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2009 DIGILAW 2839 (MAD)

Abdul Jalil v. Mahaboob Jan & Others

2009-07-31

M.DURAISWAMY

body2009
Judgment : M. Duraiswamy, J. The above second Appeal arises against the judgment and decree in A.S. No. 40 of 1997 on the file of First Additional District Court cum Chief Judicial Magistrate, Krishnagiri reversing the judgment and Decree in S.No. 318 of 1996 on the file of First Additional Sub-Court, Hosur. 2. The plaintiff in the suit is the appellant in the above second appeal. The respondents herein are the defendants in the suit. .3. The plaintiff filed the suit in O.S. No. 318 of 1996 on the file of the First Additional Sub-Court, Hosur for specific performance and for delivery of possession. .4. The brief case of the plaintiff is as follows: .The husband of the first defendant and father of the defendants 2 to 4 is one Yakub Saheb. On 16. 1994, the said Yakub Saheb entered into the agreement to sell the suit property in favour of the plaintiff. The said agreement is also jointly executed by the second defendant along with his father. On the date of the agreement, the plaintiff paid the husband of the first defendant and also the second defendant jointly an advance sale consideration of Rs. 30,000/- in cash out of the total sale consideration of Rs. 85,000/-. On receipt of the said amount of Rs. 30,000/-, the executants agreed to execute the sale deed on receipt of the balance sale consideration of Rs. 55,000/-within six months time. Subsequently, the said Yakub Saheb died. The defendants 1 to 4 are the legal representatives of the deceased Yakub Saheb. The plaintiff approached the defendants to execute the sale deed and receive the balance sale consideration. The plaintiff was also having the balance sale consideration amount readily with him. Since the defendants failed to execute the sale deed, the plaintiff issued a registered notice to the first defendant on 211. 1994. The plaintiff also produced an extract of his savings bank account to show that he had ready money and he is continuously ready and willing to perform his part of the contract. The fifth defendant is a tenant in respect of the suit property under the said Yakub Saheb. Since the defendants 1 to 4 refused to execute the sale deed, the plaintiff filed the suit. 5. The fifth defendant is a tenant in respect of the suit property under the said Yakub Saheb. Since the defendants 1 to 4 refused to execute the sale deed, the plaintiff filed the suit. 5. The brief case of the defendants are as follows: .(i) According to the defendants, the age of the defendants are not mentioned correctly with some ulterior motive. The fourth defendant was a minor at the time of the filing of the suit. The correct age of the third defendant is only 19 years. While so the age of the first defendant has been wrongly mentioned as 22. The correct age of the second defendant is 22 years, but the age of the second defendant has been wrongly mentioned as 24 years. .(ii) The suit property belonged to the defendants 2 to 4 by virtue of a registered Partition Deed dated 15. 1981. The said Partition Deed was executed between the sons of Mohammed Ali Saheb. The G Schedule property in the said Partition Deed is the suit property. As per the said Partition Deed, Yakub Saheb was only given right of management in respect of the G Schedule property, until the defendants 2 to 4 attain majority. The said Yakub Saheb died on 17. 1994 after prolonged illness. He was in unconscious state at least for two months prior to his death. The said Yakub Saheb fell down accidentally on 21. 1994 and sustained fracture on his hip bone and thigh bone. In spite of the treatment, the said Yakub Saheb died on 17. 1994. Therefore, the said Yakub Saheb and the second defendant did not execute any agreement as alleged by the plaintiff. The defendants did not receive Rs. 30,000/-as advance. The defendants never agreed to execute the sale deed on receipt of balance sale consideration of Rs. 55,000/-. The suit property is the absolute property of the defendants 2 to 4 only. The suit property was let out to the fifth defendant by the said Yakub Saheb on 10. 1993 for the purpose of running a tailoring shop. (iii) After the death of the said Yakub Saheb, the fifth defendant sublet the suit property to the plaintiff. Therefore, the first defendant, as guardian of the defendants 3 and 4 issued a notice dated 111. 1994 to the plaintiff and the fifth defendant for delivery of the possession of the suit shop. (iii) After the death of the said Yakub Saheb, the fifth defendant sublet the suit property to the plaintiff. Therefore, the first defendant, as guardian of the defendants 3 and 4 issued a notice dated 111. 1994 to the plaintiff and the fifth defendant for delivery of the possession of the suit shop. The fifth defendant sent a false reply to the notice issued by the first defendant. The fifth defendant in order to harass the defendants 1 to 4, set up the plaintiff to lay a false claim to the suit property. The suit has been instituted by the plaintiff at the instigation of the fifth defendant. The defendants denied the execution of the suit agreement by the said Yakub Saheb and the second defendant. The suit agreement is a forged document. The defendants prayed for dismissal of the suit. 6. Before the trial Court, on the side of the plaintiff, 3 witnesses were examined and 5 documents Exhibits A-1 to A-5 were marked. On the side of the defendants, 3 witnesses were examined and 3 documents Exhibits B-1 to B-3 were marked. 7. The trial Court after taking into consideration the oral and documentary evidences of both the parties decreed the suit for specific performance and for delivery of possession. 8. Aggrieved over the judgment and decree of the trial Court, the defendants 1 to 4 filed an appeal in A.S. No. 40 of 1997 on the file of First Additional District Court cum Chief Judicial Magistrate, Krishnagiri and the lower appellate Court after taking into consideration the materials available on records reversed the judgment and decree of the trial Court and allowed the appeal. 9. Aggrieved over the judgment and decree of the lower appellate Court made in A.S. No. 40 of 1997, the plaintiff has filed the above Second Appeal. 10. Heard Mr. M.V. Krishnan, the learned counsel for the appellant and Mr.M.J. Jaseem Mohamed, the learned counsel for the respondents 1 to 4. 11. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration: 1) Whether the Learned District Judge has substantially erred in law in reversing the well considered judgment of the learned subordinate Judge decreeing the suit for specific performance? 2) Whether the Lower Appellate Court has erred in holding that the Vendor Yakub Saheb had no right to alienate the suit property? 2) Whether the Lower Appellate Court has erred in holding that the Vendor Yakub Saheb had no right to alienate the suit property? 3) Whether under Mohamdan Law, the natural guardian of the minors had the right to alienate the share of the minors when the sale is necessary for the minors maintenance? 4) Whether the Lower Appellate Court has failed to see that in any event Exhibit A.1 was valid and binding on the share of Yakub Saheb? 12. The respondents in the above Second Appeal have filed the above C.M.P. No. 778 of 2009 to receive the transfer certificate of the second respondent as additional document. According to the respondents, the document could not be marked as exhibit before the trial Court, since all the documents were lost in transit during the year 2000, when shifting their residence. Subsequently, they applied for the transfer certificate of the second respondent afresh and they sought to file the certificate as additional document. 13. The learned counsel appearing for the respondents, relied on the following judgments in support of his submissions:- 1) K. Jayakumar (died) and two Others v. Kotesswaran and Another 2008 (5) CTC 695 2) Syed Abdul Khader v. Rami Reddy and Others AIR 1979 SC 553 : (1979)2 SCC 601 3) Ramesh Kumar v. Kesho Ram AIR 1992 SC 700 4) K.R. Mohan Reddy v. Net Work Inc. Rep. Tr. M.D. AIR 2008 SC 579 : (2008) 1 MLJ 1253 5) Sangawwa v. Shankarappa AIR 1992 Karnataka 211 The facts and circumstances of the judgments reported above differs from the case on hand. Therefore, the above judgments are not applicable to the present case. 14. The appellants, who are the respondents in the above CM.P. filed his counter. According to the appellants, the transfer certificate issued to one Yusaf, son of Yakub Saheb by the Panchayat Union Primary School, Hosur. The appellant disputed the genuineness of the certificate. Further, the transfer certificate given to a first standard student in a private school is not a public document and its authenticity is doubtful. The document is only a xerox copy of the transfer certificate. In the written statement, the age of the second respondent has been mentioned as 22 years and in the agreement of sale, his age was mentioned as 21 years. Therefore, the certificate now sought to be filed as additional document is contrary to the pleadings. The document is only a xerox copy of the transfer certificate. In the written statement, the age of the second respondent has been mentioned as 22 years and in the agreement of sale, his age was mentioned as 21 years. Therefore, the certificate now sought to be filed as additional document is contrary to the pleadings. Therefore, the appellant prayed for dismissal of the above C.M.P. 15. The counsel for the appellant, in support of his contentions, relied on the following judgments: (i) Pappayammal v. Palanisamy and Others (2005) 3 MLJ 32 : 2005 (3) CTC 292. "In the above judgment, it is held that the reasons given by the applicant, that records belonging to the year 1954 was found only at time of filling application for adducing additional evidence not accepted and applicant did not exercise due diligence at time of trial on facts found that genuineness of document was in question application dismissed." .(ii) Muthuswamy Goundar and Others v. Ramaswamy Goundar (2007) 4 MLJ 49 . "In the above, judgment it is held that no reason given for non-production of the additional evidence at the trial stage Lower Appellate Court deciding the application seeking production of additional evidence, separately Lower Appellate Court also not assigning any reason for accepting additional evidence at appellate stage Approach adopted by lower appellate Court, is contrary to law." 16. The respondent in the appeal had filed the petition in C.M.P. No. 778 of 2009 to receive the transfer certificate of the second respondent in the appeal as additional document. The said transfer certificate alleged to have been issued to the second respondent when he was studying first standard. The certificate is only a xerox copy of the transfer certificate. The reason for not producing the transfer certificate at the time of trial has not been properly explained by the respondents. Further, in their written statement, the defendant has stated that the age of the second respondent is 22 years. The said written statement was filed on 11. 1996. The transfer certificate now sought to be filed as additional document is contrary to the averments made in the written statement. Therefore, it cannot be relied on. Therefore, the C.M.P. No.778 of 2009 is dismissed. 17. The said written statement was filed on 11. 1996. The transfer certificate now sought to be filed as additional document is contrary to the averments made in the written statement. Therefore, it cannot be relied on. Therefore, the C.M.P. No.778 of 2009 is dismissed. 17. On a careful consideration of the materials available on record and the submissions made by the counsel, it could be seen that by Exhibit A-1 sale agreement dated 16. 1994, one Yakub Saheb, who is the husband of the first respondent and the father of the respondents 2 to 4 and the second respondent/second defendant entered into an agreement with the appellant/plaintiff for the sale of the suit property for a sum of Rs. 85,000/-. On the date of agreement, the said Yakub Saheb and the second respondent received a sum of Rs. 30,000/- as advance. The time for the execution of the sale deed was fixed as 6 months. 18. As per the said agreement, the said Yakub Saheb and the second respondent should execute the sale deed on receipt of the balance sale consideration of Rs.55,000/- within 6 months time. Subsequently, the said Yakub Saheb died and his legal heirs are the respondents 1 to 4. Exhibit A-2 is the Partition Deed dated 15. 1981 entered into between the family members of the respondents 1 to 4. In Exhibit A-2, the partition deed, it has been recited that Yakub Saheb shall have life interest of his share in the property till his sons attain majority and after his sons attained majority, he shall have right to alienate the property absolutely. Further, it is also recited that when the sons of the Yakub Saheb are minors, if any alienation is done during their minority, the said alienation will be invalid. 19. The learned counsel for the respondents contended that Yakub Saheb did not have right to enter into a sale agreement on behalf of the minors. From the reading of Exhibit A-2 Partition Deed, it could be seen that the G Schedule property was allotted to Yakub Saheb and his sons. It is an admitted fact that Yakub Saheb died in a months time after the execution of Exhibit A.1 Sale Agreement. He was also bed ridden for about 2 months prior to his death. From the reading of Exhibit A-2 Partition Deed, it could be seen that the G Schedule property was allotted to Yakub Saheb and his sons. It is an admitted fact that Yakub Saheb died in a months time after the execution of Exhibit A.1 Sale Agreement. He was also bed ridden for about 2 months prior to his death. The case of the appellant was that for meeting the medical expenses of the said Yakub Saheb and for maintaining his minor children, the property was sought to be sold. Further, the said Yakub Saheb did not have any other property except the suit property. Therefore, he entered into Exhibit A.1 sale agreement with the appellant for medical expenses and for maintaining the minor children. In support of the said submission, he relied on Section 362 of the Mohamedan Law which reads as follows: "362. Alienation of immovable property by legal guardian: A legal guardian of the property of a minor (S.359) has no power to sell the immovable property of the minor except in the following cases, namely .(1) Where he can obtain double its value; .(2) Where the minor has no other property and the same is necessary for his .maintenance; .(3) Where there are debts of the deceased, and no other means of paying them; .(4) Where there are legacies to be paid, and no other means of paying them; .(5) Where the expenses exceed the income of the property; .(6) Where the property is falling into decay; .And .(7) When the property has been usurped and the guardian has reason to fear that there is no chance of fair restitution." 20. From the above Section, it is clear that in the circumstances mentioned in the Section, the guardian have right to sell the properties allotted to the minors. Since Yakub Saheb entered into A1 Sale Agreement was bed ridden for some time before the execution of the agreement it is probable that he could have entered into the agreement for meeting his medical expenses and for maintaining his minor children. Since the said Yakub Saheb entered into a sale agreement for the medical expenses and for maintaining the minor children, under Section 362 of Mohamedan Law, he had right to enter into sale agreement with the appellant. 21. Since the said Yakub Saheb entered into a sale agreement for the medical expenses and for maintaining the minor children, under Section 362 of Mohamedan Law, he had right to enter into sale agreement with the appellant. 21. The learned counsel for the respondents contended that the suit, sale agreement was not executed by Yakub Saheb and the second respondent. But, on perusal of the Exhibit A-1, the sale agreement, it could be seen that stamp papers for executing the sale agreement have been purchased in the name of Yakub Saheb. The second respondent/fifth defendant was examined as D.W.2, who is also an attestor to Exhibit A1 Agreement. The scribe was examined as D.W.3. D.W.3 clearly admitted the execution of the Exhibit A-1 Sale Agreement by Yakub Saheb and the second respondent in his evidence. Since, D.W.3., the scribe, himself admitted that Exhibit A-1 Sale Agreement was executed by Yakub Saheb and the second respondent, the trial Court rightly came to the conclusion that the Exhibit A-1 Sale Agreement is true and genuine. 22. With regard to the readiness and willingness on the part of the appellant/plaintiff, it could be seen that he has specifically pleaded that he was always ready and willing to perform his part of contract and in Exhibit A-3 notice also the appellant stated that he is ready and willing to perform his part of the contract. 23. The counsel for the appellant submitted that appellant had deposited the balance sale consideration of Rs. 55,000/-before the trial Court. Therefore, this will clearly prove that appellant/plaintiff was always ready and willing to perform his part of the contract. 24. Therefore, in the above said reasons, the judgment and decree of the lower appellate Court cannot be sustained and the same is liable to be set aside. Therefore, the questions of law are decided in favour of the appellant. Accordingly, the judgment and decree of the lower appellate Court is set aside and the judgment and decree in O.S. No. 318 of 1996 is restored. The second appeal is allowed. However, there will be no order as to costs. C.M.P. No.778 of 2009 is also dismissed.