IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED :11.06.2010 C O R A M : THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.411 of 2000 S.M. Doraisamy .. Appellant/Plaintiff -vs- 1. Chinnammal 2. Kasipalayam Adi Dravidar powerloom Weaver CO-operative production sales society E.H.155, rep by its Secretrary, K.K.Nagar Erode-638009 .. Respondents/Defendants Appeal filed under Section 96 C.P.C. against the judgment and decree dated 11.08.2000 passed in O.S.No.383 of 1998 on the file of the learned Principal Subordinate Judge, Erode. For appellant : Mr.S.V.Jayaraman Senior counsel for Mr.D.Krishna kumar For Respondents : Mr.V.Bharathidasan for R1 No Appearance for R2 J U D G M E N T This appeal is preferred by the aggrieved plaintiff against the judgment and decree passed by the lower court in O.S.No.383 dated 11.08.2000. 2. The plaintiff before lower court is the appellant and the defendants 1 and 2 are the respondents herein. 3. The brief facts of the plaintiff's case narrated in the plaint would be as follows: (a) The suit was filed by the plaintiff on the foot of the sale agreement dated 25.04.1996 for the execution of sale deed in respect of suit property and for that the plaintiff had paid a sum of https://hcservices.ecourts.gov.in/hcservices/ Rs.3,80,000/- towards the sale consideration fixed at Rs.4,00,000/- and two years period was fixed as time frame since the executor Subrmaniam wanted time to vacate the 2nd defendant from the suit property. The 1st defendant was his mother and the said Subramaniam died on 02.06.1998 leaving the 1st defendant as his sole heir and when the plaintiff approached the 1st defendant for execution of agreement she did not turn up. The plaintiff sent a notice to the 1st defendant on 15.07.1998 to execute the sale agreement to which the 1st defendant had sent a reply with false informations. (b) The plaintiff was ready and willing to perform his part of contract throughout by paying a major portion of the sale price to the tune of Rs.3,80,000/- and the 2nd defendant who was a tenant under late Subrmaniam, which is a weaver society, could not be evicted within the said period and construction done by the 2nd defendant in the premises purchased by him from the 1st defendant and on such pretext it was prolonged for two years period and therefore, the said agreement was not executed despite the plaintiff demanding for the execution of the sale deed from the 1st defendant. (c) The plaintiff was even ready on the date of sale consideration to pay the full amount and execute the sale agreement with the deceased Subramaniam and after the death of Subramaniam the plaintiff was asking the 1st defendant to execute the sale agreement but the 1st defendant without doing so, is trying to sell the property to some third party which would lead to heavy loss to the plaintiff. The plaintiff also filed the suit for alternate relief of refund of money which the plaintiff had paid for the sale consideration. Even though the agreement expired on 25.04.1998, the plaintiff was always ready and willing to perform his part of contract and the plaintiff is ready to deposit the balance amount of Rs.20,000/- and the plaintiff prays for a decree for specific performance. 4. The contentions raised by the 1st defendant in her written statement would be thus: (a) The 1st defendant denies the allegation made by the plaintiff in his plaint that the suit properties were in absolute possession and enjoyment of the deceased Subramaniam and that on 25.04.1996 the said Subramaniam entered into a sale agreement with the plaintiff to sell the suit property at the sale price of Rs.4,00,000/- and on the said date of sale agreement, the deceased Subrmaniam received an advance of Rs.3,80,000/- and a written sale agreement was executed to the said effect. The further allegation that two years time was fixed to evict the 2nd defendant from the suit property is also denied. (b) The defendant would further deny that the plaintiff was ready to get the sale deed and demanded late Subrmaniam to evict the 2nd defendant and execute the sale deed. The allegations that, the 1st https://hcservices.ecourts.gov.in/hcservices/ defendant is aware of the details of the said agreement and after the death of Subramaniam the plaintiff demanded the 1st defendant to evict the 2nd defendant to execute the sale deed are false. The 1st defendant would further submit that the alleged sale agreement dated 25.04.1996 is not true and genuine one. The same has been created to grab the suit properties from the defendant who is a widow. The plaintiff is one of the pangalies. As the widow of late Palanisamy Gounder the 1st defendant was having only male issue Subramaniam who is also died in his prime age on 02.06.1998. The 1st defendant would further submit that the plaintiff has created the alleged sale agreement. The signatures therein should have been forged by the plaintiff. The plaintiff prior to the death of Subramaniam was closely associated with him as he was closely related to him and therefore the plaintiff was having every chance to forge the signature of late Subramaniam and the sale agreement has been attested by the close friends of the plaintiff. (c) The 1st defendant would further submit that the deceased Subramaniam has no exclusive title over the suit properties and therefore, there is no possibility for the execution of the alleged sale agreement by him only. The earlier transfers of the joint family properties were effected by the defendant and her son together. Moreover, there was no necessity for the sale of the suit properties. The 1st defendant is one of co-sharers of the suit properties and she is not a party to the alleged sale agreement. The value of the sale agreement itself would reveal the fact that the suit sale agreement is not a genuine one. The building (ie) item I of the suit property which is worth more than Rs.8 lakhs and the suit properties in toto would certainly fetch more than Rs.10 lakhs. Likewise, the plaintiff who is capable of paying Rs.3,80,000/- out of sale price of Rs.4,00,000/- has no necessity of two years period to pay the balance of the meagre amount of Rs.20,000/-. If really there is an agreement, there would be no impediment to get the sale deed with regard to item 2 of the suit properties and the allegation that the 2nd defendant was to be evicted prior to sale is only a vague, nothing but concocted. (d) The failure on the part of the plaintiff to take any steps during the life time of the late Subramaniam also thrown much light over the fact that the suit sale agreement has been created conveniently. If the sale agreement is genuine one, the plaintiff would have expressed his readiness and willingness during the life time of late Subramaniam i.e within the time allegedly agreed. (e) The 1st defendant would further submit that the plaintiff and the deceased Subramaniam and another person one Kumar seemed to have divided the properties in a suit in O.S.No.215/1998 Sub Court, Erode under a compromise decree dated 27.04.1998 and therefore the sale agreement dated 25.04.1996 ought to have been created subsequent to the death of said Subramaniam. Therefore, the plaintiff is not https://hcservices.ecourts.gov.in/hcservices/ entitled to get any relief much less, the relief of specific performance as prayed. The plaintiff is also not entitled to get refund of alleged advance subsequent to the impugned sale agreement of the value of the suit property which has fallen by 50%. The said amount is an actual loss sustained by the 1st defendant. The 1st defendant therefore prays for the dismissal of the suit. 5. The 2nd defendant remained ex-parte before lower court. 6. The lower court had framed relevant issues and had entered into the trial. The plaintiff was examined as P.W.1 and yet another witness was examined on his side as P.W.2 and Exs.A.1 to A.6 were produced and the 1st defendant was examined as D.W.1 and Exs.B.1 to B.3 were produced on the side of the 1st defendant . After appraising the evidence adduced on either side the lower court had dismissed the suit filed by the plaintiff with costs. Aggrieved by the said decision of the lower court the plaintiff had preferred the present appeal. 7. Heard Mr.S.V.Jayaraman, learned Senior counsel appearing on behalf of Mr.D.Krishnakumar, learned counsel for the appellant. Heard Mr.V. Bharathidasan, learned counsel appearing for the 1st respondent. No appearance for the 2nd respondent. 8. On a careful perusal of the pleadings, the evidence adduced on either side before the lower court, the judgment and decree of the lower court, the grounds raised in the appeal memo and on hearing the arguments advanced on either side, the following points are found emerged for consideration. (1) Whether the suit agreement dated 24.05.1996 was executed by the deceased Subramaniam for the sale of suit properties and is it a valid and genuine agreement or is it an agreement created by the plaintiff for the purpose of the case? 2. If true, whether the plaintiff was always ready and willing to perform his part of the contract and is entitled to specific performance of the agreement? 3. Whether the plaintiff is entitled to the alternate relief for the refund of the advance amount said to have been paid under the suit agreement? 4. Whether the judgment and decree passed by the lower court are liable to be set aside and is the appeal allowable? 5. To what relief the appellant is entitled for ? 9. Learned Senior counsel Mr.S.V. Jayaraman appearing on behalf of the appellant would submit in his argument that the suit was laid by the plaintiff/appellant on the foot of the sale agreement produced as Ex.A.1 dated 25.04.1996 for the execution of sale deed in respect of suit property and he had paid a sum of Rs.3,80,000/- towards the https://hcservices.ecourts.gov.in/hcservices/ sale consideration fixed at Rs.4,00,000/- and two years period was fixed, since the executor Subrmaniam wanted time to vacate the 2nd defendant from the suit property. He would further submit in his argument that the 1st defendant was his mother and the said Subramaniam died on 02.06.1998 leaving the 1st defendant as his sole heir and when the plaintiff approached the 1st defendant for execution of sale deed she evaded to do so and therefore he sent a notice to which the 1st defendant had falsely replied. He would further submit that the plaintiff had produced evidence to show that the said Subramanian had executed the sale agreement after receiving a sum of Rs.3,80,000/- from the plaintiff, and such evidence of P.W.2 was lost sight of the lower court, which had not considered about the interpretation of the sale agreement. He would further submit that the defence raised by the 1st defendant that the plaintiff and her deceased son Subramanian had close relationship and at that time the plaintiff might have obtained the signatures from her son Subramanian in the empty papers and the plaintiff would have used those papers for creating the sale agreement would lead to an inference that signatures of the deceased Subramaniam were admitted by the 1st defendant and therefore the reasoning given by the lower court that the signatures do not belong to deceased Subramaniam could not be a correct conclusion. He would further submit that the appellant was ready and willing to perform his part of the contract throughout by paying a major portion of the sale price to the tune of Rs.3,80,000/- and the 2nd defendant who was a tenant under late Subrmaniam, a weaver society, could not be evicted within the said period and the construction was done by the 2nd defendant in the premises purchased by him from the 1st defendant and on such pretext it was prolonged for two years period and therefore the said agreement was not executed despite the plaintiff was demanding for the execution of the sale deed. He would further submit that the executor of the agreement Mr.Subramaniam died on 02.06.1998 and therefore there was no sufficient time to execute the sale deed regarding the suit property and the said fact was not taken note of by the lower court. He would further submit that the 1st defendant had taken different stands that the suit property was valued to Rs.25,00,000/- in Ex.A.3 reply notice but valued at Rs.10,00,000/- in the written statement and therefore the claim of the defendant could not be true and the case of the plaintiff should have been found as true. He would also submit in his argument that non-examination of the scribe cannot be fatal to the case, since the attestor's evidence as P.W.2 would be sufficient to prove the execution of sale agreement. Even though the non examining the scribe, is a lacuna, it is not a grave one. He would also submit that the reasoning given by the lower court that the execution of sale agreement was not even known to his close relations could not be a ground to reject the sale agreement. He would further submit that the evidence of P.W.1 and P.W.2 would clinchingly prove the execution of the sale agreement by the deceased Subrmaniam and it is for the 1st defendant to prove that the sale agreement could not be executed by https://hcservices.ecourts.gov.in/hcservices/ the said Subramaniam or it would have been created by utilising the signature obtained or fabricating the signature of the deceased Subramaniam. The evidence of P.W.1 deposed in Tamil was misinterpreted by the lower court. According to his evidence a sum of Rs.3,80,000/- was paid out of the agreed sale price of Rs.4,00,000/- for the suit property. The said evidence was not understood by the lower court in a proper perspective. 10. The learned Senior counsel would also submit that the reasoning of the lower court for not including the 1st defendant as one of the parties to the agreement is not justified because she herself filed a suit in O.S.No.373 of 1998 in Ex.A.4 and in that she had categorically admitted that the deceased Subramaniam alone was the owner of the suit property. He would also submit that the finding of the lower court that 1st defendant was also having right in the suit property and the exclusion of 1st defendant from executing sale agreement cannot be sustained in view of the 1st defendant's admission that the property was admittedly belonged to the late Subramaniam. More over he would submit in his argument that the reason given by the lower court that two agreements should have been prepared and one of the agreements should have been handed over to the Subrmaniam is against the usual customary practice. Therefore, the finding of the lower court cannot be sustained. He would also submit that there was no opposition for the plea or evidence that the plaintiff was always ready and willing to perform his part of the contract and the plaintiff is ready to deposit the balance sale consideration of Rs.20,000/- and the plaintiff is entitled to a decree of specific performance and accordingly the judgment and decree passed by the lower court may be set aside and the suit for specific performance filed by the plaintiff may be decreed with costs. 11. Learned counsel for the 1st respondent/ 1st defendant would submit that the lower court was right in disbelieving the plea that the agreement was executed by the deceased Subramaniam. He would submit in his argument that the deceased Subramaniam, the plaintiff and the attestor (ie) Premkumar are pangaligal and a suit was filed in between them in O.S.No.215/1998 before the Sub Judge, Erode and the said suit was compromised in between them and prior to the filing of the said suit the title to the suit property was in dispute in between the deceased Subramaniam, attestor Premkumar and the plaintiff and due to dispute as to who was the owner of the property, the said suit in O.S.No.215/1998 was filed but the suit agreement in Ex.A.1 has categorically mentioned that Subramaniam was the absolute owner of the suit property ancestrally, and that would go to the root of the agreement. He would further submit that the dispute in between the plaintiff, attestor was still prevailing even during the said date of agreement of sale. He would also submit in his argument that the even if Ex.A.1 was true the plaintiff would have issued notice to the deceased Subramaniam seeking for execution of sale deed within https://hcservices.ecourts.gov.in/hcservices/ the said period of two years but the plaintiff kept quiet for over two years and even after the lapse of two years on 25.04.1998, he did not send any notice to the late Subramaniam. He had issued notice to the 1st defendant only after the death of deceased Subramaniam on 02.06.1998 which throw suspicion and would also show that the agreement has been created by the plaintiff in order to snatch away the property from the hands of the 1st defendant. 12. He would further submit in his argument that the attestor Premkumar is a henchman of the plaintiff and their evidence cannot be relied upon since they burked the truth so as to snatch away equitable relief at the hands of this court. He would also submit in his argument referring that P.W.1 had categorically accepted in his evidence that : @gpnuk;Fkhiu gj;jpuk; vGjpa njjpf;F Kd;dhy; ghh;j;Js;nsd;/ mjpfkhf gHf;fk; ,y;iy@ He would also submit that P.W.2 Prem kumar would depose in his cross examination that @ehd; Jiurhkpf;Fk;. FkhUf;Fk; beU';fpa ed;gh; vd;why; rhp jhd;@ Therefore, he would submit in his argument that the evidence of P.W.1 and P.W.2 cannot be relied upon. He would further submit that if really the agreement Ex.A.1 is a true document, the typist who typed the document Mr.G. Rathnasamy ought to have been examined. If really he was examined it would throw light as to the genuineness of the document. Moreover, he would submit in his argument that the relief of specific performance being an equitable relief cannot be granted for the mere asking the court, as it requires much care to be taken regarding the circumstances attendant on the instrument to find out the birth or otherwise and discretion has to be exercised on sound and reasonable principles to be found out on the conduct of parties. He would cite the judgment of the Division Bench of this court made and reported in (2003) 1 M.L.J. 369 between Duraisamy and others v. N. Ethirajulu and others in support of his arguments. He would further submit in his argument that the plaintiff in a specific performance case should win or fall on his own pleadings and evidence and he cannot stand on the strength or weakness of the defendant's case. He relied upon yet another bench judgment of this court reported in (2002) 2 M.L.J. 626 between Kumari Anandan v. Dr.T. Balamukunda Rao (died) and others. Referring to the said judgments the learned counsel for the 1st respondent/ 1st defendant would submit further in his argument that the property was not actually belonging to the deceased Subramaniam only and it belonged to the 1st defendant also and the omission to the 1st defendant would raise suspicion regarding the said document. He would further submit that the subsequent passing of a compromise decree in O.S.No.215/1998 will not solve the issue in favour of the plaintiff, but it should be taken https://hcservices.ecourts.gov.in/hcservices/ into account as to the right of the deceased Subramanian and the stand of the plaintiff herein on the alleged date of sale of agreement. He would further submit in his argument that the documents in Exs.B.1 to Ex.B.3 would show that they were executed by Subramanian and the 1st defendant jointly in respect of properties belonging to the Subramaniam and the 1st defendant during the alleged period of sale agreement. He would further stress in his argument that those documents would prove that the said Subramaniam alone was not the owner of the suit property during 1996. He would also submit in his argument that the evidence adduced by the plaintiff is not sufficient to hold that the deceased Subramaniam had executed the said agreement after receiving a sum of Rs.3,80,000/- and it would be very much suspicious, when the plaintiff had allegedly paid a sum of Rs.3,80,000/- out of Rs.4,00,000/-, it could have been written as a sale deed instead of a sale agreement. He would further submit in his argument that the lower court had considered the facts and circumstances of the case and it had disbelieved the evidence of P.Ws. 13. He would also submit that this court had come to a conclusion in a judgment reported in (2008) 3 MLJ 796 between P. Sampoornam and Others vs. L.T. Somasundaram and Others that even if a doubt arises whether it is probable or possible that an agreement of sale would have been executed, the discretionary relief of specific performance shall not be granted. The learned counsel for the 1st respondent would stress in his argument that there were already disputes in between parties by way of litigation in O.S.No.215/1998 which ended in a compromise. Subsequently whether there could be any sale agreement emanated in between the plaintiff and the deceased Subramaniam is the question which cannot be answered in favour of the plaintiff. He would further submit in his argument that the plaintiff had not examined any other witness in support of his case except P.W.2, who is his henchmen and therefore the plaintiff's case that he had paid a sum of Rs.3,80,000/- and obtained a sale agreement from the deceased Subramaniam cannot be true. He would emphasis in his argument that the judgment and decree passed by the lower court denying main relief of specific performance and also alternate relief of refund of advance which are equitable reliefs by exercising its discretion which are perfectly correct and therefore, the judgment and decree passed by the lower court need not be interfered or set aside and therefore, the appeal may be dismissed. 14. I have given anxious thoughts to the arguments advanced on either side. It is appropriate to apply the arguments of both sides on point wise. https://hcservices.ecourts.gov.in/hcservices/ 15. Point 1: The suit has been filed before the lower court by the appellant/plaintiff on the foot of a sale agreement dated 25.04.1996 said to have been executed by one Subramaniam the bachelor son of the 1st defendant, who executed the said agreement after receiving a sum of Rs.3,80,000/- as advance. According to the plaintiff the said agreement was entered for a sum of Rs.4,00,000/- and the remaining sum of Rs.20,000/- alone has to be paid to the deceased Subramaniam. It is the further case of the plaintiff that two years period time was fixed since the 2nd defendant was occupying the said property as a tenant and the deceased Subramaniam was given two years for vacating the said 2nd defendant and therefore the said period was fixed in between parties. The executant Mr.Subramaniam was dead on 02.06.1998 and his mother was impleaded as 1st defendant since she is the sole heir of the said deceased Subramaniam. 16. However, the stand of the plaintiff was denied by the 1st defendant that the agreement was not at all executed by the said Subramaniam and it would have been a created document in order to snatch away the property from the 1st defendant who is the lonely widow. The circumstances under which the 1st defendant raised such objection was that the plaintiff had created the documents because there was a serious dispute in between plaintiff, deceased Subramaniam and the attestor Prem kumar in respect of properties held joint in between them as pangalis and therefore, the suit was filed in O.S.No.215/1998 before Sub court, Erode and the suit ended in a compromise on 27.04.1998 in which the suit property was allotted to the share of deceased Subramanaim. When the evidence are being such, the plaintiff being one of the parties to the said litigation could