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2021 DIGILAW 575 (MAD)

G. Agilambal v. M. Elumalai

2021-02-19

G.JAYACHANDRAN

body2021
JUDGMENT : Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code, 1908, against the judgment and decree dated 09.10.2014 made in O.S.No.11 of 2009 on the file of the II Additional District and Sessions Judge, Vellore at Ranipet, Vellore District. 1. This Appeal suit filed by the defendant challenging the judgment and decree passed by the Trial Court in the suit filed for Specific Performance. 2. The sum and substance of the case is that the suit property belongs to the appellant herein. She entered into a sale agreement with the respondent on 30.08.2007 for sale consideration of Rs.14,00,000/- and advance of Rs.10,000/- was paid and it was agreed by the parties that the contract should conclude within six months. The respondent was ready and willing to perform his part of contract and called upon the appellant herein to produce the original title deed and the encumbrance certificate. To the legal notice dated 18.09.2007, there was no response from the appellant. Hence, the suit for specific performance was filed on 31.10.2008. The appellant herein inspite of receiving the suit summon failed to appear and contest the suit. Hence, he was called absent and set exparte. Exparte decree was passed on 15.06.2009 allowing the suit for specific performance. 3. The respondent herein, pursuant to the said exparte decree, deposited the balance sale consideration of Rs.13,90,000/- and sought for execution of sale deed. The appellant herein, thereafter filed an application to setaside the exparte decree. Her application filed under Order 9, Rule 13 of C.P.C., with delay was allowed by the trial Court on 20.06.2011. The said order was challenged by the respondent herein before the High Court in C.R.P.(PD)No.2873 and 2874 of 2011. The said revision petition was dismissed on 27.09.2011 with the following observations:- “3. It is unfortunate that the defendant engaged three layers one after another, but no one protected and safeguarded the interest of the old lady. It was only after she came to know about the exparte decree, moved applications under Order 9, Rule 13 of C.P.C., along with petition for condoning the delay that has been allowed by the Court below. On these facts, I do not find any error in the impugned order passed by the Court below. These Civil Revision Petitions are dismissed.” 4. On these facts, I do not find any error in the impugned order passed by the Court below. These Civil Revision Petitions are dismissed.” 4. The appellant herein thereafter filed written statement in which she contended that the property belonged to her husband Ganesan and after his demise, she and other legal heirs of deceased Ganesan succeeded the suit property and she resides in the suit property. However, she does not have exclusive right or title over it. The respondent approached her to rent out a portion of the property for his clinic. She agreed and fixed a monthly rent of Rs.1,000/-. The respondent herein paid Rs.10,000/- as advance. Her signature was obtained in the document by misrepresentation it as a rental agreement. The respondent did not occupy the rented portion, but sought time to start his clinic. Suddenly, the appellant received a notice from the respondent demanding particulars of the title deed of the suit property. Only then, she realised that the respondent has fabricated the document perpetrated to be a sale agreement executed by her. She never had intention to sell the suit property nor signed the document with the intention to sell it. 5. The Trial Court framed relevant issues and tried the suit. 6. The respondent and one A.K. Baseer, the attester of the sale agreement were examined as PW-1 and PW-2. In support of the plaintiff, six exhibits were marked. The defendant was examined as DW1. 7. The Trial Court held that the respondent was ready and willing to perform his part of contract. The contract was not completed only due to the fault and delay committed by the appellant. Having agreed to execute the sale deed as per the terms of the contract in the execution proceedings, the appellant is estopped from refuting the terms of the contract. 8. The appeal was preferred against the judgment and decree of the trial court on the ground that the alleged sale agreement[Ex.A1] was signed by the appellant believing it to be the rental agreement. The suit property is the joint family property of her husband late Ganesan. Her sons and daughters are residing in the suit property and entitled for share in it. Therefore, the alleged sale agreement is not valid. 9. The suit property is the joint family property of her husband late Ganesan. Her sons and daughters are residing in the suit property and entitled for share in it. Therefore, the alleged sale agreement is not valid. 9. Being a dwelling house and the family members of the appellant are in joint possession and enjoyment of the property, the appellant cannot sell the property unilaterally. Ex.A1-sale agreement obtained by misrepresentation is void. 10. The appeal was filed with 402 days delay and numbered as A.S.No.573 of 2003, after condonation of the said delay. It was dismissed for default on 13.04.2018 and the same was restored, after payment of costs of Rs.2000/- to the Tamil Nadu State Legal Services Authority for condoning the delay of 428 days in filing the restoration petition. 11. According to the learned counsel appearing for the appellant, the suit for specific performance is not maintainable, since the sale agreement [Ex.A1] is not a bilateral agreement. It was prepared by the respondent herein to suit his convenient without proper description of the property. The trial Court failed to properly examine Ex.A1-sale agreement. The fraud and misrepresentation played on the respondent has not been considered by the trial Court. 12. In support of his submission, the learned counsel appearing for the appellant relied upon the following judgments:- 1. Smt.Bismillah v. Janeshwar Prasad and others reported in (1990)1 Supreme Court Cases 207; 2. Santhakumari and another v. Lakshmiammal and others reported in 2004(2) CTC 259 ; 3. N.Balammal v. Perinbamuthu and others reported in 2009(2) CTC 45 ; and 4. M.Vijayakumari v. P.Sekar dated 17.02.2020 in A.S.No.613 of 2014 13. The learned counsel appearing for the respondent submitted that the appellant herein, after entering into the agreement and receiving the advance money, started evading to perform her part of contract. Hence, notice was issued but she refused to receive it. The returned postal cover and acknowledgement were marked as Exs.A2, A4 and A5. As per Ex.A1, the appellant agreed to sell the property for consideration of Rs.14,00,000/- and received advance money of Rs.10,000/- on 18.09.2007. It was witnessed by A.K.Basheer and one Kanimozhi, granddaughter of the appellant. The appellant, in the cross examination, has admitted that she is capable of reading and writing. She has signed Ex.A1-agreement in English. She did not choose to examine her granddaughter Kanimozhi, who is one of the witness to the agreement. It was witnessed by A.K.Basheer and one Kanimozhi, granddaughter of the appellant. The appellant, in the cross examination, has admitted that she is capable of reading and writing. She has signed Ex.A1-agreement in English. She did not choose to examine her granddaughter Kanimozhi, who is one of the witness to the agreement. She wants to evade the performance of the contract and therefore, after conceding to the decree through her counsel, she filed the petition to set aside the exparte decree. 14. Before setting aside the exparte decree, the respondent herein had deposited the entire sale consideration. Later, the suit allowed after contest. The first appeal filed by her was dismissed for default. Thereafter, the execution petition was filed. In E.A.No.1 of 2019 in E.P.No.2 of 2015 the possession of the property has been delivered to the respondent. 15. Right from the date of entering into the contract, the appellant by one way or another protracting the litigation by allowing it to be dismissed for default and then, making false allegations, restore back on file and keep litigation going. Having agreed to sell the property and receiving advance of Rs.10,000/-, she did not contest the specific performance suit but after the exparte decree and deposit of entire sale consideration into the suit account on 6th August 2009, she instigated one of her granddaughter by name Vijayapriya and filed the suit for partition before the Sub Court, Arakkonam in O.S.No.34 of 2015 claiming that the suit property belongs to her grand father Ganesan and she as her daughter’s daughter entitled for 1/12th share. In the said suit, both the appellant herein and the respondent herein were arrayed as parties. The said suit was dismissed on 23.07.2018. No further appeal filed by the said Vijayapriya. 16. The suit property was purchased by the appellant on 24.03.1978 and the sale deed copy marked as Ex.A6. It was purchased in her name out of her income and been in her possession and enjoyed. Being her absolute property she entered into sale agreement with the respondent herein. She has not produced any document to show that it is a joint family property. In the connected Suit in O.S.No.34 of 2015 filed by Vijaya Priya, it has been held that the suit property is the exclusive property of the appellant namely, Agilambal. Being her absolute property she entered into sale agreement with the respondent herein. She has not produced any document to show that it is a joint family property. In the connected Suit in O.S.No.34 of 2015 filed by Vijaya Priya, it has been held that the suit property is the exclusive property of the appellant namely, Agilambal. Therefore, the contention of the appellant that the suit property is the joint family property is unsustainable and rightly rejected by the trial Court since there is no evidence to prove the same. 17. To fortify his submission, the learned counsel appearing for the respondent rely upon the following judgments:- (1) Navaneethakirshnan and others v. S.A.Subramania Raja reported in 2011(2) CT 727; (2) Debendranath Mohanty v. Annapurana Mohanty reported in AIR 1996 Orissa 89; (3) K.Prakash v. B.R.Sampath Kumar reported in 2014(6) CTC 88; and (4) Zarina Siddiqui v. A.Ramalingam alias R.Amarnathan reported in 2014 (6) CTC 319. 18. Point for determination:- Whether the judgment of the trial Court is sustainable under law and equity? 19. The main contention of the appellant is that, she had no consensus ad idem. The signature in Ex.A1-sale agreement was obtained from her by misrepresentation. The character of the document does not go with her mind while signing the document. Since the said contention is contrary to the content of the document, the burden of proving the contrary is upon the appellant. As seen by the record, the appellant has not adduced any evidence, except oral evidence. Her deposition regarding Ex.A1 bristles with inherent contradictions. To point few, she does not even admit that one of the attesters to the document namely, Kanimozhi is her granddaughter. She retract in her evidence during the cross examination and says that her granddaughter name is Geetha and not Kanimozhi. Her lie on oath before the Court could be seen from the cause title of O.S.No.34 of 2015 filed by Vijayapriya wherein the said Kanimozhi is arrayed as 6th defendant. The Court take judicial notice of this document namely, the judgment copy dated 23.07.2018 passed in O.S.No.34 of 2015 for the said limited purpose. She admits that she is capable of reading and writing but now lost her vision. Ex.A1 is the two page document containing the intention of conveying the property to the respondent for particular consideration. The property is also described in the schedule. She admits that she is capable of reading and writing but now lost her vision. Ex.A1 is the two page document containing the intention of conveying the property to the respondent for particular consideration. The property is also described in the schedule. Though the learned counsel for the appellant contends that the description of the property is inadequate to identify, the appellant herein had not said anything about the description of the property or identity of the property. Her only contention is that she executed Ex.A1 as a rental agreement. In the cross examination, she admits that on the date of executing Ex.A1, there was no portion available with her to let out for rent. The two shops were occupying by her tenants for nearly 15 years and in the remaining portion she was in occupation. Therefore, to infer or doubt the character of the Ex.A1 that the document might have been executed as a rental agreement, there is no iota of evidence. 20. Regarding the ready and willingness, it is borne by record that the respondent herein soon after the exparte decree had deposited the balance sale consideration as early as 06.08.2009. 21. In Zarina Siddiqui v. A.Ramalingam alias R.Amarnathan reported in 2014 (6) CTC 319, the Hon’ble Supreme Court held that: “34. The equitable discretion to grant or not to grant a relief for Specific Performance also depends upon the conduct of the parties. The necessary ingredient has to be proved and established by the plaintiff so that discretion would be exercised judiciously in favour of the plaintiff. At the same time, if the defendant does not come with clean hands and suppresses material facts and evidence and misled the Court then such discretion should not be exercised by refusing to grant Specific Performance.” 22. In view of the above discussion, this Court upholds the judgment and decree of the trial Court viz., II Additional District and Sessions Court, Vellore at Ranipet, in O.S.No.11 of 2009 dated 09.10.2014 and this Appeal Suit is dismissed as devoid of merits. 23. In the result, this Appeal Suit is dismissed as devoid of merits. No order as to costs. Consequently, connected Miscellaneous Petition is closed.