Madras High Court
Thangathai vs Jeyachandran on 22 July, 2025
S.A.(MD)No.223 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 22.07.2025
CORAM
THE HON'BLE MR.JUSTICE G.ARUL MURUGAN
S.A.(MD)No.223 of 2018
Thangathai ... Appellant/Appellant/
Defendant
2.Hemalatha
3.Raja
4.Thiketha
5.Devitha
6.Mutheesh ... Appellants
(Appellants 2 to 6 are brought on record
as LRs of the deceased sole appellant
vide order dated 01.02.2022 made in
C.M.P.(MD)Nos.97 and 98 of 2022)
vs
Jeyachandran ...Respondent/Respondent/
Plaintiff
PRAYER: Second Appeal is filed under Section 100 of the Code of Civil
Procedure, against the judgment and decree dated 03.07.2017, passed in
A.S.No.8 of 2014, on the file of the Additional District and Sessions Court,
Theni at Periyakulam, by confirming the judgment and decree, dated
12.11.2013, passed in O.S.No.15 of 2010, on the file of the Subordinate
Court, Uthamapalayam.
1/13
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S.A.(MD)No.223 of 2018
For Appellants : Mr.K.Guhan
For Respondent : Mr.M.Karuppasamy Pandian
*****
JUDGMENT
The defendant is before this Court on appeal.
2. The Second Appeal is filed challenging the judgment and decree,
dated 03.07.2017, in A.S.No.8 of 2014, on the file of Additional District and
Sessions Court, Periyakulam, confirming the judgment and decree, dated
12.11.2013, in O.S.No.15 of 2010, on the file of the Subordinate Court,
Uthamapalayam.
3. For the sake of convenience, the parties are referred to as per the
litigative status before the trial Court.
4. It is the case of the plaintiff that the defendant is the absolute
owner of the suit property. The plaintiff had entered into a sale agreement
with the defendant on 20.07.2009 agreeing to purchase the suit property for
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a sale consideration of Rs.1,50,000/- and an advance of Rs.1,00,000/- was
paid on the same day. The balance sale consideration of Rs.50,000/- is to be
paid at the time of completion of the sale. Time period of one year was
fixed for completing the sale transaction. It is the further case of the
plaintiff that he was ready with the balance sale consideration and willing to
get the sale deed executed in his favour and since several requests made by
the plaintiff asking the defendant to come and complete the sale by
receiving the balance sale consideration did not materialise, he issued a
legal notice on 16.02.2010, calling upon the defendant to be present in the
Sub-Registrar office at Cumbum on 25.02.2010. The plaintiff was waiting
in the Sub-Registrar office on 25.02.2010 with the balance sale
consideration of Rs.50,000/- and complete the sale. However, the
defendant did not turn up. But the defendant has issued a reply on
18.02.2010 with false averments denying the sale agreement. As such, the
plaintiff has come with the suit for specific performance.
5. The defendant resisted the suit disputing the sale agreement.
According to the defendant, since she was in need of money for her family
expenses, she had availed a loan from the plaintiff for a sum of
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Rs.1,00,000/-, agreeing to repay with interest. The plaintiff is carrying on
finance business by giving money at higher rate of interest. Since the
defendant is an illiterate, the plaintiff had created a fabricated document by
using the document given for receipt of loan, as a sale agreement. Even
though, the defendant sought for a sum of Rs.1,00,000/-, only a sum of
Rs.70,000/- was given and further, a sum of Rs.5,000/- as interest for four
months totally Rs.20,000/- has been paid. Since there was a default in
payment of a month's interest, the plaintiff had created the fabricated sale
agreement and had filed the suit and thereby sought for dismissal of the suit.
6. During trial, the plaintiff examined himself as P.W.1 and the
attestor in Ex.A.1 as P.W.2 and the scribe as P.W.3 and marked Exhibits
A.1 to A.4. On the side of the defendant, the defendant had examined
herself as D.W.1 and her daughter, who is another attestor in Ex.A.1 as
D.W.2, but has not marked any documents.
7. The trial Court, after analysing the evidences, came to the
conclusion that the sale agreement in Ex.A.1 has been proved by the
examination of attestor and the scribe as P.W.2 and P.W.3. The trial Court
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also came to the conclusion that the plaintiff had proved his readiness and
willingness in performing his part of the contract and when the defendant
had not disputed the signatures in Ex.A.1, had only sought to contend that it
is a document executed for a loan transaction, but however had failed to
establish such a claim. The suit came to be decreed. On appeal, the lower
appellate Court re-appraises the evidences and on finding that when the
defendant claimed that Rs.20,000/- was paid towards interest, no receipts or
documents have been marked and the non-availability of such receipts, has
also been admitted by D.W.1 and further on concluding that since D.W.2 –
daughter of the defendant, who is also an attestor, had admitted that she is a
literate and well educated, disbelieved the claim of the defendant that they
were not aware of the contents in Ex.A.1 and dismissed the appeal,
confirming the judgment and decree of the trial Court. Assailing the
concurrent findings of fact, the defendant had preferred the above Second
Appeal.
8. The Second Appeal has not been admitted and only notice has been
ordered to the respondent.
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9. The learned Counsel appearing for the appellants argued that the
defendant being an illiterate person, had availed the loan from the plaintiff
and the documents have been misused by preparing the sale agreement and
as such, Ex.A.1 is not executed towards the sale transaction. It is his further
contention that when D.W.2, who is also an attestor in Ex.A.1, did not
support the case of the plaintiff, the Courts below had erroneously come to
the conclusion that the sale agreement in Ex.A.1 stood proved. The learned
Counsel further contended that when a sum of Rs.1,00,000/- was given as
advance, there was no reason for the plaintiff to take seven months time for
paying the balance sale consideration, even though the time of one year is
fixed in the agreement. The learned Counsel further submitted that when
the onus was on the plaintiff to prove, the Courts below have relied on the
weaknesses in the case of the defendant stating that the receipts towards
interest has not been produced and therefore, the findings rendered are
perverse and sought for intereference of this Court.
10. Contending contra, the learned Counsel for the respondent argued
that the plaintiff had proved the sale agreement in Ex.A.1 by the evidence
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of P.W.1 to P.W.3. When the sale agreement stands proved and the
defendant had not disputed the signature, however contends that it is
towards loan transaction, the onus is on the defendant to prove otherwise.
The defendant had miserably failed to let in any evidence in this regard and
the plaintiff having proved the agreement and also established that he was
ready and willing to complete the sale, the Courts below have rightly
decreed the suit, which needs no intereference and sought for dismissal of
the appeal.
11. Heard the rival submissions and perused the materials available
on record.
12. Admittedly, the defendant is the owner of the suit property. The
plaintiff had filed the suit for specific performance, based on the sale
agreement executed on 20.07.2009 in Ex.A.1. A perusal of the sale
agreement reveals that a sale consideration of Rs.1,50,000/- has been fixed
and an advance amount of Rs.1,00,000/- has been paid on the date of
execution of Ex.A.1. The time period of one year has been fixed for paying
the balance sale consideration of Rs.50,000/- and complete the sale
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transaction. Admittedly, as per the sale agreement, the time period of one
year expires only on 19.07.2010.
13. The plaintiff, even though had sought the defendant to receive the
balance sale consideration and execute the sale deed, did not come forward,
had issued a legal notice on 16.02.2010, in Ex.A.2. As per notice in Ex.A.2,
the plaintiff has called upon the defendant to be present in the Sub-Registrar
office on 25.02.2010, to receive the balance sale consideration and execute
the sale deed. In this regard, the plaintiff had been present in the Sub-
Registrar office on 25.02.2010 as intimated through the legal notice in
Ex.A.2 and the defendant had not turned up to execute the sale deed. To
prove that the plaintiff was ready and willing and he was present in the Sub-
Registrar office along with the balance sale consideration, he had applied
and got the encumbrance certificate on that day and the same has been filed
in Ex.A.4. Further it has to be noted that immediately since the defendant
had not turned up, the plaintiff had filed the suit on 09.03.2010 itself and
had also deposited the balance sale consideration in the Court. From the
documents filed by the plaintiff, it is evident that the sale agreement in
Ex.A.1, which has been executed on 20.07.2009 and inspite of legal notice
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being issued, the defendant did not turn up to complete the sale deed on
25.02.2010. The plaintiff had obtained the encumbrance certificate and
immediately filed the suit and made the deposit and thereby the plaintiff had
established that he was ready and willing to perform his part of contract.
14. Further, to prove the sale agreement in Ex.A.1, the plaintiff has
examined himself as P.W.1 and the attestor in the agreement as P.W.2 and
also the scribe of the agreement as P.W.3. P.W.2 had supported the case of
the plaintiff and had given evidence to the effect that the sale agreement in
Ex.A.1 has been executed on payment of advance amount, agreeing to
convey the suit property by the defendant. P.W.3 – scribe had also given a
cogent evidence in line with P.W.2 and also P.W.1 and had stated that he
had read over the agreement to the defendant and the defendant agreeing to
the same, had signed the agreement in Ex.A.1 and thereby the sale
agreement was executed on payment of advance. From the evidence of
P.W.1 to P.W.3, the sale agreement in Ex.A.1 stands proved.
15. It is the only case of the defendant that even though the signature
in the agreement in Ex.A.1 is not disputed, but however, it has been given
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only for the purpose of availing loan. The defendant has contended that she
had availed a loan of Rs.1,00,000/- from the plaintiff, out of which only a
sum of Rs.70,000/- was given and after receiving the loan amount, the
defendant had paid interest at Rs.5,000/- per month for four months and
totally a sum of Rs.20,000/- has been paid to the plaintiff. Even though the
defendant had made such a claim, as rightly noted down by the lower
appellate Court, the defendant has not produced any receipts or examined
anyone to prove that this sum of Rs.20,000/- has been paid by the defendant
as interest to the plaintiff. Further when the onus was on the defendant to
establish the fact that the document in Ex.A.1 was executed towards loan
transaction, when particularly the defendant had admitted the signature, the
defendant miserably failed to produce any evidence in this regard.
16. Further it is the specific case of the defendant that since she was
an illiterate, she was not aware of the contents in the agreement in Ex.A.1,
her daughter, who was also an attestor in Ex.A.1, has been examined as
D.W.2. D.W.2, in her evidence, had admitted that she is a literate and well
educated and therefore, when D.W.2 had herself stood as an attestor
witnessing the sale agreement in Ex.A.1, there was no possibility for the
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plaintiff for having created the sale agreement in Ex.A.1. The defence that
the defendant was not aware of the contents, is falsified by the fact of
admission of D.W.2. When the plaintiff had proved the sale agreement in
Ex.A.1 through the witnesses of P.W.1 to P.W.3 and also has proved his
readiness and willingness in completing the same in marking the documents
in Exs.A.2 and A.4 and further immediately on issuance of the legal notice,
the plaintiff had filed the suit and had also deposited the balance sale
consideration in the Court, the defendant, who had denied the agreement
and contended that it is towards the loan transaction, had not established the
claim made by her.
17. The Courts below had rightly come to the conclusion that the
plaintiff having proved the agreement in Ex.A.1, is entitled for the decree of
specific performance and had rightly decreed the suit. This Court does not
find any illegality or perversity in the concurrent findings arrived at by the
Courts below. No question of law, much less a substantial question of law
arises for consideration in the Second Appeal.
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18. Accordingly, the Second Appeal stands dismissed. However,
there is no order as to costs.
22.07.2025
Internet :Yes/No
Index :Yes/No
NCC :Yes/No
SSL
To
1.The Additional District and Sessions Court, Theni at Periyakulam.
2.The Subordinate Court, Uthamapalayam
3. The Record Keeper,
V.R.Section,
Madurai Bench of Madras High Court,
Madurai.
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G.ARUL MURUGAN, J.
SSL
Judgment made in
22.07.2025
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