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2014 DIGILAW 3337 (MAD)

Sarojammal v. S. Gopisrinivasalu

2014-09-16

S.RAJESWARAN, S.VAIDYANATHAN

body2014
Judgment S. Rajeswaran, J. 1. The above appeal has been preferred against the judgment and decree of the learned Additional District Judge, Fast Track Court No.1, Chengalpattu, in OS No.85/2007 dated 30.01.2012. The defendant in OS.No.85/2007 filed on the file of the learned Principal District Judge, Chengalpattu, is the appellant before this Court. 2. The respondent herein, as plaintiff, filed a suit in OS.No.85/2007 for the following reliefs:- “13. The plaintiff values the relief sought for at Rs.86,41,000/- and pays a court fee of Rs.6, 48, 076/- under section 42[a] and section 27 [c] of TNCF Act. The plaintiff therefore, prays for a decree for specific performance: [a] Directing the defendants execute and registered the sale deed in his favour in respect of the suit lands and put him in possession thereof. [b] Granting permanent injunction restraining the defendant her men agents from creating any encumbrance upon the suit lands. [c] Awarding the suit cost to him.” 3. For the sake of convenience, the parties herein are referred to as per their rankings in the suit. 4. The plaint averments are as follows:- [a] The defendant executed a sale agreement on 16.11.2006 in favour of the plaintiff agreeing to sell the suit schedule lands at the rate of Rs.15,000/- per cent along with the well and service connection thereon. The total sale consideration is for a sum of Rs.86,40,000/-. On 16.11.2006 itself, the defendant received a sum of Rs.9,00,000/- in cash as advance. [b] The defendant handed over the photocopies of the documents and agreed to produce the original title deeds at the time of registration of sale deed. [c] As per the sale agreement dated 16.11.2006, the balance of sale consideration of Rs.77,40,000/- has to be paid on or before 15.02.2007. On 23.11.2006, the plaintiff paid a further sum of Rs.6,00,000/- to the defendant and the same was also acknowledged by the defendant. The plaintiff brought the balance sale consideration in cash three times from Andhra Pradesh to the defendant's residence. But, she evaded the same with an evil intention to demand more money. [d] The plaintiff has always been ready and willing to perform his part of the agreement. But the defendant has been evading her part of sale agreement under one pretext or the other. But, she evaded the same with an evil intention to demand more money. [d] The plaintiff has always been ready and willing to perform his part of the agreement. But the defendant has been evading her part of sale agreement under one pretext or the other. [e] The plaintiff sent a lawyer's notice dated 30.01.2007, calling upon the defendant to receive the balance sale consideration and to execute the sale deed. The defendant neither replied nor responded, even though she managed to evade the notice. The plaintiff has got sufficient funds which is known to the defendant. [f] Finally, the defendant volunteered to execute the sale deed and as per her instructions, the plaintiff was waiting at the office of the Sub Registrar, Tirukazhukundram, on 12.02.2007 from the morning itself. He has also kept the sale deed ready drafted on the stamp papers for Rs.35,000/-. The defendant had come with her son Annadurai and demanded Rs.4,00,000/- for executing the sale deed. As it was refused by the plaintiff, she left for her village and the plaintiff had to go back to Chennai and remitted the amount in his Savings Bank Account with the Karur Vysya Bank, Valasaravakkam. [g] The attitude of the defendant makes it very clear that she wants more money and from 22.02.2007 onwards she has been bringing in land brokers to the suit land with a view to alienate her lands to third parties. [h] When the plaintiff was in Chennai on 24.02.2007, his brother at Ongole, Andhra Pradesh received a notice dated 14.02.2007 sent by the defendant along with a caveat. In the notice dated 14.02.2007, she has alleged that the suit schedule property is a joint family property and she has been coerced to execute a sale deed. The plaintiff sent a suitable reply and thereafter, filed the suit for the aforesaid reliefs. 4. The defendant contested the suit by filing the written statement. As per the averments contained in the written statement, it is stated that the suit properties do not belong to her exclusively. They are acquired out of the joint family funds. At the time of purchase, her husband was employed in Government service and therefore, the properties were purchased in her name for the benefit of the joint family. She is entitled to 1/9th share in the property. Similarly, her husband and the children are entitled to 1/9th share each. 5. They are acquired out of the joint family funds. At the time of purchase, her husband was employed in Government service and therefore, the properties were purchased in her name for the benefit of the joint family. She is entitled to 1/9th share in the property. Similarly, her husband and the children are entitled to 1/9th share each. 5. Two lands brokers by name Ponnan and Anbu approached the defendant for the sale of the suit property and introduced the plaintiff as a prospective buyer. The defendant's daughter and sons are all married and they are all living separately in different places. Her husband who is a retired Government servant is always under the influence of alcohol. When the brokers were informed that without the consent of the other joint family members, the property could not be sold, they used honey quoted words and said that they are not in a hurry and once the consent is obtained from the other joint family members, the proceedings would go on. By their words and assurance, they induced the defendant to sign the papers which were already typed. She was not aware of the contents and the nature of the document and her signatures were obtained in coercion. 6. When the plaintiff and his brokers were informed that the defendant's husband and the children were not willing to sell the property and asked them to take back the money already advanced, the plaintiff refused to receive the money from the defendant and insisted that the defendant should execute the sale deed. Only at that time, she realized that the plaintiff played fraud in collusion with the land brokers taking advantage of her ignorance and illteracy. 7. According to the defendant, the agreement of sale is illegal, invalid and unenforceable. She has not consented to the agreement and her signatures were obtained in collusion, undue influence and fraud. Further, she has no right to alienate the suit property without the consent of the other joint family members. 8. The defendant issued a notice to the plaintiff on 14.02.2007 after coming to know about the evil design of the plaintiff. The plaintiff issued a reply containing false averments. Further, she has no right to alienate the suit property without the consent of the other joint family members. 8. The defendant issued a notice to the plaintiff on 14.02.2007 after coming to know about the evil design of the plaintiff. The plaintiff issued a reply containing false averments. On 19.02.2007, a partition took place by a registered document between the defendant, her husband and her children whereby the properties have been divided amicably into six shares for six persons and others were given cash in lieu of shares. The partition has been accepted and acted upon. Therefore, the defendant is entitled to get back the money paid to her only. Hence, she prayed for the dismissal of the suit. 9. On the above said pleadings, the following issues were framed by the Trial Court:- [1] Whether the plaintiff is entitled to the relief for specific performance as prayed for in the suit? [2] Whether the plaintiff is entitled to the relief of injunction as prayed for? [3] To what relief if any? Thereafter, the Trial Court framed the additional issues which are as follows:- [1] Whether the suit properties do not belong to the defendant exclusively? [2] Whether the suit properties were purchased by the husband of the defendant in her name from out of joint family funds and savings? [3] Whether the defendant is entitled to 1/9th share in the suit properties? [4] Whether the sale agreement dated 16.11.2006 is illegal, invalid and unenforceable? [5] Whether each sharer has become exclusive owner of the properties alleged to the term respectively under the partition deed dated 19.02.2007? 10. On the plaintiff's side, the plaintiff and the other two witnesses were examined as PW1 to PW3 and 13 documents were marked as Exhibits A1 to A13. On the side of the defendant, the defendant was examined as DW1 and 18 documents were marked as Exhibits B1 to B18. 11. After going through the averments, the evidences let in by both parties, the Trial court came to the conclusion that the suit properties belong to the defendant exclusively and the same are not joint family properties as contended by the defendant. The Trial Court also ignored the partition Deed [Ex.B8] as the same was executed on 19.02.2007 and therefore, it is a sham and nominal partition deed. The Trial Court also ignored the partition Deed [Ex.B8] as the same was executed on 19.02.2007 and therefore, it is a sham and nominal partition deed. The Trial Court also found that the plaintiff was ready to pay the balance sale consideration on 12.02.2007, but, the defendant refused to execute the sale deed which was already prepared and kept ready by the plaintiff. Thus, the suit was decreed as prayed for by the Trial Court and aggrieved by the same, the defendant has filed the above appeal before this Court. 12. We have heard Mr. S.V. Jeyaraman, learned Senior Counsel appearing for the appellant/defendant and the learned counsel appearing for the respondent/plaintiff. We have also gone through the documents including the oral and documentary evidences let in by both the parties. 13. After hearing the arguments and after going through the pleadings, evidences let in, the following issues arise for consideration before this Court? [1] Whether the sale agreement dated 16.11.2006 is legal? [2] Whether the plaintiff is ready and willing to perform his part of the agreement? [3] Whether the plaintiff is entitled to the relief for specific performance of the sale agreement? [4] Whether the plaintiff is entitled to the decree of permanent injunction as prayed for? [5] Whether the suit properties are joint family properties and as such, the plaintiff could not have entered into the sale agreement dated 16.11.2006? [6] Whether the partition deed [Ex.B8] is a sham and nominal document and to be ignored? 14. The sale agreement dated 16.11.2006 was marked as Ex A1 on the side of the plaintiff. A perusal of the same would show that it is an unregistered document and the same was executed by the defendant as the First Party and the plaintiff as the Second Party, for purchasing the suit schedule properties/lands for a total sum of Rs.86,40,000/-. The time stipulated thereon for completing the contract was in three months, which means, the plaintiff should pay the entire amount to the defendant on or before 15.02.2007. On the day of executing the sale agreement itself, a sum of Rs.9 lakhs was paid by the plaintiff to the defendant and the same was also acknowledged by the defendant. The time stipulated thereon for completing the contract was in three months, which means, the plaintiff should pay the entire amount to the defendant on or before 15.02.2007. On the day of executing the sale agreement itself, a sum of Rs.9 lakhs was paid by the plaintiff to the defendant and the same was also acknowledged by the defendant. It is further stipulated therein if the plaintiff did not pay the balance sale consideration and get the sale deed executed on or before 15.02.2007, the plaintiff would lose 10% of the advance amount of Rs.9 lakhs and also the right to get the sale deed executed. It is further stated in the sale agreement that the plaintiff as the First Party agrees for executing the sale deed for the Government Guideline value of the property at the time of registration. This sale deed was signed by both the parties in the presence of the two witnesses and one of the witnesses is K.Annadurai who is none other than the son of the defendant. 15. In the light of the above, we fail to understand the defence taken in the trial court by the defendant, stating that she did not know anything and she was coerced and induced to sign the sale agreement without knowing its contents. Further, her statement that all her children are living elsewhere and here husband is a alcoholic and therefore, she is a victim of circumstances is also unbelievable and liable to be rejected. 16. Even in her cross-examination, the defendant as DW1 admitted that she received a sum of Rs.9 lakhs from the plaintiff. She further admitted that her son Annadurai signed as a witness in the sale agreement. She also admitted that she received another sum of Rs.6 lakhs a week thereafter and even at that time, her another son K.Parthiban signed as a witness. In such circumstances, it is not open to the defendant to disown the agreement as the same has been obtained in coercion as claimed by the defendant. Hence, we are to conclude that the sale agreement dated 16.11.2006 [Ex.A1] is legal and enforceable and the trial court has also correctly adverted to the issue. 17. In such circumstances, it is not open to the defendant to disown the agreement as the same has been obtained in coercion as claimed by the defendant. Hence, we are to conclude that the sale agreement dated 16.11.2006 [Ex.A1] is legal and enforceable and the trial court has also correctly adverted to the issue. 17. Once a sale agreement proved to be legal and enforceable, the most important issue that arises for consideration is whether the plaintiff is ready and willing to perform his part of the agreement, irrespective of what has been stated in the written statement and the defence taken by the defendant. 18. The payment of Rs.9 lakhs on 16.11.2006 at the time of executing the sale agreement is admitted by the defendant herself and one of the attesting witnesses to the sale agreement is none other than the defendant's own son. Similarly, the payment of Rs.6 lakhs on 23.11.2006 is also admitted by the defendant and this time, the attesting witness was her another son. Enough averments are therein the plaint stating that the plaintiff is ready and willing to perform his part of the sale agreement by tendering the balance amount. In fact, a notice dated 30.01.2007 was sent by the plaintiff to the defendant calling upon her to receive the balance and to complete the sale transaction. This notice was marked as Ex.A2. A perusal of Ex.A2 would show that the plaintiff has called upon the defendant to receive the balance amount of Rs.71,40,000/- and complete the sale transaction on or before 15.02.2007. It is further stated therein that if the defendant could inform about her convenient date on or before 15.02.2007, it would enable the plaintiff to come there from Andhra Pradesh with cash to complete the registration. After the typed portion of Ex.A2, it was written in hand of the advocate who sent the notice stating that the plaintiff met the defendant on 30.01.2007 by coming from Ongole, Andhra Pradesh, but the defendant made lame excuses to delay the registration, which is not fair. Below the above said hand written portion, the schedule was also written in hand by the advocate. 19. The learned senior counsel for the appellant took strong exception to this handwritten portion in the notice by contending that it is only an after-thought interpolation and therefore, the same should be ignored. Below the above said hand written portion, the schedule was also written in hand by the advocate. 19. The learned senior counsel for the appellant took strong exception to this handwritten portion in the notice by contending that it is only an after-thought interpolation and therefore, the same should be ignored. He also pointed out that this very important event of the plaintiff meeting the defendant on 31.01.2007, was not typed in the main portion of the first page of the notice and therefore, according to him, is an act of interpolation to create a picture as if the plaintiff was ready and willing to perform his part of the contract. 20. We are unable to accept the submissions made by the learned senior counsel for the simple reason that the plaintiff has got time upto 15.02.2007. Even assuming and admitting the submissions made by the learned senior counsel for the sake of argument, still it does not make any material change, as even in the notice dated 30.01.2007, what has been stated by the plaintiff is to receive the balance and to execute the sale deed and also to inform a date on or before 15.02.2007 so that he could bring the balance in cash from Ongole, Andhra Pradesh. 21. This notice dated 30.01.2007 was not received by the defendant and therefore, the plaintiff's counsel sent a letter to the postal department asking for the fate of the notice dated 30.01.2007. The Senior Superintendent of RMS [CT] Division, Tiruchirappalli sent a reply dated 20.03.2007 to the lawyer stating that the notice sent on 31.01.2007 addressed to Sarojammal/the defendant was returned by the Destination Post Office on 10.02.2007 with a remark “not found, returned to Central”. From this, it is very clear that the plaintiff really sent Ex.A2 to the defendant calling upon her to be ready on or before 15.02.2007 to receive the balance amount and to execute the sale deed. 22. Further, the plaintiff averred that he was waiting at the SRO, Thirukazhukundram on 10.02.2007 from morning itself for registration of the sale deed which was also prepared on the stamp papers valuing R.35,000/-. He further stated that the defendant came with her son, but, she demanded more money which was refused by him. Thereafter, the defendant left the place and the plaintiff came to Chennai and remitted the cash in his bank account. 23. He further stated that the defendant came with her son, but, she demanded more money which was refused by him. Thereafter, the defendant left the place and the plaintiff came to Chennai and remitted the cash in his bank account. 23. To prove the aforesaid averments, apart from examining himself [plaintiff] as PW1, the plaintiff also examined one Thiru Ponnan as PW3 who belongs to the very same locality of the defendant. He also spoke about this incident in his oral evidence. Further, the plaintiff marked the bank statement as Ex.A5 which would show that the plaintiff on 15.02.2007 had deposited a sum of Rs.50 lakhs and the three cheques deposits, each amounting to Rs.11,50,000/-, Rs.6 lakhs and another Rs.6 lakhs respectively. All these evidences, viz., the deposition of PW1, deposition of PW3, Ex.A2 viz., the notice dated 30.01.2007, the postal department's letter dated 20.03.2007 [Ex.A3], the sale deed dated 12.02.2007 [Ex.A4] which was made ready by the plaintiff on stamp papers and the Ex.A5 which is the pass book entries of the plaintiff's bank account would definitely establish that the plaintiff had sufficient money and he has been ready and willing to perform his part of the contract. The trial court has also gone into this issue correctly and held in favour of the plaintiff. 24. Once it is established that the sale agreement is proved and the plaintiff is not at fault for the non-execution of the sale deed, then, it goes without saying that a right will accrue to the plaintiff to get a specific performance decree from this court. Therefore, this issue is decided in favour of the plaintiff and he is definitely entitled to get a specific performance decree from this Court. 25. As all the above said three issues have been held in favour of the plaintiff, if a permanent injunction is not granted restraining the defendant and her men from creating any encumbrances upon the suit land, it will definitely complicate the issue by bringing in third party interest and making the execution proceedings onerous. Hence, the plaintiff is entitled to the decree of permanent injunction also as prayed for. 26. Insofar as the issue of the nature of the properties are concerned, though it has been contended by the plaintiff that they are the joint family properties, curiously not even an iota of evidence was let in to prove the same. Hence, the plaintiff is entitled to the decree of permanent injunction also as prayed for. 26. Insofar as the issue of the nature of the properties are concerned, though it has been contended by the plaintiff that they are the joint family properties, curiously not even an iota of evidence was let in to prove the same. Further, we have already held that the sale agreement dated 16.11.2006 is valid and enforceable. In fact, in the sale agreement [Ex.A1], it has been clearly stated that the properties belong to her absolutely which she purchased on her own. One of the attesting witnesses in Ex.A1 is her own son. If only the property is a joint family property and if only she has got 1/9th share in it, her son would not have come forward to be a witness for Ex.A1. Therefore, this contention is only an after thought to put a spoke in the wheel of enforcing the sale agreement. Therefore, it cannot be said that the properties are joint family properties and we agree with the trial court on this issue also. 27. The only evidence that was let in by the defendant to prove the property as a joint family property were the original partition deed dated 19.02.2007 [Ex.B8], the original correction deed dated 02.04.2007 [Ex.B9], six pattas dated 01.08.2007 in the names of the joint family members [Ex.B10 to Ex.B15] and the Kist Receipt dated 03.03.2008 [Ex.B16]. 28. It is not in dispute that all these documents came into existence after Ex.A2, as rightly pointed by the trial court. Even otherwise, these documents are subsequent to the sale agreement dated 16.11.2006 [Ex.A1]. Once the sale agreement is held to be legal and enforceable, the subsequent documents are subject to the subsisting sale agreement only. Further, from the conduct of the defendant, it is proved that these documents were executed only for the purpose of defeating the rights of the plaintiff. Therefore, the trial court is absolutely right in holding that these documents are sham and nominal and the same could not be considered. 29. Even though a number of judgments have been referred to and relied upon by both the counsel appearing on either side, it is not necessary to take into consideration those judgments, as the appeal could be decided on its own merits and on its own facts and circumstances. 30. 29. Even though a number of judgments have been referred to and relied upon by both the counsel appearing on either side, it is not necessary to take into consideration those judgments, as the appeal could be decided on its own merits and on its own facts and circumstances. 30. Thus, after re-appreciating the entire evidence, we find that we are in entire agreement with the judgment and decree passed by the trial court and accordingly, the same is upheld and consequently, the appeal is dismissed. Consequently, connected miscellaneous petitions are dismissed. 31. The respondent is entitled to cost of the appeal.