Madras High Court
C.Sarvanan vs Mrs.V.Kamakshi on 14 September, 2022
S.A.No.536 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 14.09.2022
CORAM
THE HONOURABLE Ms. JUSTICE P.T. ASHA
S.A.No.536 of 2022
and
C.M.P.No.10816 of 2022
1.C.Sarvanan
2.Mrs.S.Shanthi
3.Mrs.R.Sangamithra
... Appellants/Respondents/Defendants 2 to 5
Vs.
1.Mrs.V.Kamakshi
2.C.Madhivanan
3.C.Anandanayaki
... Respondents /Appellants/Plaintiffs 2 to 5.
PRAYER: Second Appeal filed under Section 100 of the Code of Civil
Procedure against the Judgement and Decree dated 06.03.2020 rendered in
A.S.No.27 of 2016 on the file of the learned II Additional District Judge,
Ranipet, Vellore District, reversing the decree and the judgement date
23.06.2016 rendered in O.S.No.415 of 2014 on the file of the Sub Judge,
Arakonam, Vellore District.
For Appellant : Mr.D.Vijayan
1/8
https://www.mhc.tn.gov.in/judis
S.A.No.536 of 2022
JUDGMENT
The defendants/legal representatives of the deceased defendants are
the appellants before this Court, challenging the Judgement and Decree in
A.S.No.27 of 2016 on the file of the II Additional District Court, Vellore at
Ranipet in and by which the Judgement and Decree of the Sub Judge,
Arakonam in O.S.No.415 of 2014 was reversed.
2. The suit in question is one for specific performance and for ease of
understanding the parties are referred to in the same litigative status as
before the Trial Court.
3. The plaintiffs had filed the above suit stating that the suit schedule
properties belonged to defendants 1 to 3 and they had agreed to sell the
properties to the plaintiff. It was defendants 1 and 2 who had executed the
registered sale agreement dated 18.12.2006 in and by which they had agreed
to sell the suit schedule property for a total sale consideration of a sum of
Rs.5,00,000/-. On the date of the agreement a sum of Rs.100,000/- was paid
as an advance. They had agreed to register the sale deed in favour of the
plaintiff after receiving the balance sale consideration of Rs.4,00,000/- on
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S.A.No.536 of 2022
or before 17.07.2007. The 3rd defendant had affixed her thumb impression
as a witness after knowing the contents of the agreement. The plaintiff
would submit that though he was ready and willing to proceed with the
agreement by paying the balance sale consideration, the defendants 1 and 2
were refusing to receive the balance sale consideration and execute the sale
deed.
4. Pending the suit, the 1st defendant had died and the defendants 3rd
to 5th were brought on record as his legal representatives. The 1st
defendant had sold some of the ancestral properties to one Muniammal
under a registered sale deed dated 20.03.1986 and some others to one
N.Mani son of Natarajan under sale deed dated 18.06.1998. The defendants
had not made any objection to the transaction entered into by them with the
plaintiff. Since the defendants were not coming forward to execute the sale
deed, the plaintiff was left with no other alternative except to file the suit.
5. The 1st defendant had filed a written statement which was adopted
by the 2nd defendant in which it was contended that the suit property is the
ancestral property and not the self-acquired property of the 1st defendant
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S.A.No.536 of 2022
who had two wives one Padmavathi, the 3rd defendant and one Kamachee.
The two wives were sisters and both of them are alive. Padmavathi did not
have any issues and therefore the 1st defendant had married Kamachee. The
defendants 2, 4 and 5 are born to the 1st defendant through Kamachee.
Therefore, it is the contention of the defendants that defendants 1 and 2
alone could not have entered into an agreement of sale as there is no
partition between them. Further though the plaintiff was aware that the 3rd
defendant was also the owner of the property he had not taken any steps to
obtain the sale agreement from her. They would further submit that a
subsequent agreement on 18.12.2006 was also executed which was an
unregistered agreement where the total sale consideration was shown as
Rs.6,33,000/-.
6. The Trial Court on considering the evidence on record proceeded
to dismiss the suit. Challenging the same the defendants had filed
A.S.No.27 of 2016 on the file of the II Additional District Judge, Vellore at
Ranipet. The learned District Judge reversed the Judgement and Decree of
the Trial Court.
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S.A.No.536 of 2022
7. The learned Judge had held that although the defendants had stated
that the Padmavathi Ammal, the 3rd defendant was also the owner of the
suit property, they had not produced any documents to show her ownership.
That apart, despite her being impleaded as the 3rd defendant she had not
entered the box to adduce evidence. Further, defendants 2 to 5 are born to
the 2nd wife and therefore cannot claim a share in the ancestral property.
8. The defendants had, during the arguments, set out a claim that the
money was handed over as a loan, however, no documents have been filed
to support the same. The learned Judge had held that the defendant had not
come forward to prove their case and on the contrary had in cross
examination admitted the case of the plaintiff. Aggrieved by the same the
defendants are before this Court.
9. The case of the defendants/appellants is that the property in
question is an ancestral property and Padmavathi Ammal also has a share in
the same. However, Ex.A.1 sale deed has been obtained only from
defendants 1 and 2. The defendants would further contend that the parties
had not entered into an agreement of sale but only offered the document as a
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S.A.No.536 of 2022
security for the loan. The lower Appellate Court on considering the
evidence has held that there is no evidence to show that Padmavathi Ammal
was also an owner of the suit schedule property. Further, despite being
made a party to the proceedings Padmavathi Ammal has not chosen to enter
the witness box to refute the claim of the plaintiff. That apart, no proof
whatsoever has been let in by the defendants to show that they had
borrowed from the plaintiff and the agreement of sale had been offered as a
security. The unregistered sale agreement which has been produced on the
side of the defendants as Ex.B.1 which is of the same date as the sale
agreement Ex.A.1 was said to be a fraudulent document by P.W.1.
10. This Court is inclined to accept the said statement since on
18.12.2006 when the plaintiff has entered into a registered agreement of
sale with reference to the same property for a lesser value, it is rather
strange that on the very same day he would execute a sale agreement for a
higher amount. Therefore, the defense raised by the defendant that
Padmavathi is also the owner of the suit schedule property, the amount was
only a hand loan and not an advance for the purchase property and that there
were two agreements stand unproved by the defendants. During the cross
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S.A.No.536 of 2022
examination it is also seen that the defendant has come froward with a new
version that he did not know that he was executing an agreement of sale
which contention does not find place in his written statement. Since the
execution of the sale agreement, Ex.A.1 has been admitted by the
defendants and as the defendants have not been able to prove their case, the
lower Appellate Court has rightly reversed the Judgement and Decree of the
Trial Court giving reasons. The appellant has not been able to show that this
Judgement and Decree under appeal suffers from a perversity and further no
substantial question of law has been made out. Therefore, the Second
Appeal stands dismissed. No costs. Consequently, the connected Civil
Miscellaneous Petition is closed, if any.
14.09.2022
Index : Yes/No
Internet : Yes/No
shr
To
1.The II Additional District Judge, Ranipet, Vellore District.
2.The Sub Judge, Arakonam, Vellore District.
https://www.mhc.tn.gov.in/judis
S.A.No.536 of 2022
P.T. ASHA, J,
shr
S.A.No.536 of 2022
and
C.M.P.No.10816 of 2022
14.09.2022
https://www.mhc.tn.gov.in/judis
