Madras High Court
N.Thiyagarajan vs K.Sengodan on 5 March, 2025
Author: T.V.Thamilselvi
Bench: T.V.Thamilselvi
S.A. No.867 of 2013
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 05.03.2025
CORAM:
THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI
S.A. No.867 of 2013
and
M.P.No.1 of 2013
N.Thiyagarajan
... Appellant
Vs.
1. K.Sengodan
S.N.Subramanian (died)
3. Amudavalli
4. Jayalakshmy
5. S.Mahesh
Respondents 3 to 5 brought on record
as LRs of deceased 2nd respondent
vide court order dated 01.12.2021
made in C.M.P.No.7952 to 7954 of 2016 .. Respondents
PRAYER : Second Appeal filed under Section 100 of Code of Civil
Procedure, to set aside the judgment and decree made in A.S.No.5 of 2012
dated 07.02.2013 on the file of II Addl. District Judge, Erode confirming
1/35
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S.A. No.867 of 2013
the judgment and decree passed in O.S.No. 321 of 2010 dated 15.06.2011
on the file of II Addl. Subordinate Judge, Erode.
For Appellant : Mr.K.Ramanraj
For Respondents : Mr.S.Senthilnathan for R3 to R5
JUDGMENT
The appellant herein is the 2nd defendant in the suit in O.S.No.321 of
2010 on the file of II Addl. Subordinate Judge, Erode filed by the 1st
respondent/plaintiff seeking for the relief of specific performance directing
the defendants to execute a sale deed by receiving balance sale
consideration and other consequential reliefs. The 1st defendant remained
exparte. The 2nd defendant alone contested the case. On hearing both sides,
the trial judge granted the relief of specific performance in favour of
plaintiff. Aggrieved over the said findings, the 2nd defendant preferred an
appeal suit in A.S.No.5 of 2012 on the file of II Addl. District Judge, Erode,
wherein also the findings of the trial judge was confirmed and the Appeal
Suit was dismissed. Challenging the said findings, the 2nd defendant
preferred this Second Appeal.
2. For the sake of convenience, the parties are addressed as per the
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ranking in the suit.
3. Brief facts of the case is as follows :-
The 1st defendant is the absolute owner of the suit property with
whom, the plaintiff entered into sale agreement to purchase the same for a
valid consideration of Rs.6,50,000/- and the plaintiff paid a sum of
Rs.4,50,000/- as advance and within one year, the 1st defendant is bound to
execute the sale deed free of all encumbrances and a notarised sale
agreement was executed on 30.01.2005. On the same day itself, the 1st
defendant handed over the xerox copies of parent document and also
delivered the possession of suit property as part performance of contract.
Again on 24.02.2006 the 1st defendant received another sum of
Rs.1,50,000/- and made endorsement on the back side of the sale
agreement. The remaining balance sum of Rs.50,000/- alone was payable
by the plaintiff. When the same was informed to the 1st defendant, he
evaded and also attempted to transfer the property in favour of 2nd
defendant, who is his brother. Hence, the plaintiff issued lawyer's notice on
15.11.2006 along with demand drafts for the balance sum of Rs.50,000/-,
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for which, the 1st defendant has not given any reply and the 2nd defendant
gave a reply stating that he purchased the property for the valid
consideration from his brother through his father viz., power agent on
27.04.2006. But, the said sale claimed by the 2nd defendant is fraudulent
one and collusive in order to defraud the plaintiff and to defeat the terms of
sale agreement as agreed by the defendants. Hence, the plaintiff came
forward with the suit seeking for the relief of specific performance with
alternative relief.
4. In the written statement filed by the 1st defendant, he admits the
sale agreement with the plaintiff and also admits that he had received part
of sale consideration on 24.02.2005, but he denied that he is trying to
transfer the property in favour of 2nd defendant and submitted that he was
also not aware of the alleged sale deed dated 27.04.2006 said to be
executed by his power agent/father Nachimuthu. In fact, his father was
bedridden and he had no sound state of mind for the past few years. He also
submitted that long back in the year 1973, he executed a power of attorney
in favour of his father to maintain the property and the power deed was also
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been cancelled long back. Therefore, the alleged sale deed relied on by the
2nd defendant would not bind him nor it is valid one. However, he is ready
to execute the sale deed in favour of plaintiff as per the terms of sale
agreement. Hence, he prayed to dismiss the suit.
5. The 2nd defendant filed a separate written statement stating that his
father viz., Nachimuthu gounder was working in Railway Mail Service, as
he is a Central Government employee, he was not able to acquire the
property in his name as per the Conduct Rules. So, he purchased a vacant
site of the suit property and the adjacent property through three sale deeds
dated 23.04.1969, 17.04.1972 and 19.04.1972 in the name of his eldest
son/1st defendant herein, who was aged only 10 years at that time. The
purchase made by the father for the benefit of joint family and not to the
benefit of 1st defendant. The 1st defendant also not having any source of
income in the year 1969 or 1972 and the entire sale consideration for the
said three sale deeds were paid by his father from out of his salary and the
1st defendant not having any independent source of income at that time.
After the purchase, his father Nachimuthu constructed six houses in the
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vacant site from out his own salary. The 1st defendant joined in telephone
department in Bangalore and working therefor nearly about 29 years. On
24.03.1973 the 1st defendant executed a power of attorney in favour of his
father in respect of suit property and the suit houses were rented to tenants
and when Nachimuthu gounder, who is absolute owner of property received
the rent. In order to perform marriage to his son and daughter, the 1st
defendant demanded his father to sell the southern 3 houses and to give
sale proceeds to him meet out marriage as well as educational expenses, at
that time, this defendant was running a furniture mart under the name and
style of Sri Om Muruga Agency and having consideration to purchase
southern three houses. Accordingly, he offered to buy the suit property for
a sum of Rs.4,95,000/-, for that, his father and the 1st defendant also agreed
for the said prise and he directed his father, who was his power of attorney
to execute the sale deeds, thereby in the year of 2006, Nachimuthu, power
holder of 1st defendant sold the property to this defendant and sale deed was
also registered and possession was also delivered to him. Eversince from
that sale, he is the absolute owner of the suit property and his father
Nachimuthu handed over all the original documents pertaining to the suit
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property including the original power of attorney and the sale proceeds
were received by 1st defendant/Subramaniam in order to discharge the loan
borrowed by him. On 28.07.2006 his father Nachimuthu was died and last
ceremony was conducted on 31.07.2006, at that time, the 1st defendant
insisted him to hand over the original document of the suit property and
other properties. When the originals were shown to him, the 1st defendant
has taken the xerox copy of all those documents. Further, he asked this
defendant to cancel the sale deeds said to be executed by his father as a
power of attorney, for which this defendant refused. The 1 st defendant and
his henchmen entered into his house and threatened his wife. Hence, he
gave a complaint before the police, wherein the 1st defendant appeared and
assured that he would not cause interference. Thereafter, the 1st defendant
colluded with the plaintiff and created a fake sale agreement and filed the
present vexatious suit. After he came to know that the plaintiff is the close
relative of 1st defendant and he is only a tool in the hands of 1st defendant.
Only to drag on the property from him, he came forward with this false suit.
In fact, the properties were purchased by his father in the name of 1 st
defendant. Based on that, this defendant purchased the property for a valid
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consideration. At that time, the power of attorney was in force and not
cancelled and the possession was also with him. But, his father, till his life
time collected the rent, thereby denied the plaintiff's alleged possession
over the suit property. After came to know about the purchase made by the
2nd defendant, on colluding with the plaintiff, the 1st defendant fraudulently
created the alleged sale agreement. Therefore, the plaintiff is not entitled
for any relief as he prayed for. Accordingly, he prayed to dismiss the suit.
6. Before the trial court, both parties adduced oral and documentary
evidence. The trial judge framed four issues and the foremost issues are as
follows :-
(i) Whether the sale agreement is true and valid one?
(ii) Whether the sale deed stands in the name of 2nd defendant is true
and valid and it would binds the plaintiff?
(iii) Whether the plaintiff is entitled for the relief as prayed for?
7. On considering both oral and evidence on record, the trial judge
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held that in order to avail the relief of specific performance, the burden is
casted upon the plaintiff to prove that there is a valid sale agreement and he
was bound to perform his part of contract and also to prove the execution
of contract. Accordingly, the plaintiff in order to prove the execution of sale
agreement, examined P.W.2 and P.W.3, who are the scribe and attestor of
the document of sale deeds. As per the evidence of P.W.2, he drafted the
document at the instance of both plaintiff and 1st defendant. P.W.3 is the
attestor of document deposed that he witnessed the signature affixed by
both parties. Based on those witnesses, the trial court held that the plaintiff
had sufficiently proved the execution of sale agreement, besides, the 1 st
defendant also admits the sale agreement with the plaintiff, which itself
sufficient to hold that there is a valid sale agreement between the plaintiff
and the 1st defendant. Further, to prove the readiness, the plaintiff at the
time of issuance of notice, annexed the demand drafts for the balance
consideration and the statutory notice was also issued expressed his
readiness within a stipulated period. As per the sale agreement, the suit
property is belong to 1st defendant and already the power of attorney was
also been cancelled. Therefore, the 1st defendant is bound to execute the
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sale deed as per the terms of agreement. Accordingly, the relief of specific
performance is granted in favour of plaintiff. Further, the trial judge held
that already the power of attorney was cancelled, thereby, the 2 nd defendant,
who claimed right with the said power of attorney has no valid right and
title over the suit property nor the 2nd defendant proved that he paid the
consideration to the 1st defendant through the said power of attorney,
through which the sale deeds were executed, thereby held that the 2nd
defendant is not a bonafide purchaser. Therefore, the sale deeds are not true
and valid one. In respect of possession of property, his father, during his
life time, had collected the rent. Indeed, based on the sale agreement, the
plaintiff is deemed to be constructive possession. In view of the same, the
suit was decreed by granting the relief of specific performance in favour of
plaintiff. Challenging the said findings, the 2nd defendant preferred an
Appeal Suit in A.S.No.5 of 2012, wherein the first appellate judge analysed
the evidence on record, finally held that based on the evidence of P.W.2 and
P.W.3, the plaintiff had proved the execution of sale agreement with the 1st
defendant, who also admits that he entered into sale agreement with the
plaintiff, thereby the plaintiff is having valid sale agreement and the 2nd
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defendant, who claimed right based upon the sale deeds said to be executed
by his father, who is power agent of 1st defendant is not true and valid for
the reason that already the power deed was cancelled, thereby the 1st
defendant is the absolute owner of the suit property. But already he entered
into a sale agreement with the plaintiff and mere possession of original title
deeds relating to the suit property in the hands of 2nd defendant is not
sufficient to hold that he is a bonafide purchaser because prior to the
alleged purchase, sale agreement was entered by the plaintiff with the 1 st
defendant. Therefore, the sale deeds relied on by the 2nd defendant is not
true and valid one nor it binds the plaintiff. Accordingly, the appeal suit
was dismissed by confirming the findings of trial judge.
8. Challenging the said findings, the 2nd defendant preferred this
Second Appeal by raising the following grounds for consideration :-
(a) The courts below have failed to follow that the plaintiff and
the 1st defendant, the respondents herein, have filed a
collusive suit particularly when P.W.1 has deposed that the
sale agreement dated 30.11.2005 under Ex.A1 was known
to none other than the plaintiff and the 1st defendant, which
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completely belies and shatters the evidence of P.W.2 and
P.W.3, who claimed to be the scribe and attesting witnesses.
(b) The courts below have not seen that the 2nd defendant, the
appellant herein produced the original parent documents
under Ex.B10 to B14 which amply proves the case of the
appellant that he is a bonafide purchaser of the suit
properties for valuable consideration under Ex.B3
disproving the case of the respondents herein.
(c) The courts below have gravely erred in not following that
P.W.1 had falsely pleaded part performance of the
agreement under Ex.A1 when D.W.2 and D.W.3, the tenants
in the suit properties have deposed that they were paying
rents to the father of appellant and after execution of Ex.B3,
the tenancy was attorned and rents were paid to the
appellant.
(d) The trial court erred in holding that the plaintiff, the 1 st
respondent herein took constructive possession of the suit
properties, when no such plea has been advanced by the
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plaintiff himself, and the lower appellate court has failed to
appreciate and correct the error.
(e) The courts below have failed to consider and appreciate the
legal effect of the plaintiff failing to prove part performance
of the agreement dated 30.05.2006 under Ex.A1 which
disentitles the plaintiff, the 1st respondent herein from
seeking the discretionary relief of specific performance.
(f) The courts below have not followed that the 2nd defendant,
the appellant herein has purchased the suit properties from
the 1st defendant, the 2nd respondent herein, represented by
his power of attorney agent, the father of appellant and 2nd
respondent under Ex.B3 dated 27.04.2006.
(g) The courts below have utterly gone wrong in not seeing that
the registered power of attorney dated 24.03.1973 under
Ex.B4 was still in force and the sale deed dated 27.04.2006
under Ex.B3 had been validly executed particularly, when
the respondents have failed to prove that Ex.B4 had been
cancelled or revoked.
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(h) The courts below have not seen that the agreement under
Ex.A1 is false and fabricated when P.W.2 and P.W.3 are all
proved to be closely associated with the plaintiff and the 1 st
defendant, the respondent herein, who have all concocted a
false case by colluding together to defeat the rights of the
appellant herein.
(i) The courts below have gone wrong in not seeing that the
plaintiff, the 1st respondent herein, has come to court with
unclean hands, and is not entitled for any relief by abusing
the process of court.
(j) The courts below have erred in accepting the case of
plaintiff, the 1st respondent, in toto, without any acceptable
reasons overlooking the serious defects in pleading and
further failing to prove and establish any semblance of a
right in the suit properties.
(k) The lower appellate court has failed to take into
consideration the evidence adduced in the case and ought to
have refused relief to the respondents herein.
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9. On considering his submissions, this Second Appeal was admitted
on the following question of law :-
(i) Whether the plaintiff/1st respondent herein, who
approached the court with unclean hands by falsely pleading
part performance of the sale agreement dated 30.11.2005 under
Ex.A1, is entitled to the specific relief of execution of the sale
agreement?
(ii) Whether the plaintiff/the 1st respondent herein,
without proving and establishing that the registered power of
attorney under Ex.B4 has been cancelled or revoked could
question the sale deed dated 27.04.2006 in favour of the
appellant under Ex.B3?
(iii) Whether the courts below have exercised discretion
under the Specific Relief Act, 1963 in accordance with law?
(iv) Whether the findings of the courts below are
perverse not based on material evidence adduced in the case
under Ex.B1 to B14 and the deposition of D.W.1, D.W.2 and
D.W.3?
10. The learned counsel for appellant/2nd defendant argues that both
the courts below failed to take note of the fact that the plaintiff and the 1st
defendant colluded together and created the alleged sale agreement in order
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to defeat the 2nd defendant's right over the suit property, besides the
plaintiff, who approached the court with unclean hands not entitled for the
relief, but without appreciating the conduct of plaintiff, the courts below
erroneously granted the relief of specific performance as such is liable to be
set aside. Further, he would submit that the 2nd defendant, who is a bonafide
purchaser of the suit property through the power deed stands in the name of
power agent/father of defendant was in force at the time of his purchase.
Therefore, the alleged unregistered sale agreement was created after the
execution of sale deeds. Based on that, the plaintiff is not entitled for any
relief nor he failed to establish that as per the terms of sale agreement, he
was in possession of property. Inspite of all these lacuna, the courts below
granted the relief of specific performance, which is discretionary one and
the same is to be exercised according to settled principles of law and not
arbitrarily. Therefore, he prayed to set aside the findings of the courts
below. In support of his contentions, he relied the ratio laid down in the
authority held by this Court in A.S.No.1157 of 1995 dated 13.11.2009 in
the case of R.Rajaram and another vs. T.R.Maheswaran, wherein this
Court held as follows :-
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“44. In N.P.Thirugnanam vs. R.Jagan Mohan Rao (Dr),
(1995) 5 SCC 115, the legal position with respect to the
discretionary relief of specific performance was indicated by the
Supreme Court thus :-
"5.It is settled law that remedy for specific performance is an
equitable remedy and is in the discretion of the court, which
discretion requires to be exercised according to settled
principles of law and not arbitrarily as adumbrated
under Section 20 of the Specific Relief Act, 1963 (for short the
Act). Under Section 20, the court is not bound to grant the
relief just because there was a valid agreement of sale. Section
16(c) of the Act envisages that plaintiff must plead and prove
that he had performed or has always been ready and willing to
perform the essential terms of the contract which are to be
performed by him, other than those terms the performance of
which has been prevented or waived by the defendant. The
continuous readiness and willingness on the part of the
plaintiff is a condition precedent to grant the relief of specific
performance. This circumstance is material and relevant and
is required to be considered by the court while granting or
refusing to grant the relief. If the plaintiff fails to either aver
or prove the same, he must fail. To adjudge whether the
plaintiff is ready and willing to perform his part of the
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contract, the court must take into consideration the conduct of
the plaintiff prior and subsequent to the filing of the suit along
with other attending circumstances. The amount of
consideration which he has to pay to the defendant must of
necessity be proved to be available. Right from the date of the
execution till date of the decree he must prove that he is ready
and has always been willing to perform his part of the
contract. As stated, the factum of his readiness and willingness
to perform his part of the contract is to be adjudged with
reference to the conduct of the party and the attending
circumstances. The court may infer from the facts and
circumstances whether the plaintiff was ready and was always
ready and willing to perform his part of the contract.
46. In Gobind Ram v. Gian Chand , (2000) 7 SCC 548, the
discretionary jurisdiction of specific performance was indicated
by the Supreme Court thus :-
"7.It is the settled position of law that grant of a decree for
specific performance of contract is not automatic and is one
of the discretions of the court and the court has to consider
whether it will be fair, just and equitable. The court is guided
by principle of justice, equity and good conscience. As stated
in P.V. Josephs Son Mathew the court should meticulously
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consider all facts and circumstances of the case and motive
behind the litigation should also be considered."
47. In K.S. Vidyanadam v. Vairavan, (1997) 3 SCC 1, petitioners
before the Supreme Court entered into an agreement with the
respondent to sell their property. However, the sale was not
concluded and in the meantime, the property value in Madurai
has increased tremendously. Trial Court had granted the relief of
specific performance and it was reversed by the High Court with
an observation that the plaintiff has been requesting for execution
of the sale deed by the defendants. Before the Supreme Court, the
plaintiffs contended that time was not the essence of contract in
the case of an immovable property and as such, rise in price in
the meantime cannot be a reason to reject the prayer for specific
performance. Supreme Court examined the entire issue in the
light of the earlier decisions and observed thus :-
"11. ... May be, the parties knew of the said circumstance but
they have also specified six months as the period within which
the transaction should be completed. The said time-limit may
not amount to making time the essence of the contract but it
must yet have some meaning. Not for nothing could such time-
limit would have been prescribed. Can it be stated as a rule of
law or rule of prudence that where time is not made the
essence of the contract, all stipulations of time provided in the
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contract have no significance or meaning or that they are as
good as non-existent? All this only means that while exercising
its discretion, the court should also bear in mind that when the
parties prescribe certain time-limit(s) for taking steps by one
or the other party, it must have some significance and that the
said time-limit(s) cannot be ignored altogether on the ground
that time has not been made the essence of the contract
(relating to immovable properties).
48. In Sita Ram v. Radhey Shyam,(2007) 14 SCC 415 ::
2007 (11) Scale 626, the Supreme Court indicated the necessity of
examining the conduct of the person seeking the relief of specific
performance thus :-
10.The basic principle behind Section 16(c) read with
Explanation (ii) is that any person seeking benefit of the
specific performance of contract must manifest that his
conduct has been blemishless throughout entitling him to the
specific relief. The provision imposes a personal bar. The court
is to grant relief on the basis of the conduct of the person
seeking relief. If the pleadings manifest that the conduct of the
plaintiff entitles him to get the relief on perusal of the plaint he
should not be denied the relief. (See Aniglase Yohannan v.
Ramlatha and ors. [2005(7) SCC 534].
52. The necessity to approach the Court with clean hands
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in a suit for specific performance was indicated by the Supreme
Court again in Mohammadia Coop. Building Society Ltd. v.
Lakshmi Srinivasa Coop. Building Society Ltd.,(2008) 7 SCC 310
thus :-
"71. Grant of a decree for specific performance of contract is
a discretionary relief. There cannot be any doubt whatsoever
that the discretion has to be exercised judiciously and not
arbitrarily. But for the said purpose, the conduct of the
plaintiff plays an important role. The courts ordinarily would
not grant any relief in favour of the person who approaches
the court with a pair of dirty hands."
54. The Supreme Court in G.Jayashree v. Bhagwandas S.
Patel,(2009) 3 SCC 141, indicated the concept of discretionary
jurisdiction thus :-
"32. The civil courts, in the matter of enforcement of an
agreement to sell, exercise a discretionary jurisdiction.
Discretionary jurisdiction albeit must be exercised judiciously
and not arbitrarily or capriciously. A plaintiff is expected to
approach the court with clean hands. His conduct plays an
important role in the matter of exercise of discretionary
jurisdiction by a court of law.”
11. The 1st defendant/2nd respondent remained exparte. By way of
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reply, the learned counsel for 1st respondent/plaintiff argues that the suit
property admittedly belongs to 1st defendant, who offered to sell the
property for a valid consideration. Accordingly, the plaintiff entered into
sale agreement and the terms were reduced in writing in the presence of
notary and witnesess within a stipulated period. The plaintiff is ready to
pay balance amount and the same was informed to the 1st defendant through
notice. Though he received, not given any reply, but attempted to transfer
the property in favour of his brother/2nd defendant. Therefore, the plaintiff
approached the court in time and also proved his readiness and willingness
as prescribed under Sec.16(3) of the Specific Relief Act, besides the 1st
defendant, who filed the written statement admits the agreement with the
plaintiff, but not entered into witness box. Therefore, the trial court rightly
granted the relief of specific performance in favour of plaintiff and also
observed that there is a collusion between the 1st defendant and the 2nd
defendant by creating the sale deeds in order to defeat the plaintiff's claim.
Therefore, the trial judge has rightly held that the 2nd defendant is not a
bonafide purchaser of the court below, which needs no interference.
Accordingly, he prayed to dismiss this Second Appeal as no merit.
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12. Heard and considered rival submissions made by learned counsel
for appellant as well as learned counsel for respondents 3 to 5 and perused
the materials available on record.
13. On perusal of records and as per the case of plaintiff, he entered
into sale agreement with the 1st defendant, who is the absolute owner of the
suit property and paid advance amount and entered into sale agreement
under Ex.A1. Within a stipulated period, he was ready to pay the balance
amount, but the 1st defendant evaded and attempted to transfer the property
in favour of 2nd defendant, hence, he filed the suit. Admittedly, the 1st
defendant remained exparte. The 2nd defendant alone contested the case.
According to him, the 1st defendant is not a owner of property and his
father Nachimuthu, a Central Government employee, due to the conduct
rules, he purchased the property as a vacant site from out of his own salary
in the name of 1st defendant in the year 1969 or 1972 through three sale
deeds and those documents were marked as Ex.B5, Ex.B7 and Ex.B11.
After that, he constructed six houses and rented out the same to tenants and
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he collected the rent till his demise. Subsequently, in the year of 1973, his
father got a power of attorney from the 1st defendant in order to dealt with
the property. While so, the 1st defendant wanted to meet out the family
expenses, more particularly, the marriage expenses of his daughter,
demanded the amount from his father Nachimuthu. At that time, this
defendant had considerable amount in his hand, who runs a furniture
business. Hence, he agreed to purchase three houses i.e. suit properties for
a valid consideration. Accordingly, his father executed a sale deeds as a
power of attorney of 1st defendant and received a valid consideration and
the original documents were also handed over to 1st defendant and
possession was also delivered to him. To that effect, he relied the sale deed
dated 27.04.2006 and all the original documents were also handed over to
him including the power of attorney and all those documents are produced
on his side as exhibits, thereby the 2nd defendant contended that as absolute
owner of property, he is in possession of the suit property.
14. Considering entire facts of the case, it would clearly indicates
that the plaintiff, who approached the court for the relief of specific
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performance bound to establish that he entered into sale agreement with the
1st defendant for a valid consideration and also approached the court with
clean hands, besides he was always ready to perform his part of contract.
As per the contention of plaintiff, the 1st defendant is the absolute owner of
the suit property, but the same was denied by the 2nd defendant stating that
his father purchased the property in the name of his brother/1st defendant in
the year 1969 or 1972 through three sale deeds. To prove the same, the 2nd
defendant produced those three original sale deeds and the sale deeds
including Exchange deed were marked on his side as Ex.B5, B6, B7 and
Ex.B11. All those documents stand in the name of 1st defendant. On perusal
of those documents, it stands in the name of 1st defendant, but on perusal of
written statement filed by the 1st defendant, though he has not entered into
witness box and remained exparte at the time of trial and also he has not
stated anything about the purchase made by him in the year of 1969 or
1970. He simply stated that he gave power of attorney in favour of his
father on 24.03.1973 immediately after the purchase against those property.
Furthermore, on perusal of cause title of plaint, the age of 1st defendant was
mentioned as aged about 56 years. If that being so, he might have born in
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the year of 1951 and at the time of purchase of the year 1969 or 1972, he
would have aged about approximately 18 years. Therefore, the 1 st defendant
bound to prove that he had source of income at that age to purchase the
property. But, he failed to enter into witness box nor he stated that he had
source of income to purchase the property in the year 1969 or 1972. When
the 2nd defendant specifically denied in his written statement that the 1st
defendant was aged below 18 years and not having independent source of
income in the year 1969 or 1972, the burden is heavily casted upon the 1 st
defendant to establish that he had a separate source of income at his age of
18 years, but the 1st defendant remained exparte. In such circumstances, the
court is entitled to draw adverse inference against him as it is a settled
proposition of law. But, both the courts below failed to appreciate this
aspect. Though the 2nd defendant specifically denied the 1st defendant's
source of income in the year 1969 or 1972, the defence taken by the 2 nd
defendant legally probablise that his father would have purchased the
property in the name of his eldest son/1st defendant as he was not able to
secure in his name as per Conduct Rules, since he was a Central
Government employee. It also probablise that since the properties are
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purchased by the father Nachimuthu immediately he would have obtained
power of attorney from the 1st defendant in the year 1973 itself. The case of
plaintiff is that he was informed by the 1st defendant that already power of
attorney was cancelled long back and he became the absolute owner,
thereby he entered into sale agreement. As per the contention of 2 nd
defendant, the power of attorney was in force in the name of his father at
the time of his purchase on 27.04.2006. After the purchase, the original
power of attorney also been handed over to him and the same was also been
marked on his side as Ex.B4. If at all, the power of attorney was cancelled
by the 1st defendant, he ought to have specifically mentioned the date on
which it was cancelled. In his written statement, he simply stated that the
power of attorney was cancelled long back, which is not sufficient to
conclude that the power deed was cancelled. He must specifically state the
date on which it was cancelled, but he failed nor the plaintiff was also
established that the power of attorney was cancelled at the time of alleged
sale agreement entered with the 1st defendant. If the plaintiff is the bonafide
purchaser, he ought to have verified with all encumbrance, but he deposed
that based on the oral information given by the 1st defendant, he came to
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know that power of attorney was cancelled. But, no document was
produced about the cancellation of power of attorney on the side of plaintiff
nor by the 1st defendant. Therefore, when there is no material evidence to
establish that the said power deed was cancelled, it is presumed that power
deed was in force on the date of execution of sale deeds in favour of 2nd
defendant by the power of attorney holder/his father. Furthermore, the 2 nd
defendant proved that as a bonafide purchaser, he purchased the property
from the power of attorney holder through the sale deed dated 27.04.2006.
But without any material evidence on record, the trial court as well as
appellate court erroneously presumed that the power of attorney was
already been cancelled as such is total misconception of fact and the
findings to that effect is liable to be set aside. Accordingly, the question of
law (c) is answered.
15. As per the contention of plaintiff, on the date of sale agreement
itself, possession was handed over and the xerox copies of original
document was also handed over to him. When the 2nd defendant contended
that after the death of his father, his brother/1st defendant demanded the
original documents of the suit property, he got xerox copy of the same and
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the same was in the hands of plaintiff, who is close relative of 1 st defendant.
Admittedly, the plaintiff and the 1st defendant are close relative and the
same was not denied by the plaintiff. On the side of plaintiff, xerox copy o
sale deeds were marked, but the original documents were produced by the
2nd defendant. In respect of possession of property, as per the evidence of
2nd defendant, till his life time, his father was collecting rent from the
tenants, who are residing in the suit property. After the purchase, he
effected mutation of records. For that, he produced E.B. receipt and
property tax receipts marked as Ex.B1 and Ex.B2. When the plaintiff
specifically claimed that possession was given to him as part performance
of terms of sale agreement, he bound to prove the same on his own
evidence, but on perusal of records, it reveals that he was not in possession
of property. For that, the trial judge held that the properties were under
occupation of tenants. Therefore, the plaintiff's possession is deemed to be
constructive one. But, without any such pleadings on the side of plaintiff,
the findings rendered by the trial judge while deciding the issue No.4 as
such is totally erroneous one. Moreover, in the prayer column of plaint, one
of the prayer is “delivering and confirming possession of suit property to
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the plaintiff” which itself shows that the plaintiff is not certain about the
possession of property. But the courts below failed to appreciate the said
aspect and erroneously granted the relief in favour of plaintiff.
16. Furthermore, the conduct of parties also to be taken into
consideration, which is one of the mandatory requirement to avail the
discretionary relief of specific performance. Admittedly, the plaintiff and
the 1st defendant are close relatives and witnesses also clearly associated
with them and in the written statement, the 1st defendant submits that he
entered into sale agreement with the plaintiff, but not entered into witness
box and remained exparte. The plaintiff had also issued notice to the 1st
defendant expressing that he is always ready to perform his part of contract
within a stipulated period along with demand draft for the balance amount.
In order to manifest on the side of plaintiff as if he is always ready to
perform his part of agreement and approached the court with clean hands,
even the courts below also held that the plaintiff proved his readiness and
willingness and so, as a bonafide purchaser, he entered into a sale
agreement, accordingly, the specific performance relief was granted. But
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the courts below failed to take note of the fact that the plaintiff and 1st
defendant colluded together and created a sale agreement. Admittedly,
Ex.A1 sale agreement said to be an unregistered document, but stated that
signed before the notary, which would not sufficient to prove the truth and
sanctity to the agreement. Apart from that, the plaintiff is expected to
establish that he approached the court with clean hands, but in the evidence
of P.W.2 and 3, though they have stated that the agreement was drafted in
their presence, parties have signed, but the collusion between the plaintiff
and the 1st defendant was clearly established by the 2nd defendant as
discussed above. However, the 2nd defendant raised allegation that there is a
collusion between the plaintiff and the 1st defendant and the same was not
disproved by the 1st defendant by entering into a witness box, who is a right
person to prove that he offered the property to sell to the plaintiff, but he
failed to deny the allegation levelled against him, which itself shows that he
impliedly admits that he colluded with the plaintiff and created this
agreement.
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17. Furthermore, the plaintiff also not proved that as a bonafide
purchaser, he entered into sale agreement with the 1st defendant for the
reason that on the date of alleged agreement, the registered power of
attorney was in force and there is no proof that the plaintiff verified the
encumbrance before entering into the sale agreement. Therefore, the
conduct of both plaintiff and 1st defendant clearly established that both
were close relatives and colluded together and created unregistered sale
agreement after coming to know about the sale deed in order to defraud the
2nd defendant's claim, thereby the conduct of parties proves that they have
not approached the court with clean hands more particularly, the plaintiff.
Therefore, the legal principles on specific performance held by the Apex
Court reported in 1995 (5) SCC 115 in the case of N.P.Thirugnanam vs.
R.Jagan Mohan Rao reads as follows :-
“It is settled law that remedy for specific performance is an
equitable remedy and is in the discretion of the court, which
discretion requires to be exercised according to settled principles
of law and not arbitrarily as adumbrated under Sec. 20 of Specific
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Relief Act, 1963.......”
Hence, the person, who approached the court with unclean hands is not
entitled to the relief. Accordingly, issue Nos.(a) and (b) are answered.
18. Normally, this court should not interfere with the fact findings
rendered by the courts below, but if it is not properly appreciated and the
findings are perverse in nature, this court is entitled to cause interference as
discussed above. Moreover, the trial court has not appreciated the evidence
as well as conduct of parties properly, more particularly, the trial judge
erroneously presumes and concludes that the power of attorney was already
cancelled without any material evidence, which itself shows that the trial
judge not applied his mind. So also, the first appellate judge, when there is
material evidence adduced on the side of 2nd defendant to establish that he
is a bonafide purchaser of the property, without appreciating the evidence
on his side, erroneously granted the relief in favour of plaintiff as such is
totally perverse and liable to be set aside. Accordingly, issue no.(d) is
answered. Moreover, the authority relied on by the 2nd defendant is
squarely applicable to the facts of the case.
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19. In view of the above, this Second Appeal is allowed and the
findings rendered by the courts below in A.S.No. 5 of 2012 by the learned
II Addl. District Judge, Erode confirming the findings rendered in
O.S.No.321 of 2010 by the II Addl. Subordinate Judge, Erode is set aside.
Suit is dismissed with exemplary cost of Rs.25,000/-. No costs.
Consequently, the connected Miscellaneous Petition is closed.
05.03.2025
Index : Yes / No
Internet : Yes / No
Speaking/Non-speaking order
rpp
To
II Addl. District Judge, Erode.
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T.V.THAMILSELVI, J.
rpp
05.03.2025
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