Madras High Court
Muthurajan vs Govindammal (Died) on 15 December, 2021
A.S.No.1 of 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.12.2021
CORAM
THE HONOURABLE MR.JUSTICE T.RAJA
and
THE HONOURABLE MR.JUSTICE D.BHARATHA CHAKRAVARTHY
A.S.No.1 of 2010
Muthurajan ... Appellant
-vs-
1. Govindammal (died)
2. Muthu Jayalakshmi
3. Annapoorani
4. M.Abirami ... Respondents
(R2 and 3 were brought on record as L.Rs. Of
the deceased 1st respondent and R4 impleaded
as proposed respondent vide order dated
11.12.2019 made in CMP.Nos.18333 and
18334/2017 in A.S.No.1/2010)
Appeal Suit filed under Section 96 read with Order XLI Rule 1 of
CPC. against the judgment and decree dated 06.08.2009 in
O.S.No.427/2005 on the file of the learned Additional District Judge,
Additional District-cum-Fast Track Court No.V, Coimbatore at
Tiruppur.
For Appellant : Mr.C.R.Prasannan
For Respondents : Mr.S.Parthasarathy,
2 to 4 Senior Counsel
assisted by Mr.C.Veeraraghavan
1/8
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A.S.No.1 of 2010
JUDGMENT
(Judgment of the Court was pronounced by T.RAJA, J.)
This Appeal Suit has been filed against the judgment and decree
dated 06.08.2009 passed in O.S.No.427/2005 on the file of the
learned Additional District Judge, Additional District-cum-Fast Track
Court No.V, Coimbatore at Tiruppur.
2. Mr.C.R.Prasannan, learned Counsel appearing for the
appellant briefly narrating the background facts would submit that the
defendant late Govindammal, who is the mother of the
plaintiff/appellant herein, was the absolute owner of the suit property.
Therefore, a sale agreement dated 13.10.2003 was entered into
between the plaintiff/appellant and the defendant/deceased 1st
respondent, fixing the sale price at Rs.25,00,000/- and also indicating
the time limit at 12 months. However, the time was not stipulated as
the essence of the agreement. It is also stated that on the date of
the execution of the sale agreement, a sum of Rs.15,00,000/- was
also paid to his mother by the appellant herein. Subsequently, the
mother went back from the terms of the agreement. Consequently,
the appellant issued a pre-suit notice dated 22.02.2005 expressing his
readiness and willingness to pay the money for the execution of the
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A.S.No.1 of 2010
sale deed for which a reply dated 05.03.2005 was received from the
deceased 1st respondent denying the execution of the sale agreement
that she had signed in blank stamp papers and plain papers and that
was fabricated as though she has executed an agreement for sale of
the suit property, therefore suit for specific performance of the
contract would not lie.
3. After filing a Written Statement by the defendant-the
mother of the plaintiff who was then aged about 71 years, the matter
was taken up for trial. The learned trial Judge has framed the
following issues for consideration:
1. Whether the plaintiff is entitled to the relief of specific
performance of the contract of sale?
2. Whether the suit sale agreement dated 13.10.03 is truly
executed by the defendant? and
3. To what relief?
Thereafter, the trial court, taking into account the facts that the sale
agreement dated 13.10.2003 was executed between the mother and
the son whereas the mother in her written statement stated that she
had no intention or necessity to sell the property-in-question to
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A.S.No.1 of 2010
anybody much less to her only son, the plaintiff therein; that the
property described in the plaint would worth more than
Rs.1,50,00,000/- for which only Rs.25,00,000/- alone was agreed
upon as a total sale price; that the defendant had no desire as alleged
in the written statement to settle the same in favour of the plaintiff;
and that her desire was to keep the property as her absolute property
till her death and after her death her property shall devolve as per
law, namely, among the plaintiff and two sisters, and also going into
the evidence produced during the trial that the value of the property
was more than Rs.2,10,00,000/-, as admitted by the parties and
supported by Ex.X1, has dismissed the suit, however, passed a
direction, directing the defendant to pay damages of Rs.15,50,000/-
to the plaintiff with interest at 12% from the date of the plaint till the
date of payment as the plaintiff has paid a sum of Rs.15,00,000/- to
the defendant and they are only son and mother. Aggrieved by the
same, the plaintiff has filed the present Appeal. However,
unfortunately, during the pendency of the appeal, the mother passed
away. Now the lis is between the brother and the sisters.
4. Mr.C.R.Prasannan, learned Counsel appearing for the
appellant also assailing the conclusions and findings reached by the
trial court refusing the prayer for granting the decree for Specific
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A.S.No.1 of 2010
Performance in favour of the appellant stated that when it has been
agreed by the deceased mother-defendant that a sum of
Rs.15,00,000/- was paid by the appellant to her, the learned trial
court, while directing the refund of the said amount of
Rs.15,00,000/- with interest at the rate of 12% ought to have created
charge over the property because it is not known after the death of
the mother of the appellant whether the appellant's sisters would
repay the money. Therefore, in all fairness, the trial court ought to
have created charge as per Section 100 of the Transfer of the Property
Act, 1982.
5. Learned Counsel for the appellant further stated that when
a sum of Rs.15,00,000/- was admittedly paid and that has been
proved inasmuch as that the direction given by the trial court for the
payment of Rs.15,50,000/- to the plaintiff with interest at 12% clearly
shows that the amount of Rs.15,00,000/- was paid in the year 2003,
the appellant having lost huge money in 2003, 18 years ago, cannot
be advised to take the money with a meagre interest of 12%.
Therefore, as it is also the will and wish of the deceased mother-
defendant that after her life time, the suit property should be
partitioned among her children, the suit for specific performance may
be granted by this Court to the extent that the plaintiff as a son is
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A.S.No.1 of 2010
legally entitled to inherit the property-in-question.
6. Mr.Parthasarathy, learned Senior Counsel assisted by
Mr.C.Veeraraghavan, learned Counsel appearing for the respondents 2
to 4 also took time to take instructions. But after some times, when
the matter was listed, finding it difficult to get a favourable response
fairly stated that the daughters of the 1st respondent-defendant have
also filed a civil suit. Therefore, passing a partial decree for specific
performance granting 1/3rd share would be causing more
encumbrances and litigations among them, he pleaded.
7. We also find some merits on the said submissions.
Therefore, we hereby confirm the impugned decree and judgment
passed by the learned trial court, directing the defendant to pay a
sum of Rs.15,50,000/- back with interest at 12% to the
plaintiff/appellant herein by virtue of Section 100 of the Transfer of
the Property Act, 1882, however, the appellant shall have a charge
over the property-in-question till the said amount is paid with
interest.
8. With this observation, the Appeal Suit is disposed of. No
costs.
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A.S.No.1 of 2010
(T.R.J.,) (D.B.C.J.,)
tsi 15.12.2021
To
The Additional District Judge, Additonal District Court-cum-Fast Track
Court No.V, Coimbatore at Tiruppur.
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A.S.No.1 of 2010
T.RAJA, J.
and
D.BHARATHA CHAKRAVARTHY, J.
tsi
A.S.No.1/2010
15.12.2021
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A.S.No.1 of 2010
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