Smt. Pachaiammal vs Murugayee and Others

The first Defendant in the Original Suit is the sole Appellant in the Second Appeal. The suit was filed before the trial Court originally by one

Palaniappan for the relief of specific performance based on an alleged agreement for sale dated 29.03.1984, marked as Ex.A.2. Since the said

Palaniappan died subsequently, the Respondents 1 to 6 herein got imp leaded as Plaintiffs 2 to 7. The suit was filed against the Appellant herein

and the 7th Respondent herein arraying them as Defendants 1 and 2 respectively.

In fact, the suit was originally filed against the Appellant alone and the 7th Respondent was subsequently imp leaded as second Defendant by

virtue of an order dated 13.01.1995, made in I.A. No. 88/95 in the Original Suit No. 214 of 1989 on the premise that the 7th Respondent herein

got a sale deed from the Appellant herein during the pendency of the suit. Though the 7th Respondent/second Defendant was served with

summons after impalement, he did not contest the suit and he remained exporter. It was the Appellant/first Defendant, who brought the fact of her

having executed a sale deed under Ex.B.9 in favour of the 7th Respondent herein by incorporating such a plea in the written statement and

contended that the suit was bad for non-joiner of necessary parties. Pursuant to the same, the Plaintiffs imp leaded the 7th Respondent herein as

second Defendant with the necessary additional pleadings by way of amendment to the effect that if at all any sale deed had been executed by the

Appellant herein/first Defendant in favour of the 7th Respondent herein/2nd Defendant, the same would have been brought into existence with the

fraudulent intention of defeating the claim of the Plaintiffs and the same would not bind the Plaintiffs.

After the impalement of the 7th Respondent herein/Defendant, he did not appear to deny the contention of the Plaintiffs that such a sale was not

valid and was created with the fraudulent intention to defeat the claim of the Plaintiffs and the same would not affect the right of the Plaintiffs. On

the other hand, the first Defendant (Appellant herein) herself chose to file an additional written statement in which she herself stated that the said

sale deed was not a real transaction and the same was executed by her in favour of the 7th Respondent herein/second Defendant as a sham and

nominal deed. Even after such pleading, the second Defendant remained exporter. Therefore, the admitted case of both the parties regarding the

said sale transaction is that the sale transaction under Ex.B.9 was not a real one and was only a sham and nominal and hence, it is non-est in the

eye of law. The suit having been filed based on the alleged suit agreement of sale dated 29.03.1984, marked as Ex.A.2, the Appellant herein/first

Defendant contested the suit by contending that the said document (Ex.A.2) was not a genuine one and she did not execute such an agreement for

sale.

(i) Whether the agreement for sale dated 29.03.1984, alleged to have been executed by the Appellant/first Defendant is genuine and valid?

(ii) Whether the Plaintiffs are entitled to the reliefs sought for in the plaint?

(iii) To what relief, the Plaintiffs are entitled?"" were the issues framed by the trial Court, based on which, the parties went for trial. Murugan, the 4th

Plaintiff figured as P.W.1. Kamayee Ammal figured as P.W.2. Five documents were marked as Exs.A.1 to A.5 on the side of the Plaintiffs. The

Appellant/1st Defendant figured as the sole witness (DW1) on her side. She produced 10 documents and marked them as Exs.B.1 to B.10.

The trial Judge after considering the same in the light of the arguments advanced on both sides came to the conclusion that Ex.A.2-Agreement

dated 29.03.1984 was genuine and valid and granted the relief of specific performance of contract directing the Appellant herein/first Defendant to

execute the sale deed after receiving a sum of Rs. 8,200/- from the Plaintiffs.

Challenging the correctness of the decree granted by the trial Court, which was dated 02.04.2001, the Appellant herein/first Defendant

preferred an appeal in A.S. No. 3 of 2004 on the file of the District Court, Dindigul and the same was made over the learned Additional

Subordinate Judge, Dindigul for disposal according to law.

In the said Appeal Suit, the Appellant herein/first Defendant also filed three interlocutory applications, namely I.A. Nos. 146/2010, 149/2010

and 150/2010: one for remanding the matter back to the trial Court or in the alternative for reception of additional evidence in the appellate Court;

one for referring Ex.A.2 agreement of sale to a handwriting expert and the 3rd one for seeking permission to file additional written statement.

Petitions seeking permission to file additional written statement and an order referring Ex.A.2 for the opinion of a handwriting expert, namely I.A.

No. 146/2010 and 150/2010 were heard separately and they were dismissed.

No doubt on the date of judgment of the lower appellate Court, the other petition, namely petition seeking permission to adduce additional

evidence in the appellate stage filed under Order 41 Rules 23, 27 and Section 151 of CPC Code, which was numbered as I.A. No. 149 of 2010,

was heard along with the appeal and was decided by an order commonly with the judgment. The learned first appellate Judge, after considering the

evidence and the submissions made on both sides came to the conclusion that Ex.A.2 agreement for sale was genuine and the finding rendered by

the trial Court in this regard could not be interfered with. It has also given a finding that the Appellant had not made out a case for reception of

additional evidence. Based on the said findings, the first appellate Court dismissed the appeal and also I.A. No. 149 of 2010 by its judgment dated

23.12.2010.

As against the concurrent findings of both the Courts below regarding the genuineness and validity of the suit sale agreement marked as Ex.A.2,

the present Second Appeal has been filed.

This Court heard the arguments advanced by Mr. Thirunavukkarasu, learned Counsel representing the counsel for the Appellant and perused

the records produced in the form of typed set of papers, including the judgments and decrees passed by the Courts below.

The following brief recital of facts involved in this case will help to understand the case:

Admittedly, the suit property originally belonged to Late Palaniappan, the original Plaintiff and he executed a sale deed in favour of P.W.2,

Kamayee ammal under Ex.B.4 dated 19.05.1977. The said sale deed was executed by the original Plaintiff for himself and on behalf of the 3rd

Respondent herein cited in the said deed as Murugiah instead of Murugan and 5th and 6th Respondents herein as their father and guardian. The

Respondents 2 and 4 herein also joined in the execution of the said sale deed. It is also not in dispute that on the same date, namely on

19.05.1977, P.W.2 Kamayee ammal executed a sale agreement marked as Ex.A.5 in favour of the original Plaintiff Palaniappan agreeing to

recovery the property on payment of a sum of Rs. 4,000/- as consideration for the reconveyance within seven years from the date of agreement.

The execution of Ex.A.5, reconveyance agreement is also not disputed by the parties. Under such circumstances at the fag end of the seven years

period stipulated in Ex.A.5, P.W.2 chose to execute Ex.B.5 sale deed conveying the suit property to the Appellant herein/first Defendant. The

execution of Ex.B.5 sale deed is also not disputed by the parties. On the other hand it is the contention of the Respondents 1 to 6/Plaintiffs that the

sale deed executed by P.W.2 Kamayiammal in favour of the Appellant/Defendant No. 1 was subject to Ex.A.5, agreement of sale and since the

parties wanted a further arrangement of reconveyance for higher amount to be paid for reconveyance, Ex.B.5 was executed with the consent of the

original Plaintiff Palaniappan and on the same day an independent agreement for sale under Ex.A.2 was executed by the Appellant herein/D.W.1 in

favour of the said Palaniappan. The sale consideration quoted therein is Rs. 8,300/- out of which Rs. 100/- was said to be paid as advance.

The case of the Plaintiffs is that the agreement for reconveyance under Ex.B.5 was sought to be replaced by a regular agreement for sale under

Ex.A.2, since the purchaser under Ex.B.4 wanted money which the Appellant/1st Defendant was ready to provide. Having accepted the earlier

transactions culminating in the execution of Ex.B.5 sale deed in favour of the Appellant/1st Defendant, she has chosen to deny and dispute the

genuineness of Ex.A.2 agreement for sale which was allegedly executed on the very date on which Ex.B.5 sale deed was obtained by her. Though

the Appellant/first Defendant executed a sale deed in favour of the 7th Respondent (P. Subramanian) under the originals of Exs.B.9 and B.10

during the pendency of the suit, the same will not affect the rights of the parties because the said transaction pending suit shall be subject to the

result of the list. In addition to that, both the contesting parties have taken a concurring plea that the sale in favour of the 7th Respondent was not

genuine and on the other hand it was a sham and nominal one. The 7th Respondent has not chosen to make a claim of derivation of valid title under

the said sale dated 16.02.1990. Such a question does not arise for consideration, because the contesting parties have admitted the position.

Since the genuineness of Ex.A.2 agreement for sale is disputed by the Appellant/first Defendant, the burden to prove the same shall be on the

Respondents 2 to 6/Plaintiffs. In order to prove the due execution of Ex.A.2, agreement and its genuineness, the Plaintiffs have examined the 4th

Plaintiff as P.W.1, who has deposed in line with the plaint averments. The said evidence of P.W.1 is corroborated by the evidence of P.W.2, who

is none other that the vender of the Appellant/ 1st Defendant. She is also an attester of Ex.A2-agreement for sale. In the light of the fact that such a

clear evidence has been adduced on the side of the Plaintiffs, the Appellant/first Defendant has not chosen to examine any witness other than

herself. There is no other oral evidence, excepting the interested testimony of D.W.1, the Appellant herein. The Appellant herself, in her evidence,

admitted the fact that though Ex.B.4 was executed as a sale deed in favour of P.W.2-Kamayee Ammal, it was only a loan transaction and that is

why an agreement for reconveyance was entered into between the parties under Ex.A.5 on the date of sale itself.

It is also an admitted fact that Kamayee Ammal chose to sell the land under Ex.B.5 sale deed with the consent of Palaniappan, when the time

stipulated in Ex.A.5 agreement for reconveyance was to expire. Therefore, the contention of the Respondents 1 to 6/Plaintiffs and the evidence

adduced through P. Ws.1 and 2 to the effect that Ex.B.5 sale deed was executed in favour of the Appellant/first Defendant by P.W.2 with the

understanding that the Appellant/first Defendant should convey the property to Palaniappan, the original Plaintiff, for a sum of Rs. 8,300/- which is

more than twice the amount quoted as consideration for reconveyance in Ex.A.5, seems to be quite probable and believable. The trial Court and

the first appellate Court on consideration of the said aspect and evidence in this regard came to a conclusion concurrently in favour of the Plaintiffs,

which according to the Court, is a proper conclusion and the same cannot be termed either defective or infirm, much less perverse. The relief

sought for by the Plaintiffs simply revolves around the resolution of the issue regarding the genuineness and validity of Ex.A.2, which has been

decided in the affirmatively by the Courts below on appreciation of the evidence. The said finding is sought to be challenged in the Second Appeal.

An appeal from the decree of the appellate Court shall lie to the High Court u/s 100 of CPC on a substantial question of law. The Appellant, in

the grounds of appeal, has formulated and incorporated the following questions as substantial questions of law:

a) Whether the Plaintiffs have proved Ex.A2 Resale Agreement?

b) Whether the Courts below are right in holding that Ex.A2 is a genuine one and the same was proved by the Plaintiffs?

c) Whether the lower appellate Court has discussed about Ex.A2 and given its finding by valid reason?

d) Whether the discretionary relief of specific performance granted by the Courts below are correct or not?

None of the questions suggested therein can be accepted to be a substantial question of law. All the questions are based on the rival pleadings of

the fact regarding, which the Courts below have rendered concurrent finding. The findings of fact cannot be agitated in the Second Appeal, unless

it is claimed to be perverse, in which case the same shall be considered to be a substantial question of law. In this case as pointed out supra

Ex.A.2-agreement of sale is found genuine and valid. Therefore, there is no defect or infirmity in the findings of the decrees passed by the Courts

below.

Even though it has not been projected in the memorandum of appeal as a question of law, the learned Counsel for the Appellant, during

arguments, made an attempt to show that the judgment of the lower appellate Court cannot be termed a judgment in compliance with the

requirements of Order 41 Rule 31 of CPC Code. According to the contention of the learned Counsel for the Appellant, necessary issue regarding

the genuineness and validity of the agreement marked as Ex.A.2 has not been framed as one of the points for determination by the lower appellate

Court and proper discussion was not made and no clear cut finding was given by the lower appellate Court.

In this regard, the learned Counsel for the Appellant chose to refer a number of precedents, which this Court thinks unnecessary to refer,

because this Court is in complete agreement with the contention of the learned Counsel for the Appellant that, when necessary points for

determination are not framed and are not answered with the reasons for the same, the judgment of the lower appellate Court cannot be termed a

judgment in compliance Order 41 Rule 31 of CPC Code. But this Court, on perusal of the judgment of the lower appellate Court, finds that the

crucial question has been identified as point for consideration and the same has been decided assigning reason, which cannot be stated to be

defective or perverse.

The learned Counsel for the Appellant also made an attempt by putting forward an argument that since the petitions seeking permission to file

additional written statement, permission to lead additional evidence and an order referring Ex.A.2 to handwriting expert had been dismissed by the

lower appellate Court, dismissal of those applications should be held not in accordance with law and hence, the matter should be remitted back to

the trial Court for fresh disposal after affording further opportunities to the Appellant/first Defendant. This Court is not in a position to accept the

above said contention of the learned Counsel for the Appellant. The petition seeking permission to file additional written statement and seeking an

order to refer Ex.A.2 to a handwriting expert were filed at a belated stage and that alone could be a valid reason for rejection. Unless the Court is

of the view that the dismissal of such petitions would result in miscarriage of justice, this Court cannot interfere.

In this case, it is not as if there is want of evidence to give an effective finding as to the genuineness and validity of Ex.A.2 agreement. As

pointed out supra, clear evidence, including the evidence of P.W.2, who also happens to be the vender of Appellant/1st Defendant, has been

adduced on the side of the Plaintiffs to prove the genuineness and validity of Ex.A.2-Agreement. The Appellant/first Defendant having chosen to

file an application under Order 41 Rule 27 was not able to show that her case could be brought under the said Rule so that she could be permitted

to lead evidence at the appellate stage. A reading of the judgment of the lower appellate Court will show that the main contention of the

Appellant/first Defendant was that for one reason or the other she did not adduce necessary evidence which ought to have been adduced before

the trial Court and hence, the additional evidence should be allowed to be adduced in the appeal or the matter should be remanded back to the

trial Court for fresh disposal after affording such opportunity. The lower appellate Court, on a clear understanding of the law in this regard, has

approached the petition under Order 41 Rule 27 in proper perspective and came to the conclusion that such a petition could not be allowed.

On reappreciation of evidence regarding validity and genuineness of Ex.A.2, which alone was in dispute, the lower appellate Court came to the

conclusion, concurring with the view of the trial Court, that the same was genuine and valid. The said finding is a finding of fact, which cannot be

stated to be infirm or defective, much less perverse. Hence, the same cannot be interfered with in the Second Appeal. This Court, therefore,

comes to the conclusion that no substantial question of law is proved to have involved in this Second Appeal and the Second Appeal deserves to

be dismissed at the stage of admission itself.

Accordingly, the Second Appeal is dismissed. However, there shall be no order as to costs as the Second Appeal is dismissed at the

admission stage itself.