Madras High Court
M.S.Mani vs V.Ramalingam on 3 April, 2012
Author: T.Raja
Bench: T.Raja
IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated:- 03.04.2012 Coram:- The Hon'ble Mr. Justice T.RAJA Second Appeal No.452 of 2007 M.S.Mani ... Appellant vs. 1.V.Ramalingam 2.Parameswari 3.V.Kuttiyappan 4.V.Karthikeyan 5.Usha 6.Meneka 7.Sivakumar 8.Poonguzhali 9.Selvakumar ... Respondents Second Appeal filed under Section 100 CPC. as against the judgment and decree, dated 01.12.2006, passed by the Sub-Court, Vellore, in A.S. No.30 of 2006, reversing the judgment and decree, dated 19.01.2006, passed in O.S.No.329 of 1996, by the Principal District Munsif, Vellore. For Appellant : Mr.R.Rajaramani Mr.A.N.Padmanabhan For Respondents : Mr.S.V.Jayaraman, SC for Mr.P.Jagadeesan J U D G M E N T
The present second appeal has been brought by the second defendant, aggrieved by the judgment and decree passed by the learned Subordinate Judge, Vellore, in A.S.No.30 of 2006, dated 01.12.2006, in and by which, the judgment and decree passed by the learned Principal District Munsif, Vellore, in O.S.No.329 of 1996, dated 19.01.2006, was reversed.
2. This Court, at the time of entertaining the second appeal, framed the following substantial questions of law;-
"(i) Whether the lower appellate Court is correct in law in holding that the father of the appellant is competent to enter into an agreement of sale even though the property was purchased by his wife under Ex.B1, sale deed, dated 07.01.1949, and that she died prior to the Hindu Succession Act, 1956, coming into force?
(ii) Whether the lower appellate Court is correct in law in holding that the respondents had complied with Section 16 of the Specific Relief Act?
(iii) Whether the lower appellate Court is correct in law in arriving at a finding that the father of the appellant established his possession by means of prescriptive title through revenue records?"
3. Brief facts leading to the filing of the second appeal are given as under:-
The suit property admittedly belongs to the first defendant's wife. Whileso, the first defendant-Late Subramani, father of second defendant agreed to sell the suit property by reaching an agreement dated 26.10.1975, with the first plaintiff for a sum of Rs.20,000/- and also said to have received a sum of Rs.15,000/-. In the said agreement it was also agreed that the plaintiff should pay the balance consideration of Rs.5,000/- within a period of 10 years from the date of the agreement dated 26.10.1975, and complete the same on his expenses. It was also further stated that when the plaintiff, after the agreement dated 26.10.1975, has shown his readiness and willingness to perform his part of contract, the defendants were unwilling to execute after receiving the balance consideration of Rs.5,000/-. As a result, the plaintiff issued a notice, dated 11.06.1984, calling upon the first defendant to execute the sale deed, after receiving the balance sale consideration. Subsequently, a reply notice was also sent through his lawyer, denying the contents found in the notice, dated 11.06.1984. In view of the refusal on behalf of the defendant to fulfill their part of contract as mentioned in the sale agreement dated 26.10.1975, the plaintiff was compelled to file the suit for specific performance of the contract of sale agreement dated 26.10.1975, with a direction to execute conveyance and get it registered and on the failure thereof, a further direction is sought for to execute the sale deed according to the law.
4. The defendant/appellant herein, by filing a written statement, has stated that the sale agreement dated 26.10.1975, is false, fraudulent and created document and they also denied the fact that they ever agreed to sell the suit property mentioned in the plaint and further denied the receipt of Rs.15,000/-, towards sale consideration. When there was a specific averment made in the written statement to the extent that there was no such agreement, the matter was put to trial. Even before filing the suit by the plaintiffs, the defendant also filed a suit for declaration of title in O.S.No.1043 of 1985, and the same was subsequently transferred to Vellore Sub Court and renumbered as O.S.No.168 of 1997. In view of these two suits filed by the plaintiffs and the defendants, the trial Court took up both the suits together for rendering a common judgment. The trial court, after considering the case of both sides, decreed the suit for declaration of title in O.S.No.168 of 1997, in favour of the defendant/appellant herein. In respect of the suit filed by the plaintiffs/respondents herein in O.S.No.329 of 1996, seeking for a specific performance of a contract of sale agreement dated 26.10.1975, the trial Court dismissed the suit, giving a finding that the plaintiffs/respondents herein have failed to establish their case for passing decree for specific performance of sale agreement dated 26.10.1975.
5. Aggrieved by the judgment and decree passed by the learned trial Court, two appeals were filed by the respondents herein in A.S.Nos.29 and 30 of 2006. Learned first appellate Court, while decreeing the A.S.No.30 of 2006 in favour of them, dismissed the appeal filed in A.S.No.29 of 2006. As against the judgment and decree passed by the learned first appellate Court in A.S.No.30 of 2006, reversing the judgment and decree passed in O.S.No.329 of 1996, by granting decree for specific performance, the present second appeal has been filed by the defendants/appellant herein.
6. Learned counsel appearing for the appellant submitted that when the respondents, at no point of time, have taken any plea either in the written statement or before the trial Court during the course of trial, the plea of adverse possession in respect of the suit property by Late Subramani-first defendant, husband of Late Govindammal, it is not open to the first appellate Court to grant a decree for specific performance. It was also further submitted that when there was no whisper of any plea either in the averment or in the evidence setting up a plea of adverse possession by Late Subramani, father of the appellant herein, in respect of the suit property, the first appellate Court, by travelling beyond the pleading, has erroneously upset the judgment and decree passed by the learned trial Court.
7. It was also further contended that when there was no tangible evidence produced by the plaintiffs/respondents herein to prove the possession of the plaintiffs, after the alleged agreement dated 26.10.1975, the learned first appellate Court, finding clearly that the father of the present appellant, namely, Late Subramani, has got no alienable right in the suit property, ought not to have granted the decree for specific performance.
8. Finally, it was also contended that when there has been a decree and judgment giving a categorical declaration of title in favour of the appellant in respect of the suit property in O.S.No.168 of 1997, as confirmed by the learned first appellate Court in A.S.No.29 of 2006, it goes without saying that the second defendant/appellant herein is the absolute owner of the suit property. Therefore, when the plaintiffs/respondents herein have miserably failed to challenge the findings rendered by the Courts below on the question of title of the suit property of the appellant herein, the decree for specific performance erroneously granted by the learned first appellate Court is not legally enforceable. On that basis, he prayed for setting aside the judgment and decree passed by the learned first appellate Court.
9. Per contra, learned counsel appearing for the plaintiffs/respondents herein submitted that though the first plaintiff and the first defendant are own brothers, the appellant's father Late Subramani, at the time of executing the sale agreement dated 26.10.1975, has agreed to sell the property, by saying that the suit property belongs to him, namely, Late Subramani, brother of the first plaintiff, on the pretext that Late Subramani has been paying the kist and other Government taxes to the revenue department, by giving an impression that the suit property belongs to the first defendant. Beyond this impression, even in the sale agreement dated 26.10.1975, the first defendant in O.S.No.329 of 1996 filed by the plaintiffs/respondents herein, has specifically mentioned that Late Subramani is the owner of the suit property. Further, it is specifically mentioned in the sale agreement that the suit property purchased only from the earnings of Late Subramani.
10. That apart, when the plaintiffs/respondents herein after agreeing to purchase the suit property for a sum of Rs.20,000/-, has also admittedly paid a sum of Rs.15,000/-, on the date of execution of sale agreement dated 26.10.1975. Since the first plaintiff and the first defendant were brothers, the time for executing the sale agreement was fixed, namely, 10 years. After executing the sale agreement, even after the payment of 3/4th of the sale consideration, when the defendants refused to come forward to fulfill the rest of the terms and conditions mentioned in the sale agreement dated 26.10.1975, the plaintiffs/respondents herein by issuing a notice dated 11.06.1984, called upon the first defendant to execute the sale deed after receiving the balance sale consideration. On receipt of the said notice, a reply notice was also sent by the first defendant on 05.07.1984, denying the execution and also the payment of Rs.15,000/-. Under these circumstances, a suit was filed on the file of the District Munsif Court, Vellore. Though learned trial Court has dismissed the suit, the learned first appellate Court, by looking into the evidence adduced by the parties, has rightly passed the decree for specific performance directing the appellant herein to execute the sale deed on receiving the balance consideration, by giving a specific finding in favour of the plaintiffs/respondents herein . Therefore, on that basis, he prayed for dismissal of the present second appeal.
11. Heard the learned counsel appearing on either side and perused the materials available on record.
12. It is seen that the present appellant in the year 1985 filed a suit in O.S.No.1043 of 1985 for declaration of title of the suit land admeasuring 5.01 acres. The said suit was subsequently transferred and renumbered as O.S.No.168 of 1997. During the pendency of the suit, the appellant's father Late Subramani and first plaintiff, Late K.Vinayakam, said to have entered into an agreement dated 26.10.1975, for selling the suit property. In view of the pendency of these two suits filed by the plaintiffs and the defendants, the trial Court took up both the suits and after considering the case of either sides, by its common judgment and decree dated 19.01.2006, the trial Court, by looking into the legality of the issue raised by the defendant/appellant herein, has given a finding that the suit land was originally purchased in the name of the appellant's mother, Govindammal, by sale deed dated 07.01.1949, Ex.B1. The purchase of Govindammal has not been produced by the plaintiffs also. In fact, in Ex.A1, agreement dated 26.10.1975, it has been stated that the suit property, though it was purchased in the name of Govindammal, it was the first defendant, who alone gave the money for purchasing the same. By taking note of these facts, learned trail Court, by looking into the provisions of Hindu Succession Act, and by taking note of the death of Govindammal, it was on 27.01.1949, which was before the Hindu Succession Act came into force, with effect from 17.06.1956, by applying Section 7 of the Transfer of Property Act, has held that, as per Section 7 of the Transfer of Property Act, the first defendant-Late Subramani is not a competent person to dispose of the suit property on the principle that when the vendor has no tittle to alienate the property, purchaser cannot acquire any better title than the vendor had. Because, when the owner of the suit property Govindammal died on 27.01.1947 before the Hindu Succession Act came into force, the son of the Govindammal second defendant/appellant herein alone is entitled to the suit property, but not his father viz; the first defendant, who had wrongly executed the agreement.
13. In respect of the possession, though the learned trial Court has considered the revenue records, which are standing in the name of first defendant, it came to the conclusion that just because the revenue records are standing in the name of first defendant, it cannot be concluded that the first defendant has title over the suit property. On that basis, negativing the prayer for specific performance filed by the plaintiffs/respondents herein in O.S.No.329 of 1996, dismissed the same. While dismissing the suit filed by the plaintiffs, the learned first appellate Court also, by considering the case of the defendants, who were plaintiffs in O.S.No.168 of 1997, by giving a declaration of title in favour of the defendants, has made it clear that the entire property admeasuring 5.01 acres, which is also consisting of suit property for which the sale agreement dated 26.10.1975, was entered into, made the issue very clear that the second defendant/appellant herein is the absolute owner of the suit property. But, unfortunately, the respondents herein having been a party before the trial Court and also before the first appellate Court, even after coming to know that the first appellate Court has affirmed the judgment and decree passed by the trial Court in O.S.No.168 of 1997, miserably failed to challenge the said findings. Therefore, when there has been a judgment and decree in favour of the appellant herein, and the same has become final, holding against the respondents that the suit property belongs to the appellant, I do not think that the impugned judgment and decree passed by the learned first appellate Court can be sustained in law.
14. Apart from the general principles of law that the plaintiff must succeed on the strength of his own case and not on the basis of the weakness in the case of the defendant, in a suit for specific performance, the plaintiff is obviously required to prove that there is a definite contract which is capable of being specifically enforced. But, in the present case, the entire property, admeasuring 5.01 acres belonged to Late Govindammal, mother of the appellant herein. After her death in 1949, the same was devolved on her son, second defendant/appellant herein, by way of inheritance. Therefore, Late Subramani, father of the second defendant has no alienable right to enter into an agreement dated 26.10.1975, Ex.A1, with the plaintiffs/respondents herein. It is trite law that the son alone is entitled to succeed the property of his mother, but the husband has no right to succeed the property of his wife. In view of the settled legal principle, the sale agreement dated 26.10.1975, is not capable of being enforced in favour of the plaintiffs/respondents herein, the father of the appellant has no competency to enter into any sale agreement dated 26.10.1975, Ex.A1, as he had no saleable right on the suit property, by answering the substantial questions of law 1 and 2 in favour of the appellant that the conditions stipulated under Section 16 (b) of the Specific Relief Act has not been complied with, namely, that specific performance of a contract cannot be enforced in favour of person who has become in capable of performing the contract, this Court further holds that the reasonings and conclusions reached by the learned first appellate Court are not correct in law. Accordingly, third substantial question of law is also answered in favour of the appellant.
15. In the result, the second appeal is allowed. Consequently, the judgment and decree passed by the learned first appellate Court in A.S.No.30 of 2006, dated 01.12.2006, is set aside, and the judgment and decree passed by the learned trial Court in O.S.No.329 of 1996, dated 19.01.2006, is restored. No Costs.
03.04.2012.
Index : yes / no.
Internet : yes / no.
rkm To
1. The Sub-Court, Vellore.
2. The Principal District Munsif, Vellore.
T.RAJA, J.
rkm Second Appeal No.452 of 2007 03.04.2012.