Madras High Court
M.Rajendran vs Leoni Jeyakantha Joy @ Kanthajoy on 23 October, 2024
Author: P.Velmurugan
Bench: P.Velmurugan
AS(MD).No.130 of 2015
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Dated: 23.10.2024
CORAM:
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
AND
THE HON'BLE MR.JUSTICE K.K.RAMAKRISHNAN
A.S(MD).No.130 of 2015
M.Rajendran ... Appellant/appellant
Vs.
Leoni Jeyakantha Joy @ Kanthajoy ... Respondent/Defendant
PRAYER: Appeal Suit has been filed under Section 96 of the Code of Civil
Procedure against the judgment and decree dated 31.07.2014 passed in O.S.No.78
of 2010 on the file of the II Additional District Judge (Fast Track Court II),
Thoothukudi and set aside the same.
For Appellant : Mr.I.Robert Chandrakumar
For Respondent : Mr.S.Subbiah
Senior Counsel for
Mr.G.Aravindhan
1/22
https://www.mhc.tn.gov.in/judis
AS(MD).No.130 of 2015
JUDGMENT
P.VELMURUGAN,J.
The appellant/plaintiff has filed a suit in O.S.No.78 of 2010 on the file of
the learned II Additional District Judge, Thuoothukudi, seeking for specific
performance. After the trial, the said suit was dismissed on 31.07.2014.
Challenging the said judgment and decree, the appellant has filed the present
appeal.
2. The brief facts of the case as averred in the plaint by the appellant before
the trial Court are that the appellant was doing real estate business and also
running a hotel in Thoothukudi. The suit property originally belonged to one
Joseph Maria Pravi Roche. On 15.09.1993, he executed a registered Will in
favour of his daughter, namely, Miss.Maria Prema Roche, who was spinster. The
said Joseph Maria Pravi Roche died on 02.08.1996. After his demise, his
daughter was enjoying the property. Thereafter, she executed a sale agreement in
favour of the appellant on 22.11.2007 for valuable consideration of Rs.
29,00,000/- (Rupees Twenty Nine Lakhs only). She received a sum of Rs.
2,00,000/- (Rupees Two Lakhs only) as advance and subsequently, on
04.03.2008, she received a sum of Rs.4,13,000/- (Rupees Four Lakhs and
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Thirteen Thousand only) and another sum of Rs.3,00,000/- (Rupees Three Lakhs
only) on 27.05.2008. She totally received a sum of Rs.9,13,000/- (Rupees Nine
Lakhs and Thirteen Thousand only) as part consideration. The said payments
were also acknowledged by the vendor/Maria Prema Roche in the agreement
itself. She also handed over the copies of the original title deeds to the appellant.
In the meanwhile, she died intestate on 17.03.2009. Since she was a spinster, her
sister/the respondent herein/defendant is only her legal heir. Except the
respondent, no other legal heir is available to the vendor of the appellant. After
demise of the vendor, the appellant approached the respondent herein to complete
the sale deed and he was also ready and willing to perform his part of the
contract. Since the respondent was evading to execute the sale deed, the appellant
sent a legal notice to her on 22.10.2010. The said notice was duly received by the
respondent on 23.10.2010. But, she did not send any reply and also she did not
come forward to execute the sale deed in favour of the appellant. As the legal heir
of the vendor, the respondent is liable to execute the sale deed based on the
agreement executed by her deceased sister Maria Prema Roche. Since the
respondent did not come forward to execute the sale deed and perform her sister’s
contract, the appellant was constrained to file the present suit.
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3. The brief facts of the written statement filed by the respondent herein
before the trial Court are as follows:
3.1 The appellant had never approached the respondent prior to sending the
pre-suit notice dated 22.10.2010. In fact, though her sister died on 17.03.2009, till
22.10.2010, the appellant had never approached the respondent. As a matter of
fact, for the first time, the appellant approached the respondent only through the
legal notice dated 22.10.2010 and the same was received by the respondent on
23.10.20100 and the same was also duly replied by the respondent on 27.10.2010
and that was also received by the learned counsel for the appellant on 01.11.2010.
In fact, in the reply notice, the respondent demanded the copies of the documents
set up by the appellant in his notice to enable the respondent to make a detailed
reply, but the appellant did not send any documents as sought for by the
respondent. The said facts were suppressed by the appellant and also he made a
false allegation in the suit. Therefore, the respondent got genuine duty to prove
that the appellant forged the documents. The appellant has also not deposited the
balance sale consideration before the Court at the time of filing the suit. If at all,
the appellant was bona fide agreement holder, he could have deposited the
balance amount at the time of filing the suit itself. The respondent also denied the
alleged agreement said to have been executed by her deceased sister and she also
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alleged that till the death of her sister, the appellant did not take action and there
was no communication. Taking advantage of the demise of the vendor, after one
year, the appellant created those documents and without approaching the
respondent personally, he only sent legal notice. When the respondent asked the
documents, because her sister was no more and her sister never revealed to the
respondent regarding the agreement, in order to give a suitable reply to the legal
notice, the appellant did not produce the document dated 15.11.2007 and hence, it
is not supported by any consideration and it is void. The suit property is also
vague and incorrect. One acre of land cannot be segregated based on the
description given in the plaint. The property identification given in the boundaries
is also not proper. The alleged agreement said to have been entered on
15.11.2007, whereas the vendor signed only on 22.11.2007 and the suit was filed
only in the month of November 2010. After expiry of three years from the date of
alleged agreement, there is no explanation as to why, there was a delay on the part
of the appellant in filing the suit.
3.2. The appellant has filed the suit by creating and fabricating the alleged
agreement just to harass the respondent taking advantage that the sister of the
respondent died and therefore, there is no cause of action against the respondent
and the suit is liable to be dismissed with compensatory costs.
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4. Based on the pleading and documents, the trial Court framed the
following issues:
(i) Whether the sale agreement dated 21.11.2007
executed by Maria Prema Roche in favour of the
appellant/appellant in respect of suit schedule property is
genuine?
(ii) Whether the appellant is always ready and willing to
perform his part of contract?
(iii) Whether the appellant is entitled to get specific
performance as prayed for? and
(iv) Whether the appellant is entitled to get any other
reliefs?
5. During the trial, on the side of the appellant/plaintiff, three witnesses
were examined as P.W.1 to P.W.3 and seven documents were marked as Ex.A1 to
Ex.A7. On the side of the respondent/defendant, five witnesses were examined as
D.W.1 to D.W.5 and five documents were marked as Ex.B1 to Ex.B.5.
6. After the trial and hearing the arguments advanced on either side and
considering the materials placed before the trial Court, the trial Court found that
the appellant was not entitled to get decree for specific performance and
therefore, the suit was dismissed with cost. Aggrieved over the same, the plaintiff
has filed the present appeal before this Court.
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7. The learned counsel for the appellant would submit that the appellant
was always ready and willing to perform his part of the contract and also paid the
part consideration of Rs.9,13,000/- (Rupees Nine Lakhs and Thirteen Thousand
only) and in order to prove the sale agreement said to have been executed by the
deceased Maria Prema Roche in favour of the appellant, the witness to the said
agreement was examined as P.W.2. Further, he would submit that the deceased
vendor was alone in their house and no one was taking care of her even the
present respondent and there was no talking terms between the deceased vendor
and the respondent. The vendor was alone in the house and even she did not have
any income for her day-to-day needs. Therefore, she approached the appellant and
also she agreed to sell the suit property on 15.11.2007 for valuable consideration
of Rs.29,00,000/- (Rupees Twenty Nine Lakhs only) and as agreed by her, she
also received a sum of Rs.9,13,000/-(Rupees Nine Lakhs and Thirteen Thousand
only) as part consideration of the suit property and in the meanwhile, the
deceased was murdered on 17.03.2009 and the present respondent as the only
legal heir, is entitled to the property of the deceased vendor. Therefore, she was
called upon to execute the sale deed as legal representatives of the deceased
vendor. Since the respondent did not come forward to execute the sale deed, the
appellant filed a suit.
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8. In order to prove the appellant’s case, the agreement dated 15.11.2007
was marked as Ex.A1 and at the time of agreement and receiving part
consideration, the vendor also handed over certain documents. In order to prove
the same, the patta standing in the name of the vendor was marked as Ex.A.2 and
the legal notice sent by the appellant to the respondent dated 22.10.2010 was
marked as Ex.A.3 and acknowledgement of receipt of the notice was marked as
Ex.A4 and the reply notice sent by the respondent was marked as Ex.A.5. The
statement of the bank account of the appellant was marked as Ex.A6. Since the
respondent denied the execution of sale agreement and also the signature of the
vendor, the disputed signature with admitted signature were sent to forensic
expert for comparing the signature. The expert sent a reply and that report was
also marked as Ex.A7. Further, in order to substantiate his case, the appellant
examined himself as P.W.1; the witness to the sale agreement, namely, Perumal,
was examined as P.W.2 and the expert, who compared the signature was
examined as P.W.3.
9. In view of the above, according to the learned counsel for the appellant,
they have proved execution of the agreement /Ex.A.1, payment of part
consideration of Rs.9,13,000/- and also proved the readiness and willingness.
The learned counsel for the appellant would submit that in order to prove the
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readiness, the appellant also marked Ex.A6, which is the statement of bank
account of the appellant, which disclosed that the appellant has got sufficient
funds in his bank account and during the relevant point of time, he also withdrew
the huge amount, which shows that the appellant out of his source, paid the part
consideration and also had sufficient means during the relevant time. It is
contended that the vendor deceased Maria Prema Roche only postponed the
execution of sale deed. Therefore, under these circumstances, he is entitled to get
the decree for the specific performance.
10. The learned counsel for the respondent would submit that the sale
agreement, Ex.A.1, itself is the forged one and the signature found in Ex.A1 is not
that of the deceased vendor. All the signatures are different with each other and
even Ex.A.7, report of the handwriting expert, shows that it is not conclusive
proof. The evidence of P.W.3 also shows that Ex.A.1 - agreement, is not genuine.
The signatures of the deceased vendor have also not tallied with each other.
Further, the font of the agreement also differs from first page to second page. He
would further submit that in the agreement, the vendor alone signed it and the
appellant has not signed. Since it is the unilateral agreement, the vendor and the
purchaser both have to sign it. Further, Ex.A1 is said to have been executed, that
means, typed on 15.11.2007, whereas the alleged signature of the vendor was
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only made on 22.11.2007 and further, the other signature was also not duly
attested by the witness. Admittedly, the deceased vendor was living alone and she
died unnaturally and taking advantage of the same, the appellant created the
forged documents and even the appellant has not established that he approached
the deceased vendor during her lifetime, after so called alleged third payment and
no material shows that he approached the deceased vendor. In the document, time
was fixed for execution of sale deed as only three months. The appellant has not
proved or stated as to why they have not executed sale deed within the stipulated
time. He would submit that the appellant approached the respondent just prior to
send notice to the respondent. But, the appellant stated that after the death of the
deceased vendor, on several occasions, he approached the respondent and
requested her to execute the sale deed, but the same was not proved in the manner
known to law. The respondent also sent a reply notice to the appellant, but the
same was suppressed by the appellant. Therefore, the appellant has not come to
the Court with clean hands and also he is not entitled for the discretionary decree
for specific performance.
11. First of all, when the agreement itself was denied by the respondent, the
appellant has to prove the same in the manner known to law and also he has to
prove his readiness and willingness, whereas in this case, the evidence of P.W.3
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and Ex.A.7 itself clearly show that Ex.A.1 is not genuine one. Therefore, the trial
Court rightly appreciated all the evidence and dismissed the suit. Hence, the
respondent seeks dismissal of this appeal.
12. The learned counsel also relied upon the judgment of the Hon’ble
Supreme Court of India in the case of Chennadi Jalapathi Reddy Vs., Baddam
Pratapa Reddy (Dead)Thr Lrs. & Anr reported in 2020- 4-LW.532. He also relied
upon the judgment of this Court in the case of K.M.Balasubramanian Vs.,
S.Shanmugam (Deceased) and others reported in 2017-3-LW.378. Further, in the
case of Aloka Bose nad Parmatma Devi and others reported in (2009) 2 SCC 582.
13. Heard both sides and perused the materials available on record.
14. Considering the facts and circumstances of the case, since this Court is
First Appellate Court as a fact finding Court, it has to re-appreciate the entire
evidence independently and arrive at an independent conclusion. Therefore, this
Court has carefully gone through the pleadings, oral and documentary evidence
adduced on either side. Accordingly, this Court formulates the following points
for consideration:
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(i)Whether Ex.A1-sale agreement is genuine?
(ii)Whether the appellant proved that he was ready and willing to perform
his part of the contract?
(iii) Whether the appellant is entitled to get the refund of the advance
alleged to have been paid by him to the vendor?
(iv) Whether the appellant is entitled for the relief of specific performance?
(iv) Whether the appellant is entitled for any other relief?
15. As far as the first point is concerned, according to the appellant, the suit
property originally belongs to one Joseph Maria Pravi Roche. During his lifetime,
he executed a Will in favour of his unmarried daughter Maria Prema Roche on
15.09.1993. The said Joseph Maria Pravi Roche died on 02.08.1996. Thereafter,
his daughter was enjoying the property and she agreed to sell the property on
15.11.2007 for a sum of Rs.29,00,000/- and she received advance of
Rs.2,00,000/- from the appellant and executed the sale agreement in favour of the
appellant on 22.11.2007. Subsequently, on 04.03.2008, she received a sum of Rs.
4,13,000/- and also she received another sum of Rs.3,00,000/- on 27.05.2008. All
the amounts were acknowledged by the Maria Prema Roche in the agreement. she
also produced the copies of the original title deed. Thereafter, the appellant’s
vendor died intestate on 17.03.2009. Since she was a spinster, her sister, the
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respondent herein is her only legal heir. Thereafter, the appellant approached the
present respondent on several times and demanded for execution of sale deed.
Since the respondent was evading to execute the sale deed, the appellant sent a
notice and filed a suit. According to the respondent, except the relationship, all
other facts are denied and she denied Ex.A.1-sale agreement and also receipt of
the part of sale consideration and also taken defence that the property worth about
more than Rs.60,00,000/-, whereas the consideration for alleged agreement is
only Rs.29,00,000/-. Further, the deceased was residing alone and she never
executed a sale agreement and never received any sale consideration and
signatures found in Ex.A.1 is not that of the deceased vendor. The vendor had no
necessity to sell the property and property has not been properly identified.
Though the respondent sent the reply, the appellant suppressed the same. The
respondent asked the appellant to furnish the documents and other particulars, but
he did not give. The appellant was also not ready and willing to perform his part
of the contract, even expert opinion-Ex.A7 and the evidence of P.W.3 have not
supported the case of the appellant and the evidence of P.W.2 is not believable
and therefore, the appellant as the plaintiff has to prove his case and he cannot
take advantage of the weakness of the case of the respondent. In this case, the
appellant has not proved his case.
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16. A bare perusal of Ex.A1 itself shows that it is not a genuine document
and it was concocted one and it is not executed by the deceased vendor. Taking
advantage of the death of the vendor, the appellant making false claim against the
respondent and filed a suit. On a combined reading of the evidence of P.W.3 and
also Ex.P7, it is seen that there is a material contradiction and discrepancies and
further, it is the settled proposition of law that expert opinion is not a conclusive
proof. It is the piece of evidence and the same has to be corroborated with other
materials. Therefore, the Court cannot pass the decree only based on the expert
opinion alone. If the expert opinion is unchallenged and there is no discrepancy
and contradictions, then it can be relied on by the Court, whereas in this case, the
respondent stoutly denied the execution of the agreement itself and also denied
the signatures and therefore, the reading of both the evidence of P.W.3 and Ex.A.7
and some of the signatures are identical and some of the signatures are difference
and therefore, this Court, on a bare looking of the signatures in page No.2 of the
agreement, the vendor alleged to have signed in three places, finds that all the
three signatures are not match with each other and though the Court is not expert,
but still the Court can invoke Section 73 of the Indian Evidence Act and further,
from the evidence of P.W.3 and Ex.A.7 and the perusal of the alleged signature of
the deceased vendor, the execution itself is in doubtful. Though the document is
said to have executed on 15.11.2007, whereas the vendor signed the document
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only on 22.11.2007. The one of the witnesses to the Ex.A.1 was examined as
P.W.2 and his evidence is also not reliable. On a combined reading of the
evidence of P.W.2 and P.W.3, this Court finds that the evidence of P.W.2 is also
not reliable and therefore, under these circumstances, this Court finds that the
agreement alleged to have executed by the vendor is not a genuine one.
17. Though the learned counsel for the respondent has raised one of the
questions of law that the agreement has to be singed by both the vendor and
purchaser and also placed reliance on the judgment reported in (2009) 2 SCC 582,
the contention of the learned counsel for the respondent is not acceptable for the
reason that even agreement can be oral, but however if it is reduced into writing
and bilateral agreement, both the parties have to sign it and unilaterally
cancellation is also not permissible and cancellation is also not valid. However, it
is mandate that the vendor who is willing to transfer his property or agreed to sell
the property has to sign it and signature of the purchaser is not mandatory. The
relevant paragraph 18 of the aforesaid judgment reads as follows:
“18. In any agreement of sale, the terms are always negotiated and
thereafter, reduced in the form of an agreement of sale and signed by both
parties or the vendor alone (unless it is by a series of offers and counter-
offers by letters or other modes of recognized communication). In India,
an agreement of sale singed by the vendor alone and delivered to the
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purchaser, and accepted by the purchaser, has always been considered to
be a valid contract. In the event of breach by the vendor, it can be
specifically enforced by the purchaser. There is, however, no practice of
purchaser alone signing an agreement of sale. “
18. In view of the above, the contention of the learned Counsel for the
respondent is not acceptable. However, a bare perusal of the agreement, it is
found that the agreement is alleged to have executed on 15.11.2007 and
admittedly, no signature was found on 15.11.2007. Even the language of the
agreement is also quite unnatural. Under these circumstances, the sale agreement-
Ex.A1 is not a genuine one. This point is answered accordingly.
19. As far as the readiness and willingness is concerned, the appellant in
order to prove his readiness, marked Ex.A.6, the statement of his bank account, so
that, he had the sufficient funds and he had also withdrawn during the relevant
point of time. Therefore, he proved the readiness. However, in the alleged
agreement, the time period for execution of sale deed was stipulated as three
months. The appellant has not given any explanation as to why he postponed the
execution and even he has not explained anything about the same. Even assuming
that the agreement is genuine, however, he filed suit only after the demise of the
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vendor on 17.03.2009. The appellant has stated in the plaint and also the proof
affidavit for chief examination that he approached the respondent on several
times to execute sale deed, whereas in his evidence he has stated that just prior to
three months of issuance of legal notice, he came to know that the respondent was
the sister of the deceased vendor and notice was sent only on 20.02.2010. From
the evidence of the appellant, he was aware of the death of the vendor only in the
month of June or July, however, the deceased vendor died in the month of
March-2009 unnaturally and she was alleged to have been murdered. Therefore,
from 17.03.2009 till June or July 2010, the appellant has not proved that, he had
taken steps to find out the legal heirs of the vendor.
20. It is seen that after giving complaint by the respondent regarding the
suspicious death of her sister, the appellant came to know about the respondent.
Till 22.10.2010, he had not taken any steps and the appellant has not proved that
soon after the death of the deceased vendor, the appellant approached the
respondent. Except Ex.A.2-legal notice and ExA3 acknowledgement, no other
document was produced. Though the respondent stated that she sent reply, the
appellant also received and the reply was also marked as Ex.A4. However, the
appellant has not given any explanation as to whether he has given any response
to the reply notice sent by her regarding the production of the particulars or any
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documents, though the appellant has stated that at the time of the agreement, he
produced copy of the original document that was also marked herein. Therefore,
under these circumstances, though the appellant has got sufficient means and
even assuming that he was ready to perform his part of the contract, but he has
not proved by producing sufficient materials that he was willing to perform his
part of the contract. Mere readiness alone is not sufficient and the appellant has to
prove the willingness also. Therefore, he has not proved that he was always ready
and willing to perform his part of the contract from the date of agreement till the
date of filing of the suit, even though the period for execution was stipulated in
the agreement as three months. Though the time is ordinarily not an essence of
the contract unless it is contrary proved the same otherwise, however, as the
plaintiff, the appellant has to prove that he was ready and willing to perform his
part of the contract. Therefore, this Court finds that the appellant has also not
proved the willingness. This point is answered accordingly.
21. As far as (iv) point is concerned, as already discussed in both the above
two points that the execution of document itself is doubtful and the genuineness
is also in question, the appellant has not proved that Ex.A.1 is a genuine
document and also this Court already held that the appellant has not proved that
he was ready and willing to perform his part of the contract and therefore, in the
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absence of the same, the appellant is not entitled to get the discretionary relief of
specific performance. This point is answered accordingly.
22. As far as the refund of amount is concerned, this Court has already held
that the genuineness of the agreement itself is doubtful and the appellant has not
proved that the amount mentioned in the agreement Rs,9,13,000/- was paid to the
deceased vendor. Further, the appellant has not pleaded for any alternative relief
of refund of advance amount, even otherwise, the Court can grant the relief if at
all the Court finds that the agreement is true and valid, but however, in this case,
part payment of sale consideration has not been proved by the appellant. Though
the appellant need not prove his case as criminal case beyond all reasonable
doubt, however, the appellant has to prove his case by preponderance of
probabilities. The plaintiff has to prove his case on his own strength and he
cannot take any advantage of the loop holes left by the defendant. In this case,
admittedly, the vendor died and also agreement was said to have executed in the
month of Nov-2007, but the vendor died only on 17.03.2009. Even the
endorsements made in the agreement is also quite unnatural and therefore,
considering the facts and circumstances of the case, this Court does not find
reason to believe that the appellant has paid the advance amount to the
respondent and in the absence of the same, the appellant is not entitled even to the
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alternative relief of refund of advance amount said to have paid by the appellant.
Therefore, this Court finds that the appellant has not proved his case and he is not
entitled to the relief as sought for. The trial Court has elaborately discussed it and
dismissed the suit.
23. In view of the above, since all the points are answered against the
appellant. That apart, on receipt of notice Ex.P.2, the respondent issued reply
under Ex.P.4 and the same was received by the appellant also, who if at all, is
genuine, he could have immediately sent the rejoinder or gave the explanation
regarding the query raised by the respondent. Since the appellant has not
immediately responded to the query raised in the reply notice and further, he went
to the extent of the suppressing reply notice, even assuming that he received reply
notice after filing the suit even in proof affidavit filed by him during the trial also,
he has stated that the reply was not sent by the respondent and therefore, even
while filing proof affidavit, the appellant did not verify the records and he
reiterated simply the averments made in the plaint. Therefore, under these
circumstances, the evidence of the appellant is also only mechanical and
therefore, this Court finds that the appellant has not proved the case and hence,
there is no reason to interfere with the judgment and decree of the trial Court and
there is no merit in the appeal and the same is liable to be dismissed.
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24. Accordingly, this Appeal Suit stands dismissed. However, considering
the facts and circumstances of the case, there shall be no order as to costs.
(P.V.,J.) (K.K.R.K.,J.)
23.10.2024
NCC : Yes/No
Index : Yes / No
Rmk
To
1.II Additional District Judge (Fast Track Court II), Thoothukudi.
2.The Section Office,
VR Section, Madurai Bench of Madras High Court,
Madurai.
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P.VELMURUGAN,J.
and
K.K.RAMAKRISHNAN,J.
Rmk
23.10.2024
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