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2015 DIGILAW 2180 (MAD)

Chinnasellan v. Santha

2015-06-08

PUSHPA SATHYANARAYANA

body2015
JUDGMENT : 1. The plaintiff, who got a decree before the trial Court, viz., District Munsif, Krishnagiri, by judgment and decree dated 12.07.2006 in O.S. No. 166 of 1995, which was set aside by the lower Appellate Court, viz., Principal Subordinate Judge, Krishnagiri, in A.S. No. 82 of 2006 vide judgment and decree dated 13.11.2008, has projected the instant Second Appeal. 2. According to the plaintiff, who claims to be the original owner of the suit lands, on 10.9.1993, he executed a sale deed in favour of the defendant conveying the suit lands for a consideration of Rs.11,000/- on her promise that she would execute an agreement deed to reconvey the suit lands on payment of the amount within a period of three years. It is stated that the plaintiff also paid a sum of Rs.10/- towards advance and the defendant agreed that on payment of the balance sale consideration of Rs.10,990/- on or before 10.9.1996, she shall execute the sale deed conveying the suit schedule land in his favour and accordingly, she executed a reconveyance agreement deed on 10.09.1993 itself. The main allegation of the plaintiff is that though he was ready to pay the balance sale consideration amount of Rs.10,990/- even in the month of March 1995 and despite his attempt on several occasions, the defendant was not prepared to execute the sale deed in his favour. The plaintiff also issued a notice dated 15.5.1995 calling upon the defendant to execute the sale deed and since the defendant did not turn up, he filed the suit for specific performance of the contract. 3. Resisting the suit, the defendant filed written statement denying all the allegations mentioned in the plaint. According to the defendant, she purchased the suit schedule property on 10.9.1993 and registered the sale deed in her name and she was in possession of the suit property from the date of sale deed. Denying the re-conveyance agreement alleged to have been entered into between her and the plaintiff, she prayed for dismissal of the suit. 4. Before the trial Court, the plaintiff examined himself as P.W.1 besides examining one Duraisamy as P.W.2 and marked Exs.A.1 to A.3. To nullify the case of the plaintiff, the defendant examined herself as D.W.1 and examined one more witness as D.W.2 and marked Exs.B.1 to B.9. 5. 4. Before the trial Court, the plaintiff examined himself as P.W.1 besides examining one Duraisamy as P.W.2 and marked Exs.A.1 to A.3. To nullify the case of the plaintiff, the defendant examined herself as D.W.1 and examined one more witness as D.W.2 and marked Exs.B.1 to B.9. 5. The trial Court, after adduction of evidence by both the parties, accepting the plea of the plaintiff that the defendant is liable to re-convey the suit property, came to the conclusion that the plaintiff is entitled to specific performance of the agreement of sale and accordingly, decreed the suit. On appeal by the defendant, the Lower Appellate Court reversed the decree on the finding that the execution of document has not been proved and allowed the appeal. Feeling aggrieved, the plaintiff has come up with the present Appeal. 6. Heard Mr. P. Mani, learned counsel appearing for the appellant / plaintiff and Mr. V. Nicholas, learned counsel for the respondent / defendant and perused the records. 7. The question involved in the instant appeal is whether Ex.A.1 is an agreement to re-convey or mortgage by conditional sale. 8. From the facts narrated above, it is clear that it is not a mortgage by conditional sale as neither Ex. A.1 nor Ex. B.7 contained such a clause. When such a condition is not embodied in the document, the transaction shall not be deemed to be a mortgage. The definition of mortgage by a conditional sale postulates the creation by transfer of a relation of mortgagor and mortgagee the price being changed on the property conveyed. However, in a sale with an agreement to re-convey, there is no relationship of debtor and creditor. Nor is the price changed upon the property conveyed. But the sale is subject to an obligation to re-transfer the property within the period specified. The relationship of debtor and creditor is the only distinction and the transfer being a security for the debt. 9. In a case of outright sale, a condition of re-conveyance is embodied. But in the present case on hand, there is no condition of re-conveyance. The plaintiff only claims the same under Ex. A.1 which is stoutly denied by the defendant. There is no clause or condition that the defendant will be entitled to only usufruct, that is the income from the suit property and that on repayment of loan, the property will be re-conveyed. 10. The plaintiff only claims the same under Ex. A.1 which is stoutly denied by the defendant. There is no clause or condition that the defendant will be entitled to only usufruct, that is the income from the suit property and that on repayment of loan, the property will be re-conveyed. 10. Though the documents Exs.A.1 and B.7 are admittedly alleged to have been executed on the same date, there is no convincing reason given by the plaintiff as to why Ex. A.1 was not registered whereas Ex. B.7 was registered. However, it is to be noted that the defendant had disputed his signature in Ex. A.1 and denied the execution of the same. Even assuming that the execution of Ex. A.1 is true, it is to be seen whether the appellant / plaintiff has proved the condition of Section 16 of the Specific Relief Act. 11. Learned counsel appearing for the appellant / plaintiff contended that Ex. A.1 agreement is to be taken as proved as one of the attestors, viz., P.W.2, had been examined and the Lower Appellate Court has wrongly proceeded as if the plaintiff had not proved the execution of Ex. A.1. 12. The above contention of the learned counsel for the appellant is only to be rejected. In this regard, it would be relevant to refer to the deposition of P.W.2, who is the brother-in-law of the plaintiff and has admitted that Ex. A.1 was not registered. The further admission of P.W.2 during his cross-examination reads as under:- (“Tamil”) 13. As per Ex. B.7, it is seen that the sale is an outright sale and there is no mention about the debt. There is also no condition for re-conveyance. If the sale was executed by the appellant / plaintiff only with an intention to get it re-conveyed, then there is no necessity for him to deliver the parent documents to the respondent / defendant. In this regard, it would be useful to advert to the evidence of P.W.1, who has deposed in the cross examination as follows:- (“Tamil”) 14. The next contention of the learned counsel for the appellant / plaintiff is that re-conveyance does not require registration as the same is not mandatory. 15. In this aspect, the Lower Appellate Court had elaborately considered the evidence of P.W.1 and held that Ex. A.1 is not an agreement to re-convey. The next contention of the learned counsel for the appellant / plaintiff is that re-conveyance does not require registration as the same is not mandatory. 15. In this aspect, the Lower Appellate Court had elaborately considered the evidence of P.W.1 and held that Ex. A.1 is not an agreement to re-convey. It is pertinent to point out that when Ex. A.1 is denied and disputed by the respondent / defendant, the appellant / plaintiff ought to have taken steps to prove the same in the manner known to law. In the absence of proof of execution, it is to be held that Ex. A.1 is not proved. 16. Even on the question of readiness and willingness, it is admitted by the appellant / plaintiff in the plaint as well as in the evidence that he could mobilize the balance sale consideration only during March 1995. The Lower Appellate court also had found that the plaintiff’s evidence in that regard is not trustworthy. To show the readiness and willingness, the appellant / plaintiff ought to have deposited the balance sale consideration into Court under Section 16 of the Specific Relief Act which mandates that the discretionary relief of specific performance of the contract can be granted only in the event of the plaintiff not only makes necessary pleadings but also establishes that he had all along been ready and willing to perform his part of contract. Unlike the case of a suit for specific performance, here what is sought for, is a decree for specific performance to re-convey the suit property. In the plaint, what is stated in paragraph 7 is that the cause of action for the suit arose on 10.9.1993 when the defendant agreed to re-convey the suit property. 17. Learned counsel for the appellant / plaintiff also placed reliance on the decision of this Court in Pachaippan and others vs. S.P. Koon Mari [ 1996 (2) MLJ 378 ] and more particularly, referred to paragraph 11 of the judgment, which reads as follows:- “... In the case of a sale with an agreement for reconveyance, the property is sold by the vendor, in order to get over a financial crisis. In the case of a sale with an agreement for reconveyance, the property is sold by the vendor, in order to get over a financial crisis. The agreement for reconveyance of the said property at the same price at which it was sold after a certain period would itself show that the parties agreed that there was no permanent transfer of ownership and in the event of the vendor paying the amount of consideration within a particular date, his ownership would be restored. It has been repeatedly held that the sale and the agreement of reconveyance form part of one transaction. It has been construed to be an option to the vendor and an undertaking by the purchaser that he would execute a deed of reconveyance in the event of the exercise of the option by the vendor within the stipulated period. That is why it has been held that time is the essence of the contract of reconveyance and if the period lapsed, the vendor would lost the right to get back the property.” 18. The above case is not applicable to the facts of the present case as the conveyance and agreement of re-conveyance are in a single document, ie., sale with an agreement for re-conveyance. In the present case, Ex. B.7 is an outright sale and Ex. A.1 is an agreement to re-convey which is not proved. Besides, the intention of the appellant / plaintiff was only for an outright sale and the same is evident from the fact that the parent deeds of the suit property were handed over to the respondent / defendant on the date of sale itself. 19. Hence, the basis of prayer is the refusal to re-convey the property. When the document Ex. B.7 is silent about any loan transaction or even the re-conveyance, I am of the opinion that the suit has to be dismissed. The Lower Appellate Court had analysed the evidence properly and dismissed the suit by giving cogent reasons. In such circumstance, this Court is of the view that the decision of the Lower Appellate Court reversing the decision of the trial Court, does not call for interference. 20. It is a settled principle that scope for interference with the finding of fact while exercising jurisdiction under Section 100 CPC is very limited. In such circumstance, this Court is of the view that the decision of the Lower Appellate Court reversing the decision of the trial Court, does not call for interference. 20. It is a settled principle that scope for interference with the finding of fact while exercising jurisdiction under Section 100 CPC is very limited. Since the Lower Appellate Court, being the final fact finding authority, has held that the plaintiff is not entitled to the relief sought for, and this being a Second Appeal filed under Sec.100 C.P.C. against the said judgment, no question of law, much less, substantial question of law would arise for consideration. There are no error of jurisdiction or law or perversity on the face of the judgment of the Lower Appellate Court warranting interference of this Court. In view of the above discussions relating to principles under Section 100 CPC, I have no hesitation to hold that no interference is warranted to the finding of the Lower Appellate Court and the same has to be upheld. For the foregoing reasons, the Second Appeal fails and the same stands dismissed confirming the judgment and decree of the Lower Appellate Court. However, in the circumstances of the case, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is closed.