First appeal against dismissal of a specific performance suit based on an unregistered sale agreement. The appellate court found the agreement doubtful, likely anti-dated, co-owners had not signed, and the plaintiff failed to prove readiness and willingness. The subsequent purchasers were held bona fide. Appeal dismissed.
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A.S.No.45 of 2011
IN THE HIGH COURT OF JUDICATURE AT MADRAS
CORAM:
THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN
A.S.No.45 of 2011
Judgment reserved on Judgment pronounced on 08.03.2024 19.03.2024 A.G.Dakshinamoorthy ... Appellant Vs.
1.Krishnamoorthy 2.Aruljothi 3.Raja 4.Ramu @ Ramachandran 5.Vijayalakshmi 6.Veerappadurai 7.Viji @ Vijaykumar 8.Manjula Devi 9.Umarani 10.Valavan ... Respondents
Prayer : This First Appeal is filed under Section 96 and Order XLI Rule 1 of Code of Civil Procedure to set aside the judgment and decree dated 23.09.2010 in O.S.No.57 of 2006 on the file of the Court of the Additional District Court (Court No.2) Cuddalore.
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For Appellant : Mrs.G.Sumitra For R1 to R8 : No appearance For R9 & 10 : Mr.D.Ravichander *******
A.S.No.45 of 2011
J U D G M E N T
The unsuccessful plaintiff is the appellant herein. He filed a suit in O.S.No.57 of 2006 before the Additional District Court, Cuddalore seeking specific performance of the suit sale agreement Ex.A1. The defendants 5, 8, 9 & 10 filed written statement and others have remained ex-parte.
It is the specific case of the plaintiff that they have entered into agreement of sale with all the defendants except defendants 9&10 who are the owners of the property. The property originally belonged to one Vaiyapuri and his son Pakkiri died. The defendants 1 to 4 are the legal heirs of Vaiyapuri and defendants 5 to 8 are the legal heirs of the pre-deceased son Pakkiri. Defendants 9 & 10 are the purchasers from Defendants 1 to 8.
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3 (a) As per the plaint, the plaintiff and all the defendants 1 to 8 have entered into Ex.A1 - suit sale agreement on 23.06.2006 for sale of the suit schedule property and the sale consideration was Rs.11,40,000/- and paid Rs.1,00,000/- as advance. Duration for completion of the sale agreement is five months. Since Manjula Devi - D8 was admitted in hospital for delivery and Vijayalakshmi - D5, mother of Manjula Devi accompanied to hospital, they have not signed Ex.A1 agreement.
(b) The defendants 1 to 8 have executed General Power of Attorney Ex.B1 on 20.07.2006, having came to know the same, he issued a notice by way of telegram under Exs.A7 & A8 to Manimaran, the Power of Attorney holder. Despite the same, Manimaran, General Power of Attorney of the other defendants had executed a sale deed Ex.B18 and Ex. B24 in favour of his wife Uma Rani and her brother Valavan on 27.07.2006. Since the parties are getting ready for registration before the Sub Registrar, Kurincipadi, the appellant/plaintiff had filed the suit on the very same day, i.e.,27.07.2006.
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for valuable consideration and Ex.A1 was subsequently created for the purpose of this case.
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and D.W.3 and Manimaran who is the husband of D.W.2 and Power of Attorney holder and attestor of the Sale Deed in favour of D9 and D10 (P.W.2 and P.W.3) is examined as D.W.5.
has arrived at the following points for determination-
plaintiff (or) bogus, as pleaded by the defendants?
A.S.No.45 of 2011
(iii) Whether the agreement Ex.B1 is binding upon defendants 5 & 8?
valuable consideration?
R9 and R10 contended that the alleged panchayatar whom said to have been advised to enter into Ex.A1 agreement were not examined and it is a specific case of the contesting defendant before the trial Court that Ex.A1 is an anti dated document, after coming into the existence of the sale deed in favour of these respondents in Ex.P18 and P24 and made submissions in support of the judgment of the trial Court.
documentary evidence and the citations relied on by the respective counsel, this Court finds that Ex.A1 dated 23.06.2016 is a unregistered sale agreement
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said to have been entered between the plaintiff and the defendants D1 to D8. D1 to D4 are none other than the legal representatives of Vaiyapuri Achari.
since, one of the son of Vaiyapuir Achari by name Pakkiri died, his legal representatives D5 to D8 were arrayed as parties and I find that D9 and D10 have purchased from D1 to D8.
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time Manjula Devi was in hospital for her delivery and her mother Vijayalakshmi was looking after her. Since both Manjula Devi and her mother was in Pondicherry, their signature could not be obtained.
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came to the Court with clean hands. In the cross-examination, P.W.1 plaintiff had admitted that he had the knowledge of defendants D9 and D8 were running Tea shop in the suit property. It is further admitted in the crossexamination that D9's husband Manimaran is running a tea stall and D10 Valavan is the brother in law of the said Manimaran and brother of the 9th defendant and all the 3 persons are in the suit property as a lessee. Though in the plaint, he has stated that he said to have been received information that some power deed was executed in favour of Manimaran, in the crossexamination he admitted that he had knowledge that the document has been registered. He further admitted in the cross-examination that execution of the sale deed in favour of D9 and D10 were also known to him. Thus, I find the contention of the learned counsel for the respondents R9 and R10 as contained in the plaint is not the true facts and found to have force.
16.On perusal of the plaint, I find that with deficit Court fee, the suit has been filed. Subsequently, it has been complied with within the time limit stipulated by the Registry of the filing section of the lower Court. The
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balance sale consideration is to be Rs.10,40,000/- However, neither at the
filing of the suit nor during the trial of the suit, even after order passed by the lower court or during the pendency of the appeal, the appellant/plaintiff has not chosen to deposit the said amount nor shown any financial strength to purchase the property by paying the alleged balance of Rs.10,40,000/- and hence, I find that the contention raised by the learned counsel for the respondent is that the appellant/plaintiff is not having sufficient financial sources to complete the sale transaction. Furthermore, based upon the above evidence, I find that the plaintiff is not ready with money and hence the readiness as required under the Section 16(3) of the Specific Relief Act appears to be very much lacking on the part of the appellant/plaintiff.
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Ex.A1 sale agreement and the payment of the sale consideration has been evidenced under Ex.B2. It is also duly attested by all the parties as spoken to
by D.W.1 and D.W.2 and thus, I find that the defendants 9 and 10 are the purchasers for valuable consideration. On the date of their sale deed, it is pleaded that there is no such agreement and it is further pleaded that they are bonafide purchaser and the evidence of P.W.3 and P.W.4 attestor does not inspire the confidence of the Court for the multiple reasons stated in the preceding paragraphs.
demonstrated before this Court that they are bonafide purchaser for valuable consideration, as discussed in the presiding paragraphs.
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conduct of the panchayat, non examination of the alleged panchayatar is also appears to be fatal to the plaintiff's case.
confidence of this Court as rightly held by the Trial Court in view of the inconsistency with the oral evidence of P.W.3 and P.W.4 with that of Ex.A1
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and accordingly, this Court holds that coming into the existence of Ex.A1 is doubtful and hence the defendants have successfully probablized their case through the cross-examination of P.W.3 and P.W.4 that Ex.A1 sale agreement came into existence subsequent to the sale deed in favour of D9 and D10 and hence Ex.A1 appears to be anti dated document.
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19.03.2024
Index : Yes / No Neutral Citation : Yes/No nvi
To
1.The Additional District Court (Court No.2) Cuddalore. 2.The Section Officer, VR Section, High Court, Madras.
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RMT.TEEKAA RAMAN, J.
nvi
Judgment in A.S.No.45 of 2011
19.03.2024
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3 issues framed by the court
Whether Ex.A1 suit sale agreement was genuine or an anti-dated/bogus document created after the sale to defendants 9 and 10.
Whether the plaintiff proved readiness and willingness to perform the contract under Section 16(3) of the Specific Relief Act.
Whether defendants 9 and 10 were bona fide purchasers for valuable consideration.
2 provisions across 2 enactments
A.G.Dakshinamoorthy
Krishnamoorthy
Aruljothi
Raja
Ramu @ Ramachandran
Vijayalakshmi
RMT.TEEKAA RAMAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
