Madras High Court
Nallan vs Palaniyandi (Died) on 5 January, 2021
A.S.No.202 of 1996
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 05.01.2021
CORAM:
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.No.202 of 1996
Nallan ...Plaintiff/Appellant
Vs.
1.Palaniyandi (died)
2.Palaniammal
3.Parvathi
4.Saroja
5.Chellakannu
6.Elangovan
7.Panneer
8.Baskar ..Defendant/Respondent
(Respondents 2 to 8 are brought on record vide order dated 02.12.2019)
PRAYER: This Appeal Suit is filed under Section 96 of Civil Procedure
Code, against the judgment and decree made in O.S.No.97/91 on the file of
the Subordinate Judge, Pattukottai dated 28.02.1994.
For Appellant : Mr.A.R.Murugesan
For Respondent : No Appearance
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A.S.No.202 of 1996
JUDGMENT
Aggrieved over the decree and judgment of the trial Court
dismissing the suit filed for specific performance, the present appeal is
filed.
2. For the sake of convenience, the parties are referred to herein,
as per their rank before the Trial Court.
3.The brief facts leading to the filing of this appeal are as follows:-
The defendant has agreed to sell the suit property on 26.08.1987
for a total sale consideration of Rs.44,700/- and also received a sum of
Rs.25,000/- as advance and agreed to execute the sale deed within a period
of four years. Thereafter, on 28.08.1989, the plaintiff paid a sum of
Rs.15,000/-. Thereafter, in the month of January, 1991, the plaintiff
requested the defendant to execute the sale deed. But he has evaded the
sale and hence, the plaintiff issued a legal notice on 08.07.1991, which was
replied with false allegations. Hence, the suit.
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A.S.No.202 of 1996
4. The case of the defendant is that the defendant had five
daughters. The suit property and other properties were already partitioned
to his daughters in the year 1987. The first item of the property and other
properties were already sold to one Velukannan by the plaintiff and he is in
possession of the property and the second item of the property alone is in
possession of the defendant's wife. There was a dispute between the
defendant and his brother, which was culminated into a criminal case. At
this stage, the plaintiff being a son-in-law of the defendant, under the
pretext of helping in the criminal case, obtained a signature from the
defendant in blank papers and created the sale agreement. It is also denied
that sale consideration has been received.
5. Based on the pleadings, the trial Court has framed the following
issues:-
1) Whether the plaintiff is entitled to specific performance as
prayed for?
2) Whether the agreement dated 26.08.1987 is fabricated and is
it true that the agreement came into existence after payment of Rs.
25,000/- as advance?
3) Is it true that on 28.08.1989, the first defendant received a
sum of Rs.15,000/- towards further sale consideration
4) To what other reliefs?
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A.S.No.202 of 1996
6. Based on the above pleadings, on the side of the plaintiff, P.W.1
and P.W.2 were examined and Exs.A1 to A8 were marked. On the side of the
defendant, D.W.1 and D.W.2 were examined and Exs.D1 to D8 were marked.
7. Based on the evidence and materials, the trial Court had
dismissed the suit as against which, the present appeal is filed.
8. The learned counsel for the appellant vehemently contented
that the trial Court has not appreciated the entire facts properly and infact,
the trial Court has failed to note that the defendant has denied the
agreement evasively. The trial Court has failed to consider that the
defendant stated that he put his thump impression only in a blank paper,
whereas the agreement is written on stamped papers. Hence, it is the
contention that the plaintiff has already paid the substantial sale
consideration. Therefore, he is entitled for specific performance. Further,
he submitted that time granted for executing the sale consideration as per
the agreement is four years and the plaintiff was always ready and willing
to purchase the property and he has also paid a substantial portion of the
sale consideration. The trial Court has failed to consider these aspects and
dismissed the suit. Hence, he prayed for allowing the appeal.
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A.S.No.202 of 1996
9. There was no representation for the respondents.
10. Considering the submissions and the pleadings, the following
points arise for consideration in this appeal:-
(1)Whether the plaintiff is ready and willing to perform his part of
contract to seek equitable relief of specific performance?
2)Whether the plaintiff has established the genuineness of the
agreement dated 26.08.1987?
3)To what other reliefs?
11. The suit has been laid to enforce the contract dated
26.08.1987. It is the case of the plaintiff that the defendant has agreed to
sell the property for a total consideration of Rs.44,700/- and entered into an
agreement with the defendant on 26.08.1987 itself and paid a sum of
Rs.25,000/- as an advance and the time agreed to complete the sale is four
years from the date of agreement and he paid further amount of Rs.15,000/-
on 28.08.1989, whereas it is the specific case of the defendant that he never
entered into any agreement for selling the property. The plaintiff being son-
in-law of the defendant obtained his signature in a blank paper, while a
criminal case is pending between the defendant and his brother Natarajan
and later, the agreement was created. Hence, it is the contention that the
agreement was never executed.
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A.S.No.202 of 1996
12. I have heard the submissions of the learned counsel for hte
appellant and perused the entire materials.
13. The fact that the plaintiff has married the daughter of the
defendant is not disputed. The evidence also indicated that the plaintiff is
also an ex-employee of the Postal Department. The defendant is totally a
rustic and illiterate and aged person. When the plaintiff is being a son-in-
law of the defendant and being in a dominant position to dominate the Will
of the father-in-law, who was a rustic and an illiterate, the entire burden lies
on the plaintiff to show that the contract said to have been executed by his
father-in-law is genuine and the transaction was in good faith. It is the
contention of the plaintiff that on 26.08.1987, an agreement came to be
executed by the defendant, namely his father-in-law. Perusal of Ex.A1 would
indicate that the defendant put his thump impression in the sale agreement.
Though P.W.2, one of the witnesses was examined to show that the contract
came to be executed by the defendant, this Court is unable to rely on the
oral evidence of P.W.1 and 2.
14. Taking into consideration of the relationship between the
parties, if really there was an agreement finalized, there was no reason
whatsoever for purchasing stamp papers in the year 1986 itself for the
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A.S.No.202 of 1996
agreement to be concluded in the year 1987. This aspect has not been
explained by the plaintiff in anywhere in his evidence and pleadings. It is
the specific case that stamp papers are purchased by him only for the
purpose of agreement. It is the evidence of P.W.1 noted that after purchase
of stamp papers agreement came to be executed within few months.
However it is also found to be false for the simple reason that Ex.A1 was
purchased on 30.06.1986 more than a year of agreement. These facts
created serious doubts about the genuineness of the agreement and the
time stipulated in the agreement is also created doubt. The plaintiff said to
have paid a sum of Rs.25,000/- as an advance and further sum of Rs.
15,000/- on 28.08.1989 as substantial sale consideration. To pay the
remaining amount of Rs.4,700/-, no prudent man will wait for another year
and get the sale deed without taking any action. If really the agreement
was entered for sale of the property, the normal conduct of the plaintiff
would be to pay the amount immediately and register the document in his
name, whereas, stipulating four years period to execute the contract itself
creates serious doubt about the genuineness of the agreement. It is also to
be noted that the defendant is a rustic and an illiterate man and entire
agreement was said to have been written by the scribe as per the evidence
of P.W.1. There is no whisper whatsoever in the agreement as to whether
the contents of the agreement have been read over to the defendant and he
understood the scope of the document. In the absence of the proof to show
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A.S.No.202 of 1996
that the contents were understood and read over to the defendant and
thereafter the agreement was executed particularly by an illiterate person,
one cannot merely on the basis of some evidences in his support contend
that agreement is valid and genuine. On this aspect itself, this Court
entertains serious doubt about the agreement.
15. Besides, absolutely there is no whisper whatsoever made in the
plaint as to the readiness and willingness of the plaintiff to get equitable
relief of specific performance. There is no averment made in the pleadings
as to the readiness and willingness. Before amendment of Section 16 of the
Specific Relief Act, 1963 it is mandatory for the person, who is seeking
specific relief, to plead and prove the readiness and willingness. Entire
plaint when scanned absolutely, there is no pleading as to the readiness and
willingness. This also disentitle the plaintiff to seek equitable relief. The
good faith of transaction is not proved by the plaintiff, who is the son-in-law
and an ex-employee of the postal department. Such being the position, the
genuineness of the document itself has not been established. Merely based
on the oral evidence, the Court cannot grant discretionary relief of the
specific performance. Accordingly, the points are answered.
16. In the result, this appeal is liable to be dismissed and
accordingly, this Appeal Suit is dismissed and the judgment and decree
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A.S.No.202 of 1996
passed in O.S.No.97 of 1991, dated 28.02.1994 on the file of the
Subordinate Judge, Pattukottai is confirmed. No costs.
05.01.2021
Index : Yes/No
Internet : Yes/No
ta
To
1.The Subordinate Judge, Pattukottai
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
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A.S.No.202 of 1996
N.SATHISH KUMAR, J.
ta
A.S.No.202 of 1996
05.01.2021
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