The first defendant in O.S.No.133 of 1987, is the appellant. The said suit was filed by the respondents 1 and 2 herein seeking specific performance.
2.According to the Plaintiffs, the first defendant had appointed his cousin, the second defendant as Power of Attorney under registered Power of Attorney Deed dated 16.06.1978 and on 15.10.1984, the second defendant as power agent of the first defendant agreed to sell suit property which measures about 15 acres along with two wells, 7 = H.P. pump set having electricity service connection for a total consideration of 1,50,000/- (Rupees One Lakh Fifty thousand) to one Murugasamy. On the date of execution of the agreement he paid a advance of Rs.1,00,000/-. He was also put in possession of the property under the said agreement. A period of three years fixed for payment of balance consideration of Rs.50,000/-. On 27.09.1987, according to the Plaintiffs, the said Murugasamy received a sum of Rs.1,02,500/- and assigned his rights under agreement dated 15.10.1984 to the plaintiffs. The plaintiffs were also put in possession of the said property. Thereafter, the plaintiffs issued telegraphic notice to the second defendant on 09.10.1987 and the same was followed by a legal notice dated 13.10.1987. The suit came to be filed on 15.10.1987.
3. The first defendant resisted the suit contending that the Power of Attorney dated 16.06.1978 was executed by him only to enable the second defendant to defend the suit in O.S.No.236 of 1978, filed against him by one Subbaraya Gounder, seeking specific performance. The first defendant would contend that he is a blind person. He trusted his cousin, the second defendant who had helped him for the conduct of the proceedings, which ultimately ended in favour of the first defendant.
4. According to the first defendant, the Power of Attorney executed only for conduct of the litigation and the power to sell was incorporated, without his knowledge. The said Power of attorney was cancelled on 24.10.1984. The first defendant claimed that the second defendant had consipired with Murugasamy, the plaintiffs and one E.A.Ramasamy who happens to be the Co-brother of the second defendant and had brought about four sale agreements, three of which were executed on 16.10.1984. The first defendant has further contended that the plaintiffs were not capable of paying the sum of Rs.1,02,500/- alleged to have paid by them on the date of agreement as well as the remaining sum of Rs.50,000/-, which is due under the agreement. It was also contended that plaintiffs were not ready and willing to perform their part of the contract. The fact that agreement itself was obtained at the fag end of the three year period, just about 15 days before the expiry of the three year period was also taken as a ground to resist the suit on the ground of absence of readiness and willingness on the part of the plaintiffs.
5. The second defendant had filed a written statement supporting the case of the plaintiffs.
6.On the above pleadings, learned Subordinate Judge, Dharapuram had framed the following issues.
(a) Whether the Power of Attorney stated to have been executed by the first defendant in favour of the second defendant on 16.06.1978 is true and valid?
(b) Whether the Sale Agreement dated 15.10.1984 is true and valid?
( c) Whether the assignment dated 27.09.1987 executed by Murugaswami in favour of the plaintiffs is true?
(d)Whether the Plaintiffs are entitled to relief of specific performance?
(e) To what other reliefs the plaintiffs are entitled to?
5. On consideration of the evidence on record, the learned trial Judge concluded that the Power of Attorney dated 16.06.1978 is a valid document. He further held that the sale agreement dated 15.10.1984 and the assignment dated 27.09.1987 also to be true, valid and enforceable. On the question of readiness and willingness, the learned trial Judge, concluded that, in as much as the suit was filed in the year 1987 i.e. 15.10.1987, the Plaintiffs have proved that they are ready and willing to perform their part of the contract. On the above findings the learned trial Judge decreed the suit. Against, the said decree, the first defendant had filed this appeal.
6. The first defendant in the suit died. Sivagami Ammal wife of the first defendant was impleaded as his Legal Heir. Fourth defendant Chitra who claims to be the daughter of the first defendant through his second wife Kuppattal and T.S.Ponnusamy who claims under the will of Sivagamiammal viz., first wife of first defendant were impleaded as legal heirs in this appeal. The second defendant Venkatesh who was shown as third respondent in the appeal got himself transposed as the third appellant in the appeal, claiming under a will , said to have executed by the first defendant viz., Palanisamy Gounder. It is not in dispute that the said will has been held to be invalid in O.S.No.18/1996 on the file of Subordinate Judge, Gobichettipalayam and challenging the same, S.A.NO.332 of 2000 was filed before this Court and the same was dismissed on 24.02.2004. Thus, the transposition of the second defendant as appellant would not confer any right on him.
7. I have heard Mr. K.Surendranath appearing for Mr.B.Dyaneswaran, learned counsel for the appellants 1 to 3, Ms.P.T.Ramadevi for the fourth appellant and Mr.A.K.Kumarasamy, learned senior counsel for Mr.S.Kaithamalai Kumaran for the respondents 1 and 2.
8. The following points arose for consideration in the appeal.
(i) Whether the agreement dated 15.10.1984 and assignment dated 27.08.1987 are true and valid?
(ii) Whether the Plaintiffs were ready and willing to perform their part of the contract?
9. Mr.K.Surendranath, learned counsel for the appellants 1 to 3 would contend that the evidence available, would point to a consipiracy between the second defendant, his son in law Gnanasundaram (Attestor of Ex.A1, the assignment deed dated 27.09.1987) and E.A.Ramasamy co-brother of 2nd defendant (Attestor to A2 agreement dated 15.10.1984) to snatch the properties of the first defendant who is admitedly a blind person.
10. The learned counsel for the fourth appellant 1 to 3 would point out that apart from entering into Ex.A2 dated 15.10.1984, the Power Agent has also entered into three other agreements viz., Ex.B5, Ex.B6, Ex.B7 on 16.10.1984, agreeing to sell almost all the properties of the first defendant. It is also pointed out that proposed purchaser under Ex.B6 is E.A.Ramasamy who apart from being the attestor of Ex.A2 also happens to be the co-brother of the second defendant Venkatachalam (Power Agent). Pointing out the above features, the learned counsel for the appellants 1 to 3 would contend that the theory of conspiracy is more probable and coupled with the fact that a long period of three years is fixed under the agreement for payment of the balance sale consideration of Rs.50,000/- which itself is only 1/3rd of the total sale consideration, would definetely throw seeds of suspecion about the genuiness of both the agreement dated 15.10.1984 and the assignment dated 27.09.1987.
11. The learned counsel for the appellant would submit that the second plaintiff has not gone into the box. The first plaintiff had deposed that he is cultivating some lands of lease and his ability to muster a sum of Rs.50,000/-, which is claimed to be paid on the date of assignement i.e. on 27.09.1987, has been seriously questioned. The second defendant has also raised a plea that plaintiffs are agricultural labourers. They have no means to pay further balance of sale consideration.
12. Per contra, the learned senior counsel appearing for the plaintiffs viz., respondents 1 and 2 would contend that this theory of conspiracy was never brought up before the trial Court. The first defendant as D.W.1 has admitted the execution of Power of Attorney in favour of the second defendant and it is not in dispute that the Power of Attorney, a registered document, contains power of sale. He would also point out that Ex.A2 is a registered instrument and there is no valid reason to disbelieve Exs.A2 and A3.
13. True that Ex.A2 is a registered instrument, but Ex.A2 has been executed by Power Agent who has been accused of colluding with his own relations to cheat the first defendant, who is a blind man. As rightly pointed out by the learned counsel for the appellant, it is borne out by documents that within a span of two days, all the properties belonging to the first defendant were agreed to be sold to various persons. In all the four documents viz., Ex.A2, Ex.B5,B6 and B7 nearly 2/3rd sale consideration is said to have been paid on the date of agreement. For payment of the balance sale consideration of 1/3rd unduly long periods were fixed. Possession has been handed over to the intending purchaser as part performance. It is an admitted fact that second defendant has two wifes. No valid reason had been assigned for the sale of the properties,within a short span of two days. None of the documents viz., Ex.A2 and B5 to B7 disclose any reason as to why the properties are being sold. These circumstances definetely create a suspicion in the mind of the Court as to the intention of the second defendant namely the Power Agent of the first defendant. The Power of Attorney was also cancelled on 24.10.1984. The plaintiffs have issued notice dated 13.10.1987 and filed the suit on the last date fixed for performance on 15.10.1987. In his evidence as P.W.1, the First plaintiff, had claimed that he had paid a sum of Rs.50,000/- from his father's savings, on the date of assignment. When the capacity of the plaintiffs to pay a sum of Rs.1,02,500/- on the date of assignment i.e. 27.09.1987, is seriously questioned, the evidence of P.W.1 regarding the means , in my considered opinion is wholly unreliable. He would depose that his father died 10 years prior to agreement. He was examined in Court on 25.09.1989. His evidence is to the effect that his father had saved a sum of Rs.50,000/- during his life time and that was used for paying Rs.50,000/- at the time of the assignment under Ex.A1 in the year 1987, 8 years, after his father's death. He would also depose that he was not having a Bank Account and he is not a Income Tax Assessee. The following is the deposition of P.W.1 in his cross examination regarding his means.
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14. The above evidence in my opinion is wholly unnatural. There is no evidence regarding the means of the second plaintiff to pay a sum of Rs.50,000/- said to have been paid on 27.08.1987 or to balance of sale consideration. The second plaintiff has not chosen to enter the box through his financial capability has been seriously questioned. There are also descripencies regarding the manner in which Ex.A3 came into existance and who all negotiated for the transaction. While P.W.1 would state that Ex.A3 was prepared by a lawyer, it is seen that the document has been signed by document writer and PWs 2 and 3 have also stated that the document was drafted by a documentary writer. The evidence of P.W.1 regarding date of handing over possession and payment of the consideration for Ex.A3 contradict the recitals in Ex.A3. I am of the opinion that the execution of Ex.A3, is shrouded in mystery.
15. As regards readiness and willingness on the part of the plaintiffs, as already pointed out, the first plaintiff had deposed that he is not a income tax assessee, he does not have bank account in his name and he paid a sum of Rs.50,000/- from the money saved by his father who died ten years prior to his deposition i.e.in the year 1979. The above evidence does not inspire the confidance of the Court. Further the first plaintiff and the second plaintiff have failed to establish their means for having paid a sum of Rs.1,02,500/- on 27.09.1987 and to pay balance sale consideration of Rs.50,000/-. There is no evidence what so ever to show financial capacity of the second plaintiff.
16. The learned trial Judge has not considered the question of readiness and willingness in the proper prospective. It is also found from the Judgment of the learned trial Judge that five issues were framed and he had considered all the five issues together which had lead to non consideration of several materials facts. Infact, the learned trial Judge has observed that P.W.2 Murugasamy had deposed that he owns 50 acres of land. I have examined that the evidence of P.W.2. There is no such statement in his evidence. The learned trial Judge has relied upon admission of D.W.1 who had deposed that there is no enemity between him and the witnesses. I do not think that by itself is a sufficient grounds for granting the relief of specific performance.
Section 20 of the Specific Relief Act gives a descretion to the Court while granting decree of specific performance . The Court is not bound to grant specific performance viz., in a case, where the plaintiffs in the suit of specific performance have failed to show that the agreement was beyond suspicion.
17. In view of the foregoing discussion, I conclude that execution of Ex.A3 as well as Ex.A2 are shrouded in mystery. The plaintiffs are not able to clear the air regarding necessity for fixation of long periods for payment of balance of sale consideration. I find that it would not be just and equitable to grant the relief of specific performance in the case on hand. There is no prayer for refund of advance amount also.
10. For all the above reasons, I am unable to agree with the conclusions of the trial Court. In fine, the Appeal is allowed. The judgment and decree dated 26.10.1999 in O.S.No.133 of 1987 on the file of the Court of Subordinate Judge, Dharapuram, are set aside and the suit in O.S.No.133 of 2019 will stand dismissed. However, there will be no order as to costs.
15.02.2017 Index : Yes/No Internet:Yes/No arr To The Subordinate Judge, Dharapuram.
R.SUBAMANIAN, J arr A.S.No.228 of 1992 15.02.2017 http://www.judis.nic.in