Madrasdated High Court · 2025

S.A.No.417 of 20232. Parties are indicated herein as per their litigative status and ranking before the trial Court.3. According to the plaintiff, suit property belongs to the defendant. The defendant agreed to sell the suit property to the plaintiff for sale consideration of Rs.4,00,000/-. In the presence of the witnesses, plaintiff paid a sum of Rs.2,25,000/- as an advance. Period of performance was fixed as one year. The defendant executed the agreement for sale in favour of the plaintiff on 13.03.2011. The plaintiff has been willing and ready to perform his part of contract by paying the remaining sale consideration of Rs.1,75,000/-.3.1. But the defendant does not come forward to execute the sale deed and is protracting the execution of sale deed. Plaintiff expressed his willingness and readiness to perform his part of contract in person and through his men to the defendant. On 14.02.2012, the plaintiff issued a legal notice to the defendant to be present at the Office of the Sub-Registrar to receive the remaining sale consideration and to execute the sale deed. It was received by the defendant and he sent the reply notice with false contentions on 13.03.2011 and denied the execution of sale agreement. It is incorrect to state that the defendant mortgaged the property to the plaintiff 2/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023for a sum of Rs.1,25,000/- and received only a sum of Rs.50,000/- and on or before 05.03.2012, he has to pay a sum of Rs.75,000/- and obtain a receipt from the defendant: For one year period, the plaintiff was allowed to cultivate the suit property for interest and upon receiving the principal amount, he has to hand over the possession of the suit property to the defendant are incorrect details. Hence, the suit was laid for relief of specific performance in respect of the suit property.4. Contending contra, the defendant would inter-alia contend that the execution of sale agreement by the defendant is an utter lie. The suit agreement is a rank forgery. The plaintiff has forged the sale agreement. The defendant purchased the suit property on 06.02.2008 for a sum of Rs.3,60,900/- and he had mortgaged the suit property with Bank of India, Azhghapuram Branch on 06.08.2008 by executing mortgage deed in favour of the Bank and the said debt is not repaid till date. The plaintiff, who is residing in the place where the suit property is situated, requested the defendant to hand over the suit property for mortgage, for which the defendant refused. As the plaintiff persisted the defendant, on 13.11.2010, he mortgaged the suit property for a sum of Rs.1,25,000/- for a year and he received only a sum of Rs.50,000/- and the plaintiff has to pay a sum of Rs.75,000/- on or before 05.03.2011. The mortgage deed is with the plaintiff and 3/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023Xerox copy of the mortgage deed is with the defendant. Based on the said mortgage deed, the plaintiff has been cultivating in the suit property but did not pay the remaining amount of Rs.75,000/- to the defendant. In January 2012, the defendant through Rajendran, Balu, Selvam, Thirukkonam Karuppusamy, Kundaveli Rajendran, the plaintiff agreed to hand over the possession of the land after harvesting groundnut. Contra to the same, the plaintiff forged the sale agreement and he has issued notice to the defendant with false contentions and laid a false suit.5. Based on the divergent pleadings, the trial Court framed appropriate issues. At trial, to substantiate the plaint details, four witnesses have been examined and seven documents have been marked. P.W.1 is the plaintiff, P.W.2- K.Ganesan is one of the attestors to Ex.A1 sale agreement, P.W.3- Jamal Basha is the scribe of Ex.A1 and P.W.4- Rajendran is an independent witness who spoke about the signature of the defendant in Ex.A1, as the other attesting witness has gone abroad. On the defendant side, three witnesses have been examined and four documents have been marked. Ex.B2 dated 06.08.2008, is the certified copy of mortgage deed executed by the defendant in favour of Bank of India, Azhagapuram branch in respect of the suit property. Ex.B3 dated 05.03.2013 is the encumbrance certificate in respect of the suit property for the period from 01.01.1987 to 03.03.2017. 4/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023Ex.B4 dated 01.01.2021 is the encumbrance certificate in respect of the suit property for the period from 01.01.1975 to 27.02.2021.6. The trial Court upon consideration of the oral and documentary evidence and after hearing the arguments advanced by either side, concluded that as the property is already mortgaged with the Bank of India, Azhagapuram Branch, relief of return of money was ordered in favour of the plaintiff. 7. Aggrieved, the plaintiff preferred first appeal in A.S.No.15 of 2022 before the Additional District Court, Ariyalur. The First Appellate Court upon consideration of entire material records and after hearing the arguments advanced by either side concluded that the non-mentioning of details of equitable mortgage deed executed by the defendant in favour of Bank of India, Azhagapuram Branch, is fatal to the plaintiff's case and ordered return of advance money to the plaintiff and thereby confirming the judgement of the trial Court.8. The following substantial question of law arise for consideration:-5/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023“Whether the First Appellate Court erred in law in granting relief of return of advance money without appreciating the evidence of plaintiff's side in a proper perspective?”9. Ex.A1 dated 13.03.2011 is the suit sale agreement executed by the defendant. Ex.A5 is the downloaded copy of patta issued in the name of the plaintiff in Patta.No.477. Ex.B1 is the sale deed executed by Manoharan Vagaiyara in favour of the defendant in respect of the suit property on 06.02.2008 (certified copy). Ex.B2 dated 06.08.2008 is the certified copy of mortgage deed executed by the defendant in favour of Bank of India, Azhaghapuram Branch in respect of the suit property. Ex.B3 and Ex.B4 are the encumbrance certificates in respect of the suit property.10. In a suit for specific performance, the basic principle of law is that the plaintiff who is the vendee must aver and prove that he has been continuously ready and willing to perform his part of the contract throughout. Therefore, the burden lies on the plaintiff to prove the fact. It is also interesting to note that it is really the evidence that has to be appreciated and it may be oral, documentary or circumstantial in nature.11. It is relevant to refer to the observations made in Nirmala Anand 6/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023Vs. Advent Corpn. (P) Ltd. reported in (2002) 8 SCC 146, a Three Judge Bench of the Apex Court held as under:-“It is true that grant of decree of specific performance lies in the discretion of the court and it is also well settled that it is not always necessary to grant specific performance simply for the reason that it is legal to do so. It is further well settled that the court in its discretion can impose any reasonable condition including payment of an additional amount by one party to the other while granting or refusing decree or specific performance. Whether the purchaser shall be directed to pay an additional amount to the seller or converse would depend upon the facts and circumstances of a case. Ordinarily, the plaintiff is not to be denied the relief of specific performance only on account of the phenomenal increase of price during the pendency of litigation. That may be, in a given case, one of the consideration besides many others to be taken into consideration for refusing the decree of specific performance. As a general rule, it cannot be held that ordinarily the plaintiff cannot be allowed to have, for her along, the entire benefit of phenomenal increase of the value of the property during the pendency of the litigation. While balancing the equities, one of the consideration to be kept in view is as to who is the defaulting party. It is also to be borne in mind whether a party is trying to take undue advantage over the other as also the hardship that may be caused to the defendant by directing the specific 7/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023performance. There may be other circumstances on which parties may not have any control. The totality of the circumstances is required to be seen.”12. In K. Prakash Vs. B.R. Sampath Kumar, reported in (2015) 1 SCC 597, the Apex Court observed as under:-“The principles which can be enunciated is that where the Plaintiff brings a suit for specific performance of contract for sale, the law insists a condition precedent to the grant of decree for specific performance that the Plaintiff must show his continued readiness and willingness to perform his part of the contract in accordance with its terms from the date of contract to the date of hearing. Normally, when the trial court exercises its discretion in one way or other after appreciation of entire evidence and materials on record, the appellate court should not interfere unless it is established that the discretion has been exercised perversely, arbitrarily or against judicial principles. The appellate court should also not exercise its discretion against the grant of specific performance on extraneous considerations or sympathetic considerations. It is true, as contemplated u/s 20 of the Specific Relief Act, that a party is not entitled to get a decree for specific performance merely because it is lawful to do so. Nevertheless once an agreement to sell is legal and validly proved and further requirements for getting 8/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023such a decree is established then the Court has to exercise its discretion in favour of granting relief for specific performance.”13. The plaintiff has examined himself as P.W.1. He has filed proof affidavit in line with the plaint details. P.W.2- Ganesan is one of the attestors to Ex.A1-Agreement for sale. He has identified his signature found in the suit sale agreement. The other attesting witness, the plaintiff and defendant are his relatives. As he has deposed that as per Ex.A1 agreement for sale, he does not know whether the plaintiff paid a sum of Rs.2,25,000/- as advance he was treated as hostile witness and cross-examined by the plaintiff's side. The fact that the other attesting witness Selvaraj had gone to abroad is not in dispute. P.W.4- Rajendran, who is a relative of the defendant would depose that on 13.03.2011, the defendant agreed to sell the suit property to the plaintiff for a sale consideration of Rs.4,00,000/- and a document was executed. On the same day, the plaintiff paid advance amount of Rs.2,25,000/- to the defendant and he has spoken in support of the plaintiff. The relevant portion of his evidence is culled out and which is given hereunder (P.W.4):-9/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023''// fle;j 13/03/2011 njjpad;W gpujpthjp bry;tuh$Pf;F brhe;jkhd jhth brhj;ij U:/4.00.000-? f;F thjp jhrujpf;F fpuak; bfhLg;gjhf xg;g[f; bfhs;sg;gl;L xU Mtzk; vGjpf; bfhz;lhu;fs;/ md;iwajpdnk ml;thd;!; bjhifahf U:/2.25.000-? thjp gpujpthjpaplk; brYj;jp tpl;lhu;/ kPjp bjhif U:/1.75.000-? I xU tUl fhyj;pw;Fs; gpujthjp trk; brYj;jp jhth brhj;ij thjp fpuak; bra;J bfhs;tjhf vGjg;gl;lJ/ nkw;go Mtzj;ij bry;tuh$; th';fp te;jhhu;/ nkw;go Mtzj;ij xU gha; vGjpdhhu;/// // nkw;brhd;d fpuak; bra;J bfhs;tJ bghUl;L vGjg;gl;l fpua xg;ge;j Mtzj;jpy; fz;Ls;s tptu';fis vGj;Jf;fhuu; goj;J fhz;gpj;jhu;/ mt;thW goj;J fhz;gpf;Fk; nghJ nkw;brhd;d 7 egu;fSk; cld; ,Ue;njhk;/ nkw;brhd;d Mtzk; vGjg;gl;l gpwF thjpa[k;. gpujpthjpak; ifbaGj;J bra;jhu;fs;/ mtu;fs; ifbaGj;J bra;jij eh';fs; 7 ngUk;ghu;j;njhk;/// th/rh/M/1 Mf FwpaPL bra;ag;gl;Ls;s 2tJ rhl;rp ifbaGj;J vd;Dila ikj;JdUilaJ jhd;/ vdJ ikj;Jdh; jw;nghJ gf;iud; ehl;oy; cs;shu;///''14. P.W.3- Jamal Basha is the scribe of the suit sale agreement. He would depose that on 13.03.2011, he scribed Ex.A1 sale agreement and he has supported the case of the plaintiff in full. During the cross-examination of plaintiff's side evidence, no details advantageous to the defendant was elicited. The defendant has pleaded forgery with regard to Ex.A1 sale agreement and as per Section 101 to 103 of Indian Evidence Act, one who 10/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023pleads has to prove. But the defendant has not taken any steps to prove the fact that the suit sale agreement was forged. He was posed a question during the cross-examination, that after the receipt of Ex.A2 legal notice issued by the plaintiff, he did not lodge a complaint before the police.15. The defendant apart from examining himself, he also examined one D.W.2- Rajendran. He would depose that on 13.11.2010, the defendant executed only a mortgage deed for a sum of Rs.1,25,000/- and received a sum of Rs.50,000/- from the plaintiff. He feigned ignorance about the suit survey number and boundary details. D.W.3 one Selvam has no knowledge about the mortgage deed executed by the defendant in favour of the Bank. He would also depose that he does not know about the money transactions taken place between the plaintiff and the defendant. From a careful cumulative analysis of P.W.1 to P.W.4 and D.W.1 to D.W.3, it is made clear that the suit sale agreement was executed by the defendant. The First Appellate Court has concluded that the execution of suit sale agreement is not proved by the plaintiff and the said finding has to be necessarily interfered with.16. On a careful perusal of Ex.B1- Sale deed, on 06.02.2008, the defendant has purchased the suit property from Manoharan Vagaiyara for a 11/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023sale consideration of Rs.3,60,900/-. Thereafter, after six months from the date of Ex.B1- Sale deed, the suit property has been mortgaged with Bank of India, Azhagapuram Branch by the defendant herein for a sum of Rs.5,00,000/- as per Ex.B2. Three years thereafter, Ex.A1 sale agreement was executed, fixing sale consideration at Rs.4,00,000/-. When the defendant purchased the said property in year 2008 as per Ex.B1 and the sale consideration was Rs.3,60,900/-. After three years, only 40,000/- is added and sale consideration is fixed at Rs.4,00,000/- is not acceptable. The defendant would state that he executed a mortgage deed in favour of the plaintiff and he would state that he has got the original mortgage deed with him and no such document was marked by the defendant during the trial, would go to show that the said details are not true. As the execution of Ex.A1, sale agreement has duly been proved by the plaintiff through the evidence of himself and P.W.2 to P.W.4 and the defendant having received the legal notice, remained silent without taking any effective steps against the plaintiff would lead to the conclusion that the agreement for sale Ex.A1 was executed by the defendant as a loan document. On a perusal of Ex.B4 encumbrance certificate, defendant has executed mortgage deed on 06.08.2008 in favour of Azhagapuram Bank of India Branch and the said details are reflected in Ex.B4. This fact also dis-entitles the plaintiff from the claim for the relief of specific performance. Therefore, the trial Court as well 12/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023as the First Appellate Court have rightly ordered the return of advance money stands confirmed in order to do full justice to the plaintiff.17. The substantial question of law is answered against the plaintiff. This Court does not find any good reason to upset the concurrent finding of both the Courts. This Court does not find any infirmity or perversity in the finding of the First Appellate Court.18. Above being the position, this Second Appeal stands dismissed. Sequel to this, the judgment and decree passed by the First Appellate Court in A.S.No.15 of 2022 on the file of the Principal District Court, Ariyalur, stands confirmed. There is no order as to costs. 17.10.2025Index:Yes/NoSpeaking/Non-speaking orderInternet:YesNeutral Citation:Yes/NoMacCopy to 1.The Principal District Court, Ariyalur,2.The Subordinate Court, Jayangondam.13/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023 R.KALAIMATHI, J.mac14/15 https://www.mhc.tn.gov.in/judis S.A.No.417 of 2023S.A.No.417 of 2023 17.10.202515/15