E.Raja @ Loganathan vs V.Boopalan
2022 Latest Caselaw 6919 Mad

                                                                                S.A.No.465 of 2017

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED: 04.04.2022

                                                        CORAM:
                                   THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
                                                 S.A. No.465 of 2017
                                                         and
                                               C.M.P. No.11670 of 2017

                  1.E.Raja @ Loganathan
                  2.Mohan Kumar                                                  ... Appellants

                                                            Vs.

                  1.V.Boopalan
                  2.Ramu
                  3.Minor Dhanalakshmi
                    (Respondents 2 & 3 are given
                    up as unnecessary parties)                                 ... Respondents



                  Prayer: Second Appeal is filed under Section 100 of Civil Procedure Code,

                  1908, against the judgment and the decree dated 28.10.2014 in A.S.No.29 of

                  2014 on the file of the I Additional District Court, Salem, partly reversing the

                  judgment and the decree dated 22.02.2013 in O.S.No.82 of 2009 before the I

                  Additional Sub Court, Salem.



                                    For Appellant           : Mr.T.Sezhian
                                    For Respondent          : Mr.J.Franklin for R1

https://www.mhc.tn.gov.in/judis

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                                                                                      S.A.No.465 of 2017

                                                       JUDGMENT

The defendants 1 and 3 in the suit in O.S.No.82 of 2009 on the

file of the I Additional Sub-Court, Salem are the appellants in the above

Second Appeal. The first respondent in this appeal filed the suit in O.S.

No.82 of 2009 for direction directing the defendants in this suit to execute

the sale deed in favour of the plaintiff and to surrender possession and for

consequential permanent injunction.

2. It is the case of the first respondent / plaintiff in the plaint that

the plaintiff and the defendants have entered into a sale agreement on

13.02.2008 agreeing to sell their suit property in favour of plaintiff for a sum

of Rs.2,50,000/- and the defendants received a sum of Rs.50,000/- as

advance from the first respondent. It is also stated that the defendants have

received an additional sum of Rs.1,80,000/- as advance from the plaintiff

towards sale price. The plaintiff has to pay a sum of Rs.70,000/- towards

balance of sale price. It is contended that the defendants did not come

forward and receive the balance amount from the plaintiff for completion of

sale transaction. After issuance of notice to the defendants, the first

respondent filed the suit.

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S.A.No.465 of 2017

3. The suit was contested by the first defendant on many

grounds stating that the second defendant in the suit had not completed 18

years of age and that he is not competent to contract. It is the case of the first

appellant that since he is addicted to alcohol, he borrowed money from the

plaintiff for drinking purpose. It is contended that the first defendant, on

every occasion, borrowed money from the plaintiff, but did not agree to

execute the sale agreement in respect of the suit property. Therefore, the suit

agreement was described by the first appellant as a fraudulent document

created by the plaintiff for the purpose of this suit. The first appellant also

contended that the second defendant was the minor on the date of agreement

and that defendants 2 and 3 did not sign any agreement. It is stated that the

defendants did not remember any notice being sent by plaintiff before suit.

4. The suit was also contested by defendants 2 and 3 by filing

separate written statement. It is contended by the defendants 2 and 3 that

they have not entered into any agreement of sale and they have not signed in

the agreement of sale as alleged. It is also stated by them that the alleged

agreement signed by the first defendant is not binding on them and that there

is no cause of action for the suit as against defendants 2 and 3.

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S.A.No.465 of 2017

5. The trial Court framed necessary issues. On behalf of the

plaintiff/first respondent, three witnesses were examined as P.W.1 to P.W.3

and Exs.A1 to A6 were marked as exhibits. On behalf of the defendants 1 &

3 were examined as D.W.1 to D.W.3 and Exs.B1 to B4 were marked as

exhibits.

6. The trial Court found that the suit agreement was signed by

the first defendant/first appellant and that the suit agreement is binding on

the defendants 2 to 4 who are the children of first defendant. Considering the

evidence of D.W.1, during the cross examination admitting the signature and

thumb impression of D.W.1, the trial Court held that the agreement was duly

executed by the first defendant and that the sale agreement is binding on all

the defendants and decreed the suit.

7. Aggrieved by the findings of the trial Court, the defendants

have preferred an appeal in A.S. No.29 of 2014. The lower Appellate Court

held that the second defendant is a minor and therefore the sale agreement is

void and not enforceable against second defendant. As regards the fourth

defendant, the lower Appellate Court found that the fourth appellant is a

minor, who was represented by his father, the first appellant in the suit https://www.mhc.tn.gov.in/judis

S.A.No.465 of 2017

agreement. The lower Appellate Court held that the father is not the natural

guardian to represent the minor fourth defendant as she was already married

and her husband should represent her as natural guardian. Therefore, the suit

as against the defendants 2 and 4 was dismissed. Since the agreement is

valid only in respect of one half share of defendants 1 and 3, the lower

Appellate Court held that the respondents are not entitled to the decree for

specific performance in respect of the remaining ½ share of the suit property.

A further direction was also issued by the lower Appellate Court directing the

first appellant to return the excess money. The plaintiff was also directed to

pay a sum of Rs.55,000/- to the third defendant as balance of sale

consideration towards his ¼ share.

8. Aggrieved by the judgment and decree of the lower Appellate

Court in A.S. No.29 of 2014, the defendants 1 and 3 preferred the above

appeal by raising the following substantial questions of law in the

memorandum of grounds of appeal:

“ (i) Whether in law the Courts below were right in holding

that the suit agreement was true when the signatures of the first appellant had been obtained for a different transaction and when the others had not signed it?

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S.A.No.465 of 2017

(ii) Whether in law the Courts below were not wrong in failing to see that fraud vitiates the entire transaction and that there could be no equitable degree in favour of a person who comes to Court with a false case?

(iii) Whether in law the Lower Appellate Court was right in directing the first appellant to return the alleged excess amount when the first respondent had not filed an application which is mandatory under Sec.22(2) of the Specific Relief Act?”

9. From the written statement filed by the first defendant, it is

seen that the first defendant has not denied his signature or thumb

impression in the suit agreement which was marked as Ex.A1. It is seen that

the first defendant/first appellant has signed the sale agreement for himself

and as a guardian of the fourth defendant. It is stated that a sum of

Rs.50,000/- was paid as advance by the plaintiff to the defendants. Ex.A1

sale agreement also reveals that the first appellant has obtained several

amounts as further advances from the plaintiff and put his thumb impression

and signature, in every endorsements in the agreement. From the admission

of D.W.1, the lower Court held that the suit agreement executed by the first

appellant is proved. Since the Lower Appellate Court found that the second

defendant was a minor at that time of sale agreement, held that the https://www.mhc.tn.gov.in/judis

S.A.No.465 of 2017

agreement of sale executed by second defendant is invalid and not

enforceable against him. Similarly the lower Appellate Court found that the

suit for specific performance cannot be maintained against another minor

namely, fourth defendant who was not represented by her husband as natural

guardian.

10. When the judgment of the lower Appellate Court is on the

basis of admitted facts, the learned counsel appearing for the appellants

submitted that the findings of the Courts below regarding the truth and

validity of agreement cannot be sustained in view of specific pleadings of the

first defendant denying the nature of transaction. This Court is unable to find

any legal force in the submission of the learned counsel for the appellants.

The signature of the first defendant in the sale agreement is not in dispute.

Similarly the endorsements found were made by the first defendant. The

appellants have not let in sufficient evidence to prove that the sale agreement

was never intended to be acted upon. It is the specific case that the first

defendant signed the document under the influence of Alcohol. However, the

signature of the first defendant found in the document as Ex.A1 does not

appear to be a signature of a drunkard person who is unable to understand

anything. The signature and thumb impression of the first defendant is found https://www.mhc.tn.gov.in/judis

S.A.No.465 of 2017

in every page of the agreement. The first defendant signed the document

without any shivering or break. The signatures of first defendant exactly

similar. The contention of the first defendant cannot be accepted without

further evidence to corroborate the evidence of D.W.1.

11. The plaintiff has examined three witnesses and all of them

were cross examined. The learned counsel for the appellants is unable to

point out any specific or material contradiction with regard to the nature of

transaction. The Courts below specifically held that the agreement was

signed by the first defendant and it is binding on the appellants. This Court is

unable to see any reason to interfere with the findings of facts by the lower

appellate Court. The learned counsel attempts to rely upon the evidence of

P.W.1 by stating that the plaintiff's witnesses have admitted that other

defendants did not sign. It is seen that P.W.2 has stated that the endorsement

were not signed by the defendants. It is not the case of the plaintiff that

the endorsements were singed and the receipt of further amounts were

acknowledged by all the defendants. The case of first respondent is also that

the first defendant alone had made endorsements while receiving further

amounts. Merely because the first defendant has pleaded that the signatures

were made when he was under the influence of alcohol, it cannot be said that https://www.mhc.tn.gov.in/judis

S.A.No.465 of 2017

he has signed the agreement without knowing the contents. No special

circumstances which prompted the first appellant to sign the agreement along

with his two sons is pleaded. Hence, the lower appellate Court, came to the

conclusion that the suit agreement was executed by the defendants and that

the money was paid to the appellants towards part of sale consideration. The

decree is granted only in respect of half share in the suit property. Therefore,

the relief has been moulded by directing the defendant to return the amount

in excess of his share. There is no illegality in the decision.

12. This Court finds that the first appellant knew about the

entire transaction and hence, finds no valid reason to deny specific relief to

the first respondent as against appellants. This Court is not inclined to

entertain this appeal as there is no factual basis for any of the substantial

question of law framed by the appellants in this appeal. Accordingly this

Second Appeal is dismissed with costs. Consequently, connected

Miscellaneous Petition is closed.

04.04.2022

Index: Yes / No Speaking order / Non-speaking order dna https://www.mhc.tn.gov.in/judis

S.A.No.465 of 2017

S.S.SUNDAR, J., dna

To:

1. The I Additional District Court, Salem.

2. The I Additional Sub Court, Salem.

S.A.No.465 of 2017 and C.M.P. No.11670 of 2017

04.04.2022

https://www.mhc.tn.gov.in/judis

S.A.No.465 of 2017

https://www.mhc.tn.gov.in/judis

S.A.No.465 of 2017

https://www.mhc.tn.gov.in/judis