Madras High Court
V.Arumugam vs R.Chandrasekaran on 26 May, 2016
Author: R.Mahadevan
Bench: R.Mahadevan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26.05.2016 CORAM THE HONOURABLE MR.JUSTICE R.MAHADEVAN S.A.(MD)No.951 of 2008 1.V.Arumugam 2.V.K.Paramasivam 3.A.Muthulakshmi 4.A.Silamparasan 5.A.Veeramani 6.Minor A.Divya 7.Chinnathal : Appellants [Appellants 3 to 7 are brought on record as LRs of the deceased first appellant, vide order dated 20.01.2011 made in MP.(MD).Nos.1 to 3 of 2010 in S.A.(MD).No.951 of 2008] Vs. 1.R.Chandrasekaran 2.R.Rajasekaran : Respondents PRAYER: Second Appeal is filed under Section 100 of the Code of Civil Procedure against the Judgment and Decree passed in A.S.No.2 of 2004, dated 11.04.2005, on the file of the Appellate Authority/Principal Sub Court, Thanjavur, reversing the Judgment and Decree passed in O.S.No.294 of 1997, dated 04.03.2004, on the file of the District Munsif, Thanjavur. !For Appellants : Mr.K.Srinivasan Senior Counsel For Mr.M.P.Senthil ^For Respondents : Mr.M.Vallinayagam Senior Counsel For Ms.J.Maria Roseline :JUDGMENT
The Second Appeal has been filed challenging the Judgment and Decree dated 11.04.2005, made in A.S.No.2 of 2004, on the file of the Appellate Authority/Principal Sub Court, Thanjavur, reversing the Judgment and Decree, dated 04.03.2004, made in O.S.No.294 of 1997, on the file of the learned District Munsif, Thanjavur.
2. The case of the plaintiffs, as culled out from the plaint for the purpose of disposal of the Second Appeal, is as follows:-
The suit property is a landed property, which belonged to the first defendant. In the month of February 1991, the first defendant was engaged in construction of house at Thanjavur. He was in need of money. At that time, the plaintiff was employed as an officer at Indian Bank Branch, Karol Bagh, New Delhi. Therefore, the first defendant wrote a letter, dated 03.02.1991, requesting the plaintiff to give a sum of Rs.25,000/- to meet out his financial commitments. Thereafter, the plaintiff visited Thanjavur to perform "Manai Muhoortham Ceremony" in his Plot No.11, VNS Gardens, Thanjavur, on 06.03.1991. At that time, the first defendant entered into an oral agreement with the plaintiff to sell the suit properties for a sum of Rs.15,000/- to the plaintiff. As per the terms of the agreement, the plaintiff paid the said sale consideration of Rs.15,000/- to the first defendant, on 06.03.1991, itself on which date, the first defendant was engaged in assisting the plaintiff for the better performance of "Manai Muhoortham Ceremony". The entire negotiation of oral sale agreement and payment of Rs.15,000/- by the plaintiff to the first defendant was made in the presence of well-wishers and friends, viz., Mr.Padmanaban of VNS Garden, Arulanantha Nagar, Thanjavur and Mr.Mahalingam, Vanakkara Street, Manambuchavadi, Thanjavur. On 06.03.1991, itself the plaintiff took possession of the suit lands in the presence of the above said two witnesses in pursuance of the sale transaction. The plaintiff was in effective possession and enjoyment of the suit properties as a purchaser on the basis of an oral agreement of sale.
2.1. It has been further averred in the plaint that the plaintiff, in view of the close relationship with the first defendant, did not insist to obtain a written document from the first defendant evidencing the oral agreement of sale and payment of the sale amount. However, the first defendant had given consent to execute a registered sale deed as and when required by the plaintiff. The plaintiff has all along been ready and willing to perform his part of the contract. The plaintiff was insisting the first defendant to execute a registered sale deed in respect of the suit properties, after his transfer from New Delhi to Thanjavur District. Since the first defendant was evading to perform his part of the contract by quoting one reason or the other, the plaintiff gave a telegram, dated 10.04.1997, calling upon the first defendant to inform his convenience and the date for execution of registered sale deed in respect of the suit properties. As there was no response, subsequently, the plaintiff issued an advocate notice dated 10.04.1997 to the first defendant calling upon him to execute the sale deed. However, the said notice was returned "as refused".
2.2. In such circumstances, the plaintiff filed the suit seeking to pass a decree for specific performance of contract directing the defendants 2 and 3 and the first defendant jointly to execute registered sale deed covering the suit properties, in default to execute sale deed in his favour and in the alternative, if the Court is not inclined to pass decree for specific performance seeking direction to the first defendant for refund of sale consideration with interest and for the relief of permanent injunction restraining the defendants 1 to 3 from interfering with his peaceful possession and enjoyment of the suit properties.
3. A Written Statement was filed by the first defendant contending that the plaintiff and the first defendant are brothers. The first defendant is the absolute owner of the suit property and he was in possession and enjoyment of the same. He sold the said property to the defendants 2 and 3, on 05.05.1997, by way of a registered sale deed. Thus, according to the defendants, there was no agreement for sale as alleged in the plaint. It has been further averred in the Written Statement that the first defendant entered into an oral agreement, on 06.03.1991, in the presence of one Padmanaban and Mahalingam while attending/assisting "Manai Muhoortham Ceremony" at ' Arulanantha Nagar is false. Likewise, the allegation that the defendant took the plaintiff and the witnesses to the suit village and identified the suit property and handed over the possession are all false.
The plaintiff was not in possession of the suit property either on the date of the filing of the suit or earlier or subsequent to the filing of the suit. The plaintiff being the elder brother was keeping the family documents and paying kists and other payments by collecting the same from the defendants and the other brothers. Taking advantage of the said fact, the plaintiff is now using the same against the defendants. The first defendant derived title to the suit property through registered settlement deed, dated 15.12.1974 and ever since then, he was in possession of the suit property. After the plaintiff refused, the first defendant procured loan in Mercantile Bank by crediting charge in the property. The defendants 2 and 3 entered into sale agreement prior to the notice and caveat of the plaintiff and that is why, notice and caveat were sent by the plaintiff to all the defendants. Based on the agreement, possession was given on the same date to the defendants 2 and 3 and the registration of sale was also effected on 05.05.1997.
4. An Additional Written Statement was filed by the first defendant stating that the claim of the plaintiff seeking alternative relief of refund of sale consideration is not maintainable either on facts or on law, as it is evident from that letter dated 28.04.1991, wherein the plaintiff has clearly admitted that he is in need of money for his house construction and so, he was unable to arrange money to purchase the land of the first defendant. Thus, according to the first defendant, the suit is barred by limitation and hence, the suit was liable to be dismissed.
5. A Written Statement was filed by the third defendant, which was adopted by the second defendant contending that the first defendant is the absolute owner of the suit property and he sold the suit property to the second defendant through registered sale deed dated 05.05.1997 and he raised black gram in the suit property and harvested the same. The plaintiff having failed in his attempt to purchase the property from first defendant, now, came forward with a statement that there was an oral agreement between them. The plaintiff was not in possession of the suit property either before the date of filing of the suit or on the date of the suit or subsequent to the suit.
6. An Additional Written Statement was filed by the second defendant, which was adopted by the third defendant stating that the third defendant purchased the suit property without notice of the alleged oral purchase by the plaintiff. After purchase by the third defendant, he was in absolute possession and enjoyment of the suit property and thus, the additional relief claimed by the plaintiff was belated one and it was not maintainable either on facts or law.
7. Based on the above facts, the Trial Court framed appropriate issues. On the side of the plaintiff, three witnesses were examined as PW-1 to PW-3 and as many as 16 documents were marked as EX-A1 to EX-A16. On the side of the defendants, three witnesses were examined as DW-1 to DW-3 and as many as twelve documents were marked as EX-B1 to EX-B12. Having considered all the above, the Trial Court, by Decree and Judgment dated 04.03.2004, dismissed the suit holding that there was an oral agreement of sale in between the plaintiff and the first defendant on 06.03.1991 and that in pursuance of the said sale agreement, the first defendant had received a sum of Rs.15,000/- from the plaintiff. The Trial Court, on the issue of limitation, held against the plaintiff, by holding that the plaintiff had approached the Court after lapse of six years subsequent to the oral agreement of sale on 06.03.1991 and therefore, the plaintiff was not entitled to any relief. Assailing the correctness of the Decree and Judgment passed by the Trial Court, A.S.No.41 of 2004 was filed. The First Appellate Court, after evaluating the evidence adduced by both the parties, upheld the case of the plaintiff that there was an oral agreement of sale between the plaintiff and the first defendant on 06.03.1991 and that in pursuance of the oral agreement of sale, the first defendant had received a sum of Rs.15,000/- from the plaintiff towards sale consideration. The Lower Appellate Court, on the issue of limitation, has held that the suit was filed within time, inasmuch as the period of limitation of three years would be the date from the accrual of cause of action and accordingly, set aside the Judgment and Decree passed by the Trial Court. That is how, the appellants are now before this Court with this Second Appeal.
8. When the Second Appeal was admitted, on 18.09.2008, this Court framed the following substantial question of law:-
"Whether the Lower Appellate Court is right in granting the decree of specific performance of an oral agreement when the suit itself is barred by limitation as per Section 54 of the Limitation Act?."
9. I have heard the learned Senior Counsel appearing for the appellants, the learned Senior Counsel appearing for the respondents and I have also gone through the materials available on record carefully, including the Judgments rendered by the Courts below.
10. Mr.K.Srinivasan, learned Senior Counsel appearing for the appellants, submits that the first respondent herein filed the suit in O.S.No.294 of 1997, on the file of the learned District Munsif, Thanjavur, seeking for specific performance, on the basis of oral agreement dated, 06.03.1991. Absolutely, there is no oral agreement as alleged by the first respondent/plaintiff. It is further contended that the appellants are bona fide purchasers of the suit schedule property from the second respondent, by way of registered sale deed, dated 05.05.1997 and consideration was also paid to him and ever since from the date of purchase, viz., on 05.05.1997, they have been in exclusive possession and enjoyment of the property, without any interference whatsoever. Thus, according to the learned Senior Counsel, the alleged oral agreement of sale has not been established by any independent evidence. The first respondent/plaintiff has not proved the alleged oral agreement dated 06.03.1991 with cogent evidence. Even as per the version of the first respondent/plaintiff, the suit filed by the plaintiff on 22.04.1997 is clearly barred by Section 54 of the Limitation Act, 1963, as it was not filed within three years from the alleged oral agreement. The learned Senior Counsel further submits that there cannot be any part performance in an oral agreement as alleged by the first respondent/plaintiff, as the same is contradictory to the provisions of Section 53-A of the Transfer of Properties Act, 1882.
11. The learned Senior Counsel also submits that the alleged oral agreement, dated 06.03.1991 was executed in the presence of PW-2 and PW-3, who are all interested witnesses for the plaintiff and except them, no other witnesses were examined. Incontrovertibly, the alleged oral agreement was pursuant to the letter marked as EX-A2. However, by a communication, dated 28.04.1991, the first respondent/plaintiff expressed his difficulties in mobilizing funds, which is marked on the side of the appellant as EX-B1. It could be seen from EX-B1 that there is no reference about the alleged oral agreement dated 06.03.1991. The learned Senior Counsel further submits that the kist receipts alleged to have been paid under EX-A1 EX-A2, EX-A3 and EX- A4 cannot be accepted to prove possession, especially, when the title has not been vested with the plaintiff. Moreover, even as per the version of the first respondent/plaintiff, absolutely, there is no ready and willingness on the part of the plaintiff, as, admittedly, as per the cause of action, he sent legal notice only on 20.04.1997, viz., after lapse of six years. Thus, according to the learned Senior Counsel, the first respondent/plaintiff cannot maintain the suit on the cause of action that legal notice was refused on 27.04.1997 for the alleged oral agreement dated 06.03.1991.
12. It is further submitted by the learned Senior Counsel that both the Courts below erred in law in not adverting to the crucial facts that as per the boundaries of the suit schedule properties, the first respondent/plaintiff is adjacent land owner on the southern side of the suit schedule property. Thus, the deposition of the witnesses viz., PW-2 and PW-3, who are all interested parties to prove the alleged oral agreement is nothing but untrue and both the evidences given by both the witnesses cannot be accepted in the eye of law. Absolutely, no document was produced on the side of the first respondent/plaintiff to prove the alleged oral agreement as well as the ready and willingness, except EX-A2, EX-A3 and EX-A4, the Kist receipts. Among the above documents, only EX-A4 dated 25.03.1997 stands in the name of the first respondent/plaintiff, which was obtained just prior to the filing of the suit on 22.04.1997 and the other receipts/exhibits stand in the name of others. The first respondent/plaintiff has not proved the oral agreement with proper evidence. Further, the documents filed by the first respondent/plaintiff, like caveat, kist receipts are only an attempt to create evidence to prove the alleged oral agreement. The Judgment and Decree passed by the Lower Appellate Court is not sustainable under law, as there was no document marked as EX-A17 on the side of the first respondent/plaintiff. However, the Lower Appellate Court proceeded merely on the assumption and presumption and allowed the Appeal Suit only on the basis of EX-A17 and set aside the well considered Judgment and Decree passed by the Trial Court.
13. It is also submitted by the learned Senior Counsel that both the Courts below have failed to advert to yet another crucial fact that the documents marked on the side of the appellants as EX-B1, dated 28.04.1991, being the reply sent by the first respondent/plaintiff to his brother, the respondent herein, stating that he has no sufficient means as of now to help the second respondent. In EX-B1, dated 28.04.1991, absolutely, there is no whisper about the oral agreement, as alleged by the first respondent/plaintiff executed on 06.03.1991. The first respondent/plaintiff fully aware of the sale transaction held between the second respondent and the appellants, which clearly reveals from the caveat filed by the first respondent/appellant dated 20.04.1997.
14. The learned Senior Counsel, in support of his contention, relies on the following decisions, with regard to failure on the part of the first respondent/plaintiff to perform the contract within a reasonable time:-
Smt.Chand Rani [dead] by Lrs. Vs. Kamal Rani [dead] by LRs., reported in AIR 1993 SC 1742;
K.S.Vidyanadam V.Vairavan, reported in AIR 1997 SC 1751 and P.Purushottam Reddy and another Vs. M/s.Pratap Steels Ltd., reported in AIR 2002 SC 771.
15. The suit filed by the first respondent/plaintiff is barred by limitation, as per Section 54 of the Limitation Act, 1963. For this proposition, the learned Senior Counsel relies on the following decisions:-
Syed Basha Vs. Doraikannu, reported in 1999 (1) MLJ 433 and Suryagandhi Vs. Lourduswamy, reported in 2003 (2) LW 98.
16. The learned Senior Counsel further relies on a decision of this Court in K.Jayakumar Vs. Robert and others, reported in 2002 (2) MLJ 112, wherein, it has been held that the delay in sending notice and filing a suit by the plaintiff for specific performance is fatal to the case.
17. The learned Senior Counsel further submits that the first respondent/plaintiff, who came to the Court with a false case in material ingredients necessary for the grant of relief of specific performance, is not entitled for the relief sought for. For this proposition, the learned Senior Counsel makes reliance on a decision of a Division Bench of this Court in Chelliah Nadar, G Vs. V.Periasami Nadar, reported in 1993 (2) LW 84.
18. The learned Senior Counsel further submits that the readiness and willingness to perform the agreement of sale should be shown continuously from the date of agreement till the date of hearing of the suit. However, in this case, according to the learned Senior Counsel, the first respondent/plaintiff has all along not been ready and willing to perform his part of the contract. For the above said proposition, the learned Senior Counsel makes reliance on the following decisions:-
Indravathi Vs. Kamala, reported in 2000 (3) MLJ 106 and Chinnakannu Naidu and another Vs. Chinnappan, reported in 2008 (3) MLJ 1478.
19. The learned Senior Counsel further submits that the lethargic attitude on the part of the first respondent/plaintiff would dis-entitle him from getting the relief of specific performance. For a long lapse of six years, the first respondent/plaintiff has not given plausible or convincing reasons, for which the learned Senior Counsel relies on a Judgment of this Court in P.Jaswant Kumar Vs. M.Rajashekar, reported in 2013 (3) MWN (Civil)
330.
20. Making reliance on a Judgment of the Hon'ble Supreme Court in Padmakumari Vs. Dasayyan, reported in 2015 (6) CTC 545 and also a Judgment of this Court in K.Rajendran Vs. K.Chinnappa Gounder reported in 2014 (4) LW 686, the learned Senior Counsel submits that the remedy for bona fide purchaser in a case for specific performance is under Section 19(b) of the Specific Relief Act, 1963, which protects the interests of the subsequent purchaser.
21. On the other hand, Mr.M.Vallinayagam, learned Senior Counsel appearing for the respondents, reiterating the averments made in the Written Statement filed by the respondents, submits that the Trial Court, on a careful examination of the evidence deposed by PW-1 to PW-3 and DW-1 to DW-3 and also the exhibits marked on both sides, upheld the case of the plaintiff that there was an oral agreement of sale between the plaintiff and the first defendant on 06.03.1991 and in pursuance of the sale agreement, the first defendant had received a sum of Rs.15,000/- from the plaintiff. The Trial Court, on the issue of limitation, held against the plaintiff that the plaintiff approached the Court after lapse of six years subsequent to the oral agreement of sale and thus, the plaintiff is not entitled for the relief sought for. The learned Senior Counsel further submits that PW-2 and PW-3 have spoken about the witnessing of oral agreement of sale between the plaintiff and the first defendant during Manaimuhurtham Ceremony held at the plot of the plaintiff on 06.03.1991 and also about the payment of entire sale consideration of Rs.15,000/- by the plaintiff to the first defendant, on 06.03.1991.
22. The learned Senior Counsel further submits that the Trial Court held that even though oral sale agreement was made on 06.03.1991, according to the plaintiff, he had issued telegram and Advocate Notice only on 10.04.1997 requesting him to execute the sale in his favour and thus, the evidence of PW-1 that when he came to Tanjore in the year 1994, he had requested the first respondent to execute the sale deed in his favour is false and therefore, the suit for specific performance is barred by limitation. The said finding, according to the learned Senior Counsel, cannot be allowed to stand, as, in the present case, there was no time limit fixed within which the plaintiff should get the sale deed executed and thus, the time was not the essence of the contract. The period of limitation, according to the learned Senior Counsel, starts from the date when the plaintiff got notice of refusal from the defendant. Thus, the period of limitation commenced from 10.04.1997, the date on which the notice was received from the plaintiff.
23. The learned Senior Counsel also submits that the First Appellate Court, after evaluating the evidence adduced by both the parties, affirmed the case of the plaintiff that there was an oral agreement of sale between the plaintiff and the first defendant on 06.03.1991 and that pursuant to the oral agreement of sale, the first defendant received a sum of Rs.15,000/- from the plaintiff towards sale consideration. The First Appellate Court, on the basis of limitation, held that the suit was was within time, as the period of limitation of three years would be the date from the accrual of cause of action. Thus, according to the learned Senior Counsel, the Judgment and Decree passed by the First Appellate Court does not require any interference at the hands of this Court.
24. The learned Senior Counsel, in support of his contentions, makes reliance on the following Judgments:-
A.Ramanathan Chettiar Vs. R.Ranganayaki and others, reported in 2008 (2) CTC 265;
M.M.S.Investments, Madurai and others, V.Veerappan and others, reported in 2008 1 LW 62 and K.Prakash Vs. B.R.Samkpath Kumar, reported in 2015 2 LW 419.
25. I have considered the above submissions.
26. The Trial Court, on a careful consideration of the evidence deposed by PW-1 to PW-3, DW-1 to DW-3 and also the exhibits marked on both sides, upheld the case of the plaintiff that there was an oral agreement of sale between the plaintiff and the first defendant, on 06.03.1991. In pursuance of the oral agreement, the first defendant had received a sum of Rs.15,000/- from the plaintiff. However, the Trial Court, on the question of limitation, held against the plaintiff that the plaintiff approached the Court after lapse of six years subsequent to the oral agreement of sale and thus, the plaintiff is not entitled for the relief sought for.
27. According to the learned Senior Counsel, PW-2 and PW-3 are interested witnesses and therefore, their evidences are required a close scrutiny and if such a scrutiny is made, their evidences are liable to be rejected. However, this Court is of the considered view that on that score alone, their evidences cannot be outright rejected, if their evidences inspire the confidence of the Court. In this case, a close and careful reading of the evidences adduced by PW-2 and PW-3 would go a long way to show that they have spoken vividly about the witnessing of oral agreement of sale between the plaintiff and the first defendant, during Manaimuhurtham Ceremony held, on 06.03.1991, at the plot of the plaintiff and also about the payment of entire sale consideration of Rs.15,000/- by the plaintiff to the first defendant, on 06.03.1991. By virtue of Sections 16 and 20 of the Specific Relief Act, 1963, once an agreement to sell the property is found to be legal and it is validly proved, the Court has to exercise its discretion in favour of granting relief for specific performance. However, such discretion must be exercised in accordance with the sound and reasonable judicial principles, [vide K.Prakash Vs. B.R.Samkpath Kumar, reported in 2015 2 LW 419]. In the case on hand, on consideration of the evidences of PW-2 and PW-3, the Trial Court has come to the categorical conclusion that there was an oral agreement for sale on 06.03.1991 and the First Appellate Court has rightly confirmed the said finding arrived at by the Trial Court.
28. Now coming to the question of limitation, from the evidence of PW-2 and PW-3, it is clear that there was no time limit fixed within which the plaintiff should get the sale deed executed and thus, the time was not the essence of the contract. The period of limitation starts from the date when the plaintiff got notice of refusal from the defendant. Thus, the period of limitation commenced from 10.04.1997, the date on which the notice was received from the plaintiff.
29. The Trial Court, after evaluating the evidence adduced by both the parties, affirmed the case of the plaintiff that there was an oral agreement of sale between the plaintiff and the first defendant on 06.03.1991 and that pursuant to the oral agreement of sale, the first defendant received a sum of Rs.15,000/- from the plaintiff towards sale consideration. The First Appellate Court, on the basis of limitation, held that the suit was within time, as the period of limitation of three years would be the date from which the plaintiff noticed the refusal of performance of contract by the first defendant. Section 54 of the Limitation Act, 1963, states that the limitation starts from the date fixed for the performance or if no such date is fixed, the limitation starts from the date when the plaintiff got notice that the performance of contract was refused. Thus, in this case, though agreement is proved through the evidences of PW-2 and PW-3, it is also clear from their evidence that there was no time limit fixed for execution of sale deed. In such circumstances, as per Section 54 of the Limitation Act, 1963, for filing a suit for specific performance, in the facts and circumstances of this case, starts from the date when the plaintiff got notice about the refusal of performance of contract by the first defendant. Thus, the Judgment and Decree passed by the First Appellate Court does not require any interference at the hands of this Court. On appreciating the oral and documentary evidence, the First Appellate Court below has concluded, on facts, that the suit was filed within time, as the period of limitation of three years would be the date from the accrual of cause of action. This is essentially a question of fact, which cannot be re-opened in this Second Appeal, unless the said conclusion, arrived at by the Courts below, is shown to be perverse in legal sense. Therefore, the only substantial question of law, relating to the period of limitation raised by the appellants is liable to be answered against them and accordingly, it is answered.
30. In view of the foregoing reasons, the Second Appeal fails and hence, it is dismissed. No costs.
To
1.The Appellate Authority/Principal Sub Court, Thanjavur.
2.The District Munsif, Thanjavur..