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2009 DIGILAW 5575 (MAD)

Tamilselvi v. Gangasalam & Others

2009-12-14

R.BANUMATHI

body2009
Judgment This Second Appeal has been preferred against the concurrent findings of Courts below dismissing Plaintiffs suit for Specific Performance. Unsuccessful Plaintiff is the Appellant. .2. Case of Plaintiff is that she entered into an agreement of sale Ex.A1 [23.09.1999] with Defendants 1 and 2 in respect of suit property – S.No.87/1 – 1.20 acres out of 9.80 acres for a sum of Rs.50,000/- and Plaintiff paid an advance of Rs.48,000/-. Further case of Plaintiff is that Defendants 1 and 2 committed breach of contract in refusing to honour the agreement of sale which necessitated the Plaintiff to file suit for Specific Performance. 3. In the Courts below, Defendants 1 and 2 who executed Ex.A1 agreement of sale remained exparte. 4. Defendants 3 to 5 who purchased the suit property under Exs.B1 to B3 [212. 1999] resisted the suit contending that Defendants 1 and 2 have sold the suit property under three sale deeds infavour of Defendants 3 to 5. Further case of Defendants 3 to 5 is that Defendants 1 and 2 in collusion with Plaintiff had concocted the suit agreement to sell and filed the suit for Specific Performance. Defendants 3 to 5 claimed that they are in possession of the suit property and that Plaintiff is not entitled to the relief of Specific Performance. 5. On the above pleadings, five Issues were framed in the trial Court. Plaintiff Tamilselvi was examined as PW1 and one Rajamurthy, Narayanaswamy and Mayavel who signed as witnesses in the suit agreement were examined as PWs.2 to 4 respectively and Village Administrative Officer [Rajamani] of Boothamur was examined as PW5. Exs.A1 to A5 were marked. On the side of contesting Defendants 3 to 5, 4th Defendant Natarajan was examined as DW1 and witnesses in the sale deeds viz., Mahalingam and Rajendran were examined as DWs.2 and 3 and Exs.B1 to B6 were marked. 6. Upon consideration of oral and documentary evidence, trial Court held that Plaintiff has not proved her readiness and willingness to get the sale deed executed. Defendants 1 and 2 being brothers of Plaintiffs husband Gunasekaran, trial Court took the view that Ex.A1 agreement was between the close relatives which raises serious doubts about genuineness of Ex.A1 agreement and that only to defeat the rights of Defendants 3 to 5, Ex.A1 agreement was brought into existence and on those findings, trial Court dismissed Plaintiffs suit. .7. Defendants 1 and 2 being brothers of Plaintiffs husband Gunasekaran, trial Court took the view that Ex.A1 agreement was between the close relatives which raises serious doubts about genuineness of Ex.A1 agreement and that only to defeat the rights of Defendants 3 to 5, Ex.A1 agreement was brought into existence and on those findings, trial Court dismissed Plaintiffs suit. .7. Being aggrieved by dismissal of suit, Plaintiff filed an appeal in A.S.No.19/2004 before Principal District Court, Cuddalore. Lower Appellate Court held that having paid most part of sale consideration, there was no impediment for the Plaintiff to get the sale deed and absolutely there was no reason for delay in getting the sale deed executed. .Lower Appellate Court pointed out that attestors to Ex.A1 [PWs.2 to 4] are close relatives and with the help of close relatives, Ex.A1 agreement of sale was brought into existence to defeat the lawful claim of purchasers – Defendants 3 to 5. .8. Aggrieved by the concurrent findings, unsuccessful Plaintiff filed this Second Appeal. Second Appeal was admitted on the following substantial questions of law:- .i) Whether in law the Courts below are right in holding that Exhibit A.1 agreement was not true and valid when the document had been proved by examining the attestors, satisfying Section 68 of the Evidence Act? ii) Whether in law the Courts below are not wrong in finding that the respondents 3 to 5 are bona fide purchasers for value? 9. Onbehalf of Appellant, Ms.Hema Sampath, learned Senior Counsel submitted that having paid major part of sale consideration, Plaintiff was always ready and willing to get the sale deed executed which was not kept in view by the Courts below. It was further submitted that PWs.2 to 4 attestors to Ex.A1 agreement have consistently spoken about execution of agreement of sale and fact that PWs.2 to 4 being relatives to Plaintiff cannot be put up against the Plaintiff. Taking me through the evidence, learned Senior Counsel would further submit that Courts below arrived at conclusion by extraneous considerations of relationship of parties and such other aspects warranting interference by the High Court. 10. Ms.R.Radha, learned counsel for Respondents 3,4,7 to 13 submitted that Ex.A1 agreement of sale between Plaintiff and her close relatives [Defendants 1 and 2] being an unregistered one was rightly negatived by Courts below. 10. Ms.R.Radha, learned counsel for Respondents 3,4,7 to 13 submitted that Ex.A1 agreement of sale between Plaintiff and her close relatives [Defendants 1 and 2] being an unregistered one was rightly negatived by Courts below. Learned counsel would further submit that having paid most part of sale consideration, absolutely there was no reason for the Plaintiff in not getting the sale deed executed. Taking me through various sale deeds Exs.B1 to B3 infavour of Defendants 3 to 5, learned counsel would submit that having purchased the property under Exs.B1 to B3 [212. 1999] Defendants 3 to 5 are bonafide purchasers for value. It was further argued that Plaintiff has not produced any evidence showing that she was ready and willing to perform her part of contract. .11. Uncontroverted facts are that Plaintiffs husband Gunasekaran and Defendants 1 and 2 are brothers. They are sons of Kaliyaperumal. Suit property is S.No.87/1 – 1.20 acres. There was partition in the family of Kaliyaperumal and each of them were allotted 1/4th share in the family properties. Admittedly, suit property S.No.87/1 – 1.20 acres was settled infavour of Defendants 1 and 2 even before partition. 4th Defendant [Natarajan] purchased 40 cents under Ex.B1 sale deed [212. 1999] from Defendants 1 and 2. 3rd Defendant [Ranganathan] purchased 40 cents under Ex.B2 sale deed [212. 1999] from 2nd Defendant-Arunachalam. 5th Defendant [Jayaraman] purchased 40 cents from 1st Defendant-Gangasalam under Ex.B3 sale deed [212. 1999]. 12. Ex.A1 agreement of sale was for Rs.50,000/- and most part of sale consideration of Rs.48,000/- was paid to Defendants 1 and 2. Two months time was stipulated for getting the sale deed executed. As pointed out by the lower Appellate Court, balance sale consideration was only a meagre sum of Rs.2000/- and there is no reason for delay in taking the sale deed. When Plaintiff and Defendants 1 and 2 are closely related, absolutely there was no impediment for getting the sale deed executed. 13. Defendants 1 and 2 are brothers of Gunasekaran, husband of Plaintiff. When Plaintiff and Defendants 1 and 2 were closely related and when most part of sale consideration was said to have been paid, there was no necessity for the parties to enter into an agreement of sale. As held by the Courts below, reasonable doubts arise as to bonafide of Ex.A1 agreement. When Plaintiff and Defendants 1 and 2 were closely related and when most part of sale consideration was said to have been paid, there was no necessity for the parties to enter into an agreement of sale. As held by the Courts below, reasonable doubts arise as to bonafide of Ex.A1 agreement. If at all Defendants 1 and 2 wanted to sell the suit property infavour of Plaintiff having received most part of sale consideration, they could have then and there sold the suit property infavour of Plaintiff on 23.09.1999 itself or immediately within a couple of days or weeks. 14. As pointed out earlier, two months time is stipulated in Ex.A1 agreement for performance of contract. Within two months, Plaintiff has not chosen to issue any notice calling upon the Defendants to execute the sale deed. Sec.16(c) of Specific Relief Act enacts statutory requirement for averment in the plaint and Plaintiff was required to prove the same that she has always been ready and willing to perform the essential terms of contract which are to be performed by her. .15. The most important issue to be decided in a suit for Specific Performance is whether the Plaintiff who came to Court for enforcing the agreement, had been ready and willing .to perform his part of the contract. The mandate of Section 16(c) of Specific Relief Act is pre-emptory and the issue will be always undertaken for strict scrutiny irrespective of whether the Defendant appears or not or, whether the readiness and willingness is put to issue by a specific contention, by the Defendants or not. 16. Two months time stipulated under Ex.A1 expires on 211. 1999. Absolutely, there is no evidence to show that what was the steps taken by the Plaintiff to perform her part of contract between 23.09.1999 and 211. 1999. Suit was filed on 12.04.2000. Absolutely, there is no evidence showing readiness and willingness of Plaintiff to perform her part of contract between 211. 1999 and 12.04.2000. 17. Exs.B1 to B3 sale deeds [212. 1999] were executed infavour of Defendants 3 to 5 only after expiry of two months time stipulated under Ex.A1 agreement. 1999. Suit was filed on 12.04.2000. Absolutely, there is no evidence showing readiness and willingness of Plaintiff to perform her part of contract between 211. 1999 and 12.04.2000. 17. Exs.B1 to B3 sale deeds [212. 1999] were executed infavour of Defendants 3 to 5 only after expiry of two months time stipulated under Ex.A1 agreement. Plaintiff being close relative of Defendants 1 and 2 must have known about the sale transaction between Defendants 1 and 2 with Defendants 3 to 5; but Plaintiff has not chosen to raise any protest either by issuing notice or by filing protest Petition before the concerned Sub-Registrar. Inaction of Plaintiff raises serious doubts about Ex.A1 agreement of sale. 118. Courts below observed that Defendants 1 and 2 being close relatives to Plaintiff, brought into existence Ex.A1 agreement of sale. Learned Senior Counsel would further submit that evidence would show contra that Defendants 1 and 2 were sailing with Defendants 3 to 5. Learned Senior Counsel for Appellant submitted that Courts below erred in arriving at conclusion on extraneous considerations not concerned with essential terms of contract. 4th Defendant [Natarajan] examined himself as DW1. In his evidence, DW1 has stated that on receipt of summons, on 20.4.2000 Defendants 1 to 5 signed in the same Vakalat for engaging the same counsel. One of the witness [Rajendran] to Exs.B1 to 3 sale deeds was examined as DW3 has also stated that he was brought to the Court by Defendants 1 and 2 who deposed onbehalf of Defendants. Drawing Courts attention to the above oral evidence, learned Senior Counsel submitted that in the light of the above evidence, relationship of Defendants 1 and 2 to Plaintiff cannot be put against the Plaintiff and while so, Courts below erred in acting upon such extraneous factors like relationship. 119. The above contention does not merit acceptance. In his evidence, DW1 has stated that after they came to know that Defendants 1 and 2 are sailing with Plaintiff, they have separately engaged a counsel. Relationship of Plaintiff with Defendants 1 and 2 cannot be ignored and it certainly has bearing in deciding the Issues. There is no force in the contention that Courts below acted upon extraneous considerations like relationship of Plaintiff with Defendants 1 and 2. 120. Suit Survey Number is 87/1 – 1.20 acres with Electric Motor Pumpset and thatched house therein. Relationship of Plaintiff with Defendants 1 and 2 cannot be ignored and it certainly has bearing in deciding the Issues. There is no force in the contention that Courts below acted upon extraneous considerations like relationship of Plaintiff with Defendants 1 and 2. 120. Suit Survey Number is 87/1 – 1.20 acres with Electric Motor Pumpset and thatched house therein. In his evidence DW1 [4th Defendant] has stated that pursuant to Exs.B1 to B3 sale deeds, they are in possession of the suit property. Plaintiff cannot claim to be in possession of the suit property. PW5-VAO of Boothamur has stated that Plaintiff and her family members are in possession of the suit property and that Plaintiffs husband Gunasekaran is cultivating Sugarcane crops in S.No.87/1. PW5-VAO was not in a position to answer as to who pays kist for the suit property. In his evidence, PW2Rajamurthy, uncle of Plaintiff has stated that Defendants 1 and 2 are in possession of the suit property in S.No.87/1 – 1.20 acres. Evidence of PW2 that Defendants 1 and 2 are in possession of the suit property goes against the case of Plaintiff. Pointing out discrepancy in evidence, Courts below rightly negatived Plaintiffs plea of being in possession of the suit property. 121. Upon analysis of facts and evidence adduced, Courts below rightly held that reasonable doubts arise as to genuineness of Ex.A1 agreement of sale. Defendants 3 to 5 are bonafide purchasers for value. Plaintiff having not proved the essential ingredients of Sec.16(c) of readiness and willingness to get the sale deed executed, Courts below rightly declined equitable relief of Specific Performance. Concurrent findings of Courts below do not suffer from any serious infirmity warranting interference. 122. In the result, the Judgment of the lower Appellate Court in A.S.No.19/2004 dated 27.03.2006 on the file of Principal District Court, Cuddalore is confirmed and the Second Appeal is dismissed. In the circumstances of the case, there is no order as to costs.