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2012 DIGILAW 668 (MAD)

Ganesan v. Rajamanickam

2012-02-08

T.RAJA

body2012
Judgment :- 1. The present Second Appeal is filed as against the judgment and decree passed by the learned Subordinate Judge, Panruti made in A.S.No.6 of 2006 dated 13.09.2006, whereby the judgment and decree dated 18.08.2005 in O.S.No.24 of 1998 passed by the learned District Munsif, Panruti, was reversed. 2. The suit was filed to pass a decree for specific performance of the agreement dated 30.01.1996, in favour of the plaintiff/appellant herein as against the defendant/respondent herein. It was further prayed to direct the defendant to execute the sale deed in pursuance of the agreement dated 30.01.1996, within the time fixed by the Court and on the failure of the defendant the Court may execute the sale deed in respect of the suit property, in favour of the plaintiff. 3. This Court, at the time of entertaining the second appeal, has framed the following substantial questions of law:- (a) Whether in law the Lower Appellate Court was right in dismissing the suit even after holding that Ex.A.1 sale agreement was true by holding that the purchaser had not proved the vendor's title overlooking that section 13 of the Specific Relief Act provides for such contingency? (b) Whether in law, the lower appellate Court was not wrong in failing to see that under Section 43 of the Transfer of Property Act, title had passed to the vendor on his wife's death? (c) Whether in law the lower appellate Court was right in overlooking that the respondent's wife and her sister, the alleged owners and attested Ex.A.1 agreement knowing fully well its contents and its ramification vide 85 LW112 DB. 4. Though the matter was argued by the learned counsel appearing for the appellant on the following dates viz., on 09.01.2012 and 11.01.2002, in spite of the notice served on the sole respondent, no one appeared. 5. The case of the plaintiff/appellant is that the plaintiff/appellant herein viz., Ganesan has entered into an agreement of sale on 30.01.1996 with one Rajamanickam, the defendant/respondent herein for purchasing the suit property for a sum of Rs.11,000/-. The defendant/respondent herein also agreed to sell the suit property in favour of the plaintiff for a sum of Rs.11,000/-. In pursuance of the said oral agreement, they have also entered into a written agreement of sale dated 30.01.1996. The defendant/respondent herein also agreed to sell the suit property in favour of the plaintiff for a sum of Rs.11,000/-. In pursuance of the said oral agreement, they have also entered into a written agreement of sale dated 30.01.1996. The plaintiff/appellant herein has paid the advance amount of Rs.10,000/- out of Rs.11,000/- towards the total sale consideration of the suit property and the balance amount of Rs.1,000/-was agreed to be paid within three years from the date of agreement. After the execution of the sale agreement, when the defendant/respondent herein refused to receive the balance sale consideration of Rs.1,000/-, that was kept to meet out the expenses for registration of the sale deed, the plaintiff/appellant herein issued a notice dated 19.01.1998 through Advocate calling upon the defendant to execute the sale deed by expressing his readiness and willingness to pay the balance sale consideration of Rs.1,000/-. But, the defendant refused to receive the notice and therefore, the plaintiff/appellant herein has filed the suit for specific performance of the contract dated 30.01.1996. 6. It is the further case of the plaintiff/appellant herein before this Court that the defendant is the brother of Kiliammal, who is mother of Arumbu ammal, wife of the defendant. Kiliammal was owning 7-1/2 cents of land and she was also having three daughters viz., Arumbu ammal, Silambayee and Chinnayee. Kiliammal, who is the sister of defendant and mother of Arumbu ammal, Silambayee and Chinnayee has given 3-1/2 cents to Chinnayee, the third daughter of Kiliammal and she was keeping with her the balance 4 cents of land. It is also the case of the plaintiff/appellant herein that the second daughter of Kiliammal viz., Silambayee, sister in law of defendant also died issueless, therefore, the balance 4 cents of land has been jointly possessed and enjoyed before the death of Silambayee by Arumbu ammal and Silambayee daughters of Kiliammal. During the trial, proper evidences were adduced on the side of the appellant/plaintiff to prove the case that after the execution of sale agreement dated 30.01.1996 between the plaintiff and defendant, the daughters of Kiliammal viz., Arumbu ammal and Silambayee were also party to the sale agreement Ex.A1, because they have signed the sale agreement, agreeing to sell the suit land in favour of the plaintiff. But, unfortunately, when the suit was filed, both Arumbu ammal and Silambayee were not alive. But, unfortunately, when the suit was filed, both Arumbu ammal and Silambayee were not alive. However, the scribe P.W.2, who was examined by the plaintiff, in support of his case before the trial Court has also admitted the fact that the defendant's wife Arumbu ammal and her sister Silambayee after signing the sale agreement Ex.A1 dated 30.01.1996 unfortunately died and the signatures found in the sale agreement Ex.A1 have shown that the said Arumbu ammal, Silambayee and Murugan, who is son of Arumbu ammal, have signed the sale agreement. On that basis, the trial Court, gave a finding that the sale agreement Ex.A1 dated 30.01.1996 has been duly executed by the defendant/the respondent herein, who is none other than the husband of Arumbu ammal and brother in law of Silambayee and and accordingly accepted the sale transaction and decreed the suit as prayed for in favour of the plaintiff. The plaintiff/appellant has also deposited the balance sale consideration of Rs.1,000/- before the trial Court. Therefore, the plaintiff/appellant has discharged all the obligations and expressing his readiness and willingness. Therefore, as rightly decreed by the trial Court, the defendant is bound to execute the sale agreement. But, on appeal by the defendant/respondent herein before the first appellate Court, the first appellate Court has reversed the said conclusion differing with the finding of the trial Court on the basis that the suit property ad-measuring 4 cents of land, for which the sale agreement was entered into between the plaintiff and defendant, does not belong to the defendant. Since the plaintiff/appellant herein has failed to find out at the time of entering into the sale agreement, the suit property belongs to the defendant/respondent herein it held that granting decree in favour of the plaintiff was also not sustainable, on that basis, the first Appellate Court reversed the judgment and decree of the trial Court. 7. Assailing the said finding, the learned counsel appearing for the appellant submitted that the trial Court has properly appreciated the evidence and finally found that Kiliammal, mother of late Arumbu ammal, Silambayee and Chinnayee, was in possession and enjoyment of 7-1/2 cents of land and after giving 3-1/2 cents in favour of her daughter Chinnayee, the balance 4 cents of land was in possession and enjoyment of other daughters viz., late Arumbu ammal and late Silambayee. But, before their demise both Arumbu ammal and Silambayee daughters of Kiliammal have also agreed to execute the sale of the suit property ad-measuring 4 cents of land in favour of the plaintiff. On that basis, they have also signed the sale agreement Ex.A.1 dated 30.01.1996. When the trial Court has also considered this aspect that, in any event, the 4 cents of land to be enjoyed by Arumbu ammal and Silambayee have agreed to execute the sale deed in favour of the plaintiff through the defendant, the said facts also were properly established by evidence of P.W.2, who was a scribe, by deposing that at the time of executing the sale agreement, both Arumbu ammal and Silambayee have signed the sale agreement by giving their approval for sale, therefore finding of the first appellate Court that the said land was not belonging to the defendant cannot be the subject matter of the suit for specific performance is required to be interfered with. 8. As submitted by the learned counsel appearing for the appellant, even on the date of executing the sale agreement on 30.01.1996, the said Kiliammal mother of Arumbu ammal and Silambayee was not alive. Secondly, Kiliammal mother of Arumbu ammal, Silambayee and Chinnayee was owning 7-1/2 cents land, that was also admitted that 3-1/2 cents of land have already been given to the share of Chinnayee, the daughter of Kiliammal. While so, the 4 cents of land was jointly in possession and enjoyment of the other two daughters viz., Arumbu ammal and Silambayee and the said Silambayee also died issueless. During their life time the said Arumbu ammal and Silambayee after giving 3-1/2 cents to their sister Chinnayee, they were also in possession and enjoyment of 4 cents of land. Therefore, the said Arumbu ammal and Silambayee daughters of Kiliammal having signed the sale agreement Ex.A1 dated 30.01.1996 and this fact having been properly brought before the Court and properly supported by the evidence adduced by P.W.2 scribe, the case of the plaintiff that the suit property belonged to the defendant who is the husband of late Arumbu ammal has been sufficiently established. In that view of the matter, as the appellate Court has not considered these real facts that the suit property originally belongs to Kiliammal and her daughters and after the death of Arumbu ammal and Silambayee, it has come to the hands of the defendant and these aspects have not been properly taken into consideration, infirmity committed by the appellate court is required to be interfered with by this Court by setting aside the judgment and decree passed by the first appellate Court by answering the substantial questions of law in favour of the appellant. 9. The yet another reason for interfering with the impugned judgment and decree passed by the first appellate Court is also required to be dealt with herein. Even after the execution of sale agreement Ex.A1 dated 30.01.1996, when the village panchayat was held at the instance of the plaintiff, the defendant has also appeared before the village panchayat and also agreed to repay a sum of Rs.20,000/-. This aspect has also been properly dealt with by the trial Court by holding that unless the plaintiff has repaid a sum of Rs.10,000/-as sale consideration, he would not have agreed before the village panchayat for payment of Rs.20,000/-. Further, the defendant as against his own admission, has not even come forward to pay the agreed amount of Rs.20,000/-. The relevant deposition given by the defendant is extracting here under:- (TAMIL) 10. The above admitted facts go to the root of matter that the suit is liable to decreed. That apart, the Apex Court in the case of RATTAN DEV Vs. PASAM DEVI reported in (2002) 7 Supreme Court Cases 441, has held that "the first appellate Court is bound to apply its mind to all the evidence available on record and then test the legality of the findings arrived at by the trial Court. While doing so the first appellate court could have taken the factum of the non-examination of the plaintiff also into consideration." In the present case by applying the above principles, if we look at the finding given by the first appellate Court, it shows that the first appellate Court has committed serious error in not properly applying his mind in the evidence recorded before the trial Court. Therefore, the non application of mind by the appellate Court to other materials facts, though available, and consequent failure of the appellate Court to discharge its judicial application, did raise a question of law having a substantial impact on the rights of the parties, and therefore, the second appeal deserved to be allowed. 11. In the result, the second appeal is allowed and the decree and judgment dated 13.09.2006 made in A.S.No.6 of 2006 passed by the learned Subordinate Judge, Panruti is hereby set aside. Consequently, connected M.P is closed. There is no order as to costs.