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2022 DIGILAW 844 (MAD)

S. Krishnasami (Died) v. R. Marappan

2022-04-06

N.ANAND VENKATESH

body2022
JUDGMENT (Prayer in S.A.No.217 of 2012: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.62 of 2011, on the file of the Principal District Judge, Namakkal, dated 23.08.2011 confirm the Decree and Judgment passed in O.S.No.623/2003 on the file of Sub Court, Namakkal dt.29.07.2010. S.A.No.218 of 2012: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.63 of 2011, on the file of the Principal District Judge, Namakkal, dated 23.08.2011 confirm the Decree and Judgment passed in O.S.No.651/2003 on the file of Sub Court, Namakkal dt.29.07.2010.) Common Judgment 1. The issue involved in both the Second Appeals are common and hence they are heard together and disposed of through this Common Judgment. 2. The 1st defendant in the suit was the appellant in both the Second Appeals. On his demise during the pendency of the Second Appeal, his daughters have been substituted as the appellants in both the Second Appeals. 3. The 1st respondent in both the Second Appeals were the plaintiff in the suit. The husband is the plaintiff in O.S. No. 623 of 2003 which is the subject matter in S.A. No. 217 of 2012. The wife is the plaintiff in O.S. No. 651 of 2003 and the same is the subject matter in S.A. No. 218 of 2012. The facts of the case in both the suits are identical and hence, it would suffice if the facts of the case in O.S. No. 623 of 2003 is taken as the basis for deciding these Second Appeals. 4. The case of the plaintiff is that the suit property is an ancestral property of defendants 1 to 3. These defendants were in urgent need of money and hence borrowed money from both the husband and wife. It is stated that they had borrowed to the tune of Rs. 4,50,000/- from each plaintiff. They wanted to discharge their debts and hence agreed to sell the suit property in favour of the plaintiff for a total sale consideration of Rs.4,75,000/-. These defendants were in urgent need of money and hence borrowed money from both the husband and wife. It is stated that they had borrowed to the tune of Rs. 4,50,000/- from each plaintiff. They wanted to discharge their debts and hence agreed to sell the suit property in favour of the plaintiff for a total sale consideration of Rs.4,75,000/-. Hence, they entered into a sale agreement dated 18.4.2000 with the plaintiff whereby the sum of Rs.4,50,000/- borrowed from each plaintiff was adjusted towards the advance amount and the balance Rs.25,000/- was agreed to be paid to defendants 1 to 3 on or before 17.4.2003 and at which point of time, the sale deed has to be executed in favour of the plaintiff. 5. The further case of the plaintiff is that the sale agreement itself envisaged that defendants 1 to 3 will execute the sale deed in favour of the plaintiff along with the daughters of the 1st defendant. According to the plaintiff, the defendants were evading from receiving the balance sale consideration and were not coming forward to execute the sale deed. Hence a legal notice dated 10.4.2003 was issued to the defendants calling upon them to be present at the office of the Sub Registrar on 17.4.2003 to receive the balance sale consideration and execute the sale deed in favour of the plaintiff. Since the defendants did not act upon the legal notice, the suit came to be filed on 6.8.2003 seeking for the relief of specific performance and for a permanent injunction restraining the defendants from encumbering the suit property. 6. The 3rd defendant filed a written statement and it was adopted by the 1st and 2nd defendants in both the suits. The 3rd defendant took a stand that the sale agreement dated 18.4.2000 was taken from defendants 1 to 3 through compulsion and force and in fact it was a fabricated document. It was further contended that the sale agreement is not supported by any consideration and the sale agreement is an unenforceable document. The defendants took a stand that they never intended to sell the suit property in favour of the plaintiff and sought for the dismissal of the suit. 7. Both the Courts below on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, concurrently held in favour of the plaintiff and decreed the suit. 7. Both the Courts below on considering the facts and circumstances of the case and on appreciation of the oral and documentary evidence, concurrently held in favour of the plaintiff and decreed the suit. Aggrieved by the same, the 1st defendant has filed these Second Appeals. This Court while admitting the Second Appeal, framed the following substantial questions of law: 1) Whether the courts below were right in granting a decree of specific performance of a sale agreement, compelling the parties, who were not parties either to sale agreement or to the suit. 2) Whether the courts below were right in decreeing the suit, when minors share is involved, particularly after the partition deed dated 07.06.1994 without obtaining the court permission under Section 8 of the Hindu Minority and Guardianship Act. 3) Whether Ex.A1 cannot be enforced as the shares in the coparcenery property of 1) Samundeshwari 2) Kasthuri, the daughters of the D1, are not signatories in the sale agreement. 4) Is it correct that the equitable relief of Specific Performance cannot be granted as Ex.A1 is a fictitious document in respect of the undivided ½ share of the suit property, since on the same day another similar sale agreement has been created in respect of remaining undivided ½ share in favour of the wife of the respondent. 8. Heard Mr.A.Thiyagarajan, learned counsel for appellant and Mr.T.L.Thirumalaisamy, learned counsel for the 1st respondent. This Court also carefully went through the materials available on record and the findings rendered by both the Courts below. 9. In the present case, the defendants questioned the tenability of the sale agreement dated 18.4.2000 and took a very specific stand that the said agreement is unenforceable. To substantiate the same, the learned counsel for the appellant made his submissions on the following issues: a) The agreement on the face of it is unnatural since it is said to have been entered into on 18.4.2000 by fixing the total sale consideration at Rs.4,75,000/-. Out of this amount, Rs.4,50,000/- was adjusted towards the alleged loan amount taken by D1 to D3. For paying the balance of Rs.25,000/-, the agreement fixed time upto 17.4.2003 which is nearly three years from the date of the agreement. There was no reason as to why three years time must be fixed for paying a paltry amount of Rs.25,000/- when the plaintiff was claiming himself/herself to be possessing sufficient means. For paying the balance of Rs.25,000/-, the agreement fixed time upto 17.4.2003 which is nearly three years from the date of the agreement. There was no reason as to why three years time must be fixed for paying a paltry amount of Rs.25,000/- when the plaintiff was claiming himself/herself to be possessing sufficient means. This by itself shows that the loan transaction was misused and the defendants are compelled to sell their property. b) The plaintiff was never ready and willing to perform his/her part of the contract. The sale agreement is dated 18.4.2000 and there is absolutely no evidence to show that the plaintiff took any efforts to pay the balance sale consideration of Rs.25,000/- till the legal notice was issued on 10.4.2003. The suit was filed on 6.8.2003. When the decree was passed in the suit, one month time was given for depositing the balance sale consideration and the amount had not been deposited as directed by the Trial Court. c) Admittedly the property is an ancestral property. Apart from the defendants 1 to3, the 4th and 5th defendants who are the children of the 3rd defendant and the daughters of the 1st defendant also have a share in the property. The sale agreement nowhere states that the agreement of sale is entered into for the welfare of the minor children. That apart, the daughters were not even a party in the sale agreement. Therefore, the sale agreement cannot bind the 4th and 5th defendants who are the children of the 3rd defendant and also the daughters of the 1st defendant. d) The 4th and 5th defendants were represented by their father and natural guardian who was the 3rd defendant in the suit . The 3rd defendant died during the pendency of the suit and his wife was impleaded as the 6th defendant. However after the death of the 3rd defendant, no one was appointed to act as a guardian and to prosecute the suit on behalf of the 4th and 5th minor defendants. Therefore, the proceedings are nullity insofar as the 4th and 5th defendants are concerned and e) The lower Appellate Court has not considered any of the grounds and has mechanically upheld the judgment of the Trial Court without fulfilling the mandate under Order XLI Rule 31 of C.P.C. 10. This Court carefully went through the findings of the lower Appellate Court. This Court carefully went through the findings of the lower Appellate Court. The judgment of the lower Appellate Court is thoroughly disappointing. There is absolutely no discussion on any of the issues and the lower Appellate Court has mechanically confirmed the Judgment and Decree of the Trial Court without assigning reasons for the grounds raised by the defendants. The slipshod manner in which the Judgment has been given will be clearly apparent if the same is extracted hereunder: “The counsel for the appellant submitted as, the sale agreement was executed not with an intention to sell the property and further, the sale agreement was executed, and for the meagre amount of balance sum of Rs.25.000/-. 3 years period agreed is unusual and the plaintiff is not entitled to discretionary relief of specific performance of the contract. To emphasis this principle, the counsel for the appellant, also cited authority, CDJ 1997 Supreme Court page 1347, the relevant facts of the case, and the principle laid down, as follows: The admitted facts are that the appellant had 22.38 acres of land in Village Gondia. A document purporting to be an agreement of sale was executed on 20.4.1972 for the sale of 11.76 acres out of the said land for a consideration of Rs.50,000/-. The recital therein and an endorsement on the fact of it is to the effect that sum of Rs.48,000/- was received as, consideration for sale of the said lands, and balance of Rs. Rs.2000/- was required to be paid within one year and a sale deed was required to be executed thereon Since, sale deed was not executed within one month prior to the date of the expiry of 3 years’ period from the date of agreement on 13.3.1975, the respondent got issued the suit notice calling upon the appellant to execute the sale deed. On failure thereof, he filed the suit on the last day of the limitation. The trial court dismissed the suit. But, on appeal, the High Court, while rejecting the relief of specific performance, directed payment of sum of Rs.62,280/- inclusive of the Principal sum of Rs.48,000/-, interest accrued thereon and cost plus 6 % futureon the principal amount of Rs.48,000/-. Thus, this appeal by special leave... The trial court dismissed the suit. But, on appeal, the High Court, while rejecting the relief of specific performance, directed payment of sum of Rs.62,280/- inclusive of the Principal sum of Rs.48,000/-, interest accrued thereon and cost plus 6 % futureon the principal amount of Rs.48,000/-. Thus, this appeal by special leave... If it is a true sale transaction and the respondent being a business man and having purported to have Rs.48,000/-one would except that he would seek possession of he would pay the balance consideration and request for execution of the sale deed instead, he kept quite for full 3 years. We that if may, it would appear that there was money transaction between the appellant and respondent and the respondent, being a money lender, was taking documents purporting to be a agreement of sale, from the loanees, in the event of loanees, failure to pay the loan amount along with interest stipulated by him, the document would, obviously, be executed, with a view to enforce the repayment of loan and interest accrued thereon. It is unlikely that being a moneylender and having parted with Rs.48,000/- and cash, he would have kept quite either for seeking possession of the property or payment of Rs.2000 immediately and then sought specific performance, it would be unlikely in the normal circumstances that he would have waited for 3 years for issuing notice and then filing suit on the last date. Under these circumstances the court below rightly came to the conclusion that it is not an agreement for sale purports to be a sale in truth, and in reality. It is seen that in the above case law, the agreement was only for about 50,000/-rupees and the balance of Rs.2000/- is to be paid within 3 years and to get execution of sale deed. In the circumstances Hon’ble SC held as, it is loan transaction and not sale agreement. But, here in this case, the defence of the defendants is that the defendants borrowed sum of Rs. 3,00,000/- from the plaintiff in the year 1998 and at the time of borrowal, the plaintiff received signatures and thump impressions of the defendants, in empty stamp papers. But, here in this case, the defence of the defendants is that the defendants borrowed sum of Rs. 3,00,000/- from the plaintiff in the year 1998 and at the time of borrowal, the plaintiff received signatures and thump impressions of the defendants, in empty stamp papers. Further, DW1 stated as, on 14.4.2000, the plaintiff’s henchmen came to the house of the defendants, and obtained signatures, in unfilled stamp papers by coercion and further, after two days, the defendants I to 3, D1’s daughter in law were taken to Registrar Office and compulsory registration was done. It is seen that the incident on 14.4.2000 i.e., obtained signatures by coercion, and incident after two days, the compulsory registration is a very serious matter and the defendants they have not given any of the police complaint to show that they were coerced and compelled. Further, here in this case, it is seen that on the date of agreement, nearly Rs.4,50,000/- advance sum was adjusted towards the discharge of debts incurred by the defendants. By this circumstances, it is seen that, both plaintiff and defendant would have agreed, to perform the sale agreement within a period of 3 years with a view to discharge the debts incurred by the defendants. Hence, the authority cited by the counsel for the appellant, the facts, not squarely applicable to this case. Taking into consideration of all the facts and circumstances, evidences and documents, and on perusal of trial court judgment, this court is of the view the there is no infirmities in the judgment of the trial court O.S No 651/03 dt 29.7.2010 and there is no merits in the appeal and the appeal is dismissed.” 11. The lower Appellate Court has not even cared to frame the points for determination which is mandatory under Order XLI Rule 31 of C.P.C. There are so many issues on fact and law which required the careful consideration of the lower Appellate Court and the lower Appellate Court failed in its duty thoroughly and as a result of the same, this Court has to necessarily remand the matter back to the file of the lower Appellate Court. 12. This Court exercising its jurisdiction under Section 100 of C.P.C., cannot re-appreciate evidence and render findings on factual issues. 12. This Court exercising its jurisdiction under Section 100 of C.P.C., cannot re-appreciate evidence and render findings on factual issues. That exercise is expected to be done by the lower Appellate Court and the only jurisdiction that has been assigned to this Court is to see if any substantial questions of law are involved in the Second Appeal. It is true that perverse findings which is not in line with the evidence available on record, can also be interfered in a Second Appeal. However, to undertake that exercise, there must be appreciation of evidence and reasons assigned for rendering the findings. In the absence of the same, that task cannot be taken upon by this Court. 13. The substantial questions of law that were framed by this Court at the time of admitting the Second Appeals need not be answered by this Court since it will touch upon the merits of the case and since this Court is inclined to remand the matter back to the file of the lower Appellate Court. This Court is compelled to remand the matter to the file of the lower Appellate Court since the judgment of the lower Appellate Court is bereft of any reasons and it is in complete violation of the mandate fixed by Order XLI Rule 31 of C.P.C. Considering the time already spent in this litigation, this Court will fix a time limit for the lower Appellate Court to complete the hearing and to deliver the final Judgment in the appeal. 14. In the result, the Judgment and Decree of the lower Appellate Court made in A.S. No. 62 of 2011 and A.S. No. 63 of 2011, dated 23.8.2011 is hereby set aside. The matter is remanded back to the file of the Principal District Judge, Namakkal. The Principal District Judge, Namakkal is directed to hear the appeal afresh by affording opportunity to both the sides and consider every ground raised on fact and law and assign reasons after framing the points for consideration. The final Judgment shall be delivered in both the appeals on or before 15.7.2022 and the compliance shall be reported to this Court. 15. Accordingly, both the Second Appeals are allowed in the above terms. Considering the facts and circumstances of the case, there shall be no order as to cost. All connected petitions shall stand closed. The final Judgment shall be delivered in both the appeals on or before 15.7.2022 and the compliance shall be reported to this Court. 15. Accordingly, both the Second Appeals are allowed in the above terms. Considering the facts and circumstances of the case, there shall be no order as to cost. All connected petitions shall stand closed. The Registry is directed to immediately send back the original records to the Principal District Judge, Namakkal.