Palaniammal vs Kamalakannan

CIVIL APPEAL NO(s). 17355 OF 2017

PALANIAMMAL AND OTHERS ...APPELLANT(S)

VERSUS

KAMALAKANNAN AND OTHERS ...RESPONDENT(S)

JUDGMENT

NAVIN SINHA, J.

The plaintiffs are in appeal aggrieved by the judgment of

reversal by the High Court in a First Appeal preferred by the

defendants. The parties shall be referred to by their original suit

position for convenience.

2. The plaintiffs are the wife and legal heirs of one

Govindasamy who was the first cousin of Ramasamy Naicker. Signature Not Verified

The defendants are the legal heirs of Govindan who was the son­ Digitally signed by DEEPAK SINGH Date: 2020.03.17 12:44:47 IST Reason:

in­law of Ramasamy Naicker. O.S. No.10 of 1988 was preferred

1 by the plaintiffs to set aside the judgement and decree of auction

dated 26.09.1955 in favour of Govindan, seeking consequent

relief for possession of the suit property along with mesne profits

for the last three years. The suit was decreed on contest.

Though the auction sale was held as not liable to be set aside but

a declaration issued that the auction judgment dated 26.09.1955

made in favour of the defendants’ father was wholly by way of

trust for the beneficial ownership of Govindasamy. The

predecessor of the defendants, Govindan was held to be only an

ostensible owner of the suit property purchased in court auction

on behalf of Govindasamy entitling the plaintiffs to mesne profits

from the date of plaint till delivery of possession.

3. The High Court in a First Appeal preferred by the

defendants concluded there had been completely erroneous

appreciation of evidence by the trial court. Govindan was held to

be a real purchaser at the auction sale and lawful owner of the

property who had paid the necessary purchase price to the

mortgagee with stipulated interest leading to issuance of sale

certificate dated 21.07.1960 pursuant to the auction proceedings

2 dated 13.10.1955. The receipt dated 30.12.1961 and the

extracts from the register of encryption with translation dated

13.10.1955 made it apparent that Govindan was the lawful

owner of the property and that he did not purchase on behalf of

the appellants and neither was there any proof that Govindasamy

had in fact funded the auction sale through Govindan.

4. Shri V. Kanagarh, learned senior counsel appearing for the

appellants, argued that the High Court erred in not appreciating

that the auction sale was invalid and void as the defendant failed

to pay the auction price with 7% interest within six months and

in absence of which overbidding had necessarily to follow. The

auction was held on 26.09.1955. The deposit challan was dated

26.11.1962. It is apparent that the auction sale had become

invalid after six months and no title can pass to the defendants.

The court auction was knocked down in favour of one Joseph

Antoine. The conclusion that Govindan became the absolute

owner of the suit property consequent to the auction and

payment of purchase price is completely erroneous. The fiduciary

relationship between Govindasamy and Govindan pursuant to

3 which the latter had purchased the property of the former in an

auction sale to prevent accrual of third party rights was a

bonafide transaction funded by Govindasamy as Govindan had

no source of funds. In the suit filed by the cousin of Thangavelu

Gounder, the original owner of the property from whom

Govindasamy had purchased, it was Govindasamy alone who

contested the matter and Govindan was not even the party to the

suit. The defendants had failed to prove adverse possession as it

was neither hostile to the appellants nor uninterrupted in view of

the legal notice issued more than once to handover the property.

No regular patta was ever issued in the name of Govindan

pursuant to the auction sale. Govindan was only a name lender

in the entire transaction.

5. Shri R. Bala, learned senior counsel appearing for the

defendants, submitted that the suit was filed on 11.11.1987,

after a gap of more than 30 years from the date of the auction

sale. The suit property of Govindasamy was put to auction by

one Noel Fanovard as he had failed to repay the decree­holder.

Govindasamy being indebted to several persons, was financially

4 incapable of funding the auction purchase. The sale certificate

was issued in the name of Govindan and patta also issued in his

name along with encumbrance certificate, application for

electricity connection and electricity bill, all of which conclusively

prove that Govindan was the actual purchaser in the auction sale

and that Govindasamy had no concern with the same. It is not

without reason that after the auction sale dated 26.09.1955,

Govindasamy, in his life time till 15.02.1987, did not question

the same and it is only after his death that his wife and legal

heirs filed the suit in question. Had there been any infirmity in

the title of Govindan pursuant to the auction sale or had there

been any defect in the auction sale, Govindasamy as the original

owner of the suit property would have certainly raised the issue

in his life time. In view of the fact that both the Trial Court and

the First Appellate Court declined to interfere with the judgment

of auction holding it to be valid, this Court may not interfere with

the concurrent findings of facts.

6. We have considered the facts and circumstances of the case

as also the submissions on behalf of the parties. A brief

5 recapitulation of facts would be necessary for better appreciation

of the issues involved. The suit property originally belonged to

one Thangavelu Gounder. Govindasamy purchased the suit

property from him on 10.12.1936. The plaintiffs are the wife and

children of deceased Govindasamy. Defendants nos.1 and 2 are

the son and daughter of Late Govindan who was the son­in­law

of one Ramasamy Naicker. Govindasamy and Ramasamy Naicker

were first cousins. After the death of Ramasamy Naicker,

Govindasamy is stated to have become addicted to alcohol

leading to his wife requesting Govindan to manage the properties

of Govindasamy as well as Ramaswamy Naiker. Schedule ‘B’ of

the suit property was leased out to defendant no.3 during the life

time of Govindan who was authorised to collect the rent as the

parties were living together. Subsequently Govindasamy started

living with his family in the Schedule ‘A’ suit property, close to

Schedule ‘B’ property.

7. On 05.11.1977, Govindasamy issued notice to the

defendants not to collect rent from defendant no.3 and also not to

meddle in the suit property to which the defendants replied by

6 relying upon the court auction judgment dated 26.09.1955

contending that Govindan was the rightful owner of the suit

property. Govindasamy filed HRCOP no.31 of 1987 against

defendant no3. But when a counter claim was raised by the

defendants on basis of title acquired under court auction

judgment dated 26.09.1955, Govindasamy withdrew the eviction

suit. Govindasamy having died intestate on 15.02.1987, the suit

giving rise to the present appeal was instituted only thereafter by

his wife and legal heirs. There is no explanation coming forth

from the plaintiff why issues were not raised by Govindasamy

during his life time.

8. The suit property had been put on auction sale because of a

mortgage created by Govindasamy who was heavily indebted to

several persons apart from one Noel Fanovard. There was no

challenge to the court auction sale by Govindasamy in his life

time. The Trail Court has also held the auction sale to be valid.

The plaintiffs have not preferred any appeal against the same.

The instant suit by the legal heirs of Govindasamy was filed more

than 30 years later on 11.11.1987 after his death. The plaintiffs

7 failed to established or lead any evidence with regard to

availability of funds with Govindasamy so as to make an

endeavour to purchase his own property in the auction sale

through Govindan. If the plaintiffs contended that Govindan was

only a front for the auction purchase and the real owner was

Govindasamy who had funded the same, the onus lay on them

which they completely failed to discharge. On the contrary, the

First Appellate Court, after proper appreciation of evidence, has

opined that the Trial Court grossly erred in mis appreciating the

evidence which clearly demonstrated that it was Govindan who

had purchased the suit property on 13.10.1955 consequent to

which sale certificate had been issued in his favour on

21.07.1960. The triplicate copy of the challan demonstrated

deposit by Govindan of Rs.1526.67 on 26.11.1962 including

interest accrued thereon from the date of auction till the date of

payment. Joseph Antoine was the Advocate of Govindan who

had participated in the auction sale on his behalf. Apparently, a

false plea was sought to be raised by the plaintiff that the auction

purchase by Govindan was on behalf of Govindasamy, funded by

the latter. The High Court has further correctly held that the suit

8 itself was not maintainable under Section 66 (1) of the Code of

Civil Procedure, 1908 before its deletion on 19.05.1988.

9. There is no occasion for this court to reassess and

reappreciate the evidence as the First Appellate Court is the final

court on findings of facts. In view of the fact that the plaintiffs

had failed to prove their case completely, there is no occasion for

us to consider any other aspect of the matter and we find no

reason to interfere with the order of the First Appellate Court.

10. The appeal is dismissed.

…………...................J. [ASHOK BHUSHAN]

…………...................J. [NAVIN SINHA] NEW DELHI MARCH 17, 2020

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