BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 21/09/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.524 of 1997 and C.M.P.(MD).No.5826 of 1997 Auadai Sangu ... Appellant Vs. 1.K.Durairaj 2.Madasamy Thevar 3.T.R.Subbiah ... Respondents PRAYER Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 24.09.1996 made in A.S.No.11 of 1994 on the file of the Court of Subordinate Judge, Tuticorin, confirming the judgment and decree dated 30.11.1993 made in O.S.No.18 of 1993 on the file of the Additional District Munsif of Tuticorin. !For Appellant ... Mr.J.Pothiraj ^For 1st Respondent ... No Appearance For 2nd Respondent ... Mr.M.P.Senthil For 3rd Respondent ... Mr.K.Srinivassan :JUDGMENT
This second appeal is directed against the judgment of the lower
appellate Court, namely Court of Subordinate Judge, Tuticorin, dated 24.09.1996
passed in A.S.No.11 of 1994, confirming the judgment and decree of the trial
Court (Court of Additional District Munsif, Tuticorin) dated 30.11.1993 passed
in O.S.No.18 of 1993.
2. The plaintiff in the original suit is the appellant in the
present second appeal. He had filed the original suit, namely O.S.No.18 of 1993
on the file of the trial Court, for the relief of specific performance of the
contract based on the suit sale agreement dated 02.05.1991. In the plaint, it
was contended that the suit property belonged to the first respondent/first
defendant who entered into an agreement for sale of the property to the
appellant/plaintiff on 02.05.1991; that the agreed sale price was Rs.7,000/- and
the entire sale consideration was paid on the date of agreement itself and that
the first respondent/first defendant agreed and undertook to execute the sale
deed as and when the appellant/plaintiff would call upon him to do so. It was
the further contention of the appellant/plaintiff that though the
appellant/plaintiff had performed his part of the contract on the date of
agreement itself by making payment of the entire sale consideration and
thereafter, was ready and willing to get the sale deed executed and registered
in his name at his cost, the first respondent/first defendant who evaded the
execution of the sale deed subsequently executed a power of attorney in favour
of the second respondent/second defendant who in turn on the strength of the
said power of attorney executed a sale deed in favour of the third
respondent/third defendant. It was also contended by the appellant/plaintiff in
his pleadings that the third respondent/third defendant was not a bona fide
purchaser, who purchased the suit property without notice of the existence of
the suit sale agreement and hence his right could not be protected. According to
the plaintiff, on the date of agreement itself, possession of the suit property
was delivered to the appellant/plaintiff in part performance of the contract and
he continued to be in possession and enjoyment of the suit property till the
date of filing of the suit.
3. The suit was resisted by all the respondents/defendants.
Respondents 1 and 2/defendants 1 and 2 filed a common written statement, whereas
the third respondent/third defendant filed a separate written statement.
Respondents 1 and 2/defendants 1 and 2 in their written statement admitted the
execution of the suit sale agreement, but denied the correctness of the recital
found in the agreement regarding passing of consideration and delivery of
possession in part performance of the contract. They have admitted that such
terms had been incorporated in the agreement and knowing fully well that such
terms had been incorporated in the agreement, the first defendant affixed his
signature in the suit agreement. However they contended that the parent deed and
possession of the property were not delivered to the appellant/plaintiff, as it
was informed by the appellant/plaintiff after the agreement was signed by the
parties that he did not have the money with him at that point of time to be paid
to the first respondent/first defendant and that he would make payment
subsequently. According to them, since the appellant/plaintiff was not ready and
willing to perform his part of the contract, the first respondent/first
defendant through his power agent (the second respondent/second defendant)
executed a sale deed on 21.12.1992 for a valid consideration in favour of the
third respondent/third defendant and handed over possession of the suit property
to him and that ever since the said date of sale deed, the third
respondent/third defendant was in possession and enjoyment of the suit property
till the date of filing of the suit.
4. The third respondent/third defendant had taken a plea that he was
a bona fide purchaser of the suit property for a valid consideration without
notice of the existence of the suit sale agreement; that he got delivery of
possession of the suit property on the date of purchase itself and that ever
since he purchased the property on 21.12.1992, he continued to be in possession
and enjoyment of the suit property till the date of filing of the suit.
5. With the above said contentions, the respondents/defendants had
prayed for the dismissal of the suit.
6. The trial Court framed as many as six issues and in the trial
that followed two witnesses, including the plaintiff, were examined as P.Ws.1
and 2 and five documents Exs.A-1 to A-5 were marked on the side of the
plaintiff. Four witnesses were examined and two documents Exs.B.1 and B.2 were
marked on the side of the defendants. On an appreciation of evidence, the
learned Additional District Munsif, Tuticorin accepted the contention of the
respondents/defendants that there was failure of consideration; that the plea of
part performance of the contract under Section 53-A of the Transfer of Property
Act, 1882 should be disbelieved and that the appellant/plaintiff was not ready
and willing to perform his part of the contract and hence, he was not entitled
to the relief of specific performance sought for in the plaint. The learned
trial Judge has also held the third respondent/third defendant a bona fide
purchaser without having purchased without notice of the existence of an earlier
sale agreement in favour of the appellant/plaintiff. Based on the said findings,
the suit was dismissed by the trial Court by its judgment and decree dated
30.11.1993. On appeal, the lower appellate Court concurred with all the findings
of the trial Court and dismissed the appeal, confirming the judgment and decree
of the trial Court. Hence the appellant/plaintiff is before this Court in this
second appeal.
7. This Court heard the submissions made by Mr.J.Pothiraj, learned
counsel appearing for the appellant, by Mr.M.P.Senthil, learned counsel
appearing for the second respondent and also by Mr.K.Srinivassan, learned
counsel appearing for the third respondent. The materials available on record
including the judgments of both the Courts have also been perused.
8. At the time of admission, the following substantial questions of
law were framed for determination in the second appeal:
“(i) Whether the plaintiff is estopped from denying the term of agreement
with regard to consideration under Section 91 of the Evidence Act?
(ii) Whether in law the third defendant is a bona fide purchaser for value
without notice?”
9. Advancing arguments on behalf of the appellant, Mr.J.Pothiraj,
learned counsel argued that both the Courts below committed an error in
admitting the oral evidence against the recitals found in the suit sale
agreement regarding passing of consideration and delivery of possession in part
performance of the contract. According to him, the approach made by the Courts
below is against Section 91 of the Indian Evidence Act. It is the further
contention of the learned counsel for the appellant that the third
respondent/third defendant, being a resident of the very same village, was very
much aware of the suit agreement and the possession of the appellant/plaintiff
in part performance of the suit agreement and that the Courts below have
committed an error in simply accepting the interested testimony of the third
respondent/third defendant as D.W.4 and casting the burden on the
appellant/plaintiff to prove absence of notice.
10. The learned counsel advanced an argument that Section 91 of the
Indian Evidence Act is a bar for adducing any oral evidence in proof or in in
disproof of the recitals found in Ex.A.2 regarding passing of consideration and
delivery of possession of the suit property to the appellant/plaintiff.
11. Per contra, the learned counsel for the contesting respondents 2
and 3 contended that both the Courts below correctly applied the principles of
law to the facts of the case and no infirmity or defect could be found in the
approach made by the Courts below and that the concurrent findings of fact
rendered by the Courts below could not be interfered with in the second appeal.
12. In the light of the rival submissions made by the learned
counsel appearing for either party, the above said substantial questions of law
formulated at the time of admission are dealt with as under.
13. It is not in dispute that the suit property absolutely belonged
to the first respondent/first defendant. Admittedly the suit agreement came to
be executed as a mutual agreement between the appellant/plaintiff and the first
respondent/first defendant. It is also admitted by the first respondent/first
defendant that the suit sale agreement dated 02.05.1991 was executed by him
agreeing to sell the suit property to the appellant/plaintiff for a sale
consideration of Rs.7,000/-. The suit agreement Ex.A.2 contains the following
recitals: (i) The entire sale consideration of Rs.7,000/- was paid by the
appellant/plaintiff to the first respondent/first defendant at the time of
execution of the sale agreement; (ii) The possession was delivered to the
plaintiff on the date of agreement itself in part performance of the contract;
and (iii) Parent document, namely sale deed that stood in the name of the first
respondent/first defendant was handed over on the same date to the
appellant/plaintiff. The respondents 1 and 2 contended that even though such
recitals had been incorporated in the sale agreement, actually no such payment
was made either on the date of agreement or subsequently; that the first
respondent/first defendant demanded payment of money immediately after signing
the suit agreement but the appellant/plaintiff expressed his inability to make
immediate payment as he had not brought the cash with him and promised to pay
the amount later and that hence, the first respondent/first defendant refrained
from handing over the parent document. According to the respondents 1 and 2,
possession of the suit property was also not handed over to the plaintiff in
accordance with the recitals found in Ex.A.2 for the very same reason. In order
to substantiate the above said contention raised on behalf of the respondents 1
and 2/defendants 1 and 2, besides examining themselves as D.Ws.1 and 2, they
have also examined one Ramasubbu, one of the attestors of the suit sale
agreement as D.W.3. On the other hand, the appellant/plaintiff chose to examine
himself as P.W.1 and one Muthusamy as P.W.2, contending that the said Muthusamy
was also one of the attestors of the suit sale agreement.
14. Admittedly D.W.3 Ramasubbu was one of the attestors of Ex.A.2
sale agreement. So far as P.W.2 Muthusamy is concerned, it is the contention of
the respondents that the said Muthusamy and one Arunachalam were not the actual
attestors of the suit sale agreement and that they had been subsequently
introduced by the plaintiff in order to defeat the stand of the defendants 1 and
2 regarding payment of the purchase price and delivery of possession in part
performance of the contract. The circumstances relied on by the respondents are:
(i) Only two serial numbers have been written in Ex.A.2 sale agreement as
against which D.W.3 Ramasubbu, and D.W.2 Madasamy Thevar, the second
respondent/second defendant have signed their names as attestors as against
serial numbers 1 and 2; (ii) The signature of P.W.2 Muthusamy has been obtained
in the space above the signature of D.W.3 and the signature of Arunachalam has
been obtained in between the signatures of Ramasubbu (D.W.3) and Madasamy Thevar
(D.W.2-second respondent). No serial number has been assigned against the
signatures of Muthusamy and Arunachalam. Obviously since the serial numbers of
the witnesses had already been written finding no place below the signature of
Madasamy Thevar at Serial No.2 to get the signatures of the above said Muthusamy
(P.W.2) and Arunachalam, the appellant/plaintiff has used the space available:-
(i) above the signature of the first witness and (ii) in between the signatures
of the first and second witnesses to insert the signatures of Muthusamy (P.W.2)
and Arunachalam and that is why assigning serial number to them was avoided,
otherwise the same would result in jumbling of the serial number of the
attestors. (iii) Even though P.W.2 claims to have been present at the time of
execution of the sale agreement and attested the same along with three other
attestors, he was not in a position to say the contents of Ex.A.2. He was not
even able to say the name of D.W.2 in his chief-examination. He referred to him
as a person whose name was not known to him. He has also stated that he was not
aware whether the parent document was handed over at the time of execution of
the sale agreement. According to the evidence of P.W.1, all the four attestors
were present in the place wherein the suit sale agreement was written right from
the beginning till the execution was completed. On the other hand, P.W.2 would
state in his cross-examination that they had started writing the document before
he could reach the place wherein the suit sale agreement was written, namely the
place of the document writer in Kadambur.
15. Taking into consideration the above said aspects, the Courts
below accepted the contention of the respondents/defendants and came to the
conclusion that P.W.2 could not have been present at the time of execution of
the sale agreement; that P.W.2 and Arunachalam were subsequently introduced by
the plaintiff without the knowledge of the first defendant and that the evidence
of P.W.2 in this regard was unreliable. This Court finds no error or infirmity
in the above said finding of the Courts below rejecting the evidence of P.W.2 as
unreliable and unbelievable.
16. So far as passing of consideration is concerned, the respondents
1 and 2/defendants 1 and 2 had taken a consistent stand that the amount said to
have been paid as per the recital found in the suit agreement was not actually
paid; that the appellant/plaintiff had promised to pay the amount immediately
after signing the agreement but after the parties and witnesses signed the
agreement, the appellant/plaintiff informed that he had not brought the money
with him and promised to pay subsequently and that the same was the reason why,
the parent document was not handed over and possession of the property was not
delivered in accordance with the recitals found in the agreement. It is a fact
which cannot be disputed that the suit sale agreement contains a recital to the
effect that parent document was also handed over to the appellant/plaintiff at
the time of execution of the sale agreement. In spite of incorporation of such a
recital in the sale agreement, it is admitted that the parent deed was not
handed over to the appellant/plaintiff. On the other hand, admittedly the parent
deed remained with the first defendant and was handed over to the third
respondent/third defendant, the subsequent purchaser from the first
respondent/first defendant under Ex.B.1. The said parent deed has been marked as
Ex.B.2. The admission indicated above will make it abundantly clear that the
recitals found in the suit agreement regarding the said aspect is not correct.
It makes more probable the case of the respondents/defendants that the parent
deed and possession of the property were not handed over on the date of
agreement since the appellant/plaintiff did not make the payment.
17. Apart from making a clear plea in the written statement,
evidence has also been adduced through D.Ws.1 to 3 to the effect that the parent
deed was not handed over and possession of the property was not delivered to the
appellant/plaintiff as the appellant/plaintiff had not paid the amount quoted in
the suit agreement in accordance with the recital found therein. In unambiguous
terms, all the three witnesses have clearly deposed that the sale price as
recited in the agreement was not paid on the date of agreement. As against such
evidence on the side of the defendants, evidence adduced on the side of the
appellant/plaintiff are:- (i) ipse dixit of the appellant/plaintiff himself as
P.W.1; and (ii) the testimony of P.W.2. It has been pointed out supra that the
evidence of P.W.2 in this regard is unbelievable and unreliable. The other
materials relied on by the learned counsel for the appellant/plaintiff are
Exs.A.3 and A.4. Ex.A.3 is the kist receipt dated 01.01.1993 evidencing payment
of kist just a few days prior to the filing of the suit. A copy of the parent
deed, namely sale deed dated 20.11.1989 was obtained by the appellant/plaintiff
and marked as Ex.A.1. It seems the appellant/plaintiff had applied for the said
certified copy on 28.12.1992, just a few days prior to the filing of the suit,
and obtained the certified copy on the very same date. Though no importance
could be attached to the said documents as it is quite obvious that the
appellant/plaintiff had obtained those documents, just a few days prior to the
filing of the suit, for the purpose of filing the suit. Ex.A.4 is a copy of the
communication addressed by the Tahsildar, Ottapidaram to the
appellant/plaintiff. It is noticed from the said document that an application
made by the appellant/plaintiff for change of patta in his name in respect of
the suit property was rejected by the Tahsildar stating that he could not ask
for transfer of patta before ever he could get the sale deed in his favour. The
said order is dated 11.12.1992. But it has been observed that the application
submitted by the appellant/plaintiff for sub-division did not contain any date.
On the other hand, the chalan attached to Ex.A.4 would show that the payment for
sub-division and change of patta was made on 08.10.1992. The suit agreement was
dated 02.05.1991. The appellant/plaintiff kept quiet till the 8th day of October
1992. But in the month of October 1992, he seems to have made an application to
the Tahsildar for sub-division and change of patta in his name in respect of the
suit property, even before getting a sale deed executed. On the strength of the
sale agreement itself, the appellant seems to have filed an application for
change of patta in his name, a couple of months prior to the filing of the suit,
as an attempt to create record to show as if the property was in his possession
in part performance of the contract for sale. The Courts below have rightly
declined to rely on the said document filed in support of the contention of the
appellant that possession of the suit property was handed over to him on the
date of agreement itself, in part performance of the contract.
18. The questions – “(i) whether the sale price or advance as
recited in dispute agreement was paid to the first defendant on the date of
agreement; and (ii) whether the possession of the suit property was handed over
to the appellant/plaintiff on the date of agreement itself?” – are no doubt
questions of fact. On a proper appreciation of evidence, both the Courts below
have arrived at a conclusion against the appellant/plaintiff and in favour of
the respondents/defendants regarding the said questions of fact. Concurrent
findings of facts cannot be interfered with in the second appeal unless the same
will result in grave miscarriage of justice. With a difficulty of challenging
the said findings on questions of fact, the appellant has come forward, for the
first time, with a plea that the respondents 1 and 2/defendants 1 and 2 were not
entitled to lead evidence against the recitals found in Ex.A.2-sale agreement,
regarding passing of consideration and delivery of possession of the suit
property to the plaintiff and that Section 91 of the Indian Evidence Act
prohibits adducing any oral evidence in disproof of the said recitals. Section
91 of the Indian Evidence Act says that no evidence shall be given in proof of
the terms of the contract or disposition of the property except the document
itself or secondary evidence of its contents, when the terms of a contract or of
a grant or of any other disposition of property have been reduced to the form of
document and in all cases in which any matter is required by law to be reduced
to a form of a document.
19. “Whether a recital in the document regarding passing of
consideration could be a mere acknowledgment of the receipt of money falling
short of a term of the contract of sale or it could be construed as one of the
terms of the contract?” – is the question to be answered in this case.
20. It is now well settled that the recitals regarding payment of
consideration found in a document is not to be construed as a term of the
contract so that the oral evidence in proof of the same or disproof of the same
could be excluded. Illustration – (e) appended to Section 91 of the Indian
Evidence Act itself provides that even in case where a receipt has been issued
for the money paid, oral evidence of the payment could be offered. The recital
found in Ex.A.2 regarding payment of consideration could be construed as
acknowledgment receipt of the amount, in proof of or disproof of which oral
evidence could be adduced. Therefore, the above said argument advanced by the
learned counsel for the appellant, referring to Section 91 of the Indian
Evidence Act, has got to be discountenanced and the first substantial question
of law is accordingly answered against the appellant and in favour of the
respondents.
21. Regarding the question of readiness and willingness on the part
of the appellant/plaintiff to perform his part of the contract, the concurrent
findings of both the Courts below cannot be termed either infirm or defective
much less perverse. If the question of readiness and willingness on the part of
the plaintiff is considered in the light of the above finding that no payment
was made on the date of agreement, the only conclusion that can be arrived at is
that the appellant/plaintiff was not ready and willing to perform his part of
the contract, as admittedly he was not ready to pay the said amount till the
filing of the suit. In addition to that, the conduct of the appellant/plaintiff
in not issuing any pre-suit notice will also go to show that the
appellant/plaintiff was not ready and willing to pay the amount. Hence, there
can be no interference with the findings of the Courts below negativing the
plea of the plaintiff that he was ready and willing to perform his part of the
contract ever since the date of agreement till the filing of the suit.
22. In line with the views expressed above, this Court is of the
considered opinion that the Courts below have rightly held the
appellant/plaintiff not entitled to the relief of specific performance of the
contract as sought for in the plaint. As the appellant/plaintiff had not paid
any amount towards advance, the question of directing refund of the same would
not arise. As against the concurrent finding of the Courts below regarding
readiness and willingness, the appellant has not made out a case for
interference in this second appeal. On that score alone, the second appeal
deserves to be dismissed.
23. So far as the third respondent/third defendant is concerned,
apart from the defences available to the first respondent/first defendant, the
defence of being a bona fide purchaser for valid consideration without notice of
the suit agreement is also available. Such a protection to the bona fide
purchaser is available under Section 19(b) of the Specific Relief Act. As per
Section 19(b) of the Specific Relief Act, the right of a transferee for value
who paid the money in good faith and without notice of the original contract is
protected. When a plea of the subsequent purchaser to the effect that he is a
bona fide purchaser for value in good faith and without notice of the prior
contract is made, it shall be enough for him to get into the box and testify to
that effect. He shall not be expected to lead any further negative evidence to
prove absence of notice. On the other hand, when such a denial is made by a
party making necessary averments in the pleadings and such party testifies by
getting into the box, the same shall be enough to shift the burden on the
plaintiff to prove that such purchaser had notice of the existence of prior
contract, namely the suit agreement.
24. In this case, except the interested testimony of P.W.1 the
appellant/plaintiff himself, there is no other evidence to show that the third
defendant did have notice of the existence of the suit agreement prior to the
date of sale under Ex.B.1 in his favour. D.Ws.1 and 2 have deposed in clear
terms that they did not reveal the existence of the suit agreement to the third
defendant. No other evidence is available on the side of the appellant/plaintiff
to support and corroborate the testimony of P.W.1. On the other hand, the
learned counsel for the appellant would rely on the admitted fact that the
properties adjoining the suit property belonged to the third respondent/third
defendant and contend that he should have got knowledge of the agreement
regarding the suit property. His further contention is to the effect that the
property was sold under Ex.B.1 to the third respondent/third defendant for a sum
of Rs.4,400/- alone, whereas the agreed sale price as per Ex.A.2 was much more,
namely Rs.7,000/- and that the same will give rise to an inference that the
third defendant should have got knowledge of the existence of the suit
agreement. The mere fact that the property was purchased by the third
defendant/third respondent for a lesser amount than the one fixed in the suit
agreement is not sufficient to impute knowledge of the suit agreement to the
defendants prior to or at the time of execution of the sale in his favour. The
Courts below have correctly applied the ratio found in Arunachala Thevar vs.
Govindarajan Chettiar reported in 1977 (Vol.90) LW 543 and came to the
conclusion that the third respondent/third defendant was a purchaser for value
in good faith and without notice of the existence of the suit agreement. The
well considered finding of the Courts below in this regard does not warrant any
interference in this second appeal. Therefore, the appeal is bound to fail in
respect of the second substantial question of law also. There is no merit in the
second appeal and the same deserves to be dismissed.
25. In the result, this Second Appeal is dismissed. There shall be
no order as to payment of costs. Consequently, the connected miscellaneous
petition is also dismissed.
SML
To
1.The Subordinate Judge,
Tuticorin.
2.The Additional District Munsif,
Tuticorin.