Kandasamy vs Duraisamy
2022 Latest Caselaw 6357 Mad

                                                                                    SA.No.257/2022




                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED : 29.03.2022

                                                      CORAM:

                                   THE HONOURABLE MR.JUSTICE S.S.SUNDAR

                                       SA.No.257/2022 and CMP.No.5240/2022

                    Kandasamy                                     .. Plaintiff / Appellant /
                                                                     Appellant
                                                        Vs.

                      Ammaniammal (Died)
                    1.Duraisamy
                    2.Chinnasamy
                    3.Sundarambal
                    4.Lakshmi                                     .. Defendants / Respondents /
                                                                     Respondents

                    Prayer:- Second Appeal preferred under 100 of CPC to set aside the
                    judgment and decree dated 21.09.2021 passed in A.S.No.5/2019 by the
                    learned Principal Subordinate Judge, Tiruppur confirming the judgment
                    and decree dated 28.09.2018 passed in O.S.No.11/2007 by the learned
                    District Munsif, Tiruppur.


                                      For Appellant           :   Mr.S.S.Swaminathan




https://www.mhc.tn.gov.in/judis
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                                                                                           SA.No.257/2022




                                                          JUDGMENT

(1) The unsuccessful plaintiff in the suit in O.S.No.11/2007 before the

learned District Munsif, Tiruppur who had preferred an appeal

without success in A.S.No.5/2019 before the learned Principal

Subordinate Judge, Tiruppur is the appellant in this second appeal.

(2) The appellant filed the suit in O.S.No.11/2007 for specific

performance of Sale Agreement dated 18.08.2005 and for other

consequential reliefs. The suit is also for permanent injunction

against the defendants not to interfere with the peaceful possession

and enjoyment of the suit property by the plaintiff.

(3) Brief facts that are set out in the plaint filed by the appellant are as

follows:

(4) The 1st defendant is the mother of the plaintiff and she died on

05.12.2007, after the suit, leaving behind the plaintiff and

defendants 2 to 5 as her legal heirs. The suit property belonged to

the 1st defendant by virtue of a registered Sale Deed dated

06.09.1972. The 1st defendant had entered into an Agreement of

Sale in respect of the suit property with the plaintiff on 18.08.2005.

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The sale price fixed under the sale agreement was Rs.30,000/- and

on the same day of agreement, the 1st defendant had received the

entire sale price amount from the plaintiff and agreed to execute

the Sale Deed in favour of the plaintiff whenever the plaintiff

wants to get the document registered in his name. Since the entire

sale consideration was received by the 1st defendant, she handed

over the original Sale Deed dated 06.09.1972 and patta passbook to

the plaintiff, following which the Kists were paid by plaintiff. The

appellant filed the suit stating that the 1st defendant was

unnecessarily prolonging the execution of the Sale Deed as agreed

between them and was attempting to dispossess the plaintiff and

alienate the suit property. During the pendency of the suit the 1st

defendant died leaving behind defendants 2 to 5 as her legal heirs.

(5) The suit was contested by all the defendants and the suit agreement

was specifically disputed by the defendants. The suit agreement

was described by the defendants as a document fabricated by

committing forgery. It is contended that the plaintiff filed the suit

to snatch the entire suit property from the 1st defendant by creating

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a fabricated agreement. Defendants 3 to 5, while denying the suit

agreement, prayed for a counter claim to divide the suit properties

into four equal shares and to allot two shares to defendants 3 to 5

and for other consequential reliefs. A reply statement was also filed

by the plaintiff and an additional written statement was also filed

by the defendants. In the reply statement, it is specifically stated

that the plaintiff is in enjoyment of the suit property long before the

date of sale agreement. It is stated in the reply statement that the

mother of plaintiff namely, the 1st defendant, wanted to give the

suit property to the plaintiff and the 2nd defendant was given some

other property by their father himself and that she allowed the

plaintiff to enjoy the property even during her life time prior to the

agreement. Before the Trial Court the appellant produced Exs.A1

to A4 and examined himself as PW1. On behalf of the respondents,

DW1 and DW2 were examined but no documents were filed.

(6) The Trial Court after framing a specific issues, found that the

execution of the suit sale agreement is probable but held that the

agreement is not registered and hence it cannot be enforced in law

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as the Sale Agreement requires to be registered under Section

17(1A) of the Registration Act. PW1, though was cross-examined

partly for reasons known to the appellant, he did not appear before

the Court to subject himself for further cross-examination by the

defendants. The witnesses examined by the defendants, namely

DW1 and DW2, were not cross examined by the plaintiff. Taking

the over all evidences, the Trial Court dismissed the suit. Though

the Trial Court held that the sale agreement is not admissible in

evidence for want of registration, it is to be seen that the suit sale

agreement was executed prior to the amendment introduced to the

Registration Act in 2012 and therefore the findings with regard to

the requirement of registration may be not in accordance with law.

However, the suit was dismissed on merits after referring to the

several other circumstances as well. The counter claim of

defendants 3 to 5 was allowed and the Trial Court granted a

preliminary decree in favour of defendants 3 to 5 allotting 1/4 th

share in favour of the 2nd defendant and 1/4th share in favour of

defendants 3 and 4 jointly. Aggrieved by the judgment and decree

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of the Trial Court the plaintiff/appellant preferred an appeal in

A.S.No.5/2019 before the learned Principal Subordinate Judge,

Tiruppur.

(7) The Lower Appellate Court, after independently considering the

entire evidence came to the conclusion that the suit agreement is

surrounded by suspicion and the appellant has failed to prove the

execution of the sale agreement. The Lower Appellate Court also

considered the conduct of the appellant in the course of trial. While

finding that the appellant has failed to prove the sale agreement,

the Lower Appellate Court justified the dismissal of suit. The

Lower Appellate Court found that non appearance of the plaintiff

for further cross-examination and failure to cross examine

defendants' witnesses for no valid reason would falsify the case.

Since the appellant did not discharge his burden of proof, the

Lower Appellate Court dismissed the appeal. Though the Lower

Appellate Court found that the suit sale agreement does not require

registration, it is held that the transaction as a whole is not proved

by the plaintiff, as the plaintiff has not examined any independent

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witness to prove the passing of consideration for the sale

agreement. The plaintiff, came forward with a version that he was

in possession of the property even before the sale agreement, in the

reply statement and that the property was handed over to the

plaintiff pursuant to the sale agreement and claimed protection

under Section 53A of the Transfer of the Property Act. Since the

agreement is not registered, there is no scope for considering the

plea relying upon Section 53 of the Transfer of Property Act.

Aggrieved by the judgments and decrees of the Courts below the

above appeal is preferred by the appellant/plaintiff.

(8) In the Memorandum of Grounds of Appeal, the appellant has raised

the following substantial questions of law:-

a. Whether the Courts below are justified in applying the provisions of the Tamil Nadu Act 29 of 2012 in respect of sale agreement executed in the year 2005?

b. Whether the Courts below are entitled to give retrospective application of the provisions of Tamil Nadu Act 29 of 2012 even though not provided for

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in the amendment itself?

c. Whether the Courts below are justified in rendering its decision based on conjectures and misreading and misinterpreting the evidence and law?

d. Whether the Lower Appellate Court can suo moto remand the suit for fresh disposal based on the available materials especially when plea for remand made in the written arguments?

e. Whether the Courts below can render it decision totally based on assumption and presumption of evidence?

f. Whether the findings of the Court below are supported by material evidence?

(9) From the discussions by the Courts below, this Court finds that the

appellant has come forward with a suit for specific performance

against his own mother. Further, the appellant failed to subject

himself to the continuation of his cross examination and did not

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cross examine the defendant side witnesses. This is fatal.

Defendants 2 and 4 were examined as DW1 and DW2 and their

version describing the suit agreement as forgery is not

controverted. No independent witness was examined to prove

execution of Sale Agreement. Though defendants made an attempt

to prove forgery, the document sent for expert's opinion came back

as the thumb impression of 1st defendant was smudged. The

plaintiff in a suit for specific performance should not only prove

the genuineness of agreement but also to exhibit a fair conduct to

get the equitable relief. The conduct of plaintiff during trial is fatal

to his case. Though the first two questions of law are answered in

favour of the appellant as the suit agreement need not be registered,

still the plaintiff is not entitled to the relief as he failed to prove the

genuineness of the agreement. This Court is unable to appreciate

the conduct of the appellant especially when he has come to Court

for an equitable relief. This Court is unable to find any illegality or

irregularity or perversity in the judgment of the Lower Appellate

Court which is well founded and supported by material evidence

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and attending circumstances.

(10) In the result, the Second Appeal is devoid of merits and hence,

dismissed.

29.03.2022 cda Internet : Yes

To

1.The Principal Subordinate Judge, Tiruppur.

2.The District Munsif, Tiruppur.

3.The Section Officer VR Section, High Court Chennai.

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S.S.SUNDAR, J.,

cda

SA.No.257/2022 and CMP.No.5240/2022

29.03.2022

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