High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 28.3.2007Coram:The Honourable Mr.Justice J.A.K.SAMPATH KUMARA.S.No.856 of 2006and M.P.No.1 of 20061.Rajeswari2.Sekar3.Rajendran..Appellants/Defendants 1 to 3-vs-1.K.M.Kumarasamy..Respondent 1/Plaintiff2.Ravichandran3.M.Ramesh..Respondents 2 and 3/Defendants 4&5First Appeal filed Under Section 96 of the Civil Procedure Codeagainst the Judgment and decree dated 2.9.2006 made in O.S.No.612/2004 onthe file of the Additional District Judge (Fast Track Court No.1)Coimbatore. For Appellants:- Mr.P.Rajendran For Respondents:-for R1 :- Mr.P.Valliappanfor R3:- No appearanceJUDGMENTThis appeal is filed against the Judgment and decree dated 2.9.2006made in O.S.No.612/2004 on the file of the Additional District Judge (FastTrack Court No.1)Coimbatore in and by which the learned District Judgeafter analysing the evidence found that the plaintiff is entitled to suitclaim and accordingly decreed the suit.2. For convenience, the parties are referred as arrayed in theOriginal Suit. The brief facts of the case are as follows:-3. Plaintiff states as follows:-3.1. The first defendant is the widow and defendants 2 to 5 are thesons of one Moses Thiagarajan, since deceased. They have inherited theestate of Moses Thiagarajan. The suit property had belonged to one https://hcservices.ecourts.gov.in/hcservices/ Elisabeth, wife of Draviam, who is the mother of Moses Thiagarajan and sheis also dead. While alive, she had bequeathed it under a will dated4.6.1984 to Moses Thiagarajan. Therefore, the defendants 1 to 5 are thelegal representatives-in-interest of Moses Thyagarajan in respect of thesuit property.3.2. Moses Thiagarajan when he was alive had entered into a writtenagreement of sale on 13.10.2003 with the plaintiff promising to sell theproperty to the latter free of encumbrances for the sum of Rs.6,25,000/-(Rupees Six Lakhs and Twenty Five thousand only). On the said date, MosesThiagarajan had received from the plaintiff the sum of Rs.6,00,000/-(Rupees Six Lakhs only) as advance sale consideration, which fact is alsorecited in the Agreement itself. A period of eleven months had beenstipulated for the completion of the contract, as Moses Thiagarajan wantedto go to Madras for medical treatment and consequently requested time tomake arrangement of delivery of possession of the property to theplaintiff.3.3. The plaintiff had always been and even now is ready and willingto specifically perform his part of the contract. The plaintiff, afterdeath of Moses Thiagarajan had appraised all the defendants about theagreement and offered to pay the balance of Rs.25,000/- (Rupees TwentyFive thousand only) and asked them to execute the sale deed as per theagreement, since they are bound under Law to do so. The second defendantoften goes away to Delhi and the other defendants pretend that there wasno co-operation amongst themselves and therefore, they were postponing toperform their part of the contract under some pretext or other. In viewof the attitude of the defendants, the plaintiff caused a notice dated13.7.2004 to be issued by his counsel demanding specific performance ofthe contract by receiving the balance of sale consideration and executingthe sale deed and having it registered at his costs and expenses.Defendants 1 to 3 evaded receipt of the notice. Defendants 4 and 5received the notice on 14.7.2004. They did not send any reply. Thedefendants have failed to receive the balance of consideration and executethe sale deed. Hence this suit. 4. Defendants 1-3 state as follows:-4.1. The relationship between the plaintiff and Mr.Moses Thiagarajanis one of lender and borrower. 4.2. Late Mosses Thiagarajan borowed a sum of Rs.1,00,000/- (RupeesOne Lakh only) of loan from the plaintiff in November, 2002. At thattime, the title deed of the suit property was given to the plaintiff. Thetitle deed is in the name of Elizabeth, the late Mother of late Mr.MossesThiagarajan. In order to safe guard his money, which was given as loan tolate Mosses Thiagarajan, the plaintiff herein obtained signature of lateMosses Thiagarajan in a stamped paper. Later on the plaintiff in order tocapture the valuable suit property has fabricated and forged an allegedagreement of sale. https://hcservices.ecourts.gov.in/hcservices/

4.3. The recitals in the alleged agreement of sale are fictious andconcocted. The Plaintiff who pays Rs.6,00,000/- (Rupees Six Lakhs only)as advance towards sale price is taking 11 months for balance ofRs.25,000/- (Rupees Twenty Five thousand only). This is unbelievable.Even then assuming, on the date of alleged completion of 11 months i.e. on13.9.2003 the plaintiff has not expressed his willingness and readiness topay the paltry balance sum of Rs.25,000/- (Rupees Twenty five thousand) tolate Mosses Thiagarajan. The explanation given for the delay is false. 4.4. The signature of late Mosses.Thiagarajan on the blank stamppaper is misused by the plaintiff.4.5. The typed agreement of sale which is now disputed by thedefendants 1 to 3 is fabricated and forged one. Hence the suit is liableto be dismissed.5. Plaintiff examined as P.W.1. One Thiru Arumugam examined asP.W.2. Ex.A.1 to A.17 were marked on the side of the plaintiff. OneMr.Thiyopilas Rajendra Kumar examined as D.W.1. No documents filed on theside of the defendants to confront the claim of the plaintiff. 6. The lower court after analysing the evidence in depth found thatthe plaintiff is not entitled to suit claim and accordingly dismissed thesuit. This appeal is filed by defendants 1 to 3 against such finding.7. Heard Mr.P.Rajendran, learned counsel for the appellants andMr.P.Valliappan, learned counsel for the first respondent.8. Upon hearing the rival claims, the only point for consideration iswhether the suit transaction is one related to specific performance of thecontract or with reference to the money dealings. 9. Point No.1:-9.1. It is true that the suit property originally belongs to oneElisabeth wife of Draviam, who is the mother of Mosses Thiagarajan,husband of the first defendant and father of defendants 2 to 5. 9.2.The said Elisabeth wife of Draviam while alive had bequeathed thesuit property by the will dated 4.6.84 in favour of Mosses.Thiagarajan.The inheritance of the suit property by virtue of the said will byMosses.Thiagarajan is not under dispute. Therefore in pursuance of thewill dated 4.6.84, Mosses.Thiagarajan, became the absolute owner of thesuit property on the death of his mother, Elisabeth wife of Draviam who isthe testator of the said will. 9.3.The counsel for the appellant contended that while Mosses.Thiagarajanwas alive, obtained a loan of Rs.1,00,000/-(Rupees one lakh) from theplaintiff in November 2002 and handed over the title deed of the suit https://hcservices.ecourts.gov.in/hcservices/ property to the plaintiff in addition of putting his signature in a blankstamp paper as securing for loan. He further contended that with a viewto grab the suit property by fraudulent means, the plaintiff filled theblank stamp paper signed by late Mosses Thiagarajan with a recital as ifthe said late Mosses Thiagarajan executed the agreement of sale fixing thesale price of Rs.6,25,000/- after receiving a sum of Rs.6,00,000/- asadvance and misused the same by filing the suit. He also relied on thedecision reported in TEJRAM VS PATIRAMBHAU (1997 9 SCC 63) in support ofhis contention.9.4.The learned counsel for the respondent would contend that lateMosses.Thiagarajan received a sum of Rs.6,00,000/- and executed anagreement of sale for a sum of Rs.6,25,000/- in respect of the suitproperty as per Ex.A.1 and that the suit transaction is genuine andtherefore, there is no truth in the contention of the defendants.10. Learned counsel for the plaintiff/first respondent relied on thedecisions reported in the following judgments:-1)VISHNU MOHAN VS IN-CHARGE DISTRICT JUDGE MATHURA AND OTHERS (AIR 2004NOC 16 (ALL))2)NANJAMMAL AND ANOTHER VS PALANIAMMAL (1993 -2 L.W.205)3)DAGADU BAPU SHINDE VS VASANT SHANKAR NMIMBALKAR (AIR 1988 Bombay 22)4)SUDHAKARRAO SHANKARRAO SARNAIK VS BHANUDAS N.DESHMUKH AND ANOTHER (AIR2004 Bombay 350)5)GURMAIL SINGH AND OTHERS VS RAJINDER SINGH (AIR 2003 Punjab-Haryana-336)11. It is true that the agreement of sale entered into between theplaintiff and the defendant was on 13.10.2003. It is also true that thesaid agreement was prepared on the stamp paper dated 13.11.2002.12. It is also true that the stamp paper was purchased in the monthof November 2002. It is the case of the defendant that in the month ofNovember 2002, there was a money dealing between him and the plaintiff,correlating to the date of purchase of stamp paper over which the presentagreement of sale has been prepared which is under dispute. In thiscontext, let me deal the facts referred in the decision cited by thecounsel for the appellant/defendant.13. In that case, plaintiff/agreement holder was a money lender.There is a discrepancy in the date of execution of agreement of sale. Itis a specific case of the vendor that only in pursuance of the moneydealing, the said document was executed by him. Since the agreementholder, admittedly, a money lender, it was held that the document reliedon by the agreement holder should be related to the money dealing and not https://hcservices.ecourts.gov.in/hcservices/ for the specific performance of the contract. The case on hand is not so.The agreement holder is not a money lender. It is also not the case ofthe defendant/vendor that the plaintiff/agreement holder is a moneylender. In such view of the fact, I am of the view that the decisioncited by the learned counsel for the appellant/defendant is not applicableto the facts on hand. 14. After analysing the decision cited by the learned counsel for therespondent/plaintiff, the following points are unearthed out of it. 1)In a case of defence of money dealing by the vendor, it is for thevendor to prove the transaction as one of money dealing by some modes.2)Failure to prove the discharge of money dealing, an adverse inferencehas to be drawn against the vendor.3)Not sending any reply to the notice of the agreement holder an adverseinference has to be drawn against the vendor.4)Even if there is any discrepancy in the date of purchase of the stamppaper, i.e. prior to date of the sale transaction, it will not affect theagreement of sale transaction.5) The defence theory is hit by Section 92 of the Indian Evidence Act,unless there are circumstances which would prove that equity will sufferby enforcing the agreement for sale. 15. Admittedly, even according to the appellant/defendant, loanamount is not discharged so far. The loan transaction is of the year 2002.So far, the appellant/defendant has not voluntarily come forward todischarge the loan amount to sustain his claim of loan transaction. Infact, this court passed an order of interim stay on 6.2.2007 in M.P.No.1of 2006 in A.S.856 of 2006 directing the appellant/defendant to deposit asum of Rs.6,00,000/- to the credit of O.S.No.612 of 2004 on the file ofthe District Judge, Coimbatore, within eight weeks from that day, failingwhich the interim stay granted shall stand automatically vacated. Itappears that the appellant/defendant has not complied with the conditionso far. However, the time for complying with the condition expires onlyon 2.4.2007.16. In this case, the suit notice was issued to the defendant, whichwas also received by the defendant/appellant. They have not replied tothe said notice. In this case, the original sale deed of the testator washanded over to the plaintiff by the vendor and the same is marked asExhibit A.8. Patta has been issued in the name of Mosses. Thiagarajan,the vendor in the suit transaction. House tax has been paid by theplaintiff. Documents were filed to prove such fact. https://hcservices.ecourts.gov.in/hcservices/

17. If the contention of the appellant/defendant is true that thesuit transaction is only a money transaction, he would have paid the housetax for the suit property and produced the same to prove his contention inthat way. No where it is stated that the defendant/appellant are payingthe house tax for the suit property, if the transaction is one of loantransaction. There is no proof to show that the appellant/defendant paidthe house tax for the suit property. Instead, the plaintiff paid the housetax and produced the receipt to prove that the suit transaction is not oneof loan transaction. 18. Further the defendants failed to let in any evidence to provethat the defence theory is not hit by Section 92 of the Indian EvidenceAct. 19. Collective events coupled with the decisions cited by the learnedcounsel for the plaintiff/defendant would prove that the suit transactionis not one of loan transaction but otherwise. The lower court has alsodealt this point in that line and answered in favour of the plaintiff. Ido not find any illegality or impropriety in the finding of the lowercourt. The finding of the lower court is in order and does not requireany interference. Hence, this point is answered in favour of theplaintiff. Accordingly, the appeal fails and the same is dismissed.Consequently, connected miscellaneous petition is also dismisssed.nvsriSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1.The Additional District Judge,(Fast Track Court No.1)Coimbatore.2. The Section Officer. V.R. Section, High Court, Chennai,+ One cc to Mr. P. Rajendran Advocate SR 19871+ One cc to Mr. P. Valiappan Advocate SR 19734JRG (co)sg 9/4/07A.S.No.856 of 200628.3.2007