Madras High Court
V.Vaiyapuri vs M.Pavayi on 21 January, 2011
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.01.2011 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA S.A.No.204 of 2008 and M.P.No.1 of 2008 V.Vaiyapuri ... Appellant vs. 1.M.Pavayi 2.M.Ramesh ... Respondents This second appeal is filed against the judgement and decree dated 30.7.2007 passed by the Principal Subordinate Court, Salem, in A.S.No.25 of 2007 reversing the judgment and decree dated 22.7.2005 passed by the II Additional District Munsif, Salem, in O.S.No.1240 of 2004. For Appellant : Mrs.Hemasampath,Sr.counsel for Mrs.R.Meenal For Respondents : Mr.P.Jagadeesan JUDGMENT
This second appeal is filed by the plaintiff, inveighing the judgement and decree dated 30.7.2007 passed by the Principal Subordinate Court, Salem, in A.S.No.25 of 2007 reversing the judgment and decree dated 22.7.2005 passed by the II Additional District Munsif, Salem, in O.S.No.1240 of 2004, which was filed for specific performance of an agreement to sell.
2. The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.
3. The epitome and the long and short of the relevant facts absolutely necessary and germane for the disposal of this second appeal would run thus:
The plaintiff, who is the appellant herein, filed the suit seeking the following relief:
"a) to pass a judgement and decree against the defendants directing the suit contract dated 18.2.99 touching the suit property set out in the schedule hereto be specifically performed by the defendants within the time to be fixed by this Honourable Court and in default to order execution of such sale deed by process of Court and to put him in possession the suit property set out in the plaint schedule hereto.
2) In the alternative directing the defendants to refund the advance amount of Rs.50,000/- paid to the defendants with interest at 24% p.a. From the date of suit i.e. From 17.5.2000 till date of realisation." (extracted as such)
(b) The defendants resisted the suit by filing written statement.
(c) Whereupon the trial Court framed the issues. The plaintiff on his side examined himself as P.W.1 along with P.W.2 and P.W.3 and marked Ex.A1 to A6. On the defendants' side, the first defendant examined herself as D.W.1 along with the second defendant as D.W.2 and marked Exs.B1 to B3.
(d) The trial Court decreed the suit for specific performance, as against which, the appeal was filed. Whereupon the appellate Court reversed the findings of the trial Court and dismissed the original suit filed by the plaintiff.
4. Being aggrieved by and dissatisfied with the judgement and decree of the appellate Court, this second appeal has been filed on various grounds inter alia thus:
(i) The lower appellate Court failed to consider that Ex.A1 was a Registered Agreement to Sell, intended to be acted upon, and the contention of the defendants that D1's husband, while working as collecting agent for the plaintiff caused the said Ex.A1 to be executed by the defendants as security was not proved by the defendants.
(ii) The 'onus of proof' was on the defendants, but they failed to discharge the same. However, the first appellate Court erroneously held as though the 'onus of proof' was on the plaintiff to prove the genuineness of Ex.A1 and the burden of proof was not on the defendants.
(iii) Once the defendants accepted the execution of the registered agreement to sell-Ex.A1, the onus was on the defendants to prove their plea that the said document emerged only as a security and not intended to be acted upon.
(iv) Without considering these salient features, the lower appellate Court simply upset the reasoned judgement of the trial Court.
5. The following substantial questions of law are found suggested in the memorandum of grounds of second appeal.
"(i) Whether in law the lower appellate Court was right in dismissing the suit when the execution of Ex.A1 registered sale agreement was clearly admitted by the respondents both in their written statement and in the oral evidence?
(ii) Whether in law the lower appellate Court was right in overlooking that the burden of proving that Ex.A1 was executed for some other purpose, when the respondents had not discharged the burden?
(iii) Whether in law the lower appellate Court was not wrong in omitting to see that the respondents had come with a totally false case and that their defence should be rejected?" (extracted as such)
6. Heard both sides.
7. Taking into consideration the arguments on both sides and the materials available on record and also on perusal of the judgements of the first appellate Court as well as the trial Court, I am of the considered view that the following substantial questions of law would arise.
"(i) Whether the first appellate Court was right in applying the concept 'burden of proof', in deciding the appeal?
(ii) Whether the first appellate Court, in accordance with the provisions of law analysed the findings of the trial Court and rendered its judgement, when Ex.A1 is a registered agreement to sell, which was admitted by the defendants and that the defendants only pleaded that Ex.A1 document emerged only as a security?
(iii) Whether the fact of D2 being a minor on the date of emergence of Ex.A1 would render Ex.A1 void when in fact the minor was not one of the co-owners or co-sharers of the suit property?"
8. Heard both further on the above substantial questions of law.
9. The gist and kernal of the arguments of the learned Senior counsel for the appellant/plaintiff would run thus:
(a) The onus of proof is on the defendants who pleaded that Ex.A1-the registered agreement to sell emerged only as a security, whereas, the first appellate Court held as though the burden is on the plaintiff to prove that Ex.A1 was intended to be acted upon and not one emerged as security.
(b) Section 92 of the Indian Evidence Act was not at all taken into consideration by the first appellate Court.
(c) The trial Court extracted the various portions of the evidence and rendered its judgement, whereas, the first appellate Court furnished no reason for disagreeing or upseting the finding of facts rendered by the trial Court.
Accordingly, the learned Senior counsel for the appellant/plaintiff prays for setting aside the judgement and decree of the first appellate Court and for restoring the judgement and decree of the trial Court.
10. In an attempt to torpedo and pulverise the arguments as put forth on the side of the appellant/plaintiff, the learned counsel for the respondents/defendants would advance his arguments, the gist and kernal of them would run thus:
(1) D2 was proved to be a minor as on the date of Ex.A1 and the trial Court also rendered its finding to that effect, however, it failed to hold that Ex.A1 was void and the appellate Court correctly applied the concept 'onus of proof' and expected the plaintiff to prove his case, and on seeing that the plaintiff did not examine any attesting witness to prove Ex.A1, the first appellate Court correctly reversed the findings of the trial Court, warranting no interference in second appeal.
(2) The alleged reply notice-Ex.A5 dated 15.5.2000 was not given by the defendants even then the trial Court held as though reply notice was given by the defendants.
(3) Shortly three days after the demise of D1's husband, the plaintiff's notice dated 25.4.1999 was given and at that time, the defendants were not in a position to reply at all.
(4) D1's husband was acting as collecting agent of the plaintiff, in addition to his job as a small weaver and hence, the plaintiff managed to obtain Ex.A1 while he was in a dominating position and as such, the first appellate Court considering the pros and cons of the matter and the plight of the defendants reversed the findings of the trial Court, correctly.
(5) As per Ex.A1 it is found stated that 'the remaining part of the sale consideration was only Rs.10,000/- out of the total sale consideration of Rs.60,000/-', even then two years time is found specified in Ex.A1 for completing the sale. If really it was an agreement to sell, such a huge period of two years might not have been contemplated in the agreement to sell and that itself is indicative of the fact that the said document was not intended to be an agreement to sell.
(6) The deposition of D.W.1 was misread by the trial Court and such error was rectified by the first appellate Court, warranting no interference in second appeal.
Accordingly, the learned counsel for the defendants would pray for dismissing the second appeal.
11. The learned counsel for the defendants also would submit that as per Section 20 of the Specific Relief Act, the Court is not bound to order for enforcing an agreement to sell even if it is found to be legally permissible and this is a fit case wherein Ex.A1 need not be specifically enforced in view of the reasons found set out on the side of the defendants.
12. Substantial Questions of law (i), (ii) and (iii) are taken together for discussion as they are interwoven and interlinked, interconnected and entwined with one another.
13. At the outset itself I would like to refer to the decisions cited on both sides.
(a) On the side of the appellant/plaintiff the following decisions are found cited.
(i) (2009)5 SUPREME COURT CASES 713 VIMAL CHAND GHEVARCHAND JAIN AND OTHERS VS. RAMAKANT EKNATH JADOO, certain excerpts from it would run thus:
"36. if the appellants were able to prove that the deed of sale was duly executed and it was neither a sham transaction nor represented a transaction of different character, a suit for recovery of possession was maintainable. A heavy onus lay on the respondent to show that the apparent state of affairs was not the real state of affairs. It was for the defendant in a case of this nature to prove his defence. The first appellate Court, therefore, in our opinion, misdirected itself in passing the impugned judgement insofar as it failed to take into consideration the relevant facts and based its decision on wholly irrelevant consideration.
37. A heavy burden of proof lay upon the defendnt to show that the transaction was a sham one. It was not a case where the parties did not intend to enter into any transaction at all. Admittedly, a transaction had taken place. Only the nature of transaction was in issue. A distinction must be borne in mind in regard to the nominal nature of a transaction which is no transaction in the eye of the law at all and the nature and character of a transaction as reflected in a deed of conveyance. The construction of the deed clearly shows that it was a deed of sale. The stipulation with regard to payment of compensation in the event the appellants are dispossessed was by way of an indemnity and did not affect the real nature of transaction. In any event, the said stipulation could not have been read in isolation. The judgement of the first appellate Court was, therefore, perverse. The High Court, thus, failed to consider the real dispute between the parties."
(ii) (2009) 7 MLJ 640 S.ANDAL AND ANOTHER VS. K.CHINNASAMY, certain excerpts from it would run thus:
"22. Learned counsel for the respondent argued that the amount of Rs.4 lakhs has been borrowed for the purpose of discharging the loan to the Bank as well as to others from whom the respondent borrowed money for the purpose of marriage of three daughters. Of course, a part of the amount of Rs.1,60,000/- has been established to be paid to the Bank by evidence. But in respect of the balance amount, there is no acceptable evidence to support the contention. The respondent also has not established before the trial Court as well as before us when the daughters were got married and what was the amount borrowed and what was the amount unpaid during the relevant period of time when Exhibit P-1 was executed. Even assuming that the existence of the loan is true, the loan would have been paid back out of the sale consideration. We are of the view that there is no material worth consideration made available to accept the contention of the respondent that the Exhibit A-1 agreement was entered into with an intention not to act upon it and only for securing the loan borrowed."
(b) On the side of the respondents/defendants, the following judgements are found cited.
(i) AIR 1987 SUPREME COURT 2328 PARAKUNNAN VEETILL JOSEPH'S SON MATHEW VS. NEDUMBARA KURUVILA'S SON AND OTHERS, an excerpt from it would run thus:
"14. Section 20 of the Specific Relief Act, 1903 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The Court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The Court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff. The High Court has failed to consider the motive with which Varghese instituted the suit. It was instituted because Kuruvila could not get the estate and Mathew was not prepared to part with it. The sheet anchor of the suit by Varghese is the agreement for sale Ex.A1. Since Chettiar had waived his rights thereunder, Varghese as an assignee could not get a better right to enforce that agreement. He is, therefore, not entitled to a decree for specific performance."
Absolutely there is no quarrel over such a proposition. But, here the facts are to the effect that there is no attitude of oppression on the part of the plaintiff as against the defendants. As the facts and circumstances were clear to the effect that the plaintiff approached the Court with clear facts, whereas, the defendants resisted the suit setting out contrary and contradictory pleas.
(ii) 2001(1) CTC 601 GOVIND DAS PURUSHOTHAM DAS AND ANOTHER VS. SHAW WALLACE & CO.LTD., MADRAS AND 4 OTHERS (High Court of Madras). This decision is not applicable to the facts and circumstances of this case, as the following excerpts from the said cited decision would show that the facts are entirely different.
"3. The first plaintiff in the suit has been the tenant of this property for several decades. The last lease agreement being of the year 1978 for a period of five years. It was claimed by the first plaintiff that the first defendant, who is the father of the second defendant and to whose share these property had been allotted at a partition in the family had agreed to sell the property to the first plaintiff or it's nominee by a letter dated 18.8.1979 marked as Ex.P.9 in the suit. It is also it's case thath it has nominated the other plaintiffs 2 to 5 to purchase the property, and that they were all ready and willing at all times to pay the purchase price and obtain the sale deed. The consideration for which the properties alleged to have been agreed to be sold was Rs.10,00,001. No amount was paid to the owner when this alleged agreement came into existence subsequently. Though the claim made by the plaintiffs that they were entitled to enforce the agreement, and that defendants were bound to execute the sale deed was repudiated by the defendants through their replies sent by them to such a claim, their reply having been sent on 3rd May, 1980, the suit came to be instituted only on 13.8.1982 five days before the expiry of three years from 18.8.1979 and few months prior to the expiry of the last lease in favour of the first plaintiff.
4. In the suit brought by the plaintiffs, several alternate prayers are also made. The first alternate prayer is for a decree for sale of the half share of the first defendant who is the father of the second defendant for a sum of Rs.5,00,000. The second alternate prayer is for the payment as compensation and damages in the sum of Rs.10 lakhs in the event of the Court declining to grant the plaintiff's prayer for specific performance."
(iii) 1975 THE MADRAS LAW JOURNAL REPORTS 65 KHIVRAJ CHORDIA AND OTHERS V. ESSO STEANDARD EASTERN INC.
This decision is with regard to interpretation of documents and here there is absolutely no complication interpreted in the agreement to sell, which is a registered one, as already cited supra.
14. Over and above the above precedents, I would also like to refer to some other decisions, which are enunciating the law relating to specific performance.
(2010) 10 SCC 512 [Man Kaur (dead) by Lrs. vs. Hartar Singh Sangha] "12. Section 16(c) of the Specific Relief Act, 1963 ("the Act", for short) bars the specific performance of a contract in favour of a plaintiff "who fails to aver and prove that he has 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 terms of the performance of which has been prevented or waived by the defendant".
Explanation (ii) to Section 16 provides that for purposes of clause ) of Section 16, "the plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction."
Thus, in a suit for specific performance, the plaintiff should not only plead and prove the terms of the agreement, but should also plead and prove his readiness and willingness to perform his obligations under the contract in terms of the contract. (See N.P. Thiurgnanam v. Dr. R. Jagan Mohan Rao (1995) 5 SCC 115:AIR 1996 SC 116; Pushparani S. Sudaram v. Pauline Manomani James (2002) 9 SCC 582 and Manjunath Anandappa v. Tammanasa (2003) 10 SCC 390.
13. In the first case, this Court held: (N.P. Thirugnanam case, SCC p.118, para 5) "5. ... 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 and is required to 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 courst must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract."
(ii) (2003)1 M.L.J 694- M.RAMALINGAM (DIED) AND OTHERS VS. V.SUBRAMANYAM (DIED) AND OTHERS, an excerpt from it would run thus:
"10 . . . . When the defendant came with a plea stating that the intention of the parties was only to treat the same as a loan transaction, and it was never intended to be acted upon, which is inconsistent with the terms of the document, a duty is cast upon the defendant to strictly prove that it was a different transaction altogether, and what was recorded in the document was intended to be of no consequence whatsoever. No doubt, the defendant who came with such a plea, can well adduce evidence to show that Ex.A-1 agreement though executed by him, was never intended to be operated as an agreement for sale, but only for a loan transaction, which was not recorded in the document. After careful consideration of the available materials, the Court may hasten to say that the appellants have miserably failed to prove that it was a loan transaction, and the agreement was never intended to be acted upon. The defendant has not examined any independent witness or the attestors to the document, nor has he placed acceptable materials to hold so. Except the interested testimony of the defendant, nothing more is available on record."
15. A mere perusal of all those judgements would exemplify and demonstrate that the relief of specific performance, no doubt is a discretionary remedy and the Court is expected to exercise its judicial discretion in ordering specific performance. The plaintiff who seeks specific performance, as per Section 16 of the Specific Relief Act, should necessarily approach the Court with clean hands and there should not be any falsehood on the part of the plaintiff. In this background, the judgements of the Courts below have to be analysed in the light of the evidence available on record.
16. The trial Court in its detailed judgement discussed all the factual issues, by applying the correct propositions of law and ultimately decreed the suit, whereas, the first appellate Court in paragraph No.12 rendered its judgement by misapplying the concept 'onus of proof'. Ex.A1 is a registered agreement to sell. Even as per the written statement and the additional written statement, Ex.A1 was admitted to be the one emerged as a registered agreement to sell. However, the main contention of the defendants was that it was not intended to be acted upon. In such a case, the 'onus of proof' was on the defendants to prove the same.
17. Defendants 1 and 2, who are the mother and son, examined themselves as D.W.1 and D.W.2 and no other witness was examined. Even though D.W.1 admitted that one of the attesting witnesses to Ex.A1, namely, Arunachalam was their relative, the defendants had not chosen to examine him on their side. On the other hand, the plaintiff, by way of abundant caution, on his side examined P.W.2 who happened to be the scribe as well as the attesting witness to the said agreement to sell. The first appellate Court erroneously held as though P.W.2 was only the scribe and not an attesting witness. A mere perusal of Ex.A1 would indicate and display that he signed as a scribe as well as attesting witness. Over and above that Ex.A1 is a registered document attracting the presumption as contemplated under illustration (e) to Section 114 of the Indian Evidence Act. Section 92 of the Indian Evidence Act should not be lost sight of. The decisions emerged thereunder would run thus:
(i) (1982) 1 SCC 4, at page 10 -Gangabai v. Chhabubai, certain excerpts from it would run thus:
"11. The next contention on behalf of the appellant is that sub-section (1) of Section 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parol evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-section (1) of Section 92 declares that when the terms of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms. And the first proviso to Section 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-section (1) of Section 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 (Tyagaraja Mudaliyar v. Vedathanni919). The trial court was right in permitting the respondent to lead parol evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parol evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.
(ii) 1993-2-L.W.205 NANJAMMAL (DIED) AND ANOTHER V. PALANIAMMAL, certain excerpts from it would run thus:
"5. It was one of the contentions urged in the Court below that the plaintiff had not even obtained encumbrance certificate before the execution of Exhibit A1 and she had not taken the title deed from the defendant. The Court below has pointed out the recital in Exhibit A1 under which the defendant had undertaken to obtain an encumbrance certificate and give it to the plaintiff. The fact that the plaintiff had not taken the title deed in advance does not in any way discredit the truth of the agreement in Exhibit A1. In fact, the evidence of the defendant is that what was written was really an agreement though it was only for the purpose of securing the loan. She (defendant) has admitted that the plaintiff wanted her to execute an agreement for sale by way of security for the loan and she did execute such an agreement. When that is the fact, it is not open to the defendant to raise a plea that the terms of the agreement should be ignored as the real purpose was to secure the loan transaction. It is conceded by learned counsel for the appellants that the defendant is barred from raising such a plea by S.92 of the Indian Evidence Act.
6. Hence the only question to be considered is whether the relief of specific performance should not be granted to the plaintiff. The normal rule is that once the truth of the agreement is made out the Court shall enforce it unless there are circumstances which would prove that equity will suffer by enforcing the agreement for sale. In the present case no such circumstances has been brought to the notice of the Court either in the pleadings or in the evidence to show that equity favours the defendant and relief of specific performance should be denied. The defendant has stated in the evidence that the property was worth much more than Rs.1,01,000/- at the time of the agreement. But there is absolutely no evidence in support of the same. No document has been produced to prove the value of the lands in the locality and no witness has been examined to speak to the same. In such circumstances we cannot accept the case of the defendant that the property is more valuable than the consideration mentioned in Exhibit A1."
18. A mere perusal of those decisions would highlight and spotlight that if there are certain recitals in such registered document then contra evidence cannot be adduced by either of the parties. Pleading that the said document was not intended to be acted upon, is different from pleading that certain averments found set out therein are untrue.
19. Here in the registered document Ex.A1 itself the defendants admitted that a sum of Rs.50,000/-, out of the total sale consideration of Rs.60,000/- was paid by the plaintiff to the defendants and in such a case, quite contrary to such an averment, the defendants cannot be heard to say that such amount was not received by them.
20. The learned Senior counsel for the plaintiff, at this juncture would invite the attention of this Court to the relevant portion of the evidence of D.W.1, which would run thus:
VERNACULAR (TAMIL) PORTION DELETED (emphasis supplied)
21. A plain and mere reading of it would show that during cross-examination, P.W.1 herself admitted about the receipt of money and that she would also state that on receipt of the plaintiff's advocate notice shortly after her husband's death, she made arrangements for giving reply and reply notice was also given and that she also contended that she would remain in the suit property for five years. As such, regarding receipt of Rs.50,000/- by the defendants is concerned, it is clear that the defendants contention to the contrary is not tenable. These salient features have not been considered by the first appellate Court even though the trial Court correctly appreciated the relevant facts.
22. Regarding issuance of reply notice is concerned it was contended on the defendants' side as though no such reply notice in the form of Ex.A5 dated 15.5.2000 was given by the defendants to the plaintiff through their counsel and the counsel concerned also was examined and it appears, he gave some evasive answer. The fact remains that D.W.1 herself admitted that a reply was given with the help of her employer by engaging an advocate. If really the reply was not the one as contained in Ex.A5, then it is not known as to what reply was actually given with the help of D1's employee through an advocate. A copy of that reply was not produced before the Court. As such, these facts would clearly exemplify that the defendants have not come forward with a clear and true plea. Purely for the purpose of somehow or other wriggling out of her liability to execute the sale deed, such contradictory pleas were taken.
23. The contention on the side of the defendants that as on the date of emergence of Ex.A1, D2 was only 17 years and 9 months old fails to carry conviction with the trial Court as well as with this Court for the reason that in the written statement itself, the defendants pleaded that the property actually belonged to D1 and she was the absolute owner of the same and in such a case in the absence of any specific plea that as on the date of Ex.A1-Sale Agreement, D2 also was one of the co-sharers, the question of entertaining the plea would not arise.
24. My mind is reminiscent of the following maxims:
(i) Ex abundanti cautela Out of abundant caution; to be on the safe side.
(ii) Abundans cautela non nocet Abundant caution does no harm.
(iii) Surplausagium no nocet Extraneous matter does no harm.
(iv)Utile per inutile non vitiatur What is useful is not vitiated by the useless.
The aforesaid adages would reveal that merely because of abundant caution certain
25. The learned counsel for the defendants inviting the attention of this Court to the following excerpts in Ex.A1 VERNACULAR (TAMIL) PORTION DELETED would develop his argument that when the registered document itself contemplates that D2 was having right over his ancestral property, then there is no question of the plaintiff contending to the contrary.
26. I would like to point out that in Ex.A1 itself it is found specified that the suit property was purchased by D1 as her self-acquired property. However D2 was referred to as a person having right as ancestral property. The term @gpJuh$pjkha[k;@ would connote and denote that the said property was his ancestral property. In my considered opinion that is not the case of even the defendants because in the written statement or additional written statement, no such plea was taken to that effect and it is against the available evidence on record. D2 was not the owner of the suit property at the relevant time of execution of Ex.A1 and he was added as one of the executants on the assumption that he was a major and it was only by way of abundant caution and in such a case, the entire Ex.A1 cannot be treated as void ab initio.
27. The contention on the side of the defendants that D1's husband was working as collecting agent for the plaintiff, who was a retired Block Development Officer, has not been established by any evidence. Relating to the contention raised by the defendants that if really the transaction emerged as an agreement to sell, then there would not have been any necessity to provide two years time for performing the contract, I would like to point out that simply because two years' time was contemplated there is no presumption that it should be treated only as a security. There should be some evidence in support of the contention of the defendants de hors or over and above the depositions of D1 and D2 as D.Ws.1 and 2. In fact, evidence aliunde was required to prove their plea, which the defendants failed to adduce.
28. The depositions of D1 and D2 as D.W.1 and D.W.2 would remain only as their ipse dixit. If really D1's husband was working as collecting agent, certainly, in the village some person might be knowing about the said fact and they could have been examined, but that was also not done.
29. On the side of the defendants it was contended that the sale consideration found specified in Ex.A1 was meagre, comparing the market value.
30. Once again there is no shard or shred, miniscule or jot, molecular or iota of evidence found produced before the Court to show and establish that at the relevant point of time, so to say, during the year 1999 the properties similar to that of the suit property were sold for higher value. As such, in the absence of evidence, the Court cannot assume that the contentions of the defendants are valid.
31. The duty of the first appellate Court are found exemplified in the unreported judgement of this Court dated 17.7.2009 passed in S.A.No.888 of 2007 (Spur Tank Road Filling Station and another vs. F.Jayakumar and another), the relevant portion of which would run thus:
18. The oral evidence and the documentary evidence adduced by both sides have not been discussed, as it ought to have been dealt with by the last Court of fact.
19. It is trite proposition of law that the first appellate Court, which happened to be the last Court of fact, to analyse both oral and documentary evidence afresh and arrive at an independent conclusion.
20. In this case, the judgement of the first appellate Court, to say the least, is far from satisfactory, as the learned District Judge has totally ignored his responsibility to analyse the oral evidence and also the documentary evidence and arrived at the conclusion."
32. Incommensurate with the relevant provisions of law, the first appellate Court, being the last Court of fact was expected to act but here it is not justified in simply reversing the judgement of the trial Court. It is the duty of the first appellate Court to formulate relevant points for consideration and point by point if the appellate Court wants to disagree with the trial Court, then reasons should be found spelt out to do so. But, in this case, by misapplying the concept 'burden of proof' the first appellate Court held that the trial Court picked holes in the evidence of the defendants without expecting the plaintiff to prove and establish his case. The fact remains that the plaintiff, by examining himself as P.W.1 along with P.W.2 and also marking Ex.A1 got the burden shifted to the defendants' side. It is not as though the plaintiff attempted to fob off unjustifiably the burden of proof on the defendants.
33. It is trite proposition of law that the 'burden of proof' is ambulatory and not static. Once the burden got shifted, it was for the defendants to prove their plea that Ex.A1 was not intended to be acted upon. Except the oral testimony of the defendants, absolutely there is nothing to support their plea. As such, considering all these facts, the trial Court in its reasoned judgement decreed the original suit. However, the first appellate Court, as pointed out supra misapplied the law and misunderstood the evidence in simply reversing the findings of the trial Court, warranting interference in second appeal.
34. To the contention on the side of the plaintiff that as per Section 20 of the Specific Relief Act, the Court is not bound to order for specific performance, I would like to refer to the decision of the Honourable Apex Court reported in (2010) 7 SUPREME COURT CASES 717 LAXMAN TATYABA KANKATE AND ANOTHER VS. TARAMATI HARISHCHANDRA DHATRAK. A mere perusal of it would amply make the point clear that specific performance of an agreement to sell cannot be denied unless the case of the plaintiff falls within the exceptions of Section 20(2) of the Specific Relief Act.
35. The recent decision of the Honourable Supreme Court would point out that unless there are certain defects in the plaintiff's case, the question of refusal on the part of the Court to order specific performance would not arise. As such, I am of the considered view that the substantial questions of law are to be answered in favour of the appellant/plaintiff as under:
(a) Substantial question of law No.(i) is answered to the effect that the first appellate court was not correct in applying the concept 'burden of proof' in deciding the appeal.
(b) Substantial Question of law No.(ii) is answered to the effect that the first appellate court did not adhere to the provisions of law in disagreeing and upsetting the findings of fact rendered by the trial court and the first appellate court wrongly held as though Ex.A1 was not intended to be acted upon, quite contrary to the available evidence.
(c) Substantial question of law No.(iii) is answered to the effect that D2 was not the owner of the suit property and he was added only by way abundant caution in Ex.A1 and as such, Ex.A1 will not become void simply because D2 was a minor at the relevant time of execution of Ex.A1.
and as against the respondents/defendants.
36. In the result, the second appeal is allowed, setting aside the judgement and decree of the first appellate Court and restoring the trial Court's judgement. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
Msk To
1.The Principal First Additional Sessions Judge, City Civil Court, Chennai.
2.The 11th Assistant City Civil Court Judge, Chennai