Madras High Court (Mrs Justice T.V. Thamilselvi, 29-04-2025), common judgment allowing S.A.No.237 of 2023 (Bernath Mary @ Pappathi, 13th defendant) and S.A.No.40 of 2025 (defendants 8 to 12: Lourdh Mary, Peter Arokia Dass, Martin Theresa, Jaya Mart, Mary Jagulin), filed under Sec.100 of the Civil Procedure Code against the judgment/decree dated 25-08-2022 in A.S.No.10/2017 (II Addl. Subordinate Judge, Coimbatore), which had reversed the trial court's dismissal (decree dated 04.10.2016, III Addl. District Munsif, Coimbatore) of plaintiff Arumugam's suit in O.S.No.4584/2004 for specific performance of a sale agreement dated 13.04.1995 (Ex.A1; Rs.15,000/- consideration, plus Rs.25,000/- with a backside endorsement Ex.A2 dated 10.07.1995) purportedly executed by thumb impression by Irudaiya Mariammal, the illiterate original owner, then about 90 years old, without eye sight or hearing, who died in January 1996 (25.01.1996). Questions of law: (a) propriety of the lower appellate court decreeing specific performance despite materials indicating Ex.A1 was fabricated from thumb impressions affixed on blank papers for loan purposes; (b) error of the first appellate court in ignoring the plaintiff's withholding of the attestors (best evidence) and the circumstances of execution. Held: equitable relief required proof of execution beyond reasonable doubt; apart from himself the plaintiff had no independent witness; P.W.1 admitted the agreement was prepared at his instance, that neither the son nor the daughter witnessed it, and that the executant was about 90, not of sound mind, blind and deaf; no readiness and willingness was expressed within the three-month term ending August 1995; Ex.A2 showed no extension of time, bore no signature of the plaintiff and was never sought to be proved; receipt of money for medical expenses did not amount to admission of the agreement, contra the first appellate court's reliance on Andal and another vs. Chinnasamy, 2009(7) MLJ 640 (here only referred); the first appellate judge assigned no reason to reverse the trial court, making his findings illegal, unreasonable and liable to be set aside. Disposition: both appeals allowed; A.S.No.10/2017 findings set aside; suit dismissed without costs; connected CMP Nos. 6756 of 2023 and 888 of 2025 closed; P.W.1's near three-year rent default marked him an illegal occupier; for abusing the process of law by creating fabricated records he was held liable to be vacated, and the trial court was directed to dispose of any possession application within three months.
