Madras High Court
Vidyasekar vs Muthulakshmi on 21 December, 2006
Author: G.Rajasuria
Bench: G.Rajasuria
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 21/12/2006 CORAM: THE HON'BLE MR. JUSTICE G.RAJASURIA APPEAL SUIT No.957 OF 1992 1. Vidyasekar 2. K.Murugan .. Appellants Defendants. vs Muthulakshmi .. Respondent Plaintiff. Appeal Suit filed under Section 96 C.P.C. against the judgment and decree dated in O.S.No.881 of 1990 on the file of the Principal Subordinate Judge, Madurai. !For appellants : Mr.S.V.Jayaraman, Senior Counsel for Mr.R.Thamodaran. ^For respondent : Mr.S.S.Sundar, for Mr.T.R.Rajaraman. :JUDGMENT
This appeal is directed against the judgment and decree dated 30.9.1992 in O.S.No.881 of 1990 on the file of the Principal Subordinate Judge, Madurai.
2. The facts giving rise to the filing of the suit as stood exposited from the plaint inter alia would run thus:
The first defendant being the owner of the property described in the schedule of the plaint measuring an extent of 17-1/2 cents and the plaintiff who is the lessee under him in respect of the same property, entered into an agreement to sell by which the former agreed to sell to the latter the suit property for a sale consideration of Rs.9,000/- per cent. On behalf of the plaintiff, the plaintiff's husband Pitchai, her brother Subramanian and her brother's friend P.Subramaniam approached the first defendant's brother Kulasekaran on 15.3.1990 on coming to know about the proposal to sell that property under the leasehold right of the plaintiff. Whereupon Kulasekaran explained to them that in an oral partition the property under the leasehold of the plaintiff, was allotted to his brother, the first defendant. Thereupon those three persons on behalf of the plaintiff, on 16.3.1990 met the first defendant at his residence and negotiated with him and ultimately the first defendant agreed to sell the suit property in favour of the plaintiff at the rate of Rs.9,000/- per cent and in token of such oral agreement a sum of Rs.101/- was paid to the first defendant by the plaintiff's brother Subramaniam on behalf of the plaintiff. As such the oral agreement to sell was concluded on that day itself. However, such oral agreement was agreed to be reduced into writing on an auspicious day after 26.3.1990 in "Valarpirai" and that a sum of Rs.25,000/-, deducting the said advance the sum of Rs.101/-, was agreed to be paid by the plaintiff to the first defendant. Time limit fixed was three months from that date. On 26.3.1990 when the same three persons approached the first defendant for reducing such oral agreement into writing, the defendant and his wife told them that they were not willing and that they had decided to sell the suit property to the second defendant's father Kandasamy Nadar for a sale price of Rs.9,300/- per cent for which the plaintiff's representatives objected. There was wordy altercation between them. Thereafter the plaintiffs filed the suit O.S.No.322 of 1990 on the file of I Addl. Subordinate Judge, Madurai, so as to restrain the first defendant from alienating the suit property quite as against the oral agreement referred to above. Subsequently, the first defendant issued notice for evicting the plaintiff and from such notice, it transpired that the first defendant allegedly entered into an agreement to sell the suit property with the second defendant. Hence the suit for specific performance.
3. Per contra, denying and disputing, gainsaying and challenging the averments/allegations in the plaint, the first defendant filed the written statement inter alia which would run thus:
There was no agreement to sell as referred to in the plaint at all. No such negotiations took place between the first defendant and the alleged representatives of the plaintiff. Defendants 1 and 2 entered into an agreement to sell even before the date of alleged oral agreement to sell with the plaintiff. No advance much less, a sum of Rs.101/- as advance was ever received from Subramaniam as alleged in the plaint. Accordingly, he prayed for dismissal of the suit.
4. The second defendant filed his written statement inter alia with the averments which could be portrayed thus:
Defendants 1 and 2 entered into an agreement to sell on 5.3.1990 and the former agreed to sell to the latter the suit property at the rate of Rs.9,300/- per cent within a period of three months. It was also agreed between them that a sum of Rs.50,000/- (Rupees fifty thousand only) was payable by the second defendant to the first defendant under two instalments. Accordingly, the second defendant prayed for dismissal of the suit.
5. The trial Court framed issues and during trial the plaintiff examined herself as P.W.1 along with P.Ws.2 to 7 and Exs.A.1 to A.34 were marked. On the defendants' side, the first defendant examined himself as D.W.1 along with D.W.2 and the second defendant examined himself as D.W.3. Exs.B.1 to B.7 were marked on the defendants side. The trial Court ultimately decreed the suit for specific performance and also granted the alternate plea for refund of advance of Rs.101/- in the event of the plaintiff not depositing the balance sale consideration. However, the decree of the trial Court was not drafted so explicitly and properly. Being aggrieved by the judgment and decree of the trial Court, the defendants preferred this appeal on the following main grounds among others:-
(a) The trial Court failed to appreciate the evidence on the side of the defendants properly.
(b) The trial Court ought to have held that the plaintiff did not prove her case of oral agreement.
(c) Witnesses examined on the side of the plaintiff are all close relatives and interested witnesses and this fact was overlooked by the trial Court.
(d) The trial Court wrongly held as though P.Ws.1 to 6 were present at the time of the alleged oral agreement on 16.3.1990 even though admittedly, P.Ws.1 to 3 were not present at the time of the alleged oral agreement as per their own versions.
(e) P.W.4 the husband of the plaintiff deposed as though a sum of Rs.101/-
was paid as total advance under the alleged oral agreement to sell whereas the plaint averments would be as though the sum of Rs.101/- was only a token as advance.
(f) The trial Court failed to hold that no one would pay an advance of Rs.101/- for a land worth Rs.15,00,000/-.
(g) Before 16.3.1990 the plaintiff and her people did not know the first defendant personally and that fact was overlooked by the trial Court.
(h) The trial Court failed to hold that there was no privity of contract between the plaintiff and the first defendant.
(i) There was no evidence that on 26.3.1990 a sum of Rs.25,000/- was sought to be paid to the first defendant by the alleged representatives of the plaintiff.
(j) The trial Court was wrong in rejecting Exs.B.6, B.7 and B.11.
(k) The trial Court failed to take into consideration the sum of Rs.40,000/- paid by the second defendant to the first defendant on 9.3.1990 by way of cheque.
(l) The trial Court was wrong in holding that page Nos.138 to 154 in Ex.B.15 were removed and new pages were inserted incorporating the alleged payment of advance by the second defendant to the first defendant.
(m) The trial Court failed to note that Exs.A.30, document stamp papers have been fabricated by the plaintiff for the purpose of attacking the agreement to sell between the first defendant and the second defendant.
(n) The trial Court failed to note that Section 16 of the Specific Relief act was not adhered to by the plaintiff and no notice of her readiness to perform her part of the contract under the alleged oral agreement was sent by her to the first defendant.
Accordingly, the appellants/defendants prayed for setting aside the judgment and decree of the trial Court and for dismissing the suit.
6. The points for consideration are as follows:
(i) Whether there was an oral agreement to sell which emerged on 16.3.1990 between the plaintiff and the first defendant and whether under such oral agreement Rs.101/- was paid to the first defendant?
(ii) Whether there is any infirmity in the judgment and decree of the trial Court?
(iii) To what relief?
7. On points: Tersely and briefly, the case of the plaintiff could be portrayed to the effect that she seeks specific performance of an oral agreement to sell concerning the suit property admeasuring 17.5 cents which has been already under the possession of the plaintiff as lessee. On the contrary, the warp and woof, the pith and marrow of the case of the first defendant is that there was no oral agreement to sell, much less any intention to sell the suit property in favour of the plaintiff in view of the first defendant already having entered into a written agreement to sell with the second defendant concerning the suit property.
8. Right at the outset, I may observe that the onus of proof is on the plaintiff to prove that there was oral agreement between the plaintiff and the first defendant, which fact should not be lost sight of while scrutinising the evidence on record. The plaintiff would rely on the evidence of P.Ws.4,5 and 6, who, according to her, negotiated with the first defendant on 16.3.1990 and got concluded with the first defendant an oral agreement to sell relating to the suit property measuring 17. cents in which she is in possession by enjoying it as lessee or licensee following, her father who was in enjoyment of the said property as a lessee/licensee. At this juncture, it is worthwhile to refer to the fact that to constitute valid agreement there should be consensus ad idem so to say meeting of mind between the contracting parties - plaintiff and the first defendant herein. At once, it is clear that there was no such meeting of mind between the plaintiff and the first defendant at all at any point of time relating to any oral agreement to sell or even any proposal to sell. The incontrovertible and indubitable fact is that there was no talk of oral agreement to sell by the plaintiff to the first defendant. The core question arises in such a case is where is the question of oral agreement between the plaintiff and the first defendant, as canvassed by the plaintiff in this case. Learned counsel for the plaintiff would at once come forward with his argument that even though the plaintiff herself did not participate in any such oral agreement yet on her behalf, P.W.4, the plaintiff's husband, P.W.5, the plaintiff's brother and P.W.6, the friend of P.W.5, for and on behalf of the plaintiff negotiated with the first defendant on 16.3.1990 at the residence of D.W.1 (first defendant) and got the oral agreement to sell concluded. The pertinent question arises as to whether either of the witnesses P.Ws.4 to 6 happened to be the power of attorney of the plaintiff for which absolutely there is no iota or shred of evidence. There is nothing on record to show that P.Ws.4, 5 and 6 are legally competent to enter into any contract on behalf of the plaintiff. It is a well known maxim that "a husband can break his wife's leg and not her watch" thereby stressing the point that the husband's personality is different from wife's personality relating to property rights and it cannot be assumed or presumed that the husband is having authority to contract on behalf of the wife. It has, therefore, become all the more important that this Court should look for clinching evidence to prove that P.Ws.4, 5 and 6 had the competence or the authority to enter into contract. It is common knowledge that for and on behalf of a lady, her husband or relatives in this part of the country can negotiate with persons orally. But when the question of agreement comes, there should be clear evidence that the contracting parties actually participated in the contract, and consciously enter into the contract. Any amount of evidence on oath by the plaintiff that she only authorised P.Ws.4 to 6 to negotiate and enter into contract, would not constitute authority to enter into a contract on her behalf and for that matter the evidence of P.Ws.4 to 6 that they were authorised by P.W.1 to enter into contract also would not be sufficient. It is a trait proposition of law that power of attorney should be in writing and it cannot be oral and these are fundamentals in the field of law and well recognised. Even an agreement to sell may be oral as per law, but authorisation to enter into an agreement, cannot be oral and it must be in writing in the way known to law. Nothing short of power deed would link the contractual connection between the plaintiff and the first defendant.
9. In this connection, the learned Senior counsel for the first defendant would correctly develop his argument by focussing on the point that in this case it is not known as to whether the plaintiff was the contracting party or along with her any or all of P.Ws.4 to 6 are the contracting parties. In this connection it is just and necessary to refer to the deposition of P.Ws.4, 5 and
6. P.W.4 in his further chief-examination would state that P.W.4 had no contractual connection directly with the first defendant and he along with P.Ws.5 and 6 went there to negotiate on behalf of his wife. However, P.W.5 in his deposition and cross-examination would state otherwise and it is extracted here under:
||16.3.1990k; njjp md;W Kj;J yl;Rkpf;fhft[k; vdf;fhft[k; vd; FLk;gj;jpw;fhft[k; nghndd;. thjpaplk; brhy;yptpl;L jhd; nghndhk;. 16.3.90k; njjp khiyapy; ele;j rk;gtj;ij md;W ,ut[ 9 kzp nghy; thjpaplk; ehd; brhd;ndd;. ehq;fs; ,e;j bjhHpiy nrh;e;J bra;fpnwhk; vd;gjw;F hpf;fhh;L xd;Wk; ,y;iy. gpuhJf;F jfty; ehDk; nrh;e;J jhd; brhd;ndd;.|| However, as such the version of P.W.5 would indicate and highlight as though the oral agreement was on behalf of P.W.1 as well as on his behalf as he happened to be the brother of the plaintiff and also doing business along with her whereas P.W.1 in her deposition would state as follows:
||vd; fzth;> vd; jk;gp> vd; jk;gpapd; rpnefpjh; :K:tUk; ngrg; nghdhh;fs;. vd; ngUf;F ngRtjw;fhfj;jhd; vd; jk;gp nghdhh;. mjw;fhf vGj;J K:ykhf mtUf;F gth; vGjpf; bfhLf;ftpy;iy. Vbddpy; mf;fh jk;gpf;Fs; vjw;F vd;Wjhd;.|| (emphasis supplied) As such the learned Senior Counsel for the first defendant is right in his argument that in addition to other aforesaid defects in the plaintiff's case there is no specificity or certainty in the case as put forth by the plaintiff as to whether the oral agreement was allegedly entered into on behalf of the plaintiff or on behalf of her brother P.W.5 also.
10. Learned Senior Counsel for the first defendant would correctly offer his comment that at paragraph No.7 of the judgment of the trial Court, it assumed and presumed as though P.Ws.1 to 6 have participated in the discussion relating to oral evidence. Such an attitude on the part of the trial Court in making such sweeping statement without going into the details of the deposition has to be deprecated. The perusal of the trial Court's judgment, in no way reveals on what basis it held that there was valid oral agreement to sell.
11. Learned counsel for the plaintiff in his written arguments would exhaustively refer to the deposition of various witnesses and try to canvass the plaintiff's case that there was actually agreement to sell. Hence it is just and necessary to probe into the fact, whether as per evidence of the plaintiff's witnesses, there was actually any negotiation and ultimately a concluded oral agreement to sell. Before discussing the evidence of witnesses threadbare, it is just and necessary to refer to the plaint averments, then only it would be clear whether the plaint averments and the deposition of evidence do hang together or not, paragraph No.9 of the plaint is extracted hereunder for ready reference.
"It was also further agreed that sale agreement to the terms agreed was to be reduced to in writing in an auspicious day after 26.3.1990 in Valarpirai on that day a sum of Rs.25,000/- less Rs.101/- was agreed to be paid to the 1st defendant as advance and from the date within a period of three months the sale was agreed to be registered."
Here I would like to record my views as found evinced and evidenced, disclosed and divulged expressed and expatiated, from the averments in paragraph No.9 of the plaint. The averments in paragraph No.9 would demonstrate that P.W.4, 5 and 6 negotiated for sale on 16.3.1990 at the house of D.W.1. The words used in plaint are "it was decided by both parties that only 17. cents out of lease site was agreed to be purchased by the plaintiff and the sale price was fixed at Rs.9,000/- per cent." Admittedly, the plaintiff was not present and even the plaintiff would say that the contract was not concluded. Here alone the crucial law point arises. P.Ws.4, 5 and 6 are not the power of attorneys of the plaintiff and there is nothing to show that consequent upon such negotiation on 16.3.1990, the plaintiff was informed about all their alleged negotiations with the first defendant and conveyed the same to the plaintiff and that the plaintiff concurred or approved such a deal relating to the suit property. The important link is missing. In such a case, it is not known as to how the theory of oral agreement as tried to be canvassed, could be countenanced and declared. It is not the case of the plaintiff that on 16.3.1990, those three persons, on her behalf, went to the first defendant's house so as to convey the intention of the plaintiff relating to a matter which was already discussed, after negotiation relating to certain terms and conditions. As such, in this manner the defect in the plaintiff's case are multifarious and hence the plaintiff's theory, in the facts and circumstances of the case, is totally untenable. This is a crucial admission made by the plaintiff himself which the trial Court has lost sight of. A plain reading of the paragraph Nos.9 and 10 of the plaint would clearly show that even though on behalf of plaintiff, P.Ws.4 to 6 did not opt for a written agreement to sell, the first defendant insisted to it and that would itself speak volume that there was no concluded oral agreement to sell on that day. The plaintiff cannot be heard to say that only there was disagreement relating to emergence of a written agreement and not disagreement relating to actual oral agreement to sell. The plaintiff's version would go against the case of the plaintiff for the reason that without one of the contracting parties, viz., the first defendant's willingness there could be no concluded contract. Nothing short of a written agreement would satisfy the first defendant as per plaint itself, then there will be no question of oral agreement at all. It is therefore, clear that even as per the very version in the plaint, the theory of oral agreement falls to the ground as it had no legs to stand. The normal intention of party should be considered. Here, according to the plaintiff, the first defendant insisted for written agreement to be entered into on the auspicious day after 26.3.1990 and that on that day advance of Rs.25,000/- should be paid by the plaintiff to the first defendant deducting the alleged sum of Rs.101/- which was claimed to have been paid as token advance on 16.3.1990. It is a trait proposition of law that preponderance of probabilities would govern the adjudication in civil cases. The plaintiff himself has chosen to describe the alleged sum of Rs.101/- as token advance. P.Ws.4 and 5 would state that on instruction of P.W.4, his relative P.W.5 immediately gave a sum of Rs.101/- as token advance. According to the plaintiff, the suit property measuring 17. cents was agreed to be sold at the rate of Rs.9,000/- per cent and if that be so, the total consideration comes to Rs.1,57,500/-. No one could visualise that a sum of Rs.101/- would ever be given by one contracting party to another contracting party as advance so as to seal and authentify the contract. Realising obviously that the plaintiff cannot put forth a case that Rs.101/- itself is an advance, she has chosen to describe it as 'token advance', but she states that the parties allegedly agreed that the actual advance should be Rs.25,000/- which should be paid at the time of written agreement. What else is necessary to arrive at the conclusion that even as per the plaintiff's version, if taken true what transpired on 16.3.1990 was only a negotiation to enter into an agreement to sell. On that negotiation itself by no stretch of imagination, could be taken as a concluded oral agreement to sell. It is well known that there need not be any advance at all for concluding an agreement to sell, but once the parties agreed that there should be advance for concluding an agreement to entering into agreement to sell and in the absence of it no agreement to sell can be presumed. Here there is candid admission by the plaintiff herself that the first defendant insisted for agreement to sell and also for payment of advance Rs.25,000/- and without which how can the plaintiff by any stretch of imagination could assert that on 16.3.1990 itself there was concluded oral agreement to sell. It is not the case of the plaintiff that the alleged sum of Rs.101/- itself was the advance, Rs.24,899/- was agreed to be paid later. It is the specific case of the plaintiff that Rs.25,000/- was advance and not a sum of Rs.101/-. At the first blush, it may appear the distinction sought to be made by me is one that of tweedle-dum and tweedle-dee. But it cuts at the root of the plaintiff's theory of oral agreement. It is therefore, clear that neither written agreement nor the sum of Rs.25,000/- as advance was paid so as to get an agreement concluded and in the absence of it a concluded oral agreement as though entered on 16.3.1990 cannot be countenanced.
12. The words in the plaint are "It was also further agreed that sale agreement to the terms agreed was to be reduced to in writing in an auspicious day after 26.3.1990 in Valarpirai." Such a version in the plaint clearly indicates that the sale agreement was intended to be reduced in writing obviously with an intention that only thereafter the plaintiff and the defendants could sign and thereby a concluded contract would emerge. Had the plaintiff was participating in the negotiations or discussions on 16.3.1990 at least it could be canvassed that there was meeting of minds between the plaintiff and the first defendant and that it was only agreed to be put in writing on a subsequent date. But that is not the position here. On an auspicious day after 26.3.1990 during "valarpirai" P.W.4,5 and 6 and the first defendant, as per plaint versions agreed to enter into agreement to sell which did not fructify. In paragraph No.10 it was further stated as follows:
"Though the plaintiff was not willing for a written sale agreement and straightaway was for registration of sale deed on payment of the sale price agreed yet the 1st defendant insisted of the written agreement."
13. The aforesaid discussion is mainly focussed on the very averments made in the plaint itself more specifically with reference to the averments of the plaintiff under paragraph Nos.9 and 10 of the plaint. In this connection, the decision of the Delhi High Court reported in HIGH WAY FARMS v. CHINTA RAM (2000 A.I.H.C., 2566) could fruitfully be referred to.
"In respect of the first Receipt dated 22.09.1991 the total consideration is Rs.24,50,000 and admittedly only Rs.21,000/- has been paid. After witnessing; the Receipt of this payment this very document mentions that at the time of the "Agreement" a further sum of Rs.3,00,000/- would be paid. This sentence by itself is sufficient to non-suit the Plaintiff. It is the normal practice in all transactions pertaining to the sale of property that Earnest Money representing approximately ten per cent of the sale consideration is paid/received. Although this would not lead to the inescapable conclusion that every contract where a payment to this extent has been made is liable for Specific Performance, the non-receipt of an approximately similar sum would definitely be indicative that an Agreement was yet to be arrived at. This is in fact what the Receipt specifically contemplates. Para-phrased, it states that when an Agreement to Sell is entered into a sum of Rs.3,00,000/- would be paid. The next sentence states that the deal would be finalised within a period of two months. The Receipt itself, therefore, is determinative of the fact that no 'Agreement' had taken place. The observations of Arjun Kumar, J. in M/s. Nanak Builders case (AIR 1991 Delhi 315) (supra) that the document relied upon should not contain any mention that a formal Agreement to sell is to be executed, is most significant. There is no averment in the plaint that an oral Agreement actually took place after the execution of Receipt even though an allegation to this effect has been made in the notice dated 18.03.1992 issued by Shri L.S.Rana, Advocate on behalf of Plaintiff. I am compelled to conclude that the parties had only agreed to enter into an Agreement, and in these circumstances a contract was yet to come into being.
The position in similar in the case of second Receipt dated 03.10.1991. A total sale consideration is Rs.11,87,500/- and the amount paid in Rs.15,000/- to each of the three Defendants. This document further mentions that upon receipt of the sum equivalent to ten per cent of the total sale consideration, the executants would be ready to enter into an Agreement, As in the case of the first Receipt, a perusal of this document, itself would lead to the conclusion that only an inchoate understanding, not an agreement, had been arrived at. The consensus ad idem was that on receipt of the payment of the larger sum of approximately ten per cent an Agreement was to be executed. On such documentation, it would not be possible to hold that a prima facie case had been made out. As has been laid down in Mayawanti V. Kaushalya Devi, (1990) 3 SCC 1, burden of showing the stipulation and terms of the contract and that the minds were ad idem lies on the plaintiff. If the stipulations and terms are uncertain there can be no specific performance, for there is not contract at all. Where there are negotiations, the Court has to determine at what point, if at all, the parties have reached agreement". There can be no manner of doubt that in the present case the Agreement was yet to be reached.
These consideration, to my mind, are sufficient reasons for rejecting the application. Learned counsel for the plaintiff had emphasised that subsequent to the execution of the two Receipts, a total sum of Rs.4,45,960.62 had also been paid by the Plaintiff tol the Revenue Collector, Tis Hazari, being the amount received by the defendants in respect of the land agreed to be sold to the plaintiff. This is clearly a unilateral act of the plaintiff, since the learned counsel for the plaintiff has not been able to show any document which would indicate that this payment was made on the request or behest of any of the Defendants."
The cited decision would highlight the fact that a clause that further sum would be paid at the time of agreement, would itself suggest that the agreement was yet to be entered. Here my above discussion would without leaving any bit of cloud in the mind would show that what the plaintiff canvassed was only a negotiation to enter into an agreement to sell and not an oral agreement to sell.
14. Reverting back to the analysis of evidence as put forth by the plaintiff, I may proceed to refer to the serial order in which the evidence was sought to be placed before the Court. The deposition of P.W.2 viz., Prakash, the land broker by name, would narrate that on 12.3.1990 at 7.00 p.m. the first defendant and his wife, and first defendant's father-in-law enquired him as to what would be the market price for 17. cents of land, so to say the suit property, for which P.W.2 replied that the price fluctuates between Rs.8,000/- and Rs.10,000/- per cent. When P.W.2 volunteered that he would be able to bring prospective purchasers, the first defendant quipped as though he was going to sell the suit property to the plaintiff who was doing business in "Yarn Pattarai" in that suit property. According to the plaintiff's case, P.W.2 thereupon informed P.W.3 on 13.3.1990 as to what transpired between P.W.2 and the first defendant and his family members. Thereupon, P.W.3- Angusamy, informed it to the same to P.Ws.4 to 6. Thereupon P.Ws.4 to 6 contacted first defendant's brother Kulasekaran at his residence who informed them about the oral partition which took place between Kulasekaran and the first defendant and also about the factum of the western half of the entire property of 35 cents of land having been allotted to the share of the first defendant; Kulasekaran informed them to contact the first defendant and that thereupon only after ascertaining the addresses of P.Ws.4 to 6 contacted the first defendant at his residence, which transpired to be not far away from Kulasekaran's house and such fact of distance transpired while hearing the arguments in this case. It is not far away from Kulasekaran's house.
15. At this stage, breaking the narration it is just and necessary to apply common sense principle and preponderance of probabilities to find out as to whether as narrated by the witnesses, things might have happened or not. According to the version of P.W.2, the broker, on 12.3.1990 itself, the first defendant externalised and expressed his position and desire option and willingness to sell the suit property in favour of the plaintiff and in such a case there would be no rhyme or reason on the part of P.Ws.4 to 6 to contact Kulasekaran the brother of the first defendant for entering into alleged oral agreement to sell and that they could have very well approached the first defendant at his residence and that too in view of the fact P.W.2 was called by D.W.1 to his residence and informed P.W.2 about it. In such a case P.Ws.2 and 3 being land brokers, were aware of the residential house of the first defendant and P.Ws.4 to 6 on hearing such information they could have very well got the addresses of the first defendant himself and approached the first defendant, but the plaintiff would try to project the case as though P.Ws.4 to 6 approached Kulasekaran and from him they ascertained the address of the first defendant and approached the first defendant on the next day that is on 16.3.1990. In support of such a version, the plaintiff would, through the evidence of witnesses, proceed to project the case as though the rent was paid only to Kulasekaran and not to the first defendant even though both the first defendant and Kulasekaran signed rental receipts. This sort of version appears to be a far fetched one and fails to carry conviction with this Court. It is glaring, clear and inferable that initially the plaintiff wanted to find some support from Kulasekaran also, that Kulasekaran might help in deposing in the Court in support of the plaintiff, but it appears subsequently, it had fallen through.
15. The plaintiff would proceed to put forth her case as though something had happened between 16.3.1990 and 26.3.1990 in the mind of the first defendant as one broker by name Pandi - D.W.2, poisoned the mind of the first defendant and his wife as though the said oral agreement to sell, might fallen through and it would not fructify etc. It is therefore, just and necessary to refer to the deposition of D.W.2 at this juncture. D.W.2 being a land broker would speak against the case of the plaintiff, but he would narrate the fact in support of the first defendant's case that even on 5.3.1990 so to say, earlier to the date of agreement to sell, there was a written agreement between the first defendant and the second defendant relating to the suit property as evidenced by Ex.B.6.
16. The matter relating to Ex.B.6 would be discussed infra and at this stage of discussion, it is found that the plaintiff would proceed to project her case that on 26.3.1990, the first defendant and his wife turned down the request of P.W.4 to 6 for accepting the advance of Rs.25,000/- deducting Rs.101/-, the alleged token advance already paid for which they (defendants 1 and 2) refused, as though they were willing to sell the suit property in favour of the second defendant for a higher sale consideration of Rs.9,500/- per cent. Here again applying the common sense and preponderance probabilities, if the matter is viewed, it necessitates this Court to look askance to such an evidence. The difference between sale price allegedly agreed by the first defendant with P.Ws.4 to 6 and his proposals to sell the land to the second defendant was only Rs.300/- (Rupees three hundred) per cent and totally for 17. cents it comes around Rs.5,250/-. I do not think simply longing for a sum of Rs.5,250/- in excess of what he would be getting for the alleged oral agreement, the first defendant and his wife might have opted for allegedly rescinding the oral agreement with the plaintiff and entering into fresh contract with the second defendant. Before the Civil Court all arguments and all pleas should conform to the concept preponderance of probabilities. If he fails to satisfy, even basic norms relating to such probabilities and common sense, such plea should be rejected. As such the theory of the plaintiff that the first defendant merely longing for a sum of Rs.5,250/- in total created flutter and paved way for prolonged litigation, is turned to be a big pill to swallow. Learned Senior counsel for the first defendant would draw the attention of this Court the evidence relating to the advance amount. P.W.4 in his deposition has stated as follows:
"ehd; vd; kUkfdplk; ml;thd;rhf :U:.101/- bfhL vd;W brhd;ndd;. mth; clnd U:.101/- I vLj;J jhth ,lj;jpw;F ml;thd;rhf 1k; gpujpthjpaplk; bfhLj;jhh;. me;jg; gzj;ij tpj;ahnrfh; thq;fpf; bfhz;L me;j ,lj;ij vq;fSf;nf jUtjhf cWjp brhd;dhh;. gpd; ehd; U:.25>000/- 10 ehl;fs; fHpj;J ey;y ehs; ghh;j;J bfhz;L tUfpnwd; thq;fpf; bfhs;Sq;fs; vd;W 1k; gpujpthjpaplk; brhd;ndd;. mjw;F mth; rhp bfhz;L thUq;fs; vd;W brhd;dhh;. ,e;j U:.101/- f;F ehq;fs; ek;gpf;ifapd; nghpy; ve;j urPJk; thq;fpf; bfhs;stpy;iy.
P.W.4 would also depose as under:
ehq;fs; 3 ngh;> tpj;ahnrfh; tPl;oy; 3 ngh; nrh;e;J ngRk; nghJ ehd; :U:.25>000/- j;ij vLj;J tpj;ahnrfhplk; bfhLj;njd;. mth; gzj;ij thq;f kWj;J tpl;lhh;.
17. Learned Senior Counsel for the first defendant would argue that P.W.4 was not specific whether the advance amount of Rs.25,000/- would include sum of Rs.101/- which was allegedly paid on the plaintiff's side to the first defendant or excluding that sum. He was not particular about the sum of Rs.101/-, but for legal purpose, it would have much significance. As already discussed supra, there is no clarity relating to the evidence as to the advance.
18. P.W.4 in his deposition would simply say that the sum of Rs.101/- was advance and that fact has been referred to in the written argument submitted by the learned counsel for the plaintiff and hence it was not stated by P.W.4 as token advance at that stage. P.W.5 would also state that on the direction given by P.W.4, P.W.5 gave a sum of Rs.101/- as advance and that P.Ws.4 to 6 undertook to pay a sum of Rs.25,000/- on the date of written agreement during 'Valarpirai'. P.W.5 also deposed as under and certain excerpts from the evidence of P.W.5 would run thus:
||kWgoa[k; 26.3.90k; njjp vd; khkh gpr;ir fhiyapy; :U:.25>000/-j;ij vg;nghJ bfhz;L te;J bfhLf;f vd;W tpj;ahnrfhplk; nfl;L tur;brhd;dhh;.|| ||vd; khkh :U:.25000/-j;ij vLj;Jf; bfhz;L mtUld; ehDk;> vd; ez;gh; Rg;gpukzpaKk; nrh;e;J tpj;ahnrfh; tPl;ow;F brd;nwhk;. tPl;oy; tpj;ahnrfh; ,Ue;jhh;. mthplk; vd; khkh :U:.25000/-I vLj;Jf; bfhLj;jhh;.
||ehd; bfhLj;j U:.101/- jhd; bkhj;j ml;thd;];. :U.1 yl;rj;jp 57 Mapuj;jpy; 500 :U:gha; brhj;Jf;Fk; :U:.101/- ml;thd;]; Mf bfhLj;njd;. ml;thd;]; bfhLj;jt[ld; tsh;gpiwapy; xU ehs; te;J U:.25>000/- nkw;bfhz;L bfhLg;gjhf ngrpndhk;. tsh;gpiwapy; xU njjpapy; ey;;y ehs; ghh;j;J vGj;J K:ykhf vGjpf;bfhs;nthk; vd;W ngrpf; bfhs;stpy;iy. tsh;gpiwapy; xU ey;y ehspy; :U:.25>000/- :U:gha; ehq;fs; bfhz;L tUfpnwhk; vd;W ngrpf;bfhz;nlhk;. mJ ve;j ehs; vd;W 16.3.90k; njjpapy; Fwpj;Jf; bfhs;stpy;iy. tpj;ahnrfh; :U:.25>000/- bfhLf;Fk; nghJ vGj;J :Kykhf vGjpf; bfhs;nthk; vd;W brhd;dhh;. ehq;fs; njitapy;iy vd;W brhd;ndhk;. neuoahfg; gjpe;J bfhs;nthk; vd;Wk; brhy;yp tpl;nlhk;.|| P.W.6 in his deposition relating to the advance stated thus and certain excerpts are extracted for ready reference.
||gpwF gpr;ir Rg;gpukzpaj;jplk; xU :U:.101/- I ml;thd;]hf bfhLq;fs; vd;W brhd;dhh;. Clnd Rg;gpukzp :U:.101/- I 1k; gpujpthjp thjpaplk; bfhLf;ft[k; 1k; gpujpthjp thq;fpf; bfhz;lhh;. mjd; gpwF 10 ehl;fs; fHpj;J tsh;gpiwapy; ey;;y ehspy; :U:.25000/- bfhz;L te;J bfhLf;fpnwhk; vd;W gpr;ir brhy;yt[k;> mjw;F 1k; gpujpthjpa[k; xj;Jf; bfhz;lhh;. .....
mjd; gpwF 10 ehl;fs; fHpj;J 26.3.90k; njjpapy; fhiyapy; ehDk;> Rg;gpukzpaKk; cq;fSf;F :U:.25>000/-j;ij vg;nghJ bfhz;L te;J bfhLf;f vd;W 1k; gpujpthjpaplk; nfl;gjw;fhf nghndhk;. ....
26.3.90k; njjp khiyapy; gpr;ir> ehd; Rg;gpukzpad; vy;yhUk; nrh;e;J :U:.25>000/-
j;ij vLj;Jf;bfhz;L 1k; gpujpthjp tPl;ow;F brd;nwhk;. tpj;ahnrfh; tPl;oy; ,Ue;jhh;. mthplk; gpr;ir ehq;fs; U:.25>000/- bfhz;L te;jpUf;fpnwhk; thq;fpf; bfhs;Sq;fs; vd;W brhd;dhh;. 1k; gpujpthjp me;j gzj;ij ntz;lhk; vd;W brhy;yp kWj;J tpl;lhh;.|| It is therefore, understandable from the deposition of P.Ws.4 to 6 that they while deposing before the Court stated that as though the said sum of Rs.101/- was the advance, over and above that they approached the first defendant subsequently so as to pay the sum of Rs.25,000/-. Since oral agreement is pleaded by the plaintiff, the discussion relating to the sum of Rs.101/- and the sum of Rs.25,000/- had gained significance as to what was the effect of the sum of Rs.101/-. Even for argument sake, if it is held to have been paid by the P.W.5 to the first defendant on 16.3.1990, the plaint averments do not synchronise and tally with the deposition relating to the significance of such payment.
19. Learned Senior Counsel for the first defendant would advance the argument that the alleged oral agreement itself is vague for voidness; there is no certainty about the description of property and that there is no mentioning about the time of performance. In this connection he cited the decision of a Division Bench of this Court in 2005 (5) C.T.C.,17 (PANNERSELVAN,P. v. A.BAYLIS). An excerpt from the said decision would run thus:
" It is significant to note that in the aforesaid "agreement", which is not dated, there is no whisper that the defendant had agreed to sell 1 acre 30 cents of land nor there is anything to indicate that R.S.No.174/5 was to be sold. A fair reading of the "agreement" as a whole only indicates that the defendant had agreed to offer the lands worth Rs.1,00,000/- "at the rate" we have mutually agreed upon on individual integrity". The agreement is totally silent about the rate per cent of the land. Even the agreement no where states about the extent of land to be sold. A bare reading of the agreement leaves no room for doubt that the terms were "beautifully vague" to say the least. The agreement does not indicate that if the defendant is not able to purchase 4 acres 15 cents of land, he would sell 1 acre 30 cents of land in R.S.No.174/5. At this stage, it is necessary to note the contention raised by the learned Senior Counsel for the respondent/plaintiff to the effect that the document clearly indicates that the parties had "mutually agreed upon" the rate and since the defendant has not come out with any clear statement regarding the rate, the plaintiff's case ought to have been accepted.
We do not think such a contention can be countenanced, more particularly, in a suit for specific performance of a contract. Apart from the general principle of law that the plaintiff must succeed on the strength of his own case and not on the basis of the weakness in the case of the defendant, in a suit for specific performance of contract, the plaintiff is obviously required to prove that there is a definite contract which is capable of being specifically enforced."
The said decision states that an agreement to sell should be specific and the plaintiff has to succeed on his/her own case and should not depend upon the weakness of the defendant's case. The cited decision of the Division Bench of this Court, is also on the point that there was no specificity about the property in the transaction referred to in that case. So much so, here also the oral agreement as found detailed in the plaint, does not refer to the exact portion of the property which was agreed to be sold. However, learned counsel for the plaintiff would try to highlight that it was the western portion which was allotted to the first defendant out of the entire 35 cent of the lands. That out of that total 35 cents of land, 24 cents have been under the possession of the plaintiff. It is stated that even when D.W.1 (first defendant) allegedly at the time of the oral agreement to sell, enquired P.Ws.4 to 6 as to whether out of the extent of 24 cents in their possession, the 17 cents would serve their purpose, they replied as though that was sufficient. Very many such explanations could be given by way of expounding the situation but it should be convincing but here it is not so.
20. The core question arises as to whether at the time of oral agreement to sell the description of the property was also discussed and settled for which absolutely there is no evidence on record. The schedule of property is murky, inasmuch as the eastern boundary is shown as the other part of the first defendant's property. It does not show that eastern boundary was that of the first defendant's brother Kulasekaran. This also would add fuel to the fire as against the plaintiff. The contention of the first defendant that the agreement to sell is void for vagueness, is further nurtured, fortified and buttressed by the very vague confusing description as found in the schedule of the plaint. The description of the property should be free from obfuscating any normal man who reads the agreement to sell or who hears the oral agreement to sell. Here for the reasons set out above, there is no clarity about the property to be sold.
21. Relating to the time of performance of the contract, it is well known that time is not the essence of the contract relating to immovable property except in cases where the parties meticulously referred to it based on some reasons. In this connection, it is just and necessary to refer once again to paragraph No.9 of the plaint which would read as under:
"It was also further agreed that sale agreement to the terms agreed was to be reduced to in writing in an auspicious day after 26.3.1990 in Valarpirai on that day a sum of Rs.25,000/- less Rs.101/- was agreed to be paid to the 1st defendant as advance and from the date within a period of three months the sale was agreed to be registered."
The above sentence extracted would show that from the date of such written agreement three months should be computed for performance of contract. However, quite antithetical and contrary to the normal meaning that could be attributed to such sentence, the learned counsel for the plaintiff would try to argue that three months time should be calculated from 16.3.1990, the date on which the oral agreement was entered into and such interpretation is quite impossible from the above sentence. Throwing to the winds the English Grammar and more specifically the Rule relating to analysis of the sentence, the Court cannot simply endorse its view in support of the argument advanced on the side of the plaintiff. The said sentence comprises of various clauses. The main clause and noun clauses and it has to be read harmoniously. Any reference to a standard English grammar would support the view taken by this Court. No more elaboration is required in this regard. The deposition of the witnesses are cloudy and unclear, and quite as against the plaint averments would simply state as though the period of contract performance was three months from 16.3.1990. These are all factual evidence which would go to show that there was no concluded oral agreement. Placing reliance on Section 29 of the Contract Act, learned counsel for the plaintiff in his oral and written argument would proceed to stress upon the fact that the oral agreement cannot be termed or described as incapable of being made certain. Such an argument is neither here nor there in the light of the discussion supra. Learned counsel for the plaintiff relied on a decision of a Division Bench of the Patna High Court in A.I.R. 1957 Patna, 256 (SURESH NARAIN v. AKHAURI). The said decision would not enure to the benefit of the plaintiff for the reason that in this case the proposed purchaser's name as well as the description of the property in addition to time are not clear.
22. Learned counsel for the plaintiff would cite the decision in GOSTHO BEHARI v. SURS ESTATES LTD. (A.I.R.1960 CALCUTTA, 752) to highlight the point that non-disclosure of the identity of the purchaser would not be fatal to the case for specific performance. There, the factual matrix was entirely different as on behalf of undisclosed purchaser a solicitor negotiated and as such, the cited decision is having no relevance to the facts and circumstances of the case. The following decisions have been cited by learned counsel for the plaintiff to buttress the argument that legal document cannot be declared void for uncertainty on flimsy grounds. Such is not the position in view of the reasons discussed supra.
(1) KHIVRAJ CHORDIA v. E.S.EASTERN INC. (A.I.R.1975 Madras, 374) and RAJKISHOR v. BANABEHARI (A.I.R.(38) 1951 ORISSA, 291).
Specific Performance, contract and the valuation of the pleadings and adhering to the dicta of those decisions, this matter has been dealt with and no further more elaboration is required.
23. The decision of Kerala High Court in S.R.VARADARAJA REDDIAR v. FRANCIS XAVIER JOSEPH PERIARIA (A.I.R.1991 Kerala, 288) would not enure to the benefit of the plaintiff for the reason that the extent is not in dispute but about the property itself there is doubt. The entire extent of 35 cents of land was claimed to have been partitioned between the two brothers, the first defendant and Kulasekaran and recording that, there is no specification which portion was allotted to the first defendant in the plaint and as has been highlighted above, the schedule of property in the plaint and the description in the plaint are vague. Ex.B.1 which was only a copy of the partition deed dated 27.6.1991 would demonstrate that there was partition among five co-sharers and as per D.W.1, it is evident that the said 35 cents of land was allotted in the partition to both the first defendant and Kulasekaran and there is actually no partition deed showing how Kulasekaran and the first defendant divided it and in what manner. No doubt, the first defendant might even agree that there was oral partition even though initially in the reply he stated that there was no such partition, but in the alleged oral agreement there is no reference specifically to any portion.
24. The fact also remains that the plaintiff has been in possession of 24 cents of land and not exactly 17. cents of land. As such the cloudy situation relating to the description of the property also persists. The expectation on the plaintiff's side is that the Court could by invoking Section 29 of the Contract Act, should presume as though western half was the subject matter of the oral agreement to sell. Law does not enable the Court to presume when the parties themselves are not diligent enough in first of all putting agreement in writing and also diligent enough in discussing threadbare relating to the identity of the property. To the risk of repetition, I would like to state that as per the plaint schedule, it boomerangs as against the version of the plaintiff that 17. cents on the western side was agreed to. If that be so, the first defendant cannot have any property to the east of 17. cents as found specified therein. The maxim Vigilantibus non dormientibus jura subveniunt, is not only for invoking limitation period, but also the fact that the person who slept over the matter by way of right cannot insist the Court to infer certain things in his favour.
25. The decision of the Kerala High Court in KANDAMATH CINE ENTERPRISES (PVT) LTD.v. JOHN PHILIPOSE (A.I.R.1990 Kerala,198) is on the point that even a new plea that a contract is void for uncertainty, could be raised even at the appellate stage and in fact the decision cited by learned counsel for the plaintiff would go against his argument that in the written statement there were no specific plea about the uncertainty of contracts. However, the same decision would distinguish and differentiate between vagueness and difficulty in interpretation. But here my above discussion factually would highlight as to how due to various reasons stated supra, description of the property was uncertain. The expectation of the plaintiff that concession has to be given in understanding the description of the property, would not hold water, as the first defendant would object that no such concession could be given as the oral agreement itself was falsely dished out by the plaintiff so as to get the property by hook or by crook.
26. The decision of the Supreme Court in K.SRIRAMULU v. ASWATHANARAYANA (A.I.R.1968 S.C., 1028) is cited for the proposition that mere reference to a future contract would not water down the oral agreement. There is no quarrel over such a proposition. Here my discussions would elucidate that even as per the versions of the defendants' witnesses, no concluded contract could be inferred. The plaint averments vis-a-vis, the deposition of the plaintiff's witnesses would make the Court to hold that the plaintiff's case is not without a cloud of doubt.
27. The following are some more decisions cited by learned counsel for the plaintiff.
(1) BHUPAL v MAM CHAND (A.I.R.1973 ALLAHABAD, 543).
(2) KALYANPUR LIME WORKS v. STATE OF BIHAR (A.I.R.1954 S.C., 165) (3) SARASWATHI AMMAL,N. v. JAYARAM RAO (1998 (II) CTC, 613). (4) HARICHAND v. GOVIND (XLIV M.L.J.,608 = A.I.R.1923 P.C.) (5) MITHU KHAN v. PIPARIYAWALI (A.I.R.1986 M.P., 39) (6) VARGHESE DANIEL v. BALAKRISHANAN & ANOTHER (1999 (1) L.W., 156) (7) RADHA KISHAN KAUL v. SHANKAR DAS (AIR.1927 LAHORE,252) (8) RAJAMMAL v. GOPALASWAMI (AIR (38) 1951 Madras, 767) (9) SOHBAT DEI v. DEVI PHAL (A.I.R.1971 S.C., 2192).
(10) KEDAR LAL v. HARI LAL (A.I.R.(39) 1952 S.C., 47) (11) BADAT & CO. v. EAST INDIA TRADING CO. (A.I.R.1964 S.C., 538). (12) GURUBUX SINGH V. BHOORALAL (A.I.R.1964 S.C., 1810). (13) M/S.GOBINDRAM v. M/S.SHAMJI K.& CO. (AIR 1961 S.C.,1285). (14) BALAKRISHNA CHETTIAR v. THE SALEM DIOCES SOCIETY (2002 (1) M.L.J.,638).
(15) DURGA PRASAD v. DEEP CHAND (A.I.R.1954 S.C., 75).
(16) RAJESWARI v. DHANAMMAL (1994 (1) M.L.J., 401)
28. A perusal of those decisions would show that all are on the same line and those decisions are relating to specific performance and there are no new points subject to those dicta only I analysed the evidence.
29. The decision of the Supreme Court in BISMILLAH v. JANESHWAR PRASAD (A.I.R. 1990 S.C., 540) is on the point that ill-drafting should not be treated as fatal to a case.
30. My discussion above would show that it is not ill drafting or loosely worded plaint, looms large in the mind of this Court to hold against the theory of oral agreement to sell, but factual position as set out by the plaintiff both in the plaint as well as through her witnesses including herself failed to satisfy the requirement of law.
31. The decision in MADAN GOPAL v. MAMRAJ (A.I.R.1976 S.C., 461) cited by learned counsel for the plaintiff is on the same point.
32. The decision in SARJU PERSHAD v. JWALESHWARI (A.I.R.(38) 1951 S.C.,
120) would highlight that the trial Court's conclusion relating to reliability of witnesses and their demeanour noted by the Court should not be reversed by the Appellate Court, but absolutely, it has no relevance in the facts and circumstances of the case as my above discussion proceeded on the line taking it for granted for argument sake their evidence as such for discussion of evidence.
33. The decision of the Supreme Court in MADHUSUDAN DAS v. NARAYANI BAI (A.I.R.1983 S.C., 114) is on the point that the relative witnesses' evidence cannot be rejected and I would say that such a proposition is as old as mountain and no one can have quarrel over it. But this decision has been cited out of context here, for the reason that the evidence of those witnesses is fraught with inconsistencies and in fact it militated against the version in the plaint and for that reason I have held that the theory of oral agreement as put forth, is not believable. It was not supported by legally sustainable evidence.
34. Learned Senior Counsel for the first defendant precisely and that too correctly argued by giving a death-knell to all the allegations and accusations made against the first defendant relating to he having allegedly fabricated Ex.B.6, by advancing the argument to the effect that even assuming that the first defendant had not proved the valid agreement to sell between the first defendant and the second defendant on 5.3.1990 so to say anterior to the alleged oral agreement to sell that would enure to the benefit of the plaintiff. The plaintiff was duty bound to prove the factum of alleged oral agreement which he miserably failed to prove. Accepting such an argument, the case could be disposed of, however, for the purpose of comprehensively dealing with all the pleas. I proceed further to discuss the evidence. Even though the adage is to the effect that the plaintiff has to stand on his own legs or fall and he or she cannot pick holes in the case of the defendants and try to achieve success in the litigative battle, yet I proceed to discuss the evidence relating to the plea of the defendants.
35. Ex.B.6 no doubt, is an unregistered agreement to sell written on one embossed stamp paper by having one additional green sheet. Learned Counsel for the plaintiff would draw the attention of the Court that even though embossed stamp paper is bearing No.5390 with the name Murugan, yet it does not refer to Murugan, the second defendant herein. He would meticulously highlight that the second defendant is K.Murugan, but in Ex.B.6 it is mentioned only as Murugan who purchased all the stamp papers. He would also delineate that this sort of embossed stamp papers containing various earlier dates with the popular names such as Murugan could be purchased and any document can be fabricated at one's will and pleasure. But such an argument cannot be countenanced. Ex.A.30 is nothing but embossed stamp papers bearing the date as 10.12.1988 and various other dates in the name of Murugan. From that no adverse inference can be drawn and it is quite obvious. There is no hard and fast rule that Ex.A.30 stamp papers cannot be genuine stamp papers and there is nothing to show that those Ex.A.30 stamp papers were not procured for the purpose of this case also. When such sort of arguments are quite available and legally sustainable,the plea of the plaintiff cannot be accepted.
36. Learned counsel for the plaintiff also would argue that endorsement found on the overleaf the first sheet, as though a sum of Rs.40,000/- was paid by way of cheque on 9.3.1990 was nothing but a false entry so as to buttress and fortify the case of defendants 1 and 2. No doubt the relevant Exhibits, viz., Ex.A.31, cheque dated 9.3.1990 refers to Ex.B.6 for Rs.40,000/-. Ex.A.32 is the bank account relating to Kandasamy Nadar & Sons of which the second defendant is a partner. Kandasamy Nadar is the father and the second defendant is his son. It is the case of the defendants that the said plot was sought to be purchased by the second defendant from out of the funds of Kandasamy Nadar & Sons. Learned counsel for the plaintiff has successfully highlighted Ex.A.31, dated 9.3.1990 was not at all presented to the drawee bank so to say, State Bank of Trivancore till 17.4.1990 but earlier cheques were encashed. The plaintiff has sought to tarnish the case of the defendants by pointing out that defendants 1 and 2 colluded together so as to defeat the interest of the plaintiff's theory of oral agreement. Ex.B.6 was fabricated and that Ex.A.31 cheque was ante dated. Simply because a cheque was presented belatedly for encashment no presumption could be made. Based on such delay in presentation, there cannot be any clear finding as against the defendants that they fabricated those documents. However, those documents by themselves would not come to the rescue as a valid defence to show that there was a valid agreement to sell, anterior to the alleged oral agreement to sell.
37. Learned counsel for the plaintiff by meticulously adverted to the Account Books Exs.B.15, 16, 17, 18. Ex.B.15 is the entry dated 5.3.1990 showing as though a sum of Rs.10,000/- was paid as advance under Ex.B.6. Such Ex.B.15 is found in the Account Book of Kandasamy Nadar & Co.. Learned counsel for the plaintiff would meticulously draw the attention of the Court that set of pages were replaced and the stitching also differs. Those pages were removed from one other Account Book and entries were re-written suitably by way of incorporating Ex.B.15 therein and stitched. He also drew the attention of the Court to the nature of the string used and also the pin holes, showing that they were taken from one other book. A close scrutiny of the Account Book would certainly make this Court not to brush aside such a sincere endeavour made by the plaintiff's counsel in probing into the matter. However, I would say that such evidence can be excluded from the purview of consideration even though this Court cannot give a categorical finding that the defendants indulged in fabricating false evidence etc.
38. Learned counsel for the plaintiff cited the decision of the Hon'ble Apex Court in METTUR BEARDSELL LIMITD v. SALEM TEXTILES LIMITED (2001 (2) C.T.C. 736, to the effect that for the purpose of placing reliance on entries in the Account Book, the person who made the entries should be examined and that mere production of Account Book is not sufficient to establish the transaction entered in the Account Book. However, this decision has to be read in conjunction with the well settled proposition as contained in catena of decisions that entries made in the Account Books in the regular course of business are admissible in evidence. Be that as it may, here in this case in view of various defects meticulously and enthusiastically highlighted by learned counsel for the plaintiff, the evidence on the side of the defendants are not relied on for deciding the case based on doubts emerged enshrouding such documents.
39. To the risk of repetition I would say that argument of learned counsel for the plaintiff would be sufficient to exclude such evidence from the purview of consideration in deciding the lis at hand, as held supra.
40. The plaintiff also relied on P.W.7, an official of the Electricity Board wherein the second defendant was working to prove that even though the second defendant had time enough to present the cheque in the Bank concerned, which was very near to his house, he had chosen to give false excuses as though he was not having time etc. to present it.
41. The plaintiff also had gone to the extent of summoning the Attendance Register Ex.A.33 by marking the entry Ex.A.34 of the first defendant dated 9.3.1990, to show that the first defendant was on leave on 9.3.1990. These are all efforts made by the plaintiff to prove how the defendants went to the extent to taking pleas which are knowingly false so as to thwart the specific performance of agreement to sell.
42. In a case even if the defendant for the purpose of safeguarding himself might have gone to the extent of uttering out certain lame excuses that itself will not enure to the benefit of the plaintiff and to that extent even the decision cited on the plaintiff's side are clear.
43. The decision of the Hon'ble Supreme Court in BORAMMA v. KRISHNA GOWDA (2000 (3) M.L.J., 199 (S.C.), would laid down the law to the effect that answer to questions put during cross-examination should not be taken in isolation and adverse inference should not be drawn as against the evidence given by the witnesses. No doubt it is the sound principle of law and in this case, I do not think that learned Senior counsel for the first defendant read out the evidence in isolation. During arguments he highlighted by reading out portions of the deposition of P.Ws.4 to 6 as already referred to above. Nothing has been read in isolation or construed in isolation and those are evident as discussed supra.
44. Learned Senior Counsel for the defendants would convincingly highlight that there was no probability of any oral agreement arising between the first defendant and the plaintiff in view of the previous litigation between the parties. Indubitably and apparently the father of the plaintiff was proceeded against for being evicted from the suit property by the first defendant's family members and that thereby there was bad blood started running in their relationship of the landlord and the occupier and that there was no possibility of the oral agreement to sell emerging between the plaintiff and the first defendant. The plaintiff on one hand would call herself as a tenant whereas the first defendant describe her as a licensee. The plaintiff would express and expatiate, portray and project that huge amount was spent by her father on her side as occupier of the suit property for raising structures. Various documents were marked on the plaintiff's side to show that superstructure was raised by her by spending huge amount which are not germane for adjudicating this case. Ex.A.5 and A.6 are the certified copies of judgment and decree passed by the trial Court and the appellate Court in the previous litigation in O.S.No.311 of 1964 and A.S.No.175 of 1965 which would show that between the plaintiff's father and the first defendant, there was litigation for evicting the plaintiff's father from the suit property.
45. Learned counsel for the plaintiff would state that all those litigations ended long ago. Even then, the ill-will, spite, malice, antipathy, abomination, aversion, detest, dislike, odium, that imbued in the hearts of both sides due to previous litigation, cannot be assumed or presumed, to have got evaporated in the air and any presumption or assumption to the contrary would be against the realities of life. The litigation psychosis is an important concept by itself which beggars description but suffice to say that deep rooted abrasion caused in the hearts of both cannot be taken as vanished and a cumulative reading of the evidence and the way in which the parties have been litigating would prove it. In such a case, the oral agreement theory in view of this angle also fails to carry conviction with this Court.
46. The trial Court in its brief judgment simply took it for granted, the case of the plaintiff for gospel truth and without going deep into the root of the matter, decreed the suit which deserves to be set aside and the Original Suit is liable to be dismissed.
47. In the result, in view of the ratiocination adhered to for deciding the aforesaid points, the appeal is allowed by setting aside the judgment and decree of the trial Court and ultimately, the suit in O.S.No.881 of 1990 on the file of the Principal Subordinate Judge, Madurai, is dismissed. However, in the circumstances of the case, the parties concerned shall bear their respective costs through out.
Copy to :
The Principal Subordinate Judge, Madurai.