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2018 DIGILAW 2333 (MAD)

Sellammal v. Thirugnana Sambandamurthy

2018-08-01

T.RAVINDRAN

body2018
JUDGMENT : T. RAVINDRAN, J. 1. Challenge, in this second appeal, is made to the Judgment and Decree dated 31.10.2003 passed in A.S. No. 16 of 2003 on the file of the Principal District Court, Coimbatore, confirming the Judgment and Decree dated 04.12.2002 passed in O.S. No. 147 of 1996 on the file of the Subordinate Court, Udumalpet. 2. The second appeal has been admitted on the following substantial questions of law: (i) Whether the Courts below are justified in law in disbelieving Ex.B3 Settlement deed which was been accepted and acted upon in accordance with Sections 122 and 123 of the Transfer of Property Act, 1882? (ii) When the time for performance of contract had not expired, whether the alleged purchaser is entitled to sue for specific performance? 3. Considering the scope of the issues involved between the parties as regards the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail. 4. The suit has come to be laid by the plaintiff for the reliefs of specific performance and permanent injunction. 5. Suffice to state that the plaintiff has sought for the relief of specific performance based on the sale agreement dated 11.10.1995 marked as Ex.A1 and according to the plaintiff, the first defendant Krishnammal examined as DW-3 had executed the abovesaid sale agreement in his favour for a sum of Rs. 1,50,000/- determining the same as the sale price of the suit property and it is stated that on the date of the sale agreement, the plaintiff had paid a sum of Rs. 1,00,000/- to the first defendant and the balance sum of Rs. 50,000/- has been agreed to be paid within one year from the date of the sale agreement and though the plaintiff had been always ready and willing to part with the balance sale consideration and complete the sale transaction, inasmuch as the first defendant had been delaying the same on some pretext or other, according to the plaintiff, he has been necessitated to lay the suit for appropriate reliefs. 6. 6. Further, it is stated by the plaintiff that on the date of the sale agreement Ex.A1, the possession of the suit property had been handed over to him and accordingly, he is in the possession and enjoyment of the same and the defendants attempted to interfere with his possession and enjoyment in respect of the suit property and hence, he has been necessitated to seek the relief of permanent injunction also. 7. The second defendant is the daughter of the first defendant. The second defendant is mainly contesting the plaintiff's suit by contending that the first defendant had executed a settlement deed in her favour in respect of the suit property on 18.03.1996 marked as Ex.B3 and accordingly, it is the claim of the second defendant that the suit property absolutely belongs to her and the sale agreement projected by the plaintiff is not true and concocted by the plaintiff, accordingly, it is her case that the plaintiff cannot be allowed to obtain the reliefs sought for and on the other hand, it is only she, who has title to the suit property as put-forth in the written statement. 8. It is found that in support of the plaintiff's case, PWs. 1 and 2 were examined and Exs.A1 to A13 were marked. On the side of the defendants, DWs. 1 and 4 were examined and Exs.B1 to B8 were marked. 9. To establish the genuineness of Ex.A1 sale agreement, the plaintiff has tendered evidence as PW-1. Further, the plaintiff has also examined the attestor to the sale agreement M. Veerappan as PW-2 and PW-2, in his evidence, has stated that the plaintiff and the first defendant entered into a sale agreement on 11.10.1995 in respect of the suit property fixing the sale price at Rs. 1,50,000/- and on that premise, the plaintiff paid a sum of Rs. 1,00,000/- to the first defendant on the date of the sale agreement and the parties had agreed that the balance sale consideration should be paid by the plaintiff within one year from the date of the sale agreement and accordingly, the parties should complete the sale transaction and further, according to PW-2, on the date of the sale agreement, the suit property had been handed over to the possession of the plaintiff by the first defendant and accordingly, he has deposed that the parties viz. the plaintiff and the first defendant had entered into the sale agreement Ex.A1 and he had attested the same as a witness to the said transaction. As rightly determined by the Courts below, the evidence of PW-2 is found to be convincing, cogent and trustworthy and despite the cross examination, nothing had been elucidated from him by the second defendant, in particular, to discredit his testimony and accordingly, it is found that the plaintiff, on the strength of his evidence as well as the evidence of the attestor PW-2, has established that the sale agreement Ex.A1 had come to be entered into between him and the first defendant with reference to the suit property as put-forth in the plaint. In this connection, it is to be noted that the first defendant Krishnammal had herself appeared in the Court and filed a memo dated 13.03.1998 through her counsel that she is agreeing for the decree of the specific performance in respect of the suit property in favour of the plaintiff as claimed in the plaint. Accordingly, it is found that even the vendor viz. the first defendant had in fact submitted to the decree in favour of the plaintiff. Not stopping there, the first defendant examined as DW-3 has also tendered evidence about the factum of the sale agreement Ex.A1 having been entered into between her and the plaintiff as regards the sale of the suit property for a sum of Rs. 1,50,000/- and that, she had received a sum of Rs. 1,00,000/- from the plaintiff on the date of the sale agreement and the parties had agreed to complete the sale transaction within one year on the payment of the balance sale consideration by the plaintiff to the first defendant and accordingly, she had also testified that she is ready to receive the balance sum of Rs. 50,000/- from the plaintiff and execute the sale deed as claimed in the plaint. 50,000/- from the plaintiff and execute the sale deed as claimed in the plaint. Accordingly, it is found that the plaintiff has reinforced his case through the evidence of the first defendant examined as DW-3 and when it is seen that the vendor herself has clearly admitted about the authenticity of Ex.A1 sale agreement and also the parting of the advance amount under the same and also had expressed her willingness without any ambiguity for executing the sale deed in favour of the plaintiff as claimed in the plaint and also as above seen, filed a memo in the Court submitting to the decree, it is seen that the Courts below had, accordingly, on a cumulative analysis of the evidence projected by the plaintiff upheld his case and thereby, it is seen that the Courts below had rightly granted the relief of specific performance in favour of the plaintiff and also finding that it is only the plaintiff, who has been in the possession and enjoyment of the suit property pursuant to Ex.A1 sale agreement, had also granted the relief of permanent injunction restraining the second defendant, in particular, from interfering with his possession and enjoyment of the suit property. 10. As far as the defence presented by the second defendant by way of projecting a claim that the first defendant had executed a settlement deed in her favour in respect of the suit property on 18.03.1996, the Xerox copy of which document has come to be marked as Ex.B1 and accordingly, the second defendant put-forth a claim of title to the suit property and thereby, challenged the genuineness of Ex.A1 sale agreement. DW-3, the first defendant has tendered evidence repudiating the execution of Ex.B3. Moreover, as seen from the materials placed on record, it is found that there is no love lost between the defendants 1 and 2 though they are mother and daughter and it is seen that the litigation has been pending between them for more than 12 years and in this connection, it is found that the second defendant's husband Chinnasamy i.e. Son-in-law of the first defendant had moved the revenue authority for recording his name as the tenant in respect of the suit property. However, it is found that his attempts, with reference to the same, ended in vain and he had not been granted any such relief for recording his name as the tenant in respect of the suit property. Thus, it is found that there is no peace between the defendants 1 and 2 and all along, they had been vying with each other as regards the claim of title to the suit property. Accordingly, it is found that the second defendant's husband Chinnasamy efforts to record his name as the tenant of the suit property did not end in his favour. 11. Not only that, it is also found that the first defendant had levied the suit against the second defendant and her husband in O.S. No. 584 of 1990 and it is found that the first defendant had been granted the relief of temporary injunction in the said suit after contest for safeguarding her interest, possession and enjoyment of the suit property. Thus, it is found that all along, the litigation has been pending between the defendants 1 and 2 and in such view of the matter, to say that the first defendant had settled the suit property in favour of her daughter, the second defendant on the ground of love and affection as such cannot be believed and accepted in any manner. 12. As regards the genuineness of Ex.B3 settlement deed, it is found that the assistant, who had been working in the Sub-registrar office where the document Ex.B3 had come to be registered, has only deposed that he had not obtained the signature of DW-3 Krishnammal in the document and also stated that he could not state as to who had affixed the thumb impression, by seeing the thumb impression in the register concerned and accordingly, the Courts below had rightly determined that DW-2 would not be a competent witness to testify as to whether the first defendant had really executed the settlement deed Ex.B3 in favour of the second defendant. 13. The second defendant has also examined Kumarasamy, the attestator of Ex.B3 settlement deed as DW-4 and as rightly found by the Courts below, the evidence of DW-4 does not satisfy the requirements of law as regards his case of attestation of the settlement deed Ex.B3. 13. The second defendant has also examined Kumarasamy, the attestator of Ex.B3 settlement deed as DW-4 and as rightly found by the Courts below, the evidence of DW-4 does not satisfy the requirements of law as regards his case of attestation of the settlement deed Ex.B3. As rightly determined by the Courts below, DW-4 has not expressed clearly deposed that he had witnessed the actual affixation of the thumb impression by the first defendant in his presence in the settlement deed Ex.B3 or in the presence of the other witness and in such view of the matter, considering the principles of attestation as per law, the Courts below had accordingly held that the evidence of DW-4 cannot be accepted for upholding the validity of Ex.B3. 14. To cap it all, it is also found that the second defendant has not cared to produce the original settlement deed in support of her case. No plausible explanation has been offered on her part as to why the original settlement deed had not been presented before the Court. Thus, it is found by the Courts below, when the second defendant has not made out any cause for the production of the secondary evidence as regards the settlement deed, it is found that the genuineness of the settlement deed based on the Xerox copy of the same cannot be determined and furthermore, as above pointed out, when the witnesses examined by the second defendant, viz. DWs. 2 and 4 with reference to the execution of the settlement deed, not inspiring confidence and acceptability as above discussed, it is found that the Courts below are justified in negativing the claim of the second defendant to the suit property on the basis of the settlement deed marked as Ex.B3. In addition to that, there is no material placed worth acceptance placed by the second defendant as such to show that she or her husband has been in the lawful possession of the suit property as claimed in the written statement. 15. In addition to that, there is no material placed worth acceptance placed by the second defendant as such to show that she or her husband has been in the lawful possession of the suit property as claimed in the written statement. 15. In the light of the above discussions, it is evident that the second defendant has miserably failed to establish the truth and validity of Ex B3 settlement deed, particularly, the execution of the same by the first defendant and the attestation of the same as mandated under law and such being the position, it is found that the settlement deed projected by the second defendant marked as Ex.B3 cannot be determined to be a true and valid document and the rejection of Ex.B3 settlement deed by the Courts below do not warrant any interference. 16. When it is found that the plaintiff has been always ready and willing to perform his part of the contract and accordingly, the vendor viz. DW-3 herself has also admitted that she is ready to convey the suit property in favour of the plaintiff after receiving the balance sale consideration and when it is found that the plaintiff has levied the suit in time, accordingly, the Courts below had rightly found that the plaintiff's suit had been filed in time and accordingly, held that the plaintiff is entitled to the relief of specific performance as prayed for. In such view of the matter, the contention put forth by the second defendant that the suit laid by the plaintiff even before the expiry of time fixed in the sale agreement by itself would not in any manner render the plaintiff's case as unacceptable. Considering the totality of the facts and circumstances of the case as well as the evidence adduced in the matter, the substantial questions of law formulated in the second appeal are accordingly, answered in favour of the plaintiff and against the second defendant. CMP No. 12626 of 2005 17. Considering the totality of the facts and circumstances of the case as well as the evidence adduced in the matter, the substantial questions of law formulated in the second appeal are accordingly, answered in favour of the plaintiff and against the second defendant. CMP No. 12626 of 2005 17. The petition has been levied under Order 41 Rule 27 CPC by the second defendant/ appellant for the production of additional evidence on the footing that the first defendant had executed a cancellation deed dated 15.06.2005, in and by which, she had revoked Ex.B3 settlement deed and therefore, according to her, by way of the same, the first defendant, having admitted the execution of Ex.B3 settlement deed, the cancellation deed dated 15.06.2005 should be received as additional evidence in support of her case. Further, she has also pleaded that the plaintiff had executed the sale deed dated 17.06.2005 in favour of one Ramachandran and the abovesaid document would also strengthen her case and accordingly, seeking for the production of the abvoesaid documents as additional evidence, the abovesaid petition has come to be laid by the second defendant/appellant. However, the plaintiff's counsel contended that the abovesaid documents projected by the second defendant/appellant would not in any manner be useful to sustain her case, particularly, when she has failed to establish the truth and validity of Ex.B3 settlement deed. Accordingly, it is found that when the second defendant has based upon her claim to the suit property on the strength of Ex.B3 settlement deed and for the reasons aforestated, when it is found that the second defendant has miserably failed to establish the truth and validity of the same, her present case that the first defendant had cancelled the settlement deed dated 15.06.2005 and the said document would support her case, as rightly putforth by the plaintiff's counsel cannot be countenanced in any manner. Further, the sale deed said to have been executed by the plaintiff in favour of one Ramachandran also has not been shown to be relevant to the determination of the issues involved in the matter. Further, the sale deed said to have been executed by the plaintiff in favour of one Ramachandran also has not been shown to be relevant to the determination of the issues involved in the matter. Such being the position, it is found that the additional evidence projected by the second defendant being found to be not germane for the determination of the issues involved in the matter and when the materials placed on record already are more than sufficient for determining the issues involved in the matter, accordingly, it is found that the additional evidence sought to be projected by the second defendant / appellant does not merit acceptance. Accordingly, the petition is liable to be dismissed. 18. In conclusion, the second appeal fails and is, accordingly, dismissed with costs. C.M.P. No. 12626 of 2005 is also dismissed. Consequently, connected miscellaneous petition, if any, is closed.