IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 05.07.2007 CORAM : THE HON’BLE MRS. JUSTICE PRABHA SRIDEVAN A.S.No.1387 of 1990 Mahaboob Sheriff .... Appellant Vs. 1. S.Mani @ Mahadevan 2. S.Gopal 3. Tholasi Ram 4. Shanmuga Sundaram 5. Official Liquidator High Court, Madras 6. N.Saradha (Minor) Rep. by mother and next friend N.Saroja ..... Respondents (RR6 impleaded as per order of Court, dated 08.04.1999 in C.M.P.No.12422 of 1995 by SMAWJ) Appeal filed against the Judgment and Decree, dated 29.06.1990 made in O.S.No.598 of 1983, on the file of the Additional Subordinate Judge, Salem. For Appellant : Ms.P.T.Asha for M/s.Krishnan For Respondents: Mr.D.Ravichander for Mr.T.R.Rajaraman for R1 and R4 J U D G M E N T The plaintiff is the appellant. The first respondent is the owner of the property. Two suits were filed for specific performance and tried jointly. Since the third respondent herein also obtained a sale agreement from the first respondent herein, he sued for specific performance as well. https://hcservices.ecourts.gov.in/hcservices/ 2. The trial court held that the agreement in favour of the third respondent, which is marked as Ex.B.5 was true and that the agreement between the appellant and the first respondent, Ex.A.19 cannot be believed and that it was brought about only to defeat the rights of the third respondent herein. After having concluded that Ex.B.5 is a valid agreement, the suit filed by the third respondent was also dismissed for other reasons. The third respondent has not chosen to file any appeal. Therefore, his suit for specific performance of Ex.B.9 stands dismissed and the said decree has become final. So, Ex.B.5 no longer stands as a hurdle in the way of the appellant, for obtaining a decree for specific performance and we have to see whether the appellant has made out a case for getting the relief that he prayed for. 3. The averments in the plaint in brief are as follows : One Sundaram Asari, the father of the respondents 1 and 2 was the owner of the property. The appellant entered into the property as lessee, both for residential and non-residential purpose. Sundaram Asari died on 21.02.1977, leaving behind 10 children, the respondents 1 and 2, being the two of the six sons. Sundaram Asari left a will and in accordance with that the brothers divided the property. The division took place in June 1977, whereby the respondents 1 and 2 jointly took the property. Thereafter, the first respondent wanted to dispose of his share and the appellant was ready to purchase, but the eldest son of family, one Ramanathan, who had left the family, even during his father's life time, staked a claim in the suit property and filed O.S.No.337 of 1977. Therefore, the plans to sell the property got suspended. Thereafter, one of the other brothers Sankaran entered into contract for sale of his property for a sum of Rs.34,000/-. The first respondent also offered to sell his share of the property. As per the agreement, the first respondent agreed to sell the property for a sum of Rs.34,000/-. The advance amounts borrowed by the first respondent were to be treated as loan and the date for execution of the sale deed was within a month, after the disposal of O.S.No.337 of 1977 referred to above. The agreement was oral. In addition, a further loan was taken by the first respondent for a sum of Rs.500/-, which was also appropriated towards the sale price, on his request. Coming to know of this agreement, the second respondent also agreed to sell his share of the property and on the same terms, the appellant agreed to purchase the same. The second respondent was in urgent need of funds and threatened to sell the property to some third person. The appellant, who used to lend money to the second respondent agreed to advance funds, on condition that these amounts would be appropriated towards the sale price, accordingly, a sum of Rs.21,400/- was given to the second respondent. Thereafter, the price of the property rose in Salem Town and therefore, the respondents 1 and 2 decided to back off on the contract and executed an agreement in favour of the third https://hcservices.ecourts.gov.in/hcservices/ respondent. The third respondent, who knew about the understanding between the parties, entered into agreement. The second respondent had also executed two sale deeds in favour of the fourth respondent, who is the close relative. These sale deeds are sham and nominal, created with a view to deat and defraud the appellant's claim. The appellant has always been ready to perform his part of contract, but for the suit by Ramanathan, the sale deeds ought to have been executed long ago. That suit was dismissed on 31.01.1981. The appellant was not aware, whether they were any appeals there from. So, this suit was filed in 1983 for specific performance. 4. The first respondent filed his written statement. He denied knowledge of the contract of sale between the appellant and Sankaran; denied the offer to sell the property and further at the rate mentioned in the plaint, denied the agreement to treat the loan amounts as advances towards the sale consideration, denied the second respondents intention to sell the property to the appellant and resisted the suit also on the ground of maintainability and prayed that the suit be dismissed. 5. The other respondents filed their written statements, but they are not necessary to be dealt with, since according to the appellant, all other persons having any right, title or interest in the property have conveyed the same to the appellant and except for the small share, which the first respondent is entitled to, the appellants title is complete. Therefore, the appellant has come to a mutual and amicable settlement, not only with the second respondent, but also with the transferee from the second respondent. As has been observed earlier, the third respondent's suit was dismissed and has become final and therefore, the findings of the trial court with regard to the second respondent's intention to sell in favour of the fourth respondent and the agreement in favour of the third respondent are not really relevant. All we have to see in this appeal is whether the appellant has proved whether there was any agreement in the sale and whether he has proved his entitlement to the decree for specific performance. 6. The learned counsel for the appellant would submit that the trial court erred in disbelieving Ex.A.19, which is the agreement between the parties, on two grounds, one because the court was of the opinion that the third respondent had a better right to the property and now this has become irrelevant. The next reason why the trial court disbelieved Ex.A.19, was because the trial court was of the opinion that it was brought about after filing of the suit. The learned counsel submitted that it has been proved by the oral evidence that the amounts lent to the first respondent was to be treated as advance and there is nothing elicited in the cross examination to the contrary. The learned https://hcservices.ecourts.gov.in/hcservices/ counsel also submitted that though in the pleadings, the first respondent has denied Ex.A.19, when the document was put to him, the first respondent as D.W.2 has not denied Ex.A.19 and therefore, the court ought not to have come to the conclusion that it was a fabricated document. The learned counsel also submitted that it is in evidence that there was a protracted delay in having the sale deed executed only because of the dispute raised by the eldest brother of the family and this is also been admitted. The learned counsel submitted that if Ex.A.19 does not find place in the plaint, it is only because Ex.A.19 was executed on 18.11.1983 and the suit was filed on 21.11.1983, within three days and therefore, on that ground, the court ought not to have rejected Ex.A.19. 7. The learned counsel for the first respondent would submit that even on just the pleadings, the suit deserve to be dismissed. The appellant cannot rely on Ex.A.19 for any purpose. Ex.A.19 does not find place in the pleadings, and even in the cause of action, the date of Ex.A.19 is not referred to. The appellant came to court on the basis of the oral agreement, which was not proved and therefore, his suit must fail. The learned counsel also submitted that all the amounts, which were given by the appellant to the respondent were only hand loans and they could not have been treated as advances. 8. The appellant examined himself as P.W.1 and no other witness and marked 19 documents. The third respondent, who filed the other suit was examined as D.W.1, the first respondent was examined as D.W.2, the grand father of the erstwhile minors, whose share was also conveyed, was examined as D.W.3 and D.W.4 is the fourth respondent in this suit, who is the alienee from the second respondent. 9. According to the appellant, there was an oral sale agreement in 1977, under which the respondent had agreed to sell the property to him for a sale consideration of Rs.34,000/-, but the execution of the sale deed was deferred in view of the litigation in the form of the suit filed by Ramanathan. In his evidence, he has stated that " ehd; me;j tpiyf;nf nfl;nld; jUfpwjhf brhd;dhh;fs; gpujh;!; rp!;lh; nf!; nghl;L ,Uf;fpwjhf brhd;dhh; U:/34000/- j;jpw;F jUfpwjhf o1 brhd;dhh;/ ngr;R ele;J bfhz;nl ,Ue;jJ/ mth; xd;Wnk brhy;yiy/ brhy;wjhf brhy;yp nghdhh;". Thereafter, he has stated that he did not know when the case was over and that he issued notice, Ex.P.2. In cross-examination, it has been elicited that this oral agreement was sometime in February or March 1977. 10. In the evidence of D.W.2, the first respondent, has stated in his chief examination that there was no agreement between him and the appellant, he denied that he has agreed to https://hcservices.ecourts.gov.in/hcservices/ sell the property for Rs.37,000/-. In his cross-examination, he has again denied that he made any attempt to sell the property. However, when Ex.A.19 is put to him, he has not denied his signature, nor the circumstances, under which Ex.A.19 came into existence. Ex.A.19 is an unstamped document, which reads as follows : " ek;kpy; 1yf;fkpl;lth; jfg;gdhhpd; capy; rhrd K:ykha[k;. rnfhjuh;fs; ghf TW rPl;L K:ykha[k;. ghfg; gphptpid K:ykha[k;. ghj;jpag;gl;L mth; rh;t Rje;jpukhf mDgtpj;J tUfpwJkhd nfhl;il 32 giHa khh;bfl; bjUtpy; cs;s ,jdoapy; fz;Ls;s brhj;jpy; 2yf;fkpl;lth; 1969 Kjy; thliff;F ,Ue;J tUfpwhh;/ 1977y; 1yf;fkpl;ltUf;Fk; mtUila rnfhjuh;fSf;Fk; Vw;gl;l ghfgphptpidapy; ,e;j brhj;J 1yf;fkpl;ltUf;F te;jgpd; 1yf;fkpl;lth; 2yf;fkpl;ltUf;F fpuak; bra;a xg;ge;jk; bra;a ngrpdhh;? Mjrkak; 1yf;fkpl;lth; bghpa mz;Zh; uhkehjd; jfuhW bra;J bfhz;L jhth bra;jjhy; fpuak; bra;tij i& jhthtpw;F gpd;dh; itj;Jf; bfhs;s ehk; xg;g[f; bfhz;nlhk;/ ,ilapy; mtru njit fhuzkhf Jsrpuhkplk; U:/10.000/- bgw;Wf;bfhz;L xU fpua xg;ge;jgj;jpuk; vGjpf; bfhLj;J ,Ue;njd;/ fld; epthuz rl;lk; fhuzkhf g[nuhnehl; Fjit nghpy; mth; fld; bfhLf;f tpUg;gg;gltpy;iy/ i& uhkehjd; nghl;l tHf;F Koe;Jtpl;lJ/ ,d;W 1yf;fkpl;lth; ,jdoapy; fz;Ls;s brhj;ij 2yf;fkpl;ltUf;F fpuak; ngrp. 1481 rJu mo epyKk; mjpYs;s fl;ol tiffs; vy;yhk; nrh;j;jp rJu mo U:/55/- tPjk; hp$p!;jh; bra;J bfhLj;JtpLtjhf xj;Jf; bfhs;fpwhh;/" Thereafter, the recitals regarding payment are hit down. 11. It is true that there is no reference to Ex.A.19 in the plaint. The suit was based on the oral agreement between the parties in 1977. Even, assuming that Ex.A.19 cannot be the basis for a decree for specific performance, it definitely is a record of a past agreement and indicates that both the parties had agreed to the terms, under which, in 1977, the property was agreed to be sold. So, the recitals in Ex.A.19 can be taken note of for the purpose of accepting the appellant's case, that there was an agreement in 1977, by which the first respondent had agreed to sell the property and that the execution of the sale deed would have to wait till the case filed by Ramanathan reaches a finality. Therefore, the appellant has proved there was an oral agreement between the parties for sale of the property. 12. Next, we come to the question of limitation. From the recitals in Ex.A.19 and also the oral evidence of P.W.1, as well https://hcservices.ecourts.gov.in/hcservices/ as the pleadings, it is seen that the time for performance was one month after the suit filed by Ramanatham got disposed. It is not in dispute that this suit was disposed of in 1981 and within one month, thereafter, the sale deed had to be executed. The plaintiff had three years' time from the date of the disposal of the earlier suit to file the suit, the present suit was filed in 1983, well within time. Therefore, the suit is not hit by limitation. 13. In the decision, Brij Mohan and others vs. Sugra Begum and others, reported in 1990 (4) SCC 147, it has been held as follows : " 20. We have given our careful consideration to the arguments advanced by learned counsel for the parties and have thoroughly perused the record. We agree with the contention of the learned counsel for the appellants to the extent that there is no requirement of law that an agreement or contract of sale of immovable property should only be in writing. However, in a case where the plaintiffs come forward to seek a decree for specific performance of contract of sale of immovable property on the basis of an oral agreement alone, heavy burden lies on the plaintiffs to prove that there was consensus ad idem between the parties for a concluded oral agreement for sale of immovable property. Whether there was such a concluded oral contract or not would be a question of fact to be determined in the facts and circumstances of each individual case. It has to be established by the plaintiffs that vital and fundamental terms for sale of immovable property were concluded between the parties orally and a written agreement if any to be executed subsequently would only be a formal agreement incorporating such terms which had already been settled and concluded in the oral agreement." The plaintiff has proved the existence of oral agreement, by his oral evidence and Ex.A.19. 14. The question is whether the plaintiff has proved his readiness and willingness. In his chief examination, he has stated that he is all along being ready to pay the amount and obtain the sale deed. " kzp nfhghyplk; ngrpdgo fpua bjhif brYj;jp fpuak; bgw ehd; jahuhf ,Uf;fpnwd;/ jhthg;go ofphp MfQqk;/ " There is no cross-examination in this regard. https://hcservices.ecourts.gov.in/hcservices/ 15. The plaintiff has proved the existence of the agreement. The suit has been filed in time and the plaintiff has also proved his readiness and willingness. One must still see whether the plaintiff is entitled to the discretionary relief on the specific performance. It is seen from what has happened subsequent to the suit that the appellant has purchased peace from all other persons, who had a share in the property and the only the portion, which is still pending decision is this property. Therefore, having proved his readiness and willingness to perform his portion of the agreement and in view of the above circumstances, I am of the opinion that the appellant has established that he is entitled to the discretionary relief of the specific performance. 16. The Judgment and decree of the trial court is set aside and the suit is decreed as prayed for and the appeal is allowed. No costs. 17. Both the learned counsel informed me that they were told by he Official Liquidator that the property had been sold and the proceeds therefrom has been distributed to the creditors to Sundaram Asari. Though the Official Liquidator name is printed, he is not before this Court. Therefore, if the property had already been sold by the Official Liquidator to third parties, who are not before me, the success of the appellant will not in any way affect their rights. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar tsvn To The Additional Subordinate Judge Salem. One cc to Sarvabhauman Associates SR.No.40398 A.S.No.1387 of 1990 sky/18/2 https://hcservices.ecourts.gov.in/hcservices/