GURUSWAMY Vs. S. AIYAVOO (DIED)

JUDGEMENT

(1.) Challenge in this second appeal is made to the judgment and decree dated 28.07.2003 passed in A.S.No.17 of 2003 on the file of the Additional District Judge [Fast Track Court IV, Erode] at Bhavani reversing the judgment and decree dated 29.04.2002 passed in O.S.No.306 of 1991 on the file of the II Additional District Munsif Court at Bhavani.

(2.) The second appeal has been admitted on the following substantial questions of law.

(3.) After hearing the arguments of the counsel appearing for the respective parties and on a perusal of the judgments and decrees of the Courts below, it is found that, though the first appellate court being the final court of facts, has not assessed the merits of the case of the respective parties by adverting to the oral and documentary evidence adduced in the matter, particularly, the oral and documentary evidence adduced by the defendants through D.Ws.1 to 4 as well as the documentary evidence projected as Exs.B1 to B38 and on the other hand found to have accepted the plaintiff's case purely on the basis of Ex.A1 sale transaction without considering the challenge made to the said sale transaction by the defendants, particularly, the challenge of beuami nature of the said transaction thrown by the defendants as well as the claim of the defendants to the property by way of the Will and the other defence projected by the defendants for rejecting the plaintiff's lis,purely by holding that Ex.A1 satisfies the definition of sale as outlined u/s.54 of the Transfer of Property Act, the first appellate court thereby holding that it is not a sham nominal document and on the other hand, the same is a genuine document and accordingly proceeded to set aside the judgment and decree of the trial court and thereby decreed the suit as prayed for with costs.