Madras High Court
T.R. Thangavel vs Thangammal on 31 March, 2022
S.A.No.1289 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.03.2022
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.1289 of 2011
and
M.P. Nos.1 of 2011 & 1 of 2012
T.R. Thangavel ...Appellant
Vs.
Thangammal ... Respondent
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 20.07.2011 passed in A.S. No.45 of 2010, on
the file of the Principal District Judge, Namakkal, reversing the decree
and judgment dated 29.11.2008 passed in O.S. No.32 of 2008, on the file
of the Subordinate Court, Tiruchengode (transferred O.S. No.809 of 2002
of Subordinate Court, Namakkal).
For Appellant : Mr. N. Manokaran
For Respondent : Mr.D. Rajagopal
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S.A.No.1289 of 2011
JUDGMENT
The appellant is the defendant in O.S. No.32 of 2008 on the
file of the Subordinate Court, Tiruchengode (transferred O.S. No.809 of
2002 of Subordinate Court, Namakkal). The respondent/plaintiff filed
the suit for the following reliefs.
"1) To pass a decree for specific performance of contract directing
the defendant to receive the balance sale consideration of
Rs.25,000/- and execute a sale deed and register the same within
the time to be specified by the Court and if the defendant failed to
do so, order to deposit the sale price into Court, execute and
register the sale deed by this Court on behalf of the defendant (or)
in the alternative
2) directing the defendant to repay the advance amount of
Rs.75,000/- plus Rs.25,000/- towards damages for non execution
of the sale deed with interest @ 24% per annum from the date of
suit till realisation,
3) award costs of suit and
4) for a permanent injunction restraining the defendant, his
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S.A.No.1289 of 2011
men, agents and attorneys from in any way alienating the
properties,
5) grant such other relief or reliefs the Hon'ble Court may
deem fit and proper in the circumstances of the case".
2. For the sake of convenience, the parties are referred to as
per their ranking in the trial court and at appropriate places, their rank in
the present appeal would also be indicated.
3. The case of the plaintiff in nutshell is as follows:
The defendant executed an agreement of sale dated 22.08.1994
(Ex.A1) in favour of the plaintiff agreeing for the sale of the suit
properties. The time mentioned in the agreement for the completion of
transaction was three years and the sale consideration was fixed as
Rs.1,00,000/-, out of which a sum of Rs.75,000/- was paid by the
plaintiff towards advance to the defendant on the date of Ex.A1. The
plaintiff was always ready and willing to perform her part of the contract
from the date of sale agreement. The plaintiff also sent a notice undated
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S.A.No.1289 of 2011
nil (Ex.A3) to the defendant indicating her willingness to get the sale
deed executed in her favour by paying the balance sale consideration of
Rs.25,000/-. On receipt of the said notice, the defendant approached the
plaintiff and expressed his inability to execute the sale deed in favour of
the plaintiff and requested for a further period of 3 years and made an
endorsement dated 20.08.1997 (Ex.A2) in this regard on Ex.A1.
Thereafter, despite repeated demands by the plaintiff, the defendant did
not come forward to honour the sale agreement and therefore, a lawyer's
notice dated 29.04.1999 (Ex.A4) was issued to the defendant calling
upon the defendant to perform his part of the contract. The defendant
sent a reply dated 12.06.1999 (Ex.A5), which according to the plaintiff
contained false allegations. Hence the suit was filed by the plaintiff.
4. The suit was resisted by the defendant on the following
grounds.
1) It is false to state that the defendant agreed to sell the suit
properties in favour of the plaintiff for a sale consideration of
Rs.1,00,000/- and that a sum of Rs.75,000/- was paid by the
plaintiff towards advance.
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S.A.No.1289 of 2011
2) The suit properties do not belong to the defendant alone and they
are the ancestral properties belonging to the family of the
defendant. The defendant's wife and his minor children filed a suit
for partition in O.S. No.109/1999 before the District Munsif,
Tiruchengode and a preliminary decree for partition was also
passed in respect of the suit properties on 13.10.1999.
3) An application for passing of final decree for partition is pending.
4) The defendant borrowed a sum of Rs.75,000/- from the plaintiff
and executed a sale agreement (Ex.A1) as a security for the said
loan transaction.
5) Since the period mentioned in Ex.A1 expired on 22.08.1997, the
defendant made an endorsement on 20.08.1997 (Ex.A2) extending
the period by 3 years.
6) Though the defendant prayed time to repay the loan amount of
Rs.75,000/-, the plaintiff, in order to grab the suit properties, had
filed the present suit and hence the suit is liable to be dismissed.
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5. On the basis of the above pleadings, the trial court framed
appropriate issues and after full contest dismissed the suit filed by the
plaintiff vide its decree and judgment dated 29.11.2008 on the following
grounds:
1) The sale agreement dated 22.08.1994 (Ex.A1) was executed only
as a security for the loan transaction between the plaintiff and the
defendant.
2) The suit properties are the ancestral properties of the family of the
defendant as is seen from the suit in O.S. No.109 of 1999.
3) The plaintiff has not also proved the execution of Ex.A1 that it was
intended for selling the suit properties in her favour.
The trial court, therefore, directed the defendant to pay the advance
amount of Rs.75,000/- to the plaintiff together with interest @ 9% per
annum from the date of suit till the date of decree and thereafter @ 6%
till the date of realisation.
6. Aggrieved over the same, the plaintiff preferred an appeal in
A.S. No.45 of 2010 before the Principal District Court, Namakkal. The
learned Principal District Judge, allowed the appeal and set aside the
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S.A.No.1289 of 2011
decree and judgment of the trial court vide his decree and judgment dated
20.07.2011 on the ground that since the sale agreement Ex.A1 is a
registered document, the parties cannot be allowed to let in evidence to
vary/alter the contract as it is hit under Sections 91 and 92 of the Indian
Evidence Act. The first appellate court, therefore, decreed the suit filed
by the plaintiff.
7. Now the present second appeal is filed on the following
substantial questions of law:
1) Whether the first appellate court committed a wrong in rejecting
the evidence of D.W.1 and D.W.2 particularly when the defendant
is legally entitled to let in oral evidence to controvert the written
document since the suit document was executed altogether for a
different purpose?
2) Whether an adverse interference ought to be drawn against the
plaintiff on account of non examination of her husband, witnesses
and scribe to Ex.A1 to justify the nature of the transaction?
3) Whether the suit is barred by limitation in view of the specific
recital and default clause in the suit document?
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S.A.No.1289 of 2011
8. Heard Mr. N. Manokaran, learned counsel for the appellant
and Mr.D. Rajagopal, learned counsel for the respondent.
9. Mr. N. Manokaran, learned counsel for the appellant
contended that though the plaintiff did not prove that she was all along
ready and willing to perform her part of the contract as mandated under
Section 16(c) of the Specific Relief Act, the first Appellate Court was
wrong in decreeing the suit in favour of the plaintiff merely on the ground
that the agreement of sale is registered. It is also his contention that if
really the parties had agreed to enter into a sale agreement for the purpose
of conveyance of the suit properties and the balance sum remaining to be
paid is only Rs.25,000/-, there is no need on the part of the parties to fix
an outer time limit of 3 years for completing the sale transaction. He
relied on the decision in P. Selvaraj Vs. R.Gopal reported in 2019 (3)
CTC 679 in this regard. According to him, the reason for extending
further 3 year period has not been properly explained by the plaintiff and
there was no discussion on this aspect by the first Appellate Court. It is
his contention that the defendant cannot be precluded from taking a plea
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S.A.No.1289 of 2011
that the sale agreement Ex.A1 was not intended to be acted upon as an
agreement of sale, but it was executed for some other purpose namely as
a security for a loan transaction and such a plea would fall within the
exception under Section 92 of the Indian Evidence Act and the defendant
is not attempting to vary the terms of the contract. He would therefore
contend that the first Appellate Court was totally wrong in decreeing the
suit in favour of the plaintiff on the sole ground that Ex.A1 sale
agreement is a registered instrument and that the defendant cannot be
permitted to adduce evidence to vary the terms of the contract as per
Section 92 of the Indian Evidence Act. He also cited several decisions to
show that the plaintiff did not prove her readiness and willingness for
purchasing the suit properties and that Ex.A1 was never intended for
selling the suit properties.
10. Per contra learned counsel for the respondent/plaintiff
contended that
1) the defendant in his written statement had admitted the execution
of the sale agreement Ex.A1 and also the endorsement (Ex.A2)
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S.A.No.1289 of 2011
made for the extension of time for further period of three years.
2) Having admitted the execution of Ex.A1 and Ex.A2, it is not open
to the defendant to contend that the sale agreement Ex.A1 was
executed only as a security for the loan transaction between him
and the plaintiff.
3) It is also his contention that since the defendant expressed his
inability to execute the sale deed, he made an endorsement Ex.A2
on Ex.A1 and the recitals in Ex.A2 would clearly prove the same
and that therefore, the defendant cannot say that the plaintiff was
not ready and willing to perform her part of the contract.
4) According to him, the decree passed in O.S. No.109 of 1999 on the
file of the District Munsif, Tiruchengode, is only an exparte decree
and based on that alone, it cannot be held that the suit properties
are not the exclusive properties of the appellant/defendant.
5) The trial Court ignored the admissions made by the defendant in
his written statement and held that the execution of Ex.A1 sale
agreement has not been proved by the plaintiff.
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6) The lower appellate Court had elaborately considered the pleadings
as well as oral / documentary evidence and had concluded that the
properties covered under Ex.A1 were not intended for the purpose
of loan transaction and therefore, the same cannot be set aside by
this Court.
7) As regards the limitation raised in the present appeal, it is relevant
to mention that there was no specific issue as to whether the suit
was barred by limitation either in the trial Court or in the first
appellate Court.
8) The Hon'ble Supreme Court in numerous judgments had held that
the readiness and willingness can be inferred from the pleadings
and that since the plaintiff has paid 75% of the sale transaction, it
can be easily inferred that she was always ready and willing to
perform her part of the contract.
Therefore, he prayed for the dismissal of the present second appeal.
11. At the outset, it may be observed that the defendant
admitted in his written statement the execution of Ex.A1 and Ex.A2 in
favour of the plaintiff. His only contention is that Ex.A1 was made only
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S.A.No.1289 of 2011
as a security for the loan transaction between him and the plaintiff. The
trial Court after analysing the oral / documentary evidence held that
Ex.A1 was not executed for the purpose of selling the suit properties in
favour of the plaintiff and that the plaintiff has not also proved that Ex.A1
is true and valid. The trial Court did not render any finding whether the
plaintiff was always ready and willing to perform her part of the contract
though a specific issue was framed in this regard.
12. The first appellate Court also did not render any finding
with regard to the readiness and willingness on the part of the plaintiff
and decreed the suit merely based on the fact that Ex.A1 is a registered
document and the defendant cannot be permitted to vary the contract as it
is hit by Section 92 of the Indian Evidence Act. The first appellate Court
also did not frame points for determination as mandated under Order XLI
Rule 31 of the Code of Civil Procedure. It is settled principles of law that
right to file the first appeal against the decree under Section 96 of the
Code of Civil Procedure is a valuable legal right of the litigant. The
jurisdiction of the first appellate Court while hearing the first appeal is
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S.A.No.1289 of 2011
very wide like that of the trial Court and it is open to the appellant to
attack all the findings of fact / law in the first appeal. It is the duty of the
first appellate Court to appreciate the entire evidence and may come to a
different conclusion from that of the trial Court. While reversing the
finding of fact, the first appellate Court must come into close quarters
with the reasonings assigned by the trial Court and then assign its own
reasons for arriving at a different finding. In Kurian Chacko Vs Varkey
Ouseph reported in AIR 1969 Kerala 316, Justice V.R.Krishna Iyer (as
he then was the judge of the Kerala High Court), while deciding the first
appeal under Section 96 of the Code of Civil Procedure, reminded the
first appellate Court of its duty as to how the first appeal under Section
96 of the Indian Evidence Act, should be decided. The learned judge held
as under :
"The plaintiff unsuccessful in two courts, has come up here
aggrieved by the dismissal of the suit which was one for
declaration of title and recovery of possession. The defendant
disputed the plaintiff's title to the property as also his possession
and claimed both in himself. The learned Munsif, who tried the suit
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recorded findings against the plaintiff both on title and possession.
In an appeal, the learned Subordinate Judge disposed of the whole
matter glibly and briefly, in a few sentence".
13. In the following decisions of Hon'ble Supreme Court it has
been clearly held that the judgment of the first appellate Court must
reflect its conscious application of mind on all the issues arising along
with the contentions putforth and prayed by the parties for decision of the
appellate Court while reversing a finding of fact and it is the duty of the
first appellate Court to deal with all the issues.
1) Shasidhar & Others vs. Smt. Ashwini Uma Mathad reported in
2015 (AIR) SCW 777.
2) Santosh Hazari vs. Purushottam Tiwari (deceased by LRS)
reported in (2001) 3 SCC 179.
3) B.V. Nagesh and another vs. H.V. Srinivasa Murthy reported in
(2010) 13 SCC 530
4) Vinod Kumar vs. Gangadhar reported in (2014) 12 SCALE 171
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S.A.No.1289 of 2011
14. In the instant case, the first appellate Court has not at all
adverted to the reasonings accorded by the trial Court while reversing the
judgment. It is also settled principles of law that the defendant cannot be
precluded from taking a plea that the agreement was not intended to be
acted upon as an agreement of sale but it was executed for some other
purpose, namely, as a security for a loan transaction and such a plea
would fall within the exception under Section 92 of the Indian Evidence
Act. This settled principle of law has been ignored by the first appellate
Court and had merely held that the defendant cannot be permitted to vary
the terms of contract as it is hit under Section 92 of the Indian Evidence
Act. As already observed, both the Courts below did not render any
finding with regard to the readiness and willingness on the part of the
plaintiff in performing her part of the contract and the first appellate
Court also did not frame separate points for determination as envisaged
under Order XLI Rule 31 of the Code of Civil Procedure.
15. In view of the afore stated exposition of law, the decree and
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judgment passed by the first appellate Court cannot be sustained and
therefore it has got to be set aside. The case is remitted back to the first
appellate Court for deciding afresh. The parties through their counsels are
directed to appear before the Principal District Judge, Namakkal, on
25.04.2022. Since the suit was filed in the year 2002, the first appellate
Court is required to decide the same as expeditiously as possible and in
any event not later than six months from the date of 25.04.2022.
16. With the above observations, this second appeal is disposed
of. No costs. Consequently, connected miscellaneous petitions are closed.
31.03.2022
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
bga
Note: Issue Order copy today
To
1. The Principal District Judge, Namakkal.
2. The Subordinate Court, Tiruchengode.
3. The Section Officer, VR Section, High Court, Madras.
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S.A.No.1289 of 2011
R. HEMALATHA, J.
bga
S.A.No.1289 of 2011
and M.P. Nos.1 of 2011 & 1 of 2012
31.03.2022
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