TaxTMI 
TaxTMI 
2010 (3) TMI 1261
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....rmission of the competent Court in so far as the share of minors - Defendants 2 and 3. Jayaram - 1st Defendant's husband was the absolute owner of the suit property and he died intestate on 3.8.1991. After death of Jayaram, Venkatalakshmi mother of of Jayaram and Snehalatha, sister of Jayaram have relinquished their right in the suit property in favour of Defendants by virtue of Ex.A.19 - release deed. Further case of Plaintiff is that to obtain permission of the Court to alienate the shares of minors, the 1st Defendant filed H.M.G.O.P.No.433 of 1994 before the Sub-Court, Coimbatore. In the said H.M.G.O.P., Plaintiff filed application I.A.No.457 of 1995 to implead herself. According to Plaintiff, with an intention to defeat the legitimate right of Plaintiff, by filing memo, 1st Defendant has not pressed the main O.P., and the Court dismissed the H.M.G.O.P., as well as her impleading petition. According to the Plaintiff, she was always ready and willing to perform her part of contract. Only the Defendants have not honoured their commitments under the sale agreement. After issuance of the pre-suit notice Ex.A.13, which was acknowledged by the Defendants, the Defendants have....
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.... sale was for benefit and welfare of minors, Whether 1st Defendant can validly execute the sale deed and Whether Plaintiff is entitled for the relief of specific performance. 8. In the trial Court, Plaintiff examined herself as P.W.1. Tenant in the shop was examined as P.W.2. Krishnamurthy attesting witness to Ex.A.1 and who negotiated for sale was examined as P.W.3. Brother of Plaintiff was examined as P.W.4 and the Manager of Vijaya Bank was examined as P.W.5. Exs.A.1 to A.26 were marked on Plaintiff's side. On the Defendant's side, 3rd Defendant was examined as D.W.1. To bring home the value of property, Pitchaiappan, Civil Engineer was examined as D.W.2. Exs.B.1 to B.3 were marked on the Defendant's side. 9. Upon consideration of oral and documentary evidence and referring to evidence of D.W.1 - 3rd Defendant, trial Court held that signature in Ex.A.1 agreement of sale does not appear to be signature of 1st Defendant late Padmini. Trial Court faulted the Plaintiff for not taking steps to examine her father Santhanam, who has signed as first witness in Ex.A.1 and trial Court held that execution of Ex.A.1 was not properly proved. However,....
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.... and nothing adverse could be attributed to 3rd Defendant (D.W.1). Placing reliance upon AIR 1994 KARNATAKA 271 (SMT.MANGALA VS. SMT.JAYABAI AND OTHERS) and AIR 1997 MADRAS 40 (THIRUMALAISWAMI GOUNDER VS. PARVATHIAMMAL (DIED) AND OTHERS), it was further contended that when the widowed mother was not the legal guardian and she cannot meddle with the property and 1st Defendant ought to have obtained permission from the Court for selling the property even for entering into the agreement of sale and while so without obtaining permission she could not have validly entered into agreement of sale. 12. We have carefully considered the submissions of both sides. Upon analysis of evidence and materials on record and judgment of the trial Court and the rival contentions, the following points arise for consideration. (1) Whether the trial Court was right in saying Ex.A.1 - agreement of sale is not proved to be genuine? (2) Whether Ex.A.1 - agreement of sale is true and binding upon Defendants No.2 and 3? (3) Whether obtaining sanction from competent Court for entering into the agreement for alienat....
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....ave executed Ex.A.19 release deed dated 2.5.1992. As per Ex.A.19, Venkatalakshmi has relinquished her 1/12th share and Snehalatha has relinquished her right in the suit property. The relevant portion in Ex.A.19 reads thus: @fhyk;brd;w b$auhk; mth;fs; kidtpa[k; 1 yf;fkpl;ltUf;F 1.V.VENKATALAKSHMI 2.S.SNEHALATHA 6-------- kUkfSk; 2 yf;fkpl;ltUf;F rnfhjuh; kidtpa[khd n$/gj;kpdpf;Fk; 2. 3 yf;fkpl;l ikdh;fSf;Fk; fPH;f;fhQqk; tPL tifawh brhj;jpy; v';fspy; 1 yf;fkpl;ltUf;F 1-12 g';F ghj;jpaija[k; 2 yf;fkpl;ltUf;F fPH;f;fhQqk; brhj;ijg; bghWj;J bfhz;lhLk; chpika[k; ,jd; K:yk; ,d;W eh';fs; tpLjiy bra;JbfhLj;J mjw;fhf c';fspd; brhe;j ifapUg;gpypUe;J 1 yf;fkpl;ltUf;F U:/40.000-= (U:gha; ehw;gjhapuk;) Kk; 2 yf;fkpl;lth; U:/15.000-= (U:gha; gjpide;jhapuk;) Kk; fPH;fz;l rhl;rpfs; Kd;gl bgw;Wf;bfhz;nlhk;/----------- v';fSf;F cz;lhd g{uz ghj;jpaija[k; chpika[k; fPH;f;fhQqk; brhj;ijg; bghWj;J ,jd;K:yk; c';fSf;F tpLjiy bra;Jtpl;lgoahy; ,dpnky;bfhz;L fPH;f;fhQqk; brhj;ij eP';fSk; c';fs; ikdh;fSk; jhdhjp tpdpka tpw;fpua';f fijaha; rh;t Rje;jpu ghj;jpa';fSld; Mz;L mDgtpj;Jf;bfhs;s ntz;oaJ/@ 16. From Ex.A.1, following aspects emerge: No Will was referred ....
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..../- and that Plaintiff has paid advance of Rs. 3,20,000/- by way of demand draft to the 1st Defendant. Much weight has to be attached to the evidence of P.W.3, who is an attesting witness and also negotiated for sale. 21. P.W.3 being an independent witness, absolutely there is no reason to doubt his evidence. P.Ws.1 and 3 have consistently spoken about the execution of Ex.A.1 agreement of sale and payment of advance amount of Rs. 3,20,000/-. The oral evidence of P.Ws.1 and 3 is also corroborated by the conduct of parties and other evidence and circumstances. Payment of Rs. 3,20,000/- by way of Demand Draft/ Pay Order is strengthened by Ex.A.2 (29.6.1994) - Pay Order and Ex.A.26 certificate issued by Vijaya Bank in respect of Pay Order. That apart, P.W.5 Manager of Vijaya Bank has also spoken about the issuance of Pay Order drawn in the name of Padmini (1st Defendant) and that the amount was paid by their bank. Evidence of P.W.5 coupled with Exs.A.2 and A.26 would amply strengthen the recitals in Ex.A.1 agreement of sale. Trial Court has not at all kept in view of this vital piece of evidence of payment of Rs. 3,20,000/-. Trial Court was not right in ignori....
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....tten by that person. Even if no expert has been examined, the Court is competent to compare the admitted or proved wrongs with the disputed writing. But prudence demands that the Court should be extremely slow in venturing to form an opinion on the basis of some comparison. As to comparison of signature or writing by the Court, the Supreme Court in AIR 1979 SC 14 (STATE (DELHI ADMN.) Vs. PALIRAM) held that "Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert." 26. The Court, as a matter of prudence and caution, should hesitate or be slo....
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....eme Court has framed three requisites for the Appellate Court to reverse the finding of trial Court as follows:- 33. Three requisites should normally be present before an Appellate Court reverses a finding of the trial Court: (i) It apply its mind to reasons given by the trial court; (ii) It has no advantage of seeing and hearing the witnesses; and (iii)It records cogent and convincing reasons for disagreeing with the trial Court. 30. When there is a conflict of oral evidence on any matter in issue and its resolution turns upon the credibility of the witnesses, the general rule is that the Appellate Court should permit the findings of fact rendered by the trail Court to prevail unless it clearly appears that some special feature about the evidence of a particular witness has escaped the notice of the trial Court. 31. P.Ws.1 and 3 have consistently spoken in one voice about the execution of Ex.A.1 by the Plaintiff and 1st Defendant and payment of advance sale consideration of Rs. 3,20,000/- as part of sale consideration , which is also strengthened by Ex.A.2 pay Order dated 29.6.1994 drawn in favour ....
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....ons, the guardian of the minors has filed petition seeking for permission to sell the property for a lesser price of Rs. 12 lakhs. In their memo of objection, the objectors have raised strong objection for granting permission on the ground that the property would fetch more than Rs. 20 lakhs to Rs. 30 lakhs and raised an objection for grant of permission. 34. While H.M.G.O.P.No.433 of 2004 was pending and objectors have filed objection, noticing difficulties in getting the sale deed executed, Plaintiff has filed I.A.No.451 of 1995 under Order I Rule 10 of Civil Procedure Code to implead herself as a party Respondent in H.M.G.O.P proceedings. In the said impleading application, Plaintiff has brought it to the notice of the Court about the suit sale agreement for Rs. 16,75,000/- and about payment of advance sale consideration of Rs. 3,20,000/- by way of pay Order dated 29.6.1994 drawn in favour of 1st Defendant at Vijaya Bank as part of sale consideration. In the impleading petition, Plaintiff has further averred that after paying advance amount of Rs. 3,20,000/-, she has been waiting all along and Plaintiff has also filed the documents along with the petition viz., (i) xero....
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....ithout sanction from the Court it is not open for the Appellants to contend that in the absence of such sanction in respect of the minor's share the same cannot be compelled to be sold by enforcing the agreement of sale. In support of his contention, learned Senior Counsel placed reliance upon 1997(II) CTC 602 (K.LOGAMBAL AND 3 OTHERS VS. V.V.SAKUNTHALA AND 6 OTHERS), wherein it was held as under: "This Question as to the necessity for obtaining the sanction of the District Court under Section 8 of the Hindu Minority and Guardianship Act in a matter of the kind in the case by mother of the minor child in respect of a property belongingto the joint family in the absence of the father, and in her capacity as the manager, and natural guardian came up directly for consideration before the Apex Court in the decision in Sri Narayan Bal and others and Sri Sridhar Sutar and others, (1996) 1CTC 390 : 1996 (1) Supreme 638." 37. Dealing with the said issue, the Supreme Court in Sri Narayan Bal and others and Sri Sridhar Sutar and others, 1996 (1) Supreme 638, has held thus: "4. Section 6 of the Act inter alia provides that the natural guardians of a Hindu minor, in re....
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....ent of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered." 39. The decision of the Division Bench of this Court in 1997 (II) CTC 602 was cited before the trial Court. However, the learned trial Judge did not choose to answer the issue as to whether obtaining sanction/permission of the Court was necessary or not and whether the non-obtaining of sanction of the Court was an impediment in execution of the sale deed. But the learned trial Judge side-tracked the issue by observing that the sale will not be in the interest and welfare of the minor children and that there are no recitals in Ex.A.1 agreement of sale that the sale is intended for the welfare of the minor children. 40. It is fairly well settled that under Section 8, a natural guardian of the property of the Hindu minor before he disposes of any immovable property of the minor, must seek permission of the court. But since there need ....
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....and while so it cannot be contended that the sale consideration of Rs. 16,75,000/- being a lesser amount could not have been for the welfare of the minors. In our considered view, evidence of D.W.2 and his report and plan Exs.B.2 and B.3 as to the value of the building in 2000 is of no assistance to the Defendants. 43. The 1st Defendant has entered into Ex.A.1 agreement of sale. As elaborated earlier, P.W.1 has advanced Rs. 3,20,000/-, which is fortified by the oral evidence of P.W.3 and by the recitals of Ex.A.1. Evidence of P.W.5 Manager of Vijaya Bank establishes the payment of sale advance of Rs. 3,20,000/- under Ex.A.2 Pay Order. Ex.A.26 certificate issued by the Bank would also strengthen the case of Plaintiff as to the payment of advance of Rs. 3,20,000/-. 44. Only as per the covenants in Ex.A.1 agreement of sale, 1st Defendant has filed H.M.G.W.O.P.No.433 of 1994 seeking permission of the Court to transfer the 1/3rd share of minors, which she has later withdrawn. As pointed out earlier, when Plaintiff has filed impelading Petition - I.A.No.451 of 1995 in H.M.G.O.P.No.433 of 1994, 1st Defendant has strongly resisted the same by filing coun....
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.... As per Section 20 of the Specific Relief Act discretion as to decreeing specific performance, grant of decree for specific performance of contract is not automatic and is one of the discretions of the Court and the Court has to consider whether it would be fair, just and equitable. But the discretion of the Court is not arbitrary. But the one of the sound and reasonable and discretion guided by Principles of Justice, equity and good conscience. In Section 20(2) of the Act, certain circumstances have been mentioned as to under what circumstances, the Court shall exercise such discretion. If under the term of the contract the Plaintiff gets an unfair advantage over the Defendant, the Court may not exercise its discretion in favour of the Plaintiff. So, also specific relief may not be granted if the Defendant would be put to undue hardship which he did not foresee at the time of agreement, if it is inequitable to grant specific relief, then also the Court would desist from granting a decree to the Plaintiff. In exercising discretion, court is obliged to take into consideration circumstances of the case, conduct of the parties and respective interests under the contracts. 4....
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....and frivolous defence, in (2005) 6 SCC 344 (SALEM ADVOCATE BAR ASSOCIATION VS. UNION OF INDIA), the Supreme Court has held as under: "37. Judicial notice can be taken of the fact that many unscrupulous parties take advantage of the fact that either the costs are not awarded or nominal costs are awarded against the unsuccessful party. Unfortunately, it has become a practice to direct parties to bear their own costs. In a large number of cases, such an order is passed despite Section 35(2) of the Code. Such a practice also encourages the filing of frivolous suits. It also leads to the taking up of frivolous defences. Further, wherever costs are awarded, ordinarily the same are not realistic and are nominal. When Section 35(2) provides for cost to follow the event, it is implicit that the costs have to be those which are reasonably incurred by a successful party except in those cases where the court in its discretion may direct otherwise by recording reasons therefor. The costs have to be actual reasonable costs including the cost of the time spent by the successful party, the transportation and lodging, if any, or any other incidental costs besides the payment of the court f....