Madras High Court
P.Arumugam Achari (Died) vs P.Rajathi
A.S.No.399 & 1386 of 1995 and
CMSA(MD)No.25/2007
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 18.10.2022
Delivered on : 13.12.2022
CORAM
THE HONOURABLE MR.JUSTICE K.MURALI SHANKAR
A.S.Nos.399 and 1386 of 1995
and
C.M.S.A(MD)No.25 of 2007
A.S.No.399 of 1995:
1.P.Arumugam Achari (died)
2.Muthulakshmi
3.Paramasivan
4.Perathu Selvi : Appellants / Defendants
(Appellants 1 to 3 are brought on record as LRs of the deceased sole appellant,
vide order dated 28.07.2022 made in C.M.P.(MD)No.7794 of 2019 in A.S.No.399
of 1995)
Vs.
P.Rajathi : Respondent/Plaintiff
PRAYER:- Appeal Suit has been filed under Section 96 of C.P.C., against
the judgment and decree, dated 16.07.1993 made in O.S.No.23 of 1991 on
the file of the Subordinate Court, Tirunelveli.
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A.S.No.399 & 1386 of 1995 and
CMSA(MD)No.25/2007
A.S.No.1386 of 1995:
Rajathi Ammal : Appellant/III party
Vs.
1.Meenakshi Ammal
2.Vadivammal : Respondents/Petitioners/Plaintiffs
3.P.Arumugam (died)
4.A.Muthulakshmi
5.A.Paramasivam @ Kannan
6.Manakkammal @ Selvi : Respondent/Defendants/Respondent
(Respondents 4 to 6 are brought on record as LRs of deceased/3rd respondent
vide Court order, dated 21.08.2019 made in M.P.(MD)No.1 of 2012 in
AS.No.1386/1995)
PRAYER:- Appeal Suit has been filed under Section 96 of C.P.C., to set
aside the final decree passed in I.A.No.188 of 1991 in O.S.No.1 of 1989 on
the file of the Principal Subordinate Judge, Tirunelveli, dated 30.11.1994.
C.M.S.A(MD)No.25 of 2007 :
P.Rajathi : Appellant /Appellant/Petitioner/
3rd Party/3rd Party
Vs.
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A.S.No.399 & 1386 of 1995 and
CMSA(MD)No.25/2007
1.V.Meenakshiammal
2.Vadivuammal : Respondents1 & 2/Respondents 1 & 2/
Respondents 1 & 2/Petitioners/Plaintiffs
3.Arumugam :3rd Respondent/3rd Respondent/
3rd Respondent/Respondent/Defendant
PRAYER:- Civil Miscellaneous Second Appeal filed under Order 21 Rule
56(4) r/w Section 100 of C.P.C, against the fair and decretal order, dated
24.10.2007 in C.M.A.No.12 of 2007 on the file of the I Additional District
Court, Tirunelveli, confirming the fair and decreetal order, dated
19.01.2007 passed in E.A.No.631 of 2006 in E.P.No.103 of 2006 in
O.S.No.1 of 1989 on the file of the Principal Subordinate Court,
Tirunelveli.
(in A.S.No.399 of 1995)
For Appellants : Mr.V.Meenakshi Sundaram
For Respondent : Mr.S.Kumar.
(in A.S.No.1386 of 1995)
For Appellant : Mr.S.Kumar.
For Respondents : Mr.G.Prabhu Rajadurai, for R1 & R2
: Mr.V.Meenakshi Sundaram, for R4 to R6
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A.S.No.399 & 1386 of 1995 and
CMSA(MD)No.25/2007
(in CMSA(MD).No.25 of 2007)
For Appellant : Mr.S.Kumar.
For Respondents : Mr.G.Prabhu Rajadurai, for R1 & R2
JUDGMENT
The Appeal suit in A.S.No.399 of 1995, is directed against the judgment and decree passed in O.S.No.23 of 1991, dated 16.07.1993 on the file of the Principal Subordinate Court, Tirunelveli.
2. The Appeal suit in A.S.No.1386 of 1995, is directed against the order passed in I.A.No.188 of 1991 in O.S.No.1 of 1989, dated 30.11.1994, on the file of the Principal Subordinate Court, Tirunelveli, granting final decree in pursuance of the preliminary decree passed in O.S.No.1 of 1989.
3. The Civil Miscellaneous Second Appeal in C.M.S.A(MD)No.25 of 2007, is directed against the order passed in C.M.A.No.12 of 2007, dated 24.10.2007 on the file of the I Additional District Court, Tirunelveli, 4/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 confirming the order passed in E.A.No.631 of 2006 in E.P.No.103 of 2006 in O.S.No.1 of 1989, dated 19.01.2007.
4. In A.S.No.399 of 1995, the gist of the plaint :
(a) The plaintiff has entered into a sale agreement with the defendant on 20.05.1988 in respect of the property measuring 6.5 cents with two residential buildings in Door No.39 C and 39 D; TS.No.1439, Sowkath Ali Street, Tirunelveli Town, wherein they have fixed the sale price at Rs.55,000/- and time for performance of the agreement as three years, but, with extension clause. The plaintiff has paid Rs.12,000/- on 20.05.1988;
and Rs.8,000/- before the Sub-Registrar Office at the time of registering the sale agreement on 20.05.1988 itself.
(b) Subsequently, at the request of the defendant, the plaintiff has paid Rs.8,000/- on 15.03.1989; Rs.4,000/- on 14.10.1989 ; Rs.3,000/- on 04.02.1990; Rs.5,000/- on 05.04.1990 and Rs.10,000/- on 17.10.1990. After payments, the plaintiff has received the receipts therefor. 5/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007
(c) The plaintiff has been ready and willing to complete the sale transaction from the date of agreement. Though the plaintiff has approached the defendant through her husband to execute the sale deed, after receiving the balance sale price, the defendant has been postponing the same on some pretext or the other.
(d) The plaintiff came to know that the defendant was attempting to sell the suit property for higher price to some other. Hence, the plaintiff was constrained to file the above suit, claiming the relief of specific performance of the agreement.
5. The defence of the defendant :
(a) The plaintiff's husband Palanichamy; Kombaiya Devar and the defendant were residing in the same street for a long time. The plaintiff's husband and the said Kombiya Devar were helping the defendant, whenever there arose disputes between the defendant and his sisters. The defendant in order to clear his debts, has requested the plaintiff's husband to advance a loan of Rs.8,000/- and he agreed to advance the loan amount, 6/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 but imposed a condition that the defendant has to execute 'Othi' deed in respect his two house properties and to permit him to receive the rent from the buildings, except the one in occupation of the defendant.
(b) Since the defendant was in confused condition, he agreed for the proposal. Accordingly, the plaintiff's husband and Kombaiya Devar had taken the defendant to the Registrar Office for the execution of Othi deed;
that they have paid Rs.8,000/- before the Sub-Registrar and they have obtained signatures in several papers. The defendant has subscribed his signatures believing that he was executing Othi deed. But, subsequently, came to know that the plaintiff's husband had taken sale agreement fraudulently and as such, the document obtained by fraud, is invalid and is not binding on the defendant.
(c) The defendant has not received any other amount subsequently and the receipts alleged to have been given by him are forged documents. The plaintiff's husband has taken signatures in several papers allegedly for getting interest and for extension of Othi period. The plaintiff has not sent 7/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 any pre-suit notice and even before the expiry of the performance period shown in the alleged sale agreement, filed the suit pre-maturely.
(d) The defendant's sisters have filed a suit for partition and the same was decreed in January 1991 against the defendant. After coming to know about the same, the above suit came to be filed fraudulently on 11.02.1991. The defendant has never executed any sale agreement. The value of the suit property is Rs.3,00,000/- even in 1988 and hence, the defendant could not have consented for selling the property at Rs.55,000/-. The plaintiff has no cause of action and the alleged one is false. Hence, the suit is liable to be dismissed.
6. On the basis of the above pleadings, the trial Court has framed the following issues :
(i) Whether the suit sale agreement was obtained fraudulently as stated in the written statement ?
(ii) Whether the suit sale agreement is invalid for the reasons shown in the written statement ?8/40
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(iii) Whether the plaintiff is entitled to get the relief of specific performance ?
(iv) Whether the suit is premature? If so, unacceptable ?
(v) What other relief, the plaintiff is entitled to ?
7. During trial, the plaintiff has examined her husband Thiru.Palanisamy as P.W.1 and three other witnesses Thiru.Subramanian; Thiru.Kombaiya and Thiru.S.Vailu Muthu as P.W.2 to P.W.4 respectively and exhibited 8 documents as Ex.A.1 to Ex.A.8. The defendant has examined himself as D.W.1 and exhibited two documents as Ex.B.1 and Ex.B.2.
8. The learned trial Judge, upon considering the evidence, both oral and documentary and on hearing the arguments of both the sides, has passed the impugned judgment, dated 16.07.1993, decreeing the suit as prayed for with costs. Aggrieved by the said judgment and decree, the defendant has come forward with the present appeal. 9/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007
9. Pending appeal, the appellant/defendant had died and hence, his legal representatives have been impleaded as appellants 2 to 4.
10. The points that arise for determination are :
(1) Whether the trial Court erred in rendering a finding that the suit sale agreement has been proved, despite showing that the defendant has no title to the suit property at the time of execution of the sale agreement; that since the suit property was shown to be worth more than Rs.3,00,000/-, the defendant could not have consented for selling the property at Rs.55,000/-
and that the defendant was duped in the alleged transaction by making him to believe the alleged document as a mortgage deed ?
(2) Whether the judgment and decree, dated 16.07.1993 made in O.S.No.23 of 1991 on the file of the Subordinate Court, Tirunelveli, is liable to be set aside ?
(3) To what other relief, the parties are entitled ?
11. The plaintiff has laid the above suit claiming the relief of specific performance of the agreement, dated 20.05.1988 alleged to have been executed by the defendant. It is the specific case of the plaintiff that the 10/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 plaintiff and the defendant have entered into a registered sale agreement on 20.05.1988, in respect of the suit property owned by the defendant, fixing the sale price at Rs.55,000/- and time for performance as three years; that the defendant has received Rs.20,000/- on the date of sale agreement and subsequently, Rs.30,000/- on various dates; totaling Rs.50,000/-; that though the plaintiff has approached the defendant through her husband, directing the defendant to execute the sale deed by receiving the balance sale price, he has been postponing the same on some pretext or the other and that since the defendant had been attempting to alienate the suit property for higher price to others, he was constrained to file the above suit.
12. The defendant has taken a specific stand that he approached the plaintiff's husband for a loan of Rs.8,000/- and the plaintiff's husband had agreed to advance a loan, on a condition to execute Othi deed in respect of the defendant's two house properties and to permit him to receive the rents from the buildings in the suit property, except the one in occupation of the defendant; that the defendant was taken to Sub Registrar Office for 11/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 executing the Othi deed and obtained his signatures in various papers; that the defendant subsequently, came to know that the sale agreement was taken fraudulently instead of Othi deed, that the defendant has never executed any sale agreement in respect of the suit property and that since the suit property was worth more than Rs.3,00,000/-, he could not have accepted for selling the suit properties at Rs.55,000/-.
13. The plaintiff in order to prove her case, has examined her husband as P.W.1; Document writer as P.W.2 and the witness of the sale agreement as P.W.3. The plaintiff's husband in his evidence would reiterate the case of the plaintiff shown in the plaint.
14. P.W.2 and P.W.3 in their evidence would reiterate the version of P.W.1 regarding the execution of Ex.A.1 sale agreement. It is pertinent to note that the defendant has specifically admitted all the signatures found in Ex.A1/sale agreement and his main contention is that he has subscribed his signatures believing that he was executing the Othi deed. 12/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007
15. In the written statement, the defendant has stated that he does not know how to read and write properly.
“ gpujpthjpf;F vOjg;gbf;f mt;tsthf njhpahJ. ....... jhNd thrpg;gjw;Fk;; kdepiy rhpapy;iy.” The defendant in his chief examination would say that he does not know how to read and write.
“ vdf;F vOjg;gbf;f njhpahJ”.
16. But the plaintiff has summoned and examined P.W.4 writer attached to Jawahar Government High School, Tirunelveli Town and he produced the copies of School Record Extract and Transfer Certificate of the defendant as Ex.P.7 and Ex.P.8 respectively, whereunder, it is clearly evident that the defendant had studied up to 9th standard in the said school.
17. It is pertinent to note that though the defendant had studied up to 9th standard, he has taken a stand in the written statement that he does not know to read and write properly and in evidence, he would say that he does 13/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 not know how to read and write. It is evident from the records that P.W.1 to P.W.3 have given cogent and clear evidence regarding the execution and registration of sale agreement. Though they were subjected to cross examination, their evidence regarding the execution of Ex.A.1 sale agreement remained unshaken.
18. Regarding the receipts under Ex.A2 to Ex.A.5, P.W.1 and P.W.2 have deposed about the payments made by the plaintiff towards balance sale price and the execution of the documents therefor. As already pointed out, the defendant has taken a stand that subsequent to the execution of Othi deed, the plaintiff's husband had taken signatures in several papers for allegedly giving credit to the interest and for extension of Othi period.
19. As rightly contended by the learned counsel for the plaintiff, the defendant has not specifically disputed the signatures found in Ex.A2 to Ex.A5. But, during cross examination of D.W.1, it was suggested that the color of ink found in the contents of Ex.A.2 to Ex.A5 is different from that of the ink used for subscribing signatures and that signatures were taken 14/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 leaving gap from the contents of the document and that D.W.1 would admit the same. But, a cursory perusal of Ex.A.2 to Ex.A.5 would reveal that in Ex.A.2, the contents and the signatures are in the same ink.
20. No doubt, in Ex.A.3 to Ex.A.5 the contents were written in one ink and the defendant witness had put their signatures in the different ink. Moreover, in all the four documents, there was no space or gap between the signature portion and the contents of the document.
21. Generally, a person, who is challenging the validity of a document, is bound to prove the contrary. When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, at the same time, when a person is in a fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person, in the dominating position and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words that the 15/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 transaction is genuine and bona fide.
22. In the case on hand, no doubt, the defendant has taken a stand that the plaintiff's husband, witness Kombaiya Devar and himself were living in the same street for a long time; that the defendant was having so much confidence with the plaintiff's family and that he had subscribed his signatures in the Registrar Office believing them fully and the relevant portions are extracted hereunder :
“ thjpapd; fzth; mnj bjUtpy; gpujpthjpf;F tpguk; bjhpe;j ehs;
Kjyha; FoapUe;J tUfpwhh;.
... ,e;j epiyapy; thjpapd; fztUf;F gpujpthjpapd; FLk;g epytuq;fs;
vy;yhk; bjhpa[k;. gpujpthjpf;Fk; mth; rnfhjhpfSf;Fk; jfuhW Vw;gLk;
rkaq;fspy; thjpapd;; fztUk;> kh.bfhk;igahjnjtUk;> gpujpthjpf;F cjtpahf ,Ue;J te;jhh;fs;. mjdhy; gpujpthjpf;F> thjpapd; FLk;gj;jhhpd; kPJ mjpf ek;gpf;ifa[k;> gw;WjYk; ,Ue;J te;jJ.
... rg;-hp$p];l;uhh; mth;fSk; U.8>000/- thq;fpf; bfhz;Oh;fsh vd;W gpujpthjpaplk; nfl;L mth; xg;g[f;bfhs;snt gy jhs;fspy; ifbaGj;Jk; nuifa[k;
thq;fp gj;jpuk; xd;W hp$p];l;luhh; bra;jhh;fs;. gpujpthjpf;F vGjg;gof;f 16/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 mt;tsthf bjhpahJ. mth; xj;jpg;gj;jpuk; jhd; vGJfpwhh;fs; vd;W KGikahf ek;gpajhy; gj;jpuj;ij thrpj;Jf; fhl;;lr; brhy;yt[k; ,y;iy. jhnd thrpg;gjw;Fk;
kdepiy rhpapy;iy. ,e;j epiyapy; gpujpthjp rg;-hp$p]l;luhh; Mgprpy;
xj;jpg;gj;jpuk; jhd; vGjp hp$p]l;lh; bra;tjhf ek;gp> mJ nkhroahf vGjg;gl;l fpiua xg;ge;jg; gj;jpuk; vd;W bjhpahky; ifbaGj;J bra;Jtpl;lhh;.”
23. Section 111 of Indian Evidence Act contemplates that 'where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care. It is pertinent to mention that before a presumption of undue influence against a person in position of active confidence is drawn, fiduciary relationship must be established.
24. In the case on hand, as already pointed out, though the plaintiff has raised some averments, that too, not definitely, has not adduced any 17/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 evidence and thereby failed to prove the existence of fiduciary relationship or the position of active confidence. Consequently, it has to be held that since the defendant has taken a defence based on fraud, it is for him to plead and prove. The defendant, except examining himself, has not chosen to adduce any evidence. Though he has alleged that the said sale agreement was obtained fraudulently, making him to believe that this was a Othi document, he has not elaborated anything further. As rightly contended by the learned counsel for the plaintiff, the defendant has miserably failed to prove the factum of fraud alleged by him.
25. Regarding the value of the suit property, according to the defendant, the suit property was worth more than Rs.3,00,000/- in 1988 and as such, he could not have consented for selling the property at Rs. 55,000/-. As rightly observed by the learned trial Judge, though the defendant has taken such a plea, he has not produced any iota of evidence to prove the value of the property.
26. Now turning to the defence taken under Section 17 of Specific 18/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 Relief Act, it is the specific case of the defendant that the suit property came to be owned by himself and his two sisters; that his sisters have already filed a suit for partition in O.S.No.1 of 1989 and obtained preliminary decree and that the plaintiff after coming to know about the same, has laid the present suit fraudulently.
27. It is not in dispute that the defendant's sisters have filed a suit for partition in O.S.No.1 of 1989 against the defendant, on the file of the Principle Subordinate Court, Tirunelveli and after trial, preliminary decree was passed on 30.11.1994, declaring that the plaintiffs therein (defendant's sisters) were entitled to get 2/3 shares in the suit property.
28. The learned counsel for the appellants/defendants would contend that since the defendant is not the absolute owner of the suit property and that the other owners of the property are not parties to the sale agreement, the agreement itself is invalid and as such, the plaintiff is not entitled to get the decree of specific performance.
29. The learned counsel for the defendants has relied on the 19/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 judgment of the Hon'ble Supreme Court in Pemmada Prabhakar and others Vs. Youngmen's Vysya Association and others reported in 2015 (3) CTC 229.
“29. It is an undisputed fact that the suit schedule property is self acquired property by late Pemmada Venkateswara Rao as he had purchased the said property vide Sale-Deed Document No.5174 of 1970 dated 24.11.1970 from his vendors. It is also an undisputed fact that the said property is intestate property. He is survived by his wife, 3 sons and 3 daughters. The said property devolved upon them in view of Section 8 of Chapter 2 of the Hindu Succession Act as the defendants are class I legal heirs in the suit schedule property. Undisputedly, the Agreement of Sale- Ex.-A1 is executed only by defendant Nos. 1 and 2. The 3rd son, mother and 3 sisters who have got equal shares in the property have not executed the Agreement of Sale. In view of the matter, the Agreement of Sale executed by defendant Nos. 1 and 2 who have no absolute right to property in question cannot confer any right whatsoever upon the plaintiffs for grant of decree of specific performance of Agreement of Sale in their favour. The said agreement is not enforceable in law in view of Section 17 of the Specific Relief Act in view of right accrued in favour of defendant Nos. 3 to 6 under Section 8 of the Hindu Succession Act. The provisions of 20/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 Section 17 of the Specific Relief Act in categorical term expressly state that a Contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor who does not have absolute title and right upon the party. It is worthwhile to extract Section 17 of the Specific Relief Act, 1963 here :-
“17.-Contract to sell or let property by one who has no title, not specifically enforceable.- A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor;
(a) who, knowing not to have any title to the property, has contracted to sell or let the property
(b) who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.” In view of the aforesaid provisions of the Specific Relief Act, the Agreement of Sale entered between the plaintiffs and some of the co-sharers who do not have the absolute title to the suit schedule property is not enforceable in law. This aspect of the matter has not been properly appreciated and considered by both the First Appellate Court and the Second Appellate Court.
Therefore, the impugned judgment is vitiated in law. 21/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007
30. Even assuming for the sake of argument that the agreement is valid, the names of three sons are mentioned in Agreement of Sale, out of whom the agreement is executed by defendant Nos. 1 and 2 and they assured that they would get the signatures of the 3rd brother namely, Srinivasa Rao and also the remaining 3 sisters. At the time of execution of this agreement signatures were not obtained. Therefore, the agreement is not executed by all the co-sharers of the property which fact is evident from the recitals of the document itself. Hence, the plaintiffs are not entitled for specific performance decree. This vital factual and legal aspect has been ignored by both the First Appellate Court and the Second Appellate Court. Therefore, the impugned judgment is vitiated both on facts and law. Accordingly, the point No. 1 is answered in favour of the defendants.
30. To counter the said argument, the learned counsel for the respondent/plaintiff has relied on the judgment of the Hon'ble Supreme Court in Kammana Sambamurthy (deceased by LRs) Vs.Kalipatnapu Atchutamma (deceased by LRs) and others reported in AIR 2011 Supreme Court 103, and the relevant passages are extracted hereunder :
“21. Section 12 prohibits specific performance of a part of 22/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 a contract except in the circumstances under sub-sections (2), (3) and (4). The circumstances mentioned in these sub-sections are exhaustive. Is Section 12 attracted in the facts and circumstances of the present case? We do not think so. The present case is not a case of the performance of a part of the contract but the whole of the contract insofar as the vendor is concerned since he had agreed to sell the property in its entirety but it later turned out that vendor had only half share in the property and his wife held the remaining half. The agreement is binding on the vendor as it is without being fractured. As regards him, there is neither segregation or separation of contract nor creation of a new contract. In Kartar Singh v.
Harjinder Singh & Ors., this Court was concerned with a case where vendor--brother and a sister had each half share in the suit properties. The agreement for the sale was executed by the brother concerning the suit properties in which the sister had half share. The sister was not executant to the agreement; rather she refused to accept the agreement. The question for consideration before this Court was whether agreement could be enforced against the vendor--brother to the extent of his half share. This Court considered Section 12 and held as under :
"5. We are, therefore, of the view that this is not a case which is covered by Section 12 of the Act. It is clear from Section 12 that it relates to the specific performance of a part of a contract. The present is not a case of the performance of a part of the 23/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 contract but of the whole of the contract so far as the contracting party, namely, the respondent is concerned. Under the agreement, he had contracted to sell whole of his property. The two contracts, viz. for the sale of his share and of his sister's share were separate and were severable from each other although they were incorporated in one agreement. In fact, there was no contract between the appellant and the respondent's sister and the only valid contract was with respondent in respect of his share in the property.
6. As regards the difficulty pointed out by the High Court, namely, that the decree of specific performance cannot be granted since the property will have to be partitioned, we are of the view that this is not a legal difficulty. Whenever a share in the property is sold the vendee has a right to apply for the partition of the property and get the share demarcated. We also do not see any difficulty in granting specific performance merely because the properties are scattered at different places. There is no law that the properties to be sold must be situated at one place. As regards the apportionment of consideration, since admittedly the appellant and respondent's sister each have half share in the properties, the consideration can easily be reduced by 50 per cent which is what the first appellate court has rightly done."
22. Kartar Singh1 has been followed by this Court in Manzoor Ahmed Magray v. Ghulam Hassan Aram & Or 2. In Manzoor Ahmed Magray , this Court considered the matter in the context of Section 15 of J & K Specific Relief Act, 1977 which is 2 (1999) 7 SCC 703 pari materia to Section 12 of 24/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 Specific Relief Act, 1963. This Court said :
".......Hence, there is no bar for passing the decree for specific relief with regard to 1/3rd or 2/3rds share owned by the contracting party for which he can execute the sale deed. For the share of Ghulam Rasool (brother of Defendant 1) admittedly, no decree is passed by the High Court. Dealing with the similar contention where agreement was for sale of property belonging to a brother and sister each having a half share, the Court in Kartar Singh v. Harjinder Singh held that when the absentee vendor, for some reason or the other refused to accept the agreement, there is no reason why the agreement should not be enforced against the vendor who had signed and his property is identifiable by specific share. The Court further held that such case is not covered by Section 12 of the Specific Relief Act, 1963 which relates to specific performance of a part of a contract. Such type of case would be the case of specific performance of the whole of the contract so far as the contracting party is concerned. Further, whenever a share in the property is sold the vendee has the right to apply for the partition of the property and get the share demarcated. Hence there would not be any difficulty in granting specific performance of the contract to the extent to which it is binding between the parties."
23. In the case of A. Abdul Rashid Khan (Dead) & Ors. v. 25/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 P.A.K.A. Shahul Hamid & Ors., this Court held that even where any property is held jointly and once any party to the contract has agreed to sell such joint property by agreement, then, even if the other co-sharer has not joined, at least to the extent of his share, the party to the contract is bound to execute the sale deed. In that 3 (2000) 10 SCC 636 case, the suit property originally belonged to one Aziz Khan. On his death, his heirs under the Muslim law--nine sons and two daughters inherited that property. The sons agreed to sell that property to the first respondent therein. However, some dispute arose between the parties and that necessitated the first respondent therein to file the suit for specific performance in which the executants of the agreement as well as the two daughters of Aziz Khan were impleaded as defendants. It was admitted case that the daughters of Aziz Khan had not joined in the agreement of sale. The trial court dismissed the suit by holding that the agreement was indivisible and could only be enforced if the daughters of Aziz Khan agreed. The first respondent therein preferred an appeal before the High Court against the judgment and decree of the trial court. The High Court held that he had not pleaded and proved that the daughters of Aziz Khan had agreed to sell the suit property and hence, it cannot be held that the said agreement was by all the heirs of Aziz Khan. The two daughters of Aziz Khan were held not bound by the agreement. However, 26/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 the High Court held that insofar as the executants of the agreement (sons of Aziz Khan) were concerned they were bound by it and valid and enforceable contract existed between the first respondent and the sons of Aziz Khan. The High Court, accordingly, granted decree for specific performance to the extent of 5/6th shares which Aziz Khan's sons had in the property. This Court affirmed the decree of the High Court and it was held that plaintiff's suit for specific performance to the extent of 5/6th share was rightly decreed by the High Court warranting no interference. While holding so, this Court relied upon earlier decision in the case of Manzoor Ahmed Magray.
24. In view of the above decisions of this Court and the facts and circumstances which have already been noticed by us, in our opinion, there is no impediment for enforcement of the agreement against the vendor to the extent of his half share in the property.”
31. It is pertinent to note that Section 17 of Specific Relief Act mentions the contract where the vendor or lessor of immovable property cannot claim specific performance and it contemplates that where a contract to sell or let immovable property is made by a person, who has no title or his title is doubtful, then the contract cannot be specifically 27/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 enforceable in favour of the vendor or lessor. To put it in other way, the vendor cannot specifically enforce the said contract. It means that the alleged vendor is not innocent and he knows that he has no title, but still enters into contract to sell or let his immovable property.
32. In the case on hand, as already pointed out, there was a preliminary decree passed by a competent Court, wherein, it was specifically declared that the defendant was entitled to 1/3 share in the suit property. Considering the above and on applying the legal position sated in Kammana Sambamurthy's case, there is absolutely no bar for enforcement of the sale agreement against the defendant to the extent of his share in the suit property.
33. The learned trial Judge, considering the above objections of the defendant, has observed that in the suit for specific performance, the issue as to whether the defendant was having ownership over the entire property as per the agreement cannot be gone into and that even if any sale deed was executed as per agreement for the entire property, the same will not bind the other owners of the property, if any.
28/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007
34. The learned counsel for the appellant would strongly contend that the trial Court has miserably failed to frame an issue touching upon Section 16(c) of Specific Relief Act regarding readiness and willingness on the part of the plaintiff and that even in the judgment there is no finding on the point of readiness and willingness.
35. As rightly pointed out by the learned counsel for the contesting defendants, in the plaint, the plaintiff has raised necessary pleadings with regard to readiness and willingness on the part of the plaintiffs to perform his contract and the relevant portion is extracted hereunder :
“thjp fpiua xg;ge;j fhyk; Kjy; ehsJ tiu fpiua xg;ge;jj;ij mDrhpj;J fpiuag; gj;jpuj;ij Kog;gjw;F vd;W jahuhfnt ,Ue;J te;jpUf;fpwhh;. ,g;bghGJk; jahuhf ,Uf;fpwhh;. ,dpnkYk; jahuhf ,Ug;ghh;.”
36. The plaintiff has specifically stated that he was/is/ will be ready and willing to perform his part of the contract. It is pertinent to note that 29/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 the defendant in his written statement has nowhere whispered about the plaintiff's averments with regard to the readiness and willingness and the defendant has nowhere denied or disputed the plaintiff's case with regard to the readiness and willingness.
37. Moreover, as rightly contended by the learned counsel for the contesting defendants, the plaintiff has taken a stand that she has never executed any sale agreement, but a document was taken from her as if it is a mortgage deed.
38. As rightly contended by the learned counsel for the contesting defendants, it is not the case of the defendants that though the sale agreement is genuine, the plaintiff was/is never ready and willing to perform his part of the contract. Since the defendant has not specifically disputed the plaint averments, the trial Court's failure to frame a particular issue with regard to the readiness and willingness cannot be found fault with and the trial Court after framing an issue whether the plaintiff is entitled to get the relief of specific performance, has dealt with the defence 30/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 raised by the defendant and came to the decision that the plaintiff was entitled to get the relief of specific performance.
39. It is pertinent to note that the plaintiff after getting decree in the present suit, has laid the execution proceedings and got the sale deed executed by the Court and also got possession of the property. Whatever it is, pending the above suit, the preliminary decree was passed, declaring that the defendant was entitled to get 1/3 share only, the present decree can be held to be valid to the extent of share owned by the defendant. Considering the above, this Court is in entire agreement with the findings and consequent decreeing of the suit by the trial Court, cannot be found fault with. Hence, this Court concludes that the above appeal is devoid of merits and the same is liable to be dismissed.
40. A.S.No.1386 of 1995 :
As already pointed out, the defendant's sisters have obtained preliminary decree for partition, dated 30.11.1994 in O.S.No.1 of 1989 and in pursuance of the same, they have filed an application in I.A.No.188 of 31/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 1991 for passing of final decree. The learned trial Judge, taking note of the Commissioner's report and the submissions made by the learned counsel on either side, has passed the final decree, dated 30.11.1994 allotting buildings Door Nos.32 and 32 D to the petitioners 1 and 2 (defendant's sisters respectively) and the building Door No.39 C to the respondent/defendant and also allotted 18 cents of land to all the three parties therein.
41. The appellant, being the decree holder in O.S.23 of 1991 for specific performance, has filed the present appeal, challenging the final decree passed in I.A.No.188 of 1989 in O.S.No.1 of 1989.
42. The main contention of the appellant/third party is that the trial Judge has failed to note that the property that has been allotted to the plaintiffs in Door No.39 D was already alienated by the defendant to the knowledge of the parties and that they have purposely and collusively have arranged the allotment of the said property to avoid the sale in favour of the appellant.
32/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007
43. The learned counsel for the appellant would contend that the property bearing Door No.39 D ought to have been allotted to the share of the defendant and that they have purposely allotted the said property to the plaintiffs, only to destroy the rights of the appellant and that the trial Court has failed to apply the doctrine of equity while allotting the shares to the parties.
44. It is pertinent to note that during the pendency of final decree petition, the appellant's suit for specific performance was decreed in his favour on 16.07.1993. As rightly contended by the learned counsel for the appellant that the appellant by getting a decree for specific performance, he has stepped into the shoes of the defendant. But admittedly, the appellant has not been impleaded in the final decree proceedings. Since the appellant had obtained the decree for specific performance from the competent Court and he stopped into the shoes of the defendant, who was allotted 1/3 in the suit property and also to arrive the equity, the petitioners should have taken steps to implead the appellant.
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45. The contentions of the respondents 1 and 2/ petitioners that since their attempt to get themselves impleaded in the suit for specific performance, was resisted by the appellant and that their application was dismissed, is not a ground to say that the appellant cannot be impleaded in their final decree proceedings.
46. No doubt, pending partition suit, the appellant has filed the suit for specific performance and pending final decree proceedings, he obtained a decree and subsequently, a sale deed from the Court. According to the respondents 1 and 2/petitioners, the claim of the appellant is clearly hit by the doctrine of lis pendens.
47. No doubt, as rightly contended by the learned counsel for the respondents/petitioners, lis pendens, as contemplated under Section 52 of the Transfer of Property Act, is squarely applicable to the case on hand. But, at the same time, Section 52 of Transfer of Property Act would not make void or unlawful any sale of the contested properties, but only puts the purchaser beyond the binding limits of the judgment on the disposition of the conflict. It is pertinent to note that the effect of the rule of 34/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 liespendent is not to invalidate or avoid the transfer, but to make it subject to the result of the litigation.
48. During the pendency of partition proceedings, the sale deed obtained by the appellant from the Court, in pursuance of the decree for specific performance, is hit by the doctrine of lis pendens. Since the suit was disposed of declaring the 1/3 share of the third respondent/defendant in the suit property, the sale taken by the appellant is valid to the extent of share allotted to the third respondent/defendant.
49. The main complaint of the appellant is that the respondents 1 and 2 and their brother third respondent have purposely and collusively proceeded with the final decree proceedings and the property, which was taken possession by the appellant in pursuance of the sale obtained by him, has been allotted to one of his sisters. Considering the way in which, the final decree proceedings were proceeded and the non impleadment of the appellant, the plea of the appellant cannot be ruled out completely. Hence, this Court concludes that the final decree passed in I.A.No.188 of 1991 in 35/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 O.S.No.1 of 1989 on the file of the Principal Subordinate Judge, Tirunelveli, dated 30.11.1994, is not in accordance with law and the same is liable to be set aside.
50. C.M.S.A(MD)No.25 of 2007 :
It is evident from the records that the preliminary decree holders in I.A.No.188 of 1991 in O.S.No.1 of 1989, have laid the execution proceedings in E.P.No.103 of 2006 for taking possession of the property allotted in the final decree, that the Executing Court has passed an order for delivery, that when the Ameen of the Court had attempted to execute the delivery warrant, objection was raised by the appellant/third party and that the appellant being a third party has filed an application in E.A.No.631 of 2006 under Order 21 Rule 97 CPC for removal of obstruction. After enquiry, the learned Principal Subordinate Judge has passed an order dated 19.01.2007, dismissing the petition. Aggrieved by the dismissal order, third party-objector has preferred the appeal in C.M.A.No.12 of 2007 and the learned I Additional District Judge, on hearing the arguments of both the 36/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 sides and on perusal of the records, has passed the impugned order dated 24.10.2007, dismissing the appeal and thereby confirming the dismissal of the petition in E.A.No.631 of 2006, filed under Order 21 Rule 97 C.P.C.
Challenging, the said order, the appellant has come forward with the present appeal.
51. It is pertinent to note that this Court in the connected appeal in A.S.No.1386 of 1995, has allowed the said appeal and set aside the final decree passed in I.A.No.188 of 1991 in O.S.No.1 of 1989 on the file of the Principal Subordinate Judge, Tirunelveli, dated 30.11.1994, and directed the trial Court, after impleadment of the appellant, to proceed with enquiry afresh and to pass orders in accordance with law.
52. As already pointed out, in pursuance of the final decree passed in I.A.No.188 of 1991 in O.S.No.1 of 1989 on the file of the Principal Subordinate Judge, Tirunelveli, dated 30.11.1994, since the final decree itself has been set aside, the execution proceedings and the present appeal have become infructuous. Hence, this Court concludes that the order passed in C.M.A.No.12 of 2007 on the file of the I Additional District 37/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 Court, confirming the order passed in E.A.No.631 of 2006, is liable to be set aside.
53. In the result, A.S.No.399 of 1995 is dismissed. A.S.No.1386 of 1995 is allowed and the final decree passed in I.A.No.188 of 1991 in O.S.No.1 of 1989 on the file of the Principal Sub Court, Tirunelveli, dated 30.11.1994, is set aside. The respondents 1 and 2 are directed to take necessary steps for impleadment of the appellant within one month from the date of receipt of copy of this order and after impleadment, the trial Court is directed to conduct enquiry afresh and to pass final decree in accordance with law within a period of three months, thereafter. C.M.S.A(MD)No.25 of 2007 is dismissed as infructuous.
13.12.2022 NCC : Yes/ No Index : Yes : No Internet : Yes : No das To
1.The Subordinate Judge, Tirunelveli.
38/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007
2.The Principal Subordinate Judge, Tirunelveli.
3.The I Additional District Court, Tirunelveli.
4.The Record Keeper, Vernacular Section, Madurai Bench of Madras High Court, Madurai.
K.MURALI SHANKAR,J.
das Pre-delivery order made in A.S.Nos.399 and 1386 of 1995 and C.M.S.A(MD)No.25 of 2007 39/40 https://www.mhc.tn.gov.in/judis A.S.No.399 & 1386 of 1995 and CMSA(MD)No.25/2007 13.12.2022 40/40 https://www.mhc.tn.gov.in/judis