The defendant in the suit in O.S.No.38 of 1988 on the file of the Sub Court, Devakottai, is the appellant in the above appeal. Since the sole appellant died during the pendency of this appeal, the appellants 1 and 2 are brought on record as the legal representatives of the deceased sole appellant.
2.The suit in O.S.No.38 of 1988 was filed by the sole respondent for specific performance of an agreement of sale dated 25.08.1986 and alternatively for directing the defendant to pay the plaintiff in the suit a sum of Rs.49,240/- with future interest at the rate of 12% per annum for the amount of Rs.40,000/-. The suit is also for directing the defendant to pay a sum of Rs.8,000/- for the use and occupation of the suit property from 25.08.1986 till 01.01.1988 and for other consequential reliefs.
3.The brief facts set out in the plaint are as follows:
3.1.The suit property belonged to the defendant by virtue of the sale deed dated 12.02.1979. The defendant entered into an agreement of sale with the plaintiff on 25.08.1986 in respect of the suit property for a consideration of Rs.50,000/-. Even on the date of agreement i.e., on 25.08.1986, the defendant received an advance amount of Rs.40,000/- and it was agreed that the balance amount of Rs.10,000/- should be paid at the time of registration of the sale deed. Of course, the sale agreement was in writing and the defendant signed therein.
3.3.Even the son and daughter of the defendant did not object to the sale agreement, as the defendant intended to discharge the pressing liabilities of the family with the advance amount received from the plaintiff. The defendant orally agreed to register the sale within a period of three months from the date of agreement. However, the defendant was unnecessarily delaying the execution of the sale deed under some pretext or the other even though the plaintiff was always ready and willing throughout to perform her part of the sale agreement. The plaintiff is also willing to deposit the balance of sale consideration any time the Court wants. Even though the defendant agreed to hand over the possession of the suit property, the possession was not handed over to the plaintiff. The plaintiff has sufficient and substantial means to purchase the property and the plaintiff's husband is carrying on whole sale business in ever-silver products and her father-in-law is running three hotels. In case, the plaintiff is not entitled to the relief of specific performance, the plaintiff is entitled to get back the advance amount of Rs.40,000/- which was paid to the defendant as part of the sale consideration with interest at the rate of 12% per annum from 25.08.1986.
4.The suit was contested by the defendant by filing a detailed written statement. The case of the defendant can be briefly summarised as follows:
4.1.The agreement of sale dated 25.08.1986 is false and imaginary. Even during the life time of the defendant's husband, the defendant's daughter was given in marriage. During September, 1978, the elder sister of the plaintiff was given in marriage to the defendant's only son. Since the defendant is a widow, the defendant lived with her son and daughter-in-law in the suit house.
4.2.During 1986, the officials of the Karaikudi Municipality inspected the suit house and increased the property tax to Rs.375/-. For the purpose of reducing the property tax, this defendant gave the original document of the property and signed a stamp paper and two signed green papers and handed over the same to the only son of the defendant in July, 1986. Believing that the defendant's son would not do any harm to the defendant, the defendant gave the signed blank stamp papers and signed blank papers along with the title deeds for the purpose of his son to make arrangements for reducing the property tax. However, the blank stamp papers and other signed papers were utilised for fabricating the sale agreement with the connivance of the defendant's elder son, her daughter-in-law and others. The creation of the sale agreement is designed to defraud the defendant and to grab the suit property. The defendant came to know about the fraud only after receiving summons from the Sub Court, Devekottai.
4.3.The defendant's daughter-in-law and her son have been requesting for changing the suit property in their name from August, 1986. However, even after giving assurance to them to get the name transfer after the life time of the defendant, the defendant's son and daughter-in-law have concocted the sale agreement with recitals acknowledging receipt of a sum of Rs.40,000/- under the agreement. There was no agreement between the plaintiff and the defendant at any point of time. The defendant never borrowed any money from any one and there was no necessity for raising any loan for the defendant. This defendant is under the care and maintenance of her own brother from the date of death of defendant's husband. All other allegations in the plaint are specifically denied.
5.The specific case in the plaint that the defendant had agreed orally to execute the sale deed within three months from the date of receipt of the sale consideration, is also denied by the defendant. It is further contended that the plaintiff did not have the wherewithal to purchase the suit property and that the suit property was not required for the plaintiff. It is also pleaded that only to threaten the defendant and to give the suit property to the brother-in-law and sister of the plaintiff, the suit has been filed by concocting the suit agreement.
6.The trial Court framed the following issues:
(1) Whether the suit agreement dated 25.08.1986 is true and valid?
(2) Whether the defendant is liable to pay the amount claimed by the plaintiff in the suit?
(3) Whether the plaintiff is entitled to the relief of specific performance?
(4) To what relief the plaintiff is entitled to in the present suit?
7.The plaintiff examined three witnesses and marked three documents. Ex.A1 is the sale agreement. Defendant examined herself as D.W.1 and filed the documents marked as Exs.B1 to B5. Though the execution of the suit agreement marked as Ex.A1 is specifically denied, the signature of the defendant in Ex.A1 is admitted. Hence, the trial Court put the burden on the defendant to prove her case that the signed blank stamp papers and two other papers were handed over only to the defendant's son for the purpose of making arrangement for reducing the property tax which was enhanced by the local body earlier. Considering the fact that the stamp papers were purchased in the name of the plaintiff and the fact that the stamp papers Ex.A1 was purchased only on 25.08.1986, the case of the defendant that the blank stamp papers singed by the defendant was given by the defendant to her son in July, 1986 was disbelieved by the trial Court. Since the stamp paper / Ex.A1 was purchased only on 25.08.1986 as pointed out by the trial Court, the defendant could not have handed over the signed blank papers in July, 1986. Further, the defendant has not produced any document to show that there was demand for enhancement of property tax prior to the suit agreement. The documents filed by the defendant under Ex.B3 is the special notice given by Karaikudi Municipality to the plaintiff. This notice marked as Ex.B3 is dated 28.10.1997. Hence, relying upon Ex.B3 and other evidence, the trial Court disbelieved the case of the defendant and accepted the case of the plaintiff that the suit agreement under Ex.A1 was truly executed by the defendant in favour of the plaintiff. Since the suit agreement is held to be valid and binding on the defendant, the trial Court accepted the case of the plaintiff that the defendant received a sum of Rs.40,000/- to discharge the liabilities of the defendant by placing reliance on the evidence of P.W.1 to P.W.3. After holding that the plaintiff was always ready and willing to perform her part of the contract, the trial Court found that the plaintiff is entitled to the relief of specific performance. The trial Court also considered the other issues and held them in favour of the plaintiff. Ultimately, the suit was decreed directing the plaintiff to pay a sum of Rs.10,000/- to the defendant within a period of one month. The trial Court also directed the defendant to hand over the possession of the suit property to the plaintiff within a period of one month from the date on which the plaintiff deposits the balance of Rs.10,000/- in Court. Aggrieved by the judgment and decree of the trial Court, the defendant has preferred the above appeal.
8.As pointed out earlier, the appellants 1 and 2 are now impleaded as legal representatives of the deceased sole appellant. The first appellant is the daughter and the second appellant is the only son. Though the same counsel was engaged by both the appellants and held vakalat for both the appellants, at the time of hearing this appeal, Mrs.S.Srimathy, learned counsel who has now filed change of vakalat submitted that the second appellant is not cooperating for conducting the case. The case of the defendant before the trial Court would clearly show that her whole defence is by making very serious allegations against the second appellant in manipulating the suit agreement dated 25.08.1986. Hence, non-cooperation by the second appellant as complained by the learned counsel who is holding vakalat for both the appellants cannot be taken serious note of especially having regard to the pleadings of the respective parties before the trial Court and the conclusions reached by the trial Court. Hence, uninfluenced by the submissions of either side, as against the conduct of the second appellant, this Court proceeded to hear and dispose of the appeal purely on merits.
9.The learned counsel for the appellant mainly advanced the following submissions:
9.1.The suit agreement filed under Ex.A1 is not a bona fide sale agreement and the trial Court has erroneously held the document Ex.A1 as a true and valid document binding on the defendant. The trial Court ought to have held that the burden lies only on the plaintiff to prove the due execution of the document Ex.A1 and the plaintiff has failed to discharge the burden in the present case to prove the due execution of Ex.A1. The trial Court ought to have considered the discrepancies in the evidence of P.W.1 to P.W.3 and ought to have held that the witnesses are not speaking the truth. The failure to examine the plaintiff as a witness is fatal to the case of the plaintiff, particularly to prove the readiness and willingness of the plaintiff to get the relief of specific performance. The father-in-law of the plaintiff who has been examined as P.W.1 is not competent to speak about the suit transaction and hence, the judgment and decree of the trial Court is liable to be set aside. The learned counsel for the appellant also relied upon the judgment of a Division Bench of this Court in the case of Pushparani Shanmughasundaram and two others v. Pauline Manonmani James and five others reported in 1993-1-L.W. 219 and the judgment of the Hon'ble Supreme Court in the case of Thiruvengada Pillai v. Navaneethammal and another reported in AIR 2008 SC 1541 wherein the Hon'ble Supreme Court has held that the burden to prove the execution of the agreement by the defendant is on the plaintiff and not on the defendant who deny the execution of the agreement specifically in the written statement. Finally it is also agreed that the plaintiff did not come forward to complete the sale within three months time as stated to have been agreed in the plaint.
10.The learned Senior Counsel appearing for the respondent referred to the findings of the trial Court and submitted that the findings of the trial Court on the issue regarding the genuineness of the suit agreement are unassailable. The learned Senior Counsel also relied upon a judgment of a Division Bench of this Court in the case of B.Nemi Chand Jain v. G.Ravindran reported in 2010 (2) CTC 751 and submitted that time is not the essence of the suit agreement and that the trial Court is perfectly justified in holding that the plaintiff / respondent was always ready and willing to perform his part of the contract and that the plaintiff having regard to the evidence in this case has proved that she is entitled to the relief of specific performance.
11.Since this Court heard the arguments mainly on the genuineness of the sale agreement Ex.A1, dated 25.08.1986, this Court has taken this issue as a main point for consideration.
12.In the written statement, the signature of the defendant in the document Ex.A1 is not denied. However, it is the case of the defendant that the suit agreement has been concocted using her signature which was obtained in a blank stamp paper by her own son under the pretext that the same is required by him to make arrangements for reducing the property tax fixed by the local body. It is relevant to extract the portion of the written statement filed by the defendant:
?(5).1986k; Mz;L ,e;jg; gpujpthjpapd; tPl;ow;F Tljyhf thp tpjpf;fg; nghtjhf fhiuf;Fo Kdprpgy; thptpjpg;g[ mjpfhhpfs; te;J ghh;itapl;L Vw;bfdnt ,Ue;j thp U/106/60 igrhit Tljyhf U/375-= vd nghl;;Ls;sdh;/ mjid khw;Wtjw;fhf xU !;lhk;g[ ngg;ghpYk; ,uz;L vGjhj gr;irf; fhfpjj;jpYk; ,e;jg; gpujpthjp ifbaGj;J nghl;L. tPl;od; fpiuag;gj;jpuj;ija[k; tPl;L thp urPija[k; (giHaJ) ,e;jg; gpujpthjpapd; xnu kfd; nfhtpe;juh$dplk; 1986k; Mz;L $%iy khjk; bfhLj;J cs;sdh;/ ,e;jg; gpujpthjpapd; kfd; vt;tpj jP';Fk; bra;a khl;lhh; vd;w ek;gpf;ifapy; mt;tpjk; fpiuag; gj;jpuj;ija[k;. ifbaGj;Jr; bra;j vGjhj !;lhk;g[ ngg;gh; kw;Wk; gr;irf; fyh; ngg;gh;fisa[k;. urPija[k; bfhLj;J thpf; Fiwg;g[f;F Vw;ghL bra;ar; brhd;djpy;. ,e;jg; gpujpthjpapd; kUkfs; kw;Wk; i&ahhpd; cwt[f;fhuh; ehuhazd; brl;oahhpd; J}z;Ljypd; nghpy; ,e;jg; gpujpthjp ifbaGj;Jr; bra;j vGjhj !;lhk;g[ kw;Wk; gr;irf; fyh; ngg;gh;fs; ,e;jg; gpujpthjpapd; kfd; trk; ,Ug;gij rhjfkhf vLj;Jf; bfhz;L ,e;jg; gpujpthjpapd; kfd;. kUkfs; i&ahhpd; rnfhjhpahd thjp nkny fz;l ehuhazd; brl;oahh; ,e;j gpujpthjpapd; kfDila rfiy vy;nyhUk; rjp Mnyhrid bra;J fpiua vf;hpbkz;L vGjpf; bfhLj;jJ nghy; jahh; bra;J bfhz;L ,Uf;fpuhh;fs;/ ,e;jg; gpujpthjpia nkhrk; bra;J brhj;ij mgfhpf;f jpl;lk; ,l;L i& fpiua vf;hpbkz;L jahhpj;J cs;shh;fs;/ ,e;j gpuhJf;F rkd; rhh;g[ bra;j gpd;ng thjp tifawh nkhro bjhpa te;J cs;sJ/?
13.From the reading of the written statement, it is clear that the specific case of the defendant is that the signed blank stamp paper and two signed blank papers were only handed over to the defendant's son in July, 1986. However, in this case, the stamp paper for the suit agreement Ex.A1, dated 25.08.1986 was purchased only on 25.08.1986. Hence, this document could not have been signed by the defendant and handed over by her to her son in July, 1986 as it was pleaded by the defendant. Hence, by her own case pleaded by the defendant, it can be said that the defendant has not pleaded the truth. Further, Ex.B3 would clearly show that under Ex.B1 dated 07.09.1988, the defendant received a notice from the Commissioner, Karaikudi Municipality, calling upon the defendant to appear for an enquiry in the Municipal office on 20.09.1988. This notice was in response to the petition that was filed by the defendant on 31.08.1988. Ex.B2 is the property tax receipt dated 23.07.1987. Ex.B3 is the special notice issued to the defendant under Rule 10 of Schedule IV to the District Municipalities Act, 1920. From the reading of Ex.B3, it was only by Ex.B3 the defendant was informed about the enhancement of the property tax from Rs.106/- to Rs.310/-. In such circumstances, the contention of the defendant that she gave signed blank stamp papers and signed blank papers in July, 1986 to enable her son to file petition before the local body for the reduction of property tax cannot be believed. Hence, the case of the defendant in paragraph 5 of her written statement is a false story.
14.It is true that the burden lies on the plaintiff to prove the execution of Ex.A1. In this case, the defendant admits the execution of Ex.A1 by admitting her signature in Ex.A1. When the defendant specifically pleaded that the document Ex.A1 was signed by her, but her signature was obtained only in a blank stamp paper, it is for the defendant to explain why and under what circumstance, the document Ex.A1 was signed when it was only a blank stamp paper. Since the defendant has specifically come up with a story, the burden lies on her to make her case believable or acceptable. When the defendant has failed in her attempt that she signed only in blank stamp papers for a specific purpose and this Court find that the story of defendant cannot be believed for very strong reasons, this Court has no other option but to conclude that the plaintiff has proved the due execution of Ex.A1 by the defendant. In this case, though the defendant has taken a stand that she executed Ex.A1 at the request of her son, it was not explained by the defendant by letting in proper evidence as to why her own son should take a sale agreement in favour of the plaintiff rather than getting the document in his own name or in the name of his wife. Secondly, the plaintiff has examined P.W.1 to P.W.3 to prove the passing of consideration under Ex.A1. P.W.1 is the father of plaintiff. P.W.1 is competent to speak about the transaction as it was P.W.1 who was present at the time of negotiation for Ex.A1 and his evidence can be relied upon. Failure to examine plaintiff is not fatal in the present case as the plaintiff has examined three witnesses to speak about the transaction. The entire consideration received under Ex.A1 has been utilised by the defendant to discharge her debts. The evidence of P.W.1 to P.W.3 would show that the facts pleaded by the plaintiff are true and probable. Since the case of the defendant in the written statement has been demonstrated to be false, the evidence of defendant as D.W.1 cannot be believed. Though the defendant has come up with a specific case that it was her own son who was involved in manipulating and concocting the suit agreement Ex.A1, the strong motive or reason for defendant's own son to manipulate the document Ex.A1 is not pleaded or explained by the defendant in the course of trial.
15.P.W.1 is the father of the plaintiff. P.W.2 is the attestor and it is alleged that he is also a relative of plaintiff. He has spoken to the execution of agreement and payment of Rs.40,000/- as advance. P.W.3 speaks about the discharge of certain debts by defendant out of the amount received by her as advance. This Court also considered the evidence of P.W.1 to P.W.3 and found that there is no material discrepancy that can dislodge the case of plaintiff or the evidence of her witnesses. Small discrepancies in the evidence of P.W.1 and P.W.2 regarding the value of stamp paper would only make this Court infer that the witnesses are not tutored. The discrepancies or contradictions are not material to disbelieve their version regarding the due execution, attestation and the bona fide nature of the suit agreement under Ex.A1. Hence, this Court hold that the suit agreement is a bona fide one executed by the defendant for valid consideration.
16.Having regard to the pleadings and arguments of Counsels on both sides, next issue that is required to be considered is whether the plaintiff was ready and willing to perform her part of the suit agreement and whether the plaintiff had sufficient means to pay the balance in terms of the suit agreement. In this case, the plaintiff has specifically pleaded in the plaint that she was always ready and willing to pay the balance and complete the sale as per the suit agreement. As per Ex.A1, suit agreement, total sale consideration was Rs.50,000/- and a sum of Rs.40,000/- has been paid as advance. This Court has already held that the plaintiff has proved the agreement and receipt of Rs.40,000/- as advance. No time limit was prescribed in the sale agreement. Though there is a recital in the agreement to the effect that the defendant had agreed to hand over possession, it is admitted that possession was not handed over. Hence the plaintiff has prayed for rental income and the trial Court has also partly granted relief by holding that the plaintiff is entitled to 4/5th of income to be determined as mesne profits under Order 20, Rule 12 C.P.C. The suit agreement was dated 25.08.1986. The suit has been filed on 29.07.1988. It is not in dispute that parties are relatives. Plaintiff's sister was married to defendant's son. There was no exchange of notices. However, it is specifically pleaded that though the defendant agreed orally to register the sale deed within three months, she was dragging on some pretext or other despite repeated requests. Regarding means, the plaintiff has specifically pleaded about the income from assets and business of her husband. Defendant has also admitted in her evidence about the affluence and resources of plaintiff to mobilise funds to the following effect.
thjpapd; fzth; kJiuapy; vth;rpy;th; fil itj;J ,Uf;fpwhh;. th.rh.1 kJiuapy; Xl;ly; elj;jp tUfpwhh; vd;gJ bjhpa[k;. vj;jid Xl;ly; vd;W bjhpahJ. thjpapd; je;ij knyrpahtpy; ,Uf;fpwhh;. thjpa[k; mth; fztUk; thjpapd; je;ija[k; thjpapd; khkpahUk; ey;y trjpa[ld; ,Uf;fpwhh;fs;.
17.Since the defendant has denied the execution of sale agreement, and described the sale agreement as one created to threaten her to transfer the property in favour of plaintiff's sister and her brother in law (defendant's son) no suggestion was put to PW1 about the readiness and willingness of the plaintiff to pay the balance and there is no specific denial in the written statement regarding the plea in the plaint about the repeated demands to execute the sale deed upon receipt of balance. The Trial Court did not frame a specific issue on the question of readiness and willingness thinking that there was no dispute. Since the agreement was denied in toto, an issue ought to have been framed. Going by the pleadings and evidence, this Court has no hesitation to hold that the plaintiff was always ready and willing to perform her part of the contract.
18.The next issue is whether the plaintiff is entitled to the equitable relief of specific performance. The learned counsel for the appellant submitted that the plaintiff has filed the suit nearly two years after the sale agreement and that the suit is liable to be dismissed on the ground of delay and laches. No time limit is prescribed in the sale agreement. Substantial amount of Rs.40,000/- representing 4/5th of total sale consideration was paid as advance. Since no specific denial in the written statement about the repeated requests of plaintiff to complete the sale as pleaded and no prejudice on account of delay is neither pleaded nor stated in evidence, this Court has no reason to accept the contention of appellant's counsel. When the plaintiff was ready and willing as found by this Court, the plaintiff is entitled to specific relief especially when no special circumstances is brought to the notice of this Court to refuse to exercise the discretion in favour of plaintiff. Learned Counsel for appellant submitted that 30 years have lapsed after suit agreement and that the prices have gone up. The suit property is a plot measuring 25 x 80 (2000 Sq.ft) with a residential house located within the limits of Karaikudi municipality. It was not pleaded that the consideration was inadequate. This Court, having regard to the entire facts is not in a position to hold that the contract gives the plaintiff an unfair advantage over the defendant or that the performance would involve great hardship to the defendant when compared to that of plaintiff. Since the plaintiff has prayed for alternative relief for return of money it was suggested by learned counsel for appellant that the plaintiff can be granted relief for the return of money. However, the prayer for alternative relief cannot justify rejection of relief of specific performance in this case, having regard to the facts and circumstances of this case. Hence, this Court find no reason to interfere with the findings of trial Court.
19.The trial Court has exercised the discretion properly and the conduct of defendant in this case in coming forward with a false case also prompts this Court to dismiss this appeal. However, taking into consideration the long delay in this litigation and to render complete justice, this Court direct the plaintiff to pay a sum of Rs.4,00,000/- instead of Rs.10,000/- by way of balance of sale consideration. Accordingly the appeal is partly allowed by modifying the judgment and decree of the trial Court in O.S.No.38 of 1988 on the file of Sub Court to the extent of directing the respondent/plaintiff to deposit a sum of Rs.4,00,000/- instead of Rs.10,000/- as balance of sale consideration within a period of three months from the date of receipt of the judgment of this Court. Upon such deposit, the appellants are directed to execute the sale deed within one month and on failure the respondent is entitled to get the sale deed through Court. To put an end to this litigation and in equity the plaintiff is not entitled to mesne profits and therefore, the decree of trial Court granting mesne profits towards loss of income is set aside. No costs.
To
1.The Subordinate Judge, Devakottai.
2.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai..