High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 05.07.2007CORAM :THE HON’BLE MRS. JUSTICE PRABHA SRIDEVANA.S.No.1387 of 1990 Mahaboob Sheriff .... AppellantVs.1. S.Mani @ Mahadevan2. S.Gopal3. Tholasi Ram4. Shanmuga Sundaram5. Official Liquidator High Court, Madras6. N.Saradha (Minor) Rep. by mother and next friend N.Saroja ..... Respondents(RR6 impleaded as per order of Court, dated 08.04.1999 in C.M.P.No.12422 of 1995 by SMAWJ)Appeal filed against the Judgment and Decree, dated29.06.1990 made in O.S.No.598 of 1983, on the file of theAdditional Subordinate Judge, Salem.For Appellant: Ms.P.T.Asha for M/s.KrishnanFor Respondents: Mr.D.Ravichander for Mr.T.R.Rajaraman for R1 and R4 J U D G M E N T The plaintiff is the appellant. The first respondent is theowner of the property. Two suits were filed for specificperformance and tried jointly. Since the third respondent hereinalso obtained a sale agreement from the first respondent herein,he sued for specific performance as well. https://hcservices.ecourts.gov.in/hcservices/

2. The trial court held that the agreement in favour of thethird respondent, which is marked as Ex.B.5 was true and that theagreement between the appellant and the first respondent, Ex.A.19cannot be believed and that it was brought about only to defeatthe rights of the third respondent herein. After having concludedthat Ex.B.5 is a valid agreement, the suit filed by the thirdrespondent was also dismissed for other reasons. The thirdrespondent has not chosen to file any appeal. Therefore, his suitfor specific performance of Ex.B.9 stands dismissed and the saiddecree has become final. So, Ex.B.5 no longer stands as a hurdlein the way of the appellant, for obtaining a decree for specificperformance and we have to see whether the appellant has made outa case for getting the relief that he prayed for.3. The averments in the plaint in brief are as follows :One Sundaram Asari, the father of the respondents 1 and2 was the owner of the property. The appellant entered into theproperty as lessee, both for residential and non-residentialpurpose. Sundaram Asari died on 21.02.1977, leaving behind 10children, the respondents 1 and 2, being the two of the six sons.Sundaram Asari left a will and in accordance with that thebrothers divided the property. The division took place in June1977, whereby the respondents 1 and 2 jointly took the property.Thereafter, the first respondent wanted to dispose of his shareand the appellant was ready to purchase, but the eldest son offamily, one Ramanathan, who had left the family, even during hisfather's life time, staked a claim in the suit property and filedO.S.No.337 of 1977. Therefore, the plans to sell the property gotsuspended. Thereafter, one of the other brothers Sankaran enteredinto contract for sale of his property for a sum of Rs.34,000/-.The first respondent also offered to sell his share of theproperty. As per the agreement, the first respondent agreed tosell the property for a sum of Rs.34,000/-. The advance amountsborrowed by the first respondent were to be treated as loan andthe date for execution of the sale deed was within a month, afterthe disposal of O.S.No.337 of 1977 referred to above. Theagreement was oral. In addition, a further loan was taken by thefirst respondent for a sum of Rs.500/-, which was alsoappropriated towards the sale price, on his request. Coming toknow of this agreement, the second respondent also agreed to sellhis share of the property and on the same terms, the appellantagreed to purchase the same. The second respondent was in urgentneed of funds and threatened to sell the property to some thirdperson. The appellant, who used to lend money to the secondrespondent agreed to advance funds, on condition that theseamounts would be appropriated towards the sale price, accordingly,a sum of Rs.21,400/- was given to the second respondent.Thereafter, the price of the property rose in Salem Town andtherefore, the respondents 1 and 2 decided to back off on thecontract and executed an agreement in favour of the third https://hcservices.ecourts.gov.in/hcservices/ respondent. The third respondent, who knew about the understandingbetween the parties, entered into agreement. The second respondenthad also executed two sale deeds in favour of the fourthrespondent, who is the close relative. These sale deeds are shamand nominal, created with a view to deat and defraud theappellant's claim. The appellant has always been ready to performhis part of contract, but for the suit by Ramanathan, the saledeeds ought to have been executed long ago. That suit wasdismissed on 31.01.1981. The appellant was not aware, whether theywere any appeals there from. So, this suit was filed in 1983 forspecific performance.4. The first respondent filed his written statement. Hedenied knowledge of the contract of sale between the appellant andSankaran; denied the offer to sell the property and further at therate mentioned in the plaint, denied the agreement to treat theloan amounts as advances towards the sale consideration, deniedthe second respondents intention to sell the property to theappellant and resisted the suit also on the ground ofmaintainability and prayed that the suit be dismissed. 5. The other respondents filed their written statements, butthey are not necessary to be dealt with, since according to theappellant, all other persons having any right, title or interestin the property have conveyed the same to the appellant and exceptfor the small share, which the first respondent is entitled to,the appellants title is complete. Therefore, the appellant hascome to a mutual and amicable settlement, not only with the secondrespondent, but also with the transferee from the secondrespondent. As has been observed earlier, the third respondent'ssuit was dismissed and has become final and therefore, thefindings of the trial court with regard to the second respondent'sintention to sell in favour of the fourth respondent and theagreement in favour of the third respondent are not reallyrelevant. All we have to see in this appeal is whether theappellant has proved whether there was any agreement in the saleand whether he has proved his entitlement to the decree forspecific performance.6. The learned counsel for the appellant would submit thatthe trial court erred in disbelieving Ex.A.19, which is theagreement between the parties, on two grounds, one because thecourt was of the opinion that the third respondent had a betterright to the property and now this has become irrelevant. The nextreason why the trial court disbelieved Ex.A.19, was because thetrial court was of the opinion that it was brought about afterfiling of the suit. The learned counsel submitted that it has beenproved by the oral evidence that the amounts lent to the firstrespondent was to be treated as advance and there is nothingelicited in the cross examination to the contrary. The learned https://hcservices.ecourts.gov.in/hcservices/ counsel also submitted that though in the pleadings, the firstrespondent has denied Ex.A.19, when the document was put to him,the first respondent as D.W.2 has not denied Ex.A.19 andtherefore, the court ought not to have come to the conclusion thatit was a fabricated document. The learned counsel also submittedthat it is in evidence that there was a protracted delay in havingthe sale deed executed only because of the dispute raised by theeldest brother of the family and this is also been admitted. Thelearned counsel submitted that if Ex.A.19 does not find place inthe plaint, it is only because Ex.A.19 was executed on 18.11.1983and the suit was filed on 21.11.1983, within three days andtherefore, on that ground, the court ought not to have rejectedEx.A.19.7. The learned counsel for the first respondent would submitthat even on just the pleadings, the suit deserve to be dismissed.The appellant cannot rely on Ex.A.19 for any purpose. Ex.A.19 doesnot find place in the pleadings, and even in the cause of action,the date of Ex.A.19 is not referred to. The appellant came tocourt on the basis of the oral agreement, which was not proved andtherefore, his suit must fail. The learned counsel also submittedthat all the amounts, which were given by the appellant to therespondent were only hand loans and they could not have beentreated as advances. 8. The appellant examined himself as P.W.1 and no otherwitness and marked 19 documents. The third respondent, who filedthe other suit was examined as D.W.1, the first respondent wasexamined as D.W.2, the grand father of the erstwhile minors, whoseshare was also conveyed, was examined as D.W.3 and D.W.4 is thefourth respondent in this suit, who is the alienee from the secondrespondent. 9. According to the appellant, there was an oral saleagreement in 1977, under which the respondent had agreed to sellthe property to him for a sale consideration of Rs.34,000/-, butthe execution of the sale deed was deferred in view of thelitigation in the form of the suit filed by Ramanathan. In hisevidence, he has stated that " ehd; me;j tpiyf;nf nfl;nld; jUfpwjhfbrhd;dhh;fs; gpujh;!; rp!;lh; nf!; nghl;L ,Uf;fpwjhf brhd;dhh; U:/34000/- j;jpw;FjUfpwjhf o1 brhd;dhh;/ ngr;R ele;J bfhz;nl ,Ue;jJ/ mth; xd;Wnk brhy;yiy/brhy;wjhf brhy;yp nghdhh;". Thereafter, he has stated that he did notknow when the case was over and that he issued notice, Ex.P.2. Incross-examination, it has been elicited that this oral agreementwas sometime in February or March 1977. 10. In the evidence of D.W.2, the first respondent, hasstated in his chief examination that there was no agreementbetween him and the appellant, he denied that he has agreed to https://hcservices.ecourts.gov.in/hcservices/ sell the property for Rs.37,000/-. In his cross-examination, hehas again denied that he made any attempt to sell the property.However, when Ex.A.19 is put to him, he has not denied hissignature, nor the circumstances, under which Ex.A.19 came intoexistence. Ex.A.19 is an unstamped document, which reads asfollows :" ek;kpy; 1yf;fkpl;lth; jfg;gdhhpd; capy; rhrd K:ykha[k;.rnfhjuh;fs; ghf TW rPl;L K:ykha[k;. ghfg; gphptpid K:ykha[k;.ghj;jpag;gl;L mth; rh;t Rje;jpukhf mDgtpj;J tUfpwJkhdnfhl;il 32 giHa khh;bfl; bjUtpy; cs;s ,jdoapy;fz;Ls;s brhj;jpy; 2yf;fkpl;lth; 1969 Kjy; thliff;F ,Ue;JtUfpwhh;/ 1977y; 1yf;fkpl;ltUf;Fk; mtUila rnfhjuh;fSf;Fk;Vw;gl;l ghfgphptpidapy; ,e;j brhj;J 1yf;fkpl;ltUf;F te;jgpd;1yf;fkpl;lth; 2yf;fkpl;ltUf;F fpuak; bra;a xg;ge;jk; bra;angrpdhh;? Mjrkak; 1yf;fkpl;lth; bghpa mz;Zh; uhkehjd;jfuhW bra;J bfhz;L jhth bra;jjhy; fpuak; bra;tij i&jhthtpw;F gpd;dh; itj;Jf; bfhs;s ehk; xg;g[f; bfhz;nlhk;/ ,ilapy; mtru njit fhuzkhf Jsrpuhkplk; U:/10.000/-bgw;Wf;bfhz;L xU fpua xg;ge;jgj;jpuk; vGjpf; bfhLj;J ,Ue;njd;/ fld; epthuz rl;lk; fhuzkhf g[nuhnehl; Fjitnghpy; mth; fld; bfhLf;f tpUg;gg;gltpy;iy/ i& uhkehjd;nghl;l tHf;F Koe;Jtpl;lJ/ ,d;W 1yf;fkpl;lth; ,jdoapy;fz;Ls;s brhj;ij 2yf;fkpl;ltUf;F fpuak; ngrp. 1481 rJu moepyKk; mjpYs;s fl;ol tiffs; vy;yhk; nrh;j;jp rJu moU:/55/- tPjk; hp$p!;jh; bra;J bfhLj;JtpLtjhf xj;Jf;bfhs;fpwhh;/"Thereafter, the recitals regarding payment are hit down. 11. It is true that there is no reference to Ex.A.19 in theplaint. The suit was based on the oral agreement between theparties in 1977. Even, assuming that Ex.A.19 cannot be the basisfor a decree for specific performance, it definitely is a recordof a past agreement and indicates that both the parties had agreedto the terms, under which, in 1977, the property was agreed to besold. So, the recitals in Ex.A.19 can be taken note of for thepurpose of accepting the appellant's case, that there was anagreement in 1977, by which the first respondent had agreed tosell the property and that the execution of the sale deed wouldhave to wait till the case filed by Ramanathan reaches a finality.Therefore, the appellant has proved there was an oral agreementbetween the parties for sale of the property.12. Next, we come to the question of limitation. From therecitals in Ex.A.19 and also the oral evidence of P.W.1, as well https://hcservices.ecourts.gov.in/hcservices/ as the pleadings, it is seen that the time for performance was onemonth after the suit filed by Ramanatham got disposed. It is notin dispute that this suit was disposed of in 1981 and within onemonth, thereafter, the sale deed had to be executed. The plaintiffhad three years' time from the date of the disposal of the earliersuit to file the suit, the present suit was filed in 1983, wellwithin time. Therefore, the suit is not hit by limitation.13. In the decision, Brij Mohan and others vs. Sugra Begumand others, reported in 1990 (4) SCC 147, it has been held asfollows :" 20. We have given our careful considerationto the arguments advanced by learned counselfor the parties and have thoroughly perusedthe record. We agree with the contention ofthe learned counsel for the appellants to theextent that there is no requirement of lawthat an agreement or contract of sale ofimmovable property should only be in writing.However, in a case where the plaintiffs comeforward to seek a decree for specificperformance of contract of sale of immovableproperty on the basis of an oral agreementalone, heavy burden lies on the plaintiffs toprove that there was consensus ad idem betweenthe parties for a concluded oral agreement forsale of immovable property. Whether there wassuch a concluded oral contract or not would bea question of fact to be determined in thefacts and circumstances of each individualcase. It has to be established by theplaintiffs that vital and fundamental termsfor sale of immovable property were concludedbetween the parties orally and a writtenagreement if any to be executed subsequentlywould only be a formal agreement incorporatingsuch terms which had already been settled andconcluded in the oral agreement."The plaintiff has proved the existence of oral agreement, by hisoral evidence and Ex.A.19.14. The question is whether the plaintiff has proved hisreadiness and willingness. In his chief examination, he has statedthat he is all along being ready to pay the amount and obtain thesale deed. " kzp nfhghyplk; ngrpdgo fpua bjhif brYj;jp fpuak; bgw ehd;jahuhf ,Uf;fpnwd;/ jhthg;go ofphp MfQqk;/ " There is no cross-examinationin this regard. https://hcservices.ecourts.gov.in/hcservices/

15. The plaintiff has proved the existence of the agreement.The suit has been filed in time and the plaintiff has also provedhis readiness and willingness. One must still see whether theplaintiff is entitled to the discretionary relief on the specificperformance. It is seen from what has happened subsequent to thesuit that the appellant has purchased peace from all otherpersons, who had a share in the property and the only the portion,which is still pending decision is this property. Therefore,having proved his readiness and willingness to perform his portionof the agreement and in view of the above circumstances, I am ofthe opinion that the appellant has established that he is entitledto the discretionary relief of the specific performance. 16. The Judgment and decree of the trial court is set asideand the suit is decreed as prayed for and the appeal is allowed.No costs.17. Both the learned counsel informed me that they were toldby he Official Liquidator that the property had been sold andthe proceeds therefrom has been distributed to the creditors toSundaram Asari. Though the Official Liquidator name is printed, heis not before this Court. Therefore, if the property had alreadybeen sold by the Official Liquidator to third parties, who are notbefore me, the success of the appellant will not in any way affecttheir rights.Sd/Asst.Registrar/true copy/Sub Asst.RegistrartsvnToThe Additional Subordinate Judge Salem.One cc to Sarvabhauman Associates SR.No.40398A.S.No.1387 of 1990sky/18/2