Madras High Court
M.Kalavathy vs C.Madhubala on 8 October, 2025
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan, R.Vijayakumar
2025:MHC:2336
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 23.09.2025
PRONOUNCED ON : 08.10.2025
CORAM
THE HON'BLE MR.JUSTICE C.V.KARTHIKEYAN
and
THE HON'BLE MR.JUSTICE R.VIJAYAKUMAR
A.S.(MD)No.9 of 2018
and
C.M.P(MD)Nos.452 & 453 of 2018
M.Kalavathy ...Appellant/Plaintiff
Vs.
C.Madhubala ...Respondent/Defendant
PRAYER: First Appeal is filed under Section 96 of the Civil Procedure Code,
1908, against the judgment and decree of the First Additional District
Judge(PCR), Tiruchirappalli, dated 31.01.2017, made in O.S.No.144 of 2015.
For Appellant : Mr.S.Ramakrishnan
for Mr.K.S.Vamsidhar
For Respondent : Mr.Shangar Murali
*****
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JUDGMENT
[Judgment of the Court was made by R.VIJAYKUMAR, J.]
The present first appeal has been preferred by the plaintiff in a suit for
specific performance challenging the dismissal of her suit.
(A)Pleadings before the trial Court
2.As per the plaint averments, the defendant is the owner of the suit
schedule property. The defendant's mother is alleged to have borrowed a sum of
Rs.45,00,000/- from the plaintiff and said to have executed various loan
documents evidencing the borrowing. The defendant's mother could not repay
the said loan and due to the mediation effected, the defendant had agreed to sell
the suit schedule property. The entire sale consideration has been paid.
3.The plaintiff has contended that no time limit has been fixed in the sale
agreement. As and when the plaintiff calls upon the defendant to execute the
sale agreement, the defendant has to execute the same. It is further contended
that the plaintiff has been demanding the defendant to execute the sale deed
from 15.08.2015 onwards. As per the terms of the agreement, a reasonable
period has been agreed upon between the parties and therefore, the present suit
is filed in time.
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4.It is further contended in the plaint that the defendant having been the
beneficiary of the loan borrowed by her mother and having undertaken to
discharge the loan by executing sale of the property, the plaintiff is entitled to
file a suit though the defendant is a stranger to consideration. It is further
contended that the plaintiff has been ready and willing to perform her part of the
contract at all relevant point of time and continues to remain as such.
5.The defendant has filed a written statement contending that she is not
aware of the alleged borrowings made by her mother. It is further contended
that she was never a beneficiary of the loan said to have borrowed by her
mother. The defendant had contended that the alleged agreement is a forged
document and it should be sent to the expert opinion for examining her
signature.
6.According to the defendant, the suit schedule property was purchased
out of her own funds and she had constructed a house in the said property by
availing the housing loan from HDFC Bank. She has no reason or paucity of
funds to alienate the suit schedule property.
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7.The defendant has further contended that her mother used to get herself
involved in various nefarious activities and hence she had remained absconding
for so many years. Both the plaintiff as well as the defendant's mother are
housewives. It is not known for what reason such a huge amount was given as a
loan to the defendant's mother. According to the defendant, the plaintiff may
have colluded with the defendant's mother to usurp the self acquired property of
the defendant. According to the defendant, she is residing in another State and
taking advantage of her absence in the Town, a criminal conspiracy has been
hatched to usurp her property. The defendant further submits that she intends to
initiate criminal prosecution for forging the suit sale agreement.
8.On the side of the plaintiff, the plaintiff has examined herself as P.W.1
and the plaintiff's sister has been examined as P.W.2 who had attested Ex.A1
sale agreement. Ex.A1 sale agreement dated 08.11.2014 is the only the
document marked on the side of the plaintiff. On the side of the defendant, the
defendant has examined herself as D.W.1. She has marked Ex.B.1 photograph
and Ex.B2, a provisional bank statement issued by the HDFC Bank for the
period covering 01.04.2016 to 31.03.2017.
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(B)Findings of the trial Court
9.The trial Court has proceeded to dismiss the suit on the following
grounds:-
a)The plaintiff though contends that the defendant's mother had borrowed
a sum of Rs.45,00,000/- and executed valuable securities and loan agreement
for the repayment of the said loan, those documents have not been produced.
Further, no documents have been placed so that the plaintiff had enjoyed the
benefit of the loan availed by the defendant' mother;
b)Ex.B2 Bank statement would clearly establish that the construction was
made in the suit schedule property by the defendant by availing loan from
HDFC Bank and the loan is yet to be settled;
c)The plaintiff has miserably failed to prove the passing of consideration
of Rs.45,00,000/- in the sale agreement;
d)Though Ex.A1 sale agreement is said to have been executed by the
defendant for the borrowal made by the defendant mother, the defendant's
mother has not been made either as a party to sale agreement or an attestor;
e)P.W.1 has admitted that the document executed by the defendant's
mother at the time of her borrowal was not returned at the time of execution of
sale agreement;
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f)P.W.1 has admitted that at the time of execution of Ex.A1 sale
agreement, the defendant's mother is said to have executed an undertaking
agreement in Rs.100/- stamp paper agreeing to repay the loan. The said
document has also not produced before the Court. Since another agreement for
repayment of the loan has been obtained by the plaintiff from the defendant's
mother, it is clear that no consideration has been passed under Ex.A1 sale
agreement;
g)The evidence of P.W.1 would clearly disclose that she was not ready
and willing to perform her part of the contract;
h)The evidence of P.W.1 reveals that the sale agreement was executed by
the defendant under coercion and threat exerted by the plaintiff, it was not out
of own volition of the defendant. Therefore, the sale agreement is not
enforceable. The plaintiff has not issued any legal notice to the defendant's
mother for repayment of the loan amount and no action has been taken against
the defendant's mother based upon the alleged cheque and pro-note said to have
executed by her mother. The defendant's mother has filed Insolvency Petition
and in the said petition, the plaintiff has not been made as a party. Further, the
plaintiff has admitted in her cross examination that the loan was borrowed by
the defendant's mother for her son's business and she is not aware whether the
loan amount was paid by the defendant's mother to the defendant; and
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i)When the defendant has specifically disputed her signature in the sale
agreement and has pleaded that the sale agreement should be sent for expert
opinion, the plaintiff has not taken any steps for the same. The signature found
in Ex.A1 sale agreement has not tallied with the signature of the defendant
found in the written statement, vakalat and other documents available in the
Court. The variation in the signature is clearly visible even to the naked eye.
Therefore, the plaintiff has failed to prove the execution of the sale agreement
and signature of the defendant.
10.The Ex.A1 sale agreement is an unregistered document. After the
amendment of the Registration Act in the year 2012, the sale agreement
executed after 01.12.2012 requires registration. Ex.A1 sale agreement having
been executed on 08.11.2014 is not admissible in evidence and therefore, the
suit for specific performance based upon an unregistered sale agreement is not
valid.
11.Based upon the said findings, the trial Court has proceeded to dismiss
the suit. Challenging the said judgment and decree, the present first appeal has
been preferred by the plaintiff.
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(c)Points for consideration:
a)Whether the plaintiff has proved the execution of Ex.A1 sale
agreement.?
b)Whether the plaintiff has proved the passing of consideration under
Ex.A1 sale agreement.?
c)Whether the plaintiff was ready and willing to perform her part of the
contract.?
d)Whether the plaintiff is entitled to alternative relief of refund of
advance amount.?
(D) Submission of the counsels appearing on either side
12.The learned counsel appearing for the appellant submits that the
defendant's mother had owed huge sum to the plaintiff and the plaintiff was
contemplating legal action as against the defendant's mother. In order to avoid
any such action, the defendant came forward to execute the suit sale agreement
in favour of the plaintiff. On 08.11.2014, the agreement was entered into and
the loan amount was treated as the sale consideration. The defendant had agreed
to execute the sale deed as and when called upon by the plaintiff. The trial
Court was not right in arriving at a finding that there is no sale consideration
that the plaintiff has failed to prove borrowals made by the defendant's mother.
In fact, the plaintiff had examined herself as P.W.1 and the attestor namely,
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Ex.P.W.2 had categorically deposed about the borrowings made by the
defendant's mother. When the plaintiff has established the sale consideration,
the trial Court ought to have decreed the suit as prayed for.
13.The learned counsel appearing for the appellant further submits that
the defendant had disputed her signature only for the purpose of evading the
execution of the sale deed. The trial Court was not right in comparing the
signature of the defendant found in Ex.A1 with that of the post suit documents,
namely, vakalat, written statement and other documents found in the Court.
14.The learned counsel appearing for the appellant further submits that
after executing the sale agreement in favour of the plaintiff, in order to save her
mother from legal proceedings, the defendant and her mother have colluded
with each other to avoid execution of sale deed. He further submits that the
defendant alone would be in possession of her admitted signature so that they
could be placed before the Court for comparing the same with the disputed
signature in Ex.A1. The defendant having not produced her admitted signature,
the Court could not shift the burden upon the plaintiff to establish the fact that
the plaintiff has to prove the genuineness of Ex.A1 sale agreement.
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15.The learned counsel appearing for the appellant further submits that
Ex.A1 sale agreement itself is an acknowledgment of the fact that the
defendant's mother has borrowed a sum of Rs.45,00,000/- from the plaintiff.
Therefore, the plaintiff need not prove the payment of Rs.45,00,000/- to the
mother of the defendant.
16.The learned counsel appearing for the appellant further submits that
the entire sale consideration has already been adjusted in the borrowings made
by the defendant's mother. Nothing was left to be performed on the part of the
plaintiff. Therefore, the trial Court was not right in arriving at a finding that the
plaintiff has not established her readiness and willingness to perform her part of
the contract.
17.The learned counsel appearing for the appellant further submits that
since the loan amount was settled by execution of Ex.A1 sale agreement, there
was no necessity for the defendant's mother to implead the plaintiff in the
insolvency proceedings. Therefore, non-impleadment of the plaintiff in the
insolvency proceedings initiated by the defendant's mother would not be a
ground for arriving at a finding that there was no transaction between the
plaintiff and the defendant's mother. Hence, he prayed for reversing the
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judgment and decree of the trial court and decree the suit for specific
performance as prayed for.
18.Per contra, the learned counsel for the respondent/defendant submits
that the defendant has taken a specific stand in the written statement about the
forging of her signature and had demanded that the document should be sent for
expert opinion. However, the plaintiff has failed to prove the execution of the
document. It is the case of the plaintiff that the sale consideration for the suit
sale agreement was the borrowings made by the defendant's mother. Therefore,
unless the borrowings are established, Ex.A1 sale agreement would suffer for
want of sale consideration. He further submits that the trial Court has rightly
arrived at a finding that the execution of the sale agreement has not been proved
and the plaintiff has not established the passing of sale consideration under the
said agreement. He further contends that the evidence of the plaintiff/P.W.1
establishes the fact that the plaintiff has miserably failed to prove her case.
Hence, he prayed for sustaining the judgment and decree of the trial Court.
19.We have carefully considered the submission made on either side and
perused the materials available on record.
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(E) Discussion
20.The suit for specific performance has been laid by the plaintiff based
upon Ex.A1 sale agreement dated 08.11.2014 said to have been executed by the
defendant in favour of the plaintiff. A perusal of the said document reveals that
the defendant's mother has borrowed money and due to her inability to repay the
said amount, a compromise was reached and the defendant has agreed to
execute the suit sale agreement of the suit schedule property for a sum of
Rs.45,00,000/-. It is further recorded in the document that the entire sale
consideration of Rs.45,00,000/- has already been settled. The primary defence
of the defendant is that due to misunderstanding, she has not been in terms with
her mother and she further contends that she had never executed the sale
agreement. The defendant further contends that she had never enjoyed the
benefit of borrowings made by her mother. Therefore, the entire burden would
be upon the plaintiff to establish not only the execution of Ex.A1 sale
agreement by the defendant but also the passing of consideration under the said
agreement.
21.A perusal of the deposition of P.W.1 reveals that the plaintiff is said to
have paid a sum of Rs.45,00,000/- to the defendant's mother as a commission
for getting loan of Rs.5,00,00,000/- from the Bank. Initially, the plaintiff is said
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to have paid a sum of Rs.15,00,000/- and later a sum of Rs.5,00,000/-. For the
said amount, two cheques have been issued by the defendant's mother. Both the
cheques were dishonoured when they are presented for encashment. According
to the plaintiff, the defendant's mother is said to have given another cheque for
Rs.45,00,000/- which has not been presented to the Bank. The plaintiff further
states that three pro-notes and an undertaking document executed by the
defendant's mother are in her custody. The plaintiff further states that she has
not issued any legal notice to the defendant's mother either for the dishonour of
the cheque or for repayment of the above said amount.
22.The plaintiff in her deposition had further admitted that on the date of
Ex.A1 sale agreement, the defendant's mother has executed another undertaking
document in favour of the plaintiff. That document has also not been produced
before the Court. She further submits that she is not aware of the fact that there
is a bank loan over the suit schedule property.
23.P.W.1 has further deposed that on the date of execution of Ex.A1 sale
agreement, she did not have any intention to purchase the suit schedule property
but her only intention was to get back the money paid to the defendant's mother.
She has further deposed that at the time of execution of Ex.A1 sale agreement,
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the defendant's mother has stated that she would be ready to pay the entire
amount of Rs.45,00,000/- within a period of three months. The said fact is
recorded in the undertaking agreement executed by the defendant's mother on
the same day. The plaintiff has further deposed that at the time of sale
agreement, the defendant was in Delhi and her Delhi address was not made
known to her.
24.The plaintiff has further deposed that the defendant's mother has filed
Insolvency Petition against 11 persons and she is not a party to the said
proceedings. The plaintiff has further deposed that she is not aware of the fact
whether the benefit of the borrowings were utilised for the defendant or not.
P.W.1 has further stated that she has not paid any amount directly to the
defendant.
25.A cumulative reading of Ex.A1 and the deposition of P.W.1 would
clearly indicate the following facts:-
a)Despite having the custody of pro-notes, cheques and an undertaking
document dated 08.11.2014 said to have been executed by the defendant's
mother, the plaintiff has not chosen to produce the same before the Court. Only
on production of these documents, it could be established that payment of
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Rs.45,00,000/- was made to the defendant's mother. Non-production of these
documents would clearly establish that the plaintiff has not proved the passing
of sale consideration under Ex.A1 sale agreement;
b)The plaintiff in her deposition has clearly admitted that she never had
an intention to purchase the property under Ex.A1 sale agreement. She only
wanted her money back. Even as per the deposition of the plaintiff, the mother
of the defendant has executed another undertaking document dated 08.11.2014,
undertaking to repay a sum of Rs.45,00,000/- within a period of three months.
Therefore, it is clear that even assuming that Ex.A1 sale agreement was
executed by the defendant, the same was obtained only as a security for the
borrowings made by the defendant's mother and not with an intention to enforce
the same to get a sale deed in favour of the plaintiff; and
c)The defendant has specifically disputed her signature in the Ex.A1 sale
agreement and has requested for sending the same for expert opinion. The
plaintiff has not taken any steps to send the said document for expert opinion. In
the said circumstances, the plaintiff has not discharged his burden to establish
the execution of Ex.A1 sale agreement.
26.In view of the above said categorical deposition of the plaintiff, it is
clear that the plaintiff has miserably failed to prove the execution of Ex.A1 sale
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agreement, passing of sale consideration and the enforceability of Ex.A1 sale
agreement. In such circumstances, the trial Court has rightly dismissed the suit
for specific performance.
27.When the plaintiff has admitted that she has not paid a sum of Rs.
45,00,000/- directly to the defendant and it has been established that the sale
agreement was executed only as a security for the loan advanced to the
defendant's mother, the trial Court has rightly rejected the alternative prayer for
refund of the advance amount also.
(F)Conclusion
28.In view of the above said deliberations, there are no merits in the first
appeal. The judgment and decree of the trial Court are hereby confirmed and the
first appeal stands dismissed. No costs. Consequently, connected miscellaneous
petitions are also closed.
[C.V.K., J.] [R.V., J.]
08.10.2025
NCC : Yes/No
Index : Yes/No
Internet: Yes/No
RJR
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To
The learned First Additional District Judge(PCR),
Tiruchirappalli.
Copy to:-
The Section Officer,
VR Section,
Madurai Bench of Madras High Court, Madurai.
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C.V.KARTHIKEYAN, J.
and
R.VIJAYAKUMAR, J.
RJR
Pre-delivery judgment made
in
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