Mallika, Vinoth Kannan, Selvam and Ananthi vs Mariappan

S. Rajeswaran, J.—The defendants in O.S. No. 75 of 2004, on the file of the Sub-Court, Tuticorin are the appellants before this Court.

For the sake of convenience, the parties are referred to as per their rankings in the suit.

Suit in O.S. No. 75 of 2004 was filed by the respondent/plaintiff for specific performance of a sale agreement dated 16.11.2003. The case of

the plaintiff is that an agreement was entered into on 16-11-2003 by one P. Kasirajan who was the husband of the first defendant and father of the

defendants 2 to 5, to sell the suit property for an amount of Rs. 2,00,000/- and received from the plaintiff a sum of Rs. 15,000/- towards advance

on 16-11-2003 itself. The plaintiff also paid a sum of Rs. 65,000/- to the said P. Kasirajan on 19-11-2003 as per the Clause in the sale agreement

and an endorsement was also made in the sale agreement. After receiving the second installment of Rs. 65,000/- towards further sale

consideration, the said P. Kasirajan had given the original sale deed of the suit schedule property to the plaintiff. Further a sum of Rs. 5,000/- was

also paid by the plaintiff to the said P. Kasirajan on 27-12-2003 and the same was also endorsed in the sale agreement. That apart, another sum

of Rs. 5,000/- was paid by the plaintiff for which a separate receipt was given by the said P. Kasirajan. The original parent documents were also

given by the first defendants'' husband to the plaintiff. As per the terms of the agreement the said P. Kasirajan should execute the sale deed within

four months from the date of execution of the above sale agreement. Though the plaintiff was ready and willing to pay balance sale consideration

and the same was offered to the said P. Kasirajan, the said P. Kasirajan was hesitant to execute the sale deed pursuant to the sale agreement. In

the meantime, the said P. Kasirajan died on 27-02-2004 leaving behind the defendants as his legal heirs. When the plaintiff approached the legal

heirs of said P. Kasirajan and expressed his readiness and willingness to pay the balance sale consideration pursuant to the agreement dated 16-

11-2003 entered into by the said P. Kasirajan, the legal heirs of the said P. Kasirajan were not inclined. Hence, the above suit for the aforesaid

prayer.

A Written statement has been filed by the first defendant refuting the allegations made in the plaint, which was adopted by the other defendants.

According to D-1, her husband P. Kasirajan borrowed a sum of Rs. 90,000/- from one Kannan of Tuticorin. The said Kannan charged exorbitant

interest and coerced her husband to pay the entire money with interest. On 24-02-2004, the said Kannan along with two others came with blank

stamped papers and other papers and threatened D1 and her husband to sign in the stamped papers and also to affix their signatures in each page.

They threatened that if D1 and her husband did not do as was told, they would be killed along with the family members. In such circumstances,

signatures and thumb impressions were forcibly taken by the said Kannan who intimated that they would again come on 27-02-2004 to get back

the money. If the money is not paid on that day, D1 and her husband should come to Registrar Office to put their signatures. Because of this

incident, her husband committed suicide on 27-02-2004 by taking poison. Therefore, according to D1, her husband never executed the suit

agreement and both her husband and D1 did not even know who the plaintiff is. She further stated that the value of the suit property is Rs.

5,00,000/- and therefore the suit is for dismissed. Hence, they prayed for dismissal of the suit.

On the basis of the above pleadings, the trial Court namely, the Sub-Court, Thoothukudi framed the following issues:

1) Whether the defendants are liable to execute the sale deed after receiving the balance sale consideration?

2) To what other reliefs the plaintiff is entitled?

On the side of the plaintiff, he was examined as PW.1 and two other persons were examined as PW.2 and PW.3 and Exhibits A-1 to A-15

were marked on the side of the plaintiff. On the side of the defendants, D1 was examined as DW.1 and two other persons were examined as

DW.2 and DW.3. Exs.B1 to B11 were marked on the side of the defendants. The trial Court on the basis of the oral and documentary evidence

found that PW.2 is the person who signed the sale agreement as a witness and the person who typed the sale agreement was examined as PW.3.

The case of the defendants is that no money was received in pursuance of the sale agreement and the same was created under coercion. This was

disbelieved on the ground that DW.1 herself in her cross examination accepted that Kannan and two others did not threaten them as contended by

them. Therefore, on the basis of the evidence adduced before the Court, the trial Court decreed the suit as prayed for. Aggrieved by the same, the

defendants filed A.S.No.19 of 2007 before the learned District Judge,/Fast Track Court No. 2, Thoothukudi. The first appellate Court framed the

following issues:

1) Whether the respondent has proved the case to get the relief of specific performance as prayed for?

2) To what other relief?

The first appellate Court also while re-considering the oral and documentary evidence adduced on both sides, found that the case of the

defendant that the document was a created one under coercion by obtaining signatures in the blank papers was not at all proved. It also found that

DW-1 herself in her cross-examination contradicted what she said earlier. Therefore, upholding the sale agreement executed between the father of

the first appellant and the defendant, the first appellate Court concurred with the findings of the trial Court and consequently dismissed the Appeal.

As against the concurrent judgments, the defendants filed the above second appeal raising the following substantial questions of law in the

Memorandum of Grounds:

a) Whether the Courts below are justified in law in holding that Ex.A1 is not hit by coercion and undue influence in view of complaint given to

Superintendent of Police under Ex.B1?

b) Whether the Court below is justified in law in relying on contradiction Ex.B9 FIR ignoring other evidence in granting the discretionary relief of

specific performance?

c) Whether the Court below is justified in law in granting the relief of specific performance since the suit was laid beyond the time stipulated under

Ex.A1 agreement?

I have heard the learned Counsel for the appellants and the learned Counsel for the respondent/plaintiff. I have also gone through the entire

records, in particular, the judgments of both the Courts below.

I find from the records that the suit was laid by the plaintiff for enforcing the sale agreement entered, into by one P. Kasirajan who was the first

defendant''s husband and father of the defendants 2 to 5. Further more, a part payment has also been made towards the sale consideration and

original and parent documents were also handed over to the plaintiff. However, the contention put forth by the appellants is that the sale agreement

is not genuine and the signatures and thumb impressions of D-1 and her husband were obtained on blank papers under coercion. Both the Courts

below found that the obtaining signatures and thumb impressions from DW1 and her husband on blank stamped papers by one Kannan and two

others was not at all established by the defendants. In fact both the Courts below found the oral evidence of DW1 herself is not supporting her

case of coercion. Whereas the plaintiff by examining PW.2, a witness to the sale agreement and PW.3, the typist who typed the sale agreement

proved that the sale agreement was validly executed. A person who is alleging coercion and threat should prove the same on her own and the onus

is heavily on the person who puts forward a case who has been coerced. This question is a purely a question of fact and the same is to be

established by letting in acceptable evidence. In the present case, not only acceptable evidence was let in to prove that the agreement is vitiated by

quercison but also the evidence of DW.1 herself is also contradictory and not supporting her case. Therefore, this Court exercising power u/s 100

CPC cannot go in to the factual aspects in detail especially when no substantial question of law arises for consideration. Under the guise of

substantial question of law some grounds have been raised by the appellants in the memorandum as if it is a first appeal.

Hence, I do not find any merits in the second appeal and the same is Dismissed. No costs. Consequently ,connected MP.No.1 of 2008 is also

dismissed.