- (1.) The plaintiff who has lost her suit for specific performance of a sale agreement said to have been executed by the first defendant, and to declare a mortgage deed executed by the first defendant to the third defendant post the sale agreement, successively before the Courts below, has preferred this appeal. Parties would be referred to by their rank before the trial Court. Pleadings: A. Plaint
(2.) The dispute is over a plot measuring 1,500sq.ft allotted by the Tamil Nadu Housing Board to the first defendant. The plaint alleges: *? The suit property was allotted to the first defendant by the Housing Board on 12-02-1982, and there was an obligation on the first defendant to pay the sale consideration in monthly installments. The first defendant struggled for finances to pay the monthly installments. *? The plaintiff is a relative of the first defendant. To save the property from the peril of cancellation of allotment, in the eventuality of the first defendant failing to pay the monthly dues, it was agreed that the first defendant would sell the suit property to the plaintiff, for a total sale consideration of Rs.7,000/-. A sale deed too was executed on 13-01-1984. One of the attestors to the sale deed was the 2nd defendant, the husband of the first defendant. The sale deed however, could not be registered, as it was executed beyond the office hours of the Sub Registry. Possession of the suit property however, was handed over to the plaintiff. Ever since, she has been in possession of the suit property. After the execution of the sale deed that was awaiting registration, the plaintiff began paying the monthly installments payable to the Housing Board. It was agreed to between the parties that a regular sale deed would be executed immediately after the payment of last instalment. *? Be that as it may, plaintiff's husband died on 28-12-1984. Since the relationship between the parties remained cordial, the plaintiff has been merely requesting the first defendant and her husband, the second defendant to execute the sale deed. *? Even as the plaintiff was waiting for the registration of the sale deed to go through, on 09-06-1992, the first defendant had obtained a sale deed from the Housing Board. Subsequently, the defendants 1 and 2 had mortgaged the entire property with the 3rd defendant for a sum of Rs.4.0 lakhs. That was on 23-01-1998. The plaintiff came to know of these developments only when the 3rd defendant brought the property to sale. All along the plaintiff continued to be in peaceful physical possession of the property for well over 15 years (at the time of filing the suit). *? Soon, the plaintiff faced the threat of dispossession as she was required to vacate the property within a stipulated date. She therefore issued a notice dated 11-01-1999 (Ext.A7) to the first respondent, but it was not replied. This was therefore, followed by a legal notice issued through her Advocate dated 26-03-1999, (Ext.A8) to execute the sale deed free of mortgage. This was responded to by the first defendant with her reply dated 07-04-1999 (Ext.A9). It is alleged in the said reply that plaintiff's son Narayanan was a tenant in the suit property since 1985, and that the plaintiff resided along with him only as his dependent. This necessitated the plaintiff to issue Ext.A10 rejoinder dated 16-04-1999, clarifying the fact that her son did not live with her in the suit property. *? As things stood thus, the 3rd defendant, the mortgagee of the suit property, notified the sale of the suit property by public auction through its auctioneer. Since, the first defendant did not have any right to execute the mortgage deed in favour of the third defendant, the sale itself has to be stopped. Hence, the suit for specific performance along with a prayer to declare the mortgage executed in favour of the 3rd defendant as void, is laid. B. The Written statements:
(3.) All the three defendants have filed separate written statements. The second defendant, however, has only adopted the written statement of his wife, the first defendant. 3.1 In her written statement the first defendant takes the following defenses: *? It is true that the suit property was allotted to the first defendant by the TNHB under a lease cum sale agreement dated 18-05-1982. The total consideration payable as per the said agreement was Rs.14,815/-. In deference to the terms of the said agreement, the first defendant obtained building-plan approval, put up the residential building in the suit property, and same came to be assessed to property tax. *? At no time this defendant was in any financial difficulties, and in fact she paid the entire consideration payable to TNHB. Consequent to the payment of all the installments and construction of the building as was required to be done in terms of the first defendant's agreement with the TNHB, the latter executed a sale deed in favour of the former on 10-06-1992. *? So far as the sale agreement is concerned, plaintiff's husband and first defendant's husband (the second defendant) are brothers. Since the 2nd defendant wanted to help his brother, it was agreed that this defendant should put up a house within six months and within 3 months thereafter should obtain a sale deed from TNHB. An advance of Rs.7,000/- was received and an additional advance of Rs.30,000/- was to be paid within three months thereafter, and the sale deed was to be executed in favour of the plaintiff within three months next after the TNHB executed the sale deed in favour of the first defendant. The Power of Attorney in favour of the plaintiff's husband came to be executed as it was felt that he might be of some help during construction. The PoA was limited to granting power for obtaining plans, permit for payment of installments to TNHB and to obtain receipts, and to make arrangement for sale of the constructed house. A declaration dated 13-01-1984 too was executed by this defendant. She had also singed few non-judicial stamp papers and also on blank papers. The second defendant too had signed a few blank papers as required by his brother, the husband of the plaintiff. These were done at the insistence of plaintiff's husband. *? The alleged sale consideration as Rs.7,000/- is denied, and what was agreed was Rs.47,000/-. The consideration for the vacant plot itself is Rs.14,815/- to which must be added the value of the building, which might at the relevant time would be around Rs.50,000/-. *? But as the plaintiff could not pay the balance sale consideration, the sale agreement itself came to be cancelled, and the advance amount was repaid to the plaintiff. However, shortly thereafter, the plaintiff's husband fell sick and wanted the amount back. This was paid, and the sale agreement earlier executed was cancelled with the agreement holder making necessary endorsement on it. *? The sale agreement itself is a fabrication, which came into existence when the blank, signed stamped papers were misused to create one. *? The document dated 13-01-1984 which the plaintiff claims as a sale agreement dated 13-01-1984, is in fact a sale deed, which has not been registered in terms of Sec.17 of the Registration Act. Besides, this document is not a bi-party agreement. *? The suit is barred by limitation as it seeks to enforce a transaction said to have taken place on 13-01-1984 in 1999. *? As the rightful owner of the property, the first defendant has every right to mortgage the suit property. *? Turning to the alleged possession of the plaintiff in the manner she claimed, the first defendant had completed construction of her house in October, 1985. It was then leased to plaintiff's son Narayanan. The plaintiff is in occupation of the property, solely as Narayanan's dependent mother, and there is no jural relationship between the plaintiff and the first defendant. Once Narayanan became the tenant of the house, this defendant required him to pay the monthly installment of Rs.160/- to the TNHB, and the balance Rs.40/- to her. Since Narayanan was their nephew, neither of defendants 1 and 2 insisted their tenant to hand over the receipts issued by TNHB. *? It is true that this defendant was in receipt of the first notice. Following this, the second defendant met Narayanan and the plaintiff to enquire about the notice to which both pleaded total ignorance. 3.3 The third defendant's written statement is only about sustaining the mortgage deed executed by the first defendant.;