Madras High Court
A.Selvi vs P.Meenakshi Ammal .. 1St on 20 April, 2022
S.A.(MD)No.731 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) No.731 of 2010
and
C.M.P.(MD) No.8030 of 2017
A.Selvi .. Appellant/2nd Respondent/
(Added as party in lower
appellate court and not a
party in the trial court)
-vs-
1.P.Meenakshi Ammal .. 1st Respondent/Appellant/
Plaintiff
2.Saithoon Beevi .. 2 Respondent/1st Respondent/
nd
Defendant
Prayer :- Second Appeal filed under Section 100 of Civil Procedure Code
to set aside the judgment and decree of the Sub Ordinate Judge,
Devakkottai dated 07.07.2010 in A.S.No.47 of 2006 reversing the
judgment and decree of the Principal District Munsif cum Judicial
Magistrate, Karaikudi in O.S.No.54 of 2003 dated 25.07.2006.
For Appellant : Mr.R.Sundar Srinivasan
For R1 : Mr.A.Chandrakumar
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S.A.(MD)No.731 of 2010
For R2 : No appearance
******
JUDGMENT
This second appeal arises out of a suit for specific performance.
The 1st respondent herein viz., Meenakshi Ammal filed O.S.No.54 of
2003 before the Principal District Munsif cum Judicial Magistrate,
Karaikudi for directing the 2nd respondent herein Saithoon Beevi to
execute a registered sale deed conveying the suit property in her favour.
The stand of the plaintiff was that the defendant had obtained a loan of
Rs.2,500/- from her on 25.04.1979 and mortgaged the suit property by
executing a deed dated 25.04.1979. On 25.06.1987, after receiving a
further sum of Rs.6,375/-, the defendant delivered possession of the suit
property to her and also delivered the parent document. She agreed to
execute a registered sale deed as and when demanded. The 2nd
respondent issued notice dated 16.06.1997 calling upon the 1st
respondent to return the title documents, since the mortgage debt stood
discharged by operation of law. The plaintiff issued a reply contesting
her stand. Thereafter, the plaintiff is said to have approached the 2nd
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S.A.(MD)No.731 of 2010
respondent for executing a sale deed in April, 2003. Since the 2 nd
respondent denied, the suit in question came to be laid. The
defendant/2nd respondent herein filed written statement controverting the
plaint averments. Based on the divergent pleadings, the trial court
framed the necessary issues. The plaintiff examined herself as P.W.1.
One Gandhi was examined as P.W.2. Ex.A1 to Ex.A6 were marked. On
the side of the defendant, no evidence was adduced. The trial court,
however, came to the conclusion that no case for granting specific
performance was made out and dismissed the suit by judgment and
decree dated 25.07.2006. Aggrieved by the same, the plaintiff filed
A.S.No.47 of 2006 before the Sub Court, Devakkottai. In the
meanwhile, the defendant/2nd respondent herein sold the suit property in
favour of the appellant herein. The appellant herein filed I.A.No.39 of
2010 and got herself impleaded in the first appeal. After hearing both
sides, the first appellate court, by the impugned judgment and decree
dated 07.07.2010, reversed the decision of the trial court and decreed the
suit as prayed for and allowed the appeal. Challenging the same, this
second appeal came to be filed.
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S.A.(MD)No.731 of 2010
2. The second appeal was admitted on 18.04.2022 on the following
substantial questions of law:-
“(i) Whether the plaintiff has satisfied the
statutory requirement set out in Section 16(c) of the
Specific Relief Act, 1963? and
(ii) Whether the suit is hit by limitation?”
3. The learned counsel appearing for the appellant reiterated the
contentions set out in the memorandum of grounds and called upon this
Court to answer the substantial questions of law in favour of the
appellant and set aside the impugned judgment and decree and restore the
decision of the trial court.
4. Per contra, the learned counsel appearing for the 1st respondent
submitted that no interference is called for.
5. I carefully considered the rival contentions and went through the
evidence on record.
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S.A.(MD)No.731 of 2010
6. Before commencement of the arguments, it was brought to the
notice of this Court that after the disposal of the first appeal, E.P.No.5 of
2011 was filed and sale deed was also executed in favour of the plaintiff.
The plaintiff had spent a sum of Rs.1,50,000/- towards registration and
stamp duty expenses. It is also beyond dispute that the suit property had
already been mortgaged and the vendor of the appellant had received a
sum of Rs.11,000/- from the plaintiff. Therefore, the appellant undertook
to deposit a sum of Rs.2,00,000/- (Rupees Two Lakhs only) to the credit
of O.S.No.54 of 2003 on the file of the Principal District Munsif cum
Judicial Magistrate, Karaikudi. The appellant, Mrs.Selvi is present in
person before me and she has also made written endorsement in the
docket sheet agreeing to deposit the aforesaid sum within a period of four
months. The said undertaking is recorded.
7. The question that falls for consideration is whether the plaintiff
was entitled to the relief of specific performance. Even according to the
plaintiff, the sale agreement was entered into with the defendant on
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S.A.(MD)No.731 of 2010
25.06.1987. I went through the contents of Ex.A2. It is obviously a
sale deed. It is well known that an immovable property worth beyond
Rs.100/- can only be sold through a registered instrument. Through an
unregistered sale deed, an immovable property cannot be sold.
Therefore, probably to overcome the same, the plaintiff had chosen to
treat Ex.A2 as a sale agreement. It is true that in Ex.A2, there is a
reference to the effect that the defendant had agreed to execute a sale
deed as and when demanded. Even to naked eye, the said clause appears
to be an interpolation. Only on the strength of this interpolation, the suit
was laid.
8. Even though the sale agreement is of the year 1987, the suit was
filed only on 28.04.2003. Thus, there is a gap of full 16 years between
the date of agreement and the date of filing of the suit. That is not the
only aspect. As rightly pointed out by the learned counsel appearing for
the appellant, there was exchange of notices between the plaintiff and the
defendant in the year 1997. The defendant had categorically repudiated
her liability and demanded that the plaintiff should return the parent
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S.A.(MD)No.731 of 2010
document. The suit was filed six years later. There is nothing on record
to show that the plaintiff was continuously ready and willing to conclude
the transaction right from the inception. That is why the trial court
rightly came to the conclusion that the plaintiff has not fulfilled the
requirements of readiness and willingness as envisaged by Section 16 of
the Specific Relief Act and that the suit was clearly barred by limitation.
The first appellate court, without taking into account any of these
aspects, had erroneously reversed the well considered decision of the
trial court. I answer the substantial questions of law in favour of the
appellant. The impugned judgment and decree of the first appellate court
are set aside. The decision of the trial court is restored. However, in
view of the written undertaking given by the appellant both in person
and also through her counsel, the appellant is directed to deposit a sum of
Rs.2,00,000/- (Rupees Two Lakhs only) to the credit of O.S.No.54 of
2003 on the file of Principal District Munsif cum Judicial Magistrate,
Karaikudi within a period of four months from the date of receipt of a
copy of this judgment and decree. This amount of Rs.2,00,000/- has
been quantified by taking note of the registration and stamp duty
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S.A.(MD)No.731 of 2010
expenses incurred by the plaintiff. Since a sum of Rs.50,000/- has also
been paid over and above, I also decree that the mortgage stands
discharged. It is open to the 1st respondent herein to withdraw the said
amount. Upon such withdrawal by the 1st respondent, it is open to the
appellant herein to take back Ex.A1 dated 24.05.1979 and Ex.A4 dated
21.05.1977. The sale deed dated 29.03.2012 (Document No.3152/2012
on the file of Joint Sub Registrar-II, Karaikudi) was executed pursuant to
the impugned judgment and decree. Since the same has been set aside,
the jurisdictional Sub Registrar is directed to make appropriate entries in
the Register of encumbrances. The Second Appeal is allowed on these
terms. No costs. Connected miscellaneous petition is closed.
20.04.2022
Internet : Yes/No
Index : Yes/No
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.
abr
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S.A.(MD)No.731 of 2010
To
1.The Sub Judge, Devakkottai.
2.The Principal District Munsif cum
Judicial Magistrate, Karaikudi
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S.A.(MD)No.731 of 2010
G.R.SWAMINATHAN, J.
abr
S.A.(MD) No.731 of 2010
20.04.2022
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