Madras High Court
N.Subramanian vs Bajina Begum on 23 January, 2023
S.A.No.34 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated : 23.01.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
S.A.No.34 of 2023
and
C.M.P.Nos.961 and 964 of 2023
N.Subramanian .... Appellant
Vs
1. Bajina Begum
2. Majiba Begum
3. Ummal Jupriya
represented by power agent
Ali Akbar
4. Ayusha Begum
represented by power agent
Ali Akbar
V.Anbarasu (Died)
5. A.Kala
6. A.Viswa .... Respondents
Prayer :- This Second Appeal is filed under Section 100 of Civil
Procedure Code to set aside the Judgment and Decree dated 02.06.2022
passed in A.S.No.7 of 2019 on the file of the Principal District Judge,
Tiruvarur by confirming the Judgment and Decree dated 24.01.2019
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Page 1 of 10
S.A.No.34 of 2023
passed in O.S.No.63 of 2010 on the file of the Subordinate Court,
Mannargudi.
For Appellant : Mr.K.M.Subramanian
For Respondents : Mr.S.Senthil
JUDGMENT
This second appeal is directed as the Judgment and Decree
dated 02.06.2022 passed in A.S.No.7 of 2019 on the file of the Principal
District Judge, Tiruvarur by confirming the Judgment and Decree dated
24.01.2019 passed in O.S.No.63 of 2010 on the file of the Subordinate
Court, Mannargudi, thereby dismissing the suit filed by the appellant for
specific performance.
2. The appellant is the plaintiff and the respondents are the
defendants in the suit filed for specific performance. The case of the
appellant is that the appellant and his father were cultivating the suit
properties as leaseholder and paid the paddy as lease as per their oral
agreement of lease. Their relationship was cordial, when the father of the
respondents was alive. After their father's demise, the appellant was in
possession and enjoyment of the suit property. Therefore, the
respondents had decided to sell the lease properties to the appellant and
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S.A.No.34 of 2023
executed sale agreement on 08.05.2006 on receipt of a sum of
Rs.1,02,000/- as advance. As per the sale agreement, Rs.120/- per kuzhi
for total extent of 64 maa land, total sale consideration was fixed at
Rs.8,88,000/. Both parties were to execute the sale deed, after receipt of
the balance sale consideration. However, though the appellant is always
ready and willing to register the sale deed and prepared to pay the entire
balance sale consideration, the respondents were not coming forward to
receive the balance sale consideration and failed to execute the sale deed.
Hence the suit.
3. Resisting the suit, the respondents filed their written
statement denying the very execution of sale agreement. Even assuming
that the agreement for sale was true and as per the agreement, the period
was specifically fixed as one year for payment of balance sale
consideration. The limitation ended on 31.01.2007 and as such, the suit
itself is barred by limitation. The appellant never showed any interest to
pay the balance sale consideration before the limitation of one year. The
appellant had issued legal notice only on 27.03.2010. Therefore, the
agreement for sale itself is barred by limitation.
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S.A.No.34 of 2023
4. On the side of the appellant, they had examined P.Ws.1
and 2 and marked Exs.P1 to P9. On the side of the respondent, they had
examined D.Ws.1 to 4 and marked Exs.D1 to D12.
5. On considering the oral and documentary evidences
adduced by the respective parties and the submission made by the learned
counsel, the trial Court dismissed the prayer of specific performance and
allowed the suit in respect of alternative prayer viz., to refund the
advance amount with interest. Aggrieved by the same, both the appellant
and the respondents filed separate appeal suit and both the appeals were
dismissed. Aggrieved by the same, the present second appeal.
6. The learned counsel for the appellant has raised the
following substantial questions of law:
a) Whether the delay can be construed on
the part of the appellant/plaintiff since the
respondents 1 to 4 used to stay in foreign
country for most of the time without coming
forward to execute the sale deed in favour of the
appellant/plaintiff and whether the suit has been
affected by period of limitation ?
b) Whether the sale agreement and
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S.A.No.34 of 2023
advance amounts paid by the appellant/plaintiff
and admitted in the Exhibit A-8 (reply notice of
the respondents 1 to 4 and the belated oral false
evidence can be believed as per the Evidence Act
?
c) Whether the suit can be rejected since
the respondents 1 to 4, the executors of the sale
agreement in favour of the appellant/plaintiff,
has been proved that they were not at all present
even for the court proceedings in the trial court
and that they have appointed their power agents
to act on their behalf in the suit since they are in
foreign countries and that the alleged fraudulent
sale deeds (exhibits B1 and B2) has been
executed in favour of respondents/defendants 5
and 6 through the power agents alone.
d) Whether the suit properties sold out to
the respondents/defendants 5 and 6 through
fraudulent sale deeds by the
respondents/defendants 1 to 4 through power
agents without having any recovery or
possession from the appellant/plaintiff and
whether the fraudulent sale deeds can be
construed as a valid sale under the Transfer of
Property Act ?
e) Whether the Courts below can
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S.A.No.34 of 2023
construed that the evidence of the D.Ws.1 to 3
and the documents of Exhibit B1 and B2 and
Exhibit A1 and A8 are genuine and trustworthy
to defeat the lawful claim of the
appellant/plaintiff in the suit, both readiness and
willingness and the limitation point under the
Specific Performance Act and the Limitation Act
under Article 54 ?
7. Heard, Mr.K.M.Subramanian the learned counsel
appearing for the appellant and Mr.S.Senthil, learned counsel appearing
for the respondents and perused the materials available on record.
8. The learned counsel appearing for the appellant would
submit that the appellant is in possession and enjoyment of the suit
property and as such, there is no question of the period of limitation.
Further, the appellant has right to purchase the property since he has
tenancy right over the suit property as he is cultivating the same. Even
before execution of agreement for sale on 08.05.2006, the suit properties
were leased out in favour of the appellant and cultivable tenancy
arrangement was also entered into between them. The respondents
received an advance on the execution of the agreement for sale dated
08.05.2006 for a sum of Rs.1,02,000/- and a sum of Rs.1,30,000/- on
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S.A.No.34 of 2023
26.01.2007. Thereafter, a sum of Rs.2,00,000/- was received on
16.06.2008. Therefore, the appellant paid a sum of Rs.4,32,000/- out of
total sale consideration of Rs.8,88,000/-.
9. A perusal of the records reveals that the alleged
agreement for sale was entered into between the parties on 08.05.2006,
which was marked as Ex.A1. After Ex.A1, the total sale consideration
was fixed for a sum of Rs.8,88,000/- in which on the date of agreement
for sale a sum of Rs.1,02,000/- as advance and subsequently part of the
sale consideration was received by the respondents. The time fixed as per
the agreement for sale is till 31.01.2007. It further reveals that on the
date of agreement for sale, the respondent received a sum of
Rs.1,02,000/- as advance and the balance sale consideration of
Rs.7,88,000/- has to be paid on or before 31.01.2007. Therefore, the
limitation starts from 31.01.2007. As per Article 54 of the Limitation
Act, it has to be seen that whether the appellant had proved his readiness
and willingness to perform his part of the contract. The appellant failed
to adduce any evidence in order to prove his readiness and willingness.
10. The appellant has also categorically admitted that he
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S.A.No.34 of 2023
informed the respondents only after three years and two months about the
execution of sale deed. That apart, the appellant had issued legal notice
only on 27.03.2010, which was marked as Ex.A6. There was no
document to show that in the intervening period, he had taken any steps
for execution of sale deed as per the recital of the agreement for sale.
Therefore, there is no evidence to prove the readiness and willingness of
the appellant to perform his part of the contract. Hence, the suit itself is
barred by limitation and hit by Article 54 of the Limitation Act. Though
the suit was hit by Article 54 of Limitation Act, the appellant is not
precluded by seeking the relief of refund of advance amount. Since for a
consequential prayer, Article 64 would apply and as such, the appellant
can very well maintain suit for alternative prayer.
11. As such the Courts below have analyzed the
evidences, both the documentary and oral in detail, adduced by the
parties and by giving cogent reasons, concluded rightly dismissed the suit
for specific performance and partly allowed the suit for repayment of
advance amount.. Accordingly, this Court is of the considered opinion
that no substantial question of law is involved in this appeal.
12. In view of above, this Second Appeal is dismissed and
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S.A.No.34 of 2023
the the Judgment and Decree dated 02.06.2022 passed in A.S.No.7 of
2019 on the file of the Principal District Judge, Tiruvarur, confirming the
Judgment and Decree dated 24.01.2019 passed in O.S.No.63 of 2010 on
the file of the Subordinate Court, Mannargudi, is confirmed.
Consequently, connected miscellaneous petitions are closed. There shall
be no order as to costs.
23.01.2023
Index : Yes/No
Internet : Yes/No
Speaking order/Non-speaking order
Lpp
To
1.The Principal District Judge, Tiruvarur
2. The Subordinate Judge, Mannargudi.
https://www.mhc.tn.gov.in/judis
S.A.No.34 of 2023
G.K.ILANTHIRAIYAN, J.
Lpp
S.A.No.34 of 2023
and
C.M.P.Nos.961 and 964 of 2023
23.01.2023
https://www.mhc.tn.gov.in/judis
