Madras High Court
S. Santha Rajagopal vs T. Sadasivam on 21 December, 2009
Author: B. Rajendran
Bench: B. Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21-12-2009
Coram
THE HONOURABLE MR. JUSTICE B. RAJENDRAN
A.S. No. 536 of 1991
and
C.M.P. No. 10026 of 2006
S. Santha Rajagopal .. Appellant
Versus
1. T. Sadasivam
2. K.T. Dhandayutham
3. T.Narayanan
4. Saraswathi Ammal
5. Suguna
6. Shyamala .. Respondents
Appeal filed under Section 96 of the Code of Civil Procedure against the decree and judgment dated 15.11.1990 made in O.S. No. 51 of 1983 on the file of the Principal Subordinate Judge, Salem.
For Appellant : Ms. P.T. Asha
for M/s. Sarvabhauman Associates
For Respondents : Mr. K.C. Rajappa for RR1 to 3
Mr. T.R. Rajaraman for RR4 to 6
JUDGMENT
The unsuccessful plaintiff before the court below is the appellant in this appeal suit. The plaintiff has filed O.S. No. 51 of 1983 for specific performance and prayed to direct the defendants to execute the sale deed in favour of the plaintiff free from all encumbrances after receiving the balance sale consideration of Rs.89,000/- and on their failure to do so, to execute the sale deed through Court. On dismissal of the suit, the present appeal has been filed.
2. The averments contained in the plaint are that on 10.04.1980, Thamanna Chettiar, the first defendant in the suit, entered into an agreement of sale with the plaintiff agreeing to sell the property for a sum of Rs.1,00,000/-. The time for execution of the sale deed was fixed at three months. The Plaintiff paid an advance of Rs.20,000/- on the date of signing of the agreement of sale. Subsequent to the execution of agreement of sale, since the sons of the first defendant have filed a suit in O.S. No. 905 of 1980 restraining the first defendant from executing any sale deed in favour of the plaintiff or from alienating the suit property to third parties and also obtained an order of injunction obtained against the first defendant, the first defendant has made an endorsement in the reverse of the sale agreement thereby agreed to extend the period for completing the sale from 10.07.1980 for a further period of two years. It was further averred that since the period was extended by another two years, a sum of Rs.10,000/- out of the advance amount of Rs.20,000/- was returned by the first defendant to the plaintiff and an endorsement to that effect was also made in the agreement of sale in which both the parties have signed. On 30.10.1982, the first defendant sought for another six months time till 10.01.1983 for completing the sale and received a sum of Rs.1,000/- towards further sale advance for which also an endorsement was made. According to the plaintiff, the property agreed to be sold by the first defendant is the portion of the property allotted to him in a family partition and therefore, the first defendant, being the absolute owner, is having every right to sell the property to the plaintiff.
3. According to the plaintiff, inspite of repeated demands made by her, the first defendant has not even disclosed the result of the suit filed by his sons against him and failed to execute the sale deed in her favour. Thereafter, the plaintiff came to know that the first defendant colluded with his sons and filed the suit in O.S. No. 905 of 1980 with a view to delay the execution of the sale deed. The Plaintiff has also stated that she was always ready and willing to perform her part of the contract. Infact, the plaintiff was ready to pay the balance sale consideration of Rs.89,000/- and get the sale deed executed in her name.
4. In view of the delay on the part of the first defendant to execute a sale deed, the plaintiff issued a notice dated 24.12.1982 through her advocate calling upon the first defendant to execute the sale deed, but the first defendant evaded and avoided to receive the notice, hence, the suit was filed. Pending suit, the first defendant died on 04.08.1983 leaving behind the defendants 2 to 7 as his legal heirs, therefore, they were impleaded as defendants in the suit. It was further pleaded by the plaintiff that the first defendant had executed a registered 'Will' dated 10.04.1974 bequeathing the suit property in favour of the defendants 5 to 7 exclusively and therefore also the defendants 2 to 7 were added as parties to have a binding adjudication.
5. The first defendant, even during his life time, filed written statement. In the written statement, the first defendant admitted the execution of agreement of sale, which was marked as Ex.A1 in favour of the plaintiff, but he would only contend that his sons have filed O.S.No. 915 of 1980 on the file of the District Munsif Court, Salem, challenging his legal right over the property stating that he is having only a life estate over the suit property and therefore he has no right to sell the suit property to the plaintiff. Furthermore, the suit was decreed exparte on 03.09.1982 due to his non-appearance and that he was taking steps to get the exparte order set aside. He would further contend that he is the absolute owner of the property and that the plaintiff and her husband are tenants in the suit property. Even though he was ready to receive the balance sale consideration and execute the sale deed, the plaintiff refused to pay the amount inspite of several requests made by him. It is only the plaintiff who had not fulfilled the terms of the contract and therefore she had lost all her rights and consequently the contract cannot be enforced.
6. After the death of the first defendant, the defendants 3 and 4 have jointly filed a written statement contending interalia that they have obtained interim injunction restraining their father, the first defendant, from alienating or dispossessing the suit property. The suit was originally decreed exparte on 03.09.1982. Thereafter, an application in I.A. No. 167 of 1983 was filed for condoning the delay in filing an application to set aside the exparte decree and another application for setting aside the exparte decree, in which they have filed counter challenging the maintainability of the said applications. The widow and daughters of Thamanna Chettiar, the first defendant, have also filed I.A.Nos. 1601 and 1602 of 1983 to bring them on record. According to the defendants 3 and 4, the plaintiff is fully aware of the pendency of the litigation, which commenced a little time after the alleged sale agreement entered into by the plaintiff with the first defendant and therefore the so-called endorsement dated 05.07.1980 at the reverse of the agreement of sale, extending the time for completing the sale by two years, is illegal and not sustainable. When the legal right of the first defendant itself was questioned by filing O.S. No. 915 of 1980, the suit for specific performance is not maintainable and the suit is hit by the principles of lis pendence. They would further contend that the endorsement in the agreement itself would reveal that it is an expression of inability to convey the property to the plaintiff and in such an event, the first defendant cannot have the right to extend the time for completing the contract. It was also specifically contended that by virtue of the endorsement dated 05.07.1980 and return of part of the sale advance to the tune of Rs.10,000/-, the sale agreement has become unenforceable in law. They would further contend that the first defendant has no legal right to execute the sale deed free from any encumbrance in view of the pendency of O.S. No. 915 of 1980. It was further contended that the plaintiff was never ready and willing to pay the amount and the readiness and willingness has not been proved by her. It was also contended that the second endorsement for extension of the contract made on 30.06.1982 has not been endorsed in the alleged agreement of sale dated 10.04.1980. The Plaintiff, having realised the impediment in getting the sale deed due to the litigation has given up the idea of entering into the contract and therefore the readiness and willingness projected by her is false. They would further contend that they have challenged the alleged partition deed dated 19.05.1961 by which the first defendant has got right to execute the sale agreement on the ground that the suit property is not the property of the first defendant. The fact that part of the sale amount was returned to the plaintiff would disentitle her from seeking the relief of specific performance.
7. The defendants 2 to 4 have also filed additional written statement wherein they have stated that the endorsements are all invalid as at that time the suit filed by the sons of first defendant in O.S.No. 915 of 1980 was pending.
8. The fifth defendant filed separate written statement which was adopted by the sixth and seventh defendants. The fifth defendant would contend that the first defendant was not the owner of the property and the agreement of sale is invalid and not binding on them. It was further stated that the plaintiff has not fulfilled her part of the contract and therefore she is not entitled for the relief. The Plaintiff's husband, who was a tenant and paying the rent to the fifth defendant, had abruptly stopped paying the rent. Therefore, according to the fifth defendant, the plaintiff and the defendants 2 to 4 are colluding with each other. The first defendant was always ready and willing to perform his part of the contract, but the balance sale consideration was not paid by the plaintiff and therefore, the agreement of sale is unenforceable. It was further contended that if the suit is to be decreed, the defendants 5 to 7 alone are entitled to get the balance sale price and as per the Will executed by the first defendant, they are entitled to get the subject matter of the property.
9. In the additional written statement filed by the seventh defendant, the endorsement made on 05.07.1980 was denied and the discrepancy relating to the date made by one of the witnesses as 15.07.1980 was pointed out.
10. The Plaintiff filed reply statement in regard to the discrepancy pointed out in the additional written statement regarding the wrong mentioning of the date by one of the witnesses in the endorsements and claimed that it is only due to inadvertence. Even otherwise, if 15.07.1980 is taken into consideration, the suit is not barred by limitation.
11. Before the court below, on the side of the plaintiff, PWs 1 to 3 were examined and Exs. A1 to A10 were marked. On behalf of the defendants, DWS 1 and 2 were examined and Exs. B1 to B6 were marked. Based on the pleadings, evidence on record and the arguments made on both sides, the court below concluded that the plaintiff is not entitled for the relief of specific performance. Even though alternative plea of return of the money was not sought for, since it was admitted by both sides that amount was paid by the plaintiff, the court below ordered for refund of the advance amount of Rs.11,000/- with interest to the plaintiff. The Plaintiff, aggrieved by the decree granted by the court below only to the extent of getting refund of the advance amount, has filed the present appeal suit.
12. Heard the counsel for the parties. The points for consideration in this appeal are
i) Whether as per the endorsement dated 05.07.1980, Ex.A2, made in Ex.A1, agreement of sale, along with the refund of part of the advance amount, will make the contract forfeited?
ii) Whether the contract entered into between the parties are concluded contract?
iii) Whether the suit for specific performance is hit by the principles of lis pendence in view of the pendency of O.S. No. 915 of 1980 filed by the sons of the first defendant?
iv) Whether the plaintiff is entitled for the relief of specific performance?
13. Ms. Asha, learned counsel appearing for the plaintiff vehemently contended that as per the agreement of sale, Ex.A1 dated 10.04.1980, the period of the contract was fixed at three months, which expired on 10.07.1980. The sale price fixed was Rs.1,00,000/- out of which a sum of Rs.20,000/- was paid by the plaintiff to the first defendant as advance. As per the recitals in the agreement of sale, the vendor Thamanna Chettiar, the first defendant in the suit, had acquired clear title over the suit property by virtue of a settlement deed dated 17.06.1961 pursuant to which he was in possession and enjoyment of the suit property. Therefore, the first defendant has a valid right and saleable interest over the suit property. It was further argued that before expiry of three months, the sons of the first defendant have filed O.S. No. 915 of 1980 for the relief that the suit property belonged to them, the first defendant has got only life estate right and after the life time of the first defendant, the property would automatically devolve upon them, hence, they have filed the suit and sought for possession of the property. In that suit, as early as on 14.05.1980, an interim injunction was granted restraining the first defendant from encumbering or alienating the suit property. Pursuant to that, the first defendant was prohibited from executing the sale deed in favour of the plaintiff. Therefore, the first defendant and the plaintiff mutually entered into an understanding between them and agreed to extend the contract. It is further argued that only after the interim injunction granted by the Court, the endorsement, Ex.A2 dated 05.07.1980 was made in the original agreement, Ex.A1. In view of the fact that the contract is sought to be extended for a further period of two years, a part of the advance amount of Rs.10,000/- was received by the plaintiff. In the endorsement, Ex.A2, it was made clear that Rs.10,000/- alone is treated as advance and therefore, the first defendant, who was prohibited by an order of Court from executing the sale deed, as a law abiding citizen, has voluntarily come forward and executed Ex.A2, endorsement, as the plaintiff and first defendant have no go except to extend the period of contract. It was further argued that since the suit was pending, the first defendant further extended the time by six months upto 10.07.1982 by making an endorsement, Ex.A3. It was further argued that there was a minor discrepancy as one of the witnesses to Ex.A2 endorsement has mentioned the date as 15.07.1980 instead of 05.07.1980, which was only a bonafide and inadvertent mistake. Even assuming without admitting that the endorsement was made on 15.07.1980, the period was further extended by six months by virtue of an endorsement Ex.A3. In any view of the matter, such a discrepancy is only a minor one and it cannot be called as a legal flaw or otherwise.
14. It is further argued by the counsel for the plaintiff that even after extending the contract on two occasion, the suit was pending, besides that it was set exparte as against the first defendant and on the application filed by the first defendant, the exparte order was set aside. In the meantime, the wife and daughters of the first defendant have filed application to implead themselves by contending that they have right over the property. In such circumstance, there was a necessity to get the endorsement under Ex.A3. Moreover, the period under Ex.A2 came to an end on 10.07.1982 before the exparte order and therefore the plaintiff and first defendant have agreed to extend the contract period by another six months. To further strengthen the contract, apart from the advance amount of Rs.10,000/- in the hands of the first defendant, a further sum of Rs.1,000/- was paid by the plaintiff as advance which would indicate that the plaintiff was always ready and willing to pay the balance sale consideration. The fact that Rs.1,000/- was advanced by the plaintiff on that day i.e.,30.06.1982 for extending the contract by six months would only go to show that the plaintiff was ready and willing on her part and she has ready money available with her to pay. In fact, the documents namely income tax returns for the period 1983-1984, Exs. A6 to A10 would categorically indicate that the plaintiff has got means to pay the balance sale consideration. The income tax return comprised both the firm in which the plaintiff was a partner and her individual return, which would only disclose the plaintiff's readiness and willingness to undertake the contract. It will also indicate that the plaintiff can pay the balance sale consideration from the firm or from her own earnings, which are sufficient to show the readiness of the plaintiff. The learned counsel for the plaintiff/appellant would contend that the first defendant alone was responsible for the inordinate delay because his sons have filed O.S.No. 950 of 1980 after the execution of Ex.A1, agreement of sale to circumvent the legitimate claim of the plaintiff. The Plaintiff also came to know that the first defendant, along with his sons seems to have stage managed the whole transaction by inducing his sons to file a suit for injunction on the one hand and by making endorsements in favour of the plaintiffs extending the contract on the other hand. Therefore, at no point of time, the plaintiff could be found at fault. In fact, this will also be proved by the fact that the plaintiff has issued notice dated 24.12.1982, Ex.A4, calling upon the first defendant to receive the balance sale consideration and execute the sale deed. Even though it was served on the first defendant, the first defendant has not chosen to give any reply. The fact that the first defendant has not replied would prove that the default is only on the part of the first defendant and not on the plaintiff.
15. The learned counsel for the plaintiff further argued that since the first defendant in the written statement has not at all pleaded anything averse against the endorsements in Exs. A2 and A3, and he is the person who executed and having admitted the endorsements without any demur, the legal representatives on record, after his death, has no right to say anything about the endorsements in Exs. A2 and A3. Therefore, the defendants 2 to 7 are estopped and prohibited from claiming anything against the endorsement inasmuch as the executor himself, without any demur, admitted the sale agreement. Moreover, this defence is not open to the legal heirs of the first defendant. Inso far as the willingness and readiness is concerned, excepting a bald allegation made by the first defendant that the plaintiff was not ready to receive the balance sale consideration, no where it was pleaded by the first defendant that he has issued any notice calling upon the plaintiff to pay the balance sale consideration. Contra, the first defendant could not have demanded the balance sale consideration, because, by virtue of an order of injunction granted by the court, he was prohibited and restrained from executing the sale deed in favour of the plaintiff. Subsequently also, the suit itself was decreed exparte and on the application filed by the first defendant, the exparte order was set aside. Under those circumstances, the claim of the plaintiff has to be accepted inasmuch as she was always ready and willing to perform her part of the contract and prayed for setting aside the decree and judgment passed by the court below.
16. Per contra, Mr. K.C. Rajappa, learned counsel appearing for the Defendants 2 to 4 vehemently argued that the contract itself has become unenforceable for the reason that immediately after the execution of the sale agreement, the suit in O.S. No. 915 of 1980 was filed by the sons of the first defendant stating that the first defendant is not the absolute owner of the suit property and he has only life estate over the property. Furthermore, interim injunction was granted by the competent Court restraining the first defendant from executing the sale deed. Therefore, the endorsements on the back of the agreement namely Exs. A2 and A3 are invalid. The first defendant has no right to encumber the suit property. On the execution of the endorsement under Ex.A2, when part of the amount was re-paid by the vendor, the first defendant, to the plaintiff, the contract comes to an end and therefore the contract is unenforceable in law.
17. He further argued that the agreement itself is not a concluded contract in view of the subsequent development namely refund of 50% of the advance amount and even thereafter, subsequently, in the year 1982, a further advance of Rs.1,000/- was paid by the plaintiff, therefore, there is no concluded contract to be performed, hence, the sale agreement itself has become unenforceable in law. Further, the rights of the party has been in cloud, which is also the subject matter of a suit and therefore, the suit for specific performance is not maintainable when the other suit in O.S. No. 915 of 1980 was pending. In such circumstance, the suit filed by the plaintiff is hit by the principles of lis pendence and it is not maintainable in law.
18. The learned counsel for the Defendants 2 to 4 further pleaded that the plaintiff was never ready and willing to perform her part of the contract. The fact that the sale agreement was sought to be extended for a period of two years beyond the original period of three months on the ground that an order of injunction was passed by the competent court would indicate that the plaintiff was suffering to get along with the said transaction as it is no longer possible for her to have the sale deed executed. Inasmuch as the plaintiff also sought for second extension by six months, it has to be concluded that the plaintiff was never ready and willing to perform her part of the contract.
19. Lastly, he would contend that the plaintiff's husband was a tenant in respect of the suit property and he is fully aware that the first defendant has no manner of right to enter into the sale agreement. The Plaintiff's husband has manipulated the sale agreement and allegedly obtained extension for performance of the contract and therefore also the suit is not maintainable. He further contended that if the advance amount is sought for or refunded, then the contract cannot be proceed further and it cannot be a concluded contract.
20. Mr. T.R. Rajaraman, learned counsel for the defendants 5 to 7, who are wife and daughters of the first defendant Thamanna Chettiar, would contend that presently, the defendants 5 to 7 are the actual owners of the suit property by virtue of a Will executed by the first defendant and the same was also mentioned in the written statement. Furthermore, the suit in O.S.No. 915 of 1980 was disposed of by the court below during the pendency of the present appeal. In fact, the court below returned the plaint in O.S. No. 915 of 1980 to be presented in the appropriate court as the valuation of the suit property in that suit was questioned. The learned counsel also brought to the notice of this Court that another suit was filed by the mother of the defendants namely the fifth defendant for declaration to declare that the Will as null and void. Even that suit was also returned by the court below along with O.S. No. 915 of 1980 and both the suits were directed to be re-presented before the competent Court. Therefore, CMP No.10026 of 2006 was filed pending the present appeal for reception of additional documents namely the decree and judgment dated 17.07.1995 made in O.S. No. 915 of 1980 and the Plaint in P.O.P. No. 12 of 2002 on the file of the Subordinate Judge, Salem. Apart from this, the fifth defendant has also filed O.S. No. 330 of 2004 on the file of the Additional Fast Trck Court-II Salem whereby the validity of the Will has been upheld and the defendants 5 to 7 have been declared to be the owners of the suit property. According to the counsel for the defendants 5 to 7, this subsequent development is vital for adjudicating the present appeal and the petition filed for reception of additional documents has to be allowed. It was also contended that till date, the defendants 2 to 4 have not filed any appeal as against the judgment, therefore, the findings rendered in O.S.No. 330 of 2004 has become final which also clearly establishes that the first defendant was the owner of the suit property. Therefore, he would only contend that the first defendant, being the original owner of the property, has got right to execute the sale agreement in favour of the plaintiff, but the plaintiff was not ready and willing to perform her part of the contract, in other words, the readiness and willingness of the plaintiff has not been proved, hence, the suit for specific performance is not maintainable. He would further plead that if this Court considers that the plaintiff is entitled to a decree for specific performance, the sale consideration has to be paid only to the defendants 5 to 7, who have now become the owners of the suit property and the other defendants have no right, title or interest. As far as the endorsements, Exs. A2 and A3, the defendants 5 to 7 have neither raised any objection in the written statement, nor the learned counsel made any argument before this Court.
21. On careful consideration of the oral and documentary evidence let in both sides and the submission made by the counsel on either side, the main point which arise for consideration in this appeal, at this point of time, is the subsequent events that took place during the pendency of this appeal. It is now admitted by the parties concerned that the suit filed by the sons/defendants 2 to 4, as against the first defendant in O.S. No. 915 of 1980, challenging the legal right of the first defendant over the suit property, has been returned by the competent court for re-presentation before the appropriate court by a decree and judgment dated 17.07.1995 in view of the fact that the valuation of the suit itself has been questioned. It is also admitted that the sons/defendants 2 to 4 have not filed any appeal or any further suit pursuant to the return of the plaint in O.S. No. 915 of 1980 or re-presented the plaint before the appropriate Court. Similarly, the fifth defendant also filed a suit in P.O.P. No. 12 of 2002 before the Subordinate Judge, Salem for declaration to declare that she is entitled to enjoy the suit property till her life time, as per the Will executed by the first defendant on 20.04.1974 and 22.04.1974. The said P.O.P. No. 12 of 2002 was also returned for re-presentation before the appropriate Court. Thereafter, the fifth defendant has filed a suit in O.S. No.330 of 2004 for declaration to declare that as per the Will executed by the first defendant the defendants 5 to 7 have become the owner of the suit property. The court below also found that the Will executed by the first defendant is valid and the first defendant's right over the suit property has been confirmed. Ultimately, after contest by the sons, the said suit was decreed in favour of the fifth defendant, confirming the status of the first defendant as owner of the property. The copy of the judgment has also been produced for perusal of this Court. It is further admitted by all parties concerned that till today, even though the judgment was rendered in O.S. No. 330 of 2004 in the year 2007, the sons have not filed any appeal. Therefore, the decree and judgment made in O.S. No. 330 of 2004 has become final. This subsequent event is a vital aspect for adjudicating the present appeal. Since subsequent events have been brought to the notice of this Court by filing CMP No.10026 of 2006 and prayed to receive additional documents, which are necessary for effectively adjudicating the present appeal, there is no impediment in allowing this application and no serious objection has also made by the respondents in that petition, hence, CMP No.10026 of 2006 is ordered as prayed for. The decree and judgment in O.S. No. 905 of 1980 and the decree and judgment in O.S. No. 330 of 2004 and the plaint in P.O.P. No. 12 of 2002 are ordered to be marked as additional documents on the side of the defendants as Exs. B7 to B11.
22. It is clear from the subsequent events brought forth that the parties legal right has been adjudicated by a competent court and it has been established that the first defendant is the owner of the property. Therefore,the first defendant has got a legal right to execute the Will in respect of the suit property in favour of his daughters and wife and they become the present owners of the suit property. If this is taken into consideration, the first argument of the defendants 2 to 4 that the first defendant has no right to execute Ex.A1, sale agreement in favour of the plaintiff has completely shattered. The suit in O.S. No. 915 of 1980 filed by the defendants 2 to 4 was returned as early as on 17.07.1995 and they did not pursue the matter further. Admittedly, when the suit in O.S. No. 915 of 1980 was pending before the court below, the present suit in O.S. No. 51 of 1983 filed by the plaintiff for specific performance was also pending. It is true that interim injunction was granted in O.S. No. 915 of 1980 restraining the first defendant from executing the sale deed. When there was an injunction by a competent Court, naturally, even if the first defendant, on that date is considered to be the owner of the property, he could not execute the sale deed in favour of the plaintiff and he has to wait for the outcome of the suit. This has only necessiated the plaintiff and the first defendant to mutually extend the period of contract for two years by making endorsement, Ex. A2 dated 05.07.1980. Such an endorsement has been made for a limited purpose of extending the time for a further period of two years in view of the grant of interim injunction by the Court. The other clauses in Ex.A1, agreement of sale were not altered or modified except by extending the time. Whereas, the learned counsel for the defendants 2 to 4 mainly argued that there was a refund of a portion of the advance amount and if really the intention of the parties was to extend only the time, there need not be any refund. Once there is a refund of money, as per the decision of this Honourable Court, it would amount to forfeiture of contract or the contract itself cannot be called as a concluded contract. In this context, he relied on the decision reported in (A. Shanmugam and others vs. T.R. Kannappa Mudaliar and others) 1989 2 Law Weekly 274 to say that once there is a change in the advance amount, it is not a concluded contract and it is hit by Section 54 of the Transfer of Property Act. In Para No. 7, 12 and 13, it was held as follows:-
"7. The question whether a document constitutes a concluded contract has to be decided on the facts of each case. Where the parties contemplate a further agreement in writing, the question would be whether the execution of a further agreement is a term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the original agreement is to be performed....."
12. .....It is not disputed that the second respondent refunded the amount of advance and stated that he could not complete the transaction within a reasonable time. This clause itself would show that Ex.P1 was not intended tobe a concluded contract."
23. In the above decision, this Court held that whether a document constitutes a concluded contract or not has to be decided on the facts of each case. Where the parties contemplate a further agreement in writing, the question would be whether the execution of a further agreement is a term of the bargain or whether it is a mere expression of the desire of the parties as to the manner in which the original agreement is to be performed.
24. In the case on hand, a reading of Ex.A1, agreement of sale and the endorsements made therein namely Exs. A2 and A3 would disclose that it is an expression of desire of the parties as to the manner in which the original agreement is to be executed. This has also been proved by the fact that only 50% of the advance amount has been returned and the balance 50% of the advance amount was retained by the first defendant, therefore, it defines the fulfilment of the contract, coupled with the fact that in the second endorsement, a further time of six months was granted for execution of the sale deed and at that time a further sum of Rs.1,000/- was paid as sale advance. This would clearly indicate that the desire of the parties was to continue the contract. Therefore, the decision relied on by the counsel for the Defendants 2 to 4 only supports the case of the plaintiff.
25. The learned counsel for the Defendants 2 to 4 also relied on the decision reported in (Palaniappa Mudaliar vs. Sivanmalai Gounder) 1971 Law Weekly 392. In the said Ruling, the learned Judge of this Court held that it is recognised principle that all persons contemplating acquisition of property are bound to take notice of an action involving the title and will on their peril, purchase the same from any of the parties to the suit. The said observations clearly indicate that the parties to an agreement have to take notice of the pendency of the litigation. This decision also supports the case of the plaintiff. In this case, due to the suit filed by the defendants 2 to 4 against the first defendant, after the execution of Ex.A1, agreement of sale, the plaintiff and the first defendant mutually agreed to extend the period for performance of the contract by two years, which was further extended for another six months.
26. In the very same decision reported in (Palaniappa Mudaliar vs. Sivanmalai Gounder) 1971 Law Weekly 392 it was observed in para No.4 as follows:-
"4. Thus, while it has sometimes been said that a pendente lite purchaser 'takes nothing' it is generally held that the rule is not intended to nullify transfers or prevents sales of property, but merely to hold property within the jurisdiction and control of the Court pending determination of the controversy, thereby preventing third persons from acquiring such interests therein as would preclude giving effect to the judgment."
27. In the case on hand, the plaintiff was in occupation of the suit property as a tenant, waiting for the outcome of the litigation, which a normal prudent man would decide under those circumstances. Therefore, it cannot be said that the pendency of O.S. No. 905 of 1980 filed by the sons would in any manner affect the right of the plaintiff as an agreement holder.
28. The next decision relied on by the counsel for the Defendants 2 to 4 was reported in (Aniglase Yohannan vs. Ramlatha and others) (2005) (5) CTC 800 wherein in para No.12, the Honourable Supreme Court held as follows:-
"12. The basic principle behind Section 16 (c) read with Explanation (ii) is that any person seeking benefit of the specific performance of contractmust manifest that his conduct has been blemishless throughout entitling him to the specific relief. The provision imposes a personal bar. The Court is to grant relief on the basis of the conduct of the person seeking relief. If the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief."
29. In the above said decision, the Honourable Supreme Court cautioned that the Court must grant relief on the basis of the conduct of the person who seeks such relief and if the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief. In this case, the conduct of the plaintiff through out was that she should purchase the suit property lawfully and she expressed her desire to purchase the suit property, which is resonable and acceptable. On a reading of the plaint as a whole, this Court feels that the relief prayed for by the plaintiff should be granted.
30. The learned counsel for the Defendants 2 to 4 further relied on the decision of the Honourable Supreme Court reported in (H.P. Pyarejan vs. Dasappa (Dead) by LRs and others) 2006 2 SCC 496 to say that under Section 16 (c) of the Specific Relief Act, the requirements of the plaintiff is to aver in the plaint and establish the fact that he is always ready and willing to perform his part of the contract and his conduct should be throughout entitling him to the equitable relief of specific performance. In that case, it was held by the courts below that the plaintiff therein failed to establish that he was ready and willing to perform his part of the contract and therefore he was denied the relief. On second appeal, the High Court, without framing a substantial question of law rendered a decision, therefore, the Honourable Supreme Court set aside the Judgment of the High Court and remanded it for fresh consideration by framing questions of law. Therefore, the said decision will not be applicable to the case on hand.
31. As far as the principles of 'readiness and willingness' is concerned, the learned counsel for the Defendants 5 to 7 relied on the decisions reported in (i) (Aniglase Yohannan vs. Ramlatha and others) (2005) (5) CTC 800 (ii) (G. Ramalingam vs. T. Vijayarangam) 2007 (1) CTC 243 and (iii) (K.R. Venugopal vs. K.R. Srinivasan and 4 others) 2009 (1) CTC 803. As per the earlier discussion, the plaintiff has not only pleaded but also proved that she was always ready and willing to perform her part of the contract. Therefore, the above said decisions will not lend support to the argument of the counsel for the defendants 5 to 7. In the case on hand, the plaintiff not only issued notice before institution of the suit, but also pleaded in the plaint that she is always ready and willing to perform her part of the contract. She has also filed her Income Tax returns to show sufficiency of source for her to get the sale deed executed in her favour.
32. In so far as the principles of 'conclusiveness of the contract' the learned counsel for the Defendants 2 to 4 relied on the decision reported in (Pukhraj D. Jain and others vs. G. Gopalakrishna) 2004 (3) CTC 308 and (P. Paneerselvam vs. A. Baylis) 2005 (5) CTC 17.
33. In the decision of the Honourable Supreme Court in (Pukhraj D. Jain and others vs. G. Gopalakrishna) 2004 (3) CTC 308 the agreement holder originally instituted a suit for recovery of the advance amount paid and later on filed an application to amend the suit as one for specific performance. That application was dismissed and thereafter the plaintiff in that suit filed a suit for specific performance. The Honourable Supreme Court held that the plaintiff, having issued a notice rescinding the contract and thereafter filed a suit for recovery of money, he is not entitled to seek for specific performance. In that case, curiously, the agreement holder has filed a suit for return of money, which was decreed and thereafter, the plaintiff himself filed a revision to get an order of rejection of the plaint. In this case, the facts are totally different and there was no demand from the plaintiff for refund of money. Therefore the said decision is not applicable to the facts of the case on hand.
34. In the decision reported in (P. Paneerselvam vs. A. Baylis) 2005 (5) CTC 17, a Division Bench of this Court held in para No.14 and 23 as follows:-
"14. In the present case,the only certainity is regarding the total consideration amount of Rs.1,00,000/- which was admittedly paid to the defendant. However, neither the identity of the land to be sold nor the extent of land to be sold nor even the rate of land per cent had been indicated. In such a scenario, it is difficult to accept the contention of the learned senior counsel for the respondent that a completed agreement was in existence between the parties.
23. In the present case,the defect in the agreement is not that the consideration amount had not been fixed. As a matter of fact, the total consideration of Rs.1,00,000/- had been paid. The difficulty is regarding the property, which was to be sold. The agreement does not specifically indicate that a particular property was tobe sold. The agreement merely indicates that out of future property to be acquired or from the property already acquired, property worth Rs.1,00,000/- is to be conveyed. If there would have been acceptable materials to indicate that in fact theparties had agreed the land required to be sold at a particular rate per cent, even the Court could have come to the assistance of the plaintiff by saying that the land of equivalent value is required to be sold. In the present case, in the absence of any rate regarding the rate per cent and in the absence of specific identity of the property, we are constrained to come to the conclusion that the plaintiff cannot seek for specific performance of the contract as the contract continues tobe vague and indefinite."
35. In that case before the Division Bench, the very identity of the land to be sold or extent of the land to be sold itself was in dispute. Therefore, it was held by the Division Bench of this Court that the contract is not a concluded contract and there cannot be any specific performance on the basis of such an agreement. In our case, admittedly, the contract has been concluded as the further course of execution of the contract alone was sought to be implemented by the first defendant by means of endorsements. Therefore, the plea of inconclusiveness of contract pleaded by the Defendants 2 to 4 has to be rejected.
36. Mr. T.R. Rajaraman, learned counsel for the Defendants 5 to 7 relied on the decision reported in (Vasantha and others vs. M. Senguttuvan) 1998 (I) CTC 186 to say that the plea of the plaintiff that she was ready and willing to perform her part of the obligation is unacceptable. In that decision, this Court held that the plea of readiness and willingness should not only be pleaded but it must be implemented in accordance with the terms stipulated in the agreement. As mentioned above, in this case, the plaintiff has come forward to get the sale deed executed in her favour, but for the injunction granted by the court, in a suit filed by the sons of the first defendant, she could not get the sale deed executed by the first defendant and only the time was extended for completion of the sale by making endorsements on the reverse of the agreement of sale. To prove that the plaintiff is having sufficient money, the plaintiff has produced the income tax return, both of the firm as well as her individual return, which would categorically indicate that she is having sufficient source of income to perform her part of the obligation. To prove that the plaintiff is having sufficient funds to get the sale completed, she need not carry the money with her, but it has to be proved by documentary and oral evidence. In this case, the plaintiff has proved beyond reasonable doubt that she is having ready money with her.
37. The learned counsel for the Defendants 2 to 4 contended that the plaintiff has not stepped into the witness box and her husband alone was examiined. This argument cannot be countenanced. In India, it is common that male members takes care of the requirements of the female and supports them in all their endeavours. Therefore, it cannot be attributed that there is anything wrong in not examining the plaintiff, that too in the year 1980. In his evidence, the plaintiff's husband also categorically stated that his wife is ready and willing to perform her part of the contract and also filed documentary evidence to prove the source of income. PWs 2 and 3 were also examined, who are attestors of the endorsements Exs. A2 and A3, who have categorically spoken about the manner in which the endorsements, Exs. A2 and A3, were attested by them. Moreover, the first defendant/vendor himself has filed a written statement, but he never chosen to oppose the execution of sale agreement, Ex.A1 and the endorsements thereof under Exs.A2 and A3. Therefore, it is not open to the sons, who are Defendants 2 to 4, to question the endorsements made in Ex.A1. Moreover, the Defendants 2 to 4 have wantonly and deliberately abandoned the suit filed by them in O.S. No. 905 of 1980, which is the basic cause for all these litigations. The Defendants 2 to 4, having abandoned the suit in O.S. No. 905 of 1980, which was returned for re-presentation before the competent court, it is not open to them to challenge the other proceedings. The conduct of the Defendants 2 to 4 only prove that they filed O.S. No. 905 of 1980 only to forestall the execution of sale by the first defendant in favour of the plaintiff. Moreover, the question of title over the property was also now settled and the Defendants 5 to 7 are entitled to the property as owners of the property. Therefore, the plaintiff is entitled toget the sale deed executed by the Defendants 5 to 7 in her favour.
38. In view of the foregoing discussions, all the questions of law framed in this appeal are answered in favour of the plaintiff and against the Defendants.
39. The learned counsel for the Defendants 5 to 7 now brought to the notice of this Court that since Ex.A1, agreement of sale was entered into between the deceased first defendant and the plaintiff in the year 1980, agreeing to sell the property for a sum of Rs.1,00,000/-, after 30 years, the value of the property has enhanced manifold and therefore prayed this Court to direct the plaintiff to pay additional amount for sale of the property by relying upon the decision of the Honourable Supreme Court reported in (Pratab Lakshman Muchandi and others vs. Shamlal Uddavadas Wadhwa and others) 2008 2 Law Weekly.
40. In that decision, the agreement of sale was entered into between the parties in the year 1982 and the judgment was rendered by the Honourable Supreme Court in the year 2008. It was held by the Honourable Supreme Court that since much water has flown under the bridge and the value of the real estate has shot up very high, while exercising jurisdiction under Section 20, the Court would like to be equitable and would not allow the sale of the property to be executed at Rs.1,20,000/- inasmuch as the litigation has prolonged for almost 25 years. Ultimately, the Honourable Supreme Court fixed the sale price at Rs.5 lakhs and totally on payment of Rs.6,10,000/- sale was directed to be executed.
41. Ms. P.T. Asha, learned counsel for the appellant submitted that no doubt the property is situate in a commercial hub in the city of Salem, however, the additional amount claimed by the Defendants is unreasonable. Further, for no fault of the plaintiff, the plaintiff should not be put to hardship by directing to pay additional amount. As per the decision of the Honourable Supreme Court, the plaintiff has to pay the market value of the property prevailing as on date. However, she prayed this Court to fix a reasonable amount as additional sale price.
42. Considering the fact that the value of the property has increased manifold in view of the pendency of the litigation between the parties for more than 29 years, following the decision of the Honourable Supreme Court stated supra, this Court feels that the defendants 5 to 7 are entitled for a reasonable enhancement in the sale amount. Moreover the plaintiff has lost her case before the Court below and only before this Court she has now succeeded. Even though the plaintiff was only a tenant, she is depositing the rent into the Court, which is also agreed by all the parties. The learned counsel for the Defendants 2 to 4 contended that even though the Defendants 2 to 4 have lost the legal battle, their mother and sisters can be granted higher sale amount.
43. On consideration of all the above factors, this Court feels that a sum of Rs.10,00,000/- as sale price would meet the ends of justice. As per the original sale agreement, Ex.A1, the value was fixed at Rs.1,00,000/- out of which plaintiff had already paid Rs.11,000/-. Therefore, the plaintiff has to pay Rs.10,89,000/- as sale price. Whatever amount deposited by the plaintiff into the Court towards rental amount can be treated as part of the sale amount and the balance amount, out of Rs.10,89,000/-, is payable by the plaintiff. On receipt of the sale price, the Defendants 5 to 7 are directed to execute the sale deed in favour of the plaintiff. Inasmuch as possession of the property continues with the plaintiff, the sale deed alone has tobe executed by the Defendants 5 to 7 and the question of delivering possession do not arise. The Defendants 2 to 4 are also directed to acknowledge the ownership of the suit property in favour of the Defendants 5 to 7.
44. In the result, the appeal suit is allowed setting aside the decree and judgment dated 15.11.1990 made in O.S. No. 51 of 1983 on the file of the Principal Subordinate Judge, Salem. No costs.
rsh To The Principal Subordinate Judge Sub Court Salem