IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18/09/2003 CORAM THE HONOURABLE MR.JUSTICE N.V.BALASUBRAMANIAN and THE HONOURABLE MR.JUSTICE T.V.MASILAMANI A.S.No.936 of 1988 1. Jayaraman (died) 2. Ranjitham 3. K.Muthu Rathinasamy 4. Arjunan 5. Subbathal 6. Palaniammal 7. Selvathal 8. Ganesan (Minor) 9. Indumathi(Minor) (Appellants 8 & 9 represented by their mother, N.F. Palaniammal, 6th appellant) (Appellants 5 to 9 brought on record as LRs. of deceased first appellant. ... Appellants. -Vs- 1. Dalavai Nagarajan 2. R.B.Ram Manohar 3. N.S.Balan 4. Palanisamy ... Respondents. Appeal filed against the judgment and decree dated 22.7.1988 in O.S.No.136 of 1984 on the file of Sub Court, Dharapuram. !For appellants :: Mr.V.K.Muthusamy, Sr.counsel for Mr.Meenakshisundaram. ^For respondents :: Mr.R.Ashokan, for R1. N.A. for R3 & R4. R-2 .. Given up. :JUDGMENT N.V.BALASUBRAMANIAN,J. This is an appeal filed by the defendants 2 to 5 in a suit for specific performance which was decreed by the learned Subordinate Judge, Dharapuram in O.S.No.136 of 1984, by judgment dated 22.7.1988. 2. The plaintiff is the first respondent in the appeal who instituted the suit for specific performance of the agreement of sale and for directing the defendants to deliver possession of the suit property to the plaintiff subject to the sixth defendant delivering possession of Door No.44-A on 1.3.1985 and for other reliefs found in the plaint. The case of the plaintiff is that the plaintiff and the first defendant entered into a written agreement of sale on 25.2.1984 wherein it was agreed that the first defendant would sell the suit property to the plaintiff for a consideration of Rs.1 lakh and a sum of Rs.2 0,000/- was paid as advance towards the sale price on the date of agreement itself. It is stated that three months time was fixed for the payment of balance of sale consideration of Rs.80,000/- for the execution of the deed of sale by the first defendant in favour of the plaintiff and for delivery of possession of the suit property. It is stated that the plaintiff was always ready and willing to perform his part of the contract. It is also averred that the sixth defendant was a tenant of a portion of the property bearing door No.44-A and he instituted a suit in O.S.No.140 of 1984 on the file of District Munsif, Dharapuram against the owner of the property, namely, the first defendant as well as the plaintiff seeking the relief of permanent injunction which resulted in a compromise decree on 4.3.1984 and according to the compromise decree, the sixth defendant has to deliver the portion of the suit property in his possession on 1.3.1985 and until then, he would pay the rent of Rs.12/- per day to the plaintiff and certain other conditions were also imposed. Hence, the relief of possession was claimed against the sixth defendant. The seventh defendant has also been impleaded on the ground that he is the husband of the third defendant and the defendants 2,4,5 and 7 are doing business in the name and style, 'Indhira Stores' in a portion of the property bearing door No.44 and the seventh defendant has been added as a party out of abundant caution as the suit has also been filed for possession. It is stated that the defendants 2 to 5 claimed to have purchased the property from the first defendant on 2.5.1984. It is stated that the aforesaid sale deed does not affect the rights of the plaintiff under the suit agreement of sale dated 25.2.1984. According to the plaintiff, the defendants 2 to 5 purchased the property after they were fully aware of the suit agreement of sale dated 25.2.1984. It is stated that the defendants 2 to 5 wanted to purchase the property and requested the plaintiff to give up his rights under the suit agreement in respect of Door No.44, but the plaintiff did not accede to the request and after that, the defendants 1 to 5 and 7 colluded together and brought about the sale deed dated 2.5.1984. It is also stated that the defendants 2 to 5 are not bona fide purchasers and they have not paid the money in good faith and without notice of the suit agreement and the defendants 2 to 5 were aware of the suit agreement. It is stated that the plaintiff was always ready and willing to perform his part of the contract and after coming to know about the collusive sale deed executed by the first defendant in favour of the defendants 2 to 5, the plaintiff caused a notice to be issued for the execution of sale deed in his favour on or before 25.5.1984, but the first defendant evaded the receipt of the notice and the defendants 2 to 5, though served with the notice, have not sent any reply. Hence, the plaintiff has filed the suit on 11.6.1984 for specific performance and also for the relief of possession. 3. The first defendant in the suit remained ex parte and so also the sixth defendant. The defendants 2 to 5 have filed a common written statement and according to their written statement, the defendants 2 to 5 entered into an agreement of sale of the suit property with the first defendant on 18.11.1983 and paid an advance of Rs.30,000/- to the first defendant for which a voucher/receipt has been given by the first defendant. It is their specific case that the first defendant colluded with the plaintiff and created a bogus and ante-dated agreement of sale and the plaintiff was not having the capacity to pay the advance amount of Rs.20,000/-. According to the defendants 2 to 5, the plaintiff is not having the capacity to pay Rs.1 lakh. It is their case that out of the collusive action between the first defendant and the plaintiff the suit agreement has been entered into. It is stated that after the issue of notice by the plaintiff through his advocate, the fifth defendant met the plaintiff at Dharapuram and set forth their sale from the first defendant for which the plaintiff replied that only at the instigation of the first defendant he created the ante-dated agreement and he is not going to press the same. It is stated that believing the words of the plaintiff the defendants 2 to 5 did not send any reply. It is stated that a varthamanam was executed by the sixth defendant in favour of the defendants 2 to 5 on 2.5.1984 to the effect of delivering of possession of the building bearing door No.44A. It is their case that the sixth defendant is not in possession of the property. It is stated that the defendants 2 to 5 are not concerned with the suit in O.S.No.140 of 1984 on the file of District Munsif, Dharapuram. It is state d that the defendants 2 to 5 entered into the sale agreement with the first defendant even on 18.11.1983 and this sale agreement is prior to the suit agreement of sale. It is also stated that they had no knowledge of the suit agreement of sale. It is stated that the sale deed in their favour has been acted upon. It is also stated that the plaintiff is not having the capacity to pay the balance of sale consideration. It is their specific case that the suit agreement is ante-dated. The defendants 6 and 7 have filed separate written statements. 4. Learned Subordinate Judge, Dharapuram framed necessary issues for consideration and came to the conclusion that the case pleaded by the defendants 2 to 5 that there was an agreement of sale dated 18.11.1983 was not correct and the sale deed was executed by the first defendant in favour of the defendants 2 to 5 to defeat the rights of the plaintiff under the suit sale agreement. He also came to the conclusion that the defendants 2 to 5 were not transferees in good faith. He also held that the agreement dated 18.11.1983 was not a genuine agreement and the said agreement was created by the first defendant along with the defendants 2 to 5 and they were not bona fide purchasers for value. Learned trial Judge also held that the plaintiff has the capacity to pay the advance amount and the plaintiff would be entitled to the relief of specific performance and also to the relief of possession. It is against the judgment and decree, the present appeal has been preferred. 5. We heard Mr.V.K.Muthusamy, learned senior counsel appearing for the appellants and Mr.R.Ashokan, learned counsel for the first respondent. After hearing the arguments, we formulate the following points for consideration: 1. Whether the agreement of sale dated 18.11.1983 entered into between the first defendant and the defendants 2 to 5 is a genuine and valid one? 2. Whether the suit agreement of sale dated 25.2.1984 is a true, valid and genuine agreement? 3. Whether the agreement dated 18.11.1983 is prior in point of time to the suit agreement dated 25.2.1984? 4. Whether the plaintiff is entitled to the relief of specific performance? 5. If the Court holds that the agreement dated 18.11.1983 is not established, whether the defendants 2 to 5 are bona fide purchasers for value and without notice of the suit agreement dated 25.2.1984? 6. Though separate points have been framed, the points that arise in point Nos.1 to 5are connected and therefore we propose to deal with them all together. Mr.V.K.Muthusamy, learned senior counsel submitted that the agreement dated 18.11.1983 (Ex.B-18) is true and valid. He submitted that the trial Court was not correct in its view that the stamp vendor, Vengidusamy, who was examined as P.W.3, has not sold the stamp papers on 18.11.1983 to the fourth defendant in the suit. He submitted that the trial Court has relied upon the evidence of P.W.3 where he has denied his signature in Ex.B-18 and also stated that he has not entered the serial number 5508 in Ex.B-18 and also stated that the name Muthurathinasami found in the deed was not written by him. P.W.3 has also deposed that the date 18.11.1983 in Ex.B-18 was not written by him. He has stated that he has not sold to the fourth defendant the stamp papers used for preparing Ex.B-18. We have carefully gone through the evidence of P.W.3. P.W.3, in his evidence, has admitted that it is the duty of the stamp vendor to write on the stamp paper the serial number and the name and address of the purchaser of the stamp paper. He has also admitted that the entries found in page No.9 (Ex.B-21) of the Stamps Sales Register were written by him. He has stated that he would not write false accounts in the Stamps Sales Register. He has also admitted that on 19.12.1984 he has handed over the balance stamp papers to one Paramasivam under Ex.B-20 when he ceased to carry on the profession of stamp vendor. He has admitted that the Revenue Divisional Officer has inspected the Stamps Sales Register and signed on 5.6.1984 under Ex.B-19. 7. We have seen the Stamps Sales Register of P.W.3 and in page 9 of that register there are entries bearing serial Nos.5507 and 5508 which indicate that two stamp papers of Rs.10/- each were sold to one Muthu Rathinasamy of Chelampalayam. We have noticed that P.W.3 admitted that all entries found in page-9 of the Stamps Sales Register were written by him and the Revenue Divisional Officer concerned has verified the book on 5.6.1984 and certified the same. It is also in evidence that only on 19.12.1984 he handed over the register along with the balance unsold stamp papers to one Paramasivam and the register was in the custody of Paramasivam from 19.12.1984. Though as against the entry in Serial Nos.5507 and 5508, there is slight smudging in the name of the purchaser, after P.W.3 admitted in his crossexamination the entries found in page-9 of the said Register were written by him, it must be held that he has written the name found in that page. Further, P.W.3 was not examined by the plaintiff on reexamination with reference to the particular entry found in page-9 of the register. 8. Learned Subordinate Judge has given undue importance to the slight smudging on the name found in serial Nos.5507 and 5508 and taking note of the statement of P.W.3 that he has not sold the stamp papers to the fourth defendant, he came to the conclusion that the stamp papers were not purchased on 18.11.1983. We are unable to approve the reasonings of the learned Subordinate Judge as the learned Subordinate Judge has overlooked the evidence of P.W.3 as he has admitted that all the entries found in page No.9 of the register were written by him and he was not in the habit of writing false entries and the Revenue Divisional Officer verified and countersigned the register on 5.6.1984. Apart from that, P.W.3 himself has stated that it is the duty of the Stamp Vendor to write the name and address of the purchaser of the stamp papers and also the serial number on the stamp papers sold by him, and therefore that part of the evidence of P.W.3 that the signature found in Ex.B-18 is not his signature and he has not written the name, Muthu Rathinasamy of Chelampalayam and serial No.5508 and date 18.11.1983 found in the document is not acceptable as it goes against his own admission that it is his duty to write the name and address of parties to whom stamp papers were sold and the entries found in page-9 of the register were written by him. Hence, we are not able to sustain that part of the finding of the learned Subordinate Judge that P.W.3 has not sold the stamp papers bearing the date 18.11.1983 to the fourth defendant. Though the view of t he learned Subordinate Judge that P.W.3 has not sold the stamp papers dated 18.11.1983 is not correct, yet, it is for the defendants 2 to 5 to prove that the agreement was actually entered into on 18.11.1983 between them and the first defendant and that has to be established only by other independent evidence. 9. The defendants 2 to 5, to prove that the agreement was entered into on 18.11.1983, have examined the second defendant as well as the fifth defendant as D.Ws.1 and 2 and one Palani, who was one of the attestors of the agreement as D.W.3. Before examining the evidence let in on behalf of the defendants, we are of the view that it would be necessary to examine the pleadings. The defendants 2 to 5, in their written statement, have pleaded that the defendants 2 to 5 entered into an agreement of sale of the suit property with the first defendant on 18.11.1983 and paid an advance of Rs.30,000/- for which the first defendant issued a voucher or receipt. But, there is no specific reference to the written agreement of sale in paragraph-4 of the written statement. Though in paragraph-7 of the written statement the defendants have stated that they entered into an agreement of sale on 18.11.1983, in the sale deed executed by the first defendant in their favour dated 2.5.1984 (Ex.B-1) there is no reference to the agreement of sale dated 18.11.1983. Further, in the earlier part of the written statement they have stated that a voucher was issued for the receipt of the advance payment of Rs.30,000/-. We are of the view that the question of issue of a separate voucher would normally arise when there is no written agreement of sale as the agreement itself would evidence the payment and receipt of advance amount. Though the deed of sale refers to an agreement, it is significant to notice that the defendants have not specifically referred to the agreement of sale dated 18.11.1983 in the deed of sale. 10. It is true that, in normal circumstances, the fact that the agreement of sale (Ex.B-18) was not shown in Ex.B-1 sale deed may not raise any suspicion regarding the existence of the agreement dated 18.1 1.1983. But, when there are other surrounding circumstances to show that Ex.B-18 could not have been entered into on 18.11.1983, the burden is very heavy on the defendants to prove the existence of the agreement Ex.B-18 and each one of the circumstances would assume importance. The defendants have chosen to rely on two witnesses, D.Ws.1 and 2 who were parties to the agreement. One of the attestors to the agreement, who was examined as D.W.3, has not spoken about the attestation of the document. The defendants have also not produced evidence to show that they actually paid the advance amount of Rs.30,000/- on 18.11.1983. The voucher or receipt, which they referred to in the written statement was not produced. There would be some evidence to show that necessary money was withdrawn from some bank or other institution for the purpose of payment of Rs.30,000/- to the first defendant on 18.11.1983. The defendants have not established that the money was actually tendered on 18.11.1983 as there is no evidence at all for the said payment. The recital in Ex.B-18 that the amount of Rs.3 0,000/- was paid is also not proved as the attesting witness D.W.3 has clearly stated that he was not present at the time of execution of the agreement of sale, Ex.B-18. 11. Another interesting aspect is that as soon as the plaintiff became aware of the deed of sale dated 2.5.1984, he issued a notice dated 15.5.1984 to the defendants 1 to 5 and the plaintiff has produced the postal acknowledgment cards in Exs.A-5 to A-7 for the service of notice on the defendants 2, 4 and 5. The third defendant is the wife of the seventh defendant and the seventh defendant in his written statement has admitted that he was helping his wife in getting the sale deed jointly with the defendants 2, 4 and 5. It can be safely assumed that the third defendant was aware of the notice, Ex.A-3 as she is a joint purchaser along with the defendants 2, 4 and 5. The defendants 2 to 5, even after the receipt of Ex.A-3 notice, have kept quiet and if there was an earlier agreement of sale dated 18.11.1983 which formed the basis for the deed of sale dated 2.5.1984, the normal reaction would be to reply the notice stating that their agreement was prior in point of time. Though the fifth defendant (D.W.2) has stated that he met the plaintiff after the receipt of notice, the plaintiff ( P.W.1) has denied the same and there is no acceptable evidence to prove that the fifth defendant met the plaintiff after the receipt of notice in Ex.A-3. 12. Now, let us consider the evidence of D.Ws.1 to 3. As far as D.W.1 is concerned, in the chief-examination, he has stated that the agreement was entered into on 18.11.1983 and the agreement was written in a lodge, but he was not able to remember the name of the lodge where the agreement was written. He was also not able to state who was the scribe, who wrote the agreement and who were the attesting witnesses to the agreement dated 18.11.1983. His evidence is not acceptable for the reason that Dharapuram is a town and it is difficult to believe that he was not able to remember the lodge in which the agreement was executed. It is also relevant to mention that D.W.1 has stated that the fourth defendant has purchased stamp papers, but the fourth defendant has not entered into the box and deposed regarding the date of purchase of the stamp papers. D.W.1 was also not able to remember as to who are the attesting witnesses to the document. The evidence of D.W.1 is also vague as he has not stated as to who negotiated with the first defendant regarding the agreement of sale. 13. As far as D.W.2 is concerned, though in his chief examination he has spoken about the agreement, he has stated that the sale price agreed was Rs.1,50,000/-, (Even assuming that the amount of Rs.1,80,000/- mentioned in his deposition is wrongly mentioned for Rs.1,50,00 0/-), he has stated that the talk regarding the agreement took place only at Indhira Stores. There is a clear contradiction between the evidence of D.W.1 and D.W.2 as D.W.1 has deposed that the agreement was executed at a lodge whereas D.W.2 in his evidence has stated that the agreement was arrived at Indhira Stores and he has not stated that the agreement was executed at a lodge. 14. As far as D.W.3, one of the attesting witnesses, is concerned, he has, in his cross-examination, categorically admitted that he was not present at the time when the amount was agreed to between the parties and he signed the agreement when the document was brought to him for signature by one of the agreement holders. The other attesting witness was also not examined. The evidence let in on behalf of the defendants regarding the execution of the agreement of sale do not inspire much confidence as there is a conflicting version regarding the place where the agreement was entered into and there is also no proof when the agreement was entered into as the attesting witness who was examined as D.W.3 has clearly stated that he was not present at the time when the agreement was entered into, but signed the agreement later when it was brought to him for his signature. 15. It is also relevant to mention here that in the agreement of sale dated 18.11.1983 (Ex.B-18) the parties have stated that the amount of sale consideration was arrived at Rs.1,50,000/- and a sum of Rs.3 0,000/- was received as advance in the presence of the attesting witnesses. The above statement implies that the attesting witnesses were present at the time of execution of the agreement. But, the attesting witness who was examined as D.W.3 has clearly stated that he was not present at the time when the agreement was entered into and he signed the agreement only when the document was brought to him for signature. D.W.3 has also stated that he was not aware of the name of the other attesting witness and the person who brought the document to him for signature. If the statement of D.W.3 is accepted, the statement made in Ex.B-18 that a sum of Rs.30,000/- was paid in the presence of attesting witnesses is not true. In our view, the evidence let in on behalf of the defendants regarding genuineness of the document, Ex.B-18 has to be read in the light of the circumstances mentioned earlier. 16. Now, let us consider the circumstances that happened earlier. We have noticed that the defendants 2 to 5 have not produced the voucher or the receipt issued for the payment of advance on 18.11.1983 by the first defendant. A reading of the agreement dated 18.11.1983 shows that the first defendant has received a sum of Rs.30,000/- as advance in the presence of attesting witnesses and the defendants have not established as to what was the necessity for the issue of a receipt or voucher for the advance amount received, if an agreement had been entered into acknowledging the payment of advance of Rs.30,000/-. Mr.V.K.Muthusamy, learned senior counsel submitted that though there is no reference to Ex.B-18 in the sale deed (Ex.B-1), the sale deed substantially refers to the agreement and therefore he submitted that the non-mention of the date of agreement of sale, namely, 18.11.198 3 in the sale deed would not cast a doubt on the genuineness of the agreement dated 18.11.1983 (Ex.B-18). In normal circumstances, as mentioned earlier, the non-mention of the date of agreement in the sale deed may not assume much importance, but when there is a dispute about the existence of agreement, the non-mention of the date of agreement in the sale deed assumes importance. 17. Though Mr.V.K.Muthusamy, learned senior counsel submitted that the mention of the date of agreement of sale in