Research › Search › Judgment

Madras High Court · body

2012 DIGILAW 4477 (MAD)

V. Nagarajan v. Saroja

2012-10-30

P.R.SHIVAKUMAR

body2012
Judgment Defendants 2 to 7 in the original suit are the appellants in the second appeal. Respondents 1 and 2 filed a suit in O.S.No. 55 of 2000 on the file of the Sub-Court, Dharmapuri against Venkattaraji Naidu, the father of the appellants herein for the relief of specific performance based on the suit agreement for sale dated 03.01.2000 allegedly executed by the said Venkattaraji Naidu in favour of the plaintiffs in respect of 0.78.5 H of land comprised in S.No.259, 260/2 and 260/3 of Paruvathanahalli Village, Pennagaram Sub-Registration District and Dharmapuri Registration District. During the pendency of the suit and while a civil revision petition was pending before the High Court in C.R.P.No.321 of 2005, the sole defendant Venkattaraji Naidu died and the appellants herein were impleaded as Defendants 2 to 7 in their capacity as legal heirs of Venkattaraji Naidu. 2. The plaintiffs had made the following allegations in the plaint:- Suit property belonged to the deceased first defendant Venkattaraji Naidu. He agreed to sell the same to the plaintiffs for a sum of Rs.3,99,500/-, received a sum of Rs.5,500/-as advance and executed the suit agreement on 03.01.2000 agreeing to execute the sale deed and get it registered after getting the balance sale consideration of Rs.3,94,000/- within two months from the date of agreement. Subsequently, on 05.01.2000, the deceased first defendant received a further sum of Rs.10,000/-and passed a receipt for the payment of the same with the understanding that the same shall be adjusted towards the payment of the balance sale consideration. The plaintiffs were ready and willing to perform their part of the contract within the time stipulated in the agreement by making payment of the balance consideration of Rs.3,84,000/-and to get the sale deed executed and registered in their names. Since the deceased first defendant evaded the request made by the plaintiffs and was bent upon delaying the execution of the sale deed, the plaintiffs had to issue a legal notice on 16.02.2000 for which the deceased first defendant issued a reply on 24.03.2000 containing false and untenable allegations. Hence, the respondents/plaintiffs had to approach the Court for the relief of specific performance. Since the first defendant died on 02.06.2004 and his wife Lakshmi Ammal died on 26.10.2005, the appellants, namely Defendants 2 to 7 were impleaded and the relief sought for against the first defendant should be granted against the Defendants 2 to 7. Hence, the respondents/plaintiffs had to approach the Court for the relief of specific performance. Since the first defendant died on 02.06.2004 and his wife Lakshmi Ammal died on 26.10.2005, the appellants, namely Defendants 2 to 7 were impleaded and the relief sought for against the first defendant should be granted against the Defendants 2 to 7. 3. During his life time itself the first defendant Venkattaraji Naidu filed the written statement. Besides making general denial regarding the plaint averments, the deceased first defendant had also made the following averments:- The suit property belonged to the first defendant Venkattaraji Naidu. The same was enjoyed jointly by his children Nagarajan, Ranganathan, Ravi @ Venkatesan, Chandra, Macha Rega and Shanthi, who are the appellants herein / defendants 2 to 7. Because of his old age, the original defendant Venkattaraji Naidu allowed his children, namely defendants 2 to 7 to enjoy the property even during his life time. One Kaliappan, the husband of the first plaintiff, is employed as a Village Assistant in the Revenue Department. In the guise of getting separate patta for the properties of the first defendant, he got the signatures of the deceased first defendant in blank papers and later on with the intention of creating false records they were proclaiming that the suit properties had been purchased by them from the deceased first defendant. Hence, the deceased first defendant issued a legal notice on 04.02.2000 warning the Respondents/plaintiffs from indulging in any such activities. Pursuant to the said notice alone, the plaintiffs chose to fabricate the suit sale agreement and issued the property suit notice dated 16.02.2000 which was suitably replied by a reply notice dated 20.02.2000. The value of the property even in the year 2000 was more than Rs.10,00,000/-. In order to grab the property of the deceased first defendant, the plaintiffs had chosen to forge and fabricate the suit sale agreement and file the frivolous suit. Meanwhile the first defendant and his son Nagarajan, namely the second defendant, filed a suit on the file of the District Munsif as O.S.No.29 of 2000 against the plaintiffs and the above said Kaliappan and got an interim injunction. As such, the suit filed on the basis of the fabricated document should be dismissed with costs. Meanwhile the first defendant and his son Nagarajan, namely the second defendant, filed a suit on the file of the District Munsif as O.S.No.29 of 2000 against the plaintiffs and the above said Kaliappan and got an interim injunction. As such, the suit filed on the basis of the fabricated document should be dismissed with costs. After the death of the first defendant, the defendants 2 to 7, who got impleaded as his legal heirs, contested the suit based on the above said defence plea taken by the deceased first defendant. 4. Based on the above said pleadings of the respect parties, the learned trial Judge framed as many as four issues, which are as follows: 1. Ist true that the suit property was in joint possession and enjoyment of the first defendant and other defendants? 2. Whether the suit agreement dated 03.01.2000 is true and binding on the parties? 3. Whether the plaintiff is entitled to the reliefs sought for? 4. To what other relief? 5. In the trial, the first plaintiff Saroja figured as PW1 and one of the attestors of the suit sale agreement by name Raja was examined as PW2. 7 documents were marked as Exs.A1 to A7 on the side of the plaintiffs. Except the second defendant Nagarajan, who figured as the sole witness (DW1) on the side of the defendants, no other witness was examined and no document was produced on the side of the defendants. 6. At the conclusion of trial, the learned trial Judge, considered the respective pleadings of the parties and the evidence adduced in the suit, both oral and documentary, in the light of the points urged by the respective counsel in their arguments and upon such consideration, came to the conclusion that the suit sale agreement was genuine and that the plaintiffs were ready and willing to perform their part of the contract under the suit sale agreement and consequently decreed the suit as prayed for. 7. The said judgment and decree of the trial Court dated 31.03.2010 was challenged before the lower appellate Court, namely the Court of the Principal District Judge, Dharmapuri in A.S.No.6 of 2010. The learned Principal District Judge, Dharmapuri by his judgment and decree dated 29.03.2011, dismissed the said appeal thereby confirming the decree passed by the trial Court. 7. The said judgment and decree of the trial Court dated 31.03.2010 was challenged before the lower appellate Court, namely the Court of the Principal District Judge, Dharmapuri in A.S.No.6 of 2010. The learned Principal District Judge, Dharmapuri by his judgment and decree dated 29.03.2011, dismissed the said appeal thereby confirming the decree passed by the trial Court. Aggrieved and challenging the said decree of the appellate Court, the present second appeal has been filed. 8. The arguments advanced by Mr. S.M. Subramaniam, learned counsel for the appellants in the second appeal regarding the admission were heared and the materials placed by the appellants before the Court including the copies of the judgments and decrees of the Courts below were also perused. 9. The defendants, who suffered a decree for specific performance based on the suit sale agreement in respect of an immovable property, have come to this Court with the present second appeal after unsuccessfully prosecuting an appeal before the lower appellate Court. The case of the respondents herein/plaintiffs is very simple. It is as follows: "Venkattaraji Naidu, the father of the appellants herein, who figured as the first defendant, executed the suit sale agreement on 03.01.2000 agreeing to sell the suit property for a sum of Rs.3,99,500/-. A sum of Rs.5,500/-was paid on the date of agreement as advance. Two days after the execution of the sale agreement, the deceased first defendant got a sum of Rs.10,000/-for which a separate receipt was issued. The time for completion of the transaction was agreed between the parties to be two months. Though the respondents /plaintiffs were ready and willing to perform their part of the contract within the time stipulated in the agreement, the deceased first defendant was some how or other evading it and hence, the respondents herein/plaintiffs were constrained to file the suit after issuing a notice, which evoked a response in the form of a reply notice containing false allegations." The respondents/plaintiffs have also made necessary pleadings regarding their readiness and willingness to perform their part of the contract in compliance with the requirement of Section 16(c) of the Specific Relief Act. 10. The deceased first defendant, who was the sole defendant, contested the suit contending that his signature obtained in a blank paper had been misused for creating the suit sale agreement and the suit was filed based on a fabricated document. 10. The deceased first defendant, who was the sole defendant, contested the suit contending that his signature obtained in a blank paper had been misused for creating the suit sale agreement and the suit was filed based on a fabricated document. Though the execution of the suit sale agreement was disputed by the sole defendant in his written statement, which was adopted by the appellants herein, who are the legal representatives of the sole defendant, they have admitted the signature of the first defendant found in the suit sale agreement dated 03.01.2000, which has been produced as Ex.A1. Not only the signature found in Ex.A1, but also the signature found in Ex.A2 receipt dated 05.01.2000 evidencing the receipt of further payment of Rs.10,000/- was also admitted by the appellants/defendants. Apart from the said admission of the signatures of the deceased first defendant found in Exs.A1 and A2, the respondents herein/plaintiffs have also adduced evidence in the form of the oral testimonies of PW1, the first plaintiff and PW2-Raja, one of the attestors of Ex.A1 suit sale agreement. They have also produced the office copy of the notice, postal acknowledgement in proof of service of notice and the reply notice dated 24.03.2000 sent by the first defendant as Exs.A3, A4 and A5 respectively. The other two documents, namely patta issued on 10.10.2003 in the name of the plaintiffs and Kist receipts dated 03.01.2005, 09.01.2006, 01.01.2007 marked as Exs.A6 and A7 (series) respectively can be disregarded since they came into existence after the filing of the suit. The patta transfer seems to have taken place during the interregnum between the date on which the suit was originally decreed exparte and before the same was set aside, because of the execution of the ex parte decree. As against the said evidence in the form of testimonies of Pws 1 and 2 and Exs.A1 to A5, the defendants were content with examining the second defendant Nagarajan alone as the sole witness on their side without producing any document. Though the signature found in Ex.A1 suit sale agreement is admitted, the defendants have come forward with a story as an explanation that the husband of the first plaintiff, a Village Assistant, got the signature of the first defendant in blank papers in the guise of getting separate patta for the properties of the first defendant and used them for fabricating the suit sale agreement. Excepting the interested testimony of DW1, there is no other evidence to support the said contention of the defendants. 11. The above said stand taken by the defendants had been stoutly denied and disputed by the plaintiffs. The defendants have not furnished the particulars as to what are the properties for which separate patta was sought to be obtained, which made the first defendant put his signature in blank papers and hand over them to the husband of the first plaintiff. They have also failed to furnish the particulars of the date on which such signatures in the blank papers were made by the first defendant. On the other hand, the first defendant himself in his written statement has stated that even before the receipt of the Ex.A3 notice, the first defendant issued a notice to the plaintiffs warning them not to indulge in any propaganda that they had purchased the property from the defendants. But no proof of having sent such a notice has been produced. It has also been stated that in the year 2000 itself the deceased first defendant and the second defendant Nagarajan filed a suit in O.S.No.29 of 2000 on the file of the District Munsif, Pennagaram. But, no document regarding the said suit has been produced. What was the occasion for them to file such suit has also not been spoken to. The very fact that the deceased first defendant had taken a plea that even before the issuance of Ex.A3 notice, he issued a notice on 04.02.2000 warning the plaintiffs not to indulge in creating false records, will probablize the case of the plaintiffs that the first defendant, who was very much aware of the suit sale agreement and who was pressurised by the plaintiffs for completing the transaction within the time stipulated in the agreement, should have chose to issue such a notice as a preemptive measure, if at all such a plea of having sent notice could be true. Even the date of reply notice has been wrongly furnished in the written statement. 12. The defendants have chosen to try to take advantage of the order in which the signatures of the parties and the witnesses were obtained in Ex.A1 suit agreement. Even the date of reply notice has been wrongly furnished in the written statement. 12. The defendants have chosen to try to take advantage of the order in which the signatures of the parties and the witnesses were obtained in Ex.A1 suit agreement. The learned trial Judge and the learned appellate Judge rightly held that the execution of the suit sale agreement by the first defendant, the payment of advance on the date of Ex.A1 agreement and further payment on the date of Ex.A2 receipt were proved by the production of those documents and also by the oral testimonies of Pws 1 and 2 which had withstood the acid test of cross-examination. After holding that the plaintiffs had discharged their burden of proving execution of the suit sale agreement and passing of consideration, the Courts below have held that the burden of proving stood shifted and cast on the defendants which the defendants failed to discharge by reliable and sufficient evidence. On the way to the arrival of the said findings, the learned trial Judge and the learned appellate Judge have referred to the parts of the testimony made by DW1 to show that DW1 could not have personal knowledge of whether his father had signed any blank papers and handed over them to the husband of the first plaintiff. The learned appellate Judge has also referred to the fact that the suit sale agreement had been prepared in stamp paper and a green sheet, whereas the stand taken by the defendants was that the first defendant signed in blank white papers and handed over them to the husband of the first plaintiff. The learned appellate Judge has also referred to the fact that the 6th defendant Ravi @ Venkatesan himself was a Village Administrative Officer and the first defendant need not have approached a Village Menial (Village Assistant), namely the husband of the first plaintiff, to get separate patta for his properties which would have been accomplished with the services of his own son, namely the 6th defendant, who was a Village Administrative Office in Pennagaram itself. 13. The learned trial Judge and the learned lower appellate Judge, on proper appreciation and reappreciation of evidence, have arrived at a correct and concurrent finding that the suit sale agreement is genuine and that the payments made under Exs.A1-agreement and A2 receipt were also proved. 13. The learned trial Judge and the learned lower appellate Judge, on proper appreciation and reappreciation of evidence, have arrived at a correct and concurrent finding that the suit sale agreement is genuine and that the payments made under Exs.A1-agreement and A2 receipt were also proved. The said findings of fact based on appreciation of evidence cannot be interfered with in the second appeal unless it is shown to be perverse, in which case alone such a finding of fact will assume the character of a substantial question of law. So far as the question of readiness and willingness on the part of the respondents/plaintiffs is concerned, besides making necessary plea, they have also adduced sufficient evidence which were properly appreciated by the Courts below to arrive at a conclusion that the requirements of Section 16(c) of the Specific Relief Act have been fulfilled. It is also quite obvious that within the two months time stipulated in Ex.A1 agreement, the respondents/plaintiffs had issued the notice under Ex.A3 which evoked a negative response under Ex.A5 and immediately thereafter, the respondents/plaintiffs have approached the Court for the relief of specific performance. 14. All the aspects were considered by the Courts below in proper perspective and they have arrived at a correct conclusion that the plaintiffs were entitled to the relief of specific performance as prayed for. No defect or infirmity can be found either in the approach made by the courts below or in the findings rendered by the Courts below. No substantial question of law is proved to have involved in the second appeal. Not even a question of law is shown to have been decided erroneously by the Courts below. Of course, the decree passed by the trial Court which was confirmed by the appellate Court does not contain a direction directing the plaintiffs to make payment or deposit balance sale consideration within a time stipulated in the decree. But, learned counsel for the appellant admits that after the passing of the exparte decree and the before the same was set aside, the sale deed was executed on the deposit of the balance sale consideration. The same is the reason for the omission of specification of a time limit for the payment or deposit of the balance sale consideration. 15. The same is the reason for the omission of specification of a time limit for the payment or deposit of the balance sale consideration. 15. In view of the forgoing discussions, this Court comes to the conclusion that there is no merit in the second appeal and the same does not even merit admission and on the other hand, it deserves dismissal at the stage of admission itself. Accordingly, this second appeal is dismissed. No costs.