Madras High Court
Munusamy vs Nava Pillai on 19 December, 2007
Equivalent citations: AIR 2008 (NOC) 1401 (MAD.), 2008 (4) AKAR (NOC) 575 (MAD.)
JUDGMENT K. Venkataraman, J.
1. The defendant in O.S. No. 134 of 2000 before the learned Sub-ordinate Judge at Kallakurichi is the appellant in the second appeal. The plaintiff thereon is the respondent.
2. For convenience sake, the parties in the second appeal are referred to as per their rank in the suit.
3. The plaintiff filed the suit in O.S. No. 134 of 2000 before the Sub Court, Kallakurichi for specific performance of an agreement dated 14.10.1999 directing the defendant to execute and register a regular sale deed in respect of the suit properties in favour of the plaintiff within the time fixed by the Court or on his failure to do so, the Court itself shall execute and register the sale deed in favour of the plaintiff and for costs.
4. The case of the plaintiff as could be seen in the plaint in nutshell is as follows:
(a) The defendant entered into a registered agreement of sale with the plaintiff on 14.10.1999 agreeing to convey the suit properties for a consideration of Rs. 1,12,750/-. The defendant received an advance, of Rs. 75,000/- and the balance amount of Rs. 37,750/- shall be payable on or before 14.7.2000 and on such payment, the defendant shall execute a sale deed in his favour. Though, the plaintiff was ready and willing to perform his part of contract by paying the balance amount of Rs. 37,750/-, the defendant, instead of executing the sale deed, sent a legal notice dated 31.12.1999 alleging that the agreement of sale has been obtained out of threat, coercion and undue influence to ensure that the defendant give evidence in the Sessions Case favourable to the accused, who are related to the plaintiff. The said notice has been replied suitably on 8.1.2000.
(b) The sale agreement is valid in law and has net been executed for the purpose as stated in the notice issued by the defendant dated 31.12.1999. Even subsequently, the plaintiff through messengers and directly demanded the defendant to receive the balance of sale consideration and to execute and register the sale deed in respect of the suit properties. However, the defendant had been evading and postponing. Hence, the plaintiff was obliged to file the suit for specific performance of an agreement of sale dated 14.10.1999.
5. The defendant filed the written statement containing the following facts:
(a) It is true that the suit properties belong to him. However, it is not true to say that the plaintiff and the defendant entered into a registered agreement of sale dated 14.10.1999 wherein he has agreed to convey the suit properties for a sale consideration of Rs. 1,12,750/- and received a sum of Rs. 75,000/- as advance and agreed to receive the balance amount of Rs. 37,750/- on or before 14.7.2000.
(b) The plaintiff is a Village Panchayat President. There was a dispute between the family of the defendant and the family of one Gurubaran on account of the marriage of the defendant's son Parasuraman with the Gurubaran's sister Uma. Consequently the defendant's wife Saroja was brutally murdered on 4.3.1998. A criminal case was prosecuted in S.C. No. 80/99 before the Additional Sessions Judge, Villupuram against Gurubaran and eight others. The accused in the Sessions case are ail related to the plaintiff. The defendant is the prime witness in the murder case. The plaintiff is also one of the witnesses on the prosecution side. As the plaintiff is the President of the Village Panchayat, he had been exerting pressure on the defendant to give evidence in a manner favourable to the accused. The defendant was not agreeable to such a course and hence the plaintiff and other men of the accused got the agreement of sale executed by him. Thus, the agreement of sale was obtained out of threat, coercion and undue influence. The defendant never, intended to convey the suit properties to the plaintiff. The defendant out of fear and compulsion had no other option except to sign the document and to have it registered fearing danger to his life.
(c) The suit properties were acquired by the defendant for his own purpose under the registered sale deed dated 17.8.1998 and there was no need to effect any alienation within a year. The suit properties were purchased by him for a sum of Rs. 3,12,370/- from its previous owner, which is evidenced by sale agreement dated 6.10.1997 between him and his vendor. While so, there is no need or necessity to sell the properties for paltry sum of Rs. 1,12,750/-.
(d) The defendant therefore caused a registered notice dated 31.12.1999 setting out the reasons for executing the said agreement of sale dated 14.10.1999. A reply notice-was received by him calling upon him to execute the sale deed at the Sub-Registrar's office at Sankarapurm on 25.1.2000. Out of curiosity, he was in the Sub-Registrar's office on 25.1.2000, but the plaintiff did not turn up on that date. Though he has repudiated the said agreement as early as 31.12.1999, which was followed immediately by a reply, the plaintiff kept quiet for more than seven months to file the suit for specific performance. The reason is that the defendant averred the truth in the Sessions Case and the plaintiff scolded him that he has betrayed and the accused were convicted on 22.6.2000 and thereafter the suit has been laid. The allegation that the plaintiff through the messengers and directly demanded the defendant to receive the balance of consideration and to execute the 'sale deed are all false and denied. Thus, the defendant sought for dismissal of the suit.
6. Before the learned Subordinate Judge, Kallakurichi, the plaintiff examined himself as P.W. 1 and one Govindasamy an attestor in Ex. A1 sale agreement was examined as P.W. 2. Ex. A1 agreement of sale was filed and marked on the side of the plaintiff. On the side of the defendant, the defendant examined himself as D.W. 1 and one Nagesan was examined as D.W. 2. Exs. B1 to B10 have been filed and marked on the side of the defendant.
7. On considering the oral and documentary evidence, the learned trial judge came to the conclusion that the agreement of sale has been executed by the defendant in favour of the plaintiff not out of threat, coercion and in the manner as spoken to by the defendant but out of his own will and decreed the suit by his judmgent and decree dated 28.9.2005.
8. Aggrieved over the said judgment and decree, the defendant preferred an appeal in A.S. No. 5 of 2006 before the learned Principal District Judge, Villupuram. The learned appellate Judge also concurred with the finding of the trial Judge and dismissed the appeal preferred by the defendant by judgment and decree dated 29.9.2006.
9. Challenging the said judgment, and decree, the defendant has come forward with the present second appeal.
10. Ms. P.T. Asha, learned Counsel appearing for the appellant strenuously contended that the defendant has not voluntarily executed Ex. Al sale agreement and the same has been obtained out of threat and coercion in order to see to it that the defendant deposes favourably in a criminal case in S.C. No. 80 of 1999, wherein some of the accused are related to the plaintiff. The said agreement of sale has been procured from the defendant. Further, the learned Counsel submitted that the suit property had been purchased by the defendant for a sum of Rs. 3,12,370/- which could be seen from Ex. B5 agreement of sale between the defendant and one Nagesan, the vendor under the said document. While so, the defendant would not have agreed to sell the property for a sum of Rs. 1,12,750.
11. Further more, the learned Counsel appearing for the appellant submitted that the defendant himself has sent a registered notice on 31.12.1999 calling upon the plaintiff to return the sale agreement setting forth the plea of undue influence and coercion and thereafter a reply was sent by the plaintiff on 8.1.2000 under Ex. 34 and the suit has been laid after 7 months, which will show and establish that the circumstances under which the sale agreement was executed by the defendant. The learned Counsel further submitted that the plaintiff has not proved that he was continuously ready and willing to perform his part of contract and in fact after the reply notice from the plaintiff dated 8.1.2000, asking him to come to the Sub-Registrar's Office on 25.1.2000, out of curiosity the defendant was present before the Sub-Registrar's office. But the plaintiff did not turn up, which will show that even assuming that the agreement of sale is valid, the plaintiff was not ready and willing to perform his part of contract.
12. Per contra, Mr. K.S.V. Sethuraman, learned Counsel appearing for the plaintiff submitted that the agreement of sale is a registered document and hence it will go a long way to show that it is a document, which has not been extracted out of coercion or threat. He has further submitted that the defendant has not proved by any acceptable evidence that Ex. A1 agreement of sale has been procured for the purpose of giving evidence favourable to the accused in the criminal case.
13. It is the further contention of the learned Counsel appearing for the plaintiff that the plaintiff has proved and established that Ex. Al agreement of sale is valid and has not been executed for the purpose as alleged by the defendant. Further, the learned Counsel appearing for the plaintiff submitted that though the plaintiff was ready and willing to perform his part of contract, the defendant was evading to execute the sale deed and thus the learned Counsel appearing for the plaintiff sought for the dismissal of the appeal.
14. I have heard Ms. P.T. Asha, learned Counsel appearing for the appellant and Mr. K.S.V. Sethuraman, learned Counsel appearing for the respondent. Further, I have perused the judgment of the trial court as well as the appellate court. On considering the same, the question that arises for consideration is whether the agreement of sale would have been executed by the defendant out of free will as per the plaintiff or out of force, coercion and undue influence as pleaded by the defendant. The answer that could emerge is that the agreement of sale was not executed by the defendant out of his own will but as spoken by him only. For arriving at such conclusion by me the following reasons emerges:
(A) The defendant did not dispute the execution of Ex. A1 sale agreement dated 14.10.1999. However, according to him, - the said agreement was executed by him out of threat and coercion. According' to him his son Parasuraman married one Uma, sister of one Gurubaran. Hence, there was a dispute between his family and the said Gurubaran. Consequently, his wife Saroja was brutally murdered on 4.3.1998, which ended in criminal case in S.C. No. 80 of 1999, before the. Additional Sessions Judge, Villupuram District. Since some of the accused are the relatives of the plaintiff, in order to see to it that the defendant deposed favourably in favour of the accused, an agreement of sale has been procured from the plaintiff out of threat, coercion and undue influence.
(B). While going through the evidence of P.W. 1, I could come to the conclusion, the least I could say is that he has not spoken the truth. The reason is that
(i) while examining himself in the chief examination as P.W. 1 he has deposed that none of the accused in the criminal case are closely related to him. But in the cross examination, he has clearly accepted that one Pichapillai's sons are A3 and A8 in the Sessions case and' Pichapillai's maternal uncle is Muruga Pillai and Muruga Pillai's daughter Thavayee is plaintiff's wife.
(ii) P.W. 1 is said to be the Village Panchayath President for eight consecutive years. While so, he deposes that he has no knowledge about the marriage between Parasuraman, son of the defendant and one Uma, sister of Gurubaran. Further, he pleads ignorance, about the dispute between Gurubaran and the defendant, in view of the said marriage.
(iii) He pleaded ignorance about the murder of defendant's wife Saroja. At the same time, he deposed in the cross-examination that after the death of Saroja he has been examined by the police.
(iv) Further at the first instance in the cross examination he deposed that he has not been arrayed, as, a witness in the criminal case, but in the latter portion of the cross examination, he has accepted that he has been shown as 6th witness in the, criminal case. The evidence of P.W. 1, thus in the cross examination will clearly show that, he has not spoken the truth.
(C). (i) The second aspect, which has to be considered is that admittedly the defendant entered into an agreement of sale with the original vendor under, Ex. B5 for Rs. 3,12,370/-. When the said property was purchased by the defendant for Rs. 3,12,370/- the same could not have been agreed to be sold to the plaintiff for only Rs. 1,12,750/-. This probablise the case of the defendant that the agreement of sale has been obtained from him out of force, coercion and undue influence.
(ii) Though Ex. B10, sale deed in favour of the defendant in pursuant to Ex. B5 sale agreement shows that the sale value mentioned thereon was Rs. 99,900/-, it has been explained by the defendant as to why such figure has been mentioned in the sale deed in spite of the fact that he has purchased the property for Rs. 3,12,370/-. It is curious to note that the sale deed dated 17.8.1998 in favour of the defendant in respect of the suit property has been marked through PW1 in which he has signed as a witness. His signature in the said deed is marked as Ex. B1. Though at the first instance, the plaintiff pleaded ignorance about the sale deed in favour of the defendant, however, admitted later, that he has signed as a witness in the said document.
(D) To prove Ex. A1, the agreement of sale, on the side of the plaintiff one Govindasamy was examined as P.W. 2. Unfortunately, the court's below have relied on his evidence. A suit seems to have been filed by the defendant against P.W. 2 in O.S. No. 956 of 1997. While so, his evidence cannot be relied on to prove the execution of Ex. A1, the agreement of sale by the defendant. As I said already, the courts below have overlooked this aspect and relied, on his evidence to come to the conclusion that Ex. A1 the agreement of sale has been executed by the defendant not out of force, undue influence or coercion but out of his own will. Apart from P.W. 1, the interested witness and P.W. 2 whose evidence cannot be relied on for the reasons set out above, there is no independent witness on the side of the plaintiff to prove his case.
(E) No doubt, it is true that immediately after the execution of the agreement of sale, he has not lodged any complaint to the police about the said threat, coercion or undue influence. But that alone cannot be put against the defendant. In fact, the defendant, has caused advocate notice under Ex. B2 dated 31.12.1999 setting out the circumstances, under which he has executed the agreement of sale. Through, Ex. B4 a reply has been sent by the plaintiff dated 8.1.2000 repudiating the contents of Ex. B2 notice it has to be seen that the present suit has been laid by the plaintiff only on 30.7.2000 after judgment in S.C. No. 80 of 19.99 dated 22.6.2000, which is marked as Ex. B9. This probablise the case of the defendant that after he has deposed against the accused and after the accused were convicted, in the criminal case, as per Ex. B9 dated 22.6.2000, the plaintiff has laid the suit on 13.7.2000. The plaintiff has not explained, why after the defendant sent notice on 31.12.1999 followed by the reply of the plaintiff dated 8.1.2000 he has taken mere than six months in laying a suit against the defendant.
15. The discussions made above throws a doubt whether the defendant would have executed an agreement of sale in favour of the plaintiff out of, his own will. The relief under Specific performance is a discretionary relief and even if a doubt arises about the agreement of sale between the parties, the relief could be refused to be granted. The relief of specific performance could be granted only if it is a clear case of -agreement of sale between the parties, which is pleaded and established by some acceptable evidence. As steted already, the discussion made above raises a doubt, whether the defendant would have executed an agreement of sale in favour of the plaintiff out of free will or out of force or coercion. While so granting a relief under a Specific Relief Act, under a cloud is totally erroneous. The courts below without considering the above aspects accepted the case of the plaintiff and rejected the case of the defendant. Hence, even though it is a concurrent finding arrived at by the Courts below, I am constrained to interfere with such finding.
16. The defendant has raised the following substantial questions of law in the Second Appeal:
1. Whether the courts below are correct in law in upholding Ex. A1 Sale agreement especially when the appellant has proved that the agreement of sale has come about by coercion, threat and undue influence and was therefore an agreement which was not created by the free Will of the appellant?
2. Whether the lower court is justified in decreeing the suit in favour of the respondent especially when the respondent failed to rebut the presumption of coercion as pleaded by appellant by categorical evidence as contemplated under Section 14 and 16, of the Contract Act?
3. Assuming that Ex. A1 Agreement of sale is a valid one, whether in the absence of a proof of readiness and willingness the respondent as plaintiff is entitled to a decree for specific performance?
The discussions made above by me has answered the substantial questions of law 1, and 2. As regards the third substantial question of law, whether the plaintiff was ready and willing, to perform his part of contract is concerned, since I have arrived at the conclusion that the agreement of sale was not executed by the defendant out of his free will and that it creates a doubt about the execution of the agreement by the defendant in favour of the plaintiff, there need be no finding about the plaintiff's readiness and willingness.
17. In the result, I am constrained to set aside the judgment and decree of the learned Subordinate Judge, Kallakurichi made in O.S. No. 134 of 2000 dated 28.9.2005 as confirmed by the learned Principal District Judge at Villupuram dated 29.9.2006 in A.S. No. 5 of 2006. The second appeal stands allowed. However, there is no order as to costs. Consequently, M.P. No. 1 of 2007 is closed.