Madras High Court
Gowthaman vs Selvi Karunanidhi on 4 July, 2022
Author: R.N.Manjula
Bench: R.N.Manjula
A.S. No.103 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.07.2022
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S. No.103 of 2019
1.Gowthaman
2.Ananthakumar ... Appellants /
Defendants
versus
Selvi Karunanidhi ... Respondent /
Plaintiff
PRAYER: Appeal Suit filed under Section 96 of the Code of Civil
Procedure, against the judgment and decree dated 27.08.2018 made in
O.S.No.11324 of 2010 on the file of the learned VI Additional Judge, City
Civil Court, Chennai.
For Appellants : Mr.P.Rajendran
For Respondent : Mr.N.Nirmalraj
JUDGMENT
This Appeal has been preferred challenging the judgment of the learned VI Additional Judge, City Civil Court, Chennai dated 27.08.2018 made in O.S.No.11324 of 2010.
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2. The appellants are the defendants in the suit was filed by the respondent / plaintiff for the relief of specific performance.
3. The case of the respondent / plaintiff is that on 26.02.2005 a Sale Agreement was entered into between the plaintiff and the defendants for selling the suit property for a total sale consideration of Rs.16,50,000/-. On the day of Sale Agreement itself a sum of Rs.11,25,000/- was paid as part sale consideration and the balance sale consideration was agreed to be paid within a period of three months.
3.1. Despite the plaintiff was ready and willing to pay the balance sale consideration of Rs.5,25,000/-, the defendants did not come forward to execute the Sale Deed and perform his part of contract. Hence, the plaintiff filed the suit for the relief of specific performance. Since the Sale deed was not executed for nearly 2 years, the parties had entered into a Memorandum of Understanding on 05.02.2007 by stating that the Sale Agreement can be terminated on payment of Rs.16,77,000/- to the plaintiff. Even according to the Memorandum of Understanding, the defendants failed to make the payment of Rs.16,77,000/- within 15 days from 05.02.2007. 2/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019 Since the defendants neither executed the Sale Deed nor returned the amount of Rs.16,77,000/- as agreed in the Memorandum of understanding, the plaintiff has filed the suit for specific performance.
4. The defendants resisted the suit by stating that the suit property was owned by one R.K.Munusamy, who was the paternal uncle of the defendants. He died on 12.01.1982 leaving behind his wife Dhanabackiam alone as his legal heir. Dhanabackiam expired on 11.12.1998 and thereafter R.K.Munusamy's brother, R.K.Parasuraman's children have become the legal heirs for the suit property.
4.1. The defendants are the sons of R.K.Parasuraman. Apart from the defendants, there are other legal heirs of their father R.K.Parasuraman and they are not parties to the Sale Agreement. The plaintiff was not ready and willing to perform her part of contract also. It is false to state that the defendants had assured to get the consent of the rest of the legal heirs for the sale of the suit property. The Memorandum of Understanding is also a concocted document making use of the signatures obtained by the defendants in the blank papers by the plaintiff. 3/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019
5. On the basis of the above pleadings, the learned trial Judge has framed the following issues;
“i. Whether the plaintiff is entitled for the decree directing the defendants to execute the sale deed in respect of the suit property in favour of the plaintiff in pursuance of the agreement for sale dated 26.02.2005 ? ii. Whether the undertaking letter and page 3 and 4 of the sale agreement filed as documents in this case are fabricated documents as alleged by the defendants ?
iii. Whether the sale agreement dated 26.02.2005 cannot be specifically enforced in view of the provisions contained in Section 17 of the Specific Relief Act 1968 since there are other joint owners who are not parties to the agreement of sale and not willing to sell the suit property ? iv. To what other relief the parties are entitle to ?”
6. During the course of trial, on the side of the plaintiff, one witness was examined as P.W.1 and Ex.A.1 to Ex.A.6 were marked. On the side of the defendants, 1st defendant was examined as D.W.1 and Ex.B.1 was marked.
7. At the conclusion of the trial and on considering the evidence on record, the trial court decreed the suit as prayed. Aggrieved over that, the defendants have filed the present Appeal. 4/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019
8. Heard the learned counsel for the appellants and the learned counsel for the respondent and also perused the materials available on record.
9. The learned counsel for the appellants submitted that the appellants-defendants do not have the title over the while of the suit property in order to execute the Sale Agreement; apart from the defendants, there are 5 more legal heirs for their father Late R.K.Parasuraman; the other legal heirs of the deceased R.K.Parasuraman are also necessary parties to the suit; since the defendants cannot represent the interest of other joint owners of the suit property, the decree passed for specific performance is inequitable; the learned trial Judge did not take into consideration of the essential legal aspects and chosen to decreed the suit and hence, it is liable to be reversed.
10. In fact, the appellants / defendants are the adopted sons of R.K.Parasuraman; they declared themselves as the only legal heirs of the deceased R.K.Parasuraman and executed the Mortgage Deed in respect of the suit property on 10.02.1987; since the appellants allowed the respondent-plaintiff to believe that they are the only legal heirs and received 5/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019 the balance sale consideration from her; now for the purpose of the suit the appellants have stated that there are other legal heirs for R.K.Parasuraman and they are not parties to the Sale Agreement; the learned trial Judge has rightly appreciated the conduct of the parties and granted the discretionary relief for specific performance in favour of the respondent-plaintiff and hence, it does not require any interference,
11. Points for consideration;
“(i) Whether the decree for specific performance passed by the learned trial Judge for the entire suit property is fair and proper ?
(ii) Whether the appellants are the sons of late R.K.Parasuraman could represent the interest of other legal heirs and the Sale Agreement executed by the appellants will bind the other legal heirs of R.K.Parasuraman ?
(iii) Whether the judgment and decree of the learned trial Judge is liable to be set aside ?” 6/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019
12. The fact that the Sale Agreement was entered into between the plaintiff-respondent and the defendants-appellants on 26.02.2005 was not denied. Even the appellants have admitted in the written statement that they had executed the Sale Agreement by affixing their signatures as vendors. Since the Sale Agreement is a written document and the appellants have also admitted their signatures made therein, its contents can not be denied contrary to the settled position of law relating to Section 91 of the Evidence Act.
13. In the Sale Agreement [Ex.A.1], it is stated that the day of Sale Agreement itself the earnest money of Rs.11,25,000/- was paid. The total sale consideration for the suit property was fixed at Rs.16,50,000/-, out of which a partial sale consideration of Rs.11,25,000/- has been paid on the day of Sale Agreement itself and in the said document, the appellants- defendants have affixed their signatures.
14. Despite the appellants deny the receiving the as stated in Ex.A.1, no rebuttal proof is produced before the Court to show that the appellants did not receive the amount as stated in the Sale Agreement 7/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019 [Ex.A.1]. Hence, the facts that the Sale Agreement was entered into between the plaintiff and the defendants and on the day of Sale Agreement itself the respondent-plaintiff had paid the partial sale consideration of Rs.11,25,000/- are proved. It is also not proved before the Court that the sale consideration was agreed at Rs.17,50,000/- as alleged by the appellants. The evidence on record would prove that the total sale consideration was agreed at Rs.16,50,000/- and out of which the respondent-plaintiff has paid a part sale consideration of Rs.11,25,000/-.
15. The fact that the suit property was originally belonged to one R.K.Munusamy, who is the brother of the appellants' father R.K.Parasuraman is also not disputed. R.K.Munusamy died on 12.01.1982 without any issues. So his wife Dhanabackiam inherited the suit property and she also died on 11.12.1998. Since Dhanabackiam died issueless and intestate, as per Section 15(1)(b) of the Hindu Succession Act, 1956, the suit property would devolve upon the heirs of her husband,. Since the appellants are only the legal heirs of the brother of late R.K.Parasuraman, the property would be inherited by them.
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16. Though the fact that all the children of R.K. Parasuraman are entitled to the suit property, the appellants-defendants alone executed the Sale Agreement under Ex.A.1 in favour of the respondent-plaintiff. And it was without the knowledge of the other legal heirs. Since the other legal heirs did not give any Power in favour of the defendants 1 and 2, they cannot represent the interest of the other legal heirs while executing Ex.A.1 in favour of the respondent-plaintiff.
17. The respondent/plaintiff got herself examined as P.W.1 and during her evidence has admitted that she has the knowledge about the existence of the female heirs of late R.K.Parasuraman. In that case, she ought to have compelled the appellants to bring the other legal heirs also for executing the Sale Agreement for getting a better title over the suit property. She has stated in her evidence that she was made to believe that they would get the consent of other legal heirs for executing the Sale Deed. It is possible for the respondent-plaintiff to believe on the words of the defendants. Since they are the male members of the family, she could have believed that they would bring the female heirs also at the time when the Sale Deed is 9/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019 executed. But the fact remains that the other female of the heirs of R.K.Parasuraman are not parties to the Sale Agreement.
18. As per Section 17 of the Specific Relief Act, a person who do not have any title cannot execute any Sale Agreement. Even if such a Sale Agreement is executed that is not enforceable. So the sale agreement executed by the appellants in favour of the respondent-plaintiff could be only be limited to their undivided share in the suit property.
19. When the appellants-defendants could conveniently raise the defence that the Sale Agreement is not enforceable because they did not include the female legal heirs, they did not choose to return the earnest money received by them. Instead they just cancelled the agreement after sending notice to the respondent-plaintiff. The conduct of the defendants would show that after allowing the respondent-plaintiff to shell out her money, they left her at lurch.
20. Despite it was denied by the appellants about the receipt of partial payment of sale consideration of Rs.11,25,000/- in their pleadings, 10/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019 they did not choose to suggest the same to PW1 during her cross examination.
21. The learned trial Judge has rightly accepted the fact that apart from the appellants/defendants there are other legal heirs for the deceased R.K.Parasuraman and his wife. The learned trial Judge had made an observation that the wife of the original owner R.K.Munusamy, and his wife namely Dhanabackiam had adopted the appellants as their adopted sons and only in that capacity the said Dhanabackiam had executed a Mortgage Deed along with the defendants in favour of Triplicane Permanent Fund Limited on 10.02.1987.
22. The story of the adoption was neither the case of the appellants/defendants nor the case of the respondent/plaintiff. Just because the appellants had joined with Late Dhanabackiam while she executed the Mortgage Deed in favour of Triplicane Permanent Fund Limited and sign the deed, that will not make them the adopted children of R.K. Mususamy. 11/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019
23. The learned trial Judge seems to have convinced himself to invent a story of adoption in order to decree the suit in entirety. The learned trial Judge has further observed that patta for the suit property stood in the name of the appellants. Again with that it can not be concluded that they are the adopted sons. Further patta is not a document of title and with having the patta in their name alone the appellants can not claim entire right over the suit property which was purchased by the original owner R.K.Munusamy by virtue of the Sale Deed dated 23.03.1972.
24. Despite the plaintiff was ready and willing to perform her part of contract and was waiting for the registration, the appellants did not turn up. On 05.02.2007 they entered into a Memorandum of Understanding with the plaintiff by stating that they agreed to hand over the total sum of Rs.16,77,000/- towards compensation, refund of advance and expenses incurred by the plaintiff for purchasing the stamp papers.
25. It is further agreed in the Memorandum of Understanding [Ex.A.2] that within 15 days of the Sale Agreement, the agreed amount should be paid to the respondent-plaintiff and in the case of failure to make payment the respondent is entitled to get the Sale Deed executed in her 12/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019 favour. Even after the expiry of 15 days, the appellants did not return the amount of Rs.16,77,000/-.
26. Despite the appellants pleaded about some fraud in respect of Memorandum of Understanding that fact was not proved before the Court. Since the execution of Memorandum of Understanding is a written agreement, the production of the same is sufficient to prove its contents, until the contrary is proved. In fact, the 1st appellant who was examined as D.W.1 has categorically admitted about his signature and the signature of his brother D.W.2 in the Memorandum of Understanding dated 05.02.2007 in his evidence.
27. The appellants-defendants manage to escape from their liability to execute the Sale Deed by conveniently pleading that all the legal heirs of R.K.Parasuraman were not parties to the Sale Agreement. They also dodge to abide by the terms of Memorandum of Understanding [Ex.A.2] by paying back the damages of Rs.16,77,000/-. Since the decree of specific performance binding the other legal heirs who were not parties to the sale agreement can not be granted, even if the equity lies in favour of the 13/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019 plaintiff, It is an appropriate case where the learned trial Judge could have granted the alternative relief of refund of advance amount or the relief of specific performance to the extent of undivided share of the appellants, by proportionately apportioning the amount already paid and to refund the balance with interest.
28. There are 7 legal heirs for the deceased R.K.Parasuraman including these appellants. It is reliably understood that one of the sister of the appellants, namely, Premavathi is no more. Hence, the plaintiff's undivided share in the property would enhance to 2/6 from 2/7 but however the suit property itself is seen to be 1000 sq.ft of house situated in a house site measuring 1388 sq.ft. So the undivided share of 2/6 would not be practical or convenient for execution.
29. Even as per the Memorandum of Understanding the defendants had agreed to return a sum of Rs.16,77,000/-. At the time when the Sale Agreement was entered into between the parties, the prevailing rate of interest in the National Bank was comparatively high. Hence I feel the plaintiffs should be compensated by awarding interest on the sum of Rs.16,77,000/-.
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30. Accordingly, this Appeal is partly allowed and the judgment and decree dated 27.08.2018 passed by the learned VI Additional Judge, City Civil Court, Chennai, made in O.S.No.11324 of 2010 is modified to the effect that the plaintiff is entitled to get the decree for refund for a sum of Rs.16,77,000/- along with interest at the rate of 10% per annum from the date of the suit till the date of decree and at 6% from the date of decree till the date of realization along with the stamp duty expenses of Rs.90,000/- incurred by the plaintiff and the cost of this suit. The plaintiff is also entitled to a charge over the suit property for the decree amount in accordance with Section 55(6)(b) of the Transfer of Property Act. Time for payment will be two months from the date of receipt of a copy of this judgment.
04.07.2022
Speaking order / Non-speaking order
Index : Yes / No
Internet : Yes
sri
To
1.The VI Additional Judge, City Civil Court, Chennai. 15/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019
2.Record Keeper, V.R. Section, High Court, Madras. 16/17 https://www.mhc.tn.gov.in/judis A.S. No.103 of 2019 R.N.MANJULA, J.
sri A.S. No.103 of 2019 04.07.2022 17/17 https://www.mhc.tn.gov.in/judis