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TMI Blog2010 (3) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... dants 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 not chosen to reply. Hence, the Plaintiff has filed the suit for specific pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, there was no specific finding recorded by trial Court as to whether Ex.A.1 is true or genuine. Poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 alienation of share of minors is not necessary as contended by the Appellant? (4) Whether the 1st Defendant has committed breach of contract as contended by the Appellant/Plaintiff? (5) In the facts ..... 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From Ex.A.1, following aspects emerge: No Will was referred to in Ex.A.1; Venkatalakshmi and Snehalatha have relinquished their right in favour of Defendants 1 to 3 indicating that Jayaram could not have been given life interest. 1st Defendant does have a share in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 ₹ 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 ₹ 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 ₹ 3,20,000/-. Trial Court was not right in ignoring this circumstance of filing H.M.G.O.P.No.433 of 1994. 22. As per the recitals in Ex.A.1 agreement of sale, 1st Defendant has to obtain permission from the Court for alienation of minor's share. Pursuant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arison. 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 slow to base its findings solely on the comparison made by the Court. However, if there is an opinion, whether of the expert or any witness, the Court may apply its own observation by comparing the signatures or handwriting for giving a decisive weight and arrive at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 ₹ 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 of 1st Defendant at Vijaya Bank. We are of the view that the trial Court was not right in brushing aside the consistent version of P.Ws.1 and 2. While analysing the oral evidence, the trial Court did not keep in view the other facts surrounding the circumstances fortifying the genuineness of Ex.A.1. Finding of trial Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hile 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 ₹ 16,75,000/- and about payment of advance sale consideration of ₹ 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 ₹ 3,20,000/-, she has been waiting all along and Plaintiff has also filed the documents along with the petition viz., (i) xerox copy of the sale agreement dated 30.6.1994; and (ii) xerox copy of Pay Order for ₹ 3,20,000/- in favour of 1st Defendant drawn on Vijaya Bank. The 1st Defendant resisted the impleading petition contending that the Plaintiff is not a necessary party in H.M.G.O.P.No.433 of 1994. When the matter stood thus, 1st Defendant has withdrawn H.M.G.O.P. as not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... HALA 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 respect of the minors person as well as in respect of the minors property (excluding his or her undivided interest in joint family property), are in the case of a boy or an unmarried girl the father, and after him, the mother; provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother. Section 8 thereo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion 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 be no natural guardian for the minor's undivided interest in the joint family property, as provided under sections 6 and 12 of the Act, the previous permission of the Court under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. 41. Even though such permission of the Court is not required for alienation of minor&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 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 ₹ 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 ₹ 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 counter and objecting to the impleading petition on the ground that the Plaintiff is not a necessary and proper party to H.M.G.O.P. As per the terms in Ex.A.1 agreement of sale, after obtaining permission of the Court and after getting income-tax clearance, the 1st defendant has to execute the sale deed. In our considered view, withdrawing of H.M.G.O.P.No.433 of 1994 is a clear act of breach of contract committed by the 1st Defendant. 45. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ood 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. 48. The mother of Defendants 2 and 3, who were then minors, had entered into Ex.A.1 - agreement of sale in entirety of the property. Now mother has passed away and the Defendants No.2 and 3 cannot be compelled to execute the agreement of sale at this distant point of time. Having regard to the facts and circumstances of the case and that now the value of the property in Coimbatore had gone up, the decree for specific performance would caus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fee, lawyers fee, typing and other costs in relation to the litigation. It is for the High Courts to examine these aspects and wherever necessary make requisite rules, regulations or practice direction so as to provide appropriate guidelines for the subordinate courts to follow. 53. Even though we have held that execution of Ex.A.1 has been proved and the Plaintiff was ready and willing to perform her part of the contract, on equi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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