2009 Supreme(Mad) 5265
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE M. JEYAPAUL
Chinnammal
Versus
Chinnathambi
Second Appeal No.1651 of 1995
Decided on : 03-12-2009
Act Referred
Headnote
specific performance - agreement of sale - 29.09.1988 - [Specific Relief Act, 1963 - Section 16(c), Indian Stamp Act, 1899 - Section 35, Indian Evidence Act, 1872 - Section 101] - The court analyzed the evidence and found that the plaintiff had established that the defendant executed the agreement of sale in her favor and that she was ready and willing to perform her part of the contract. The court held that the lower courts had returned a perverse finding without properly adverting to the evidence on record and without applying the correct principles of law.
Fact of the Case:
The plaintiff filed a suit for specific performance of an agreement of sale dated 29.09.1988. The defendant denied entering into the agreement and claimed it was forged. The Trial Court and the First Appellate Court found in favor of the defendant.
Finding of the Court:
The court found that the plaintiff had established that the defendant executed the agreement of sale in her favor and that she was ready and willing to perform her part of the contract. The lower courts' findings were deemed perverse.
Issues: Dispute over the execution of the agreement of sale, readiness and willingness of the parties to perform the contract, burden of proof.
Ratio Decidendi: The plaintiff's evidence established the execution of the agreement of sale and her readiness and willingness to perform the contract, shifting the burden of proof to the defendant. The lower courts' failure to properly analyze the evidence and apply the correct legal principles led to a perverse finding.
Final Decision: The plaintiff was granted a decree for specific performance of the agreement of sale, and the defendant was directed to execute the sale deed failing which the court would do so in favor of the plaintiff.
For the Appellant :Ms. M. Srividya, Advocate.
For the Respondent:P. Jagadeesan, Advocate.
The plaintiff is the appellant herein.
2. The suit is one for specific performance of the agreement of sale.
3. The plaintiff/appellant Chinnammal would contend in the plaint, that the defendant entered into a written sale agreement with the plaintiff on 29.09.1988 to sell the suit property at the rate of Rs.29,000/- per acre and received a sum of Rs.5000/-as advance from the plaintiff. The defendant agreed to receive the balance amount of Rs.24,000/- from the plaintiff on or before 112. 1988 and execute the sale deed in the name of the plaintiff. It is contended that the defendant was not ready to perform his part of the contract inspite of the demand made by the plaintiff to execute the dale deed receiving the balance sale consideration. The plaintiff issued a notice through her counsel on 012. 1988 calling upon the defendant to execute the sale deed, receiving the balance sale consideration. But the defendant did not give any reply to the said notice. Hence the suit for specific performance of the agreement of sale.
.4. The defendant/respondent Chinnathambi has specifically denied that he having agreed to sell the suit property at the rate of Rs.29,000/-per acre received a sum of Rs.5000/- as advance. The suit agreement was forged at the convenience of the .henchman of the plaintiff. No sale agreement was executed by the defendant. The suit property which is a valuable property is worth more than Rs.50,000/- even in the year 1988. There was no necessity for the defendant to sell the suit property as he had sufficient means to maintain his family. The defendant sent a suitable reply to the notice issued by the plaintiff on 112. 1988. There was a dispute with respect to a Well and the Pathway between the plaintiffs brothers and the defendant. A panchayat was convened in the month of September 1988 at Kottakavudanpatti Village. The panchayathars namely Rakkianna Goundar, Chetti, Arthanari Goundar and Ponnusami Goundar obtained the signature of the defendant on the blank stamped paper for the purpose of enforcing the panchayat decision. But the matter was not settled after the panchayat. The panchayatars returned the blank stamp papers signed by the defendant. The defendant suspects that the plaintiff would have obtained the blank stamped papers signed by the defendant from the panchayathars and would have created the sale agreement at the instigation of her brothers. The panchayathars replied to the demand made by the defendant that the blank signed papers were missing from the custody of Rakkianna Goundar. In order to wreak vengeance, the present suit has been laid. The defendant prays for dismissal of the suit.
5. On the side of the plaintiff, the agreement of sale in dispute dated 29.09.1988 was marked as Ex.A1. Pre-suit notice dated 012. 1988 sent by the plaintiff through her counsel and the acknowledgment showing the receipt of the said notice by the defendant were marked as Exs.A2 and A3. The plaintiff also produced a sale deed Ex.A4 dated 12.02.1990 executed by Chittaiyan in her favour for a sum of Rs.84,375/-to show that the plaintiff had wherewithal to clinch the sale transaction with the plaintiff. On the side of the plaintiff, the plaintiff was examined as PW.1, the attestor to Ex.A1 was examined as PW.2 and the scribe to the said document was examined as PW.3. On the side of the defendant, the defendant was examined as DW.1 no other witness was examined on his side. The pleadings and counter pleadings in the case in O.S.No.37 of 1989 between the plaintiffs brothers and the defendant were marked as Exs.B1 to B3.
.6. The Trial Court having adverted to the minor discrepancies found in the evidence of PW.1, PW.2 and PW.3 and completely relied upon the oral uncorroborated evidence of DW.1 returned a finding that Ex.A1 was not executed by the defendant in favour of the
.plaintiff. It has also found that no advance consideration was passed under Ex.A1. The first Appellate Court simply adverted to the very s