Madras High Court
V.Parthipan vs M.Raman on 30 September, 2021
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATE: 30.9.2021.
CORAM
THE HON'BLE MR.JUSTICE A.D.JAGADISH CHANDIRA
S.A.(MD) No.597 of 2021
and
C.M.P.(MD) No.7860 of 2021
V.Parthipan Appellant
vs.
M.Raman Respondent
Second Appeal filed under Section 100 of CPC against the
Judgment and Decree dated 2.9.2020 passed in A.S.No.66 of 2019 on
the file of the I Additional District Judge, Madurai confirming the
Judgment and decree dated 16.8.2018 passed in O.S.No.910 of 2014
on the file of the III Additional Subordinate Judge, Camp @
Usilampatti.
For Appellant : Mr.S.J.Chakravarthy
JUDGMENT
The concurrent finding of the courts below in declining to grant
the relief of specific performance is under challenge in this Second
Appeal at the instance of the plaintiff.
2. The plaintiff had filed the suit for specific performance in
respect of the suit property claiming that the defendant was in
separate possession and enjoyment of the suit property and he had
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entered into a sale agreement dated 27.9.2012 with the plaintiff
agreeing for the sale consideration of Rs.2,00,000/- and received an
advance of Rs.1,40,000/- and it was further agreed that the remaining
sale consideration of Rs.60,000/- was to be paid within 2 years from
the date of sale agreement and as agreed, when the plaintiff was
waiting at the Sub Registrar office on 3.4.2014 with the balance sale
consideration, the defendant failed to perform his part of the contract
as promised while the plaintiff was ready and willing to perform his
part of the contract. Hence, it is claimed that the plaintiff had issued a
legal notice on 7.4.2014 and on receipt of a false reply dated
10.6.2014, the plaintiff was constrained to file the suit.
3. The case of the defendant in his written statement and
additional written statement is that the suit property originally
belonged to his father Machakalai and after his death, it was inherited
by the defendant and his brothers Rajendran and Manoharan and
misusing the defendant's addiction to liquor, the plaintiff had created
the sale agreement when the defendant was in intoxication, with an
intention to grab the share of the defendant in the joint family and the
joint patta stands in the name of the defendant and his brothers and
the wife of the deceased brother Rajendran and his daughter
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Tamilselvi and Muthukumar. It is the case of the defendant that the
suit property is a joint family property and the plaintiff is not entitled
to the relief sought for.
4. On the above pleadings, the Trial Court had framed the
following issues:-
(i) Whether the plaintiff is entitled to the relief of specific performance?
(ii) Whether the plaintiff is entitled to the alternate relief of refund of
advance amount with interest?
(iii) To what other relief, the plaintiff is entitled?
5. During the trial, the plaintiff examined himself as PW1 apart
from examining one Paulraj as PW2 and marked four documents while
the defendant examined himself as DW1 and has not chosen to mark
any document.
6. On analysis of the oral and documentary evidence, the Trial
Court had dismissed the suit holding that the plaintiff is not entitled to
the relief of specific performance, however, granted the alternate relief
of refund of advance amount with interest at 9% per annum from the
date of sale agreement till the date of filing of the suit and at 6% per
annum from thereafter till the date of realisation.
7. Aggrieved against that judgment and decree, the plaintiff had
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filed the first appeal which confirmed the findings of the Trial Court and
dismissed the Appeal. Questioning the correctness of such concurrent
findings of the courts below, the plaintiff has filed the present Second
Appeal.
8. Learned counsel for the appellant would submit that the
courts below have erred in dismissing the suit insofar as the claim of
specific performance is concerned on the ground that the suit property
is a joint family property whereas the defendant has got atleast 1/3
share in the suit property and the courts below have erred in totally
rejecting the claim of specific performance.
9. The issue involved in the present case revolves around the
truth, validity and genuineness of the Agreement of Sale, Ex.A1. The
case of the plaintiff is that he had entered into the agreement of sale
on paying a sum of Rs.1,40,000/- towards advance sale consideration
in respect of the suit property and he had to pay the remaining
amount of Rs.60,000/- towards the balance sale consideration within
two years prescribed in the said agreement of sale and accordingly, he
had approached, but, since he could not succeed in getting the sale
deed registered in his name, he had filed the suit seeking the relief of
specific performance or in the alternate for refund of the advance
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amount paid by him with interest.
10. The case of the defendant is two fold, one is of denial of
execution of such agreement of sale and his case is that the plaintiff
had utilised the intoxication of the defendant to create such an
agreement of sale and the other being the suit property is a joint
family in which his brothers and their legal heirs have got share and
interest and hence, the agreement of sale, somehow created by the
plaintiff cannot confer any right upon the plaintiff to claim the relief of
specific performance. Ultimately, it is the case of the defendant that
no advance amount was paid by the plaintiff towards the alleged
agreement of sale. To strengthen the case of the defendant that the
suit property is a joint family property, it appears that joint patta
stands in the name of other family members too. Therefore, if at all,
the agreement of sale alleged to have been executed by the first
defendant is accepted, the plaintiff cannot have his claim over the joint
family property by enforcing such agreement of sale and it loses its
value.
11. Though PW2, a witness to Ex.A1 agreement of sale, speaks
about the consideration being passed on when Ex.A1 was entered into
between the plaintiff and the defendant, the courts below, finding that
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it is a joint family property and that Ex.A1 will not be binding on the
other owners of the property, had rejected the claim of the plaintiff.
However, the courts below have granted the alternate relief of refund
of advance amount paid by the plaintiff to the defendant. The court
below had held that the defendant cannot take shelter of having
received the amounts under intoxication. This court find that the
judgments of both the courts below do not call for any interference.
12. In the opinion of this court, there is no error or infirmity in
the findings of both the courts below and the Appellant has not made
any substantial question of law to admit this Second Appeal. The
Hon'ble Apex Court in Kirpa Ram (D) Tr.Lrs. vs Surender
Deo Gaur (2020 Scc OnLine SC 935) has categorically held as
under:-
"23. Sub-section (1) of Section 100 of the Code
contemplates that an appeal shall lie to the High
Court if it is satisfied that the case involves a
substantial question of law. The substantial question
of law is required to be precisely stated in the
memorandum of appeal. If the High Court is
satisfied that such substantial question of law is
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involved, it is required to formulate that question.
The appeal has to be heard on the question so
formulated. However, the Court has the power to
hear appeal on any other substantial question of law
on satisfaction of the conditions laid down in the
proviso of Section 100 of the Code. Therefore, if the
substantial question of law framed by the appellants
are found to be arising in the case, only then the
High Court is required to formulate the same for
consideration. If no such question arises, it is not
necessary for the High Court to frame any
substantial question of law. The formulation of
substantial question of law or re- formulation of the
same in terms of the proviso arises only if there are
some questions of law and not in the absence of any
substantial question of law. The High Court is not
obliged to frame substantial question of law, in
case, it finds no error in the findings recorded by
the First Appellate Court."
13. In view of the above, the Second Appeal fails and is,
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accordingly, dismissed without being admitted. No costs. The
connected Miscellaneous Petition is closed.
30.9.2021.
Index: Yes/No.
Internet: Yes/No.
ssk.
Note: In view of the present lock down owing to
COVID 19 pandemic, a web copy of the order
may be utilised 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. I Additional District Judge,
Madurai.
2. III Additional Subordinate Judge,
Camp @ Usilampatti.
https://www.mhc.tn.gov.in/judis/
A.D.JAGADISH CHANDIRA, J.
Ssk.
S.A.(MD) No.597 of 2021 and
C.M.P.(MD) No.7860 of 2021
30.9.2021.
https://www.mhc.tn.gov.in/judis/
