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2005 DIGILAW 138 (MAD)

Srinivasan v. Marudambal & Others

2005-01-29

A.R.RAMALINGAM

body2005
Judgment :- The second appeal has been preferred by one Srinivasan being the first defendant in OS.No.175 of 1988 on the file of the District Munsif Court, Jayamkondam against the judgment and decree passed by the Sub Judge, Ariyalur in A.S.No.169 of 1990 in and by which the Sub Judge has set aside the judgment and decree of the District Munsif, Jayamkondam and allowed the appeal granting decree for specific performance and for possession in respect of the suit properties. 2. The plaintiff viz., one Marudambal filed O.S.No.175 of 1988 against her own brother Srinivasan and other sisters in the capacity of legal heirs of the deceased father Chinnasamy (defendants 2 to 4) and one Rasu Padayachi (fifth defendant) the alleged purchaser of some portion of the suit properties for the relief of specific performance and for possession based upon an agreement of sale executed by the first defendant Srinivasan and father Chinnasamy on 15.4.1985 in favour of the plaintiff. The agreement of sale is a registered one and Rs.4000/= was paid by the plaintiff as advance to the first defendant and Chinnasamy and the agreed sale consideration is Rs.7000/= and that the sale deed was agreed to be executed within three years after getting the balance amount of Rs.3000/=. Inspite of demands and advocate notice, the first defendant and Chinnasamy were not prepared to execute the sale deed and since Chinnasamy died and the fifth defendant purchased some portion of the suit properties, the suit has been filed against the defendants. 2. The suit has been resisted by the first defendant alone and defendants 2 to 5 have remained ex parte. According to the first defendant and his written statement, the suit properties are the properties allotted to the share of the first defendant in a partition between himself and his father Chinnasamy and that the first defendant approached the plaintiff for getting a loan of Rs.2000/= and on getting Rs.2000/= as loan from the plaintiff, as usual and for avoiding any Debt Relief Act, the first defendant, as insisted by the plaintiff, executed a registered agreement of sale on 15.4.1985 and that towards interest, the suit properties were handed over for enjoyment of the plaintiff. Further, the first defendant is always ready and willing to repay Rs.2000/= to the plaintiff and that the agreement of sale was not intended to be, as such, for enforcement and it was entered into only as security for prompt repayment. The first defendant has not sold any portion of the suit properties in favour of the fifth defendant and defendants 2 to 4 have no right upon the suit properties and thereby defendants 2 to 5 are unnecessary parties to the suit and thereby the suit is liable to be dismissed. 3. On trial, the District Munsif, after examining the plaintiff as PW1 and two other witnesses viz., Raman and Radhakrishnan as P.Ws.2 and 3 and marking Exs.A1 to A5 and also examining the first defendant as DW1 and the fifth defendant as DW2 and marking Ex.B1, has come to the conclusion that the suit agreement of sale marked as Ex.A1 is not at all a document intended to be agreement of sale and it has been executed only for loan transaction between the plaintiff and the first defendant and it is only for the sake of security and thereby discretionary relief of specific performance cannot be granted and consequently, dismissed the suit. 4. On appeal preferred by the plaintiff, Marudambal before the Sub Court, Ariyalur in A.S.No.169 of 1990, the Sub Judge has come to the conclusion that Ex.A1 agreement of sale is one of real sale agreement intended to be enforced as such and it is not open for the first defendant to plead and defend that the agreement of sale came into existence on account of loan transaction only and the plea otherwise taken by the first defendant is against section 92 of the Evidence Act and thereby allowed the appeal and set aside the judgment and decree of the Trial Court. 5. I have gone through the pleadings and the judgments of both the courts below in the light of the arguments of the counsel appearing for either side in detail. The fact remains that the plaintiff and the first defendant as well as defendants 2 to 4 are brother and sisters and the deceased Chinnasamy is their father and the further fact remains that defendants 2 to 4 are also legal heirs of the deceased Chinnasamy apart from the plaintiff and the first defendant. The fact remains that the plaintiff and the first defendant as well as defendants 2 to 4 are brother and sisters and the deceased Chinnasamy is their father and the further fact remains that defendants 2 to 4 are also legal heirs of the deceased Chinnasamy apart from the plaintiff and the first defendant. According to the first defendant, already there was a partition between himself and his father Chinnasamy and the suit properties were allotted to the share of the first defendant alone. Whatever it is, the said deceased Chinnasamy happens to be the joint executant of the agreement of sale viz., Ex.A1. After his death, the plaintiff has added defendants 2 to 4 in the suit. The main and substantial plea and stand of the first defendant is that Ex.A1 viz., agreement of sale is not at all intended to be a sale agreement and instead it is only a document of security for the prompt repayment of the loan amount of Rs.2000/= obtained by the first defendant from the plaintiff and that is why three years time just like in the case of pro note has been provided in the agreement and that is why the plaintiff has waited almost for three years and filed the suit even before receipt of reply notice from the first defendant for the notice issued by the plaintiff's counsel and that is why one of the attestors viz., Rasu Padayachi who is figuring as the fifth defendant as well as DW2 has given evidence that Ex.A1 came into existence only on account of loan transaction and document of security and not as sale agreement. However, the question arises as to whether such a stand and plea can be taken by the first defendant and whether parties can be allowed to let in evidence otherwise contrary to the terms of the document viz., Ex.A1. For this question, as rightly pointed out by the respondents' counsel, there is a Division Bench ruling of this court in NANJAMMAL AND ANOTHER v. PALANIAMMAL ( 1993(2) LW 205 ) which stands as direct answer. In other words, the Division Bench of this court, in the above ruling, has clearly held that a plea like this taken by the first defendant herein cannot be taken in view of the specific bar under section 92 of the Evidence Act. In other words, the Division Bench of this court, in the above ruling, has clearly held that a plea like this taken by the first defendant herein cannot be taken in view of the specific bar under section 92 of the Evidence Act. The facts of this ruling are mostly similar to the facts of this case. 6. Even while admitting the second appeal, one of the questions of law framed is (i) Whether the appellate court is correct in law in construing the suit agreement as an agreement of sale overlooking the surrounding factors which indicate that the relationship between the parties was one of debtor and creditor and not vendor and vendee and in as much as the said question of law has been framed on 27.4.1984 and even before this date, the above said Division Bench ruling has been given on 2.3.1993 itself, it is needless to say that the stand and plea taken by the first defendant in the suit is not at all sustainable in law and if it were to be entertained as such, then, no sale agreement can survive and everyone who is a party to such sale agreement can take such a plea and that is why to avoid such unsustainable stand and plea, section 92 of the Evidence Act stands as such. Therefore, whatever may be the relationship between the parties and other circumstances, the court cannot entertain the stand and plea of the first defendant in the suit when there is section 92 of the Evidence Act which stands contrary. 7. Therefore, in all, the second appeal deserves to be dismissed as not maintainable and devoid of merits and the judgment and decree of the Sub Court is confirmed. 8. In the result, the second appeal is dismissed with costs and the judgment and decree of the Sub Court, Ariyalur is confirmed.