Vaithiyanathan v. Kalavathi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE : 14.03.2007CORAM:THE HONOURABLE MR.JUSTICE A.C.ARUMUGAPERUMAL ADITYANS.A.No.737 of 1997Vaithiyanathan.. Appellant/DefendantVs.Kalavathi.. Respondent/PlaintiffPrayer: This second appeal has been preferred against the decree andJudgment dated 26.3.1996 passed by the Additional Subordinate Judge,Mayiladuthurai, in A.S.No.2 of 1995, which was filed against the decreeand judgment dated 27.7.1994 in O.S.No.363 of 1994 on the file of theDistrict Munsif, Mayiladuthurai. For Appellant : Mr.R.Gopalakrishnan For Respondent : A.MuthukumarJUDGMENTThis appeal has been preferred against the decree and judgment inA.S.No.2 of 1995 on the file of the Court of Additional Subordinate Judge,Mayiladuthurai. The plaintiff in O.S.No.363/1984 on the file of theDistrict Munsif, Mayiladuthurai, had filed the suit for specificperformance of a contract on the basis of an agreement dated 13.5.1980entered into between the plaintiff and the defendant, who is none otherthan the brother of the plaintiff. The trial Court has granted only thealternative relief of payment of Rs.1,300/-. Aggrieved by the findings ofthe learned trial Judge, the plaintiff has preferred an appeal inA.S.No.2/1995 on the ground that the trial Court instead of granting adecree for specific performance, has granted the alternative relief ofmoney decree ie. return of Rs.1,300/-. The first appellate Court hasallowed the appeal thereby granting a decree for specific performance asprayed for in the plaint. Hence, the second appeal by the defendant. 2. The averments in the plaint relevant for the purpose of decidingthis appeal in brief are as follows:-2(a) The plaintiff is the sister of the defendant. Since thedefendant needed money for his agricultural operations, the plaintiffraised a loan from State Bank of India, Mayiladuthurai branch in the year https://hcservices.ecourts.gov.in/hcservices/ 1976 and paid Rs.700/- to the defendant. The defendant undertook to clearoff the loan due to the State Bank of India, Mayiladuthurai Branch, but asagreed he failed to discharge the loan to the bank. Due to the pressurefrom the bank, the plaintiff cleared off the loan amount. On 13.5.1980the defendant executed an agreement infavour of the plaintiff to dischargethe loan amount paid by the plaintiff amounting to Rs.1000/- within aperiod of two years and if he fails to repay the said loan within twoyears he undertook to convey the plaint schedule property by executing asale deed in favour of the plaintiff. 2(b) The plaintiff discharged the entire amount with interest tothe bank which come to Rs.1,300/-. The plaintiff has issued notice on2.2.1984 to the defendant demanding the defendant to execute the sale deedin terms of the agreement dated 13.5.1980. The defendant has not chosento sent any reply. Hence, the suit for specific performance of thecontract on the basis of the sale agreement dated 13.5.1980 or for analternative relief for a decree for Rs.1,300/- with interest.3 The defendant in his written statement would contend as follows:-3(a) The agreement dated 13.5.1980 is not true and valid and thesame was not supported by consideration. The plaintiff has not raised anyloan from the State Bank of India, Mayiladuthurai branch, and paid to thedefendant. There was no necessity for the defendant to borrow a loan fromthe plaintiff. The defendant's father one Chinapillai was holding somelands at Ananthagudi Village. The defendant has in or about 1968 paid anamount of Rs.400/- to his father Chinnapillai to meet his cultivationexpenses. His father promised him to return the money to him within aperiod of one year. But he did not keep up his promise instead he hadgiven a land of 8 cents to the defendant to be enjoyed by him absolutelyin the year 1969. Ever since the defendant is in enjoyment of the saidpiece of land which is described as the suit property.3(b) in the year 1980 the defendant was demanding his father tomake a settlement of his remaining lands. It appears that the defendant'sfather his brother Kannaiyan Pillai and his sister viz. the plaintiff haveconvened together to get back the suit property from the defendant. Thedefendant's father Chinapillai and the plaintiff along with the witness inthe document dated 13.5.1980 represented to the defendant that his fatherwas making a settlement of half of his remaining land to the defendant andalso stated that his father will affix his thumb impression only if thedefendant sign in that document. The defendant who knows only to sign hisname had affixed his signature without knowing the contents therein. Thedocument was kept with the defendant's father and understood to have beengiven to the plaintiff. Now the plaintiff wants to take advantage of theconcocted document after a long period and filed this suit.3(c) The plaintiff has not raised any loan from the Bank for thepurpose of lending money to the defendant. If at all the plaintiffobtained any loan from the Bank it should have been only for her personalbenefit and not for the defendant. Since the plaintiff could not https://hcservices.ecourts.gov.in/hcservices/ understand the contents in the notice, he has not chosen to send anyreply. Hence, the suit is liable to be dismissed.4. On the above pleading the trial court has framed three issues fortrial. On the side of the plaintiff P.W.1 and P.W.2 were examined andEx.A.1 to A.9 were marked. The defendant has examined himself as D.W.1. Nodocumentary evidence was let in on behalf of the defendant. After goingthrough the oral and documentary evidence adduced by both parties beforethe trial Court, the learned trial Judge has come to a conclusion that theplaintiff is entitled to the alternative prayer asked for in the plaintand accordingly decreed the suit for Rs.1,300/- with interest and coststhereby dismissing the prayer for specific performance. Aggrieved by thefindings of the learned trial Judge, the plaintiff has preferred an appealin A.S.No.2 of 1995 before the Additional Subordinate Judge,Mayiladuthurai. The learned first appellate Court after giving duedeliberation to the rival submissions of the parties concerned has allowedthe appeal thereby granting the relief of specific performance of contracton the basis of Ex.A.1, agreement dated 13.5.1980. Hence, the secondappeal by the defendant. 5. The substantial questions of law involved in this second appealare as follows:-"a) Whether the respondent is an aggrieved person to filethe first appeal before the Lower Appellate Court when she hadaccepted the alternative relief of the suit?b) The Lower Appellate Court has not committed an error oflaw allowing the appeal when the sale agreement was disputed bythe appellant?"6. The points:- 6(a) The trial judge has granted the alternative relief only onthe ground that in the cross-examination P.W.1 has deposed that she willbe satisfied with a decree for money due to her. The learned counselappearing for the appellant relied on 2003(3) MLJ 199 (SC) (Boramma Vs.Krishna Gowda and others), and contended that while appriciating theevidence, the Court cannot take an answer from the cross-examination of awitness in isolation and arrive at a conclusion drawing an inference fromthe same. The short facts in the above cited dictum runs as follows:- "An agricultural land measuring 2 acres, 20 guntas ofSurvey No.56/7 situated at Kuruvanka village, ChannarayapatnaTaluk, Hasan District (referred to in the judgment as the suitproperty) belonged to respondents Nos.1 and 2, who were minorsand under the guardianship of respondent No.3. On 30th November,1970, respondent No.3, as guardian of respondents 1 and 2, soldthe suit property in favour of the appellant and, in turn, theappellant executed an agreement for sale (reconveyance deed) infavour of respondents 1 and 2. Alleging that they have beenready and willing to perform their part of contract but the https://hcservices.ecourts.gov.in/hcservices/ appellant was not willing to re-convey the property in theirfavour, the respondents filed the suit, O.S.No.32 of 1973, inthe Court of Munsif, Channarayapatna in 1973. The appellantcontested the suit inter alia, on the grounds. (1) that theagreement(Ex.P.1) was not executed by him and (2) that theplaintiffs have not been ready and willing to perform their partof the contract and there is no averment to that effect in theplaint. After the trial , the trial Court dismissed the suit. Thefirst appellate Court confirmed the findings of the trial Court.Hence, the second appeal was preferred by the plaintiff beforethe High Court of Karnataka. The High Court of Karnataka hasallowed the second appeal on the ground that the respondentshave complied with the requirements of Section 16(c) of theSpecific Relief Act, thereby setting aside the concurrentjudgments of the courts below and decreed the suit filed by theplaintiff. Hence, the appeal was preferred by the defendantbefore the Honourable Apex Court. While disposing of theappeal the Honourable Apex Court has held as follows:-"There is yet another sentence to which great importance isattached by the learned counsel to contend that therespondents have not been ready after the filing of the suitand it reads. "I am unable to deposit the amount". In ourview it will not be a sound rule of appreciation of evidenceto pick up an answer from the cross-examination of a witnessand draw inference taking it in consistent the testimony ofthe witness is and as to how that answer fits in with therest of the evidence and probabilities of the case."The above said dictum exactly agrees with the facts of the present case.The trial Court relying on the evidence of P.W.1 in the cross-examinationthat she will be satisfied with a decree for money, has decreed the suitfor money, alternative prayer, thereby rejecting the relief of specificperformance of contract. The said findings was rightly set aside by thefirst appellate Court taking into consideration the other evidenceavailable on record. 6(b) The main consideration is whether Ex.A.1 is an agreement ofsale or merely a receipt for the payment made by the plaintiff. If Ex.A.1is construed to be a mere receipt for the payment of money arranged by theplaintiff to the defendant then there is no need for including a scheduleof property to Ex.A.1. The learned counsel for the appellant wouldcontend that there is no period stipulated under Ex.A.1 to perform thecontract and there is no sale price fixed for the property agreed to besold under Ex.A.1 and that Section 16(c) of the Specific Relief Act is notattracted in this case to show that the plaintiff was always ready andwilling to perform her part of the contract. But a reading of Ex.A.1 will https://hcservices.ecourts.gov.in/hcservices/ go to show that already the plaintiff had moved the State Bank of India toobtain a loan for the defendant who is none other than her brother to meetthe expenses incurred in his agricultural operations. The principleamount borrowed by the plaintiff is only Rs.700/- from the State Bank ofIndia. The defendant has failed to discharge the said loan inclusive ofinterest, amount due to the bank on the date of Ex.A.1 which comes toRs.1000/- and under Ex.A.1 the defendant has agreed to repay the said loanof Rs.1000/-, which was discharged by the plaintiff under Ex.A.4 to A.9and if he fails to discharge the said loan of Rs.1000/-, he had agreed tosell the property schedule to Ex.A.1 in favour of the plaintiff bypurchasing the stamp paper for executing a sale deed. The exact recitalin Ex.A.1 in Tamil runs as follows:-"nkw;go gh';fpy; ehsJtiuapYs;s mry;tl;o ghf;fp Vw;gLk; bjhif g{uht{k;vd;Dila bghUg;gpy; ehd; fl;Lntdhft[k; mg;go nkw;go 2 tUl bfLtpy; nkw;gobjhif vdf;F;r brhe;jkhd brhj;ij vd;Dila brhe;jrpytpy; rh;f;fhh; Kj;jpiuj;jhs;th';fp moapy;fz;l brhj;ij j';fs; bgaUf;F fpuarh!dk; vGjpf;fbfhLj;J hp$p!;jh;bra;J bfhLg;ngdhft[k; ,e;jg;go rk;kjpj;J ,e;j gj;jpuk; j';fSf;FvGjpf;fbfhLj;njd"The defendant has signed in Ex.A.1 and his father has also affixed hisleft hand thumb impression. Ex.A.1 is infavour of the plaintiff. Thedefendant would admit the execution of Ex.A.1 infavour of the plaintiff.He would depose that at the time when he asked his father to provide landfor constructing his house there arose a quarrel and only in that contextEx.A.1 came into existence under extraneous circumstance. Apart fromD.W.1 there was no witness examined on the side of the defendant. On theother hand defendant's father has himself affixed his left thumbimpression in Ex.A.1. The plaintiff has issued Ex.A.2-notice which wasreceived by the defendant under Ex.A.3-acknowledgment. InEx.A.2-notice also the plaintiff has asked the defendant to execute thesale deed in terms of Ex.A.1. But the defendant has not chosen tosend any reply to Ex.A.2-notice. So taking into consideration thecumulative effect of the oral and documentary evidence let in by theparties it cannot be denied that the defendant had agreed to sell theproperty scheduled to Ex.A.1 under Ex.A.1. Under such circumstances, I donot find any reason to interfere with the findings of the learned firstappellate Court in decreeing the suit for specific performance of contractwhich do not warrant any interference from this Court. Points are answeredaccordingly. https://hcservices.ecourts.gov.in/hcservices/

7. In the result, the appeal is dismissed confirming the decree andjudgment in A.S.No.2 of 1995 on the file of the Court of AdditionalSubordinate Judge, Mayiladuthurai. Considering the close relationshipbetween the parties there is no order as to costs.ssvSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo, 1. The Additional Subordinate Judge, Mayiladuthurai.2. The District Munsif, Mayiladuthurai.+ One cc to Mr. R Thirugnanam Advocate SR. No. 16221+ One cc to Mr. A. Muthukumar Advocate SR.No. 16156SSV (co)sg 9/4/07S.A.No.737 of 1997