2026:MHC:1918SA(MD). No.237 of 2024

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 20.04.2026

Delivered on : 05.06.2026

CORAM

THE HONOURABLE MR. JUSTICE P.B.BALAJI

SA(MD). No.237 of 2024

and

CMP(MD)No.4666 of 2024

Pambaiyan, ... Appellant / Appellant / Plaintiff

Vs.

1. V.Sethuraman,

2. Ayyammal, ... Respondents / Respondents / Defendants

PRAYER :- Second Appeal filed under Section 100 of Civil Procedure

Code, to set aside the decree and the judgment dated 23-08-2023 passed

in A.S.No.56 of 2017, on the file of the IV Additional District Judge,

Madurai confirming the decree and the Judgment dated 28-07-2017

passed in O.S.No.1074 of 2012, on the file of the I Additional Sub Court,

Madurai (Camp at Melur), by allowing this second appeal.

For Appellant : Mrs.P.Jessi Jeeva Priya,

For Respondents : Mr.S.M.Arun Kumar, for R1

: No appearance for R2

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SA(MD). No.237 of 2024

JUDGMENT

The plaintiff, in a suit for specific performance is the appellant,

aggrieved by the concurrent findings rendered by the trial Court as well

as the first appellate Court.

2. The second appeal was admitted on 05.12.2024 on the following

substantial questions of law:

“(i) Whether the Courts below are correct in law in

not accepting Exhibit A1, the Power of Attorney, when the

first respondent himself has admitted his signature and its

execution failed to prove that the Power of Attorney has

been obtained by undue influence and created by fraud?

(ii) Whether the Court below is justified in

dismissing the suit especially when the first respondent

failed to rebut the presumption under Section 114(e) of

the Indian Evidence Act as to the genuineness of the

registered documents Exhibits A1 and A2?

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(iii) Whether the Judgements of the Courts below

are justified in declining the decree of specific

performance of a legal and valid registered agreement to

sale executed in favour of the plaintiff contrary to the

provisions of the Specific Relief Act, 1963 and the law

laid down by the Apex Court?"

3. For the sake of convenience, the parties are referred to as per

their rank before the trial Court.

4. I have heard Mrs. P.Jessi Jeeva Priya, learned counsel for the

appellant and Mr.S.M.Arun Kumar, learned counsel for the first

respondent.

5. Brief facts that are necessary for deciding the second appeal are

as hereunder:

The plaintiff entered into a registered agreement of sale with the

second defendant on 13.01.2011 for purchasing the suit property for a

total sale consideration of Rs.2,60,000/-. The plaintiff had advanced a

sum of Rs.75,000/- towards part payment to the second defendant. The

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agreement was to be concluded within 2 ½ years, on receipt of balance

sale consideration of Rs.1,85,000/-. The plaintiff contending that the

plaintiff is always ready and willing to perform his part of the contract

and despite demands, including lawyer's notice dated 19.06.2012, the

defendants have neither come forward to execute the sale deed nor issued

any reply and hence, the plaintiff was constrained to institute the present

suit, particularly in view of the fact that third parties are attempting to

alienate the suit property.

6. The suit was resisted by the first defendant stating that the first

defendant is the owner of the property and the second defendant is the

sister of the first defendant. The plaintiff’s claim is that the first

defendant has denied the plaintiff’s contention that he executed a power

of attorney on 26.08.2004, appointing the second defendant as his

General Power of Attorney. He would further state that the second

defendant is none other than the wife of the plaintiff. It is alleged that, on

imaginary and untenable grounds, the plaintiff and the second defendant

claim to have obtained a General Power of Attorney, and that the same

was registered, though the first defendant had no occasion to appoint his

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sister as his power of attorney agent and the first defendant has not

received any advance as alleged by the plaintiff. Any sale agreement

executed by the second defendant in favour of the plaintiff, will not bind

the first defendant. The first defendant had originally married the

plaintiff’s daughter, however, the marriage was not a happy one.

Subsequently, the first defendant married another woman and begot four

children. It is alleged that, only in order to wreak vengeance, the present

suit has been filed.

7. The second defendant has filed a written statement supporting

the plaintiff’s case; however, she additionally contends that an advance

amount of Rs.75,000/- was received from the plaintiff and handed over to

the first defendant and that the first defendant had promised to execute

the sale deed in favour of the plaintiff; hence, the second defendant did

not hesitate to exercise the power of attorney for executing the sale deed

in favour of the plaintiff, her husband.

8. Based on the above pleadings, the parties went to trial. The

plaintiff examined himself as P.W.1 and one Kallanai examined as P.W.2

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and five documents were marked as Ex.A1 to Ex.A5. On the side of the

defendants, the first defendant examined himself as D.W.1 and marked

original power of attorney deed, dated 04.02.2011 as Ex.B1.

9. Upon consideration of the evidence adduced by the parties, the

trial Court came to the conclusion that the plaintiff is not entitled to the

discretionary relief of specific performance and also the relief of

permanent injunction, as he has not substantiated his claim of having

been put in possession of the suit property. The plaintiff preferred in

A.S. No.56 of 2017, before the IV Additional District Court, Madurai

and the first appellate Court by judgment and decree dated 23.08.2023

confirmed the findings of the trial Court and dismissed the appeal. As

against the concurrent findings of the Courts below, the present second

appeal has been filed.

10. Mrs.P.Jessi Jeeva Priya, learned counsel for the appellant/

plaintiff would state that the first defendant had categorically admitted to

the factum of execution and registration of the power agent and in such

circumstances, the second defendant was well within her rights to enter

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into the agreement of sale in favour of any person, including her

husband, the plaintiff and the same cannot be found fault with. The

learned counsel would also state that even though the agreement of sale

was entered into on 13.01.2011 and a period of 2½ years was fixed for

completion of the sale deed, even on 19.01.2012, the plaintiff issued

Ex.A2 legal notice calling upon the defendants to perform their part of

the contract. Despite receipt of the said notice, there was no reply from

the first defendant. After waiting for some time, the suit came to be filed

in November 2012 itself. Mrs.P.Jessi Jeeva Priya, learned counsel would

contend that both the Courts below have erred in deciding the matter on

irrelevant considerations relating to the relationship between the parties

and have failed to adjudicate the vital issue of readiness and willingness,

which is the sole determinative issue in a suit for specific performance.

11. Inviting my attention to the written statement, Mrs. P. Jessi

Jeeva Priya, learned counsel, would submit that the first defendant has

categorically made admissions in his written statement. She would

further contend that, though the power of attorney under Ex.B1 was

subsequently cancelled, the first defendant has not alleged any foul play

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or undue influence, which are merely set up in the plaint with a view to

non-suit the plaintiff to the relief of specific performance. She would

also state that the revocation of the power of attorney was not even

communicated to the power agent and, therefore, it did not take effect. It

is, therefore, her argument that the Courts below failed to appreciate that

the plaintiff was always ready and willing to perform his part of the

contract and that the first defendant had, in fact, made admissions

relating to the transaction itself, including receipt of an advance amount

of Rs.75,000/-. “The learned counsel further submits that the burden was

therefore heavily cast upon the first defendant, particularly to establish

that the power of attorney was obtained by undue influence or

misrepresentation.

12. In support of her submissions, the learned counsel for the

appellant relied on the following decisions:

(i) Judgment of the Division Bench of this Court in Gopamma v.

Murugesan reported in 2026-1-MWN(Civil)-530;

(ii) Judgement of the Hon'ble Supreme Court in Arunima Baruah

v. Union of India reported in 2007-6-SCC-120; and

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(iii) Judgment of the Hon'ble Supreme Court in Bishundeo Narain

v. seogeni Rai reported in 1951-SCC-447.

13. Per contra, Mr.S.M.Arun Kumar, learned counsel for the first

respondent / first defendant would state that the plaintiff did not even

come to Court with clean hands and has suppressed that the plaintiff is

the husband of the second defendant, who is the power of attorney of the

first defendant. He would therefore submit that the plaintiff and the

second defendant have colluded in relation to the transaction concerning

the plaintiff’s valuable property. He would further state that the first

defendant had married the plaintiff’s daughter and that disputes arose

within the family, which ultimately resulted in separation and he would

therefore contend that it was only because of the said disputes that the

second defendant, who happens to be the sister of the first defendant,

with the active assistance and in collusion with the plaintiff, brought

about the execution of the power of attorney. He would therefore state

that in fact,there was no necessity for executing a power of attorney in

favour of his sister, the second defendant. He would further state that the

plaintiff has also not been ready and willing to perform his part of the

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contract and rightly the Courts below have denied the relief of specific

performance.

14. In support of his submissions, Mr.S.M.Arun Kumar, learned

counsel relies on my decision in N.Basuvaraj v. Gullamma, reported in

2024-1-LW-620 and the decision of the Hon'ble Division Bench of this

Court in P.Varadharajan v. Senthilkumar in A.S.No.330 of 2011, dated

12.01.2023.

15. I have carefully considered the submissions advanced by the

learned counsel on either side. I have also gone through the pleadings,

deposition of the witnesses, documentary evidence as well as the

judgments of the trial Court and the first appellate Court. I have also kept

the principles laid down in the various judgments referred herein above

in mind, while deciding the substantial questions of law that have been

framed at the time of admission.

16. The plaintiff sought for enforcement of an agreement of sale

entered into with him, by his wife as power agent of his brother-in-law.

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Though the brother-in-law as first defendant denied the validity of the

said power agent, contending that it was obtained by undue influence and

that it is not binding on him, both the Courts have rightly found that the

first defendant has not been able to establish the plea of undue influence,

and therefore the first defendant is bound by the consequences of the

execution of the power of attorney. It is also relevant to note that, during

the subsistence of the power of attorney, the power agent entered into an

agreement of sale with her husband for the sale of the suit property for a

total sale consideration of Rs.2,60,000/- and a sum of Rs.75,000/- was

received as advance, and a period of 2½ years was fixed under the said

agreement for completion of the transaction.

17. The plaintiff, admittedly within the said period of 2 ½ years,

has issued a lawyer's notice on 19.06.2012 under Ex.A3, calling upon

both the defendants, viz., brother-in-law (principal) as well as the power

agent to execute the sale deed, on receipt of the balance sale

consideration. The said lawyer's notice was served on the first defendant

personally on 20.06.2012. However, the first defendant did not come

forward to even reply to the said notice. It is therefore the contention of

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the learned counsel for the appellant, Mrs.P.Jessi Jeeva Priya, that when

the Courts below have disbelieved the theory of undue influence set up

by the first defendant, the Courts ought to have granted the relief of

specific performance. She would further state that the Courts have not

dealt with the aspect of readiness and willingness, which is the core issue

to be considered in a suit for specific performance.

18. Merely because the agreement is held to be binding on the first

defendant, it does not automatically follow that a decree for specific

performance of the agreement of sale is to be granted. No doubt, the

Courts have not dealt with the issue of readiness and willingness at all.

Their focus has been diverted to the fact that the plaintiff and the second

defendant are husband and wife, and that neither the agreement nor the

pre-suit notice discloses this relationship. It is further pointed out that the

plaint also does not disclose the fact that the power agent of the first

defendant is none other than the wife of the plaintiff. The Courts, under

such pretext, have disbelieved the case of the plaintiff regarding the

transactions between the plaintiff and the second defendant.

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19. Once the Courts had held that the power of attorney was

binding on the first defendant, they ought to have accepted the agreement

of sale. The Courts have, in effect, rejected the contention of the first

defendant, but at the same time erred in disbelieving the agreement of

sale on the ground of collusion.

20. Be that as it may, the plaintiff has suffered concurrent findings

before the Courts below, which have taken serious note of the fact that

the advance sale consideration of Rs.75,000/- was paid to the wife of the

plaintiff himself and the further plea that the transaction was entered into

with the consent of the first defendant, the owner of the property, has

also not been established . The Courts below also found that the plaintiff

was not put in possession of the property, pursuant to the agreement of

sale and the power agent also did not deal with the possession of the suit

property. Therefore, the power agent could not have handed over

possession of the suit property to the agreement holder. The agreement

also does not deal with the factum of possession. This aspect has not

been considered by both the Courts while arriving at the conclusion that

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the plaintiff was not in possession and is, therefore, not entitled to the

relief of permanent injunction

21. Even though the Courts below had not gone into the issue of

readiness and willingness, I have also considered whether the matter

should be remanded for the purpose of rendering a finding on readiness

and willingness. However, from the available evidence on record, I find

that, except for the plea in the plaint that the plaintiff was ready and

willing to perform his part of the contract, viz., to pay the balance sale

consideration and complete the transaction, there is nothing to establish

readiness and willingness. There is not a single document exhibited on

the side of the plaintiff to show that he was possessed of sufficient funds

at all relevant points of time to meet the balance sale consideration.

Under these circumstances, there is no scope even for remanding the

matter for the purpose of recording a finding on readiness and

willingness, in view of the total absence of evidence in that regard. The

Courts have already non-suited the plaintiff on the ground of lack of

proof of the essential requirements for equitable relief. Even if the

plaintiff’s claim is to be tested on the ground of readiness and

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willingness, no useful purpose would be served by such examination, in

view of the facts already discussed. In the light of the above, I do not find

any justifiable or substantial grounds arising in the present second appeal

to interfere with the concurrent findings rendered by the Courts below.

22. Coming to the decisions that have been relied on, the Hon'ble

Supreme Court in Bishundeo Narain's case, held that undue influence

and coercion are separate and separable categories in law and there must

be separately pleaded and also proved at trial. The Hon'ble Supreme

Court Arunima Baruah's case, dealt with what is suppression of

material fact and held that for the Court to refuse to exercise its

discretionary jurisdiction, suppression must be of material fact. What

would be a material fact, suppression whereof would disentitle the

appellant to obtain a discretionary relief, would depend upon the facts

and circumstances of each case. Here, the plaintiff has suppressed the

relationship between the parties; however, I do not find such non-

disclosure amounting to suppression of a material fact. It is not the case

of the first defendant that the plaintiff obtained an order behind the back

of the first defendant, suppressing the fact that the parties are closely

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related. In such circumstances, as held by the Hon'ble Supreme Court

Arunima Baruah's case, I am unable to countenance the argument of the

learned counsel that non-mentioning of the fact that the power agent is

the wife of the plaintiff amounts to material suppression, on the basis of

which alone the discretionary relief of specific performance should be

denied.

23. In Gopamma's case, the Hon'ble Division Bench held that

when there is a revocation of agency, reasonable notice of such

revocation must be given to the agent and in the absence of the same, the

revocation itself would be fatal. In the present case also, no evidence was

brought on record by the first defendant that he has cancelled the power

agent after informing the power agent. However, I do not find it

necessary to dwell further on this issue, for the simple reason that I have

already held that the agreement was entered into during the subsistence

of the power of attorney, and therefore the first defendant is bound by the

acts of the power agent in executing the sale agreement even in favour of

her husband.

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24. The Hon'ble Division Bench of this Court in P.Varadharajan's

case, this Court held that when the suit agreement is merely a product of

collusion between the plaintiff and the fourth defendant, it cannot be

specifically enforced

25. In N.Basuvaraj's case, I held that in a suit for specific

performance, the relief sought is only an equitable relief but, also a

discretionary, the plaintiff has to firstly establish the factum of an

enforceable agreement of sale between the plaintiff and the defendant

and additionally is also bound to satisfy the Court that the plaintiff was

always ready and willing to perform his or her part of the said agreement

of sale at all relevant points of time and only if these twin factors are

satisfied, the plaintiff would become entitled to the relief of specific

performance. Applying the recent judgment laid down in Basuvaraj's

case to the facts of the present case, even if the plaintiff may have

succeeded in establishing the conditions for enforcement of the sale

agreement, inso far as readiness and willingness are concerned, the

plaintiff has miserably failed to bring on record any cogent or

satisfactory evidence to show that he was possessed of sufficient funds.

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The plaintiff has also not taken any steps to deposit the balance sale

consideration either at the time of filing of the suit or during the

pendency of the suit.

26. In the light of the above, I do not see any justifiable grounds to

interfere with the findings rendered by the Courts below. The substantial

questions of law are answered against the appellant.

27. In fine, the second appeal is dismissed. There shall be no order

as to costs. Consequently, connected Miscellaneous Petition is closed.

.05.06.2026

NCS : Yes/No

Index : Yes / No

Internet : Yes / No

LS

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TO

1. The IV Additional District Judge,

Madurai.

2. The I Additional Sub Court,

Madurai (Camp at Melur).

3.The Section Officer,

VR Section,

Madurai Bench of Madras High Court,

Madurai.

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P.B.BALAJI,J.

LS

Pre-delivery judgment made in

SA(MD) No.237 of 2024

05.06.2026

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