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2019 DIGILAW 3262 (MAD)

Muthulakshmi v. Balaguru Pandiyan

2019-11-26

P.T.ASHA

body2019
JUDGMENT : (Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 24.02.2014 in A.S.No.29 of 2012 on the file of the Additional District and Sessions Court, Dindigul, reversing the judgment and decree dated 23.03.2011 in O.S.No.656 of 2002 on the file of the Additional Sub-Court, Dindigul.) The defendants in a suit for specific performance are the appellants before this Court. The parties are referred to in the same status as in the trial Court. 2. The plaintiff's case: (i) The plaintiff had come forward with the case that the suit property belongs to the second defendant by virtue of a registered sale deed dated 09.11.1957. The deceased first defendant is the son of the second defendant. Originally, the suit was filed only against the first and second defendants and thereafter, on the death of the first defendant, the legal representatives of the first defendant were brought on record as defendants 3 and 4. (ii) It is the case of the plaintiff that the second defendant had executed a registered power of attorney in favour of the first defendant. The first defendant had offered to sell the suit property to the plaintiff for a total sale consideration of Rs.1,50,000/- and the plaintiff agreed to purchase the same. On 06.12.2001, an agreement of sale was entered into between the plaintiff and the first defendant as the power agent of the second defendant. The agreement of sale was registered. A sum of Rs.1,00,000/- was paid as advance and the balance of Rs.50,000/- was repayable within a period of one year from the date of execution of the agreement. (ii) The plaintiff would contend that he had been ready and willing to purchase the property right from the inception and despite his personally approaching the first defendant to sell the property in his favour on 07.06.2002 and 07.07.2002, the first defendant evaded the execution. On 20.08.2002, the plaintiff had issued a legal notice to the first defendant to which a reply was received denying the plaintiff's claim and therefore, leaving the plaintiff with no other alternative, but to file the suit. 3. On 20.08.2002, the plaintiff had issued a legal notice to the first defendant to which a reply was received denying the plaintiff's claim and therefore, leaving the plaintiff with no other alternative, but to file the suit. 3. The defense put forward by the defendants: (i) The second defendant had filed a written statement on 06.06.2005 inter alia contending that the plaintiff and the deceased first defendant were doing joint business in selling pinewood and it appears that, in this transaction, the first defendant owed money to the plaintiff. The first defendant was prone to drinking and taking advantage of his inebriated state, the plaintiff had got the first defendant's signature in the agreement stating that he was taking the same only as a security for the amounts due and payable by the first defendant in the business. On account of his excessive drinking and frequent illness, the first defendant was unable to take action immediately to set aside this agreement and later, the first defendant died. The contention of the second defendant was that the sum of Rs.1,00,000/- was not received by the first defendant and the agreement itself has been obtained only by coercion and force taking advantage of the weakness of the first defendant. It was only when the notice Ex.A2 was received, the second defendant came to know about the agreement. The second defendant had also sent a fitting reply dated 30.09.2002 to the legal notice issued by the plaintiff. The second defendant therefore, sought to have the suit dismissed. (ii) The fifth defendant has also filed a written statement reiterating the stand taken by the second defendant that the power deed had been manoeuvred by the deceased first defendant, who was leading wayward life and had spent most of his money. He had got the power executed from the second defendant in order to meet his necessities. The second defendant has executed a power of attorney in favour of the fifth defendant and the fifth defendant was contesting the case on behalf of the second defendant. The fifth defendant would further submit that the power deed dated 30.06.1998 was not executed by the second defendant out of her own free will and volition. On the contrary, she has been coerced into agreement of sale. Trial Court: 4. The fifth defendant would further submit that the power deed dated 30.06.1998 was not executed by the second defendant out of her own free will and volition. On the contrary, she has been coerced into agreement of sale. Trial Court: 4. The parties had gone to trial before the Additional Subordinate Court, Dindigul and the learned Judge had framed the following issues: OTHER LANGUAGE 5. The plaintiff had examined himself as P.W.1, one Bose as P.W.2 and marked Exs.A1 to A3. 6. On the side of the defendants, the second defendant had examined herself as D.W1, the third defendant as D.W.2 and a third party was examined as D.W.3. On their side, the defendants had marked Ex.B1 to B14. 7. After an elaborate consideration of the evidence on record, the learned Judge was pleased to dismiss the suit. Appellate Court: 8. Aggrieved by the said judgment and decree, the plaintiff had filed A.S.No.29 of 2012 on the file of the Additional District and Sessions Court, Dindigul. 9. The appellate Court while reconsidering the judgment and decree of the trial Court, proceeded to observe that the agreement of sale Ex.A1 was not executed as a security. The learned Judge has proceeded to allow the appeal on the basis that the signature in the deed had been admitted by the defendants. The learned Judge had also found no truth in the allegation of the defendants that the signature of the first defendant was obtained through undue influence and taking advantage of his weakness. The learned Judge has also observed that the defendants had not proved their case that the first defendant was under the influence of alcohol when the agreement was signed. The appellate Court ultimately reverse the judgment and decree of the trial Court and allowed the appeal. Second Appeal: 10. Challenging the said judgment and decree, the defendants are before this Court. 11. This Court was pleased to admit the above second appeal on the following substantial questions of law : “1) Whether the first appellate Court is justified in granting an equitable relief of specific performance, merely on the ground that execution of agreement is established, without considering that many doubts arise about the truth of Ex.A1 from the plaintiff's evidence itself? This Court was pleased to admit the above second appeal on the following substantial questions of law : “1) Whether the first appellate Court is justified in granting an equitable relief of specific performance, merely on the ground that execution of agreement is established, without considering that many doubts arise about the truth of Ex.A1 from the plaintiff's evidence itself? (2) Are the conclusions of the first appellate Court sustainable in law, especially in the light of the oral evidence and admissions of P.W1/Plaintiff regarding various particulars surrounding the agreement and his relationship with 1st defendant? (3) Is the first appellate Court correct and justified in placing the burden of proof on the defendants, to disprove the plaintiff's case and prove their case, and consequently granting a decree without considering the plaintiff's case and the fundamental principles of law of evidence?” Submissions: 12. Heard Mr.Laxmi Shankar, learned counsel for the appellants and Mr.R.Vijayakumar, learned counsel for the respondents 13. The learned counsel for the appellants would make the following submissions: (a) Since the defendants have refuted the circumstances under which the agreement of sale had come into existence, the burden of proof was on the plaintiff to prove that the transaction was intended only to be an agreement of sale and not otherwise. The learned counsel would also submit that even at the very first instance, namely, after the receipt of the legal notice EX.A2, the first defendant has himself issued a legal notice in which he has categorically refuted the execution of Ex.A1 as an agreement of sale and on the contrary had stated that the agreement was signed only as a security for the amounts that were due towards the transactions that had been entered into between the plaintiff and the first defendant. (b) The manner in which the agreement of sale Ex.A1 had come about would clearly indicate that it was not meant to be an agreement of sale. The learned counsel would point out the following circumstances, which would clearly show that the agreement was not intended to be an agreement of sale. (i) The plaintiff as P.W.1 is not aware of the property in question. (ii) The plaintiff has never directly contacted the second defendant the real owner. (iii) The plaintiff has not verified the documents of title and also cross checked the market value of the property. (i) The plaintiff as P.W.1 is not aware of the property in question. (ii) The plaintiff has never directly contacted the second defendant the real owner. (iii) The plaintiff has not verified the documents of title and also cross checked the market value of the property. (iv) The power of attorney has been executed as early as in 1988 June, whereas the sale agreement was executed on 06.12.2001 and the plaintiff has not verified as to whether the power of attorney was still in force. (v) All acts have been done only by the first defendant not by real owner second defendant. Even the legal notice has been issued only to the first defendant and not to the second defendant. (c) The plaintiff has not proved his readiness and willingness except for simply making an averment about readiness and willingness to be in compliance with the provisions of Section 16(c) of the Specific Relief Act(hereinafter called 'the Act'). 14. In support of his submissions, the learned counsel would rely on the following judgments reported in AIR 1995 SC 1769 (S.Rangaraju Naidu v. Thiruvarakkarasu) and reported in AIR 1998 SC 1413(Gopal Krishnaji Ketkar v. Mohammed Haji Latiff and others, in support of his argument that the plaintiff has not made available the documents relating to the transactions that he had with the first defendant in respect of pinewood business. The above judgments have been cited to state that where the best evidence has been kept away and the Court can draw adverse inference. 15. The learned counsel relied on the decision reported in AIR 2000 SC 1203 (Subhra Mukherjee and another v. Bharat Coking Coal Ltd., and others), in support of the argument that though the onus is on the persons attacking the transaction as sham, bogus and fictitious, the same has two parts. The first part being whether the transaction is a bonafide and genuine one which has to be proved by the appellants therein. The second part being that once genuineness of the document is proved, it is for the person attacking the transaction as sham, bogus and fictitious, to prove it. 16. The first part being whether the transaction is a bonafide and genuine one which has to be proved by the appellants therein. The second part being that once genuineness of the document is proved, it is for the person attacking the transaction as sham, bogus and fictitious, to prove it. 16. The learned counsel relied on the judgment reported in 2008 3 MLJ 796 (P.Sampoornam and others v. L.T.Somasundaram and others), in support of his argument that the suit for specific performance is a discretionary relief and the Courts have to be very circumspect while granting the same. 17. The learned counsel would also rely on the judgment reported in 2009 1 CTC 803 (K.R.Venugopal vs. K.R.Srinivasan and four others), in support of his contention that Section 16(c) of the Act, is peremptory and strict scrutiny has to be gone into the same. He would therefore, seek to have the judgment and decree of the appellate Court set aside. 18. Mr.Vijayakumar, arguing on behalf of the respondent/plaintiff would contend that the second defendant has not denied the execution of the agreement by the first defendant. Admittedly, she had executed the power of attorney in favour of her son, the first defendant. It is on the basis of this power of attorney, the sale had taken place in favour of the plaintiff. He would further submit that even in the reply given by the first defendant to the legal notice issued by the plaintiff, he has only narrated the events that had taken place after the execution of the agreement of sale and not prior to it. If really there was any amount that was due and payable by the first defendant to the plaintiff, the same would have featured in the agreement of sale as a part of the sale consideration. 19. That apart, the defendants have not proved that there were transactions between the plaintiff and the first defendant and that there has been outstanding in such transactions towards which the agreement of sale has been executed as a security. That apart, the main ground on which the agreement of sale is attacked is the same has been executed when the first defendant was in an intoxicated state. However, the same has not been proved. Further, the defendants kept away the best evidence available namely the evidence of the second defendant's son Balan. That apart, the main ground on which the agreement of sale is attacked is the same has been executed when the first defendant was in an intoxicated state. However, the same has not been proved. Further, the defendants kept away the best evidence available namely the evidence of the second defendant's son Balan. The non-examination has to be viewed as a very serious omission since the said Balan was present at the time of the execution of the document and executed the same as a witness. 20. In support of the argument that the best evidence has been kept away, he has relied on the judgment reported in (2009) 14 SCC 541 (Mussaudddin Ahmed vs. State of Assam). The judgment reported in (2001) 7 SCC 705 (Paramanand vs. Bajrang and Another) was referred to buttress his argument that where registered document is sought to be contradicted as not being the true intention of the Executor, it is for the defendants to prove the same. 21. With reference to readiness and willingness, the learned counsel would rely on the judgment reported in 2008 11 SCC page 45(Silvey and others vs. Arun Varghese and another). 22. With reference to the onus of proof, the learned counsel relied on the judgment reported in 2016 8 MLJ 539 (Yesudhas and others vs. Primala Regu). Discussion: 23. On a perusal of the records and hearing the arguments of the counsels on either side, this Court is proceeding to consider the first substantial question of law. 24. The Lower Appellate Court has proceeded to hold that Ex.A1 was executed by the 1st defendant and in this regard has observed as follows: Even in the reply notice Ex.A3, the first defendant has not denied the execution of the agreement of sale. He has only contended that the agreement was only meant to be a security for the outstanding due to the plaintiff on account of the business dealings that he had with the plaintiff. Therefore, it can be safely concluded that the first defendant had admitted the execution of the agreement of sale. 25. The defendants who pleaded that Ex.A1 was executed as a security for the outstanding due under the transaction between the plaintiff and the first defendant regarding pinewood has failed to prove it. 26. Therefore, it can be safely concluded that the first defendant had admitted the execution of the agreement of sale. 25. The defendants who pleaded that Ex.A1 was executed as a security for the outstanding due under the transaction between the plaintiff and the first defendant regarding pinewood has failed to prove it. 26. The defendants, who had the best evidence available in the form of son of the second defendant and brother of the first defendant Balan, have not put him into the witness box. Had the defendants examined the said Balan, they could have clearly established that the agreement between the plaintiff and the first defendant on the date of the execution of the agreement of sale was not with an intent to sell the suit schedule property, but only as a security for the amounts due from the first defendant to the plaintiff in their business. The said Balan could have not only adduced evidence about the manner in which the agreement of sale had been entered into, but, he could also speak about the receipt or non-receipt of the advance amount. There is no explanation forthcoming on the defendants side as to why he has not been examined. The Court is forced to draw an adverse inference by reason of the fact that the other son of the second defendant has been impleaded as the fourth defendant in the proceedings and he is now the power of attorney of the second defendant after the demise of the first defendant. Therefore, the plaintiff has proved the execution of the agreement of sale, Ex.A1. The question as to whether the plaintiff is entitled to a decree for specific performance is answered later in this judgment. 27. As regards the question of law No.2, it is seen that the plaintiff in his oral evidence had admitted that he has a long standing relationship with the 1st defendant and had transactions with him. He would therefore state that he had gone ahead with the purchase of the property by executing the agreement of sale only on the strength of his relationship with the first defendant and the confidence he had in him. He would therefore state that he had gone ahead with the purchase of the property by executing the agreement of sale only on the strength of his relationship with the first defendant and the confidence he had in him. Therefore, the argument advanced by the defendants that the failure on the part of the plaintiff to exercise the due diligence of a normal buyer may not hold much water in the light of the above oral evidence of the plaintiff as P.W.1 which has not been shaken in cross. This question of law is answered in favour of the plaintiff. 28. As regards the third question of law, the burden of proof is placed on the defendants only after the Court had upheld the execution of agreement of sale. The defendants, who have come forward with the case that though the document is styled as an agreement of sale, it was not intended to be an agreement of sale, have failed to prove the said contention. Once execution is admitted and particularly when they have kept away most vital witnesses Balan, who is none other than the son of the second defendant and brother of the fourth defendant and who has witnessed the execution of Ex.A1, the Lower Appellate Court has not erred in placing the onus of proof on the defendants. 29. Though arguments have been advanced on the readiness and willingness of the plaintiff a question of law in this regard has not been framed. This Court is therefore, framing the fourth additional question of law, which reads as follows and on which exclusive arguments have also been made: “Whether the plaintiff has been able to establish his readiness and willingness from the date of the agreement of sale to the date of the filing of the suit?” 30. From a reading of the pleadings, it is seen that under the agreement of sale, the time given for executing the sale deed and receiving the balance consideration is one year. The agreement of sale was entered into on 06.12.2001 and therefore, the agreement should have been concluded on or before 05.12.2002. The plaintiff had issued the legal notice Ex.A2, informing the defendants about the willingness to pay balance sale consideration and getting the sale deed executed only on 20.08.2002, nearly over eight months from the date of the agreement. The agreement of sale was entered into on 06.12.2001 and therefore, the agreement should have been concluded on or before 05.12.2002. The plaintiff had issued the legal notice Ex.A2, informing the defendants about the willingness to pay balance sale consideration and getting the sale deed executed only on 20.08.2002, nearly over eight months from the date of the agreement. Though the plaintiff in the plaint has contended that he had met the 1st defendant on 07.06.2002 and 07.07.2002 asking him to proceed with the sale, this contention has not been proved by the plaintiff. 31. The suit has been filed four months after the legal notice on 31.12.2002. The suit has been filed after the period of one year. Though the plaintiff has averred his readiness and willingness, the same has not been proved by him. 32. In the judgment reported in 2009 1 CTC 803 (cited supra), this Court has observed that the mandate of Section 16(c) of the Act is peremptory and strict scrutiny has to be undertaken even in the cases where the defendant had not appeared. In the above judgment, the learned Judge would observe as follows: “8. The most important issue to be decided in a Suit for specific performance is whether the plaintiff, who came to Court for enforcing the agreement, had been ready and willing to perform his part of the contract. The mandate of Section 16(c) of the Specific Relief Act is pre-emptory and the issue will be always undertaken for strict scrutiny irrespective of whether the defendant appears or not or, whether the readiness and willingness is put to a dock by a specific contention, by the defendants or not.” In the case on hand also, except for a statement in the plaint there is no other overt action taken by the plaintiff to prove the readiness and willingness. 33. Further, the Division Bench of this Court in the judgment reported in 2019 (3) CTC 564 (R.Gnana Arulmoni vs. R.S.Maharajan), has further reiterated that the basic principle behind the enactment of Section 16(c) of the Act r/w explanation 2 is that any person seeking the benefit of specific performance of contract must prove his readiness and willingness to perform his part of the contract from the date of suit. The Bench had quoted the judgment reported in 2006 (2) CTC 778 (SC) (H.P.Pyarejan vs. Dasappa). The Bench had quoted the judgment reported in 2006 (2) CTC 778 (SC) (H.P.Pyarejan vs. Dasappa). In the instant case also the plea of readiness and willingness was only an empty formality and has not been proved in substance. 34. The Honourable Supreme Court has time and again held that in a suit for specific performance compliance of the provisions of Section 16(c) of the Specific Relief Act, is a condition precedent for entertaining the relief irrespective of whether the defendant takes the plea that Section 16(c) of the Act. In the judgment reported in 1995(5) SCC 115 ( N.P.Thirugnanam vs. Dr.R.Jahan Mohan Rao and Others), the Honourable Supreme Court has observed as follows in paragraph No.5. “5. It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under Section 20 of the Specific Relief Act, 1963 ( for short “the Act”). Under Section 20, the court is not bound to grant the relief just because there was a valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” 35. In a recent judgment, the Honourable Supreme Court reported in AIR 2019 SC 1178 (Mehboob-ur-Rehman (Dead) through L.Rs. vs. Ahsanul Ghani), this position is once again reiterated at paragraph No.15, which reads as follows: 15. Such a requirement, of necessary averment in the plaint, that he has already performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him being on the plaintiff, mere want of objection by the defendant in the written statement is hardly of any effect or consequence. The essential question to be addressed to by the Court in such a matter has always been as to whether, by taking the pleading and the evidence on record as a whole, the plaintiff has established that he has performed his part of the contract or has always been ready and willing to do so. In this regard, suffice it would be to refer to the principles enunciated by this Court in the case of Umabai (Supra) as under: 30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-respondents were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records. 45. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-respondents must be judged having regard to the entirety of the pleadings as also the evidences brought on records. 45. It was for the plaintiff to prove his readiness and willingness to pay the stipulated amount and it was not for the appellants to raise such question....” 36. Considering the fact that in a suit for specific performance, the plaintiff is required to show his readiness and willingness, though the plaintiff has proved the execution of Ex.A1, however since he has failed to prove his readiness and willingness, he is not entitled to the discretionary relief of specific performance as held in the judgments cited supra. 37. In view of the above discussions, the substantial questions of law 1 to 3 are answered in favour of the plaintiff and the fourth substantial question of law is answered in favour of the appellants/defendants 2 to 5. The Second Appeal is allowed and the judgment and decree in A.S.No.29 of 2012 on the file of the Additional District and Sessions Court, Dindigul, is set aside and the judgment and decree dated 23.03.2011 in O.S.No.656 of 2002 on the file of the Additional Sub-Court, Dindigul, is hereby confirmed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is also closed.