Madras High Court
Kamala vs Murugesan on 15 June, 2022
S.A.Nos.19 & 21 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 15.06.2022
CORAM
THE HONOURABLE Ms.JUSTICE P.T.ASHA
S.A.Nos.19 & 21 of 2020
Kamala ... Appellant in both SAs
-vs-
1.Murugesan ... Respondent in S.A.No.19 of 2020
2.G.Kumutha ... Respondent in both SAs
Prayer in S.A.No.19 of 2020 : Second Appeal field under Section 100 of
Civil Procedure Code, against the Judgment and Decree dated 14.08.2019
made in A.S.No.60 of 2018 on the file of Principal District Judge, Namakkal
by confirming the Judgment and Decree dated 01.08.2018 made in
O.S.No.184 of 2011 on the file of the Additional Subordinate Court,
Namakkal.
Prayer in S.A.No.21 of 2020 : Second Appeal field under Section 100 of
Civil Procedure Code, against the Judgment and Decree dated 14.08.2019
made in A.S.No.61 of 2018 on the file of Principal District Judge, Namakkal
by confirming the Judgment and Decree dated 01.08.2018 made in
1/18
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
O.S.No.49 of 2017 on the file of the Additional Subordinate Court,
Namakkal.
For Appellant : Mr.S.Senthil
in both S.As
For Respondents : Mr. Mr.N.Suresh
in both S.As
*****
COMMON JUDGMENT
The un-successful plaintiff before the Courts below is the appellant
herein before this Court.
2. The parties are referred to the same litigative status as before
the Trial Court in O.S.No.184 of 2011. S.A.No.19 of 2020 arises from the
judgment and decree in O.S.No.184 of 2011 and S.A.No.21 of 2020 arises
from out of the judgment and decree in O.S.No.49 of 2017.
3. Plaint Averments in O.S.No.184 of 2011
(i) It is the case of the plaintiff that the suit properties, which are
situated in various survey numbers belong to the first defendant, who had
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
purchased the same under 7 sale deeds, the first of which is dated
01.10.2009 and the last of which is dated 24.08.2010. It is the further case
of the plaintiff that the first defendant had appointed one V.Ramanathan,
S/o. Vaiyapuri as his Power Agent under two Powers of Attorney dated
19.05.2010 and 25.08.2010 in respect of the properties covered under the
Sale Deeds referred above. The Power Agent was given the right to sell the
property as a whole or in a portion, lease, mortgage, create an encumbrance
etc., On the strength of this Power Deed, the Power Agent had entered into
an Agreement of Sale with the plaintiff on 27.08.2010, agreeing to sell the
suit properties to the plaintiff. The said sale agreement is a registered
document. As per the recitals of the agreement, the plaintiff had undertaken
to purchase the suit properties for a total consideration of Rs.2,00,000/-.
(ii) It is the plaintiff's case that on the date of the execution of the
sale agreement, a sum of Rs.50,000/- was paid as an advance by the plaintiff
to the Power Agent, Ramanathan. The balance sum of Rs.1,50,000/- was to
be paid within a period of 2 years (i.e) on or before 27.08.2012. The
plaintiff would contend that he has been always ready and willing to
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
purchase the properties. In the meanwhile, the said Ramanathan passed
away on 29.10.2010 and after his demise, the first defendant had executed
a Sale Deed in favour of the second defendant on 19.11.2010. The plaintiff
would contend that this Sale Deed is a sham and nominal one and therefore,
void. The plaintiff would state that the first defendant is bound by the
Agreement of Sale executed by his Power Agent and is liable to execute the
Sale Deed in favour of the plaintiff in respect of the suit properties by
receiving the balance sale consideration.
(iii) In the mean time, the second defendant had filed O.S.No.369 of
2011 on the file of the District Munsif, Namakkal for a bare injunction
contending that she is in possession of the suit properties, pursuant to the
Sale Deed dated 19.11.2010 and that the plaintiff had to be restrained by
means of a permanent injunction from interfering with her peaceful
possession and enjoyment of the suit properties. The said suit, according to
the plaintiff, is not maintainable, since no right flows to the second
defendant. The plaintiff would submit that on 13.08.2011, she had issued a
legal notice demanding that the defendants executed a Sale Deed in her
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
favour as per the terms of the Sale Agreement dated 27.08.2010. After
receiving the said notice, a reply notice dated 18.08.2011 has been received
from the defendants denying the claim of the plaintiff. Therefore, the
plaintiff has been constrained to file the suit for specific performance.
4. The Written statement filed by the first defendant was adopted
by the second defendant. It is the case of the defendants that the said
Ramanathan was a real estate broker and had assured the plaintiff that he
would sell the suit properties by dividing it into plots whereby it would fetch
a better price. Believing these words, the plaintiff had executed the Power of
Attorney in favour of the said Ramanathan. The defendants would further
submit that even as per the Sale Deeds, under which, they had purchased the
properties, the total sale consideration in respect of the properties was over a
sum of Rs.3,00,000/- in the year 2010. Therefore, the execution of the
Agreement of Sale to sell the very same properties for a meager sum of
Rs.2,00,000/- would demonstrate that the agreement has been made with
malafide intention. The defendants would submit that the plaintiff did not
have the wherewithal to pay sum of Rs.2,50,000/-, since her husband was
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
working as a Salesman in TASMAC and earning a small salary of
Rs.5,000/-. This salary was just sufficient for the family to meet their day-
to-day expenses. Therefore, there is no possibility of the plaintiff paying the
advance of Rs.50,000/- to the Power Agent, Ramanathan. The said
Ramanathan had also not paid any amounts to the first defendant. If really
the plaintiff was ready and willing as contended by her, she could have very
well got her sale executed in her favour using the Power Agent, Ramanathan
during his life time. The fact that the plaintiff has not got the sale deed
executed only shows that the Agreement of Sale was not executed with an
intention to sell but made with an intention to grab the properties. The
plaintiff has now taken advantage of the death of Ramanathan to file the
present suit. The first defendant would contend that on 19.11.2010, he has
sold the properties to the second defendant for a valid consideration of
Rs.3,00,000/- and the second defendant was put in possession of the
properties, pursuant to the sale. Since the plaintiff had attempted to interfere
and cause hindrance to the enjoyment of the properties by the second
defendant, the second defendant had filed a suit O.S.No.369 of 2011 on the
file of the District Munsif, Namakkal, which was transferred and re-
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
numbered as O.S.No.49 of 2017 on the file of the Additional Subordinate
Court, Namakkal. The suit lacks bonafides and therefore deserves to be
dismissed.
5. This suit was dismissed by the Principal District Munsif,
Namakkal, by a common judgment and decree dated 01.08.2018.
Challenging the same, the plaintiff had filed A.S.No.60 of 2018 on the file of
the Principal District Court, Namakkal, which also ended in dismissal.
Against the said judgment and decree, S.A.No.19 of 2020 has been filed.
6. Plaint Averments in O.S.No.49 of 2017
The second defendant in O.S.No.184 of 2011 had filed a suit
O.S.No.369 of 2011 on the file of the Principal District Munsif Court,
Namakkal, which was subsequently transferred to the Sub Court, Namakkal
and re-numbered as O.S.No.49 of 2017. It is the case of the second
defendant that she had purchased the suit properties on 19.11.2010 from the
first defendant by paying a valid consideration. Revenue records were also
mutated in her name and it is she, who is paying the Kists in respect of the
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
properties in the name of her predecessor-in-title, Murugesan, the first
defendant in O.S.No.184 of 2011. It is her contention that on the date of
sale, she has been put in possession of the properties. While so, the plaintiff
would claim a right over the suit property under a Sale Agreement dated
27.08.2010 entered into by her with one Ramanathan, the Power Agent of
the first defendant. The second defendant would contend that she is in
possession and enjoyment of the suit properties and that the defendant
through her men and agents was attempting to interfere with her peaceful
possession and enjoyment of the properties.
7. Written statement of the defendant in O.S.No.49 of 2017.
The plaintiff in O.S.No.184 of 2011, the defendant in this suit would
deny the contention that the second defendant is in possession and
enjoyment of the suit properties. It is her contention that she had entered
into a Sale Agreement dated 27.08.2010 with the Power Agent of the first
defendant in O.S.No.184 of 2011 and that she had paid an advance of
Rs.50,000/- as against the total sale consideration of Rs.2,00,000/- to the
said Power Agent. Since the said Ramanathan passed away, the first
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
defendant was liable to execute the Sale Deed in her favour by receiving the
balance sale consideration. She would submit that she has already taken
steps to file a suit for specific performance.
8. This suit was decreed by the learned Additional Subordinate
Judge, Namakkal and the plaintiff in O.S.No.184 of 2011 had taken up the
said judgment and decree in appeal to the Principal District Judge,
Namakkal in A.S.No.61 of 2018. The appeal was also dismissed. As
against this judgment and decree, the plaintiff in O.S.No.184 of 2011 has
filed S.A.No.21 of 2020.
9. Both the Courts below have disposed of the suits of the appeals
by way of a common judgment. Therefore, this Court is also proceeding to
pass a common judgment in these two second appeals.
10. Mr.S.Senthil, learned counsel appearing on behalf of the
appellant would contend that on 19.05.2010 and 25.08.2010, two Powers of
Attorney-Exs.A2 and A10 were executed in favour of Ramanathan by the
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
first defendant authorising the said Ramanathan to sell the suit properties.
Pursuant to these Powers of Attorney, the said Ramanathan had executed an
Agreement of Sale dated 27.08.2010 in favour of the plaintiff agreeing to sell
the suit properties for a total sale consideration of Rs.2,00,000/- and an
advance of Rs.50,000/- was paid and the time for performance was fixed as
two years. Within a month of execution of the Agreement of Sale, the Power
of Attorney, Ramanathan died on 29.10.2010. After his death, the first
defendant has proceeded to sell the suit properties to the second defendant
under a Sale Deed dated 19.11.2010. This Sale deed, according to the
learned counsel for the plaintiff, was a fraudulent one done with an intention
of removing the properties from out of the reach of the plaintiff. The
plaintiff had issued a legal notice dated 13.08.2011 to both the parties
calling upon them to execute the Sale Deed in favour of the plaintiff. The
said notice was responded to by the defendants vide their reply notice dated
18.08.2011. The learned counsel would submit that the agreement of Sale
was a valid document, since all the original documents were handed over by
the first defendant to the Power Agent, who in turn had handed over the
documents to the plaintiff, which would clearly show that the Agreement of
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
Sale was intended to be acted upon. The learned counsel had relied upon the
judgment reported in (2019) 8 SCC 62 [R.Lakshmikantham -vs- Devaraji]
to support his argument. The mere fact that a property was sought to be
sold for a price lesser than for what it was purchased would not make the
agreement illegal. He would therefore submit that the Courts below have
concurrently committed an error in dismissing the suit.
11. Per contra, Mr.N.Suresh, learned counsel appearing on behalf
of the respondents would submit that very payment of advance of sum of
Rs.50,000/- has not been proved by the plaintiff and the same appears to be
suspicious. The plaintiff is none other than the sister-in-law of the deceased
Power Agent. He has brought to the attention of this Court the defense
raised by the defendants in their written statement, wherein, the defendants
have categorically submitted that the value of the property in question was
over a sum of Rs.3,00,000/-, even at the time when the plaintiff had
purchased the property and there was no question of plaintiff agreeing to sell
the same for a lesser value. He would point out the discrepancies in the
evidence of the plaintiff's witnesses with reference to the payment of the
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
alleged advance amount. The plaintiff, as P.W-1, has stated that the
advance of Rs.50,000/- has been paid two days prior to the execution of the
agreement and had categorically stated that the money had not been paid on
the date on which the agreement had been executed. P.W2, on the contrary,
has stated that there is a recital in the Agreement dated 27.08.2010 that a
sum of Rs.50,000/- had not been paid as advance. He would state that this
amount was paid on the date of the agreement and he has seen the payment
of this sum. P.W-3, on the contrary, would state that the agreement of sale
was executed on 28.10.2010 and on this day, a sum of Rs.50,000/- had been
paid and that the witness had seen that the payment of the amount by the
plaintiff to the said Ramanathan, The learned counsel would also highlight
the fact that even as per the very admission of P.W-1, the plaintiff she did
not have the resources or the wherewithal to pay the sale consideration. In
her cross examination, P.W1 has stated that she had asked for two years
time to complete the transaction, as she did not have the necessary funds
and she was not in a position to pay a sum of Rs.2,00,000/-. She has
categorically admitted that after the execution of the Sale Agreement, she
was not in a position to pay a sum of Rs.2,00,000/- which clearly showed
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
the lack of readiness and willingness to proceed with the Sale Agreement.
He would also submit that the last of the sale deeds in favour of the plaintiff
had taken place on 24.08.2010 and the power of attorney has been executed
on 25.08.2010, authorising the power agent to sell the property as a whole
or as plots and that on 27.08.2010 itself, the Agreement of Sale has been
executed. He would contend that the suit for specific performance has to
fail, since the plaintiff has not been able to prove the passing of
consideration and also that the she was ready and willing to proceed with
the same.
12. As regards as the appeal filed against the suit for bare
injunction, both the Courts below held that the second defendant has been
put in possession of the properties, pursuant to the Sale on 19.11.2010.
Further, the plaintiff has in no way established that she has been put in
possession of the properties.
13. Heard the learned counsel on either side and perused the
materials available on record.
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
14. The finding in the suit for specific performance would enure to
the suit for bare injunction. The plaintiff has come forward with the case
that on 27.08.2010, the Power of Attorney of the first defendant had entered
into an agreement of sale in favour of the plaintiff in respect of the suit
properties. The said Deed has been marked as Ex.A1. A reading of this
Agreement does not anywhere indicate that on the date of agreement, the
advance amount of Rs.50,000/- had been paid to the Power Agent
representing the first defendant. The above recital has to therefore be
examined with the oral evidence of P.Ws.1 to 3. The plaintiff, as P.W1,
would state that the said sum of Rs.50,000/- was paid two days prior to the
execution of the Sale. However, P.W2 would state that the payment was
made on the date on which the agreement was executed (i.e) on 27.08.2010.
The third witness, namely, P.W.3 would state that the agreement was
executed on 28.08.2010 and on this day, he has witnessed the payment of
sum of Rs.50,000/- by the plaintiff to the deceased Ramanathan. A mere
perusal of these admissions in cross clearly supports the contentions of the
defendants that no amounts had been paid by the plaintiff and that the
power agent has created the agreement in favour of the plaintiff, who is none
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
other than the sister-in-law of the deceased Power Agent to snatch away the
property.
15. Yet another fact that has to be considered is that on
25.08.2010, the Power of Attorney had been executed in favour of the
deceased Ramanathan authorising him to sell the properties either in
portions or sale, lease the same, accept advances, execute documents etc,
within two days, the agreement of sale was executed in favour of the
plaintiff. The value of the properties as set out by the Appellate Court in a
tabulated statement in its judgment would show that the value of the "A"
schedule property was over a sum of Rs.3,06,000/-. However, the
Agreement of Sale, which has put forward would indicate that the entire suit
properties have been sold for a sum of Rs.2,00,000/- . Therefore, the
findings of the Courts below that the Agreement of Sale was not a valid
document has to necessarily be up-held. That apart, the suit being one for
specific performance, the plaintiff has to prove her readiness and
willingness. If the same is analysed with the oral and documentary
evidence, it is clear that the plaintiff was not ready and willing for the
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
following reasons:
(a) The plaintiff, as P.W.1, has admitted that she did
have the money to pay the balance sale consideration on
the date of signing of the agreement, which position
continued for two years.
(b) The notice calling upon the first defendant to
execute the Sale Deed has been filed, nearly a year after
the sale of the properties in favour of the second
defendant.
(3) There is no explanation as to why the
plaintiff had averred that despite his repeated requests
the first defendant did not come to execute the Sale
Deed, particularly, when the said Ramanathan had been
nominated as a Power Agent and he had been alive till
29.09.2010 and the plaintiff if she was ready with the
balance sale consideration could have asked the said
Ramanathan to execute the Sale Deed.
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
16. The judgment relied upon by the plaintiff does not apply to the
case on hand and therefore does not support the plaintiff's case. The
plaintiff has not made out any substantial questions of law for admitting and
allowing the above Second Appeals.
17. Accordingly, these second appeals are dismissed. No costs.
15.06.2022
Index : Yes / No
speaking Order : Yes / No
srn
To
1.The Principal District Judge, Namakkal.
2.The Additional Subordinate Court, Namakkal.
https://www.mhc.tn.gov.in/judis
S.A.Nos.19 & 21 of 2020
P.T.ASHA, J.,
srn
S.A.Nos.19 & 21 of 2020
15.06.2022
https://www.mhc.tn.gov.in/judis
