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2025 DAILYLAW 8647 (MAD)

M. Kalavathy v. C. Madhubala

2025-10-08

C V Karthikeyan, R Vijayakumar

body2025
JUDGMENT : R.VIJAYKUMAR, J. 1. The present first appeal has been preferred by the plaintiff in a suit for specific performance challenging the dismissal of her suit. (A)Pleadings before the trial Court 2.As per the plaint averments, the defendant is the owner of the suit schedule property. The defendant's mother is alleged to have borrowed a sum of Rs.45,00,000/- from the plaintiff and said to have executed various loan documents evidencing the borrowing. The defendant's mother could not repay the said loan and due to the mediation effected, the defendant had agreed to sell the suit schedule property. The entire sale consideration has been paid. 3.The plaintiff has contended that no time limit has been fixed in the sale agreement. As and when the plaintiff calls upon the defendant to execute the sale agreement, the defendant has to execute the same. It is further contended that the plaintiff has been demanding the defendant to execute the sale deed from 15.08.2015 onwards. As per the terms of the agreement, a reasonable period has been agreed upon between the parties and therefore, the present suit is filed in time. 4.It is further contended in the plaint that the defendant having been the beneficiary of the loan borrowed by her mother and having undertaken to discharge the loan by executing sale of the property, the plaintiff is entitled to file a suit though the defendant is a stranger to consideration. It is further contended that the plaintiff has been ready and willing to perform her part of the contract at all relevant point of time and continues to remain as such. 5.The defendant has filed a written statement contending that she is not aware of the alleged borrowings made by her mother. It is further contended that she was never a beneficiary of the loan said to have borrowed by her mother. The defendant had contended that the alleged agreement is a forged document and it should be sent to the expert opinion for examining her signature. 6.According to the defendant, the suit schedule property was purchased out of her own funds and she had constructed a house in the said property by availing the housing loan from HDFC Bank. She has no reason or paucity of funds to alienate the suit schedule property. 6.According to the defendant, the suit schedule property was purchased out of her own funds and she had constructed a house in the said property by availing the housing loan from HDFC Bank. She has no reason or paucity of funds to alienate the suit schedule property. 7.The defendant has further contended that her mother used to get herself involved in various nefarious activities and hence she had remained absconding for so many years. Both the plaintiff as well as the defendant's mother are housewives. It is not known for what reason such a huge amount was given as a loan to the defendant's mother. According to the defendant, the plaintiff may have colluded with the defendant's mother to usurp the self acquired property of the defendant. According to the defendant, she is residing in another State and taking advantage of her absence in the Town, a criminal conspiracy has been hatched to usurp her property. The defendant further submits that she intends to initiate criminal prosecution for forging the suit sale agreement. 8.On the side of the plaintiff, the plaintiff has examined herself as P.W.1 and the plaintiff's sister has been examined as P.W.2 who had attested Ex.A1 sale agreement. Ex.A1 sale agreement dated 08.11.2014 is the only the document marked on the side of the plaintiff. On the side of the defendant, the defendant has examined herself as D.W.1. She has marked Ex.B.1 photograph and Ex.B2, a provisional bank statement issued by the HDFC Bank for the period covering 01.04.2016 to 31.03.2017. (B)Findings of the trial Court 9.The trial Court has proceeded to dismiss the suit on the following grounds:- a)The plaintiff though contends that the defendant's mother had borrowed a sum of Rs.45,00,000/- and executed valuable securities and loan agreement for the repayment of the said loan, those documents have not been produced. (B)Findings of the trial Court 9.The trial Court has proceeded to dismiss the suit on the following grounds:- a)The plaintiff though contends that the defendant's mother had borrowed a sum of Rs.45,00,000/- and executed valuable securities and loan agreement for the repayment of the said loan, those documents have not been produced. Further, no documents have been placed so that the plaintiff had enjoyed the benefit of the loan availed by the defendant' mother; b)Ex.B2 Bank statement would clearly establish that the construction was made in the suit schedule property by the defendant by availing loan from HDFC Bank and the loan is yet to be settled; c)The plaintiff has miserably failed to prove the passing of consideration of Rs.45,00,000/- in the sale agreement; d)Though Ex.A1 sale agreement is said to have been executed by the defendant for the borrowal made by the defendant mother, the defendant's mother has not been made either as a party to sale agreement or an attestor; e)P.W.1 has admitted that the document executed by the defendant's mother at the time of her borrowal was not returned at the time of execution of sale agreement; f)P.W.1 has admitted that at the time of execution of Ex.A1 sale agreement, the defendant's mother is said to have executed an undertaking agreement in Rs.100/- stamp paper agreeing to repay the loan. The said document has also not produced before the Court. Since another agreement for repayment of the loan has been obtained by the plaintiff from the defendant's mother, it is clear that no consideration has been passed under Ex.A1 sale agreement; g)The evidence of P.W.1 would clearly disclose that she was not ready and willing to perform her part of the contract; h)The evidence of P.W.1 reveals that the sale agreement was executed by the defendant under coercion and threat exerted by the plaintiff, it was not out of own volition of the defendant. Therefore, the sale agreement is not enforceable. The plaintiff has not issued any legal notice to the defendant's mother for repayment of the loan amount and no action has been taken against the defendant's mother based upon the alleged cheque and pro-note said to have executed by her mother. The defendant's mother has filed Insolvency Petition and in the said petition, the plaintiff has not been made as a party. The defendant's mother has filed Insolvency Petition and in the said petition, the plaintiff has not been made as a party. Further, the plaintiff has admitted in her cross examination that the loan was borrowed by the defendant's mother for her son's business and she is not aware whether the loan amount was paid by the defendant's mother to the defendant; and i)When the defendant has specifically disputed her signature in the sale agreement and has pleaded that the sale agreement should be sent for expert opinion, the plaintiff has not taken any steps for the same. The signature found in Ex.A1 sale agreement has not tallied with the signature of the defendant found in the written statement, vakalat and other documents available in the Court. The variation in the signature is clearly visible even to the naked eye. Therefore, the plaintiff has failed to prove the execution of the sale agreement and signature of the defendant. 10.The Ex.A1 sale agreement is an unregistered document. After the amendment of the Registration Act in the year 2012, the sale agreement executed after 01.12.2012 requires registration. Ex.A1 sale agreement having been executed on 08.11.2014 is not admissible in evidence and therefore, the suit for specific performance based upon an unregistered sale agreement is not valid. 11.Based upon the said findings, the trial Court has proceeded to dismiss the suit. Challenging the said judgment and decree, the present first appeal has been preferred by the plaintiff. (c)Points for consideration: a)Whether the plaintiff has proved the execution of Ex.A1 sale agreement.? b)Whether the plaintiff has proved the passing of consideration under Ex.A1 sale agreement.? c)Whether the plaintiff was ready and willing to perform her part of the contract.? d)Whether the plaintiff is entitled to alternative relief of refund of advance amount.? (D) Submission of the counsels appearing on either side 12.The learned counsel appearing for the appellant submits that the defendant's mother had owed huge sum to the plaintiff and the plaintiff was contemplating legal action as against the defendant's mother. In order to avoid any such action, the defendant came forward to execute the suit sale agreement in favour of the plaintiff. On 08.11.2014, the agreement was entered into and the loan amount was treated as the sale consideration. The defendant had agreed to execute the sale deed as and when called upon by the plaintiff. In order to avoid any such action, the defendant came forward to execute the suit sale agreement in favour of the plaintiff. On 08.11.2014, the agreement was entered into and the loan amount was treated as the sale consideration. The defendant had agreed to execute the sale deed as and when called upon by the plaintiff. The trial Court was not right in arriving at a finding that there is no sale consideration that the plaintiff has failed to prove borrowals made by the defendant's mother. In fact, the plaintiff had examined herself as P.W.1 and the attestor namely, Ex.P.W.2 had categorically deposed about the borrowings made by the defendant's mother. When the plaintiff has established the sale consideration, the trial Court ought to have decreed the suit as prayed for. 13.The learned counsel appearing for the appellant further submits that the defendant had disputed her signature only for the purpose of evading the execution of the sale deed. The trial Court was not right in comparing the signature of the defendant found in Ex.A1 with that of the post suit documents, namely, vakalat, written statement and other documents found in the Court. 14.The learned counsel appearing for the appellant further submits that after executing the sale agreement in favour of the plaintiff, in order to save her mother from legal proceedings, the defendant and her mother have colluded with each other to avoid execution of sale deed. He further submits that the defendant alone would be in possession of her admitted signature so that they could be placed before the Court for comparing the same with the disputed signature in Ex.A1. The defendant having not produced her admitted signature, the Court could not shift the burden upon the plaintiff to establish the fact that the plaintiff has to prove the genuineness of Ex.A1 sale agreement. 15.The learned counsel appearing for the appellant further submits that Ex.A1 sale agreement itself is an acknowledgment of the fact that the defendant's mother has borrowed a sum of Rs.45,00,000/- from the plaintiff. Therefore, the plaintiff need not prove the payment of Rs.45,00,000/- to the mother of the defendant. 16.The learned counsel appearing for the appellant further submits that the entire sale consideration has already been adjusted in the borrowings made by the defendant's mother. Nothing was left to be performed on the part of the plaintiff. Therefore, the plaintiff need not prove the payment of Rs.45,00,000/- to the mother of the defendant. 16.The learned counsel appearing for the appellant further submits that the entire sale consideration has already been adjusted in the borrowings made by the defendant's mother. Nothing was left to be performed on the part of the plaintiff. Therefore, the trial Court was not right in arriving at a finding that the plaintiff has not established her readiness and willingness to perform her part of the contract. 17.The learned counsel appearing for the appellant further submits that since the loan amount was settled by execution of Ex.A1 sale agreement, there was no necessity for the defendant's mother to implead the plaintiff in the insolvency proceedings. Therefore, non-impleadment of the plaintiff in the insolvency proceedings initiated by the defendant's mother would not be a ground for arriving at a finding that there was no transaction between the plaintiff and the defendant's mother. Hence, he prayed for reversing the judgment and decree of the trial court and decree the suit for specific performance as prayed for. 18.Per contra, the learned counsel for the respondent/defendant submits that the defendant has taken a specific stand in the written statement about the forging of her signature and had demanded that the document should be sent for expert opinion. However, the plaintiff has failed to prove the execution of the document. It is the case of the plaintiff that the sale consideration for the suit sale agreement was the borrowings made by the defendant's mother. Therefore, unless the borrowings are established, Ex.A1 sale agreement would suffer for want of sale consideration. He further submits that the trial Court has rightly arrived at a finding that the execution of the sale agreement has not been proved and the plaintiff has not established the passing of sale consideration under the said agreement. He further contends that the evidence of the plaintiff/P.W.1 establishes the fact that the plaintiff has miserably failed to prove her case. Hence, he prayed for sustaining the judgment and decree of the trial Court. 19.We have carefully considered the submission made on either side and perused the materials available on record. (E) Discussion 20.The suit for specific performance has been laid by the plaintiff based upon Ex.A1 sale agreement dated 08.11.2014 said to have been executed by the defendant in favour of the plaintiff. 19.We have carefully considered the submission made on either side and perused the materials available on record. (E) Discussion 20.The suit for specific performance has been laid by the plaintiff based upon Ex.A1 sale agreement dated 08.11.2014 said to have been executed by the defendant in favour of the plaintiff. A perusal of the said document reveals that the defendant's mother has borrowed money and due to her inability to repay the said amount, a compromise was reached and the defendant has agreed to execute the suit sale agreement of the suit schedule property for a sum of Rs.45,00,000/-. It is further recorded in the document that the entire sale consideration of Rs.45,00,000/- has already been settled. The primary defence of the defendant is that due to misunderstanding, she has not been in terms with her mother and she further contends that she had never executed the sale agreement. The defendant further contends that she had never enjoyed the benefit of borrowings made by her mother. Therefore, the entire burden would be upon the plaintiff to establish not only the execution of Ex.A1 sale agreement by the defendant but also the passing of consideration under the said agreement. 21.A perusal of the deposition of P.W.1 reveals that the plaintiff is said to have paid a sum of Rs.45,00,000/- to the defendant's mother as a commission for getting loan of Rs.5,00,00,000/- from the Bank. Initially, the plaintiff is said to have paid a sum of Rs.15,00,000/- and later a sum of Rs.5,00,000/-. For the said amount, two cheques have been issued by the defendant's mother. Both the cheques were dishonoured when they are presented for encashment. According to the plaintiff, the defendant's mother is said to have given another cheque for Rs.45,00,000/- which has not been presented to the Bank. The plaintiff further states that three pro-notes and an undertaking document executed by the defendant's mother are in her custody. The plaintiff further states that she has not issued any legal notice to the defendant's mother either for the dishonour of the cheque or for repayment of the above said amount. 22.The plaintiff in her deposition had further admitted that on the date of Ex.A1 sale agreement, the defendant's mother has executed another undertaking document in favour of the plaintiff. That document has also not been produced before the Court. 22.The plaintiff in her deposition had further admitted that on the date of Ex.A1 sale agreement, the defendant's mother has executed another undertaking document in favour of the plaintiff. That document has also not been produced before the Court. She further submits that she is not aware of the fact that there is a bank loan over the suit schedule property. 23.P.W.1 has further deposed that on the date of execution of Ex.A1 sale agreement, she did not have any intention to purchase the suit schedule property but her only intention was to get back the money paid to the defendant's mother. She has further deposed that at the time of execution of Ex.A1 sale agreement, the defendant's mother has stated that she would be ready to pay the entire amount of Rs.45,00,000/- within a period of three months. The said fact is recorded in the undertaking agreement executed by the defendant's mother on the same day. The plaintiff has further deposed that at the time of sale agreement, the defendant was in Delhi and her Delhi address was not made known to her. 24.The plaintiff has further deposed that the defendant's mother has filed Insolvency Petition against 11 persons and she is not a party to the said proceedings. The plaintiff has further deposed that she is not aware of the fact whether the benefit of the borrowings were utilised for the defendant or not. P.W.1 has further stated that she has not paid any amount directly to the defendant. 25.A cumulative reading of Ex.A1 and the deposition of P.W.1 would clearly indicate the following facts:- a)Despite having the custody of pro-notes, cheques and an undertaking document dated 08.11.2014 said to have been executed by the defendant's mother, the plaintiff has not chosen to produce the same before the Court. Only on production of these documents, it could be established that payment of Rs.45,00,000/- was made to the defendant's mother. Non-production of these documents would clearly establish that the plaintiff has not proved the passing of sale consideration under Ex.A1 sale agreement; b)The plaintiff in her deposition has clearly admitted that she never had an intention to purchase the property under Ex.A1 sale agreement. She only wanted her money back. Non-production of these documents would clearly establish that the plaintiff has not proved the passing of sale consideration under Ex.A1 sale agreement; b)The plaintiff in her deposition has clearly admitted that she never had an intention to purchase the property under Ex.A1 sale agreement. She only wanted her money back. Even as per the deposition of the plaintiff, the mother of the defendant has executed another undertaking document dated 08.11.2014, undertaking to repay a sum of Rs.45,00,000/- within a period of three months. Therefore, it is clear that even assuming that Ex.A1 sale agreement was executed by the defendant, the same was obtained only as a security for the borrowings made by the defendant's mother and not with an intention to enforce the same to get a sale deed in favour of the plaintiff; and c)The defendant has specifically disputed her signature in the Ex.A1 sale agreement and has requested for sending the same for expert opinion. The plaintiff has not taken any steps to send the said document for expert opinion. In the said circumstances, the plaintiff has not discharged his burden to establish the execution of Ex.A1 sale agreement. 26.In view of the above said categorical deposition of the plaintiff, it is clear that the plaintiff has miserably failed to prove the execution of Ex.A1 sale agreement, passing of sale consideration and the enforceability of Ex.A1 sale agreement. In such circumstances, the trial Court has rightly dismissed the suit for specific performance. 27.When the plaintiff has admitted that she has not paid a sum of Rs. 45,00,000/- directly to the defendant and it has been established that the sale agreement was executed only as a security for the loan advanced to the defendant's mother, the trial Court has rightly rejected the alternative prayer for refund of the advance amount also. (F)Conclusion 28.In view of the above said deliberations, there are no merits in the first appeal. The judgment and decree of the trial Court are hereby confirmed and the first appeal stands dismissed. No costs. Consequently, connected miscellaneous petitions are also closed.