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Judgment
K. Sampath, J.—The plaintiff in O.S. No. 71 of 1987 on the file of the District Munsif, Tiruthuraipoondi is the appellant in S.A. No. 13 of
1996. The plaintiff in O.S. No. 70 of 1987 on the file of the District Munsif, Tiruthuraipoondi is the appellant in S.A. No. 926 of 1996. The
respondent is common in both the matters. The cases are also identical in respect of both the appellants. Both the plaints were presented on
23.2.1987. Wherever necessary the difference if any, will be pointed out. In the course of the judgment we will refer to the parties by their names
for the sake of convenience. Vedarabal filed O.S. No. 70 of 1987 against Lakshmi Ammal for specific performance for sale of an extent of 1 acre
46 cents in R.S. No. 195/1 in Kathiripulam Village, Vedaranyam Taluk in Nagai District with mango and coconut trees thereon on the following
averment.
The suit property classified as Manavari Dry belonged to Lakshmi Animal the defendant in the suit and the respondent herein. At the instance of
her sambanthi Manicka Gounder who is the plaintiff in O.S. No. 71 of 1987 Vedambal agreed to purchase the suit property from Lakshmi
Ammal. At that time Lakshmi Ammal was represented by her power of Attorney Holder Duraivel, who was none other than her own son. For the
purpose of selling their properties in India, Lakshmi Ammal and her husband who were in Malaysia constituted, nominated and appointed their son
Duraivel as the power of Attorney Holder. Duraivel negotiated with vedambal through her Sambanthi Manicka grounder and settled the transaction
in respect of the suit properties for a consideration of Rs. 3,942/-. Duraivel indeed actually executed a sale deed for the suit property in favour of
Vedambal on 29.2.1980 after receiving the entire sale consideration on the date of sale itself. Duraivel should have attended to the registration in
the normal course. They should have got the document registered the next day on 1.3.1980. However, 1.3.1980 was declared as local holiday in
Tanjore District due to Mahamaham festival at Kumbakonam the document could not be registered as originally arranged. Duraivel had come on a
short visit. He had only one day left for going back to Malaysia. He left for Madras on 1.3.1980 and immediately left for Malaysia by air. In those
circumstances the sale deed dated 29.2.1980 could not be registered. However, Vedambal was put in possession of the suit properties on
29.2.1980 itself in pursuance of the sale deed executed by Duraivel. She took possession and had the suit property ploughed and transplanted
with casuarina saplings. In the course of her possession Vedambal had also planted 25 coconut saplings besides the existing trees. The casuarina
became ripe for cutting an year prior to the suit namely 1986. She was also negotiating for the sale of standing casuarina to her Sambanthi Manicka
Gounder. By about that time Duraivel had come to the suit village with his wife. He had stayed with Somasundara Gounder the elder brother of
Manicka gounder and the younger brother of Mariappa Gounder. After visiting the suit property and noting that the casuarina plants raised therein
would bring a sizable sum of money entertained dishonest intention of cutting and carrying away the casuarina trees taking advantage of the
imperfect title of the vedambal to the suit lands in view of the non-registration of the sale deed. Manicka Gounder called upon Duraivel on behalf of
Vedambal and requested him to execute a fresh sale deed and thereby perfect the title of Vedambal to the suit lands: Duraivel was not responsive
but gave an impression that he was willing to return the sale consideration of Rs. 3,942/- and take possession of the suit lands from Vedambal.
This was a rude shock to her, therefore, in order to maintain her possession under the unregistered sale deed dated 29.2.1980 filed a suit against
Duraivel in O.S. No. 33 of 1986 before the Sub-Court, Nagapattinam since trespass by Duraivel was apprehended. At the time of the filing of the
present suit the other suit was still pending. The period of 4 months provided in the Registration Act for registration of the sale deed expired even in
the month of June 1980 and the sale deed executed on 29.2.1980 could not be got registered and therefore Vedambal had been advised to treat
the unregistered sale deed dated 29.2.1980 as agreement for sale and file the suit. She had been in possession and enjoyment. She alone had been
paying the land revenue. Virtually she was the owner of the property, the registration of the sale deed being only a statutory formality for the
purpose of conferring a perfect title to Vedambal for the suit lands under the sale deed. She had always been ready and willing to perform her part
of the contract by producing the unregistered sale deed to be presented before the Registering Authority so that Lakshmi Ammal or her Power
Agent could admit the execution of the sale deed and get the sale deed registered. Lakshmi Ammal alone was the defaulting party. Vedambal''s
possession was lawful. She had notice of the fact that Lakshmi Ammal had refused performance of her contract only in the month of February
1986 when Duraivel was in the suit village and attempted to grab possession of the suit lands from her.
The written statement was filed by one Kanagasundaram, S/o Somasundara Gounder in his capacity as power of Attorney Holder of the
defendant. The averment in the written statement are as follows:
There was no arrangement made for sale of the suit property to Vedambal either by the defendant or her Power of Attorney Holder. The suit
property was in the warm cultivation of Somasundaram brother of Lakshmi Ammal''s husband. Out of 1 acre 46 cents in one acre casuarina had
been raised and in the balance 46 cents mango and coconut trees had been raised by Somasundaram. There were mango trees and coconut trees
of 20 years old in the suit property. Lakshmi Ammal had not given any power to her agent to sell either the casuarina or the other trees at any time.
The power given to Duraivel was a joint power given by Lakshmi Ammal and her husband Mariappa. It was given in Malaysia. Duraivel had not
got it validated as per the Indian Stamp Act and therefore Duraivel had no right to sell the property on the basis of that power deed. Even
otherwise, the power was a joint power and Lakshmi Ammal''s husband having died in 1980, the power had lost its validity. Even on this ground
Duraivel had no right to sell or execute any document and register the same. Whatever Duraivel had done on the basis of his power would not bind
Lakshmi Ammal, The case of Vedambal that Duraivel negotiated for sale, executed a sale deed and that sale deed should be treated as an
agreement and she should be given relief was not sustainable. The suit was liable to be dismissed in limine. The other averment in the plaint that the
entire consideration of Rs. 3,942/- had been paid, that the sale deed had been executed and Vedambal had been given possession and that
Duraivel was in a hurry to return to Malaysia, and that he could not complete the registration were all false. The suit property was much more
valuable.
The casuarina raised in the suit property alone had been sold for a consideration of Rs. 13,300/-. Lakshmi Ammal came to know that Manicka
Gounder had cheated Duraivel and made him agree to sell the properties covered in O.S. No. 70 of 1987 and O.S. No. 71 of 1987 for a total
consideration of Rs. 26,387/- that Rs. 8,942/- was paid to Duraivel in cash and for the balance a promissory note for Rs. 17,445/- had been
executed and that if the promissory note amount was also shown in the sale deeds more stamp duty would be payable and therefore the same was
not disclosed but it was however agreed that the entire sum of Rs. 17,445/- would be paid before registration Duraivel trusted the words of
Manicka Gounder. However, Vedambal and Manicka Gounder did not pay the balance amount nor did they make arrangement for payment of
the amount. The document was therefore not registered. Even though Duraivel had offered to complete the registration formality by appointing a
power agent in India, Vedambal and Manicka Gounder did not pay or make arrangement for the payment of the balance consideration and
therefore this was not done. Possession was not taken from Somasundaram and given to Vedambal and Manicka Gounder. It was agreed that
Somasundaram had to cut and remove the casuarina and other trees raised in the property and after receiving the entire balance consideration
possession had to be given and since the balance amount was not paid, there was no question of either Vedambal or Manicka Gounder being
given possession of the property. By efflux of time the document had become barred. It would not be treated as a sale agreement. Even if it was to
be taken as a sale agreement from 29.2.1980 steps should have been taken within three years and therefore the right to treat the sale deed as an
agreement had also been lost. Vedambal would not be entitled to any relief. She would not be entitled even to claim return of the advance paid.
After executing the document Duraivel informed Vedambal that she should pay the balance amount and informed him on the happening of which
he would appoint an agent in India to register the document. It was not as if that the date fixed for registration was declared to be a holiday and
therefore registration could not be done. In any event limitation began to run from 29.2.1980 and the fact the document could not be registered
was known to Vedambal then itself. The casuarina raised in the property had been sold to one Kanagarayan for Rs. 13,300/-. But Vedambal had
issued a notice to Kanagarayan and taking it as an excuse Kanagarayan had not paid the amount to Lakshmi Ammal and Vedambal alone would
be responsible for the loss if any caused to Lakshmi Ammal on this account. At the time the sale deed was executed there were casuarina trees
three years old. After the casuarina had been sold to Kanagarayan, he had removed the casuarina. Vedambal had forcibly removed the trunks of
the trees worth Rs. 2,500/- and she was answerable for this also.
In 1986 Duraivel came to India. However, it was not true to say that he attempted to commit trespass. There was no question of his committing
any trespass as the property was in the possession of Somasunderam. The other things attributed to Duraivel were not true. The suit O.S. No. 33
of 1986 filed by Vedambal was being resisted properly. It was not true to say that the entire sale consideration had been paid. Only Rs. 13,000/-
had been received by Duraivel. Duraivel out of human consideration wrote to Vedambal that if the entire amount with interest from 29.2.1980 was
paid before 29.12.1985 he would execute a sale deed in favour of Vedambal. Even this concession was not taken advantage of by either
Vedambal or Manicka Gounder. In these circumstances, there was no question of executing any sale deed. It was false to say that only in
February 1986 the refusal to execute sale deed by Duraivel came to her knowledge was strange and false. Vedambal knew on the very day that
Duraivel left for Malaysia, that the document could not be registered she ought to have filed the suit within 3 years thereafter. Vedambal had
suppressed the true facts. She had not mentioned about the promissory note executed by Manicka Gounder or the details regarding payment.
Manicka Gounder and Vedambal had not denied about the balance payable for the sale. The suit was liable to be dismissed for suppression of
material facts.
Vedambal filed a reply statement to the following effect. It was not correct to say that the power deed given to Duraivel had not been properly
stamped. The power deed was either with Duraivel or with Lakshmi Ammal, she was bound to produce and prove her contention. She had
admitted that she had authorised her son Duraivel to sell the suit property. Now she was attempting to take unfair advantage of the retention of the
power deed with her by contending that it had not been duly stamped. Since the original power deed was with Lakshmi Ammal and not with
Vedambal, there were a presumption that the power deed was duly stamped. Mariappa Gounder died only after the sale deed dated 29.3.1980. It
could not be contended that the power deed had become invalid on the date of the sale deed. It would also not become invalid by reason of the
death of one of the principals. Vedambal would lead evidence to show that she had paid the entire sale consideration by making remittances to the
Bank to the credit of Duraivel. The various letters written by Duraivel to Manicka Gounder would falsify the contentions of Lakshmi Ammal set out
in her written statement. As early as 17.11.1985 he had agreed to have the name transferred for the suit property if the required sum had been
remitted in the bank. The letters would also prove that possession of the suit property had been given to Vedambal and Manicka Gounder.
On 19.11.1990 Lakshmi Ammal filed an additional written statement slating that Lakshmi Ammal and Manicka Gounder had admitted that the
total consideration for the properties covered in the suits had been agreed as Rs. 26,387/- and the suits ought to have been valued at that amount
and suits were therefore liable to be dismissed for non payment of proper Court fee. After this Vedambal and Manicka Gounder paid the
additional Court fee in the suits.
Identical contentions had been put forward in the other suit O.S. No. 71 of 1987 filed by Manicka gounder. There is a change with regard to
the properties. The items subject matter of the other suit are R.S. No. 201/10 1 acre 41 cents and R.S. No. 199/4 11 cents. On the basis of the
above pleadings the trial Count framed the necessary issues and on the oral and documentary evidence held that the appellant had proved her
case, that she was entitled to specific performance of the agreement for sale, that Lakshmi Ammal had Kept back the Power of Attorney with
ulterior motive, that the various letters written by Duraivel would show that the agreement had not become time barred and that the plaintiff in each
of the suits would be entitled to the relief of specific performance.
Lakshmi Ammal filed two appeals A.S. No. 35 of 1993 against the decision in O.S. No. 70 of 1987 and A.S. No. 36 of 1993 against O.S.
No. 71 of 1987 before the subordinate Judge, Nagercoil who framed the necessary points for consideration and held that Vedambal and Manicka
Gounder had not proved their case, that they had suppressed material facts and had not come to Court with clean hands and that the relief of
specific performance being discretionary they were not entitled to for any relief. So holding by her separate judgments both dated 7.2.1995
allowed the appeals and dismissed both the suits. Aggrieved the present second appeals have been filed.
On the basis of the materials on record the following substantial questions of law arise for decision in both the second appeals:
(i) Whether the suits are barred by limitation.
(ii) Whether the lower appellate court was right in holding that the power given by Mariappa Gounder came to an end immediately after his death
overlooking that the agent namely Duraivel had partly exercised the authority so far as regards such acts and obligations arising from the acts
already done through the agent the power would have validity.
(iii) Whether the lower appellate Court is right in law holding that the suit sale deeds could not be relied upon as agreements for sale.
The lower appellate Court has started on a wrong premise. It is stated that it is for the plaintiff in each suit to establish that Duraivel held a
proper Power of Attorney authorising him to sell the suit property. Apparently, the learned Subordinate Judge has not looked into the pleadings
and in particular paragraph-3 of the written statement which is extracted below:
A bare reading of paragraph-3 would show that the existence of the power of attorney has been admitted. It is not stated that Duraivel her son
was not given power of attorney to sell the property or other properties. It was a joint power and the power was in existence had been admitted.
Parties are close relations. Mariappa Gounder, Manicka Gounder and Somasundara Gounder are brothers. Mariappa Gounder''s wife is Lakshmi
Ammal. Manicka Gounder''s sambanthi is Vedambal. The existence of the power is categorically admitted. The lower appellate Court was clearly
in the wrong in holding that the plaintiff in each of the suits had not established that Duraivel held a proper power of attorney authorising him to sell
the property. The plaintiffs cannot at all be faulted for not producing the power and nor for non-examination of Duraivel. The details given in the
written statement so clearly tally with the correspondence between the Duraivel and the plaintiffs/Vadivelu son of Manicka Gounder. It is not
difficult to see that Duraivel is behind the scene and moving the pieces after making peace with his other cousin Kanagasundaram who is the
present power of attorney holder for Lakshmi Ammal. The lower appellate Court also finds fault with Vedambal and Manicka Gounder for not
seeing the encumbrance. From this it is not possible to make out as to for what purpose the lower appellate Court has stated this, particularly,
when parties are close relatives. The lower appellate Court also finds fault with the plaintiffs for not applying for compulsory registration. This also
clearly overlooks that there was some other arrangement between the parties as would be made known in the course of the judgments. A
comprehensive reading of the written statement would show that it is not the case of Lakshmi Ammal that Duraivel did not have power to sell. She
has with held both the power and Duraivel. In page-6 of her judgment the learned Subordinate Judge in paragraph-6 referred to Exs. A3 and A4
letters by Duraivel to the effect that
and from this she wants to infer that at the time Ex.A1 and A2 sale deeds were executed, there was no power in existence. The lower appellate
Court has clearly overlooked that there could be power given for admitting execution and having documents registered by means of a special
power. What Duraivel says in Ex.A3 is that Vedambal is to send a special power to Duraivel to enable the appointment of ? power agent for
admitting execution and registering the document. That alone was in the contemplation of parties as apparently Duraivel was not in a position to
come to India.
This is a case where there must be a relook into the whole matter not withstanding the compulsive limitations of Section- 100 of the Code of
Civil Procedure.
It has been held in Smt. Sawami v. Smt. Inder Kaur and other (1996 SC 2823) that if the lower appellate Court without focusing its attention
on the weighty reasons advanced by the trial Court and without examining the materials on record in that respect even did not set aside the said
finding of the trial Judge and yet reversed the decree of the trial Judge, then the High Court is entitled to interfere under Section-100 of the C.P.C.
In Surain Singh (Dead) by Lrs. and Others Vs. Mehenga (Dead) by Lrs., it has been held that due to the diverse views of the two Courts and
material evidence and relevant circumstances having not been adverted to by the appellate Court, the High Court is justified in interfering.
In D.S. Thimmappa Vs. Siddaramakka, it has been held that if the first appellate Court fails to draw proper inference from proved facts and
apply law in proper perspective. High Court is justified in drawing proper inference from such proved facts.
In my view, having regard to what is stated already and what is to follow, it is a fit case where powers under Section-100 have to be invoked
for interference. As already noticed the power has been kept back, Duraivel has avoided the box, and a new Power Agent has been appointed.
The learned Counsel for the respondent Mr. Ranga Rathinam was persistently harping on the fact that Duraivel had not been examined by
Vedambal and Manicka Gounder. He was also finding fault with them for not producing the Power of Attorney. In one of the letters to which
reference will be made. Duraivel as late as 1985 had said that the power was still with him. In the written statement there is a specific reference to
the power that the agent had power to deal with the property is not disputed in the written statement. What paragraph-3 of the written statement
says is neither the defendant nor the power of attorney holder arranged for the selling of the property to the plaintiff. However, in the course of the
further averment, this has been given a go-bye and the case is developed in a different way
In AIR 1917 6 (Privy Council) it has been held as follows:
A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract
doctrine of the onus of proof, and failing, accordingly, to furnish to the Courts the best material for its decision. With regard to third parties, this
may be right enough they have no responsibility for the conduct of the suit, but with regard to the parties to the suit it is, in their Lordships'' opinion,
an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their
possession which would throw light upon the proposition"".
It has been held in as follows:
A party in possession of best evidence which would throw light upon the issues on controversy withholding it the Court had to draw adverse
inference against him. The party cannot rely on the abstract doctrine of onus of proof or on the fact that he was not called upon to produce it.
The withholding of the power by Lakshmi Ammal is very material in the instant case and the tenor of the written statement is that the sale deeds
were true, that the agreed price was Rs. 26,387/- for both the properties in the said suits, that Rs. 8,942/- was paid on that day and for the
balance of Rs. 17,445/-Manicka Gounder gave a pronote and this was done to avoid stamp duty and that it was agreed that before the documents
were registered the amount due would be paid. Thus Vedambal and Manicka Gounder cannot be taken to task for non-production of the power
which from the records it is seen was not with either of them. Even other wise, the non-production of the power was immaterial having regard to
the admission in the written statement regarding the terms of the sale. Duraivel had told Manicka Gounder and Lakshmi Ammal that if they paid the
entire balance amount due, he would have the documents registered and get the same done, through the power of attorney holder appointed for
that purpose. Inspite of such an offer made by Duraivel, Manicka Gounder and Lakshmi Ammal had not availed of the offer. They did not arrange
for the payment of the balance. The written statement further states that possession was not taken from Somasundara and given to the plaintiffs,
that Somasundara continued in possession, cut the casuarina and the other trees grown, since the balance amount was not paid and in course of
time the document got barred by limitation. Even if they were accepted as agreements they had got barred by 3 years from 29.6.1980. Such is the
tenor of the written statement.
Now let us have a look at the sequence of events. Exs.A1 and A2 are both dated 29.2.1980. Several letters were written by Duraivel to
Manicka Gounder and his son Vadivelu. Ex.A3 is the first letter and it is dated 4.3.1980. A faint argument was made on behalf of the respondent
that the letters have not been proved. The letters have been admitted in the written statement and even a cursory look at the various letters would
show that they are genuine documents and not bogus ones. Ex.A3 is a letter from Duraivel to his junior paternal uncle Manicka Gounder who is the
plaintiff in O.S. No. 71 of 1987. From Ex.A3 it is seen that Duraivel left Vedaranyam on 29.2.1980 at 7.15 P.M and reached Madras at 7A.M
on 1.3.1980, saw a fair at Madras on 3.3.1980 at 1 P.M. and reached Kualalumpur at 7 P.M. local time on 3.3.1980. The letter specifically asks
Manicka Gounder as to whether the power to register the document had been got ready and if it had been got ready, Manicka Gounder should
send the same to Duraivel. From this it can be safely assumed that the registration of the document could not be done because as contended by
Vedambal and Manicka Gounder 1.3.1980 was a local holiday in Tanjore District and Duraivel left for Malaysia on 29.2.1980. This letter in a
way also clears the other aspect regarding the payment of balance of consideration for which it is admitted on all hands that Manicka Gounder had
given a promissory note, that the parties did not intend to wait for payment of the balance consideration and if only Manicka Gounder and Lakshmi
Ammal had got a special power ready for the purpose of registration it could have been completed then itself. That is to say the registration of the
document did not have to wait for payment of the money evidenced by the promissory note. There are several other things referred to in that letter.
It is of particular significance to note that in Ex.A3 it is stated as follows:
This is following by Ex. A 22 dated 4.4.1980.
This Kanagasundaram is the present power of attorney holder for Lakshmi Ammal. In this letter there is a reference to as to why the casuriana had
not been sold. The last paragraph of the letter is also of some significance.
What is quoted above will be relevant when it comes to whether possession was handed over pursuant to Exs.A1 and A2.
The next letter is dated 8.12.1980. In that Duraivel informs Manicka Gounder that his father Mariappa Gounder died on 4.12.1980. This
settles the position that on the date the sale deeds were executed Mariappa Gounder was alive.
The next letter is Ex.A4 dated 17.11.1985. This is the 4th letter written by Duraivel to Manicka Gounder and the relevant portions are as
under;
Thus it would be clear that Duraivel had taken a promissory note from Manicka Gounder towards balance consideration and he had calculated
interest on the amount due from Manicka Gounder after deducting the amount paid by Manicka Gounder on the various dates. Balance was
arrived at and Duraivel called upon Manicka Gounder to pay the balance on or before 29.12.1986 to enable him to complete the transaction.
E.A 21 is a letter dated 5.9.1985. The relevant portions are as under:
The last of the letters is dated 26.12.1985. This letter is addressed to Vadivelu.
From the above letters it can be easily seen that Duraivel as power of attorney agent of his parents had executed sale deeds in favour of
Vedambal and Manicka Gounder on 29.2.1980. The sale deeds recite that the entire consideration had been paid or had been received by
Duraivel on behalf of his parents. It transpires that the agreed price was Rs. 26,000/- and odd. After receiving the amount the balance amount was
paid in the shape of a promissory note and what remained to be done was the registration of the documents. On 29.2.1980 was ''Masi Maham
which was a local holiday. From the correspondence it would also be evident that pursuant to the execution of the sale deeds under Exs.A1 and
A2 possession also had been handed over to Manicka Gounder and Vedambal. There is a definite reference in one of the letters as to the price of
casuriana being sold in the year 1985 as compared to the price it fetched five years back when it was sold by Duraivel. Even in the documents
Exs. A1 and A2 there is no reference to any casuarina. The case as set out and spoken to by Vedambal and Manicka Gounder appears to be true
that only after removing the casuarina, the property had been sold and thereafter the purchasers had raised casuarina in the property. This is further
strengthened by the fact that Duraivel has made enquiries about the payment of kist by Vadivelu and also his talking about ''waram'' on account of
the documents losing their validity in four months from the date of their Execution Exs.A6 to A10 are kist receipts produced by Manicka Gounder
and Vedambal. Not a single document has been produced on the side of Lakshmi Annual. Thus the theory of Somasundaram and
Kanagasundaram the present power of attorney holders being in possession of the suit properties cannot hold water. Apparently, after purchase
from Duraivel, Vedambal and Manicka gounder had raised casuarina in the suit property which had been cut and removed by Duraivel during his
visit in 1986 and in respect of which Vedambal and Manicka gounder had filed suits for injunction. Some of the letters referred to already speak
eloquent of what happened. As late as December 1985 Duraivel writes to the parties to pay the balance amount due on 26.12.1986. Even before
26.12.1986 Duraivel had come to India and Vedambal and Manicka gounder filed suits to protect their possessions. Refusal to complete the
transaction is therefore known only in the year 1986. Suits having been filed within 3 years from 1986 cannot be stated to be out of time.
Whatever amount that may be due from vedambal and Manicka Gounder, Lakshmi Ammal can recover. It will be an unpaid vendors lien.
It has been held in Madhavan v. Kannammal and 27 other ( 1990 (2) L.W.274) that
.....that it is not open to a plaintiff to abandon his own case and claim relief on the basis of the defendant''s case. That principle can be invoked
only in cases where the plaintiff having foiled to prove the case with which he approached the Court seeks to rely on the pleading of the defendant
to secure a relief and not to cases like the present one where the plaintiff prays for relief on the basis of facts established by the record in the case
even though they are at variance with his pleading.
This principle has been followed in Rajeswari Vs. Dhanammal,
It has been held in Narayan Bhagwantrao Gosavi Balajiwale Vs. Gopal Vinayak Gosavi and Others, a party could be given relief based on the
categorical admission of the other party in the witness box. The admission the best evidence that an opposing party can rely upon, and though not
conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.
At the risk of repetition, it is necessary to note that there was an arrangement between the parties that the sale price for the suit lands was to be
fixed at a consolidated sum of Rs. 26,387/-. The considerations recited in the sale deeds were paid by Manicka Gounder and Vedambal to
Duraivel power of attorney holder of his parents Mariappa Gounder and Lakshmi Ammal on 29.12.1980 and the balance amount agreed to
between the parties. Manicka Gounder executed the promissory note. Documents could not be registered. It does not appear that payment of the
balance consideration was a condition precedent for completing the transaction by registration as would be evident from the letter Ex.A3 written
by Duraivel from Malaysia to Manicka Gounder asking him to send a special power for completing registration. This letter dated 4.3.1980 does
not mention about the payment of the money due under the promissory note as a condition for completing the registration. Apparently, Manicka
Gounder and Vedambal had been paying the amounts to Duraivel by depositing in his account in Indian Bank. I have already adverted to how
Somasundara and Kanagasundaram could not have got possession of the properties. Duraivel had to look up only to vadivelu and Manicka
Gounder for collection of ''waram'', for sale of casuriana, for payment of kist and other things. Absolutely nothing is there on record to show that
Somasundram or Kanagasundaram had possession of the property at any time. Apparently some misunderstanding had arisen between Duraivel
on the one hand and Manicka Gounder and Vedambal on the other even though as late as 17.11.1985 Duraivel writes to Manicka Gounder giving
details of payments made and giving time till 26.12.1986 for paying the amount due. However, during his trip to India in 1986 the relationship
between the parties had become very strained, apparently, due to the machinations of Kanagasundaram and Somasundram and Duraivel had a
change of heart and wanted to go back on his commitment under Ex.A4. There were certain other individuals who had poisoned his mind and
battle lines came to be drawn.
As already noticed the lower appellate Court has proceeded on certain preconceived notions. It had gone to the extent of finding that there
could not have been power in existence at the time Duraivel executed the sale deeds Exs.A1 and A2 in favour of Manicka gounder and Vedambal.
Even the letters of Duraivel clearly speak to the existence of the power and it was having life even as late as December 1985. The parties had
contemplated the drawing of a special power for completing registration. From this the lower appellate Court had wrongly held that Duraivel did
not have the power to sell in the year 1980. We have already noticed that the power had been kept back. Duraivel had avoided the box for
obvious reasons. If only he had got into the box, the truth would have come out and a lot of explanations might have been necessary from Duraivel
as to the contents of the various letters written by him.
Mr. G. Rangaralhinam, learned counsel for the respondent referred to the following decisions:
(i) Ganga Baksh Singh v. Maula Bux Singh (AIR 1926 Oudh 337). In that case it has been held that the principal was not bound by the fraudulent
acts of his agent. When a person relying on the agent''s fraud is a party to that fraud.
(ii) The next decision is the decision of the Chancery Division In re A Debtor ( 1927 (2) Chancery page 367) where it has been held that the
payment of the commission to the agent by the other party without the knowledge of the principal rendered the contract avoidable if not void
against the debtor.
(iii) In Industries & General Mortgage Co., Ltd., v. Lewis ( 1946 (2) All England Law Reports 573) also relied on by the learned counsel for the
respondent is to the effect that once it was established that one party to a contract had made a secret payment to the agent of the other party the
law would presume that he had acted corruptly, that the agent had been influenced by the payment to the detriment of his principal and that the
principal had suffered damage at least to the amount of the bribe; in the present case the payment by the plaintiffs to ''V constituted a bribe and its
amount was recoverable by the defendant from the plaintiffs as damages or money had and received.
The above cases have been relied on by the learned counsel for the purpose of showing that there had been a secret pact between Duraivel
and Manicka Gounder and this was detrimental to the interest of the principal his parents and such an arrangement would not bind the principal. In
the instant case the unfolding of the facts clearly shows that the sale deeds had been executed by Duraivel in his capacity as power of attorney
holder to the knowledge and consent of his parents the principals. It had also been agreed that the sale deeds would be registered for the amounts
shown in the documents and for the balance agreed between the parties, there would be a promissory note by Manicka Gounder in favour of
Duraivel. All these things are clearly disclosed from the pleadings and the documents. By no stretch of imagination can it be held that there was any
secret pact. The learned counsel also made a point of the fact that Duraivel had not been examined, that he was the best person to speak to the
transaction and Vedambal and Manicka Gounder ought to have examined Duraivel. The learned counsel also made a point that the original power
had not been produced and not even a copy had been filed. The parties are close relations. They proceeded on trust and at a particular stage of
the transaction Duraivel changed track and wanted to go back and this was in no small measure due to the present power of attorney holder of
Lakshmi Ammal.
It would be pertinent to note that in the suite filed by Vedambal and Manicka Gounder, Duraivel was represented by his power of attorney
holder Kanagasundaram. From the facts disclosed it can easily be seen that the case of Manicka Gounder and Vedambal is true.
The next question relates to limitation. We have already seen that Vedambal and Manicka Gounder had notice of refusal only in the year 1986.
So far as the sale deeds are concerned the amounts recited in the documents had been paid to Duraivel even on 29.2.1980. Possession also had
been given to the purchasers namely, Vedambal and Manicka Gounder. All that remained to be done was only registration. The lower appellate
Court had proceeded on the wrong notion that the time expired even in the year 1980. It has been held in M. Suryaprakasha Gupta Vs. T.S.
Muthuswami Iyer and Others, that a document requiring registration could be the foundation for relief in a suit for specific performance, in favour of
the plaintiff, when it was not registered by virtue of the proviso to Sec. 49 of the Registration Act.
Thus construed there is absolutely no difficulty in holding that the plaintiff had come to Court in time from the date of knowledge of refusal by
Duraivel and consequently by Lakshmi Ammal. The genuineness of the two documents has not been disputed. There is no fraud alleged. The lower
appellate Court has missed the wood for the tree when it stated that there has been suppression of material facts by the plaintiffs in the suits.
Consequently, the lower appellate Court clearly erred in reversing the decision of the trial Court and dismissing the suits for specific performance
on wholly untenable grounds.
So, the substantial questions are answered in favour of the appellant in each of the second appeals. Both the second appeals are allowed.
However, there will be no order as to costs. Admittedly, the appellants had executed a promissory note in favour of the vendors. The amount due
under the promissory note bad not been paid in entirety. Justice and equity demand that Lakshmi Ammal the respondent herein is not deprived of
the amount due to her under the promissory note and this can be achieved only if the appellants are directed to pay the said amount to the
respondents. I called upon the learned counsel for the appellants to work out the amount due under the promissory note to the respondent. The
counsel has made available a working sheet and it is to the following effect:
As per Ex.A4, Duraivelu requested the plaintiffs to pay a sum of Rs. 19,596/- on or before 29.12.1986 demanding interest at the rate of 10% per
annum. A sum of Rs. 19,596/- for a period of 2 years 6 months the interest amount will come to Rs. 24,500/-
The respondent is entitled to this amount. There will be a decree in her favour for this amount, as against the appellants subject to her paying the
Court fee on the amount before the trial Court. She will be at liberty to recover the amount from the appellants and there will be a charge on the
properties for this amount. However, there will be no order as to costs. Consequently. C.M.P. Nos. 87 and 9042 of 1996 are closed.