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2002 DIGILAW 189 (MAD)

Valliamal alias Valliatha v. Angammal

2002-03-06

P.D.DINAKARAN, S.JAGADEESAN

body2002
Judgement P. D. DINAKARAN, J. :- The above appeal is directed against the judgment and decree dated 17-12-1996 made in A. S. No. 179 of 1982 reversing the judgment and decree dated 18-12-1981 in O. S. No. 88 of 1977 on the file of the learned subordinate Judge, Erode. 2. For the purpose of convenience the parties are arrayed as per their rank in the suit. 3. The appellants are the legal representatives of the first defendant; and respondents 1 and 2 are legal representatives of the plaintiff in O.S. No. 88 of 1977 on the file of the learned Subordinate Judge, Erode, wherein, the plaintiff sought for specific performance to direct the first defendant therein to execute a sale deed in favour of the plaintiff therein with regard to the 'A' schedule property, based on an agreement dated 19-1-1975 entered into between the plaintiff and the first defendant therein; and for payment of Rs. 11,132.95 with interest, which was said to have been paid by the plaintiff to the Land Development Bank, Kangayam towards the loan availed by the first defendant from the said bank towards mortgage dated 18-7-1970 for a sum of Rs. 25,000/-, marked as Ex. A3, with regard to 'A' and 'B' schedule properties in excess of the sale consideraqtion agreed under the agreement dated 19-1-1975. 4.1. The plaintiff claims that he was in possession of the 'A' schedule property under a lease deed dated 15-8-1971, marked as Ex. A1, entered into between the plaintiff and the 1st defendant and thereafter he had entered into a sale agreement with the first defendant on 19-1-1975, which was marked as Ex. A2, for sale of 'A' schedule property for a sum of Rs. 30,000/-, and paid a sum of Rs.6000/- as advance as per the said agreement dated 19-1-1975 and agreed to discharge the dues payable by the first defendant to the Land Development Bank, Kangayam, to pay the balance on or before 25-4-1975 and to get the sale deed executed in his favour. 4.2. The plaintiff further contends that a few days after the agreement dated 19-1-1975, the plaintiff paid a sum of Rs.3620/- to the said Bank on behalf of the 1st defendant and handed over the receipt for the same to the first defendant; he had paid a further sum of Rs. 7186/- to the 1st defendant as per Ex. 4.2. The plaintiff further contends that a few days after the agreement dated 19-1-1975, the plaintiff paid a sum of Rs.3620/- to the said Bank on behalf of the 1st defendant and handed over the receipt for the same to the first defendant; he had paid a further sum of Rs. 7186/- to the 1st defendant as per Ex. A5; and accordingly, he had made a total payment of Rs. 16806/-, as per the following details: (i) Amount paid on the date of agreement : Rs. 6000.00 (ii) Amount paid to Bank : Rs. 3620.00 iii) Amount paid to 1st defendant : Rs. 7186.00 Rs. 16806.0 0 4.3. Since the plaintiff was already in possession from 15-8-1971, it is contended that he had also installed an Oil Engine Pump set at a cost of Rs.3750/- in the suit property. 4.4. It is further alleged that even though the plaintiff had paid a sum of Rs.16806/- and had undertaken to discharge the balance amount payable to the bank on behalf of the 1st defendant, the 1st defendant was refusing to execute the sale in favour of the plaintiff as per the agreement dated 19-1-1975. On the other hand it is alleged that the 1st defendant had instigated the bank to take steps to bring the properties for auction, which necessitated the plaintiff to make the following payments : (i) As per Ex.A 11 dated 25-1-1977 : Rs. 3605.15 (ii) As per Ex.A11 dated 31-1-1977 : Rs. 9595.20 (iii) As per Ex.A11 dated 22-2-1977 : Rs. 11126.6 0 Rs. 24326.9 5 4.5. On the other hand, the 1st defendant sold the 'B' schedule property to the defendants 2 and 3 on 21-2-1977, which was registered on 25-2-1977 for a sum of Rs.15000/-. 4.6. The plaintiff therefore contends that he had made a total payment of Rs.41,132.95 and had thus paid a sum of Rs. 11,132.95 more than the agreed sale consideration, viz., Rs.30,000/-, as per the agreement dated 19-1-1975. hence, the plaintiff laid the above suit. 5.1. The 1st defendant resisted the suit on the ground that the plaintiff was not ready and willing to perform his part of obligation. the 1st defendant denied the payment of Rs. 11,132.95 more than the agreed sale consideration, viz., Rs.30,000/-, as per the agreement dated 19-1-1975. hence, the plaintiff laid the above suit. 5.1. The 1st defendant resisted the suit on the ground that the plaintiff was not ready and willing to perform his part of obligation. the 1st defendant denied the payment of Rs. 3620/- as well as payment of Rs.7186/- on various occasions as alleged; that the Oil Engine Pump set was installed at the expense of the 1st defendant and that the relief sought for is barred by limitation. 6. According to Defendants 2 and 3, they were not aware of the sale agreement dated 19-1-1975 entered into between the plaintiff and the 1st defendant and therefore, they are bonafide purchasers of the 'B' schedule property under sale deed dated 21-2-1977, registered on 25-2-1977 for a sum of Rs.15000/-, which is marked as Ex. A14. 7. In support of the above rival contentions, the plaintiff examined himself as PW1 and marked 17 exhibits on his behalf, namely A1 to A17, and the defendants 1 and 3 examined themselves as D.W. 1 and D.W.2 respectively, and marked two documents namely Ex. B1 and B2, on their behalf. 8. On appreciation of the oral and documentary evidence, the trial Court found that the plaintiff was not in possession of the 'A' schedule property; and the oil engine pump set was also not installed by the plaintiff. Even though the trial Court found that the plaintiff and the 1st defendant entered into an agreement dated 19-1-1975, pursuant to which the plaintiff made a payment of Rs.6000/- to the 1st defendant, on the date of the asgreement, the trial Court disbelieved the payments of Rs. 3619.85 under Ex. A4 and Rs.7186/- made under Ex. A5 as claimed by the plaintiff; and further held that the payments made under Ex. A11 to A13 are made on the plaintiff's own accord and not towards the sale consideration and therefore held that Exs. A11 to A13 cannot be relied upon. Accordingly, the trial Court disbelieved the case of the plaintiff; accepted the case of the defendants 2 and 3 that they are bona fide purchasers of the 'B' schedule property; and therefore dismissed the suit. 9. A11 to A13 cannot be relied upon. Accordingly, the trial Court disbelieved the case of the plaintiff; accepted the case of the defendants 2 and 3 that they are bona fide purchasers of the 'B' schedule property; and therefore dismissed the suit. 9. However, on appeal preferred by the plaintiff, the learned Judge, by decree and judgment dated 17-12-1996 in A.S. No. 179 of 1982, disbelieved the case of the defendants for the sale of 'B' schedule property by the first defendant in favour of the defendants 2 and 3 under Ex. A14 for a sum of Rs.15000/-, even though the said sale deed marked as Ex. A14 contains a recital that the sale was intended to discharge the mortgage debts payable by the first defendant to the Bank, as there was no bona fide in the contention of the subsequent purchasers, namely defendants 2 and 3, that they had failed to make enquiries into the encumbrances on the 'B' schedule property on the date of execution of Ex. A14. On the other hand, the learned Judge accepted the payments said to have been made by the plaintiff under Ex. A4, A5 and A11 to A13, and hence set aside the judgment and decree of the Trial Court dated 18-12-1991 in O. S. No. 88 of 1977 and decreed the suit as prayed for. 10. Since during the pendency of the appeal both the plaintiff and the 1st defendant died, their legal representatives were brought on record, and the legal represenatives of the 1st defendant preferred the above Letters Patent Appeal. 11.1. Mr. S. V. Jayaraman, learned senior counsel for the defendants/appellants herein, strongly challenges the findings of the learned Judge regarding the payment of Rs.7186/- said to have been made by the plaintiff to the 1st defendant and contends that, since the plaintiff had not chosen to pay the balance sale consideration on or before 25-4-1975 as agreed, the plaintiff had come with false testimony and therefore, he is not entitled for the relief of specific performance as held by the Division Bench of this court in Sirigineedhi Subbarayadu v. Kopanathi Tatayya reported in 1937 MWN 1158.