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2017 DIGILAW 1037 (MAD)

C. Padmanabhan (died) v. S. P. Natarajan Chettiar

2017-04-12

C.V.KARTHIKEYAN

body2017
JUDGEMENT : The Defendant in OS.No.46 of 1998 on the file of the Subordinate Judge, Devakottai, aggrieved by the judgement and decree dated 6.7.1999 has filed this appeal. 2. During the pendency of the appeal, the sole appellant had died and his legal representatives had been brought on record. The suit in OS.No.46 of 1998 had been filed by the Respondent herein, seeking specific performance of agreement of sale, dated 21.2.1996 and for further directions to register the sale deed on receipt of balance sale consideration of Rs.1,00,000/- and for possession of the suit property. The suit property has been described in the plaint as follows:- “SCHEDULE OF PROPERTY xxx” 3. In the plaint, it had been mentioned that the Defendant was the absolute owner of the above mentioned property and had purchased the same by a registered sale deed dated 2.11.1979. He had offered to sell the property for a total sale consideration of Rs.4 lakhs and in pursuance of the same, an agreement of sale was entered into on 21.2.1996. An advance of Rs.75,000/- was also paid by the Plaintiff through cheque no.384192 drawn on State Bank of India, Karaikudi Branch and another sum of Rs.2,25,000/- was paid by cash. The balance sale consideration was Rs.1,00,000/-. The time granted for performance of the agreement was one year. 4. It is the case of the Plaintiff that he had been requesting the Defendant to execute the sale deed. He was insisting upon performance of the agreement and to avoid the same, the Defendant had issued a notice dated 27.12.1996, stating that there were many transactions with the Plaintiff and his sons and that the Defendant had signed blank white papers, blank stamp papers, blank forms, blank cheques and blank promissory notes. It had been stated that the Defendant had discharged the debts due to the Plaintiff. When he called upon the Plaintiff to return the signed papers, the Plaintiff had prepared the agreement of sale. The Plaintiff had issued a reply notice dated 20.1.1997, insisting upon performance of the agreement of sale. A rejoinder was received on 7.2.1997. The Plaintiff stated that he is always ready and willing to perform his part of the agreement and consequently, since the Defendant had failed to execute the sale deed, the suit had been filed for the reliefs as stated above. 5. A rejoinder was received on 7.2.1997. The Plaintiff stated that he is always ready and willing to perform his part of the agreement and consequently, since the Defendant had failed to execute the sale deed, the suit had been filed for the reliefs as stated above. 5. In the written statement, the Defendant, who is the Appellant herein had stated that he had signed in blank papers and blank stamp papers and consequently denied that he had entered into an agreement of sale with the Plaintiff. He denied that a consideration of Rs.4 lakhs was fixed. He denied receipt of advance of Rs.75,000/- and Rs.2,25,000/-. He denied that the Plaintiff had been requesting performance of the sale agreement. It had been stated that the sons of the Plaintiff by name Krishnamurthy and Sathyamurthy, had transactions with the Defendant and the Defendant had borrowed monies from them. At that time, he had to sign blank papers, blank stamp papers and blank forms and cheques and promissory notes. He had issued a notice dated 27.12.1996, calling upon the Plaintiff to return the papers. In the reply notice dated 20.1.1997, the Plaintiff had stated that there was an agreement of sale. This was denied by a rejoinder notice dated 7.2.197. It had been stated that the suit property is not a vacant site and there was a school functioning in the suit property. It had been stated that Sankarapuram Panchayat had been collecting taxes and there was also electricity connection. It had been stated that a school by name Chidambaram Visalachi English School was being run from 1993. It had been therefore stated that the agreement of sale was a forged document and consequently, the suit should be dismissed. 6. On consideration of the rival pleadings, the court below had framed the following issues:- 1. Whether the Plaintiff is entitled to a decree of specific performance? 2. Whether the suit is maintainable? 3. Whether the agreement of sale dated 21.2.1996 is true? 4. To what other reliefs the Plaintiff is entitled to? 7. The parties went to trial. On the side of the Plaintiff, three witnesses were examined. The Plaintiff examined himself as PW.1 and examined one Ramalingam as PW.2 and Nagaraj as PW.3. The Plaintiff had marked Ex.A1 to Ex.A8. 3. Whether the agreement of sale dated 21.2.1996 is true? 4. To what other reliefs the Plaintiff is entitled to? 7. The parties went to trial. On the side of the Plaintiff, three witnesses were examined. The Plaintiff examined himself as PW.1 and examined one Ramalingam as PW.2 and Nagaraj as PW.3. The Plaintiff had marked Ex.A1 to Ex.A8. These included the agreement of sale dated 21.2.1996 as Ex.A1, the notice issued by the Defendant dated 27.12.1996 as Ex.A2, the reply issued by the Plaintiff dated 20.1.1997 as Ex.A3, the rejoinder by the Defendant dated 7.2.1997 as Ex.A4, the copy of the sale deed in favour of the Defendant with respect to suit property dated 2.11.1979 as Ex.A5, the encumbrance certificate as Ex.A6, the order of the Tahsildar, Karaikudi issued to the Defendant, dated 12.6.1996 as Ex.A7 and the patta in the name of the Defendant dated 13.9.1995 as Ex.A8. 8. The Defendant had examined himself as DW.1 and marked Ex.B1 to Ex.B12. These included the acknowledgement cards for receipt of notices by the Collector and the Superintendent of Police as Ex.B1 to Ex.B4, the copy of the order dated 26.10.1994 as Ex.B5, the letter from Sathyam Chit Funds, dated 10.5.1994 and 8.8.1994 as Ex.B6 and Ex.B7, the documents relating to electricity connection as Ex.B8, Ex.B9 and Ex.B11, the property tax receipt as Ex.B10 and the salary register for the staff of the school as Ex.B12. 9. During the trial, an Advocate Commissioner had been appointed to inspect and note down the physical features of the suit property and his report was marked as Ex.C1 and the rough sketch of the suit property was marked as Ex.C2. On consideration of the oral and documentary evidence, the court below decreed the suit, granting specific performance of the agreement dated 21.2.1996 and had also held that the suit is maintainable and the suit was decreed with costs. Hence, the Defendant came before this court, by way of this appeal. As stated above, pending the appeal, the Defendant, who is the sole Appellant died and his legal representatives were brought on record as the Appellants 2 to 8. 10. Hence, the Defendant came before this court, by way of this appeal. As stated above, pending the appeal, the Defendant, who is the sole Appellant died and his legal representatives were brought on record as the Appellants 2 to 8. 10. The primary point to be determined in this appeal is as to whether the parties herein had entered into the agreement of sale dated 21.2.1996 or whether as claimed by the Appellant, there were loan transactions between the parties and utilising the blank signed papers, the Respondent herein had created the agreement of sale. The additional point to be decided is as to whether the suit property is a vacant land as claimed by the Respondent in the suit or whether there is an existing school by the Appellant in the said place. 11. Before this court, the learned counsel for the Appellant urged the court to accept the contention that the agreement of sale had been fabricated by utilising blank papers which had been signed by the Appellant and handed over to the Respondent at the time of borrowing loan amounts and during other money transactions. It was further contended that the description of the property in the plaint does not mention well, trees, which are existing in the suit property and which indicate that the Respondent had not actually seen the suit property before the agreement of sale was entered into and consequently this also is a factor to hold that the agreement of sale Ex.A1 is not binding on the Appellant. It was further pointed out that even if it is to be admitted, the sum of Rs.3 lakhs is said to have been paid as advance and it is very surprising that the possession or title deeds were not handed over and this also indicates that the agreement of sale was not actually entered into between the parties. It had been finally contended that since there is a school which is running in the suit property and since grant of relief in a suit for specific performance is discretionary in nature, the court should exercise its discretion and hold in favour of the Appellant. 12. The above contentions were refuted by the learned counsel for the Respondent. It had been finally contended that since there is a school which is running in the suit property and since grant of relief in a suit for specific performance is discretionary in nature, the court should exercise its discretion and hold in favour of the Appellant. 12. The above contentions were refuted by the learned counsel for the Respondent. The learned counsel pointed out that the Appellants had admitted the signature in Ex.A1 and consequently, the burden of proving that the signature was appended in blank papers was heavily on the Appellant and it was pointed out that such burden had not been discharged. The learned counsel further pointed out that the Respondent had examined as PW.2 A.B. Ramalingam, a witness to the agreement of sale and as PW.3 J. Nagaraj, who had prepared the agreement of sale. As a matter of fact, the sale agreement also contained the seal of J. Nagaraj with his licence number. The learned counsel further pointed out the improbability of the defence in that, the Appellant had claimed that he had signed the blank stamp papers in January 1996, whereas Ex.A1 dated 21.2.1996 had been typed in stamp papers purchased in February 1996. The learned counsel further pointed out that the Appellant had claimed that he had borrowed loan from Sathyam Finance and that he had repaid the loan. However, this fact had not been proved by the Appellant in a manner known to law. 13. With respect to the contention that there was a school in the suit property, the learned counsel for the Respondent pointed out Ex.C1 and C2, which are the report and rough sketch of the Advocate Commissioner, which clearly established that the suit property was a vacant land and it was the adjacent property in which there was a school. The fact that in the vacant land, there was a well and trees would not render the agreement of sale void. These are fixed to the land and the suit property has been properly described by giving survey number and the boundaries and consequently, there is no doubt in the identity of the suit property. 14. This court carefully considered the rival contentions of the learned counsel on either side. 15. Ex.A1 is the agreement of sale dated 21.2.1996. These are fixed to the land and the suit property has been properly described by giving survey number and the boundaries and consequently, there is no doubt in the identity of the suit property. 14. This court carefully considered the rival contentions of the learned counsel on either side. 15. Ex.A1 is the agreement of sale dated 21.2.1996. The signature of the Appellant / Defendant C. Padmanabhan had been admitted by him during the trial and in the pleadings. However, it was the contention of the deceased Appellant C. Padmanabhan that he had affixed these signatures found in Ex.A1 in blank papers. A perusal of Ex.A1 reveals that this contention is improbable and cannot be believed. Ex.A1 has been typed in two stamp papers of Rs.5 each. Both the stamp papers had been purchased on 7.2.1996. In the first stamp paper, the signature of the deceased Appellant who was the Defendant had been affixed exactly after the typed matter. In the second stamp paper, again it has been affixed practically at the middle of the stamp paper after the typed matter and thereafter, there is sufficient space wherein the witness A.B. Ramalingam who was examined as PW.2 and the typist K. Mary and the document writer J. Nagaraj, who was examined as PW.3 have affixed their signatures. Had the Respondent herein obtained signatures in blank papers, the signatures would have been found at the bottom of each page. In this case, in the second stamp paper, the signature is once again found just after the typed matter next in the middle of the page. Consequently, on a perusal of Ex.A1, I negative the contention of the Appellant that Ex.A1 was signed in blank papers and thereafter, the words had been typed. Once this contention is rejected, it is obvious that the Defendant had put up a false plea before the Trial Court. Even other wise, Ex.A1 will have to be examined to see whether there has been consensus ad idem between the parties. A perusal of the same shows that the Appellant had mentioned in Ex.A1 that he had purchased the schedule mentioned property from his own earnings by sale deed dated 2.11.1979. This is a fact known exclusively to the Appellant. Mentioning that indicates that the Appellant had given information as to the title and as to how he obtained title over the schedule property. This is a fact known exclusively to the Appellant. Mentioning that indicates that the Appellant had given information as to the title and as to how he obtained title over the schedule property. This could not have been to the knowledge of the Respondent, who was the Plaintiff. Consequently, I hold that the Appellant had also known what was written in the stamp paper before affixing his signature. 16. The agreement of sale further proceeds that a sum of Rs.25,000/- had been received by cheque no.384492 draw on State Bank of India, Karaikudi. This is also a specific information. A transaction by cheque if it is disputed by the Appellant, the burden is heavily on him to prove the same. He could have very easily discharged such burden by producing his statement of accounts or at least issuing a notice to the Respondent to produce necessary details and then call upon the court to draw an adverse inference. However, none of these were taken by the appellant during the trial. 17. There is yet another statement in Ex.A1 with respect to the payment of further advance of Rs.2,25,000/- by cash. In the said agreement of sale at page 2, the schedule is clearly mentioned. The survey numbers are given. The area is given. The block number is given. The measurement is given and the boundaries are given. Consequently, there is no doubt about the identity of the property. I hold that the defence taken by the Appellant that he had signed in blank stamp papers has to be negatived not only on the ground of improbability, but also on the ground that Ex.A1 discloses facts exclusively to the knowledge of the Appellant and consequently, he had signed it consciously and with knowledge that he is entering into an agreement of sale with the Respondent herein. 18. In this connection, even if the evidence of the Respondent and the Appellant are to be given less importance since they are directly interested parties, this court will have to examine the evidence of PW.2, who was the witness to the agreement and the evidence of PW.3, who was the document writer. PW.2 was examined orally in chief examination. He had categorically stated that he knew both the Appellant and the Respondent. He further signed in Ex.A1. He also stated the place at which Ex.A1 was signed. PW.2 was examined orally in chief examination. He had categorically stated that he knew both the Appellant and the Respondent. He further signed in Ex.A1. He also stated the place at which Ex.A1 was signed. He also stated that he and the Appellant and the Respondent and the document writer who was examined as PW.3 were all present in the same place at the same time. He stated that he directly saw the Appellant signing Ex.A1. He further stated that he thereafter signed as a witness. He further stated that the typed matter was already present when the Appellant signed Ex.A1. He further stated that the Appellant read the document. He thereafter signed the document. He also received the advance consideration of Rs.2,25,000/-. He saw the payment of advance sale consideration. He denied that the papers were blank when the Appellant signed and that no consideration was paid. During the cross examination, he again reiterated the place where the agreement of sale was signed and the place where the advance amount was paid. He withstood the cross examination and denied the suggestion that he was interested in the affairs of the Respondent. 19. PW.3 J. Nagaraj, who was the document writer was also examined orally in chief, and he also stated the place where Ex.A1 was signed by the Appellant. He stated that he personally saw the Appellant signing the document, which was already typed. He had prepared the document. He also gave the time at which the agreement was signed. He also saw the advance amount of Rs.2,25,000/- being handed over to the Appellant. He denied that the Appellant signed in blank papers. Once again, this witness was also cross examined in detail. But, he withstood his cross examination. He in fact ever stated that the amount was handed over in 100 rupees bundles. He also stated that the typist K. Mary was a licensed typist. Both the witnesses deposed facts to their exclusive knowledge. 20. All the above reasons point out to the fact that Ex.A1 agreement of sale had been entered into voluntarily and consciously by the deceased Appellant herein. 21. In 2013 2 CTC 104 (Thomson Press (India) Limited Vs. Nanak Builders and Investors P. Limited) it had been held that a transferee pendente lite can “pursue only such defences as were available and taken by the original Defendants and none other”. 22. 21. In 2013 2 CTC 104 (Thomson Press (India) Limited Vs. Nanak Builders and Investors P. Limited) it had been held that a transferee pendente lite can “pursue only such defences as were available and taken by the original Defendants and none other”. 22. In this case, pursuant to the death of the sole Appellant, the Appellants 2 to 8 have been brought on record as legal representatives. The grounds which they can agitate are limited to grounds which were already urged by the sole Appellant before this court. Consequently, their defences to the suit will also be limited to the defence already put up by the sole deceased Appellant. In such circumstances, since the sole Appellant had denied the execution of the agreement of sale and had put up an alternative case that he had no transactions with the sons of the Respondent herein, the present Appellants are entitled to put forward the same theory alone. The contention of the Appellants that the agreement of sale was entered into surreptitiously has been rejected by this court. 23. Further contention of the Appellant is that he had entered into loan transactions with the sons of the Respondent. In this connection, the Appellant had marked Ex.B6 and Ex.B7. Ex.B6 is a document issued by Sathyam Chit funds dated 10.5.1994 with respect to a chit for a sum or Rs.1 lakh which was taken on auction for Rs.70,000/- and the amount payable is Rs.3750/-. The auction date was 16.5.1994. Ex.B7 is yet another letter by Sathyam Chit Funds with respect to chit auction dated 15.8.1994. In this case, the agreement of sale is dated 21.2.1996. There is absolutely no connection between Ex.B6 and Ex.B7 and Ex.A1. In fact, there is no connection between Sathyam Chit Funds and the parties to the litigation herein. Consequently, the defence put up by the learned counsel for the Appellants is rejected. 24. In 1993 2 MLJ 7 (Nanjammal (died) and another Vs. Palaniammal), a plea was taken that the agreement of sale was not a genuine document and that it was only a loan transaction and wherein also like the present case on facts it was found that the agreement of sale was entered into with an intention for the document to be an agreement of sale, the Division Bench of this court had held as follows:- “6. Hence, the only question to be considered is whether the relief of specific performance should not be granted to the Plaintiff. The normal rule is that once the truth of the agreement is made out the court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the agreement for sale. In the present case, no such circumstance has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the Defendant and relief of specific performance should be denied.” 25. In this case, the Appellant has not pleaded that equity would suffer by enforcing the agreement of sale. A perusal of Ex.C1 and C2 which are the report by the Advocate Commissioner and the plan of the suit property reveals that the suit schedule property is actually a vacant site and the school which is stated by the Appellant to exist is actually in the adjacent portion. There is no ambiguity in the schedule of the property. In Ex.C1, the Advocate Commissioner had given a specific finding that the school is only in the adjoining western side of the suit property. Consequently, even on this ground, the contention of the Appellants fails and in view of the above reasons and discussions, this appeal suit deserves dismissal. 26. In the result, this appeal suit is dismissed with costs. The impugned judgement and decree dated 6.7.1999 made in OS.No.46 of 1998 by the Subordinate Judge, Devakottai is confirmed.