Madras High Court
R.Ganesan (Died) vs S.Om Murugan on 2 July, 2021
AS.No.622 of 2014
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 02.07.2021
CORAM:
THE HON'BLE MR.JUSTICE G.K.ILANTHIRAIYAN
AS.No.622 of 2014 and
MP.No.1 of 2014
1.R.Ganesan (died)
2.G.Rajammal
3.G.Mohanram
4.G.Nithyasuganya
(Appellants 3 & 4 brought on record
as LR's of the deceased 1st appellant
vide order of court dated 11.12.2019
made in CMP.No.1388 of 2018 in
AS.No.622 of 2014) ... Appellants
Vs.
S.Om Murugan ...Respondent
PRAYER:
Appeal Suit is filed under Section 96 r/w Order 41 & Rule 1
of CPC against the decree and judgment passed by the learned II
Additional District Judge of Salem in OS.No.148 of 2012 dated
10.01.2014
For Appellants : Mr.K.Thilageswaran
For Respondent : Mr.T.Muruamanickam,
Senior Counsel
for M/s.Zeenath Begum
1/24
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AS.No.622 of 2014
JUDGMENT
The Appeal suit is filed against the decree and judgment passed by
the learned II Additional District Judge of Salem in OS.No.148 of 2012
dated 10.01.2014.
2. For the sake of convenience, the parties are referred to as per
their ranking in the trial Court.
3. The suit is filed for specific performance. The case of the
plaintiff is that the suit property belongs to the first defendant. The
plaintiff and the first defendant entered into an agreement for sale for
total sale consideration of Rs.13,75,000 and the plaintiff paid a sum of
Rs.1,00,000/- on the date of agreement dated 25.10.2010. The time was
fixed to perform their respective part of the contract for three months. On
the date of the agreement for sale itself, the first defendant handed over
the possession and the plaintiff is in possession and enjoyment of the suit
property. The plaintiff is always ready and willing to perform his part of
the contract. While being so, on 02.12.2010, further sum of Rs.1,00,000/-
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, on 24.12.2010 further sum of Rs.2,50,000/- was received by the first
defendant and acknowledged the same on the backside of the agreement
for sale, thereby the time for payment of the balance sale consideration
and execution of sale deed extended till 30.08.2011. Thereafter, in spite
of several request made by the plaintiff to receive balance sale
consideration and to execute the sale deed, the first defendant wantonly
evaded the execution of sale deed. Therefore, the plaintiff caused notice
on 25.08.2011, thereby called upon the first defendant to receive balance
sale consideration and execute sale deed on 29.08.2011 between 10.30
a.m. and 03.00 p.m. at Sub Registrar Office, Pethanaickenpalayam,
Salem district. The notice was duly received by the first defendant and
failed to come before the Registrar Office and thereby failed to perform
his part of the contract as agreed by him by the agreement for sale dated
25.10.2010. The second defendant is none other than the wife of the first
defendant. On receipt of the notice issued by the plaintiff, the first
defendant executed settlement deed in favour of the second defendant on
22.06.2011 in order to cheat the plaintiff. Hence, the suit.
4. Resisting the same, the first defendant filed written statement
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AS.No.622 of 2014
and stated that he never received any amount from the plaintiff and did
not execute any agreement for sale in favour of the plaintiff. The plaintiff
is a stranger to him and he also specifically denied the subsequent
payment made on 02.12.2010 and 24.12.2010. On receipt of the notice,
the first defendant caused reply notice on 02.09.2011 and categorically
denied all the averments made in the legal notice issued by the plaintiff
dated 25.08.2011. The first defendant admits the execution of the
settlement deed in favour of the second defendant. Further, the case of the
first defendant is that he was always under the influence of alcohol and
taking advantage of his drunkenness, one of his friend PT.Kumar
obtained his signature in the blank papers on payment of some amount.
Thereafter he sets up the plaintiff as if the first defendant agreed to sell
his suit property to the plaintiff. He is retired English Professor and
drawing pension of more than Rs.40,000/- per month and as such there is
absolutely no need for him to sell the suit property to the plaintiff. After
his retirement, he is working as Principal in E.R.K Arts and Science
College at A.Pallipatti and he is a guide for Ph.D. students.
5. The second defendant filed separate written statement and stated
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that the first defendant executed settlement deed in her favour by the
settlement deed dated 22.06.2011. The first defendant is a drunkard and
utilising the circumstances, one of his friend sets up the plaintiff and filed
false and frivolous suit only to grab the suit property. The plaintiff is
unknown person by their family and as such absolutely no cause of action
to file the suit for specific performance.
6. On hearing the rival pleadings, the learned trial Judge framed the
following issues for determination of the suit :-
1. Whether the plaintiff is ready and willing to
perform his part of contract?
2. Whether the gift settlement deed executed by the
first defendant in favour of the second defendant is
to be declared as null and void?
3. Whether the plaintiff is entitled to the relief of
permanent injunction?
4. To what relief, is the plaintiff is entitled to?
The said issues were re-casted by the trial court as follows for
convenience:-
1. Whether the suit sale agreement is forged one?
2. Whether the plaintiff is ready and willing to
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perform his part of contract
3. Whether the gift settlement deed executed by the
first defendant in favour of the second defendant
is to be declared as null and void?
4. Whether the plaintiff is entitled to the relief of
permanent injunction as prayed for?
5. To what relief, if any, the plaintiff is entitled?
7. In support of the plaintiff's case, P.W.1 and P.W.2 were
examined and nine documents were marked as Ex.A.1 to Ex.A.9. On the
side of the defendants, D.W.1 to D.W.3 were examined and Ex.B.1 to
Ex.B.19 were marked. On considering the oral and documentary
evidences adduced by the respective parties and the submission made by
the learned counsel, the trial Court decreed the suit. Aggrieved by the
same, the defendants have preferred this appeal suit.
8. Mr.K.Thilageswaran, the learned counsel for the appellants
would submit that the deceased first defendant is the absolute owner of
the suit property. He purchased the suit property by the sale deed dated
25.09.1989, which was marked as Ex.B1 and Ex.B2. The first defendant
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was a drunkard and he was always under influence of alcohol. He used to
get money from his friend P.T.Kumar. While receiving the money, the first
defendant signed in the blank papers. Thereafter, he sets up the plaintiff
and filed the suit for specific performance. The plaintiff is completely
strange person to the defendants and the defendants never intended to sell
the property. Admittedly, the first defendant was retired Professor and
even after his retirement he was guiding so many Ph.D. students and
earned reasonable income during his life time. Therefore, the defendants
were never in the need of money at any point of time. In fact, the suit
properties were purchased by the registered sale deed dated 25.09.1989
and it is an agricultural land admeasuring 4.30 acres. No prudent man
will agree to sell the property admeasuring 4.30 acres for the sale
consideration of Rs.13,75,000/-. Therefore, on receipt of the legal notice
dated 25.08.2011, it was suitably replied by the defendants denying very
execution of the agreement for sale. It is also evident from the said notice,
the plaintiff called upon the first defendant to come to Registrar Office for
execution of sale deed within a period of four days, namely on
29.08.2011. In fact, notice was received only on 29.08.2011 and as such
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the intention of the plaintiff is only to grab the suit property. The plaintiff
along with his friends fabricated the agreement for sale and filed the
present suit.
8.1 He further submitted that the defendants also lodged complaint
on 02.09.2011 before the Commissioner of Police with regards to
fabrication of agreement for sale in the name of the plaintiff. Therefore,
the plaintiff has approached the court by way of specific performance suit
with unclean hands and he is not entitled for any relief. The relief of
specific performance is equitable relief and as such the plaintiff is not at
all entitled for any relief under the Specific Performance Act. That apart,
he also failed to prove his readiness and willingness to perform his part of
contract at any point of time. Even according to the plaintiff, on the date
of agreement he paid a sum of Rs.1,00,000/- and he paid another sum of
Rs.2,50,000/- and time was extended till 30.08.2011 to perform his part
of the contract. Even after caused legal notice dated 25.08.2011 and at
the time of filing the suit, the plaintiff did not deposit the balance sale
consideration before the court below. Therefore, he failed to prove his
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readiness and willingness by paying the balance sale consideration. In
fact, the plaintiff applied for certified copy of the settlement deed which
was marked as Ex.A8 on 15.07.2011. Therefore, he had knowledge about
the settlement deed as early as 15.07.2011. Even then, he did not even
whisper about the settlement deed in his legal notice dated 25.08.2011,
and simply called upon the first defendant to execute the sale deed. The
legal notice caused on 25.08.2011 whereas the suit was laid only on
17.08.2012, nearly after period of one year. There are material and
factual contradictions among the witnesses and evidences produced by
the plaintiff and as such the plaintiff is not at all entitled for the relief of
specific performance. Though, the defendants specifically denied the
execution of the agreement for sale, even then the burden of proof was
not shifted to the plaintiff and erroneously shifted on the shoulder of the
defendants and allowed the suit. In support of his contention, he relied
upon the judgment in the case of S.Sarojini and Ors. Vs. P.Mariappan
reported in 2018 (4) CTC 2013.
9. Per contra, Mr.T.Murugamanickam, Senior Counsel appearing
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for the respondent contended that the first defendant never denied the
signature found in the agreement for sale. Mere denying the execution of
the sale agreement dated 25.10.2010 does not mean that the first
defendant never executed any agreement for sale. On the date of the
agreement, the first defendant received a sum of Rs.1,00,000/- as an
advance and subsequently on 02.12.2010 received a sum of Rs.1,00,000/-
and thereafter on 24.12.2010, received a sum of Rs.2,50,000/-. All the
payments were duly received by the first defendant and accordingly
endorsed in the backside of the agreement for sale and simultaneously
extended time to perform their part of the contract till 30.08.2011. Till
25.08.2011, the first defendant did not come forward to receive the
balance sale consideration and also evaded the execution of the sale deed.
Therefore, the plaintiff caused legal notice on 25.08.2011, thereby called
upon the first defendant to receive the balance sale consideration at the
Registrar Office and execute the sale deed. Legal notice was duly received
by him by the acknowledgment card dated 29.08.2011. According to the
first defendant, he visited the Registrar Office. Even then, he failed to
perform his part of the contract. Even thereafter, at the request of the first
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defendant, the plaintiff waited for one year and only thereafter filed the
present suit. Though the first defendant stated about his friends and on
receipt of some amount, he signed the blank papers, the first defendant
did not take any action against them and failed to perform his part of the
contract as agreed by him. Therefore, the court below rightly decreed the
suit and as directed by the court below, the plaintiff deposited the balance
sale consideration to the credit of the suit.
10. Heard, Mr.K.Thilageswaran, the learned counsel for the
appellants, and Mr.T.Murugamanickam, Senior Counsel appearing for the
respondent.
11. The plaintiff filed suit for specific performance on the basis of
agreement for sale dated 25.10.2010, which was entered between the
plaintiff and the first defendant and thereby agreed to sell the suit
property for the total sale consideration of Rs.13,75,000/-, in which a
sum of Rs.1,00,000/- was received by the first defendant and time fixed
for performing their part of the contract is three months. According to the
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plaintiff, thereafter on 02.12.2010 and 24.12.2010, the first defendant
received further sum of Rs.1,00,000/- and Rs.2,50,000/- respectively and
made an endorsement on the backside of the agreement for sale and also
extended time for payment of sale consideration and execution of the sale
deed till 30.08.2011. The agreement for sale was marked as Ex.A1 and
the endorsement made by the first defendant was marked as Ex.A2 The
plaintiff caused notice on 25.08.2011, thereby called upon the first
defendant to come to the Registrar Office and receive the balance sale
consideration and execute the sale deed. On perusal of the notice revealed
that the time was given only for four days i.e. on 29.08.2011, the first
defendant was called upon to come to the Registrar Office. It was
received only on 29.08.2011 by the first defendant. Immediately on
02.09.2011, the first defendant issued reply notice which was marked as
Ex.A6 and categorically denied the allegation made in the legal notice and
specifically stated that the plaintiff is a stranger to the defendants and
they never intended to sell the suit property and never executed any
agreement for sale in favour of the plaintiff. Even then, the plaintiff did
not prefer the suit immediately and the present suit was filed only on
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17.08.2012 with the delay of nearly one year.
12. The first defendant executed settlement deed in respect of the
suit property in favour of his wife, i.e. the second defendant by the
registered settlement deed dated 22.06.2011 itself. In fact, the plaintiff
came to knowledge about the execution of the settlement deed as early as
on 15.07.2011 and he applied certified copy of the settlement deed on the
very same day. The certified copy of the settlement deed was furnished to
the plaintiff on the same day i.e. on 15.07.2011. The suit notice was
caused by the plaintiff on 25.08.2011. On perusal of the notice issued by
the plaintiff, nothing whispered about the settlement deed which was
executed by the first defendant in favour of the second defendant. It
shows that the plaintiff was set up by other persons and filed the
impugned suit for specific performance. In order to substantiate the
fabrication of agreement, the plaintiff stated that the agreement for sale
which was executed at Edayapatti village by the first defendant on
25.10.2010. Whereas, the plaintiff deposed that the agreement was
executed at Vazhapadi. It was drafted by one, Kumar who is an advocate.
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Specifically, suggestion was put to the plaintiff about the place of
execution of the agreement for sale. He categorically denied the execution
of agreement for sale at Edayapatti village. PW1 did not even know the
schedule of the properties mentioned in the agreement for sale. He
deposed that the suit properties comprised in survey No.350/1, 350/3 and
349/1A. Whereas the agreement for sale consisted only two items of the
property comprised in survey No.350/1 and 350/3.
13. PW1 further deposed that on 13.08.2012 at about 11.00 a.m.,
the defendants along with other rowdy elements were trespassed into the
suit property and the second defendant claimed that the suit property
belongs to her by way of settlement deed executed by the first defendant.
Immediately, he verified with the Sub Registrar Office and applied for
certified copy which was marked as Ex.A8. Whereas Ex.A8 revealed that
it was applied by the plaintiff on 15.07.2011 itself and the certified copy
was furnished to him on 15.07.2011 itself. That apart, the plaintiff did not
prefer any complaint before the Land Grabbing Cell or before the
jurisdictional police for the occurrence took place on 13.08.2012. On
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perusal of Ex.A3 legal notice also revealed that no whisper about the
occurrence which was allegedly took place on 13.08.2012. In fact, the
defendants lodged complaint after receipt of the notice from the plaintiff
on 02.09.2011 which was marked as Ex.B7. On receipt of the same, the
Land Grabbing Cell conducted enquiry after issuing summons to the
plaintiff and advocate Kumar. PW1 categorically admitted the fact that
they attended enquiry and police officials enquired them. When the
defendants had sent their reply notice, specifically denied the very
execution of sale and also categorically stated that the plaintiff is a
stranger to them and they never had seen the plaintiff before. Even then,
on receipt of the reply notice which was marked as Ex.A6, the plaintiff
failed to send any rejoinder. The relevant portion of the evidence of PW1
reads as follows:
vd;Dila tHf;Fiuapy; ,ilag;gl;oapy; itj;Jfpiua
xg;ge;j gj;jpuj;jpy; ifbahg;gk; bgwg;gl;ljhf TwtJ jtW
vd;why; rhp/ 1140-89 kw;Wk; 1141-89 vd;w Mtzj;jpd;go
gpujpthjpfF
; nkw;go brhj;J brhe;jkhdJ vd;W Twg;gl;Ls;sJ/
mJ gpthrhM 1 kw;Wk; 2 MFk;/ rh;nt vz;fs; 350-1. 350-3.
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AS.No.622 of 2014
349-1V Mfpa K:d;W rh;nt vz;fspy; cs;s brhj;ij ,e;j
xg;ge;jj;jpy; vGjg;gl;Ls;sJ vd;why; rhp/ nkw;go rh;nt bek;guhd
350-1. 350-3 ,uz;L rh;nt bek;gh; jhd; jw;nghJ vdf;F
"hgfk; cs;sJ/ 3tjhf Twpa[ss
; rh;nt vz; vdf;F "hgfk;
,y;iy/ 25/08/2011y; tHf;fwp"h; K:yk; ehd; tHf;F rk;ke;jkhf
xU tHf;fwp"h; mwptpgg; [ mDg;gpndd;/ mjpy; 349-1V brhj;J
gw;wp Fwpgg; pltpy;iy vd;why; vdf;F M';fpyk; gof;f bjhpahJ/
13/08/2012k; njjp fhiy 11 kzpf;F gpujpthjpfSld;
kw;Wk; 4.5 Ml;fs; rl;ltpnuhjkhf mj;JkPwp EiHe;jhh;fs;/ ,e;j
rk;gtk; Rkhh; 1 kzp neuk; ele;jJ/ rk;gtj;jpd; nghJ 2k;
gpujpthjp jhth brhj;J jdf;F chpikahdJ vd;Wk; jdJ
fztuhd 1k; gpujpthjp jdf;F jhd brl;oy;bkz;l; K:yk;
vGjpbfhLj;jjhf Twpajhy; rhhpgjpthsh; mYtyfj;jpw;F brd;W
,J rk;kg;ejkhf tprhhpjn; jd;/ rk;gtk; ele;j kWehns brd;W
rhh;gjpthsh; mYtyfk; brd;W tprhhpj;njd;/ mg;nghJjhd;
jhdbrl;oy;bkz;l; 2k; gpujpthjp bgahpy; ,Ug;gJk; vd;id
Vkhw;wg;gl;lJk; bjhpeJ
; bfhz;nld;/ me;j efy;jhd; vf;!g; pl; V8
MFk; vd;why; rhpjhd;/ kD jhf;fy; bra;j ehs; 15/07/2011 kw;Wk;
efy; jahuhd ehs; tH';fpa ehs; 15/07/2011 vd;W
Fwpgg; plg;gl;Ls;sJ/ vdf;F bjhpahJ/ efy; vdJ nghpy;jhd;
jhf;fy; bra;ag;gl;lJ vd;why; rhp/ 22/06/2011k; njjp 1k; gpujpthjp
jhth brhj;J Fwpj;J 2k; gpujpthjp nghpy; jhd brl;oy;bkz;l;
vGjpbfhLj;Js;shh; vd;why; rhp/ 23 ehl;fs; fHpjJ
; nkhro
bra;jij bjhpeJ
; 1k; gpujpthjp kPJ g[fhnuh. mwptpgn; gh
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AS.No.622 of 2014
bfhLf;ftpy;iy vd;why; ePjpkd;wj;jpy;jhd; gpuhJ jhf;fy;
bra;Js;nsd;/ tHf;fwp"h; mwptpg;ig nkw;go Mtzk; bgw;w 40
ehl;fs; fHpjJ
; 25/08/2011k; njjpjhd; mDg;gpa[sn; sd;/ trhM3
Mtzj;jpy; 1k; gpujpthjp jd;id Vkhw;wg;gl;lij gw;wp
Fwpgg; pltpy;iy/
tHf;fwp"h; mwptpgg; [ bfhLj;j gpwF 1k; gpujpthjpbfhLj;j
g[fhhpdn; ghpy; nryk; epy mgfhpgg; [ gphptpy; vd;ida[k; Fkhiua[k;
Tg;gpl;L tprhhpj;jhh;fs; vd;why; vd;id kl;Lk; Tg;gpl;L
tprhhpjj; hh;fs;/
ehd; mDg;gpa tHf;fwp"h; mwptpgg; f[ F
; 1k; gpujpthjp
vd;di ahh; vd;nw bjhpahJ vd;W Twp gjpy; mwptpgg; [
mDg;gpajw;F kW gjpy; mwptpgg; [ vGJk; ehd; mDg;gtpy;iy/
nkw;go gjpy; mwptpgg; py; 1k; gpujpthjp thrhM1 I ehd;
ghh;j;jjpy;iy/ mt;thWfpiua xg;ge;j gj;jpuk; ,Ue;jhy; mjd;
efiy 3 ehl;fSf;Fs; mDg;gp itf;Fk;go nfhhpapUe;jhh; vd;gJ
gw;wp bjhpahJ/
14. The above contradictions between the deposition and the
material produced by the plaintiff clearly shows that the plaintiff was set
up by one, Kumar and filed the present false and frivolous suit for
specific performance. On receipt of legal notice and after came to the
knowledge about the alleged agreement for sale, the first defendant
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lodged complaint on 02.09.2011 and also on the same day, wrote a letter
to one P.G.Venkatraman and called upon him to return all the blank
signed stamp papers, cheques and other documents. On perusal of the
said letter, revealed that one, P.T.Kumar on payment of Rs.1,00,000/-
received signatures from the first defendant in blank stamp papers.
Therefore, the said P.G.Venkatraman advised the first defendant to
execute settlement deed in favour of his wife i.e. the second defendant
herein. Further, when the first defendant was under influence of alcohol,
he also received signatures and executed power of attorney in his favour.
Therefore, it shows that the first defendant never executed any agreement
for sale in favour of the plaintiff. In fact, subsequently on 26.08.2011, the
general power of attorney was cancelled by the first defendant which was
marked as Ex.B3. Even then, the court below erroneously stated that the
first defendant received Rs.1,00,000/- from P.T.Kumar and signed in the
documents. Further he has received a sum of Rs.2,00,000/- from
P.T.Kumar and signed other documents. But the first defendant did not
come forward before the trial court with true version for what purpose he
has obtained amount from the said PT.Kumar.
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15. The said PT.Kumar is an advocate who drafted the agreement
for sale as such, the court below concluded that the amount which was
paid by the said P.T.Kumar, as if paid by the plaintiff. Therefore, the
plaintiff approached the court below for specific performance with
fabricated documents and he failed to prove that he has paid advance
amount to the tune of Rs.3,50,000/- and the first defendant executed
agreement for sale.
16. Insofar as readiness and willingness is concerned, the
agreement for sale dated 25.10.2010 and time fixed for performing their
respective part of the contract within a period of three months. On receipt
of subsequent payments, time was extended till 30.08.2011. The plaintiff
caused notice on 25.08.2011, called upon the first defendant to come to
the Registrar Office and collect balance sale consideration and execute the
sale deed. Even on that day, i.e. 29.08.2011, whether the plaintiff was
ready with money and sale deed are not proved by the plaintiff. There is
no iota of evidence to show that the plaintiff was ready on that day with
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balance sale consideration and sale deed to be executed by the first
defendant. Though the plaintiff had knowledge about the settlement deed
executed by the first defendant in favour of the second defendant, which
was marked as Ex.A8, the plaintiff had knowledge about the same on
15.07.2011 itself and he failed to state anything about the settlement deed
in his notice dated 25.08.2011. Even after the notice dated 25.08.2011
and on receipt of the reply notice dated 02.09.2011, the plaintiff filed suit
only on 17.08.2012. Even till filing of the suit, there is no evidence to
show that the plaintiff was ready with balance sale consideration to
perform his part of the contract. He also did not deposit the balance sale
consideration before the trial court at the time of filing of the suit. It
shows that the plaintiff was never ready to perform his part of the
contract as agreed by him in the alleged agreement for sale.
17. The plaintiff also prayed for declaration of the settlement deed
dated 22.06.2011 as null and void. Though the alleged agreement for sale
dated 25.10.2010, the plaintiff caused legal notice on 25.08.2011. Before
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receipt of legal notice, the first defendant was not aware of the agreement
for sale dated 25.10.2010. Therefore, he executed settlement deed on
22.06.2011 in favour of his wife i.e. the second defendant. It is also
proved from the letter written by him to one, Venkatraman which was
marked as Ex.A9. The first defendant executed the settlement deed for
the reason that one, P.T.Kumar obtained signatures in the blank stamp
papers and as such in order to safeguard the property, on the advise of the
said Venkatraman, he executed settlement deed on 22.06.2011. That
apart, the plaintiff had knowledge about the settlement deed dated
22.06.2011 as early as on 15.07.2011 itself. Even then, he did not even
whisper about the settlement deed in his notice, Ex.A3. Therefore, there is
nothing wrong on the part of the first defendant by executing the
settlement deed in favour of his wife. It revealed that the plaintiff is
stranger to the first defendant and the first defendant never executed any
agreement for sale in favour of the plaintiff. Therefore, the settlement
deed dated 22.06.2011, Ex.A8 is valid in the eye of law.
18. In fine, the appeal suit is allowed, and the suit in OS.No.148 of
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2012 on the file of the learned II Additional District Judge of Salem is
dismissed and the decree and judgment passed by the learned II
Additional District Judge of Salem in OS.No.148 of 2012 dated
10.01.2014 is set aside. There shall be an order as to costs in the present
appeal suit. Consequently, the connected miscellaneous petition is closed.
02.07.2021
Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order
lok
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AS.No.622 of 2014
G.K.ILANTHIRAIYAN, J.
lok
To
The II Additional District Judge
of Salem
AS.No.622 of 2014
02.07.2021
https://www.mhc.tn.gov.in/judis
