IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED 05.10.2017 CORAM THE HON'BLE Mr.JUSTICE A.SELVAM and THE HON'BLE Mr.JUSTICE P.KALAIYARASAN Appeal Suit No.944 of 2009 and M.P.No.1 of 2009 Ramathal .. Appellant Vs R.Savithiri .. Respondent First Appeal preferred under Order 41 Rule 1 r/w Section 96 of the Code of Civil Procedure, 1908, against the judgment and decree dated 10.07.2009 made in O.S.No.384 of 2005 on the file of the Additional District Judge/Fast Track Court No.IV, Coimbatore.
For Appellant : Mr.M.Venkatachalapathy, Senior Counsel for Mr.M.Sriram For Respondent : Mr.T.M.Hariharan J U D G M E N T [Judgment of the Court was delivered by A.SELVAM, J.] This appeal suit is directed against the judgment and decree dated 10.07.2009, passed in Original Suit No.384 of 2005 by the Fast Track Court-IV, Coimbatore at Tirupur.
2. The respondent herein, as plaintiff, has instituted a Original Suit No.384 of 2005 on the file of the trial Court, praying to pass a decree of specific performance, in pursuance of the sale agreement dated 23.01.2004, wherein, the present appellant has been arrayed as sole defendant.
3. The material averments made in the plaint are that the suit property is absolute property of the defendant. The defendant has agreed to sell the suit property in favour of the plaintiff on 30.05.1990 for a sum of Rs.21,00,000/-. On the date of agreement dated 30.05.1990, Rs.4,00,000/- has been given as an advance and subsequently, a suit has been instituted in Original Suit No.323 of 1993 in respect of a cart track and after lapse of five years, the same has been withdrawn in the year 1998 and subsequently, a panchayat has been convened. The defendant has agreed to sell the suit property in favour of the plaintiff for a sum of Rs.22,00,000/- and to that extent, she has executed the suit sale agreement dated 23.01.2004. On the date of its execution, she received a sum of Rs.2,00,000/- and also conceded to the effect that Rs.4,00,000/- already paid, as per sale agreement dated 30.05.1990 can also be taken as advance and in aggregation, the defendant has received Rs.6,00,000/-. Further, it is agreed that the balance of sale consideration should be paid within a period of two years for getting a sale deed registered. Despite of repeated demands made by the plaintiff, the defendant has not come forward to execute a sale deed in favour of the plaintiff and under such circumstances, on 28.02.2005, the plaintiff has issued a legal notice to the defendant. After receipt of the same, an interim reply notice has been issued on 07.03.2005 and subsequently, on 11.03.2005, another notice has been issued to the defendant and after receipt of the same, the defendant has given a reply notice on 19.03.2005. In the reply notice, it is falsely alleged to the effect that the defendant has not executed suit sale agreement dated 23.01.2004. The plaintiff has always been ready and willing to perform her part of the contract and under such circumstances, the present suit has been instituted for getting the relief sought therein.
4. In the written statement filed on the side of the defendant, it is averred to the effect that the suit property is absolute property of the defendant and she purchased the same from her father-in-law in the year 1978. It is true to aver that on 30.05.1990, an agreement of sale has come into existence between the plaintiff and the defendant and on the date of its execution, the defendant has received a sum of Rs.4,00,000/- by way of an advance. Since the plaintiff has not come forward to get a registered sale deed by way of paying balance of sale consideration, the defendant has to forfeit the advance amount. It is false to aver that an agreement of sale has come into existence on 23.01.2004 between the plaintiff and the defendant. The said agreement of sale is nothing but concoction. It is also equally false to aver that the plaintiff is always ready and willing to perform her part of the contract. The plaintiff has no source to purchase the suit property and there is no merit in the suit and the same deserves to be dismissed.
5. On the basis of the rival pleadings raised on either side, the trial Court framed necessary issues and after considering the oral and documentary evidence, the suit has been decreed as prayed for. As against the judgment and decree, the present civil appeal has been preferred at the instance of the defendant, as appellant.
6. The sum and substance of the case of the plaintiff is that the suit property is the absolute property of defendant and she agreed to sell the same for a sum of Rs.21,00,000/- and to that effect, an agreement of sale has come into effect on 30.05.1990 and subsequently, a suit has been instituted in Original Suit No.323 of 1993 with regard to a cart track and the same has been withdrawn in the year 1998 and thereafter, a panchayat has been convened, whereby, the defendant has agreed to sell the suit property in favour of the plaintiff for a sum of Rs.22,00,000/- and to that effect, the suit sale agreement has come into existence on 23.01.2004 and on the date of its execution, the defendant has received a sum of Rs.2,00,000/- and also agreed to treat Rs.4,00,000/- already paid can also be taken as advance and in aggregation, she received Rs.6,00,000/- and despite of repeated notices, the defendant has not come forward to execute a sale deed in favour of the plaintiff and therefore, the present suit has been instituted for getting the relief sought therein.
7. The defence put forth on the side of the defendant is that the suit sale agreement is nothing but a forged document and further, the plaintiff has no sufficient source to purchase the suit property.
8. Basing upon the divergent contentions raised on either side, coupled with the evidence available on record as mentioned supra, the trial Court has decreed the suit as prayed for.
9. On the basis of the rival contentions put forth on either side, the following points have become emerged for discussion :
i. Whether the suit sale agreement dated 23.01.2004 is a genuine document ?
ii. Whether the plaintiff is having sufficient means to purchase the suit property ?
iii. Whether the plaintiff has always shown her readiness and willingness to perform her part of the contract ?
10. The learned counsel appearing for the appellant/defendant has repeatedly contended to the effect that on 30.05.1990, an agreement of sale has come into existence between the plaintiff and the defendant, whereby, the plaintiff has agreed to purchase the suit property for a sum of Rs.20,00,000/- and on the date of its execution, Rs.4,00,000/- has been given as advance and further, it is mentioned in the agreement dated 30.05.1990 to the effect that if the plaintiff has failed to get a sale deed registered, after paying balance of sale consideration, she has to forgo advance money. Under the said circumstances, there is no possibility for executing another sale agreement dated 23.01.2004 by the defendant and further, the suit sale agreement dated 23.01.2004 is nothing but concoction and further, the plaintiff has no sufficient source to purchase the suit property and the trial Court, without considering the vital infirmities found on the side of the plaintiff, has erroneously decreed the suit and therefore, the judgment and decree passed by the trial Court are liable to be interfered with.
11. In support of the contentions raised on the side of the appellant/defendant, the following decisions are relied upon :
i. Judgment of the Division Bench of this Court reported in 2017 4 LW 540 [M.Jayaprakash Narayanan Vs Santhammal and others] wherein, at paragraph No.12, the Division Bench has observed as follows :
"12. Yet another strong circumstance available in this case makes Ex.A1 is more doubtful. The main contention of the plaintiff that as per the terms agreed in Ex.A1, the defendants 1 to 3 agreed to execute the sale in favour of the plaintiff or his nominee. Accordingly, the defendants 1 to 3 have sold 17 acres and odd at the instance of the plaintiff to his sister-in-law on 30.11.2007 i.e. the very next day of execution of Ex.A1. Ex.A17 sale deed in respect of sale of 17 acres and odd in favour of the plaintiff's sister-in- law by the defendants 1 to 3 when carefully scanned, infact, stamp papers for said sale was purchased on 28.11.2007 even much prior to the alleged agreement came into existence. These facts infact create serious doubt about the plaintiff's case and about the existence of agreement. If really the properties were sold to plaintiff's sister-in-law only on the basis of Ex.A1, stamp papers for the sale deed dated 30.11.2007 should have been puchased only subsequent to the alleged agreement Ex.A1. Whereas the endorsement in Ex.A17 clearly shows that stamp papers were purchased even much before the Ex.A1 agreement. Thus, all the facts creates serious doubt about Ex.A1. Admittedly, 17 acres and odd sold to the plaintiff's sister-in-law as could be seen under Ex.A17. It is also admitted case that the purchaser under Ex.A17 namely, the plaintiff's sister-in-law and defendants 1 to 3 have also filed a suit for bare injunction against the third party in O.S.No.150 of 2008 in the year 2008 itself. These admitted facts infact clearly probabilise the defence theory that certain documents were handed over to the plaintiff's sister-in-law, who was joined in the suit O.S.No.150 of 2008 as against one Esakki muthu. The said suit is also decreed merely on the basis of the admission made by one of the defendants. Possibility of handing over the documents cannot be ruled out. Similarly, the plaintiff's sister-in-law has apparently in dominate position at the relevant time when she has purchased the property from the defendants 1 to 3. The possibility of retaining the documents under the guise of the suit is also cannot be ruled out. All these clearly probabilise the defence theory that the original documents relating to the title to the properties came into possession of the plaintiff only on the above circumstances. Therefore, we are constrained to hold that merely because the documents namely some of the title deed relating to the suit properties came into the possession of the plaintiff that itself cannot be sufficient for alleged execution of the Ex.A1 agreement. Though PW2 has supported the plaintiff in chief examination, his cross- examination has clearly shows that his evidence his totally unreliable. Infact, he has stated in his evidence that he has only attested the document alone, whereas he also stood as witness in Ex.A17. PW2 is involved in real estate business. His evidence clearly indicate that he is only an agent of PW1. Therefore merely because PW1 and PW2 have stated above the execution of document, taking into consideration the totality of the circumstances as discussed above, we are constrained to hold that the evidence of PW1 and PW2 does not satisfy the conscious of this Court to believe their evidence to presume the execution of Ex.A1 agreement, particularly the alleged consideration of Rs.40,00,000/- on the date of agreement is not been established at all. Therefore, mere signature of the parties were established on the basis of some interested witnesses of the parties, who wants to enforce the so called contract, in respect of the huge property, the execution cannot be infered merely on the basis of such witnesses, there must be evidence to show that Ex.A1 is made out of free consent of parties and there is a lawful consideration in the above agreement. Only when the plaintiff established that there was a conseus ad idem between the parties and a valuable consideration, then the above contract can be termed as a valid contract capable of enforcing before the Court of law. When the two elements namely, the free consent and lawful consideration are absent in the document. Such document cannot be considered for lawful consideration in the eye of law. Therefore, we are constrained to hold that Ex.A1 is not established as a true document. Accordingly, this point is answered."
ii. Judgment reported in 2017 SCC Online SC 580 [Jaswinder Kaur (now deceased) through her Lrs and others Vs Gurmeet Singh and others] wherein, the Hon'ble Supreme Court has held that in a suit for specific performance, if the plaintiff fails to show readiness and willingness, he/she is not entitled to get the discretionary relief of specific performance.
iii. Judgment of this Court reported in CDJ 2017 MHC 2992 [N.Sundaram Vs P.Kamalammal and another] wherein, at paragraph Nos.16 and 21, it is observed as follows :
“16.It is admitted fact that the plaintiff was inducted into possession of the suit properties on the basis of the agreement entered into between the parties on 07.05.2007. Though nomenclature of the document in which the plaintiff claims to have inducted into possession denotes as lease deed, when Ex.A1 document is carefully perused, it is seen that, in fact, it is not a lease deed. It is like unregistered usufructuary Mortgage Deed. As per the said deed, the plaintiff was permitted to occupy the property on condition that he has to pay a sum of Rs.1,50,000/- and that the aforesaid amount shall not carry any interest and the building shall not carry any rent."
"21. It is the admitted fact that the suit properties were under the mortgage and the 2nd defendant has also taken coercive steps in bringing the properties for auction, by initiating proceedings under Section 69 of the Transfer of the Property Act at the relevant point of time. These facts would clearly show that at the relevant point of time, the 1st defendant, who is an illiterate, in fact, was in adversity. Therefore, the burden lies on the plaintiff to establish the genuineness of the so called agreement.”
iv. Judgment of this Court reported in CDJ 2016 MHC 2364 [K.Kandasamy Vs A.Palanisamy] wherein, it is observed that value of property quoted by plaintiff in sale agreement is less than actual value which alone ground for rejection of equitable relief of specific performance.
12. In order to repudiate the contentions put forth on the side of the appellant/defendant, the learned counsel appearing for the respondent/plaintiff has contended to the effect that the suit sale agreement dated 23.01.2004 has been marked as Ex.A1, wherein, one Manikandan has put his signature as a witness and he has been examined as PW2 and his specific evidence is that the defendant has brought him for execution of Ex.A1 and his further evidence is that the defendant has executed the same. Apart from the evidence given by PW2, the husband of the plaintiff has been examined as PW3 and he has also given a clinching evidence to the effect that the defendant has executed Ex.A1. Even though in Ex.A1, two years period has been mentioned for getting a registered sale deed, after paying balance of sale consideration, even in the year 2005, the plaintiff has issued a legal notice, whereby called upon the defendant to come to Registrar office and after receipt of the same, the defendant has given a false reply notice and further, various documents have been filed for the purpose of showing sufficient means of the plaintiff to purchase the suit property. The trial Court, after considering the evidence available on the side of the plaintiff, has rightly decreed the suit and therefore, the judgment and decree passed by the trial Court did not require any interference.
13. In support of the contentions raised on the side of the respondent/plaintiff, the following decisions are relied upon :
i. Judgment reported in [2004]8 SCC 689 [Swarnam Ramachandran and another Vs Aravacode Chakungal Jayapalan] wherein, at paragraph No.18, the Hon'ble Supreme Court has observed as follows :
"18. In the case of Nannapaneni Subayya Chowdary v. Garikapati Veeraya it has been held, after examining various authorities, that in a suit for specific performance, all that is necessary for the purchaser to show is that he was ready and willing to fulfil the terms of the agreement; that he had not abandoned the contract; that he had kept the contract subsisting. Applying the above tests to the facts of the present case, we are of the view that the courts below were right in their conclusion that the respondent was always ready and willing to comply with his obligations under the contract. In the circumstances, the Courts below were right in decreeing the suit for specific performance.”
ii. Judgment reported in 1969[3] SCC 120 [Nathulal Vs Phoolchand] wherein, at paragraph No.6, the Hon'ble Supreme Court has observed to the effect that to prove himself ready and willing, a purchaser has not necessarily to produce the money or to vouch a concluded scheme for financing the transaction.
iii. Judgment reported in [1996] 4 SCC 596 [S.Gopal Reddy Vs State of A.P.] wherein, at paragraph No.29, the Hon'ble Supreme Court has observed to the effect that the ordinary method of proving a document is by calling as a witness the person who had executed the document or saw it being executed or signed or is otherwise qualified and competent to express his opinion as to the handwriting. There are some other modes of proof of documents also as by comparison of the handwriting as envisaged under Section 73 of the Evidence Act.
iv. Judgment reported in [2015] 1 SCC 597 [K.Prakash Vs B.R.Sampath Kumar] wherein, at paragraph No.18, the Hon'ble Supreme Court has observed as follows :
“18. Subsequent rise in the price will not be treated as a hardship entailing refusal of the decree for specific performance. Rice in price is a normal change of circumstances and, therefore, on that ground a decree for specific performance cannot be reversed.”
14. From the conjoint reading of the decisions cited on either side, in a suit for specific performance, the Court can deduce the following legal points :
i. As per Section 16[c] of the Specific Relief Act, 1963, the plaintiff has to plead and prove his/her readiness and willingness to perform his/her part of the contract.
ii. If a defence is taken on the side of the defendant to the effect that the suit sale agreement is nothing but a concocted document, the entire burden lies on the plaintiff to prove that it is a genuine document.
iii. The plaintiff/purchaser need not show money always for proving performance of his contract.
With these legal backdrops, the Court has to further analyse the present case.
15. The specific case put forth on the side of the plaintiff is that in between the plaintiff and the defendant, an agreement of sale has come into existence on 30.05.1990, whereby the plaintiff has agreed to purchase the suit property for a sum of Rs.21,00,000/- and on the date of its execution, the defendant has received a sum of Rs.4,00,000/- and subsequently, a suit has been instituted in Original Suit No.323 of 1993 with regard to cart track and the same has been withdrawn in the year 1998 and thereafter, due to panchayat, the suit sale agreement has come into existence on 23.01.2004, whereby the defendant has agreed to sell the suit property for a sum of Rs.22,00,000/-.
16. The main defence taken on the side of the defendant is that the suit sale agreement is nothing but concoction, by way of forging the signature of the defendant.
17. The suit sale agreement has been marked as Ex.A1. The agreement dated 30.05.1990 has been marked as Ex.B1. Since a definite stand has been taken on the side of the defendant to the effect that Ex.A1 is nothing but a forged document, the entire burden lies upon the plaintiff to prove that Ex.A1 is a genuine document.
18. For the purpose of proving that Ex.A1 is a genuine document, the plaintiff has been examined as PW1 and her specific evidence is that on 23.01.2004, the defendant has executed Ex.A1.
The witness, by name Manikandan, has been examined as PW2 and his specific evidence is that for the purpose of executing Ex.A1, the defendant has brought him to the place of execution and after execution of Ex.A1, both the plaintiff and defendant have put their signatures.
19. In fact, this Court has meticulously analysed the evidence given by PW2 and even a suggestion has not been put on the side of the defendant to the effect that an animosity has been in existence between PW2 and defendant. Since such kind of aspect is totally absent on the side of the defendant, the Court is not having any other alternative, except to accept the evidence given by PW2. Since PW2 has given a clinching evidence to the effect that he has been brought to the place of execution only by the defendant and after execution, both the plaintiff and defendant have put their signatures, it is needless to say that on the side of the plaintiff, the due execution of Ex.A1 has been legally proved.
20. At this juncture, the Court has to look into the evidence given by the defendant. The defendant has been examined as DW1. During the course of cross-examination, she has admitted to the effect that she has received a sum of Rs.4,00,000/- from the plaintiff, but she has not executed the sale agreement.
21. It is an admitted fact that on 30.05.1990, Ex.B1 has come into existence between the plaintiff and defendant, whereby the defendant has received a sum of Rs.4,00,000/-. But she has accepted only the receipt of Rs.4,00,000/- and completely denied the execution of Ex.B1. Therefore, the defendant is in the habit of denying the admitted document. Since the defendant is in the habit of denying the admitted document and since as narrated earlier, the plaintiff has clinchingly proved Ex.A1 as genuine document, this Court is of the view that the first point raised on the side of the appellant/defendant is sans merit.
22. The second contention put forth on the side of the appellant/ defendant is that the plaintiff is not having sufficient means to purchase the suit property and further, she has not shown readiness and willingness from the date of execution of Ex.A1.
23. In fact, on the side of the plaintiff, various documents have been filed and especially, through Exs.A12, A17 and A18, the plaintiff has proved that she is having sufficient means to purchase immovable properties.
24. It is seen from Ex.A1 that two years period has been fixed for paying balance of sale consideration so as to get a registered sale deed. Before lapse of two years, on 28.02.2005, the plaintiff has issued a legal notice to the defendant, whereby called upon her to come to the Registrar office for executing a sale deed after receipt of balance of sale consideration. Even prior to lapse of two years, a notice has been issued by the plaintiff. It shows her readiness and willingness to perform her part of the contract.
25. On the side of the appellant/defendant, an inert attempt has been made to the effect that the stamp papers found in Ex.A1 are standing in the name of one Murugan Mills and therefore, Ex.A1 is nothing but a forged document.
26. For the purpose of analysing the residual argument made on the side of the appellant/defendant, the Court has to look into Ex.A13, wherein it has been clearly mentioned to the effect that both the plaintiff and her husband are partners of the said Murugan Mills and under such circumstances, the stamp papers found in Ex.A1 might have been purchased in the name of said Murugan Mills and therefore, the residual argument advanced on the side of the appellant/ defendant also goes without merit.
27. Before parting with this appeal, the Court would like to sum up the following points :
i. On the side of the plaintiff, replete evidence is available for the purpose of proving that Ex.A1 is a genuine document.
ii. The plaintiff has proved her source to purchase the suit property.
iii. The plaintiff has always shown her readiness and willingness to perform her part of the contract.
28. The trial Court, after analysing the rival evidence available on record, has decreed the suit. In view of the foregoing narration of both factual and legal aspects, this Court has not found any acceptable force in the contentions put forth on the side of the appellant/defendant and altogether the present appeal suit deserves to be dismissed.
29. In fine, this Appeal Suit is dismissed with costs. The judgment and decree passed in O.S.No.384 of 2005, by the Additional District Judge/Fast Track Court No.IV, Coimbatore are confirmed.
Connected miscellaneous petition is dismissed.
gya Internet:Yes/No Index:Yes/No To The Additional District Court, [Fast Track Court No.IV], Coimbatore.
[A.S., J.] [P.K., J.] 05.10.2017 A.SELVAM, J.
and P.KALAIYARASAN, J.
gya Appeal Suit No.944 of 2009 and M.P.No.1 of 2009 05.10.2017