(Prayer: Appeal Suit filed under Order 41 Rule 1 read with Section 96 of the Code of Civil Procedure, 1908 against the Judgment and Decree dated 27.02.2019 made in O.S.No.300 of 2008 on the file of IV Additional District Court, Erode District at Bhavani and allow the appeal.)

1. This appeal is against the judgment and decree dated 27.02.2019 in O.S.No.300 of 2008, on the file of the IV Additional District Court at Bhavani, Erode District. By that judgment, the trial court decreed the suit for specific performance of an agreement of sale, delivery of possession, and a permanent injunction.

2. The suit was filed on 10.11.2008. The first defendant is the father of defendants 2 and 3. The fifth defendant is his wife. The fourth defendant is described in the plaint only as an associate of the other defendants. The appellants are defendants 1 to 3. Respondents 1 to 5 are plaintiffs 2 to 6, who were brought on record as the legal representatives of the original plaintiff, Arumugam, following his death during the suit. Respondents 6 and 7 are defendants 4 and 5. The parties are referred to by their rank before the trial court.

3. The plaintiff’s case is that on 18.04.2008, the first defendant, for himself and as father and guardian of defendants 2 and 3, executed the agreement of sale under which the suit property was agreed to be sold to the plaintiff for Rs.14,34,600/- A sum of Rs.4,34,600/- was paid and acknowledged as an advance. The balance of Rs.10,00,000/- was payable on or before 15.09.2008. The property measures 1 acre and 34 cents in R.S.No.204/1, Orichery Village, Bhavani Taluk, Erode District, together with a well, a 5 H.P. electric motor, a pump set, and a service connection.

4. The plaintiff repeatedly called upon defendants 1 to 3 to receive the balance consideration and execute the sale deed. Before the agreed date expired, he issued a legal notice dated 06.09.2008 and sent a telegram on the same date. The defendants were called upon to attend the Sub-Registrar’s Office at Bhavani to complete the sale. The plaintiff stated that he remained at the Sub-Registrar’s Office on 11.09.2008 and, to record his presence, signed as an attesting witness to an unrelated sale deed registered that day as Document No. 3922 of 2008.

5. The plaintiff pleaded that the first defendant had sent the reply notice dated 13.9.2008, where the first defendant admitted execution of the sale agreement in that reply but claimed that the document was connected with a loan transaction.

6. The plaintiff also relied on a notice dated 09.09.2008, issued by the fifth defendant. In that notice, she stated that she was living separately from the first defendant and raised objections on behalf of herself and defendants 2 and 3. The plaintiff sent a reply dated 12.09.2008, denying the alleged separation and asserting that the defendants were acting together to defeat the agreement. The plaintiff pleaded that he was always ready and willing to perform his obligations and was prepared to deposit the balance consideration if directed by the Court. He sought specific performance, possession and an injunction. In the alternative, he sought a refund of the advance with interest at 24% per annum.

7. The case of the defendants 1 to 3 is that they admitted the execution of the sale agreement but denied that it was intended to operate as an agreement of sale. He pleaded that he required a loan of Rs. 4,00,000 in April 2008; that the plaintiff agreed to advance the amount only if a registered sale agreement was executed as security; that interest at 12% per annum was agreed; and that the document was to be cancelled upon repayment within three years. He further pleaded that he later mortgaged the property to Natarajan for Rs.7,50,000/- to raise money to repay the plaintiff, but the plaintiff refused to accept the repayment. He also referred to the matrimonial proceedings and the decree for maintenance in O.S.No.330 of 2008, under which a charge was created over the suit property.

8. On 03.09.2018, the trial court framed issues as to whether Ex.A1 was true and valid, whether it was executed solely as security for a loan, whether the plaintiff was entitled to specific performance and an injunction, and what other relief should be granted.

9. On the plaintiffs' side, the second plaintiff, A.Namachivayam, was examined as P.W.1. Lakshmanan, alias Lakshmi Narayanan, who acted as broker and attesting witness, was examined as P.W.2. The document writer, S.Umashankar, was examined as P.W.3. Umarani, daughter of the deceased second attesting witness, Arthanarisamy, was examined as P.W.4. Exs.A1 to A16 were marked. The material documents include Ex.A1 sale agreement; Ex.A2 notice; Exs.A3 to A5 acknowledgments; Ex.A6 telegram; Ex.A7 delivery confirmation; Ex.A8 sale deed showing the plaintiff's presence at the Sub-Registrar Office; Exs.A9 and A10 notices exchanged with the fifth defendant; Ex.A13 sale deed executed through Court on 23.06.2017; Ex.A14 mortgage discharge receipt; and Ex.A15 release deed dated 04.11.1988, executed by the first defendant's mother and sister.

10. On the defendants’ side, the first defendant was examined as D.W.1, and Sundaram as D.W.2. Exs.B1 and B2 are the decree and judgment in O.S. No.330 of 2008. Ex.X1 is the death certificate of Arthanarisamy, dated 11.07.2011; Ex.X2 is the legal-heir certificate, dated 20.03.2017; Ex.X3 is a xerox copy of Umarani’s Aadhaar card; and Ex.C1 is the unserved summons issued to witness Arthanarisamy.

11. The trial Court held that Ex.A1 was a genuine agreement of sale, not a document executed as security for a loan. It relied on the specific figures for total consideration and advance, the short period fixed for payment of the balance, the plaintiff's notice before that period expired, the first defendant's education and financial experience, the inconsistency between the written statement and D.W.2's evidence, and the absence of reliable documents supporting the alleged loan. It also regarded the later mortgage and maintenance proceedings as intended to obstruct the plaintiff's rights.

12. The trial Court also recorded the earlier ex parte decree dated 09.04.2009, the subsequent restoration of the suit, and the Court’s execution of a sale deed on 23.06.2017, marked as Ex.A13. It held that a further direction to execute a sale deed was unnecessary. It directed the defendants to withdraw the deposited amount and to deliver possession within one month.

13. Aggrieved by the judgment and decree dated 27.02.2019, defendants 1 to 3 have preferred the present appeal, contending that the Trial Court failed to appreciate that Ex.A1 was executed solely as security for a loan transaction, not as an agreement of sale. They further contend that the plaintiffs neither pleaded nor proved continuous readiness and willingness, that the balance consideration was deposited only subsequently, and that no sufficient evidence was produced to establish the financial capacity of the original plaintiff. It is also urged that the evidence of DW2 was improperly rejected and that the first defendant had no authority to enter into the agreement on behalf of the minor defendants without permission of the Court.

14. Learned counsel for the appellants submitted that Ex.A1 was never intended to operate as an agreement of sale, but was executed solely as security for a loan of Rs.4,00,000/- obtained from the first plaintiff, who was described as a financier. It was contended that the plaintiffs resided in Salem, about 50 kilometres away from the suit property in a remote village in Erode District, and that the surrounding circumstances supported the appellants’ case that the transaction was a loan, not an intended sale.

15. Learned counsel further submitted that the appellants were prepared to repay the loan of Rs.4,00,000/- together with interest. It was also noted that the costs relating to the Court-executed sale deed had already been paid, in compliance with the condition imposed for setting aside the earlier ex parte decree. The appellants therefore sought reversal of the decree for specific performance. Reliance was placed on K. Kanagasabai v. R. Sankar, reported in 2019 SCC OnLine Mad 39107.

16. Learned counsel for the first respondent/plaintiff submitted that the execution of the sale agreement dated 18.04.2008, marked as Ex.A1, was expressly admitted by the first appellant. Ex.A1 records the total sale consideration as Rs.14,34,600/- and the payment of Rs.4,34,600/- as an advance. Although the first defendant alleged that he had borrowed only Rs.4,00,000/- and executed Ex.A1 as security, no satisfactory explanation was offered for the additional sum of Rs.34,600/- recited in the agreement. In the absence of any acceptable evidence, or of a plea of fraud, coercion or misrepresentation, the appellants could not contradict the recitals of the written instrument contrary to Sections 91 and 92 of the Evidence Act. The execution and intended nature of Ex.A1 were also established by the evidence of PWs.1 to 4, including the attesting witness. In contrast, the appellants failed to discharge the burden of proving that it was merely a security document. The distance between the plaintiffs’ residence and the suit property was wholly irrelevant to the validity of the transaction.

17. Learned counsel further submitted that the first plaintiff had issued the pre-suit notice, deposited the balance consideration of Rs.10,00,000/- before the Trial Court, and obtained the Court-executed sale deed dated 23.06.2017. These circumstances established continuous readiness and willingness within the meaning of Section 16(c) of the Specific Relief Act. The mere inclusion of an alternative prayer for refund would not defeat the principal relief of specific performance, nor had the appellants pleaded and proved any hardship contemplated under Section 20 of the Act. Reliance was placed on Bimabi v. V. Subramani, S.A.No.943 of 2005, dated 03.02.2015; Nagarajan v. Nirmala, S.A.(MD) No.206 of 2018, dated 18.07.2024; and Kirpal Kaur v. Ritesh, reported in (2022) 6 SCC 620, for the propositions that a proved agreement cannot be treated as a loan-security document merely on an unsupported assertion, that the burden lies heavily upon the party alleging that the document was never intended to be acted upon, and that specific performance may be granted once execution and readiness and willingness are established. The counsel therefore prayed for dismissal of the appeal and confirmation of the decree.

18. The following points arise for determination in this appeal:

                     (i) Whether the Ex. A1 sale agreement was executed solely as security for the loan allegedly advanced by the plaintiff?

                     (ii) Whether the plaintiff has pleaded and proved his continuous readiness and willingness to perform his part of the obligations under the contract?

                     (iii) Whether Ex. A1 is unenforceable on the ground that defendants 2 and 3 were minors at the time of its execution?

                     (iv) To what relief are the parties entitled?

Point No.1

19. The defendants expressly admit the execution of Ex. A1, the sale agreement, in their written statement. However, their specific defence is that Ex. A1 was not intended to be acted upon as an agreement of sale, but was executed merely as security for a loan of Rs.4,00,000/- taken by the first defendant from the plaintiff.

20. Since Ex. A1 has been admitted, and the original agreement has been produced before the Court, its execution is proved; consequently, the burden shifts to the defendants to establish their plea that Ex. A1 was executed merely as security for a loan transaction.

21. Sections 91 and 92 of the Indian Evidence Act, 1872, embody the best-evidence rule. Once the terms of a transaction have been reduced to writing and the document has been proved, oral evidence cannot ordinarily be admitted to contradict, vary, add to, or subtract from its terms. Ex. A1, on its face, appears to be an agreement for the sale of the suit property. Therefore, oral evidence intended to alter the character of the transaction and to establish that it was only a security for a loan cannot be accepted unless the case falls within any of the provisos to Section 92 of the Evidence Act.

22. In the present case, the defendants have not pleaded fraud, coercion, misrepresentation, mistake, want or failure of consideration, or any other vitiating circumstance attracting the provisos to Section 92. They have also failed to produce any independent documentary evidence substantiating the alleged loan transaction—consequently, their oral testimony, which contradicts the express recitals in Ex. A1, cannot be accepted.

23. When Ex. A1 expressly records an agreement for the sale of the suit property, the defendants cannot alter the nature of the written transaction merely by asserting, through oral evidence, that it was executed as security for a loan. Accordingly, Ex. A1 is an agreement of sale, not a document executed merely as security for a loan. Point No. 1 is accordingly answered in favour of the plaintiff.

Point No.2

24. Although Ex. A1 has been held to be a genuine agreement of sale, the plaintiff must independently plead and prove that he has always been ready and willing to perform the essential terms of the contract required of him. This statutory requirement must be met irrespective of whether the defendants have specifically questioned the plaintiff’s readiness and willingness.

25. Because the transaction and the institution of the suit preceded the amendment to the Specific Relief Act, 1963, the case is governed by the provisions of the Act as they stood before the amendment. Accordingly, the plaintiff must plead and prove his continuous readiness and willingness to perform his part of the contract.

26. In the present case, the plaintiff has specifically averred in the plaint that he was always ready and willing to perform his part of the contract. The defendants have not specifically challenged his financial capacity to pay the balance of the sale consideration and to complete the transaction. More importantly, even before the expiry of the period stipulated under Ex. A1 for completion of the sale, the plaintiff issued a notice dated 06.09.2008, calling upon the defendants to execute the sale deed and expressly stating his readiness and willingness to perform his obligations under the agreement.

27. The pleadings and the plaintiff's conduct, particularly the issuance of the notice before the stipulated period expired, establish that he was consistently ready and willing to perform his part of the contract. Therefore, the plaintiff has satisfied the statutory requirement of readiness and willingness. Point No. 2 is answered in favour of the plaintiff.

Point No.3

28. It is admitted that the suit property is ancestral joint-family property. The first defendant, being the father of defendants 2 and 3 and the Karta of the Hindu joint family, entered into the Ex.A1 agreement of sale on the family's behalf.

29. Under Hindu law, the Karta is competent to alienate joint-family property, including the undivided interests of minor coparceners, when the transaction is supported by legal necessity, for the benefit of the estate, or for the welfare of the family. Prior permission of the Court is not required for such alienation by the Karta. The requirement to obtain prior permission under Section 8 of the Hindu Minority and Guardianship Act, 1956, applies to the transfer of a minor’s separate or individual immovable property by his natural guardian, not to the minor’s undivided interest in joint-family property managed by an adult member of the family.

30. In the present case, defendants 2 and 3 did not possess any separately identifiable individual property in the suit property. They held only undivided interests as coparceners in the ancestral joint-family property, which the first defendant managed as its Karta. Accordingly, prior permission of the Court under Section 8 of the Hindu Minority and Guardianship Act was not required for the entry into Ex. A1.

31. Further, the defendants have neither pleaded nor established that the transaction was contrary to the minors' welfare or unsupported by family necessity or benefit. No material has been placed before the Court to show that the first defendant acted against the interests of the minor defendants in entering into Ex. A1. Consequently, Ex. A1 cannot be held unenforceable merely because defendants 2 and 3 were minors at the relevant time.

32. It is therefore held that Ex. A1 is a valid and enforceable agreement of sale and is not rendered unenforceable by the minority of defendants 2 and 3. Point No. 3 is accordingly answered in favour of the plaintiff.

Result:

33. In view of the findings rendered on Points Nos. 1 to 3, this Court finds no reason to interfere with the judgment and decree passed by the learned IV Additional District Judge, Erode at Bhavani, in O.S. No. 300 of 2008, dated 27.02.2019. The judgment and decree of the Trial Court are accordingly confirmed.

34. Accordingly, the Appeal Suit is dismissed with costs. Consequently, any connected miscellaneous petition is closed.