Madras High Court
Chellammal vs Mathivannan on 13 October, 2023
S.A.No.574 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 13.10.2023
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
S.A.No.574 of 2017
and C.M.P.Nos.14362 and 14416 of 2017
Chellammal ... Appellant
vs.
Mathivannan ... Respondent
PRAYER: Second Appeal is filed under Section 100 of Civil Procedure
Code, to set aside the Decree and Judgment passed in A.S.No.62 of 2012
dated 06.02.2014 on the file of III Addl District and Session Judge, Salem
confirming the Decree and Judgment passed in O.S.No.100 of 1997 dated
10.12.2011 on the file of Subordinate Judge at Athur.
For Appellant : Mrs.R.T.Sundari
M/s.D.Malarvizhi
For Respondent : Mr.L.Mouli
JUDGEMENT
The unsuccessful defendant in the suit for specific performance is the
appellant. The suit for specific performance of the Sale Agreement dated
21.07.1991 filed by the respondent/plaintiff was decreed by the Trial Court.
The first appeal filed by the appellant was also dismissed by the First
Appellate Court. As against the concurrent findings, the appellant/defendant
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S.A.No.574 of 2017
has come by way of this second appeal.
2. According to the respondent, the appellant herein was the original
owner of the suit property having purchased the same under the registered
Sale Deed dated 18.07.1990. The appellant entered into a Sale Agreement
with the respondent for purchase of the property covered by the Sale
Agreement dated 21.07.1991 for sale consideration of Rs.1,75,000/-. The
respondent paid an advance of Rs.1,60,000/- to the appellant. As per the
terms of agreement, the balance consideration of Rs.15,000/- shall be paid
within a period of two years from 21.07.1991. The possession of the subject
matter of agreement was also handed over to the respondent on the date of
agreement itself. The respondent carried out various developmental
activities in the suit property like deepening of the well and reclamation of
lands etc. Though the respondent was ready and willing to perform his part
of the contract, the appellant evaded performance of her part of the contract
and hence, a lawyer notice was issued by respondent on 08.09.1992 calling
upon the appellant to receive the balance sale consideration and execute the
sale deed. Inspite of receipt of said notice, the appellant failed to execute the
Sale Deed and hence, the respondent was constrained to file a suit for
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S.A.No.574 of 2017
specific performance of the Suit Sale Agreement.
3. The appellant herein filed a written statement and denied the very
execution of the suit sale agreement, receipt of advance amount etc. It was
also averred by the appellant that possession of the suit property was not
handed over to the respondent. The appellant also disputed the readiness
and willingness of the respondent. On these pleadings, the appellant sought
for dismissal of the suit.
4. Before the Trial Court, the respondent was examined as PW.1 and
scribe of the Suit Sale Agreement was examined as PW.2. On his behalf, 8
documents were marked as Exs.A1 to A8. The Power Agent of appellant
was examined as DW.1 and two attestors to the Suit Sale Agreement were
examined as DW.2 and DW.3. On behalf of the appellant, 3 documents were
marked as Exs.B1 to B3.
5. Since there was a dispute with regard to the signature of the
appellant found in the Sale Agreement, the signature of the appellant found
in the Sale Agreement was sent for the expert opinion for comparison with
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S.A.No.574 of 2017
the admitted signature of the appellant in Ex.C2. The report of the Forensic
Expert was marked as Ex.C1.
6. The Trial Court on appreciation of oral and documentary evidences
available on record, came to the conclusion that the execution of the Suit
Sale Agreement was duly proved by the respondent/plaintiff and
consequently, decreed the suit for specific performance as prayed for.
Aggrieved by the same, the appellant preferred an appeal in A.S.No.62 of
2012 on the file of III Addl District and Session Judge, Salem. The First
Appellate Court concurred with the findings of the Trial Court and
dismissed the appeal. Aggrieved by the same, the appellant is before this
Court.
7. The learned counsel appearing for the appellant submitted that
when the very execution of the Sale Agreement is seriously disputed by the
appellant, the respondent should have proved due execution of the same by
leading cogent evidence. In the case on hand, the Courts below came to the
conclusion that the execution of Sale Agreement was duly proved due to
non-examination of appellant. The learned counsel further submitted that
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S.A.No.574 of 2017
due to ill health, the appellant could not appear before the Court below and
depose. But however, her Power Agent was examined as DW.1. In such
circumstances, without appreciation the evidence of the Power Agent of
appellant in proper perspective both the Courts below erroneously came to
the conclusion that due to non-examination of appellant before the Trial
Court, the respondent is entitled to succeed.
8. In order to prove the due execution of Suit Sale Agreement, the
respondent examined himself as PW.1 and the scribe of the document was
examined as PW.2. The scribe of the Suit Sale Agreement clearly deposed
that parties to the agreement signed the document only after knowing the
contents. In fact, after chief examination of PW.2, he failed to appear before
the Court below and thereafter, the respondent had taken coercive steps
against the witness. Then only, he appeared for cross examination after
issuance of warrant of arrest.
9. As far as two attestors of Suit Sale Agreement were concerned,
though the respondent had taken steps to examine them as witnesses, they
failed to appear before the Court below inspite of service of notice.
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S.A.No.574 of 2017
Thereafter, they appeared at the instance of the appellant as witnesses and
deposed that they had seen the signature of both the respondent and his
vendor in the document even before their attestation. Having regard to the
conduct of the attestors namely DW.2 and DW.3 much reliance cannot be
placed on their evidence, however, the execution of Suit Sale Agreement
has been proved by respondent by examining the scribe of the document.
10. It is the specific case of the appellant that he has not executed Suit
Sale Agreement and the signature found in the Suit Sale Agreement is not
that of her. However, she failed to appear before the Courts below and
deposed in support of her averment in the written statement. The Power
Agent of the appellant was examined as DW.1. He was appointed as Power
Agent only in the year 2010 nearly 20 years after the Suit Sale Agreement.
In such circumstances, he may not aware of the happenings that had taken
place at the time of execution of Suit Sale Agreement. DW.1 in his evidence
clearly admitted that regarding the genuineness of Suit Sale Agreement only
appellant could give evidence and he could not give evidence regarding the
genuineness or otherwise of Suit Sale Agreement. Therefore, the Courts
below rightly had drawn the adverse instance against the appellant for her
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S.A.No.574 of 2017
failed to appear before the Courts, denying the execution of Suit Sale
Agreement.
11. The signature of the appellant found in the Suit Sale Agreement
was sent for expert's opinion for comparison with the admitted signature of
the Chellammal. The report of the experts has been marked as Ex.C1. The
Expert in his report clearly mentioned that the signature found in the Suit
Sale Agreement is that of the appellant/Chellammal. By taking into
consideration the expert opinion and the evidence of scribe of the document
and also fact that the appellant failed to enter the witness box, the Courts
below rightly came to the conclusion that the Suit Sale Agreement was
executed by the appellant. The said factual finding requires no interference
by this Court.
12. As per the terms of agreement, two years time limit was fixed for
performance of sale. The said period expired on 21.07.1993. The respondent
herein without waiting for expiry of full period, issued lawyer notice as
early as 08.09.1992 calling upon the appellant to execute the Sale Deed by
receiving balance sale consideration of Rs.15,000/-. In such circumstances,
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S.A.No.574 of 2017
the respondent also proved the readiness and willingness on his part. The
witnesses examined on behalf of the appellant are not competent to speak
about readiness and willingness. Therefore, the Courts below correctly came
to the conclusion that the Suit Sale Agreement is genuine one and granted
decree for specific performance in favour of the respondent. I do not find
any question of law much less substantial question of law to enable this
Court to interfere with the concurrent findings of facts rendered by the
Courts below. Accordingly, the second appeal stands dismissed.
In Nutshell:-
(i) The Second Appeal is dismissed.
(ii) Consequently, the connected miscellaneous petitions are closed.
(iii) In the facts and circumstances of the case, there will be no order
as to costs.
13.10.2023
Index : Yes/No
Speaking order : Yes/No
Neutral Citation : Yes/No
dm
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S.A.No.574 of 2017
To
1.The III Addl District and Session Judge,
Salem.
2.The Subordinate Judge, Athur.
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S.A.No.574 of 2017
S.SOUNTHAR, J.
dm
S.A.No.574 of 2017
13.10.2023
https://www.mhc.tn.gov.in/judis
