Madras High Court
Santhanakrishnan(Died) vs P.Sukumar on 22 December, 2023
S.A(MD).No.763 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 22.12.2023
CORAM:
THE HONOURABLE MRS.JUSTICE R. KALAIMATHI
S.A(MD).No.763 of 2011
and M.P(MD).No.1 of 2011
Santhanakrishnan(Died) ...Appellant/Appellant/Defendant
2.Kamala
3.Balamani
4.Chitra
5.Shanthi
6.Rajesh Kanna
7.Subbiah ...LRs of the deceased first appellant
(*A2 to A7 are brought on record as LRs of the
deceased sole appellant made in M.P(MD).No.1
of 2014 in S.A(MD).No.763 of 2011 vide order
dated 17.02.2015*)
-Vs-
P.Sukumar ... Respondent/Respondent/Plaintiff
1/14
https://www.mhc.tn.gov.in/judis
S.A(MD).No.763 of 2011
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure to set aside the judgment and decree dated 18.02.2011 made in
A.S.No.216 of 2007 on the file of the Additional Subordinate Court, Dindigul,
confirming the judgment and decree dated 29.06.2005 made in
O.S.No.179 of 2004 on the file of the District Munsif cum Judicial Magistrate,
Vedasandur.
For Appellants : M/s.J.Maria Roseline
For Respondent :Mr.T.R.Subramanian
JUDGMENT
Aggrieved by the concurrent findings of the trial Court as well as the First
Appellate Court, the legal heirs of the deceased defendant has preferred this
second appeal.
2. The parties are referred to as per their litigative status and ranking
shown before the trial Court.
3. According to the plaintiff, the suit properties [3 in numbers] are the
self-acquired properties of the defendant as he purchased the same as per the
sale deed dated 05.03.1976. The defendant as the owner of the properties
https://www.mhc.tn.gov.in/judis
agreed to sell the same to the plaintiff for a sale consideration of Rs.99,000/-
(Rupees Ninety Nine Thousand only) and executed a sale agreement on
16.10.1991 by receiving an advance amount of Rs.60,000/- (Rupees Sixty
Thousand only) and handed over the possession to the plaintiff with title deeds.
The plaintiff further claims that the performance period is fixed as 5 years from
16.10.1991. The plaintiff has been throughout willing and ready to perform his
part of contract and ready to pay the balance sale price and get the sale deed
executed from the defendant. The plaintiff all along has been demanding the
defendant which was evaded by the defendant. The plaintiff issued a pre-suit
notice on 04.10.1996 calling upon him to execute the sale deed after receiving
the balance sale price from him. Since no response from the defendant, hence,
the suit.
4. Whereas, the defendant would contend that he did not execute the sale
agreement. The plaintiff approached him for a loan of Rs.60,000/- (Rupees Sixty
Thousand only). It is only the plaintiff who stipulated that the defendant has to
execute the sale agreement and it was agreed upon that the properties will be
cultivated by the plaintiff and at the time of returning the amount, he would hand
over the possession of the suit properties. Based on the said conditions, the
https://www.mhc.tn.gov.in/judis
defendant executed the document for security purpose only for receipt of loan.
The plaintiff is a money lender and for the loan advanced, he used to get the
sale agreement even from the third parties. The defendant has further claimed
that for an amount of Rs.99,000/-, the plaintiff need not fix five year time. Had it
been a sale agreement, definitely the five year period would not have been fixed.
The plaintiff has executed more than 50 sale agreements in the past 5-6 years
before the Sub-Registrar Office, Vadamadurai. The defendant further claims that
during Ex-A2 period itself, the cost of one acre was Rs.3,00,000/- (Rupees
Three Lakhs only). The land is situated abutting Trichy-Dindigul National
Highways and the defendant is ready to repay the loan amount of Rs.60,000/-
(Rupees Sixty Thousand only).
5. Based on the rival pleadings, the trial Court framed the following issues:
(i) Whether the plaintiff is entitled for the relief of specific
performance?
(ii) Whether the defendant had intention to sell the
properties based on the sale agreement?
(iii) Whether the contention of the defendant that the sale
agreement was entered into for security purpose is correct or
https://www.mhc.tn.gov.in/judis
not?
(iv) What are all the other reliefs, the plaintiff is entitled
to?
6. At trial, on the plaintiff's side, the plaintiff and one Arjunan have been
examined as P.W.1 and P.W.2. Ex.A1 to Ex.A7 have been marked. On the
defendant's side, the defendant has examined himself as D.W.1 and the first
attesting witness in the suit sale agreement, Ayyakallai, was examined as D.W.2.
D.W.3 to D.W.5 are the persons who have executed the sale agreements in
favour of the plaintiff, Sugumar. Ex.B1 to Ex.B20 were marked.
7. The Trial Court concluded that as the defendant has admitted the
signature found in Ex.A2 and the sale agreement was executed as security for
the loan, was not found in the sale agreement and accepting the plaintiff's case,
decreed the suit in favour of the plaintiff.
8. Aggrieved, the defendant preferred the first appeal before the Additional
Sub-Court, Dindigul in A.S.No.216 of 2007. The First Appellate Court, after
https://www.mhc.tn.gov.in/judis
evaluating the evidence, held that as the plaintiff was willing to perform his part
of contract and the defendant has also admitted the signature found in the sale
agreement, the stand of the defendant that the sale agreement was executed for
security purpose was not accepted and in line of the trial Court, the First
Appellate Court also favoured the plaintiff and chose to dismiss the appeal.
9. Against the said concurrent findings, the defendant, who lost before
both the trial as well as the First Appellate Court, has preferred this second
appeal.
10. Ms.J.Maria Roseline, learned counsel appearing for the appellants
would strenuously argue that though the defendant admitted the execution of the
sale agreement, he never intended to sell his property for a meagre amount of
Rs.99,000/- (Rupees Ninety Nine Thousand). She would also draw the attention
of this Court that the extent of the suit properties is two acres and on the date of
sale agreement itself, 1 acre of land costs about Rs.3,00,000/-
(Rupees Three Lakhs only). She would stress upon the fact that the suit
properties situate abutting Dindigul-Trichy National Highways and at present, the
cost of the suit property per acre is above Rs.10,00,000/- (Rupees Ten
Lakhs only). She would also contend that Ex.B4 to Ex.B22 registered sale
https://www.mhc.tn.gov.in/judis
agreements would demonstrate the fact that there is a practice prevailing in
Vadamadurai Taluk that for security purpose, the sale agreement will be obtained
from the vendors. One such instance is Ex.A2.
11.The learned counsel appearing for the appellants,
M/s.J.Maria Roseline, referred to the following judgments in order to buttress her
arguments:
''(i) Tejram Vs. Patirambhau reported in AIR 1997 SCC
2702 was referred to in order to contend that the sale agreement
was entered into and an amount of Rs.48,000/- (Rupees Forty
Eight Thousand only) was received by the vendor for balance
consideration of Rs.2,000/-. After three years, the purchaser filed
the suit, that too, on the last date of agreement and the Hon'ble
Supreme Court concluded that the document purported to be
sale agreement cannot be treated as a sale agreement in truth.
(ii) Vallithai and others Vs. Arulraj reported in 2007 5MLJ
222, was referred to in order to contend that the evidence of the
defendant disclosed that he did not execute any sale agreement
and only mortgaged the property and there was no necessity for
the defendant to sell the property worth about Rs.2,00,000/- for a
https://www.mhc.tn.gov.in/judis
sum of Rs.35,000/- and it was concluded that the plaintiff has not
approached the Court with clean hands and the specific
performance relief was denied to the plaintiff.''
12. Per contra, Mr.T.R.Subramanian, the learned counsel appearing for
the respondent would vehemently argue that the execution of sale agreement
was admitted by the defendant and as the plaintiff is always willing and ready to
perform his part of the contract and within the time the suit was laid, the trial
Court as well as the first Appellate Court accepted the plaintiff's plea and
decreed the suit.
13. The following substantial questions of law arise for consideration:
(i) Whether the larger time limit for executing the sale and
a smaller balance consideration would show that the
transaction is a loan transaction?
(ii) Whether the discretion available under Section 20 of
the Specific Relief Act was not properly exercised by the trial
Court as well as the First Appellate Court?
https://www.mhc.tn.gov.in/judis
14. As per Section 16(c) of the Specific Relief Act, the plaintiff has to
plead and prove that he has been ready and willing to perform his part of the
contract. The defendant has admitted the due execution of sale agreement
[Ex.A2]. However, the defendant, while admitting the execution of sale
agreement, would stoutly contend that he obtained loan of Rs.60,000/- (Rupees
Sixty Thousand only) and only for security purpose, he executed a sale
agreement.
15. As the execution of sale agreement is admitted by the defendant, now
the crucial question as to whether as contended by the defendant, the sale
agreement was executed for security purpose is to be seen. These details were
not gone into both by the trial Court as well as the first Appellate Court.
16. The plaintiff has complied with the stipulations given in Section 16(c) of
the Special Relief Act as mentioned supra. Section 20 of the Specific Relief Act
deals with the discretion as to decreeing the specific performance. Section 20 of
the Specific Relief Act stipulates that if the terms of the contract give unfair
advantage to the plaintiff or if the performance of the contract would involve
hardship to the defendant, or if the contract is inequitable in nature, then the
Court may refuse to grant the relief of specific performance.
https://www.mhc.tn.gov.in/judis
17. D.W.3 to D.W.5 have been examined to the effect that the plaintiff
used to get the sale agreement executed even for advancing the loan and the
vendors have filed the sale agreements executed by them.
18. The relief sought for under Section 16(c) of the Specific Relief Act is an
equitable relief, for which, one should approach the Court with clean hands. The
defendant has explained in detail about the fact that he did not execute the sale
agreement with the intention to execute the sale deed and it was executed only
for security purpose for the loan advanced to him. D.W.2, Ayyakallai is the first
attesting witness in the suit sale agreement. He has deposed that in fact, the
defendant approached him for the loan and he, in turn, took the defendant to the
plaintiff and got the loan of Rs.60,000/- from the plaintiff. As per the demand of
the plaintiff, the sale agreement was executed by receiving the loan amount of
Rs.60,000/- by the defendant and he, in turn, handed over the possession of the
suit properties to the plaintiff for interest for the said amount.
19. Therefore, there is an absence of consensus ad idem which is
established through the examination of independent witness, D.W.2, Ayyakallai.
Moreover, with regard to the terms of the agreement, it is easily discernible that
https://www.mhc.tn.gov.in/judis
for a property situated along the National Highway and the less amount of sale
consideration also creates serious doubt about the veracity of the sale
agreement. Admittedly, the sale consideration is Rs.99,000/-. The defendant has
admitted to have received an amount of Rs.60,000/- from the plaintiff. For
receiving a paultry amount of Rs.39,000/-, five year period fixed itself indicates
the fact that the sale agreement is not intended to be acted upon as a sale
agreement and this Court is of the firm view that it was executed only as a
security for the loan transaction.
20. In Tejram Vs. Patirambhau reported in AIR 1997 SCC 2702, wherein
the substantial part of the sale consideration was acknowledged as an advance
under the sale agreement and there was no explanation for giving a few years
time for payment of the balance, the Hon'ble Apex Court concluded that the
agreement for sale was not purported to be a sale in truth and held that giving
unreasonably a longer time without proper reasons is a strong circumstance to
indicate that the sale agreement is not a real and accepted one and held that the
sale agreement was executed only as security for the loan transaction.
21. In Tyagaraja Mudaliyar vs.Vedathanni, reported in
AIR 1936 PC 70, the Privy Council held that an oral evidence in departure from
https://www.mhc.tn.gov.in/judis
the terms of a written deed is admissible to show that what is mentioned in the
deed was not the real transaction between the parties and it was something
different.
22. In this case, the defendant has admitted to have received a loan
amount of Rs.60,000/- from the plaintiff. Besides the same, he has taken hectic
steps not only explaining the circumstances under which the agreement for sale
came into existence can never be considered as a sale agreement. He has
established the fact that he never intended to execute the sale agreement for the
purpose of executing the sale deed.
23. For payment of Rs.39,000/-, fixing of five year period would amply
demonstrate the fact that it was not intended to be acted upon as a sale
agreement. The plaintiff himself has acceded in the plaint that on the date of
execution of sale agreement, the suit properties were handed over to him in lieu
of interest for the payment advanced.
24. Viewing from the aforesaid discussion, I have no hesitation to hold that
the plaintiff has not approached the trial Court with clean hands and the sale
agreement was executed only for security purpose and is not entitled to the relief
of specific performance, ultimately, the plaintiff has to be non-suited.
https://www.mhc.tn.gov.in/judis
25. In the result, the substantial questions of law are answered against the
plaintiff.
26. Based on the aforesaid discussion, the Second Appeal stands allowed.
The suit in O.S.No.179 of 2004 on the file of the District Munsif Cum Judicial
Magistrate, Vedasandur, stands dismissed. There is no order as to costs.
Connected miscellaneous petition is closed.
22.12.2023
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
ssb
To
1.The Additional Subordinate Court, Dindigul
2.The District Munsif cum Judicial Magistrate, Vedasandur
3.The Record Keeper,
V.R.Section, Madurai Bench of Madras High Court,Madurai.
https://www.mhc.tn.gov.in/judis
R. KALAIMATHI , J.,
ssb
22.12.2023
https://www.mhc.tn.gov.in/judis
