Kerala High Court
S.R. Varadaraja Reddiar vs Francis Xavier Joseph Periaria on 20 December, 1990
Equivalent citations: AIR1991KER288, AIR 1991 KERALA 288, (1991) 1 KER LT 787 (1991) 1 KER LJ 339, (1991) 1 KER LJ 339
JUDGMENT P.K. Shamsuddin, J.
1. Plaintiff in O. S. No. 142 of 1981 on the file of the Principal Sub Court, Quilon is the appellant. Suit is for specific performance of contract for sale of immovable property.
2. Plaintiff and defendant entered into an agreement Ext. A1 dated 29th September, 1976 whereby plaintiff agreed to purchase and defendant agreed to sell the plaint schedule property for a consideration of Rs. 40,000/-. Defendant had obtained a preliminary decree in O. S. 111 of 1972 on the file of Sub Court, Quilon, for partition and recovery of possession, which declared that plaintiff got 171/210 shares in the plaint schedule property, which had an extent of 15 cents. Defendant made the plaintiff to believe that defendant was taking steps before the execution court for recovery of possession. It is this property that was agreed to be sold and the defendant received Rs. 1001/- towards advance from the plaintiff. The agreement also provided that the defendant on recovery of possession of the property through court would issue notice to plaintiff and that plaintiff should be ready to pay the balance of consideration and to obtain the sale deed within one month from the date of receipt of notice. Defendant informed plaintiff that he applied for passing of final decree in O.S. No. 111 of 1972. However, plaintiff came to know that defendant was taking steps to alienate the property to a stranger. Thereupon, plaintiff filed O.S. No. 591 of 1977 before Munsiffs Court, Quilon seeking an injunction, restraining defendant from executing the sale deed or agreement to any person, other than plaintiff in respect of plaint schedule property or any portion thereof. Defendant filed a written statement in the said suit admitting the agreement executed by him in favour of plaintiff and stating that he had no idea to sell the property to strangers, that he was willing to execute the sale deed in favour of plaintiff and that he would give notice to plaintiff on getting delivery of his share through court. On the basis of the averments made by defendant, plaintiff did not press the suit and it was dismissed. The application filed by defendant for passing the final decree was posted on several occasions for depositing the commission batta, but defendant wilfully did not deposit the commission batta. Plaintiff approached defendant and told him that he would pay the commission batta and meet other expenses for conducting the final decree application, but defendant refused to accept that offer. The attempt of defendant was to protect the matter. The application filed by defendant was dismissed for non-payment of batta. Plaintiff issued notice to defendant stating that he was prepared to pay the balance of sale consideration and to continue the final decree proceedings and enquiring whether he was prepared to execute the sale deed in favour of plaintiff. Defendant did not send a reply to the said notice. It was the duty of defendant to issue notice in terms of the agreement after obtaining recovery of possession of the property by virtue of the decree in O.S. No. 111 of 1972: Plaintiff averred that he had every right to waive the liability of defendant to prosecute the final decree proceedings and get delivery of the property and to issue notice of such delivery to plaintiff. Plaintiff was ready and willing to obtain the sale deed on payment of Rs. 38,999/- towards the balance of consideration, but defendant was not prepared to accede to the request of plaintiff and hence the suit.
3. Defendant in his written statement admitted that he was the 1st plaintiff and his two brothers and mother were plaintiffs 2 to 4 in O. S. No. 111 of 1972 on the file of Sub Court, Quilon and a preliminary decree was passed in O. S. No. 111 of 1972 on 20-12-1975 declaring their rights to 171/210 shares over the plaint schedule property and allowing them to get it separated by metes and bounds and to recover possession through court, He averred that defendants 5 and 7 to 11 preferred an appeal, A. S. No. 281 of 1976, before the District Court, Quilon, that appeal was heard and dismissed by judgment dated 30-9-1977 and that after the dismissal of the appeal, he moved for passing a final decree in O. S. No. 111 of 1972 by his application dated 21-3-1978, He further averred that there was no negligence on his part in prosecuting the final decree application. The receipt of lawyer's notice was also admitted by him, but he contended that due to unavoidable reasons, he could not send a reply. He averred that as per the terms of the agreement, there was no obligation on his part to get the final decree in O. S. No. 111 of 1972 passed or to take delivery of the property and that plaintiff was not entitled to compel him to do so. He also averred that according to the agreement, plaintiff had no right to purchase the right of defendant under the preliminary decree in O.S. No. 111 of 1972 and in the circumstances, the suit was liable to any relief.
4. On a consideration of the evidence in the case, the court below found that the contract was a contingent contract and that it was not enforceable and in that view of the matter, the suit was dismissed.
5. In this appeal, learned counsel for appellant has challenged the finding of the court below. In order to appreciate the respective contentions of the parties, it is profitable to extract Ext. A1, which reads as follows:
"Received from Mr. S.R. Varadaraja Reddiar, residing at M.C. No. 139, Asramam Central Ward, Quilon, the sum of Rs. 1,001/-(Rupees One thousand and one only) being advance towards the sale of my plot of land at Lakshminada, Quilon, measuring approximately 15 cents for the agreed total value of Rs. 40,000/- (Rupees forty thousand only).
No sooner the court demarks the said land and hands over same with vacant possession to me, I shall give you notice thereof and you are to execute the document of sale for same within one month of the said notice.
Signature : Sd/- F. X. J. Pereira 29-9-76.
I, S.R. Varadaraja Reddiar, agree to execute the sale deed for the above said land within one month of you giving me notice as mentioned above.
Signature Witness: 1. P.K.S. Kumaraswamy, Lak shminada, Quilon. Sd/-
2. J.A.E. Periera, Shanthi Bhavan, Quilon-9. Sd/-
This property comes to me as per the partition deed executed by my brothers and mother and myself.
sd/- F. X. J. Pereira."
Learned counsel for appellant submitted that the agreement cannot be considered as a contingent contract and that it is enforceable. Learned counsel for respondent submitted that it is only when the court demarcates the land and hands over vacant possession to defendant, he had to issue a notice to plaintiff and that the document of sale had to be executed within one month of the said notice, that the court has not demarcated the land and has not handed over vacant possession to defendant and that therefore the suit is not maintainable. Learned counsel also submitted that the agreement was uncertain, that it does not mention the exact portion to be conveyed to the plaintiff and that in the circumstances, the contract is also unenforceable. It is not disputed that a final decree was passed in O. S. No. 111 of 1972 declaring that the plaintiff was entitled to get 171 shares out of 210 shares. It has also come out in evidence that the decree was challenged in an appeal which was also dismissed, and that the defendant filed an application for passing final decree and a Commissioner was appointed for effecting partition by metes and bounds. The evidence also reveals that defendant was not prosecuting the final decree proceedings with due diligence and that his application for appointment of a commission was dismissed by reason of failure to deposit commission batta though the matter was posted on several occasions for the purpose. The conduct of defendant naturally aroused suspicion in the mind of plaintiff and he filed O.S. No. 591 of 1971 in the Munsiff's Court, Quilon, praying for an injunction, restraining the defendant from alienating the property to another and entering into an agreement of sale of the property. Ext. A2 is the plaint. In the plaint, it was also averred that though defendant was liable to convey his right to plaintiff, defendant was taking hasty steps to convey his rights in terms of the preliminary decree to strangers and that therefore, it was necessary to issue a permanent injunction, restraining the defendant from conveying the property. Ext. A3 is the written statement filed by defendant. He admitted about the preliminary decree and the dismissal of an appeal filed against that and execution of agreement by him for conveying his right in the property to plaintiff. He averred in the written statement that he was willing to act in accordance with the terms of the agreement and that he would inform plaintiff as per a notice on getting vacant possession of the property in execution of the decree. He also denied that he had any idea to sell the property to any other person. Ext. A4 is the judgment dated 27-9-1978 and Ext. A5 is the decree passed in that suit. Ext. A4 states that the counsel for plaintiff and defendant represented to the court that plaintiff was not pressing the suit to continue in view of the averments in the written statement and accordingly the suit was dismissed. Ext. A6 is the application dated 25-3-1978 filed by defendant for passing the final decree. In the plaint, in this suit, it is averred that the court allowed the application for issue of a Commission in O.S. No. 111 of 1972 and granted time on several occasions to pay the batta and on knowing this, plaintiff approached the defendant and expressed his willingness to pay the batta and also to pay the expenses for conducting the case and also to take steps to get vacant possession of the property, but the defendant did not accede to the request of plaintiff and ultimately, the application for commission was dismissed for default in payment of batta. It was also averred in the plaint that thereupon the plaintiff informed the defendant by a notice dated 6-4-1981 through a lawyer that defendant would be absolved of the liability to prosecute the case and get vacant possession and the plaintiff would take responsibility of conducting the case and that it was enough, if the defendant executed a sale deed conveying his right on receipt of balance of consideration. It was also stated in the plaint that defendant was also informed through notice that plaintiff Was prepared to complete the transaction on any date on receipt of intimation from him to execute the document, but the defendant did not send a reply after receipt of notice or pay the commission batta and execute the final decree. In para 7 of the plaint, it was further stated that though it was the defendant's obligation, according to the agreement, to get vacant possession of the property pursuant to the final decree in O. S. No. 111 of 1972, but the plaintiff was waiving his right. In para 8 of the plaint, plaintiff averred that he had necessary funds for payment of Rs. 38,999/-, the balance of consideration and he was prepared to deposit it or to pay the same to the defendant, if he agreed to execute the document.
6. In the written statement, defendant stated that there was no intentional laches or negligence on his part in prosecuting the final decree proceedings. The averment in the plaint that plaintiff approached the defendant and told him that plaintiff was prepared to bear all the expenses in connection with final decree proceedings and that the defendant should give necessary instructions to his advocate to get final decree passed and take delivery of the property but the defendant did not comply with the plaintiff's request was denied by the defendant. However, he admitted that he received the lawyer's notice sent by plaintiff, but contended that due to unavoidable reasons, he could not send a reply. He further averred that plaintiff was not legally entitled to the claims and demands made in the notice. He also contended that there is no obligation on his part to get the final decree in O.S. No. 111 of 1972 passed or get delivery of the property and the plaintiff cannot compel the defendant to do so and that in terms of the agreement the plaintiff is not entitled to specific performance claimed in paragraphs 7 and 8 of the plaint or legally competent to waive any of the provisions of the agreement dated 27-9-1978 and that as the agreement was contingent contract, it was unenforceable.
7. Learned counsel for appellant contended that though the agreement provided that defendant should get vacant possession of the property and give notice to the plaintiff, it was open to plaintiff to waive that obligation of defendant and that the defendant cannot contend that plaintiff cannot waive his right. It may be mentioned in this connection that in the earlier suit, plaintiff had no contention that the agreement was contingent in nature and that therefore it was not unenforceable. As a matter of fact, in para 4 of Ext. A3 written statement, there is a clear averment that defendant was prepared to perform his obligation in accordance with the agreement and that he would also give notice on getting vaccant possession of the property. It was stated in para 5 of Ext. A3 that defendant was prepared to assign the property to plaintiff according to the agreement. It is on account of this plea of defendant in the written statement that Ext. A4 judgment came to be passed on a representation made by the counsel for plaintiff and defendant. In view of his conduct in the earlier suit and his averments in the earlier suit and consequential judgment in Ext. A4, it is not open now to defendant to contend that the contract is a contingent contract and that it is unenforceable.
8. Nor am impressed by the contention of defendant that the plaintiff cannot waive his right. In Lalitha v. Davanandan and Anr. (A. S. No. 23 of 1984), I had occasion to consider the question whether a party for whose benefit a provision is incorporated is entitled to waive the benefit of that provision. I held that it is open to that party to waive the right based on a Supreme Court decision in Kamala Ranjan Roy v. Baijnath Bajoria AIR 1951 SC 1. In the Supreme Court case, a lease contained a covenant not to assign without first obtaining the written consent of the lessor and such consent was not to be unreasonably withheld in case of respectable or responsible person. In the course of judgment, the Supreme Court observed as follows at page SC 4: AIR 1951 :--
"The fourth objection is that the High Court was wrong in holding that the term in the agreement that the defendant must obtain the consent of the lessor before executing the assignment to the plaintiff was a term for the benefit of the plaintiff only. It will be recalled that that was a term which was introduced by the plaintiff in his offer that eventually ripened into an agreement. The term was not expressed in a manner indicating that it was inserted in the agreement for the protection of the defendant. In other words, the objection that the consent of the lessor had not been obtained was one which could be availed of by the plaintiff who could rescind the contract and claim damages for the breach thereof. We cannot sec how, in view of the language used in the correspondence, the defendant could plead the absence of the lessor's consent as relieving him from the obligation of performing his part of the agreement if the plaintiff waived the objection and insisted on his carrying out the agreement. The absence of consent may amount to a defect in the title of the defendant, but which the plaintiff was willing to accept."
In the light of the principles enunciated in the above ruling of the Supreme Court and also in my decision in Lalitha's case (supra), it has to be held that it is open to plaintiff to waive his right of getting vacant possession of the property on execution of the decree in O. S; No. 111 of 1972 and to seek specific performance of the contract by compelling the defendant to execute the document conveying his right under the decree, without insisting on getting vacant possession.
9. In this connection, reference may also be made to the decision of the Supreme Court in Mrs. Chandnee Widya Vati Madeen v. Dr. C.K. Katial (AIR 1964 SC 978). In that decision, the plaintiffs entered into a contract of sale of a house belonging to the defendant on the plot granted by the Government. One of the terms of the contract was that the vendor should obtain necessary permission of the Government for the sale within two months of the agreement and if the permission was not forthcoming within that time, it was open to the vendees to extend the date or to treat the agreement as cancelled. The vendor made an application for permission, but for the reasons of her own, withdrew the same. In the suit filed by the vendees for specific performance of the contract or in the alternative for damages, it was found that the vendees were always willing and ready to perform their part of the contract, that it was the vendor who wilfully refused to perform her part of the contract and that the time was not of the essence of the contract. The Supreme Court held that the contract was not a contingent contract and that the parties had agreed to bind themselves by the terms of the document executed between them. The Court had got to enforce the terms of the contract and to enjoin upon the vendor to make the necessary application for permission. In the event of the permission being refused, the vendees shall be entitled to the damages.
10. In Ramesh Chandra Chundiak v. Chuni Lal Sabharwal (AIR 1971 SC 1238), the Supreme Court again considered the argument advanced that the contract was unenforceable being a contingent contract. In that case, appellants entered into an agreement with the respondents for the purchase of a plot allotted by the Rehabilitation Ministry to the respondents and a sum of Rs. 7,500/-was paid as earnest money towards the purchase-money of Rs. 22,500/-. The balance was to be paid on the execution of the sale deed by the respondents. The sale deed was not executed in favour of the respondents by the Government until 21-5-1956. Their title was incomplete and sanction had to be obtained from the Rehabilitation Ministry. The period for execution of the sale deed was extended to obtain sanction. It was agreed while extending the period for execution of the sale deed that the same shall be got executed after receipt of the sanction. The respondents further undertook to inform the appellants as soon as sanction was received and to execute the sale deed within a week and get it registered on receipt of the balance amount of consideration. It was held that there was no question of time having ever been made the essence of the contract. So long as the vendor's own title was incomplete, there was no question of the sale being completed. The Supreme Court, in the circumstances, held that subsequent cancellation of the agreement was not justified and a decree for specific performance was granted.
11. The forgoing discussion would show that the relief of specific performance cannot be denied on the alleged ground that the agreement is a contingent contract.
12. Plaintiff examined himself as P.W. 1. He gave evidence regarding the execution of. Ext. A1 and also the institution of O.S. No. 111 of 1972 by him on knowing that the defendant was trying to assign the property to strangers and the withdrawal of the suit on the basis of the statement in Ext. A3, the written statement filed by defendant to the effect that he was willing to assign the property to plaintiff and that he had no intention to sell the property to any other stranger. He also proved Ext. A4 judgment and Ext. A5 decree in that suit. He testified that plaintiff did not pay the commission batta in the application for passing final decree in O. S. No. 111 of 1972 and that the plaintiff approached the defendant and said that it was enough to assign defendant's right under the final decree and that he would prosecute the final decree proceedings, he also deposed that he sold away the building, where he was residing for the purpose of raising funds for payment of balance of consideration and he was now staying in a rented house. He also stated that if the defendant was prepared to assign his right in the decree in O. S. No. 111 of 1972, he could continue the final decree proceedings. Though P. W. 1 was cross-examined at length, nothing has been elicited to discredit his testimony. PW 2 is an attestor to Ext. Al and he deposed that he is a friend of both plaintiff and defendant that the plaintiff told him that defendant was taking steps to assign the property to strangers and that thereupon, he spoke to defendant and asked him to do the needful.
13. Defendant has not gone to the witness box and given evidence. The facts emanating from the evidence clearly show that plaintiff was always ready and willing to take the document according to the terms of Ext. A1 and that he was even prepared to waive his right to get vacant possession and was willing to take assignment of the right of defendant in the plaint schedule property under the decree in O. S. No. 111 of 1972. The conduct of defendant would show that he was not prepared cither to prosecute the final decree proceedings or get vacant possession of his share, or to assign his right under the decree to plaintiff and that his intention was to protract the proceedings and avoid the contract. In such circumstances, in my view, plaintiff is entitled to a decree for getting assignment of the right of defendant under the decree as prayed for by him.
14. Learned counsel for respondent also submitted that the agreement is not enforceable in view of Section 29 of the Contract Act. I have already held, in view of his averment in the earlier suit, O.S. No. 591 of 1971 and the consequential order passed by the court, it is not open to him to raise such contention. However, since the counsel has raised such a contention, I shall proceed to consider it on merits. Learned counsel for appellant submitted that the exact extent or the boundaries and survey numbers or the location of the property were not mentioned in Ext.A1. Section 23 of the Contract Act lays down that agreements, the meaning of which is not certain, or capable of being made certain, arc void. In my view, there is no uncertainty as far as Ext.A1 agreement is concerned. Both parties are well aware of the property to be conveyed. There was only one item of property involved in O.S. No. 111 of 1972 and defendant has 171 out of 210 shares in that property and a preliminary decree has been passed for partition and allotment of 171 shares out of 210 shares to defendant. The total extent of the property is only 18 1/2, cents and the defendant is entitled to 15.06 cents in partition. Ext. A1 mentions that it is approximately 15 cents to which defendant is entitled, and that it is approximately that extent which was agreed to be sold. In the circumstances, there is no uncertainty about the property to be conveyed. Defendant had at no stage a case that agreement Ext. A1 was uncertain. In the earlier suit, O.S. No. 591 of 1977, he filed written statement Ext. A3 stating that he was willing to seil the property and he had no intention to sell the property agreed to be conveyed under Ext. A1 to any other person. As pointed out earlier, it is pursuant to such a representation in his written statement that plaintiff withdrew the suit and it is clear from the decree passed in that suit. He had no case that there is ambiguity in the identity of property or the contract was unenforceable or contingent. As indicated earlier, preliminary decree was passed allotting 171 out of 210 shares and appeal filed against the preliminary decree was dismissed and the preliminary decree became final. An application was also made for passing final decree. As indicated above, it is only on account of the default of the defendant to pay batta for Commissioner, that the application for appointment of the Commissioner was dismissed. As pointed out earlier, the motive of the defendant to protract the proceedings and to avoid contract under some pretext or other is clearly discernible. The defendant did not take any effective steps to fulfil his obligation to get final decree passed and take delivery and in the circumstances, defendant cannot he permitted to plead that the contract was not enforceable. Had the defendant seriously prosecuted the final decree proceedings the final decree would have been passed and delivery would have been obtained. Defendant's deliberate inaction with ulterior motive cannot be permitted to be projected as a shield to defeat the contract. Further, once the plaintiff expressed his readiness to waive his right to insist on getting a final decree passed and delivery of the property notice by the defendant to plaintiff, no plea of contigency would survive.
15. Learned counsel for respondent finally submitted that in view of Section 14(b) and (d) of the Specific Relief Act, the contract in this case cannot be enforced. Section 14(b) and (d) states that contract, which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms and a contract the performance of which involves the performance of a continuous duty which the Court cannot supervise, cannot be specifically enforced. I am unable to see how the agreement in question falls under either Clauses (b) or Clause (d) of Section 14 of the Act. Therefore, that submission is also without any merits.
16. The foregoing discussion would show that the judgment and decree of the Court below are unsustainable. I therefore set aside the judgment and decree of the Court below and pass a decree, directing the defendant to execute a document within six weeks from today, conveying the right of plaintiff under the decree in O.S. 111 of 1972 on receipt of Rs. 38,999/-, the balance of consideration and empowering the plaintiff to get himself impleaded in the final decree proceedings in O.S. 111 of 1972 and get allotment of 171/210 shares on partitioning by metes and bounds. The plaintiff will deposit the balance of consideration within a period of one month from today, if the deposit is not already made. In case of failure on the part of defendant to execute the document on receipt of such balance of consideration, plaintiff will be entitled to get the document executed through Court.
In the result, the appeal is allowed. Appellant will be entitled to his cost in the appeal. Issue photo-copy of this judgment to both counsel on ususal terms.