06.1973, but he meant by his narration that they failed to properly understand the motive and intention behind the sale deed. According to the review applicants, the sale emerged in the name of the minor at the instance of the minor's father Vaiyapuri, because the latter wanted to keep the property away from the reach and clutches of his

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brothers. My learned Predecessor after considering the pros and cons of the matter felt that the motive and intention behind such sale transaction having emerged in favour of the minor at the instance of Vaiyapuri was to the benefit the minor, because Vaiyapuri got married for the second time and he intended that his minor son should not suffer from the step motherly treatment of his second wife and he wanted Anbanandan to be brought up by Vaiyapuri's father with the help of the income derived from the suit property. This is the warp and woof of the finding given by learned Predecessor accepting the argument of the learned Senior Counsel for the appellants.

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The High Court is having the power to disagree with the finding of facts of the lower Court from the available evidence when there is any perversity or illegality in such findings. Obviously and axiomatically, my learned Predecessor felt that both the Courts below misdirected themselves in accepting the motive behind the sale as suggested by Vaiyapuri. Whereupon my learned Predecessor for reasons to be recorded on his part held otherwise, warranting no interference in review. In my considered opinion, the decision rendered by my learned Predecessor was not actuated or accentuated, galvanised or propelled by any misconception or misreading or misunderstanding of any of the portions of the common judgments of both the Courts below. Perhaps, what I could understand is that my learned Predecessor accepted as sound the argument of the learned Senior Counsel for the appellants and instead of further elaborating on that in his own way accepted the same and that cannot be labelled or dubbed as though it is an error apparent. As correctly pointed out by the learned Senior Counsel for the respondents/appellants unless there is any error apparent, this Court cannot review the earlier findings. I would also fumigate my mind with the settled proposition that even in a case where there might be wrong decision by the Court, that would not be a ground for reviewing the earlier decision, unless that wrong decision resulted because of any error apparent in understanding the evidence or applying law. In my considered opinion absolutely there is no such circumstances found spelt out here. It appears from the judgment of my learned Predecessor that he did not render the judgment based on the prohibition as contained in the Benami Transactions (Prohibition) Act, 1988.

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To the risk of repetition and pleonasm, but without being tautologous, what I would like to point out is that simply because both the Courts believed the motive behind the sale deed as suggested by Vaiyapuri was correct, that it does not mean that the High Court was having no power to reverse that order and that too on sound reasons suggested by the learned Senior Counsel for the appellants. Hence, I could see no perversity or illegality in the common judgment dated 28.01.2009. In the result, both the review applications are dismissed. No costs. Consequently connected miscellaneous petition is closed.

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G.RAJASURIA,J.,

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gms

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In view of the aforesaid order, the impleading petitions stand dismissed.

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06.04.2011

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gms

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Index : Yes/No Internet : Yes/No

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Rev.Appln.Nos.91 and 92 of 2009

Sivabagiyam v. Anbanandan

Case brief

What is this about?

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Sivabagiyam v. Anbanandan

Case brief

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