Madras High Court
Poorani Ammal vs S.T.Prabhavathi on 8 March, 2012
Equivalent citations: AIR 2012 (NOC) 340 (MAD.)
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 08.03.2012 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.147 of 2009 Poorani Ammal .. Appellant vs. S.T.Prabhavathi .. Respondent Appeal filed as against the judgment and decree dated 13.11.2008 passed in O.S.No.59 of 2006 by the learned Principal District Judge, Cuddalore. For Appellant : Mr.K.S.Gnanasambandan For respondent : Mr.R.Gururaj JUDGMENT
This appeal is focussed at the instance of the defendant as against the judgment and decree dated 13.11.2008 passed by the learned Principal District Judge, Cuddalore in O.S.No.59 of 2006, which was filed by the plaintiff seeking specific performance of the contract to sell the suit property.
2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court.
3. Compendiously and concisely, the relevant facts, which are absolutely necessary and germane for the disposal of this appeal would run thus:
a] The respondent/plaintiff herein filed the suit seeking the specific performance of Ex.A1 the agreement to sell, which emerged between the plaintiff and the defendant on 10.03.2005 whereby, the latter, being the land owner agreed to sell in favour of the former the suit property for a total sale consideration of Rs.6,51,200/- and an advance amount of Rs.1,01,001/- was also paid by the plaintiff to the defendant. The time stipulated for performance was three months. The defendant subsequently was indulging in dilatory tactics, whereby a letter was sent by the plaintiff to the defendant expressing the plaintiff's readiness and willingness to perform her part of the contract and also calling upon the defendant to perform her part of the contract. Since there was no response, the suit was filed.
b] The defendants filed the written statement resisting the suit on various grounds, inter alia thus:
(i) The suit agreement to sell is a forged and fabricated one and the defendant, being a widow, never intended to sell her land at all.
(ii) The suit property was under valued in Ex.A1. She was in need of only a sum of Rs.50,000/-, for which, she approached one Rajendran of Kandanpalayam, who was a land broker. Taking undue advantage of the situation the said Rajendran obtained a few signatures of the defendant in blank papers as security for the due repayment of the loan amount, which he promised to obtain in her favour. Afterwards, she received only a sum of Rs.50,000/- as loan through Rajendran for which, she also paid interest for some time. Thereafter, when she came to know of the fact that the said Rajendran hood-winked her, she stopped paying the interest.
(iii) In respect of the co-operative loan availed by her deceased husband, she pledged her jewels and paid part of the loan dues. Subsequently, the loan itself was waived. She did not know, who the plaintiff was and in such a case, absolutely, there was no necessity for her to sell the land in favour of the plaintiff.
Accordingly, she prayed for the dismissal of the suit.
c] The trial court framed the relevant issues.
d] During trial, on the side of the plaintiff, she examined herself as P.W.1 along with P.Ws.2 to 4 and marked Exs.A1 to A6. On the side of the defendant, she examined herself as DW1 along with D.Ws.2 and 3 and Ex.B1 was marked and Exs.X1 and X2 the court documents were also marked.
e] Ultimately, the trial court decreed the suit.
4. Being aggrieved by and dissatisfied with the judgment and decree of the trial court, the defendant has preferred this appeal on various grounds.
5. The learned counsel for the appellant/defendant placing reliance on the grounds of appeal, advanced his arguments, a thumbnail sketch of the same would run thus:
(i) The trial court failed to take into consideration the defendant's documents in proper perspective but simply believed the case of the plaintiff for gospel truth and decreed it.
(ii) The plaintiff was admittedly residing in Chennai; whereas the suit property is situated in Kandrakottai village in Cuddalore District. There was absolutely no chance of the defendant knowing the plaintiff.
(iii) Ranganathan, the brother-in-law of the defendant had no role to play in allegedly bringing about Ex.A1, the agreement to sell.
(iv) The depositions of Ranganathan and the other witnesses on the defendant's side were not taken into consideration by the trial court. Absolutely, there is no rhyme or reason on the part of the plaintiff in allegedly drafting the letter Ex.A2 at Chennai and then posting it under Certificate of Posting at a place called Anguchettipalayam, which is comparatively very near to the residence of the defendant.
(v) There is nothing to indicate that the defendant was in receipt of any such notice. The plaintiff, with the help of her men in the Co-operative Bank collected some particulars and with that the documents were fabricated; but the trial court failed to take note of the same.
(vi) The alleged broker Rajendran was not examined on the plaintiff's side and as such, in the absence of such evidence, the trial court should have doubted the case of the plaintiff.
(vii) No issue was framed by the trial court relating to the readiness and willingness on the part of the plaintiff to perform her part of the contract, which is mandatory under Section 16 of the Specific Relief Act. The discretionary relief of Specific performance as per Section 20 of the Act, should not have been erercised by the trial court.
Accordingly, the learned counsel for the appellant/defendant would pray for setting aside the judgment and decree of the trial court and consequently for dismissing the original suit.
6. In a bid to make mincemeat and torpedo the arguments as put forth and set forth on the side of the appellant/defendant, the learned counsel for the respondent/plaintiff would advance his arguments, the gist and kernel of them would run thus:
(a) The appeal itself was not maintainable on the ground that the defendant admittedly sold the suit property pendente lite to one B.Sundararaj as per Ex.A6 dated 27.02.2008, which had the effect of the purchaser becoming the owner of the suit property as against the appellant herein and even the said purchaser's application in M.P.No.3 of 2009 in this appeal was dismissed by this court after hearing both sides and primarily on that ground itself appeal has to be dismissed.
(b) The prevaricative stands of the defendant got exposed during trial. In the written statement, the defendant had tried to project as though one Rajendran obtained the signatures of the defendant in blank papers and that Ex.A1 is out and out a forged document. However, during trial it is the case of DW1 (defendant) that those papers were obtained by the plaintiff from Rajendran and she fabricated the Ex.A1 and filed the suit.
(c) The plea of forgery is found to be totally false and mendacious and the trial court appropriately and appositely rejected the plea of the defendant, warranting no interference in this appeal.
(d) The plaintiff for the purpose of establishing an old age home, intended to purchase the suit property, which is situated adjacent to Pennaiyar in a serene atmosphere and in that regard with the help of DW2 Ranganathan, the brother-in-law of the defendant, the plaintiff contacted the defendant and whereupon Ex.A1, the agreement to sell emerged.
(e) The defendant was in dire need of selling the suit property because an award was passed by the Co-operative society during the year 2001 as evidenced by Ex.X1 and for the purpose of saving her own interest, so to say, instead of allowing the suit property to be sold for a song by the Co-operative society, she wanted it to be sold by her to the plaintiff and pay off the debt and to take the remaining sale consideration for herself.
(f) It is too late in the day on the part of the defendant to contend as though she had no necessity to sell the suit property at all.
(g) The records would reveal that at the relevant time, so to say, after entering into an agreement to sell as per Ex.A1, there was an election manifesto by a political party to the effect that the Co-operative loans would be waived, if they were voted to power and as such, she after entering into Ex.A1, hesitated to come forward to sell the suit property to the plaintiff. Fortunately, for her, the entire loan was also waived and thereafter, she became stubborn in her stand that the property should not be sold by her in favour of the plaintiff and as such the entire factual matrix should be considered for deciding the conduct of the defendant.
(h) The plaintiff has been ready and willing to perform her part of the contract and absolutely, no fraud is involved in this case. Ranganthan, who is admittedly, the close relative of the defendant, so to say, the brother-in-law of the defendant signed Ex.A1 as a witness and the signatures of both the defendant and the said Ranganathan are the admitted ones. In such a case, the trial court correctly appreciated the evidence in proper perspective and decided the lis, warranting no interference in the appeal.
Accordingly, he would pray for the dismissal of the appeal.
7. The points for consideration are as under:
1. Whether the defendant has no locus standi to file the appeal in view of Ex.A6 the sale deed, which was executed by her pendente lite in favour of a third party namely Sundarraj?
2. Whether the trial court was justified in decreeing the suit despite evidence adduced on the side of the defendant disputing the genuineness of Ex.A1?
3. Whether the non-framing of an issue by the trial court relating to the readiness and willingness on the part of the plaintiff in performing her part of the contract is fatal to the judgment rendered by it?
4. Whether there is any perversity or illegality in the judgment and decree of the trial court?
8. Heard both sides.
Point No.1:
9. Indubitably and indisputably, pending the original suit itself, as per Ex.A6, the defendant did choose to sell the suit property in favour of a third party. Ex.A6 was marked during trial. The contention on the side of the plaintiff is that on selling the suit property itself by her, she lost her locus standi to file this appeal.
10. Whereas the learned counsel for the defendant would contend that such a broad proposition cannot be laid down as law for the reason that despite such alienation by the defendant, her right to challenge Ex.A1 and the readiness and willingness on the part of the plaintiff to perform her part of the contract subsists and furthermore, the rights as it stood as on the date of the filing of the suit should be taken into account and the court is always having the power to mould the relief and grant it.
11. Trite the proposition of law is that if a property is sold by the land owner to a third party, after entering into an agreement to sell, the land owner/defendant in the suit could only resist the suit on the ground that the agreement to sell was bad in law and that the plaintiff was not ready and willing to perform her part of the contract and the third party purchaser cannot set up such pleas.
12. The learned counsel for the plaintiff would submit that had the third party purchaser been added as one of the parties to the lis, then in that case to that much extent possible, the defendant-land owner can challenge the agreement to sell and also contend that the plaintiff was not ready and willing to perform her part of the contract and the third party purchaser as a newly added party cannot take such pleas, which only his vendor could take. Wherefore, in my considered opinion, a broad proposition cannot be laid down as law that pending litigation, if the defendant sells away the suit property to third party, the defendants will lose their right of defence as well as the right of appeal.
13. In this connection, I would like to cite the decision of the Hon'ble Apex Court reported in (2011) 2 MLJ 317 (SC) [ T.G.Ashok Kumar vs. Govindammal and another]. Certain excerpts from it would run thus:
"9. ................ In Jayaram Mudaliar vs. Ayyasami AIR 1973 569 this Court held that the purpose of Section 52 of the Act is not to defeat any just and equitable claim, but only to subject them to the authority of the Court which is dealing with the property to which claims are put forward. This Court in Hardev Singh v. Gurmail Singh (2007) 2 SCC 404: (2007) 3 MLJ 44 held that Section 52 of the Act does not declare a pendente lite transfer by a party to the suit as void or illegal, but only makes the pendente lite purchaser bound by the decision in the pending litigation.
10. The principle underlying Section 52 is clear. If during the pendency of any suit in a Court of competent jurisdiction which is not collusive, in which any right of an immovable property is directly and specifically in question, such property cannot be transferred by any party to the suit so as to affect the rights of any other party to the suit under any decree that may be made in such suit. If ultimately the title of the pendente lite transferor is upheld in regard to the transferred property, the transferee's title will not be affected. On the other hand, if the title of the pendente lite transferor is recognized or accepted only in regard to a part of the transferred property, then the transferee's title will be saved only in regard to that extent and the transfer in regard to the remaining portion of the transferred property to which the transferor is found not entitle, will be invalid and the transferee will not get any right, title or interest in that portion. If the property transferred pendente lite, is allotted in entirely to some other party or parties or if the transferor is held to have no right or title in that property, the transferee will not have any title to the property. Where a co-owner alienates a property or a portion of a property representing to be the absolute owner, equities can no doubt be adjusted while making the division during the final decree proceedings, if feasible and practical (that is without causing loss or hardship or inconvenience to other parties) by allotting the property or portion of the property transferred pendente lite, to the share of the transferor, so that the bona fide transferee's right and title are saved fully or partially.
11. In this case, a suit for partition filed by the first respondent against the second respondent in the year 1985 which included the suit property, was pending in a court of competent jurisdiction as on the date of sale (11.4.1990) by the second respondent in favour of the appellant. The partition suit was not collusive. Having regard to Section 52 of the Act, the sale by the second respondent in favour of the appellant did not in any way affect the right of the first respondent (plaintiff in the partition suit) or the decree made in her favour in the said partition suit. It is thus evident that the sale by second respondent in favour of the appellant though not void, did not bind the first respondent who was the plaintiff in the partition suit. On the other hand, the sale in favour of appellant was subject to the right declared or recognized in favour of the first respondent-plaintiff under the decree passed in the pending partition suit. The sale pendente lite would therefore be subject to the decree in the partition suit. In the final decree passed in the partition suit, the major portion of the suit property shown by the letters, B,C, D,E,F,G,H, I, B in the Commissioner's sketch (Exhibit C-5) was allotted to the share of the first respondent and to that extent, the sale in favour of the appellant would be ineffective. But, in regard to the remaining portion of the suit property namely the portion shown by the letters A, B,I, H, A in the Commissioner's sketch (Exhibit C-) which stood allotted to the share of the second respondent in the final decree in the partition suit, the sale by the second respondent in favour of the appellant is effective, valid and binding on the second respondent and to that extent, the appellant is entitled to a declaration of title and consequential injunction.
12. We are therefore, of the view that the suit ought not to have been dismissed in entirety even if the sale by the second respondent in favour of the appellant on 11.4.1990 was hit by the doctrine of lis pendens. The second respondent cannot avoid the sale made by her on the ground that she was held to be not the exclusive owner, in the pending partition suit. Therefore, the courts below ought to have decreed the appellant's suit in part, in regard to the portion of the suit property that fell to the share of second respondent instead of dismissing the suit."
A bare perusal of the above precedent would exemplify and demonstrate, highlight and spotlight that even a pendente lite purchaser has got certain rights, but his rights are subject to the ultimate decision in the suit and he cannot take any new plea quite antithetical to the plea taken by his vendor. The land owner, being the defendant alone can challenge the agreement and also the readiness and willingness on the part of the plaintiff in performing her part of the contract. A fortiori, the appeal cannot simply be dismissed on the sole ground that the appellant/defendant as per Ex.A6 had sold the suit property pending litigation.
14. Accordingly, the point No.1 is decided in favour of the appellant.
15. The other remaining points are taken together for discussion as they are inter-linked and inter-woven with each other.
16. A plain wading through the evidence both oral and documentary would proclaim and demonstrate, display and evidence that the plaintiff approached the court with a clear case; whereas the defendant failed to create an impression in the mind of the court that her case is a consistent and logical one. An excerpt from the written statement would run thus:
"There is no connection between the plaintiff and defendant at any point of time. The defendant is in urgent need of money and hence she approached Rajendran of Kandhanpalayam who is land broker and also arranging loans for usurious interest of 36%. In consequences of that the said broker Rajendran has stated that he knows financiers who is lending money on interest at 36% p.a for which he require signature of this defendant in blank stamp papers as security for due repayment of the loan amount. Due to urgency this defendant has got no other alternative except to accept the condition of the said Rajendran and in consequence of that the said Rajendran has obtained signature of this defendant in blank stamp papers and other papers towards security in order to arrange loan to a extent of Rs.50,000/- and also in order to use it as security for the proposed loan. ...........................................................
..............................The mere seeing of the sale agreement will clearly show that it was a forged and concocted document. As already stated there is no connection between the plaintiff and the defendant and the defendant did not seen the plaintiff and she never executed any sale agreement as alleged and there is no necessity for this defendant to sell the property that too for the very meagre amount of Rs.6,51,200/- when the property worth about more than Rs.15 lakhs"...............
A bare perusal of it would clearly exemplify and connote that as per her contention in the written statement, she had no connection with the plaintiff, but one Rajendran only obtained a few signatures of the defendant in blank papers under the promise that he would secure loan in her favour. Whereas DW1(defendant) in her deposition, stated thus:
VERNACULAR (TAMIL) PORTION DELETED During cross-examination DW1 stated thus:
VERNACULAR (TAMIL) PORTION DELETED As such, a mere comparison of the aforesaid two excerpts would demonstrate and display that the defendant had no consistent case of her own. During trial, virtually she had given a go-bye to her stand in the written statement. The defendant's contention that Ranganathan, her brother-in-law (DW2) had nothing to do with the alleged agreement to sell Ex.A1 is a big pill to swallow. Ranganathan in order to blindly support his relative DW1 (the defendant) would state as though in blank papers his signature was obtained. Preponderance of probabilities would govern the adjudication in civil cases. "Truth will out" is the popular adage. D1 signed Ex.A1, which comprises of three sheets of which, the first and second sheets are embossed stamp papers, wherein D1 signed at the end and there is no artificial adjustment of the typed versions. Similarly, in page No.3, some what in the middle the signature of the defendant is found and there also I could see no abnormal adjustment of the typed versions. Beneath the signature of the defendant, I could see considerable gap and the word, "witnesses" in Tamil is found typed. Thereafter, the admitted signature of Ranganathan is found and the plaintiff on her part signed Ex.A1 and the plaintiff's husband signed it as one other witness along with the said Ranganathan. The licensed scribe also signed Ex.A1. As such, the trial court taking into consideration the depositions of the plaintiff and the witness on her side, gave a detailed finding that there was nothing to doubt about the genuineness of Ex.A1. The trial court is the best court in giving a finding on fact, because it had the opportunity of observing the demeanor of the witness. No doubt, the first appellate court, being the last court of facts, can very well once again scrutinize the evidence. In the wake of perversity or illegality in the appreciation of evidence by the trial court the first appellate court can for reasons to be recorded upset the findings of the trial court. However, here in the wake of the prevaricative stands of DW1 and DW2, I am of the view that no such interference is warranted. Absolutely, there is no perversity or illegality in the findings given by the trial court relating to Ex.A1.
17. The learned counsel for the appellant/defendant would contend that no lawyer's notice was issued before instituting the suit; but only a letter in the form of Ex.A2 was alleged to have been despatched after being drafted in Chennai but posting it at Anguchettipalayam.
18. I could see no infirmity in it. A person residing in Chennai can also for the purpose of speedy and prompt despatch of the letter can very well post that letter at a post office nearby the place of the residence of the defendant. The Certificate of Posting would attract the presumption under the clauses as to Illustrations (e) and (f) to Section 114 of the Indian Evidence Act and it is extracted here under for ready reference:
"114. Court may presume existence of certain facts The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case, the court may presume -
a) ......
b) ....... c) ....... d) ....... e) that judicial and official acts have been regularly performed.
f) that the common course of business has been followed in particular cases;
g) .........
h) ........
i) ........
But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it :-
As to illustration (a) ........
As to illustration (b) ........
As to illustration (c) ........
As to illustration (d) ........
As to illustration (e) A judicial act, the regularity of which is in question, was performed under exceptional circumstances;
As to illustration (f) The question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;"
19. The learned counsel for the plaintiff also in his argument highlighted the probabilities in favour of his client. Ex.X1, which was produced by PW4, the official would unambiguously and unequivocally highlight the point that the award was passed by the authority under the Co-operative Societies Act, during the year 2001, in connection with the loan availed by the defendant's deceased husband. In fact, it is also an indubitable fact that the suit property itself was offered by the defendant as security for the prompt discharge of the said loan. As on the date of emergence of Ex.A6, the said award remained undischarged.
20. A cumulative consideration of the evidence would convey and portray that the case of the plaintiff can be believed for the reason that the defendant was in dire need of money for discharging the said dues under the award as otherwise, the co-operative bank might have proceeded against the suit property and it even might have been sold for a song.
21. The contention on the side of the defendant that there had been no necessity at all for her to sell the property, is totally antithetical to the circumstances, which bespeak and betoken the contrary. Had the loan dues been discharged before the emergence of Ex.A1, then the matter would have been different; but the loan was ultimately waived by the Government long after the emergence of Ex.A1, the agreement to sell. The plea on the side of the defendant that the sale consideration cited in Ex.A1 is very low, fails to carry conviction with this court, in view of the clinching argument put forth on the side of the plaintiff/respondent, by placing reliance on Ex.A6, the sale deed, which would evince and evidence that pendente lite the defendant sold the suit property for Rs.1,61,150/-; but in Ex.A1 the suit property was agreed to be sold for a sum of Rs.6,51,200/-. As such, the contention as put forth on the side of the defendant that the suit property was undervalued in Ex.A6 is nothing but a nancy story dished out purely for the purpose of wriggling her out of her liability to sell the property in favour of the plaintiff.
22. The contention as put forth on the side of the defendant that the said Rajendran, the land broker was not examined on the side of the plaintiff is not tenable for the reason that it is not the case of the plaintiff that Rajendran had any role to play in the matter.
23. I recollect and call up the following maxims:
(i) Affirmantis est probare [He who affirms must prove]
(ii) Affirmanti non neganti incumbit probatio: The burden of proof lies upon him who asserts and not upon him who denies.
Here the onus of proof is ambulatory and not static. It is the defendant, who raised the plea that Rajendran alone obtained the signatures of the defendant in blank papers and used them by handing over them to the plaintiff and in such a case, the burden was on the defendant to summon Rajendran. However, she would try to absolve herself of her liability by pointing out unsatisfactorily that the whereabouts of Rajendran were not known to her. By stating so, the defendant cannot try to fob off her burden in proving her case to the plaintiff's side, when it is clearly found spelt out in the evidence that Rajendran belonged to Kandanpalayam. Unarguably and unassailably, DW2 Ranganathan happened to be the person, who was interested in the welfare of DW1 (defendant) and that being the case, even by phantasmagorical thoughts, it cannot be visualised that Ranganthan himself would have ventured to collude with the plaintiff and beguiled, bamboozled or cheated the defendant.
24. The contention on the side of the defendant that the details relating to the co-operative loan were known to the plaintiff and that is indicative of the fact that the plaintiff had some person in the bank to leak out the details relating to documents etc. Even for argument's sake, it is taken that the plaintiff managed to gather some particulars about the loan as well as the said award, nevertheless, I could see that those features are all not germane for dismissing the suit of the plaintiff seeking specific performance.
25. The learned counsel for the defendant would try to project a case as though the defendant pledged her own jewels and obtained money and made part payment towards said Bank loan. Whereas the learned counsel for the plaintiff/respondent would submit that the evidence adduced on the side of the defendant was to the effect that Ranganathan's jewels were pledged. I am of the view that those are all not germane for deciding this case, because simply pledging of certain jewels and raising some money and paying the dues towards Co-operative Bank, subsequent to the emergence of Ex.A6, will not lead to any presumption that Ex.A1 is a forged and fabricated one. In fact, the plaintiff consistently expressed her desire to get the sale deed executed in her favour, which is writ large. The trial court even though not framed any specific issue on that point, at para No.40 of its judgment, dealt with those points and held that the plaintiff had been ready and willing to perform her part of the contract.
26. At this juncture, I would like to refer to the following decisions cited on the side of the plaintiff/respondent as well as the defendant/appellant.
Decisions cited on the side of the plaintiff/respondent:
(i) AIR 1956 SC 593 [ Nagubai Ammal and others vs. B.Shama Rao and others]
(ii) AIR 1965 SC 1405 [Mademsetty Satyanarayana vs. g.Yelloji Rao and others]
(iii) AIR 1979 SC 1241 [ Prakash Chandra vs. Angadlal and others]
(iv) (2004)2 SCC 283 [ Krishi Utpadan Mandi Samiti Sahaswan, District Badaun through its Secretary vs. Bipin Kumar and another]
(v) 2006-1-L.W.614 (SC) [ S.Brahmanand and Others vs. K.R.Muthugopal (D) and others]
(vi) 2008-1-L.W.801 (SC) [ Balasaheb Dayandeo Naik (Dead) through LRs. And others vs. Appasaheb Dattatraya Pawar]
(vii) (2008) 3 MLJ 951 (SC) [ Silvey and others vs. Arun Varghese and another]
(viii) 2008-4-L.W.111 (SC) [ Gurdial Kaur (D) Through Lrs. vs. Piara Singh (D) Through Lrs.] Decisions cited on the side of the defendant/appellant:
(i) AIR 1977 Madras 83 (Division Bench of this court) [ Manickathammal and others vs. Nallasami Pillai and others]
(ii) 1997 (I) CTC 360 (Madras) [ Seeni Ammal vs. Veerayee Ammal]
(iii) AIR 2001 Madhya Pradesh 10 [ Sirmul vs. Smt.Annapurna Devi]
(iv) (2010) 2 MLJ 675 (Madurai Bench of Madras High Court) [ Bhaskaran Nadar (died) and others vs. Kesavan Nadar (died) and others] In addition to that, I would like to cite the following two decisions of the Honourable Apex Court emerged under Sections 16 read with Section 20 of the Specific Relief Act:
(i) 2010(10) SCC 512 [Man Kaur (Dead) By L.Rs. v. Hartar Singh Sangha]; certain excerpts from it would run thus:
"40. This contention has no merit. There are two distinct issues. The first issue is the breach by the defendant vendor which gives a cause of action to the plaintiff to file a suit for specific performance. The second issue relates to the personal bar to enforcement of a specific performance by persons enumerated in Section 16 of the Act. A person who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him (other than the terms the performance of which has been prevented or waived by the defendant) is barred from claiming specific performance. Therefore, even assuming that the defendant had committed breach, if the plaintiff fails to aver in the plaint or prove that he was always ready and willing to perform the essential terms of contract which are required to be performed by him (other than the terms the performance of which has been prevented or waived by the plaintiff), there is a bar to specific performance in his favour. Therefore, the assumption of the respondent that readiness and willingness on the part of the plaintiff is something which need not be proved, if the plaintiff is able to establish that the defendant refused to execute the sale deed and thereby committed breach, is not correct. Let us give an example. Take a case where there is a contract for sale for a consideration of Rs.10 lakhs and earnest money of Rs.1 lakh was paid and the vendor wrongly refuses to execute the sale deed unless the purchaser is ready to pay Rs.15 lakhs. In such a case there is a clear breach by the defendant. But in that case, if the plaintiff did not have the balance Rs.9 lakhs (and the money required for stamp duty and registration) or the capacity to arrange and pay such money, when the contract has to be performed, the plaintiff will not be entitled to specific performance, even if he proves breach by the defendant, as he was not "ready and willing" to perform his obligations."
(ii) (2011) 1 SUPREME COURT CASES 429 J.P.BUILDERS AND ANOTHER V. A.RAMADAS RAO AND ANOTHER would run thus:
"27. It is settled law that even in the absence of specific plea by the opposite party, it is the mandate of the statute that the plaintiff has to comply with Section 16(c) of the Specific Relief Act and when there is non-compliance with this statutory mandate, the Court is not bound to grant specific performance and is left with no other alternative but to dismiss the suit. It is also clear that readiness to perform must be established throughout the relevant points of time. "Readiness and willingness" to perform the part of the contract has to be determined/ascertained from the conduct of the parties."
Trite, it is that the recent decisions should be followed by the court. In that connection, my mind is reminiscent and redolent of the following maxim:
judicia posteriora sunt in lege fortiora - The later decisions are stronger in law.
Accordingly, the recent precedents of the Hon'ble Apex Court would amply make the point clear that it is the duty of the court to see as to whether the plaintiff, who seeks specific performance has been sedulously ready and willing to perform his/her part of the contract and that he/she is not suffering from any personal bar as contemplated under Section 16 of the Specific Relief Act and as per Section 20 of the Specific Relief Act, the court should exercise its judicial discretion appropriately before granting specific performance.
27. Here, my discussion supra relating to oral and documentary evidence would clearly display and connote that the defendant has been bent upon wriggling out of her liability by taking prevaricative stands and had driven the plaintiff to cleave through the adamantine walls of difficulties and discomfitures erected by the defendant in the litigative process; on the other hand, the plaintiff has been consistent in her stand in getting the sale deed executed in her favour and nothing has been highlighted that she was guilty of laches or fraud. In such a case, the trial court correctly granted the relief of specific performance, warranting no interference in this appeal.
28. The learned counsel for the plaintiff also cited a few decisions relating to limitation point as under:
(i) AIR 1967 SC 278 [ Ramprasad Dagaduram vs. Vijaykumar Motilal Hirakhanwala and others]
(ii) AIR 1973 SC 559 [ Dr.Jiwal Lal and others vs. Brij Mohan Mehra and another]
(iii) 2005-1-L.W.147 (SC) [ Smt.Swarnam Ramachandran and another vs. Aravacode Chakungal Jayapalan] which in my opinion, are not relevant to this case. Here, the limitation point does not arise at all. The agreement to sell emerged on 24.05.2005; even before the expiry of the stipulated period of performance, Ex.A2 notice was sent seeking specific performance, which shows her readiness and willingness to perform her part of the contract eagerly and the suit itself was filed on 23.06.2006, so to say, within a short span of time. Hence, I am of the considered view that absolutely, there is no merit in this appeal.
29. The learned counsel for the plaintiff also would correctly highlight the conduct of the defendant. I hark back to the maxim Acta exteriora indicant interiora secreta Outward acts indicate the thoughts hidden within. The overt acts of the defendant exposed her mendacity. During the pendency of the suit itself, an application in I.A.No.21 of 2008 was filed by the plaintiff so as to restrain the defendant from alienating the suit property; for which counter was filed; whereupon the trial court dismissed the application; quite strangely and that too, shockingly and surprisingly, within two months thereafter the defendant alienated the suit property, which evidenced and demonstrated that the defendant had least respect for the court and in such a case, the court cannot show any mercy or indulgence towards her.
30. Not to put too fine a point as it is not that only the plaintiff should be sincere in her pleadings and conduct in seeking specific performance; but the same rule applies also to the defendant, who cannot simply give a go-bye to the laws governing the conduct of the litigant in the litigative process. Here, no such blemish can be attributed to the plaintiff; per contra, the defendant by her own conduct proclaimed and expatiated that her conduct in alienating the suit property notwithstanding she having filed a counter before the trial court to the effect that she would not alienate the property was antithetical to her claim of innocence and fairness in the litigative process and even before as well, to get any remedy at the hands of the court. It is also on record that pending appeal, M.P.No.3 of 2009 in this appeal was filed by the purchaser to get himself impleaded but the said application was dismissed. I am of the view that pendente lite purchaser is bound by the ultimate decision of the court in the appeal.
31. Accordingly, Point No.:1 The defendant had locus standi to file the appeal inspite of Ex.A6 the sale deed, which was executed by her pendente lite in favour of a third party namely Sundarraj.
Point No.:2 The trial court was justified in decreeing the suit despite evidence being adduced on the side of the defendant disputing the genuineness of Ex.A1.
Point No.:3 The non-framing of an issue by the trial court relating to the readiness and willingness on the part of the plaintiff in performing her part of the contract is not fatal to the judgment rendered by it.
Point No.:4 There is no perversity or illegality in the judgment rendered by the trial court.
32. In the result, there is no merit in this appeal; accordingly, the same is dismissed. However, there shall be no order as to costs.
vj2 To The Principal District Judge, Cuddalore