This is an Appeal filed by the 1st Defendant in O.S. No. 14 of 2009 to set
aside the Judgment and Decree dated 12.07.2010 passed thereof by the learned
2. The first Respondent in this appeal, as Plaintiff, has filed the suit
in O.S. No. 14 of 2009 for the relief of specific performance by directing the
Defendants 1 to 3 to execute a sale deed conveying due title in respect of the
plaint scheduled property in favour of the Plaintiff by accepting the balance
sale consideration of Rs.2,50,000/- within a period as may be directed by the
Court and in default the Court may be pleased to execute the sale deed and to
cause registration of the same in favour of the Plaintiff; to direct the
Defendants to deliver symbolic possession of the plaint scheduled property to
the Plaintiff through process of law; consequently to pass a decree for
permanent injunction restraining the Defendants 1 to 3 from dealing and
encumbering the plaint described properties in any manner other than that
specified in the suit agreement deed dated 17.07.2008 and for costs.
3. For the sake of convenience, the parties shall be referred to as per
their litigative status in the suit as 'Plaintiff' and 'Defendants'.
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4. The brief facts, which are necessary for the disposal of this
Therefore, the first Defendant entered into an agreement of sale with the
Plaintiff on 17.0.2008. As per the agreement dated 17.07.2008, the first
Defendant agreed to sell the plaint scheduled property to the Plaintiff along
with his mother and sister viz., Defendants 2 and 3 for a sum of Rs.6,00,000/-.
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On the date of agreement on 17.07.2008, the first Defendant also received
Rs.1,55,000/- as advance from the Plaintiff and agreed to receive the balance
sale consideration of Rs.4,45,000/- within a period of three onths from the date
of the agreement dated 17.07.2008 by producing all the title deeds, parents
deeds, encumbrance certificate etc., According to the Plaintiff, at the time
when the agreement of sale dated 17.07.2008 was executed, the second
Defendant was admitted in Apollo Hospital, Chennai as an in-patient and
taking treatment for her ailment and the third Defendant was staying with the
second Defendant in the hospital. As the Plaintiff was aware of the fact that
the second Defendant was hospitalised and the third Defendant was looking
after the second Defendant, he did insist the execution of the agreement of sale
4.2. According to the Plaintiff, after receipt of Rs.1,55,000/- on
17.07.2008, the first Defendant received various amounts from the Plaintiff.
To be specific, on 31.07.2008 a sum of Rs.50,000/- was received by the first
Defendant from the Plaintiff. Similarly, on 04.08.2008, Rs.25,000/- was
received. On 05.08.2008 and 25.08.2008 Rs.20,000/- and Rs.10,000/-
respectively were received. Further, on 26.08.2008 a sum of Rs.25,000/- was
received and on 11.10.2008 Rs.20,000/- was received. All the aforesaid
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receipt of amount were duly acknowledged in writing on the back side of the
agreement of sale dated 17.07.2008. Thus, a total sum of Rs.3,05,000/- out of
4.3. According to the Plaintiff, he was always ready and willing to pay
the balance sale consideration and to get the sale deed executed in his name.
However, the Defendants were evasive and refuse to come forward to execute
the sale deed. As the acts of the Defendants are detrimental to the interest of
the Plaintiff, as an agreement holder, on 17.11.2008, he has taken a paper
publication in local Daily Dhina Malar informing the general public that he
has entered into an agreement of sale dated 17.07.2008 with the Defendants
and he has a right to purchase the property in question. Subsequently, on
17.11.2008, the Plaintiff had sent a notice to the Defendants calling upon them
to receive the balance sale consideration and to execute the sale deed in his
favour. On receipt of the notice, on 21.11.2008, the first Defendant sent a
reply stating that the value of the plaint scheduled property is manifold than
the agreed amount and therefore, the first Defendant is ready and willing to
repay the advance amount received by him. According to the Plaintiff, after
sending the reply notice, the Defendants attempted to alienate the property in
question and therefore, he has filed the suit for specific performance.
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4.4. On notice, the first Defendant filed a written statement contending
inter alia that Dr. Mohamed Ismail, father of the first Defendant was the
owner of the plaint scheduled property and after his death, the property
devolved on the Defendants. The suit property was not in possession of the
Plaintiff, as alleged. As regards the agreement of sale dated 17.07.2008, it was
stated that the Plaintiff cannot seek for the relief of specific performance as
there was no agreement of sale deed entered into by the first Defendant with
an intention to alienate the plaint scheduled property. The mother of the first
Defendant was admitted in N.M.O. Hospital, Puducherry and she was in
intensive care unit for treatment. In order to meet the medical expenses, the
first Defendant approached the Plaintiff, who is none other than his uncle, to
pay money. Further, the first Defendant is not the exclusive owner and he has
no saleable right to convey the property to the Plaintiff. This is the only
property available for the first Defendant to be shown as a security for prompt
repayment of the loan amount and at no point of time the first Defendant
agreed to sell the suit property to the Plaintiff. As on the date of the agreement
dated 17.07.2008, the plaint scheduled property was worth Rs.70 lakhs and no
illiterate person could agree to sell it for Rs.6 lakhs. The first Defendant also
stated that he is ready and willing to repay the sum of Rs.3,05,000/- received
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from the Plaintiff. It was also stated that the suit agreement can be construed
as a contingent contract and such contract is not enforceable under law. The
suit filed as against the Defendants 2 and 3 are not maintainable especially
when they are not parties to the so-called agreement of sale dated 17.07.2008.
A suit for specific performance cannot be maintained against the persons who
are not parties to the agreement. The Plaintiff, who has advanced loan amount
of Rs.3,05,000/- on various dates is greedy to snatch away the prime property
for a throw away price. The Defendants are in possession of the property in
question. At no point of time, the Plaintiff was in possession of the property.
Further, the second Defendant settled her share in the suit property to the third
Defendant on 18.09.2008 and the settlement deed was also accepted and acted
upon. In such circumstances, the suit is not maintainable and it is liable only
to be dismissed. Accordingly, the first Defendant prayed for dismissal of the
4.5. Before the Trial Court, the Plaintiff examined himself as P.W-1
and one V. Ashok Kumar as P.W-2 and marked 15 documents on his side as
Exs. A-1 to Ex.A-15. On behalf of the Defendants, the first Defendant
examined himself as D.W-1 but no document was marked. The trial court, on
analysing the oral and documentary evidence, concluded that the agreement of
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sale, Ex.A-1 entered into between the Plaintiff and first Defendant is legally
enforceable. However, the agreement of sale, under Ex.A-1 was not signed by
the Defendants 2 and 3 who have also got a share in it. Therefore, it was held
that Ex.A-1 is valid only in respect of one half share of the first Defendant. As
far as the plea that the property was valued at Rs.75 lakhs and the agreement
was entered into only for Rs.6 lakhs, it was observed that such a plea cannot
be gone into after execution of the agreement of sale with open eyes. When
once the agreement vendor was satisfied with the consideration agreed on the
date of execution, he is bound by it and he cannot go against the same.
Accordingly, the Trial Court passed a Preliminary Decree for partition and
(v) The first Defendant is directed to execute the sale deed of
his one-half share in the suit property allotted to him in the final
decree.
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(vi) In case the first Defendant fails to execute the sale deed in
respect of his one-half share in the suit property allotted to him in the
final decree within two months from the date of passing of the final
decree, the Plaintiff is allowed to get the sale deed executed for the
Plaintiff's half share through Court and the Plaintiff is entitled to get
delivery of that property from the first Defendant in execution of this
decree
(vii) The suit against the Defendants 2 and 3 is dismissed
without costs.
(viii) Considering the relationship between the parties and the
facts and circumstances of the case, both parties are directed to bear
their own costs.”
4.6. Aggrieved by the Judgment and Decree dated 12.07.2010 passed
in O.S. No. 14 of 2009, the present Appeal Suit is preferred by the first
Defendant.
5. Ms. Mitraneshaa, B.S., learned Counsel, representing
Mr.V.Raghavachari, learned Counsel appearing for the Appellants submitted
that it is the contention of the Plaintiff that the sale agreement was executed to
provide access to the Plaintiff's property. In other words, the Plaintiff claimed
access to his property through the Defendant's property. The first Defendant
in the suit is the elder brother's son of the Plaintiff. The second Defendant is
the elder brother's wife of the Plaintiff and the mother of first Defendant. The
third Defendant is the elder brother's daughter of the Plaintiff and the daughter
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of second Defendant. It is the contention of the learned Counsel for the
Appellants that the Plaintiff sought the relief of specific performance of
contract for sale of the property. The agreement of sale, Ex.A-1 was executed
only by the first Defendant. The agreement of sale under Ex.A-1 was not
signed by the Defendants 2 and 3, who have also got a share in the suit
property. Further, it is an admitted fact that the plaint scheduled property was
not divided among the Defendants and it remain undivided at the time of
entering into the agreement of sale under Ex.A-1. Therefore, the Trial Court,
rightly dismissed the suit as against the Defendants 2 and 3 and the
preliminary decree was confined only in respect of the share of the first
Defendant.
6. The learned Counsel for the Appellants further submitted that
even in the plaint, the Plaintiff has referred to the ailment of the second
Defendant and the treatment extended to her in the hospital. Therefore, the
defence of the first Defendant that the amount was borrowed only as a loan to
meet the hospital expenses of the second Defendant is probable and
reasonable. The Plaintiff, as paternal uncle of first and third Defendant and
brother-in-law of second Defendant financially assisted the first Defendant.
Further, after filing of the suit, the first Defendant was always willing to settle
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the dues to the Plaintiff. However, the Plaintiff declined to receive the
amount. Even during trial, when the Plaintiff was examined as P.W-1, he had
expressed his intention to get the sale deed executed in respect of the plaint
scheduled property. On the other hand, the first Defendant during the course
of his examination has asserted that he is ready and willing to pay the amount
received as loan from the Plaintiff.
7. The learned Counsel for the Appellants further submitted that the
suit was filed for specific performance. The suit was opposed by the first
Defendant on the ground that the transaction between the Plaintiff and the first
Defendant is only a loan transaction and the first Defendant never consented to
sell the suit property. Further, the suit property was valued at Rs.70 lakhs
while so, even if there is any pressing urgency, no one will attempt to sell the
property worth about several lakhs for a paltry sum of Rs.6 lakhs. Further, the
suit agreement of sale under Ex.A-1 was signed only by the first Defendant
and therefore, the sale of the property would deprive the right, title and interest
of the Defendants 2 and 3. On the basis of such pleading, the trial court,
instead of dismissing the suit, has proceeded to pass a preliminary decree for
partition of the property by metes and bounds, which was not even prayed for
by the Plaintiff. Thus, the trial court has exceeded it's jurisdiction and granted
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relief which is beyond the scope of the suit. There was no issue framed as to
whether the Plaintiff is entitled for a partition of the plaint scheduled property
and consequently the first Defendant has no option to deny the right of the
Plaintiff to seek for a partition of the plaint scheduled property. It is true that
the first Defendant was in dire need of money and taking advantage of the
same, the Plaintiff with an deceitful intention obtained the signature of the first
Defendant in certain documents purported to be a security for the loan. The
first Defendant, reposing faith and confidence in his maternal uncle, the
Plaintiff, signed the dotted lines. However, much to the chagrin of the first
Defendant, the Plaintiff claimed it to be an agreement of sale. On coming to
know about the unlawful claim of the Plaintiff, the first Defendant repudiated
it in the reply notice dated 21.11.2008. In the reply notice, it was clearly stated
that the mother of the first Defendant was admitted in the hospital and to meet
the medical expenses, amount was borrowed from the Plaintiff. The first
Defendant also filed written statement reiterating the facts which he had
already mentioned in his reply notice. Thus, the Plaintiff has filed the suit by
misusing the signature of the first Defendant, while so, a person like the first
Defendant is not entitled to the equitable relief of specific performance. This
was not taken note of by the Trial Court while passing the preliminary decree
for partition and specific performance. Even though Plaintiff had not sought
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partition, the Trial court granted such relief, which is against the provisions of
the Specific Relief Act.
8. In support of her contentions the the learned Counsel for the
Appellants invited the attention of this Court to Section 22 of the Specific
Relief Act which is extracted as under:
“22. Power to grant relief for possession, partition, refund of
earnest money, etc.—
(1) Notwithstanding anything to the contrary contained in the
Code of Civil Procedure, 1908 (5 of 1908), any person suing for the
specific performance of a contract for the transfer of immovable
property may, in an appropriate case, ask for—
(a)possession, or partition and separate possession, of the
property, in addition to such performance; or
(b)any other relief to which he may be entitled, including the
refund of any earnest money or deposit paid or made by him, in case
his claim for specific performance is refused.
(2) No relief under clause (a) or clause (b) of sub-section (1)
shall be granted by the court unless it has been specifically
claimed:Provided that where the Plaintiff has not claimed any such
relief in the plaint, the court shall, at any stage of the proceeding, allow
him to amend the plaint on such terms as may be just for including a
claim for such relief.
(3)The power of the court to grant relief under clause (b) of sub-
section (1) shall be without prejudice to its powers to award
compensation under section 21.”
9. The learned Counsel for the Appellants also invited the attention
of this Court to the issues framed by the learned Principal District Judge,
Pondicherry as follows:-
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1.Whether there is any sale agreement between the first
Defendant and the Plaintiff on 17.07.2008 regarding the suit schedule
property?
2.Whether the Plaintiff has filed the suit within time?
3.Whether the suit is maintainable?
4.Whether the Plaintiff is entitled for permanent injunction
against the Defendants?
5.To what other relief the Plaintiff is entitled for?
10. Thus, even without framing an issue, the Trial Judge had
erroneously granted a relief of partition and separate possession of the share of
the first Defendant. Further, while answering the issues 1 and 2, the learned
Trial Judge had discussed and decided them in favour of the Plaintiff.
Similarly, the other issues 3 to 5 were elaborately discussed in the light of
several decisions relied on by the Counsel for the Plaintiff and arrived at a
conclusion that the suit as against the Defendants 2 and 3 is liable to be
dismissed. In any event, without a prayer for partition and separate possession
the Judgment and Decree granted by the Trial Court is per se erroneous.
Instead of granting a relief of partition, the Trial Court could have directed the
Plaintiff to amend the plaint in which event, the first Defendant would have
got an opportunity to defend the suit accordingly. However, without even
framing an issue, the learned Trial Judge granted a decree for partition, which
is beyond the scope of the suit filed by the Plaintiff for the relief of specific
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performance.
11. The learned Counsel for the Appellants submitted that the
property in question was worth about 70 lakhs even as on the date when Ex.A-
1, agreement of sale dated 17.07.2008 was executed. It is situated in a prime
location in the heart of Puducherry. While so, no prudent owner would offer
to sell such a property for a throw away price of Rs.6 lakhs. Thus, it is evident
that the Plaintiff only attempted to grab the property by taking advantage of
the financial doldrums confronted by the first Defendant to treat his ailing
mother, the second Defendant. This was not properly taken note of by the
Trial Court while passing a preliminary decree in the suit. In fact, the first
defendnat, as D.W-1, has specifically stated that he has no intention to alienate
the property by executing a sale deed in favour of the Plaintiff. Further, he has
obtained the amount on various dates and offered the property as a security.
While so, the Trial Court ought not to have passed a preliminary decree for
partition and separate possession in favour of the Plaintiff.
12. In support of her contentions, the learned Counsel appearing for
the Appellants relied on the following decisions:
(i) In the case of Messrs. Trojan & Company -vs- RM. N.N.
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Nagappa Chettiar reported in 1953 SCR 789 wherein the Hon'ble Supreme
Court had held as follows:
“22. The second question canvassed before the High Court and also
before us was in respect of the Associated Cement shares. As abovestated,
the Plaintiff's account was credited in the sum of Rs 6762-8-0 on account of
the purchase of these shares. The Plaintiff had pleaded that the transaction
was not authorised by him and that it had been made in contravention of his
instructions. He had claimed compensation on the ground of breach of
instructions; he did not in the alternative claim on the ground of failure of
consideration the amount credited by the Defendants in the promissory note
account and which credit disappeared by reason of the failure of the suit on
the promissory note. At the hearing of the case before Bell, J. the contention
that the purchase was unauthorised was abandoned by the Counsel and the
same position was adopted before Clark, J. During cross-examination of the
Plaintiff it was elicited that he either instructed the Defendants to purchase
the shares or at any rate ratified the purchase which the Defendants had
made on his behalf. It was argued before the Appellate Bench of the High
Court that having pleaded one thing and having led evidence in support of
that thing but later on having been forced to admit in the witness box that the
true state of things was different the Plaintiff had disentitled himself to relief
as regards these shares and he could not be granted the relief that he had
not asked for. The High Court negatived this contention on the ground that
though a claim for damages in respect of a particular transaction may fail,
that circumstance was no bar to the making of a direction that the
Defendants should pay the Plaintiff the money actually due in respect of that
particular transaction. It also held that the Plaintiff's claim in respect of this
item of Rs 6762-8-0 was within limitation. We are unable to uphold the view
taken by the High Court on this point. It is well settled that the decision of a
case cannot be based on grounds outside the pleadings of the parties and it
is the case pleaded that has to be found. Without an amendment of the plaint
the court was not entitled to grant the relief not asked for and no prayer was
ever made to amend the plaint so as to incorporate in it an alternative case.
The allegations on which the Plaintiff claimed relief in respect of these
shares are clear and emphatic. There was no suggestion made in the plaint
or even when its amendment was sought at one stage that the Plaintiff in the
alternative was entitled to this amount on the ground of failure of
consideration. That being so, we see no valid grounds for entertaining the
Plaintiff's claim as based on failure of consideration on the case pleaded by
him. In disagreement with the courts below we hold that the Plaintiff was
wrongly granted a decree for the sum of Rs 6762-8-0 in respect of the
Associated Cement shares in this suit. Accounts settled could only be
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reopened on proper allegations.”
(ii) In the case of P.C.Varghese -vs- Devaki Amma Balambika Devi and
other reported in (2005) 8 SCC 486 wherein this Court held as follows:
“31.The Trial Court not only granted a decree for specific
performance of contract but also a preliminary decree for partition.
32.The submission of Mr. Reddy to the effect that the learned Trial Judge
committed a serious error in granting a decree for partition along with a
decree for specific performance of contract need not detain us long as in
view of Section 22(1)(a) of the Act a decree for partition and separate
possession of the property can be granted in addition to a decree for specific
performance of contract. As in this case, the Appellant herein in view of
amended prayer 'C' relinquished his claim in respect of the property
belonging to the minor - Respondent No. 4, he also prayed for a decree for
partition and such a prayer having been allowed, no exception thereto can
be taken. In any event, the said question has not been raised by the
Respondents before the High Court at all. Section 22 enacts a rule of
pleading that in order to avoid multiplicity of proceedings, the Plaintiff may
claim a decree for possession and/ or partition in a suit for specific
performance. Even though strictly speaking, the right to possession accrues
only when a suit for specific performance is decreed, indisputably such a
decree for possession and/ or partition is prayed for in anticipation of the
grant of prayer for specific performance of contract. [See Babu Lal Vs. M/s.
Hazari Lal Kishori Lal and Others (1982) 1 SCC 525]”
(iii) In the case of Lavu Sri Krishna Rao -vs- Dr.Moturi Nagendra Rao
reported in 2006 SCC OnLine AP 669 wherein this Court had held as follows:
“20. In Nagayasami v. Kochadai (2) AIR 1969 Mad. 329, it was
held by High Court of Madras that:
“It has to be recognized that a party cannot be awarded relief on a basis not
pleaded by him and on which there is no issue, merely taking advantage of
some statements in the pleadings or in the evidence made or given for a
different purpose and with reference to a different issue. Such deviation from
the pleading is permissible, very rarely and only in exceptional
circumstances, if it cannot be postulated that the other side has
unambiguously and unequivocally admitted completely the factual or the
legal basis on which relief could be moulded. In other words, it is the clear
admission of the opposite party in the pleadings that confers jurisdiction
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upon the Court to award relief on a basis different from one covered by the
issues on which parties went into trial”.
21. It is well settled that the relief granted must be founded on the
pleadings and the Court is not at liberty to grant relief not pleaded in the
plaint or that does not follow naturally from the claim as stated in the plaint.
In other words, the Court cannot make out a new case altogether. It is not
even a case, where-alternative relief of partition is granted based on any
admission by the Defendants in their pleadings, which admission, may in a
given case, confer jurisdiction on the Court to grant an alternative relief.
When the pleadings are confined to the relief of permanent injunction
claimed by the Plaintiff and opposed by the Defendants and when specific
issues were framed in respect of specific pleadings and the parties have gone
to trial adducing evidence in support of their respective contentions
pertaining to those issues, there is absolutely no justification for the trial
Court in travelling beyond the pleadings, the issues and the evidence and
grant a totally different relief not asked for by either of the parties. The
parties were not required to adduce any evidence beyond the scope of the
pleadings. Hence, they had no opportunity to put forth any evidence
regarding the partition proposed by the Court. In fact, two other sons, who
are said to be members of the joint family of the Defendants, are also not
parties to the suit. However, the trial Court, unmindful of the limited scope of
the pleadings and the issues arising therefrom went on to grant a larger
relief of partition of the suit property. When a larger relief is prayed for and
the claim for the same is not duly established, but when the evidence justifies
grant of a smaller relief, granting of such smaller relief is permissible under
Order VII Rule 7 CPC; which reads as under:
Order VII Rule 7 CPC:
Relief to be specifically stated.—Every plaint shall state specifically the
relief which the Plaintiff claims either simply or in the alternative, and it
shall not be necessary to ask for general or other relief which may always be
given as the Court may think just to the same extent as if it had been asked
for. And the same rule shall apply to any relief claimed by the Defendant in
his written statement.
22. However, under the guise of the said provision, a relief larger
than the one claimed by the Plaintiff in the suit cannot be granted.
23. In Rajendra Tiwary v. Basudeo Prasad (3) AIR 2002 S.C. 136, the
Apex Court held:
“Where the relief prayed for in the suit is a larger relief and if no case is
made out for granting the same but the fact, as established, justify granting
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of a smaller relief, Order VII Rule 7 permits granting of such a relief to the
parties. However, under the said provisions a relief larger than the one
claimed by the Plaintiff in the suit cannot be granted”.
24. In view of the above decision of the Apex Court, it is not open
for the trial Court to have granted a larger relief of partition deciding the
question of title, that too, in the absence of other two sons of Defendant No.
3, who are also members of the joint family, in a suit filed for bare
injunction. In a given case, the Court may, look into the aspect of title
incidentally while considering grant of relief of injunction; but, however,
deciding contentious questions of title on the face of rival and opposite
claims, that too, in the absence of necessary pleadings and issues and
evidence, and fixing the shares among some of the parties in respect of the
suit property and granting a decree for partition, which is not prayed for by
either of the parties is totally unwarranted and impermissible under law.
25. Learned Counsel for the Respondent-Plaintiff relied upon a
decision in P. Narasimham v. P. Venkata Narasimha Rao (4) 1962 (1) 425
ALT, wherein it was held as follows:
“Even without an amendment, in a suit for possession of certain property
with sole and exclusive rights therein, a decree for partition could be
granted not withstanding the absence of an alternative prayer, provided such
a relief would not result in such prejudice or injustice to the other side”.
26. Relying upon the above decision, learned Counsel contended
that applying the same analogy to the present case, the decree for partition
granted by the trial Court is sustainable.
27. In the above case, the suit was filed for recovery of possession.
The trial Court granted a decree for ‘ partition. During the hearing of the
appeal, the Plaintiff in the above suit applied for permission to amend the
plaint by adding the relief of partition and separate possession of half share
in the suit property in the alternative in order to obviate the difficulties
arising out of the original frame of the suit. On the basis of the factual matrix
and evidence available on record in the above case, the High Court held that
it would be meaningless to drive the Plaintiff to another suit and therefore
allowed the proposed amendment to the plaint holding that the amendment
should be allowed in order to adjudicate upon the real issues arising in a
case and there cannot be any insuperable difficulty to allow a Plaintiff to
amend the plaint seeking an alternative relief in furtherance of justice and if
it does not involve the other side in real hardship. It was further observed
that even without an amendment, in a suit for possession of certain property,
decree for partition could be granted notwithstanding the absence of an
alternative prayer, provided such a relief would not result in such prejudice
or injustice to the other side.”
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(iv) In the case of Union of India vs. Ibrahim Uddin and another
reported in (2012) 8 SCC 148 wherein this Court had held as follows:
“55.The Section provides that courts have discretion as to declaration
of status or right, however, it carves out an exception that a court shall not
make any such declaration of status or right where the complainant, being
able to seek further relief than a mere declaration of title, omits to do so. In
Ram Saran & Anr. v. Smt. Ganga Devi, AIR 1972 SC 2685, this Court had
categorically held that the suit seeking for declaration of title of ownership
but where possession is not sought, is hit by the proviso of Section 34 of
Specific Relief Act, 1963 (hereinafter called ‘Specific Relief Act’) and, thus,
not maintainable. In Vinay Krishna v. Keshav Chandra & Anr., AIR 1993
SC 957, this Court dealt with a similar issue where the Plaintiff was not in
exclusive possession of property and had filed a suit seeking declaration of
title of ownership. Similar view has been reiterated observing that the suit
was not maintainable, if barred by the proviso to Section 34 of the Specific
Relief Act. (See also: Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567).
85. To sum up, in view of the above discussion, we reach the following
conclusion:
85.1.The first appellate court as well as the High Court committed grave
error in shifting the burden of proof on the Union of India,
Appellant/Defendant No.1, though it could have been exclusively on the
Plaintiff/Respondent No.1 to prove his case.
85.2.There is nothing on record to prove the grant/gift by the Maratha
Government in favour of ancestors of Plaintiff/Respondent No.1 in the year
1800. Plaintiff/Respondent No. 1 miserably failed to prove the pedigree
produced by him.
85.16.The courts below had wrongly drawn adverse inference against the
Appellant/Defendant No.1 for not producing the documents as there was no
direction of the court to produce the same. Neither the Plaintiff/Respondent
No.1 had ever made any application in this respect nor he filed any
application under Order XI CPC submitting any interrogation or for
inspection or production of document.
85.17.The appellate courts have decided the appeals in unwarranted manner
in complete derogation of the statutory requirements. Provisions of CPC and
Evidence Act have been flagrantly violated.
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86. In view of above, appeal succeeds and is allowed, judgments and decrees
of the first and second appellate courts are set aside and the judgment and
decree dated 20.1.1998 passed by Civil Court in Original Suit No.442 of
1995 is restored. No costs.”
13. By pointing out the aforesaid decisions, the learned Counsel for
the Appellant submitted that the decree for partition and separate possession as
well as specific performance granted by the Trial Court is legally not
sustainable. Such decree passed by the Trial Court is beyond the scope of the
suit. Further, no issue was framed by the Trial Court as to whether the
Plaintiff is entitled for a decree for partition. In the absence of any issue
having been framed, the Judgment and Decree passed by the Trial Court has to
be set aside. Accordingly, the learned Counsel for the Appellants prayed for
allowing this Appeal.
14. Per contra, the learned Counsel appearing for the first
Respondent/Plaintiff submitted that the transaction between the Plaintiff and
the first Defendant cannot be termed as a loan agreement. The first Defendant
knowing fully well about the alienation of the property in favour of the
Plaintiff, executed Ex.A-1 agreement of sale. The first Defendant is not an
illiterate and he is a qualified Doctor and a holder of MBBS Decree. The
father of the first Defendant was also a Doctor by profession. The Plaintiff is
none other than the own brother of father of the first Defendant and paternal
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uncle of first Defendant. For the treatment of his mother – second Defendant,
the first Defendant borrowed money on various occasions and execited the
sale agreement. The first Defendant read over the endorsements on the sale
agreement by himself and he is fully aware of the nature of document executed
by him. In this context, the learned Counsel appearing for the first
Respondent/Plaintiff invited the attention of this Court to the deposition of
first Defendant as D.W-1.
15. The learned Counsel for the first Respondent/Plaintiff further
submitted that the Appellants cannot be permitted to argue contrary to Section
92 of the Indian Evidence Act. When once a document has been executed,
thereafter, the parties to the document cannot be allowed to turn around and
deny the recitals contained in such document. In this case, the contention of
the first Defendant with reference to Ex.A-1 is against the provisions of
Section 92 of the Indian Evidence Act and it cannot be accepted. Therefore,
the learned trial Judge had on appreciation of evidence concluded that Ex.A-1,
agreement of sale is legally enforceable and decreed the suit filed by the first
Respondent-Plaintiff for specific performance.
16. The learned Counsel appearing for the first Respondent/Plaintiff
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invited the attention of this Court to Ex.A-1 recitals as well as the deposition
of DW1 wherein it is stated that the property is in the control of the Plaintiff.
Regarding the contention that the Plaintiff had attempted to knock off the
property through the Court, there is no documentary evidence to show that the
property in question was worth about Rs.70,00,000/- (Rupees Seventy Lakhs
only) as on the date of Ex.A-1, agreement of sale. The first Defendant
examined himself as DW1 but he has not filed any document in support of his
defence. While so, the conclusion reached by the Trial Court is probable and
reasonable. The appeal lacks merit and it has to be dismissed with costs for
the first Respondent-Plaintiff.
17. In support of his contention, the learned Counsel for the First
Respondent/Plaintiff relied on the following rulings:-
(i) In the case of Nanjammal, etc & another -vs- Palaniammal
reported in 1993 (2) LW 205 wherein this Court had held as follows:
“5. It was one of the contentions urged in the court below that the
Plaintiff had not even obtained encumbrance certificate before the
execution of Ex.A-1 and she had not taken the title deed from the
Defendant. The Court below has pointed out the recital in Ex.A-1 under
which the Defendant had undertaken to obtain an encumbrance
certificate and give it to the Plaintiff. The fact that the Plaintiff had not
taken the title deed in advance does not in any way discredit the truth
of the agreement in Ex.A-1. In fact, the evidence of the Defendant is
that what was written was really an agreement though it was only for
the purpose of securing the loan. She (Defendant) has admitted that the
Plaintiff wanted her to execute an agreement for sale by way of security
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for the loan and she did execute such an agreement. When that is the
fact, it is not open to the Defendant to raise a plea that the terms of the
agreement should be ignored as the real purpose was to secure the
loan transaction. It is conceded by learned Counsel for the Appellants
that the Defendant is barred from raising such a plea by Section 92 of
the Indian Evidence Act.”
(ii) In the case of A. Abdul Rashid Khan (Dead) and others -vs-
P.A.K.A. Shahul Hamid and others reported in (2000) 10 SCC 636 wherein
this Court had held as follows:
“4. At the outset, we may consider the case of the Appellants, as
contained in the additional written statement that it was understood between
the parties that Plaintiff would obtain the signatures of Respondent Nos. 2
and 3 and that the sale deed would be executed as one composite sale deed
of the entire property. On the contrary, the case of the Respondent No. 1 is
that Appellants undertook to get the signatures of their sisters. They are all
plea and contentions, which are not born out of the agreement and sale.
These are pleas by both the parties beyond the said written agreement. The
law in this regard is well settled, in view of Section 92 of Indian Evidence
Act, where any contract which is required by law to be reduced in writing,
then no oral evidence or understanding to the contrary or what is apart from
the said contract would be admissible in law. It is not in dispute in the
present case, the agreement of sale was reduced in writing which was for an
immovable property. Hence, these pleas, both of the Appellants and
Respondent No. 1, as aforesaid being beyond the written agreement of sale
cannot be taken into consideration.
14. Thus we have no hesitation to hold, even where any property is
held jointly, and once any party to the contract has agreed to sell such joint
property agreement, then, even if other co-sharer has not joined at least to
the extent of his share, he is bound to execute, the sale deed. However, in the
absence of other co-sharer there could not be any decree of any specified
part of the property to be partitioned and possession given. The decree could
only be to the extent of transferring the share of the Appellants in such
property to other such contracting party. In the present case, it is not in
dispute that the Appellants have 5/6 share in the property. So, the Plaintiffs
suit for specific performance to the extent of this 5/6th share was rightly
decreed by the High Court which requires no interference.
15. So far the other part of the High Court's order by which it
decreed the alternative relief of Respondent No.1 for partition of the suit
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property in six equal share by metes and bounds and delivering separate
possession over these such shares, on the face of it is erroneous and cannot
be sustained, in a suit for specific performance. The vendee on the date of
filing this suit has yet not become the owner of this property, as he merely
seeks right in the said property though the decree of specific performance.
When the sale deed itself has yet to be executed, whose right in the property
has yet not matured, how can he claim partition and possession over it?
Even after decree is passed, his right will only mature when he deposit the
balance consideration and the sale deed is actually executed. This apart how
could be any partition in the property, without other co-sharer joining, who
are not part of the disputed agreement. No issue is framed between them. No
evidence led. Hence, we find that the High Court was not right in decreeing
this alternative prayer of partition in this suit.”
(iii) In the case of P.C.Varghese -vs- Devaki Amma Balambika Devi
and other reported in (2005) 8 SCC 486 wherein this Court had held as
follows:
“22. Sub-section (3) of Section 12 of the Specific Relief Act, 1963
(for short “the Act”) was enacted with a view to meet such eventualities
when the whole of the contract cannot be performed by the vendor. It reads
as under:
“12. (3) Where a party to a contract is unable to perform the
whole of his part of it, and the part which must be left unperformed either—
(a) forms a considerable part of the whole, though admitting of
compensation in money; or
(b) does not admit of compensation in money;
he is not entitled to obtain a decree for specific performance; but the court
may, at the suit of the other party, direct the party in default to perform
specifically so much of his part of the contract as he can perform, if the other
party—
(i) in a case falling under clause (a), pays or has paid the agreed
consideration for the whole of the contract reduced by the consideration for
the part which must be left unperformed and in a case falling under clause
(b), pays or has paid the consideration for the whole of the contract without
any abatement; and
(ii) in either case, relinquishes all claims to the performance of the
remaining part of the contract and all rights to compensation, either for the
deficiency or for the loss or damage sustained by him through the default of
the Defendant.”
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The said provision has been enacted for the benefit of the purchaser and,
thus, cannot operate to his detriment. We may notice that under the old
Specific Relief Act, the Plaintiff was not only required to relinquish his claim
of specific contract as regards that part of the contract which cannot be
performed but also was required to pay the entire amount of consideration;
whereas in terms of Section 12(3) of the new Specific Relief Act, 1963 he is
now required to pay the amount of consideration proportionately.
31. The trial court not only granted a decree for specific
performance of contract but also a preliminary decree for partition.
32. The submission of Mr Reddy to the effect that the learned trial
Judge committed a serious error in granting a decree for partition along
with a decree for specific performance of contract need not detain us long as
in view of Section 22(1)(a) of the Act a decree for partition and separate
possession of the property can be granted in addition to a decree for specific
performance of contract. As in this case, the Appellant herein in view of
amended prayer ‘C’ relinquished his claim in respect of the property
belonging to the minor Respondent 4, he also prayed for a decree for
partition and such a prayer having been allowed, no exception thereto can
be taken. In any event, the said question has not been raised by the
Respondents before the High Court at all. Section 22 enacts a rule of
pleading that in order to avoid multiplicity of proceedings, the Plaintiff may
claim a decree for possession and/or partition in a suit for specific
performance. Even though strictly speaking, the right to possession accrues
only when a suit for specific performance is decreed, indisputably such a
decree for possession and/or partition is prayed for in anticipation of the
grant of prayer for specific performance of contract. (See Babu Lal v. Hazari
Lal Kishori Lal [(1982) 1 SCC 525] .)
33. The only person who could question the said decree for
partition was Respondent 4. As noticed hereinbefore, a decree as against her
has attained finality as she did not prefer any appeal thereagainst.
34. The said decree for partition, therefore, has attained finality.
No decree for specific performance of contract, however, has been passed as
against Respondents 4 and 5. They are, however, otherwise bound by the
decree passed by the learned trial Judge. Therefore, they are also proper
parties, though not necessary parties.”
(iv) In the case of Chanda (Dead) through LRs., -vs- Rattni and
another reported in (2007) 14 SCC 26 wherein this Court had held as follows:
“A.Specific Relief Act, 1963 – S.28 – Scope of, compared with S. 35(c) of
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Specific Relief Act, 1877 – Object of new section i.e., S.28 stated – Held, the
present section seeks to provide complete relief to both the parties in terms of
a decree for specific performance in the same suit without requiring any of
the parties to initiate separate proceedings – The object is to avoid
multiplicity of suits – Specific Relief Act, 1877, S.35(c)
Section 28 of the Specific Relief Act, 1963 corresponds to Section
35(c) of the Specific Relief Act, 1877 under which it was open to the vendor
or lessor in the circumstances mentioned in that section to bring a separate
suit for rescission. But Section 28 of the new Act goes further and gives to
the vendor or lessor the right to seek rescission in the same suit, when after
the suit for specific performance is decreed the Plaintiff fails to pay the
purchase money within the period fixed. Likewise under the present
provision where the purchaser or lessee has paid the money, he is entitled in
the suit for specific performance to the reliefs as indicated in sub-section (3)
like, partition, possession, etc. Thus, the present seeks to provide complete
relief to both the parties in terms of a decree for specific performance in the
same suit without requiring any of the parties to initiate separate
proceedings. The object is to avoid multiplicity of suits.”
“8. The present section corresponds to Section 35(c) of the Specific
Relief Act, 1877 (hereinafter referred to as “the repealed Act”) under which
it was open to the vendor or lessor in the circumstances mentioned in that
section to bring a separate suit for rescission; but this section goes further
and gives to the vendor or lessor the right to seek rescission in the same suit,
when after the suit for specific performance is decreed the Plaintiff fails to
pay the purchase money within the period fixed. The present section,
therefore, seeks to provide complete relief to both the parties in terms of a
decree for specific performance in the same suit without requiring one of the
parties to initiate separate proceedings. The object is to avoid multiplicity of
suits. Likewise under the present provision where the purchaser or lessee has
paid the money, he is entitled in the suit for specific performance to the
reliefs as indicated in sub-section (3) like, partition, possession, etc. A suit
for specific performance does not come to an end on passing of a decree and
the court which has passed the decree for specific performance retains the
control over the decree even after the decree has been passed.”
(v) In the case of T.G.Pongiannan -vs- K.M.Natarajan reported in
2009 (6) CTC 301 wherein this Court had held as follows:
“Held: All the above decisions would examplify and demonstrate that
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the Plaintiff's right to get specific performance cannot simply be ignored on
the mere plea of the Defendants that it was not intended to be an agreement
to sell, but it was only to secure repayment of the loan
The conduct of the Defendants should be taken note of Even though the
registered Agreement to Sell-Ex. Al emerged as early as 30.8.1999, the
Defendants have it chosen 10, as per their own version, repay the loan or
send any notice calling upon the Plaintiff to return Ex.A-1.
The Defendants have not proved by any shard or shred, scintilla or
pint-sized, iota or molecule extent of evidence that any interest was paid by
them to Plaintiff towards the alleged lean. As such, this Court can only treat
their plea as a false one. Had really DWI (DI), claimed in his Chief
Examination Affidavit, paid 18% interest for the sum of Rs. 75,000/-or so,
then there would have been at least some passbook or note book or any chit,
evidencing the same.”
18. By relying on the above decisions, it was contended by the
learned Counsel for the Plaintiff-first Respondent that the claim of the Plaintiff
is borne out of material documents and it cannot be simply ignored on the plea
of the first Defendant that Ex.A-1 was not intended for sale of the plaint
scheduled property but it was executed for borrowal of money. When the first
Defendant-Appellant did not produce any documentary evidence to strengthen
his defence, the Trial Court is wholly justified in passing a preliminary decree
for partition and separate possession. Further, the Trial Court did not grant
such a decree for the entire property but excluded the property to be fell to the
share of the Defendants 2 and 3 by taking note of the fact that the Defendants
2 and 3 are not signatories to the agreement of sale under Ex.A-1. Thus, it is
submitted by the learned Counsel for the First Respondent-Plaintiff that the
preliminary decree passed by the Trial Court is legally sustainable and it does
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not call for any interference by this Court. Accordingly, he prayed for
dismissal of this appeal.
Point for determination:
Whether the Judgment and Decree dated 12.07.2010 made in
O.S. No. 14 of 2009 on the file of the learned III Additional
District Judge at Puducherry is liable to be interfered with as
perverse?
19. Heard the learned Counsel for the Appellants and the learned
Counsel for the first Respondent-Plaintiff. Perused the Plaint, written
statement and deposition of P.W-1 as well as D.W-1 and also the Judgment
dated 12.07.2010 passed in O.S. No. 14 of 2009, which is impugned in this
appeal.
20. Before proceeding with this appeal, it must be necessary to state
that pending suit, the first Defendant/Appellant died on 31st December 2011 as
a bachelor. Subsequently, the second Defendant namely the mother of the first
Defendant also died. Therefore, for the purpose of adjudication of this appeal,
the third Defendant in the suit was transposed as the second Appellant as per
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the order dated 23.02.2022 passed by this Court.
21. It is an admitted fact that the plaint scheduled property belongs to
the father of the first Defendant, who is also the brother of the Plaintiff. The
relationship between the Plaintiff and Defendants is not disputed. It is also an
admitted fact that on the death of the father of the first Defendant, the property
in question devolved on the second Defendant-wife, first Defendant-son and
third Defendant – daughter. It is also an admitted fact that the second
Defendant was seriously ill and she was admitted in the hospital. According to
the first Defendant to meet the medical expenses of his ailing mother, he
borrowed amount from the Plaintiff by reposing absolute faith in him.
However, the first Defendant obtained his signature and made a claim that the
first Defendant had entered into an agreement of sale. It was also submitted
that the sale consideration was fixed at Rs.6 lakhs out of which a sum of
Rs.3,05,000/- was received as advance. Even prior to institution of suit, a pre-
suit notice dated 17.11.2008 was sent by the Plaintiff for which a reply notice
dated 21.11.2008 was sent by the first Defendant. In the reply notice the first
Defendant repudiated all the averments made by the Plaintiff.
22. In the notice dated 17.11.2008, the Plaintiff-first Respondent has
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referred to the execution of the agreement of sale dated 17.07.2008 by the first
Defendant, the receipt of various amount by the first Defendant on various
dates and the fixation of sale consideration of Rs.6,00,000/-. It was further
stated that after receipt of the advance sale consideration, the first Defendant
evaded to execute the sale consideration. Therefore, by the notice dated
17.11.2008, the first Defendant was called upon to receive the balance sum of
Rs.2,95,000/- and to execute the sale deed in his favour.
23. On receipt of the notice dated 17.11.2008, a reply notice dated
21.11.2008 was sent by the first Defendant. The reply notice dated 21.11.2008
of the first Defendant is required to be looked into to conclude as to whether
Ex.A-1, agreement of sale has been executed by the first Defendant with an
intention to alienate the property described in the plaint. In the reply notice,
among other things, it was stated that in connection with the property in
question, already a suit in O.S. No. 682 of 2002 has been filed and it is
pending. It was further stated that the property is worth about Rs.70 lakhs as
on the date of the so-called agreement of sale dated 27.11.2008. It was further
stated that the transaction between the first Defendant and the Plaintiff is a
loan transaction and the first Defendant had received the amount for the
purpose of treatment of the second Defendant. It was also submitted that the
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second and third Defendants are not parties to the agreement of sale.
However, when they were asked about their intention to alienate the property,
they have clearly stated that they have no intention to sell the properties.
Thus, it was stated that there are so many infirmities in the alleged contract
between the Plaintiff and the first Defendant and therefore also, the property
could not be sold.
24. Thus, it is evident that the purpose for which the so-called
agreement was created is not for sale of the plaint scheduled property. It is
further evident that it is not as if the first Defendant alone is the sole and
exclusive owner of the property but the Defendants 2 and 3 are also having a
share in it. Further, in connection with the property in question, a suit in O.S.
No. 682 of 2002 in which the brother of the Plaintiff was also a party. It is not
known or there was no evidence made available as to whether O.S. No. 682 of
2002 was disposed of and if so, what was the outcome of the same.
25. Be that as it may. It is an admitted fact that at the time when
Ex.A-1 agreement of sale was entered into between the Plaintiff and first
Defendant, the second Defendant was in hospital and was taking treatment.
According to the first Defendant, he borrowed amount from the Plaintiff for
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the purpose of treatment of her mother and there was no intention to alienate
the property to the Plaintiff. Further, the first Defendant admitted that he
received money as loan from the Plaintiff and he is also ready and willing to
repay the amount to the Plaintiff. The Plaintiff who has come forward with the
suit for specific performance is bound to prove that Ex.A-1 was whole
heartedly executed by the first Defendant for alienating the plaint scheduled
property. Further, the first Defendant has no exclusive saleable right in the
property in question. The second and third Defendants also have got a share in
the property. While so, the Plaintiff has not even chosen to obtain the
concurrence of the second and third Defendants the intention of the first
Defendant to alienate the property. Even in the reply notice, it was stated that
when the Defendants 2 and 3 were informed about the claim of the Plaintiff
they have unequivocally expressed that they are not interested to sell the plaint
scheduled property to the Plaintiff. In such circumstances, whether a
preliminary decree could be passed by the Trial Court is required to be
examined.
26. Section 22 of the Specific Relief Act empowers the Court to pass
a decree for specific performance. Section 22 empowers the Trial Court to
even grant a decree for possession, partition, separate possession or refund of
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the amount paid as sale advance, depending upon the evidence made available.
At the same time, it is an equitable relief and it cannot be awarded for the sake
of filing the suit. At the same time, Sub-Section 2 of Section 22 contemplates
that an equitable relief of specific performance or the allied relief of partition
need not be granted unless it was sought for by the Plaintiff. However, if the
Plaintiff did not sought for the allied relief of partition, the Court can permit
the Plaintiff to amend the plaint before granting such a relief. In this case, the
Trial Court granted a preliminary decree for partition even without amending
the plaint. Further, there is no specific issue framed in the suit for partition of
the plaint scheduled property. In the absence of any issue having been framed
for grant of partition, the Trial Court is legally precluded from granting the
relief of partition. Thus, this Court is of the view that the preliminary decree
for partition granted without framing an issue is beyond the nature and scope
of the plaint filed by the Plaintiff and it is liable to be interfered with.
27. Yet another circumstance that impels this Court to interfere with
the Judgment and Decree of the Trial Court is that the first Defendant, in the
reply notice as well as written statement has clearly stated that the worth of the
property is Rs.70 lakhs but the Plaintiff is attempting to grab it for a sum of
Rs.6 lakhs. This was not specifically denied by the Plaintiff by filing a
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rejoinder or any other document to show that the value of the property is
exaggerated by the first Defendant. While so, it shall be presumed that the
value of the plaint scheduled property is manifold and it is sought to be
snatched by the Plaintiff for a throw away price of Rs.6 lakhs. Consequently,
the Court below ought not to have granted the equitable relief of specific
performance of the agreement, when the first Defendant has not come forward
with clean hands.
28. Yet another circumstances required to be considered in this case,
the first Defendant has not disputed or denied the amount received from the
Plaintiff. It is his contention that he is ready to repay the amount. In such
circumstances, having regard to the fact that the first Defendant alone is not
the owner of the property and the Defendants 2 and 3 are not inclined to
alienate the property to the Plaintiff, the trial court ought to have granted the
alternative relief of refund of the amount. Having regard to the over all facts
and circumstance of the case, this Court is of the view that the agreement of
sale under Ex.A-1 cannot be legally enforced against the Defendants. The
documents made available only indicate that it was a loan transaction and the
Defendants never intended to alienate the property to the Plaintiff. The first
Defendant was exploited by the Plaintiff by exerting pressure on him to
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execute a document as security towards the borrowed money but converting it
into an agreement of sale. In such circumstance, this Court is of the view that
the Plaintiff is only entitled for refund of the amount he paid to the first
Defendant and he is not entitled for the relief of partition, specific performance
or possession of the plaint scheduled property.
29. The learned Counsel for the Plaintiff/first Respondent submitted
that the first Defendant is not an illiterate but a Doctor by profession. The first
Defendant, having executed Ex.A-1 agreement with full knowledge, cannot be
permitted to turn around and dispute it contrary to Section 92 of the Indian
Evidence Act. This submission of the Counsel for the Plaintiff-first
Respondent cannot be accepted. As per the Principles of Contract, both parties
to a contract must be equally placed. Here, the Plaintiff had the money and
resources whereas the first Defendant was at the mercy of the Plaintiff, as he
require money for treatment of his mother. The Plaintiff exploited this
situation to create Ex.A-1 to his advantage. On the other hand, the first
Defendant, due to the urgency was forced to sign the dotted lines styled as
sale agreement instead of a simple promissory note. As mentioned above, the
first Defendant was not an exclusive owner of the property. The agreement
under Ex.A-1 precludes and deprives the right of the Defendants 2 and 3 over
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the plaint schedule described property. In such circumstances also, the
provisions of Section 92 of the Indian Evidence Act cannot be pressed into
service in this case. In such a situation, the execution of such a sale agreement
itself is unenforceable.
30. On consideration of the over all facts, it could be evident that the
first Defendant was in financial doldrum and was unable to afford the medical
treatment of his mother, the second Defendant. This has prompted him to
avail loan from the Plaintiff. The Plaintiff exploited the financial shortcoming
of the first Defendant and created Ex.A-1, agreement of sale. Invariably in
specific performance cases, for the money advanced by a party, the person
who receives money executes documents without knowing the repercussions.
It is in this context, the principles underlying the Indian Contract Act is to be
ensured that both the parties to the contract are placed in equal position and
the vulnerability or otherwise of the other is not exploited. In such
circumstances, the agreement under Ex.A-1 cannot be considered as a genuine
or the one executed by the first Defendant voluntarily. Considering the fact
that the first Defendant was in a disadvantageous position due to lack of
resources at his command for the treatment of his mother this Court holds that
the Plaintiff had taken advantage of such a position of the first Defendant to
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enclose the property which is worth more than Rs.70 lakhs. The contract was
not entered into between equally placed individuals. The Defendant was at the
mercy of the Plaintiff when he was executing the sale agreement deed to
mobilise amount to treat his ailing mother. In such circumstances, the
Judgment and Decree granted by the Trial Court is liable to be interfered with.
31. The rulings on which the learned Counsel for the Respondent
relied will not help the Respondent in this case. The parent document or
Encumbrance Certificate had not been handed over to the Plaintiff at the time
of execution of Ex.A-1. Therefore, in the light of the rulings cited by the
learned Counsel for the Appellant in (i) Messrs. Trojan & Company -vs- RM.
N.N. Nagappa Chettiar reported in 1953 SCR 789, (ii) P.C.Varghese -vs-
Devaki Amma Balambika Devi and other reported in (2005) 8 SCC 486 , (iii)
Lavu Sri Krishna Rao -vs- Dr.Moturi Nagendra Rao reported in 2006 SCC
OnLine AP 669, the judgment of the trial Court is found unacceptable. When
the Plaintiff has sought specific relief for enforcement of contract for sale of
the property which was valued Rs.70,00,000/-, the Court cannot pass a
preliminary decree without conducting any enquiry as to the real value of the
property and the price at which it was sought to be purchased by the Plaintiff.
Therefore, this Court is of the view that the Plaintiff is only entitled for the
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alternative relief of refund of the amount paid to the first Defendant.
32. The ruling cited by the learned Counsel for the Respondent in the
cases of P.C.Varghese -vs- Devaki Amma Balambiga Devi Chandra and
T.G.Pongiannan -vs- K.M.Natarajan reported in 2009 (6) CTC 301 will not
hold good in the facts of this case. When the property in question was worth
Rs.70,00,000/- on the date of the execution of the sale agreement, the Plaintiff
cannot be allowed to get it for a paltry sum of Rs.6,00,000/-.
33. In the light of the above discussion, the point for consideration is
answered partly in favour of the Appellants and against the Respondents. The
Judgment and Decree dated 12.07.2010 made in O.S. No. 14 of 2009 on the
file of the learned III Additional District Judge at Puducherry is modified.
In the result, the Appeal Suit is partly allowed modifying the
Judgment and Decree dated 12.07.2010 in O.S. No. 14 of 2009 on the file of
the learned III Additional District Judge at Puducherry. The Plaintiff is entitled
to the sum of Rs.3,05,000/- paid by him to the first Defendant with interest
from the date of plaint till the date of realisation at 18% per annum. The
Plaintiff is also permitted to withdraw the amount, which he had deposited to
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the credit of the suit, if any.
02.06.2025
Index:Yes/No
srm/shl
To
1.The III Additional District Judge at Puducherry
2.The Section Officer,
Vernacular Records,
Madras High Court.
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SATHI KUMAR SUKUMARA KURUP, J
srm/shl
Judgment made in
02.06.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 04/06/2025 08:58:05 pm )
