Madras High Court
P.Velappan vs Ganapathyappan on 29 August, 2012
Author: S.Vimala
Bench: S.Vimala
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 29.08.2012
CORAM
THE HONOURABLE Mrs. JUSTICE. S.VIMALA
Second Appeal No.870 of 2002
P.Velappan .... Appellant
Vs.
1. Ganapathyappan
2. Smt. Poovathal
3. Deepa
4. Selvi
(R-3 & R-4 declared as majors and R-2 discharged from
her guardian ship, vide order of Court, dated 12.04.2012
made in CMP Nos.182 and 183 of 2012 in
S.A.No.870 of 2002) .... Respondents
Second Appeal filed under Section 100 of the Civil Procedure Code against the judgment and decree, dated 27.08.2001, made in A.S.No.74 of 2001 on the file of the Principal District Judge, Coimbatore, confirming the judgment and decree, dated 26.10.1999 made in O.S.No.351 of 1989 on the file of the Sub Court, Thiruppur.
For Appellant : Mr. A.Thiagarajan
For Respondents : Mr. K.Sivasubramanian, for R-1
Mr. T.M.Hariharan, for R-2
Mr. A.Anbarasu, for R-3 & R-4
- - -
J U D G M E N T
The plaintiff / appellant has filed the second appeal as against the concurrent dismissal of his suit for specific performance, raising the substantial question of law, which was reformulated during the hearing of arguments.
"1. In respect of the sale agreement executed by the father which covers the share of the sons also, whether there is an impediment for the enforcement of the sale agreement atleast to the extent of vendor's share even assuming that he has no authority, express or implied, to sell the share of the sons?
2. When it is proved that the sale is neither on behalf of the minor nor for legal necessity, whether the sale agreement could be enforced as against the vendor to the extent of the vendor's 1/3rd share alone?"
2. The plaintiff filed the suit for specific performance seeking to enforce the sale agreement, dated 14.07.1989, for a sum of Rs.47,000/- in respect of the suit property measuring an extent of 1.50 acres in R.S.No.320/A, situated at Ichipatti Village, Palladam Taluk. The first defendant executed the sale agreement on the premise that he is the owner of the property. The sale agreement did not specifically state whether the sale agreement was executed on behalf of and for the benefit of the minors also. The first defendant, even though received a sum of Rs.6,000/- as advance, failed to execute the sale deed and that compelled the plaintiff / appellant to file the suit, after issuing the suit notice.
3. The suit claim was resisted by the first defendant on the following contentions:
(a) That the suit agreement is forged and fabricated and that he did not execute any such sale agreement. He would not have agreed for selling the property for a paltry sum of Rs.47,000/- when the worth of the property was Rs.3,00,000/-.
(b) Over-powering the first defendant, by taking advantage of the first defendant's addiction for alcohol forcibly, through threat and intimidation, the plaintiff obtained the signature of the first defendant in some blank papers and stamp papers and concocted the suit agreement.
4. The second defendant (the wife of the first defendant) opposed the claim on the following contentions:-
(i) The alcoholic addiction and consequent failure in taking care of the family of the first defendant had been exploited by the plaintiff in obtaining the sale agreement. Apart from that, the strained relationship between defendants 1 and 2 seems to have played a crucial role.
(ii) The suit property is the ancestral property belonging to defendants 1, 3 and 4 in which the first defendant is only entitled to 1/3rd share. Therefore, the first defendant has no right to execute the sale agreement covering the entire property.
(iii) There was no legal necessity to sell the joint family property.
Defendants 3 and 4 were defended by the court guardian and he has raised the following issues, namely, the defendants, by birth, have become a coparcener in their own right and by virtue of Section 29 (A) of the Hindu Succession Act, defendants 3 and 4 are entitled to equal share in the property as that of sons and therefore the father has no right to execute the sale agreement.
5. After trial, the sale agreement was declared to be proved. But the trial court refused the enforcement of sale agreement on the ground that the defendants are having major share over the suit property.
6. Aggrieved over the dismissal of the suit, the plaintiff filed the appeal in A.S.No.74 of 2001.
7. The appellate court also declined the relief wrongly for wrong reasons. The appellate court has quoted the decision reported in 1988 (1) Law Weekly 216 (M.Selvaraj v. P.Kumaraiah and others) wherein, it was held that the plaintiff is not entitled to ask for a decree directing the defendants to execute a sale deed in respect of entirety of the property when minors' interest is involved and if at all a decree can be executed, it can be done, only in respect of undivided share of the executant provided he is willing to pay the entire sale consideration. Having extracted the relevant dictum, the appellate court did not grant the decree in respect of the share of atleast the executant even. As against this, the present appeal has been filed.
8. It is relevant to point out that the total extent of property covered in the sale agreement is 1.50 acres. If the first defendant is entitled to 1/3rd share, then the undivided 1/3rd share would be 0.50 acres. The remaining 2/3rd share would belong to defendants 3 and 4. Both the courts have declined the relief of specific performance, on the ground that the defendants 3 and 4 have the major share in the total extent of the property. This finding is unsustainable. The Court can refuse specific performance in a contract where the remaining part which is left unperformed forms part of considerable portion and the parties can execute sale only in respect of a fraction of a share. 1/3rd share cannot be claimed to be fraction of a share.
9. Whether the exercise of discretion on the above ground is valid exercise of discretion is the issue to be considered.
9.1. In a contract, when one party make default in performance, the other party can exercise the option to elect either to insist upon the actual performance of the contract or to obtain satisfaction for the non performance of the same. But, a perfect system of jurisprudence ought to enforce only the actual performance of the contract except where the circumstances makes such enforcement unnecessary or inexpedient.
9.2. The specific performance of the contract is its actual execution according to its stipulation and terms. Such actual execution is enforced under the equitable jurisdiction vested in the court.
9.3. Whether the discretion available to the Court is an unbridled /unbounded discretion of the court or whether it is circumscribed by the circumstances that alone should be considered while exercising the discretion to decree the specific performance?
9.4. Even though the jurisdiction to decree specific performance is discretionary, the discretion is not arbitrary, but, guided by judicial principles and capable of correction by a court of appeal. The cases in which court may properly exercise the jurisdiction, while refusing the relief of specific performance are catalogued in sub-section (2) which is supported by explanation (1) and (2) of Section 20.
10. The relief of specific performance is not automatic. The court exercises equity jurisdiction and therefore the court is bound by the principles of justice, equity and good conscience and has to act with fairness to both the parties. If the courts find that the conduct of the plaintiff himself is not good or not clear or has done some unjust work or has not come to the court with clean hands, then the court will not exercise its jurisdiction in favour of the plaintiff. Both the courts should have exercised the jurisdiction only keeping in mind those aspects.
11. Both the courts below, instead of commenting upon the conduct of the first defendant, has refused the relief of specific performance to the plaintiff whose conduct is not blameworthy. The legitimate claim of the plaintiff has been declined on an irrelevant consideration. The fact that defendants 3 and 4 are having major share in the property is not a relevant consideration for declining the relief of specific performance when the defendants 3 and 4 are the daughters of the first defendant and it would not have been difficult to effect partition between the father and daughters.
12. The lower courts failed to take note off the marathon efforts taken by the defendants in order to evade and escape from the performance based upon Ex.A-1-sale agreement. The first defendant himself has taken mutually destructive plea in the written statement where he has taken the plea of forgery as well as forcible execution of document. The plea of forgery and forcible execution will not reinforce with each other, but will repel each other. This plea itself will go to show that the intention of the first defendant is to cheat the plaintiff after having got the sale agreement executed in his favour. Added to that, he has also made the second defendant to raise a plea that the husband is a drunkard. Of course, the plea taken by the third and fourth defendants claiming absolute right under Section 29 (A) of the Hindu Succession Act is justified. But the fact remains that the first defendant has never whispered any word that the sale agreement is executed for and on behalf of defendants 3 and 4 also. When the first defendant has not indicated in the sale agreement that the agreement is for and on behalf the defendants 3 and 4 also, the agreement will not bind the defendants 3 and 4. Therefore, it is the duty of the first defendant to execute the sale deed in respect of his share alone. To this extent, plaintiff is entitled to the decree for specific performance.
13. The learned counsel for the appellant has relied upon the following decisions in order to support his contention that the plaintiff is entitled to a decree for specific performance to the extent of the first defendant's undivided 1/3rd share:-
(i) CDJ 2005 SC 476, (Surinder Singh v. Kapoor Singh);
"In view of the findings of fact arrived at by the High Court, the decree for specific performance of contract in respect of the entire suit land could not have been granted as the Appellant herein was not authorized by his sister to enter into the agreement for sale. The relinquishment of claim as contemplated under Section 12(3)(ii) of the Act as regard performance of the remaining part of the contract and all rights to compensation need not specifically be pleaded and can be made at any stage of the litigation. Such a plea can also be raised at the appellate stage."
(ii) (2011) 1 MLJ 404 (SC) (Kammana Sambamurthy v. Kalipatnapu Atchuthamma); When the vendor enters into an agreement to sell the entire suit property, but the vendor's wife establishes her claim that she has half share in the property but she was not an executant to the sale agreement and had not given he vendor express or implied authority to sell her half share of the suit property then (a) The said agreement would not be binding upon her and (b) The sale agreement can be enforced against the vendor only to the extent of his half share in the suit property.
(iii) 2011 (2) CTC 727 (Naveneethakrishnan v. S.A.Subramania Raja);
"The appellants 1 and 2 and their mother together have got 1/3rd share in the suit property and it forms a considerable part of whole of the property and hence as per Section 12 (3) of the Specific Performance Act, the respondents are entitled to claim 1/3rd share in the suit property.......... "
14. The contention of the second defendant is that a. The sale agreement ought to have been brought into existence by cheating and forgery.
b. The suit property is the ancestral property of the first defendant and as the third and fourth defendants are also entitled to each 1/3rd share as co-parceners, as per Section 29-A of the Tamil Nadu 30 of 1956 the sale agreement is not binding upon defendants 3 and 4 to the extent of their 2/3rd share. This contention is valid.
15. The specific contention of the court guardian, on behalf of defendants 3 and 4 is that the suit for specific performance of the 2/3rd share of the minor defendants 3 and 4 in the suit property is not maintainable, as defendants 3 and 4 are entitled to 1/3rd share each as per Section 29-A of The Hindu Succession Act. In support of these contentions, the learned counsel for defendants 3 and 4 have relied upon the following two decisions:-
(i) (2002) 1 M.L.J. 169 (SC) (Madhegowda v. Ankegowda). In this decision, it has been held that the transfer of minor's interest by a defacto guardian / manager having been made in violation of the express bar provided under Section 11 of the Hindu Minority and Guardian ship Act is per se invalid. The existence or otherwise of legal necessity is not relevant in the case of such invalid transfer. A transferee of such an alienation does not acquire any interest in the property.
This decision will not apply to the facts of the case as the sale agreement in this case was not by a defacto guardian / defacto manager and the sale agreement was by the natural guardian of the minor.
(ii) (2000) I MLJ 232 (M.M.Ragunathan v. M.M.Basirulla (died) and others). In this decision, in paragraph 33, it has been held as follows:-
"33. If it is a question of fact, the lower court has considered the surrounding circumstances and has come to a conclusion that these are not divisible contracts. Learned counsel for appellant argued that defendants 1 and 5 together are managing the major shares and if defendants 2 to 4 are holding a minor share, even in that case, specific performance could be ordered. This Court is not concerned with the question whether the parties are holding major share or minor share. The question for decision is, what was the intention of the parties at the time of executing Ex.A-3 or at the time when plaintiff bargained for purchasing the property. If that be so, if the bargain is for purchasing the entire property and if that was not possible, specific performance cannot be ordered."
This decision also will not apply to the facts of this case. This decision was rendered in a case, where the property belonged to more persons than one and when the negotiation was concluded by one of those persons, it was held that one co-sharer cannot represent the other. This is a case, the father has entered into a transaction representing the minor as the legal guardian, but, not expressly stated so in the sale agreement. Moreover, the claim now is restricted to 1/3rd the undivided share of the first defendant.
16. Contending that the suit sale agreement itself is void and unenforceable, the learned counsel for the second respondent has relied upon the following decisions,
(i) (1990) 3 Supreme Court Cases 1 (Mayawanti v. Kaushalya Devi). In this decision, it has been held as follows:-
"The jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it."
(ii) (1993) 2 Supreme Court Cases 402 (G.Annamalai Pillai v. District Revenue Officer and Others). In this decision, it has been observed as follows:-
"3. Sub-sections (2) and (3) of Section 8 of the Act which are relevant are reproduced hereunder:
"(2) The natural guardian shall not, without the previous permission of the court, -
(a) mortgage or charge, or transfer by sale, gift, exchange or otherwise, any part of the immovable property of the minor, or
(b) lease any part of such property for a term exceeding five years or for a term extending more than one year beyond the date on which the minor will attain majority.
(3) Any disposal of immovable property by a natural guardian, in contravention of sub-section (1) or sub-section (2), is voidable at the instance of the minor or any person claiming under him."
(iii) (1996) 6 Supreme Court Cases 218 (Kallathil Sreedharan v. Komath Pandyala Prasanna). In this decision, it has been observed as follows:-
"6. ... When the special leave petitions were filed, the appellants had filed an affidavit stating that they are not claiming specific performance as regards half share of the second respondent-minor. It would be obvious that since the mandatory requirement of sanction from the Court for alienating the property of the minor, as required under Section 8 of the Hindu Minority and Guardianship Act, had not been obtained, the contract of sale to the extent of the half share of the minor is void and it does not bind the minor. The courts have rightly declined to exercise discretion on sound principle of law to protect the estate of the minor.
9. Section 20 of the Specific Relief Act, 1963 deals with discretion and jurisdiction to the Court. It says that the court is not bound to grant such relief merely because it is lawful to do so, but at the same time it enjoins that the discretion of the court should not be arbitrary but sound and reasonable, guided by judicial principles and capable by correction by a court of appeal. It would thus be seen that the discretion given to the court of equity is required to be exercised not arbitrarily but on sound and reasonable basis guided by judicial principles. "
(iv) (1998) 5 Supreme Court Cases 381 (Ganesh Shet v. Dr. C.S.G.K.Setty). In this decision, it has been observed/held as follows:-
"The question was whether, when parties have led evidence in regard to a contract not pleaded in the evidence, relief can be granted on the basis of the evidence and whether the plaintiff can be allowed to give a go-by to the specific plea in the plaint. Is there any difference between suits for specific performance and other suits? Yet another aspect of the matter was whether in a suit for specific performance the plaintiff can be given relief under the general prayer "such other relief as this Hon'ble Court may deem fit to grant in the circumstances of the case", in the light of Order 7 Rule 7 CPC.
The relief for specific performance is discretionary and is not given merely because it is legal but it is governed by sound judicial principles. The circumstances referred to in sub-sections (2) to (4) of Section 20 in regard to exercise of discretion for granting a decree for specific performance are not exhaustive. In a suit for specific performance, the evidence and proof of the agreement must be absolutely clear and certain. While normally it is permissible to grant relief on the basis of what emerges from the evidence even if not pleaded, provided there is no prejudice to the opposite party, such a principle is not applied in suits relating to specific performance. Where the defendant denies the contract as alleged and the evidence proves a contract, but different from that alleged by the plaintiff, the court should refuse to exercise discretion for grant of decree for specific performance."
In this case, there is no difference in the contract as alleged by the plaintiff and the first defendant. The larger relief asked for in the plaint is restricted to the lesser relief. Therefore, the decision will not apply to the facts of this case.
(v).(a) (2000) 7 Supreme Court Cases 379 (Surjit Kaur v. Naurata Singh). In this decision, it has been held as follows:-
"Where a contract is not capable of being performed in its entirety the readiness and willingness, at all stages held, is the readiness and willingness to accept part-performance.
Part-performance once an election is made then that party cannot resile or get out of the election. Hence where the vendee elected not to accept part-performance it was no longer open to him to claim it at a later date."
(v).(b) It is contended by the learned counsel appearing for the second defendant that the plaintiff did not elect to accept part performance at the earliest stage and therefore it is not open to him to claim it at a later point of time. It is contended that when a minor issued a notice warning the plaintiff that the father do not have the right to sell the share of the minors, the plaintiff ought to have exercised the option to purchase part of the property. The plaintiff, having not elected not to accept part performance, it is not open to him to elect to accept part performance at this distant point of time.
(v).(c) This contention of the learned counsel for the second respondent cannot be accepted because at that time when the minors issued notice, the plaintiff did not specifically contend that the plaintiff is electing not to accept part performance. The silence on the part of the plaintiff, at that point of time, cannot be construed as amounting to wilful election as to not to accept part performance. It could, at the most, be construed as amounting to indecisiveness at that point of time. Moreover, it is relevant to point out that, even if the sale deed has been executed by the first defendant, in violation of the provisions of Section 8 of the Hindu Minority and Guardianship Act, the sale is voidable at the option of the minors and it is not a void sale.
One more circumstance is to be pointed out is that if the entire extent of property in the suit Survey No. is taken into account, then the share of the first defendant alone would be 1.30 acres whereas, the sale agreement is for 1.50 acres, i.e., covering an extent of 0.20 cents only. But, no document hasbeen filed to show the total extent of property allotted to the first defendant in the partition. Therefore, the undivided 1/3rd share is considered treating the suit item as belonging to D1, D4 and D5.
(vi) (2003) 10 Supreme Court Cases 390 (Manjunath Anandappa v. Tammanasa). In this decision, it has been held as follows:-
"Specific Relief Act, 1963, Section 20. Court's discretion regarding decree of specific performance under S. 20 of the 1963 Act. Concurrent refusal to exercise discretion by lower courts and interference by High Court, when permissible. High Court reversing the finding of the courts below in second appeal holding that defendants 1 and 2 did not contest the case. The High Court in second appeal should not have interfered with the findings of courts below without arriving at a decision that discretion has been exercised by courts below on a wrong legal principle.
Appellate court does not ordinarily interfere with the discretion exercised by the courts below.
(vii) (2011) 12 Supreme Court Cases 658 (Vimaleshwar Nagappa Shet v. Noor Ahmed Shariff and Others). In this decision, in paragraph 10, it has been held as follows:-
"10. As a matter of fact, the agreement of sale dated 2-5-1988 does not refer to Defendant 3 at all or his share in the property. However, in the plaint, the plaintiff clearly admitted the share of Defendant 3 who was a minor and the fact that no guardian was appointed for the minor and Defendant 2 was not his natural guardian. Without Defendant 3 joining the other co-sharers, no agreement of sale could be entered with the plaintiff for the entire property including the minor's share...."
This decision also will not apply to the facts of the case. The property covered in the above case is the house property in which the division of property under the introduction of a stranger of the property after partition would be difficult.
17. Under circumstances discussed above, this Court hold that the plaintiff is entitled to get the sale deed executed in respect of the undivided 1/3rd share of the first defendant. To this limited extent, the Second Appeal is allowed. The Judgment and decree, dated 27.08.2001, made in A.S.No.74 of 2001 on the file of the Principal District Judge, Coimbatore, confirming the judgment and decree, dated 26.10.1999 made in O.S.No.351 of 1989 on the file of the Sub Court, Thiruppur, are set aside.
17.1. Though the remedy is provided only to the extent of 1/3rd share, the plaintiff will pay the entire amount of sale consideration as agreed in the suit agreement as there is escalation in prices. The plaintiff shall deposit the balance of sale consideration in the Lower Court, within a period of one month from the date of receipt of the copy of this judgement, and on such deposit, the first defendant will be at liberty to withdraw the same and to execute the sale deed, failing which, the plaintiff will be at liberty to get the sale deed executed, through court. No costs.
srk To
1. The Principal District Judge, Coimbatore
2. The Sub Court, Thiruppur