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Ponnammal and Another Vs. Perumal and Another - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberAppeal Suit No. 344 of 2016
Judge
AppellantPonnammal and Another
RespondentPerumal and Another
Excerpt:
.....the file of the trial court praying to pass a decree of specific performance in pursuance of the sale agreement dated 12-01-2008 and also for the relief of perpetual injunction wherein the present appellants have been arrayed as defendants. 3. the epitome of the plaint may be stated like thus: the suit properties are originally belonged to one perumal and he purchased the same by virtue of several sale deeds and he passed away on 20-12-1995. the first defendant is his wife and second defendant is his son. after his demise, a family partition has taken place by virtue of a registered partition deed ,dated 26-05-2004. in the said partition, the suit properties have been allotted jointly in favour of the defendants 1 and 2 and five daughters of the said perumal. after partition, the.....
Judgment:

(Prayer: Appeal suit filed under Section 41, Rule 1 of CPC read with Order 15 Rule 96 of CPC to set aside the judgment and decree, dated 29-01-2016, passed in O.S.No.111 of 2011 on the file of the IV Additional District Judge,Ponneri.)

A. Selvam,J.

1. This appeal suit has been directed against the judgment and decree dated 29-01-2006 passed in O.S.No.111 of 2011 by the IV Additional District Court, Ponneri.

2. The respondent herein as plaintiff has instituted O.S.No.111 of 2011 on the file of the Trial Court praying to pass a decree of specific performance in pursuance of the sale agreement dated 12-01-2008 and also for the relief of perpetual injunction wherein the present appellants have been arrayed as defendants.

3. The epitome of the plaint may be stated like thus:

The suit properties are originally belonged to one Perumal and he purchased the same by virtue of several sale deeds and he passed away on 20-12-1995. The first defendant is his wife and second defendant is his son. After his demise, a family partition has taken place by virtue of a registered partition deed ,dated 26-05-2004. In the said partition, the suit properties have been allotted jointly in favour of the defendants 1 and 2 and five daughters of the said Perumal. After partition, the second defendant and five daughters of Perumal have settled their shares in the suit properties in favour of the first defendant by virtue of a settlement deed dated 12-07-2004. The plaintiff has been doing real estate business and he evinced interest in purchasing the suit properties. The plaintiff has approached the defendants and expressed his willingness to purchase the suit property at the rate of Rs.4000/- per cent of land and total sale consideration comes to Rs.21,48,000/-(Rupees Twenty One lakhs forty eight thousand only). The defendants have also expressed their willingness to sell the suit properties in favour of the plaintiff. On the basis of mutual agreement, the plaintiff has paid a sum of Rs.10,00,000/-(Rupees Ten lakhs only) and subsequently, the plaintiff has paid a sum of Rs.2,00,000/-(Rupees Two lakhs only). Further, it is agreed that the defendants would execute a sale agreement only in respect of Rs.17,00,000/-(Rupees Seventeen lakhs only). On 12-11-2008, the defendants have executed a sale agreement in favour of the plaintiff. The plaintiff has also paid a sum of Rs.5,00,000/-. During February 2011, the plaintiff has decided to enclose the entire suit properties by way of erecting posts. The plaintiff has also received advance from 10 to 20 persons. The plaintiff has always shown his readiness and willingness to perform his part of the contract. But the defendants have evaded in executing sale deed in favour of the plaintiff. During first week of October 2011, the defendants have tried to trespass into the suit property. On 04-10-2011, the plaintiff has gone to the house of the defendants and offered the balance of sale consideration. But the defendants have failed to receive the same. Under the said circumstances, the present suit has been instituted for the reliefs sought therein.

4. In the written statement filed on the side of the defendants it is averred that the plaintiff has conveniently suppressed the real facts. In fact, the defendants have borrowed a sum of Rs.1,00,000/-(Rupees One lakh only) from the plaintiff in the month of July 2006. At the time of giving loan, the plaintiff has obtained the signatures of the defendants on various blank papers. The defendants have approached the plaintiff for repaying the said loan of Rs.1,00,000/-(Rupees One lakh only). But the plaintiff has refused to handover the documents which have been received by him from the defendants. The plaintiff has filed the present suit with ulterior motive and there is no merit in the suit and the same deserves to be dismissed.

5. On the basis of the rival pleadings raised on either side and after analysing both the oral and documentary evidence, the Trial Court has decreed the suit as prayed for. Against the judgment and decree passed by the Trial Court, the present appeal suit has been preferred at the instance of the defendants as appellants.

6. The consistent case of the plaintiff is that the suit properties are the absolute properties of one Perumal who is none other than the husband of the first defendant and father of the second defendant and he purchased the same under various sale deeds and he passed away on 20-12-1995. After his demise, a partition taken place wherein the suit property have been allotted to the share of the defendants and five daughters of the said Perumal by way of a registered partition deed dated 26-05-2005 and thereafter, by virtue of a settlement deed dated 12-07-2004, the second defendant and five daughters of Perumal have given their shares in the suit properties in favour of the first defendant. The plaintiff has expressed his desire to purchase the suit properties at the rate of Rs.4000/- per cent of land. The defendants have also expressed their willingness to sell the same. On the basis of their mutual agreement, the defendants have received a sum of Rs.12,00,000/-(Rupees Twelve lakhs only) and on 12-11-2008, an agreement of sale has come into existence and another sum of Rs.5,00,000/-(Rupees Five lakhs only) has been given to the defendants and in aggregation, the defendants have received a sum of Rs.17,00,000/-(Rupees Seventeen lakhs only). The balance of sale consideration is only Rs.4,48,000/-(Rupees Four lakhs Forty Eight thousand only) and despite all repeated demands and attempts made by the plaintiff, the defendants have refused to execute a sale deed in favour of the plaintiff. The plaintiff has always been ready and willing to perform his part of the contract. Further, during October 2011, the defendants have made an attempt to trespass into the suit properties. Under the said circumstances, the present suit has been instituted for the reliefs sought therein.

7. The defence put forth on the side of the defendants is that during July 2006, the defendants have borrowed a sum of Rs.1,00,000/-(Rupees One lakh only) from the plaintiff and at the time of giving loan, the plaintiff obtained the signatures of the defendants on various blank papers and subsequently, the defendants have attempted to repay the loan. But the plaintiff has refused to handover the documents received at the time of advancement of loan and therefore, the present suit has been filed with a sinister motive. Under the said circumstances, the plaintiff is not entitled to get the discretionary relief of specific performance.

8. As pointed out earlier, the Trial Court after poring the available evidence on record, has decreed the suit as prayed for.

9. The learned counsel appearing for the appellants/defendants has raised the following points so as to supplant the judgment and decree passed by the Trial Court.

(i) The suit sale agreement has been marked as Ex-A16 and the same is nothing but a concoction.

(ii) Since Ex-A16 is an agreement of sale as per Section 49 of the Indian Registration Act, 1908 (16 of 1908), the same should be registered.

(iii) The suit sale agreement has come into existence on 12-11-2008. But the present suit has been instituted in the year 2011 and therefore, the present suit is barred by limitation.

10. The learned Senior Counsel appearing for the respondent/plaintiff has laconically contended that prior to sale agreement dated 12-11-2008, a receipt has been executed by the second defendant on 06-09-2006 in favour of the plaintiff for a sum of Rs.12,00,000/-(Rupees Twelve lakhs only) and on 12-11-2008, the suit sale agreement has come into existence wherein the first defendant has put her thumb impression and second defendant has put his signature. Even in the written statement filed by them, they have not made any specific denial in respect of the signature as well as thumb impression found in the receipt dated 06-09-2006 and 12-11-2008 and for the purpose of proving the genuineness of those documents, replete evidence is available on the side of the respondent/plaintiff and further, as per amendment made to Section 49 of the Registration Act, 1908(16 of 1908), the suit sale agreement need not be registered. In the suit sale agreement, the period of execution of a registered sale deed is fixed as 36 months and within that period, the suit has been instituted and therefore, the same is not barred by limitation. The Trial Court after considering the overall evidence available on record has rightly decreed the suit as prayed for. Therefore, the judgment and decree passed by the Trial Court need not be set aside.

11. On the basis of the divergent contentions raised on either side, the Court has to look into as to whether the defendants have agreed to sell the suit properties in favour of the plaintiff and in pursuance of their agreement, they executed the suit sale agreement dated 12-11-2008.

12. The receipt dated 06-09-2006 has been marked as Ex-A15 and the suit sale agreement has been marked as Ex-A16. In Ex-A15, the signature of the second defendant is found place. In Ex-A16, the thumb impression of the first defendant as well as signature of the second defendant are found place. In fact, this Court has completely analysed the written statement filed on the side of the defendants and ultimately found that no specific denial has been made on the side of the defendants with regard to signatures as well as thumb impression found in Exs-A15 and A16.

13. The only defence taken on the side of the defendants is that during July 2006, the defendants have borrowed a sum of Rs.1 lakh(Rupees One lakh only)from the plaintiff and at the time of advancing loan, the plaintiff has obtained signatures of the defendants on various blank papers and the same have been utilised for the purpose of creating Exs-A15 and A16.

14. At this juncture it would be more useful to look into the date mentioned in the stamp papers used for writing Exs-A15 and A16 wherein it has been clearly mentioned that the stamp papers have been purchased on 30-08-2006. If really, during July 2006, the defendants have received a sum of Rs.1,00,000/-(Rupees One lakh only) from the plaintiff, definitely, the stamp papers would have been purchased prior to July 2006. But, as pointed out earlier, the stamp papers have been purchased on 30-08-2006 and that itself would go to show that Exs-A15 and A16 have been executed by the defendants.

15. In the written statement filed on the side of the defendants, it is averred that the defendants have approached the plaintiff to repay loan amount of Rs.1,00,000/-(Rupees One lakh only) borrowed by them. But the plaintiff has refused to return all the document as well as blank stamp papers. In fact, in the written statement, no specific date has been mentioned. If really such occurrence has taken place and the plaintiff has refused to handover all the documents as well as blank stamp papers, definitely the defendants would have taken some steps. But, in the instant case, no steps have been taken on the side of the defendants. Therefore, it is quite clear that the defence put forth on the side of the defendants with regard to Exs-A15 and A16 is of no use.

16. The first and foremost contention put forth on the side of the appellants/defendants is that the suit sale agreement is nothing but concoction. As pointed out earlier, the said sale agreement has been marked as Ex-A16. It has already been discussed and decided that both Exs-A15 and A16 are genuine documents and the averments made in the written statement are not at all sufficient for coming to a conclusion that both the documents are nothing but concoction. Under the said circumstances, the first and foremost point urged on the side of the appellants/defendants is sans merit.

17. The second contention put forth on the side of the appellants/defendants is that since Ex-A16 is an agreement of sale and as per Section 49 of the Registration Act, 1908(16 of 1908), the same has to be registered and since the same has not been registered it cannot be looked into.

18. For analysing the said legal position, the Court has to look into Section 49 of the said Act and the same reads as follows:

49. Effect of non-registration of documents required to be registered. No document required by section 17 1[or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall

(a) affect any immovable property comprised therein, or (b) confer any power to adopt, or

(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:1[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877)2, 3[***] or as evidence of any collateral transaction not required to be effected by registered instrument.]

A mere reading of the said Section would clearly reveal that in a suit for specific performance, an unregistered agreement of sale can be received as evidence. Further, Section 53-A of Transfer of Property Act, 1882 found previously has been omitted by Act 48 of 2001 under Section 6 with effect from 24-09-2001. Now the present legal propositions are:

(i) An unregistered sale agreement can be received as evidence in a suit for specific performance instituted under Chapter II of Specific Relief Act, 1963;

(ii) Section 53-A of Transfer of Property Act, 1882 found in the previous Section has been omitted with effect from 24-09-2001.

19. In the instant case, in Ex-A16, it has been clearly mentioned that possession of the suit properties has been given to the plaintiff. Only on that basis, the learned counsel appearing for the appellants/defendants has advanced his argument to the effect that Ex-A16 has to be registered.

20. It has already been pointed out prior to amendment dated 24-09-2001 in a suit for part performance filed under Section 53-A of the Transfer of Property Act, 1882, the suit sale agreement has to be registered but after amendment to previous Section, the same has been omitted. Further, the suit for specific performance can be instituted only under Chapter II of Specific Performance Act, 1963 and if a suit for specific performance is instituted under the said Chapter, an unregistered sale agreement can be received as evidence and there is no legal impediment and therefore, the second contention put forth on the side of the appellants/defendants is not legally correct.

21. The third contention put forth on the side of the appellants/defendants is that since Ex-A16, has come into existence on 12-11-2008, and the suit has been instituted only in the year 2011, the same is barred by limitation.

22. In Ex-A16, the period for executing the registered sale deed is fixed as 36 months. Ex-A16 has come into existence on 12-11-2008. Therefore, a suit can be instituted on or before 12-11-2011. But the present suit has been instituted on 12-10-2011. Therefore, it is needless to say that the present suit has been instituted well within the period of limitation.

23. The learned counsel appearing for the appellants/defendants has relied upon the decision reported in AIR 2015 SC 3389 (K. Nanjappa Vs. R.A. Hameed alias Ameersab). In paragraph No.28 of the said judgment, the Honourable Supreme Court has observed as follows:

28. In the instant case while deciding the issue as to whether the agreement of 1967, allegedly executed by the defendants, can be enforced, the Court had to consider various discrepancies and series of legal proceedings before the agreement alleged to have been executed. In the agreement dated 2.9.1967, there is reference of earlier agreement dated 29.11.1965 where under Rs. 18,000/- was paid to the defendant-appellant which was denied and disputed. Curiously enough that agreement dated 29.11.1965 was neither filed nor exhibited to substantiate the case of the plaintiff. The High Court put reliance on the agreement dated 2.9.1967 written in a quarter sheet of paper merely because of the fact that said quarter sheet of paper was produced before the Magistrate in a criminal proceeding. In our view, the High Court is not correct in holding that there is no reason to disbelieve the execution of the document although it was executed on a quarter sheet of paper and not on a proper stamp and also written in a small letter. The High Court also misdirected itself in law in holding that there was no need of the plaintiff to have sought for the opinion of an expert regarding the execution of the document.

In fact, this Court has perused the entire decision and ultimately found that the agreement of sale in question has not been proved. Under the said circumstances, the Honourable Supreme Court has held as mentioned supra.

24. In the instant case, it has already been pointed out that no specific denial has been made in respect of the signatures as well as thumb impression of the defendants found in Exs-A15 and A16 in the written statement. Further, there is no acceptable evidence on the side of the defendants for the purpose of proving the alleged attempt to discharge the loan alleged to have been received by them from the plaintiff.

25. On the side of the plaintiff, the plaintiff has been examined as P.W.1 and in fact, he has given clinching/trustworthy evidence for the purpose of proving the genuineness of Exs-A15 and A16. Under the said circumstances, the Court can very well come to a conclusion that the plaintiff has clearly established Exs-A15 and A16. Further, the plaintiff has proved his readiness and willingness to perform his part of the contract from the inception of Ex-A16. Therefore, viewing from any angle, there is no contra-evidence on the side of the appellants/defendants for rejecting the case of the respondent/plaintiff. Under the said circumstances, the decision reported earlier is not at all applicable to the facts and circumstances of this case.

26. It has already been pointed out that in the written statement filed on the side of the appellants/defendants it has been simply averred to the effect that during July 2006, the defendants have received a sum of Rs.1,00,000/-(Rupees One lakh only) by way of loan from the plaintiff and at the time of advancing loan, he received signatures of the defendants on blank papers as well as on stamp papers and the defendants have also handed over certain documents. Further, in the written statement, it has been simply averred that they attempted to discharge their loan but the plaintiff has refused to hand over documents as well as blank papers. But for proving the same, absolutely there is no evidence and further, in the written statement, no specific denial has been made with regard to the averments made in the plaint.

27. The learned Senior Counsel appearing for the respondent/plaintiff has befittingly drawn the attention of this Court to the decision reported in 2013(2) SCC 606 (Gian Chand and brother Vs. Rattan Lal alias Rattan Singh)wherein the Honourable Supreme Court has held that the defendant must specifically deal with each and every allegation of facts in the plaint. General denial of facts alleged in the plaint is not sufficient.

28. As animadverted to earlier, in the written statement filed on the side of the appellants/defendants so many aspects averred in the plaint have not been specifically denied. It is not an adulation to say that in the written statement only an evasive denial has been made. Therefore, viewing from any angle, the defence put forth on the side of the appellants/defendants in the written statement cannot be accepted.

29. The Trial Court after pondering the available evidence on record has rightly decreed the suit. In view of the foregoing elucidation of both the factual and legal aspects, this Court has not found any valid ground to make interference with the judgment and decree passed by the Trial Court and therefore, the present appeal suit deserves to be dismissed.

In fine, the appeal suit is dismissed with costs. The judgment and decree dated 29-01-2016 passed in O.S.No.111 of 2011 by the Trial Court are confirmed. The connected miscellaneous petition, C.M.P.No.7679 of 2016 is also dismissed.


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