Madras High Court
T.Arokiadoss vs P.John Philip on 27 April, 2022
Author: G.Chandrasekharan
Bench: G.Chandrasekharan
S.A.No.74 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 03.02.2022
PRONOUNCED ON : 27.04.2022
CORAM
THE HON'BLE Mr. JUSTICE G.CHANDRASEKHARAN
S.A.No.74 of 2019
T.Arokiadoss ...Appellant
Vs.
1.P.John Philip
2.J.Johnson Fellora
3.John Sheelarani ...Respondents
Prayer:- Second Appeal is filed under Section 100 of the Code of Civil
Procedure, to set aside the judgment and decree passed in A.S.No.63 of
2012 on the file of the Principal District Judge, Cuddalore, dated
02.01.2017 reversing the judgment and decree passed in O.S.No.118 of
2008 on the file of the Principal Subordinate Judge, Cuddalore, dated
15.12.2012.
For Appellant : M/s.V.Srimathi for V.Ragavachari
For Respondents : Mr.R.Gururaj for R1 to R3.
1/43
https://www.mhc.tn.gov.in/judis
S.A.No.74 of 2019
JUDGMENT
This Second Appeal is directed against the judgment and decree in A.S.No.63 of 2012 on the file of the learned Principal District Judge, Cuddalore, reversing the judgment and decree of the learned Principal Subordinate Judge, Cuddalore in O.S.No.118 of 2008.
2.The appellant/plaintiff filed the suit for specific performance on the basis of the sale agreement dated 21.04.2008, alternatively, refund of advance amount with subsequent interest from the date of plaint till the date of realization @ 12% p.a on Rs.4,00,000/-. Appellant filed the suit against the respondents 1 to 3 and one P.Pathianathan, father of the first respondent. They were defendants 1 to 4 in the suit. P.Pathianathan and respondents offered to sell the “A” schedule properties to the appellant at the rate of Rs.1,600/- per cent. It was represented that they are entitled to Ac.3-18 ¾ acres in total and the sale price was arrived at Rs.5,10,000/-. A sale agreement was executed on 21.04.2008. At the time of execution of the agreement, deceased first defendant P.Pathianathan went out of village, first respondent promised to bring his father at the time of 2/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 execution of the sale deed and the respondents received Rs.3,00,000/- as advance. The sale should have to be completed within a period of one month. Appellant was always ready and willing to perform his part of the contract by paying balance sale consideration to execute the sale deed. He was demanding for the execution of the sale deed. First respondent could not bring P.Pathianathan and he further received a sum of Rs.50,000/- on 20.05.2008 and extended the time by two months by making an endorsement in the sale agreement. Subsequently, P.Pathianathan received a sum of Rs.50,000/- on 11.07.2008 and confirmed the sale agreement by making endorsement. It later came to the knowledge of the appellant that though the respondents claim that they are entitled to 0.56 cents in item No.10, first respondent purchased only 0.22 cents as per the sale deed dated 01.09.1998. As for item No.1, it was represented that the respondents are entitled to 0.17.0 ares through a partition deed dated 24.06.1982, but P.Pathianathan was entitled only to 0.06 cents and the remaining extent belong to his brother. The extents were mentioned in the sale agreement as represented by the respondents. A notice dated 17.07.2008 was issued to respondents and a reply on 3/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 28.07.2008 was sent with false and untenable allegations claiming a loan transaction and disputing the sale agreement. Survey Nos.44/6 and 44/7 had been repeated in the bottom portion of the sale agreement by mistake. After deducting 34+37+17 ¾ that is 88 ¾ cents, available extent which can be sold is only 2.30 acres. That is described in 'B' schedule. Total sale consideration comes Rs.3,68,000/-, but the appellant paid Rs.4,00,000/-. A sum of Rs.34,000/- is paid in excess. The respondents are not ready and willing to execute the sale deed inspite of the request made by the appellant and therefore, the suit for the reliefs aforesaid.
3.The respondents denied the execution of sale deed and receipt of advance amount as claimed by the appellant. The case of the respondents is that deceased P.Pathianathan is no way connected with the alleged transaction. First respondent borrowed a sum of Rs.3,00,000/- on 21.04.2008 and another sum of Rs.50,000/- on 20.05.2008. At the time of borrowal, appellant took signatures of the respondents as security in five 20 rupees stamp papers, one blank promissory note, took xerox copies of the title deeds. He was demanding interest at 60% per annum. 4/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 Appellant concocted and fabricated the sale agreement in blank 20 Rupees stamp papers taken by him at the time of lending money. Therefore, he mentioned wrong survey numbers in the description of property and included properties that the respondents do not possess. Properties originally belong to Pichamuthu, father of P.Pathianathan. Properties are the ancestral properties of the family. When, P.Pathianathan has got share in the properties. Sale agreement alleged to have been executed by the respondents is illegal, ultra vires and in- executable. The entire transaction is only a loan transaction and respondents never willing to sell the suit properties at any point of time. The value of the suit properties worth more than Rs.10,00,000/- per acre and respondents would not have executed sale agreement for meager sum of Rs.5,10,000/-. First respondent received a sum of Rs.3,50,000/- as loan and he is ready to return the amount with reasonable interest. Therefore, the suit is liable to be dismissed.
4.During the trial, PW1 to P.W.3 were examined and Ex.A1 to A7 were marked on the side of the appellant/plaintiff. D.W.1 and D.W.2 5/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 were examined and Ex.B1 to B3 were marked on the side of the respondents/defendants. That apart, Ex.C1 and Ex.C2 and X1 were marked.
5.On the basis of the pleadings, the following issues were framed by the trial Court,
i)Whether the sale agreement is true and valid?
ii)Whether the plaintiff is entitled for the decree as prayed for?
iii)To what other relief?
6.On considering the oral and documentary evidence, the learned trial Judge found that the sale agreement was executed by respondents and P.Pathianathan had also acknowledged and admitted the execution of sale agreement and joined in executing a sale agreement through Ex.A3 endorsement. The alleged loan transaction was not accepted by the trial Court and the suit for specific performance was decreed. In appeal in A.S.No.63 of 2012 filed by the respondents, First Appellate Court reversed the finding of the trial Court for the reasons that the appellant 6/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 has not taken any steps to execute the sale deed within the stipulated time. Repeated payments made to the respondents, show that it was only loan transaction. There is no reason why there are defects in describing the suit properties in the sale agreement. Thus, the First Appellate Court reversed the judgment of the trial Court and modified the decree to the effect that the appellant is entitled only for the refund of advance amount. Challenging the said judgment, appellant has filed this Second Appeal.
7.At the time of the admission of the Second Appeal, the following substantial question of law was framed, “Whether the Lower Appellate Court is correct in law in allowing the appeal on the ground that the plaintiff has not come forward to execute the sale within stipulated time of one month overlooking the two endorsements made in Ex.A2 and Ex.A3 which would go to show that time was not the essence of the contract and would further demonstrate the readiness and willingness of the plaintiff?” 7/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019
8.The learned counsel for the appellant submitted that the sale agreement in respect of suit property was executed by the respondents on 21.04.2008. The deceased first defendant went out of village on the date of execution of sale agreement and therefore, it was signed by the respondents. Subsequently, the deceased first defendant had also joined in executing the sale agreement on 11.07.2008 by receiving further advance amount Rs.50,000/- and confirmed the execution of sale agreement. In pursuance of the sale agreement, the respondent received Rs.3,00,000/- on 21.04.2008, a sum of Rs.50,000/- on 20.05.2008 and another sum of Rs.50,000/- on 11.07.2008. The time has never been considered as essence of the contract. The respondents cannot give evidence contrary to the recitals in the document as per Section 92 of the Indian Evidence Act. It is not known as to how the First Appellate Court had reversed the well considered judgment of the trial Court and came to the conclusion that Ex.A1 is not really a sale agreement, but a document executed in connection with a loan transaction, that appellant was not ready and willing to perform his part of contract within the time specified and negatived relief of specific performance. Thus, finding of 8/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 the First Appellate Court is not based on the evidence available and proper appreciation of evidence and legal proposition. Therefore, learned counsel for the appellant prayed for setting aside the judgment of the First Appellate Court and for restoring the judgment of the trial Court.
9.In this regard, learned counsel for the appellant, relied on the judgments reported in AIR 1979 SC 1241 Prakash Chandra Vs. Angadlal and others and (1993) 2 MLJ 7 Nanjammal and others Vs. Palaniammal, for the proposition that the ordinary rule is that specific performance should be granted.
In the judgment reported in AIR 1979 SC 1241 Prakash Chandra Vs. Angadlal and others, it is observed that,
8.The next question is whether the relief for specific performance being a discretionary relief granted in equity should be refused to the appellant.
9.The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable considerations point to its refusal and the circumstances show that damages would constitute an adequate relief. In the judgment reported in (1993) 2 MLJ 7 Nanjammal and others Vs. 9/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 Palaniammal, it is observed that,
9. The proposition was reiterated in Prakash Chandra v. Angadlal . The Court observed, The ordinary rule is that specific performance should be granted. It ought to be denied only when equitable consideration point to its refusal and the circumstances show that damages would constitute an adequate relief. In the present case, the conduct of the appellant has not been such as to disentitle him to the relief of specific performance. He has acted fairly throughout, and there is nothing to show that by any act of omission or commission he encouraged Mohsinali and Qurban Hussain to enter into the sale with the first and second respondents. There is no evidence that the appellant secured an unfair advantage over Mohsinali and Qurban Hussain when he entered into the agreement. Nor is there anything to prove that the performance of the contract would involve the respondents in some hardship which they did not foresee.
The judgment reported in AIR 2005 SC 3503 Aniglase Yohannan Vs. Ramlatha and others, is relied for the proposition that if the pleadings manifest that conduct of the plaintiff entitles him to get the relief of perusal of the plaint, he should not be denied the relief. 10/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019
11.......The basic principle behind Section 16 (C) read with explanation (ii) is that any person seeking benefit of the specific performance of contract must manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. The judgment reported in AIR 2008 SC 1568 Silvey and others Vs. Arun Varghese and others, is relied for the proposition that, conduct of the defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific performance.
12........In Lourdu Mari David and others, Vs. Louis Chinnaya Arogiaswamy and others, MANU/SC/0726/1996 : AIR 1996 SC 2814, it was noted that the conduct of the defendant cannot be ignored while weighing the question of exercise of discretion for decreeing or denying a decree for specific 11/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 performance. The High Court has, after analyzing the factual position, come to the conclusion that the defendants were really not ready to perform their obligation in terms of the contract and had taken a false plea in the written statement.
The judgment reported in 2009 (6) CTC 301 T.G.Pongiannan Vs. K.M.Natarajan and others, is relied for the proposition of law that in the absence of any plea on the part of the defendants, they cannot expect the Court to concentrate on a point on its own accord.
30.Trite the proposition of law is that in the absence of any plea on the part of the defendants, they cannot expect the Court to concentrate on a point on its own accord.
The judgment reported in 2011 (3) CCC 447 D.Ananda Moorthy Vs. P.Chandrakala, is relied for the proposition that, if there is any written document, wherein, the terms mentioned in unequivocal manner and neither party disputes it, oral evidence is not permissible under Sections 91 and 92 of the Indian Evidence Act.
37.From the close reading of the decisions referred to earlier, the Court can easily discern that in a suit for specific 12/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 performance, the Court has to look into as to whether the party who seeks equity must come with clean hands and further rise in prices of the property in question itself is not a ground for refusal to enforce an agreement of sale.
42.From the cumulative reading of the rival decisions cited by both sides, the Court can very well come to a conclusion that if there is any written document, wherein the terms mentioned in unequivocal manner and neither party disputes it, oral evidence is not permissible under Sections 91 and 92 of the Indian Evidence Act. But, at the same time, if one party has taken a definite stand that particular document is not the document for which it has been executed, in reality it has been executed for some other purpose, the bar created under Sections 91 and 92 of the Evidence Act, is not applicable and in that circumstances, oral evidence is permissible so as to prove the intention of the parties with regard to execution of the document in question.
The judgments reported in 2010 (5) CTC 653 A.Natarajan Vs. Chitra Mills and AIR 2010 SC 3025 Laxman Tatyaba Kankate and others Vs. Taramati Harishchandra Dhatrak, are relied for the proposition that the discretion under Section 20 of Specific Relief Act, 13/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 should be exercised by the Court on fair, just and equitable principles and not arbitrarily.
In the judgment reported in 2010 (5) CTC 653 A.Natarajan Vs. Chitra Mills, it is observed that, 23.6…..As per Section 20 of the Specific Relief Act, discretion as to decreeing Specific Performance, grant of decree for Specific Performance of contract is not automatic and is on of the discretions of the Court and the Court has to consider whether it would be fair, just and equitable. But the discretion of the Court is not arbitrary. But the one of the sound and reasonable and discretion guided by Principles of Justice, equity and good conscience. In the judgment reported in AIR 2010 SC 3025 Laxman Tatyaba Kankate and others Vs. Taramati Harishchandra Dhatrak, it is observed that,
15.The discretion of the Court has to be exercised as per the settled judicial principles. All the aforesaid principles are squarely satisfied in the present case and it is the appellants before us who have taken advantage of the pendency of the proceedings. They have used the sum of Rs.10,000/- which was given as earnest money for all this period, as well as, have enjoyed the fruits of the property. 14/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 The present case does not fall within the ambit of any of the aforesaid cases specified under Section 20 (2) of the Act. In the present case, it is not only lawful but even equity and facts of the case demand that a decree for specific performance should be granted in favour of the demand that a decree for specific performance should be granted in favour of the respondent.
The judgment reported in 2012 (2) MWN (Civil) J.Baskaran Vs. T.Pappa, is relied for the proposition that it is for the person who alleges that the document is not sale agreement but executed in the loan transaction has to prove it.
20.Therefore, having regard to the law laid down by the Hon'ble Supreme Court as well as by this Court in the judgments referred to supra, it cannot be contended by the Appellant that the respondent is not entitled to plead and prove that the document was not intended to be acted upon as agreement of sale, and it was only a loan transaction. Once it is held that the respondent is entitled to plead and prove the document was not intended to be acted upon as agreement of sale, we will have see whether the respondent has proved that it is only a loan transaction.
15/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 The judgment reported in 2021 (4) RCR (Civil) 632 Sughar Singh Vs. Hari Singh (Dead) through L.Rs. and others, is relied for the proposition that the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. Plaintiff cannot be punished by refusing the relief of specific performance, despite proving the execution of sale agreement.
10…….Even the discretion under Section 20 of the Act is required to be exercised judiciously, soundly and reasonably. The plaintiff cannot be punished by refusing the relief of specific performance despite the fact that the execution of the agreement to sell in his favour has been established and proved and that he is found to be always ready and willing to perform his part of the contract. Not to grant the decree of specific performance despite the execution of the agreement to sell is proved; part sale consideration is proved and the plaintiff is always ready and willing to perform his part of the contract would encourage the dishonesty. In such a situation, the balance should tilt in favour of the plaintiff rather than in favour of the defendant - executant of the agreement to sell, while exercising the discretion judiciously.
16/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 The judgments reported in 2019 8 SCC 62 R.Lakshmikantham Vs. Devaraji and AIR 2018 SC 340 Ramathal Vs. Maruthathal and others, are relied for the proposition that if the suit is filed within a period of limitation, delay in filing the suit cannot be put against the plaintiff on the powers of the High Court under Section 100 of C.P.C.
In the judgment reported in 2019 8 SCC 62 R.Lakshmikantham Vs. Devaraji, it is observed that,
11........In the aforesaid circumstances, the High Court was also incorrect in putting a short delay in filing the Suit against the plaintiff to state that he was not ready and willing. In India, it is well settled that the rule of equity that exists in England, does not apply, and so long as a Suit for specific performance is filed within the period of limitation, delay cannot be put against the plaintiff – See Mademsetty Satyanarayana v. G. Yelloji Rao and others AIR 1965 Supreme Court 1405 (paragraph 7) which reads as under:
“(7) Mr. Lakshmaiah cited a long catena of English decisoins to define the scope of a Court’s discretion. Before referring to them, it is necessary to know the fundamental differnece between the two systems-English and Indian-qua the relief of specific performance. In England the relief of specific performance pertains to the domain of equity; in 17/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 India, to that of statutory law. In England there is no period of limitation for instituting a suit for the said relief and, therefore, mere delay – the time lag depending upon circumstances – may itself be sufficient to refuse the relief; but, in India mere delay cannot be a ground for refusing the said relief, for the statute prescribes the period of limitation. If the suit is in time, delay is sanctioned by law; if it is beyond time, the suit will be dismissed as barred by time in either case, no question of equity arises.” In the judgment reported in AIR 2018 SC 340 Ramathal Vs. Maruthathal and others, it is observed that,
15. When the intention of the legislature is so clear the courts have no power to enlarge the scope of Section 100 for whatsoever reasons. Justice has to be administered in accordance with law. In the case on hand the High Court has exceeded its jurisdiction by reversing the well considered judgment of the courts below which is based on cogent reasoning. The learned judge ought not to have entered the arena of re appreciation of the evidence, hence the whole exercise done by the high court is beyond the scope and jurisdiction conferred under section 100 of CPC.
22.The buyer has taken prompt steps to file a suit for specific performance as soon as the execution of the sale was stalled 18/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 by the seller. From this discussion, it is clear that the buyer has always been ready and willing to perform his part of the contract at all stages. Moreover it is the seller who had always been trying to wriggle out of the contract. Now the seller cannot take advantage of their own wrong and then plead that the grant of decree of specific performance would be inequitable. Escalation of prices cannot be a ground for denying the relief of specific performance. Specific performance is an equitable relief and granting the relief is the discretion of the court. The discretion has to be exercised by the court judicially and within the settled principles of law.
10.In response, learned counsel for the respondents submitted that deceased first defendant Pathianathan had not signed the sale agreement.
This very fact shows that the sale agreement is a created sale agreement. The sale agreement had come into the existence in a loan transaction between the appellant and second respondent. Appellant is not aware of the location of the suit properties and its extent. Therefore, the very claim that he entered into a sale agreement with the respondents is not correct. The signature in Ex.A2 and A3 are forged with the help of persons inimical towards the respondent. The attestors to the document 19/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 is not examined. If really Ex.A1 agreement was executed for the purpose of sale, the appellant should have taken steps to execute the sale deed before the completion of the period specified. The fact that Ex.A2 and A3 endorsements had been made purportedly for the alleged payment of further advance amount show that it is not really a sale agreement, but a document came into existence during the course of loan transaction. Thus, considering the available evidence, the learned First Appellate Court reversed the finding of the trial Court and found that appellant is not entitled for the relief of specific performance, but entitled to alternative relief of refund of advance amount of Rs.4,14 ,066/- with interest. Thus, he prayed for confirming the judgment of the First Appellate Court and for the dismissal of this Second Appeal.
11.Learned counsel for the respondents relied on the following judgments with regard to the jurisdiction of the Court to entertain the second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. 1)AIR 1959 SC 57 Deity 20/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 Pattabhiramaswamy Vs. S.Hanyamayya and others, it is observed that,
13. The finding on the title was arrived at by the learned District Judge not on the basis of any document of title but on a consideration of relevant documentary and oral evidence adduced by the parties. The learned Judge, therefore, in our opinion, clearly exceeded his jurisdiction in setting aside the said finding. The provisions of Section 100 are clear and unambiguous. As early as 1891, the Judicial Committee in Durga Chowdhrani v. Jawahir Singh stated thus: “There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be”. The principle laid down in this decision has been followed in innumerable cases by the Privy Council as well as by different High Courts in this country. Again the Judicial Committee in Midnapur Zamindari Co. v. Uma Charan further elucidated the principle by pointing out: “If the question to be decided is one of fact it does not involve an Issue of law merely because documents which are not instruments of title or otherwise the direct foundation of rights but are merely historical documents, have to be construed.” 16. Nor does the fact that the finding of the 21/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 first appellate court is based upon some documentary evidence make it any the less a finding of fact (See Wali Mohammad v. Mohammad Baksh, 11 Lahore 199). But, notwithstanding such clear and authoritative pronouncements on the scope of the provisions of Section 100 of the CPC, some learned Judges of the High Courts are disposing of second appeals as if they were first appeals. This introduces, apart from the fact that the High Court assumes and exercises a jurisdiction which it does not possess, a gambling element in the litigation and confusion in the mind of the litigant public. This case affords a typical illustration of such interference by a Judge of the High Court in excess of his jurisdiction under Section 100 of the CPC. We have, therefore, no alternative but to set aside the decree of the High Court on the simple ground that the learned Judge of the High Court had no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. In the result, the decree of the High Court is set aside and the appeal is allowed with costs throughout.
2)In the judgment reported in AIR 1959 SC 1204 Paras Nath Thakur Vs. Mohani Dasi and others, it is observed that, 22/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019
3.It is manifest that the question to be determined by the High Court on the Second Appeal was essentially one of fact. That the High Court was cognizant of this aspect of the case appears from the following observation with which the decision of the High Court begins:
“In Second Appeal the substantial point urged before us is whether the evidence, both oral and documentary, would warrant an inference that the properties had in fact been dedicated to the deity” It is well settled by a long series of decisions of the Judicial Committee of the Privy Council and of this Court, that a High Court, on second appeal, cannot go into questions of fact, however erroneous the findings of fact recorded by the courts of fact may be. It is not necessary to cite those decisions.
3)AIR 1962 SC 1314 Sir Chunilal V. Mehta and sons ltd., Vs. Century Spinning and Manufacturing Co. Ltd., and
4)In the judgment reported in AIR 1998 SC 3063 Sheel Chand Vs. Prakash Chand, it is observed that,
7.The question of law formulated by the learned Single Judge, noticed above, strictly speaking is not even a question of law, let alone a substantial question of law. The existence of a substantial question of law. The existence of a 23/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 'substantial question of law', is the sine qua non for the exercise of jurisdiction by the High Court under the amended provisions of Section 100 CPC. It appears that the learned Single Judge over looked the change brought about to Section 100 CPC by the Amendment made in 1976. The High Court unjustifiably interfered with pure questions of fact while exercising jurisdiction under Section 100 CPC. It was not proper for the learned Single Judge to have reversed the concurrent findings of fact while exercising jurisdiction under Section 100 CPC.
12.On what amounts to substantial question of law, the following judgments are placed for consideration, 1)1999 (9) SCC 248 Nailnakshi N.Rai Vs. Indira Shetty, 3….The question framed for consideration in second appeal by the learned judge read as under, “the question that is involved in the second appeal is whether the Will executed by babu shetty in favour of Narayana of his 1/4th share under Ex.D.1 can be believed or not.''
4.Such a question is not a question of law, much less a substantial question of law.
2)In the judgment reported in AIR 1999 SC 2213 Kondiba Dagadu 24/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 Kadam Vs. Savitribai Sopan Gujar and others, it is observed that,
3....The conditions mentioned in the Section must be strictly fulfilled before a second appeal can be maintained and no Court has the power to add to or enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts howsoever erroneous cannot be disturbed by the High Court in exercise of the powers under this Section.
3)In the judgment reported in AIR 2001 SC 2920 Veerayee ammal Vs. Seeni Ammal, it is observed that,
10.The question of law formulated as substantial question of law in the instant case cannot, in any way, be termed to be a question of law much less as substantial question of law. The question formulated in fact is a question of fact. Merely because of appreciation of evidence another view is also possible would not cloth the High Court to assume the jurisdiction by terming the question as substantial question of law.
13.The judgments reported in 1)AIR 1982 SC 20 Gangabai Vs. Chhabubai, 2)2000 (1) LW 389 Hindu Public and another Vs. Rajdhani Puja Samithee and others, are placed to enlighten the bar 25/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 under Sections 91 and 92 of the Indian Evidence Act.
1)In the judgment reported in AIR 1982 SC 20 Ganganao Vs. Chhabubai, it is observed that,
11.......It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and intent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms. The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party asserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties.
2)In the judgment reported in 2000 (1) LW 389 Hindu Public and 26/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 another Vs. Rajdhani Puja Samithee and others, it is observed that,
19.....On this aspect, the Assistant Commissioner rejected the oral evidence as inadmissible as it contradicts the recitals in the deed of registration of the Society in view of sections 91 and 92 of the Evidence Act. In our view, this is not correct in law. Oral evidence could be adduced to show that the recitals in a deed were nominal or were not intended to be acted upon or that they were not meant to alter the existing state of affairs. Oral evidence could therefore be issued to show that the Society's main concern was the celebration of the Durga puja festivals etc. and that other activities were subsidiary. Therefore, the Deputy Commissioner was right in relying on this part of the oral evidence.
14.On readiness and willingness, and its effect in a suit filed for seeking the relief of specific performance, the following judgments are relied, i)AIR 1993 SC 1742 Chand Rani (dead) by Lrs. Vs. Kamal Rani (dead) by Lrs,
24.From an analysis of the above case-law it is clear that in the case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of the contract the Court may 27/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 infer that it is to be performed in a reasonable time if the conditions are:
1.from the express terms of the contract;
2.from the nature of the property; and
3.from the surrounding circumstances, for example : the object of making the contract.
ii)In the judgment reported in 1995 (2) MLJ 118 (SC) N.P.Thirugnanam Vs. Dr.R.Jagan Mohan Rao, it is observed that,
5.It is settled law that remedy for specific performance is an equitable remedy and is in the discretion of the court, which discretion requires to be exercised according to settled principles of law and not arbitrarily as adumbrated under s.20 of the Specific Relief Act 1963 (for short, 'the Act'). Under s.20, the court is not bound to grant the relief just because there was valid agreement of sale. Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant 28/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 and is required to be be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances.
iii)In the judgment reported in AIR 1996 SC 2095 His Holiness Acharya Swami Ganesh Dassji Vs. Sita Ram Thapar, it is observed that, ...What is material in this case is that the respondent was in dire need of cash to celebrate the marriage of his daughter. The petitioner did not offer cash to the respondent. Under those circumstances, the High Court was clearly right in saying the the petitioner was not ready willing to perform his part of the contract under clause (c) of Section 16 of the Specific Relief Act.
iv)In the judgment reported in 2002 (9) SCC 582 Pushparani S.Sundaram and others Vs. Pauline Manomani James (Deceased) and others, it is observed that, 29/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019
6....... Section 16(c) of the Specific Relief Act, requires that not only there be a plea of readiness and willingness but has to be proved so. It is not in dispute except for a plea there is no other evidence on record to prove the same except the two circumstances. It is true that mere absence of plaintiff coming in the witness box that by itself may not be a factor to conclude that he was not ready and willing in a given a case as erroneously concluded by the High Court. But in the present case, not only the plaintiff has not come in the witness box, but not even sent any communication or notice to the defendant about his willingness, to perform his part of the contract. In fact no evidence is led to prove the same.
v)In the judgment reported in 2000 (7) SCC 379 Surjit Kaur Vs. Naurata Singh and another, it is observed that, x
11.It is also settled law that specific performance cannot be granted to a party who has not been ready and willing at all stages to perform the contract. Of course, the 1st Respondent was ready and willing to perform the contract in its entirety. To that extent there would be readiness and willingness on the part of the 1st Respondent. But in cases where a contract is not capable of being performed in whole then the readiness and willingness, at all stages, is the readiness and willingness to accept part performance. If a contract is not capable of being performed in whole and a party clearly indicates that he is not willing to accept part performance, then there is no readiness and willingness, at all stages, to accept part performance. In that case there can be no specific performance of a part of the contract at a later stage.
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15.Considered rival submissions and perused the records.
16.It is seen from the pleadings and the evidence produced in this case that there is no dispute with regard to the fact that the suit properties allotted to the deceased first defendant Pathianathan in a partition between him and his brother David on 26.04.1982. The sale agreement is marked as Ex.A1. The perusal of Ex.A1 sale agreement shows that, though it is claimed that Pathiyanathan his son John philip, John philip's children are parties to this agreement to sell the suit properties to the appellant, this agreement was not signed by Pathianathan on the date of sale agreement dated 21.04.2008. As per this sale agreement, it is claimed that the properties covered under the sale agreement belong to defendants 1 to 4 through Kurinjipaadi Sub Registrar's document Nos.2239 / 1952, 2386 / 1954, 3806 / 1942, 3847 / 1961, 2158 / 1946, 2157 /1946, 3764 / 1937; second party through Vadalur Sub Registrar's document No.1673 / 2000, 1478 /1998, 846 / 1996, 534 / 1994, 939 / 31/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 1993; to the third party through Vadalur Sub Registrar's document No.1378 / 1988. There are ten items of properties to the total extent of 3.18 ¾ acres. However, the appellant has not produced any other title deed except Ex.A7. Ex.A7 is the partition deed between deceased Pathianathan and his brother David. Through this partition deed, Pathianathan was allotted 'A' schedule properties in the partition deed. Ex.A7 relates to only some items of item No.1, item No.4 and 7 of the suit properties. For the rest of the suit properties, there is no prior title deeds produced to show that respondents own these properties.
17.The sale consideration was fixed as Rs.5,10,000/- and an advance of Rs.3,00,000/- said to have been paid on 21.04.2008. The period for completion of sale was fixed as one month from 21.04.2008. One day prior to the completion of the one month period, there is an endorsement made in the sale agreement that the first respondent received an additional sum of Rs.50,000/- as advance. It is also claimed that there is a delay in getting the presence of his father and agreement period said to have been extended for two months. Then, on 11.07.2008, 32/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 there is yet another endorsement by deceased first defendant Pathianathan. This endorsement is said to have been written with the own hand writing of the Pathianathan, wherein , he claimed that he was not in station when the agreement was executed and it was executed as per his instructions. He agreed for this agreement and received a sum of Rs.50,000/- as advance on 11.07.2008. Since, he is not well, he wanted extension of further time for one month for completing the sale. These two endorsements had been marked as Ex.A2 and A3.
18.Respondents disputed Ex.A2 and Ex.A3. Respondents denied the execution of Ex.A2 and A3 endorsements marked, particularly, the Ex.A3 endorsement alleged to have been made by the deceased first defendant pathianathan. The disputed signatures with the admitted signatures were sent to handwriting expert's opinion. The handwriting expert DW2 Thamaraiselvan, gave Ex.C1 report. This report confirmed that the questioned signature in Ex.A3 is that of Pathianathan. Thus, learned counsel for the appellant claimed that though Pathianathan had not originally joined in executing the sale agreement, he made Ex.A3 33/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 endorsement acknowledging and admitting the sale agreement, and received a further sum of Rs.50,000/-. When that be the case, it is not open to the respondents to contend that Ex.A1 is only a document executed in connection with loan transaction. Appellant was always ready and willing to perform his part of contract, it was only the respondents, who evaded in executing the sale deed. Only at the behest of the respondents, the time for performance of the contract was extended and it shows that time was not considered as essence of the contract.
19.Appellant examined PW1 to PW3 to prove Ex.A1 sale agreement and Ex.A2 and Ex.A3 endorsements. Appellant was examined as PW1, one Arokiasamy was examined to prove Ex.A3 endorsement. One Selvam, document writer was examined to prove Ex.A1 sale agreement. Anbu Arokiadas and Anthoni Sami who were the attestors to sale agreement and Ex.A2 and Ex.A3 endorsements were not examined. Learned counsel for the respondents submitted that the non examination of these witnesses shows that they are not willing to give false evidence 34/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 and it shows that Ex.A1 sale agreement and Ex.A2 and Ex.A3 endorsements are not true. Selvam had only prepared a document and therefore, his evidence with regard to the execution of sale agreement cannot be accepted. PW2, Arokiasamy is inimical towards the respondents for the reason that his daughter married first respondent's pangali's son, there is some strain in the marriage and therefore, there is enmity between them. To settle score, PW2 Arokiasamy, is giving false evidence against respondent.
20.The evidence of PW1 and DW1 is very much relevant to understand the case. Ex.A1 sale agreement came into existence, especially when it is claimed by the respondents that appellant is totally not aware of the location and extent of 'A' schedule properties.
21.PW1 reiterated this case in his proof affidavit. It is claimed in the plaint and in the proof affidavit that in item No.10, only 22 cents is available as against claim of 56 cents. In Item No.1, only 6 cents is available as against the claim of 37 cents. Survey Nos.44/6 and 44/7 had 35/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 been repeated twice in the sale agreement. Though, an extent of 3.18 3/4 acres is mentioned in the sale agreement, the claim now made is only for 2.30 acres shown in 'B' schedule properties. Thus, averment made in the plaint and proof affidavit clearly show that appellant has not made any verification with regard to the title of the respondents in the suit properties and the extent of properties owned by them. As already stated, except Ex.A7 partition deed, other prior title deeds of respondents are not produced before the Court to find out whether respondents have right to execute the sale agreement and sell the properties.
22.PW1 in the course of his cross examination, admitted that he did not know the boundaries of the suit properties and the distance between his property and the suit properties. It is his admission that, he did not verify encumbrance before executing the sale agreement and did not verify who is the owner of the properties. He consciously admitted that he did not properly verify the previous title deeds relating to the suit properties. He did not know whether the suit properties belong only to the first defendant. He admitted that he has not sent notice within the 36/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 stipulated period stating that he was ready to execute the sale deed. PW3 admitted that he signed Ex.A1 as document writer. PW2 admitted that, his daughter married pangali's son of the first respondent. Though, it is evident from the evidence of DW2 and Ex.C1 and Ex.C2 that the Ex.A3 endorsement was made by the deceased Pathianathan, the circumstances available in this case like, the failure of getting a signature of Pathianathan, on the date of execution of sale agreement, repeated extension of time by paying partial consideration, failure to examine the other attestors to Ex.A1 sale agreement and Ex.A3 endorsement, failure to give notice within the time stipulated under Ex.A1 sale agreement for execution of sale agreement create strong doubt as to whether Ex.A1 sale agreement was really intended to be a sale agreement. The possibility of its execution in connection with the loan transaction cannot be ruled out, in the light of the specific defence raised by the respondents. The fact that P.W.1 has not verified the details regarding the title, encumbrance, extent of the properties intended to be purchased strengthens this view.
23.Learned counsel appearing for the parties, cited above said 37/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 judgments on every conceivable legal issue on the specific performance relief, especially in a suit relating to specific performance of an agreement of sale of an immovable property. There is no two opinions with regard to the propositions laid down in the judgments referred by the counsel appearing for the parties. The fact of the matter is, whether the proposition laid down in the judgments can be applied to the facts and circumstances of this case. It is no doubt that in second appeal, this Court cannot go into questions of fact, however, erroneous findings of the fact referred by the Courts recorded. Both the sides have cited judgments aforesaid, as to import and purpose of Section 91 and 92 of the Indian Evidence Act. Section 91 deals with the situation where, terms of contract have been reduced to the form of a document. In such cases, no evidence shall be given in proof of terms, on such contract except the documents itself. Relying on this, learned counsel for the appellants submitted that the respondents are not entitled to give evidence contrary to the recitals in Ex.A1 sale agreement. However, Proviso (1) of Section 92, provides that, any fact may be proved, which would invalidate any document, or which would entitle any person to any decree or order 38/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 relating thereto, such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, ( want of failure) of consideration, or mistake in fact or law.
24.It is found from the evidence produced that Ex.A1 sale agreement could have been executed only for the purpose of a loan transaction. The circumstances surrounding, the execution of Ex.A1 sale agreement, discussed above confirms that Ex.A1 sale agreement could have been executed only for the purpose of loan transaction and not really intended to be a sale agreement. Ordinary rules is that specific performance should be granted. When there are evidences to support the case of the respondent that Ex.A1 sale agreement was not executed intending to sell the property, but executed in connection with the loan transaction, the settled proposition is that specific performance relief cannot be granted. When the sale price was only Rs.5,10,000/- and a sum of Rs.3,00,000/- was paid even on the date of sale agreement on 21.04.2008 to the defendants 2 to 4, there is a genuine question arises, why instead of executing a sale agreement, further part payments were 39/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 made on 20.05.2008 and on 11.07.2008. The time fixed for completion of sale is one month from 20.05.2008. Appellant has not taken any steps to enforce the execution of sale within a stipulated period and showcase his readiness and willingness to perform his part of the contract. On the other hand, he paid additional advance amounts on 20.05.2008 and on 11.07.2008 and extended the time for performance of completion of sale. The terms, though relatable to sale agreement, the manner in which sale agreement was executed without including the first defendant, without knowing the details of the property and its extent, repeated extension of time as indicated earlier, not taking steps to conclude the sale within the contracted period prove that Ex.A1 was executed only in connection with the loan transaction.
25.The relief of specific performance is a discretionary relief. Considering the aforesaid, doubtful circumstances surrounding the execution of sale agreement, this Court is of the considered view that ordering specific performance of the contract is not an appropriate relief. First Appellate Court rightly reversed the judgment of the trial Court and modified the decree to the effect that the appellant is entitled only for the 40/43 https://www.mhc.tn.gov.in/judis S.A.No.74 of 2019 refund of advance amount of Rs.4,14 ,066/- with interest. This Court finds no reason to interfere with the judgment of the First Appellate Court and this Second Appeal is dismissed. Thus, the substantial question of law is answered against the appellant.
26.In the result, this Court confirms the judgment and decree passed in A.S.No.63 of 2012 on the file of the Principal District Judge, Cuddalore, dated 02.01.2017 reversing the judgment and decree passed in O.S.No.118 of 2008 on the file of the Principal Subordinate Judge, Cuddalore, dated 15.12.2011 and dismisses Second Appeal in S.A.No.74 of 2019, with the costs of the respondents.
Ep 27.04.2022
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
1. The Principal District Judge,
Cuddalore.
2. The Principal Subordinate Judge,
Cuddalore.
3. The Section Officer,
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https://www.mhc.tn.gov.in/judis
S.A.No.74 of 2019
VR Section,
High Court of Madras.
G.CHANDRASEKHARAN.J,
ep
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https://www.mhc.tn.gov.in/judis
S.A.No.74 of 2019
(Pre-Delivery Judgment in)
S.A.No.74 of 2019
27.04.2022
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https://www.mhc.tn.gov.in/judis