Madras High Court
Ashokan vs K.K.D.Pandian on 23 October, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 23.10.2024
CORAM
THE HON'BLE MR.JUSTICE P.VELMURUGAN
and
THE HON'BLE MR.JUSTICE JUSTICE K.K.RAMAKRISHNAN
A.S.(MD) No.116 of 2022 and
Cross Objection (MD)No.31 of 2024 and
CMP(MD)No.4086 of 2022
A.S.(MD) No.116 of 2022
1.Ashokan
2.Jeeva Harikrishnan
... Appellants/Defendants
Vs.
K.K.D.Pandian
... Respondent/Plaintiff
Prayer: Appeal Suit filed under Section 96 of Civil Procedure Code, to set
aside the Judgment and Decree dated 19.08.2021 passed in O.S.No.26 of
2016 on the file of the Additional District Court (Fast Track), Theni.
For Appellants : Mr.J.Barathan
For Respondent : Mr.G.Prabhu Rajadurai
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Cross Objection (MD)No.31 of 2024
K.K.D.Pandian
... Cross Objector / Respondent
Vs.
1.S.Asokan
2.Jeeva Harikrishnan
... Respondents/Appellants
Prayer: Cross Objection filed under Order 42 Rule (22) C.P.C to set aside
the Judgment and Decree dated 19.08.2021 passed in O.S.No.26 of 2016
on the file of the Additional District Court (Fast Track), Theni and allow
the cross appeal by decreeing the suit for specific performance with costs.
For Cross Objector : Mr.C.Sundaravadivel
For Respondents : Mr.J.Barathan
COMMON JUDGMENT
P.VELMURUGAN, J.
The respondent is the plaintiff in O.S.No.26 of 2016. The
appellants are the defendants in the said suit. The respondent filed the
suit in O.S.No.26 of 2016 on the file of the learned Principal District
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Judge, Theni, for specific performance and the same was made over to the
learned Additional District Judge, (Fast Track), Theni, for disposal. After
trial, the learned Additional District Judge, though dismissed the main
relief of specific performance, however, granted the alternative relief of
refund of the advance amount. Challenging the said Judgment and
Decree, the defendants in the suit have filed the present appeal and
challenging the relief of dismissal of the specific performance, the
respondent has filed the cross objection. Since both the appeal and the
cross objection arise out of the same judgment and decree, both are heard
together and disposed of by this common Judgment.
2. The brief facts of the case of the respondent/plaintiff are that the
suit property with a larger extent of 2 acre 4 cents, out of 4 acre 8 cents in
S.No.1434/2001, originally belonged to one Sivasamy Chettiyar and their
children, Samidurai and the father of the appellants, by name,
Subramanian, and they got the “C” schedule property, which contains 5
times, to an extent of 2 acre and 4 cents through a registered partition
deed, dated 25.01.1959. Therefore, the original owner Subramanian and
his children viz., the appellants and Sivakumar are the co-parceners of the
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Hindu joint family property. For the development and the interest of the
joint family, the said Subramanian and their male members alienated a
portion of the property to an extent of 1 acre 2 cents from the 2 acres and
4 cents, except the suit property, The same was sub-divided as S.No.
1434/1C. As a Kartha of the family, the patta stood in the name of
Subramanian for the land to an extent of 1 acre 2 cents in S.No.1434/1C.
While so, the said Subramanian executed a settlement deed in respect of
1/3rd share in favour of his daughter, the second appellant on 29.09.2010
under a registered Will. Thereafter, the said Subraminan died leaving
behind his legal heirs, the appellants and one Sivakumar. Therefore, as
per the Hindu Succession Act, the appellants and the said Sivakumar are
the legal heirs of the deceased Subramanian. After the death of the said
Subramanian, the said Will came into existence. Therefore, all the
appellants and Sivakumar were enjoying the property jointly and
therefore, the said Sivakumar is entitled to 1/3rd share in the above said
suit property of 1 acre 2 cents. As per the Will, from the 1 acre 2 cents,
the appellants are entitled to 34 cents each and the said Sivakumar is
entitled to 34 cents. The appellants entered into a sale agreement with one
Damodharan under a sale agreement, dated 09.11.2010, as if, the
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appellants are entitled to the entire property of 1 acre 2 cents and the
appellants received a sum of Rs.10,00,000/- from the said Damodharan as
advance. Therefore, the said Sivakumar filed the suit against the
appellants in O.S.No.39 of 2010 and thereafter, they entered into a
compromise. Subsequently, based on the above said agreement, the said
Damodharan entered into a sale agreement with the respondent with the
knowledge of the appellants on 11.11.2010. The said Damodharan
received a sum of Rs.86,50,000/- from the respondent for the advance of
sale consideration. Thereafter, the son of the first appellant one Karthik
filed a suit against Subramanian, the first appellant and Sivakumar on the
file of the I Additional District Judge, Fast Track Court, Periyakulam for
partition. Pending the suit, the said Subraminan died and the said suit is
pending. The second appellant executed a power of attorney in favour of
the first appellant on 04.03.2011 in respect of her share and therefore, the
first appellant for himself and as the power of attorney of her
sister/second appellant, executed a sale agreement on 02.09.2013 in
respect of their 2/3rd share to the extent of 68 cents, out of 1 acre 2 cents.
In the said agreement, there is a recital about the agreement between the
respondent and the said Damodharan and the respondent paid the amount
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to the said Damodharan and therefore, after deducting the said amount
paid by the respondent to the Damodharan, the respondent agreed to pay
the balance sale consideration to the appellants and the appellants have
also agreed for the same and they have executed the sale agreement for
the extent of 68 cents, out of 1 acre 2 cents. Since the suit filed by
Karthik was pending before the Fast Track Court, Periyakulam, they have
entered into a compromise with the said Karthik and they executed the
sale deed. Thereafter, the appellants have prolonged the same and they
have not executed the sale deed. The respondent was always ready and
willing to perform his part of the contract and the appellants are one way
or other stating their dispute with the legal heirs of the said Subramanian,
evaded to execute the sale deed and therefore, the respondent filed the
suit for specific performance and for the alternative relief of the advance
payment made by him to the said Damodharan with the interest of 12%
per annum.
3.The brief facts of the written statement filed by the
appellants/defendants are that the alleged sale deed, dated 29.09.2010,
said to have been executed by the appellants in favour of Damodharan is
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false and not supported with consideration and also alleged agreements
dated 09.11.2010 and 11.11.2010 and 02.03.2013 are false and they have
created the documents for the purpose of this case. The agreement, dated
09.11.2010, is not legally valid and all the interested parties in the suit
have not been impleaded as party. Therefore, the suit is hit by non-jointer
of necessary parties. The appellants have not received any so called
consideration said to have been paid by Damodharan and the agreements
dated 09.10.2010 and 11.11.2010 are concocted documents. The suit is
barred by limitation. The respondent very well knows about the pending
suit in O.S.No.39 of 2010 on the file of the Fast Track Court, Periyakulam
and despite knowing the pendency of the suit, the alleged agreements said
to have been executed and the said agreements are not valid in law and
the respondent also suppressed the date of the death of Subramanian.
The suit is not maintainable. The appellants never received any amount
from the said Damodharan much less than the Rs.86,50,000/- and also
except those amount and that they executed the sale consideration for the
balance consideration, is utterly false. The said agreement is not a
registered one and therefore, it is not valid. In the agreement, dated
02.09.2013, the signature of the first appellant was obtained by fraud and
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the witnesses shown in the said agreement are fraudulent persons and the
respondent has not stated how the Advocate-cum-Notary Public Mr.Raja
Mohammad was involved in this case. Though the respondent obtained
agreement for the land to an extent of 1 acre 2 cents, the suit has been
filed only for 42 ½ cents. Therefore, the suit is not valid in law. The
respondent has not deposited the so called advance of Rs.86,50,000/- and
the respondent has falsely stated that he has filed the lodgment schedule
before the Court for depositing the said amount. The respondent has not
pleaded regarding the readiness and willingness to perform the contract
on his side. The four boundaries of the suit property has not been
properly identified and the pending suit also has not been properly
disclosed in the plaint. Since the agreement is in respect of the undivided
property of 42 ½ cents, the brother of the first appellant one Sivakumar
and Damodharan are the necessary party in the suit, however, they have
not been impleaded as a party to the suit. Therefore, the suit is hit by
non-jointer of necessary parties. The respondent, with the connivance of
Damodharan, has fraudulently created the documents for the purpose of
filing the suit and filed the suit. The respondent has no cause of action to
file the suit. The suit is liable to be dismissed for suppression of material
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facts. The respondent is not entitled to get any decree as sought for in the
plaint much less than the relief of specific performance or refund of the
advance amount.
4. Based on the pleadings and the documents produced by both the
parties, the Trial Court framed the following issues:
“(i) Whether the defendants have executed the
sale agreements dated 09.11.2010, 11.11.2010 and
02.03.2013 in favour of the plaintiff in respect of the
suit property?
(ii) Whether the plaintiff is entitled to get the
relief of specific performance of the contract as prayed
for?
(iii) Whether the plaintiff is entitled to recover
the advance amount of Rs.86,50,000/- with interest as
alternative relief?
(iv) To what other relief and the cost of the suit,
the plaintiff is entitled?”
5. During trial, on the side of the respondent, three witnesses were
examined as P.W.1 to P.W.3 and eight documents were marked as Exs.A1
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to A8. On the side of the appellants, one witness was examined as D.W.1
and one document was marked as Ex.B1.
6. After trial, the Trial Court, on hearing the arguments on either
side, considering the pleadings and oral and documentary evidence,
dismissed the suit in respect of the relief of specific performance,
however, decreed the suit for alternative relief of refund of the advance
amount of Rs.86,50,000/- with the interest at the rate of 12% per annum
with costs. Challenging the said judgment and decree, the appellants
have filed the present appeal and the respondent has filed the cross
objection aggrieved over the dismissal of the relief of specific
performance.
7(i) The learned counsel for the appellants would submit that the
alleged sale agreements dated 09.11.2010 and 11.11.2010 are in respect of
land to an extent of 1 acre 2 cents in S.No.1434/1C of Veerapandi Village,
whereas, the sale agreement, dated 02.09.2013, is in respect of an
undivided 2/3rd share measuring an extent of 68 cents, out of 1 acre 2
cents in the above said survey. The specific case of the respondent is that
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the appellants had entered into an agreement, dated 09.11.2010, with one
Damodharan and that the appellants had received a sum of Rs.10,00,000/-
agreeing to sell the property at the rate of Rs.3,40,000/- per cent at a total
sale consideration of Rs.3,46,80,000/-, however, the above said
Damodharan was not impleaded as a party to the suit. The alleged sale
agreement, dated 09.11.2010, had been attested by the three witnesses,
but none of them had been examined as witness on the side of the
respondent to prove the execution of the said agreement. The respondent
had filed the original sale agreement, dated 09.11.2010, along with the
plaint, but he had not pleaded anywhere in the plaint, how he got custody
of the said original document alleged to have been entered into between
the appellants and the said Damodharan. However, the said Damodharan
has not filed any suit against the appellants either for specific
performance of the alleged sale agreement, dated 09.11.2010, or for
refund of the alleged advance amount. The alleged sale agreement, dated
11.11.2010, had been entered into within two days of the alleged sale
agreement, dated 09.11.2010, but the appellants are not even parties to the
same. The alleged sale agreement, dated 11.11.2010, states that the
subject property is under the control of the said Damodharan; that he had
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agreed to sell the same to the respondent for a sum of Rs.4,15,000/- per
cent at a total sale consideration of Rs.4,23,30,000/-; that the said
Damodharan had received the advance amount of Rs.86,50,000/- from the
respondent; and that the time for performance of the contract is on or
before 31.12.2010.
(ii) The learned counsel would further submit that the specific case
of the respondent is that the said Damodharan had received a sum of Rs.
86,50,000/- as advance amount from him under the sale agreement, dated
11.11.2010. The respondent had specifically pleaded in his plaint that the
appellants had agreed to sell a portion of the subject property at the very
same rate of Rs.4,15,000/- per cent even under the alleged sale
agreement, dated 02.09.2013 nearly after three years of the alleged sale
agreement, dated 11.11.2010. The alleged sale agreement, dated
02.09.2013, is not even a tri-party agreement between appellants, the
respondent and the said Damodharan. The alleged sale agreement, dated
11.11.2010, and any of its recitals, terms and conditions will not bind the
appellants. The sale agreements dated 09.11.2010, 11.11.2010 and
02.09.2013 had been fraudulently created and concocted by the
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respondent. The respondent had produced the alleged sale agreement,
dated 11.11.2010 along with the plaint and the list of documents states
that the original of it had been produced before the lower Court and the
respondent has marked the same as an exhibit treating it as original, but
during the cross examination, the respondent (P.W.1) had clearly admitted
that the said sale agreement produced and marked before the Court below
is a colour Xerox copy. The appellants had specifically pleaded in the
written statement that they had not received the amount of Rs.86,50,000/-
either from the respondent or from the said Damodharan. The said
Damodharan had not even attested the alleged sale agreement, dated
02.09.2013. The sale agreement, dated 02.09.2013, did not state that the
appellants had received a sum of Rs.86,50,000/- from the said
Damodharan. The alleged sale agreement, dated 02.09.2013, contains an
interlineation with ink pen by removing the printed portion with a
whitener; further, such an intention had not been attested either by the
respondent or by the appellants. The respondent, during his cross
examination, had admitted that the Advocate-cum-Notary Public Mr.Raja
Mohammed, who had allegedly attested the alleged sale agreements dated
11.11.2010 and 02.09.2013, is his close relative.
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(iii). The learned counsel would further submit that the respondent
had deposed in his cross examination that he had shown the sum of Rs.
86,50,000/- allegedly paid by him to the said Damodharan, in his Income
Tax Returns and that he is prepared to produce his accounts before the
Court, but he had not produced them before the Court on the subsequent
dates. The Trial Court has to drawn adverse inference against the
respondent for not producing the Income Tax accounts to show the
payment of Rs.86,50,000/- paid to Damodharan. The respondent had
admitted during his cross examination that the alleged sale agreements,
dated 11.11.2010 and 02.09.2013, do not contain any recital to show that
the appellants had received a sum of Rs.86,50,000/-. The respondent had
admitted during his cross examination that the said Damodharan was not
present at the time of the execution of the alleged sale agreement, dated
02.09.2013. He would further submit that the font size in pages 1 and 2
of the alleged sale agreement, dated 02.09.2013, are different. The
respondent had admitted during his cross examination that he did not
send any pre-suit notice to Damodharan. The respondent had not even
pleaded in his plaint that he had sent any pre-suit notice before institution
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of the plaint. But on the other hand, the respondent has deposed, as if he
sent pre-suit notice to the appellants and as if they returned without being
served on them; but, no such returned cover had been either produced
along with the plaint or at the time of trial.
(iv) The learned counsel would further submit that though the
respondent had stated that a lodgement schedule along with the plaint for
a sum of Rs.3,36,80,000/- has been deposited before the Court, but he has
not obtained any challan from the Court and has not deposited the said
amount into Court in order to prove his readiness and willingness. Since
he has not deposited any amount, it clearly shows that the three alleged
sale agreements had been fraudulently created and concocted only for the
purpose of getting the decree for recovery of the amount and for the
purpose of specific performance. Even the respondent had admitted
during his cross examination that there was no agreement between him
and the said Damodharan as to payment of any interest and that he does
not know about any such agreement for payment of interest between him
and the said Damodharan. Even P.W.2, who was said to have been
examined as witness for the alleged agreement, did not speak about the
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execution of the earlier one and about his attestation to the same. He
would further submit that the proof affidavit filed for chief examination
itself shows that there is no sufficient material to prove the execution of
the alleged sale agreement, dated 02.09.2013. He would further submit
that the respondent has not proved the said document under Section 68 of
the Indian Evidence Act. The alleged agreement was not proved in the
manner known to law. The Advocate-cum-Notary Public, who was
examined as P.W.3, has admitted that he has to be bound to maintain a
Notary Register and give a serial number, whereas, he had not obtained
any signature from the parties in his Notary Register and he has not given
any serial number for the disputed documents. P.W.2 also admitted the
difference in font size of the letters in the alleged agreement, dated
02.09.2013.
(v) The learned counsel would further submit that inspite of filing a
written statement denying the execution of the alleged sale agreements
dated 09.11.2010 and 02.09.2013 and also questioning all the three
witnesses regarding fraudulent creation and concoction of the disputed
documents, the respondent did not take any steps to sent them to the
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forensic lab to obtain opinion from the handwriting expert under Section
45 of the Indian Evidence Act, 1972. The first appellant had specifically
stated in his deposition that he has no objection for sending the disputed
documents for comparison to the handwriting expert. The evidence of
P.W.2 and P.W.3 are not sufficient to prove the execution of the alleged
sale agreements dated 11.11.2010 and 02.09.2013. Especially, Ex.A2
original sale agreement was not produced and colour Xerox alone was
marked as Ex.A2. Even the submission made by the appellants was not
considered by the Trial Court, while deciding the case. The respondent is
not entitled to any interest as claimed by him in the suit. The suit is liable
to be dismissed with extraordinary costs under Section 35 of C.P.C. The
learned counsel would further submit that the respondent was not ready
and willing to perform his part of the contract and since the alleged
agreements themselves are forged and concocted, the respondent is not
entitled to even the relief of recovery of the advance amount. Therefore,
the Judgment and Decree passed by the Trial Court for alternative relief
of refund of the advance amount is liable to be dismissed. Hence, the
appeal may be allowed.
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8(i) The learned counsel for the cross objector/respondent/plaintiff
would submit that the appellants have executed a sale agreement in
favour of the respondent. Since they already entered into an agreement
with one Damodharan and received a sum of Rs.86,50,000/- from the said
Damodharan, in Ex.A4, they have stated that less the amount, which was
already paid by Damodharan. Since the respondent paid the said amount
to the said Damodharan, he has to pay the balance sale consideration to
the appellants. After the agreement, the respondent was ready and willing
to perform his part of the contract and he has also established the
agreement said to have been executed by the appellants in favour of the
respondent. Though the Trial Court admitted the evidence of P.W.2 and
P.W.3, granted the alternative relief of refund of the advance amount. The
Trial Court failed to see that the respondent was ready and willing to
perform his part of the contract and he has also paid advance amount,
which was paid by Damodharan to the appellants. The appellants have
not produced any documents to prove their readiness and willingness,
however, the respondent was ready and willing to perform his part of the
contract by paying the balance sale consideration, as per the agreement,
dated 02.09.2013. Though the respondent filed the lodgment schedule to
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the Trial Court, the Trial Court has not passed any order to deposit the
said amount and therefore, he could not deposit the amount before the
Court. The non-deposit of the amount before the Trial Court will not be a
proof of non-performance of the contract and the respondent was not
ready and willing to perform his part of the contract. In spite of the
respondent was ready and willing to perform his part of the contract, the
appellants even after receiving the pre-suit notice, have not come forward
to execute the sale deed, after obtaining the balance sale consideration,
less the amount already paid to the Damodharan, i.e., Rs.86,50,000/-. The
respondent has pleaded in his pleadings that he was ready and willing to
perform his part of the contract and also ready to pay the balance sale
consideration, less the amount already paid to Damodharan.
(ii) The learned counsel would further submit that the time was not
essence of the contract. Even in Ex.A4, agreement dated 02.09.2013,
there is no recital regarding that time is essence of the contract. Even
otherwise, it is well settled proposition of law that for sale agreement of
immovable property, unless the specific recital in the agreement for the
particular purpose, ordinary time is not essence of the contract. The Trial
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Court failed to consider the fact, merely because, the respondent has not
deposited the balance sale consideration into the Court and also he has
not paid the amount within the stipulated time. Therefore, the cross
objector/plaintiff had not proved that he was ready and willing to perform
his part of the contract. The finding of the Trial Court is erroneous and
the respondent was always ready and willing to perform his part of the
contract and he has sufficient sources to meet out the sale consideration.
The respondent has also produced the agreement dated 02.09.2013
(Ex.A4) and the same was proved by examining P.W2 and P.W3, Notary
Public, who attested to the agreement. The Trial Court failed to exercise
the discretionary power of the Court by granting the relief of specific
performance under Section 20(3) of the Specific Relief Act. Therefore,
the respondent proved his case including his readiness and willingness
and the execution of the documents. Though the Trial Court accepted the
execution of the documents and payment of the sale consideration of Rs.
86,50,000/-, failed to consider the fact that the respondent was ready and
willing to perform his part of the contract. Therefore, under these
circumstances, the appeal filed by the appellants is liable to be dismissed
and the judgment and decree passed by the Trial Court regarding the
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dismissal of the specific performance is liable to be set aside and the cross
objection is liable to be allowed.
9. Since the first Appellate Court is the fact finding Court, this
Court has to re-appreciate the entire evidence and give independent
finding, for which, this Court has taken the following points for
determination:
“(1) Whether the respondent/cross objector has
proved the execution of Ex.A4 - sale agreement?
(2) Whether the respondent/cross objector was ready
and willing to perform his part of the contract and the same
was proved by the respondent/cross objector?
(3) Whether the respondent/cross objector is entitled
to the claim as sought for in the cross objection?
(4) Whether the Judgment and Decree passed by the
Trial Court regarding the alternative decree, is liable to be
set aside?”
Point No.1:
10. The specific case of the respondent in the appeal/cross objector
is that the suit property belongs to the appellants. The appellants are the
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brother and sister. The second appellant executed a power of attorney in
favour of the first appellant. Based on the power of attorney, the first
appellant executed Ex.A4-sale agreement for himself and as a power of
attorney of the second appellant, in favour of the respondent on
02.09.2013. The consideration stated to have been paid that the
appellants executed a sale agreement in favour of one Damodharan by
getting Rs.86,50,000/-. The appellants have not executed the sale
agreement in time due to the pendency of the suit filed by the son of the
first appellant. In that agreement, the appellants agreed to execute the
sale deed either in favour of Damodharan or on his direction to anybody.
Subsequently, the said Damodharan entered into an agreement with the
respondent while getting the said advance amount already paid by
Damodharan to the appellants. Therefore, the appellants also agreed to
execute the sale deed for their share. After settling the pending suit filed
by the son of the first appellant, the appellants have delayed to perform
their part of the contract. After giving sufficient time and also the
demand, the respondent has filed the suit for specific performance and for
the alternative relief of refund of the advance sale consideration paid to
the appellants by discharging the amount paid to the said Damodharan.
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Since the appellants have already received the said amount from the said
Damodharan, the appellants are liable to execute the sale deed on receipt
of the balance sale consideration as mentioned in Ex.A4. In order to
prove the case of the respondent/cross objector, the respondent himself
was examined as P.W.1 and also to prove Ex.A4 agreement, he examined
two witness as P.W.2 and P.W.3. Though the respondent proved the
agreement (Ex.A4) and also his readiness and willingness, the Trial Court
failed to consider the same and dismissed the relief of specific
performance sought for by the respondent, however, decreed the suit for
alternative relief of payment of the advance amount as mentioned in
Ex.A4 agreement. Challenging the said Judgment and Decree, the
appellants have filed the present appeal and for dismissal of the relief of
specific performance, the respondent has filed the cross objection.
11. The specific case of the appellants is that they have not
executed the sale agreement (Ex.A4) and Ex.A4 and connected
agreements are concocted by the respondent and no consideration was
paid and even the suit properties are not properly identified. The earlier
agreement was for entire extent of 1 acre 2 cents, whereas, Ex.A4 is only
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
for 68 cents. Further, the other owners of the properties were not
impleaded as the parties. Both the suits are also pending between the
original owners of the suit property. The appellants denied the execution
of the agreement and signatures of the appellants were also forged and the
suit is barred by limitation and the appellants have not proved their
readiness and willingness and the agreement Ex.A4 was also not proved
in the manner known to law. Though the Trial Court has rightly
appreciated the defence taken by the appellants and also appreciated the
evidence that the respondent has not proved the readiness and
willingness, has rightly dismissed the main relief, however, granted the
alternative relief. In the absence of proof of Ex.A4, granting the
alternative relief, is not proper. Therefore, as they aggrieved, they have
filed the present appeal.
12. Though the respondent has filed the suit for specific
performance based on the agreement Ex.A4 said to have been executed
by the first appellant for himself and on behalf of the second appellant in
favour of the respondent, the appellants have denied the same and also
gone into the extent of saying that the agreements are forged and
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
concocted and therefore, once the execution itself is denied, it is the duty
of the respondent/cross objector, as the plaintiff, to prove the case that the
agreement Ex.A1 was executed by the appellants herein. In order to
prove the said agreement, the respondent has examined himself as P.W.1.
He has spoken about the execution of Ex.A1 agreement. He has also
examined one of the witnesses to the said agreement as P.W.2 and he has
spoken about the execution of the agreement by the appellants in favour
of the respondent. The agreement was notarized and therefore, the Notary
Public was examined as P.W.3. However, the learned counsel for the
appellants vehemently contended that the said agreement has to be proved
under Section 68 of the Indian Evidence Act by examining the attestor
and the agreement, dated 02.09.2013, (Ex.A4) was not proved, as
contemplated under Section 68 of the Indian Evidence Act. He would
further contend that the evidence of P.W.1 is not sufficient to prove the
execution of the alleged sale agreement, dated 02.09.2013 (Ex.A4) under
Section 68 of the Indian Evidence Act. The respondent himself was
examined and produced the said agreement, dated 02.09.2013, and the
same was marked as Ex.A4 and one of the witnesses to the agreement was
also examined on the side of the respondent and the Notary Public was
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
also examined as P.W3. However, the learned counsel for the appellants
contended that the agreement was not proved under Section 68 of the
Indian Evidence Act. Therefore, for better understanding, it is necessary
to extract hereunder Section 68 of the Indian Evidence Act:
“68. Proof of execution of document required by
law to be attested.––If a document is required by law to be
attested, it shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving
its execution, if there be an attesting witness alive, and
subject to the process of the Court and capable of giving
evidence:
13. A bare reading of Section 68 of the Act shows that if a
document is required by law to be attested, it shall not be used as
evidence until one attesting witness at least has been examined for the
purpose of proving its execution. Therefore, it is necessary to say that
what are the documents are required to be attested.
14. Mortgage deed is required by law to be attested for the reason,
as per Section 59 of the Transfer of Property Act, the mortgage deed with
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
the secured amount is more than one hundred Rupees, the mortgage
should be effected through a registered instrument and it has been signed
by the mortgagor and attested by at least two witnesses. Section 59 of the
Transfer of Property Act is extracted hereunder:
“59. Mortgage when to be by assurance.—
Where the principal money secured is one hundred
rupees or upwards, a mortgage other than a mortgage
by deposit of title-deeds can be effected only by a
registered instrument signed by the mortgagor and
attested by at least two witnesses.
Where the principal money secured is less than
one hundred rupees, a mortgage may be effected either
by a registered instrument signed and attested as
aforesaid, or (except in the case of a simple mortgage)
by delivery of the property.”
15. Yet another document, gift/settlement deed is required by law to
be attested for the reason that under Section 123 of the Transfer of
Property Act, the settlement deed must be effected by a registered
instrument signed by or on behalf of the donor, and attested by at least
two witnesses. Section 123 of the Transfer of Property Act is extracted
hereunder:
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
“123. Transfer how effected.—For the purpose of
making a gift of immovable property, the transfer must
be effected by a registered instrument signed by or on
behalf of the donor, and attested by at least two
witnesses.
For the purpose of making a gift of moveable
property, the transfer may be effected either by a
registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as
goods sold may be delivered.
16. Therefore, except these two documents, no other documents are
required by law to be attested as per the provisions of the Transfer of
Property Act. Apart from these two documents, yet another document is a
Will as required by law to be attested for the reason that as per Section 63
of the Indian Succession Act, even though the Will is not a compulsory
registered document, however, the Will has to be attested by two
witnesses. Section 63 of the Indian Succession Act is extracted hereunder:
“63. Execution of unprivileged Wills.—Every
testator, not being a soldier employed in an expedition or
engaged in actual warfare, or an airman so employed or
engaged, or a mariner at sea, shall execute his will
according to the following rules:—
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(a) The testator shall sign or shall affix his mark to
the Will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the
signature of the person signing for him, shall be so placed
that it shall appear that it was intended thereby to give
effect to the writing as a will.
(c) The Will shall be attested by two or more
witnesses, each of whom has seen the testator sign or
affix his mark to the Will or has seen some other person
sign the Will, in the presence and by the direction of the
testator, or has received from the testator a personal
acknowledgment of his signature or mark, or of the
signature of such other person; and each of the witnesses
shall sign the will in the presence of the testator, but it
shall not be necessary that more than one witness be
present at the same time, and no particular form of
attestation shall be necessary”
17. Therefore, under Section 68 of the Indian Evidence Act, these
are three documents required by law to be attested and therefore, the same
shall not be used as evidence, until one attesting witness at least has been
called for, for the purpose of proving its execution.
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
18. The subject matter of the suit is filed only based on the sale
agreement (Ex.A4). Therefore, it does not fall under Section 68 of the
Indian Evidence Act. Therefore, the agreement is not the document
required by law to be attested and therefore, it need not be proved under
Section 68 of the Indian Evidence Act.
19. Section 72 of the Indian Evidence Act is clear that proof of
document not required by law to be attested, other than the above said
document not required by law to be attested, may be proved as if it was
unattested. In this case, since the agreement not falls under documents
required by law to be attested, the agreement need not be proved under
Section 68 of the Indian Evidence Act, then, it can be proved as if it was
unattested. Section 72 of the Indian Evidence Act reads as follows:
“72. Proof of document not required by law to be
attested.––An attested document not required by law to be
attested may be proved as if it was unattested.”
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
20. Further, the agreement is defined under the Contract Act.
Section 2(e) of the Contract Act reads as follows:
“2(e) Every promise and every set of promises,
forming the consideration for each other, is an
agreement;”
21. On a reading of the said Section, it is seen that the agreement
either may be oral or written. Once the agreement is in written, then it
has to be proved in the manner known to law. As already stated, it is not
a document required to be attested and it can be proved as if it was
unattested document and as stated, in order to prove Ex.A4, even one of
the witnesses to Ex.A4 was examined as P.W.2. In this case, the
document is an unattested document and therefore, it was proved as if it is
unattested document and as already stated, the respondent was examined
as P.W.1 and he has spoken about the execution and the one of the
witnesses to the document was also examined as P.W.2 and the Notary
Public was also examined for proving the execution of the documents.
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
22. The further contention of the learned counsel for the appellants
is that since the execution was denied, the respondent ought to have
proved the document by sending the disputed document with admitted
document to the Forensic Lab and getting opinion by invoking Section 45
of the Indian Evidence Act. The first appellant was examined as D.W.1
and when he was put to suggestion as to whether he is going to take any
steps for sending the document, he has answered that 'not necessary'. It
is the duty of the respondent to prove the document, whereas, the
respondent has produced and marked the said agreement itself as Ex.A4
as primary evidence and in order to prove the execution of the document,
P.W.1 to P.W3 were examined. Therefore, the foundation fact of execution
of the agreement was proved by the respondent. Therefore, onus has been
shifted to the appellants. But the appellants could not discharge their
onus, however, the respondent has produced the document before the
Court and also examined the witnesses to prove the same that the
appellants have not taken any contra evidence. Therefore, under these
circumstances, since the first Appellate Court is the fact finding Court,
this Court has to re-appreciate the entire evidence.
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
23. Though the appellants have denied the execution of Ex.A4-
agreement, when the respondent has taken effective steps to prove the
same in the manner known to law, the appellants have not taken any steps
to disprove the same in the manner known to law. Though it is well
settled proposition of law that the plaintiff has to prove his case on his
own strength and he cannot take advantage of the loopholes left by the
defendant, however, in this case, the plaintiff has taken effective steps to
prove the disputed alleged sale agreement Ex.A4. Further, the burden of
proof of the plaintiff in the civil case is not that of the prosecution in the
criminal case that the prosecution has to prove the case beyond the
reasonable doubt. Whereas, in the civil case, the plaintiff at the best has
to establish the case with preponderance of probabilities. Whereas, in
this case, the respondent has established the agreement that was executed
by the first appellant for himself and on behalf of the second appellant as
the power of attorney in favour of the respondent. This point is
determined accordingly.
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
Point Nos.2 and 3:
24. Though Ex.A4-agreement was said to have executed by the
appellants in favour of the respondent, mere execution of the agreement
itself is not enough to get the relief of specific performance. Further, the
respondent has to prove the readiness and willingness. The respondent
has stated that time is essence of the contract, whereas, there is no such
stipulation in the agreement. However, even though the time is not
essence of the contract regarding the sale of immovable property still the
plaintiff has to prove that from the date of execution of the agreement till
the filing of the suit, he was ready and willing to perform his part of the
contract. Though the respondent has stated that the appellants originally
executed the agreement in favour of one Damodharan, however, there is
no material to show that the said Damodharan was ready and willing and
sent legal notice. Further, there is a recital in the agreement that the
appellants have to execute the sale deed either in favour of Damodharan
or his direction and based on that the respondent said to have got
agreement. It is not the case that the said Damodharan has made over the
said agreement, however, according to the respondent, he paid the amount
to Damodharan, which was paid by the Damodharan to the appellants.
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However, still the respondent/cross objector has to prove that he was
ready and willing to perform his part of the contract from the date of
agreement till the date of filing of the suit. Though the respondent has
stated that he was a mane of means, the same was challenged by the
appellants. Even if he is financially well sound man of means, it may be
satisfied regarding the readiness. As far as willingness is concerned, the
respondent has to prove that he was always willing to execute his part of
the contract.
25. A reading of the entire materials and both oral and documentary
evidence, this Court does not find that the respondent proved the
willingness from the date of agreement till the filing of the suit. At the
time of filing the suit, he got lodgment statement for depositing the
amount, however, he has not proved that he deposited the balance sale
consideration less the advance amount of Rs.86,50,000/- and they
deposited the said amount before the Court. The deposit of the balance
sale consideration is not a condition precedent of filing the suit or proving
the willingness. Ex.A4 was executed on 02.09.2013, however, the suit
was filed only on 13.04.2016 i.e., four months prior to the expiry of
Ex.A4. Whereas, even the oral agreement is dated 09.11.2010 and the
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subsequent agreement is dated 11.11.2010 (Ex.A2). Therefore, after
execution of Ex.A1 and Ex.A2, November 2010 only, Ex.A4 came to be
executed only on 02.09.2013 i.e., within two months prior of the expiry of
the limitation period. However, even assuming that the suit is within a
period of limitation, taking into consideration Ex.A4 dated 02.09.2013,
the suit came to be filed on 13.04.2016, but the respondent/cross objector
has not proved that he approached the appellants to execute the
documents and even the respondent has not sent a pre-suit notice and
called for the appellants to execute the sale deed by receiving the balance
sale consideration. Therefore, under these circumstances, there is no
material to show that the respondent has proved that the willingness to
perform his part of the contract. While granting the relief of specific
performance, the Court has to see conduct of the parties from entire
materials not from isolated facts. Therefore, under these circumstances,
this Court finds that the respondent is not entitled to the relief of specific
performance as sought for in the suit. Since the respondent has not
established the readiness and willingness, he is not entitled to get the
decree as sought for in the suit. Therefore, the respondent/cross objector
is not entitled to get the relief as sought for in the cross objection.
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
Therefore, the cross objection is liable to be dismissed. The points are
determined accordingly.
Point No.4:
26. As already discussed, though the respondent has proved the
execution of the agreement (Ex.A4), he has not proved the readiness and
willingness, hence, the relief of specific performance was rejected by the
Trial Court. A careful perusal of the oral and documentary evidence, this
Court also finds that the respondent has not proved the readiness and
willingness, however, the agreement Ex.A4 was proved. Once the relief
of specific performance is disallowed, this Court has to decide as to
whether the respondent/cross objector is entitled to get the refund of
advance amount paid. In this case, even as per the agreement Ex.A4, the
respondent has not directly paid the advance amount of Rs.86,50,000/- to
the appellants. However, he has stated that the appellants said to have
entered into the agreement on 09.11.2010 with one Damodharan and they
were paid a sum of Rs.10,00,000/- as advance amount and thereafter, the
respondent entered into the agreement with one Damodharan, in which,
he has paid Rs.86,50,000/- as advance. Subsequently, under Ex.A4, the
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respondent entered into the agreement with the appellants. The recital of
Ex.A4-agreement shows that the said Damodharan said to have received a
sum of Rs.86,50,000/- from the respondent and executed Ex.A2
agreement. Based on that, the appellants and the respondent have
executed Ex.A4-agreement and less the said amount paid to the said
Damodharan, the respondent has agreed to pay the balance sale
consideration to the appellants. The appellants have taken a specific
stand that the said Damodharan neither impleaded as party nor examined
as witness. However, it is seen that already the respondent filed the
application to implead the said Damodharan as a party in the suit, but the
same was dismissed by the Trial Court stating that the suit for specific
performance cannot be converted into a comprehensive suit. Except the
parties to the agreement Ex.A4, no one is neither necessary nor proper
party and hence, the same was dismissed and the same was not challenged
by either of the parties. Therefore, the finding of the Trial Court in this
regard is ended finality. Further, it is only a suit for specific performance
based on the agreement Ex.A4. Therefore, the Court has to see while
granting discretionary remedy, whether the agreement is genuine and the
plaintiff has proved the execution of the agreement and the readiness and
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willingness. In case the plaintiff is able to prove the readiness and
willingness, the Court can grant the relief of specific performance. In
case the Court is not satisfied that the readiness and willingness were not
proved by the parties, who approached the Court, the Court can order a
refund of the advance amount, if any, paid under the agreement.
Therefore, in this case also, as already stated, Ex.A4-agreement was
proved by the respondent/cross objector in the manner known to law.
Though the appellants denied the execution and also the signature, they
have not discharged their onus in the manner known to law. Therefore,
under these circumstances, the respondent/cross objector is entitled to get
the refund of the advance amount mentioned in the agreement. Therefore,
this point is determined accordingly.
27. In the result, both the appeal and the cross objection are
dismissed. No costs. Consequently, connected miscellaneous petition is
closed.
[P.V., J.] [K.K.R.K., J.]
23.10.2024
NCC : Yes/No
Index : Yes/No
Internet: Yes
skn
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
To:
1.The II Additional District Judge, Tiruchirappalli.
2. The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S.(MD) No.116 of 2022 & Cro.Obj(MD)No.31 of 2024
P.VELMURUGAN, J.
and
K.K.RAMAKRISHNAN, J.
skn
A.S.(MD) No.116 of 2022 and
Cross Objection (MD)No.31 of 2024 and
23.10.2024
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