Madras High Court
Venkatasamy (Died) vs Kalia Perumal on 16 June, 2023
S.A.No.81 of 2002
and C.M.P.No.522 of 2002
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 16.06.2023
CORAM
THE HONOURABLE MRS. JUSTICE R.HEMALATHA
S.A.No.81 of 2002
and C.M.P.No.522 of 2002
Venkatasamy (Died)
2.Marimuthu
3.Sarabalan
4.Sumathi
5.Malarvizhi
6.Muthamizh ...Appellants
Vs.
1.Kalia Perumal
2.Jayamurthy
3.Kannan
4.Suseela ... Respondents
(Appellants 2 to 6 brought on records as LRs of the deceased sole
appellant vide order of Court dated 20.02.2023 made in
C.M.P.Nos.2381, 2382 & 2385/2020 in S.A.No.81/2002)
Prayer : Second Appeal filed under Section 100 CPC, 1908 against the
decree and judgment dated 06.07.2001 passed in A.S. No.67 of 1993, on
the file of the Principal Sub Court, Villupuram, upholding the decree and
judgment dated 13.02.1992 passed in O.S. No.1351 of 1984, on the file
Page 1 of 15
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
of the Additional District Munsif, Villupuram.
For Appellants : Mr. T.S.Baskaran
For RR1 to 3 : Mr. M.Krishnappan, Sr. Counsel
for Mr.S.Ravichandran
JUDGMENT
The second defendant (since deceased) who failed before both
the courts below has filed this present Second Appeal.
2. During the pendency of the second appeal the appellant died
and therefore, his legal heirs were impleaded as appellants 2 to 6. One
Duraisamy Gounder (since deceased) filed the suit in O.S. No.1351 of
1984, before the Additional District Munsif, Villupuram, for specific
performance of contract dated 05.06.1984 between him and the first
defendant (Meenambal Ammal) or in the alterative directing the second
defendant to pay a sum of Rs.6,000/- to him towards compensation. The
suit was decreed by the learned District Munsif, Villupuram, vide his
decree and judgment dated 13.02.1992, as against which the second
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
defendant (Venkatasamy) who is the purchaser of the suit property from
the first defendant, Meenambal Ammal filed an appeal in A.S. No.67 of
1993, on the file of the Principal Sub Court, Villupuram. During the
pendency of the first appeal the plaintiff, Duraisamy Gounder died and
his legal heirs were impleaded as respondents 1 to 3 in the present second
appeal. The first respondent ( Meenambal Ammal ) also died and her
legal heir is the fourth respondent.
3. 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.
4. The brief facts of the case of the plaintiff are as follows:
The suit property originally belonged to the first
defendant/Meenambal Ammal. On 05.06.1984, Meenambal Ammal
offered to sell the suit property in favour of the plaintiff for sale
consideration of Rs.6,277.50/-. They entered into a sale agreement
(Ex.A1) on the same day. A sum of Rs.1,000/- was paid by the plaintiff
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
towards advance. The time for performance of contract was fixed as three
months. The first defendant did not come forward to receive the balance
sale consideration from the plaintiff and to execute the sale deed in his
favour. On the contrary, she executed a sale deed dated 30.06.1984
(Ex.B1) in favour of the second defendant in respect of the suit property.
The plaintiff issued a lawyer's notice dated 22.07.1984 (Ex.A2) to both
the defendants. In the said notice, the plaintiff had specifically contended
that the sale in favour of the second defendant is not bonafide. The first
defendant did not send any reply notice. On the contrary, the second
defendant issued a reply notice dated 25.07.1984 (Ex.A3) which
contained false allegations. The sale deed in favour of the second
defendant was created only to defeat the lawful claim of the plaintiff and
hence, the suit for specific performance of contract or in the alternative
directing defendants to pay a sum of Rs.6,000/- towards compensation.
The first defendant remained absent before both the Courts below.
5. The suit was resisted by the second defendant on the
following grounds.
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
i. All the allegations contained in the plaint are false.
ii. There was no agreement of sale in existence on the date when the
first defendant sold the suit property in favour of the second
defendant.
iii. Even if the agreement is true it should have been created
subsequent to the sale in favour of the second defendant by
antedating the same. In any event, the plaintiff has not performed
his part of the contract as he has not deposited the balance sale
consideration in to Court. He therefore, prayed for dismissal of the
suit.
6. On the basis of the above pleadings, the trial Court framed
the following issues :
i. "Whether the sale agreement dated 05.06.1984 is true and valid?
ii. Whether the second defendant is a bonafide purchaser for value?
iii. Whether the plaintiff is entitled for a decree as prayed for by him?
iv. To what relief, the plaintiff is entitled?"
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
7. In the trial Court, the plaintiff examined himself and two
other witnesses and marked Ex.A1 to Ex.A3. The second defendant
examined himself and marked Ex.B1.
8. After full contest, the learned Additional District Munsif,
Villupuram decreed the suit vide his decree and judgment dated
13.02.1992 filed by the plaintiff on the following grounds :
i. Thiru.Rajendran (PW3) had deposed the sale agreement dated
05.06.1984 (Ex.A1) was executed and that the husband of the first
defendant and one Dhanapal Gounder attested the said agreement.
His evidence is trustworthy. The discrepancies found in the
evidence of PW1 & PW3 are all minor in nature and do not go into
the root of the case. Moreover, DW1 (second defendant) had
admitted that there is no prior enmity between him and PW3. The
second defendant (DW1) also did not examine the husband of his
vendor (first defendant) as a witness.
ii. PW2 (Thiru.Venkatasamy Reddiar) in his deposition had
contended that there was a panchayat in the village between the
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
plaintiff and the defendants 1 & 2 in respect of the suit property in
which the second defendant agreed to pay a sum of Rs.3,000/-
towards compensation to the plaintiff and that though PW2
received the said amount from the second defendant, the plaintiff
refused to receive the same. Since the second defendant knew the
existence of the sale agreement between the plaintiff and the first
defendant prior to his sale deed, he cannot be said to be a bonafide
purchaser for value.
9. Aggrieved over the decree and judgment passed by the trial
Court Judge, the second defendant filed an appeal in A.S. No.67 of 1993,
on the file of the Principal Sub Court, Villupuram. The learned Principal
Subordinate Judge, Villupuram, after analysing the oral and documentary
evidence adduced on both sides upheld the findings of the trial court vide
his decree and judgment dated 06.07.2001.
10. Now the present Second Appeal is filed by the second
defendant and the following substantial questions of law were framed by
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
my learned predecessor.
i. "Whether the Courts below were correct in holding that the second
defendant was not a bonafide purchaser for value without notice
when there was absolutely no evidence to show that he was put on
notice about the suit agreement prior to his sale under Ex.B1?
ii. Whether the Courts below erred in not appreciating the
contradictions with reference to the recitals in Ex.A1 and evidenc
of PW1 which goes to show that the claim of the plaintiff was
false?
11. Heard Mr.T.S.Baskaran, learned counsel for the appellants
and Mr.M.Krishnappan, learned senior counsel assisted by
Mr.S.Ravichandran, counsel for the respondents 1 to 3.
12. Mr.T.S.Baskaran, learned counsel for the appellants
contended that both the courts below committed an error by holding that
(a) the sale agreement (Ex.A1) is true and valid.
(b) The second defendant is not a bonafide purchaser for value.
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
(c) The second defendant knew the existence of the sale agreement
(Ex.A1) prior to his sale deed (Ex.B1).
He drew the attention of this Court to the judgment of the First Appellate
Court wherein the First Appellate Court had mainly relied on the evidence
of PW2 who had deposed that there was a panchayat between the
plaintiff and the defendants 1 & 2 in the village and that in the panchayat,
it was agreed between the parties that the second defendant should pay a
compensation of Rs.3,000/- to the plaintiff. He had further deposed that
though he received the said amount from the second defendant, the
plaintiff (PW1) refused to receive the same. The learned counsel's specific
contention is that when there are no pleadings with regard to the
panchayat in the plaint, both the Courts below had mainly based on the
evidence of PW2, had held that the second defendant is not a bonafide
purchaser for value as he already knew the existence of Ex.A1 by
participating in the panchayat. Even if it is admitted, for the sake of
arguments, that there was a panchayat in the village and the plaintiff
agreed to received Rs.3,000/- towards compensation from the second
defendant, the whole case of the plaintiff for specific performance of
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
contract fails as he was not ready and willing to perform his part of the
contract.
13. Per contra, Mr.M.Krishnappan, learned senior counsel for
the respondents 1 to 3 contended that both the courts below, after
analysing the oral and documentary evidence adduced on both sides had
decreed the suit in favour of the plaintiff and as per Section 100 CPC this
Court cannot interfere with the findings of facts recorded by both the
Courts below unless they are perverse. He therefore, prayed for dismissal
of the present second appeal.
14. At the outset, it may be observed that the plaintiff has filed
the suit for specific performance of contract or in the alternative to pay a
sum of Rs.6,000/- towards compensation by the defendants 1 & 2. His
specific contention is that the first defendant, Meenambal Ammal
executed a sale agreement dated 05.06.1984 (Ex.A1) agreeing to sell the
suit property in his favour and also received a sum of Rs.1,000/- from
him towards advance. The time for performance of contract was fixed as
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
three months and that though he was always ready and willing to perform
his part of the contract, the defendant was evading and subsequently, the
latter sold the suit property in favour of the second defendant on
30.06.1984. Thereafter, the plaintiff issued a notice to the defendants 1 &
2 and the first defendant did not send any reply to the plaintiff. The
second defendant had issued a reply notice and contended that he is a
bonafide purchaser for value and also contended that the sale agreement
between the plaintiff and the first defendant is not genuine.
15. In order to prove the execution of the sale agreement the
plaintiff relied on his evidence as well as the evidence of the scribe
Venkatasamy Reddiar (PW2). It is pertinent to point out that the first
defendant who is said to have executed the sale agreement (Ex.A1)
remained absent and was set ex parte. Her husband is one of the attestors
to Ex.A1. While, sale agreement is dated 05.06.1984 and the time fixed
for completing the contract was three months, the first defendant had sold
the suit property in favour of the second defendant through a registered
sale deed dated 30.06.1984 (Ex.B1). The second defendant in his written
statement as well as in his oral evidence had contended that he is a
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
bonafide purchaser for value and that the sale agreement (Ex.A1) has
been created for the purpose of filing the present suit. Both the Courts
below had held that the sale agreement (Ex.A1) is true and valid and that
the second defendant is not a bonafide purchaser for value. For arriving at
this conclusion, both the Courts below had mainly relied on the evidence
of Venkatasamy Reddiar (PW2) who had deposed that there was a
panchayat in the village between the plaintiff and the defendants 1 & 2 in
which the plaintiff agreed to receive a sum of Rs.3,000/- towards
compensation from the defendants 1 & 2. During the course of cross
examination, PW2 had admitted that the plaintiff agreed to receive the
compensation as per the decision of the panchayat and that he (PW2)
received the said amount from the second defendant. His further
deposition is that when he handed over the same to the plaintiff, the
plaintiff refused to receive the said amount. Merely based on the evidence
of PW2, both the Courts below had concurrently and wrongly held that
the second defendant already knew the sale agreement between the
plaintiff and the first defendant. It is also intriguing to note that there is
absolutely no pleadings in the plaint with regard to the panchayat
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
between the plaintiff and the defendants 1 & 2. It is settled position of
law that no amount of oral evidence can be looked into in the absence of a
specific pleading. The trial Court had not only recorded the evidence
without pleadings in the plaint, but also relied upon the same and held
that the second defendant already knew the existence of the sale
agreement between the plaintiff and the first defendant through the said
panchayat and therefore, he cannot be termed as a bonafide purchaser for
value. This observation of the trial Court was upheld by the First
Appellate Court. Even assuming that there was a panchayat as contended
by PW2 between the plaintiff and the defendants 1 & 2 and that in the
panchayat it was agreed between the parties that the defendants 1 & 2
should pay the compensation of Rs.3,000/- to the plaintiff and the
plaintiff agreed to receive the same, the plaintiff now cannot contend that
he was ready and willing to perform his part of the contract. The property
has been sold out in the year 1984 through a registered sale deed dated
30.06.1984 (Ex.B1) by the first defendant in favour of the second
defendant. The approach made by both the Courts below in analysing the
oral and documentary evidence is totally perverse and therefore, the same
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
warrant interference by this Court. Moreover, there are contradictions
with regard to the recitals in Ex.A1 and the evidence of PW1 and this
aspect has not at all been looked into by both the Courts below. In view
of the same, substantial questions of law 1 & 2 are answered in favour of
the appellants and therefore, the appeal is allowed.
16. In the result,
i. the Second Appeal is allowed. No costs. Consequently, connected
Civil Miscellaneous Petition is closed.
ii. The decree and judgment dated 06.07.2001 passed in A.S. No.67
of 1993, on the file of the Principal Sub Court, Villupuram, is set
aside.
iii. The suit in O.S. No.1351 of 1984, on the file of the Additional
District Munsif, Villupuram, is dismissed with costs.
16.06.2023
Index: Yes/No
Internet: Yes/No
Speaking/Non-Speaking order
mtl
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S.A.No.81 of 2002
and C.M.P.No.522 of 2002
R. HEMALATHA, J.
mtl
To
1. The Principal Sub Court, Villupuram.
2. The Additional District Munsif, Villupuram.
3. The Section Officer, VR Section, High Court, Madras.
S.A.No.81 of 2002
and C.M.P.No.522 of 2002
16.06.2023
https://www.mhc.tn.gov.in/judis
