G. Selvaraj vs Adhimoolam, Muniappan @ Bhaskaran and Elangovan

M.M. Sundresh, J.—The plaintiff, who is the appellant herein, has preferred the present appeal against the judgment and decree made in

O.S. No. 944 of 1987 dated 25.07.1991, on the file of the learned V Additional Subordinate Judge, Trichy. The suit has been filed by the plaintiff

seeking the relief of specific performance, directing the defendants 1 to 3 to execute the sale deed in favour of the plaintiff. The defendants 2 & 3

are the minor children of the first defendant and the fourth defendant, who has been impleaded is the subsequent purchaser. The said suit has been

partly decreed by the Court below granting the relief of specific performance in so far as 1/3rd share of the first defendant is concerned, rejecting

the same in so far as 2/3rd shares of the defendants 2 and 3 are concerned.

Challenging the same, the plaintiff has preferred this appeal and the first defendant has preferred a cross appeal challenging the portion of the

decree by which the plaintiff was granted 1/3rd share of the suit properties.

The case of the plaintiff in a nutshell is as follows:

The suit property belongs to the first defendant absolutely measuring an extent of 1.46 acres in T.S. No. 1037 situated in Srirengam Village. The

said suit property came into the hands of the first defendant by virtue of a Will dated 20.01.1994 and also, by virtue of a compromise decree in

O.S. No. 390 of 1948. The first defendant entered into a mortgage deed with the mother of the plaintiff, Govindammal for a sum of Rs. 35,000/-

on 07.11.1983. Thereafter, the first defendant has entered into an agreement, agreeing to sell the suit property representing himself and also,

guardian for the defendants 2 and 3 on 28.11.1984. Out of Rs. 52,560/- the amount of Rs. 35,000/- covered under the mortgage is included and

the first defendant has received further sum from the plaintiff and accordingly, there is only a balance sum of Rs. 1,280/- payable at the time of

execution of the registration of the sale deed. The further case of the plaintiff is that the plaintiff is ready and willing to execute the sale deed but the

first defendant has refused to execute the sale deed for himself and for the defendants 2 & 3 and under those circumstances, a notice was issued

on 25.04.1997, calling the first defendant to comply with this obligation under the agreement. However, the first defendant sent a belated reply

notice on 15.06.1987, stating that the claim is barred by limitation since the plaintiff has not discharged the mortgage deed and the plaintiff is not

ready and willing to execute the sale deed. The plaintiff is ready and willing to pay the amount, the suit is within time and the mortgage deed with his

mother has been discharged. It is stated in the plaint that the suit property absolutely belongs to the first defendant and he is bound to execute the

sale deed on behalf of the defendants 2 and 3, since the defendants 2 and 3 are the minor children of the first defendant and the fourth defendant

has been impleaded is the subsequent purchaser, pending the suit.

A written statement has been filed by the first defendant stating that it is true that the defendant has received a sum as mentioned in the plaint and

endorsed the same on the back of the agreement and it is also true, that a sum of Rs. 1,280/- is till due as per the agreement. It is further

contended that the plaintiff is not ready and unwilling to perform the form of contract and the agreement cannot be executed for the remaining 2/3rd

shares of the defendants 2 and 3, since the agreement is not in the benefit of minors.

The defendants 2 and 3 filed written statement stating that the suit property is an ancestral property and the first defendant has no right to sell the

shares of the defendants 2 and 3. It is further averred that the agreement is not for the benefit of the minors and the agreement cannot be enforced

in full. Therefore, the defendants 2 and 4 prayed for the dismissal of the suit.

On behalf of the plaintiff, P.W.1 and 2 have been examined and Exs.A1 to A15 have been marked. However, on behalf of the defendants,

nobody was examined and no documents have been marked. The fourth defendant, who is a purchaser remained absent and has been set ex-

parte. P.W.1 is the plaintiff in the suit. P.W.2 is the witness to Ex.A1, sale agreement.

Ex.A1 is the agreement entered into between the plaintiff and the first defendant. Ex.A3 is the registered mortgage deed executed by the mother

of the plaintiff and the first defendant. Ex.A9 is the sale deed dated 01.11.1988, executed by the first defendant for himself and on behalf of the

defendants 2 and 3 in favour of the fourth defendant selling the suit property, pending the suit.

The learned Counsel for the appellant submitted that a reading of Ex.A2 and Exs.A11 to A15 would show that the suit property is the self

acquired property of the first defendant. Ex.A2 is the copy of the decree by which, the first defendant has got the suit property. According to the

learned Counsel inasmuch as there is no dispute that the first defendant got the suit property by virtue of grant under a Will and also, in pursuant to

the decree in O.S. No. 390 of 1948, the suit property cannot be termed as joint family property. Further, according to the learned Counsel under

Exs.A11 to A15, the first defendant has treated the suit property as self acquired property alone. It is further submitted that the mere fact Ex.A1

has been executed by the first defendant for himself and for defendants 2 & 3 would not make the suit property as a joint family property. Hence,

according to the learned Counsel the suit property is a self acquired property. The learned Counsel further submitted that inasmuch as the suit

property is a self acquired property, the embargo contemplated u/s 8 of the Hindu Minority and Guardianship Act, 1956, would not come in the

way of the suit being decreed. It is further submitted that if the blending of a self acquired property with the joint family property has not been

established, then the suit property will have to be treated as a self acquired property. According to the learned Counsel, mere enjoyment of the suit

property in common cannot be construed as blending, resulting in the joint family property in the absence of any intention on the part of the person,

who owns such property. The learned Counsel also submitted that in view of the admission made by the defendants about the execution of the

document, the suit is liable to be decreed.

The learned Counsel has further submitted that a clear evidence has been given that the amount covered under the mortgage will have to be

taken care of by the plaintiff and in the present case, it is the defendants, who have not proved that the other legal heirs of the plaintiff''s mother has

made any claim for their respective shares. It is also submitted that the defendants 1 to 3 have not made any demand by issuing the notice for

discharging the mortgage and there is no evidence to show that the fourth defendant has also discharged the mortgage deed even though he has

undertaken to discharge the same under his sale deed. Hence, the learned Counsel submitted that it cannot be said that the plaintiff has not

discharged the mortgaged amount. The learned Counsel for the plaintiff relied upon the judgment reported in 1968 SC 1278 (G. Narayana Raju

(dead) by his legal representative v. G. Chamaraju and Ors.), Naina Pillai and Others Vs. Daivanai Ammal and Another, , K.V. Narayanan Vs.

K.V. Ranganandhan and Others, in support of their case to contend that blending has to be proved by the intention of the party concerned and a

mere act of physical mixing with the joint family or ancestral property would not amount to blending resulting in the character of the property

changing into one of joint family property. The learned Counsel further submitted that such intention can be discovered from the action and conduct

of the first defendant and it is absent in the present case on hand and hence, the suit has to be decreed.

The learned Counsel also relied upon the judgment reported in Elango Vs. Poongodi and Others, in support of her case, to contend that

�Kartha� being the natural guardian can alienate the share of the minors in a joint family property in the interest of the minors and for such

alienation, the permission of the Court is not necessary. The learned Counsel relied upon the judgment reported in Vidhyadhar Vs. Manikrao and

Another, to contend that when a party to a suit fails to enter into a witness box and produce the evidence which a party is not in possession, then

the adverse inference can be drawn against the party concerned. The learned senior counsel appearing for the first respondent submitted that on a

mere reading of the evidence it is not proved that the plaintiff has not discharged the mortgage deed. According to the learned Counsel when an

agreement has been entered into a specific condition that the mortgage deed will have to be discharged and when such a mortgage deed has not

been discharged a suit for specific performance cannot be decreed in the absence of the said discharge. The learned senior counsel also relied

upon the judgment reported in 2008 (3) TNCJ 658 (Mad) (P.K. Jayakumar v. Padamchand Jain and Anr.), wherein, it has been held that when

an obligation is not fulfilled by the plaintiff by discharging the loan mentioned in the agreement, the relief of specific performance cannot be granted.

The learned Senior counsel relied upon the judgment reported in A.C. Arulappan Vs. Smt. Ahalya Naik, in support of the said contentions. The

learned Counsel for the respondents 2 and 3 has submitted that the plaintiff cannot contend that the suit property is a self-acquired property.

According to the learned Counsel such a contention is hit by Section 92 of the Indian Evidence Act, 1872. The learned Counsel submitted that

relying upon Ex.A1 and Ex.A3, it cannot go back on the same by taking a stand that the suit property is a self-acquired property of the first

defendant. According to the learned Counsel, the plaintiff being a party to Ex.A1, he is bound by the same. It is further submitted that Ex.A3

having been admitted by the plaintiff and the said document, being the registered document the plaintiff cannot go against the same since the said

documents also states that it is executed by the first defendant on his own behalf and also, on behalf of the defendants 2 and 3 as held. Hence, it is

prayed that the appeal has been dismissed.

I have heard the learned Counsels for the appellant as well as the learned Counsel appearing for the respondents and I have also considered

the arguments in the appeal as well as the cross appeal.

In the present case on hand, it is not in dispute that Ex.A1 has been executed by the first defendant. The first defendant has also filed the

written statement accepting the contents made in Ex.A1 including the various payments. A reading of Ex.A1 would show that the first defendant

has executed the said document on his own behalf and also, on behalf of the defendants 2 and 3. The said document also shows that the sum of

Rs. 35,000/- covered under the mortgage deed with the plaintiff''s mother has to be credited as part of consideration for the sale amount. Hence, a

mere reading of the said agreement would show that the said agreement has been executed by the first defendant on his own and also on behalf of

the defendants 2 & 3 as well. As contended by the learned Counsel for the respondents, it is not been specifically averred by the plaintiff that the

said document has been executed by including the defendants 2 and 3 by way of abundant caution. There is also no evidence on behalf of the

plaintiff in support of such contentions. When a party makes a statement contrary to the document which has been admitted by the parties then the

onus is heavily on the party to prove the same. Moreover, as contended by the learned Counsel for the respondents in view of the embargo u/s 92

of the Indian Evidence Act, 1872, a party to a document cannot be allowed to wriggle out of the same, except on the ground that of fraud, sham

and nominal. Hence, in so far as the contention of the learned Counsel for the plaintiff that the suit property is a self-acquired property, this Court is

of the opinion that the said contentions cannot be accepted. Therefore, the judgment relied upon by the plaintiff regarding the requirements to be

satisfied to prove the blending cannot be made acceptable to the present case on hand.

In so far as the contention of the learned Counsel for the appellant that even assuming the suit property is a joint family property then the first

defendant is duty bound to execute the sale deed, since Section 8 of the Hindu Minority and Guardianship Act does not prohibit such agreement

and consequent sale. This Court is of the opinion that the said contentions merits acceptance has held by the High Court in the judgment reported

in Elango Vs. Poongodi and Others, that a �Kartha� of the family, being the natural guardian can alienate the joint family property including

the shares of the minors. Therefore, in such a contingency, the prior permission of the Court is not required. As observed earlier, in the present

case, the defendants have not examined anybody in support of their case except the bare averment in the statement the defendants have not come

forward to let in evidence in support of their case. It is also not been averred by the defendants 2 & 3 that the first defendant has acted contrary to

the interest of the minors except by saying that there was no necessity for the benefit of the minors. It is well settled principle of law that when a

party, who is in possession of the facts has not come before the Court and place the same for consideration, then adverse inference can be drawn

against such a party. In the present case, the defendants 1 to 4 have not come before the Court and prove the facts on oath before the court

below. Therefore, this Court is of the opinion under such circumstances, an adverse inference can be drawn against the party concerned. Similarly,

in the judgment reported in 2009 (1) MLJ 67 (Prabhakaran and Ors. v. Ranganathan and Ors.), this Court has held that when a party shuns the

witness box even though he or she was expected to figure as witness, then adverse inference could be drawn. Therefore, this Court is of the

opinion that even assuming the suit property is a joint family property, the plaintiff is entitled to get a decree. More so, in view of the failure of the

defendants to come before the Court and to give evidence in support of their case.

In so far as the discharge of a loan mentioned in the mortgage deed is concerned, this Court is of the opinion that the plaintiff in his evidence as

mentioned earlier Ex.A1 states that the amount of Rs. 35,000/- is a part of the sale consideration. Further, a reading of evidence of P.W.1 would

show that the said amount of Rs. 35,000/- is inclusive of the sale consideration. The evidence of P.W.1 that he has got brother and sister and no

receipt has been given for discharge of the said loan cannot be construed to hold that the loan has not been discharged. It is not the case of the

defendants that the brother and sister of the plaintiff have made any demand for their respective shares. Similarly, the defendants have not asked

the plaintiff to discharge the said loan on the ground that it has not been discharged. Moreover, it is seen that even the fourth defendant is not said

to have been discharged the said loan inspite of the clause mentioned in his sale deed. Therefore, this Court is of the opinion that the contentions of

the learned Counsel for the defendants that in the absence of non discharge of the loan, the suit is liable to be dismissed cannot be accepted.

In so far as the plea of ready and willingness is concerned, the plaintiff has specifically averred the same in his plaint. The plaintiff has also

stated the same in his evidence. It is further to be seen that the amount required to be paid is only a sum of Rs. 1,280/-. Therefore, this Court is of

the opinion that it should be construed in the absence of any pleadings that the plaintiff is not ready and willing, coupled with the evidence of

P.W.1, that the plaintiff is always read and willing to execute the sale deed. It is also further seen that the reply notice itself has been given belatedly

after a period of nearly two months.

In a suit for specific performance, the conduct of the defendants will also have to be seen. In the present case, admittedly, the defendants 1 to

3 have not gone to the witness box to depose in support of their contention after filing the written statement. The fourth defendant, who is said to

have purchased the suit property from the defendants 1 to 3 has been set ex-parte and he has also not come to the Court. The fourth defendant is

said to have purchased the suit property, pending the suit, the sale deed has been executed by the first defendant on his own behalf and also, on

behalf of the defendants 2 and 3. The said fact has not been placed before the Court by the defendants but it is the plaintiff who has filed an

application for amendment and also, the said sale deed. The Hon''ble Supreme Court in the judgment reported in 2009 (2) CTC 858 (Vimal

Chand Ghevarchand Jain and Ors.) has held that the conduct of the party will have to be seen while deciding the suit. This Court has also held that

in a suit for specific performance when the defendant admitting the signature does not come before the box, an adverse inference can be drawn

against him. Similarly, in the judgment reported in 2008 (3) MLJ 951 (SC) (Silvey and Ors. v. Arun Varghese and Anr.), the Hon''ble Supreme

Court has held that in a suit for specific performance, the conduct of the defendant cannot be ignored while weighing the question of exercising

discretion for decreeing or denying the decree for specific performance. Applying the said judgments, this Court is of the opinion that the conduct

of the defendants would clearly show that the discretion cannot be exercised in their favour. As mentioned earlier, the defendants sold the very

same suit property, pending the suit and the subsequent failure of the fourth defendant to come before the Court also indicates that the case of the

defendants cannot be accepted. It is also further seen that the first defendant after executing Ex.A1, contended that minor shares cannot be brought

up for sale. This Court finds that the very said contentions itself would amply prove the conduct of the first defendant.

Therefore, taking into consideration of the above said facts, this Court is of the opinion that the appeal filed by the plaintiff is liable to be

allowed and the cross appeal filed by the first defendant is liable to be dismissed.

Accordingly, the first appeal is allowed and the cross appeal is dismissed and the judgment and decree of the Court below in so far as the rejection

of 2/3rd shares of the defendants 2 and 3 are concerned is hereby set aside and decreed as prayed for. There shall be no orders as to costs.