John Selastiyen Charles vs Sahaya Ani Bala

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 25-09-2026
PRONOUNCED ON : 27.10.2026
CORAM
THE HONOURABLE MRS JUSTICE S.SRIMATHY
SA(MD) No. 764 of
2024
CNR:{HCMD011166662024}
and
CMP(MD)No.718 of 2025
John Selastiyen Charles
Appellant(s)
Vs
Sahaya Ani Bala
Respondent(s)
For Appellant(s): Mr.M.Arikaran for Mr.G.Aldrins Ginoth
For Respondent(s): Mr.S.C.Herold Singh
Prayer: Second Appeal filed under Section 100 of Civil Procedure Code to call for
records relating to the Decree and Judgment in A.S.83 of 2023, on the file of
Additional District and Sessions Court, Padmanabhapuram dated 29.07.2024,
confirming the Decree and Judgment passed by Sub Court, Padmanabhapuram in
O.S.No.167/2021 dated 20.06.2023.
ORDER
The plaintiff is the appellant herein and the defendant is the respondent herein.
For the sake of convenience, the parties are referred as plaintiff and defendant as per
the ranking in the suit.
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2. The suit is filed for declaration of title and possession and injunction
restraining the defendant and her men from interfering or disturbing the peaceful
possession and enjoyment of the plaintiff. Also, to cancel the document
No.226/2016, dated 18.01.2016.
3. The brief facts as stated in the plaint are that the plaintiff is a Senior Citizen
aged 82 years and he is an illiterate person. He is staying with his wife,
Mariathangam, aged 80 years and his son, Mariyasebasthiyan, aged 46 who is a
bachelor. The plaint schedule property comprised in Old Survey No.334 correlated
to Resurvey No.871/8 of Eraniel Village having an extent of 30 cents absolutely
belongs to the plaintiff as per the partition deed Document No.2774/1967 of the Sub
Registrar's Office, Eraniel in which the plaint schedule property is allotted to him as
Item No.2 in B schedule. During the bifurcation of villages, the plaint schedule
property has been included in the Nullivilai B Village and the resurvey number has
been assigned as R.S.No.870/8 and it is the only property of the plaintiff. The
plaintiff effected mutation in his name, got patta and paying the property tax. There
are well defined boundaries on all the four sides of the plaint schedule property.
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nd
4. In the 2 week of November 2013, the plaintiff was in dire need of money
for his family maintenance and he wanted to get financial assistance of Rs.1,00,000/-
by giving the plaint schedule property as security. The plaintiff along with his son,
Mariyasebasthiyan approached one Asilar, husband of the defendant for financial
assistance of Rs.1,00,000/-. The said Asilar introduced the plaintiff and his son to his
wife Sahaya Ani Bala , the defendant and she agreed to lend Rs.1,00,000/- on
condition that the plaintiff should pay interest at 24% per annum every month
through her husband, execute a registered hypothecation deed and before execution
of the registered hypothecation deed, the plaintiff should hand over his original title
deed in respect of the property to be hypothecated to her and his son should sign in 10
blank stamp papers and hand over the same to her towards security for the loan. The
plaintiff and his son agreed for the same. On 20.11.2013, the defendant's husband
Asilar along with defendant took the plaintiff and his son Mariyasebasthiyan to the
Sub Registrar's Office, Eraniel and they demanded and obtained the original title
deed of the plaint schedule property and signatures of the Mariyasebasthiyan on 10
blank stamp papers. They also obtained the signatures of the plaintiff in the
document prepared by them as hypothecation deed ( ) and his son as a
fld; gj;jpuk;
witness in it and the same was registered before the Sub Registrar, Eraniel as
Document No.4186/2013. The defendant promised that she would return the original
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title deed and the 10 blank stamp papers, obtained by her as security on the date of
repayment of the loan amount with interest at 24% per annum and after registration
of the receipt for the same. The plaintiff and his son believed the defendant. The
plaintiff was regularly paying interest every month through Asilar. On 17.1.2016, the
plaintiff expressed his readiness to repay the amount of Rs.1,00,000/- with remaining
balance interest of Rs.1133/- (totally Rs.1,01,133?-) due up to date to the defendant
and she required the plaintiff and his son to go to the Sub Registrar's Office, Eraniel
on 18.01.2016 at 2.00 P.M with amount due to her and after paying the amount to
her, sign the document that may be prepared by her as receipt. She promised that she
would return the original title deed of the plaintiff and 10 blank stamp papers signed
by his son after execution and registration of the receipt in her favour after receiving
the amount due to her. The plaintiff and his son reposed explicit confidence on the
defendant since she lent an amount of Rs.1,00,000/- on reasonable rate of interest.
On 18.01.2016 at 2.00 pm the plaintiff and his son went to the Sub Registrar Office,
Eraniel and the plaintiff paid an amount of Rs.1,01,133/- towards principal and
remaining balance interest from 1.1.2016 to 17.1.2016 to the defendant. After
receiving the amount the defendant and her husband obtained the signatures of the
plaintiff on the stamp papers prepared by them readily and the signatures of his son
as witness stating that the document is receipt for payment of the loan with remaining
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balance interest and the plaintiff and his son signed without knowing the contents.
They believed and trusted that the stamp papers on which signatures of the plaintiff
and his son were obtained on the receipt for repayment of the amount. After
registration, the plaintiff and his son demanded the original title deed of the plaint
schedule property and the 10 blank stamp papers signed by the plaintiff son. The
defendant told that they were misplaced and she would return them immediately
after they are traced out and the plaintiff and his son believed her. The defendant kept
the document obtained by her on 18.1.2016 as secret. On 11.8.2017. the defendant
and her husband along with the strangers attempted to trespass into the plaint
schedule property stating that the defendant purchased the plaint schedule property
as per sale deed dated 18.1.2016. The plaintiff never intended to sell the plaint
schedule property and there arose no occasion for that. There was no negotiation for
sale between the plaintiff and defendant. No consideration was passed and no right or
title aver the plaint schedule property was passed to the defendant. The plaint
schedule property has been still in exclusive possession and enjoyment of the
plaintiff as absolute owner. On 11.8.2017 the plaintiff arranged a document writer
namely Rajesh of the Eraniel Sub Registrar's Office to obtain copies of documents
registered on 18.1.2016 between him and the defendant. On 16.8.2017 the plaintiff
obtained the copies of Document Nos.225/2016 and 226/2016 and discovered that
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the defendant mischievously and fraudulently obtained sale deed along with the
receipt by coercion, undue influence, misrepresentation and fraud. The said
document is sham, nominal, fictitious, fraudulent, null and void abinitio and it is
liable to be cancelled. When the plaintiff questioned the defendant about the
document obtained by her by playing fraud upon him, she promised that she would
cancel the document and return the original title deed dated 20.11 2013 and the 10
signed blank stamp papers obtained by her. In spite of several repeated requests
made by the plaintiff and his son, Marnyasebasthiyan the defendant has not
cancelled the Document No.226/2016 dated 18.1.2016 and returned the original title
deed obtained from the plaintiff and the signed 10 blank stamp papers obtained from
his son. The plaintiff reserves his right to recover the original title deed and the 10
blank stamp papers in separate appropriate proceedings. The plaintiff apprehends
that taking advantage of the fraudulent document No 226/2016 the defendant may
trespass into the plaint schedule property and interfere with the peaceful possession
and enjoyment of the plaintiff over the plaint schedule property at any time. Thus, the
plaintiff prayed for declaration of title and possession of the plaintiff over the plaint
schedule property with consequential injunction restraining the defendant and her
men or agents or anybody claiming under her from interfering or disturbing with the
peaceful possession and enjoyment of the plaintiff over the plaint schedule property
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in any manner and for cancellation of the document No.226/2016 of the Eraniel Sub
Registrar's Office, dated 18.1.2016.
5. The defendant has filed a written statement stating that the facts stated in the
plaint are not true except those admitted in the written statement. The plaintiff's son
is well educated and he has been with the plaintiff and participated in all the
documentation. The plaintiff and his family members are well known to the
defendant. In the year 2013, the plaintiff approached the defendant's husband and
asked him to acquire the property and 40 coconut trees in it for Rs. 1,00,000/- in
instalments. The husband of the defendant gave Rs.1,00,000/- as a loan to the
plaintiff from the cooperative society and took the said property on lease. In this
regard, a document has been registered in the office of the Registrar of Eranial on
20.11.2013 as Document No. 4186/2013. In this situation, the plaintiff approached
the defendant husband and said that her son was not taking care of her and that he
wanted to sell the suit property for Rs.50,000/- per cent as he needed money for his
medical expenses. When the defendant's husband told the defendant about this, the
defendant arranged the money to purchase the suit property for Rs.15,00,000/- by
selling his gold ornaments, getting money from bank savings and taking loans from
his relatives. On 18.01.2016, she purchased the property and changed the patta and
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stated enjoying the property. After three months, due to the efforts of the defendant
and her husband, a road was laid near the suit property. As a result, the value of the
suit property increased. The plaintiff's son, knowing about this, interfered by
demanding that the defendant should give the suit property to the plaintiff's son for
the amount he had received in lieu of the loan, and filed a complaint with the police
about it.  The above complaint was sent to the Eranial Police Station and on
13.07.2017, a false complaint was filed with the District Superintendent of Police
and the investigation was concluded as the plaintiff had given the suit property to the
defendant in lieu of the relevant provisions. Thereafter, the plaintiff's son filed a false
complaint with the Assistant Superintendent of Police and during the investigation of
the above petition, the Assistant Superintendent of Police received Rs.14,00,000/-
from the plaintiff's son and threatened the defendant to give the suit property back to
the plaintiff's son in lieu of thereof. If he does not do so, the Superintendent of
Police's clerk threatened to file a criminal case against the defendant and the
defendant's husband. The defendant bought the property on 18.01.2016 by paying
Rs.15,00,000/- as a purchase price and has been enjoying the same by converting the
patta into her name and paying the dues. As mentioned in the lawsuit, the defendant
did not obtain the purchase document by deceiving the plaintiff and the plaintiff's
son. The defendant did not obtain signatures on the 10 unfilled stamp papers. The
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defendant did not say that she would give the original document and the unfilled
stamp papers when repaying the loan. The suit property has been in the defendant's
possession since 2013 and the suit property has been in the defendant's possession
since 2016 on the basis of ownership. Hence the defendant prayed to dismiss the suit.
6. Based on the pleading of the parties the Trial Court framed the following
issues:
"1. Is the plaintiff entitled to the relief sought by the plaintiff?
2. Is the plaintiff entitled to the permanent injunction as sought for?
3. What other relief?
Additional issues:
1. Was the property in the suit transferred to the plaintiff?
2. Is the suit property in question within the plaintiff's enjoyment?
3. Is the plaintiff entitled to a remedy to cancel document number 226/2016
registered in the office of the Registrar of Forests on 18.01.2016?"
In the Trial Court, the plaintiff was examined as P.W.1 and documents Ex.A.1 to
Ex.A.8 were produced by him. The plaintiff's son was examined as P.W.2 and
document Ex.A.9 was produced by him. On the defendant's side, the defendant was
examined as D.W.1 and documents Ex.B1 to Ex.B.11 were produced by him, and the
defendant's husband Asilar was examined as D.W.2 and documents Ex.B.12 to
Ex.B.16 were produced by him. One Gopi Anand was examined as D.W.3. and one
Suresh Babu was examined as D.W.4 and documents Ex.B.17 to Ex.B.22 were
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produced by him.  One Gandhi is D.W.5, one Chandrasekhar is D.W.6, one Mahesh
working as a Senior Engineer in the Agricultural Engineering Department is D.W.7,
one Vasanthi working as Assistant Director of Agriculture in the Office of the
Assistant Director of Agriculture, Padmanabhapuram is D.W.8 and she also
produced the document in Ex.B.23. After hearing the pleadings and perusing the
documents, the Trial Court has dismissed the suit.
7. Aggrieved over the same, the plaintiff has preferred the first appeal. The
Appellate Court had formulated the following points for consideration:
“Whether the appeal has to be allowed?”
After hearing the rival submission the Appellate Court had dismissed the first
appeal.
8. Aggrieved over the same, the plaintiff has preferred the present second
appeal. The second appeal was admitted on the following substantial questions of
law:
st
“(i)Whether the 1 Appellate Court is right in dismissing the suit
without analysing the material aspect that the property right will not
transfer, if the sale deed has not been registered properly, as per
Section 54 of Transfer of Property Act? ; and
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st
(ii)Whether the 1 Appellate Court is wrong in relying on the alleged
sale deed of title namely Ex.A.8 equal to Ex.B.3, if the document did
not possess either thumb impression or signatures of the transferor in
stamp papers?”
This Court formulated the following additional substantial question of law:
st
“(iii).Whether the 1 Appellate Court is right in shifting the entire
burden on the plaintiff when the plaintiff is illiterate?"
9. The plaintiff submitted that the plaintiff is an illiterate. The plaintiff has
sought loan of Rs.1,00,000/- from the defendant for construction of his son’s house.
The same was given by the defendant at 24% interest. The defendant admitted the
loan of Rs.1,00,000/- but denied that there was condition of 24% interest. On
perusing the Ex.A6 which is the registered agreement between the parties, it is seen
that the loan was granted for 24% interest. In the said agreement it is further stated
that the plaintiff ought to repay the loan along with interest when demanded, if not
paid the defendant would get a right to recovery the loan from the mortgaged
property. It has been specifically stated in the document that the possession was not
handed over to the defendant. The contents of the document is extracted hereunder:
“ ,t;tpjk; vdf;F chpikg;gl;l jgrpy; nrhj;ij ehd; vdJ kw;W
nrhj;Jf;fs ; rfpjk ; ghj;jpaijg;gl;L cq;fSf;F mlkhd
fldhf ];jhgpj;J vOjp je;J ngw;Wf;nfhz;l &gha; 1>00>000 / - ,e;j
&gha; xU nyl;rKk; vdJ %j;j kfd; khpa n[g];jpahDf;F tPL
fl;Lk; nryT tiff;fhf cq;fsplk; fldhf nuhf;fk; ngw;wpUg;gjhy;
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i\ &gha;f;F khjk; 1-f;F 100-f;F 2 &gha; tPjk; tUfpw tl;bAk;
KjYk ; ePq;fs ; mtrpag;gLk ; NghJ cq;fsplk ; xd;whf je;J
nfhs;syhk ; vd;Ws;sJk ; kPwpdhy ; fPo;f;Fwpg;gpLk; nrhj;jpy ; epd;Wk;
xd;whf t#y ; nra;tjw;F cq;fSf;F KO chpikAs;sJkhFk;.
jgrpy; nrhj;ij mDgtj;jpw;F tpl;Lj;jutpy;iy. jgrpy; nrhj;ij
nghWj;J ,J Kjy; mlkhdkhFk;. ”
From the above it is evident that the above transaction is only loan transaction with
24% interest per annum. If the plaintiff fails to repay the loan the defendant would
get right to recover from the mortgaged property.
10. The plaintiff had produced the discharge receipt marked as Ex.A7 which is
a receipt issued by the defendant and the same is a registered document. Therefore,
this Court is of the considered opinion that the plaintiff had paid the entire amount
along with interest and discharged the loan.
11. The alleged sale deed is marked as Ex.A8. This Court is of the considered
opinion that when the plaintiff had discharged the loan, then there is no necessity to
sell the property. In the present case, the plaintiff is claiming himself as illiterate. It is
seen from the documents the plaintiff has neither affixed signature nor affixed thumb
impression but only scratch. Therefore, it is concluded that the plaintiff is illiterate.
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In such circumstances, the burden is on the defendant to prove that under what
circumstances, the sale was executed, more so when the plaintiff is illiterate and deny
the execution of sale deed on the principle of “Non Est Factum”. The plaintiff
submitted he was under the impression that he had affixed the scratch on the
discharge receipt. It is pertinent to note that the discharge receipt and the sale deed
were executed on the same date and both were registered on the same date and the
documents are numbered next to each other i.e. receipt is Doc No.225 of 2016 and
sale is Doc No.226 of 2016. It is also pertinent to notice that the discharge receipt
was signed only by the defendant and not by the plaintiff. Whenever a party is
illiterate then the burden is on the other party to prove the transaction as genuine
based on the principles of non est factum as held by the Hon’ble Supreme Court in
Ramathal and others Vs. K.Rajamani (dead) through legal heirs and another
reported in 2024 (1) MWN (Civil) 836 = 2023 INSC 737.
12. Further, this Court is of the considered opinion that whenever the
mortgage is discharged then sale is not necessary. Whenever the mortgage was not
discharged and the land owner intended to sell the property a comprehensive deed
would have been executed and two separate deeds are not necessary. In the
comprehensive deed it would have been averred that the parties executed a mortgage
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deed, since the mortgagor failed to repay the amount, hence he is intended to sell the
property, the mortgage amount has been deduced along with the interest. The
balance amount after deducting the above amount would have been quantified which
would have been paid to the plaintiff and the same would have been indicated in the
document. It is seen from the document that the entire amount stated in the sale deed
is Rs.4,25,102/- and there is no averment regarding mortgage and discharge of
mortgage at all. Curiously the sale deed does not state regarding the handing over of
original partition deed (which is the parent document) and the same is creating
suspicion. This Court is taking judicial notice of the prevailing market practice that
the money lender are demanding to hand over the original parent document while
disburse the loan and will have upper hand in such transaction. Moreover, the entire
amount is paid in cash as per the document and also as per the averment of the
defendant, which is not acceptable. The Hon’ble Supreme Court in Ramathal’s case
referred supra has held that would be placed at a lesser pedestal in terms of its
genuineness and the relevant paragraph is extracted hereunder:
“29. The consideration has not been paid either in the Bank Account or by
Cheque or Demand Draft but is cash, so therefore, whether it was actually
paid or not would be dependent upon the acceptance of either of the Oral
Statements by the plaintiffs or the defendants. The statement of the
defendants considering their conduct would be placed at a lesser pedestal in
terms of its genuineness as compared to that of the plaintiffs. There is no
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documentary evidence as such (receipt or any such thing) signed by the
plaintiffs of having received any consideration. Thus possession cannot be
said to have been validly transferred to the defendant and the lawful
possession would still remain with the plaintiff. The first appellate court had
appreciated and analysed the evidence on record, both oral and
documentary, to record a finding that plea of non est factum was proved.”
In the present case also the defendants claims to have paid the payment of
Rs.15,00,000/- through cash which is totally unbelievable. Therefore, the case of the
defendant is unacceptable and unbelievable and creating suspicion.
13. The discussion in the above paragraph would indicate that in all
probabilities the mortgage would have been adjusted in the sale consideration, in
such circumstances the plaintiff is liable to pay the loan amount with interest.
14. The further contention of the plaintiff was that the original deed pertaining
to the property was handed over to the defendant and the plaintiff’s son had signed 10
blank papers. The defendant has not specifically denied about handing over of
original documents and 10 signed blank stamps but has stated the contents in para 12
of the plaint is denied. This Court has already held supra that there is suspicion
regarding non mentioning of original parent partition document in the sale deed.
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Therefore, this Court is of the considered opinion that both the parent document and
signed papers are with the defendant and the same was not handed over to the
plaintiff.
15. The contention of the defendant is that he had borrowed money and had
purchased the property and had given the list of borrowed money and the same is
extracted hereunder:
“ 1. State Bank of India, Kalkulam. Jewel loan No: 36166687123
Rs.3,00,000/- (Rupees Three Lakhs only).
2. State Bank of India, Nagercoil, Jewel loan No: 36176482486-
Rs. 3,00,000/-(Rupees Three Lakhs only).
3. Annai Nithi Kappakam, Villukuri- Rs. 4000/- (Rupees Four Thousand only)
4. Chunkankadai Central Bank of India - Rs. 1,00,000/-(Rupees One Lakh
only)
5. Annai Finance Villukuri - Rs.20,000/- (Rupees Twenty Thousand only)
6.Annai Finance Villukuri - Rs. 10,000/- (Rupees Ten Thousand only)
7.Tamil Nadu Ladies Welfare Scheme "Madurai" self help group,
Kinattadivilai- Rs. 1,20,000/-. (Rupees One lakh Twenty Thousand only)
8. Tamil Nadu Transport Corporation Coin Society -Rs. 1,00,000/- (Rupees
One Lakh only). ”
On perusing the same it is seen that the last one is repetition. The said Rs.1,00,000/-
was borrowed by the defendant’s husband from Cooperative Save Coin Society,
Tamil Nadu Government Transport Corporation while giving loan to the plaintiff.
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Hence the said amount cannot be show again and the same cannot be taken into
account. The total sum of the other amounts comes to Rs.5,54,000/- only. The
contention of the defendant that he had borrowed Rs.15,00,000/- and had purchased,
but had given the details of Rs.5,54,000/- only. When the defendant had borrowed
money, then the defendant ought to have paid the same through bank only. As held
supra, when the defendant had paid the entire amount in cash the said payment of
cash cannot be accepted. The defendant had not produced an iota of evidence to
prove the sale consideration amount was paid to the plaintiff.
16. The plaintiff had affixed scratch in the documents instead of signature or
thumb impression. But has affixed single thumb impression near the photo identity.
The Learned Counsel appearing for the plaintiff vehemently submitted when the
thumb impression of the plaintiff was obtained near photo identity, then the scratch
on other pages cannot be a valid affixture. This Court perused the Ex.A8 wherein it is
seen that the plaintiff’s thumb impression was obtained near the photo identity, in
such circumstances, the scratch in other pages would not amount to valid affixture.
In fact while executing it is necessary to affix thumb impression on all pages instead
of obtaining scratch when the plaintiff is able to affix thumb impression.
Consequently the document has not been executed as per law.
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17. The Learned Counsel appearing for the defendant vehemently submitted
that the plaintiff son namely Mariyasebasthiyan was educated and he was there
throughout all transactions, hence the plea of illiteracy of the plaintiff cannot be a
ground. On the other hand, the plaintiff submitted that the defendant was known to
them and believed her, but the defendant had obtained signatures on the blank papers
of the son and had utilized the same. On perusal of the Ex.A6 it is seen that the said
Mariyasebasthiyan has signed it in Tamil and the said document is the initial
document executed for obtaining loan and the said document was accepted by the
plaintiff. However, on perusing the other documents namely Ex.A7 and Ex.A8, it is
seen that the said Mariyasebasthiyan had signed it in English, which signatures the
plaintiff denies. When the admitted signature is in Tamil and the denied signature is
in English, then the burden is on the defendant to prove that the said
Mariyasebasthiyan had signed as witness in the document and the same is genuine.
The defendant had failed to prove the same, hence the said contention of the
defendant is rejected.
18. This Court has already held supra in all probabilities the plaintiff would
not have paid the loan amount and the same would have been adjusted in the sale
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consideration, in such circumstances, the plaintiff is liable to pay the loan amount of
Rs.1,00,000/- along with interest. Therefore, this Court is directing the plaintiff to
pay Rs.5 lakhs/- or some reasonable amount. The same amount carries 6% interest
per annum from the date of judgment of O.S.No.167/2021 i.e., 20.06.2023 till the
date of payment to the defendant.
19. For the reasons stated supra, this Court is of the considered opinion that all
the substantial questions of law are answered in favour of the plaintiff and the second
appeal is allowed with the above directions. No costs. Consequently, connected
miscellaneous petition is closed.
27.10.2026
NCC : Yes / No
Index : Yes / No
Internet : Yes
Tmg
To
1.  Additional District and Sessions Court,
Padmanabhapuram.
2.  Sub Court, Padmanabhapuram.
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3.Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
S.SRIMATHY, J.
Tmg
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JUDGMENT MADE IN
SA(MD) NO. 764 of 2024
DATED :  27.10.2026
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