C. Pugal Arasan vs M. Congress Pon Pandian

P.R. Shivakumar, J—Mr. S. Muthal Raj, advocate has filed vakalat for the appellant.

Today, the Second Appeal comes up for admission and the arguments advanced by Mr. S. Muthal Raj, learned counsel for the appellant are heard. Copies of the Judgments of the Courts below and copies of the other records produced in the form of typed-set of papers are also perused.

The Second Appeal arises out of a decree dated 22.10.2013 made by the learned III Additional District Judge, Tirunelveli in Appeal Suit No. 71 of 2012, confirming the decree dated 31.01.2008 made by the learned Principal Subordinate Judge, Tenkasi in Original Suit No. 106 of 2006.

The said suit was filed by the respondent herein/plaintiff for the relief of specific performance based on an agreement for sale, admittedly entered into by the appellant and respondent herein. The said agreement has been produced and marked as Ex. A. 1 in the original suit.

Though the appellant herein/defendant admitted the execution of Ex. A. 1-agreement for sale of the suit property for a sum of Rs. 3,37,500/- and received a sum of Rs. 1,00,000/- as advance on 24.07.2006, the appellant/defendant denied his liability to execute a sale deed in fulfillment of the obligations cast on him under the suit sale agreement. The grounds on which the appellant/defendant wanted to disown his liability are:-

(i) He is not the absolute owner of the suit property; and

(ii) A suit filed by the sister of the appellant/defendant for partition is pending.

Based on the above said pleadings, issues were framed and in the trial that followed party witnesses alone appeared as P.W. 1 and D.W. 1 respectively. The respondent/plaintiff produced as many as 11 documents marked as Exs.A. 1 to A. 11 on his side, whereas, the appellant/defendant produced two documents marked as Exs. B. 1 and B. 2.

The learned trial Judge, on an appreciation of evidence, came to the conclusion that the respondent herein/plaintiff had established his entitlement to get the relief of specific performance as prayed for and that none of the pleas made by the appellant/defendant would be enough to relieve him from fulfilling the obligations cast on him under the suit agreement for sale. Accordingly, the learned trial Judge decreed the suit with costs granting the relief of specific performance directing the appellant herein/defendant to execute a sale deed in terms of the suit agreement for sale in favour of the respondent herein/plaintiff.

The said decree dated 31.01.2008 came to be confirmed in an appeal, wherein the same was challenged by the appellant herein/defendant before the learned lower Appellate Judge, namely, III Additional District Judge, Tirunelveli in Appeal Suit No. 71 of 2012. In the said appeal, before the lower Appellate Court, one Vimala Devi, sister of the appellant herein/defendant filed an application in I.A. No. 69 of 2013 to get her impleaded as a party in the said appeal. The learned lower Appellate Judge holding that the said Vimala Devi was a third party to the agreement and she was not claiming title either through or under anyone of the parties to the agreement and hence, her plea for her impleadment in the appeal could not be sustained. Accordingly, the Interlocutory Application was also dismissed. It is as against the said decree of the lower Appellate Court dated 22.10.2013, the present Second Appeal has been preferred.

The defendant in the original suit, who suffered a decree for specific performance based on Ex. A. 1-agreement for sale, has come to this Court after unsuccessfully prosecuting an appeal before the lower Appellate Court. As such, the present Second Appeal is against the concurrent Judgments of both the Courts below.

It is not in dispute that Ex. A. 1-agreement for sale was executed by the appellant/defendant in favour of the respondent/plaintiff on 24.07.2006, agreeing to sell the suit property for a sum of Rs. 3,37,500/- and a sum of Rs. 1,00,000/- was received by him from the respondent/plaintiff as advance on the date of agreement itself. Just a few days after two months from the date of agreement, the appellant/defendant chose to issue a notice under Ex. A. 4 stating that he was not in a position to execute the sale deed, since his brother was disputing the partition effected between them, on the premises that no passage was left to reach the tomb of the father of the defendant and no space was also earmarked as a passage to reach the portion of the brother of the appellant/defendant. For the said notice, the respondent/plaintiff issued a reply contending that the appellant/defendant, who wanted to wriggle out of the commitment was coming forward with a cock and bull story as if he was not having a clear transferable title to the suit property. In addition to giving such a reply under Ex. A. 5, he also issued a notice calling upon the appellant/defendant to come and execute the sale deed after receiving the balance sale consideration. Copy of such notice has been marked as Ex. A. 6. It was also followed by another notice dated 13.10.2006 for which, a reply was sent by the appellant/defendant on 14.10.2006 under Ex. A. 8.

The defence plea of the appellant/defendant was turned down by both the Courts below on the following grounds:-

(i) The defendant having chosen to enter into an agreement for sale claiming himself to be the absolute owner of the suit property cannot set up a defect in his title as a defence in a suit filed by the plaintiff for specific enforcement of the agreement for sale.

(ii) The alleged defect in title was also a story invented by the appellant/defendant to wriggle out of the contractual obligation.

(iii) The suit said to have been filed by the sister of the appellant/defendant could not be projected as a valid plea of defence, when the respondent/plaintiff had been appraised of such pendency of the suit and still the respondent/plaintiff was prepared to get a sale deed from the appellant/defendant disregarding the alleged defect in his title.

In fact, the first ground on which the defence plea of the appellant/defendant was rejected by the Courts below is based on the principle of estoppel. The preponderance of evidence both oral and documentary adduced by the respondent herein/plaintiff shows that there was a partition between the appellant/defendant and his brother-Dhana Natamai and that relying on the partition not only the appellant/defendant, but also his brother-Dhana Natamai were dealing with the properties allotted to them in the partition, by executing sale deeds and mortgage deeds in favour of other persons, namely Singaraja, Pandi Nadar and Porgunadeeparaj. As against the said documentary evidence adduced on the side of the respondent/plaintiff, no document, excepting the interested testimony of D.W. 1, came to be produced to show that there was no such partition between the parties and the appellant/defendant and his brother were not dealing with the properties as the properties are allotted to them in the partition. On a proper appreciation of evidence, the trial Court and on a proper re-appreciation of evidence, the lower Appellate Court arrived at the concurrent finding that the alleged defect in the title was not substantiated and it was only a ruse to wriggle out of the commitment made by him contractually.

Even if it is assumed that there is a defect in the title of the appellant/defendant, it shall be open to the respondent/plaintiff to repudiate the contract on the ground of absence of absolute transferable title of the appellant/defendant. On the other hand, when the respondent/plaintiff is prepared to get a sale deed in accordance with the terms of agreement for sale despite the fact that the appellant/plaintiff has pleaded that others have disputed his title, such a defence based on the defect in his title shall not be available to the appellant/defendant. When the plaintiff purchases the property after having been appraised the alleged defect in the title of the appellant/defendant, the principle of estoppel against the purchaser shall get attracted and in no way the appellant/defendant is going to be affected or prejudiced.

Even the pendency of the suit filed by the sister of the appellant/defendant cannot be set up as a ground for not performing the obligation of the appellant/defendant under the suit sale agreement, unless he has been restrained by a Court of law by an order of injunction not to alienate or encumber. It is not the case of the appellant/defendant that he was restrained by an order of injunction by the Court from making any alienation or creating encumbrance in respect of the suit property in the suit filed by his sister for partition. If at all the suit filed by the sister of the appellant/defendant ends in a decree in her favour, the result will be that the transferable interest of the appellant/defendant shall get reduced. If it so happens, then the respondent/plaintiff can claim right under the sale to the extent of the interest held by the appellant/defendant, even though such sale be made pursuant to a decree passed by the Court and it shall not escape the principle of lis pendens.

For all the reasons stated above, this Court comes to the conclusion that neither the trial Court, nor the lower Appellate Court committed any mistake or error in arriving at a conclusion that the defence plea of the appellant herein/defendant got to be rejected as untenable and that the respondent/plaintiff was entitled to the relief of specific performance as prayed for. It should also be noticed that balance sale consideration has already been deposited to the credit of the suit and the same has been referred to in the Judgment of the lower Appellate court. There is no merit in the Second Appeal. No substantial question of law is shown to have arisen for consideration in the Second Appeal.

In the result, the Second Appeal fails and the same deserves dismissal at the threshold. Accordingly, the Second Appeal is dismissed. However, since the Second appeal is dismissed at the stage of admission itself, there shall be no order as to costs. Consequently, connected Miscellaneous Petition is also dismissed.