Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:
20. 12 2013 Coram: The Hon'ble TMT. JUSTICE PUSHPA SATHYANARAYANA Second Appeal No.3 of 2006 1. Mangai 2. K. Thamilarasan 3. K. Loganathan 4. K. Ravichandra ... Appellants vs.
1. M. Venkatachalam 2. M.Gnaneswaran 3. K. Parthiban 4. Rajalakshmi 5. Minor Vimalraj 6. Mnior Raja ... Respondents Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree dated 30.08.2001 and made in A.S. No.68 of 1996 on the file of the I Additional District Judge, Dharmapuri, confirming the judgment and decree dated 29.03.1996 passed in O.S. No.97 of 1990 on the file of the Subordinate Judge, Krishnagiri. For Appellants : Mr. S. Sathiachandran For RR1& 2 : Mr. Hariharan for Mr. V. Nicholas For RR3to 6 : Mr. M. Jayachandran ----- JUDGMENT
The unsuccessful defendants 1 and 4 to 6 before the Courts below in a suit for specific performance, are the appellants in this Second Appeal.
2. The case of the plaintiffs is that the suit properties belong to the defendants and they had agreed to sell the same to the plaintiffs for a price of Rs.90,000/- and executed a registered deed of agreement of sale in favour of the plaintiffs on 05.3.1990. As per the terms of the sale agreement, the sale consideration was fixed at Rs.90,000/- out of which, the defendants received a sum of Rs.15,000/- as advance and agreed to receive the balance of Rs.75,000/- and to execute and register the sale deed conveying the suit property in favour of the plaintiffs within a period of three months, ie., on or before 04.6.1990. Pursuant to the agreement, the plaintiffs were also put in possession of the property by the defendants. The plaintiffs further contended that despite several requests to execute the sale in their favour, after receiving the balance of sale consideration, the defendants have been evading the same. Therefore, the plaintiffs issued a notice dated 02.5.1990 calling upon the defendants to receive the balance of sale consideration and to execute the sale deed to which the defendants sent a reply notice contending several false allegations. Hence, the suit in O.S. No.97 of 1990 was filed by the plaintiffs before the Subordinate Judge, Krishnagiri.
3. The defendants have resisted the suit contending that the description or the suit property is incorrect, vague and not in existence. He further contended that the plot measuring 87 feet East - West and 15 feet North - South belongs to one Vijaya and the rest of the balance property belongs to defendants 2 to 6 and one Selvam. The defendants denied execution of the sale agreement and its contents and also the part performance of contract by delivering possession to the plaintiffs. It was the further case of the defendants that the third defendant had pressurized the other defendants to execute the mortgage deed in respect of portion of the property in S. No.54/15 to raise a loan and save the lorry which he was using in his business and hypothecated to a financier and when the other defendants refused to sign, the third defendant emotionally threatened and compelled them to sign in various papers. Therefore, the defendants bona fide plead that they had only signed the mortgage deed and were never aware of the fact that it was an agreement to sell. It was further contended by the defendants that as per the Registered Will dated 01.7.1974 executed by one Rajammal, the defendants along with one Selvam are entitled to the suit property in common and since the said Selvam is not a party to the suit, the suit is not maintainable. Besides, the defendants had disputed the value of the property fixed under the agreement. The defendants 3 and 6 also had filed separate written statements and contested the suit.
4. The learned trial Judge, who framed as many as five issues, considered the evidence adduced by the witnesses and the documents marked therein, viz., Exs. A.1 to A.9 filed on behalf of the plaintiffs and Exs. B.1 to B.7 filed on the side of the defendants, by judgment dated 29.3.1996, had decreed the suit. Aggrieved by the same, the defendants 1 and 4 to 6, had filed appeal in A.S. No.68 of 1996 on the file of the I Additional District Court, Dharmapuri, at Krishnagiri.
5. At the time of admitting the Second Appeal, the following substantial questions of law were formulated for consideration:- (i) Whether the Courts below were right and justified in law in holding that the suit does not suffer from non-joinder of parties despite the crystal clear evidence that apart from the defendants, the suit property did belong to one Selvam, who was not added as a party to the suit?. (ii) Whether the Courts below were right and justified in law in decreeing the suit believing the version of the plaintiffs without even examining the crucial witness, namely, the person who drafted the sale agreement in question, when the defendants have categorically claimed that in fact there were 2 sale agreements written relating to the suit property?.
6. Heard Mr. S. Sathiachandran, learned counsel appearing for the appellants/defendants 1 and 4 to 6 and Mr. T.M. Hariharan, learned counsel for the Respondents 1 and 2 as well as Mr.M.Jayachandran, learned counsel on behalf of the Respondents 3 to 6 and perused the records.
7. The suit property to an extent of 30 cents out of 46 cents in S.No.54/15 is situate at Vadamalampatti Village, Krishnagiri Taluk, with a well including 5 HP Electric Motor and 20 coconut trees. The case of the appellants / defendants 1 and 4 to 6 is that they never intended to sell the property and it was only a mortgage deed which they had signed without reading the contents of the documents. It was also stated by the defendants that there were two sale agreements one for sale consideration of Rs.1,65,000/- and the other one was for Rs.90,000/-. The reason for writing two sale agreements was to avoid the registration charges. Though in the written statement, the defendants had contended that the description of the suit property is wrong, they have not disputed the extent of land mentioned in Ex.A.1 agreement. Since the defendants had raised the objection to the identity of the property, a Commissioner was appointed at the instance of the plaintiffs and the report of the Commissioner and the sketch filed along with the report, marked as Exs.C.1 and C.2, confirm that the suit schedule property is described correctly. From the materials available on record, it is seen that the plaintiffs had effected Ex.A.3 notice calling upon the defendants to execute the sale deed pursuant to Ex.A.1 agreement to which, the defendants 1, 2, 4 and 5 have sent a reply stating that the suit property belongs to defendants 2 to 6 and one Selvam as per Will dated 01.7.1974. The said Selvam is the eldest brother of these defendants and the properties are divided between these brothers orally. The alleged Will dated 01.7.1974 has not been marked before the Court. Secondly, if the said Selvam is the eldest brother of these defendants, certainly, they would have alerted him about the suit. If really the said Selvam had any right over the suit property, he would have got himself impleaded in the suit. From a very perusal of the report of the Commissioner, it can be seen that the property situate in the north of the suit property is one belonging to the said Selvam. As such, it is clear that there was an oral partition in the family of the defendants and the property lying North of the suit property fell to the share of the said Selvam and the suit property jointly belong to the other defendants, who had executed Ex.A.1. Therefore, it can be safely concluded that the suit property belongs to the defendants exclusively.
8. The next question that arises for consideration is whether the execution of Ex. A.1 is true and valid. The defendants 1 to 5 have admitted their signature in Ex.A.1. Further, the third defendant has stated that there were two sale agreements executed with regard to the suit property and that the signatures were obtained in Ex.A.1 which can be given only lesser consideration. In this regard, P.W.2 one of the witness to Ex.A.1, has deposed that the sale agreement was written by one Shanmugam and himself and one Faziluddin had signed as witnesses. P.W.2 has further stated that at the time of writing Ex.A.1, the brother of defendants 2 to 6, viz., Selvam, was not there. It is also seen that P.W.2 has denied in his cross-examination with regard to statements that the sale consideration was fixed at Rs.1,65,000/- and that the sale agreement was written instead of mortgage deed. It is significant to note that the defendants 1 to 5 have not denied their signature in Ex.A.1 and their allegation that the signatures were affixed thinking that it was only the mortgage deed, is also not believable and the other allegation that it was signed at the instance of the third defendant, who wanted to raise money to save his lorry from the financier, are all appear to be cock and bull story and not believed by the Courts below.
9. It is interesting to note that when the First Appeal was pending, defendants 2 and 3 have received their share of sale consideration from the second plaintiff Gnaneswaran and executed the sale deed of their share. This goes to show that the allegation of the defendants that they had mistakenly signed the agreement thinking that it was a mortgage deed is not correct and that they have not approached this Court with clean hands.
10. Further, the plaintiffs have been ready and willing to perform their part of the contract from the date of their agreement, and they had also effected the suit notice Ex.A.3 within the time stipulated under Ex.A.1 expressing their willingness to perform their part of contract whereas the defendants instead of performing their part of contract, have brought in various unbelievable stories. The fact that the defendants 2 and 3 had parted with their share of property by receiving proportionate sale consideration from the plaintiff would go to show that the defendants are not bona fide in their contention and that they are only evading the execution of the sale deed.
11. Considering the above circumstances, the plaintiffs are entitled to decree for specific performance. Accordingly, the defendants are liable to execute the sale deed with respect to the suit property within a period of one month from the date of receipt of a copy of this judgment after receiving the balance sale consideration of Rs.75,000/- from the plaintiffs. For the foregoing reasons, the Second Appeal is dismissed confirming the judgments and decree passed by the courts below with cost. Consequently, Connected Miscellaneous Petition is closed. 20 12 2013 Index : Yes Internet : Yes gri To 1. I Additional District Judge Dharmapuri 2. Subordinate Judge Krishnagiri 3. The Record Keeper V.R. Section High Court Madras. PUSHPA SATHYANARAYANA, J.
gri Pre-delivery Judgment in S.A. No.3 of 2006 Delivered on 20 12 2013