Madras High Court
R.Kalaivani vs Savithriamma on 29 October, 2024
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.751 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.10.2024
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No.751 of 2024
R.Kalaivani ... Appellant
Vs.
1. Savithriamma
2. M.Radhamma
3. M.Sharadhamma
4. M.Umadevi
5. M.Nagaraj
6. M.Baghyalakshmi
(Respondents 1 to 6 are represented
by their registered General Power
of Attorney holder)
7. T.L.Harinath .. Respondents
PRAYER : Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree dated 19.01.2022 made in
A.S.No.34 of 2019 on the file of Addl. District Court, Hosur modifying the
judgment and decree dated 24.04.2019 passed in O.S.No.121 of 2012 on the
file of Principal Subordinate Court, Hosur.
1/12
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S.A. No.751 of 2024
For Appellants : Mr.Ravi
Senior Advocate for
M/s. Ravi Law Chambers
JUDGMENT
Challenging the concurrent findings of the courts below rendered in
A.S.No. 34 of 2019 by the Principal Subordinate Judge, Hosur arising out
of trial court findings in O.S.No.121 of 2012 on the file of Addl. District
Judge, Hosur, this Second Appeal was preferred by the plaintiff.
2. For the sake of convenience, the parties are denoted as per the
ranking in the suit.
3. Before the trial court, the plaintiff filed a suit for the relief of
specific performance in O.S.No.121 of 2012 against the defendants 1 to 7,
claiming possession and other consequential relief. Before the trial court, 7th
defendant, who is power agent of defendants 1 to 6 remained exparte. The
defendants 1 to 6 have contested the suit. According to the plaintiff, he
entered into a sale agreement with the defendants through their power agent
to purchase the property originally belong to one Muniyappa as their
separate and self-acquired property. Subsequently, he died intestate leaving
behind his wife and children, defendants 1 to 6 as his legal heirs. All the
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defendants 1 to 6 have jointly executed a General Power of Attorney in
favour of 7th defendant on 19.05.2010 authorising and empowering him to
sell the suit schedule property on behalf of them. Accordingly, the 7th
defendant, as a power agent entered into a sale agreement with the plaintiff
on the same day and received an advance amount of Rs.2,00,000/- from the
plaintiff and agreed to execute the sale deed within a period of 11 months.
Since the defendants are in need of funds to meet the family expenses and
also to clear sundry debts and also to purchase other properties, finally, the
sale price was finalised at Rs.9,00,000/-. Accordingly, the 7th defendant
received a sum of Rs.3,00,000/- on 13.10.2010 and thereafter he received a
sum of Rs.3,00,000/- on 03.02.2011 and subsequently, he received another
sum of Rs.50,000/- on 02.03.2011 and made an endorsement to that effect.
The total consideration was fixed at Rs.9,00,000/-, out of which, a sum of
Rs.8,50,000/- was paid and he has agreed to receive the balance amount of
Rs.50,000/- at the time of execution and registration of sale deed. The
plaintiff is also ready and willing to perform her part of contract and to pay
balance sale consideration. However, when he approached 7th defendant
along with mediators to execute the sale deed, he evaded. Thereafter, he
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came to know that the defendants 1 to 7 have colluded and fraudulently
cancelled the general power of attorney dated 29.07.2011 after receiving
huge amount from the plaintiff even when the sale agreement dated
19.05.2010 is in force in favour of plaintiff. Therefore, he issued a notice
dated 05.04.2012 to the defendants and the same were returned with an
endorsement “refused”. Though the 7th defendant received notice, he had
not complied the demand of notice. Hence, the suit was filed against them,
in which the 7th defendant remained exparte.
4. The defendants 1 to 6 have contested the suit stating that the 1 st
defendant is wife and other defendants 2 to 6 are legal heirs of T.Muniyappa
and they have obtained a sum of Rs.3,00,000/- towards loan from the 7th
defendant on 17.05.2010 for medical expenses of son of 6th defendant and
agreed to pay 6% interest, which comes around Rs.18,000/- per month. But,
the 7th defendant instructed them to execute a general power of attorney in
his favour in respect of suit property as security. Accordingly, for the
medical treatment, they have executed a General Power of Attorney. On
executing the same, the 7th defendant issued a self-cheque for Rs.2,70,000/-
after deducting one month interest and registration charges and the same
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was submitted for collection and they received a sum of Rs.2,70,000/- on
20.05.2010 from the bank. Subsequently, the 7th defendant colluded with the
plaintiff by playing fraud against the defendants 1 to 6 and created a
fabricated sale agreement on the day of execution of General Power of
Attorney without the knowledge of defendants 1 to 6. Therefore, they have
raised objections and contended that it is only a money transaction.
Thereafter, they came to know about fraudulent act of 7th defendant and
plaintiff, hence, they gave a complaint to the Superintendent of Police,
Krishnagiri and the same was numbered as C.No.42/ALG/KGI/2012.
During enquiry, the 7th defendant gave a statement that he paid a sum of
Rs.19,00,000/- to the defendants, which is contrary to the sale considertion
mentioned in the alleged agreement and on knowing the same, the
defendants 1 to 6 have cancelled the General Power of Attorney on
29.07.2011.
5. Before the trial court, both parties have adduced oral and
documentary evidence. The trial court framed four issues. On considering
both oral and documentary evidence, the trial court held that the plaintiff is
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not entitled for the relief of specific performance for the reason that the
stamp papers for Ex.A1, Sale agreement as well as Ex.A2 General Power of
Attorney were purchased from the same stamp paper vendor in the name of
plaintiff and 7th defendant respectively on 17.05.2010, thereby both have
colluded together and created sale agreement for unlawful gain. They have
also contended that the General Power of Attorney was executed only on
19.05.2010 and on the same day itself, the sale agreement was also
consequently registered, which would shows that there was a collusion
between the plaintiff and 7th defendant. It is also an undisputed fact that
without getting power of attorney, the sale negotiation held between them,
which itself shows that they played fraud on the family of defendants 1 to 6
and also contended that the payment of consideration was also not proved
by the plaintiff. Furthermore, in respect of possession, the evidence of P.W.1
gave consequential findings as if she is in possession of property, but as per
the terms of Ex.A1, it was not specifically mentioned nor there is a specific
pleading in respect of possession. Moreover, the evidence of P.W.1
extracted by the trial court in paragraph 11, in which she had clearly stated
that she is not aware of execution of sale agreement. So, the entire fact
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reveals that the plaintiff is not a bonafide purchaser and accordingly, the
relief claimed by the plaintiff was declined and the suit was dismissed.
Against which, the plaintiff preferred an appeal in A.S.No. 34 of 2019,
wherein the first appellate judge independently analysed the entire facts and
evidence on record and elaborately discussed the same in paragraphs 14 and
15 of the judgment. The first appellate judge held that the General Power of
Attorney was given to 7th defendant on 19.05.2010 and on the same day,
sale agreement was executed consequently between 03.00 p.m. to 04.00
p.m., which would shows that there is a collusion between them. As per the
contentions of defendants, due to the urgency of medical treatment in
respect of their family member, they have received only a sum of
Rs.2,70,000/- from the 7th defendant, through which, it proves that the same
was received as loan, not the alleged sale consideration and in respect of
possession, the first appellate judge referred the evidence given by P.W.1
and during her evidence, she has stated that she is in possession of property,
which is not supported by pleadings. Considering that, the first appellate
judge confirmed the findings of trial judge and dismissed the appeal. But,
the first appellate judge also gave a direction to the defendants directing
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them to refund the advance amount of Rs.2 lakhs. Challenging the said
findings, now the plaintiff preferred this Second Appeal.
6. The learned counsel for appellant would submit that the both
courts below erroneously concludes that there was a collusion between
plaintiff and the 7th defendant. In fact, the defendants 1 to 6 have colluded
with 7th defendant and attempted to defraud the claim of plaintiff. Both the
courts below also failed to appreciate that the defendants have ignored to
perform their part of contract within a stipulated period, but the same was
not properly appreciated by the courts below. So, he prayed to admit this
Second Appeal on the following question of law :-
(i) Whether in law after reversing the judgment of the trial
court in dismissing the suit in toto and after finding that the
plaintiff is entitled to return of advance amount of Rs.2,00,000/-
with interest, has not the lower appellate court erred in not
granting decree for the specific performance?
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7. Considering both side submissions as well as on perusal of records,
it reveals that the alleged sale agreement as well as General Power of
attorney was registered on the same day between the plaintiff and the 7 th
defendant, who is power agent of defendants 1 to 6. The findings of courts
below held that on the date of execution of General Power of Attorney, the
7th defendant entered into a sale agreement in respect of suit property. The
defence of defendants 1 to 6 is that they have approached 7th defendant for a
loan to meet out urgent medical treatment for the son of 6th defendant and
they executed a general power of attorney. On executing the same, the 7th
defendant issued a self-cheque for Rs.2,70,000/- after deducting one month
interest and registration charges (out of Rs.3,00,000/-) and the same was
submitted for collection and they received a sum of Rs.2,70,000/- on
20.05.2010 from the bank. According to plaintiff, the sale consideration was
fixed at Rs.9,00,000/- and he paid the amount of Rs.8,50,000/- on three
occasions and for the remaining sum of Rs.50,000/-, time was fixed for 11
months, but there is no proof that he paid the sale consideration to
defendants 1 to 7. The 7th defendant remain exparte. The learned counsel for
appellant failed to take notice to summon the 7th defendant to prove his
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claim. Moreover, on seeing the conduct of plaintiff and 7th defendant, there
is suspicious circumstances surrounding on the genuineness of the alleged
agreement, however, when the plaintiff prayed for exclusive relief of
specific performance, she is bound to prove her relief beyond reasonable
doubt. But, as on date, she is in possession of property and in the sale
agreement, there is no recitals about handing over the possession of
property. It would not clearly reveals that P.W.1 was not aware of the
particulars of stamp vendor and also recitals made in the alleged sale
agreement. This itself shows that she is not a bonafide purchaser. Therefore,
both the courts below rightly appreciated the evidence of P.W.1 and
disagreed with the claim of execution of sale deed. In the said
circumstances, the plaintiff approached the court with unclean hands and as
per the findings as well as evidence of P.W.1 would clearly reveals that she
colluded with 7th defendant and created a fabricated sale agreement said to
be entered between her and the defendants 1 to 6 through their power agent,
7th defendant, which is totally illegal under law. As per the contentions of
defendants 1 to 6, they have received a sum of Rs.2,70,000/- and the same
alone is liable to be refunded. However, the first appellate court held that
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the refund of amount of Rs.2,00,000/- alone was ordered instead of
Rs.2,70,000/-. Accordingly, the defendants are directed to refund the
advance amount of Rs.2,70,000/- with interest at the rate of 6% from the
date of agreement i.e. on 19.05.2010 till realisation within a period of three
months from the date of receipt of copy of this order. Accordingly, this
Second Appeal is dismissed as no merit. No costs. Consequently, the
connected Civil Miscellaneous Petition is closed.
29.10.2024
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
Sub-Judge,
Arakkonam.
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T.V.THAMILSELVI, J.
rpp
29.10.2024
https://www.mhc.tn.gov.in/judis
