S.A.No.721 of 2013

THE HIGH COURT OF JUDICATURE AT MADRAS

DATED: 10.08.2023

CORAM:

THE HONOURABLE MR. JUSTICE R.SUBRAMANIAN

S.A.No.721 of 2013

and

M.P.No.1 of 2013

1.M.Palaniyappan (died)

2.M.Muthammal

3.P.Mariammal

4.P.Dharani

5.S.Menaka

6.P.Gowsik

[Sole appellant died, A2 to A6 B/R as LR's of the

deceased sole appellant viz., M.Palaniyappan vide

Court order dated 16.08.2022 made in

CMP. Nos.13462, 13463 & 13566 of 2022 in

SA.No.721 of 2013 (TVTSJ)]

...Appellants

Vs.

Savithri

...Respondent

Prayer: Second Appeal filed under Section 100 of C.P.C., against the

judgment and decree of the learned Subordinate Judge, Namakkal

dated 20.12.2012 made in A.S.No.1 of 2012 reversing the well

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S.A.No.721 of 2013

considered judgment and decree of the Principal District Munsif Court,

Namakkal dated 23.06.2011 made in O.S.No.299 of 2004 (previously

O.S.No.355 of 1998, Sub Court, Namakkal).

For Appellants

: Mr.D.Baskar

For Respondent

: Mr.R.V.Agilas

for Mr.C.Jagadish

J U D G M E N T

The unsuccessful respondent in A.S.No.1 of 2012/plaintiff in

O.S.No.299 of 2004, who lost the suit for specific performance is on

appeal.

2. The brief facts of the case are as follows:-

i) The suit was laid by the appellant herein seeking specific

performance of the sale agreement dated 13.03.1996. According to

the plaintiff, the defendant had agreed to convey the subject property

for a consideration of Rs.45,000/-. An agreement was entered into

between them on 13.03.1996, on which date, a sum of Rs.40,000/-

was paid as advance, leaving a balance of Rs.5,000/-. A period of two

years was fixed for payment of the balance sale consideration and for

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S.A.No.721 of 2013

performance of the contract. According to the plaintiff, since his

demand for execution of the sale deed was not acceeded to, by the

defendant, he sent a legal notice on 20.03.1998 which was served on

the defendant. Since the defendant did not come forward to execute

the sale deed,despite such demand, the plaintiff has lodged the suit on

13.07.1998.

ii) The suit was resisted by the defendant contending that the

agreement was not intended to be acted upon as a sale agreement but

it was only executed as secuity for a loan transaction. According to the

dfendant the very fact that two years period was fixed for payment of

the negligible sum which is just about 10% of the total sale

consideration would by itself demonstrate that the agreement was not

intended to be acted upon as an agreement of sale but only executed

as security for the loan transaction. The possession of the original sale

deed of the suit property by the plaintiff was pointed out as an

indicator to conclude that the suit agreement was not intended to be a

sale agreement.

iii) On the above pleadings, the trial Court framed the

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S.A.No.721 of 2013

following issues:-

“1/ gpujpthjp. thjpaplk; bgw;Wf;bfhz;l

U:/50.000 flDf;fhf brf;a{upl;oahfj;jhd; 13/03/1996?k;

njjpapy;

fpiua

xg;ge;j

gj;jpuk;

vGjpf;bfhLj;Js;shuh>

2/ thjp fpiua xg;ge;j gj;jpuj;jpd;go

fpiuak;

bra;Jbfhs;s

vg;bghGJk;

jahuhf

,Ue;Js;shuh>

3/ thjp tHf;fpy; nfhupa[s;sgo Vw;wij

Mw;Wf gupfhuk; bgw mWfij cilatuh>

4/ ntW vd;d gupfhuk;>”

iv) At trial, the plaintiff examined himself as P.W.1 and scribe

of the agreement/Ex.A1 namely, Mr.Rajan was examined as P.W.2 and

exhibits viz., Ex.A1 to Ex.A4 were marked on the side of the plaintiff.

On the side of the defendant, the defendant's husband was examined

as D.W.1 and one of the attestor to the agreement was examined as

D.W.2 and one Ganesan was examined as D.W.3 to establish the value

of the property. No document was produced on the side of the

defendant.

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S.A.No.721 of 2013

v) The learned District Munsif, Namakkal, who tried the suit,

on considerat