Madras High Court
V.Brinda vs Subramanian (Died) ... Plaintiff on 6 September, 2012
Author: M.Venugopal
Bench: M.Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 06.09.2012 CORAM THE HONOURABLE MR.JUSTICE M.VENUGOPAL S.A.Nos.1640 and 1641 of 2003 S.A.No.1640 of 2003: 1.V.Brinda 2.Sankar 3.Minor Malathi 4.Minor Abirami 5.Minor Shaktivel .... Appellants/Appellants/Defendants 2 to 6 (Minors 3 to 5 are represented by their Natural Guardian Mother the 1st Appellant herein) Vs. 1.Subramanian (Died) ... Plaintiff 2.Parijatham 3.Padma 4.Gopal 5.Sathasivam 6.Lakshmipathi ... Respondents/Respondents/Plaintiff (RR 2 to 6 brought on record as LRs of the deceased sole Respondent vide order dated 25.01.2012 made in C.M.P.Nos.601 to 606 of 2011 in S.A.No.1640 of 2003) Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 11.09.2001 in A.S.No.21 of 1999 on the file of the Learned Subordinate Judge, Ranipet, Vellore District, in confirming the Judgment and Decree dated 26.03.1999 in O.S.No.69 of 1993 on the file of the Learned District Munsif, Ranipet. S.A.No.1641 of 2003: 1.V.Brinda 2.Sankar 3.Minor Malathi 4.Minor Abirami 5.Minor Shaktivel .... Appellants/Appellants/Plaintiffs 2 to 6 (Minors 3 to 5 are represented by their Natural Guardian Mother the 1st Appellant herein) Vs. 1.Subramanian (Died) ... Defendant 2.Parijatham 3.Padma 4.Gopal 5.Sathasivam 6.Lakshmipathi ... Respondents/Respondents/Plaintiff (RR 2 to 6 brought on record as LRs of the deceased sole Respondent vide order dated 25.01.2012 made in C.M.P.Nos.601 to 606 of 2011 in S.A.No.1641 of 2003) Appeal filed under Section 100 of Code of Civil Procedure, against the Judgment and Decree dated 11.09.2001 in A.S.No.22 of 1999 on the file of the Learned Subordinate Judge, Ranipet, Vellore District, in confirming the Judgment and Decree dated 26.03.1999 in O.S.No.477 of 1992 on the file of the Learned District Munsif, Ranipet. For Appellants : Mr.R.Margabandhu (In both Second Appeals) For Respondents : Mr.A.Gouthaman (In both Second Appeals) COMMON JUDGMENT
The Appellants/Defendants have preferred Second Appeal No.1640 of 2003 as against the Judgment and Decree dated 11.09.2001 in A.S.No.21 of 1999 passed by the Learned Subordinate Judge, Ranipet, Vellore District.
The Appellants/Plaintiffs have preferred Second Appeal No.1641 of 2003 as against the Judgment and Decree dated 11.09.2001 in A.S.No.22 of 1999 passed by the Learned Subordinate Judge, Ranipet, Vellore District.
2.The Germane Plaint facts in O.S.No.69 of 1993 [Filed by the Plaintiff/1st Respondent in S.A.No.1640 of 2003] are set out hereunder:
(i)The properties described in the plaint schedule and certain other properties were allotted to the 1st Defendant as per partition which took place in the family on 10.12.1978. The 1st Respondent/ Plaintiff (later deceased) and other brothers were allotted their respective shares in the said division. After the division in the family, the 1st Defendant borrowed a sum of Rs.1,300/- from the 1st Respondent/Plaintiff (later deceased), Rs.400/- from one Sorupan and Rs.500/- from Pappa of Katpadi. During the first week of December 1982, for discharging these debts and also for money required by the 1st Defendant for family expenses, he agreed to sell the suit properties at Rs.60/- per cent of land. Thereupon, on 24.12.1982, the 1st Defendant entered into an agreement with the 1st Respondent/Plaintiff (later deceased) for sale of the suit properties for Rs.3,555/-. The sale price comprised of the debts mentioned above and a sum of Rs.1,355/- was received in cash on the date of agreement. The entire sale price was paid to the 1st Defendant by the 1st Respondent/Plaintiff. In part performance of the agreement of sale, the 1st Defendant put the 1st Respondent/Plaintiff in possession of the suit properties. Ever since the date of agreement, the 1st Respondent/Plaintiff was in possession of the suit properties in part performance of the agreement of sale. The 1st Defendant undertook to execute a registered sale deed in respect of the suit properties in favour of the 1st Respondent/ Plaintiff whenever he called upon him to do so.
(ii)On 01.11.1992, the 1st Defendant in O.S.No.69/1993 (later deceased) issued a Lawyer's Notice to the 1st Respondent/Plaintiff mentioning that the 1st Respondent/Plaintiff and members of his family were attempting to interfere with the alleged possession of the suit properties. The 1st Respondent/Plaintiff caused a reply on 08.11.1992 setting forth the true facts and called upon the 1st Defendant to execute and register a Sale Deed in his favour in respect of the suit properties. But the 1st Defendant had not complied with the demand.
(iii)The 1st Respondent/Plaintiff discharged the two debts of Sorupan and Pappa. Since the third debt in a sum of Rs.1,300/- was due to the 1st Respondent/Plaintiff, a sum of Rs.1,355/- was received in cash on the date of sale agreement and the entire sale price was received by the 1st Defendant. Therefore, the 1st Defendant was bound to execute and register a conveyance. Therefore, the 1st Respondent/ Plaintiff (in O.S.No.69/1993) had filed a suit praying the trial Court to pass a Decree in directing the Appellants 1 to 5 (Defendants 2 to 6) to register a conveyance in respect of the schedule mentioned property in his favour and in default to execute the same through Court.
3.The Written Statement Pleas [filed by the 1st Defendant (since deceased)]:
(i)He along with the 1st Respondent/Plaintiff, A.Venkatesan and Shanmugam were three brothers who constituted the members of joint Hindu family. They effected division of their joint family properties as per family arrangement dated 10.12.1978. As per family arrangement, the suit property and other properties were allotted to him and he was in possession and enjoyment of the suit property, ever since from the date of family arrangement dated 10.12.1978 till date.
(ii)In the first week of December, 1992 the 1st Respondent/ Plaintiff and his sons jointly declared in the village that they had some interest in some portion of the property of the 1st Defendant and openly declared to trespass into the properties. Therefore, 1st Defendant issued a notice dated 01.11.1992 warning the 1st Respondent/Plaintiff and his son not to trespass into the suit property for which the 1st Respondent/Plaintiff caused a reply notice dated 08.11.1992 mentioning that the 1st Defendant (later deceased) had executed a sale agreement dated 24.12.1982 agreeing to sell the property in favour of the 1st Respondent/Plaintiff in respect of the suit property and made a false allegation that he was in possession of the suit properties.
(iii)He had not executed any agreement dated 24.12.1982 and further, the alleged agreement was a fabricated and a forged one. Also, he had not borrowed a sum of Rs.1,300/- from the 1st Respondent/Plaintiff. Further, he had not borrowed Rs.400/- from one Sourpan and also not borrowed Rs.500/- from one Pappa of Katpadi. Added further, the 1st Defendant had not agreed to sell the suit properties at the rate of Rs.60/- per cent and had not agreed to sell for Rs.3,555/- and also not received a sum of Rs.1,355/- in cash, in pursuance of any sale agreement. The 1st Defendant had not agreed to execute any sale deed in favour of the 1st Respondent/Plaintiff, whenever he called upon him to do so.
(iv)The 1st Defendant was in possession and enjoyment of the suit property in his own right, title and interest and he had perfected his title by adverse possession also. It was utter fabrication that the 1st Respondent/Plaintiff had discharged Rs.400/- to Sorupan. The 1st Respondent/Plaintiff was not entitled to any right to claim the relief of specific performance of contract. There was no cause of action for the suit. The 1st Defendant filed O.S.No.477 of 1992 for declaration of title and injunction.
4.The Resume of Facts of the Plaint in O.S.No.477 of 1992 [Filed by the 1st Plaintiff (later deceased)]:
(i)The 1st Plaintiff, 1st Respondent/1st Defendant, one Venkatesan and Shanmugam were brothers who constituted the members of the joint Hindu family. They effected division of their joint family properties under family arrangement dated 10.12.1978. In the partition, the plaint schedule properties and other properties were allotted to the share of the 1st Plaintiff (Boopalan). The 1st Plaintiff was in possession and enjoyment of the suit properties in his own right, title and interest and perfected title to the suit property by means of an adverse possession.
(ii)The Defendants 2 to 4 are the sons and 5th Defendant is the wife of the 1st Respondent/ 1st Defendant. They do not have any right of title or interest over the schedule mentioned properties and other properties allotted to the share of the 1st Respondent/Plaintiff. For the past one week all of them jointly declared in the village that they had some interest in some portion of the properties of the 1st Plaintiff and openly declared that they would trespass into the suit properties and other properties. Thereupon, the 1st Plaintiff issued a notice dated 01.11.1992 to the Defendants warning them not to trespass into the properties for which the Defendants issued a reply notice dated 08.11.1992 that the Plaintiff had executed an agreement dated 24.12.1982 agreeing to sell the schedule mentioned properties in favour of the 1st Defendant in regard to the suit properties and that the Defendants are in possession of the suit properties. The Defendants are not in possession of the suit properties.
(iii)The 1st Plaintiff had not received any amount and he had not directed the Defendants to discharge any debt to anybody much less for Rs.3555/-. As such, the Plaintiffs filed a suit seeking the relief of permanent injunction restraining the Defendants, their servants, agents etc. from in any manner interfering with the 1st Plaintiff's peaceful possession and enjoyment of the suit properties.
5.The Written Statement Averments of the Defendants in O.S.No.477 of 1992:
(i)Admittedly, the suit properties were allotted to the Plaintiff's share in the division that took place on 10.12.1978. The 1st Plaintiff was allotted in addition to the suit properties certain other properties also towards his share. The averments that during November 1992 they jointly declared that they had interest in the suit properties and they would trespass were denied. Repudiating the claim, the Defendants had issued a reply on 08.11.1992 to the Plaintiff's Lawyer's Notice dated 01.11.1992. It was false to aver that the Defendants were not in possession of the suit properties. Equally, it was false to state that the Plaintiff was in possession of the suit properties by paying kists.
(ii)The 1st Plaintiff had contracted debts and requested the 1st Defendant to discharge the same, to an extent of Rs.2,200/-. These debts include a sum of RS.1,300/- due to be paid to the 1st Defendant, Rs.400/- due to be paid to Sorupan and Rs.500/- from one Pappa of Katpadi in December 1982. At that time, the Plaintiff offered to sell the suit properties at Rs.60/- per cent of land and entered into a sale agreement to sell the suit properties for a total sum of Rs.3,555/-.
(iii)The 1st Plaintiff, accordingly, executed a sale agreement on 24.12.1982 in favour of the 1st Defendant agreeing to sell the suit properties for Rs.3,555/- and delivered possession of the same. The sale price comprised of three items of debts mentioned aforesaid and a sum of Rs.1,355/- received in cash by the Plaintiff from the 1st Defendant on 24.12.1982. By means of the said agreement, the Plaintiff undertook to execute a registered Sale Deed in respect of the suit properties whenever called upon by the Defendant to do so.
(iv)The 1st Defendant was in possession of the suit properties as part performance of the contract of sale. The Plaintiff was not in possession of the suit properties and therefore, the claim for injunction was incompetent. With a view to ward off the claim for specific performance, the Plaintiff had deliberately impleaded Defendants 2 to 5. They were neither necessary nor proper parties. There was no cause of action for the suit. The suit claim was mala fide and vexatious.
6.Before the trial Court, the two suits O.S.No.477 of 1992 and O.S.No.69 of 1993 were tried jointly and a common evidence was recorded. On the side of the Plaintiffs, witnesses P.W.1 to P.W.3 were examined and documents Exs.A.1 to A.11 were marked. On the side of the Defendants, witnesses D.W.1 to D.W.3 were examined and Exs.B.1 to B.20 were marked.
7.The trial Court, on an appreciation of the available oral and documentary evidence on record, dismissed the suit O.S.No.477 of 1992 [filed by the Appellants in S.A.No.1641/2003] without costs. It decreed the suit O.S.No.69 of 1993 [filed by the Respondent/Plaintiff in S.A.No.1640 of 2003] without costs.
8.The First Appellate Court viz., the Learned Subordinate Judge, anipet, while passing the Judgment in A.S.Nos.21 and 22 of 1999, on 11.09.2001, dismissed both the Appeals and thereby affirmed the Judgment and Decree passed by the trial Court in O.S.No.477 of 1992 and O.S.No.69 of 1993, without costs.
9.At the time of admission of the Second Appeal No.1640 of 2003, the following Substantial Questions of Law Nos.1 and 2 were framed by this Court for adjudication:
1.Whether the suit is barred by limitation by not filing the suit within three years from the date of denial of execution and refusal to execute the sale deed in pursuance of the suit agreement?
2.Whether the defendant had not complied with provisions of the Section 16(c) of the Specific Relief Act viz., whether he proved readiness and willingness to perform the contract on his part?
At the time of admission of the Second Appeal No.1641 of 2003, this Court had framed the following Substantial Question of Law No.1 for adjudication:
1.Whether the findings of the Courts below can be sustained in view of various materials on record and whether the appellant is entitled to retain possession?
The Contentions, Discussions and Findings on Substantial Questions of Law Nos.1 and 2 in S.A.No.1640/2003:
10.The Learned Counsel for the Appellants in both the Appeals submits that the trial Court as well as the First Appellate Court failed to consider the point of limitation in filing the suit for specific performance of contract.
11.It is the further contention of the Learned Counsel for the Appellants that as per Article 54 of the Limitation Act, 1963, a suit for specific performance should be filed within three years from the date of commencement of limitation and that the sale agreement was dated 24.12.1982 and that D.W.1 (Plaintiff in O.S.No.69 of 1993) had clearly admitted that the same in his evidence and also that refusal to execute the Sale Deed as per evidence was in 1984. Therefore, the suit should have been filed during the year 1987. However, the suit was filed only during the year 1993. As such, the suit O.S.No.69 of 1993 was hit by the plea of limitation.
12.Added further, the Learned Counsel for the Appellants vehemently contends that both the Courts held that limitation begins from 01.01.1992, the date on which the Plaintiff in O.S.No.477 of 1992 (Boopalan) issued notice to the Defendant (Subramanian) complaining him not to interfere with the lawful possession of the Plaintiff. Unfortunately, both the Courts had not appreciated the vital admission made by P.W.1 relating to the starting point of limitation in a realistic fashion.
13.Advancing his arguments, the Learned Counsel for the Appellants submits that the trial Court as well as the First Appellate Court failed to adhere to the legal requirements as per Section 16(c) of the Specific Relief Act 1963 in and by which a party who seeks the relief of specific performance must plead and prove his readiness and willingness to perform his part of the contract from the date of agreement till the date of hearing of the suit. Both the Courts held that the Defendant (viz. Plaintiff in O.S.No.69 of 1993) was in possession and was entitled to the decree of specific performance, which was not in conformity with the settled legal position.
14.Yet another plea of the Learned Counsel for the Appellants is that both the Courts erred in coming to the conclusion that the Defendant was given possession of the suit property on the date of sale agreement dated 24.12.1982 and that he was in possession of the property under part performance of the contract as per Section 53(A) of the Transfer of Property Act.
15.According to the Appellants, the Defendant [Plaintiff in O.S.No.69 of 1993 (Subramanian)] had not proved the possession of the property and he had not cultivated the suit property and also not produced chitta or adangal for the suit properties to prove and show his enjoyment and also that he had not paid the kists for the suit lands, as admitted by D.W.1.
16.It is the argument of the Learned Counsel for the Appellants that both the Courts failed to take into account that the 1st Plaintiff in O.S.No.477 of 1992 (1st Defendant in O.S.No.69/1993) alone was in possession of the properties and that he produced Patta-Ex.A.3 and paid kists-Exs.A.4 to A.11 to prove his enjoyment of the same.
17.The Learned Counsel for the Appellants takes a legal plea that the Respondents (Plaintiffs in O.S.No.69/1993) had no title to the suit properties and they were not in possession of the same.
18.The Learned Counsel for the Appellants cites the decision of the Hon'ble Supreme Court in Ram Kumar Agarwal and another V. Thawar Das (Dead) through LRs., AIR 1999 Supreme Court 3248 at page 3251, wherein, in paragraphs 8 and 9, it is laid down as follows:
"8.Plea under Section 53-A of the Transfer of Property Act raises a mixed question of law and fact and therefore cannot be permitted to be urged for the first time at the stage of second appeal. That apart, performance or willingness to perform his part of the contract is one of the essential ingredients of the plea of part performance. Thawar Das having failed in proving such willingness protection to his possession could not have been claimed by reference to Section 53-A of the Transfer of Property Act.
9.For the foregoing reasons, we find the judgment of the High Court wholly unsustainable in law. The appeals deserve to be allowed, setting aside the judgment of the High Court."
19.Per contra, it is the submission of the Learned Counsel for the Respondents that both the trial Court as well as the First Appellate Court had taken into account all the relevant facts and circumstances of the case coupled with oral and documentary evidence on record and very rightly dismissed the Appeal A.S.No.21 of 2001 thereby confirming the Judgment and Decree passed by the trial Court in favour of the Plaintiff in O.S.No.69 of 1993 and dismissed A.S.No.22 of 2001 thereby confirming the Judgment and Decree passed by the trial Court in dismissing the suit without costs, which need not be interfered with by this Court sitting in Second Appeal.
20.The Learned Counsel for the Respondents cites the decision of this Court in Chokkammal and 3 others V. K.Balraj, (2009) 3 MLJ 1168 & 1169, wherein it is held thus:
"If the consideration as recited in the document Exhibit A-3 refers to Rs.44,000/-, the defendants are barred by Section 92 of the Evidence Act to contend that the consideration was Rs.1 lakh and that the payment of only Rs.20,000/- was made on the date when their signatures were obtained on 3.12.1992. Having regard to the fact that the entire sale consideration had been paid even on the date of institution of suit, it is found that the plaintiff has proved his readiness and willingness also. A vendor who had received the entire sale consideration is obliged to hand over possession of the property to the purchaser and give warranty for occupation free of disturbances. It is not possible to attribute any grave misconduct on the part of the plaintiff, especially in a case where the entire sale consideration has been paid, to deny to him the relief of specific performance. On the other hand, it would be inequitable to deny such a relief in view of Section 10 of Specific Relief Act, which states that in respect of immovable property, the breach on the part of the vendor cannot be compensated only by money and specific performance of the agreement alone is the adequate remedy."
21.He also relies on the decision of the Hon'ble Supreme Court in Balasaheb Dayandeo Naik (Dead) through LRs. and others V. Appasaheb Dattatraya Pawar, (2008) 2 MLJ 750 (SC) wherein it is held hereunder:
"In the case of sale of immovable property, there is no presumption as to time being the essence of the contract and even where the parties have expressly provided that time is the essence of the contract, such a stipulation will have to be read along with other provisions of the contract.
Mere fixation of time within which contract is to be performed, does not make the stipulation as to the time as the essence of the contract."
22.That apart, the Learned Counsel for the Respondents quotes the following decisions:
(a)In the decision of the Hon'ble Supreme Court in Ram Khilona and others V. Sardar and others, 2002 (3) CTC 438 at page 444 & 445 in paragraph 13, it is observed as follows:
"13. In Halsbury's Law of England, 4th Edition at page 552 para 1378 it is observed:
"A material alteration is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed.
The effect of making such an alteration without the consent of the party bound is exactly the same as that of canceling the deed.
In paragraph 1383 at page 555 it is observed:
An alteration made in a deed, after its execution, in some particular which is not material does not in any way effect the validity of the deed; and this is equally the case whether the alteration was made by a stranger or by a party to the deed. Thus the date of a deed may well be filled in after execution; for a deed takes effect from the date of execution, and is quite good though it is undated. So, also, the names of the occupiers of land conveyed may be inserted in a deed after its execution, where the property assured was sufficiently ascertained without them. It appears that an alteration is not material which does not vary the legal effect of the deed in its original state, but merely expresses that which was implied by law in the deed as originally written, or which carries out the intention of the parties already apparent on the face of the deed, provided that the alteration does not otherwise prejudice the party liable under it. It has not been held by the High Court and indeed it was also not contended before us that the agreement of sale, as it stood originally, was invalid for any reason. Indeed the position is accepted that the document did not require any marginal witnesses, for validity in law. All that has been observed by the High Court is that the covenantees, appellants herein, might have had an apprehension that as the marginal witnesses in the original document were persons closely related to them the Court may not readily accept the case of the plaintiffs regarding the agreement of sale; therefore, they subsequently introduced two independent persons as marginal witnesses in the document which amounted to interpolating with the documents. We find from the discussions in the judgment of the trial Court and the first appellate Court that the question of addition of marginal witnesses in the document after its execution was considered by the Courts and was not believed. The observations of the first appellate Court quoted by the High Court in the impugned judgment were mere observations which, as the judgment show, was not taken as a substantial matter against the credibility and acceptability of the case of the plaintiffs in Civil Suit No.58 of 69. As noted earlier, the trial Court and the first appellate Court had concurrently accepted the case of the plaintiffs in C.S.No.58 of 69 and had rejected the case of the plaintiffs in C.S.No.58 of 71. The Courts in exercise of the discretionary jurisdiction vested in them under Section 20 of the Specific Relief Act had decreed the suit for specific performance of the agreement of sale. The High Court in the impugned judgment has not discussed any legality by the courts below in taking the decision. It appears that the High Court has decided the second appeal on a question neither taken in the memorandum of appeal nor taken in that form before the courts below and has upset the concurrent decisions of the courts on a finding recorded by it. The approach of the High Court in the second appeal was clearly against the law and spirit of Section 100 of the Code of Civil Procedure. Further, as discussed earlier, the view taken by the High Court that the interpolation said to have been made by the covenantees in the agreement of sale does not stand scrutiny under law. As observed earlier such alteration, assuming that it was made subsequently, did not bring about any change in the validity and enforceability of the agreement of sale. We are constrained to observe that the finding recorded by the High Court appears to be based on surmise. Therefore, the judgment is clearly unsustainable."
(b)In Govindaraju V. Mariamman, AIR 2005 Supreme Court 1008, at page 1013 in paragraph 16, it is held as follows:
"16.As per settled law, the scope of exercise of the jurisdiction by the High Court in Second Appeal under Section 100 is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial question of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari's case (AIR 2001 SC 965: 2001 AIR SCW 723) that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be a 'substantial' question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing was to the rights of the parties before the Court. As to what would be the question of law involving in the case, it was observed that to be a question of law' involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be necessary to decide that question of law for a just and proper decision between the parties."
(c)In Subramaniam Naidu V. T.N.Rajendran, 1999 (1) CTC 529, it is held by this Court that 'the Plaintiff failed to prove that defendant paid money only on promissory note and there is no material to show last payment was made on promissory note and that the suit is held to be barred by limitation.'
(d)In Oriental Insurance Company Limited, Divisional Office, No.118-B, West Perumal Maistry Street, Madurai -1 V. T.Pitchaimani and others, 1998 (I) CTC 162, it is observed that 'the normal rule is in the absence of any pleading any amount of oral evidence will not be of any use at all since such oral evidence without pleading is likely to take other party by surprise.'
(e)In P.G.Gopal V. V.Manickavelu (died) and others, (2003) 3 MLJ 696, it is held as under:
"There was no pleading about the benami nature of the holding of the property, no issue was raised in the suit and such a plea cannot be allowed to be raised for the first time in the second appeal."
(f)In Manicka Poosali (deceased by L.Rs.) and others V. Anjalai Ammal and another, AIR 2005 Supreme Court 1777 at page 1781, in paragraph 18, it is held as follows:
"18.Coming to the facts of the present case, we find that the two courts on appreciation of the entire evidence came to the conclusion that the Plaint A Schedule properties at item Nos. 22 to 26 and 29 were self-acquired properties of Mottaya Poosali and were not purchased with the funds of the Joint Hindu Family. The High Court on re-appreciation of evidence has held that these properties were not the self-acquired properties of Mottaya Poosali and were purchased with the funds of the Joint Hindu Family. Apart from the fact that the High Court on re-appreciation of evidence could not set aside the findings recorded by the courts below on facts, the fact that these properties were the self-acquired properties is demonstrated by the fact that the properties at item Nos. 22 to 26 and 29 were purchased by Mottaya Poosali between 29th April, 1953 to 19th January, 1956. Item Nos.23 and 24 were purchased vide sale deed (Ex.B-12), dated 4.6.1952, item No.22 was purchased vide sale deed (Ex.B-13), dated 29.4.1953, item No.26 was purchased vide sale deed (Ex.B-14), dated 20.1.1955 and item Nos. 25 and 29 were purchased vide sale deed (Ex.B-15), dated 19.1.1956. During this period Mottaya Poosali was a member of the Joint Hindu Family consisting of himself and his two brothers Ayyaswamy Poosali and Ammasi Poosali. The partition between Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali took place in the year 1970. Had these properties been purchased with the funds of the Hindu Joint Family property, then the same would have formed part of the Joint Hindu Family consisting of Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali. In the registered partition deed dated 19th July,1970 between Mottaya Poosali, Ayyaswamy Poosali and Ammasi Poosali these properties were treated to be the self-acquired properties of Mottaya Poosai and were not subjected to the partition. Mottaya Poosali in partition was allotted properties item Nos.11 to 21 and 28 only. This clearly demonstrates that the properties item Nos. 22 to 26 and 29 were the self-acquired properties of MottayaPoosali and were treated by him as such throughout. Being the self-acquired property. Mottaya Poosali had the absolute right to dispose them of in any manner he liked i.e. by way of sale, gift or will. The findings recorded by the High Court that these properties were acquired with the funds of Joint Hindu Family is factually incorrect and the finding recorded by the courts below on facts were correct and the High Court has clearly erred in reversing the same. The counsel for the appellants is right in his submission that the High Court has overstepped in the exercise of its jurisdiction in reversing the concurrent findings of fact recorded by the courts below in a second appeal filed under Section 100 IPC."
(g)In Siddik Mahomed Shah V. Mt.Saran and others, AIR 1930 Privy Council 57(1), it is held hereunder:
"Where a claim has been never made in the defence presented no amount of evidence can be looked into upon a plea which was never put forward."
(h)In Syed Dastagir V. T.R.Gopalakrishna Setty, (1999) 6 Supreme Court Cases 337 at page 341, in paragraph 9, it is held thus:
"9. ... No specific phraseology or language is required to take such a plea. The language in Section 16(c) does not require any specific phraseology but only that the plaintiff must aver that he has performed or has always been and is willing to perform his part of the contract. So the compliance of "readiness and willingness" has to be in spirit and substance and not in letter and form. So to insist for a mechanical production of the exact words of a statute is to insist for the form rather than the essence. So the absence of form cannot dissolve an essence if already pleaded."
(i)In P.Ramasamy V. K.Chinnammal, (2011) 2 MLJ 832, 833, it is held thus:
"In all cases, it is not necessary that the plaintiff is expected to send the disputed pronote for expert's opinion. When the plaintiff proved her case through tangible evidence, the liability shifts to the defendant and after proving the case by the defendant through direct evidence, the liability once again shifts to the plaintiff."
(j)In Hero Vinoth (Minor) V. Seshammal, (2006) 5 Supreme Court Cases 545 at page 546 in paragraphs 20 & 23, it is held as follows:
"To be a question of law "involved in the case" there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. Where the facts required for a point of law have not been pleaded, a litigant should not be allowed to raise that question as a substantial question of law in second appeal. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter.
It will, therefore, depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case or not, the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the lift of any lis."
23.For fuller and better appreciation of the controversies in dispute between the parties, this Court makes a purposeful reference to the evidence of P.W.1 to P.W.3 and D.W.1 to D.W.3.
Depositions of Plaintiffs side:
24.It is the evidence of P.W.1 (Plaintiff in O.S.No.477/1992) that 1st Defendant is his brother and 2 to 3 Defendants are brother's sons and that the 5th Defendant is his brother's wife and apart from the 1st Defendant, he has two brothers viz., Venkatesan and Shanmugam out of which Venkatesan has expired and partition has taken place among themselves on 10.12.1978 and the suit properties have come to a share and also that he is in enjoyment of the same by paying kists.
25.The evidence of P.W.1 proceeds to the effect that apart from the suit property he owns a thatched house and that Ex.A.3-Patta in respect of suit property is in his name and Exs.A.4 to A.11 are the kists receipts paid by him in respect of the suit property and he has issued Ex.A.1-Notice to the Defendants because he created trouble for which Ex.A.2 is the reply furnished by them.
26.P.W.1 (in his cross examination) adds that he has not entered into any sale agreement with his brother- 1st Defendant on 24.12.1982 in respect of 10 to 14 items of five properties in Ex.A.1-Sale Agreement and it is not correct to state that he has to pay a sum of Rs.400/- as debt to one Sorupan and it is not correct to state that he has to owe a sum of Rs.500/- as debt to Pappa of Katpadi and also that it is not correct to state that he has received a sum of Rs.1,300/- as loan from the 1st Defendant and it is also not correct to state that for wiping out these debts, the property has been agreed to be sold and on the date of agreement received a sum of Rs.1,355/- and executed an agreement on 24.12.1982 in favour of the 1st Defendant, agreeing to sell per cent at a rate of Rs.60/- for selling 59 > cents of land and that the signature found in the agreement does not belong to him.
27.The evidence of P.W.1 is that he does not know to which properties Exs.A.4 to A.11-Kists Receipts were related and that he does not know about the passing of an exparte decree in O.S.No.69 of 1993 (filed by the 1st Defendant as Plaintiff) in respect of the suit properties.
28.P.W.2, in her evidence, has deposed that the Plaintiff (later deceased) was her husband and after filing of the suit, her husband died and in the partition, her husband was allotted the suit properties and other properties and based on the partition her husband enjoyed the properties and subsequently, they are in enjoyment of the same and that the suit properties belong to them and they are cultivating the same and since the Defendants interfered with their enjoyment and her husband sent a notice to the Defendants for which the Defendants had given a false reply and it was not correct to state that her husband in respect of the suit properties had executed a sale agreement and also that in the suit properties, the Defendants had no manner of right.
29.P.W.2 (in her cross examination) has deposed that she does not know that her husband in order to discharge the loan executed the sale agreement in favour of the 1st Defendant (Plaintiff-Subramanian in O.S.No.69/1993) and it was not correct to state that her husband executed the sale agreement in that manner. Moreover, it was wrong to state that her husband on the same day executed a sale agreement after receipt of the balance amount [other than the loan amount of Rs.1,355/-] and she had not known that her husband handed over the possession of the suit properties.
30.P.W.3, in his evidence, has deposed that the 1st Plaintiff-Boopalan cultivated the land separately, obtained by him in the partition and after his demise, the 2nd Plaintiff was doing the cultivation and the 2nd Plaintiff was in possession of the 1st Plaintiff's property.
31.P.W.3 (in his cross examination) has deposed that he does not know about the measurement of the property obtained by the 1st Plaintiff in partition and also the survey number and the extent and other details and he does not know that during the life-time of 1st Plaintiff, he obtained loan from two persons and further, he does not know the 1st Plaintiff during his life-time had availed a hand loan from the 1st Defendant.
Depositions of Defendants Side:
32.D.W.1 (1st Defendant in O.S.No.477/1992), in his evidence has deposed that the 1st Plaintiff-Boopalan was his brother and between him and other brothers partition has taken place on 10.12.1978 and each one got 1/4th share of properties and on that basis, the 1st Plaintiff has been allotted 1/4th share in the properties and his younger brother viz., the 1st Plaintiff-Boopalan, because of his heavy loan, asked him to lend money and accordingly, he received a sum of Rs.1,300/- as loan from him and also that his brother obtained a loan of Rs.300/- from Sorupan and later stated in the evidence that he received a sum of Rs.400/- as loan and also that his brother-Boopalan received a sum of Rs.500/- as loan from Katpadi Pappa.
33.Continuing further, it is the evidence of D.W.1 that in the suit property a portion of 59 < cents of land was agreed to be sold by 1st Plaintiff-Boopalan at the rate of Rs.60/- per cent and he requested him to settle all the loan and the 1st Plaintiff asked him to settle the loan.
34.D.W.1 has added in his evidence that in Ex.B.1 in three pages his brother 1st Plaintiff's signature is found and that the said agreement-Ex.B.1 has been written at morning 9'o clock and in Ex.B.1-Agreement, the loan to be paid by his brother and the loan settled details have been made mention of and from the date of agreement, he is in enjoyment of the suit properties and it is not correct to state that the suit property has been cultivated by the Plaintiffs and Exs.B.4 to B.13 are the kists receipts to show that he is in enjoyment of the suit property.
35.D.W.1 (in his cross examination) has deposed that his brother's wife, 2nd Plaintiff-Brinda at the time of execution of sale agreement, she was not in station and his brother Boopalan and his wife, 2nd Plaintiff orally sold the suit property to him and he does not know that because of the trouble between 1st Plaintiff-Boopalan and his wife, they live separately and 10 years later of the oral sale, the dispute has been raised in respect of the said sale and he complained about Ex.B.1-Agreement before the Panchayat but has not given complaint against his brother before the Police Station and that he had not obtained a cash receipt for paying the amount to Pappa and Sorupan and after settling the loan amount to Sorupan and Pappa, availed by his brother-Boopalan on the same day Ex.B.1-Agreement was written and there is no record to show that Plaintiff-Boopalan should pay Rs.1,300/-.
36.D.W.2 in his evidence has deposed that his brother-Boopalan has executed an oral sale deed-cum-sale agreement in favour of the 1st Defendant to his elder brother Subramanian and the sale agreement has been executed on 24.12.1982 at about 9.10 hours in the morning and he along with Munirathinam has signed in the agreement as witnesses and the said agreement has been written by Rajarathinam who has not alive and a portion of the property obtained in partition is the property found in Ex.B.1-Agreement and the sale consideration has been written as Rs.3,555/- and a sum of Rs.1,355/- has been given in cash to the 1st Plaintiff and from the balance amount viz., a sum of Rs.500/- has been paid to Katpadi Pappa for the loan obtained by his brother and another sum of Rs.400/- has to be paid to Motoor Sorupan Gounder for the loan received by his brother and from Ex.A.1- date of agreement, the suit property is in enjoyment of his brother-1st Defendant.
37.D.W.3, in his evidence, has stated that he knows to put his signature but does not know how to read and write. Further, he does not know who has cultivated the suit lands and Ex.B.1-Agreement has been written 15 years ago and in Ex.B.1-Agreement, he has affixed his signature and that Boopalan is not alive.
38.D.W.3, (in his cross examination), has deposed that Ex.B.1-Agreement has been brought by Venkatesan, 1st Defendant (Subramanian) and Subramanian asked him to put his signature and therefore, he has affixed his signature and at that time, the 1st Plaintiff-Boopalan has not come and he does not know whether the signature of 1st Plaintiff has been there and in his presence, the 1st Plaintiff-Boopalan has not affixed his signature.
39.In Ex.A.1-Plaintiffs Lawyer's Notice (Appellants in S.A.No.1641/2003) addressed to the Defendants in O.S.No.477 of 1992, it is, among other things, mentioned that in the partition of joint family properties that took place on 10.12.1978, the schedule properties were allotted to the 1st Plaintiff (later deceased) and that he was in possession and enjoyment of the schedule properties in his own right, title and interest and that he perfected title to those properties by means of an adverse possession. Further, it is mentioned that the Defendants are going to trespass into a portion of the schedule described properties and that they have no manner of title or interest to do so etc.
40.In Ex.A.2-Reply Lawyer's Notice of the Defendants addressed to the Plaintiffs' Lawyer dated 08.11.1992, it is, inter alia, mentioned that the 1st Plaintiff had contracted debts and requested the 1st Respondent/1st Defendant to discharge the same and consequently, the 1st Respondent/1st Defendant discharged the debts to the tune of Rs.3,555/- and thereupon, the 1st Plaintiff agreed to convey an extent of 59 < cents [items 10 to 14 mentioned in the notice under reply] by executing a document in favour of the 1st Respondent/1st Defendant on 24.12.1982 etc. Also, it is mentioned that the 1st Respondent/1st Defendant and members of his family are in possession and enjoyment of these items of properties by paying kists etc.
41.Ex.B.1 is the oral Sale Deed dated 24.12.1982 executed by the 1st Plaintiff (later deceased) to and in favour of the 1st Respondent/ 1st Defendant (later deceased) wherein it is mentioned that the 1st Plaintiff had agreed to sell the schedule mentioned lands in the survey numbers mentioned therein at a cost of Rs.60/- per cent in respect of his share 0.59 < cents for Rs.3,555/-.
42.In Ex.B.1-Sale deed, it is mentioned that the 1st Plaintiff-Boopalan had to pay a balance of Rs.1,300/-, to pay a balance sum of Rs.400/- to Sorupan and to pay a sum of Rs.500/- to Katpadi Pappa and in all, there remains a balance of Rs.2,200/- to be paid. Moreover, it is mentioned that the aforesaid balance of Rs.2,200/- was to be settled by the 1st Respondent/1st Defendant (Subramanian). Further, the 1st Plaintiff in order to settle his urgent debts and also for meeting out the family expenses, on 24.12.1982 received a sum of Rs.1,355/- from the 1st Respondent/1st Defendant. Also, it is mentioned that when the 1st Plaintiff was called by the 1st Respondent/1st Defendant, he would come and register the Sale Deed. Finally, in the schedule portion, it is mentioned that the lands to an extent of 0.59 < cents in the survey numbers mentioned therein were sold through an oral sale.
43.At this stage, this Court points out that a period of limitation prescribed for the relief of specific performance is three years which runs from the date when the cause of action has accrued.
44.Further, in a suit for specific performance, the evidence of proof of agreement must be absolutely clear as per the decision in Ganesh Shet V. Dr.C.S.G.K.Setty and othres, AIR 1998 Supreme Court 2216.
45.In a suit for specific performance, a person must aver and establish that he has performed or has always been ready and willing to perform the essential terms of contract which are to be performed by him. Added further, as per Article 54 of the Limitation Act, 1963, a suit for specific performance of contract is to be filed within three years period from the date fixed for performance or, if no such date is fixed, when the Plaintiff has noticed that performance is refused.
46.Article 54 of the Limitation Act, 1963 runs as follows:
For Specific Performance Three Years The date fixed for the of a contract. Performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
47.It cannot be lost sight of that the phrase occurring in the third column of Article 113 of the Limitation Act, 1908, 'the date fixed for performance' must be not only a date which can be identified without any doubt as a particular point of time, but it should also be a date which the parties intended should be the date when the contract could be performed as per the decision in Lakshminarayana Reddiar V. Singaravelu Naicker and another, AIR 1963 Madras 24 (V 50 C 10).
48.If the date is to be ascertained depending upon a event which is not certain to happen, then, the first part of Article 54 of the Limitation Act is not applicable. In such an eventuality, it is only the latter part of Article 54 of the Limitation Act will apply, by treating it as a case in which no date is fixed for performance and the limitation will be three years from the date when the Plaintiff has notice that performance has been refused.
49.Continuing further, Section 54 of the Transfer of Property Act, 1882 provides that such a contract of sale does not create as in English Law any equitable estate in immovable property which is the subject matter of contract as per the decision of the Hon'ble Supreme Court in Soni Lalji Jetha (deceased) through his L.Rs. V. Soni Kalidas Devchand and others, AIR 1967 Supreme Court 978.
50.The limitation in case of suit for specific performance of contract starts from the date of refusal to perform part of the contract. The suit filed beyond three years period is barred by limitation as per the decision of the Hon'ble Supreme Court in Smt.Shakuntala V. Narayan Gundoji Chavan and others, AIR 2000 Supreme Court 3621.
51.The act of performance must be such as to referable to a contract. If there is no concluded contract between the parties, then, a decree for specific performance cannot be ordered by a Court of Law, as opined by this Court.
52.A bare perusal of Article 54 of the Limitation Act, 1963 clearly points out that the specific performance of a contract refers to its actual execution as per terms and conditions. In a suit for specific performance, there ought to be a concluded contract. The obligations in a concluded contract undoubtedly operate in personam. More importantly, the contract must be capable of being enforced by either of the parties against the other person. From the act/conduct of parties, it can be presumed that time is not the requisite essence of contract and further, when there is also no emphatic refusal to perform, in that event, it is a simple matter of protracting and gaining the time, as opined by this Court.
53.However, if no period/time is fixed by the contract, the same cannot be determined by a deed/document de hors the contract. Also that the time cannot be fixed unilaterally. In law, a suit for specific performance is to be filed within a reasonable time and if the suit is filed beyond time, it ought to be dismissed on that basis. The reason being a party is not expected to remain in a deep slumber for long number of years and during the interregnum, there is a possibility of the character of the property being changed and also the price/value of the property/properties spiralling at a rocket speed.
54.In this connection, this Court deem it appropriate to point out the following decisions:
(a)In the decision of the Hon'ble Supreme Court in Parakunnan Veetill Joseph's Son Mathew V. Nedumbara Kuruvila's Son and others, AIR 1987 Supreme Court 2328, it is held as follows:
"S.20 preserves judicial discretion to Courts as to decreeing specific performance. The Court should meticulously consider all facts and circumstances of the case. The court is not bound to grant specific performance merely because it is lawful to do so. The motive behind the litigation should also enter into the judicial verdict. The court should take care to see that it is not used as an instrument of oppression to have an unfair advantage to the plaintiff."
(b)In Veerayee Ammal V. Seeni Ammal, AIR 2001 Supreme Court 2920 at page 2922 & 2923 at paragraph 11, it is observed as follows:
"11.When, concededly, the time was not the essence of the contract, the appellant-plaintiff was required to approach the Court of law within a reasonable time. A Constitution Bench of this Hon'ble Court in Chand Rani (Smt.) (dead) by LRs. v. Kamal Rani (Smt.) (dead) by LRs. (1993 (1) SCC 519 held that in case of sale of immovable property there is no presumption as to time being the essence of the contract. Even if it is not of the essence of contract, the Court may infer that it is to be performed in a reasonable time if the conditions are (i) from the express terms of the contract; (ii) from the nature of the property; and (iii)from the surrounding circumstances, for example, the object of making the contract. For the purpose of granting relief, the reasonable time has to be ascertained from all the facts and circumstances of the case."
(c)In Adcon Electronics Private Limited V. Daulat and another, AIR 2001 Supreme Court 3712, it is laid down as follows:
"In a suit for specific performance of contract for sale of immovable property containing stipulation that on execution of the sale deed the possession of the immovable property will be handed over to the purchaser, it is implied that delivery of possession of the immovable property is part of the decree of specific performance of contract. But in view of the mandate of sub-section (2) of S.22 of Specific Relief Act no relief under Cls. (a) and (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed. Thus it follows that no Court can grnat the relief of possession of land or other immovable property, subject-matter of the agreement for sale in regard to which specific performance is claimed, unless the possession of the immovable property is specifically prayed for.
Therefore, when in a suit for specific performance of agreement for sale of the suit property relief of delivery of the suit property has not been specifically claimed as such, it cannot be treated as 'suit for land.' In its true sense a suit simpliciter for specific performance of contract for sale of land is a suit for enforcement of terms of contract. The title to the land as such is not the subject matter of the suit."
(d)In Mohan Lal (deceased) through his LRs. Kachru and others V. Mira Abdul Gaffar and another, AIR 1996 Supreme Court 910 at page 911, in paragraph 6, it is observed as follows:
"6.Even otherwise, in a suit for possession filed by the respondent, successor-in-interest of the transferor as a subsequent purchaser, the earlier transferee must plead and prove that he is ready and willing to perform his part of the contract so as to enable him to retain his possession of the immovable property held under the agreement. The High Court has pointed out that he has not expressly pleaded this in the written statement. We have gone through the written statement. The High Court is right in its conclusion Except vaguely denying that he is not ready and willing to perform his part, he did not specifically plead it. Under Section 16(c) of Specific Relief Act, 1963, the plaintiff must plead in the plaint, his readiness and willingness from the date of the contract till date of the decree. The plaintiff who seeks enforcement of the agreement is enjoined to establish the same. Equally, when transferee seeks to avail of Section 53-A to retain possession of the property which he had under the contract, it would also be incumbent upon the transferee to plead and prove his readiness and willingness to perform his part of the contract. He who comes to equity must do equity. The doctrine of readiness and willingness is an emphatic way of expression to establish that the transferee always abides by the terms of the agreement and is willing to perform his part of the contract. Part performance, as statutory right is conditioned upon the transferee's continuous willingness to perform his part of the contract in terms convenanted thereunder."
(e)In Mademsetty Satyanarayana V. G.Yelloji Rao and others, AIR 1965 Supreme Court 1405 at page 1410 in paragraph 11, it is held as follows:
"11.The result of the aforesaid discussion of the case law may be briefly stated thus: While in England mere delay or laches may be a ground for refusing to give a relief of specific performance, in India mere delay without such conduct on the part of the plaintiff as would cause prejudice to the defendant does not empower a Court to refuse such a relief. But as in England so in India, proof of abandonment or waiver of a right is not a pre-condition necessary to disentitle the plaintiff to the said relief, for if abandonment or waiver is established, no question of discretion on the part of the Court would arise. We have used the expression "waiver" is contractual, and may constitute a cause of action: it is an agreement to release or not to assert a right" ; see Dawson's Bank Ltd. v. Nippon Menkwa Kabushiki Kaisha, 62 Ind App 100 at p.108: (AIR 1935 PC 79 at p.82). It is not possible or desirable to lay down the circumstances under which a Court can exercise its discretion against the plaintiff. But they must be such that the representation by or the conduct or neglect of the plaintiff is directly responsible in inducing the defendant to change his position to his prejudice or such as to bring about a situation when it would be inequitable to give him such a relief."
(f)In Md.Mohar Ali V. Md.Mamud Ali and others, AIR 1998 Gauhati 92 at page 95, in paragraphs 14 and 15, wherein it is observed as follows:
"14.In the latest decision it has been stated that the court in decreeing the suit for specific performance of contract must take into account that the suit must be filed within reasonable time and if the suit is filed beyond the reasonable time, it should be dismissed on that ground alone inasmuch as it cannot be expected that the party will sit tight for all these years and in the meantime the character of the property is changed, value of the property will go up. All these factors must be taken into account as pointed out by the apex Court.
15.In view of that matter as indicated above I hold that this second appeal is to be allowed for inordinate delay in filing the suit which I thereby do. Accordingly, this second appeal is allowed and the judgments of both the courts below are set aside and the suit is dismissed without costs."
(g)In Mahadev and others V. Tanabai, (2004) 5 Supreme Court Cases 88, the Hon'ble Supreme Court has held that 'Merely because suit for specific performance at instance of vendee has become barred by limitation or that plea of acquisition of title by adverse possession has been negatived and that possession was therefore illegal, held, not by itself enough to deny benefit of plea under S.53-A.'
(h)In Shrimant Shamrao Suryavanshi and another V. Pralhad Bhairoba Suryavanshi (dead) by LRs. and others, (2002) 3 Supreme Court Cases 676, it is observed that 'the Law of limitation does not apply to a plea taken in defence by defendant even though that defence as a claim made by him may not be enforceable in court being barred by limitation.'
55.It is the contention of the Respondents that the trial Court as well as the First Appellate Court have come to a conclusion that Ex.B.1-Agreement dated 24.12.1982 is a genuine one and that on the date of Ex.B.1-Agreement, the entire sale consideration has been paid and further, the concurrent finding of fact rendered by the Courts below may not be interfered with by this Court.
56.On behalf of the Respondents, a specific plea is taken that before the trial Court as well as the First Appellate Court question of limitation has not been raised. However, the aspect of limitation has been dealt with by the Courts below holding that the suit O.S.No.69 of 1993 has been held to be in time. Consequently, the plea of limitation that the limitation commences from 24.12.1982 is negatived.
57.Repelling the contention of the Respondents, the Learned Counsel for the Appellants submits that D.W.1 (A.Subramanian in O.S.No.477 of 1992), in his cross examination, has deposed that in Ex.B.1-Agreement, it is written as 'oral land sale' and also that possession has been handed over in pursuance of the oral sale. Moreover, it is stated that even if it is not registered, it will be construed as 'sale'. Also, D.W.1 has added in his evidence that Ex.B.1 has not been registered and that he called his brother-Boopalan (Plaintiff in O.S.No.477 of 1992) to register the Ex.B.1 document, but his brother has refused and from the date of sale agreement viz., 24.12.1982, he called his brother for one or two years to get the document registered, but he has not issued any written notice to his brother in this regard and also that no complaint has been lodged against his brother, but he made a complaint before the Panchayat as regards Ex.B.1 document.
58.Taking inspiration from the evidence of D.W.1 that from the date of agreement, one or two years he called his brother to register the Ex.B.1-document, but his brother has not acceded to his request and refused to register the same, the Learned Counsel for the Appellants contends that Ex.B.1-Agreement is dated 24.12.1982 and giving laxity upto two years viz., from the year 1984 atleast within three years viz., 1987, the suit for specific performance ought to have been filed by the Respondents (deceased Plaintiff in O.S.No.69 of 1993). But in the instant case, the suit has been filed only during the year 1993 and therefore, it is clearly barred by limitation.
59.Furthermore, the Learned Counsel for the Appellants take a categorical plea that question of law can be raised at any point of litigation, although the same need not be pleaded. In this connection, it is to be pointed out that in the Written Statement in O.S.No.69 of 1993, specific plea of limitation has not been raised. However, a plea has been taken that the alleged agreement is a fabricated, forged one.
60.The First Appellate Court, in paragraph 17 of its common Judgment in A.S.Nos.21 and 22 of 1999, has observed that after issuance of notice Ex.A.1 dated 01.11.1992 by Boopalan (Plaintiff in O.S.No.477 of 1992), the limitation begins and viewed in that perspective, the suit O.S.No.69 of 1993 has been filed within three years and therefore, the contra plea taken on behalf of the other side viz., Appellants is not to be accepted and is rejected.
61.In Ex.B.1 document styled as 'Oral Sale', no time limit is stipulated. Even though the nomenclature of Ex.B.1 document is mentioned as 'oral sale deed' for Rs.3,555/-, on going through the recitals of the entire document, this Court comes to an inevitable conclusion that what remains to be performed as regards the said document is only registration, execution of sale deed and payment of stamp duty.
62.It is a well known fact that if an immovable property is worth more than Rs.100/-, it has to be compulsorily registered under Section 54 of the Transfer of Property Act read with 17 of the Indian Registration Act, 1908. Even though in Ex.B.1 captioned as 'Oral Sale', there is a recital in Tamil that in case, if registration is not possible, there is no objection to enjoy the property as Sale, yet, on reading the entire content and purport of Ex.B.1, it is held by this Court that it is only a Sale Agreement.
63.Although on the side of Appellants/Defendants (in O.S.No.69 of 1993), it is projected that the deceased Boopalan (1st Defendant in O.S.No.69/1993 and Plaintiff in O.S.No.477/1992) had not executed any agreement viz., Ex.B.1 dated 24.12.1982 and further that the said agreement is a fabricated and forged one, no endeavour has been made on their part to file any interlocutory application before the trial Court to send Ex.B.1-Agreement for an Expert opinion as required under the Indian Evidence Act, in the considered opinion of this Court. Although Section 73 of the Indian Evidence Act, a comparison of a signature, writing or seal with others admitted or proved can be made by a Court of Law and that apart, a Judge has got power to compare the signature/writing through his naked eyes, yet, such a comparison is hazardous one and not the safer method, as opined by this Court. In the instant case, on the side of the Appellants, it is not established that Ex.B.1-Agreement is a forged one.
64.It is to be pertinently pointed out that Section 91 of the Indian Evidence Act, 1872 applies to bilateral and unilateral documents, in the considered opinion of this Court. Section 92 of the Indian Evidence Act is confined to bilateral documents only. Sections 92 and 91 of the Indian Evidence Act deal with the question of conflict between oral and documentary evidence. When the parties/individuals have put up their mutual engagement into writing, it is reasonable to presume/infer that they have introduced into the written document every material terms and circumstances.
65.Indeed, inspite of the recitals in a sale deed regarding payment of consideration of money oral evidence to show that non-payment is admissible as per decision P.C.Chanja V. E.S.I. Corporation (1980) 1 CHN 117.
66.Section 91 of the Indian Evidence Act deals with exclusiveness of documentary evidence. Whereas Section 92 of the Indian Evidence Act deals with conclusiveness as also inclusiveness of such evidence.
67.In case of validity of a document is impeached, the Court is not bound by the 'Paper expression' of the parties and may proceed to enquire into the real transaction between the parties as per decision in Benimadhab V. Sadasook 2 CWN at page 306 (FB).
68.An oral evidence is held admissible on the face of money receipt to show that the same is fictitious inasmuch as money was paid as per the decision in Chukum V. Shambu AIR 1935 All 346.
69.This Court deem it appropriate to cite the decision in Dobell V. Stevens 3 B & C 623 : 107 ER at page 864 whereby and whereunder it is held that 'Parol evidence is admissible to show that writing is not always a fully transaction and evidence may be adduced to establish fraud or any other matter affecting the validity of a document'.
70.In regard to the payment of Rs.1,300/- towards discharge of loan made by D.W.1 (Plaintiff in O.S.No.69 of 1993/1st Defendant in O.S.No.477 of 1992), there is no proof to the satisfaction of this Court. Even in the evidence of D.W.1 (A.Subramanian), firstly, he has stated that his brother Boopalan, because of his heavy indebtedness, has demanded money from him and that Boopalan received a sum of Rs.1,300/- from him etc.
71.In fact, D.W.2 in his evidence has deposed that for the 1st Plaintiff (in O.S.No.477/1992) a sum of Rs.1,355/- has been paid and that for the balance amount for the loan contracted by his brother, the loan taken from Katpadi Pappa for Rs.500/- and Motoor Sorupan Gounder's loan of Rs.400/- were shown as mortgage amount due to be paid by them and that the said loan had been discharged. Except the Ipsi Dixit of D.W.2 to the effect that the loan for a sum of Rs.500/- and Rs.400/- mentioned above were paid and discharged, it is to be pointed out that there was no proof of acknowledgement/endorsement anywhere in Ex.B.1 document in writing for the discharge of the aforesaid sums. As such, the oral evidence of D.W.2 in this regard is not convincing to satisfy the judicial conscience of this Court and consequently, the same is not accepted.
72.As a matter of fact, D.W.3 has not spoken anything about the loan of Rs.500/- due to be paid to Katpadi Pappa and another loan of Rs.400/- to Sorupan and also he has not stated anything about the payment of Rs.1,355/- to the Plaintiff in O.S.No.477 of 1992 (Boopalan). In short, on the side of the 1st Respondent (Plaintiff in O.S.No.69/1993 and the 1st Defendant in O.S.No.477/1992), it is not established that all the amounts mentioned in Ex.B.1 document were duly paid or discharged to the satisfaction of this Court.
73.Before the trial Court, Sorupan, Pappa of Katpadi, whose debts/loan are directed to be discharged/settled by Subramanian (Plaintiff in O.S.No.69 of 1993) as per direction of Boopalan (Defendant in O.S.No.69 of 1993), were not examined and also not proved to the satisfaction of this Court on behalf of the Plaintiff (later deceased).
74.Inasmuch as the suit O.S.No.69 of 1993 has not been filed by the Plaintiff-Subramanian within one or two years viz., atleast from the year 1982; within a period of three years limitation viz., during the year 1987 and the said suit filed in the year 1993 only, it is held by this Court that suit O.S.No.69 of 1993 is clearly barred by limitation, by not filing the suit within three years from the date of denial of execution and refusal to execute the Sale Deed in pursuance of the suit agreement. Since the suit is barred by limitation, the Respondents are not entitled to claim even for refund of any amount mentioned in the Ex.B.1-Agreement dated 24.12.1982. Accordingly, the Substantial Question of Law No.1 in S.A.No.1640 of 2003 is so answered.
75.In regard to the readiness and willingness to perform his part of the contract, Section 16(c) of the Specific Relief Act, it is to be pointed out that although in Ex.B.1-Agreement time has not been specified, it can only mean that a reasonable time. Further, a reasonable time does not mean that there is no breach of contract. The necessity to wait for a reasonable time arises, when the Equity Court does not regard time to be the gist to make a time, the essence of contract by issuing notice to a purchaser, if the purchaser is found to be delaying the performance of the contract. A contract is to be performed in a reasonable time without any latches on the part of an individual claiming the relief of specific performance. The conditions in the contract and the encircling circumstances ought to be taken into account whether or not time is the essence of the contract.
76.In the instant case on hand, admittedly O.S.No.69 of 1993 has not been filed by the Plaintiff-Subramanian (later deceased) within a period of three years from the date of his refusal to register the Sale Deed viz., from 1984 1987. The suit has been filed only during the year 1993 after lapse of 9 years from 1984. The delay is so evident that there appears to be an abandonment of contract on the part of the Plaintiff-Subramanian. Because of latches on the part of the Plaintiff (Subramanian) in O.S.No.69 of 1993, this Court holds that it amounts to waiver, abandonment or acquiescence. In view of the fact that there is no acceptable/convincing proof on the part of the Plaintiff (Subramanian) (1st Defendant in O.S.No.477/1992) to prove that he has discharged the loan amount of Rs.400/- to one Sorupan, the loan amount of Rs.500/- paid to Pappa of Katpadi and that other sums alleged to have been paid as mentioned in Ex.B.1 document, for all these reasons, this Court unhesitatingly comes to the conclusion that the Plaintiff Subramanian in O.S.No.69 of 1993 has not proved his readiness and willingness to perform his part of the contract to the satisfaction of this Court and the Substantial Question of Law No.2 is answered.
The Contentions, Discussions and Findings on Substantial Question of Law No.1 in S.A.No.1641/2003:
77.The Appellants (Legal Representatives of the deceased Plaintiff Boopalan) submits that in between deceased Boopalan and the deceased 1st Respondent/1st Defendant, one Venkatesan and Shanmugam as brothers, they constituted members of the Hindu joint family and divided their joint family properties as per Family Arrangement dated 10.12.1978 and in the said partition, the plaint schedule properties (in O.S.No.477 of 1992) and other properties were allotted to the deceased 1st Plaintiff (Boopalan) and that the deceased 1st Plaintiff was in possession and enjoyment of the suit properties in his own right and title. The 1st Plaintiff (since deceased), during his life time, filed a suit praying for the relief of declaration of title in regard to the suit properties and consequent upon his death, the Appellants have been brought on record as his Legal Representatives. They also prayed for the relief of permanent injunction restraining the Defendants, their agents, servants etc. from in any manner interfering with the 1st Plaintiff's peaceful possession and enjoyment of the suit properties.
78.The Appellants have also pleaded in the Plaint in O.S.No.477 of 1992 to the effect that the Respondents/Defendants have not been in possession of the suit properties and that the deceased 1st Plaintiff paid kists, raised crops and enjoyed the suit properties.
79.The Respondents take a plea by stating that the deceased 1st Plaintiff contracted debts and requested the 1st Respondent/1st Defendant (deceased) to discharge the loan amount of Rs.2,200/- (debts due to the 1st Respondent/1st Defendant was Rs.1,300/-, Rs.400/- to be paid to Sorupan and Rs.500/- to one Pappa of Katpadi in December 1982) and that the 1st Respondent/1st Plaintiff offer to sell the suit properties at a price of Rs.60/- per cent of land and accordingly, entered into a sale agreement-Ex.B.1 dated 24.12.1982 to and in favour of the 1st Respondent/1st Defendant.
80.The Respondents/Defendants projected a plea that by means of Ex.B.1-Sale Agreement dated 24.12.1982, the 1st Respondent/1st Defendant (later deceased) was put in possession of the suit properties as part performance of the contract of sale and that the 1st Plaintiff (later deceased) was not in possession of the suit properties and hence, the relief of injunction is not maintainable in law.
81.In Ex.B.2-Lawyer's Notice dated 01.11.1992 issued by the 1st Plaintiff (deceased) and addressed to the 1st Respondent/1st Defendant and four others, it is mentioned, among other things, that they do not have any manner of right, title or interest over the schedule properties and further, they have been warned not to attempt trespass and to give disturbance to the peaceful possession and enjoyment of the schedule properties mentioned therein.
82.The Learned Counsel for the Appellants submits that Exs.B.4 to B.20-Land Tax Receipts relate to some other properties and not the schedule properties and that no adangal and kists receipts have been filed. Inasmuch as D.W.3 has deposed in his evidence that he does not know as to who are the persons cultivating the lands, the appellants are entitled to obtain the relief of declaration of their title in respect of the suit properties and also the relief of permanent injunction because of the fact that the 1st Plaintiff (later deceased) paid kists receipts as evidenced from Exs.A.4 to A.11.
83.In the instant case on hand, there is no proof for handing over possession by Boopalan (Plaintiff in O.S.No.477/1992 and the 1st Defendant in O.S.No.69/1993) because of the fact that intermittent receipts from Exs.A.4 to A.11 have been filed on the side of the Plaintiffs in O.S.No.477 of 1992.
84.It is not out of place for this Court to make a significant mention that mere production of receipts Exs.B.4 to B.20 on the side of the 1st Respondent/Plaintiff (in O.S.No.69 of 1993) will not establish conclusively that Boopalan (Plaintiff in O.S.No.477/1992 and the 1st Defendant in O.S.No.69/1993) has handed over possession of Ex.B.1 properties. The production of Exs.A.4 to A.11-Kists Receipts in the name of Boopalan as intermittent documents is not fatal or a defective one. Moreover, taking into consideration of the evidence adduced by parties in both the suits, the Appellants (Plaintiffs in O.S.No.477/1992) have a better and acceptable evidence/better features of the case in their favour compared to that of Respondents (Defendants in O.S.No.477/1992) and therefore, there are no tangible reasons to reject the Exs.A.4 to A.11-Kists Receipts and in fact, they are accepted by this Court.
85.Proceeding further, P.W.1 (Plaintiff in O.S.No.477 of 1992), in his evidence, has deposed that Ex.A.3-Patta relates to the suit properties and Exs.A.4 to A.11 are the kists receipts paid by him. D.W.1, in his evidence, has stated that Exs.B.14 to B.20 are the seven land tax receipts paid by him in respect of the suit properties. Though on the side of the Respondents (Defendants in O.S.No.477/1992), before the trial Court, Exs.B.4 to B.20-Land Tax Kists Receipts have been filed, to establish that they are in occupation and enjoyment of the suit properties, this Court is of the considered view that the Respondents have not made any endeavour to correlate the said kists receipts to that of the suit properties and that too when the Appellants have taken a categorical plea that they do not relate to the suit properties and it refers to some other property.
86.It is to be remembered that burden of proof is not static under the Indian Evidence Act. The pendulum shifts from one side to another more often than not. To put it differently, it is not established on the part of the Respondents, by any satisfactory evidence to this Court, that they are enjoying the suit properties. At this stage, this Court aptly points out that on the side of Respondents (Defendants in O.S.No.477/ 1992), no kists receipts have been filed beginning from the year 1982 (after the execution of Ex.B.1-Agreement on 24.12.1982) till February 1987, which is clearly an adverse circumstance which goes against them, in the considered opinion of this Court. Even P.W.2, the wife of the deceased Plaintiff (Boopalan), in her evidence, has clearly deposed that it is not correct to state that Exs.A.4 to A.11-Kists Receipts, they do not reflect their enjoyment of suit properties.
87.Already, this Court has held in S.A.No.1640 of 2003 that the Respondents are not entitled to get the relief of specific performance and also this Court has held that the said suit for specific performance filed by the Respondents/Plaintiffs in O.S.No.69 of 1993 is barred by the plea of limitation.
88.In the present case on hand, it is not in dispute that the suit properties have fallen to the share of the 1st Respondent/Plaintiff (since deceased) as per the Family Arrangement dated 10.12.1978. Further, apart from the suit properties, the other properties have also been allotted in the family arrangement/partition dated 10.12.1978. Inasmuch as the Appellants are entitled to claim the relief of their declaration of title in respect of the suit properties in O.S.No.477/1992 on the file of the trial Court and in view of the fact that they have established that they are in possession and enjoyment of the suit properties and also taking note of the fact that the Respondents have no manner of right or title or interest in this schedule mentioned properties, this Court holds that the contra findings rendered by the trial Court in O.S.No.477 of 1992 as well as the First Appellate Court in A.S.No.22 of 1999 are unsustainable in the eye of law. Accordingly, the Substantial Question of Law No.1 is answered in favour of the Appellants. Consequently, both the Second Appeals succeed.
In the Result, The Second Appeal No.1640 of 2003 is allowed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the trial Court in O.S.No.69 of 1993 dated 26.03.1999 and the Judgment and Decree of the First Appellate Court in A.S.No.21 of 1999 dated 11.09.2001 are set aside by this Court for the reasons assigned in this Second Appeal. Resultantly, the suit O.S.No.69 of 1993 filed by the Plaintiff-Subramanian (later deceased) is dismissed but without costs.
The Second Appeal No.1641 of 2003 is allowed, leaving the parties to bear their own costs. Consequently, the Judgment and Decree of the trial Court in O.S.No.477 of 1992 dated 26.03.1999 and the Judgment and Decree of the First Appellate Court in A.S.No.22 of 1999 dated 11.09.2001 are set aside by this Court for the reasons assigned in this Second Appeal. Resultantly, the suit in O.S.No.477 of 1992 filed by the Plaintiff-Boopalan (later deceased) and prosecuted by the Appellants as his Legal Representatives, is decreed as prayed for but without costs.
06.09.2012 Index : Yes Internet : Yes Sgl To
1.The Subordinate Judge, Ranipet, Vellore District.
2.The District Munsif, Ranipet.
M.VENUGOPAL, J.
Sgl JUDGMENT IN S.A.Nos.1640 and 1641 of 2003 06.09.2012