Madras High Court
Manimekalai vs Murugan(Died) on 20 March, 2025
Author: G.R.Swaminathan
Bench: G.R.Swaminathan
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved On : 21.02.2025
Pronounced On : 20.03.2025
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AND
THE HONOURABLE MR.JUSTICE M.JOTHIRAMAN
A.S.(MD)Nos.53 of 2016, 164 of 2024 and CRP.(MD)No.1372 of 2024
and
CMP.(MD)Nos.3649 & 3650 of 2016 & 8397 of 2024
AS.(MD)No.53 of 2016
Dinakaran(Died)
1.Manimekalai
2.Rajkumar
3.Jeyamani ... Appellants
Vs.
Murugan(Died)
1.Parameshwari
2.Maruthamuthu Pandy
3.Pandiyammal
4.Rajalakshmi
5.The Central Bank of India,
Seelayampatty, Theni,
Rep.by its
1/33
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
Branch Manager. ... Respondents
(Minors R2 & R3 are declared as major and the guardianship of their
mother R1-Parameshwari is discharged vide common order dated
05.04.2024 made in CMP.(MD)Nos.3627 & 3629 of 2024 in AS.
(MD)No.53 of 2016)
PRAYER : Appeal is filed under Section 96 of the Code of Civil
Procedure, to set aside the judgment and decree dated 26.08.2015 passed
by the learned Additional District Judge, Theni, Theni District made in
O.S.No.18 of 2006.
AS.(MD)No.164 of 2024
Dinakaran(Died)
Rajkumar ... Appellants
Vs.
Murugan(Died)
1.Parameshwari
2.Maruthamuthu Pandy
3.Pandi Ammal
4.Rajalakshmi ... Respondents
(Minors R2 & R3 are declared as major and the guardianship of their
mother R1-Parameshwari is discharged vide common order dated
14.02.2025 made in CMP.(MD)Nos.2455 & 2456 of 2025 in AS.
(MD)No.164 of 2024 & CRP.(MD)No.1372 of 2024)
PRAYER : Appeal is filed under Order 41(i) & 2 r/w Section 96 of the
Code of Civil Procedure, to set aside the judgment and decree dated
2/33
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
26.08.2015 passed by the learned Additional District Judge, at
Periyakulam, Theni District made in O.S.No.48 of 2006.
CRP.(MD)No.1372 of 2024
Dinakaran(Died)
Jeyamani(Died)
1.Manimekalai
2.Rajkumar ... Petitioner
Vs.
1.Sikkandar
Murugan(Died)
2.Parameshwari
3.Maruthamuthu Pandy
4.Pandi Meena
5.Rajalakshmi ... Respondents
(Minors R2 & R3 are declared as major and the guardianship of their
mother R1-Parameshwari is discharged vide common order dated
05.04.2024 made in CMP.(MD)Nos.3627 & 3629 of 2024 in AS.
(MD)No.53 of 2016.)
PRAYER : Civil Revision Petition filed under Section 115 of the Code
of Civil Procedure, to set aside the order passed in O.P.No.1 of 2010 on
the file of the learned Additional District Judge, Theni dated 26.08.2015.
For Appellant : Mr.R.Suriyanarayanan,
in A.S.(MD)No.164 of 2024
and for petitioners
in CRP.(MD)No.1372 of 2024.
3/33
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
For R1 & R4 : Mr.Anand Chandrasekar,
in AS.(MD)No.53 of 2016 for M/s.Sarvabhauman Associates
and AS.(MD)No.164 of 2024.
For R2 & R4 : Mr.Anand Chandrasekar,
in CRP.(MD)No.1372 of 2024 for M/s.Sarvabhauman Associates
For R5 : Mr.B.Rajesh Saravanan
in AS.(MD)No.53 of 2016.
COMMON JUDGMENT
(Judgment of this Court was delivered by M.JOTHIRAMAN, J.)
The unsuccessful defendants Nos.2, 3 and 5 have preferred the
appeal in A.S.(MD)No.53 of 2016 against the judgement and decree
dated 26.08.2015 in O.S.No.18 of 2006 on the file of the Additional
District Court, Theni.
2.The unsuccessful second defendant has preferred the appeal in
A.S.(MD)No.164 of 2024 against the judgement and decree dated
26.08.2015 in O.S.No.48 of 2006 on the file of the Additional District
Court, Theni.
3.The unsuccessful petitioners have preferred civil revision
petition in CRP.(MD)No.1372 of 2024 against the order passed in
O.P.No.1 of 2010 on the file of the Additional District Court, Theni.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
4.For the sake of convenience, the parties are referred as per their
rank before the trial Court.
5.Brief case of the plaintiffs in O.S.No.18 of 2006 is as follows:-
The suit has been filed for specific performance and for permanent
injunction. The defendants 1 to 3 have purchased suit schedule property
from one Mahendren on 16.09.1997 in the name of the first defendant.
The defendants 1 to 3 have agreed to sell the suit property for a sum of
Rs.17,06,000/- and received a sum of Rs.2,00,000/- as advance and
entered into agreement on 26.12.2005. On the request made by the first
and third defendants, the first plaintiff has paid a sum of Rs.50,000/- and
an endorsement was made on the back side of the sale agreement.
Therefore, the defendants have received totally a sum of Rs.2,50,000/-
from the first plaintiff and the terms of the sale agreement is that within
three months time, they have to execute sale deed, after receiving balance
sale consideration of Rs.15,10,000/-. It is mentioned in the sale
agreement that the first defendant has received loan for a sum of
Rs.25,000/- on 15.10.2002 from one M.A.Chikkandar. Further, the first
defendant has also executed two pro-notes dated 15.10.2002 and
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
16.10.2002 for a sum of Rs.75,000/- and Rs.1,00,000/- respectively. In
total, for a sum of Rs.2,00,000/-, the first defendant has handed over the
possession of the suit property. Further, it is also mentioned that the loan
obtained from the Bank also to be settled, after survey the lands, the
balance sale consideration of Rs.13,10,000/- has to be received. If the
plaintiffs failed to perform his part of contract, then the advance amount
paid by the plaintiffs will be forfeited. If the defendants failed to
perform their part of contract, then, the plaintiffs are entitled to seek
remedy before the Court of law. As per the Varthamana agreement from
the said Chikkandar and as per the agreement of sale, the plaintiffs are in
possession of the suit schedule property. The plaintiffs were ready and
willing to pay the balance amount of sale agreement and approached the
defendants in person. But the defendants did not turn to perform their
part of contract. The plaintiff issued legal notice dated 20.03.2006. The
plaintiff has also sent telegram notice dated 13.03.2006 and 20.06.2006.
The defendants have chosen to come to the Sub Registrar Office, but not
executed the sale deed. The plaintiffs approached the first defendant
requested to redeem mortgage from Bank and thereafter, execute the sale
deed. The plaintiffs have submitted lodgement schedule for a sum of Rs.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
13,10,000/- since the plaintiffs are in possession of the suit property and
seeks for relief of specific performance of the contract. Hence, the suit.
6.Brief Case of the defendants is as follows:-
The first defendant has filed written statement adopted by the
defendants 2 & 3. The properties mortgaged to one Chikkandar for a
sum of Rs.25,000/- is different property and the claim made by the
plaintiffs is different property. It is denied the made over received from
one Chikkandar. The defendants were waited in the Sub Registrar
Office, but the plaintiffs were not ready with the balance consideration to
perform their part of contract.
7.Brief case of the fourth respondent is as follows:-
The fourth defendant is not a party to the impugned sale agreement
dated 26.12.2005. The plaintiffs have got knowledge about the title
deeds deposited with the Bank. The plaintiffs ought to have taken steps
to get back the original title deeds under the custody of the fourth
defendant by way of equitable mortgage. Hence, the agreement for sale
of the suit property, without discharging of mortgage loan is against the
provisions of law.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
8.Brief case of the fifth defendant is as follows:-
The first defendant died and the fifth defendant impleaded as per
the order in I.A.No.294 of 2014 dated 08.09.2014. It is admitted that the
first respondent had mortgaged the suit properties for a sum of
Rs.75,000/- and for a sum of Rs.1,00,000/-, after executing promissory
note dated 15.10.2002 and 16.10.2002 respectively from the said
Chikkandar. The first defendant is the Kartha of the family and they are
in the possession of the suit property. It is denied that the first defendant
has not executed another agreement dated 05.05.2005 in favour of the
said Chikkandar. It is admitted that the defendants 1 to 3 have entered
into agreement dated 26.12.2005 with the first plaintiff. It is denied that
the possession of the suit property was not handed over to the first
plaintiff. The first plaintiff was not ready and willing to perform his part
of contract, within the time stipulated in the sale agreement. The first
plaintiff or his legal heirs have no right based on the sale agreement or
any other agreements. It is denied that the defendants tried to evict the
first plaintiff from the suit property. The first defendant has deposited a
sum of Rs.2,00,000/- before the Court and the plaintiffs can withdraw the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
amount after succeeding their case in O.P.No.1 of 2010. The plaintiffs
failed to implead the said Chikkandar as a party to the suit and therefore,
the suit is bad for non-joinder of necessary party.
9.The suit in O.S.No.48 of 2006 has been filed for restraining the
defendants and their men and agent from interfering with the plaintiffs
peaceful possession and enjoyment of the suit property till the mortgage
amount is fully discharged by the defendants.
10.Brief Case of the plaintiffs in O.S.No.48 of 2006 is as follows:-
The suit property is originally belonged to the first defendant. He
borrowed a sum of Rs.25,000/- from one M.A.Chikkandar on 14.10.2002
for which he has executed simple mortgage registered deed in respect of
half portion in the suit property on 14.10.2002. Further, the first
defendant borrowed a sum of Rs.75,000/- and Rs.1,00,000/- by executing
pro-note from the Chikkandar on 15.10.2002 and 16.10.2002
respectively. Though the first defendant borrowed a sum of Rs.
2,00,000/-, he is not in a position to pay the monthly interest, thus, he has
executed another Varthamana agreement on 16.10.2002 in favour the said
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
Chikkandar. As per terms of the said agreement, Chikkandar permitted
to enjoy half portion of the suit property in-lieu of interest for the period
of 2 ¼ years or till mortgage is fully discharged. Since the first
defendant is not in a position to repay his mortgage loan, he allowed
Chikkandar to take the entire possession of the property, as such, on
05.05.2005, the first defendant executed another agreement for a period
of three years, in respect of the entire suit property. The said Chikkandar
with the consent of the first defendant has made over registered simple
mortgage deed dated 14.10.2002 to the plaintiffs on 26.12.2005. The
said Chikkandar borrowed a sum of Rs.1,75,000/- from the plaintiffs and
made over two pro-notes, which was executed by the first defendant.
The said Chikkandar has also made over the Varthamana agreement
dated 05.05.2005 in favour of the plaintiffs and also surrender possession
of the suit property. Prior to the made over of the agreement, the
plaintiffs agreed to purchase the suit property. As per the terms of sale
agreements, the possession of the suit property vested with the plaintiffs.
As proposed purchaser, the plaintiffs invested huge amount for
developing the suit property. However, the defendants delayed the
execution of sale deed as per the terms of the sale agreement. The
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
plaintiffs are taking steps to seek help of the Court for specific
performance of the contract. Till the expiry of the mortgage period, their
possession from the suit property should not be disturbed. Hence, the
suit.
11.Brief Case of the defendants is as follows:-
In the sale agreement, there is no mention about the possession and
handing over of about the made over agreement.
12.The first defendant ie., Late.Dinakaran in O.S.No.18 of 2006 as
well as in O.S.No.48 of 2006 has filed a petition under Section 83 of the
Transfer of Property Act in O.P.No.1 of 2010 seeking for the relief to
redeem a mortgage as against one M.A.Chikkandar and plaintiffs.
13.The third respondent has filed a counter and the respondents 4
to 6 were adopted the same. The petitioner suppressed the fact that the
suit in O.S.No.18 of 2006 has been filed for seeking relief of specific
performance and the same is pending for adjudication. The debt amount
mentioned in the petition has been included in the sale agreement entered
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
by the second respondent. The petitioner was permitted to enjoy the suit
property and to avail crops in lieu of paying rent. There is no necessity
to deposit a sum of Rs.58,000/- by way of two Demand Draft before the
Court.
14.Based on the above pleadings, the trial Court has framed the
following issues in O.S.No.18 of 2006:-
i)Whether the agreement of sale dated 26.12.2005 is executed and
the same is binding on the defendants?
ii)Whether the plaintiffs are ready and willing to perform their part
of contract?
iii)Whether the mortgage deed executed in favour of the fourth
defendant is binding on the plaintiffs?
iv)Whether the plaintiffs are entitled for the relief of specific
performance?
v)What other reliefs the plaintiffs are entitled?
14(ii).O.S.48 of 2006:-
i)Whether the plaintiffs are entitled for the relief of permanent
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
injunction?
ii)Whether the plaintiffs are in possession and enjoyment of the
suit property
iii)What other reliefs the plaintiffs entitled?
14(iii).O.P.No.1 of 2010:-
i)Whether the petition has to be allowed or not?
15.On the side of the plaintiffs, the wife of the first plaintiff
Mrs.Parameshwari was examined as P.W.1, one Mr.Palanichamy was
examined as P.W.2, one Mr.Muthu was examined as P.W.3 and the first
respondent in O.P.No.1 of 2010, Mr.Chikkandar was examined as P.W.4
and Ex.A1 to Ex.A25 were marked. On the side of the defendants, one
Mr.Rajkumar was examined as D.W.1 and Ex.B1 to Ex.B11 were
marked.
16.Findings of the trial Court:-
i)The plaintiffs have established that the first plaintiff was ready
and willing to perform his part of contract. The plaintiffs have also
deposited the balance sale consideration of Rs.13,10,000/-, after filing
the suit.
ii)The defendants have not taken any steps to cancel the agreement
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
of sale. The defendants did not say anything about the loan borrowed
from the Bank and therefore, the loan borrowed from the fourth
defendant Bank is not binding on the plaintiffs.
iii)Though the defendants have taken a plea that Ex.A2 is not a
sale agreement and the same has been executed for the purpose of getting
loan from the plaintiffs, the defendants have failed to prove the same.
iv)The first defendant has filed O.P.No.1 of 2010 in which the first
defendant had admitted that a sum of Rs.2,50,000/- has been borrowed
from one Chikkandar. The plaintiffs are entitled for relief of the specific
performance and also entitled for the permanent injunction. As per
Ex.A2, the possession of the suit properties was handed over to the first
plaintiff. The first defendant is not entitled for the relief of redemption
of mortgage.
17.Points for determination arises in these appeals and civil revision
petition:-
i)Whether the first plaintiff was ready and willing to perform his
part of contract?
ii)Whether the plaintiffs are entitled for the relief of specific
performance as prayed for the suit?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
iii)Whether the plaintiffs are entitled for permanent injunction as
prayed for?
iv)Whether the petition filed under Section 83 of the Code of Civil
Procedure is to be allowed?
18.The learned counsel appearing for the appellants / defendants 2
and 3 would submit that the plaintiffs have not proved that the
defendants are bound by certain unregistered documents, as an
agreement of sale, on which the suit for specific performance could be
enforced in the Court of law. The Court below had erroneously applied
the principle of burden of proof. The Court below erred in taking into
consideration the unregistered document particularly Ex.A2 which
cannot be made over upon the legal heirs of the deceased C.Murugan /
plaintiff. He would submit that petition in O.P.No.1 of 2010 has been
filed by the legal heirs of the deceased first defendant for redemption of
mortgage ought to have held that there is no binding for specific
agreement. Instead allowing the petition and decreeing the suit for
specific performance is not sustainable under law. The suit properties are
primarily subjected to the mortgage and in the said circumstances, Ex.A2
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
is only a mortgage deed, which had been made over to the plaintiffs. The
Court below ought to have found that Ex.A2 and Ex.A18 to Ex.A21 were
made over on the same day, ie, 26.12.2005, which would clearly shows
the intention of the plaintiffs. The value of the suit property has been
substantially increased since the initiation of the suit till the date of trial.
Further, the learned counsel also reiterated the grounds raised in the
appeals as well as in the revision petition.
19.Per contra, the learned counsel for the respondents / plaintiffs
would submit that the plaintiffs were always ready and willing to
discharge their part of obligation as per the terms mentioned in the sale
agreement. The plaintiffs established their continuous readiness and
willingness. Through the evidence of P.W.4, it has been clearly
established as to how the possession was handed over to the first plaintiff
and the loan borrowed by the first defendant has also been clearly
established. There is no reason to interfere with the judgment and decree
passed by the trial Court.
20.It is the specific case of the plaintiffs is that the suit property is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
originally belonged to the first defendant Thiru.R.Dinakaran. He
borrowed Rs.25,000/- from one M.A.Chikkandar on 14.10.2002, for
which he executed a simple mortgage deed in respect of half of the suit
property on 14.10.2002 in favour of the said Chikkandar. The first
defendant borrowed Rs.75,000/- and Rs.1,00,000/- and executed two
pro-notes dated 15.10.2002 and 16.10.2002 respectively in favour of the
said Chikkandar. The first defendant executed another Varthamana
agreement on 16.10.2002, in which, the said Chikkandar is permitted to
enjoy the half portion of the suit property in the interest of lien for the
period of 2 ¼ years. Accordingly, the said Chikkandar took possession
and enjoyment.
21.According to the plaintiffs, the first defendant is not in a
position to repay his mortgage debt, he allowed the Chikkandar to take
entire suit property. As such on 05.05.2005 the first defendant executed
another agreement for a period of three years, in respect of entire suit
property. According to the plaintiffs, the defendants 1 to 3 have entered
and agreement of sale with the the first plaintiff on 26.12.2005, for a total
sale consideration of Rs.17,60,000/- and revealed a sum of Rs.2,00,000/-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
as advance. The said Chikkandar with consent of the first defendant has
made over the simple mortgage dated 14.10.2002 to the plaintiffs on
26.12.2005. Further, the Chikkandar borrowed Rs.1,75,000/- from the
plaintiffs and made over the two pro-notes, which were executed by the
first defendant. He has made over the Varthamana agreement in favour
of the the plaintiffs on 26.12.2005 and also surrender possession of the
suit property with the plaintiffs. On 15.01.2006, the defendants 1 to 3
received a sum of Rs.50,000/- from the plaintiffs and made an
endorsement in the back side of the agreement.
22.The transactions held between the first defendant and
M.A.Chikkandar, the first defendant and the first plaintiff & the first
plaintiff and M.A.Chikkandar are as follows:-
14.10.2002 - The first defendant borrowed a sum of Rs.
25,000/- from one M.A.Chikkandar, for which, he has
executed simple mortgage deed.
15.10.2002 - The first defendant borrowed a sum of
Rs.75,000/- from the said M.A.Chikkandar and executed a
pro-note.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
16.10.2002 - The first defendant borrowed a sum of
Rs.1,00,000/- and executed a pro-note in favour of the said
M.A.Chikkandar.
16.10.2002 - The first defendant executed another
Varthamana agreement in favour of the said
M.A.Chikkandar. As per the terms of the said agreement,
Ex.A21, the said M.A.Chikkandar is permitted to enjoy the ½
portion of the suit property, in lieu of interest, for the period
of 2 ¼ years, till the mortgage deed is fully discharged by the
first defendant.
05.05.2005 - The first defendant executed another agreement
for a period of three years in favour of the said
M.A.Chikkandar in respect of the entire portion of the suit
property. As per the terms of the said agreement,
M.A.Chikkandar has to enjoy the suit property in lieu of
interest, for the further period of three years.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
26.12.2005 - M.A.Chikkandar, with a consent of the first
defendant, has made over the registered simple mortgage
deed dated 14.10.2002 in Ex.A14 to the plaintiffs. The said
M.A.Chikkandar borrowed a sum of Rs.1,75,000/- and made
over two pro-notes, which was executed by the first
defendant.
26.12.2005 - the first plaintiff and the defendants 1 to 3
entered into an agreement.
26.12.2005 - M.A.Chikkandar further has made over the
Varthamana agreement dated 05.05.2005 in Ex.A22 in favour
of the plaintiffs and also surrender the possession of the suit
property with the plaintiffs.
24.The defendants 1 to 3 have contended that the total sale
consideration has been shown as lesser amount. The fifth defendant has
chosen to file written statement on 28.05.2015, wherein it has been
admitted that the agreement of sale entered into between the parties in
Ex.A2 dated 26.12.2005. The first defendant has chosen to file O.P.No.1
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
of 2010 wherein it has been admitted the existence of Ex.A2 sale
agreement and it has been contended that the defendants were ready and
willing to perform their part of contract and the first plaintiff has failed to
perform his part of contract. As per Ex.A2 agreement of sale, suit
schedule properties originally belonged to the first defendant
Thiru.R.Dinakaran. The first defendant's daughter Manimegalai, who is
the second defendant and the first defendant's son Rajkumar, who is the
third defendant have also signed in the agreement of sale. The recitals
found in Ex.A2 shows that the total sale consideration was fixed for a
sum of Rs.17,60,000/-. A sum of Rs.2,00,000/- has been received as
advance. Sale should be completed within three years. It is also
mentioned that the first defendant has borrowed a sum of Rs.25,000/-
from M.A.Chikkandar on 14.10.2002 for which he has executed simple
mortgage deed. The first defendant borrowed a sum of Rs.75,000/- on
15.10.2002 and also borrowed a sum of Rs.1,00,000/- on 16.10.2002 and
executed two pro-notes in favour of the said M.A.Chikkandar. Thus, the
first defendant has borrowed Rs.2,00,000/- from the said
M.A.Chikkandar. The said M.A.Chikkandar handed over the possession
of the suit property in favour of the plaintiffs. The defendants have to
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
clear the debt availed from the Bank and on receiving the balance
amount of Rs.13,60,000/-, they have to execute the sale deed. A perusal
of Ex.A2 reveals that the first and third defendants has received a sum of
Rs.50,000/- on 15.01.2006 from the first plaintiff and an endorsement
has also been made on the back side of the sale agreement-Ex.A2 to that
effect. The recitals of Ex.A2 shows that the terms and conditions have
also been incorporated in the agreement. As per the terms of the sale
agreement, the possession of the suit property vested with the plaintiffs.
According to the plaintiffs, from the execution of sale agreement, they
are ready and willing to purchase the suit property. The plaintiffs issued
legal notice in Ex.A3 dated 02.03.2006 to the defendants and the sane
has been received by the first and third defendants on 03.03.2006 in
Ex.A4. In Ex.A3, it has been stated that the plaintiffs are ready and
willing to perform their part of contract by paying balance consideration
of Rs.13,10,000/-, after deducting the amount payable to
M.A.Chikkandar and the plaintiffs are ready to come to the Sub Registrar
Office on 13.03.2006 at 10.00 am with balance consideration and they
have also requested the defendants to execute the sale deed, after
receiving the sale consideration. Ex.A6 dated 10.03.2006 is Telegram
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
issued by the plaintiffs to the defendants 1 to 3. Ex.A9 is the gist receipt
dated 14.03.2006 paid in the name of the first defendant by the first
plaintiff. Ex.A11 is the rejoinder notice dated 27.03.2006 issued by the
first plaintiff to the defendants 1 to 3 informing the typographical error
with regard to the survey number extent in the earlier notice Ex.A3.
25.It is not in dispute that the defendants 1 to 3 did not give any
reply to the first plaintiff and did not execute the sale deed. The time
stipulates in the sale agreement expires on 26.03.2006. The defendants
contended that the fist plaintiff has not come to the Sub Registrar Office
with the balance sale consideration. It is seen from Ex.B2 and Ex.B3
sale deeds dated 13.03.2006, the second defendant Manimegalai has
signed as one of the witnesses in the above said documents. Similarly, in
Ex.B6 sale deed dated 13.03.2006, the defendants 1 and 2 have signed as
witnesses in the documents. Therefore, the contention of the plaintiffs is
that the defendants 1 & 2 were in the Sub Registrar Office on 13.03.2006
is acceptable one, since the plaintiff was in the capacity of the paying
balance sale consideration on 13.03.2006. It is seen from Ex.A25,
Laxmivilas Bank statement in the name of first plaintiff that a sum of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
Rs.13,21,211/- is available in his account. D.W.1 D.Rajkumar in his
cross examination categorically admits that as per the sale agreement,
within three months, the defendants have to execute sale deed and also
he admits that legal notice received by them. He also admits that he
went to the Sub Registrar on 13.03.2006, but not intended to executed
sale deed. He also admits he did not sent any reply notice to the
plaintiffs. He also admits that the defendants did not sent notice saying
that the plaintiffs were not ready and willing to perform his contract. He
admits that after filing the suit, the plaintiffs deposited the balance
consideration of Rs.13,10,000/- in the Court. From the evidence of D.W.
1 clearly shows that he was in Sub Registrar Office, Periyakulam on
13.03.2006. The plaintiffs was always ready and willing to discharge his
obligation to perform his part of agreement.
26.It is pertinent to mention that the requirements of Section 16(c)
of the Specific Relief Act enumerates that continuous readiness and
willingness on the part of the plaintiffs is a condition precedent to grant
relief of specific performance. Right from the date of execution till the
dated of decree, he must be prove that he is ready and has always been
willing to perform his part of contract.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
27.It is seen from Ex.A2 sale agreement that the defendants 1 and
2 have to repay the Bank loan and they have to submit the parental
document of the suit property before registration. The fourth defendant
filed written statement, wherein it has been stated that the Bank is not a
party to the impugned sale agreement dated 26.12.2005 and the plaintiffs
has got knowledge about the title deeds deposited with the Bank. It has
also been stated that there is a mortgage loan, which was subsisting and
loan has become over due, more than Rs.5,00,000/-. It is seen from
Ex.A2 sale agreement that there is recitals about the title deeds deposited
with the Bank by the defendants 1 to 3.
28.P.W4 Chikkandar had deposed in his chief examination about
the simple mortgage deed executed by the first defendant on 14.10.2002
for a sum of Rs.25,000/-. Two pro-notes executed by the first defendant
have also been mentioned. The first defendant also borrowed totally a
sum of Rs.2,00,000/- and he was not in a position to pay monthly
interest, thus, the first defendant executed another Varthamana agreement
on 16.10.2002 in favour of him. As per the said terms, he was permitted
to enjoy three acres four cents of the suit property in lieu of interest.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
Since the first defendant was not in a position to repay his mortgage debt,
the first defendant allowed him to take the entire portion of the suit
property by executing another agreement dated 05.05.2005. As per the
above said agreement, he was in possession and enjoyment of the
property in lieu of the interest. It has also been stated that the first
defendant informed him that he is going to sell the suit property in
favour of the plaintiffs and he has reserved his right to sell the suit
property. Therefore, P.W.4, with the consent of the first defendant, has
made over the registered simple mortgage deed to the plaintiffs on
26.12.2005, after borrowing a sum of Rs.2,00,000/- from the plaintiffs.
He has also surrendered the possession of the suit property with the
plaintiffs. P.W.4 in his cross-examination has deposed that the first
defendant has permitted to enjoy to an extent of three acres and 47 cents,
in lieu of interest. Ex.A23 made over agreement dated 26.12.2005
relates to three acres and 4 cents and Ex.A22 Varthamana agreement
dated 05.05.2005 speaks about three years period.
29.The learned counsel appearing for the appellants/defendants 1
to 3 would submit that Ex.A2 is not a sale agreement and it has been
executed for the purpose of obtaining loan from the plaintiffs. It is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
pertinent to mention that the onus of proving that the sale agreement is
only with regard to some money transaction and that there is no intention
to sell the suit property is upon the defendants, who were made
contention that once execution of sale is admitted. There is no evidence
adduced on behalf of the appellants/defendants to sustain such claim.
The appellants also did not take any steps for cancelling the sale
agreement, even though, it has been contended that the sale agreement
was executed only with regard to some money transaction and they were
not pleaded that they discharged their liability in respect of the money
said to have been borrowed from the plaintiffs. The appellants/
defendants have not examined any independent witnesses to show that
the sale agreement was executed only with regard to the money
transaction and there is no intention to sell the suit property. It is also
pertinent to mention that after execution of Ex.A2, on 15.01.2006, the
first and third defendants had received a sum of Rs.50,000/- and made an
endorsement on the back side of the document. Evidence adduced by
P.W.4 Chikkandar in his chief examination, has been admitted by the
fifth respondent in her written statement.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
30.It is pertinent to mention that plea of material alteration on the
negotiable instruments is an important aspect, because, it leads to root of
the matter. So far as Section 87 of the Negotiable Instruments Act, which
which deals with the material alteration, is it is so the alteration would
change the legal character of the instrument. D.W1 in his proof affidavit
and the fifth defendant in her written statement have categorically
admitted the above said two pro-notes executed by the first defendant
and borrowal of Rs.75,000/- and Rs.1,00,000/- respectively and also
admitted the factum of receiving Rs.25,000/- from P.W.4 Chikkandar. It
is seen from the petition filed in O.P.No.1 of 2010 that the first defendant
has stated about the borrowal of the money based on two pro-notes and
about execution of simple mortgage deed for a sum of Rs.25,000/- to the
said Chikkandar P.W.4. It is pertinent to mention that according to the
plaintiffs, they were in possession as per the terms of the agreement of
sale and when one such part of performance as pleaded in terms of the
sale agreement, it has to be duly registered otherwise they cannot seek
relief based on the sale agreement. It is pertinent to mention that as to
whether an agreement of sale has to be discorded in a suit for specific
performance on the ground that the same is not a registered document. In
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
view of the specific provision made under the proviso to the Section 49
of the Registration Act, 1908, allowing unregistered document affecting
immovable property to be registered may be received as evidence of a
contract in a suit for specific performance. Therefore, the trial Court has
rightly answered the issue.
31.It is pertinent to mention that under Section 20 of the Specific
Performance Act, grant of specific performance on contract is
discretionary and it depends upon facts and circumstances of each case.
The Court would taken into consideration of the facts and circumstances
conduct of the party, recitals in the sale agreement. In the instant case,
Ex.A2 agreement for sale was executed on 26.12.2005 and the suit was
filed on 03.04.2006 and also balance sale consideration has been
deposited before the trial Court. A perusal of recitals in the agreement of
sale Ex.A2 reveals that after discharging the Bank loan the defendants 1
to 3 have to receive the parental document from the Bank and they have
to execute the sale deed. In Ex.A2, it is stated that the defendants 1 to 3 /
vendors have undertaken to discharge the loan and hand over the parental
deeds of the suit property to the plaintiffs, within the time stipulated in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
the agreement. It is pertinent to mention that in case the defendants
failed to comply with the said terms in executing sale deed, the trial
Court can very well direct to execute the sale deed, taking into
consideration of the Bank loan. The defendants have categorically
admitted the fact that the possession was handed over to the first plaintiff
based on Ex.A2 sale agreement dated 26.12.2005 and made over
agreement Ex.A21 dated 16.10.2002. The defendants did not choose to
examine any witness to prove that the first plaintiff was permitted to
enjoy the crops alone and the possession was not handed over. The
grounds raised in these appeals and the civil revision petition are clearly
answered by the trial Court. We are of the considered opinion that there
is no reason to interfere with the common judgment and decree of the
learned trial Court. The points are answered, accordingly.
32.In the result,
i)the first appeal in AS.(MD)No.53 of 2016 is dismissed,
ii)the first appeal in AS.(MD)No.164 of 2024 is dismissed,
iii)the civil revision petition in CRP.(MD)No.1372 of 2024 is
dismissed and
iv)the common judgment & decree passed in O.S.Nos.18 & 48 of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
2006 and O.P.No.1 of 2010 on the file of the learned Additional District
Judge, Theni, Theni District dated 26.08.2015 is hereby confirmed.
There is no order as to costs. Consequently, connected miscellaneous
petitions are closed.
(G.R.S., J.) & (M.J.R., J.)
20.03.2025
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
gns
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
To
The Additional District Judge, at Periyakulam, Theni District
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
AS.(MD)Nos.53 of 2016 & 164 of 2024 and CRP.(MD)No.1372 of 2024
G.R.SWAMINATHAN, J.
AND
M.JOTHIRAMAN,J.
gns
Pre-Delivery Judgment made in
A.S.(MD)Nos.53 of 2016, 164 of 2024
20.03.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/05/2025 08:20:42 pm )
