Madras High Court
A.Thangarathinam vs Boothathan on 23 January, 2018
Author: S.S.Sundar
Bench: S.S.Sundar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 23.01.2018 CORAM THE HONOURABLE MR.JUSTICE S.S.SUNDAR Second Appeal (MD) Nos.776 of 2006 and 162 of 2015 and M.P.(MD)No.1 of 2006 and 1 of 2015 SA(MD) No.776 of 2006:- A.Thangarathinam : Appellant -Vs- 1.Boothathan 2.Chendu : Respondents Prayer: Second Appeal filed under Section 100 of the Code of the Civil Procedure, against the judgment and decree passed by the I Additional Sub- Judge, Tirunelveli in A.S.No.106 of 2005 dated 26.10.2005 reversing the judgment and decree passed by the Principal District Munsif, Tirunelveli in O.S.No.527 of 2003, dated 25.10.2004. !For Appellant :Mr.T.A.Ebeneser ^For Respondents :Mr.S.P.Maharajan Thangarathinam : Appellant -Vs- Poothathan : Respondent Prayer: Second Appeal filed under Section 100 of the Code of the Civil Procedure, against the judgment and decree dated 07.08.2012 made in A.S.No.141 of 2011 on the file of the Principal Subordinate Judge, Tirunelveli, confirming the judgment and decree dated 19.10.2011 made in O.S.No.318 of 2015 on the file of the I Additional District Munsif, Tirunelveli. For Appellant :Mr.T.A.Ebenezer For Respondent :Mr.S.P.Maharajan :COMMON JUDGMENT
The Second Appeal in S.A.(MD)No.776 of 2006 has been filed against the judgment and decree passed by the First Additional Sub-Court, Tirunelveli, in A.S.No.106 of 2005, dated 26.10.2005, reversing the judgment and decree passed by the Principal District Munsif, Tirunelveli, in O.S.No.527 of 2003, dated 25.10.2004. The second defendant in the suit is the appellant herein.
2.The case of the first respondent / plaintiff in the suit is as follows:
2.1.The plaintiff and the second respondent, who is the first defendant in the suit, had jointly purchased the suit schedule property under a registered sale deed dated 11.06.1976. The northern portion of the suit property was later allotted to the plaintiff and the southern portion of the suit schedule property was allotted to the first defendant. The plaintiff had put up a construction on the northern portion of the suit schedule property and he is in possession and enjoyment of the same. The first defendant approached the plaintiff to sell his property on the southern side allotted to him and after negotiation, a sale agreement was entered into between the plaintiff and the first defendant on 13.10.2001. The sale price was fixed at Rs.2,000/- and paid and the possession of the suit property was also delivered to the plaintiff. At the time of sale agreement, the first defendant handed over the original Patta that stands in the name of the first defendant to the plaintiff. The entire sale consideration was received by the first defendant from the plaintiff. However, the execution of sale deed was postponed by the first defendant without any valid reason. The second defendant knowing the agreement entered into between the plaintiff and the first defendant, cunningly obtained the sale deed from the first defendant in respect of the southern portion of the suit property. Thus, the plaintiff has filed the suit for specific performance of the agreement that was entered into between the plaintiff and the first defendant.
2.2.The first defendant in the suit is the brother of the plaintiff, who executed the sale agreement in favour of the plaintiff. The second defendant in the suit is the subsequent purchaser, who purchased the property from the first defendant, just prior to the suit. The first defendant remained ex-parte throughout. The second defendant had filed a detailed written statement describing the sale agreement as a fraudulent transaction created for the purpose of defeating his rights. The second defendant further contended that he is the bona fide purchaser for value without notice of the sale agreement entered into between the plaintiff and the first defendant and that therefore, the sale agreement is not binding on him. It is further stated by the second defendant that the plaintiff has filed the suit without even issuing suit notice. It was also contended that the plaintiff has no means and that plaintiff did not object to this sale. The second defendant is in enjoyment and the suit is collusive and hence liable to be dismissed. The trial Court dismissed the suit after holding that the plaintiff has not proved his readiness and willingness and that the second defendant is a bona fide purchaser for value without notice of the sale agreement entered into between the plaintiff and the first defendant.
3.Aggrieved by the findings of the trial Court, the plaintiff has preferred an appeal in A.S.No.106 of 2005, on the file of the I Additional Sub-Court, Tirunelveli. However, the appellate Court reversed the findings of the trial Court and decreed the suit as prayed after an elaborate discussion and appreciation of evidence. The lower appellate Court found that the sale agreement is genuine and supported by consideration. The trial Court has specifically given a finding disbelieving the case of the second defendant that the plaintiff and the first defendant has colluded together to create a suit agreement only to defeat the rights of the plaintiff who had purchased the suit property. The lower appellate Court held that merely because the plaintiff and the first defendant are brothers, it can not be concluded that they have colluded together. After analyzing evidence and having regard to the facts and circumstances of the case, the lower appellate Court has found that the suit agreement is a genuine transaction entered into between the plaintiff and the first defendant and it is enforceable. After analyzing the oral and documentary evidence, apart from holding that the plaintiff was always ready and willing to perform his part of the contract, the lower appellate Court has also found that the second defendant is not a bona fide purchaser for value. It is only against the finding of the lower appellate court, the above second appeal is filed by the second defendant in the suit in O.S.No.527 of 2005.
4.In S.A.No.776 of 2006, the learned Counsel for the appellant, raised the following substantial questions law:
?a. When the plaint discloses that one of the terms of the agreement is that the sale should be executed at the time as and when the plaintiff demanded for execution, whether the lower Appellate court ought to have dismissed the suit for specific performance on the ground that the agreement for sale is void for uncertainty under Section 29 of the Indian Contract Act?
b. Whether the lower Appellate Court ought to have dismissed the suit for specific performance when there is collusion between the plaintiff and the 1st defendant is established by the admission made by P.W.1 in his evidence?
c. Whether the judgment of the lower Appellate Court is perverse since the lower Appellate Court failed to consider the admissions made by the plaintiff?
d. Whether the judgment of the lower Appllate Court is warranting interference since no valid reason has been assigned for reversing the judgment of the trial Court??
5.The learned Counsel for the appellant has raised the following issues:
(a) Since no time limit is prescribed for the suit agreement, the agreement is void and unenforceable and the agreement itself is unenforceable due to uncertainty. Since void agreement is not enforceable in law, it is contended that the appeal in A.S.No.106 of 2005 is liable to be dismissed. It was also contended by the learned Counsel for the appellant that no suit notice was issued prior to the filing of the suit and that therefore, there is no bona fide. It is also contended that the plaintiff himself admitted in his evidence that the first defendant did not appear only to help the plaintiff to get a decree for specific performance. Since the case of the second defendant is admitted by the plaintiff in his deposition, it is contended that the lower appellate Court has failed to consider such important aspect. It is also submitted that the case of the plaintiff being negatived by the trial Court, the appellate Court has not given valid reasons to reverse the well considered judgment of the trial Court.
6.This Court considering the submissions made by the learned Counsel appearing for the appellant and the submission of the respondents, perused the records and the judgments of the Courts below. It is true that the second defendant has raised an issue by stating that the suit agreement is a collusive one came into existence to defeat the rights of the second defendant. Except suggesting that the first defendant remained ex-parte and did not contest the suit only to help out the plaintiff, there is no other evidence in this case to hold that the suit agreement is a fraudulent document or collusive document created just for the purpose of defeating the rights of the second defendant. Merely because the first plaintiff and the first defendant are relatives, it cannot be contended that the suit agreement itself was created. It is the definite case of the plaintiff that the first defendant entered into the sale agreement on 13.10.2001. As per the sale agreement, the possession of the property, which is lying on the southern side the property of the plaintiff was handed over to the plaintiff. The entire consideration has been paid on the date of agreement. The plaintiff is the owner of the land on north of the suit property, which is lying on the south of the house that was put by the plaintiff in the land allotted to him.
7. It is the case of the plaintiff that on the date of sale agreement the first defendant handed over the original Patta which stands in the name of the first defendant. Parent documents available with the plaintiff. Even though there is definite pleadings as to the readiness and willingness of the plaintiff to conclude the contract, the first defendant had executed a sale deed in favour of the second defendant on 17.09.2003. The suit has been filed immediately thereafter, without even issuing a suit notice. It is in these circumstances, the question whether the agreement is a genuine transaction or not has to be decided based on the material, not on the basis of surmises.
8.The appellate Court having regard to the specific plea and the material facts, considered the rival submission in the light of evidence and material produced by both parties. The plaintiff examined three witnesses. The plaintiff examined himself as PW1 and examined two others to prove the genuineness of sale agreement. The original parent documents of title deed and Patta in the name of plaintiff and the first defendant have been produced by the plaintiff and marked as Ex-A1, A4 and A5. The sale agreement contains the recital for payment of entire consideration. The plaintiff has let in evidence to show that he had entered into the suit agreement with the first defendant and had paid the entire sale consideration on the date of agreement itself.
9.Going by the recitals, the terms of the agreement appears to be quite natural and the fact that the entire sale consideration was paid under the agreement. The case that the first defendant handed over possession on the date of agreement has been accepted by the lower appellate Court. The learned Counsel for the appellant raised two important points with regard to the suit agreement. The first submission was on the basis of the terms of the sale agreement. It is pointed that no time limit is prescribed in the suit agreement. It was therefore suggested that the suit agreement is not certain and therefore, void as per Section 29 of Indian Contract Act. It is further stated by the learned Counsel for the appellant that no suit notice was issued by the plaintiff before filing the suit and that therefore, the suit for specific performance cannot be granted. The first contention has no legal legs to stand as it is pointed out that the entire sale consideration was paid under the suit agreement. In case, where the sale consideration is paid in full, it is not necessary to fix any time limit for the plaintiff to perform. The only requirement is to get the sale deed. Section 29 of the Indian Contract Act, invalidate the agreement only if the agreement is uncertain. In the present case, where the entire sale consideration had been paid under the agreement failure to prescribe time limit for performance has no significance and such agreement will not render the contract uncertain, as it is only the seller, who is required to execute the sale deed to complete the contract. In such circumstances, this Court is not inclined to accept the contention of the appellant.
10.The second contention is that the suit laid by the plaintiff without even issuing the suit notice is fatal. This submission has no merits. As pointed out earlier, the payment of entire sale consideration is proved. In such circumstances, the plaintiff was just demanding the first defendant to execute the sale deed. It is stated by the plaintiff that he came to know about the sale deed executed by the first defendant in favour of the second defendant, only some time later and that the suit has been filed immediately after the plaintiff came to know about the sale deed dated 19.07.2003.
11.After noticing that the first defendant had executed a sale deed in favour of the second defendant, it is not necessary for the plaintiff to issue suit notice. Exchange of notice at this stage will render the suit liable to be dismissed on the ground of latches or for want of bona fides. It was further contended by the learned Counsel for the appellant that admission of PW-1, in the course of cross examination, was not considered by the appellate court. The learned Counsel for the appellant pointed out that PW-1 in the course of cross examination has stated as follows:
?tha;nkhopahf vjph;thjpfsplk; fpuag;gj;jpuk; vOjpf;nfhLf;f nrhd;d tptuj;ij ePjpkd;wj;jpy; ep&gpf;f KbahJ vd;why; rhpjhd;. ,e;j tof;F jhf;fy; nra;tjw;F Rkhh; 2 tUlq;fSf;F Kd;G vjph;thjpfspk; mt;thW Nfl;bUg;Nghk; vd;why; rhpjhd;. ehDk; 1k; vjph;thjpAk; Nrh;e;J nfhz;L 2k; vjph;thjpia Vkhw;wk; nra;aNtz;Lk; vd;w vz;zj;jpy; th.rh.M.3ia Vw;gLj;jpf;nfhz;Nlhk; vd;why; rhpay;y. 1k; vjph;thjp ntspA+hpy; ,Uf;fpwhh;. tof;Fiuapy; 1k; vjph;thjp vq;fs; Chpy; ,Ug;gjhf Fwpg;gpl;Ls;Nshk; vd;why; rhpjhd;. ,e;j tof;if gw;wpa tpguk; 1k; vjph;thjpf;F njhpAk; vd;why; rhpjhd;. 1k; vjph;thjp ,e;j tof;if gw;wpa tptuj;ij njhpe;Jk; vdf;F MjuT mspf;f Ntz;Lk; vd;W ,e;j tof;fpy; M[uhftpy;iy vd;why; rhpjhd;. jhth nrhj;J KotJk; vd; mDgtj;jpy; ,y;iy vd;why; rhpjhd;. 13.10.2001k; Njjp ehDk; 1k; vjph;thjpAk; fpua xg;ge;jk; Vw;gLj;jpf;nfhz;ljhfTk;> Kd;gzkhf mtUf;F ehd; &.2000- nrYj;jpapUg;gjhfTk;> 1k;vjph;thjp ehd; Nfl;Fk;nghJ fpuag;gj;jpuk; vOjpf;nfhLg;gjhfTk; nrhy;tJ ngha; vd;why; rhpay;y.?
12.If the evidence of PW-1 is considered in entirety, it is not possible to suggest that the plaintiff has admitted in his evidence that the first defendant is colluding with the plaintiff so as to enable him to get a decree in his favour to defeat the rights of the second defendant under the sale deed alleged to have been obtained from the first defendant. No doubt, admission can be taken as a piece of evidence to decide the rights of parties. But such admission should be unambiguous. In the present case it will be unnatural to read the entire evidence of PW-1 to conclude that PW-1 has admitted that the first defendant was colluding with the plaintiff. Since the plaintiff has filed a suit for specific performance against the first defendant, it is not expected from the plaintiff to admit that the sale agreement is executed only to defeat the right of the second defendant. Secondly, the entire evidence of PW-1, would made it very clear that it is his contention that the first defendant has colluded with the second defendant so as to defeat the rights of the plaintiff to get a relief of specific performance.
13.Hence, this Court is unable to accept the contention of the learned Counsel for the appellant that the plaintiff is not entitled to the relief of specific performance. Going by the admitted facts, this Court cannot doubt the readiness and willingness of the plaintiff to perform his part of the contract. The entire sale consideration is paid and there is nothing more required on the side of the plaintiff to complete the sale. Since the plaintiff has established his right to get the relief for specific performance, the relief can be denied only in a case, where it is established that the subsequent purchaser is a bona fide purchaser for value without notice of the sale agreement in the present case. The plaintiff and the first defendant are brothers. The fact that the plaintiff and the first defendant purchased the suit property along with the portion on the northern side is not in dispute. Since the plaintiff has got his property on the northern side and residing there, it is quite natural that the plaintiff wanted to purchase the suit property. The plaintiff has pleaded that he has put up a superstructure pursuant to the sale agreement. It is not in dispute that the sale agreement, which is the subject matter, the suit contains a clause regarding the possession being handed over to the plaintiff under the sale agreement. It is also contended on behalf of the plaintiff that the entire sale consideration was paid on the date of suit agreement. The second defendant has admitted during cross examination that the parent documents were not handed over to him at the time of sale and that first defendant told him that would get it from plaintiff and give it to him. Second defendant did not dispute the possession of property by plaintiff before his purchase. In these circumstances, the second defendant cannot claim himself to be a bona fide purchaser for value without notice of the sale agreement. Having regard to the admitted facts that the plaintiff was in possession of the property, the second defendant is bound to enquire and upon enquiry, it is quite natural that the second defendant would come to know about the sale agreement between the plaintiff and the first defendant. The document of title deed has been marked by the plaintiff. Admittedly, in this case, the second defendant did not enquire the plaintiff, who is the adjacent owner and one of the joint purchasers of the whole property apart from being an agreement holder, in respect of the southern portion. The trial Court has categorically come to the conclusion that the suit agreement is a bona fide transaction and it is true and valid. The trial Court has also found that the plaintiff is always ready and willing to execute his part of the contract. The appellate Court has found that the second defendant is not a bona fide purchaser for value without noticing of the agreement of sale. Having regard to the findings of lower appellate Court, this Court is unable to see any irregularity or any infirmity. The questions that raised by the appellant are factual and hence, this Court does not find any substantial question of law that arise for consideration in this appeal. As a result, the second appeal is dismissed. No costs. Consequently, connected miscellaneous petition is closed. S.A.162 of 2015:-
1.This second appeal has been preferred by the appellant in S.A.No.776 of 2006 who is the plaintiff in O.S.No.318 of 2005 on the file of the Additional District Munsif, Tirunelveli. The suit in O.S.No.318 of 2005 is for permanent injunction restraining the defendants in O.S.No.318 of 2005.
The suit was filed by the appellant only on the strength of the sale deed obtained by the appellant from the first defendant in the suit in O.S.No.527 of 2003. Since the parties have understood the scope of this appeal, both have agreed that the disposal of the appeal in S.A.No.776 of 2006 will give quietus to both the appeals as the decision in O.S.No.318 of 2005 on the file of first Additional District Munsif, Tirunelveli, should be in consonance with the judgment and decree, that is passed in O.S.No.527 of 2003.
2.Plaintiff in the suit in O.S.No.318 of 2005 on the file of the First Additional Sub Court is the appellant in this appeal. It is submitted that the plaintiff has purchased the suit property from one Mr.Chendu, brother of the defendant. It is admitted that the appellant's vender, by name, Mr.Chendu, is the owner of the property. However, the respondent's brother, by name, Mr.Chendu, entered into an agreement of sale with the respondent in respect of the suit property earlier. It is also admitted that during the subsistence of the contract, the respondent's brother by name, Mr.Chendu, executed a sale deed in favour of the appellant. In the suit filed by the respondent against his brother for specific performance, the appellant is also a party, who is impleaded as a subsequent purchaser. Though the appellant has raised a defence in the suit filed by the respondent that he is a bona fide purchaser for value without knowledge of the agreement of sale between the respondent and his brother, who is also the first defendant in the suit for specific performance. The appellate Court in A.S.No.106 of 2005, specifically held that the respondent is entitled to a decree for specific performance and that the appellant herein is a bona fide purchaser for value without the knowledge of the suit agreement. This Court has dismissed the second appeal in S.A.(MD)No.776 of 2006, preferred by the appellant herein as against the judgment and decree in A.S.No.106 of 2005, decreeing the suit filed by the first respondent herein as against his brother for specific performance in O.S.No.527 of 2003. Since the second appeal in A.S.(MD)No.776 of 2006 is dismissed and the decree for specific performance, obtained by the plaintiff / first defendant as against the brother, namely, the vendor of the appellant is confirmed, the appellant is not entitled to injunction and the suit filed by the appellant in O.S.No.318 of 2005 is not maintainable and hence, the findings of the appellate Court in A.S.No.141 of 2011 is dismissing the suit in O.S.No.318 of 2005 is also confirmed. As a result, this second appeal in S.A.(MD)No.162 of 2005 is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
To
1.I Additional Sub-Court, Tirunelveli
2.The Principal District Court, Tirunelveli
3.The Principal Subordinate Judge, Tirunelveli,
4.the I Additional District Munsif, Tirunelveli.
5.The Section Officer, Vernacular Records, Madurai Bench of Madras High Court, Madurai.
.