S. Raju Pillai and another v. Paramasivam — 1991 DIGILAW 179 (MAD)

Judgment :- The defendants are the appellants in this appeal. 2. The suit is one for specific performance of an agreement dated7.5.1979. According plaintiffs, the first defendant is entitled to 3 1/2 cents of the suit property and the defendant is entitled to 21/2 cents and they jointly executed an agreement on marked as Ex.A-1. The consideration agreed is Rs.11,700, out of which a sum of was received by the defendants by way of advance. As per the agreement, the plaintiff to take over the debt due under a loan agreement executed by the defendants in the plaintiff ’ s mother by name Maha-mayee Ammal. A sum of Rs.2,500 was towards that and the balance was to be paid by the plaintiff at the time of registration sale deed before the Sub Registrar. According to the plaintiff, he was always ready willing to perform his part of the contract; but the defendants were not inclined to the sale deed. A notice was issued by the plaintiff on 4.7.1979 to the defendants. The was accepted by the second defendant while the notice sent to the first defendant unserved. The second defendant sent a reply on 12.7.1979 under Ex.A-7. The defendant stated that her husband might have got her thumb impression on the document without informing her of the contents of the same. It was also stated that she having good relationship with her husband. Thus the second defendant denied agreement. 3. The defendants filed R.C.O.P.No.843 of 1980 on the file of the District Munsif, Town for eviction under Sec.10(2)(i) of the Tamil Nadu Buildings (Lease and Rent Act against the plaintiffs mother on the ground of wilful default in payment of rent petition is marked as Ex.A-8. The counter filed by the plaintiff’s mother on the said is marked Ex.B-1. 4. The present suit was filed on 6.8.1982 for specific performance. 5. The suit was contested by the defendants on the grounds that the agreement executed by the second defendant. Therefore, it was not valid. Secondly it was urged the plaintiff was never ready and willing to perform his part of the contract and he entitled to enforce the same specifically. The third contention was that there was cancellation of the agreement by the defendants. Fourthly, it was urged that the plaintiff had not performed his part of the contract of discharging the debt due mother. 6. The third contention was that there was cancellation of the agreement by the defendants. Fourthly, it was urged that the plaintiff had not performed his part of the contract of discharging the debt due mother. 6. The trial court upheld the contentions put forward by the defendants and dismissed suit, and on appeal, the lower appellate court has reversed the judgment and decree trial court. The lower appellate court has found that the agreement was true and executed by both the defendants. It was also found that the plaintiff was ready and willing to his part of the contract and there was no abandonment of the claim by the plaintiff time. It was held that there was no oral cancellation, as pleaded by the defendants. Consequently, a decree was passed by the lower appellate court in favour of the plaintiff. Aggrieved by the same, the defendants have preferred this second appeal. 7. Learned counsel for the appellants reiterated the contentions put forward defendants in the court below. 8. Learned counsel invited my attention to the discrepancies in the evidence of P.W.1 P.W.2 and contended that the burden being heavily on the plaintiff, he should have that there was an agreement executed by both the defendants. According to evidence on record would not make out the execution of Ex.A-1 by the second defendant therefore it is not enforceable. It is also argued by learned counsel that unless and plaintiff discharges the loan of his mother, he is not entitled to maintain the suit for performance. Lastly, it is contended that the case of oral cancellation ought to have accepted by the lower appellate court. 9. The question which arise for consideration in this appeal are questions of fact. The appellate court is the final court of fact and even if there is any grievous error committed the lower appellate court, is not open to this Court to interfere with the finding of fact at by the lower appellate court (Vide: Ramachandra Ayyar v. Ramalinga Chettiar, A.I.R. S.C. 302). 10. No doubt there is a discrepancy between the evidence given by the plaintiff as the attestor Lakshmana Pillai as P.W.2. But the lower appellate court has rightly reliance on certain circumstances which go to support its conclusion that the agreement executed by both the defendants and the second defendant’s case was wholly unbelievable. 10. No doubt there is a discrepancy between the evidence given by the plaintiff as the attestor Lakshmana Pillai as P.W.2. But the lower appellate court has rightly reliance on certain circumstances which go to support its conclusion that the agreement executed by both the defendants and the second defendant’s case was wholly unbelievable. As referred to lready, in the notice issued by the second defendant in reply to the notice, her case was not that she did not affix her thumb impression to Ex.A-1. On hand, her case was that her husband might have obtained her thumb impression document. Thus, she was not prepared to deny her thumb impression at the stage But when she gave evidence as D.W.2, she categorically denied the thumb impression in the document. In the evidence, she stated that she was not living with her husband over seven or eight years. But that version is obviously, false. She had received the Ex.A-4 in the very same house in which the first defendant was admittedly living. In which is the petition filed by the defendants together under the Tamil Nadu Buildings and Rent Control) Act for eviction of the plaintiffs mother, the same address is given the husband and wife. Even at the time of the suit, they continued to be living there same place. There is no explanation for this on the part of the second defendant. It from a reading of the evidence of D.W.1, and D.W.2 that neither of them is inclined the truth. The first defendant, as D.W.I stated that the petition for eviction against plaintiffs mother was filed only by himself and his wife was not a party thereto. But was confronted with Ex.A-8, he deposed that the contents of Ex.A-8 were wrong. He the extent of denying the correctness of the records already filed in court. However, defendant admitted the thumb impression found in Ex.A-2, which was a loan between the defendants and the plaintiff’s mother. The version of the second defendant her husband might have obtained her thumb impression without informing her contents is on the face of it unbelievable. If really there was some dispute between husband and wife as projected at present, she would not have affixed her thumb to any document brought to her by her husband without knowing the contents thereof. The version of the second defendant her husband might have obtained her thumb impression without informing her contents is on the face of it unbelievable. If really there was some dispute between husband and wife as projected at present, she would not have affixed her thumb to any document brought to her by her husband without knowing the contents thereof. the other hand, there is no dispute between the husband and wife, there is nothing disbelieve the case put forward by the plaintiff that the husband got the thumb impression the wife and represented it to be so. P.W.2 has stated clearly that the husband document inside the house and got the thumb impression of the wife. There is no reject the same. At any rate, sitting in second appeal, I do not find any error in the judgment of the first appellate court in accepting the case of the plaintiff and rejecting that of the defendants. The fact that there are certain discrepancies between the evidence P.Ws.1 and 2 would not prevent the court of fact from arriving at a finding on the basis entire evidence on record. 11. No doubt the burden was on the plaintiff to prove execution of the document. question of burden loses its importance after both the parties have chosen to evidence before the court. In this case, the entire evidence is before the court and the is certainly entitled to come to a conclusion on facts after considering the entire evidence. The lower appellate court has done only the same. 12. Learned counsel for the appellants placed reliance on the judgment of a Division of the Andhra Pradesh High Court in Pudi Lazarus v. Rev Johnson Edward, A.I.R. 1976 243. In that case, as per the agreement, the plaintiff was to pay to the first defendant, sum of Rs.7,000.for the discharge of a particular debt and Rs.10,000 within to 10 days the date of the agreement. Admittedly the amount was not paid. Before the court, contended by the plaintiff that the defendant did not give a list of creditors and therefore was not in a position to pay the amounts. Admittedly the amount was not paid. Before the court, contended by the plaintiff that the defendant did not give a list of creditors and therefore was not in a position to pay the amounts. That contention was rightly rejected by the holding that the agreement was to pay to the defendant and not to the creditors After taking note of the fact that there was no agreement by the plaintiff to pay creditors directly and rejecting his contention, the bench went on to observe, that even plaintiff had to pay to the creditors directly, he ought to have discharged the debts seeking specific performance of the Agreement. That part of the judgment is really is wholly unnecessary for me to see whether the principle stated therein is correct But, on the facts of the present case, it is clear that there was no agreement between parties that the plaintiff should discharge the debts due to his mother Mahamayee before he could insist upon a sale deed being executed by the defendants. The terms the agreement as That only means that the plaintiff had taken over the debt, was due to his mother Mahamayee Ammal and from the date of the agreement, defendants would not be responsible for the payment of the debt. The agreement is not to the effect that the plaintiff should discharge the debt before he ask for the sale deed. Hence the judgment of the Andhra Pradesh High Court has no on the present case. 13. The case of oral cancellation is absolutely without any support from the evidence. lower appellate court has rightly rejected the same. 14. As regards the readiness and willingness of the plaintiff, the lower appellate court found on the facts that the plaintiff was ready and willing to perform his part. In issued the notice to the defendant even in July, 1979, within two months from the agreement. It is only the defendants, who prolonged under the provisions of the Nadu Buildings (Lease and Rent Control) Act. The explanation given by the plaintiff waited for the disposal of the Rent Control matter before approaching the court for performance has been accepted by the lower appellate court. It is well-settled that contract relating to immovable property, time is not the essence of the contract. The explanation given by the plaintiff waited for the disposal of the Rent Control matter before approaching the court for performance has been accepted by the lower appellate court. It is well-settled that contract relating to immovable property, time is not the essence of the contract. In this it has been found as a fact that the plaintiff was ready and willing to perform his part contract and there is no reason why I should not accept that finding. 15. I do not find any infirmity in the discussions and the findings rendered in the judgment of the lower appellate court. In the circumstances, there is no merit in the Second and it is hereby dismissed. But, there will be no order as to costs. Appeal dismissed.