Madras High Court
V.R.Natesan vs Sundarammal on 26 April, 2022
Author: M.Govindaraj
Bench: M.Govindaraj
SA NO.478 OF 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 26 / 04 / 2022
CORAM
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SA NO.478 OF 2017
AND CMP NO.11755 OF 2017
V.R.Natesan ... Appellant
VS.
1.Sundarammal
2.Pappathy
3.Susheela ... Respondents
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, 1908, against the judgment and decree dated 16.03.2017 in
A.S.No.50 of 2015 on the file of the learned Principal District Judge,
Coimbatore, reversing the judgment and decree dated 03.10.2012 in
O.S.No.739 of 2009 on the file of learned I Additional Subordinate Judge,
Coimbatore.
For Appellant : Ms.AL.Ganthimathi
For Respondents : Mr.B.Harikrishnan
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SA NO.478 OF 2017
JUDGMENT
Aggrieved over the reversal of the decree of specific performance granted by the Trial Court, by the First Appellate Court, the plaintiff has preferred the above Second Appeal.
2.For the sake of convenience, the parties are called as per their litigative status before the Trial Court.
3.The plaintiff filed a Suit for specific performance directing the defendants to execute a Sale Deed in his favour with regard to their 3/4th share in the Suit property after receiving the balance sale price. Originally, the Suit property belonged to one Late Rangaiah Gounder as his separate property. Rangaiah Gounder was survived by the defendants and one son by name Chinnaraj. On 16.01.2007, the defendants along with the said Chinnaraj entered into an agreement of sale with the plaintiff and received a sum of Rs.1,00,000/- as advance on the date of the agreement. As per the terms and conditions of the agreement, the defendants have to produce the death and legal heirdhip certificate of the deceased Rangaiah Gounder, along with patta, chitta and adangal and 2/16 https://www.mhc.tn.gov.in/judis SA NO.478 OF 2017 that the plaintiff shall pay the balance sale price within a period of six months and get the Sale Deed executed in his favour. The plaintiff was ready and willing to perform his contract as per the agreement for sale. However, the defendants have not produced the documents as promised and have not measured the property by metes and bounds and were postponing the performance of the contract on their part. Suppressing all these facts, the defendants issued a telegram on 14.07.2007 calling upon the plaintiff to pay balance sale price and get the Sale Deed from them on or before 16.07.2007. Immediately, the plaintiff sent a reply telegram expressing his intention to get the Sale Deed executed in his favour and waited in the Office of the Sub Registrar with funds to comply with their demands. After exchange of telegraphic notices, the defendants and the said Chinnaraj promised to meet the plaintiff with all title deeds and get the names mutated in the revenue records within a short time. Since they did not evidence any interest to honour their commitment, the plaintiff sent a legal notice on 19.06.2008 to the defendants to the address mentioned in the sale agreement. But all the postal covers were returned with an endorsement “no such addressees”. After enquiry with the local residents, he got the new address of the defendants and sent a legal notice 3/16 https://www.mhc.tn.gov.in/judis SA NO.478 OF 2017 on 30.04.2009. On receipt of the legal notice, the said Chinnaraj voluntarily came forward and conveyed his 1/4th share in the property. After taking measurement of the suit property, it was found that only an extent of 3.70 acres were available for specific performance and that Chinnaraj executed a Sale Deed on 21.09.2009 by virtue of a registered Document No.9957/2009 conveying his 1/4th share. The defendants issued a reply notice with unsustainable allegations. The plaintiff was always ready and willing to perform his part of contract and the total sale price of the land measuring an extent of 3.70 acres is Rs.5,55,000/- at the rate of Rs.1,50,000/- per acre as per the sale agreement dated 16.01.2007. After deducting the advance amount of Rs.25,000/- that was paid to Chinnaraj's share, the defendants are entitled to get the balance sale price to the tune of Rs.3,41,250/- towards their 3/4th share and execute the Sale Deed. Since the defendants evaded from performing their part of the contract, he filed a Suit for specific performance.
4.The defendants have resisted the averments made in the plaint by way of filing an elaborate written statement, wherein it was stated that the plaintiff has drastically failed to perform his part of 4/16 https://www.mhc.tn.gov.in/judis SA NO.478 OF 2017 contract within the time stipulated in the sale agreement and thereby, he lost his right to claim specific performance. The agreement was expressly rescinded by telegraphic notice of termination on 14.07.2007. The plaintiff has not taken any action for a period of 1 ½ years and issued a legal notice only on 30.04.2009. In the meanwhile, a Suit for partition was filed against Chinnaraj in O.S.No.316 of 2007 on the file of the District Munsif Court, Mettupalayam and a decree of partition was granted by the Court and the entire property excepting the 1/4 share of Chinnaraj was released. The defendants have not received any advance as alleged by the plaintiff and it was received by the said Chinnaraj, who was acted in collusion with the plaintiff. Therefore, they are not liable to execute the Sale Deed. The plaintiff has not shown readiness and willingness throughout the transaction and the Suit is barred by limitation and it is vexatious one.
5.The Trial Court, after framing appropriate issues has held that the plaintiff is entitled to decree of specific performance. On appeal, the First Appellate Court has found that the agreement of sale is an unregistered one and it was hit by Section 17(1-A) of the Registration 5/16 https://www.mhc.tn.gov.in/judis SA NO.478 OF 2017 Act, 1908, and that the plaintiff has not shown his readiness and willingness by proving his financial capacity and reversed the decree granted by the Trial Court.
6.Aggrieved over the same, the plaintiff preferred the Second Appeal and it was admitted on 26.11.2019 the following substantial questions of law:-
"1.Whether the lower appellate court was right in dismissing the suit, more so when the plaintiff has shown his readiness and willingness to perform his part of the contract and the delay if any caused was due to the conduct of the defendants in not coming forward to execute the sale deed ?
2.Whether the lower appellate court was right in reversing the judgment and decree of the trial court without assigning any reason as to why it does not agree with the conclusions of the trial court? "6/16
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7.Admittedly, an unregistered agreement was entered between the parties. Whether consensus ad-idem was there or not? was discussed by the Courts below. Admittedly, the defendants by filing a Suit for partition and for recovery of the advance amount received by Chinnaraj have taken their share of Rs.75,000/- paid by the plaintiff towards advance. Further, they have issued a telegram on 16.07.2007 rescinding the sale agreement. Therefore, it is clear that the defendants along with Chinnaraj has entered into a sale agreement with the plaintiff and as such, there was consensus ad-idem between the parties. Now that a perusal of the sale agreement, marked as Ex.A1 reveal that there was a precondition that the defendants shall produce death certificate of Rangaiah Gounder and legal heirship certificate, patta, chitta and adangal to the plaintiff. It is also quoted that the measurements of the property was not actually taken. The further condition states that the sale shall be completed within a period of six months. If the vendee fails to perform his part of contract, the advance paid by him will be forfeited and on the other hand, if the vendors fails to perform their part of contract, the vendee is entitled to file a Suit for specific performance. Therefore, from Ex.A1 it can be clearly inferred that production of the death certificate, 7/16 https://www.mhc.tn.gov.in/judis SA NO.478 OF 2017 legal heirship certificate and revenue documents are the pre-requisites of the performance of the contract. Even though in the reply notice issued by the defendants vide Ex.A4 states that they have handed over the required documents to the plaintiff, there is no oral evidence by the third defendant, who deposed as D.W.1 to prove the same.
8.It is well settled that in a Suit for specific performance for sale of immovable property, the normal presumption shall be time is not the essence of the contract. The conduct of the parties in the present case clearly goes to show that without fulfilling the promise, the parties cannot insist on the time as essence of the contract.
9.In so far as the first question of law of readiness and willingness to perform plaintiff's part of contract is concerned, it was delayed due to the conduct of the defendants and not coming forward to execute the sale deed is concerned, at the threshold itself, the defendants have not produced the required documents as promised in the terms and conditions of the sale agreement. In fact, at the time of entering into the sale agreement, a sum of Rs.1,00,000/- was paid towards advance, which was received by the defendants along with Chinnaraj and it was further 8/16 https://www.mhc.tn.gov.in/judis SA NO.478 OF 2017 substantiated that the they are recovered their share of advance of Rs.75,000/- by filing a Suit in O.S.No.316 of 2007. Thereafter, they have shifted their residence. Then it was found that the property situate in S.F.No.325 and a Part of S.F.No.324 of the said village, the sale deed stood in the name of the father-in-law of the first defendant namely Bujjanga Gounder and that he died intestate leaving behind the Rangaiah Gounder and well as one Ramasamy Gounder as his sons. He wanted proof of partition in between the brothers and the relevant documents with respect to the common half share of the Rangaiah Gounder in the total extent of 5.61 3/5 acres and 1.87 1/5 acres. Since it was not forthcoming, he issued a legal notice on 30.06.2008. Therefore, there was no reason for delay on the part of the plaintiff in issuing the legal notice beyond the period of six months specified in the sale agreement. After issuance of the legal notice, it was found that the defendants have shifted their residence as evidenced by Ex.A2, the returned postal covers. The returned postal covers clearly indicates that the covers were kept in the custody of the postman from 20.06.2008 to 27.06.2008. On all days, enquiry was made and it was found that "no such addressees" were residing in that address.
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10.The conduct of the defendants, shifting their residence without informing the plaintiff shows the malafide intention on the part of the defendants. Even though a denial was made in the written statement that they have not shifted the residence, it was admitted during oral evidence that they have actually shifted the residence and it was borne out by Ex.A2. Once the conduct of the defendants is not above board, it cannot be pleaded that the plaintiff has not performed his part of contract within the time specified in the sale agreement.
11.In this case, time is not the essence of the contract. Further for the telegram sent by the defendants on 14.07.2007 calling upon the plaintiff to pay the balance sale consideration and get the sale deed executed was immediately responded by the plaintiff and he waited at the Office of the Sub-Registrar on 16.07.2007. The factum that he waited in the Office of the Sub Registrar stood proved by Ex.A10. Ex.A10 is the registered sale deed registered at the Office of the Sub Registrar on 16.07.2007. A perusal of Ex.A10 reveal that the sale was executed on 16.07.2007 and the execution was witnessed by the plaintiff. Further, the sale deed dated 16.07.2007 which was registered on the very 10/16 https://www.mhc.tn.gov.in/judis SA NO.478 OF 2017 same day in which the plaintiff has identified the executant before the Sub Registrar. Therefore, it is very clear that the plaintiff was ready and willing to get the sale deed executed in his favour throughout.
12.It is further substantiated by the sale deed executed by Chinnaraj in respect of his 1/4th share in favour of the plaintiff and payment of the balance sale consideration by the plaintiff. This shows that the plaintiff was ready and willing throughout. But the First Appellate Court has wrongly construed that the plaintiff was not ready and willing and has approached the defendants only after a period of 1 ½ years and thereby committed delay. But the conduct of the parties as a whole and the specific pleadings made in the plaint clearly prove that the plaintiff was ready and willing to perform his part of contract and it was delayed on account of the conduct of the defendants.
13.The learned counsel for the defendants relied on the judgment of this Court in M.JOHNSON VS. E.PUSHPAVALLI [2016 (2) MWN (CIVIL) 628] and a Division Bench judgment of this Court in P.SAKUNTHALA AND OTHERS VS. N.A.RAJENDRAN [2016 (6) 11/16 https://www.mhc.tn.gov.in/judis SA NO.478 OF 2017 CTC 490] for the proposition that though the Suit is filed within limitation, the enormous delay on the part of the plaintiff in initiating the legal proceedings, in a specific performance suit, is relevant to the grant of relief is concerned, the concept of time is the essence of the contract and that delay will operate against the plaintiff, is not applicable to the present case, as the conduct of the parties goes to show that the plaintiff was always ready and willing to perform his part of contract.
14.The First Appellate Court has also reversed the well considered judgment of the Trial Court on the ground that the sale agreement was not a registered document. Section 17(1-A) of the Registration Act, 1908 makes it mandatory to register the documents containing contracts to transfer for consideration, any immovable property for the purpose of Section 53-A of the Transfer of Property Act, 1882 with effect from 24.09.2001. Here, the sale agreement was entered in the year 2007. But the plaintiff has not taken advantage of Section 53-A of the Transfer of Property Act, 1882, in claiming specific performance.
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15.Section 17(2)(v) of the Registration Act, 1908, exempts the document, which do not create, declare, assign, limit or extinguish any right, title or interest from being registered. But only creates a right to obtain another document which will when executed, create, declare, assign limit was extinguished any such right, title or interest. Therefore, when a sale agreement, which does not claim any part of past performance under Section 53-A of the Transfer of Property Act, 1882, need not be registered.
16.The learned counsel for the defendants relied on a judgment of this Court in PALANIAMMAL AND OTHERS VS. K.R.C. ANBALAGAN AND OTHERS [2013 (3) CTC 477] which clearly spell out that when a person seeks to reap the benefits of Section 53-A of the Transfer of Property Act, 1882, shall have an agreement of sale relating to any immovable property and shall register the same as per Section 17(1-A) of the Registration Act, 1908. In the instant case, the plaintiff is not seeking the benefits of Section 53-A of the Transfer of Property Act, 1882, and therefore, the above judgment is not applicable to the case on hand.
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17.In so far as the second question of law is concerned, the First Appellate Court has reversed the finding of the Trial Court on erroneous application of Section 17(1-A) of the Registration Act, 1908 read with Section 53-A of the Transfer of Property Act, 1882. The finding that the sale agreement is not registered in view of the Amendment dated 24.09.2001 is fatal to the claim of specific performance is absolutely erroneous, baseless and not sustainable. The substantial questions of law are thus answered in favour of the plaintiff / appellant.
18.In the result, the judgment and decree dated 16.03.2017 passed in A.S.No.50 of 2015 by the learned Principal District Judge, Coimbatore, reversing the judgment and decree dated 03.10.2012 passed in O.S.No.739 of 2009 by the learned I Additional Subordinate Judge, Coimbatore, stands set aside and the Second Appeal is allowed. No costs. Consequently, connected Civil Miscellaneous Petition is closed.
26 / 04 / 2022
Index : Yes/No
Internet : Yes/No
TK
To
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SA NO.478 OF 2017
1.The Principal District Judge
Coimbatore.
2.The I Additional Subordinate Judge
Coimbatore.
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SA NO.478 OF 2017
M.GOVINDARAJ, J.
TK
SA NO.478 OF 2017
26 / 04 / 2022
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