Madras High Court
A.V.Subramaniam vs Kuppayammal on 18 September, 2025
A.S.NO.35 OF 2012
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON : 19 / 06 / 2025
JUDGMENT PRONOUNCED ON : 18 / 09 / 2025
CORAM:
THE HONOURABLE MR. JUSTICE R.SAKTHIVEL
APPEAL SUIT NO.35 OF 2012
AND
M.P.NOS.1 AND 2 OF 2012
1.A.V.Subramaniam
2.V.Mahesh ... Appellants / Plaintiffs
Vs.
1.Kuppayammal
2.R.Ganesh
3.R.Raghupathy
4.R.Gopal @ Gopalakrishnan
5.R.Prakash
6.R.Chellammal
7.B.Revathi ... Respondents / Defendants
PRAYER: First Appeal filed under Section 96 of the Code of Civil
Procedure, 1908 praying to set aside the Judgment and Decree dated
November 28, 2011 passed in O.S.No.271 of 2007 by the learned
Additional District and Sessions Judge, Fast Track Court III, Thiruvallur.
For Appellants : Mr.C.S.Kiran
Page No.1 of 33
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
For Respondents : Mr.M.S.Subramanian
JUDGMENT
Feeling aggrieved by the Judgment and Decree dated November 28,
2011 passed by the 'learned Additional District and Sessions Judge, Fast
Track Court III, Thiruvallur' ['Trial Court' for brevity] in O.S.No.271 of
2007, the plaintiffs therein have filed this Appeal Suit under Section 96 of
'the Code of Civil Procedure, 1908' ['CPC' for short].
2. For the sake of convenience, hereinafter, the parties will be
referred to as per their array in the Original Suit.
PLAINTIFFS' CASE
3. The case of the plaintiffs as put forth in the plaint is that the
plaintiffs entered into a Sale Agreement with one Ramasamy Mudaliar,
the husband of the first defendant and father of the other defendants on
July 10, 2005 in respect of Suit Property for a sale consideration of
Rs.11,70,000/-. On the same day, a sum of Rs.2,00,000/- was paid as
advance in the presence of second and third defendants. The second
defendant, who is the eldest son of Ramasamy Mudaliar had written the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
Sale Agreement. As per the Sale Agreement, the transaction should be
completed on or before September 10, 2005 and the balance sale
consideration had to be paid at the time of execution of Sale Deed.
3.1. Then, upon the insistence of the said Ramasamy Mudaliar, the
plaintiffs were forced to make further payments; the plaintiffs paid a sum
of Rs.3,00,000/- on August 7, 2005 at his residence in Chennai in the
presence of his family members including the defendants 1 to 4 herein
and a further sum of Rs.4,00,000/- on September 3, 2005 in the presence
of defendants 2 and 3 herein in Ramasamy Mudaliar’s shop. In return for
the payments made, possession of the Suit Property was handed over to
the plaintiffs and they are in absolute possession till date. The defendants
2 and 3 were assisting the plaintiffs on behalf of their father to improve
the Suit Property.
3.2. When the plaintiffs contacted Ramasamy Mudaliar on
September 9, 2005 for approval of draft Sale Deed and execution of Sale
Deed within the stipulate period, Ramasamy Mudaliar informed that he
will meet the plaintiffs at his shop premises at Nungambakkam in the
evening hours and execute the Sale Deed. Unfortunately, Ramasamy
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
Mudaliar passed away in a fatal road accident at Ambattur before the
meeting. Upon hearing the same, the first plaintiff proceeded to
Hyderabad since there was no chance of registration on that day.
3.3. After ten days of the demise of Ramasamy Mudaliar, the
plaintiffs approached the defendants 1 to 4 in person and insisted on
execution of Sale Deed as agreed upon, and they assured the plaintiffs to
execute the Sale Deed at the earliest. When contacted again during middle
of November 2005, they requested the plaintiffs to wait further to enable
them to get all the legal heirs of the deceased for execution of the Sale
Deed. Later, the plaintiffs came to know that the defendants have entered
into a Partition Deed dated December 7, 2005 among themselves, without
the knowledge of the plaintiffs by suppressing the Sale Agreement dated
July 10, 2005. In response, the plaintiffs also lodged a complaint on the
file of the Inspector of Police, CCB III Team, Chennai in Crime No.179 of
2007.
3.4. According to the plaintiffs, the defendants failed to fulfil their
obligation under the Sale Agreement and the defendants are trying to
interfere with the plaintiffs’ peaceful possession and smooth running of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
business activities in the Suit premises. Hence, after exchange of notices,
the plaintiffs filed the Suit for Specific Performance, for declaration that
the Partition Deed is null and void, and for permanent injunction
restraining the defendants from interfering with the plaintiffs’ peaceful
possession and enjoyment of the Suit Property and not to encumber the
Suit Property.
DFENDANTS' CASE
4. The first defendant filed written statement which was adopted by
the defendants 2 to 7, denying the allegations made by the plaintiffs in the
plaint. The defendants admit the Suit Sale Agreement and the receipt of
Rs.2,00,000/- on the same day as advance. But the other alleged payments
made by the plaintiffs viz., Rs.3,00,000/- on August 7, 2005 and
Rs.4,00,000/- on September 3, 2005 were denied. According to the
defendants, the endorsements made in the agreement for the above
payments are forged and fabricated by the plaintiffs. It was further denied
that possession of the Suit Property was handed over to the plaintiffs and
that the defendants assisted the plaintiffs in improving the Suit Property. It
is denied that the plaintiffs have started functioning of their company in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
the Suit Property.
4.1. According to the defendants, despite repeated demands from
Ramasamy Mudaliar, the plaintiffs have never come forward to perform
their part of the contract except the payment of Rs.2,00,000/- as advance
on July 10, 2005. After the demise of Ramasamy Mudaliar, during the
evening hours on September 10, 2005, the plaintiffs came to the
defendants house and felt sorry for the sudden and unfortunate demise of
Ramasamy Mudaliar and handed over the Original Sale Agreement dated
July 10, 2005 stating that they are no more interested in purchasing the
Suit Property. Plaintiffs suggested that the advance amount of
Rs.2,00,000/- paid could be returned and get the Sale Agreement
cancelled. The defendants agreed and immediately handed over
Rs.2,00,000/- to the plaintiffs. On receipt of the said amount, the plaintiffs
requested the defendants to return the original Sale Agreement as the
same required for their account purpose. Accordingly, the defendants
handed over the original Sale Agreement. Further, an endorsement was
taken from both the plaintiffs in a photo copy of the Sale Agreement dated
July 10, 2005 evidencing the receipt of Rs.2,00,000/- and cancellation of
the Sale Agreement. The said endorsement has also been attested by
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
witnesses who were present at that time. In fact, the first plaintiff has
written with his own hand about the receipt of original Sale Agreement
from the first defendants before he subscribed his signature in the
endorsement.
4.2. According to the defendants, the plaintiffs have unnecessarily
lodged a police complaint with false and untenable allegations. Followed
by the complaint, the plaintiffs employed heavy pressure and influence
upon the police and under the guise of investigation, obtained signatures
of defendants 1 to 4 as though they undertook to re-pay the plaintiffs a
sum of Rs.9,00,000/-.
4.3. Further, upon obtaining an order of ad-interim injunction, the
plaintiffs engaged unlawful group of 20 persons and hurriedly began to
put up metal mesh fencing around the Suit Property on August 2, 2007.
The second defendant visited the property by 10.00 a.m., on August 2,
2007 and witnessed the unlawful acts of the plaintiffs. Immediately, the
matter was reported to the Mappedu Police. The Sub-Inspector of Police,
Mappedu Police Station visited the Suit Property on August 2, 2007 at
04.00 p.m., and questioned the unlawful acts of the plaintiffs.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
Immediately, on August 3, 2007 an Interlocutory Application in
I.A.No.786 of 2007 was filed for appointment of Advocate-
Commissioner. The Court also appointed an Advocate-Commissioner on
August 10, 2007. On August 11, 2007 the Advocate-Commissioner visited
the Suit Property and noted down the fresh fence, small room constructed
etc. Further, the Suit Document Nos.7, 8, 10 to 13 were secured by the
plaintiffs for the purpose of the Suit. Suit Document No.9 was denied as
the signature found thereon was not that of Late S.Ramasamy Mudaliar.
The plaintiffs are not entitled to any relief as sought in the plaint.
Accordingly, the defendants prayed to dismiss the Suit.
TRIAL COURT
5. Based on the above pleadings, the Trial Court framed the
following issues:
“1. Whether the plaintiffs are entitled for specific performance of
contract of sale agreement dated July 10, 2025 entered between
plaintiffs and Ramasamy Mudaliar ?
2. To what relief the plaintiffs are entitled ?”
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
5.1. Subsequently, the issues were recast as follows:
“1. Whether the plaintiffs are entitled for specific performance of
contract of Sale Agreement dated July 10, 2005 entered
between plaintiffs and Ramasamy Mudaliar ?
2. Whether the plaintiffs are ready and willing to perform their
part of contract throughout from the date of agreement ?
3. Whether the payment dated August 7, 2005 and September 3,
2005 are true ?
4. Is time the essence of contract ?
5. Whether there is cancellation of agreement ?
6. Whether the plaintiffs are entitled to permanent injunction as
prayed for ?
7. Whether the plaintiffs are entitled to get relief of declaration
that the partition deed dated December 7, 2005 amongst the
defendants is invalid ?
8. To what relief?”
6. At trial, plaintiffs were examined as P.W.1 and P.W.2 and Ex-A.1
to Ex-A.43 were marked on the side of the plaintiffs. On the side of the
defendants, fourth defendant was examined as D.W.1 and one R.Indirajith
was examined as D.W.2 and Ex-B.1 to Ex-B.4 were marked. Advocate-
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
Commissioner's Report was marked as Ex-C.1.
7. After full-fledged trial, the Trial Court concluded that Ex-A.1 -
Suit Sale Agreement dated July 10, 2005 was cancelled and the plaintiffs
failed to prove the readiness and willingness to perform their part of
contract. The alleged payments of Rs.3,00,000/- and Rs.4,00,000/- on
August 7, 2005 and September 3, 2005 respectively were not proved.
Time is the essence of contract. Possession was not handed over to the
plaintiffs and they trespassed into the Suit Property after obtaining the ad-
interim injunction and constructed the fences and shed. Upon these
findings, the Trial Court dismissed the Suit.
8. Feeling aggrieved, the plaintiffs have preferred this First Appeal
under Section 96 read with Order XLI Rule 1 of the CPC.
ARGUMENTS
9. Mr.C.S.Kiran, learned Counsel for the appellants / plaintiffs
would argue that after execution of Ex-A.1 – Suit Sale Agreement, at the
insistence of the Ramasamy Mudaliar, the plaintiffs paid further payments
of Rs.3,00,000/- and Rs.4,00,000/- on August 7, 2005 and September 3,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
2005 respectively. The same were duly endorsed in a photocopy of Ex-
A.1 – Suit Sale Agreement and the endorsements have been marked as
Ex-A.2 and Ex-A.3 respectively. Ex-A.1 to Ex-A.3 were scribed / written
by second defendant – Ganesh, the eldest son of Ramasamy Mudaliar.
Further, the defendants have admitted the further payments to the tune of
Rs.7,00,000/- made by the plaintiff in Ex-A.35 – Letter from first
defendant to Police, and Ex-A.39 - Statement from second defendant
witnessed by 3rd and 4th defendants. Possession of the Suit Property was
handed over to the plaintiffs in return. Since then, the plaintiffs have been
paying land tax and house tax in respect of the Suit Property and they
have been running an Ice Factory thereon. Ex-A.19 - SSI Certificate has
also been obtained for the same.
9.1. Referring to Ex-A.20 to Ex-A.29 which consists of Bank
Statements, Letters from various financial corporation, Income Tax
Return, etc., he would contend that the balance sale consideration was
only Rs.2,70,000/-, the plaintiffs had the wherewithal to pay the same,
and the plaintiffs were always ready and willing to perform their part of
the contract. While it was planned to get Sale Deed executed in the
evening of September 9, 2005, unfortunately Ramasamy Mudaliar passed
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
on the same day before execution of Sale Deed in a road accident. The
plaintiffs did not attend the condolence nor did they meet the defendants
on September 10, 2005. Only ten days thereafter, the plaintiffs met the
defendants and requested them to execute Sale Deed. The defendants
agreed to execute Sale Deed at the earliest possible. However,
subsequently, with a view to defeat and defraud the rights of the
plaintiffs, the defendants entered into Ex-A.8 – Partition Deed dated
December 7, 2005.
9.2. As regards the alleged cancellation of the Sale Agreement
dated July 10, 2005, he would submit that the plaintiffs did not meet the
defendants on September 10, 2005. After execution of Sale Agreement, on
the same day viz., July 10, 2005, the original was given to the plaintiffs
and a photocopy was given to the Ramasamy Mudaliar, and the plaintiffs
endorsed on the photocopy of Sale Agreement as to the receipt of the
original and affixed their signatures. Below his signature, the first
plaintiff also mentioned the date of his signature viz., "10.7.2005". The
defendants overwrote the 7 in "10.7.2005" as 9 and wrote there above as
if the plaintiffs cancelled the Sale Agreement. In short, the alleged
endorsement as to the cancellation of the Sale Agreement is a forged one.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
The evidence of D.W.2 is not natural and not a reliable one. The Trial
Court failed to consider the above aspects and erroneously dismissed the
Suit. The Judgment and Decree of the Trial Court deserves to be
interfered with. Accordingly, he would pray to set aside the Judgment and
Decree of the Trial Court.
9.3. He would rely on the following decisions in support of his
contentions:
(i) Chand Rani’s Case - Judgment of Hon'ble Supreme Court in
Chand Rani -vs- Kamal Rani, reported in (1993) 1 SCC 519;
(ii) Babulal Agarwal's Case - Judgment of Hon'ble Supreme Court in
Babulal Agarwal -vs- Jyoti Shrivastava, reported in 2000 (1) MPLJ
102;
(iii) Kapil Corepacks Private Limited’s Case - Judgment of Hon'ble
Supreme Court in Kapil Corepacks Private Limited -vs- Harbans Lal
reported in (2010) 8 SCC 452;
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
(iv) Dipakbhai's Case - Judgment of Hon'ble Supreme Court in
Dipakbhai Jagdishchandra Patel -vs- State of Gujarat, reported in
(2019) 16 SCC 547;
(v) Sukhbir's Case - Judgment of Hon'ble Supreme Court in Sukhbir
-vs- Ajit Singh, reported in (2021) 6 SCC 54;
(vi) Daivasigamani's Case - Judgment of Hon'ble Supreme Court in
P.Daivasigamani -vs- S.Sambandan, reported in (2022) 14 SCC 793;
10. On the other hand, Mr.M.S.Subramanian, learned Counsel for
the respondent / defendants would argue that time is of the essence of Ex-
A.1 – Sale Agreement. Further, if really the plaintiffs made further
payments as alleged, the same would have been endorsed on the original
and not the photocopy, that too when even as per the plaintiffs, the
original of Ex-A.1 lies with them. No independent witness was examined
in support of the alleged payments. Ex-A.2 and Ex-A.3 – Endorsements as
to the alleged further payments are not proved as per law. Further, the
alleged admissions made before police in Ex-A.35 – Letter from first
defendant to Police and Ex-A.39 - Statement from second defendant, are
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
obtained by force and not valid in the eyes of law. Hence, the plaintiffs
have failed to prove the alleged further payments. Further, Ramasamy
Mudaliar never handed over possession to the plaintiffs and upon
obtaining ad-interim injunction, they trespassed into the Suit Property and
put up shed and fences. Further, the plaintiffs cannot protect his alleged
possession when the Sale Agreement is an unregistered one in view of the
amendment made in Section 53-A of the Transfer of Property Act, 1882.
The Trial Court rightly dismissed the Original Suit. There is no need to
interfere with the same. Accordingly, he would pray to dismiss the Appeal
Suit and confirm the Judgment and Decree of the Trial Court.
10.1. He would rely on the following decisions in support of his
contentions:
(i) Sukhwinder Singh’s Case - Judgment of Hon'ble Supreme Court
in Sukhwinder Singh -vs- Jagroop Singh reported in (2021) 20 SCC
245;
(ii) J.P.Builders' Case - Judgment of Hon'ble Supreme Court in
J.P.Builders -vs- A.Ramadas Rao reported in (2011) SCC 429;
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
(iii) P.Meenakshisundaram's Case - Judgment of Hon'ble Supreme
Court in P.Meenakshisundaram -vs- P.Vijayakumar, reported in
(2018) 15 SCC 80;
(iv) Sarojini’s Case - Judgment of this Court in S.Sarojini -vs-
P.Mariappan reported in 2018 (4) CTC 13;
(v) Saraladevi Surana’s Case - Judgment of this Court in S.Saraladevi
Surana -vs- G.S.Sundararaj reported in 2021 (3) MWN (Civil) 749;
(vi) Dutta Seethamahalakshmamma’s Case - Judgment of Andhra
Pradesh High Court in Dutta Seethamahalakshmamma -vs-
Yanamadala Balaramaiah reported in AIR 2003 AP 430;
(vii) Ayithi Appalanaidu’s Case - Judgment of Andhra Pradesh High
Court in Ayithi Appalanaidu -vs- Petla Papamma reported in AIR
2011 AP 172.
DISCUSSION:
11. Heard on either side. Perused the evidence available on record.
The following points arise for consideration in this Appeal Suit:
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
(i) Whether the plaintiffs made further payments of Rs.3,00,000/- and
Rs.4,00,000/- on August 7, 2005 and September 3, 2005
respectively ?
(ii) Whether Ex-A.1 – Sale Agreement was cancelled on September 10,
2005 as alleged by the defendants ?
(iii) Whether the plaintiffs were ready and willing to perform their part
of the contract ?
(iv) Whether the plaintiffs are entitled to get Sale Deed executed in their
favour ?
(v) Whether the plaintiffs are entitled to injunctions as prayed for ?
(vi) Whether Ex-A.8 – Partition Deed dated December 7, 2005 entered
among the defendants is valid ?
(vii) Whether the Judgment and Decree of the Trial Court warrant any
interference of this Court ?
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
Point No.(i)
12. The defendants admitted the execution of Ex-A.1 – Sale
Agreement, the sale consideration fixed thereunder as well as the receipt
of Rs.2,00,000/- as advance on the very same day of execution. But the
defendants deny the receipt of Rs.3,00,000/- and Rs.4,00,000/- on August
7, 2005 and September 3, 2005 respectively and Ex-A.2 and Ex-A.3 –
Endorsements therefor.
13. In Ex-A.6 – Reply Notice itself, the plaintiffs have clearly
stated that Ex-A.1 – Suit Sale Agreement, Ex-A.2 and Ex-A.3 –
Endorsements were all scribed by the second defendant – Ganesan.
Ramasamy Mudaliar have signed in Ex-A.1 to Ex-A.3. The same has been
pleaded in the plaint as well. After exchange of notices, the plaintiffs
preferred a police complaint before Central Crime Branch Team V,
Egmore, Chennai against the defendants and in the due course of enquiry,
the second defendant submitted a signed statement (Ex-A.39) wherein 3rd
and 4th defendants have signed as witnesses. In Ex-A.39, it has been
stated that as the Sale Agreement in respect of the Suit Property has
expired, the defendants are ready to return the advance amount of
Rs.9,00,000/- but cannot execute Sale Deed in favour of the plaintiffs in
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
respect of the Suit Property. To be noted, Ex-A.39 was made at the stage
of preliminary enquiry itself when no criminal case was registered against
the defendants. Ex-A.39 was not obtained when the second defendant was
under police custody. The second defendant did not enter into the witness
box to support the contention that Ex-A.39 – Statement was obtained by
force or fraud. No complaint to any higher police official or anybody was
sent by the defendants that Ex-A.39 was obtained by force. Merely
because endorsements were made on a photocopy of Ex-A.1 – Sale
Agreement, it cannot be said that they are forged or false in nature. From
Ex-A.20 to Ex-A.29 which inter alia contains the plaintiffs’ Income Tax
Returns, Bank Account Statements, Letter from Life Insurance
Corporation of India, the ability of the plaintiffs to mobilise money to the
tune of Rs.7,00,000/- can be inferred. In these circumstances, Ex-A.39
can be proved against the defendants, Section 25 and Section 26 of Indian
Evidence Act, 1872 do not stand as an impediment for the same, and this
Court is of the view that the plaintiffs have prima facie proved Ex-A.2
and 3. This Court would like to note here that in Ex-A.35 – Letter from
first defendant to Police witnessed to defendants 2 to 4 as well, the
defendants seems to have admitted the receipt of Rs.9,00,000/- as
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
advance. However, Ex-A.35 was written after filing of Ex-A.42 – First
Information Report (FIR). At the time of Ex-A.35, the defendants were
arrayed as accused and hence, Sections 25 and 26 of Indian Evidence Act,
1872 will come into play. Hence, Ex-A.39 is alone considered by this
Court and not Ex-A.35.
14. Now the onus is upon the defendants who failed to discharge
the same. The second defendant was not examined as stated supra, that
too when the plaintiffs have taken a specific stand that it was the second
defendant who scribed Ex-A.1 to Ex-A.3. Further, the only defendant who
entered the witness box is D.W.1 / fourth defendant but he has not
deposed anything about the usage of force to get Ex-A.39 executed. The
defendants did not take any step to send Ex-A.2 and Ex-A.3 –
Endorsements for expert opinion on the signatures found therein. When
perused through naked eye, this Court could not find any fundamental
variation between the signatures of Ramasamy Mudaliar found in Ex-A.1
and in Exs-A.2 and A.3. There is no evidence available on record to show
that there was force behind the execution of Ex-A.39.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
15. Hence, this Court is of the view that Ex-A.2 and Ex-A.3 –
Endorsements are true and that the plaintiffs paid Rs.3,00,000/- and
Rs.4,00,000/- on August 7, 2005 and September 3, 2005 respectively as
evidenced by Exs-A.2 and A.3. The Trial Court found that no explanation
was assigned for Ex-A.2 and Ex-A.3 – Endorsements being in a photo
copy of Ex-A.1 – Sale Agreement and not the original. In the facts and
circumstances of this case, this Court is of the view that the finding of the
Trial Court is not justifiable as there is no bar to make an endorsement on
a photocopy. Point No.(i) is answered accordingly in favour of
plaintiffs and against the defendants.
Point No.(ii)
16. According to the defendants, on September 10, 2005 i.e., on the
next day of demise of Ramasamy Mudaliar, the plaintiffs visited the
defendants for condolence, and sought for cancellation of Sale
Agreement. The defendants agreed, returned the advance amount of
Rs.2,00,000/- received by Ramasamy Mudaliar on the date of execution
of Ex-A.1, obtained endorsement to that effect in the photocopy of Ex-
A.1. The signatures of the plaintiffs found in the aforesaid endorsement 1
and 2 have been marked as Ex-B.2 and Ex-B.3 respectively. Further, the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
first plaintiff himself in his own hand has written that the original of Ex-
A.1 – Sale Agreement is received by them and the same has been marked
as Ex-B.4.
17. That being the case of the defendants, the plaintiffs’ case is that
Ex-B.4 – Endorsement and Exs-B.2 and B.3 – Signatures were made at
the time of execution of Ex-A.1 i.e., on July 10, 2005 and that the
defendants have forged the date by overwriting 7 in 10.7.2025 as 9 and
also added false endorsement about cancellation of Ex-A.1 above Ex-B.2
and Ex-B.3.
18. Both sides did not send the date in Ex-B.2 – Signature of first
plaintiff for expert opinion. If really the Ex-A.1 was cancelled, naturally
the first plaintiff would have endorsed that the Sale Agreement was
cancelled. There was no reason for him to mention that the original was
received. Further, admittedly, Ramasamy Mudaliar passed away in a road
accident on September 9, 2005 at 6.30 p.m. (See Ex-A.34 - FIR). It being
a death due to road traffic accident (medico-legal case), post-mortem
would have been carried out. Generally post-mortem will not be carried
out after dusk and hence, it would have been carried out on the next day
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
only i.e., September 10, 2005, which means the body of the deceased was
received only on September 10, 2005. In such a scenario, it is highly
unnatural that the plaintiffs sought for cancellation of Sale Agreement in
the condolence house and that the defendants agreed to the same and
instantly returned the advance amount of Rs.2,00,000/-. Furthermore, as
held under Point No.(i), the advance amount is Rs.9,00,000/- and not
Rs.2,00,000/-. Moreover, a careful perusal of the date in Ex-B.2 would
show that the number “9” alone looks odd and out of proportion, as if it
has been written over number “7”. These makes the case of the plaintiffs
that Ex-B.2 to Ex-B.4 were made at the time of Ex-A.1 i.e., on July 10,
2005 probable. Indeed the defendants’ side have examined D.W.2 namely
Indrajeet and he has deposed in favour of the defendants in this regard.
However, in view of the above narrative, this Court is of the view that his
evidence is not trustworthy. Hence, the cancellation of Ex-A.1 on
September 10, 2005 is not proved by the defendants. Point No.(ii) is
answered accordingly in favour of plaintiffs and against the
defendants.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
Point No.(iii)
19. Admittedly, the first plaintiff retired as a Senior Bank Manager
in Canara Bank and the second plaintiff is running a factory. Ex-A.20 to
Ex-A.29 would establish that the plaintiffs had sufficient capacity and
wherewithal to purchase the Suit Property. As held under Point No.(i), the
plaintiffs have paid Rs.7,00,000/- in addition to the initial advance
amount of Rs.2,00,000/-. Thus, total advance amount is Rs.9,00,000/- and
the remaining sale consideration is only Rs.2,70,000/-. The plaintiffs in
their evidence have stated that they were ready and willing with a Draft
Sale Deed in hand on September 3, 2005 itself but Ramasamy Mudaliar
sought for some time citing personal inconvenience. Further stated that on
September 9, 2005, when the plaintiffs insisted on execution of Sale
Deed, Ramasamy Mudaliar agreed and had planned to execute Sale Deed
in the evening. However, unfortunately, he passed away before execution
of Sale Deed. Further, the plaintiffs have deposited the balance sale
consideration into the Court. Considering the cumulative facts and
circumstances of the case, this Court is of the view that the plaintiffs were
ready and willing to perform their part of the contract. Point No.(iii) is
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
answered accordingly in favour of plaintiffs and against the
defendants.
Point No.(iv)
20. This Court deems fit to extract hereunder a portion of the Sale
Agreement :
@nkw;go fpuaj; bjhifapy; ,d;iwa
njjpapy; fpiua Kd;gzkhf 2?tJ egUk;
3?tJ egUk; nru;e;J 1 tJ egUf;F
U:/200000-? (U:gha; ,uz;L yl;rk; kl;Lk;)
bfhLj;J kPjp fpuaj; bjhif U:/970000-?
(U:gha; xd;gJ yl;rj;J vGgJ Mapuk; kl;Lk;)
,d;iwa njjpapy; ,Ue;J 2 (,uz;L) khj
fhyj; jtizf;Fs; mjhtJ 10/09/2005 f;Fs;
2?tJ egu;. 3?tJ egu; nru;e;J 1?tJ egUf;F
brYj;jp fpua gj;jpuk; vGjp gjpt[ bra;J
bfhs;s ntz;oaJ nkw;go xg;ge;jgo fpuak;
bgw;Wk; 2?tJ egu;. 3?tJ egu; Fwpg;gpl;l
fhyj;jpw;Fs; gjpt[ bra;J bfhs;shky;
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
nghdhy; nkw;go Kd;gzkhf bfhLj;j
U:/200000-? (U:gha; ,uz;L yl;rk;) ,He;J
tpLfpwhu;fs;/ 1?tJ egu; fpuak; jUgtu;
gzk; bgw;W bfhz;L fpua gj;jpuk; gjpt[
bra;J bfhLf;fhky; nghdhy; U:/200000-?
(U:gha; ,uz;L yl;rk;) Kk; kw;Wk; <L
bjhifahf 10# (gj;J rftpjk;) nju;j;J
bkhj;jk; U:/220000-? (U:gha; ,uz;L yl;rj;J
,UgJ Mapuk; kl;Lk;) khf bfhLf;f
ntz;Lk;/ ,jd; cld; gof;iff;F K:d;W
egu;fSk; KG kdJld; xg;ge;j gj;jpuk; K:yk;
rhl;rpfs; Kd;dpiyapy; fl;Lg;gLfpnwhk;
vd;gij KG kdJld; xg;g[ bfhs;fpnwhk;@/
21. From the above, it is clear that as per the terms of Ex-A.1 – Sale
Agreement, if the plaintiffs fail to perform their part of the contract, it will
lead to forfeiture of the advance amount of Rs.2,00,000/-. On the other
hand, if the defendants fail to fulfil their obligation under Ex-A.1, they
have to return the advance amount of Rs.2,00,000/- along with 10%
thereon as compensation i.e., totally Rs.2,20,000/-. The consequences of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
failure on either side has been clearly spelt out in the contract itself. There
is no consequence or remedy spelt out such that the aggrieved party may
enforce the Sale Agreement and get the Sale Deed executed through Court
of Law. There is no such a thing in the subsequent endorsements as well
viz., Ex-A.2 and Ex-A.3. In a Suit for specific performance, what had
been agreed by the parties alone can be enforced. As held under Point
No.(i), a further advance of Rs.7,00,000/- was made. Bearing in mind the
same and interpreting Ex-A.1, the remedy available to the plaintiffs in
case of failure on the part of the defendants to perform their part of the
contract, is return of the advance amount of Rs.9,00,000/- along with 10%
thereon as compensation. To put it differently, through Court of Law, the
plaintiffs can only seek Rs.9,90,000/-, and not execution of Sale Deed.
Point No.(iv) is answered accordingly.
Point No.(v)
22. As regards permanent injunction restraining the defendants
from interfering with the plaintiffs’ peaceful possession and enjoyment of
the Suit Property, Ex-A.1 – Sale Agreement is an unregistered one. There
is no recital in Ex-A.1 to Ex-A.3 that possession was handed over to the
plaintiffs. The plaintiffs claim to be in possession and enjoyment of the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
Suit Property on the basis of Ex-A.10 to Ex-A.15 and Ex-A.19. Ex-A.10
to Ex-A.12 – Receipts for Kist paid by plaintiffs in the name of
Ramasamy Mudaliar. Mere payment of Kist does not mean that the
plaintiffs are in possession and enjoyment of the Suit Property. Kist can
be paid by anyone. Ex-A.13 is the second plaintiff’s Cheque Book
showing his address as the Suit Property, issued by ICICI Bank on
February 15, 2006 i.e., just before the exchange of notices. Ex-A.14 and
Ex-A.15 are House Tax Receipt and Miscellaneous Receipt respectively
issued in favour of the plaintiffs in respect of the Suit Property just before
the filing of Suit (Suit has been filed on July 27, 2007). Ex-A.19 – SSI
Certificate has been obtained stating as if the Suit Property belongs to the
plaintiffs. Thus, it has been obtained by misleading the authority by
suppression of fact and it also cannot be taken to show the possession of
the plaintiffs pursuant to the Sale Agreement. There is no satisfactory
evidence to show that possession was handed over to the plaintiffs by
Ramasamy Mudaliar.
23. Be that as it may, in view of the Registration and other related
laws (Amendment) Act, 2001 [Act No.48 of 2001] with effect from
September 24, 2001, which amended Section 17 of the Registration Act,
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
1908 and Section 53-A of the Transfer of Property Act, 1882, when
protection of possession is sought under said Section 53-A as a part
performance of contract, the Sale Agreement must be a registered one.
Ex-A.1 being an unregistered one, even while assuming that the plaintiffs
are in possession and enjoyment of the Suit Property, they cannot seek
injunction under Section 53-A of the Transfer of Property Act, 1882.
24. As regards the permanent injunction against the defendants not
to alienate the Suit Property, mere Sale Agreement does not provide any
title over the Suit Property. Hence, the plaintiffs cannot seek permanent
injunction not to alienate against the defendants. Point No.(v) is
answered accordingly in favour of defendants and against the
plaintiffs.
Point No.(vi)
25. As regards the relief of declaration that Ex-A.8 – Partition Deed
dated December 7, 2005 is null and void, as already stated supra, the
plaintiffs are entitled only to the return of Rs.9,90,000/- as per the terms
of Ex-A.1 – Sale Agreement. In such a scenario, post Ramasamy
Mudaliar’s demise, his legal heirs are entitled to his property as per law.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
Hence, the partition is valid and the plaintiffs have no locus to question
the Ex.A.8 - Partition Deed and thus, not entitled to the relief of
declaration that the Partition Deed is null and void. Point No.(vi) is
answered accordingly in favour of defendants and against the
plaintiffs.
Point No.(vii)
26. The Trial Court is not right in its finding that Ex-A.2 and Ex-
A.3 – Endorsements are not proved by the plaintiffs. The plaintiffs were
ready and willing to perform their part of the contract. As stated supra, the
plaintiffs are entitled to receive Rs.9,00,000/-, along with 10% thereon as
compensation.
27. Taking judicial notice of the fact that the market value of the
Suit Property, which is situate in a Thiruvallur – Sriperumpudur Main
Road, has sky rocketed and touched Crores, and also considering the fact
that even the guideline value is Rs.1,50,00,000/- per acre as on July, 2024
and that the nature of transaction under Ex-A.1 is commercial transaction,
in the interest of justice, this Court is inclined to award interest at the rate
of 18 % (simple interest) from the date of Suit till realisation. In short, the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
plaintiffs are entitled to Rs.9,90,000/- along with 18 % simple interest
thereon from the date of Suit till realisation. Thus, the Judgment and
Decree of the Trial Court are liable to be set aside by this Court. Point
No.(v) is answered accordingly.
28. No quarrel with the case laws relied on by either side.
CONCLUSION:
29. Resultantly, the Appeal Suit stands partly-allowed, the
Judgment and Decree of Trial Court is hereby set aside, and suit is partly
decreed in the following terms:
(a) The defendants shall pay Rs.9,90,000/- (Rupees Nine Lakh
and Ninety Thousand only) along with 18 % simple interest
thereon to the plaintiffs from the date of Suit till the date of
realisation, within 3 months from today. Charge is created on
the Suit Property to enable the plaintiffs to realise the said
amount and interest;
(b) As it is said that the plaintiffs are in possession and
enjoyment of the Suit Property after filing of the Suit, the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
plaintiffs shall handover vacant possession of the Suit
Property to the defendants within three months from today;
(c) The plaintiffs are entitled to withdraw any amount deposited
before the Trial Court towards remaining sale consideration
with accrued interest, if any, thereon;
(d) The plaintiffs are not entitled to the relief of injunctions and
declaration as prayed for.
29.2. Keeping in mind the facts and circumstances of the case, the
plaintiffs are entitled to costs throughout from the defendants.
29.3. Connected Miscellaneous Petitions shall be closed.
/ 09 / 2025
Index : Yes / No
Speaking Order : Yes / No
Neutral Citation : Yes / No
TK
To
The Additional District and Sessions Judge
Fast Track Court III
Thiruvallur.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
A.S.NO.35 OF 2012
R. SAKTHIVEL, J.
TK
PRE-DELIVERY JUDGMENT MADE IN
APPEAL SUIT NO.35 OF 2012
18 / 09 / 2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 18/09/2025 08:25:43 pm )
