Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4467 (MAD)

K. Sarangapani v. K. Thangavel

2012-10-30

P.R.SHIVAKUMAR

body2012
Judgment :- The plaintiff in the original suit is the appellant in the second appeal. He had filed the suit against the respondent for the relief of specific performance based on an agreement dated 13.08.1986 alleged to have been executed by the respondent herein/defendant in favour of the appellant herein/plaintiff agreeing to convey the suit properties for a sum of Rs.16,500/-within 7 years from the date of agreement. It was the further contention of the appellant/plaintiff before the trial Court that out of the three items of suit properties, the first item belonged to one K.K.Subramania Mudaliar of Melapulam village and that he agreed to sell the same to the appellant herein/plaintiff, but since the appellant herein/plaintiff had no money at that point of time, the defendant requested the appellant/plaintiff, who is none other than his brother, to purchase the same with the understanding that the respondent/defendant should reconvey the said property to the appellant herein/plaintiff. It was also contended by the appellant herein/plaintiff before the trial Court that the suit items 2 and 3 belonged to the appellant herein/plaintiff and the same were sold to the respondent herein/defendant on 24.06.1986 with an understanding that the same would be reconveyed by the respondent/defendant to the appellant herein/plaintiff. It was also contended by the appellant herein/plaintiff before the trial Court that the suit items 2 and 3 belonged to the appellant herein/plaintiff and the same were sold to the respondent herein/defendant on 24.06.1986 with an understanding that the same would be reconveyed by the respondent/defendant to the appellant herein/plaintiff. In short, the contention of the appellant herein/plaintiff happened to be that items 2 and 3 of the suit properties originally belonged to the appellant herein/plaintiff and they were sold by the appellant herein/plaintiff under a sale deed dated 24.06.1986 to the respondent herein/defendant and pursuant to the said sale, the respondent herein/defendant was put in possession of the same; that Item No.1 of the suit properties originally belonged to one K.K.Subramania Mudaliar, who offered to sell the property to the appellant herein/plaintiff; that the appellant herein/plaintiff who did not have the funds to purchase the same, made the respondent herein/defendant to purchase the same from K.K.Subramania Mudaliar with the understanding that the properties sold by the appellant herein/plaintiff under the sale deed dated 24.06.1986 and the property purchased from K.K.Subramania Mudaliar would be reconveyed to the appellant herein/plaintiff and that in accordance with the said understanding, an agreement for reconveyance was executed by the respondent herein/defendant in favour of the appellant herein/plaintiff on 13.08.1986 undertaking to reconvey the suit properties to the appellant herein/plaintiff after getting a sum of Rs.16,500/-being the amount spent by the respondent herein/defendant towards the sale consideration and the expenditure incurred for the purchases made by him. It was the further contention of the appellant herein/plaintiff that 5 years after the execution of the suit sale agreement, he approached the respondent/defendant and asked him to execute the sale deed after receiving the consideration quoted in the agreement, but the respondent/defendant evadedthe same stating that he would execute the sale deed before the time fixed in the suit sale agreement; that since the respondent/defendant did not come forward to execute the sale deed in accordance with the terms of the sale agreement before the expiry of the period stipulated in the sale agreement, a notice was sent on 08.08.1983 which evoked no response from the respondent/defendant and that therefore, the appellant/plaintiff had to approach the Court for the relief of specific performance. 2. 2. The suit was resisted by the respondent herein/defendant by filing a written statement denying the suit agreement relied on by the appellant herein/plaintiff. The respondent herein/defendant had admitted the fact that the first item of the suit properties originally belonged to one K.K.Subramania Mudaliar and from him he purchased the same under a sale deed dated 13.08.1986 and that similarly, items 2 and 3 of the suit properties originally belonged to the appellant herein/plaintiff and the same were sold to the respondent herein/defendant under a sale deed dated 24.06.1986. The rest of the plaint allegations especially the alleged undertaking to reconvey the property purchased by him from the appellant herein/plaintiff under a sale deed dated 24.06.1986 and to reconvey the property purchased by him from K.K.Subramania Mudaliar to the plaintiff were stoutly denied by the respondent herein/defendant. He had also denied the execution of the alleged suit agreement for sale dated 13.08.1986. Denying all other allegations found in the plaint, the respondent herein/defendant prayed for dismissal of the suit. "1) Whether the suit agreement dated 13.08.1986 is genuine and valid? 2) Whether the plaintiff is entitled to the relief of specific performance directing the defendant to execute the sale deed in favour of the plaintiff in respect of the suit properties as prayed for by the plaintiff? 3) To what other reliefs the plaintiff is entitled?" werethe issues framed by the trial Court, based on which the parties went for trial. In the trial, the plaintiff besides examining himself as PW1, examined another witness as PW2 and produced the suit agreement as Ex.A1 and postal receipt to show that he sent a telegram to the defendant on 08.08.1993 as Ex.A2. The defendant figured as the sole witness (DW1) on his side and the sale deeds under which he had purchased the suit properties were produced as Ex.B1 and B2. 3. At the conclusion of trial, the learned trial Judge appreciated the evidence in the light of the arguments advanced on both sides and, upon such consideration, came to the conclusion that the suit agreement for sale had not proved by the appellant herein/plaintiff to be genuine and decided all issues against the appellant herein/plaintiff. Based on the findings, the learned trial Judge non-suited the appellant herein/plaintiff for the relief of specific performance as prayed for in the plaint. Based on the findings, the learned trial Judge non-suited the appellant herein/plaintiff for the relief of specific performance as prayed for in the plaint. The trial Court also held that the appellant herein/plaintiff was not entitled to any relief against the respondent herein/defendant. Accordingly, the learned trial Judge dismissed the suit with costs by its judgment and decree dated 29.07.2003. 4. The appellant herein/plaintiff prosecuted an appeal before the lower appellate Court in A.S.No.109 of 2006 unsuccessfully which was dismissed by the lower appellate Judge confirming the judgment and decree of the trial Court by the judgment and decree of the lower appellate Court dated 28.01.2008. The learned lower appellate Judge reappreciated the evidence and came to the conclusion that the findings of the trial Court regarding the genuineness of the suit agreement did not warrant any interference. The learned lower appellate Judge also came to the conclusion that the findings of the trial Court regarding the other issues also did not warrant any interference. By a reasoned judgment, based on which the decree of the appellate Court has been drawn up, the appeal suit was dismissed confirming the decree of the trial Court by which the suit of the appellant herein/plaintiff for specific performance had been dismissed. However, the learned appellate Judge chose to direct the parties to the appeal to bear their respective costs in the appeal. 5. Aggrieved by and challenging the decree of the first appellate Court confirming the decree of the trial Court by which the suit of the appellant had been dismissed, the present second appeal has been filed. 6. At the time of admission of the second appeal, the following questions were formulated as substantial questions of law involved in the second appeal: i) Whether the agreement dated 13.08.1986 by the defendant is not genuine one? ii) Whether the appellant herein is not entitled to the relief of specific performance? iii) Whether the agreement of sale written in the stamp paper purchased in the name of other than the appellant herein is not a valid one? iv) Whether the both Courts below rightly dismissed the suit in O.S.No.371 of 1995 and A.S.No.109 of 2006? v) Whether the Courts below held that the defendants had not executed the agreement of sale in favour of the plaintiff? 7. Based on the same, the learned counsel appearing for both parties advanced their arguments. iv) Whether the both Courts below rightly dismissed the suit in O.S.No.371 of 1995 and A.S.No.109 of 2006? v) Whether the Courts below held that the defendants had not executed the agreement of sale in favour of the plaintiff? 7. Based on the same, the learned counsel appearing for both parties advanced their arguments. This Court upon hearing the arguments advanced by Mr.M.V.Muralidaran, learned counsel for the appellant and by Mr.A.R.Gokulnath, learned counsel appearing for the respondent and after perusing the records including the judgments and decrees of the Courts below, comes to the conclusion that there is no merit in the second appeal and the same deserves to be dismissed. The reasons are as follows: i) Though as many as 5 questions have been framed at the time of admissions of the second appeal as substantial questions of law involved in the second appeal, there are duplications in them. The first question is regarding the genuineness of the suit sale agreement dated 13.08.1986 based on which the suit was filed. Question Nos.3 and 5 are nothing but duplication of question No.1. Similarly, question No.4 is duplication of question No.2. Hence, at the first instance, Question No.1 and 2 are taken into consideration. ii) The appellant herein/plaintiff and the respondent herein/defendant are brothers. The first item of suit properties originally belonged to one K.K.Subramania Mudaliar and he conveyed the property to the respondent herein/defendant under Ex.B2 sale deed dated 13.08.1986. Second and third items of suit properties were sold under Ex.B1 sale deed dated 24.06.1986 to the respondent herein/defendant by the appellant herein/plaintiff and his sons. The said sale deed was executed by the appellant herein/plaintiff for himself on behalf of his other son Karthekeyan who was then a minor. Sampath and Chandran were his major sons who signed the sale deed. It is also not in dispute that based on Exs.B1 and B2 sale deeds, the respondent herein/defendant derived title to all the three items of suit properties and he was in possession and enjoyment of the same having been put in possession on the dates of the respective sales. The title of the respondent herein/defendant in respect of the suit properties is not disputed. The title of the respondent herein/defendant in respect of the suit properties is not disputed. On the other hand, the appellant/plaintiff has approached the Court for specifically enforcing the agreement alleged to have been executed by the respondent/defendant on 13.08.1986 agreeing to reconvey the properties purchased by him under Ex.B1 from the appellant/plaintiff and his sons and the properties purchased by him under Ex.B2 from K.K.Subramania Mudaliar to the appellant herein/plaintiff for a sum of Rs.16,500/-. The stand taken by the appellant herein/plaintiff is that though he and his sons sold items 2 and 3 of the suit properties under Ex.B1 to the respondent/defendant on 24.06.1986, it was done with an understanding that the respondent/defendant should reconvey the same to the appellant herein/plaintiff on payment of the sale consideration received by the appellant/plaintiff under Ex.B1 sale deed. It is the further stand taken by the appellant herein/plaintiff that the erstwhile owner of the first item of the suit properties, namely K.K.Subramania Mudaliar, at the first instance approached the appellant herein/plaintiff for selling the same to him; that since the appellant herein/plaintiff did not have the necessary funds to purchase the same, he requested the respondent/defendant to purchase the same from the said K.K.Subramania Mudaliar on the understanding that he should reconvey the said property to the appellant herein/plaintiff on payment of the sale consideration paid by the respondent herein/defendant to his vendor; that thus the respondent/defendant got the property from K.K.Subramania Mudaliar under Ex.B2 sale deed and that on the date of the said sale deed itself, the respondent herein/defendant executed the suit agreement produced as Ex.A1. iii) The case of the respondent herein/defendant is that there was no such understanding or agreement and that the suit properties were purchased by him from K.K.Subramania Mudaliar under Ex.B2 and from the appellant herein/plaintiff and his sons under Ex.B1 on his own volition without there being any understanding for the reconveyance of the same to the appellant herein/plaintiff or anybody else. It is also the case of the respondent / defendant that suit sale agreement is not genuine. When the alleged agreement is not admitted and on the other hand is denied and disputed, the burden of the proof shall be on the person who claims the relief based on the agreement. It is also the case of the respondent / defendant that suit sale agreement is not genuine. When the alleged agreement is not admitted and on the other hand is denied and disputed, the burden of the proof shall be on the person who claims the relief based on the agreement. The agreement dated 13.08.1986 allegedly executed by the respondent herein/defendant has been produced by the appellant herein/plaintiff and marked as Ex.A1. Since the execution of the said document is not admitted and on the other hand is disputed, we have to see whether the said agreement has been proved by the appellant herein/plaintiff. In order to prove the suit agreement, the appellant/plaintiff himself figured as PW1 and examined one Kathirvel, as PW2. The defendant, who figured as the sole witness on his side, did not admit even the signature found in Ex.A1. The only other document produced by the appellant herein is a postal receipt to show that a telegraphic notice was sent to the respondent herein/defendant. The same will not render any assistance to the appellant herein/plaintiff to prove the genuineness of Ex.A1 agreement. Therefore, the available evidence are the oral testimonies of Pws 1 and 2. iv) Besides containing a number of contradictions, their evidence will show that the case of the appellant herein/plaintiff, regarding the execution of the said suit agreement is improbable. The appellant herein/plaintiff, along with sons had sold the second and third items of suit properties under Ex.B1 on 24.06.1986 to the respondent/defendant and admittedly the respondent/defendant was put in possession of the said items of suit properties. Though the appellant/plaintiff would contend that there was an understanding for the reconveyance of the property sold under Ex.B1, no reconveyance deed was executed on the date of sale deed itself; nor was there any clause incorporated in the sale deed itself for the reconveyance. Roughly about 1 ½ months after the date of Ex.B1, the respondent/defendant purchased Item No.1 of the suit properties from K.K.Subramania Mudaliar under Ex.B2. Roughly about 1 ½ months after the date of Ex.B1, the respondent/defendant purchased Item No.1 of the suit properties from K.K.Subramania Mudaliar under Ex.B2. The appellant herein/plaintiff, who contends that the said K.K.Subramania Mudaliar offered the property to be sold to the appellant herein/plaintiff and since the appellant herein/plaintiff did not have the funds to purchase the same, he asked his brother, namely the respondent herein/defendant to purchase it from K.K.Subramania Mudaliar on the understanding that later on he would reconvey the same to the appellant herein/plaintiff, has not chosen to examine the said K.K.Subramania Mudaliar to prove the above said contention. The appellant herein/plaintiff himself figured as a witness for the sale deed Ex.B2. v) Ex.A1 suit agreement is alleged to have been executed on the same day on which Ex.B2 sale deed was executed. But curiously the stamp paper used for preparing Ex.A1 agreement was not purchased on the date of the agreement. A stamp paper which had been purchased on 30.04.1984 itself, that too, not in the name of a party to the agreement but in the name of one Ganesan of Dharmanidhi had been used for preparing Ex.A1 agreement. Apart from the question of propriety of using a stamp paper purchased in the name of another person not a party to the document, there is absence of reliable evidence adduced on the side of the appellant herein/plaintiff to show Ex.A1 was executed by the respondent herein/defendant on 13.08.1986. There are lot of contradictions in between the testimonies of Pws 1 and 2. While referring to the sale of Items 2 and 3 to the respondent/defendant under Ex.B1, the plaintiff as PW1, has stated in his testimony that the sale consideration cited in the sale deed was Rs.8000/- and that on the date of the sale itself the agreement for reconveyance was executed by the respondent/defendant. It is quite contrary to what is found in Ex.B1. Ex.B1 is dated 24.06.1986, whereas Ex.A1 suit agreement is dated 13.08.1986. Therefore, it is quite obvious that both the documents could not have been executed on one and the same day. It is quite contrary to what is found in Ex.B1. Ex.B1 is dated 24.06.1986, whereas Ex.A1 suit agreement is dated 13.08.1986. Therefore, it is quite obvious that both the documents could not have been executed on one and the same day. The fact that the plaintiff as PW1, has chosen to state that the sale deed executed by him in favour of the defendant and the reconveyance deed based on which the suit was filed were executed on one and the same day will throw the foremost suspicion on the genuineness of Ex.A1 agreement. vi) The sale consideration recited in Ex.B1 is Rs.2,600/-. The evidence of PW1 is contrary to the same. According to his testimony, the sale deed was executed for a sum of Rs.8,000/-. It is not the evidence of PW1 that the actual market price for which it was sold was Rs.8000/-, but a lessor amount was quoted in the sale deed for the purpose of stamp duty. On the other hand, PW1 made a categorical statement that the sale deed recited the figure Rs.8000/- as the sale consideration for which the sale was made. The same is found to be incorrect. The next discrepancy in his evidence is that the defendant agreed to reconvey the property sold under Ex.B1 on payment of a sum of Rs.8,000/- to the appellant/plaintiff within 7 years from the date of the said sale. The appellant herein/plaintiff, without stopping there, went further and stated in his evidence that two months prior to the expiry of the period of 7 years agreed to between the parties for reconveyance, he approached the defendant and offered to pay a sum of Rs.8,000/-. The sale agreement, namely Ex.A1 recites the consideration to be Rs.16,500/-. The evidence of PW1 is that he took Rs.8000/-and offered to pay the same for reconveyance of the properties. The same provides yet another contradiction making the case of the appellant herein/plaintiff still more improbable. vii) The plaintiff's evidence as PW1 is that Items 2 and 3 were sold by him and his sons to the defendant for a sum of Rs.8,000/-. Item 1 of the suit properties was purchased by the respondent under Ex.B2 for a sum of Rs.9,500/-. If both the figures are added, the sale consideration itself would come to Rs.17,500/-. vii) The plaintiff's evidence as PW1 is that Items 2 and 3 were sold by him and his sons to the defendant for a sum of Rs.8,000/-. Item 1 of the suit properties was purchased by the respondent under Ex.B2 for a sum of Rs.9,500/-. If both the figures are added, the sale consideration itself would come to Rs.17,500/-. If it is so, it is highly improbable that the defendant would have agreed to sell the suit properties for a price lesser than the amount for which he had purchased. Ex.A1 agreement recites a sum of Rs.16,500/-as the consideration for reconveyance. The recital goes further to state that the said amount would account for the sale consideration paid by the defendant and also the expenditure incurred by him. The calculation does not tally. In this regard also the case of the appellant/plaintiff seems to be highly improbable. viii) If we take the evidence of PW2, it will make the improbability of the plaintiff's case still stronger. One Kathirvel has been examined as PW2. It should be noted that he was not even an attestor of Ex.A1 agreement. A.Ganesan and M.Murugesan are shown to be the attestors of Ex.A1 agreement. Curiously none of those two persons was examined as a witness on the side of the appellant herein/plaintiff. The said Murugesan and Ganesan are the other attestors of Ex.B2 sale deed under which Item No.1 of the suit properties was purchased by the defendant on 13.08.1986. According to the testimony of PW2, Ex.A1 agreement was executed on the same date on which Ex.B2 sale deed was executed. Of course, it is true that Ex.A1 agreement is dated 13.08.1986, the date on which the sale under Ex.B2 took place. It is the evidence of PW2 that the stamp paper for the suit agreement was purchased by the appellant herein/plaintiff on the date of agreement itself. As pointed out supra, the stamp paper used for preparing Ex.A1 had been purchased more than two years prior to the date of Ex.A1, that too, in the name of one Ganesan and not in the name of either the appellant herein/plaintiff or the respondent herein/defendant. The case of the appellant herein/plaintiff is that the entire A and B schedule properties were agreed to be sold for a sum of Rs.16,500/-under Ex.A1. The case of the appellant herein/plaintiff is that the entire A and B schedule properties were agreed to be sold for a sum of Rs.16,500/-under Ex.A1. But the evidence of PW2 is quite contrary that if the appellant herein/plaintiff paid a sum of Rs.16,500/-, the defendant should reconvey half of the property to the appellant herein/plaintiff. xi) Even with regard to the date on which the consensus and understanding was arrived at for the reconveyance of the property, the evidence of PW2 defers from that of PW1 and also from the plaint averments. According to PW1's evidence, the agreement came to be executed on the date of Ex.B1 sale deed. That will take us to 24.06.1986. But Ex.A1 agreement bears the date 13.08.1986. PW2 would say that 20 days after the defendant purchased the property under Ex.B2 from K.K.Subramania Mudaliar, the negotiations for reconveyance took place in which the agreement was reached. The same would show that Ex.A1 agreement could not have been executed on the dates of Ex.B2 sale. PW2 would also say that after a lapse of one month and 20 days from the date on which the defendant purchased the property from K.K.Subramania Mudaliar, the appellant herein/plaintiff approached the defendant for the reconveyance of the same to the appellant herein/plaintiff for which the defendant refused. A consideration of the evidence of PW2 would show that he is not a trustworthy witness and he has ventured to oblige his long standing friend, namely the appellant herein/plaintiff. Ex.A1 was written on a single stamp paper. It has not been written as a bilateral agreement. On the other hand, it has been prepared as a unilateral undertaking insofar as the appellant herein/plaintiff has not signed the agreement as a party to it. In addition, it is also pertinent to note that no prudent man will agree for reconveyance for the same price after 7 years and the very fact that 7 years period has been cited as the time for completion of the transaction in Ex.A1 will make the same improbable. No notice was sent calling upon the defendant to execute the sale deed in accordance with Ex.A1 sale agreement prior to the filing of the suit. On the other hand, the appellant herein/plaintiff has chosen to produce Ex.A2 to show that defendant was put on notice and still he failed to respond. No notice was sent calling upon the defendant to execute the sale deed in accordance with Ex.A1 sale agreement prior to the filing of the suit. On the other hand, the appellant herein/plaintiff has chosen to produce Ex.A2 to show that defendant was put on notice and still he failed to respond. It is the case of the appellant herein/plaintiff that a telegraphic notice was sent and the defendant did not reply. Ex.A2 does not contain the name of the person who booked the telegram and the name of the addressee to whom the telegram was sent. It should also be noted that the receipt had been issued at a Post Office in Bangalore. The contents of the telegram are not proved by producing a certified copy obtained from the Postal Department. No proof of delivery of such telegram has been produced. All these aspects were considered by the trial Court as well as the apellate Court and upon such consideration, both the courts below have rendered a finding of fact that the suit sale agreement Ex.A1 is not genuine and the same has not been proved. The said finding of fact cannot be termed perverse to give room for interference in this second appeal. Hence, the said finding deserves confirmation. x) In view of the above, this Court comes to the conclusion that the concurrent finding of the courts below that the suit sale agreement dated 13.08.1996 produced as Ex.A1 is not genuine and hence the appellant herein/plaintiff is not entitled to the relief of specific performance does not require any interference by this Court in the second appeal and the questions framed as substantial questions of law No.1 and 2 are answered accordingly. The consideration of the other three questions is not necessary because of the above said finding regarding the Question Nos.1 and 2. For all the reasons stated above, this Court comes to the conclusion that there is no merit in the second appeal and the same deserves to be dismissed. Accordingly, the same is dismissed with costs. Consequently, the connected miscellaneous petitions are closed.