Dismissed

M.Nabiyar v. M.Rameesha Beebi

Madras HC4 May 2017AS(MD)/17/2011

Case brief

AI extract

What is this about?

Appeal against dismissal of suit for specific performance of an alleged sale agreement. Court held the agreement was fabricated based on suspicious evidence from the original agreement holder who did not know the parties involved, dismissing the appeal.

What did the court decide?

Appeal dismissed with costs; lower court judgment confirmed.

M.Nabiyar Vs M.Rameesha Beebi — Specific Performance | Madras HC (2017)

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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

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RESERVED ON : 12.04.2017

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PRONOUNCED ON : 04.05.2017

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CORAM:

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THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

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AS(MD)No.17 of 2011

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M.Nabiyar : Appellant/Plaintiff

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Vs 1.M.Rameesha Beebi 2.Raja Mohammed 3.Abdul Rahman 4.Mohammed Sheriff 5.Mohammed Sulthan 6.Mohammed Meera : Respondents/Defendants

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Prayer:- This Appeal Suit is filed against the judgement and decree dated 16.09.2010 made in OS.No.36 of 2006 by the Additional District Sessions Judge (FTC I), Trichy.

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For Appellant : Mr.A.Arumugam for M/s.Ajmal Associates For Respondents : Mr.Palani Velayutham for R1 to R6 Mr.S.Bala Karthick

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JUDGEMENT

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The Plaintiff in OS.No.36 of 2006 on the file of the Additional District Sessions Judge (FTC I) Trichy, has filed this appeal, aggrieved by the dismissal of the said suit, by judgement and decree dated 16.9.2010.

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The said suit had been filed originally against the 1st Respondent herein M.Rameesha Beebi. Subsequently, the Respondents 2 to 6 were impleaded in the suit by order dated 25.4.2007 in IA.No.916 of 2006. The suit was filed for specific performance of the agreement of sale dated 7.4.2006 executed by the 1st Defendant M.Rameesha Beebi originally in favour of one Arumugam and subsequently made over to the Plaintiff M.Nabiyar and for a https://hcservices.ecourts.gov.in/hcservices/ further direction against her and the other Defendants to execute the sale deed in favour of the Plaintiff, after receiving the

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balance sale consideration, failing which for execution of the sale deed through court and also for delivery of possession and alternatively for return of the advance amount of Rs.27,000/together with interest at 12% p.a. with a charge over the property and for costs.

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In the plaint, it had been stated that the 1st Defendant had entered into an agreement of sale dated 7.4.2006 with one Arumugam, son of Paramasivam, residing at 20A, Mariamman Kovil Street, Malaikovil, South Trichy. It had been stated that the agreement was typed, read over and explained to the 1st Defendant. She agreed to sell the suit property for a total consideration of Rs.13 lakhs. An advance of Rs.20,000/- was paid and it was mentioned in the agreement. On 9.4.2006, another sum of Rs.7,000/- was paid and this was also endorsed in the agreement. The time for specific performance was three months. Xerox copies of title deeds were handed over by the 1st Defendant at the time of agreement of sale. The Plaintiff M.Nabiyar owned property to the North of the suit property. He therefore requested the said Arumugam to assign the sale deed in his name. The said Arumugam sought payment of consideration of Rs.18,000/and it was also paid and on 12.5.2006 by a written document the agreement of sale was assigned in the name of the Plaintiff. Since the 1st Defendant did not perform her part of the agreement, a notice dated 19.5.2006 was issued. The door was locked and consequently, intimation was given by the postman. The Plaintiff stated that he approached her personally to receive the balance consideration and execute the sale deed. He was informed by the said Arumugam that the 1st Defendant told him that she did not want him to assign the sale deed and wanted to cancel the agreement. It had been stated that the Plaintiff is doing real estate business and hence, there was necessity to purchase the lands for real estate building. It had been further pleaded that if the agreement of sale is not considered by the court below, then in the alternative, the Plaintiff may be granted a decree for return of the advance amount together with interest.

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In the written statement, it had been stated that the name of the 1st Defendant is Rameesa and not Rameesha Beebi. The Defendants specifically denied that they had executed any agreement of sale, much less the agreement of sale dated 7.4.2006 in favour of Arumugam. The receipt of advance amount has also been denied. It has been stated that the said Arumugam was doing real estate business and in this connection, the son of the 1st Defendant Mohammed Sheriff had handed over the xerox copies of the title deeds for procuring prospective purchasers. The 1st Defendant had already executed a registered settlement deed dated 8.10.1998 in favour of one Kadher Mohideen to an extent of 47 https://hcservices.ecourts.gov.in/hcservices/ cents out of total extent of 1.29 acres in SF.No.35/3 comprising 65 cents and SF.No.38/3 comprising 64 cents. It has been stated that the agreement of sale is a fabricated document. The

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allegation that the said Arumugam assigned the agreement of sale in favour of the Plaintiff had also been specifically denied. It had been stated that the Plaintiff has no right to claim any remedy on the basis of the sale agreement. The fact that notice was issued has also been denied. It had been stated that on 17.5.2006, the son of the 1st Defendant Mohammed Sheriff met Arumugam with respect to prospective purchasers. It way only then that Arumugam informed about the agreement of sale. Immediately, the 1st Defendant filed a police complaint on 17.5.2006 and it was taken on file as Petition No.94 of 2006. During the enquiry by the Police, the said Arumugam stated that he came to know the actual Rameesa Beebi only after seeing her personally and that some other women calling herself as Rameesha Beebi had executed the sale deed. Arumugam also stated that he would not interfere with the rights of the Defendant in the suit property. The 1st Defendant had executed a registered settlement deed dated 31.5.2006 in favour of all her sons, including the aforesaid Mohammed Sheriff. It had been stated that there was no cause of action against the 1st Defendant. Consequently, the Defendants claimed that the suit should be dismissed.

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The newly impleaded 6^th Defendant had also filed a written statement, which was adopted by the Defendants 2 to 5, in which, it is stated that they became the owners of the suit property by virtue of the settlement deed, dated 31.5.2006 and they also denied that the 1st Defendant had executed any agreement of sale in favour of Arumugam and they also claimed that the suit should be dismissed.

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On consideration of the pleadings, the court below had

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framed the following issues for trial:-

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1.Whether the 1st Defendant had executed the agreement of sale dated 7.4.2006 in favour of Arumugam?

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2.Whether the 1st Defendant had received an advance amount of Rs.20,000/- and Rs.7,000/- as stated in the plaint?

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3.Whether the agreement of sale is a forged document?

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4.Whether the Plaintiff is entitled to a decree of specific performance?

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5.Whether the Plaintiff is entitled to an alternative relief of return of advance amount?

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6.To what other reliefs is the Plaintiff entitled?

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After the Defendants 2 to 6 were impleaded, the

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https://hcservices.ecourts.gov.in/hcservices/ following additional issues were framed:-

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1.Whether the agreement of sale dated 7.4.2006 between the 1st Defendant and Arumugam is a true document?

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2.Whether the assignment of the agreement of sale by Arumugam to the Plaintiff dated 12.5.2006 is a legally enforceable document?

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3.Whether the undertaking given by Arumugam on 17.5.2006 before the police is a binding document?

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4.Whether the settlement deed dated 31.5.2006 by the 1st Defendant in favour of the other Defendants would affect the rights of the Plaintiff?

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5.Whether the Plaintiff is entitled for specific performance?

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6.To what other reliefs is the Plaintiff entitled?

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The parties went to trial. During the trial, the Plaintiff examined himself as PW.1 and examined Arumugam as PW.2 and another independent witness Muthukrishnan as PW.3. 1^st Defendant had examined herself as DW.1 and the 6^th Defendant Mohammed Meera Sahib examined himself as DW.2. The Plaintiff marked Ex.A1 to Ex.A12, which included the agreement of sale between the 1st Defendant and Arumugam dated 7.4.2006 as Ex.A1, the assignment deed by Arumugam in favour of the Plaintiff dated 12.4.2006 as Ex.A2, the advocate notice dated 19.5.2006 as Ex.A3 and the returned cover as Ex.A4 and the xerox copies of the documents of the suit property as Ex.A5 to Ex.A11 and the encumbrance certificate as Ex.A12. On the side of the Defendants, Ex.B1 to Ex.B14 were marked. These included the pubic notice dated 14.5.2006 as Ex.B1, another notice dated 7.12.2007 as Ex.B2, the ration card and the property tax and other revenue records as Ex.B3 to Ex.B9, the settlement deed executed by the 1st Defendant dated 3.5.2008 as Ex.B10, the police complaint dated 17.5.2006 as Ex.B11, the petition given to the Sub Inspector of Police, Trichy by the 6^th Defendant dated 16.10.2009 as Ex.B12 and the criminal complaint lodged by the 6th Defendant as Ex.B14. During the trial, copy of notice given by Arumugam to the Sub Inspector of Police, Pudukottai dated 19.5.2006 was marked as Ex.X1 and the acknowledgement cards were marked as Ex.X2 to X5.

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On consideration of the oral and documentary evidence, the court below had dismissed the suit, holding that the agreement of sale was a fabricated document and no right passed from the same and consequently, specific performance cannot be enforced and since the agreement itself was held to be a fabricated document, return of advance amount also was not ordered. The suit was dismissed with costs. Challenging the same, the Plaintiff has filed this appeal suit.

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https://hcservices.ecourts.gov.in/hcservices/

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Before this court, the learned counsel for the Appellant stated that Ex.A1, on which the suit is based, which is

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the agreement of sale dated 7.4.2006, had actually been both signed and left thumb impression affixed by the 1st Respondent. The learned counsel further pointed out that it also contains the signature of M.Packir Mohammed Basha, who is claimed to be one of the sons of the 1st Defendant. The learned counsel further stated that the address of the 1st Defendant was given in the plaint as residing at 5A, East 2^nd street, Muthammal Apartments, Pudukottai. However, the Respondents 2 to 6 have stated that they are residing at TS.No.3994, South 3^rd Street, Pudukottai. They have not given their door number of the house. It has also been pointed out that the xerox copies of the title documents relating to the suit property had been produced by the Plaintiff. They have not stated that they are not residing in East 2^nd Street. Moreover, Packir Mohammed Basha had not been examined in court. He is an attestor. The 4th Defendant Mohammed Sheriff, who is said to have dealings with Arumugam, had not been examined on behalf of the Defendants. The learned counsel further pointed out that the Plaintiff had examined PW.2 Muthukrishnan who is a witness to the document. The complaint had been given only against Arumugam that he was trying to get the sale deed and there was no complaint that forgery has been committed. It had been further stated that the handwriting expert had not been examined in court. Pointing out all the above, the learned counsel for the Appellant stated that the sale agreement is a valid document and there are no suspicious circumstances to reject the same.

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The learned counsel for the Respondents stated that the case of the Respondent was that there was a total denial of the agreement and moreover, the 1st Respondent had settled the property in favour of the other Respondents. It had been further stated that the age of the 1st Respondent had been given as 42 years, but actually she was aged 74 years. It is pertinent to note the contention of the original agreement holder Arumugam that he had seen the 1st Respondent only in the Police Station for the first time. It is the contention of the learned counsel that the suit notice was not received, advance amount was not received and moreover Arumugam has admitted in his cross examination that he had seen the agreement holder, namely, the 1st Respondent only in the Police Station.

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I have carefully considered both rival arguments.

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The entire case surrounds the truth, validity and legal acceptability of Ex.A1. Ex.A1 is the agreement of sale executed on Rs.100 stamp paper and it has three pages. It has been signed by M.Rameesha Beebi and there is also a thumb impression, which is said to be the left thumb impression of said Rameesha Beebi. M.Rameesa Beebi is the name of the 1st https://hcservices.ecourts.gov.in/hcservices/ Respondent herein. The address is given as No.5A, East 2^nd Street, Muthammal Apartments, Pudukottai. It had been stated that out of 1.29 acres of land, 0.82 cents is agreed to be sold to P.Arumugam,

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son of Paramasivam, residing at 20A, Mariamman Koil Street, Malaikovil South, Trichy-13. The date of the agreement is 7.4.2006. The total sale consideration is Rs.13 lakhs. The advance amount received is Rs.20,000/-. The time for payment of the balance sale consideration of Rs.12,80,000/- was fixed as three months. On the reverse of the 1^st page, an endorsement for receipt of advance of Rs.20,000/- and Rs.7,000/- is made. It has been witnessed by two persons, namely, M.Packir Mohammed Basha, son of Mohammed Ameerdin and in fact, son of the 1st Respondent herein and P.Muthukrishnan. The document has also been witnessed by M.Packir Mohammed Basha and P.Muthukrishnan. Arumugam, who is the agreement holder, was examined as PW.2. During his cross examination, PW.2 stated as follows:-

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@uk Prhg P tp kw;Wk; mtuJ kfd; gf;f P h ;Kfk;kJ Mfpa ,Uth;fisa[k; 15 tUl';fshf vdf;F bjhpa[k;/ 2006k; Mz;Lf;F Kd;g[ 15 tUl';fshf rk Prh g Ptp vd;gtiua[k; gf;f P h ; Kfk;kJ ghl;rhita[k; vdf;F bjhpa[k; uk Prh g Pgpapd; fzth; bgah; vdf;F "hgfk; ,y;iy/ uk Prhg P gpapd; fzth; v';F vg;nghJ ,we;jhh; vd;w tptuk; vdf;Fj;bjhpahJ/ uk Prh g Pgptpf;F bkhj;jk; vj;jid kfd;fs; vd;W vdf;FbjhpahJ/ kfsh ahuhtJ cs;shh;fsh vd;w tptuk; vdf;FbjhpahJ/@

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This evidence is very strange because he stated that he knew Rameesha Beebi and her sons for 15 years, but does not know the Appellant or about her sons or about her daughters or about her husband. The evidence is naturally very suspicious in nature. Thereafter, even though he had claimed that he knew Packir Mohammed Basha for 15 years, he stated that gf;f P h ;Kfk;kJ ghl;rh vd;d ntiybra;fpwhh; vd;w tptuk; vdf;F bjhpahJ@ namely, he did not know what was the avocation of Packir Mohammed Basha. Moreover, he stated as follows:-

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@uk Prhg P tpf;F vj;jid kfd;fs;. vj;jid kfs;fs; cs;shh;fs; vd;W ehd; nfl;Lk; bjhpe;J bfhs;stpy;iy/ gzk; bfhLj;J fpiuak; th';f Kw;gl;lnghJk; gf Ph ;Kfk;kJ vd;d ntiybra;fpwhh; vd;w tptu';fis mwpe;J bfhs;s Kw;gltpy;iy/@

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He further stated about the Plaintiff to whom he had assigned the agreement of sale as follows:-

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@egpahh; vd;gth; ahh; vd;W vdf;FbjhpahJ/ egpahh; vd;d bjhHpy; bra;fpwhh; vd;w tptuk; vdf;F bjhpa[k;/ egpahh; vd;gtUk; hpay; v!;nll; bjhHy; bra;JtUfpwhh;/ vf;rpgpl; V/2 Mtzj;jpw;F Kd;g[ egpahhplk; ehd;; ve;j tpahghuKk; bra;atpy;iy/ nk nlhth; ehd; bra;J je;jjpy; ahh; rhl;rp ifbaGj;J nghl;lhh;fs; vd;W vdf;F bjhpahJ/ vf;rpgpl; v/2 Mtzj;jpy; gp/Kj;JfpUc&;zd; vd;gth; rhl;rpahf ifbahg;gk; nghl;Ls;shh;/ Mdhy; Kj;JfpUc&;zd; vf;fpgpl; gp/2 nk nlhth ;gj;jpuj;jpy; rhl;rpj;ifbaGj;J nghl;lJ vdf;FbjhpahJ/ kwe;jtpl;lJ/ vf;rpgpl; v/1 Mtzj;jpYk; https://hcservices.ecourts.gov.in/hcservices/ Kj;JfpUc&;zd; vd;gth;jhd; rhl;rpahf ifbaGj;J nghl;Ls;sjhf bjhpfpwJ/@

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The evidence as extracted above shows that he does not know the Appellant, to whom he had assigned the agreement of sale and also he was also not aware of PW.3 Muthukrishnan. When enquired by the police, he stated that he does not know him and he never seen Rameesa Beevi residing at TS.3994 and further stated that he did not enter into any agreement of sale with the said Rameesa Beebi. He further stated as follows:-

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@g[Jf;nfhl;il. bjw;F 3k; t Pjp. o/v!;/ek;gh;/3994 vd;w KfthpapypUe;J Kfk;kJ mk PUjpd; kidtp ukrhg Ptp vd;gtiu fhty; epiyaj;jpw;F mtuJ kfd;fs; miHj;J tutpy;iy/ lt[d; rh;nt ekgh; 3994y; cs;s uk Prh g Pgpianah mthpd; kfd;fisnah ehd; ghh;j;jJ ,y;iy/ mth;fis vdf;FbjhpahJ/ o/v!;/ek;gh; 3994 g[Jf;nfhl;il bjw;F 3k;t P jpapy; cs;s uk Prh g Ptpaplk; ehd; fpiuak; xg;ge;jk; bra;atpy;iy/@

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All the above evidence given by PW.2 is totally self-destructive. A clear cloud arises about the genuineness of the agreement. He was further questioned regarding the age of the Rameesa Beebi and Packir Mohammed Basha. He stated as follows:-

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@gf;f P h ;Kfk;kJt[f;F taJ Rkhh; 25 ,Uf;Fk;/ uk Prhg P gpf;F taJ 40 taJ ,Uf;Fkh vd;why; mt;tst[jhd; ,Uf;Fk;@

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It is on record that Rameesa Beebi is actually aged about 75 years. It is therefore clear that Arumugam is totally confused with whom he had entered into the agreement of sale. The entire evidence is clouded with suspicion.

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PW.3 Muthukrishnan also gave evidence. He also given contradictory evidence during the cross examination.

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The complaint before the Police Station was given that the said Arumugam who is not a party to the suit, was attempting to grab the property of the Respondents. It is only natural that such a complaint alone can be given. They did not know about the document, which has been actually been created. Even before the Police Station Arumugam had given a statement that he did not enter into any agreement of sale with the 1st Respondent, who is said to be residing at TS.No.3994, South 3^rd Street, Pudukottai. It is clear that the property of a 75 years aged lady had been the subject matter of the suit without her consent. The agreement holder Arumugam did not know the person with whom he entered into the agreement of sale, he did not know occupation of the husband of the said agreement holder, he did not know how many sons and daughters she had. It is very strange that Arumugam, P.W.2 who claimed to have entered into an agreement for a sum of Rs.13 lakhs, had given such vague and self destructive evidence. It is only natural that he has made over the agreement to the Appellant https://hcservices.ecourts.gov.in/hcservices/ herein and the Appellant had to step into the shoes of the original agreement holder. He could not build a separate case.

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Even a perusal of the agreement shows that out of the total sale consideration of Rs.13 lakhs, only a meagre sum of Rs.20,000/alone has been shown as advance amount. This also creates a cloud over the agreement. Even based on the evidence of Arumugam, it is clear that the agreement of sale is surrounded by suspicious circumstances and consequently, I am unable to subscribe to the genuinity of the agreement and I hold that this appeal suit deserves dismissal.

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In this result, this appeal suit is dismissed with costs. The judgement and decree dated 16.09.2010 made in OS.No.36 of 2006 by the Additional District Sessions Judge (FTC I), Trichy, is confirmed.

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Sd/-

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Assistant Registrar (CO)

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/True Copy/

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Sub Assistant Registrar

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To:

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The Additional District Sessions Judge (FTC I), Trichy.

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The Record Keeper, VR Section, Madurai Bench of Madras High Court, Madurai.

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SRCM

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TE/SV-MMS/SAR-I : 23/05/2017 : 8P/3C

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Pre-Delivery Judgment in AS(MD)No.17 of 2011 04.05.2017

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https://hcservices.ecourts.gov.in/hcservices/

M.Nabiyar v. M.Rameesha Beebi

Case brief

What is this about?

What did the court decide?

M.Nabiyar v. M.Rameesha Beebi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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Case details

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