Madras High Court
M.Prabhavathi vs K.Chandra (Died) on 2 September, 2022
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 01.08.2022
Pronounced on :02.09.2022
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
S.A.Nos.1791 & 1792 of 2001
and
S.A.No.614 of 2015
Cause title in S.A.Nos.1791 & 1792 of 2001:
M.Prabhavathi ...Defendant/Appellant/Appellant
(in S.A.No.1791 of 2001)
M.Prabhavathi ...Plaintiff/Appellant/Appellant
(in S.A.No.1792 of 2001)
Vs.
1.K.Chandra (died)
2.R.Palaniappan ...Plaintiff 1 & 2 / Respondents 1 & 2
3.Indrani Palaniappan ...Respondents(in S.A.No.1791 of 2001)
R3 brought on record as LRs of the
deceased R1 viz., K.Chandra vide
Court order dated 17.09.2021 made in
CMP.No.12773, 12776 & 12778 /
2021 in S.A.No.1791 of 2001 (RHJ).
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2
1.R.Palaniappan
2.K.Chandra ...Defendants / Respondents /
3.Indrani Palaniappan Respondents (in S.A.No.1792 of 2001)
R3 brought on record as LRs of the
deceased R2 viz., K.Chandra vide
Court order dated 17.09.2021 made in
CMP.Nos.12781, 12784 & 12786 of
2021 in S.A.No.1792 of 2001 (RHJ).
Prayer in S.A.No.1791 of 2001: The Second Appeal filed under Section
100 of CPC, against the judgment and decree made in A.S.No.81 of 1998
dated 28.06.1999 on the file of the Principal District Court, Coimbatore
confirming the judgment and decree made in O.S.No.203 of 1995 dated
11.09.1997 on the file of the Sub Court, Tiruppur.
Prayer in S.A.No.1792 of 2001: The Second Appeal filed under Section
100 of CPC, against the judgment and decree made in A.S.No.82 of 1998
dated 28.06.1999 on the file of the Principal District Court, Coimbatore
against the judgment and decree made in O.S.No.11 of 1992 dated
11.09.1997 on the file of the Sub Court, Tiruppur.
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3
Cause title in S.A.No.614 of 2015:-
M.Prabhavathi ...Plaintiff/Appellant/Appellant
Vs.
R.Palaniappan ...Defendant/Respondent/Respondent
Prayer: The Second Appeal filed under Section 100 of CPC, against the
judgment and decree made in A.S.No.117 of 2008 dated 12.03.2015 on the
file of the Principal District Court, Coimbatore confirming the judgment and
decree made in O.S.No.687 of 1994 dated 30.03.2005 on the file of the Sub
Court, Tiruppur.
For Appellant : Mr.C.R.Prasanan, (in all SAs.)
For Respondent : Mr.M.Sriram (in all SAs.)
COMMON JUDGMENT
All the three Second Appeals arise on the same contractual relationship among the parties but however, there was necessity to institute three separate suits.
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2.The Second Appeals have been tagged together by orders of the Hon'ble the Acting Chief Justice dated 17.12.2021.
3.The plaintiff M.Prabhavathi in O.S.No.11 of 1992 on the file of the Sub Court Tiruppur is the appellant in S.A.No.1792 of 2001.
4.The said suit in O.S.No.11 of 1992 had been filed by the plaintiff, M.Prabhavathi, against R.Palaniyappan and his sister-in-law K.Chandra before the Sub Court, Tiruppur, seeking a judgment and decree of permanent injunction restraining the defendants from disturbing her peaceful possession of the suit property and for a mandatory injunction directing the 1st defendant to give a consent letter to her/the plaintiff, for transferring or assigning the quarry license standing in his name for carrying on quarry business as before and for costs of the suit.
5.The property described in the schedule were 6 acres of land in S.No.291/1, Pachapalayam Village, Palladam Taluk, Coimbatore. There was another property namely, lands measuring 5.78 ½ acres in S.F.Nos.243/2, https://www.mhc.tn.gov.in/judis 5 248/9, 248/10, 250/3 and 248/1 in Kallapalayam Village, Palladam Taluk, Coimbatore, fitted with machineries namely, Marshal crushing machine with 3 HP electric motor and old 5 HP oil engine, chain block with 5 ton capacity, welding machine 20 HP and two sheds in S.No.291.
6.The aforementioned defendants K.Chandra and R.Palaniyappan filed O.S.No.203 of 1995 before the Sub Court Tiruppur, against M.Prabhavathi, the plaintiff in O.S.No.11 of 1992, seeking a judgment and decree to declare a Varthamanam letter dated 14.04.1991 alleged to have been signed and executed by the 1st plaintiff K.Chandra in favour of the defendant M.Prabhavathi as illegal and null and void and unenforceable and for a consequential permanent injunction restraining the defendant from interfering with the peaceful possession of the plaintiff's in the suit property.
7.The suit property was the same as the second schedule mentioned in O.S.No.11 of 1992 namely, lands measuring 5.78 ½ acres of land fitted with machineries in Kallapalayam Village, Palladam Taluk, Coimbatore. https://www.mhc.tn.gov.in/judis 6
8.Joint trial was conducted in both the suits and by common judgment dated 11.09.1997, the Sub Judge Tiruppur, dismissed O.S.No.11 of 1992 and decreed O.S.No.203 of 1995.
9.Aggrieved by such judgment, M.Prabhavathi filed A.S.No.81 of 1998 questioning the decree in O.S.No.203 of 1995 and A.S.No.82 of 1998 questioning the dismissal of O.S.No.11 of 1992 before the Principal District Court, Coimbatore.
10.By common judgment dated 28.06.1999, the Principal District Judge, Coimbatore, dismissed both the appeal suits and confirmed the judgments and decrees of the Trial Court.
11.Thereafter, the plaintiff in O.S.No.11 of 1992, M.Prabhavathi filed S.A.No.1792 of 2001. She was the defendant in O.S.No.203 of 1995 and she filed S.A.No.1791 of 2001. Pending the appeal, K.Chandra one of the defendants died and her legal representative was brought on record as the 3rd respondent.
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12.In both the aforementioned suits namely, O.S.No.11 of 1992 and 203 of 1995, injunctions and mandatory injunctions were sought consequent to an agreement of sale with respect to the 6 acres of land entered into between M.Prabhavathi and R.Palaniappan on 27.03.1991 and another agreement also dated 27.03.1991, but with respect to purchase of machineries, in the adjoining land measuring 5.78 ½ acres.
13.M.Prabhavathi also filed O.S.No.687 of 1994 before the Sub Court at Tiruppur seeking specific performance of the agreement dated 27.03.1991 with respect to lands measuring 6 acres. By judgment dated 30.03.2005, the said suit was dismissed. She then filed A.S.No.117 of 2008 before the Principal District Court, Coimbatore. By judgment dated 12.03.2015, the said appeal suit was also dismissed. She then filed S.A.No.614 of 2015.
14.In view of the fact that the lis surrounds the agreements entered into between the parties with respect to the same schedule land and also with respect to the same object and injunctions were sought consequent to payment of advance amount and alleged execution of a further document and specific performance was sought on the very same agreement dated https://www.mhc.tn.gov.in/judis 8 27.03.1991, even though, O.S.No.687 of 1994 had been tried separately and judgment delivered separately and the consequent appeal suit also taken up separately, it would only be prudent that a common judgment is passed in all the three Second Appeals, since the discussions overlap, the documents on record overlap and the argument of the learned counsels also overlapped.
15.All the three Second Appeals have been admitted on separate substantial questions of law, but they all converge to examine grant or otherwise of the relief of specific performance of the agreement dated 27.03.1991 entered into between the M.Prabhavathi and R.Palaniappan.
16.S.A.No.1791 2001 had been admitted on 12.12.2001 on the following three substantial questions of law:-
“1.Whether in law the Courts below have erred in holding that the Ex.A6 was null and void, on accepting the report and oral evidence of the expert, when both the contrary to each other and when the documents from which the signatures were compared with Ex.A6 had not come into https://www.mhc.tn.gov.in/judis 9 existence prior to the existence of Ex.A6 to as laid down in the dictum reported in 1999 II CTC 156?
2.Whether in law, the Courts below erred in overlooking that the plaintiff, having admitted the sale agreement in Ex.A1 and Ex.A2 and the appellant's possession of the land belonging to the second plaintiff and having failed to prove their plea of recovery of possession, the second plaintiff was estopped by conduct to approbate and reprobate against the recitals of Ex.A6?
3.Whether in law the Courts below erred in holding that Ex.A6 was unilateral without the appellant's signature overlooking that the same would not vitiate the Ex.A6?”
17. S.A.No.1792 of 2001 had been admitted on 12.12.2001 on the following three substantial questions of law:
“1.Whether in law the courts below are right in holding that the suit for injunction to protect appellant's possession is not maintainable, when the suit for specific performance is pending, overlooking that the transferee can maintain the suit https://www.mhc.tn.gov.in/judis 10 as laid down in the judgment reported in 1988 1 LW 563, 1987 TLNT 352 and 1993 I MLJ 576?
2.Whether in law, the Courts below erred in overlooking that the appellant's possession to the lands belonging to the second defendant was admitted and when the plea of recovery of possession was not proved followed by permission to quarry, even assuming it to be licence, still the same is referable to a contract of sale and Section 53-A of the Transfer of Property Act, could be invoked?
3.Whether in law the Courts below erred in holding that the Ex.A6 was null and void on accepting the report and oral evidence of the expert, when both are contrary to each other and when the documents from which signatures were compared with Ex.A6 had not come into existence prior to the existence of Ex.A6 as laid down in the dictum reported in 1999 III CTC 156?”
18.S.A.No.614 of 2015 had been admitted on 30.06.2022 on the following three substantial questions of law:-
https://www.mhc.tn.gov.in/judis 11 “1.Whether in a contract for immovable property, time is of essence for the performance of the contract and while examining that particular aspect, what are the parameters which the Court should devolve into?
2.Whether when a plaintiff specifically comes to Court on the basis that possession had been granted on the basis of an agreement and seeks specific performance, the Courts below were right in deciding that the benefit under Section 53A of the Transfer of Property Act would not enure to the plaintiff/appellant herein.
3.When a suit for specific performance was filed within the period of limitation as provided under Article 54 of the Limitation Act, 1963 can the Courts overlook that particular aspect and still negative the relief and hold that the plaintiff is not entitled for specific performance?” O.S.No.11 of 1992:-
19.The plaintiff M.Prabhavathi claimed that the 1st defendant R.Palaniyappan was the owner of the property measuring 6 acres in S.No.291/1, Pachapalayam Village, Palladam Taluk, Coimbatore and that he https://www.mhc.tn.gov.in/judis 12 had entered into an agreement of sale of the said lands with the plaintiff for a total consideration of Rs.5,00,000/-. The lands can be utilized for quarrying purposes. An advance of Rs.90,000/- has been paid. The time for performance of the agreement was fixed at six months. A further advance of Rs.75,000/- was paid on 19.06.1991, and an endorsement was made in the agreement itself. The plaintiff claimed that she was put in possession.
20. It was further claimed that the 1st defendant R.Palaniyappan would get the license for carrying on quarrying and mining business from the District Collector, Coimbatore and duly transfer it in the name of the plaintiff.
21. On the same day, a separate agreement was entered into with respect to the sale of machineries which are required to carry out quarry business and also with respect to a lorry and two telephone connections. The sale price of the lorry was determined at a sum of Rs.4,50,000/-. An advance of Rs.1,00,000/- had been paid. Again the time limit was determined at six months. A further advance of Rs.75,000/- was paid on 19.06.1991. It was also endorsed in the agreement.
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21.The plaintiff claimed that possession had been handed over of the lorry and the telephone connections and also the machineries. It was stated that the machineries were situated in the lands at S.Nos.247/2, 248/9, 248/10, 250/3 and 248/1 measuring 5.78 ½ acres in Kallapalayam Village, Palladam Taluk, Coimbatore.
22.It had been stated that though both the lands were situated in two separate villages, they were contiguous. The plaintiff claimed that she was ready and willing to perform her part of the agreement namely, to pay the balance sale consideration. It was stated that the plaintiff paid a further sum of Rs.85,000/- to a creditor of the 1st defendant with respect to the aforementioned lorry. The plaintiff also paid the telephone charges. The plaintiff also paid the instalments charges for the machineries.
23.The 2nd defendant, K.Chandra was the owner of the lands measuring 5.78 ½ acres. The 1st defendant held out that he would get her consent in the form of a Varthamanam letter in favour of the plaintiff. It was claimed that the 2nd defendant also executed such letter on 14.04.1991 with https://www.mhc.tn.gov.in/judis 14 respect to the said lands and the machineries therein. The possession of the said lands had also been handed over to the plaintiff. Though the plaintiff was ready and willing to perform her part of the agreement, it was claimed that the 1st defendant evaded the plaintiff.
24.The 1st defendant then issued a notice on 25.10.1991, wherein, though he admitted the possession of the plaintiff by virtue of the two agreements, he stated that the plaintiff was not ready and willing to complete the sale. The plaintiff issued a reply dated 23.11.1991 and stated that the defendants had not come forward to fulfil their obligations under the two sale agreements. It was under these circumstances that the suit was filed seeking permanent injunction to protect possession of the two lands and the machineries and for a mandatory injunction to transfer the quarry license to the name of the plaintiff.
25.The 1st defendant filed a written statement admitting the fact that he had entered into an agreement on 27.03.1991 with the plaintiff and also admitting the receipt of advance of Rs.90,000/- and further advance of Rs.75,000/- on two separate dates. It was however stated that time was the https://www.mhc.tn.gov.in/judis 15 essence of the agreement and six months period was fixed under the agreement. The agreement expired on 26.09.1991. The defendant specifically denied that the plaintiff was put in possession of the suit lands.
26. He also admitted having entered into a second agreement again on the same day on 27.03.1991 with respect to the adjacent lands of his sister- in-law and the machineries thereon.
27. He however denied that the plaintiff was put in possession of the suit lands. He denied that the plaintiff was ready and willing to pay the balance sale consideration as expected. He stated that the incidental expenses incurred by the plaintiff towards lorry, telephone charges and other expenses were pursuant to the agreement. He stated that he had never agreed to get a consent letter or varthamanam letter from the 2 nd defendant. He stated that the plaintiff had forged a varthamanam letter said to have been signed by the 2nd defendant on 14.04.1991. He stated that the 2nd defendant never agreed to sell her lands. He stated that the recitals in the varthamanam letters were all false. He further stated that the plaintiff did https://www.mhc.tn.gov.in/judis 16 not have funds to perform her part of the agreement. He also stated that he had sent a re-joinder on 23.01.1992 to the reply given by the plaintiff. He stated that the suit should be dismissed.
28.The 2nd defendant also filed a written statement claiming that she had never authorized the 1st defendant to sell her lands in Kallapalayam Village, Palladam Taluk, Coimbatore. She claimed that she had no intention to sell the lands. She specifically denied executing a varthamanam letter dated 14.04.1991. She stated that she had never come down to Coimbatore on that particular date. She claimed that she was permanently employed at Chennai and had never seen the plaintiff. She stated that the agreement entered into between the plaintiff and the 1st defendant with respect to her lands are non-est and void and that she had never agreed to sell the lands. She therefore stated that the suit should be dismissed.
29.On the basis of the above pleadings, the following issues were framed:-
“1.Whether the suit is maintainable?
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2.Whether the plaintiff is entitled to the benefit under Section 53A of the Transfer of Property Act, 1882?
3.Whether the plaintiff was ready and willing to perform her part of the agreement?
4.Whether the varthamanam letter dated 14.04.1991 is a true and genuine document?
5.Whether the Collector Coimbatore District was a necessary party to the suit and whether the suit is affected by non-joinder of such necessary party?
6.Whether the relief of mandatory injunction had lapsed owing to efflux of time?
7.Whether the plaintiff is entitled to the relief of permanent injunction?
8.Whether the plaintiff is entitled to the relief of mandatory injunction?
9.To what other relief is the plaintiff entitled?” O.S.No.203 of 1995:-
30.This suit had been filed by K.Chandra and Palaniappan against Prabhavathi who was the plaintiff in O.S.No.11 of 1992. The 1 st plaintiff, https://www.mhc.tn.gov.in/judis 18 K.Chandra claimed that she was the owner of the suit property namely, lands measuring 5.78 ½ acres in S.Nos.247/2, 248/9, 248/10, 250/3 and 248/1 in Kallapalayam Village, Palladam Taluk, Coimbatore. She claimed that the 2nd plaintiff, her brother-in-law, R.Palaniyappan was the lessee with respect to a portion of her lands in S.No.247/2 measuring 2.13 acres. That lease was by a registered document dated 02.05.1984. She claimed that the defendant was the holder of two agreements of sale both dated 27.03.1991. The 2nd plaintiff claimed that in about two acres of the six acres of land owned by him in S.F.No.271/1 at Pachapalayam Village, granite materials were found. He had applied to the District Collector for quarrying the same and had obtained license. The 1st plaintiff claimed that there was no privity of contract between her and defendant.
31.The plaintiffs claimed that the defendant had filed O.S.No.11 of 1992 seeking injunction and mandatory injunction. The 1st plaintiff specifically stated that she had never executed a varthamanam letter on 14.04.1991. The signature was not her signature. It had been forged. She claimed that she had never authorized the 2nd plaintiff to negotiate with the defendant with respect to the sale of those lands. The plaintiffs claimed that they were in possession of the lands. The suit was therefore filed for a https://www.mhc.tn.gov.in/judis 19 declaration that the varthamanam letter dated 14.04.1991 is illegal, null and void and unenforceable and for permanent injunction restraining the defendant from interfering with peaceful possession.
32.A written statement was filed by the defendant denying and disputing the contentions in the plaint. It was again reiterated that the defendant had been put in possession of the lands mentioned under the two agreements of sale and had also taken possession of the machineries. It was stated that the 2nd plaintiff had brought the 1st plaintiff to Coimbatore and a varthamanam letter was executed on 14.04.1991. It was claimed that the advance amount would cover the costs of the machineries. It was reiterated that the varthamanam letter dated 14.04.1991 is a true document executed by the 1st plaintiff. It was therefore stated that the suit should be dismissed.
33.On the basis of the above pleadings, the following issues were framed:-
“1.Whether the suit was barred under the principle of Res subjudice?
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2.Whether the plaintiffs were in possession of the suit schedule properties?
3.Whether the varthamanam letter dated 14.04.1991 was a true and genuine document?
4.Whether the plaintiffs were entitled for the relief sought in the plaint?
5.To what other reliefs are the plaintiffs entitled to?” Joint Trial in O.S.Nos.11 of 1992 and 203 of 1995:
34.O.S.No.11 of 1992 was taken as the lead suit and evidence was recorded therein. The plaintiff, M.Prabhavathi, was examined as PW-1 and two other witnesses C.Perumal and Thangavel were examined as PW-2 and PW-3. The 1st defendant R.Palaniappan was examined as DW-1 and the 2nd defendant K.Chandra was examined as DW-4. Four other witnesses, Subbaya Gounder, C.V.Jayadevi, T.G.Kutti and Palaniyappan were examined as DW-2, DW-3, DW-5 and DW-6.
35.The plaintiff marked Exs.A1 to A20. Exs.A1 and A2 were the two agreements of sale deed dated 27.03.1991. Exs.A4 and A5 dated 09.06.1991 https://www.mhc.tn.gov.in/judis 21 were the endorsements made for receipt of further advance in the two agreements. Ex.A6 was the varthamanam letter said to have been executed by the 2nd defendant dated 14.04.1991. Exs.A13 and A14 were the notices exchanged between the parties.
36.On the side of the defendants Exs.B1 to B25 were marked. Ex.B1 and B2 were orders passed by the Collector, Coimbatore dated 21.03.1992 and 08.04.1988 respectively. Ex.B13 was the rejoinder issued by the 1st defendant to Ex.A14. Ex.B22 was the lease agreement between the 1st and 2nd defendants.
37. Ex.C1 was the report given by the Handwriting -cum- Fingerprints expert, PW-3 dated 08.05.1994. Ex.C2 were the photographs of the specimen signatures.
38.On the basis of the aforementioned evidence adduced, the learned Sub Judge, Tiruppur, by a common judgment dated 11.09.1997, first https://www.mhc.tn.gov.in/judis 22 examined the truth and validity of Ex.A6 varathamanam letter dated 14.04.1991 said to have been written by the 2nd defendant, K.Chandra. In this connection, the evidence of PW-3 the Handwriting expert was considered and the documents filed as Exs.C1 and C2 were further examined by the Court. The opinion given under Ex.C1 that the specimen signatures of the 2nd defendant differed from the signatures as seen in Ex.A6 was pointed out. It was observed that the witness withstood cross- examination. The points of differences were noted by the learned Sub Judge in the judgment. The competency of PW-3 was not questioned and in view of that particular evidence, it was held by the learned Sub Judge that the plaintiff had come to Court by producing a document which was evidently forged. It was also found that the particular stamp paper in which Ex.A6 had been prepared did not reflect the name of the person who had purchased the stamp paper. PW-1 had stated that her brother Muthusamy had purchased the stamp paper but that name was not reflected in Ex.A6.
39.The learned Sub Judge further pointed out that in Ex.A14 the reply notice dated 23.11.1991 there was no mention about Ex.A6. It was also observed that there was a subsisting registered lease agreement between the https://www.mhc.tn.gov.in/judis 23 1st and 2nd defendants and without notice to the 1st defendant it was improbable that the 2nd defendant would have written such a letter. It was also seen that though the plaintiff contended that the said letter was procured by the 1st defendant as promised, the 1st defendant had not signed the said letter, either as a witness or in any other capacity. It was concluded that the plaintiff had produced a letter in which the signatures of the 2nd defendant had been forged and that therefore the said document was declared to be void.
40.It was also found on the basis of the evidence adduced that the plaintiff was not put in possession of the suit property but was only granted permission to do quarrying work in the lands. It was therefore held that the plaintiff cannot invoke the advantage under Section 53 A of the Transfer of Property Act, 1882.
41.In view of the above reasons, it was held that the plaintiff had not made out a case for grant of relief in O.S.No.11 of 1992 and accordingly that suit was dismissed and on the other hand, primarily in view of the evidence of PW-3, O.S.No.203 of 1995 was decreed.
https://www.mhc.tn.gov.in/judis 24 A.S.Nos.81 of 1998 and A.S.No.82 of 1998:-
42.Questioning the dismissal of O.S.No.11 of 1992 and the decree granted in O.S.No.203 of 1995, the two aforementioned First Appeals were filed by M.Prabhavathi.
43.These two appeals came up for consideration before the Principal District Judge, Coimbatore, who by common judgment dated 28.06.1999 proceeded to re-examine the evidence available on record. The learned Principal District Judge again held that the plaintiff had not been put in possession of the suit property but was only granted permission to carry out quarrying work. It was found that the plaintiff had no effective agreement with respect to the lands measuring 5.78 ½ acres, which were owned by the 2nd defendant. The fact that Ex.A6 was a document prepared by the plaintiff was noted by the learned Principal District Judge. It was also found that the 1st defendant had no right to enter into the second agreement dated 27.03.1991 with respect to the said lands measured 5.78 ½ acres since he was a only lessee of a portion of the lands. It was also found that there was no mention about the first agreement, Ex.A-1, entered into between the plaintiff and the 1st defendant in the second agreement, Ex.A2. https://www.mhc.tn.gov.in/judis 25
44.The findings of the Trial Court with respect to Ex.A6 was confirmed and in view of the aforementioned discussion, the learned Principal District Judge, Coimbatore, dismissed both the Appeal Suits. S.A.Nos.1791 & 1792 of 2001:
45.Both these Second Appeals arise out of the common judgment in A.S.No.81 of 1998 and A.S.No.82 of 1998 by the Principal District Judge, Coimbatore, dated 28.06.1999.
46.The appellant herein was the appellant in both the appeal suits. She had filed A.S.No.81 of 1998 aggrieved by the decree granted in O.S.No.203 of 1995 and she had filed A.S.No.82 of 1998 aggrieved by the dismissal of her suit in O.S.No.11 of 1992. Both those suits were also disposed of by a common judgment dated 11.09.1997.
47.The appellant herein M.Prabhavathi had entered into an agreement to purchase six acres of land from R.Palaniappan, the 1st respondent in S.A.No.1792 of 2001. There is no dispute that the said 1st respondent was https://www.mhc.tn.gov.in/judis 26 the owner of the six acres of land which he had agreed to convey by the agreement which was dated 27.03.1991. It is the case of the appellant that the total sale consideration had been determined at Rs.5,00,000/- and that an advance of Rs.90,000/- in the first instance and a further advance of Rs.75,000/- in the second instance had been paid. There is no denial or dispute about the said facts.
48.On the same date, again between the appellant and the 1st respondent R.Palaniappan, a separate agreement of sale had been entered into with respect to the machineries available in the adjoining lands measuring 5.78 ½ acres. The total consideration for that particular agreement was determined at Rs.4,50,000/-. An advance of Rs.1,00,000/- had been paid and it is claimed that a further advance of Rs.75,000/- had been paid. It must be mentioned that along with the machineries there was also a lorry which had been agreed to be conveyed.
49.The disputes primarily surround the second agreement. The lands therein, measuring 5.78 ½ acres were owned by the 2nd respondent https://www.mhc.tn.gov.in/judis 27 K.Chandra. She was the sister-in-law of the 1st respondent Palaniappan. The 1st respondent Palaniappan therefore had no right, title or authority to agree to convey the lands or the machineries/lorry / telephone connections therein. He therefore held out, according to the appellant, that he would somehow procure a Varthaman letter from K.Chandra to convey the 5.78 ½ acres of land.
50.It must also be mentioned that as between the two respondents R.Palaniappan and K.Chandra there was a subsisting registered lease for 2.13 acres out of the 5.78 ½ acres and in that land, the 1 st respondent R.Palaniappan had put up a crusher machine, which was used to crush the stones which are quarried from the lands owned by him, measuring six acres. Claiming that the 2nd respondent K.Chandra had executed necessary document to convey 5.78 ½ acres, a varthamanam letter had been produced by the appellant herein dated 14.04.1991.
51.It had been specifically held during the course of trial, as a fact proved that the signatures of the 2nd respondent had been forged in that particular letter. PW-3 who was the Handwriting expert who deposed on https://www.mhc.tn.gov.in/judis 28 that particular fact. Her evidence had been accepted by both the Courts below. It was established that the signatures of the 2nd respondent in the varthamanam letter which had been marked as Ex.A6 were forged signatures.
52.In the background of the above facts, the appellant herein had filed O.S.No.11 of 1992 seeking injunction not to disturb possession and also for mandatory injunction to direct the 1st respondent to apply for and transfer the quarry license to her name. For good measure, the respondents also filed O.S.No.203 of 1995 seeking a declaration that the said varthamanam letter is a document, which has to be declared as null and void, owing to the forgery of the signatures. Both the suits were taken up together and joint trial conducted. The consequent appeal suits were also heard together.
53.In S.A.No.1791 of 2001, the substantial questions of law are as follows:
“1.Whether in law the Courts below have erred in holding that the Ex.A6 was null and void, on accepting the report and oral evidence of the expert, when both the https://www.mhc.tn.gov.in/judis 29 contrary to each other and when the documents from which the signatures were compared with Ex.A6 had not come into existence prior to the existence of Ex.A6 to as laid down in the dictum reported in 1999 II CTC 156?
2.Whether in law, the Courts below erred in overlooking that the plaintiff, having admitted the sale agreement in Ex.A1 and Ex.A2 and the appellant's possession of the land belonging to the second plaintiff and having failed to prove their plea of recovery of possession, the second plaintiff was estopped by conduct to approbate and reprobate against the recitals of Ex.A6?
3.Whether in law the Courts below erred in holding that Ex.A6 was unilateral without the appellant's signature overlooking that the same would not vitiate the Ex.A6?”
54.The 1st substantial question of law surrounds the findings of both the Courts below that the signature in Ex.A6 were forged signatures. It has to be stated that the competence of DW-3, the handwriting expert had not https://www.mhc.tn.gov.in/judis 30 been questioned by the appellant herein. The procedure adopted by the witness was by comparing the specimen signatures of the 2nd respondent, K.Chandra, with the signatures as found in Ex.A6.
55.The 2nd substantial question of law was whether the Courts had erred since possession had been given and the 2nd respondent was estopped to speak against the recitals in Ex.A6.
56.The 3rd substantial question of law was that Ex.A6 was a unilateral letter and was of no consequence.
57. The handwriting expert, DW-3,, C.V.Jayadevi, had 22 years of experience on the date of deposition as a fingerprint and handwriting expert. She had given opinions to the Central Government and State Government with respect to disputed signatures. She had marked the two signatures of the 2nd defendant as D1 and D2 in Ex.A6. She had also obtained five specimen signatures S1 to S5. She then compared the specimen signatures with the disputed signatures. She had given a very specific opinion that the https://www.mhc.tn.gov.in/judis 31 signatures marked as Exs.D1 and D2, which were the signature in Ex.A6 had not been affixed by the 2nd respondent K.Chandra. She withstood cross- examination. Her evidence had also been accepted and taken note of by both the Courts below. She had also given her opinion which were marked as C1 and C2. She had very clearly stated that the pictorial appearance of D1 and D2 differed from the specimen signatures. The formation and construction of the letters differed. The individual characteristic of the letters of D1 and D2 differed. It was also her opinion that the signature in D1 and D2 were made consciously and slowly. There were also calligraphic differences in D1 and D2. She had specified that there was a pen lift in the initial letter 'K'. There was a tremor in the letter 'C'. In the letter 'C' the formation was a curve in D1 and D2, but there was a blend at the base in the speciment signatures. She also found that there were no gaps between the initial stroke and the right side stroke in D1 and D2. It was also found that in the upper portion of the letter 'a' there was a pen lift but it was not so in the specimen signatures. There was also no continuity in the disputed signatures. The sizes of the letters also differed. She finally gave her opinion, stating, “the signatures D1 and D2 are forged”.
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58.This specific opinion had been given by an expert and in the absence of any admissions during cross-examination, and taking this opinion in conjunction with the categorical and specific denial of the 2nd respondent to have ever executed Ex.A6, it has to be held that the Courts below have correctly appreciated the evidence and had correctly come to a correct conclusion that the signatures in Ex.A-6 had been forged. Once this conclusion is reached, then all the three substantial questions will have to be necessarily answered against the appellant herein. The appellant had produced a documents which has been held to be forged. Naturally, the appellant cannot expect any relief from any Court of law.
59.In S.A.No.1792 of 2001, the following are the substantial questions of law, “1.Whether in law the courts below are right in holding that the suit for injunction to protect appellant's possession is not maintainable, when the suit for specific performance is pending, overlooking that the transferee can maintain the suit as laid down in the judgment reported in 1988 1 LW 563, 1987 TLNT 352 and 1993 I MLJ 576?
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2.Whether in law, the Courts below erred in overlooking that the appellant's possession to the lands belonging to the second defendant was admitted and when the plea of recovery of possession was not proved followed by permission to quarry, even assuming it to be licence, still the same is referable to a contract of sale and Section 53-A of the Transfer of Property Act, could be invoked?
3.Whether in law the Courts below erred in holding that the Ex.A6 was null and void on accepting the report and oral evidence of the expert, when both are contrary to each other and when the documents from which signatures were compared with Ex.A6 had not come into existence prior to the existence of Ex.A6 as laid down in the dictum reported in 1999 III CTC 156?”
60.The substantial questions of law revolve around possession said to have been granted to the appellant over the six acres of land. It is the contention of the appellant that she had been put in possession and therefore, she claimed that the benefit under Section 53A of the Transfer of https://www.mhc.tn.gov.in/judis 34 Property Act, 1882 has to be applied to her. But, it is the contention of the respondents that possession was not given but only permission to quarry the lands alone was given.
61.A perusal of Ex.A1 very clearly shows that permission was granted only to continue the quarry operation, which operation the 1st respondent R.Palaniappan was doing. It was stated in the agreement that the quarry license would expire on 14.04.1991 and therefore till that date, the appellant can quarry the lands.
62.With respect the second agreement, Ex.A-2, it had been provided that only the machineries had been agreed to be transferred.
63. Both the Courts below had concurrently held that the agreement in Ex.A2 was with respect to transfer only of machineries.
64. The Courts also held that the appellant herein with intention to grab the lands had procured Ex.A6 as if there had been an agreement to transfer the lands. Ex.A6 had been found to be forged. Therefore, the claim of the appellant naturally has to fail.
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65.The substantial questions of law are therefore answered that the appellant was never given possession of the land, but was only granted permission to quarry the land till the date of expiry of the llicense and that, therefore, appellant had no right to claim any advantage by claiming that possession had been given.
66.It must be pointed out that Ex.A6 had been correctly found to be a forged document. The appellant had also not produced any evidence to hold that such conclusion was wrong. The appellant was not able to shatter the evidence of DW-3.
67.It is a fact that the opinion of an expert would not be conclusive, but however taken into account the statement of the appellant that permission to quarry the land was interpreted as possession of land and the another agreement for transfer of machineries was interpreted as one for transfer of land, it is clear that the appellant had not come to Court with clean hands.
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68.In view of the above facts, the substantial questions of law are answered that the appellant has failed to establish any case. The appellant cannot take advantage of Section 53A of the Transfer of Property Act, 1882. Therefore, the Second Appeal fails.
69.In view of the above discussion, both the Second Appeals in S.A.Nos.1791 and 1792 of 2001 are dismissed with costs.
70. The common judgment and decree in A.S.Nos.81 and 82 of 1998 dated 28.06.1999 passed by the Principal District Court, Coimbatore and the common judgment and decree in O.S.No.11 of 1992 and O.S.No.203 of 1995 dated 11.09.1997 passed by the Sub Court Tiruppur are both confirmed and upheld Connected Miscellaneous Petitions, if any are closed. S.A.No.614 of 2015:-
O.S.No.687 of 1994:-
71.The suit in O.S.No.687 of 1994 were also between the same parties and with respect to same agreement dated 27.03.1991 and had been filed by the plaintiff M.Prabhavathi against the defendant R.Palaniappan https://www.mhc.tn.gov.in/judis 37 seeking specific performance of the said agreement dated 27.03.1991 with respect to the same lands measuring six acres in S.F.No.291/1, Pachapalayam village, Palladam Taluk, Coimbatore.
72.The plaintiff claimed that the total sale consideration in the agreement was determined at Rs.5,00,000/- and that an advance of Rs.90,000/- had been paid and that the time fixed was six months, to expire on or before 26.09.1991. It was stated that the defendant had also agreed to obtain quarry license to enable the plaintiff to continue to do that operation. It was further stated that however time was not the essence of the contract. The plaintiff claimed that a further advance of Rs.75,000/- had been paid and it was endorsed in the agreement.
73.It was also stated that on the same day, 27.03.1991, the plaintiff and the defendant had also entered into another agreement of sale with respect to the adjoining lands measuring 5.78 ½ acres but since the owner of the said lands K.Chandra, the sister-in-law of the defendant was not present, the defendant assured that he would obtain necessary document from her. It was stated that he brought her to Coimbatore on 14.04.1991 and she https://www.mhc.tn.gov.in/judis 38 executed a varthamanam letter agreeing to sell the 5.78 ½ acres to the plaintiff. The plaintiff claimed that she was put in possession of the lands and also of the machineries.
74.The plaintiff claimed that the defendant issued a notice dated 26.10.1991 stating that the plaintiff had not come forward to execute her part of the agreement. The plaintiff issued a reply of 23.11.1991, for which a rejoinder dated 23.01.1992 was issued by the defendant. It was stated that the parties tried to enter into a settlement, but the sister-in-law of the defendant K.Chandra did not accept any settlement. The plaintiff issued another notice on 16.03.1994 calling upon the defendant and the said K.Chandra to receive the balance sale consideration and execute necessary sale deed. A reply was sent by K.Chandra on 25.03.1994.
75.It was stated that trial had commenced in O.S.No.11 of 1992 which had been filed by the plaintiff seeking permanent injunction to protect possession and after the report of the handwriting expert was received in that suit, K.Chandra refused to execute sale deed with respect to her property measuring 5.78 ½ acres but demanded additional consideration. https://www.mhc.tn.gov.in/judis 39 A reply was given by the defendant on 20.08.1994. It was under these circumstances that the suit had been filed seeking specific performance of the agreement of sale with the defendant dated 27.03.1991.
76.In the written statement, the defendant admitted to the agreement and the advance amounts received. It was stated that lands had been purchased by the defendant by sale deed dated 24.02.1983 and there was deposit of granite stones in the said land. The defendant had commenced quarrying operation after obtaining necessary license from the District Collector. He had been carrying on mining operations from 1985-1991. The stones quarried were crushed in the crusher unit which was installed in the lands belonging to his sister-in-law K.Chandra. He had entered into a registered lease with respect to 2.13 acres of land in S.F.No.247/2 Kallapalayam Village, Palladam Taluk, Coimbatore for that purpose. He had also raised a loan. It was stated that prior to the agreement, negotiations related only to the lands of the defendant and the machineries available. The defendant admitted to the two agreements dated 27.03.1991. It was stated that the plaintiff was given permission to carry on mining business and that the plaintiff promised to complete the sale transaction on or before https://www.mhc.tn.gov.in/judis 40 26.09.1991. It was stated that possession of the lands had not been given. It was stated that time was the essence of agreement. It was stated that his sister-in-law, K.Chandra, never agreed to convey her lands.
77.It was again repeated that the properties of K.Chandra were not the subject matter of the negotiation prior to the agreement. It was also denied that the plaintiff was in possession of the said lands measuring 5.78 ½ acres. It was claimed that the plaintiff had no funds to perform her part of the agreement. She had never communicated to the defendant that she was ready to purchase the lands. It was stated that the plaintiff had filed a suit for injunction in the year 1992 and as on that date, the cause of action for instituting the suit for specific performance had arisen and the very fact that she did not institute such a suit would establish that she had no funds to perform her part of the agreement. It was stated that the suit should be dismissed.
78.On the basis of the above pleadings, the following issues were framed:-
https://www.mhc.tn.gov.in/judis 41 “1.Whether there was unreasonable, unjustifiable delay in filing the suit?
2.Whether the plaintiff was willing to perform her part of the agreement?
3.Whether the plaintiff is entitled for specific performance as prayed for?
4.To what other reliefs?”
79.During trial the plaintiff examined herself as PW-1 and the defendant examined himself as DW-1. The plaintiff marked Exs.A1 to A10. Ex.A1 was the copy of the agreement dated 27.03.1991. Exs.A2, A3, A4, A5 and A6 are notices exchanged between the parties.
80.The defendant marked Exs.B1 to B35. Ex.B1 was the other agreement dated 27.03.1991 with respect to the machineries and lorry. Ex.B2 was the varthamanam letter dated 14.04.1991. Ex.B8 was the order of the District Collector cancelling quarry license dated 26.12.1991. Exs.B9 to B14 were the copies of the common judgment and decree in O.S.Nos.11 of 1992 and 203 of 1995 and of A.S.Nos.81 and 82 of 1998.
81.On the basis of the evidence adduced, while examining the issue of readiness and willingness it was specifically found that though the https://www.mhc.tn.gov.in/judis 42 agreement was admitted by the defendant and the plaintiff had also paid advance of Rs.90,000/- and Rs.75,000/- towards the sale agreement, the plaintiff had not instituted the suit for specific performance though the defendant had refused to perform the agreement in their reply notice. It was found that the plaintiff had originally instituted a suit seeking only permanent injunction. It was also stated that the plaintiff had not deposited the balance sale consideration in the Court and had not even offered the balance sale consideration to the defendant. It was also found that the plaintiff had not produced any document to show availability funds with respect to the balance sale consideration. The conduct of the plaintiff in producing a forged document in Ex.B2 was also noted. The observations of the Trial Court and the First Appellate Court in the parallel suits between the parties was also noted. It was therefore found that since the plaintiff was never ready and willing to perform her part of the agreement and since she had not come to Court with clean hands, the relief of specific performance cannot be granted and the suit was dismissed. The Court also refused to direct return of the advance amount paid, holding that the plaintiff had not come to Court with clean hands.
https://www.mhc.tn.gov.in/judis 43 A.S.No.117 of 2008:-
82. Questioning that judgment, the plaintiff then filed the aforementioned appeal suit, which came up for consideration before the Principal District Judge, Coimbatore.
83. By judgment dated 12.03.2015, the learned Principal District Judge again examined the evidence on record and found that the plaintiff even before that Court did not come forward to deposit the balance sale consideration or to produce evidence about availability of balance sale consideration with her. It was also found that though the plaintiff claimed protection under Section 53A of the Transfer of Property Act, 1882, she had not been put in possession but was only granted permission to do quarrying work. It was stated that though Ex.B2 agreement was only with respect to machineries, the plaintiff had interpreted the same to include the sale of the lands of 5.78 ½ acres. The conduct of the plaintiff was therefore frowned upon and it was stated that time was actually an essence of the contract particularly because it involved commercial activity of quarry work. It was also stated that the plaintiff was not entitled for any equity and therefore, the learned Principal District Judge, by judgment dated 12.03.2015 dismissed the appeal suit.
https://www.mhc.tn.gov.in/judis 44 S.A.No.614 of 2000:-
84.The appellant / plaintiff then filed the aforementioned Second Appeal. The Second Appeal had been admitted on 30.06.2022 on the following three substantial questions of law:
“1.Whether in a contract for immovable property, time is of essence for the performance of the contract and while examining that particular aspect, what are the parameters which the Court should devolve into?
2.Whether when a plaintiff specifically comes to Court on the basis that possession had been granted on the basis of an agreement and seeks specific performance, the Courts below were right in deciding that the benefit under Section 53A of the Transfer of Property Act would not enure to the plaintiff/appellant herein.
3.When a suit for specific performance was filed within the period of limitation as provided under Article 54 of the Limitation Act, 1963 can the Courts overlook that particular aspect and still negative the relief and hold that the plaintiff is not entitled for specific performance?” https://www.mhc.tn.gov.in/judis 45
85.The suit had been based on the agreement marked as Ex.A1.
86. Ex.A1 is dated 27.03.1991. It was an agreement entered into between the appellant and the respondent with respect to six acres of land in S.F.No.291/1, Pachapalayam Village, Palladam Taluk, Coimbatore. The respondent was the owner of the said land. The total consideration was determined at Rs.5,00,000/-. An advance of Rs.90,000 had been paid. A further advance of Rs.75,000/- was also paid. The object of the agreement was primarily to quarry the granite stones, which were available in the lands. The respondent also had a crusher unit in the adjoining land. There were machineries and lorry available in the adjoining land. That land belong to his sister-in-law. To convey the machineries and lorry, a separate agreement had been entered into between the plaintiff and the respondent, though the respondent had no right or title over either the machineries or owner of the lorry.
87.However, specific performance is sought only of the agreement entered into with respect to the lands measuring six acres. A reading of the agreement shows that permission was granted to quarry till the licence https://www.mhc.tn.gov.in/judis 46 period subsisted. For that purpose alone, possession was granted. It was not a sale of the land to use the land construction or for private purpose for putting up a residential house. It was an agreement to use the land for quarrying purposes. The object has to be examined. The object was to quarry the granite stone available in the land. To quarry the granite stones, licence is required. The licence expired and owing to disputes, it was actually cancelled by the Collector, Coimbatore.
88.The First Appellate Court had examined the circumstances and had returned a very damaging finding against the appellant herein. It had been very specifically found that time in these circumstances was the essence of the agreement. That was an essence because performance depended on obtaining licence to quarry.
89. It was found that the appellant herein had also forged a document purporting to purchase the adjoining lands also.
90.In Saradhamani Kandappan Vs. S.Rajalakshmi and others reported in 2011 12 SCC 18, the Hon'ble Supreme Court had declared that https://www.mhc.tn.gov.in/judis 47 not in all cases of sale of immovable properties can it be uniformly held that time is not the essence of contract. It has to be taken on a case by case basis and on the facts of the agreement.
91. In the agreement Ex.A1, the parties had very specifically stated that the land is a quarry land and therefore that time was the essence of the agreement and the time period was fixed at six months. It was also stated that the appellant can continue to quarry, till the licence expired on 14.04.1991. The quarrying license was cancelled and the respondent was not able to provide a renewed license. It was not provided only because the appellant herein did not pay the total consideration within the period of six months. Therefore, performance of one fact namely provision of renewed license is linked with the performance of other fact namely, payment of balance sale consdieration. When viewed from that particular angle the 1st substantial question of law, in this case in answered that time was certainly the essence of the contract.
92.The 2nd substantial question of law surrounds grant of possession.
It is clear that possession of the land was not granted but only permission to https://www.mhc.tn.gov.in/judis 48 continue to do the quarrying work for the subsisting license period alone was granted.
93.This grant of permission cannot be equivated with possession as contemplated under Section 53A of the Transfer of Property Act. Section 53A of the Transfer of Property Act, relates to part performance and that part performance of an agreement is taking possession of the property. But in the instant case possession was not granted. Permission alone was granted. On expiry of the license or if the license was not renewed, and in this case, actually cancelled, the appellant had to vacate the lands to continue to do the quarrying work. Section 53A of the Transfer of Property Act, would not apply to the facts of the license and as a matter of fact, when the license expires, the permission to quarry occupy the lands to stood automatically frustrated.
94.It is to be noted that the suit had also been filed after a considerable delay and after the period as fixed under the agreement had expired.
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95.Thus, the 2nd substantial question of law is answered that in the facts of this particular case, the appellant cannot take advantage of Section 53A of the Transfer of Property Act, 1882.
96.The 3rd substantial question of law surrounds institution of the suit within the period of limitation. This question pales into insignificance since the only conclusion that can be reached, on the answers to the 1 st and 2nd substantial question of law is that relief of specific performance has to be rejected.
97. It must be kept in mind that both the Courts below had negatived specific performance and as a matter of fact, refused to apply equity to direct return of the advance amount.
98. Both the Courts below had concurrently held against the appellant.
99. I hold that since the agreement dated 27.03.1991 had been admitted and the payment of advance amount of Rs.90,000/- on the date of https://www.mhc.tn.gov.in/judis 50 the agreement had been admitted and further advance paid of Rs.75,000/- had been admitted, irrespective of other facts established, it would only be appropriate that the Court directs the defendant to return back the said advance amount of Rs.1,65,000/- to the appellant within a period of three months from the date of receipt of a copy of this order. I hold that it would not be appropriate to direct interest to be granted on the said amount. The amount of Rs.1,65,000/- alone is to be repaid back to the appellant/plaintiff.
100. In the instant case, perversity in the appreciation of evidence had not been established.
101. In view of the above reasonings, the Second Appeal in S.A.No.614 of 2015 stands partly allowed with respect return of the advance amount and dismissed with respect to the relief of specific performance. The Judgment and Decree in O.S.No. 687 of 1994 dated 30.03.2005 (Sub Court, Tiruppur) and in A.S.No. 117 of 2008 dated 12.03.2015 (Principal District Court, Coimbatore) are both confirmed with respect to denial of relief of specific performance. Any connected Miscellaneous Petition is closed.
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102. In the result,
(i) S.A.No. 1791 of 2001 is partly allowed. No costs.
(ii) S.A.No. 1792 of 2001 is dismissed with costs; and
(iii) S.A.No. 614 of 2015 is dismissed with costs.
02.09.2022 Index:Yes/No Internet:Yes/No Speaking / Non speaking order smv To
1.The Principal District Court, Coimbatore.
2.The Sub Court, Tiruppur.
3.The Section Officer, VR Section, Madras High Court. https://www.mhc.tn.gov.in/judis 52 C.V.KARTHIKEYAN,J.
Smv/vsg Pre-delivery Judgment made in S.A.Nos.1791 & 1792 of 2001 and S.A.No.614 of 2015 02.09.2022 https://www.mhc.tn.gov.in/judis