IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07-03-2011 CORAM: THE HONOURABLE MS.JUSTICE R.MALA Appeal Suit (First Appeal) No.145 of 2007 1. M.Kittusamy Gounder 2. S.Dhandapany 3. P.Gopalsamy 4. P.Palanisamy .. Appellants/Defendants 1 to 4 Vs. C.V.Karthikeyan .. Respondent/plaintiff Appeal Suit (First Appeal) against the judgment and decree dated 30.11.2006 in O.S.No.83 of 2005 on the file of the Additional District Court-cum- Fast Track Court No.5, Coimbatore at Thiruppur. For appellants : Mr.S.Parthasarathy, Senior Counsel for Mr.V.Bharathidasan For respondent : Mr.M.Balasubramanian JUDGMENT Appeal Suit (First Appeal) is preferred against the judgment and decree dated 30.11.2006 in O.S.No.83 of 2005 on the file of the Additional District Court-cum- Fast Track Court No.5, Coimbatore at Thiruppur. 2. The averments in the plaint are as follows: (a) The suit property originally belonged to the first defendant. On 9.5.1991, the first defendant entered into a lease agreement of vacant site with one Chidambara Bharathi, who is the brother of the plaintiff. The said Chidambara Bharathi took possession of the vacant site and put up building and converted the property into a dyeing factory by investing several lakhs of rupees including permission from the Pollution Control Board and other authorities. The plaintiff also became the partner in the said dyeing factory run by his brother Chidambara Bharathi under the name and style of Vaanavil Dyeing. They have formed another dyeing factory in the nearby S.F. No. and running the present dyeing factory in the suit property through their agent. (b) The first defendant entered into an agreement of sale on 9.1.2003 with the plaintiff in respect of the suit property for Rs.8,75,000/-. The first defendant received Rs.3 lakhs as advance. https://hcservices.ecourts.gov.in/hcservices/ The other conditions were incorporated in the agreement itself. Since already the plaintiff is in possession of the suit property, the suit sale agreement does not state that the possession has to be given at the time of the sale of the property. The plaintiff has to pay Rs.5,000/- per month towards the monthly rent for the vacant site till he was ready for purchase of the suit property. The plaintiff had been paying the monthly rent for the vacant land and also paid the additional sum of Rs.4,80,000/- as part sale consideration on five occasions, namely on 13.9.2003, 10.11.2003, 10.1.2004, 19.3.2004 and 27.8.2004. The sum of Rs.4,80,000/- includes the monthly rent of Rs.5,000/- p.m. He has paid Rs.3,55,000/- towards the balance sale consideration and Rs.1,25,000/- towards the rent. So, the plaintiff ought to have paid Rs.2,20,000/- to the first defendant and get the sale deed executed in his favour. (c) The plaintiff was and is ready to purchase the property and informed his readiness and willingness in person to the first defendant. But the first defendant purposely evaded and postponed the date of the execution of the sale and was keen only on receiving the balance sale price without executing the sale deed in favour of the plaintiff. (d) On 15.2.2005, the defendants 2 to 4 have made a local visit of the suit property along with some unknown persons and stated that the running of the dyeing factory should be stopped immediately and they are going to sell away the property to the said unknown persons. Then, the plaintiff came to know that the bogus sale deed had been executed by the first defendant in favour of the defendants 2 to 4 who are the son-in-laws of the first defendant. No property had been handed over to the defendants 2 to 4 by the first defendant. (e) The plaintiff is in possession for more than 14 years. The first defendant sold the suit property to the defendants 2 to 4 only for Rs.1,51,000/- which is a far a sum. The sale deed does not contain the buildings and other materials consisted there in the suit property. (f) The plaintiff will be exposed by his creditors if the Unit had been stopped by the first defendant, which will affect the entire business of the plaintiff in the area. The plaintiff was and is ready to purchase the suit property. The plaintiff is having sufficient money with him to purchase the suit property and ready and willing to deposit the same if the Court orders. (g) The sale deed in favour of the defendants 2 to 4 is invalid. They may be dealing with the document and further create encumbrance over the same. Hence, the plaintiff is constrained to file the suit for decree of specific performance and also for declaration that the sale deed dated 19.1.2005 executed by the first defendant in favour of the defendants 2 to 4, is invalid and sham and nominal one, and also for permanent injunction restraining the defendants from interfering with his peaceful possession and also for injunction restraining the defendants from in any encumbering or alienating the suit property to third parties and prayed for costs. https://hcservices.ecourts.gov.in/hcservices/ 3. The gist and essence of the written statement filed by the second defendant, adopted by the defendants 1, 3 and 4, are as follows: (a) The first defendant is the owner of the property. He had entered into a lease agreement with Chidambara Bharathi on 9.5.1991. The plaintiff has to prove that he is the partner in the dyeing factory started by his brother. The sale agreement dated 9.1.2003 is fabricated and forged one brought by the plaintiff to gain illegal and unlawful enrichment. The sale agreement is void document and is unenforceable in the eye of law. The document had been concocted and fabricated with the help of his brother and his associates. In 2002 itself, the value of the property is more than Rs.25 lakhs. The plaintiff, with a view to knock away the valuable property for a sum, fabricated the agreement to his convenience and made an offer for a paltry sum of Rs.8,75,000/-. (b) The allegation that the plaintiff has to pay a sum of Rs.5,000/- per month towards the rent in the vacant land till he was ready to purchase the property, is false. He has not paid the additional amount of Rs.4,80,000/- towards the sale consideration on five occasions, inclusive of the monthly rent of Rs.5,000/- and Rs.3,55,000/- towards the balance sale consideration and Rs.1,25,000/- towards the rent. As such, the allegation that the plaintiff has to pay only a sum of Rs.2,20,000/- towards the balance sale consideration to get the sale deed executed in his favour, is absolutely false and concocted story. (c) It is also false to contend that the plaintiff was always ready and willing to perform his part of the contract and the first defendant was evading and postponing the execution of the sale deed and was keen to receive the balance sale price. The sale deed in favour of the first defendant and the defendants 2 to 4, is valid and binding on the plaintiff. (d) The plaintiff is not at all in possession and enjoyment of the suit property. On 9.1.2003, the first defendant with the brother of the plaintiff, by name Chidambara Bharathi, has entered into a lease agreement with one K.Ishwaramoorthy and three others, whereby they have leased out the suit property for a period of three years for the purpose of running the dyeing factory in the name of Amman Colours. Since the defendants purchased the property, they attorn the lease with the first defendant and subsequently on 8.7.2005, without vacating the suit property and hand over the possession to the first defendant. (e) The plaintiff has suppressed the material facts and filed the suit with false and imaginary allegations with a view to knock the valuable property by hook or crook. The plaintiff has never entered into the lease agreement with the first defendant. The document produced by the plaintiff, does not confer any right in the suit property or disclose that the plaintiff was in possession and enjoyment of the suit property in the capacity as a lessee and run the dyeing factory. There is no cause of action for filing the suit. https://hcservices.ecourts.gov.in/hcservices/ The details of valuation are not correct. Hence, they prayed for dismissal of the suit with compensatory costs. 4. The trial Court, after considering the averments both in the plaint and written statement and the arguments of the learned counsel appearing on both sides, framed four issues for consideration and after considering the oral evidence of P.Ws.1 to 4 and D.Ws.1 and 2 and the documentary evidence of Exs.A-1 to A-28 and B-1 to B-8, decreed the suit, granting the equitable relief of decree of specific performance after declaring that the sale deed in favour of the defendants 2 to 4, dated 19.1.2005, is not valid under law, and also granted permanent injunction restraining the defendants from disturbing the enjoyment of peaceful possession by the plaintiff and also injuncted the defendants 2 to 4 from encumbering or alienating the suit property. Challenging the judgment and decree of the trial Court, the present First Appeal is filed by the defendants 1 to 4. 5. After hearing the arguments of both counsel, this Court frames the following points for consideration in this First Appeal: (i) Whether the trial Court is correct in holding that Ex.A-1 sale agreement is a true and genuine document ? (ii) Whether the trial Court is correct in holding that the sale deed dated 19.1.2005 in favour of the defendants 2 to 4, in Ex.A-2 = Ex.B-2, is an invalid and sham and nominal document ? (iii) Whether the respondent/plaintiff is entitled to equitable relief of decree of specific performance ? (iv) Whether the trial Court's judgment and decree, are sustainable ? and (v) To what relief the appellants/defendants are entitled to ? 6. Learned Senior Counsel appearing for the appellants/defendants submitted that Ex.A-1 sale agreement is not a true and genuine document and it has been fabricated and so, the suit itself is not maintainable. The trial Court ought not to have considered the evidence of P.Ws.2 to 4 who are the interested witnesses and it ought to have rejected the evidence of the plaintiff. Since the first defendant is an illiterate person and old man, the duty of the plaintiff is more to prove that Ex.A-1 is a true and genuine document. He further submitted that non-examination of the partners of "Amman Colours", weakens the case of the plaintiff. Learned Senior Counsel further submitted that the respondent/plaintiff has not proved that he was always ready and willing to perform his part of the contract. The trial Court erred in coming to the conclusion that the Left Thumb Impression in Ex.A-1, is genuine by invoking Section 73 of the Indian Evidence Act, without the assistance of an expert in this aspect. 7. Learned Senior Counsel appearing for the appellants/defendants further submitted that the respondent/plaintiff has not tendered or deposited the amount into Court. The trial Court https://hcservices.ecourts.gov.in/hcservices/ committed error in directing the plaintiff to deposit the additional sum of Rs.1 lakh in view of the high inflation of the value of the property in Tiruppur. The trial Court also committed error in rejecting the case of the appellants/defendants as to the delivery of possession of the suit property from Amman Colours. Learned Senior Counsel appearing for the appellants/defendants further stated that the respondent/plaintiff ha not come to the Court with clean hands and he has also given false statement in the plaint and therefore, he prayed for setting aside the judgment and decree of the trial Court and allowing the First Appeal, by dismissing the suit. To substantiate his arguments, learned Senior Counsel relied on various decisions. 8. Rebutting the said arguments, learned counsel appearing for the respondent/plaintiff submitted that to prove Ex.A-1 sale agreement is a true and genuine document, the plaintiff examined the attestors of the document Ex.A-1 and further stated that time is not the essence of the contract, since the first appellant/first defendant has received the amount and this aspect had been considered by the trial Court in proper perspective. The respondent/plaintiff is a partner along with his brother, which is evidenced by the document. The partners of Amman Colours are colluding with the defendants and hence, the plaintiff was not in a position to examine the same. 9. Learned counsel for the respondent/plaintiff further submitted that the evidence of P.Ws.1 to 4 and D.Ws.1 and 2 has clearly proved that Ex.A-1 is a true and genuine document. The trial Court considered all the aspects in proper circumspection and granted the decree. Further, the appellants 2 to 4/defendants 2 to 4 are the son-in-laws of the first appellant/first defendant and Ex.A-2 = Ex.B- 2, is only for Rs.1,51,200/- which is only a paltry sum and the description of the property is also not correct. This factum has been taken into consideration by the trial Court in proper manner. For all these reasons, he prayed for dismissal of the First Appeal and confirming the judgment and decree of the trial Court. 10. Point (i) : The appellants/defendants disputed Ex.A-1 sale agreement, dated 9.1.2003 executed for Rs.8,75,000/- and the advance alleged to have been paid is Rs.3 lakhs. The time for performance of the contract, is one year. Till then, the respondent/plaintiff ought to have paid Rs.5,000/- to the first defendant, towards the rent for the suit property and vacant site already leased out to the brother of the respondent/plaintiff, namely Chidambara Bharathi. 11. The main defence raised by the appellants/defendants is that Ex.A-1 is a fabricated document. There is no sale price fixed and that the first defendant never received Rs.3 lakhs as advance from the plaintiff. So, the burden is heavily upon the respondent/plaintiff to prove that Ex.A-1 sale agreement is a true https://hcservices.ecourts.gov.in/hcservices/ and genuine document. 12. At this juncture, it is appropriate on the part of this Court to consider the evidence of the attestors to Ex.A-1, namely P.W.4 Subramania Pillai and P.W.3 Hariharan, the person who prepared Ex.A-1 and P.W.2, who is none other than the brother of the respondent/plaintiff, as also the evidence of the plaintiff. 13. Before considering their evidence, it is appropriate to consider the arguments of the learned counsel for the respondent/plaintiff. He submitted that no separate written statement is filed by the first defendant. His son-in-laws, i.e. the appellants 2 to 4/defendants 2 to 4 are alleged to be the purchasers under Ex.A- 2 = Ex.B-2. The written statement filed by the second defendant was adopted by the first defendant and defendants 3 and 4. It is true that the defendants 2 to 4 are not the attestors of the document. 14. On a perusal of Ex.A-1 sale agreement, it is seen that the attestors are one Kadirvelu, Swaminathan and Subramania Pillai (PW4) and the document was prepared by Hariharan (PW3). Admittedly, Ex.A-1 sale agreement is an unregistered document. The first appellant/first defendant is only an illiterate person and it is alleged that he has put his Left Thumb Impression in Ex.A-1 in three pages of Ex.A-1, and he also received Rs.1 lakh as per the cheque of the Bank of India, Ganapathypalayam on 13.9.2003, Rs.1 lakh cash on 10.11.2003 and he received Rs.1 lakh cash on 10.1.2004 and cheque for Rs.1 lakh on 19.3.2004 and Rs.80,000/- on 27.8.2004, totalling Rs.4,80,000/-. So, Ex.A-1 sale agreement contains five LTI of the first appellant/first defendant Kittusamy Gounder. 15. Admittedly, no one has taken steps to send the document for the opinion of an expert. Now, it is appropriate to consider the argument advanced by learned counsel for the appellants/defendants in respect of Section 73 of the Indian Evidence Act, who submitted that the trial Court ought to have compared the signature and LTI with the assistance of an expert. So, before considering the decisions relied by counsel for either parties, it is appropriate to consider the evidence of P.Ws.1 to 4 and D.Ws.1 and 2. 16. First considering the evidence of D.W.1 (first defendant), who in his evidence stated in chief examination that the document had been fabricated. He denied the entire document and also the receipt of Rs.4,80,000/- endorsed on the back of the first page of the document Ex.A-1. While perusing his cross-examination, it is seen that he fairly conceded that the property had been leased out to Chidambara Bharathi (PW2) before 15 years as vacant site. His candid admission is that the property had been leased out to him for dying unit. He further submitted that the monthly rent was Rs.5,000/- p.m. P.W.2 Chidambara Bharathi himself made a construction in the property and for that, he has deducted Rs.3,000/- per month. He further https://hcservices.ecourts.gov.in/hcservices/ deposed that on the South of the suit property, P.W.2 Chidambara Bharathi is having his house and vacant property. He also constructed a water treatment plant as well as a water sump. He further deposed that the property was leased out to Amman Colours and it was decided that Rs.10,000/- has to be given to him out of the total rent of Rs.38,000/-. He has gone to the extent of saying that the rent has been received by P.W.2 Chidambara Bharathi and he handed over his rent to him. D.W.1's further candid admission is that whenever the said Chidambara Bharathi paid the rent, he obtained his LTI in the voucher. He further stated that except the rent, he has not received any amount from P.W.2 Chidambara Bharathi. He further stated that he was not certain about his LTI. He was not in a position to say as to whether the document/Ex.A-1 contained his LTI. He has further gone to the extent of saying that he knows the plaintiff only after seeing him in the Court and before that, he does not know him. 17. In his cross-examination, D.W.1 (first defendant) stated that he does not know as to whether Ex.A-1 contains his LTI or not and he further deposed that he put his LTI only for receiving the rent and that is only in white paper. He further deposed that before the property was purchased by his son-in-laws, they do not know that the property was leased out to Amman Colours. He denied that he has received the amount by way of cheque(s). 18. Next, while perusing the evidence of P.W.1 (plaintiff), in his cross-examination, a question was posed to him that as per the agreement, 12 months' time had been granted for the performance of the agreement, in which itself, it was stipulated that every month, Rs.5,000/- be paid to D.W.1, in pursuance of the same, he has not paid Rs.5,000/- p.m and he paid the first instalment only after eight months. P.W.1 fairly conceded that only one year time ended on 9.1.2004 and further stated that he has not issued any notice within one year time, i.e. the time stipulated in Ex.A-1 and before filing the suit, because after one year, the first defendant received the balance sale consideration. He also fairly conceded that on 9.1.2003, the first defendant and Chidambara Bharathi entered into lease agreement with Amman Colours and he is not an attestor of the document. From 1.1.2003 to 8.7.2005, Amman Colours alone were the lessees. 19. At this juncture, while perusing Ex.A-1 with Ex.A-28, which came into existence on the same day, i.e. on 9.1.2003, in Ex.A-28, the attestors were Swamainathan and Kadirvelu and they are also the attestors of Ex.A-1. 20. Nextly, while perusing the evidence of P.W.2 Chidambara Bharathi, who is the brother of P.W.1 plaintiff, he corroborated the evidence of P.W.1. In his cross-examination, P.W.2 stated that since Amman Colours issued a cheque in his favour and since it is not an Account Payee cheque, he made an endorsement and handed over the same https://hcservices.ecourts.gov.in/hcservices/ to the first defendant. After receipt of the same, the first defendant has affixed his LTI in Ex.A-1. He further stated that Swaminathan and Kadirvelu were also known to him, and there was no transaction between them. He also candidly admitted that in respect of the suit property, there was no lease agreement between P.W.1 and the first defendant. A suggestion in respect of the fabrication of the sale agreement and payment endorsement was denied by him. He further deposed that from the date of sale agreement onwards, Amman Colours are the tenant under him and P.W.2 admits that they have received Rs.11,50,000/- as rent. 21. P.W.3 Hariharan, who prepared Ex.A-1 sale agreement, in his cross-examination admitted his preparation of Ex.A-1 and that he is an Advocate. A suggestion posed to him that the document had been fabricated by the plaintiff, was denied by him. 22. P.W.4 is one Subramania Pillai, who deposed that he knows the plaintiff for the past ten years and they are runing "Dyeing Unit". He fairly stated that he has signed Ex.A-1 as an attestor and that P.W.3 Hariharan is his family friend and that Ex.A-1 had been written in the plaintiff's workshop. He denied the suggestion that no sale agreement had been executed. 23. While perusing the evidence of D.W.2 Gopalsami, who is the third defendant. He stated that he is the second son-in-law of D.W.1. He deposed that there is no sale agreement. But he has stated that after he got married in 1993, he was away from his in-law's house. He fairly conceded in his evidence that his father-in-law alone had been looking after the property and also receiving rent. He fairly conceded that it is his father-in-law's separate property and he had every right to deal with the same. He also fairly conceded that he does not know as to whether his father-in-law has entered into the sale agreement and as to what is the price he fixed. He also fairly conceded that he has not paid the amount before the Sub-Registrar Officer. On the date of the sale, he paid Rs.2 lakhs and Dhandapani paid Rs.2 lakhs and the fourth defendant paid Rs.1 lakh, but the document had been registered as per the guideline value. He also fairly conceded that on the date of sale, he has not taken the possession. He fairly admitted that in the sale deed, it is not mentioned as to whether he took possession from Amman Colours. While considering the evidence of D.W.2, it is clearly proved that the first defendant's son-in-laws are not having financial capacity to purchase the property and that as per the evidence of D.W.2, he is the owner of a car and he is having a tourist car centre. A suggestion posed to D.W.2 that he is not having any property, was denied by him. In his cross-examination, he fairly conceded that two co-brothers are transporting sand with the help of their lorry. He further stated that before filing the suit itself, he obtained a surrender deed. He denied the suggestion that to defraud the plaintiff, his father-in-law and his co-brothers joined together and https://hcservices.ecourts.gov.in/hcservices/ created the sale deed. He in his cross-examination also stated that he paid Rs.5,30,000/- three years ago and further stated that he does not know as to when his co-brothers paid that amount. In his cross- examination, he also stated that he did not know as to whether his father-in-law has received the money from Palanisamy and gave his daughter in marriage to Palanisamy. 24. So, considering the evidence of P.Ws.1 to 4 and D.Ws.1 and 2, and from the conduct of D.Ws.1 and 2, it is clearly proved that without assigning any reason, the sale deed in Ex.A-2 = Ex.B-2, was executed in favour of the appellant/first defendant's son-in-laws, and this has clearly proved that to defraud the legitimate claim and right of the respondent/plaintiff, they have created Ex.A-2 = Ex.B-21 sale deed. Admittedly, Exs.A-1 and A-28 came into existence on the same day. The attestors of Ex.A-28 are same to that of the attestor of Ex.A-1 sale agreement. It is true that the partners of Amman Colours had not been examined before Court. The reason assigned by the respondent/plaintiff is that they have colluded with the first appellant/first defendant and so, the respondent/plaintiff was unable to examine them. In such circumstances, there is no reason assigned