Madras High Court
Jaya vs Valliammal on 28 July, 2021
S.A(MD)No.125 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 24.02.2022
DELIVERED ON : 28.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE R.VIJAYAKUMAR
S.A(MD)No.125 of 2022
and
C.M.P(MD)No.1550 of 2022
Jaya ... Appellant/
Appellant/
Plaintiff
Vs
Valliammal ... Respondent/
Respondent/
Defendant
PRAYER: Second Appeal is filed under Section 100 of the Civil Procedure
Code, against the judgment and decree, dated 28.07.2021 passed in A.S.No.
77 of 2019 on the file of the Principal Sub Judge, Tirunelveli, confirming
the judgment and decree, dated 27.04.2019 passed in O.S.No.143 of 2015
on the file of the Principal District Munsif Court, Tirunelveli.
For Appellant : Mr.T.Selvan
For Respondent : No appearance
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S.A(MD)No.125 of 2022
JUDGMENT
The plaintiff is the appellant herein.
2. The plaintiff filed O.S.No.143 of 2015, before the Principal District
Munsif Court, Tiurnelveli, for specific performance. The suit was dismissed
by the trial Court. She filed A.S.No.77 of 2019 before the Principal Sub
Court, Tirunelveli. The learned Subordinate Judge partly allowed the appeal,
granting an alternative relief of return of advance amount, but, confirmed
the judgment and decree with regard to refusal for specific performance. As
against the same, the plaintiff has filed the above Second Appeal.
3. The plaintiff had contended that the suit schedule properties
originally belonged to the defendant and she entered into a registered sale
agreement with the plaintiff on 27.02.2014. The total sale consideration was
fixed at Rs.1,00,000/-. An advance amount of Rs.80,000/- was paid on the
date of the sale agreement. For payment of balance sale consideration of
Rs.20,000/-, one year time was fixed. Since the defendant had not come
forward to execute the sale deed, the plaintiff sent a legal notice under
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S.A(MD)No.125 of 2022
Exhibit A2 on 21.02.2015. Thereafter, the present suit for specific
performance was filed.
4. The defendant filed a written statement admitting that she is the
owner of the suit schedule properties. The defendant further contended that
she borrowed a sum of Rs.1,50,000/- from the plaintiff's husband. The
defendant was regularly paying interest at the rate of Rs.2,000/- per month.
As a security for the said loan, she had given the original title deed to the
custody of the plaintiff. But the plaintiff started insisting that the defendant
should execute a registered mortgage deed with regard to the said property.
The defendant's husband passed away. Even, thereafter, the defendant
continued to pay the interest. After the death of the husband, the plaintiff
insisted the defendant to execute a registered mortgage deed as a security
for the loan amount. Under the impression that she is executing a mortgage
deed, the defendant has executed the suit sale agreement in favour of the
plaintiff.
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S.A(MD)No.125 of 2022
5. The defendant further contended that even as per the guideline
value, the suit schedule properties are more than Rs.6,00,000/- and the
defendant would have never intended to alienate the said properties for a
sum of Rs.1,00,000/-. Even after receipt of legal notice without
understanding the contents, the defendant approached the plaintiff and
requested the defendant that when she is continuing to pay the interest why
should a legal notice be issued to her. At that point of time, the plaintiff had
said that she need not be bothered about the legal notice and she can
continue to pay the interest. The defendant further contended that she was
misled with regard to the character of the document which she had executed
on 27.02.2014. She was under the impression that she is executing a
registered mortgage deed. She further contended that she came to know
about the fraud played by the plaintiff, only when she met her Counsel
along with the summons from the Court. Hence, she prayed for dismissal of
the suit.
6. The trial Court arrived at a finding that the defendant has admitted
the execution of Exhibit A1 sale agreement. But, she has only contended
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S.A(MD)No.125 of 2022
that she has executed the said agreement under the impression that she is
executing a mortgage deed in favour of the plaintiff and she never intended
to enter into a sale agreement with the plaintiff. The trial Court arrived at a
finding that there is no necessity for the plaintiff to seek one year time to
pay the balance of Rs.20,000/-, when he had already paid Rs.80,000/-. The
trial Court also found that the period of one year was fixed only for the
plaintiff to verify the title deeds and the encumbrances over the suit
schedule property. The trial Court also found that there is no oral or
documentary evidence whatsoever on the side of the plaintiff that he ever
attempted to verify the title deeds and the encumbrances over the suit
schedule properties referred to in the sale agreement. The plaintiff has not
displayed any intention throughout the year to purchase the suit schedule
properties. At the fag end of expiry of one year period, the plaintiff had
issued a notice and filed the suit for specific performance. The trial Court
also found that the plaintiff had sent a notice at the last moment only to
prevent the defendant from putting up any defence. If really, the plaintiff
had intention to purchase the property, he would given ample time to
plaintiff to respond to the notice and he would have paid the balance sale
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S.A(MD)No.125 of 2022
consideration. There is no oral or documentary evidence to the effect that
the plaintiff verified the title of the defendant during this period. But, the
said Clause in suit agreement was utilized by the plaintiff only to blame the
defendant. Hence, the trial Court arrived at a finding that the plaintiff was
not ready and willing to perform the part of the contract. The pleadings in
the plaint regarding readiness and willingness are not supported by any oral
or documentary evidence. The trial Court also considered the extent of
property (i.e) extent and value of the property that is sought to be conveyed
through Exhibit A1 sale agreement. An extent of 62 cents of Nanja land and
seven housing plots having an extent of 21.21 cents are subject matter of
Exhibit A1 sale agreement for a meagre sale consideration of Rs.1,00,000/-.
The defendant has produced Exhibits X1 and X2 to indicate the guideline
value of the suit schedule property on the date of the sale consideration
agreement. As per the said guideline value, the total value of the property is
around Rs.4,00,000/-. Normally, the market value of the properties are more
than the guideline value and hence, the contention of the defendant that she
intended to execute only a mortgage deed is believable. In view of the above
said findings, the trial Court exercised its discretion and refused to grant a
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S.A(MD)No.125 of 2022
decree for specific performance. The plaintiff filed an appeal. The learned
Subordinate Judge after independent consideration of oral and documentary
evidence, arrived at a finding that when the title deeds are very clear in
favour of the defendant, it is not known why a sum of Rs.20,000/- was
withheld by the plaintiff and a period of one year was fixed for verification
of the title deeds.
7. The First Appellate Court also arrived at a finding that the plaintiff
has not established his readiness and willingness to purchase the suit
schedule properties. The First Appellate Court also relied upon Exhibits X1
and X2 guideline registers to arrive at a finding, that the defendant has
executed Exhibit A1 sale agreement only under the impression that she is
executing a mortgage deed. The First Appellate Court also arrived at a
finding that the suit sale agreement has been executed only as a security for
the loan amount and not with an intention to enter into a sale agreement.
Based upon the said finding, the trial Court confirmed the judgment and
decree of the trial Court. The First Appellate Court confirmed the judgment
and decree of the trial Court. As against the concurrent findings, the plaintiff
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S.A(MD)No.125 of 2022
has filed the above Second Appeal.
8. The learned Counsel for the appellant had contended that Exhibit
A1 sale agreement is a registered document. The plaintiff has issued legal
notice within one year period prescribed under Exhibit A1 sale agreement.
The defendant has not disputed the execution of Exhibit A1 sale agreement.
The defendant had only contended that she was under the impression that
she is executing a mortgage deed as a security for the loan amount. Hence,
the learned Counsel for the appellant contended that the entire burden is
only upon the defendant to establish the fact that the suit agreement was
executed only as a security for the loan amount.
9. The learned Counsel for the appellant further contended that the
Courts below have erroneously shifted the burden upon the plaintiff to
establish the fact that Exhibit A1 sale agreement was executed with an
intention to alienate the suit schedule properties. The learned Counsel for
the appellant further contended that the guideline value of the suit schedule
properties under Exhibits X1 and X2 they do not reflect the correct value of
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S.A(MD)No.125 of 2022
the suit schedule properties. That apart, the said guideline value cannot be
relied upon by the Court to non-suit the plaintiff. He further contended that
some times the market value is lesser than the guideline value. When the
plaintiff has established his readiness and willingness to perform his part of
the contract, the Courts below ought not to have exercised their discretion in
favour of the defendant and dismissed the suit. The learned Counsel for the
appellant further contended that just because a sale agreement has been
entered into for a lesser value, that will not affect the validity of Exhibit A1
sale agreement and the defendant is bound to execute a sale deed in favour
of the plaintiff. He further contended that the Courts below have
erroneously relied upon the guideline value and based upon the said
presumption have arrived at a finding that the market value will be more
than the guideline value. The learned Counsel for the appellant further
contended that when the defendant has not questioned the readiness and
willingness of the plaintiff, the First Appellate Court had erroneously gone
into the said question in order to non-suit the plaintiff. Hence, he prayed for
admitting the Second Appeal.
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S.A(MD)No.125 of 2022
10. I have carefully considered the submissions on the learned
Counsel for the appellant.
11. The execution of Exhibit A1 sale agreement by the defendant in
favour of the plaintiff under Exhibit A1 is admitted by both the parties.
However, the defendant contends that there were money transactions
between the defendant and the plaintiff's husband and in order to be a
security for the said transaction, the plaintiff had insisted upon the
defendant to execute a registered document in his favour. The defendant had
executed the said Exhibit A1 document only under the impression that she
was executing a mortgage deed as a security for the loan amount.
12. In the present case, the defendant has contended that there was a
fraudulent representation with regard to the character of the document. The
defendant has chosen to let in evidence by producing Exhibits X1 and X2
guideline registers with regard to the suit schedule property to impress upon
the Court that the guideline value of the property on the date of execution of
the sale agreement was around Rs.4,00,000/-. The plaintiff has not disputed
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S.A(MD)No.125 of 2022
the said guideline value. The Court can take judicial notice of the fact that in
most of the cases, the market value is more than the guideline value.
13. The defendant has contended that she is an illiterate women. After
the death of her husband, the plaintiff had insisted the defendant to execute
a mortgage deed as a security for the loan borrow by her. Even at the time of
borrowal of loan, the defendant has handed over the original title deeds with
the plaintiff. A combined understanding of the fact that the defendant is an
illiterate lady and she had handed over the original documents with the
plaintiff at the time of borrowal of the loan, the Court can come to a
conclusion that the suit sale agreement was executed only under the
impression that it is a mortgage deed.
14. The Hon'ble Supreme Court in a judgment reported in 2006 (5)
SCC Page 353 as held that "where a fraudulent misrepresentation has been
made with regard to the character of a document, the document is void". The
trial Court as well as the appellate Court have arrived at a concurrent
finding that the plaintiff has not proved his case.
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S.A(MD)No.125 of 2022
15. The only reason assigned in Exhibit A1 sale agreement for
postponing the execution of the sale deed for a period of one year is to
verify the title deeds and encumbrances over the suit schedule property.
Neither in the legal notice nor in the plaint, the plaintiff has stated whether
he has verified and got satisfied about the title deeds or not. The said period
of one year seems to be a camouflage the sale agreement.
16. In view of the above said discussion, the Courts below have
arrived at a concurrent finding based on oral and documentary evidence. I
do not find any question of law much less a substantial question of law
warranting interference by this Court under Section 100 of the Civil
Procedure Code. Therefore, the Second Appeal stands dismissed. No costs.
Consequently, connected Miscellaneous Petition is closed.
28.02.2022
Index : Yes / No
Internet : Yes / No
btr
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S.A(MD)No.125 of 2022
Note :
In view of the present lock down owing to COVID-19 pandemic,
a web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the advocate / litigant
concerned.
To
1.The Principal Sub Judge,
Tirunelveli.
2.The Principal District Munsif Court,
Tirunelveli.
3.The Section Officer,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A(MD)No.125 of 2022
R.VIJAYAKUMAR,J.
btr
Judgment made in
S.A(MD)No.125 of 2022
28.02.2022
https://www.mhc.tn.gov.in/judis
