Madras High Court
Gowthaman vs Selvi Karunanidhi on 4 July, 2022
A.S. No.103 of 2019
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04.07.2022
CORAM:
THE HONOURABLE MS.JUSTICE R.N.MANJULA
A.S. No.103 of 2019
1.Gowthaman
2.Ananthakumar ... Appellants /
Defendants
versus
Selvi Karunanidhi ... Respondent /
Plaintiff
PRAYER: Appeal Suit filed under Section 96 of the Code of Civil
Procedure, against the judgment and decree dated 27.08.2018 made in
O.S.No.11324 of 2010 on the file of the learned VI Additional Judge, City
Civil Court, Chennai.
For Appellants : Mr.P.Rajendran
For Respondent : Mr.N.Nirmalraj
JUDGMENT
This Appeal has been preferred challenging the judgment of the
learned VI Additional Judge, City Civil Court, Chennai dated 27.08.2018
made in O.S.No.11324 of 2010.
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2. The appellants are the defendants in the suit was filed by
the respondent / plaintiff for the relief of specific performance.
3. The case of the respondent / plaintiff is that on
26.02.2005 a Sale Agreement was entered into between the plaintiff and the
defendants for selling the suit property for a total sale consideration of
Rs.16,50,000/-. On the day of Sale Agreement itself a sum of Rs.11,25,000/-
was paid as part sale consideration and the balance sale consideration was
agreed to be paid within a period of three months.
3.1. Despite the plaintiff was ready and willing to pay the
balance sale consideration of Rs.5,25,000/-, the defendants did not come
forward to execute the Sale Deed and perform his part of contract. Hence,
the plaintiff filed the suit for the relief of specific performance. Since the
Sale deed was not executed for nearly 2 years, the parties had entered into a
Memorandum of Understanding on 05.02.2007 by stating that the Sale
Agreement can be terminated on payment of Rs.16,77,000/- to the plaintiff.
Even according to the Memorandum of Understanding, the defendants failed
to make the payment of Rs.16,77,000/- within 15 days from 05.02.2007.
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Since the defendants neither executed the Sale Deed nor returned the
amount of Rs.16,77,000/- as agreed in the Memorandum of understanding,
the plaintiff has filed the suit for specific performance.
4. The defendants resisted the suit by stating that the suit
property was owned by one R.K.Munusamy, who was the paternal uncle of
the defendants. He died on 12.01.1982 leaving behind his wife
Dhanabackiam alone as his legal heir. Dhanabackiam expired on
11.12.1998 and thereafter R.K.Munusamy's brother, R.K.Parasuraman's
children have become the legal heirs for the suit property.
4.1. The defendants are the sons of R.K.Parasuraman. Apart
from the defendants, there are other legal heirs of their father
R.K.Parasuraman and they are not parties to the Sale Agreement. The
plaintiff was not ready and willing to perform her part of contract also. It is
false to state that the defendants had assured to get the consent of the rest of
the legal heirs for the sale of the suit property. The Memorandum of
Understanding is also a concocted document making use of the signatures
obtained by the defendants in the blank papers by the plaintiff.
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5. On the basis of the above pleadings, the learned trial
Judge has framed the following issues;
“i. Whether the plaintiff is entitled for the decree directing the defendants to
execute the sale deed in respect of the suit property in favour of the plaintiff
in pursuance of the agreement for sale dated 26.02.2005 ?
ii. Whether the undertaking letter and page 3 and 4 of the sale agreement
filed as documents in this case are fabricated documents as alleged by the
defendants ?
iii. Whether the sale agreement dated 26.02.2005 cannot be specifically
enforced in view of the provisions contained in Section 17 of the Specific
Relief Act 1968 since there are other joint owners who are not parties to the
agreement of sale and not willing to sell the suit property ?
iv. To what other relief the parties are entitle to ?”
6. During the course of trial, on the side of the plaintiff, one
witness was examined as P.W.1 and Ex.A.1 to Ex.A.6 were marked. On the
side of the defendants, 1st defendant was examined as D.W.1 and Ex.B.1
was marked.
7. At the conclusion of the trial and on considering the
evidence on record, the trial court decreed the suit as prayed. Aggrieved over
that, the defendants have filed the present Appeal.
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8. Heard the learned counsel for the appellants and the
learned counsel for the respondent and also perused the materials available
on record.
9. The learned counsel for the appellants submitted that the
appellants-defendants do not have the title over the while of the suit property
in order to execute the Sale Agreement; apart from the defendants, there are
5 more legal heirs for their father Late R.K.Parasuraman; the other legal
heirs of the deceased R.K.Parasuraman are also necessary parties to the suit;
since the defendants cannot represent the interest of other joint owners of the
suit property, the decree passed for specific performance is inequitable; the
learned trial Judge did not take into consideration of the essential legal
aspects and chosen to decreed the suit and hence, it is liable to be reversed.
10. In fact, the appellants / defendants are the adopted sons
of R.K.Parasuraman; they declared themselves as the only legal heirs of the
deceased R.K.Parasuraman and executed the Mortgage Deed in respect of
the suit property on 10.02.1987; since the appellants allowed the
respondent-plaintiff to believe that they are the only legal heirs and received
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A.S. No.103 of 2019
the balance sale consideration from her; now for the purpose of the suit the
appellants have stated that there are other legal heirs for R.K.Parasuraman
and they are not parties to the Sale Agreement; the learned trial Judge has
rightly appreciated the conduct of the parties and granted the discretionary
relief for specific performance in favour of the respondent-plaintiff and
hence, it does not require any interference,
11. Points for consideration;
“(i) Whether the decree for specific performance passed by the
learned trial Judge for the entire suit property is fair and
proper ?
(ii) Whether the appellants are the sons of late
R.K.Parasuraman could represent the interest of other legal
heirs and the Sale Agreement executed by the appellants will
bind the other legal heirs of R.K.Parasuraman ?
(iii) Whether the judgment and decree of the learned trial Judge
is liable to be set aside ?”
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12. The fact that the Sale Agreement was entered into
between the plaintiff-respondent and the defendants-appellants on
26.02.2005 was not denied. Even the appellants have admitted in the written
statement that they had executed the Sale Agreement by affixing their
signatures as vendors. Since the Sale Agreement is a written document and
the appellants have also admitted their signatures made therein, its contents
can not be denied contrary to the settled position of law relating to Section
91 of the Evidence Act.
13. In the Sale Agreement [Ex.A.1], it is stated that the day
of Sale Agreement itself the earnest money of Rs.11,25,000/- was paid. The
total sale consideration for the suit property was fixed at Rs.16,50,000/-, out
of which a partial sale consideration of Rs.11,25,000/- has been paid on the
day of Sale Agreement itself and in the said document, the appellants-
defendants have affixed their signatures.
14. Despite the appellants deny the receiving the as stated in
Ex.A.1, no rebuttal proof is produced before the Court to show that the
appellants did not receive the amount as stated in the Sale Agreement
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[Ex.A.1]. Hence, the facts that the Sale Agreement was entered into between
the plaintiff and the defendants and on the day of Sale Agreement itself the
respondent-plaintiff had paid the partial sale consideration of Rs.11,25,000/-
are proved. It is also not proved before the Court that the sale consideration
was agreed at Rs.17,50,000/- as alleged by the appellants. The evidence on
record would prove that the total sale consideration was agreed at
Rs.16,50,000/- and out of which the respondent-plaintiff has paid a part sale
consideration of Rs.11,25,000/-.
15. The fact that the suit property was originally belonged to
one R.K.Munusamy, who is the brother of the appellants' father
R.K.Parasuraman is also not disputed. R.K.Munusamy died on 12.01.1982
without any issues. So his wife Dhanabackiam inherited the suit property
and she also died on 11.12.1998. Since Dhanabackiam died issueless and
intestate, as per Section 15(1)(b) of the Hindu Succession Act, 1956, the suit
property would devolve upon the heirs of her husband,. Since the appellants
are only the legal heirs of the brother of late R.K.Parasuraman, the property
would be inherited by them.
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16. Though the fact that all the children of R.K. Parasuraman
are entitled to the suit property, the appellants-defendants alone executed the
Sale Agreement under Ex.A.1 in favour of the respondent-plaintiff. And it
was without the knowledge of the other legal heirs. Since the other legal
heirs did not give any Power in favour of the defendants 1 and 2, they
cannot represent the interest of the other legal heirs while executing Ex.A.1
in favour of the respondent-plaintiff.
17. The respondent/plaintiff got herself examined as P.W.1
and during her evidence has admitted that she has the knowledge about the
existence of the female heirs of late R.K.Parasuraman. In that case, she
ought to have compelled the appellants to bring the other legal heirs also for
executing the Sale Agreement for getting a better title over the suit property.
She has stated in her evidence that she was made to believe that they would
get the consent of other legal heirs for executing the Sale Deed. It is possible
for the respondent-plaintiff to believe on the words of the defendants. Since
they are the male members of the family, she could have believed that they
would bring the female heirs also at the time when the Sale Deed is
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executed. But the fact remains that the other female of the heirs of
R.K.Parasuraman are not parties to the Sale Agreement.
18. As per Section 17 of the Specific Relief Act, a person
who do not have any title cannot execute any Sale Agreement. Even if such
a Sale Agreement is executed that is not enforceable. So the sale agreement
executed by the appellants in favour of the respondent-plaintiff could be only
be limited to their undivided share in the suit property.
19. When the appellants-defendants could conveniently raise
the defence that the Sale Agreement is not enforceable because they did not
include the female legal heirs, they did not choose to return the earnest
money received by them. Instead they just cancelled the agreement after
sending notice to the respondent-plaintiff. The conduct of the defendants
would show that after allowing the respondent-plaintiff to shell out her
money, they left her at lurch.
20. Despite it was denied by the appellants about the receipt
of partial payment of sale consideration of Rs.11,25,000/- in their pleadings,
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they did not choose to suggest the same to PW1 during her cross
examination.
21. The learned trial Judge has rightly accepted the fact that
apart from the appellants/defendants there are other legal heirs for the
deceased R.K.Parasuraman and his wife. The learned trial Judge had made
an observation that the wife of the original owner R.K.Munusamy, and his
wife namely Dhanabackiam had adopted the appellants as their adopted
sons and only in that capacity the said Dhanabackiam had executed a
Mortgage Deed along with the defendants in favour of Triplicane Permanent
Fund Limited on 10.02.1987.
22. The story of the adoption was neither the case of the
appellants/defendants nor the case of the respondent/plaintiff. Just because
the appellants had joined with Late Dhanabackiam while she executed the
Mortgage Deed in favour of Triplicane Permanent Fund Limited and sign
the deed, that will not make them the adopted children of R.K. Mususamy.
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23. The learned trial Judge seems to have convinced himself
to invent a story of adoption in order to decree the suit in entirety. The
learned trial Judge has further observed that patta for the suit property stood
in the name of the appellants. Again with that it can not be concluded that
they are the adopted sons. Further patta is not a document of title and with
having the patta in their name alone the appellants can not claim entire right
over the suit property which was purchased by the original owner
R.K.Munusamy by virtue of the Sale Deed dated 23.03.1972.
24. Despite the plaintiff was ready and willing to perform her
part of contract and was waiting for the registration, the appellants did not
turn up. On 05.02.2007 they entered into a Memorandum of Understanding
with the plaintiff by stating that they agreed to hand over the total sum of
Rs.16,77,000/- towards compensation, refund of advance and expenses
incurred by the plaintiff for purchasing the stamp papers.
25. It is further agreed in the Memorandum of Understanding
[Ex.A.2] that within 15 days of the Sale Agreement, the agreed amount
should be paid to the respondent-plaintiff and in the case of failure to make
payment the respondent is entitled to get the Sale Deed executed in her
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favour. Even after the expiry of 15 days, the appellants did not return the
amount of Rs.16,77,000/-.
26. Despite the appellants pleaded about some fraud in
respect of Memorandum of Understanding that fact was not proved before
the Court. Since the execution of Memorandum of Understanding is a
written agreement, the production of the same is sufficient to prove its
contents, until the contrary is proved. In fact, the 1st appellant who was
examined as D.W.1 has categorically admitted about his signature and the
signature of his brother D.W.2 in the Memorandum of Understanding dated
05.02.2007 in his evidence.
27. The appellants-defendants manage to escape from their
liability to execute the Sale Deed by conveniently pleading that all the legal
heirs of R.K.Parasuraman were not parties to the Sale Agreement. They also
dodge to abide by the terms of Memorandum of Understanding [Ex.A.2] by
paying back the damages of Rs.16,77,000/-. Since the decree of specific
performance binding the other legal heirs who were not parties to the sale
agreement can not be granted, even if the equity lies in favour of the
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plaintiff, It is an appropriate case where the learned trial Judge could have
granted the alternative relief of refund of advance amount or the relief of
specific performance to the extent of undivided share of the appellants, by
proportionately apportioning the amount already paid and to refund the
balance with interest.
28. There are 7 legal heirs for the deceased R.K.Parasuraman
including these appellants. It is reliably understood that one of the sister of
the appellants, namely, Premavathi is no more. Hence, the plaintiff's
undivided share in the property would enhance to 2/6 from 2/7 but however
the suit property itself is seen to be 1000 sq.ft of house situated in a house
site measuring 1388 sq.ft. So the undivided share of 2/6 would not be
practical or convenient for execution.
29. Even as per the Memorandum of Understanding the
defendants had agreed to return a sum of Rs.16,77,000/-. At the time when
the Sale Agreement was entered into between the parties, the prevailing rate
of interest in the National Bank was comparatively high. Hence I feel the
plaintiffs should be compensated by awarding interest on the sum of
Rs.16,77,000/-.
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30. Accordingly, this Appeal is partly allowed and the
judgment and decree dated 27.08.2018 passed by the learned VI Additional
Judge, City Civil Court, Chennai, made in O.S.No.11324 of 2010 is
modified to the effect that the plaintiff is entitled to get the decree for refund
for a sum of Rs.16,77,000/- along with interest at the rate of 10% per annum
from the date of the suit till the date of decree and at 6% from the date of
decree till the date of realization along with the stamp duty expenses of
Rs.90,000/- incurred by the plaintiff and the cost of this suit. The plaintiff is
also entitled to a charge over the suit property for the decree amount in
accordance with Section 55(6)(b) of the Transfer of Property Act. Time for
payment will be two months from the date of receipt of a copy of this
judgment.
04.07.2022
Speaking order / Non-speaking order
Index : Yes / No
Internet : Yes
sri
To
1.The VI Additional Judge, City Civil Court, Chennai.
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2.Record Keeper, V.R. Section, High Court, Madras.
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R.N.MANJULA, J.
sri
A.S. No.103 of 2019
04.07.2022
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