Madras High Court
Siluvai Rajan @ M.S.Rajan vs Glory Stella Bai .. 1St on 30 October, 2013
Author: R.Karuppiah
Bench: R.Karuppiah
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 30/10/2013 CORAM THE HONOURABLE MR.JUSTICE R.KARUPPIAH A.S(MD)No.65 of 2004 Siluvai Rajan @ M.S.Rajan .. Appellant / 1st Defendant Vs. 1.Glory Stella Bai .. 1st Respondent / Plaintiff 2.Joseph .. 2nd Respondent / 2nd Defendant PRAYER This Appeal Suit is filed under Section 96 of CPC., against the Judgment and Decree dated 27.02.2003 passed in O.S.No.84 of 2000 on the file of the Subordinate Court, Padmanabhapuram. !For Appellant ... Mr.S.S.Sundar for Mr.V.Sasikumar ^For Respondent-1 ... Mr.V.Meenakshisundaram for Mr.Nallathambi For Respondent-2 ... Mr.A.Ganapathy Raman :JUDGMENT
The appellant, who is the first defendant in the Original Suit, filed this Appeal Suit as against the judgment and decree dated 27.02.2003 made in O.S.No.84 of 2000 on the file of Subordinate Court, Padmanabhapuram.
2. For the sake of convenience, the parties arrayed in the Suit is referred in this appeal.
3. The first respondent in the appeal, who is the plaintiff in the above said Suit, filed a Suit for specific performance of contract, dated 24.01.2000 executed by the first defendant and originally impleaded the first defendant alone as defendant and during the pendency of the Suit, the 2nd defendant was impleaded.
4. Briefly, the case of plaintiff stated in the plaint is that the defendant purchased the suit property viz., house site with building bearing No.7/75, as per sale deed No.481/1992. The defendant agreed to sell the suit property to an extent of 33 cents in R.S.No.16/17 in favour of the plaintiff for a sale consideration of Rs.8,00,000/- and accordingly a written agreement of sale was executed on the same day and the defendant agreeing to execute the sale deed in favour of the plaintiff on or before 30.05.2000. On the date of sale agreement, the plaintiff paid an advance amount of Rs.5,00,000/- towards sale consideration to the defendant. The original agreement of sale and copies of title deeds relating to the suit property were handed over to the plaintiff along with tax receipts. The plaintiff was ready and willing to perform her part of contract, as per the agreement of sale. Further as per the agreement, the defendant demanded and received an amount of Rs.1,20,000/- from the plaintiff out of balance sale consideration and on receipt of the same, the defendant acknowledged its receipt on 23.05.2000 by means of an endorsement and signed in the written agreement of sale itself. The balance sale consideration to be paid only an amount of Rs.1,80,000/-. The plaintiff was always ready and willing to pay the balance sale consideration and to perform her part of contract and also orally demanded to execute the sale deed but the defendant did not come forward to execute the sale deed and he was evading. On 30.05.2000, the plaintiff went to Sub-Registrar's Office and awaiting for defendant to execute the sale deed by paying the balance sale consideration. But the defendant did not come to the Sub Registrar's office. Therefore, the plaintiff sent a suit notice to the defendant on 31.05.2000, calling upon the defendant to execute the sale deed and also the plaintiff has caused a publication in "Dinamalar" News paper, dated 01.06.2000. But the defendant never cared about performing his part of contract and execute the sale deed in favour of the plaintiff. The defendant is bound to execute the sale deed, as per agreement, after clearing all arrears of loan amount due to LIC, which availed by him for construction of the house in the schedule property. The defendant has neither cleared off the loan nor come forward to execute the sale deed. Therefore, filed the suit for specific performance of agreement of sale, dated 24.01.2000 by directing the defendant to execute the sale deed in favour of the plaintiff after deposit of balance sale consideration of Rs.1,80,000/- in Court, failing which, the Court itself execute the sale deed on behalf of the defendant in favour of the plaintiff.
5. The appellant / first defendant in the suit filed written statement in which denied the various averments made in the plaint and stated that in the first week of January 2000, the first defendant approached one Devasahayam for a loan of Rs.3,00,000/- and he given a loan of Rs.1,80,000/- on 10.01.2000 and got a debt bond in the style of an 'agreement of sale'. Since the defendant was badly in need of money, he has no other option, except doing things. Accordingly, the above said Devasahayam, paid the balance of Rs.1,20,000/- to the first defendant. Therefore, the first defendant had borrowed a sum of Rs.3,00,000/- only from the above said Devasahayam but the above said document obtained in the name of his wife's sister i.e., the present plaintiff. There is no privity of contract between the plaintiff and the first defendant. The first defendant did not borrow any money from the plaintiff. The plaintiff is only a name lender. The above said Devasahayam was collecting interest at the rate of 36% per annum from the first defendant. Therefore, it is false to state that the first defendant had agreed to sell the plaint schedule property for a sum of Rs.8,00,000/-. Further, its worth more than Rs.16,00,000/- at the time of agreement. The plaintiff never paid Rs.5,00,000/- as advance and also she has no capacity to pay the above said amount. The allegation that the plaintiff is always ready and willing to perform her part of contract is false. The above said Devasahayam was also not entitled to get sale deed from the first defendant. The alleged demand by the plaintiff is also false. No such notice has been sent to the first defendant and the first defendant never received the above said notice. Paper publication has been made only after filing the Suit. The plaintiff has no locus standi to ask the first defendant to execute the sale deed and therefore, the question of payment of LIC loan does not arise. The first defendant having only the suit property for his occupation and the above said building has been constructed with great difficulties spend all his money and loans obtained from LIC and his friends. Therefore, the above said Devasahayam is only entitled to the money, which he had orally advanced to the first defendant. The plaintiff is not entitled to a decree for specific performance of contract and further, the Suit is bad for non-joinder of necessary party viz., the above said Devasahayam.
6. During the pendency of the above said Suit, the 2nd defendant was impleaded since he is running hospital in the suit property as per the order in I.A.No.90 of 2000 dated 25.06.2001 but the above said 2nd defendant remained exparte in the Suit.
7. The trial Court considered the above said pleadings and framed the following 4 issues for consideration:-
1. Whether it is correct to say that no agreement of sale between the plaintiff and the defendant?
2.Whether the plaintiff is entitled to the relief of specific performance, as prayed for in the plaint?
3.Whether the suit is bad for non-joinder of necessary parties viz., Devasahayam?
4.To what relief the plaintiff is entitled to?
8. Before the trial Court, one Marry Stella has filed a Suit in O.S.No.90 of 2000 as against the first defendant and the plaintiff for redemption of simple mortgage and the trial Court tried both Suits i.e., O.S.No.84 of 2000 and O.S.No.90 of 2000 jointly and recorded evidence in O.S.No.84 of 2000. On the side of the plaintiff, 5 witnesses were examined as P.Ws. 1 to 5 and 15 documents were marked as Exs.A1 to A15 and on the side of the defendants examined 2 witnesses as D.Ws.1 and 2 and marked 4 documents as Exs.D1 to D4.
9. The trial Court has discussed about the oral and documentary evidence adduced on either side and finally granted the relief of specific performance, as prayed for in O.S.No.84 of 2000 and also decreed as prayed for in the connected Mortgage Suit in O.S.No.90 of 2000 and passed preliminary decree.
10. Aggrieved over the above said decree and judgment passed by the trial Court in O.S.No.84 of 2000., the appellant / first defendant in the above suit filed this Appeal Suit.
11. The points for consideration in this First Appeal are:-
1.Whether the first respondent / plaintiff is always ready and willing to perform her part of contract?
2.Whether the contention of the appellant / first defendant that no privity of contract between the plaintiff and the first defendant is correct?
3. Whether the contention of the appellant / first defendant that Ex.A1 alleged agreement of sale executed by the appellant / first defendant alone is not valid is correct?
4.Whether the Suit is liable to be dismissed for non-joinder of one Devasahayam?
5.Whether the appeal is to be allowed?
Points for consideration Nos.1 and 2:-
12. The learned counsel appearing for the appellant / first defendant has mainly contended that the first respondent / plaintiff is not entitled to the relief of specific performance on the following grounds:-
a. Ex.A1 agreement of sale is a fabricated document. b. There is no privity of contract or any transaction between the plaintiff and first defendant.
c. The plaintiff has no sufficient means to pay the balance sale consideration.
d. Ex.A1 Agreement of sale, signed only by the vendor viz., the first defendant and not signed by the purchaser viz., the plaintiff and therefore, it is not valid in law.
e. The value of the property worth more than Rs.16,00,000/-.
13. The learned counsel appearing for the plaintiff would submit that the first defendant has agreed to sell the suit property in favour of the plaintiff for the sale consideration of Rs.8,00,000/- and accordingly Ex.A1 agreement of sale executed and signed by the first defendant and handed over to the plaintiff, after receiving Rs.5,00,000/-, as part sale consideration and also agreed to execute the sale deed on or before 30.05.2000. The appellant / first defendant has also demanded and received an amount of Rs.1,20,000/- from the plaintiff out of balance sale consideration on 23.05.2000 and made Ex.A6 endorsement in the above said agreement itself and signed by the first defendant but the first defendant has not executed the sale deed, after receipt of balance consideration of Rs.1,80,000/-. Therefore, after giving notice, he filed this Suit.
14. The learned counsel appearing for the first respondent / plaintiff has specifically denied the contention of the first defendant that the first defendant received a loan of Rs.1,80,000/- on 10.01.2000 from one Devasagayam and he obtained the above said document in the style of agreement of sale in the name of plaintiff, who is sister of his wife, as pleaded in the written statement or the above said Devasagayam obtained signatures in blank papers, as deposed at the time of oral evidence. The learned counsel for the plaintiff further submitted that the plaintiff has paid Rs.6,20,000/- out of total sale consideration of Rs.8,00,000/- and The balance is only a meagre amount of Rs.1,80,000/-. Further, learned counsel submitted that the plaintiff has proved the means to pay the above said balance sale consideration. Further the learned counsel pointed out that the first defendant has not pleaded and proved that the plaintiff has no means to pay the balance sale consideration and therefore, the plaintiff proved her ready and willing to perform her part of contract. The learned counsel further submitted that the plaintiff and the first defendant entered into an agreement of sale in respect of suit property and to that effect, the first defendant executed Ex.A1 agreement of sale and signed by the first defendant in the presence of witnesses and the witnesses also signed in the above said document and handed over to the plaintiff. Further pointed out that part of sale consideration has been received subsequently and the first defendant made an endorsement Ex.A6 in the above said Ex.A1 agreement of sale and handed over to the plaintiff. Further the above said document is valid in law and therefore, the contention of the first defendant that the vendor alone signed in Ex.A1 agreement of sale and not signed by the plaintiff and on that ground, it is not valid document , cannot be accepted. The learned counsel further submitted that the first defendant has miserably failed to prove the value of the property worth more than Rs.16,00,000/-, as stated in the written statement.
15. The learned counsel appearing for plaintiff further pointed out that on the side of the plaintiff, she has deposed as P.W.1 and also examined the alleged Devasagayam as P.W.2 and examined P.Ws.4&5 as attesting witnesses in Ex.A1 agreement of sale and also Ex.A6 endorsement in Ex.A1 agreement of sale and the above said oral evidence clearly proved the execution of Ex.A1 agreement of sale and also endorsement Ex.A6 by the first defendant, as contended by the plaintiff. Further, the learned counsel pointed out that the first defendant failed to prove the contention raised in the written statement and further the first defendant has deposed at the time of oral evidence contrary to the pleadings in the written statement regarding Exs.A1 and A6 i.e., agreement of sale and endorsement. The learned counsel submitted that the first defendant has admitted the fact that at the time of Ex.A1 agreement of sale and handed over the documents viz., Exs.A2 to A5 and A14 and A15 and therefore, the contention of the first defendant as stated in the written statement or oral evidence are not proved. The learned counsel further submitted that the trial Court has discussed in detail about the oral and documentary evidence adduced on either side and correctly held that Ex.A1 agreement of sale and Ex.A6 endorsement made by the first defendant are proved as true document but the first defendant has failed to prove the contention raised in the written statement or oral evidence and therefore, no need to interfere in the above said findings of the trial Court.
16. Admittedly, the appellant / first defendant is owner of the plaint schedule property and it is not in dispute. In the above said circumstances, the plaintiff filed a suit for specific performance on the basis of Ex.A1 agreement of sale. As per settled principles of law, the initial burden lies on the plaintiff to prove the above said Ex.A1 document is true and valid and also to prove that the plaintiff is always ready and willing to perform her part of contract from the date of agreement till the date of filing the suit. Therefore, in the instant case, the initial burden lies on the plaintiff to prove that Ex.A1 agreement of sale is executed by the first defendant with an intention to sell the suit property. If the plaintiff is proved the above said fact, the burden is shifted to the first defendant to prove that the above said Ex.A1 agreement of sale executed security for loan as requested by one Devasagayam and not executed with an intention to sell the property as pleaded in the written statement or the first defendant has handed over the blank paper to Devasagayam as stated at the time of oral evidence. Further, the first defendant has to prove that the above said Devasagayam alone paid a sum of Rs.1,80,000/- at the time of Ex.A1 agreement of sale and subsequently received on Rs.1,20,000/-, totally received Rs.3,00,000/-.
17. In the instant case, on the side of the plaintiff, she deposed as P.W.1 and also marked Exs.A1 to A15 documents to prove the contention of the plaintiff. Further, on the side of the plaintiff examined the above said Devasagayam as P.W.2 and he specifically denied the contention of the first defendant (i.e.,) the above said Devasagayam had paid a loan of Rs.3,00,000/- and obtained the above said Ex.A1 agreement of sale in the name of plaintiff and also denied that he obtained blank papers as stated in oral evidence of D.W.1. Further, on the side of the plaintiff has examined P.Ws.3, 4 and 5 i.e., document writer of Ex.A1 and eyewitnesses to Ex.A1 and Ex.A6 endorsement made in Ex.A1 agreement of sale.
18. A perusal of Ex.A1 agreement of sale reveal that the first defendant has agreed to sell the suit property in favour of the plaintiff for sale consideration of Rs.8,00,000/- and received Rs.5,00,000/- as advance on the above said date and the first defendant has signed in the above said documents in the presence of two witnesses viz., P.W.4 Rajendran and P.W.5 Vincent Raj and the above said document was written by P.W.3 viz., Vadivel and the above said witnesses signed in Ex.A1 document. Further, Ex.A1 agreement of sale reveal that the first defendant has received Rs.1,20,000/- on 23.05.2000 and made Ex.A6 endorsement in which P.W.5 viz., Vincentraj and one Marly Chandran were signed as attesting witnesses to prove the above said document Ex.A1 agreement of sale and Ex.A6 endorsement. Therefore, the plaintiff herself deposed as P.W.1 and also examined attesting witnesses and writer of the document as P.Ws.3 to 5 viz., Varuvel, Rajendran and Vincentraj to prove Ex.A1 and Ex.A6. A careful perusal of the above said oral testimonies of P.Ws1, 3 to 5 clearly proved that Ex.A1 agreement of sale and Ex.A6 endorsement made by the plaintiff are true as valid , as contended by the plaintiff side
19. The first respondent / plaintiff has also produced Exs.A2 to A5 and also Exs.A14 and A15 i.e., copy of prior title deeds to show the title of the first defendant and also tax receipts for loan and houses. The above said documents handed over by the first defendant also admitted in the written statement and also at the time of evidence of first defendant. The above said fact also clearly proved that Ex.A1 agreement of sale was executed by the first defendant with an intention to sell the suit property after receipt of Rs.5,00,000/- and also received Rs,1,20,000/- subsequently, out of sale consideration and made Ex.A6 endorsement in Ex.A1 agreement of sale.
20. The learned counsel for plaintiff has further submitted that, as per Ex.A1 agreement of sale, the plaintiff was always ready and willing to perform her part of contract and the first defendant has agreed to execute the sale deed on 30.01.2000, after receipt of balance sale consideration. From the pleadings in the plaint and oral evidence reveal that the plaintiff he was waiting at Sub-Registrar's office on 30.01.2000 with balance sale consideration but the first defendant fails to come to Sub-Registrar's Office and execute the sale deed. Further, the plaintiff has produced Exs.A7 and A8 to prove that on the date i.e., on 30.05.2000 the plaintiff was present in the Sub-Registrar's Office and signed in other documents. Therefore, from Exs.A7 and A8 show that the plaintiff was ready and willing to perform her part of contract on 30.05.2000 itself. The plaintiff has issued legal notice Ex.A9 through Advocate on 31.05.2000 and it was returned as 'left'. Further, the plaintiff has published in 'Dinamalar' news paper as per Ex.A12. The plaintiff has also obtained Encumbrance Certificate on 26.06.2000, as per Ex.A13. All the above said documents clearly proved that the plaintiff was always ready and willing to perform her part of contract, as per Ex.A1 agreement of sale. Since the plaintiff has proved by reliable oral and documentary evidence regarding the genuineness of Ex.A1 agreement of sale, Ex.A6 endorsement and also ready and willing to perform her part of contract, the onus shifted to the first defendant to prove his contention.
21. In the instant case, as already pointed out, the first defendant has admitted in the written statement that he executed the document in the style of agreement of sale but it is only contended that one Devasagayam i.e., P.W.2 has agreed to pay a sum of Rs.3,00,000/- as loan and on 10.01.2000 he paid a sum of Rs.1,80,000/- to the defendant as a loan and obtained Ex.A1 agreement of sale on 24.01.2000 itself and obtained other documents of title deeds and subsequently the above said Devasagayam has paid Rs.1,20,000/- on 23.05.2000. Therefore, the case of the defendant is that, no privity of contract between the plaintiff and first defendant and the above said Ex.A1 agreement of sale executed by the defendant for loan obtained from Devasagayam.
22. Admittedly, both first defendant and his wife are Postgraduate teachers and the first defendant not at all stated any acceptable reason to execute the above said agreement of sale for Rs.8,00,000/- in favour of the plaintiff i.e., sister of Devasagayam's wife. The first defendant has also not stated why handed over the copy of deeds relating to the suit property at the time of Ex.A1 agreement of sale. As rightly pointed out by the learned counsel for the plaintiff, the first defendant has not deposed as stated in the written statement. But the first defendant deposed before the trial Court as D.W.1 and at the time of oral evidence, in chief examination it is deposed as the first defendant has received Rs.3,00,000/- in three instalments and at the time of first instalment, the first defendant has not executed any document and at the time of loan received in second time, the above said Devasagayam obtained signatures in two blank papers and at the time of signing the documents nothing has been written and no witnesses have been signed. But contrary to that at the time of cross-examination, the same first defendant has deposed that only he received amount on the date of execution of Ex.A1 and the above said document was given to Devasagayam. Further, he denied at the time of cross-examination that he has not received Rs.1,20,000/- on 23.05.2000. A careful perusal of avaerments made in the written statement, the fact stated in the chief examination and cross-examination reveal that the contention of the defendants are completely contradictory with each other and therefore cannot be accepted since the above said contentions are absolutely false, as rightly discussed by the trial Court and also pointed out by the learned counsel for the plaintiff.
23. The trial Court Judge has discussed in details about the oral evidence of P.Ws.1, 3 to 5 and finally held that he plaintiff clearly proved the contention of the plaintiff. Further, the first defendant himself admitted at the time of evidence that no enmity between the first defendant and P.Ws.2 to 5. It is further admitted that P.W.3 and P.W.5 are distant relatives of the first defendant. In the written statement or at the time of evidence, not stated any reason that the above said witness falsely deposed as against the first defendant and in favour of the plaintiff. A perusal of the above said oral evidence of P.W.1, 3 to 5 are reliable evidence. Further, on the side of the plaintiff has produced documentary evidence to prove that the above said Ex.A1 agreement of sale and Ex.A6 endorsement are true and valid and further proved that the plaintiff always having sufficient means to pay the balance consideration of Rs.1,80,000/- and also always ready and willing to perform her part of contract.
24. Per contra, as rightly discussed by the trial Court, the first defendant has miserably failed to prove that he has received only Rs.3,00,000/- in two instalments from P.W.2 Devasagayam. Further, the first defendant has deposed at the time of oral evidence that he was not aware the fact whether the plaintiff is always ready to obtain the sale deed from the date of sale agreement. The above said fact itself reveal that the first defendant is not all specifically denied that the plaintiff was not ready and willing to perform her part of contract.
25. Considering the above said oral and documentary evidence, the trial Court has correctly concluded that the plaintiff has proved Exs.A1 and A6 agreement of sale and endorsement respectively are true and valid document and the plaintiff is always ready and willing to perform her part of contract and the contention raised by the first defendant in the written statement or oral evidence are not proved. In the above said circumstances, the learned counsel for the appellant/1st defendant relied on a decision of this Court reported in 2007 (1) CTC 57 (A.Ganapathy Vs. S.Venkatesan) and contended that it is necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it and the contract being the foundation of the obligation the order of specific performance is to enforce that obligation.In the instant case, the plaintiff has proved that Exs.A1 and A6 agreement of sale and endorsement respectively are valid, enforceable contract. Therefore the above said decision not helpful to appellant/first defendant.
26. The learned counsel appearing for the appellant/first defendant relied on an another decision of Hon'ble Supreme Court reported in (AIR 1982 SC 20) Gangabai Vs. Chhabubai and contended that, as per the above said decision, the Sub Sec.(1) of Section 92 of the Evidence Act is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that document is a sham. In the instant case, the contention of the first defendant is that the above said document is not intended to be acted upon and therefore, the first defendant can adduce oral evidence contrary to the document. The facts of the above said case is differs and in the above said case clearly proved as the document was not executed with an intention to acted upon. Therefore the above said decision also not helpful to the appellant/first defendant.
27. The learned counsel relied on an another decision of Hon'ble Supreme Court reported in (2000 (1) SCC 434) Ishwar Dass Jain Vs. Sohan Lal and contended that the trial Court has failed to consider that Ex.A1 agreement of sale was not intended to be acted upon but only executed for the purpose of loan obtained by the first defendant from one Devasagayam and therefore, as per the above said principles of law laid down by the Hon'ble Supreme Court, the plaintiff is not entitled to the relief sought for in the suit. A careful reading of the decisions reveals that in the above said case also evidence was lacking as the present case and hence not helpful to the appellant/first defendant.
28. The learned counsel for the appellant / first defendant further relied on an another decision of Hon'ble Supreme Court reported in (2003 (6) SCC 595) Roop Kumar Vs. Mohan Thedani and contended that oral evidence is admissible to show that document executed was never intended to support as an agreement and hence, in the instant case, the first defendant is entitled to let in oral evidence to show that Ex.A1 agreement of sale executed was never intended to support as an agreement. As rightly pointed out by the learned counsel for the first respondent/plaintiff, in the instant case the first defendant failed to prove the fact that the document executed was never intended to operate as an agreement.
29. The learned counsel relied on another decision of this Court reported in (2012 (2) MLJ 204) R.Kumar Vs. R.Sushilkumar and submitted that in a suit for specific performance, the plaintiff should not only plead and prove the terms of agreement but also plead and prove his readiness and willingness to perform his obligation under the contract in terms of the contract and also the jurisdiction to decree specific relief is discretionary and the Court can consider various circumstances to decide whether such relief is to be granted and merely because it is lawful to grant specific relief, but this discretion shall not be exercised in an arbitrary or unreasonable manner and therefore pointed out that in the instant case, the trial Court has exercised in arbitrary manner. As already discussed the plaintiff has pleaded and proved the readiness and willingness in the present case and hence the plaintiff is entitled to the relief of specific performance.
30. The learned counsel appearing for the first respondent / plaintiff rightly contended that all the above said decisions relied on by the first defendant are not applicable to the facts of the present case and in the present case, in the written statement itself, in the execution of Exs.A1 and A6 agreement of sale and endorsement made for receipt of part sale consideration are admitted. But, contrary to the pleadings in the written statement, the first defendant at the time of oral evidence has deposed as if P.W.2 Devasagayam obtained signatures alone in two blank papers and therefore, the first defendant not entitled to lead oral evidence contrary to the averments made in Exs.A1 and A6 documents and also as against his own averments made in his written statement.
31. As already discussed in detail in earlier paras, the plaintiff has proved Exs.A1 and A6 agreement of sale and endorsement respectively are genuine document by adducing reliable oral and documentary evidence and also proved that the plaintiff is always ready and willing to perform her part of contract. But the first defendant has miserably failed to prove his contention in the written statement and also D.W.1 has deposed contrary to his own written statement and the above said decisions relied on by first defendant not helpful to the him. Therefore, the contention of the first defendant that no privity of contract between the plaintiff and first defendant is not correct and the plaintiff has proved Exs.A1 and A6 agreement of sale and endorsement respectively are true and valid documents and also proved that the plaintiff is always ready and willing to perform her part of contract and answered first and second points for consideration in favour of the plaintiff and as against the first defendant.
Point No.3:
32. With regard to 3rd point for consideration, i.e., whether Ex.A1 agreement of sale signed by the appellant / first defendant alone is valid in law is concerned, the learned counsel appearing for the first defendant submitted that the above said document is not valid, since the plaintiff is not signed as one of the party in the above said agreement and relied on the following three decisions of this Court;
33. The learned counsel appearing for the appellant / defendnt has relied on a decision of this Court reported in 2001 (3) MLJ 52 (Pushpa Bal Vs. Dr.Williams and Others). A perusal of the above said decision reveal that it is not at all applicable to the facts of the present case, since in the above said case binding only on first defendant alone and not on the other defendants viz., defendants 3 to 5, who are not parties to the sale agreement. Therefore, all the vendors not signed in the sale agreement and hence, the Court has held that, since all the vendors not signed, the agreement not binding on the defendants.
34. The learned counsel appearing for the appellant/defendant has relied on a decision of this Court reported in (2004 (4) LW 186) R.Chinnadurai Vs. S.Rajalakshmi in which in para 19, reads as under:-
"19. An agreement must have two parties and both are to sign the same. Only then it is an agreement. For this basic necessity, there may be exceptions under exceptional circumstances as it has been advocated on the part of the Courts and the case in hand is not falling under the exceptional cases. Why the plaintiff has not signed the papers is not made clear. It is stated that the defendant volunteered to give it in favour of the plaintiff whereas it is patently revealed that the signatures of the defendant at each and every page differs and it could be patently seen. No mention need be necessary, those signatures have absolutely no connection with the signatures put by the defendant appearing before the Court for deposing evidence as D.W.1. Therefore, under these circumstances, the genuineness of Ex.A.1 has to be proceeded with in the context of the legal requirements for such a document particularly in the absence of any attesting witness being examined as a witness in spite of the sole witness being alive, but the plaintiff has chosen only the scribe to be examined."
35. A perusal of the above said facts of the case reveal that in the above said case, the signatures of the defendant on each and every page were differs and the genuineness of document Ex.A1 has not been proved by examining reliable evidence and therefore, the fact of the above said case is differs from the facts of the present case.
36. The learned counsel appearing for the appellant/defendants has relied on a decision of this Court reported in Another decision reported in 2009 (2) CTC 45 (N.Balammal Vs. Perinbamuthu and Others), in which in para 26 reads as under:-
"26. The aforesaid excerpt from Ex.A.1 would clearly indicate that by no stretch of imagination, it could be termed as agreement to sell. It is a rudimentary principle of law that to constitute an agreement to sell, there should be signatures of two parties in the document concerned and to the barest or minimal extent, there should be recitals relating to the agreement to sell. To the risk of repetition, without being tautologous, I would like to spotlight that absolutely there is no iota or shred of evidence to demonstrate as to which property was sought to be sold and on what date both the parties agreed for such sale. Hence, in such a case, the first appellate Court misdirected itself in holding that the plaintiffs in O.S.No.884 of 1986 proved that it was an agreement to sell."
37. A careful perusal of the facts in the above said decision reveal that in the above said case, absolutely there is no iota or shred of evidence to demonstrate as to which property was sought to be sold and on what date both the parties agreed for such sale. Therefore, the facts of the above said case is not applicable to the present case, since in the instant case, Ex.A1 agreement of sale clearly stated that all the facts required in agreement of sale. Therefore, all the three decisions relied on by the first defendant not helpful to him.
38. Per contra, the learned counsel appearing for the respondent / plaintiff relied on a decision of this Court reported in (1998 (3) L.W.189) Lakshmi Ammal (Died) and 6 others Vs. J.Victor & Others in which in para '9' reads as under:-
"9. It is not the case of the defendants that the said Narayanaswami Pillai has not executed any agreement. In view of the above factual position 1978 which is exhibited as A-35 and in the absence of any denial in the written statement filed in the present suit, I am unable to accept the contention that the present suit filed on the basis of Ex. A-1 is not maintainable. Inasmuch as the other party to the agreement, namely, Narayanaswami Pillai who has agreed to sell the suit property to the plaintiff for a price of Rs. 37,000 has signed is sufficient to enforce the same by way of filing suit for specific performance. In this regard the following statement found at page 248 in the Book, namely "A. Treatise on the Specific Performance of Contracts" by The Rt. Hon. Sir Edward Fry G.C.B., (Sometime one of the Lords Justice of Appeal) is relevant which is extracted hereunder:
"515. The statute requiring that the agreement, or the memorandum or note thereof, shall be signed by the party to be charged therewith, or his agent, and not requiring that it shall be signed by both parties to the contract, it has been held, both in courts of Equity and also in Common Law Courts, that a signature by the party against whom the contract is sought to be enforced is sufficient.
The above observation of the learned Author squarely supports the contention of the respondents herein. In such circumstance, I do not find any infirmity in the present suit filed by the plaintiff on the basis of Ex. A-1."
39. The learned counsel appearing for the first respondent / plaintiff has relied on an another recent decision of the Hon'ble Supreme Court in Civil Appeal No.6197 of 2000, dated 17.12.2005 wherein the Hon'ble Supreme Court has framed points for consideration as to whether an agreement of sale (Ext.2) executed only by the vendor, and not by the purchaser, is valid? and after discussing various earlier decisions and it has finally held in para 7, as follows:-
"7. Therefore, even an oral agreement to sell is valid. If so, a written agreement signed by one of the parties, if it evidences such an oral agreement will also be valid. In any agreement of sale, the terms are always negotiated and thereafter reduced in the form of an agreement of sale and signed by both parties or the vendor alone (unless it is by a series of offers and counter- offers by letters or other modes of recognized communication). In India, an agreement of sale signed by the vendor alone and delivered to the purchaser, and accepted by the purchaser, has always been considered to be a valid contract. In the event of breach by the vendor, it can be specifically enforced by the purchaser. There is, however, no practice of purchaser alone signing an agreement of sale".
40. In view of the above said law laid down by Honourable Supreme Court, and from the facts of this case as already discussed Ex.A1 and Ex.A6 are valid documents as rightly pointed out by the learned counsel for the first respondent/Plaintiff.
41.From the above said discussion, Ex.A1 agreement of sale is valid in law, as rightly held by the trial Court and also rightly contended by the learned counsel for the first respondent / plaintiff and answered the third point for consideration accordingly.
POINT NO.4:
42. With regard to fourth point for consideration, as already discussed in detail, the plaintiff has proved that the first defendant has agreed to sell the suit property in favour of the plaintiff and the plaintiff is always ready and willing to perform her part of contract. But the first defendant has miserably failed to prove his contention that only P.W.2 Devasagayam has given a loan of Rs.3,00,000/- in two instalments and obtained the agreement of sale and also received documents of title Ex.A2 and Exs.A14 and A15 and no privity of contract between the plaintiff and the first defendant. Therefore, the above said P.W.2 Devasagayam is not necessary party to the suit and the suit cannot be dismissed on the ground of non joinder of above said Devasagayam and answered this point for consideration accordingly.
Point No.5.
43. In view of the finding, in points for consideration Nos. 1 to 4. , the first respondent herein / plaintiff in the suit is entitled to the relief of specific performance, as prayed for in the plaint and therefore, the appeal filed by the appellant / first defendant is to be dismissed and answered this point for consideration accordingly.
44.In the result, the Appeal Suit is dismissed with costs, confirming the Judgment and Decree dated 27.02.2003 made in O.S.No.84 of 2000 on the file of the Sub-ordinate Court, Padmanabhapuram.
MPK/VSN To The Subordinate Court, Padmanabhapuram.