The defendants 1 and 2 who have suffered a decree before the trial court are the appellants in this Appeal.
2. For the sake of convenience, the parties are referred to as plaintiff and defendants as has been arrayed in the suit.
3. The suit was filed by the plaintiff/first respondent herein for the relief of specific performance of the agreement of sale dated 04.12.2004 which she had entered into with the second defendant/second appellant herein. According to the plaintiff, the defendants 1 and 2 have agreed to convey the land measuring an extent of 3 1/4 cents with building thereon for a total sale consideration of Rs.7,25,000/-. On the date of agreement itself, the plaintiff paid a sum of Rs.5,000/- as advance. It was agreed that the plaintiff would adjust a sum of Rs.80,000/- borrowed by the grandfather of the first defendant Kandan apart from repaying a loan of Rs.2,75,000/- availed by the said Kandan from the third defendant bank. The agreement also refers to other debts payable by the defendants 1 and 2. It is also stated in the agreement that the defendants 1 and 2 shall obtain permission from the competent Court for sale of the property inasmuch as the first defendant is a minor and she had a vested interest in the property. As per the agreement, the time for performance of the contract was fixed as three months calculated from the date of which the factum of grant of permission was communicated to the plaintiff. It appears that the husband of the second defendant was paid a sum of Rs.45,000/- on 04.12.2004 for renewal of the usufructuary mortgage and the said amount was also agreed to be adjusted in the sale proceeds. Pursuant to the said agreement, the defendants 1 and 2 filed an application in O.P. No.115 of 2004, seeking permission to sell the suit property. The said Original Petition was ordered on 07.07.2005 granting permission to sell the suit property and to deposit the minor's share in any Nationalised Bank and the remaining amount to be paid towards discharge of the debts. As against the said order, the defendants 1 and 2 have filed I.A.1102 of 2005, seeking review of the said order. Pending I.A. No. 1102 of 2005, the father of the first defendant and husband of the second defendant Venkatesh died on 13.11.2005. Even during the pendency of the review application in I.A.No.1102 of 2005, the plaintiff had issued a notice on 11.04.2007, seeking specific performance. On 14.05.2007, the defendants 1 and 2 have sent a false and evasive reply. On 21.05.2007, the plaintiff also issued a notice to the third respondent bank. Since the second defendant, who has to execute the sale deed on her own behalf and on behalf of the minor first defendant, has refused to execute the sale deed, the plaintiff has filed the above suit on 08.06.2007. After the plaintiff had instituted the suit, the Review Application filed by the defendants was dismissed on 12.10.2007. Thereafter, the plaintiff had deposited a sum of Rs.4,44,000/- to the credit of O.P.115 of 2004 on 30.11.2007 to show that she is always ready and willing to perform her contract but the defendants 1 and 2 have failed to perform their part of the contract.
4. The suit was resisted by the second defendant contending that she has only possessory right over the suit property and she has no saleable right. The first defendant denied having entered into an agreement of sale with the plaintiff for selling the suit property. The father in law of the second defendant Kandan has received a sum of Rs.80,100/- from the plaintiff's and leased out a portion of the property in favour of her husband. Apart from the plaintiff's husband, one Charles has paid Rs.75,000/- and he was also given lease in respect of a portion of the property. This second defendant is only receiving the rent from the other tenants who are in occupation of the other portions of the suit property. On 08.07.2000, the father-in-law of the second defendant Kandan had executed a Will under which he had given life interest in the suit property in her favour and thereafter, the property shall devolve on the first defendant, his grand daughter. It was further stated by the second defendant that her husband died on 13.11.2005. According to the second defendant, her husband was a drunkard and taking advantage of the same, the husband of the plaintiff has obtained his signature in certain blank papers which was used to create the forged agreement of sale 14.12.2004. In such circumstances, the question of the readiness and willingness of the second defendant will not arise.
5. During trial, the learned Additional District Judge (FTC-II), Coimbatore framed the following issues:-
1. Whether the suit agreement dt. 04.12.2016 is true and valid.
2. Whether the suit is bad for non-joinder of necessary parties.
3. Whether the plaintiff is entitled to claim the relief of specific performance.
4. Whether the plaintiff is entitled to grant of permanent injunction.
5. To What other relief the plaintiff is entitled for.
6. On the side of the plaintiff, she examined herself as P.W.1 and Exhibits A1 to A8 were marked. On the side of the defendants D.W.1 and D.W.2 were examined and Exs.B1 to B47 were marked. Upon consideration of the oral and documentary evidence, the learned Trial Judge concluded that the agreement of sale dated 14.12.2004 is true and valid. He also found that the plaintiff has been ready and willing to perform her part of the contact. On the above findings, the trail Court decreed the suit. It is against the said judgment and decree the defendants 1 and 2 have come up with this appeal.
7. During the pendency of this appeal, the first defendant/first appellant attained majority and hence she has been declared as a major.
8. I have heard Mr.K.S.Karthik Raja, learned counsel for the appellants and Mrs.Chithra Sampath, learned senior counsel appearing for the first respondent and Mr.P.Subramanian, learned counsel for second respondent.
9. Even though counsel for both sides made rival claims regarding the subsistence of the mortgage over the suit property in favour of the third defendant. I am of the view that since the said mortgage is not the subject matter of the present proceedings, the same need not be gone into.
10. Mr.K.S.Karthik Raja, learned counsel appearing for the appellant contended that the trial Court erred in holding that the sale agreement is true and valid. According to the learned counsel, the plea in the written statement to the effect that the said agreement was brought about by the husband of the plaintiff, by taking advantage of the drinking habit of the husband of the first appellant Venkatesh was grossly ignored by the trial court. The learned counsel would also contend that for the purpose of medical expenses, the second defendant has borrowed Rs.5,000/- from the plaintiff and it cannot be construed as an advance for conveying the suit property. On the date of execution of the alleged agreement of sale, a usufructuary mortgage was also created on payment of Rs.45,000/- by the husband of the plaintiff which would raise serious doubt about the genuineness of the agreement. It is also contended that there are nearly 30 tenements in the suit property. The rental income received from the suit property is more than sufficient for the family and therefore there was no necessity for the defendants 1 and 2 to alienate the property, It is further stated that even after the order was passed in O.P.115 of 2007, as per the alleged agreement of sale, the plaintiff did not perform her part of the contract and therefore, it would show that the plaintiff was not ready and willing to perform her part of the contract.
11. Per contra, Mrs.Chithra Sampath, learned Senior counsel appearing for the plaintiff/respondent would contend that the defendants 1 and 2/appellants have not come with clean hands and they have suppressed material facts. She would contend that the O.P.115 of 2004 was filed by the second defendant and her husband. Relying upon the order in the said O.P.No.115/2004, marked as Ex.A2, the learned Senior counsel would contend that the plaintiff was made as a respondent in that application as she was an agreement holder and therefore, according to her, the agreement of sale in favour of the plaintiff was admitted in the proceedings in OP No. 115 of 2004. The husband of the second defendant Venkatesh was also examined as a witness and he had also produced documents relating to the debts due by Kandan as exhibit in the said proceedings. The learned Senior counsel would also point out that upon filing of the review application in I.A.No.1102 of 2005, the second defendant was examined in Court on 20.07.2006, wherein also she had accepted the agreement and had sought for review of the order directing deposit of Rs.4,44,000/-. In fact, the second defendant has also produced the passbook and the document relating to the mortgage in favour of the Coimbatore City Co-operative Bank Ltd., as Exs.A1 and A2. In the said Review Petition, the second defendant was also examined and her deposition was marked as Ex.A8 in this suit. The learned Senior counsel also invited my attention to the evidence of the second defendant as D.W.1, wherein she had admitted having visited the office of the counsel Mr. Mayilsamy and having filed certain proceedings. She would claim that she had not instructed the counsel to file the Original Petition seeking permission to sell the property. She would further claim that after the death of her husband, she had got the papers from Mr. Mayilsamy and has handed over the same to the present counsel. It is an admitted fact that Venkatesh husband of the second defendant, died on 13.11.2005. Referring to Ex.A8, wherein the second defendant has deposed in the proceedings in I.A.No.1102 of 2005 in O.P.No.115 of 2004 on 20.07.2016, the learned senior counsel would contend that the second defendant has deposed falsely before the trial Court and her evidence is contrary to Ex.A8.
12. Mrs. Chithra Sampath, learned Senior counsel for the plaintiff/respondent would also contend that the O.P. was disposed on 07.07.2005, directing deposit of Rs.4,44,000/-. Immediately I.A.1102 of 2005 was filed by the defendants 1 and 2, seeking review of the said order. Even during the pendency of the review petition the plaintiff has issued a notice and thereafter instituted the present suit. The review application came to be disposed of on 12.10.2007, within two months thereof, the plaintiff had deposited the sum of Rs.4,44,000/- to the credit of the O.P. on 05.12.2007 itself. Therefore, according to the learned Senior counsel for the plaintiff, the plaintiff has proved that she was always ready and willing to perform her part of contract.
13. On the above contentions raised by the counsel for both sides, the following points are formulated for determination in this appeal:
1. Whether the sale agreement dated 04.12.2006 is true and valid?
The case of the plaintiff is that the agreement of sale was entered into on 04.12.2004, but the defendants 1 and 2 would deny the execution of the agreement itself. However, it is seen from Ex.A2 namely the order in O.P.No.115 of 2004 that the same has been filed even in the year 2004 that is almost immediately after the agreement seeking permission for sale of the property. The plaintiff namely the purchaser has been made a party to the said proceedings. The terms of the agreement have been said to out extenso in the said application.
15. The learned Subordinate Judge, while deciding the application, had granted permission for sale of the property in favour of the plaintiff herein for a consideration of Rs.7,25,000/-. However the learned Subordinate Judge had refused to recognize the mortgage debt due to the bank and had directed only a sum of Rs.2,81,000/- payable to the husband of the plaintiff and one Viswanathan to be deducted out of the sale consideration. The said order came to be passed on 07.07.2005. Soon thereafter, the second defendant along with her husband had sought for review of the said order claiming that the Court ought not to have directed to deposit of Rs.4,44,000/-, it should have permitted them to discharge the mortgage loan due to the Coimbatore City Co-operative Bank Ltd., from and out of sale consideration. It is in the said proceedings in I.A.No.1102 of 2005, the second defendant in this suit had appeared as a witness and deposed that the debt due to the bank may also be allowed to be deducted from the sale consideration. Her evidence is marked as Ex.A8 in the present suit. In Ex.A8, the second defendant has deposed as follows:-
vd; khkdhh; Vw;gLj;jpa fld;fis jpUk;g brYj;j ntz;Lk; vd;gjw;fhf kDr; brhj;jpd; xU gFjpia tpw;fntz;Lk;/ But in her cross-examination as D.W.1 in the suit, she has deposed as follows:-
"vd; fzth; kW Ma;t[ kD 1102/2005 vd;w kD nghl;lhh; vd;why; vd; fzth; kD nghlnt ,y;;iy/ gpd;dh; vd; fzth; ,we;j gpwF mjd; gpd; ehd; me;j kDtpy; ehd; rhl;rp brhd;ndd; vd;why; ,y;iy/ vd;dplk; fhl;lg;gLk; rhl;rp thf;FKyk; vd;DilaJ vd;whYk;. mjpy; ehd; ifbahg;gk; bra;Js;nsd; vd;W brhd;dhy; rhpay;y/"
16. It is very clear from the above evidence that the second defendant has admitted the agreement and was also ready and willing to execute the sale deed. Her only grievance was that the learned Subordinate Judge while granting permission had not recognized the mortgage amount, due and payable to the Coimbatore City Co-operative Bank Ltd. In the present proceedings D.W.1 has chosen of deny her signature in Ex.A8. However, during the later part of the cross-examination, she would depose as follows:-
"ehDk; vd; fztnuhL tHf;fwpQh; jpU/kapy;rhkp mYtyfj;jpy; ifbahg;gk; ,l brd;nwhk;/ vd;dplk; tHf;fwpQh; kapy;rhkp vd;d tpguk; vd;W nfl;lhh;fs;/ ehd; tpguk; brhd;ndd;/ ehd; brhd;d tpguj;ij itj;J tHf;F nghl;lhh;fsh vd;W vdf;Fj; bjhpahJ/ gpd;dh; ehDk;. vd; fztUk; tHf;fwpQh; mYtyfj;jpw;F vd;d tHf;F nghLfpwPh;fs; vd;W nfl;nlhk;/ vd; fzth; ,Uf;Fk;nghJ ,uz;L ngUnk ngha; nfl;nlhk;/ mjw;F tHf;fwpQh; brhj;ij tpw;gjw;F mDkjp nfl;L kD nghl;oUf;fpnwhk; vd;W brhd;dhh;fs;/ mjw;F ehq;fs; tPl;il tpw;f ntz;oa mtrpak; vq;fSf;F ,y;iy vd;W brhd;ndhk;/ tHf;fwpQh; kapy;rhkp Kyk; ,r;brhj;jpw;F rhl;rpak; brhy;ytpy;iy/ ehd; tHf;fwpQh; kapy;rhkp mYtyfj;jpw;F rhl;rpa[k; vJt[k; brhy;ytpy;iy/ vd; fzth; ,we;j clnd fl;il ehd; thq;fp te;Jtpl;nld;/ me;jf; fl;il thq;fp te;J vq;fs; jw;nghJ tHf;fwpQh; jpU/re;jpunkhfd; mth;fsplk; xg;gilj;njd;/"
17. This portion of the evidence of the second defendant falsifies her defence in the suit. The husband of the second defendant namely Venkatesh died on 13.11.2005. Her deposition was recorded in O.P.No.115 of 2004 on 20.07.2006 i.e. nearly 8 months after death of her husband. The above evidence would show that Ex.A1 agreement is true and valid and the second defendant herself had taken part in the proceedings seeking permission for sale of the property pursuant to the agreement under Ex.A1. She now wants to wriggle out of the contract by falsely claiming as though she never took part in those proceedings. Ex.A8 is the certified copy of the deposition, which has been recorded by a Court during judicial proceedings. A mere denial without any supporting evidence on the part of the second defendant, in my considered opinion, would amount to an accusation against the Court and accepting such denial would reduce the sanctity of Court proceedings. This conduct of the second defendant is nothing but an attempt to suppress the material facts.
18. In the light of the above, I conclude that Ex.A1 agreement has been proved by un-impeachable documentary evidence and the case of the defendants 1 and 2 that Ex.A1 agreement is not true and valid and was brought about by the husband of the plaintiff cannot be believed.
19. Coming to the question of readiness and willingness, the agreement Ex.A1 provides for 3 months time to the plaintiff to perform her part of the contract from the date of communication of the order granting permission, it is a admitted fact that the permission was granted on 07.07.2005 and the defendants also accepted the said order. They were aggrieved only in so far as it relates to the direction to deposit a sum or Rs.4,44,000/- in the name of the minor. They wanted a direction to permit them to pay the debt due to the Coimbatore City Co-operative Bank Ltd., out of the sale consideration and hence, they had applied for review of the order in I.A.No.1102 of 2005. During the pendency of the said application, the husband of the second defendant died. It is also on record that the said I.A.No.1102 of 2005 was disposed of only on 12.10.2007 and immediately thereafter, the plaintiff has promptly deposited the amount to the credit of the O.P.No.115 of 2004. Therefore, the plaintiff had established her readiness and willingness and the delay if any had been caused only by the defendants 1 and 2 by filing the review application in I.A.No.1102/2004. I, therefore, find that the plaintiff was always ready and willing to perform her part of contract. If at all there is any delay, it is due to the defendants 1 and 2 in seeking review of the order passed in O.P.No.115 of 2004 and they cannot be allowed to complain against their own action and contend that the plaintiff was not ready and willing to perform her part of the contract.
20. In the light of the above conclusion I find no reason interfere with the judgment and decree of the trial court passed in O.S.547 of 2007. The appeal is dismissed confirming judgment and decree passed by the trial court. There shall be no order as to costs in this appeal.
elp 17.02.2017 Index:Yes/No Internet: Yes/No R.SUBRAMANIAN, J elp A.S.No.149 of 2010 17.02.2017 http://www.judis.nic.in