Kothai Nachiar vs Vijayalakshmi Ammal and Another

Srinivasan, J.—The only question is whether the agreement for sale put forward by the plaintiff is genuine or whether it was brought out by fraud as alleged by the appellant 1st defendant. The trial court held that the agreement was not genuine, but granted the prayer for alternative relief and directed the 1st defendant to pay the advance received by him. The Appellate Court reversed that conclusion and upheld the genuineness of the agreement and passed a decree for specific performance as prayed for by the plaintiff. Aggrieved thereby, the 1st defendant has preferred this appeal. The first contention of learned counsel for the appellant is that the lower Appellate Court has misdirected itself misinterpreting the provisions of S. 102 of the Indian Evidence Act. According to learned counsel, the said Section can be invoked only if there is no evidence whatever on the side of both parties. But in this case, according to him, evidence has been adduced by both parties and therefore, S. 102 is not applicable. The relevant portion of the discussion is found in paragraph 19 of the appellate judgment. No doubt, the learned Appellate Judge has made a reference to S. 102 of the Evidence Act, which, is my opinion, is not necessary at all. But the further discussion of the facts by the learned Judge is not based on interpretation of S. 102 of the Evidence. Act. The learned Judge has observed that the 1st defendant though having admitted her signature in the document Ex.A.1, stated that it has been obtained by fraud. The learned Judge has stated that there is no evidence whatever to prove the alleged fraud and therefore, the plea of fraud raised by the first defendant cannot be accepted. That part of the discussion and conclusion of the learned Appellate Judge are unassailable.

It is seen that the appellant has not entered the witness box not her husband has given evidence in the regard to prove the alleged fraud. There is no specific plea of fraud at all. In the written statement, it is one of total denial. It is not possible at all to understand what exactly is pleaded by the appellant in the written statement. In paragraph 3 of the written statement of the 1st defendant, it is stated that strictly speaking there is no contract between the plaintiff and the first defendant with reference to the sale of the property. Later on, in the same para, it is stated that it is specifically mentioned that the consent of the other family members and the 1st defendant is necessary for the purpose of the sale. In para-4 it is stated that as agreed to both parties, the consent of the children of the 1st defendant could not be obtained, there is no contract in existence. A search through the entire written statement will be in vain to find out whether there is any specific plea of fraud on the part of the plaintiff or any other person with regard to the execution of Ex.A.2. Curiously, in para 13 of the written statement, an offer is made that the alternative prayer of the plaintiff could be decreed and the 1st defendant is ready to return the money by depositing draft in the Court. If according to the 1st defendant, there was no contract between her and the plaintiff and the contents of Ex.A.2 were not true, there is no question of returning the money paid under Ex.A.2. Ex.A.2 recites that a sum of Rs. 5001/- was paid as advance. The very fact that the 1st defendant had offered to repay that amount shows that the payment of Rs. 5001/- as advance was true.

Ex.A.11 is the reply notice dated 11.12.1981 issued by the lawyer on behalf of the first defendant in reply to the notice dated 4.12.1981 issued by the plaintiff. In that notice, it is stated that the 1st defendant visited Srivil liputhur to complete the transaction, but the plaintiff was not prepared to complete the deal, but requested further time due to paucity of funds and to obtain the consent of the children of the 1st defendant. Thus, it is clear that the genuineness of the agreement was not disputed either in Ex.A.11 or in the written allotment. As the 1st defendant has not chosen to enter the witness box and give evidence on her behalf, there is no question of the Court accepting the plea of fraud. The evidence of P.W.2 shows, that the agreement was executed by the 1st defendant in a proper manner and there is no fraud in the execution of the same at all.

Once the fraud is eschewed from consideration, there can be no difficulty at all in holding that the plaintiff is entitled to the specific performance as prayed for by her. The appellate Court has duly dealt with the matter in a proper perspective and has come to the conclusion that the plaintiff is entitled to the relief as prayed for.

Learned counsel for the appellant argues vehemently that several reasons given by the trial court in paragraph 14 of its judgment and the reasoning found in paragraphs 15 and 17 of the trial court are not adverted to by the appellate Court and those reasons are sufficient to negative the relief of the specific performance as has been done. There is no merit in this contention. A perusal of paras 14, 15 and 17 of the trial court''s, judgment shows that the learned Subordinate Judge has indulged in a special pleading on behalf of the 1st defendant/appellant. He has acted only on the basis of some unwarranted suspicion and rejected the positive evidence adduced on the side of the plaintiff. He has relied upon some irrelevant materials for coming to the conclusion that the agreement is not genuine. Ultimately, the learned Subordinate Judge has observed at the end of paragraph 17 of his judgment that the document Ex.A.2 was not signed by the plaintiff and therefore, it is not enforceable. The said conclusion is absolutely erroneous. For coming to the said conclusion, the learned Subordinate Judge has placed reliance on the judgment in the case of K.Sheikkder Sahib v. Maruthamuthu Pillai (1987(2) Civil Law Journal 62).

The report of the said case is not made available to this Court. So, it is not possible to say in what context the observations extracted in the judgment of the trial Court were made. But the doctrine of mutuality will not have any application in the present case. A perusal of Ex. A.2 shows that all the terms were definitely agreed to by both parties. There is no doubt that the document is enforceable as against the 1st defendant. There is no want of mutuality in this case. In Ex. A.2, reference has been made to the payment of Rs. 5001/- as advance out of the total consideration of Rs. 21,000/- and that from the date of the agreement, the property was put in enjoyment of the plaintiff. Those terms are sufficient to prove that the document equally is enforceable as against the 1st defendant. In the circumstances, there is no merit in this Second Appeal and it is dismissed. There will be no order as to costs.