Madras High Court
T.A.Srinivasan vs M.Sankarasubramanian on 26 October, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
1
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 26.09.2018
Pronounced on : 26.10.2018
Coram
The Hon'ble Mr. Justice C.V.KARTHIKEYAN
Appeal Suit No.428 of 1995
1. T.A.Srinivasan
2. T.A.Thirumalai
3. T.A.Alagar
4. T.A.Venkatachari
5. Smt. Chellammal ... Appellants
Vs
1. M.Sankarasubramanian
2. Smt. Janaki (Died) ... Respondents
Respondent 2 died, Appellants 1 to 4 already on record are the legal
representative of the deceased respondent R2, vide memo in USR.No.
4547 of 17 dated 06.10.17 made in CMP(md).6087 of 17 in A.S.No.
428 of 95 by JNBJ vide court order dated 05.10.2017.
Prayer: This Appeal Suit was filed under Section 96 of CPC, against
the Judgment and decree of the Learned Subordinate Judge,
Srivilliputtur, in O.S.Nos.113 of 1987, dated 25.11.1994.
Counsel for Appellants : Mr.A.R.M.Ramesh
Counsel for Respondent R1 : Mr.T.K.Gopalan
R2 : Died
http://www.judis.nic.in
2
JUDGMENT
The defendants 2 to 5 and 7 in O.S.No.113 of 1987 on the file of the Subordinate Court, Srivilliputtur are the appellants herein. The first defendant had died pending the suit and the defendants 2 to 7 had been impleaded as his legal representatives. The sixth defendant was shown as the second respondent. She died during the pendency of the appeal and it was recorded that the 1 to 4 appellants are her legal representatives and consequently no new legal representative need to be impleaded. In effect the defendants are the appellants and the plaintiff is the respondent.
2. The plaintiff had filed O.S.No.113 of 1987 seeking a Judgment and decree directing the defendants to execute a sale deed on the strength of an agreement dated 16.07.1984 in favour of the plaintiff in respect of the suit schedule property and receive the balance sale consideration of Rs.29,000/-, and in default for a direction for the Court to execute the sale deed and also for a direction against the defendants to put the plaintiff in actual possession of the suit property or in the alternate direct the defendants to refund the advance amount of Rs.4,000/- together with interest at 12% per annum from http://www.judis.nic.in 3 16.07.1984 till date of payment and also direct the defendants to pay the costs of the suit.
3. This suit had come up for consideration before the Learned Subordinate Judge, Srivilliputtur and by Judgment and Decree dated 25.11.1994, the suit was decreed with costs, and the defendants were directed to receive the balance sale consideration, execute sale deed in favour of the plaintiff and also handover the possession of the suit property of the plaintiff. Challenging that Judgment and decree, as stated above the defendants had filed the present first appeal. O.S.No.113 of 1987 (Subordinate Court, Srivilliputtur):
4. The suit was filed by M.Sankarasubramanian, against S.Appan Thirumalachari. During the pendency of the suit the defendant S.Appan Thirumalachari died and his legal representatives namely, T.A.Srinivasan, T.A.Thirumalai, T.A.Alagar, T.A.Venkatachari, S.Janaki and Smt. Chellammal have been brought on record as defendants 2 to
7. The suit had been filed seeking a Judgment and decree directing the defendants to execute a sale deed on the strength of an agreement of sale dated 16.07.1984 in favour of the plaintiff in respect of the suit http://www.judis.nic.in 4 schedule on receipt of balance of Rs.29,000/- and in default for the Court to execute sale deed and also for a direction against the defendants to put the plaintiff in possession of the suit property and also in the alternative to refund the advance amount of Rs.4,000/-
together with interest at 12% per annum from 16.07.1984 till the date of payment and also for costs of the suit.
5. The suit property is land and building in Door No.135, Ward No.1, South Street, Watrap, Srivilliputtur. In the plaint it had been stated that the suit property was the ancestral residential house of the defendants. It was joint family property of the defendants. The first defendant S.Appan Thirumalachari, who died pending the suit was the father and Kartha of the joint family. The defendants 2 to 5 are his sons and the sixth defendant is his daughter. The seventh defendant is his wife. It had been stated that the first defendant for himself as kartha and as manager of the joint family, entered into an agreement with the plaintiff at Madurai to sell the suit property to the plaintiff or his nominee for a toal consideration of Rs.33,000/-. He received Rs. 4,000/- as advance. This agreement was dated 16.07.1984. It was agreed between the parties that the sale deed should be executed by the first defendant along with his sons and daughter within a period of http://www.judis.nic.in 5 three months and that the balance sale consideration of Rs.29,000/- must be paid by the plaintiff at the time of registration of the sale deed. It was then stated that three months time was tentatively fixed for the execution of sale deed. It was also stated that the possession of the property was with T.S.Rajan, who was a close relative of the deceased first defendant. It was leased out for a period of one year and the lease expired on October 1985. It was stated that possession could be secured by the end of October 1985. It was specifically stated by the plaintiff that he entered into an agreement on behalf of his sister who was then residing in Hyderabad and required a in house in Watrap.
6. The plaintiff also stated that he tried to get the balance sale consideration from his sister but it took some time. The vacant possession also could not be obtained from T.S.Rajan. Hence the time for performance was extended by mutual consent. There were further correspondences between the parties. It was stated that subsequent to December 1984, the plaintiff was ready with the balance sale price. Ultimately the plaintiff went to Chennai on 12.05.1985 with Viswanathan, a broker, who had negotiated the sale agreement and he had also taken a bank draft for Rs.29,000/-. The draft was also handed http://www.judis.nic.in 6 over to the first defendant. It was then represented by the defendants that a power of attorney could be executed in favour of the second defendant to execute and register the sale deed at Watrap. The power of attorney was also prepared and executed. The demand draft for Rs. 29,000/- was returned back to the plaintiff. The tenant expired and his son had locked the house and gone to Kumbakonam. The Sub- Registrar stated that the sale deed can be registered only after checking the measurement of the house. The plaintiff's sister expressed dissatisfaction that possession could not be obtained.
7.It was further stated in the plaint that The second defendant then stated that he would not execute the sale deed unless Rs. 75,000/- was paid to him. The plaintiff sent an advocate notice to the first and second defendants on 25.05.1985 calling upon them to execute the sale deed. A reply notice was sent on 07.06.1985. It had been further stated that even after the exchange of notices the plaintiff tried persuading the defendants through mediators to execute the sale deed. It was also stated that the first defendant had filed eviction petition in RCOP.No.19/1985 on the file of the District Munsif Court, Srivilliputtur, against the tenant's son T.R.Ragavan, and it was pending. It is under these circumstances that the suit had been filed http://www.judis.nic.in 7 seeking the relief as stated above.
8. In the written statement filed by the defendants, it had been stated that the suit property was the joint family property of the defendants. The agreement of sale was admitted and receipt of advance was also admitted. It was stated that time was the essence of the agreement. It was stated that the property had been leased out to T.S.Rajan from 1979 and it was stated that the plaintiff was informed that he should vacate the tenant. It was only for that reason that price of the house was fixed less than the prevailing market rate. It was stated that the defendants never agreed for extension of time. They were ready to execute the sale deed within the stipulated period. However, the plaintiff was not ready to pay the balance amount. It was denied that a bank draft for 29,000/- was brought to Chennai. It was stated that at Chennai, the plaintiff informed that they would not be able to purchase the house. The broker Viswanathan, stated that he would arrange for another purchaser. It was stated that a power of attorney would be prepared. In the power of attorney it had not been mentioned that the property is to be sold to the plaintiff. It was specifically stated that the plaintiff had rescinded from the agreement. It was stated that the plaintiff was never ready and willing to perform http://www.judis.nic.in 8 his part of the agreement. It was stated that the suit is to be dismissed.
9. The plaintiff had filed a reply statement. It was reiterated that it was the obligation of the defendant to vacate the tenant. It was stated that the consideration was more than the market rate. It was reiterated that the bank draft for Rs.29,000/- had been purchased and taken to Chennai by the plaintiff. It was stated that a power of attorney was executed in favour of the second defendant to execute and register the sale deed in favour of the plaintiff. It was specifically denied that the plaintiff had rescnded from the agreement. It was stated that the suit should be decreed as prayed for.
10. On the basis of above pleadings, the learned Subordinate Judge, Srivilliputtur, framed the following issues for trial:
1. Whether the plaintiff was ready and willing to purchase the property in accordance with the agreement dated 16.07.1984?
2. Whether the first defendant had agreed to hand over the vacant possession of the suit property?
3. Whether time was the essence of the agreement of sale?
4. Whether both the parties had mutually agreed to extend the time to perform the agreement?
5. Whether it can be implied that the agreement is the reason for execution of power of attorney in favour of the second defendant, since the plaintiff had signed to the witness of the power of attorney?
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6. Whether the plaintiff had breached the terms of the agreement?
7. Whether the plaintiff is entitled for specific performance of the agreement and if not whether he is entitled for refund of the advance sale consideration?
8. Whether the defendants had suffered loss and hardship owing to the agreement of the sale?
9. To what other reliefs are to be granted in the suit?
11. During trial, the plaintiff Sankarasubramanian was examined as PW-1 and the broker Viswanathan was examined as PW-2. On the side of the defendants, the second defendant T.A.Srinivasan was examined as DW-1. The plaintiff marked as Exs.A1 to A8. Ex.A1 is the agreement dated 16.07.1984. Ex.A2 is the letter written by the first defendant dated 09.08.1985. Ex.A3 is the challan for bank draft dated 10.05.1985. Ex.A4 is the copy of advocate notice dated 25.05.1985. Ex.A5 is the reply dated 07.06.1985. Ex.A6 is the sale deed in favour of Radhalakshmi executed by N.V.Thirumalachariyar dated 26.08.1983. Ex.A7 is the letter written to the plaintiff by A.S.Srinivasachariyar. Ex.A8 is the letter written by the second defendant to T.S.Rajan dated 15.01.1985. The defendants marked Exs.B1 to B9. They are all letters written by the plaintiff to the first defendant dated 29.09.1984, 22.11.1984, 05.11.1984, 26.01.1985, 06.04.1985, 10.04.1985, 20.04.1985, 29.04.1985 and 30.04.1985. http://www.judis.nic.in 10
12. By the Judgment dated 25.11.1994, the learned Subordinate Judge, took up the issues for consideration. The learned Judge observed that time was not the essence of contract with respect to immovable properties. It was also observed that it would be sufficient if the plaintiff had the balance sale consideration at the time of registration of the sale deed. It is found that T.S.Rajan was a tenant in the suit property. It was found that the plaintiff had agreed to evict him and handover vacant possession. It was found that the first defendant was aged 75 years at the time of agreement and the defendants wanted to sell the suit property and purchase a house at Chennai. It was also found that money was required for medical expenses. It was stated that the defendants therefore stipulated three months for execution of the sale deed. The statement of the defendants denying that they had an obligation to vacate the tenant was also considered. It was found that both the sides agreed to extend the time. It was found that the plaintiff was ready with the sale consideration four months after the date of agreement. It was found that the power of attorney was executed for the purpose of registration of the sale deed by the second defendant. It was found that the defendants had agreed to handover vacant possession. It was found that a consideration was adequate. It was found that the plaintiff http://www.judis.nic.in 11 had entered into an agreement on behalf of his sister. It was also found that a plaintiff had admitted that he was not ready with the balance sale consideration immediately after the agreement. He had sought one further month for arranging the balance sale consideration. It was however, found that plaintiff was entitled for the relief of specific performance. Consequently, the suit was decreed, with costs.
13. Challenging the said Judgment and decree the defendants 2 to 5 and 7 had filed the present appeal.
A.S.NO.428 of 1995:
14. The second respondent in the appeal died during the pendency of the appeal. However, it was stated that her legal representatives are already on record as appellants 1 to 4.
15. Heard the arguments advanced by Mr.A.R.M.Ramesh, learned counsel for the appellant and Mr.T.K.Gopalan, learned counsel for the first respondent. As stated above the defendants in the suit are the appellants and the plaintiff is the first respondent. For the sake of convenience the parties will be referred as plaintiff and defendants. http://www.judis.nic.in 12
16. The points for determination in this appeal are:
1. Whether the agreement produced as Ex.A1 is enforceable in law?
2. Whether the plaintiff had been ready and willing to perform his part of the agreement from the date of the agreement?
3. Whether the plaintiff is entitled to the relief of specific performance or the alternate relief of refund of advance amount together with interest?
4. Whether the Judgment and decree of the Trial Court requires interference?
The points discussed and answered:
17. Ex.A1 is the agreement entered into between S.Appan Thirumalachariyar and M.S.Sankarasubramanian. M.S.Sankarasubramanian was the plaintiff in the suit and S.Appan Thirumalachariyar was the defendant. He died pending the suit and consequently the defendants 2 to 7 were brought on record as his legal representatives. The agreement is dated 16.07.1984. It has not been registered. This suit had been filed seeking specific performance of Ex.A1 agreement. In the plaint, it had been stated that the plaintiff entered into an agreement on behalf of his sister who was residing at Hyderabad and wanted a house at Watrap. In the plaint it had also been stated that the suit property was the ancestral residential property of the defendants. It was their joint family property. S.Appan http://www.judis.nic.in 13 Thirumalachariyar, was said to be the manager and head of the joint family consistent of himself and his major sons T.A.Srinivasan, T.A.Thirumalai, T.A.Alagar, T.A.Venkatachari, and also his daughter S.Janaki and wife Smt. Chellammal. Naturally, each one of his sons had an undivided share in the property. Their share cannot be simply sold away by the Kartha without their specific consent. They must be joined as parties to any document relating to creating encumbrance over the property.
18. Ex.A1 is the agreement of sale which had been executed in five sheets of stamp papers. The first sheet is a stamp paper for Rs. 2/-, the second, third, fourth and fifth sheets are stamp papers for 25 paisa each. There are no witnesses to the agreement. Though at the last page, the word 'Sakshigal' (witnesses) had been written, there are no names, no signatures, no witnesses. There are only two pencil lines. In the agreement it had been stated that the suit property belonged to the defendant S.Appan Thirumalachariyar. The total sale consideration was fixed at Rs.33,000/-. It was stated that an advance of Rs.4,000/- had been received. It was also stated that if the plaintiff failed to pay the balance sale consideration within a period of three months then the advance amount shall stand forfeited. It was stated http://www.judis.nic.in 14 that the defendants should register the sale deed along with his sons, or through power of attorney.
19. As stated above, the agreement is neither registered nor attested. In the first place it is admitted that the property is a joint family property. This has been stated by the plaintiff himself. The agreement had not signed by the other coparceners. In the plaint it had been stated that the agreement had been entered into on behalf of the sister of the plaintiff. That had not been mentioned in the agreement. Even in the suit relief, it had been stated that the defendants should execute the sale deed only in favour of the plaintiff. It had not been that it should be executed in favour of the sister of the plaintiff. It was also not mentioned that the sale deed should be executed in the name of the plaintiff or in the name of his nominees. Consequently, the obligation was directly on the plaintiff to perform his part of the agreement and to prove readiness and willingness.
20. In Pemmada Prabhakar & others Vs. Youngmen's Vysya Association & others (2015 (3) CTC 229), the Honourable Supreme Court, was considering a suit for specific perfomance in a case were the Suit Schedule property was a self-acquired property by http://www.judis.nic.in 15 late Pemmada Venkateswara Rao. He had purchased the said property Vide Sale Deed Document No.5174 of 1970 dated 24.11.1970 from his vendors. The said property was an intestate property. He wassurvived 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. The Suit for Specific Performance of Agreement of Sale was filed by Plaintiff/Respondents. The suit was dismissed by Trial Court. First Appellate Court in Appeal filed by Plaintiffs granted the relief of Specific Performance and directed the Defendants to execute Sale Deed on receipt of proportionate sale price. Second Appeal filed by original Defendants, came to be dismissed, giving rise to filing of the instant Civil Appeal before Apex Court.
21. The Honourable Supreme Court held as follows:
“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 http://www.judis.nic.in 16 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 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 had 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 http://www.judis.nic.in 17 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.
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 three 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.” The said Judgment directly applies to the facts of the case. http://www.judis.nic.in 18
22. In the plaint, the plaintiff had specifically pleaded as follows:
“ The property described herein below is the ancestral residential house of the defendants situated in South Agraharam, Watrap, Srivilliputhur Taluk within the jurisdiction of this Hon'ble Court.”
23. Again it had been repeated in para 4 as follows:
“ The said property is the joint family house of the defendants. The 1st defendant is the father and Kartha of the Joint family. Defendants 2 to 5 are the sons of the deceased 1st defendant and 6th defendant is his daughter.”
24. The first defendant had no authority to enter into an agreement of sale Ex.A1 without the specific consent of the other co- sharers. Their consent cannot be presumed. On this one ground itself, Ex.A1 fails. However, if the further aspect of readiness and willingness are examined, it is seen that in the plaint, the plaintiff had specifically stated as follows:
“ Plaintiff had entered in the said agreement only on behalf of his sister who was then residing at Hyderabad and was in need of a house at Watrap.
http://www.judis.nic.in 19 The plaintiff was arranging to get the balance of same amount from his sister and it took some time.”
25. He further stated as follows:
“From and subsequent to December 1984, the plaintiff was fully ready with the balance of sale price for the suit property.”
26. The agreement of sale Ex.A1 was dated 16.07.1984. In the agreement a period of three months was stipulated for performance of the agreement. In the plaint the plaintiff had admitted that the balance sale consideration was not available since he had to arrange it from his sister. This is a new fact which is not found in the agreement. Moreover he had very specifically stated that he had the balance sale consideration only from and after December 1984. It is to be again repeated that the agreement was dated 16.07.1984. Three months time was stipulated. The plaintiffs had the balance sale consideration only in December 1984 which is after five months. The plaintiffs never had the balance sale consideration at the time the agreement entered into. Readiness and willingness must be exhibited from the date of agreement till execution. If the plaintiffs was not ready within the said http://www.judis.nic.in 20 period of three months, then his suit have necessarily failed.
27. In J.Samuel Vs. Gattu Mahesh (2012 (2) SCC 300), the Honourable Supreme Court, held as follows with respect to a contract for sale of property dated 27.09.1985 and a suit filed seeking specific performance:
“A party requesting a relief stemming out of a claim is required to exercise due diligence and is a requirement which cannot be dispensed with. The term “due diligence” determines the scope of a party's constructive knowledge, claim and is very critical to the outcome of the suit”.
28. In the present case, in Ex.B1 the defendants had written a letter to the plaintiff is as follows:
“jh';fs; Twpago g[ul;lhrp 30 Mk;
njjpf;Fs; Kof;f ntz;oaJ/ Mdhy; bty;yk;
tpiyf;F nghltpy;iy/ tptrhak; neuk;
Mf ,Ug;gjhy; gzj;jpw;F rw;W
Kilahf ,Uf;fpwJ/ Mifahy; Ig;grp khjk; 30
Mk; njjpf;Fs; fz;og;ghf Koj;J tpLfpnwd;/ ,jpy; ve;jtpjkhd jila[k; fpilahJ/ Mifahy; vdf;F xU khjk; jtid bfhLf;Fk;go kPz;Lk; jh';fis ntz;of;bfhs;fpnwd;/” http://www.judis.nic.in 21 The above extract clearly shows that the plaintiff was never ready and never willing to perform his part of the agreement.
29. Appendix-A form 47 of CPC is as follows:
No. 47
Specific Performance (No. 1) (Title) A.B., the above-named plaintiff, states as follows:-
1. By an agreement dated the ...... day of ...... and signed by the defendant, he contracted to buy of [or sell to] the plaintiff certain immovable property therein described and referred to, for the sum of.......... rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.
[As in paras 4 and 5 of Form No. 1.]
6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property [or to accept a transfer and possession of the said property] and to pay the costs of the suit. http://www.judis.nic.in 22
30. It is seen from the above, that the plaintiff must state in the plaint that he has always been and is still ready and willing to perform the agreement on his part. In the present case the plaintiff had stated that he had entered into an agreement on behalf of his sister and balance sale consideration was not immediately available. Here also stated that he was ready with the balance sale consideration only from December 1984. In Ex.B1, he had specifically stated that owing to his business trouble he could not perform his part of the agreement, since he did not have the money to pay the balance sale consideration. These factors clearly shows that the plaintiff was not ready and willing to perform his part of agreement.
31. In view of the above, I hold that the plaintiff is not entitled for the relief of specific performance. Even though in the agreement, it is stated that the defendants are entitled to forfeit the advance amount, it is seen that both sides had extended the period of performance for various reasons. The plaintiff did not have the money to pay the balance sale consideration. The tenant did not vacate.
32. Consequently, I hold that the alternate relief of refund of balance of advance received can be granted to the plaintiff. Therefore I http://www.judis.nic.in 23 hold that the plaintiff would only be entitled to the relief of refund of advance amount of Rs.4,000/- together with the interest @ 12% per annum from 16.07.1984 till the date of this judgment and thereafter @ 6% per annum till the day of payment. The Judgment and decree of the Trial Court granting specific performance is set aside and the suit is decreed, only with respect to the alternate relief of refund of advance amount Rs.4,000/- together with interest @ 12% per annum from 16.07.1984 till the date of the Judgment and thereafter @ 6% per annum till date of payment.
33. The appeal is allowed. In the circumstances of the case both the sides and to bear their respective own costs. Consequently, connected civil miscellaneous petitions if any are closed.
Index :Yes/No 26.10.2018
Internet :Yes/No
smv
To,
1. The Subordinate Judge
Srivilliputtur.
2. The Section Officer
VR Section,
Madurai Bench of Madras High Court,
Madurai.
http://www.judis.nic.in
24
C.V.KARTHIKEYAN,J.,
smv
A.S.No.428 of 1995
26.10.2018
http://www.judis.nic.in