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Madras High CourtSA/1220/2012dismissed

Kannammal @ Janaki v. Varadaraj

2022-02-14Honourable Mr Justice N. Anand Venkatesh3 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 14.02.2022

CORAM

THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH S.A.No.1220 of 2012 and M.P.No.1 of 2012 Kannammal @ Janaki ...Appellant/3rd Defendant Vs.

1.Varadaraj 2.Selvam 3.C.Venkatesan

...Respondents/Plaintiffs/1st Defendant/

& 2nd Defendant PRAYER: Second Appeal filed under Section 100 of C.P.C., against the Judgment and Decree dated 20.06.2012 passed in A.S.No.19 of 2011 on the file of Subordinate Judge at Vaniyambadi, Vellore District confirming the judgment and decree dated 18.09.2010 passed in O.S.No.297 of 2004 on the file of the District Munsifcum-Judicial Magistrate, Vaniyambadi, Vellore District. For Appellant : Mr.R.Bharathkumar For Respondents : Mr.P.A.Sudeshkumar for R1 No Appearance for R2 & R3

JUDGMENT

The 3rd defendant is the appellant in the present second appeal.

2.The 1st respondent/plaintiff filed a suit for specific performance based on the Sale Agreement dated 22.10.2003 executed by the 2nd defendant who was the Power of Attorney Agent for the 1st defendant. According to the plaintiff, the total consideration was fixed at Rs.56,000/- and an advance of Rs.5,000/- was received from the plaintiff. Even though the plaintiff was ready and willing to perform his part of the contract, the 2nd defendant did not come forward to execute the sale deed. In the meantime, the 2nd defendant executed a Sale

Deed in favour of the 3rd defendant on 04.12.2003 for the very same property. Aggrieved by the same, the plaintiff filed the suit seeking for the relief of specific performance. 3.The 1st defendant did not contest the suit and remained ex-parte. The 2nd defendant who was the Power of Attorney Agent filed his written statement and took a stand that no agreement of sale was executed in favour of the plaintiff. According to the 2nd defendant, the sale agreement is a forged and fabricated document created by the plaintiff. The 3rd defendant also filed the written statement and took a stand that she is a bonafide purchaser for value and that she is in possession and enjoyment of the suit property and the Sale Agreement does not bind her, since it is a forged and fabricated document. 4.

Both the Courts below on appreciation of the oral and documentary evidence, found that the Sale Agreement was a valid document. Both the Courts below took into consideration the fact that the owner of the property namely the 1st defendant remained ex-parte and did not contest the suit. Both the Courts also found that the 3rd defendant is none other than the mother-inlaw of the 2nd defendant and she did not even have the wherewithal to purchase the property. Hence, both the Courts below came to a conclusion that the Sale Deed itself has been executed in favour of the 3rd defendant only to defeat the rights of the plaintiff flowing out of the sale agreement. 5.

The learned counsel for the appellant submitted that both the Courts below failed to take note of the fact that the plaintiff was not ready and willing to perform his part of the contract. The learned counsel further submitted that Ex. A1 which is the Sale Agreement, is a forged document and both the Courts below have acted upon this document and decreed the suit in favour of the plaintiff. It was also submitted that the Appellate Court failed to frame the points for consideration as mandated under Order 41 Rule 31 of C.P.C. Therefore, it was contended that the judgments of both the Courts below are liable to be set aside by this Court.

6.In the considered view of this Court, the owner of the property namely the 1st defendant chose to remain ex-parte and did not contest the suit. The 2nd defendant is the Power of Attorney Agent. If according to the 2nd defendant, the signature found in the Sale Agreement is forged, steps should have been taken by the 2nd defendant to send the document for Expert opinion. That apart the conduct of the 2nd defendant also plays a part in this case. The 2nd defendant sells the property to his

own mother-in-law who is the 3rd defendant and on evidence it was found that the 3rd defendant was a daily coolie who was not even earning Rs.50/- as wages. It is quite surprising that the 3rd defendant had paid a sum of Rs.40,000/- for purchasing the property. It is under these circumstances, both the Courts below held that the Sale Deed itself has been created to defeat the rights of the plaintiff.

7.The Appellate Court has substantially complied with the requirements of Order 41 Rule 21 of C.P.C while discussing the various issues raised in the appeal. The appellant who is the subsequent purchaser, cannot question the readiness and willingness at this stage and in any case both the Courts below found that the plaintiff was ready and willing to perform his part of the conduct.

8.This Court finds that there are no grounds to interfere with the judgments and decrees of both the Courts below and there are no substantial questions of law involved in the present second appeal.

9.In the result, the second appeal stands dismissed. Considering the facts and circumstances of the case, there will be no order as to costs. Consequently, connected miscellaneous petition is closed.

Sd/- Assistant Registrar(I) // True Copy // Sub Assistant Registrar ssr To 1.The Subordinate Judge at Vaniyambadi, Vellore District.

2.The District Munsif-cum-Judicial Magistrate, Vaniyambadi, Vellore District.

+1cc to Mr.R.Bharath Kumar, Advocate SR.No.9630 S.A.No.1220 of 2012 and M.P.No.1 of 2012 KK(CO) CB(08/03/2022)