Madras High Court
Syed Ibrahim (Died) vs R.M.Sp.Natarajan Chettiar on 27 June, 2012
A.S.(MD)No.325 of 2008
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON: 07.01.2019
DELIVERED ON : 16.04.2019
CORAM
THE HONOURABLE MRS. JUSTICE R. THARANI
A.S.(MD)No.325 of 2008
and
M.P.(MD)No.1 of 2009
1.Syed Ibrahim (Died)
2.S.Feroes Begam
3.Aleema Banu
4.Minor P.Athik
5.Minor P.Adhima
6.S.Mohammed Thaiyoub
7.Mohammed Najumudeen
8.Rahamatvnisha .. Appellants
nd
(2 appellant recorded as legal heir and appellants 6 to 8
are brought on record as legal heirs of the deceased
1st appellant vide order dated 27.06.2012 and made in
M.P.(MD)No.1 of 2016 in A.S.(MD)No.325 of 2008 by MSNJ)
(Minors 4 and 5 represented by guardian and uncle, 2nd appellant)
Vs.
1.R.M.SP.Natarajan Chettiar
2.V.Kasi Vishvanathan
3.S.Natarajan
4.C.Andiyappan
5.M.Annamalai Chettiar
6.A.Chandransekaran
7.Stella Jenni
8.T.Anbalagan
9. Kala
10.Saravanan
11.R.M.Kalaiselvi
12.K.Baskar
13.Zakir Hussain
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A.S.(MD)No.325 of 2008
14.Damayanthi
15.Mythili
16.M.R.Srinivasan
17.J.Ravichandran
18.K.Kalarani
19.M.Palaniappan .. Respondents
(R6 to R19 are impleaded as per order
dated 16.11.2018 in C.M.P.(MD)No.5631 of 2017 in
A.S.(MD)No.325 of 2008 by RSMJ)
Prayer :Appeal Suit is filed under Section 96 of Civil Procedure Code, to set aside the
Judgment and decree dated 08.06.2007 made in O.S.No.7 of 2004 on the file of the
Principal District Judge, Pudukottai.
For Appellants : Mr.N.Krishnaveni, Senior Counsel
For M.P.Thiagarajan
For Respondent No.1 : Mr.R.Balachandran
For Respondents 2 to 5 : Mr.T.V.Sivakumar
For Respondents 6 to 19 : Mr.N.Bala Krishnan
JUDGMENT
Heard the learned counsel appearing on either side.
2.This appeal is filed against the Judgment and Decree passed in O.S.No.7 of 2004 dated 08.06.2007 on the file of the learned Principal District Judge, Pudukkottai.
3.The first appellant is the sixth defendant and the appellants 2 to 5 are impleaded in the appeal as the legal heirs of the deceased first appellant, the first respondent is the plaintiff, the respondents 2 to 5 are the defendants 1 to 4 in the suit. The respondents 6 to 19 are impleaded in the appeal as per the order dated 16.11.2018. The first respondent filed a suit in O.S.No.7 of 2004 seeking for a prayer of specific http://www.judis.nic.in 2/40 A.S.(MD)No.325 of 2008 performance against the defendants before the learned Principal District Judge, Pudukottai. The learned District Judge decreed the suit. Against which, the appellants came forward with this appeal.
4.The case of the plaintiff is that the suit properties are situated in Pudukottai Taluk, Kavinadu Melavatta gramam. The suit property belonged to the defendants 1 to 3 and the 4th defendant is the power agent of the defendants 1 to 3. The 4th defendant approached the plaintiff for the sale of the property and the plaintiff agreed for the purchase of the property and the plaintiff and the 4th defendant entered into an agreement of sale on 14.07.1996. The sale consideration was fixed as Rs. 1,25,000/- per acre. The fourth defendant received Rs.1,10,000/- as advance. The sale transaction is to be completed on or before 31.12.1996 and the fourth defendant undertake to measure the property and to fix the four boundaries and to hand over the possession without any encumbrance.
5.The plaintiff is always ready and willing to perform his part of the contract. The fourth defendant is not ready to fulfil his part of the contract. Whenever the plaintiff tried to approach the fourth defendant, the fourth defendant is not in station and it is stated that he has gone abroad. Later the plaintiff came to know that the fourth defendant planned to sell the property to third parties. When the plaintiff approached the fourth defendant during the third week of December 1996 and http://www.judis.nic.in 3/40 A.S.(MD)No.325 of 2008 requested him to execute the sale deed and to receive the balance sale consideration, the fourth defendant agreed to complete the sale transaction after measuring the suit property with the help of Village Administrative Officer.
6.Later the fourth defendant issued a legal notice dated 27.12.1996 to the plaintiff stating that since the plaintiff failed to pay the balance sale consideration of Rs.90,000/- on or before 15.09.1996, the agreement dated 14.07.1996 stood cancelled. The cancellation of the agreement by the fourth defendant is premature and unilateral whereas the parties to contract never intended to fix the date for conclusion of the contract. The time in the agreement is only an usual clause incorporated in the sale agreement and the balance sale advance could not be given to the fourth defendant since he was out of station. The non payment of balance advance amount could not disentitle the plaintiff to enforce his right of purchase. The plaintiff sent a reply notice on 31.12.1996 informing his readiness and willingness to perform his part of the contract but the fourth defendant is making arrangement to sell the property to third parties. After the filing of the suit, the plaintiff came to know that the fifth defendant has purchased the property from the defendants 1 to 3 through a registered sale deed dated 25.07.1997. Pending suit, the fifth defendant expired and his legal heirs are impleaded as the defendants 6 to 10.
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7.The brief averments in the written statement filed by the fourth defendant reads as follows:
(i)It is true that this defendant as the power agent has entered into a contract to sell the properties to the plaintiff. The rate is fixed as Rs.1,26,000/- per acre. Time is the essence of the contract. The plaintiff accepted the terms and conditions of the contract and the time limit for execution is fixed as 31.12.1996. The plaintiff had paid Rs.1,10,000/- as earnest advance and he has to pay an advance of Rs.
9,00,000/- on or before 15.09.1996. When the agreement is being typed, the plaintiff willfully omitted typing a sentence as to the payment of an advance of Rs.90,000/- within 15.09.1996. Without the consent and knowledge of the fourth defendant, the plaintiff included a clause for the survey of the suit lands. Since the suit lands are demarcated with definite extent and identification, surveying and measuring is not necessary and this term of the contract is superfluous. The plaintiff was allowed to enter into the suit property for removing the bushes in the name of survey and for cleaning operation he demanded Rs.1,500/- from this defendant.
(ii)One Samsudeen was the negotiater for this contract. When this defendant demanded Rs.2,00,000/- as advance, the plaintiff was able to pay only Rs.1,10,000/- and he promised to pay Rs.90,000/- within 15.09.1996 to the defendant in person or through Samsudeen. But in spite of repeated demands, the plaintiff has failed to pay Rs. 90,000/- within the stipulated time and the plaintiff has violated the terms of the http://www.judis.nic.in 5/40 A.S.(MD)No.325 of 2008 contract. The plaintiff evade payment, whenever the said Samsudeen approached the plaintiff for payment. Though this defendant addressed the plaintiff through telegram, lawyer notice, phone and other methods, the plaintiff has failed to make the payment. For the sole purpose of executing the sale deed pursuant to the sale contract, the defendant came to India on 14.12.1996 and this defendant approached the plaintiff to get the sale deed registered within 31.12.1996 but the plaintiff avoid meeting the defendant. The defendant issued a telegram on 24.12.1996. Then the defendant sent him a notice on 27.12.1996 requesting him to perform his part of the contract.
(iii)Though the plaintiff received the telegram, he failed to respond positively. Though this defendant was waiting before the register office from morning till evening, the plaintiff did not turn up. The plaintiff issued a reply notice on the evening on 31.12.1996 with false allegations. This defendant had to fly back to Singapore. The intention of the plaintiff is to sell away the properties without obtaining the sale deed in his name. It seems that the plaintiff cannot secure any prospective purchasers as expected and hence, he was avoiding performance of his part of the contract. Since the plaintiff violated the terms of the contract, the defendants cancelled the contract with effect from 01.01.1997. Therefore, there is no valid contract after 31.12.1996.
(iv)Though the plaintiff is aware of the negotiations between the fourth http://www.judis.nic.in 6/40 A.S.(MD)No.325 of 2008 defendant and the fifth defendant from the year 1996, he never objected to the negotiations. He only demanded his advance to be returned. This fourth defendant denied the payment, since he suffered loss by the subsequent sale with the fifth defendant for a lesser amount. The plaintiff cannot demand any right of specific performance. The cancellation of the contract by the defendants with effect from 01.11.1997 is valid. The plaintiff was never ready and willing to perform his part of the contract and the suit is to be dismissed.
8.The brief substance of the written statement filed by the fifth defendant is that the plaintiff has to prove that time is not essence of the contract. It is the duty of the plaintiff to prove that he is always ready and willing to perform his part of the contract. The plaintiff never met the fourth defendant in the third week of December 1996. From the notice of the fourth defendant, it is clear that the earlier agreement was terminated by the notice dated 27.12.1996 and the cut off date fixed for the performance of the contract is 31.12.1996. This defendant purchased the suit property through a registered sale dated 25.07.1997 for a valuable consideration. He is a bonafide purchaser for value who acted in good faith. After the purchase, this defendant incurred heavy expenditure for getting approval and changed the revenue records in his name.
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9.The brief substance of the reply statement is as follows:
Time is not the essence of the contract. It is incorrect to state that the plaintiff has paid only Rs.1,10,000/- and promised to pay an advance of Rs.90,000/-
within 15.09.1996 and this clause is termed as an “essence of contract”. It is false to state that the plaintiff while typing the terms of the contract, willfully omitted the typing of the term as to the payment of additional advance of Rs.90,000/- on 15.09.1996. It is wrong to state that without the consent and knowledge of the fourth defendant, the plaintiff included a clause in the agreement for the survey of the suit lands. A perusal of the agreement will clearly show that the fourth defendant has himself included in ink the clause relating to payment of Rs.90,000/-. While the fourth defendant could include a clause in the agreement he can delete a clause in the said agreement if he has not agreed for the survey of the suit lands. Without identifying the suit properties and fixing the same on ground with reference to boundaries, it is not possible to find out the total extent of the lands to be sold to the plaintiff. There is no clause in the agreement relating to the bearing of the expenses for removal of the thorny bushes etc, in the suit lands. Hence, there is no point in finding fault with the plaintiff for not bearing the costs for such removal of bushes. It is the duty of the vendor to clear the lands and measure the same at his own expenses before executing the sale deed. The plaintiff never avoid meeting the fourth defendant. It is false to state that the plaintiff was not at all ready to perform his part of the contract. The allegations that the fourth defendant tried to contact the plaintiff several times through http://www.judis.nic.in 8/40 A.S.(MD)No.325 of 2008 phone and through Samsudeen and that the plaintiff avoided meeting the fourth defendant is absolutely false. The plaintiff has responded to all the telegrams and notice of the fourth defendant then and there, expressing his willingess to get the sale deed executed as per the terms of the agreement. The fifth defendant purchased the property for a very lesser amount and the fifth defendant is not a bonafide purchaser for value.
10.Based on the above said pleadings, following issues were framed by the trial Court. They are as follows:
Issues:
“1),e;j thjpf;F mtu; Nfl;Ls;s Vw;wij Mw;Wjy; gupfhuk; fpilf;ff; $bajh?
2),e;j 5k; gpujpthjp jhth fpua xg;gejk; ,Ue;jij njupahkNyNa jFe;j fpuak; nfhLj;J ey;nyz;zj;jpd; ghy;fpuak; ngw;w eguh?
3)mg;gbahdhy; thjpf;F fpilf;ff;$ba gupfhuk; vd;d?”
11.The parties went for trial based on the framing of the above said issues. On the side of the plaintiff, three witnesses were examined as P.W.1 to P.W.3 and 7 documents were marked as Exs.A1 to A7, on the side of the defendant, five witnesses were examined as D.W.1 to D.W.5 and 21 documents were marked as Exs.B1 to B21. Exs.C1 and C2 are marked as Court documents.
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12.The learned trial Judge, heard the arguments advanced on both sides and considered the pleadings and evidence in the light of the points urged in the arguments submitted on behalf of the parties. On an appreciation of evidence, the learned trial Judge answered all the issues in favour of the first respondent herein/plaintiff and decreed the suit and imposed costs on the defendants. Against the Judgement and Decree, the present appeal has been filed on various grounds set out in the memorandum of grounds of appeal.
13.In the grounds of appeal, it is stated that in Ex.A1 agreement dated 14.07.1996, it has been specifically stated that the balance advance amount of Rs. 90,000/- has to be paid on or before 15.09.1996 and on or before 31.12.1996 the entire sale consideration has to be paid and sale deed has to be executed. The plaintiff has not paid a sum of Rs.90,000/- on or before 15.09.1996 and also he has not paid the balance sale consideration on or before 31.12.1996 and the plaintiff was never ready and willing to perform his part of the contract and therefore the suit filed by him for specific perfomance of the agreement dated 14.07.1996 ought to have been dismissed. The plaintiff having come forward with the suit for specific performance ought to have proved that before 15.09.1996, he tendered the balance advance amount of Rs.90,000/- as agreed by him and having failed to do the same, the learned District Judge ought to have held that the plaintiff was not ready and willing to perform his part of contract. In the plaint, there is no mentioning about the payment to be made by the plaintiff on or http://www.judis.nic.in 10/40 A.S.(MD)No.325 of 2008 before 15.09.1996. This itself shows that the plaintiff has not come forward with the suit with clean hands and on this sole ground alone the suit filed by the plaintiff should be dismissed. The finding of the learned District Judge that the fourth defendant should prove that he was in India at the relevant period and only the plaintiff did not tender the amount which is against the settled principle of law. It is the duty of the plaintiff to prove that he was ready and willing to pay Rs.90,000/- on or before 15.09.1996 and he was also having money with him and he tendered the same to the fourth defendant and inspite of his readiness and willingess the fourth defendant did not receive the amount. The learned District Judge ered in his finding that the fourth defendant has not measured the property and therefore the plaintiff was not ready and willing to perform his part of the contract. In the sale agreement, the plaintiff after paying the sale consideration has to get the sale deed executed in his name on or before 31.12.1996 and after the receipt of the amount, the fourth defendant will measure and fix the 4 boundaries and hand over possession of the property. Therefore, a perusal of Ex.A1 agreement clearly shows that the plaintiff has to first pay the sale consideration and get the sale deed executed and therefore the fourth defendant will measure and fix the 4 boundaries. Therefore, it is incorrect to say that the fourth defendant has not performed his part of the contract by measuring the property.
14.The points that arise for consideration in the appeal are:
“1)Whether the words time is the essence of the contract is applicable for http://www.judis.nic.in 11/40 A.S.(MD)No.325 of 2008 payment of Rs.90,000/- (Rupees Ninety Thousand only) on or before 15.09.1996?
2)Whether the cancellation of agreement is valid ?
3)Whether the fifth defendant is a bonafide purchaser?
4)Whether the plaintiff is ready and willing to perform his part of the contract?
5)Whether the first respondent is entitled for the relief of specific performance?
6)Whether this appeal is to be allowed?
Issue No.1:
15.The first appellant is the sixth defendant in the suit. The appellants 2 to 5 are his legal heirs. The respondents 2 to 5 are the defendants 1 to 4 in the suit. The first respondent is the plaintiff in the suit.
16.It is stated that the fourth defendant who was the power agent of the respondents 1 to 3 executed a sale deed in favour of Natarajan Chettiyar which was marked as Ex.A1. Annamalai Chetiyar sent a telegram to Natarajan which was marked as Ex.A2. Telegram sent by Natarajan to Annamali Chetiyar was marked as Ex.A3. Telegram sent by Annamalai Chetiyar to Natarajan was marked as Ex.A4. Lawyer notice dated 27.12.1996 sent by Annamalai Chetiyar to Natarajan was marked as Ex.A5. Reply notice dated 31.12.1996 sent by Natarajan to Annamalai Chetiyar was marked as Ex.A6. The plaintiff gave a paper publication on 20.09.1997 marked as Ex.A7. http://www.judis.nic.in 12/40 A.S.(MD)No.325 of 2008
17.The postal acknowledgement card dated 01.01.1997 was marked as Ex.B1. The fourth defendant who was the power agent of the respondents 1 to 3 executed a sale deed in favour of S.Basheer Ahamed which was marked as Ex.B2. Patta book number 180 was issued to S.Basheer Ahamed marked as Ex.B3. A copy of an agreement entered between S.Basheer Ahamed and M.Syed Ibrahim was marked as Ex.B4. Copies of inam settlement deed dated 30.03.2000 and 29.04.2000 were marked as Exs.B5 and B6. A photographic copy of inam settlement deed dated 30.03.2000 was marked as Ex.B7. Xerox copy of power deed dated 10.06.1992 executed by the defendants 1 to 3 in favour of Annamalai Chettiyar was marked as Ex.B8. A sale deed executed by R.Balasubramanian in favour of Siva.Nagarajan and Veera Kasi Viswanathan was marked as Ex.B9. Ayiponnu ammal executed a sale deed dated 13.03.1986 in favour of S.Andiyappan which was marked as Ex.B10. G.Radhakrishnan executed sale deeds dated 30.05.1986, 12.08.1986, 10.12.1986 in favour of S.Andiyappan were marked as Exs.B11 to B13. The power agent of the defendants 1 to 3 executed a sale deed in favour of S.Basheer Ahamed was marked as Ex.B14. A copy of the sale agreement dated 17.02.2003 executed by M.Syed Ibrahim in favour of K.Kaliyamurthy was marked as Ex.B15. M.Syed Ibrahim executed a sale deed dated 17.02.2003 for A.Vakithabanu was marked as Ex.B16. A copy of sale deed executed by M.Syed Ibrahim in favour of A.Jaya was marked as Ex.B17. M.Syed Ibrahim executed a sale deed in favour of M.Annamalai was marked as Ex.B18. Notice dated 31.12.1996 sent by Annamalai Chettiyar to Natarajan was marked as Ex.B19. A copy of sale deed dated 03.03.1999 executed by http://www.judis.nic.in 13/40 A.S.(MD)No.325 of 2008 Ramachandran in favour of M.Syed Ibrahim, M.Jamal Muhamed and M.Muhammed Abdul Kadar was marked as Ex.B20. A certificate issued by Pudukottai Central Bank of India Branch was marked as Ex.B21.
18.The case of the plaintiff is that the fourth defendant as the power agent of the defendants 1 to 3 had entered into an agreement with the plaintiff for the sale of the suit property at the rate of Rs.1,20,000/- per acre and had entered into an agreement on 14.07.1996. The agreement was marked as Ex.A1. This fact was admitted by the fourth defendant in his written statement. The payment of Rs.1,10,000/- as advance was also admitted by both the parties.
19.The contention of the appellants is that initially a sum of Rs.1,10,000/- was paid as earnest advance and the plaintiff had to pay an advance of Rs.90,000/- on or before 15.09.1996 and time was the essence of contract for the payment of Rs. 90,000/-. It is stated that the plaintiff ulterior motive had failed to incorporate this condition in the sale agreement as he typed the agreement. It is stated that in the agreement, the time for execution of the sale deed is fixed and the wordings that “the time is the essence of contract” include the time for the payment of further advance also.
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20.The contention of the first respondent is that the time was not the essence of the contract for payment of additional advance amount. The contention of the first respondent is that the first respondent tried to make payment but whenever the first respondent tried to approach him for making payment, the fourth defendant was not available in station. On the side of the appellants, it is stated that as time was the essence of the contract and that time for further advance was also the essence of the contract.
21.The learned counsel appearing for the appellants would rely upon the Judgment passed by the Hon'ble Supreme Court in the case of I.S.Sikandar(Dead) by lrs. v. K.Subramani and Others reported in (2013) 15 Supreme Court Cases 27, which reads as follows:
“In absence of plaintiff's prayer for seeking declaratory relief that termination of agreement was bad in law, held, suit for specific performance not maintainable.
Plaintiff's failure to perform his part of essential terms of agreement within stipulated time”
22.The contention of the plaintiff is that the plaintiff was ready to pay the balance advance amount and since the fourth defendant was out of station, he could not pay the same. In the written statement of the fourth defendant in paragraph no.4, the fourth defendant has admitted that he returned back to India only on 14.12.1996. http://www.judis.nic.in 15/40 A.S.(MD)No.325 of 2008 The reasons stated by the plaintiff for non compliance of this condition is acceptable.
23.A perusal of Ex.A1 reveals that a term “time is the essence of the contract” is stated in the agreement. 31.12.1996 is fixed as the date for execution of the sale deed. The date for payment of further advance of Rs.90,000/- is fixed as 15.09.1996 and this clause is written below the other clauses in the agreement and there is no wordings as “the time is the essence of contract for payment of further advance”. As per Ex.A1, the date of execution of the sale fixed by the parties can be taken as the essence of the contract and not the date for payment of further advance. The date fixed for payment of further advance cannot be presumed as the date to be treated as the essence of contract. Hence, it is decided that the words, time is the essence of the contract is not applicable for the payment of Rs.90,000/- on or before 15.09.1996.
Issue No.2 :
24.On the side of the appellants, it is stated that the sale agreement in Ex.A1 was rightly cancelled by the fourth defendant and the plaintiff was not having any right for a relief of specific performance on the basis of Ex.A1. On the side of the appellants, it is stated that time was the essence of the contract and that after 31.12.1996, Ex.A1 was invalid and that the suit was bared by limitation as the suit was not filed within the time limit.
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25.On the side of the plaintiff, it is stated that Ex.A1 was valid and cancellation of Ex.A1 was unilateral and that time was not the essence of the contract and the plaintiff was having every right, for praying a relief of specific performance.
26.The contention of the plaintiff is that the land was to be measured and the boundaries were to be fixed to find out the available extent of the property and that as the condition of the agreement was not fulfilled by the fourth defendant, and as the property was not measured 'time' cannot be the essence of the contract and that it was the fourth defendant, who failed to perform his part of the contract. The contention of the fourth defendant is that this clause of the agreement was incorporated without the knowledge and consent of the fourth defendant. On the side of the respondents, it is stated that when the fourth defendant had written down the condition stating that “a further sum of Rs.90,000/- has to be paid on 15.09.1996” in his own handwriting, he must have gone through the entire agreement and he was well aware of the terms and conditions of the agreement and the clause in the agrement as to measuring of the property with the assistance of Village Administrative Officer and to fix the boundaries was incorporated in the agreement, only with the consent of the fourth defendant.
27.On the side of the respondents, it is stated that in the written statement http://www.judis.nic.in 17/40 A.S.(MD)No.325 of 2008 itself, the fourth defendant had stated that the plaintiff received a sum of Rs.1,500/- for clearing the bushes in the property in the name of Survey. This itself clearly reveals that the property was to be cleaned up and only after cleaning the bushes, the land could be measured and thereby such clause as to fixing the boundary was accepted by the fourth defendant.
28.Admittedly the defendant had paid Rs.1,500/- for cleaning the bushes. As the property was not measured, the boundary was not fixed and the plaintiff could not fix the extent of the property and he could not fix the total value of the property. The payment of further advance of Rs.90,000/- on or before 15.09.1996 is inserted in the agreement by the fourth defendant in his own handwriting. When the fourth defendant included a clause in the agreement in his own writing, the fourth defendant cannot claim that another clause was incorporated in the agreement without his knowledge. A person who signed a document is bound by the recitals in the document.
29.On the side of the appellants, it is stated that Ex.A2 notice was issued calling upon the plaintiff to be present at the Sub Registrar Office on 27.02.1996 with the entire sale consideration and that on the same date on 27.12.1996, the fourth defendant sent a legal notice, Ex.A5 stating that the sale agreement stands cancelled with effect from 01.01.1997.
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30.On the side of the first respondent, it is stated that though the first respondent was waiting at the S.R. Office on 27.12.1996, the fourth defendant failed to be present and that Ex.A5 was an legal notice and no date for registration was specified in the legal notice and that no document was filed to prove that the fourth defendant was available at the Sub Registrar Office on 31.12.1996 and that what was the balance sale consideration to be paid was not stated in Ex.A5 and that a notice cannot be treated as a cancellation deed for cancelling a sale agreement, and that the first respondent had sent a reply notice Ex.A6 stating that the cancellation was not valid.
31.It is seen that the fourth defendant did not come forward to give any explanation why the agreement was not cancelled by both the parties. From Ex.A2 it is clear that the fourth defendant fixed a date (27.12.1997) for registration of the sale deed and from Ex.A3, it is clear that on that date, the plaintiff conveyed his willingness to execute his part of the contract and even after receipt of Ex.A3, the fourth defendant had cancelled the sale agreement and without calling upon the plaintiff to pay the specific balance sale consideration and without calling upon the plaintiff to be present before the Sub Registrar Office on a specific date. There was no such specific wordings in Ex.A6 as to the amount to be paid or the date of proposed registration. A mere statement that “the agreement stand cancelled on 01.01.1997 if sale deed is not executed before 31.12.1996” is insufficient. Hence, it is decided that the cancellation of the sale agreement is not valid.
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32.On the side of the appellants, it is stated that the fifth defendant was a bonafide purchaser who purchased the property for a valuable consideration and the agreement between the plaintiff and the fourth defendant was cancelled by the fourth defendant and that though the fourth defendant was available in the third week of December 1996, the plaintiff failed to fulfil his part of the contract and that the plaintiff failed to pay the balance of advance amount within the stipulated time and that if the property was not measured and boundary not fixed, there was no necessity for the plaintiff to wait at the Sub Registrar office on 27.12.1996 without intimating the fourth defendant as to the date and time and that the statement of the plaintiff that he was waiting at the Sub Registrar office on 27.12.1996 was not acceptable and that a mere telegram was not sufficient to prove that the plaintiff was ready and willing to perform his part of the contract.
33.On the side of the appellants, it is stated that the sale agreement between the plaintiff and the fourth defendant was not known to the fifth defendant. The fifth defendant after the purchase in his name had divided the property into house sites and sold the property to various persons. Ex.B1 was the acknowledgement card. Ex.B2 was the sale deed in the name of the fifth defendant. Ex.B3 was the patta pass book in the name of fifth defendant. Ex.B4 was the power deed executed by the fifth defendant in http://www.judis.nic.in 20/40 A.S.(MD)No.325 of 2008 favour of the sixth defendant. Exs.B5 to B7 were the documents for dividing the suit property into house sites. Exs.B14 to B18 were the sale deeds executed by the sixth defendant on behalf of the fifth defendant. Exs.B9 to B13 were the copies of the parent sale deeds. Ex.B20 was the copy of sale deed executed by one Ramachandran in favour of Syed Ibrahim and two others. Ex.B21 was the intimation from the Central Bank of India, Pudukkottai Branch.
34.On the side of the appellants, it is stated that the plaintiff had not calculated the stamp duty and that he has not purchased any stamp papers and that he had not proved the availability of fund in his bank account and that since the plaintiff failed to perform his part of the contract, the fourth defendant was constrained to sell the property to the fifth defendant. It is stated that only after the fifth defendant had purchased the property, the plaintiff had come forward to file the suit and that as the fourth defendant had to return back to Singapore, he had to sell the property to the fifth defendant and that the relief of specific performance was only a discretionary relief and the burden was upon the plaintiff to prove that he was willing to perform his part of the contract and that the fourth defendant need not prove that he was willing to perform his part of the contract.
35.On the side of the first respondent, it is stated that P.W.3, M.K.Moorthy http://www.judis.nic.in 21/40 A.S.(MD)No.325 of 2008 had signed Ex.A1 as a witness. He has deposed that at the time of execution of the sale agreement, one Samsudeen and the fifth defendant were present and that since two witnesses were sufficient for the execution of a sale agreement, the fifth defendant did not sign the document. P.W.3 Murthi and D.W.4 Samsudeen had signed Ex.A1, sale agreement in favour of the plaintiff and they were known to the fifth defendant and Ex.A7 dated 19.09.1997 was a paper publication issued by the plaintiff's Advocate in a daily newspaper stating that the sale agreement was existing and was valid.
36.It is seen that P.W.3 and D.W.4 were the witnesses in Ex.A1 sale agreement, D.W.3 was a witness in Ex.B2. There is possibility for D.W.4 to have revealed the fact about the sale agreement to the fifth defendant. It is seen that the plaintiff issued Ex.A7 paper publication which was published in the newspaper on 19.09.1997. Ex.B2 was executed on 25.07.1997 only after the publication of Ex.A7. Hence, the fifth defendant cannot claim that he is unaware of the agreement.
37.On the side of the first respondent, it is stated that Ex.B2 was executed on 25.07.1997 and as per Ex.A1, the sale price was Rs.1,25,000/- per acre and that the sale price for the entire property would be more than Rs.14,77,000/- for 11.66 acre (4.72.0 hectares) but the property was sold to the fifth defendant only for a sum of Rs. 2,91,500/- which itself clearly revealed that the fifth defendant was not a bonafide purchaser and that sale price was not equitable.
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38.The learned counsel appearing for the appellants would rely upon the Judgment passed by this Court in the case of P.Retnaswamy v. A. Raja and another reported in 2008 (3) CTC 1, which reads as follows:
“Sale is transfer of property for consideration-
Inadequacy of sale consideration or under valuation property-Does not render contract of sale as void or illegal.
Burden of proving case rests on plaintiff notwithstanding fact that 1st respondent/original owner not filed written statement and remained ex parte.”
39.On the side of the first respondent, it is stated that the sale consideration was not paid on the date of execution of the the sale deed in favour of the fifth defendant. It is stated that the fifth defendant was said to have handed over a cheque to the fifth defendant on the date of sale and that whether the cheque was collected by the fourth defendant, whether the cheque was credited into the account of the fourth defendant and whether the fifth defendant was having fund in his account on that date were not proved by the fifth defendant. On the side of the appellants, it is stated that the fifth defendant had produced the bank certificate for debiting the cheque for Rs. 2,91,500/- which was marked as Ex.B21. D.W.5 has deposed that the cheque was credited on 28.08.1997. Though the sale deed was executed on 25.07.1997 itself, Ex.B21, cheque given by the fifth defendant was credited to the account of the fourth defendant only on 28.07.1997. The reason for the fourth defendant to have received a http://www.judis.nic.in 23/40 A.S.(MD)No.325 of 2008 cheque instead of a demand draft was not explained.
40.The fourth defendant was examined as D.W.1. He was not available for cross examination. Except some lines in the chief examination, the fourth defendant did not depose anything regarding this case. Evidence of the fifth defendant is not supported by the evidence of the fourth defendant. The sale price as per Ex.A1 is Rs. 1,25,000/- per acre. The total extend sold to the fifth defendant is 14.66 acres. The value of the suit property should be Rs.14,70,000/-. But the property was sold to the fifth defendant only for a sum of Rs.2,94,500/-. When the plaintiff was ready to purchase the property for a higher rate, selling the same property for less than quarter of that amount to the fifth defendant is suspicious. In the above circumstances, the purchase of the fifth defendant cannot be a bonafide one. Hence, it is decided that the fifth defendant is not a bonafide purchaser.
Issue Nos.4 and 5 :
41.On the side of the appellants, it is stated that the plaintiff is not ready and willing to perform his part of the contract and that the plaintiff has failed to pay the further advance amount of Rs.90,000/- on or before 15.09.1996.
42.On the side of the appellants, it is stated that the plaintiff is duty bound to prove that he was ready and willing to perform his part of the contract. The learned http://www.judis.nic.in 24/40 A.S.(MD)No.325 of 2008 counsel appearing for the first respondent would rely upon the Judgment passed by the Hon'ble Supreme Court in the case of Ram Awadh(Dead) by Lrs. And Others v. Achhaibar Dubey and another reported in (2000) 2 Supreme Court Cases 428, which reads as follows:
“The obligation imposed by Section 16 is upon the court not to grant specific performance to a plaintiff who has not met the requirements of clauses (a), (b) and (c) thereof. A court may not, therefore, grant to a plaintiff who has failed to aver and to prove that he has performed or has always been ready and willing to perform his part of the agreement the specific performance whereof he seeks. There is, therefore, no question of the plea being available to one defendant and not to another. It is open to any defendant to contend and establish that the mandatory requirement of Section 16(c) has not been complied with and it is for the court to determine whether it has or has not been complied with and, depending upon its conclusion decree or decline to decree the suit. We are of the view that the decision in JUGRAJ SINGH case is erroneous.”
43.The learned counsel appearing for the appellants would rely upon the Judgment passed by the Hon'ble Supreme Court in the case of Saradamani Kandappan v. S.Rajalakshmi and Others reported in 2011 (4) CTC 640, which reads as follows:
“28. Till the issue is considered in an appropriate case, we can only reiterate what has been suggested in K.S. Vidyanadam (supra) :
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(i) Courts, while exercising discretion in suits for specific performance, should bear in mind that when the parties prescribe a time/period, for taking certain steps or for completion of the transaction, that must have some significance and therefore time/period prescribed cannot be ignored.
(ii) Courts will apply greater scrutiny and strictness when considering whether the purchaser was `ready and willing' to perform his part of the contract.
(iii) Every suit for specific performance need not be decreed merely because it is filed within the period of limitation by ignoring the time-limits stipulated in the agreement. Courts will also `frown' upon suits which are not filed immediately after the breach/refusal. The fact that limitation is three years does not mean a purchaser can wait for 1 or 2 years to file a suit and obtain specific performance. The three year period is intended to assist purchasers in special cases, as for example, where the major part of the consideration has been paid to the vendor and possession has been delivered in part performance, where equity shifts in favour of the purchaser.”
44.The contention of the plaintiff is that the fourth defendant did not come forward to measure the property and to fix the boundaries and that without informing the plaintiff, the fourth defendant has gone abroad even after he came back from Singapore, the fourth defendant did not contact the plaintiff. http://www.judis.nic.in 26/40 A.S.(MD)No.325 of 2008
45.On the side of the first respondent, it is stated that only after measuring of the property and after fixing the boundaries, the plaintiff had to pay a sum of Rs. 90,000/-. Since the fifth defendant was out of station, the plaintiff was not able to pay the amount and that in the written statement in paragraph no.5, the fourth defendant had admitted that he came to India only on 14.12.1996. On the side of the appellants, it is stated that the fourth defendant came to India on 14.12.1996 for the sole purpose of executing the sale deed. This fact was admitted by the fourth defendant in his written statement. It is seen that the fourth defendant came to India only on 14.12.1996. The reason for non payment of further advance as put forth by the first respondent is acceptable.
46.The contention of the plaintiff is that only after measuring the property and after fixing the exact extent of the property, the sale price could be paid and in the agreement only the rate per acre was fixed by the parties and the entire sale consideration was not fixed in the agreement and the fourth defendant failed to measure the property and to find out the exact extent and that even in the telegrams and in the legal notice sent by the fourth defendant, the exact sale consideration to be paid by the plaintiff was not stated.
47.On the side of the appellant, it is stated that measuring the property was not a condition in the agreement and that this clause was inserted in the agreement http://www.judis.nic.in 27/40 A.S.(MD)No.325 of 2008 without the consent or knowledge of the fourth defendant. On the side of the appellant, it is stated that the boundaries were clear and there was no necessity to measure the property and only after the receipt of the balance consideration, the land has to be identified measured and to be handed over and not before that. It is stated that even in the reply telegram sent by the plaintiff, the land to be measured with the help of the Village Administrative Officer was not stated and there was no such condition agreed upon by the parties.
48.The learned counsel appearing for the appellants would rely upon the Judgment passed by the Hon'ble Supreme Court in the case of Padmakumari and Others v. Dasayyan and Others reported in (2015) 8 Supreme Court Cases 695, which reads as follows:
“The said contention urged on behalf of the plaintiff is unacceptable to us that the question of taking measurement would not arise before the plaintiff perform his part of the contract regarding the balance consideration within the period stipulated in the agreement. Undisputedly, that had not been done by the plaintiff in the instant case within the stipulated time and the notice was issued by the plaintiff only after one year, therefore, the plaintiff has not adhered to the time which is stipulated to pay the balance consideration amount to defendant Nos. 1 to 11 which is very important legal aspect which was required to be considered by the Courts below at the time of determining rights of the parties and pass the impugned judgment. The Courts below have ignored http://www.judis.nic.in 28/40 A.S.(MD)No.325 of 2008 this important aspect of the matter while answering the contentious Issue Nos. 1 and 2 in favour of the plaintiff and granted decree of specific performance in respect of the suit schedule property. The said finding of fact is contrary to the terms and conditions of the agreement, pleadings and the evidence on record. Accordingly, we answer the said issues in favour of defendant Nos. 12 to 15 after setting aside the concurrent finding of fact recorded by the High Court. ”
49.On the side of the respondents, it is stated that in the written statement itself, the fourth defendant had stated that the plaintiff received a sum of Rs.1,500/- for clearing the bushes in the property in the name of Survey. This itself clearly reveals that the property was to be cleaned up and only after cleaning the bushes, the land can be measured and thereby such clause as to fixing boundary was accepted by the fourth defendant.
50.The fourth defendant in his written statement has stated that the plaintiff received a sum of Rs.1,500/- from the fourth defendant for clearing the bushes in the property in the name of 'Survey'. This statement clearly reveals that the land has to be surveyed for fixing the exact value of the property. Admittedly the defendant had paid Rs.1,500/- for cleaning the bushes and that as the property was not measured, the boundary was not fixed the plaintiff could not fix the extent of the property and he could not fix the total value of the property.
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51.In the written statement of the fourth defendant in paragraph no.3, it is clearly stated that the plaintiff entered the land to clear the bushes. Though the plaintiff has cleared the bushes, the fourth defendant did not come forward to demarcate the property and that the fault was on the proposed vendor. There is clear wordings in the agreement that the property had to be measured at the cost of the vendor and that the plaintiff was permitted to remove the bushes at the cost of the fourth defendant which reveals that the fourth defendant had not performed his part of the contract and failed to measure the property.
52.On the side of the appellants, it is stated that the plaintiff never intent to purchase the property in his name and he decided to sell the property to some strangers and since the plaintiff could not find out a proposed purchaser, he did not come forward to purchase the property in time. On the side of the first respondent, it is stated that Exs.B5 to B7, Exs.B14 to B18 and Ex.B20 reveals that it was the respondents 4 and 5 who intend to sell the property to strangers and that Ex.B2 is not a bonafide document.
53.On the side of the appellants, it is stated that the suit is bared by limitation as the suit is not filed within the time limit. On the side of the appellants, it is stated that the time was the essence of the contract and that after 31.12.1996, Ex.A1 is invalid and that the suit was bared by limitation as the suit was not filed within the http://www.judis.nic.in 30/40 A.S.(MD)No.325 of 2008 time limit.
54.On the side of the appellant, it is stated that though the plaintiff received the notice on December 1996 itself, he filed the suit only after 10 months and that there was no reason for the delay in filing the suit.
55.The learned counsel appearing for the appellants would rely upon the Judgment passed by the Hon'ble Supreme Court in the case of B. Vijaya Bharathi v. P.Savitri and Others reported in 2018-1-L.W. 461, which reads as follows:
“The High Court was right in stating that no prudent person would stay quiet for a period of one year and eleven months after such an unequivocal repudiation of the agreement if they were really interested in going ahead with the sale transaction.”
56.The learned counsel appearing for the appellants would rely upon the Judgment passed by the Hon'ble Supreme Court in the case of Chand Rani (Smt)(Dead) by lrs. v. Kamal Rani (Smt) (Dead) by lrs. reported in (1993) 1 Supreme Court Cases 519, which reads as follows:
“Therefore, we conclude that though as a general proposition of law time is not the essence of the contract in the case of a sale of immovable property yet the parties intended to make time as the essence under clause (1) of the suit agreement. From this point of view, we are unable to see how the case in http://www.judis.nic.in 31/40 A.S.(MD)No.325 of 2008 Nathulal could have any application to the facts of this case.
The redemption of the mortgage would be done and the income tax clearance also would be obtained after the purchase of stamp paper. Where, therefore, the plaintiff was put on notice as to the stand of the defendant with regard to payment of Rs. 98, 000 which again was reiterated in the notice dated September 16, 1973, nothing would have been easier for the plaintiff than to pay the said sum. Instead of adopting that course what is stated in the notice dated September 24, 1971 by the plaintiff is as follows '5.That as per agreement, your client has to pay all taxes, rates, municipal taxes up to the date of registration and that the previous and other documents pertaining to the said plot No. 30, Block 'K' sanctioned plan and completion certificates from Municipal Corporation of Delhi in respect of the superstructure built on the said plot shall be handed over along with the vacant possession of first floor by September 30, 1971.
You know that September 30, 1971 is fast approaching and your client is still to comply with these requirements besides mentioned in para Nos. 2 and 3 of the agreement.
I, therefore, call upon you to advise you client to comply with the requirements well before September 30, 1971 or latest by September 30, 1971 and obtain the further part consideration of Rs. 98, 000 from my client.'”
57.The learned counsel appearing for the appellants would rely upon the Judgment passed by the Hon'ble Supreme Court in the case of Azhar Sultana v. B.Rajamani and Others reported in 2009-3-L.W. 911, which reads as follows:
http://www.judis.nic.in 32/40 A.S.(MD)No.325 of 2008 “It is also a well settled principle of law that not only the original vendor but also a subsequent purchaser would be entitled to raise a contention that the plaintiff was not ready and willing to perform his part of contract.
If the plaintiff has failed to establish that she had all along been ready and willing to perform her part of contract, in our opinion, it would not be necessary to enter into the question as to whether the defendant Nos.5 and 6 were bonafide subsequent purchasers for value without notice or not.”
58.On the side of the respondent, it is stated that when the extent was not finalised, it was impossible for the plaintiff to calculate the sale price and as per the contract Act, the plaintiff was having three years time to execute the agreement and the fourth defendant cannot question the delay of 10 months in filing the suit.
59.On the side of the appellants, it is stated that the plaintiff had not proved that the agreement period was extended and that the plaintiff failed to prove that steps were taken by him to fulfil his part of the contract.
60.The learned counsel appearing for the appellants would rely upon the Judgment passed by the Hon'ble Supreme Court in the case of P.Meenakshisundaram v. P.Vijayakumar and another reported in 2018 (3) CTC 428, which reads as follows:
“No relevant details of steps taken to fulfill http://www.judis.nic.in 33/40 A.S.(MD)No.325 of 2008
obligations ........ Buyer not ready and willing to perform his part of Contract”
61.The fourth defendant sent a telegram to the plaintiff on 24.12.1996 calling upon him for registration on 27.12.1996 and this telegram was marked as Ex.A2. The plaintiff had sent a reply telegram stating that he was ready with the entire sale consideration. On 27.12.1996, the fourth defendant sent another telegram admitting the receipt of Ex.A3 and calling upon the fourth defendant to fix a date within the month of December for execution of sale deed. On the same day, the fourth defendant sent a legal notice wherein the plaintiff was called upon to pay the balance sale consideration within 31.12.1996. This notice is marked as Ex.A5. On the side of the appellants, it is stated that the fourth defendant waited in the Sub Registrar office from morning till evening on 31.12.1996 and the plaintiff did not come and the sale deed stood cancelled with effect from 01.01.1997.
62.On the side of the appellant, it is stated that the “time is the essence of the contract” and the plaintiff failed to be present at the SRO office on or before 31.12.1996 and that the agreement become invalid.
63.The learned counsel appearing for the appellants would rely upon the Judgment passed by this Court in the case of T.R.Murugesan v. S.Balakrishnan and Others reported in 2018(6) CTC 56, which reads as follows:
http://www.judis.nic.in 34/40 A.S.(MD)No.325 of 2008 “There is nothing in Agreement, which enables extension-Time fixed under Agreement is essence of Contract-No explanation on side of plaintiff for delay in issuing Legal Notice after time fixed for performance.”
64.On the side of the first respondent, it is stated that even in the reply telegram sent by the plaintiff on 24.12.1996, he has agreed for the execution of sale on 27.12.1996 and the plaintiff was waiting in the Registrar office on 27.12.1996 but the fourth defendant did not come there and that as soon as the plaintiff received Ex.A5 he sent a reply notice on 31.12.1996 conveying his readiness and willingness to perform his part of the contract.
65.On the side of the plaintiff, it is stated that the reply notice Ex.A5 was served upon the Advocate of the fourth defendant on 31.12.1996 at about 3.30 p.m. It is seen that after the receipt of notice, the plaintiff has sent a reply notice Ex.A5 and served the same to the fourth defendant's Advocate on 31.12.1996 itself.
66.It is seen that though the fourth defendant called upon the plaintiff to be present on 27.12.1996 he failed to appear before the Sub Registrar Office. The fault is on the part of the fourth defendant who fixed the date of execution as 27.12.1996 and failed to be there on that date. Even in the legal notice dated 27.12.1996, the fourth defendant did not mention that he was available at the Sub Registrar office on http://www.judis.nic.in 35/40 A.S.(MD)No.325 of 2008 27.12.1996. No document was filed on the side of the fourth defendant to prove that the legal notice dated 27.12.1996 was posted on that particular date. Why the fourth defendant failed to sent a telegram on 27.12.1996 and had chosen to sent a notice through post without giving an opportunity for the plaintiff to execute the sale deed before 31.12.1996 was not explained by the appellant.
67.A perusal of the Ex.A1 reveals that the amount fixed in the agreement was Rs.1,25,000/- per acre. The exact extent of the land was not specified in the agreement and the exact consideration also was not stated in the agreement. The wordings in the agreement is that the first defendant has to measure the property and to fix the four boundaries. On the side of the defendants, no document was filed to prove that the property was measured and the entire sale consideration for the exact extent of the land was fixed. The contention of the fourth defendant that the clause for measurement was inserted in the agreement without the consent and knowledge of the fourth defendant is not acceptable. Obviously the fourth defendant was out of station and he came back to India only on 14.12.1996. Even in the written statement of the fourth defendant, there is no pleadings as to the availability of the fourth defendant in the station till 15.09.1996. No document was filed by the fourth defendant to prove that his arrival was intimated to the plaintiff. The non payment of further advance of Rs. 90,000/- before 15.09.1996 is not fatal to the plaintiff, since the fourth defendant was not available in station.
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68.From Ex.A2, it is seen that the fourth defendant called upon the plaintiff for execution of the sale deed on 27.12.1996. From Ex.A3, it is clear that the plaintiff sent a reply conveying his readiness and willingness to perform his part of the contract and calling upon the fourth defendant to be present in the Registrar office on 27.12.1996. This notice was received by the fourth defendant on 27.12.1996. The fourth defendant sent another notice, Ex.A4 on the very same date admitting the receipt of Ex.A3. Though in Ex.A2, the fourth defendant has called upon the plaintiff/first respondent to be present on 27.12.1996, the fourth defendant did not turn up before the Sub Registrar office. Why the fourth defendant was not present before the Sub Registrar office on 27.12.1996 was not stated in Ex.A4 or in the written statement. Ex.A2 reveals that the date of execution was fixed by the fourth defendant. Ex.A3 reveals that the plaintiff was ready and willing to perform his part of the contact on the very same date. Ex.A4 reveals that the fourth defendant received Ex.A3 but failed to be present at Sub Registrar office on 27.12.1996. It was the fourth defendant who fails to be present before the Sub Registrar Office on 27.12.1996. Exs.A2, A3 and A4 reveals that the plaintiff was ready and willing to perform his part of the contract.
69.It is seen that immediately on the receipt of the notice, the plaintiff take steps and had sent a reply. What was the balance sale price was not stated in the legal notice Ex.A5 sent by the defendant. There was no specific wordings in Ex.A5, legal http://www.judis.nic.in 37/40 A.S.(MD)No.325 of 2008 notice calling upon the plaintiff to be present in the Sub Registrar office on 31.12.1996. Only a vague statement that if the sale deed was not executed on 31.12.1996, the agreement stood cancelled by 01.01.1997 is stated in the notice. No document was produced by the fourth defendant to prove that he was available at the Sub Registrar office on 31.12.1996 from morning till evening. Though notice was sent by the Advocate on 27.12.1996, the fourth defendant failed to call upon the plaintiff to perform his part of the contract by mentioning a specific date for execution and by mentioning the specific sale price. In the above circumstances, this Court cannot presume that the fourth defendant was ready and willing to perform his part of the contract.
70.A perusal of Ex.A2 reveals that the date for execution fixed by the fourth defendant was 27.12.1996. No document was filed to prove that the fourth defendant was available before the Sub Registrar office on 27.12.1996. There was no pleadings that the fourth defendant was available at the Sub Registrar Office on 27.12.1996. From Ex.A3, it is clear that the plaintiff expressed his readiness and willingness to perform his part of the contract on 27.12.1996. From Ex.A4 and Ex.A6, it is clear that the fourth defendant failed to appear before Sub Registrar office on 27.12.1996. Even in Ex.A5, the fourth defendant did not call upon the plaintiff to be present before the Sub Registrar office on 31.12.1997. The non payment of further advance of Rs.90,000/- is not fatal as time is not the essence of the contract for payment of further advance. The reason for non payment of further advance by the plaintiff was the non availability of the fourth http://www.judis.nic.in 38/40 A.S.(MD)No.325 of 2008 defendant in station. Hence, it is decided that the plaintiff has proved that he was ready and willing to perform his part of the contract and the plaintiff is entitled for a decree of specific performance.
Issue no.6:
71.All the issues are decided in favour of the first respondent. The appellants failed to prove that they are bonafide purchasers for valuable consideration. The appellants failed to prove that the agreement between the four defendant and the plaintiff is cancelled. The appellants failed to prove that they are not aware of the sale agreement between the plaintiff and the fourth defendant. Whereas Ex.A1 is proved by the plaintiff. The fourth defendant did not come forward to be cross examined by the plaintiff. The sale value in Ex.B2 is much lesser than in Ex.A1 which creates doubt as to the geniuneness of the sale deed.
72.In the above circumstances, it is decided that there is nothing sufficient enough to interfere the judgment and decree passed by the trial Court. This Appeal suit is dismissed by confirming the judgment and decree passed in O.S.No.7 of 2004 dated 08.06.2007 on the file of the Principal District Judge, Pudukottai. No Costs. http://www.judis.nic.in 39/40 A.S.(MD)No.325 of 2008 R.THARANI, J.
mrn Consequently, M.P.(MD)No.1 of 2009 is closed.
16.04.2019
Index : Yes/No
Internet : Yes/No
Mrn
To
1.The Principal District Judge, Pudukottai.
2.The V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
A.S.(MD)No.325 of 2008
16.04.2019
http://www.judis.nic.in
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