Madras High Court
Kala Malini vs John Samuel on 29 January, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.01.2025
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
A.S.No. 674 of 2017 & A.S.Nos. 357 & 647 of 2018
and
C.M.P.No. 21160 of 2017, 17510 of 2018 & 12015 of 2020
A.S.No.674 of 2017
H.Murugan (died)
1. Kala Malini
2. Minor M.Dinesh
3. Minor Jai
Appellants 2 and 3 are being
minors, rep. by their mother
and natural guardian
Mrs.Kala Malini, 1st appellant
herein ... Appellants
Vs.
1. John Samuel
2. K.Govindan
3. S.Balu .. Respondents
PRAYER : Appeal Suit filed under Section 96 r/w Order 41 Rule 1 of
Code of Civil Procedure, to set aside the judgment and decree dated
1/44
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
28.03.2017 made in O.S.No.309 of 2006 on the file of Addl. District Judge,
Kanchipuram District at Chengalpattu.
A.S.Nos.357 of 2018
K.Govindan .. Appellant
Vs.
1. John Samuel
2. Kala Malini
3. Minor M.Dinesh
4. Minor Jai
Minors 3 and 4 are being
minors, rep. by natural guardian
and mother, the 2nd respondent .. Respondents
PRAYER : Appeal Suit filed under Section 96 r/w Order 41 Rule 1 of
Code of Civil Procedure, to set aside the judgment and decree dated
28.03.2017 made in O.S.No.309 of 2006 on the file of Addl. District Judge,
Kanchipuram District at Chengalpattu.
A.S.No.647 of 2018
S.Balu .. Appellant
Vs.
1. John Samuel
2. Kala Malini
3. Dinesh
4. Jai
5. K.Govindan .. Respondents
2/44
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
PRAYER : Appeal Suit filed under Section 96 r/w Order 41 Rule 1 of
Code of Civil Procedure, to set aside the judgment and decree dated
28.03.2017 made in O.S.No.309 of 2006 on the file of Addl. District Judge,
Kanchipuram District at Chengalpattu.
For Appellants
in A.S.No.674 of 2017 : Mr.R.Singgaravelan,
Senior Advocate for
Mr.Govi Ganesan
For Respondents
in A.S.No.674 of 2017 : Mr.K.V.Babu for R1
Mr.R.Asokan for R2
Mr. C.R.Malarvannan
for R3
For Appellant
in A.S.No.357 of 2018 : Mr.R.Asokan
For Respondents
in A.S.No.374 of 2018 : Mr.K.V.Babu for R1
No appearance for R2 to R5
3/44
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
For Appellant
in A.S.No.647 of 2018 : Mr.C.R.Malarvannan
For Respondents
in A.S.No.647 of 2018 : Mr.K.V.Babu for R1
No appearance for R2 to R5
COMMON JUDGMENT
The appellants in A.S.No.674 of 2017 are the defendants 2 to 4/ legal
heirs of deceased original defendant Murugan in the suit in O.S.No. 309 of
2006. The appellants in A.S.Nos. 357 & 647 of 2018 are the defendants 5
and 6 in the suit in O.S.No. 309 of 2006 and they are the purchasers of the
suit property pending proceedings. All these Appeal Suits have been filed
challenging the findings given by the trial judge in the suit filed by the 1 st
respondent/plaintiff in O.S.No.309 of 2006 on the file of Addl. District
Judge, Kancheepuram District at Chengalpattu.
2. For the sake of convenience, the parties are denoted as per the
ranking in the suit.
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A.S.No. 674 of 2017 &
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3. Before the trial court, the 1st respondent/plaintiff filed a suit for the
relief of specific performance directing the original defendant Murugan to
execute the sale deed as per the sale agreement dated 30.04.2006 entered
between them in respect of suit property as prescribed in the suit schedule
property with alternative remedy of refund of advance amount of
Rs.9,00,000/- with interest at the rate of 18% along with a compensation of
Rs.25,000/- as per the terms of agreement. When the original defendant
Murugan alive, he filed a written statement and thereafter, he died and his
legal heirs, defendants 2 to 4 were impleaded. His wife, 2nd defendant filed
an additional written statement. Subsequently, the defendants 5 and 6 were
impleaded as they were said to be purchasers of the suit property pending
litigation by the plaintiff. The 2nd defendant submitted that after death of
her husband, she came to enter an agreement with the plaintiff as well as
one Govindan. Before that, Murugan, his brother and his sisters created a
mortgage deed jointly with the third party. During his life time, original
defendant/her husband sold the property to Govindan/5th defendant but she
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was not aware of the other transaction, however, the plaintiff was originally
inducted as tenant of the suit property. Therefore, her husband Murugan
demanded rent, but the plaintiff has not paid the rent even after his demise.
So, to escape from his liability to pay the rent the present vexatious suit
was filed. However, she is ready to pay advance amount paid by the
plaintiff said to have been received by her husband. The purchasers 5 th and
6th defendants submitted that they are bonafide purchasers of the property
from Murugan/original defendant for a valid consideration. After the
purchase, they intimated to the plaintiff, who is a tenant in the property
calling upon him to pay monthly rent of Rs.15,000/- per month, but he has
not paid the rent to them. Hence, the R.C.O.P. petition was filed. Even prior
to the purchase, Govindan/5th defendant inspected the property and during
his visit, the plaintiff has not raised any objections. So, he was aware of the
purchase made by him, but refused to pay the rent. Hence, he has initiated
R.C.O.P. proceedings. Moreover, the 5th defendant is the first Agreement
holder of the suit property and the alleged agreement relied on by the
plaintiff is the second agreement and the same will not supersede his
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agreement. If really, any such second agreement, the 2nd defendant alone
bound to pay advance amount, thereby he contended that the suit is
vexatious one. The purchasers, the 5th defendant purchased an extent of 342
sq.ft. of undivided share and 6th defendant purchased an extent of 80 sq.ft.
for a valid consideration, wherein, he is running a tea stall. The purchasers
have also contended that the alleged suit agreement was not found in
encumbrance. So, as a bonafide purchasers, they have purchased the
property from the defendant Murugan for a valid consideration.
4. Both parties have adduced their oral and documentary evidence
before the trial court. Issues were framed. On considering both oral and
documentary evidence on record, the trial judge finally held that the
plaintiff is entitled for the relief of specific performance as he proved his
readiness and willingness and also held that purchasers/defendants 5 and 6
are not bonafide purchasers. Therefore, sale deeds stand in their names
marked as Ex.A15 and Ex.A16 are null and void and nonest in the eye of
law, and it would not bind the plaintiff. Accordingly, the suit for specific
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performance was granted with the declaration. In the meanwhile, the
original defendant died. Challenging the said findings, legal heirs of the
deceased/defendants 2 to 4 and purchasers/defendants 5 and 6 have
preferred these three appeals.
5. Brief facts of the case reveals that the suit property as described in
the plaint schedule was allotted to the share of original defendant as per the
partition held in the family, in which undivided half share measuring an
extent of 849 sq.ft. in Survey No. 320/2 situated at Tambaram was allotted.
Adjacent to the said property, plaintiff owned his property at No.83,
Shanmugamm Road and the rear property belong to the original defendant.
In fact, an extent of 293 sq.ft. in Survey No.320/2 southern side of the suit
property sold to plaintiff's father by the defendants along with other co-
owners on 17.04.2002. Thereafter, the remaining extent of 1330 sq.ft. in
respect of 844 sq.ft. together with building in the ground floor, an
undivided half share in the said land was allotted to the share of defendant
Murugan (hereinafter referred to as “suit property”) and the remaining
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building in the first floor and undivided half share in the suit property
allotted to defendant's brother Tamilselvan. In the year 2006 itself, the
original defendant's family leased out the suit property to the father of
plaintiff and the rent of Rs.1080/- was paid, apart from that a sum of Rs.7
lakhs was paid as advance for the suit property by the plaintiff's father.
While so, the original defendant decided to sell his share and approached
the plaintiff's father, due to his old age, plaintiff was looking after his
business, to whom the original defendant made an offer. After verifying the
encumbrance, on 30.04.2006 sale agreement was entered between the
plaintiff and the original defendant for the sale consideration of
Rs.17,00,000/- to the suit property. As per the terms of clause 3 of the
agreement, advance amount of Rs.7,00,000/- was already paid at the time
of tenancy and the same was adjusted along with a sum of Rs.2,00,000/-
towards advance paid on the date of agreement. Accordingly, total sum of
Rs.9 lakhs was treated as advance. For the balance amount, within three
months, the plaintiff has to pay the amount and get a sale deed. However,
the entire suit property was given possession as per the terms of the
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agreement. Further, the original defendant also agreed to vacate and hand
over the staircase and tea shop measuring an extent of 100 sq.ft. in the
ground floor. Before the stipulated period of 10.07.2006, the plaintiff
approached the defendant, but the defendant evaded and not taken steps to
vacate as he promised. Hence, on 15.07.2006, the plaintiff issued a notice
calling upon the defendant to execute the sale deed, but no reply from him.
Furthermore, the defendant's brother Tamilselvan issued a notice on
19.07.2006 to the plaintiff's father stating that he is having undivided half
share in the property, therefore, the alleged agreement is not valid, but the
said notice was issued at the instigation of defendant colluding with his
brother. In fact, the agreement property no way connected with the share of
Tamilselvan, besides he had full knowledge about the agreement. In the
meanwhile, the plaintiff's father received yet another notice dated
25.07.2006 stating that one G.Rajan claims that the defendant and his
brother and sisters created a mortgage over the suit property by receiving
the loan amount of Rs.3,00,000/- on 01.12.2004 and entire property is
subject to mortgage, but at the time of agreement, the defendant not
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informed about the said mortgage nor the defendant taken steps to vacate
the premises. Therefore, he filed a suit for a specific performance with
alternative remedy.
6. The original defendant Murugan, while he was alive filed a written
statement stating that the suit property originally belongs to his father and
after his demise, in the year 1991, he along with other co-owners viz.,
brother and sister jointly mortgaged the property and got loan from the
third party for the family needs. Even though there was a partition held
subsequently, but the mortgage loan was not redeemed as other coowners
have not cooperated with him. However, he has entered into a sale
agreement with the plaintiff as per the share allotted in the partition deed,
but he was not able to redeem the mortgage due to non-cooperation of other
co-owners. That fact was also very well known to the plaintiff's family and
as a family friend they already known each other, with whom he explained
everything and he accepted the same but he filed this vexatious claim.
Further, he would submit that already the plaintiff was a tenant for a
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A.S.Nos. 357 & 647 of 2018
monthly rent, but not paid the rent before filing the suit itself with the
intention to harass. Therefore, he is ready to return the advance amount
along with receipt, but without redeeming the mortgage, he is unable to sell
the property and the said statement was filed on 22.11.2006 and thereafter,
he died leaving behind his wife and two minor children. All were added as
defendants 2 to 4 and consequently, his wife filed an additional written
statement stating that she was not aware of dealings of her husband. She
submits that Govindan claimed as purchaser and she came to know all these
transactions recently. But, the plaintiff, who is tenant in the suit property
not paid the rent for more than 4 years and she is ready to pay advance
amount said to have been received by her with bank interest and demanded
possession. The defendants 5 and 6 have submitted that they entered into
sale agreement with deceased Murugan after applying encumbrance
certificate, wherein he found no encumbrance on the date of sale agreement
on 18.12.2005. Thereafter, he purchased the property through a sale deed
dated 28.07.2008, before that, he personally inspected the property and the
same was known to the plaintiff, thereby he purchased 346 sq.ft. an
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A.S.No. 674 of 2017 &
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undivided share and he informed to the plaintiff to pay the rent, which is
due to him, but he refused. Hence, a petition in R.C.O.P.No.39 of 2008 was
filed. The 6th defendant also contended that he is a bonafide purchaser of 80
sq.ft. together with superstructure from Murugan through a sale deed on
29.05.2008, thereafter, he is the absolute owner of suit property. Before
that, he verified the revenue records and not found any encumbrance.
Hence, he prayed to dismiss the suit. The plaintiff was inducted as a tenant
in the suit property eversince from the year of 2008. Hence, he is not
entitled to question the sale made in favour of defendants 5 and 6, as such
the suit is devoid of merit.
7. Considering both side submissions as well as on considering the
evidence on record, the trial judge framed the following issues :-
(a) Whether the 1st defendant handed over the vacant possession of
the major portion of suit property on the date of sale
agreement?
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(b) Whether the plaintiff was ready and willing to pay the balance
sale consideration of Rs.8,00,000?
(c) Whether the plaintiff was aware of the mortgage of the entire
property with third parties?
(d) Whether the husband of 2nd defendant sold the suit property
with the knowledge of the plaintiff?
(e) Whether the 5th defendant is a bonafide purchaser of the suit
property?
(f) Whether the plaintiff is entitled to the relief of specific
performance of contract as prayed for?
(g) Whether the plaintiff is entitled to get the advance amount of
Rs.9,00,000/- with the interest at the rate of 18% p.a.?
(h) Whether the plaintiff is entitled to get the compensation of
Rs.25,000/- as prayed for?
After impleading purchasers, the prayer in respect of the relief of
declaration also been determined the sale deeds as null and void also
amended as per order passed in I.A.No. 579 of 2008.
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8. Before the trial court, on the side of plaintiff, he was examined as
P.W.1 and two independent witnesses P.W.2 and 3 were examined. On the
side of defendants, the defendants 2,5 and 6 were examined as D.W.1 to 3.
The documents Ex.A1 to A28 were marked on the side of plaintiff and
Ex.B1 to B3 were marked on the side of defendants. On considering both
oral and documentary evidence, the trial judge held that the alleged sale
agreement relied on by the 5th defendant/D.W.2 was created to defeat the
right of plaintiff with anti-date by obtaining stamp paper in the month of
August 2007, created alleged agreement Ex.B1 dated 18.12.2005 relied on
by fifth defendant with anti-date. Based on fabricated agreements, the sale
deed executed in favour of 5th defendant is not valid one. Accordingly, 5th
defendant is not a bonafire purchaser, thus the sale deed relied on by him
marked as Ex.A15 is not valid under law.
9. So also, in respect of purchase made by 6th defendant, the trial
judge held that he purchased the property pending litigation through
Ex.A16 sale deed after filing the written statement by the original
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defendant and the sale deed would not affect the right of plaintiff in view of
Sec.52 of Transfer of Property Act. Hence, the 6th defendant also not a
bonafide purchaser. Accordingly, the said sale deeds are not valid under law
and would not bind the plaintiff, thereby Issue Nos.1 to 3 were decided in
favour of plaintiff by granting declaratory relief in respect of suit sale deed.
In respect of relief of specific performance, the trial judge held that
originally, the written statement filed by the defendant Murugan, in which
he has not denied the sale agreement. However, he pleaded only inability to
complete the sale as his family members not cooperating to discharge the
mortgage. After his demise, the 2nd defendant, his wife also admitted the
advance towards part of sale agreement executed by her husband.
Furthermore, the possession of portion of the property under the occupation
of plaintiff's father as a tenant was handed over the plaintiff on the date of
agreement as per the clause 10 of agreement. Thereafter, the plaintiff also
expressed his readiness and willingness before expiry of three months
stipulated period and issued a notice, for that the defendant not replied and
immediately suit was filed, he deposited the amount, thereby he proved his
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readiness and willingness. Accordingly, the plaintiff is entitled for the relief
of specific performance, thereby the suit was decreed. Challenging the said
findings, now the defendants 2 to 6 have preferred these three Appeal Suits
as narrated above.
10. The learned counsel for appellants would submit that the court
below failed to take note of the fact that based on Ex.A5, alleged sale
agreement, the plaintiff was not put in possession of suit property though as
tenant, he was occupied the suit property without even paying rent, besides
without framing issue under Sec.16(c) of Specific Relief Act, the finding
given by the trial judge, as such is erroneous one. Further, he would also
submit that Ex.A5 sale agreement is an unregistered document and the
same is not admissible in evidence in respect of part performance, but the
courts below failed to take note of the said fact. He would further submit
that the plaintiff is at the most entitled for refund of advance amount and
not the relief of specific performance, without considering the value of the
property increase, after 11 years from the date of alleged agreement.
Further, the trial judge failed to take note of the fact that during the
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interregnum period, the plaintiff not paid any rent and also committed
default in rent. Further, the purchasers of the property, the defendants 5 and
6 also contended that the trial court failed to frame specific issue in respect
of readiness and willingness of plaintiff even after recasting the issue. That
apart, he further raised the following grounds :-
(1) The court below has failed to take note that there is nothing on
record to show that the plaintiff's father agreed to treat the said
advance amount of Rs.7,00,000/- paid by him as part of the sale
consideration for transaction between the plaintiff and the 1st
defendant. He was not a party to the sale agreement Ex.A5.
Merely because the plaintiff and the 1st defendant agreed to treat
the rental advance of Rs.7,00,000/- paid by the father of plaintiff
is to be taken as part of sale consideration for the suit property in
the sale agreement Ex.A5, in the absence of any material
evidence to show that the plaintiff's father agreed to the same, it
cannot be presumed that the father of plaintiff agreed to the said
adjustment.
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(2) The court below has failed to note that the sale agreement
Ex.A5, under which the plaintiff is said to have taken possession
of the suit property as part performance of the sale agreement, is
a document which requires registration under Sec.17 of
Registration Act and since the same has not been registered, no
suit could be filed based on the unregistered document.
(3) The court below committed error in holding that the 5 th and 6th
defendants/appellants are not a bonafide purchasers for value
without notice of the suit agreement and therefore, the sale deeds
Ex.A15 and Ex.A16 in their favour as null and void.
(4) The court below failed to take note of the fact that as alternative
prayer, the plaintiff had sought for refund of advance amount
paid under the sale agreement and the 1st defendant and
thereafter, the 2nd defendant in their written statements had
expressed their willingness to refund the advance amount to the
plaintiff with bank interest. In such circumstances, the court
below ought to have passed a decree directing the refund of
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advance amount to the plaintiff instead of decreeing the suit for
specific performance.
(5) The court below has failed to note that the actual advance paid
by the plaintiff under the sale agreement was only Rs.2,00,000/-
and the balance of Rs.7,00,000/- was only the rental advance
paid by the plaintiff's father in pursuance of the tenancy
agreement in respect of the suit property. Therefore, the plaintiff
would not suffer any prejudice if the amount paid by him
(Rs.2,00,000/-) is directed to be refunded with bank interest.
Furthermore, the father of plaintiff was paying monthly rent of
Rs.5250/- for the suit property and from 2006, the plaintiff is in
possession of the suit property free of rent for the past more than
11 years. In such circumstances, the court below ought to have
directed refund of advance of amount of Rs.2,00,000/- to the
plaintiff and ought not to have decreed the suit for specific
performance.
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(6) The court below has failed to note that in all cases of suit for
specific performances, it is not necessary to decree the suit and
the court is required to take into all factors including the
escalation of prices before directing specific performance of the
agreement.
By submitting the aforesaid grounds, he prayed to set aside the findings of
the trial judge.
11. By way of reply, the learned counsel for plaintiff would submit
that during the life time of original defendant Murugan, he enters sale
agreement with the plaintiff and also he agrees to execute the sale deed
within a stipulated period, indeed the plaintiff expressed his readiness and
willingness through notice, but the defendant not inclined to comply the
terms. Hence, he filed a suit immediately and also deposited the balance
amount, thereby he proved his readiness and willingness. Even tough there
is no specific issue, but the entire fact reveals that the plaintiff proved his
readiness and willingness and the same was rightly appreciated by the trial
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judge. On considering the evidence on record, both oral and documentary,
the findings rendered by the trial judge is well-reasoned one, which needs
no interference of this court. The learned counsel argues that the purchase
made by defendants 5 and 6, pending litigation are hit by principles of
lispendence, and they are not bonafide purchasers, the alleged agreement
executed in the year 2005 marked as Ex.B1 relied on by the 5 th defendant
dated 18.12.2005 also not true and valid one and the same was proved with
the help of documents Ex.A21 to Ex.A28, through which he is able to
establish that the stamp paper was purchased in the year 2007 and 2008
with with anti-date, thereby Ex.B1 was fabricated one and the same was
rightly appreciated by the trial judge. Therefore, the trial judge rightly held
that 5th and 6th defendants are not bonafide purchasers, accordingly, sale
deeds are null and void and nonest in the eye of law nor it would bind the
plaintiff. Furthermore, trial judge rightly held that as per clause 10 of the
sale agreement Ex.A5, the possession of plaintiff as a tenant was given
absolutely by adjusting the amount of Rs.7 lakhs along with another
advance paid on the date of agreement, a sum of Rs.2 lakhs, totally, a sum
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of Rs.9 lakhs. Therefore, the plaintiff was rightly put in possession of the
property in part performance of agreement by appreciating evidence
adduced on his side. Further, the learned counsel also pointed out that in
the written statement as well as in additional written statement, the 1st and
2nd defendants admits the sale agreement, which is best evidence in respect
of execution of sale agreement. So also, the plaintiff proved his readiness
and willingness by issuing notice within a stipulated period. Therefore, the
facts were rightly appreciated by court below and the relief of specific
performance was rightly granted, which needs no interference by this court,
no substantial question of law involved. Hence, he prayed to dismiss these
Appeal Suits as no merit.
12. Considering both side submissions, the points for consideration
is as follows :-
(1) whether the trial judge erred in granting the relief of
specific performance in favour of plaintiff without
appreciating evidence adduced on the side of defendants 1 to
4?
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(2) Whether the trial court erred in declaring that
purchase made by defendants 5 and 6 are invalid and nonest
under law, since they are not bonafide purchaser?
(3) Whether the trial judge committed error in giving
findings that the plaintiff was put up in possession of the
property as per the terms of agreement amounts to part
performance of sale agreement, which requires the agreement
need to be registered one?
13. Considering both side submissions as well as considering both
oral and documentary evidence, it reveals that originally the plaintiff
approached the court for the relief of specific performance directing the
original defendant Murugan to execute the sale deed based upon the sale
agreement entered between them on 30.04.2006 marked as Ex.A5. The fact
also reveals that before the alleged sale agreement, father of plaintiff was
inducted as tenant in the suit property, besides, he has already purchased
the small portion of property from the original defendant and other co-
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owners, since the suit property is rear property and while conveyancing the
property earlier, he enjoyed the suit property as a tenant for a monthly rent.
On the date of suit, a sum of Rs.5250/- was paid as monthly rent and paid
rental advance of Rs.7 lakhs. The deceased 1st defendant also admits the
receipt of rental advance of Rs.7 lakhs. Immediately after the receipt of suit
notice, the original defendant Murugan filed a written statement on
22.11.2006. In his written statement, he admits the sale agreement with the
plaintiff, but expressed his inability to execute the sale deed stating that he
along with other co-owners mortgaged the property to third party prior to
the sale agreement and other co-owners/brother and sister are not
cooperating to discharge the mortgage, so, he is not able to execute the sale
deed. However, he is ready to repay the advance amount with bank
interest. Further, he would submit that the plaintiff is in possession of suit
property as a tenant and he demanded him to pay monthly rent. Aggrieved
that, he filed the present suit. Further, he has also expressed that he is ready
to sell the property to the plaintiff, provided plaintiff is required to
discharge the mortgage with regard to entire property. After filing of
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written statement, he died. His wife, 2nd defendant filed additional written
statement stating that most of the transaction made by her husband was not
known. After filing of impleading application, she came to know the other
conveyance made by her husband. She came to know that her husband
entered into sale agreement with the plaintiff. But, subsequently fifth
defendant said to be purchased the property with the knowledge of
plaintiff. Thereafter, inspite of the demand, the plaintiff refused to pay the
rent. Moreover, she is ready to return advance amount with interest.
Therefore, the defendants 1 and 2 admits the sale agreement, but as per the
submissions made by the 1st defendant, there was a mortgage debt in
respect of the suit property in the year 2009 itself, other co-owners/brother
and sisters including the 1st defendant Murugan borrowed loan and
executed a mortgage deed in favour of third party in the year 2004 itself,
but the family members have not cooperated to clear the debt. So, he is
unable to execute the sale deed in favour of plaintiff.
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
14. On perusal of records, in the month of August 2006, the suit was
filed. Before filing the suit, legal notice dated 25.07.2006 was issued by
one G.Rajan addressed to original defendant Murugan and his brother and
sister including Isaac Pandian, father of plaintiff stating that Murugan, his
sister and his brother and sisters mortgaged the property an extent of 1153
sq.ft. including the suit property through a registered mortgage deed dated
01.12.2004 and received Rs.3 lakhs agreed to repay with interest at the rate
of 18%, but suppressing the same, now attempted to alienate the property,
since the mortgage debt is not redeemed, he is having lien over the
property. Accordingly, he demanded to pay the loan amount as well as
directed the plaintiff's father Isaac Pandian not to cause any encumbrance
to any third party. Before filing of the suit, the plaintiff's father received a
notice from one third party G.Rajan, who informed about the registered
mortgage in respect of suit property and the same marked as Ex.A11 on the
side of plaintiff. The plaintiff had produced the said notice marked as
Ex.A11, though he was aware of that notice, not mentioned about the said
notice in its pleadings at the time of filing suit.
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
15. Admittedly, as per Ex.A11, it reveals that there was mortgage in
respect of suit property on 11.12.2004 itself before the alleged suit
agreement. In the written statement, original defendant Murugan also
claimed that there is a mortgage in respect of suit property executed by all
the co-owners, but due to non-cooperation, he is unable to clear the
mortgage debt and he has also contended that if the plaintiff is willing to
clear the debt and he is ready to execute the sale deed as per the agreement
and the said statement was filed by him within two months from the date of
filing of suit. For the said written statement filed by the original defendant
Murugan, there is no reply statement filed on the side of plaintiff nor
expressed either he would clear the mortgage debt nor he raised objections
about the said mortgage. But, the learned counsel for plaintiff would submit
that the defendant not disclosed about alleged mortgage at the time of sale
agreement.
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
16. Admittedly, the said mortgage is registered one and as per the
encumbrance certificate produced before the trial court would clearly
reveals that as per encumbrance certificate marked as Ex.A13 registered
mortgage is found entry in the encumbrance certificate. Admittedly, the said
mortgage is of the year 2004, since it is registered, it was found in the
encumbrance certificate. Therefore, the plaintiff, if really, he is a bonafide
purchaser, ought to verify all the encumbrance, in fact the said registered
mortgage was in force from the year of 2004 and it was not cleared even in
the year of 2006. There is no material evidence on the side of plaintiff that
he verified all the encumbrance before entering into the alleged sale
agreement. Therefore, the submissions made on the side of original
defendant Murugan that he is not able to execute the sale deed, in which he
along with his brother and sisters borrowed a sum of Rs.3 lakhs in respect
of mortgaging the suit property and due to non-cooperation of family
members, he was not able to redeem the same is acceptable one. Therefore,
he rightly expressed his inability and expressed that he is ready to return
the advance amount within two months in the year 2006 itself.
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
17. Moreover, after the receipt of notice from the mortgagee viz.,
G.Rajan, the plaintiff has not chosen to implead the said person nor he
made any whisper about the said mortgage debt, which was already
informed to him through a legal notice. However, he has sought alternative
remedy of refund of advance amount, which would implies that he is aware
of encumbrance over the suit property before filing of the suit itself.
Admittedly, it is a registered mortgage and as an ordinary prudent man, the
plaintiff ought to verify all the encumbrance before entering into the sale
agreement. But, his conduct shows that he has not entered into sale
agreement as a bonafide purchaser nor verified with any encumbrance and
there is no default on the side of original defendant as he is unable to
execute the sale agreement due to the existence of mortgage debt executed
by all the family members. Therefore, the plaintiff is not entitled to get the
relief of specific performance as an equitable remedy, the plaintiff is also
equally bound to prove to prove his case to avail the relief of specific
performance, inspite of expression made by the defendant by filing written
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
statement, the plaintiff neither filed reply statement nor proved that as a
bonafide purchaser he entered into sale agreement. Therefore, he is not
entitled to the relief of specific performance. But, without going into all
these facts and evidence, the trial judge erroneously held that the plaintiff is
entitled for the relief of specific performance as a bonafide purchaser. The
facts are not properly appreciated by the court below, the findings are
perverse, in such circumstances, this court is empowered to cause
interference in respect of the findings rendered by the court below.
Accordingly, the issue No.1 is decided that the plaintiff is not entitled for
the relief of specific performance.
18. Admittedly, the plaintiff was in possession of the suit property as
a tenant for a monthly rent, which is an undisputed fact. At the time of
filing the suit, in the year 2006, the monthly rent was Rs.5250/-, as on date,
the rent would comes around more than Rs.20,000/-, according to
defendants 5 and 6 after the purchase, they informed their purchase and
demanded him to pay rent, for which, he refused, hence, the original
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
defendant filed a petition in RCOP.No.39 of 2008. Furthermore, as on date,
the plaintiff not paid the rent and for that, the plaintiff assigned the reason
that on entering into sale agreement with the original defendant Murugan,
the alleged advance amount was paid by him a sum of Rs.7,00,000/- as
adjusted as part of sale consideration, thereby he was put in possession of
the property as part performance of the agreement. So, he is not entitled to
pay rent. As rightly pointed out by the learned counsel for
appellants/defendants, on the date of execution of sale deed, the alleged
advance amount could be treated as part of sale consideration, till then, he
is deemed to be a tenant, thereby he is bound to pay the rent. By way of
reply, the learned counsel for plaintiff would submit that as per clause 10 of
the sale agreement, the possession on tenancy was converted into absolute
possession as per the terms of agreement. Therefore, he need not pay any
rent and his possession is also valid one. But, during the life time of
Murugan, he demanded payment of rent, but the plaintiff is not inclined to
pay rent with ulterior motive.
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
19. The learned counsel for plaintiff also pointed out that defendants
4 and 5, alleged purchasers created anti-date sale agreement to defeat the
right of plaintiff with anti-date stamp paper and the same was rightly
appreciated by the courts below, thereby the alleged purchasers would not
have any lawful claim based on those sale agreements. It is true that the
trial court verified the stamp papers of alleged sale agreements and
observed that it is anti-dated one, but as discussed above, the plaintiff has
to prove his own case and not fall upon the case of defendants. Relief
claimed is discretionary one and independently, the plaintiff bound to prove
his claim, but he failed. Therefore, the objection raised on the side of
plaintiff is unsustainable one.
20. Furthermore, the plaintiff claiming protection under Sec.53A of
Transfer of Property Act, which prescribes as follows :-
“53A. Part performance
Where any person contracts to transfer for consideration
any immovable property by writing signed by him or on his
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
behalf from which the terms necessary to constitute the transfer
can be ascertained with reasonable certainty, and the
transferee has, in part performance of the contract, taken
possession of the property or any part thereof, or the
transferee, being already in possession, continues in possession
in part performance of the contract and has done some act in
furtherance of the contract,
and the transferee has performed or is willing to perform
his part of the contract,
then, notwithstanding that the contract, though required
to be registered, has not been registered, or, where there is an
instrument of transfer, that the transfer has not been completed
in the manner prescribed therefor by the law for the time being
in force, the transferor or any person claiming under him shall
be debarred from enforcing against the tranferee and persons
claiming under him any right in respect of the property of
which the transferee has taken or continued in possession,
other than a right expressly provided by the terms of the
contract:
Provided that nothing in this section shall affect the
rights of a transferee for consideration who has no notice of
the contract or of the part performance thereof.”
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
21. Per contra, the appellants in A.S.No.674 of 2017 by relying the
proposition laid down in 2018 (12) SCC 354 in the case of Commissioner
of Income Tax vs. Balbir Singh Maini, wherein the Hon'ble Apex
Court, after the Amendment Act of 2001 describe as follows :-
"17(1-A). The documents containing contracts to transfer for
consideration, any immovable property for the purpose of Section 53A of
the Transfer of Property Act, 1882 (4 of 1882) shall be registered if they
have been executed on or after the commencement of the Registration and
Other Related Laws (Amendment) Act, 2001 and if such documents are not
registered on or after such commencement, then they shall have no effect
for the purposes of the said Section 53A.”
“49. Effect of non-registration of documents required to be
registered.- No document required by Section 17 or by any provision of
the Transfer of Property Act, 1882 (4 of 1882), to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such
property or conferring such power,
unless it has been registered:
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
Provided that an unregistered document affecting immovable
property and required by this Act or the Transfer of Property Act, 1882 (4
of 1882), to be registered may be received as evidence of a contract in a
suit for specific performance under Chapter II of the Specific Relief Act,
1887 (1 of 1877) or as evidence of any collateral transaction not required
to be effected by registered instrument.”
Section 53-A, as is well known, was inserted by the Transfer
of Property Amendment Act, 1929 to import into India the equitable
doctrine of part performance. This Court has in Shrimant Shamrao
Suryavanshi & Anr. v. Pralhad Bhairoba Suryavanshi (D) by LRs. & Ors.,
(2002) 3 SCC 676 at 682 stated as follows:
“16. But there are certain conditions which are required to
be fulfilled if a transferee wants to defend or protect his possession
under Section 53- A of the Act. The necessary conditions are:
(1) there must be a contract to transfer for consideration of any
immovable property;
(2) the contract must be in writing, signed by the transferor, or by
someone on his behalf;
(3) the writing must be in such words from which the terms
necessary to construe the transfer can be ascertained;
(4) the transferee must in part-performance of the contract take
possession of the property, or of any part thereof;
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
(5) the transferee must have done some act in furtherance of the
contract; and (6) the transferee must have performed or be willing
to perform his part of the contract.”
It is also well-settled by this Court that the protection
provided under Section 53A is only a shield, and can only be resorted to
as a right of defence. See Rambhau Namdeo Gajre v. Narayan Bapuji
Dhgotra (Dead) through LRs. (2004) 8 SCC 614 at 619, para 10. An
agreement of sale which fulfilled the ingredients of Section 53A was not
required to be executed through a registered instrument. This position was
changed by the Registration and Other Related Laws (Amendment) Act,
2001. Amendments were made simultaneously in Section 53A of the
Transfer of Property Act and Sections 17 and 49 of the Indian Registration
Act. By the aforesaid amendment, the words “the contract, though
required to be registered, has not been registered, or” in Section 53A of
the 1882 Act have been omitted. Simultaneously, Sections 17 and 49 of the
1908 Act have been amended, clarifying that unless the document
containing the contract to transfer for consideration any immovable
property (for the purpose of Section 53A of 1882 Act) is registered, it shall
not have any effect in law, other than being received as evidence of a
contract in a suit for specific performance or as evidence of any collateral
transaction not required to be effected by a registered instrument."
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
22. Admittedly, the plaintiff's father entered into suit property as
tenant, subsequently claimed that not enjoyed the suit property as tenant.
Indeed, plaintiff claimed that he was put in possession as per the terms of
sale agreement of the year 2005, after the Amendment Act of 2001, hence,
Ex.A1 sale agreement requires valid registration, but the alleged sale
agreement is an unregistered one. Therefore, the concept of part
performance would not support him, but the trial court failed to appreciate
the said proposition of law properly. The authority relied on by the
appellant in A.S.No. 674 of 2017 squarely is applicable to the facts of the
case. Thus, the question of law No.3 is anwered.
23. In respect of other Appeal Suits filed by appellants/defendants 5
and 6 in A.S.Nos. 357 and 647 of 2018, they are claiming that they are
bonafide purchasers of the suit property from the 1st defendant for a valid
consideration. But, the trial court on considering the evidence adduced on
the side of plaintiff as well as on record, found that prior to the purchase,
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
the alleged sale agreements were fraudulently created, to that effect, the
trial judge had framed separate issues and finally held that based on the
evidence of P.W.3, Junior Assistant in the office of Sub-Treadury, Kayathar,
Thoothukudi District as well as information given by Treasury Officer,
Tirunelveli Ex.A21 under Right to Information Act in respect of issuance of
stamp papers pertaining to Ex.B1, Sale agreement dated 18.10.2005 relied
on by 5th defendant and based on that, subsequently Ex.A16 Sale deed was
executed in favour of 5th defendant by 1st defendant on 28.07.2008. But, as
per the evidence given by the Treasury Officials, stamp paper pertaining to
the said sale agreement dated 18.12.2005 (Ex.B1), the non-judicial stamp
sale registers Ex.A22 to Ex.A24 reveals that two stamp papers bearing
Sl.No.19AA000001 to Sl. No.19AA 115 000 were supplied to their office
only on 02.08.2007 and subsequently it was sold to stamp vendor on
22.02.2008. To that effect, they relied the receipts for payment made
marked as Ex.A27 and Ex.A28. Therefore, the stamp paper used in the
alleged sale agreement Ex.B1 was fraudulently created with anti-date
18.12.2005 was purchased from the Thoothukudi Registry stamp vendor by
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
name Karthikeyan, who was given stamp paper in the year 2008. Therefore,
the alleged sale agreement relied on by 5th defendant was proved as not true
and invalid one. Based on that, the subsequent sale deed was executed,
which shows lesser market value and also the said sale deed Ex.A16 was
fraudulently executed during the pendency of the suit, the learned judge
held that it is suffered by principles of lispendence. Therefore, the aforesaid
oral and documentary evidence would clearly show that 5th defendant is not
a bonafide purchaser, who is appellant viz. Govindan in A.S.No. 357 of
2018. To that effect, the findings rendered by the trial judge needs no
interference.
24. So also, in respect of purchase made by 6th defendant through the
sale deed dated 29.01.2008, but claimed that he purchased 80 sq.ft. of
undivided share of land with superstructure in ground floor out of the suit
property through Ex.B3 dated 29.05.2008 and pleaded that already he
enjoyed the same. Admittedly, he has also said to have purchased the
property during the pendency of proceedings after filing the written
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
statement by the 1st defendant. Therefore, his plea of bonafide purchase for
a valid consideration without notice of the sale agreement Ex.A5 was not
accepted by the trial judge and it is also attracted by Sec.52 of Transfer of
Property Act denotes for Pendate lite. Therefore, in respect of both
purchase, the learned counsel for defendants 2 to 4/legal heirs of original
defendant claimed that these two defendants also manipulated the records
fraudulently in order to grab the property and created all these agreements.
Considering on fact as well as on law, the plaintiff not established that as he
is a bonafide purchaser, he entered into sale agreement with original
defendant Murugan. So also the conduct of defendants 5 and 6 reveals that
they are not bonafide purchasers. Hence, the findings rendered by the trial
court, to that effect needs no interference, thereby Appeal Suits filed by
them are liable to be dismissed. Accordingly, the question of law No.2 is
answered.
25. Moreover, in the year 2006 itself, the plaintiff is not inclined to
pay the rent. So, as discussed above, as a bonafide purchaser, the plaintiff
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
not entered into the alleged sale agreement and also not paid the rent,
hence, he is deemed to be in unlawful occupation of the property.
Therefore, the legal heirs of deceased original defendant need not comply
the terms of agreement. However, there was a sale agreement entered
between the parties and the alleged advance amount also admitted by the
defendants 2 to 4. Hence, the plaintiff is entitled for refund of rental
advance amount of Rs.7,00,000/- + Rs.2,00,000/- paid on the date of
alleged sale agreement, totally a sum of Rs.9,00,000/-. Eventually, In
respect of alternative remedy, the plaintiff claimed refund of advance
amount of Rs.9,00,000/- together with interest at the rate of 18% from the
date of alleged agreement, but as on date, he enjoyed the property without
paying the rent all these years and moreover, it is located in a prime
locality, which would fetch a sum of Rs.20,000/- as rent. Hence, the
plaintiff is not entitled for the interest for the advance amount and he is
entitled only refund of total advance amount of Rs.9,00,000/- without any
interest. Therefore, all the defendants 2 to 4 are jointly directed to refund
the advance amount of Rs.9,00,000/- within a period of eight weeks from
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A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
the date of receipt of copy of this judgment. On receipt of said advance
amount, immediately the plaintiff is directed to hand over possession of
property to the defendants 2 to 4 in A.S.No. 674 of 2017 forthwith.
26. Thus, in respect of specific performance, Suit is dismissed.
Accordingly, the Appeal Suit filed by defendants 2 to 4 in A.S.No.674 of
2017 is allowed and to that effect, the findings rendered by the trial judge is
set aside. The other two Appeal Suits filed by defendants 5 and 6 in
A.S.Nos. 357 and 647 of 2018 respectively are dismissed and to that effect,
the findings given by the trial judge in O.S.No. 309 of 2006 is confirmed.
The alternative remedy of advance amount of Rs.9,00,000/- without interest
is granted. No costs. Consequently, the connected Civil Miscellaneous
Petitions are closed.
29.01.2025
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
Addl. District Judge, Kancheepuram at Chengalpattu.
https://www.mhc.tn.gov.in/judis
A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
T.V.THAMILSELVI, J.
rpp
A.S.No. 674 of 2017 &
A.S.Nos. 357 & 647 of 2018
29.01.2025
https://www.mhc.tn.gov.in/judis
