Madras High Court
Y.A. Kader vs Muthulakshmi Ammal (Deceased By L.R'S) on 14 August, 1991
Equivalent citations: AIR1992MAD208, AIR 1992 MADRAS 208, (1992) 2 MADLW 372
JUDGMENT
1. All these appeals are by one Y. A. Kader, A. S. No. 54 of 1980 is against the Judgment and Decree in O.S. No. 84 of 1977, A.S. No. 351 of 1985 is against the Judgment and Decree in O.S. No. 85 of 1977, A.S. No. 380 of 1985 is against the Judgment and decree in O.S, No. 18 of 1978 and A.S.No. 408 of 1985 is against the Judgment and Decree in O.S. No. 19 of 1978; all the said suits were on the file of the Subordinate Judge of Mayuram. The Appellant Y.A. Kader herein is the Plaintiff in D.S. Nos. 18 of 1978 and 19 of 1978 and defendant in O.S. No. 84 of 1977 and O.S. No. 85 of 1977. O.S. Nos. 84 and 85 of 1977 are for possession and mesne profits. O.S. No. 84 of 1977 was filed by one Mathulakshmi, the 1st Respondent in A.S. No. 54 of 1980. She having died pending A.S.No. 54 of 1980, her three legal representatives were brought on record as Respondents 2 to 4 in the said A.S. No. 54 of 1980. Likewise, in the view of the joint memo dated 17-7-1991, in A.S. No. 380 of 1985 also the same three are hereby brought on record as legal representatives of the deceased Respondent Muthulakshmi Animal. O.S. No. 85 of 1977 was filed by the above referred to Mathulakshmi and the 3 children of one Savhhiri Ammal, who are respondents 2 to 4 in A.S. No. 54 of 1980. The said three persons are Respondents 2, 3 and 4 in A.S. No. 351 of 1985 and they have also been recorded as legal representatives of the deceased 1st Respondent. Muthulakshmi Ammal. In O.S. No. 84 of 1977 possession was claimed with reference to 4.731/2 acres of land. In O.S. No. 85 of 1977 possession was claimed with reference to another land, whose extent is 1.81 acres. O. S. Nos. 18 and 19 of 1978 were filed by the Appellant herein for specific performance of the contract of sale of the lands involved in the above referred to O.S. No. 84 1977. While O.S. No. 18 of 1978 was against the above said Muthulakshmi alone, O.S. No. 19 of 1978 was filed against the said Muthulakshmi and 3 children of Savithiri Ammal (Respondents in A.S. No. 54 of 1980) and was for specific performance of another contract of sale of the lands involved in the above said O.S. No. 85 of 1977. All these suits were tried together as they are connected with each other and common evidence was recorded.
2. O.S. Nos. 84 and 85 of 1977 for possession came to be filed in the following circumstances:-- Admittedly two sale agreements were executed on 19-6-1974. One is Ex. A. 1. It was executed by the Plaintiff in O.S. No. 84 of 1977 in favour of the above said Kader, the appellant. The other is Ex. A. 2, executed by the above said Savithiriammal, who died subsequently, in favour of the above said same Kader. By the former agreeement, 8.71 acres of wet lands were agreed to be sold for Rs. 65325/- at the rate of Rs. 25/- per kuli. In the latter agreement 1.81 acres of wet lands were agreed to be sold for Rs. 13, 575/- at the same rate. Under each of the said agreement, a sum of Rs.2000/- was paid as advance.
Further, possession of the respective lands was also handed over to the buyer, the above said Kader on the same date. Further, in respect of the above said Ex. A.1 sale agreement, subsequent to the said sale agreement, on 18-12-1974 sale deed was executed with reference to 3.971/2 acres. This is out of the above said 8.71 acres and the above said portion covered a consideration of Rupees 36187/- out of the above said total consideration of Rs. 65325/- under the sale agreement. With refernece to the above facts, there is no dispute between the parties.
3. While so, according to the Plaintiffs, with reference to the balance 4.731/2 acres, the said Kader did not come forward to pay the balance price and get the sale deed executed, despite the fact that the sale agreeement provided that within six months of the date of sale agreement, the sale should be completed and despite the fact that the Vendor reminded Kader to perform his part of the contract, by even sending Ex. A.3 notice dated 20-1-1977. Further, according to the Plaintiff in O.S. No. 84 of 1977, even though the Appellant Kader sent a reply Ex. A.5 dated 26-1-1977, he did not come forward to pay the balance price and hence by Ex. A. 10 dated 24-2-1977, the said plaintiff terminated the contract on the ground that the Appellant was not ready and willing to perform his part of the contract and filed the suit O.S. No. 84 of 1977 claiming back possession of the above referred to 4.731/2 acres out of the total 8.71 acres. In the other suit O.S. No. 85 of 1977 also according to the Plaintiffs therein, the defendant Kader did not come forward to pay the balance sale price, viz., Rs. 11575/- despite the fact that even in the sale agreement relating thereto, the same six months' period was stipulated as the period within the sale should be completed. In this case also possession of the land was admittedly handed over to Kader on 19-6-1974 itself. Here again, according to the said plaintiffs, despite the reminders sent by them, Kader did not come forward to pay the balance price and get the sale deed. The above said Ex. A. 10 terminates Ex. A.2 contract also for the same reason. That is why O.S. No. 85 of 1977 has been filed for possession of the above said 1.81 acres of land.
4. The Court below has dismissed O.S. Nos. 18 and 19 of 1978 and decreed O.S. No. 85 of 1977 as prayed for and gave a partial decree in O.S. No. 84 of 1977 in favour of the Plaintiff therein with reference to only 3.861/2 acres of land out of the above said 4.731/2 acres of land claimed by the Plaintiff therein. The above said partial decree was so given because the Court held that apart from the above referred to 3.971/2 acres of land, Sale deed was executed for another 87 cents also under Ex. B. 3 dated 3-10-1974 in favour of the defendant Kader's nominee.
5. For decreeing O.S. Nos. 84 and 85 of 1977 and dismissing O.S. Nos. 18 and 19 of 1978 as stated above, the Court below found that the above said Kader was not ready and willing to perform his part of the contract. His defence in the suit was that he was entitled to part performance contemplated under Section 53-A of the Transfer of Property Act and so O.S. Nos. 84 and 85 of 1977 would not lie at all. Further, his defence was that he was ready and willing to perform his part of the contract and there was delay only because the respective vendors did not measure the respective lands agreed to be sold and there was actually deficiency in the extent agreed to be sold.
6. The Court below has held that there is no scope for application of Section 53-A of the Transfer of Property Act since one of the esential requirements therein, viz., the transferee performing or being willing to perform his part of the contract, has not been satisfied in the present case by the transferee Kader. Further, the Court below has also held that the respective plaintiffs in O.S. Nos. 84 and 85 of 1977 were not at fault with reference to the measuring of the respective lands as alleged by the defendant Kadar.
7. The Learned Counsel for the appellant initially submitted that the appellant was ready and willing to perform his part of the contract and only the Respondents were at fault. As against this initial submission, the Learned counsel for the Respondents argued the other way about. So, first of all, it may be seen who was at fault. Pursuant to Ex. A.1 sale agreement for 8.71 acres, admittedly sale deeds were, executed excepting for 3.861/2 acres out of the total 8.71 acres and that is why O.S. No. 84 of 1977 was laid by the Plaintiff Muthulakshmi Ammal, therein for recovery of possession of the said extent, on the footing that there was breach of contract on the part of the above said appellant Kader. Of the said sale deeds, admittedly the last one was on 3-6-1975. Then so far as Ex. A.2 sale agreement is concerned, for 1.81 acres admittedly no sale deed was executed pursuant to the agreement. That is why the other suit O.S. No. 85 of 1977 has been filed by the Plaintiffs therein on the same ground of breach of contract. Both the transactions put together, the balance sale consideration, after taking into account the advance of Rs. 2000/ - paid in each of the two transactions, would come to about Rs. 30,000/- roughly and the main thing that has to be considered is whether the above said appellant Kader was ready and willing to pay the above said balance sale price and whether due to any fault on the part of the respective respondents, he rightly withheld the said payment. First of all, after the above said last sale deed of 3-6-1975, there is no document showing that the appellant Kader made any attempt to pay the above said balance sale price. The Appellant as D.W. 1 in his chief examination, did not at all speak about his readiness and willingness to pay the said sale price and perform his part of the contract. Further, no documentary evidence has been filed to show that the appellant had resources to pay the said balance price. That apart, so far as Ex. A.2 sale agreement is concerned, as already stated there was no sale deed executed even for a part of the property agreed to be sold thereunder. Just as Ex. A.1, Ex. A.2 is also dated 19-6-1974, as already stated, and the terms of both the agreements are almost same and even under Ex. A.2 within six months from 19-6-1974 the sale has to be completed. But the appellant did not pay the balance sale consideration under Ex. A.2 within the said six months' period or even thereafter and there is nothing to show that he was ready and willing to pay the same and thereby perform his part of the contract. So, so far as Ex. A.2 is concerned, the appellant was keeping quiet even after the expiry of the above said six months period, that is right from the end of 1974 itself and so far as Ex. A.1. sale agreement, he was keeping quiet at least from the above said date of 3-6-1975. so far as Ex. A.1 sale agreement, it is only the plaintiff Muthulakshmi Ammal who sends notice under Ex. A. 3 dated 20-1-1977 to the appellant stating, inter alia, as follows :--
"Even though a period of over two years had passed, you have not completed the transaction by paying all the amounts due and taking sale deeds of all the properties .....
You have not cared to take sale deeds for the rest of the lands and you are deliberately evading and gaining time obviously on account of the advantageous position you are having in being in possession and enjoyment of the properties and realising the income therefrom when my client sent her brother to Mayuram in July, 1976 for taking action, you said that if the lands are measured, you will fulfil the terms of the contract immediately. After considerable difficulty and also at personal cost my client had the lands measured by a Surveyor, but apart from a very small extent the rest are found to be correct and at any rate so far as the nanja lands are concerned. Only an extent of 41/2 cents in R.S. 178/4 and 5 cents in R.S. 179 were found to be deficient. The deficiency is only due to the fact that after the agreement a road seems to have been put up by the panchayat, and the place is occupied by road, My client's brother informed you even to reduce proportionately for the extent found to be less. Even after such an offer you have not fulfilled your obligation". (Underlining is mine).
To this Ex. A.3, the appellant no doubt sent a reply under Ex. A.5 dated 26-1-1977. In the said reply, no doubt he stated that he was ready and willing to perform his part of the contract. He further stated therein that it was not correct to state that the above said Muthulakshmi Ammal had the lands measured by a surveyor and the deficiency was 41/2 + 5 cents only. He then stated that "without notice to him he understands that surveyor was brought and that he measured some items only.". Therefore, he stated that he was ready and willing to have the sale deeds taken after due measurement of all the lands in his presence. It is to be noted here that the sale agreement as such does not contain any term for measuring the lands agreed to be sold. Further, it is not shown by any evidence that prior to July, 1976, this question of measurement was raised at all by the appellant. Further, Ex. A.3 specifically states that the deficiency of 41/2 cents + 5 cents was only due to the fact that after the sale agreement, a road was put up by the Panchayat on the suit land reducing its area to the above extent. The fact that the road came in after the sale agreement has not been denied in Ex. A.5 further, in reply to Ex. A.5, Ex. A.8 letter dated 8-2-1977 was sent by Muthulakshmi Ammal to the appellant. In the said letter, apart from stating that the application for measuring the lands was made in Chalan No. 72-73-74 dated 29-6-1976 and on 14-7-1976 it is also stated that in the presence of the appellant, the lands were measured. To this categorically statement of the presence of the appellant at the time of measurement of lands by the Surveyor, there is no denial in the subsequent reply Ex. A.9 dated 15-2-1977 sent by the appellant to the Plaintiff Muthulakshmi Animal. Any way, when the plaintiff Muthulakshmi Animal has expressed her willingness to accept the balance price in proportion to the extent sold, the appellant can have no grievance. If necessary, the appellant could have himself measured the land at the cost of the Plaintiff and demanded the execution of the sale deed according to the extent on payment of the proportionate price thereof. Taking all these into consideration, I think there was no justification on the part of the appellant to have delayed considerably in paying the balance sale price with reference to both the sale agreements and performing his part of the contract. So, he will not be entitled to specific performance, which is claimed by him in his two suits O.S. Nos. 18 and 19 of 1978.
8. The Learned counsel for the appellant has also argued that the suits O.S. Nos. 84 and 85 of 1977 are not maintainable in view of Section 53-A of the Transfer of Property Act.
His contention is that the Appellant, in part performance of the respective sale agreements, was put in possession of the respective suit properties on 19-6-1974 and continued to be in possession thereof and his possession could not be disturbed. But, I am unable to accept this contention in view of the fact that one of the several requirements under Section 53-A of the Transfer of Property Act has not been satisfied by the Appellant for claiming protection thereunder. The said requirement under Section 53-A of the Transfer of Property Act is the transferee should here performed or is willing to perform his part of the contract. So, unless the appellant-transferee has proved that he has performed or is willing to perform his part of the contract, he cannot invoke Section 53-A of the Transfer of Property Act. I have already held that he was not ready and willing to pay the balance sale price and perform his part of the respective contracts and that he was not entitled to specific performance claimed by him in his two suits. But, the Learned Counsel for the appellant, however, contends that the term used in Section 53-A is mere willingness to perform the transferee's part of the contract and not readiness and willingness to perform his part as mentioned under Section 16 of the Specific Relief Act. But, the said counsel was unable to cite any authority to make any such distinction between the above said terminology used in Section 53-A and the correspend-ing one used in Section 16 of the Specific Relief Act. On the other hand, the Learned Counsel for the Respondents brought to my notice three decisions from which it can be safely inferred that the term 'willingness' used in Section 53-A of the Transfer of Property Act is nothing different from the term 'willingness and readiness' used in Section 16 of the Specific Relief Act. The first of these decisions is Karthikeya Mudaliar v. Singaram Pillai, (1956) 2 Mad LJ 515 : (AIR 1956 Madras 693), where I find the following passage (at p. 695 of AIR):--
"Section 53-A, however, does not provide that there must be a plea in a suuit for possession, where the defendant seeks the aid of Section 53-A, that he is ready and willing to perform his part of the contract. The readiness and willingnes to perform his part of the contract must no doubt be established by evidence and that readiness and willingness must be shown to have existed ever since the time of the agreement and not necessarily when the suit is filed. It may be that such a pleading may be absolutely necessary in a suit for specific performance on the part of the Plaintiff. But the absence of an averment in the written statement in a suit for possession, where the defendant raises plea under Section 53-A, does not appear to me to be fatal, as Section 53-A does not in terms provide for any such requirement.".
(Underlining is mine) Then in Anantha Piklai v. Rathnasa Bapathy Mudaliar, (1968) 2 Mad LJ 574 at p. 582 after citing the above passage the learned Judge observes as follows :--
"Admittedly, in this case, the plaintiff has not let in evidence to show that he was ready and willing to perform his part of the contract. Therefore, condition No. (VI) enumerated already is not satisfied in this case and for this reason the plaintiff cannot have any reliance on Section 53-A."
(Underlining is mine) Further in Sardar Govindrao Mahadik v. Devi Sahai, I also find a similar observation as follows (at p. 1003 of AIR) :--
"Section 53-A requires that the person claiming the benefit of part performance must always be shown to be ready and willing to perform his part of the contract. And if it is shown that he was not ready and willing to perform his part of the contract he will not qualify for the protection of the doctrine of part performance."
(Underlining is mine) No doubt, the learned counsel for the appellant contends that the Supreme Court in the above said decision was only concerned with another requirement under Section 53-A of the Transfer of Property Act, viz., that the transferee "has done some act in furtherance of the contract". But, I do not think so, it was considering both the requirements on the facts that were before it. Even assuming that the above quoted observation of the Supreme Court was obiter, it has to be given due weight.
9. So, it is clear from the above said passages quoted in the above referred to three decisions, the term 'willingness' used in Section 53-A would mean only 'readiness and willingness' used in Section 16 of the Specific Relief Act. Therefore, I find that the appellant cannot invoke Section 53-A of the Transfer of Property Act.
10. Nextly, the learned counsel for the appellant submitted that the respective respondents could not seek for the relief of possession and that all that they could claim if at all was only damages for breach of contract. Further, he pointed out that in each of the above said sale agreements Exs. A.1 and A.2 there is an identical default clause stating that if the purchaser makes any default, the vendor can have Rs. 2000/- more as sale consideration and execute the sale deed accordingly. So, according to the learned Counsel the appellant cannot claim possession back of the respective suit properties and if at all each of them could claim Rs. 2000/-more as sale consideration. I do not think that this contention could be accepted after such a long time and when there is a total change in the price situation. That apart, the above referred default clause only indicates that the time was not of the essence of the contract. So, if at least immediately after the expiry of the six months' period fixed, Kader had approached the respective plaintiffs in O.S. Nos. 84 and 85 of 1977 with the balance sale consideration, then they could not have refused to execute the sale deed. But, in the present case, the said defendant has kept quiet for a long time. After the last sale deed that was executed on 3-6-1979, he had not approached the respective plaintiffs therein with the balance sale consideration and asked them to execute the sale deeds. It is only the Vendor who has sent notices Ex. A.3 dated 20-1-1977 and Ex. A. 10 dated 24-2-1977 complaining about the default on the part of the said purchaser defendant. Thus, unreasonably a long period has elapsed. So, the said defendant cannot rely on the above said default clause and ask the respective plaintiffs in the above referred two suits to execute the sale deed despite the long delay and default oil his part. That part, even in the written statement in those two suits or in his plaints in the other two suits he has not pleaded that as per the above said default clause, he is entitled to have the respective sale deeds though at a price higher than Rs.2000/-. In this behalf, the Learned Counsel for the Respondents also relied on Hatten v. Russell, (1888) 38 Ch D 334 where it has been held that where a contract for sale between a vendor and purchaser fixes a day for completion, and provides that if the purchase is not completed on that day the Purchaser shall pay interest from that day until completion, time is not of the essence of the contract so as to entitle the Purchaser if, in consequence of a defect of conveyance merely and not of title, the Vendor is unable on his part to complete the contract on the day fixed. He also drew my attention to Gomathimatagam Pillai v. Palaniswami Nadar, , where it has been held that mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence. Therefore, despite the above said default clause, the respective plaintiffs in O.S. Nos. 84 and 85 of 1977 can seek the relief of possession prayed for and it cannot be said that they can claim only damages from the above said Kader.
11. So, the possession relief sought for can be given. However, it is admitted that the land that is available is 41/2 cents less in S. No. 178/4 and is less by cents in S. No. 179/1. So, the Plaintiff in O. S. No. 84 of 1977 is entitled to a decree for possession of an extent of 1.461/2 acres in S. No. 178/4 and 2.301/2 acres in S. No. 179/1 and mesne profits therefor, which is to be decided under separate proceedings under Order 20 Rule 12 C.P.C. by the Lower Court. Thus A.S.No. 54 of 1980 is allowed in part and the judgment and decree of the Court below are modified as indicated above. The appeal in respect of the extent of land other than the above said 41/2 + 5 = 91/2 cents is dismissed. Accordingly the Appellant has to pay the Respondents costs proportionate to the above dismissal. However, in O.S. No. 85 of 1977, since there is no shortage in the extent, the judgment and decree of the Court below arc confirmed and A.S. No. 351/1985 is dismissed with costs. Time for delivery of possession in both O.S. Nos. 84 and 85 of 1977 is three months from this date. Consequent on the above said findings and the decrees given in O.S. Nos. 84 and 85 of 1977, A.S. Nos. 380 of 1985 and 408 of 1985 are dismissed with costs.
12. Order accordingly.