IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 17.06.2011 CORAM: THE HON'BLE MS. JUSTICE K.B.K.VASUKI Second Appeal No.24 of 1998 1.Paramasivam (Deceased) 2.Akilambal 3.Subramani 4.Kumar 5.Tamil Selvi (appellants 2 to 7 are brought on record as LRs of 6.Jaya the deceased sole appellant vide order 7.Lakshmi dt.02.08.1999 in CMP.No.567 of 1999) .. Appellants /Defendant Vs. Mohini Bai .. Respondent/ /Plaintiff SECOND APPEAL is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 23.09.1997 made in A.S.No.14 of 1997 on the file of the District Court, Ootacamund confirming the Judgment and decree dated 27.12.1996 made in O.S.No.44 of 1996 on the file of Sub Court, Ootacamund. For Appellants : M/s.S.K.Rakhunathan. For Respondent : M/s.S.P.Subramanian. J U D G M E N T The defendant is the 1st appellant since deceased. The suit arising out of which the present Second Appeal is filed for specific performance of the suit sale agreement. The suit was decreed in favour of the plaintiff and the appeal filed by the defendant is dismissed by confirming the judgment decree of the trial court. Hence the Second Appeal by the defendant before this court. During the pendency of this appeal the sole appellant died and his LRs are impleaded as the defendants 2 to 7. 2. The suit is filed for specific performance of Ex.A2 suit sale agreement dated 28.03.1984 purported to be executed between the plaintiff and the defendant in respect of the suit property for sale consideration of Rs.36,000/-. It is the case of the plaintiff that the plaintiff and the defendant entered into Ex.A1 sale agreement and the same was not subsequently fructified and fresh sale agreement was entered into between the parties on 28.03.1984 https://hcservices.ecourts.gov.in/hcservices/ and Rs.5000/- was paid as advance on 21.08.1980 and further payment of Rs.5000/- is treated as advance under the 2nd sale agreement and the same was adjusted out of sale consideration of Rs.35,000/- agreed between the parties and the defendant agreed to receive the balance sale consideration of Rs.25,000/- and to execute the sale deed within two years and the balance sale consideration was received on 27.02.1985 and the plaintiff has been demanding the defendant to execute the sale deed and the plaintiff demand has been put off by the defendant. The defendant has also not responded to the legal notice issued by the plaintiff and the same compelled the plaintiff to come forward with the present suit. 3. Such claim was seriously denied by the defendant on the ground that the documents dated 21.08.1980 and 28.03.1984 styled as sale agreements are executed without any intention to sell the property and the documents came to be executed at the instance of one Mothilal who is non else than the brother of the plaintiff's husband and professional money lender, by way of security for due repayment of Rs.5000/- + 5000/- received as loan from Mothilal and the defendant has no acquaintance or any connection with either the plaintiff or her husband and similar documents styled as agreement of sale were obtained in respect of other property bearing door No.39A belonging to the defendant in the name of one Ashokchand who is the son of Mothilal and Mothilal obtained the signatures of the defendant in blank stamp papers and received original title deeds of the property by way of security and whatever the documents executed by the defendant lack mutuality between the parties and the document is hence not legally enforceable against the defendant. The defendant has also opposed the suit relief on the ground of steep rise in property value than what is mentioned in the agreement. 4. The parties in support of their respective contentions examined the plaintiff's husband and the defendant as PW1 and DW1 and produced Ex.A1 to Ex.A7 and Ex.B1 to Ex.B5 and Ex.C1 documents during trial. 5. The trial court on the basis of the evidence available arrived at a conclusion that suit Ex.A1 and Ex.A2 documents came to executed by the defendant as sale agreements with real intention to sell the property to the plaintiff after due negotiations regarding the sale transactions and the defendant failed to prove different nature of the transactions i.e, loan transaction and the plaintiff duly proved performance of her part of contract and the suit Ex.A2 agreement is binding and enforceable against the defendant. On appeal filed by the defendant the lower appellate court also after analysing the available evidence confirmed the findings of the trial court. Hence this second appeal by the defendant. 6. The Second Appeal is admitted on the following Substantial Questions of Law : https://hcservices.ecourts.gov.in/hcservices/ 1.Whether the document under Ex.A2 lacks mutuality? 2.Whether the rising price of immovable property should be taken note of while exercising the discretion for grant of equitable relief to the owner? 3.Whether the courts below ought to have drawn an adverse inference against the plaintiff for non- examination of the plaintiff as a witness especially in a suit for specific performance of agreement. 7. The learned counsel for the appellant has in this second appeal questioned the correctness and validity of the judgment and decree of the courts below on the ground that the courts below erred in deciding the suit mainly on the basis of the oral evidence of the plaintiff's husband without considering the non examination of the plaintiff and that the suit Ex.A2 document lacks mutuality as it is unilateral in nature without any intention on the part of the defendant to sell the property to the plaintiff. The learned counsel for the defendant also seriously relied on the steep rise of value of the property which is according to the defendant one of the material factors not properly considered by the courts below while granting the discretionary relief and the discretion vested upon the courts below is not judiciously exercised and the same has resulted in greater prejudice to the owner of the property. 8. The plea of want of mutuality between the parties under Ex.A2 is based on two grounds 1) the document is unilateral and not bilateral in nature and is not signed by the plaintiff 2) the nature of the transaction between the parties is not agreement of sale and but loan transaction, and the documents are obtained only by way of security for the due repayment of amount Rs.5000/- + Rs.5000/- received as loan by the defendant from one Mothilal who is non else than brother of PW1/the plaintiff's husband. 9. The learned counsel for the defendant has in support of his contention that the document to be enforceable shall be bilateral and not unilateral in nature has cited the following authorities (i) 2004 (4) LW 186 R.Chinnadurai V. S.Rajalakshmi and (ii) 2001 (3) MLJ 52 in Pushpa Bai V. Dr.Williams and others. 10. The plaintiff has in support of his contention that it can be unilateral promise by vendor and the principle of mutuality is not recognised under Section 20(4) of the Specific Relief Act 1963 cited the following authorities AIR 1978 Allahabad 212 in lalji and others V. Ramji seth; 1990 (2) LW 50 Madras in R.Ramaswamy V. Seethammal and AIR 1971 Calcutta 341 (V.58 C72) in Raheshyam Kamila V. Sm.Kiran Bala Dasi and others. 11. It is true that the High Court has in the authorities cited by the defendant expressed two different views on the aspect https://hcservices.ecourts.gov.in/hcservices/ whether the document must have two parties and be signed by both or whether the agreement signed by one of the two parties can be enforced or not and whether the plea of want of mutuality is recognised under Specific Relief Act. 12. Whereas the observation of the High Court of Allahabad, Madras and Calcutta are based on the ratio laid down by the earlier Division Bench judgment of Allahabad High Court in AIR 1965 Allahabad 83 in Shree Ram V. Ratanlal. Wherein it is held "It is true that to be specifically enforced a bilateral contract must be mutual, that is to say, either party against the other. It is based on the principle of equity that the law will not permit a party to enforce a contract which the other party could be not have enforced against him. But this doctrine has no application to the unilateral promise for which the promisee has already received consideration. In such a case the party seeking to enforce the promise has already performed his obligations and no question of enforcing the contract against him can arise" (Rakhama Sitaram Ghadge V. Laxman Sitaram Ghadge, AIR 1960 Bom. 105; Ramdas Rae V. Brindaban Ram, AIR 1931 All 113; Fazalddin Mandal V. Panchanan Das, AIR 1957 Cal. 92). 13. Our High Court also in the judgment reported in 2004 (4) LW 186 (cited supra) on the defendant side is of the view that though an agreement must have two parties and both are to sign the same to make it agreement there may be exceptions for this basic necessity under exceptional circumstances. The High Court has having found that the agreement in dispute in the case before the same does not fall under exceptional case decided that the same is unenforceable. In the other case reported in 2001 (3) MLJ 52 (cited supra) cited on the side of the defendant the High Court denied the enforceability of the document mainly on the ground that the same is not signed by one of the parties to the agreement. The High Court, while doing so, observed that there is no consensus ad idem between the parties for want of his signature or want of any other indication regarding the consensus ad idem. 14. In my considered view, considering the relevant provisions under Section 20(4) of Specific Relief Act 1963, the view expressed by our High Court in the earliest judgment reported in 1990 2 LW 15 in R.Ramasamy V. Seethammal can be safely relied upon. It is true that our High Court has in other judgments relied on by the defendant reported in AIR 1998 Madras 169 in S.M.Gopal Chetty V. Raman @ Natesan held it otherwise. But the same stands factually distinguishable. In the other case the unsuccessful plaintiff having not been party to the agreement is held disentitled to enforce the same against other party and the suit for specific performance is hence dismissed through out. However, the High Court has in the same judgment observed that the agreement in order to be mutual shall impose obligations on both parties and if the present case is viewed in the light of above legal https://hcservices.ecourts.gov.in/hcservices/ preposition the document satisfies and complies with such legal requirement. Though the document Ex.A1 is signed by one of the parties, the same is subjected to certain terms and conditions which imposes obligations upon both parties and the obligation imposed upon the buyer is that he shall pay the balance sale consideration within two years and the buyer shall incur the expenses for purchasing stamp paper and to pay advocate fees. Thus having regard to the nature of the document and the recitals contained therein the defendant cannot be permitted to question the enforceability of the document on the ground of lack of mutuality. 15. Regarding the second ground it is true that the defendant seriously denied the nature of the transaction and has also produced Exs.B1 to Ex.B4 in support of his contention that the Mothilal who is the brother of plaintiff's husband and father of one Ashokchand is in the habit of obtaining similar document by way of security for the loan transaction. The appreciation of the pleadings raised herein would reveal that the defendant has in his written statement admitted that the nature of the document executed between the parties is one that of agreement of sale, but denied the circumstances under which and the intention with which it came to be executed. That being so, the burden is upon the defendant to prove the same. However, the conduct of the defendant in putting forth different theories in his written statement and in the witness box would compel this court to reject the defence raised herein against the enforceability of Ex.A2 agreement. 16. The defendant has in the written statement clearly and categorically admitted the nature of the document and his knowledge about the nature of the document at the time of signing the same whereas the defendant has in the witness box come forward with the different theory denying any knowledge of the nature of the document and execution of the same. Such new theory introduced in the witness box has to be necessarily disbelieved. Had it been true, the defendant could have by summoning the said Mothilal examined him as one of the witnesses on his side. Though the defendant has in this context raised serious objection as if the plaintiff's husband is not entitled to depose on behalf of the plaintiff and on the non examination of the plaintiff as one of the witnesses adverse inference ought to have been raised against her. 17. In this regard the perusal of the records reveal, that the plaintiff's husband is examined as PW1 only after obtaining due permission from the trial court. Further the plaintiff's husband- PW1 is also cited as one of the identifying witnesses of the executant before the registrar in Ex.A1 the continuation of which is Ex.A2 as such he cannot be treated as total stranger to the transaction in question. Further, the law laid down regarding non examination of the defendant in the judgment of the Supreme Court reported in 1999 AIR SCW 1129 in Vidhyadhar V. Mankikrao and another is not applicable to the facts of the present case. In the https://hcservices.ecourts.gov.in/hcservices/ case decided by the Supreme Court, the defendant did not state the facts pleaded in the written statement on oath in the trial Court and avoided the witness box so that he was not cross examined and non examination of the defendant is hence held adverse to his claim. Similar situation is dealt with by our High Court in the judgment reported in AIR 1998 Madras 169 (cited supra). However as the present case stands factually distinguishable and as the plaintiff husband-PW1 is now found to have participated in the execution of A1 in different capacity, his examination in the place of plaintiff need not be rejected. 18. As already referred to the defendant failed to summon and examine Mothilal. But he produced Ex.B2 to Ex.B4 documents to show that identical documents are obtained on earlier occasions and that the documents are cancelled at the instance of the other party and the defendant subsequently sold one of the items which is the subject matter of Ex.B2 and Ex.B3 in favour of 3rd parties. But the defendant has in both documents produced on his side and in Ex.A2 referred to the earlier sale agreement of the year 1980 and admitted the failure on his part to execute sale deed. The recitals in the document if viewed in the light of the contradictory versions put forth by him in the written statement and in the witness box about the nature of the document signed by him and his failure to take any steps to summon Mothilal as one of the witnesses on his side would compel this court to disbelieve his theory regarding different nature of transaction and the purpose for which the documents came to be executed. 19. The next ground to be considered is the plea of raise of the property value which is the subject matter of the agreement. The defendant contended that the subsequent increase in land value is to be properly appreciated while considering the discretionary and equitable relief of specific performance. The learned counsel for the defendant in support of such stand relied upon the judgment of the apex court reported in 1997 (1) CTC 628 in Vidyanandam V. Vairavan. The plaintiff has also cited the latest authority of the Supreme Court reported in 2007 10 SCC 231 in PS.Ramakrishna Reddy V. M.K.Bhagylakshmi and another for the different legal proposition that rise in the price of immovable property by itself is not a ground for refusal to enforce a lawful agreement of sale. It is contended by the learned counsel for defendant that the sale price mentioned in the agreement is Rs.35,000/- where the actual value of the property was during the relevant point of time is Rs.1,50,000/- and the same shall be considered as one of the grounds to hold it against the plaintiff's claim. 17. This court is not inclined to accept such defence for the following reasons. Had it been true, that the property is more valuable there need not be two set of documents for obtaining loan to the tune of Rs.10,000/- + Rs.9,000/-. Further the defendant himself during 1984 sold door No.39A for Rs.45,000/- as such the https://hcservices.ecourts.gov.in/hcservices/ contention that this property bearing adjacent door No.39 is of the value of Rs.1,50,000/-, during 1984 cannot at all be accepted. Further the Supreme Court has in the judgment reported in 1997 1 CTC 628 (cited supra) considered the rise of property value to be one of the grounds to reject the equitable relief by taking into consideration, the delay on the part of the plaintiff to pay the amount and to perform his part of the contract. Whereas in the instant case, there is no such non performance on the part of the present plaintiff and the demand for execution of the sale is made only after the payment of entire balance sale consideration as such the authority cited above is not applicable to the facts of the case. 18. Though the defendant has at this juncture sought to deny the genuineness of Ex.A3 stamp receipt containing the signature of the defendant evidencing payment of balance sale consideration of Rs.25,000/- the courts below on the failure of the defendant to come forward with any consistent theory about his contention regarding the nature of the documents in which his signature are allegedly forcibly obtained have rightly negatived the same. 19. Thus for the discussion held above, this court is of the view that the defendant has not made out any ground much less valid ground against the findings of the courts below about the enforceability and binding nature of Ex.A2 agreement of sale as such the judgment and decree of the courts below does not call for interference. The substantial questions of law are accordingly answered against the defendant. 20. In the result, the Second Appeal stands dismissed, considering the peculiar circumstances of the case no order as to costs. tsh Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The District Judge, Ootacamund. 2.The Sub Judge, Ootacamund. + 1 cc to Mr. S. K. Rakhunathan, Advocate SR No.35154 PA(CO) SR/9.11.2011 Judgment in S.A.No.24 of 1998 https://hcservices.ecourts.gov.in/hcservices/