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Shanmugavel Nadar (Died) and Another Vs. Kalayana Devadasan and Others - Court Judgment

LegalCrystal Citation
CourtChennai Madurai High Court
Decided On
Case NumberS.A. No. 1525 of 2002 & C.M.P. No. 13608 of 2002
Judge
AppellantShanmugavel Nadar (Died) and Another
RespondentKalayana Devadasan and Others
Excerpt:
.....filed written statement and denied all the averments made by the plaintiff and stated that the suit property is the ancestral property. the plaintiff agreed to purchase the property at rs.2,500/- per cent, after clearing the trees and bushes and obtained his signature in blank rs.2.50 stamp paper. contrary to the said offer, after obtaining signature, the plaintiff has created a document as though the first defendant agreed to sell the entire 24 cents for a total sale consideration of rs.2,500/-. the first defendant did not execute any agreement of sale and also made endorsements in the agreement of sale. the first defendant came to know about the agreement of sale only when the plaintiff was informing to the villagers that he purchased the property for rs.2,500/- from the first.....
Judgment:

(Prayer:Second Appeal is filed under Section 100 of Civil Procedure Code, against the judgment and decree dated 12.07.2002 made in A.S.No.12 of 1999 on the file of the Sub-Court, Ambasamudram, confirming the Judgment and decree dated 21.12.1998, made in O.S.No.535 of 1992 on the file of the District Munsif Court, Ambasamudram.)

1. This Second Appeal has been filed against the judgment and decree dated 12.07.2002 made in A.S.No.12 of 1999 on the file of the Sub-Court, Ambasamudram, confirming the Judgment and decree dated 21.12.1998, made in O.S.No.535 of 1992 on the file of the District Munsif Court, Ambasamudram.

2. The first defendant, who lost in the Courts below, is the appellant. The first respondent is the plaintiff. He filed the suit in O.S.No.535 of 1992, for specific performance. The respondents 2 and 3 are the daughters and wife of the first defendant. Pending appeal, the appellant/first defendant and the third respondent died. By order dated 16.03.2016, the second respondent, daughter of the first appellant, was transposed as second appellant.

3. For convenience, the parties are referred to as per their rank in the suit in O.S.No.535 of 1992.

4. Facts of the case:

(i) The first defendant agreed to sell the suit schedule property to the plaintiff for a total sale consideration of Rs.2,500/- and received a sum of Rs.1,000/- on 10.03.1989 and executed an agreement of sale and the first defendant handed over possession of the property to the plaintiff on the same day itself. The plaintiff has to pay the balance sale consideration within one month and get the sale deed executed in his favour. The plaintiff paid a sum of Rs.500/- on 29.03.1989 and another sum of Rs.500/- on 01.06.1989 and accepting the said sums, the first defendant made two endorsements in the agreement of sale, dated 10.03.1989. The plaintiff paid a further sum of Rs.200/- on 01.09.1989 to the first defendant. The first defendant did not make any endorsement after receipt of the said amount. The plaintiff was always ready and willing to pay the balance sum of Rs.300/- and get the sale deed executed in his favour. The first defendant was evading execution of sale deed. The plaintiff sent two notices, dated 28.02.1992 and 23.04.1992 to the first defendant. Intimation of said notices were given to the first defendant, but he did not receive the said notices. The said notices were returned with an endorsement as not claimed''. Under the circumstances, the plaintiff filed the suit for specific performance of the agreement of sale, dated 10.03.1989.

(ii) The first defendant filed written statement and denied all the averments made by the plaintiff and stated that the suit property is the ancestral property. The plaintiff agreed to purchase the property at Rs.2,500/- per cent, after clearing the trees and bushes and obtained his signature in blank Rs.2.50 stamp paper. Contrary to the said offer, after obtaining signature, the plaintiff has created a document as though the first defendant agreed to sell the entire 24 cents for a total sale consideration of Rs.2,500/-. The first defendant did not execute any agreement of sale and also made endorsements in the agreement of sale. The first defendant came to know about the agreement of sale only when the plaintiff was informing to the Villagers that he purchased the property for Rs.2,500/- from the first defendant. The property in question is ancestral property. The daughter and wife of the first defendant have share in the property. His daughter got married on 18.11.1990 and therefore, his daughter as per Act 1 of 1990 has a share in the suit property, which is ancestral property. The first defendant, his daughter and his wife partitioned the suit property by oral partition and the same has been reduced into writing and endorsed by all the parties on 01.01.1982 and specific portions were allotted to them. The suit is bad for non-joinder of necessary parties.

(iii) The suit property was leased out to one Aathi Narayanan for three years and the said lease expired on 25.12.1992. After expiry of lease, the plaintiff unauthorisedly occupied the property by trespassing into the same.The first defendant further stated that he did not receive Rs.200/- on 01.09.1989 as alleged by the plaintiff. No intimation with regard to notices were given to the first defendant and he did not refuse to receive the same. He sent notice dated 12.09.1992 through his Advocate to the plaintiff.

(iv) The first defendant in the additional written statement reiterated the averments mentioned in the written statement and stated that he did not receive Rs.200/- on 01.09.1989 from the first defendant and therefore, the suit is barred by limitation as per Article 54 of the Limitation Act.

(v) The plaintiff impleaded the daughter and wife of the first defendant as defendants 2 and 3. The defendants 2 and 3 filed written statement making similar averments as that of the first defendant.

5. The learned Additional District Munsif, Ambasamudram, framed necessary issues and additional issues.

6. Before the Trial Court, the plaintiff examined himself as P.W.1 and marked 10 documents as Exs.A.1 to A.10. On behalf of the defendants, the first defendant examined himself as D.W.1 and six documents were marked as Exs.B.1 to B.6.

7. The learned Additional District Munsif, Ambasamudram, considering the pleadings, oral and documentary evidence and arguments of the learned counsel appearing for the parties, decreed the suit. The learned Additional District Munsif rejected the contention of the plaintiff that he paid a sum of Rs.200 to the first defendant on 01.09.1989, but the first defendant did not make any endorsement. The learned Additional District Munsif held that the plaintiff will be entitled to specific performance of agreement of sale dated 10.03.1989 on condition to deposit Rs.500/- within one month from the date of decree.

8. Against the said judgment and decree, dated 21.12.1998, made in O.S.No.535 of 1992, the first defendant filed an appeal in A.S.No.12 of 1999 before the Subordinate Court, Ambasamudram.

9. The first defendant alleged that the learned Additional District Munsif having held that the property is ancestral property, ought to have held that the agreement of sale is not valid and dismissed the suit. The learned Additional District Munsif failed to see that the suit is barred by limitation. The first defendant did not refuse to receive the notices, but they were returned with an endorsement as not claimed . The learned Additional District Munsif erred in casting the burden of proof on the first defendant to prove that the signature in the agreement of sale Exs.A.1 to A.3 is not his signature. The learned Additional District Munsif failed to see that the plaintiff unauthorisedly occupied the suit property and the first defendant has taken criminal action against the plaintiff and gave evidence in this regard. The learned Additional District Munsif failed to consider the said evidence. The reasoning of the learned Additional District Munsif for rejecting the claim of the second defendant that she has title in the suit property, as per Act 1 of 1990, is erroneous.

10. The defendants 2 and 3 filed cross appeal on the file of Subordinate Court, Ambasamudram, and made the same averments as that of the first defendant.

11. The learned Subordinate Judge, Ambasamudram, framed necessary points for consideration.

12. The learned Subordinate Judge, Ambasamudram, after considering the pleadings, oral and documentary evidence, the judgment of the Trial Court, grounds of appeal and arguments of the learned counsel appearing for the parties, dismissed the first appeal and cross appeal, confirming the judgment and decree of the learned Additional District Munsif, Ambasamudram.

13. Against the concurrent findings of the Courts below, the first defendant has filed the present second appeal.

14. At the time of admitting the second appeal, this Court framed the following substantial questions of law:

(1) Whether both the Courts below failed to consider the legal point that the suit is barred by limitation?

(2) Whether both the Courts below erred in holding that the alleged endorsement in Exs.A7, A8 and A9, the appellant had refused to receive the notice?

(3) Whether both the Courts below erred in holding that by such endorsement the suit is not barred by limitation?

(4) Whether both the Courts below failed to note that Ex.A3 was not proved by the first respondent?

(5) Whether both the Courts below failed to note that there had been material alteration in Exs.A1 and A.3 without the consent and knowledge of the appellants and hence the said documents ought to have been rejected?

(6) Whether both the Courts below failed to note that the appellant has no right to execute Ex.A1 since the suit property is ancestral property and since respondents 2 and 3 in particular the second respondent has got right over the suit property?

(7) Whether both the Courts below failed to note that the appellant had not executed Exs.A1 to A3?

15. The learned counsel for the second defendant/appellant contended that;

(a) the suit is barred by limitation;

(b) the first defendant did not refuse to receive the alleged notices sent to him;

(c) the plaintiff failed to prove the endorsements made in the cover of the notices, by not examining the concerned Postmaster;

(d) the plaintiff failed to prove Exs.A.1 to A.3 by examining independent witnesses;

(e) the Courts below erred in accepting the interested evidence of the plaintiff. The Courts below erred in casting the burden of proof on the first defendant with regard to Exs.A.1 to A.3 and failed to see there are alterations in Ex.A.1 and the extent of land was inserted in Pencil, while Ex.A.1 was written in Ink. The plaintiff failed to examine the scribe of Ex.A.1 and there is overwriting in Ex.A.3;

(f) the Courts below having held that the property is ancestral property, ought to have held that the first defendant is not having exclusive right in the suit property. The Trial Court erred in rejecting of marking of partition document among the defendants. The Courts below failed to note that the plaintiff did not take any steps to send the disputed document to Forensic expert opinion to prove the signature in Exs.A.1 to A.3 as that of the first defendant; and

(g) the Courts below failed to see that Ex.A.1 Agreement of Sale is an unilateral agreement and therefore, the same could not be enforced. In any agreement of sale, there must be two parties and both must sign the agreement of sale.

16. The learned counsel for the appellant relied on the following judgments of this Court, in support of his contention.

(i) R.Chinnadurai Vs. S.Rajalakshmi [2004 (4) LW 186]

(ii) Pushpa Bai Vs. Dr.Williams and others [2001 (3) MLJ 52]

17. Per contra, the learned counsel for the first respondent/ plaintiff contended that the first defendant had admitted his signature in Ex.A.1. According to the first defendant, he signed stamp paper in blank and the plaintiff filled the same. The first defendant put the plaintiff in possession of the suit property. Therefore, the contention of the first defendant that he signed only in blank stamp paper cannot be accepted. Before filing of the suit by the plaintiff, the first defendant did not deny the execution of agreement of sale and did not take any steps for taking possession from the plaintiff. Only after filing of the suit, the first defendant sent the notice denying the averments made by the plaintiff. The first defendant has not disputed that notices were sent to his address only. Intimation was given to the first defendant on two occasions by authorities, but he did not claim notices. After the sale agreement, the plaintiff made three payments and the first defendant made endorsement with regard to the first two payments and did not make any endorsement with regard to third payment. In the two endorsements made by the first defendant, no time limit was mentioned for completion of sale transaction. Therefore, the suit is not barred by limitation. Even if the suit property is ancestral property, the third defendant - wife of the first defendant has no right to claim share in the suit property. As far as the second defendant is concerned, before Act 1 of 1990 came into force, the first defendant agreed to sell the suit property to the plaintiff on 10.03.1989. Therefore, the second defendant cannot claim any right in the suit property and cannot contend that the agreement of sale is invalid. The first respondent can sell the ancestral property for the benefit of all the members of the family. Further, the contention of the defendants that the suit property was partitioned among themselves and leased out to one Aathi Narayanan is unbelievable, as there is no partition in respect of rest of the property and no document was filed to prove the same. The learned counsel for the plaintiff contended that the first defendant did not plead that there is material alteration in Exs.A1 and A3. Without any pleadings, the second defendant is not entitled to raise this issue at this stage.

18. The learned counsel for the first respondent/plaintiff further contended that the contention of the learned counsel for the second appellant/second defendant that Ex.A.1 Agreement of sale is unilateral agreement and cannot be enforced, has no merits. Even, the oral agreement of sale, can be enforced. For this proposition, he relied on the following judgments.

(i) 1998 (3) LW 189 [Lakshmi Ammal (Died) and 6 others Vs. J.Victor and 3 others]

(ii) AIR 2004 Andhra Pradesh 299 [Mohd. Abdul Hakeem (D) by L.Rs., Vs. Naiyaz Ahmed and others]

(iii) 2016 SAR (Civil) 920 [Madina Begum and another Vs. Shiv Murti Prasad Pandey and others]

(iv) Unreported decision of Allahabad High Court in Hari Narayan Vs. Awadh Narayan Singh [S.A.No.923 of 2015, dated 08.12.2015].

19. The learned counsel for the first respondent/plaintiff also contended that the suit is not barred by limitation, since as per endorsements Exs.A.2 and A.3 made by the first defendant in Ex.A.1, no time limit is fixed for completion of agreement of sale. In the circumstances, time for initiatinglegal proceedings starts from the date, the first defendant refused to execute the sale deed. In the present case, the plaintiff sent two notices Exs.A7 and A.8, dated 28.02.1992 and 28.04.1992 calling upon the first respondent to receive balance sale consideration and execute the sale deed. The notices were sent to correct address of the first respondent. Intimations were sent to the first respondent by postal authorities about notices, but he did not receive the same and it amounts to refusal by the first defendant. Further, the first defendant sent notice, dated 12.09.1992 Ex.B.5 through his Advocate denying agreement of sale itself. Therefore, the suit is not barred by limitation, since the same was filed within three years from the refusal by the first defendant and prayed for dismissal of the second appeal.

20. I have carefully perused all the materials available on record and the judgment and decree of the Courts below and considered the arguments advanced by the learned counsel appearing for the parties.

21. The case of the first defendant is that he did not execute Exs.A.1 to A.3. From the material on record and oral evidence, the Courts below have come to the conclusion that the first defendant had executed Ex.A.1 Agreement of Sale and made endorsements Exs.A.2 and A.3. The first defendant admitted that he had put his signature in a blank stamp paper and the plaintiff fabricated Ex.A.1. This contention is untenable in view of the fact that the first defendant agreed to sell the suit property to the plaintiff and signed Ex.A.1. According to the first defendant, the plaintiff agreed to purchase the property at Rs.2,500/- per cent, but he has fabricated Ex.A.1 stating that the first defendant agreed to sell entire 24 cents for Rs.2,500/-. The Courts below have considered this contention and rejected the same as the first defendant failed to prove that the value of the property agreed to be sold is Rs.2,500/- per cent.

22. On the other hand, the sale deed has been produced to show that the value of the property agreed to be sold is Rs.2,500/- for 24 cents. The lower appellate Court has considered this aspect in proper perspective and rejected the contention of the first defendant that the value of the property is Rs.2,500/- per cent.

23. As far as the allegation of material alteration is concerned, the first defendant has not raised this plea in the written statement. There is nothing on record to show that this plea was raised before the Courts below. Therefore, the contention of the learned counsel for the appellant/second defendant cannot be accepted at this stage. The contention of the learned counsel for the second defendant/appellant that the agreement of sale is unenforceable as it is an unilateral agreement, is untenable. It is well settled even an oral agreement can also be enforced. The judgements relied on by the learned counsel for the plaintiff are squarely applicable to the facts of the case. In view of the said judgments, the judgements relied on by the learned counsel for the second defendant do not advance the case of the appellant.

24. The defendants contended that the suit property is ancestral property and therefore, the first defendant is not absolute owner and agreement of sale is invalid and there was oral partition with regard to suit property and property was not handed over to the plaintiff and it was leased out to one Aathi Narayanan. After expiry of lease, the plaintiff trespassed into the suit property. The defendants have not produced any evidence to substantiate these claims. The defendants have not taken any steps to take possession from the plaintiff, even though according to them, the plaintiff trespassed into the land and unauthorisedly in occupation. For the above reason, the substantial questions of law are answered against the appellants and the second appeal is dismissed, confirming the judgment and decree of the Courts below. No costs. Consequently, connected C.M.P.No.13608 of 2002 is closed.


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