✦ High Court of India · 31 Jul 2024

in the case of S.M.Gopal Chetty v. Raman alias Natesan

Case Details High Court of India · 31 Jul 2024

Court

High Court of India

Decided

31 Jul 2024

Bench

PRINCIPAL DISTRICT

Length

2,579 words

Acts & Sections

Code of Civil Procedure §100

S.A.No.145 of 2012JUDGMENTChallenge in this second appeal is made to the Judgement and Decree in A.S.No.48 of 2010 dated 22.07.2011 on the file of the Principal District Court, Namakkal, reversing the judgment and decree in O.S.No.596 of 1999 on the file of the Subordinate Court, Namakkal, dated 29.04.2010.2. For the sake of convenience, the parties are referred to as per their rankings in the Trial Court. 3.The defendants in O.S.No.596 of 1999 on the file of the Subordinate Court, Namakkal are the appellants herein.4. The case of the plaintiff, in brief, is that the plaintiff filed a suit directing the defendants 2 to 5 to execute the sale deed by receiving the balance of sale price Rs.5000/- and by way of permanent injunction, restraining the defendants 2 to 5 making any encumbrance over the suit property. According to the plaintiff, the suit property originally belonged to the 1st defendant/P.S.Loganathan. The 1st defendant agreed to sell the property to the plaintiff and both entered into an sale agreement on 18.8.1997. The sale price is agreed as Rs.1,32,000/- and on the day of sale agreement, the 1st defendant 2/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012received an advance amount of Rs. 1,27,000/- and the balance is only Rs.5000/-. The 1st defendant agreed to execute the sale deed on or before 17.8.2000 by receiving the balance sale price. Within the said date, if the plaintiff is not ready and willing to get to execute the sale deed, he will to loose the advance sum of Rs.1,27,000/-. If the defendant fails to execute the sale deed, then the plaintiff can get the execution of the sale deed through Court. As agreed, the plaintiff was always ready and willing to perform his part of the contract and issued notice on 29.09.1999 and requested the 1st defendant to come to the Registrar office at Erumapatti and execute the sale deed. But, the 1st defendant, instead of receipt of notice, did not come to the register office. Hence, the plaintiff filed a suit for specific performance of the contract, dated 18.8.1997 between the plaintiff and the 1st defendant. When the suit is pending, the 1st defendant died, and the defendants 2 to 5 were impleaded as legal heirs, and they are liable to execute sale as per the sale agreement dated 18.08.1997.5.The defendants contested the suit, denied the allegations in the plaint and filed a written statement and also denied the sale agreement between the plaintiff and the 1st defendant. The 1st defendant had a chit transaction with one P.Ramaraj. The 1st defendant was a subscriber in the chit sum of Rs. 1 lakh, in 40 instalments, which was run by P.Ramaraj. In the month of March 1998, he 3/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012took the chit in auction, and at that time, the 1st defendant put signatures and thump impression in the stamp papers, which were unfilled. In the chit transaction, the amount due was nearly Rs.25,000/- and the said P.Ramaraj in collusion with the plaintiff, filed the suit by creating and concocting the agreement. The sale agreement is a forged one, thus, pleaded to dismiss the suit. 6.On the basis of the abovesaid pleas set out by the respective parties, the following issues were framed by the trial Court for consideration: /- 1/jhth fpua xg;ge;jg; gj;jpuk; cz;ikahdjh>“2/thjp tHf;Fiuapy; nfhhpa[s;sgo Vw;wij Mw;Wf ghpfhuk; bgw jFjpa[ilatuh>3/thjp tHf;Fiuapy; nfhhpa[s;sgo epue;ju cWj;J fl;lis ghpfhuk; bgw jFjpa[ilatuh>4/vd;d ghpfhuk;>”7. Before the Trial Court, in support of the plaintiff's case, PW 1 and PW5 were examined and 3 documents were marked as Ex.A.1 to Ex.A.3. On the side of the defendants, DW1 and DW2 were examined and no documents were marked. Ex.C1 was marked.8. Upon considering the evidence and documents, the trial Court 4/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012dismissed the suit.9.Aggrieved over the same, the plaintiff had filed A.S.No.48 of 2010, before the Principal District Judge, Namakkal. The First Appellate Court, after considering the entire materials and evidence on record reversed the Judgment and Decree of the trial Court and allowed the appeal. Aggrieved by the same, the defendants have filed the present second appeal.10. The second appeal has been admitted on the following substantial questions of law:“(a) Whether the Lower Appellate Court has properly considered the provisions of Sections 10, 12 and 20 of the Specific Relief Act while reversing the judgment of the Trial Court refusing to exercise the discretion in favour of the plaintiff and declining the relief of specific performance particularly when the evidence of PW1, PW2, PW3 and PW4 are mutually contradictory to each other regarding the proof and alleged execution of Exhibit A-1?(b) Whether the Lower Appellate Court is right in law in reversing the judgment and decree of the Trial Court particularly when the Trial Court 5/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012has refused to exercise the discretion and declined the relief of specific performance based on sound reasoning and not perverse?(c) Whether the Lower Appellate Court is right in law in granting a decree for specific performance particularly when the defendant has denied the execution of the alleged agreement and a doubt has been raised as to the execution of Exhibit A1 by the Trial Court based on the oral evidence of PW1, PW2, PW3 and PW4?(d) Whether the Lower Appellate Court has followed the provisions laid down in Order 41 Rule 31 while reserving the judgment of the Trial Court?”11.The learned counsel appearing for the appellants contended that the judgment and decree of the Lower Appellate Court is against the probability of the case. The First Appellate Court failed to assign proper reasons for reversing the judgment and decree of the trial Court and overlooked the fact that the alleged agreement of sale is denied by the defendants. The Sale Agreement Ex.A.1 is not enforceable by law, and it was not executed by the deceased P.S.Loganathan at any point of time. The sale agreement does not contain the signature of the deceased P.S.Loganathan and also failed to consider the 6/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012inconsistency of the evidence of PW 2 to PW4 and overlooked that the evidence of PW1 and PW2 are mutually contrary and failed to consider the fact that Ex.A.1 Sale Agreement is not proved by the plaintiff. The plaintiff is not entitled for equitable discretionary relief or specific performance. The First Appellate Court failed to consider the fact that the plaintiff has not come to Court with clean hands and he is not entitled to the relief of specific performance and reiterated the other grounds raised in the grounds of appeal.12.Learned counsel for the appellants relied on the following judgments,1.[1997 SCC Online Mad 817] in the case of S.M.Gopal Chetty Vs. Raman alias Natesan.2.S.A.No.721 of 2013 in the case of M.Palaniyappan and ors Vs. Savithri.3.A.No.99 of 1971 in the case of Manickathammal and ors Vs. Nallasami Pillar and ors. Thus, pleaded to allow the second appeal. 13.The learned counsel appearing for the respondent supported the judgment of the First Appellate Court and contended that the execution of the sale agreement is proved with evidence. There is no reason to interfere with the 7/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012findings of the First Appellate Court. There is no irregularity and no substantial question of law is involved in this case and thus, pleaded to dismiss the Appeal.14.I have considered the matter in the light of the submissions made on either side and perused the materials on records as well as the Judgments passed by the Courts below.15.The case of the plaintiff is that the plaint schedule properties is owned by defendant (deceased P.S.Loganathan). He agreed to sell the plaint schedule properties for a sale consideration of Rs.1,32,000/- on 18.08.1997. He executed an unregistered sale agreement and received a sum of Rs.1,27,000/- as advance and the balance amount Rs.5,000/- has to be paid on or before 17.08.2000. Since the defendant/P.S.Loganathan had not come forward to complete the sale transaction, the plaintiff filed the suit. Pending suit the P.S.Loganathan died and his legal heirs have been impleaded. According to the defendants, the defendant/P.S.Loganathan had not executed the sale agreement dated 18.08.1997 and not agreed to the sale of the plaint schedule properties for a sum of Rs.1,32,000/- and not received the advance amount of Rs.1,27,000/-. The contention of the learned counsel for the defendants is that, the defendant P.S.Loganathan became the member of a chit transaction conducted by one P.Ramaraj of Erumapatti. For getting the chit amount, the said P.Ramaraj 8/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012obtained signatures of the defendant in 10 rupees blank stamp papers and other papers. By using that papers, the sale agreement has been fraudulently created by the plaintiff. The trial court considered the evidence adduced by the parties and found contradictions between the evidence of PW 1 to PW 4. The contradictions found by the trial Court is narrated as follows, th/rh/1d; epUgz thf;FK:yk; th/rh/2 Kjy; 4d; thf;FK:yj;Jf;F“ Kuz;ghlhf fhzg;gLfpwJ/ th/rh/2 Kjy; 4 j';fsJ rhl;rpa';fspy; fpuag;gj;jpuk; vGJtjw;F th/rh/4d; mYtyfj;jpw;F te;j gpwF thjp brd;W !;lhk;g; ngg;gh; th';fp te;jjhf TwpapUe;j nghjpYk; me;j tpguj;ij thjp jdJ rhl;rpaj;jpy; Twtpy;iy/ th/rh/1 jdJ FWf;F tprhuizapd;nghJ 1k; gpujpthjp rhl;rpfis miHj;J te;jjhft[k; mth; brhy;yr; brhy;y tpgu';fs; bts;is ngg;ghpy; vGjg;gl;L rPdpthrd; vd;gtuhy; jl;lr;R bra;ag;gl;ljhf[k;/ mjpy; vy;nyhUk; ifbaGj;jpl;ljhft[k; Twpa[s;shh;/ Mdhy; th/rh/2. 1k; gpujpthjp th/rh/M/1 fpua xg;ge;jj;Jf;fhd tpgu';fis bjhptpj;J mjw;Fhpa rhd;wht[dkhff; bfhLj;jjhft[k;/ mth; jhd; !;lhk;g; ngg;gh; th';fp te;jjhft[k; TwpapUg;gJ th/rh/1d; rhl;rpaj;jpw;F Kuz;ghlhf fhzg;gLfpwJ/ th/rh/1. 1 k; gpujpthjp jhd; !;lhk;g; ngg;gh; th';fp te;jhh; vd;gijf; Fwpg;gpl;Lf; Twtpy;iy/ !;lhk;g; ngg;gh; th';fg;gl;lJ Fwpj;J 1k; gpujpthjpa[k; thjpa[k; jhd; rhl;rpakspf;fKoa[k; vd;wnghjpYk; thjp mJ Fwpj;J rhl;rpakypf;ftpy;iy/ 1k; gpujpthjp ,we;Jtpl;lhh;/ vdnt !;lhk;g; ngg;gh; th';f;g;gl;lJ Fwpj;j re;njfk; bjspt[gLj;jg;glhknyna ,Ue;J tUfpwJ/9/ th/rh/1 jdJ FWf;F tprhuizapd;nghJ jhd; fpua xg;ge;jj;jpy; ifbaGj;jpltpy;iy vd;Wk;. 1 k; gpujpthjpa[k; rhl;rpfSk; fpuag; gj;jpuk; jahh; bra;jJk; ifbgGj;jpl;L tpl;Lr; brd;wtpl;ljhft[k;. fpua Kd; bjhif brYj;jg;gl;lJ Fwpj;J mth; rhl;rpakspf;ftpy;iy vd;gJ bjspthfj; bjhpa tUfpwJ/ me;j tpguj;jpy; ,Ue;J th/rh/M/1 Vw;gl;l njjpapy; 1k; gpujpthjpf;F thjp ve;jtpj bjhifa[k; brYj;jtpy;iy vd;gij ePjpkd;wk; mwpaKoa[k;/ th/rh/2 9/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012jdJ rhl;rpaj;jpy; fpua Kd; bjhifia Vw;fdnt 1k; gpujpthjpaplk; bfhLj;J tpl;ljhf mth; jd;dplk; brhd;djhft[k; kPjp fpuaj; bjhif U:gha;/5.000-? kl;Lk; bfhLf;fntz;Lbkd;W Twpajhft[k; rhl;rpakspj;jpUg;gjpy; ,Ue;J fpua xg;ge;jk; Vw;gl;l njjpapy; gzk; vJt[k; bfhLf;fg;gltpy;iy vd;gJ bjspthfj; bjhpa tUtjhft[k; thjpl;Ls;shh;/ nkYk; jdJ thJiuapd;nghJ. th/rh/M/1 fpua xg;ge;jk; Vw;gl;l md;W U:/1.27.000-? 1 k; gpujpthjpf;F thjpahy; bfhLf;fg;gl;lJ vd;gjw;F th/rh/1 Kjy; 4 Kd;Df;Fg; gpd; Kuzhd rhl;rpa';fs; mspj;J ,Ue;Js;shh;fs;/ cz;ikapnyna md;iwa njjpapy; thjp jug;gpy; Twg;gl;Ls;sJ nghy; bjhif brYj;jg;gl;oUe;jhy; nkw;go rhl;rpfs; xnu khjphpahf rhl;rpakspj;jpUg;ghh;fs;/ th/rh/1 jdJ rhl;rpaj;jpy; 1 k; gpujpthjp vLj;J te;j fpuag; gj;jpuj;ij jhd; ghh;f;ftpy;iy vd;W Twptpl;L mjd; gpwF nkw;go rhd;whtz';fspd; mog;gilapy; tpgu';fs; Twg;gl;ljhf khw;wp rhl;rpakspj;Js;ssh;/ th/rh/1 Kjy; 4 j';fsJ rhl;rpa';fspy; fpua xg;ge;jk; fhiy 10/30 kzpf;F th/rh/4d; mYtyfj;jpy; itj;J Vw;gl;ljhff; Twpa[s;sdh;/ MdhYk; mUfpy; cs;s rhh;gjpthsh; mYtyfj;jpy; fpua xg;ge;jj;ijg; gjpt[ bra;J bfhs;s Kaw;rpf;ftpy;iy vd;gJ th/rh/M/1 Vw;gl;l tpjj;jpd; kPJ re;njfj;ijna Vw;gLj;Jtjhfnt cs;sJ/ 16.Further, on perusal of the sale agreement Ex.A1, it is noticed that the sale agreement is fixed at a sum of Rs.1,32,000/- and an advanced amount of Rs.1,27,000/- has been paid on the same day. For payment of balance sale consideration i.e, Rs.5,000/-, 3 months time has been fixed. It created a reasonable doubt upon the intention of the parties to the sale agreement to sell the property. 17.Further, on perusal of the Ex.A1 sale agreement, it is noticed that the matter is typed to suit the signature below the stamp paper. In the first page, 10/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012there is a long gap in the typed words. In the second page, the gap is very small and in the last portion, there is a large vacant space left. It is observed by the trial Court. The relevant portion of the judgment is reproduced herein under:-11/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 201212/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 201213/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 201218.In the first page of the stamp paper, it is noticed that, the signature and thumb impression of PS.Loganathan is obtained. After signature and the thumb impression, there are some empty spaces available and on the second page, close to the signature and thumb impression the matter has been typed. It 14/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012reveals the fact that the signature and the thumb impression were obtained in the blank stamp papers and thereafter, to suit the signature and thumb impression the matter has been typed.19.Thus, the above observation and verification of Ex.A1 sale agreement reveals the way, in which, the matter has been written up. It is visible to the naked eye. To fill up the residuals, words were written up after it was signed by the defendant. PW 5 was unable to compare the thump impression in the 1st page of the stamp paper. Therefore, he did not give any opinion. With regard to other pages, PW 5 expressed his opinion that the signatures and the thumb impression belongs to defendant/P.S.Loganathan. The relief of specific performance either under common law or under Specific Relief Act is always a discretionary relief. That trial court after considering the contradictions with regard to the payment of advance amount and the fact that the matter has been written up and filling up the matter within the signed area, reached a conclusion that the plaintiff is not entitled to equitable relief. The First Appellate Court in its judgement and degree had not assigned any valid reasons for disagreeing the observation of the trial Court. 15/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 201220.Apart from this, on perusal of Ex.A1, the discrepancy is visible to the naked eye and creates the impression that it was written up after it was signed by the defendant. It probablies the defense that it was executed for chit transaction by the defendant. 21.Another circumstance in this case is that, while fixing the total sale consideration for an amount Rs.1,32,000/- and for completing the balance sale transaction i.e, Rs.5,000/-, fixation of 3 years time, is clearly a abnormal one. This also gives the impression that the agreement is not a genuine one. Therefore, I find that the plaintiff is not entitled for specific performance of sale agreement Ex. A1. The finding of the trial Court is based on the evidence. The First Appellate Court, without considering the evidence and without assigning any reasons, interfered with the exercise of discretion by the trial court. The First Appellate Court reversed the finding of the judgement and decree of trial court without any valid reason. The First Appellate Court has not properly considered the provisions under sections 10 and 12 of Specific Relief Act, while reversing the judgement and decree of the trial court. The finding of the judgment and decree of the First Appellate Court is not factually sustainable and liable to be set aside. Accordingly, the order made in A.S.No.48 of 2010 dated 22.07.2011 on the file of the Principal District Court, Namakkal is set 16/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012aside. 22.In the result, the judgment and decree of the trial Court in O.S.No.596 of 1999 on the file of the Subordinate Court, Namakkal, dated 29.04.2010 is restored. Accordingly, this Second Appeal is allowed. No costs. Consequently, connected miscellaneous petition, if any, is closed..07.2024gdIndex : Yes/NoInternet: Yes/NoSpeaking order/Non-Speaking orderNeutral Citation : Yes/No To1. The Principal District Court, Namakkal2.The Subordinate Court, Namakkal17/18 https://www.mhc.tn.gov.in/judis S.A.No.145 of 2012V.SIVAGNANAM, J.gdPre-Delivery Judgment made in S.A.No.145 of 2012.07.202418/18

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