Madras High Court
E.Raja @ Loganathan vs V.Boopalan on 4 April, 2022
Author: S.S.Sundar
Bench: S.S.Sundar
S.A.No.465 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.04.2022
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
S.A. No.465 of 2017
and
C.M.P. No.11670 of 2017
1.E.Raja @ Loganathan
2.Mohan Kumar ... Appellants
Vs.
1.V.Boopalan
2.Ramu
3.Minor Dhanalakshmi
(Respondents 2 & 3 are given
up as unnecessary parties) ... Respondents
Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code,
1908, against the judgment and the decree dated 28.10.2014 in A.S.No.29 of
2014 on the file of the I Additional District Court, Salem, partly reversing the
judgment and the decree dated 22.02.2013 in O.S.No.82 of 2009 before the I
Additional Sub Court, Salem.
For Appellant : Mr.T.Sezhian
For Respondent : Mr.J.Franklin for R1
https://www.mhc.tn.gov.in/judis
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S.A.No.465 of 2017
JUDGMENT
The defendants 1 and 3 in the suit in O.S.No.82 of 2009 on the file of the I Additional Sub-Court, Salem are the appellants in the above Second Appeal. The first respondent in this appeal filed the suit in O.S. No.82 of 2009 for direction directing the defendants in this suit to execute the sale deed in favour of the plaintiff and to surrender possession and for consequential permanent injunction.
2. It is the case of the first respondent / plaintiff in the plaint that the plaintiff and the defendants have entered into a sale agreement on 13.02.2008 agreeing to sell their suit property in favour of plaintiff for a sum of Rs.2,50,000/- and the defendants received a sum of Rs.50,000/- as advance from the first respondent. It is also stated that the defendants have received an additional sum of Rs.1,80,000/- as advance from the plaintiff towards sale price. The plaintiff has to pay a sum of Rs.70,000/- towards balance of sale price. It is contended that the defendants did not come forward and receive the balance amount from the plaintiff for completion of sale transaction. After issuance of notice to the defendants, the first respondent filed the suit.
https://www.mhc.tn.gov.in/judis 2/10 S.A.No.465 of 2017
3. The suit was contested by the first defendant on many grounds stating that the second defendant in the suit had not completed 18 years of age and that he is not competent to contract. It is the case of the first appellant that since he is addicted to alcohol, he borrowed money from the plaintiff for drinking purpose. It is contended that the first defendant, on every occasion, borrowed money from the plaintiff, but did not agree to execute the sale agreement in respect of the suit property. Therefore, the suit agreement was described by the first appellant as a fraudulent document created by the plaintiff for the purpose of this suit. The first appellant also contended that the second defendant was the minor on the date of agreement and that defendants 2 and 3 did not sign any agreement. It is stated that the defendants did not remember any notice being sent by plaintiff before suit.
4. The suit was also contested by defendants 2 and 3 by filing separate written statement. It is contended by the defendants 2 and 3 that they have not entered into any agreement of sale and they have not signed in the agreement of sale as alleged. It is also stated by them that the alleged agreement signed by the first defendant is not binding on them and that there is no cause of action for the suit as against defendants 2 and 3. https://www.mhc.tn.gov.in/judis 3/10 S.A.No.465 of 2017
5. The trial Court framed necessary issues. On behalf of the plaintiff/first respondent, three witnesses were examined as P.W.1 to P.W.3 and Exs.A1 to A6 were marked as exhibits. On behalf of the defendants 1 & 3 were examined as D.W.1 to D.W.3 and Exs.B1 to B4 were marked as exhibits.
6. The trial Court found that the suit agreement was signed by the first defendant/first appellant and that the suit agreement is binding on the defendants 2 to 4 who are the children of first defendant. Considering the evidence of D.W.1, during the cross examination admitting the signature and thumb impression of D.W.1, the trial Court held that the agreement was duly executed by the first defendant and that the sale agreement is binding on all the defendants and decreed the suit.
7. Aggrieved by the findings of the trial Court, the defendants have preferred an appeal in A.S. No.29 of 2014. The lower Appellate Court held that the second defendant is a minor and therefore the sale agreement is void and not enforceable against second defendant. As regards the fourth defendant, the lower Appellate Court found that the fourth appellant is a minor, who was represented by his father, the first appellant in the suit https://www.mhc.tn.gov.in/judis 4/10 S.A.No.465 of 2017 agreement. The lower Appellate Court held that the father is not the natural guardian to represent the minor fourth defendant as she was already married and her husband should represent her as natural guardian. Therefore, the suit as against the defendants 2 and 4 was dismissed. Since the agreement is valid only in respect of one half share of defendants 1 and 3, the lower Appellate Court held that the respondents are not entitled to the decree for specific performance in respect of the remaining ½ share of the suit property. A further direction was also issued by the lower Appellate Court directing the first appellant to return the excess money. The plaintiff was also directed to pay a sum of Rs.55,000/- to the third defendant as balance of sale consideration towards his ¼ share.
8. Aggrieved by the judgment and decree of the lower Appellate Court in A.S. No.29 of 2014, the defendants 1 and 3 preferred the above appeal by raising the following substantial questions of law in the memorandum of grounds of appeal:
“ (i) Whether in law the Courts below were right in holding that the suit agreement was true when the signatures of the first appellant had been obtained for a different transaction and when the others had not signed it?
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(ii) Whether in law the Courts below were not wrong in failing to see that fraud vitiates the entire transaction and that there could be no equitable degree in favour of a person who comes to Court with a false case?
(iii) Whether in law the Lower Appellate Court was right in directing the first appellant to return the alleged excess amount when the first respondent had not filed an application which is mandatory under Sec.22(2) of the Specific Relief Act?”
9. From the written statement filed by the first defendant, it is seen that the first defendant has not denied his signature or thumb impression in the suit agreement which was marked as Ex.A1. It is seen that the first defendant/first appellant has signed the sale agreement for himself and as a guardian of the fourth defendant. It is stated that a sum of Rs.50,000/- was paid as advance by the plaintiff to the defendants. Ex.A1 sale agreement also reveals that the first appellant has obtained several amounts as further advances from the plaintiff and put his thumb impression and signature, in every endorsements in the agreement. From the admission of D.W.1, the lower Court held that the suit agreement executed by the first appellant is proved. Since the Lower Appellate Court found that the second defendant was a minor at that time of sale agreement, held that the https://www.mhc.tn.gov.in/judis 6/10 S.A.No.465 of 2017 agreement of sale executed by second defendant is invalid and not enforceable against him. Similarly the lower Appellate Court found that the suit for specific performance cannot be maintained against another minor namely, fourth defendant who was not represented by her husband as natural guardian.
10. When the judgment of the lower Appellate Court is on the basis of admitted facts, the learned counsel appearing for the appellants submitted that the findings of the Courts below regarding the truth and validity of agreement cannot be sustained in view of specific pleadings of the first defendant denying the nature of transaction. This Court is unable to find any legal force in the submission of the learned counsel for the appellants. The signature of the first defendant in the sale agreement is not in dispute. Similarly the endorsements found were made by the first defendant. The appellants have not let in sufficient evidence to prove that the sale agreement was never intended to be acted upon. It is the specific case that the first defendant signed the document under the influence of Alcohol. However, the signature of the first defendant found in the document as Ex.A1 does not appear to be a signature of a drunkard person who is unable to understand anything. The signature and thumb impression of the first defendant is found https://www.mhc.tn.gov.in/judis 7/10 S.A.No.465 of 2017 in every page of the agreement. The first defendant signed the document without any shivering or break. The signatures of first defendant exactly similar. The contention of the first defendant cannot be accepted without further evidence to corroborate the evidence of D.W.1.
11. The plaintiff has examined three witnesses and all of them were cross examined. The learned counsel for the appellants is unable to point out any specific or material contradiction with regard to the nature of transaction. The Courts below specifically held that the agreement was signed by the first defendant and it is binding on the appellants. This Court is unable to see any reason to interfere with the findings of facts by the lower appellate Court. The learned counsel attempts to rely upon the evidence of P.W.1 by stating that the plaintiff's witnesses have admitted that other defendants did not sign. It is seen that P.W.2 has stated that the endorsement were not signed by the defendants. It is not the case of the plaintiff that the endorsements were singed and the receipt of further amounts were acknowledged by all the defendants. The case of first respondent is also that the first defendant alone had made endorsements while receiving further amounts. Merely because the first defendant has pleaded that the signatures were made when he was under the influence of alcohol, it cannot be said that https://www.mhc.tn.gov.in/judis 8/10 S.A.No.465 of 2017 he has signed the agreement without knowing the contents. No special circumstances which prompted the first appellant to sign the agreement along with his two sons is pleaded. Hence, the lower appellate Court, came to the conclusion that the suit agreement was executed by the defendants and that the money was paid to the appellants towards part of sale consideration. The decree is granted only in respect of half share in the suit property. Therefore, the relief has been moulded by directing the defendant to return the amount in excess of his share. There is no illegality in the decision.
12. This Court finds that the first appellant knew about the entire transaction and hence, finds no valid reason to deny specific relief to the first respondent as against appellants. This Court is not inclined to entertain this appeal as there is no factual basis for any of the substantial question of law framed by the appellants in this appeal. Accordingly this Second Appeal is dismissed with costs. Consequently, connected Miscellaneous Petition is closed.
04.04.2022 Index: Yes / No Speaking order / Non-speaking order dna https://www.mhc.tn.gov.in/judis 9/10 S.A.No.465 of 2017 S.S.SUNDAR, J., dna To:
1. The I Additional District Court, Salem.
2. The I Additional Sub Court, Salem.S.A.No.465 of 2017
and C.M.P. No.11670 of 2017 04.04.2022 https://www.mhc.tn.gov.in/judis 10/10 S.A.No.465 of 2017 https://www.mhc.tn.gov.in/judis 11/10 S.A.No.465 of 2017 https://www.mhc.tn.gov.in/judis 12/10