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2011 Supreme(Mad) 988
High Court of Judicature at Madras
G. RAJASURIA
Kumar
Versus
Balaraman & Others
S.A.No.49 of 2011
Decided on : 28-02-2011
For the Appellant:N. Suresh, Advocate.
For the Respondents:R1 to R6 - M.V. Muralidharan, R7 - B. Gopalakrishnan, Advocates.
The burden of proof lies with the plaintiff to prove the signing of the agreement to sell by the defendant. Even if the agreement is genuine, the plaintiff may only be entitled to a refund of the amount paid.
Headnote:
Specific Performance - Agreement to Sell - Indian Stamp Act, 1899, Section 54 - Thiruvengada Pillai vs. Navaneetham Ammal and another, 2008(4) SCC 513 - Sunil Kumar and another vs. Ram Parkash and others - Kapil Corepacks Private Limited and others vs. Harbans Lal (since deceased) through LRs. - AIR 1988 SC 576 - Hero Vinoth (Minor) vs. Seshammal - 2008(4) SCALE 300 - State Bank of India & Others vs. S.N.Goyal - (2011) 1 SCC 673 [Vijay Kumar Talwar v. Commissioner of Income Tax, Delhi] - [Indian Stamp Act, 1899, Section 35] - [Indian Evidence Act, Section 73] - Specific Relief Act,1963, Section 12
Fact of the Case:
The plaintiff filed a suit seeking specific performance of an agreement to sell a property. The trial court and the first appellate court dismissed the suit. The plaintiff filed a second appeal challenging the judgments and decrees of both courts, arguing that they failed to consider crucial evidence and erred in their interpretation of the law.
Finding of the Court:
The court found that the plaintiff did not discharge the burden of proof to prove that the agreement to sell was signed by the defendant. It also held that both courts erred in not considering the depositions of witnesses and other documents filed by the plaintiff. Even if the agreement was found to be genuine, the plaintiff was only entitled to a refund of the amount paid.
Issues: 1. Burden of proof regarding the signing of the agreement to sell by the defendant. 2. Failure of the courts to consider crucial evidence. 3. Entitlement of the plaintiff to specific performance of the agreement.
Ratio Decidendi: The plaintiff failed to prove that the defendant signed the agreement to sell. The courts erred in not considering crucial evidence. Even if the agreement was genuine, the plaintiff was only entitled to a refund of the amount paid.
Final Decision: The matter was remanded back to the first appellate court for obtaining a handwriting expert's opinion on the agreement to sell. The first appellate court was directed to consider the expert opinion, objections from both sides, and the depositions of witnesses, and then decide the matter. The second appeal was disposed of with no order as to costs.
1. This second appeal is focussed by the plaintiff, animadverting upon the judgement and decree dated 17.08.2010 passed by the learned II Additional Subordinate Judge, Villupuram in A.S.No.79 of 2009 confirming the judgment and decree dated 29.07.2009 passed by the learned Principal District Munsif, Villupuram in O.S.No.169 of 2006.
2. The parties are referred to here under according to their litigative status and ranking before the trial Court.
3. The recapitulation and resume of the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus:
a] The plaintiff filed the suit seeking the following reliefs: “"for specific performance, directing the defendants to execute and register a sale deed in favour of plaintiff in respect of the suit property and on their failure to be done by this Hon'ble Court. to grant permanent injunction restraining the defendants, their men and agents or servants from interfering with the plaintiff's peaceful possession and enjoyment over the suit property. Or in the alternative to direct the defendants to pay a sum of Rs.90,000/- as damages to the plaintiff with subsequent interest at the rate of 12% per annum till realization and to grant such other reliefs as this Hon'ble court may deem fit."”
(extracted as such)
b] Written statement was filed by D1, which was adapted by D2 to D6. D7, being the purchaser of the suit property, filed a separate written statement.
c] Whereupon issues were framed. On the side of the plaintiff, he examined himself as P.W.1 and Exs.A1 to A61 were marked. The first defendant/Balaraman examined himself as D.W.1 along with D.W2 Sankar (D7) and marked Exs.B1 to B4..
d] Ultimately the trial court dismissed the suit, as against which, appeal was filed by the plaintiff for nothing but to be dismissed by the appellate court confirming the judgment and decree of the trial court.
4. Challenging and impugning the judgments and decrees of both the courts below, this Second Appeal has been filed by the plaintiff on various grounds inter alia to the effect that, “both the courts below failed to consider the deposition of P.W2 the witness to Ex.A6-the agreement to sell and P.W3, the scribe of it. Based on extraneous matters, both the courts below held that Ex.A6 was not a believable document. Without considering as to whether the signature of D1 is forged one or not, the first appellate court erroneously referred to Section 54 of the Indian Stamp Act and decided the case. The courts below were wrong in holding that Ex.A6 will not bind defendants 2 to 6 the children of D1 even though D1 signed the agreement. The other Exhibits marked viz., Ex.A1 to A5 and A7 to A46 were not at all considered by both the courts below.” As such, the following substantial questions of law are found suggested in the memorandum of second appeal.
a. Whether the courts below have erred in holding that Ex.A6 is not valid merely because it is executed in an old stamp paper when there is no bar under Section 54 of the Indian Stamp Act for execution of such a document?
b. Whether the courts below have failed to follow the decision of the Hon'ble Supreme Court in Thiruvengada Pillai vs. Navaneetham Ammal and another, 2008(4) SCC 513, wherein the Hon'ble Supreme Court has laid down that there is no impediment for using the old stamp papers for an agreement to sell?
c. Whether the courts below are right in holding that Ex.A6 will not be binding on defendants 2 to 6, the sons of 1st defendant, when the first defendant has executed the same in favour of the plaintiff and when the defendants had failed to prove that there was partition in the family?
d. Whether the courts below are right to dismiss the suit filed by the plaintiff without considering the Exs.A1 to A5 and A7 to A46, which would show that the plaintiff is in possession and enjoyment of the property?
e. Whether the courts below have concurrently erred in not appreciating the oral documentary evidence properly
