Madras High Court
Futnani Dairy Farm And Anr. vs P. Rangaswamy Nadar And Anr. on 24 June, 1993
Equivalent citations: (1994)1MLJ119
JUDGMENT Srinivasan, J.
1. Defendants 2 and 3 are the appellants. They are aggrieved by the decree for specific performance passed by the First Additional Subordinate Judge, Chengalpattu, in favour of the first respondent herein. For the sake of convenience, the parties are referred to by their rank in the suit.
2. The case of the plaintiff is as follows: The first defendant, who is the owner of the suit property which is an agricultural land comprised in Survey Numbers 14 and 14/1 in Egathur Village, Chingleput District of an extent of 7.35 acres fully described in the plaint, executed an agreement at Srivaikuntam on 20.9.1982 in favour of the plaintiff agreeing to convey the property to him for a total sum of Rs. 1,65,000 and received an advance of Rs. 15,000. The agreement stipulated that the sale should be completed and a deed should be executed and registered within six months therefrom, and that the plaintiff would be at liberty to take possession of the property in the meanwhile. The plaintiff has always been ready and willing to pay the balance of consideration and tenders the same along with the plaint. The plaintiff has also taken possession of the property. It would appear that on 11.10.1982 the first defendant executed and registered a sale deed in relation to the said property in favour of the second defendant in violation of the agreement in favour of the plaintiff. The plaintiff came to know of the same from a letter received by him from the first defendant that her husband, who died on 7.7.1982, had borrowed some money from one of the partners of the second defendant firm and that she was compelled to sell the property to the second defendant. She expressed her inability to perform the agreement and offered to return the advance of Rs. 15,000. The second defendant represented by the third defendant, one of the partners, was always aware of the agreement in favour of the plaintiff and in order to make it appear to be a valid sale in his favour ante-dated the document as if it was executed on 30.6.1982. Defendants 2 and 3 are not bona fide purchasers without notice for value. The recitals in the document in favour of the second defendant show that it is brought into existence only on or about 11.10.1982 when it was supposed to have been registered. The sale is null and void and not enforceable in law. The second defendant did not get any right under the document. The plaintiff has, therefore, prayed for a decree for specific performance directing the defendants to execute a conveyance in favour of the plaintiff after receiving the balance of sale price.
3. The first defendant filed a written statement raising the following pleas : It is true that she entered into an agreement with the plaintiff on 20.9.1982. Originally she entered into agreement with the father of the third defendant for the sale of the property and as the period of agreement expired, she entered into an agreement with the plaintiff. Thereafter, she was forced to execute a sale deed in favour of defendants 2 and 3 on 11.10.1982. When her husband was alive, he had some transactions with the father of the third defendant and the property was given for lease for a certain period. The father of the third defendant was enjoying the usufructs and even after the expiry of the lease, he continued to enjoy the same against the willingness and protest of the first defendant and her husband. After the death of her husband, she was threatened that she would face serious consequences and thus forced to execute the sale deed. The document was prepared by one S.A.Rajan, Advocate, Madras, who is also advocate for defendants 2 and 3. She signed the document only on 11.10.1982 and did not notice the date of sale deed as 30.6.1982. Out of the sale consideration of Rs. 1,25,000 she was given only a sum of Rs. 5,000 on the date of registration and defendants 2 and 3 promised to settle the account after the receipt of the registered deed. She was persuaded by the advocate S.A. Rajan to accept the terms and conditions of defendants 2 and 3 as otherwise she would be put into trouble. Believing their words and the promise given by the advocate S.A. Rajan that the remaining amount could be realised from them, she executed the document on 11.10.1982. She was not aware that the document was ante-dated.
4. Defendants 2 and 3 filed a written statement setting out the following case:
The truth of the agreement in favour of the plaintiff is denied and at any rate defendants 2 and 13 had no knowledge of the same. Possession could not have been delivered to the plaintiff as alleged by him, as even during the year 1975, the husband of the first defendant handed over possession of the suit property to defendants 2 and 3 and they continue to be in possession of the same till now. They are not aware of the readiness and willingness of the plaintiff. On 11.10.1982 the first defendant executed a registered sale deed and registration has been completed. The husband of the first defendant was known to defendants 2 and 3 from 1974. During March, 1982 when he was at Madras, he expressed his desire to sell the suit property to defendants 2 and 3. They entered into an agreement to purchase the same on 15.3.1982 with the first defendant and her husband. During June, 1982, the husband of the first defendant was in Stanley Hospital as an in-patient and the sale deed could not be completed though stamp papers were purchased. As agreed, the first defendant and her husband obtained income-tax clearance certificate and handed over the same to the defendants. However, during June, 1982 the first defendant's husband expressed his desire to execute and register the conveyance after returning from Srivaikuntam. He left by the end of June and, therefore, the execution and registration of the sale deed were postponed. He died on 7.7.1982 at Srivaikuntam. Two weeks later, the first defendant came to Madras with her brother-in-law and promised to execute and register the sale deed. Inasmuch as the first defendant was the owner of the property and her late husband was to join the sale deed by way of abundant caution, all the defendants decided that the first defendant should execute the sale deed which was already prepared on stamps, after deletion of any reference to her late husband. The first defendant left for Srivaikuntam and did not return to Madras for registering the conveyance as promised by her and on 11.9.1982 defendants 2 and 3 sent a telegram about their readiness to go through the sale. The telegram was followed by a notice by their advocates on the same day, which was received by the first defendant on 13.9.1982. In the second week of October, 1982, she came to Madras and expressed her willingness to execute and register the document. Defendants 2 and 3 are transferees for value and they paid their monies without any notice of any contract as alleged by the plaintiff. To the knowledge of defendants 2 and 3, the plaintiff never entered into possession of the property. Later on after the suit was filed, the plaintiff, who is generally aggressive, at the time of the visit of the Court Commissioner of which there was no due or proper notice to the defendants, the plaintiff inducted his workers, obviously by way of trespass, to make it appear as if he was in possession. It is not known whether the first defendant for any reason had colluded with the plaintiff to make it appear as if an agreement was entered into even before the sale could be completed. At any rate, the first defendant ought not to have agreed to such an agreement even if it was true especially when she had received a lawyer's notice on 13.9.1982. The sale in favour of defendants 2 and 3 is true and valid. The plaintiff has not come to court with clean hands and is not entitled to the discretionary and equitable relief of specific performance. However, non-performance can be adequately met with by pecuniary compensation in favour of the plaintiff by the first defendant and, therefore, the plaintiff cannot succeed in the suit. Hence, the suit should be dismissed.
5. The first defendant, who filed a written statement, remained exparte thereafter. The plaintiff examined himself and filed two documents in his support. Defendants 2 and 3 examined the third defendant and another partner of the second defendant firm as D.W. 2 and D.W. 1 respectively. They also examined their accountant as D.W. 3. They filed 25 documents in support of their case. As soon as the suit was filed, a Commissioner was appointed by the court to inspect the property and submit a report. The report of the Commissioner is marked as Ex. C-1 and the plan prepared by him is marked as Ex. C-2. The trial court framed four issues and found all of them in favour of the plaintiff. As per the findings of the trial court, the agreement in favour of the plaintiff is true and anterior to the sale deed in favour of defendants 2 and 3. The agreement alleged by defendants 2 and 3 said to have been entered on 15.3.1982 is found to be not proved and the said agreement must have been prepared later. The sale deed in favour of defendants 2 and 3 has also been prepared later, i.e., after the agreement in favour of the plaintiff. Defendants 2 and 3 are not in possession and the plaintiff has proved his possession. Defendants 2 and 3 have also not proved that they are bona fide purchasers for value without notice. On the above findings, a decree has been passed in favour of the plaintiff for specific performance as prayed for by him.
6. Before considering the arguments advanced on both sides, we will analyse the evidence on record. Ex. A-1 is the agreement dated 20.9.1982 in favour of the plaintiff, who has examined himself as P.W. 1. He has given evidence that he paid a sum of Rs. 15,000 on the date of agreement and the total consideration was fixed at Rs. 1,65,000. He has spoken to the fact that the agreement was executed by the first defendant. He has also deposed that he took possession of the property as he was authorised to do so by the terms of the agreement. The first defendant has remained ex parte after admitting the genuineness of the agreement in favour of-the plaintiff. She has also admitted the receipt of Rs. 15,000 by way of advance. Her letter written to the plaintiff on 19.10.1982 has been marked as Ex. A-2. In that letter, she has stated that due to compulsions and forced circumstances, she executed a sale deed in favour of the second defendant on 11.10.1982. She also stated as during the life time of her husband, he has borrowed some money from Futnani the latter had negotiated with her husband for sale of her properties. She has also stated that after the death of her husband, she has been pressurised by Futnani through his advocate S.A. Rajan to execute the sale deed in his favour. She has expressed her sorrow for not being able to fulfil the agreement in favour of the plaintiff and offered to return the advance of Rs. 15,000. It is not the case of the defendants that the signatures of the first defendant found in Ex. A-1 and Ex. A-2 are not true. There is not much dispute in this case about the execution of Ex. A-1 by the first defendant. Defendants 2 and 3 pleaded ignorance of the same.
7. Ex. B-1 is a lease deed between the first defendant and her husband on the one hand as lessors and Futnani Poultry Farm, a registered partnership firm as lessee on the other. The document bears the date 27.11.1975. It is engrossed on Stamp papers worth Rs. 80 in all besides four plain papers. The first page is on a stamp paper of Rs. 50 purchased on 22.3.1973. The second page is on a stamp paper of Rs. 30 purchased the same day but from a different stamp vendor. Both are in the name of Mr. Futnani. This shows that Mr. Futnani would usually have old stamp papers with him to be used for his transactions. There is nothing in evidence to show that there was any negotiation even in 1973 between the parties. The contents of the document read that A. Krishna Pillai (husband of the first defendant) and Dr. B. Sakunthala (first defendant) are executing the same as the lessors. But in pages 1 and 2 A. Krishna Pillai has signed twice. The first signature is as sole proprietor of Vanathi Talkies and the second signature is as individual. There is nothing in the document to connect the same with Vanathi Talkies. Curiously, pages 3 to 6, which are on plain paper, have been signed by A. Krishna Pillai only once in each paper and that is as an individual. The colour of the ink of the signatures of the lessors in pages 1 and 2 is light blue, whereas the colour of the ink of the signatures in pages 3 to 6 is black. There is nothing in the evidence to explain these discrepant features. The document was presented for registration on 21.1.1976. It bears an endorsement that registration was refused on 25.8.1976. It is seen from Exs. B-3 and B-4 that three documents were presented for registration on the same day i.e., 21.1.1976. Ex. B-1 is the third document bearing No. P3/76. There is no evidence to show as to what the other two documents are. Exs. B-3 and B-4 show that the defendants were called upon to produce the income-tax clearance certificate for the purpose of completing the registration of the documents and in default registration would be refused. Obviously, the certificates were not produced and ultimately registration was refused on 25.8.1976. This document Ex. B-1 is mainly relied on by defendants 2 and 3 to prove their prior possession of the suit property from 1975. The recitals in the document read that the lessors viz., the husband and wife, own and possess the properties set out in Schedules A and B thereto and they are leasing out the same to the lessees on a yearly rent of Rs. 3,000. It is further stated that the lease amount shall be paid to Messrs. Murlimal Santram & Company to whom the lessors owed money. The period of the lease is stated to be five years. A clause in the lease deed is to the effect that so long as Messrs. Murlimal Santram & Company acknowledge having received the rent regularly from the lessees, the lessors shall not be entitled to determine the lease. Schedule A describes an agricultural land in Survey No. 5 in the village of Egattur of an extent of 7.25 acres. Schedule B describes an agricultural land in Survey No. 14/1 in the same village of an extent of 5.17 acres. The document does not contain any clause that possession was handed over to the lessees; nor does it authorise the lessees to take possession as such. The terms of the document are very peculiar, but they have not been explained by any of the witnesses. Two persons have attested the document and none of them has been examined.
8. Ex. B-2 is a letter dated 27.11.1975, the same date as that of Ex. B-1, written by the first defendant to Mr. Kishore Kumar Futnani, a partner of M/s. Futnani Poultry Farm. Strangely, it is on a stamp paper of the value of Rs. 1.25. If it was intended to be an agreement, it should have been on a stamp paper of Rs. 2.50. The stamp paper was purchased on 5.4.1973 from a stamp vendor different from the two stamp vendors from whom the stamps for Ex. B-1 were purchased. The stamp paper stands in the name of Futnani. This also shows that Mr. Futnani was in the habit of keeping old stamp papers. According to the letter, the first defendant has directed the addressee to take care of her farm at Egattur as she was likely to be transferred to moffusil places and as there was nobody to take care of the firm. The relevant part Of the letter reads:
...I request you to enter possession of the farm as my lessee from to-day. As myself and my husband have borrowed amounts by way of loan on Hundis, you may possess the farm, until we repay the amount with interest.
The schedule describes an agricultural land measuring about 7.35 acres comprised in Survey Numbers 14 and 14/1 in Egattur Village. The Schedule does not set out the boundaries and does not contain any other details. This letter is attested by four persons including the husband of the first defendant. The letter does not make any reference whatever to Ex. B-1. The description of the land in the letter is different from the description of the land in Schedule B to Ex. B-1. It cannot be presumed that the land in Schedule B to Ex. B-1 forms part of the land described in this document. There is no evidence to explain the discrepancy. While in Ex. B-1 the loan is said to have been taken from M/s. Murlimal Santram and Company, this document reads as if the loan was taken from the addressee. There is no explanation for this discrepancy also. Ex. B-5 is a letter by the first defendant and her husband written on 21.10.1975 to M/s. Murlimal Santram & Co., According to the letter, the first defendant and her husband have farm properties measuring about 14 acres in Egathur Village and a cinema theatre known as Vanathi Talkies. It is also stated that farm properties were already offered as security by deposit of title deeds in favour of Indian Bank, Thiruvanmiyur for a value of Rs. 44,000. There is an undertaking to create and register first simple mortgages in favour of the addressees encumbering the farm property and Vanathi Theatre in security of the debts due. As per the letter, a sum of Rs. 80,000 was due already and if any further amount was advanced by the addressee, the properties would be security therefor also. The addressee is authorised to collect and receive a sum of Rs. 250 every day after the registration of the mortgages from out of the collections made in the theatre and appropriate the same towards the debts due under the mortgages. The paragraph relating to possession is very significant and it reads thus:
In respect of the farm lands, as the mortgages created are simple mortgages, today we deliver physical possession of these two estate lands together with buildings fixtures and standing crops in the presence of the concerned officer of the village, and having taken the possession, you have also put your servants and workers to be in-charge of the farm properties. Until the entire amount is paid up, you will be in possession of the farm properties and work-up on the farm improving of the same, and adjust the lease money at a specified rate to be mentioned in the lease deed, as against the debts payable by us.
The letter is attested by Mr. S.A. Rajan, Advocate, who has appeared for the appellants in this appeal and argued the matter. It is his junior Mr. S. Murali who was on record, appeared for the defendants in the trial Court. The contents of the letter run counter to the contents of Ex. B-1 as well as Ex. B-2. There is no evidence on record to explain the discrepancy.
9. Exs. B-6 and B-7 are letters from the Deputy Commercial Tax Officer to M.D. Futnani calling upon him to produce the copy of the lease agreement with the first defendant and her husband regarding the landed property at Egattur Village. The letters are dated 13.7.1981 and 31.8.1981. It is seen from Ex. B-7 that M.D. Futnani had prayed for a month's time to produce the copy of the lease agreement in his letter dated 21.7.1981. The two documents do not in any way help the case of defendants 2 and 3.
10. Ex. B-8 is said to be the agreement dated 15.3.1982 entered between the first defendant and her husband on the one side and the second defendant on the other. It is on a stamp paper purchased on 13.3.1982 in the name of Futnani. The first page is on the stamp paper and it contains only the signatures of the first defendant and her husband. The signature of the second defendant's partner is not found in the first page. The second page is on a plain paper. It contains the signatures of the two vendors and the partner of the second defendant. It is attested by two witnesses, none of whom has been examined to speak in support thereof. It is the case of the plaintiff that this document has been ante-dated and brought into existence on a much later date. As per the recitals of the document, the first defendant is the only owner of the properties described therein and her husband, who has no right to the property, has agreed to join the same. The consideration is Rs. 1,25,000 out of which a sum of Rs. 25,000 was paid as advance on the date of the agreement. It is stated that the purchaser may pay off mortgage loans subsisting on the property, one in favour of Chengalpattu District Primary Land Development Bank, Chengalpattu, and the other in favour of Tamil Nadu Small Industries Development Corporation, Madras, either before or after purchase. The time for completion of the transaction is six months from the date of the agreement. The balance of consideration is to be paid on the date of sale deed. The schedule describes the property as agricultural land measuring 7.35 acres in Survey Numbers 14 and 14/1. As per the document, the purchaser is in physical possession of the property. That is contrary to the recitals in Exs. B-1, B-2 and B-5.
11. Ex. B-9 comprises of three cash vouchers. The first of them is dated 15.3.1982 purporting to be evidencing the payment of Rs. 25,000 to the first defendant and her husband. Both of them have signed on a revenue stamp affixed at the bottom. It is the evidence of D.W. 1 that the other two vouchers do not relate to the suit transaction. The second voucher purports to be in evidence of payment of a sum of Rs. 1,000 made towards the account to the first defendant in cash on 25.5.1982. The number of the voucher is 249. It should be noted that the earlier voucher dated 15.3.1982 does not bear any number. The third voucher is again for payment of a sum of Rs. 21,000 to the account to the first defendant on 21.7.1975. The evidence does not disclose the transactions under which the two payments were made to the first defendant.
12. Ex. B-10 is a letter written by S.A. Rajan, Advocate to Mohanlal Futnani, father of the third defendant, on 18.3.1982. According to the letter, the advocate verified the encumbrance certificate and it is clear that the sale in 1979 was made by auctioning the property at the instance of Land Development Bank. The advocate has opined that it might have been done without any knowledge of Mr. Pillai, obviously referring to the first defendant's husband. According to the letter, the first defendant's husband wants to leave for Tirunelveli and if the addressee feels like, he can relieve him, so that the latter can work for the I.T. clearance. It is also stated that the advocate will send the corrected copy of the sale deed the next day. Though D.W. 1 says that the letter relates to title to the suit property, it cannot be correct as it refers to an auction sale in 1979. D.W. 1 has not chosen to explain the contents of the document. The document does not by itself disclose that it relates to the suit transaction.
13. Ex. B-11 is the sale deed under which the first defendant has sold the suit property to the second defendant. The stamp papers have been purchased on 8.6.1992 and 9.6.1992 in the name of the first defendant. There is no explanation at all as to why the stamps were purchased in her name as admittedly the stamp papers will be purchased only by the purchaser. It is also admitted in evidence that the sale deed was prepared by S.A. Rajan, counsel for the defendants. The date of the sale deed as entered in the document is 30th day of June, 1982. The figure 30' and the letters 'th' are written in ink while the remaining part is typed. It is in evidence of defendants 2 and 3 that the document was prepared and made ready even in June, 1982 for being executed by the first defendant and her husband and after his death, the portions referring to the first defendant's husband were removed by whitening those parts. The document was presented for registration on 11.10.1982. It is admitted that the document was executed only on that day. It is attested by two witnesses, none of whom has been examined. Nor the identifying witnesses have been examined. The reverse side of the first page of the document bears an endorsement that a sum of Rs. 74,000was paid in the presence of the Sub Registrar by the claimant to the executant. The third defendant has signed on that page on the footing that he paid the amount on behalf of the second defendant. As per the recitals of the document, the vendor had executed two mortgages, one in favour of Chengalpattu District Primary Land Development Bank for a sum of Rs. 15,000 and another in favour of Tamil Nadu Small Industries Development Corporation, known as SIDCO, for a sum of Rs. 1,00,000. According to the document, a sum of Rs. 20,000 was due to the Chengalpattu District Primary Land Development Bank and a sum of Rs. 31,000 was approximately due to SIDCO, totalling to Rs. 51,000. The recital relating to possession of the property reads thus:
Whereas, shortly before the vendor left for Nagercoil to which station she left from Madras to begin with, she requested the Purchaser to be in occupation of the property as caretakers and that the purchasers are now holding possession of the property;
This recital runs counter to the recitals in Exs. B-1, B-2, B-5 and B-8. As regards consideration, the total is shown to be Rs. 1,25,000 out of which the purchasers are allowed to retain a sum of Rs. 51,000 for discharging the two mortgages. The balance of Rs. 74,000 is recited to be paid in the presence of the Registrar at the time of registration. The document does not make any reference whatever to Ex. B-8, the agreement dated 15.3.1982. There is no explanation therefor by the defendants.
14. D.W. 1 has deposed that a sum of Rs. 74,000 was paid in cash before the Sub Registrar. He also stated that with the balance of Rs. 26,000 and some amount which the first defendant gave, the encumbrance of the Chengalpattu Co-operative Bank was discharged on 12.10.1982 In the cross-examination he has stated that a sum of Rs. 25,000 was paid as advance under Ex. B-8 and another sum of Rs. 18,000 was paid in between the dates of Exs. B-8 and B-11. According to him, the said amount was for purchase of stamp papers. It is his evidence that the first defendant's husband was in the hospital at the time of purchase of stamp papers and that was why the sale deed was not registered in June, 1982. He has also deposed that as on Ex. B11 date there was no amount due to defendants 2 and 3 from the first defendant's husband and something was due on the date of registration from the first defendant and her husband and defendants 2 and 3 closed the same. According to him, it was about Rs. 10,000 to Rs. 15,000. He has stated that it did not occur to him that the advance of Rs. 25,000 was not mentioned in the sale deed. In another place he has stated that the loan due to Chengalpattu Co-operative Bank was discharged from out of the amount of Rs. 51,000 retained by him under the sale deed. In the end he has stated that so far he had paid only Rs. 1,05,000and a sum of Rs. 20,000 is still with him.
15. D.W. 2, who is said to have paid the sum of Rs. 74,000 to the first defendant in the presence of the Sub Registrar has stated that he does not know the price of the suit property and he did not pay any amount towards consideration before the payment of Rs. 74,000. He has also not paid any amount subsequent thereto. He denies having received a sum of Rs. 74,000 from the first defendant immediately after registration, he does not know whether the second defendant firm had paid any amount to the first defendant before the payment of Rs. 74,000. Ultimately, he has confessed that he has slight idea about Ex. B-11 transaction and the endorsement in Ex. B-11 is his individual capacity and not as a partner of the second defendant firm.
16. D.W. 1 was examined in April, 1983. D.W. 2 was examined on 2.7.1983. Neither of them referred to the books of accounts of the second defendant firm. D.W. 3, who was examined on 2.7.1983, produced the books of accounts of the second defendant firm, which are marked as Exs. B-20 to B-22. D.W. 3 is the accountant of the firm; but the accounts have been written by one P. Singh, who has not been examined. Ex. B-20 is the daily cash book for the period February, 1982 to June 1983. The last entry is made on 2.6.1983. Exs. B-21 and B-22 are ledgers. According to D.W. 3 their accounting year is from 1st July to 30th June. But, Ex. B-20 is from February, 1982 to 2nd June, 1983. It is stated that number of pages were available and defendants 2 and 3 did not want to waste the same. But, in Ex. B-20, pages 37 to 44 are left blank. There is no explanation as to why so many pages are left blank. Again, pages 128 to 199 are blank. There is no explanation therefor also. There is no explanation as to why there is no entry after 2.6.1983. Admittedly, the account books have not been submitted to Income Tax Authorities.
17. D.W. 3 admits that he is not qualified to be an accountant and that he is a science Graduate. But he claims that he has three years' experience in maintaining accounts. In the daily cash book Ex. B-20, there is a lot of space in between each entry and further space between entry for one date and the next date. It should be noted that all the totals in the entire book are entered in pencil. At page 11 there is an entry on 15.3.1982 that a sum of Rs. 25,000 is paid by way of advance to the first defendant for purchase of farm land. The total consideration is mentioned as Rs. 1,25,000. The voucher number is 357/A. At page 30 there is an entry dated 3.6.1982 for payment of Rs. 17,000 to the first defendant for purchase of stamp papers, typing charges, legal expenses etc., for preparing the sale deed of Egattur lands. The voucher number is mentioned as 279/A. There is no explanation as to how the voucher number on a later date viz., 3.6.1982 could be earlier to the number of the voucher of an earlier date viz., 15.3.1982 The fact that the vouchers with respect to the first defendant alone are not given the serial numbers but are given numbers as 357/A, 279/A etc., is significant. There is an entry at page 33 dated 16.6.1982 for payment of Rs. 1,000 to the first defendant and her husband for conveyance to and from Srivaikuntam. At page 70 there is an entry dated 7.10.1982 for withdrawal of Rs. 74,000 from Chartered Bank for payment to be made to the first defendant before the Registrar. At page 71, the entry for payment of Rs. 74,000 to the first defendant is made on 11.10.1982 under voucher No. 153/A. At page 72, there is an entry dated 12.10.1982 for receipt of Rs. 26,000 from the first defendant towards payment to be made to T.I.I.C. and the Chingleput Co-operative Bank. On the same day there is an entry for payment of Rs. 31,350 in the account of the first defendant to the Indian Bank for taking a draft in favour of the Chingleput Co-operative Bank on her behalf for discharging mortgage. The voucher number is mentioned as 155. There is no other entry relating to the first defendant thereafter.
18. Ex. B-21 is a ledger book. The account of the first defendant is written at page 134. In that page it is entered that a sum of Rs. 25,000 was paid on 15th March, a sum of Rs. 17,000 on 3rd June and a sum of Rs. 1,000 on 16th June, 1982. The total of Rs. 43,000 is carried forward to the next ledger Ex. B-22. At page 112, the entries for payment of Rs. 74,000 on 11.10.1982 and Rs. 31,350 on 12.10.1982 are made. There is also an entry for receipt of Rs. 26,000 from the first defendant on 12.10.1982. As per the entries on that page, a total sum of Rs. 1,22,350 had been paid to the first defendant. That sum includes the sum of Rs. 17,000 alleged to have been paid towards stamp charges and Rs. 1,000 for conveyance. It is not the case of defendants 2 and 3 that the first defendant agreed to pay the stamp charges for the documents. According to the evidence of D.W. 1, the first defendant's husband was in hospital in June, 1982. Hence, it is highly improbable that the first defendant would have accepted the responsibility of purchasing the stamp papers and preparing the sale deed. When it is admitted that the sale deed was prepared by Mr. S.A. Rajan, Advocate for defendants 2 and 3, there was no necessity for paying the amount to the first defendant for purchasing stamp papers. A look at the books of account produced by defendants 2 and 3 shows that they must have been prepared at the time of the suit. We have already referred to the odd numbers found in the vouchers. D.W. 3 has with reference to voucher No. 279/A bearing the date 3.6.1982 deposed thus:
This admission clearly shows not only that the documents were prepared long after the dates they bear, but also that the entries in the account books were manipulated. There is no explanation as to why a transaction said to have taken place in June, 1982 should be entered in a voucher prepared in October, 1982.
19. Ex. B-12 is a letter dated 11.7.1982 written by the first defendant that her husband passed away on 7.7.1982. It is not known from the letter as to whom it is addressed. The date below the signature of the first defendant has been altered from 17.7.1982 to 11.7.1982. At the top of the letter, the name of the place and the date have been written in a different ink. According to D.W. 1 the letter was addressed to him. But, there is nothing to support that version. A slip is stapled to the letter. The slip purports to be a copy of a message sent by phonogram expressing shock by Futnani over the death of the first defendant's husband. Ex. B-13 is the obsequies card pertaining to the first defendant's husband addressed to Mr. Mohanlal Futnani. Neither of the documents is in any way helpful to the present case. Ex. B-14 is an office copy of telegram issued by R. Murali, Advocate, who is admittedly a junior of Mr. S.A. Rajan. It is sent on behalf of defendants 2 and 3 to the first defendant calling upon her to register the sale. Ex. B-15 is a notice issued by the same advocate on the same day i.e., 11.9.1982. In that notice it is stated that a sum of Rs. 25,000 was paid by way of advance and a further sale advance of Rs. 18,000 was made to the first defendant. That averment in the notice is not supported by the entries in the accounts which read that a sum of Rs. 17,000 was paid for the purchase of stamp papers and a sum of Rs. 1,000 was paid for travelling expenses. But neither the sum of Rs. 25,000 nor the sum of Rs. 18,000 paid as advance as alleged in the notice has been referred to in the sale deed Ex. B-11. It is also stated in the notice that by the time when the first defendant received further advance, defendants 2 and 3 were ready and the sale deed in original was prepared on stamp paper. That averment also runs counter to the case now put forward by defendants 2 and 3. Ex. B-17 is a telegram issued by the first defendant to Mohanlal Futnani on 2.10.1982 that she would be starting on 5th evening. Ex. B-18 is a receipt issued by the Chingleput Co-operative Primary Land Development Bank for a sum of Rs. 31,320 byway of crossed draft from the first defendant. There is no reference therein to defendants 2 and 3. Ex. B-19 is a letter written by the first defendant's husband on 1.5.1982 from Dr. M. Mathias Hospital Nursing Home, Srivaikuntam. It is addressed to Madhusuthan Futnani, Director of Muralimal Santhram & Company. The addressee has not been examined in this case. As per the letter, the first defendant's husband fell down while entering the train and borke his left knee and he was undergoing treatment. According to the letter, he-may not be able to walk in future and the only possibility of going to Madras was to travel in an ambulance for two days. The relevant part of it on which reliance is placed is.
If you are in a hurry to finish the deal, we will all come in an ambulance on receipt of your telegram.
That sentence does not in any way help defendants 2 and 3 to prove that what is referred to therein is the suit transaction. In the absence of any evidence by the addressee of the letter, it is not possible to accept the version of D.W. 1 that the letter related to the suit transaction.
20. Ex. B-23, is a statement of account issued by the Chartered Bank. The account is that of the second defendant. As per the statement, a sum of Rs. 74,000 was withdrawn on the 7th of October, 1982. Besides that, a sum of Rs. 15,498.60 was also withdrawn. But, on the same day a sum of Rs. 89,500 has been deposited in bank. D.W. 3 has spoken to the entry. But he has not explained as to how the amount was deposited on the same day. As per the entries in the account book, the sum of Rs. 74,000 was withdrawn for payment to the first defendant.
But, as seen from Ex. B-23, the amount was deposited in the bank itself. Ex. B-24, is the counter-foil of a challan for deposit of Rs. 31,351 with the Indian Bank for issue of a draft on Chingleput branch in favour of the Special Officer, Chingleput Co-operative Primary Land Development Bank. Ex. B-25 is a certificate issued by the Indian Bank, Madras, that a demand draft was issued for Rs. 31320 in favour of the Chingleput Co-operative Primary Land Development Bank on 12.10.1982. But, as seen already, the entry in the account book of the defendants reads as if Rs. 31,350 was paid to the Chingleput Land Development Bank.
21. There is a clinching circumstance to show that the books of account and the vouchers have been prepared by the defendants for the purpose of this case. We have already referred to one of the vouchers found in Ex. B-9. As per the Voucher, a sum of Rs. 1,000 was paid on 25.5.1982 to the first defendant towards account. The voucher bears the number 249. But, there is no entry in Ex. B.20 On 25.5.1982 evidencing payment of Rs. 1,000 to the first defendant. Even if the voucher relates to some other transactions, it should find a place in the Daily Cash Book. The numbers of the vouchers issued on 25.5.1982 are 270 and 271 as per Ex. B-20. The number of voucher issued on 22.5.1982 was 269. Voucher No. 249 is entered in an entry dated 10.9.1982. As per the entry, it is for payment of Rs. 76.25 made for vehicle's maintenance-purchase of diesel for van. There is no entry whatever in the ledger pages for the first defendant in Exs. B-21 and B-22 for payment of Rs. 1,000 to the first defendant on 25.5.1982. Hence, we have no hesitation to reject the entries in the books of account and the vouchers relied on by defendants 2 and 3 in support of their case.
22. On the basis of the evidence analysed above, we proceed to consider the questions which arise in this case. The first question is whether Ex. A-1 executed in favour of the plaintiff by the first defendant is genuine. We have already referred to the evidence adduced by P.W. 1 and the written statement of the first defendant. In the absence of any contrary evidence, we accept the case of the plaintiff and hold that Ex. A-1 is genuine and the recitals therein are true.
23. The next question is whether the plaintiff is in possession of the property. The evidence of P.W. 1 is supported by the report of the Commissioner marked as Ex. C-1. It is argued that Ex. C-1 is invalid as the Commissioner had not given notice to the defendants before inspection. Reliance is placed on the judgment of the Andhra Pradesh High Court in Narayana Dosjee v. Board of Trustees , in support of the arguments. But the contention is based on a fallacy. The report of the Commissioner clearly says that he went to the premises of the second defendant in Sembudoss Street, George Town, Madras at 10.30 A.M. and Madhu Soodhan Futnani who was sitting in the office room refused to receive the notice given by him. According to the commissioner's report, it was represented that Mr. Kamalesh Futnani had left for Bombay and notice should be served only on him. It is admitted that Madhu Soodhan Futnani is a partner of the second defendant firm. He ought to have accepted the notice on behalf of the firm. When he has been chosen to refuse the notice, it is not open to the defendants to contend that no notice was served by the Commissioner before inspection. It is stated that objections have been filed to the report of the Commissioner and the contents of the report have been denied. That is not sufficient to establish the case of defendants 2 and 3. If defendants 2 and 3 wanted to deny the contents of the Commissioner's report, they should have examined Madhu Soodhan Futnani. There is no explanation for his non-examination. Hence, we accept the report of the Commissioner and hold that the plaintiff is in possession. D.W. 1 has also admitted in the cross-examination that he has not carried out agricultural operation in the leased property. Hence, there is nothing to prove the possession of the suit property being with defendants 2 and 3. We have already referred to the material discrepancies in the documentary evidence with regard to possession. Hence, we hold that the plaintiff entered into possession pursuant to the agreement in his favour.
24. The next question is whether Ex. B-8 is anterior to Ex. A-1. No doubt Ex. B-8 bears the date 15.3.1982. But the evidence discloses that the document is ante-dated. There is no reference whatever to Ex. B-8 in any of the subsequent documents including the sale deed Ex. B-11. There is no explanation for the same. Taking also into account the fact that the vouchers and accounts have been fabricated by defendants 2 and 3, we hold that Ex. B-8 is ante-dated, but it came into existence only after Ex. A-1.
25. Even assuming that Ex. B-8 was prior to Ex. B-1 in date, that will not help defendants 2 and 3 to claim any precedence over the plaintiff. The time mentioned in Ex. B-8 expired on 14.9.1982. Defendants 2 and 3 never sought to enforce the said agreement Ex. B-8. Even the sale deed is not in pursuance of the said agreement. In these circumstances, no reliance can be placed by defendants 2 and 3 on Ex. B-8, even if true.
26. The next question is whether defendants 2 and 3 are transferees in good faith for value. On a perusal of the evidence, we have very grave doubts whether any consideration was paid for Ex. B-11 by defendants 2 and 3. We have referred to the circumstances that a sum of Rs. 74,000 said to have been withdrawn from bank on 7.10.1982 was redeposited with the same bank on the very same day. It is not necessary for us to repeat what we had stated earlier while analysing the evidence. Suffice it to point out that different versions have been put forward at different stages and there is no explanation at all for the material discrepancies. The way in which defendants 2 and 3 have acted shows that there is no good faith whatever in them and they are not transferees in good faith for value.
27. In any event, it is admitted that the entire consideration has not been paid to the first defendant. Hence, defendants 2 and 3 are not entitled to claim the benefit of Section 19(b) of Specific Relief Act. Dealing with the corresponding Section in the old Specific Relief Act viz., Section 27(b), this Court has held in Sinna Ponnu v. Singaru Udayar (1969) 2 M.L.J. 358, that the transferee must have paid the entire consideration in order to claim the protection under Section 27(b) of the Specific Relief Act and if for any portion of the price a security alone had been executed, the transferee cannot claim to be a transferee "who has paid his money". It was held that the words "who had paid his money" in the section are not equivalent to the words "who has agreed to pay his money either in whole or in part". That judgment applies on all fours to this case.
28. Learned Counsel for the appellants places reliance on the following passage in the judgment in Durga Prasad v. Lilawati .
12. It was argued by the learned Counsel for the respondent that the burden was on the appellants, who are the vendees, to prove that they were purchasers in good faith for value and without notice. It is true that the initial burden is always on the vendee to show that he had no knowledge of the agreement. But the vendee has only to discharge this burden by leading a negative evidence. The negative evidence can only consist of his own statement denying the fact that he had no knowledge of the same. As soon as the vendees denies knowledge of the notice, the burden is discharged and then the burden shifts on the vendor to prove that the vendee had the notice of the earlier agreement. In my opinion this is a well settled principle of law and I do not think that any authority is needed in support of this proposition. However, Ramchander Singh v. Bibi Asghari Begum A.I.R. 1957 Pat. 224 and Kirtarath Rai v. Sripat Rai A.I.R. 1928 All. 307can be cited as authorities for this proposition.
29. In view of the findings of fact arrived at by us, the above ruling has no application to this case.
30. Before parting with the judgment, we wish to place on record our disapproval of the conduct of Sri S.A. Rajan, Advocate for the appellants. We have already referred to the written statement of the first defendant that she was pursuaded by him to accept the terms and conditions of defendants 2 and 3 or else she would be put to trouble. She has also stated that the sale deed was prepared by him. We have noted that he has attested Ex. B-5. The evidence shows that he has taken a major part in bringing about these documents. He ought to have entered the witness box to speak to various aspects of the case. Instead of doing so, he appeared as counsel for defendants 2 and 3 in these proceedings. In our opinion, he ought not to have done so.
31. We do not find any reason to diffet from the view taken by the trial court and we dismiss the appeal with costs of the respondent.