The defendant is the appellant in the above appeal.
2.The plaintiff filed a suit for specific performance of an agreement of sale executed by the defendant and prayed for directing the defendant to execute a registered sale deed in respect of schedule property in pursuance of sale agreement dated 10.09.1988.
3.The case of the plaintiff is that the appellant/defendant is the owner of the suit property and on 10.09.1988 she entered into an agreement of sale with the plaintiff/respondent agreeing to sell the suit property for a valuable consideration of Rs.2,75,000/- and the sale was reduced into writing and advance of Rs,10,000/- was paid on that day itself. Thereafter, on 14.09.1988 the respondent/plaintiff paid another sum of Rs.50,000/- towards sale consideration and the respondent/plaintiff was directed to discharge certain loans mentioned in the agreement of sale in respect of mortgages created by the appellant/defendant and as directed by the appellant/defendant, he discharged mortgage loans and other loans and after discharging the loans a sum of Rs.36,270/- alone remains to be paid towards balance of sale consideration and he was ready and willing to get the sale deed registered and as the defendant was not forthcoming he sent a telegram and also sent a letter on the same day to the appellant/defendant and the appellant/defendant issued a reply, wherein she refused to execute the sale deed by stating some reasons, which are unsustainable in law and hence, he filed a suit for specific performance.
4.The defendant/appellant in her statement admitted the execution of the agreement of sale for a sum of Rs.2,75,000/-. But pleaded that one Dr.Subbaraya Iyer, who was close to her played fraud on her and by making mis-representation, he obtained the signature of the appellant/defendant in the agreement of sale and she also questioned the Dr.Subbaraya Iyer about the sale consideration of Rs.2,75,000/- mentioned in that agreement, as the property would fetch more than Rs.4.50 lakhs and she agreed to sell the suit property for Rs.4.50 lakhs and Dr.Subbaraya Iyer informed her that for stamp duty purpose, it was mentioned as Rs.2.75 lakhs in the agreement of sale as sale consideration and he would get Rs.1,75,000/- from the purchaser and hand over the same to the appellant/defendant and believing that she executed the agreement of sale. She further stated that when she was asked to execute the sale deed, she demanded a sum of Rs.1,75,000/- from the said Dr.Subbaraya Iyer and he refused to pay the amount and therefore, she refused to execute the sale deed. According to her, the plaintiff and Dr.Subbaraya Iyer colluded together and by practicing fraud and undue influence, coercion and mis-representation on the appellant/defendant they obtained the agreement of sale and she never agreed to sell the property for Rs.2,75,000/- and there is no consensus ad-idem in respect of the sale consideration and hence, the plaintiff is not entitled to the relief as prayed for.
5.Before the trial Court the plaintiff examined himself as P.W.1 and marked 16 documents and the defendant examined herself as D.W.1 and marked 5 documents.
6.The learned Sub Judge on the basis of the above pleadings and evidence framed the following issues:
1.Whether the agreement dated 10.09.1988 is legally valid?
2.Whether the agreement was obtained by practicing fraud as alleged by the defendant/appellant by the plaintiff in collusion with one Dr.Subbaraya Iyer?
3.Whether the plaintiff is entitled to the relief of specific performance?
4.To what relief the plaintiff is entitled to?
7.The appellant/defendant also filed O.S.No.194/1990 against the respondent/plaintiff and Dr.Subbaraya Iyer for injunction and both the suits were tried together and common judgment was pronounced.
8.The learned Sub Judge after carefully discussing the oral and documentary evidence, held that the sale agreement dated 10.09.1988 was executed by the defendant/appellant with full knowledge and consent and it was not obtained by the plaintiff/respondent either by practicing fraud or by making mis-representation and the said agreement is valid in law and the respondent/plaintiff has acted as per the terms of agreement and discharged various loans and the case of the appellant/defendant that she agreed to sale the property for Rs.4,50,000/-, cannot be believed and the plaintiff is entitled to the relief of specific performance and decreed the suit as prayed for.
9.The lower Court has also decreed the suit O.S.No.194 of 1990 filed by the appellant/defendant that till the sale deed is executed by the appellant/defendant in favour of the respondent/plaintiff, the respondent/plaintiff or Dr.Subbaraya Iyer should not interfere with her possession and granted injunction and decreed the suit. The defendant in O.S.No.708 of 1988, aggrieved by the judgment and decree, filed this appeal.
10.The point for consideration in this appeal are:
1.Whether the agreement of sale was obtained by fraud or force or by making mis-representation by the respondent/plaintiff in collusion with Dr.Subbaraya Iyer?
2.Whether the sale consideration agreed between the parties was Rs.4,50,000/- or Rs.2,75,000/-?
3.Whether the respondent/plaintiff is entitled to the relief of specific performance?
12.Points No.1 & 2: The appellant/defendant in the written statement admitted the execution of the agreement of sale for a sum of Rs.2,75,000/- and in the written statement she never pleaded any fraud or mis-representation made by the respondent/plaintiff. In her notice, Ex.A15/B2, she has clearly stated that Dr.Subbaraya Iyer came to her house and obtained her signature in the agreement of sale and she questioned him about the sale price of Rs.2,75,000/- instead of the agreed price of Rs.4,50,000/- and Dr.Subbaraya Iyer pacified her by stating that for stamp duty purpose a lesser amount has been stated and at the time of registration he would get Rs.1,75,000/- from the purchaser and pay the same to her. The same averments are repeated in para 8 of the written statement which are as follows:
"On 10.09.1988 at about 9 P.M. The Doctor above said came alone to this defendant's house, got the signatures of this defendant on two sets of typed stamp papers and when the said Doctor read out the document styled as sale agreement the price was quoted therein at Rs.2,75,000/-. This defendant immediately questioned the said Doctor about the statement of the price as Rs.2,75,000/- instead of the agreed price of Rs.4,50,000/-. The said Dr.Subbaraya Iyer pacified that defendant that the amount is stated at a reduced figure only for the purpose of reducing stamp charges and registration charges and that the difference amount of Rs.1,75,000/- will be paid to this defendant out side the Registrar's Office before registration of the document. This defendant, who is an inexperienced and illiterate Gosha lady simply and meakly believed the representations made by the said Doctor bona fide and in good faith and in confidence, the said Doctor happened to be the family Doctor. Under the above circumstances, the said Doctor got the signatures of this defendant in the stamp papers and this defendant received Rs.10,000/- as advance in the document. This defendant required another sum of Rs.50,000/- to redeem her jewels from the Bank and to pay off some more loans and she asked the Doctor to pay the same which amount also was paid to this defendant on 14.09.1988 and this defendant's signature was obtained on a receipt by the said Doctor Subbaraya Iyer. One copy of the agreement of the sale dated 10.09.1988 was given to this defendant by Dr.Subbaraya Iyer."
Therefore, it is clear from Ex.A15/B2 and the passage from the averments made in the written statement stated above that no part has been played by the plaintiff in getting the agreement of sale as alleged by the appellant/defendant and according to her if at all any fraud has been practiced on her, it was done by Dr.Subbaraya Iyer. It is further admitted by the plaintiff that Dr.Subbaraya Iyer acted as a middle man and through him only the sale agreement was concluded. It is further stated in the plaint para 5 that after several talks between the plaintiff and the defendant in the presence of her husband and other persons the sale price was agreed at Rs.2,75,500/- and the plaintiff who is a stranger to the defendant entered into the sale transaction only through Dr.Subbaraya Iyer.
13.The defendant in her written statement also admitted that the plaintiff was a total stranger to her and through Dr.Subbraya Iyer only the agreement of sale was executed. Therefore, from the admission made in the written statement and notice, it is made clear that the defendant entered into a agreement of sale with the full knowledge that in the agreement, the consideration was mentioned as Rs.2,75,000/- and it was also mentioned that certain debt contracted by her are to be discharged by the plaintiff. Therefore, it is not open to the appellant/defendant to contend now that the plaintiff in collusion with the Dr.Subbaraya Iyer practiced fraud, undue influence and coercion and obtained the agreement of sale.
14.The appellant further did not say neither in the pleadings nor in the evidence that she was asked to sign in an unwritten blank stamp papers and while signing the same she was not aware of the contents. As stated supra, she admitted that she knew about the contents of the agreement of sale and questioned Dr.Subrraya Iyer about the consideration and on being satisfied with the explanation given by Dr.Subbaraya Iyer, she signed the agreement. There is no evidence on the side of the defendant/appellant to substantiate that Dr.Subbaraya Iyer has agreed that he would arrange to get Rs.1,75,000/- from the purchaser at the time of registration. Further, the agreement of sale was typed in Tamil and attested by her son and if really the story put forward by the defendant about the consideration, she would have examined her son to that effect.
15.Further, even according to the defendant, the fraud was played only by Dr.Subbaraya Iyer, she never met the plaintiff. Therefore, even assuming as claimed by the defendant that she was cheated by Dr.Subbaraya Iyer, she cannot complain against the plaintiff as she has admitted the execution of the agreement of sale knowing the contents of the agreement. She has also not denied in her statement that her husband was not aware of the sale transaction, when it was specifically stated in the plaint. The claim of the defendant that she is an illiterate woman and practicing "Gosha" and therefore, she was cheated cannot be accepted for the reason that it is not her case, that she signed in a blank stamp papers without knowing the contents or she was forced to sign the stamp papers by the plaintiff or the plaintiff promised to pay the balance sale consideration of Rs.1,75,000/- at the time of registration. Therefore, so far as the plaintiff is concerned, he obtained an agreement of sale from the defendant for a sum of Rs.2,75,000/- and the defendant also admitted the execution of the said agreement knowing about the contents of the agreement and hence, I hold that the agreement of sale was validly executed by the defendant in favour of the plaintiff for a consideration of Rs.2,75,000/-and the plaintiff did not obtain the same by practicing fraud or coercion or by making mis- representation in collusion with the Subbaraya Iyer.
16.The next point for consideration is whether the plaintiff is entitled to the relief of specific performance?
17.The plaintiff marked Exs.A3 to A11, various receipts issued by the creditors of the defendant which would prove that as contracted by the defendant in the agreement of sale, he discharged the mortgages and other loans. It is also admitted by the defendant that the loans were discharged by the plaintiff and it is not her case that she is not liable to pay any amount under those loans. Therefore, it is proved by the plaintiff that he acted in pursuance to the agreement of sale and discharged loans payable by the defendant. Further it is admitted that the plaintiff paid a sum of Rs.50,000/- on 04.09.1988 and obtained a receipt Ex.A2. If the defendant agreed to sell the property for Rs.4,50,000/- and she was promised that the balance of Rs.1,75,000/- would be paid at the time of registration, she would not have issued the receipt for Rs.50,000/- and she would have deducted that amount towards balance sale consideration of Rs.1,75,000/-. The lower Court considered all these aspects correctly came to the conclusion that the plaintiff has acted as per the terms of the agreement of sale and was also ready and willing to pay the balance amount and the suit was also filed within a period of three years from the agreement of sale and all would prove the readiness and willingness of the plaintiff in getting the sale deed executed in his favour and decreed the suit. It is further represented that after the decree, the balance sale consideration has been deposited in Court by the plaintiff. Therefore, I see no reason to interfere with the well considered judgment of the lower Court and I confirm the finding that the plaintiff is entitled to the relief of specific performance.
18.The learned counsel appearing for the appellant submitted the judgment reported in 2008(12) SCC 87 in the case of Pratap Lakshman Muchandi and others vs. Shamlaj Uddavadas Wadhwa and others, to the effect that when the sale deed was executed long back this Court can direct the plaintiff to pay additional amount and therefore, as per the said judgment, the plaintiff may be directed to pay the further sum of Rs.2,00,000/-.
19.The fact of the case in the reported judgment is different from the facts involved in this case. In this case, as stated supra, the plaintiff discharged loans payable by the defendant for a sum of more than Rs.1,75,000/- and the defendant had the benefit of those discharges. Further, the defendant is in possession of the property and enjoying the same for all these years. Therefore, there is no equity in favour of the appellant/defendant, by which the plaintiff can be directed to pay some additional amount.
20.Therefore, the judgment of the Court below is confirmed and the appeal is dismissed. In the Court below the plaintiff has prayed for delivery of vacant possession of the suit property by the defendant and as it has been decreed that the plaintiff is entitled to the relief for specific performance. I therefore further direct that the defendant shall execute the sale deed within a month from the date of receipt of the copy of this order, failing which, it is open to the plaintiff/respondent to get the sale deed executed through Court and also the defendant is further directed to hand over possession of the suit property to the plaintiff on the execution of the sale deed. To that extent the decree is modified by including the relief of recovery of possession in favour of the plaintiff/respondent after the execution of sale deed in his favour.
21.In the result, the appeal is dismissed. No costs.
er To, The III Additional Sub Judge, Trichirappalli.