Madras High Court
Vallithai vs Arulraj on 16 May, 2007
Author: V.Dhanapalan
Bench: V.Dhanapalan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 16/05/2007 CORAM THE HONOURABLE MR.JUSTICE V.DHANAPALAN S.A.No.690 OF 2006 1. Vallithai 2. M.Vijaya 3. S.Ayyappan 4. S.Murugan 5. S.Selvam ... Appellants vs. Arulraj ... Respondent Second Appeal filed under Section 100 C.P.C. against the judgment and decree, dated 26.03.2003 made in A.S.No.88 of 2002 on the file of the Ist Additional District Court, Tirunelveli reversing the judgment and decree dated 23.07.2001 made in O.S.No.311 of 1998 on the file of the Additional Sub Court, Tenkasi. !For Appellants ... Mr.R.S.Ramanathan ^For Respondent ... Mr.T.S.R.Venkataramana :JUDGMENT
With the consent of the Counsel on either side and upon completion of pleadings and perusal of documents filed in the Typed Set of papers, the Second Appeal is taken up for final disposal.
2. The legal representatives of the deceased defendant, Sankaralinga Nadar are the appellants herein. Aggrieved by the judgment and decree made in A.S.No.88 of 2002 on the file of the Ist Additional District Court, Tirunelveli reversing the judgment and decree dated 23.07.2001 made in O.S.No.311 of 1998 on the file of the Additional Sub Court, Tenkasi, they have preferred this appeal.
3. The plaintiff, Arulraj is the respondent herein. According to the plaintiff, the defendant, Sankaralinga Nadar agreed to sell the plaint schedule property to the plaintiff as per the registered Sale Agreement, dated 18.11.1996 for a sum of Rs.35,000/-. The plaintiff paid a sum of Rs.30,000/- as advance sale consideration. In the Sale Agreement, it was stated that the plaintiff shall pay the balance sale consideration of Rs.5,000/- to the defendant within a period of two years from the date of agreement.
4. The plaintiff sent a legal notice, dated 27.10.1997 to the defendant, that he is willing and ready to pay the balance sale consideration of Rs.5,000/- at any time. The defendant sent a reply notice, dated 10.11.1997 to the plaintiff, denying the execution of sale agreement and receipt of advance. In the reply notice, the defendant stated that he only agreed to execute mortgage for Rs.35,000/- for the money payable by his son to execute a deed as security and he did not execute any agreement of sale. Thereafter, the defendant approached the plaintiff through one Ganesan and informed that his reply need not be taken seriously and that he would execute the sale deed within a period of ten months. Since the defendant did not execute the Sale Agreement within the specified time, the plaintiff filed a suit in O.S.No.311 of 1998 on 09.11.1998. The defendant in his written statement denied the averments made in the plaint.
5. The plaintiff examined himself as P.W.1 and marked six documents on his side. The defendant examined himself as D.W.1 and also examined two witnesses and marked one document on his behalf.
6. The Trial Court after examination of the witnesses and on consideration of the facts and circumstances of the case held that the Sale Agreement was not proved for the reasons that the plaintiff, being a Government Servant applied for permission only on 06.07.1999 (i.e.) after filing the suit and got the permission only on 04.11.1999, whereas, the plaintiff sent the legal notice to the defendant on 27.10.1997, that he is willing to the pay the balance sale consideration, on which date he did not get permission from the Government. Though, it is stated that the defendant sent word through Ganesan informing that he would execute the Sale Deed within 10 months, the said Ganesan was not examined. The Trial Court, therefore, dismissed the suit on the ground that the plaintiff failed to prove the Sale Agreement and he was not ready to get the Sale Deed executed, however, directed the defendant to pay Rs.30,000/- to the plaintiff, since the defendant has stated in his reply that he is bound to pay the said sum to the plaintiff.
7. The aggrieved plaintiff went on appeal before the I Additional District Court, Tirunelveli in A.S.No.88 of 2002. The First Appellate Court held that the defendant did not prove that the deed was executed as security for the money payable by his son and he has also failed to examine the scribe and witnesses, who attested the sale agreement. The First Appellate Court also took into consideration the fact that the defendant did not take steps either to cancel the agreement of sale or to give a police complaint that the document was obtained by coercion. The First Appellate Court also held that the suit was filed within three years from the date of the Sale Agreement and it cannot be dismissed on the ground that the permission was obtained belatedly and hence allowed the appeal.
8. Mr.R.S. Ramanathan, learned Counsel appearing for the appellants contended that the lower appellate court has failed to note that mere registration of Ex.A1-Sale Agreement will not prove the circumstances under which Ex.A1 was executed. He has further contended that the lower appellate court has failed to note that provision (1) to Section 92 of Evidence Act enables the defendants to prove the fact to invalidate the Sale Agreement. According to him, the reversal of the well considered judgment of the Trial Court by the First Appellate Court is unsustainable in law and hence prayed for setting aside the judgment of the Lower Appellate Court. To substantiate his case, learned Counsel has relied on the following judgments :
(i) The Apex Court in 1982 (1) SCC 4 in the case of Gangabai vs. Chhabubai has held as follows:
"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."
(ii) In 1993 (2) L.W. 84 in the case of G.Chelliah Nadar (died) and 4 others vs. Periasami Nadar and 3 others, this Court has held as follows:
"12. In Ramasamy vs. Venkatachalam (1976 (1) MLJ 243) Ismail,J. has refused specific performance on the ground that the plaintiff had filed the suit making false allegations. He held that the falsity of the case directly impugned on the essential ingredients and elements necessary for claiming the relief. The falsity of the case put forward by the plaintiff disentitled him from obtaining the discretionary relief of specific performance of agreement. In Vyapuri vs. Vijayan (1978 TLNJ 62) the Court found that a sum of Rs.11,000/- was not paid as advance as contended by the plaintiff and that what was paid was only a sum of Rs.1,000/-. The Division Bench comprising of Ismail and Nainar Sundaram,JJ pointed out that the remedy of specific performance is an equitable remedy and is in the discretion of the court, which discretion has to be exercised according to recognised principles of law and not arbitrarily. The plaintiff who came to the court with a false case in material ingredients necessary for the grant of relief of specific performance will not be entitled to the equitable relief at all."
(iii) This Court, in 1996 (1) L.W. 785 in the case of Lakshmiammal and another vs. S.Sengamalai, has held as follows:
"5. According to the plaintiff, this amount of Rs.35,000/- was adjusted towards the sale consideration in the agreement executed by the defendants. The defendants 1 and 2 have contended in their written statement that by coercion and undue influence and threat the plaintiff has got the agreement signed by them. D.W.1 in his evidence has stated that himself and his wife were invited to the house of the scribe by the plaintiff and accordingly they went there and they were compelled and threatened to sign the agreement, for which they were not agreeable. He has also stated that when he offered to execute a promissory note the plaintiff did not agree for the same, and insisted upon the defendants to sign in the suit agreement which has already been kept executed. The version of the defendants that they have signed the agreement under threat and coercion is not acceptable since the defendants have not taken any efforts to cancel the same or given any police complaint against the plaintiff for obtaining a document under threat and coercion. Therefore, I am of the opinion that the version of the defendant that under threat and coercion they have executed the document under Exhibit A-1 cannot be accepted. Whether the agreement is enforceable even if it is one executed voluntarily by the defendants is the only question that has tobe considered by us. ... P.W.1 in cross-examination has admitted that the defendants have not received the said amount from him in cash, but it is the amount payable by the defendants towards the purchase of javuli. This amount of Rs.3,500/- also is only the amount which has been adjusted between the plaintiff and the defendants as seen from the evidence of P.W.1. But the document reads, as if the consideration was paid in cash. That the plaintiff has not come to Court telling the truth is evidenced from the evidence of P.W.1 himself. The relief sought for by the plaintiff is specific performance for agreement of sale which is an equitable remedy. In order to get the same, the plaintiff should come to Court with clean hands. The relief being an equitable relief, it is in the discretion of the Court in the light of the facts and circumstances of the case either to refuse or grant the relief of specific performance. At the same time, it should not be lost sight of that the discretion to be exercised by the Court should not be arbitrary but based on judicial principles."
(iv) The Supreme Court in 1996 (II) CTC 158 in the case of His Holiness Acharya Swami Ganesh Dassji vs. Shri Sita Ram Thapar, has held as hereunder:
"2. There is distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.02.1975. The draft sale deed wasnot returned after being duly approved by the petitioner. The factum of readiness and willingness to perform plaintiff's 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. The facts of this case would amply demonstrate that the petitions/plaintiff was not ready nor capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bite for the time which disentitles him as time is the essence of the contract."
(v) In 1997 (II) CTC 417 in the case of Amirtham vs. Subbian and 3 others, this Court has held as follows :
"10. As stated earlier, under the agreement, it is for the plaintiff to pay the balance amount within four months from the date of the agreement, to peform her part of the contract. Even according to Forms 47 and 48 of the Civil Procedure Code, the plaintiff has to state in the plaint that the plaintiff has pleaded to the defendant specifically to perform his part of the contract, as per the agreement. But the plaintiff has not done so."
13. The factum of readiness and willingness to perform the plaintiff's part of the contract has to be judged with reference to the conduct of the parties and attendant circumstances. The facts narrated above will clearly prove that the plaintiff was not ready and willing to perform her part of the contract and that she has not made any demand with the first defendant during the currently period of the said four months to perform her part of the contract. Moreover the plaintiff has come forward with false facts as if she had made a demand during the currency period of the four months, to the first defendant to perform her part of the contract. The Apex Court in the decision reported in Lourdu Mari David vs. Louis Chinnaya Arogiaswamy, AIR 1996 S.C. 2814 while dealing with the equitable relief of decree for specific performance has held as follows:
"It is settled law that the party who seeks to avail of the equitable jurisdiction of a Court and specific performance being equitable relief, must come to the court with clean hands. In other words the party who makes false allegations does not come with clean hands and is not entitled to the equitable relief."
(vi) In 1999 (I) CTC 409 in the case of V.S.Palanichamy Chettiar Firm vs. C.Alagappan, the Supreme Court of India has held as follows:
"16. The agreement of sale was entered into as far back on February 16, 1980, about 19 years ago. No explanation is forthcoming as to why the balance amount of consideration could not be deposited within time granted by the Court and why no application was made under Section 28 of the Act seeking extension of time of this period. Under Article 54 of the Limitation Act, 3 years period is prescribed for filing the suit for specific performance of contract of sale from the date of the agreement or when the cause of action arises. Merely because a suit is filed within the prescribed period of limitation does not absolve the vendee-plaintiff from showing as to whether he was ready and willing to perform his part of agreement and if there was non-performance was that on account of any obstacle put by the vendor or otherwise. Provisions to grant specific performance of an agreement are quite stringent. Equitable consideration come in to play. Court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale. That being the position of law for filing the suit for specific performance, can the court as a matter of course allow extension of time for making payment of balance amount of consideration in terms of a decree after five years of passing of the decree by the Trial Court and three years of its confirmation by the appellate Court? It is not the case of the respondent-decree holder that on account of any fault on the part of the vendor-judgment debtor, the amount could not be deposited as per the decree. That being the position, if now time is granted, that would be going beyond the period of limitation prescribed for filing of the suit for specific performance of the agreement though this provision may not be strictly applicable. It is neverthless an important circumstance to be considered by the Court. That apart, no explanation whatsoever is coming from the decree-holder-respondents as to whey they did not pay the balance amount of consideration as per the decree except what the High Court itself thought fit to comment which is certainly not borne out from the record. Equity demands that discretion be not exercised in favour of the decree holder-respondents and no extention of time be granted to them to comply with the decree."
(vii) This Court in 1998 (I) CTC 186 in the case of Vasantha and others vs. M.Senguttuvan, has held as hereunder :
"15. In Gomathinayagam Pillai and others vs. Palaniswami Nadar, AIR 1967 (II) SCWR 147, the Supreme Court held that in a suit for specific performance, plaintiff must prove eadiness and willingness. The relevant portion of the said decision reads thus:
"The respondent has claimed a decree for specific performance and it is for him to establish that he was, since the date of the contract, continuously, ready and willing to perform his part of the contract. If he fails to do so, his claim for specific performance must fail. As observed by the Judicial Committee of the Privy Council in Ardeshir Mama vs. Flora Season". In a suit for specific performance, on the other hand, he treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove a continuous readiness and willingness from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of the suit. The respondent must in a suit for specific performance of an agreement plead and prove that he was ready and willing to perform his part of the contract continuously between the date of the contract and the date of hearing of the suit."
Even if for single day, plaintiff - agreement holder is not ready to take the sale deed, the equitable remedy should not be granted. Readiness and willingness must be there continously from the date of agreement upto the date of hearing. In this case, the concurrent finding is that the appellant was not ready to take the sale deed and that is proved by Ex.A3."
(viii) This Court in 2000 (4) CTC 278 in the case of Indravathi vs. Kamala has held as follows:
"36. With regard to the delay in filing of the suit, the conduct of the respondent leaves much to be desired. It is stated in Ex.A2, there is an apprehension on the part of the respondent that the appellant might be avoiding the transaction this is supported by the evidence of P.W.1 which is extracted above that the learned Counsel, Mr.Nandalal said that the owner is not willing to sell the property. Not only did the respondent not pay the instalments on the stipulated dates, but even after coming to know that the appellant might resile from the agreement waits for two years thereafter and has filed the suit on 08.11.1982. No person who is genuinely interested in purchasing a property and is ready with the funds will procrastinate the matter this long. There is no reason given as to why there should be a delay of two years and ten months from the date of the suit notice in filing the suit. A person, who seeks an equitable remedy ought to demonstrate conduct which is fair and above board. As held by the Hon'ble Court in Periabillai vs. Somayan, 1993 (2) MLJ 272 and The Kancheepuram Kamakshi Amman Slik Handloom Weavers Co-operative Production and Sale Society Ltd. vs. Yamuna Bai, 1993 (1) MLJ 618, this delay itself is sufficient to deny the respondent the relief of specific performance.
(ix) In 2001 (3) CTC 86 in the case of Bhagwandas Fatechand Daswani and 4 others vs. H.P.A.International, rep. By its Managing Partner H.A.Md.Aleemuddin and 2 others, this Court has held as hereunder:
"59. Learned Counsel for the plaintiff/respondent laid great emphasison the misconduct on the part of the appellant in the course of the trial, in denying his identity as Bob Daswani, and his conduct in proceeding with the construction despite the interim injunction, and submitted that the lack of candour and dishonesty in his pleadings and affidavits, disentitles him to any relief in equity, as one who plays foul with equity cannot use it as a shield. This submission though relevant to the grant or withholding of discretionary relief, where the plaintiff is otherwise not disentitled in law or equity to such relief, cannot be granted as relevant for the purpose of deciding the existence or otherwise of a legally enforceable contract at the time the trial court granted the decree for specific performance. What does not exist in the eye of law cannot be deemed to exist, because of the acts of omission or commission of the defendant during the course of the trial. If the plaintiff having regard to it's own conduct is not entitled to the relief, the misconduct of the defendants cannot result in plaintiff becoming entitled to such relief."
(x) The Supreme Court in 2003 (9) SCC 478 in the case of Manohar Lal alias Manohar Singh vs. Maya, has held as follows:
"2. A suit for specific performance of an agreement to sell an immovable property, which is an agricultural land, was directed to be decreed by the trial court and the first appellate court. In second appeal preferred by the defendant, the High Court has upheld the agreement but while dealing with discretion to decree specifc performance the High Court has held that is was not a fit case where the Court could have exercised discretion in favour of decreeing the specific performance and rather it was a fit case where the Court ought to have directed only refund of consideration. For the purpose of arriving at such a finding, the High Court has noted during the course of its judgment:
(xi) In 2005 (7) SCC 60 in the case of Rajeshwari vs. Puran Indoria, the Supreme Court has held as follows:
"5. Normally, a suit for specifc performance of an agreement for sale of immovable property involves the question whether the plaintiff was ready and willing to perform his part of the contract in terms of Section 16 of the Specific Relief Act, whether it was a case for exercise of discretion by the court to decree specific performance in terms of Section 20 of the Specific Relief Act and whether there were laches on the part of the plaintiff in approaching the court to enforce specific performance of the contract. In some cases, a question of limitation may also arise in the context of Article 54 of the Limitation Act on the terms of the agreement for sale.
9. Mr.T.S.R.Venkataraman, learned Counsel appearing for the respondent/plaintiff submitted that the Lower Appellate Court has rightly held against the defendant on the ground that he did not prove that the deed was executed as security for the money payable by his son. He contended that the defendant gave contra evidence about the contents of the Sale Agreement and hence prayed for dismissal of the present appeal. To defend his case, learned Counsel relied on the following judgments :
(i) In AIR 1996 SC 2095 in the case of His Holiness Acharya Swami Ganesh Dassji vs. Shri Sita Ram Thapar, the Supreme Court has held as follows:
"2. There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised. There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27.02.1975. The draft sale deed was not returned after being duly approved by the petitioner. The factum of readiness and willing to perform plaintiff's part of the contract is to be adjudged with reference to the conduct of the part 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. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bite for the time which disentitles him as time is the essence of the contract."
(ii) In AIR 1997 SC 954 in the cases of M/s.Fabril Gasosa vs. Labour Commissioner and others with Agencia E.Sequeira vs. Labour Commissioner and others, the Supreme Court has held as follows :
"Section 92 of the Evidence Act, 1872 also lays down that when the terms of any contract, grant or settlement, as are required by law to be reduced to the form of a document, have been proved as per the form of a document, have been proved as per the provisions of Section 91 of the Evidence Act, no evidence of any oral agreement or settlement shall be admitted as between the parties to any such instrument of their representatives in interest for the purpose of contradicting, varying, adding to or subtracting from its terms."
(iii) As regards "Readiness and Willingness to perform" contract, the Supreme Court in AIR 1999 SC 3029 in the case of Syed Dastagir vs. T.R.Gopalakrishna Setty has held as follows :
"10. ....It is true in the pleading the specific word "ready and willingness to perform" in this nomenclature is not there but can aforesaid plea, could be read that plaintiff was not ready and willing to perform his part of the obligation? In other words, can it be said he has not pleaded that he is "ready and willing" to perform his part? Courts cannot draw any inference in abstract or to give such hyper-technical interpretation to defeat a claim of specific performance which defeats the very objective for which the said Act was enacted. The Section makes it obligatory to a plaintiff seeking enforcement of specific performance, that he must not only come with clean hands but there should be a plea that he has performed or has been and is ready and willing to perform his part of the obligation. Unless this is there, Section 16(c) creates a bar to the grant of this discretionary relief. As we have said for this it is not necessary to plea by any specific words, if through any words it reveals the readiness and willingness of the plaintiff to perform his part of obligation, then it cannot be said there is non-compliance of the said Section. "
(iv) As regards Specific Performance, in AIR 2000 SC 2408 in the case of Motilal Jain vs. Smt.Ramdasi Devi and others, the Supreme Court has held as follows:
"6. The first ground which the High Court took note of is the delay in filing the suit. It may be apt to bear in mind the following aspects of delay which are relevant in a case of specifc performance of contract for sale of immovable property: (i) Delay running beyond the period prescribed under the Limitation Act; (ii) Delay in cases where though the suit is within the period of limitation, yet : (a) due to delay the third parties have acquired rights in the subject-matter of suit; (b) in the facts and circumstances of the case, delay may give rise to plea of waiver or otherwise it will be inequitable to grant a discretionary relief. Here none of the above mentioned aspects applies. That apart faculty also, the High Court proceeded on an incorrect assumption with regard to cause of action. Ext.2 was executed on February 20, 1977 and under it the sale deed was to be executed on or before July 19, 1977. The last notice was issued on November 26, 1978 and from that date the suit was filed only after nine months and not after more than a year as noted by the High Court. Therefore, on the facts of this case the ground of delay cannot be invoked to deny relief to the plaintiff."
7. At the outset it must be borne in mind that the agreement between the parties was a written agreement and therefore the parties are bound by the terms and conditions of the agreement. Once a contract is reduced to writing, by operation of Section 91 of the Evidence Act it is not open to any of the parties to seek to prove the terms of the contract with reference to some oral or other documentary evidence to find out the intention of the parties. Under Section 92 of the Evidence Act, where the written instrument appears to the contract are not entitled to lead by oral evidence to ascertain the terms of the contract. It is only when when the written contract does not contain the whole of the agreement between the parties and there is any ambiguity then oral evidence is permissible to prove the other conditions which also must not be inconsistent with the written contract."
10. Heard both sides and I have given careful consideration to the arguments of the learned Counsel on either side and the citations relied on by them in support of their arguments.
11. The following substantial questions of law were raised by the Counsel for the appellant during the course of arguments :
(i) Whether the Lower Appellate Court is right in decreeing the suit when the respondent was not ready and willing to perform his part of the contract ?
(ii) Whether the Lower Appellate Court is right in granting the discretionary relief of specific performance when the respondent has not come with clean hands ?
12. It is the case of the plaintiff that the deceased defendant, Sankaralinga Nadar, agreed to sell the suit property to him as per the registered Sale Deed dated 18.11.1996 for a sum of Rs.35,000/-. It is stated that the plaintiff paid a sum of Rs.30,000/- as advance sale consideration to the defendant and the balance sale consideration of Rs.5,000/- has to be paid to him within a period of two years from the date of agreement.
13. It is seen in the Written Statement filed by the defendant Sankaralinga Nadar, that Ramasamy alias Murugan, son of the defendant, was working under the plaintiff. Since he misappropriated the chit money, the deceased defendant, Sankaralinga Nadar, mortgaged the suit property to the plaintiff to safeguard his son. According to the defendant, when the value of the suit property at the time of mortgage was Rs.2,00,000/-, there is no necessity for him to sell the suit property for a consideration of Rs.35,000/-.
14. The Trial Court, on evaluation of the material evidence and the facts and circumstances of the case, dismissed the suit on the ground that the Sale Agreement was not proved, however, directed the defendant to pay Rs.30,000/- to the plaintiff, since the defendant has stated in his reply that he is bound to pay the said sum to the plaintiff towards mortgage amount. But, the Lower Appellate Court has allowed the appeal in favour of the plaintiff on the ground that the suit was filed within a period of three years from the date of the Sale Agreement and it cannot be dismissed on the ground that permission was obtained belatedly.
15. In paragraphs 5 and 7 of the judgment, the Trial Court has held as follows:
"5. gp.th.rh.1 jd; rhl;rpaj;jpy;> jdf;F thjpiaj; bjhpahJ vd;Wk;> jdJ kfd; uhkhrhkp vd;w KUfd; mthplk; ntiy ghh;j;jjhy; thjpiaj; bjhpa[bkd;Wk;> thjp mUs;uh$; elj;jpa rPl;Lf;F jdJ igad; bjhif gphpj;J thjpaplk; xg;gilf;Fk; bjhHpy; bra;J te;jhbud;Wk;> jhd; gpujpthjp Twpa[s;sJ nghy; jdJ jhth brhj;ij thjpapd; bgaUf;F fpiua xg;ge;jk; vGjpf; bfhLf;f ntz;:oa mtrpakpy;iy vd;Wk;> thjpapd; rPl;Lg; gzj;ij jdJ igad; ifahly; bra;Jtpl;ljhft[k;> jdf;F vGjg;gof;fj; bjhpahJ vd;gjhy; ifbaGj;J thq;fpa gj;jpuj;jpy; vd;d vGjpapUe;jd vd;W bjhpahJ vd;Wk;> jd;dplk; jd; kfd; ifahly; bra;j gzj;jpw;fhf xU ifbaGj;J nghLq;fs; vd;W nfl;ljhft[k;> thjp brhy;tJnghy; fpiua xg;ge;jk; vJt[k; bra;atpy;iybad;Wk;> mjdhy; ve;j ifbaGj;Jk; bra;atpy;iybad;Wk;> jhth brhj;J Ruz;ilapy; cs;sJ vd;Wk;> jhth rkaj;jpy; jhth brhj;jpd; kjpg;g[ U.2>00>000/- bgWk; vd;Wk; thjp brhy;tJnghy; jhd; gzk; vJt[k; thq;ftpy;iybad;Wk;> xg;ge;jk; epWj;jj; bjhifahf U.5>000/- bfhLf;f jhd; flikg;gl;ltd; my;y vd;Wk;> th.rh.M.1 cz;ik Mtzk; ,y;iybad;Wk;> tHf;if js;Sgo bra;a ntz;Lbkd;Wk; Twfpwhh;.
7. ,t;tHf;fpy; thjp gpujpthjpaplk; 18.11.1996y; gpujpthjp tPl;il thq;f U.35>000/- fpiuak; ngrp Kd; gzk; U.30>000/- bfhLj;J gjpt[ xg;ge;jk; bra;Jbfhz;ljhft[k;> kPjKs;s U.5>000/- bjhifia 2 tUlj;jpw;Fs; brYj;jp gjpt[ bra;J bfhs;tjhft[k;> thjp jug;gpy; tHf;Fiuf;fg;gl;Ls;sJ. gpujpthjp jug;gpy; jhk; mt;thW fpiua xg;ge;jk; vJt[k; bra;atpy;iybad;Wk;> khwhf jd; kfd; thjpaplk; rPl;L nrh;g;gJ rk;ge;jkhf gzk; ifahly; bra;jhh;. nkw;go ifahly; bra;j gzj;ij gpujpthjpahy; clnd fl;lKoahj N{H;epiyapy; jkJ tPl;il mlkhdk; nghl;ljhf epidj;J th.rh.M.1 xg;ge;je;j;jpy; ifbaGj;jpl;ljhft[k;> jkf;F gpuhJ jgrpy; brhj;ij U.35>000/- j;jpw;F tp;wf ntz;oa mtrpak; ,y;iy. ... "
16. A careful reading of the above evidence would clearly reveal that the defendant had not executed any Sale Deed in respect of the suit property. It is seen that the defendant had only mortgaged the suit property for the misappropriation of the chit money by his son and that he had no necessity to sell the property to the plaintiff for a consideration of Rs.35,000/-, when the value of the suit property as stated by the defendant is Rs.2,00,000/-. Moreover, the Sale Deed has not been proved. This aspect of the evidence has been properly appreciated and findings have been rendered accordingly by the Trial Court.
17. It is the plaintiff's case that the defendant agreed to sell the property to him for a sum of Rs.35,000/- and he had paid a sum of Rs.30,000/- to the defendant as advance sale consideration and he had promised to pay the balance amount of Rs.5,000/- to the defendant within a period of two years. The point which has to be noted here is that when the plaintiff was in a position to pay Rs.30,000/- towards advance sale consideration as a single payment to the defendant, there could have been no necessity for the plaintiff to wait for two years to pay the balance sale consideration of Rs.5,000/- to the defendant.
18. From an analysis of the entire facts of the case, it can be seen that mere registration of Ex.A.1, sale agreement will not prove the circumstances under which it was executed and also whether this evidence is in conformity with the provision under Section 92 of the Evidence Act. An important aspect of this case is that the plaintiff, being a Government servant, applied for permission only on 06.07.1999 after filing the suit and got the permission only on 04.11.1999 whereas he has sent the legal notice to the defendant on 27.10.1997 that he is willing to pay the balance sale consideration on which date, he did not get permission from the Government. Accordingly, the Trial Court dismissed the suit on the ground that the plaintiff failed to prove the sale agreement. The Trial Court, however, directed the defendant to pay Rs.30,000/- to the plaintiff, since the defendant has stated in his reply that he is bound to pay the said sum to the plaintiff. Therefore, looked at any angle, the findings of the Trial Court are in conformity with the legal proposition considering the discretionary relief of suit for specific performance when the respondent has not come with clean hands. In that view, the decision of the lower appellate court is not sustainable and the substantial questions of law are answered accordingly.
19. In view of the above discussion and considering the above facts and the evidence on record, it is clear that the Sale Deed said to have been executed by the deceased defendant is not proved and that the deceased defendant had only mortgaged the suit property to the plaintiff and he had not executed any Sale Deed in respect of it and the Trial Court has rightly allowed the suit in favour of the plaintiff.
20. Further, the Trial Court, in its judgment, has directed the defendant to pay a sum of Rs.30,000/- to the plaintiff and the relevant portion reads as under:
",r;NH;epiyapy;> thjp nfl;Fk; Vw;Wjy; Mw;Wk; ghpfhuk; fpilf;fj;jf;fjy;y vd;Wk;> thjpf;F gpujpthjp mth; kfd; ifahly; bra;j tifapy; U:.30>000/- ju ntz;o ,Ug;gjhf mjw;Fhpa tl;oa[d; jUtjhf gpujpthjp jd; nehl;Orpy; th.rh.M.6y; TwpapUg;gjhy; xU tUlj;jpw;Fs; thjpf;F U:.30>000/- 9% tl;oa[ld; jpUg;gpj; jut[k; cj;jutplg;gLfpwJ."
Since the above portion has not been incorporated in the decree of the Trial Court, it is made clear that the plaintiff is entitled to receive a sum of Rs.30,000/- from the defendant with Interest @ 9% p.a. from the date of the plaint.
In fine, the finding of the Lower Appellate Court is reversed and the decision rendered by the Trial Court is confirmed. The Second Appeal is allowed. No costs. Consequently, connected M.P.No.1 of 2006 is closed.
abe To
1. The 1st Additional District Court, Tirunelveli
2. The Additional Sub Court, Tenkasi
3. The Section Officer, V.R.Section, High Court of Madras