Abdul Hadi, J. - (1.) The defendant is the appellant in this second appeal. He died pending second appeal and his legal representative has been brought on record. The 1st respondent/plaintiff (whose L.Rs. are the other respondents) has filed O.S.No. 176 of 1978 for a declaration that Ex.B.3 (certified copy of Ex. A. 1) sale deed dated 13-9-1977 in relation to the suit property, executed by him in favour of the defendant is sham and nominal document and hence invalid and for consequential injunction restraining the defendant from taking possession of the suit property in execution of the decree in O.S.56 of 1970 on the file of District Munsif Court, Paramakudi. The said suit O.S. No. 56 of 1970 was filed by the plaintiff himself against the mortgagees of the suit property, for redemption of the mortgage. In the said suit preliminary decree was passed on 6-10-1972 and the appeal A.S. 134 of 1973 against the said preliminary decree was also dismissed on 19-10-1974. Subsequently, the final decree was also passed. The defendant herein pursuant to Ex.A.1 impleaded himself in the said suit as second plaintiff in the place of original plaintiff. He filed I.A. 928 of 1977 for delivery of the property pursuant to final decree and order for delivery was made on 18-3-1978. But before delivery could be taken, the present suit in O.S. 176 of 1978 has been filed. No doubt, the trial Court decreed O.S. 176 of 1978 and the Appellate Court in A.S. 133 of 1981 has confirmed the said decree. Hence the present Second Appeal.
(2.) In this second appeal after arguing partly on certain other aspects, learned counsel for the appellant at a later stage represented that he is also found out that a very material and crucial document viz., Ex.B.1 has not been considered at all by both the Courts below and if Ex.B.1 had been taken into consideration, there is no scope at all for both the Courts below holding that Ex.A.1 (Ex.B.3) sale deed dated 30-9-1977 was a sham and nominal document. He also represented that the contents of Ex.B1 were not earlier known to him and that is why the above referred to contention is not found in the original memorandum of grounds in the second appeal. Thereafter he also filed C.M.P. No. 16953 of 1995 for raising additional grounds on the above aspect The actual additional grounds raised are as follows:- (a) The Courts below have failed to advert to Ex.B 1 which is an affidavit filed by the appellant, wherein the plaintiff has candidly admitted the due execution oi the same (Ex.B.3). (b) The Court below further failed to refer the oral evidence regarding Ex.B1 and the failure to consider this place of admission is a serious error committed by them. With reference to the above said grounds, what is stated in the C.M.P. is that the additional substantial ground of law involved in the appeal is. (1) Whether in view of the admission of the plaintiff made in Ex. B. 1, is it open to the plaintiff to plead that Ex.B.3 sale deed is sham and nominal and obtain declaration by fraud and misrepresentation.
(3.) No doubt, this C.M.P. is opposed by the learned counsel for the respondent. Since it raises a pure question of law by showing that a material documentary evidence, in the form of an affidavit presented before a Court which is actually an admission by the plaintiff, has not been considered by the both Courts below. There could be no objection for entertaining the said additional ground. Though learned counsel for the respondent, referring to the above referred the additional substantial question of lave in relation to the above said Ex.B.1. sought to submit that it is really a question of estoppel, which would require factual plea; but I find that there is no merit in this argument at all; strictly speaking there is no estoppel involved. The only question is whether in the light of Ex.B. 1 can it be stated that Ex.B.3 sale deed is a sham and nominal document and obtained by fraud and misrepresentation. The net result is, the C.M.P. is allowed as prayed for.;