Madras High Court
Murugan Pillai vs Ponnammal on 2 November, 2021
1 S.A.(MD)No.516 OF 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 02.11.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.516 of 2010
1. Murugan Pillai
2. Muthu Pillai ... Appellants / Appellants 2 &3 /
Defendants 2 & 3
Vs.
1. Ponnammal ... Respondent / Respondent /
Plaintiff
2. Veerayyan Chettiar (Died) ... Respondent / 1st Appellant /
1st Defendant
3. Saraswarthi Achi
4. Palaniappan
5. Govindarajan
6. Tamilselvi
7. Indiragandhi
8. Padmavathi
9. Mallika ... Respondents
(R-3 to R-9 are brought on record as LRs of the
deceased R-2 as per order dated 03.12.2018
in M.P.(MD)No.3 of 2015)
Prayer: Second appeal filed under Section 100 of
C.P.C., against the decree and judgment passed in A.S.No.25
of 2008 on the file of the Sub Court, Pattukkottai, dated
30.11.2009 confirming the decree and judgment passed in
https://www.mhc.tn.gov.in/judis
1/14
2 S.A.(MD)No.516 OF 2010
O.S.No.29 of 2004 on the file of the District Munsif cum
Judicial Magistrate Court, Orathanadu, dated 25.09.2008.
For Appellants : Mr.S.Parthasarathy,
for Mr.D.Venkatesh.
For R-1 : Mr.P.Ganapathi Subramanian
For R-2 : Mr.M.P.Senthil
***
JUDGMENT
Defendants 2 and 3 in O.S.No.29 of 2004 on the file of
the District Munsif cum Judicial Magistrate, Orathanadu, are
the appellants in this second appeal.
2. The suit was filed by the first respondent herein,
namely, Ponnammal for the relief of specific performance. The
case of the plaintiff was that the suit property belonged to
Veerayyan Chettiar and that he entered into a sale agreement
dated 28.08.1987 with her. The sale consideration was fixed at
Rs.12,750/-. The time for concluding the contract was six
months. However, it was claimed by Ponnammal that she had
taken possession of the suit property in the year 1987 itself,
https://www.mhc.tn.gov.in/judis
since the consideration was almost paid and only some of the
part was left unpaid. For certain reasons, the sale deed could
not be registered and Veerayyan Chettiar / the first defendant
entered into a fresh sale agreement dated 02.05.2003. Since
Veerayyan Chettiar was still delaying the execution of the sale
deed, Ponnammal caused to issue notice (Ex.A.3). In response
thereto, Veerayyan issued reply dated 22.04.2004. It
transpired that he had already sold the suit property in favour
of the appellants on 27.02.2004 itself. Therefore, the present
suit came to be laid and and the appellants were also
impleaded as defendants. The defendants filed written
statement controverting the plaint averments. The execution
of the sale agreement dated 02.05.2003 was questioned.
Based on the divergent pleadings, the trial Court framed the
necessary issues. The plaintiff examined herself as P.W.1 and
two of the attestors of the sale agreement dated 02.05.2003
were examined as P.W.2 and P.W.3. Ex.A.1 to Ex.A.11 were
marked. Defendants examined themselves as D.W.1 to D.W.3
and examined three other witnesses. Ex.B.1 to Ex.B.11 were
marked on their side. An Advocate Commissioner was
appointed and his report was marked as Ex.C.1 and Ex.C.2.
https://www.mhc.tn.gov.in/judis
3. After a consideration of the evidence on record, by
judgment and decree dated 25.09.2008, the trial Court
decreed the suit as prayed for. Aggrieved by the same, the
defendants filed A.S.No.29 of 2004 before the Sub Court,
Pattukottai. The first appellate Court by judgment and decree
dated 30.11.2009 dismissed the appeal. Challenging the same,
the purchasers alone filed this second appeal. The original
vendor was shown as the second respondent. During the
pendency of the second appeal, the vendor passed away and
his legal heirs were brought on record.
4. This second appeal was admitted on 27.10.2021 on
the following substantial questions of law:-
“ (i) Whether the finding of the Courts
below that Ex.A.2 has been proved by invoking
Section 57 of the Indian Evidence Act is
perverse?
(ii) Whether granting the relief of
specific performance is contrary to the settled
principles of law? ”
https://www.mhc.tn.gov.in/judis
5. Heard the learned counsel appearing for the
appellants as well as the learned counsel appearing for the
contesting respondent as well as the learned counsel for the
legal hears of the original D.W.1.
6. The primary contention of the learned counsel
appearing for the appellants is that the original sale
agreement which was marked as Ex.A.1 is of the year 1987.
The sale consideration itself was only for a sum of Rs.12,750/-.
Even according to the plaintiff, a sum of Rs.11,750/- was paid.
There was simply no reason for not executing the sale
consideration then and there. According to the appellants, the
first defendant Veerayyan Chettiar and the plaintiff had a
financial dealing and Ex.A.1 was executed for security
purpose. In fact, a reading of the contents of Ex.A.1 would
show that the same could have been placed for registration
before the Registrar. It was only after 16 years, once again the
plaintiff wanted one more sale agreement from the first
defendant. It was only on 14.12.2004 Ponnammal applied for
Adangal. The overall conduct of the plaintiff is such that that
https://www.mhc.tn.gov.in/judis
she is not entitled to the relief of the specific performance.
7. The learned counsel would point out that Ex.A.2
had been notarised. But the Notary was not examined. The
Courts below chose to invoke Section 85 of the Indian
Evidence Act and come to the conclusion that the authenticity
of Ex.A.2 had been established. When once the defendants
contested the genuineness of Ex.A.2, the burden lay on the
plaintiff to prove that it was executed only by Verrayan. The
plaintiff did not take any step to obtain expert opinion. He
prayed that the substantial questions of law may be answered
in favour of the appellants.
8. Per contra, the learned counsel appearing for the
plaintiff submitted that the impugned judgments do not call
for any interference.
9. I carefully considered the rival contentions and
went through the entire evidence on record.
10. Section 85 of the Indian Evidence Act is as
follows:-
https://www.mhc.tn.gov.in/judis
“85. Presumption as to powers-of-
attorney.
The Court shall presume that every
document purporting to be a power-of-attorney,
and to have been executed before, and
authenticated by, a Notary Public, or any Court,
Judge, Magistrate, Indian Consul or Vice-Consul,
or representative of the Central Government,
was so executed and authenticated. “
From a reading of the provision, one can come to the
conclusion that the presumption contemplated under Section
85 of the Act will apply to power of attorney. It cannot be
applied to a sale agreement. However, the Courts below
invoked Section 85 of the Indian Evidence Act and came to the
conclusion that Ex.A.2 should be presumed to have been
proved in view of its notarisation. In fact, Courts below refer
to Section 57 which talks of facts of which the Court can take
judicial notice.
11. Section 57 of the Indian Evidence Act is as
https://www.mhc.tn.gov.in/judis
follows:-
“ 57. Facts of which Court must take judicial
notice. ––
The Court shall take judicial notice of the following facts: ––
(1) All laws in force in the territory of India;
(2) All public Acts passed or hereafter to be passed by
Parliament of the United Kingdom, and all local and personal
Acts directed by Parliament of the United Kingdom to be
judicially noticed;
(3) Articles of War for the Indian Army Navy or Air
Force;
(4) The course of proceeding of Parliament of the
United Kingdom, of the Constituent Assembly of India, of
Parliament and of the legislatures established under any laws
for the time being in force in a Province or in the States;
(5) The accession and the sign manual of the
Sovereign for the time being of the United Kingdom of Great
Britain and Ireland;
(6) All seals of which English Courts take judicial
notice: the seals of all the Courts in India and of all Courts out
of India established by the authority of the Central
https://www.mhc.tn.gov.in/judis
Government or the Crown Representative; the seals of Courts
of Admiralty and Maritime Jurisdiction and of Notaries Public,
and all seals which any person is authorized to use by the
Constitution or an Act of Parliament of the United Kingdom or
an Act or Regulation having the force of law in India;
(7) The accession to office, names, titles, functions,
and signatures of the persons filling for the time being any
public office in any State, if the fact of their appointment to
such office is notified in any Official Gazette;
(8) The existence, title and national flag of every State
or Sovereign recognized by the Government of India;
(9) The divisions of time, the geographical divisions of
the world, and public festivals, fasts and holidays notified in
the Official Gazette;
(10) The territories under the dominion of the
Government of India;
(11) The commencement, continuance and
termination of hostilities between the Government of India
and any other State or body of persons;
(12) The names of the members and officers of the
Court, and of their deputies and subordinate offices and
https://www.mhc.tn.gov.in/judis
assistants, and also of all officers acting in execution of its
process, and of all advocates, attorneys, proctors, vakils,
pleaders and other persons authorized by law to appear or act
before it;
(13) The rule of the road on land or at sea.
In all these cases, and also on all matters of public
history, literature, science or art, the Court may resort for its
aid to appropriate books or documents of reference.
If the Court is called upon by any person to take
judicial notice of any fact, it may refuse to do so unless and
until such person produces any such book or document as it
may consider necessary to enable it to do so.”
From a reading of Section 57 as well as Section 85 of the
Evidence Act, I am not able to find any such mandate as
claimed by the Courts below. Therefore, I answer the first
substantial question of law in favour of the appellants.
https://www.mhc.tn.gov.in/judis
12. The next question is whether failure on the part of
the plaintiff to refer Ex.A.2 for forensic opinion is fatal to her
case. The plaintiff examined herself and also one of the
attestors of Ex.A.2. By doing so, the plaintiff had discharged
the initial onus cast on her. Even according to the defendants,
Ex.A.2 was not executed by the first defendant. But nothing
stopped them from filing an I.A. for referring the document for
forensic opinion, since the onus had clearly shifted to them.
They have not done so. Therefore, there is no merit in the
contention of the appellants' counsel that the plaintiff had not
discharged the burden cast on her. More than anything else,
the conduct of the original defendant will have to be taken
note of. As rightly pointed out by the plaintiff, not only the
conduct of the plaintiff, but also the conduct of the defendant
has to be taken note of by the Courts below. The plaintiff had
marked Ex.A.10 and Ex.A.11. Ex.A.10 is also dated
28.08.1987, the same date as that of Ex.A.10 is the sale
agreement executed in favour of Chellammal. Pursuant to the
said agreement, sale deed was executed in her favour by
Veerayyan as late on 05.02.2007 and it was marked as
Ex.A.11. Veerayyan proceeded to deny his signature in
https://www.mhc.tn.gov.in/judis
Ex.A.10. From this one can come to the conclusion that
Veerayyan has not been bona fide in his conduct. Therefore,
though I fault the reasons set out by the Courts below, I
independently come to the conclusion that the plaintiff proved
Ex.A.2. The suit was filed in time. The appellants have traced
the suit property under Ex.B.9. Therefore, the Courts below
have declined to grant relief to the appellants. The concurrent
findings of the Courts below do not warrant any interference.
13. This second appeal is dismissed. At this stage, the
plaintiff had fairly stated that the plaintiff would deposit a sum
of Rs.4,00,000/- to the credit of O.S.No.29 of 2004 on the file
of the District Munsif cum Judicial Magistrate, Orathanadu,
within a period of four weeks from the date of receipt of a
copy of this order. The appellants will be entitled to withdraw
Rs.3,00,000/-. The legal heirs of Veerayyan will be entitled to
the remaining amount of Rs.1,00,000/-. No costs.
02.11.2021
Index : Yes / No
Internet : Yes/ No
PMU
https://www.mhc.tn.gov.in/judis
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 Sub Judge,
Pattukkottai.
2.The District Munsif cum Judicial Magistrate,
Orathanadu.
3. The Record Keeper, V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
G.R.SWAMINATHAN,J.
PMU
S.A.(MD)No.516 of 2010
02.11.2021
https://www.mhc.tn.gov.in/judis
