KALIAPERUMAL PADAYACHI Vs. KALIYAPERUMAL PADAYACHI

JUDGEMENT

(1.) THIS appeal has been preferred against the decree and judgment passed in O.S.No.75 of 1991 on the file of the Principal Sub-Court, Cuddalore. The suit was filed for specific performance of agreement of sale executed by the defendant in favour of the plaintiff under Ex.A.1 to Ex.A.3.

(2.) THE facts in brief in the plaint are as follows: THE plaint schedule property belongs to the defendant. THE defendant agreed to execute the sale deed in favour of the plaintiff and thereupon entered into a sale agreement dated 15.09.1990. THE agreed sale price was Rs.94,367/-. As per the terms of the agreement a sum of Rs.42,667/- was paid towards advance and the balance of sale consideration of Rs.51,700/- was agreed to be paid on or before 15.10.1990 and it was agreed between both the parties that if the plaintiff fails to perform his part of the contract he has to forego the advance amount paid by him and in case of failure of the defendant to perform his part of the contract then the plaintiff was given a liberty to approach the Civil Court to get his appropriate remedy. Due to some unavoidable circumstances in the family the defendant had asked for further time to perform his part of the contract. THE defendant after receiving Rs.15,000/- from the plaintiff had agreed to execute the sale deed on or before 11.12.1990 as per another agreement of sale dated 10.12.1990. Even under the sale agreement default clause was attached, as in the earlier sale agreement. At the request of the defendant for time to submit original document, another sale agreement was entered into between the plaintiff and the defendant on 7.12.1990. As per the said sale agreement the defendant had agreed to receive a sum of Rs.36,700/- from the plaintiff. THE defendant agreed to execute the sale deed in respect of the plaint schedule property on or before 6.3.1991. on the basis of the above said sale agreement the defendant has also handed over the possession in respect of the suit property to the plaintiff. After taking possession of the suit property the plaintiff has planted cashew in the suit property and also applied pesticides to those trees. Ten days prior to the filing of the suit the defendant has trespassed into the suit property and had taken redelivery of the possession. THE plaintiff issued suit notice. THE defendant has sent a false reply on 4.3.1991. THE sale agreement dated 7.12.1990 is a genuine document. Hence the plaintiff has filed the suit for specific performance of the contract as per the sale agreement dated 7.12.1990.

(3.) THE point:- THE learned counsel appearing for the appellants would contend that Ex.A.1-sale agreement alone has been entered into between the plaintiff and the defendant and the other sale agreement under Ex.A.2 and Ex.A.3 are not genuine documents. But on comparison of the signature contained in Ex.A.1 with that of Ex.A.2 & A.3 will clearly go to show that in all the three documents contain the signature of the defendant as well as the plaintiff. To rebut the evidence of the plaintiff under Ex.A.1 to Ex.A.3 there is no rebuttal evidence adduced by the defendant to show that Ex.A.2 and Ex.A.3 are forged documents. THE plaintiff has examined P.W.2, one of the attestors to Ex.A.2 and Ex.A.3 and the scribe of the documents Ex.A.1 to Ex.A.3, Athimulam as P.w.3. THE learned counsel appearing for the appellant relying on the evidence of P.W.3, scribe, contended that no advance amount was paid by the plaintiff to the defendant under Ex.A.2. But in the re-examination he would admit that since both the parties agreed, the recital in Ex.A.2 was written to the effect that a sum of Rs.52,667/- was paid towards part of the sale consideration. So as per Ex.A.2 recital a sum of Rs.52,667/- was paid towards part of sale consideration. So, the oral evidence of P.W.3 cannot prevail against the documentary evidence under Ex.A.2 as per section 92 of the Evidence Act, which runs as follows: "When the terms of any such contract, grant or other disposition of property, or any matter, required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms: Proviso (1): Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto : such as fraud, intimidation, illegality, want of due execution was not of capacity in any contracting party, want or failure of consideration, or mistake in fact or law. Proviso (2): THE existence of any separate oral agreement any mater on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not his proviso applies, the Court, shall have regard to the degree of formality of the document. Proviso (3): THE existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4): THE existence of any distinct subsequent oral agreement to rescind or modify and such contract, grant or disposition of property, may be proved, except incases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents. Proviso (5): Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved: Proviso (6): Any fact may be proved which shows in what manner the language of a document is related to existing facts. P.W.2 is an attestor to Ex.A.2 and Ex.A.3 and he would categorically depose that Ex.A.2 and Ex.A.3 are genuine documents. THE recital in Ex.A.3 the alleged sale agreement entered into between the plaintiff and the defendant dated 7.12.1990 will go to show that out of the sale consideration of Rs.94,367/- a sum of Rs.42,667/- was paid toward part of sale consideration on 15.9.1990 when Ex.A.1 was executed by the plaintiff to the defendant and out of the balance of Rs.51,700/- a sum of Rs.15,000/- was paid on 12.10.1990 by the plaintiff to the defendant and out of the balance of Rs.46,700/- only a sum of Rs.36,700/- is agreed to be paid before 6.3.1991. It is seen from Ex.A.1 to Ex.A.3 that both the parties have not given any importance to the time as the essence of the contract. So the learned trial Court after analysing the entire evidence on both oral and documentary and under Ex.A.1 to Ex.A.3 has come to a definite conclusion that the plaintiff has proved his case to the effect that he was all along ready and willing to perform his part as per Ex.A.1 to Ex.A.3, and has decreed the suit as prayed for. I do not find any reason to interfere with the well considered order of the learned trial Judge, which does not warrant any interference from this Court. Point is answered accordingly.