Madras High Court
T.Egammai vs Rajalakshmi on 4 October, 2018
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated: 04.10.2018 RESERVED ON : 18.09.2018 PRONOUNCED ON : 04.10.2018 CORAM THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN Appeal Suit No.52 of 2004 T.Egammai ... Appellant Vs 1.Rajalakshmi 2.Rajasekhar ... Respondents Prayer: Appeal Suit is filed under Section 96 of Code of Civil Procedure, against the judgment and decree dated 03.12.2003 in O.S.No.17 of 2002 on the file of the Additional District and Sessions Court, (Fast Track Court-I) Tiruchirappalli. !For Appellant :Mr.T.Antony Arulraj for Mr.I.Irulappan ^For Respondents : Mr.K.S.Sankarmurali :JUDGMENT
The plaintiff in O.S.No.17 of 2002 on the file of the Additional District and Sessions Court, (Fast Track Court-I) Tiruchirappalli, is the appellant.
2.O.S.No.17 of 2002 had been filed by T.Egammai, W/o. Dr.R.L.Thirunavu against AR.Franklin, Rajalakshmi, Rajasekar and Srinivasan, seeking a judgment and decree against the 2nd and 3rd defendants to execute sale deed pursuant to agreement dated 05.06.1993 and on refusal, for the Court to execute sale deed on their behalf and for a further direction against the 2nd and 3rd defendants to deliver vacant possession of the suit schedule mentioned property.
3.This suit came up for consideration before the Additional District and Sessions Judge, (Fast Track Court-I) Tiruchirappalli, who by judgment and decree dated 03.12.2003, dismissed the suit. Challenging the said judgment and decree, the plaintiff had filed the present appeal suit.
4.It must be mentioned that the fourth defendant died pending the suit proceedings. The second defendant, Rajalakshmi was the mother of the 3rd and 4th defendants.
5.In the plaint, it had been stated that the 2nd-4th defendants were the owners of the suit schedule property. The schedule property is 99 cents of Ayan nanja out of 8 acres 8 cents in S.F.No.126/4, Bikhandarkoil Village, Lalgudi Taluk. According to the plaintiff, the second defendant had negotiated with her for selling the suit property. The total sale consideration agreed was Rs.5,25,000/-. An advance of Rs.3,001/- had been paid. The second defendant acted on behalf of the 3rd and 4th defendants also, who were minors. It had been stated that a regular agreement had to be entered into, after legal opinion was obtained within a period of six months. At that time, the second defendant also agreed to receive a sum of Rs.22,000/-. The consent and agreement of sale was entered into on 05.06.1993. It had been stated that the title deeds were also been handed over by the second defendant. The second defendant had an obligation to obtain permission from the Court, since the 3rd and 4th defendants were minors.
6.Since there was a delay, the plaintiff filed O.S.No.2131 of 1993, which was later renumbered as O.S.No.1240 of 1995 in the Court of District Munsif-cum-Judicial Magistrate, Lalgudi. The relief sought was permanent injunction. Though interim injunction was granted, while passing final order, interim injunction application was dismissed. The second defendant had taken the contention that the plaintiff had misrepresented and committed fraud. The second defendant had also filed a police complaint against the plaintiff and her husband. It had been stated that the first defendant was negotiating for purchase of the property. The plaintiff claimed that she was ready and willing to perform her part of the agreement. It was under these circumstances, the suit had been filed seeking the reliefs stated above.
7.The second defendant filed a written statement. It had been stated that the 3rd and 4th defendants alone were the owners of the suit property. The second defendant can only enjoy the property without power of alienation. It had been stated that the plaintiff had not come to Court with clean hands. It had been stated that it was the husband of the plaintiff, who was the actual litigant and the plaintiff was only a name lender. It had been stated that the plaintiff's husband played a huge fraud representing with the members of the family that all the lands belonging to Munia Konar family were likely to be acquired by the Harijan Welfare Tahsildar to allot sites for the Harijans. After verification, however, the second defendant came to know that the land was not proposed to taken for acquisition. It was specifically stated that the husband of the plaintiff played a fraud. It had been stated that there was no agreement between the plaintiff and the second defendant. The receipt of advance was also denied. It was stated that the District Munsif-cum-Judicial Magistrate, in O.S.No.1240 of 1995, dismissed the interim injunction application filed by the plaintiff. The second defendant also denied all the averments made with respect to the first defendant. It had been stated that there is no agreement of sale and that the suit should be dismissed.
8.The 3rd and 4th defendants, who were minors, also filed written statement. They were represented by Court guardian. They claimed that they were the absolute owners of the suit property. They further claimed that the second defendant had not obtained permission from the Court to act on their behalf to sell the suit property.
9.The third defendant subsequently filed written statement after attaining age of majority. He again stated that he and the 4th defendant alone were the owners of the suit property. He stated that the second defendant did not obtain any permission from the Court to enter into any agreement. He denied that there was an agreement of sale. He also pointed out that the interim injunction application in the suit filed in O.S.No.1240 of 1995 was dismissed by the learned District Munsif-cum-Judicial Magistrate, Lalgudi. He further stated that there was actually no agreement of sale in the true sense. He also stated that the second defendant had no right to enter into any agreement without obtaining permission from the Court. He also stated that there was no necessity to sell the suit property. He stated that the plaintiff had prepared a fraudulent agreement. He stated that the suit should be dismissed.
10.On the basis of above pleadings, the Additional District Judge (Fast Track Court No.I), Trichy, framed the following issues for trial:
?1)Whether the plaintiff is entitled to the relief of specific performance?
2)To what other reliefs, the plaintiff is entitled??
11.The learned Judge recast the issues as follows:
?1)Whether the defendants had executed the document, termed sale agreement of document receipt?
2)whether the husband of the plaintiff had, through fraud and undue influence, got executed the said document?
3)Whether the defendants are obliged to executed the sale deed in accordance with said document?
4)Whether the plaintiff was ready and willing to perform her part of the contract?
5)Whether the suit is barred under Order II Rule 2 CPC?
6)Whether the suit is barred by the law of limitation?
7)To what other reliefs, the plaintiff is entitled to??
12.During the trial, the husband of the plaintiff, Dr.R.L.Thirunavu, was examined as PW-1. He marked Ex-A1 to Ex-A16. Ex-A1 is the sale agreement advance receipt, dated 05.06.1993. Ex-A4 is the plaint, dated 07.08.1995. Ex-A5 is the order dated 06.11.1995 in I.A.No.788 of 1995. Ex-A6 is the notice dated 12.08.1993. Ex-A8 is the reply notice dated 26.08.1993. Ex-A9 and Ex-A10 are the rejoinder notices, dated 28.08.1993. Ex-A11 is the written statement in O.S.No.2131 of 1993. Ex-A12 is the counter in I.A.No.799 of 1993.
13.On the side of the defendants, three witnesses were examined as DW-1 to DW-3. The husband of the second defendant was examined as DW-1 and the third defendant was examined as DW-2 and one independent witness was examined as DW-3. The defendants marked Ex-B1 to Ex-B8. Ex-B2 is the order in CMA No.532 of 1999. Ex-B6 is the judgment in O.S.No.783 of 1999. Ex-B8 is the judgment in O.S.No.1 of 1999. Ex-X1 and Ex-X2 were also marked, which are the bank account statement and deposit statement.
14.On the basis of the oral and documentary evidence, by judgment dated 03.12.2003, the learned trial Judge held that Ex-A1 had not been obtained by fraud and undue influence. It was also found that the 3rd and 4th defendants were minors and permission had to be obtained from the Court for selling the property. It was also found that the defendants had sufficient means, which was evident from Ex-X1 and Ex-X2. It was, therefore, held that there was no necessity to sell the property. It was also found that Ex-A1 would not bind the minors. It had been therefore, stated that the plaintiff cannot seek the relief of specific performance of Ex-A1.
15.It was further found that the plaintiff had filed the suit with much delay. It was also found that the plaintiff had filed O.S.No.1240 of 1995 for bare injunction and the interim injunction application was also dismissed. It was also found that the suit was not barred under Order II Rule 2 of CPC. It was also found that the suit was filed on the first day of reopening of summer vacation and subsequently the suit was not barred by limitation. It was further found that the plaintiff was not ready and willing to purchase the suit property. There was no evidence on that ground. The learned trial Judge dismissed suit on the ground that the plaintiff was not ready and willing to perform her part of the contract. Challenging the said judgment and decree, the plaintiff had preferred the present appeal.
16.Since the defendants have not challenged the judgment with respect to the finding that the suit was not barred under Order II Rule 2 CPC and barred under the law of limitation, the only points which now arise for determination are also follows:
?1)Whether Ex-A1, dated 05.06.1993 is an agreement of sale and whether it is enforceable in law?s
2)Whether the appellant was always ready and willing to perform her part of the agreement?
3)whether the appellant is entitled for the relief of specific performance??
17.Heard arguments advanced by Mr.T.Antony Arulraj, for Mr.I.Irulappan, learned Counsel for the appellant and Mr.K.S.Sankarmurali, learned Counsel for the respondents. For the sack of convenience, the parties shall be referred as plaintiff and defendants. The plaintiff is appellant and the defendants are the respondents.
18.Ex-A1, dated 05.06.1993, is the consent and agreement of advance receipt. It is neither an agreement of sale nor a receipt for receiving an advance amount pursuant to agreement of sale. It is a document executed on five separate two rupees stamp papers and one additional paper. It had been signed by the second defendant, Rajalakshmi alone. The entire agreement is in English. This is the agreement of which the plaintiff sought specific performance in the suit and seeks the same relief in this appeal. In the said agreement, it had been stated that the second defendant was acting on her behalf and on behalf of the 3rd and 4th defendants, who were aged 15 and 13 respectively.
19.It was stated that the suit property, measuring 99 cents, would be agreed to be sold by way of a separate agreement to be entered for a total consideration of Rs.5,25,000/-. This document is not an agreement of sale. It is a preliminary document stipulating conditions to be satisfied before the parties enter into an agreement of sale. In this document, a sum of Rs.3,001/- was said to have been paid. That was paid more as a deposit than as an advance towards the sale consideration. Further conditions were imposed that the title deeds should be handed over by the second defendant to the plaintiff, who would get a legal opinion within a period of six months. Within the said period of six months, a formal agreement of sale should be entered into. At that time, a further advance of Rs.22,000/- would be paid to the plaintiff. In the meanwhile, the second defendant should also obtain permission from the Court, since the interests of the minors were involved and were being dealt with by her. It must be kept in mind, her husband was alive and he was the natural guardian of the two minors. It was also agreed that no encumbrance would be made over the property. The purpose for sale was to divide the property into plots. That it would be beneficial for the interest of the minors was not stated. It was however, stated that subsequently a power of attorney would be granted to the plaintiff. It had been further stated that time was the essence of the agreement and both sides should perform their respective obligation within the period of six months. This agreement, was dated 05.06.1993.
20.The plaintiff then issued notice dated 12.08.1993, Ex-A6. In the said notice, it was stated that the plaintiff was ready and willing to perform her part of the agreement. It had been complained that the second defendant had not obtained permission from the Court. It had been also stated that permission must be obtained and that fact must be informed. The second defendant issued a reply, which was dated 26.08.1993 and marked as Ex-A8. She stated that the recitals in Ex-A1 were not read over and explained to her before signed the same. She further stated that the agreement had been obtained by fraud. She also stated that since it had been obtained by fraud the amount, namely, Rs.3,001/- was being returned by way of a demand draft. She made it clear that there were no obligations subsisting between the two parties. Rejoinder notices were issued, which were marked as Ex-A9 and Ex- A10, dated 28.08.1993. It was stated that the second defendant is an educated lady and knew the contents. It was stated that fraud was not committed. It had been stated that the stipulations in the agreement must be performed.
21.A perusal of the three documents discussed reveal that, there was no consensus ad idem between the two parties. Ex-A1 was only a document to enter into an agreement of sale in a future date. That agreement of sale would be entered into only when the plaintiff was satisfied with the title of the property and when the second defendant had obtained permission from the Court to deal with the minors' share. Only when these contingencies are fulfilled, will a proper agreement of sale be entered into. If any of the contingencies are not performed, then the agreement becomes voidable. The second defendant exercised that right and claimed that the agreement had became voidable. She returned the sum of Rs.3,001/-, in the reply notice Ex-A8. There is no evidence to show that she had even applied for permission to effect the sale of the minors' share in the properties. It must be kept in mind that the father of the minors was alive and he was their natural guardian.
22.The learned trial Judge had also found that the plaintiff had also not established readiness and willingness to perform her part. Even before this Court, the plaintiff had not come forward with any additional evidence to show that she was always ready and willing to perform her part of the agreement.
23.A guardian has no right to enter into an agreement with respect to the minor's share without obtaining permission from the Court. In the present case, the second defendant had not obtained any permission from the Court at all. In fact, she was disqualified, since the father of the minors alone had that right. Consequently, there cannot be any enforcement of Ex-A1, which is a void document viewed from the angle of the minors.
24.It is also seen that there is no evidence that the plaintiff had made out a case for enforcement of Ex-A1. Merely filing the suit within the period of limitation would not mean that the plaintiff was is ready and willing to perform her part of the agreement.
25.The learned Counsel for the plaintiff relied on (1990) 3 SCC 517 (Kartar Singh vs Harjinder Singh and others), wherein, a brother had entered into an agreement on behalf of his sister and it was stated that if the sister refused to sell, then he would refund the earnest amount. The Supreme Court held that specific performance with respect to one half share can be granted. The facts in the present case are totally different. The 3rd and 4th defendants were the minors and agreement can never be entered into without obtaining permission from the Court.
26.It had been further argued by the learned Counsel for the plaintiff that the defendants have not pleaded lack of readiness and willingness in their written statement. It must be mentioned that readiness and willingness is an aspect, which is to the exclusive knowledge of the plaintiff. She must prove and plead readiness and willingness. She must prove that she was always ready and willing to pay the balance sale consideration and she was always willing to part with it, at any point of time. This readiness and willingness must subsist from the date of agreement till execution.
27.As a matter of fact, in this case, there was no agreement at all. Ex-A1 is not an enforceable agreement. There are conditions stipulated under it. The primary condition is that the plaintiff must be satisfied about the title to the property. This must read with in conjunction with the statement in the written statement that the 3rd and 4th defendants alone were the owners of the property. They are minors. If the second defendant wanted to deal with their property, then permission must obtained from the Court. Obtaining permission is fundamental to the agreement.
28.The learned Counsel for the defendants relied on (1996) 4 SCC 526 (His Holiness Acharya Swami Ganesh Dassji vs Sita Ram Thapar), wherein, the Honourable Supreme Court has held as follows:
?2.........There is no documentary proof that the plaintiff had ever funds to pay the balance of consideration. Assuming that he had the funds, he has to prove his willingness to perform his part of the contract. According to the terms of the agreement, the plaintiff was to supply the draft sale deed to the defendant within 7 days of the execution of the agreement, i.e., by 27-2-1975. The draft sale deed was not returned after being duly approved by the petitioner. .......?
29.A Full Bench of the Madras High Court, in 1999 (II) CTC 181 (P.Gopirathnam and 4 others vs Ferrodous Estate (P) Ltd), held with respect to the enforcement of an agreement, as follows:
?23. In another decision reported in Shoba Viswanathan v. D.P. Kinggley, 1996 (1) LW 721, the scope of 'Public Policy' was considered]. In paragraph 43 of the Judgment, it is held thus.
"The position of law is clear that when the enforcement of the contract is against any provision of law, that will amount to enforcement of an illegal contract. The contract per se may not be illegal. But its enforcement requires compliance of statutory conditions, failure of which will amount to statutory violation. A court which is expected to enforce the law, cannot be a party to such adecree."
24. From these decisions, it is clear that even if the contract by itself may not be illegal but its enforcement if violates any law that will be a ground to hold that the agreement cannot be enforced. ...... If by enforcement of contract, if it amounts to subverty or circumvent law, court cannot be party to such enforcement, Court will have to discountenance the practice and it will have to safeguard the foundation of Society.?
In the present case, the second defendant had no authority to enter into the agreement on behalf of the two minors. Ex-A1 is void on that ground. It violates the principle that permission has to be obtained from the Court before entering into any such agreement.
30.It has to be mentioned that the suit should also strictly be in compliance of Form 47 of Appendix-A of CPC. This had been affirmed in 2017 (1) MWN (Civil) 698 (Rajammal vs A.P.Mani), wherein, this Court has held as follows:
?15. Learned counsel for the appellant raised another legal issue by contending that the averments in the plaint with regard to the readiness and willingness should be in conformity with Form No.47 of Appendix-A of Code of Civil Procedure as required under Order 6 Rule 3 of C.P.C. Form of pleading: The forms of Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as may be, shall be used for all pleadings.
Form No.47 reads as follows:
No.47 SPECIFIC PERFORMANCE (No.1) A.B., the above-named plaintiff, states as follows:-
1. By an agreement dated the .............. day of .............. and signed by the defendant, he contracted to buy of (or sale to) the plaintiff certain immovable property therein described and referred to, for the sum of ........ rupees.
2. The plaintiff has applied to the defendant specifically to perform the agreement on his part, but the defendant has not done so.
3. The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice.
4. (Facts showing when the cause of action arise and that the Court has jurisdiction)
5. The value of the subject-matter of the suit for the purpose of jurisdiction is....... rupees and for the purpose of court-fees is ......... rupees.
6. The plaintiff claims that the Court will order the defendant specifically to perform the agreement and to do all acts necessary to put the plaintiff in full possession of the said property (or to accept a transfer and possession of the said property) and to pay the costs of the suit.
16.....
17. Consideration of the above contention of the learned counsel for the appellant and the above decision of the Apex Court would only show that a mere formal pleading of readiness and willingness is not enough, unless such pleading is in conformity with the requirement of law as contemplated under Clause 3 of Form 47 in Appendix A of C.P.C.?
In the instant case, neither is there an agreement of sale nor are there pleadings relating to readiness and willingness. Mere statements are not sufficient.
31.In (1990) 3 SCC 1, (Mayawanti vs Kaushalya Devi), the Honourable Supreme Court has held as follows:
?8.In a case of specific performance it is settled law, and indeed it cannot be doubted, that the jurisdiction to order specific performance of a contract is based on the existence of a valid and enforceable contract. The Law of Contract is based on the ideal of freedom of contract and it provides the limiting principles within which the parties are free to make their own contracts. Where a valid and enforceable contract has not been made, the court will not make a contract for them. Specific performance will not be ordered if the contract itself suffers from some defect which makes the contract invalid or unenforceable. The discretion of the court will be there even though the contract is otherwise valid and enforceable and it can pass a decree of specific performance even before there has been any breach of the contract. It is, therefore, necessary first to see whether there has been a valid and enforceable contract and then to see the nature and obligation arising out of it. The contract being the foundation of the obligation the order of specific performance is to enforce that obligation.?
32.It is seen that even in the present case that there is absolutely no agreement of sale at all and consequently, there cannot be any enforcement of Ex-A1. The answers to the points for determination are that Ex-A1 is not an enforceable agreement. It is not at all an agreement of sale. The second defendant had no authority to enter into such an agreement on behalf of the minor sons.
33.In view of the discussions above, I hold that the judgment of the trial Court has to be sustained. The plaintiff has not made out any case for reversing of the judgment of the trial Court. The plaintiff had not proved that there was a valid agreement; that the interest of the minors had been safeguarded; that the plaintiff was always ready and willing to perform her part of the agreement.
34.For the reasons stated above, the appeal is dismissed with costs. The judgment and decree dated 03.12.2003 in O.S.No.17 of 2002 on the file of the Additional District and Sessions Court, (Fast Track Court I) Tiruchirappalli is confirmed.
To
1.The Additional District and Sessions Judge, (Fast Track Court I), Tiruchirappalli.
2. The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai..