K.P.Karuppusamy v. M.Kandasamy

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON DELIVERED ON 05~04~2019 23~04~2019 CORAM :

THE HONOURABLE MR. JUSTICE N.SATHISH KUMAR S.A.No.1655 of 2011 and M.P.Nos.1 of 2011 and 1 of 2012 K.P.Karuppasamy ... Appellant/3rd Respondent/ 3rd Defendant versus 1.M.Kandasamy ... 1st Respondent/ Appellant/ Plaintiff 2.Ponnusamy (deceased) 3.Mahesh Kumar ... 3rd Respondent/ 2nd Respondent/ 2nd Defendant 4.Kuppusamy ... 4th Respondent/ 4th Respondent/ 4th Defendant 5.Dhanalakshmi ... 5th Respondent/ 5th Respondent 6.R.Rajeshwari ... 6th Respondent/6th Respondent Second Appeal filed under Section 100 of C.P.C., against the Decree and Judgment dated 20.04.2011 made in A.S.No.68 of 2009 on the file of the Additional district Judge, Fast Track Court No.II, Gobichettipalayam, reversing the Judgment and Decree dated 24.09.2008 in O.S.No. No.92 of 2002 on the file of the Principal Subordinate Judge, Gobichettipalayam. For Appellant .. Mr.V. Raghavachari for M/s. M.Narayanaswamy For Respondents .. No appearance for R1, R3 & R4 R2 died

JUDGMENT

Aggrieved over the judgment and decree of the First appellate Court allowing the appeal granting decree for specific performance the present second appeal is filed. The parties are arrayed as per their rankings before the trial Court.

2. The brief facts leading to file this Civil Revision Petition are as follows:

2.(a) The suit property is ancestral property of one Palanisamy Gounder. After his death Defendants 1 and 2 became entitled to the property. Both the Defendants 1 and 2 agreed to sell the suit property for a sale consideration of Rs.4,25,000/- on 22.2.2001 and entered an agreement and received a sum of Rs.4,00,000/- advance. It is also agreed between the parties that the sale shall be completed within one year. The Plaintiff requested the defendants to execute the sale. However, they delayed the sale. Therefore, he issued legal notice on 9.2.2002 calling upon them to come to the Nambiyur Sub-Registrar Office to execute the sale deed. However, they did not come to the Sub-Registrar Office. On 14.2.

2002 when the Plaintiff was applied encumbrance, he came to know that the Defendants 1 and 2 in order to defeat the agreement, has sold the property to the third Defendant on 24.12.2001. After the agreement, taking advantage of the rise in price, Defendants 1 and 2 in collusion with Defendants 3 and 4 have executed sale deed. Above sale deed is not valid. Therefore, again issued legal notice on 22.2.2002 to the 4th Defendant also. Hence the suit.

3. Third Defendant filed written statement stating that the agreement dated 22.2.2001 is fabricated one with the connivance of Defendants 1 and 2. In fact he is the purchaser of the property for value in good faith. The suit agreement has been fabricated and ante-dated. The same has came into existence with the connivance of Defendants 1 and 2. It is his further contention that before his purchase, he had already entered into an agreement on 21.01.2001 and paid advance. In pursuance to the above agreement, registered sale agreement was properly registered on 7.3.2001. Thereafter the same was cancelled on 2.4.2001 and agreement was executed for another 18 cents in pursuant to the same he has purchased the property on 24.12.2001. Hence, prayed for dismissal of the suit.

4. The trial Court has framed the following issues:

1. Whether the Plaintiff is entitled for the relief as prayed for?

2. Whether the version of the Defendant that the sale agreement is fabricated one is correct?

3. Whether prima facie made in this case?

4. To what other reliefs?

5. The Plaintiff examined as P.W.2. on his side P.W.1 and P.w.3 were examined and Ex.A.1 to A.12 marked. Defendants 1 and 2 remained exparte. 3rd Defendant examined as D.W.1 and D.Ws.2 to 4 were examined on his side and Exs.B.1 to B.3 marked. The trial

Court considered the entire aspect, disbelieved the agreement and dismissed the suit. However, First Appellate Court has set aside the decree and judgment of the trial court. As against which the present second appeal is filed.

6. The Appellant has raised the following substantial questions of law:

1. Whether the facts and circumstances of the case, the 1st Appellate Court was correct in reversing the well reasoned and considered order of the trial Court?

2. Whether in the facts and circumstances of the case, the 1st Appellate Court has appreciated the facts and evidence in a proper perspective?

3. Whether in the facts and circumstances of the case, the 1st Appellate Court was right in concluding that the plaintiff was ready and willing to perform his part of contract?

4. Whether the facts and circumstances of the case, the 1st Appellate Court was right in believing Ex.A.1 instead of Ex.B.13?

7. Learned counsel appearing for the appellant has vehemently contended that Ex.A.1 agreement is fabricated and ante-dated only to non-suit the sale made in favour of the Third Defendant. The conduct of the P.W.1 clearly proved that suit agreement is fabricated with the help of Defendants No.1 and 2 to defeat the sale made in favour of the Third Defendant. The trial court in fact has analysed the evidence in entirety and dismissed the Suit. Whereas the First appellate court has without appreciating the evidence, decreed the suit. The findings of the First Appellate Court that the Third Defendant has not produced the sale deed and the sale deed is pending for under valuation did not convey any title is against the statute. Such a finding of the First Appellate Court is not according to law. In fact the First Appellate Court has not properly appreciated the entire evidence. Hence, prayed for allowing the appeal.

8. The contesting Respondent, despite his name printed in cause list none appeared. The Fifth Respondent counsel submitted that the agreement is fabricated one with the connivance of the Defendants 1 and 2. The Plaintiff cannot seek for specific performance of agreement. The conduct itself clearly show that the agreement is a fabricated one. Hence, submitted tha the Specific Performance cannot be granted based on such fabricated agreement.

9. It is the case of the plaintiff that the suit property is ancestral property. Therefore, Defendants 1 and 2 are entitled to the suit property and they have entered into a agrement for sale of suit property on 22.2.2001. But the fact remains that suit property is a self acquired property of one Palanisamy Gounder. It has been clearly established in the connected appeal. Be that as it may. It is the contention of the plaintiff that on the date of agreement i.e., on 22.2.2001 he has paid substantial sale consideration of Rs.4,00,000/- as advance. However, he has agreed to pay the remaining sale consideration within one year viz., Rs.25,000/-. It is the specific case of the Defendant that the suit agreement came into existence at the later point of time, ante-dated and fabricated with the help of Defendants 1 and 2 to defeat the sale made in favour of the Third Defendant.

10. The trail court has framed the specific issue whether the agreement is fabricated one. It is to be noted that the Plaintiff has examined as P.W.2. His evidence in entirety seen, he is not rustic villager. He is in fact having a legal back ground and has also enrolled as Advocate in the Bar Council. His evidence also indicate that on the date of agreement he has not seen any title deeds. He has not even verified the encumbrance in the suit property. Whereas his contention is that without verifying the title deeds and even without verifying any encumbrance he has entered an unregistered agreement and paid a sum of Rs.4,00,000/-advance. Such conduct of paying Rs.4,00,000/- without even verifying the title deeds and encumbrance is against normal human conduct. P.W.2 is not ordinary layman.

He has legal knowledge; he has enrolled as an Advocate and in fact he was pursuing law course at the relevant point of time. Therefore, his contention that he has paid a sum of Rs.4,00,000/- advance, without verifying the title deeds is highly doubtful in this case. Though he examined P.W.1, one of the attesting witnesses to prove the alleged execution of agreement his evidence also is not reliable for the simple reason that he is also politically connected with P.W.2 viz.,the Plaintiff. They are all belonging to the same political party.

11. Further, P.W.2 evidence also indicate that he is never knew the plaintiff before that. That being the position, he accompanying P.W.2 to be a witness is also highly improbable. Even assuming that evidence of P.W.1 is sufficient to prove the execution, now it has to be analysed whether Ex.A.1 is true and genuine or fabricated at a later point of time and ante dated. It is curious to note that having paid Rs.4,00,000/-, plaintiff not even to made any attempts to find out whether there is an encumbrance in the suit property. The evidence adduced by the Third Defendant clearly proved the fact that on 07.03.2001

itself the registered agreement came to be executed in respect of the suit property which has also not been verified by the Plaintiff. Ex.B.10 filed proved the above fact. Similarly, the above agreement was cancelled on 24.03.2001 as per Ex.B.8. All these facts clearly to prove that there are encumbrance in the suit property even after the alleged agreement. The conduct of the Plaintiff even without verifying any encumbrance, ever after alleged parting of Rs.4,00,000/- and remaining silent till the alleged legal notice dated 09.09.2002 create further doubt about his agreement. If really, the plaintiff was intended to purchase the property, his immediate conduct would be to verify the title deeds and make some arrangements to get the encumbrance then and there. He would not have been mere silent spectator till the entire agreement time is expired.

12. It is his contention that only for the First time he has issued notice on 9.2.2002 and called upon the Defendants 1 and 2 to come to the Sub-Registrar office. This aspect is also highly doubtful. If really he has gone to sub-registrar office he ought to have proved the above fact atleast to show that he has purchased stamp papers for the above alleged registration, which has not done so.

13. Yet another fact is that the trial court has analysed the entire facts and come to the conclusion that the agreement is fabricated one and ante-dated. It is to be noted that entire evidence of P.W.2 itself clearly indicate that his wife is working as Assistant in the Sub-Registrar Office Gobichettipalayam, where Ex.A.1 allegedly executed in front of the said Registrar office. It is to be noted that the specific evidence of P.W.2 that the agreement was written in the Gobichetty palayam sub-registrar office. His evidence also clearly indicate that his wife is very much working in the same sub-registrar office as Assistant. According to him he has purchased the stamp paper in his name. His specific evidence to that effect that the stamp paper of Ex.A.1 was purchased in his name. In this regard, Ex.B.23 was summoned, through D.W.3. Ex.P.

23 copy of the Register was produced. The evidence of D.W.4 and Ex.B.23 when seen, on 22.2.2001 Ex.A.1 Stamp papers were purchased in the name of one Rajendran. He has purchased stamp papers bearing No.608 to 612. His signature was obtained in one of the entries and subsequent entries ditto mark has been placed. As against the number 5612 above the ditto mark the plaintiff name has been inserted later. This is also one of the reasons the trial court has doubted the genuineness of the agreement. It is further to be noted that in the register maintained by the stamp vendor in respect of the stamp paper bearing No.5612 has been torn. The signature portion available in the original doucment has been conveniently removed as per the evidence of D.W.4.

relevant time, the Plaintiff's wife was working as a Assistant in the Sub-Registrar office. Ex.B.23 when carefully seen, in fact the District Registrar has given a complaint for tampering about the register, particularly, stamp paper No.5612 of 2001. the amount, name of the person of purchase of stamp paper also, the pages have been torn. In respect of which District Registrar has already given a complaint to the Gobi Police station. The entries made in the register clearly indicate that the name of the plaintiff has inserted above the ditto mark. Original entry and signature page also destroyed. In respect of which complaint also given by the sub-Registrar office. Possibility of tampering of these records by the plaintiff, with the help of his wife who is working in the sub-registrar office, cannot be ruled out.

These facts coupled with the conduct of the plaintiff even after the alleged payment of huge amount of Rs.4,00,000/- and without verifying any title deeds that he went to sub-registrar office Nambiyur on 14.2.2002, in fact probabalise the defendants theory that entire agreement is fabricated and ante-dated only to non-suit the sale in favour of the Third Defendant.

14. Admittedly, the 5th Defendant has already filed a suit for partition against the Third Defendant. In another appeal, this Court has found that the 5th Defendant is entitled to half share in the property purchased by the the third defendant. The conduct of the Plaintiff and manipulation in the stamp register clearly probabalise the defendant's theory that this agreement is ante-dated and came into existence with the help of Defendants 1 and 2. It is also to be noted that if really the plaintiff was interested in executing the document, he ought to have deposited the remaining sale consideration before the Court. When he was examined in the year 2004, he has categorically admitted that he has not deposited the remaining sale consideration.

When he was subsequently examined in the year 2007 at that time he has stated the he had deposited the amount. So from the entire conduct makes it clear that, plaintiff has meticulously created evidence, stage by stage to make it appear as if he was always ready and willing to purchase the property. On the other hand his entire conduct creates a very doubt about the existence of that agreement.

15. Therefore, when the court entertain serious doubt about the genuineness of the agreement, such agreement cannot be enforced for grant of specific performance. Merely because interested witnesses examined, the Court cannot shut its eyes without further probing the issue. Every trial is voyage of truth. Finding out the truth is the ultimate goal of the courts. When the very conduct of the Plaintiff clearly show that the existence of agreement as alleged by the plaintiff improbable and create a doubt such agreement certainly cannot be enforced

in the court of law.

16. The first Appellate court without appreciating the evidence in proper manner has gone to the extent of holding that since the sale deed is in favour of third defendant, was not released by the stamp authorities in under valuation proceedings and the same did not convey title to the third defendant. Such approach of the First Appellate court in view of this court is nothing but perverse.

17. Section 47(A) of the Stamp Act deals with the instruments of conveyance etc., undervalued how to be dealt with. The object of Section 47 is only to collect the revenue for the correct market value of the property. If the registering authority has reason to believe that the market value of the property which is subject matter of conveyance has not been truly set forth in the instrument, he may determine the market value of such property after registering such instrument refer the same to Collector for determination of market value. Only on such determination the person is liable to pay the duty shall pay, in addition to the amount due amount of duty. All duties and penalties and other sums shall be recovered by the Collector by distress and sale of the immovable property of the person from whom the same are due, or by other process for the time being in force for the recovery of arrears of land revenue.

18. Therefore, pending document to determine the correct market value cannot take away the right of the purchaser under the document. It is for him to pay the difference duty, if determined by the Collector. That cannot be taken advantage by the Plaintiff to non-suit such purchase. The First Appellate court has in fact gone to aid the Plaintiff in decreeing the suit some or other, which is in fact perverse and certainly liable to be set aside. Accordingly, the substantial questions of law raised by the appellant is answered in his favour. In view of the same, the second appeal is allowed and the judgment of the First Appellate court is set aside. Judgment and Decree of the trial Court is restored.

19. In the result, the Second Appeal is allowed. Consequently, connected M.Ps. are closed. No costs. Sd/- Assistant Registrar(CCC) //True copy// Sub Assistant Registrar ggs

To

1. The Additional district Judge, Fast Track Court No.II, Gobichettipalayam.

2. The Principal Subordinate Judge, Gobichettipalayam. Copy To The Section Officer, VR Section, High Court, Madras.

+1cc to Mr.M.Narayanaswamy, Advocate SR.No.38957 S.A.No.1655 of 2011 MP(CO) GMY(20/11/2020)