Madras High Court
Mohammed Hafiz vs Krishnasamy on 20 October, 2021
Author: P.T. Asha
Bench: P.T. Asha
A.S.Nos.645 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 22.09.2021
Pronounced on : 20.10.2021
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
A.S.No.645 of 2016
&
C.M.P.No.18896 of 2016
Mohammed Hafiz ...Appellant
Vs.
1.Krishnasamy
2.Krishnamoorthy ... Respondents
Prayer: Appeal is filed under section 96 of the Code of Civil
Procedure against the judgment and Decree dated 20.12.2013 passed in
O.S.No.15 of 2010 on the file of the District Court, Perambalur.
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A.S.Nos.645 of 2016
For Appellant : Mr.P.Mani
For Respondents : Mr.E.K.Kumaresan
JUDGEMENT
The defendant is before this Court as the appellant.
2. The reliefs sought for in the suit O.S.No.15 of 2010, Principal District Court, Perambalur:
"1.thjpfSf;Fk;. gpujpthjpf;Fk; Vw;gl;l 26/02/2010e; njjpa fpua xg;ge;jg;go thjpfs; ju ntz;oa ghf;fpg; gzk; U:/10.00.000-? ,e;j gpujpthjp bgw;Wf; bfhz;L. jhth brhj;ij thjpfSf;F fpuak; bra;J bfhLf;f ntz;Lk;
vd;Wk;. mt;thW me;j gpujpthjp
ghf;fpg;gzj;ij bgw;Wf; bfhs;shky; jhth
brhj;ij thjpfSf;F fpuak; bra;J
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A.S.Nos.645 of 2016
bfhLf;fhky; ,Uf;Fk; gl;rj;jpy; rK:fk;
ePjpkd;wk; jhth brhj;ij ,e;j thjpfSf;F
fpuak; vGjpf; bfhLf;f ntz;Lbkd;Wk;. jhth
brhj;jpd; RthjPdj;ij thjpfs; trk;
xg;gilf;f ntz;Lk; vd;Wk; cj;jutpl;Lk;.
2/jhth bryt[j; bjhifia ,e;j
thjpfSf;F. gpujpthjp tH';f ntz;Lbkd;W
cj;jutpl;Lk;. kw;Wk;
3/,e;j jhthtpd; jd;ikf;nfw;g fdk;
nfhu;ll
; hutu;fSf;F epahaKk;. crpjKk; vdj;
njhd;Wk; ,ju a[f;jkhd gupfhu';fs;
thjpfSf;F fpilf;f cj;jutpl;Lk;. ePjp tH';f ntz;Lkha; thjpfs; gzpt[ld;
gpuhu;j;jpf;fpwhu;fs;/
3. Suit Property:
"bguk;gYhu; o/. mupaYhu; up/o/ 3/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 thzpfz;lg[uk; rg;/up/o/. bguk;gYhu; tl;lk;. br';Fzk; fpuhk vy;iyapy; 1 egupd; jhahu; $hk;rh gP mtu;fshy; 22/04/1985k; njjp vGjp itf;fg;gl;l brl;oy;nkz;l; Mtzj;jpd;go m/g[/ru;nt vz;/261 Vf;/11/35y; 1 egUf;F (gpujpthjpf;F) cupika[s;s 3y; 1 ghfkhd Vf;/3/00 epyk; kw;Wk; rfy khK:y; ghij ghj;jpak; cs;glt[k; nru;j;J ,e;j fpua xg;ge;jj;jpw;F fl;Lg;gl;lJ/ ic& epyk; br';Fzk; fpuhk g";rhaj;J vy;iyf;Fl;gl;ljhFk;/ 4. Plaintiffs case:
(i) The plaintiffs have filed the above suit O.S.No.15 of 2010 on the file of the District Court, Perambalur seeking specific performance of an agreement dated 26.02.2010. It is the case of the plaintiffs that 4/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 the suit property belonged to the defendant who had entered into an agreement with the plaintiffs on 26.02.2010 to sell the same for a total sale consideration of Rs.21,00,000/-. On the date of the signing of the agreement, he had received an advance of Rs.1,00,000/- and the balance of Rs.20,00,000/- was to be paid on or before 26.06.2010 and on receipt of the said balance the defendant had undertaken to execute and register the sale deed.
(ii) While so, all of a sudden on 26.04.2010, the defendant had required funds urgently and had approached the plaintiffs with the said request. The original sale deed was with the 2nd plaintiff and therefore an endorsement could not be made on the reverse. The 1st plaintiff had obtained a promissory note for the same and the defendant had assured that as and when the 2nd plaintiff returns he would make an endorsement on the agreement of sale. However, he did not comply with this promise.
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(iii) Thereafter, despite repeated requests the defendant did not come forward to receive the balance sale consideration and execute the sale deed. This constrained the plaintiffs to issue a legal notice dated 25.06.2010, to which there was no response from the defendant. Therefore, the plaintiffs had come forward with the said suit.
5. Defendant's case:
(i) The defendant had woven a defense denying the very execution of the agreement of sale. He had narrated the manner in which the suit property had come to his share.
(ii) It was the defendant's case that the originally larger extent of the suit property belonged to one Jamsa Beevi, who was the first wife of the Muthalif Saibu, the defendant's father. She had settled the larger extent of the suit property measuring an extent of 11.35 acres on her 6/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 husband along with the another extent of 5.61 acres of land. The defendant's father had sold three acres during his life time from out of the 11.35 acres.
(iii) It was the further narrative of the defendant that one Sakthivel, Sengunan (Postman), Jayapal and one Parimanam have asked Muthalif Saibu to sell the property, which was turned down by the defendant's father. Therefore, upset and enraged by the same they had manipulated the revenue accounts to create a partition amongst the legal heirs of the Muthalif Saibu, even during his lifetime.
(iv) Thereafter, they had manipulated a power of attorney dated 25.09.2008 from the defendant's elder brother, Raghamathullah. Based on this power of attorney, they had executed the sale deed in favour of one Subramani, in respect of an extent of 3.70 acres. It is the case of the defendant that all these transactions were sham and nominal since 7/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 the possession continued to remain with his father. On 08.12.2009, the defendant's father had executed a settlement deed in favour of his second wife Umsalma Beevi, the defendant's mother and he died on 16.12.2009.
(v) As regards the agreement of sale put forward by the plaintiff, the defendant has denied the same stating that his thumb impression in the document has been forged. He would submit that he had been afflicted with a neurological disorder from his childhood and he cannot affix a thumb impression even with the help of others. Therefore, he was only in the habit of affixing his signature. Therefore, the left thumb impression found in the agreement of sale was a rank fabrication / forgery.
(vi) The defendant would further contend that the plaintiffs had entered into an agreement of sale with his mother Umsalma Beevi and 8/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 his younger brother Akbar Ali in respect of 10.45 acres for a total sale consideration of a Rs.1,30,75,125/-. He would submit that if the sale in favour of Subramani, the agreement executed by his mother and brother and the agreement alleged to have been executed by the defendant is taken into account, then the total land that was sold was an extent of 16.95 acres, whereas, the defendant's father after the sale of the 3 acres was left with only acre 13.94 acres. This itself would show that the agreement of sale was a fabricated document.
(vii) The defendant would submit that the plaintiff had issued a notice to his mother and brother on 03.07.2010, to which they had sent a response on 08.07.2010. However, the notice which has been sent to the defendant has been manipulated as if the defendant had received the same by taking the help of Sengunam, the postman. The defendant therefore would submit that on 22.07.2010, he had lodged a complaint with the Maruvathur Police Station as he was being threatened by the 9/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 plaintiffs and their men. He would submit that he is not obliged to execute any sale deed in favour of the plaintiffs since the agreement of sale is a forged document.
6. Trial Court
(i)Taking account on the pleadings of the either side, the learned District Judge had framed the following issues:
"(i) Whether the suit property not belonged to the defendant absolutely? .
(ii) Whether the suit sale agreement dated 26.2.2010 is true, Valid and enforceable one?
(iii) ls it true that the defendant has received Rs.11,00,000/- as advance?
(iv) Whether the Plaintiff is entitled to get the relief of Specific Performance?
(v) To what relief?
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(ii) The parties had gone to trial on the above issues. The plaintiffs to prove their case had examined six witnesses and had marked Ex.A1 to Ex.A9 as also Ex.C.1. On the side of the defendant 2 witnesses were examined as D.W.1 and D.W.2 and Ex.B.1 to Ex.B.7 were marked.
(iii) The learned Judge after extensively delving on the discretionary jurisdiction vested with the Courts in cases of suits for Specific Performance as set out in Section 20 of the Specific Relief Act, and considering the evidence both oral and documentary decreed the suit in favour of the plaintiffs. It is challenging the said Judgement and Decree that the defendant is before this Court.
7. Points for consideration:
After hearing the arguments advanced on the side of the 11/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 defendant / appellant and the plaintiffs / respondents, the points for consideration that arise in this appeal are as follows:
a) Whether Ex.A.1, agreement of sale has been executed by the defendant in favour of the plaintiffs?
b) Whether the plaintiffs were ready and willing to go ahead with the sale deed?
c) Whether the Trial court has considered all the evidences let in on both sides to arrive at the decree?
8. Submissions:
(i) Mr.P.Mani, learned counsel appearing for the defendant / appellant would submit that a suspicion is created as the thumb impression of the defendant has been obtained both in Ex.A.1, agreement of sale as well as Ex.A.2, promissory note, despite the fact that the defendant is literate and is in the habit of affixing his signature.
He would question the action of the 1st plaintiff who is the auditor in 12/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 getting a promissory note and not a receipt in the agreement or a receipt acknowledging the payment.
(ii) The learned counsel would further submit that the plaintiffs have not proved their readiness and willingness, which is a sine qua non for obtaining a decree for specific performance. He would argue that though the defendant had denied the financial capacity of the plaintiffs, the plaintiffs have not sought to disprove the said defense. He would further submit that once the agreement as also the promissory note is denied, then the onus is upon the plaintiffs to prove the same and further the defendant has also denied the receipt of the sale consideration which has not been proved in the instant case.
(iii) The learned counsel though in the course of argument had submitted that he would be circulating the Judgements, the same has not been produced. The Judgement that are produced are ones that 13/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 have been reported in the Indian Kanoon and not an authenticated report of the said Judgement. Further, the learned counsel has not highlighted the ratio decidendi of the Judgement which he seeks to bring to this Court's notice. Therefore, this Court is not taking into account the same.
(iv) Per contra, Mr.E.K.Kumaresan, learned counsel appearing on behalf of the plaintiffs / respondents would submit that the first defense taken by the defendant was that the left thumb impression contained in both the agreement of sale, Ex.A.1 and the promissory note, Ex.A.2 were not his signatures but were fabricated ones. The plaintiff, apart from examining P.W.2 and P.W.3 has also sent the documents for handwriting expert's opinion along with the admitted LTIs and the report of the expert has been marked as Ex.C.1. The report clearly state that the except for one LTI, all the other LTIs in Ex.A.1 as well as Ex.A.2 matched with the admitted LTI of the defendant. The LTI in 14/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 the first page could not be confirmed as it was over smudged. Therefore, he would submit that the first defense that the defendant had not executed the documents, falls flat.
(v) The promissory note has been executed in the presence of the defendant's elder brother, Raghamathullah. The defendant who had stated that he would examine his brother has not put his brother, Raghamathullah into the box.
(vi) The learned counsel would further contend that the suit notice under Ex.A.3 had been issued to the defendant who did not seek to respond to the same. As regards the readiness and willingness, the learned counsel would submit that under the terms of Ex.A.1 agreement a sum of Rs.20,00,000/- had to be paid on or before 26.06.2010. On 26.04.2010, the defendant had requested for a further sum of Rs.10,00,000/- for which the plaintiffs had obtained a 15/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 promissory note from the defendant. The plaintiff have also stated as to why they had not obtained the signature in the reverse of Ex.A.1.
(vii) It is the plaintiffs' case that the original agreement of sale was with the 2nd plaintiff, who on the date of extending a further sum of Rs.10,00,000/- was not in town and therefore the promissory note was obtained. The defendant had assured the plaintiffs that he would make an endorsement in the reverse of the agreement of sale Ex.A.1 once the 2nd plaintiff return. However, despite the plaintiffs' requesting the defendant to come and sign the agreement, he had not come forward to do so.
(viii) That apart, the suit has been filed on 30.07.2010 itself. The plaintiff has issued a legal notice on 25.06.2010 itself, informing the defendant that the balance sale consideration was ready with the plaintiffs and calling upon him to execute the sale deed. Therefore, the 16/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 readiness and willingness of the plaintiffs stand proved.
(ix) Another factor that the Court below has taken note of is the alienation of the suit property by the defendant pending the suit. The property has been sold despite the plaintiffs issuing telegram to the proposed buyer Senthil Kumar and the Sub Registrar, Valikandapuram, under Ex.A.6 on 03.06.2011. The purchaser to whom the notice has been issued has cleverly purchased the property in the name of his wife, which is evident from the cross examination of D.W.1.
(x) The learned counsel would submit that the conduct of the defendant from the date of execution of the agreement of sale was not bonafide and there is a clear intention not to honour the agreement. The learned counsel would further submit that though the property had been sold to the third party, they had not taken possession of the same and after the decree in the suit, the plaintiffs have filed execution 17/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 proceedings and had the sale deed executed in their favour and delivery of possession has also been taken by the plaintiffs. As on date, the plaintiffs are in possession of the property. He would rely on the following Judgements:
(i) 2015 (1) SCC 705 - Zarina Siddiqui Vs.
A.Ramalingam Alias R.Amarnathan.
(ii) 2013 (8) SCC 131 - Satya Jain (Dead)
through LRs. and others Vs. Anis Ahmed Rushdie (Dead) through LRs and others.
9. Discussion:
(i) Heard the learned counsels elaborately.
(ii) The defendant who has come forward with a specific case that he has not executed either the agreement of sale, Ex.A.1 or the promissory note, Ex.A.2 has been found to be putting forward a 18/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 blatantly false defense which is evident from the examination of Ex.C.1. The report issued by the Superintendent of Police, Tamil Nadu Finger Print Bureau, Chennai - 600 028, marked as Ex.C.1 clearly shows that the disputed LTI marked as D 2, found against the name of the defendant on the front page of the second sheet of the sale deed dated 20.12.2010 along with the disputed LTI in the third sheet and the promissory note are identical with one another and made by the same fingers of one and the same person. These LTIs are found to be identical with the admitted specimen left thumb impression marked as "S", which was the specimen left thumb impression taken on 12.06.2012.
(iii) The report gives details as to how the expert has come to the conclusion that the document in question has been executed by the defendant. Apart from sending the LTIs for expert's report, the plaintiffs has also examined the witness of Ex.A.1, agreement of sale 19/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 and also the witnesses of Ex.A.2, promissory note. These witnesses have clearly deposed not only about the execution of the two deeds but also with regard to the passing of consideration. Therefore the defense taken by the defendant fails and the Trial Court has rightly held that the Ex.A.1 and Ex.A.2 have been executed by the defendant himself.
(iv) The defendant in his written statement had made it appear that the property had been settled absolutely on his father and it was his father who had been dealing with the said property as its absolute owner. However, from the oral evidence, it is seen that the father of the defendant was given only a life interest and absolute right in the property had devolved on the defendant and his brothers with each of them being alloted an extent of 3.78 acres in the total extent.
(v) It is an admitted case that the eldest brother of the defendant one, Raghamathullah had sold his share to one Subramani and the 20/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 younger brother, Akbar Ali along with their mother Umsalma Beevi had also entered into an agreement with the plaintiffs.
(vi) Therefore, the contention of the defendant that his father had executed the settlement deed in favour of their mother Umsalma Beevi on 08.12.2009 apart from not being proved is also not a valid deed since the defendant's father only enjoyed a life interest in the property and was not the absolute owner of the same.
(vii) A perusal of the defense and the oral and documentary evidence submitted by the defendant would clearly show that the defendant has come to Court with an absolutely false case and his conduct is also suspect. The defendant has not proved any of the defenses that has been raised by him. As stated earlier the learned Judge has extensively considered the provisions of Section 20 of the Specific Relief Act, qua the facts of the instant case to come to the 21/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 conclusion that the plaintiffs have not only proved the agreement of sale but has also proved their readiness and willingness to go ahead with the sale deed and it is only the defendant who has for the reasons best known to him reneged on the agreement. The Trial Court has rightly observed that the defendant is not a trust worthy witness.
10.In the above circumstance, I hold the points for consideration against the defendant and consequently the appeal stands dismissed confirming the Judgement and Decree in O.S.No.15 of 2010 on the file of the District Court, Perambalur. Consequently, connected Civil Miscellaneous Petition is also closed. No costs.
20.10.2021 Index : Yes/No Internet : Yes/No kan To, The District Court, Perambalur.
22/23 https://www.mhc.tn.gov.in/judis/ A.S.Nos.645 of 2016 P.T. ASHA, J.
kan A.S.No.645 of 2016 20.10.2021 23/23 https://www.mhc.tn.gov.in/judis/