Madras High Court
N. Bhavanibai vs Meerabai on 23 April, 2013
Author: T. Mathivanan
Bench: T. Mathivanan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE:23.4.2013 CORAM THE HONOURABLE MR.JUSTICE T. MATHIVANAN A.S.No.492 of 2010 1. N. Bhavanibai 2. B. Vimalabai 3. N. Harisingh 4. N. Rameshsingh 5. N. Balajisingh 6. N. Raj ... Appellants/Defendants 1,2,4-6 and 8 Versus 1.Meerabai ..Respondent/plaintiff 2.Babusingh 3.Kalavathi ..Respondents/Defendants 3 and 7 Prayer: Appeal is filed under section 96 C.P.C. against the judgment and decree, dated 29.8.2008 and made in O.S.No.10 of 2006 on the file of the learned Principal District Judge, Cuddalore. For Appellant : Mr.V.Raghavachari For Respondent No.1 : Mr. R.Gururaj For Respondent No.2 : No appearance For Respondent No.3 : Mrs.R.Poornima JUDGMENT
The judgment and decree, dated 29.8.2008 and made in O.S.No.10 of 2006 on the file of the Principal District Judge, Cuddalore are under challenge in this regular appeal.
2. The appellants herein are the defendants 1, 2, 4, 6 and 8 in the suit, whereas the first respondent is the plaintiff and the respondents 2 and 3 are the defendants 3 and 7.
3.The first respondent/plaintiff is the wife of the second respondent/3rd defendant. The first appellant/first defendant herein is the wife of one Narayan Singh and the remaining appellants, viz., appellants 2 to 6/defendants 2, 4, 5, 6 and 8 and the respondents 2 and 3/defendants 3 and 7 are the children of the said Narayan Singh.
4. The first respondent herein has filed the said suit seeking the following reliefs:-
a. For specific performance directing the defendants to execute a sale deed in respect of the suit property in favour of the plaintiff and to register the sale deed after receiving the balance sale consideration;
b. on their failure to do so within the time stipulated by the court a sale deed may be executed by the court in respect of the suit property as if executed by the defendants and have it registered;
c. if necessary the plaintiff may be put in possession of the suit property either symbolically or through the court.
e. restraining the defendants 1, 2 and 4 to 8 their men, agents and any person claiming under them by a decree of permanent injunction from in any manner interfering with the plaintiff's peaceful possession and enjoyment of the suit property;
Alternatively:-
f. directing the defendants to pay a sum of Rs.1,50,000/- received as advance with interest at 12% p.a. from the date of suit till the date of realisation to the plaintiff; g. a charge may be created over the suit property towards the decree for refund of advance; and also for costs.
5. The suit was contested by the appellants 1 to 4 and 6 as well as by the third respondent herein/defendants 1, 2, 4, 5, 7 and 8. Eventually, suit was decreed as prayed for on 29.8.2008.
6. Being aggrieved by the impugned judgment and decree, the appellants being the defendants 1, 2, 4 to 6 and 8 stand before this Court with this appeal.
7. For easy reference as well as for the sake of convenience, the character of the parties to the suit may hereinafter be referred to as it is in the suit.
8. The suit property is a house property. It was originally belonged to one Narayan Singh, who is none other than the husband of the first defendant (first appellant). The said Narayan Singh died intestate leaving behind him the defendants as his legal heirs. As stated herein before the plaintiff (R1) is the wife of the third defendant. They have been residing in the suit property for more than 25 years. The fifth defendant was occupying the ground floor, but subsequent to the agreement of sale he had vacated the same.
9. The defendants had decided to dispose of the house property. The third defendant being the husband of the plaintiff and also a co-sharer put his proposal to purchase the property. The plaintiff and the third defendant had offered an highest price and hence, it was agreed to be sold to the plaintiff. The sale price was fixed at Rs.5,50,000/-. That on 5.4.2005, an agreement of sale was reduced into writing on stamp papers specifying the sale consideration. On the date of the agreement of sale, the plaintiff had paid a sum of Rs.50000/- and a further sum of Rs.1,00,000/- was agreed to be paid on 17.8.2005. It was also agreed to complete the transaction within 248 days.
10. The defendants 6 and 8 had undertaken to sign the agreement of sale. However, they did not turn up at the time of execution of the sale agreement. As agreed by the plaintiff, she had paid a sum of Rs.1,00,000/- on 17.8.2005. The receipt of this amount was endorsed and signed by the defendants 1, 2, 3 and 5.
11. Ever since 2.3.2006 the defendants excepting the third defendant have been attempting to evict the plaintiff forcibly from the suit property and therefore, the plaintiff was constrained to file the suit for specific performance. 11a. Though the defendants 6 and 8 have not signed in the agreement of sale they have agreed to sell the property and only on their undertaking the sale agreement was drafted. In any event , in case, the court comes to the conclusion that the defendants 6 and 8 are not bound to execute the sale, then the plaintiff is ready to purchase the respective shares of the remaining defendants. By way of abundant caution, the plaintiff seeks the relief of refund of sale consideration with a charge over the property. If necessary, the relief of possession may also be given which is consequential in nature.
12. The written statement filed by the fourth defendant has been adopted by the defendants 1, 2 and 5. a. In their written statement they have contended that the contract is not concluded between the parties as the alleged agreement of sale is incomplete. There is also no consensus-ad-idem to execute the sale agreement in favour of the plaintiff. The terms of the sale agreement are uncertain. There is no mutual agreement between the parties and hence, the contract is not valid. An incomplete contract cannot be enforced before a court of law. The plaintiff had not made any payment on the date of agreement nor she had made any subsequent payment also. The endorsement with regard to the payment on the sale agreement is neither true nor enforceable. Equally, the terms and conditions stipulated in the sale agreement are also not enforceable. 13. As per the sale agreement, time is the essence of the contract. The plaintiff was and is not in a position to pay the alleged balance amount as stipulated in the sale agreement. Hence, the contract of sale could not be legally enforced. The plaintiff has since lost all her rights, if any, by the efflux of time and having not performed her part of contract, is not entitled to the discretionary relief of specific performance. She is also not entitled to get back the alleged balance amount and equally she is also not entitled to purchase the suit property either as a whole or in part. Besides this, she is also not entitled to the relief of permanent injunction as she is not in possession of the suit property.
14. The 7th defendant in his written statement has admitted that he had signed the agreement of sale and that she had also received her due share of the sale consideration. She has also stated that she is prepared to execute the sale in respect of her share at any time. The 8th defendant in his written statement has stated that he is also prepared to sell his share, provided he is given his due share in the sale proceeds. However, he has contended that having not performed his part of contract of sale, the plaintiff is not entitled to the discretionary relief of injunction. The defendants 3 and 6 have not chosen to contest the suit as they remained ex parte.
15. Based on the material proposition of facts as well as on the basis of pleadings of the parties to the suit, the trial court has formulated as nearly as six issues for the better adjudication of the suit.
16. The plaintiff had examined herself as PW 1. During the course of her cross-examination Exs.A1 to A10 were marked. On the other hand the 4th and the 5th defendants had examined themselves as DW 1 and DW 2 respectively. No documentary evidence was adduced on behalf of the defendants.
17. On appreciation of the evidences both oral and documentary, the learned trial judge had proceeded to decree the suit on 29.08.2008, directing the plaintiff to deposit the balance of sale consideration of Rs.4 lakhs into Court on or before 29.09.2008. On such deposit the defendants 1 to 8 were directed to execute and register the sale deed in favour of the plaintiff in respect of the suit properties on stamp papers which may be produced by the plaintiffs within two weeks. On failure of the defendants 1 to 8 to come forward and register the sale deed in respect of the suit property, the plaintiff be at liberty to execute the sale deed through the process of the Court and the defendants were directed to pay the plaintiff a sum of Rs.57,408/- towards the costs of the suit.
17a. Being aggrieved by the judgment and decree dated 29.08.2008, the plaintiff has preferred this present appeal.
18. Heard Mr.V.Raghavachari learned counsel for the appellant and Mr.R.Gururaj learned counsel appearing for the first respondent and Ms.R.Poornima, learned counsel for the third respondent. The second respondent remained absent.
19. Mr.V.Raghavachari has based his arguments on the following grounds:- a. The defendants 6 and 8 being the co-owners of the suit property have not subscribed their signatures in the sale agreement under Ex.A1 dated 04.06.2005 and under such circumstance decreeing the suit for specific performance is not maintainable.
b. The sale agreement under Ex.A1 is an inchoate document and it is preposterous to decree the suit as prayed for which seems to be absurd.
c. The first respondent being the appellant has not established her readiness and willingness and therefore, she has lost the competency to get the discretionary relief of specific performance.
Point Nos.1 and 220. There is no dispute with regard to the relationship of the parties to the suit. Admittedly, the plaintiff is the wife of the 3rd defendant. The plaintiff has claimed that on 04.06.2005, the agreement of sale was entered into between herself and the defendants and thereby, the defendant had agreed to sell the suit property i.e., the housing property for a total sale consideration of Rs.5,50,000/-. It is also her case that on the date of agreement itself, she had parted with a sum of Rs.50,000/- to the defendants and she had agreed to pay another sum of Rs.1,00,000/- on 17.08.2005 and accordingly, that amount was paid on 17.08.2005. Apart from this she has also claimed that a time of 240 days was fixed to complete the sale transaction. It is admitted fact that the defendants 6 and 8 who are the appellants 5 and 6 have not subscribed their signature in the sale agreement to Ex.A1 dated 04.06.2005.
21. In this connection Mr.V.Raghavachari the learned counsel appearing for the appellants has argued that since the documents under Ex.A1 sale agreement itself is an incomplete document it did not give any enforceable right to the plaintiff for claiming the relief of specific performance of the contract of sale. During the course of his arguments, he has drawn the attention of this court to paragraph 6 and 7 of the plaint, wherein the plaintiff herself has admitted that on 17.08.2005, she had paid a sum of Rs.1 lakh as agreed and this was received, endorsed and signed by the defendants 1,2,3 and 5. In this connection the learned counsel has pointed out that the very admission of the plaintiff itself would go to show that excepting the defendants 1,2,3 and 5, the remaining defendants had not received the amount of Rs.1 lakh.
22. Mr.V.Raghavachari, learned counsel for the appellant has also drawn the attention of this court to paragraph 9 of the plaint wherein the plaintiff herself has admitted that the defendant 6 and 8 had not signed the agreement of sale, but they had agreed to sell the property and then only the agreement of sale was provided. In this connection he would further submit that there was no oral agreement between the plaintiff and the defendants 6 and 8 and that no legal and acceptable evidence was also available to show that the defendants 6 and 8, though not subscribed their signature in the agreement of sale had agreed to sell their share in the suit property in favour of the plaintiffs. Therefore, the question of estoppel in respect of the defendants 6 and 8 would not arise in this case.
23. This court has carefully perused Ex.A1, the alleged agreement of sale dated 04.06.2005. In page nos.1,2,3 and 5 of Ex.A1, excepting the defendants 6 and 8 others have signed. But in Page No.2, beneath the endorsement for having received a sum of Rs.1 lakh, the defendants 4,6,7 and 8 have not signed. Therefore, the learned counsel has maintained that the alleged agreement of sale under Ex.A1 itself would establish the factum that there was no consensus ad idem between the parties to execute the sale agreement. Apart from this he has also maintained that the 8th defendant had never stated that what ever the mother had concluded she would accept for the same and that no supportive evidence was available to substantiate this contention.
24. Mr.V.Raghavachari, in respect of point nos. 1 and 2 has adverted to that Ex.A1, is an inchoate and preposterous one and therefore, granting the decree based on this document was nothing but absurd. He has also pointed out that there did not exist any agreement between the plaintiff and the defendants 6 and 8 and hence, the decree directing them to execute the sale deed in favour of the plaintiff was inconceivable. Based on the submissions made by Mr.V.Raghavachari, the following two important questions are arisen for the consideration of this court.
1.Whether there is no consensus ad idem between the parties to execute the sale agreement in favour of the plaintiff ?
2.Whether the doctrine of mutuality is absent in this case ?
25. The Latin term consensus ad idem, an agreement of the minds, is used to describe a situation where people fully understand a contract and their role in it. Consensus or agreement on a contract is considered a necessary element for a valid contract in many legal systems, under the argument that people who are not aware of or do not understand a contract cannot be held responsible for it. In a written contract, the presence of clauses spelling out the specifics of the contract is used to show that a consensus ad idem was reached during the development of the contract, as anyone who signs the contract should have read and understood the terms.
26. When people develop a contract, an offer is extended and accepted, and the terms of the offer are worked out. This is the stage where the consensus ad idem comes in, as the parties to the contract discuss the specifics and the details, and focus on developing a contract all are satisfied with. The contract must include adequate consideration, something of value exchanged by all parties, and the capacity for consent must be demonstrated. The final qualification needed for legality is legality of the contract itself; the other conditions may be satisfied, but if the contract is for something illegal, it cannot stand up in court.
27. The doctrine of mutuality means and includes that "in contracts there must always be a consideration offered in order to make them valid. This is sometimes mutual, as when one man promises to pay a sum of money to another in consideration that he shall deliver him a horse, and the latter promises to deliver him the horse in consideration of being paid the price agreed upon. To entitle a contracting party to a specific performance of an agreement, it must be mutual, for otherwise it will not be compelled.
28. On coming to the instant case on hand, in the plaint in paragraph No.4, the plaintiff has stated that she along with her husband viz., the 3rd defendant had offered the highest price and hence, the property was agreed to be sold to the plaintiff. She has also stated that she had offered to purchase the property at a concluded price of Rs.5,50,000/-. In paragraph No.5, she has also stated that on the date of agreement itself she had paid a sum of Rs.50,000/- and in pursuance to her undertaking, she had also paid another sum of Rs.1 lakh on 17.08.2005. In this connection it is imperative on the part of this court to point out that on the second page of Ex.A2, an endorsement appears to have been made with regard to the receipt of Rs.1 lakh on 17.08.2005. Admittedly while D1, D3 and D5 had signed in the endorsement, the defendants 4,6,7 and 8 had not subscribed their signatures and as pointed out earlier D6 and D8 had not subscribed their signatures even in the agreement of sale under Ex.A1.
29. The above facts would lead this court to conclude that there was no consensus ad idem between the parties to execute the sale agreement under Ex.A1 in respect of the suit property. Secondly, this court also would be lead to conclude that the doctrine of mutuality is absent in this case.
30.With regard to the above context, Mr.V.Raghavachari learned counsel for the appellant has argued that there was no privity of contract between the plaintiff and the defendants 6 and 8 and in the absence of any contract between the defendants 6 and 8, the trial court ought not to have directed the defendants 6 and 8, to execute the sale deed in respect of the suit property along with the other defendants in favour of the plaintiff.
31. It is obvious to note here that the defendants 6 and 8 are the co-owners of the property which was allegedly offered to be sold in favour of the plaintiff under Ex.A1. When the defendants 6 and 8 are not parties to the contract of sale under Ex.A1, how they could be directed to execute the sale deed in favour of the plaintiff under a decree of specific performance.
32. In her proof affidavit, the plaintiff (PW1) has stated that even though the defendants 6 and 8 had not signed in the agreement of sale, she is ready to get the sale deed executed in her favour from the remaining defendants in respect of their respective shares in the suit property. She has also stated that since D6 and D8 were out of village at the time of execution of the sale agreement, they were not able subscribe their signatures in the sale agreement. In her cross-examination, the plaintiff has stated that she did not know that the document under Ex.A1 was an incomplete document and that it could not be enforced under law. She has also fairly admitted that in the endorsement with regard to Rs.1 lakh on 17.08.2005, the defendants 1,2,3 and 5 alone had signed and that the remaining defendants had not signed. She has also admitted that she did not evince any interest in getting the signatures from the defendants who had not signed in the agreement of sale. In fact no notice was issued to the defendants prior to the filing of the suit. The plaintiff has specifically stated in her cross-examination that the first defendant being the mother of the defendant had received the entire sale consideration for herself as well as on behalf of other defendants, but no documentary evidence has been adduced to prove this fact.
33. The defendants 4 and 5 have been examined themselves as DW 1 and DW 2 respectively. They have categorically stated that some of the co-sharers have not signed in the agreement of sale and specifically they have admitted that D6 and D8 have not signed in the agreement of sale. They have also conjointly stated that the endorsement with regard to the receipt of Rs.1 lakh on 17.08.2005 was a fabricated one and though it was seen that D1,2,3 and 5 had signed, that amount was not distributed to all the co-sharers. It is also revealed from the testimonies that the first defendant, being their mother had alone arranged to sell the housing property, but the other co-sharers were not willing. In the agreement of sale, only one witness appears to have attested the signatures of the parties but his address has not been clearly written along with his residential address.
34. Normally whatever may be a document it shall be required by law to be attested at least by two witnesses. It is also settled proposition of law that no document shall be used as evidence until one attesting witness at least have been called for proving its execution. In this connection this court would like to seek the assistance of Section 68 of the Indian Evidence Act 1872. It reads as under;
Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.
35. On coming to the instant case on hand, as discussed in the foregoing paragraphs, the agreement in Ex.A1 is apparently not a complete document as the defendants 6 and 8 have not subscribed their signatures and as it revealed from the testimonies of DW 1, 4 and 5, some of the co-sharers were willing to sell the housing property to the plaintiff.
36. Mr.Gururaj learned counsel appearing for the first respondent/plaintiff has argued that the first defendant as well as the 5th defendant had been residing in the ground floor of the suit property even at the time of execution of sale agreement dated 04.06.2005. He has also argued that despite a time limit was given in the agreement of sale i.e., to say 240 days within which the sale transaction ought to have been completed, the defendants never came forward to execute and register the sale deed in favour of the plaintiff. He has also argued that in the written statement filed by the 7th defendant he has stated that he was ready to execute the sale deed and it would go a long way to establish the fact that he had not disagreed with the said sale agreement. During the course of his argument he has also drawn the attention of this court to the testimonies of DW 1 and 2 and in this connection he would submit that the 1st defendant being the mother had not gone to the box to remove the moon shining. He has also stated that DW 1 and 2 had admitted that all the defendants had managed to sell the property. In support of his contention he has placed reliance upon the decision in Trimex International FZE Ltd., Dubai vs. Vedanta Aluminium Ltd., India 2010 AIR (SCW) 909.
37. In this case his Lordship Hon'ble Mr. Justice P.Sathasivam, in paragraph 59 and 60 has obseved about the effect of failure to sign in a document. In paragraph No.59 His Lordship has observed that;
In Shakti Bhog Foods Limited vs. Kola Shipping Limited, (2009) 2 SCC 134, this Court held that from the provisions made under Section 7 of the Arbitration and Conciliation Act, 1996 the existence of an arbitration agreement can be inferred from a document signed by the parties, or an exchange of letters, telex, telegrams or other means of telecommunication, which provide a record of the agreement. In paragraph No.60 His Lordship has also observed that;
It is clear that in the absence of signed agreement between the parties, it would be possible to infer from various documents duly approved and signed by the parties in the form of exchange of e-mails, letter, telex, telegrams and other means of tele-communication.
38. But the rule laid down in the above cited decision cannot be made applicable to the instant case on hand because there is an agreement under Ex.A1 and that agreement is not in a complete shape as some of the defendants have not signed. As observed earlier, it was argued by Mr.V.Raghavachari learned counsel for the appellant that the document under Ex.A1 itself would go to establish the fact that there was no consensus ad idem amongst the parties to the contract and that the Doctrine of Mutuality is absent in this case and for these reasons the sale agreement under Ex.A1 cannot be enforced as it is an avoidable one.
39. Mr.R.Gururaj learned counsel has further submitted that all the co-sharers i.e., all the defendants had agreed to sell the suit property in its entirety for a total sale consideration of Rs.5,50,000/- and that an amount of Rs.1,50,000/- in total was paid in advance and the remaining balance was to be paid to have the sale deed executed and registered. But no co-sharers had agreed to convey their respective undivided share or undivided interest in the suit property. It is not the case of the plaintiff that the agreement of sale was entered into between the parties to sell their undivided share in the suit property. According to the plaintiff, all the defendants have agreed to sell the properties infavour of her and therefore, the agreement of sale was entered into between them under Ex.A1. But the fact remains that D6 and D8 had not subscribed their signatures in the agreement of sale and now since they have also stated that the sale consideration was not distributed amongst the co-sharer and since the sale consideration was not actually distributed to the respective share holders, the question of performance of the part of the contract said to have been undertaken by the defendants would not come into play. Thus, the decisions relied upon by the learned counsel for the first respondent cannot be made applicable to the instant case.
Point No.3 - Regarding readiness and willingness
40. In this connection Mr.V.Raghavachari has argued that in Ex.A1 it has been specifically stated that in case the defendants have not come forward to perform their part of contract by way of execution and registration of sale deed in favour of the plaintiff, the plaintiff shall deposit the remaining balance of sale consideration in the court and initiate legal proceedings for specific performance. But in fact he has to show his readiness and willingness. Virtually, the plaintiff has not deposited the remaining balance of sale consideration into the court and since there was failure on her part it is not open for the plaintiff to approach this court seeking the relief of specific performance against the defendant. In her proof affidavit PW 1 has stated that she had always been ready and willing to perform her part of contract having the balance of sale consideration in her hand. But this was not reflected from her conduct. She has specifically admitted in her cross-examination that barring the amount paid to the defendant by way of advance the remaining balance of sale consideration was not deposited in to the court as per the sale agreement. She has also admitted that she had not issued any notice to the defendants saying that she was ready to pay the remaining balance and the defendants shall come and execute the sale deed in her favour. But in the absence of readiness and willingness which is an important element in a suit for specific performance this discretionary relief of specific performance cannot be granted in favour of the plaintiff.
41. Even the documentary evidences such as Ex.A5 Xerox copy of bank pass book, her insurance policy Ex.A6, Ex.A7 RC book, Ex.A9 and A10, are not sufficient to establish her readiness and willingness to perform her part of contract. 42. Having regard to the related facts and circumstances of the case and considering the submissions made on either side, this Court finds that the appeal deserves to be allowed. Accordingly, the regular appeal is allowed setting aside the judgment and decree of the trial Court and the suit is dismissed. However, there will be no order as to costs.
23.4.2013 rnb/prm Index:Yes.
Internet:Yes.
T. MATHIVANAN, J.
prm/RNB Judgment in A.S. No.492 of 2010 DATE:23.4.2013