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2014 Supreme(Mad) 2421
High Court of Judicature at Madras
S. VIMALA, J.
Rajamanickkam
Versus
Mandratharasi & Another
Second Appeal No. 1634 of 2000 & CMP. No. 7517 of 2003
Decided on: 12-08-2014
For the Appellant:A.S.K. Sriram, K.V.P. Deepakraj, Advocates.
For the Respondent: P. Dinesh Kumar, Sarvabhauman Associates.
Headnote:
Constitution of India, 1950 - Sale agreement - Whether findings of lower appellate court are vitiated by its failure to consider evidence of P.Ws.1 to 4 corroborated by documentary evidence Exs.A-3 to A-9 and allegation in reply notice A-11 - Permanent injunction - Plaintiff filed a suit for specific performance based upon sale agreement - Suit was decreed directing first defendant to execute sale deed within a period of two months - Aggrieved over that defendants filed an appeal - Said appeal was allowed and thereby decree of trial court came to be set-aside – Hence second appeal by plaintiff - First defendant in order to pay debt incurred towards marriage of her daughter borrowed a sum from plaintiff and as she was not able to repay she executed an agreement to sell suit property - As first defendant did not execute sale deed plaintiff issued a notice for which first defendant gave a reply stating that she had executed a settlement deed in favour of second defendant thereby denying truth and validity of sale agreement - She was also trying to interfere with possession and enjoyment of suit property - Suit for specific performance and injunction was filed – Held, Evidence available on record would go to show that plaintiff could not have advanced under alleged sale agreement - There is contradiction in evidence of P.W.1 with regard to payment and contradiction is between averment made in Ex.A-1 sale agreement and evidence of P.W.1 before Court - In sale agreement it is stated that first defendant had borrowed amount on promissory note and to discharge promissory note plaintiff had paid - While giving evidence P.W.1 has stated that he sold his land and he himself discharged debt borrowed by first defendant - Nobody has been examined to speak about discharge of debt under promissory note - It is clear that alleged sale agreement could not be a true document – Witness P.W.2 has gone to extent of saying that at time when suit property was purchased by first defendant purchase money was paid by plaintiff and document was obtained in name of first defendant thereby implying that title vests with plaintiff and not with first defendant - This evidence brings cat out of bag and would go to show that even at time of purchasing property a plan had been conceived to grab property from first defendant - When this evidence is considered along with evidence of first defendant where she has stated that plaintiff being a court bird having rich experience in conducting cases might have concocted sale agreement easily - In other words contention of first defendant is that plaintiff has purchased litigation towards his plan to purchase property - This contention cannot be easily brushed aside considering overall facts and circumstances and especially plaintiff having manoeuvered to obtain documents in his own name even before getting success in his attempt to get property in his name – Appeal dismissed
1. The plaintiff is the appellant. He is the first defendant's sister's husband. The second defendant is the grandson of the first defendant.
2. The parties are referred to as per the nomenclature assigned to them in the trial court.
3. The plaintiff filed a suit in O.S.No.88 of 1996 for specific performance based upon the sale agreement, dated 11.06.1993. The suit was decreed, directing the first defendant to execute the sale deed within a period of two months. Aggrieved over that, the defendants filed an appeal in A.S.No.15 of 1999. The said appeal was allowed and thereby, the decree of the trial court came to be set-aside. Hence, the second appeal by the plaintiff.
4. The above second appeal has been admitted on the following substantial questions of law:-
“1. Whether the findings of the lower appellate court are vitiated by its failure to consider the evidence of P.Ws.1 to 4 corroborated by documentary evidence Exs.A-3 to A-9 and the allegation in the reply notice, A-11?
2. Whether the findings of the lower appellate court are vitiated by its failure to take into consideration the proved and admitted facts cumulatively and draw the legal inferences thereon?”
Brief facts:-
5. The first defendant, in order to pay the debt incurred towards the marriage of her daughter, borrowed a sum of Rs.36,000/- from the plaintiff and as she was not able to repay, she executed an agreement to sell the suit property (Northern 12½ cents out of 25 cents in R.S.No.52/3 in Kodugur) on 11.06.1993. As the first defendant did not execute the sale deed, the plaintiff issued a notice, for which the first defendant gave a reply stating that she had executed a settlement deed in favour of the second defendant on 26.07.1996, thereby denying the truth and validity of the sale agreement. She was also trying to interfere with the possession and enjoyment of the suit property. Hence, the suit for specific performance and injunction was filed.
6. The written statement filed by the first defendant was adopted by the second defendant and the contentions in the written statement are as follows:-
1. The relationship between the parties is admitted.
2. The first defendant did not execute any sale agreement in favour of the plaintiff; she did not borrow Rs.36,000/- at any point of time; she did not agree to sell the suit property.
3. The plaintiff was assisting the first defendant and when the first defendant constructed a house in the suit property, the plaintiff obtained the signature of the first defendant on the ground that those signatures are required for the purpose of obtaining electricity connection and other facilities; utilising those papers, the sale agreement has been concocted.
4. The plaintiff had been staying in a part of the house; taking advantage of that, the plaintiff has created several documents like, Kist receipts, house tax receipts, etc., and planning to grab the property.
5. After the death of his first wife, the plaintiff married Dhanabakiyam, as his second wife, and to conduct that case, the plaintiff demanded money and the first defendant handed over jewels of her daughter; that was not redeemed by the plaintiff; on account of that, there was enmity between the plaintiff and the first defendant and as an offshoot, the suit agreement has been fabricated.
7. The trial court framed the following issues:-
1. Whether the first defendant executed the sale agreement, dated 11.06.1993?
2. Whether possession was given to the plaintiff based upon the sale agreement and whether plaintiff is in possession and enjoyment of the suit property?
3. Whether the plaintiff is entitled to the suit for specific performance?
4. Whether the plaintiff is entitled to permanent injunction?
5. To what other reliefs, the parties are entitled to?
8. The trial court relied upon the evidence of P.Ws.1 to 3 and decreed the suit. Relying upon Exs.A-2 to A-9, it was held that the plaintiff was in possession and enjoyment of the suit property and therefore, the plaintiff is also en
